Mann v. Harvey et al
Filing
125
MEMORANDUM Opinion and Order Signed by the Honorable Joan H. Lefkow on 11/26/2013: the defendant's motion for summary judgment [docket no. 33] is granted, and Plaintiff's cross-motion for summary judgment [docket no. 113] is denied. The Cl erk is directed to enter final judgment in favor of the defendant on his claim brought under 28 U.S.C. § 1331, and Bivens v. Six Unknown Agents, 403 U.S. 388 (1971). pursuant to Fed. R. Civ. P. 56. However, as stated in the Court's order o f May 22, 2013, the plaintiff may submit a proposed amended complaint pursuant to the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The plaintiff shall submit his proposed amended complaint within thirty days of the date of this opinion and order. If the plaintiff fails to comply, this case will be dismissed under the understanding that the plaintiff is no longer interested in pursuing his claims. Civil case terminated.Mailed notice(mad, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
JACK MANN (#22865-424),
Plaintiff,
v.
DR. HARVEY,
Defendant.
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No. 11 C 4625
Judge Joan H. Lefkow
MEMORANDUM OPINION AND ORDER
The plaintiff, a federal prisoner, presently in custody at Milan-FCI, has brought this pro
se civil rights action pursuant to 28 U.S.C. § 1331 and Bivens v. Six Unknown Agents, 403 U.S.
388 (1971). The plaintiff brings suit against Dr. Paul Harvey, a physician at the MCC, whom
the plaintiff represents to be the Regional Medical Director of the Federal Bureau of Prisons,
alleging that Dr. Harvey violated his constitutional rights by acting with deliberate indifference
to his medical needs.
More specifically, the plaintiff alleges that Dr. Harvey refused to
prescribe Provigil for him because it is not on the Bureau of Prisons’ formulary list. The
plaintiff had been prescribed Provigil prior to incarceration for the collateral effects of a
traumatic brain injury. This matter is before the Court for ruling on defendant Harvey’s motion
for summary judgment [document no. 33], and the plaintiff’s cross-motion for summary
judgment [document no. 113]. For the reasons stated in this order, the defendant’s motion is
granted, and the plaintiff’s motion is denied.
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no genuine
issue as to any material fact and the movant is entitled to a judgment as a matter of law.” Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Vision Church v. Vill. of
Long Grove, 468 F.3d 975, 988 (7th Cir. 2006). In determining whether factual issues exist, the
Court must view all the evidence and draw all reasonable inferences in the light most favorable
to the non-moving party. Weber v. Univ. Research Assoc., Inc., 621 F.3d 589, 592 (7th Cir.
2010). The Court does not “judge the credibility of the witnesses, evaluate the weight of the
evidence, or determine the truth of the matter. The only question is whether there is a genuine
issue of fact.” Gonzalez v. City of Elgin, 578 F.3d 526, 529 (7th Cir. 2009) (citing Anderson v.
Liberty Lobby, 477 U.S. 242, 249-50 (1986)).
However, Fed. R. Civ. P. 56 “mandates the entry of summary judgment, after adequate
time for discovery and upon motion, against a party who fails to make a showing sufficient to
establish the existence of an element essential to that party’s case, and on which that party will
bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “Where the record taken as a
whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine
issue for trial.” Sarver v. Experian Information Solutions, 390 F.3d 969, 970 (7th Cir. 2004)
(citations omitted). “A genuine issue of material fact arises only if sufficient evidence favoring
the nonmoving party exists to permit a jury to return a verdict for that party.” Egonmwan v.
Cook County Sheriff’s Dept., 602 F.3d 845, 849 (7th Cir. 2010) (quoting Faas v. Sears,
Roebuck & Co., 532 F.3d 633, 640-41 (7th Cir. 2008)).
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Local Rule 56.1(b) requires a party opposing a motion for summary judgment to file
(3) a concise response to the movant’s statement that shall
contain:
(A) numbered paragraphs, each corresponding to and stating a
concise summary of the paragraph to which it is directed, and
(B) a response to each numbered paragraph in the moving party’s
statement, including, in the case of any disagreement, specific
references to the affidavits, parts of the record, and other
supporting materials relied upon, and
(C) a statement, consisting of short numbered paragraphs, of any
additional facts that require the denial of summary judgment,
including references to the affidavits, parts of the record, and
other supporting materials relied upon...[.]
L.R. 56.1(b)(3) (N.D. Ill.).
The Court may rigorously enforce compliance with Local Rule 56.1 (N.D. Ill.). See,
e.g., Stevo v. Frasor, 662 F.3d 880, 886-87 (7th Cir. 2011) (“Because of the high volume of
summary judgment motions and the benefits of clear presentation of relevant evidence and law,
we have repeatedly held that district judges are entitled to insist on strict compliance with local
rules designed to promote the clarity of summary judgment filings”) (citing Ammons v.
Aramark Uniform Serv., Inc., 368 F.3d 809, 817 (7th Cir. 2004)). “We have ... repeatedly held
that a district court is entitled to expect strict compliance with Rule 56.1.” Cichon v. Exelon
Generation Co., 401 F.3d 803, 809 (7th Cir. 2005).
Neither party strictly adhered to the Local Rule, instead including multiple facts in one
“statement of fact,” indulging in argument, making legal conclusions instead of stating fact, and
including information not material to the question of whether the defendant acted within the
scope of his employment when he declined to prescribe the drug Provigil to the plaintiff at the
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MCC. However, all statements of fact are supported by citations to the record, and there is, in
actuality, very little disagreement between the parties as to what the facts are.
Accordingly, the Court will consider factual assertions made in all of the summary
judgment materials, to the extent that the facts asserted could be properly testified about based
on personal knowledge. Fed. R. Evid. 602.
FACTS
The plaintiff, Jack Mann, is a prisoner in federal custody at FCI Milan, in Milan
Michigan, and was formerly housed at the Chicago Metropolitan Correctional Center (MCC).
He filed a pro se complaint pursuant to 28 U.S.C. § 1331, and Bivens v. Six Unknown Agents,
403 U.S. 388 (1971). (See plaintiff’s complaint, docket no. 1).
Prior to the plaintiff’s
incarceration at the MCC, he suffered a traumatic brain injury. (See plaintiff’s statement of
additional facts, ¶ 3). The plaintiff alleges that Dr. Harvey refused to prescribe Provigil for him
because it is not on the Bureau of Prisons’ formulary list. (See plaintiff’s complaint, docket
no. 1, p. 4). The plaintiff alleges that the defendant’s denial of access to Provigil constitutes
gross negligence. Id.
The defendant has been assigned to the North Central Regional Office of the BOP as the
Medical Director from May 2009 to the present. (See the defendant’s statement of facts ¶ 1).
He was also assigned to the Metropolitan Correctional Center in Chicago (MCC) as the Clinical
Director from August 2007 through August 2011. (Id.) As a physician for the Bureau of
Prisons, the defendant has a duty to effectively deliver medically necessary health care to
inmates in accordance with accepted standards of care. (See the plaintiff’s additional statement
of facts, ¶ 1).
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During his tenure as the Regional Medical Director, the defendant provided direct
medical care to federal inmates detained at the Metropolitan Correctional Center (MCC). (See
the defendant’s statement of facts ¶ 2).
The patient care included evaluating patients,
diagnosing illnesses and prescribing medications. (Id.) As a pre-trial detention facility, MCC
Chicago had the responsibility to treat a wide range of medical conditions, including inmates
with a history of traumatic brain injury. (Id.) As the Regional Medical Director, Dr. Harvey
was also responsible for reviewing non-formulary requests from physicians in the North Central
Region and reviewing consults submitted for elective medical care. (Id.)
Medical records indicate that the defendant met with the plaintiff directly on two
occasions on Bureau of Prisons premises and co-signed for mid-level professionals on seven
occasions at the MCC from January 2010 through October 2011.
statements of facts ¶¶ 3 and 5).
(See the defendant’s
The plaintiff disagrees with the characterization of the
meetings as “treatment” because, in part, the defendant did not prescribe Provigil for him. (See
the plaintiff’s response to the defendant’s statement of facts, ¶ 3). The plaintiff informed the
defendant of his pre-existing traumatic brain injury at their first meeting. (See the plaintiff’s
statement of additional facts, ¶ 3).
At the initial meeting on January 14, 2010, the plaintiff informed the defendant that he
had an existing prescription for Provigil upon entering the MCC, but that the plaintiff did not
bring any of the previously prescribed Provigil with him to the MCC. (See the plaintiff’s
statement of additional facts, ¶ 4, and see the plaintiff’s complaint, p. 13).
The defendant
informed the plaintiff that he would not be prescribing Provigil for him at the MCC. (See the
plaintiff’s statement of additional facts, ¶ 5). The defendant testified in deposition that the
reason he did not prescribe the plaintiff Provigil was because it was not approved by the federal
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Food and Drug Administration for treatment of collateral effects of traumatic brain injury. (See
the plaintiff’s L.R. 56.1 statement, Exhibit B, def. deposition, p. 11:5-12).
The defendant informed the plaintiff on March 26, 2010, that he would not be prescribed
Provigil because he was observed to be medically stable since the medication was discontinued
and because the need for the medication was not clinically indicated. (See plaintiff’s complaint,
docket no. 1, p. 13). The plaintiff believed that the defendant’s response in denying him a
prescription for Provigil was dismissive and curt. Id.
The defendant did not review the
plaintiff’s medical records prior to deciding not to prescribe him Provigil. (See the plaintiff’s
statement of additional facts, ¶ 8).
The defendant again declined to prescribe Provigil for the plaintiff on April 15, 2011,
after reviewing the plaintiff’s outside medical records.
(See the plaintiff’s statement of
additional facts, ¶ 9).
When the plaintiff left the MCC and was transferred to FCI-Milan, the doctor treating
him there prescribed Provigil for the plaintiff, and the defendant approved the prescription in
his capacity as the Regional Medical Director on January 9, 2012. (See the plaintiff’s statement
of additional facts, ¶ 13).
The documents authorizing the plaintiff’s prescription for Provigil
indicated that the drug historically had reversed the adverse collateral effects of the plaintiff’s
injuries, that the plaintiff “improved greatly” after being prescribed Provigil in 2004, and the
reasons why formulary medications should not be used to treat the plaintiff. (See the plaintiff’s
statement of additional facts, ¶ 14). The plaintiff was also enrolled in the chronic care clinic at
Milan in order to treat his history of traumatic brain injury. (See the plaintiff’s statement of
additional facts, ¶ 15).
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ANALYSIS
The defendant’s motion for summary judgment asks the court to decide a narrow
question. It does not argue that the defendant was not deliberately different, rather it asks
whether, in denying the plaintiff a prescription for Provigil while he was incarcerated at the
MCC, the defendant was acting within the scope of his employment. The reason for this narrow
inquiry is that pursuant to 42 U.S.C. § 233(a), a suit against the government under the FTCA is
the exclusive remedy for a claim against a member of the Public Health Service (PHS)
involving the performance of medical or related functions within the scope of the PHS
member's employment, including treatment of or failure to treat an inmate. Hui v. Castaneda,
130 S. Ct. 1845, 1851, 176 L. Ed. 2d 703 (2010). Federal law governs whether a federal
employee was acting within the scope of his employment, Gutierrez de Martinez v. Lamagno,
515 U.S. 417, 435 (1995), but a federal court looks to the law of the state where the alleged acts
took place, in this case Illinois. See Rappe v. Harvey, Case No. 10 C 4636, 2011 U.S. Dist.
LEXIS 122462 (N.D. Ill.) (Kennelly, J.); see also Snodgrass v. Jones, 957 F. 2d 482, 485 (7th
Cir. 1992).
Under Illinois law, “no precise definition has been accorded the term 'scope of
employment,' but broad criteria have been enunciated.” Taboas v. Mlynczak, 149 F.3d 576, 582
(7th Cir, 1998); quoting Pyne v. Witmer, 129 Ill. 2d 351, (Ill. 1989) (quotation and citation
omitted). An employee's action falls within the scope of employment if “(a) it is of the kind he
is employed to perform; (b) it occurs substantially within the authorized time and space limits;
(c) it is actuated, at least in part, by a purpose to serve the master.” Taboas v. Mlynczak,
149 F.3d at 582 (citing Restatement (Second) of Agency § 228 (1958)).
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In support of his motion, the defendant cites to a case in which a police officer who
twice shot a prone arrestee in the head was determined by the court to be acting within the
scope of his employment. See Graham v. Sauk Prairie Police Commision, 915 F.2d 1085 (7th
Cir. 1990). The court held that the police officer’s actions were unquestionably within the
scope of his employment because they were not disconnected from the type of services
ordinarily contemplated by a police officer. Id. at 1085 (emphasis in the original). In its
analysis, the Graham court stressed the fact that the officer, as in the instant case, was on duty,
in uniform, and encountered the plaintiff only as a result of conducting official police business.
Id. The defendant in the present case was working at the MCC in his capacity as its clinical
director, evaluating the plaintiff on initial intake when he made his decision to deny him a
prescription for Provigil. Accordingly, like the police officer in Graham, no reasonable jury
could infer that he was acting outside of the scope of his employment.
The plaintiff argues that in denying him the prescription for Provigil, the defendant was
rude, curt, and dismissive. However, ulterior motives, even if malicious and improper, do not
change the objective determination of the scope of employment. Wilson v. City of Chicago,
900 F. Supp. 1015, 1030 (N.D. Ill) (1990) (Gettleman, J.).
To the extent that the plaintiff
argues that the defendant acted in a way that violated BOP rules or protocols, the court has held
that so long as the services contemplated, if not the outcome, further the purpose of his
employment, they are within its scope. Hibma v. Odegaard, 769 F.2d 1147, 1153 (7th Cir.
1985) (employees acted within scope of employment in performing job duties even though they
used improper methods of carrying out those duties).
The plaintiff also argues that once he was transferred to FCI Milan, his physician there
prescribed him Provigil, and the defendant approved the prescription, in his capacity as the
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Regional Medical Director for the Bureau of Prisons. This argument is flawed because the
decision to approve was made in a different employment role (Regional Medical Director not
Clinical Director of the MCC) and was upon the recommendation/prescription of another
doctor. The decision to approve the prescription of another doctor was within the scope of the
defendant’s employment as Regional Medical Director, just as his decision to refuse to
prescribe, while the plaintiff was at the MCC was within the scope of his employment as the
Clinical Director at the MCC.
Finally, the plaintiff argues that the defendant not only denied him the prescription for
Provigil, he also refused to provide any kind of alternative treatment. However, the record
indicates that after the initial intake and decision not to prescribe Provigil, the defendant
reviewed the plaintiff’s case on March 26, 2010, that the plaintiff was observed to be medically
stable since being taken off the medication upon intake on January 14, 2010. The defendant
again denied the prescription, within the scope of his job duties, on April 15, 2010. Thus, the
record contradicts the plaintiff’s assertion that he received no treatment; rather, it supports a
finding that he did not receive the treatment he wanted.
Accordingly, the Court finds that the record supports a finding that the defendant acted
within the scope of his employment and, therefore is immune from suit under 42 U.S.C.
§ 233(a). Because the defendant is immune under the statute, he is also immune from suit
under the doctrine set out in Bivens v. Six Unknown Agents, 403 U.S. 388 (1971), and his
exclusive remedy is under the Federal Tort Claims Act, 28 U.S.C. § 1346(b). The defendant’s
motion for summary judgment is granted, and the plaintiff’s cross motion is denied.
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CONCLUSION
IT IS THEREFORE ORDERED that the defendant’s motion for summary judgment
[docket no. 33] is granted, and Plaintiff’s cross-motion for summary judgment [docket no. 113]
is denied. The Clerk is directed to enter final judgment in favor of the defendant on his claim
brought under 28 U.S.C. § 1331, and Bivens v. Six Unknown Agents, 403 U.S. 388 (1971).
pursuant to Fed. R. Civ. P. 56. However, as stated in the Court’s order of May 22, 2013, the
plaintiff may submit a proposed amended complaint pursuant to the Federal Tort Claims Act,
28 U.S.C. § 1346(b). The plaintiff shall submit his proposed amended complaint within thirty
days of the date of this opinion and order. If the plaintiff fails to comply, this case will be
dismissed under the understanding that the plaintiff is no longer interested in pursuing his
claims.
Date: November 26, 2013
Enter: _________________________________
JOAN H. LEFKOW
United States District Judge
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