Hartstein v. Pollman et al

Filing 58

MEMORANDUM AND ORDER, The Court ADOPTS the Report in its entirety (Doc. 56 ); OVERRULES Hartsteins response/objections (Doc. 57 )GRANTS Pollmans motion to dismiss Counts 1 and 3 against her; DISMISSES Counts 1 and 3 against Pollman and Count 4 in its entirety without prejudice; and DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case. Signed by Judge J. Phil Gilbert on 3/24/2015. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
KAREN HARTSTEIN,
Plaintiff,
v.

Case No. 13-cv-1232-JPG-PMF

L. POLLMAN, DR. D. KRUSE and WARDEN
OF GREENVILLE CORRECTIONAL
CENTER,
Defendant.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
56) of Magistrate Judge Philip M. Frazier recommending that the Court grant defendant Lee
Pollman’s motion to dismiss Counts 1 and 3 against her for lack of subject matter jurisdiction
(Doc. 40) and sua sponte dismiss without prejudice plaintiff Karen Hartstein’s state law medical
malpractice claim in Count 4 for failure to obtain the necessary medical certificate. Hartstein has
responded to the Report (Doc. 57).
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are made.
Id. “If no objection or only partial objection is made, the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
In this case, Hartstein, a Bureau of Prisons (“BOP”) inmate, complains that she is not
receiving appropriate breast health screening. She brings two claims against Pollman, the health
services administrator, under Bivens v. Six Unknown Agents, 403 U.S. 388 (1991), alleging

violations of the Eighth Amendment (Count 1) and Equal Protection Clause (Count 3).
Magistrate Judge Frazier found in the Report that Pollman was an employee of the United States
Public Health Service (“PHS”) and is therefore absolutely immune from Hartstein’s Bivens claims
because of 42 U.S.C. § 233(a). That statute provides that a claim under the Federal Tort Claims
Act is the exclusive remedy for injury resulting from the performance of medical functions by an
employee of the PHS. Magistrate Judge Frazier also recommends sua sponte dismissal of
Hartstein’s state law medical malpractice claim because Hartstein, after adequate time, has been
unable to obtain the physician’s certificate required under Illinois law. See 735 ILCS § 5/2-622.
In her response, Hartstein objects to dismissal of her state law claim for medical
malpractice. She argues she was unable to obtain the certificate because prison medical staff did
not release her medical records to her in a timely manner. She further suggests Pollman was
acting outside the scope of her duties as a PHS employee when she made decisions about
Hartstein’s breast screening exams because those decisions were wrongful.
The Court has reviewed the matter de novo and agrees with the Report for the reasons
stated therein. Hartstein was given adequate time to obtain the necessary certificate to bring a
state law medical malpractice claim and was unable to do so. As for her Bivens claims at issue in
Pollman’s motion to dismiss, the assertion that Pollman was not acting within the scope of her
employment by the PHS is belied by the alleged conduct Hartstein finds objectionable – failing to
order medical screening exams. This conduct could only have occurred within the scope of
Pollman’s PHS duties; performing those duties negligently, as Hartstein alleges, does not remove
them from the scope of Pollman’s official duties.
For the foregoing reasons, the Court:


ADOPTS the Report in its entirety (Doc. 56);



OVERRULES Hartstein’s response/objections (Doc. 57);
2



GRANTS Pollman’s motion to dismiss Counts 1 and 3 against her;



DISMISSES Counts 1 and 3 against Pollman and Count 4 in its entirety without prejudice;
and



DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.

IT IS SO ORDERED.
DATED: March 24, 2015
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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