PARKER v. MATCHETT

Filing 37

ENTRY ON SELECTED MATTERS - For the reasons discussed above: 1. Mr. Parker's motion for leave to amend his complaint, Dkt. No. 29 , is denied. This action shall continue to proceed with the complaint, Dkt. No. 2 , as the operative pleadi ng. 2. Mr. Parker's motion for summary judgment, Dkt. No. 31 , is denied. 3. Mr. Parker's motion asking the Court to forward discovery materials to Ms. Matchett, Dkt. No. 32 , is denied. 4. Mr. Parker's motion for assistance with recruiting counsel, Dkt. No. 30 , is denied without prejudice. 5. Mr. Parker shall have through September 10, 2018, to respond to Ms. Matchett's motion for summary judgment, Dkt. No. 33 . Mr. Matchett's response must comply with the requirements of Local Rule 56-1. The clerk is directed to include a copy of Local Rule 56-1 with Mr. Parker's copy of this Entry (SEE ENTRY). Signed by Judge William T. Lawrence on 8/13/2018. Copy to Plaintiff via US Mail. (Attachments: # 1 Local Rule 56-1 - Summary Judgment Procedure) (DWH)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
TERRY ALTON PARKER,
Plaintiff,
v.
MATCHETT,
Defendant.

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No. 2:17-cv-00568-WTL-DLP

ENTRY ON SELECTED MATTERS
This action is before the Court for resolution of several motions by Plaintiff Terry Parker.
I. Motion for Leave to Amend Complaint
Mr. Parker is an inmate confined at the U.S. Penitentiary at Terre Haute, Indiana. The
action has proceeded to this point with a single claim: that the Defendant Ashley Matchett, a
physical therapist, was deliberately indifferent to Mr. Parker’s serious foot injury when she met
with him on April 13, 2017.
Mr. Parker now seeks to amend his complaint to add additional defendants, including two
private companies and their owners and employees. Indeed, the proposed amended complaint
indicates that Ms. Matchett is an owner or employee of Terre Haute Physical Therapy, PC—not
an employee of the federal government.
Because Mr. Parker is a prisoner, his proposed amended complaint is subject to the
screening requirement of 28 U.S.C. § 1915A(b). Pursuant to 28 U.S.C. § 1915A(b), the Court must
dismiss a complaint if it is frivolous or malicious, fails to state a claim for relief, or seeks monetary
relief against a defendant who is immune from such relief. In determining whether a complaint
states a claim, the Court applies the same standard as when addressing a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6). See Lagerstrom v. Kingston, 463 F.3d 621, 624 (7th Cir.
2006). To survive dismissal,
[the] complaint must contain sufficient factual matter, accepted as true, to state a
claim for relief that is plausible on its face. A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Pro se pleadings such as Mr. Parker’s are construed
liberally and held to a less stringent standard than formal pleadings drafted by lawyers. Obriecht
v. Raemisch, 517 F.3d 489, 491 n.2 (7th Cir. 2008).
The amended complaint asserts claims of inadequate medical care provided by private
actors. Medical malpractice is a cause of action arising from state law—not from civil rights
protected by federal law. The Court allowed the original complaint to proceed under the theory
recognized in Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), on the
possibility that Ms. Matchett was a federal employee. But the proposed amended complaint
indicates that this is not the case. And Bivens only authorizes suits against federal employees or
agents—not private citizens or entities. See Corr. Servs. Corp. v. Malesko, 534 U.S. 61 (2001);
Holz v. Terre Haute Regional Hosp., 123 Fed. Appx. 712, 713 (7th Cir. 2005) (holding that a
prisoner cannot bring a Bivens claim against a private hospital or nurse who works at that hospital
because a “Bivens claim cannot be brought against a private entity (or individual), even if it is a
federal contractor”).
As presented, the proposed amended complaint does not include any allegations that would
raise a legal issue arising from the Constitution or laws of the United States as required by 28
U.S.C. § 1331. See Williams v. Aztar Ind. Gaming Corp., 351 F.3d 294, 298 (7th Cir. 2003)
(explaining federal courts may exercise federal-question jurisdiction when a plaintiff’s right to
relief is created by or depends on a federal statute or constitutional provision). Nor does it include
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any facts from which the Court could infer diversity of citizenship under 28 U.S.C. § 1332. See
Denlinger v. Brennan, 87 F.3d 214, 217 (7th Cir. 1996) (holding that failure to include allegations
of citizenship requires dismissal of complaint based on diversity jurisdiction). In short, the Court
would not have any basis to exercise jurisdiction over the claims presented in the proposed
amended complaint.
Because the Court would have to dismiss all claims in the proposed amended complaint,
Mr. Parker’s motion for leave to amend, Dkt. No. 29, is denied. This action shall continue to
proceed with the complaint, Dkt. No. 2, as the operative pleading.
II. Plaintiff’s Motion for Summary Judgment
Mr. Parker’s motion for summary judgment, Dkt. No. 31, is denied because it concerns
claims asserted in the proposed amended complaint.
III. Motion to Forward Information
Mr. Parker’s motion asking the Court to forward discovery materials to Ms. Matchett, Dkt.
No. 32, is denied. Litigants are responsible for serving their own discovery materials and may not
file them with the Court except as allowed by Local Rule 26-2.
Pursuant to Local Rule 26-2, “[d]iscovery materials (whether discovery requests, responses
or deposition transcripts) may not be filed with the court except in” limited circumstances. These
circumstances include when the request is the subject of a motion, at the start of a trial where the
discovery material will be used, and when a party must supplement the record for purposes of
appeal.
None of the circumstances noted in Local Rule 26-2 apply to the materials Mr. Parker has
filed with his motion. Discovery requests must be served on the party from whom discovery is

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sought, and discovery responses must be served on the party seeking discovery. Mr. Parker may
serve discovery requests and responses to Ms. Matchett’s attorney at the following address:
William W. Drummy
Wilkinson Goeller Modesitt Wilkinson & Drummy
333 Ohio Street
Terre Haute, IN 47808-0800
IV. Motion for Assistance with Recruiting Counsel
Mr. Parker has renewed his motion for assistance with recruiting counsel. “When
confronted with a request . . . for pro bono counsel, the district court is to make the following
inquiries: (1) has the indigent plaintiff made a reasonable attempt to obtain counsel or been
effectively precluded from doing so; and if so, (2) given the difficulty of the case, does the plaintiff
appear competent to litigate it himself?” Pruitt v. Mote, 503 F.3d 647, 654-655 (7th Cir. 2007).
The court must deny “out of hand” a request for counsel made without a showing of the plaintiff’s
reasonable efforts to obtain counsel on his own. Farmer v. Haas, 990 F.2d 319, 321 (7th Cir.
1993).
Mr. Parker’s motion indicates that he has contacted at least five attorneys or law firms on
his own and has not succeeded in obtaining assistance from any of them. Mr. Parker should
continue those efforts.
Nevertheless, the Court finds that—at this stage of the litigation—Mr. Parker is competent
to litigate this matter himself. The Court must analyze the plaintiff’s abilities as related to “the
tasks that normally attend litigation: evidence gathering, preparing and responding to motions and
other court filings, and trial.” Pruitt, 503 F.3d at 655. Accordingly, the question is not whether an
attorney would help the plaintiff’s case, but whether, given the difficulty of the case, the plaintiff
seems competent to litigate it himself. Id. at 653-655.

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Mr. Parker’s motion indicates that he has no difficulty reading or writing and that he
graduated high school. More importantly, the tasks to be completed and the legal issues involved
in them are not particularly complex.
Ms. Matchett has filed a motion for summary judgment asserting only one argument: that
she is not an employee of the U.S. government and that she therefore cannot be liable under Bivens.
The Court finds that Mr. Parker is capable of responding to this argument. His motion for
assistance with recruiting counsel, Dkt. No. 30, is therefore denied without prejudice. If this
action survives Ms. Matchett’s summary judgment motion, Mr. Parker may renew his motion.
V. Briefing Schedule on Defendant’s Motion for Summary Judgment
Ms. Matchett filed a motion for summary judgment on August 8, 2018. Mr. Parker shall
have through September 10, 2018, to respond to the motion. Mr. Matchett’s response must
comply with the requirements of Local Rule 56-1. The clerk is directed to include a copy of Local
Rule 56-1 with Mr. Parker’s copy of this Entry.
VI. Conclusion
For the reasons discussed above:
1. Mr. Parker’s motion for leave to amend his complaint, Dkt. No. 29, is denied.
This action shall continue to proceed with the complaint, Dkt. No. 2, as the
operative pleading.
2. Mr. Parker’s motion for summary judgment, Dkt. No. 31, is denied.
3. Mr. Parker’s motion asking the Court to forward discovery materials to Ms.
Matchett, Dkt. No. 32, is denied.
4. Mr. Parker’s motion for assistance with recruiting counsel, Dkt. No. 30, is
denied without prejudice.
5. Mr. Parker shall have through September 10, 2018, to respond to Ms.
Matchett’s motion for summary judgment, Dkt. No. 33. Mr. Matchett’s
response must comply with the requirements of Local Rule 56-1. The clerk is
directed to include a copy of Local Rule 56-1 with Mr. Parker’s copy of this
Entry.
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IT IS SO ORDERED.
_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Date: 8/13/18

Distribution:
TERRY ALTON PARKER
15381045
TERRE HAUTE - USP
TERRE HAUTE U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808
William W. Drummy
WILKINSON GOELLER MODESITT WILKINSON & DRUMMY
[e-mail]

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