REGAN v. JONES et al

Filing 38

ORDER ON DEFENDANT JONES' MOTION FOR SUMMARY JUDGMENT: The motion for summary judgment filed by Dr. Jones, dkt. 30 , is GRANTED. The clerk is directed to terminate Dr. Jones from the docket. No partial judgment shall issue. The Court will issue its ruling on the United States' motion to dismiss in due course by separate order. See Order. Signed by Judge James Patrick Hanlon on 8/28/2024.(Copy mailed to Plaintiff.) (LF)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
LEROY REGAN,

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Plaintiff,
v.
ROGER JONES, et al.,
Defendants.

No. 2:23-cv-00249-JPH-MKK

ORDER ON DEFENDANT JONES' MOTION FOR SUMMARY JUDGMENT
In this civil rights action, Plaintiff Leroy Regan alleges that Defendant Dr.
Roger Jones violated his Eighth Amendment rights by failing to provide adequate
medical care to his left hand. Mr. Regan is necessarily proceeding under the
theory of liability established in Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971). Dr. Jones has moved for summary
judgment. Dkt. [30]. Dr. Jones has designated evidence that he is an
independent contractor instead of a federal employee, and Mr. Regan has not
contested that evidence, so Dr. Jones cannot be liable under Bivens and his
motion is GRANTED.
I.
Standard of Review
A motion for summary judgment asks the Court to find that a trial is
unnecessary because there is no genuine dispute as to any material fact and,
instead, the movant is entitled to judgment as a matter of law. See Fed. R. Civ.
P. 56(a). When reviewing a motion for summary judgment, the Court views the
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record and draws all reasonable inferences from it in the light most favorable to
the nonmoving party. Khungar v. Access Cmty. Health Network, 985 F.3d 565,
572–73 (7th Cir. 2021). It cannot weigh evidence or make credibility
determinations on summary judgment because those tasks are left to the factfinder. Miller v. Gonzalez, 761 F.3d 822, 827 (7th Cir. 2014). A court only has to
consider the materials cited by the parties, see Fed. R. Civ. P. 56(c)(3); it need
not "scour the record" for evidence that might be relevant. Grant v. Trs. of Ind.
Univ., 870 F.3d 562, 573−74 (7th Cir. 2017).
A party seeking summary judgment must inform the district court of the
basis for its motion and identify the record evidence it contends demonstrates
the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986).
Whether a party asserts that a fact is undisputed or genuinely disputed,
the party must support the asserted fact by citing to particular parts of the
record, including depositions, documents, or affidavits. Fed. R. Civ. P. 56(c)(1)(A).
Failure to properly support a fact in opposition to a movant's factual assertion
can result in the movant's fact being considered undisputed. Fed. R. Civ. P. 56(e).
Plaintiff failed to respond to the summary judgment motion. Accordingly,
facts alleged in the motion are "admitted without controversy" so long as support
for them exists in the record. S.D. Ind. L.R. 56-1(b), (f) (party opposing judgment
must file response brief and identify disputed facts). "Even where a non-movant
fails to respond to a motion for summary judgment, the movant still has to show

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that summary judgment is proper given the undisputed facts." Robinson v.
Waterman, 1 F.4th 480, 483 (7th Cir. 2021).
II.
Factual Background
Because Dr. Jones has moved for summary judgment under Rule 56(a),
the Court views and recites the evidence in the light most favorable to the nonmoving party and draws all reasonable inferences in that party's favor. Khungar,
985 F.3d at 572–73.
Dr. Jones is a physician who provides care at the Federal Correctional
Complex at Terre Haute (FCC Terre Haute). Dkt. 30-1 (Jones Affidavit).
He is an independent contractor for Dymentum Health, LLC, which in turn
contracts with the Federal Bureau of Prisons to provide medical care at the
prison. Id. Because Mr. Regan has not responded to Dr. Jones's summary
judgment motion, these facts "are admitted without controversy" under Local
Rule 56-1(f). See also S.D. Ind. L.R. 56-1(e), (h); Hinterberger v. City of
Indianapolis, 966 F.3d 523, 527–30 (7th Cir. 2020) (upholding the district
court's application of Local Rule 56-1 and affirming summary judgment).
III.
Discussion
Dr. Jones argues that he's entitled to summary judgment because he
cannot be sued under Bivens because he is an independent contractor. Neither
a federal contractor nor an employee of a federal contractor can be sued for
a constitutional violation under the theory recognized in Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). See, e.g., Holz v. Terre
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Haute Reg'l Hosp., 123 F. App'x 712, 713 (7th Cir. 2005) ("A Bivens claim cannot
be brought against a private entity (or individual), even if it is a federal
contractor."); Minneci v. Pollard, 565 U.S. 118 (2012) (declining to extend
Bivens to private actors performing governmental functions for the purposes of
Bivens liability).
Mr. Regan has not responded to Dr. Jones' motion, after three months to
conduct limited discovery and file a brief in opposition. See dkts. 35, 36. The
uncontested evidence in the record shows that Dr. Jones is an independent
contractor. See dkt. 30-1 at 1 ("I have worked at FCC Terre Haute only in my
capacity

as

an

independent

contractor

with

Dymentum

Health,

LLC").

Accordingly, he cannot be held liable under the theory set forth in Bivens, and
he is entitled to summary judgment. See Decker v. Jones, et al, 2:23-cv-77-MPBMG, dkt. 53 (granting Dr. Roger Jones' motion for summary judgment on
identical grounds).
IV. CONCLUSION
For the reasons discussed above, the motion for summary judgment filed
by Dr. Jones, dkt. [30], is GRANTED. The clerk is directed to terminate Dr.
Jones from the docket. No partial judgment shall issue. The Court will issue its
ruling on the United States' motion to dismiss in due course by separate order.
SO ORDERED.
Date: 8/28/2024

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Distribution:
All ECF-registered counsel of record via email
LEROY REGAN
47114-424
TERRE HAUTE - USP
TERRE HAUTE U.S. PENITENTIARY
Inmate Mail/Parcels
P.O. BOX 33
TERRE HAUTE, IN 47808

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