HIGGINS v. UNITED STATES OF AMERICA et al

Filing 52

ORDER - Nurse McGuire's motion to dismiss, dkt. 30 , is granted. PT Matchett and Dr. Joseph's motions for summary judgment, dkts. 34 , 40 , are granted. Mr. Higgins' motion for a stay, dkt. 50 , is denied.The clerk is directed to correct the name of Defendant McGuire to "Nurse Cody McGuire" on the docket. The clerk is directed to correct the name of Defendant Joseph to "Doctor Lolit Joseph" on the docket. The clerk is directed to remove Nurse McGuire, PT M atchett, and Dr. Joseph as defendants on the docket.This action will proceed on FTCA claims against the United States and Rehabilitative Act claims against the Warden of USP-Terre Haute. The Court will set scheduling orders for these claims via separate orders. SEE ORDER. Signed by District Judge Jane Magnus-Stinson on 03/11/2025. Copy to Plaintiff via US Mail. (AAS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
TERRE HAUTE DIVISION
DEONDRE CORDELL HIGGINS,
Plaintiff,
v.
MCGUIRE Nurse,
ASHLEY MATCHETT Physical Therapist,
JOSEPH Doctor,
WARDEN OF USP-TERRE HAUTE,
UNITED STATES OF AMERICA,
Defendants.

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No. 2:23-cv-00355-JMS-MG

ORDER
Plaintiff Deondre Higgins, a federal inmate, filed this action alleging Federal Tort Claims
Act ("FTCA") negligence claims against the United States, Rehabilitation Act claims against the
Warden of USP-Terre Haute, and Bivens claims alleging constitutionally inadequate medical care
against Nurse Cody McGuire, 1 Physical Therapist ("PT") Ashley Matchett, and Dr. Lolit Joseph.2
Before the Court are: (1) a motion to dismiss claims against Nurse McGuire, dkt. 30, (2) a motion
for summary judgment regarding claims against PT Matchett, dkt. 34, (3) a motion for summary
judgment regarding claims against Dr. Joseph, dkt. 40, and (4) a motion to stay the Court's decision
on the pending motions for summary judgment, filed by Mr. Higgins, dkt. 50.
The Court addresses each motion separately, below.

1
2

The clerk is directed to correct the name of Defendant McGuire to "Nurse Cody McGuire" on the docket.
The clerk is directed to correct the name of Defendant Joseph to "Doctor Lolit Joseph" on the docket.

A. Factual Background
Mr. Higgins is paralyzed from the waist down. Dkt. 10 at 2. He alleges that on August 27,
2021, while being transported back to USP-Terre Haute prison, he was injured when he flipped
backwards in his wheelchair while handcuffed. Id. Specifically, two non-party officers failed to
lock the brakes on his wheelchair, failed to secure it, and then accelerated without warning, causing
the wheelchair in the moving van to flip over. Id. Then, despite being outside the hospital, the
officers failed to return him inside so he could receive medical care for his injuries. Id. When he
arrived back to the prison, he informed the individual defendants about what happened, but none
of them reported the incident. Id. at 3.
B. Nurse McGuire's Motion to Dismiss
1. Rule 12(b)(6) Standard
To survive a motion to dismiss, a complaint need only "contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)). In reviewing the
sufficiency of a complaint, the Court must accept all well-pled facts as true and draw all
permissible inferences in the plaintiff's favor. See Tucker v. City of Chicago, 907 F.3d 487, 491
(7th Cir. 2018).
2. Bivens, Abbasi, and Egbert
Congress has provided that "district courts shall have original jurisdiction of all civil
actions arising under the Constitution, laws, or treaties of the United States." 28 U.S.C. § 1331.
But jurisdiction does not necessarily create the authority to award damages. Schweiker v. Chilicky,
487 U.S. 412, 414 (1988). Although Congress has authorized district courts to award damages

against state officials who violate the Constitution while acting under color of state law, see
42 U.S.C. § 1983, Congress has not provided an analogous authority to award damages against
federal officials who violate the Constitution while acting under color of federal law. See Ziglar v.
Abbasi, 582 U.S. 120, 130 (2017).
Despite a lack of explicit congressional approval, the Supreme Court held in Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 397 (1971), that district courts
have the implied authority to award damages against federal officials for unreasonable searches
and seizures in violation of the Fourth Amendment. In Davis v. Passman, 442 U.S. 229, 249 (1979),
the Court extended this implied authority to actions alleging gender discrimination in federal
employment in violation of the Fifth Amendment. And in Carlson v. Green, 446 U.S. 14, 24 (1980),
the Court again extended this implied authority to actions alleging deliberate indifference to a
prisoner's serious medical needs in violation of the Eighth Amendment. In that case, the lawsuit
was brought by the estate of an incarcerated individual who died after receiving delayed treatment
for an asthma attack. Id. at 16, n.1.
In Abbasi, the Supreme Court noted that those "three cases—Bivens, Davis, and Carlson—
represent the only instances in which the Court has approved of an implied damages remedy under
the Constitution itself." 582 U.S. at 131. And in the forty years since Carlson, the Court has
declined to create any new contexts for Bivens claims. Id. at 135 (listing cases); see also Hernandez
v. Mesa, 589 U.S. 93 (2020) (no implied damages remedy in action against border patrol agent for
cross-border shooting). In each of these cases, the Court reasoned there were "special factors
counselling hesitation" about creating a new Bivens context in the absence of affirmative action by
Congress. Abbasi, 582 U.S. at 136.

In Abbasi, the Court noted that its method for determining whether a statute creates a
private cause of action has shifted dramatically since the mid-20th century. 582 U.S. at 131-32.
When Bivens was decided, the Court assumed it could create private causes of action to give
meaningful effect to a statute, and the conclusion that constitutional provisions similarly imply
private causes of action seemed inevitable. Id. at 132. Today, the Court takes a more cautious
approach, assuming that the "far better course" is to restrict private causes of action to statutes
where Congress has explicitly conferred such a right. Id. at 132-33. This evolution in judicial
philosophy suggests "that the analysis in the Court's three Bivens cases might have been different
if they were decided today." Id. at 134.
Nevertheless, Abbasi declined to overrule Bivens, reasoning that Bivens' vindication of
constitutional rights in certain contexts, "and the undoubted reliance upon it as a fixed principle in
the law, are powerful reasons to retain it." Id. Instead, the Court limited Bivens to the contexts that
arose in Bivens, Davis, and Carlson—unlawful search and seizure, gender discrimination in
employment, and deliberate indifference to a prisoner's serious medical needs in a BOP facility.
Id. Expanding Bivens to a new context is now a "disfavored judicial activity." Id. at 135.
Trial courts assessing Bivens claims must conduct a two-step inquiry. Egbert v. Boule, 596
U.S. 482, 492 (2022). To determine whether a Bivens remedy is available to Mr. Higgins for his
constitutional claims against Nurse McGuire, the Court first asks whether his claim presents "a
new Bivens context" from previous Bivens cases decided by the Supreme Court. Id.; Abbasi, 582
U.S. at 138, 147. If the case presents a new Bivens context, the Court then inquires whether there
are "special factors counseling hesitation before authorizing a new kind of federal litigation."
Hernandez, 589 U.S. at 102.

3. New Bivens Context Analysis
The Court first must decide whether Mr. Higgins' claims arise in a new Bivens context. "A
claim may arise in a new context even if it is based on the same constitutional provision as a claim
in a case in which a damages remedy was previously recognized." Id. at 103. The question is
whether "the case is different in a meaningful way from previous Bivens cases decided by [the
Supreme Court]." Abbasi, 582 U.S. at 147. As the Supreme Court explained, "[D]ifferences that
are meaningful enough to make a given context a new one" may include, but are not limited to,
the rank of the officers involved; the constitutional right at issue; the generality or
specificity of the official action; the extent of judicial guidance as to how an officer
should respond to the problem or emergency to be confronted; the statutory or other
legal mandate under which the officer was operating; the risk of disruptive intrusion
by the Judiciary into the functioning of other branches; or the presence of potential
special factors that previous Bivens cases did not consider.
Id. at 139-40.
Although Mr. Higgins brings Eighth Amendment claims against Nurse McGuire, like the
plaintiff's estate in Carlson, the context is vastly different. In Carlson, the defendants' gross
negligence created an emergency situation by administering contra-indicated drugs, attempting to
use machinery known to be inoperative, and delaying competent medical attention for eight hours,
ultimately resulting in death. 446 U.S. at 16, n.1. Mr. Higgins' claim against Nurse McGuire alleges
that, after a transportation accident that caused him neck pain, Mr. Higgins informed Nurse
McGuire of what occurred but he failed to report the incident to anyone. Dkt. 1 at 6. The Court
finds that Mr. Higgins' Eighth Amendment claims present a new Bivens context, and therefore
proceeds to the special factor analysis.

4. Special Factor Analysis
The special factor analysis is brief, as it will usually be in light of Egbert. Once the Court
finds any reason to defer to Congress – or any alternative remedy, even if the plaintiff alleges it is
inadequate – the analysis is complete. Here, alternative remedies are not only available to Mr.
Higgins, but he is availing himself of one in this action. The Federal Tort Claims Act, 28 U.S.C. §
1346, allows recovery of damages against the United States under certain circumstances when
federal agents, including prison officials, commit a state-law tort See Abbasi, 582 at 134; see also
Oliveras v. Basile, 440 F. Supp 3d 365, 373 (S.D. N.Y. Feb. 25, 2020) (observing that in light of
Abbasi, courts have questioned whether Carlson's analysis of this issue remains good law); Badley
v. Granger, No. 2:17-CV-00041-JMS-DLP, 2018 WL 3022653, at *3 (S.D. Ind. June 18, 2018)
(declining to find an implied Bivens remedy partly because the inmate could have pursued a FTCA
claim).
Accordingly, Nurse McGuire's motion, dkt. [30], is granted, and Mr. Higgins' Bivens
claim against Nurse McGuire is dismissed.
C. Summary Judgment
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 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 fact-finder. 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) (cleaned up).
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, and potentially in the grant of summary
judgment. Fed. R. Civ. P. 56(e).
1. PT Matchett & Dr. Joseph's Motions
Like his claim against Nurse McGuire, Mr. Higgins is proceeding against both PT Matchett
and Dr. Joseph on Bivens claims related to alleged inadequate medical care. However, unlike Nurse
McGuire, neither PT Matchett nor Dr Joseph are federal employees. Dkt. 35 at 3 ("Plaintiff has
plead that Defendant Matchett provides services at the penitentiary. This is accurate; however, it
is undisputed that Defendant Matchett is not a federal employee."); 41 at 3 ("Plaintiff has plead
that Dr. Joseph provides services at USP. This is accurate; however, it is undisputed that Dr. Joseph
is not a federal employee.").
As explained above, plaintiffs have a high hurdle to prove a Bivens claim. However, even
if Mr. Higgins could prove that his claims either do not arise in a new context or do not have special
factors counseling hesitation, he still could not succeed in his claims against PT Matchett and Dr.

Joseph because Bivens claims have never extended to non-governmental employees. Minneci v.
Pollard, 565 U.S. 118, 126 (2012) (holding that "employment status – makes a critical difference"
and declining to extend Bivens claims against non-governmental prison employees). PT Matchett
and Dr. Joseph both move for summary judgment, and are entitled to it, on the basis that they are
both private healthcare professionals with private practices who contract to provide services to the
prison.
Accordingly, PT Matchett and Dr. Joseph's motions for summary judgment, dkts. [34] and
[40], respectively, are granted.
D. Mr. Higgins' Motion to Stay
Mr. Higgins moves for a stay regarding PT Matchett and Dr. Joseph's summary judgment
motions. Dkt. 50. He argues that the motions are premature because discovery has not begun in
this matter. Id. While Mr. Higgins is correct that generally parties do not move for summary
judgment prior to commencement of discovery, it is not true that every summary judgment motion
filed at such a time is premature. Federal Rule of Civil Procedure 56(c) provides the procedures
required for summary judgment motions. Rule 56(c)(1) dictates that "[a] party asserting that a fact
cannot be…. disputed must support the assertion by: (A) citing to particular parts of materials in
the record, including… affidavits[.]" Both PT Matchett and Dr. Joseph attached affidavits to their
motions swearing that they are not, nor ever have been, federal employees. Dkts. 35-1, 42. Because
this fact is dispositive and Mr. Higgins does not genuinely dispute it, nor does he specifically seek
discovery on this issue, their motions are not premature. Accordingly, the Court declines to stay
its decision and Mr. Higgins' motion, dkt. [50], is denied.

E. Summary
In sum, Nurse McGuire's motion to dismiss, dkt. [30], is granted. PT Matchett and Dr.
Joseph's motions for summary judgment, dkts. [34], [40], are granted. Mr. Higgins' motion for a
stay, dkt. [50], is denied.
The clerk is directed to correct the name of Defendant McGuire to "Nurse Cody McGuire"
on the docket. The clerk is directed to correct the name of Defendant Joseph to "Doctor Lolit
Joseph" on the docket. The clerk is directed to remove Nurse McGuire, PT Matchett, and Dr.
Joseph as defendants on the docket.
This action will proceed on FTCA claims against the United States and Rehabilitative Act
claims against the Warden of USP-Terre Haute. The Court will set scheduling orders for these
claims via separate orders.
IT IS SO ORDERED.

Date: 3/11/2025

Distribution:
DEONDRE CORDELL HIGGINS
21239-045
BUTNER - MEDIUM II FCI
BUTNER MEDIUM II FEDERAL CORRECTIONAL INSTITUTION
Inmate Mail/Parcels
P.O. BOX 1500
BUTNER, NC 27509

Louise K. Conces
Bose McKinney & Evans LLP
[e-mail]
William W. Drummy
WILKINSON GOELLER MODESITT WILKINSON & DRUMMY
[e-mail]
Joi Kamper
DOJ-USAO
[e-mail]
Philip R. Zimmerly
BOSE MCKINNEY & EVANS, LLP (Indianapolis)
[e-mail]