Lacey v. Ives

Filing 30

ORDER: Defendants' Motion to Dismiss 25 is GRANTED, and plaintiff's claims against Nurse Cloos are DISMISSED. Plaintiff's Motion for Current Docket 23 is GRANTED. The Clerk's Office is directed to provide plaintiff with a copy of the current docket sheet. Plaintiff's Motion for Appointment of Counsel 24 is DENIED. Signed on 11/21/2018 by Judge Michael J. McShane. (jw) (copy of order and docket sheet mailed to plaintiff)

UNITED STATES DISTRICT COURT
DISTRICT OF OREGON

ROBERT DEWAYNE LACEY,

Case No. 3:17-cv-01579-MC

Plaintiff,

ORDER

v.
RICHARD IVES, et al.,
Defendants.
_____________________________
MCSHANE, District Judge:
Plaintiff, a federal inmate at the Federal Correctional Institution in Sheridan, Oregon (CFI
Sheridan), filed this civil rights action and alleged that defendants exhibited deliberate
indifference toward his serious medical needs. Defendants now move for dismissal of the claim
against defendant Beth Cloos for lack of jurisdiction. The motion is granted.
Plaintiff brought a Bivens claim against Cloos and other defendants arising from medical
care plaintiff received while at FCI Sheridan during 2016 and 2017. Defendants maintain that
Cloos is entitled to absolute immunity from Bivens liability as an employee of the Public Health
1

- ORDER

Service (PHS). See 42 U.S.C. § 233(a). Defendants present evidence that Cloos began working
at FCI Sheridan in November 2012 as a PHS employee and remains so to the present time.
Powley Decl. ⁋ 4. As defendants correctly note, the Supreme Court has held that PHS employees
are exempt from Bivens liability for actions arising from the performance of medical functions
within the scope of their employment. See Hui v. Castaneda, 559 U.S. 799, 806 (2010) (holding
that § 233(a) “grants absolute immunity to PHS officers and employees for actions arising out of
the performance of medical or related functions within the scope of their employment by barring
all actions against them for such conduct”).
Here, Cloos was a PHS employee at all relevant times alleged in the complaint. Further,
plaintiff necessarily alleges that Cloos was acting within the scope of her employment when she
denied plaintiff pain medication. Accordingly, Cloos was a PHS employee who was acting
within the scope of her employment, and she is immune from liability under Bivens.1
Plaintiff also moves for the appointment of counsel and a copy of the docket sheet. The
court does not find that this is an exceptional case warranting the efforts to obtain volunteer
counsel. The court will provide a copy of the docket sheet.
CONCLUSION
Defendants’ Motion to Dismiss (ECF No. 25) is GRANTED, and plaintiff’s claims
against Nurse Cloos are DISMISSED. Plaintiff’s Motion for Current Docket (ECF No. 23) is

1

It is the court’s understanding that only Cloos and defendant Grassley have been served
with the Complaint.
Returns of Service were unexecuted for Drs. Van Patton and Giron, Nurses or Nurse
Practitioners Kingsley-Smith and Begenski, and pharmacist Jim Manning, as they are no longer
employed at FCI Sheridan. Regardless, plaintiff cannot pursue actions against Kingsley-Smith,
Begenski, or Manning, because they, too, were PHS employees during the events in question.
Powley ⁋⁋ 5-7.
2
- ORDER

GRANTED. The Clerk’s Office is directed to provide plaintiff with a copy of the current docket
sheet. Plaintiff’s Motion for Appointment of Counsel (ECF No. 24) is DENIED.
IT IS SO ORDERED.
DATED this

21st day of November, 2018.

s/ Michael J. McShane
Michael J. McShane
United States District Judge

3

- ORDER