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Phillips v. Umass Correctional Health

United States District Court, M.D. North Carolina

January 10, 2020

ROBIN DENISE PHILLIPS, as Administratrix of the ESTATE OF TAMARQUIS ASHANTI PHILLIPS, Plaintiff,
v.
UMASS CORRECTIONAL HEALTH, UNIVERSITY OF MASSACHUSETTS MEDICAL SCHOOL, JAMES C. HOLLAND, Complex Warden, FCC Butner, in his individual capacity, SARA M. REVELL, Warden, FCC Butner, in her individual capacity, JUSTIN F. ANDREWS, Warden, FCC Butner, in his individual capacity, STEPHANIE L. HOLLEMBAEK, Warden, FCC Butner, in her individual capacity, THOMAS B. SMITH, Warden, FCC Butner, in his individual capacity, DONNA M. SMITH, Warden, LSCI Butner, in her individual capacity, CYNTHIA SWAIN, Associate Warden, LSCI Butner, in her individual capacity, HENRY MCMILLAN, FCC Butner Health Services Administrator, in his individual capacity, SARA BEYER, Clinical Director of FCC Butner, in her individual capacity, IVY MANNING, Director of Nursing at FCC Butner, in her individual capacity, KELLIE HARDEN, Quality Manager at FCC Butner, in her individual capacity, GURINDER SANDHU, in his individual capacity, VANCEBORO INTERNAL MEDICINE, P.A., MICHAEL VAN SICKLE, in his individual capacity, TERI PERKINSON, in her individual capacity, AMY JO ROSENTHAL, in her individual capacity, ANDREW E. STOCK, in his individual capacity, MARY J. DENUZZIA, in her individual capacity, YVONNE LANE, in her individual capacity, CHRISTY BUNN, in her individual capacity, JOSEPH LEE HACKETT, in his individual capacity, ALNISSA SHAW, in her individual capacity, Defendants.

          MEMORANDUM OPINION AND ORDER

          N. CARLTON TILLEY, JR. SENIOR UNITED STATES DISTRICT JUDGE.

         This matter is before the Court on various motions. Defendants Michael Van Sickle [Doc. #24] and Henry McMillan, Ivy Manning, Kellie Harden, Christy Bunn, and Alnissa Shaw [Doc. #64] move to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction and/or Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Defendants James C. Holland, Sara M. Revell, Justin F. Andrews, Stephanie L. Hollembaek, Thomas B. Smith, Donna M. Smith, Cynthia Swain, Sara Beyer, Amy Jo Rosenthal, Andrew E. Stock, Mary J. DeNuzzia, Yvonne Lane, and Joseph Lee Hackett [Doc. #66] and Terri Perkinson [Doc. #70] move to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Although not initially a party, the United States of America moves to substitute [Doc. #29] and to dismiss for lack of subject matter jurisdiction [Doc. #30]. Plaintiff Robin Denise Phillips moves to strike Defendants Gurinder Sandhu's and Vanceboro Internal Medicine, P.A.'s motion to dismiss included as part of their Answer. [Doc. #61.] For the reasons that follow, Defendant Michael Van Sickle's Motion to Dismiss [Doc. #24] as converted to a motion for summary judgment is GRANTED; Defendants Henry McMillan's, Ivy Manning's, Kellie Harden's, Christy Bunn's, and Alnissa Shaw's Motion to Dismiss [Doc. #64] as converted to a motion for summary judgment is GRANTED; Defendants James C. Holland's, Sara M. Revell's, Justin F. Andrews', Stephanie L. Hollembaek's, Thomas B. Smith's, Donna M. Smith's, Cynthia Swain's, Sara Beyer's, Amy Jo Rosenthal's, Andrew E. Stock's, Mary J. DeNuzzia's, Yvonne Lane's, and Joseph Lee Hackett's Motion to Dismiss [Doc. #66] is GRANTED IN PART WITHOUT PREJUDICE as to Holland, Revell, Andrews, Hollembaek, Thomas Smith, Donna Smith, Swain, Beyer, Rosenthal, Stock, DeNuzzia, and Hackett and is DENIED IN PART as to Lane; Defendant Terri Perkinson's Motion to Dismiss [Doc. #70] is GRANTED WITHOUT PREJUDICE; The United States of America's Motion to Substitute [Doc. #29] and Motion to Dismiss [Doc. #30] are DENIED AS MOOT; and Plaintiff Robin Denise Phillips's Motion to Strike Portions of Defendants Sandhu and Vanceboro's Answer [Doc. #61] is DENIED AS MOOT.

         I.

         Except as noted in § II.A., the following factual allegations in the Amended Complaint are accepted as true for purposes of the pending motions to dismiss. On May 20, 2017, thirty-eight-year-old Tamarquis Ashanti Phillips died while in the custody of the Bureau of Prisons. (E.g., Am. Compl. ¶ 1 [Doc. #9].) Years earlier, after a car accident in September 2012, he began suffering from a severe seizure disorder for which he regularly saw a neurologist. (Id. ¶¶ 40, 43.) As of October 2016, he was prescribed three Anti-Epileptic Drugs that he took properly and regularly - (1) Depakote, 500mg, delayed release, two tablets twice a day, (2) Keppra, 500mg, one tablet twice a day, and (3) Vimpat, 150mg, two tablets twice a day. (Id. ¶¶ 43, 44.) Without these medications, Phillips was at a very high risk for seizures and death. (Id. ¶ 45.) Even abruptly stopping any one of these medications posed a danger. (Id.) Depakote's label warned: “Do not stop taking Depakote without first talking to your healthcare provider. Stopping Depakote suddenly can cause serious problems.” (Id.) Vimpat's warning label states the same and further explains, “Stopping seizure medicine suddenly in a patient who has epilepsy can cause seizures that will not stop (status epilepticus).” (Id.) Keppra's label instructs, “Antiepileptic drugs, including KEPPRA, should be withdrawn gradually to minimize the potential of increased seizure frequently.” (Id.)

         After pleading guilty in April 2017 in the Western District of North Carolina to a drug offense, Phillips was sentenced to a term of imprisonment of 144 months in the Bureau of Prisons (“BOP”). (Id. ¶ 46.) Among the sentencing judge's recommendations to the BOP was the recommendation that Phillips be “'placed in a facility as close to Charlotte, NC, as possible, capable of providing him necessary medical treatment required by his medical condition and indicated seizure issues, consistent with the needs of the BOP.'” (Id. ¶ 48.) As of the time of his incarceration, because of his proper and regular use of Depakote, Keppra, and Vimpat, Phillips had not suffered a seizure in over a year. (Id. ¶ 43.)

         After his sentencing, Phillips was temporarily incarcerated at the Mecklenburg County Jail until he was transferred to the Low Security Correctional Institute (“LSCI Butner”) at the Federal Correctional Complex in Butner, North Carolina (“FCC Butner”). (Id. ¶¶ 49, 52, 53.) During his incarceration at the Mecklenburg County Jail, Phillips was administered all three of his medications regularly, and the medication orders record was provided to FCC Butner. (Id. ¶ 52.)

         “FCC Butner provides in-house, on-site medical coverage and nurse staffing twenty-four hours [a] day, seven days a week.” (Id. ¶ 49.) Phillips entered LSCI Butner at 3:41 p.m. on May 16, 2017 at which time Perkinson, an Emergency Medical Technician and Paramedic, performed a health screen. (Id. ¶¶ 53, 54.) She “noted a history of generalized absence seizures, greater than one per year, with adult onset”, “his last seizure had been seven to twelve months before”, and his “seizures had begun seven months after a car accident”, but she did not note that Phillips was taking medications for those seizures. (Id. ¶¶ 53, 54.) He was given a PPD test to screen for tuberculosis and was issued his eyeglasses later that afternoon. (Id. ¶ 55.) The “screening tool indicated, ‘Instructed inmate how to obtain medical, dental and mental health care.'” (Id.) Phillips was scheduled to have a medication reconciliation at 3:50 p.m. by a physician, “presumably” Sandhu or Rosenthal”, but that never occurred. (Id. ¶ 56.)

         At 3:25 p.m. the following day, May 17, Van Sickle, a Board Certified Adult Nurse Practitioner, met with Phillips and filled out a Health Problems form “indicating an ICD-10 code of ‘G40909 - Epilepsy Seizure Disorder,' a diagnosis that was current.” (Id. ¶ 58.) Van Sickle wrote a new prescription for generic Depakote, Divalproex ER, “24-hour tab 500mg, take two tablets, 1000mg by mouth twice daily for seizures to start that day.” (Id. ¶ 59.) However, Van Sickle never added the prescription to Phillips's Medication Administration Record (“MAR”), the prescription was never filled or dispensed, and Van Sickle neither prescribed Keppra nor Vimpat nor documented any basis for this decision. (Id. ¶¶ 59, 60, 61.)

         At 6:46 a.m. on May 18, DeNuzzia, a Registered Nurse, read Phillips's PPD test, at which time, upon Plaintiff's information and belief, Phillips requested his medication but did not receive it. (Id. ¶ 62.) Although there is a notation on May 18 that Phillips was to receive Divalproex ER 24-hour Tab 500 mg, Lane, a Registered Nurse and the pharmacy provider, did not issue the medication to Phillips and there is no record why the prescribed medication was not dispensed. (Id. ¶ 63.) Yet, “the national formulary for the [BOP] provides the following notation for Divalproex: ‘Warning, designated high risk Medication! Ensure appropriate medication, frequency, indication and monitoring.'” (Id.)

         On May 19, a friend and fellow inmate of Phillips told Phillips's fiancée that the two of them had gone to medical staff to request Phillips's medications. (Id. ¶ 65.) Another inmate stated that Phillips was visibly and severely shaking and informed the staff at LSCI Butner that he was not feeling well.[1] (Id. ¶ 66.) Just before 11:00 p.m., Phillips told his fiancée that he was very concerned about his health because the medical staff would not give him his medications despite his repeated requests. (Id. ¶ 68.)

         Around 1:00 a.m. on May 20, Phillips was seen going to the bathroom. (Id. ¶ 69.) He was not seen alive again. (Id.) At 9:58 a.m., he was discovered face down, unresponsive, pulseless, and cold, with locked muscles and blood on his pillow. (Id. ¶ 70.) Perkinson, Bunn, and Hackett initiated CPR, but were unsuccessful at resuscitating Phillips. (Id.) Within thirty minutes, Phillips was declared dead by Sandhu, the responding hospitalist. (Id. ¶ 72.) An autopsy concluded his cause of death was a seizure disorder. (Id. ¶ 74.)

         At no time during his incarceration at LCSI Butner did Phillips see a physician, including his assigned hospitalist Sandhu or his attending doctor Rosenthal, who indicated on the Multi-Level Mortality Review (“MLMR”) that she had never seen Phillips and was not notified of his presence at the facility. (Id. ¶ 71.) Furthermore, although Phillips's MAR began on May 16, it is completely blank and contains no indication that Phillips was ever given any medication while at LSCI Butner. (Id. ¶ 56.)

         The Medical Examiner was “apparently told” that Phillips “'was prescribed Depakote, Vimpat, and Keppra while in prison for his seizure disorder'” and that he “'reportedly missed all three medications on 5/19/17.'” (Id. ¶ 75.) Yet, the “MAR contains no indication that Mr. Phillips was offered these medications and either failed to appear to receive them or refused them” and “any such refusal . . . should have been documented in his medical records, as required by the standard of care and FCC Butner's own policies.” (Id. ¶ 76.) Postmortem toxicological analysis detected a subtherapeutic level of Lacosamide (Vimpat) and no Divalproex (Depakote) or Levetiracetam (Keppra) on acidic, neutral, and basis screens. (Id. ¶ 77.)

         Nearly a month after Phillips died, Perkinson wrote a memorandum dated June 17 in which she stated that she performed Phillips's intake screen on May 16 and that he brought his medication with him, but she could not give him the medications “for self carry”. (Id. ¶ 79.) Because it was after 4:00 p.m. and staff had left for the day, she placed the medication and paperwork in the medication distribution room so he “'could receive his evening and morning dosage until his provider was available to complete his medication reconciliation the next morning'”. (Id.) Although she stated that she noted this in the 24-hour report and sent the intake to the provider for signature, the note is nowhere in the records. (Id.) She also wrote that Phillips came to the pill line that night and she administered his evening dosages, but there is no record in any contemporaneous document that he received his medication. (Id. ¶ 80.) Such a record is required for a Schedule V controlled substance like Vimpat because it requires an accounting of distribution. (Id.)

         On June 28, Donna Smith, warden of LSCI Butner, submitted a Multi-Level Mortality Review (“MLMR”) to the Office of Quality Management that reflected Phillips's admitting diagnosis of Epilepsy/Seizure Disorder, described his death as natural, and indicated that he underwent medication reconciliation with Divalproex 500mg having been prescribed twice a day for his seizure disorder. (Id. ¶¶ 18, 81, 82.) The MLMR does not state that Phillips was actually given his medication while at LSCI Butner nor does it explain why his other two medications were discontinued. (Id. ¶ 82.) In addition, the MLMR notes that Phillips was scheduled for a history and physical for May 24, eight days after his arrival. (Id. ¶ 85.) Swain (Associate Warden of FCC Butner), Beyer (Medical Doctor and Clinical Director of LSCI Butner), McMillan (Health Services Administrator at FCC Butner), Harden (Registered Nurse and Quality Manager at FCC Butner), Manning (Registered Nurse and Director of Nursing at FCC Butner), Shaw (Certified Physician's Assistant and Reviewing Clinician), and Rosenthal, signed the MLMR. (Id. ¶¶ 19, 21-24, 36, 83.)

         Plaintiff filed the instant action alleging negligence (Count I), wrongful death (Count II), corporate negligence (Count III), deliberate indifference to serious medical needs in violation of 42 U.S.C. § 1983[2] (Count IV), and gross negligence (Count V). (See generally Am. Compl.) After the United States of America submitted the Certification of the United States Attorney for the Middle District of North Carolina in which he attested that all of the individual defendants (except Sandhu) (the “Federal Defendants”) “were acting in their official capacity within the scope of their employment as employees of the United States at the time of the conduct alleged in the Complaint”, Plaintiff voluntarily dismissed Counts I, II, and V of her Amended Complaint against the Federal Defendants. (Certification of Matthew G.T. Martin (Apr. 10, 2019) [Doc. #29-1]); Pl.'s Notice of Voluntary Dismissal of Counts I, II, and V at 1-2 [Doc. #58].) Accordingly, the United States of America's Motion to Substitute and Motion to Dismiss for Lack of Submit Matter Jurisdiction are denied as moot.

         II.

         The Federal Defendants challenge the sole claim remaining against them - a Bivens action alleging deliberate indifference to Phillips's serious medical needs in violation of the Eighth Amendment.

         A.

         Van Sickle, McMillan, Manning, Harden, Bunn, and Shaw (“PHS Defendants” or “Defendants” for purposes of this section) move to dismiss Plaintiff's deliberate indifference claim pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. They have attached their declarations in which each avers to have been a United States Public Health Service (“PHS”) officer during Phillips's incarceration at LSCI Butner. [Docs. #24-1, 64-1, 64-2, 64-3, 64-4, 64-5.] Relying on this fact and others, they argue they are immune under 42 U.S.C. § 233(a) from Plaintiff's deliberate indifference claim. (E.g., Am. Mem. in Supp. of Mot. to Dismiss [Doc. #32], Public Health Serv. Defs. McMillan, Manning, Harden, Bunn and Shaw's Mem. in Supp. of Mot. to Dismiss [Doc. #65].)

         While these PHS Defendants have moved to dismiss, on the one hand, pursuant to Rule 12(b)(1), they cite no law in support of analyzing their motions as challenges to this Court's subject matter jurisdiction over Plaintiff's Bivens action against them. Plaintiff appears to assume a subject matter jurisdiction challenge is appropriate because she addresses which party bears the burden on such a motion.[3] (Pl.'s Opp'n to Def. Michael Van Sickle's Mot. to Dismiss (“Pl.'s Opp'n to Van Sickle”) at 4-5 [Doc. #59], Pl.'s Opp'n to Mot. to Dismiss of Defs. McMillan, Manning, Harden, Bunn and Shaw (“Pl.'s Opp'n to Defs.”) at 4-5 [Doc. #74].) Accordingly, neither the PHS Defendants nor Plaintiff addresses the consequence of the Court's consideration of Defendants' declarations if their motions are analyzed pursuant to Rule 12(b)(6), on the other hand.

         It is determined that Defendants' claims of immunity as PHS officers are not subject matter jurisdiction challenges. Instead, their argument is understood to be that because they are immune, Plaintiff has failed to state a claim against them for which relief can be granted. However, to support this argument, Defendants must rely on information in their declarations. When “matters outside the pleadings are presented to and not excluded by the court [on a motion under Rule 12(b)(6)], the motion must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “As a general rule, when one party files a motion for summary judgment, the non-movant cannot merely rely on matters pleaded in the complaint, but must, by factual affidavit or the like, respond to the motion.” Carter v. Lassiter, No. 1:18-CV-275-FDW, 2019 WL 6048043, at *4 (W.D. N.C. Nov. 14, 2019). The court views the evidence and inferences in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). The “mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Id. at 247-48. A dispute is genuine if a reasonable jury, based on the evidence, could find in favor of the non-moving party. Id. at 248. The materiality of a fact depends on whether the existence of the fact could cause a jury to reach different outcomes. Id. The court cannot weigh the evidence, by failing to credit contradictory evidence, or make credibility determinations. Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651 (4th Cir. 2018).

         When a motion filed under Rule 12(b)(6) is converted to one for summary judgment, “[a]ll parties must be given a reasonable opportunity to present all the materials that is pertinent to the motion.” Fed.R.Civ.P. 12(d). Although Plaintiff did not contest the fact as stated in Defendants' declarations that they were PHS officers at the times relevant to the Amended Complaint, she was afforded an opportunity to provide or point out facts that create material disputes from sources that may be considered in determining a motion for summary judgment. (Order [Doc. #82].) Plaintiff responded in agreement that Defendants' submission of their declarations converted their motions to summary judgment. (Pl.'s Notice at 1 [Doc. #83].) However, “she does not currently have information that creates any material factual dispute”. (Id.) She requests that Defendants' motions be denied “as premature, and without prejudice to reallege the arguments after discovery has been conducted in this matter.” (Id. at 2.)

         When “a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) defer considering the motion or deny it; (2) allow time to obtain affidavits or declarations or to take discovery; or (3) issue any other appropriate order.” Fed. R. 56(d) Civ. P. Here, Plaintiff admits that she has no facts to create a genuine dispute of material fact as to the PHS Defendants' immunity. Although she requests that their motions be denied until discovery has been conducted, she does not request immediate discovery on this discrete issue, nor is it apparent what facts she could present that would create a genuine dispute of material fact on this narrow issue. Defendants have proffered declarations under penalty of perjury attesting that they were PHS officers at the time of Phillips's incarceration and their actions with respect to Phillips were taken within the scope of their duties as PHS officers. Furthermore, as explained below, all of their alleged conduct with respect to Phillips was medically related. Accordingly, under these circumstances, it is appropriate to address Defendants' motions and grant them immunity.

         Title 42 U.S.C. § 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 claims against them for such conduct.” Hui v. Castaneda, 559 U.S. 799, 806 (2010) (barring Bivens action against PHS officers and employees).

The remedy against the United States provided by sections 1346(b) and 2672 of Title 28, or by alternative benefits provided by the United States where the availability of such benefits precludes a remedy under section 1346(b) of Title 28, for damage for personal injury, including death, resulting from the performance of medical, surgical, dental, or related functions, including the conduct of clinical studies or investigation, by any commissioned officer or employee of the Public Health Service while acting within the scope of his office or employment, shall be exclusive of any other civil action or proceeding by reason of the same subject-matter against the officer or employee (or his estate) whose act or omission gave rise to the claim.

42 U.S.C. § 233(a). “By its terms, § 233(a) limits recovery for such conduct to suits against the United States.” Hui, 559 U.S. at 806.

         Here, there is no dispute that the PHS Defendants were, at all times relevant to the Amended Complaint, officers of the Public Health Service acting within the scope of their offices or employment. Plaintiff instead (1) challenges the constitutionality of § 233(a) and (2) argues that the PHS Defendants' conduct falls outside of that protected by the statute. First, Plaintiff argues that § 233(a) unconstitutionally denies her due process and equal protection, the right to open courts, and the right to a jury trial because its “practical impact” is to leave her without a remedy. (E.g., Pl.'s Opp'n to Van Sickle at 6-9.) This is purportedly so because “the United States commonly asserts that it is entitled to the ‘discretionary function' exclusion for conduct of a medical professional in the administration of medical care.” (Id. at 6-7.) As the Supreme Court stated in Hui, the remedy for medically related tortious conduct by PHS officers is suit against the United States. Furthermore, she cites no case law to support her position that § 233(a) unconstitutionally leaves her without a remedy. Respondents' amici in Hui “caution[ed] that providing special immunity for PHS personnel [was] contrary to the public interest”, but the Court steadfastly interpreted the statute according to its text to find that it “plainly precludes Bivens actions”. 559 U.S. at 812-13. Furthermore, the Second Circuit Court of Appeals explained that § 233(a) does not “deprive [a plaintiff] of her constitutional due-process rights.” Cuoco v. Moritsugu, 222 F.3d 99, 108 (2000). Instead, § 233(a) reflects that “[t]he United States . . . in effect insures designated public health officials by standing in their place financially when they are sued for the performance of their medical duties.” Id.

         The Hui Court has also disposed of Plaintiff's other bases for her contention that she will be left with no remedy. See Hui, 559 U.S. at 806-07 (explaining that its “reading of § 233(a)'s text is not undermined by the fact that the provision preceded” Bivens), 807-08 (noting that the Carlson Court did not address the question of official immunity).

         Plaintiff also argues that § 233(a) is unconstitutional because the U.S. District Court for the Northern District of Texas declared the Affordable Care Act (“ACA”) unconstitutional, which necessarily included § 233(a). (E.g., Pl.'s Opp'n to Van Sickle at 9-10.) The Fifth Circuit Court of Appeals recently affirmed in part and vacated in part the district court's opinion, remanding

to explain with more precision what provisions of the post-2017 ACA are indeed severable from the individual mandate, and to consider the federal defendants' newly-suggested relief of enjoining the enforcement only of those provisions that injure the plaintiffs or declaring the Act unconstitutional only as to the plaintiff states and the two individual plaintiffs.

Texas v. United States, ___F.3d ___, 2019 WL 6888446, at *21 (Dec. 18, 2019). However, neither court's decision is of precedential value to this court, and as the PHS Defendants note, “[w]hen Congress enacted the Affordable Care Act in 2010, no amendments or additions were made to § 233(a)” while the “only change to 42 U.S.C. § 233 by the Affordable Care Act was to amend § 233(o)(1), which is not germane to this case”. (E.g., Reply to Pl.'s Opp'n to Mot. to Dismiss at 4 [Doc. #60].) There is no basis on which to find § 233(a) unconstitutional.

         Plaintiff next contends that the PHS Defendants' conduct is not the conduct that § 233(a) protects - “the performance of medical, surgical, dental, or related functions”. She argues that each of the PHS Defendants' “role[s]” “was purely administrative and ministerial” and, as such, “do[es] not constitute ‘medical care' and, therefore, fall[s] outside the scope of immunity afforded by § 233(a).” (Pl.'s Opp'n to Van Sickle at 11-12; Pl.'s Opp'n to Defs. at 11.) She contends that Van Sickle's role was ministerial because, according to his Declaration, he did not personally meet Phillips or have any interaction with him and stated he acted according to protocol. (Pl.'s Opp'n to Van Sickle at 11.) Similarly, Plaintiff argues that because Harden, McMillan, Manning, and Shaw provided no medical care to Phillips and Bunn only did so after Phillips coded, their actions were ministerial. (Pl.'s Opp'n to Defs. at 11.) She contends their “intentionally ignoring Mr. Phillips's condition and failing to administer medication [] do not constitute ‘medical care' and, therefore, fall outside the scope of immunity afforded by § 233(a).” (Id.)

         Although courts do recognize a difference between discretionary and non-discretionary acts in other contexts, none of the cases Plaintiff cites in support of her argument concerned PHS officers or employees or 42 U.S.C. § 233(a). Instead, the cases applying § 233(a) to the actions of PHS officers and employees look strictly at whether the conduct involved “the performance of medical, surgical, dental, or related functions.” See, e.g., Cuoco, 222 F.3d at 108-09 (contrasting “an allegation of intentional discrimination on the basis of race and sex by a supervisor against an employee during a professional peer review process” that has “nothing to do with the ‘performance of medical . . . or related functions” with actions of immune PHS officials whose challenged medically-related conduct either took place in the course of rendering medical treatment to Cuoco or “related only to [the] decision[] [by] the principal medical official for the Bureau of Prisons[] not to authorize a particular medical treatment for Cuoco”); Moses v. Stewart, No. TDC-15-3875, 2017 WL 4326008, at *2, *4 (D. Md. Sept. 26, 2017) (finding a PHS employee immune who served as the Health Services Administrator and was alleged to have told Moses that a request for surgical consultation was pending before the prison Utilization Review Committee); Marshall v. Stewart, No. TDC-16-1645, 2017 WL 3671160, at *3, *4 (D. Md. Aug. 23, 2017) (finding a PHS employee immune who served as the Health Services Administrator and was alleged to have denied Marshall's request for a ...


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