United States District Court, E.D. Wisconsin
RODERICK J. MCGINNIS, Plaintiff,
DR. RICHARD EVANS, Defendant.
Stadtmueller U.S. District Judge.
8, 2016, the defendant, Dr. Richard Evans
(“Evans”), filed a motion for summary judgment,
as well as a brief in support, statement of facts, and an
affidavit from Evans. (Motion, Docket #23; Brief in Support,
Docket #24; Statement of Facts, Docket #25; Affidavit of
Richard Evans, Docket #26). In accordance with Local Rule 56,
the plaintiff, Roderick J. McGinnis (“McGinnis”),
was permitted until July 8, 2016, to submit a response. Civil
L. R. 56(b)(2). It has been more than a month since that
deadline passed and McGinnis has provided neither a response
nor any other communication with the Court, other than a
refusal to magistrate jurisdiction filed on August 18, 2016.
fact, on August 5, 2016, two days after this case was
reassigned to this Court, Evans filed a letter updating the
Court on the status of the case and highlighting the fact
that his summary judgment motion remained unopposed and
outstanding. (Docket #29). McGinnis was copied on the letter
and has still failed to file anything other than the
magistrate consent form since that time. It appears, then,
that McGinnis has chosen not to respond to the motion. The
Court will, therefore, address Evans' motion in its
unopposed form and, for the reasons explained below, the
motion will be granted.
STANDARD OF REVIEW
Rule of Civil Procedure 56 provides the mechanism for seeking
summary judgment. Rule 56 states that the “court shall
grant summary judgment if 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); see Boss v. Castro, 816 F.3d 910, 916 (7th
Cir. 2016). A “genuine” dispute of material fact
is created when “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). The Court construes all facts and reasonable
inferences in a light most favorable to the non-movant.
Bridge v. New Holland Logansport, Inc., 815 F.3d
356, 360 (7th Cir. 2016).
McGinnis failed to respond to Evans' statement of facts,
the Court considers them undisputed. Fed.R.Civ.P. 56(e). They
are as follows. In April 2014, while incarcerated at the
Milwaukee Secure Detention Facility, McGinnis began
experiencing abdominal pain. (Docket #25 at ¶ 2). He was
taken to Aurora Sinai Medical Center (“Aurora”)
where he underwent an appendectomy on April 21, 2014.
Id. at ¶¶ 3-4.
an on-call surgeon at Aurora's emergency department,
responded to a request from a colleague for a surgical
consultation to examine McGinnis after the appendectomy.
Id. at ¶ 5. On April 29, 2014, Evans and
another physician observed that McGinnis' incision site
was infected. Id. at ¶ 6. Evans reopened the
incision site to treat the infection. Id. McGinnis
claims that Evans did so by jamming his fingers into the
wound, causing him great pain. Id. at ¶ 7.
December 9, 2015, McGinnis filed a complaint against Evans
pursuant to 42 U.S.C. § 1983 for constitutional injury.
Id. at ¶ 1. McGinnis was allowed to proceed on
an Eighth Amendment claim against Evans for deliberate
indifference to his serious medical needs. (Docket #13 at 6).
By pursuing this claim, McGinnis impliedly alleged that Evans
was a state actor who would be subject to this type of
liability. (Docket #25 at ¶ 9); see supra Part
4. However, at all times relevant, Evans was not a Wisconsin
state employee or contractor. Id. at ¶ 11.
Instead, the care he provided to McGinnis was as a private
practice physician and done pursuant to a contract with
Aurora. Id. at ¶ 12.
state a claim for a violation of constitutional rights
pursuant to 42 U.S.C. § 1983, a plaintiff must prove
that: 1) he was deprived of a right secured by the
Constitution or laws of the United States; and 2) the
deprivation was visited upon him by a person or persons
acting under color of state law. Buchanan-Moore v. County
of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing
Kramer v. Village of North Fond du Lac, 384 F.3d
856, 861 (7th Cir. 2004)); see also Gomez v. Toledo,
446 U.S. 635, 640 (1980). Evans argues that he was not a
state actor at the time he allegedly injured McGinnis, and
thus that McGinnis cannot maintain a Section 1983 claim
against him. (Docket #24).
To be a
state actor, the Court must find “such a ‘close
nexus between the State and the challenged action' that
the challenged action ‘may be fairly treated as that of
the State itself.'” Rodriguez v. Plymouth
Ambulance Service, 577 F.3d 816, 823 (7th Cir. 2009)
(quoting Jackson v. Metro. Edison Co., 419 U.S. 345,
351 (1974)). For medical providers like Evans, it is a
“functional inquiry, focusing on the relationship
between the state, the medical provider, and the
prisoner.” Shields v. Illinois Dept. of
Corrections, 746 F.3d 782, 797 (7th Cir. 2014) (citing
Rodriguez, 577 F.3d at 826). Shields
[A private medical company] that contracts to provide medical
care to prisoners undertakes “freely, and for
consideration, responsibility for a specific portion of the
state's overall [constitutional] obligation to provide
medical care for incarcerated persons, ”
[Rodriguez, 577 F.3d] at 827, and thus acts under
color of state law for purposes of § 1983. On the other
hand, we have held that medical providers who have
“only an ...