The opinion of the court was delivered by: James F. Holderman, District Judge
MEMORANDUM OPINION AND ORDER
Pro se Plaintiff Elizabeth Hall-Moten ("Hall-Moten"), filed an complaint on September 23, 2005 on behalf of herself, and her deceased son Joseph Hall, ("Hall"), against defendants State of Illinois Department of Corrections ("Department of Corrections"), Dr. Kevin Smith, M.D. ("Dr. Smith"), and Dr. Arthur D. Funk. M.D. ("Dr. Funk"), alleging federal civil rights violations resulting from the wrongful death of Joseph Hall. (Dkt. No. 1). On October 7, 2005, the Department of Corrections filed a pending motion to dismiss the complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, ("Rules"). (Dkt. No. 9). Drs. Funk and Smith filed pending motions to dismiss on October 14, 2005 pursuant to Rule 12(b)(5). (Dkt. Nos. 12, 13). For the reasons set forth below, the Illinois Department of Corrections' motion is granted and the Department of Corrections is dismissed as a defendant in this case. Dr. Smith's and Dr. Funk's motions are denied. The documents purporting to be return of service filed on September 26, 2005 reflect ineffective attempts at service of process as to Drs. Smith and Funk. Plaintiff Hall-Moten must properly effectuate service of process under Rule 4 on Drs. Smith and Funk and file the return of service within 7 days thereof.
A. The Parties Cross Motions to Dismiss
Before addressing the substance of the defendants' motions, this court must briefly review the parties' briefing on these motions in order to correct a clerical issue. Hall-Moten filed her responses to the defendants' respective motions on October 18, 2005 and October 20, 2005. (Dkt. Nos. 15, 17, 18). Although these filings were Hall-Moten's responses to the defendants' prior motions to dismiss, she captioned her responses as motions, and properly noticed her motions for presentment at this court's October 27, 2005 motions call. Since these "motions" are actually responses to the defendants' prior motions to dismiss, this court need not rule on Hall-Moten's October 18th and 20th motions independently.*fn1 Instead, the court will consider these documents as Hall-Moten's responses. Therefore, Hall-Moten's "motions" of October 18 and October 20, 2005 are moot. (Dkt. Nos. 15, 17, 18).
Hall-Moten's complaint alleges that she is the mother of the decedent, Joseph Hall. (Dkt. No. 1 at ¶ 4). Joseph Hall, age 23, died on April 9, 2005. (Id. at ¶ 4). From October 1999 until his death, Hall was incarcerated by the Department of Corrections. (Id. at ¶ 12). In 2001, while incarcerated at Logan Correctional Facility, Hall started experiencing back pains and a small bump on his back. (Id. at ¶ 14). Hall sought medical treatment for his ailment from prison officials and received, in response, a muscle rub cream and ibuprofen. (Id.) Hall continued to have back pain through 2001 and 2002 as the lump in his back gradually increased in size. (Id. at ¶¶ 14-15). In addition to Hall's request for medical attention, another inmate, James Smith, also sought medical attention for Hall in February 2002. (Id. at 16). During the period between 2001 and August 2002, Hall never received medical treatment, beyond the ibuprofen and muscle rub, from prison officials. (Id. at ¶ 17). Hall was imprisoned at the Logan Correctional Facility, the Pontiac Correctional Facility and Statesville Correctional Facility at various times during this period. (Id. at ¶ 14, 15, 18). The individual doctor defendants were medical officials at these correctional facilities.
On September 11, 2002, Hall was admitted to the University of Illinois at Chicago Medical Center ("University of Illinois"), after he experienced seizures and paralysis. (Id. at ¶ 23). On October 18, 2002, the doctors at the University of Illinois diagnosed Hall with having a cancerous tumor. (Id. at ¶ 23). Hall ultimately died from this cancer.*fn2
Hall-Moten's complaint invokes this court's jurisdiction pursuant to the Eighth Amendment, 42 U.S.C. § 1983 and 42 U.S.C. § 1997. (Id. at 1). She alleges that defendants inflicted cruel and unusual punishment on Hall and acted with deliberate indifference to his medical condition by denying him adequate medical care over the 18 month period between 2001 and August of 2002 before Hall's cancer was discovered. (Id. at 8). In particular, Hall-Moten alleges that the defendants were negligent and "guilty of medical malpractice" for failing to perform x-ray or use additional diagnostic techniques when Hall continued to complain of his back ailment over the 18 month period. (Id. at 11). Hall-Moten's complaint seeks both injunctive and monetary relief.
A. The Department of Corrections' Motion to Dismiss
The Department of Corrections' October 13, 2005 motion seeks dismissal of the complaint under the Eleventh Amendment. Rule 12(b)(1) "provides a defendant a procedural vehicle by which the defendant may move a federal court to dismiss a claim or suit on the ground that the court lacks subject-matter jurisdiction." Davit v. Davit, 366 F. Supp. 2d 641, 648-49 (N.D. Ill. 2004). "The standard of review for a 12(b)(1) motion to dismiss depends on how [the] defendant frames the motion. If the motion contends that the allegations of jurisdiction are facially insufficient to show jurisdiction, then the 12(b)(1) standard of review mirrors the standard applied for 12(b)(6) motions. But if the motion challenges the truth of the facts alleged, then the court may look beyond the face of the plaintiff's complaint to resolve the factual disputes." Royal Towing, Inc. v. City of Harvey, 350 F. Supp. 2d 750, 752 (N.D. Ill. 2004) (internal citations omitted). The Department of Corrections contends that the jurisdictional allegations in the complaint are facially insufficient.
"The Eleventh Amendment prohibits courts from deciding suits brought by private litigants against states or their agencies." Hernandez v. Joliet Police Dep't, 197 F.3d 256, 265 (7th Cir. 1999) (citing Garcia v. City of Chicago, 24 F.3d 966, 969 (7th Cir. 1994)). "The [Eleventh] Amendment is rooted in a recognition that the States, although a union, maintain certain attributes of sovereignty, including sovereign immunity." Puerto Rico Aqueduct and Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993) (citing Hans v. Louisiana, 134 U.S. 1, 13 (1890)). The Illinois Department of Corrections, as an agency of the State of Illinois, is covered by the Eleventh Amendment. Kroll v. Bd. of Tr. of Univ. of Illinois, 934 F.2d 904, 907 (7th Cir. 1991); Sharp v. Illinois Dep't of Corrections, No 01 C 50295, 2002 WL 441320, at *1 (N.D. Ill. Mar. 20, 2002). The Eleventh Amendment does not, however, bar suits against state officials in their individual capacity. Hafer v. Melo, 502 U.S. 21, 30-31 (1992).
"There are two well-established exceptions to the rule of state sovereign immunity: (1) a state may waive the protections of the Eleventh Amendment and thereby consent to suit in federal court, or (2) Congress may use its enforcement powers under the Fourteenth Amendment to abrogate the states' Eleventh Amendment immunity." Miraki v. Chicago State Univ., 259 F. Supp. 2d 727, 730 (N.D. Ill. 2003) (citing Kroll, 934 F.2d at 907). "A State may effectuate a waiver of its constitutional immunity by a state statute or constitutional provision, or by otherwise waiving immunity to suit in the context of a particular federal program." Blalock v. Illinois Dep't of Human Servs., 349 F. Supp. 2d 1093, 1096 (N.D. Ill. 2004) (quoting Nelson v. Illinois, 36 F.3d 684, 690 (7th Cir. 1994); Bartley v. U.S. Dep't of the Army, 221 F. Supp. 2d 934, 950 (N.D. Ill. 2002)). The state must make a "clear declaration" that is "unequivocally expressed" to waive its Eleventh Amendment sovereign immunity and consent to the federal ...