The opinion of the court was delivered by: Reagan, District Judge
A. Factual and Procedural History
On August 27, 2006, Plaintiff Mary Chapman, as the Administrator of the Estate of Marcus Chapman, filed a complaint in this court against several defendants (see Doc. 1). According to Plaintiff's complaint, on or about August 26, 2004, Marcus Chapman, an inmate at Tamms Correctional Center ("Tamms"), committed suicide. Id. Plaintiff asserts that Marcus Chapman twice previously had attempted suicide and had been diagnosed with a variety of mental impairments, including depression.
Each named defendant, Plaintiff states, "was personally familiar with Mr. Chapman's history of suicide attempts, and that he suffered from mental illness" (Doc. 1, p. 1). Yet, "[d]espite clear signs of Mr. Chapman's continued mental illness, defendants failed to treat Mr. Chapman's mental illness, failed to take steps adequate to protect Mr. Chapman, and punished him by subjecting him to cruel and unusual conditions of confinement at Tamms, without regard for his serious mental illness." Id. Consequently, Plaintiff asserts, each defendant is liable for having violated Marcus Chapman's ("Chapman") rights pursuant to 42 U.S.C. § 1983, as well as the Eighth and Fourteenth Amendments to the Constitution of the United States.
Plaintiff's complaint is organized into four counts. In Count One, Plaintiff alleges that all defendants failed to treat Chapman's serious medical conditions, in violation of the Eighth Amendment. Id. at 8. In Count Two, Plaintiff alleges that all defendants failed to protect Chapman from readily foreseeable harm, in violation of the Eighth Amendment. Id. at 9.In Count Three, Plaintiff alleges all defendants subjected Chapman to "cruel and unusual punishment," conditions of confinement at Tamms which, in light of his mental illness, purportedly violated the Eighth Amendment. Finally, in Count Four, Plaintiff alleges that all defendants, except for defendant Shelton Frey, committed medical malpractice by failing to properly treat Chapman's mental illnesses.
Now before this Court are three motion to dismiss: a motion to dismiss filed by defendants Marvin Powers, Rakesh Chandra, Wexford Health Services, Kristin Kwasnewski, M. Rollins Hill, and Shelby Dunn ("first motion") (Doc. 19), a separate motion to dismiss filed by defendants Brian Ellis, Kelly Rhodes, Teri Caliper, C/O Vick, and Shelton Frey ("second motion")(Doc. 27), and a motion to dismiss filed by Defendant Wanda Evans ("third motion") that is identical to Defendants' first motion (Doc. 59).
B. Standard Governing a Motion to Dismiss
FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6) governs motions to dismiss for failure to state a claim upon which relief can be granted. When considering a motion to dismiss for failure to state a claim, the Court accepts the plaintiff's allegations as true, and construes all inferences in favor of the plaintiff. Hishon v. King & Spalding, 467 U.S. 69, 73 (1984); Thompson v. Ill. Dep't of Prof. Regulation, 300 F.3d 750, 753 (7th Cir. 2002). Dismissal for failure to state a claim is warranted only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Mattice v. Memorial Hosp. of South Bend, Inc., 249 F.3d 682, 684 (7th Cir. 2001), citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accord Hishon, 467 U.S. at 73 (Rule 12(b)(6) dismissal is appropriate only if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations").
"Federal complaints plead claims rather than facts." Kolupa v. Roselle Park District, 438 F.3d 713, 714 (7th Cir. 2006). Under the liberal notice pleading requirements of the federal rules, all that is required to state a claim "is a short statement, in plain ... English, of the legal claim." Kirksey v. R.J. Reynolds Tobacco Co., 168 F.3d 1039, 1041 (7th Cir. 1999); FED.R.CIV.P. 8(a)(2). "It is enough to name the plaintiff and the defendant, state the nature of the grievance, and give a few tidbits (such as the date) that will let the defendant investigate." Kolupa, 438 F.3d at 714. "A full narrative is unnecessary." Id.; see also, e.g., Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); McDonald v. Household International, Inc., 425 F.3d 424, 427-28 (7th Cir. 2005); Bartholet v. Reishauer A.G. (Zurich), 953 F.2d 1073, 1077-78 (7th Cir. 1992). Thus, Rule 12(b)(6) dismissal should be denied "if any facts that might be established within [a plaintiff's] allegations would permit a judgment for the plaintiff." Duda v. Board of Education of Franklin Park Public School District No. 84, 133 F.3d 1054, 1057 (7th Cir. 1998).
C. Defendant's First Motion for Dismissal
In the first motion to dismiss before this Court (Doc. 19), the moving defendants assert two main arguments for dismissal. First, Defendants argue that Plaintiff's medical malpractice claim in Count Four is insufficient as a matter of law because Plaintiff has failed to comply with the provisions of 735 ILCS 5/2-622. Secondly, Defendants assert that Counts One, Two, and Three are duplicative so that two of the three counts must be dismissed. The Court considers each argument in turn.
Whether Compliance with 735 ILCS 5/2-622 is Required
Defendants first argue that this Court must dismiss Count Four because Plaintiff failed to comply with an Illinois Statute, 735 ILCS 5/2-622. Section 2-622provides, in part: "[i]n any action, whether in tort, contract, or otherwise, in which plaintiff seeks damages for injuries or death by reason of medical malpractice, hospital, or other healing art malpractice ... [the plaintiff] shall file an affidavit" from a medical professional indicating that the case has merit. 735 ILCS 5/2-622. Failure to file an affidavit pursuant to § 2-622 is cause for dismissal under 735 ILCS 5/2-619 pursuant to 735 ILCS 5/2-622.
Plaintiff does not dispute that she failed to file such an affidavit with her complaint. However, Plaintiff argues that § 2-622 is a state procedural rule and is inapplicable in federal cases involving medical malpractice. Pursuant to Erie R.R. Company v. Tompkins, 304 U.S. 64, 78 (1938), if this Court finds otherwise -- that § 2-622 is instead a substantive law -- this Court is required to apply that state law, regardless of the jurisdictional basis for the case. See Wainwright Bank & Trust Co. v. Railroadmens Fed. Sav. & Loan Ass'n of Indianapolis, 806 F.2d 146, 149-50 (7th Cir. 1986).
The United States Court of Appeals for the Seventh Circuit has implicitly held that § 2-622 is a substantive law that should apply to medical malpractice claims brought in federal courts. In Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000), an appeal from this Court, the Seventh Circuit noted that the plaintiff in the underlying matter had filed a certificate of merit to accompanying his medical malpractice claims. Nonetheless, the Seventh Circuit agreed with the district court's decision to dismiss the plaintiff's medical malpractice claim because the certificate of merit was found to be inadequate pursuant to the requirements of § 2-622. Id. at 614.
In agreeing with the district court's dismissal, the Seventh Circuit favorably discussed the merits of § 2-622, noting that the purpose of the requirement is "to minimize frivolous malpractice suits." Id. at 613. The Court further cited with approval § 2-622: "a certificate and report must be filed 'as to each defendant who has been named in the complaint ...; failure to abide by this requirement' shall be grounds for dismissal." Id. citing 735 ILCS 5/2-622. Before turning to its determination of whether the district court's dismissal without leave to amend was proper, the Court added: "dismissal is mandatory ..."Lingle, 223 F.3d 613.
Conspicuously absent from the Seventh Circuit's discussion in Lingle is any indication that it was improper for the district court to apply § 2-622 to the medical malpractice count of the plaintiff's complaint. Indeed, the Lingle Court went on to hold that it was an abuse of discretion to dismiss the claim without affording an opportunity for plaintiff to amend in conformity with § 2-622. Id. Such a holding seems nonsensical if the Seventh Circuit considered § 2-622 a procedural requirement. That fact, combined with the Court's lengthy discussion of § 2-622 absent any criticism of the district court's application of the requirement, creates a strong implication that the Seventh Circuit favors district courts applying § 2-622 to medical malpractice claims.
The vast majority of Illinois federal courts to consider this question -- both before and after the Lingle decision -- have decided in favor of applying the statute. See, e.g., Ibscher v. Snyder, 2003 WL 21696197 (N.D.Ill. 2003)(dismissing two medical malpractice counts for plaintiff's failure to comply with § 2-622); Smith v. Gottlieb, 2002 WL 1636546 (N.D. Ill. 2002)(applying § 2-622 to dismiss medical malpractice cause of action before court on basis of diversity jurisdiction); Wilson v. Formigioni, 1992 WL 345399 (N.D. Ill. 1992)(finding that § 2-622 is "substantive" and not "procedural," and dismissing three medical malpractice counts in § 1983 cause of action for plaintiffs failure to comply with § 2-622's requirements); Landstrom v. Illinois Dept. of Children and Family Services, 699 F.Supp. 1270 (N.D. Ill. 1988), affirmed 892 F.2d 670 (7th Cir. 1990)(dismissing a pendent medical malpractice count in § 1983 case for plaintiff's failure to comply with § 2-622); Thompson v. Kishwaukee Valley Medical Group, 1986 WL 11381 (N.D.Ill. 1986)(holding plaintiff's failure to comply with § 2-622 requires dismissal in federal court).
Moreover, in addition to Lingle, on at least two prior occasions, this very Court has applied § 2-622 in order to dismiss pendent medical malpractice claims that were included in causes of action before the Court on the basis of federal question jurisdiction. See, e.g., Bommersbach v. Ruiz, 461 F.Supp. 2d 743 (S.D. Ill. 2006)(concluding that § 2-622 constitutes state substantive law for the purpose of the Erie doctrine); Salsman v. ...