The opinion of the court was delivered by: J. Phil Gilbert District Judge
Now pending before the Court is the Defendant United States of America's Motion to Dismiss Plaintiff Deveron Murphy's claim for medical malpractice (Doc. 10).
Plaintiff, currently an inmate in the United States Penitentiary at Marion, Illinois ("USP-Marion"), filed his complaint on October 22, 2008 (Doc. 1), alleging claims under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 1346, 2617-2680. Plaintiff alleges that on June 18, 2007, he was jogging in the recreation yard at USP-Marion when he tripped over a large pothole and fell, causing permanent damage to his left ankle (Doc. 1, p. 2). Plaintiff alleges that the pothole was not marked or covered (Doc. 1, p. 2). He further alleges that he received insufficient medical treatment for his injury (Doc. 1, p. 2).
The United States of America ("Defendant") filed the instant Motion to Dismiss the Plaintiff's Medical Malpractice Claim (Doc. 10) on November 30, 2009. In lieu of an answer, Defendant moves for dismissal of the claim pursuant to Fed. R. Civ. P. 12(b)(6) on the ground that Plaintiff did not file with his complaint a certificate of merit as required by 735 Ill. Comp. Stat. 5/2-622. In response, Plaintiff concedes that he did not file a certificate of merit as required by § 2-622, and that as a result of this shortcoming, his medical malpractice claim should be denied without prejudice (Doc. 12). Plaintiff asks, however, for injunctive relief in the form of a court order compelling the Federal Bureau of Prisons ("BOP") to transport him within a reasonable time to an outside physician of his choosing for the purposes of conducting an examination and obtaining an affidavit to supplement his complaint. He asks, alternatively, for leave to amend his complaint to include a claim of denial of access to the courts based on the BOP's failure to assist him in obtaining the affidavit (Doc. 12). The United States has filed a reply to the Plaintiff's response, challenging the viability of and lack of authority behind Plaintiff's request to see an outside physician (Doc. 15).*fn1
On a defendant's motion to dismiss, all facts in the complaint are accepted as true. Doss v. Clearwater Title Co., 551 F.3d 634, 639 (7th Cir. 2008). A complaint by a pro se plaintiff is to be construed more liberally than one prepared by counsel. Gutierrez v. Peters,111 F.3d 1364, 1369 (7th Cir. 1997). The complaint must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." FED. R. CIV. P. 8(a)(2). To state a cognizable claim, the complaint must provide enough detail to give defendants fair notice of the nature of the claim and the grounds upon which it rests and to show that relief is plausible. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-556 (2007). A mere recitation of the elements of the cause of action is insufficient. Id. The pleading must contain factual allegations that "raise the right to relief above the speculative level." Id. at 555.
Failure to File Certificate of Merit for Medical Malpractice in Illinois
Cases brought under the FTCA are governed by the substantive law of the place where the alleged acts or omission constituting negligence occurred. See 28 U.S.C. §§ 1346(b), 2674; Richards v. United States, 369 U.S. 1, 10 (1962); Bowen v. United States, 570 F.2d 1311, 1315-16 (7th Cir. 1978). Because the facts underlying Plaintiff's claim occurred at USP-Marion, Illinois law supplies the substantive rule.
Illinois law requires plaintiffs making a claim of medical malpractice to consult with a health professional who will certify that the claim has merit. 735. Ill. Comp. Stat. 5/2-622. This requirement takes the form of an affidavit and certificate of merit that must be filed with the complaint. Id. at § 2-622(a). The affidavit must state that "plaintiff's attorney, or the plaintiff, if the plaintiff is proceeding pro se" has consulted with a qualified health professional and the health professional believes that the claim has merit. Id. The certificate is the health professional's written report that "there is a reasonable and meritorious cause for filing of [the] action." Id. The failure to file the affidavit and certificate with a pleading is grounds for dismissal of the claim. Id. at §§ 2-622(g), 2-619.
The prevailing rule in this Court and elsewhere in the Seventh Circuit is that the §2-622 certificate of merit requirement is a substantive rule of Illinois law for purposes of claims brought under the FTCA. See Shank v. United States, No. 08-cv-214-JPG-PMF, 2008 WL 4671735 (S.D. Ill. Oct. 21, 2008) (dismissing FTCA survival action without prejudice to allow plaintiff to refile with the § 2-622 affidavit); Salsman v. United States, No. 03-cv-140-MJR, 2005 WL 2001320 (S.D. Ill. Aug. 19, 2005) (dismissing FTCA claim for failure to file a § 2-622 affidavit); see also Chenoweth v. Webster, No. 04-cv-1185, 2006 WL 771193 (C.D. Ill. Mar. 24, 2006) (applying § 2-622 to an FTCA action); Merrit v. Zollar, No. 95 C 2470, 1995 WL 263425 (N.D. Ill. 1995) (dictum) (same). This view is based on the Seventh Circuit's implicit application of the §2-622 requirement to a supplemental state law claim in Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000). Salsman, 2005 WL 2001320 at *5. This Court has further reasoned that § 2-622 is a substantive rule for application in federal courts because it is "limited to a particular area of law and motivated by concerns about the potential impact on primary behavior . . . of making it too easy for plaintiffs to win a particular case." Shank, 2008 WL 4671735, at *2; Salsman, WL 2001320, at *5 (quoting Murrey v. United States, 73 F.3d 1448, 1456 (7th Cir. 1996)). See also S.A. Healy Co. v. Milwaukee Metro. Sewerage Dist., 60 F.3d 305, 310 (7th Cir. 1995).
Dismissal for failure to comply with § 2-622 is mandatory, but whether to dismiss with or without prejudice is within the discretion of the Court. Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000); McCastle v. Sheinkop, 520 N.E.2d 293, 296 (Ill. 1987). Because Plaintiff has failed to file an affidavit and certificate of merit, the current medical malpractice claim will be dismissed. 735 Ill. Comp. Stat. 5/2-622(g). Allowing Plaintiff leave to refile with a certificate of merit, however, if he is able to secure one, does not undercut the purpose of § 2-622, which is to reduce the cost of frivolous lawsuits. McCastle, 520 N.E.2d at 296; see also Common v. West Suburban Hosp. Med. Ctr., 704 N.E.2d 731, 739 (Ill. App. Ct. 1998) ("[A] sound exercise of discretion mandates that [Plaintiff] be at least afforded an opportunity to amend [the] complaint to comply with section 2-622 before [the] action is dismissed with prejudice.").
With the above in mind, the Court will reserve ruling on Defendant's Motion to Dismiss the Plaintiff's Medical Malpractice Claim until Plaintiff is afforded an additional ...