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John Batiste, Jr v. Thomas Dart

October 19, 2011

JOHN BATISTE, JR., PLAINTIFF,
v.
THOMAS DART, ET AL.,
DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff John Batiste, Jr., originally pro se, brings this action against Defendants Cook County, Cook County Sheriff Thomas Dart, Salvador Godinez, Dr. Avery Hart, Dr. David Fagus, Cynthia Jones, Marilyn Pennington, Jacqueline Jack, Steven McNutt, and other unknown members of the Cook County Jail, Cermak Health Services of Cook County, and Cook County Department of Corrections. Now represented by counsel and on his fifth amended complaint, Plaintiff's current two-count complaint alleges that Defendants failed to provide him with adequate medical care while he was a pre-trial detainee in the Cook County Department of Corrections in violation of 42 U.S.C. § 1983 (Count I). Plaintiff also alleges a state law claim for negligence and willful and wanton conduct (Count II).

Defendants Jack, Hart, Pennington, and Cook County moved to dismiss Count II of Plaintiff's fifth amended complaint [78], and Defendants Dart and McNutt also have moved to dismiss Count II [82]. Plaintiff has moved to strike [96] the reply briefs filed by both sets of Defendants. For the reasons stated below, the Court denies Plaintiff's motion to strike [96] and grants in part and denies in part both motions to dismiss Count II.

II. Background*fn1

A.Factual Background

Plaintiff John Batiste was arrested on January 13, 2010, and transferred to the Cook County Jail on January 15, 2010. (Pl. Comp. ¶¶ 20-21) Plaintiff alleges that he has suffered from a congenital disease called Protein-C deficiency since approximately 1997. (Pl. Comp. ¶ 18) Plaintiff claims that he Plaintiff asserts that on February 2, 2010, he was seen by Dr. Ronald Ledvora and was told that his blood levels were non-therapeutic. Dr. Ledvora prescribed 8mg of Coumadin to be given daily for a month and 75 units of Lovenox to be given twice a day for a three day period. (Pl. Comp. ¶¶ 24-25) Plaintiff asserts that he was given his first dose of Lovenox on February 4, 2010. (Pl. Comp. ¶ 26)

Plaintiff claims that shortly after receiving the Lovenox he began to experience extreme pain in his right thigh area. (Pl. Comp. ¶ 27) Plaintiff alleges that on the evening of February 4, 2010, he complained to Defendants Pennington and Jones about the pain and Defendants Pennington and Jones told him that they would call him later to address the pain, but never did. (Pl. Comp. ¶¶ 28-29) Plaintiff asserts that on February 5, 2010, he complained about his pain to Defendant Jack, and Jack failed to address his complaints. (Pl. Comp. ¶ 30) Plaintiff claims that while he was waiting for the nurses to return, he complained of pain to Defendant McNutt, a correctional officer at Cook County Jail. Plaintiff alleges that he made multiple requests for medical treatment for his pain and Defendants Jack, Jones and Pennington ignored those requests. (Pl. Comp. ¶ 34) Plaintiff asserts that he was finally seen for the pain on February 6, 2010, when Defendant McNutt sent Batiste for medical treatment at Cermak Hospital after seeing that he was unable to get out of his bed in his cell. He then was transferred to Stroger Hospital where he remained until February 19, 2010. (Pl. Comp. ¶¶ 35, 37, 40) At that point, he was transferred back to Cook County Jail.

Plaintiff claims that he did not receive pain medication until February 7, 2010, and continued to be in pain until February 19, 2010. (Pl. Comp. ¶¶ 39, 42). He also maintains that at Stroger Hospital he was diagnosed with a blood clot and hematoma injury and prescribed physical therapy to regain full mobility to his leg. According to Plaintiff, the jail did not provide him with access to physical therapy and that as a result of Defendants' deliberate indifference and refusal to provide him with prompt and timely medical treatment, he suffered from extreme pain from February 2, 2010, through February 19, 2010.

Count II of Plaintiff's fifth amended complaint asserts a state law claim of medical negligence brought against Defendants Dart, Godinez, Jack, Jones, Pennington, and McNutt. Plaintiff alleges that Defendants deviated from the standard of care in their treatment of Plaintiff by failing to provide prompt medical treatment when such treatment was requested by Plaintiff, which caused Plaintiff to suffer physical pain, continue to be disabled, and to incur future medical expenses.

B. Procedural Background

Plaintiff filed his original complaint on June 4, 2010, and his first amended complaint less than one week later, on June 10, 2010. Plaintiff filed his second amended complaint on July 15, 2010, and his third and fourth amended complaints on July 30, 2010 and October 14, 2010, respectively. There are no substantive differences between these complaints.

On June 4, 2010, Plaintiff filed a motion for appointment of counsel, which the Court denied on June 15, 2010. On January 20, 2011, the Court revisited its prior ruling and appointed Attorney O'Brien as counsel for Plaintiff in accordance with counsel's trial bar obligations under Local Rule 83.37. Counsel was required to file an appearance, meet with Plaintiff, and confer with Defendants' counsel prior to February 23, 2011. On February 10, 2011, counsel filed an agreed motion to extend the deadlines set forth in the January 20, 2011 minute entry. The motion was granted on February 14, 2011, and counsel was given until March 29, 2011, to file his appearance, confer with Plaintiff, and confer with Defendants' counsel. Plaintiff's counsel filed his appearance on March 9, 2011, and subsequently met with Batiste and conferred with Defendants' counsel. On April 29, 2011, with the assistance of his newly-appointed counsel, Plaintiff filed his Fifth Amended Complaint, adding a pendent state claim.

C. Motion to Strike

Plaintiff filed a motion to strike Defendants' reply briefs, maintaining that Defendants have raised a new argument in their replies that was not raised in the original motions to dismiss. Defendants' motions to dismiss argued that Plaintiff's state law claim in his fifth amended complaint is time-barred and should be dismissed. In their initial motion, Defendants relied on the statute of limitations contained in the Illinois Tort Immunity Act, 745 ILCS 10/8-101(a). In his response brief, Plaintiff's first argument is titled "Batiste's Pendant State Claim is Timely Pursuant to the Relation Back Doctrine Because it Arose Out of the Conduct, Transaction or Occurrence Set Out -- or Attempted to be Set Out -- in His Timely Section 1983 Claim." Plaintiff goes on to argue in his response that ...


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