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Charles Dabbs, # N-94349 v. James Fenoglio

March 21, 2013


The opinion of the court was delivered by: Reagan, District Judge:


Plaintiff, who is currently incarcerated at Lawrence Correctional Center ("Lawrence"), brings this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff is serving an eighty-five year sentence for murder, among other convictions. His claims arose during his incarceration at Lawrence. Plaintiff claims that the four defendants, i.e., James Fenoglio (a doctor at Lawrence), Marc Hodge (Lawrence‟s warden), Phil Martin (Lawrence‟s health care administrator), and Wexford Health, Inc. (Lawrence‟s health care service provider), violated his constitutional rights by delaying treatment for his right shoulder injury (Doc. 1, p. 5). Plaintiff seeks compensatory damages (Doc. 1, p. 24).

Specifically, Plaintiff alleges that he tore his right bicep and shoulder tendon while working in Lawrence‟s kitchen on June 14, 2011 (Doc. 1, pp. 5, 8). He signed up for sick call the same day, but was not seen by medical staff until June 19th.*fn1 Defendant Fenoglio first met with Plaintiff on July 7th and referred him to an orthopedic specialist the same day. MRIs of Plaintiff‟s right shoulder were completed on August 23rd and October 24th. Defendant Fenoglio reviewed the MRI results with Plaintiff on October 26th.

Plaintiff met with an orthopedic specialist on November 29th (Doc. 1, pp. 6, 14). After reviewing Plaintiff‟s MRI results, the specialist concluded that Plaintiff had sustained a right shoulder rotator cuff tear that was beyond repair (Doc. 1, p. 14). The specialist recommended no treatment of Plaintiff‟s shoulder, due to the risk of further injury. The specialist opined that the injury was permanent because Lawrence‟s medical staff "took too long to get [Plaintiff] treated" (Doc. 1, pp. 6, 8). When Defendant Fenoglio reviewed the orthopedic specialist‟s report with Plaintiff on December 1st, the specialist stated, "No one gets seen right away, not even on the streets" (Doc. 1, p. 6). Defendant Fenoglio told Plaintiff that he would undergo physical therapy; to date, Plaintiff has received none (Doc. 1, p. 8). Plaintiff now sues Defendants for negligence and for violating his constitutional right to receive adequate medical care.

Merits Review Pursuant to 28 U.S.C. § 1915A

According to 28 U.S.C. § 1915A, the Court is required to conduct a prompt threshold review of the complaint. Accepting Plaintiff‟s allegations as true, the Court finds that Plaintiff has articulated a colorable constitutional claim against Defendant Fenoglio for deliberate indifference to a serious medical need (Count 1).

However, Plaintiff has failed to state an actionable constitutional claim against any of the remaining defendants. Plaintiff lists Defendants Hodge and Martin among the defendants, but makes no allegations against any of them in the body of the complaint. Plaintiffs are required to associate specific defendants with specific claims, so that the defendants are put on notice of the claims brought against them and so that they can properly answer the complaint.

See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); Fed. R. Civ. P. 8(a)(2). Where a plaintiff has not included a defendant in his statement of the claim, the defendant cannot be said to be adequately put on notice of which claims in the complaint, if any, are directed against him. Furthermore, merely invoking the name of a potential defendant is not sufficient to state a claim against that individual. See Collins v. Kibort, 143 F.3d 331, 334 (7th Cir. 1998). In the case of those Defendants in supervisory positions, the doctrine of respondeat superior is not applicable to § 1983 actions. Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir. 2001) (citations omitted). Plaintiff has not alleged that any of the above defendants is "personally responsible for the deprivation of a constitutional right," id., and a defendant cannot be liable merely because he supervised a person who caused a constitutional violation. Accordingly, Defendants Hodge and Martin will be dismissed from this action without prejudice.

The same holds true for Defendant Wexford Health, Inc. Plaintiff makes no allegation that any individual defendant acted or failed to act as a result of an official policy espoused by Wexford. See Woodward v. Corr. Med. Serv. of Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004) (corporation can be held liable for deliberate indifference only if it had a policy or practice that caused the violation). Accordingly, Defendant Wexford Health, Inc. will also be dismissed from this action without prejudice.

As for Defendant Fenoglio, Plaintiff also raises a negligence, or "medical malpractice," claim, based on the same conduct detailed above (Count 2). A defendant can never be held liable under § 1983 for negligence. Daniels v. Williams, 474 U.S. 327, 328 (1986); Zarnes v. Rhodes, 64 F.3d 285, 290 (7th Cir. 1995). However, where a district court has original jurisdiction over a civil action such as a § 1983 claim, it also has supplemental jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long as the state claims "derive from a common nucleus of operative fact" with the original federal claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). "A loose factual connection is generally sufficient." Houskins v. Sheahan,549 F.3d 480, 495 (7th Cir. 2008) (citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)). While this Court has supplemental jurisdiction over these state-law claims pursuant to 28 U.S.C. § 1367, this is not the end of the matter.

Under Illinois law, a Plaintiff "[i]n any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice," must file an affidavit along with the complaint, declaring one of the following: 1) that the affiant has consulted and reviewed the facts of the case with a qualified health professional who has reviewed the claim and made a written report that the claim is reasonable and meritorious (and the written report must be attached to the affidavit); 2) that the affiant was unable to obtain such a consultation before the expiration of the statute of limitations, and affiant has not previously voluntarily dismissed an action based on the same claim (and in this case, the required written report shall be filed within 90 days after the filing of the complaint); or 3) that the plaintiff has made a request for records but the respondent has not complied within 60 days of receipt of the request (and in this case the written report shall be filed within 90 days of receipt of the records). See 735 ILL. COMP. STAT. § 5/2-622(a) (as amended by P.A. 90-579, effective May 1, 1998).*fn2 A separate affidavit and report shall be filed as to each defendant. See 735 ILL. COMP. STAT. § 5/2-622(b).

Failure to file the required affidavit is grounds for dismissal of the claim. See 735 ILL. COMP. STAT. § 5/2-622(g); Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). However, whether such dismissal should be with or without prejudice is up to the sound discretion of the court. Sherrod, 223 F.3d at 614. "Illinois courts have held that when a plaintiff fails to attach a certificate and report, then "a sound exercise of discretion mandates that [the plaintiff] be at least afforded an opportunity to amend her complaint to comply with section 2-622 before her action is dismissed with prejudice.‟" Id.; see also Chapman v. Chandra, 2007 WL 1655799 *4-5 (S.D. Ill. 2007).

In the instant case, Plaintiff has failed to file the necessary affidavit. Therefore, the claim in Count 2 is subject to dismissal. Plaintiff shall be allowed 60 days from the date of this order to file the required affidavit. Should Plaintiff fail to timely file the required ...

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