Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Wheeler v. Talbot

United States District Court, Seventh Circuit

January 29, 2014

ANTHONY WHEELER, Plaintiff,
v.
DR. PAUL TALBOT, KEITH ANGLIN and YOLANDE JOHNSON, Defendants.

OPINION

HAROLD A. BAKER, District Judge.

This case is before the court for ruling on the Motion to Dismiss (#65) filed by Defendant, Dr. Paul Talbot, and various pro se Motions filed by Plaintiff, Anthony Wheeler. Following a careful review of the pending Motions, this court rules as follows: (1) Defendant Talbot's Motion to Dismiss (#65) is GRANTED; (2) Plaintiff's Motion for Summary Judgment (#71) is DENIED; (3) Plaintiff's Motion for Partial Declaratory Judgment (#72) is DENIED; (4) Plaintiff's Fifth Motion for Appointment of Counsel and/or Third Motion for Appointment of Health Care Monitor and/or Third Motion for an Expert Medical Witness (#80) is DENIED; (5) Plaintiff's Motion for the Substitution of Parties (#83) is DENIED; (6) Plaintiff's First Motion Compelling Appearance and Issuance of Subpoena to Deponent (#84) is DENIED; (7) Plaintiff's First Motion for Depositions (#85) is DENIED; (8) Plaintiff's Motion for Initial Case Management Conference (#89) is DENIED; and (9) Plaintiff's Motion for Judgment on the Pleadings (#90) is DENIED. In addition, the pro se documents filed by Plaintiff on January 27, 2014 (#91, #92, #93) are STRICKEN.

BACKGROUND

On January 31, 2013, Plaintiff filed his pro se Amended Complaint (#28). On June 25, 2013, United States District Court Judge Michael P. McCuskey entered an Opinion (#32). Judge McCuskey dismissed Counts 1, 4, 5 and 7 of Plaintiff's Amended Complaint for failure to state a claim. Judge McCuskey stayed Count 2 until the conclusion of the soy diet case pending before this court. Judge McCuskey determined that Plaintiff could proceed with Count 3 of the Amended Complaint, his deliberate indifference claim against Defendant Talbot regarding his keloid scars, and Count 6, his retaliation claim against Defendants Keith Anglin and Yolande Johnson. All other Defendants were terminated as parties to this action. Judge McCuskey also stated that he was exercising supplemental jurisdiction over Plaintiff's state law claim of medical malpractice against Talbot but declined to exercise supplemental jurisdiction over all of Plaintiff's other state law claims.

On July 23, 2013, Judge McCuskey denied Plaintiff's Motion for Preliminary Injunction, finding no basis for injunctive relief in this case. On October 16, 2013, Judge McCuskey granted Plaintiff's Motion for Leave to Appeal, and Plaintiff's appeal from the denial of his Motion for Preliminary Injunction remains pending in the Seventh Circuit Court of Appeals.

On December 11, 2013, this case was reassigned to United States District Judge Colin S. Bruce. On December 12, 2013, Judge Bruce entered an Opinion (#64) which granted Talbot's Motion for Leave to File Motion to Dismiss, granted Plaintiff's Motion for Leave to Appeal in forma pauperis, and denied Plaintiff's Motion to Stay Proceedings Pending Appeal. On January 10, 2014, Judge Bruce entered a Text Order recusing himself in this case, and the case was assigned to this court.

PENDING MOTIONS

I. MOTION TO DISMISS

On December 12, 2013, Defendant Talbot filed a Motion to Dismiss (#65) and Memorandum in Support (#66). Talbot pointed out that Illinois law requires an affidavit certifying the merit of a malpractice claim, citing 735 Ill. Comp. Stat. 5/2-622 (West 2010). Talbot further stated that Plaintiff failed to include the required affidavit. Talbot asked this court to dismiss Plaintiff's state law medical malpractice claim without prejudice. On January 3, 2014, Plaintiff filed a pro se Response and Objection to Defendant's Motion to Dismiss (#73). Plaintiff asked this court to liberally construe his pro se Amended Complaint and deny the Motion to Dismiss.

The statute cited by Talbot provides:

In 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, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:
1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional's review and consultation that there is a reasonable and meritorious cause for filing of such action.

735 Ill. Comp. Stat. 5/2-622(a)(1) (West 2010) (emphasis added). The statute provides two other options: in the situation where the affiant was unable to obtain a consultation before the expiration of the statute of limitations, "the certificate and written report required by paragraph 1 shall be filed within 90 days after the filing of the complaint, " 735 Ill. Comp. Stat. 5/2-622(a)(2); and, in the situation where the plaintiff or his attorney has made a request for records but the respondent has not complied within 60 days of receipt of the request, "the certificate and written report required by paragraph 1 shall be filed within 90 days following receipt of the requested records, " 735 Ill. Comp. Stat. 5/2-622(a)(3). The statute provides that "failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619." 735 Ill. Comp. Stat. 5/2-622(g) (West 2010). However, a dismissal based on this statute may be without prejudice. See McCastle v. Sheinkop, 520 N.E.2d 293, 296 (Ill. 1987).

The statute expressly applies to plaintiffs who are proceeding pro se. Moreover, "a valid section 2-622 report is a statutory requirement for filing a medical malpractice action." Christmas v. Dr. Donald W. Hugar, Ltd., 949 N.E.2d 675, 678 (Ill.App.Ct. 2011). The "underlying policy behind the statute is to reduce the number of frivolous suits that are filed and to eliminate such actions at an early stage, before the expenses of litigation have mounted.'" Christmas, 949 N.E.2d at 681, quoting DeLuna v. St. Elizabeth's Hosp., 588 N.E.2d 1139, 1142 (Ill. 1992). This court therefore agrees that Plaintiff's state law medical malpractice claim must be dismissed for failure to file the required certificate. Accordingly, Talbot's Motion to Dismiss (#65) is GRANTED and Plaintiff's state law medical malpractice claim is dismissed without prejudice.

II. MOTION FOR SUMMARY JUDGMENT

On December 31, 2014, Plaintiff filed a pro se document entitled Plaintiff's First Motion for Summary Judgment and Evidentiary Affidavits (#71). Plaintiff stated "Defendants in this cause are attempting to deliberately mislead this Honorable Court and otherwise derail this delicate phase of this judicial proceeding by [mistakenly] relying on 735 ILCS 5/2-622 (West 2010), and further asserting that this plaintiff failed to include an affidavit certifying the merit of his malpractice claim." Plaintiff then argued the Illinois Supreme Court Rule 191(b) "clearly shields and protects this pro se, imprisoned plaintiff from such herein named requirement." Plaintiff argued that he was "totally unable to procure said affidavit from the herein named Defendants." Plaintiff also argued that "a plaintiff can bring both a constitutional deliberate indifference claim and a state law malpractice claim in the same federal court suit against state prison medical staff." Plaintiff then asked this court to grant his First Motion for Summary Judgment. Plaintiff attached his own affidavit which stated:

1. That as a direct and proximate result of obvious security and the potential of threats, fraud, identity theft and the Anti Terrorist Act, this affiant is unable to secure an affidavit and/or written report from any of the herein named Defendant's or parties relevant ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.