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Stewart v. Evanston Insurance Co.

United States District Court, N.D. Illinois, Western Division

May 22, 2015

LAVERTIS STEWART (A-15380), Plaintiff,


PHILIP G. REINHARD, District Judge.

For the reasons set forth below, plaintiff Lavertis Stewart is ordered to show cause why his claims in the third amended complaint should not be summarily dismissed pursuant to 28 U.S.C. § 1915(e)(2) for failure to state a claim with regard to Dr. Imhotep Carter, Dr. Jill Wahl, and John Does Two through Fifteen. Failure to do so will result in summary dismissal of those claims pursuant to 28 U.S.C. § 1915(e)(2) for the reasons set forth more fully below.

If plaintiff wishes to respond, he must do so by July 27, 2015. Defendants Dr. Carter and Dr. Wahl are given leave to reply by August 26, 2015.


Despite being in the early stages of discovery, this case has a complicated procedural history spanning nearly three years. Upon review of plaintiff's recently filed third amended complaint [132] and Dr. Arthur Funk's motion to dismiss on the grounds that the claims against him are untimely [148], the court has taken occasion to reexamine plaintiff's claims in light of that history pursuant to its continuing screening duty for cases filed in forma pauperis. 28 U.S.C. § 1915(e)(2) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that... the action... is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief.") (emphasis supplied); see also Lasley v. Welborn, 192 F.Appx. 541 (7th. Cir. 2006) (finding that "§ 1915(e)(2) authorized the action taken by the district court" to screen suit eighteen months after filing and dismiss for failure to state a claim); Holly v. Wexford Health Services, Inc., 339 F.Appx. 633, 636 (7th Cir. 2009) (court confronted with basis to dismiss under § 1915(e)(2) "need not wait for a motion to dismiss and can apply [§ 1915(e)(2)] sua sponte"); Thomas v. General Motors Acceptance Corp., 288 F.3d 305, 306 (7th Cir. 2002) (because the conditions of § 1915(e)(2) were satisfied, "the suit had to be dismissed; the judge had no choice").

In screening this action, it appears that plaintiff fails to state a claim against Dr. Carter and Dr. Wahl because the allegations against them in the third amended complaint are untimely and do not relate back under Rule of Civil Procedure 15(c)(1)(C). Likewise, the allegations against John Does Two through Fifteen appear either untimely or barred due to the doctrine of law of the case. To understand why, a discussion of the procedural history of this case is appropriate.


1. Original Complaint - Filed July 19, 2012.

On July 19, 2012, plaintiff filed his original complaint, alleging a deliberate indifference claim against Dr. Mesrobian, former medical director of Dixon Correction Center, in his individual and official capacity, as well as seven John Doe "correctional officers." [1] at 2, 10 (naming six John Does in the caption but referring to a "#7 c/o" within the body of the complaint). Plaintiff alleged that he suffered from carpal tunnel and bursitis/arthritis, which was aggravated and worsened when the John Doe correctional officers forced him to wear "Black Box" restraints[1] on his wrists when he was sent from Dixon Correctional Center to the University of Illinois Chicago ("UIC") for medical treatment. He alleged that after being forced to wear the Black Box during UIC visits in December of 2008 by John Doe One, January 27, 2009 by John Doe Two, and March 3, 2009 by John Doe Three, he complained to Dr. Mesrobian on March 4, 2009, at which time Dr. Mesrobian agreed to inform the officers not to use the restraints. Nevertheless, plaintiff was again forced to wear the Black Box during subsequent UIC visits on March 31, 2009, by John Doe Four, and April 22, 2009, by John Doe Five. During the April 22, 2009 visit, plaintiff informed John Doe Five that Dr. Mesrobian had agreed to order that the Black Box no longer be used. John Doe Five looked through plaintiff's "medical writ package" for the UIC visit and found no order. John Doe Five then contacted the nursing station and was informed that Dr. Mesrobian would not issue such an order. As plaintiff did not have a medical order exempting him, John Doe Five made him choose whether to wear the Black Box or refuse the UIC visit. Because plaintiff believed his condition was life threatening, he agreed to wear the Black Box despite the pain.

Plaintiff further alleged that despite suffering outward manifestations of injury and meeting with Dr. Mesrobian on April 24, 2009 to again request a "no Black Box" order, plaintiff was again forced to wear the Black Box by John Doe Six during a UIC visit on May 5, 2009, during which John Doe Six informed plaintiff that Dr. Mesrobian had not issued an order. Plaintiff once again requested an exemption order from Dr. Mesrobian on May 8, 2009, but despite admitting that the Black Box was "very painful, " Dr. Mesrobian refused to grant plaintiff's request. [1] at 7-8.

Following Dr. Mesrobian's last refusal, plaintiff filed a grievance on June 4, 2009. Plaintiff alleged that "said grievance was not resolved until July 22, 2010, after Dr. Mesrobian was no longer employed at Dixon Correctional Center[.]" [1] at 9. He further alleged that on July 22nd, the grievance was forwarded to the Chief of Health Services for review and final recommendation, who in turn forwarded the grievance to "Dr. Mesrobian's replacement Dr. [Imhotop] Carter, " who reviewed plaintiff's request and granted plaintiff a six-month "no Black Box" permit. Id. Despite the temporary relief afforded by Dr. Carter's permit, plaintiff alleged that "[t]his too has proven to be problematic because now Dr. Carter is no longer employed at Dixon Correctional Center, and the No Black Box' permits prescribed by him has expired. Plaintiff informed the new Doctor of his condition and the need for the No Black Box' permit, but on or about May 29, 2012 plaintiff was once again given an ultimatum" by John Doe Seven, after searching plaintiff's writ package and finding no permit, to wear the Black Box or refuse his UIC medical appointment. [1] at 9.

Of note, despite being filed pro se, plaintiff's original complaint set forth the specific actions and respective dates he contended were violative of his civil rights. Plaintiff did not name Dr. Carter as a defendant, despite explicitly referring to him as the Medical Director who ultimately replaced Dr. Mesrobian, and he did not allege any action by Dr. Carter which would constitute deliberate indifference as to the Black Box restraints. Indeed, the only action regarding the Black Box that Dr. Carter is alleged to have taken was to grant plaintiff a six-month permit. Plaintiff also did not specifically allege that he was forced to wear the Black Box during any visits between May 5, 2009 and May 29, 2012. While he did refer to a "new Doctor" who apparently refused to grant him a new permit at the time of the May 29, 2012 incident, this individual was not named as one of the John Doe defendants, who plaintiff explicitly referred to throughout the complaint as various corrections officers.

The court dismissed the claims against Dr. Mesrobian without prejudice, finding that he was deceased at the time of filing, and afforded plaintiff time to amend his complaint to name a suable party. [6]. The court also dismissed with prejudice the claims against the John Doe correctional officers because, according to the complaint, whenever plaintiff complained to them about the Black Box, they responded by checking whether plaintiff was medically exempt from wearing the Black Box. The officers only forced plaintiff to choose whether to wear the Black Box or refuse medical treatment after verifying with his medical providers that an exception for the Black Box restraints would not be authorized. Thus, they were only following proper procedures and could not be said to be deliberately indifferent.

2. First Amended Complaint - Filed November 16, 2012.

Plaintiff amended his complaint on November 16, 2012, omitting the John Doe defendants, naming the special administrator for Dr. Mesrobian's estate (and asking the court to appoint one), and adding "Dr. Imhotop Carter (in his official capacity only), " as well as the director of the IDOC. While plaintiff's first amended complaint was substantially similar to the original, plaintiff clarified that he was challenging what he believed to be the IDOC's official policy "of contouring inmates into the Black Box Restraint [which] serve[s] only one purpose, TORTURE[.]'" [13] at 11. In addition, despite explicitly naming Dr. Carter "in his official capacity only, " the first amended complaint also added one sentence of allegations against him: "Dr. Carter was also deliberately indifferent to plaintiff's serious medical needs by requiring him to go out in Black Box's on 1-28-10; 3-9-10; and 5-14-10 before finally issuing a 6-month NO BLACK BOX' restraint order at [the Chief of Health Service's] inquiry finalized on 8-28-10." [13] at 10. Finally, the first amended complaint attached ...

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