United States District Court, S.D. Illinois
G. WILKERSON United States Magistrate Judge
Robert Stoces, an inmate in the custody of the Illinois
Department of Corrections (“IDOC”), filed this
lawsuit pursuant to 42 U.S.C. § 1983 on March 11, 2015
alleging his constitutional rights were violated while he was
incarcerated at Logan Correctional Center. More specifically,
Plaintiff's complaint alleges that Defendants, Drs.
Obaisi, Wahl, and Larson, and their employer, Wexford Health
Sources, Inc., failed to diagnose and treat his colon cancer
in a timely manner, causing his cancer to spread.
February 2, 2016, the Court assigned Attorney Jason Andrew
Charpentier to represent Plaintiff in this matter. Following
Attorney Charpentier's appointment, he filed a motion, on
behalf of Plaintiff, seeking to file an amended complaint.
The Court granted Plaintiff's motion (noting no objection
was filed by Defendants), and Plaintiff's Second Amended
Complaint, the current operative complaint, was filed on
August 26, 2016 (see Doc. 56).
filed a Motion to Dismiss Count II of Plaintiff's
complaint on September 1, 2016, which is now before the Court
(Doc. 58). Defendants seek dismissal of Count II of
Plaintiff's Second Amended Complaint pursuant to Rule
12(b)(6) of the Federal Rules of Civil Procedure and 735 ILCS
§ 5/2-622. Specifically, Defendants assert that Count II
of Plaintiff's Second Amended Complaint, setting forth a
state law claim for medical negligence against all
Defendants, should be dismissed for Plaintiff's failure
to provide an affidavit as required by 735 ILCS 5/2-622. For
the reasons set forth below, Defendants' Motion to
Dismiss is DENIED.
considering a motion to dismiss, the Court accepts as true
all well-pleaded allegations in the complaint and draws all
possible inferences in favor of the plaintiff. See
Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614,
618 (7th Cir. 2007) (quotations omitted). A plaintiff need
not set out all relevant facts or recite the law in his or
her complaint; however, the plaintiff must provide a short
and plain statement that shows that he or she is entitled to
relief. See Fed. R. Civ. P. 8(a)(2). Thus, a
complaint will not be dismissed if it “contain[s]
sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” 556 U.S. at 678.
Additionally, “[a]llegations of a pro se complaint are
held ‘to less stringent standards than formal pleadings
draft by lawyers … Accordingly, pro se
complaints are liberally construed.” Alvarado v.
Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (quoting
Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other
to 735 ILCS § 5/2-622, “any action, whether in
tort, contract, or otherwise, in which the plaintiff seeks
damages for injuries or death by reason of medical
malpractice, hospital or other healing malpractice, the
plaintiff's attorney or the plaintiff, if the plaintiff
is proceeding pro se, shall file an affidavit”
attesting that a qualified, licensed physician has reviewed
the case and determined that “there is a reasonable and
meritorious cause for the filing of such action.”
Failure to abide by this requirement “shall be grounds
for dismissal.” Id. The Seventh Circuit has
determined that while dismissal is necessary, courts have
discretion to dismiss with or without leave to amend.
Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir.
this case, the Court screened Plaintiff's original
complaint pursuant to 28 U.S.C. §1915A while he was
proceeding pro se and determined that Plaintiff had
filed an affidavit and report written by Lisa Johnson,
Director of Nursing for the IDOC that complied with the
requirements of § 5/2-622 (see Doc. 6, p. 7).
In his Second Amended Complaint, Plaintiff set forth
allegations that are substantively similar to those in his
original complaint, and, more importantly, attached the same
document written by Lisa Johnson in support of his medical
negligence claim. Although the Court acknowledges that
Plaintiff did not include an affidavit along with his Second
Amended Complaint, Defendants have not provided a convincing
argument for why the Court should reconsider its previous
determination that Lisa Johnson's written report is
sufficient to meet the requirements of § 5/2-622,
particularly in light of Illinois law that directs that
“[t]he technical requirements of [§ 2-622] should
not interfere with the spirit or purpose of the statute. The
absence of strict technical compliance with the statute is
one of form only and not of substance.” Comfort v.
Wheaton Family Practice, 939 N.E.2d 1032, 1043
(Ill.App.Ct. 2010). The Court has reviewed the report of Lisa
Johnson and finds it sufficient to allow Plaintiff to bring
his medical negligence claim against Defendants.
foregoing reasons, Defendants' Motion to Dismiss Count II
filed on September 1, 2016 (Doc. 58) is