United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
PHIL GILBERT DISTRICT JUDGE
matter comes before the court on the Report and
Recommendation (“R & R”) (Doc. 46) of
Magistrate Judge Reona J. Daly with regard to Defendants'
Motion (Doc. 30) to Dismiss; Plaintiff's Motion (Doc. 18)
to Alter or Amend the Order Referring Case to Magistrate
Judge; and Plaintiff's Motion (Doc. 42) for Leave to
Amend the Complaint. Plaintiff filed a timely objection (Doc.
50) to the R & R and defendants filed a timely response
(Doc. 51) to plaintiff's objections. Plaintiff then filed
a Reply brief (Doc. 52) to defendants' response.
Plaintiff cites to Local Rule 7.1 in support of his reply
brief; however, Rule 7.1 applies to an initial motion and not
to an R & R. Local Rule 73.1 governs an R & R and
provides that, “any party may respond to another
party's objections with 14 days after being served a
copy, ” but there is no provision for a party to file a
reply to a response. However, giving all benefit to the
plaintiff and because he has stated exceptional
circumstances, the Court will consider plaintiff's reply
brief in this instance.
threshold, the Court found that the Plaintiff's complaint
(Doc. 1) alleged the following claims:
Count 1: Negligence and medical malpractice
claims against Defendant United States of America under the
Federal Tort Claims Act, for the actions of its employees who
allowed Plaintiff's infections to persist for months
without adequate, timely, or effective testing or treatment;
Count 2: Claims against Defendants
Schneider, Mills, Kruse, and John/Jane Doe for unlawfully
taking Plaintiff's money for medical co-payments for
treatment of his chronic illnesses, in violation of the Fifth
Amendment, 18 U.S.C. § 4048(b)(2), 28 C.F.R. §
549.72(f), and the inmate trust fund law;
Count 3: Defendant Schneider charged
Plaintiff co-pays in order to retaliate against him for
seeking medical treatment. (Doc. 10).
Count 1 was dismissed without prejudice for failing to file
the required affidavit or certificate of merit as required by
Illinois law (735 IlCS 5/2-622) and Count 3 was also
dismissed without prejudice as it failed to state a claim for
Court may accept, reject or modify, in whole or in part, the
findings or recommendations of the magistrate judge in a
report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court
must review de novo the portions of the report to
which objections are made. The Court has discretion to
conduct a new hearing and may consider the record before the
magistrate judge anew or receive any further evidence deemed
necessary. Id. “If no objection or only
partial objection is made, the district court judge reviews
those unobjected portions for clear error.” Johnson
v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).
The Court has received an objection from the plaintiff and
will review de novo those portions of the report.
Motion to Amend.
& R recommends that the Plaintiff be allowed to amend his
complaint as it seeks to reinstate Count 1 - plaintiff's
FTCA medical negligence claim - but that it should be denied
in all other respects as it seeks to reinstate, add, or
modify any other claims/allegations. The plaintiff does not
object to this recommendation and states, “Thelen is ok
with the magistrate's conclusion for the sake of brevity
he will forego some previously dismissed claims except for
Court one.” (Doc. 50, pg. 3).
he goes on to state that he was entitled as a matter of right
to amend his complaint as the, “defendants had filed a
Fed.R.Civ.P. 12(b)(6) motion which Thelen thought was a
‘responsive pleading.'” As the defendants
note, Federal Rule of Civil Procedure 15(a)(1)(B) provides
that the time for amendment as a matter of right is 21 days
after a responsive pleading OR 21 days after service of a
motion under Rule 12(b) - whichever is earlier.
Defendants' Rule 12 motion was filed on June 13, 2016. As