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Thelenn v. Schneider

United States District Court, S.D. Illinois

February 27, 2017

PATRICK THELEN, Plaintiff,
v.
KIMBERLY M. SCHNEIDER, et al., Defendants.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE

         This 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.

         1. Background.

         On 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).

         However, 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 unconstitutional retaliation.

         2. Standard.

         The 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.

         3. Analysis.

         a. Motion to Amend.

         The R & 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).

         However, 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 ...


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