United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
M. YANDLE, U.S. DISTRICT JUDGE
Armando Rodriguez, an inmate of the Illinois Department of
Corrections (âIDOCâ) currently incarcerated at Menard
Correctional Center (âMenardâ), brings this action for
alleged deprivations of his constitutional rights pursuant to
42 U.S.C. Â§ 1983. Plaintiff claims Menard is overcrowded and
understaffed, resulting in unconstitutional conditions of
confinement and inadequate healthcare. He seeks compensatory
damages and injunctive relief.
the entry of a Merit Review Order pursuant to 28 U.S.C.
§ 1915A, Plaintiff was allowed to proceed with the
following claims: overcrowded conditions at Menard subjected
Plaintiff to unconstitutional conditions of confinement
(Count 1); deliberate indifference to Plaintiff's serious
medical needs (Count 2); and intentional infliction of
emotional distress in violation of Illinois state law (Count
3). (Doc. 5, pp. 4-5). This matter is currently before the
Court on a Motion to Dismiss Plaintiff's Count 3 filed by
Defendants Dr. Siddiqui, Dr. Asselmeier, and Wexford Health
Sources, Inc. pursuant to Federal Rule of Civil Procedure
12(b)(6). (Doc. 30). Plaintiff did not file a response. For
the following reasons, Defendants' Motion is
Background - Count 3
Plaintiff makes the following allegations relevant to Count
3: Plaintiff began experiencing sharp tooth pain on April 3,
2018. Despite writing numerous sick call slips, letters, and
grievances to various prison employees, he did not see a
dentist until around May 20, 2018, at which time Dr.
Asselmeier prescribed antibiotics and generic Tylenol.
Plaintiff was told that he would have to come back for
another appointment because Dr. Asselmeier had to see too
many inmates for dental care. Plaintiff was also told that,
due to the inmate population and the inadequate number of
medical staff, there was a wait period on certain procedures.
Following the appointment, Plaintiff continued to have
extreme pain. He submitted more sick and dental request slips
and grievances. On June 26, 2018, Plaintiff woke up with the
right side of his face swollen and disfigured. He received an
appointment with Dr. Asselmeier, who again told him the delay
in treatment was caused by there being too many patients and
not enough doctors. Plaintiff spent a week in the Health Care
Unit receiving IV treatment, and upon discharge was told he
would have to come back to have the tooth examined.
Eventually, Plaintiff's tooth was extracted.
claim of intentional infliction of emotional distress is
premised on his claims in Counts 1 and 2. In Count 1,
Plaintiff claims that overcrowding at Menard led to the
deprivation of dental care. As for Count 2, he alleges that
because his medical condition went untreated and ignored, he
suffered from unbearable tooth pain, bleeding gums,
difficulty sleeping and eating, and ultimately an infection.
He asserts that he put Defendants on notice of his condition
through writing letters, grievances, and sick call slips, but
they disregarded his medical needs. He claims that by
deliberately ignoring the potential threat of harm that
existed to his health and safety, the Defendants intended to
inflict physical and emotional distress. (Doc. 1, p. 29).
motion to dismiss under Rule 12(b)(6) challenges the
sufficiency of the Complaint, not its merits. Fed.R.Civ.P.
12(b)(6); Gibson v. City of Chic., 910 F.2d 1510,
1520 (7th Cir. 1990). In considering a Rule 12(b)(6) motion,
the Court accepts as true all well-pleaded facts in the
plaintiff's Complaint and draws all reasonable inferences
from those facts in the plaintiff's favor.
AnchorBank, FSB v. Hofer, 649 F.3d 610, 614 (7th
Cir. 2011). Dismissal for failure to state a claim is
warranted only when “it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Mattice v.
Memorial Hosp. of South Bend, Inc., 249 F.3d 682, 684
(7th Cir. 2001), citing Conley v. Gibson, 355 U.S.
41, 45-46 (1957).
law requires a plaintiff seeking damages for medical
malpractice to attach to the Complaint an affidavit from the
plaintiff proceeding pro se and a written report
from a health professional attesting that after review of the
plaintiff's medical records, there is a reasonable and
meritorious cause for filing of such action. 735 ILCS
5/2-622(a) (“§ 2-622”). Failure to file an
affidavit and report is cause for dismissal under 735 ILCS
5/2-619 pursuant to § 2-622.
a claim requires a § 2-622 report depends on whether the
claim is one “in which the plaintiff seeks damages for
injuries or death by reason of medical, hospital, or other
healing art malpractice.” Woodard v. Krans,
600 N.E.2d 477, 486 (Ill.App.Ct. 1992) (quoting 735 ILCS
5/2-622). “Although a Complaint may not state a medical
malpractice claim on its face, it ‘may nonetheless come
within the ambit of [§ 2-622] if it sounds in
malpractice.'” Liebich v. Hardy, No.
11-c-5624, 2014 WL 1395957, at *1 (N.D. Ill. Apr. 10, 2014)
(citing Warren ex rel. Warren v. Dart, No.
09-cv-3512, 2010 WL 4883923, at *11 (N.D. Ill. Nov. 24, 2010)
and Bommersbach v. Ruiz, 461 F.Supp.2d 743, 748-49
(S.D. Ill. 2006)). “As a general rule, section
2-622's pleading requirements will apply if the
allegations contained in the plaintiff's complaint
involve issues of medical diagnoses, skill, knowledge, or
treatment that is ‘beyond the ken' of the average
juror.” Ripes v. Schlechter, 91 N.E. 3d 415,
421 (Ill.App.Ct. 2017) (citations omitted). If, however,
“a plaintiff has not alleged any deviation from
appropriate medical standards, then the claim is not based
upon medical or other healing arts malpractice and is not
subject to the requirements of § 5/2-622.”
Diggins v. Coe, No. 16-cv-242, 2017 WL 1545874, at
*2 (S.D. Ill. Apr. 28, 2017)(citing Fiala v. Bickford Sr.
Living Group, LLC, 43 F.E. 3d 1234, 1244 (Ill.App.Ct.
contend that Plaintiff is claiming intentional infliction of
emotional distress caused by healing art malpractice and,
therefore, Plaintiff's failure to comply with §
2-622 merits dismissal of the claim. (Doc. 30, p. 1).
Specifically, they argue Plaintiff is claiming that
Defendants' treatment of his dental condition so-deviated
from the standard of care to which dentists are held that it
resulted in the intentional infliction of emotional distress.
(Doc. 31, p. 4). They maintain that Plaintiff's claim is
“inextricably linked” to allegations of deficient
dental services, “sounds in medical healing art
malpractice, ” and will require him to put forth
evidence of his dental condition, dental treatment, how
treatments deviated from the standard of care, and how this
deviation caused him extreme emotional damages. Id.
at p. 5. The Court disagrees.
the language of §2-622 is to be interpreted broadly,
“not every act or omission committed by a
physician” constitutes malpractice. Ripes, 91
N.E 3d. at 420. Count 3 is not premised on allegations that
Defendants' course of treatment deviated from the
appropriate standard of care. Rather, Plaintiff essentially
alleges that Defendants' knowing disregard of
Plaintiff's serious dental condition denied him access to
care and caused severe pain and emotional distress.
(See Doc. 1, pp. 7, 8, 9, 10, 16, 18, 20, 24, 26,
28). Plaintiff alleges several times in the Complaint that
when writing letters, grievances, and sick call slips, he was
requesting to be “seen” and “looked
at” by the dentist, not asking for a different method
of treatment. Id. at pp. 15, 16, 17.
medical testimony is not required to prove Plaintiff's
underlying Eight Amendment deliberate indifference to a
serious medical need claim, as the Seventh Circuit Court of
Appeals has held that a “a non-trivial delay in
treating serious pain can be actionable even without expert
medical testimony showing that the delay aggravated the
underlying condition.” Berry v. Peterman, 604
F.3d 435, 441 (7th Cir. 2010) (citing Grieveson v.
Anderson,538 F.3d 763, 779 (7th Cir. 2008); see
alsoWatts v. Monroe, No. 15-cv-0778, 2017 WL
2794286, at *5 (S.D. Ill. June, 28, 2017). Because