United States District Court, C.D. Illinois
MERIT REVIEW - SECOND AMENDED COMPLAINT
BILLY McDADE UNITED STATES DISTRICT JUDGE
proceeding pro se, files a second amended complaint
alleging negligence, medical malpractice and Eighth Amendment
deliberate indifference at the Prairie Health Center in
Springfield, Illinois. At the time in question, Plaintiff was
a prisoner confined at the Graham Correctional Center
(“Graham”) though he is not currently in custody.
The case is before the Court for a merit review pursuant to
28 U.S.C. § 1915A. In reviewing the Complaint, the Court
accepts the factual allegations as true, liberally construing
them in Plaintiff's favor. Turley v. Rednour,
729 F.3d 645, 649-51 (7th Cir. 2013). However, conclusory
statements and labels are insufficient. Enough facts must be
provided to “state a claim for relief that is plausible
on its face.” Alexander v. United States, 721
F.3d 418, 422 (7th Cir. 2013)(citation and internal quotation
marks omitted). While the pleading standard does not require
“detailed factual allegations, ” it requires
“more than an unadorned,
Wilson v. Ryker, 451 Fed.Appx. 588, 589 (7th Cir.
2011) quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
original and amended complaints were dismissed, in part, for
his failure to plead that Defendant Lambert, an endovascular
and peripheral vascular surgeon practicing at the Prairie
Health Center, was acting under color of law when he treated
Plaintiff. The Court had rejected Plaintiff's assertion
that Dr. Lambert was both a vascular surgeon at the Prairie
Heart Center in Springfield, Illinois and an employee of
Wexford Health Sources, Inc. As Defendant appeared to have
been a physician in private practice, the Court found that
Plaintiff had failed to plead that Defendant was a state
actor during the times alleged. Plaintiff was advised that he
must allege sufficient facts to permit the inference that
Defendant Lambert had “accepted, voluntarily, the
responsibility of acting for the state and assuming the
state's responsibility for incarcerated persons.”
[ECF 22 p 3.] citing Rodriguez v. Plymouth Ambulance
Serv., 577 F.3d 816, 827 (7th Cir. 2009).
has responded in this second amended complaint by alleging
the contradictory claims that Dr. Lambert was both employed
by the State of Illinois and by Wexford Health Sources, Inc.
He claims in fact, without providing support, that Defendant
Lambert was “a state official.” These
contradictory and unsupported allegations fail to correct the
deficiencies identified in the two prior pleadings. Plaintiff
fails to allege how Defendant Lambert could have been
employed by both the State of Illinois and Wexford when he
only saw Plaintiff off-site, at a private health facility. If
the alleged infringement is not “fairly attributable to
the State” there is no action under §1983.
Rendell-Baker v. Kohn, 457 U.S. 830, 838 (1982).
This requirement is an important statutory element because it
sets the line of demarcation between those matters that are
properly federal and those matters that must be left to the
remedies of state tort law.” Rodriguez, 577
F.3d at 822-23 (7th Cir. 2009). Plaintiff again fails to
properly plead this claim and will be given one final
opportunity to amend.
concerns the state law negligence or malpractice claim,
Plaintiff alleges that Defendant performed unsuccessful
procedures on him on July 7, 2015, August 14, 2015, March 30,
2016 and May 19, 2016. While this might be enough to assert a
medical negligence claim, Plaintiff has failed to comply with
the statutory requirements for filing an Illinois medical
negligence claim. See Fleming v. Livingston Cty.,
Ill., No. 08-CV-1174, 2009 WL 596054, at *2 (C.D. Ill.
Mar. 4, 2009) (state, not federal law, is applied to his
medical negligence claim). Illinois law requires that a
medical malpractice complaint contain an affidavit and
written report, known as a “certificate of merit.
” 735 ILCS 5/2-622(a). Failure to file an affidavit and
certificate of merit is cause for dismissal under 735 ILCS
5/2-619. Chapman v. Chandra, No. 06-0651, 2007 WL
1655799, at *2 (S.D. Ill. June 5, 2007). “The United
States Court of Appeals for the Seventh Circuit has
implicitly held that § 2-622 is a substantive law that
should apply to medical malpractice claims brought in federal
courts.” Id. at *3.
Plaintiff has not filed a certificate of merit with his
complaint, he may not proceed on a medical negligence at this
time. Plaintiff will be given 90 days, however, in which to
file an affidavit and certificate of merit as well as an
amended complaint if he wishes to pursue this claim. If he
does not do so within that time, the medical negligence claim
will not proceed.
also asserts a claim against Defendant Michele Stritel whom
he identifies both as the Dialysis Manager at Prairie Heart
Center and an employee of Chardonnay Dialysis of Danville,
Illinois. Plaintiff's previous complaint against Ms.
Stritel was dismissed as he had not asserted that there was a
contractual relationship between Chardonnay Dialysis and
IDOC, or any other mechanism by which Defendant Stritel could
be said to have been acting under color of law. Though he
given leave to replead this claim, Plaintiff still fails to
identify any basis to support that Ms. Stritel's actions
were fairly attributable to the state. He will be given a
final opportunity in this regard.
appears that Plaintiff asserts a state law medical
malpractice claim against Defendant Stritel as well. As
previously noted, however, he may not proceed on this claim
without providing a Rule 622 affidavit and certificate of
merit. Plaintiff will be given a further opportunity to
IS THEREFORE ORDERED:
Plaintiff's second amended complaint is DISMISSED.
Plaintiff will be given a final opportunity, within 90 days,
to file a third amended complaint. Plaintiff is placed on
notice that, if he files a third amended complaint and does
not comply with these instructions, his complaint will be
dismissed for failure to state a claim. This is so, as courts
are not required to allow a party to replead after
“repeated failure to cure deficiencies by amendments
previously allowed.” Stanard v Nygren, 658
F.3d 792, 801 (7th Cir. 2011)(dismissing third amended
complaint for plaintiff's failure “to follow basic
instructions from the court.”). If Plaintiff amends,
the pleading is to be captioned “Third Amended
Complaint” and is to include all viable claims. Failure
to file a third amended complaint will result in dismissal of
this case, without prejudice.
Plaintiff intends to proceed on a state law medical
malpractice claim, he must include this in his third amended
complaint to be filed within 90 days, complying with 735 ILCS
Plaintiff is no longer in custody, he is to file an updated
affidavit and IFP petition within 30 days, ...