United States District Court, S.D. Illinois
MEMORANDUM & ORDER
PHIL GILBERT UNITED STATES DISTRICT JUDGE.
Robert Turner, an inmate who is in the custody of the Federal
Bureau of Prisons (“BOP”) and currently confined
in the Gilmer Federal Correctional Institution
(“FCI-Gilmer”), brings this action against the
United States under the Federal Tort Claims Act, 28 U.S.C.
§§ 1346, 2671-2680. (Doc. 1). Plaintiff claims that
he was forced to submit to a tuberculosis (“TB”)
test while on a federal holdover at White County Jail on July
10, 2017. (Doc. 1, pp. 1-2). The Jail's nurse,
i.e., Nurse Burnett, injected Plaintiff, even after
he informed her that he tested positive for TB and treated
for it in 2010. (Id. at p. 2). When the nurse
injected him, Plaintiff's arm began to spasm, and he has
since suffered from gastroesophageal reflux disease and
nighttime sweats. Plaintiff seeks money damages.
Complaint is now before the Court for review under 28 U.S.C.
§ 1915A, which requires the Court to screen prisoner
Complaints and filter out non-meritorious claims. 28 U.S.C.
§ 1915A(a). Any portion of the Complaint that is legally
frivolous or malicious, fails to state a claim for relief, or
requests money damages from an immune defendant must be
dismissed. 28 U.S.C. § 1915A(b). At this juncture, the
factual allegations are liberally construed. Rodriguez v.
Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir.
on the allegations summarized above, the Court designates a
single count in the pro se Complaint:
Count 1: Defendant, by and through the
negligence or deliberate indifference of Nurse Burnett, is
liable under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. §§ 1346, 2671-80,
for administering Plaintiff an unnecessary and/or harmful TB
test on or around July 10, 2017.
parties and the Court will use this designation in all future
pleadings and orders, unless otherwise directed by a judicial
officer of this Court. Any claim in the Complaint
that is not addressed herein should be
considered dismissed without prejudice as inadequately
FTCA allows civil actions for money damages against the
United States for personal injury or death caused by the
negligent or wrongful act or omission of any Government
employee while acting within the scope of his or her office
or employment. See 28 U.S.C. § 1346(b)(1).
Whether the misconduct giving rise to Plaintiff's claim
involved an employee of the federal government is unclear,
but the Court saves this issue for another day-and a more
complete record. See Lipsey v. United States, 879
F.3d 249, 253-54 (7th Cir. 2018). See also United States
v. Orleans, 425 U.S. 807, 813 (1976); Logue v.
United States, 412 U.S. 521, 5528 (1973). Whether
Plaintiff exhausted all administrative remedies and timely
filed this action is likewise unclear; his Complaint is
silent on both issues. See 28 U.S.C. § 2675(a);
Palay v. United States, 349 F.3d 418, 425 (7th Cir.
2003). Finally, whether Plaintiff states a claim under the
FTCA and Illinois tort law governing medical malpractice
remains to be seen. To do so, he must satisfy the elements of
a medical malpractice claim under Illinois tort law.
Augutis v. United States, 732 F.3d 749, 752 (7th
Cir. 2013) (court considering an FTCA claim looks to the
state tort law of the state where the tortious conduct
occurred). Under applicable state law, i.e., 735
ILCS § 5/2-622, Plaintiff is required to file an
affidavit stating that “there is a reasonable and
meritorious cause” for litigation of the medical
malpractice claim, along with a physician's report in
support of the affidavit. See Young v. United
States, 942 F.3d 349 (7th Cir. 2019). Plaintiff has
filed neither to date. Although his failure to do so is not
dispositive of his claim at this point, he must do so before
the summary judgment phase of the case. Despite the issues
noted herein, the Court will allow this claim to proceed
against the United States.
IS ORDERED that the Complaint (Doc. 1) survives
screening under 28 U.S.C. § 1915A, and COUNT
1 will receive further review against Defendant
UNITED STATES. Pursuant to
Administrative Order No. 244, Defendant need only respond to
the issues stated in this Merits Review Order.
Clerk is DIRECTED to enter the standard qualified protective
order pursuant to the Health Insurance Portability and
IS ORDERED that with regard to COUNT
1, the Clerk of Court is DIRECTED
to complete, on Plaintiff's behalf, a summons for service
of process on Defendant UNITED STATES OF
AMERICA. The Clerk shall issue the completed
summons. Pursuant to Federal Rule of Civil Procedure 4(i),
the Clerk shall (1) personally deliver to or send by
registered or certified mail addressed to the civil-process
clerk at the office of the United States Attorney for the
Southern District of Illinois a copy of the summons, the
Complaint, and this Memorandum and Order; and (2) send by
registered or certified mail to the Attorney General of the
United States at Washington, D.C., a copy of the summons, the
Complaint, and this Memorandum and Order.
FURTHER ORDERED that Plaintiff shall serve
upon the United States Attorney for the Southern District of
Illinois a copy of every pleading or other document submitted
for consideration by this Court. Plaintiff shall include with
the original paper to be filed a certificate stating the date
that a true and correct copy of the document was mailed to
the United States Attorney. Any paper received by a district
judge or a magistrate judge ...