Rendon v. Funk, M.D. et al
Filing
138
ORDER & OPINION entered by Judge Joe Billy McDade on 7/6/2011. Magistrate Judge Cudmore's Report and Recommendation of April 5, 2011 131 is ADOPTED in part, and REJECTED in part. Plaintiff's Proposed Motion to File an Additional 2-622 Rep ort with Second Amended Complaint at Law 112 is GRANTED, Defendant Wexford's Motion to Dismiss Count VIII of Plaintiff's Second Amended Complaint 104 is DENIED, Defendant's Argosy Group and Ray's Motion to Dismiss Counts III a nd IV of Plaintiff's Second Amended Complaint 102 is DENIED and Defendant Ray's Motion to Dismiss Count VII of Plaintiff's Second Amended Complaint 102 is GRANTED, and Count VII of Plaintiff's Second Amended Complaint is DISMI SSED. Further, Magistrate Judge Cudmore's Report and Recommendation of May 31, 2011 136 is REJECTED, Defendant Yuan's Motion to Dismiss 128 is GRANTED, and Defendant Yuan is DISMISSED from Count X of Plaintiffs Second Amended Complaint. This matter is REFERRED BACK to Magistrate Judge Cudmore for further pre-trial proceedings consistent with this Order & Opinion. IT IS SO ORDERED.(RK, ilcd)
E-FILED
Thursday, 07 July, 2011 08:12:20 AM
Clerk, U.S. District Court, ILCD
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
PEORIA DIVISION
JANET RENDON, Independent
Administrator of the Estate of CAROL
CZUBERNAT,
)
)
)
)
Plaintiff,
)
)
v.
)
)
WEXFORD HEALTH SOURCES, INC., )
ARGOSY EDUCATION GROUP, INC., )
AMY RAY, Ph.D., ANGELA WRIGHT,
)
KIMERI SHULL, CYNTHIA
)
PETERSON, PATRICK McELROY, HE )
YUAN, M.D., ARTHUR FUNK, M.D., and )
JOHN DOE,
)
)
Defendants.
)
Case No. 10-cv-1410
ORDER & OPINION
Before the Court are three motions to dismiss and one motion for leave to file,
on
which
Magistrate
Judge
Cudmore
has
issued
two
Reports
and
Recommendations. These motions include: 1) Defendants Argosy Education Group,
Inc., and Amy Ray, Ph.D.’s (“Defendants Argosy Group and Ray’s”) Motion to
Dismiss Counts III, IV, and VII of Plaintiff’s Second Amended Complaint (Doc. 102);
2) Defendant Wexford Health Sources, Inc.’s (“Defendant Wexford’s”) Motion to
Dismiss
Count VIII of Plaintiff’s Second Amended Complaint (Doc. 104); 3)
Plaintiff’s Proposed Motion to File an Additional 2-622 Report with Second
Amended Complaint at Law (Doc. 112); and 4) Defendant He Yuan, M.D.’s
(“Defendant Yuan’s”) Motion to Dismiss Count X of Plaintiff’s Second Amended
Complaint (Doc. 128).
On April 5, 2011, Magistrate Judge Cudmore entered a Report and
Recommendation (Doc. 131) recommending that Plaintiff’s Motion to File be
granted, and that both Defendants Argosy Group and Ray’s Motion to Dismiss, and
Defendant Wexford’s Motion to Dismiss be denied. Both Defendant Wexford and
Defendants Argosy and Ray timely filed Objections. (Docs. 133 & 134). On May 31,
2011, Magistrate Judge Cudmore entered his second Report and Recommendation
(Doc. 136), recommending that Defendant Yuan’s Motion to Dismiss be denied.
Defendant Yuan has also timely filed an Objection (Doc. 137).
For the following reasons, Magistrate Judge Cudmore’s R&R of April 5, 2011
(Doc. 131) is ADOPTED in part, and REJECTED in part. It is adopted to the extent
that Plaintiff’s Proposed Motion to File an Additional 2-622 Report with Second
Amended Complaint at Law (Doc. 112) is GRANTED, Defendants Argosy Group
and Ray’s Motion to Dismiss Counts III and IV of Plaintiff’s Second Amended
Complaint (Doc. 102) is DENIED and Defendant Wexford’s Motion to Dismiss
Count VIII of Plaintiff’s Second Amended Complaint (Doc. 104) is DENIED. It is
rejected to the extent that Defendant Ray’s Motion to Dismiss Count VII of
Plaintiff’s Second Amended Complaint is GRANTED, and Count VII of the Second
Amended Complaint is DISMISSED. Further, Magistrate Judge Cudmore’s R&R of
May 31, 2011 (Doc. 136) is REJECTED, Defendant Yuan’s Motion to Dismiss (Doc.
128) is GRANTED, and Defendant Yuan is DISMISSED from Count X of Plaintiff’s
Second Amended Complaint.
2
FACTUAL BACKGROUND1
Plaintiff is the Independent Administrator of the Estate of Carol Czubernat.
(Doc. 98 at 1). On August 1, 2008, Czubernat was arrested and charged with one
count of aggravated driving under the influence of alcohol. (Doc. 98 ¶¶ 18-19). That
same day, Czubernat was transferred to the DuPage County Jail, where she was
denied admission pending an evaluation of her possible suicidal thoughts and
prescription psychiatric medication.
(Doc. 98 ¶ 20).2
Czubernat was sent to
Central DuPage Hospital for her evaluation, where she informed the medical
personnel that she had told a guard at DuPage County Jail that she was suicidal.
(Doc. 98 ¶ 23).
After her evaluation, Czubernat was prescribed Cymbalta and
Trazodone3 and sent back to DuPage County Jail, where she was placed on medical
watch from August 2 until August 5, 2008. (Doc. 98 ¶¶ 24-25).
On November 3, 2008, Czubernat pled guilty to aggravated driving under the
influence, and was sentenced to three years imprisonment within the Illinois
Department of Corrections.
(Doc. 98 ¶ 26).
transferred to Dwight Correctional Center.
On November 21, 2008, she was
(Doc. 98 ¶ 28).
Czubernat was
accompanied by a health information transfer form, which stated that she had been
taking psychotropic medication over the past year, and that she had expressed
suicidal behavior in August of 2008. (Doc. 98 ¶ 29). The form also stated that
Pursuant to the applicable standard of review, the facts alleged in Plaintiff’s
Complaint are assumed to be true for the purpose of ruling on the instant motions
to dismiss. See In re marchFIRST Inc., 589 F.3d 901, 904 (7th Cir. 2009) (citing
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008)).
2 Prior to her arrest, Plaintiff had been taking the medication Klonopin and
Cymbalta. (Doc. 98 ¶ 22).
3 Czubernat’s prescription for Trazodone was discontinued on November 10, 2008.
(Doc. 98 ¶ 27).
1
3
Czubernat was currently taking 60 milligrams of Cymbalta (Doc. 98 ¶ 29), which is
an anti-depressant.
When she arrived at Dwight Correctional Center, Defendant Amy Ray
performed a mental health evaluation of Czubernat. (Doc. 98 ¶ 30). During this
evaluation, Czubernat told Ray that she had received prior treatment for mental
health and emotional issues, such as depression and anxiety, over the past 18 years,
including within the past year. (Doc. 98 ¶ 30). She told Ray that she had been
diagnosed with depression and anxiety, and that some doctors had informed her
that she may be bipolar. (Doc. 98 ¶ 31). In addition, she informed Ray that she was
on medication and that she had previously attempted suicide when she was
fourteen.
(Doc. 98 ¶ 32).
Ray did not question Czubernat about her suicidal
behavior the previous August, but provided a provisional diagnosis of alcohol
dependence, cannabis abuse, and depression.
(Doc. 98 ¶¶ 33-34).
Ray gave
Czubernat a “routine placement,” but referred her to drug TX school and work
assignment and informed her that mental health services were available to her at
any time. (Doc. 98 ¶ 35).
From November 21, 2008 until February 19, 2009, Czubernat did not
receive any medication or mental health treatment from anyone at Dwight
Correctional Center. (Doc. 98 ¶ 36). On February 12, 2009, Czubernat completed a
medical referral request form to the health care unit requesting to see a
psychiatrist; she wrote: “Please help me now!
I cannot wait a month for an
appointment! I need to see him immediately to be put back on my anti-depressant,
4
Trazadone. I am in a crisis. I can’t handle it back here.” (Doc. 98 ¶ 40).4 On
February 13, 2009, an unknown psychologist visited Czubernat’s cell and told her
that a psychiatrist would come visit her the following day, however he did not
render her any treatment or prescribe her any medication. (Doc. 98 ¶ 42). On
February 17, 2009, Czubernat completed another medical referral request form to
the health care unit, in which she wrote: “URGENT!!! EMERGENCY!! I need to
see someone! I am losing my mind and need medication. I am having constant
panic attacks! . . . I am losing it in here and need to see a doctor . . . I do not want to
go on suicide watch. I just want my meds!” (Doc. 98 ¶ 43 (emphasis in original)).
The health care unit received both of Czubernat’s requests on February 18,
2009. (Doc. 98 ¶¶ 41, 44). That same day, Ray went to Czubernat’s cell. (Doc. 98 ¶
45). Although Czubernat informed Ray that she was anxious and having panic
attacks, Ray informed her that she would not be moved up on the waiting list to see
the psychiatrist. (Doc. 98 ¶ 45-46). On February 19, Ray recommended that she try
relaxation techniques to manage her anxiety, and stated in her records that
Czubernat denied suicidal and homicidal ideation and guaranteed her safety. (Doc.
98 ¶47). However, an unknown agent or employee of Defendant Wexford Health
Sources also prescribed Cymbalta for Czubernat on the 19th, without first
examining her. (Doc. 98 ¶ 48).
On February 20, 2009, Czubernat sent a letter to the health care unit
addressed to Defendant He Yuan, in which she asked the doctor to come see her as
soon as possible because she was experience panic attacks and depression and
4
The health care unit received this request on February 18, 2009. (Doc. 98 ¶ 41).
5
needed to be “put back on my psych meds.” (Doc. 98 ¶ 49). The letter was returned
to Czubernat with the statement “Your meds were bridged on February 19, 2009.
You will be scheduled with a doctor for a follow-up very soon.” (Doc. 98 ¶ 50). Six
days later, on February 25, 2009, Czubernat wrote another letter to Dr. Yuan
stating that she still had not received her medication, and she wrote a follow-up
letter to the health care unit the next day. (Doc. 98 ¶¶ 51-52). On February 26,
2009, the health care unit gave Cuzbernat her Cymbalta. (Doc. 98 ¶ 53).
The same day she received her Cymbalta, Czubernat wrote another follow-up
letter to Dr. Yuan in which she stated that she had received her medication, but
that she would need additional medication for anxiety and panic attacks. (Doc. 98 ¶
54).
She wrote Yuan that she was still experiencing panic attacks and heart
palpitations and asked that he come to see her to discuss her situation. (Doc. 98 ¶
54). She stated, in part: “I just found out I might have to stay here another two
months. I won’t make it! I am experiencing panic attacks EVERY DAY – SEVERAL
TIMES A DAY PLEASE HELP ME.” (Doc. 98 ¶ 54 (emphasis in original)). On
February 27, 2009, she wrote another letter addressed to Dr. Yuan in which she
again asked him to come see her to come see her. She stated that her situation was
“very urgent” and “unbearable” and noted that the Cymbalta was not enough to
help her. (Doc. 98 ¶ 55). On the morning of February 28, 2009, Czubernat was
discovered to have committed suicide the night before. (Doc. 98 ¶ 72). None of the
letters sent by Czubernat of February 25, 26, or 27th were processed; they were
discovered in the mental health mailbox until March 2, 2009. (Doc. 98 ¶ 56).
6
PROCEDURAL HISTORY
I.
Proceedings in the United States District Court for the
Northern District of Illinois
On March 10, 2010, Plaintiff filed her initial eleven-count Complaint in the
United States District Court for the Northern District of Illinois, bringing
constitutional and state law claims against various Defendants for damages arising
out of Czubernat’s suicide. (Doc. 1). Because several of her claims were based upon
professional negligence, Plaintiff attached to her Complaint a Certification for an
Action of Medical Malpractice Pursuant to 735 ILCS 5/2-622, in which a licensed
physician specializing in psychiatry opined, to a reasonable degree of medical
certainty, that a reasonable and meritorious basis existed for the filing of a cause of
action against Wexford Health Sources, Inc., Amy Ray, Ph.D., and Arthur Funk,
M.D. (Doc. 1-1). Plaintiff also attached an Attorney Affidavit pursuant to 735 ILCS
5/2-622 stating that he had consulted and reviewed the facts of the case with a
health care professional whom he believed to be qualified and knowledgeable
regarding the relevant issues, and that such professional had determined that there
was a reasonable meritorious cause for filing this action. (Doc. 1-2).
On April 6, 2010, Defendant Wexford filed a Motion to Dismiss, seeking to
dismiss one of Plaintiff’s four claims against it. (Doc. 15).5 In response, Plaintiff
filed her First Amended Complaint.
(Doc. 44).
On April 26, 2010 Defendants
Argosy Group and Ray filed a Motion to Dismiss arguing, in part, that the medical
Defendant Wexford moved to dismiss Plaintiff’s Monell claim against it, which was
Count X of Plaintiff’s original Complaint. Although Plaintiff added allegations to
this count in its Amended and Second Amended Complaint, it is this same claim
that Defendant Wexford has once again moved to dismiss in its instant Motion.
(Doc. 104).
5
7
report Plaintiff had attached to her Complaint failed to comply with 735 ILCS 5/2622, as it pertained to them, because the report was not authored by someone in the
same profession and holding the same license as Defendant Ray, a clinical
psychologist. (Doc. 39). Plaintiff filed a Response in which she argued that her
medical report did meet all criteria, and, in the alternative, sought leave to file an
additional report licensed by a psychologist, which she attached thereto. (Doc. 51 at
5, Exh. 3).
On May 24, 2010, Defendant Wexford filed a Motion to Dismiss Count VIII of
Plaintiff’s First Amended Complaint. (Doc. 56).
On May 26, 2010, Defendants
McElroy, Peterson, and Shull filed a Motion to Transfer Venue (Doc. 53). On July
15, Plaintiff filed a Motion for Leave to File a Second Amended Complaint, in order
to add claims for individual liability against Defendants Ray, Funk, and John Doe
pursuant to 42 U.S.C. § 1983. (Doc. 79). Accordingly, pending before the Northern
District of Illinois were: 1) Defendants Argosy Group and Ray’s Motion to Dismiss
(Doc. 39); 2) Defendant Wexford’s Motion to Dismiss (Doc. 56); 3) Plaintiff’s Motion
for Leave to File a Second Amended Complaint (Doc. 79); and 4) Defendants
McElroy, Peterson, and Shull’s Motion to Transfer Venue (Doc. 53). On December
10, 2010 United States District Judge Manning of the Northern District of Illinois
granted Defendants’ McElroy, Peterson, and Shull’s Motion to Transfer Venue, and
transferred the case to this Court. (Docs. 94 & 95). Judge Manning deferred ruling
on any of the other pending motions.
8
II.
Proceedings in this Court
This Court received this case from the Northern District on December 16,
2010. (Doc. 97). On December 28, 2010, Magistrate Judge Cudmore entered an
Order granting Plaintiff’s Motion to File a Second Amended Complaint, and
denying all of Defendants’ Motions to Dismiss without prejudice. (Text Order of
12/28/2010). Accordingly, Plaintiff’s Second Amended Complaint came before this
Court. (Doc. 98).
Plaintiff’s Second Amended Complaint seeks relief from ten defendants upon
ten causes of actions.
As relevant to the motions currently pending before the
Court, the Complaint alleges the following causes of action: 1) a claim for wrongful
death/professional negligence against Defendants Argosy Education Group, Inc. and
Amy Ray6 (Count III); 2) a survival action for professional negligence against
Defendants Argosy Group and Ray (Count IV); 3) a claim against Defendant Ray in
her individual capacity pursuant to 42 U.S.C. § 1983 (Count VII); 4) a Monell claim
against Defendant Wexford Health Sources, Inc.7 pursuant to 42 U.S.C. § 1983
Defendant Argosy Education Group, Inc. is a college university which had
contracted with the State of Illinois and Dwight Correctional Center to provide a
trained licensed clinical psychologist and other employees to Dwight Correctional
Center for the screening, treating, and evaluating of its inmates. Defendant Ray is
a licensed clinical psychologist who was employed by Argosy Education Group and
worked at Dwight Correctional Center within the scope of her employment. (Doc.
98 ¶¶ 10-12).
7 Defendant Wexford Health Source, Inc. is a corporation that had contracted to
perform mental health care at Dwight Correctional Center. (Doc. 98 ¶¶ 6-7).
Defendant Yuan and Defendant Arthur Funk (who does not have a current motion
pending before the Court) were employees of Defendant Wexford, and their work at
Dwight Correctional Center was within the scope of such employment. (Doc. 98 ¶¶
8-9).
6
9
(Count VIII); and 5) a claim against Defendants He Yuan, Arthur Funk,8 and John
Doe in their individual capacities pursuant to 42 U.S.C. § 1983 (Count X). Plaintiff
attached her original two certifications to her Second Amended Complaint pursuant
to 735 ILCS 7/2-622, however she did not attach the medical report of a licensed
psychologist, which she had sought leave to file in response to Defendants Argosy
Group and Ray’s original motion to dismiss.
Accordingly, on January 18, 2011, Defendants Argosy Group and Ray filed
their Motion to Dismiss Counts III, IV, and VII of Plaintiff’s Second Amended
Complaint (Doc. 102), in which they argue that: 1) Plaintiff’s state law claims for
professional negligence should be dismissed because Plaintiff failed to comply with
735 ILCS 5/2-622; and 2) Plaintiff’s constitutional claim against Defendant Ray
should be dismissed for failure to state a claim. Plaintiff filed both a Response to
Defendants Argosy Group and Ray’s Motion to Dismiss (Doc. 126), and a Proposed
Motion to File an Additional 2-622 Report with Second Amended Complaint at Law
(Doc. 112), in which she seeks leave to file the medical report she previously
presented to the Northern District. Defendant Wexford also renewed its Motion to
Dismiss Count VIII of Plaintiff’s Second Amended Complaint on January 18
(Doc.104).
On April 5, 2011, after these three matters were fully briefed, Magistrate
Judge Cudmore entered a Report and Recommendation, recommending that
Plaintiff’s Motion to File be granted, and both Defendants Argosy Group and Ray’s,
and Defendant Wexford’s Motions to Dismiss be denied. Both Defendants Argosy
Although Defendant Yuan has filed a Motion to Dismiss Count X of Plaintiff’s
Second Amended Complaint (Doc. 128), Defendant Funk has not done so.
8
10
Group and Ray and Defendant Wexford have filed Objections to Magistrate Judge
Cudmore’s April 5, 2011 R&R pursuant to Federal Rule of Civil Procedure 72(b)(2).
(Docs. 133 & 134).
On March 14, 2011, Defendant Yuan (who was first named as a Defendant in
Plaintiff’s Second Amended Complaint), filed his Motion to Dismiss Count X of
Plaintiff’s Second Amended Complaint (Doc. 128), to which Plaintiff filed her
Response on April 14, 2011 (Doc. 132).
On May 31, 2011, Magistrate Judge
Cudmore entered his second Report and Recommendation, recommending that
Defendant Yuan’s Motion to Dismiss be denied. (Doc. 136). Defendant Yuan filed
an Objection to the May 31, 2011 R&R on June 14, 2011. (Doc. 137).
DISCUSSION
“In ruling on Rule 12(b)(6) motions, the court must treat all well-pleaded
allegations as true and draw all inferences in favor of the non-moving party.” In re
marchFIRST Inc., 589 F.3d 901, 904 (7th Cir. 2009) (citing Tamayo v. Blagojevich,
526 F.3d 1074, 1081 (7th Cir.2008)). To survive a motion to dismiss under 12(b)(6),
a plaintiff’s complaint must “plead some facts that suggest a right to relief that is
beyond the ‘speculative level.’” EEOC v. Concentra Health Svcs., Inc., 496 F.3d 773,
776-77 (7th Cir. 2007) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 560-63
(2007)). Though detailed factual allegations are not needed, a “formulaic recitation
of a cause of action’s elements will not do.”
Twombly, 550 U.S. at 547.
“The
complaint must contain ‘enough facts to state a claim to relief that is plausible on
its face.’” Bissessur v. Indiana University Bd. of Trustees, 581 F.3d 599, 602 (7th
Cir. 2009) (quoting Twombly, 550 U.S. at 557; Tamayo, 526 F.3d at 1084).
11
A district court reviews de novo any portion of a Magistrate Judge's R&R to
which a “specific written objection has been made.” FED. R. CIV. P. 72(b)(3). “The
district judge may accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with instructions.”
Id.
I.
Defendants Argosy and Ray’s Motion to Dismiss Counts III, IV, and
VII of Plaintiff’s Second Amended Complaint
Plaintiff’s Second Amended Complaint alleges three causes of actions against
Defendants Argosy Group and Ray. In Counts III and IV, Plaintiff alleges state law
claims of professional negligence against Defendants Argosy Group and Ray.9 In
Count VII, Plaintiff alleges an Eighth Amendment claim against Defendant Ray in
her individual capacity, pursuant to 42 U.S.C. § 1983. Defendants Argosy Group
and Ray have moved to dismiss all three of these claims. With regards to Counts III
and IV, Defendants Argosy Group and Ray contend that Plaintiff has failed to
comply with Illinois’ procedural rules for bringing a claim of professional negligence;
with regards to Count VII, they argue that Plaintiff has failed to adequately plead a
cause of action against Defendant Ray.
A. Counts III and IV
Under the Illinois Code of Civil Procedure, in a medical negligence case
where a plaintiff seeks to recover damages from injuries sustained due to medical
malpractice, the plaintiff must attach a report from a qualified health professional
According to Defendants Argosy Group and Ray, Plaintiff’s claims against Argosy
Group are only based upon a theory of respondeat superior as Argosy Group was the
employer or principal of Defendant Ray. (Doc. 102 at 5). In her Response (Doc.
126), Plaintiff does not argue that such assertion is inaccurate.
9
12
stating that the professional has reviewed the medical records and believes that the
plaintiff has a reasonable and meritorious cause to file the action. 735 ILCS 5/2622(a)(1);10 Hill v. C.R. Bard, Inc., 582 F.Supp.2d 1041, 1046 (C.D.Ill. 2008). The
purpose of § 2-622 is to reduce the number of frivolous lawsuits that are filed and to
eliminate such actions at an early stage before the expenses of litigation have
mounted. Garrison v. Choh, 719 N.E.2d 237, 243 (Ill. App. Ct. 1999). As § 2-622 is
a procedural hurdle, Illinois courts have liberally construed it so that “plaintiffs do
not lose substantive rights because they have not strictly complied with the
statute.” Hill, 582 F.Supp.2d at 1046 (citing Hobbs v. Lorenz, 786 N.E.2d 260, 263
(Ill. App. Ct. 2003)). While never explicitly stated, there is clear language from the
Seventh Circuit that § 2-622 applies to medical malpractice claims filed in federal
court in Illinois. Id. (citing Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000).
One of the requirements of § 2-622 is that the author of the qualified health
professional report must be “licensed in the same profession, with the same class of
license, as the defendant.”
§ 2-622(a)(1).
Here, Plaintiff attached a health
professional report authored by a psychiatrist to her Second Amended Complaint
(Doc. 98 Exh. 1); however Defendant Ray is a psychologist (Doc. 98 ¶ 12).
Accordingly, Defendants Argosy Group and Ray argue that Plaintiff’s § 2-622 report
is inadequate and the professional negligence claims against her (and therefore
Argosy Group) must be dismissed. (Doc. 102 at 5).
The Court notes that according to the Illinois Supreme Court, due to several of
that court’s recent decisions concerning the constitutionality and effect of acts
amending § 2-622, the section currently “reads as it did when amended in 1989 by
Public Act 86-646.” Cookson v. Price, 941 N.E.2d 162, 164 (Ill. 2010). Accordingly,
the Court must look to that version of § 2-622 for purposes of determining the
instant motions.
10
13
In response, Plaintiff does not argue that the current § 2-622 report is
sufficient, but rather seeks leave to file an additional § 2-622 report (“Additional
Report”) with regards to Defendant Ray, which has been authored by a licensed
psychologist. (Doc. 126 at 4-5; Doc. 112).11 Plaintiff filed a motion to this effect
(Doc. 112), which Magistrate Judge Cudmore recommended the Court grant (Doc.
131 at 9-12).
Because Defendants Argosy Group and Ray have objected to the
Magistrate’s recommendation (Doc. 134), and the outcome of Defendant Argosy
Group and Ray’s Motion to Dismiss Counts III and IV hinges upon a determination
of whether the Additional Report may be filed, the Court must address this issue
prior to determining the merits of the motion to dismiss.
B. Plaintiff’s Motion to File an Additional 2-622 Report with Second
Amended Complaint at Law
Defendants Argosy Group and Ray oppose Plaintiff’s Motion to File for two
reasons. First, they claim that the proposed Additional Report is facially defective
pursuant to § 2-622 because 1) it is labeled as an “affidavit” rather than a “healthcare professional report;” 2) it does not identify its author, nor is it signed by its
author or notarized; and 3) it states that the affiant finds to a reasonable degree of
medical certainty that a reasonable and meritorious basis exists for the filing of a
cause of action against Defendant Ray, rather than to a reasonable degree of
psychological certainty. (Doc. 120 at 1-2). Second, Defendants claim that the filing
Plaintiff previously sought leave to file this Additional Report on May 19, 2010
(Doc. 51-3) in response to Defendants Argosy Group and Ray’s Motion to Dismiss
filed in the Northern District of Illinois (Doc. 39). However, as previously
mentioned, the Northern District transferred the case to this Court prior to ruling
on the motions (Doc. 95), and Plaintiff subsequently “inadvertently failed to attach”
the Additional Report to her Second Amended Complaint. (Doc. 112 at 1).
11
14
of the Additional Report would prejudice them and has not been filed in a timely
fashion. (Doc. 120 at 3-4).
Magistrate Judge Cudmore did not find the Defendants’ objections to be
convincing. With regards to the facial defects, the Magistrate found that 1) the fact
that the Additional Report is labeled as an “affidavit” is irrelevant because it is
clear that it is and is intended to be a “qualified health care profession report”
pursuant to § 2-622; 2) Illinois law does not require the report to identify the author
or be notarized; and 3) the fact that it states that the affiant believes there is a
meritorious cause of action to a degree of medical certainty rather than
psychological certainty is merely “nitpicking” and does not serve as an adequate
basis to deny Plaintiff of her substantive rights. (Doc. 131 at 11-12).
This Court agrees with the Magistrate. With respect to Defendants Argosy
Group and Ray’s arguments concerning the label of the Additional Report and the
precise language of the type of certainty upon which the expert determined there to
be a meritorious basis for filing suit, the Court finds that such small errors do not
justify depriving Plaintiff of her substantive rights.
See Cutler v. Northwest
Suburban Community Hosp., Inc., 939 N.E.2d 1032, 1042 (IIl. App. Ct. 2010)
(“Section 2-622 should not be mechanically applied to deprive a plaintiff of his
substantive rights.”); Apa v. Rotman, 680 N.E.2d 801, 804 (Ill. App. Ct. 1997) (“The
technical requirements of the statute should not interfere with the purpose of the
statute, and the absence of strict technical compliance is one of form only and not
one of substance.”).
Further, with respect to Defendants’ argument that the
Additional Report is not signed or notarized, the Court finds that the currently
15
controlling version of § 2-622 does not require such signature. See Cookson v. Price,
941 N.E.2d 162, 164 (Ill. 2010).
In addition to their argument regarding the facial defects of the proposed
Additional Report, Defendants Argosy Group and Ray also object to its admission
because they claim that it is untimely and they will be prejudiced thereby. (Doc.
120 at 2-4). Again, Magistrate Judge Cudmore disagreed with Defendants. The
Magistrate found that because Plaintiff had sought leave to file the Additional
Report on May 19, 2010 (in response to Defendants’ first motion to dismiss), they
have been on notice of the existence of the Additional Report since that time, and
accordingly would not be prejudiced. (Doc. 131 at 10-11). Moreover, the Magistrate
found that Plaintiff was not seeking leave to file an original qualified health
professional report, but rather to cure the deficiencies in her original one, and
therefore there was no deadline by which she had to file. (Doc. 131 at 10).
The Court also agrees with this portion of the Magistrate’s assessment.
Section 2-622(a)(2) does require a plaintiff to file a qualified health care professional
report within 90 days of the filing of a complaint, if one could not have previously
been filed due to a pending statute of limitations, however that is not the situation
here. In this case, Plaintiff filed a qualified health care professional report with her
original and Second Amended Complaint, which attempted to provide the basis for a
cause of action against Defendant Ray. (Doc. 98 Exh. 1). However, as Defendants
Argosy Group and Ray pointed out in their Motion to Dismiss, such report was
inadequate as to Defendant Ray because it was written by a psychiatrist rather
than a psychologist. Accordingly, Plaintiff seeks to cure this deficiency by filing the
16
Additional Report. Illinois courts have held that “amendments to pleadings are to
be liberally allowed to enable medical malpractice actions to be decided on their
merits rather than on procedural technicalities . . . . The goal is the furtherance of
the ends of justice.” Apa, 680 N.E.2d at 804. Moreover, as the Magistrate noted,
Defendants were aware of this Additional Report since May of 2010, as Plaintiff
sought leave to file it from the Northern District, (Doc. 51), and therefore should not
be surprised or prejudiced by Plaintiff’s request to file it now. Therefore, the Court
does not find Plaintiff’s Motion to be untimely, nor does it find that Defendants
Argosy Group and Ray will be prejudiced by the admission of the Additional Report.
For these reasons, the Court ADOPTS the Magistrate’s R&R of April 5, 2011,
with respect to Plaintiff’s Motion to File (Doc. 112), and GRANTS the Motion.
Accordingly, because Defendants Argosy Group and Ray’s only argument with
respect to dismissing Counts III and IV of the Second Amended Complaint is based
upon the lack of such report, the Court also ADOPTS the Magistrate’s R&R of April
5, 2011 with respect to the portion denying Defendants’ Argosy Group and Ray’s
Motion to Dismiss those counts of the Second Amended Complaint.
C. Count VII
In Count VII of her Second Amended Complaint, Plaintiff alleges an Eighth
Amendment claim against Defendant Ray in her individual capacity pursuant to 42
U.S.C. § 1983. (Doc. 98 at 25). “A successful § 1983 claim based on a violation of
the Eighth Amendment requires [Plaintiff] to prove two things: 1) that the harm to
[Czubernat] was objectively, sufficiently serious and a substantial risk to [her]
health or safety, and (2) that [Defendant Ray] was deliberately indifferent to
17
[Czubernat’s] health and safety.” Matos v. O’Sullivan, 335 F.3d 553, 556 (7th Cir.
2003).12 To establish that Ray was deliberately indifferent to Czubernat’s health
and safety, Plaintiff must show both that Ray subjectively knew that Czubernat
was at substantial risk of committing suicide, and that she intentionally
disregarded that risk. See id. at 557.
Count VII of Plaintiff’s Second Amended Complaint alleges that “the conduct
of . . . Amy Ray . . . on November 21, 2008 and February 18, 2009, was intentional
and carried out with willful and deliberate indifference to the health and welfare of
. . . Czubernat.” (Doc. 98 ¶ 100). Plaintiff seeks to support the November 21, 2008
allegation with the following facts: 1) on November 21, 2008 Czubernat was
transferred to the Dwight Correctional Center, along with a health information
transfer form stating that she had been taking psychotropic medication over the
past year and that she expressed suicidal behavior in August 2008 (Doc. 98 ¶¶ 2829); 2) on that date, Defendant Ray performed a mental health evaluation of
Czubernat in which Czubernat informed her that she had received prior mental
health treatment for mental and emotional health issues over the past 18 years,
including within the past year; that she had been diagnosed with depression,
anxiety, and potentially bi-polar disorder; that she was currently taking
psychotropic drugs for these issues; that she had other family members who had
been hospitalized for mental and emotional health issues; and that she had
previously attempted suicide (Doc. 98 ¶¶ 30-32); 3) Defendant Ray failed to ask
Czubernat about her suicidal behavior in August of 2008, and provided her a
The first prong is not at issue here as because suicide is an objectively serious
harm as a matter of law. See Matos, 335 F.3d at 556.
12
18
provisional diagnosis of alcohol dependence, cannabis abuse, and depressive
disorder (Doc. 98 ¶¶ 33-34); and 4) Czubernat did not receive any type of medication
or mental health treatment from Defendant Ray or any other doctor from November
21, 2008 until February 19, 2009, despite several letters requesting to see a doctor
and receive medication (Doc. 98 ¶¶ 36-37, 40, & 43).13
With respect to the February 19, 2009 allegation of deliberate indifference,
Plaintiff provides the following factual background:
1) On February 18, 2009
Defendant Ray went to Czubernat’s cell, and Czubernat informed her that she was
“anxious, does not enjoy living in segregation, and his having panic attacks” and
that she met with a mental health counselor the previous Friday who told her she
would have her medications by Saturday (Doc. 98 ¶ 45); 2) Defendant Ray informed
Czubernat that she would not be moved upon the waiting list to see a psychiatrist
(Doc. 98 ¶ 46); 3) on February 19, 2009, Defendant Ray recommended that
Czubernat try relaxation techniques to manage her anxiety, to which Czubernat
responded “You suck” and walked away from her cell door (Doc. 98 ¶ 47); and 4)
Defendant Ray stated in her records that Czubernat denied suicidal and homicidal
ideation and guaranteed her safety (Doc. 98 ¶ 47).14
As it relates to Plaintiff’s Eighth Amendment claim against Ray, the Court finds
it relevant that Plaintiff also pleads that: 1) on November 21, 2008, Ray informed
Czubernat that mental health services were available to her at any time (Doc. 98 ¶
35); and 2) Czubernat’s only alleged requests to be seen by a mental health
professional were received on February 18, 2009, and Ray went to visit her that
same day (Doc. 98 ¶¶ 41, 44, & 45).
14 Again, the Court also finds it relevant that Plaintiff has pled that in her February
17, 2009 letter to the health care unit, Czubernat stated “I do no want to go on
suicide watch. I just want my meds!” (Doc. 98 ¶ 43).
13
19
Defendant Ray contends that Plaintiff fails to sufficiently allege that she
intentionally disregarded the risk posed to Czubernat. (Doc. 102 at 6-8). According
to Ray, Plaintiff’s allegations “might give rise to a disagreement with the manner in
which Dr. Ray allegedly treated Czubernat, but simply disagreeing with the manner
of treatment does not give rise to an Eighth Amendment claim pursuant to 42
U.S.C. § 1983.”
(Doc. 102 at 8).
Magistrate Judge Cudmore disagreed with
Defendant Ray, and found that Plaintiff stated a plausible claim that she “failed to
act despite her knowledge that if Carol Czubernat’s mental health issues were not
treated, there was a substantial risk that she would harm herself,” which in turn
allowed for the reasonable inference that Ray was deliberately indifferent. (Doc.
131 at 14)
The Court does not agree with the Magistrate’s assessment because it finds
that Plaintiff has failed to adequately plead that Defendant Ray had subjective
knowledge that Czubernat was at risk of committing suicide. While Plaintiff does
allege that Czubernat informed Ray of a history of suicidal behavior, she does not
allege any facts which would support a plausible inference that Ray was
subjectively aware that Czubernat was suicidal at the time she was incarcerated at
Dwight.
According to Plaintiff’s allegations, after evaluating Czubernat, Ray
informed her that mental health services were available at any time, (Doc. 98 ¶ 35)
and visited Czubernat the first day that the health care unit received her requests
for assistance.
(Doc. 98 ¶¶ 41, 44 & 45).
Notably, in Plaintiff’s request for
assistance, she stated that she did not want to go on suicide watch, and Ray wrote
in her notes after meeting with Czubernat that she denied suicidal ideations and
20
guaranteed her own safety. (Doc. 98 ¶¶ 43 & 47). Based upon these allegations, the
Court does not find it plausible that Ray was subjectively aware that Czubernat
was at risk to harm herself, as Czubernat expressly told her to the contrary.
Because there is no plausible inference that Ray was aware of a substantial risk to
Czubernat’s safety, there can also be no inference that Ray was deliberately
indifferent to such risk. See Matos, 335 F.3d at 556.
Therefore, the Court REJECTS the portion of Magistrate Judge Cudmore’s
April 5, 2011 R&R denying Defendant Ray’s Motion to Dismiss Count VII and
GRANTS Defendant Ray’s Motion to Dismiss Count VII of Plaintiff’s Second
Amended Complaint.
II.
Defendant Wexford’s Motion to Dismiss Count VIII of Plaintiff’s
Second Amended Complaint
In Count VIII of her Second Amended Complaint, Plaintiff alleges a Monell
claim against Defendant Wexford pursuant to 42 U.S.C. § 1983. (Doc. 98 at 26).15
Defendant Wexford is a private corporation which was allegedly contracted to
provide medical, mental health and dental care to inmates at Dwight Correctional
Center, and employed Defendant Drs. Yuan and Funk. (Doc. 98 ¶¶ 6-9).
A private
corporation acting under the color of state law is treated as a municipal entity for
purposes of § 1983. Jackson v. Illinois Medi-Car, Inc., 300 F.3d 760, 766 n.6 (7th
Cir. 2002).
As such, Defendant Wexford can not be liable upon a theory of
respondeat superior. Monell v. Dep’t of Social Svcs. of City of New York, 436 U.S.
Plaintiff brought this claim in her original Complaint under Count X (Doc. 1),
however after Defendant Wexford filed its first Motion to Dismiss (Doc. 15),
Plaintiff amended her complaint to allege additional facts against Wexford and
moved the claim to Count VIII.
15
21
658, 691 (1978). However, Defendant Wexford may be liable under § 1983 if an
official policy or custom of the corporation resulted in the alleged constitutional
deprivation. Monell, 436 U.S. at 690-91; Gayton v. McCoy, 593 F.3d 610, 622 (7th
Cir. 2010). Accordingly, to state a viable § 1983 claim against Defendant Wexford,
Plaintiff must allege that her injury was caused by: 1) an express policy; 2) a
widespread practice constituting a ‘custom or usage’; or 3) the act of a person with
final policymaking authority at Wexford. Houskins v. Sheahan, 549 F.3d 480, 493
(7th Cir. 2008).
Here, Plaintiff alleges that Defendant Wexford “had a custom and practice of
failing to process medical requests, failure to train employees to treat inmates, and
failure to properly staff jails and prisons throughout the United States and at the
Dwight Correctional facility.” (Doc. 98 ¶ 110). To support this allegation, Plaintiff
pleads facts regarding problems Defendant Wexford has encountered at other
prison facilities in Illinois, New Mexico, Washington, and Pennsylvania over the
past decade. (Doc. 98 ¶¶ 104-109). Plaintiff also alleges facts directly concerning
the Dwight Correctional Center.
She alleges that on January 26, 2010, a
commission from the John Howard Association visited the Dwight Correctional
Center and determined that it had significant problems with medical intake,
concluding that “inmates in the reception and classification center are waiting for
weeks or months to see a psychiatrist and are deprived of needed psychotropic
medications during that time.” (Doc. 98 ¶ 103). The group determined that the long
delays in psychiatric treatment were unacceptable and posed a threat to the health
and safety of inmates. (Doc. 98 ¶ 103). Plaintiff also alleges that the warden of
22
Dwight and other senior officials acknowledged “troublesome delays in providing
psychiatric treatment and psychotropic medication.” (Doc. 98 ¶ 103).
Defendant Wexford argues that the facts pled by Plaintiff do not support her
allegation that a custom or practice of Wexford caused a constitutional deprivation
because the conclusions of the John Howard Association and Dwight officials were
made eleven months after Czubernat committed suicide.
(Doc. 104 at 5).
In
addition, Wexford maintains that even if such a policy was properly pled, Plaintiff
has failed to plead that such policy or custom was the “moving force” behind
Plaintiff’s injury. (Doc. 104 at 7). Magistrate Judge Cudmore disagreed, and found
that Plaintiff’s allegations were sufficient to raise a plausible inference that
“Wexford, with deliberate indifference, had no policy in place to ensure that
requests for serious and urgent psychiatric needs were timely processed,” that
Wexford “had a practice of not training its employees to recognize serious
psychiatric needs or to properly respond to those needs,” and that these failings
“were plausibly the proximate cause of Czubernat’s death.” (Doc. 131 at 16-17).16
This Court agrees with Magistrate Judge Cudmore’s conclusion that a
plausible claim has been stated. Plaintiff has alleged a widespread custom or policy
of Defendant Wexford.
Moreover, Plaintiff has supported her allegation with
enough facts to allow a plausible inference that her claim may have merit.
Although the facts regarding the findings of the John Howard Association and
Magistrate Judge Cudmore did not rely on the allegations concerning the findings
of the John Howard Association and Dwight officials in 2010. (Doc. 131 at 17 n.3).
While the Court agrees with Magistrate Judge Cudmore’s conclusion that a
plausible claim has been stated, it believes that these allegations are necessary to
support Plaintiff’s claim.
16
23
Dwight officials arose after the date of Czubernat’s suicide, it is plausible that the
problems discovered at that time also existed eleven months prior, especially in
light of Plaintiff’s allegations regarding the events preceding Czubernat’s death. In
addition, the allegation that these policies (or lack thereof) were the cause of
Czubernat’s death is supported by the allegations concerning her lack of psychiatric
treatment and attention.17 Therefore, the Court ADOPTS the portion of Magistrate
Judge Cudmore’s April 5, 2011 R&R denying Defendant Wexford’s Motion to
Dismiss and DENIES Defendant Wexford’s Motion to Dismiss Count VIII of
Plaintiff’s Second Amended Complaint.
III.
Defendant Yuan’s Motion to Dismiss Count X of Plaintiff’s Second
Amended Complaint
In Count X of her Second Amended Complaint, Plaintiff alleges an Eighth
Amendment claim against Defendants He Yuan, Arthur Funk and John Doe
pursuant to 42 U.S.C. § 1983.18 (Doc. 98 at 32). Only Defendant Yuan has filed a
motion to dismiss this Count.
Plaintiff has alleged that the Warden of Dwight Correctional Center and other
ranking prison officials acknowledged that there “were troublesome delays in
providing psychiatric treatment and psychotropic medication” to inmates. (Doc. 98
¶ 103). Defendant Wexford’s alleged custom or lack of policy for the timely
processing of requests could plausibly have led to such delays, which resulted in
inadequate treatment for Czubernat. Czubernat wrote at least three letters to the
health care unit on the days prior to her suicide requesting assistance, and these
letters were not processed until several days after she had already taken her own
life. (Doc. 98 ¶ 56).
18 As an initial matter, the Court notes that it does not look favorably upon the
inclusion of three separate defendants in the same count of a complaint, as it is not
clear what facts Plaintiff is alleging with respect to each named defendant. Despite
the fact that the Court is dismissing Defendant Yuan from this Count on grounds
independent of this issue, when Plaintiff re-files her Complaint, she is directed to
separate out the claims against Defendant Doe and Defendant Funk.
17
24
“A successful § 1983 claim based on a violation of the Eighth Amendment
requires [Plaintiff] to prove two things:
1) that the harm to [Czubernat] was
objectively, sufficiently serious and a substantial risk to [her] health or safety, and
(2) that [Defendant Yuan] was deliberately indifferent to [Czubernat’s] health and
safety.” Matos v. O’Sullivan, 335 F.3d 553, 556 (7th Cir. 2003).19 To establish that
Yuan was deliberately indifferent to Czubernat’s health and safety, Plaintiff must
show both that Yuan subjectively knew that Czubernat was at substantial risk of
committing suicide, and that he intentionally disregarded that risk. See id. at 557.
Finally, as with any cause of action under § 1983, Plaintiff must allege that
Defendant was “personally responsible” for the constitutional violation in that he
knew about the misconduct and participated in it, directed it, approved it,
facilitated it, or knowingly turned a blind eye to it. Knight v. Wiseman, 590 F.3d
458, 462 (7th Cir. 2009).
Defendant Yuan argues that Plaintiff has failed to allege either prong of the
deliberate indifference standard because she cannot allege that Yuan knew
Czubernat, and accordingly cannot allege that Yuan was aware of any risk to her, or
that he consciously disregarded such a risk. (Doc. 129 at 6). Additionally, Yuan
argues that Plaintiff has failed to allege that he was personally responsible for any
constitutional deprivation because Plaintiff is unable to plead that Yuan was
involved in Czubernat’s care, or even knew of her existence. (Doc. 129 at 7).
Magistrate Judge Cudmore disagreed, finding that Plaintiff had adequately
alleged a plausible claim of deliberate indifference and personal responsibility
The first prong is not at issue here as because suicide is an objectively serious
harm as a matter of law. See Matos, 335 F.3d at 556.
19
25
against Defendant Yuan. (Doc. 136 at 7). In reaching this determination, Judge
Cudmore relied upon the allegations that Defendant Yuan was a psychiatrist
working at Dwight Correctional Center and that Czubernat had addressed urgent
letters to him. (Doc. 136 at 7). Based upon these allegations, Judge Cudmore found
that there was a plausible inference that Yuan either saw or was otherwise
informed of the content of the letters, and that he was responsible for Czubernat’s
psychiatric care. (Doc. 136 at 7).
This Court does not agree with Magistrate Judge Cudmore’s assessment of
this claim. While Plaintiff does allege that letters were addressed to Dr. Yuan, and
that Dr. Yuan was a psychiatrist at the Dwight Correctional Center, such
allegations do not plausibly support the necessary finding that Yuan was actually
aware of the risk to Czubernat.20 Plaintiff fails to allege that Yuan ever had any
contact with Czubernat, or that he actually read/received her letters.
In fact,
Plaintiff has pled that Yuan never received three of the letters she sent to him, as
they were not even discovered until several days after she had committed suicide.
(Doc. 98 ¶ 56).
Because Plaintiff has not provided any factual support for the
proposition that Yuan was actually aware of the risk to Czubernat, she cannot
maintain an Eighth Amendment deliberate indifference claim against him.
Accordingly, Magistrate Judge Cudmore’s May 31, 2011 R&R (Doc. 136) is
REJECTED, Defendant Yuan’s Motion to Dismiss Count X of Plaintiff’s Second
Plaintiff’s allegation that Defendant Yuan “knew that Carol Czubernat was in
need of mental health treatment and was at high risk to harm herself” is merely a
conclusory recital of the elements of the cause of action, and is therefore not entitled
to a presumption of truth.
20
26
Amended Complaint (Doc. 128) is GRANTED, and Count X of Plaintiff’s Second
Amended Complaint is DISMISSED.
CONCLUSION
For the foregoing reasons, Magistrate Judge Cudmore’s R&R of April 5, 2011
(Doc. 131) is ADOPTED in part, and REJECTED in part. Plaintiff’s Proposed
Motion to File an Additional 2-622 Report with Second Amended Complaint at Law
(Doc. 112) is GRANTED, Defendant Wexford’s Motion to Dismiss Count VIII of
Plaintiff’s Second Amended Complaint (Doc. 104) is DENIED, Defendants Argosy
Group and Ray’s Motion to Dismiss Counts III and IV of Plaintiff’s Second Amended
Complaint (Doc. 102) is DENIED and Defendant Ray’s Motion to Dismiss Count VII
of Plaintiff’s Second Amended Complaint (Doc. 102) is GRANTED, and Count VII of
Plaintiff’s Second Amended Complaint is DISMISSED. Further, Magistrate Judge
Cudmore’s R&R of May 31, 2011 (Doc. 136) is REJECTED, Defendant Yuan’s
Motion to Dismiss (Doc. 128) is GRANTED, and Defendant Yuan is DISMISSED
from Count X of Plaintiff’s Second Amended Complaint. This matter is REFERRED
BACK to Magistrate Judge Cudmore for further pre-trial proceedings consistent
with this Order and Opinion. IT IS SO ORDERED.
Entered this 6th day of July, 2011.
s/ Joe B. McDade
JOE BILLY McDADE
United States Senior District Judge
27
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