Gragg et al v. SIU Physicians & Surgeons et al

Filing 6

ORDER entered by Judge Sue E. Myerscough on 10/19/2017. The Report and Recommendation 5 is ADOPTED in its entirety. Plaintiffs Motion for Leave to Proceed in District Court Without Prepaying Fees or Costs 2 is DENIED.This case is DISMISSED without prejudice for failure to state a claim.This case is closed. See full Order attached. (RK, ilcd)

E-FILED

Monday, 23 October, 2017 02:16:37 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MICHAEL GRAGG and
TRACEY GRAGG,
Plaintiffs,
v.
SIU PHYSICIANS & SURGEONS,
et al.,
Defendants.

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No. 17-cv-3195

ORDER
SUE E. MYERSCOUGH, U.S. District Judge:
This matter comes before the Court on the Report and
Recommendation of United States Magistrate Judge Tom SchanzleHaskins (d/e 5). The Court ADOPTS the Report and
Recommendation.
On September 14, 2017, Plaintiffs Michael Gragg and Tracey
Gragg filed a pro se Complaint (d/e 1) against SIU Physicians &
Surgeons, Quanada Women’s Shelter, Memorial Health Systems,
and Central Illinois Kidney and Dialysis Center alleging medical
malpractice. Plaintiffs also filed a Motion for Leave to Proceed in
District Court Without Prepaying Fees or Costs (d/e 2).
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Judge Schanzle-Haskins reviewed Plaintiffs’ Complaint and
Motion for Leave. Judge Schanzle-Haskins recommends that this
Court deny the Motion for Leave to Proceed in District Court
Without Prepaying Fees or Costs filed by Plaintiffs Michael Gragg
and Tracey Gragg and dismiss the cause for failure to state a claim
upon which relief may be granted.
Objections to the Report and Recommendation were due
within 14 days of service of a copy of the Report and
Recommendation. A copy of the Report and Recommendation was
mailed to Plaintiffs on September 27, 2017.
When a party must act within a specified time after service is
made by mail, three days are added to the time period. See Fed. R.
Civ. P. 6(d); see also Fed. R. Civ. P. 5(b)(2)(C) (providing that a party
is served by mailing the document to the person’s last known
address, in which case service is complete upon mailing).
Therefore, Plaintiffs’ objections were due on or before October 16,
2017. Plaintiffs failed to file any objections.
Pursuant to Federal Rule of Civil Procedure 72(b)(3), the Court
Amay accept, reject, or modify the recommended disposition; receive
further evidence; or return the matter to the magistrate judge with
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instructions.@ Fed. R. Civ. P. 72(b)(3). The Court reviews de novo
any part of the Report and Recommendation to which a proper
objection has been made. Fed. R. Civ. P. 72(b)(3). AIf 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) (also noting that a party
who fails to object to the report and recommendation waives
appellate review of the factual and legal questions).
Judge Schanzle-Haskins found that Plaintiff’s Complaint failed
to state a claim because (1) Plaintiffs cannot bring a 42 U.S.C.
§ 1983 claim against defendants who are not state actors; (2) even if
SIU Physicians & Surgeons were considered a state actor, a medical
malpractice claim does not state a constitutional claim under
§ 1983; and (3) the Court lacks subject matter jurisdiction to hear
Plaintiffs’ claim for medical malpractice because Plaintiffs do not
allege a federal claim and have not shown that Plaintiffs are citizens
of one state and all of the defendants are citizens of another state.
After reviewing the Complaint and the Report and
Recommendation, as well as the applicable law, this Court finds no
clear error.
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IT IS THEREFORE ORDERED THAT:
(1)

The Report and Recommendation (d/e 5) is ADOPTED

in its entirety.
(2)

Plaintiffs’ Motion for Leave to Proceed in District

Court Without Prepaying Fees or Costs (d/e 2) is DENIED.
(3)

This case is DISMISSED without prejudice for failure

to state a claim.
(4)

This case is closed.

ENTER: October 19, 2017
FOR THE COURT:
s/ Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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