Mrdak v. Sood et al

Filing 30

MEMORANDUM Order Signed by the Honorable Milton I. Shadur on 6/6/2011:Mailed notice(srn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
STAR MRDAK, etc.,
Plaintiff,
v.
KUL BIR SOOD, M.D., et al.,
Defendants.

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No.

11 C 1745

MEMORANDUM ORDER
Two of the five defendants in this 42 U.S.C. §1983 (“Section
1983”) action brought by Star Mrdak (“Mrdak”) as next friend of
Joseph Schaefer (“Schaefer”)--Dr. Imhotep Carter and Wexford
Health Sources, Inc. (“Wexford”)--have filed separate Answers to
the lengthy Complaint.

This memorandum order is prompted by a

few problematic aspects of those responsive pleadings.
To begin with, both Dr. Carter and Wexford are represented
by the same law firm--indeed, their interests are parallel.

And

that being so, the preparation of separate Answers rather than
one combined Answer (differentiating, of course, the responses to
Complaint paragraphs that call for separate treatment) was
insufficiently thoughtful as to the impact on the readers-Mrdak’s counsel and this Court.

In that respect, when this Court

reviews a responsive pleading paragraph by paragraph (as it
always does), it is terribly inconvenient to have to repeat that
task separately as to each defendant.
Accordingly this Court strikes both current Answers, without

prejudice of course to the filing of a single combined Amended
Answer on or before June 17, 2011.

Meanwhile, some aspects of

the Affirmative Defenses (“ADs”) appended to the Answers also
need attention.
Most importantly, Dr. Carter’s AD 4 and Wexford’s AD 2
assert the failure on Schaefer’s part to have exhausted
administrative remedies, which 42 U.S.C. §1997e(a) makes a
precondition to the institution of Section 1983 litigation by or
on behalf of a prisoner.

Because that may or may not require a

Pavey hearing (Pavey v. Conley, 528 F.3d 494 (7th Cir. 2008)),
each party is ordered to submit a statement on that score on or
before June 17, accompanied by all relevant information on the
subject.
Next, each defendant’s AD 1 challenges the sufficiency of
the Complaint as assertedly not meeting the “deliberate
indifference” requirement of Estelle v. Gamble, 429 U.S. 97
(1976).

But that is impermissibly at odds with the requirement

that an AD accept plaintiff’s well-pleaded allegations as true
(see Fed. R. Civ. P. 8(c) and the caselaw applying it, as well as
App’x ¶5 to State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D.
276, 279 (N.D. Ill. 2001)).

Accordingly each AD 1 is rejected

and should not be repeated in the Amended Answer.
Next, Dr. Carter’s AD 2 is puzzling.

Unless this Court

missed it (which is of course possible), Dr. Carter is not being

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sued “in his alleged official capacity,” so that an asserted
claim of immunity “as an official of the state” is inapplicable.
Finally, Dr. Carter’s AD 3, which asserts qualified
immunity, also impermissibly contradicts the allegations of the
Complaint (which negate good faith performance on his part).
That AD is also rejected and should not be repeated.

________________________________________
Milton I. Shadur
Senior United States District Judge
Date:

June 6, 2011

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