Brown v. Sajjad et al

Filing 36

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 8/23/2012: Defendants motion to dismiss 24 is granted in part and denied in part. To the extent the Third Amended Complaint asserts state-law claims of negligence or malpractice, the claims are dismissed. The Court will read the allegations in the Third Amended Complaint as asserting only deliberate indifference claims. The motion to dismiss is denied with respect to Defendants' contention that they cannot be considered state actors under 42 U.S.C. § 1983. Defendants are directed to answer the Third Amended Complaint or otherwise plead within 30 days of this order. Mailed notice(tbk, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Robert M. Dow, Jr.

CASE NUMBER

12 C 49

CASE TITLE

Sitting Judge if Other
than Assigned Judge

DATE

8/23/2012

Archie Brown (110N04127) vs. Roseland Community Hospital, et al.

DOCKET ENTRY TEXT

Defendants’ motion to dismiss [24] is granted in part and denied in part. To the extent the Third Amended
Complaint asserts state-law claims of negligence or malpractice, the claims are dismissed. The Court will read
the allegations in the Third Amended Complaint as asserting only deliberate indifference claims. The motion
to dismiss is denied with respect to Defendants’ contention that they cannot be considered state actors under 42
U.S.C. § 1983. Defendants are directed to answer the Third Amended Complaint or otherwise plead within 30
days of this order.
O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff Archie Brown, currently incarcerated at the Lake County Jail, has three related suits concerning
his need psychiatric medication and care in April and May 2010. In case number 10 C 3609, Plaintiff alleges
that during an interrogation following his arrest, two Chicago police detectives ignored his complaints that he
needed his psychiatric medication and that he was hearing voices telling him to kill himself. Allegedly, when
the two detectives left the interrogation room, Plaintiff tore open a Coke can and cut his wrist. Plaintiff was
subsequently taken to Roseland Community Hospital (“Roseland”), where he was treated by Dr. Sajjad. The
instant suit is against Dr. Sajjad and Roseland. Plaintiff alleges that Dr. Sajjad refused to refer Plaintiff for a
psychiatric evaluation or provide him with his prescribed medication, but instead, only treated his wrist. Plaintiff
was then taken to Cook County Jail, where jail officers also allegedly ignored Plaintiff’s need for psychiatric care
and medication. A month later, Plaintiff again attempted suicide by hanging himself. Plaintiff’s suit 10 C 3610
is against Cook County Jail officials.
Currently before the Court is a motion to dismiss filed by Dr. Sajjad and Roseland (“Defendants”). They
contend: (1) Plaintiff may not bring state-law claims of negligence or malpractice against them, given that the
complaint did not include a certifying physician’s report in accordance with Illinois law 735 ILCS 5/2-622, and
(2) Plaintiff may not bring federal civil rights claims against the Defendants under 42 U.S.C. § 1983 because the
Defendants are not state actors. For the following reasons, the Court grants in part and denies in part their
motion.
When reviewing a motion to dismiss, a court considers to be true all well pleaded allegations, as well as
any inferences reasonably drawn therefrom. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The
purpose of a motion to dismiss is not to determine whether a plaintiff will ultimately succeed, but whether the
complaint sufficiently asserts facts, which when accepted as true, state a valid and plausible claim for relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must at least “plausibly suggest that the plaintiff has
a right to relief, raising that possibility above a ‘speculative level.’” E.E.O.C. v. Concentra Health Services, Inc.,
496 F.3d 773, 776 -77 (7th Cir. 2007); citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). If a
plaintiff pleads facts demonstrating that he has no claim, a court may dismiss the complaint. McCready v. eBay,
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STATEMENT
Inc., 453 F.3d 882, 888 (7th Cir. 2006); Tamayo, 526 F.3d at1086. A court may also dismiss claims, to which
affirmative defenses apply, if the defenses are so plain from the face of the complaint such that the claim can be
regarded as frivolous. Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir. 2010), citing Walker v. Thompson, 288
F.3d 1005, 1009-10 (7th Cir. 2002).
Defendants’ contention that Brown cannot bring state-law claims because he did not include a certifying
physician’s report with his complaint is correct. Although Plaintiff’s Third Amended Complaint (which is
actually the first amended complaint), for the most part, asserts only federal § 1983 claims, he does state at the
beginning of the complaint that Dr. Sajjad and Roseland should be held liable for deliberate indifference,
“medical negligence,” and “negligent failure to identify mental illness.” [12 at 1.] The complaint thus appears
to include state-law claims of negligence against both Defendants.
Illinois law requires a plaintiff to file a physician's report with every complaint alleging malpractice. 735
ILCS 5/2-622. The report must affirm that a qualified, licensed physician has reviewed the case and determined
that “there is a reasonable and meritorious cause for the filing of such action.” 5/2-622(a)(1); see also Sherrod
v. Lingle, 223 F.3d 605, 613–14 (7th Cir. 2000). This rule is a substantive one, as opposed to simply procedural,
and thus applies to Illinois state-law claims filed in federal court. Warren ex rel. Warren v. Dart, No. 09 C 3152,
2010 WL 4883923 at *10 (N.D. Ill. Nov. 24, 2010) (Dow, J.), citing Chapman v. Chandra, No. 06-cv-651, 2007
WL 1655799, at *3–4 (S.D. Ill. Jun. 5, 2007) (Reagan, J.) (collecting cases). Neither the Third Amended
Complaint nor Plaintiff’s original complaint includes a physician’s report. The lack of the physician’s report thus
warrants the dismissal of any state-law medical claims.
Whether the dismissal is with or without prejudice is within the discretion of this Court. Sherrod, 223
F.3d at 613, citing McCastle v. Sheinkop, 121 Ill.2d 188, 520 N.E.2d 293, 295-96 (Ill. 1987). Courts have gone
both ways with whether to dismiss with or without prejudice. Sherrod, 223 F.3d at 613-14 (where the
physician’s report filed with the complaint was insufficient, dismissal should be without prejudice to allow the
opportunity to cure); Warren ex rel. Warren, 2010 WL 4883923 at *12 (state malpractice claims were dismissed
without prejudice to allow plaintiff to submit a physician’s report); but see Hahn v. Walsh, 686 F. Supp. 2d 829,
831, 833 (C.D. Ill. 2010); Hill v. C.R. Bard, Inc., 582 F. Supp. 2d 1041, 1045 (C.D. Ill. 2008). (both courts
holding that the absence of a report with a complaint, as opposed to a incomplete or insufficient report as in
Sherrod, warranted dismissal with prejudice of the state-law claims).
In the instant case, dismissal with prejudice is appropriate. Although the introduction of the Third
Amended Complaint states that Plaintiff seeks to sue both Defendants for “medical negligence” and a “negligent
failure to identify mental illness,” and Plaintiff occasionally describes Dr. Sajjad’s actions as a “negligent failure
to detect” (12 at 1, 3), Plaintiff predominantly describes Dr. Sajjad’s actions as being “with malice,”
“deliberate[ly] indifferent,” and a deliberate “turning a blind eye” to Plaintiff’s condition. Id. at 3-6.
Furthermore, in response to the motion to dismiss the state-law claims under 5/2-622, Plaintiff does not state that
he seeks to supplement his complaint with a certifying physician’s report, but instead, states that his complaint
should not be dismissed because he sufficiently alleged federal claims of deliberate indifference. Pl.’s Resp. at
2. Accordingly, the Court dismisses with prejudice the state-law claims of medical negligence, to the extent such
claims are included in the Third Amended Complaint. The Court will construe Plaintiff’s allegations as asserting
only § 1983 claims without any pendent state-law claims.
With respect to Defendants’ contention that Plaintiff may not pursue § 1983 claims against them because
they are not state actors, their motion to dismiss is denied. Civil rights claims must involve some type of
government action. To state a § 1983 civil rights claim, a plaintiff must sufficiently allege that: (1) a person
acting under color of state law, i.e., a state actor (2) deprived him of a right, privilege, or immunity secured by
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STATEMENT
the U.S. Constitution or federal law. London v. RBS Citizens, N.A., 600 F.3d 742, 745-46 (7th Cir. 2010).
The Defendants contend, and Plaintiff does not dispute, that Roseland, as well as its doctors and
employees, are private parties. The Supreme Court has recognized, however, that private physicians may be
deemed state actors when they provide medical care to inmates at a prison. West v. Atkins, 487 U.S. 42, 54
(1988) Although the medical care in West was provided at a prison, the Seventh Circuit has stated that “nothing
in [West’s] analysis suggests that the result necessarily would have been different had the care been provided at
a private facility.” Rice ex rel. Rice v. Correctional Medical Services, 675 F.3d 650, 672 (7th Cir. 2012) (citing
Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 827 (7th Cir.2009) (“The state clearly does not relieve
itself of its responsibility to provide medical care solely on account of the venue where those services are
rendered.”)); see also Conner v. Donnelly, 42 F.3d 220, 225–26 (4th Cir. 1994) (deeming private physician who
treated prisoner's injury in physician's office outside prison to be state actor).
When determining whether private physicians and hospitals may be considered state actors, courts have
looked to the relationship between the physician and prison or governmental entity and whether “the care was
provided under contract with the prison in fulfillment of the prison's obligation to provide for the inmate's
medical needs.” Rice 675 F.3d at 672. Where a private physician or hospital voluntarily agreed to provide
services to inmates, the providing of such services may be considered state action. Id. at 673 (although the
Seventh Circuit indicated that state action would exist if there was an agreement to provide psychiatric services
to jail inmates; the court did not actually answer the question but instead found no deliberate indifference).
Conversely, an emergency room acceptance of an inmate as a patient “does not mean that it has agreed to step
into the shoes of the state and assume the state's responsibility toward these persons.” Rodriguez v. Plymouth
Ambulance Service, 577 F.3d 816, 828 (7th Cir. 2009). “[A]n emergency medical system that has a preexisting
obligation to serve all persons who present themselves for emergency treatment hardly can be said to have
entered into a specific voluntary undertaking to assume the state's special responsibility to incarcerated persons.”
Id. at 827-28 (citing Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd et seq.).
This Court cannot determine from the complaint alone whether there was an arrangement between
Roseland and the Chicago Police Department to accept arrestees for treatment. As noted by Plaintiff in his
response to the motion to dismiss, his Third Amended Complaint has a pre-printed form with Roseland letterhead
titled “Arrestee Medical Clearance Report,” which suggests a preexisting agreement for Roseland to provide
medical care for arrested persons. See Third Am. Compl. at Ex. B. Defendants cite to Rappe v. McGee, No. 11
C 1393, 2011 WL 6102016 at *3 (N.D. Ill. Dec. 7, 2011) (Kennelly, J.), wherein Northwestern Memorial
Hospital and physicians there were dismissed from a § 1983 action as non-state actors. The complaint in that
case, however, contained allegations and exhibits indicating that Rappe was taken to Northwestern only as an
emergency patient and that no contract existed between it and Metropolitan Correctional Center. Id. Plaintiff’s
Exhibit B to the complaint in the instant case suggests that Roseland may have “enter[ed] into a contractual
relationship with the [City of Chicago] to provide specific medical services to inmates.” Rodriguez, 577 F.3d
at 827. If a more fully developed record demonstrates that no agreement existed between Roseland and the City,
and that Dr. Sajjad’s treatment of Plaintiff was solely because Plaintiff was presented as an emergency patient,
Defendants may re-raise their argument in a summary judgment motion. However, Plaintiff’s Third Amended
Complaint cannot be dismissed on a motion to dismiss based upon Defendants’ contention that they cannot be
considered state actors under § 1983.
For the reasons stated above, Defendants’ motion to dismiss [24] is granted in part and denied in part.
To the extent the Third Amended Complaint asserts state-law claims of negligence or malpractice, the claims are
dismissed. The Court will read the allegations in the Third Amended Complaint as asserting only deliberate
indifference claims. The motion to dismiss is denied with respect to Defendants’ contention that they cannot be
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STATEMENT
considered state actors under § 1983. Defendants are directed to answer the Third Amended Complaint or
otherwise plead within 30 days of the date of this order.

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