Palmer v. Hardy et al
Filing
231
MEMORANDUM Opinion and Order: Franz's motion to dismiss 224 is denied. Signed by the Honorable Thomas M. Durkin on 11/7/2019:Mailed notice(srn, )
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
LEROY PALMER,
Plaintiff,
No. 13 C 1698
v.
Judge Thomas M. Durkin
CRAIG P. FRANZ, RN,
Defendant.
MEMORANDUM OPINION AND ORDER
Plaintiff LeRoy Palmer brings this action against Defendant Craig Franz for
an injury he suffered while in the custody of the Illinois Department of Corrections
(IDOC) at the Northern Reception and Classification Center (NRC). In August 2019,
the Court granted Palmer leave to file a fifth amended complaint. Franz moved to
dismiss Palmer’s medical malpractice claim (Count I). For the following reasons,
Franz’s motion is denied.
Legal Standard
A Rule 12(b)(6) motion challenges the “sufficiency of the complaint.” Berger v.
Nat. Collegiate Athletic Assoc., 843 F.3d 285, 289 (7th Cir. 2016). A complaint must
provide “a short and plain statement of the claim showing that the pleader is entitled
to relief,” Fed. R. Civ. P. 8(a)(2), sufficient to provide defendant with “fair notice” of
the claim and the basis for it. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
This standard “demands more than an unadorned, the-defendant-unlawfullyharmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While “detailed
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factual allegations” are not required, “labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555.
The complaint must “contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 570). “‘A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.’” Boucher v. Fin. Sys. of Green Bay, Inc., 880 F.3d
362, 366 (7th Cir. 2018) (quoting Iqbal, 556 U.S. at 678). In applying this standard,
the Court accepts all well-pleaded facts as true and draws all reasonable inferences
in favor of the non-moving party. Tobey v. Chibucos, 890 F.3d 634, 646 (7th Cir. 2018).
Background
This case has been pending since 2013 and the Court assumes the parties’
familiarity with the facts. In brief, Palmer entered IDOC custody in 2010. While at
Shawnee Correctional Center, the staff granted Palmer a low-bunk/low-gallery
permit due to his inability to safely climb to a top bunk because of a congenital
deformity of his left hand. The IDOC transferred Palmer to the NRC on January 11,
2012. When Palmer arrived at the NRC, nurse Craig P. Franz, an employee of
Wexford Heath Sources, Inc., conducted a routine intake screening. Palmer informed
Franz that he required a low bunk because of his congenital deformity, and that the
IDOC staff had granted him a low-bunk permit at Shawnee. Franz failed to take any
steps to ensure that Palmer received a low bunk, and Palmer had to use the top bunk
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in his cell. On January 22, 2012, Palmer injured his knee while attempting to climb
down from his bunk.
Palmer filed his third amended complaint on January 21, 2014, naming Franz
for the first time and asserting claims against him for negligence and deliberate
indifference. In September 2017, this Court granted Franz’s motion for summary
judgment on Palmer’s deliberate indifference claim. The Court also dismissed
Palmer’s negligence claim without prejudice for failing to attach an attorney’s
affidavit and reviewing physician’s report as required by section 2-622 of the Illinois
Code of Civil Procedure, the Healing Art Malpractice Act (“section 2-622”), and
directed Palmer that any refiling of the affidavit should be done in state court. Palmer
appealed this Court’s decision granting summary judgment on his federal claim. In
his appellate brief, Palmer also expressed his intention to refile his negligence claim
before this Court with a section 2-622 affidavit should the appellate court reverse.
The Seventh Circuit reversed and remanded, holding that a reasonable jury could
conclude that Franz’s refusal to act was a conscious decision to ignore the risk of harm
posed to Palmer.
In August 2019, this Court granted Palmer leave to file a fifth amended
complaint. The only change Palmer made to the fifth amended complaint was to
attach an attorney’s affidavit and physician’s report. Franz moved to dismiss
Palmer’s negligence claim, arguing that: (1) the applicable statute of limitations and
statute of repose bar the addition of a medical malpractice claim; (2) the affidavit and
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report were untimely filed under section 2-622 and that allowing the claim to proceed
would be unduly prejudicial; and (3) Palmer waived the claim on appeal.
Analysis
A. Statute of Limitations and Statute of Repose
The Court turns first to Franz’s argument that the statute of limitations and
statute of repose bar the addition of Palmer’s negligence claim. Illinois law requires
plaintiffs to bring a medical malpractice claim within two years of the date they knew,
or should have known, about the existence of the injury or death for which they seek
damages (statute of limitations), and no later than four years after the date on which
the act or omission occurred (statute of repose). 735 ILCS 5/13-212(a). Franz argues
that the statute of limitations and statute of repose bar Palmer’s claim because the
injury at issue occurred more than seven years ago. As Palmer points out, however,
Federal Rule of Civil Procedure 15(c)(1)(B) permits an amendment to a pleading when
“the amendment asserts a claim or defense that arose out of the conduct, transaction,
or occurrence set out—or attempted to be set out—in the original pleading.” Fed. R.
Civ. Pro. 15(c)(1)(B). Palmer’s only change to the fifth amended complaint was to add
the affidavit and physician’s report; the factual allegations against Franz remain the
same as in the third amended complaint. There is no question that the medical
malpractice claim in the fifth amended complaint relates back to Palmer’s earlier
pleading. See M.J. McCarthy Motor Sales Co. v. Van C. Argiris & Co., 396 N.E.2d
1253, 1258 (Ill. App. Ct. 1979) (“The law is clear that so long as the amended pleading
alleges matters that grew out of the same transaction or occurrence set forth at the
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time of the original filing, such pleading shall relate back to the original filing and
not be barred by the statute of limitations.”).
Even so, Franz argues, the statute of limitations also bars the third amended
complaint because Palmer’s medical intake occurred on January 11, 2012 and Palmer
did not file the third amended complaint until January 21, 2014. This argument also
fails. While Palmer met with Franz and received a top bunk on January 11, his injury
did not occur until January 22. The statute of limitations “does not begin to run on
the date when the plaintiff discovers or should have discovered that the defendant
has been negligent.” Goodhand v. United States, 40 F.3d 209, 214 (7th Cir. 1994).
Rather, it begins to run “on the date when the plaintiff discovers that he has been
injured by an act or omission attributable to the defendant.” Id. (emphasis added).
Thus, the statutory period began running when Palmer sustained his injury on
January 22, 2012, and Palmer’s January 21, 2014 filing was timely.
B. Attorney’s Affidavit and Physician’s Report
Franz next argues that the Court should dismiss the medical malpractice claim
because Palmer failed to timely file an attorney’s affidavit and reviewing physician’s
report as required by section 2-622. That section requires a medical malpractice
plaintiff to file a physician’s certificate of merit and an accompanying report with his
complaint. Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). The certificate “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.’” Id. (quoting
735 ILCS 5/2-622). Failure to abide by this requirement “shall be grounds for
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dismissal.” Id. Whether dismissal is with or without prejudice is a matter of the
district court’s discretion. Id. at 614 (citing McCastle v. Sheinkop, 520 N.E.2d 293,
296 (Ill. 1987)). Among the factors that courts consider in determining whether to
grant leave to amend a complaint are “whether the amendment would cure a defect
in the pleadings; whether the other party would be prejudiced or surprised by the
proposed amendment; timeliness of the proposed amendment; and whether there
were previous opportunities to amend the pleadings.” Christmas v. Dr. Donald W.
Hugar, Ltd., 949 N.E.2d 675, 684 (Ill. App. Ct. 2011) (quoting Lee v. Chicago Transit
Auth., 605 N.E.2d 493, 508 (Ill. 1992)). Section 2-622 “should be liberally construed
and not mechanically applied to deprive a plaintiff of her substantive rights. The
plaintiff in a medical malpractice action should be allowed every reasonable
opportunity to establish her case.” Cammon v. West Suburban Hosp. Med. Ctr., 704
N.E.2d 731, 739 (Ill. App. Ct. 1998) (internal citations omitted).
Franz contends that Palmer has no justification for waiting over six years to
submit an affidavit and physician’s report. But Franz misses that Palmer originally
sought to bring a claim for ordinary negligence, which does not require a certificate
of merit. Whether Palmer’s claim sounded in ordinary negligence or medical
malpractice was not decided until this Court’s September 18, 2017 summary
judgment order [R. 177]. The Court concluded that Palmer’s claim sounded in medical
malpractice and, in accordance with Seventh Circuit law, dismissed it with leave to
refile in accordance with the requirements of section 2-622. See Sherrod, 223 F.3d at
614 (quoting Cammon, 704 N.E.2d at 739) (“Illinois courts have held that when a
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plaintiff fails to attach a certificate and report, then ‘a sound exercise of discretion
mandates that [the plaintiff] be at least afforded an opportunity to amend her
complaint to comply with section 2-622 before her action is dismissed with
prejudice.’”). Palmer has done exactly that.
Franz argues that permitting Palmer to bring a medical malpractice claim at
this late stage would be unduly prejudicial because he can no longer pursue
additional discovery to defend against Palmer’s allegations. The Court disagrees. If
“the defendant has been made aware of the occurrence or transaction which is the
basis for the claim, he can prepare to meet the plaintiff’s claim, whatever theory it
may be based on.” Cammon, 704 N.E.2d at 736 (quoting Zeh v. Wheeler, 489 N.E.2d
1342, 1348 (Ill. 1986)). Such is the case here. As previously stated, the third and fifth
amended complaints contain identical factual allegations against Franz. Franz has
thus had since 2013 to pursue discovery related to Palmer’s negligence claim. He
cannot now viably claim surprise or undue prejudice simply due to the inclusion of a
physician’s report.1 In sum, Palmer had a justifiable reason for the delayed filing of a
certificate of merit (the parties’ dispute about whether one was required), Franz has
been aware of Palmer’s underlying factual allegations since 2013, and there has been
no indication of bad faith by Palmer. See Hahn v. Walsh, 762 F.3d 617, 634-35 (7th
Cir. 2014) (reversing district court’s dismissal with prejudice for failure to comply
This is especially true given that counsel for Plaintiff represented at the October
24, 2019 status hearing that he does not intend to call an expert at trial on this
claim. In addition, trial is scheduled to begin on April 20, 2020. Should Franz need
more discovery, he should seek leave to take it.
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with section 2-622 in part because there was no finding of bad faith or undue
prejudice). Franz’s motion to dismiss on this ground is denied.
C. Waiver
Franz also contends that Palmer waived his right to bring a negligence claim
by failing to raise it before the Seventh Circuit on appeal. As an initial matter, Palmer
noted in his appellate brief that “[s]hould the Court reverse the District Court, Mr.
Palmer intends to refile his state-law negligence claim with the District Court with a
section 2-622 affidavit.” R. 229 at 8. It is thus factually incorrect that Palmer did not
raise his negligence claim. And regardless, when a district court declines to exercise
supplemental jurisdiction over a state-law claim, as in this case, and all claims relate
to the same set of operative facts, courts in the Seventh Circuit “will ordinarily
reinstate the state-law claim along with the reinstated federal claim.” Edwards v.
Snyder, 478 F.3d 827, 832 (7th Cir. 2007) (reinstating plaintiff’s state-law medical
negligence claim because it related to the same operative facts as his claim for
deliberate indifference); Burns v. Fenoglio, 525 F. App’x 512, 516 (7th Cir. 2013)
(reinstating state-law negligence claim after vacating district court’s judgment on the
constitutional claim); Armstrong v. Squadrito, 152 F.3d 564, 582 (7th Cir. 1998) (“Of
course, because this decision reinstates [plaintiff’s] federal claims, on remand the
district court should entertain supplemental jurisdiction over [plaintiff’s] state law
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claims.”). Here, Palmer’s medical malpractice claim relates to his deliberate
indifference claim and is thus properly before the Court.2
Conclusion
For the reasons stated above, the Court denies Defendant’s motion to dismiss
Count I of Plaintiff’s fifth amended complaint [R. 224].
ENTERED:
Honorable Thomas M. Durkin
United States District Judge
Dated: November 7, 2019
For the same reasons, 725 ILCS 5/13-217 does not prohibit the reinstatement of
Palmer’s claim. The Court directed Palmer to refile his negligence claim in state court
after granting summary judgment on his federal claim. Because Palmer’s federal
claim has been reinstated, his related state-law claim is now also properly before the
Court. Franz’s argument that Palmer missed the refiling deadline would be more
appropriate had the appellate court affirmed this Court’s decision and had Palmer
then attempted to refile in state court. See Wade v. Byles, 692 N.E.2d 750, 751 (Ill.
App. Ct. 1991) (holding that there is no tolling of 735 ILCS 5/13-217 while a case
dismissed for lack of jurisdiction is on appeal).
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