Tartt v. Magna Health Systems et al

Filing 158

MEMORANDUM OPINION AND ORDER: For the reasons stated below, the Court on its own motion dismisses with prejudice all of Plaintiff's claims against Judge Posner, Judge Ripple, Judge Easterbrook, Judge Kanne, and Judge Norgle and sanctions Plain tiff pursuant to Federal Rule of Civil Procedure 11 in the amount of $100, payable to the Clerk of Court within 28 days of the date of this order. The Court also dismisses with prejudice all claims against Northwest Suburban Anesthesiologists, Ltd., and Northwest Community Healthcare. All of the aforementioned Defendants are terminated from this lawsuit. The Court dismisses with prejudice certain claims against Defendants Illinois Department of Human Resources, the United States of Americ a, and the United States Departments of Labor, Justice, and Defense, as well as Individual Defendants Nagelberg, Kubik, Bridgeforth, Childs, Meshiah, Brohman, and Hucker, and law firm Defendants Kamensky, Rubenstein, Hochman & Delott and McDermott, W ill & Emery. The Court dismisses the remainder of Plaintiffs amended complaint without prejudice and gives him one final opportunity to file a complaint that states his remaining claims in compliance with Federal Rules of Civil Procedure 8(a) and 11, provided that Plaintiff also complies with the Courts order to pay the $100 sanction. Plaintiff is given 28 days from the date of this order to do so. Plaintiff's motions for injunctive relief 132 and for default judgment 134 are denied. Signed by the Honorable Robert M. Dow, Jr on 8/19/2014. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

DERRICK TARTT,
Plaintiff,
v.
MAGNA HEALTH SYSTEMS, et al.,
Defendants.

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Case No. 13-cv-8191
Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER
Currently before the Court are pro se Plaintiff Derrick Tartt’s 1060-paragraph, 278-page
amended complaint [123], with an additional 364 pages of supporting exhibits [124]; motion for
injunctive relief voiding sale and eviction [132]; and motion for default for failure to appear and
default judgment and complete service list [134]. For the reasons stated below, the Court on its
own motion dismisses with prejudice all of Plaintiff’s claims against Judge Posner, Judge Ripple,
Judge Easterbrook, Judge Kanne, and Judge Norgle and sanctions Plaintiff pursuant to Federal
Rule of Civil Procedure 11 in the amount of $100, payable to the Clerk of Court within 28
days of the date of this order. The Court also dismisses with prejudice all claims against
Northwest Suburban Anesthesiologists, Ltd., and Northwest Community Healthcare. All of the
aforementioned Defendants are terminated from this lawsuit.

The Court dismisses with

prejudice certain claims against Defendants Illinois Department of Human Resources, the United
States of America, and the United States Departments of Labor, Justice, and Defense, as well as
Individual Defendants Nagelberg, Kubik, Bridgeforth, Childs, Meshiah, Brohman, and Hucker,
and law firm Defendants Kamensky, Rubenstein, Hochman & Delott and McDermott, Will &
Emery. The Court dismisses the remainder of Plaintiff’s amended complaint without prejudice

and gives him one final opportunity to file a complaint that states his remaining claims in
compliance with Federal Rules of Civil Procedure 8(a) and 11, provided that Plaintiff also
complies with the Court’s order to pay the $100 sanction. Plaintiff is given 28 days from the
date of this order to do so. Plaintiff’s motions for injunctive relief [132] and for default
judgment [134] are denied.
I.

Background
Plaintiff is an African American anesthesiologist and military reservist who is proceeding

pro se in this action. In his sweeping and voluminous amended complaint [123], Plaintiff alleges
that the approximately 60 named Defendants participated in a vast campaign of discrimination
that began with and snowballed from an allegedly improper delay of his ROTC officer
commission in the early 1980s. According to Plaintiff, over the next three decades Defendants
“conspired to deny the rights and benefits of military service, civilian employment, insurance
claims for person and property, breached contracts, fail[ed] to uphold duty as representative and
judicial officers; committed fraud, force[d] the plaintiff into servitude, used enhancement and
torture to further their cause of denying ‘benefits of employment.’” [123] ¶ 8. Plaintiff seeks
damages from all Defendants, see id. ¶¶ 7-24, as well as various forms of injunctive relief, such
as vacatur of the judgments rendered in prior lawsuits in which he has been involved. See, e.g.,
id. ¶¶ 12, 115, 131, 205-06, 451, 688. Plaintiff also has filed a separate motion for injunctive
relief in the form of voiding sale and eviction [132], and another for default judgment against 15
Defendants who had not filed appearances as of April 2, 2014 [134].
II.

Discussion
A.

Plaintiff’s Amended Complaint

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In the interest of judicial economy, see Gleash v. Yuswak, 308 F.3d 758, 760 (7th Cir.
2002), the Court has, to the extent possible in light of the prolixity and general unintelligibility of
the amended complaint, see United States ex rel. Garst v. Lockheed-Martin Corp., 328 F.3d 374,
378 (7th Cir. 2003), undertaken a preliminary review of Plaintiff’s allegations. The Court may
“on its own motion, dismiss a suit based on an affirmative defense that is apparent and
unmistakable from the face of a complaint (thus rendering the suit frivolous) before the
defendant files an answer.” Adams v. Rotkvich, 325 Fed.Appx. 450, 453 n.1 (7th Cir. 2009)
(citing Walker v. Thompson, 288 F.3d 1005, 1009 (7th Cir. 2002), and Gleash v. Yuswak, 308
F.3d 758, 760 (7th Cir. 2002)). The Court dismisses the claims discussed below with prejudice
as patently without merit.
The remainder of Plaintiff’s amended complaint – the merits of which the Court has not
assessed – is dismissed without prejudice.

To the extent that it may contain plausible,

meritorious claims, the amended complaint’s sheer volume and redundancies render it
unintelligible “by scattering and concealing in a morass of irrelevancies the few allegations that
matter.” Garst, 328 F.3d at 378; see also Fed. R. Civ. P. 8(a); Stanard v. Nygren, 658 F.3d 792,
798 (7th Cir. 2012). Plaintiff’s 1060 allegations span nearly 300 pages and name approximately
60 Defendants, making it nearly impossible to ascertain the contours and machinations of the
alleged conspiracy or conspiracies.

“Rule 8(a) requires parties to make their pleadings

straightforward, so that judges and adverse parties need not try to fish a gold coin from a bucket
of mud.” Garst, 328 F.3d at 378. This rule applies to pro se plaintiffs just as it does to those
represented by counsel. See, e.g., Jones v. Phipps, 39 F.3d 158, 163 (7th Cir. 1994). Plaintiff,
who has a post-graduate education, is given one final opportunity to raise his surviving claims in
an intelligible, short, and plain pleading as required by Federal Rule of Civil Procedure 8.

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Plaintiff may submit a final amended complaint within 28 days of the date of this order. Plaintiff
is cautioned that sanctions may be imposed if he persists in asserting claims that have been
dismissed with prejudice.
1.

Northwest Suburban Anesthesiologists & Northwest Community Hospital

In November 2000, Defendant Northwest Suburban Anesthesiologists (“NSA”)
terminated Plaintiff’s employment. Tartt v. Nw. Cmty. Hosp., 453 F.3d 817, 819 (7th Cir. 2006);
see also, e.g., [123] ¶¶ 107, 164, 391. As a result, Plaintiff also lost his staff privileges at
Defendant Northwest Community Hospital (“the Hospital”).

Tartt, 453 F.3d at 819.

In

December 2000, Plaintiff filed two lawsuits seeking relief under the Uniformed Services
Employment and Re-employment Rights Act of 1994, 38 U.S.C. §§ 4301-4333 (“USERRA”),
and Title VII. Id. “The first lawsuit, No. 00 C 7959 (‘7959’), named NSA as the only defendant.
The second suit, No. 00 C 7960 (‘7960’), was filed against both NSA and the Hospital.” Id.
“The claims raised by the two complaints were identical.” Id.

In the 7959 and 7960 suits,

Plaintiff alleged that “he entered into an employment agreement with NSA in 1993; he entered
the military in 1994 and took a leave of absence from NSA; upon his return to NSA he was
coerced into signing an amended employment agreement; the amended agreement denied him of
retirement benefits, stock ownership, promotions, salary, training, and vacation.” Id. at 822. All
of the claims that Plaintiff alleged against the Hospital arose from his employment with NSA,
which was “the exclusive provider of anesthesiology at the Hospital.” Id. at 823. Both suits
were assigned to Judge Norgle, who ultimately dismissed the 7959 case on the merits and
dismissed the 7960 case on res judicata grounds. See id. at 820-21. Plaintiff appealed the
dismissal of the 7960 case to the Seventh Circuit, and an appellate panel consisting of Judges
Posner, Ripple, and Kanne affirmed Judge Norgle’s ruling. See generally id.

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In the instant suit, Plaintiff seeks to assert claims against Defendants NSA, the Hospital,
and various individuals affiliated with these entities arising from the alleged injustices he
endured from 1993 to 2000. See, e.g., [123] ¶¶ 99, 103, 107, 122-23, 143, 145-89, 213, 517-56,
564-94, 604-07, 701-02, 838-41, 843-47, 849-68, 865,1 869-72, 892-93, 1007-25. (Plaintiff also
seeks to assert claims against Judges Norgle, Posner, Ripple, Kanne, and Easterbrook stemming
from their actions in connection with the 7959 and 7960 cases. The Court addresses these
allegations below.) Most, if not all, of these claims appear to be identical to those advanced in
the 7959 and 7960 suits. The Court concludes that all of Plaintiff’s claims against NSA and the
Hospital plainly arise from the same constellation of facts that was addressed in the 7959 and
7960 suits and accordingly are barred by res judicata.2
Res judicata, also known as claim preclusion, is a doctrine that protects the finality of
previous judgments by preventing parties from relitigating previously resolved claims. Palka v.
City of Chi., 662 F.3d 428, 437 (7th Cir. 2011). Because the earlier judgments were rendered by
federal courts, the Court applies the federal law of claim preclusion. Ross ex rel. Ross v. Bd. of
Educ. of Township High Sch. Dist. 211, 486 F.3d 279, 283 (7th Cir. 2007). Under that law, res
judicata applies if there is: “(1) a final judgment on the merits in an earlier action, (2) an identity
of the cause of action in both the earlier and later suit, and (3) an identity of parties or privies in
the two suits.” Tartt, 453 F.3d at 822. All three of these criteria are met here.
First, Plaintiff’s claims have been adjudicated to a final judgment on the merits. The
7959 suit was finally resolved on the merits by Judge Norgle in 2003, see id. at 822, and the
1

The amended complaint contains paragraphs sequentially numbered from 1 to 894 followed by
paragraphs sequentially numbered from 852 to 1060.
2

The Court does not at this time dismiss the claims against the individual Defendants associated with
NSA or the Hospital; it is not immediately apparent from the face of the amended complaint that those
individuals are in privity with NSA or the Hospital. The individual Defendants are not precluded from
raising a res judicata defense if Plaintiff proceeds with his claims against them.

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Seventh Circuit concluded in 2006 that the 7960 suit was the same as the 7959 suit. See
generally id.; see also Bernstein v. Bankert, 733 F.3d 190, 224 (7th Cir. 2013). Second, the
causes of actions asserted against NSA and the Hospital in the instant case are the same as those
asserted in Plaintiff’s prior cases. “Two claims are one for purposes of res judicata if they are
based on the same, or nearly the same, factual allegations.” Id.; see also Bernstein, 733 F.3d at
226 (“Federal law defines a ‘cause of action’ as a core of operative facts which give rise to a
remedy. Accordingly, the test for an ‘identity of the causes of action’ is whether the claims arise
out of the same set of operative facts or the same transaction.” (quotations and citation omitted)).
That is, claims are the same if “the underlying allegedly wrongful events are the same.” Ross,
486 F.3d at 283. Here, the allegedly wrongful events transpired between 1993 and 2000 and
culminated with Plaintiff’s termination from NSA and loss of privileges at the Hospital. These
same events were the subject of Plaintiff’s 7959 and 7960 suits. Even if Plaintiff seeks relief
under different legal theories, res judicata prevents the relitigation of claims already litigated as
well as those that could have been litigated but were not. Palka, 662 F.3d at 428. Finally, the
parties are identical: Plaintiff sought relief from NSA and the Hospital in 2000 and seeks relief
from these same entities here. Plaintiff’s claims against NSA and the Hospital are precluded by
res judicata and accordingly are dismissed. Defendants NSA and the Hospital are terminated
from this suit.
2.

Judge Defendants

As the Court previously advised Plaintiff in open court, judges generally are immune
from suits for money damages. See Mireles v. Waco, 502 U.S. 9, 9 (1991). Indeed, “[a] judge
has absolute immunity for any judicial action unless the judge acted in the absence of all
jurisdiction.” Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011). “The doctrine of judicial

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immunity has been embraced ‘for centuries.’” Dawson v. Newman, 419 F.3d 656, 660 (7th Cir.
2005) (quoting Lowe v. Letsinger, 772 F.3d 308, 311 (7th Cir. 1985)). It confers complete
immunity from suit, not merely a defense to liability. Id. “If a judge errs ‘through inadvertence
or otherwise, a party’s remedy is through appellate process.’” Id. (quoting Lowe v. Letsigner,
772 F.2d 308, 311 (7th Cir. 1985)).
Here, Plaintiff alleges that Circuit Judges Posner, Easterbrook, Ripple, and Kanne
conspired with District Judge Norgle (collectively the “Judge Defendants”) to deny him due
process in connection with the 7959 and 7960 suits. See, e.g., [123] ¶¶ 451-62. Plaintiff alleges
that Judge Norgle wrongfully disposed of his suits, that an appellate panel consisting of Judges
Posner, Ripple, and Kanne wrongfully affirmed Judge Norgle’s rulings, and that former Chief
Judge Easterbrook wrongfully denied Plaintiff’s judicial misconduct claim against Judge Norgle.
Plaintiff has asked the Court for compensatory, liquidated, punitive, and nominal damages, and
further has requested that the Court vacate the judgments in Judge Norgle’s cases pursuant to
Federal Rule of Civil Procedure 60.
All of the wrongs allegedly perpetrated by the Judge Defendants plainly comprised
judicial actions undertaken in connection with Plaintiff’s cases. See Dawson, 419 F.3d at 661.
Accordingly, the Judge Defendants are entitled to absolute judicial immunity. Plaintiff’s claims
against them are frivolous. Plaintiff’s claims against the Judge Defendants, including but not
limited to those asserted in Counts I, II, V, XIV, XV, XVI, XVII, XX, XXI, XXII, XXXVII,
XXXIX, and LX of the amended complaint, are dismissed with prejudice.

The Judge

Defendants are terminated from this case. The Court further sanctions Plaintiff pursuant to its
authority under Federal Rule of Civil Procedure 11. See Fed. R. Civ. P. 11(b), (c). The Court
previously warned Plaintiff that sanctions would be forthcoming if he continued to assert

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frivolous claims against the Judge Defendants, and Plaintiff nonetheless pressed ahead with these
claims. Plaintiff is sanctioned in the amount of $100, payable to the Clerk of the Court
within 28 days of the date of this order. Plaintiff is cautioned that continued attempts to assert
patently frivolous claims against the Judge Defendants (or any other Defendants) may result in
further sanctions, up to and including dismissal of this suit.
3.

Illinois Department of Human Resources, United States, and United States
Departments of Justice, Defense, and Labor

In 2000, Plaintiff filed a lawsuit, No. 00 C 6481, in which he alleged that the Illinois
Department of Human Resources (“IDHR”), the United States, and the U.S. Departments of
Justice, Defense, and Labor (collectively “the United States”) failed to properly investigate and
remedy his complaints against NSA and the Hospital. Plaintiff sought relief under USERRA,
Title VII, the Equal Pay Act, and other unspecified federal statutes. Judge Norgle granted
IDHR’s and the United States’ motions to dismiss the Title VII and Equal Pay Act claims on the
merits because neither IDHR nor the United States was Plaintiff’s employer. See Case No. 00 C
6841, Dkt. No. 51 (N.D. Ill. May 9, 2001). (Judge Norgle dismissed Plainitff’s USERRA claim
against the United States on jurisdictional grounds.) To the extent that Plaintiff seeks to assert
claims predicated on the same alleged failures to investigate against these same Defendants in
the instant lawsuit, they are barred by res judicata and accordingly are dismissed. See Tartt, 453
F.3d at 822.
4.

Individual Defendants Nagelberg, Kubik, Bridgeforth, Childs, Meshiah.
Brohman, and Hucker and law firm Defendant Kamensky, Rubenstein,
Hochman & Delott and McDermott, Will & Emery

Plaintiff alleges that various attorneys that he has enlisted or opposed over the years have
conspired to commit malpractice and sabotage his lawsuits. For instance, Plaintiff alleges that
Defendant Sheldon Nagelberg, who represented Plaintiff in the early 1990s, conspired with

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Defendant Assistant U.S. Attorney James Kubik to lampoon Plaintiff’s habeas corpus case. See
[123] ¶¶ 743-45. Plaintiff also alleges that Defendants Wyvonnia Bridgeforth, James M. Childs,
Jr., Elijah Meshiah, Michael Brohman, Brian Hucker, and the law firms of Kamensky,
Rubenstein, Hochman & Delott and McDermott, Will & Emery committed malpractice in
connection with his 7959 and 7960 cases. See id. ¶¶ 233, 441-42, 446-47, 751-53, 763-64, 774,
779, 784. Regardless of any merit that such claims might have, see Tartt, 453 F.3d at 820 n.1;
[123] ¶ 437, any malpractice claims against these Defendants must be dismissed with prejudice
as time-barred.
The statute of limitations on legal malpractice actions in Illinois is two years after the
plaintiff knew or reasonably should have known of the injury. 735 ILCS 5/13-214.3(b). In no
event may a malpractice claim be asserted more than six years after the date on which the
challenged act or omission occurred. 735 ILCS 5/13-214.3(c). Here, Plaintiff seeks relief for
alleged legal malpractice by these Defendants that occurred, at the latest, in 2006, more than
seven years before he brought the instant lawsuit. Accordingly, any legal malpractice claims
against Individual Defendants Nagelberg, Kubik, Bridgeforth, Childs, Meshiah, Brohman, and
Hucker, and law firm Defendants Kamensky, Rubenstein, Hochman & Delott and McDermott,
Will & Emery are time-barred and are dismissed with prejudice. Plaintiff cannot avoid this
result by cloaking his malpractice claims in the language of USERRA, which, as he rightly
points out, see [123] ¶ 32, does not limit the time in which claims may be brought. See 38 U.S.C.
§ 4327(b). Plaintiff has not alleged that any of these attorneys were his employers, or raised any
plausible, non-conclusory allegations that they conspired with his employers to violate his
USERRA rights. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); 38 U.S.C. §§ 4303(4), 4311,
4312, 4323.

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B.

Motion for Default Judgment

Plaintiff has filed a motion for Default Judgment against 15 Defendants who had not
entered an appearance in the case as of April 2, 2014. See [134]. This motion is denied, both as
moot in light of the Court’s dismissal of Plaintiff’s amended complaint and as a matter of the
Court’s discretion. See Homer v. Jones-Bey, 415 F.3d 748, 753 (7th Cir. 2005). The Seventh
Circuit generally favors adjudication of claims on their merits rather than their dismissal through
default judgments, see, e.g., Cracco v. Vitran Express, Inc., 559 F.3d 625, 631 (7th Cir. 2009),
and the Court is not inclined to render a default judgment against Defendants who may not have
known that their appearance even was required in light of the Court’s order holding in abeyance
the filing of responsive pleadings. See [129]. The Court notes that several of the Defendants
named in the motion have entered appearances in the matter, see [137]-[149], and that the claims
against non-appearing Defendant Judge Easterbrook have been dismissed with prejudice.
C.

Motion for Injunctive Relief

Plaintiff also has filed a motion for injunctive relief, in which he requests that the Court
“[i]ssue an injunction voiding sale and eviction from 1848 N. Sayre Ave., Chicago, IL 60607.”
[132] ¶¶ 9-11.

This motion asserts three claims that are duplicative of several raised in

Plaintiff’s now-dismissed amended complaint. See id. Accordingly, the motion is denied. The
motion also is denied on the alternative basis that Plaintiff has not demonstrated a likelihood of
success on the merits of his claims. To obtain a preliminary injunction “the moving party must
show that its case has ‘some likelihood of success on the merits’ and that it has ‘no adequate
remedy at law and will suffer irreparable harm if a preliminary injunction is denied.’” Stuller,
Inc. v. Steak N Shake Enters., Inc., 695 F.3d 676, 678 (7th Cir. 2012) (quoting Ezell v. City of
Chi., 651 F.3d 684, 694 (7th Cir.2011)). Here, Plaintiff has failed to make the threshold showing

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that the claims asserted in the motion are likely to succeed on the merits. The first count, see
[132] ¶ 9, does not contain a discernible claim. The second count is unlikely to succeed because
the Servicemembers Civil Relief Act (“SCRA”) by its terms only governs the interest rate that
may be charged “during the period of military service and one year thereafter, in the case of an
obligation or liability consisting of a mortgage * * * *” 50 App’x U.S.C. § 527. The SCRA
does not place a cap on the interest rate that may be charged at the outset of a mortgage, or at any
time after the servicemember’s active service ends. More importantly, a servicemember seeking
the protection of § 527 must “provide to the creditor written notice and a copy of the military
orders calling the servicemember to military service and any order further extending military
services, not later than 180 days after the date of the servicemember’s termination or release
from military service,” 50 App’x U.S.C. § 527(b)(1), and there is no indication in any of
Plaintiff’s submissions that he tendered the requisite notice to any Defendant at any time.
Finally, the third count is unclear as to what sort of discrimination Plaintiff suffered, what
provisions of the cited statutes that Defendant BMO Harris Bank allegedly violated, how any
violations were connected to the foreclosure, or why Plaintiff was unable to raise these claims in
his state court foreclosure action.
The Court also notes that the relief sought in this motion may best be provided by a state
appellate court; the general rule is that the Court lacks jurisdiction to adjudicate “cases brought
by state-court losers complaining of injuries caused by state-court judgments rendered before the
district court proceedings commenced and inviting district court review and rejection of those
judgments.” Exxon Mobil Corp. v. Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005).

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III.

Conclusion
For the reasons stated above, the Court on its own motion dismisses with prejudice all of

Plaintiff’s claims against Defendant Judges Posner, Ripple, Easterbrook, Kanne, and Norgle, and
sanctions Plaintiff in the amount of $100, payable to the Clerk of Court within 28 days of the
date of this order. The Court also dismisses with prejudice the claims against Northwest
Suburban Anesthesiologists, Ltd. and Northwest Community Healthcare.

All of the

aforementioned Defendants are terminated from this lawsuit. The Court also dismisses with
prejudice certain claims against the Illinois Department of Human Resources, the United States
of America, and the United States Departments of Labor, Justice, and Defense, as well as
Individual Defendants Nagelberg, Kubik, Bridgeforth, Childs, Meshiah, Brohman, and Hucker,
and law firm Defendants Kamensky, Rubenstein, Hochman & Delott and McDermott, Will &
Emery. The Court dismisses the remainder of Plaintiff’s amended complaint without prejudice
and gives him one final opportunity to file a complaint that complies with Federal Rules of Civil
Procedure 8(a) and 11, provided that Plaintiff also complies with the Court’s order to pay the
$100 sanction. Plaintiff is given 28 days from the date of this order to do so. Plaintiff’s motions
for injunctive relief [132] and for default judgment [134] are denied.

Dated: August 19, 2014

_____________________________
Robert M. Dow, Jr.
United States District Judge

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