Plummer v. Godinez et al

Filing 49

MEMORANDUM OPINION AND ORDER Signed by the Honorable Harry D. Leinenweber on 3/4/2015:Mailed notice(wp, )

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

EDWARD PLUMMER,
Plaintiff,

Case No. 13 C 8253

v.
Judge Harry D. Leinenweber
S.A. GODINEZ, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
Before

the

Court

is

Defendant

Joy

Urubusi’s

(“Urubusi”)

Motion to Dismiss Plaintiff’s Complaint pursuant to Federal Rule
of

Civil

Procedure

12(b)(6)

[ECF

No.

38].

For

the

reasons

stated herein, the Motion is granted.
I.
On

November

(hereinafter,
count

17,

2013,

“Plummer”

Complaint

BACKGROUND

or

alleging

Plaintiff

“Plainitff”)

violations

of

Edward

filed
42

a

Plummer

twenty-nine

U.S.C.

§ 1983

and

medical malpractice. Urubusi, a psychiatrist who treated Plummer
while

he

was

incarcerated

by

the

Illinois

Department

of

Corrections, is one of sixteen Defendants (“Defendants”) named
in the Complaint.
Plummer
approximately

claims
1991

that
to

2007,

during

his

Defendants

incarceration
forced

him

to

from
take

certain

psychotropic

permanent
According

medications,

injuries
to

including

Plummer,

on

which

caused

diminished

June

20,

2004,

him

mental
Urubusi

to

suffer

capacity.
added

two

milligrams of Prolixin to Plummer’s medication regiment with no
basis for doing so.

Plummer claims that changing his medication

without medical basis violated his Eighth Amendment right to be
free from cruel and unusual punishment and constituted medical
malpractice.

Plummer

claims

that

he

discovered

his

alleged

injuries after he requested copies of his mental health records
on May 3, 2012.
II.
A

motion

to

dismiss

for

LEGAL STANDARD
failure

to

state

a

claim

under

Rule 12(b)(6) challenges the legal sufficiency of a complaint.
Hallinan v. Fraternal Order of Chi. Lodge No. 7, 570 F.3d 811,
820 (7th Cir. 2009).
statement

showing

A complaint must contain a short and plain

the

plaintiff

is

entitled

to

relief

and

providing the defendant with fair notice of the claim and its
basis.

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citing FED. R. CIV. P. 8(a)(2)).

A complaint need only contain

sufficient factual allegations that, if accepted as true, state
a claim for relief that is “plausible on its face.”

Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at
570) (internal quotations omitted).

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III.

ANALYSIS

Urubusi argues that Plummer has failed to state § 1983 and
medical malpractice claims because:

(1) both claims are barred

by the applicable statutes of limitations, (2) Plummer failed to
allege

facts

deliberate

sufficient

to

indifference

show

to

his

that

Urubusi

serious

medical

acted

with

needs

in

violation of the Eighth Amendment, (3) Plummer failed to comply
with the pleading requirements for medical malpractice actions
contained in 735 ILCS 5/2-622, and (4) the claims brought in
Counts XIII and XX do not identify Urubusi properly.
A.
Urubusi

first

Statute of Limitations

argues

that

the

two-year

statute

of

limitations for Plummer’s § 1983 and medical malpractice claims
has

run.

Urubusi

Plummer

filed

his

Complaint

allegedly

added

the

Prolixin

regiment on June 20, 2004.
should

have

known

of

December 20,

2007,

which

on
to

November
Plummer’s

17,

2013.

medication

Urubusi argues that Plummer knew or

his

alleged

is

when

previously administered medications.

injury
he

no

stopped

later

than

taking

all

Urubusi adds that in any

case, the four-year statute of repose for medical malpractice
claims in Illinois expired on June 20, 2008.
Plummer’s

response

to

Urubusi’s

statute

of

limitations

defense is muddled, and much of the case law he relies on is not
relevant.

Plaintiff’s main arguments appear to be that:
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(1) he

suffered diminished mental capacity due to Defendants’ alleged
conduct “and was by the time he was released from prison unable
to determine the cause of the injuries he suffered,” (2) he was
“not

qualified”

to

make

medical

determinations

regarding

his

injuries, and (3) “the fact and extent of [his] injuries” only
became clear after his medical records were requested.
Resp., ECF No. 43, at 2–3.)

(Pl.’s

Plummer further argues his medical

malpractice claims are not time barred because his diminished
mental capacity tolled the statute of limitations.
Both
subject

§
to

provisions

1983

claims

two-year
for

and

medical

statutes

legal

of

disability.

malpractice

limitations
The

claims

with

applicable

are

tolling

limitations

period for § 1983 actions brought in federal court in Illinois
is Illinois’ two-year statute of limitations for personal injury
actions.

Smith v. City of Chi. Heights, 951 F.2d 834, 839 (7th

Cir. 1992) (citing 735 ILCS 5/13-202).
the claims accrue.
Cir.

1992).

Federal law governs when

Wilson v. Geisen, 956 F.2d 738, 740 (7th

“Civil

rights

claims

.

.

.

accrue

when

the

plaintiff knows or should know that his or her constitutional
rights have been violated.”

Id.

An individual who is under a

legal disability at the time a personal injury cause of action
accrues may bring the action “within 2 years after . . . the
disability is removed.”

735 ILCS 5/13-211(a).

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The applicable limitations period for medical malpractice
actions is two years from “the date on which the claimant knew,
or through use of reasonable diligence should have known, or
received notice in writing of the existence of the injury or
death for which damages are sought in the action.”
5/13-212(a).

735 ILCS

A plaintiff cannot bring a claim more than four

years after the act alleged to have caused the injury occurred.
Id.

However, if a medical malpractice plaintiff was under a

legal disability at the time his cause of action accrued, the
limitations period does not begin to run until the disability is
removed.

735 ILCS 5/13-212(c).

A legal disability need not be adjudicated formally for
either

the

personal

provision to apply.

injury

or

medical

malpractice

tolling

See, West by Grove v. Rockford Memorial

Hosp., 812 F.Supp. 833, 835–36 (N.D. Ill. 1992).

To allege a

legal disability, a plaintiff must allege that he was “entirely
without

understanding

or

capacity

to

make

or

communicate

decisions regarding his person and totally unable to manage his
estate or financial affairs.”

Estate of Riha v. Christ Hosp.,

544 N.E.2d 403, 405 (Ill. App. Ct. 1989).
The Court finds that Plummer has sufficiently alleged a
legal

disability

that

would

toll

the

statute

of

limitations

under 735 ILCS 5/13-211(a) and 735 ILCS 5/13-212(c).

Plummer

alleges that after his release from prison on December 28, 2007
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he was missing until February 19, 2008 “because he no longer had
the mental capacity to find his way home.”

(Compl., ECF No. 1,

¶ 49.)

Further, Plaintiff alleges that since his re-release

from

subsequent

a

incarceration

on

March

4,

2008,

he

has

remained unable to live on his own and cannot take care of
himself.

(Id. ¶ 51; Pl.’s Resp. at 2.)

Plummer’s situation is

distinguishable from those described in the cases Urubusi cites,
in

which

plaintiffs

their own affairs.

indicated

that

they

were

able

to

manage

See, e.g., Parks v. Kownacki, 737 N.E.2d

287, 295 (Ill. 2000) (rejecting legal disability claim where
plaintiff

did

not

allege

difficulty

“managing

her

person

or

estate”); Bloom v. Braun, 739 N.E.2d 925, 933 (Ill. App. Ct.
2000) (rejecting legal disability claim where plaintiff held job
and paid for her own living expenses).
Alternatively,

and

regardless

of

legal

disability,

Plummer’s allegation that he did not discover his injuries until
after

May

3,

2012

“Normally,

it

is

saves

his

inappropriate

§

1983

to

claims

grant

a

at

motion

this

stage.

to

dismiss

based on a defendant's affirmative defense, unless a plaintiff
pleads

itself

out

of

court.”

Collier

v.

City

of

Chicago,

No. 08-CV-5645, 2010 WL 476649, at *3 (N.D. Ill. Feb. 4, 2010).
Plummer has not pleaded himself out of court.
diagnosed with schizophrenia.

Plummer has been

The fact that he suffered from

episodes of paranoia and no longer wanted to take medication
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does not establish that he should have known his rights had been
violated.
his

It is plausible that Plummer may not have known of

injuries

May 3, 2012.

until

his

medical

records

were

obtained

after

If this is the case, the § 1983 claims raised in

Plummer’s November 17, 2013 Complaint are timely.
For

these

reasons,

the

Court

rejects

Urubusi’s

argument

that Plummer’s claims are time barred.
B.

Deliberate Indifference to Serious Medical Condition

Urubusi argues that Plummer has failed to state a valid
§ 1983

claim

Urubusi

for

argues

violation

that

of

Plummer

his

has

Eighth

failed

Amendment

rights.

allege

serious

to

a

medical condition to which a state official was deliberately
indifferent.
response

brief,

treatment

he

indifference.”
In

Plummer

an

does

except

received

to

not

address

argue

rose

this

argument

that
the

to

the

entire

level

of

in

course

his
of

“deliberate

(Pl.’s Resp. at 4.)
Eighth

Amendment

analysis,

“[t]he

deliberate

indifference standard . . . applies to the decisions of prison
medical personnel as to what medical care a prisoner requires.”
Collignon v. Milwaukee Cnty., 163 F.3d 982, 989 (7th Cir. 1998).
A plaintiff must establish “(1) an objectively serious medical
condition to which (2) a state official was deliberately . . .
indifferent.”
2008).

Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.

A medical professional is deliberately indifferent if he
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or she (1) knows of and disregards a substantial risk to an
inmate’s

health,

inference

of

inference.
(1994)).

or

serious

(2)

is

harm

aware

could

be

of

facts

drawn

from

and

which

draws

an

such

an

Id. (citing Farmer v. Brennan, 511 U.S. 825, 837
When a treatment decision by a medical professional is

so far afield of accepted professional standards that it raises
the inference that it was not based on medical judgment, a jury
can

infer

deliberate

indifference.

Id.

(citing

Norfleet

v.

Webster, 439 F.3d at 396 (7th Cir. 2006)).
Plummer has alleged that Urubusi increased the dosage of a
powerful psychotropic drug by two milligrams with no medical
basis

for

doing

so.

At

this

stage,

the

Court

finds

that

Plummer’s allegations that he endured the forced administration
of drugs with no medical basis could support an inference of
deliberate

indifference.

Thus,

the

Court

finds

that

the

Complaint sufficiently alleges a plausible claim that Urubusi
violated Plummer’s Eighth Amendment rights.
C.
Urubusi

Compliance with 735 ILCS 5/2-622

next

argues

that

Plummer’s

medical

malpractice

claims should be dismissed because Plummer did not attach an
attorney

affidavit

or

a

reviewing

health

care

professional’s

written report and certificate of merit as required by 735 ILCS
5/2-622.

Plummer attached an attorney affidavit to his response

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along with an Amended Complaint, but he nonetheless failed to
attach the requisite report and certificate.
To

minimize

frivolous

medical

malpractice

lawsuits,

Illinois law requires that a plaintiff attach to the complaint
an attorney affidavit attesting that the attorney has consulted
with

a

qualified

622(a)(1).

health

care

professional.

735

ILCS

5/2-

A plaintiff must also attach a report written by the

health professional that clearly identifies the plaintiff and
the reasons for the health professional’s determination that the
cause of action has merit.

Id.

If a report is filed as to a

defendant licensed to treat human ailments with drugs - such as
a psychiatrist - “the written report must be from a physician
licensed

to

practice

medicine

in

all

its

branches.”

Id.

Although failure to attach a physician’s report and certificate
is

grounds

plaintiff]
complaint

for
be

to

at

dismissal,
least

comply

afforded

with

dismissed with prejudice.”
(7th

Cir.

“discretion
an

section

mandates

opportunity

2–622

before

that

to
her

[the

amend

her

action

is

Sherrod v. Lingle, 223 F.3d 605, 614

2000)(alteration

in

original)(quoting

Cammon

v.

W.

Suburban Hosp. Med. Ctr., 704 N.E.2d 731, 739 (Ill. App. Ct.
1998))(internal quotations omitted).
Here, Plummer has filed an attorney affidavit, but still
lacks

the

medical

report

and

malpractice

certificate
claims.

In
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needed

to

addition,

proceed
the

with

health

his
care

professional

referenced

in

the

attorney

affidavit

does

not

appear to be “a physician licensed to practice medicine in all
its

branches,”

which

would

Urubusi is a psychiatrist.

be

required

in

this

case

because

As Sherrod instructs, dismissal with

prejudice before granting Plaintiff leave to amend his complaint
to comply with the requirements of 735 ILCS 5/2-622 is not in
the

interests

Plaintiff’s

of

justice.

medical

Accordingly,

malpractice

claims,

the
but

Court
does

dismisses

so

without

prejudice.
D.

Counts XIII and XX

Urubusi’s fourth and final contention is that the claims in
Counts XIII and XX of the Complaint do not state a cause of
action against her because they name another Defendant, Lisa
Weitekamp.

To cure this defect, Plummer attached a proposed

Amended Complaint properly identifying Urubusi. (ECF No. 43-2.)
However,

as

discussed

above,

the

Amended

Complaint

is

still

deficient under 735 ILCS 5/2-622.
The Court dismisses Counts XIII and XX without prejudice.
Plaintiff is granted thirty (30) days leave to file an Amended
Complaint that addresses both the deficiency under 735 ILCS 5/2622 described above and the misidentification of Urubusi.
IV.

CONCLUSION

For the reasons stated herein, Urubusi’s Motion to Dismiss
is granted.

Plummer’s medical malpractice claims are dismissed
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without prejudice because of his failure to fully comply with
735 ILCS 5/2-622.

Counts XIII and XX are dismissed without

prejudice because of the misidentification of Urubusi.

Plummer

is granted leave to file an Amended Complaint addressing these
defects within thirty (30) days of the entry of this order.

IT IS SO ORDERED.

Harry D. Leinenweber, Judge
United States District Court
Dated: 3/4/2015

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