McDonald v. Obaisi et al
MEMORANDUM Opinion and Order: Defendants' motion to dismiss, ECF No. 33 , is granted in part and denied in part. The court partially dismisses count three of the FAC, ECF No. 19 , to the extent it alleges that Obaisi is liable under a theory of supervisory liability. The court also partially dismisses count seven to the extent it seeks to impose liability under § 1983 based on respondeat superior. McDonald may amend his complaint to attach his proposed § 2-622(a) certificate, ECF No. 36 -1. The amended complaint is due on or before September 27, 2017. Signed by the Honorable Joan B. Gottschall on 9/13/2017. Mailed notice(mjc, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
DONALD LEE MCDONALD,
SALEH OBAISI and
WEXFORD HEALTH SOURCES INC.,
Case No. 16-CV-5417
Judge Joan B. Gottschall
MEMORANDUM OPINION & ORDER
The plaintiff, Donald Lee McDonald (“McDonald”), is a prisoner at Stateville
Correctional Center (“Stateville”) in Joliet, Illinois. 1st Am. Compl. (“FAC”) ¶ 4, ECF No. 19.
This litigation concerns his medical care. McDonald alleges that he has suffered from spinal
stenosis for years. Spinal stenosis “is a narrowing of the open spaces in the spine, which can put
pressure on the spinal cord and the nerves that travel through the spine to the arms and legs.”
FAC at 3 n.1 (citation omitted). McDonald has complained of severe, chronic lower back pain
for years, but, he alleges, Stateville medical personnel have provided, and continue to provide,
inadequate care. See FAC ¶¶ 7–14. As a result, McDonald claims that he has needlessly
suffered agonizing pain and that he still needs surgery. FAC at 1. In his amended complaint,
which the court refers to simply as the complaint, McDonald brings claims under 42 U.S.C. §
1983, the Eighth Amendment, and Illinois law. Defendants move to dismiss three counts for
failure to state a claim upon which relief can be granted. For the following reasons, the court
grants the motion in part and denies it in part.
This case is a partial sequel to McDonald v. Wexford Health Sources, Inc., No. 1:09-cv-
04196 (N.D. Ill.). See generally McDonald v. Wexford Health Sources, Inc., No. 09 C 4196,
2015 WL 3896929, at *1–4 (N.D. Ill. June 23, 2015) (summarizing claims and evidence at
summary judgment). McDonald names two defendants in this case: Wexford Health Sources,
Inc. (“Wexford”) and Dr. Saleh Obaisi (“Obaisi”). Under contract with the Illinois Department
of Corrections, Wexford provides medical care to Stateville prisoners, FAC ¶ 5, and Obaisi “is
responsible for implementing, overseeing, and supervising medical care at Stateville,” FAC ¶ 6.
McDonald sues Obaisi in his individual capacity. FAC ¶ 6. The prior McDonald case concerned
McDonald’s medical care during an earlier period in which Dr. Parthasarathi Ghosh served as
Stateville’s medical director. See FAC at 4 n.2.
The court takes the following facts from the complaint and accepts them as true for
purposes of deciding defendants’ motion. McDonald suffered severe lower back pain for years
before 2013. He “consistently requested medical attention from Wexford staff to reduce or
eliminate the pain.” FAC ¶ 7. By April 2013, the pain had begun to spread to his extremities.
FAC ¶ 8. Obaisi considered ordering two diagnostic tests, an MRI (magnetic resonance imaging)
and EMG (electromyography), to diagnose McDonald but decided not to do so. FAC ¶ 8.
Another Wexford employee whose identity is unknown reevaluated McDonald on August 30,
2013. FAC ¶ 9. The unknown doctor recommended that Obaisi reevaluate McDonald and
scheduled an appointment with Obaisi, but the reevaluation never took place. FAC ¶ 9.
Almost two years later, on July 28, 2015, Obaisi ordered an MRI and EMG. FAC ¶ 10. The
findings in the report on the MRI, which Wexford received in September 2015, were
“significant,” prompting Wexford doctors “to “suspect surgery will be necessary sooner rather
than later.” FAC ¶ 11 (quoting unspecified source). Another unknown Stateville doctor
recommended that McDonald receive a neurosurgical consultation. FAC ¶ 11.
McDonald alleges that Wexford staff provided improper and inadequate care before and
after he was diagnosed with spinal stenosis. FAC ¶¶ 12–14. For instance, Obaisi and other
Wexford doctors sometimes prescribed pain medication for McDonald, but Wexford employees,
such as nurses, refused to distribute it to him. FAC ¶ 13. McDonald asked them why, but he got
no answer. FAC ¶ 13. He had yet to receive surgery when he filed his first amended complaint.
FAC at 1.
II. LEGAL STANDARD
A Rule 12(b)(6) motion “tests the sufficiency of the complaint, not the merits of the
case.” McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th Cir. 2012). A complaint need
only set forth a “short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2).
To survive a Rule 12(b)(6) motion, a complaint must “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A claim satisfies this standard when its factual allegations
“raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555-56; see
also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010) (“[P]laintiff must give enough
details about the subject-matter of the case to present a story that holds together.”). For purposes
of a motion to dismiss, the court takes all facts alleged by the plaintiff as true and draws all
reasonable inferences from those facts in the plaintiff's favor, although conclusory allegations
that merely recite the elements of a claim are not entitled to this presumption of truth. Virnich v.
Vorwald, 664 F.3d 206, 212 (7th Cir. 2011).
III. § 1983 CLAIMS
In 42 U.S.C. § 1983, Congress created a damages remedy for violations of federal law by
a person acting “under color of” state law. See, e.g., Ziglar v. Abbasi, 137 S. Ct. 1843, 1854
(2017); Brown v. Randle, 847 F.3d 861, 865 (7th Cir. 2017). In count seven, McDonald seeks to
impose § 1983 liability on Wexford, a private corporation which has been contracted by the
Illinois Department of Corrections to provide medical services at Stateville, under the doctrine of
respondeat superior. Count three aims to hold Wexford and Obaisi liable under a “supervisory
A. Respondeat Superior For Wexford (Count Seven)
The well-established doctrine of respondeat superior “makes employers liable for their
employees’ actions within the scope of their employment.” Shields v. Ill. Dep’t of Corr., 746 F.3d
782, 793 (7th Cir. 2014) (citing Restatement (3d) of Agency § 2.04 (2006)) (other citations
omitted). McDonald asserts that Wexford is vicariously liable for its employees’ actions,
including Obaisi’s, under Illinois law. FAC ¶¶ 56–57. Defendants do not take issue with
McDonald’s use of respondeat superior for his claims under Illinois law. But, Wexford contends,
McDonald cannot use respondeat superior to impose vicarious liability on it under § 1983. See
FAC ¶ 58 (alleging that “Wexford, as a private corporation acting under color of state law, should
additionally be held liable under 42 U.S.C. § 1983 for the conduct of its employees acting within
the scope of their employment”).
As McDonald concedes, Wexford wins this argument under binding Seventh Circuit
precedent. FAC at 15 n.4; Resp. to Mot. to Dismiss 15 (“Resp.”), ECF No. 36. The Seventh
Circuit explained in Shields, supra, that its “controlling precedents” hold that “a private
corporation cannot be held liable under § 1983 unless the constitutional violation was caused by
an unconstitutional policy or custom of the corporation itself. Respondeat superior liability does
not apply to private corporations under § 1983.” Shields, 746 F.3d at 789 (citing Iskander v. Vill.
of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982)). Shields upheld the dismissal of a § 1983
claim against Wexford for this very reason. Id. But the Shields court opined that this rule
“deserve[s] fresh consideration, though it would take a decision by [the Seventh Circuit] sitting
en banc or pursuant to Circuit Rule 40(e), or a decision by the Supreme Court to overrule”
controlling Seventh Circuit precedent. Id.; see also id. at 789–96; id. at 801 (Tinder, J.,
concurring in the judgment). Based on this language, McDonald says that he pleaded his § 1983
respondeat superior theory to preserve it for possible appeal. Resp. 15. Because this court must
follow binding Seventh Circuit precedent until the Seventh Circuit or Supreme Court tells it to
do otherwise, this court dismisses the FAC’s § 1983 respondeat superior allegations. See Collins
v. Al-Shami, 851 F.3d 727, 734 (7th Cir. 2017) (citations omitted) (reaffirming rule that “[u]nder
existing precedent, neither public nor private entities may be held vicariously liable under §
1983”); Shields, 746 F.3d at 789.
B. The “Supervisory Liability” of Both Defendants (Count Three)
McDonald titled count three as a § 1983 claim against all defendants premised on “failure
to train or supervise.” FAC at 9. He alleges that Wexford and Obaisi “were responsible for the
creation, implementation, oversight, and supervision of policies, practices, and procedures
regarding medical care to inmates.” FAC ¶ 30. They “had notice of widespread policies and
practices by healthcare and correctional employees at Stateville pursuant to which prisoners like
Mr. McDonald with serious medical needs were routinely denied medical care and access to
medical care.” FAC ¶ 31; see also id. ¶¶ 24–25 (alleging nine specific policies or customs and
describing report from which defendants obtained knowledge of policies and practices). By
“fail[ing] to provide adequate training and supervision,” defendants allegedly “allowed [these
widespread policies and practices] to flourish.” Id. ¶ 33.
In their briefing, the parties cite a mix of supervisory-liability cases and cases applying
the rules for imposing liability on a municipality stemming from Monell v. Department of Social
Services, 436 U.S. 658 (1978). “There is a difference between supervisory liability and
municipal liability for failure to train or supervise.” Lessley v. City of Madison, 654 F. Supp. 2d
877, 910 (S.D. Ind. 2009); accord Almaraz v. Haleas, 602 F. Supp. 2d 920, 925 (N.D. Ill. 2008).
For what is referred to as supervisory liability to attach, a defendant acting under color of state
law, “must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye for
fear of what [he] might see.” Gill v. City of Milwaukee, 850 F.3d 335, 344 (7th Cir. 2017)
(quoting Matthews v. City of E. St. Louis, 675 F.3d 703, 708 (7th Cir. 2012)) (alteration in
original); accord Lessley, 654 F. Supp. 2d at 910 (quoting Lanigan v. Vill. of E. Hazel Crest, 110
F.3d 467, 478 (7th Cir. 1997)); Almaraz, 602 F. Supp. 2d at 925 (citation omitted). A supervisor
cannot be held individually liable under § 1983 for a constitutional violation unless the plaintiff
can show that the supervisor was “personally involved” in the violation in this way. Gill, 850
F.3d at 344 (quoting Matthews, 675 F.3d at 708). In contrast, supervisory liability for a
constitutional violation under Monell “is not limited to the Supervisory Defendants’ personal
knowledge and participation.” Almaraz, 602 F. Supp. 2d at 926. The Monell inquiry focuses not
so much on personal involvement as on the relationship between an official custom or policy and
the constitutional deprivation; it asks whether the deprivation was “caused by an express policy,
a widespread practice or custom, or the deliberate act of a policymaking official.” Id. (quoting
Ienco v. City of Chicago, 286 F.3d 994, 998 (7th Cir. 2002)); see also Daniel v. Cook Cnty., 833
F.3d 728, 736 (7th Cir. 2016); Thomas v. Cook Cnty. Sheriff’s Dep’t, 604 F.3d 293, 303 (7th Cir.
2010), as am. on denial of pet. for reh’g en banc May 3, 2010. The two inquiries can and do
lead to supervisory liability for individual defendants without Monell liability and vice versa.
See Lessley, 654 F. Supp. 2d at 909–10 (granting officers summary judgment on supervisory
liability and denying city summary judgment on Monell theory); Almaraz, 602 F. Supp. 2d at 926
(concluding that “any liability of the City based on the act of a policymaking official would be
distinct from the Supervisory Defendants’ liability” because supervisors were not policymakers).
Because plaintiff brings count three against both defendants, the court analyzes it under
both theories. While the complaint states a Monell claim against Wexford, it fails to allege
Obaisi’s personal involvement in his subordinates’ alleged misconduct.
1. The Monell Theory
Defendants rely principally on a Monell case, Strauss v. City of Chicago, 760 F.2d 765,
767 (7th Cir. 1985), to argue that McDonald needs to plead more specific facts in support of
count three. Several judges sitting in the Seventh Circuit have recognized that the Supreme
Court disapproved Strauss when it rejected a heightened pleading standard for § 1983 claims
against a municipality in its unanimous opinion in Leatherman v. Tarrant County Narcotics
Intelligence and Coordination Unit, 507 U.S. 163 (1993). E.g., Marcavage v. City of Chicago,
467 F. Supp. 2d 823, 828 (N.D. Ill. 2006), rev’d in part on other grounds, 659 F.3d 626 (7th Cir.
2011); Brogan v. Bd. of Educ. of City of Chicago, 152 F. Supp. 2d 1082, 1083–84 (N.D. Ill.
2001); Wolf v. City of Chi. Heights, 828 F. Supp. 520, 524 (N.D. Ill. 1993); see also McCormick
v. City of Chicago, 230 F.3d 319, 323–25 (7th Cir. 2000) (repudiating fact pleading after
Defendants cite a pair of cases to show that district courts in the Seventh Circuit
“routinely extend” Strauss. Mot. to Dismiss 4, ECF No. 33. But neither cites Strauss or a case
endorsing it. See Carter v. Elyea, No. 11 C 2914, 2012 WL 3779064, at *5 (N.D. Ill. Aug. 31,
2012); Coe v. Sloan, No. 3:10-cv-311-GPM-DGW, 2011 WL 5967261, at *7-8 (S.D. Ill. Oct. 11,
2011), report and recommendation adopted 2011 WL 5980348 (S.D. Ill. Nov. 29, 2011). Instead,
both cases apply Rule 8(a) pleading standards to supervisory-liability and failure-to-train
allegations. See Coe, 2011 WL 5967261, at *7-8 (citing and applying Twombly, 550 U.S. at 555–
56); Carter, 2012 WL 3779064, at *5 (quoting Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599,
602 (7th Cir. 2009) and EEOC v. Concentra Health Servs., 496 F.3d 773, 776 (7th Cir. 2007)).
Thus, the analytical framework Coe and Carter employed accords not with Strauss but with
Leatherman and Rule 8(a) as it was interpreted in Twombly and Iqbal. See White v. City of
Chicago, 829 F.3d 837, 844 (7th Cir. 2016), cert. denied, 137 S. Ct. 526 (2016).
More importantly for purposes of burying Strauss, the Seventh Circuit has held that
“[t]he Leatherman holding has survived the Court’s later civil pleading decisions in Iqbal and
Twombly, which require the pleader to allege a ‘plausible’ claim.” White, 829 F.3d at 844
(citations omitted). White clarified how much factual material must be pleaded to make the
existence of a widespread custom or practice plausible. The complaint in White stated that:
In accordance with a widespread practice of the police department
of the City of Chicago: [a police officer] requested the judge to
issue a warrant on the basis of [the officer]’s conclusory allegation
that other law enforcement officers claimed or believed plaintiff
had committed an offense, and [the officer] did not present the
judge with an affidavit setting out any affirmative allegation of
facts that would indicate that plaintiff had committed an offense.
White, 829 F.3d at 844. That allegation “[t]ogether with the individual claim against [the
officer]” sufficed to allege the existence of a widespread custom or practice. Id. The court held
that “White was not required to identify every other or even one other individual who had been
arrested pursuant to a warrant obtained through the complained-of process.” Id. (citing Jackson
v. Marion Cnty., 66 F.3d 151, 152–53 (7th Cir. 1995)).
After White’s clarification of what a § 1983 plaintiff must plead, count three’s allegations,
viewed as a Monell claim, satisfy Rule 8(a). As Judge Dow, who authored Carter, supra,
recently observed, district courts have relied on White to “scotch[ ] motions to dismiss” premised
on arguments that the complaint does not contain allegations beyond those relating to the
plaintiff.” Williams v. City of Chicago, No 16-cv-8271, 2017 WL 3169065, at *9 (July 26, 2017)
(quoting Stokes v. Ewing, No. 16 C 10621, 2017 WL 2224882, at *4 (N.D. Ill. May 22, 2017))
(collecting cases). By citing Strauss, defendants demand a holding that the complaint detail
more incidents to support the alleged customs listed in count three. As it happens, McDonald’s
complaint references a 2010 report describing more incidents of alleged inadequate care,
supervision, and training at Stateville. See FAC ¶ 24 (citing id. App. A). McDonald might get
extra credit for identifying additional incidents supporting his alleged policies and custom, but
his complaint passes the Rule 8(a) test without them under White. See White, 829 F.3d at 844.
McDonald alleges that he repeatedly sought medical care for his back pain over a seven-year
period, and Wexford employees provided him constitutionally inadequate care. See FAC ¶¶ 13–
14. He gives three examples (depending on how they are counted). See FAC ¶¶ 7–14. He then
pleads that Wexford had nine widespread customs and practices of subpar supervision and
training—the report he cites called it a “leadership vacuum”—at Stateville which led to his
alleged constitutional deprivations. See id. ¶¶ 24, 31–34. Together, these allegations provide
enough factual detail to give Wexford fair notice of the grounds on which McDonald’s efforts to
impose Monell liability in count three rest. See White, 829 F.3d at 843; Williams, 2017 WL
3169065, at *9 (“Under the binding precedent set by White, Plaintiff's allegations of a pattern or
practice of ignoring complaints of discrimination are enough to survive a motion to dismiss.”
(internal citation omitted)).
2. Supervisory Liability
Though it states a Monell claim, the complaint does not raise a plausible inference that
Obaisi was personally involved in his subordinates’ alleged constitutional violations. For
prisoners, the supervisory-liability test means that “to hold an individual defendant liable under
§ 1983 for a violation of an inmate’s constitutional rights, the inmate must show that the
defendant was personally responsible for that violation.” Rasho v. Elyea, 856 F.3d 469, 478 (7th
Cir. 2017) (citing Childress v. Walker, 787 F.3d 433, 439 (7th Cir. 2015)) (other citation omitted).
The Seventh Circuit most recently considered the sufficiency of a complaint’s allegations
of personal liability in Gill, supra. See also McCauley v. City of Chicago, 671 F.3d 611, 617–18
(7th Cir. 2011) (applying Twombly and Iqbal to Monell allegations). As the Seventh Circuit
described it, the complaint in Gill contained a bald allegation that a city police chief “failed to
train the detectives [allegedly involved in the underlying constitutional violation] adequately and
that [the chief] was ‘deliberately and recklessly indifferent’ to the detectives’ actions.” Gill, 850
F.3d at 344. Those allegations, the court held, were too conclusory to raise the plausible
inference that the chief “knew about or was personally involved in the specific conduct” about
which the plaintiff complained, so the complaint failed to state a claim that the chief should be
held liable under a supervisory or failure-to-train theory. Id. McDonald’s supervisory-liability
allegations fail for similar reasons.
To be clear, McDonald alleges that Obaisi personally made certain decisions. They
include (without limitation) the decision not to seek a diagnostic test in 2013, his decision not to
reevaluate McDonald in August–September 2013, the delay in surgery, and the decision in 2015
not to seek a surgical consult. See FAC ¶¶ 8–9, 12. The court does not understand Obaisi to be
asking for dismissal of McDonald’s claims against him stemming from those decisions or any
other decision in which he was personally involved. Nor could he. See Heard v. Tilden, 809 F.3d
974, 981 (7th Cir. 2016) (per curiam) (holding that “allegation that [prison medical director who
was also doctor] was involved directly in the choice to stall necessary surgery and prolong [the
plaintiff]’s pain is enough to state a claim” for individual liability (citing Smith v. Knox Cty. Jail,
666 F.3d 1037, 1040 (7th Cir. 2012) and Arnett v. Webster, 658 F.3d 742, 753 (7th Cir. 2011)));
see also McDonald v. Wexford Health Sources, Inc., 2015 WL 3896929, at *9 (N.D. Ill. June 23,
2015) (finding fact issue precluded summary judgment on previous Stateville medical director’s
personal involvement in McDonald’s care). So Obaisi is on the hook for his own alleged
conduct and conduct in which he was personally involved.
Nevertheless, the court can find nothing in the complaint raising the inference that Obaisi
was aware of or involved in the particular misconduct in which his subordinates allegedly
engaged. McDonald pleads, for instance, that Wexford employees refused for no reason to give
him prescribed pain medication. FAC ¶ 13. But no well-pleaded facts support the inference that
Obaisi was specifically aware of the problem. See id. (alleging that McDonald asked “Wexford
personnel” why he wasn’t receiving medication and got no answer but omitting mention of
Obaisi). McDonald does not allege, for instance, that he spoke to Obaisi or sent him a letter
about any of the incidents of inadequate care described in the complaint. Cf., McDonald, 2015
WL 3896929, at *9 (N.D. Ill., June 23, 2015) (finding fact issue precluded summary judgment
based in part on evidence that McDonald complained to Stateville’s medical director when they
met in a hallway); Rendon v. Wexford Health Sources, Inc., No. 10-cv-1410, 2011 WL 2669211,
at *12 (C.D. Ill. July 7, 2011) (finding allegations that prisoner addressed letter to psychiatrist
insufficient to state claim for supervisory liability because plaintiff did not allege that she had
any other contact with psychiatrist and did not allege that letter was received or read). In sum,
the complaint includes “no allegation or plausible inference that [Obaisi] knew about or was
personally involved in the specific conduct” of his subordinates about which McDonald
complains. Gill, 850 F.3d at 344; see also Rasho, 856 F.3d at 469 (affirming entry of summary
judgment for prison officials where prisoner produced no evidence that two supervisors,
“realized that something was amiss” with treating doctor’s medical decision).
IV. CLAIMS UNDER ILLINOIS LAW
McDonald brings a claim for intentional infliction of emotional distress against Obaisi in
count four. Counts five and six plead negligence claims against him.
Obaisi moves to dismiss count six because McDonald did not attach an affidavit and a
physician’s report or certificate to his complaint as he contends § 2-622 of the Illinois Code of
Civil Procedure required. See 735 Ill. Comp. Stat. 5/2-622(a) (West 2017). That section requires
an affidavit and a report or certificate to be attached to the complaint “[i]n any action, whether in
tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of
medical, hospital, or other healing art malpractice.” Id. McDonald and Obaisi dispute whether
count six is a malpractice claim covered by § 2-622(a). McDonald maintains that he seeks to
hold Obaisi liable as a supervisor for failing to follow the prescriptions, orders, and advice of
medical providers rather than for his own medical malpractice. See Resp. 12–13.
The Seventh Circuit applied the requirements of § 2-622 to claims for medical
malpractice against a prison doctor who served as a prison’s medical director in Sherrod v.
Lingle, 223 F.3d 605 (7th Cir. 2000). The prisoner in that case received medical care from the
director and three nurses for abdominal pain and other symptoms of what turned out to be
appendicitis. See id. at 608–09. He attached a § 2-622(a) certificate to his complaint, but the
district court found the certificate insufficient and dismissed his malpractice claim with
prejudice. Id. at 613. The Seventh Circuit held that dismissing without leave to amend was an
abuse of discretion. Id. at 613–14. It reasoned that the certificate at least approached the
“borderline” of sufficiency and explained that “when the certificate was filed but failed in some
technical or minor respect, sound discretion also requires [the court to give the plaintiff] an
opportunity to amend.” Id. at 614 (citing Apa v. Rotman, 680 N.E.2d 801, 804 (Ill. App. Ct.
1997)). So even if the court finds that a § 2-622(a) certificate is required for count six,
McDonald must be given an opportunity to amend his complaint.
Sherrod proves instructive because McDonald alternatively requests leave to add a § 2622(a) certificate to his complaint. See Resp. 12; Proposed certificate, ECF No. 36-1. The
defendants reply that they intend to challenge the certificate’s sufficiency if McDonald is allowed
to file it. Reply 8 n.3, ECF No. 37. Sherrod teaches that if § 2-622 applies to count six,
McDonald should receive leave to file his proposed certificate.
The proposed certificate has the potential to moot the question of whether a § 2-622(a)
certificate is required for count six, leaving the court on the horns of a dilemma. If the court later
rules that § 2-622(a) did not require a certificate for count six, litigating the certificate’s
sufficiency will have been a waste of effort. If, on the other hand, McDonald’s proposed
certificate passes muster under § 2-622(a), determining whether it was required will have been
unnecessary. Had McDonald not filed a proposed certificate, deciding whether one is required
would be the first order of business. But since McDonald has already gone to the trouble of
obtaining a certificate, litigating its sufficiency may yield a fringe benefit. The process may
produce more specifics about what care McDonald contends he should have received—
something that is at issue anyway in McDonald’s Eighth Amendment claims. Cf. § 2-622(a)(1);
Sherrod, 203 F.3d at 614 (criticizing certificate as “not a model of specificity” and holding that
district court should have granted leave to amend it).
Because it is the option more likely to advance this litigation overall, the court will grant
McDonald leave to amend his complaint to add his proposed certificate. Defendants may of
course litigate the certificate’s sufficiency, and if the certificate contains a technical defect,
McDonald will get a chance to try to fix it, as Sherrod requires. If the amended certificatge still
misses the mark under § 2-622(a), the court will return to the question of whether it was
For the reasons stated, defendants’ motion to dismiss, ECF No. 33, is granted in part and
denied in part. The court partially dismisses count three of the FAC, ECF No. 19, to the extent it
alleges that Obaisi is liable under a theory of supervisory liability. The court also partially
dismisses count seven to the extent it seeks to impose liability under § 1983 based on respondeat
superior. McDonald may amend his complaint to attach his proposed § 2-622(a) certificate, ECF
No. 36-1. The amended complaint is due on or before September 27, 2017.
Date: September 13, 2017
Joan B. Gottschall
United States District Judge
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