Durchslag v. United States of America

Filing 27

MEMORANDUM Opinion and Order Signed by the Honorable Sharon Johnson Coleman on 6/5/2017:Mailed notice(rth, )

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ROBERT DURCSHLAG
Plaintiff,
v.
UNITED STATES OF AMERICA,
CATHERINE LINAWEAVER, BONNIE
NOWAKOWSKI, GREG FEARDAY,
NDIFE, KRUGER,
Defendants.

)
)
) Case No. 16-cv-8648
)
) Judge Sharon Johnson Coleman
)
)
)
)
)
)
)

MEMORANDUM OPINION AND ORDER
Plaintiff, Robert Durchslag, brings this action against the United States of America and
individually named defendants Catherine Linaweaver, Bonnie Nowakowski, Greg Fearday, Ndife,
and Kruger, asserting claims under the Federal Tort Claims Act, a Bivens action, and intentional
infliction of emotional distress. The United States now moves this Court to dismiss Durchslag’s
Federal Tort Claims Act claim, which constitutes the sole count naming the United States as a
defendant. For the reasons set forth herein, that motion is granted.
Background
The following allegations taken from the plaintiff’s amended complaint are accepted as true
for the purpose of ruling on this motion. Durschlag was a pre-trial detainee who was in custody at
the Metropolitan Correctional Center in Chicago (“MCC”) from August 29, 2012 until July 11, 2016.
Durchslag suffers from an autoimmune condition that, prior to his arrest, was being treated by the
Northwestern Memorial Hospital and Northwestern Medical Group (“Northwestern”).
In late 2012, Durchslag began to notice that his vision was deteriorating. On December 10,
2012, Durchslag saw an ophthalmologist at Thorek Hospital regarding his vision. Durchslag was
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ordered to wear dark tinted glasses at all times in order to prevent continuing damage to his eyes and
was ordered to be seen by specialists at Northwestern’s Eye Clinic. Following that appointment,
however, MCC staff did not provide Durchslag with the requisite glasses or permit him to seek
treatment with Northwerstern’s Eye Clinic, notwithstanding his complaints to MCC personnel
including Nowakowski, Fearday, and Kruger. On February 17, 2013, Durchslag’s criminal defense
attorney filed a motion regarding Durchslag’s medical needs, and the MCC agreed to transport
Durchslag out of the facility for medical treatment. On February 18, 2013, Durchslag was returned
to Thorek hospital, where the same ophthalmologist examined Durchslag and noted that his prior
order had not been followed. Durchslag was subsequently allowed to wear dark tinted glasses at the
MCC, although he has made numerous complaints to MCC staff regarding the fit and effectiveness
of the provided glasses. On May 8 and again on June 11, 2013, Durchslag was examined at
Northwestern. At that time, Durchslag’s vision had deteriorated such that he could no longer read.
On December 4, 2013, Durchslag was recognized as “an individual with a disability” by the State of
Illinois and began receiving counseling and guidance regarding his vision loss.
On December 5, 2013, Durchslag was examined at Northwestern and instructed to follow
up with a specific neuro-ophthalmologist at Northwestern in one week. Between December 5, 2013
and October 22, 2015, Durchslag was not seen by any ophthalmologist or neuro-ophthalmologist,
including the one to which he had been previously referred. On October 22, 2015, he was seen by
various doctors at the University of Illinois Hospital and Health Sciences System in Chicago
(“UIC”), where he was informed that his vision had worsened. He was seen at UIC again on
November 11, 2015, at which time it was determined that he was completely blind and unlikely to
recover any of his vision. Lab results indicated that Durchslag was positive for multiple anti-retinal
autoantibodies, signaling the presence of autoimmune retinopathy and cancer-associated

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retinopathy. Durchslag was re-assessed at UIC on February 16, 2016, at which time additional
testing was recommended. That testing did not occur prior to Durchslag’s release on July 11, 2016.
On December 28, 2015, Durchslag presented his administrative claim to the Bureau of
Prisons. Following the denial of that claim Durchslag brought the present action.
Legal Standard
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal
sufficiency of the complaint, not the merits of the allegations. The allegations must contain
sufficient factual material to raise a plausible right to relief. Bell Atlantic Corp. v. Twombly, 550 U.S.
544, 569 n.14, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Although Rule 8 does not require a plaintiff
to plead particularized facts, the complaint must allege factual “allegations that raise a right to relief
above the speculative level.” Arnett v. Webster, 658 F.3d 742, 751–52 (7th Cir. 2011). Put differently,
Rule 8 “does not require ‘detailed factual allegations,' but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,
173 L.Ed.2d 868 (2009), see also Fed. R. Civ. P. 8(a). When ruling on a motion to dismiss, the Court
must accept all well-pleaded factual allegations in the complaint as true and draw all reasonable
inferences in the plaintiff’s favor. Park v. Ind. Univ. Sch. of Dentistry, 692 F.3d 828, 830 (7th Cir.
2012).
Discussion
The United States contends that Durchslag’s Federal Tort Claims Act (FTCA) claim is
untimely. The FTCA requires that a plaintiff file an administrative claim with the appropriate agency
before filing suit in federal court. 28 U.S.C. § 2675(a). A tort claim against the United States must
be presented to the administrative agency within two years “after such claim accrues” or it will be
“forever barred.” 28 U.S.C. § 2401(b). In a medical negligence case, a plaintiff’s claim accrues once

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the plaintiff knows or should have known that he has an injury and who caused that injury. United
States v. Kubrick, 444 U.S. 111, 121–123, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979).
Here, it is undisputed that Durchslag filed his administrative claim with the Bureau of
Prisons on December 28, 2015. Thus, Durchslag’s claim is time barred if it accrued any earlier than
December 28, 2013. Here, the government contends that Durchslag was aware of his vision loss as
early as December 10, 2012 or, if not then, during the course of his medical appointments prior to
December 4, 2013. If nothing else, the government contends, Durchslag was aware of his injury by
December 4, 2013, when he was declared legally disabled due to his vision loss.
Durchslag, in response, argues that it was not until November 2015 that he learned that he
may have cancer-associated retinopathy, a potential cause of his lack of visual function. This,
Durchslag contends, is when he discovered that the defendant’s failure to follow up on his testing
might have led to missed opportunities for treatment for his vision loss and his complete and
permanent blindness.
As a general matter, this Court agrees with the government that claims arising from its
conduct prior to December 4, 2013 accrued, at latest, on that same date. At that time, Durchslag
received a clear indication that he had been injured—the declaration of his disability—and he knew
or should have known that the government’s failures to timely provide treatment or to comply with
doctors’ orders were to blame. Durchslag’s claims may not be completely time-barred, however.
Durschlag has alleged that on December 5, 2013 he was ordered to follow up with a neuroophthalmologist, and that this did not happen. He has also alleged that his condition subsequently
worsened until November 11, 2015, at which time he was informed that he was completely blind
and unlikely to recover any of his vision. A claim arising from the MCC’s failure to comply with the
doctor’s order of December 5, 2013 therefore would not automatically be time barred, so long as the

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facts demonstrated that the injury accrued after December 28, 2013. Here, however, Durchslag has
not alleged any such injury with the requisite specificity, and his claim therefore must be denied.
The government alternatively contends that Durchslag’s complaint should be dismissed
because Durchslag failed to include the physician’s certificate of merit and report required by 735
ILCS § 5/2-622. Section 2-622 applies to any action seeking damages for injuries by reason of
medical, hospital, or healing art malpractice. Thus, section 2-622 applies to claims that nurses were
negligent in failing to provide medical care, but does not apply to claims that non-medial defendants
were negligent in failing to provide medical care. See Warren ex rel. Warren v. Dart, No. 09-cv-3512,
2010 WL 3883923, at *11–12 (N.D. Ill. Nov. 24, 2010) (Dow, J.). Although it is true that providers
of medical care are held to the same standard of care as non-providers of medical care in the
performance of duties unrelated to their medical expertise, the alleged wrongdoing here—ignoring
doctor’s orders and failing to adequately treat Durchslag’s medical condition—falls squarely within
the medical expertise of a medical provider.
Durchslag’s complaint is somewhat ambiguous about whether it is premised on the
negligence of medical staff, non-medical staff, or some combination thereof. This Court, however,
notes that the only individuals identified with specificity within the complaint are medical staff, and
that at least some of the negligent acts or omissions alleged in the complaint could only have been
performed by medical staff (i.e. failing to supervise and monitor plaintiff’s medical condition). This
Court accordingly holds that Durchslag was obligated to file a certificate of merit under section 2622, and that his failure to do so provides an independent basis for dismissing his complaint.
Conclusion
For the foregoing reasons, Durchslag’s First Amended Complaint is dismissed without
prejudice with respect to the United States of America. Durchslag is granted leave to file an

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amended complaint within forty-five (45) days of the entry of this order. Failure to do so will result
in the United States’ dismissal from this case with prejudice.

SO ORDERED.

____________________________________
Sharon Johnson Coleman
United States District Court Judge

DATED: June 5, 2017

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