Thomas v. Szoke et al

Filing 110

ORDER on the Report and Recommendation of Magistrate Judge Donald G. Wilkerson: The Court ADOPTS the Report and Recommendation of Magistrate Judge Wilkerson 97 . Plaintiff's medical malpractice claim under the FTCA against Defendant United States of America is dismissed with prejudice. Defendants' motion to dismiss 80 is DENIED as MOOT. Signed by Judge G. Patrick Murphy on 11/20/2012. (mab)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

CLARENCE THOMAS,
Plaintiff,
vs.
DAVID F. SZOKE,
Defendant.

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CIVIL NO. 10-838-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This matter is before the Court on the Report and Recommendation of United States
Magistrate Judge Donald G. Wilkerson (Doc. 95), recommending that Plaintiff’s claim pursuant to
the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2671 et seq., be dismissed for failure to
comply with 735 ILCS 5/2-622, and for failure to comply with a Court Order. Magistrate Judge
Wilkerson entered the Report and Recommendation on July 20, 2012 (Doc. 95). Plaintiff,
Clarence Thomas, timely filed an objection to the Report and Recommendation (Doc. 97).
Defendant, United States of America, filed a timely response to Plaintiff’s objection (Doc. 100).
On October 22, 2010, acting pro se, Plaintiff filed this lawsuit claiming constitutional
deprivations by persons acting under color of federal authority pursuant to Bivens v. Six Unknown
Named Agents, 403 U.S. 388 (1971). Plaintiff’s lawsuit also contains a claim for medical
malpractice under the FTCA, which is the claim at issue here.
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Under Illinois law, which applies to Plaintiff’s FTCA claims, a plaintiff bringing a claim
for medical malpractice must attach an affidavit with the complaint confirming Plaintiff has
consulted with a qualified health professional. 735 ILCS 5/2-622(a)(1). The affidavit must also
contain a written report from the health professional stating that she has reviewed the facts of the
case and determined “that there is a reasonable and meritorious cause for filing such action.” 735
ILCS 5/2-622(a)(1). On May 17, 2012, Magistrate Judge Wilkerson issued an Order to Show
Cause directing Plaintiff to file the certificate of merit (or an affidavit stating Plaintiff cannot
obtain the certificate) prior to the expiration of the statute of limitations period, which was June 18,
2012 (See Doc. 85). The Order to Show Cause (Doc. 85) warned Plaintiff a failure to comply
with the Order would result in a report and recommendation the FTCA claim be dismissed (See
Doc. 85). Plaintiff failed to file a certificate of merit or affidavit as required by the Order to Show
Cause (Doc. 85).
The Report and Recommendation accurately states the procedural history and facts. This
Order addresses only the conclusions of law to which Plaintiff has lodged specific objections.
Here, though, since timely objections have been filed, the Court must undertake a de novo review
of the Report and Recommendation. 28 U.S.C. § 636(b)(1)B), (C), FED. R. CIV. P.72(b); SDIL-LR
73(1)(b); Harper v. City of Chicago Heights 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also Govas
v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court “may accept, reject, or modify the
magistrate judge’s recommended decision.” Harper, 824 F. Supp. at 788. In making this
determination, the Court must look at all the evidence contained in the record and “give ‘fresh
consideration to those issues to which specific objections have been made.’” Id., quoting 12
Charles Alan Wright et al., Federal Practice and Procedure § 3076.8 at p.55 (1st ed. 1973) (1992

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Pocket Part) (emphasis added). However, where neither timely nor specific objections to the
Report and Recommendation are made, pursuant to 28 U.S.C. § 636(b), the Court need not
conduct a de novo review of the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140
(1985).
Here, Plaintiff cites his incarceration as the reason for failing to obtain a certificate of merit
prior to the expiration of the statute of limitations. Accordingly, Plaintiff’s objection to
Magistrate Judge Wilkerson’s Report and Recommendation focuses not on conclusions of law, but
on the recommended disposition of the FTCA claim. Plaintiff asks for an additional ninety days
so Plaintiff can come into compliance with 735 ILCS 5/2-622(a)(1).
This case was filed though in October of 2010. Plaintiff has had more than ample
opportunity to obtain the information required under Illinois law. The sole purpose of the Order
to Show Cause (Doc. 85) was to give Plaintiff one last opportunity to come into compliance with
735 ILCS 5/2-622(a)(1). Under Federal Rule of Civil Procedure 41(b) “[i]f the plaintiff fails to
prosecute or to comply with these rules or a court order, a defendant may move to dismiss the
action or any claim against it.” FED. R. CIV. P. 41(b). This Federal Rule of Procedure also allows
the court to dismiss a claim or action for failure to prosecute as part of the Court’s “inherent
power” to control its docket and “achieve the orderly and expeditious disposition of cases.”
James v. McDonald’s Corp., 417 F.3d 672, 681 (7th Cir. 2005)(quoting Link v. Wabash R.R. Co.,
370 U.S. 626, 630-31 (1962)). “Unless the dismissal order states otherwise, a dismissal under this
subdivision (b) . . . operates as an adjudication on the merits.” FED. R. CIV. P. 41(b).
The Court ADOPTS Magistrate Judge Wilkerson’s Report and Recommendation (Doc.
97). Plaintiff’s medical malpractice claim under the FTCA against the United States is

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DISMISSED with prejudice. Accordingly, Defendant’s motion to dismiss Plaintiff’s FTCA
claim (Doc. 80) is DENIED as MOOT.
IT IS SO ORDERED.

DATED: November 20, 2012
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G. PATRICK MURPHY
United States District Judge

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