Green v. USA

Filing 45

ORDER re 42 Amended Complaint filed by Nathaniel Green, GRANTING 43 MOTION for Extension of Time to File Answer re 42 Amended Complaint filed by USA. Defendant USA's response to Plaintiff's Second Amended Complaint d ue by October 9, 2015. The Clerk of Court shall prepare for Defendants Timothy Adesanya, Nurse Goldstein, Mike Varnum, and Jack R. Oak, M.D.: (1) Form 5 (Notice of a Lawsuit and Request to Waiver Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). Signed by Magistrate Judge Donald G. Wilkerson on 8/27/2015. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
NATHANIEL GREEN,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 3:14-cv-119-NJR-DGW

ORDER
WILKERSON, Magistrate Judge:
Before the Court is Plaintiff’s Second Amended Complaint (Doc. 42), which the Court
construes as a Motion for Leave to File an Amended Complaint, and Defendant’s Motion for
Extension of Time to File an Answer (Doc. 43). For the reasons set forth below, Plaintiff’s
Motion for Leave to File is GRANTED and Defendant’s Motion for Extension of Time (Doc. 43)
is GRANTED.
On December 1, 2014, Plaintiff, through his recruited counsel, filed an Amended
Complaint that the Court construed as a motion for leave to file an amended complaint (Doc. 31).
Plaintiff’s motion was granted in part and denied in part (Doc. 37). Specifically, the Court found
that Plaintiff’s proposed amended complaint stated a cognizable deliberate indifference claim
against Nurse Goldstein, Nurse Mike Varnum, and Physician Assistant Timothy Adesanya. The
Court also found that Plaintiff’s proposed claim for deliberate indifference against the United
States was barred by sovereign immunity and, as such, denied his request for leave to bring such a
claim. Plaintiff was directed to file his amended complaint, including only those claims and
defendants the Court indicated could proceed in this action.
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On July 2, 2015, Plaintiff filed his Second Amended Complaint, which is now before the
Court as a motion for leave to file an amended complaint, as Plaintiff seeks to add additional
claims that have not been screened by the Court. In his proposed Second Amended Complaint,
Plaintiff seeks leave to add claims against the United States of America for negligence in failing to
provide Plaintiff with adequate medical care and failing to properly supervise employees.
Plaintiff also seeks to add Dr. Jack R. Oak as a defendant in this action, setting forth a claim of
medical malpractice. Attached to Plaintiff’s proposed second amended complaint is the affidavit
of Plaintiff’s attorney Catherine Goldhaber, which complies with the provisions of 735 ILCS §
5/2-622.
Federal Rule of Civil Procedure 15(a) states that a party may amend a pleading and leave to
amend should be freely given “when justice so requires”. The Seventh Circuit liberally allows
amendment of pleadings “so that cases may be decided on the merits and not on the basis of
technicalities.” Stern v. U.S. Gypsum, Inc., 547 F.2d 1329, 1334 (7th Cir. 1977). This Circuit
recognizes “the complaint merely serves to put the defendant on notice and is to be freely amended
or constructively amended as the case develops, as long as amendments do not unfairly surprise or
prejudice the defendant.” Toth v. USX Corp., 883 F.2d 1297, 1298 (7th Cir. 1989).

A court may

deny a party leave to amend if there is undue delay, dilatory motive or futility. Guise v. BMW
Mortgage, LLC, 377 F.3d 795, 801 (7th Cir. 2004).
The Court finds that the claims set forth in Plaintiff’s proposed second amended complaint
are neither unduly delayed nor futile.

Accordingly, justice so requires that Plaintiff be

GRANTED leave to file his second amended complaint. The Court notes that the Second
Amended Complaint has already been filed; thus, it need not be refiled. Plaintiff’s Second
Amended Complaint is now the operative complaint in this matter. Defendant United States of
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America is GRANTED an extension of time, up to and including October 9, 2015, to answer or
otherwise respond to Plaintiff’s Second Amended Complaint.
The Clerk of Court shall prepare for Defendants Timothy Adesanya, Nurse Goldstein,
Mike Varnum, and Jack R. Oak, M.D.: (1) Form 5 (Notice of a Lawsuit and Request to Waive
Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). The Clerk is
DIRECTED to mail these forms, a copy of the Second Amended Complaint, and this Order to
Defendants’ place of employment as identified by Plaintiff. If Defendants fail to sign and return
the Waiver of Service of Summons (Form 6) to the Clerk within 30 days from the date the forms
were sent, the Clerk shall take appropriate steps to effect formal service on Defendants, and the
Court will require Defendants to pay the full costs of formal service, to the extent authorized by the
Federal Rules of Civil Procedure. Plaintiff shall serve upon Defendants (or upon defense counsel
once an appearance is entered), a copy of every further pleading or other document submitted for
consideration by the Court. Plaintiff shall include with the original paper to be filed a certificate
of service stating the date on which a true and correct copy of any document was served on
Defendant or counsel. Any paper received by a district judge or magistrate judge that has not
been filed with the Clerk or that fails to include a certificate of service will be disregarded by the
Court.
IT IS SO ORDERED.
DATED: August 27, 2015
DONALD G. WILKERSON
United States Magistrate Judge

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