Smith v. Walton et al

Filing 131

MEMORANDUM AND ORDER, The Court ADOPTS the Report in its entirety (Doc. 119 ); OVERRULES Smiths objections (Doc. 126 ); GRANTS the United States motion to dismiss Count 1 of Smiths Second Amended Complaint (Doc. 52 ); DISMISSES Count 1 of Smiths Second Amended Complaint without prejudice; ORDERS that Smith shall have up to and including September 25, 2015, to file an amended pleading containing the affidavit and medical professionals report as required by 735 ILCS 5/2-622; and WARNS Smith t hat the Court will dismiss his FTCA claim against the United States (Count 1) with prejudice without further warning should he fail to file an amended pleading containing the required affidavit and medical professionals report. Signed by Judge J. Phil Gilbert on 8/26/2015. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
THOMAS M. SMITH,
Plaintiff,
v.

Case No. 14-cv-514-JPG-SCW

JEFFERY S. WALTON, M. WINKLMEIER, M.
BAGWELL, D. SZOKE, ROBERT KING, PAUL
HARVEY, LESLEE DUNCAN BROOKS, FERNANDO
CASTILLO, BENJAMIN CULLERS, PATRICK
CUNNINGHAM, J. SMITH, D. HUGGINS, J. DAVID,
C. BROOKS, ERIC EDMISTER, MICHELLE DAUN,
ROBYN BRYSON, E. GARCIA, D. SPROUL, H.
CLARK, STEIMETZ, J. WEBBER and UNITED
STATES OF AMERICA,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
119) of Magistrate Judge Magistrate Judge Stephen C. Williams recommending that the Court
grant the motion to dismiss Count 1 filed by the defendant United States of America (Doc. 52) and
allow plaintiff Thomas M. Smith 30 days to replead. Smith objects to the Report (Doc. 126), and
the United States has filed a response to that objection (Doc. 128).
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are made.
Id. “If no objection or only partial objection is made, the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
The Court has reviewed the matter de novo and agrees that Count 1 should be dismissed

without prejudice and that he should be allowed an opportunity to remedy the shortcoming. In
Count 1, Smith has sued the United States under the Federal Tort Claims Act (“FTCA”), 28 U.S.C.
§§ 1346(b) & 2671-80, alleging it is liable for the negligence of federal employees at the United
States Penitentiary at Marion, Illinois (“USP-Marion”), for denying him medical care. The
FTCA is a limited waiver of the Government’s sovereign immunity. It gives federal courts
exclusive jurisdiction of civil actions on claims against the United States, for
money damages . . . for injury or loss of property, or personal injury or death caused
by the negligent or wrongful act or omission of any employee of the Government
while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in
accordance with the law of the place where the act or omission occurred.
28 U.S.C. § 1346(b)(1). It allows the United States to be held liable for tort claims “in the same
manner and to the same extent as a private individual under like circumstances. . . .” 28 U.S.C.
§ 2674; see United States v. Muniz, 374 U.S. 150, 153 (1963); Augutis v. United States, 732 F.3d
749, 752 (7th Cir. 2013), cert. denied, 135 S. Ct. 53 (2014). To determine how a private
individual would be treated, the Court must apply the substantive law of the state where the act or
omission occurred.

FDIC v. Meyer, 510 U.S. 471, 478 (1994); Augutis, 732 F.3d at 752. The

acts or omissions alleged in this case occurred at USP-Marion, so Illinois substantive law applies.
Where a plaintiff sues the United States for the medical negligence of its employees in
Illinois under 735 ILCS 5/2-622, Illinois law requires a plaintiff to file an affidavit either (1)
indicating he has consulted with a medical professional who has written a report deeming his claim
is meritorious or (2) indicating that the plaintiff was unable to obtain a report prior to the expiration
of the statute of limitations. 735 ILCS 5/2-622(a) (as amended by P.A. 90-579, effective May 1,
1998). The medical professional’s report must accompany the affidavit or, if the report was
unavailable at the time, must be filed within 90 days after the complaint is filed. Id. The failure
to file the required affidavit is grounds for dismissal. 735 ILCS 5/2-622(g) (as amended by P.A.
2

90-579, effective May 1, 1998). This is a substantive requirement of Illinois law. See Hahn v.
Walsh, 762 F.3d 617, 629-33 (7th Cir. 2014) (diversity jurisdiction context), cert. denied, 135 S.
Ct. 1419 (2015); Murphy v. United States, No. 3:08-cv-745-JPG-DGW, 2010 WL 3310258 (S.D.
Ill. Aug. 19, 2010) (FTCA context). Because Smith has not filed the required affidavit and report,
the Court must dismiss his FTCA claim against the United States, although it may allow him leave
to amend his pleading to correct the omission. See Sherrod v. Lingle, 223 F.3d 605, 614 (7th Cir.
2000).
In his objection, Smith notes that the Court told him earlier in this case that an FTCA claim
does not require a certificate of merit from a medical professional (Doc. 37). While the FTCA
itself does not require a certificate of merit per se, FTCA claims asserting medical negligence
under Illinois law do, and the Court misspoke if it said otherwise. Because Smith may have been
misled, the Court will dismiss his FTCA claim without prejudice and allow him 30 additional days
to submit the required affidavit and expert report.
Smith also asks for the Court to excuse him from the certificate of merit requirement
because it will be difficult, if not impossible, for him to conduct the required consultation and
obtain the required report while he is in federal prison. While the Court has some sympathy for
Smith’s position, it cannot relieve him of the obligation imposed by Illinois law.
Smith further contends this case should not be dismissed for failure to exhaust
administrative remedies because the Bureau of Prisons impeded his pursuit of an administrative
remedy and because he was in imminent danger needing immediate court intervention.
Magistrate Judge Williams did not rely on Smith’s failure to exhaust in his recommendation, so
Smith’s objections in this regard are irrelevant.
Finally, Smith argues this case is not of a medical nature such that the requirement for a

3

certificate of merit from a medical professional applies. On the contrary, he claims, this case only
involves the simple question of whether medication was given at the proper time of day. Smith is
wrong. The certificate of merit requirement applies to “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.” 735 ILCS 5/2-622(a). A “healing art malpractice” case is one
in which the standard of care must be established by expert medical testimony. Kolanowski v.
Illinois Valley Cmty. Hosp., 544 N.E.2d 821, 823-24 (Ill. App. Ct. 1989). The correct standard of
care for medical treatment, including administering medication, would require expert medical
testimony, see, e.g., Brooks v. Leonardo, 561 N.E.2d 1095, 1098 (Ill. App. Ct. 1990); Gasbarra v.
St. James Hosp., 406 N.E.2d 544, 549 (Ill. App. Ct. 1979), so this is a “healing art malpractice”
case that requires a certificate of merit.
For the foregoing reasons, the Court:


ADOPTS the Report in its entirety (Doc. 119);



OVERRULES Smith’s objections (Doc. 126);



GRANTS the United States’ motion to dismiss Count 1 of Smith’s Second Amended
Complaint (Doc. 52);



DISMISSES Count 1 of Smith’s Second Amended Complaint without prejudice;



ORDERS that Smith shall have up to and including September 25, 2015, to file an
amended pleading containing the affidavit and medical professional’s report as required by
735 ILCS 5/2-622; and



WARNS Smith that the Court will dismiss his FTCA claim against the United States
(Count 1) with prejudice without further warning should he fail to file an amended
pleading containing the required affidavit and medical professional’s report.

IT IS SO ORDERED.
DATED: August 26, 2015
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
4