Barrow v. Wexford Health Sources, Inc. et al
Filing
111
ORDER GRANTING IN PART AND DENYING IN PART 75 Motion for Leave to File; DENYING 76 Motion for Notification as Relates to Doc. 74; DENYING 76 Motion for Order; DENYING 81 Motion for Ruling on Pending Motions; DENYING 81 Motion for Heari ng; DENYING 83 Motion for Final Decision to Resolve 735 ILCS 5/2-622 or Motion for Alternative Relief; FINDING AS MOOT 101 Motion to Copy; GRANTING IN PART 108 Motion to Clarify; DENYING 108 Motion for Order. See attached order for further details. Signed by Magistrate Judge Donald G. Wilkerson on 4/10/2015. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD BARROW,
Plaintiff,
v.
WEXFORD HEALTH SOURCES, INC., et
al.,
Defendants.
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Case No. 3:14-cv-941-NJR-DGW
ORDER
WILKERSON, Magistrate Judge:
Now pending before the Court are the following motions filed by Plaintiff, Ronald Barrow:
1. Motion for Leave to File Amended/Supplemental Complaint against All
Defendants filed on November 25, 2014 (Doc. 75);
2. Motion for Notification as Relates to Doc. 74 and Request for Scheduling and
Discovery Order filed on December 1, 2014 (Doc. 76);
3. Motion for Ruling on Pending Motions Filed by Plaintiff Instanter filed on
January 7, 2015 (Doc. 81);
4. Motion for Final Decision to Resolve 735 ILCS 5/2-622 or Motion for
Alternative Relief filed on January 14, 2015 (Doc. 83);
5. Motion for Copy of Civil Docket Sheet filed on March 9, 2015 (Doc. 101); and
6. Motion for Clarification, Motion for Ruling on Pending Pleadings filed on
March 31, 2015 (Doc. 108).
The Court has reviewed the above-mentioned motions and any responses filed thereto and finds as
follows:
1. Motion for Leave to File Amended/Supplemental Complaint (Doc. 75).
Plaintiff is currently proceeding on a deliberate indifference claim against Defendants
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Johnson, Lochhead, Trost, Shearing, Walls, Baker, and Wexford for failing to provide adequate
care for his eye conditions. In his Motion to Amend, Plaintiff seeks to add allegations relating to
his deliberate indifference claim that occurred after the filing of his complaint and also seeks to
add two state law claims. In particular, Plaintiff seeks to add two claims of negligence, the first
based on “failure to train employees amounting to institutional negligence” and the second based
on the theory of res ipsa loquitur.
Federal Rule of Civil Procedure 15 provides that this Court may grant leave to amend a
complaint and that leave should be freely given. However, leave may be denied if there has been
undue delay or because of futility of the amendment. Bausch v. Stryker Corp., 630 F.3d 546, 562
(7th Cir. 2010). The claims founded in negligence that Plaintiff is attempting to bring are unclear.
Plaintiff offers no substantive argument as to what these claims are or what state law or statutory
authority permits such claims. However, the Court finds that justice so requires Plaintiff be
granted leave to include additional allegations to support his deliberate indifference claim.
Accordingly, Plaintiff’s Motion to Amend is GRANTED IN PART AND DENIED IN PART.
Plaintiff is permitted to amend his complaint to include allegations numbered “S-183” through
“S-210”; however, Plaintiff’s request to add two additional state claims is denied. The Clerk of
Court is DIRECTED to file Plaintiff’s proposed amended complaint as the First Amended
Complaint.
2. Motion for Notification as Relates to Doc. 74 and Request for Scheduling and
Discovery Order (Doc. 76).
The Court construes this filing as a Motion for Ruling on Plaintiff’s reply to Defendants’
response to his motion asking the Court to find that he has technically complied with the
requirements of 735 ILCS 5/2-622 or, in the alternative, grant him an extension of time to proffer
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an expert report so that he may comply with 735 ILCS 5/2-622 (Doc. 59). Plaintiff is ADVISED
that the Court does not issue orders in response to replies. Plaintiff is INFORMED that this
Court issued an Order on December 9, 2014 denying Plaintiff’s request that the Court find he has
technically complied with the requirements of 735 ILCS 5/2-622 and granting him additional time,
up to and including January 23, 2015, to proffer an expert report. In making such determination,
the Court duly considered Plaintiff’s reply and no further action regarding Document 74 is
required. As such, Plaintiff request for a ruling on his reply is DENIED.
Plaintiff also included a request that the Court issue a scheduling and discovery order in
this case. The Court manages its docket as it deems necessary. Accordingly, Plaintiff’s request
is DENIED. Plaintiff is INFORMED, however, that the undersigned entered a scheduling order
in this case on January 7, 2015.
3. Motion for Ruling on Pending Motions Filed by Plaintiff Instanter (Doc. 81).
In this Motion, Plaintiff makes the following requests: (1) that the Court schedule a Pavey
Hearing in this matter; (2) that the Court issue an order on his pending motion for preliminary
injunction; and (3) that the Court rule on his motion for leave to file an amended complaint (Doc.
75) and all other pending motions. Plaintiff’s requests are DENIED. The Court manages its
docket as it deems necessary. Plaintiff is advised that the Court will respond to his motions as
expeditiously as possible.
4. Motion for Final Decision to Resolve 735 ILCS 5/2-622 or Motion for Alternative
Relief (Doc. 83).
In this Motion, Plaintiff seeks a “final decision” to resolve issues related to the affidavit
requirement set forth in 735 ILCS 5/2-622. Plaintiff has brought forth numerous subparts in this
motion regarding issues pertaining to his requirement to obtain an affidavit to proceed on his
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medical malpractice claim.
The Court declines to address each subpart.
However, for
clarification, the Court explains that in District Judge Rosenstengel’s screening order (Doc. 1), the
Court found that Plaintiff had asserted a medical negligence claim against Defendants Wexford,
Johnson, Lochhead, Trost, Shearing, Walls, and Baker. As stated in the screening order, this
claim arises under Illinois state law, not federal law. Under Illinois law, a Plaintiff must file an
affidavit along with the complaint, declaring one of the following: (1) that the affiant has consulted
and reviewed the facts of the case with a qualified health professional who has reviewed the claim
and made a written report that the claim is reasonable and meritorious (and the written report must
be attached to the affidavit); (2) that the affiant was unable to obtain such a consultation before the
expiration of the statute of limitations, and the affiant has not previously voluntarily dismissed an
action based on the same claim (and in this case, the required written report shall be filed within 90
days after the filing of the complaint); or (3) that the plaintiff has made a request for records but the
respondent has not complied within 60 days of receipt of the request (and in this case the written
report shall be filed within 90 days of receipt of records). See 735 ILL. COMP. STAT. §5/2-622(a).
In Judge Rosenstengel’s screening order, Plaintiff was warned that his failure to file the
required certificate within 60 days of the date of the Order would result in dismissal, without
prejudice, of his medical malpractice claim. On October 20, 2014, Plaintiff requested that the
Court find that he had either technically complied with the requirements of 735 ILCS 5/2-622 or,
in the alternative, grant him an extension of time to proffer an expert report. The undersigned
found that Plaintiff had not technically complied with the statutory requirements, but granted
Plaintiff an extension of 45 days, until January 23, 2015 to file the required affidavit (Doc. 80).
The Court’s decision with respect to these matters was not preliminary. Accordingly, it appears
that Plaintiff is asking the Court to reconsider its decision. The Court has reviewed Plaintiff’s
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arguments and finds that Plaintiff has not set forth a substantial reason why the Court should
reconsider its ruling. Accordingly, Plaintiff’s Motion for Final Decision is DENIED.
5. Motion for Copy of Civil Docket Sheet (Doc. 101)
Plaintiff seeks a copy of the docket sheet in this matter. Plaintiff avers he submitted a
$5.00 money voucher addressed to the Court to cover the cost of the docket sheet. The Court
notes that the Clerk of Court sent Plaintiff a docket sheet on March 26, 2015 (see Doc. 108, p. 1).
Accordingly, Plaintiff’s Motion is MOOT.
6. Motion for Clarification of Record and Motion for Ruling on Plaintiff’s Pending
Pleadings (Doc. 108).
In this Motion, Plaintiff requests the following: (1) a ruling on his pending motions (Docs.
75, 76, 81, 83); (2) a Pavey Hearing; (3) clarification as to whether District Judge Rosenstengel’s
Order at Document 100 is a final decision; (4) a ruling on his objection to the undersigned’s denial
of his request for appointment of counsel at Document 105; and (5) clarification of rules regarding
electronic filing as it applies to this case. Plaintiff also objects to having to pay for copies of his
docket sheet in this case.
Plaintiff’s requests for rulings on particular motions and his request that the Court set a
Pavey Hearing are DENIED. The Court manages its docket as it deems necessary. Plaintiff is
advised that the Court will respond to his motions as expeditiously as possible. Plaintiff’s filing
of motions requesting rulings on motions already pending only impedes the Court’s ability to
expeditiously address his substantive requests.
Plaintiff’s request for clarification regarding Judge Rosenstengel’s Order at Document 100
is GRANTED. Plaintiff is ADVISED that this is a final order of the Court with respect to his
motion for preliminary injunction.
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The Court notes that Plaintiff has objected to the undersigned’s denial of his motion to
recruit counsel. Plaintiff argues that the undersigned indicated he would attempt to recruit him
counsel in this matter and another pending matter (14-cv-800) at a Pavey Hearing held in
14-cv-800. After the conclusion of the hearing, the Court further considered Plaintiff’s request,
and determined that recruitment of counsel is not warranted at this time, as stated in the Court’s
Order at Document 105. Having reviewed the objections Plaintiff sets forth in Document 107, the
Court concludes that Plaintiff has not presented a substantial reason why the Court should
reconsider its ruling. Accordingly, Plaintiff’s objection to the Court’s ruling on his motion to
appoint counsel is DENIED.
With regard to Plaintiff’s complaints about the electronic filings in this case, Plaintiff’s
request is DENIED WITHOUT PREJUDICE. Plaintiff failed to produce a copy of the order he
is seeking clarification on and, as such, the Court is unable to address his request for clarification.
Finally, Plaintiff’s objection to having to pay for copies of the docket sheet in this matter is
noted. Plaintiff is ADVISED that the Court is not required to provide courtesy copies of
documents filed in this case, including copies of docket sheets. As published in the Court’s pro se
litigant’s handbook, copies of documents cost $0.50 per page.
CONCLUSION
In reviewing Plaintiff’s numerous motions, it is apparent to the undersigned that Plaintiff
consistently includes many subparts and various requests for relief in each of his motions.1 This
matter of motion practice has become untenable for the Court.
Accordingly, Plaintiff is
ADVISED that any further motions SHALL include only one specific request for relief so that the
1
See Document 105, wherein Plaintiff makes requests that are broken into approximately ten
subparts, each requesting different relief from the Court.
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Court may address his request more expeditiously. Importantly, Plaintiff is not limited in his
ability to file various motions, but only in his ability to include numerous requests in one motion.
Plaintiff’s failure to follow the direction of the Court on this matter will result in a summary denial,
without prejudice, of his motion and he will be directed to follow the directions of the Court, as set
forth above.
IT IS SO ORDERED.
DATED: April 10, 2015
DONALD G. WILKERSON
United States Magistrate Judge
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