Barrow v. Wexford Health Sources, Inc. et al
Filing
80
ORDER GRANTING IN PART, DENYING IN PART, AND FINDING MOOT IN PART 41 Motion to Clarify; GRANTING IN PART AND DENYING IN PART 46 Motion for Subpoenas and Local Court Rules; GRANTING 59 Motion for Extension of Time to File; DENYING 59 Motio n Pursuant to 735 ILCS 5/2-622; GRANTING 62 Motion to Clarify; GRANTING IN PART AND DENYING IN PART 62 Motion for Miscellaneous Relief Instanter; GRANTING 70 Motion to Supplement; DENYING AS MOOT 70 Motion to Request Rulings on Pending Requests for Relief. See attached for details. Signed by Magistrate Judge Donald G. Wilkerson on 12/9/2014. (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 Clarification and Request for Missing Documents filed on October
2, 2014 (Doc. 41);
2. Motion for Subpoenas and Local Court Rules filed on October 6, 2014 (Doc.
46);
3. Motion Pursuant to 735 ILCS 5/2-622 Compliance or for Extension of Time
filed on October 20, 2014 (Doc. 59);
4. Motion for Clarification of Record and for Miscellaneous Relief Instanter filed
on October 27, 2014 (Doc. 62);
5. Motion to Submit Supplemental Notice of Filing/Certificate of Service and
Request for Rulings on Pending Requests for Relief filed on November 12,
2014 (Doc. 70)
Motion for Clarification and Request for Missing Documents (Doc. 41)
In this Motion, Plaintiff asks the Court for copies of various documents he claims he has
not yet received. More specifically, Plaintiff asserts that he has not received Documents 26
through 35, and pages 28 to 97 of his First Amended Complaint (Doc. 2). The Court notes that
Documents 26 through 34 were filed by Defendants Baker, Robert Shearing, J. Trost, and Wexford
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Health Sources, Inc., and Document 35 was an Order of the Court granting Defendants’ Motion for
Protective Order. Plaintiff seeks copies of these documents, as well as a copy of the docket sheet
so that he is aware of what documents have been filed in this case.
Defendants Baker, Shearing, Trost, and Wexford filed their Response to Plaintiff’s Motion
on October 7, 2014 (Doc. 47). Defendants’ counsel asserts that copies of their filings, Documents
26 through 34, including any proposed orders, were provided to Plaintiff, via U.S. mail, at his
address at Menard Correctional Center on September 30, 2014. Defendants further indicate that
courtesy copies of the same, including copies of the Court’s Orders at Document 35 and Document
36, were mailed to Plaintiff on October 7, 2014. Accordingly, the Court finds that Plaintiff’s
request for copies of Documents 26 through 35 is MOOT. With respect to pages 28 through 97
of Plaintiff’s Complaint, Plaintiff’s request for copies of these pages is DENIED. Plaintiff’s
Complaint (Doc. 2) consists of a total of 81 pages. Accordingly, it is unclear what documents
Plaintiff is referencing when he requests pages 28 through 97 of his Complaint. Moreover,
Document 2 is Plaintiff’s own filing and, as such, he should be fully aware of what is contained in
his own Complaint. Finally, Plaintiff’s request for a copy of the docket sheet is GRANTED. As
a courtesy, the Court will provide Plaintiff with a copy of the current docket sheet in this case.
Accordingly, the Clerk of Court is DIRECTED to send Plaintiff a copy of the docket sheet in this
case to his last known address. The Court notes, however, that it is not inclined to provide any
additional courtesy copies of the docket sheet, if Plaintiff is to seek any in the future.
Motion for Subpoenas and Local Court Rules (Doc. 46)
Plaintiff asks the Court to provide him with ten blank subpoenas, a copy of the Local Rules
for the Southern District of Illinois, and a receipt for all filing fee payments deducted from his
prison trust fund account. Plaintiff’s Motion is GRANTED IN PART AND DENIED IN
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PART.
With respect to Plaintiff’s request for ten blank subpoenas, the Clerk must issue subpoenas
on the request of a party. FED. R. CIV. P. 45(a)(3). However, the Court has an obligation to
protect persons subject to a subpoena and may preview subpoenas in order to ensure that the
Court’s subpoena power is not being abused. Fed. R. Civ. P. 26(b)(2)(C), 45(c); Marozsan v.
Untied States, 90 F.3d 1284, 1290 (7th Cir. 1996). As such, this request is GRANTED IN
PART, and the Clerk of Court is DIRECTED to provide Plaintiff with the requested number (10)
of subpoena forms, blank and unsigned. Plaintiff shall complete the forms and submit them to the
Court for review. Plaintiff shall take the appropriate steps to avoid imposing undue burden or
expense on a person subject to subpoena and shall restrict his requests to information that is
relevant to the claims or defenses.
With respect to Plaintiff’s request for a copy of the Local Rules, Plaintiff’s request is
DENIED. Plaintiff is ADVISED that there is a fee of $3.00 to obtain a copy of such. Therefore,
upon receipt of $3.00, the Clerk of Court will forward a copy of the Local Rules to Plaintiff.
Finally, with respect to Plaintiff’s request for a receipt for all filing fees paid, Plaintiff is
ADVISED that he has not been ordered to pay any filing fees in this case (14-cv-941-NJR-DGW)
as of December 4, 2014. However, Plaintiff has made the following payments in another, related
case pending in this District, captioned 14-cv-800-NJR-DGW:
1.
2.
3.
4.
5.
6.
7.
Paid fee of $34.57 on August 7, 2014
Paid fee of $20.44 on August 21, 2014
Paid fee of $60.00 on September 18, 2014
Paid fee of $3.13 on September 18, 2014
Paid fee of $2.40 on October 23, 2014
Paid fee of $3.84 on November 20, 2014
Paid fee of $40.00 on November 20, 2014
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Motion Pursuant to 735 ILCS 5/2-622 Compliance or for Extension of Time (Doc. 59)
In this Motion, Plaintiff asks the Court to either 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 an expert report so that he may comply with 735 ILCS 5/2-622.
In the Court’s Memorandum and Order dated August 28, 2014 (Doc. 1), the Court found
that Plaintiff’s Complaint asserted a medical negligence claim against Defendants Wexford,
Johnson, Lochhead, Trost, Shearing, Walls, and Baker. The Court noted that while it has
supplemental jurisdiction over this state law negligence claim, Plaintiff failed to provide the
necessary affidavit pursuant to 735 ILCS 5/2-622(a) (“Section 2-622”) to pursue this claim.
Accordingly, the Court ordered Plaintiff to file the necessary affidavit within 60 days of the date of
the Order. Plaintiff’s failure to do so, the Court warned, would result in the dismissal, without
prejudice, of Plaintiff’s state law medical negligence claim.
In the Motion currently pending, Plaintiff has provided evidence of his efforts to secure the
necessary affidavits. However, his efforts were to no avail. As such, Plaintiff asks the Court to
take judicial notice that one of Plaintiff’s treating physicians, Dr. Omar Ahmad, meets the
qualifications of a health care professional under Section 2-622, and rely on Dr. Ahmad’s
examination records as a substitute for the affidavit serving as a certificate of merit.
Defendants Wexford Health Sources, Inc., Dr. Robert Shearing, Dr. John Trost, and Dr.
Mark Baker filed a response to Plaintiff’s Motion on October 27, 2014 (Doc. 64). In their
response, Defendants assert that Plaintiff is attempting to forgo filing an affidavit and, in its place,
rely on the office records of his treating physician who declined to participate in this litigation.
Further, Defendants contend that the circumstances in this case do not justify an extension of time
to file the necessary affidavits.
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Defendant Dr. Christine Lochhead filed a response to Plaintiff’s Motion on October 27,
2014 (Doc. 65).
Defendant Lochhead asserts that Plaintiff should not be allowed to rely on the
materials from Dr. Ahmad, as his materials are insufficient to meet the requirements of Section
2-622. More specifically, Defendant Lochhead contends that Dr. Ahmad’s materials do not
establish any purported wrongdoing of any physician in this action. Further, Defendant Lochhead
points to the absence of any statements regarding wrongdoing with respect to the treatment of
Plaintiff’s right eye in Dr. Ahmad’s materials.
Although Defendant Lochhead objects to
Plaintiff’s attempt to use Dr. Ahmad’s materials as an affidavit in this matter, Defendant Lochhead
indicates that she has no objection to a short extension of time for Plaintiff to provide the necessary
affidavit.
The Court notes at the outset that Plaintiff’s Motion is well written and sets forth a
compelling argument. Although the Court certainly understands the difficulties Plaintiff is
having securing the affidavits required to comply with Section 2-622, it finds that Dr. Ahmad’s
materials are insufficient to meet the technical requirements of the Illinois Statute.
The purpose of Section 2-622 is to minimize frivolous malpractice suits. As such, a
plaintiff filing medical malpractice claims in Illinois must provide a physician’s certificate of merit
and accompanying report. Sherrod v. Lingle, 223 F. 3d 605, 613 (7th Cir. 2000). The certificate
must affirm that a qualified, licensed physician has reviewed the case and determined that “there is
a reasonable and meritorious cause for the filing of such action.” Id.; 735 ILCS § 5/2-622.
Further, a certificate and report must be filed “as to each defendant who has been named in the
complaint.” Id. Although Illinois courts liberally construe certificates of merit in favor of the
plaintiff, see Sherrod, 223 F. 3d at 615, in the circumstances presented here, the Court finds that
Dr. Ahmad’s materials, including a letter he sent to Plaintiff indicating he “would not feel
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comfortable serving as an expert witness,” and the examination records dated August 1, 2012 and
October 31, 2012, are insufficient to meet the requirements of Section 2-622. In particular, a
review of Dr. Ahmad’s materials reveals that there is no indication he reviewed Plaintiff’s case and
made any finding as to its reasonableness. Moreover, Dr. Ahmad makes no mention as to any of
the Defendants mentioned in Plaintiff’s Complaint. Accordingly, Plaintiff’s request that the
Court accept Dr. Ahmad’s materials as sufficient is DENIED. The Court notes that in his
Motion, Plaintiff relied on a decision by the Seventh Circuit Court of Appeals allowing a plaintiff
to use his surgeon’s report to support the reversal of a summary judgment. However, Plaintiff
failed to provide the citation for this opinion and, as such, the Court has been unable to review the
decision for any applicability it may have in this case.
Plaintiff has also requested that, in the alternative, the Court grant him an extension of time
to file the necessary affidavits required to support his medical malpractice claim. Plaintiff relies
on Section 2-622(a)(2) and (3) to support his request for an extension. Although the Court finds
that neither 2-622(a)(2) nor 2-622(a)(3) are applicable in this instance, it is inclined, in the interest
of justice, to grant Plaintiff additional time to file the necessary affidavits to support his medical
malpractice claim. Accordingly, Plaintiff’s request for an extension of time is GRANTED.
Plaintiff is granted an additional 45 days from the date of this Order to file the required
affidavit/certificates.
Motion for Clarification of Record and for Miscellaneous Relief Instanter (Doc. 62)
In this Motion Plaintiff asks that the Court either docket the 326 pages of exhibits that were
submitted in support of his complaint, or return them to Plaintiff. This request is GRANTED.
Plaintiff is ADVISED that the documents will be returned to Plaintiff via U.S. mail. The Clerk of
Court is DIRECTED to send the requested 326 pages of exhibits to Plaintiff’s last known address.
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Plaintiff further requests that a Pavey Hearing be set as soon as possible to resolve the issue
of exhaustion. Plaintiff is INFORMED that a Pavey Hearing will be set as soon as practicable.
Plaintiff asks the Court to clarify whether he must provide paper copies of his filings.
More specifically, Plaintiff suggests that if his filings are docketed electronically and provided to
all parties in this format, it is unreasonable to expect Plaintiff to send paper copies to all parties as
well. Plaintiff’s request for clarification is GRANTED. Pursuant to Rule 5(b)(3), if a local rule
so authorizes, a party may use the court’s transmission facilities to make service under Rule
5(b)(2)(E). In this District, electronic service of the “Notice of Electronic Filing” constitutes
service of the filed document and satisfies the certificate of service requirement. Accordingly,
Plaintiff is ADVISED that electronic filing with an accompanying “Notice of Electronic Filing” is
sufficient for certificate of services purposes and he need not mail paper copies of his filings to
Defendants.
Plaintiff also asks for the relief he requested in his Motion for Recruitment of Counsel
(Doc. 3). Plaintiff’s request is DENIED. Plaintiff is ADVISED that this Motion is still pending
before the Court and he will receive an Order on this Motion as soon as practicable.
Plaintiff asks the Court to notify him of whether any of the Defendants in this matter have
consented for the case to be heard before a Magistrate Judge. Plaintiff’s request is DENIED.
Plaintiff is ADVISED that such consents are confidential and the parties will only be notified of
the status of the consents if and when each party has filed a consent.
Further, Plaintiff asks the Court to order Attorneys Dugan and Tolbert to serve Defendant
Baker. Defendants Wexford, Shearing, Trost, and Baker responded to Plaintiff’s request (Doc.
67) and indicated that counsel entered an appearance and filed an answer on Defendant Baker’s
behalf with his verbal consent, thereby making personal service on him unnecessary.
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Accordingly, Plaintiff’s request for service on Defendant Baker through his attorneys is DENIED.
Plaintiff asks the Court for an order on his Motion for Clarification and Request for
Missing Documents (Doc. 41). Specifically, Plaintiff asks the Court to provide him with a copy
of the docket sheet. As detailed above, the Court has ruled on Plaintiff’s requests mentioned in
his Motion for Clarification. Accordingly, Plaintiff’s request is MOOT.
Plaintiff also asks the Court to grant him the relief he seeks in his Motion for Subpoenas
and Local Court Rules (Doc. 46). Again, as detailed above, the Court has ruled on Plaintiff’s
requests and, accordingly, Plaintiff’s request is MOOT.
Plaintiff further requests clarification as to why he has not received pages 357-474 of the
documents filed in this case. Plaintiff’s request for clarification is GRANTED. Plaintiff is
ADVISED that pages 357-467 were stricken by the Court as they were documents that are already
filed in this case (Doc. 53). Further, with respect to pages 468-474 that Plaintiff avers he is
missing, the Court notes that these page numbers correspond to the Motion for Protective Order
(Doc. 52) filed by Defendants Baker, Shearing, Trost, and Wexford. The Court finds that
Plaintiff filed an objection to Defendants’ Motion on October 27, 2014. Accordingly, it appears
that Plaintiff has received a copy of pages 468-474.
Finally, Plaintiff asks the Court to rule on his Motion for Extension of Time to Respond to
Defendants’ Multiple Filings (Doc. 57). Plaintiff’s request is MOOT. The Court determined
Plaintiff’s Motion for Extension of Time was moot on November 19, 2014 (Doc. 73), citing the
fact that Plaintiff had timely filed his responses to Defendants’ Motions.
Motion to Submit Supplemental Notice of Filing/Certificate of Service and
Request for Rulings on Pending Requests for Relief (Doc. 70)
In this Motion, Plaintiff asks the Court for leave to file a supplemental notice of
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filing/certificate of service as it relates to Document 41, Plaintiff’s reply to Defendant’s response
to Plaintiff’s Motion for Temporary Restraining Order (Doc. 69). The Court takes notice that
Plaintiff provided copies of his reply brief to the parties in this action. Accordingly, this relief is
GRANTED.
Plaintiff also asks the Court to grant him the relief he seeks in his Motion for Clarification
and Request for Missing Documents (Doc. 41). Specifically, Plaintiff asks the Court to provide
him with a copy of the docket sheet. As detailed above, the Court has ruled on Plaintiff’s requests
mentioned in his Motion for Clarification. Accordingly, Plaintiff’s request is MOOT.
Plaintiff also asks the Court to grant him the relief he seeks in his Motion for Subpoenas
and Local Court Rules (Doc. 46). Again, as detailed above, the Court has ruled on Plaintiff’s
requests and, accordingly, Plaintiff’s request is MOOT.
Further, Plaintiff asks the Court to deny the Motion for Protective Order (Doc. 52) filed by
Defendants Baker, Shearing, Trost, and Wexford Health Sources, Inc. Plaintiff is ADVISED that
although his objection was noted, the Court granted in part Defendants’ Motion for Protective
Order on November 19, 2014 (Doc. 72). Accordingly, Plaintiff’s request is DENIED.
Plaintiff asks the Court to rule on his Motion for Extension of Time to Respond to
Defendants’ Multiple Filings (Doc. 57). Plaintiff’s request is MOOT. The Court determined
Plaintiff’s Motion for Extension of Time was moot on November 19, 2014 (Doc. 73), citing the
fact that Plaintiff had timely filed his responses to Defendants’ Motions.
Finally, Plaintiff asks the Court to address the various requests he made in his Motion for
Clarification of Record and for Miscellaneous Relief Instanter (Doc. 62). As detailed above, the
Court has issued its rulings on Plaintiff’s various requests put forth in his Motion for Clarification
and, as such, this request is MOOT.
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IT IS SO ORDERED.
DATED: December 9, 2014
DONALD G. WILKERSON
United States Magistrate Judge
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