Douds v. USA

Filing 6

ORDER: Defendant UTILIZATION REVIEW COMMITTEE is DISMISSED with prejudice; COUNT 2 is DISMISSED without prejudice; on or before February 16, 2015, Plaintiff shall file the required affidavit pursuant to 735 ILCS 5/2-622. If the required affidavit is not filed by the prescribed deadline, COUNT 1 will be dismissed without prejudice and the case will be closed. Signed by Judge Staci M. Yandle on 11/18/2014. (mmr )( Action due by 2/16/2015.)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RONALD E. DOUDS,
No. 44579-061,
Plaintiff,
vs.
USA, and,
UTILIZATION REVIEW COMMITTEE,
Defendants.

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Case No. 14-cv-01146-SMY

MEMORANDUM AND ORDER
YANDLE, District Judge:
Plaintiff Ronald E. Douds is an inmate in Greenville Correctional Center (“Greenville”).
He brings this action pursuant to the Federal Tort Claims Act (“FTCA”), 28 U.S.C. §§ 1346,
2671–2680, based on the alleged negligent provision of medical care while he has been at
Greenville.
This case is now before the Court for a preliminary review of the complaint pursuant to
28 U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in which
a prisoner seeks redress from a governmental entity or officer or employee of a
governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify cognizable claims
or dismiss the complaint, or any portion of the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief may be
granted; or
(2) seeks monetary relief from a defendant who is immune from such
relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.”
Neitzke v. Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers
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to a claim that “no reasonable person could suppose to have any merit.” Lee v. Clinton, 209 F.3d
1025, 1026-27 (7th Cir. 2000). An action fails to state a claim upon which relief can be granted
if it does not plead “enough facts to state a claim to relief that is plausible on its face.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must
cross “the line between possibility and plausibility. Id. at 557.

At this juncture, the factual

allegations of the pro se complaint are to be liberally construed. See Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
The Complaint
According to the complaint, in June 2010 Plaintiff Douds arrived at Greenville with
preexisting leg neuropathy, apparently stemming from a low-back injury. Between November
2010 and September 2012 Plaintiff sustained a series of injuries—most related to his back and
neuromuscular issues. Plaintiff sought treatment, but due to alleged medical malpractice and
delay his condition worsened, resulting in the loss of feeling and muscle function in his right leg,
increased back pain, and an increased risk of “future harm.”

In September 2011, almost two

years after he first sought treatment at Greenville, he was approved for micro-discectomy, which
doctors opined would have only a 50% chance of success.
The complaint and an attached memorandum (Docs. 1, 1-1, pp. 22-29) assert two claims:
Count 1: The United States, by and through the Bureau of Prisons and
Utilization Review Committee, committed medical malpractice by
failing to properly and timely diagnose and treat his medical
needs; and
Count 2: Evidence was spoiled and or records requested under the Freedom
of Information Act were denied, thereby interfering with and/or
delaying the administrative and legal processes.
The United States and the Utilization Review Committee are named as defendants.
Plaintiff seeks $1,500,000 in compensatory damages.
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Discussion
Federal prisoners may bring suit under the FTCA for injuries sustained through the
negligent acts of prison officials. Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003)
(discussing United States v. Muniz, 374 U.S. 150 (1963)). An FTCA claim may be brought for:
[P]ersonal injury ... 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.
Palay, 349 F.3d at 425 (citing 28 U.S.C. § 1346(b)(1)).
The Defendants
The United States of America is the only proper defendant to an FTCA action. See 28
U.S.C. § 2679(b); FDIC v. Meyer, 510 U.S. 471 (1994). In addition to the United States, the
complaint lists the Utilization Review Committee as a defendant. Therefore, the Committee will
be dismissed from this action with prejudice.
Count 1
In a medical malpractice action, a plaintiff must ultimately prove: (1) the proper standard
of care by which to measure the defendant’s conduct; (2) a negligent breach of the standard of
care; and (3) the resulting injury proximately caused by the defendant's lack of skill or care.
Susnis ex rel. Susnis v. Radfar, 739 N.E.2d 960, 96 (Ill. App. 1st Dist. 2000).
As a general matter, the allegations in the complaint support a colorable FTCA claim regarding
medical malpractice, but that does not end the Court’s review of Count 1.
Under Illinois law, a plaintiff “[i]n 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,” must file an affidavit along with the complaint, declaring one of the

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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 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 the records). See 735 ILCS 5/2-622(a) (West 2013).
Failure to file the required certificate is grounds for dismissal of the claim. See 735 ILCS
5/2-622(g); Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). However, whether such
dismissal should be with or without prejudice is up to the sound discretion of the court. Sherrod,
223 F.3d at 614. Similarly, “Illinois courts have held that when a plaintiff fails to attach a
certificate and report, then ‘a sound exercise of discretion mandates that [the plaintiff] be at least
afforded an opportunity to amend [his or her] complaint to comply with section 2-622 before [his
or her] action is dismissed with prejudice.’ ” Id.
In the instant case, Plaintiff has failed to file the necessary affidavit. Therefore, Plaintiff
will be given an opportunity to file the required affidavit. Without offering an opinion regarding
whether this action has been properly commenced within the two-year statute of limitations
period for filing an FTCA action (see E.Y. ex rel. Wallace v. United States, 758 F.3d 861 (7th
Cir. 2014) (applying the FTCA statute of limitations in a malpractice scenario and discussing the
accrual date), the Court cautions Plaintiff that it appears that time is of the essence. In any event,

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if Plaintiff fails to timely file the required affidavit by the prescribed deadline, Count 1 will be
dismissed without prejudice and this case will be closed.
Count 2
Count 2 is drawn from the memorandum attached to the complaint (Doc. 1-1, p. 22), not
from the complaint itself, which mentions no such claim (Doc. 1, p. 5). As framed by Plaintiff,
Count 2 asserts that evidence was spoiled and/or records requested under the Freedom of
Information Act were denied, thereby interfering with and delaying the administrative and legal
processes. However, the narrative portions of the complaint and memorandum offer no basis or
factual underpinnings for this claim. Thus, Count 2 fails to state a claim under the Twombly
pleading standard and Count 2 must be dismissed. Dismissal shall be without prejudice.
Disposition
IT IS HEREBY ORDERED that, for the reasons stated, Defendant UTILIZATION
REVIEW COMMITTEE is DISMISSED with prejudice from this FTCA action.
IT IS FURTHER ORDERED that COUNT 2 is DISMISSED without prejudice.
IT IS FURTHER ORDERED that, as to COUNT 1, the medical malpractice claim, on
or before February 16, 2015, Plaintiff shall file the required affidavit pursuant to 735 ILCS 5/2622. If the required affidavit is not filed by the prescribed deadline, COUNT 1 will be dismissed
without prejudice and the case will be closed.
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address.
IT IS SO ORDERED.
DATED: November 18, 2014
s/ Staci M. Yandle
United States District Judge

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