Harris v. Larson et al

Filing 64

MEMORANDUM AND ORDER. Signed by Judge J. Phil Gilbert on 12/8/2015. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DARIUS HARRIS,
Plaintiff,
v.

No. 15-cv-252-JPG-DGW

DR. DENNIS LARSON, DR. VIPIN SHAH, GARY
GERST, DAN VAREL, ZACHARY ROECKEMAN,
WEXFORD HEALTH SOURCES, INC., NURSE L.
BRADBURY, DR. RITZ, LESLIE MCCARTHY,
GLADYSE C. TAYLOR and ILLINOIS DEPARTMENT
OF CORRECTIONS,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 60) of
Magistrate Judge Donald G. Wilkerson recommending that the Court dismiss plaintiff Darius Harris’s
Amended Complaint without prejudice for failure to comply with Federal Rule of Civil Procedure 8
(Doc. 44), deny as moot Harris’s motion for leave to file a second amended complaint in light of his
motion for leave to file a third amended complaint (Doc. 30) and grant in part Harris’s motion for leave
to file the third amended complaint to allow three of the seven claims pled to move forward (Doc. 45).
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).
Harris has objected to the Report (Doc. 61) and has also filed a motion for leave to file a fourth
amended complaint (Doc. 63). In his objection, Harris faults Magistrate Judge Wilkerson for
considering the proposed Third Amended Complaint before it was actually filed. This procedure was
appropriate because under Federal Rule of Civil Procedure 15(a), Harris needed leave of court before

filing the Third Amended Complaint. Magistrate Judge Wilkerson correctly conducted the review
under Rule 15(a) at the same time he conducted the review under 28 U.S.C. § 1915A(a) to arrive at his
recommendations in the Report to allow an amended pleading but only with three of the counts pled.
As to the substance of the Report, Harris objects to the recommendation to dismiss four of the
counts from the proposed Third Amended Complaint. However, as noted above, in the meantime he
has sought leave to file a Fourth Amended Complaint, which is identical to the Third Amended
Complaint except that it contains (1) a new page 9 that adds a claim against Gladyse Taylor for deliberate
indifference to his medical needs by failing to remedy Harris’s grievance and (2) affidavits from Harris
stating that with respect to his medical negligence/malpractice claims against defendants Wexford
Health Sources, Inc. (“Wexford”), Larson, Shah, Taylor and Bradbury he has been unable to obtain the
doctors report required to be attached to the complaint before the expiration of the statute of limitations
and he has not previously voluntarily dismissed an action based on those claims, see 735 ILCS
§ 5/2-622(a)2.
Harris does not object to Magistrate Judge Wilkerson’s recommendation to dismiss the Amended
Complaint without prejudice (Doc. 44) or to deny the motion for leave to file the Second Amended
Complaint as moot (Doc. 30). Those recommendations are not clearly erroneous, so the Court will
adopt them.
In light of the fact that Harris now seeks to file the Fourth Amended Complaint, the Court will
further find the motion for leave to file the Third Amended Complaint (Doc. 45) is moot for the same
reasons as his motion for leave to file the Second Amended Complaint is moot.
Finally, the Court considers Harris’s motion for leave to file the Fourth Amended Complaint.
The Court considers the motion under the standards of Rule 15(a) and 28 U.S.C. § 1915A(a). That

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pleading contains the following claims:
Count 1: Eighth Amendment claim for deliberate indifference to his serious medical
needs related to his knee and finger injury against Defendants Dennis Larson and Vipin
Shah beginning in August, 2010.
Count 2: Eighth Amendment claim for deliberate indifference to his serious medical
needs related to his knee and finger injury in August 2010 against Defendant Nurse L.
Bradbury.
Count 3: Eighth Amendment claim for deliberate indifference to his serious medical
needs related to his knee injury against Defendant Dr. Ritz for failing to approve an MRI
prior to June 5, 2015.
Count 4: State law medical malpractice claims against Defendants Drs. Larson, Shah,
and Ritz.
Count 5: Defendants Leslie McCarthy and Gladyse C. Taylor failed to respond or act on
grievance or appeal filed regarding Plaintiff’s medical care.
Count 6: Defendant Wexford Health Sources, Inc. failed to adequately manage its
employees and has unconstitutional policies and practices.
Count 7: Defendants Gladyse C. Taylor, the Illinois Department of Corrections, and
Wexford Health Sources, Inc., are negligent in providing health care and are the
equivalent of hospitals.
For the reasons Magistrate Judge Wilkerson set forth in the Report as to the proposed Third
Amended Complaint, Counts 1, 2 and 3 of the proposed Fourth Amended Complaint will be allowed to
proceed.
Magistrate Judge Wilkerson recommended dismissal of Counts 4 and 7 of the Third Amended
Complaint because they did not contain the affidavit required by 735 ILCS § 5/2-622(a). Harris’s
Fourth Amended Complaint has remedied that deficiency as to some defendants but suffers from the
same flaw as to others. It contains sufficient affidavits as to defendants Wexford, Larson, Shah and
Taylor. Therefore, the Court will allow Count 4 to proceed against Larson and Shah and Count 7 to
proceed against Taylor and Wexford. Harris has 90 days from the date the Fourth Amended Complaint
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is filed to file a written report from a qualified health professional stating that the claims against each
defendant in Counts 4 and 7 are reasonable and meritorious. 735 ILCS § 5/2-622(a)2. The Court will
dismiss without prejudice Count 4 against Ritz and Count 7 against the Illinois Department of
Corrections for failure to attach the affidavit required by 735 ILCS § 5/2-622(a).
As for Counts 5 and 6, having considered Harris’s arguments in his objections on these issues,
the Court dismisses Counts 5 and 6 for the reasons stated in the Report.
Accordingly, the Court hereby:


ADOPTS the Report (Doc. 60) as MODIFIED by this order;



OVERRULES Harris’s objections (Doc. 61);



DISMISSES without prejudice Harris’s Amended Complaint (Doc. 44);



DENIES as moot Harris’s motion for leave to file a second amended complaint (Doc. 30) and
motion for leave to file a third amended complaint (Doc. 45);



GRANTS Harris’s motion for leave to file the Fourth Amended Complaint (Doc. 63) and
DIRECTS the Clerk of Court to file the pleading tendered with this motion;



ORDERS that Harris shall be allowed to proceed on the following counts:
o Count 1: Eighth Amendment claim for deliberate indifference to his serious
medical needs related to his knee and finger injury against Defendants Dennis
Larson and Vipin Shah beginning in August, 2010.
o Count 2: Eighth Amendment claim for deliberate indifference to his serious
medical needs related to his knee and finger injury in August 2010 against
Defendant Nurse L. Bradbury.
o Count 3: Eighth Amendment claim for deliberate indifference to his serious
medical needs related to his knee injury against Defendant Dr. Ritz for failing to
approve an MRI prior to June 5, 2015.
o Count 4: State law medical malpractice claims against Defendants Drs. Larson
and Shah.
o Count 7: Defendants Gladyse C. Taylor and Wexford Health Sources, Inc., are
negligent in providing health care and are the equivalent of hospitals.
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o Dr. Roeckeman remains in this suit solely for the purpose of perfecting injunctive
relief.


ORDERS that Harris shall have 90 days from the date the Fourth Amended Complaint is filed to
file a written report from a qualified health professional stating that the claims against each
defendant in Counts 4 and 7 are reasonable and meritorious. The failure to file a timely and
adequate report may result in dismissal of Counts 4 and 7 without further warning;



DISMISSES without prejudice Count 4 against Ritz and Count 7 against the Illinois
Department of Corrections;



DIRECTS the Clerk of Court to prepare and mail Notice of Lawsuit and Waiver of Summons for
Ritz, Nurse Bradley and Wexford;



DIRECTS the Clerk of Court to correct defendant Shah’s name on the docket to “Vipin Shah,”
not “Shah Vipin” and to terminated McCarthy, Arthur Funk and the Illinois Department of
Corrections from this suit;



DENIES as moot:
o Shah’s motion to dismiss (Doc. 52) in light of the Fourth Amended Complaint, which
supersedes the pleading to which the motion is directed;
o Harris’s motions for appointment of counsel (Docs. 46, 51) in light of his most recent
motion for appointment of counsel; and
o Harris’s motion for status (Doc. 48) in light of this order; and



DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.

IT IS SO ORDERED.
DATED: December 8, 2015
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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