Stoces v. Obasi et al

Filing 61

ORDER DENYING 58 Motion to Dismiss for Failure to State a Claim. Signed by Magistrate Judge Donald G. Wilkerson on 2/2/2017. (nms)THIS TEXT ENTRY IS AN ORDER OF THE COURT. NO FURTHER DOCUMENTATION WILL BE MAILED.

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT STOCES,

)
)
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Plaintiff,
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v.
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DR. SALEH OBAISI, DR. JILL WAHL, DR. )
)
DENNIS LARSON, and WEXFORD
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HEALTH SOURCES, INC.,
)
)
Defendants.

Case No. 3:15-cv-277-DGW

ORDER
WILKERSON, Magistrate Judge:
Plaintiff, Robert Stoces, an inmate in the custody of the Illinois Department of Corrections
(“IDOC”), filed this lawsuit pursuant to 42 U.S.C. § 1983 on March 11, 2015 alleging his
constitutional rights were violated while he was incarcerated at Logan Correctional Center. More
specifically, Plaintiff’s complaint alleges that Defendants, Drs. Obaisi, Wahl, and Larson, and
their employer, Wexford Health Sources, Inc., failed to diagnose and treat his colon cancer in a
timely manner, causing his cancer to spread.
On February 2, 2016, the Court assigned Attorney Jason Andrew Charpentier to represent
Plaintiff in this matter. Following Attorney Charpentier’s appointment, he filed a motion, on
behalf of Plaintiff, seeking to file an amended complaint. The Court granted Plaintiff’s motion
(noting no objection was filed by Defendants), and Plaintiff’s Second Amended Complaint, the
current operative complaint, was filed on August 26, 2016 (see Doc. 56).
Defendants filed a Motion to Dismiss Count II of Plaintiff’s complaint on September 1,
2016, which is now before the Court (Doc. 58). Defendants seek dismissal of Count II of
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Plaintiff’s Second Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure and 735 ILCS § 5/2-622. Specifically, Defendants assert that Count II of Plaintiff’s
Second Amended Complaint, setting forth a state law claim for medical negligence against all
Defendants, should be dismissed for Plaintiff’s failure to provide an affidavit as required by 735
ILCS 5/2-622. For the reasons set forth below, Defendants’ Motion to Dismiss is DENIED.
LEGAL STANDARDS
In considering a motion to dismiss, the Court accepts as true all well-pleaded allegations in
the complaint and draws all possible inferences in favor of the plaintiff. See Killingsworth v.
HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007) (quotations omitted). A plaintiff
need not set out all relevant facts or recite the law in his or her complaint; however, the plaintiff
must provide a short and plain statement that shows that he or she is entitled to relief. See FED. R.
CIV. P. 8(a)(2). Thus, a complaint will not be dismissed if it “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 679 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A
claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” 556 U.S. at 678.
Additionally, “[a]llegations of a pro se complaint are held ‘to less stringent standards than formal
pleadings draft by lawyers … Accordingly, pro se complaints are liberally construed.” Alvarado
v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)) (other citations omitted).
Pursuant to 735 ILCS § 5/2-622, “any action, whether in tort, contract, or otherwise, in
which the plaintiff seeks damages for injuries or death by reason of medical malpractice, hospital
or other healing malpractice, the plaintiff’s attorney or the plaintiff, if the plaintiff is proceeding
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pro se, shall file an affidavit” attesting 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.”
Failure to abide by this requirement “shall be grounds for dismissal.” Id. The Seventh Circuit
has determined that while dismissal is necessary, courts have discretion to dismiss with or without
leave to amend. Sherrod v. Lingle, 223 F. 3d 605, 613 (7th Cir. 2000).
DISCUSSION
In this case, the Court screened Plaintiff’s original complaint pursuant to 28 U.S.C.
§1915A while he was proceeding pro se and determined that Plaintiff had filed an affidavit and
report written by Lisa Johnson, Director of Nursing for the IDOC that complied with the
requirements of § 5/2-622 (see Doc. 6, p. 7). In his Second Amended Complaint, Plaintiff set
forth allegations that are substantively similar to those in his original complaint, and, more
importantly, attached the same document written by Lisa Johnson in support of his medical
negligence claim. Although the Court acknowledges that Plaintiff did not include an affidavit
along with his Second Amended Complaint, Defendants have not provided a convincing argument
for why the Court should reconsider its previous determination that Lisa Johnson’s written report
is sufficient to meet the requirements of § 5/2-622, particularly in light of Illinois law that directs
that “[t]he technical requirements of [§ 2-622] should not interfere with the spirit or purpose of the
statute. The absence of strict technical compliance with the statute is one of form only and not of
substance.” Comfort v. Wheaton Family Practice, 939 N.E.2d 1032, 1043 (Ill. App. Ct. 2010).
The Court has reviewed the report of Lisa Johnson and finds it sufficient to allow Plaintiff to bring
his medical negligence claim against Defendants.
CONCLUSION
For the foregoing reasons, Defendants’ Motion to Dismiss Count II filed on September 1,
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2016 (Doc. 58) is DENIED.
IT IS SO ORDERED.
DATED: February 2, 2017

DONALD G. WILKERSON
United States Magistrate Judge

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