Pegues v. Coe et al
ORDER denying 36 Motion to Amend/Correct; granting 55 Motion for a Status Report. Signed by Magistrate Judge Reona J. Daly on 10/12/16. (dam)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JOHN COE, et al.,
Case No. 3:16 CV 239 SMY/RJD
DALY, Magistrate Judge:
Before the Court is Plaintiff’s Motion for Leave to Amend the Complaint in which
Plaintiff seeks to reinstate his claims of medical negligence against Defendants John Coe and
Tammy Kimmel. (Doc. 36). Plaintiff’s Motion for a Status Report (Doc. 55) is also before the
Court. Plaintiff seeks a status update on the Motion for Leave to Amend and his Objection to the
Report and Recommendation on his Motion for a Preliminary Injunction (Doc. 50). This Order
resolves the Motion for Leave to Amend, but the Report and Recommendation and Plaintiff’s
Objection remain under the consideration of the Court.
Plaintiff Adam Pegues filed this lawsuit pro se on March 7, 2016. (Doc. 1). Plaintiff
asserts in his complaint that he was subjected to deliberate indifference and gross negligence
with regard to his medical condition and that he did not receive reasonable accommodations as
required under the Americans with Disabilities Act. (Id.) On May 31, 2016, the Court screened
the complaint pursuant to 28 U.S.C. § 1915A. (Doc. 10). The Court reviewed Plaintiff’s claim
of gross negligence, observing that Plaintiff failed to state the factual basis of the claim, and
ordered that, if Plaintiff intended to assert a medical negligence claim, he was required to file an
affidavit, certificate of merit, and written report in accordance with Illinois law. (Id. at 20-21).
Specifically, for medical malpractice claims, Illinois law requires plaintiffs to 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 affiant has not previously voluntarily
dismissed an action based on the same claim (and in this case, an affidavit certifying the claim
and 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). 735 Ill. Comp. Stat. § 5/2-622. The Court dismissed the claim and ordered
Plaintiff to file an affidavit by July 6, 2016, and a written report and certificate of merit in a
timely manner, or the dismissal would become a dismissal with prejudice. (Doc. 10 at 20-21.)
On July 6, 2016, Plaintiff filed the instant motion to reinstate the claim of medical
malpractice against Defendants John Coe and Tammy Kimmel. Plaintiff attached a sworn
affidavit, stating that he was unable to obtain a consultation with a medical provider prior to the
expiration of the statute of limitations and requested an additional ninety days to submit the
required written report. However, as of the date of this Order, Plaintiff has submitted neither a
certificate of merit nor a written report. Because Plaintiff did not file a written report and
certificate of merit in a timely manner as previously ordered, the dismissal of his medical
malpractice claim is now a dismissal with prejudice.
Federal Rule of Civil Procedure 15(a) states, “a party may amend the party's pleading
only by leave of court or by written consent of the adverse party; and leave shall be freely given
when justice so requires.” Leave may be denied if the amended complaint would be futile.
Airborne Beepers & Video, Inc. v. AT&T Mobility LLC, 499 F.3d 663, 666 (7th Cir. 2007).
Failure to file the required certificate or merit and written report is grounds for dismissal of the
claim. See 735 Ill. Comp. Stat. § 5/2-622; Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000).
Plaintiff has failed to file the required certificate of merit and written report.
amending the complaint to reinstate the medical malpractice claim would be futile.
Moreover, the amendment does not include any of the remaining counts and omits many
fact allegations from the original complaint. Instead, it represents an attempt to add another
claim to his case in a piecemeal fashion. This is not permitted. A proper amended complaint
must contain all the allegations to support a plaintiff’s claims, in a single document – both the
claims brought in the original case (with any modifications), as well as any new material. See
Fed. R. Civ. P. 8(a). Further, an amended complaint supersedes and replaces the original
complaint, rendering the original complaint void. See Flannery v. Recording Indus. Ass’n of
Am., 354 F.3d 632, 638 n.1 (7th Cir. 2004). If Plaintiff’s proposed amended pleading were to be
filed, the original complaint would be a nullity. The Court suspects that this was not Plaintiff’s
Based on the foregoing, Plaintiff’s Motion for Leave to Amend the Complaint (Doc. 36)
is DENIED, and Plaintiff’s Motion for a Status Report (Doc. 55) is GRANTED.
IT IS SO ORDERED.
DATED: October 12, 2016.
Reona J. Daly
UNITED STATES MAGISTRATE JUDGE
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