Sloat v. USA

Filing 17

ORDER GRANTING Defendant United States of America's Motion to Dismiss (Doc. 15 ). Plaintiffs claim for medical negligence (Doc. 9 ) is DISMISSED with prejudice. Because there are no remaining claims, the Clerk of Court is DIRECTED to enter judgment against Plaintiff Robert Allen Sloat and in favor of Defendant United States of America and to close this case. Signed by Judge Staci M. Yandle on 12/7/2017. (bps)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
ROBERT ALLEN SLOAT,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 16-CV-917 SMY-RJD

MEMORANDUM AND ORDER
Before the Court is Defendant United States of America’s Motion to Dismiss. (Doc. 15).
Plaintiff Robert Allen Sloat is an inmate housed at the Federal Correctional Institution in
Greenville, Illinois (“FCI-Greenville”). For the following reasons, the motion is GRANTED.
Plaintiff filed this action on August 15, 2016, alleging violations of his constitutional and
statutory rights. (Doc. 1). He now proceeds on a single medical negligence claim for the denial
of dental care, under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. (Doc. 9).
Defendant seeks to dismiss Plaintiff’s claim with prejudice, on the bases that Plaintiff’s
purported affidavit of merit does not satisfy Illinois law and that Plaintiff has had ample
opportunity to comply with the affidavit requirement. (Doc. 15).
“The FTCA requires courts to consult state law to determine whether the government is
liable for its employees’ torts.” Makowski v. United States, 27 F. Supp. 3d 901, 916 (N.D. Ill.
2014). Illinois law requires a plaintiff to obtain certification from a medical professional that a
case has merit, prior to commencing a medical malpractice or similar action. 735 ILCS. § 5/2622; Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). “[W]hen a plaintiff fails to attach a
certificate and report, then a sound exercise of discretion mandates that the plaintiff be at least

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afforded an opportunity to amend her complaint to comply with section 2–622 before her action
is dismissed with prejudice.” Sherrod, 223 F.3d at 614.
This Court screened Plaintiff’s original Complaint and dismissed his medical negligence
claim without prejudice on October 11, 2016, for failure to file the affidavit/certificate of merit.
(Doc. 8). Plaintiff was advised that if he did not file the required affidavit within 28 days, his
claim would be dismissed with prejudice. (Id. at 7).
On November 15, 2016, Plaintiff filed an Amended Complaint, to which the required
affidavit was purportedly attached.

(Doc. 9).

The Court screened Plaintiff’s Amended

Complaint on March 6, 2017, acknowledged the purported affidavit, and allowed Plaintiff’s
claim to proceed; reserving the determination of whether the purported affidavit complied with
Illinois law for a future date. (Doc. 10).
Upon review, Plaintiff did not attach the required affidavit, but instead attached his dental
records. (Doc. 9-1). Plaintiff maintains that the Court should consider the fact that he is a pro se
litigant. But the statute that requires a medical affidavit expressly applies to pro se litigants. 735
ILCS § 5/2-622(a) (“In 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, the plaintiff’s attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file
an affidavit . . . “). Because Plaintiff has failed to submit a medical affidavit, his medical
negligence claim will be dismissed. Additionally, because he has had ample opportunity to
submit the affidavit, the dismissal will be with prejudice.
For the foregoing reasons, Defendant United States of America’s Motion to Dismiss
(Doc. 15) is GRANTED, and Plaintiff’s medical negligence claim (Count 1) is DISMISSED
with prejudice. Because there are no remaining claims, the Clerk of Court is DIRECTED to

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enter judgment against Plaintiff Robert Allen Sloat and in favor of Defendant United States of
America and to close this case.

IT IS SO ORDERED.
DATED: December 7, 2017

s/ Staci M. Yandle
STACI M. YANDLE
United States District Judge

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