Rodarte-Mendoza v. USA et al

Filing 24

MEMORANDUM AND ORDER, Plaintiff is WARNED that the failure to respond to the forthcoming summary judgment motion may result in dismissal of this action with prejudice. In light of the foregoing, Defendant's motions (Docs. 15 & 22) are DENIED without prejudice. Defendant's answer deadline is STAYED pending resolution of the anticipated motion for summary judgment. Signed by Judge J. Phil Gilbert on 12/21/2017. (jdh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAMON RODARTE-MENDOZA,
Plaintiff,
v.
UNITED STATES OF AMERICA,
Defendant.

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Case No. 3:17-cv-498-JPG-DGW

MEMORANDUM AND ORDER
This matter is before the Court on the motion to dismiss (Doc. 15), the motion to reconsider
(Doc. 22), and the status report (Doc. 19) filed by the defendant United States of America.
Plaintiff Ramon Rodarte-Mendoza has responded to the motion to dismiss (Doc. 16) and to the
motion for reconsideration (Doc. 23) and has filed a status report (Doc. 20).
Rodarte-Mendoza filed a complaint on May 11, 2017, pursuant to the Federal Tort Claims
Act (“FTCA”), 28 U.S.C. § 1915A, alleging that Dr. Peter Kim botched a colonoscopy by
perforating his colon.

He suffered intolerable pain from this life-threatening injury and

underwent emergency surgery to remove part of his colon and his appendix. When his complaint
was screened pursuant to 28 U.S.C. § 1915A, this Court found that while it was not clear that Dr.
Kim was an employee of the government, Plaintiff’s claim would be allowed to move forward
against the United States. This Court then outlined the affidavit/written report requirements set
forth in Illinois’ medical malpractice law, which provides the substantive law, and further found
that Plaintiff had at least alleged that he satisfied state law. 735 ILCS § 5/2-622.
Defendant has filed a motion to dismiss arguing that Plaintiff failed to comply with the
affidavit requirement of Illinois law (Doc. 15). Defendant also has filed a motion to reconsider,
with an attached declaration, stating that Dr. Kim is not an employee of the government. Finally,

the parties have filed “reports” setting forth Plaintiff’s attempts to acquire his medical records –
which the Court assumes is a further attempt to show that Plaintiff did or did not comply with
Illinois’ affidavit requirement.
In order to more efficiently resolve these arguments, it would be convenient for all of
Defendant’s arguments to be contained in one motion and for there to be one response. And,
because Defendant has elected to introduce evidence outside of the pleadings, that document
should be a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56 (filed
with the necessary notice to Plaintiff of the consequences of failing to respond).
Defendant is therefore granted leave to file a single motion for summary judgment within
15 days of the date of this order setting forth all the arguments made in its previous filings.
Plaintiff is WARNED that the failure to respond to the forthcoming summary judgment motion
may result in dismissal of this action with prejudice. In light of the foregoing, Defendant’s
motions (Docs. 15 & 22) are DENIED without prejudice. Defendant’s answer deadline is
STAYED pending resolution of the anticipated motion for summary judgment.
IT IS SO ORDERED.
DATED: December 21, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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