Rodarte-Mendoza v. USA et al

Filing 9

MEMORANDUM AND ORDER: ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. IT IS HEREBY ORDERED that Plaintiff may proceed with his claim under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, in COUNT 1 against Defe ndant UNITED STATES OF AMERICA. IT IS FURTHER ORDERED that COUNT 1 is DISMISSED with prejudice against Defendants FEDERAL BUREAU OF PRISONS and PETER KIM for failure to state a claim upon which relief may be granted. The Clerk of Court is DIRECTED to complete, on Plaintiffs behalf, a summons forservice of process on the United States; the Clerk shall issue the completed summons. Signed by Judge J. Phil Gilbert on 8/10/2017. (tkm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
RAMON RODARTE-MENDOZA,
#07765-084,
Plaintiff,
vs.
UNITED STATES OF AMERICA,
FEDERAL BUREAU OF PRISONS,
and PETER KIM,
Defendants.

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Case No. 17-cv-00498-JPG

MEMORANDUM AND ORDER
GILBERT, District Judge:
Plaintiff Ramon Rodarte-Mendoza, an inmate who is currently incarcerated at the Federal
Correctional Institution located in Greenville, Illinois (“FCI-Greenville”), brings this action
pursuant to the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680. Plaintiff alleges that
he suffered from a perforated colon during a colonoscopy that was performed by Doctor Kim at
Holy Family Hospital on July 19, 2016. (Docs. 1, 1-1). He underwent emergency surgery four
days later. (Doc. 1-1, p. 3). Due to the alleged negligence of Doctor Kim, Plaintiff lost a section
of his colon and his appendix. (Doc. 1-1, pp. 1-5). He now seeks monetary relief against the
United States, the Federal Bureau of Prisons (“BOP”), and Doctor Kim. (Doc. 1; Doc. 1-1, pp.
1-5).
This case is before the Court for preliminary review of the Complaint (Docs. 1, 1-1, 1-2)
pursuant to 28 U.S.C. § 1915A, which provides:
(a) Screening – The court shall review, before docketing, if feasible or, in
any event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.
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(b) Grounds for Dismissal – On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the complaint, if the
complaint–
(1) is frivolous, malicious, or fails to state a claim on which relief
may be granted; or
(2) seeks monetary relief from a defendant who is immune from
such relief.
An action or claim is frivolous if “it lacks an arguable basis either in law or in fact.” Neitzke v.
Williams, 490 U.S. 319, 325 (1989). Frivolousness is an objective standard that refers to a claim
that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 1026-27 (7th
Cir. 2000). An action fails to state a claim upon which relief can be granted if it does not plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the
pro se complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 821 (7th Cir. 2009).
Complaint
During his incarceration at FCI-Greenville, Plaintiff underwent a colonoscopy at Holy
Family Hospital on July 19, 2016. (Doc. 1-1, p. 2). Doctor Kim performed the procedure. Id.
On July 21, 2016, Plaintiff went to FCI-Greenville’s Health Services Unit (“HSU”) for treatment
of “abdominal pain, dark urine and pain during urination.” Id. He rated the pain as a “10,” i.e.,
the highest pain rating on the scale he was given. Id. The pain was allegedly intolerable. Id.
Plaintiff was sent without delay to St. Joseph’s Highland Hospital – Southern Illinois
Division. (Doc. 1-1, p. 2). There, he was diagnosed with a “possible” perforation of his colon.
Id. He underwent testing, which confirmed that his colon was perforated during the colonoscopy
on July 19, 2016. (Doc. 1-1, pp. 2-3). Doctor Knolhoff performed emergency surgery on

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Plaintiff on July 23, 2016. (Doc. 1-1, p. 2). The surgeon removed a 4-5 inch section of
Plaintiff’s colon. (Doc. 1-1, p. 4). His appendix was also removed. Id.
Plaintiff alleges that he suffered from severe pain and life-threatening injuries as a result
of Doctor Kim’s negligence on July 19, 2016. (Doc. 1; Doc. 1-1, pp. 1-5). At the time, he was
under the BOP’s care. Plaintiff now seeks monetary relief under the FTCA against the United
States, BOP, and Doctor Kim.
Discussion
To facilitate the orderly management of future proceedings in this case, and in
accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court
deems it appropriate to organize the claim in Plaintiff’s pro se Complaint into the following
enumerated count:
Count 1 -

Defendants, by and through the negligence of Doctor Kim, are
liable under the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b),
2671-2680, for the perforated colon that Plaintiff suffered on
July 19, 2016.

The parties and the Court will use this designation in all future pleadings and orders, unless
otherwise directed by a judicial officer of this Court. The designation does not constitute an
opinion regarding the merits of this claim.
Count 1
Under the Federal Tort Claims Act (“FTCA”), a federal prisoner may seek monetary
relief against the United States for the negligent acts or omissions of any employee of the
government acting within the scope of his or her official duties. Sisk v. United States, 756 F.2d
497, 500 n. 4 (7th Cir. 1985) (citing 28 U.S.C. §§ 1346(6), 2680)). The FTCA explicitly
authorizes “civil actions on claims against the United States, for money damages . . . for . . .
personal injury or death caused by the negligent or wrongful act or omission of any employee of
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the Government while acting within the scope of his office or employment.”

28 U.S.C.

§ 1346(b)(1). It operates as a limited waiver of sovereign immunity. See id.; LM ex rel. KM v.
United States, 344 F.3d 695, 698 (7th Cir. 2003).
The FTCA creates a cause of action against the United States, not private individuals or
government agencies. Boutte v. Northwestern Med. Fac. Found., 276 F. App’x 490 (7th Cir.
2008) (FTCA claim for negligent misdiagnosis against private physicians group dismissed for
lack of subject matter jurisdiction); Kaba v. Stepp, 458 F.3d 678, 681 (7th Cir. 2006) (“[T]he
United States . . . would be the proper defendant for tort claims involving acts of the named
officials within the scope of their employment.”); Stewart v. United States, 655 F.2d 741, 742
(7th Cir. 1981) (“Plaintiff has no cause of action . . . [under the FTCA] against an employee, her
exclusive remedy being an action against the United States.”). The only proper defendant in this
action is the United States. Count 1 shall therefore be dismissed with prejudice against the BOP
and Doctor Kim.
The question becomes whether the United States can be held liable for the conduct of
Doctor Kim, who was allegedly negligent in the treatment of Plaintiff on July 19, 2016. It is not
clear whether the doctor was acting within the scope of his or her employment as a government
employee. The FTCA does not specifically include outside medical providers in the definition of
“employee of the government.” See 28 U.S.C. § 2671. And although the definition includes
“employees of any federal government agency,” it excludes “any contractor with the United
States” from the definition of “federal government agency.” Id. See also Alinsky v. United
States, 415 F.3d 639, 643-44 (7th Cir. 2005) (citations omitted). The Seventh Circuit has
observed that “Congress expressly granted jurisdiction for suits brought against the United States
for its employees’ conduct, and not the conduct of contractors. State common law principles

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cannot overcome this federal statute.” Alinsky, 415 F.3d at 639, 645 (citations omitted) (United
States cannot be held liable for any conduct of its independent contractors). With that said,
FTCA claims have been allowed to proceed against the United States based on the conduct of
outside providers in some contexts. See e.g., Arteaga v. United States, 711 F.3d 828, 830-31 (7th
Cir. 2013) (employees of a private enterprise that receives grant money from the U.S. Public
Health Service are considered federal employees for purposes of FTCA claim). See also Hui v.
Castaneda, 559 U.S. 799 (2010). For now, the Court will not dismiss the FTCA claim against
the United States on this basis.
When considering the merits of an FTCA claim, the Court looks to the substantive law of
the state where the tort occurred. See, e.g., Parrott v. United States, 536 F.3d 629, 637 (7th Cir.
2008); Palay v. United States, 349 F.3d 418, 425 (7th Cir. 2003). In order to pursue an FTCA
claim based on medical negligence or medical malpractice that occurred in Illinois, an inmate
must comply with 735 ILCS § 5/2-622. Under Illinois law, a Plaintiff “[i]n 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,” must 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, the required 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

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be filed within 90 days of receipt of the records). See 735 ILL. COMP. STAT. § 5/2-622(a) (West
2017).1 A separate affidavit and report shall be filed as to each defendant. See 735 ILL. COMP.
STAT. § 5/2-622(b).
In the instant case, Plaintiff asserts that he has complied with 735 ILCS § 5/2-622 by
filing the necessary affidavits or reports. (Doc. 1-1, p. 5). Whether the documents actually
satisfy section 2-622 remains to be determined. Id. For now, the FTCA claim in Count 1 shall
proceed against the United States.
Disposition
IT IS HEREBY ORDERED that Plaintiff may proceed with his claim under the Federal
Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680, in COUNT 1 against Defendant UNITED
STATES OF AMERICA.
IT IS FURTHER ORDERED that COUNT 1 is DISMISSED with prejudice against
Defendants FEDERAL BUREAU OF PRISONS and PETER KIM for failure to state a claim
upon which relief may be granted.
The Clerk of Court is DIRECTED to complete, on Plaintiff’s behalf, a summons for
service of process on the United States; the Clerk shall issue the completed summons. Pursuant
to Federal Rule of Civil Procedure 4(i), the Clerk shall (1) personally deliver to or send by
registered or certified mail addressed to the civil-process clerk at the Office of the United States
Attorney for the Southern District of Illinois a copy of the Summons, the Complaint (Doc. 1),

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The August 25, 2005, amendments to a prior version of this statute were held to be unconstitutional in
2010. Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill. 2010) (Holding P.A. 94-677 to be
unconstitutional in its entirety). After Lebron, the previous version of the statute continued in effect. See
Hahn v. Walsh, 686 F. Supp. 2d 829, 832 n.1 (C.D. Ill. 2010). The Illinois legislature re-enacted and
amended 735 ILL. COMP. STAT. §5/2-622 effective January 18, 2013 (P.A. 97-1145), to remove any
question as to the validity of this section. See notes on Validity of 735 ILL. COMP. STAT. §5/2-622 (West
2013).

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and this Memorandum and Order, and (2) send by registered or certified mail to the Attorney
General of the United States at Washington, D.C., a copy of the Summons, the Complaint (Doc.
1), and this Memorandum and Order.
Each Defendant is ORDERED to timely file an appropriate responsive pleading to the
Complaint and shall not waive filing a reply pursuant to 42 U.S.C. § 1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to a United States
Magistrate Judge for further pre-trial proceedings, pursuant to Local Rule 72.2(b)(2) and
28 U.S.C. § 636(c), if all parties consent to such a referral. Further, this entire matter shall be
REFERRED to a United States Magistrate Judge for disposition, pursuant to Local Rule
72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to such a referral.
Finally, Plaintiff is ADVISED that he is under a continuing obligation to keep the Clerk
of Court and each opposing party informed of any change in his address; the Court will not
independently investigate his whereabouts. This shall be done in writing and not later than
7 days after a transfer or other change in address occurs. Failure to comply with this order will
cause a delay in the transmission of court documents and may result in dismissal of this action
for want of prosecution. See FED. R. CIV. P. 41(b).
IT IS SO ORDERED.
DATED: August 10, 2017
s/J. Phil Gilbert
J. PHIL GILBERT
United States District Judge

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