Hughes v. Raymon et al

Filing 27

ORDER GRANTING 3 Motion for Leave to Proceed in forma pauperis and REINSTATING and GRANTING 5 Motion for Service of Process at the Government's Expense. The Clerk of Court is DIRECTED to complete a summons and form USM-285 for service of process on Defendant Stryker Corporation. The Clerk SHALL deliver the completed summons, USM-285 form, a copy of the second amended complaint, and a copy of this Order to the United States Marshal. The United States Marshal SHALL serve Stryker Corporation pursuant to Rule 4(e) of the Federal Rules of Civil Procedure. Signed by Judge Nancy J. Rosenstengel on 8/29/2018. (bak)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DORIS HUGHES,
Plaintiff,
vs.
STRYKER CORPORATION,
Defendant.

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Case No. 17-CV-947-NJR-RJD

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
On September 5, 2017, Doris Hughes (“Hughes”) filed a pro se complaint naming
Jose Raymon, Ryan Hunley, Jeffrey Whiting, Touchette Regional Hospital and
Barnes-Jewish Hospital as defendants (Doc. 2). The Court initially dismissed the
complaint without prejudice pursuant to 28 U.S.C. § 1915(e)(2)(B) on the basis that
Hughes failed to state a plausible claim for violations of her constitutional rights by
persons acting under the color of state law. Hughes subsequently filed various
letters/motions with the Court requesting leave to proceed on a product liability claim.
On April 27, 2018, the undersigned vacated the Clerk’s Judgment and granted Hughes
leave to file an amended complaint. On May 9, 2018, Hughes filed an amended
complaint alleging a product liability claim against Stryker Corporation only. In light of
the filing of the amended complaint, the Court reinstated the motion to proceed in forma
pauperis (See Docs. 3 & 4) and conducted a threshold review of the amended complaint
pursuant to Section 1915. Finding that Hughes failed to state a product liability claim
against Stryker Corporation, the Court dismissed the amended complaint without

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prejudice (Doc. 25). Hughes has now filed a second amended complaint (Doc. 26). Thus,
the Court revisits the pending motion to proceed in forma pauperis (See Docs. 3 & 4).
Because the Court has already found Hughes indigent (see Doc. 25, p. 2), it will
proceed to reviewing the allegations of the second amended complaint.
As explained previously, a court can dismiss a case if the court determines that
the action is clearly frivolous or malicious, fails to state a claim, or is a claim for money
damages against an immune defendant. 28 U.S.C. § 1915(e)(2)(B); see also Hoskins v.
Poelstra, 320 F.3d 761, 763 (7th Cir. 2003) (“District judges have ample authority to
dismiss frivolous or transparently defective suits spontaneously, and thus save everyone
time and legal expense.”).
In reviewing the second amended complaint, the Court accepts the factual
allegations as true, liberally construing those allegations in the plaintiff’s favor. Turley v.
Rednour, 729 F.3d 645 (7th Cir. 2013). Conclusory statements and labels are not enough.
The complaint must allege enough facts to “state a claim to relief that is plausible on its
face.” Alexander v. United States, 721 F.3d 418, 421 (7th Cir. 2013). 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).
First, the Court finds that it has subject matter jurisdiction over this case based on
the allegations of the second amended complaint. Hughes alleges that she is a citizen of
Illinois, and Stryker Corporation is a citizen of Michigan. While Hughes does not
specifically state that the “amount in controversy exceeds $75,000, exclusive of interest
and costs,” the Court concludes that the second amended complaint adequately alleges

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that the amount in controversy exceeds the jurisdictional threshold. The Court is
obligated to construe her pleadings liberally, given her pro se status. Hughes seeks thirty
million dollars in damages (Doc. 26, p. 9). The fact that such a sum may not actually be
recovered has no bearing on the Court’s determination as to whether Hughes has met
the jurisdictional threshold. Based on the claims she has alleged and the relief she has
requested, the Court concludes that she has adequately alleged the amount in
controversy threshold is satisfied.
The Court also finds that Hughes has sufficiently stated a product liability claim
against Stryker Corporation. To state a strict product liability claim in the state of Illinois,
a plaintiff must allege “(1) a condition of the product as a result of manufacturing or
design, (2) that made the product unreasonably dangerous, (3) that existed at the time
the product left the defendant’s control, and (4) an injury to the plaintiff, (5) that was
proximately caused by the condition.” Mikolajczyk v. Ford Motor Co., 901 N.E.2d 329, 345
(Ill. 2008).
In the second amended complaint, Hughes alleges that a “rejuvenate” hip
implant device has caused her severe injury necessitating a revision surgery. The
allegations of the second amended complaint seem to implicate that the hip implant
device contained a manufacturing defect, which made the product “unreasonably
dangerous” and the defect was present “at the time it left [Stryker Corporation’s]
control.” (Doc. 26, p. 7-8). Hughes sufficiently alleges that this device caused her injuries
(Id.). Thus, the Court finds that the second amended complaint is not clearly frivolous or
malicious and does not fail to state a claim.

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Accordingly, the Court GRANTS the motion for leave to proceed in forma pauperis
(Doc. 3).
The Court also REINSTATES and GRANTS Hughes’s motion for service of
process at the government’s expense (Doc. 5). The Clerk of Court is DIRECTED to
complete a summons and form USM-285 for service of process on Defendant Stryker
Corporation. The Clerk SHALL deliver the completed summons, USM-285 form, a copy
of the second amended complaint, and a copy of this Order to the United States Marshal.
The United States Marshal SHALL serve Stryker Corporation pursuant to Rule 4(e) of
the Federal Rules of Civil Procedure. Rule 4(e) provides, “an individual—other than a
minor, an incompetent person, or a person whose waiver has been filed—may be served
in a judicial district of the United States by: (1) following state law for serving a
summons in an action brought in courts of general jurisdiction in the state where the
district court is located or where service is made; or (2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with
someone of suitable age and discretion who resides there; or (C) delivering a copy of
each to an agent authorized by appointment or by law to receive service of process.” All
costs of service shall be advanced by the United States.
IT IS SO ORDERED.
DATED: August 29, 2018
s/ Nancy J. Rosenstengel___________
NANCY J. ROSENSTENGEL
United States District Judge

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