Singleton v. Rains et al
Filing
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ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. Signed by Chief Judge Michael J. Reagan on 12/7/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AVERY SINGLETON, # R-29723,
Plaintiff,
vs.
DAVID RAINS,
DR. LEO NARODISTKY,
PHIL MARTIN,
DR. SANDHU,
and MRS. SLICKENMEYER,
Defendants.
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Case No. 17-cv-1176-MJR
MEMORANDUM AND ORDER
REAGAN, Chief District Judge:
Plaintiff, currently incarcerated at Vienna Correctional Center (“Vienna”), has brought
this pro se civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff’s claims arose while he was
confined at Robinson Correctional Center (“Robinson”), and he filed the action while he was in
Jacksonville Correctional Center (“Jacksonville”). Plaintiff claims that the prison dentist at
Lawrence, Dr. Narodistky, delayed treatment for a damaged tooth and rendered improper
treatment that caused him pain. This case is now before the Court for a preliminary review of
the Complaint pursuant to 28 U.S.C. § 1915A.
Under § 1915A, the Court is required to screen prisoner complaints to filter out nonmeritorious claims. See 28 U.S.C. § 1915A(a). The Court must dismiss any portion of the
Complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be
granted, or asks for money damages from a defendant who by law is immune from such relief.
28 U.S.C. § 1915A(b).
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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 “no reasonable person could suppose to have any merit.” 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. Conversely, a complaint is
plausible on its face “when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Although the Court is obligated to accept factual allegations as true,
see Smith v. Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so
sketchy or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as adequate
abstract recitations of the elements of a cause of action or conclusory legal statements.” Id. At
the same time, however, the factual allegations of a pro se complaint are to be liberally
construed. See Arnett v. Webster, 658 F.3d 742, 751 (7th Cir. 2011); Rodriguez v. Plymouth
Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).
Applying these standards, the Court finds that some of Plaintiff’s claims survive
threshold review under § 1915A.
The Complaint
On August 15, 2016, while Plaintiff was at Robinson, he sought treatment from Dr.
Narodistky for a broken tooth (tooth #7). (Doc. 1, p. 14). Plaintiff asked for a repair using
“flo[w]able composite,” which he had received earlier on the same tooth while at the Cook
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County Jail, and outside prison. Some of that composite remained on Plaintiff’s tooth from his
earlier dental work. Narodistky responded that he could not do the composite repair, and all he
could do was extract the tooth. Because the composite on his tooth was not completely chipped
away, Plaintiff did not choose the extraction.
At some point after the August 15 dental visit, while eating, Plaintiff cracked the
flowable composite where it had bonded his tooth back together. This made it difficult for him
to eat, because he was trying to avoid completely breaking the tooth.
On approximately October 31, 2016, Plaintiff returned to see Narodistky, and asked if he
could get a temporary crown and a root canal. Narodistky said that a root canal was too costly
and the IDOC would not pay for it, so all he could do was extract the tooth. Plaintiff asked if the
tooth could be bonded together with the flowable composite. Narodistky instead suggested that
Plaintiff should let him extract the tooth and replace it with a partial, and reiterated that he could
not do a crown and root canal due to cost limitations. (Doc. 1, p. 15). Plaintiff wanted to save
the tooth, because it was not painful or infected, just cracked, and other dentists had been able to
bond the tooth. Id.
Plaintiff also asked for partials for the lower left and right rear of his mouth where he was
already missing other teeth. Narodistky would only provide these partials if Plaintiff agreed to
pay $80. (Doc. 1, p. 15).
Plaintiff filed grievances on October 31 and November 20, 2017, to complain about
Narodistky’s refusal to repair the tooth. 1 (Doc. 1, pp. 16, 27, 29-32). In December 2016, after
receiving the response to his grievances, Plaintiff was called back to see Narodistky. This time,
Narodistky agreed to give Plaintiff a crown for the problem tooth #7. However, the work would
1
The December 12, 2016, response denying this grievance notes that Plaintiff’s medical records reflected
that the tooth was “broken (tooth from root)” and needed an extraction, and that a composite was “not a
proper procedure for this dental issue.” (Doc. 1, p. 27).
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not be done until January 2017. Narodistky showed Plaintiff the type of crown he would get
(silver), and explained that he would first “build the tooth up,” and then put on the crown.
Narodistky then “snatched the lower broken part of the chipped tooth off . . . with his hand.”
(Doc. 1, p. 16). This caused Plaintiff some slight pain.
Around January 15, 2017, Plaintiff went to see Narodistky expecting to get the metal
crown. However, Narodistky said that instead of putting on a crown, he would “build up the
tooth like a regular tooth.” (Doc. 1, p. 16). Plaintiff agreed, because he was tired of the delay.
Within 2 days after the buildup procedure, Plaintiff’s tooth was in excruciating pain. Before the
treatment, Plaintiff had not had any problem with that tooth, other than the fact it was cracked.
When Plaintiff reported the pain, Narodistky asked him whether he was ready to have the tooth
pulled now, which suggested to Plaintiff that the dentist intentionally did something to infect his
tooth. (Doc. 1, p. 17). Narodistky prescribed ibuprofen and antibiotics at that time. (Doc. 1, pp.
38-39).
Plaintiff’s attached documents reveal more details as to the chronology of events after
this point. On April 4, 2017, Plaintiff signed up for sick call to see the dentist, and also wrote a
letter to Martin, Warden Rains, and Slickenmeyer (Director of Nursing). (Doc. 1, pp. 40, 43-45).
In the letter, Plaintiff complained that Narodistky had initially refused to perform a root canal
and crown on the tooth that Plaintiff believed could be saved; complained that Narodistky failed
to put on a crown after initially agreeing to do so; stated that he had been in pain ever since
undergoing the tooth buildup procedure despite getting antibiotics and ibuprofen from
Narodistky about a week after the procedure; and noted that Narodistky denied his request for a
root canal because he did not have the necessary tool. Plaintiff asked to be scheduled to see
somebody who could perform a root canal in order to relieve his pain, and noted that Narodistky
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had not done any x-rays to check the condition of the painful tooth. (Doc. 1, p. 45). In the
Complaint, Plaintiff states that Martin, Rains, and Slickenmeyer did nothing to address his needs.
(Doc. 1, p. 17). However, Plaintiff notes in his grievance narratives that he was called in for a
dental x-ray soon after he sent the letter. (Doc. 1, pp. 34-35). At an unspecified time, Plaintiff
spoke to Martin (Health Care Administrator) about a grievance (the Complaint does not specify
which one), but Martin merely responded that “the rules are the rules,” and walked away. 2 (Doc.
1, p. 17).
Narodistky also visited Plaintiff over a period of several days to check on his condition,
while Plaintiff was housed in segregation, starting on approximately April 5, 2017. (Doc. 1, p.
40). Narodistky performed the x-ray, which showed an infection; he then prescribed penicillin
and ibuprofen. Id. Several days later, Plaintiff told Narodistky that the infection in his gums
seemed to be getting worse, so Narodistky gave Plaintiff a stronger antibiotic. Id.
When the pain continued to intensify, on approximately April 11, 2017, Narodistky
examined Plaintiff in his office and explained that a portion of the tooth buildup must be
removed in order to drain the abscess/infection. (Doc. 1, pp. 18, 40-41). Narodistky did that
procedure and the area began to drain. Id.
Plaintiff asked Narodistky to perform the root canal. (Doc. 1, pp. 18, 42). Narodistky
said that he was unable to do so, because he did not have the special tool needed for a root canal.
However, he told Plaintiff that the procedure was “about 80% complete” based on what he had
already done. Id. At some point, Narodistky requested his supervisor (Dr. Sandhu) to allow a
referral for Plaintiff to be treated by a root canal specialist. (Doc. 1, p. 18; see also Doc. 1, p.
2
In the context of the several grievances Plaintiff filed in April 2017, Martin’s comment on the “rules”
may have been in response to Plaintiff’s complaint over not being allowed out of segregation to see
Narodistky in his office; instead, the dentist had only been allowed to consult with Plaintiff in the
segregation unit, where they had to speak while separated by a steel door. (Doc. 1, pp. 23-24; 34-35; 40).
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50). Sandhu denied the referral.
A few days later, Narodistky visited Plaintiff in the segregation unit and told him that
Wexford had agreed to provide the tools for him to complete the root canal at the prison. (Doc.
1, pp. 18, 42). Plaintiff agreed to this plan, but he was transferred to another prison before
Narodistky could obtain the tool and finish the root canal.
Plaintiff complains that if Narodistky had not denied his request for a composite repair,
or root canal and crown back in the fall of 2016, he would not have had to suffer the pain and
distress from undergoing the buildup procedure, contracting the infection, and then having the
incomplete root canal. (Doc. 1, pp. 19, 42). Between October 2016 and January 2017, while
Narodistky was refusing to perform a root canal, Plaintiff had much difficulty eating certain food
because of the cracked tooth. (Doc. 1, p. 19). Narodistky initially claimed he could not repair
the tooth, but then finally agreed to do it after Plaintiff filed grievances. (Doc. 1, p. 19). Plaintiff
believes that the Defendants lied to him when they said that the IDOC does not do root canals, in
order to convince Plaintiff to have the tooth pulled. (Doc. 1, p. 42).
After Plaintiff’s transfer to Jacksonville, his condition worsened. The infection and pain
returned, and he was treated with antibiotics and pain medication. (Doc. 1, p. 42). As of the
time Plaintiff filed the instant Complaint, the tooth was still in Plaintiff’s mouth and nothing had
been done to complete the root canal. (Doc. 1, p. 19). Furthermore, Plaintiff never got the 2
partials he needed, because he did not have the required $80. Id.
Plaintiff seeks monetary damages for the alleged violations of his rights. (Doc. 1, p. 20).
Merits Review Pursuant to 28 U.S.C. § 1915A
Based on the allegations of the Complaint, the Court finds it convenient to divide the pro
se action into the following counts. The parties and the Court will use these designations in all
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future pleadings and orders, unless otherwise directed by a judicial officer of this Court. The
designation of these counts does not constitute an opinion as to their merit. Any other claim that
is mentioned in the Complaint but not addressed in this Order should be considered dismissed
without prejudice.
Count 1: Eighth Amendment deliberate indifference claim against Dr.
Narodistky for denying and delaying treatment for Plaintiff’s cracked (and then
infected) tooth, and for failing to provide 2 partials to replace other missing teeth;
Count 2: Eighth Amendment deliberate indifference claim against Rains, Martin,
and Slickenmeyer, for failing to ensure that Plaintiff received appropriate
treatment for his dental condition;
Count 3: Eighth Amendment deliberate indifference claim against Dr. Sandhu,
for turning down Dr. Narodistky’s request to refer Plaintiff to an outside specialist
for a root canal;
Count 4: State law dental malpractice claim against Dr. Narodistky for failing to
properly treat Plaintiff’s damaged tooth.
The claims in Counts 1 and 3 shall be referred for further consideration. However,
Counts 2 and 4 fail to state a claim upon which relief may be granted, and shall be dismissed.
Deliberate Indifference to a Serious Medical/Dental Condition
In order to state a claim for deliberate indifference to a serious medical need, an inmate
must show that he (1) suffered from an objectively serious medical condition; and (2) that the
defendant was deliberately indifferent to a risk of serious harm from that condition.
An
objectively serious condition includes an ailment that significantly affects an individual’s daily
activities or which involves chronic and substantial pain. Gutierrez v. Peters, 111 F.3d 1364,
1373 (7th Cir. 1997). The Seventh Circuit has recognized that dental care is “one of the most
important medical needs of inmates.” See Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001)
(allegations that an inmate denied his dentures could not chew his food, making eating difficult,
and that he suffered bleeding, headaches, and disfigurement, stated a serious medical need).
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“Deliberate indifference is proven by demonstrating that a prison official knows of a
substantial risk of harm to an inmate and either acts or fails to act in disregard of that risk.
Delaying treatment may constitute deliberate indifference if such delay exacerbated the injury or
unnecessarily prolonged an inmate’s pain.” Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012)
(internal citations and quotations omitted). See also Farmer v. Brennan, 511 U.S. 825, 842
(1994); Perez v. Fenoglio, 792 F.3d 768, 777-78 (7th Cir. 2015).
However, the Eighth
Amendment does not give prisoners entitlement to “demand specific care” or “the best care
possible,” but only requires “reasonable measures to meet a substantial risk of serious harm.”
Forbes v. Edgar, 112 F.3d 262, 267 (7th Cir. 1997). Further, a defendant’s inadvertent error,
negligence or even ordinary malpractice is insufficient to rise to the level of an Eighth
Amendment constitutional violation. See Duckworth v. Ahmad, 532 F.3d 675, 679 (7th Cir.
2008).
Here, Plaintiff’s cracked tooth, and later his painful infection/abscess, clearly required
professional attention. The Complaint thus satisfies the objective component of an Eighth
Amendment claim. The remaining question is whether the Defendants acted or failed to act with
deliberate indifference to a known risk of serious harm.
Count 1 – Deliberate Indifference – Dr. Narodistky
Much of Narodistky’s care for Plaintiff during the time period covered in the Complaint
appears to be appropriate to address Plaintiff’s needs – after Narodistky’s attempt to repair the
broken tooth by building it up, he responded to Plaintiff’s report of pain by prescribing pain
medication and antibiotics. After the x-ray in April 2017 revealed an infection, he treated that
condition promptly, and performed some steps toward a root canal in order to drain the infection.
Plaintiff states that the infection was nearly resolved after that treatment.
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At that point,
Narodistky attempted to refer Plaintiff to an outside provider so the root canal could be
completed – an action which reflects a reasonable response to Plaintiff’s need for treatment at
that time, rather than deliberate indifference. When the outside referral was denied, Narodistky
continued his efforts to treat Plaintiff by obtaining permission to get the instrument he would
need to complete the root canal. All of these efforts were in line with Plaintiff’s desire to save
the tooth rather than have it extracted, and do not demonstrate deliberate indifference to
Plaintiff’s dental condition.
Narodistky cannot be faulted for the fact that Plaintiff was
transferred away from Robinson, thus thwarting the plan to finish the root canal.
On the other hand, Narodistky’s initial refusal to provide Plaintiff with any other
treatment than an extraction, and the ensuing delay before the January 2017 procedure to restore
Plaintiff’s cracked tooth, could support a claim for deliberate indifference. Plaintiff suffered
additional damage to the tooth, as well as pain, discomfort, and difficulty eating during that
period. Narodistky’s action of “snatching off” a cracked piece of Plaintiff’s tooth (an allegation
that the Court must accept as true at this stage) may have aggravated Plaintiff’s difficulty with
eating, and/or increased the risk of infection. More time went by between the January 2017
procedure and the development of Plaintiff’s serious infection in April 2017, during which an
earlier assessment of Plaintiff’s condition might have avoided the complications that followed
(but it is not clear whether Plaintiff alerted Narodistky to any problems before April 4, 2017). In
Plaintiff’s view, if Narodistky had been willing to attempt repair of his tooth when Plaintiff first
requested it, the root canal which Narodistky ultimately decided to perform could have been
completed long before Plaintiff’s transfer. However, Plaintiff’s reluctance to have the tooth
extracted also contributed to the delay that elapsed before Narodistky attempted the alternative
treatment.
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As noted above, a prisoner may not “demand specific care,” or dictate his own course of
treatment. See Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003); Forbes v. Edgar, 112
F.3d 262, 267 (7th Cir. 1997). However, presenting an inmate with only one treatment option –
extraction of a tooth – with the only other option being no treatment at all, is troubling,
particularly when Narodistky explained that cost concerns were driving his recommendation that
Plaintiff have the tooth pulled. Deliberate indifference may be inferred when a medical or dental
provider makes a treatment decision that falls far afield of accepted professional medical
judgment.
Sain v. Wood, 512 F.3d 886, 894-95 (7th Cir. 2009).
At this point, there is
insufficient information to determine whether Narodistky’s recommendation to extract the tooth,
as well as his other treatment decisions, fell within the realm of acceptable professional
judgment.
Plaintiff raises an additional matter – his request for 2 partials, to replace teeth that had
been extracted before he sought treatment for the cracked tooth. He complains that he should
have been given those partials without being required to pay the $80 charge.
An inmate’s constitutional rights are not violated by the collection of a fee for prison
medical or dental services. Whether or not a statutory exemption should apply to the co-payment
rule is a question of state law, not cognizable in a § 1983 action. Poole v. Isaacs, 703 F.3d 1024,
1027 (7th Cir. 2012) (“the imposition of a modest fee for medical services, standing alone, does
not violate the Constitution”). In Plaintiff’s case, the $80 charge may be considered to fall above
the “modest” fee level for a dental service. Additionally, if Plaintiff suffered pain or serious
difficulty eating because of not having the partials, the denial of the partial(s) could amount to
deliberate indifference.
In light of the concerns outlined above, the Court concludes that it would be premature to
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dismiss Plaintiff’s deliberate indifference claim against Narodistky at the threshold review stage.
Therefore, the claim in Count 1 shall proceed for further consideration.
Dismissal of Count 2 – Deliberate Indifference – Rains, Martin, & Slickenmeyer
Plaintiff makes only a brief mention in the statement of claim of Rains, Martin, and
Slickenmeyer.
Plaintiff states that he asked Martin about a grievance, to which Martin
responded “the rules are the rules . . . I don’t know what to tell you.” (Doc. 1, p. 17). These
brief facts, which do not even identify the issue raised in Plaintiff’s grievance, are insufficient to
support a claim of deliberate indifference against Martin.
The only other claim Plaintiff makes is that Martin, Rains, and Slickenmeyer failed to
address his dental needs after he wrote them the letter on April 4, 2017, complaining about the
course of his treatment by Dr. Narodistky. The contents of that letter did put the recipients on
notice that Plaintiff was in need of further dental care. If no action was taken, then Plaintiff
might be able to sustain a deliberate indifference claim against one or more of them. See Perez
v. Fenoglio, 792 F.3d 768, 782 (7th Cir. 2015) (prisoner could proceed with deliberate
indifference claim against non-medical prison officials who failed to intervene despite their
knowledge of his serious medical condition and inadequate medical care, as explained in his
“coherent and highly detailed grievances and other correspondences”). However, Plaintiff’s
summary of events in his attached grievances shows that soon after he sent the letter, Plaintiff
was called in to see the dentist and was given an x-ray – which was one of the specific
complaints he raised in the letter.
This strongly suggests that either Martin, Rains, or
Slickenmeyer took action to ensure that Plaintiff got the necessary x-ray. Following that test,
Narodistky provided further treatment to Plaintiff. This sequence of events does not support a
deliberate indifference claim against Martin, Rains, or Slickenmeyer – but instead indicates that
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they responded to Plaintiff’s letter in a reasonable manner, which resulted in further treatment.
For these reasons, Count 2 against Martin, Rains, and Slickenmeyer shall be dismissed
without prejudice for failure to state a claim upon which relief may be granted.
Count 3 – Deliberate Indifference – Dr. Sandhu
According to Plaintiff, Dr. Narodistky sent a request to Dr. Sandhu in April 2017, seeking
authorization to send Plaintiff to an outside dental provider who could complete the root canal
work on Plaintiff’s tooth, after Narodistky did “80 percent” of the job while draining Plaintiff’s
infection. However, Dr. Sandhu denied the request. As a result, Plaintiff was forced to wait
until Narodistky could obtain the tool he needed to finish the root canal at the prison. This delay
prolonged the time that Plaintiff had to continue living with a damaged tooth – and turned out to
prevent Plaintiff from having the procedure at all, when Plaintiff was transferred to another
prison. Sandhu’s denial of the referral for treatment, and the delay in treatment that ensued, may
support a deliberate indifference claim against him. Count 3 shall therefore proceed for further
review.
Dismissal of Count 4 – Dental Malpractice
Where a district court has original jurisdiction over a civil action such as a § 1983 claim,
it also has supplemental jurisdiction over related state law claims pursuant to 28 U.S.C.
§ 1367(a), so long as the state claims “derive from a common nucleus of operative fact” with the
original federal claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). “A
loose factual connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th
Cir. 2008) (citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir. 1995)).
Plaintiff does not articulate a claim for dental malpractice against Narodistky, and it is
not clear from the Complaint whether he is attempting to assert such a state law claim. If
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Plaintiff desires to pursue a malpractice claim, the Court would have supplemental jurisdiction
over it, because the factual basis is identical to the constitutional claims discussed above in
Counts 1 and 3. However, he cannot sustain a malpractice claim based on the documents he has
submitted to the Court to date.
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 be filed
within 90 days of receipt of the records). See 735 ILL. COMP. STAT. §5/2-622(a) (West 2017). 3
A separate affidavit and report shall be filed as to each defendant. See 735 ILL. COMP. STAT.
§5/2-622(b).
Failure to file the required certificate is grounds for dismissal of the claim. See 735 ILL.
COMP. STAT. § 5/2-622(g); Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). In Plaintiff’s
3
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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case, he has not submitted an affidavit stating whether he has consulted with a qualified health
professional, nor has he submitted a report/certificate of merit from a professional. If he wishes
to assert a malpractice claim based on the facts in his Complaint, he must submit these
documents.
At this time, the claim in Count 4 shall be dismissed for failure to state a claim upon
which relief may be granted. However, the dismissal shall be without prejudice at this time, and
Plaintiff shall be allowed 35 days to file the required affidavit, if he desires to seek reinstatement
of this claim. The certificate of merit must also be filed, in accordance with the applicable
section of §5/2-622(a). Should Plaintiff fail to timely file the required affidavit/certificate of
merit, the dismissal of Count 4 may become a dismissal with prejudice. See FED. R. CIV. P.
41(b).
Pending Motions
Plaintiff’s motion for recruitment of counsel (Doc. 3) shall be referred to the United
States Magistrate Judge for further consideration.
The motion for service of process at government expense (Doc. 4) is TERMINATED
AS MOOT. No such motion is necessary for a Plaintiff who has been granted leave to proceed
in forma pauperis (“IFP”). The Court shall order service on all defendants who remain in the
action following threshold review under § 1915A. 28 U.S.C. § 1915(d).
Disposition
COUNTS 2 and 4 are DISMISSED without prejudice for failure to state a claim upon
which relief may be granted. Defendants RAINS, MARTIN, and SLICKENMEYER are
DISMISSED from this action without prejudice.
IT IS FURTHER ORDERED that if Plaintiff wishes to move the Court to reinstate the
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dental malpractice/negligence claim in COUNT 1 against Defendant NARODISTKY, Plaintiff
shall file the required affidavit pursuant to 735 Ill. Comp. Stat. §5/2-622, within 35 days of the
date of this order (on or before January 11, 2018). Further, Plaintiff shall timely file the required
written report/certificate of merit from a qualified health professional, in compliance with §5/2622. Should Plaintiff fail to timely file the required affidavit or report, the dismissal of COUNT
1 may become a dismissal with prejudice.
The Clerk of Court shall prepare for Defendants NARODISTKY and SANDHU: (1)
Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6
(Waiver of Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the
Complaint, and this Memorandum and Order to each Defendant’s place of employment as
identified by Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons
(Form 6) to the Clerk within 30 days from the date the forms were sent, the Clerk shall take
appropriate steps to effect formal service on that Defendant, and the Court will require that
Defendant to pay the full costs of formal service, to the extent authorized by the Federal Rules of
Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. This information shall be used only for sending
the forms as directed above or for formally effecting service. Any documentation of the address
shall be retained only by the Clerk. Address information shall not be maintained in the court file
or disclosed by the Clerk.
Defendants are 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).
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Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United States
Magistrate Judge Stephen C. Williams for further pre-trial proceedings, which shall include a
determination on the pending motion for recruitment of counsel (Doc. 3).
Further, this entire matter shall be REFERRED to United States Magistrate Judge
Williams 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.
If judgment is rendered against Plaintiff, and the judgment includes the payment of costs
under § 1915, Plaintiff will be required to pay the full amount of the costs, notwithstanding that
his application to proceed in forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
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: December 7, 2017
s/ MICHAEL J. REAGAN
Chief Judge
United States District Court
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