Henderson v. Wexford Health Sources, Inc. et al
ORDER: The 37 Motion for Summary Judgment is DENIED at this time. Plaintiff has until May 31, 2021, to file a certificate of merit as required by 735 ILCS 5/2-622. Plaintiff's request to file an amended complaint is GRANTED, and the amended co mplaint shall be filed by April 15, 2021. The 46 Motion to Dismiss is DENIED as moot. Defendants are, however, given leave to submit a new motion to dismiss after Plaintiff's amended pleadings have been filed. Signed by Judge Stephen P. McGlynn on 4/1/2021. (jrj)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
Case No. 20-cv-01076-SPM
WEXFORD HEALTH SOURCES, INC.,
CHRISTINE BROOKS, 1 and
JOHN & JANE DOES,
MEMORANDUM AND ORDER
MCGLYNN, District Judge:
Plaintiff Tyler Henderson commenced this suit by filing a Complaint alleging
constitutional violations pursuant to 42 U.S.C. § 1983 (Counts I and II) and a state law claim for
medical malpractice (Count III). (Doc. 1). Plaintiff claims he received inadequate medical
treatment for his serious medical needs while incarcerated at Lawrence Correctional Center from
April 2019 until January 2020. Pending before the Court is a Partial Motion for Summary
Judgment filed by Defendants Wexford Health Sources, Inc. (“Wexford”), Tammy Welty,
Kimberly Woods, Michele Gillard, and Christine Brooks. (Doc. 37). Also, before the Court is a
Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6) filed by Defendant Lorie
Cunningham. (Doc. 46). Plaintiff has filed responses in opposition to both motions. (Docs. 44, 47).
Now that Defendants have identified their full and correct names in the pending motions, the Clerk of Court is
directed to modify certain Defendants’ names accordingly: Lori Cunningham (“L. Cunningham”), Kimberly Woods
(“Kim Woods”), and Christine Brooks (“Chris Brooks”). (See Docs. 37, 46).
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Federal Rule of Civil Procedure 56 governs motions for summary judgment. “Summary
judgment is appropriate ‘if the movant shows that there is no genuine dispute as to any material
fact and that the movant is entitled to judgment as a matter of law.’” Anderson v. Donahoe, 699
F.3d 989, 994 (7th Cir. 2012) (quoting FED. R. CIV. P. 56(a)). Accord Archdiocese of Milwaukee
v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014). A genuine issue of material fact remains “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Accord Bunn v. Khoury Enterpr., Inc., 753 F.3d
676, 681-82 (7th Cir. 2014).
In assessing a summary judgment motion, a district court views the facts in the light most
favorable to, and draws all reasonable inferences in favor of, the nonmoving party. Donahoe, 699
F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). As the Seventh Circuit has
explained, as required by Rule 56(a), “we set forth the facts by examining the evidence in the light
reasonably most favorable to the non-moving party, giving [him] the benefit of reasonable,
favorable inferences and resolving conflicts in the evidence in [his] favor.” Spaine v. Cmty.
Contacts, Inc., 756 F.3d 542, 544 (7th Cir. 2014).
Defendants argue that they are entitled to partial summary judgment on Plaintiff’s Count
III, medical malpractice claim brought pursuant to Illinois state law, 735 ILCS 5/2-622, because
Plaintiff has not complied with state statute and filed a certificate of merit along with his
Complaint. (Doc. 37; Doc. 38, p. 5-6) (citing Young v. United States, 942 F. 3d 349 (7th Cir.
2019)). Section 2-622 requires the plaintiff to file with the complaint an affidavit of merit and
report of a reviewing health professional opining that there is meritorious basis for bringing the
action in medical malpractice suits. Furthermore, the statute provides that failure to file an affidavit
is “grounds for dismissal.” (Doc. 38, p. 3) (citing 735 ILCS 5/2-622(g)). Because Plaintiff did not
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file an affidavit and report with the Complaint and has not filed them to date, Defendants contend
they are entitled to summary judgment as to Count III.
The Seventh Circuit made clear in Hahn v. Walsh that Section 2-622 applies to malpractice
litigation in federal court. 762 F. 3d 617, 633 (7th Cir. 2014). And in Young v. United States, the
Seventh Circuit clarified that when a plaintiff failed to provide the required affidavit and report,
the case was subject to summary judgment, rather than dismissal pursuant to Federal Rule of Civil
Procedure 12. 942 F. 3d 349 (7th Cir. 2019). Specifically, the Seventh Circuit reasoned that
“Section 5/2-622 applies in federal court to the extent that it is a rule of substance; but to the extent
that it is a rule of procedure it gives way to Rule 8 and other doctrines that determine how litigation
proceeds in a federal tribunal.” Id. at 351. Rule 8 of the Federal Rules of Civil Procedure “does
not require attachments [to the complaint]. . .supporting documents come later.” Id. Therefore,
because a “motion to dismiss asserts that the complaint is defective,” a “complaint in federal court
cannot properly be dismissed because it lacks an affidavit and report under §5/2-622.” Id. Rather,
dismissal for failure to provide the affidavit and report should occur on summary judgment, a
motion which can be filed “at any time.” Id. (citing FED. R. CIV. P. 56(b)). The Seventh Circuit
noted that “a defendant may submit a motion with its answer and ask for the court to grant summary
judgment because the plaintiff has not supplied the required affidavit and report.” However, a
district court may allow the nonmovant time to gather essential evidence. Id. at 351-52 (citing FED.
R. CIV. P. 56(d)).
As suggested in Young, Defendants have filed a motion for summary judgment along with
their Answer to the Complaint. However, the Court DENIES the motion at this time and will allow
Plaintiff additional time “to gather essential evidence” and comply with the requirements of
Section 2-622. Id. See also Ingram v. Wexford Health Sources, Inc., 2021 WL 615034 at *7 (S.D.
Ill. Feb. 17, 2021) (granting summary judgment where the plaintiff had been put on notice of the
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need for an affidavit and report and did not attempt to comply). Plaintiff shall have until May 31,
2021, to file the requisite affidavit and report. After such time, Defendants may refile their motion
for summary judgment, as needed.
MOTION TO DISMISS
In the motion to dismiss, Defendant Lorie Cunningham argues that the Complaint must be
dismissed as to her because Plaintiff has not put forth any allegations regarding her involvement
in or knowledge of the events alleged in the Complaint. (Doc. 46, p. 3). Specifically, she is only
mentioned once in the statement of facts regarding being provided notice that Plaintiff needed a
catheter, but nothing about her conduct. Plaintiff has not even named her as a party to any of the
In response, rather than contest the motion to dismiss, Plaintiff requests leave to file an
amended complaint, which will provide more detail of Defendant Cunningham’s involvement in
the medical treatment he received. Defendant Cunningham did not file a reply.
A party may amend it pleadings once as a matter of course within 21 days after service of
a motion under 12(b). FED. R. CIV. P. 15(a). “In all other cases, a party may amend its pleading
only with the opposing party’s written consent or the court’s leave. The court should freely give
leave when justice so requires.” FED. R. CIV. P. 15(a)(2). District courts have broad discretion to
deny leave to amend when the moving party has acted with undue delay, bad faith, dilatory motive,
or repeatedly failed to cure deficiencies; when amendment would be futile; or when it would cause
the opposing party undue prejudice. Stanard v. Nygren, 658 F.3d 792, 797 (7th Cir. 2011); Arreola
v. Godinez, 546 F.3d 788, 796 (7th Cir. 2008); Foman v. Davis, 371 U.S. 178, 182 (1962).
Here, Defendant Cunningham served a motion under Rule 12(b), and Plaintiff filed a
response and requested leave to amend within 21 days of service of that motion, and so, he may
amend as a matter of course. Although Plaintiff did not follow the Court’s local rules and submit
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a proposed amended complaint, see SDIL-LR 15.1, “the pleading rules favor decision on the merits
rather than technicalities.” Standard, 658 F. 3d at 800-01. Consequently, the Court GRANTS
Plaintiff’s request to file an amended complaint to correct his pleadings. Plaintiff has until April
15, 2021, to file his amended pleadings. Defendant Cunningham’s motion to dismiss is DENIED
as MOOT. Defendants are, however, given leave to submit a new motion to dismiss after
Plaintiff’s amended pleadings have been filed.
IT IS SO ORDERED.
DATED: April 1, 2021
s/Stephen P. McGlynn
STEPHEN P. MCGLYNN
United States District Judge
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