Glenn v. United States, Case No. 3:16-cv-81-JPG-DGW

RANDY GLENN, Plaintiff, v. UNITED STATES OF AMERICA, J.S. WALTON, and M. BAGWELL, Defendants.

Case No. 3:16-cv-81-JPG-DGW

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS

April 7, 2017

REPORT AND RECOMMENDATION

WILKERSON, Magistrate Judge:

This matter has been referred to United States Magistrate Judge Donald G. Wilkerson by United States District Judge J. Phil Gilbert pursuant to 28 U.S. C. § 636(b)(1)(B), Federal Rule of Civil Procedure 72(b), and SDIL-LR 72.1(a) for a Report and Recommendation on Defendants' Motion to Dismiss, or in the Alternative for Summary Judgment (Doc. 32). For the reasons set forth below, it is RECOMMENDED that the Motion be DENIED IN PART AND GRANTED IN PART, and that the Court adopt the following findings of fact and conclusions of law.

FINDINGS OF FACT

Plaintiff Randy Glenn, an inmate in the custody of the United States Bureau of Prisons ("BOP"), filed this lawsuit asserting he lost sight in his right eye after receiving inadequate medical care for a basketball injury he suffered while at the United States Penitentiary in Marion, Illinois ("USP Marion") in June, 2014. Following an initial screening of Plaintiff's complaint pursuant to 28 U.S.C. § 1915A, Plaintiff was allowed to proceed on the following claims:

Count One: Defendant United States is liable under the FTCA for Plaintiff's vision loss and eye discoloration, which allegedly resulted from a delay or denial of proper medical care by federal officials; and Count Two: Defendants Bagwell and Walton violated Plaintiff's right to be free from cruel and unusual punishment, in violation of the Eighth Amendment and Bivens, when they failed to provide him with adequate medical care for the injuries he sustained on June 9, 2014.

On September 14, 2016, Defendants filed the motion to dismiss, or in the alternative, motion for summary judgment that is now before the Court (Doc. 32). In their motion, Defendants set forth a number of arguments for dismissal and/or summary judgment. First, Defendants argue that Plaintiff's FTCA Claim, designated as Count 1, should be dismissed for Plaintiff's failure to comply with 735 ILCS 5/2-622. Further, Defendants argue that Defendant Bagwell is entitled to summary judgment as he is immune from suit under the Public Health Service Act, 42 U.S.C. § 233(a). Next, Defendants contend that dismissal of Defendant Walton is appropriate as Plaintiff's complaint fails to state a claim against this Defendant and, in any event, Defendants were not deliberately indifferent to Plaintiff's medical needs. Finally, Defendants Bagwell and Walton assert they are entitled to qualified immunity.

LEGAL STANDARDS

A. Dismissal Pursuant to Rule 12(b)(6)

In considering a motion to dismiss, the Court accepts as true all well-pleaded allegations in the complaint and draws all possible inferences in favor of the plaintiff. See Killingsworth v. HSBC Bank Nevada, N.A., 507 F.3d 614, 618 (7th Cir. 2007) (quotations omitted). A plaintiff need not set out all relevant facts or recite the law in his or her complaint; however, the plaintiff must provide a short and plain statement that shows that he or she is entitled to relief. See FED. R. CIV. P. 8(a)(2). Thus, a complaint will not be dismissed if it "contain[s] sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556U.S. 662, 679 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." 556 U.S. at 678. Additionally, "[a]llegations of a pro se complaint are held 'to less stringent standards than formal pleadings draft by lawyers ... Accordingly, pro se complaints are liberally construed." Alvarado v. Litscher, 267 F.3d 648, 651 (7th Cir. 2001) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations omitted).

B. Summary Judgment Standard

Summary judgment is proper only if the moving party can demonstrate that there is no genuine issue as to any material fact and the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Ruffin Thompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005); Black Agents & Brokers Agency, Inc. v. Near North Ins. Brokerage, Inc., 409 F.3d 833, 836 (7th Cir. 2005). The moving party bears the burden of establishing that no material facts are in genuine dispute; any doubt as to the existence of a genuine issue must be resolved against the moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Lawrence v. Kenosha County, 391 F.3d 837, 841 (7th Cir. 2004). A moving party is entitled to judgment as a matter of law where the non-moving party "has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof." Celotex, 477 U.S. at 323. "[A] complete failure of proof concerning an essential element of a nonmoving party's case necessarily renders all other facts immaterial." Id. The Seventh Circuit has stated that summary judgment is "the put up or shut up moment in a lawsuit, when a party must show what evidence it has that would convince a trier of fact to acceptits version of the events." Steen v. Myers, 486 F.3d 1017, 1022 (7th Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005) (other citations omitted).

CONCLUSIONS OF LAW

In the motion now before the Court, Defendants seek dismissal of Plaintiff's complaint, or in the alternative, move for summary judgment. Defendants attached a number of exhibits in support of their motion. Significantly, when a party attaches a document to a motion to dismiss, Rule 12(d) prescribes that the court must either convert the 12(b)(6) motion into a motion for summary judgment, or exclude the documents attached to the motion to dismiss and continue its analysis under Rule 12. Levenstein v. Salafsky, 164 F.3d 345, 347 (7th Cir. 1998); see also FED. R. CIV. P. 12(d). However, a court may consider documents attached to a motion to dismiss without converting it to a motion for summary judgment if they are referred to in the plaintiff's complaint and if they are central to the plaintiff's claim. Levenstein, 164 F.3d at 647 (quoting Wright v. Associated Ins. Cos., Inc., 29 F.3d 1244, 1248 (7th Cir. 1994)). This narrow exception is "aimed at cases interpreting, for example, a contract" and "is not intended to grant litigants license to ignore the distinction between motions to dismiss and motions for summary judgment." Id. The district court ultimately has discretion in determining whether to convert a motion to dismiss into a motion for summary judgment. Levenstein, 164 F.3d at 347 (citing Venture Associations Corp. v. Zenith Data Systems Corp., 987 F.2d 429, 431 (7th Cir. 1993)).

It is apparent that the documents submitted by Defendants do not fit the narrow exception recognized by the Seventh Circuit. As such, this Court would need to exercise its discretion and convert Defendants' motion into a motion for summary judgment, pursuant to Rule 12(d), in order to consider any of the attachments appended to Defendants' motion. The Court declines toexercise its discretion in such a manner as allowing Defendants to proceed on a motion for summary judgment at this juncture is premature¹. Notably, at the time Defendants filed their motion, Plaintiff had not had the opportunity to engage in discovery to provide support for his allegations (and discovery has not yet closed). As such, the Court analyzes Defendants' motion as a motion to dismiss pursuant to Rule 12(b)(6) and declines to convert it to a motion for summary judgment. In this vein, the Court considers Defendants' arguments in turn, as set forth below.

A. Dismissal of Count One, Plaintiff's FTCA Claim against the United States of America

Defendants assert Plaintiff's FTCA claim should be dismissed due to Plaintiff's failure to comply with 735 ILCS § 5/2-622. The Court agrees.

At the outset, the Court remarks that Plaintiff's FTCA claim is governed by the substantive law of the State of Illinois (as the facts underlying said claim occurred at USP-Marion). See 28 U.S.C. § 1346(b), 2674; see also Bowen v. United States, 570 F.2d 1311, 1315-16 (7th Cir. 1978).

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 medical practice," 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; (2) that the affiant was unable to obtain such a consultation before the expiration of the statute of limitations, and the affiant has not previously voluntarily dismissed anaction based on the same claim; 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). Failure to file the required affidavit is grounds for mandatory dismissal of the claim. See 735 ILCS § 5/2-622; Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir. 2000). However, whether dismissal should be with or without prejudice is up to the sound discretion of the court. Sherrod, 223 F.3d at 614.

As the prevailing rule in this Court (and elsewhere in this Circuit), is that the §2-622 certificate of merit requirement is a substantive rule of Illinois law for purposes of claims brought under the FTCA, Plaintiff was required to file a certificate of merit along with...