Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge Robert M. Dow, Jr. Sitting Judge if Otherthan Assigned Judge

CASE NUMBER 12 C 49 DATE 8/23/2012

CASE TITLE Archie Brown (110N04127) vs. Roseland Community Hospital, et al. 

DOCKET ENTRY TEXT

Defendants’ motion to dismiss [24] is granted in part and denied in part. To the extent the Third Amended

Complaint asserts state-law claims of negligence or malpractice, the claims are dismissed. The Court will read

the allegations in the Third Amended Complaint as asserting only deliberate indifference claims. The motion

to dismiss is denied with respect to Defendants’ contention that they cannot be considered state actors under 42

U.S.C. § 1983. Defendants are directed to answer the Third Amended Complaint or otherwise plead within 30

days of this order. 

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

Plaintiff Archie Brown, currently incarcerated at the Lake County Jail, has three related suits concerning

his need psychiatric medication and care in April and May 2010. In case number 10 C 3609, Plaintiff alleges

that during an interrogation following his arrest, two Chicago police detectives ignored his complaints that he

needed his psychiatric medication and that he was hearing voices telling him to kill himself. Allegedly, when

the two detectives left the interrogation room, Plaintiff tore open a Coke can and cut his wrist. Plaintiff was

subsequently taken to Roseland Community Hospital (“Roseland”), where he was treated by Dr. Sajjad. The

instant suit is against Dr. Sajjad and Roseland. Plaintiff alleges that Dr. Sajjad refused to refer Plaintiff for a

psychiatric evaluation or provide him with his prescribed medication, but instead, only treated his wrist. Plaintiff

was then taken to Cook County Jail, where jail officers also allegedly ignored Plaintiff’s need for psychiatric care

and medication. A month later, Plaintiff again attempted suicide by hanging himself. Plaintiff’s suit 10 C 3610

is against Cook County Jail officials. 

Currently before the Court is a motion to dismiss filed by Dr. Sajjad and Roseland (“Defendants”). They

contend: (1) Plaintiff may not bring state-law claims of negligence or malpractice against them, given that the

complaint did not include a certifying physician’s report in accordance with Illinois law 735 ILCS 5/2-622, and

(2) Plaintiff may not bring federal civil rights claims against the Defendants under 42 U.S.C. § 1983 because the

Defendants are not state actors. For the following reasons, the Court grants in part and denies in part their

motion.

When reviewing a motion to dismiss, a court considers to be true all well pleaded allegations, as well as

any inferences reasonably drawn therefrom. Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). The

purpose of a motion to dismiss is not to determine whether a plaintiff will ultimately succeed, but whether the

complaint sufficiently asserts facts, which when accepted as true, state a valid and plausible claim for relief. 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The complaint must at least “plausibly suggest that the plaintiff has

a right to relief, raising that possibility above a ‘speculative level.’” E.E.O.C. v. Concentra Health Services, Inc.,

496 F.3d 773, 776 -77 (7th Cir. 2007); citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). If a

plaintiff pleads facts demonstrating that he has no claim, a court may dismiss the complaint. McCready v. eBay,

12 C 49 Archie Brown (N-21714) vs. Roseland Community Hospital, et al. Page 1 of 4
STATEMENT

Inc., 453 F.3d 882, 888 (7th Cir. 2006); Tamayo, 526 F.3d at1086. A court may also dismiss claims, to which

affirmative defenses apply, if the defenses are so plain from the face of the complaint such that the claim can be

regarded as frivolous. Turley v. Gaetz, 625 F.3d 1005, 1013 (7th Cir. 2010), citing Walker v. Thompson, 288

F.3d 1005, 1009-10 (7th Cir. 2002).

Defendants’ contention that Brown cannot bring state-law claims because he did not include a certifying

physician’s report with his complaint is correct. Although Plaintiff’s Third Amended Complaint (which is

actually the first amended complaint), for the most part, asserts only federal § 1983 claims, he does state at the

beginning of the complaint that Dr. Sajjad and Roseland should be held liable for deliberate indifference,

“medical negligence,” and “negligent failure to identify mental illness.” [12 at 1.] The complaint thus appears

to include state-law claims of negligence against both Defendants. 

Illinois law requires a plaintiff to file a physician's report with every complaint alleging malpractice. 735

ILCS 5/2-622. The report must affirm that a qualified, licensed physician has reviewed the case and determined

that “there is a reasonable and meritorious cause for the filing of such action.” 5/2-622(a)(1); see also Sherrod

v. Lingle, 223 F.3d 605, 613–14 (7th Cir. 2000). This rule is a substantive one, as opposed to simply procedural,

and thus applies to Illinois state-law claims filed in federal court. Warren ex rel. Warren v. Dart, No. 09 C 3152,

2010 WL 4883923 at *10 (N.D. Ill. Nov. 24, 2010) (Dow, J.), citing Chapman v. Chandra, No. 06-cv-651, 2007

WL 1655799, at *3–4 (S.D. Ill. Jun. 5, 2007) (Reagan, J.) (collecting cases). Neither the Third Amended

Complaint nor Plaintiff’s original complaint includes a physician’s report. The lack of the physician’s report thus

warrants the dismissal of any state-law medical claims. 

Whether the dismissal is with or without prejudice is within the discretion of this Court. Sherrod, 223

F.3d at 613, citing McCastle v. Sheinkop, 121 Ill.2d 188, 520 N.E.2d 293, 295-96 (Ill. 1987). Courts have gone

both ways with whether to dismiss with or without prejudice. Sherrod, 223 F.3d at 613-14 (where the

physician’s report filed with the complaint was insufficient, dismissal should be without prejudice to allow the

opportunity to cure); Warren ex rel. Warren, 2010 WL 4883923 at *12 (state malpractice claims were dismissed

without prejudice to allow plaintiff to submit a physician’s report); but see Hahn v. Walsh, 686 F. Supp. 2d 829,

831, 833 (C.D. Ill. 2010); Hill v. C.R. Bard, Inc., 582 F. Supp. 2d 1041, 1045 (C.D. Ill. 2008). (both courts

holding that the absence of a report with a complaint, as opposed to a incomplete or insufficient report as in

Sherrod, warranted dismissal with prejudice of the state-law claims).

In the instant case, dismissal with prejudice is appropriate. Although the introduction of the Third

Amended Complaint states that Plaintiff seeks to sue both Defendants for “medical negligence” and a “negligent

failure to identify mental illness,” and Plaintiff occasionally describes Dr. Sajjad’s actions as a “negligent failure

to detect” (12 at 1, 3), Plaintiff predominantly describes Dr. Sajjad’s actions as being “with malice,” 

“deliberate[ly] indifferent,” and a deliberate “turning a blind eye” to Plaintiff’s condition. Id. at 3-6. 

Furthermore, in response to the motion to dismiss the state-law claims under 5/2-622, Plaintiff does not state that

he seeks to supplement his complaint with a certifying physician’s report, but instead, states that his complaint

should not be dismissed because he sufficiently alleged federal claims of deliberate indifference. Pl.’s Resp. at

2. Accordingly, the Court dismisses with prejudice the state-law claims of medical negligence, to the extent such

claims are included in the Third Amended Complaint. The Court will construe Plaintiff’s allegations as asserting

only § 1983 claims without any pendent state-law claims. 

With respect to Defendants’ contention that Plaintiff may not pursue § 1983 claims against them because

they are not state actors, their motion to dismiss is denied. Civil rights claims must involve some type of

government action. To state a § 1983 civil rights claim, a plaintiff must sufficiently allege that: (1) a person

acting under color of state law, i.e., a state actor (2) deprived him of a right, privilege, or immunity secured by

12 C 49 Archie Brown (N-21714) vs. Roseland Community Hospital, et al. Page 2 of 4
STATEMENT

the U.S. Constitution or federal law. London v. RBS Citizens, N.A., 600 F.3d 742, 745-46 (7th Cir. 2010). 

The Defendants contend, and Plaintiff does not dispute, that Roseland, as well as its doctors and

employees, are private parties. The Supreme Court has recognized, however, that private physicians may be

deemed state actors when they provide medical care to inmates at a prison. West v. Atkins, 487 U.S. 42, 54

(1988) Although the medical care in West was provided at a prison, the Seventh Circuit has stated that “nothing

in [West’s] analysis suggests that the result necessarily would have been different had the care been provided at

a private facility.” Rice ex rel. Rice v. Correctional Medical Services, 675 F.3d 650, 672 (7th Cir. 2012) (citing

Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 827 (7th Cir.2009) (“The state clearly does not relieve

itself of its responsibility to provide medical care solely on account of the venue where those services are

rendered.”)); see also Conner v. Donnelly, 42 F.3d 220, 225–26 (4th Cir. 1994) (deeming private physician who

treated prisoner's injury in physician's office outside prison to be state actor).

When determining whether private physicians and hospitals may be considered state actors, courts have

looked to the relationship between the physician and prison or governmental entity and whether “the care was

provided under contract with the prison in fulfillment of the prison's obligation to provide for the inmate's

medical needs.” Rice 675 F.3d at 672. Where a private physician or hospital voluntarily agreed to provide

services to inmates, the providing of such services may be considered state action. Id. at 673 (although the

Seventh Circuit indicated that state action would exist if there was an agreement to provide psychiatric services

to jail inmates; the court did not actually answer the question but instead found no deliberate indifference). 

Conversely, an emergency room acceptance of an inmate as a patient “does not mean that it has agreed to step

into the shoes of the state and assume the state's responsibility toward these persons.” Rodriguez v. Plymouth

Ambulance Service, 577 F.3d 816, 828 (7th Cir. 2009). “[A]n emergency medical system that has a preexisting

obligation to serve all persons who present themselves for emergency treatment hardly can be said to have

entered into a specific voluntary undertaking to assume the state's special responsibility to incarcerated persons.” 

Id. at 827-28 (citing Emergency Medical Treatment and Active Labor Act, 42 U.S.C. § 1395dd et seq.). 

This Court cannot determine from the complaint alone whether there was an arrangement between

Roseland and the Chicago Police Department to accept arrestees for treatment. As noted by Plaintiff in his

response to the motion to dismiss, his Third Amended Complaint has a pre-printed form with Roseland letterhead

titled “Arrestee Medical Clearance Report,” which suggests a preexisting agreement for Roseland to provide

medical care for arrested persons. See Third Am. Compl. at Ex. B. Defendants cite to Rappe v. McGee, No. 11

C 1393, 2011 WL 6102016 at *3 (N.D. Ill. Dec. 7, 2011) (Kennelly, J.), wherein Northwestern Memorial

Hospital and physicians there were dismissed from a § 1983 action as non-state actors. The complaint in that

case, however, contained allegations and exhibits indicating that Rappe was taken to Northwestern only as an

emergency patient and that no contract existed between it and Metropolitan Correctional Center. Id. Plaintiff’s

Exhibit B to the complaint in the instant case suggests that Roseland may have “enter[ed] into a contractual

relationship with the [City of Chicago] to provide specific medical services to inmates.” Rodriguez, 577 F.3d

at 827. If a more fully developed record demonstrates that no agreement existed between Roseland and the City,

and that Dr. Sajjad’s treatment of Plaintiff was solely because Plaintiff was presented as an emergency patient,

Defendants may re-raise their argument in a summary judgment motion. However, Plaintiff’s Third Amended

Complaint cannot be dismissed on a motion to dismiss based upon Defendants’ contention that they cannot be

considered state actors under § 1983.

For the reasons stated above, Defendants’ motion to dismiss [24] is granted in part and denied in part. 

To the extent the Third Amended Complaint asserts state-law claims of negligence or malpractice, the claims are

dismissed. The Court will read the allegations in the Third Amended Complaint as asserting only deliberate

indifference claims. The motion to dismiss is denied with respect to Defendants’ contention that they cannot be

12 C 49 Archie Brown (N-21714) vs. Roseland Community Hospital, et al. Page 3 of 4
STATEMENT

considered state actors under § 1983. Defendants are directed to answer the Third Amended Complaint or

otherwise plead within 30 days of the date of this order. 

 

12 C 49 Archie Brown (N-21714) vs. Roseland Community Hospital, et al. Page 4 of 4