“28 U.S.C. §1915(e)(2) ... directs district courts to screen all complaints accompanied by an IFP request for failure to state a claim, among other things[.]”
How later courts described this case
- “28 U.S.C. §1915(e)(2) ... directs district courts to screen all complaints accompanied by an IFP request for failure to state a claim, among other things[.]”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRCT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
VICKI J. DENNY, )
)
Plaintiff, )
)
vs. ) No. 24-3327
)
MEMORIAL HOSPITAL )
SPRINGFIELD, )
)
Defendant. )
REPORT AND RECOMMENDATION
This case has been assigned to the undersigned Magistrate
Judge to rule on the Motion for Leave to Proceed as a pauper [Doc. 2]
and the Motion to Request Counsel [3], which necessarily requires a
review of the complaint [1]. Since not all parties have entered their
appearance and consented to magistrate judge jurisdiction, this
Court issues a Report and Recommendation for consideration by a
District Judge. See 28 U.S.C. §636(b)(1)(b); Federal Rule of Civil
Procedure 72(b).
For the reasons set forth below, this Court RECOMMENDS
plaintiff's Motion for Leave to Proceed In Forma Pauperis [Doc. 2] be
DENIED and the Motion to Request Counsel [Doc. 3] DENIED.
Plaintiff filed the instant lawsuit [Doc. 1] as a pro se litigant.
She completed a form provided by this Court for pro se civil rights
actions indicating the basis of jurisdiction was both a federal
question and diversity [Doc. 1, p. 3]. Plaintiff lists her address as
Springfield, Illinois, and the address of defendant as Springfield,
Illinois. Jurisdiction cannot lie on the basis of diversity. Page v.
Democratic National Committee, 2 F.4th 630, 634 (7th Cir.
2021)(federal diversity jurisdiction for a civil matter requires a
controversy that exceeds the sum or value of $75,000 and (as
relevant here) the action must be between citizens of different States
or citizens of a State and citizens or subjects of a foreign state). See
28 U.S.C. §1332(a).
Plaintiff alleges in the complaint that hospital staff refused to
feed and provide her mother with water or even ice chips [Doc. 1, p.
4]. Plaintiff alleges “groce (sic) negligence” [Doc. 1, p. 4]. Nowhere in
the complaint does plaintiff allege a federal question against the
defendant. Rather, the allegations indicate a claim that arises under
state law for acts of negligence or gross negligence, which belong in
State court. See, e.g., Dobrzeniecki v. Brown, 2015 WL 2208341 (May
8, 2025)(medical malpractice claims sound in state law and a federal
court does not err in refusing to exercise jurisdiction or dismiss a
medical malpractice claim in favor of state court, since Illinois courts
are highly experienced at addressing medical malpractice claims
arising under Illinois law).
When granting a motion for pauper status, a court authorizes a
lawsuit to proceed without prepayment of fees. Although the Prison
Litigation Reform Act (“PLRA”) (28 U.S.C. §1915(a)(1)) significantly
changed the responsibilities of a district court in reviewing pro se
complaints and in in forma pauperis motions, the Seventh Circuit
has clarified that the PLRA “changed §1915 not only for cases
brought by prisoners, but in some respect for all indigent
litigants.” Hutchinson v. Spink, 126 F.3d 895, 899 (7th Cir. 1997).
Under the PLRA, the Court must screen all complaints filed by
plaintiffs seeking to proceed in forma pauperis, regardless of whether
the plaintiff is a prisoner, and dismiss the complaint if (a) the
allegation of poverty is untrue; (b) the action is frivolous or malicious;
(c) the action fails to state a claim upon which relief can be granted;
or (d) the action seeks monetary relief against a defendant immune
to such relief. See 28 U.S.C. § 1915(e)(2).
The Court is satisfied plaintiff is indigent. In her application to
proceed without prepayment of fees, plaintiff signed an affidavit
reflecting that she receives a minimal monthly income of $1,200 in
disability benefits; has no assets; and her rent and utilities are the
same as her monthly income [Doc. 2].
The inquiry of whether plaintiff should be granted pauper status
does not end with her affidavit, however. The Court must also
consider whether plaintiff's complaint satisfies the requirements
of 28 U.S.C. §1915(e)(2). A pro se filing is to be liberally construed,
because “a pro se complaint, however inartfully pleaded, must be
held to less stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007).
When a plaintiff seeks to proceed in forma pauperis, a court is
authorized to dismiss the action at any time if it determines that the
action is frivolous or malicious, fails to state a claim upon which relief
may be granted, or seeks monetary relief against a defendant who is
immune from such relief. See 28 U.S.C. § 1915(e)(2)(B); Luevano v.
Wal-Mart Stores, Inc., 722 F.3d 1014, 1018, 1027 (7th Cir. 2013)(“28
U.S.C. §1915(e)(2) ... directs district courts to screen all complaints
accompanied by an IFP request for failure to state a claim, among
other things[.]”).
Claims may be dismissed at screening when it is clear on the
face of the complaint that they are barred by the statute of
limitations. See Dickens v. Illinois, 753 Fed. App'x 390, 392 (7th Cir.
2018)(citing Jones v. Bock, 549 U.S. 199, 215 (2007)). The claims in
this case appear to be brought on a theory of negligence or medical
malpractice. Illinois law prescribes at 735 ILLCS 13-212(a):
No action for damages for injury or death against any
physician . . . registered nurse or hospital duly licensed
under the laws of this State, whether based upon tort, or
breach of contract, or otherwise, arising out of patient care
shall be brought more than 2 years after the date on which
the claiming knew or should have known, or received
notice in writing of the existence of the injury or death for
which damages are sought in the action whichever occurs
first, but in no event shall such action be brought more
than 4 years after the date on which occurred the act or
omission or occurrence alleged in such action to have been
the cause of such injury or death.
In the complaint filed on November 20, 2024 [Doc. 1], plaintiff did not
allege when her mother was in the hospital; when her mother was
discharged; or whether plaintiff has been appointed as the
administrator for her mother’s estate. However, there are medical
records from Memorial Medical Center Emergency Department
attached to the complaint when plaintiff’s mother was seen for a
potential stroke on September 20, 2022 [Doc. 1, p. 11], and was
discharged on September 27, 2022 [Doc. 1, pp. 12, 15]. Thus, it is
unclear whether plaintiff is the appropriate party to bring this action
and whether it is time barred.
Considering the liberal standard by which plaintiff's complaint
is to be judged, she has not adequately pled a violation of federal law
and there is no diversity of the parties. However, the complaint does
not, necessarily, fail to state a cause of action at all. Rather, the
complaint could state a cause of action for negligence or medical
malpractice that could be maintained in state court. Accordingly,
this Court recommends denying plaintiff leave to proceed in
forma pauperis [Doc. 2] in this Court and dismissing the federal
action.
Plaintiff also filed a Motion to Request Counsel [Doc. 3]. Should
the District Court Judge adopt this Report and Recommendation, the
Motion to Request Counsel [Doc. 3] would be moot.
However, this Court recommends denial of the Motion to
Request Counsel on alternative grounds. When presented with a
request to appoint counsel, the Court makes the following inquiries:
(1) has the indigent plaintiff made a reasonable attempt to obtain
counsel or effectively been precluded from doing so, and (2) given the
difficulty of the case, does the plaintiff appear competent to litigate it
herself. Pruitt v. Mote, 503 F.3d 647, 654-55 (7th Cir. 2007). Plaintiff
has not provided the court with sufficient information to indicate
plaintiff has met her threshold burden in attempting to recruit
counsel on her own. This Court recommends plaintiff’s Motion to
Recruit Counsel [Doc. 3] be DENIED.
IT IS THEREFORE RECOMMENDED:
1. Plaintiff’s Motion for Leave to Proceed In Forma Pauperis
[Doc. 2] be DENIED.
2. The Complaint [Doc. 1] be DISMISSED for lack of jurisdiction.
3. Plaintiff’s Motion to Request Counsel [Doc. 3] be DENIED.
4. Plaintiff is advised any objection to this Report and
Recommendation must be filed in writing with the Clerk
within fourteen (14) days after service of this Report and
Recommendation. FED. R. CIV. P. 72(b)(2); 28 U.S.C.
§636(b)(1). Failure to object will constitute a waiver of
objections on appeal. Johnson v. Zema Systems Corp., 170
F.3d 734, 739 (7th Cir. 1999); Lorentzen v. Anderson Pest
Control, 64 F.3d 327, 330 (7th Cir. 1995).
ENTERED December 2, 2024.
/s Karen L. McNaught
KAREN L. MCNAUGHT
UNITED STATES MAGISTRATE JUDGE