Brown v. State of Illinois

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

ALLEN BROWN, Jr.,

Plaintiff,

v. Case No. 23-CV-00107-SPM

WEXFORD HEALTH SOURCES, et

al.,

Defendants.

MEMORANDUM AND ORDER

McGLYNN, District Judge:

Before the Court are two Motions to Dismiss: one filed by Defendants Nicole

Brand, Rebecca Cooper, Angela Crain, Advup Lawrence, Carri Morris, Shane Reister,

and Anthony Wills1 (Doc. 121) and one filed by Defendants Glen Babich, Thena

Poteat, and Wexford Health Sources, Inc. (Doc. 126). Plaintiff Allen Brown, Jr. filed

a Response to each Motion to Dismiss. (Docs. 129, 130). Having been fully informed

of the issues presented, Defendants Brand, Cooper, Crain, Lawrence, Morris, Reister,

and Wills’ Motion to Dismiss is GRANTED in part and DENIED in part.

Defendants Babich, Poteat, and Wexford’s Motion to Dismiss is GRANTED in part

and DENIED in part.

1 On May 20, 2025, this Court granted Defendant Melissa Ogle’s request to join Defendants Brand,

Cooper, Crain, Lawrence, Morris, Reister, and Wills’s Motion to Dismiss (Doc. 121). (See Docs. 134,

135). Defendant Ogle filed a Response in which she reiterated her support for the arguments in Brand

et al.’s Motion to Dismiss. (See Doc. 136).

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff Allen Brown, Jr. is an individual in the custody of the Illinois

Department of Corrections (“IDOC”). (Doc. 1). He was incarcerated at Menard

Correctional Center from July 9, 2021 to May 19, 2022. (Id., ¶ 1). The crux of his

claims involves six days during 2021 when he was not provided his psychotropic

medication while incarcerated at Menard Correctional Center. (Doc. 120, ¶¶ 1, 40–

52).

Brown has been on “enforced medication status”—meaning that his

psychotropic medications are forcibly administered to him if he will not take them

himself—since July 2018. (See id., ¶ 19). When Brown first arrived at Menard on July

10, 2021, Defendant Poteat noted that Brown had “a history of ‘repeated self-injurious

behaviors’ and many suicide attempts, including a recent attempt in December 2020

while in custody at Joliet Treatment Center.” (Id., ¶ 20). Brown “had multiple old

scars and recently inserted metal paperclips and staples into his arms and legs” and

was determined to be “at moderate risk of suicide and at high risk of aggressive

behavior.” (Id). Additionally, “[w]ithin a week of his evaluation with Defendant

Poteat, Mr. Brown had swallowed several screws and was placed on continuous crisis

watch as a result.” (Id., ¶ 21). During time he was at Menard, Mr. Brown was

diagnosed with “bipolar disorder, PTSD, borderline personality disorder, antisocial

personality disorder, and substance use disorder.” (Id., ¶ 20). Brown spent some forty

days on crisis watch, from August 26, 2021 to October 6, 2021. (Id., ¶ 31).

Subsequently, on October 16–19 and 28–29, Brown’s psychotropic mediations were

not administered to him. (Id., ¶ 40). On October 28, “Mr. Brown inserted a screw into

his penis, punched the wall, and cut his testicle.” (Id., ¶ 43). He later cut his leg and

ingested “foreign bodies from a broken fan” on or around November 3 (id., ¶ 45) and

inserted a foreign object into both eyes on November 12 (id., ¶ 47). He was treated at

St. Louis University Hospital after both incidents. (Id., ¶¶ 46–47)

Brown filed his initial pro se Complaint on January 12, 2023; his Complaint

listed eighteen named defendants and alleged various claims pursuant to 42 U.S.C.

§ 1983. (See Doc. 1). This Court conducted preliminary review in accordance with 28

U.S.C. § 1915A on September 25, 2023. (Doc. 20). The Court permitted Brown’s

Eighth Amendment deliberate indifference claims against Wexford, Crain, Martin,

Morris, Lawrence, Poteat, Wills, Reister, and Nurse Jane Doe for failure to provide

him with his required medication on October 16, 17, 18, 19, 28, and 29, 2021 to

proceed into discovery. (See Doc. 20, p. 5). Defendants Cooper, Lawrence, Morris, and

Reister filed a Motion for Summary Judgment on exhaustion of administrative

remedies on September 9, 2024 (Doc. 94); this Court denied the Motion on March 6,

2025 (Doc. 112) and set a Scheduling Order on the same day (Doc. 113).

On October 4, 2024, Attorney Nicole Schult of Uptown People’s Law Center in

Chicago entered an appearance as counsel of record for Plaintiff Brown.2 (See Doc.

99). Plaintiff Brown filed a Motion to Amend his Complaint on March 21, 2025 (Doc.

118), which this Court granted on March 24, 2025 (Doc. 119). The Amended

Complaint alleges that following claims: (1) Eighth Amendment deliberate

indifference against Defendants Angela Crain, Kimberly Martin, Carrie Morris, Rob

2 Attorneys Shireen Jalali-Yazdi and Ian McCollum subsequently entered appearances on behalf of

Brown. (See Docs. 109, 111).

Jeffreys, Advup Lawrence, Thena Poteat, Anthony Wills, Lewis Shicker, Nicole

Brand, Melissa Ogle, Shane Reister, Melvin Hinton, and Glen Babich; (2) Eighth

Amendment failure to protect against Defendants Wills, Poteat, and Crain; (3) Eighth

Amendment deliberate indifference against Wexford Health Sources; (4) Illinois state

law institutional negligence against Wexford; (5) Illinois state law medical

malpractice against Defendants Poteat, Babich, and Reister; and (6) Illinois state law

medical malpractice against Wexford. (See Doc. 120).

The two groups of Defendants discussed supra filed the pending Motions to

Dismiss on April 4 and April 7, 2025, respectively.3 (See Docs. 121, 126). Brown

responded to each on May 5, 2025. (See Docs. 129, 130). Defendants Babich, Poteat,

and Wexford filed a Reply on May 19, 2025. (See Doc. 133).

APPLICABLE LAW AND LEGAL STANDARDS

In analyzing a motion to dismiss for failure to state a claim filed pursuant to

Federal Rule of Civil Procedure 12(b)(6), this Court must determine whether or not

the complaint contains “sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Court of Appeals

for the Seventh Circuit has explained that “‘[p]lausibility’ is not a synonym for

‘probability’ in this context, but it asks for ‘more than a sheer possibility that a

defendant has acted unlawfully.’” Bible v. United Student Aid Funds, Inc., 799 F.3d

633, 639 (7th Cir. 2015) (quoting Olson v. Champaign County, 784 F.3d 1093, 1099

3 See supra note 1.

(7th Cir. 2015)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss

does not need detailed factual allegations . . . [the] [f]actual allegations must be

enough to raise a right to relief above the speculative level . . . .” Twombly, 550 U.S.

at 555.

District courts are required by the Court of Appeals for the Seventh Circuit to

review the facts and arguments in Rule 12(b)(6) motions “in the light most favorable

to the plaintiff, accepting as true all well-pleaded facts alleged and drawing all

possible inferences in her favor.” Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th

Cir. 2008). “The purpose of a motion to dismiss is to test the sufficiency of the

complaint, not to decide the merits.” Gibson v. City of Chicago, 910 F.2d 1510, 1520

(7th Cir. 1990).

ANALYSIS

When assessing Brown’s Amended Complaint, the Court accepts the factual

allegations as true, liberally construing them in the plaintiff’s favor. Turley v.

Rednour, 729 F.3d 645 (7th Cir. 2013). Conclusory statements and labels, however,

are not enough. Id. The complaint must allege enough facts to “state a claim to relief

that is plausible on its face.” Alexander v. United States, 721 F.3d 418, 422 (7th Cir.

2013) (quoting Twombly, 550 U.S. at 570). That means “a plaintiff must do better

than putting a few words on paper that, in the hands of an imaginative reader, might

suggest that something has happened to her that might be redressed by the law.”

Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010). “[I]nstead, the plaintiff

must give enough details about the subject-matter of the case to present a story that

holds together.” Id. at 404.

I. Preliminary Review Pursuant to 28 U.S.C. § 1915A

Before delving too deeply into the analysis here, this Court must address an

argument made in both Motions to Dismiss. (See Docs. 121, 126). Citing the same

case (and using the exact same language), both groups of Defendants argue in the

alternative that the Amended Complaint must be subject to preliminary review

pursuant to 28 U.S.C. § 1915A. (See Doc. 121, p. 7; Doc. 126, p. 12). Section 1915A

does not distinguish between complaints filed pro se or by counsel. See id. § 1915A(a)

(“The court shall review, before docketing, if feasible or, in any event, as soon as

practicable after docketing, a complaint in a civil action in which a prisoner seeks

redress from a governmental entity or officer or employee of a governmental entity.”).

District courts have held that the preliminary screening requirement is not

mandatory for prisoners represented by counsel, as attorneys’ adherence to Federal

Rule of Civil Procedure 11 “tend[s] to substantially reduce the incidence of claims

that are frivolous or otherwise patently noncognizable on their face.” Simmons v.

CDCR, 49 F. Supp. 3d 700, 701 (E.D. Cal. 2014). “Screening of represented cases to

decipher the allegations and claims is usually unnecessary” when the inmate in

question is represented by counsel. See id. The case cited by the Defendants involved

an amended complaint filed pro se, not by counsel. See Bynum v. DTU Task Force,

No. 23-CV-02748-SMY, 2023 WL 8372827 (S.D. Ill. Dec. 4, 2023); (see Doc. 121, p. 7

(citing the same); Doc. 126, p. 12 (citing the same)). However, the preliminary review

standard is identical to that provided by Rule 12(b)(6). See, e.g., McNeil v. Salvation

Army, 754 F. App’x 469, 470 (7th Cir. 2019) (citing Luevano v. Wal-Mart Stores, Inc.,

722 F.3d 1014, 1027 (7th Cir. 2013)) (“We review dismissals under 28 U.S.C. §

1915(e)(2) de novo and apply the same standards that we apply to Rule 12(b)(6)

dismissals, taking McNeil’s well-pleaded allegations as true and viewing them in the

light most favorable to her.”).

Brown is now represented by counsel. (See Docs. 99, 109, 111). This means that

Brown’s attorneys are subject to Rule 11 sanctions if any of the claims in the Amended

Complaint are improper, frivolous, or lack evidentiary support. Moreover, the

Seventh Circuit has stated that § 1915A screening uses the same standard as does

Rule 12(b)(6). See McNeil, 754 F. App’x at 470 (citations omitted); Maddox v. Love,

655 F.3d 709, 718 (7th Cir. 2011) (citing Sanders v. Sheahan, 198 F.3d 626, 626 (7th

Cir. 1999)) (“We review a failure to state a claim under § 1915A in the same manner

as an ‘ordinary 12(b)(6) dismissal,’ so our review is de novo.”). Therefore, additional

screening under § 1915A is not required when the Court must already analyze the

Defendants’ Motions to Dismiss under Rule 12(b)(6). Thus, the Defendants’ requests

for additional § 1915A screening are denied.

II. Paragraphs 53 to 65 and 71 to 76 of the Amended Complaint

In both Motions to Dismiss (Docs. 121, 126), the Defendants argue that

Paragraphs 53 to 65 and 71 to 76 of Plaintiff Brown’s Amended Complaint should be

stricken because they are barred by the statute of limitations. (See Doc. 121, pp. 3–4;

Doc. 126, pp. 3–4). The relevant sections of Brown’s Amended Complaint discuss a

2007 class action lawsuit filed in the Central District of Illinois. (Doc. 120, ¶ 54 (citing

Rasho v. Baldwin, No. 07-cv-1298-MMM (C.D. Ill.)). Plaintiff Brown argues that the

Defendants were aware that there were issues with the mental health care offered at

Menard specifically because of this lawsuit. (See Doc. 120, ¶¶ 53–65, 71–76). The

Defendants argue that the instant lawsuit only concerns Plaintiff Brown’s missed

medications in October 2021 and that he “brings no allegation about specific

relationship with that class action lawsuit besides a general allegation that the

‘systemic problems’ identified in that class action lawsuit ‘were the moving force

behind the actions and omissions of the mental health professionals who interacted

with Mr. Brown at Menard in October 2021.’” (Doc. 121, p. 3 (quoting Doc. 120, ¶ 64)).

Brown argues that the new Amended Complaint “did not add new deliberate

indifference claims against Defendants Crain, Wills, Morris, Lawrence, Brand,

Reister, and Martin; it merely elaborated on the factual basis of the existing claims”

and that “it did not create any new defenses or objections that Defendants could not

have raised before.” (Doc. 129, p. 3). He argues that these paragraphs relate back to

the original complaint, that these additional facts “belong to a common core of

operative facts,” and that “Defendants can hardly argue that Mr. Brown’s

amendments resulted in unfair surprise.” (Doc. 130, p. 4). Brown insists that

“Defendants misunderstand Mr. Brown’s First Amended Complaint” because he

“does not set out any new legal allegations that relate back to the Rasho litigation,”

instead pleading “an expansion of facts already raised regarding Defendants’

participation in and knowledge of the Rasho litigation, and in maintaining the

constitutionally inadequate mental healthcare system that was the subject of Rasho.”

(Doc. 129, p. 4).

This Court does not find the Defendants’ arguments regarding the statute of

limitations vis-à-vis the Rasho litigation compelling here. Plaintiff Brown is not

bringing new claims in the paragraphs at issue in the Amended Complaint; he is

simply providing factual background for his renewed claims against the Defendants,

details that were lacking in his original pro se Complaint. (See Doc. 1). Moreover, this

Court can certainly take judicial notice of the Rasho litigation in accordance with

Federal Rule of Evidence 201; this is not what is at issue here, however. Now that

Plaintiff Brown is represented by counsel, they are attempting to provide additional

context to Brown’s claims, including those dismissed at this Court’s preliminary

review of his pro se petition. (See Doc. 20). Brown did not have the benefit of licensed

attorneys to assist with the drafting of his initial Complaint. While Plaintiff’s counsel

of record wishes to back up their client’s claims with facts (a Rule 8 requirement),

there is no reason to analyze the applicability of the Rasho litigation at this stage of

the case. Should Plaintiff Brown wish this Court to take judicial notice of Rasho

and/or argue for its applicability at summary judgment or at trial, Plaintiff’s counsel

is certainly able to do so. However, this Court does not see any reason to adjudicate

whether or not such details are permitted in the Amended Complaint; put another

way, neither party has indicated that they wish for the pending 12(b)(6) Motions to

be converted into motions for summary judgment.

Construing Brown’s Amended Complaint in the light most favorable to him, it

is reasonable to assume the institutional defendants would be aware of the Rasho

litigation saga and its impact on the exercise of their duties. Brown need not prove at

this stage of litigation that they were, indeed, aware of Rasho and its effects—he need

only allege facts that create a narrative that “holds together.” Swanson, 614 F.3d at

404. Therefore, the Defendants’ request to strike Paragraphs 53 to 65 and 71 to 76 is

denied.

III. Individual Claims

The Defendants next argue that the following claims should be dismissed: the

Eighth Amendment deliberate indifference claims against Drs. Poteat and Babich

(Count One); the Eighth Amendment failure to protect claims against Wills, Crain,

and Dr. Poteat (Count Two); the state law institutional negligence claim against

Wexford (Count Four); the state law medical malpractice claims against Drs. Reister,

Poteat, and Babich (Count Five); and the state law medical malpractice respondeat

superior/vicarious liability claim against Wexford (Count Six) (See Docs. 120, 121,

126).

A. Count One – Eighth Amendment Deliberate Indifference

“A prison official violates the Eighth Amendment’s bar against cruel and

unusual punishment if she displays ‘deliberate indifference to serious medical needs

of prisoners.’” Williams v. Erickson, 962 F. Supp. 2d 1038, 1041 (N.D. Ill. 2013) (citing

Estelle v. Gamble, 429 U.S. 97, 104 (1976). Such claims have “both an objective and a

subjective element: (1) the harm that befell the prisoner must be objectively,

sufficiently serious and a substantial risk to his or her health or safety, and (2) the

individual defendants were deliberately indifferent to the substantial risk to the

prisoner's health and safety.” Collins v. Seeman, 462 F.3d 757, 760 (7th Cir. 2006)

(citing Matos ex. rel. Matos v. O’Sullivan, 335 F.3d 553, 556 (7th Cir. 2003)). “A

medical need is considered objectively serious if it has been diagnosed by a physician

as requiring treatment or if it is ‘so obvious that even a lay person would recognize

the necessity for a doctor’s attention.’” Williams, 962 F. Supp. 2d at 1041 (citing

Greeno v. Daley, 414 F.3d 645, 653 (7th Cir. 2005); Farmer v. Brennan, 511 U.S. 825,

834 811 (1994)).

Drs. Poteat and Babich argue that Brown insufficiently pleads that they were

deliberately indifferent to his mental health requirements. (See Doc. 126, pp. 4–7).

Poteat argues that she only saw Brown for his initial evaluative appointment on July

20, 2021 (see id., p. 6) and Babich argues that “Plaintiff makes no direct allegations

regarding treatment provided by Dr. Babich” and that Brown alleges instead “that

Dr. Babich maintained an ‘inadequate mental health care system at Menard.’” (Id.

(citing Doc. 120, ¶ 53)). Brown argues in opposition that he has adequately stated

claims for deliberate indifference against both Poteat and Babich because he sent

Poteat grievances and because Babich should have been on notice of issues with

inmate mental health care due to the Rasho litigation discussed supra. (See Doc. 130,

pp. 10–12).

Notably, Poteat and Babich discuss the standard for deliberate indifference

claims in detail. (See Doc. 126, p. 5). However, they predominately cite to cases

decided at summary judgment, not at the Rule 12(b)(6) motion to dismiss stage. (See

id. (citing Rosario v. Brawn, 670 F.3d 816, 821–22 (7th Cir. 2012) (appeal of district

court’s grant of summary judgment); Garvin v. Armstrong, 236 F.3d 896 (7th Cir.

2001) (same); Walker v. Peters, 233 F.3d 494 (7th Cir. 2000) (same); Johnson v.

Doughty, 433 F.3d 1001 (7th Cir. 2006) (same); Snipes v. DeTella, 95 F.3d 586 (7th

Cir. 1996); Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011) (appeal of district court’s

grant of judgment as a matter of law); Thomas v. Dart, 39 F.4th 835 (7th Cir. 2022)

(appeal of denial of motion to amend complaint)). Brown is not required to fully brief

and argue his case at this stage—he is only required to adequately plead his claims.

It is undisputed that Poteat was the psychiatrist overseeing Brown’s mental health

treatment, even if she only saw him in person for his initial intake. Additionally, it

would appear that Babich was responsible for the mental health treatment program

as the Southern District Regional Director for Wexford. (See Doc. 130, pp. 9–12).

Brown’s significant history of self-harm and suicide attempts (discussed supra)

clearly show a serious medical need and, taking inferences in Brown’s favor, is it

plausible to assume that Poteat and Babich were aware of that need based on Brown’s

mental health history. Poteat and Babich’s arguments are more appropriate at the

summary judgment stage and do not move the dial here. Brown has sufficiently

stated a claim for deliberate indifference against Poteat and Babich. These claims

shall move forward into discovery.

B. Count Two – Eighth Amendment Failure to Protect

“A failure to provide protection constitutes an Eighth Amendment violation

only if deliberate indifference by prison officials to a prisoner's welfare effectively

condones the harm by allowing it to happen.” Eagan v. Dempsey, 987 F.3d 667, 693

(7th Cir. 2021) (citing Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010)). The

plaintiff “must demonstrate that the prison officials knew of and disregarded a

serious risk to his health or safety.” Id. at 694. “[T]he official must both be aware of

facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he must also draw the inference.” Id. (quoting Farmer, 511 U.S. at 837).

Additionally, “an official’s failure to alleviate a significant risk that he should have

perceived but did not, while no cause for commendation, cannot under our cases be

condemned as the infliction of punishment.” Id. (quoting Farmer at 838).

The Defendants argue that the Eighth Amendment failure to protect claims

against Wills and Crain (Doc. 121) and against Dr. Poteat (Doc. 126) should be

dismissed. Wills and Crain dispute that they had any knowledge of Brown’s risk of

self-harm via Brown’s grievances. (See Doc. 121, pp. 5–7). Poteat claims that same.

(Doc. 126, pp. 7–8). Brown insists that Wills, Crain, and Poteat were aware of the

imminent risk of self-harm via these same emergency grievances. (See Doc. 129, pp.

9–11; Doc. 130, pp. 10–11). Additionally, Brown’s Amended Complaint details his long

history of self-harm and suicide attempts. (See Doc. 120).

As discussed supra, Brown need not prove his allegations at this stage. See

Lindsey v. Hoem, 799 F. App’x 410, 413 (7th Cir. 2020) (citing Sanders v. Melvin, 873

F.3d 957, 960 (7th Cir. 2017)). As the Seventh Circuit has cautioned, “[e]verything a

litigant says in support of a claim is self-serving, whether the statement comes in a

complaint, an affidavit, a deposition, or a trial. Yet self-serving statements are not

necessarily false; they may be put to the test before being accepted, but they cannot

be ignored.” Sanders, 873 F.3d at 960. Reading the Amended Complaint in this light

most favorable to Brown, this Court holds that he has plausibly stated a claim for

failure to protect against Defendants Wills, Crain, and Poteat. Should Brown’s claims

ultimately prove to be fruitless, they will be dismissed at summary judgment.

C. Count Four – Illinois State Law Institutional Negligence

“Illinois law recognizes an administrative and managerial duty on the part of

a hospital to review and supervise the treatment of its patients.” Williams, 962 F.

Supp. 2d at 1044 (citing Advincula v. United Blood Servs., 678 N.E.2d 1009, 1023 (Ill.

1996)). Wexford asserts that:

To sustain an action for medical negligence, plaintiff must show: “(1) the

standard of care in the medical community by which the physician’s

treatment was measured; (2) that the physician deviated from the

standard of care; and (3) that a resulting injury was proximately caused

by the deviation from the standard of care.”

(Doc. 126, pp. 8–9 (quoting Neade v. Portes, 739 N.E.2d 496, 502 (Ill. 2000)). They

argue that Brown “has failed to make any of the aforementioned allegations against

Wexford” and that his “allegations appear to be that of a traditional negligence claim.”

(Id., p. 9). Brown argues that he has “far exceeded his pleading requirements to state

a claim for institutional negligence.” (Doc. 130, p. 14 (citing Williams v. Erickson, 962

F. Supp. 2d 1038, 1044 (N.D. Ill. 2013)).

In Williams, The Seventh Circuit ruled that the plaintiff “allege[d] that

Wexford did an unreasonable job of selecting, staffing and supervising its employees.

This is sufficient to state a claim under Illinois law.” 962 F.Supp.2d at 1044. The same

is true here—Brown has sufficiently alleged that “Wexford, because of its close

involvement in the Rasho litigation, knew that its mental health programs were

dangerously understaffed, that patients on psychotropic medication were

inadequately monitored, and that the mental health needs of patients on crisis watch

were not addressed.” (Doc. 130, p. 14 (citing Doc. 120, ¶ 58)). He has sufficiently stated

a claim against Wexford—this claim also survives Wexford’s attempt to dismiss it.

D. Counts Five and Six – Illinois State Law Medical Malpractice

In accordance with Illinois law, a plaintiff must “show that the physicians’

negligent failure to comply with the standard of care proximately caused [the

plaintiff’s] injury.” Miranda v. County of Lake, 900 F.3d 335, 348 (7th Cir. 2018)

(citing Sullivan v. Edward Hosp., 806 N.E.2d 645 (Ill. 2004)). “In Illinois, proximate

cause ‘must be established by expert testimony to a reasonable degree of medical

certainty.’” Id. (citing Morisch v. United States, 653 F.3d 522, 531 (7th Cir. 2011)

(citation omitted)).

First, Plaintiff Brown has agreed to voluntarily dismiss the state law medical

malpractice claim against Defendant Reister. (See Doc. 129, p. 12). For this reason,

this claim shall be dismissed without prejudice without any additional discussion.

Drs. Poteat and Babich argue that Brown’s medical malpractice claims against

them are barred by the two-year statute of limitations and the four-year statute of

repose imposed by Illinois law. (See Doc. 126, p. 10 (citing 735 ILL. COMP. STAT. 5/13-

212; Augutis v. United States, 732 F.3d 749, 752–53 (7th Cir. 2013)). They argue that

Brown “brings the medical malpractice claim against Dr. Babich or Dr. Poteat for the

first time in his Amended Complaint on March 24, 2025” and that these claims cannot

relate back to the filing date of the original Complaint (January 12, 2023). (Id.).

Curiously, Brown does not address the claims against Dr. Poteat in his Response, nor

does he address the arguments that his claims are barred by the applicable statutes

of limitation and repose. (See Doc. 140, pp. 14–15). Instead, he argues that Babich

owed a duty of care to him, even though he was the Southern District Regional

Director for Wexford and not Brown’s treating physician. (See id., p. 15).

Regarding the Defendants’ statute of limitations argument, this Court is not

convinced. Augutis involved an initial complaint filed more than five years after the

alleged malpractice occurred. See 732 F.3d at 754. Moreover, the Seventh Circuit

states that an “action” is a new case filed by an initial complaint. See id. (“Augutis

briefly suggests that his administrative claim was an ‘action’ within the meaning of

section 13–212, but that is not what the word means in this context. An action must

be filed in a court, not with a federal agency. See 735 ILCS 5/2–201(a) (“Every action,

unless otherwise expressly provided by statute, shall be commenced by the filing of a

complaint.”)). Brown filed his initial Complaint on January 12, 2023, less than two

years after the alleged injury occurred in October and November 2021. (See Doc. 1;

Doc, 126, p. 10). Moreover, if the date of injury is October or November 2021, Brown

had until October 2025 at the earliest to file medical malpractice claims against

Poteat and Babich to avoid the four-year statute of repose. The Amended Complaint

was filed on March 24, 2025, far below this limit. (See Doc. 120). Additionally, while

Poteat and Babich argue (without citing any caselaw) that Brown’s medical

malpractice claims “cannot relate back to the date he filed his original complaint,”

(Doc. 126, p. 10), Federal Rule 15(c) expressly states that:

An amendment to a pleading relates back to the date of the original

pleading when: (A) the law that provides the applicable statute of

limitations allows relation back; [or] (B) the amendment asserts a claim

or defense that arose out of the conduct, transaction, or occurrence set

out—or attempted to be set out—in the original pleading . . . .

Id. (emphasis added). Clearly, the same conduct (Poteat and Babich’s conduct with

regard to Brown’s mental health crisis following the six days during which his

medication was not provided) is at issue here.

Wexford also argues that it cannot be held liable under § 1983 and, thus, that

Brown’s medical malpractice claim against them must be dismissed. (See Doc. 126,

pp. 11–12 (citing Perez v. Fenoglio, 792 F.3d 768, 780 (7th Cir. 2015); Shields v. Ill.

Dep’t of Corr., 746 F.3d 782, 789 (7th Cir. 2014); Monell v. Dep’t of Soc. Servs. of N.Y.,

436 U.S. 658 (1978); Armbruster v. Wexford Health Sources, Inc., 16-cv-544-MRJ,

2017 WL 2619032, at *3 (S.D. Ill. June 16, 2017))). They argue that this claim should

be pursued as a Monell claim seeking liability due to Wexford’s “policies and

practices,” as Brown has already pleaded in Count Three. (Id., p. 12). Brown argues

in opposition that Wexford “did not read Armbruster carefully. There, the court

recognized that ‘Plaintiff may pursue respondeat superior against Defendant Wexford

as a theory of medical malpractice for the acts of [its employee].’” (Doc. 130, p. 16

(citing Ambruster, 2017 WL 2619032, at *8)). Brown states (in a footnote) that he

“recognizes that the court in Armbruster dismissed the respondeat superior claim

against Wexford because ‘respondeat superior, in and of itself, is not a separate claim,

but merely a theory of recovery.’” (Id., p. 16 n.2 (quoting Armbruster at *3)). “But

there, unlike here, the plaintiff had raised ‘a distinct claim of respondeat superior

liability apart from [his] malpractice claim.” (Id. (quoting Armbruster at *3)). Brown,

in the alternative, seeks leaves to add Wexford to Count Five.

However, there is a separate issue to address—one which neither party argued

nor briefed. “Under Illinois law, a plaintiff seeking damages for ‘medical, hospital, or

other healing art malpractice’ must attach to his complaint either (1) an affidavit

confirming that he has reviewed the facts of the case with a health care professional

and that the professional believes that there is a ‘reasonable and meritorious cause

for the filing of such action,’ as well as a copy of the professional’s written report on

the case, or (2) an affidavit stating an acceptable reason why such an opinion and

report could not be obtained.” Hahn v. Walsh, 762 F.3d 617, 628 (7th Cir. 2014) (citing

735 ILL. COMP. STAT. 5/2–622(a)). The Seventh Circuit confirmed that this same

requirement applies to state law medical malpractice claims brought in federal court

in accordance with Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938). See Hahn, 762 F.3d

at 629 (citing the same). Hahn made clear, however, that plaintiffs should be granted

leave to amend to add such an affidavit. See 762 F.3d at 633–34 (“First, our cases and

Illinois cases suggest that when a claim is dismissed for failure to include a section

2–622 affidavit and report, the dismissal should be without prejudice. The Appellate

Court of Illinois has held expressly that when a plaintiff raises a claim that implicates

section 2–622 but fails to include an affidavit and report, the plaintiff should have

the opportunity to amend her complaint before it is dismissed with prejudice.”).

Therefore, Counts Five and Six of Brown’s Amended Complaint must be

dismissed without prejudice. While this Court will provide Brown with leave to

amend, this Court cautions the parties that additional delays in this litigation will

not be tolerated. This case was filed in January 2023—after two-and-a-half years of

litigation, the parties should make every effort to move this case toward a final

resolution as expeditiously as is possible.

CONCLUSION

For the reasons set forth above, the Motion to Dismiss filed by Defendants

Brand, Cooper, Crain, Lawrence, Morris, Reister, and Wills (Doc. 121) is GRANTED

in part and DENIED in part. Additionally, the Motion to Dismiss filed by

Defendants Babich, Poteat, and Wexford (Doc. 126) is GRANTED in part and

DENIED in part. Counts Five and Six of Plaintiff Allen Brown, Jr.’s Amended

Complaint are DISMISSED without prejudice. Plaintiff Brown shall file a second

amended complaint no later than June 23, 2025.

IT IS SO ORDERED.

DATED: June 9, 2025

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

U.S. District Judge