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 is a Motion for Reconsideration filed by Plaintiff Allen Brown,

Jr. (Doc. 138). In his Motion, Brown argues that this Court erred in dismissing Counts

V and VI of his Amended Complaint against Defendants Thena Poteat, Glen Babich,

and Wexford Health Sources, Inc. (See id.). Brown argues that the Seventh Circuit’s

holding in Young v. United States, 942 F.3d 349, 351 (7th Cir. 2019) modifies the

holding in Hahn v. Walsh, 762 F.3d 617 (7th Cir. 2014) stating that 735 ILL. COMP.

STAT. 5/2-622 requires a plaintiff bringing a malpractice claim against a health

provider to submit an affidavit and written report authored by a physician confirming

the merit of the suit. (See Doc. 137, pp. 17–18). Brown specifically points to Judge

Easterbrook’s opinion in Young holding that “[b]ecause timing was not contested in

Hahn—the debate concerned whether the affidavit and report were required at all—

our decision did not produce a holding on that topic” and that “a complaint in federal

court cannot properly be dismissed because it lacks an affidavit and report under §

5/2-622.” 942 F.3d at 351. Brown thus insists that he is not required to submit the

affidavit and report at the time of filing of his Amended Complaint in line with Young.

(See Doc. 138, pp. 1–2 (quoting Young at 351)).

However, Brown does not discuss the key difference between his suit and that

at issue in Young: the latter was a pro se suit filed by a non-attorney prisoner. See

942 F.3d at 350, 351. Judge Easterbrook noted that “[a] prisoner may have

insuperable difficulty obtaining a favorable physician’s report before filing a

complaint, so if a complaint not accompanied by a § 5/2-622 affidavit is defective,

many a prisoner will be unable to litigate a malpractice claim.” Id. at 351. The holding

in Young thus allowed flexibility in the timeline during which the required affidavit

and written report should be filed. See id. (“But if a prisoner or other pro se plaintiff

has until the summary judgment stage to comply with the state law, information

obtained in discovery may allow a physician to evaluate the medical records and

decide whether there is reasonable cause for liability.”). As discussed at length in this

Court’s Order (see Doc. 137), Brown is now represented by counsel and may no longer

employ the deferential standards afforded to pro se litigants. See, e.g., Erickson v.

Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))

(“A document filed pro se is ‘to be liberally construed,’ and ‘a pro se complaint,

however inartfully pleaded, must be held to less stringent standards than formal

pleadings drafted by lawyers.”); see also Buechel v. United States, 746 F.3d 753, 758

(7th Cir. 2014).

Additionally, the claims at issue in Young were dismissed with prejudice, as

the United States’s motion was styled as one to dismiss or, in the alternative, for

summary judgment. See Young v. United States, No. 17-CV-946-JPG-RJD, 2018 WL

4217068 (S.D. Ill. Sept. 5, 2018), aff’d, 942 F.3d 349 (7th Cir. 2019). Judge

Easterbrook noted that “Illinois wants insubstantial medical-malpractice suits

resolved swiftly” and that this goal may be accomplished via a summary judgment

motion. Young, 942 F.3d at 351 (citing FED. R. CIV. P. 56(b)). It is thus essential to

keep this procedural posture in mind when interpreting Young’s holding that “that a

complaint in federal court cannot properly be dismissed because it lacks an affidavit

and report under § 5/2-622.” 942 F.3d at 351; see also Nartey v. Franciscan Health

Hosp., 2 F.4th 1020, 1025 (7th Cir. 2021) (“We have instructed district courts not to

dismiss a complaint at the pleading stage for failing to attach a 5/2-622 affidavit.”).

Thus, the Seventh Circuit forbids the final adjudication of a medical malpractice

claim at the pleading stage for want of the affidavit and written report required by

Illinois law. This Court did not dismiss Counts V and VI with prejudice—Brown was

provided with the opportunity to submit a Second Amended Complaint. (See Doc. 37).

Regardless, the voluntary dismissal of the claims against Defendant Reister

(see Doc. 137, p. 18) necessitates the amendment of the operative pleading in this

case. Additionally, based on the prolonged tenure of this case (and the associated

delay in discovery due to the adjudication of the Defendants’ Motions to Dismiss), this

Court prefers to move this case forward rather than delaying discovery for another

35 days so that Brown can provide the required documentation at this stage.

Therefore, Brown’s Motion for Reconsideration (Doc. 138) is GRANTED to the extent

that Brown seeks to delay the production of the affidavit and written report required

by § 5/2-622. Brown shall refile his medical malpractice claims against Defendants

Poteat, Babich, and Wexford in his Second Amended Complaint no later than June

23, 2025 with this Court’s stern warning that failure to provide the required affidavit

and written report via discovery will result in the dismissal of his medical malpractice

claims at summary judgment. See, e.g., Annamalai v. United States, No. 22-CV-

01541-JPG, 2024 WL 231906, at *3 (S.D. Ill. Jan. 22, 2024) (stating the same). The

parties are further cautioned that this Court will not permit modifications to the

operative Scheduling Order (Doc. 113) absent unforeseen circumstances.

IT IS SO ORDERED.

DATED: June 17, 2025

s/ Stephen P. McGlynn

STEPHEN P. McGLYNN

U.S. District Judge