Almost seven years into this lawsuit, after discovery had been closed and with a summary judgment deadline looming, the defendants in this case, Dr. Partha Ghosh and Wexford Health Sources Inc., raised the affirmative defense of res judicata for the first time. This was an unexpected motion to dismiss an amended complaint. When the plaintiff, Alnoraindus Burton, responded that the defense had been waived or forfeited, while the defendants argued that the 7th Circuit Court of Appeals opinion in Massey v. Helman, 196 F.3d 727 (7th Cir. 1999), required a district court to allow any and all new affirmative defenses whenever a plaintiff amends a complaint in any way. The district court judge in this case agreed with that decision and granted the defendants’ motion to dismiss.
In this appeal, the 7th Circuit reversed and remanded the case. The court stated that the standard for amending pleadings under Federal Rules of Civil Procedure 8(c) and 15 continues to govern the raising of new affirmative defenses even when an amended complaint is filed.
This appeals panel stated that Massey held that a defendant is entitled to add a new affirmative defense prompted by an amended complaint that changes the scope of the case in a relevant way. Massey does not, however, require a district court to allow any and all new defenses and response to any amendment to a complaint, without regard for the substance of the amendment and its relationship to the new defenses. Rather, a district court must exercise its sound discretion under Rules 8 and 15 in deciding whether to allow the late addition of a new affirmative defense.
In this case, the late amendment to the complaint was minor and did not authorize a new res judicata defense that had been waived or forfeited years earlier.
Because Burton’s claim was dismissed under Federal Rule of Civil Procedure 12(b)(6), the appeals panel accepted as true all well-pleaded allegations in the amended complaint, drawing all permissible inferences in his favor. Fortress Grand Corp. v. Warner Bros. Entertainment Inc., 763 F.3d 696, 700 (7th Cir. 2014).
The plaintiff Alnoraindus Burton injured his right knee in Feb. 20, 2009 while imprisoned in the Illinois Department of Corrections (IDOC). Over the next year, he repeatedly sought medical care for his injury. Burton filed formal requests, wrote letters, and even went on a hunger strike to get the medical attention he claimed was needed and medically required.
Burton’s injured knee was not treated until March 2010, when he was finally seen by defendant Dr. Partha Ghosh, who was the Medical Director at Illinois’ Stateville Correctional Center and acted as Burton’s treating physician. Dr. Ghosh was employed by Wexford Health Sources Inc., a corporation that contracted with IDOC to provide health care to its inmates. An MRI taken on May 27, 2010 revealed that Burton had suffered a torn lateral meniscus and other damage.
After reviewing the MRI, Dr. Ghosh recommended a consultation with an orthopedic specialist outside of the prison. Wexford approved the outpatient visit on July 22, and Burton visited the orthopedist on Oct. 4, more than a year and a half after his initial injury. The surgery was finally performed two weeks later, and Burton returned to the prison that day.
Burton’s discharge orders said that he should receive physical therapy and pain medication. He alleged in his complaint that he received neither. These needs were reiterated a week later when Burton returned to the surgeon for a follow‐up appointment. But Burton still was not given pain medication, and he was denied physical therapy despite repeated letters to Dr. Ghosh informing him of these needs and a formal grievance filed in late October.
Burton was finally referred to a physical therapist in December 2010 and began treatment in March 2011. Because of these delays, he claimed that he suffered significant and permanent damage to his knee, and that he experienced discomfort when walking and stiffness when sitting or standing.
In February 2011, Burton filed a pro se complaint against many of Wexford healthcare providers across different facilities, alleging deliberate indifference to serious medical needs and retaliation in violation of the Constitution’s Eighth Amendment, which prohibits cruel and unusual punishment. The case was assigned to district court Judge Gettleman, who dismissed the complaint because it misjoined unrelated claims and defendants. Burton filed an amended complaint, this time naming only Dr. Ghosh as a defendant. The court then recruited counsel for Burton. Dr. Ghosh was never served with a summons for either of these two complaints.
Burton’s recruited counsel moved for leave to file a new complaint, which the court granted. But the lawyer did not actually file a new complaint as expected, so the second pro se complaint was dismissed without prejudice on June 5, 2012, pursuant to Federal Rules of Civil Procedure 41(a)(2), with permission to reinstate by Aug. 6. Complicating matters in ways that have surfaced here, years later, the dismissal order added that the dismissal would become a final dismissal with prejudice if a motion to reinstate were not filed in time.
Burton and his lawyer did not file a motion to reinstate by the deadline, nor did they ever file an amended complaint in the original case. Instead, the same recruited lawyer for Burton filed a new complaint on Oct. 19, 2012. The new complaint was docketed as an entirely new case and was not assigned to Judge Gettleman, apparently because the lawyer stated incorrectly on the civil cover sheet that the case was “not a refiling of a previously dismissed action.” The case was randomly assigned to a new judge and later reassigned to yet another judge. The new complaint also added Wexford as a defendant. Defendants filed their answers in May 2013. Over the next four years, discovery proceeded.
In January 2018, after discovery was completed, and after Burton’s original recruited lawyer had withdrawn and newly recruited lawyers had taken the case, Burton was granted leave to file an amended complaint. The amendments were minor, clarifying some of Burton’s original factual allegations and emphasizing the delays in his treatment. The district court judge issued a brief order instructing defendants to “answer or otherwise plead to Plaintiff’s amended complaint.”
Instead of amending their answer or proceeding with the briefing schedule for summary judgment, defendants filed a motion to dismiss under Federal Rules of Civil Procedure 12(b)(6), raising the new affirmative defense of res judicata, also known as claim preclusion. Defendants argued that the dismissal of Burton’s first suit with prejudice in 2012 precluded the second, and they asserted that they had become aware of Burton’s earlier dismissed case only several days earlier. Defendants further argued (incorrectly) that even if only the claims against Dr. Ghosh should be dismissed on res judicata, the claims against Wexford would have to be dismissed because Burton could not support a deliberate indifference claim against a “municipal” defendant without proving an underlying violation by its employee. In response, Burton argued that defendants had waived or forfeited the new defense. Defendants replied that the amended complaint opened the door to new affirmative defenses, regardless of whether they had previously been waived or forfeited.
The district court granted the motion to dismiss this second suit. It concluded that the conditions for res judicata were met. In addition, the court rejected Burton’s waiver and forfeiture arguments, concluding that by filing an amended complaint, he had opened the door for the defendants to assert new affirmative defenses.
The appeals court stated that when an affirmative defense is not raised in accordance with Rule 8(c), an affirmative defense is waived when it has been knowingly and intelligently relinquished and forfeited when the defendant has failed to preserve the defense by pleading it. Reed v. Columbia St. Mary’s Hospital, 915 F.3d 473, 482 (7th Cir. 2019).
Beyond any factual dispute, defendants’ affirmative defense was untimely and forfeited. Defendants were never served with the complaint and summons in the first case. But the key information at issue—the existence of the earlier lawsuit—was a matter of public record. Most important, defendants were told about the previous case at several points during this second case. Burton referred to the earlier complaint during his deposition testimony in 2015, three years before defendants raised their defense. He explained that he had filed an earlier complaint against another doctor at an IDOC facility and that there was “one big complaint” including that doctor, Dr. Ghosh, and others. Defense counsel responded that “the only complaint I have right now naming Dr. Ghosh … names Dr. Ghosh and Wexford Health Sources, the employer,” and moved on.
The 7th Circuit panel added that Burton was further prejudiced by defendants’ improper raising of res judicata in a late motion to dismiss. The events here show why presenting affirmative defenses in a motion to dismiss can be so troublesome. It allows a defendant to ambush a plaintiff, distorting the process contemplated by the Rules and impairing plaintiff’s ability to confront untimely defenses. Dr. Ghosh and Wexford filed their Rule 12(b)(6) motion after discovery had concluded and with a summary judgment deadline looming. The procedural errors created by defendants’ improper motion to dismiss unfairly prejudiced Burton’s ability both to contest the merits of the res judicata defense and to encourage the district court to exercise its discretion to forbid amendment of the answer. This is the kind of procedural prejudice that led us (Seventh Circuit Court of Appeals) to reverse in Venters, 123 F.3d at 968.
In summary, defendants’ untimely res judicata defense prejudiced Mr. Burton both substantively and procedurally, so it would be an abuse of discretion to allow them to raise the defense on remand. The district court gave an additional reason for dismissing the claim against Wexford. Defendants argued before the district court that if Dr. Ghosh were dismissed, Burton would be unable to prove an underlying constitutional violation, citing Monell v. Dept. of Social Services, 436 U.S. 658 (1978). Burton failed to assert any defense to the argument, so Wexford was dismissed on this ground as well.
The claim against Dr. Ghosh is going forward, but defendants’ theory was also wrong as a matter of law. Individual liability is not a prerequisite for a Monell claim. E.g., Glisson v. Indiana Department of Corrections, 849 F.3d 372, 378 (7th Cir. 2017) (en banc) (reversing summary judgment for the corporation on the Monell claim for policies deliberately indifferent to serious health needs of prisoners with complex, multiple illnesses, despite absence of evidence that any one employee‐physician was deliberately indifferent). Indeed, that is a central point of Monell: the municipal entity is liable because of its own actions, not merely because of the wrongful conduct of one of its employees.
Accordingly, for these and other reasons, the 7th Circuit Court of Appeals reversed and remanded this case for further proceedings consistent with the opinion.
Alnoraindus Burton v. Partha Ghosh and Wexford Health Sources, Inc., No. 19-1360 (U.S. Court of Appeals for the 7th Circuit; June 8, 2020).
Kreisman Law Offices has been handling medical malpractice lawsuits, wrongful death cases, orthopedic negligence lawsuits, surgery negligence cases and birth injury lawsuits for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Naperville, New Lenox, Lemont, Lansing, Long Grove, Orland Park, Calumet City, Glenview, Wilmette, Winnetka, Glencoe, Zion, Waukegan, Vernon Hills, Lincolnshire, Lincolnwood, Chicago (Logan Square, East Side, Hegewisch, South Shore, Jefferson Park, Austin, Mount Greenwood, North Lawndale), Libertyville, Wheeling, Blue Island, Justice, Mt. Prospect and Country Club Hills, Ill.
Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.
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