Burton v. Partha Ghosh & Wexford Health Sources, Inc.
| Decision Date | 08 June 2020 |
| Docket Number | No. 19-1360,19-1360 |
| Parties | Alnoraindus BURTON, Plaintiff-Appellant, v. Partha GHOSH and Wexford Health Sources, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Howard Michael Kaplan, Brandon Stone, David J. Zott, Attorneys, Kirkland & Ellis LLP, Chicago, IL, for Plaintiff-Appellant.
Daniel John Hoelting, Julie Ann Teuscher, Attorneys, Cassiday Schade LLP, Chicago, IL, for Defendants-Appellees.
Before Wood, Chief Judge, and Hamilton and Scudder, Circuit Judges.
Almost seven years into this lawsuit, after discovery had closed and with a summary judgment deadline looming, defendants raised the affirmative defense of res judicata for the first time, in an unexpected motion to dismiss an amended complaint. When plaintiff responded that the defense had been waived or forfeited, defendants argued that our opinion in Massey v. Helman , 196 F.3d 727 (7th Cir. 1999), requires a district court to allow any and all new affirmative defenses whenever a plaintiff amends a complaint in any way. The district court agreed and granted defendants’ motion to dismiss.
We reverse and remand. 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. 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 in 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), we accept as true all well-pleaded allegations in the amended complaint, drawing all permissible inferences in his favor. Fortres Grand Corp. v. Warner Bros. Entertainment Inc. , 763 F.3d 696, 700 (7th Cir. 2014). We may also take judicial notice of the contents of filings in Burton's first federal case. Daniel v. Cook County , 833 F.3d 728, 742 (7th Cir. 2016).
Plaintiff Alnoraindus Burton injured his right knee in February 2009 while incarcerated in the Illinois Department of Corrections (IDOC). Over the next year, he repeatedly sought medical attention for this injury. Burton filed formal requests, wrote letters, and even went on a hunger strike to get medical attention.
Burton's knee was not treated until March 2010, when he was finally seen by defendant Dr. Partha Ghosh, who was the Medical Director at the 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 October 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 alleges 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 physical therapy in December 2010 and began treatment in March 2011. Because of these delays, Burton claims, he has suffered significant and permanent damage to his knee, experiencing discomfort when walking and stiffness when sitting or standing.
In February 2011, Burton filed a pro se complaint against many Wexford health-care providers across different facilities, alleging deliberate indifference to serious medical needs and retaliation in violation of the Eighth Amendment. The case was assigned to 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, though.
Instead, 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 Rule of Civil Procedure 41(a)(2), with permission to reinstate by August 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 October 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 Judge Lefkow and later reassigned to Judge Wood. 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 complete, 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 court 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 Rule 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. First, it concluded that the conditions for res judicata were met. Second, 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 court did not determine whether the res judicata defense had been waived or forfeited earlier, whether amendment of the answer was appropriate under Rule 15, or whether there was any relationship between the amendment to the complaint and the new defense. Instead, the district court believed that language in our opinion in Massey v. Helman , 196 F.3d 727 (7th Cir. 1999), required it to allow the new defense and that it had no discretion to do otherwise. Finally, the court concluded that Burton had waived any counter to defendants’ incorrect argument that if claims against Dr. Ghosh were dismissed, then the claims against Wexford ought to be dismissed as well because they depend on an underlying constitutional violation by Dr. Ghosh.
Burton moved under Rule 59(e) for reconsideration. He repeated his waiver argument. He also challenged the district court's reading of Massey and submitted evidence that defendants had in fact known of Burton's first suit before they answered the complaint in the second. The district court denied the motion, and Burton has appealed.
We review de novo the district court's decision to dismiss Burton's claim on grounds of res judicata. Czarniecki v. City of Chicago , 633 F.3d 545, 548 (7th Cir. 2011), citing Tartt v. Northwest Community Hospital , 453 F.3d 817, 822 (7th Cir. 2006). We review for abuse of discretion a district court's discretionary decision to allow late assertion of an affirmative defense, Reed v. Columbia St. Mary's Hospital , 915 F.3d 473, 482 (7th Cir. 2019), but review de novo the underlying legal issues, United States v. Knope , 655 F.3d 647, 660 (7th Cir. 2011). On appeal, Burton does not argue that the elements of res judicata are not met. Instead, he contends that defendants have waived or forfeited their res judicata defense and that the district court's decision to allow the late defense was based on a mistake...
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