Gay v. Ortman et al
| Anthony Gay |
| Jonathan Ortman, C/O Hart and C/O Andrew |
| 3:2018cv50310 |
| September 13, 2018 |
| US District Court for the Northern District of Illinois |
| Iain D Johnston |
| Frederick J Kapala |
| Civil Rights (Prison Condition) |
| 42 U.S.C. ยง 1983 |
| None |
Docket Report
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Filing 7
ORDER: On 9/17/2018, this court dismissed plaintiff's complaint pursuant to 1915(e)(2)(b)(ii)for failure to state a claim upon which relief may be granted. In particular, this court found that plaintiff had not alleged a federal claim but, rather, a state-law medical battery in asserting that Dr. Ortman treated him without his consent when the doctor removed a razor blade from plaintiff's eye. Plaintiff has now filed a motion to alter or amend the judgment contending that he has stated a federal claim because he has alleged a "misuse of force" in violation of the Eighth Amendment. However, in order to state a claim for a violation of the Eighth amendment under 42 U.S.C. 1983, plaintiff would have to allege that Dr. Ortman was a state actor and he has not. See Buchanan-Moore v. Cty. of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) ("To state a claim for relief under 42 U.S.C. 1983, a plaintiff must allege that: (1) he was deprived of a right secured by the Constitution or laws of the United States; and (2) the deprivation was visited upon him by a person or persons acting under color of state law."). In fact, plaintiff has not alleged that any defendant was acting under color of state law or that the Constitution or laws of the United States were violated. Nevertheless, it is plausible that plaintiff will be able to allege these elements at least with respect to the correctional officers. Accordingly, the court grants plaintiff's Rule 59(e) motion #6 and directs the clerk to vacate the judgment of dismissal in order to afford plaintiff 30 days to file an amended complaint that satisfies these elements. Failure to file an amended complaint within 30 days will result in dismissal with prejudice. Signed by the Honorable Frederick J. Kapala on 10/10/2018. Mailed notice (kms)
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| Filing 6 MOTION by Plaintiff Anthony Gay to amend/correct, MOTION by Plaintiff Anthony Gay to alter judgment (pg, ) |
| Filing 5 ENTERED JUDGMENT: Mailed notice(sb, ) (Main Document 5 replaced on 9/18/2018) (sb, ). |
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Filing 4
ORDER: This case is dismissed upon initial review pursuant to 28 U.S.C. 1915(e)(2)(B)(ii) for failure to state a claim upon which relief may be granted. This case is closed and all pending motions are denied as moot. Signed by the Honorable Frederick J. Kapala on 9/17/2018:mailed notice(pg, )
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| ***Civil Case Terminated. (pg, ) |
| Filing 3 APPLICATION by Plaintiff Anthony Gay for leave to proceed in forma pauperis (pg, ) |
| Filing 2 MOTION by Plaintiff Anthony Gay for attorney representation (pg, ) |
| Filing 1 RECEIVED Complaint and 0 copies by Anthony Gay (pg, ) |
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