Winter v. Duncan

Filing 40

ORDER. The Motion to Dismiss (Doc. 36) is GRANTED. IT IS ORDERED that Counts 1 and 2 are DISMISSED for failure to state claims for relief and that Counts 3, 4, and 5 are DISMISSED for lack of jurisdiction. The Clerk is DIRECTED to close this case. Signed by Judge Staci M. Yandle on 6/30/15. (ajr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
LESTER WINTER, JR.,
Plaintiff,
v.
SALVATORE GODINEZ, et al.,
Defendants.

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Case No. 3:14-cv-762-SMY-PMF

MEMORANDUM AND ORDER
YANDLE, District Judge:
Before the Court is defendants’ motion to dismiss (Doc. No. 36). The motion was filed
pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff’s
response to the motion was due by June 1, 2015. When a response was not filed in a timely
manner, the Court directed plaintiff to file his responsive brief by June 22, 2015 (Doc. No. 38).
Plaintiff was notified that failure to file a timely response would be considered as an admission
that the arguments presented in support of the motion had merit. A timely response is not on file.
Plaintiff Lester Winter is proceeding on claims brought pursuant to 42 U.S.C. § 1983. In
Count 1 of his amended complaint, he claims that defendants Duncan, Stevenson, and Williams
inflicted cruel and unusual punishment by failing to release him on his scheduled parole date. In
Count 2, he alleges that defendants Duncan, Stevenson, and Williams deprived him of a liberty
interest without due process in violation of the Fourteenth Amendment by failing to assist in
lining up a housing site. In Counts 3, 4, and 5, plaintiff asserts state law claims for negligence,
false imprisonment, and intentional infliction of emotional distress. Those Counts are brought
against defendants Godinez, Gaetz, Duncan, Stevenson, and Williams (Doc. Nos. 16, 22).
A federal complaint requires only a short and plain statement of the claim showing that
the pleader is entitled to relief. Fed. R. Civ. P. 8(a). In approaching a motion to dismiss, the

allegations are viewed in a light favorable to the plaintiff, accepting well-pleaded facts as true
and drawing all possible inferences in his or her favor. Hecker v. Deere & Co., 556 F.3d 575
(7th Cir. 2009). Specific facts are not necessary; the statement need only give fair notice of what
the claim is and the grounds upon which it rests. Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007). Even so, the factual allegations must be plausible; there must be enough specific
information to raise a right to relief above the speculative level. Id.
Rule 12(b)(1) allows for dismissal of a claim for lack of subject matter jurisdiction. The
burden is on the plaintiff to prove by a preponderance of the evidence, that subject matter
jurisdiction exists. Lee v. City of Chicago, 330 F.3d 456, 468 (7th Cir. 2003).
The motion seeks dismissal of Counts 1 and 2 on the basis that the defendants
implemented policies mandated by state law. Counts 3-5 are challenged on the basis that the
claims are barred by sovereign immunity and should be brought in the Illinois Court of Claims.
On review of the materials on file, the Court is satisfied that relief requested in the
motion is appropriate under the circumstances. The motion (Doc. No. 36) is GRANTED.
IT IS ORDERED that Counts 1 and 2 are DISMISSED for failure to state claims for
relief and that Counts 3, 4, and 5 are DISMISSED for lack of jurisdiction. The Clerk is
DIRECTED to close this case.
IT IS SO ORDERED.
DATED: June 30, 2015
s/ Staci M. Yandle
STACI M. YANDLE
DISTRICT JUDGE

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