Baker v. Hertz et al

Filing 116

MEMORANDUM AND ORDER, The Court ADOPTS the Report as MODIFIED to correct the lone error (Doc. 111 ), STRIKES Hertz's reply brief (Doc. 91 ),GRANTS in part and DENIES in part Hertz's motion for summary judgment (Doc. 74 ). The motion is G RANTED to the extent it seeks summary judgment against Hertz on Count 4. The motion is DENIED in all other respects. The Court DISMISSES Count 4 against Hertz without prejudice and DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case. Signed by Judge J. Phil Gilbert on 1/11/2017. (jdh)

UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
JEFFREY BAKER,
Plaintiff,
v.

Case No. 15-cv-600-JPG-DGW

ROBERT HERTZ, JOHN LAKIN, GARY BOST,
DONALD BUNT, ROBERT HOLLENBACH,
RANDY YOUNG, LT. HILL, MIRAN
THOMPSON, SGT. DOVER, JODIE COLLMAN,
PAUL SARHAGE, STEVE RIDINGS, DONALD
McNAUGHTON, KENT GRIFFITH, TIM
WALKER, CRAIG RICHERT, MIKE TASSOME,
MIKE HARE, OFCR. MARK SPURGEON, BLAKE
SELLERS, MARK RYAN, MATT MILLER,
ROBERT BLANKENSHIP, MARTHA MAJOR,
ALICIA RUSHING, and VALERIE BASSETS,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the Court on the Report and Recommendation (“Report”) (Doc.
111) of Magistrate Judge Donald G. Wilkerson recommending that the Court strike the reply brief
(Doc. 91) and grant in part and deny in part the motion for summary judgment on Counts 4 and 9
filed by defendant Robert Hertz (Doc. 74).
The Court may accept, reject or modify, in whole or in part, the findings or
recommendations of the magistrate judge in a report and recommendation. Fed. R. Civ. P.
72(b)(3). The Court must review de novo the portions of the report to which objections are made.
Id. “If no objection or only partial objection is made, the district court judge reviews those
unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir.
1999).
The Court has received no objection to the Report. The Court has reviewed the entire file

and notes only one minor error. Magistrate Judge Wilkerson stated that Hertz, whom Baker is
suing in Count 4 for injunctive relief in his official capacity as the Sheriff of Madison County, is
really a claim against the municipality of Madison County. In reality, under Illinois law a sheriff
is an independently elected constitutional officer, not an agent of the county in which he was
elected. Ill. Const. art. VII, § 4(c); Moy v. County of Cook, 640 N.E.2d 926, 931 (Ill. 1994).
Nevertheless, Magistrate Judge Wilkerson’s conclusion is correct that Hertz currently lacks the
capacity to provide injunctive relief under Count 4 because he is no longer sheriff. Except for this
minor error, the Report is not clearly erroneous. Accordingly, the Court hereby:


ADOPTS the Report as MODIFIED to correct the lone error (Doc. 111);



STRIKES Hertz’s reply brief (Doc. 91);



GRANTS in part and DENIES in part Hertz’s motion for summary judgment (Doc. 74).
The motion is GRANTED to the extent it seeks summary judgment against Hertz on
Count 4. The motion is DENIED in all other respects;



DISMISSES Count 4 against Hertz without prejudice; and



DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.

IT IS SO ORDERED.
DATED: January 11, 2017
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE

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