Moore v. Ziegler et al
Filing
105
ORDER: The Court GRANTS in part and DENIES in part the 74 Motion for Summary Judgment filed by Defendants Butler, Harris, and Monje. The Court denies the motion as to the claims against Defendant Harris in Counts 3 and 5 and grants the motion as to the claims against Defendant Butler and Defendant Monje in Count 4. Count 4 is DISMISSED without prejudice to refiling in the Illinois Court of Claims. Thus, Defendant Butler and Defendant Monje are DISMISSED without prejudice and the Clerk of Court is DIRECTED to TERMINATE these individuals as parties to this case. In addition, the Court GRANTS the 101 Motion for Summary Judgment filed by Defendant Lang. Count 6 is DISMISSED with prejudice. The Clerk shall TERMINATE Defendant Lang as a party to the case and enter judgment in her favor at the conclusion of the entire action. Magistrate Judge Sison is DIRECTED to recruit counsel to represent Moore at trial. Once counsel is recruited and enters an appearance, the undersigned will set this matter for a status conference to select firm dates for a final pretrial conference and jury trial. Signed by Judge Nancy J. Rosenstengel on 3/26/2019. (bak)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
SHUNG MOORE,
Plaintiff,
v.
RYAN ZIEGLER, JOSEPH
NEWCOMB, AIMEE L. LANG,
RICHARD HARRIS, KIMBERLY
BUTLER, and MICHAEL MONJE,
Defendants.
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Case No. 16-CV-1239-NJR-GCS
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court is a motion for summary judgment filed by Defendants
Kimberly Butler, Richard Harris, and Michael Monje (Doc. 74). Plaintiff Shung Moore
(“Moore”) filed a pro se response in opposition to the motion (Doc. 93). Also pending is a
motion for summary judgment recently filed by Defendant Aimee Lang (Docs. 101-103),
which Moore concedes should be granted (Doc. 104). For the following reasons, the Court
grants in part and denies in part the motion for summary judgment filed by Defendants
Butler, Harris, and Monje and grants the motion filed by Defendant Aimee Lang.
BACKGROUND
Moore, an inmate at Menard Correctional Center, brought this action for
deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. On August 1, 2018,
the undersigned district judge allowed Moore’s first amended complaint to be filed and
to proceed on the following claims:
Page 1 of 19
Count 1-
Defendant Ziegler used excessive force against Moore when
he pulled on the handcuff lead, thus wrenching Moore’s arms
and shoulders downward on July 25, 2014, in violation of the
Eighth Amendment’s prohibition on cruel and unusual
punishment;
Count 2 –
Defendant Newcomb failed to intervene when Defendant
Ziegler used excessive force against Moore on July 25, 2014,
in violation of the Eighth Amendment’s prohibition on cruel
and unusual punishment;
Count 3-
Defendant Harris used excessive force on Moore on July 30,
2014, when Defendant Harris put Moore’s handcuffs on too
tight in violation of the Eighth Amendment’s prohibition on
cruel and unusual punishment;
Count 4-
Defendant Monje and Defendant Butler negligently failed to
preserve evidence when they did not maintain the video tape
surveillance footage of the assault allegedly perpetrated by
Defendant Ziegler and Defendant Newcomb in violation of
Illinois State law;
Count 5-
Defendant Harris retaliated against Moore on August 20,
2014, when he placed handcuffs on him too tight in violation
of the Eighth Amendment’s prohibition on cruel and unusual
punishment; 1 and
Count 6-
Defendant Lang was deliberately indifferent to Moore’s
injuries after the alleged assault when she refused to take
steps to ensure that Moore received medical treatment in
violation of the Eighth Amendment.
(Doc. 76).
Defendants Butler, Harris, and Monje move for summary judgment on Counts 3,
4, 5 arguing the claims against Defendant Harris are barred by the statute of limitations;
the evidence Moore has with respect to Defendant Harris is not sufficient for liability
1
The record reflects that the incident occurred on August 3, 2014, not August 20, 2014.
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under either the Eighth Amendment or the First Amendment; or alternatively, Defendant
Harris is entitled to qualified immunity. Lastly, Defendants argue Moore’s claim for
negligent spoliation against Defendant Monje and Defendant Butler is barred by state
law sovereign immunity and the claim fails on the merits.
RELEVANT FACTS
The following facts are taken from the record and presented in the light most
favorable to Moore, the non-moving party, and all reasonable inferences are drawn in his
favor. See Ricci v. DeStefano, 557 U.S. 557, 586 (2009).
Moore claims Defendant Harris cuffed him tightly because Defendant Harris
works closely with Defendant Ryan Zeigler. Moore previously accused Defendant
Ziegler of handcuffing him too tightly and assaulting him. Further, Moore claims that
Defendant Harris cuffed him tightly in retaliation for filing a grievance against Defendant
Ziegler, for making a complaint against correction staff in general, and for requesting an
Internal Affairs (“IA”) investigation into the officers’ conduct.
On July 27, 2014, Moore filed an emergency grievance regarding an assault by
Defendant Ziegler and Defendant Joseph Newcomb. Moore also sent a letter to
Defendant Butler on July 27, 2014, requesting the review and preservation of any video
tape evidence regarding his assault by Defendant Ziegler and Defendant Newcomb. On
July 29, 2014, Officer Andrew Spiller of IA interviewed Moore regarding his assault by
Defendant Ziegler and Defendant Newcomb.
On July 28, 2014, Defendant Butler emailed Andrew Spiller about Moore: “Claims
he was assaulted by C/O Zieglar on 6 gallery, north 2 on the 25th … [sic] Please interview
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the inmate and review the tapes. Let me know what you find.” (Doc. 74-2, p. 3). On July
29, 2014, Officer Spiller responded to Defendant Butler:
Offender MOORE B12832 was interviewed this morning and the following
information was obtained:
On the 25th July on the 3-11 shift, he was escorted from his cell (N2-6-45) for
insulin. After exiting the cell, he asked C/O Zieglar (escorting officer) if he
could loosen his cuffs. Zieglar stated they were fine and did not loosen the
cuffs. They continued to the infirmary. After he entered the infirmary C/O
Newcomb stated “What’s up, MOORE?” Moore replied “Dealing with this
Jackass.” Referring to C/O Ziegler. MOORE received his insulin shot and was
escorted out of the infirmary. MOORE believes right before they entered the 6
gallery, by the sergeants desk, Zieglar stopped him and stated “I’ll show you
who’s a jackass, nigger.” They then entered the gallery and began walking
towards the cell. C/O Zieglar asked for another C/O to meet him over the
radio. C/O Newcomb showed up and assisted with the escort. When they
arrived at his cell, they pushed him into the cell, but maintained control of his
lead cuff threw the chuckhole. MOORE stated he was then yanked backwards
and his arms were forced out of the chuckhole. MOORE stated the way they
did it, was excessive. MOORE was not sure if Newcomb assisted or if it was
only C/O Zieglar. MOORE stated his cuffs then “popped” off and he fell
towards the front of the cell.
All available camera footage was reviewed:
The back of 6 gallery camera currently does not work, therefore there is no
footage of offender MOORE being placed back in his cell N2-6-45.
Two cameras on the gallery, both point at . . . captured Officer Ziegler
escorting offender MOORE from and back to his cell. During the small
windows of footage, C/O Ziegler does not appear to be showing any
aggression towards offender MOORE. When they walk past the second
camera . . . towards offender Moore’s cell N2-6-45, Officer Newcomb can be
seen walking past the camera approximately 30 seconds later.
(Doc. 74-2, ps. 2-3).
On July 30, 2014, Defendant Harris came to Moore’s cell and told him to “step up
to the damn chuck hole and cuff up,” using an aggressive tone. Defendant Harris placed
handcuffs on Moore causing him “crushing pain” and an immediate throbbing sensation
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in both of his wrists. Thereafter, Defendant Harris told Officer Loucks “thanks” and
Defendant Harris walked off. Officer Loucks then escorted Moore to medical past
Defendant Ziegler who stated in an aggressive tone, “those cuffs ain’t to tight for you, are
they?” Sometime after Moore arrived at medical, Officer Loucks loosened the cuffs at
Moore’s request.
Moore testified that he had deep handcuff impressions on his wrists that looked
like ridges because the handcuffs were clamped to the bone. Moore had been forced to
endure this pain for about fifteen minutes until Officer Loucks eventually loosened the
handcuffs. Even though there was no blood or cuts on Moore’s wrists from this incident,
it was only five days removed from the July 25th incident, when Moore claimed that
Defendant Ziegler and Defendant Newcomb assaulted him by yanking on his handcuffs
in a purposeful and aggressive manner. Moore claimed that, after the July 25th incident,
he experienced chronic numbness and that he could not use his hands. Moore further
testified that he did not receive medical attention until August 11th—at which time he
was found to have scar tissue damage on his wrists.
At the time of the July 30th incident, Defendant Harris was working the shower
detail. As part of that detail, officers are required to cuff and transport inmates in
segregation from their cells to the shower. Defendant Ziegler was also on the shower
detail at the time and typically worked with Defendant Harris on that detail five days a
week. On the day of the July 30th incident, however, Officer Loucks was charged with
escorting Moore to the infirmary for his insulin shot. Because Officer Loucks was the
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transport officer, it would have been his responsibility (not Defendant Harris’s) to cuff
Moore for purposes of transport.
On August 3, 2014, Moore saw Defendant Harris in the medical unit and
Defendant Harris said to Moore: “[y]ou gonna keep [expletive] staring at me?” and told
Moore: “[T]urn around and face the [expletive] wall.” Moore contends that Defendant
Harris began to retaliate against him by coming to his cell and making comments to him
about filing a grievance and putting handcuffs on him.
On August 3, 2014, Moore submitted an emergency grievance to the Warden
against Defendant Harris for excessive use of force. Moore claims he did not receive a
response. Also on August 3, 2014, Moore sent an emergency grievance to the Warden
against Defendant Harris for retaliation. Moore claims he did not receive a response. On
August 13, 2014, Moore filed a second emergency grievance against Defendant Harris for
excessive force, to which he did receive a response. 2 Also on August 13, 2014, Moore filed
a second emergency grievance against Defendant Harris for retaliation and intended it
for his correctional counselor, but it was incorrectly sent to the Grievance Office and
returned to Moore on August 14, 2014.
On August 8, 2014, Defendant Butler received a phone message concerning
Moore’s claims that Defendant Ziegler assaulted him. Defendant Butler ordered that
Moore be seen by medical staff and ordered Defendant Monje to determine if there was
staff misconduct.
2
This grievance was received August 19, 2014, and states “Refer to IA.”
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An August 14, 2014 Memorandum sent to Moore from the grievance officer states:
“Subject: Grievance (s) dated 8/13/14 regarding Staff conduct” and “The attached is
being returned for the reason(s) listed below: directly contradicts which records a
different log for the same date of August 14, 2014.”
Moore states he sent grievances regarding Defendant Harris on September 4 and
October 9, 2014, which were duplicate grievances of his August 3, 2014 grievances. Moore
contends that these also went unanswered. On February 26, 2015, Moore sent grievances
regarding Defendant Harris to the Administrative Review Board (“ARB”). On March 31,
2015, the ARB rejected these grievances because they were untimely.
LEGAL STANDARD
Summary judgment is proper only if the moving party can demonstrate there is
no genuine issue as to any material fact and the movant is entitled to judgment as a matter
of law. See FED. R. CIV. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); RuffinThompkins v. Experian Information Solutions, Inc., 422 F.3d 603, 607 (7th Cir. 2005). Any
doubt as to the existence of a genuine issue of fact must be resolved against the moving
party. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 160 (1970); Lawrence v. Kenosha Cnty.,
391 F.3d 837, 841 (7th Cir. 2004).
A moving party is entitled to judgment as a matter of law where the non-moving
party “has failed to make a sufficient showing on an essential element of h[is] case with
respect to which []he has the burden of proof.” Celotex Corp. v. Catrett, 477 U.S. 317, 323
(1986). A party asserting that a fact is genuinely disputed must support that assertion by
citing to particular materials in the record or by showing that the materials in the record
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do not establish the absence of a genuine dispute. See FED. R. CIV. P. 56. If the non-moving
party does not show evidence exists that would reasonably allow a fact-finder to decide
in its favor on a material issue, the court must enter summary judgment against the nonmoving party. See Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir. 1994).
The Seventh Circuit has stated summary judgment is “the put up or shut up
moment in a lawsuit, when a party must show what evidence it has that would convince
a trier of fact to accept its version of the events.” Steen v. Myers, 486 F.3d 1017, 1022 (7th
Cir. 2007) (quoting Hammel v. Eau Galle Cheese Factory, 407 F.3d 852, 859 (7th Cir. 2005)).
ANALYSIS
I.
Statute of Limitations
Defendant Harris argues that all of Moore’s claims against him are barred by the
applicable statute of limitations and that tolling does not apply to Moore’s claims because
he did not properly exhaust his claims against Defendant Harris. Specifically, Defendant
Harris argues that the statute of limitations is two years, that Moore’s claims against
Defendant Harris occurred on July 30 and August 3, 2014, and that Moore did not file suit
until November 10, 2016. Moore counters that he timely submitted grievances to which
the prison never responded.
Claims brought pursuant to Section 1983 borrow the statute of limitations from the
state in which the alleged violation occurred. See Ashafa v. City of Chicago, 146 F.3d 459,
461 (7th Cir. 1998). Illinois has a two-year statute of limitations for personal injury claims.
See 735 ILL. COMP. STAT. § 5/13-202. Thus, the applicable statute of limitations for Section
Page 8 of 19
1983 claims arising in Illinois is two years. See Woods v. Illinois Dep’t of Children and Family
Servs., 710 F.3d 762, 766 (7th Cir. 2013).
Federal courts also borrow the forum state’s principles of tolling. See Smith v. City
of Chicago Heights, 951 F.2d 834, 839-840 (7th Cir. 1992). Illinois requires tolling by statute
where “the commencement of an action is stayed by injunction, order of a court, or
statutory prohibition.” 735 ILL. COMP. STAT. § 5/13-216. The Seventh Circuit has found
that federal courts must toll the statute of limitations period while an inmate exhausts his
administrative remedies as required by the Prisoner Litigation Reform Act (“PLRA”). See
Johnson v. Rivera, 272 F.3d 519, 522 (7th Cir. 2001). In other words, the statute of limitations
in Section 1983 prisoner lawsuits is tolled while an inmate exhausts the administrative
grievance process. See Klebanowski v. Sheahan, 540 F.3d 633, 639 (7th Cir. 2008); see also
Johnson, 272 F.3d at 522. Tolling begins when the prisoner files his grievance and ends
when the administrative review process is over. See, e.g., Hatch v. Briley, 230 F. App’x 598,
599 (7th Cir. 2007) (noting that time that passed between the plaintiff’s injury and when
he filed his grievance was not part of the tolling period; rather, the tolling period began
the day the plaintiff filed his grievance).
Equitable tolling is available when a plaintiff shows “(1) that he has been pursuing
his rights diligently, and (2) that some extraordinary circumstance stood in his way and
prevented timely filing.” Gray v. Zalecky, 865 F.3d 909, 912 (7th Cir. 2017) (quoting Holland
v. Florida, 560 U.S. 631, 649 (2010)). The court must evaluate the circumstances holistically,
considering “the entire hand that the petitioner was dealt” rather than taking each fact in
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isolation. Socha v. Boughton, 763 F.3d 674, 686 (7th Cir. 2014). Equitable tolling is “rare”
but it does not “exist in name only.” Id. at 684. It is instead a “highly fact-dependent area
in which courts are expected to employ flexible standards on case-by-case basis.” Id.
Here, Moore contends that he repeatedly filed and refiled the same grievances
against Defendant Harris that went unanswered by the prison staff. There is no indication
that the ARB responded to any of the original grievances and the resubmitted grievances
until March 13, 2015 (Doc. 93, p. 80). Once Moore submitted his additional grievances
and did not receive a response, the grievance process became unavailable to him as he
had no further instruction from the ARB. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir.
2006) (noting that a remedy can be unavailable to a prisoner if the prison does not respond
to the grievance or uses misconduct to prevent a prisoner from exhausting his resources);
see also Lewis v. Washington, 300 F.3d 829, 833 (7th Cir. 2002). On these facts, the Court
finds that Moore did all that he could to exhaust his administrative remedies and that the
time during this period should be tolled for statute of limitations purposes. Thus, with
that tolling, Moore’s lawsuit against Defendant Harris was timely filed.
II.
Excessive Force Claim (Count 3)
“Correctional officers violate the Eighth Amendment when they use force not in a
good faith effort to maintain or restore discipline, but maliciously and sadistically for the
very purpose of causing harm.” Wilborn v. Ealey, 881 F.3d 998, 1006 (7th Cir. 2018)
(internal quotations omitted). The Seventh Circuit recognizes excessive force claims
based on overly tight handcuffs. See Tibbs v. City of Chicago, 469 F.3d 661, 666 (7th Cir.
2006). This type of claim cannot, however, be predicated on a de minimis use of force. See
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DeWalt v. Carter, 224 F.3d 607, 619 (7th Cir. 1999). Rather, the quantum of force required
for a constitutional violation is that which is “repugnant to the conscience of mankind.”
Hudson v. McMillian, 503 U.S. 1, 10 (1992).
In determining whether an injury is more than de minimis, “several factors are
relevant, including the need for the application of the force, the amount of force applied,
the threat an officer reasonably perceived, the effort made to temper the severity of the
force used, and the extent of the injury that force caused to an inmate.” Fillmore v. Page,
358 F.3d 496, 504 (7th Cir. 2004). The relevant inquiry is the amount of force used, not the
nature of the plaintiff’s injuries. See Hudson, 503 U.S. at 9; Wilkins v. Gaddy, 559 U.S. 34,
37-38 (2010) (vacating dismissal of excessive-force claim because district court
erroneously focused on extent of injury rather than nature of force applied); see also Reid
v. Melvin, 695 F. App’x 982, 983 (7th Cir. 2017) (stating that “[t]he extent of the plaintiff’s
injury is relevant only insofar as it sheds light on the level of force used.”).
Defendant Harris relies on Dewalt v. Carter, 224 F.3d 607 (7th Cir. 2000), for the
proposition that Moore failed to show that he suffered more than a de minimis use of force.
In Dewalt, the plaintiff alleged an Eighth Amendment excessive use of force claim against
a correctional officer who shoved the plaintiff towards a doorway and the door frame. Id.
at 610-611. The plaintiff alleged that he suffered bruising on his back, but the prison
medical staff did not note any visible injury and did not order any x-rays. Id. at 611. The
Seventh Circuit held that the district court did not err in dismissing the plaintiff’s
excessive force claim for failure to state a claim. Id. at 620. The Seventh Circuit reasoned
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that the correctional officer’s shove was “a single and isolated act, unaccompanied by
further uses of force.” Id. The Seventh Circuit further reasoned that the plaintiff’s injuries
did not appear to be particularly serious. Id. As such, the Seventh Circuit concluded that
the use of force fell short of what was required under the Eighth Amendment. Id.
The facts here, however, after drawing all inferences in Moore’s favor, are not
analogous to those in Dewalt. Defendant Harris argues that his cuffing of Moore is more
like a single, isolated act, and the use of force was such that would normally be applied
in similar situations. But Defendant Harris’s cuffing of Moore on July 30th was not a
single, isolated act; instead, it was an act that cannot be divorced from the previous July
25th cuffing incident involving Defendant Ziegler and Defendant Newcomb about which
Moore complained. A reasonable juror could conclude that Defendant Harris’s July 30th
cuffing incident was done maliciously and sadistically against Moore because Moore had
previously complained against Defendant Harris’s shower detail partner, Defendant
Ziegler. This is supported by the fact that Defendant Harris, and not Officer Loucks, was
the one who cuffed Moore, even though Officer Loucks was the individual responsible
for transporting Moore to medical. This is further supported by the fact that, as Moore
passed Defendant Ziegler on the way to medical, Defendant Ziegler commented on
whether the cuffs were on too tight. Finally, Moore testified that Defendant Harris would
come into his cell and harass Moore for filing grievances.
It is also clear that the amount of force used against Moore was far more than the
isolated push suffered by the plaintiff in Dewalt. The Seventh Circuit in Dewalt concluded
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that the amount of force used against the plaintiff was de minimis because there did not
appear to be any visible injury to the plaintiff. Here, however, Defendant Harris
purposefully clamped the handcuffs on Moore to the bone causing him a crushing pain
and throbbing sensation in both of his wrists, which lasted for more than fifteen
minutes—until Moore’s handcuffs were loosened. Moore also testified that there were
ridges on his wrists because of the incident. There was also evidence of scar tissue
damage on Moore’s wrists when he was finally seen by medical personnel on August
11th. Thus, a reasonable juror could conclude that the force applied by Defendant Harris
was more than de minimis and was not justified under the circumstances. As such, the
evidence construed in the light most favorable to Moore is sufficient to withstand
summary judgment on the excessive force claim.
III.
Retaliation Claim (Count 5)
Moore contends that Defendant Harris retaliated against him by handcuffing him
too tight again on August 3, 2014, in violation of his First Amendment rights. To prevail
on his First Amendment retaliation claim, Moore must show that: (1) he engaged in
activity protected by the First Amendment; (2) Defendant Harris took actions that would
deter a person of “ordinary firmness” from engaging in the protected activity; and (3) the
First Amendment activity was at least a “motivating factor” in Defendant Harris’s
decision to take those actions. Bridges v. Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). The filing
of a lawsuit is protected by the First Amendment. See Novoselsky v. Brown, 822 F.3d 342,
355 (7th Cir. 2016).
Page 13 of 19
Here, a reasonable juror could find that Defendant Harris handcuffed Moore too
tight again on August 3, 2014, in retaliation for filing grievances, for filing emergency
grievances, and for sending letters to Defendant Butler. Moore contends that Defendant
Harris subjected him to continuing harassment because of his grievances/complaints.
Moore’s testimony concerning his grievances against Officers Defendant Newcomb and
Defendant Ziegler for the July 25, 2014 assault, his testimony concerning his grievances
against Defendant Harris, the comments that Defendant Harris supposedly made prior
to handcuffing him and the comments that Defendant Harris supposedly made to Moore
after the incidents are sufficient to establish disputes of fact regarding his claim of
retaliation. Thus, the Court also denies summary judgment as to this issue.
IV.
Qualified Immunity
Further, the undersigned finds that Defendant Harris is not entitled to qualified
immunity. “The doctrine of qualified immunity protects government officials from
liability for civil damages when their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.”
Humphries v. Milwaukee Cnty., 702 F.3d 1003, 1006 (7th Cir. 2012) (citations and quotation
marks omitted).
As noted above, a jury could find that Defendant Harris violated Moore’s
constitutional rights. Thus, the only remaining question is whether those rights were
clearly established. In 2014, it was clearly established that using handcuffs to inflict
prolonged or unnecessary pain on a prisoner violated the Eighth Amendment, and that
prison officials may not retaliate against inmates for filing grievances. See Ajala v. Tom,
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658 F. App’x 805, 806 (7th Cir. 2016); see also Rabin v. Flynn, 725 F.3d 628, 636 (7th Cir.
2013) (holding that officer who knew tight handcuffs would cause arrestee unnecessary
pain not entitled to qualified immunity); see also DeWalt, 224 F.3d at 618 (noting that
prison officials may not retaliate against inmates for filing grievances). Thus, Defendant
Harris is not entitled to qualified immunity on the excessive force claim or the retaliation
claim.
V.
Negligent Spoliation (Count 4)
Defendant Butler and Defendant Monje argue that this claim is barred by state law
sovereign immunity as they had no duty to preserve the video and that any duty that
could be imputed on them would arise solely because of their employment.
“Under Illinois law, spoliation of evidence is treated as a negligence action.” Duran
v. Town of Cicero, 653 F.3d 632, 644 (7th Cir. 2011) (citing Boyd v. Travelers Ins. Co., 652
N.E.2d 267, 270–271 (Ill. 1995)); see also Borsellino v. Goldman Sachs Grp., Inc., 477 F.3d 502,
509-510 (7th Cir. 2007) (stating that “negligent spoliation is not itself an independent tort
but rather a type of negligence.”). “Accordingly, a plaintiff claiming spoliation of
evidence must prove that: (1) the defendant owed the plaintiff a duty to preserve the
evidence; (2) the defendant breached that duty by losing or destroying the evidence;
(3) the loss or destruction of the evidence was the proximate cause of the plaintiff’s
inability to prove an underlying lawsuit; and (4) as a result, the plaintiff suffered actual
damages.” Martin v. Keeley & Sons, Inc., 979 N.E.2d 22, 27 (Ill. 2012). Although the “general
rule in Illinois is that there is no duty to preserve evidence,” a “voluntary undertaking”
may give rise to such a duty, particularly where “a reasonable person in the defendant’s
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position should have foreseen that the evidence was material to a potential civil action.”
Id. at 28.
The Illinois State Lawsuit Immunity Act provides that, except as provided in the
Court of Claims Act, among others, the State of Illinois shall not be made a defendant or
party in any court. See 745 ILL. COMP. STAT. § 5/1. The Court of Claims Act requires all
claims against the state “sounding in tort” to be heard in that court. 705 ILL. COMP. STAT.
§ 505/8(d). “[S]tate rules of immunity are binding in federal court with respect to state
causes of action.” Omosegbon v. Wells, 335 F.3d 668, 673 (7th Cir. 2003).
As such, if Moore’s state law negligent spoliation claim is really against the State
of Illinois itself, rather than against Defendants Monje and Butler, then the claim must be
dismissed without prejudice and litigated in the Illinois Court of Claims. See Jinkins v. Lee,
807 N.E.2d 411, 417 (Ill. 2004). “Whether an action is in fact one against the State, and
hence one that must be brought in the Court of Claims, depends not on the formal
identification of the parties but rather on the issues involved and the relief sought.” Healy
v. Vaupel, 549 N.E.2d 1240, 1247 (Ill. 1990). As it relates to the issues involved, the Illinois
Supreme Court has stated that an action is against the state when there are:
(1) no allegations that an agent or employee of the State acted beyond the scope of
his authority through wrongful acts; (2) the duty alleged to have been breached
was not owed to the public generally independent of the fact of State employment;
and (3) where the complained-of actions involve matters ordinarily within that
employee’s normal and official functions of the State . . . .
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Id. “Sovereign immunity affords no protection, however, when it is alleged that the
State’s agent acted in violation of statutory or constitutional law or in excess of his
authority.” Nichol v. Stass, 735 N.E.2d 582, 586 (Ill. 2000).
The Court finds that this claim is barred by sovereign immunity and should have
been filed with the Illinois Court of Claims, because the evidence reveals that this is a
claim against the State of Illinois. Moore argues that the claim is against Defendant Butler
and Defendant Monje in their individual capacities and that they had a duty to him, a
state prisoner, as state supervisory officials to preserve this evidence that was/is material
to a potential civil action. Further, as state supervisory officials charged with maintaining
the facility security surveillance cameras, Moore contends that Defendant Butler and
Defendant Monje were required to ensure that the cameras were fully functional for
security purposes.
The Court disagrees. The negligent spoliation claim meets all the requirements
outlined in Healy for ascertaining whether a claim is actually against the State. Moore
does not allege that Defendant Butler and Defendant Monje acted outside the scope of
their authority. Rather, Moore contends that Defendant Butler and Defendant Monje
failed to exercise the authority they had through their employment with the State of
Illinois. In addition, whatever duties Defendant Butler and Defendant Monje had to
preserve the video tapes in the prison facility arises solely by virtue of their state
employment. Finally, the claim against Defendant Butler and Defendant Monje involves
matters within their normal functions in the correctional facility. For these reasons, the
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Court grants summary judgment and dismisses without prejudice Count 4, as the Illinois
Court of Claims is conferred with the exclusive jurisdiction to hear such a claim.
VI.
Defendant Aimee Lang (Count 6)
Defendant Lang filed a motion for summary judgment on February 5, 2019
(Docs. 101-103), arguing that she is entitled to judgment as a matter of law because she
was not at work during much of the alleged timeframe and because there is no evidence
showing that Moore ever requested medical treatment from her. On March 15, 2019,
Moore filed a response to the motion (Doc. 104), in which he concedes that there are no
meritorious arguments in opposition to Lang’s motion. In a nutshell, it appears that
Moore named the wrong defendant, and he now seeks to dismiss Lang from the case with
prejudice. Accordingly, the motion filed by Lang is granted, and she is dismissed from
this action with prejudice.
CONCLUSION
For the reasons set forth above, the Court GRANTS in part and DENIES in part
the motion for summary judgment filed by Defendants Butler, Harris, and Monje
(Doc. 74). The Court denies the motion as to the claims against Defendant Harris in
Counts 3 and 5 and grants the motion as to the claims against Defendant Butler and
Defendant Monje in Count 4. Moore’s claim in Count 4 is DISMISSED without prejudice
as to refiling in the Illinois Court of Claims. Thus, Defendant Butler and Defendant Monje
are DISMISSED without prejudice, and the Clerk of Court is DIRECTED to
TERMINATE these individuals as parties to this case.
In addition, the motion for summary judgment filed by Defendant Lang (Doc. 101)
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is GRANTED, and the claims against her are DISMISSED with prejudice. The Clerk
shall terminate Lang as a party to the case and enter judgment in her favor at the
conclusion of the entire action.
Magistrate Judge Sison is DIRECTED to recruit counsel to represent Moore at
trial. Once counsel is recruited and enters an appearance, the undersigned will set this
matter for a status conference to select firm dates for a final pretrial conference and jury
trial.
IT IS SO ORDERED.
DATED: March 26, 2019
____________________________
NANCY J. ROSENSTENGEL
United States District Judge
Page 19 of 19
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