Braboy v. Illinois Department of Corrections et al

Filing 39

ORDER adopting 38 Report and Recommendations and granting 15 Motion to Dismiss. The Court DISMISSES with prejudice Count 12 of plaintiff's complaint and defendant IDOC. The Clerk of the Court shall enter judgment reflecting the same at the conclusion of the case. Signed by Judge David R. Herndon on 7/30/2018. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAMIEN BRABOY,
Plaintiff,
v.
ILLINOIS DEPARTMENT OF
CORRECTIONS, JACQUELINE A.
LASHBROOK, CALEB E. ZANG, A.
MASTERSON, SGT. SNELL, K. ELLIS
and C/O GRAVES,
Defendants.

No. 17-cv-922-DRH
MEMORANDUM and ORDER

HERNDON, District Judge:
Plaintiff, currently incarcerated at Pontiac Correctional Center, brought this
pro se civil rights action pursuant to 42 U.S.C. § 1983 alleging his constitutional
rights were violated while he was incarcerated at Menard Correctional Center (Doc.
1). Plaintiff claims defendants were deliberately indifferent to his serious medical
issues, subjected him to unconstitutional conditions of confinement, violated his
due process rights, interfered with his access to courts, and retaliated against him
in violation of the Eighth, Fourteenth, and First Amendments. The Court screened
plaintiff’s complaint pursuant to 28 U.S.C. § 1915A and the following claims
survived review:
Count 3: Lashbrook failed to intervene when Plaintiff was subjected to
retaliation, cruel and unusual punishment, unlawful detention,
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harassment, and deliberate indifference to his medical needs by
individual defendants;
Count 6: Lashbrook and Graves showed deliberate indifference to
Plaintiff’s serious medical need involving the injury he sustained to his
eyes on march 28, 2017, in violation of the Eighth Amendment;
Count 7: Masterson, Snell, Ellis, and Zang retaliated against Plaintiff
for and/or exercised prior restraint on Plaintiff to prevent Plaintiff from
filing grievances and otherwise complaining about his treatment, in
violation of the First Amendment;
Count 9: Illinois state law claim against Masterson, Snell, Graves, Ellis
Zang, and Lashbrook for intentionally inflicting emotional distress
upon Plaintiff; and
Count 12: Illinois state law claims against the Illinois Department of
Corrections for indemnification.
(Doc. 8).
On November 28, 2017, defendants filed a partial motion to dismiss (Doc.
15).

Specifically, defendants move to dismiss Count 12, the indemnification

claim, arguing that the Illinois State Employee Indemnification Act, 5 ILCS
350/0.01, et seq. does not provide for a private cause of action and plaintiff fails to
state a claim upon which relief can be granted.

Braboy opposes the motion stating

that he does not understand the motion, but argues that he should be allowed to
proceed because the Court allowed the claim in its initial Order (Doc. 32).
On July 10, 2018 Magistrate Judge Reona J. Daly, pursuant to 28 U.S.C. §
636(b)(1)(B), submitted a Report and Recommendation (“the Report”) (Doc. 38).
The Report recommends that the Court grant the partial motion to dismiss. The
Report found: “[a]s correctly argued by Defendants, the Illinois State Employee
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Indemnification Act does not expressly create a private cause of action, and there
has been no showing that Plaintiff meets the criteria for an implied cause of action.
See 5 ILCS 350/2; see also Emerald Pork, II, Ltd v. Purina Mills, Inc., 17
F.Supp.2d 816, 8117 (C.D. Ill. Sept. 23, 1998)(‘A private cause of action will be
implied in Illinois only if: (1) plaintiff is a member of a class for whose benefit the
Act was enacted; (2) it is consistent with the underlying purpose of the Act; (3)
plaintiff’s injury is one the Act was designed to prevent; and (4) it is necessary to
provide an adequate remedy for violations of the Act.’)…. Accordingly, Count 12
against the IDOC must be dismissed as it is premised on a ‘mere legal conclusion’
that ‘does not … purport to make a substantive claim,’ and a federal court cannot
enter a money judgment requiring the State of Illinois to indemnify its employees.
Id.” (Doc. 38, p. 3).
The Report was sent to the parties with a notice informing them of their right
to appeal by way of filing “objections” within 14 days of service of the Report. To
date, none of the parties has filed objections.

The period in which to file

objections has expired. Therefore, pursuant to 28 U.S.C. § 636(b), this Court
need not conduct de novo review.

Thomas v. Arn, 474 U.S. 140, 149-52 (1985).

Accordingly, the Court ADOPTS the Report in its entirety (Doc. 38). The
Court GRANTS defendants’ partial motion to dismiss (Doc. 15).

The Court

DISMISSES with prejudice Count 12 of plaintiff’s complaint and the IDOC as a
defendant.

The Court DIRECTS the Clerk of the Court to enter judgment
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reflecting the same at the conclusion of this case.
IT IS SO ORDERED.

Judge Herndon
2018.07.30
11:20:33 -05'00'
United States District Judge

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