Hampton v. Baldwin et al

Filing 170

ORDER denying 155 Defendants' Motion for Partial Summary Judgment. A jury trial and final pretrial conference will be set by separate order. Signed by Chief Judge Nancy J. Rosenstengel on 6/23/2021. (beb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DEON HAMPTON,
Plaintiff,
vs.
KEVIN KINK, OFFICER BURLEY,
JOHN VARGA, TAYLOR GEE,
ARTHUR MANZANO,
JACOB BLACKBURN,
CHRISTOPHER DOERING,
and SUSAN KUNDE,
Defendants.

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Case No. 18-cv-550-NJR-MAB

MEMORANDUM AND ORDER
ROSENSTENGEL, Chief Judge:
This matter is before the Court on Defendants’ Motion for Partial Summary
Judgment (Doc. 155). Plaintiff Deon “Strawberry” Hampton opposes the motion
(Doc. 163). For the reasons set forth below, the Court denies the motion.
BACKGROUND
Hampton is a former prisoner who filed this action pursuant to 42 U.S.C. § 1983,
seeking redress for alleged civil rights violations that occurred during her incarceration
and related state law claims. 1 (Doc. 138). Hampton is a 27-year-old transgender woman
who was diagnosed with gender dysphoria2 in 2012 while in the custody of the Illinois

Hampton was incarcerated at the time she filed this action but subsequently released.
Gender dysphoria is described by Hampton’s expert Dr. George Brown as “a significant
mismatch between a person’s experienced gender identity and their sex assignment at birth …

1
2

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Department of Corrections (“IDOC”). (Doc. 138, p. 5). IDOC officials also designated her
as Seriously Mentally Ill (“SMI”) in July 2017 when she was diagnosed with Bipolar
Disorder. (Doc. 138, p. 13). Hampton was born an anatomical male and has identified as
a female since age five; she began living as a girl at that age and continued to live as a
young woman throughout her incarceration. (Doc. 138, p. 1). She has been treated with
cross-sex hormones since July 2016; her lab tests have shown she is no longer in the male
range for testosterone levels and she is in the female range for estrogen levels. (Doc. 138,
pp. 5-6).
Hampton was housed in men’s prisons at all times relevant to this action, where
she was subjected to sexual and physical attacks, and verbal and emotional abuse by
prison staff and prisoners. (Doc. 138, pp. 2, 6-7). She filed a previous lawsuit over abuse
that occurred while she was housed at Menard Correctional Center, 3 which resulted in
an agreement to transfer her to Lawrence Correctional Center (“Lawrence”) on January
10, 2018. She alleges that the harassment and abuse continued at Lawrence, including the
filing of false disciplinary tickets against her by officers which resulted in her confinement
in segregation for approximately one year, where her mental health deteriorated and she
attempted suicide several times. (Doc. 138, pp. 2-3, 7-10).
Hampton filed this lawsuit on March 8, 2018, while she was imprisoned at
Lawrence. On March 16, 2018, she was transferred to Dixon Correctional Center

caus[ing] enough distress or impairment that it reaches the level of a clinical diagnosis in
psychiatry.” (Doc. 98, p. 12).
3
Hampton v. Lashbrook, et al., Case No. 17-936-DRH-RJD (S.D. Ill.).

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(“Dixon”) and was immediately placed in segregation. (Doc. 138, pp. 3, 11-13). She began
to receive adequate mental health treatment at Dixon, but after her release from
segregation, the harassment from Dixon officers escalated. She was given three allegedly
retaliatory tickets and, after spending just one month in general population, she was sent
back to segregation where she again attempted suicide. (Doc. 138, pp. 3-4, 13-18). In
December 2018, Hampton was transferred to Logan Correctional Center, a women’s
facility, after this Court partially granted her motion for preliminary injunctive relief.
(Doc. 105; Doc. 138, p. 18).
Hampton seeks relief against both Lawrence and Dixon officials in this action. Her
Second Amended Complaint asserts Eighth Amendment claims against all Defendants
for failure to protect her from harm inflicted on her because of her transgender status
(Count I); against Varga and Kink for placing/keeping her in segregation for
approximately one year despite their knowledge of her deteriorating mental health
(Count II); and against Burley for excessive force on February 18, 2018, and Doering and
Kunde for excessive force on June 26, 2018 (Count III). She further alleges that Burley’s
actions on February 18, 2018, violated the Illinois Hate Crimes Act (Count IV), and that
all Defendants intentionally inflicted emotional distress on her (Count V). (Doc. 138,
pp. 20-24).
Defendants seek summary judgment on the basis that they did not violate
Hampton’s constitutional rights, the claims against Kink are barred by the statute of
limitations, they are entitled to qualified immunity, and the claim for intentional infliction
of emotional distress is barred by sovereign immunity. They do not seek summary
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judgment on the claims against Burley. (Doc. 155; Doc. 156, p. 2).
RELEVANT FACTS
Defendants’ Memorandum supporting the Motion for Partial Summary Judgment
sets forth their version of “Undisputed Material Facts” (Doc. 156, pp. 3-14). Hampton’s
Response takes issue with Defendants’ factual statements on the grounds that they are
either incomplete or are in dispute, and she sets forth additional factual statements.
(Doc. 163, pp. 2-26).
I.

Lawrence Correctional Center
The parties agree that Hampton was incarcerated at Lawrence from January 10,

2018, to March 16, 2018, and that she remained in segregation in a single cell for that entire
time. (Doc. 156, p. 3; Doc. 163, p. 2). Before arriving at Lawrence, she had been housed in
segregation for the previous eight months. (Doc. 163, pp. 2-3).
On January 23, 2018, Hampton made a PREA 4 complaint against inmate Sheif for
exposing his genitals to her while they were outside for yard time, masturbating in her
presence, throwing his semen at her, and threatening to rape her. The complaint was
substantiated by Internal Affairs (“IA”), Sheif was issued a disciplinary ticket, and a Keep
Separate From (“KSF”) order was issued between Sheif and Hampton. (Doc. 156, p. 4;
Doc. 163, p. 3). Kink took over as warden on February 1, 2018, and became aware of
Hampton’s transgender status at that time. (Doc. 156, p. 4). Kink approved Sheif’s
discipline including a transfer/KSF order. (Doc. 163, p. 3). But on February 21, 2018—one

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Prison Rape Elimination Act.

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week after the KSF was issued—Sheif was placed in the shower area close to Hampton,
where he continued his harassment, bragging that he had not been disciplined for the
yard incident and repeating his rape threat. (Doc. 163, pp. 3-4). Kink asserts that Sheif
and Hampton were inadvertently placed near each other for no more than thirty minutes.
(Doc. 156, p. 7). Hampton filed a second PREA complaint on Sheif for the shower incident
which was substantiated; the officer who placed Sheif in the showers admitted he was
unaware of the KSF order. (Doc. 163, p. 4). Kink signed off on the IA investigation report.
On February 18, 2018, Officer Burley escorted Hampton to the segregation yard.
According to Hampton, Burley told her to “cuff the fuck up,” tightened and twisted her
handcuffs during the escort, and called her a “fag.” (Doc. 163, p. 4). She informed Burley
that she wanted to go to her special cage (which kept her separate from other inmates for
her safety) and began walking in that direction. Burley “tried to direct [Hampton] to a
different area of the segregation yard” and a “physical confrontation” ensued; the parties
dispute who initiated it. (Doc. 156, pp. 5-6). Hampton asserts that Burley responded to
her movement by yanking her cuffs and slamming her into a cage, then repeatedly
slammed her face into the cage’s gate while kneeing or kicking her leg and back.
(Doc. 163, p. 5). Other officers pulled Burley off her. Her documented injuries included a
black eye, swollen face, and skin abrasions. Id. Burley filed a disciplinary ticket against
Hampton claiming that she kicked him, a charge she denies. She filed an emergency
grievance over Burley’s actions; Kink did not discipline Burley. 5 Hampton’s ticket for

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Burley was transferred to a different facility two weeks after the incident. (Doc. 163, p. 6).

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assaulting Burley was not heard until after she was moved to Dixon; she was found guilty
and punished with one month in segregation and other sanctions. (Doc. 156, p. 6).
On February 21, 2018, a Lawrence officer wrote Hampton a ticket for allegedly
exposing her breasts to him while she was alone in her cell; their accounts of the incident
differ. (Doc. 156, p. 7; Doc. 163, p. 7). Defendants claim Hampton admits she showed the
officer her breasts. Hampton denies that claim and asserts the officer came to her cell door
while she had her shirt off and was wearing a sports bra; she told the officer she had
nothing to say to him and requested a PREA phone call which he denied. Hampton was
found guilty of the sexual misconduct ticket, and Kink approved her punishment of three
months in segregation. (Doc. 156, p. 7; Doc. 163, p. 7).
II.

Dixon Correctional Center
Hampton was moved to Dixon on March 16, 2018, and remained there until

December 21, 2018. She was housed in segregation for all but one month; between May
25 and June 26, 2018, she was in general population. (Doc. 163, p. 8). Varga was the
warden of Dixon during Hampton’s incarceration there. (Doc. 156, p. 8). On March 28,
2018, Varga approved the 1-month imposition of discipline for the Burley incident on
February 18, 2018, at Lawrence. On May 7, 2018, Varga reduced the 3-month segregation
term for the February 21 sexual misconduct ticket at Lawrence to one month because of
Hampton’s mental health status and improved behavior. (Doc. 156, p. 8).
Hampton describes multiple incidents of sexual harassment and assault
perpetrated by eight other inmates during her approximate nine months at Dixon.
(Doc. 163, pp. 8-12, 16-20).
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A. Incidents With Inmates Prombo, Clemmons, and Robinson
Inmate Prombo repeatedly groped Hampton’s breasts and buttocks, exposed his
genitals to her, and threatened to rape her, nearly every day over a two week period in
April 2018. (Doc. 163, pp. 8-10). Hampton states officers ignored her repeated complaints
and requests to be separated from Prombo. Id. Defendants note Hampton did not initially
report Prombo’s conduct to them, but she eventually told Blackburn and Manzano
(Internal Affairs officers) after asking to make a PREA complaint. (Doc. 156, p. 10).
Blackburn substantiated the PREA complaint against Prombo after an investigation.
Prombo was disciplined but then released from segregation after a few days, while
Hampton remained in segregation. (Doc. 156, p. 10; Doc. 163, p. 9). Hampton faults
Manzano and Blackburn for making no recommendations to ensure her safety in their
role as members of the PREA Incident Review Committee. She states Varga took no action
to protect her from future assaults such as issuing a KSF order between her and Prombo
when she was released into general population and saw him daily. (Doc. 163, p. 10). 6
Varga asserts that while he spoke to Hampton several times, she never made any requests
of him relevant to her safety. (Doc. 156, p. 9).
Inmate Clemmons sexually assaulted and harassed Hampton in late May-early
June 2018 by touching her breasts and buttocks, attempting to kiss her and to put his
mouth on her breast, masturbating in front of her, demanding oral sex from her, and

In the September 2018 hearing on Hampton’s Motion for Preliminary Injunction, the Assistant
Warden of Operations at Dixon, Justin Wilks, could not testify to any measures taken to protect
Hampton after her PREA allegations against Prombo were substantiated. (Doc. 105, p. 6; Doc. 99,
p. 78).
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threatening to rape her and stab her in the face. (Doc. 163, pp. 10-11). Hampton reported
these incidents to correctional officers and mental health staff, but they failed to protect
her. Defendants note Hampton did not report Clemmons’s conduct to them. (Doc. 156,
p. 11). Hampton called the PREA hotline on June 5, 2018, after which Blackburn
investigated and interviewed two inmates who corroborated her claims. Blackburn
deemed her complaint unsubstantiated, however, and Varga approved the investigation
report. Id. Defendants note Clemmons was transferred to another prison. (Doc. 156, p. 11).
Inmate Robinson began to sexually harass Hampton in late June 2018, offering her
food in exchange for sex, then threatening violence when she refused. On June 25, 2018,
Robinson touched Hampton inappropriately and grabbed her buttocks, she pushed his
hand away, and then Robinson punched her in the face. Hampton hit him back. (Doc. 163,
p. 11). This altercation was reported to officers, and Manzano interviewed Robinson, who
had injuries to his face. (Doc. 156, p. 11). Robinson claimed Hampton assaulted him
because he told staff that Hampton was pulling her pants down. Id.
Hampton later (on August 1, 2018) filed a grievance over Robinson’s sexual assault
on her. (Doc. 163, p. 11). The grievance officer deemed it unfounded on the basis that IA
adequately addressed Hampton’s claims (see next section below). Hampton alleges that
Manzano and Blackburn admitted they never investigated her allegations, and
Defendants prevented Hampton from filing a PREA complaint against Robinson. Id.
Officer Gee wrote Hampton a ticket for assaulting Robinson; Hampton claims Gee never
investigated her allegations that Robinson assaulted her. (Doc. 163, p. 12). Varga
approved her punishment with one month of segregation as a result of that ticket.
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B.

Pepper Spray Incident

On June 26, 2018—the day after the altercation with Robinson—Manzano,
Blackburn, and a third officer 7 interviewed Hampton about the incident. (Doc. 156, p. 12;
Doc. 163, pp. 12-16). She told them that Robinson sexually assaulted her and they fought
after Robinson hit her first; she admitted she struck Robinson. Manzano told Hampton
she was going to segregation for inmate assault. (Doc. 156, p. 12; Doc. 163, p. 12).
According to Hampton, Manzano told her he was tired of her PREA complaints and
wanted her transferred out of Dixon. (Doc. 156, p 12). The officers sent Hampton
downstairs to a waiting area. When they rejoined her, Hampton was crying and asked to
speak to someone from mental health and a PREA coordinator, which Defendants
refused.
Approximately seven or eight officers arrived to take Hampton to segregation,
including Doering, Gee, Kunde, and Varga. (Doc. 156, p. 12). Hampton remained seated
and asked again for mental health and PREA and told the officers she felt suicidal. She
states she was crying and hyperventilating. Hampton’s requests for a mental health and
PREA staffer were again refused. (Doc. 156, p. 12; Doc. 163, pp. 12-13). Gee admitted to
knowingly ignoring the request because complying with the PREA standards was not
their “main priority” at the time. (Doc. 163, pp. 12-13).
Kunde and Doering testified they ordered Hampton to cuff up to go to

Defendants note the third officer was Kraft, and Hampton believes it was Gee; regardless, Gee
was later present in the lobby when Hampton was pepper-sprayed. (Doc. 156, p. 12; Doc. 163,
p. 12).

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segregation; Hampton stated she did not hear an order to cuff up. (Doc. 163, p. 13). She
realized officers were about to spray her with pepper spray and covered her face with
her hands. While Hampton remained seated, multiple officers, including Doering and
Kunde, sprayed her with pepper spray. (Doc. 156, p. 12; Doc. 163, p. 13). Hampton states
Doering and Manzano grabbed her hands away from her face and slammed her to the
ground from her seated position. (Doc. 163, p. 13). Defendants assert an officer tried to
take hold of her arm and she yanked it away. (Doc. 156, p. 12). Doering testified Hampton
stood up from the chair, flailed her arms, and lightly struck Doering and Manzano in the
face before they took her down to the ground. (Doc. 163, p. 14; Doc. 163-21, pp. 29-30).
While Hampton was on the ground, Doering put his foot on her neck, Manzano put his
foot on her head, and another officer (Arneson, not a defendant) had his knee to her back
and held her ankles. (Doc. 156, p. 12; Doc. 163, p.14). Doering and Manzano put Hampton
in handcuffs, and Arneson cuffed her feet. Kunde pepper sprayed Hampton’s uncovered
face while she was pinned to the ground, later testifying she did so because Hampton
was combative and Manzano and Doering could not control and restrain her. (Doc. 163,
p. 15). Hampton states she did not physically resist and Doering said he was able to apply
the cuffs within 5-10 seconds of placing her on the ground. Id.
Gee observed the above incident but did not personally use force on Hampton; she
wrote up an incident report in which she referred to Hampton exclusively with male
pronouns. (Doc. 163, p. 15). Varga reviewed the report and discussed with an assistant
warden the need to have staff use proper language in reports. (Doc. 156, p. 13).
Within hours of being placed in segregation, Hampton attempted suicide by
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hanging and was placed on crisis watch for four days. Varga learned of the suicide
attempt the next day; he spoke with the mental health supervisor regarding what should
be done for Hampton and discussed the possibility of transferring her to a women’s
facility. (Doc. 156, p. 13). While on crisis watch, Hampton was placed in a cell with blood
and mold on the walls and was seen by a mental health counselor for only ten minutes
per day. (Doc. 163, p. 15). When Hampton came off crisis watch, she again attempted
suicide and returned to crisis watch for another four days. Id.
Hampton was disciplined on tickets written by Manzano for assault and
intimidation/threats on the officers and by Doering for disobeying an order and assault,
in connection with the pepper spray incident. She was punished with three months in
segregation, approved by Varga—despite his awareness of Hampton’s suicide attempts
while in segregation. (Doc. 163, pp. 15-16).
C.

Video Surveillance and Incidents with Inmates Foreman and Jones

Following the pepper spray incident, Varga authorized video surveillance of
Hampton while she was on the segregation yard on July 30, 2018. (Doc. 163, p. 17). Varga
testified he initiated the surveillance because he believed Hampton was provoking
inappropriate sexual behavior on the part of other prisoners. (Doc. 163, p. 17; Doc. 16313, pp. 43-44). During approximately 53 minutes of surveillance, officers saw inmate
Foreman hug Hampton and grab her breast and also saw inmate Jones grope her breasts
and buttocks, but did not intervene to stop this behavior. Hampton was issued a ticket
for sexual misconduct and damage or misuse of property. Varga approved the
punishment of two months segregation; Hampton states Varga made no effort to
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determine whether she willingly engaged in the above conduct or was forced to do so.
(Doc. 163, p. 17). Varga did not discipline any of the officers who observed Hampton
being touched sexually and did not intervene. Id.
Hampton filed PREA complaints against Foreman and Jones for groping her on
July 30, 2018; Blackburn investigated but found her claims unsubstantiated despite the
video evidence. Varga approved the IA investigation reports. (Doc. 163, p. 17).
D.

Incidents with Inmates Thomas, Sims, and Jackson

On October 6, 2018, inmate Thomas was housed next to Hampton in segregation
and verbally threatened her with violent rape and death. (Doc. 163, p. 18). IA found
Hampton’s PREA complaint to be unsubstantiated without interviewing an inmate who
witnessed the incident.
Inmates Sims and Jackson, who worked in dietary, sexually abused Hampton
between June and October 2018 by coercing her to perform sexual acts in front of them in
exchange for better meal portions and for passing kite messages. (Doc. 163, p. 19). When
she stopped doing this, they gave her scant food portions, and Jackson exposed himself
to her. She filed a PREA complaint on October 27, 2018; Blackburn interviewed Sims and
Jackson and substantiated Hampton’s claims. Varga approved the investigation report.
IA did not issue a KSF order between Hampton and Sims and Jackson, despite Hampton’s
request. Hampton was disciplined (but not given additional segregation) for sexual
misconduct and trading or trafficking. Id.
Blackburn and Manzano served on the PREA Incident Review Committees which
reviewed Hampton’s PREA complaints, several of which were substantiated. Hampton
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states they nonetheless failed to identify any changes in policies or practices to improve
prevention, detection, or responses to sexual abuse. (Doc. 163, pp. 9, 11, 18, 20). Hampton
claims Varga likewise took no action to protect her from future assaults after reviewing
the PREA investigation reports. (Doc. 163, p. 9).
Hampton faults Varga for not exercising his discretion to reduce the time she
served in segregation, even though Varga was aware of her SMI designation and suicide
attempts. (Doc. 156, pp. 9, 13; Doc. 163, pp. 20-21). Varga notes that he cut her segregation
time by two months in May 2018 for the Lawrence sexual misconduct ticket from
February 21, 2018. (Doc. 156, p. 8). Hampton criticizes Varga’s approval of seven months’
additional segregation time for subsequent tickets, even where mental health staff
recommended no additional segregation would be appropriate. (Doc. 163, pp. 20-21).
III.

Issues Common to Lawrence and Dixon
Burley and other officers at both Lawrence and Dixon called Hampton derogatory

names and constantly misgendered her, referring to her with male pronouns. (Doc. 163,
pp. 21-23). Burley was not disciplined for calling Hampton a “fag” before beating her at
Lawrence. Hampton’s PREA complaints over such name calling were not substantiated.
Hampton alleges Kink and Varga never instructed their staff to use proper pronouns with
her or to refrain from calling her derogatory names. Id. Varga asserts that IDOC
employees are trained to use the correct terminology with transgender inmates and to
treat them with dignity. (Doc. 156, p. 9).
Kink, Burley, Blackburn, and Doering all participated in the “Behind the Walls”
Facebook group for IDOC employees, where many posts and comments hostile to
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transgender prisoners, some of them violent, were shared. (Doc. 163, pp. 23-26). Burley
commented on a post specifically about Hampton and publicized her housing
assignment before his attack on her. Varga was aware of this group and knew that at least
one Dixon officer had posted disparaging comments about Hampton, but that officer
faced no discipline or other consequences. (Doc. 163, p. 25).
LEGAL STANDARDS
I.

Summary Judgment Standard
Federal Rule of Civil Procedure 56 governs motions for summary judgment.

“Summary judgment is appropriate only ‘if the movant shows that there is no genuine
dispute as to any material fact and that the movant is entitled to judgment as a matter of
law.’” Anderson v. Donahoe, 699 F.3d 989, 994 (7th Cir. 2012) (quoting FED. R. CIV. P. 56(a)).
Accord Archdiocese of Milwaukee v. Doe, 743 F.3d 1101, 1105 (7th Cir. 2014). The moving
party bears the initial burden of demonstrating the lack of any genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once a properly supported motion
for summary judgment is filed, the adverse party “must set forth specific facts showing
there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).
A genuine issue of material fact exists when “the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248. Accord Estate
of Simpson v. Gorbett, 863 F.3d 740, 745 (7th Cir. 2017).
In assessing a summary judgment motion, the Court views the facts in the light
most favorable to, and draws all reasonable inferences in favor of, the nonmoving party.
Donahoe, 699 F.3d at 994; Delapaz v. Richardson, 634 F.3d 895, 899 (7th Cir. 2011). As the
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Seventh Circuit has explained, as required by Rule 56(a), “we set forth the facts by
examining the evidence in the light reasonably most favorable to the non-moving party,
giving her the benefit of reasonable, favorable inferences and resolving conflicts in the
evidence in her favor.” Spaine v. Cmty. Contacts, Inc., 756 F.3d 542, 544 (7th Cir. 2014).
II.

Eighth Amendment Claims
The Eighth Amendment prohibits cruel and unusual punishment of convicted

persons, and safeguards inmates against pain and suffering that serves no penological
purpose. See U.S. Const., amend. VIII; Roe v. Elyea, 631 F.3d 843, 857 (7th Cir. 2011) (citing
Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Prison officials have a duty under the Eighth
Amendment “to protect prisoners from violence at the hands of other prisoners,” Farmer
v. Brennan, 511 U.S. 825, 833 (1994), and, by extension, correctional officers. “Omissions
can violate civil rights, and ‘under certain circumstances a state actor’s failure to intervene
renders him or her culpable under § 1983.’” Chavez v. Illinois State Police, 251 F.3d 612, 952953 (7th Cir. 2001) (quoting Yang v. Hardin, 37 F.3d 282, 285 (7th Cir. 1994)).
To succeed on claim for failure to protect, an inmate must first demonstrate she is
“incarcerated under conditions posing a substantial risk of serious harm.” Farmer, 511
U.S. at 834. Second, the inmate must show prison officials acted with deliberate
indifference to that risk, which requires a subjective inquiry into a prison official’s state
of mind. Farmer, 511 U.S. at 838-39. “[T]he official must both be aware of facts from which
the inference could be drawn that a substantial risk of serious harm exists, and he must
also draw the inference.” Id. at 837. A prisoner may demonstrate that prison officials were
aware of a specific, impending, and substantial threat to her safety “by showing that [s]he
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complained to prison officials about a specific threat to [her] safety.” Pope v. Shafer, 86
F.3d 90, 92 (7th Cir. 1996) (quoting McGill v. Duckworth, 944 F.2d 344, 349 (7th Cir. 1991)).
The prison official may be held liable only if s/he knows an inmate faces a substantial
risk of serious harm and “disregards that risk by failing to take reasonable measures to
abate it.” Farmer, 511 U.S. at 847. A plaintiff also “can establish exposure to a significantly
serious risk of harm by showing that [s]he belongs to an identifiable group of prisoners
who are frequently singled out for violent attack by other inmates.” Id. at 843 (quotation
omitted).
Hampton also claims that Varga and Kink subjected her to cruel and unusual
punishment by extending her confinement in segregation to approximately one year
despite her deteriorating mental health. Again, a claim for unconstitutional conditions of
confinement has two elements. McNeil v. Lane, 16 F.3d 123, 124 (7th Cir. 1993). First, the
prisoner must show that, objectively, the conditions deny the inmate “the minimal
civilized measure of life’s necessities,” creating an excessive risk to the inmate’s health or
safety. Farmer, 511 U.S. at 834; Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). Not all
prison conditions trigger Eighth Amendment scrutiny—only deprivations of basic
human needs like food, medical care, sanitation, and physical safety. Rhodes v. Chapman,
452 U.S. 337, 346 (1981). Second, from a subjective point of view, the inmate must
demonstrate that the defendants acted with a sufficiently culpable state of mind, namely,
deliberate indifference. McNeil, 16 F.3d at 124. Deliberate indifference exists only where
an official “knows of and disregards an excessive risk to inmate health or safety.” Farmer,
511 U.S. at 837-38. “‘Deliberate indifference’ means recklessness in a criminal, subjective
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sense: disregarding a risk of danger so substantial that knowledge of the danger can be
inferred.” James v. Milwaukee Cty., 956 F.2d 696, 700 (7th Cir. 1992). Negligence, even gross
negligence, does not constitute deliberate indifference. Garvin v. Armstrong, 236 F.3d 896,
898 (7th Cir. 2001).
To succeed on a claim for excessive force, an inmate must show that an assault by
a prison official was carried out ‘maliciously and sadistically’ rather than as part of ‘a
good-faith effort to maintain or restore discipline.’” Wilkins v. Gaddy, 559 U.S. 34, 40 (2010)
(citing Hudson v. McMillian, 503 U.S. 1, 6 (1992)); see also DeWalt v. Carter, 224 F.3d 607,
619 (7th Cir. 2000). Whether the force used is excessive depends on the circumstances.
Richman v. Sheahan, 512 F.3d 876, 883 (7th Cir. 2008). Several factors are relevant to this
determination: the extent of the injury, the need for force, the amount of force used, the
nature of the threat being addressed by the force, and efforts made to minimize the
severity of the force used, among others. Hudson, 503 U.S. at 7.
ANALYSIS
The motion and response illustrate a number of disputed factual issues material to
resolution of the claims. The Court will discuss the issues in the order presented by
Defendants in their motion.
I.

Excessive Force Claims against Doering and Kunde (Count III)
Defendants argue that Doering and Kunde’s deployment of pepper spray against

Hampton on June 26, 2018, did not violate her constitutional rights, because Hampton
was disobeying orders to cuff up and go to segregation, and officers sprayed her to induce
her compliance with those orders. (Doc. 156, pp. 15-17). Citing Soto v. Dickey, 744 F.2d
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1260 (7th Cir. 1984), they assert that the use of chemical agents to subdue recalcitrant
prisoners does not amount to cruel and unusual punishment, unless chemicals are used
in quantities greater than necessary or for the sole purpose of inflicting pain. They note
that Hampton cannot show that Kunde or Doering used excessive pepper spray against
her as several other officers were also spraying her.
Hampton counters that the evidence creates several genuine factual disputes
regarding whether the use of force violated the Eighth Amendment. (Doc. 163, pp. 27-31).
First, while Doering claims that Hampton refused his order to cuff up, Hampton testified
she did not remember any defendant giving her an order to cuff up before she was pepper
sprayed. She asked to see a PREA representative and for mental health support because
she felt suicidal. According to Hampton, Doering admitted she was seated calmly on a
chair, surrounded by at least four officers, and was non-threatening at the time Doering
sprayed her. Hampton said she was still seated at the time the officers forced her to the
floor, but Doering stated she had stood up and flailed her arms, lightly striking Doering
and Manzano before they took her down. It is undisputed that Kunde sprayed
Hampton’s face with pepper spray at the time she was pinned to the ground by three
officers. Kunde asserted Hampton was combative at the time, but Hampton claims she
offered no physical resistance; Doering testified he was able to cuff her hands within 510 seconds of placing Hampton on the ground.
The Court agrees that a material factual dispute exists as to whether Hampton was
actually noncompliant; a reasonable jury could find that she did not hear the order and
thus did not intentionally refuse to comply. Further, the facts reveal a dispute as to
18

whether force was necessary at all. A reasonable jury could conclude it was not.
Alternatively, a jury could find that the force used against Hampton—which consisted of
multiple applications of pepper spray followed by physically forcing her to the floor,
restraining her, and then spraying her again—was out of proportion to the need to secure
Hampton’s compliance and therefore excessive. See Hudson v. McMillian, 503 U.S. 1, 7
(1992); Richman v. Sheahan, 512 F.3d 876, 883 (7th Cir. 2008); Treats v. Morgan, 308 F.3d 467,
477-78 (8th Cir. 2002) (summary judgment not appropriate on excessive force claim for
use of pepper spray and physical takedown where inmate questioned an order and asked
to speak to a supervisor but otherwise posed no threat); Barrows v. Blackwell, No. 13-cv1483, 2016 WL 1122838, at *2, 6 (C.D. Ill. Mar. 22, 2016) (factual dispute as to whether
pepper spray was necessary precluded summary judgment).
Accordingly, summary judgment is not warranted on Count III. This claim will go
forward against Doering and Kunde for the incident at Dixon June 26, 2018, and against
Burley for the incident on February 18, 2018, at Lawrence.
II.

Deliberate Indifference Claims against Varga and Kink for Segregation Placement
(Count II)
The parties agree that Hampton was diagnosed with serious mental illness and

that Kink and Varga were aware of her diagnosis. The wardens also knew that Hampton
attempted suicide multiple times while she was held in segregation. Kink and Varga
argue that they cannot be found to be deliberately indifferent to the risk of Hampton’s
condition deteriorating while she remained in segregation, because they considered and
relied on the recommendations of mental health professionals each time they imposed

19

discipline, and because this process was approved by the court in Rasho v. Baldwin, Case
No. 07-cv-1298 (C.D. Ill.), the class action brought by seriously mentally ill prisoners
which resulted in a settlement. (Doc. 156, pp. 17-18).
Hampton points out that Defendants do not dispute the fact that they knew she
faced a substantial risk of serious harm as a mentally ill inmate held in lengthy
segregation, evidenced by her suicide attempts. (Doc. 163, pp. 32-33). As such, the salient
question is whether Kink and/or Varga acted or failed to act with deliberate indifference
to that risk of harm. Hampton notes that both Kink and Varga admitted they had the
discretion to remove her from segregation or reduce her punishment, but they instead
imposed additional segregation time. (Doc. 163, pp. 33-37).
Kink added three months to Hampton’s segregation time for allegedly exposing
her breasts when she was alone in her cell, when Hampton had already spent over nine
months in segregation. Kink later admitted the 3-month punishment was excessive.
(Doc. 163, p. 33).
Varga shortened the above three month segregation term to one month. But he
imposed a total of seven more months in segregation on four disciplinary tickets during
Hampton’s time at Dixon. Hampton notes that in each case, the range of punishment
recommended by a mental health professional included zero additional segregation
time, 8 as well as a recommendation against imposing lengthy segregation for SMI

On the ticket where Varga approved one month of segregation for the incident with inmate
Robinson, the mental health professional recommended a range of 0-6 weeks. (Doc. 163, p. 33).
Where Varga imposed three months for the pepper spray incident, the mental health
8

20

prisoners.
Hampton asserts that in authorizing the video surveillance on the yard, Varga
actively sought out ways to add to her punishment. He approved another two months in
segregation for the sexual acts caught on video in which Hampton maintains she was the
victim, where mental health recommended a punishment range of zero to 90 days.
(Doc. 163, p. 34). Hampton notes there is no evidence in the record that the mental health
professionals took into consideration the total time Hampton had already served in
segregation when making a recommendation on an appropriate range of punishment for
a particular disciplinary ticket. (Doc. 163, p. 36, n.4). Ultimately, the wardens had final
discretion to determine whether to impose additional segregation time and, if so, how
much.
Hampton counters the wardens’ argument that they followed the mental health
recommendations on segregation time. She asserts that Varga’s decision to impose
segregation time on the higher end of the recommended range was a deviation from the
medical professionals’ recommendation and a failure to heed the recommendation to
consider reduced segregation time and to avoid lengthy segregation for a mentally ill
inmate. (Doc. 163, p. 35). She further argues that to the extent the wardens complied with
the Rasho consent decree process, that compliance does not insulate them from liability if
they failed to mitigate the risk Hampton faced from having her segregation time
prolonged when her mental health had already significantly deteriorated. (Doc. 163,

recommendation had been for a range of 0-8 months and for consideration of reduced segregation
time. (Doc. 163, p. 34).

21

pp. 35-36).
In light of Hampton’s mental health condition, her suicide attempts, and the time
she had already spent in segregation, a genuine factual dispute exists on whether
increasing her segregation time amounted to deliberate indifference to her risk of
suffering further decline in her mental health. Based on the facts before the Court, a
reasonable jury could conclude that Varga and Kink were deliberately indifferent to a
serious risk of harm in imposing further segregation time in one or more of the
disciplinary cases. Summary judgment is not appropriate on this issue; Count II will
proceed.
III.

Failure to Protect Claim against Kink, Burley, Varga, Gee, Manzano, and
Blackburn (Count I)
With reference to the objective component of her failure to protect claim, Hampton

points out that not only did she raise specific complaints against numerous inmates who
threatened her safety, but her obvious feminine appearance and known identity as a
transgender woman in a men’s prison were sufficient to put Defendants on notice that
she faced a serious risk of harm from other inmates. (Doc. 163, p. 38). See Farmer v.
Brennan, 511 U.S. 825, 843 (1994) (inmate who belongs to an identifiable group that is
vulnerable to attack by other inmates can demonstrate risk of serious harm). The facts
demonstrate that Hampton was in fact threatened with serious harm by several inmates
and suffered physical and sexual assaults. She also was the target of verbal harassment
by prison officers based on her transgender status as well as frequent misgendering.
(Doc. 163, p. 39). Based on this evidence, a reasonable jury could conclude that

22

Hampton’s conditions of confinement exposed her to a substantial risk of serious harm.
Defendants’ arguments for summary judgment center on whether each individual was
deliberately indifferent to the need to protect Hampton from threats to her safety.
Defendants first argue that Burley is entitled to summary judgment because, while
Hampton alleges he used excessive force against her, she did not claim he failed to protect
her from anyone else. (Doc. 156, p. 20). Hampton responds that she indeed stated a failure
to protect claim against Burley in that he refused to allow her to go to her special cage in
the yard which would give her protection from other inmates, and he verbally abused
her based on her transgender status. (Doc. 156, pp. 40-41). A reasonable jury could
conclude Burley failed to protect Hampton based on these facts, thus summary judgment
is not warranted.
Gee is likewise not entitled to summary judgment on Count I. While Defendants
assert that Gee was present during the pepper spray incident on June 26,2018, but only
as an observer (Doc. 156, pp. 20-21), Hampton notes that Gee stood by without
intervening while other officers repeatedly pepper-sprayed her while she was pinned to
the ground. (Doc. 163, p. 44). Further, Gee refused to allow Hampton to speak with
mental health or PREA staff and never investigated Hampton’s report that Robinson had
sexually assaulted her. Id. This illustrates a material factual dispute which could result in
a reasonable jury finding against Gee on the failure to protect claim.
Defendants assert that Blackburn investigated Hampton’s PREA complaint
against inmate Prombo which resulted in his punishment with segregation, thus this
incident does not support Hampton’s claim that Blackburn failed to protect her.
23

(Doc. 156, p. 21). Further, Manzano investigated a PREA allegation of verbal abuse by
staff, and his investigation of the complaint demonstrated he took it seriously even
though he concluded it was unsubstantiated. Id. As to the June 26 incident that ended
with the deployment of pepper spray, Manzano had interviewed inmate Robinson after
he reported Hampton attacked him, and at the time Hampton had not yet reported the
incident or made a PREA complaint against Robinson for assaulting her. Defendants
argue that no evidence supports the failure to protect claim against Blackburn or
Manzano related to the events of June 26, 2018. (Doc. 156, pp. 21-23).
Hampton argues that while her allegations against inmate Prombo were
substantiated, Manzano’s first reaction when interviewing Hampton was to belittle her
complaint by asking her, “Don’t you want to be touched by a man?” indicating he did
not take her safety concerns seriously. (Doc. 163, p. 43). Hampton emphasizes that
Manzano and Blackburn were involved as members of the PREA Review Committee in
assessing not only the Prombo complaint, but also seven other PREA complaints (some
substantiated and others not)—yet by their own admission they never recommended any
action to improve Hampton’s safety or monitoring to protect her from future abuse.
(Doc. 163, pp. 40, 42-43). Like Defendant Gee, Manzano and Blackburn never investigated
Hampton’s sexual assault report against inmate Robinson and ignored her requests to
speak to mental health and PREA staff on June 26, 2018, instead taking her to segregation.
(Doc. 163, p. 44). Blackburn substantiated Hampton’s PREA complaint against inmates
Sims and Jackson (who coerced Hampton to perform sexual acts in order to get meals)
but then refused her request for a KSF order from them. In light of these facts, a
24

reasonable jury could conclude that Manzano and Blackburn were aware that Hampton
faced a substantial risk of harm as a transgender woman yet failed to take action to protect
her from future sexual assault, harassment, and threats of bodily harm. Summary
judgment in this instance is not warranted.
Wardens Kink and Varga argue that they removed specific threats to Hampton
when they became aware of them, thus they were not deliberately indifferent to the risks
she faced as a transgender woman. (Doc. 156, pp. 22-23). They further claim they took
steps to address the general risk of harm to Hampton as a transgender woman, including
impressing on subordinate staff the need to be civil and professional with transgender
inmates, and relying on security and investigative staff and mental health professionals
to address problems.
Kink asserts he had no role in Hampton’s exposure to inmate Sheif after the KSF
order was issued and only became aware of the incident after it occurred. He further
notes that Hampton had no more contact with Burley after the excessive force incident of
February 18, 2018. Hampton disputes Kink’s claims, noting that Kink was responsible for
ensuring PREA compliance which included making sure the KSF order against Sheif was
carried out by his staff after he approved the order and Sheif’s discipline. (Doc. 163,
pp. 41-42). She argues Kink failed to protect her from this specific known risk because
Kink did not educate his staff on the existence of the KSF order or how to enforce it, which
resulted in Sheif being placed in proximity to Hampton and threatening her again. When
Hampton filed a second complaint against Sheif, Kink made no changes to ensure her
safety. Hampton further points out that while Burley was transferred to another prison
25

two weeks after the incident on February 28, 2018, Kink did not discipline Burley for
beating Hampton, nor did Kink take any action to address Burley’s and other officers’
verbal harassment of Hampton. These factual assertions are sufficient for a reasonable
jury to find that Kink failed to take steps to protect Hampton from a serious risk of harm,
and preclude summary judgment in Kink’s favor on Count I.
Turning to Varga, he asserts that Hampton was abused by three inmates (Prombo,
Clemmons, and Robinson) while at Dixon (he makes no mention here of the five other
inmates who allegedly abused her there). (Doc. 156, pp. 22-23). He claims that Prombo
never harmed Hampton after she told Defendants about his groping and threats. Varga
states Hampton never told Defendants about Clemmons’s assaults, did not make a
complaint about Robinson until after he reported Hampton attacked him, and suffered
no further harm after Defendants were made aware of the incidents. (Doc. 156, p. 23).
Hampton disputes nearly every aspect of Varga’s assertions. (Doc. 163, pp. 44-47).
She notes that Varga was aware of Hampton’s substantiated PREA complaint against
Prombo yet had no issue with Prombo’s release from segregation after serving just a few
days of his punishment, while Hampton, his victim, remained in punitive segregation.
Contrary to Varga’s claim that Hampton was not again harmed by Prombo after the
incident, Hampton notes that Varga did not issue a KSF order between Hampton and
Prombo, which meant she was forced to see Prombo regularly, including contact with
him “close enough … to apologize” after her return to general population, causing her to
feel physically endangered and emotionally distraught. (Doc. 156, p. 22; Doc. 163, p. 45,
n. 5).
26

While Defendants state that Hampton did not complain to them about
Clemmons’s assaults and harassment, it is undisputed that she called the PREA hotline,
prompting Blackburn to investigate. He interviewed two witnesses who corroborated
Hampton’s claims, but he found her complaint unsubstantiated. Varga approved the
investigation report despite the witnesses’ corroboration and took no steps to protect
Hampton from future contact with Clemmons or from abuse by other inmates. (Doc. 163,
p. 45).
Following these incidents and Hampton’s altercation with inmate Robinson,
Varga authorized the video surveillance on Hampton in the segregation yard which
showed two inmates groping Hampton’s breasts and buttocks. Varga took no
disciplinary action against the officers who observed this but failed to intervene to stop
the behavior. Hampton’s PREA complaint against the inmates who groped her (Foreman
and Jones) was found unsubstantiated by Blackburn despite the video evidence; Varga
approved the report and punished Hampton for the incident. Hampton subsequently
filed PREA complaints against inmate Thomas for threatening to rape and kill her and
against inmates Sims and Jackson for extorting her to engage in sexual acts; the former
was found unsubstantiated, but the latter was substantiated by IA. Varga approved both
reports but took no action to protect Hampton. Additionally, Varga punished Hampton
for the incidents with Sims and Jackson even though she was the victim of their abuse.
(Doc. 163, pp. 45-46).
Hampton disputes Varga’s claim that he took steps to ensure his subordinates
treated transgender prisoners with respect, asserting he was aware of staff calling her
27

derogatory names and constantly misgendering her in written reports but took no action
to discourage this. (Doc. 163, p. 46). On June 19, 2018, Hampton’s counsel filed an
emergency grievance to Varga on her behalf which informed him of the incidents of
assault, harassment, and threats Hampton had endured from other inmates and from
Dixon officers, but Varga still took no action to address these safety concerns. (Doc. 163,
pp. 46-47). Taken together, this evidence could lead a reasonable jury to conclude that
Varga was deliberately indifferent to the need to protect Hampton from the risk of serious
harm she faced as a transgender woman at Dixon. Varga is not entitled to summary
judgment on this claim. Count I shall proceed against all Defendants.
IV.

Statute of Limitations as to Count I against Kink
Defendants argue that the two year statute of limitations bars Hampton’s failure

to protect claim against Kink because she raised this claim for the first time in her Second
Amended Complaint (Doc. 138), which was filed on April 16, 2020, more than two years
after Hampton was transferred away from Lawrence in March 2018. (Doc. 156, p. 23).
Hampton asserts that Defendants are incorrect because the claims in the Second
Amended Complaint relate back to the date of her original pleading (Doc. 1), which was
filed on March 8, 2018, and included a failure to protect claim against Kink in his official
capacity. (Doc. 163, p. 47).
The original Complaint sued Kink in his individual and official capacities (Doc. 1,
p. 4). Hampton asserted a failure to protect claim against Kink in his official capacity for
disregarding the known risk she faced from other prisoners and from staff as a
transgender woman in a men’s prison (Doc. 1, pp. 16, 18). At the time, she was still
28

incarcerated at Lawrence, where Kink was the warden. Hampton also included a claim
against Kink in his individual and official capacities for cruel and unusual punishment
related to her confinement in segregation (Doc. 1, pp. 19-20). Kink was served with the
Complaint on March 13, 2018 (Doc. 17).
The Court concludes that the failure to protect claim (Count I) in the Second
Amended Complaint relates back to the original Complaint because it “asserts a claim …
that arose out of the conduct, transaction, or occurrence set out … in the original
pleading[.]” FED. R. CIV. P. 15(c)(1)(B). The Second Amended Complaint merely added
the individual-capacity claim against Kink for failure to protect; he already faced an
official-capacity claim based on the same conduct. This claim against Kink is therefore
not barred by the statute of limitations.
V.

Qualified Immunity
When assessing whether a defendant is entitled to qualified immunity, the Court

must consider: “(1) whether the facts, taken in the light most favorable to the plaintiffs,
show that the defendants violated a constitutional right; and (2) whether that
constitutional right was clearly established at the time of the alleged violation.” Gonzalez
v. City of Elgin, 578 F.3d 526, 540 (7th Cir. 2009) (citing Pearson v. Callahan, 555 U.S. 223,
236 (2009), and Saucier v. Katz, 533 U.S. 194, 201 (2001)). Notably, “[w]hen the qualified
immunity inquiry cannot be disentangled from disputed facts, the issue cannot be
resolved without a trial.” Gonzalez, 578 F.3d at 540 (citing Clash v. Beatty, 77 F.3d 1045,
1048 (7th Cir. 1996)).
Defendants present a cursory argument that the Court would change current law
29

if it determines that “corrections officials may not use force to compel compliance with
lawful orders” or that they “may not rely on mental health professionals when making
mental health decisions,” and assert that no existing law put them on notice as to what
steps were required to protect Hampton and avoid a finding of deliberate indifference.
(Doc. 156, p. 24). Defendants oversimplify the issues in this case.
As discussed above, numerous facts are in dispute relevant to whether Defendants
violated Hampton’s constitutional rights, and the Court has already determined that a
jury could find in Hampton’s favor on these claims, precluding summary judgment. The
remaining question is whether the constitutional rights at issue, within the specific
circumstances of this case, were clearly established. Saucier, 533 U.S. at 201.
With regard to the claim of excessive force, it is undisputed that “[t]he notion that
unnecessary and wanton infliction of pain constitutes cruel and unusual punishment
forbidden by the Eighth Amendment is not a new or unusual constitutional principle.”
Hill v. Shelander, 992 F.2d 714, 718 (7th Cir. 1993). The question in this case is not whether
officers may use force to compel an inmate to comply with a proper order, but instead
whether the repeated application of pepper spray to Hampton both initially when she
claims she did not physically resist, 9 and again when she was incapacitated and
restrained on the floor, constituted an excessive use of force. If a jury were to believe that
the application of force was wholly disproportionate to the perceived threat and that
Defendants maliciously intended to cause harm, then no reasonable officer would believe

As previously noted, there is also a factual dispute on whether Hampton heard an order to cuff
up before pepper spray was deployed.
9

30

that his or her actions were lawful. See McCoy v. Alamu, 950 F.3d 226, 233–34 (5th Cir.
2020), cert. granted, judgment vacated, 141 S. Ct. 1364 (2021) (in light of Taylor v. Riojas, 141
S. Ct. 52, 52–54 (2020), vacating grant of qualified immunity to guard who used pepper
spray on an unresisting inmate). The subjective standard inherent in an excessive force
claim makes a finding of qualified immunity premature without an initial determination
of the facts and Defendants’ intent. Accordingly, Defendants are not entitled to qualified
immunity on this issue.
Similarly, allowing Hampton’s deliberate indifference claim to go forward against
the wardens who extended her segregation punishment despite evidence suggesting that
lengthy segregation was worsening her mental health condition does not amount to a
determination that prison officials “may not rely on mental health professionals when
making mental health decisions.” (See Doc. 156, p. 24). The Seventh Circuit has long
recognized that prolonged confinement in segregation can violate the Eighth
Amendment; whether a violation in fact occurred “depends on the duration and nature
of the segregation and the existence of feasible alternatives.” Walker v. Shansky, 28 F.3d
666, 673 (7th Cir. 1994); see also Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 666 (7th
Cir. 2012). It is for the jury to resolve the disputed questions of Defendants’ knowledge
and subjective intent relevant to this claim, as well as whether the wardens in fact “relied”
on mental health recommendations or disregarded them.
Finally, the law is clearly established that prison officials have a duty to protect
inmates from abuse by other prisoners or officers. See Gevas v. McLaughlin, 798 F.3d 475,
484 (7th Cir. 2015) (citing Farmer v. Brennan, 511 U.S. 825, 832-34 (1994)). Whether
31

Defendants took adequate steps to protect Hampton from sexual abuse in light of this
duty is another matter of factual dispute. Granting qualified immunity to Defendants
would require the Court to improperly resolve these disputed factual issues at the
summary judgment stage. See Mordi v. Ziegler, 770 F.3d 1161, 1164 (7th Cir. 2014).
Accordingly, Defendants are not entitled to qualified immunity.
VI.

Intentional Infliction of Emotional Distress (Count V) and Sovereign Immunity
Defendants argue that sovereign immunity bars Hampton’s state law claim for

intentional infliction of emotional distress. Under the Illinois State Lawsuit Immunity
Act, 745 Ill. Comp. Stat. 5/1, “the State of Illinois is immune from suit in any court, except
as provided in the Illinois Court of Claims Act, 705 Ill. Comp. Stat. 505/8 (and other
statutes not relevant here), which vests jurisdiction over state tort claims against the state
in the Illinois Court of Claims.” Richman v. Sheahan, 270 F.3d 430, 441 (7th Cir. 2001). A
claim against a state official or employee is a claim against the state when “‘(1) [there are]
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) ... the
complained-of actions involve matters ordinarily within that employee’s normal and
official functions of the State.’” Murphy v. Smith, 844 F.3d 653, 658 (7th Cir. 2016) (quoting
Healy v. Vaupel, 549 N.E.2d 1240, 1247 (Ill. 1990), quoting Robb v. Sutton, 498 N.E.2d 267,
272 (Ill. App. 1986)). There is, however, an exception to this rule: “Sovereign immunity
affords no protection when agents of the state have acted in violation of statutory or

32

constitutional law or in excess of their authority.” Leetaru v. Board of Trustees of University
of Illinois, 32 N.E.3d 583 (Ill. 2015); see also Murphy, 844 F.3d at 658-59.
Each of Hampton’s federal claims involve Defendants’ alleged violation of her
constitutional rights. If proven, the claims fall squarely within the exception to the
sovereign immunity bar. Accordingly, the intentional infliction of emotional distress
claim in Count V is not barred by sovereign immunity and will proceed.
CONCLUSION
For the above reasons, Defendants’ Motion for Partial Summary Judgment
(Doc. 155) is DENIED. A jury trial and final pretrial conference will be set by separate
order.
IT IS SO ORDERED.
DATED: June 23, 2021
_____________________________
NANCY J. ROSENSTENGEL
Chief U.S. District Judge

33