Opinion
Case No. 99 C 2866
September 18, 2000
Attorney for Plaintiff(s), John Robert Hieber, Attorney at Law, North Riverside, IL.
Attorney for Defendant, Richard John Siegel, Illinois Attorney General's Office 100 West Randolph Street 13th Floor, Chicago, IL., IDOC Chief of Legal Services, Illinois Department of Corrections, 100 West Randolph Street, Chicago, IL.
MEMORANDUM OPINION AND ORDER
Plaintiffs, Bryan Witt, Kenneth McSwine, Carlos Moore, Jerome Taylor, Calvin Blakley, and Alfred Dawson-Bey, inmates at Stateville Correctional Center, filed this suit under 42 U.S.C. § 1983 against Correctional Officer Aaron Andrew ("Andrew") Plaintiffs claim that Andrew discharged his shotgun without cause or provocation and injured them. Andrew filed a Motion to Dismiss Plaintiffs' Amended Complaint pursuant to FED. R. Civ. PRO. 12(b)(6) and the Prison Litigation Reform Act, 42 U.S.C. § 1997e(a). For the following reasons, Andrew's motion is granted in part and denied in part.
BACKGROUND
The following facts are gathered from Plaintiffs' Complaint, which the Court takes as true for purposes of this motion. Plaintiffs are inmates in the custody of the Illinois Department of Corrections at Stateville Correctional Center. Andrew is an armed correctional officer working as a guard at Stateville Correctional Center. At the relevant time, Andrew was stationed in "C House on a cat walk at or near 10 gallery." (Complaint, at ¶ 3).
At about 11:50 a.m. on May 8, 1997, Plaintiffs were standing on 10 gallery in C House when Andrew, who was armed and standing on a catwalk across from 10 gallery, "discharged [his] shotgun at or in the direction of the plaintiffs." (Compl., at ¶ 4). There was no disturbance on the 10 gallery at that time, and none of the Plaintiffs nor anyone near them was acting in a way that would give the defendant "cause to chamber a round and/or cock his shotgun and discharge it." (Compl., at ¶ 5). The Plaintiffs were "stuck with shotgun pellets" from Andrew's shotgun and suffered "pain and mental distress." (Compl., at ¶¶ 7, 8). Plaintiffs seek compensatory money damages, costs, attorney's fees, and other relief as the court deems just.
In his Motion to Dismiss, Andrew asserts the following basis for dismissal: Plaintiffs have failed to exhaust their administrative remedies, Plaintiffs have pled mutually exclusive allegations that require a more specific statement of facts, Count II belongs in the Court of Claims, and that he is entitled to qualified immunity.
DISCUSSION
When considering whether to dismiss a complaint for failure to state a claim upon which relief can be granted, the court takes the allegations in the complaint as true, viewing all facts as well as any inferences reasonably drawn from those facts in the light most favorable to the plaintiff. Bethlehem Steel Corp. v. Bush, 918 F.2d 1323, 1326 (7th Cir. 1990).
Andrew asserts that Plaintiffs have failed to exhaust their administrative remedies and that Plaintiffs have asserted mutually inconsistent allegations requiring a more specific statement of facts under Rule 12(e). In their Complaint, Plaintiffs allege both that they have "exhausted their administrative remedies" and that the "State of Illinois has no administrative remedy which redress[es] the wrong set forth herein." (Compl., at ¶¶ 9, 10).
In Perez v. Wisconsin Department of Corrections, 182 F.3d 532 (7th Cir. 1999), the Seventh Circuit held that § 1997e(a) of the Prison Litigation and Reform Act requires the pursuit of administrative remedies "no matter what relief the plaintiff seeks" and that prisoners cannot avoid the requirements of § 1997e(a) by limiting their demand to money. Id. at 537-38; 42 U.S.C. § 1997e(a). The Perez court, however, carved out an exception for cases where the complaint is based solely on past actions, and there is no possible administrative remedy. Id. at 538 ("It is possible to imagine cases in which the harm is done and no further administrative action could supply any 'remedy'").
Plaintiffs' allegations do not imply that they intend to seek any further medical attention for their injuries that could possibly affect the amount of damages requested, nor do they claim any ongoing injury that could be remedied by the grievance process. See Perez, 182 F.3d at 538 (the administrative process should precede litigation where the outcome of the administrative process "could affect the quantum of damages available.") And while Andrew correctly cites Perez for the proposition that just because the state does not have the specific remedy that a plaintiff requests does not allow a prisoner to evade the exhaustion requirement, this statement ignores the exception in Perez for cases where the state has no remedy whatsoever for the plaintiff. Thus, Plaintiffs' Complaint appears to fall under the category of complaints that are exempt from the exhaustion requirement. Therefore, Andrew's motion to dismiss for failure to exhaust administrative remedies is denied. Because the Court denies Defendant's motion on these grounds, it is unnecessary to resolve the issue on whether Plaintiffs' allegations were inconsistent and require a more specific statement of facts under Rule 12(e).
Next, Andrew argues that Count II of the Complaint properly belongs in the Illinois Court of Claims. In Count II, Plaintiffs allege that Andrew owed a duty to Plaintiffs "to act in a reasonable and prudent manner in discharging his shot gun so as not to injure and/or wound innocent bystanders," that Andrew violated that duty by "discharg[ing] a shot gun in utter disregard for the safety of others," and that this action inflicted "physical injury and pain" upon the Plaintiffs constituting cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments to the Constitution. (Compl., at Count II, ¶ 8). In his motion, Andrew asserts that this is a claim that "sounds in negligence" against a state official acting in the scope of his employment, and that Plaintiffs have added a constitutional claim as a "vehicle to get the true claim . . . into Federal court and out of the Illinois Court of Claims." (Motion to Dismiss, at § III C; Reply, at § B).
Regarding these somewhat disjointed allegations, the Court notes that on a motion to dismiss it must give Plaintiffs' allegations their broadest reading, and that the Federal Rules allow Plaintiffs to plead in the alternative. FED. R. Civ. PRO. 8(a). To the extent that Plaintiffs attempt to claim that the alleged negligence constitutes a violation of the Eighth Amendment, the Court notes that negligence is plainly insufficient to state a claim for cruel and unusual punishment. See Whitley, 475 U.S. at 319 ("It is obduracy and wantonness, not inadvertence or error in good faith, that characterize the conduct prohibited by the Cruel and Unusual Punishment Clause"). To the extent that Plaintiffs have alleged a negligence claim, the Court will analyze the claim to determine whether the Illinois Court of Claims has exclusive jurisdiction over this claim.
The Illinois Court of Claims has exclusive jurisdiction over "[a]ll claims against the State for damages in cases sounding in tort." 705 ILCS 505/8(d). Suits against individuals "who act within the scope of their employment are deemed to be suits against the state" and are actionable only in the Court of Claims. Benning v. Board of Regents of Regency Univs., 928 F.2d 775, 779 (7th Cir. 1991). Where a charged act of negligence "arose out of the state employee's breach of a duty that is imposed on him solely by virtue of his state employment, sovereign immunity will bar maintenance of the action" in any court other than the Court of Claims. Currie v. Lao, 148 Ill.2d 151, 159, 592 N.E.2d 977, 980 (Ill. 1992). Acts performed by state agents within the scope of their official duties are regarded as acts of the state where (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 complaint of action involves matters ordinarily within that employee's normal and official functions of the state. Benning, 928 F.2d at 779, citing Robb v. Sutton, 147 Ill. App.3d 710, 716, 498 N.E.2d 267 (4th Dist. 1986).
Giving Count II its broadest reading, Plaintiffs allege that Andrew, in some negligent manner, discharged his shotgun and injured Plaintiffs. The Court cannot imagine any set of conceivable facts where Andrew's negligent discharge of his shotgun while he was on duty as an armed guard in the prison could be considered outside the scope of the duties imposed upon him by his state employment. He had a duty to the inmates and was stationed at that location solely by virtue of his employment. See Magdziak v. Byrd, 96 F.3d 1045, 1049 (7th Cir. 1996) (finding that state police officer who killed third-party during a high speed chase was performing a function that arose solely as a result of the officer's employment by the state). Compare Currie, 148 Ill.2d at 162 (finding that defendant was not performing a "uniquely governmental function" at critical time, thus claim was not barred by sovereign immunity). Therefore, the Illinois Court of Claims has exclusive jurisdiction over this claim, and this Court dismisses it for lack of subject-matter jurisdiction. See Magdziak, 96 F.3d at 1049.
Andrew also asserts the defense of qualified immunity. Qualified immunity shields state actors from monetary damages resulting from liability for constitutional violations if their conduct does not violate "clearly established constitutional rights of which a reasonable person should have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). To determine whether a defendant is entitled to qualified immunity, the court must undergo a two-step analysis. First, the court must determine whether the complaint states a cause of action for a constitutional violation. Second, if the complaint does state a cause of action, the court must determine whether the constitutional rights were clearly established when the alleged violation occurred. Kitzman-Kelley v. Warner, 203 F.3d 454, 457 (7th Cir. 2000), citing County of Sacramento v. Lewis, 523 U.S. 833 (1998). If the constitutional rights were clearly established, qualified immunity is not applicable. When considering a motion to dismiss a complaint on the basis of qualified immunity, the court must accept all allegations in the complaint as true, construing them in the light most favorable to the plaintiff. Kitzman-Kelley, 203 F.3d at 456.
To State a claim under § 1983, a plaintiff must allege (1) that the defendant has acted under the color of state law and (2) that the defendant has deprived him of a right secured by the Constitution or laws of the United States. Kitzman-Kelley, 203 F.3d at 457.
In the instant case, Plaintiffs have alleged that Andrew acted under the color of state law and that Andrew violated their Eighth Amendment rights. The Eighth Amendment forbids the wanton and unnecessary infliction of pain upon prisoners. Whitley v. Albers, 475 U.S. 312, 319 (1986). When a prison official is charged with using excessive force against an inmate, the court must determine whether plaintiffs have alleged that the official maliciously and sadistically applied force to cause harm to the inmate. Id. at 319-320. While Plaintiffs have provided very few facts surrounding the events at issue, Plaintiffs have alleged that Andrews discharged his shotgun without "cause or provocation" and with "no act being done by any of the plaintiffs," that the Plaintiffs were "stuck with shotgun pellets from the shotgun," that Andrew shot them "intentionally, willfully and maliciously," and that they "suffered wounds to their bodies." (Compl., at ¶¶ 1, 5, 7).
Andrew disagrees and claims the force used was "in good faith and [in] furtherance of lawful objectives," and that it was applied in a "good faith effort to restore or maintain discipline rather than applied maliciously and sadistically in an attempt to cause harm." (Motion, at § D). Although a more fully developed record may support Andrew's assertions, the Plaintiffs' Complaint states that there was "no disturbance . . . and no act being done by any of the plaintiffs or anyone at or near them." (Compl., at ¶ 5). Because the Court must accept the Plaintiffs' allegations as true, at this early state Plaintiffs have alleged an Eighth Amendment claim.
State officials performing discretionary acts enjoy qualified immunity when their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known about at the time the incident occurred. Harlow, 457 U.S. at 818. Longstanding case law, however, has "clearly established" that prison officials may not use excessive and unprovoked force against inmates. Hudson v. McMillian, 503 U.S. 1, 9 (1992). Assuming that Plaintiffs' account of the events is true, Andrew cannot, at this time, invoke the defense of qualified immunity.
CONCLUSION
Therefore, for the foregoin reasons, Defendant's Motion to Dismiss is granted in part and denied in part. Count II is dismissed for lack of subject-matter jurisdiction.
IT IS SO ORDERED.