Joseph Sorrentino v. Salvador Godinez

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 13-3421

JOSEPH SORRENTINO and LABRON C.

NEAL, on their own behalf and on behalf

of all similarly situated people,

Plaintiffs-Appellants,

v.

SALVADOR A. GODINEZ, Director of the

Illinois Department of Corrections,

Defendant-Appellee.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 12 C 6757 — Thomas M. Durkin, Judge.

____________________

ARGUED SEPTEMBER 10, 2014 — DECIDED JANUARY 23, 2015

____________________

Before WOOD, Chief Judge, and EASTERBROOK and TINDER,

Circuit Judges.

WOOD, Chief Judge. Joseph Sorrentino and Labron C.

Neal are inmates at Illinois’s Stateville Correctional Center.

They purchased several items from Stateville’s commissary,

but the prison later forbade inmates to possess those items in

2 No. 13-3421

their cells. Sorrentino and Neal were among those whose

property was removed, as the new rule required. They re-

sponded by filing a proposed class action in the district

court, alleging that the confiscation of their property was an

unconstitutional taking and a breach of contract. We con-

clude that the district court was correct to dismiss the action,

though the dismissal should have been without prejudice.

I

The district court concluded that Sorrentino and Neal

failed to state a claim upon which relief can be granted and

thus that dismissal with prejudice was appropriate. See FED.

R. CIV. P. 12(b)(6). It took no action on class certification. Our

fresh assessment of the case relies on the facts that they set

forth in their complaint, including all reasonable inferences

in their favor. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081

(7th Cir. 2008). Our review is de novo. Alam v. Miller Brewing

Co., 709 F.3d 662, 665 (7th Cir. 2013).

Our two plaintiffs purchased goods from Stateville’s

commissary throughout 2011 and 2012. Around May 25,

2011, Neal purchased a fan and signed a “personal property

contract,” which obligated him to follow all Department of

Corrections (DOC) rules related to use, ownership, and pos-

session of the fan. Sorrentino purchased a typewriter on No-

vember 29, 2011, and a fan on March 27, 2012. He also signed

a personal property contract for his fan.

At the time Neal and Sorrentino made their purchases,

Stateville allowed inmates to keep typewriters and multiple

fans in their cells. It changed the fan policy in July 2012, and

memorialized that action in a bulletin that Warden Marcus

Hardy issued on July 17, 2012. The bulletin announced that

No. 13-3421 3

henceforth inmates were prohibited from possessing more

than one fan in their cells. On July 23, 2012, Hardy issued a

similar bulletin altogether prohibiting typewriters in cells.

The new policy offered several options for inmates who

owned the newly prohibited types of property. Inmates with

typewriters could have them destroyed; give them to visi-

tors; ship them to someone outside the prison at no cost;

store them in “offender personal property,” which is re-

turned to inmates upon release from prison; or donate them

to the prison library. Extra fans were simply placed in stor-

age as “offender personal property.”

Prison officials removed both plaintiffs’ fans on July 16,

2012, and Sorrentino’s typewriter sometime after July 23,

2012. The fans are currently in storage, and Sorrentino’s

typewriter is in the prison library. Although the complaint

and briefs did not clearly indicate that Sorrentino voluntarily

gave the typewriter to the library, at oral argument counsel

stated that he opted to donate it (given his restricted range of

choice).

Some time later, Sorrentino and Neal filed this suit, on

behalf of themselves and an alleged class. (Unless the con-

text requires otherwise, we will refer only to Sorrentino in

the remainder of this opinion, for the sake of simplicity. The

district court took no action on the class allegations and they

are not mentioned on appeal; we thus do not discuss that

aspect of the case.) The complaint alleged violations of the

Takings and Contracts Clauses of the Constitution as well as

a breach of contract; plaintiffs sought monetary, declaratory,

and injunctive relief. After Director Godinez filed a motion

to dismiss, Sorrentino withdrew the claim for breach of con-

tract to the extent it sought damages. The district court then

4 No. 13-3421

dismissed the entire action, finding that the Eleventh

Amendment barred claims for money damages against

Godinez and that the complaint failed to state a Takings

Clause, Contracts Clause, or breach of contract claim. At this

point, Sorrentino has abandoned the Contracts Clause claim

and all claims for damages. We are thus left with the indi-

vidual claims for injunctive and declaratory relief for the al-

leged takings and breaches of contract. The plaintiffs are

pursuing those claims only against Godinez, and only in his

official capacity (apparently on the theory that the Director

of the Department of Corrections is the person with the au-

thority to change the policy).

II

A

We consider first the claim that Stateville’s revised policy

effected a “taking” of Sorrentino’s property. The Takings

Clause of the Fifth Amendment (applicable to the states

through the Fourteenth Amendment) states: “nor shall pri-

vate property be taken for public use, without just compen-

sation.” U.S. CONST. amend. V. This provision “does not pro-

scribe the taking of property; it proscribes taking without

just compensation.” Williamson Cnty. Reg'l Planning Comm'n

v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985). Nor

does the clause require a state to pay compensation prior to

or at the same time as a taking. Id. Therefore, “if a State pro-

vides an adequate procedure for seeking just compensation,

the property owner cannot claim a violation of the Just

Compensation Clause until it has used the procedure and

been denied just compensation.” Id. at 195.

No. 13-3421 5

The latter rule is what dooms Sorrentino’s claims. Illinois

provides such a procedure, but he has not tried to use it.

Even when no Illinois constitutional provision or statute

provides a remedy for a particular taking, “the common law,

which affords a remedy for every wrong, will furnish the

appropriate action for the redress of such grievance.” Roe v.

Cook Cnty., 193 N.E. 472, 473 (Ill. 1934). Illinois courts distin-

guish between a true taking, which requires a physical tak-

ing of property for public use, and an action that damages

property in some way, such as through restrictions on ac-

cess. See Patzner v. Baise, 552 N.E.2d 714, 717 (Ill. 1990); Gran-

ite City Moose Lodge No. 272 v. Kramer, 449 N.E.2d 852, 855

(Ill. 1983). Illinois circuit courts have authority to hear true

takings claims, which if proven, result in a writ of manda-

mus ordering the government to institute eminent domain

proceedings. See Patzner, 552 N.E.2d at 717. The Illinois

Court of Claims has exclusive jurisdiction over suits assert-

ing damages to property. See id.

The distinction between a taking and a “damaging” (as

the Illinois courts dub it) is sometimes unclear. See John

Martinez, A Proposal for Establishing Specialized Federal and

State "Takings Courts," 61 ME. L. REV. 467, 482 (2009) (dis-

cussing the Illinois Court of Claims and noting “the indis-

tinct line between the jurisdiction of a state’s court of claims

and circuit court in takings cases”). Sorrentino describes

Godinez’s actions as a “damaging.” This characterization

seems sensible: the DOC bulletins limited his access to and

enjoyment of his fan and typewriter but did not completely

extinguish his rights in his property. The broader point,

however, is that some Illinois forum is available; nothing in

federal law requires the state to send these cases to one tri-

6 No. 13-3421

bunal versus another. If the confiscation of Sorrentino’s

property is a true taking, he may pursue his claim in the ap-

propriate Illinois circuit court. If it is a damaging, state law

directs him to the Illinois Court of Claims. Neither Sorrenti-

no nor Neal has explored either of these avenues under Illi-

nois law and given the state a chance to provide compensa-

tion. The takings claims are thus not ripe. See Williamson, 473

U.S. at 194–95.

Sorrentino tries to avoid this outcome with a futility ar-

gument: the Illinois procedures are functionally nonexistent,

he charges, because the Court of Claims lacks the power to

grant the equitable relief he wants. A plaintiff need not avail

himself of state procedures if those procedures are futile,

meaning inadequate or unavailable. See Daniels v. Area Plan

Comm'n of Allen Cnty., 306 F.3d 445, 456 (7th Cir. 2002). Sor-

rentino urges us to find futility here and to allow him to pre-

sent his claim in federal court without turning first to the

state courts. But his argument does not hold together. Even

if he is correct that the Court of Claims is the proper court

and that it cannot grant equitable relief, see Garimella v. Bd. of

Trustees of Univ. of Ill., 50 Ill. Ct. Cl. 350, 353 (1996) (conclud-

ing that the Court of Claims cannot grant equitable relief but

citing Illinois cases that imply the opposite), that limitation

does not automatically mean that he may seek an injunction

in a different court. He and Neal complain of a taking, and

the normal remedy for a taking is monetary relief, which the

Illinois Court of Claims can provide. See Peters v. Vill. of Clif-

ton, 498 F.3d 727, 732 (7th Cir. 2007) (noting the “strong pre-

sumption that damages, not injunctive relief, is the appro-

priate remedy in a Takings Clause action”).

No. 13-3421 7

The question thus becomes whether Sorrentino has pre-

sented the kind of case in which equitable relief may be

available for a takings claim. We have identified only two

such situations: “when the government has taken property

for a private, rather than a public, use” and when a “facial

challenge[] to legislative action authorizing a taking” is pos-

sible. Id. Neither exception is applicable here. Whatever

“taking” occurred with respect to the typewriter and fans at

issue here was not for private use. Furthermore, Sorrentino

has not mounted a facial challenge of the kind we contem-

plated in Peters. There, we relied on San Remo Hotel, L.P. v.

City & Cnty. of San Francisco, 545 U.S. 323 (2005) and Yee v.

City of Escondido, 503 U.S. 519 (1992). In those cases, the

plaintiffs alleged that the relevant regulation did not sub-

stantially advance a legitimate state interest regardless of

how it was applied. See San Remo Hotel, L.P., 545 U.S. at 345;

Yee, 503 U.S. at 534. Sorrentino has not made such an argu-

ment against the Stateville bulletins, and it is hard to see

how he could, given the important state interest of safety in

prisons. He and Neal thus are not exempt from Williamson’s

ripeness requirement just because Illinois may require them

to file their claim in a court that cannot grant equitable relief.

Because the plaintiffs filed their takings claim in federal

court before seeking compensation in an Illinois tribunal, we

affirm the district court’s dismissal of the claim. The dismis-

sal, however, should have been without prejudice, so that

they may avail themselves of whatever procedures may still

be available under Illinois law.

8 No. 13-3421

B

Sorrentino also asserts that Director Godinez breached an

implied-in-fact contract formed at the time of each purchase

from the Stateville commissary. (He no longer relies on the

“personal property contracts” that he signed as the basis of

his breach of contract claim, as he did earlier in this suit.) He

argues that the terms of these alleged contracts prohibited

the state from altering the policies regarding the possession

of fans and typewriters in inmate cells in force at the time.

We need not wade into the merits of this state-law claim.

It appears not to be one that could be heard in a state court

of general jurisdiction, because the State Lawsuit Immunity

Act grants immunity to the state from suit “in any court”

and provides for specifically defined exceptions to that im-

munity. See 745 ILL. COMP. STAT. ANN. 5/1. Nevertheless, the

state Court of Claims remains available for “[a]ll claims

against the State founded upon any contract entered into

with the State of Illinois.” 705 ILL. COMP. STAT. ANN. 505/8(b).

A person with a claim against Illinois based on a contract

with the state must bring suit in the Illinois Court of Claims,

rather than in the relevant Illinois circuit court or federal dis-

trict court. See Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009)

(finding that 745 ILCS 5/1’s stipulation that tort actions

against Illinois must be brought in the Court of Claims

means that Illinois is immune from such claims in federal

court). We note for the sake of completeness that such a

claim may not be heard in federal court, regardless of the

state’s limitations on its own tribunals, because federal

courts may not entertain suits against states based on state

No. 13-3421 9

law. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.

89, 106 (1984).

Sorrentino and Neal sued Director Godinez rather than

Illinois, but this distinction is irrelevant. Sovereign immunity

normally does not bar suits for injunctive relief in federal

court alleging that a state official violated the federal consti-

tution or laws. See Ex Parte Young, 209 U.S. 123 (1908). But

the plaintiffs are not asserting such a claim. Sorrentino

claims only that the Director (acting for the state) breached a

contract. The State Lawsuit Immunity Act forbids state-law

suits outside of the Court of Claims that allege that the offi-

cial merely “exceeded his authority by breaching a contract.”

Smith v. Jones, 497 N.E.2d 738, 740–41 (Ill. 1986). Sovereign

immunity and Pennhurst thus bar this claim in federal court,

and the district court was correct to dismiss it. Once again,

however, the dismissal should have been without prejudice.

See Murray v. Conseco, Inc., 467 F.3d 602, 605 (7th Cir. 2006).

III

We AFFIRM the district court’s dismissal of Sorrentino and

Neal’s Takings Clause and breach of contract claims. The

judgment is modified, however, to be one without prejudice.

While they may not refile this action in federal court, Sorren-

tino and Neal may seek to pursue their claims in the appro-

priate Illinois forum.