Cowper v. Nyberg

2015 IL 117811

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 117811)

DeANGELO M. COWPER, Appellee, v. RANDY NYBERG et al., Appellants.

Opinion filed March 19, 2015.

JUSTICE THOMAS delivered the judgment of the court, with opinion.

Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and

Theis concurred in the judgment and opinion.

OPINION

¶1 At issue is whether plaintiff stated a cause of action for negligence against the

circuit court clerk and the sheriff, when the number of days plaintiff had been in

custody and for which he was to receive credit against his sentence were calculated

incorrectly, resulting in him being wrongfully incarcerated for over four months.

¶2 BACKGROUND

¶3 Plaintiff, DeAngelo Cowper, was the named defendant in Saline County circuit

court case No. 2003-CF-323. On May 12, 2011, plaintiff pleaded guilty and was

sentenced to 27 months’ imprisonment. The sentencing judgment entered on June

1, 2011, provided that plaintiff was to receive 275 days’ credit for time served.

Plaintiff was transported to the Department of Corrections on June 2, 2011.

¶4 The record is silent on how plaintiff learned that his sentencing credits were

calculated incorrectly, but on June 23, 2011, plaintiff filed a “Motion to Recalculate

Time Served.” On October 16, 2011, plaintiff was released from the Department of

Corrections. On November 22, 2011, the State responded to defendant’s motion.

The State conceded in its response that defendant had not been given credit for time

served between January 8, 2008, and February 2, 2008, and between November 29,

2010, and May 11, 2011. The State thus agreed with plaintiff that he should have

received credit for those days. On the same day that the State filed its response, the

circuit court of Saline County entered an order granting defendant the additional

credits and asking the State to prepare an amended mittimus. The court then entered

an amended judgment that included all of the good time credits that plaintiff should

have received.

¶5 On January 20, 2012, plaintiff filed a two-count complaint against Keith

Brown, the sheriff of Saline County, and Randy Nyberg, the Saline County circuit

clerk. Each count was titled “Negligence,” with count I directed against the clerk

and count II against the sheriff. The basis of the duty alleged to have been breached

by each is found in section 5-4-1(e)(4) of the Unified Code of Corrections (730

ILCS 5/5-4-1(e)(4) (West 2012)), which provides as follows:

“(e) The clerk of the court shall transmit to the department, agency or

institution, if any, to which the defendant is committed, the following:

***

(4) the number of days, if any, which the defendant has been in custody

and for which he is entitled to credit against the sentence, which

information shall be provided to the clerk by the sheriff[.]”

Plaintiff alleged that, because either the sheriff or the clerk transmitted the incorrect

number of days he had been in custody, he ended up erroneously incarcerated for

137 days. Plaintiff had sufficient credits that he should not have spent any time in

the Department of Corrections. Plaintiff alleged that as a direct and proximate

cause of defendants’ negligence, plaintiff suffered a loss of freedom, a loss of

normal life, a loss of employment, a loss of ability to seek additional employment

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opportunities, and was unable to care for or to be with his family. Plaintiff asked for

damages in excess of $50,000.

¶6 Defendants filed a section 2-615 (735 ILCS 5/2-615 (West 2012)) motion to

dismiss. Defendants argued that plaintiff had not properly alleged any duty that had

been breached by defendants. Defendants contended that there was no authority

that section 5-4-1(e)(4) provides a private cause of action for its violation. Plaintiff

filed a memorandum of law in response. Plaintiff argued that section 5-4-1(e)(4)

imposed a ministerial duty on defendants, and that he had properly pleaded a

breach of this ministerial duty. Plaintiff cited case law establishing that a breach of

a ministerial duty prescribed by statute can support a negligence action.

¶7 The circuit court of Saline County granted the motion to dismiss. With respect

to the clerk, the court found that the complaint did not allege a duty that the clerk

had breached. The court noted that the statute merely required the clerk to forward

the information he or she receives from the sheriff, and there was no allegation in

the complaint that the clerk had failed to do so. With respect to the sheriff, the court

found that the statute did not expressly grant a private right of action. The court

then applied the four-part test set forth in Noyola v. Board of Education of the City

of Chicago, 179 Ill. 2d 121 (1997), and determined that no private right of action

could be implied in the statute, either. In particular, the court found that the statute

was a criminal sentencing statute and that plaintiff was not in the class of persons

for whose benefit the statute was designed. Moreover, the court found that plaintiff

had a remedy through the normal processes for criminal cases. Plaintiff filed a

motion to reconsider, in which he argued, inter alia, that the cause of action he had

pleaded was negligence, and the court failed to consider the case law he had

provided establishing that a cause of action exists for the negligent performance of

a ministerial duty.

¶8 Plaintiff appealed, and the Appellate Court, Fifth District, reversed. 2014 IL

App (5th) 120415. As had the trial court, the appellate court focused primarily on

whether or not a private right of action is implied in the statute, even though the

plaintiff had pleaded common law negligence rather than a statutory cause of

action. The court applied the four-part Noyola test for implying a private right of

action under a statute and concluded that plaintiff had satisfied all four parts. The

court first looked at the purposes section of the Unified Code of Corrections (730

ILCS 5/1-1-2(c), (d) (West 2010)), and determined that plaintiff was in the class of

persons for whom the statute was enacted. 2014 IL App (5th) 120415, ¶ 18. The

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court next determined that implying a private cause of action was consistent with

the Code’s purpose to rehabilitate the offender and restore him to useful

citizenship. Id. ¶¶ 19, 20. Third, the court held that plaintiff’s injury of being held

beyond his proper release date is one that the legislation was designed to prevent.

The court explained that “prevention of this type of injury is consistent with the

stated statutory goals of preventing arbitrary and oppressive treatment and

returning offenders to useful citizenship.” Id. ¶ 21. Finally, the court determined

that implying a private cause of action was necessary to provide an adequate

remedy for violations of the statute. The court explained that plaintiff had no

administrative remedy against the Department of Corrections because the

Department was obligated to follow the court’s sentencing order. Id. ¶¶ 22, 23, 24.

The court also held that plaintiff did not have a common law negligence action. The

court explained that violation of a statute designed to protect human life or property

is prima facie evidence of negligence, but found that this statute was not a safety

statute. Id. ¶ 26. Nor did plaintiff have a constitutional claim, because federal case

law establishes that incarcerating a prisoner beyond his legal release date does not

implicate the eighth amendment unless it is the product of deliberate indifference.

Id. ¶ 27. The court did note that plaintiff had successfully moved for a recalculation

of his good time credits, but pointed out that the motion had gone unaddressed for

several months. Accordingly, the court held that plaintiff could only be made whole

through compensatory damages. Id. ¶ 29. The court stated that the trial court had

erred in “granting the dismissal of Cowper’s statutory claim” (id. ¶ 33), even

though plaintiff had not pleaded a statutory claim.

¶9 We allowed defendants’ petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July

1, 2013).

¶ 10 ANALYSIS

¶ 11 Defendants raise two issues on appeal. First, defendants contend that plaintiff

failed to allege any breach of a duty by the clerk, as the statute merely requires the

clerk to transmit information received by him from the sheriff. Second, defendants

contend that the complaint failed to state a cause of action because no private right

of action is implied under section 5-4-1(e)(4). We find that the second question is

not properly before the court, as plaintiff did not assert a statutory cause of action in

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his complaint. Rather, we will consider whether plaintiff stated a cause of action for

negligence, which is what he pleaded.

¶ 12 This appeal arises from the dismissal of a complaint pursuant to section 2-615

of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). A section 2-615

motion to dismiss tests the legal sufficiency of the complaint. On review, the

question presented is whether the allegations of the complaint, when taken as true

and viewed in a light most favorable to the plaintiff, are sufficient to state a cause of

action upon which relief can be granted. Turner v. Memorial Medical Center, 233

Ill. 2d 494, 499 (2009). All facts apparent from the face of the pleadings, including

the exhibits attached thereto, may be considered. Haddick v. Valor Insurance, 198

Ill. 2d 409, 414 (2001). A cause of action should not be dismissed under section

2-615 unless it is clearly apparent that no set of facts can be proved that would

entitle the plaintiff to recovery. Marshall v. Burger King Corp., 222 Ill. 2d 422, 429

(2006). The standard of review is de novo. Id.

¶ 13 Generally, to plead a cause of action for negligence, a plaintiff must plead that

the defendant owed a duty of care to the plaintiff, that the defendant breached that

duty, and that the breach was the proximate cause of the plaintiff’s injuries.

Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d

110, 116 (1995). A black letter statement of the specific rule that plaintiff relies on

in support of his cause of action against the clerk may be found in 15A Am. Jur. 2d

Clerks of Court § 55:

“As a public administrative officer or ministerial officer, a court clerk is

answerable for any act of negligence or misconduct in office resulting in an

injury to the complaining party, or a violation of applicable standards of

professional conduct, in the absence of immunity.

To render the clerk of a court and the sureties on the clerk’s official bond

liable for the clerk’s misfeasance, the complaining party must show a duty on

the part of the clerk, a breach of the duty, and consequent damage to the

complainant, meeting the normal standards of direct and proximate cause.”

In Mallder v. Rasmussen, 145 Ill. App. 3d 809, 812 (1986), a case involving a suit

against a deputy sheriff, the court explained that “liability is not regularly imposed

upon public officials for the negligent performance of discretionary acts, whereas

the exercise of ministerial tasks entails a duty of reasonable care to those whose

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injury as a result of the negligent performance of that duty is foreseeable.”

(Emphasis added.)

¶ 14 Plaintiff relies primarily on Harms v. Bierman, 361 Ill. App. 3d 250 (2005). In

Harms, the plaintiff spent five hours in custody after being arrested on a body

attachment that had been vacated. Plaintiff filed a complaint against the circuit

clerk, alleging negligence. The trial court ultimately determined that the clerk had a

duty to notify the sheriff when a body attachment has been quashed or vacated, that

this was logically part of the clerk’s statutory duty to record proceedings of court,

and therefore the clerk was liable. The court thus awarded the plaintiff $3,500 in

damages on his negligence claim against the clerk. Id. at 252. The appellate court

reversed, on the basis that the clerk did not have a duty to ensure that the vacation of

a body attachment is removed from the sheriff’s records. Id. at 255-56. Because the

court could not find any statute or rule specifically imposing such a requirement on

the clerk, it held that the clerk, whose position is ministerial, did not have such a

duty. Id. at 255. As an example of a statute that imposes a duty on the clerk, the

court quoted section 14 of the Clerks of Courts Act (705 ILCS 105/14 (West

2002)), which provides:

“ ‘Immediately after a judgment of dissolution of marriage or declaration of

invalidity of marriage is granted in this State, the clerk of the court which

granted the judgment of dissolution of marriage or declaration of invalidity of

marriage shall complete and sign the form furnished by the Department of

Public Health, and forward such form to the Department of Public Health

within 45 days after the close of the month in which the judgment is

rendered.’ ” Harms, 361 Ill. App. 3d at 255-56.

The court clarified that there was no doubt that the legislature could impose a duty

on the clerk to ensure that vacations of body attachments were removed from the

sheriff’s records, but it could find no evidence that the legislature had done so. Id. at

256. Plaintiff argues that section 5-4-1(e)(4) is precisely the type of statute that the

Harms court said would impose a duty on the clerk, the breach of which could

support a negligence action.

¶ 15 This court itself has long recognized that court clerks may be held liable for

breaches of ministerial duties. In Governor v. Dodd, 81 Ill. 162 (1876), this court

held that the clerk could be held liable for nonfeasance—failure to perform an

official duty—as well as misfeasance or malfeasance. This court explained that

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such a rule is necessary because, if the clerk “may omit one duty without liability,

why may he not omit all with impunity?” Id. at 164. The court explained that

sheriffs and other ministerial officers are held liable for nonfeasance of duty, and

there is no reason why the rule should be different for court clerks:

“[S]heriffs, constables, and other ministerial officers, are held liable for mere

nonfeasance of duty. Sheriffs and constables are not unfrequently held liable

for failing to levy an execution, failing to return it, for permitting property

seized on execution to be re-taken by the defendant, and in a number of other

cases, where loss is occasioned to the plaintiff by mere non-action,

unintentional, and caused by mere negligence or omission to perform a duty.

No reason is perceived for making any distinction between such officers and a

clerk.” (Emphasis in original.) Id. at 165.

¶ 16 In other cases, this court explained that liability is limited to instances in which

the duty alleged to have been breached is ministerial. In People v. May, 251 Ill. 54

(1911), this court explained that circuit clerks have immunity for discretionary

actions, but not for breaches of ministerial duties. The court explained that a clerk’s

duty is ministerial when it is “absolute, certain and imperative, involving merely

the execution of a specific duty arising from fixed and designated facts.” Id. at 57.

In People ex rel. Munson v. Bartels, 138 Ill. 322 (1891), this court said the same

thing when discussing the potential liability of the clerk of the probate court:

“But where the duty imposed on an officer is purely ministerial, he will be

held liable for an injury to another which results from his failure to perform it,

or from his performance of it in a negligent or unskillful manner. Official duty

is ministerial when it is absolute, certain and imperative, involving merely the

execution of a set task, and when the law which imposes it, prescribes and

defines the time, mode and occasion of its performance with such certainty that

nothing remains for judgment or discretion. Official action is ministerial when

it is the result of performing a certain and specific duty arising from fixed and

designated facts.” Id. at 328-29.

In that case, this court determined that when the probate clerk performed his

statutory duty of taking acknowledgments, he is performing a ministerial duty. The

statute required that the officer state in a certificate that the person making the

acknowledgment was personally known to him as the real person subscribing the

instrument. When the clerk made the certification required by the statute but did so

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falsely, he was breaching a ministerial duty, and his sureties could be held liable.

Id. at 335-36.

¶ 17 As we explained in In re Chicago Flood Litigation, 176 Ill. 2d 179, 193-94

(1997), the discretionary immunity doctrine is now codified in sections 2-109 and

2-201 of the Local Governmental and Governmental Employees Tort Immunity

Act (745 ILCS 10/2-109, 2-201 (West 2012)). These sections continued a rule that

had already been established at common law and which had survived the abolition

of sovereign immunity. Id. Section 2-109 provides that a local public entity is not

liable for an act or omissions of one its employees when the employee is not liable,

and section 2-201 provides:

Ҥ 2-201. Except as otherwise provided by Statute, a public employee

serving in a position involving the determination of policy or the exercise of

discretion is not liable for an injury resulting from his act or omission in

determining policy when acting in the exercise of such discretion even though

abused.” 745 ILCS 5/2-201 (West 2012).

In the motion to dismiss, neither defendant asserted any immunities. Both simply

argued that the complaint failed to state a cause of action.

¶ 18 We now turn to the complaint that plaintiff filed. As we noted above, the

plaintiff filed a complaint sounding in negligence, but the circuit court and the

appellate court instead considered whether a private right of action was implied in

the statute. Plaintiff was very clear in the circuit court that he was proceeding on a

negligence theory, contending that the clerk and the sheriff had breached a

ministerial duty and that he suffered damages as a direct and proximate result of

that breach. In this court, that is still the primary argument that plaintiff makes, and

he relies on the private right of action argument only as a secondary argument.

Despite this, defendants did not even attempt to address plaintiff’s argument that

public officials can be held liable for breaches of ministerial duties.

¶ 19 The appellate court spent the majority of its opinion discussing whether a

private right of action was implied in the statute, and only briefly touched on the

negligence issue. The appellate court held that plaintiff had no cause of action for

negligence, relying on Abbasi v. Paraskevoulakos, 187 Ill. 2d 386, 394 (1999),

where this court stated the rule that in a common law negligence action, “a

‘violation of a statute or ordinance designed to protect human life or property is

prima facie evidence of negligence.’ ” 2014 IL App (5th) 120415, ¶ 26 (quoting

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Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434 (1991)). The appellate court

concluded that, because section 5-4-1(e)(4) is not a safety statute, plaintiff could

not plead its violation in a common law negligence action. 1 Id. The problem with

the appellate court’s reasoning here is that whether a certain category of statutory

violation amounts to prima facie evidence of negligence has nothing to do

with—let alone determines—whether another category of statutory violation (in

this case the violation of a public official’s statutory ministerial duty) may support a

cause of action for common law negligence.

¶ 20 The circuit court and the appellate court erred in focusing on whether section

5-4-1(e)(4) implies a private right of action. The four-part Noyola test is the

analysis that this court uses when the plaintiff alleges a cause of action that

originates in a statute, but the statute does not set forth an express right of action.

See, e.g., Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 458 (1999) (“[t]he

sole count of the complaint purported to allege an implied private right of action for

damages pursuant to section 3-608 of the Nursing Home Care Act”). It has no

application when the plaintiff is proceeding on a common law theory. Here,

plaintiff was proceeding on a common law negligence theory, under a

long-established rule that public officials may be held liable for breaches of

ministerial duties. Plaintiff’s cause of action did not originate in the statute; the

statute merely set forth the particular ministerial duty that was alleged to have been

breached. The relevant question before the court is whether plaintiff adequately

pleaded a common law negligence claim for the breach of a ministerial duty. The

appellate court stated, and we agree, that the duties prescribed by section

5-4-1(e)(4) are ministerial. See 2014 IL App (5th) 120415, ¶ 28. That section

merely requires the sheriff to provide to the clerk the number of days that defendant

has been in custody, and then the clerk is to forward that information to the place

where the defendant is confined. These actions do not require the exercise of

discretion. They are simply the execution of set tasks, arising from “fixed and

designated facts.” See Munson, 138 Ill. at 328-29.

¶ 21 Defendants have argued that the complaint did not allege the breach of a duty

by the clerk, because the clerk is merely required to forward the information that he

or she receives from the sheriff and has no independent duty to verify the accuracy

1

The court reached this conclusion despite the fact that, a mere two paragraphs later, it cited the

rule that a public official may be held liable for the negligent performance of a ministerial duty and

that section 5-4-1(e)(4) prescribes ministerial duties. 2014 IL App (5th) 120415, ¶ 28.

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of this information. As plaintiff explained at oral argument, however, this case is

still at the pleading stage; no discovery has been had. Therefore, it is not known yet

if the sheriff forwarded the wrong number of days to the clerk, and the clerk merely

passed them along, or if the sheriff forwarded the correct number of days to the

clerk, and the clerk forwarded the wrong number of days to the Department of

Corrections. Plaintiff conceded that, if the clerk did indeed forward the number of

days provided by the sheriff, then the clerk has not breached the duty imposed by

the statute.

¶ 22 The problem, however, is that this is not what plaintiff pleaded in his complaint.

In his count against the clerk, plaintiff pleaded that section 5-4-1(e)(4) imposed a

duty on the clerk to transmit to the Department of Corrections the accurate number

of days that plaintiff had been in custody and that defendant Nyberg breached that

duty when he transmitted an inaccurate number. In his brief, he continues to make

that argument and contends that defendants are claiming that the only duty imposed

on the clerk is to transmit “any arbitrary number of days.” But that is not at all what

defendants contend. Rather, defendants correctly argue that the duty imposed on

the clerk under section 5-4-1(e)(4) is to transmit the number of days that the clerk

receives from the sheriff. In plaintiff’s complaint, he did not allege that the clerk

breached his duty to forward the number of days that he received from the sheriff.

He pleaded that the clerk breached his duty to transmit the accurate number of days

defendant has been in custody, but that is not the duty imposed by the statute. Just

as in Harms, there was no duty on the clerk’s part to ensure that body attachments

were removed from the sheriff’s records once they had been vacated, here there is

no duty on the part of the clerk to verify the accuracy of the information received

from the sheriff. Accordingly, the count against the clerk was properly dismissed.

However, we believe that the dismissal should be without prejudice. A complaint

should be dismissed with prejudice under section 2-615 only if it is clearly apparent

that no set of facts can be proven that will entitle the plaintiff to recover. Illinois

Graphics Co. v. Nickum, 159 Ill. 2d 469, 488 (1994). In this case, and as plaintiff’s

remarks at oral argument clearly demonstrate, a set of facts can easily be pleaded

against the clerk that, if proven, would entitle plaintiff to recover. Indeed, only a

minor adjustment to the claim already filed, along the lines described above, is

required. Accordingly, pursuant to our authority under Illinois Supreme Court Rule

366(a)(5) (eff. Feb. 1, 1994), we modify the trial court’s judgment to make the

dismissal of count I without prejudice.

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¶ 23 As for the sheriff, plaintiff pleaded that section 5-4-1(e)(4) imposed a duty upon

the sheriff to transmit the accurate number of days that plaintiff had been in

custody, and that a negligent breach of that duty directly and proximately caused

him to be wrongfully confined in the Department of Corrections for over four

months. We believe that this states a cause of action under Illinois law, for all of the

reasons set forth above. Accordingly, we agree with the appellate court that the trial

court erred in granting defendants’ section 2-615 motion to dismiss as to the sheriff.

We therefore affirm the judgment of the appellate court in part and reverse in part,

and we remand the matter to the circuit court for further proceedings consistent

with this disposition.

¶ 24 Appellate court judgment affirmed in part and reversed in part.

¶ 25 Circuit court judgment affirmed as modified in part and reversed in part.

¶ 26 Cause remanded with instructions.

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