Cowper v. Nyberg

Illinois Official Reports

Supreme Court

Cowper v. Nyberg, 2015 IL 117811

Caption in Supreme DeANGELO M. COWPER, Appellee, v. RANDY NYBERG et al.,

Court: Appellants.

Docket No. 117811

Filed March 19, 2015

Decision Under Appeal from the Appellate Court for the Fifth District; heard in that

Review court on appeal from the Circuit Court of Saline County, the Hon.

Todd D. Lambert, Judge, presiding.

Judgment Appellate court judgment affirmed in part and reversed in part.

Circuit court judgment affirmed as modified in part and reversed in

part.

Cause remanded with instructions.

Counsel on Joseph A. Bleyer and James B. Bleyer, of Bleyer & Bleyer, of Marion,

Appeal for appellants.

Andrew T. Flynn, of Tetzlaff, Flynn & Associates, P.C., of Marion,

for appellee.

Justices 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:

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(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 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

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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 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

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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 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 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

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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 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:

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“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 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 omission 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

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

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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 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

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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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.

¶ 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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