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Brown v. Hertz

June 22, 2009

JERAMEY R. BROWN, PLAINTIFF,
v.
ROBERT HERTZ, JOHN LAKIN, BRAD WELLS, DENNIS FISCHER, JOHN GILBERT, JOHN MCGUIRE, JOE GULASH, BOB HOLLENBECK, JODY COLLMAN, STEVE HUCH, BOB RICHERT, JEFF HARTSOE, MATT WERNER, MAYNARD HILL, "TRAVIS", DON MCNAUGHTON, BRAD BESSON, DIANE FRITSCHLE, AND MADISON COUNTY, ILLINOIS, DEFENDANTS.



The opinion of the court was delivered by: Murphy, District Judge

MEMORANDUM AND ORDER

This matter is before the Court on a Report and Recommendation from United States Magistrate Judge Philip M. Frazier which was entered on February 19, 2009. The case was reassigned from District Judge Stiehl to the undersigned on May 7, 2009.

Magistrate Judge Frazier recommends that this Court grant the motion to dismiss filed by Defendants Fritschle and Besson (Doc. 23) as to the official capacity claims (Plaintiff Brown's individual claims against these Defendants would remain). Magistrate Judge Frazier further recommends that the motion to dismiss by Defendants Gilbert and McGuire (Doc. 27) be denied without prejudice. Defendants Gilbert and McGuire filed an objection to the Report and Recommendation on March 10, 2009 (Doc. 43).

When a timely objection to a Report and Recommendation is filed, this Court must undertake a de novo review. 28 U.S.C. § 636(b)(1)(B),(C); Fed R. Civ. P. 72(b); Local Rule 73.1 of the United States District Court for the Southern District of Illinois; Harper v. City of Chicago Heights, 824 F. Supp. 786, 788 (N.D. Ill. 1993); see also Govas v. Chalmers, 965 F.2d 298, 301 (7th Cir. 1992). The Court "may accept, reject or modify the magistrates judge's recommended decision." Harper, 824 F. Supp. at 788. In making this determination, the Court must look at all the evidence contained in the record and "give 'fresh consideration to those issues to which specific objections have been made.'" (quoting CHARLES ALAN WRIGHT, ARTHUR M. MILLER & RICHARD L. MARCUS, FEDERAL PRACTICE AND PROCEDURE: Civil 2d § 3076.8, at p. 55 (1992 Pocket Part)).

The facts, taken from District Judge Stiehl's September 29, 2008, Order conducting an initial review of this action pursuant to 28 U.S.C. § 1915, are as follows:

In October 2004, while incarcerated at Stateville, Plaintiff filed a federal civil rights action against Defendants, "alleging a myriad of constitutional violations" that occurred while he was in the Madison County Jail. See Brown v. Madison County, Case No. 04-cv-824-MJR (S.D. Ill., filed Oct. 1, 2004). During the pendency of that action, Plaintiff's criminal conviction was reversed. He was returned to Madison County Jail in January 2006 pending retrial of his criminal case.

Upon his arrival at Madison County Jail, he was immediately assigned to an isolation cell, rather than general population. He was denied all out-of-cell recreation, permitted only limited access to the law library, and was denied privileges such as television, radio, regular visits, and any sort of human contact with his fellow inmates. Further, his mail (both incoming and outgoing) tended to disappear on a regular basis, other mail was photocopied, and even his legal phone calls were monitored and recorded.

Defendants also embarked upon a pattern of harassment. He alleges that officers would bang on his cell walls and doors throughout the night, meals were deliberately withheld, his hot water was shut off for almost three weeks, the air conditioning was cut off in the summer, while his heat was shut off during the winter. Finally, Defendants refused to accommodate his fasting during Ramadan. (Doc. 11, footnote omitted). The Court notes that Brown was convicted following his retrial, and sent to Graham Correctional Center, where he was housed when this lawsuit was filed. He is now billeted at Menard Correctional Center. Based on the facts above, Brown claims that the defendants have engaged in a vast conspiracy of retaliation against him for bringing his 2004 lawsuit.

The first issue before the Court is Brown's official capacity claims against Defendants Fritschle and Besson. Magistrate Judge Frazier concludes that the official capacity claims should be dismissed because Fritschle and Besson have been sued for tasks they performed on behalf of the Illinois Department of Corrections. Because the Illinois Department of Corrections is a state agency, and the State of Illinois has not consented to be sued in federal court, Brown's official capacity claims are barred by the Eleventh Amendment. Neither party objects to this conclusion and therefore the Court need not review it further.

The next issue is Brown's request for injunctive relief against Fritschle and Besson. Prospective injunctive relief is available to abate a continuing violation of federal law. Kentucky v. Graham, 473 U.S. 159, 169 (1985). Magistrate Judge Frazier reasons that because Brown is no longer confined at the Madison County jail, his request for injunctive relief is not viable and should be dismissed. Again, Brown does not object to this conclusion. The Court agrees that this claim should be dismissed.

The third issue is the request by Defendants Gilbert and McGuire for dismissal on the grounds that they enjoy absolute immunity for official functions that are quasi-judicial in nature.

Magistrate Judge Frazier notes that the doctrine of absolute immunity protects prosecutors when the function or obligation at issue relates to the preparation and initiation of prosecution or the presentation of the State's case. Imbler v. Pachtman, 424 U.S. 409, 431 (1976). An assistant state's attorney may function in a quasi-judicial role when giving advice to county officials. Henderson v. Lopez, 790 F.2d 44 (7th Cir. 1986); but see Burns v. Reed, 500 U.S. 478 (1991) (state prosecutor was not entitled to absolute immunity for giving legal advice to police).

Magistrate Judge Frazier also notes that under Bell Atlantic Corp. v. Twombly, Brown must only allege plausible grounds for relief at the pleading stage. 127 S.Ct. 1955, 1964 (2007). By the terms of the complaint, it is plausible that Gilbert and McGuire's conduct did not take place during Brown's criminal prosecution. It is plausible that the unconstitutional conduct occurred while McGuire and Brown were giving advice to the other defendants about the constitutionality of their conduct. Therefore Magistrate Judge Frazier concludes that the Court has insufficient information at this time to resolve the absolute immunity defense because the allegations in the complaint do not clearly link the advice with a quasi-judicial function. Defendants Gilbert and McGuire object to this conclusion.

Defendants Gilbert and McGuire argue that their only involvement in Brown's case was in their capacity as Madison County Assistant State's Attorneys (see Doc. 36). They also argue that as Madison County Assistant State's Attorneys, they rendered legal advice to county officials, including Sheriff ...


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