The opinion of the court was delivered by: Williams, Magistrate Judge:
Plaintiff Richard Ambrose ("Ambrose"), along with eleven other Plaintiffs who have been dismissed from this case, filed a pro se civil rights Complaint pursuant to 42 U.S.C. § 1983 on July 29, 2008, alleging that Defendants-one corporation, the Department of Children and Family Services, "all counties and municipalities, unknown phone contractors and various officials and/or employees within the Illinois Department of Corrections ["IDOC"])-violated their constitutional rights (Doc. 1). Ambrose has been civilly committed to the IDOC's Big Muddy River Correctional Center ("BMRCC") pursuant to the Sexually Dangerous Persons Act ("SDPA"), 725 ILCS 205/0.01 et seq., and he claims that he has suffered severe emotional distress at the hands of Defendants, in part, because he has not been offered any mental health treatment. On March 4, 2009, Chief District Judge David R. Herndon completed his preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A (Doc. 38). On March 6, 2011, Judge Herndon granted plaintiffs' request and appointed counsel to represent them in this matter (Docs. 39, 42). On August 25, 2009, Plaintiffs filed their Amended Complaint including claims based on both Illinois and federal law organized into 8 separate counts (Doc. 71).
In his July 1, 2010 Order adopting the Report and Recommendation of Magistrate Judge Proud in its entirety, Judge Herndon concluded that 6 of the 7 remaining Plaintiffs had failed to exhaust their administrative remedies prior to filing this action, and that Ambrose had not exhausted his administrative remedies as to 2 of the 5 remaining Defendants (Doc. 114, pp. 12-13). Judge Herndon noted that the following claims by Ambrose remain pending:
Count 1: Claim under 42 U.S.C. § 1983 by against Defendants Walker, Randle, and Carich for deliberate indifference to his "constitutional rights to reasonable safety" in that defendants' agents and employees have verbally assaulted him, have housed him with general population inmates, have identified him as an SDP to general population inmates, and have instructed inmates to verbally assault him.
Count 2: State law claim by Ambrose against Walker and Randle arising out of the events alleged in Count 1.
Count 4: Section 1983 claim by Ambrose against Walker and Randle for subjecting him to improper searches.
Count 5: Section 1983 claim by Ambrose against Walker, Randle, and Carich for deliberate indifference to his serious mental health needs.
Count 6: State law claim by Ambrose against Walker, Randle, and Carich
Id. On June 14, 2011, Ambrose filed his written Consent (Doc. 161), and on June 22, 2011, the three remaining Defendants filed their written Consent to have this matter resolved by the undersigned pursuant to 28 U.S.C. 636(c). On June 28, 2011, Ambrose stipulated to the dismissal of all claims against Directors Walker and Randle in their individual capacities (Doc. 172).
On July 18, 2011, the Court held an in-court hearing on Ambrose's Motion to Exclude the Testimony of Dr. Terry Killian (Doc. 151), Ambrose's Motions in Limine (Doc. 154) and various pretrial matters raised in the Pretrial Briefs submitted by the parties (Docs. 179, 180). First, at the Court's direction, the parties agreed to substitute the current Director of the IDOC, Salvador Godinez, in his official capacity only, for former IDOC Directors Roger Walker and Michael Randle, in their official capacity. On July 19, 2011, the parties filed a Consent Motion to Substitute (Doc. 182) which the Court now GRANTS. Accordingly, Roger Walker and Michael Randle SHALL be terminated as parties to this action and Salvador Godinez SHALL be substituted in their place, in his official capacity only.
Pretrial Briefs (Docs. 179, 180)
At the Court's direction, the parties were allowed to file Pretrial Briefs focused on three remaining substantive issues: 1) whether Eleventh Amendment sovereign immunity bars Ambrose's Illinois state law claims; 2) whether some of Ambrose's claims regarding the mental health treatment at BMRCC are barred by the Heck v. Humphrey doctrine; and 3) whether the relevant Illinois statutes create a private cause of action upon which Ambrose may seek relief.
First, the Court does not believe that any of the statutes cited by Ambrose were intended to create a private cause of action. Illinois courts have recognized that IDOC regulations and the Unified Code of Corrections were "never intended to confer rights on inmates or serve as a basis for constitutional claims." Ashley v. Snyder, 739 N.E.2d 897, 902 (Ill. App. Ct. 2000), citing Sandin v. Conner, 515 U.S. 472, 482 (1995). While apparently no Illinois court has addressed whether Illinois' SDPA creates such a private cause of action, there is no reason for this Court to believe that the result would be any different. Further, for the most part, Plaintiff's state law claims are duplicative of his federal constitutional claims and thus, unnecessary.
Even if the Court were to find that these state statutes created a private cause of action, Ambrose's state law claims against Defendants in their official capacities are barred by Eleventh Amendment immunity. Ambrose argues that Defendants waived their right to assert a sovereign immunity defense because of their failure to raise this defense until the eleventh hour. Ambrose relies primarily on the Ninth Circuit Court of Appeals decision in Hill v. Blind Industries and Services of Maryland, for the notion that "[r]equiring the prompt assertion of an Eleventh Amendment defense . minimizes the opportunity for improper manipulation of the judicial process." 179 F.3d 754, 758 (9th Cir. 1999). Defendants, in response, allege that a sovereign immunity defense may be raised at any point in the litigation and that they did not intentionally delay in raising the defense. The Court agrees that intentional delay, such as the conduct outlined in Hill, could act as an explicit waiver of sovereign immunity. However, here, the Court does not find that the Defendant's conduct amounted ...