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Baker v. Hertz

United States District Court, S.D. Illinois

January 11, 2017

JEFFREY BAKER, Plaintiff,
v.
ROBERT HERTZ, JOHN LAKIN, GARY BOST, DONALD BUNT, ROBERT HOLLENBACH, RANDY YOUNG, LT. HILL, MIRAN THOMPSON, SGT. DOVER, JODIE COLLMAN, PAUL SARHAGE, STEVE RIDINGS, DONALD McNAUGHTON, KENT GRIFFITH, TIM WALKER, CRAIG RICHERT, MIKE TASSOME, MIKE HARE, OFCR. MARK SPURGEON, BLAKE SELLERS, MARK RYAN, MATT MILLER, ROBERT BLANKENSHIP, MARTHA MAJOR, ALICIA RUSHING, and VALERIE BASSETS, Defendants.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT DISTRICT JUDGE

         This matter comes before the Court on the Report and Recommendation (“Report”) (Doc. 111) of Magistrate Judge Donald G. Wilkerson recommending that the Court strike the reply brief (Doc. 91) and grant in part and deny in part the motion for summary judgment on Counts 4 and 9 filed by defendant Robert Hertz (Doc. 74).

         The Court may accept, reject or modify, in whole or in part, the findings or recommendations of the magistrate judge in a report and recommendation. Fed.R.Civ.P. 72(b)(3). The Court must review de novo the portions of the report to which objections are made. Id. “If no objection or only partial objection is made, the district court judge reviews those unobjected portions for clear error.” Johnson v. Zema Sys. Corp., 170 F.3d 734, 739 (7th Cir. 1999).

         The Court has received no objection to the Report. The Court has reviewed the entire file and notes only one minor error. Magistrate Judge Wilkerson stated that Hertz, whom Baker is suing in Count 4 for injunctive relief in his official capacity as the Sheriff of Madison County, is really a claim against the municipality of Madison County. In reality, under Illinois law a sheriff is an independently elected constitutional officer, not an agent of the county in which he was elected. Ill. Const. art. VII, § 4(c); Moy v. County of Cook, 640 N.E.2d 926, 931 (Ill. 1994). Nevertheless, Magistrate Judge Wilkerson's conclusion is correct that Hertz currently lacks the capacity to provide injunctive relief under Count 4 because he is no longer sheriff. Except for this minor error, the Report is not clearly erroneous. Accordingly, the Court hereby:

ADOPTS the Report as MODIFIED to correct the lone error (Doc. 111);
STRIKES Hertz's reply brief (Doc. 91);
GRANTS in part and DENIES in part Hertz's motion for summary judgment (Doc. 74). The motion is GRANTED to the extent it seeks summary judgment against Hertz on Count 4. The motion is DENIED in all other respects;
DISMISSES Count 4 against Hertz without prejudice; and
DIRECTS the Clerk of Court to enter judgment accordingly at the close of the case.

         IT ...


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