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Baker v. Hertz
United States District Court, S.D. Illinois
January 11, 2017
JEFFREY BAKER, Plaintiff,
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
PHIL GILBERT DISTRICT JUDGE
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).
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).
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.
• STRIKES Hertz's reply brief (Doc.
• 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.