Opinion
5-21-0138
05-04-2022
GLENDA JORDAN, Plaintiff-Appellant, v. BRANDON ZANOTTI and ANDREW WILSON, Defendants-Appellees.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Williamson County. No. 20-L-125 Honorable Jeffrey A. Goffinet, Judge, presiding.
JUSTICE WELCH delivered the judgment of the court. Presiding Justice Boie and Justice Wharton concurred in the judgment.
ORDER
WELCH JUSTICE
¶ 1 Held: The trial court properly dismissed the plaintiffs amended complaint where the plaintiff did not sufficiently allege the defendants' personal involvement in the claims that she brought under 42 U.S.C. § 1983 and where her claims were barred by sovereign immunity.
¶ 2 The plaintiff, Glenda Jordan, filed a two-count amended complaint, seeking a declaratory judgment, injunctive relief, and monetary damages against the defendants, Brandon Zanotti and Andrew Wilson, in the circuit court of Williamson County. Thereafter, on April 22, 2021, the trial court dismissed the complaint, finding that the plaintiff lacked standing to seek declaratory and injunctive relief, the plaintiffs declaratory judgment and injunctive relief claims against Wilson were moot, and the defendants were entitled to sovereign immunity on the claim seeking monetary damages. For the reasons that follow, we affirm the court's dismissal of the plaintiff's amended complaint.
¶ 3 I. BACKGROUND
¶ 4 On August 14, 2019, Kishima Jeffers filed a verified petition seeking a no contact order against the plaintiff. That same day, the trial court entered an emergency stalking no contact order against the plaintiff. The court's order was a form order that had been "approved by the Conference of Chief Circuit Judges," was effective December 11, 2009, and was required to be used after January 1, 2010. The order, among other things, prohibited the plaintiff from "threatening to commit or committing stalking" against Jeffers. The order defined stalking as, "engaging in a course of conduct directed at a specific person, and he or she knows or should know that this course of conduct would cause a reasonable person to fear for his or her safety or the safety of a third person or suffer emotional distress." The order also defined course of conduct to include "two or more acts, including but not limited to acts in which a respondent directly, indirectly, or through third parties, by any action, method, device, or means communicates to or about, a person." At the September 4, 2019, hearing for extension of the emergency order, Jeffers failed to appear, the emergency order expired, and the court dismissed her action for want of prosecution.
¶ 5 One year later, on September 15, 2020, the plaintiff filed a three-count complaint for declaratory judgment, injunctive relief, and monetary damages against the defendants. At the time the complaint was filed, Zanotti was the Williamson County State's Attorney, and Wilson was the circuit court clerk in Williamson County. Thereafter, on January 12, 2021, the plaintiff filed an amended two-count complaint, in which she contended that the stalking no contact order's language that prohibited her communications to or about Jeffers violated her constitutional right to free speech. In support, she noted that People v. Relerford, 2017 IL 121094, and Flood v. Wilk, 2019 IL App (1st) 172792, had held that the same language contained in the temporary order barring her from "communicating to or about" Jeffers had been held unconstitutional. Because of the holding in these two cases, the plaintiff stated that the Illinois legislature amended the statutory language in section 10 of the Stalking No Contact Order Act. Pub. Act 100-1000, § 5 (eff. Jan. 1, 2019) (amending 740 ILCS 21/10 (West 2018)). She contended that Zanotti, by and through his employees, obtained the forms for obtaining a stalking no contact order from the circuit clerk's office and assisted Jeffers in filling them out. He also assisted in the procurement of the emergency order. The complaint noted that the plaintiff brought the claims against Zanotti in his individual and representative capacities. The plaintiff also contended that Wilson, by and through his employees, procured the entry of the emergency order in that his employees delivered the form order to Zanotti's employees. The complaint indicated that the plaintiff brought the claims against Wilson in his representative capacity.
¶ 6 In count I, which requested declaratory and injunctive relief, the plaintiff argued that the defendants continued to use the form, even though they had received notice that it was unconstitutional, and the continued use of the form orders would result in further entry of illegal and void orders. Thus, the plaintiff sought a declaration that the form order presently being used violated the constitutional rights of those individuals against whom the orders were entered against and requested preliminary and permanent injunctions prohibiting the use of the form orders.
¶ 7 In count II, in which she sought monetary damages, the plaintiff brought a claim pursuant to 42 U.S.C. § 1983 (2018) for an alleged violation of her free speech rights. She argued that (1) the defendants owed a duty to present a temporary order to the trial court that complied with the applicable statutory and constitutional law; (2) they breached that duty by presenting an order that violated her constitutional rights; (3) the decision to present an unconstitutional order constituted a substantial departure from accepted judgment, practice, or uniform standards, and it was blatantly inappropriate and not based on any objective standard as the defendants made no inquiry to determine whether the form order was in compliance with the existing law; and (4) the defendants' failure to conduct a reasonable inquiry into the form's constitutionality was in deliberate indifference to the plaintiff's constitutional rights. As a breach of their duty, the plaintiff was injured in the following ways: the emergency order was a prior restraint on her freedom of speech; while the order was in place, she was under constant threat of arrest; she suffered emotional distress, such as anxiety, irritability, and sleep disruption; and she was unable to respond to social media posts that were made about the emergency order's issuance because she was prohibited from communicating about Jeffers. Thus, she requested compensatory damages for the violation of her constitutional right to free speech, compensatory damages for her emotional distress, punitive damages, and reasonable attorney fees.
¶ 8 On March 4, 2021, the defendants filed a combined motion to dismiss under section 2-619.1 of the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2020)). Pursuant to section 2-615 of the Code (id. § 2-615), the defendants contended that the plaintiff lacked standing to seek declaratory relief on behalf of others who may be subject to the temporary no contact orders, her claim merely sought an advisory opinion, and she failed to state a cause of action for a constitutional violation under 42 U.S.C. § 1983 (2018) where she failed to allege that the defendants were personally involved in any alleged constitutional violations.
¶ 9 Under section 2-619 of the Code (735 ILCS 5/2-619 (West 2020)), the defendants argued that the plaintiff's claims for damages were barred by sovereign immunity, the claims against Zanotti were barred by prosecutorial immunity, the claims against Wilson were barred by quasi-judicial immunity, the defendants were entitled to qualified immunity, and her claims were barred by res judicata.
¶ 10 In support of the motion to dismiss, the defendants submitted affidavits stating that they had no personal involvement in the procurement of the temporary no contact order entered against the plaintiff and that the order was a standardized form obtained from the Illinois Supreme Court's website. Wilson also stated that, although his office provided the forms, his office did not draft them, complete them, or assist any party in completing them. He further stated that he was not the Williamson County circuit clerk in August 2019 when the temporary no contact order was entered against the plaintiff. Zanotti stated that his office employed a victim's advocate who, in some circumstances, provided assistance to pro se litigants in completing the necessary forms to obtain orders of protection or no contact orders. In those cases, the victim's advocate was often present in court with the pro se litigants, but the advocate was not their attorney.
¶ 11 On March 23, 2021, the plaintiff filed a response to the defendants' motion to dismiss, in which she contended that she had standing to pursue her claims because her constitutional right to free speech was violated by the temporary no contact order, and a determination that the form order violated an individual's constitutional rights was necessary to decide whether her constitutional rights had been violated. She argued that she had sufficiently pled the defendants' personal involvement by alleging that they acted through their employees when they obtained the forms, assisted Jeffers in filling out the forms, and assisted in the procurement of the temporary no contact order. She also argued that the defendants could be held liable as supervisors because they were deliberately indifferent to the use of the forms, which resulted in a violation of the plaintiff's constitutional rights. As for sovereign immunity, the plaintiff contended that it did not apply because the defendants acted in violation of her constitutional rights and outside the scope of their statutory authority.
¶ 12 On April 22, 2021, the trial court entered an order dismissing the plaintiff's amended complaint. In the order, the court found that the plaintiff lacked standing to bring the declaratory and injunctive relief claims because, along with seeking redress for herself, she also sought redress for all individuals against whom stalking no contact proceedings were being brought. The court found that she had no standing to prosecute claims as to all persons against whom these proceedings were brought. The court also found that those claims against Wilson were moot because he was no longer the circuit clerk in Williamson County. As for the claims seeking monetary damages, although the court found that the plaintiff's complaint sufficiently stated a cause of action, it found that the claims were barred by sovereign immunity. In making this decision, the court noted that the defendants were using a form approved by the Conference of Chief Circuit Judges, which was required for use after January 1, 2010, and the employees intended to perform a function within the scope of their duties when committing the legal wrong. Thus, the court found that sovereign immunity applied and did not address the other arguments with regard to count II. The plaintiff appeals.
¶ 13 II. ANALYSIS
¶ 14 This case was decided on the defendants' combined motion to dismiss filed pursuant to section 2-619.1 of the Code (id. § 2-619.1). Section 2-619.1 allows a party to combine a section 2-615 motion to dismiss based on a plaintiff's substantially insufficient pleadings with a section 2-619 motion to dismiss based on certain defects or defenses. Id; Edelman, Combs & Latturner v. Hinshaw & Culbertson, 338 Ill.App.3d 156, 164 (2003). When ruling on a motion to dismiss under either section 2-615 or section 2-619, the court accepts all well-pleaded facts in the complaint as true and draws all reasonable inferences from those facts in favor of the nonmoving party. Edelman, Combs & Latturner, 338 Ill.App.3d at 164. Our review of a motion to dismiss brought under both sections 2-615 and 2-619 is de novo. Kucinsky v. Pfister, 2020 IL App (3d) 170719, ¶ 34.
¶ 15 A section 2-615 motion to dismiss tests the legal sufficiency of a complaint. Taylor v. Frey 406 Ill.App.3d 1112, 1115 (2011). Under section 2-615, the question is whether the facts alleged in the complaint, viewed in the light most favorable to plaintiff, are sufficient to state a cause of action upon which relief may be granted. O'Keefe v. Walgreens Boots Alliance, Inc., 2020 IL App (5th) 190448, ¶ 13. Illinois is a fact-pleading jurisdiction where plaintiff cannot rely on mere conclusions of law or fact unsupported by specific factual allegations. Kucinsky, 2020 IL App (3d) 170719, ¶ 55.
¶ 16 In contrast, a motion to dismiss under section 2-619 admits the sufficiency of the complaint but asserts a defense outside of the complaint that defeats it. Patrick Engineering, Inc. v. City of Naperville, 2012 IL 113148, ¶ 31. Section 2-619(a)(9) provides for an involuntary dismissal where the claim is barred by other affirmative matter avoiding the legal effect of or defeating the claim. 735 ILCS 5/2-619(a)(9) (West 2020). A lack of standing and immunity are appropriate grounds for a section 2-619 motion. See Van Meter v. Darien Park District, 207 Ill.2d 359, 367 (2003); Cedarhurst of Bethalto Real Estate, LLC v. Village of Bethalto, 2018 IL App (5th) 170309, ¶ 16.
¶ 17 In this case, at oral argument, the plaintiff acknowledged that the unconstitutional language in the emergency no contact form order has been deleted. Thus, count I of her amended complaint, which requested declaratory and injunctive relief, is now moot. Accordingly, we affirm the trial court's dismissal of count I of the amended complaint. Now, we turn to the issue of whether the court properly granted the defendants' motion to dismiss with regard to count II.
¶ 18 In count II of the amended complaint, the plaintiff argued that both of the defendants acted "by and through [their] employees" in providing the form orders and assisting Jeffers in procuring the entry of the emergency no contact order. However, the plaintiff has failed to allege any personal involvement on the part of either defendant. For instance, she has not alleged that either defendant personally selected the forms, personally provided the form to Jeffers, or personally knew that unconstitutional forms were being used but turned a blind eye. Also, with regard to Zanotti, the plaintiff has not alleged that he personally assisted Jeffers in filling out the form or personally appeared in court to assist Jeffers in obtaining the stalking no contact order.
¶ 19 For a section 1983 claim, a government official is only liable for his own personal misconduct. Taylor v. Ways, 999 F.3d 478, 493 (7th Cir. 2021). Section 1983 will not support a claim based on respondeat superior. Id.; Polk County v. Dodson, 454 U.S. 312, 325 (1981). Thus, a supervisor is only liable if he was personally involved in the constitutional violation. Taylor, 999 F.3d at 493. A supervisor is personally responsible if the constitutional violation occurred at his direction or with his knowledge and consent. Kucinsky, 2020 IL App (3d) 170719, ¶ 73. In other words, the supervisor must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye, acting either knowingly or with deliberate reckless indifference. Id. However, a supervisor's deliberate indifference alone does not make him liable under section 1983. Guadalupe-Baez v. Pesquera, 819 F.3d 509, 515 (1st Cir. 2016). The causal link between the supervisor's conduct and the constitutional violation must be solid and contemplates proof that the supervisor's conduct led to the constitutional violation. Id. A plaintiff can satisfy this difficult standard by demonstrating the supervisor's inaction in the face of a known history of widespread abuse sufficient to alert the supervisor of continuing violations. Id.
¶ 20 Here, the alleged constitutional deprivation occurred when the temporary no contact order was entered against the plaintiff on August 14, 2019. At that time, Wilson was not the Williamson County circuit clerk-a fact that the plaintiff has recognized. Thus, Wilson could not have been personally involved in the alleged constitutional violation.
¶ 21 Zanotti also could not be held liable under section 1983 for the alleged misconduct of his employees merely because he was their supervisor at the time. The plaintiff has not alleged that Zanotti knew about the purported unconstitutional conduct and facilitated, approved, condoned, or turned a blind eye to it. The plaintiff's conclusory allegations are insufficient to satisfy Illinois's fact pleading requirement as the personal involvement standard requires allegations that the constitutional violation occurred at Zanotti's direction or with his knowledge and consent. At most, the plaintiff alleged that Zanotti received notice that the form order was unconstitutional and contrary to the statute and made no reasonable inquiry to determine whether the form was in compliance with the applicable statute. She also alleged that he chose not to make this inquiry, which was in deliberate indifference to the plaintiff's constitutional rights.
¶ 22 Although the plaintiff contends that the continued use of the purported unconstitutional form orders demonstrated Zanotti's personal involvement, we note that the plaintiff's amended complaint has failed to identify any source of information notifying Zanotti of the constitutional problem with the form order before it was used here. See Kucinsky, 2020 IL App (3d) 170719, ¶ 74 (allegations that plaintiff notified defendant of an alleged first amendment retaliation without any indication as to the substance of the notice were insufficient to allege personal involvement). Also, there was nothing in the complaint to demonstrate Zanotti's inaction in the face of a "known" history of violating constitutional rights to free speech where the form orders used were obtained from the Illinois Supreme Court's website, approved by the Conference of Chief Circuit Judges, and required to be used after January 1, 2010. The same reasoning is true for the plaintiff's allegation that Zanotti should be held liable for his failure to train his employees regarding the use of the form order. See J.K.J. v. Polk County, 960 F.3d 367, 379 (7th Cir. 2020) (a municipality must have notice that its program will cause a constitutional violation for it to be liable under section 1983 for its failure to act). Thus, we find that the plaintiff failed to allege the defendants' personal involvement in the purported constitutional violation. Even though the trial court did not dismiss the amended complaint on this basis, we can affirm the court's decision on any basis in the record. See Treadway v. Nations Credit Financial Services Corp., 383 Ill.App.3d 1124, 1128 (2008).
¶ 23 However, assuming arguendo that the plaintiff's amended complaint sufficiently pled personal involvement on the defendants' part, we also find that the trial court properly dismissed count II of the amended complaint based on sovereign immunity. Sovereign immunity is a common law doctrine that bars lawsuits against the State unless it consents to be sued. Jackson v. Alverez, 358 Ill.App.3d 555, 559 (2005). The Illinois Constitution abolished the doctrine of sovereign immunity, but the General Assembly retained the power to reinstate it. Ill. Const. 1970, art. XIII, § 4. Thereafter, the General Assembly reestablished sovereign immunity through the enactment of the State Lawsuit Immunity Act (Immunity Act) (745 ILCS 5/0.01 et seq. (West 2020)). Section 1 of the Immunity Act provides that the State "shall not be made a defendant or party in any court" except as provided in the Court of Claims Act (705 ILCS 505/1 et seq. (West 2020)). 745 ILCS 5/1 (West 2020). The State's sovereign immunity extends to suits against a state agency or department, and when sovereign immunity applies, the circuit court lacks jurisdiction to review the claim. Meyer v. Department of Public Aid, 392 Ill.App.3d 31, 34 (2009). A suit against a State official in his or her official capacity is no different than a suit against the State. Parmar v. Madigan, 2018 IL 122265, ¶ 21.
¶ 24 Whether an action is one against the State does not depend merely on the formal identification of the parties but rather on the issues involved and the relief sought. Id. ¶ 22. With regard to the issues raised, an action is against the State when there are (1) no allegations that an agent or employee of the State acted beyond the scope of his authority through wrongful acts, (2) the duty alleged to have been breached was not owed to the public generally independent of the fact of State employment, and (3) where the complained of actions involve matters ordinarily within that employee's normal and official functions of the State. Giovenco-Pappas v. Berauer, 2020 IL App (1st) 190904, ¶ 27.
¶ 25 Here, the plaintiff's amended complaint alleged that the defendants violated her constitutional rights by providing Jeffers with the form order and assisting Jeffers in procuring the no contact order and that they exceeded their authority in acting in this manner. With regard to Wilson, he had a statutory duty to provide pro se litigants filing a petition under the Stalking No Contact Order Act with simplified forms. See 740 ILCS 21/20(d) (West 2020) ("The court shall provide, through the office of the clerk of the court, simplified forms for filing of a petition under this Section by any person not represented by counsel."). Thus, the duty to provide pro se litigants with necessary forms solely arose from his state office.
¶ 26 Also, the plaintiff's allegation that Zanotti exceeded his statutory authority was based on actions that Zanotti had taken in his official capacity as a state's attorney. He acted through his office in providing the form and/or assisting the pro se litigant in filling it out. As the state's attorney, Zanotti has authority to assist pro se individuals with clerical assistance in writing and filing a petition for order of protection in domestic relations cases. See 750 ILCS 60/202 (d) (West 2020) ("The court shall provide, through the office of the clerk of the court, simplified forms and clerical assistance to help with the writing and filing of a petition under this Section by any person not represented by counsel. In addition, that assistance may be provided by the state's attorney."). Although we recognize that this case was not filed under the Illinois Domestic Violence Act of 1986, the plaintiff's claim is essentially that Zanotti exceeded his authority under that statute.
¶ 27 Where the State officer's conduct violates statutory or constitutional law or is in excess of his or her authority, it is not regarded as conduct of the State. Parmar, 2018 IL 122265, ¶ 22. Thus, the circuit court has jurisdiction when a plaintiff requests injunctive relief to prevent unauthorized or unconstitutional conduct by the State or to compel the State's compliance with legal or other constitutional requirements. Leetaru v. Board of Trustees of the University of Illinois, 2015 IL 117485, ¶ 48. "The underlying principle is that conduct taken by a State officer without legal authority strips the officer of his or her official status." Parmar, 2018 IL 122265, ¶ 22. This exception to sovereign immunity has been interchangeably called the "officer suit exception" or the "prospective injunctive relief exception." Id. The latter name explains why the plaintiff here cannot avoid the bar of sovereign immunity, regardless of the sufficiency of the allegations in the amended complaint. See Giovenco-Pappas, 2020 IL App (1st) 190904, ¶ 36. "A suit against an officer or agent of the State may avoid the sovereign-immunity bar only if the lawsuit seeks to enjoin future conduct by the State agent." (Emphasis omitted.) Id.
¶ 28 In Leetaru, a student filed a complaint in the circuit court against the Board of Trustees of the University of Illinois requesting injunctive relief, arguing that, if the university was going to investigate him for misconduct, it should be required to carry out the investigation in compliance with the rules, policies, bylaws, and regulations it had promulgated to govern investigations. Leetaru, 2015 IL 117485, ¶ 1. The circuit court dismissed the student's case, finding that the court of claims had exclusive jurisdiction over the matter. Id. ¶ 2. Our supreme court reversed the circuit court's dismissal, reasoning as follows:
"[Defendants assert that sovereign immunity principles should bar the action in circuit court because it seeks to enforce a present claim against the State and would interfere with the performance of a governmental function. This argument is untenable. Unlike cases such as Ellis v. Board of Governors of State Colleges & Universities, 102 Ill.2d 387 (1984), which sought damages and other relief based on discharge of a tenured university professor, or Healy v. Vaupel, 133 Ill.2d 295 (1990), which sought damages for personal injuries sustained by a gymnast during university-sponsored gymnastics activities, [plaintiff's] action does not seek redress for some past wrong. As we have explained, it seeks only to prohibit future conduct *** undertaken by agents of the State in violation of statutory or constitutional law or in excess of their authority. Claims of this kind are not against the State at all and do not threaten the State's sovereign immunity." Id. ¶ 51.
¶ 29 Here, although, in the amended complaint, the plaintiff originally sought both monetary damages and to enjoin the defendants' future conduct, count I of her amended complaint, which sought injunctive relief, is moot. Therefore, the only remaining count in her amended complaint sought monetary damages for the past actions of employees of the State (i.e., the use of the form stalking no contact order containing the unconstitutional language). Thus, the officer suit exception to sovereign immunity does not apply. See Giovenco-Pappas, 2020 IL App (1st) 190904, ¶ 37. Accordingly, we also affirm the trial court's dismissal of count II of the plaintiff's amended complaint.
¶ 30 III. CONCLUSION
¶ 31 For the reasons stated, we affirm the judgment of the circuit court of Williamson County dismissing the plaintiff's amended complaint.
¶ 32 Affirmed.