Hodges v. Williams

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).

2022 IL App (3d) 200046-U

Order filed June 30, 2022
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2022

RICHARD HODGES, ) Appeal from the Circuit Court
) of the 12th Judicial Circuit,
Plaintiff-Appellant, ) Will County, Illinois.
)
v. )
)
MICHELLE A. WILLIAMS, SERGEANT ) Appeal No. 3-20-0046
AL TAYLOR, and RANDY PFISTER, ) Circuit No. 18-CH-78
)
Defendants-Appellees )
)
(MICHELLE A. WILLIAMS, SERGEANT )
AL TAYLOR, ANNA MCBEE, and RANDY )
PFISTER, ) Honorable
) Brian E. Barrett,
Defendants). ) Judge, Presiding.

____________________________________________________________________________

JUSTICE LYTTON delivered the judgment of the court.
Justice Schmidt concurred in the judgment.
Justice McDade concurred in part and dissented in part.
____________________________________________________________________________

ORDER

¶1 Held: (1) Trial court properly dismissed inmate’s section 1983 claims against defendants
in their official capacities;
(2) Trial court properly dismissed section 1983 claims against warden in his
individual capacity where inmate failed to allege sufficient facts to support his
 claim that the warden was personally responsible for the deprivation of his
constitutional rights;
(3) Trial court erred in dismissing section 1983 retaliation claim against
correctional officers’ in their individual capacities where inmate sufficiently pled
his first amendment activity was at least a motivating factor in correctional officers’
decision to take retaliatory action against him; and
(4) Dismissal of state claims alleging negligence and intentional infliction of
emotional distress were properly dismissed under doctrine of sovereign immunity.

¶2 Plaintiff Richard Hodges, an Illinois Department of Corrections inmate, filed a pro se

complaint against correctional officers Michelle Williams and Sergeant Al Taylor, and Stateville

Correctional Center (Stateville) Warden Randy Pfister (defendants), alleging that they violated his

constitutional rights under section 1983 of the federal Civil Rights Act (42 U.S.C. § 1983 (2012))

and requesting monetary damages and injunctive relief. In addition to his constitutional claims,

Hodges asserted claims of negligence and intentional infliction of emotional distress against

defendants and a claim against the State of Illinois under a theory of respondeat superior. The

circuit court of Will County granted defendant’s motion to dismiss pursuant to section 2-619.1 of

the Code of Civil Procedure (Code) (735 ILCS 5/2-619.1 (West 2018)) and dismissed Hodge’s

first amended complaint with prejudice. Hodges appeals, challenging the trial court’s ruling and

claiming that the court’s dismissal with prejudice was improper. We affirm in part, reverse in part,

and remand to the trial court for further proceedings.

¶3 I. BACKGROUND

¶4 In 2016, Hodges was an inmate at the Stateville prison. On March 29, 2016, following a

report that a book had been removed from the prison law library without authorization, correctional

officer Williams searched Hodges’ cell at the direction of Sergeant Taylor. During the search,

Williams found the items that had been taken from the law library, as well as a bag of homemade

alcohol, a sharpened blade that appeared to be a razorblade, sexually explicit materials, and

prescription medication that belonged to another inmate. Hodges was then told to pack a

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 “segregation bag” because he was going to be held in segregation pending disciplinary action.

Hodges packed pain medication and three medical braces that he used for his wrist, elbow, and

abdomen. According to Hodges’ complaint, a Stateville treating physician prescribed the braces

to address a medical issue involving lesions on Hodges’ skin. In his bag, Hodges also packed the

medical permits for the braces, signed the treating physician, and two large envelopes containing

legal documents related to his pending postconviction petition.

¶5 While Sergeant Taylor and other correctional officers were escorting Hodges to

segregation, Williams searched his bag. The bag was returned to Hodges four hours later. Hodges

claimed that his pain medication, medical braces and legal documents had been removed. Hodges

admitted that some of the legal paperwork was returned to him a few weeks later but claimed that

a large portion of the documents remained missing.

¶6 On April 29, 2016, Hodges filed a grievance complaining that Williams and Taylor “threw

away” his missing items. He wanted his items returned and requested money damages. A grievance

counselor filed a written response to Hodges’ claims on May 10, 2016. In his response, the

counselor stated that “according to c/o Williams and c/o Taylor, [Hodges’] property was packed

appropriately and inventoried” and that “proper documentation was filled out and sent with

[Hodges’] property.”

¶7 On September 5, 2016, Hodges filed an emergency grievance directly with Warden Pfister.

The grievance alleged the same facts previously set forth in the April 29 grievance, claiming that

Williams and Taylor had confiscated his prescription medication and his medical braces and

destroyed some of his legal materials. Pfister reviewed the grievance on September 8, 2016, and

denied it.

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¶8 On October 18, 2016, a grievance officer reviewed the grievance Hodges originally filed

in April. The officer reported that, according to medical records, Hodges was seen by medical staff

on April 14, 2016, and April 18, 2016, and that new medication was prescribed to him. Records

also indicated that Hodges received another elbow brace on September 2, 2016, and a wrist brace

on September 13. In light of these findings, the officer recommended that the grievance be denied,

and Pfister concurred in the recommendation.

¶9 In January 2018, Hodges filed an amended complaint for administrative review in the Will

County circuit court. The complaint included six counts and named Williams, Taylor, and Pfister

as defendants in their individual and official capacities. In counts I, II, and III, Hodges asserted

constitutional claims under section 1983, and in counts IV, V, and VI, he alleged state law claims,

as follows:

¶ 10 In count I, Hodges claimed that defendants violated his rights under the eighth amendment

rights by acting with deliberate indifference to his serious medical needs and interfering with his

medical treatment and care. He claimed that Pfister showed deliberate indifference to his medical

needs by (1) deliberately disregarding his “emergency grievance,” (2) allowing Williams and

Taylor to engage in intentional harmful acts against him, and (3) failing to act. In addition, Hodges

claimed that Williams and Taylor knew he needed his medication and medical braces and knew

their failure to provide such items would cause him severe pain and suffering. He sought

preliminary and permanent injunctions barring defendants from taking his medication and medical

braces in the future without consulting a physician. He also requested judgment against defendants

for compensatory and punitive damages.

¶ 11 Count II claimed that Williams and Taylor retaliated against him for exercising his first

amendment rights by destroying his legal documents and interfering with his medical care.

4
 According to the allegations in support of his retaliation claim, Hodges informed “F-house Officer

Brewer” that his items had been removed from his bag and that he needed his medication and

medical braces to manage his pain. He also told Brewer that he needed the legal documents for an

upcoming hearing. Brewer subsequently informed Hodges that Williams and Taylor admitted that

they took the items and said that Hodges “could just file another grievance about it.” Hodges

asserted that Williams and Taylor’s adverse action of taking his medication and braces caused him

physical pain and suffering. He further alleged that by destroying his legal papers, Williams and

Taylor interfered with his ability to present evidentiary support in his postconviction proceedings,

which resulted in a hearing that was fundamentally unfair. Hodges claimed that Williams and

Taylor acted intentionally and in retaliation for prior grievances he filed against other correctional

officers.

¶ 12 In count III, Hodges claimed that defendant Pfister failed to intervene to protect Hodges

from the constitutional violations alleged in counts I and II, and that Pfister’s actions were

undertaken “with malice and with reckless indifference to [Hodges’] rights.”

¶ 13 Counts IV, V, and VI involved state law claims. In counts IV and V, Hodges alleged

negligence and intentional infliction of emotional distress. In the alternative, Hodges claimed that

defendants acted with indifference to his serious medical and legal needs. In count VI, Hodges

reasserted liability based on respondeat superior. At the conclusion of his complaint, Hodges

requested that the court enter judgment in his favor and against defendants, “awarding

compensatory damages, punitive damages, [and] attorney fees.”

¶ 14 Defendants moved to dismiss Hodges amended complaint under section 2-619.1 of the

Code. They argued that Hodges’ claims against defendants in their official capacities were barred

by the doctrine of sovereign immunity and that his request for injunctive relief should be dismissed

5
 as moot. In the alternative, defendants argued that Hodges complaint should be dismissed pursuant

to section 2-615 of the Code because his claims failed to allege facts indicating that defendants

deprived him of any constitutional rights during the March 29 “shakedown” or that Pfister was

personally involved in the alleged misconduct.

¶ 15 The trial court granted defendants’ motion, holding that it lacked subjected matter

jurisdiction over several claims based on the doctrine of sovereign immunity because defendants

were acting within the scope of their employment. The court noted that the doctrine applied

because defendant failed to allege sufficient facts to support his claim that defendants’ conduct

was willful and wanton or performed outside their official capacities. It concluded that Hodges

was required to file his claims in the Court of Claims and dismissed his complaint with prejudice.

¶ 16 II. ANALYSIS

¶ 17 Hodges challenges the trial court’s dismissal of his amended complaint with prejudice

under section 2-619.1 of the Code. He argues that sovereign immunity does not apply in this case

and that his amended complaint provided sufficient facts to otherwise demonstrate that it is legally

sufficient.

¶ 18 A motion to dismiss pursuant to section 2-619.1 allows a party to request dismissal of a

complaint under both sections 2-615 and 2-619 of the Code. Schloss v. Jumper, 2014 IL App (4th)

121086, ¶ 15. In reviewing a motion to dismiss under section 2-615 or section 2-619, we must

accept as true all well-pleaded facts and reasonable inferences that can be drawn from those facts

and construe the allegations in the complaint in a light most favorable to the plaintiff. Marshall v.

Burger King, 222 Ill. 2d 422, 429 (2006).

¶ 19 “A section 2-615 motion to dismiss challenges the legal sufficiency of a complaint based

on defects apparent on its face.” Doe v. Coe, 2019 IL 123521, ¶ 31. A cause of action should not

6
 be dismissed under section 2-615 unless it is clearly apparent that no set of facts can be proved

that would entitle the plaintiff to recovery. Marshall, 222 Ill. 2d at 429. Nevertheless, Illinois is a

fact-pleading jurisdiction. Kucinsky v. Pfister, 2020 IL App (3d) 170719, ¶ 55. Thus, while a

plaintiff is not required to set forth evidence in the complaint, he or she must allege facts sufficient

to bring a claim within a legally recognized cause of action. Marshall, 222 Ill. 2d at 429-30. Mere

conclusions of law or facts unsupported by specific factual allegations in a complaint are

insufficient to overcome a motion to dismiss for failure to state a cause of action upon which relief

may be granted. Midwest Medical Records Ass’n v. Brown, 2018 IL App (1st) 163230, ¶ 12.

¶ 20 On the other hand, a motion to dismiss under section 2-619 admits the legal sufficiency of

a claim, but asserts an affirmative matter that defeats it. Bjork v. O’Meara, 2013 IL 114044, ¶ 21.

For example, a defendant may move to dismiss a plaintiff’s claim under section 2-619 on the

ground that the circuit court lacks subject matter jurisdiction or based on mootness. 735 ILCS 5/2-

619(a)(1), (a)(9) (West 2018).

¶ 21 The trial court’s dismissal of a complaint under 2-619.1 is reviewed de novo. Morris v.

Harvey Cycle & Camper, Inc., 392 Ill. App. 3d 399, 402 (2009). On appeal, we may affirm an

order dismissing a complaint on any basis supported by the record, notwithstanding the trial court’s

rationale. Kucinsky, 2020 IL App (3d) 170719, ¶ 34.

¶ 22 A. Section 1983 Claims

¶ 23 In counts I, II, and III, Hodges alleged that defendants violated his constitutional rights

under section 1983 in both their official and individual capacities in that they (1) acted with

deliberate indifference to his medical needs in violation of his eighth amendment rights by taking

his prescription medication and his medical braces, (2) retaliated against him for exercising his

7
 first amendment rights by destroying his legal documents, and (3) failed to intervene to protect his

constitutional rights.

¶ 24 1. Official Capacity Claims against Defendants

¶ 25 Section 1983 protects citizens’ constitutional rights, privileges, and immunities from being

infringed upon by state actors by allowing a plaintiff to bring a civil rights claim for deprivation

of constitutional or statutory rights under the color of law. 42 U.S.C. § 1983 (2012); Bilski v.

Walker, 392 Ill. App. 3d 153, 157 (2009). To establish a cause of action under section 1983, a

plaintiff must demonstrate that (1) the person committing the conduct was acting under color of

state law, and (2) his or her conduct deprived the plaintiff of rights, privileges or immunities

secured by the constitution or the laws of the United States. Id. Both federal and state courts have

recognized that a “person” under section 1983 excludes any state or any state actor who is acting

in his or her official capacity. Will v. Michigan Department of State Police, 491 U.S. 58, 71 (1989);

Kucinsky, 2020 IL App (3d) 170719, ¶ 34.

¶ 26 In this case, the Department of Corrections is a state entity. See Kucinsky, 2020 IL App

(3d) 170719, ¶ 47. As a result, a lawsuit against Pfister in his official capacity as the warden of a

Department of Corrections facility is a suit against the State. Id. Moreover, a claim against a state

employee is a claim against the State where (1) there are no allegations that the employee acted,

albeit wrongfully, beyond the scope of his or her authority, (2) the duty alleged to have been

breached was not owed to the public generally, and (3) the employee’s actions involve matters

ordinarily within his or her official functions for the State. Murphy v. Smith, 844 F.3d 653, 658

(7th Cir. 2016). Thus, the claims against Williams and Taylor in their official capacities as state

employees cannot stand. See Kucinsky, 2020 IL App (3d) 170719, ¶ 51 (noting that acts performed

by state employees within the scope of their official duties are protected by Illinois’ sovereign

8
 immunity). We therefore affirm the trial court’s dismissal of Hodges’ section 1983 claims against

defendants in their official capacities.

¶ 27 2. Individual Capacity Claims against Pfister

¶ 28 To recover damages pursuant to any theory under section 1983, a plaintiff must establish

that a defendant was personally responsible for the constitutional deprivation. Pepper v. Village of

Oak Park, 430 F.3d 805, 810 (7th Cir. 2005); see, e.g., Polk County v. Dodson, 454 U.S. 312, 325

(1981) (respondeat superior theory is not applicable in a section 1983 action). The defendant must

know about the unlawful conduct and facilitate it, approve it, or condone it, acting knowingly or

with deliberate reckless indifference. Kucinsky, 2020 IL App (3d) 170719, ¶ 73. The alleged

mishandling of a grievance by a party who otherwise did not cause or participate in the underlying

conduct does not state a claim for relief. Owens v. Hinsley, 635 F.3d 950, 953 (7th Cir. 2011).

There must be some connection or affirmative link between the conduct complained of and the

individual against whom the section 1983 claim is made. Kucinsky, 2020 IL App (3d) 170719, ¶

73. At a minimum, an inmate must establish that an official failed to act “despite his knowledge

of a substantial risk of serious harm.” Farmer v. Brennan, 511 U.S. 825, 842 (1994).

¶ 29 Here, Hodges alleged that Pfister showed “deliberate indifference to his serious medical

needs” and failed to intervene with “malice and with reckless indifference” by denying his

emergency grievance in violation of his eighth amendment rights. However, he provided no insight

into Pfister’s conduct or his direct participation in the deliberate deprivation of his rights. He

merely alleged that Pfister acted with malice and reckless indifference by denying his emergency

grievance. Hodges allegations that Pfister reviewed and denied his emergency grievance, however,

do not show that Pfister participated in the conduct that gave rise to the grievance, as is necessary

9
 to establish section 1983 liability. See Owens, 635 F.3d at 953 (denial of grievance does not

establish prison official participated in the underlying conduct).

¶ 30 Moreover, a review of the record demonstrates that Pfister had no knowledge of substantial

risk of serious harm. At the time Pfister reviewed the emergency grievance, Hodges’ prescription

medication had been renewed and his medical braces had been replaced. Thus, he did not face

continued risk of harm when Pfister denied his grievance. Given that Hodges’ failed to provide

any factual allegations to support his conclusory assertions that Pfister deliberately and maliciously

disregarded his needs, we affirm the dismissal of Hodges’ section 1983 claims against Pfister

individually. See Marshall, 222 Ill. 2d at 429-30 (plaintiff must allege facts, not mere conclusions,

to bring a claim within a legally recognized cause of action).

¶ 31 3. Individual Capacity Claims against Williams and Taylor

¶ 32 Next, Hodges alleged that Williams and Taylor (1) acted with deliberate indifference to his

serious medical needs by taking his medication and medical braces, and (2) retaliated against him

to suppress his first amendment rights by destroying legal papers related to his postconviction

proceedings.

¶ 33 Unlike the individual claims against Pfister, Hodges included facts in his complaint

alleging that Williams and Taylor were personally involved in these constitutional violations.

Defendants do not contest that these facts were well-pleaded and established that Williams and

Taylor were directly responsible for the alleged deprivations. See id. (at the motion to dismiss

stage, we must accept as true all well-pleaded facts). The disputed issue is whether the individual

claims against Williams and Taylor state a legally recognizable cause of action under section 1983.

¶ 34 a. Deliberate Indifference

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¶ 35 To state an eighth amendment claim for deliberate indifference to a serious medical need,

an inmate must allege that (1) the defendant was responsible for the inmate’s medical care, (2) the

defendant knowingly and unreasonably disregarded an objectively intolerable risk of harm to the

prisoner’s health and safety, and (3) the prisoner suffered serious harm as a result. McNeil v.

Brewer, 304 Ill. App. 3d 1050, 1053 (1999). The claim that a prison official acted with deliberate

indifference to an inmate’s serious health risk includes both an objective and subjective

component. LaBrec v. Walker, 948 F.3d 836, 843 (7th Cir. 2020) (citing Farmer, 511 U.S. at 838).

First, the harm to which the inmate was exposed must be objectively serious. Id. Second, the prison

official must have had actual knowledge of that risk and consciously disregarded it. Duckworth v.

Ahmad, 532 F.3d 675, 679 (7th Cir. 2008).

¶ 36 The deliberate indifference standard reflects a mental state more blameworthy than

negligence, or even gross negligence; “the conduct must be reckless in the criminal sense.” Lee v.

Young, 533 F.3d 505, 509 (7th Cir. 2008). For example, deliberate indifference may occur where

a prison official, having knowledge of a significant risk to inmate health or safety, administers

“blatantly inappropriate” medical treatment. Edwards v. Snyder, 478 F.3d 827, 832 (7th Cir. 2007).

Prison officials who respond reasonably to a substantial risk of harm are not liable, regardless of

whether the harm was averted. LaBrec, 948 F.3d at 843.

¶ 37 In this case, Hodges failed to allege facts to support a claim for deliberate indifference to

his medical needs. There are no allegations in the complaint showing that Williams and Taylor

were subjectively aware of and disregarded a substantial risk of harm. Hodges alleged that

Williams took his items during her search, that Hodges later told Brewer he needed the items for

his pain, and that Brewer told him that Williams and Taylor removed the items from his cell. These

11
 allegations do not support Hodge’s conclusion that defendants intentionally and recklessly

disregarded his health.

¶ 38 Moreover, Hodges did not allege any facts to support the claim that Williams and Taylor

knew that Hodges faced a substantial risk of harm when they removed the items, or that they knew

Hodges would have difficulty procuring their return. In fact, according to the counselor’s response

to Hodges’ grievance, Williams and Taylor believed the items had been properly inventoried.

Hodges’ claims of deliberate indifference are further refuted by his own factual allegations that

prison officials arranged for him to see Stateville medical staff and replaced the missing

medication and braces shortly after the search. Under these circumstances, Hodges has not stated

an eighth amendment claim for deliberate indifference against Williams and Taylor.

¶ 39 b. Retaliation

¶ 40 To state a section 1983 claim for retaliation under the first amendment, a plaintiff must

allege that prison officials retaliated against him or her for exercising a constitutionally protected

right. Kucinsky, 2020 IL App (3d) 170719, ¶ 65. “In asserting a first amendment retaliation claim,

an inmate must allege that (1) he engaged in activity protected by the first amendment, (2) he

experienced an adverse action that would likely deter first amendment activity in the future, and

(3) the first amendment activity was at least a motivating factor in the defendants’ decision to take

the retaliatory action.” Id.

¶ 41 Defendants do not dispute that Hodges sufficiently alleged he was engaged in activity

protected by the first amendment. Inmates have a first amendment right to file nonfrivolous

grievances against prison officials. See id. ¶ 66 (citing Gomez v. Randle, 680 F.3d 859, 866 (7th

Cir. 2012)). Therefore, Hodges sufficiently alleged that he engaged in constitutionally protected

conduct.

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¶ 42 Hodges also sufficiently alleged that he experienced adverse action that would likely deter

first amendment activity in the future. An “adverse action” is one “capable of deterring a person

of ordinary firmness from exercising his or her constitutional rights.” Bridges v. Gilbert, 557 F.3d

541, 552 (7th Cir. 2009). The relevant standard for determining the effect retaliation would have

on an ordinary person is objective, not subjective. Fillmore v. Walker, 2013 IL App (4th) 120533,

¶ 50. In his complaint, Hodges specifically stated that the adverse action of taking his medication

and braces caused him physical pain and suffering. He further alleged that by destroying his legal

papers, Williams and Taylor interfered with his ability to present adequate evidence in his

postconviction proceedings and denied him a fair evidentiary hearing. Accepting the allegations

as true, we can infer that the adverse actions William and Taylor allegedly committed against

Hodges would deter an ordinary person from exercising his first amendment right to file another

grievance.

¶ 43 Additionally, Hodges met the pleading requirements for demonstrating that his first

amendment activity was at least a motivating factor in Williams and Taylor’s decision to take

retaliatory action. “An act in retaliation for the exercise of a constitutionally protected right is

actionable under section 1983 even if the act, when taken for different reasons, would have been

proper.” Howland v. Kilquist, 833 F.2d 639, 644 (7th Cir. 1987). In this case, Hodges alleged that

after he filed numerous grievances against other correctional officers, Williams and Taylor

conducted a “shake-down” of his cell and instructed him to pack a segregation bag. The

correctional officers then removed his medication and medical braces from the bag, destroyed

some necessary legal papers in the bag, and, upon subsequent inquiry, referenced Hodges’

proclivity to file grievances. We conclude that these allegations are sufficient to establish that

Hodge’s first amendment activity was at least a motiving factor in defendants’ decision to take

13
 retaliatory action. See Kucinsky, 2020 IL App (3d) 170719, ¶¶ 70-71 (defendants’ acts of

conducting a cell shakedown and placing inmate in segregation, coupled with defendants’

comments, were sufficient to withstand a motion to dismiss inmate’s section 1983 retaliation

claim). Hodges, therefore, sufficiently alleged a first amendment retaliation claim against

defendants Williams and Taylor. Consequently, we reverse the trial court’s dismissal of count II

against Williams and Taylor.

¶ 44 B. State Law Claims

¶ 45 In counts IV, V, and VI, Hodges asserted claims for negligence and intentional infliction

of emotional distress against defendants and the State of Illinois.

¶ 46 The State Lawsuit Immunity Act provides, with limited exceptions that do not apply here,

that “the State of Illinois shall not be made a defendant or party in any court.” 745 ILCS 5/1 (West

2018). Furthermore, section 8(d) of the Court of Claims Act grants the Court of Claims exclusive

jurisdiction over “[a]ll claims against the State for damages in cases sounding in tort, if a like cause

of action would lie against a private person or corporation in a civil suit***.” 705 ILCS 505/8(d)

(West 2018). The purpose of these sovereign immunity provisions is to protect the State from

interference with the performance of governmental functions and to preserve and protect state

funds. Leetaru v. Board of Trustees of University of Illinois, 2015 IL 117485, ¶ 47. Where

sovereign immunity applies, the circuit court is without jurisdiction. Brandon v. Bonell, 368 Ill.

App. 3d 492, 503 (2006).

¶ 47 Whether an action is one against the State and therefore one that must be brought in the

Court of Claims, depends on the issues involved in the case and the relief sought. Leetaru, 2015

IL 117485, ¶ 45. The application of sovereign immunity cannot be avoided by making an action

14
 nominally against the employees or agents of the State when the real claim is against the State of

Illinois itself. Id.

¶ 48 A tort claim against a state employee will be considered one against the State where (1)

there is no allegation that the employee of the State acted beyond the scope of his or her authority,

(2) the duty alleged to have been breached was not owed to the public generally independent of

the defendant’s State employment, and (3) the complained-of actions involve matters ordinary

within the employee’s normal and official functions of the State. Jinkins v. Lee, 209 Ill. 2d 320,

330 (2004). The doctrine of sovereign immunity “affords no protection, however, when it is

alleged that the State’s agent acted in violation of statutory or constitutional law or in excess of his

authority, and in those instances an action may be brought in circuit court.” Healy v. Vaupel, 133

Ill. 2d 295, 308 (1990). When a tort claim is brought against a state employee in his or her

individual capacity but judgment in the plaintiff’s favor could subject the State to liability, the

claim must be filed in the Court of Claims. Currie v. Lao, 148 Ill. 2d 151, 158 (1992).

¶ 49 Here, counts IV and V of Hodges’ complaint do not allege that the correction officers or

the warden acted beyond the scope of their authority or that their actions fell outside of their normal

and official functions. Instead, reading Hodges’ complaint liberally, his tort claims appear to center

on whether defendants breached a duty of care they owed independently of their state employment.

¶ 50 The determination of whether an employee has breached a duty owed independently of his

employment is guided by the “source of the duty” test established by our supreme court in Currie.

See Jinkins, 209 Ill. 2d at 331 (citing Currie, 148 Ill. 2d at 158-60). According to that test, to

determine if sovereign immunity protects an employee for his own act of negligence, we must look

to the source of the duty the employee is charged with breaching in committing the negligent

act. Currie, 148 Ill. 2d at 159. Where the charged act of negligence arises out of a breach of a duty

15
 that is imposed solely by virtue of the defendant’s state employment, sovereign immunity will bar

the plaintiff’s claim in circuit court. Id.

¶ 51 In this case, Hodges’ complaint alleged that defendants breached a duty of care in

conducting the shakedown of his cell, imposing subsequent segregation, and denying his

emergency grievance. The source of the duty, in each situation, is imposed solely by virtue of

defendants’ state employment. Thus, the trial court properly dismissed the tort claims based on

sovereign immunity. The Court of Claims has exclusive jurisdiction over Hodges’ state law claims

because they are tort claims against the State and Hodges sought to hold the State liable for

monetary damages. See 705 ILCS 505/8(d) (West 2018) (Court of Claims has exclusive

jurisdiction over “[a]ll claims against the State for damages in cases sounding in tort”).

¶ 52 Hodges argues that sovereign immunity does not apply because defendants violated

department policies and negligently removed his medication, medical braces, and legal documents

from his bags. However, sovereign immunity may bar a tort claim even if the state employee’s

conduct was a violation of state policy or misguided and irresponsible. See Sellers v. Rudert, 395

Ill. App. 3d 1041, 1049 (2009) (negligence action against university coaches properly dismissed

where student failed to establish that coaches owed duty to student independent of their state

employment); Cortright v. Doyle, 386 Ill. App. 3d 895, 904-05 (2008) (intentional tort claim

against Department of Children and Family Services supervisors was barred by sovereign

immunity where the alleged conduct, no matter how misguided, was work-related and unique to

their capacity as supervisors). The threshold question is whether the employees intended to

perform some function within the scope of their authority when they committed the legal wrong.

Jackson v. Alverez, 358 Ill. App. 3d 555, 561 (2005). Here, defendants were performing their jobs

as state employees within the purview of their normal and official functions when the alleged

16
 conduct occurred. Consequently, the doctrine of sovereign immunity bars Hodges’ state law

claims, except in the Court of Claims.

¶ 53 III. CONCLUSION

¶ 54 For the foregoing reasons, the judgment of the circuit court of Will County is affirmed in

part and reversed in part, and the cause is remanded for further proceedings.

¶ 55 Affirmed in part and reversed in part; cause remanded.

¶ 56 JUSTICE McDADE, concurring in part and dissenting in part:

¶ 57 I concur with all portions of the majority decision except the finding that Hodges has failed

to state a claim of deliberate indifference against defendants, Michelle Williams and Sergeant Al

Taylor, in their individual capacities. The two bases asserted for the majority’s finding are that:

(1) “There are no allegations in the complaint showing that Williams and Taylor were subjectively

aware of and disregarded a substantial risk of harm.” and (2) “Hodges did not allege any facts to

support the claim that Williams and Taylor knew that Hodges faced a substantial risk of harm

when they removed the items, or that they knew Hodges would have difficulty procuring their

return.”

¶ 58 To reiterate the standard under which we conduct our de novo review: “we must accept as

true all well-pleaded facts and reasonable inferences that can be drawn from those facts and

construe the allegations in the complaint in a light most favorable to the plaintiff. Marshall v.

Burger King, 222 Ill.2d 422, 429 (2006).” Supra ¶ 18. Based on this standard and considering the

facts alleged in Hodges’ complaint, I would reach the opposite conclusion and find the allegations,

together with reasonable inferences, are sufficient to state the claim.

¶ 59 The majority finds that Hodges has made no allegations showing that Williams and Taylor

“were subjectively aware of and disregarded a substantial risk of harm.” Supra ¶ 27. I do not agree.

17
 Hodges, as to both defendants, alleged that he was directed to self-pack a “segregation bag” with

items that he was “allowed” to take with him. Among the allowed items he packed were his

prescribed (misspelled as “proscribed”) pain medication and “permitted” medical supports (also

prescribed, Complaint, ¶ 24). He further alleged that the permits for these items, which were elbow,

wrist, and abdominal braces, were properly on file. In sum, all of the items had been prescribed by

one or more doctors; all were “allowed,” and the support items were “permitted” for his possession.

¶ 60 These facts would unambiguously indicate that a medical provider had found them

medically necessary and that Hodges’ possession and use of the items while in segregation was

authorized. More significantly, the fact they had been prescribed would strongly imply, and we

could therefore reasonably infer, that Hodges experienced a level of pain requiring medical

intervention and some form of joint and/or muscle impairment requiring stabilization. The

allegations that they were “permitted” and that the permits were on file allow us to reasonably

infer that Hodges, while in segregation, was allowed to retain and use the pain medication at the

dosage and on the schedule prescribed; was allowed to retain and use the braces/supports on the

appropriate schedule; and that Williams and Taylor knew of that permission. Moreover, none of

the facts set out in Hodges’ complaint states or implies that Williams or Taylor possessed a level

of medical expertise or occupied positions in the prison command structure authorizing them to

countermand either the medical prescriptions/orders or the permits. As to the majority’s assertion

that there were “no facts to support the claim that Williams and Taylor***knew Hodges would

have difficulty procuring [the items’] return;” Hodges alleged they knew he was in segregation;

they had taken him there. It would be reasonable to infer they knew how segregation works and

they would have anticipated or predicted the futility of Hodges’ alleged interaction with C/O

Brewer (Complaint, ¶¶ 18-20).

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¶ 61 The majority also asserts that “Hodges’ claims of deliberate indifference are further refuted

by his own factual allegations that prison officials arranged for him to see Statesville medical staff

and replaced the missing medication and braces shortly after the search.” (Emphasis added.)

Again, I disagree.

¶ 62 In his complaint Hodges alleged his medical supplies were removed from his segregation

bag on March 29 (Complaint, ¶¶ 14-16); that, seeking renewal of his pain medication and

reissuance of his medical supports, he was seen 3 weeks later, on April 18, by Dr. Williams

(Complaint, ¶ 22); and 10 to 12 days thereafter (April 28-30) he received pain medication but no

braces (Complaint, ¶ 23). He has thus alleged he was without his prescribed medication for 31 to

33 days and his support items for even longer.

¶ 63 I suppose “shortly” is in the eye of the beholder. Certainly, I would not so characterize a

full month or more without pain medication prescribed as medically necessary by a doctor if it

were my pain relief at issue and I cannot find that to be a reasonable inference from the allegations.

¶ 64 On a final note, Hodges further alleges that the medical supports/braces had been

prescribed to avoid the necessity of replicating, on his left arm, surgery he had already had on his

right arm. (Complaint, ¶ 24). While, arguably, we cannot reasonably infer that specific information

was known to these defendants because we have no factual allegations giving rise to such an

inference, I would find that, as outlined above, the other allegations made by Hodges are sufficient

to support an Eighth Amendment claim for deprivation of these medical items.

¶ 65 I would find that Hodges’ allegations, taken as true, and inferences reasonably drawn from

them are sufficient to state a claim. And, if deemed not wholly sufficient as currently pled, they

are more than adequate to show the likely ability to state a viable claim and thus to merit a dismissal

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without prejudice and an opportunity to replead. I therefore respectfully dissent from the majority’s

contrary affirmance of the circuit court’s dismissal of this claim with prejudice.

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