                                  Illinois Official Reports

                                          Appellate Court



                               Black v. Dart, 2015 IL App (1st) 140402



Appellate Court              JAMES BLACK, Plaintiff-Appellant, v. TOM DART (COOK
Caption                      COUNTY SHERIFF), Defendant-Appellee.



District & No.               First District, Sixth Division
                             Docket No. 1-14-0402



Filed                        February 20, 2015



Held                         Where plaintiff filed a pro se suit against defendant sheriff for
(Note: This syllabus         damages plaintiff suffered from the sheriff’s alleged mistreatment but
constitutes no part of the   he did not assert any challenge to the sheriff’s immunity defense
opinion of the court but     throughout the proceedings below and apparently conceded any such
has been prepared by the     argument on appeal, there was no basis to disturb the trial court’s entry
Reporter of Decisions        of summary judgment for the sheriff on appeal, especially in view of
for the convenience of       the plain language of sections 4-103 and 2-201 of the Tort Immunity
the reader.)                 Act and the lack of any genuine issue of material fact.




Decision Under               Appeal from the Circuit Court of Cook County, No. 12-M1-301215;
Review                       the Hon. Joseph Panarese, Judge, presiding.




Judgment                     Affirmed.
     Counsel on               Joel A. Flaxman and Kenneth N. Flaxman, both of Chicago, for
     Appeal                   appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Daniel Gallagher,
                              Michael L. Gallagher, and Michael D. Warner, Assistant State’s
                              Attorneys, of counsel), for appellee.



     Panel                    PRESIDING JUSTICE HOFFMAN delivered the judgment of the
                              court, with opinion.
                              Justices Hall and Rochford concurred in the judgment and opinion.


                                               OPINION

¶1         The plaintiff, James Black, brought a pro se lawsuit against the defendant, Tom Dart,
       sheriff of Cook County (Sheriff), for damages resulting from the plaintiff’s alleged
       mistreatment while confined at the Cook County department of corrections (DOC). The trial
       court granted summary judgment in favor of the Sheriff under section 2-1005 of the Code of
       Civil Procedure (Code) (735 ILCS 5/2-1005 (West 2010)). The plaintiff now appeals,
       contending that the court erred by (1) rejecting undisputed evidence that he had opted out of
       a pending federal class action suit based upon the same subject matter; and (2) entertaining a
       motion for involuntary dismissal under section 2-619(a)(3) of the Code (735 ILCS
       5/2-619(a)(3) (West 2012)) that was filed after the time for pleading had passed. For the
       following reasons, we affirm.
¶2         The facts articulated below are substantially undisputed. The plaintiff was arrested in
       April 2012. He was placed in Division 3 of the DOC from April 15, 2012 until April 21,
       2012, at which point he was transferred to DOC Division 5, where he remained until his
       release on May 1, 2012.
¶3         On July 3, 2012, he filed a pro se amended complaint, alleging that, during the time he
       was held in Division 3, he was unable to take a daily shower, use the telephone or purchase
       personal items from the commissary. He further alleged that, upon his release, the DOC
       failed to return his clothing to him.
¶4         On July 27, 2012, the Sheriff filed an appearance and jury demand, and the court entered
       an order scheduling discovery and assigning the case to mandatory arbitration. On October
       22, 2012, following arbitration, the Sheriff filed an answer and affirmative defenses, in which
       he asserted that his conduct was at all times reasonable and not in violation of the plaintiff’s
       constitutional rights and also that the Sheriff was immune from suit under various sections of
       the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS
       10/1-101 et seq. (West 2010)).
¶5         On April 13, 2013, following the close of discovery, the Sheriff filed a “motion for
       judgment on the pleadings” and also for involuntary dismissal under section 2-619(a)(3) (735
       ILCS 5/2-619(a)(3) (West 2012)). In support of judgment on the pleadings, the Sheriff

                                                  -2-
       argued that, as a matter of law, he was absolutely shielded from liability under the Act with
       regard to each of the claims alleged by the plaintiff, including the loss of the plaintiff’s
       clothing. In particular, the Sheriff asserted that, as a public entity, employee or employer, he
       (1) is not liable for failure to provide sufficient equipment, personnel, supervision or facilities
       in a jail; and (2) is not responsible for injuries arising from the discretionary acts of his
       employees or for claims resulting from matters involving policy determinations. As an
       additional and alternative basis for dismissal of the claim for the plaintiff’s lost clothing, the
       Sheriff argued that, under section 2-619(a)(3) of the Code, there was “another action pending
       between the same parties for the same cause,” namely, a class action suit that was currently
       pending in federal court brought by formerly incarcerated individuals against the Sheriff
       (Elizarri v. Sheriff of Cook County, No. 07-cv-2427) (hereinafter, Elizarri).
¶6          On August 8, 2013, with the assistance of counsel, the plaintiff filed a response to the
       motion for judgment on the pleadings, arguing that he had “opted out” of the federal class
       action and wished to litigate his claim about the “unlawful conversion” of his clothing in the
       instant state court proceeding. The plaintiff made no counterargument in response to the
       Sheriff’s assertion that the plaintiff’s claims were barred under the Act. In reply, the Sheriff
       disputed that the plaintiff had opted out of the class action, attaching documents purporting to
       show that the opt-out period had expired and that the plaintiff’s name did not appear on the
       list of individuals who had opted out of the class action.
¶7          On August 22, 2013, the trial court entered an order denying the motion for judgment on
       the pleadings under Delgatto v. Brandon Associates, Ltd., 131 Ill. 2d 183, 188-89 (1989), on
       the basis that it should properly have been brought as a motion for summary judgment.
       Accordingly, on September 5, 2013, the Sheriff filed his motion for summary judgment
       under section 2-1005 of the Code (735 ILCS 5/2-1005 (West 2012)) again asserting that: (1)
       he was absolutely immune from the plaintiff’s state claims under the Act (745 ILCS 10/2-201
       (West 2010)); and (2) the plaintiff’s claims for lost property should have been dismissed
       because those claims were the subject of the Elizarri class action against the Sheriff and the
       plaintiff was a putative member of that class.
¶8          On September 19, 2013, with all parties present, the court entered an order setting the
       remaining briefing schedule for the summary judgment motion, with the plaintiff’s response
       due October 4, 2013, and the Sheriff’s reply due October 11, 2013. The matter was set for a
       hearing on November 21, 2013.
¶9          On October 11, 2013, with no response brief having been filed by the plaintiff, the Sheriff
       filed a reply in support of his motion for summary judgment, memorializing that the court
       had, in the presence of the plaintiff, set the briefing schedule for the motion and warned the
       plaintiff that he was required to file a written responsive brief to the summary judgment
       motion. As the plaintiff’s response was over seven days late, the Sheriff requested that
       summary judgment be entered in his favor.
¶ 10        On November 15, 2013, a declaration was filed by one of the attorneys for the plaintiffs
       in the Elizarri class action suit, averring that, on August 8, 2013, the plaintiff had tendered
       notice to him of his desire to “opt out” of that case. Apart from the plaintiff’s opt-out notice,
       there were no other documents or pleadings accompanying the declaration.
¶ 11        On November 21, 2013, the court entered an order stating that, with the plaintiff having
       failed to appear, the Sheriff’s motion for summary judgment was granted and the complaint
       was dismissed “with prejudice.” The court further ordered the Sheriff to undertake a “house

                                                    -3-
       check” to verify that the plaintiff was not incarcerated at the time of the hearing. The order
       made no reference to the Sheriff’s alternative argument that the complaint should be
       dismissed based upon the pendency of the Elizarri case.
¶ 12       On January 2, 2014, represented by counsel, the plaintiff presented a motion to “vacate”
       the order of November 21, 2013, arguing that the court either should have “stayed this action
       or dismissed plaintiff’s property loss claim without prejudice to his participation in the
       federal class action.” The motion to vacate was denied, and the instant appeal followed.
¶ 13       The plaintiff’s sole assertions of error concern the trial court’s alleged dismissal of his
       lost clothing claim based upon the pendency of the Elizarri class action, which, according to
       the Sheriff’s argument below, constituted “another action *** between the same parties for
       the same cause,” thus warranting dismissal of the claim under section 2-619(a)(3) of the
       Code (735 ILCS 5/2-619(a)(3) (West 2012)). In particular, the plaintiff argues that the court
       (1) should not have entertained the section 2-619 motion in the first instance because it was
       untimely, and (2) disregarded “undisputed evidence,” in the form of the November 15, 2013,
       declaration by the plaintiff’s attorney, that the plaintiff had in fact opted out of the Elizarri
       lawsuit and elected to proceed with his claim in the circuit court.
¶ 14       Initially, we agree with the plaintiff that a motion for involuntary dismissal generally
       must be brought “within the time for pleading” (735 ILCS 5/2-619 (West 2012)), and that the
       Sheriff’s motion was filed many months after that time. However, based upon the record
       before us, the trial court never reached the merits of the section 2-619 motion; instead, it
       directed that the Sheriff assert his defenses in the form of a summary judgment motion under
       Code section 2-1005. Thereafter, being “fully advised on the premises” and with the
       November 15, 2013, declaration presumably before it, the court granted summary judgment
       for the Sheriff and dismissed the plaintiff’s complaint “with prejudice.” The basis for the
       court’s determination does not appear of record, although there is no reference to the earlier
       motion under section 2-619(a)(3) of the Code. Further, we note that throughout the summary
       judgment proceedings, the plaintiff raised no factual or legal dispute as to the Sheriff’s
       central argument, his claimed immunity from liability under the Act.
¶ 15       Regardless of the trial court’s rationale, we review the grant of summary judgment under
       a de novo standard. Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d 90,
       102 (1992). This court’s function is to determine whether the court correctly found that no
       genuine issue of material fact existed and that judgment for the moving party was proper as a
       matter of law. Makowski v. City of Naperville, 249 Ill. App. 3d 110, 115 (1993). As such, we
       may sustain the decision of the trial court on any basis justified by the record,
       notwithstanding the rationale employed by that court. Id.
¶ 16       The Act vests public entities and employees with “absolute immunity” from liability in
       tort arising from the “failure to provide a jail, detention or correctional facility, or if such
       facility is provided, for failure to provide sufficient equipment, personnel, supervision or
       facilities therein.” 745 ILCS 10/4-103 (West 2010); Jefferson v. Sheahan, 279 Ill. App. 3d
       74, 76 (1996). Under section 2-201 of the Act, a public employee in a position involving the
       determination of policy or the exercise of discretion is immunized from liability for any
       injury “resulting from his act or omission in determining policy when acting in the exercise
       of such discretion,” even if his discretion is abused. 745 ILCS 10/2-201 (West 2010). The
       supreme court has held that, in order to be protected under section 2-201, the public official
       or employee must show that the injury resulted from an act or omission involving both an

                                                   -4-
       exercise of discretion and a policy decision. Van Meter v. Darien Park District, 207 Ill. 2d
       359, 373 (2003). Conduct involving a “policy decision” includes that which requires the
       official to balance competing interests for the time and resources of his department. Id.
       “Discretionary” acts are those which are unique to the particular public office at issue, as
       opposed to ministerial duties which are dictated by regulations or other legal authority. Id. at
       371, 373.
¶ 17       In this case, the complaint alleged merely that the plaintiff suffered a “lack of services”
       while in custody and that he “did not receive[ ]” his clothing upon his release. The plaintiff
       does not dispute the Sheriff’s contention that decisions regarding the method of maintenance,
       storage, and return of the personal property of inmates are unique to the Sheriff’s office and
       require him to “make a judgment call” as to the proper allocation of time and other resources
       of his office. As indicated above, the plaintiff failed to assert any challenge to the Sheriff’s
       immunity defense throughout the proceedings below and concededly foregoes any such
       argument on appeal. Accordingly, based upon the plain language of sections 4-103 and 2-201
       of the Act and the lack of any genuine issue of material fact, we see no basis to disturb the
       allowance of summary judgment for the Sheriff.

¶ 18      Affirmed.




                                                  -5-
