                              In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 15-3384
CHARLES MURPHY,
                                                 Plaintiff-Appellee,

                                 v.

ROBERT SMITH and GREGORY FULK,
                                            Defendants-Appellants.
                     ____________________

          Appeal from the United States District Court for the
                      Southern District of Illinois
   No. 3:12-cv-00841-SCW — Stephen C. Williams, Magistrate Judge.
                     ____________________

  ARGUED NOVEMBER 3, 2016 — DECIDED DECEMBER 21, 2016
                     ____________________

   Before BAUER, MANION, and HAMILTON, Circuit Judges.
    HAMILTON, Circuit Judge. Plaintiff Charles Murphy was an
inmate in the Vandalia Correctional Center in Illinois. On July
25, 2011, correctional officers hit Murphy, fracturing part of
his eye socket, and left him in a cell without medical attention.
Murphy sued under 42 U.S.C. § 1983 and state-law theories.
A jury awarded him damages on some of those claims, includ-
ing some state-law claims, and the district court awarded at-
torney fees under 42 U.S.C. § 1988. Two of the defendants now
2                                                   No. 15-3384

appeal and challenge two aspects of the judgment. They argue
that state-law sovereign immunity bars the state-law claims
and that the Prison Litigation Reform Act requires that 25 per-
cent of the damage award be used to pay the attorney fee
award.
    We affirm on the sovereign immunity defense. The Illinois
doctrine of sovereign immunity does not apply to state-law
claims against a state official or employee who has violated
statutory or constitutional law. See Leetaru v. Board of Trustees
of University of Illinois, 32 N.E.3d 583 (Ill. 2015). Murphy al-
leged and ultimately proved such violations here. On the at-
torney fee issue, however, we reverse. Under 42 U.S.C.
§ 1997e(d), the attorney fee award must first be satisfied from
up to 25 percent of the damage award, and the district court
does not have discretion to reduce that maximum percentage.
We remand for entry of a modified judgment.
I. Factual and Procedural Background
     We recount the facts in the light reasonably most favorable
to the verdict, which defendants do not challenge on the mer-
its. On July 25, 2011, plaintiff Charles Murphy was a prisoner
at the Vandalia Correctional Center. His assigned seat at
mealtime that day had food and water on it. When he re­
ported the mess, Correctional Officer Robert Smith first told
him to clean it up himself and later told Murphy to leave the
dining area. A different officer handcuffed Murphy, and Of-
ficer Smith escorted him to a segregation building. When they
got there, a third officer asked Murphy what unit he normally
stayed in, but Murphy ignored him. Officer Smith began mov-
ing his finger in and out of Murphy’s ear, while asking Mur-
phy if he was deaf and repeating the phrase “you can’t hear,
No. 15-3384                                                     3

you can’t hear.” While this was happening, Lieutenant Greg-
ory Fulk entered the building and saw what was happening.
    Now escorted by three officers, Murphy was taken further
into the segregation unit. Murphy did not struggle with the
officers as they walked, although he taunted Officer Smith,
promising what would happen the next time he “ain’t got no
handcuffs on.” Hearing that, Officer Smith hit Murphy in the
eye and then applied a choke hold with his arm around Mur-
phy’s throat. Murphy lost consciousness. When he came to,
Lieutenant Fulk and Officer Smith were pushing him into a
cell. With his hands still cuffed behind his back, Murphy fell
face-first into the cell and hit his head on its metal toilet. The
officers took off his clothes and handcuffs and left without
having checked his condition.
    Thirty or forty minutes later, a nurse came to see Murphy,
who was ultimately sent to a hospital. His orbital rim—part
of his eye socket—had been crushed and needed surgery. He
had that surgery but did not recover completely. As of Janu-
ary 2015, his vision remained doubled and blurred.
     In July 2012, Murphy filed suit in the Southern District of
Illinois. After two rounds of complaint amendments and a
partial grant of summary judgment for defendants, the case
was tried to a jury. The jury found for plaintiff Murphy on
four claims against two defendants—Lieutenant Fulk and Of-
ficer Smith, the appellants here. The jury found Officer Smith
liable on two claims of state-law battery and one federal claim
of unconstitutional use of force under the Eighth Amend-
ment. The jury also found Lieutenant Fulk liable on a federal
Eighth Amendment claim of deliberate indifference to a seri-
ous medical need. All told, the jury awarded $241,001 in com-
pensatory and punitive damages against Officer Smith and
4                                                     No. 15-3384

$168,750 against Lieutenant Fulk. The district court reduced
the combined award to a total of $307,733.82. That reduction
is not at issue in this appeal. The district court also awarded
attorney fees and ordered that 10 percent of the damages
awarded be put toward paying those fees. Officer Smith and
Lieutenant Fulk have appealed.
II. Sovereign Immunity
   The defendants argue first that state-law sovereign im-
munity bars Murphy’s state-law claims. The district court
found, and Murphy contends on appeal, that defendants
waived their state-law sovereign immunity defense. We find
no waiver but find that state-law sovereign immunity does
not shield these defendants from liability.
    A. Sovereign Immunity in Illinois
    Illinois is protected against civil suits in federal court by
two relevant doctrines. First, the “Eleventh Amendment im-
munizes unconsenting states from suit in federal court.” Ben-
ning v. Board of Regents of Regency Universities, 928 F.2d 775, 777
(7th Cir. 1991); see also Alden v. Maine, 527 U.S. 706, 712–13
(1999) (explaining broader concept of sovereign immunity for
which “‘Eleventh Amendment immunity ... is convenient
shorthand”). Second, an Illinois statute provides, with excep-
tions not relevant here, that “the State of Illinois shall not be
made a defendant or party in any court.” 745 Ill. Comp. Stat.
5/1. Under the Erie Railroad doctrine, that statute governs
claims in federal court arising under state law. Benning, 928
F.2d at 777, citing Erie Railroad v. Tompkins, 304 U.S. 64 (1938).
While both doctrines are often referred to as “sovereign im-
munity,” they are not the same. See, e.g., Beaulieu v. Vermont,
807 F.3d 478, 485–86 (2d Cir. 2015) (distinguishing between
No. 15-3384                                                                     5

Eleventh Amendment immunity and broader state sovereign
immunity under Vermont law). As we explain below, im-
portant differences between the federal and state doctrines
are decisive in this case.
    B. Waiver
    Before addressing the merits of the state-law sovereign im-
munity defense, we first address plaintiff Murphy’s argument
that defendants waived the defense. “[S]overeign immunity
is a waivable affirmative defense.” Park v. Indiana University
School of Dentistry, 692 F.3d 828, 830 (7th Cir. 2012) (Eleventh
Amendment), citing Board of Regents of University of Wisconsin
System v. Phoenix International Software, Inc., 653 F.3d 448, 463
(7th Cir. 2011); see also Lapides v. Board of Regents of University
System of Georgia, 535 U.S. 613, 624 (2002) (state’s voluntary re-
moval to federal court waived Eleventh Amendment immun-
ity). If a state does not raise the immunity defense, “a court
can ignore it.” Wisconsin Dep’t of Corrections v. Schacht, 524 U.S.
381, 389 (1998). Because the defendants never relied and still
do not rely on Eleventh Amendment immunity, they waived
that defense. See Park, 692 F.3d at 830 (finding waiver where
the state “never once raised the issue ... before the district
court” and declined to raise the issue “even when prompted
by this court at argument”). 1


    1  Like the parties, we rely on Eleventh Amendment case law to ad­
dress waiver. This is our usual approach under the Erie doctrine because
procedural issues are governed by federal law in federal courts, and
waiver is generally treated as procedural. See Herremans v. Carrera Designs,
Inc., 157 F.3d 1118, 1122–23 (7th Cir. 1998). Even if Illinois law governed
the waiver issue, there would be no waiver. Illinois appears to permit sov-
ereign immunity waivers only by statute, not by litigation conduct. See
Township of Jubilee v. State, 960 N.E.2d 550, 555 (Ill. 2011) (“[E]fforts by legal
6                                                                No. 15-3384

    State-law sovereign immunity, however, is a defense the
defendants raised at least five times: in their answer, in the
final pre-trial conference, in the jury instruction conference, in
the defendants’ post-trial motion, and on appeal. Those refer-
ences were explicitly to state-law sovereign immunity. The an-
swer, for example, claimed protection under “statutory sover-
eign immunity,” and in both the post-trial motion and the
briefs before this court, the defendants relied on the Illinois
State Lawsuit Immunity Act.
    Plaintiff Murphy has not cited nor have we found any
comparable case finding a waiver of a sovereign immunity
defense. Cf. Board of Regents, 653 F.3d at 467 (finding waiver
where state filed suit in federal district court); Hill v. Blind In-
dustries & Services of Maryland, 179 F.3d 754, 756 (9th Cir. 1999)
(finding waiver when defendant “participat[ed] in extensive
pre-trial activities and wait[ed] until the first day of trial be-
fore objecting ... on Eleventh Amendment grounds”). Other
circuits hold that equal or less robust efforts to raise the im-
munity defense do not waive it. See, e.g., Union Pacific Railroad
Co. v. Louisiana Public Service Comm’n, 662 F.3d 336, 339–40 (5th
Cir. 2011) (no waiver when defendant raised issue for first
time on appeal, after prevailing on a motion for summary
judgment on the merits); Ashker v. California Dep’t of Correc-
tions, 112 F.3d 392, 394 (9th Cir. 1997) (no waiver when defend-
ants raised issue “in their answer and pretrial statement ...



counsel for the State to defend itself ... will not result in a waiver or forfei-
ture of the State’s statutory immunity. That is so because only the legisla-
ture itself can determine where and when claims against the state will be
allowed.”), citing People ex rel. Manning v. Nickerson, 702 N.E.2d 1278, 1280
(Ill. 1998).
No. 15-3384                                                      7

and ... in their briefs filed in this court”). We reach the same
conclusion here.
    Plaintiff Murphy relies on the defendants’ apparent will-
ingness to defend this case on the merits. See Neinast v. Texas,
217 F.3d 275, 279 (5th Cir. 2000) (“Courts have found waiver
... where the state ... evidenced an intent to defend the suit
against it on the merits.”). But in this case the significance of
that willingness is at best equivocal. Both the defendants and
the district court seemed at times to blend the state-law im-
munity question with the merits of plaintiff’s claims. For ex-
ample, the district court said that sovereign immunity did not
shield the defendants because the jury, in ruling on the battery
claim, necessarily determined that they acted outside their au-
thority. Murphy v. Smith, No. 3:12-cv-00841-SCW, slip op. at
17–18 (S.D. Ill. Sept. 25, 2015).
    That blending would be confusing under federal immun-
ity law, whether under the Eleventh Amendment or doctrines
of absolute immunity. As we explain below, though, the
blending of state-law immunity and the merits under Illinois
law accurately reflects state law. When a plaintiff sues a state
official or employee, the Illinois case law links state-law im-
munity to the merits. If a plaintiff adequately alleges and ul-
timately proves that an Illinois official violated a statute or the
Constitution, Illinois courts hold that the immunity statute
does not apply to claims against the individual official. Be-
cause of that linkage of immunity to the merits, the defense of
the case on the merits is quite consistent with defendants’ as-
sertion of state-law sovereign immunity.
8                                                    No. 15-3384

    C. Illinois Sovereign Immunity for Individual Employees
     The Illinois sovereign immunity statute protects the State
against being “made a defendant or party in any court.” 745
Ill. Comp. Stat. 5/1. Murphy argues that he has not sued the
State of Illinois but only Illinois state employees. Whether the
statute covers such state-law claims is a matter of state law.
Our role is to decide questions of state law as we predict the
state supreme court would decide them. E.g., Rodas v. Seidlin,
656 F.3d 610, 626 (7th Cir. 2011) (“When interpreting state law,
a federal court’s task is to determine how the state’s highest
court would rule.”); Barger v. State of Indiana, 991 F.2d 394, 396
(7th Cir. 1993) (“State courts are the final arbiters of state
law.”).
    Naming state employees as defendants would be too sim-
ple an evasion of the statute, which “cannot be evaded by
making an action nominally one against the servants or agents
of the State when the real claim is against the State of Illinois
itself and when the State of Illinois is the party vitally inter-
ested.” Sass v. Kramer, 381 N.E.2d 975, 977 (Ill. 1978). A sub-
stantial body of Illinois case law addresses when and under
what circumstances the immunity statute applies to claims
against state employees. See Benning, 928 F.2d at 779–80.
   A claim against a state official or employee is a claim
against the state when
       “there are (1) no allegations that an agent or em-
       ployee of the State acted beyond the scope of his
       authority through wrongful acts; (2) the duty al-
       leged to have been breached was not owed to
       the public generally independent of the fact of
No. 15-3384                                                        9

       State employment; and (3) where the com-
       plained-of actions involve matters ordinarily
       within that employee’s normal and official func-
       tions of the State.”
Healy v. Vaupel, 549 N.E.2d 1240, 1247 (Ill. 1990), quoting Robb
v. Sutton, 498 N.E.2d 267, 272 (Ill. App. 1986). That analysis
can be a difficult one, and the state cases guiding it have “not
always been consistent.” Leetaru v. Board of Trustees of Univer-
sity of Illinois, 32 N.E.3d 583, 602 (Ill. 2015) (Burke, J., dissent-
ing). Compare Healy, 549 N.E.2d at 313 (applying immunity
in part because the “relationship between the plaintiff and the
defendants would not have had a source outside the employ-
ment status of the defendants”), with Jinkins v. Lee, 807 N.E.2d
411, 420 (Ill. 2004) (rejecting a “but-for” state employment im-
munity analysis).
    This case is governed by an important exception to sover-
eign immunity in suits against state officials or employees. If
the plaintiff alleges that state officials or employees violated
“statutory or constitutional law,” “[s]overeign immunity af-
fords no protection.” Healy, 549 N.E.2d at 1247. “This excep-
tion is premised on the principle that while legal official acts
of state officers are regarded as acts of the State itself, illegal
acts performed by the officers are not.” Leetaru, 32 N.E.3d at
596. That exception distinguishes Illinois’s sovereign immun-
ity rule from federal law immunity doctrines, which usually
apply to bar claims regardless of their potential merit. See,
e.g., Pennhurst State School & Hospital v. Halderman, 465 U.S. 89,
10                                                             No. 15-3384

92–93, 120–21 (1984) (reversing on Eleventh Amendment im-
munity grounds a judgment on the merits for plaintiffs). 2
    Fritz v. Johnston, 807 N.E.2d 461 (Ill. 2004), shows the Illi-
nois exception in operation and shows how state-law immun-
ity depends on the merits of the plaintiff’s claims. In that case,
the plaintiff alleged that state employees conspired to force
him to retire from his own state job by falsely telling the police
that he had been making threats. Plaintiff alleged civil con-
spiracy and intentional interference with employment. The Il-
linois Supreme Court reversed dismissal of the case, holding
that sovereign immunity did not apply because the plaintiff’s
factual allegations matched the criminal offense of disorderly
conduct. Id. at 467, citing 720 Ill. Comp. Stat. 5/26-l(a)(4) (West
1998).
    This court’s Illinois sovereign immunity cases have
acknowledged this exception to sovereign immunity but most
often have found that the exception did not apply. See, e.g.,
Turpin v. Koropchak, 567 F.3d 880, 884 (7th Cir. 2009) (“Nothing

     2 The Illinois exception for illegal acts by state officials resembles the
federal rule under Ex parte Young, 209 U.S. 123 (1908), but has much
broader effects. Ex parte Young allows federal suits for injunctive and de-
claratory relief to require state officials to comply with federal law. The
Illinois exception also allows suits for damages against state employees in
their individual capacities. Compare MCI Telecommunications Corp. v. Illi-
nois Bell Telephone Co., 222 F.3d 323, 337 (7th Cir. 2000) (“the Ex parte Young
doctrine allows private parties to sue individual state officials for prospec-
tive relief to enjoin ongoing violations of federal law”), with Fritz v. John-
ston, 807 N.E.2d at 468 (“Whenever a state employee performs illegally
[or] unconstitutionally ... a suit may still be maintained against the em-
ployee in his individual capacity[.]”), quoting Wozniak v. Conry, 679
N.E.2d 1255, 1259 (Ill. App. 1997).
No. 15-3384                                                      11

in Turpin’s complaint alleges a violation of the State constitu-
tion or a statute, so this exception is off the table.”). In partic-
ular, Richman v. Sheahan, 270 F.3d 430 (7th Cir. 2001), cabined
the exception. We noted that the plaintiff had alleged a con-
stitutional violation, but we found that sovereign immunity
applied nonetheless because the plaintiff’s state-law claims
were “not dependent on the alleged constitutional violation.”
Id. at 442. Richman, however, preceded Fritz, which permitted
state-law claims that did not depend on constitutional or stat­
utory violations. Fritz, 807 N.E.2d at 467.
    Richman also preceded Leetaru, which just last year reaf-
firmed the exception in broad terms, over a dissent that would
have narrowed it to a scope closer to the federal Ex parte Young
doctrine. Leetaru, 32 N.E.3d at 611–12 (Burke, J., dissenting).
Despite the force of the dissent, our role under Erie is to take
the Leetaru majority opinion at its word: the exception applies
whenever “agents of the State have acted in violation of stat-
utory or constitutional law.” Id. at 597 (majority opinion).
    In this case, Murphy alleged and then proved that the de-
fendants’ actions violated the United States Constitution. He
also alleged and proved the factual elements of the Illinois
criminal offense of aggravated battery. That statute requires
(1) “a battery, other than by the discharge of a firearm,” and
(2) that the defendant “knowingly ... [c]auses great bodily
harm.” 720 Ill. Comp. Stat. 5/12-3.05(a)(l) (West Supp. 2016)
(effective July 1, 2011). Murphy alleged and proved to the jury
that Officer Smith punched his face and head and choked
him, then threw him into a cell with such force that he hit his
face on a metal toilet. Officer Smith did so “without justifica-
tion.” Cf. 720 Ill. Comp. Stat. 5/12-3(a) (West 2002) (defining
12                                                            No. 15-3384

criminal battery as contact “without legal justification”). Mur-
phy suffered “serious and permanent injury” and required re-
constructive surgery. Since Murphy alleged and proved that
Smith and Fulk acted “in violation of statutory or constitu-
tional law,” sovereign immunity does not bar his state-law
claims. Fritz, 807 N.E.2d at 467, quoting Healy, 549 N.E.2d at
1247. 3
III. Attorney Fee
   The Prison Litigation Reform Act sets limits on attorney
fees awarded to prisoners who prevail in civil rights cases. 42
U.S.C. § 1997e(d). Whenever such a prisoner receives a mon-
etary judgment, “a portion of the judgment (not to exceed 25
percent) shall be applied to satisfy the amount of attorney’s
fees awarded against the defendant.” § 1997e(d)(2).
   The district court interpreted that language to permit it to
exercise its discretion in choosing the percentage of the dam-
age award that should go toward the attorney fee, so long as
the choice was no greater than 25 percent. The court allocated
10 percent of the damage award to satisfy the attorney fee
award. That interpretation is consistent with decisions of


     3 We emphasize that Murphy both alleged and proved the violations in

this case. Most Illinois cases dealing with this exception to sovereign im-
munity focus on the plaintiff’s allegations because the appeals have arisen
from motions to dismiss on the pleadings. We believe Illinois also requires
a plaintiff ultimately to prove the alleged violations. For example, Leetaru
explained that “sovereign immunity affords no protection when agents of
the State have acted in violation of statutory or constitutional law or in ex-
cess of their authority,” and in reversing dismissal on the pleadings, the
court allowed defendants on remand to show their conduct was not “in
fact” unauthorized, illegal, or in violation of plaintiff’s rights. See 32
N.E.3d at 597 (emphasis added).
No. 15-3384                                                    13

other circuits, which allow such discretion. See Boesing v.
Spiess, 540 F.3d 886, 892 (8th Cir. 2008) (“plain language of 42
U.S.C. § 1997e(d)(2) does not require the district court to au-
tomatically apply 25 percent of the judgment to pay attorney’s
fees”); Parker v. Conway, 581 F.3d 198, 205 (3d Cir. 2009) (agree-
ing with Boesing).
    We have read the statute differently. In Johnson v. Daley,
339 F.3d 582, 585 (7th Cir. 2003) (en banc), we explained that
§ 1997e(d)(2) required that “attorneys’ compensation come[]
first from the damages.” “[O]nly if 25% of the award is inad-
equate to compensate counsel fully” does the defendant con­
tribute more to the fees. Id. We continue to believe that is the
most natural reading of the statutory text. We do not think the
statute contemplated a discretionary decision by the district
court. The statute neither uses discretionary language nor
provides any guidance for such discretion.
   Accordingly, we REMAND the case to the district court to
modify its judgment to require Murphy to pay from the judg-
ment the sum of $76,933.46 toward satisfying the attorney fee
the court awarded. In all other respects the judgment is
                                                   AFFIRMED.
14                                                  No. 15-3384

   MANION, Circuit Judge, concurring. I join the court’s opin-
ion. I write separately to address the scope of Illinois’ sover-
eign immunity defense for state employees sued in their indi-
vidual capacities, which has been a difficult issue for the Illi-
nois state courts. Because the plaintiff in this case prevailed
on federal constitutional claims as well as state claims, only a
small portion of the judgment is at stake in this appeal. Yet the
case still presents an important issue of state law: to what ex-
tent Illinois’ State Lawsuit Immunity Act and the Court of
Claims Act confines intentional tort claims against state em-
ployees to the Illinois Court of Claims.
     The State Lawsuit Immunity Act prohibits the State of Illi-
nois from being named as a defendant in any court, with lim-
ited exceptions. 745 ILCS 5/1. One of those exceptions is the
Court of Claims Act, which created that court as the “exclu-
sive forum for resolving lawsuits against the state.” People ex
rel. Manning v. Nickerson, 702 N.E.2d 1278, 1280 (Ill. 1998) (in-
ternal quotation marks omitted). It provides in relevant part
that the Court of Claims has exclusive jurisdiction over “[a]ll
claims against the State for damages sounding in tort.” 705
ILCS 505/8(d). In effect, the State’s limited waiver of sovereign
immunity gives it home-court advantage when it defends tort
claims for damages. See Loman v. Freeman, 890 N.E.2d 446, 458
(Ill. 2008) (no right to a jury trial in the Court of Claims);
Reichert v. Court of Claims, 786 N.E.2d 174, 177 (Ill. 2003) (no
right to appeal the merits of a Court of Claims decision).
    The dispositive question here is whether state-law por-
tions of this suit (the battery claims) against the defendant
prison guards are really “against the State” for the purposes
of these statutes. The most natural reading of the statute
seems to preclude any court other than the Illinois Court of
No. 15-3384                                                                 15

Claims from exercising jurisdiction over the plaintiff’s inten-
tional tort claim. Battery is a tort and the defendants here were
acting in the scope of their state employment when they (ac-
cording to the jury) battered the plaintiff. Had they not been
doing so, the Illinois Attorney General’s office would not have
appeared on their behalf, as it did in the district court and in
this court. 5 ILCS 350/2(a) & (e) (providing that the Illinois At-
torney General will appear on behalf of a state employee sued
for something “arising out of any act or omission occurring
within the scope of the employee’s State employment” and in-
demnify upon judgment against the employee in such cases).
In every practical sense, this is a judgment that “could operate
to control the actions of the State or subject it to liability.” Cur-
rie v. Lao, 592 N.E.2d 977, 980 (Ill. 1992).
   However, the Illinois Supreme Court has construed
“against the State” more narrowly in suits against state em-
ployees. See, e.g., Leetaru v. Bd. of Trs., 32 N.E.3d 583, 596 (Ill.
2015); Loman, 890 N.E.2d at 462. 1 That court would hold that
the defendants here acted outside their authority and there-
fore that immunity does not apply. We are bound to follow
that court’s holdings and reasoning. Therefore, I join the opin-
ion of the court in full.




    1  Several opinions of Illinois’ intermediate appellate court read the
Court of Claims Act more broadly; their reasoning would bring the plain-
tiff’s battery claims within the exclusive jurisdiction of the Court of
Claims. See, e.g., Grainger v. Harrah’s Casino, 18 N.E.3d 265, 273‒75 (Ill.
App. Ct. 2014); Sellers v. Rudert, 918 N.E.2d 586, 591‒92 (Ill. App. Ct. 2009);
Welch v. Illinois Supreme Court, 751 N.E.2d 1187, 1194 (Ill. App. Ct. 2001);
Campbell v. White, 566 N.E.2d 47, 53 (Ill. App. Ct. 1991). However, we are
bound only by the opinions of Illinois’ highest court.
