                                       2015 IL 117811



                                         IN THE
                                SUPREME COURT
                                             OF
                          THE STATE OF ILLINOIS



                                    (Docket No. 117811)

      DeANGELO M. COWPER, Appellee, v. RANDY NYBERG et al., Appellants.



                               Opinion filed March 19, 2015.



        JUSTICE THOMAS delivered the judgment of the court, with opinion.

        Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and
     Theis concurred in the judgment and opinion.



                                         OPINION

¶1       At issue is whether plaintiff stated a cause of action for negligence against the
     circuit court clerk and the sheriff, when the number of days plaintiff had been in
     custody and for which he was to receive credit against his sentence were calculated
     incorrectly, resulting in him being wrongfully incarcerated for over four months.



¶2                                    BACKGROUND

¶3      Plaintiff, DeAngelo Cowper, was the named defendant in Saline County circuit
     court case No. 2003-CF-323. On May 12, 2011, plaintiff pleaded guilty and was
     sentenced to 27 months’ imprisonment. The sentencing judgment entered on June
     1, 2011, provided that plaintiff was to receive 275 days’ credit for time served.
     Plaintiff was transported to the Department of Corrections on June 2, 2011.

¶4       The record is silent on how plaintiff learned that his sentencing credits were
     calculated incorrectly, but on June 23, 2011, plaintiff filed a “Motion to Recalculate
     Time Served.” On October 16, 2011, plaintiff was released from the Department of
     Corrections. On November 22, 2011, the State responded to defendant’s motion.
     The State conceded in its response that defendant had not been given credit for time
     served between January 8, 2008, and February 2, 2008, and between November 29,
     2010, and May 11, 2011. The State thus agreed with plaintiff that he should have
     received credit for those days. On the same day that the State filed its response, the
     circuit court of Saline County entered an order granting defendant the additional
     credits and asking the State to prepare an amended mittimus. The court then entered
     an amended judgment that included all of the good time credits that plaintiff should
     have received.

¶5       On January 20, 2012, plaintiff filed a two-count complaint against Keith
     Brown, the sheriff of Saline County, and Randy Nyberg, the Saline County circuit
     clerk. Each count was titled “Negligence,” with count I directed against the clerk
     and count II against the sheriff. The basis of the duty alleged to have been breached
     by each is found in section 5-4-1(e)(4) of the Unified Code of Corrections (730
     ILCS 5/5-4-1(e)(4) (West 2012)), which provides as follows:

             “(e) The clerk of the court shall transmit to the department, agency or
         institution, if any, to which the defendant is committed, the following:

                                              ***

                 (4) the number of days, if any, which the defendant has been in custody
             and for which he is entitled to credit against the sentence, which
             information shall be provided to the clerk by the sheriff[.]”

     Plaintiff alleged that, because either the sheriff or the clerk transmitted the incorrect
     number of days he had been in custody, he ended up erroneously incarcerated for
     137 days. Plaintiff had sufficient credits that he should not have spent any time in
     the Department of Corrections. Plaintiff alleged that as a direct and proximate
     cause of defendants’ negligence, plaintiff suffered a loss of freedom, a loss of
     normal life, a loss of employment, a loss of ability to seek additional employment

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     opportunities, and was unable to care for or to be with his family. Plaintiff asked for
     damages in excess of $50,000.

¶6       Defendants filed a section 2-615 (735 ILCS 5/2-615 (West 2012)) motion to
     dismiss. Defendants argued that plaintiff had not properly alleged any duty that had
     been breached by defendants. Defendants contended that there was no authority
     that section 5-4-1(e)(4) provides a private cause of action for its violation. Plaintiff
     filed a memorandum of law in response. Plaintiff argued that section 5-4-1(e)(4)
     imposed a ministerial duty on defendants, and that he had properly pleaded a
     breach of this ministerial duty. Plaintiff cited case law establishing that a breach of
     a ministerial duty prescribed by statute can support a negligence action.

¶7       The circuit court of Saline County granted the motion to dismiss. With respect
     to the clerk, the court found that the complaint did not allege a duty that the clerk
     had breached. The court noted that the statute merely required the clerk to forward
     the information he or she receives from the sheriff, and there was no allegation in
     the complaint that the clerk had failed to do so. With respect to the sheriff, the court
     found that the statute did not expressly grant a private right of action. The court
     then applied the four-part test set forth in Noyola v. Board of Education of the City
     of Chicago, 179 Ill. 2d 121 (1997), and determined that no private right of action
     could be implied in the statute, either. In particular, the court found that the statute
     was a criminal sentencing statute and that plaintiff was not in the class of persons
     for whose benefit the statute was designed. Moreover, the court found that plaintiff
     had a remedy through the normal processes for criminal cases. Plaintiff filed a
     motion to reconsider, in which he argued, inter alia, that the cause of action he had
     pleaded was negligence, and the court failed to consider the case law he had
     provided establishing that a cause of action exists for the negligent performance of
     a ministerial duty.

¶8       Plaintiff appealed, and the Appellate Court, Fifth District, reversed. 2014 IL
     App (5th) 120415. As had the trial court, the appellate court focused primarily on
     whether or not a private right of action is implied in the statute, even though the
     plaintiff had pleaded common law negligence rather than a statutory cause of
     action. The court applied the four-part Noyola test for implying a private right of
     action under a statute and concluded that plaintiff had satisfied all four parts. The
     court first looked at the purposes section of the Unified Code of Corrections (730
     ILCS 5/1-1-2(c), (d) (West 2010)), and determined that plaintiff was in the class of
     persons for whom the statute was enacted. 2014 IL App (5th) 120415, ¶ 18. The
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       court next determined that implying a private cause of action was consistent with
       the Code’s purpose to rehabilitate the offender and restore him to useful
       citizenship. Id. ¶¶ 19, 20. Third, the court held that plaintiff’s injury of being held
       beyond his proper release date is one that the legislation was designed to prevent.
       The court explained that “prevention of this type of injury is consistent with the
       stated statutory goals of preventing arbitrary and oppressive treatment and
       returning offenders to useful citizenship.” Id. ¶ 21. Finally, the court determined
       that implying a private cause of action was necessary to provide an adequate
       remedy for violations of the statute. The court explained that plaintiff had no
       administrative remedy against the Department of Corrections because the
       Department was obligated to follow the court’s sentencing order. Id. ¶¶ 22, 23, 24.
       The court also held that plaintiff did not have a common law negligence action. The
       court explained that violation of a statute designed to protect human life or property
       is prima facie evidence of negligence, but found that this statute was not a safety
       statute. Id. ¶ 26. Nor did plaintiff have a constitutional claim, because federal case
       law establishes that incarcerating a prisoner beyond his legal release date does not
       implicate the eighth amendment unless it is the product of deliberate indifference.
       Id. ¶ 27. The court did note that plaintiff had successfully moved for a recalculation
       of his good time credits, but pointed out that the motion had gone unaddressed for
       several months. Accordingly, the court held that plaintiff could only be made whole
       through compensatory damages. Id. ¶ 29. The court stated that the trial court had
       erred in “granting the dismissal of Cowper’s statutory claim” (id. ¶ 33), even
       though plaintiff had not pleaded a statutory claim.

¶9         We allowed defendants’ petition for leave to appeal. Ill. S. Ct. R. 315 (eff. July
       1, 2013).



¶ 10                                        ANALYSIS

¶ 11       Defendants raise two issues on appeal. First, defendants contend that plaintiff
       failed to allege any breach of a duty by the clerk, as the statute merely requires the
       clerk to transmit information received by him from the sheriff. Second, defendants
       contend that the complaint failed to state a cause of action because no private right
       of action is implied under section 5-4-1(e)(4). We find that the second question is
       not properly before the court, as plaintiff did not assert a statutory cause of action in


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       his complaint. Rather, we will consider whether plaintiff stated a cause of action for
       negligence, which is what he pleaded.

¶ 12        This appeal arises from the dismissal of a complaint pursuant to section 2-615
       of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). A section 2-615
       motion to dismiss tests the legal sufficiency of the complaint. On review, the
       question presented is whether the allegations of the complaint, when taken as true
       and viewed in a light most favorable to the plaintiff, are sufficient to state a cause of
       action upon which relief can be granted. Turner v. Memorial Medical Center, 233
       Ill. 2d 494, 499 (2009). All facts apparent from the face of the pleadings, including
       the exhibits attached thereto, may be considered. Haddick v. Valor Insurance, 198
       Ill. 2d 409, 414 (2001). A cause of action should not 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 v. Burger King Corp., 222 Ill. 2d 422, 429
       (2006). The standard of review is de novo. Id.

¶ 13       Generally, to plead a cause of action for negligence, a plaintiff must plead that
       the defendant owed a duty of care to the plaintiff, that the defendant breached that
       duty, and that the breach was the proximate cause of the plaintiff’s injuries.
       Mt. Zion State Bank & Trust v. Consolidated Communications, Inc., 169 Ill. 2d
       110, 116 (1995). A black letter statement of the specific rule that plaintiff relies on
       in support of his cause of action against the clerk may be found in 15A Am. Jur. 2d
       Clerks of Court § 55:

               “As a public administrative officer or ministerial officer, a court clerk is
           answerable for any act of negligence or misconduct in office resulting in an
           injury to the complaining party, or a violation of applicable standards of
           professional conduct, in the absence of immunity.

               To render the clerk of a court and the sureties on the clerk’s official bond
           liable for the clerk’s misfeasance, the complaining party must show a duty on
           the part of the clerk, a breach of the duty, and consequent damage to the
           complainant, meeting the normal standards of direct and proximate cause.”

       In Mallder v. Rasmussen, 145 Ill. App. 3d 809, 812 (1986), a case involving a suit
       against a deputy sheriff, the court explained that “liability is not regularly imposed
       upon public officials for the negligent performance of discretionary acts, whereas
       the exercise of ministerial tasks entails a duty of reasonable care to those whose

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       injury as a result of the negligent performance of that duty is foreseeable.”
       (Emphasis added.)

¶ 14       Plaintiff relies primarily on Harms v. Bierman, 361 Ill. App. 3d 250 (2005). In
       Harms, the plaintiff spent five hours in custody after being arrested on a body
       attachment that had been vacated. Plaintiff filed a complaint against the circuit
       clerk, alleging negligence. The trial court ultimately determined that the clerk had a
       duty to notify the sheriff when a body attachment has been quashed or vacated, that
       this was logically part of the clerk’s statutory duty to record proceedings of court,
       and therefore the clerk was liable. The court thus awarded the plaintiff $3,500 in
       damages on his negligence claim against the clerk. Id. at 252. The appellate court
       reversed, on the basis that the clerk did not have a duty to ensure that the vacation of
       a body attachment is removed from the sheriff’s records. Id. at 255-56. Because the
       court could not find any statute or rule specifically imposing such a requirement on
       the clerk, it held that the clerk, whose position is ministerial, did not have such a
       duty. Id. at 255. As an example of a statute that imposes a duty on the clerk, the
       court quoted section 14 of the Clerks of Courts Act (705 ILCS 105/14 (West
       2002)), which provides:

           “ ‘Immediately after a judgment of dissolution of marriage or declaration of
           invalidity of marriage is granted in this State, the clerk of the court which
           granted the judgment of dissolution of marriage or declaration of invalidity of
           marriage shall complete and sign the form furnished by the Department of
           Public Health, and forward such form to the Department of Public Health
           within 45 days after the close of the month in which the judgment is
           rendered.’ ” Harms, 361 Ill. App. 3d at 255-56.

       The court clarified that there was no doubt that the legislature could impose a duty
       on the clerk to ensure that vacations of body attachments were removed from the
       sheriff’s records, but it could find no evidence that the legislature had done so. Id. at
       256. Plaintiff argues that section 5-4-1(e)(4) is precisely the type of statute that the
       Harms court said would impose a duty on the clerk, the breach of which could
       support a negligence action.

¶ 15       This court itself has long recognized that court clerks may be held liable for
       breaches of ministerial duties. In Governor v. Dodd, 81 Ill. 162 (1876), this court
       held that the clerk could be held liable for nonfeasance—failure to perform an
       official duty—as well as misfeasance or malfeasance. This court explained that

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       such a rule is necessary because, if the clerk “may omit one duty without liability,
       why may he not omit all with impunity?” Id. at 164. The court explained that
       sheriffs and other ministerial officers are held liable for nonfeasance of duty, and
       there is no reason why the rule should be different for court clerks:

          “[S]heriffs, constables, and other ministerial officers, are held liable for mere
          nonfeasance of duty. Sheriffs and constables are not unfrequently held liable
          for failing to levy an execution, failing to return it, for permitting property
          seized on execution to be re-taken by the defendant, and in a number of other
          cases, where loss is occasioned to the plaintiff by mere non-action,
          unintentional, and caused by mere negligence or omission to perform a duty.
          No reason is perceived for making any distinction between such officers and a
          clerk.” (Emphasis in original.) Id. at 165.

¶ 16       In other cases, this court explained that liability is limited to instances in which
       the duty alleged to have been breached is ministerial. In People v. May, 251 Ill. 54
       (1911), this court explained that circuit clerks have immunity for discretionary
       actions, but not for breaches of ministerial duties. The court explained that a clerk’s
       duty is ministerial when it is “absolute, certain and imperative, involving merely
       the execution of a specific duty arising from fixed and designated facts.” Id. at 57.
       In People ex rel. Munson v. Bartels, 138 Ill. 322 (1891), this court said the same
       thing when discussing the potential liability of the clerk of the probate court:

               “But where the duty imposed on an officer is purely ministerial, he will be
          held liable for an injury to another which results from his failure to perform it,
          or from his performance of it in a negligent or unskillful manner. Official duty
          is ministerial when it is absolute, certain and imperative, involving merely the
          execution of a set task, and when the law which imposes it, prescribes and
          defines the time, mode and occasion of its performance with such certainty that
          nothing remains for judgment or discretion. Official action is ministerial when
          it is the result of performing a certain and specific duty arising from fixed and
          designated facts.” Id. at 328-29.

       In that case, this court determined that when the probate clerk performed his
       statutory duty of taking acknowledgments, he is performing a ministerial duty. The
       statute required that the officer state in a certificate that the person making the
       acknowledgment was personally known to him as the real person subscribing the
       instrument. When the clerk made the certification required by the statute but did so

                                                -7-
       falsely, he was breaching a ministerial duty, and his sureties could be held liable.
       Id. at 335-36.

¶ 17       As we explained in In re Chicago Flood Litigation, 176 Ill. 2d 179, 193-94
       (1997), the discretionary immunity doctrine is now codified in sections 2-109 and
       2-201 of the Local Governmental and Governmental Employees Tort Immunity
       Act (745 ILCS 10/2-109, 2-201 (West 2012)). These sections continued a rule that
       had already been established at common law and which had survived the abolition
       of sovereign immunity. Id. Section 2-109 provides that a local public entity is not
       liable for an act or omissions of one its employees when the employee is not liable,
       and section 2-201 provides:

              “§ 2-201. Except as otherwise provided by Statute, a public employee
          serving in a position involving the determination of policy or the exercise of
          discretion is not liable for an injury resulting from his act or omission in
          determining policy when acting in the exercise of such discretion even though
          abused.” 745 ILCS 5/2-201 (West 2012).

       In the motion to dismiss, neither defendant asserted any immunities. Both simply
       argued that the complaint failed to state a cause of action.

¶ 18       We now turn to the complaint that plaintiff filed. As we noted above, the
       plaintiff filed a complaint sounding in negligence, but the circuit court and the
       appellate court instead considered whether a private right of action was implied in
       the statute. Plaintiff was very clear in the circuit court that he was proceeding on a
       negligence theory, contending that the clerk and the sheriff had breached a
       ministerial duty and that he suffered damages as a direct and proximate result of
       that breach. In this court, that is still the primary argument that plaintiff makes, and
       he relies on the private right of action argument only as a secondary argument.
       Despite this, defendants did not even attempt to address plaintiff’s argument that
       public officials can be held liable for breaches of ministerial duties.

¶ 19       The appellate court spent the majority of its opinion discussing whether a
       private right of action was implied in the statute, and only briefly touched on the
       negligence issue. The appellate court held that plaintiff had no cause of action for
       negligence, relying on Abbasi v. Paraskevoulakos, 187 Ill. 2d 386, 394 (1999),
       where this court stated the rule that in a common law negligence action, “a
       ‘violation of a statute or ordinance designed to protect human life or property is
       prima facie evidence of negligence.’ ” 2014 IL App (5th) 120415, ¶ 26 (quoting
                                                -8-
       Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434 (1991)). The appellate court
       concluded that, because section 5-4-1(e)(4) is not a safety statute, plaintiff could
       not plead its violation in a common law negligence action. 1 Id. The problem with
       the appellate court’s reasoning here is that whether a certain category of statutory
       violation amounts to prima facie evidence of negligence has nothing to do
       with—let alone determines—whether another category of statutory violation (in
       this case the violation of a public official’s statutory ministerial duty) may support a
       cause of action for common law negligence.

¶ 20       The circuit court and the appellate court erred in focusing on whether section
       5-4-1(e)(4) implies a private right of action. The four-part Noyola test is the
       analysis that this court uses when the plaintiff alleges a cause of action that
       originates in a statute, but the statute does not set forth an express right of action.
       See, e.g., Fisher v. Lexington Health Care, Inc., 188 Ill. 2d 455, 458 (1999) (“[t]he
       sole count of the complaint purported to allege an implied private right of action for
       damages pursuant to section 3-608 of the Nursing Home Care Act”). It has no
       application when the plaintiff is proceeding on a common law theory. Here,
       plaintiff was proceeding on a common law negligence theory, under a
       long-established rule that public officials may be held liable for breaches of
       ministerial duties. Plaintiff’s cause of action did not originate in the statute; the
       statute merely set forth the particular ministerial duty that was alleged to have been
       breached. The relevant question before the court is whether plaintiff adequately
       pleaded a common law negligence claim for the breach of a ministerial duty. The
       appellate court stated, and we agree, that the duties prescribed by section
       5-4-1(e)(4) are ministerial. See 2014 IL App (5th) 120415, ¶ 28. That section
       merely requires the sheriff to provide to the clerk the number of days that defendant
       has been in custody, and then the clerk is to forward that information to the place
       where the defendant is confined. These actions do not require the exercise of
       discretion. They are simply the execution of set tasks, arising from “fixed and
       designated facts.” See Munson, 138 Ill. at 328-29.

¶ 21       Defendants have argued that the complaint did not allege the breach of a duty
       by the clerk, because the clerk is merely required to forward the information that he
       or she receives from the sheriff and has no independent duty to verify the accuracy

           1
             The court reached this conclusion despite the fact that, a mere two paragraphs later, it cited the
       rule that a public official may be held liable for the negligent performance of a ministerial duty and
       that section 5-4-1(e)(4) prescribes ministerial duties. 2014 IL App (5th) 120415, ¶ 28.

                                                        -9-
       of this information. As plaintiff explained at oral argument, however, this case is
       still at the pleading stage; no discovery has been had. Therefore, it is not known yet
       if the sheriff forwarded the wrong number of days to the clerk, and the clerk merely
       passed them along, or if the sheriff forwarded the correct number of days to the
       clerk, and the clerk forwarded the wrong number of days to the Department of
       Corrections. Plaintiff conceded that, if the clerk did indeed forward the number of
       days provided by the sheriff, then the clerk has not breached the duty imposed by
       the statute.

¶ 22       The problem, however, is that this is not what plaintiff pleaded in his complaint.
       In his count against the clerk, plaintiff pleaded that section 5-4-1(e)(4) imposed a
       duty on the clerk to transmit to the Department of Corrections the accurate number
       of days that plaintiff had been in custody and that defendant Nyberg breached that
       duty when he transmitted an inaccurate number. In his brief, he continues to make
       that argument and contends that defendants are claiming that the only duty imposed
       on the clerk is to transmit “any arbitrary number of days.” But that is not at all what
       defendants contend. Rather, defendants correctly argue that the duty imposed on
       the clerk under section 5-4-1(e)(4) is to transmit the number of days that the clerk
       receives from the sheriff. In plaintiff’s complaint, he did not allege that the clerk
       breached his duty to forward the number of days that he received from the sheriff.
       He pleaded that the clerk breached his duty to transmit the accurate number of days
       defendant has been in custody, but that is not the duty imposed by the statute. Just
       as in Harms, there was no duty on the clerk’s part to ensure that body attachments
       were removed from the sheriff’s records once they had been vacated, here there is
       no duty on the part of the clerk to verify the accuracy of the information received
       from the sheriff. Accordingly, the count against the clerk was properly dismissed.
       However, we believe that the dismissal should be without prejudice. A complaint
       should be dismissed with prejudice under section 2-615 only if it is clearly apparent
       that no set of facts can be proven that will entitle the plaintiff to recover. Illinois
       Graphics Co. v. Nickum, 159 Ill. 2d 469, 488 (1994). In this case, and as plaintiff’s
       remarks at oral argument clearly demonstrate, a set of facts can easily be pleaded
       against the clerk that, if proven, would entitle plaintiff to recover. Indeed, only a
       minor adjustment to the claim already filed, along the lines described above, is
       required. Accordingly, pursuant to our authority under Illinois Supreme Court Rule
       366(a)(5) (eff. Feb. 1, 1994), we modify the trial court’s judgment to make the
       dismissal of count I without prejudice.


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¶ 23       As for the sheriff, plaintiff pleaded that section 5-4-1(e)(4) imposed a duty upon
       the sheriff to transmit the accurate number of days that plaintiff had been in
       custody, and that a negligent breach of that duty directly and proximately caused
       him to be wrongfully confined in the Department of Corrections for over four
       months. We believe that this states a cause of action under Illinois law, for all of the
       reasons set forth above. Accordingly, we agree with the appellate court that the trial
       court erred in granting defendants’ section 2-615 motion to dismiss as to the sheriff.
       We therefore affirm the judgment of the appellate court in part and reverse in part,
       and we remand the matter to the circuit court for further proceedings consistent
       with this disposition.



¶ 24      Appellate court judgment affirmed in part and reversed in part.

¶ 25      Circuit court judgment affirmed as modified in part and reversed in part.

¶ 26      Cause remanded with instructions.




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