                                  Illinois Official Reports

                                           Appellate Court



                             Cowper v. Nyberg, 2014 IL App (5th) 120415




Appellate Court              DEANGELO M. COWPER, Plaintiff-Appellant, v. RANDY
Caption                      NYBERG, in His Capacity as Saline County Circuit Clerk, and
                             KEITH BROWN, in His Capacity as Saline County Sheriff,
                             Defendants-Appellees.



District & No.               Fifth District
                             Docket No. 5-12-0415


Filed                        May 9, 2014


Held                         Plaintiff’s negligence action against defendant circuit clerk and
(Note: This syllabus         defendant county sheriff under section 5-4-1(e)(4) of the Unified Code
constitutes no part of the   of Corrections alleging that defendants failed to accurately calculate
opinion of the court but     the credit plaintiff should have received for his presentence
has been prepared by the     incarceration against the 27-month sentence imposed for a probation
Reporter of Decisions        violation was improperly dismissed, notwithstanding the fact that
for the convenience of       section 5-4-1(e)(4) does not expressly allow a private cause of action
the reader.)                 for an incorrect calculation of such a sentencing credit, since plaintiff
                             is a member of one of the classes the statute is intended to benefit, the
                             implication of a private cause of action is consistent with the purposes
                             of the Code, plaintiff’s wrongful incarceration is an injury the statute
                             is designed to prevent, and a civil private action for compensatory
                             damages is necessary to provide plaintiff with an adequate remedy for
                             defendants’ breach of their mandatory duties.



Decision Under               Appeal from the Circuit Court of Saline County, No. 12-L-4; the Hon.
Review                       Todd D. Lambert, Judge, presiding.


Judgment                     Reversed and remanded.
     Counsel on              Andrew T. Flynn and Glenn R. Tetzlaff, both of Glenn R. Tetzlaff &
     Appeal                  Associates, of Marion, for appellant.

                             Joseph A. Bleyer and K. Rockne Bleyer, both of Bleyer & Bleyer, of
                             Marion, for appellees.



     Panel                   JUSTICE CHAPMAN delivered the judgment of the court, with
                             opinion.
                             Justices Spomer and Stewart concurred in the judgment and opinion.


                                              OPINION

¶1          Deangelo M. Cowper was convicted of retail theft in 2003, which resulted in a probation
       violation. The trial court sentenced Cowper to 27 months of imprisonment for the probation
       violation. In 2012, Cowper filed his complaint alleging negligence against the Saline County
       circuit clerk, Randy Nyberg, and the Saline County sheriff, Keith Brown, for not transmitting
       to the Illinois Department of Corrections (IDOC) the accurate number of days he had served in
       jail for which he was to receive credit against the 27-month sentence. As a result of the
       incorrect credit against his sentence, Cowper was incarcerated beyond his legal release date.
       The defendants filed a motion to dismiss Cowper’s complaint pursuant to section 2-615 of the
       Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). The trial court granted the motion
       and dismissed Cowper’s complaint. Cowper appeals and argues that section 5-4-1(e)(4) of the
       Unified Code of Corrections (730 ILCS 5/5-4-1(e)(4) (West 2010)) imposes legal duties upon
       the defendants to compile and transmit to the IDOC the days of credit against a sentence of
       imprisonment. He also claims that he has a right to pursue a private cause of action against
       these defendants for breach of those duties.

¶2                                                FACTS
¶3         On May 12, 2011, Cowper pled guilty to three counts of a 2003 felony case. The court
       sentenced him to 27 months’ imprisonment with 1 year of mandatory supervised release upon
       discharge. The judgment-sentence filed on June 1, 2011, included a lengthy summary of the
       days Cowper spent in custody for which he was to receive credit. The judgment-sentence order
       gave Cowper 275 days of credit against the 27-month sentence. Cowper was transferred to
       prison on June 2, 2011. After application of the 275 days of credit, Cowper’s sentence was
       reduced from 27 months to 13 months and 15 days. On June 23, 2011, Cowper filed a motion
       in the Saline County criminal court to recalculate the time. On November 22, 2011, the State
       filed its response, stating that after an investigation, the State concluded that the 275 days
       calculation of credit was wrong. The State’s investigation revealed that Cowper was in Saline
       County custody from January 8, 2008, until February 2, 2008, and from November 29, 2010,
       until May 11, 2011, and that the State did not give him credit for those days in the original
       judgment-sentence. The court entered an order directing the State to prepare an amended
       mittimus to reflect the correct number of days of credit for time served. The State filed its

                                                 -2-
     amended judgment-sentence directed to the IDOC on November 22, 2011. Cowper had
     already been released from the Illinois Department of Corrections on October 16, 2011, after
     serving the full sentence. The corrected mittimus allowed an additional 191 days’ credit for
     time served–for a total of 466 days of credit. As a result of his release from prison, Cowper
     received no benefit from the additional 191 days of credit for time served.
¶4       On January 20, 2012, Cowper filed suit against the defendants alleging negligence. He
     claimed that each defendant had a duty to transmit the accurate number of days for which he
     was entitled to credit. Cowper claims that this duty is derived from section 5-4-1(e)(4) of the
     Unified Code of Corrections (730 ILCS 5/5-4-1(e)(4) (West 2010)). He alleged that if he had
     received proper credit for time served, the credit would have been greater than the
     sentence–that defendants breached their duty by failing to transmit to the IDOC the accurate
     number of days Cowper had been in custody for which he was entitled credit against his
     sentence. Because of the error in credit against his sentence, Cowper was incarcerated from
     June 2, 2011, through October 16, 2011–a period of 137 days. Cowper alleged that as a direct
     and proximate result of defendants’ negligence, he was deprived of his freedom and liberties,
     which resulted in his inability to find and retain employment and an inability to be with and
     care for his family. Cowper asked the court to award him compensatory damages.
¶5       On March 1, 2012, defendants filed a motion seeking to dismiss Cowper’s complaint
     pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)).
     Defendants claimed that Cowper’s complaint was defective on its face and did not allege
     sufficient facts upon which a negligence cause of action could be sustained. Defendants argued
     that section 5-4-1(e)(4) of the Unified Code of Corrections did not allow a private cause of
     action for negligence.
¶6       On July 6, 2012, the trial court granted defendants’ motion to dismiss. The trial court’s
     stated reasoning frames the issues on appeal, and so we include portions of that order for
     reference:
                  “Before the Court is [Defendants’] Motion to Dismiss. The Court GRANTS said
             Motion in respect to the [Defendant] Clerk. [Pursuant to the statute], the Clerk is
             required to send to DOC information he receives from the Sheriff concerning time
             served. No allegation has been made by [Plaintiff] that the [Defendant] Clerk failed to
             transmit such information. As transmission of such information is the only duty of the
             [Defendant] Clerk pursuant to said statute, and no allegation has been made that the
             [Defendant] Clerk failed to do so, [Plaintiff] has failed to allege a duty on the part of the
             [Defendant] Clerk, a breach of which would result in a cause of action. As
             [Defendant’s] Motion pertains to the [Defendant] Sheriff, said Motion is GRANTED
             as well for the reason that said statute fails to convey a private cause of action. ***
             [Plaintiff] could have appealed from his sentence and/or filed a post-conviction petition
             to correct any wrong calculation of his good time credit. Therefore this action is not
             necessary to correct that wrong. Additionally, the statute is a criminal sentencing
             statute. [Plaintiff] is not part of the class of persons for whose benefit the statute was
             designed. None of the other requirements are satisfied as well. [Plaintiff’s] Complaint
             is therefore dismissed.”
¶7       Cowper appeals this order.

¶8                                      LAW AND ANALYSIS

                                                   -3-
¶9          When the trial court is presented with a motion to dismiss a case for failure to state a cause
       of action pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West
       2010)), the court must determine whether the complaint sets forth sufficient facts that, if
       established, could entitle the plaintiff to relief. Bryson v. News America Publications, Inc., 174
       Ill. 2d 77, 86, 672 N.E.2d 1207, 1214 (1996). The trial court must accept all well-pleaded facts
       in the complaint as true and draw reasonable inferences from those facts that are favorable to
       the plaintiff. Bryson, 174 Ill. 2d at 86, 672 N.E.2d at 1213. Because the trial court is not being
       called upon to judge any witness’s credibility or weigh facts, on appeal we review the matter
       de novo. Jackson v. Michael Reese Hospital & Medical Center, 294 Ill. App. 3d 1, 9, 689
       N.E.2d 205, 211 (1997).
¶ 10        We begin the legal analysis in this case by determining whether an inmate can pursue a
       private cause of action pursuant to section 5-4-1(e)(4) of the Unified Code of Corrections
       (Code) (730 ILCS 5/5-4-1(e)(4) (West 2010)). We note that Cowper has not cited, nor have we
       found, any reported case addressing whether an inmate can file a civil cause of action pursuant
       to section 5-4-1(e)(4) of the Code for errors in calculating credits.
¶ 11        In analyzing Cowper’s claim that section 5-4-1(e)(4) of the Code allows a private cause of
       action, we review the statute itself to determine whether an express cause of action is allowed.
       Moore v. Lumpkin, 258 Ill. App. 3d 980, 989, 630 N.E.2d 982, 989 (1994); Jordan v. O’Fallon
       Township High School District No. 203 Board of Education, 302 Ill. App. 3d 1070, 1079, 706
       N.E.2d 137, 143 (1999). If the court can determine the legislature’s intent from the plain
       language of the statute, then the court should not resort to other interpretative aids. Jordan, 302
       Ill. App. 3d at 1079, 706 N.E.2d at 143 (citing People v. Fitzpatrick, 158 Ill. 2d 360, 364-65,
       633 N.E.2d 685, 687 (1994)).
¶ 12        Section 5-4-1(e)(4) of the Unified Code of Corrections provides:
                    “(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[.]” 730 ILCS 5/5-4-1(e)(4) (West 2010).
¶ 13        Section 5-4-1(e)(4) sets forth the actions the clerk of the court and the county sheriff must
       take in compiling and transmitting information regarding a defendant’s credits against
       sentence. The use of the word “shall” generally indicates that the legislative intent is
       mandatory. People v. Woodard, 175 Ill. 2d 435, 445, 677 N.E.2d 935, 940 (1997). However,
       the language of the statute does not set forth any inmate rights in the event of an error in credit
       calculation. Thus, we find that the Code fails to provide an inmate with an express right to
       pursue a cause of action for an improper calculation of credits against sentence.
¶ 14        The fact that the wording of the statute does not expressly allow a private cause of action
       for violations is not necessarily dispositive of whether the court will allow one. Sawyer Realty
       Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379, 386, 432 N.E.2d 849, 852 (1982). The court can
       imply a private cause of action where it is consistent with the underlying purpose of the statute
       and necessary to achieve the aim of the legislature. Id. The public policy underlying the
       statutory enactments may implicate a private right of action for certain individuals when they
       belong to a class of persons that the Code was designed to protect. Id. at 386-87, 432 N.E.2d at
       852.

                                                    -4-
¶ 15        In order for Cowper to bring his claim under the statute, he must establish that he meets the
       criteria for an implied cause of action. Case law has established four factors which must be met
       to imply a private cause of action:
                “(1) a plaintiff is a member of the class for whose benefit a piece of legislation was
                enacted; (2) it is consistent with the underlying purpose of the legislation; (3) a
                plaintiff’s injury is one the legislation was designed to prevent; and (4) it is necessary to
                provide an adequate remedy for violations of the legislation.” Noyola v. Board of
                Education of the City of Chicago, 284 Ill. App. 3d 128, 131-32, 671 N.E.2d 802, 805
                (1996), aff’d, 179 Ill. 2d 121, 688 N.E.2d 81 (1997).
       Corgan v. Muehling, 143 Ill. 2d 296, 312-13, 574 N.E.2d 602, 609 (1991); Sawyer Realty
       Group, Inc., 89 Ill. 2d at 388-89, 432 N.E.2d at 853; Rodgers v. St. Mary’s Hospital of
       Decatur, 149 Ill. 2d 302, 308, 597 N.E.2d 616, 619 (1992).
¶ 16        In considering Cowper’s argument for an implied cause of action, we first review the stated
       purpose of the Unified Code of Corrections.
                    “§ 1-1-2. Purposes. The purposes of this Code of Corrections are to:
                    (a) prescribe sanctions proportionate to the seriousness of the offenses and permit
                the recognition of differences in rehabilitation possibilities among individual
                offenders;
                    (b) forbid and prevent the commission of offenses;
                    (c) prevent arbitrary or oppressive treatment of persons adjudicated offenders or
                delinquents; and
                    (d) restore offenders to useful citizenship.” 730 ILCS 5/1-1-2 (West 2010).
¶ 17        We now turn to the analysis of the four factors necessary to imply a statutory private cause
       of action.
¶ 18        First, we determine whether Cowper belongs to one of the classes of people for whose
       benefit the statute was enacted. Cowper alleges that he was wrongly detained in an IDOC
       facility for 137 days. A plain reading of the Unified Code of Corrections purposes section
       makes it clear that an adjudicated offender who claims to be wrongly deprived of his liberty
       places Cowper in one of the classes of people for whose benefit the statute was enacted, i.e.,
       “(c) prevent arbitrary or oppressive treatment of persons adjudicated offenders or delinquents;
       and (d) restore offenders to useful citizenship” (730 ILCS 5/1-1-2(c), (d) (West 2010)).
¶ 19        Second, we determine whether a private cause of action is consistent with the purpose of
       the legislation. The defendants argue that the underlying purpose of the Code is for the
       protection of the public and not for inmates’ rights. Consequently, defendants argue that
       allowing an inmate to bring a private cause of action would be inconsistent with this purpose.
       We disagree with this statutory interpretation. The plain language of the statute and the case
       law set forth dual purposes directed toward both the public and the adjudicated offenders. The
       purposes of the Code are “designed to protect society from future criminal conduct by past
       offenders (730 ILCS 5/1-1-2(b) (West 1994)), prevent arbitrary or oppressive deprivations of
       the liberties of offenders (730 ILCS 5/1-1-2(c) (West 1994)), and restore offenders to useful
       citizenship (730 ILCS 5/1-1-2(d) (West 1994)).” Turner v. Campagna, 281 Ill. App. 3d 1090,
       1094, 667 N.E.2d 683, 685 (1996). “The general purpose of the Code of Corrections is to
       rehabilitate the offender, if possible, and to restore him to useful citizenship.” People v. Mahle,
       57 Ill. 2d 279, 285, 312 N.E.2d 267, 271 (1974).

                                                     -5-
¶ 20       Defendants cite to McNeil v. Carter in support of their argument that a private cause of
       action is inconsistent with the purpose of the Code. McNeil v. Carter, 318 Ill. App. 3d 939,
       943, 742 N.E.2d 1277, 1281 (2001). The McNeil court held that the Code did not imply a
       private cause of action for an inmate who allegedly received inadequate medical attention. Id.
       In so holding, the court noted that “the primary purpose and function of the Code is to protect
       the public.” Id. To the extent that McNeil finds this purpose to be overarching, excluding the
       dual purpose directed toward the treatment and rehabilitation of inmates, we reject the court’s
       reasoning. However, we find McNeil inapposite. In applying the holding in McNeil, defendants
       conflate the type of liberty interests in McNeil–those more related to the ordinary day-to-day
       incidents of prison life–with the type of liberty interests in the instant case–freedom from
       restraint. The courts must necessarily balance prison management concerns with the prisoners’
       liberty in determining the amount of process due. Sandin v. Conner, 515 U.S. 472, 478 (1995).
       Furthermore, we believe that the crux of the McNeil decision revolves around factor
       four–whether a private cause of action is necessary to provide an adequate remedy, which we
       will discuss in turn under the fourth factor analysis.
¶ 21       Third, we determine whether Cowper’s injury is one the legislation was designed to
       prevent. Cowper suffered a 137-day incarceration beyond his legal release date. The
       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. Furthermore,
       section 5-4-1(e)(4) of the Code states, “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
       ***.” (Emphases added.) 730 ILCS 5/5-4-1(e)(4) (West 2010). “Generally, the use of the word
       ‘shall’ in a statute is regarded as indicating a mandatory rather than a directory intent.”
       Woodard, 175 Ill. 2d at 445, 677 N.E.2d at 940. The statutory designation of persons
       responsible for the mandatory assembling of and transmission of the credit against sentence
       data is additional evidence of the statutory intent to prevent a prisoner’s wrongful confinement.
¶ 22       Fourth, we determine whether a private cause of action is necessary to provide an adequate
       remedy for violations of the statute. Citing McNeil v. Carter, defendants argue that a private
       cause of action is not necessary because section 3-8-8 of the Code (730 ILCS 5/3-8-8 (West
       2010)) allows for a grievance procedure before the administrative review board where relief
       may be obtained. McNeil v. Carter, 318 Ill. App. 3d 939, 742 N.E.2d 1277 (2001). The facts in
       McNeil warrant further review since McNeil involved grievance issues that were internal to the
       IDOC, unlike the case before us. In McNeil, plaintiff, an inmate, filed suit against several
       IDOC employees. Id. at 940, 742 N.E.2d at 1279. Count I alleged that the defendants did not
       adequately test and segregate inmates with infectious diseases, forcing healthy inmates to
       share cells with infectious inmates. Id. at 941, 742 N.E.2d at 1279. Count I further alleged that
       plaintiff was incorrectly placed on a special medical diet and not properly monitored. Id.
       Plaintiff claimed that these acts violated several sections of the Code. Id. In applying the fourth
       factor to count I, the court found that a private cause of action under the Code was unnecessary
       to provide an adequate remedy because (1) the inmate could bring a claim of misconduct
       before the administrative review board, or (2) the inmate could file a federal cause of action
       under the eighth amendment. Id. at 943, 742 N.E.2d at 1281.



                                                    -6-
¶ 23       Defendants’ reliance on McNeil is misplaced, as the absence of other remedies
       distinguishes this case from McNeil. Cowper has no administrative remedy because the IDOC
       lacks the authority to modify a sentence it receives from the sentencing court. Two Court of
       Claims cases are instructive. Evans v. State, 55 Ill. Ct. Cl. 395 (2002); Patton v. State, 47 Ill.
       Ct. Cl. 174 (1994). The Evans case involved an incarceration extended beyond the legal release
       date. Evans, 55 Ill. Ct. Cl. 395. Evans sued the IDOC on a theory of negligent incarceration
       claiming that the IDOC knew or should have known that his sentence contained an error in the
       credit calculation for good time served. Id. at 397. The Court of Claims held that the IDOC has
       no authority to correct a sentencing court’s order and consequently is not responsible for
       sentencing errors. Id. at 398. The only relief was to be found in the sentencing court. Id. In so
       holding the court stated: “The error in the original mittimus in this case was made by the circuit
       court, possibly due to an error or omission by the circuit court clerk’s office or the sheriff’s
       office. Whatever its source, the error was fixed in the circuit court sentencing order, which
       IDOC was duty bound to enforce, and could not unilaterally correct.” Id. The Evans court went
       on to state, “The statutes place the duty of transmitting convicts [sic] sentencing data to IDOC
       on the county sheriff and the circuit clerk, as this court noted in Patton, supra (see, e.g.,
       Unified Code of Corrections, //5-4-1, 3-8-1; 730 ILCS 5/5-4-1, 5/3-8-1).” Id. In Patton, the
       defendant was sentenced to five years in the IDOC. Patton, 47 Ill. Ct. Cl. at 176. The
       sentencing order provided that the defendant was to be given credit for time served while in jail
       awaiting trial, but did not quantify the credit or a projected “out date.” Id. There was no
       evidence proving the IDOC ever received any jail credit data from either the circuit clerk or the
       sheriff. Id. at 178. Plaintiff sued the state claiming that the IDOC negligently kept him in
       confinement beyond his legal release date. Id. The court held that the State was not responsible
       for the county’s failure to transfer the jail credit data. The Patton court stated:
                    “The Unified Code of Corrections imposes on the county sheriff and circuit clerk
                the duties of assembling that data and transmitting it to Respondent. Section
                5-4-1(e)(4) requires the sheriff to provide the information to the circuit clerk, who in
                turn is to then transmit it to Respondent. (730 ILCS 5/5-4-1(e)(4).) Section 3-8-1(a)
                imposes a separate duty on the sheriff to independently transmit that data to
                Respondent. (730 ILCS 5/3-8-1(a).) Thus, if all had operated according to the statutory
                scheme, Respondent would have received the jail credit data here twice, once from the
                circuit clerk and once again from the sheriff.” Id. at 179-80.
¶ 24       It is clear from the holdings in Evans and Patton that Cowper could not have obtained any
       relief by filing a grievance with the administrative review board, as the IDOC has no authority
       to correct sentencing errors in a court order.
¶ 25       More recently, the United States Court of Appeals for the Seventh Circuit has addressed
       this issue in Shaw v. Germain, 496 F. App’x 646 (7th Cir. 2012). In Shaw, an inmate brought a
       42 U.S.C. § 1983 suit against IDOC officials alleging an eighth amendment violation based on
       a sentencing error. Id. at 647. The Seventh Circuit held that the IDOC did not have the
       authority to amend a sentencing order issued by an Illinois court, citing to sections 5-4-1(e) and
       3-8-1 of the Code (730 ILCS 5/5-4-1(e), 3-8-1 (West 2008)) and Evans, 55 Ill. Ct. Cl. at
       397-98. Shaw, 496 F. App’x at 649. The court stated, “Shaw should have sought relief from the
       state court.” Id.
¶ 26       Defendants also cite to Abbasi v. Paraskevoulakos in support of their argument that a
       private cause of action is not necessary to provide Cowper with an adequate remedy. Abbasi v.

                                                   -7-
       Paraskevoulakos, 187 Ill. 2d 386, 718 N.E.2d 181 (1999). In Abbasi, the plaintiff sought
       damages for injuries she incurred from ingesting lead-based paint. Id. at 388, 718 N.E.2d at
       182. The plaintiff pled both common law negligence evidenced by violation of the Lead
       Poisoning Prevention Act (410 ILCS 45/1 et seq. (West 1996)) and a private cause of action
       under the Lead Poisoning Prevention Act. Id. at 389, 718 N.E.2d at 183. The Illinois Supreme
       Court held that it would not imply a private cause of action under the Act because there already
       existed an adequate remedy under plaintiff’s common law negligence theory. Id. at 393, 718
       N.E.2d at 185. The court stated, “A private cause of action under the Act would be identical to
       plaintiff’s common law negligence action pending in the circuit court.” Id. The important
       distinction between Abbasi and this case is the type of statute at issue. The fact that the Lead
       Poisoning Prevention Act was a statute “designed to protect human life” allowed plaintiff to
       plead the violation of the Act as prima facie evidence of negligence. It is settled law that a
       “violation of a statute or ordinance designed to protect human life or property is prima facie
       evidence of negligence.” Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434, 581 N.E.2d 656,
       661 (1991). “Statutes [that are] designed to protect human life or property establish the
       standard of conduct required of a reasonable person.” Bier v. Leanna Lakeside Property Ass’n,
       305 Ill. App. 3d 45, 58, 711 N.E.2d 773, 783 (1999) (citing Noyola v. Board of Education of
       the City of Chicago, 179 Ill. 2d 121, 130, 688 N.E.2d 81, 84-85 (1997)). We believe that the
       statute in question here cannot be characterized as a safety statute so as to allow Cowper to
       plead the statutory violation as a common law negligence theory. Therefore, unlike in Abbasi,
       a finding of an implied cause of action under the Unified Code of Corrections does not
       duplicate an existing remedy.
¶ 27       Nor does Cowper’s suit against the circuit clerk and the sheriff serve as a basis for a
       constitutional claim. In Daniels v. Williams, 474 U.S. 327, 328 (1986), a prisoner brought an
       action in federal district court under 42 U.S.C. § 1983 against a deputy sheriff for injuries he
       alleged he sustained when falling on a pillow negligently left on a stairway by the deputy. Id.
       The United States Supreme Court held that the due process clause is not implicated by an
       official’s negligent act causing unintended loss of or injury to life, liberty, or property. Id. In so
       holding the Court went on to state, “That injuries inflicted by governmental negligence are not
       addressed by the United States Constitution is not to say that they may not raise significant
       legal concerns and lead to the creation of protectible legal interests.” Id. at 333. “Whatever
       other provisions of state law or general jurisprudence he may rightly invoke, the Fourteenth
       Amendment to the United States Constitution does not afford him a remedy.” Id. at 336.
       Incarcerating a prisoner beyond his legal release date does not implicate the eighth amendment
       unless it is the product of “deliberate indifference.” Campbell v. Peters, 256 F.3d 695, 700 (7th
       Cir. 2001). Here, it is clear that because Cowper’s claims against the circuit clerk and the
       sheriff sound in negligence, he is not afforded a constitutional remedy.
¶ 28       Also relevant to our analysis is the nature of the defendants’ alleged negligent conduct with
       respect to the potential for an immunity defense. In general, public officials cannot be held
       liable for discretionary acts performed within the scope of their authority. Mora v. State, 68 Ill.
       2d 223, 233-34, 369 N.E.2d 868, 873 (1977). If an act is ministerial in nature, the official may
       be subject to liability for the negligent performance of that duty. Hicks v. Williams, 104 Ill.
       App. 3d 172, 177, 432 N.E.2d 1278, 1281 (1982). “Ministerial acts are those that a person
       performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal
       authority, and without reference to the official’s discretion as to the propriety of the act.”


                                                     -8-
       Koltes v. St. Charles Park District, 293 Ill. App. 3d 171, 176, 687 N.E.2d 543, 546 (1997). We
       believe that the legislative use of the language “shall” in describing the defendants’ duties
       indicates a mandatory intent. Woodard, 175 Ill. 2d at 445, 677 N.E.2d at 940. We find the
       described conduct to be ministerial. People v. Scott, 277 Ill. App. 3d 565, 566, 660 N.E.2d
       1316, 1316-17 (1996) (granting pretrial-custody credit against a fine pursuant to section
       110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 1994)) is a
       simple ministerial act).
¶ 29       By dismissing the complaint, the trial court here effectively found that Cowper was not
       entitled to any relief from being wrongfully incarcerated for 137 days. Cowper’s timely
       posttrial motion to recalculate his time went unaddressed by the court for almost five months.
       By the time the State conceded the mistake and a new mittimus was issued, Cowper realized no
       benefit, as he had already been released from prison. At this juncture, compensatory damages
       are the only relief that will make Cowper whole. While Cowper’s injury may not be a
       constitutionally protectable liberty interest as pled, we believe that public policy dictates that
       the wrongful deprivation of one’s liberty raises significant legal concerns that must be
       redressed.
¶ 30       We find that as an incarcerated adjudicated offender, Cowper was a member of one of the
       classes for whose benefit the statute was enacted; that implication of a private cause of action is
       consistent with two of the stated purposes of the Code–to prevent arbitrary or oppressive
       treatment of adjudicated offenders and to restore offenders to useful citizenship; that Cowper’s
       wrongful incarceration is an injury the statute is designed to prevent; and that a civil private
       cause of action for compensatory damages is necessary to provide an adequate remedy for the
       breach of the mandated duties of both the sheriff and the clerk. Under these circumstances, we
       recognize an implied private right of action for damages.
¶ 31       We conclude that section 5-4-1(e)(4) of the Unified Code of Corrections places the duty of
       assembling and transmitting the prisoner’s sentencing data to the IDOC on the sheriff and the
       circuit court clerk–the sheriff to assemble the credit against sentence data and transmit that
       information to the clerk, and the clerk to transmit the information received from the sheriff to
       the IDOC. At the pleading stage we view the facts and their inferences in a light most favorable
       to Cowper and find that he has adequately pled duty, breach, proximate cause, and damages
       sufficient to state a cause of action implied by the statute.

¶ 32                                       CONCLUSION
¶ 33      We hold that the trial court erred in granting the dismissal of Cowper’s statutory claim.
       Accordingly, we reverse the judgment and remand the cause for further proceedings consistent
       with our holding.

¶ 34      Reversed and remanded.




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