                          Illinois Official Reports

                                  Supreme Court



                          Cowper v. Nyberg, 2015 IL 117811




Caption in Supreme   DeANGELO M. COWPER, Appellee, v. RANDY NYBERG et al.,
Court:               Appellants.


Docket No.           117811


Filed                March 19, 2015


Decision Under       Appeal from the Appellate Court for the Fifth District; heard in that
Review               court on appeal from the Circuit Court of Saline County, the Hon.
                     Todd D. Lambert, Judge, presiding.


Judgment             Appellate court judgment affirmed in part and reversed in part.
                     Circuit court judgment affirmed as modified in part and reversed in
                     part.
                     Cause remanded with instructions.


Counsel on           Joseph A. Bleyer and James B. Bleyer, of Bleyer & Bleyer, of Marion,
Appeal               for appellants.

                     Andrew T. Flynn, of Tetzlaff, Flynn & Associates, P.C., of Marion,
                     for appellee.


Justices             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 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

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     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 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

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       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 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 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

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       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 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:


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                     “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 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 omission 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
       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


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       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 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

           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.

                                                        -7-
       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.
¶ 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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