Powers v. Donathan

2023 IL App (4th) 220526-U

• Court: Appellate Court of Illinois
• Decided: September 13, 2023
• Docket: 4-22-0526
• Status: Unpublished

Opinion

NOTICE 2023 IL App (4th) 220526-U This Order was filed under FILED Supreme Court Rule 23 and is September 13, 2023 NO. 4-22-0526 not precedent except in the Carla Bender limited circumstances allowed 4th District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

THOMAS POWERS, ) Appeal from the Plaintiff-Appellant, ) Circuit Court of v. ) Schuyler County GREG DONATHAN and PAUL MORTON, ) No. 22MR1 Defendants-Appellees. ) ) Honorable ) Ramon Escapa, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices Turner and Cavanagh concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed the trial court’s dismissal of plaintiff’s civil rights complaint where his access-to-courts claim is barred by the doctrine of sovereign immunity and he failed to state a claim he was deprived of access to the Internet.

¶2 Plaintiff, Thomas Powers, a resident of the Illinois Department of Human

Services Treatment and Detention Facility in Rushville (Rushville), filed a “Civil Rights

Complaint” alleging defendants, Greg Donathan and Paul Morton, are violating his constitutional

rights by denying him adequate time in the law library and access to the Internet. The trial court

dismissed the complaint, holding it was barred by the doctrine of sovereign immunity and failed

to state claims upon which relief could be granted. Plaintiff appeals, and we affirm.

¶3 I. BACKGROUND

¶4 Plaintiff has been a resident of Rushville since June 2012 pursuant to the Sexually

Violent Persons Commitment Act (725 ILCS 207/1 et seq. (West 2012)). During this time, plaintiff has filed numerous complaints in federal and state court. In January 2022, plaintiff filed

a two-count “Civil Rights Complaint” against two Rushville officials, i.e., defendant Donathan

and defendant Morton. Count I alleged defendants denied plaintiff adequate time in the law

library in violation of both the United States and Illinois Constitutions. Plaintiff requested an

order granting 10 hours of time in the law library per week and improvements to the library’s

conditions. Plaintiff asserted both measures were required by the United States Supreme Court in

Lewis v. Casey, 518 U.S. 343 (1996).

¶5 Count II alleged defendant Donathan was denying plaintiff access to the Internet

in violation of a constitutional right established by the United States Supreme Court in

Packingham v. North Carolina, 582 U.S. 98 (2017), and the Illinois Supreme Court in People v.

Morger, 2019 IL 123643, 160 N.E. 3d 53. Count II requested “access to the internet for

rehabilitation purposes, education, commerce, and face book [sic] with family and friends.”

¶6 Thereafter, plaintiff filed a “Motion for Preliminary Injunction” on count I,

requesting “an injunction for an effective law library.”

¶7 Defendants filed a combined section 2-619.1 motion to dismiss (735 ILCS

5/2-619.1 (West 2022)), arguing the complaint (1) was barred by the doctrine of sovereign

immunity pursuant to section 2-619 (735 ILCS 5/2-619 (West 2022)) and (2) should be

dismissed for failure to state a claim for which relief can be granted pursuant to section 2-615

(735 ILCS 5/2-615 (West 2022)). Specifically, defendants argued plaintiff’s complaint is “only

against them in their official capacities as employees at Rushville *** and thus against the state”

such that its prosecution in a circuit court of the State of Illinois is precluded by the doctrine of

sovereign immunity. Defendants also argued plaintiff’s complaint failed to state claims for which

relief can be granted in that he “makes generalized legal conclusions” asserting violations of the

-2- United States and Illinois Constitutions “but does not identify any specific causes of action.”

Defendants also maintained Packingham and Morger were inapposite as plaintiff is a civil

detainee in Rushville and not an Illinois Department of Corrections inmate.

¶8 During the April 2022 preliminary injunction hearing, plaintiff requested 10 hours

per week in the law library “pursuant to Lewis v. Casey.” Defendants argued plaintiff had access

to the law library, just “not as frequently as he wants,” and noted Rushville staff have to balance

the needs of the residents with respect to law library access. Plaintiff acknowledged he was not

being completely deprived of access to the law library.

¶9 The trial court denied plaintiff’s motion for a preliminary injunction, noting he

has access to the law library, just not as much as he would like.

¶ 10 Following a May 2022 hearing, the trial court granted defendants’ combined

motion to dismiss. The court found count I of plaintiff’s complaint was barred by the doctrine of

sovereign immunity where defendants were acting in their official capacities in limiting

plaintiff’s access to the law library. The court also found neither count of plaintiff’s complaint

stated claims for which relief could be granted.

¶ 11 This appeal followed.

¶ 12 II. ANALYSIS

¶ 13 On appeal, plaintiff argues the trial court erred in granting defendants’ motion to

dismiss. Specifically, plaintiff contends the court did not follow United States and Illinois

Supreme Court case law purportedly supporting a constitutional obligation for defendants to

provide plaintiff the access he wants to the law library and Internet.

¶ 14 A. Standard of Review

-3- ¶ 15 “A motion under section 2-619.1 allows a party to combine a section 2-615

motion to dismiss based upon a plaintiff’s substantially insufficient pleadings with a section

2-619 motion to dismiss based upon certain defects or defenses.” (Internal quotation marks

omitted.) Schloss v. Jumper, 2014 IL App (4th) 121086, ¶ 15, 11 N.E.3d 57. “On appeal, a

circuit court’s dismissal of a complaint pursuant to section 2-619.1 is reviewed de novo

[citation], and we may affirm the dismissal on any basis supported by the record [citation].”

Madison County v. Illinois State Board of Elections, 2022 IL App (4th) 220169, ¶ 42.

¶ 16 B. Trial Court’s Dismissal of Count I

¶ 17 Pursuant to section 2-619(a)(1), a defendant may move to dismiss a complaint on

the ground “[t]hat the court does not have jurisdiction of the subject matter of the action,

provided the defect cannot be removed by a transfer of the case to a court having jurisdiction.”

735 ILCS 5/2-619(a)(1) (West 2022). One basis on which a circuit court would lack subject

matter jurisdiction over a case is where it is barred by the doctrine of sovereign immunity. See

Toth v. England, 348 Ill. App. 3d 378, 387, 809 N.E.2d 702, 709 (2004) ( “Where sovereign

immunity applies, the circuit court is without jurisdiction to entertain the litigation.”). “Whether

an action is in fact one against the State and hence one that must be brought in the Court of

Claims depends on the issues involved and the relief sought.” Leetaru v. Board of Trustees of the

University of Illinois, 2015 IL 117485, ¶ 45, 32 N.E. 3d 583.

¶ 18 Specifically,

“[a] claim against a state official or employee is a claim against the

‘state’ when (1) there are no allegations that an agent or employee of the

State acted beyond the scope of his authority through wrongful acts,

(2) the duty alleged to have been breached was not owed to the public

-4- generally independent of the fact of State employment, and (3) the actions

complained of involve matters ordinarily within that employee’s normal

and official functions for the State.” Kucinsky v. Pfister, 2020 IL App (3d)

170719, ¶ 51, 162 N.E.3d 426.

¶ 19 In addition to these factors, “[r]egarding the relief sought, a court must also

consider whether the relief sought is such that ‘a judgment for the plaintiff could operate to

control the actions of the State or subject it to liability.’ ” Jinkins v. Lee, 209 Ill. 2d 320, 330, 807

N.E.2d 411, 418 (2004) (quoting Currie v. Lao, 148 Ill. 2d 151, 158, 592 N.E.2d 977, 980

(1992)).

¶ 20 We find count I of plaintiff’s complaint to be against the State such that it cannot

be entertained in the circuit court under the doctrine of sovereign immunity. This is so even

though plaintiff’s complaint is nominally against these particular defendants, as “[t]he

prohibition against making the State *** a party to a suit cannot be evaded by making an action

nominally one against the servants or agents of the State when the real claim is against the State

*** itself and when the State *** is the party vitally interested.” (Internal quotation marks

omitted.) Leetaru, 2015 IL 117485, ¶ 45.

¶ 21 First, although plaintiff contended differently at the hearing on his motion for a

preliminary injunction and in his brief to this court, he stated in his complaint it is against

defendants in both their individual and official capacities and alleged they were acting “in the

course and scope” of their employment by denying him additional access to the law library.

Plaintiff’s conclusory statements otherwise during the hearing and in his brief do not change the

fact defendants were acting in the scope of their employment with the State through denying him

additional time in the law library.

-5- ¶ 22 Second, although at the hearing on defendants’ combined motion to dismiss,

plaintiff referred to Jackson v. Alverez, 358 Ill. App. 3d 555, 831 N.E.2d 1159 (2005), to imply

the violation by defendants of a duty they owed him independent of their State employment, he

did not explain what this duty was. In any event, defendants would only have the duty to provide

residents of Rushville with adequate access to the law library. This duty would not and could not

extend to the public independent of defendants’ State employment.

¶ 23 Third, affording Rushville residents access to the law library is a component of

defendants’ normal and official State functions, particularly given how they unquestionably act

in the scope of their employment with the State in how they permit residents to access the law

library. “We note the first and third factors overlap to some extent in this regard.” Carmody v.

Thompson, 2012 IL App (4th) 120202, ¶ 33, 977 N.E.2d 887. A judgment in plaintiff’s favor

requiring defendants to provide him additional law library time would operate to control the

State by limiting defendants’ ability to apportion time in the law library at their discretion.

¶ 24 Although “[t]he doctrine of sovereign immunity affords no protection *** when it

is alleged that the State’s agent acted in violation of statutory or constitutional law or in excess of

his authority” (Leetaru, 2015 IL 117485, ¶ 45), plaintiff has not raised a legitimate claim of a

constitutional right defendants could have violated. The only way defendants could be acting in

violation of plaintiff’s constitutional rights through not affording him 10 hours per week in the

law library is if in fact this is a constitutional requirement. But while plaintiff insists Lewis

requires defendants to afford him at least 10 hours per week in the law library, it does not. In

fact, the only mention in the majority opinion of Lewis to the subject of 10 hours per week in a

law library was its reference to what the district court ordered the officials from the Department

of Corrections to undertake as part of a broader injunctive remedy of their failure to adequately

-6- facilitate inmates’ access to the courts as required by Bounds v. Smith, 430 U.S. 817 (1977).

Lewis, 518 U.S. at 347. Indeed, “Bounds did not create an abstract, freestanding right to a law

library.” Lewis, 518 U.S. at 351. Consequently, while defendants are not affording plaintiff the

access he wants to the law library, they are not violating his constitutional rights; sovereign

immunity accordingly attaches. Therefore, we affirm the trial court’s dismissal of count I of

plaintiff’s complaint on the ground of sovereign immunity.

¶ 25 C. Trial Court’s Dismissal of Count II

¶ 26 We also affirm the trial court’s dismissal of count II of plaintiff’s complaint under

section 2-615 for its failure to state a claim for which relief can be granted. A plaintiff must set

forth facts relevant to the elements of a legally recognized cause of action. Mere conclusory

factual allegations are insufficient. “The court will not fill in all the blanks in a pro se

complaint.” Rodriguez v. Illinois Prisoner Review Board, 376 Ill. App. 3d 429, 434, 876 N.E.2d

659, 664 (2007).

¶ 27 In count II of his complaint, and only with respect to defendant Donathan,

plaintiff alleges the following violations of his rights under the First Amendment:

“Donathan has denied the plaintiff rehabilitation[,] education,

commerce, facing [sic] with family and friends and legal access.

Donathan has placed the plaintiff with a lack of connectivity and

association and has placed the plaintiff in an information black hole.

With just one stroke Donathan bars access to, for many, the principal

sources for knowing current events, checking ads for employment,

speaking and listening in the modern public square.”

-7- ¶ 28 We agree with defendants in that plaintiff’s “general, conclusory allegations about

the denial of Internet access are insufficient to state a First Amendment claim.” Plaintiff does not

set forth any specific facts in relation to defendant Donathan’s alleged actions to apprise him of

how he is violating a legally recognized constitutional right to Internet access. Consequently, we

affirm the trial court’s dismissal of count II of plaintiff’s complaint for its failure to state a claim

for which relief can be granted.

¶ 29 D. Plaintiff’s Continued Abuse of the Court System

¶ 30 Finally, plaintiff’s instant appeal is neither “warranted by existing law or a

good-faith argument for the extension [or] modification *** of existing law” nor “reasonably

well grounded in fact.” As we explain above in relation to count I, and despite plaintiff’s

insistent misrepresentations, Lewis does not require defendants afford plaintiff 10 hours per week

in the law library, nor can it be reasonably construed to do so. Count II contains no factual

specificity to support a cause of action for denial of access to the Internet (for the avowed

purposes of shopping and using Facebook), even assuming such a cause of action is both legally

recognized and applicable to plaintiff. Plaintiff’s complaint and appeal are therefore frivolous

under Illinois Supreme Court Rule 375(b) (eff. Feb. 1, 1994). It is part of a long pattern of

habitual frivolous court filings by plaintiff. As was the case in People v. Harper, 2019 IL App

(4th) 180160, ¶ 18, 124 N.E.3d 589, plaintiff’s “continuing abuse of the court system has

squandered judicial resources that could have been better spent addressing claims filed by

good-faith litigants. Without some consequence for [his] habitual frivolous filings, we believe his

abuse of the trial and appellate courts will continue.” Accordingly,

“ ‘we order [plaintiff] to show cause within 30 days why sanctions should

not be entered against him under Illinois Supreme Court Rule 375(b) (eff.

-8- Feb. 1, 1994) for filing a frivolous appeal. Until such time as (1) [plaintiff]

responds to this order and (2) this court determines what action to take, we

direct the clerk of this court to disregard—and by that we mean to not

file—any new appeals submitted to this court by [plaintiff].’ People v.

Alexander, 2014 IL App (4th) 130152, ¶ 59, 23 N.E.3d 621.” Harper,

2019 IL App (4th) 180160, ¶ 20.

¶ 31 III. CONCLUSION

¶ 32 For the reasons stated, we affirm the trial court’s judgment and order plaintiff to

show cause within 30 days as to why sanctions should not be entered pursuant to Rule 375(b).

¶ 33 Affirmed.

-9-