G ARY LUTZ, Claimant, u. THE STATE OF ILLINOIS, Respondent.
Case summary
Claimant sought damages for personal injury after being attacked by his cellmate while incarcerated. The court dismissed the claim because claimant failed to exhaust all other remedies, such as suing the assailant, as required by statute and court rules.
Statutes cited: Ill. Rev. Stat., ch. 37, par. 439.24-5; 74 Ill. Adm. Code 790.60; 74 Ill. Adm. Code 790.90
Cases cited: Essex v. State (1987), No. 85-CC-1739; Boe v. State (1984), 37 Ill. Ct. Cl. 72; Lyons v. State (1980), 34 Ill. Ct. Cl. 268
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Headnotes
- N EIL F. HARTICAN, Attorney General ( J AN SCHAFFR Assistant ~C, Attorney General, of counsel), for Respondent. ~urusDIcnoN-erhaust~nof remedies required. A party filing a claim before the Court of Claims is required to exhaust all other remedies and sources of recovery before seeking a final disposition of the claim, and that requirement is mandatory, not optional or subject to waiver.
- PRACTICE AND PROCEDURE-di.SmiWd be based on failure to exhaust
- remedies. The failure of a Claimant to exhaust all other remedies and sources of recovery may be grounds for dismissing a claim.
- PRISONERS AND INMAnw-inmate attacked by cellmate-other remedies not exhausted-claim dismissed. A claim filed by an inmate of a penal institution for the injuries he sustained when he was attacked by his cellmate while sleeping in his bunk bed was dismissed, since the record showed that the Claimant failed to comply with the exhaustion of remedies requirement by not bringing a civil action against his cellmate.
This cause coming on to be heard on the motion of Respondent to dismiss the claim herein, due notice having been given the parties hereto, and the Court being advised in the premises:
The court finds that Claimant has filed a complaint seeking damages for personal injury while incarcerated at Joliet Correctional Center. The complaint further alleges that Claimant was attacked by his cellmate, Frank Alerte, while sleeping in his bunk bed.
We note that section 25 of the Court of Claims Act and section 790.60 of the rules of the Court of Claims require any person who files a claim before the Court of Claims shall, before seeking final disposition of his claim, exhaust all other remedies and sources of recovery. Ill. Rev. Stat., ch. 37, par. 439.24-5; 74 Ill. Adm. Code 790.60.
In Essex v . State (1987), No. 85-CC-1739, the Claimant, a patient at John J. Madden Mental Health Center, brought suit against the State after she had been sexually assaulted by another Madden patient. The Claimant, however, did not file an action against her assailant, and as a result, Respondent moved to dismiss the claim for failure to exhaust remedies pursuant to section 25 of the Court of Claims Act and section 790.60 of the rules of the Court of Claims. We, in Essex, followed the reasoning set forth in Boe v . State (1984), 37 Ill. Ct. C1. 72, which [*126] held that a claimant “must exhaust all possible causes of action before seeking final disposition of a case filed in the Court of Claims.” (Emphasis in original.) We determined that the language of section 25 and section 790.60 “clearly makes the exhaustion of remedies mandatory rather than optional,” and that if it were to waive this requirement, “the requirement would be transformed into an option, to be accepted or ignored according to the whim of all claimants.” Boe, at 76, quoting &yons v . State (1980), 34 Ill. Ct. C1. 268,271-72.
Like the claimant in Essex, Claimant in the case at bar failed to exhaust all remedies available to him prior to seeking final disposition of his claim in the Court of Claims. Accordingly, the Claimant here was obligated to bring a civil action against Frank Alerte.
Section 790.90 of the rules of ,the Court of Claims provides that failure to comply with the provisions of Section 790.60 shall be grounds for dismissal.
. Therefore, Respondent’s motion to dismiss should be granted because Claimant has failed to comply with the exhaustion of remedies requirement mandated in section 25 of the Court of Claims Act and section 790.60 of the rules of the Court of Claims.
It is therefore ordered that the motion of Respondent be, and the same is hereby granted, and the claim herein is dismissed with prejudice.