Steven Booth v. State of Illinois

ORDER

STEFFEN, J. 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 fully advised in the premises.

I. INTRODUCTION

Claimant, Steven Booth, #K03158, has filed a pro se complaint in the Court of Claims case against Respondent the Illinois Department of Corrections (“IDOC”).

[*306] Claimant’s complaint filed on February 13, 2007 alleges three claims:

A. Claimant’s finger tip got chopped off and was thrown away instead of being reattached to his finger.

B. Claimant 70 days of good time for an assault of which he was accused, C. Claimant originally was supposed to be released on October 14, 2006. However, since he lost the 70 days of good time, his out date was moved to December 26, 2006. IDOC is holding him past this date because IDOC is too lazy to look for a place for him to go.

(See Complaint page 6.)

II. ANALYSIS

A. Claimant Has Failed to Provide an Affidavit and Health Care Professional’s Report Attesting to the Meritoriousness of His Claim as Required by the Illinois Code of Civil Procedure 735 ILCS 5/2-622.

Respondent is construing Claimant’s claim concerning the injury to his finger to be a claim for medical malpractice.

Claimant’s claim for medical malpractice should be dismissed because Claimant has not attached to his complaint an affidavit and health professional’s report as required by 735 ILCS 5/2-622.

In medical malpractice actions a Claimant is required to file an affidavit and health professional’s report pursuant to the Illinois Code of Civil Procedure.

See 735 ILCS 5/2-622.

The Code of Civil procedure states in part:

Healing art malpractice. (a) In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff’s attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following:

A. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes (i) [*307] is knowledgeable in the relevant issues involved in the particular action, (ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action, and (iii) is qualified by experience or demonstrated competence in the subject of the case, that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action, and that the affiant has concluded on the basis of the reviewing health professional’s review and consultation that there is a reasonable and meritorious cause for filing of such action. If the affidavit is filed as to a defendant who is a physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatrist, or a psychologist, or a naprapath, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant. For affidavits filed as to all other defendants, the written report must be from a physician licensed to practice medicine in all its branches. In either event, the affidavit must identify the profession of the reviewing health professional. A copy of the written report, clearly identifying the plaintiff and the reasons for the reviewing health professional’s determination that a reasonable and meritorious cause for the filing of the action exists, must be attached to the affidavit. The report shall include the name and the address of the health professional.

735 ILCS 5/2-622

The failure to file a certificate required by this Section shall be grounds for dismissal under Section 2-619 735 ILCS 5/2-622(g). Since Claimant has not complied with 735 ILCS 5/2-622, his claim for medical malpractice should be dismissed.

B. The Court of Claims Does not have Jurisdiction to Review Claimant’s Loss of 70 Days of Good Time Credit.

Claimant claims that IDOC has wrongfully deducted 70 days of his good time credit for an assault that he did not commit.

The Court of Claims does not have jurisdiction to review the disciplinary and administrative policies and decisions of IDOC, White v. State, 49 Ill. Ct. Cl. 187, 189 (1997).

[*308] Since the Court of Claims does not have jurisdiction to review the disciplinary and administrative policies and decisions of IDOC, Claimant’s claim concerning his loss of good time should be dismissed.

C. Claimant’s Claim that IDOC has Wrongfully Held Claimant

Beyond His Release Date

Claimant alleges that he was originally supposed to be released on October 14, 2006. However, since he lost the 70 days of good time, his out date was moved to December 26, 2006. In addition, as of the date February 13, 2007 the filing of this action, Claimant alleges that IDOC is wrongfully holding him past this date.1 In Shawn Edwards v. State, Ill. Ct. Cl. (03CC5082, Order dated January 4, 2005), the Court of Claims held:

The Court of Claims has jurisdiction to entertain a claim for damages if it has been judicially determined in a Court of proper jurisdiction, either a Federal or State Circuit Court, that in fact, [Claimant] was detained for a period greater than that required from the statute. If [Claimant] obtained such a judicial ruling, then he may return to our Court and file the proper claim seeking monetary damages. At the present time there is nothing pending before the Court of Claims over which we have jurisdiction to rule. Accordingly, the Respondent’s Motion to Dismiss is granted.

(See Exhibit A) An inmate incarcerated by IDOC may under certain circumstances proceed with a claim for negligent incarceration. See e.g. Evans v. State, 55 Ill.

Ct. 395 (2002).

The facts in Evans were as follows:

In Evans, the claimant Mr. Carl Evans’ initial mittimus failed to include 126 days for time already served. Mr. Evans was able to have the circuit court issue a corrected mittimus that included those missing days. Mr. Evans’ counsel had a copy of that corrected mittimus sent to the claimant Mr. Evans, who showed it to IDOC staff and said that based on the additional 126 he should be released immediately. The IDOC staff said that it could not accept the corrected mittimus from an According to IDOC’s web page, Claimant was paroled on April 27, 2007 and will be released from parole on August 19, 2009.

[*309] inmate, but that it must come from the Circuit Court Clerk’s Office.

When the corrected mittimus was finally received by IDOC from the Circuit Court Clerk’s Office nine days later, IDOC immediately released him. The Court of Claims held that the State had been negligent in holding him for the additional nine days. The Court of Claims reasoned that Mr. Evans had placed IDOC on notice when he had presented the corrected mittimus and IDOC had a duty to check the validity of the corrected mittimus, Id.

Claimant in the instant case has not produced any orders from a circuit or federal court that has found that Claimant has been detained for a period greater than that required from the statute.

Therefore Respondent asks that Claimant’s claim alleging that he has been held beyond his release date be dismissed.

IT IS THEREFORE ORDERED that Respondent’s motion be, and the same is, hereby granted, and the claim herein is dismissed.