Joseph Sorrentino v. SALVADOR A. GODINEZ , Director of the Illinois Department of Corrections

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13-3421
JOSEPH S ORRENTINO and LABRON C.
NEAL, on their own behalf and on behalf
of all similarly situated people,
Plaintiffs-Appellants,
v.
S ALVADOR A. GODINEZ , Director of the
Illinois Department of Corrections,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 12 C 6757 — Thomas M. Durkin, Judge.
____________________
A RGUED S EPTEMBER 10, 2014 — DECIDED J ANUARY 23, 2015
____________________
Before WOOD, Chief Judge, and EASTERBROOK and TINDER ,
Circuit Judges.
WOOD, Chief Judge. Joseph Sorrentino and Labron C.
Neal are inmates at Illinois’s Stateville Correctional Center.
They purchased several items from Stateville’s commissary,
but the prison later forbade inmates to possess those items in

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2 No. 13-3421
their cells. Sorrentino and Neal were among those whose
property was removed, as the new rule required. They re-
sponded by filing a proposed class action in the district
court, alleging that the confiscation of their property was an
unconstitutional taking and a breach of contract. We con-
clude that the district court was correct to dismiss the action,
though the dismissal should have been without prejudice.
I
The district court concluded that Sorrentino and Neal
failed to state a claim upon which relief can be granted and
thus that dismissal with prejudice was appropriate. See F ED.
R. C IV. P. 12(b)(6). It took no action on class certification. Our
fresh assessment of the case relies on the facts that they set
forth in their complaint, including all reasonable inferences
in their favor. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081
(7th Cir. 2008). Our review is de novo. Alam v. Miller Brewing
Co., 709 F.3d 662, 665 (7th Cir. 2013).
Our two plaintiffs purchased goods from Stateville’s
commissary throughout 2011 and 2012. Around May 25,
2011, Neal purchased a fan and signed a “personal property
contract,” which obligated him to follow all Department of
Corrections (DOC) rules related to use, ownership, and pos-
session of the fan. Sorrentino purchased a typewriter on No-
vember 29, 2011, and a fan on March 27, 2012. He also signed
a personal property contract for his fan.
At the time Neal and Sorrentino made their purchases,
Stateville allowed inmates to keep typewriters and multiple
fans in their cells. It changed the fan policy in July 2012, and
memorialized that action in a bulletin that Warden Marcus
Hardy issued on July 17, 2012. The bulletin announced that

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No. 13-3421 3
henceforth inmates were prohibited from possessing more
than one fan in their cells. On July 23, 2012, Hardy issued a
similar bulletin altogether prohibiting typewriters in cells.
The new policy offered several options for inmates who
owned the newly prohibited types of property. Inmates with
typewriters could have them destroyed; give them to visi-
tors; ship them to someone outside the prison at no cost;
store them in “offender personal property,” which is re-
turned to inmates upon release from prison; or donate them
to the prison library. Extra fans were simply placed in stor-
age as “offender personal property.”
Prison officials removed both plaintiffs’ fans on July 16,
2012, and Sorrentino’s typewriter sometime after July 23,
2012. The fans are currently in storage, and Sorrentino’s
typewriter is in the prison library. Although the complaint
and briefs did not clearly indicate that Sorrentino voluntarily
gave the typewriter to the library, at oral argument counsel
stated that he opted to donate it (given his restricted range of
choice).
Some time later, Sorrentino and Neal filed this suit, on
behalf of themselves and an alleged class. (Unless the con-
text requires otherwise, we will refer only to Sorrentino in
the remainder of this opinion, for the sake of simplicity. The
district court took no action on the class allegations and they
are not mentioned on appeal; we thus do not discuss that
aspect of the case.) The complaint alleged violations of the
Takings and Contracts Clauses of the Constitution as well as
a breach of contract; plaintiffs sought monetary, declaratory,
and injunctive relief. After Director Godinez filed a motion
to dismiss, Sorrentino withdrew the claim for breach of con-
tract to the extent it sought damages. The district court then

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4 No. 13-3421
dismissed the entire action, finding that the Eleventh
Amendment barred claims for money damages against
Godinez and that the complaint failed to state a Takings
Clause, Contracts Clause, or breach of contract claim. At this
point, Sorrentino has abandoned the Contracts Clause claim
and all claims for damages. We are thus left with the indi-
vidual claims for injunctive and declaratory relief for the al-
leged takings and breaches of contract. The plaintiffs are
pursuing those claims only against Godinez, and only in his
official capacity (apparently on the theory that the Director
of the Department of Corrections is the person with the au-
thority to change the policy).
II
A
We consider first the claim that Stateville’s revised policy
effected a “taking” of Sorrentino’s property. The Takings
Clause of the Fifth Amendment (applicable to the states
through the Fourteenth Amendment) states: “nor shall pri-
vate property be taken for public use, without just compen-
sation.” U.S. C ONST. amend. V. This provision “does not pro-
scribe the taking of property; it proscribes taking without
just compensation.” Williamson Cnty. Reg'l Planning Comm'n
v. Hamilton Bank of Johnson City, 473 U.S. 172, 194 (1985). Nor
does the clause require a state to pay compensation prior to
or at the same time as a taking. Id. Therefore, “if a State pro-
vides an adequate procedure for seeking just compensation,
the property owner cannot claim a violation of the Just
Compensation Clause until it has used the procedure and
been denied just compensation.” Id. at 195.

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No. 13-3421 5
The latter rule is what dooms Sorrentino’s claims. Illinois
provides such a procedure, but he has not tried to use it.
Even when no Illinois constitutional provision or statute
provides a remedy for a particular taking, “the common law,
which affords a remedy for every wrong, will furnish the
appropriate action for the redress of such grievance.” Roe v.
Cook Cnty., 193 N.E. 472, 473 (Ill. 1934). Illinois courts distin-
guish between a true taking, which requires a physical tak-
ing of property for public use, and an action that damages
property in some way, such as through restrictions on ac-
cess. See Patzner v. Baise, 552 N.E.2d 714, 717 (Ill. 1990); Gran-
ite City Moose Lodge No. 272 v. Kramer, 449 N.E.2d 852, 855
(Ill. 1983). Illinois circuit courts have authority to hear true
takings claims, which if proven, result in a writ of manda-
mus ordering the government to institute eminent domain
proceedings. See Patzner, 552 N.E.2d at 717. The Illinois
Court of Claims has exclusive jurisdiction over suits assert-
ing damages to property. See id.
The distinction between a taking and a “damaging” (as
the Illinois courts dub it) is sometimes unclear. See John
Martinez, A Proposal for Establishing Specialized Federal and
State "Takings Courts," 61 M E. L. R EV. 467, 482 (2009) (dis-
cussing the Illinois Court of Claims and noting “the indis-
tinct line between the jurisdiction of a state’s court of claims
and circuit court in takings cases”). Sorrentino describes
Godinez’s actions as a “damaging.” This characterization
seems sensible: the DOC bulletins limited his access to and
enjoyment of his fan and typewriter but did not completely
extinguish his rights in his property. The broader point,
however, is that some Illinois forum is available; nothing in
federal law requires the state to send these cases to one tri-

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6 No. 13-3421
bunal versus another. If the confiscation of Sorrentino’s
property is a true taking, he may pursue his claim in the ap-
propriate Illinois circuit court. If it is a damaging, state law
directs him to the Illinois Court of Claims. Neither Sorrenti-
no nor Neal has explored either of these avenues under Illi-
nois law and given the state a chance to provide compensa-
tion. The takings claims are thus not ripe. See Williamson, 473
U.S. at 194–95.
Sorrentino tries to avoid this outcome with a futility ar-
gument: the Illinois procedures are functionally nonexistent,
he charges, because the Court of Claims lacks the power to
grant the equitable relief he wants. A plaintiff need not avail
himself of state procedures if those procedures are futile,
meaning inadequate or unavailable. See Daniels v. Area Plan
Comm'n of Allen Cnty., 306 F.3d 445, 456 (7th Cir. 2002). Sor-
rentino urges us to find futility here and to allow him to pre-
sent his claim in federal court without turning first to the
state courts. But his argument does not hold together. Even
if he is correct that the Court of Claims is the proper court
and that it cannot grant equitable relief, see Garimella v. Bd. of
Trustees of Univ. of Ill., 50 Ill. Ct. Cl. 350, 353 (1996) (conclud-
ing that the Court of Claims cannot grant equitable relief but
citing Illinois cases that imply the opposite), that limitation
does not automatically mean that he may seek an injunction
in a different court. He and Neal complain of a taking, and
the normal remedy for a taking is monetary relief, which the
Illinois Court of Claims can provide. See Peters v. Vill. of Clif-
ton, 498 F.3d 727, 732 (7th Cir. 2007) (noting the “strong pre-
sumption that damages, not injunctive relief, is the appro-
priate remedy in a Takings Clause action”).

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No. 13-3421 7
The question thus becomes whether Sorrentino has pre-
sented the kind of case in which equitable relief may be
available for a takings claim. We have identified only two
such situations: “when the government has taken property
for a private, rather than a public, use” and when a “facial
challenge[] to legislative action authorizing a taking” is pos-
sible. Id. Neither exception is applicable here. Whatever
“taking” occurred with respect to the typewriter and fans at
issue here was not for private use. Furthermore, Sorrentino
has not mounted a facial challenge of the kind we contem-
plated in Peters. There, we relied on San Remo Hotel, L.P. v.
City & Cnty. of San Francisco, 545 U.S. 323 (2005) and Yee v.
City of Escondido, 503 U.S. 519 (1992). In those cases, the
plaintiffs alleged that the relevant regulation did not sub-
stantially advance a legitimate state interest regardless of
how it was applied. See San Remo Hotel, L.P., 545 U.S. at 345;
Yee, 503 U.S. at 534. Sorrentino has not made such an argu-
ment against the Stateville bulletins, and it is hard to see
how he could, given the important state interest of safety in
prisons. He and Neal thus are not exempt from Williamson’s
ripeness requirement just because Illinois may require them
to file their claim in a court that cannot grant equitable relief.
Because the plaintiffs filed their takings claim in federal
court before seeking compensation in an Illinois tribunal, we
affirm the district court’s dismissal of the claim. The dismis-
sal, however, should have been without prejudice, so that
they may avail themselves of whatever procedures may still
be available under Illinois law.

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8 No. 13-3421
B
Sorrentino also asserts that Director Godinez breached an
implied-in-fact contract formed at the time of each purchase
from the Stateville commissary. (He no longer relies on the
“personal property contracts” that he signed as the basis of
his breach of contract claim, as he did earlier in this suit.) He
argues that the terms of these alleged contracts prohibited
the state from altering the policies regarding the possession
of fans and typewriters in inmate cells in force at the time.
We need not wade into the merits of this state-law claim.
It appears not to be one that could be heard in a state court
of general jurisdiction, because the State Lawsuit Immunity
Act grants immunity to the state from suit “in any court”
and provides for specifically defined exceptions to that im-
munity. See 745 I LL. C OMP . S TAT. A NN . 5/1. Nevertheless, the
state Court of Claims remains available for “[a]ll claims
against the State founded upon any contract entered into
with the State of Illinois.” 705 I LL. C OMP . S TAT . A NN . 505/8(b).
A person with a claim against Illinois based on a contract
with the state must bring suit in the Illinois Court of Claims,
rather than in the relevant Illinois circuit court or federal dis-
trict court. See Brooks v. Ross, 578 F.3d 574, 579 (7th Cir. 2009)
(finding that 745 ILCS 5/1’s stipulation that tort actions
against Illinois must be brought in the Court of Claims
means that Illinois is immune from such claims in federal
court). We note for the sake of completeness that such a
claim may not be heard in federal court, regardless of the
state’s limitations on its own tribunals, because federal
courts may not entertain suits against states based on state

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No. 13-3421 9
law. See Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S.
89, 106 (1984).
Sorrentino and Neal sued Director Godinez rather than
Illinois, but this distinction is irrelevant. Sovereign immunity
normally does not bar suits for injunctive relief in federal
court alleging that a state official violated the federal consti-
tution or laws. See Ex Parte Young, 209 U.S. 123 (1908). But
the plaintiffs are not asserting such a claim. Sorrentino
claims only that the Director (acting for the state) breached a
contract. The State Lawsuit Immunity Act forbids state-law
suits outside of the Court of Claims that allege that the offi-
cial merely “exceeded his authority by breaching a contract.”
Smith v. Jones, 497 N.E.2d 738, 740–41 (Ill. 1986). Sovereign
immunity and Pennhurst thus bar this claim in federal court,
and the district court was correct to dismiss it. Once again,
however, the dismissal should have been without prejudice.
See Murray v. Conseco, Inc., 467 F.3d 602, 605 (7th Cir. 2006).
III
We AFFIRM the district court’s dismissal of Sorrentino and
Neal’s Takings Clause and breach of contract claims. The
judgment is modified, however, to be one without prejudice.
While they may not refile this action in federal court, Sorren-
tino and Neal may seek to pursue their claims in the appro-
priate Illinois forum.

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