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Case 3:09-cv-00133-DRH-PMF Document 4 Filed 05/01/09 Page 1 of 4 Page ID #10

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BETTY D. COOK,

Plaintiff,

-vs-

ILLINOIS DEPARTMENT
OF CORRECTIONS,

Defendant.

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No. 09-133-DRH

MOTION TO DISMISS COUNT II

NOW COMES the Defendant, ILLINOIS DEPARTMENT OF CORRECTIONS, by and

through its attorney, LISA MADIGAN, Attorney General for the State of Illinois, and pursuant to

FED. R. CIV. P. 12(b)(1) and 12(b)(6) submits its Motion to Dismiss Count II in support of which

Defendant states as follows:

(1)

(2)

Plaintiff filed a Complaint with this Court on February 20, 2009.

Count II of her Complaint seeks recovery by Plaintiff for the Department’s alleged

violations of the Illinois Human Rights Act (775 ILCS 5/1-101 et seq.)

(3)

The Eleventh Amendment establishes that an “unconsenting State is immune from

suits brought in federal courts by her own citizens as well as by citizens of another state.” See

Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (quoting Employees v. Miss.

Dep’t of Pub. Health and Welfare, 411 U.S. 279, 280 (1973)).

(4)

Here, the State of Illinois has not abrogated the Eleventh Amendment as to the claims

in Count II of Plaintiff’s Complaint. See 745 ILCS 5/1 (“Except as provided in the Illinois Public

Labor Relations Act, the Court of Claims Act, the State Officials and Employees Ethics Act, Section

1.5 of this Act, and, except as provided in and to the extent provided in the Clean Coal FutureGen

Case 3:09-cv-00133-DRH-PMF Document 4 Filed 05/01/09 Page 2 of 4 Page ID #11

for Illinois Act, the State of Illinois shall not be made a defendant or party in any court.”

(emphasis added))

(5)

Moreover, State law provides that the Illinois Human Rights Commission has sole

jurisdiction over claims arising under the Human Rights Act, like those in Count II of Plaintiff’s

Complaint. See 775 ILCS 5/8-111(C); Geise v. Phoenix Co. of Chicago, Inc., 159 Ill.2d 507, 518

(1994).

(6)

As such, this Court lacks subject matter jurisdiction over the claims in Count II of

Plaintiff’s Complaint.

(7)

Attached hereto and incorporated herein is a memorandum of law in support of this

motion.

WHEREFORE the Defendant, ILLINOIS DEPARTMENT OF CORRECTIONS respectfully

requests that this honorable Court GRANT its Motion to Dismiss Count II and DISMISS Count II

of Plaintiff’s Complaint with Prejudice.

Respectfully submitted,

ILLINOIS DEPARTMENT OF CORRECTIONS,

Defendant,

LISA MADIGAN, Attorney General,
State of Illinois,

/s/Joanna Belle Gunderson
JOANNA BELLE GUNDERSON
Illinois Bar # 6286292
Assistant Attorney General
Attorney for Defendant
500 South Second Street
Springfield, IL 62706
Telephone: (217) 782-1841
Facsimile: (217) 524-5091
[email protected]

Case 3:09-cv-00133-DRH-PMF Document 4 Filed 05/01/09 Page 3 of 4 Page ID #12

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

BETTY D. COOK,

Plaintiff,

-vs-

ILLINOIS DEPARTMENT
OF CORRECTIONS,

Defendant.

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No. 09-133-DRH

Certificate of Service

I hereby certify that on May 1, 2009, I electronically filed the foregoing Motion to Dismiss

Count II with the Clerk of Court using the CM/ECF system which will send notification of such

filing to the following counsel of record for Plaintiff:

Thomas O. Falb
[email protected]

and I hereby certify that on May 1, 2009, I mailed by United States Postal Service, the document to

the following non-registered participant:

NONE

Respectfully submitted,

/s/Joanna Belle Gunderson
JOANNA BELLE GUNDERSON
Illinois Bar # 6286292
Assistant Attorney General
Attorney for Defendant
500 South Second Street
Springfield, IL 62706
Telephone: (217) 782-1841
Facsimile: (217) 524-5091
[email protected]

Case 3:09-cv-00133-DRH-PMF Document 4 Filed 05/01/09 Page 4 of 4 Page ID #13