Murphy v. Smith, 15-3384

Decision Date21 December 2016
Docket NumberNo. 15-3384,15-3384
Citation844 F.3d 653
Parties Charles Murphy, Plaintiff–Appellee, v. Robert Smith and Gregory Fulk, Defendants–Appellants.
CourtU.S. Court of Appeals — Seventh Circuit

Fabian John Rosati, Attorney, Law Office of Fabian J. Rosati, Chicago, IL, for PlaintiffAppellee.

Mary Ellen Welsh, Attorney, Office of the Attorney General, Civil Appeals Division, Chicago, IL, for DefendantsAppellants.

Before Bauer, Manion, and Hamilton, Circuit Judges.

Hamilton, Circuit Judge.

Plaintiff Charles Murphy was an inmate in the Vandalia Correctional Center in Illinois. On July 25, 2011, correctional officers hit Murphy, fracturing part of his eye socket, and left him in a cell without medical attention. Murphy sued under 42 U.S.C. § 1983 and state-law theories. A jury awarded him damages on some of those claims, including some state-law claims, and the district court awarded attorney fees under 42 U.S.C. § 1988. Two of the defendants now appeal and challenge two aspects of the judgment. They argue that state-law sovereign immunity bars the state-law claims and that the Prison Litigation Reform Act requires that 25 percent of the damage award be used to pay the attorney fee award.

We affirm on the sovereign immunity defense. The Illinois doctrine of sovereign immunity does not apply to state-law claims against a state official or employee who has violated statutory or constitutional law. See Leetaru v. Board of Trustees of University of Illinois , 392 Ill.Dec. 275, 32 N.E.3d 583 (Ill.2015). Murphy alleged and ultimately proved such violations here. On the attorney fee issue, however, we reverse. Under 42 U.S.C. § 1997e(d), the attorney fee award must first be satisfied from up to 25 percent of the damage award, and the district court does not have discretion to reduce that maximum percentage. We remand for entry of a modified judgment.

I. Factual and Procedural Background

We recount the facts in the light reasonably most favorable to the verdict, which defendants do not challenge on the merits. On July 25, 2011, plaintiff Charles Murphy was a prisoner at the Vandalia Correctional Center. His assigned seat at mealtime that day had food and water on it. When he reported the mess, Correctional Officer Robert Smith first told him to clean it up himself and later told Murphy to leave the dining area. A different officer handcuffed Murphy, and Officer Smith escorted him to a segregation building. When they got there, a third officer asked Murphy what unit he normally stayed in, but Murphy ignored him. Officer Smith began moving his finger in and out of Murphy's ear, while asking Murphy if he was deaf and repeating the phrase "you can't hear, you can't hear." While this was happening, Lieutenant Gregory Fulk entered the building and saw what was happening.

Now escorted by three officers, Murphy was taken further into the segregation unit. Murphy did not struggle with the officers as they walked, although he taunted Officer Smith, promising what would happen the next time he "ain't got no handcuffs on." Hearing that, Officer Smith hit Murphy in the eye and then applied a choke hold with his arm around Murphy's throat. Murphy lost consciousness. When he came to, Lieutenant Fulk and Officer Smith were pushing him into a cell. With his hands still cuffed behind his back, Murphy fell face-first into the cell and hit his head on its metal toilet. The officers took off his clothes and handcuffs and left without having checked his condition.

Thirty or forty minutes later, a nurse came to see Murphy, who was ultimately sent to a hospital. His orbital rim—part of his eye socket—had been crushed and needed surgery. He had that surgery but did not recover completely. As of January 2015, his vision remained doubled and blurred.

In July 2012, Murphy filed suit in the Southern District of Illinois. After two rounds of complaint amendments and a partial grant of summary judgment for defendants, the case was tried to a jury. The jury found for plaintiff Murphy on four claims against two defendants—Lieutenant Fulk and Officer Smith, the appellants here. The jury found Officer Smith liable on two claims of state-law battery and one federal claim of unconstitutional use of force under the Eighth Amendment. The jury also found Lieutenant Fulk liable on a federal Eighth Amendment claim of deliberate indifference to a serious medical need. All told, the jury awarded $241,001 in compensatory and punitive damages against Officer Smith and $168,750 against Lieutenant Fulk. The district court reduced the combined award to a total of $307,733.82. That reduction is not at issue in this appeal. The district court also awarded attorney fees and ordered that 10 percent of the damages awarded be put toward paying those fees. Officer Smith and Lieutenant Fulk have appealed.

II. Sovereign Immunity

The defendants argue first that state-law sovereign immunity bars Murphy's state-law claims. The district court found, and Murphy contends on appeal, that defendants waived their state-law sovereign immunity defense. We find no waiver but find that state-law sovereign immunity does not shield these defendants from liability.

A. Sovereign Immunity in Illinois

Illinois is protected against civil suits in federal court by two relevant doctrines. First, the "Eleventh Amendment immunizes unconsenting states from suit in federal court." Benning v. Board of Regents of Regency Universities , 928 F.2d 775, 777 (7th Cir. 1991) ; see also Alden v. Maine , 527 U.S. 706, 712–13, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (explaining broader concept of sovereign immunity for which " Eleventh Amendment immunity ... is convenient shorthand’ "). Second, an Illinois statute provides, with exceptions not relevant here, that "the State of Illinois shall not be made a defendant or party in any court." 745 Ill. Comp. Stat. 5/1. Under the Erie Railroad doctrine, that statute governs claims in federal court arising under state law. Benning , 928 F.2d at 777, citing Erie Railroad v. Tompkins , 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). While both doctrines are often referred to as "sovereign immunity," they are not the same. See, e.g., Beaulieu v. Vermont , 807 F.3d 478, 485–86 (2d Cir. 2015) (distinguishing between Eleventh Amendment immunity and broader state sovereign immunity under Vermont law). As we explain below, important differences between the federal and state doctrines are decisive in this case.

B. Waiver

Before addressing the merits of the state-law sovereign immunity defense, we first address plaintiff Murphy's argument that defendants waived the defense. "[S]overeign immunity is a waivable affirmative defense." Park v. Indiana University School of Dentistry , 692 F.3d 828, 830 (7th Cir. 2012) (Eleventh Amendment), citing Board of Regents of University of Wisconsin System v. Phoenix International Software, Inc. , 653 F.3d 448, 463 (7th Cir. 2011) ; see also Lapides v. Board of Regents of University System of Georgia , 535 U.S. 613, 624, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (state's voluntary removal to federal court waived Eleventh Amendment immunity). If a state does not raise the immunity defense, "a court can ignore it." Wisconsin Dep't of Corrections v. Schacht , 524 U.S. 381, 389, 118 S.Ct. 2047, 141 L.Ed.2d 364 (1998). Because the defendants never relied and still do not rely on Eleventh Amendment immunity, they waived that defense. See Park , 692 F.3d at 830 (finding waiver where the state "never once raised the issue ... before the district court" and declined to raise the issue "even when prompted by this court at argument").1

State-law sovereign immunity, however, is a defense the defendants raised at least five times: in their answer, in the final pre-trial conference, in the jury instruction conference, in the defendants' post-trial motion, and on appeal. Those references were explicitly to state-law sovereign immunity. The answer, for example, claimed protection under "statutory sovereign immunity," and in both the post-trial motion and the briefs before this court, the defendants relied on the Illinois State Lawsuit Immunity Act.

Plaintiff Murphy has not cited nor have we found any comparable case finding a waiver of a sovereign immunity defense. Cf. Board of Regents , 653 F.3d at 467 (finding waiver where state filed suit in federal district court); Hill v. Blind Industries & Services of Maryland , 179 F.3d 754, 756 (9th Cir. 1999) (finding waiver when defendant "participat[ed] in extensive pre-trial activities and wait[ed] until the first day of trial before objecting ... on Eleventh Amendment grounds"). Other circuits hold that equal or less robust efforts to raise the immunity defense do not waive it. See, e.g., Union Pacific Railroad Co. v. Louisiana Public Service Comm'n , 662 F.3d 336, 339–40 (5th Cir. 2011) (no waiver when defendant raised issue for first time on appeal, after prevailing on a motion for summary judgment on the merits); Ashker v. California Dep't of Corrections , 112 F.3d 392, 394 (9th Cir. 1997) (no waiver when defendants raised issue "in their answer and pretrial statement ... and ... in their briefs filed in this court"). We reach the same conclusion here.

Plaintiff Murphy relies on the defendants' apparent willingness to defend this case on the merits. See Neinast v. Texas , 217 F.3d 275, 279 (5th Cir. 2000) ("Courts have found waiver ... where the state ... evidenced an intent to defend the suit against it on the merits."). But in this case the significance of that willingness is at best equivocal. Both the defendants and the district court seemed at times to blend the state-law immunity question with the merits of plaintiff's claims. For example, the district court said that sovereign immunity did not shield the defendants because the jury, in ruling on the battery claim, necessarily determined that they acted outside their authority.

Murphy v. Smith , No. 3:12–cv–00841–SCW, slip op. at 17–18 (S.D. Ill. ...

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