Illinois Official Reports 

Appellate Court 

Cowper v. Nyberg, 2014 IL App (5th) 120415

Appellate Court 

Caption 

DEANGELO M. COWPER, Plaintiff-Appellant, v. RANDY 

NYBERG, in His Capacity as Saline County Circuit Clerk, and 

KEITH BROWN, in His Capacity as Saline County Sheriff, 

Defendants-Appellees. 

District & No. Fifth District 

Docket No. 5-12-0415 

Filed May 9, 2014 

Held 

(Note: This syllabus 

constitutes no part of the 

opinion of the court but 

has been prepared by the 

Reporter of Decisions 

for the convenience of 

the reader.)

Plaintiff’s negligence action against defendant circuit clerk and 

defendant county sheriff under section 5-4-1(e)(4) of the Unified Code 

of Corrections alleging that defendants failed to accurately calculate 

the credit plaintiff should have received for his presentence 

incarceration against the 27-month sentence imposed for a probation 

violation was improperly dismissed, notwithstanding the fact that 

section 5-4-1(e)(4) does not expressly allow a private cause of action 

for an incorrect calculation of such a sentencing credit, since plaintiff 

is a member of one of the classes the statute is intended to benefit, the 

implication of a private cause of action is consistent with the purposes 

of the Code, plaintiff’s wrongful incarceration is an injury the statute 

is designed to prevent, and a civil private action for compensatory 

damages is necessary to provide plaintiff with an adequate remedy for 

defendants’ breach of their mandatory duties. 

Decision Under 

Review 

Appeal from the Circuit Court of Saline County, No. 12-L-4; the Hon. 

Todd D. Lambert, Judge, presiding. 

Judgment Reversed and remanded. 
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Counsel on 

Appeal 

Andrew T. Flynn and Glenn R. Tetzlaff, both of Glenn R. Tetzlaff & 

Associates, of Marion, for appellant. 

Joseph A. Bleyer and K. Rockne Bleyer, both of Bleyer & Bleyer, of 

Marion, for appellees. 

Panel JUSTICE CHAPMAN delivered the judgment of the court, with 

opinion. 

Justices Spomer and Stewart concurred in the judgment and opinion. 

 OPINION 

¶ 1 Deangelo M. Cowper was convicted of retail theft in 2003, which resulted in a probation 

violation. The trial court sentenced Cowper to 27 months of imprisonment for the probation 

violation. In 2012, Cowper filed his complaint alleging negligence against the Saline County 

circuit clerk, Randy Nyberg, and the Saline County sheriff, Keith Brown, for not transmitting 

to the Illinois Department of Corrections (IDOC) the accurate number of days he had served in 

jail for which he was to receive credit against the 27-month sentence. As a result of the 

incorrect credit against his sentence, Cowper was incarcerated beyond his legal release date. 

The defendants filed a motion to dismiss Cowper’s complaint pursuant to section 2-615 of the 

Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). The trial court granted the motion 

and dismissed Cowper’s complaint. Cowper appeals and argues that section 5-4-1(e)(4) of the 

Unified Code of Corrections (730 ILCS 5/5-4-1(e)(4) (West 2010)) imposes legal duties upon 

the defendants to compile and transmit to the IDOC the days of credit against a sentence of 

imprisonment. He also claims that he has a right to pursue a private cause of action against 

these defendants for breach of those duties. 

¶ 2 FACTS 

¶ 3 On May 12, 2011, Cowper pled guilty to three counts of a 2003 felony case. The court 

sentenced him to 27 months’ imprisonment with 1 year of mandatory supervised release upon 

discharge. The judgment-sentence filed on June 1, 2011, included a lengthy summary of the 

days Cowper spent in custody for which he was to receive credit. The judgment-sentence order 

gave Cowper 275 days of credit against the 27-month sentence. Cowper was transferred to 

prison on June 2, 2011. After application of the 275 days of credit, Cowper’s sentence was 

reduced from 27 months to 13 months and 15 days. On June 23, 2011, Cowper filed a motion 

in the Saline County criminal court to recalculate the time. On November 22, 2011, the State 

filed its response, stating that after an investigation, the State concluded that the 275 days 

calculation of credit was wrong. The State’s investigation revealed that Cowper was in Saline 

County custody from January 8, 2008, until February 2, 2008, and from November 29, 2010, 

until May 11, 2011, and that the State did not give him credit for those days in the original 

judgment-sentence. The court entered an order directing the State to prepare an amended 

mittimus to reflect the correct number of days of credit for time served. The State filed its 
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amended judgment-sentence directed to the IDOC on November 22, 2011. Cowper had 

already been released from the Illinois Department of Corrections on October 16, 2011, after 

serving the full sentence. The corrected mittimus allowed an additional 191 days’ credit for 

time served–for a total of 466 days of credit. As a result of his release from prison, Cowper 

received no benefit from the additional 191 days of credit for time served. 

¶ 4 On January 20, 2012, Cowper filed suit against the defendants alleging negligence. He 

claimed that each defendant had a duty to transmit the accurate number of days for which he 

was entitled to credit. Cowper claims that this duty is derived from section 5-4-1(e)(4) of the 

Unified Code of Corrections (730 ILCS 5/5-4-1(e)(4) (West 2010)). He alleged that if he had 

received proper credit for time served, the credit would have been greater than the 

sentence–that defendants breached their duty by failing to transmit to the IDOC the accurate 

number of days Cowper had been in custody for which he was entitled credit against his 

sentence. Because of the error in credit against his sentence, Cowper was incarcerated from 

June 2, 2011, through October 16, 2011–a period of 137 days. Cowper alleged that as a direct 

and proximate result of defendants’ negligence, he was deprived of his freedom and liberties, 

which resulted in his inability to find and retain employment and an inability to be with and 

care for his family. Cowper asked the court to award him compensatory damages. 

¶ 5 On March 1, 2012, defendants filed a motion seeking to dismiss Cowper’s complaint 

pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 2010)). 

Defendants claimed that Cowper’s complaint was defective on its face and did not allege 

sufficient facts upon which a negligence cause of action could be sustained. Defendants argued 

that section 5-4-1(e)(4) of the Unified Code of Corrections did not allow a private cause of 

action for negligence. 

¶ 6 On July 6, 2012, the trial court granted defendants’ motion to dismiss. The trial court’s 

stated reasoning frames the issues on appeal, and so we include portions of that order for 

reference: 

 “Before the Court is [Defendants’] Motion to Dismiss. The Court GRANTS said 

Motion in respect to the [Defendant] Clerk. [Pursuant to the statute], the Clerk is 

required to send to DOC information he receives from the Sheriff concerning time 

served. No allegation has been made by [Plaintiff] that the [Defendant] Clerk failed to 

transmit such information. As transmission of such information is the only duty of the 

[Defendant] Clerk pursuant to said statute, and no allegation has been made that the 

[Defendant] Clerk failed to do so, [Plaintiff] has failed to allege a duty on the part of the 

[Defendant] Clerk, a breach of which would result in a cause of action. As 

[Defendant’s] Motion pertains to the [Defendant] Sheriff, said Motion is GRANTED 

as well for the reason that said statute fails to convey a private cause of action. *** 

[Plaintiff] could have appealed from his sentence and/or filed a post-conviction petition 

to correct any wrong calculation of his good time credit. Therefore this action is not 

necessary to correct that wrong. Additionally, the statute is a criminal sentencing 

statute. [Plaintiff] is not part of the class of persons for whose benefit the statute was 

designed. None of the other requirements are satisfied as well. [Plaintiff’s] Complaint 

is therefore dismissed.” 

¶ 7 Cowper appeals this order. 

¶ 8 LAW AND ANALYSIS 
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¶ 9 When the trial court is presented with a motion to dismiss a case for failure to state a cause 

of action pursuant to section 2-615 of the Code of Civil Procedure (735 ILCS 5/2-615 (West 

2010)), the court must determine whether the complaint sets forth sufficient facts that, if 

established, could entitle the plaintiff to relief. Bryson v. News America Publications, Inc., 174 

Ill. 2d 77, 86, 672 N.E.2d 1207, 1214 (1996). The trial court must accept all well-pleaded facts 

in the complaint as true and draw reasonable inferences from those facts that are favorable to 

the plaintiff. Bryson, 174 Ill. 2d at 86, 672 N.E.2d at 1213. Because the trial court is not being 

called upon to judge any witness’s credibility or weigh facts, on appeal we review the matter 

de novo. Jackson v. Michael Reese Hospital & Medical Center, 294 Ill. App. 3d 1, 9, 689 

N.E.2d 205, 211 (1997). 

¶ 10 We begin the legal analysis in this case by determining whether an inmate can pursue a 

private cause of action pursuant to section 5-4-1(e)(4) of the Unified Code of Corrections 

(Code) (730 ILCS 5/5-4-1(e)(4) (West 2010)). We note that Cowper has not cited, nor have we 

found, any reported case addressing whether an inmate can file a civil cause of action pursuant 

to section 5-4-1(e)(4) of the Code for errors in calculating credits. 

¶ 11 In analyzing Cowper’s claim that section 5-4-1(e)(4) of the Code allows a private cause of 

action, we review the statute itself to determine whether an express cause of action is allowed. 

Moore v. Lumpkin, 258 Ill. App. 3d 980, 989, 630 N.E.2d 982, 989 (1994); Jordan v. O’Fallon 

Township High School District No. 203 Board of Education, 302 Ill. App. 3d 1070, 1079, 706 

N.E.2d 137, 143 (1999). If the court can determine the legislature’s intent from the plain 

language of the statute, then the court should not resort to other interpretative aids. Jordan, 302 

Ill. App. 3d at 1079, 706 N.E.2d at 143 (citing People v. Fitzpatrick, 158 Ill. 2d 360, 364-65, 

633 N.E.2d 685, 687 (1994)). 

¶ 12 Section 5-4-1(e)(4) of the Unified Code of Corrections provides: 

 “(e) The clerk of the court shall transmit to the department, agency or institution, if 

any, to which the defendant is committed, the following: 

 * * * 

 (4) the number of days, if any, which the defendant has been in custody and for 

which he is entitled to credit against the sentence, which information shall be 

provided to the clerk by the sheriff[.]” 730 ILCS 5/5-4-1(e)(4) (West 2010). 

¶ 13 Section 5-4-1(e)(4) sets forth the actions the clerk of the court and the county sheriff must 

take in compiling and transmitting information regarding a defendant’s credits against 

sentence. The use of the word “shall” generally indicates that the legislative intent is 

mandatory. People v. Woodard, 175 Ill. 2d 435, 445, 677 N.E.2d 935, 940 (1997). However, 

the language of the statute does not set forth any inmate rights in the event of an error in credit 

calculation. Thus, we find that the Code fails to provide an inmate with an express right to 

pursue a cause of action for an improper calculation of credits against sentence. 

¶ 14 The fact that the wording of the statute does not expressly allow a private cause of action 

for violations is not necessarily dispositive of whether the court will allow one. Sawyer Realty 

Group, Inc. v. Jarvis Corp., 89 Ill. 2d 379, 386, 432 N.E.2d 849, 852 (1982). The court can 

imply a private cause of action where it is consistent with the underlying purpose of the statute 

and necessary to achieve the aim of the legislature. Id. The public policy underlying the 

statutory enactments may implicate a private right of action for certain individuals when they 

belong to a class of persons that the Code was designed to protect. Id. at 386-87, 432 N.E.2d at 

852. 
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¶ 15 In order for Cowper to bring his claim under the statute, he must establish that he meets the 

criteria for an implied cause of action. Case law has established four factors which must be met 

to imply a private cause of action: 

“(1) a plaintiff is a member of the class for whose benefit a piece of legislation was 

enacted; (2) it is consistent with the underlying purpose of the legislation; (3) a 

plaintiff’s injury is one the legislation was designed to prevent; and (4) it is necessary to 

provide an adequate remedy for violations of the legislation.” Noyola v. Board of 

Education of the City of Chicago, 284 Ill. App. 3d 128, 131-32, 671 N.E.2d 802, 805

(1996), aff’d, 179 Ill. 2d 121, 688 N.E.2d 81 (1997). 

Corgan v. Muehling, 143 Ill. 2d 296, 312-13, 574 N.E.2d 602, 609 (1991); Sawyer Realty 

Group, Inc., 89 Ill. 2d at 388-89, 432 N.E.2d at 853; Rodgers v. St. Mary’s Hospital of 

Decatur, 149 Ill. 2d 302, 308, 597 N.E.2d 616, 619 (1992). 

¶ 16 In considering Cowper’s argument for an implied cause of action, we first review the stated 

purpose of the Unified Code of Corrections. 

 “§ 1-1-2. Purposes. The purposes of this Code of Corrections are to: 

 (a) prescribe sanctions proportionate to the seriousness of the offenses and permit 

the recognition of differences in rehabilitation possibilities among individual 

offenders; 

 (b) forbid and prevent the commission of offenses;

 (c) prevent arbitrary or oppressive treatment of persons adjudicated offenders or 

delinquents; and 

 (d) restore offenders to useful citizenship.” 730 ILCS 5/1-1-2 (West 2010). 

¶ 17 We now turn to the analysis of the four factors necessary to imply a statutory private cause 

of action. 

¶ 18 First, we determine whether Cowper belongs to one of the classes of people for whose 

benefit the statute was enacted. Cowper alleges that he was wrongly detained in an IDOC 

facility for 137 days. A plain reading of the Unified Code of Corrections purposes section 

makes it clear that an adjudicated offender who claims to be wrongly deprived of his liberty 

places Cowper in one of the classes of people for whose benefit the statute was enacted, i.e., 

“(c) prevent arbitrary or oppressive treatment of persons adjudicated offenders or delinquents; 

and (d) restore offenders to useful citizenship” (730 ILCS 5/1-1-2(c), (d) (West 2010)). 

¶ 19 Second, we determine whether a private cause of action is consistent with the purpose of 

the legislation. The defendants argue that the underlying purpose of the Code is for the 

protection of the public and not for inmates’ rights. Consequently, defendants argue that 

allowing an inmate to bring a private cause of action would be inconsistent with this purpose. 

We disagree with this statutory interpretation. The plain language of the statute and the case 

law set forth dual purposes directed toward both the public and the adjudicated offenders. The 

purposes of the Code are “designed to protect society from future criminal conduct by past 

offenders (730 ILCS 5/1-1-2(b) (West 1994)), prevent arbitrary or oppressive deprivations of 

the liberties of offenders (730 ILCS 5/1-1-2(c) (West 1994)), and restore offenders to useful 

citizenship (730 ILCS 5/1-1-2(d) (West 1994)).” Turner v. Campagna, 281 Ill. App. 3d 1090, 

1094, 667 N.E.2d 683, 685 (1996). “The general purpose of the Code of Corrections is to 

rehabilitate the offender, if possible, and to restore him to useful citizenship.” People v. Mahle, 

57 Ill. 2d 279, 285, 312 N.E.2d 267, 271 (1974). 
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¶ 20 Defendants cite to McNeil v. Carter in support of their argument that a private cause of 

action is inconsistent with the purpose of the Code. McNeil v. Carter, 318 Ill. App. 3d 939, 

943, 742 N.E.2d 1277, 1281 (2001). The McNeil court held that the Code did not imply a 

private cause of action for an inmate who allegedly received inadequate medical attention. Id. 

In so holding, the court noted that “the primary purpose and function of the Code is to protect 

the public.” Id. To the extent that McNeil finds this purpose to be overarching, excluding the 

dual purpose directed toward the treatment and rehabilitation of inmates, we reject the court’s 

reasoning. However, we find McNeil inapposite. In applying the holding in McNeil, defendants 

conflate the type of liberty interests in McNeil–those more related to the ordinary day-to-day 

incidents of prison life–with the type of liberty interests in the instant case–freedom from 

restraint. The courts must necessarily balance prison management concerns with the prisoners’ 

liberty in determining the amount of process due. Sandin v. Conner, 515 U.S. 472, 478 (1995). 

Furthermore, we believe that the crux of the McNeil decision revolves around factor 

four–whether a private cause of action is necessary to provide an adequate remedy, which we 

will discuss in turn under the fourth factor analysis. 

¶ 21 Third, we determine whether Cowper’s injury is one the legislation was designed to 

prevent. Cowper suffered a 137-day incarceration beyond his legal release date. The 

prevention of this type of injury is consistent with the stated statutory goals of preventing 

arbitrary and oppressive treatment and returning offenders to useful citizenship. Furthermore, 

section 5-4-1(e)(4) of the Code states, “The clerk of the court shall transmit to the department, 

agency or institution, if any, to which the defendant is committed, the following: *** (4) the 

number of days, if any, which the defendant has been in custody and for which he is entitled to 

credit against the sentence, which information shall be provided to the clerk by the sheriff 

***.” (Emphases added.) 730 ILCS 5/5-4-1(e)(4) (West 2010). “Generally, the use of the word 

‘shall’ in a statute is regarded as indicating a mandatory rather than a directory intent.” 

Woodard, 175 Ill. 2d at 445, 677 N.E.2d at 940. The statutory designation of persons 

responsible for the mandatory assembling of and transmission of the credit against sentence 

data is additional evidence of the statutory intent to prevent a prisoner’s wrongful confinement. 

¶ 22 Fourth, we determine whether a private cause of action is necessary to provide an adequate 

remedy for violations of the statute. Citing McNeil v. Carter, defendants argue that a private 

cause of action is not necessary because section 3-8-8 of the Code (730 ILCS 5/3-8-8 (West 

2010)) allows for a grievance procedure before the administrative review board where relief 

may be obtained. McNeil v. Carter, 318 Ill. App. 3d 939, 742 N.E.2d 1277 (2001). The facts in 

McNeil warrant further review since McNeil involved grievance issues that were internal to the 

IDOC, unlike the case before us. In McNeil, plaintiff, an inmate, filed suit against several 

IDOC employees. Id. at 940, 742 N.E.2d at 1279. Count I alleged that the defendants did not 

adequately test and segregate inmates with infectious diseases, forcing healthy inmates to 

share cells with infectious inmates. Id. at 941, 742 N.E.2d at 1279. Count I further alleged that 

plaintiff was incorrectly placed on a special medical diet and not properly monitored. Id. 

Plaintiff claimed that these acts violated several sections of the Code. Id. In applying the fourth 

factor to count I, the court found that a private cause of action under the Code was unnecessary 

to provide an adequate remedy because (1) the inmate could bring a claim of misconduct 

before the administrative review board, or (2) the inmate could file a federal cause of action 

under the eighth amendment. Id. at 943, 742 N.E.2d at 1281.
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¶ 23 Defendants’ reliance on McNeil is misplaced, as the absence of other remedies 

distinguishes this case from McNeil. Cowper has no administrative remedy because the IDOC 

lacks the authority to modify a sentence it receives from the sentencing court. Two Court of 

Claims cases are instructive. Evans v. State, 55 Ill. Ct. Cl. 395 (2002); Patton v. State, 47 Ill. 

Ct. Cl. 174 (1994). The Evans case involved an incarceration extended beyond the legal release 

date. Evans, 55 Ill. Ct. Cl. 395. Evans sued the IDOC on a theory of negligent incarceration 

claiming that the IDOC knew or should have known that his sentence contained an error in the 

credit calculation for good time served. Id. at 397. The Court of Claims held that the IDOC has 

no authority to correct a sentencing court’s order and consequently is not responsible for 

sentencing errors. Id. at 398. The only relief was to be found in the sentencing court. Id. In so 

holding the court stated: “The error in the original mittimus in this case was made by the circuit 

court, possibly due to an error or omission by the circuit court clerk’s office or the sheriff’s 

office. Whatever its source, the error was fixed in the circuit court sentencing order, which 

IDOC was duty bound to enforce, and could not unilaterally correct.” Id. The Evans court went 

on to state, “The statutes place the duty of transmitting convicts [sic] sentencing data to IDOC 

on the county sheriff and the circuit clerk, as this court noted in Patton, supra (see, e.g., 

Unified Code of Corrections, //5-4-1, 3-8-1; 730 ILCS 5/5-4-1, 5/3-8-1).” Id. In Patton, the 

defendant was sentenced to five years in the IDOC. Patton, 47 Ill. Ct. Cl. at 176. The 

sentencing order provided that the defendant was to be given credit for time served while in jail 

awaiting trial, but did not quantify the credit or a projected “out date.” Id. There was no 

evidence proving the IDOC ever received any jail credit data from either the circuit clerk or the 

sheriff. Id. at 178. Plaintiff sued the state claiming that the IDOC negligently kept him in 

confinement beyond his legal release date. Id. The court held that the State was not responsible 

for the county’s failure to transfer the jail credit data. The Patton court stated: 

 “The Unified Code of Corrections imposes on the county sheriff and circuit clerk 

the duties of assembling that data and transmitting it to Respondent. Section 

5-4-1(e)(4) requires the sheriff to provide the information to the circuit clerk, who in 

turn is to then transmit it to Respondent. (730 ILCS 5/5-4-1(e)(4).) Section 3-8-1(a) 

imposes a separate duty on the sheriff to independently transmit that data to 

Respondent. (730 ILCS 5/3-8-1(a).) Thus, if all had operated according to the statutory 

scheme, Respondent would have received the jail credit data here twice, once from the 

circuit clerk and once again from the sheriff.” Id. at 179-80. 

¶ 24 It is clear from the holdings in Evans and Patton that Cowper could not have obtained any 

relief by filing a grievance with the administrative review board, as the IDOC has no authority 

to correct sentencing errors in a court order. 

¶ 25 More recently, the United States Court of Appeals for the Seventh Circuit has addressed 

this issue in Shaw v. Germain, 496 F. App’x 646 (7th Cir. 2012). In Shaw, an inmate brought a 

42 U.S.C. § 1983 suit against IDOC officials alleging an eighth amendment violation based on 

a sentencing error. Id. at 647. The Seventh Circuit held that the IDOC did not have the 

authority to amend a sentencing order issued by an Illinois court, citing to sections 5-4-1(e) and 

3-8-1 of the Code (730 ILCS 5/5-4-1(e), 3-8-1 (West 2008)) and Evans, 55 Ill. Ct. Cl. at 

397-98. Shaw, 496 F. App’x at 649. The court stated, “Shaw should have sought relief from the 

state court.” Id.

¶ 26 Defendants also cite to Abbasi v. Paraskevoulakos in support of their argument that a 

private cause of action is not necessary to provide Cowper with an adequate remedy. Abbasi v. 
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Paraskevoulakos, 187 Ill. 2d 386, 718 N.E.2d 181 (1999). In Abbasi, the plaintiff sought 

damages for injuries she incurred from ingesting lead-based paint. Id. at 388, 718 N.E.2d at 

182. The plaintiff pled both common law negligence evidenced by violation of the Lead 

Poisoning Prevention Act (410 ILCS 45/1 et seq. (West 1996)) and a private cause of action 

under the Lead Poisoning Prevention Act. Id. at 389, 718 N.E.2d at 183. The Illinois Supreme 

Court held that it would not imply a private cause of action under the Act because there already 

existed an adequate remedy under plaintiff’s common law negligence theory. Id. at 393, 718 

N.E.2d at 185. The court stated, “A private cause of action under the Act would be identical to 

plaintiff’s common law negligence action pending in the circuit court.” Id. The important 

distinction between Abbasi and this case is the type of statute at issue. The fact that the Lead 

Poisoning Prevention Act was a statute “designed to protect human life” allowed plaintiff to 

plead the violation of the Act as prima facie evidence of negligence. It is settled law that a 

“violation of a statute or ordinance designed to protect human life or property is prima facie

evidence of negligence.” Kalata v. Anheuser-Busch Cos., 144 Ill. 2d 425, 434, 581 N.E.2d 656, 

661 (1991). “Statutes [that are] designed to protect human life or property establish the 

standard of conduct required of a reasonable person.” Bier v. Leanna Lakeside Property Ass’n, 

305 Ill. App. 3d 45, 58, 711 N.E.2d 773, 783 (1999) (citing Noyola v. Board of Education of 

the City of Chicago, 179 Ill. 2d 121, 130, 688 N.E.2d 81, 84-85 (1997)). We believe that the 

statute in question here cannot be characterized as a safety statute so as to allow Cowper to 

plead the statutory violation as a common law negligence theory. Therefore, unlike in Abbasi, 

a finding of an implied cause of action under the Unified Code of Corrections does not 

duplicate an existing remedy. 

¶ 27 Nor does Cowper’s suit against the circuit clerk and the sheriff serve as a basis for a 

constitutional claim. In Daniels v. Williams, 474 U.S. 327, 328 (1986), a prisoner brought an 

action in federal district court under 42 U.S.C. § 1983 against a deputy sheriff for injuries he 

alleged he sustained when falling on a pillow negligently left on a stairway by the deputy. Id. 

The United States Supreme Court held that the due process clause is not implicated by an 

official’s negligent act causing unintended loss of or injury to life, liberty, or property. Id. In so 

holding the Court went on to state, “That injuries inflicted by governmental negligence are not 

addressed by the United States Constitution is not to say that they may not raise significant 

legal concerns and lead to the creation of protectible legal interests.” Id. at 333. “Whatever 

other provisions of state law or general jurisprudence he may rightly invoke, the Fourteenth 

Amendment to the United States Constitution does not afford him a remedy.” Id. at 336. 

Incarcerating a prisoner beyond his legal release date does not implicate the eighth amendment 

unless it is the product of “deliberate indifference.” Campbell v. Peters, 256 F.3d 695, 700 (7th 

Cir. 2001). Here, it is clear that because Cowper’s claims against the circuit clerk and the 

sheriff sound in negligence, he is not afforded a constitutional remedy. 

¶ 28 Also relevant to our analysis is the nature of the defendants’ alleged negligent conduct with 

respect to the potential for an immunity defense. In general, public officials cannot be held 

liable for discretionary acts performed within the scope of their authority. Mora v. State, 68 Ill. 

2d 223, 233-34, 369 N.E.2d 868, 873 (1977). If an act is ministerial in nature, the official may 

be subject to liability for the negligent performance of that duty. Hicks v. Williams, 104 Ill. 

App. 3d 172, 177, 432 N.E.2d 1278, 1281 (1982). “Ministerial acts are those that a person 

performs on a given state of facts in a prescribed manner, in obedience to the mandate of legal 

authority, and without reference to the official’s discretion as to the propriety of the act.” 
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Koltes v. St. Charles Park District, 293 Ill. App. 3d 171, 176, 687 N.E.2d 543, 546 (1997). We 

believe that the legislative use of the language “shall” in describing the defendants’ duties 

indicates a mandatory intent. Woodard, 175 Ill. 2d at 445, 677 N.E.2d at 940. We find the 

described conduct to be ministerial. People v. Scott, 277 Ill. App. 3d 565, 566, 660 N.E.2d 

1316, 1316-17 (1996) (granting pretrial-custody credit against a fine pursuant to section 

110-14 of the Code of Criminal Procedure of 1963 (725 ILCS 5/110-14 (West 1994)) is a 

simple ministerial act). 

¶ 29 By dismissing the complaint, the trial court here effectively found that Cowper was not 

entitled to any relief from being wrongfully incarcerated for 137 days. Cowper’s timely 

posttrial motion to recalculate his time went unaddressed by the court for almost five months. 

By the time the State conceded the mistake and a new mittimus was issued, Cowper realized no 

benefit, as he had already been released from prison. At this juncture, compensatory damages 

are the only relief that will make Cowper whole. While Cowper’s injury may not be a 

constitutionally protectable liberty interest as pled, we believe that public policy dictates that 

the wrongful deprivation of one’s liberty raises significant legal concerns that must be 

redressed. 

¶ 30 We find that as an incarcerated adjudicated offender, Cowper was a member of one of the 

classes for whose benefit the statute was enacted; that implication of a private cause of action is 

consistent with two of the stated purposes of the Code–to prevent arbitrary or oppressive 

treatment of adjudicated offenders and to restore offenders to useful citizenship; that Cowper’s 

wrongful incarceration is an injury the statute is designed to prevent; and that a civil private 

cause of action for compensatory damages is necessary to provide an adequate remedy for the 

breach of the mandated duties of both the sheriff and the clerk. Under these circumstances, we 

recognize an implied private right of action for damages. 

¶ 31 We conclude that section 5-4-1(e)(4) of the Unified Code of Corrections places the duty of 

assembling and transmitting the prisoner’s sentencing data to the IDOC on the sheriff and the 

circuit court clerk–the sheriff to assemble the credit against sentence data and transmit that 

information to the clerk, and the clerk to transmit the information received from the sheriff to 

the IDOC. At the pleading stage we view the facts and their inferences in a light most favorable 

to Cowper and find that he has adequately pled duty, breach, proximate cause, and damages 

sufficient to state a cause of action implied by the statute. 

¶ 32 CONCLUSION 

¶ 33 We hold that the trial court erred in granting the dismissal of Cowper’s statutory claim. 

Accordingly, we reverse the judgment and remand the cause for further proceedings consistent 

with our holding. 

¶ 34 Reversed and remanded.