In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 13-3421

JOSEPH SORRENTINO and LABRON C.

NEAL, on their own behalf and on behalf 

of all similarly situated people,

Plaintiffs-Appellants,

v.

SALVADOR 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.

____________________

ARGUED SEPTEMBER 10, 2014 — DECIDED JANUARY 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 
2 No. 13-3421

their cells. Sorrentino and Neal were among those whose 

property was removed, as the new rule required. They responded 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 conclude 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 FED.

R. CIV. 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 possession of the fan. Sorrentino purchased a typewriter on November 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 
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 visitors; ship them to someone outside the prison at no cost;

store them in “offender personal property,” which is returned to inmates upon release from prison; or donate them

to the prison library. Extra fans were simply placed in storage 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 context 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 contract to the extent it sought damages. The district court then 
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 individual claims for injunctive and declaratory relief for the alleged 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 authority 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 private property be taken for public use, without just compensation.” U.S. CONST. amend. V. This provision “does not proscribe 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 provides 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. 
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 distinguish between a true taking, which requires a physical taking of property for public use, and an action that damages 

property in some way, such as through restrictions on access. See Patzner v. Baise, 552 N.E.2d 714, 717 (Ill. 1990); Granite 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 mandamus 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 asserting 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 ME. L. REV. 467, 482 (2009) (discussing the Illinois Court of Claims and noting “the indistinct 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-
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 appropriate Illinois circuit court. If it is a damaging, state law 

directs him to the Illinois Court of Claims. Neither Sorrentino nor Neal has explored either of these avenues under Illinois law and given the state a chance to provide compensation. The takings claims are thus not ripe. See Williamson, 473 

U.S. at 194–95.

Sorrentino tries to avoid this outcome with a futility argument: 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). Sorrentino urges us to find futility here and to allow him to present 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) (concluding 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 Clifton, 498 F.3d 727, 732 (7th Cir. 2007) (noting the “strong presumption that damages, not injunctive relief, is the appropriate remedy in a Takings Clause action”). 
No. 13-3421 7

The question thus becomes whether Sorrentino has presented 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 possible. 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 contemplated 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 substantially 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 argument 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 dismissal, however, should have been without prejudice, so that 

they may avail themselves of whatever procedures may still 

be available under Illinois law. 
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 immunity. See 745 ILL. COMP. STAT. ANN. 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 ILL. COMP. STAT. ANN. 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 district 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 
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 constitution 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 official 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, Sorrentino and Neal may seek to pursue their claims in the appropriate Illinois forum.