### In the 

# United States Court of Appeals For the Seventh Circuit

____________________ No. 13

- 3421 J OSEPH S ORRENTINO and L ABRON C. N EAL , on their own behalf and on behalf of all similarly situated people, Plaintiffs

- Appellants ,

v.

S ALVADOR A

. G ODINEZ , 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

— D ECIDED J ANUARY 23 , 2015

____________________

Before W OOD , Chief Judge , and E ASTERBROOK and T INDER , Circuit Judges

. W OOD , Chief Judge

. Joseph Sorr entino and Labron C. Neal are inmates at Illinois’s State ville Correctional Center. They p urchased several items from State ville’s commissary, but the prison later forbade inmates to possess those items in2 No. 13

- 3421

their cells. Sorrentino and Neal were among those whose property was removed, as the new rule required. They r esponded 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 co nclude that the dis trict 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 dis missal 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 fa vor . See Tamayo v. Blagojev ich , 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 commissar y throughout 2011 and 2012. Around May 25, 2011, Neal purchased a fan and signed a “personal property
contract , ” which obligat ed him to follow all Department of Corrections (DOC) rules related to use, ownership, and po ssession of the fan. Sorrentino purchased a typewriter on N ovember 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 i n Ju ly 2012 , and memorialized that action in a bulletin that Warden Marcus Hardy issued o n July 17 , 2012. T he bulletin announce d thatNo. 13

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henceforth inmates were prohibited from possessi ng more than one fan in their cells. On July 23, 2012, Hardy issued a similar bul letin altogether prohibiting typewriters in cells. The new policy offered several options for inmates who owned the newly prohibited types of proper ty. I nmates with typewriters could have them de stroyed; give them to vis itors; ship them to someon e outside the prison at no cost; store them in “offender personal property,” which is r eturned to inmate s upon release from prison; or donate them to the prison library. Extra fans were simply placed in sto rage 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 i ndicate that Sorrentino voluntarily gave the typewriter to the library , at oral argument c ounsel stated that he opte d to donate it (given his restricted range of choice). Some time later, Sorrentino and Neal f iled this suit , on behalf of themselves and an alleged class. (Unless the co ntext 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 d o not discuss that aspect of the case. ) The complaint alleged violations of the Takings and Con tracts Clause s 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 with drew the claim for breach of co ntr act to the extent it sought damages . The district court then4 No. 13

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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 dam ages. We are thus left with the ind ividual claims for injunctive and declar atory relief for the a lleged takings and breach es of con tract

. 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 a uthority 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) state s : “nor shall pr ivate property be taken for public use, without just compe nsation.” U.S. C ONST . amend. V. This provision “does not pr oscribe 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 c lause require a state to pay compensation prior to or at the same time as a taking. Id. Therefore, “if a State pr ovides 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 S orrentino’s claims. Illinois provide s such a procedure , but he has not tried to use it. E ven 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 griev ance.” Roe v. Cook Cnty. , 193 N.E . 472, 473 (Ill. 1934). Illinois courts disti nguish between a true tak ing , which requires a physical ta king of property for public use , and an action that damages property in some way , such as through restrictions on a ccess . See Patzner v. Baise , 552 N.E.2d 714, 717 ( Ill. 1990) ; Gra nite City Moose Lodge No. 272 v. Kramer, 449 N.E.2d 852, 855 (Ill. 1983)

. Illinois circuit courts have authority to hear true tak ings claims , which if proven , result in a writ of mand amus ordering the government to institute eminent domain proceed ings. See Patzner , 552 N.E.2d at 717

. The Illinois Court of Claims has exclusive jurisdiction over suits asser ting damages to property

. See id.

The distinction between a taking and a “damaging” (as the Illinois courts du b it) is some times unclear . S ee John Martinez, A Proposal for Establishing Specialized Federal and State "Takings Courts
, " 61 M E

. L. R EV . 467, 482 (2009) ( di scus s ing the Illinois Court of Claims and noting “the indi stinct line between the jurisdiction of a state’s court of claims and circuit court in takings cases”)

. Sorrentino describe s Godinez’s actions as a “ dama g ing

. ” T his characterization seems sensible: the DOC bulletins limited his access to and enjoyment of his fan and typewriter but did not complet ely 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 tr i-6 No. 13

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bunal versus another. If the confiscation of Sorrentino ’ s property is a true taking, he may pursue his claim in the a ppropriate Illinois circuit co urt. I f it is a damaging, state law directs him to the Illinois Court of Claims. N either Sorrent ino nor Neal has explored either of these avenues under Ill inois law and given the s tate a chance to provide compens ation . The takings claims are thus not ripe . See Williamson , 473 U.S. at 194

– 95.

Sorrentino tries to avoid this outcome with a futility a rgument: t he Illinois procedures are functionally nonexistent , he charges, because the Court of Claims lacks the power to grant the equi table relief he want s

. 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). So rrentino urges us to find futility here and to allow him to pr esent 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 c annot grant equitable relief, s ee Garimella v. Bd. of Trustees of Univ. of Ill. , 50 Ill. Ct. Cl. 350, 353 (1996) (conclu ding 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. o f Clifton , 498 F.3d 727, 732 (7th Cir. 2 007) (noting the “strong pr esumption that damages, not injunctive relief, is the appr opriate remedy in a Takings Clause action”).No. 13

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The question thus becomes whether Sorrentino has pr esented 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 legisla tive action authoriz ing a taking ” is po ssible. Id. Neither exception is applicable here

. Whatever “ta k ing” occurred with respect to the typewriter and fans at issue here was not for private use . Furthermore, Sorrentino has not mount ed a facial challenge of the kind we conte mplated in Peters

. There, we relied on San Remo Hotel, L.P. v. Cit y & 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 n ot su bstantially 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 arg ument 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 require ment 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 dismi ssal, 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 argue s that the terms of these alleged contract s 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 i mmunity. 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 b ased o n a contract with the state must bring suit in the Illinois Court of Claims,
rat her than in the relevant Illi nois c ir cuit c ourt or federal di strict court. See Brooks v. Ross , 578 F.3d 574, 579 (7th Ci r. 2009) (finding that 745 ILCS 5/1’s stipulation that tort actions against Illinois must be brought in the Court of Claims means that I llinois 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 tribu nals, because f ederal courts may not entertain suits again st states based on stateNo. 13

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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

. S overeign immun ity normally does not bar suits for injunctive relief in federal
court alleging that a state official violated the federal const itution or laws

. S ee Ex Parte Young, 209 U.S. 123 (1908). But the plaintiffs are not asserting such a claim. Sorrentino claims only that the Director (acting f or the state) breached a contract. T he State Lawsuit Immunity Act forbid s state

- law suits outside of the Court of Claims that allege that the off icial merely “ex ceeded his authority by breaching a contract

. ” Smith v. Jones , 497 N.E.2d 738, 7 40

– 41 ( Ill. 198 6). 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 fed eral court , So rre ntino and Neal may seek to pursue the ir claims in the appr opriate Illinois forum.