IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF ILLINOIS

JAMES F. OSTERBUR, )

)

Plaintiff, )

)

-vs- ) No. 05-2038

)

CARLE CLINIC, INC.; AMERICAN MEDICAL )

ASSOCIATION; STATE OF ILLINOIS; )

UNITED STATES OF AMERICA, )

)

Defendants. )

MOTION TO DISMISS

COMES NOW the defendant, State of Illinois, by and through its counsel, Lisa

Madigan, Attorney General of the State of Illinois, and pursuant to Rules 12(b)(1) and

12(b)(6) of the Federal Rules of Civil Procedure, hereby moves to dismiss the complaint

of the plaintiff. In support thereof, the following statements are made.

1. Plaintiff, pro se, has brought the instant cause of action against, inter alia, the

State of Illinois.

2. Although the complaint is long and rambling, it appears that plaintiff is

disgruntled with the manner in which some of his medical providers bill for their services.

See Docket #1.

3. The allegations against the defendant, State of Illinois, are not clear.

4. As such, the complaint fails to state a claim against the State of Illinois upon

which relief can be granted.

5. Plaintiff apparently seeks damages against all of the defendants. See,e.g.,

Docket #1, ^49.

6. An action against the State of Illinois for damages is barred by the Eleventh

Amendment to the Constitution of the United States.

7. A memorandum of law in support of the instant motion is attached hereto and

incorporated by reference herein.

WHEREFORE, for the foregoing reasons, defendant, State of Illinois, respectfully

requests that this honorable Court dismiss this case against it and enter judgment in favor

of the State of Illinois and against the plaintiff.

Respectfully submitted,

STATE OF ILLINOIS,

Defendant,

Lisa Madigan, Attorney General,

State of Illinois,

' -Attorney for Defendant,

By: s/Karen L. McNaught__________

Karen L. McNaught

Assistant Attorney General

Attorney for Defendant

Office of the Attorney General

500 South Second Street

Springfield, IL 62706

Telephone: (217)782-1841

Facsimile: (217)524-5091

kmcnauqht(a)atg. state, il. us

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS

COMES NOW the defendant, State of Illinois, by and through its counsel, Lisa

Madigan, Attorney General of the State of Illinois, and hereby submits the following

memorandum of law in support of its motion to dismiss.

FACTS

Plaintiff is a pro se litigant and has brought a complaint for damages against, inter

alia, the State of Illinois. In the complaint, plaintiff alleges that he received four different

bills for medical care that he received at Carle, Inc. See Complaint, p. 4,1J1. He alleges

that this system is unfair and seeks to having billing practices and the entire medical

industry change. See Complaint, pp. 4-9.

In his complaint, plaintiff has alleged violations of his first and fourteenth

amendment rights. See Complaint, p. 25, H52. Although he does not state it, defendant,

State of Illinois, presumes that this alleged constitutional violation is brought pursuant to

42U.S.C.º1983.

From the face of the complaint, it does not appear that there are any allegations

against the State of Illinois. Nevertheless, plaintiff seeks "the additional charge of

$50,000.00." See Complaint, ^49.

ISSUES AND ARGUMENTS

I. THIS COURT LACKS JURISDICTION TO IMPOSE DAMAGES AGAINST THE

STATE OF ILLINOIS

While the eleventh amendment to the Constitution of the United States literally applies

only to claims against a state by citizens of other states, the principle embodied in the

eleventh amendment has long been held to bar suits against a state by its own citizens as

well. Hans v. Louisiana, 132 U.S. 1 (1890). States are immune from suit unless one of two

exceptions exist: the State waives eleventh amendment immunity by unequivocal language

or Congress abrogates a state's eleventh amendment immunity by unequivocal language

under the power of Congress to enforce the fourteenth amendment. Kroll v. Board of

Trustees of the University of Illinois, 944 F.2d 904, 907 (7th Cir. 1991). When eleventh

amendment immunity has not been abrogated or waived, a state cannot be sued in its own

name no matter what relief is sought. Kentucky v. Graham, 473 U.S. 159,167 n.14 (1985).

Although plaintiff does not cite 42 U.S.C. º1983 in his complaint, that section

creates the causes of action brought under the first amendment for speech and the

fourteenth amendment due process clause of the Constitution of the United States.

However, Congress has not abrogated eleventh immunity under 42 U.S.C. º1983. Kroll,

944 F.2d at 909. Further, the State has also not consented to plaintiff's suit. As such, the

claim brought by the plaintiff against the State of Illinois is barred by the eleventh

amendment.

2 Furthermore, insofar as plaintiff seeks damages, the State is not a "person" subject

to suit under 42 U.S.C. º1983. Will v. Michigan Department of State Police, 491 U.S. 58

(1989). As such, the complaint against the State of Illinois should be dismissed.

II. THE COMPLAINT FAILS TO STATE A CLAIM FOR RELIEF

Rule 12(b)(6) of the Federal Rules of Civil Procedure states that "a complaint should

not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff

can prove no set of facts in support of his claim which would entitled him to relief." Conley

v. Gibson, 355 U.S. 41,45-46 (1957). In determining whether dismissal is appropriate, the

court should accept all well-pleaded allegations in the complaint as true and draw all

reasonable inferences in favor of the plaintiff. Mallett v. Wisconsin Division of Vocational

Rehabilitation, 130 F.3d 1245, 1248 (7th Cir. 1997).

Pro se litigants are not held to the stringent standards that apply to formally trained

members of the legal profession. Hughes v. Rowe, 449 U.S. 5, 9-10 (1980)(per

cunam)(citing Haines v. Kerner.404 U.S. 519,520-21 (1972)). As such, prose complaints

should be liberally construed. Id. at 9-10 (c/Y/'ng Haines at 520-21). Further, Rule 8(a)(1)

of the Federal Rules of Civil Procedure do not require that a plaintiff set forth the statutory

basis for the subject matter jurisdiction of the court, as long as the complaint sets forth

sufficient facts to show that the district court has jurisdiction. Jensen v. State Board of Tax

Commissioners, 763 F.2d 272, 278 (7th Cir. 1985).

In the case at bar, plaintiff has made long, rambling complaints about his medical

providers and their billing practices. However, he has failed to make specific allegations

against the State of Illinois. Further, although the complaint is lengthy, the plaintiff has

failed to state any cause of action which would entitle him to relief, even with a liberal

construction of his allegations. For these reasons, the complaint against the State of

Illinois should be dismissed.

CONCLUSION

Plaintiff has sued the State of Illinois as a defendant in the case at bar. Although

he seeks damages from all of the defendants, he has failed to make any allegations

against the State of Illinois.

The eleventh amendment bars a plaintiff from recovering damages against the State

of Illinois. Further, plaintiff has failed to state a claim against the State of Illinois for which

relief can be granted. For these reasons, the State of Illinois should be dismissed from this

action.

WHEREFORE, for the foregoing reasons, defendant, State of Illinois, respectfully

requests that this honorable Court dismiss this case against it and enter judgment in favor

of the State of Illinois and against the plaintiff.

Respectfully submitted,

STATE OF ILLINOIS,

Defendant,

Lisa Madigan, Attorney General,

State of Illinois,

Attorney for Defendant,

By: s/Karen L. McNaught__________

Karen L. McNaught

Assistant Attorney General

Attorney for Defendant

Office of the Attorney General

500 South Second Street

Springfield, IL 62706

Telephone: (217)782-1841

Facsimile: (217)524-5091

kmcnaught(a)atg. state, il. us

two deputies deliver

Office of the Attorney

State of Illinois

Illinois Attorney General

Division of Investigations

Illinois Attorney General

Lisa Madigan

April 8,2005

Mr. James Osterbur

2191 County Road 2500E

St. Joseph, Illinois 61873

Mr. James Osterbur, this correspondence serves as official notice to you that you are not to be in

any office occupied by or affiliated with the Illinois Attorney General's Office. If you knowingly

enter or remain within or on any property owned by or occupied by the Illinois Attorney

General's Office, the Illinois Attorney General's Office will seek to have you arrested and

prosecuted for Criminal Trespass to State Supported Property (720 ILCS 5/21-5).

If you have any legitimate business with the Illinois Attorney General's Office you may do so

through the United States Postal Service. Let this serve as your final notice.

Sincerely,

^òJ4ù ^^

William Walsh

Chief of Investigations

Office of the Illinois Attorney General

Division of Investigations

100 W.Randolph St.

Chicago, Illinois 60601

(312)814-2584