Illinois Court of Claims Exhaustion of Remedies Requirement
The leading case regarding the Court of Claims exhaustion of remedies requirement is Doe v. State (1991), 43 Ill. Ct. Cl. 172, which is dispositive of the case at bar.
In Doe, claimant, a patient at John J. Madden Health Center, brought suit against the State after she had been sexually assaulted by another Madden patient.
The claimant sued the State but did not file an action against her assailant.
Accordingly, respondent moved to dismiss for failure to exhaust remedies pursuant to section 25 of the Court of Claims Act and section 790.60 of the Court of Claims Regulations.
The Court, in Doe, followed the reasoning set forth in Boe v. State (1984), 37 Ill. Ct. Cl. 72, 75, where we held that claimants "must exhaust all possible causes of action before seeking final disposition of a case filed in the Court of Claims."
The language of section 25 of the Court of Claims Act and section 790.60 of the Court of Claims Regulations clearly makes the exhaustion of remedies mandatory rather than optional.
To quote our prior watershed exhaustion of remedies case (Lyons v. State (1981), 34 Ill. Ct. Cl. 268), the Court stated:
"The requirement that claimant exhaust all available remedies prior to seeking a determination in this Court is clear and definite in its terms. It is apparent to the Court that claimant had sufficient time to both become aware of his other remedies and to pursue them accordingly. the fact that claimant can no longer pursue those remedies cannot be a defense to the exhaustion requirement. If the Court were to waive the exhaustion of remedies requirement merely because claimant waited until it was too late to avail himself of the other remedies, the requirement would be transformed into an option, to be accepted or ignored according to the whim of all claimants. We believe that the language of Section 25 of the Court of Claims Act citation omitted and Rule 6 of the Rules of the Court of Claims quite clearly makes the exhaustion of remedies mandatory rather than optional."
These principles were most recently used in our dismissal of the case of an inmate who had allegedly been attacked by his cellmate.
The Court held that claimant failed to exhaust his remedies by not pursuing a civil action for damages against a known tortfeasor. (Lutz v. State (1989), 42 Ill. Ct. Cl. 124.)
The appropriate procedure would be to sue the known tortfeasor in state court, file against the State of Illinois in the Court of Claims, and have the Court of Claims case placed on general continuance.