HARVEY LEROY SOSSAMON, III, PETITIONER v. TEXAS et al.
on writ of certiorari to the united states court of appeals for the fifth circuit
Justice Sotomayor , with whom Justice Breyer joins, dissenting.
<tab> The Court holds that the term “appropriate relief” is too ambiguous to provide States with clear notice that they will be liable for monetary damages under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U. S. C. §2000cc et seq . I dis-agree. No one disputes that, in accepting federal funds, the States consent to suit for violations of RLUIPA’s substantive provisions; the only question is what relief is available to plaintiffs asserting injury from such violations. That monetary damages are “appropriate relief” is, in my view, self-evident. Under general remedies principles, the usual remedy for a violation of a legal right is damages. Consistent with these principles, our precedents make clear that the phrase “appropriate relief” includes monetary relief. By adopting a contrary reading of the term, the majority severely undermines the “broad protection of religious exercise” Congress intended the statute to provide. §2000cc–3(g). For these reasons, I respectfully dissent.
As the Court acknowledges, the proposition that “States may waive their sovereign immunity” is an “unremarkable” one. Seminole Tribe of Fla. v. Florida , 517 U. S. 44, 65 (1996) ; see also Alden v. Maine , 527 U. S. 706, 737 (1999) (“[W]e have not questioned the general proposition that a State may waive its sovereign immunity and consent to suit”); Atascadero State Hospital v. Scanlon , 473 U. S. 234, 238 (1985) (noting the “well-established” prin-ciple that “if a State waives its immunity and consents to suit in federal court, the Eleventh Amendment does not bar the action”); Petty v. Tennessee-Missouri Bridge Comm’n , 359 U. S. 275, 276 (1959) (noting that a State may waive sovereign immunity “at its pleasure”).
Neither the majority nor respondents (hereinafter Texas) dispute that, pursuant to its power under the Spending Clause, U. S. Const., Art. I, §8, cl. 1, Congress may secure a State’s consent to suit as a condition of the State’s receipt of federal funding. 1 See College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd. , 527 U. S. 666, 686 (1999) (“Congress may, in the exercise of its spending power, condition its grant of funds to the States upon their taking certain actions that Congress could not require them to take, and … acceptance of the funds entails an agreement to the actions”); Atascadero , 473 U. S., at 247 (suggesting that a federal statute can “condition participation in the programs funded under the [statute] on a State’s consent to waive its constitutional immunity”). As with all waivers of sovereign immunity, the question is whether the State has unequivocally consented to suit in federal court. See College Savings Bank , 527 U. S., at 680; Atascadero , 473 U. S., at 238, n. 1.
Thus, in order to attach a waiver of sovereign immunity to federal funds, Congress “must do so unambiguously,” so as to “enable the States to exercise their choice knowingly.” Pennhurst State School and Hospital v. Halderman , 451 U. S. 1, 17 (1981) . In other words, the State must have notice of the condition it is accepting. See Arlington Central School Dist. Bd. of Ed. v. Murphy , 548 U. S. 291, 298 (2006) (“[C]lear notice … is required under the Spending Clause”). The reason for requiring notice is simple: “States cannot knowingly accept conditions of which they are ‘unaware’ or which they are ‘unable to ascertain.’ ” Id. , at 296 (quoting Pennhurst , 451 U. S., at 17). In assessing whether a federal statute provides clear notice of the conditions attached, “we must view the [statute] from the perspective of a state official who is engaged in the process of deciding whether the State should accept [federal] funds and the obligations that go with those funds.” Arlington Central , 548 U. S., at 296.
There is also no dispute that RLUIPA clearly conditions a State’s receipt of federal funding on its consent to suit for violations of the statute’s substantive provisions. The statute states that “program[s] or activit[ies] that receiv[e] Federal financial assistance” may not impose a “substantial burden on the religious exercise of a person residing in or confined to an institution.” §2000cc–1. When such a burden has been imposed, the victim “may assert a violation of [RLUIPA] as a claim … in a judicial proceeding and obtain appropriate relief against a government,” §2000cc–2(a), which the statute defines, as relevant, as “a State, county, municipality, or other governmental entity created under the authority of a State,” §2000cc–5(4)(A)(i). Accordingly, it is evident that Texas had notice that, in accepting federal funds, it waived its sovereign immunity to suit by institutionalized persons upon whom it has imposed an unlawful substantial burden. See Madison v. Virginia , 474 F. 3d 118, 130 (CA4 2006) (“On its face, RLUIPA … creates a private cause of action against the State, and Virginia cannot be heard to claim that it was unaware of this condition” (citations omitted)); Benning v. Georgia , 391 F. 3d 1299, 1305 (CA11 2004) (“Congress unambiguously required states to waive their sovereign immunity from suits filed by prisoners to enforce RLUIPA”).
The Court holds that the phrase “appropriate relief” does not provide state officials clear notice that monetary relief will be available against the States, meaning that they could not have waived their immunity with respect to that particular type of liability. This holding is contrary to general remedies principles and our precedents.
RLUIPA straightforwardly provides a private right of action to “obtain appropriate relief against a government.” §2000cc–2(a). Under “our traditional approach to deciding what remedies are available for violation of a federal right,” damages are the default—and equitable relief the exception—for “it is axiomatic that a court should determine the adequacy of a remedy in law before resorting to equitable relief.” Franklin v. Gwinnett County Public Schools , 503 U. S. 60, 75–76 (1992) ; see also Weinberger v. Romero-Barcelo , 456 U. S. 305, 312 (1982) (“The Court has repeatedly held that the basis for injunctive relief in the federal courts has always been … the inadequacy of legal remedies”); Bivens v. Six Unknown Fed. Narcotics Agents , 403 U. S. 388, 395 (1971) (“Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty”); cf. Monsanto Co. v. Geertson Seed Farms , 561 U. S. ___, ___ (2010) (slip op., at 24) (“An injunction is a drastic and extraordinary remedy, which should not be granted as a matter of course”). It is unsurprising, therefore, that on more than one occasion Congress has felt it necessary to clarify in the text of a statute that it meant the terms “relief” and “appropriate relief” to exclude damages. See 5 U. S. C. §702 (providing that, under the Administrative Procedure Act, “relief other than money damages” is available against a federal agency to remedy a “legal wrong”); see also 42 U. S. C. §6395(e)(1) (providing a cause of action for “appropriate relief,” but specifying that “[n]othing in this subsection shall authorize any person to recover damages”); 15 U. S. C. §797(b)(5) (similar).
If, despite the clarity of this background principle, state officials reading RLUIPA were somehow still uncertain as to whether the phrase “appropriate relief” encompasses monetary damages, our precedents would relieve any doubt. In Franklin we made clear that, “absent clear direction to the contrary by Congress,” federal statutes providing a private right of action authorize all “appropriate relief,” including damages, against violators of its substantive terms. 503 U. S., at 70–71, 75–76. We reiterated this principle in Barnes v. Gorman , 536 U. S. 181, 185, 187 (2002) , affirming that “the scope of ‘appropriate relief’ ” includes compensatory damages. 2 The holdings in these cases are fully consistent with the general principle that monetary relief is available for violations of the substantive conditions Congress attaches, through Spending Clause legislation, to the acceptance of federal funding. See Davis v. Monroe County Bd. of Ed. , 526 U. S. 629, 640 (1999) (“[P]ursuant to Congress’ authority under the Spending Clause … private damages actions are available”); Gebser v. Lago Vista Independent School Dist. , 524 U. S. 274, 287 (1998) (noting that “[w]hen Congress attaches conditions to the award of federal funds under its spending power … private actions holding the recipient liable in monetary damages” are permissible). It would be an odd derogation of the normal rules of statutory construction for state officials reading RLUIPA to assume that Congress drafted the statute in ignorance of these unambiguous precedents. See Merck & Co. v. Reynolds , 559 U. S. ___, ___ (2010) (slip op., at 12) (“We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent”). 3
Accordingly, it is difficult to understand the basis for the Court’s position that the phrase “appropriate relief” in §2000cc–2(a) fails to provide state officials with clear notice that waiving sovereign immunity to monetary relief is a condition of accepting federal funds. In arguing that “a waiver of sovereign immunity to other types of relief does not waive immunity to damages,” ante , at 6 (emphasis added), the majority appears to accept that equitable relief is available to RLUIPA plaintiffs. See Madison , 474 F. 3d, at 131 (holding that a RLUIPA plaintiff’s “claims for equitable relief are not barred by the Eleventh Amendment ”); cf. 560 F. 3d 316, 331, 336 (CA5 2009) (reversing the District Court’s grant of summary judgment to Texas on one of petitioner’s RLUIPA claims for declaratory and injunctive relief). The explanation for the majority’s implicit acceptance of suits for injunctive and declaratory relief is obvious enough: It would be a particularly curious reading of the statute to conclude that Congress’ express provision of a private right of action to seek “appropriate relief” against “a State” nonetheless left plaintiffs suing for state violations of RLUIPA with no available relief.
It is not apparent, however, why the phrase “appropriate relief” is too ambiguous to secure a waiver of state sovereign immunity with respect to damages but is clear enough as to injunctive and other forms of equitable relief. The majority appears to believe that equitable relief is a “suitable” or “proper” remedy for a state violation of RLUIPA’s substantive provisions but monetary relief is not; therefore, a state official reading the “open-ended and ambiguous” phrase “appropriate relief” will be unaware that it includes damages but fully apprised that it makes equitable relief available. See ante , at 6–7. But sovereign immunity is not simply a defense against certain classes of remedies—it is a defense against being sued at all. See, e.g. , Federal Maritime Comm’n v. South Carolina Ports Authority , 535 U. S. 743, 766 (2002) . As a result, there is no inherent reason why the phrase “appropriate relief” would provide adequate notice as to equitable remedies but not as to monetary ones. In fact, as discussed earlier, in light of general remedies principles the presumption arguably should be the reverse. See supra , at 4–6.
The majority suggests that equitable relief is the sole “appropriate relief” for statutory violations “where the defendant is a sovereign.” Ante , at 6–7. There can be little doubt, however, that the “appropriateness” of relief to be afforded a civil plaintiff is generally determined by the nature of the injury to his legal rights. See Franklin , 503 U. S., at 76 (concluding that monetary damages were “appropriate” because equitable relief offered no redress for the injury suffered); see also Milliken v. Bradley , 433 U. S. 267, 280 (1977) (“[T]he nature of the … remedy is to be determined by the nature and scope of the … violation”); Bell v. Hood , 327 U. S. 678, 684 (1946) (“[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief”). In support of its proposition the majority cites only to a case in which we expressly rejected the argument that state sovereign immunity operates differently according to what type of relief is sought. See Federal Maritime , 535 U. S., at 765 (“[S]overeign immunity applies regardless of whether a private plaintiff’s suit is for monetary damages or some other type of relief”); cf. id. , at 769 (“[T]he primary function of sovereign immunity is not to protect state treasuries, but to afford the States the dignity and respect due sovereign entities” (citation omitted)). Nor is the basis for the majority’s view apparent from the other cases that it cites. 4
The majority’s additional arguments in support of its holding also fail to persuade. The majority contends that the use of a “context-dependent” word like “appropriate” necessarily renders the provision ambiguous. Ante , at 7. But the fact that the precise relief afforded by a court may vary depending on the particular injury to be addressed in a given case does not render §2000cc–2(a) ambiguous; it simply means that Congress meant for that provision to be comprehensive. See Pennsylvania Dept. of Corrections v. Yeskey , 524 U. S. 206, 212 (1998) (“[T]he fact that a statute can be applied in situations not expressly anti-cipated by Congress does not demonstrate ambiguity. It demonstrates breadth” (internal quotation marks omitted)); cf. West v. Gibson , 527 U. S. 212, 217–218 (1999) (holding that the phrase “appropriate remedies” in 42 U. S. C. §2000e–16(b) includes remedies not expressly enumerated).
Next, the majority repeats Texas’s dictionary-based contention that in using the word “relief” Congress meant to “connot[e] equitable relief.” Ante , at 8. This proposition suffers from three flaws. First, it is not established by the dictionary to which the majority cites. See Black’s Law Dictionary 1293 (7th ed. 1999) (“relief: … Also termed remedy ”); id. , at 1296 (“remedy: … The means of enforcing a right or preventing or redressing a wrong; legal or equitable relief” (emphasis added)). Second, it is inconsistent with our precedent. See Barnes , 536 U. S., at 185–187 (noting that “appropriate relief” includes monetary and injunctive relief). Third, it is undermined by the fact that, on numerous occasions, Congress has deemed it necessary to specify that “relief” includes injunctive and other equitable relief. See 16 U. S. C. §973i(e) (authorizing the Attorney General to “commence a civil action for appropriate relief, including permanent or tempo- rary injunction”); see also 2 U. S. C. §437g(a)(6)(A); 8 U. S. C. §1324a(f)(2); 12 U. S. C. §1715z–4a(b); 15 U. S. C. §6309(a). If the term “relief” already connotes equitable relief—and only equitable relief—additional explication is redundant.
Finally, the majority asserts that because the parties to this case advance opposing “plausible arguments” regarding the correct interpretation of RLUIPA’s text, we must conclude that the statute is ambiguous. Ante , at 8–9. This view of how we adjudicate cases is incorrect as a descriptive matter. See, e.g. , Carcieri v. Salazar , 555 U. S. 379, 390 (2009) (reviewing the parties’ conflicting textual interpretations of a statute but concluding that it was unambiguous nonetheless). Moreover, I cannot agree with the majority that our capacity to interpret authoritatively the text of a federal statute is held hostage to the litigants’ strategic arguments. If this were true, there would be few cases in which we would be able to decide that a statute was unambiguous.
In sum, the majority’s conclusion that States accepting federal funds have not consented to suit for monetary relief cannot be reconciled with the fact that the availability of such relief is evident in light of RLUIPA’s plain terms and the principles animating our relevant precedents. In so holding, the majority discovers ambiguity where none is to be found.
There is another reason to question the soundness of today’s decision. The Court’s reading of §2000cc–2(a) severely undermines Congress’ unmistakably stated intent in passing the statute: to afford “broad protection of religious exercise, to the maximum extent permitted by the terms of [the statute] and the Constitution.” §2000cc–3(g). I find it improbable that, in light of this express statutory purpose and the history of “long-running congressional efforts to accord religious exercise heightened protection from government-imposed burdens,” Cutter v. Wilkinson , 544 U. S. 709, 714 (2005) , state officials would read RLUIPA’s relief provision in the same limited manner the majority does. 5
As the majority acknowledges, RLUIPA was Congress’ second attempt to guarantee by statute the “broad protection” of religious exercise that we found to be unwarranted as a constitutional matter in Employment Div., Dept. of Human Resources of Ore. v. Smith , 494 U. S. 872 (1990) . As we have previously recognized, in passing RLUIPA Congress was clearly concerned that state institutions regularly imposed “frivolous or arbitrary barriers imped[ing] institutionalized persons’ religious exercise.” Cutter , 544 U. S., at 716 (internal quotation marks omitted); see also 146 Cong. Rec. 16698, 16699 (2000) (joint statement of Sen. Hatch and Sen. Kennedy on RLUIPA) (“Whether from indifference, ignorance, bigotry, or lack of resources, some institutions restrict religious liberty in egregious and unnecessary ways”); ibid. (“Institutional residents’ rights to practice their faith is at the mercy of those running the institution …”). It is difficult to believe that Congress would have devoted such care and effort to establishing significant statutory protections for religious exercise and specifically extended those protections to persons in state institutions, yet withheld from plaintiffs a crucial tool for securing the rights the statute guarantees.
By depriving prisoners of a damages remedy for violations of their statutory rights, the majority ensures that plaintiffs suing state defendants under RLUIPA will be forced to seek enforcement of those rights with one hand tied behind their backs. Most obviously, the majority’s categorical denial of monetary relief means that a plaintiff who prevails on the merits of his claim that a State has substantially burdened his religious exercise will often be denied redress for the injury he has suffered, because in many instances “prospective relief accords … no remedy at all.” Franklin , 503 U. S., at 76; see H. R. Rep. No. 102–40, pt. 2, p. 25 (1991) (Report of Committee on the Judiciary on the Civil Rights Act of 1991) (“The limitation of relief under Title VII to equitable remedies often means that victims … may not recover for the very real effects of the [statutory violation]”). Injunctive relief from a federal court may address a violation going forward, but this fact will be of cold comfort to the victims of serious, non-recurring violations for which equitable relief may be inappropriate.
In addition, the unavailability of monetary relief will effectively shield unlawful policies and practices from judicial review in many cases. Under state law, discretion to transfer prisoners “in a wide variety of circumstances is vested in prison officials.” Meachum v. Fano , 427 U. S. 215, 227 (1976) . A number of RLUIPA suits seeking injunctive relief have been dismissed as moot because the plaintiff was transferred from the institution where the alleged violation took place prior to adjudication on the merits. See, e.g. , Colvin v. Caruso , 605 F. 3d 282, 287, 289 (CA6 2010); Simmons v. Herrera , No. C 09–0318 JSW (PR), 2010 WL 1233815, *3 (ND Cal., Mar. 26, 2010); see generally Brief for American Civil Liberties Union et al. as Amici Curiae 8–11. Absent a damages remedy, longstanding RLUIPA challenges may well be dismissed for lack of a case or controversy conferring Article III jurisdiction on the federal court. Cf. Moussazadeh v. Texas Dept. of Crim. Justice , Civ. Action No. G–07–574, 2009 WL 819497, *9 (SD Tex., Mar. 26, 2009) (dismissing as moot plaintiff’s RLUIPA claim because he had been transferred to a facility that provided kosher food), remanded, 364 Fed. Appx. 110 (CA5 2010); Opening Brief for Plaintiff-Appellant in Moussazadeh v. Texas Dept. of Crim. Justice , No. 09–40400 (CA5), p. 11 (noting that transfer to a special facility took place 19 months after the plaintiff filed suit and just before discovery—which had been stayed 12 months for negotiation—was scheduled to recommence). Or, as happened in this case, officials may change the policy while litigation is pending. The fact of “voluntary cessation” may allow some of these claims to go forward, but many will nonetheless be dismissed as moot (as happened in this case). 6
Of course, under the rule the majority announces, Congress can revise RLUIPA to provide specifically for monetary relief against the States, perhaps by inserting the phrase “including monetary relief” into the text of §2000cc–2(a). But we have never demanded that a waiver be presented in a particular formulation to be effective; we only require that it be clear. See, e.g. , Edelman v. Jordan , 415 U. S. 651, 673 (1974) (holding that waiver may be found in “express language” or by “overwhelming implications from the text” (internal quotation marks omitted)). In holding to the contrary, the majority erects a formalistic barrier to the vindication of statutory rights deliberately provided for by Congress.
More problematically, because there is no apparent reason why the term “appropriate relief” is sufficiently clear as to equitable relief but not as to monetary relief, we are left with the very real possibility that, in order to secure a waiver of immunity under the majority’s new rule, Congress must now itemize in the statutory text every type of relief meant to be available against sovereign defendants. I, for one, do not relish the prospect of federal courts being presented with endless state challenges to all manner of federal statutes, on the ground that Congress failed to predict that a laundry list of terms must be included to waive sovereign immunity to all forms of relief. I would avoid the problems the majority’s decision invites and hold instead that, as is the case here, when a general statutory term like “appropriate relief” is used, clear no-tice has been provided and a State’s acceptance of federal funds constitutes a waiver of sovereign immunity to all relief, equitable and monetary.
As explained above, nothing in our precedent demands the result the majority reaches today. The conclusion that RLUIPA fails to provide States with sufficient notice that they are liable for monetary relief cannot be squared with the straightforward terms of the statute and the general principles evident in our prior cases. For these reasons, and because the majority’s decision significantly undermines Congress’ ability to provide needed redress for violations of individuals’ rights under federal law, I respectfully dissent.
1 Though the Court reserves the general question whether RLUIPA is a valid exercise of Congress’ power under the Spending Clause, see ante, at 2, n. 1, there is apparently no disagreement among the Federal Courts of Appeals, see 560 F. 3d 316, 328, n. 34 (CA5 2009) (“Every circuit to consider whether RLUIPA is Spending Clause legislation has concluded that it is constitutional under at least that power”).
2 The majority suggests that our use of the phrase “appropriate relief” in Franklin and Barnes did not “put the States on notice that the same phrase in RLUIPA subjected them to suits for monetary relief,” because “[t]hose cases did not involve sovereign defendants.” Ante, at 10, n. 6. The majority misperceives the point. Franklin and Barnes simply confirmed what otherwise would have been already apparent to any informed reader of RLUIPA—when it comes to remedying injuries to legal rights, monetary damages are “appropriate relief.” Moreover, as noted in the text, see supra, at 4–5, the Administrative Procedure Act expressly excludes “money damages” from the “relief” available against the United States, suggesting that Congress understands the term normally to encompass monetary relief even when the defendant enjoys sovereign immunity. See 5 U. S. C. §702; Bowen v. Massachusetts, 487 U. S. 879, 891–892 (1988) (noting that §702 waives the United States’ sovereign immunity to suit).
3 Curiously, the majority appears to believe that it would be appro-priate for state officials to read the statutory phrase “appropriate relief” without reference to general remedies principles. See ante, at 12, n. 8. It is well-established, however, that “Congress is understood to legislate against a background of common-law … principles,” Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U. S. 104, 108 (1991) , and there can be no doubt that general legal principles necessarily inform judicial determinations as to what remedies are available to civil plaintiffs, see, e.g., Atlantic Sounding Co. v. Townsend, 557 U. S. ___, ___ (2009) (slip op., at 15) (concluding that, in light of “general principles of maritime tort law” punitive damages were a remedy available to the plaintiff (internal quotation marks omitted)). Why Texas’s sovereign immunity defense renders this approach improper is a mystery the majority opinion leaves unsolved.
4 In Lane v. Peńa, 518 U. S. 187 (1996) , United States v. Nordic Village, Inc., 503 U. S. 30 (1992) , and Hoffman v. Connecticut Dept. of Income Maintenance, 492 U. S. 96 (1989) , we simply reaffirmed the principle that a sovereign’s liability for damages must be unambiguously expressed in the statute purporting to waive immunity; as demonstrated above, RLUIPA satisfies this requirement. The majority tellingly relies on the dissent’s assertion in West v. Gibson, 527 U. S. 212 (1999) , that the phrase “appropriate remedies” was too ambiguous to waive sovereign immunity to monetary relief. See id., at 226 (opinion of Kennedy, J.). Accordingly, the cases the majority cites do not mandate the conclusion it draws today.
5 I agree with the majority’s conclusion that, because Section 3 of RLUIPA, addressing the rights of institutionalized persons, is not a “provisio[n] of [a] … Federal statute prohibiting discrimination” within the meaning of the Rehabilitation Act Amendments of 1986, 42 U. S. C. §2000d–7(a)(1), the latter statute’s waiver provision does not put the States on notice that they can be sued for damages under RLUIPA. See ante, at 12–14. It bears noting, however, that Section 2 of RLUIPA explicitly prohibits discrimination in land use regulation. See §2000cc(b)(2) (“No government shall impose or implement a land use regulation that discriminates … on the basis of religion or religious denomination”). As a result, the majority’s decision in this case means that some RLUIPA plaintiffs will be able to seek monetary damages against a State and others will not, even though RLUIPA’s provision of “appropriate relief” applies equally to suits for violations of the terms of both Section 2 and Section 3.
6 See Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U. S. 701, 719 (2007) (“Voluntary cessation does not moot a case or controversy unless subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur” (internal quotation marks and alterations omitted)). The Fifth Circuit declined to apply the “voluntary cessation” doctrine in this case and instead granted Texas’s motion that the court dismiss as moot petitioner’s claim for injunctive relief with respect to the prison’s cell-restriction policy. Because the prison director averred that the policy was no longer in force, and “absent evidence that the voluntary ces-sation [wa]s a sham,” the court held that the “good faith nature” of Texas’s change in policy rendered moot petitioner’s claim for injunctive relief. See 560 F. 3d, at 324–326; see also Nelson v. Miller, 570 F. 3d 868, 882–883 (CA7 2009) (affirming the District Court’s dismissal as moot of a RLUIPA claim because there was no evidence that the prison intended to revoke the plaintiff’s religious diet); El v. Evans, 694 F. Supp. 2d 1009, 1012–1013 (SD Ill. 2010) (similar).