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ACOSTA v. SWANK
March 30, 1971
IGNACIO ACOSTA, VIRGINIA BOWERS, BERNICE ROBINSON AND DOVIE THURMAN, INDIVIDUALLY AND ON BEHALF OF ALL OTHER PERSONS SIMILARLY SITUATED, PLAINTIFFS,
HAROLD O. SWANK, DIRECTOR, ILLINOIS DEPARTMENT OF PUBLIC AID, DAVID DANIEL, DIRECTOR, COOK COUNTY DEPARTMENT OF PUBLIC AID, DEFENDANTS.
The opinion of the court was delivered by: Perry, District Judge.
MEMORANDUM OPINION AND ORDER
This case is before this single-judge court pursuant to an
order, 318 F. Supp. 1348, entered on October 22, 1970 by a
three-judge court constituted by Kiley, Circuit Judge, and Perry
and Napoli, District Judges. In said order the three-judge court
withdrew its opinion, 312 F. Supp. 765, heretofore entered on May
11, 1970 and found the three-judge court bereft of jurisdiction
under 28 U.S.C. § 2281, in the absence of a sufficient
constitutional question and, accordingly, dissolved the
three-judge court. The three-judge panel remanded the case to
single judge "for an early determination of the questions whether
the district court has jurisdiction over plaintiffs' claim for
`retroactive benefits' because of the deductions made from their
allowances, and if so, whether and to what extent plaintiffs are
entitled to the `retroactive benefits' they seek, under
42 U.S.C. § 1983."
Jurisdiction being a threshold question and in response to the
mandate of the three-judge court, this court will consider the
issue of jurisdiction first.
Plaintiffs' complaint asserts jurisdiction solely under
28 U.S.C. § 1343(3) and (4) and alleges that they have an action by
virtue of 42 U.S.C. § 1983. These statutes of the United States
read as follows:
42 U.S.C. § 1983. Civil Action for Deprivation of
"Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State
or Territory, subjects, or causes to be subjected,
any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party
injured in an action at law, suit in equity, or other
proper proceeding for redress."
28 U.S.C. § 1343. Civil Rights and Elective
"The district courts shall have original
jurisdiction of any civil action authorized by law to
be commenced by any person:
(1) To recover damages for injury to his person or
property, or because of the deprivation of any right
or privilege of a citizen of the United States, by
any act done in furtherance of any conspiracy
mentioned in section 1985 of Title 42;
(2) To recover damages from any person who fails to
prevent or to aid in preventing any wrongs mentioned
in section 1985 of Title 42 which he had knowledge
were about to occur and power to prevent;
(3) To redress the deprivation, under color of any
State law, statute, ordinance, regulation, custom or
usage, of any right, privilege or immunity secured by
the Constitution of the United States or by any Act
of Congress providing for equal rights of citizens or
of all persons within the jurisdiction of the United
(4) To recover damages or to secure equitable or
other relief under any Act of Congress providing for
the protection of civil rights, including the right
to vote. June 25, 1948, c. 646, 62 Stat. 932; Sept.
3, 1954, c. 1263, § 42, 68 Stat. 1241; ...
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