APPEAL from the Circuit Court of Du Page County; the Hon. JOHN
S. TESCHNER, Judge, presiding.
MR. JUSTICE LINDBERG DELIVERED THE OPINION OF THIS COURT:
Defendant-appellant, Leona Daskalakis, appeals from the dismissal by the court below of her counterclaims against plaintiff-appellee, Executive Commercial Services, Ltd., and of her third-party complaint against plaintiff's attorneys. Both the counterclaims and the third-party complaint allege violations of her civil rights.
1 Leona Daskalakis is guarantor of equipment leases from Executive Commercial Services, Ltd., to Daskalakis Printing and Publishing Co. On August 11, 1977, plaintiff filed a complaint in the Circuit Court of Du Page County alleging that Leona Daskalakis and co-defendants, including her husband and other relatives, had defaulted on leases, had removed the printing equipment subject to plaintiff's secured leases from the State, and that one defendant (misidentified as Angeliki Daskalakis and not Leona Daskalakis) remained in the State and that this defendant planned to sell her home and leave the State. The relief requested included a judgment for the value of the leases, an award of attorney's fees, and a writ ne exeat (Ill. Rev. Stat. 1977, ch. 97, pars. 1-13) *fn1 against the defendant, and an injunction preventing the defendant from selling her home.
After an ex parte hearing, Judge Teschner issued the writ, set bond at $10,000, and also issued an injunction restraining the sale of the real estate. On August 12, 1977, Leona Daskalakis was taken into custody and later brought before the judge on the "return of the writ." After a hearing at which the defendant was represented by counsel, a motion to quash the writ was denied and bond was continued at $10,000. Defendant was ordered to contact the plaintiff daily under the threat of arrest and was asked to call her husband in Greece to see if he would send the money owed to plaintiff. On August 31, 1977, Judge Unverzagt vacated the writ apparently on the authority of United States v. Shaheen (7th Cir. 1971), 445 F.2d 6, 11, which cautioned that the writ ne exeat "should not be employed for any purpose akin to imprisonment for a debt."
On September 7, 1977, defendant filed her answer accompanied by a counterclaim alleging violation of her civil rights as protected by 42 U.S.C. § 1983 (1976). This counterclaim charged that the complaint contained several knowingly false assertions including that the defendant was a lessor, and not merely a guarantor of the leases; that payments were in default when they were not; that the defendant personally participated in the removal of the equipment; and that the defendant was about to remove some of plaintiff's property from the State.
On September 13, 1977, Judge Unverzagt dismissed the complaint, vacated the injunction, and transferred the matter to Judge Teschner for proceedings on the counterclaim. On September 23, 1977, Judge Teschner ruled on a discovery motion made by the defendant. On November 1, 1977, the judge denied the defendant leave to file amended counterclaims due to a lack of notice. On November 3, 1977, defendant filed for a change of venue based on a general allegation that Judge Teschner was prejudiced against her. This motion for a change of venue was denied. On this date the judge also allowed the defendant to amend her counterclaims to include allegations that the plaintiff wrongfully refused to agree to vacate his injunction and to add a third-party claim against plaintiff's attorneys. Finally, on this date, the judge reinstated plaintiff's complaint.
On January 10, 1978, plaintiff moved to dismiss the counterclaims and the third-party claims pursuant to section 45 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 45). After briefing and argument, this motion was allowed on April 24, 1978. On May 12, 1978, defendant moved to file additional counterclaims for common law torts as opposed to claims under section 1983. On May 15, 1978, a rehearing on the dismissal of the counterclaims was denied, as was leave to file the additional counterclaims. The judge further found that there was no just reason to deny enforcement or appeal of his ruling. It is from this order and from the denial of the change of venue that defendant brings this appeal, under Supreme Court Rule 304 (Ill. Rev. Stat. 1977, ch. 110A, par. 304).
Defendant raises three assertions on appeal: that her counterclaims were improperly dismissed under section 45 of the Civil Practice Act, that the trial court abused its discretion in denying her motion under section 46 of the Civil Practice Act to amend her counterclaim, and that her motion for a change of venue was improperly denied.
2 Whether or not the complained of conduct, if proved, is sufficient to state a cause of action under 42 U.S.C. § 1983 (1976) (deprivation of civil rights under color of State law) is a complex question. Defendant in support of her counterclaim relies on the line of cases represented by Hall v. Garson (5th Cir. 1970), 430 F.2d 430, which hold that a State statute authorizing a landlord to enforce a lien for unpaid rent through self-help make a landlord's action under the statute a deprivation of civil rights under color of State law. However, as the court in Hansen v. Ahlgrimm (7th Cir. 1975), 520 F.2d 768, 771, points out, at most such cases "stand for the limited proposition that actions of a private individual, pursuant to express state authorization, which possess the characteristics of a traditional state function (such as forced entry into a private residence to execute a lien), may be viewed as state action."
It appears that the most widely followed rule is at the mere fact that a private party used a State court to deprive another of his civil rights does not supply the element of State action required by section 1983. (Phillips v. International Association of Bridge, Structural & Ornamental Iron Workers (9th Cir. 1977), 556 F.2d 939, 940; Hill v. McClellan (5th Cir. 1974), 490 F.2d 859, 860; Skolnick v. Martin (7th Cir. 1963), 317 F.2d 855, 857, cert. denied (1963), 375 U.S. 908, 11 L.Ed.2d 146, 84 S.Ct. 199.) Thus, in Luker v. Nelson (N.D. Ill. 1972), 341 F. Supp. 111, 121, the court facing a situation similar to the case at bar held that in a section 1983 suit against a private party who may have procured a false arrest, the victim must prove that the private party conspired with the police to achieve a constitutional deprivation. There is no such conspiracy allegation in the case at bar.
In support of her position, defendant relies chiefly on Adickes v. S.H. Kress & Co. (1970), 398 U.S. 144, 26 L.Ed.2d 142, 90 S.Ct. 1598. In particular, defendant cites Justice Brennan's view that a private person acts under color of State law when he "in some way acts consciously pursuant to some law that gives him aid, comfort, or incentive, * * *" (398 U.S. 144, 212, 26 L.Ed.2d 142, 185, 90 S.Ct. 1598). This citation, however, is from Brennan's dissent and is apparently not shared by a majority of the court. The Adickes case concerned the refusal of a Mississippi restaurant to serve a white "Freedom School" teacher who was accompanied by black students. The teacher was subsequently arrested for vagrancy. The complaint contained an allegation of conspiracy between the State and the police to violate the teacher's civil rights. The complaint, however, failed to survive a motion for summary judgment as the trial court found a failure to allege any facts from which a conspiracy might be inferred. The Supreme Court reversed, holding that the conspiracy count was improperly dismissed because of the possibility of an understanding between the restaurant employees and the police. Thus the majority holding in Adickes does not waive the requirement of proving a conspiracy between a private party and a State official. And thus the complaint at bar, which contained no conspiracy allegation, failed to state a cause of action under 42 U.S.C. § 1983.
In her petition for rehearing, defendant cites the following language from the recent case of Flagg Brothers, Inc. v. Brooks (1978), 436 U.S. 149, 56 L.Ed.2d 185, 98 S.Ct. 1729, to support her proposition that a majority of the Supreme Court has now adopted Justice Brennan's position in Adickes:
"`[W]hatever else may also be necessary a show that a person has acted "under color of [a] statute" for purposes of § 1983, * * * we think it essential that he act with the knowledge of and pursuant to that statute.'" (436 U.S. 149, 156, 56 L.Ed.2d 185, 193, 98 S.Ct. 1729, 1733.) (Emphasis ours.)
In the present case it is clear that the plaintiffs were acting with knowledge of and pursuant to the ne exeat statute. However, as the underlined portion of the above quotation clearly indicates, this is only one of a number of essential elements for a cause of action under section 1983. The Flagg Brothers decision is in no way an aid to defendant's state action argument. In Flagg Brothers the Supreme Court found that the provision of the Uniform Commercial Code allowing enforcement of a warehouseman's lien did not bring actions under this statute within the protections of section 1983. Indeed, as the dissent ...