Even if (as Rasky asserts for the first time in his responsive
memorandum) defendants' conspiracy was directed against him because of
his membership in the class of "slum landlords," Section 1985 is still
inapplicable. Nothing in the Complaint alleges facts showing the
conspiracy was so directed and the criteria defining such a "class" were
invidious. See Brainerd v. Potratz, 421 F. Supp. 836, 839 (N.D.Ill.
Section 1983 Claims
Rasky's Section 1983 claims also have serious deficiencies. Many of
Rasky's grievances resemble non-constitutional torts (such as defamation
and malicious prosecution), involving no deprivation of a right,
privilege or immunity secured by the Constitution and laws of the United
States — the only type of injury redressable under Section 1983.
See Brainerd, 421 F. Supp. at 840.
Apart from those matters, Rasky's Complaint charges various procedural
irregularities infecting the administrative proceedings. However, even if
such claimed improprieties offend the Due Process Clause, no Section 1983
damage relief can be obtained against any of the defendants.*fn4
Although that conclusion is beyond dispute, it requires extended
Rasky's Section 1983 claim against Department is fatally defective.
Substantial authority supports the proposition that as a state agency,
Department should not be considered a "person" within Section 1983's
coverage. But even if it were, the Eleventh Amendment insulates it from
Section 1983 damage liability.
Nearly a decade ago Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39
L.Ed.2d 662 (1974) held (1) the Eleventh Amendment forbids suits against
state officers for retrospective monetary relief and (2) Section 1983 was
not intended to abrogate the state's Eleventh Amendment immunity.*fn5
Then the per curiam decision in Alabama v. Pugh, 438 U.S. 781, 98 S.Ct.
3057, 56 L.Ed.2d 1114 (1978) dismissed a State and a State agency as
defendants in a Section 1983 suit seeking only injunctive relief. Pugh
thus extended the Eleventh Amendment bar to Section 1983 injunctive
actions against a state or its instrumentalities, implicitly ruling
Section 1983 did not revoke the immunity defense in that context either.
Having foreclosed Section 1983 plaintiffs from any possible relief
(monetary or injunctive) against a state agency, Edelman and Pugh
effectively appear to hold such an agency is not a "person" for Section
1983 purposes.*fn6 Accord, Kompara v. Board of Regents, 548 F. Supp. 537,
540-42 (M.D. Tenn. 1982); Chai v. Michigan Technological University,
498 F. Supp. 1137, 1160-62 (W.D.
Mich. 1980); Bailey v. Ohio State University,
487 F. Supp. 601, 603 (S.D.Ohio 1980). Nonetheless,
substantial case law reaches the contrary conclusion. Harris v. Arizona
Board of Regents, 528 F. Supp. 987, 991-92 (D.Ariz. 1981); Gay Student
Services v. Texas A & M University, 612 F.2d 160, 163-64 (5th Cir.),
cert. denied, 449 U.S. 1034, 101 S.Ct. 608, 66 L.Ed.2d 495 (1980);
Tayyari v. New Mexico State University, 495 F. Supp. 1365, 1370 (D.N.M.
1980)*fn7 of course all those cases, on both sides of the issue, involve
state universities — which (depending on the governmental
structure) may or may not stand in a different posture from a state
agency like Department.
Those cases and the questions they pose need not be reconciled here.
Whether or not a "person," Department is unquestionably invulnerable to
Section 1983 damage actions under the Eleventh Amendment's sovereign
immunity doctrine. That is the plain teaching of Edelman. Rasky's Section
1983 claim must be dismissed against Department.
2. Anderson, Augustine and Scheffres
Edelman equally supports dismissal of the Section 1983 damage claim
against Department's officials. Consequently the Court need not determine
whether such officials are also shielded from damage liability because,
in committing the charged acts, they were performing functions that
closely parallel those of judges and prosecutors (who are entitled to
absolute immunity). See Butz v. Economou, 438 U.S. 478, 508-17, 98 S.Ct.
2894, 2911-16, 57 L.Ed.2d 895 (1978); United States v. Irving, 684 F.2d 494
(7th Cir. 1982).
3. Chicago and Its Building Inspectors Rollins and Sterling
Monell (see n. 6) compels Chicago's dismissal. It limits Section 1983
governmental liability to instances where some official policy has caused
a government employee to violate another's constitutional rights. 436
U.S. at 692, 98 S.Ct. at 2036.
Rasky has not adequately alleged such a causal nexus. Complaint ¶ 3
contains general "under color" and "official policy or custom"
allegations as to all defendants, widely separated from the perjured
testimony allegations of Complaint ¶ 12. Though the pleading line is
not always a bright one, Rasky falls short of satisfying even the
expansive approach to Rule 8 adopted by this Court in such cases as
Thompson v. Village of Evergreen Park, 503 F. Supp. 251, 252 (N.D.Ill.
Nor can Section 1983 liability be assessed against Rollins and Sterling
themselves for their alleged acts of perjury. Like the majority of Courts
of Appeals that have considered the issue, our own Court of Appeals has
held in Briscoe v. LaHue, 663 F.2d 713, 717-21 (7th Cir. 1981) that
public officials are absolutely immune from suit under Section 1983 for
falsely testifying in state courts. While Briscoe is now before the
Supreme Court (oral argument was heard Nov. 9, 1982, 51 U.S.L.W. 3377),
the Court of Appeals' decision controls this Court's action at this
Finally Rasky's Complaint fails to state a Section 1983 claim against
State Representative Levin. Complaint ¶ 11 asserts two grounds for
1. Levin "participated in newspaper releases, radio
and TV broadcasts [concerning the revocation
proceedings against Rasky] for purposes of
2. Rasky's efforts to require Levin to disclose
certain information were rejected.
It is difficult at best to ascribe any wrongdoing on Levin's part to
the first allegation (even in conclusory terms). But even were the
allegation read to charge defamation, it would not ground Section 1983
liability. Paul v. Davis,