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United States District Court, Northern District of Illinois, E.D

March 8, 1983


The opinion of the court was delivered by: Shadur, District Judge.


Three minor children, Christapher, Deanna and Harold Martin ("Christapher," "Deanna" and "Harold"), initially brought this action*fn1 in the Circuit Court of Kendall County, Illinois, alleging claims under 42 U.S.C. § 1983 ("Section 1983") and Illinois common law against Kendall County ("County"), County Sheriff Victor Frantz ("Frantz") and Deputy Sheriffs J. Rosetl ("Rosetl") and Terry Schiltz ("Schiltz"). Defendants removed to this Court.*fn2

Schiltz has now moved to dismiss the Section 1983 claims against him. For the reasons stated in this memorandum opinion and order Schiltz's motion is granted. This Court also exercises its discretion to remand to the state court the state law claims against County, Frantz and Schiltz.


On November 2, 1980 Rosetl*fn4 falsely accused Christapher and Harold of illegally entering a neighbor's trailer with the intent to commit a theft. Rosetl took the two from their home to a County Sheriff's Department substation, where they were detained for 21/2 hours and released. No criminal charges or juvenile proceedings were thereafter instituted against Christapher in connection with Rosetl's accusations.

On March 3, 1981 Schiltz maliciously and without probable cause charged Deanna and Harold with being delinquent minors in petitions for adjudication of wardship under the Juvenile Court Act, Ill.Rev.Stat. ch. 37, § 704-1 ("Section 704-1"). Schiltz's petitions cited Deanna and Harold for committing the November 2, 1980 burglary on the neighbor's trailer. On March 20, 1981 the Juvenile Court dismissed Schiltz's petitions.

Proceedings in This Case

Plaintiffs' original Complaint comprised seven counts:

    1. In Count I Christapher charged County, Frantz and Rosetl
  with common law false imprisonment.

    2. In Count II Christapher asserted the same false
  imprisonment as a Section 1983 violation.

    3. In Count III Deanna charged County, Frantz and Schiltz
  with common law malicious prosecution.

    4. In Count IV Deanna charged the same malicious prosecution
  as a Section 1983 violation.

    5. In Count V Harold charged County, Frantz and Rosetl with
  common law false imprisonment.

    6. In Count VI Harold charged County, Frantz and Schiltz with
  common law malicious prosecution.

    7. In Count VII Harold asserted all four defendants had
  violated Section 1983 by the same false imprisonment and
  malicious prosecution.*fn5

Plaintiffs' Ans.Mem. [3] and [8] concedes County and Frantz should be dismissed as defendants in Counts II, IV and VII.*fn6 Those Counts apparently assert liability on a respondeat superior theory — which cannot sustain a Section 1983 action against a local governmental body or supervisory official.*fn7

For their part defendants have recast their motion to dismiss so it is now directed only at the Section 1983 claims against Schiltz. Defendants originally moved to dismiss the entire Complaint under Rule 12(b)(6). Their Mem. 2-6, however, argued (1) for dismissal only of the Section 1983 claims against all defendants and (2) for remand of the state law claims. Then defendants' R.Mem. 1-2 and 4 withdrew their motion to dismiss as it relates to Rosetl.

At this point Section 1983 claims are still asserted against Rosetl (Count II), Schiltz (Count IV) and Rosetl and Schiltz (Count VII). Counts I and V state Illinois claims against County, Frantz and Rosetl. Counts III and VI state Illinois claims against County, Frantz and Schiltz. Defendants' motion to dismiss now addresses only Schiltz's inclusion in Counts IV and VII.

Motion To Dismiss

Our Court of Appeals has recently noted (Crowder, 687 F.2d at 1002):

  To recover damages under 42 U.S.C. § 1983 a plaintiff must
  prove that the defendants acted under color of state law, that
  their actions resulted in a deprivation of the plaintiff's
  constitutional rights, and that the action of the defendants
  proximately caused the constitutional violation.

Allegations of a Section 1983 Complaint must provide facts that track those three elements of a plaintiff's ultimate case.

Defendants place their main reliance on their claim the allegations show Schiltz did not act "under color of" state law when he filed the juvenile petition. Mem. 3-4; R.Mem. 2-3.*fn8 On another issue, defendants' Mem. 3 originally raised, but R.Mem. 2-3 then abandoned, their argument Counts IV and VII charged Schiltz on a respondeat superior theory rather than on the basis of his own acts. See Crowder, 687 F.2d at 1005.

Those matters are really sideshows for the main event. Defendants have only barely touched (Mem. 3, 4; R.Mem. 4) on the dispositive issue posed by Counts IV and VII: Those counts do not properly allege a deprivation of plaintiffs' constitutional rights. Thus those counts fail to meet the pleading requirement implicit in the second element identified in Crowder.

Counts IV and VII purport to charge Schiltz under Section 1983 for the very same conduct that underlies the state malicious prosecution claims against him in Counts III and VI. Count IV ¶ 16 and Count VII ¶ 21 assert deprivations of four of Deanna's and Harold's constitutional rights:

    1. their First Amendment*fn9 rights to free speech and

    2. their Fourth Amendment right to be free from unlawful

    3. their Sixth Amendment right to be informed of the nature
  and cause of accusations against them; and

    4. their Fourteenth Amendment right not to be deprived of
  their liberty without due process of law.

None of those conclusory statements of constitutional deprivations will bear scrutiny in terms of the facts alleged.

No facts alleged in the Complaint even suggest any deprivation of Deanna's and Harold's First Amendment rights. As for the Sixth Amendment, the Complaint's allegations negate any inference Deanna and Harold were not informed of the accusations Schiltz made against them in the juvenile petitions: Those petitions specifically contained his charges. Count IV ¶ 6; Count VII ¶ 11. Finally, the conclusory allegations as to Fourth Amendment arrest and Fourteenth Amendment liberty infringements are in conflict with the Complaint's factual allegations that (1) the juvenile proceedings involved process by summons (Count IV ¶ 7; Count VII ¶ 12) and (2) terminated without any deprivation of Deanna's and Harold's liberty (Count IV ¶¶ 9-12; Count VII ¶¶ 14-17). No arrest is alleged in connection with the juvenile proceeding. And plaintiffs can hardly contend their liberty was deprived merely by reason of their having to answer the unsuccessful petition filed by Schiltz. See Goldstein v. Spears, 536 F. Supp. 606, 608-09 (N.D.Ill. 1982).

Deanna and Harold thus may have a perfectly sound claim against Schiltz under state law, especially given their allegations of malice and their contention the juvenile proceeding was initiated without probable cause. But a Section 1983 action requires more than a conclusory, internally refuted allegation of the deprivation of a constitutional right.*fn10 Count IV is therefore dismissed, and Schiltz is dismissed as a defendant to Count VII.

Remand Considerations*fn11

As it now stands the Complaint asserts Section 1983 claims only against Rosetl (Counts II and VII) and state law claims against County,*fn12 Frantz, Rosetl and Schiltz (Counts I, III, V and VI). Had the Complaint been filed in this Court in its present form, this Court would have had to dismiss the state law claims against the three nonfederal defendants (County, Frantz and Schiltz). Owen Equipment Co. v. Kroger, 437 U.S. 365, 372-73 & n. 12, 98 S.Ct. 2396, 2401-02 & n. 12, 57 L.Ed.2d 274 (1978) has said Section 1983 will not support jurisdiction over nondiverse pendent parties, and our Court of Appeals has all but closed the door on pendent party jurisdiction as a whole. See Johnson v. Miller, 680 F.2d 39, 41 (7th Cir. 1982); Hixon v. Sherwin-Williams Co., 671 F.2d 1005, 1007-09 (7th Cir. 1982).

This action, though, comes to this Court via removal and not by plaintiffs' choice. That poses the question of plaintiffs' state law claims in a remand rather than a dismissal context. That question has three dimensions: constitutional, statutory and discretionary.

Owen Equipment, 437 U.S. at 371 & n. 10, 98 S.Ct. at 2401 & n. 10 suggests this Court has the constitutional power to adjudicate nonfederal claims along with federal claims whenever they derive "from a common nucleus of operative fact," quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218 (1966). That suggestion accords with the fact an action (such as the present one) asserting federal and nonfederal claims arising from common facts constitutes one constitutional "Case," to which the judicial power extends. Id. U.S. Const. Art. III, § 2.

But Owen Equipment also teaches statutory law may limit this Court's constitutional jurisdiction. Owen Equipment, 437 U.S. at 372 & n. 12, 98 S.Ct. at 2402 & n. 12, thus reaffirmed the holding of Aldinger v. Howard, 427 U.S. 1, 96 S.Ct. 2413, 49 L.Ed.2d 276 (1976) that Section 1983 does not permit jurisdiction over a state law claim against a "pendent party" over whom there is no independent basis for federal jurisdiction. Owen Equipment in sum teaches (437 U.S. at 373, 98 S.Ct. at 2402, quoting Aldinger):

  Beyond [the] constitutional minimum, there must be an
  examination of the posture in which the nonfederal claim is
  asserted and of the specific statute that confers jurisdiction
  over the federal claim, in order to determine whether "Congress
  in [that statute] has . . . expressly or by implication
  negated" the exercise of jurisdiction over the particular
  nonfederal claim.

Here the "specific statute" at issue is not Section 1983 but the relevant removal statute, Section 1441(c):

  Whenever a separate and independent claim or cause of action,
  which would be removable if sued upon alone, is joined with one
  or more otherwise non-removable claims or causes of action, the
  entire case may be removed and the district court may determine
  all issues therein, or, in its discretion, may remand all
  matters not otherwise within its original jurisdiction.

Although the situation has developed in a roundabout way, the removed Complaint now states (1) Section 1983 and pendent state claims against Rosetl and (2) only state claims against County, Frantz and Schiltz. Although under Aldinger the latter "separate and independent" state claims would not have been within this Court's original jurisdiction, Section 1441(c) implies this Court may adjudicate those claims within the case as now removed. Section 1441(c) thus seems to permit exercise of this Court's constitutional power to a greater extent than does Section 1983 itself.

Nevertheless it is clear this Court ought to exercise its discretion to remand the state law claims against County, Frantz and Schiltz to the state court. Both the Section 1983 and the pendent state claims against Rosetl focus on a discrete incident, the alleged false arrest/imprisonment of Christapher and Harold, and on one defendant's responsibility. On the other hand, the claims against County, Frantz and Schiltz are in part grounded on another incident (the filing of delinquency petitions) assertedly giving rise to state law claims — and even to the extent other claims are grounded on the false arrest/imprisonment incident, they too find their source solely in state law. As with the classic pendent party situation, all those issues are best left to the state court.

It may be that with the claims in their present posture, both plaintiffs and defendants would prefer that all claims be returned to the state court to promote orderly adjudication. That would depend on mutual agreement, for Rosetl has a right to removal if he insists on it.*fn13 What this Court determines is that the entire case should not remain here under all the circumstances.


Plaintiffs' implied motion to dismiss County and Frantz from Counts II, IV and VII is granted as a matter of right. Schiltz is dismissed from Count VII, and Count IV is dismissed in its entirety. This Court retains jurisdiction of (1) Counts II and VII, which now state Section 1983 claims only against Rosetl and (2) the state law claims against Rosetl alone under Counts I and V. All state law claims against County, Frantz and Schiltz in Counts I, III, V and VI are remanded to state court. Rosetl is ordered to answer the Complaint on or before March 18, 1983.

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