United States District Court, Northern District of Illinois, E.D
March 8, 1983
CHRISTAPHER J. MARTIN, ET AL., PLAINTIFFS,
COUNTY OF KENDALL, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
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
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
Plaintiffs' Ans.Mem.  and  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
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
Motion To Dismiss
Our Court of Appeals has recently noted (Crowder, 687 F.2d at
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
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
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.
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
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,
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
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