United States District Court, Northern District of Illinois, E.D
May 13, 1983
LEIGH F. MCADOO, PLAINTIFF,
MICHAEL V. LANE, HAROLD THOMAS, MICHAEL CRAFT, ANTHONY SCILLIA, LEMUEL SYKES, DEFENDANTS.
The opinion of the court was delivered by: Prentice H. Marshall, District Judge.
In this case, plaintiff seeks relief for a deprivation of
his constitutional rights under 42 U.S.C. § 1983 (Supp. IV
1980). Plaintiff was a parole officer for the Illinois
Department of Corrections. He alleges that defendants, all
officials of the department, "engaged in a course of conduct
designed to harass, humiliate and frustrate the plaintiff in
the performance of his job duties." Complaint ¶ 10. This was
"done in a deliberate and calculated effort to remove the
plaintiff from his position by forcing him to resign and
thereby making the protections of the personnel code
unavailable to him." Id. ¶ 12. As a result plaintiff suffered
anxiety, stress, and eventually went on disability status at
substantially reduced pay, Id. ¶¶ 14-15. Plaintiff claims that
this course of conduct deprived him of property without due
process of law, in violation of U.S. Const.amend. XIV.
Defendants have moved to dismiss the complaint.
Defendants' first argument is that the eleventh amendment
bars this action.*fn1 Defendants rely principally on
Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662
(1974), where the Court held that an action seeking to have the
director of the Illinois Department of Public Aid pay welfare
recipients funds that had been wrongfully withheld from them
was barred by the eleventh amendment. Although the suit was
brought not against the state, but the director, the Court
nevertheless held that the amendment applied because in
substance the suit challenged the actions of the state and the
judgment would be paid by the state. "[A] suit by private
parties seeking to impose a liability which must be paid from
public funds in the state treasury is barred by the Eleventh
Amendment." Id. at 663, 94 S.Ct. at 1356.
Defendants argue that Edelman governs this case since the
state must pay a judgment against them under Illinois law,
which provides that a state employee will be indemnified by the
state for any judgment against him or her unless the employee
engaged in intentional, willful or wanton conduct not intended
to serve the best interests of the state, Ill.Rev.Stat. ch.
127, ¶ 1302(c) (1981).*fn2 There are some courts that would
hold that the fact that a judgment will be paid from state
more, raises the bar of the eleventh amendment.*fn3 However,
the great weight of authority is to the contrary. In Ex parte
Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), the
Court held that when a state official violates the
Constitution, the official is stripped of his eleventh
amendment immunity since he has engaged in conduct that is
beyond the constitutional power of the state to authorize. See
id. at 159-60, 28 S.Ct. at 453-54. The holding of Ex parte
Young was specifically applied to actions for damages against
state officials in Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct.
1683, 40 L.Ed.2d 90 (1974). The Court observed that,
Fairly read, the complaints allege that each of
the named defendants . . . acted either outside
the scope of his respective office or, if within
the scope, acted in an arbitrary manner, grossly
abusing the lawful powers of office.
Id. at 235, 94 S.Ct. at 1686. The Court then held that given
these allegations, "we see that petitioners allege facts that
demonstrate that they are seeking to impose individual and
personal liability on the named defendants for what they
claim . . . was a deprivation of federal rights. . . ." Id. at
238, 94 S.Ct. at 1687 (emphasis in original). As a result, the
Court held that the action was not barred by the eleventh
amendment. See id.
Following Scheuer, a long line of cases has held that where
it is alleged that defendants deprived the plaintiff of federal
rights while acting beyond their authority or while abusing
their authority, the eleventh amendment permits an action to be
maintained against individual state officers.*fn4 In such
cases, the action seeks to hold the officials personally
liable; no judgment is sought against the state.*fn5 This
principle was restated only last Term by Justice Stevens,
speaking for four members of the Court.
[T]he Eleventh Amendment does not bar an action
against a state official that is based on a
theory that the officer acted beyond the scope of
his statutory authority or, if within that
authority, that such authority is
unconstitutional. In such an action, however, the
Amendment places a limit on the relief that may
be obtained by the plaintiff. If the action is
allowed to proceed against the officer only
because he acted without proper authority, the
judgment may not compel the State to use its
funds to compensate the plaintiff for the injury.
Florida Department of State v. Treasure Salvors, Inc., ___ U.S.
___, 102 S.Ct. 3304, 3317, 73 L.Ed.2d 1057 (1982) (opinion of
Stevens, J.).*fn6 See also Cory v. White, 457 U.S. 85, 102
S.Ct. 2325, 2329, 72 L.Ed.2d 694 (1982); Ford Motor Co. v.
Department of Treasury, 323 U.S. 459, 462, 65 S.Ct. 347,
349-50, 89 L.Ed. 389 (1945).*fn7
Fairly read, the instant complaint alleges a course of
harassment either outside the lawful scope of defendants'
authority or that resulted from a gross abuse of their
authority, and which deprived plaintiff of a federal right.
This falls squarely under Scheuer. Plaintiff seeks to hold
defendants liable for their personal conduct only; no judgment
is sought against the state.
The Illinois indemnity statute does not alter this
conclusion. The statute represents a voluntary decision by
Illinois to indemnify defendants. If plaintiffs obtain a
judgment against defendants, under the eleventh amendment that
judgment will bind defendants only. The eleventh amendment
requires only that nothing in this court's judgment compel the
state to pay the judgment. If defendants seek to compel the
state to indemnify them, they will have to file a separate
action in state court; nothing in our judgment would bind the
state. Since the indemnity statute is enforceable against the
state if at all in state court, and since our judgment will in
no way compel the state to indemnify plaintiffs, this action
is not against the state within the meaning of the eleventh
amendment; it is brought only against named individuals and
hence is not barred by the amendment. Every court to consider
the effect of such indemnity statutes under the eleventh
amendment has reached the same conclusion. See Ronwin v.
Shapiro, 657 F.2d 1071, 1074-75 (9th Cir. 1981); Downing v.
Williams, 624 F.2d 612, 626 (5th Cir. 1980), vacated on other
grounds, 645 F.2d 1226 (1981); Huecker v. Milburn,
538 F.2d 1241, 1244-45 & n. 8 (6th Cir. 1976) (dictum); Palmer v.
Penn-Ohio Road Materials, Inc., 470 F. Supp. 1199, 1202-03
(E.D.Pa. 1979); Broome v. Percy, 470 F. Supp. 633, 635-36
(E.D.Wis. 1979); Ware v. Percy, 468 F. Supp. 1266, 1268
(E.D.Wis. 1979).*fn8 But see generally
Hallmark Clinic v. North Carolina Department of Human
Resources, 380 F. Supp. 1153, 1159-60 (E.D.N.C. 1974)
(discussing but not deciding the question).*fn9
Defendants' second argument is that this action is precluded
by the decision of the Illinois Department of Human Rights
dismissing a complaint plaintiff filed regarding the
misconduct alleged here. Defendants contend that the
department decided the same issue presented here against
plaintiff, and that its decision precludes plaintiff's attempt
to relitigate this question here.
Under 28 U.S.C. § 1738 (1976), we must give the decision of
the Illinois Department of Human Rights the same preclusive
effect as it would receive in Illinois state courts. See
generally Allen v. McCurry, 449 U.S. 90, 101 S.Ct. 411, 66
L.Ed.2d 308 (1980).*fn10 Under Illinois law, issue preclusion,
or collateral estoppel, applies only to issues that were
actually decided in the prior litigation. E.g., People v. Bone,
82 Ill.2d 282, 45 Ill.Dec. 93, 412 N.E.2d 444 (1980), cert.
denied, 454 U.S. 839, 102 S.Ct. 145, 70 L.Ed.2d 120 (1981);
Department of Transportation v. Shaw, 68 Ill.2d 342, 347-48, 12
Ill.Dec. 177, 179, 369 N.E.2d 884, 886 (1977); Smith v. Bishop,
26 Ill.2d 434, 436-37, 187 N.E.2d 217, 218-19 (1963). Illinois
law also sharply limits the jurisdiction of the Department of
Human Rights. The department has jurisdiction to investigate
and dispose of charges filed pursuant to the Illinois Human
Rights Act. Ill.Rev.Stat. ch. 68, ¶ 7-102(B) (1981). The act
prohibits "unlawful discrimination" in employment. Id. ¶ 2-102.
"Unlawful discrimination" means discrimination
against a person because of his or her race,
color, religion, national origin, ancestry, age,
sex, marital status, handicap or unfavorable
discharge from military service. . . .
Id. ¶ 1-103(Q). Plaintiff's complaint here is that defendants
engaged in a course of harassment that deprived him of property
without due process of law. None of the types of discrimination
covered by the act is alleged. Hence, the department did not
have jurisdiction to consider the issue plaintiff raises here,
and could not have decided it against him. The department's
decision in plaintiff's case in no way precludes the instant
Defendants' third argument is that the complaint does not
state a claim under the due process clause. There are four
elements of a due process claim under § 1983: A (1) person
acting under color of state law (2) deprived plaintiff (3) of
constitutionally protected property (4) without due process of
law. See Parratt v. Taylor, 451 U.S. 527, 536-37, 101 S.Ct.
1908, 1913-14, 68 L.Ed.2d 420 (1981). Defendants concede the
first element is alleged here but contest the other three.
Defendants claim they never "deprived" plaintiff of anything
within the meaning of § 1983, that their alleged harassment
amounts at most to the intentional infliction of emotional
distress that may be actionable under state law but is not a
"deprivation." This contention is foreclosed by the decision in
Reed v. Village of Shorewood, 704 F.2d 943 (7th Cir. 1982).
There it was alleged in the context of a § 1983 action that the
defendants had harassed plaintiffs to the point where
plaintiffs were forced to give up their liquor license. The
court held that this was an actionable "deprivation." See op.
at 949. If plaintiff can prove that defendants' harassment
ultimately forced him to give up his job, he will have proved a
"deprivation" under Reed.*fn12
Defendants also claim that plaintiff has not asserted a
constitutionally protected property interest. Constitutionally
protected property is present where plaintiff asserts a
legitimate claim of entitlement not to lose a valuable
governmental benefit except for cause.*fn13 Plaintiff
contends, and defendants have not yet specifically denied the
allegation, that plaintiff had a right under state law not to
be fired absent cause. The provisions of the Illinois
Personnel Code tend to bear this out. See Parkhill v. Civil
Service Commission, 58 Ill. App.3d 291, 292, 15 Ill.Dec. 819,
820, 374 N.E.2d 254, 255 (1978); Norris v. Commission on Human
Relations, 26 Ill. App.3d 528, 539-40, 325 N.E.2d 818, 826
(1975); Ill.Rev.Stat. ch. 127, ¶ 63b108b.16 (1981).
Accordingly, plaintiff's interest in keeping his position as a
parole officer was a property interest. See generally Powell v.
Jones, 56 Ill.2d 70, 305 N.E.2d 166 (1973) (state employees
protected for dismissal absent cause by the personnel code have
property interests in their positions).*fn14
Finally, defendants contend that plaintiff was not denied
due process of law since he could have challenged defendants'
conduct and hence received a hearing under the Illinois
Personnel Code, Ill.Rev.Stat. ch. 127, ¶¶ 63b110(6), 63b111.
However, the statute provides for a hearing only in the case of
wrongful demotion or termination.
That did not occur here; plaintiff was not terminated,
demoted, or even transferred by defendants. He voluntarily put
himself on disability, allegedly because of defendants'
harassment. No provision of the Personnel Code has been
brought to our attention which would have permitted plaintiff
to obtain a hearing on "harassment."*fn15
In any event, Parratt v. Taylor, 451 U.S. 527, 101 S.Ct.
1908, 68 L.Ed.2d 420 (1981), on which defendants rely, does not
bar plaintiff's claim.*fn16 Defendants contend only that
plaintiff could have received a post-deprivation hearing under
state law. See Memorandum in Support of Defendants' Motion to
Dismiss at 5-7.*fn17 However, Parratt's holding that due
process may be satisfied by a post-deprivation hearing is
applicable only where it would have been impracticable for the
state to have provided any predeprivation process. See Vail v.
Board of Education, 706 F.2d 1435, 1440 (7th Cir. 1983); Begg
v. Moffitt, 555 F. Supp. 1344 (N.D.Ill. 1983). Defendants have
not yet attempted to show that it would have been impracticable
to accord plaintiff any predeprivation process. Hence, the
claimed availability of a post-deprivation hearing is not
sufficient to satisfy due process. Plaintiff has stated a claim
under the due process clause.
Defendants' motion to dismiss the complaint is denied. Prior
trial schedule to stand. Defendants are ordered to answer the
complaint within 14 days.