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.
[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 ...