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

May 13, 1983


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 funds, without 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. Moreover,

  "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 action.*fn11

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.

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