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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 ...

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