The opinion of the court was delivered by: Prentice H. Marshall, District Judge.
The complaint in this action alleges that plaintiff Ernest Terry met
with his parole officer, defendant Baxter Burke, who is employed by the
Illinois Department of Corrections, on September 28, 1983. Burke
allegedly handcuffed Terry and beat him without provocation. Count 1 of
the complaint seeks damages under 42 U.S.C. § 1983 (1982) for Burke's
alleged violations of Terry's federal constitutional rights. Count 2 is a
pendent state claim for assault and battery; count 3 is a pendent state
claim for false imprisonment. Burke is named "individually and as agent
of the Illinois Department of Corrections."
Defendant has moved to dismiss the pendent claims, arguing that they
are barred by the eleventh amendment*fn1 as interpreted in Pennhurst
State School & Hospital v. Halderman, ___ U.S. ___, 104 S.Ct.
900, 79 L.Ed.2d 67 (1984). In Pennhurst, the Court considered the
propriety of an injunction requiring state officials to comply with state
law in their administration of a state-owned hospital for the mentally
handicapped. The Court recognized longstanding authority that the
eleventh amendment embodies the traditional sovereign immunity of the
states and accordingly bars a suit against a state by a private party
without its consent, absent congressional abrogation of the state's
immunity. Id. 104 S.Ct. at 907. See also Quern v. Jordan, 440 U.S. 332,
342, 99 S.Ct. 1139, 1145, 59 L.Ed.2d 358 (1979); Fitzpatrick v. Bitzer,
427 U.S. 445, 96 S.Ct. 2666, 49 L.Ed.2d 614 (1976); Edelman v. Jordan,
415 U.S. 651, 673, 94 S.Ct. 1347, 1360, 39 L.Ed.2d 662 (1974); Ex parte
State of New York, 256 U.S. 490, 497, 41 S.Ct. 588, 589, 65 L.Ed. 1057
(1921). The amendment also bars a suit against state officials "when "the
state is the real, substantial party in interest.'" Pennhurst, 104 S.Ct.
at 908 (quoting Ford Motor Co. v. Department of Treasury, 323 U.S. 459,
464, 65 S.Ct. 347, 350, 89 L.Ed. 389 (1945)). However, a suit challenging
a state official's enforcement of an allegedly unconstitutional state
statute is not considered to be against the state even though the decree
will operate against the state. Id. 104 S.Ct. at 909; Ex parte Young,
209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908). The rationale of this
"exception to [the] general rule," Pennhurst, 104 S.Ct. at 909, is that
unconstitutional enactment is void and the state officer is accordingly
stripped of his official or representative character. Even in such
circumstances, however, the eleventh amendment bars an award of
retroactive monetary relief from the state treasury. Edelman v. Jordan,
415 U.S. at 666—67, 94 S.Ct. at 1357— 58. In Pennhurst, the
Court characterized Edelman's distinction between prospective and
retrospective relief as "fulfill[ing] the
underlying purpose of Ex parte Young while at the same time preserving to
an important degree the constitutional immunity of the States."
Pennhurst, 104 S.Ct. at 911.
In Pennhurst, a federal court had issued an injunction based on state
officials' violation of duties imposed not by the constitution but rather
by state law. The plaintiff argued in the Supreme Court that the
rationale of Ex parte Young applied to state law claims as well as
federally-based claims. The Court rejected this argument, stating that
the Young doctrine had been "accepted as necessary to permit the federal
courts to vindicate federal rights Pennhurst, 104 S.Ct. at 910. That
purpose is not served, the Court said, where relief is sought on the basis
of state law. Further, "it is difficult to think of a greater intrusion
of state sovereignty than when a federal court instructs state officials
on how to conform their conduct to state law." Id. at 911. The Court
therefore concluded that Young does not apply to a suit against state
officials based on state law violations.
Read broadly, Pennhurst arguably may be construed as barring a state
tort claim of the type plaintiff makes here; when damages are awarded for
state-law torts, a state official is being mulcted for not complying with
state law. However, it is important to bear in mind that in Pennhurst, at
least as the majority of the justices viewed the case, it could not be
questioned that the relief ordered operated against the state itself.
Id. at 911-12. "[A]ll the relief ordered by the courts below was
institutional and official in character. To the extent there was a
violation of state law in this case, it is a case of the State itself not
fulfilling its legislative promises. Id. at 912. Thus, Pennhurst was not
a case in which the relief would operate only against individual state
officers. Rather, the case presented the state law equivalent of the
factual setting of Ex parte Young; the Court's holding was that Ex parte
Young did not apply to a state law claim, and accordingly the Court
applied the "general rule" that the eleventh amendment bars a suit against
the state. Further, the Court took pains to distinguish several cases
cited by the dissenting justices that permitted actions for damages
against federal officials in spite of a defense of sovereign immunity,
stating that those cases "drew a careful distinction between [actions for
damages in tort against the individual officer] and suits in which the
relief would run more directly against the State." Id. 104 S.Ct. at 914
n. 21 (citing cases). See generally Larson v. Domestic & Foreign Commerce
Corp., 337 U.S. 682, 687-88 & nn. 7, 8, 69 S.Ct. 1457, 1460—61 &
nn. 7, 8, 93 L.Ed. 1628 (1949) (distinguishing between cases seeking
damages in tort against an individual officer and those seeking
injunctive relief against the officer in his official capacity), cited in
Pennhurst, 104 S.Ct. at 914 n. 21. This indicates that the Court did not
intend to express a broad rule applicable to cases like the present one.
As Pennhurst itself recognized, the key issue in determining whether
the eleventh amendment is a bar to a particular lawsuit is whether the
state is the real party in interest. If it is not, the eleventh amendment
presents no bar to the suit, for it is not an action against the state.
This principle applies equally whether the suit is based on federal or
state law, irrespective of Pennhurst, for it is not based on the Ex parte
Young "ultra vires" theory.
In the present case, plaintiff has named Burke individually and "as
agent of the Illinois Department of Corrections." The Department is not a
party to this lawsuit, and plaintiff does not expressly seek relief
against it. However, to the extent that the "agency" allegation seeks to
hold the Department of Corrections responsible for Burke's conduct, it is
out of place here. Without deciding whether an action against Burke in
his official capacity (if indeed a parole officer has an official
capacity) would be appropriate apart from the eleventh amendment, the
clear import of Pennhurst and the other eleventh amendment cases on which
it relied is that plaintiff
cannot make the state the real party in interest to a federal court
lawsuit based on state law violations.*fn2
However, insofar as plaintiff seeks damages against Burke
individually, the eleventh amendment and Pennhurst pose no obstacle to
his claims. The "individual capacity" aspect of this litigation in no way
seeks to require the state of Illinois to pay plaintiff damages. Though
under Adden v. Middlebrooks, 688 F.2d 1147, 1150-52 (7th Cir. 1982), we
must first determine whether the suit is one properly brought against
defendant as an individual under Illinois law, where, as here, the
officer is alleged to have acted beyond the bounds of his official
authority, the action properly may be brought against him individually.
E.g., Hoffman v. Yack, 57 Ill. App.3d 744, 15 Ill.Dec. 140, 373 N.E.2d 486
(1978). The eleventh amendment and Adden therefore do not bar this
It may be that defendant's motion to dismiss is based in part on the
fact that Illinois indemnifies state employees for judgments against them
in certain circumstances. See Ill.Rev.Stat. ch. 127, § 1302 (1983).
We have, however, recently rejected that argument, holding in McAdoo v.
Lane, 564 F. Supp. 1215, 1217—20 (N.D.Ill. 1983) that such a
voluntary choice by a state does not convert a judgment against an
individual state officer into a judgment that binds the state. See also
Demery v. Kupperman, 735 F.2d 1139, 1148-49 (9th Cir. 1984). Defendant
has said nothing in this lawsuit that persuades us to depart from the
principle of McAdoo.
For the reasons stated above, defendant's motion to dismiss counts 2
and 3 of the complaint is denied except insofar as plaintiff seeks to sue
defendant in his official capacity. Defendant is to answer counts 2 and ...