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September 24, 1990

ELTON HOUSTON, et al., Plaintiffs,
COOK COUNTY, et al., Defendants

Milton I. Shadur, United States District Judge.

The opinion of the court was delivered by: SHADUR



 This 42 U.S.C. § 1983 ("Section 1983") Complaint by Elton Houston ("Houston") and Robert Brown ("Brown") sets out a factual statement that, taken at face value (as this Court must do), recounts truly outrageous conduct on the part of Assistant State's Attorneys -- their nondisclosure and affirmative concealment of exculpatory information that caused Houston and Brown to suffer unjust imprisonment for over four years for a murder that they did not commit. *fn1" But the problem that Houston and Brown face here is one that they must overcome at the threshold, before the merits of their claims can even be approached: They have named, as the only defendants here, parties who are not amenable to suit under Section 1983. Their federal claims must therefore be dismissed, and that dismissal has a domino effect on their state claims as well.

 This Court's August 3, 1990 memorandum opinion and order (the "Opinion") directed the parties to focus on the issue of suability, with special emphasis on the Illinois Supreme Court's decision in Ingemunson v. Hedges, 133 Ill. 2d 364, 549 N.E.2d 1269, 140 Ill. Dec. 397 (1990). Now they have completed their briefing, and counsel for Houston and Brown have failed to overcome the hurdle identified in the Opinion. *fn2"

 Will v. Michigan Department of State Police, 491 U.S. 58, 109 S. Ct. 2304, 2311-12, 105 L. Ed. 2d 45 (1989) teaches definitively that the definition of "persons" suable under Section 1983 does not extend either to the State itself or to official-capacity lawsuits against State officials (citations and footnote omitted):


Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office. As such, it is no different from a suit against the State itself. We see no reason to adopt a different rule in the present context, particularly when such a rule would allow petitioner to circumvent congressional intent by a mere pleading device.


We hold that neither a State nor its officials acting in their official capacities are "persons" under § 1983.

 And of course it is the State that defines its own governmental structure for that purpose, deciding who are and who are not its "officials." *fn3"

 Last year this Court, confronted with that question whether under Illinois law "the State's Attorney is indeed the legal equivalent of the State itself" ( Santiago v. Daley, 726 F. Supp. 198 (N.D. Ill. 1989)) had to make do by parsing out inferences from some Illinois Court of Claims cases (which of course dealt with the problem in a different context) and Illinois Appellate Court cases. Based on that patching together of prior precedent Santiago concluded (726 F. Supp. at 200 (emphasis in original)):


Illinois law does not equate the State's Attorney with the State for Section 1983 purposes.

 But since then the Illinois Supreme Court itself has had occasion to speak to the issue -- also in a different context, to be sure, but in a way that this Court must view as a binding construction of the Illinois Constitution. Ingemunson acknowledged the holdings in the 1906 Illinois Supreme Court decision that had later been relied on by the Court of Claims' decisions to which Santiago had referred, as well as acknowledging the Illinois Appellate Court decisions to which Santiago had also referred. But having done so, Ingemunson, 133 Ill. 2d at 369-70, 549 N.E.2d at 1271-72 specifically rejected those earlier authorities in favor of a decision that dooms the official-capacity claim against Cook County State's Attorney Cecil Partee ("Partee") here:


Hoyne [ v. Danisch (1914), 264 Ill. 467, 106 N.E. 341] established that State's Attorneys are State officers under the language of the constitution, not, as the court had concluded in Williams, county officers. ( Hoyne, 264 Ill. at 470-72, 106 N.E. 341.) The debates of the Sixth Illinois Constitutional Convention of 1969-70 indicate that the drafters of our present constitution agreed with the decision in Hoyne that State's Attorneys should be classified as State, rather than county, officials. (see 2 Record of Proceedings, Sixth Illinois Constitutional Convention 730-31, 741-42.) *fn4"

 Counsel for Houston and Brown advances a few ingenious suggestions as to why Ingemunson should not control here. None is persuasive. What cannot be gainsaid is that Ingemunson expressly reviewed the earlier precedent and reached a different conclusion, which this Court must perforce accept as the definitive ruling under Illinois law. And relatedly this Court must of course assume that the Illinois Court of Claims -- which had relied on the earlier contrary precedent now found noncontrolling in Ingemunson -- will accept the command of the Illinois Supreme Court in Ingemunson as well.

 Partee in his official capacity, then, is not a "person" for Section 1983 purposes. Complaint Count I, the federal claim against Partee, is therefore dismissed.

 As for Cook County, this Court finds the opinion of its colleague Honorable Nicholas Bua in Stokes v. City of Chicago, 660 F. Supp. 1459, 1462-63 (N.D. Ill. 1987) wholly persuasive. *fn5" Because County as such plays no role in the prosecutorial activities that form the gravamen of this action, the prohibition against vicarious liability under Section 1983 (akin to the principle announced and applied in Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 690-94, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978) and its numerous progeny) insulates County against any Section 1983 liability for actions taken by Assistant State's Attorneys -- staffers who act solely under the supervision and control of the Cook County State's Attorney. That result is compelled not only by the obvious thrust of Monell and such cases but also by parity of reasoning with the status of the Sheriff of Cook County, who like the State's Attorney "is an independently-elected constitutional officer who answers only to the electorate, not to the Cook County Board of Commissioners" ( Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1989), citing this Court's opinion in Thomas v. Talesky, 554 F. Supp. 1377, 1378-79 (N.D. Ill. 1983)). That means Houston and Brown cannot maintain their Count I federal claim against County either.


 For the reasons stated in this memorandum opinion and order, both Partee in his official capacity and County are non-suable under Section 1983 for the matters set out in the Complaint. All of Count I is therefore dismissed. And because the only federal-question claims have thus been dismissed at the outset, the plain teaching of United Mine Workers v. Gibbs, 383 U.S. 715, 726-27, 16 L. Ed. 2d 218, 86 S. Ct. 1130 (1966) calls for dismissal without prejudice of the Count II pendent claims. This action is therefore dismissed in its entirety.

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