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MAGNUSON v. CASSARELLA

July 9, 1992

JENNIFER A. MAGNUSON, Plaintiff,
v.
OFFICER MICHAEL CASSARELLA, et al., Defendants.



The opinion of the court was delivered by: MARVIN E. ASPEN

 MARVIN E. ASPEN, District Judge:

 Plaintiff Jennifer A. Magnuson brings this pro se civil rights action pursuant to 42 U.S.C. § 1983 against the Cook County Sheriff's Police Department, Officer Michael Cassarella, nine unknown police officers, Cook County Board President Richard Phelan, and sixteen commissioners of the Cook County Board, alleging violations of the United States and Illinois Constitutions and of Illinois state law. Presently before the court are (1) a motion to dismiss filed on behalf of the Cook County Sheriff's Department, Board President Phelan and the sixteen commissioners of the Cook County Board, *fn1" and (2) Officer Cassarella's motion to dismiss Counts III, IV, and VII-IX of Magnuson's complaint, as well that portion of Count II alleging deprivation of property. For the reasons set forth below, we grant both motions.

 I. Standard of Review

 It is settled law that the allegations within a pro se complaint, however inartfully pleaded [are held] to less stringent standards than formal pleadings drafted by lawyers . . . ." Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 596, 30 L. Ed. 2d 652 (1972); see also Maclin v. Paulson, 627 F.2d 83, 86 (7th Cir. 1980). "Such a complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Hughes v. Rowe, 449 U.S. 5, 10, 101 S. Ct. 173, 176, 66 L. Ed. 2d 163 (1980) (per curiam) (citing Haines, 404 U.S. at 520-21, 92 S. Ct. at 596); see also Neitzke v. Williams, 490 U.S. 319, 327, 109 S. Ct. 1827, 1832, 104 L. Ed. 2d 338 (1989). As always, in ruling on each of the motions to dismiss, the court accepts as true the factual allegations of the complaint. See Hughes, 449 U.S. at 10; 101 S. Ct. at 176 (citing Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972)).

 II. Background

 On August 15, 1991, at approximately 10:05 p.m., Officer Michael Cassarella, along with another police officer, entered Magnuson's parents home, unannounced and without a valid search warrant. Magnuson, a minor, was present at the time, as was her baby and the baby's father, identified in the complaint as Manuel. Magnuson instructed the officers to leave, but the officers refused informing Magnuson that they were responding to a report of domestic violence. At the officers' request, Magnuson produced identification for herself and Manuel.

 Shortly thereafter, eight additional officers entered the Magnuson home, again unannounced and without a valid warrant. One officer, apparently inspecting the baby's condition, shined a flashlight into the baby's face. Manuel protested, leading the officer to ask who the baby belonged to. Magnuson informed the officer that the baby was hers, prompting the officer to order Manuel to hand the baby to Magnuson. Two officers escorted Magnuson and her baby into the kitchen, restraining Manuel in the living room. Responding to questioning from the officers, Magnuson informed them that she had an argument with Manuel. One of the officers shined a flashlight at Magnuson, lifting her shirt sleeve to reveal a red mark on her arm admittedly caused by Manuel.

 The officers asked Magnuson to "sign a complaint" against Manuel, but she refused. In order to persuade her, the officers allegedly threatened to sign the complaint themselves and then call the Illinois Department of Children and Family Services to have the baby taken from her. Once again Magnuson refused to sign a complaint, and asked the officers to leave the premises. While Magnuson was being questioned in the kitchen, other officers in the living room told Manuel to leave. Manuel refused, claiming he had been an invited guest. The officer handcuffed Manuel, removing him from the house and bringing him to the Rolling Meadows Police Station. Another officer escorted Magnuson and her baby to a separate vehicle, likewise bringing them to the Rolling Meadows Police Station. Once at the station, Magnuson was questioned regarding her parents opinion of Manuel, whether Manuel was affiliated with a streetgang, his birthplace, and any possible drug use. After this questioning, she and her baby were driven home by a police officer. No charges were filed against Magnuson in connection with this incident.

 III. Discussion

 A. Cook County Sheriff's Police Department

 Cook County Sheriff's Police Department ("CCSPD") claims that it is a non-suable entity, and therefore must be dismissed from this case. The federal courts look to state law to determine if a defendant is amenable to suit. Fed. R. Civ. P. 17(b). To be sued in Illinois, a defendant must have a legal existence, either natural or artificial. Jackson v. Village of Rosemont, 180 Ill. App. 3d 932, 937-38, 536 N.E.2d 720, 723, 129 Ill. Dec. 670 (1st Dist. 1988). Illinois law provides that CCSPD is to be maintained as a "division" of the Sheriff of Cook County, consisting of deputy sheriffs charged with the duty of law enforcement. Ill. Rev. Stat. ch. 34, P 3-7001 (1992). Further, a review of the Sheriff's responsibility over such deputy sheriffs reveals that CCSPD does not enjoy a separate legal existence apart from the Sheriff of Cook County, and therefore is not a suable entity. See Larsen v. Leak, No. 90-7289, 1992 U.S. Dist. LEXIS 229, at *2-3 (N.D. Ill. Jan. 8, 1992); Mayes v. Elrod, 470 F. Supp. 1188, 1192 (N.D. Ill. 1979). Accordingly, we grant CCSPD's motion to dismiss.

 B. Individual Liability of Board Defendants

 A defendant sued in her individual capacity can only be held liable under § 1983 for her individual wrongdoing. Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir. 1986); Duckworth v. Franzen, 780 F.2d 645, 650 (7th Cir. 1985), cert. denied, 479 U.S. 816, 107 S. Ct. 71, 93 L. Ed. 2d 28 (1986). As stated in Wolf-Lillie v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983): "Section 1983 creates a cause of action based upon personal liability and predicated upon fault. An individual cannot be held liable in a § 1983 action unless he caused or participated in an alleged constitutional violation." Thus, § 1983 does not recognize the doctrine of superiors' liability, McKinnon v. City of Berwyn, 750 ...


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