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HORTON v. MAROVICH

April 30, 1996

EUGENE HORTON, Plaintiff,
v.
GEORGE MAROVICH, et al., Defendants.



The opinion of the court was delivered by: ALESIA

 Before the court is the Illinois Prisoner Review Board's ("IPRB") motion to dismiss plaintiff Eugene Horton's ("Horton") amended complaint against defendant James Irving ("Irving") pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, the court grants the motion to dismiss.

 I. BACKGROUND

 Horton brought an action against various defendants, including Irving, based on alleged violations of Horton's civil rights under 42 U.S.C. §§ 1983 and 1985(3). *fn1" In his complaint, Horton alleges generally that all defendants discriminatorily enforced the law against him because he was black. (Am. Complt. P 1.)

 Horton alleges specifically that the IPRB arbitrarily denied him parole for an impermissible reason. (Am. Complt. P 17(b); Am. Complt. Aff. 252.) Horton claims that he "successfully litigated a pro se habeas corpus petition to correct the unlawful discipline to deny [sic] parole and now sues for compensatory damages for the unnecessary time spent in prison as a result of arbitrary denial of parole and mental anguish suffered." (Am. Complt. P 17(b). See also Am. Complt. Aff. 252; Horton v. Irving, 553 F. Supp. 213 (N.D. Ill. 1982).) Horton alleges that he was selected for systematic and arbitrary denial of his parole because of his race. (Am. Complt. P 1(c); 5(b)(iii); 6; 18(d).) While Horton makes no allegations directly against Irving, the foregoing allegations are the only ones in Horton's amended complaint that possibly could be construed to be against Irving, the former chairman of the IPRB.

 Horton also alleges that each defendant named in his amended complaint "conspired with and aided and abetted" other defendants to violate his rights, privileges and immunities by carrying out their discriminatory practices and acts. (Am. Complt. P 24.)

 In an earlier ruling, this court dismissed all defendants but Irving. *fn2" This court also entered an order of default against Irving for failing to answer or otherwise plead to Horton's complaint. *fn3" This court now vacates the order of default against Irving, and addresses Horton's claims against him on the merits.

 II. DISCUSSION

 A. Standard for a motion to dismiss

 When deciding a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Cromley v. Board of Educ. of Lockport, 699 F. Supp. 1283, 1285 (N.D. Ill. 1988). If, when viewed in the light most favorable to the plaintiff, the complaint fails to state a claim upon which relief can be granted, the court must dismiss the case. See FED. R. CIV. P. 12(b)(6); Gomez v. Illinois State Board of Educ., 811 F.2d 1030, 1039 (7th Cir. 1987). However, the court may dismiss the complaint only if it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 102, 2 L. Ed. 2d 80 (1957).

 Furthermore, the court liberally construes allegations in a pro se complaint, and applies less stringent standards than those applied to professionally drafted complaints. Kincaid v. Vail, 969 F.2d 594, 598 (7th Cir. 1992), cert. denied, Sceifers v. Vail, 506 U.S. 1062, 113 S. Ct. 1002, 122 L. Ed. 2d 152 (1993).

 B. Capacity in which Irving is sued

 The IPRB bases its motion to dismiss on its invocation of sovereign immunity under the eleventh amendment, which the court will address in due course. However, the eleventh amendment provides immunity only to a state, state agency, or state official sued in his official capacity; it does not immunize an official sued in his individual capacity. See Kroll v. Board of Trustees of Univ. of Illinois, 934 F.2d 904, 907 (7th Cir.), cert. denied, 502 U.S. 941, 112 S. Ct. 377, 116 L. Ed. 2d 329 (1991).

 The IPRB contends that Horton sues Irving only in his official capacity, and not in his individual capacity. However, Horton does not explicitly so limit his claim. In fact, in his response to the IPRB's motion to dismiss, Horton alleges that he is suing Irving in both his official and individual capacities. (Pl.'s Resp. to IPRB's Mem. of law in Support of Mot. to Dism. at 1, 2.) Because the court is bound to draw reasonable inferences in favor of ...


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