§ 1983, a plaintiff must allege that defendants were personally involved in the deprivation of his constitutional rights." McMurry v. Sheahan, 927 F. Supp. 1082, 1996 WL 296585, *3 (N.D. Ill. 1996) (citing Whitford v. Boglino, 63 F.3d 527, 530-31 (7th Cir. 1995)). By not establishing a nexus between Jolas and the allegedly restrictive situations plaintiff experienced, he fails to show that Jolas deprived him of his Fifth Amendment rights or to state an individual capacity claim against Jolas on this basis.
Third, plaintiff impliedly alleges that Jolas violated his Sixth Amendment right to counsel. The right to counsel attaches only at or after the initiation of adversarial proceedings (i.e. formal charge, preliminary hearing, indictment, information, or arraignment). United States v. Jungels, 910 F.2d 1501, 1505 (7th Cir. 1990) (citation omitted). Here, there is no claim or evidence that adversarial proceedings had been initiated against plaintiff. Therefore, the right to counsel did not attach, and there is no Sixth Amendment violation. In the end, plaintiff's claims against Jolas for a violation of his Fifth and Sixth Amendment rights are dismissed for failure to state a claim.
C. Res Judicata, Abstention and Punitive Damages
At this point, the following claims remain: (1) a Fourth Amendment claim against Jolas in his individual capacity; (2) Count I against Kamarauskas; and (3) Count IV against Kamarauskas. Defendants do not move for dismissal of any of the claims against Kamarauskas, so these shall remain a part of this action. Defendants assert several alternative grounds for dismissal that do not need to be analyzed fully in light of my decision to dismiss most of plaintiff's claims on other grounds. However, I will narrowly examine defendants' two other arguments for dismissal to determine whether either of them knock out the last remaining claim against Jolas.
Defendants argue for dismissal of the entire complaint against the School District Defendants based on the doctrine of res judicata.
"The doctrine of res judicata provides that a final judgment on the merits rendered by a court of competent jurisdiction bars any subsequent actions between the same parties or their privies on the same cause of action. Rein v. David A. Noyes & Co., 172 Ill. 2d 325, 334, 665 N.E.2d 1199, 1204, 216 Ill. Dec. 642, 647 (1996). The effect of a state court judgment in federal court depends upon state law of res judicata. McNealy v. Caterpillar Inc., 1996 U.S. Dist. LEXIS 19587, 1997 WL 7564, at *3 (N.D. Ill. Jan. 1, 1997) (citing Rekhi v. Wildwood Indus., Inc., 61 F.3d 1313, 1317 (7th Cir. 1995)). Under Illinois law, an action is barred by res judicata when there is: (1) an identity of parties or privies; (2) an identity of cause of action; and (3) a final judgment on the merits rendered by a court of competent jurisdiction. McNealy, 1996 U.S. Dist. LEXIS 19587, 1997 WL 7564, at *3 (citing Retired Chicago Police Ass'n v. City of Chicago, 7 F.3d 584, 591 (7th Cir. 1993) (citations omitted)).
An initially obvious problem for defendants here is that Jolas was not a party in the state action, and thus he must qualify as a "privy" if res judicata has any chance of applying here. Is Jolas in privity with any party in the state action? In state court, plaintiff sued seven Homer School District Board of Education members in their official capacities. Where official capacity suits against government officials are actually against their government employer, see, e.g., Edwards v. City of Quincy, 124 Ill. App. 3d 1004, 464 N.E.2d 1125, 1129, 80 Ill. Dec. 142 (Ill. App. Ct. 1994), the true defendant in plaintiff's state suit was the School District Board of Education. Here, plaintiff sued Jolas in his individual capacity. Thus, Jolas, and not the School District, is the actual party. The general rule is that government employees sued in their individual capacities are not in privity with their government employer. Beard v. O'Neal, 728 F.2d 894, 897 (7th Cir. 1984). Consequently, Jolas, in his individual capacity, is not in privity with the School Board that plaintiff sued in state court. Defendants fail to address this point, and so I now conclude that res judicata does not bar this specific claim against Jolas.
Alternatively, defendants argue that federal court abstention is appropriate under Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976). Abstention is proper under certain exceptional circumstances based on considerations of "wise judicial administration." Starzenski v. City of Elkhart, 87 F.3d 872, 878 (7th Cir. 1996). Defendants fail to cite any exceptional circumstances advocating application of this doctrine, and besides, Jolas was never part of the allegedly ongoing state action. Therefore, I find that abstention is not proper here.
Finally, defendants move to dismiss or, in the alternative, strike plaintiff's request for exemplary and punitive damages. Plaintiff contends that this request only pertains to the defendants sued in their individual capacities. The only such claim still remaining now is against Jolas for a violation of plaintiff's Fourth Amendment rights. Punitive damages are available in a § 1983 action when the defendant's conduct is shown to be motivated by evil motive or when it involves reckless or callous disregard to the federally protected rights of others. Smith v. Wade, 461 U.S. 30, 56, 75 L. Ed. 2d 632, 103 S. Ct. 1625 (1983). Defendants argue that plaintiff failed to allege recklessness or evil motive sufficient to sustain this claim. Here, where plaintiff alleged that Jolas engaged in abusive, threatening, and intimidating daily interrogations of plaintiff, I conclude that he satisfied the lenient pleading standard to withstand a motion to dismiss.
Pursuant to the foregoing analysis, I conclude that Counts II, III, V, and VI are hereby dismissed for failure to exhaust administrative remedies. Under Count I, plaintiff's claims that Jolas violated his Fifth and Sixth Amendment rights are dismissed. As a result, Count I against Jolas, in his individual capacity, alleging a violation of plaintiff's Fourth Amendment rights survives this motion, as do Counts I and IV to the extent they assert claims against Kamarauskas. In sum, defendant's Motion to Dismiss is hereby GRANTED in part, and DENIED in part.
James B. Zagel
United States District Judge