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May 6, 1998

MARIO DE GENOVA, Plaintiffs,

The opinion of the court was delivered by: MORAN


 Plaintiff Mario DeGenova brought this action under 42 U.S.C. § 1983 alleging that his constitutional rights were violated when he was arrested and taken into custody by the Sheriff of DuPage County (and other defendants not party to the instant motion). In his complaint, DeGenova alleged that the Sheriff of DuPage County is liable in his official capacity for this offense. Defendant has moved to dismiss on the ground that he is an officer of the State of Illinois and is therefore immune from suit under the Eleventh Amendment. For the reasons stated herein, defendant's motion to dismiss is denied.


 In considering a motion to dismiss under Fed.R.Civ.P. 12(b)(6) for failure to state a claim, we accept all well-pled factual allegations in the complaint as true and draw all reasonable inferences from these facts in favor of the plaintiff. Travel All Over the World, Inc. v. The Kingdom of Saudi Arabia, 73 F.3d 1423, 1429 (7th Cir. 1996). Read in this light, the facts are as follows:

 On October 2, 1996, Robert J. Stahurski signed a complaint in which he falsely alleged that plaintiff Mario DeGenova had committed the misdemeanor offense of causing property damage to Stahurski's lawn. (The complaint does not explain the relationship between DeGenova and Stahurski.) Pursuant to Stahurski's complaint, an Illinois state judge apparently issued an arrest warrant for DeGenova and set bond on the warrant at five thousand dollars. On October 16, 1996, two DuPage County deputy sheriffs, one of whom was Sheriff Burtucca, entered DeGenova's home and arrested him. At this point, DeGenova claims that he informed Burtucca that he had a cardiac condition which required medication. DeGenova further claims that Burtucca ignored this request both at the time of the arrest and throughout the period of detention, which ended the evening of October 17, 1996. As a result, DeGenova suffered serious medical harm. In his complaint, DeGenova claims that the sheriff's neglect of his medical condition amounted to a deprivation of his rights under the Fourth and Fourteenth Amendments.


 I. State Officers and Eleventh Amendment Immunity

 Plaintiff DeGenova has brought suit under 42 U.S.C. § 1983, which provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State . . . causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution . . . shall be liable . . ." The Supreme Court has interpreted the term "person" to include not only natural persons, but legal persons as well, such as states, municipalities and local governments. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1977).

 Plaintiff alleges that the sheriff is liable in his official (as opposed to individual) capacity. Courts regard official capacity suits as actions against the government entity itself because the real party in interest is deemed to be the entity that promulgated the offending policies. Graham, 473 U.S. 159, 166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1984). Thus, in an official capacity suit a plaintiff can bring his claim against the state directly, provided that the state government had waived its sovereign immunity under the Eleventh Amendment with respect to such actions. Id. at 167; see also Brandon v. Holt, 469 U.S. 464, 83 L. Ed. 2d 878, 105 S. Ct. 873 (1985). Unlike states, local governments do not have the protection of sovereign immunity and are liable under § 1983 for those of its policies that cause constitutional torts. Monell 436 U.S. at 694. The offending policy does not have to be a formal or written law or procedure. Id. It might be an informal practice or policy set or adhered to by the local government's lawmakers, "or by those whose edicts or acts may fairly be said to represent official policy." Id. To determine liability a court must "identify those officials or governmental bodies who speak with final policymaking authority for the local governmental actor concerning the action alleged to have caused the particular constitutional or statutory violation at issue." McMillian v. Monroe County, Alabama, 520 U.S. 781, 117 S. Ct. 1734, 1736, 138 L. Ed. 2d 1 (1997) citing Jett v. Dallas Independent School Dist., 491 U.S. 701, 737, 105 L. Ed. 2d 598, 109 S. Ct. 2702 (1989). Those persons then might be held liable in their official capacity.

 It is well established that sheriffs in Illinois have, to some extent, the power to make policy with respect to law enforcement matters, including the treatment of persons in temporary custody and the investigation of certain crimes. Moy v. County of Cook, 159 Ill. 2d 519, 640 N.E.2d 926, 929, 203 Ill. Dec. 776 (1994) (holding that in certain situations the county has no authority to control the office of the sheriff as it would one of its employees or agents). What we must determine is whether in this capacity the sheriff is an arm of the state or acts as an independent constitutional officer. We conclude that in Illinois the sheriff is an independent constitutional officer at the county level and, as a result, is not protected by the Eleventh Amendment.

 Defendant relies heavily on McMillian v. Monroe County, Alabama, in which the Supreme Court considered the issue of whether Alabama sheriffs represented the State of Alabama or the sheriff's county when they were performing law enforcement activities such as criminal investigation. 117 S. Ct. at 1736. As in the instant case, the parties in McMillian agreed that the sheriff was in a policymaking position, but disagreed over whether he was an officer of the state (in which case he might have been immune from suit) or an officer of the county when acting in a law enforcement capacity. Id. In ruling that the sheriffs were state officers, the Court made several observations. First, it emphasized that the determination was issue-specific, i.e. the fact that the sheriffs were state officers for law enforcement purposes did not mean that they might not be considered county officers for another purpose. Id. at 1737. Second, it ruled that the determination was dependent on an analysis of state law, particularly "the definition of the official's functions" as defined by the state. Id. The Court also observed that "States have wide authority to set up their state and local governments as they wish," and consequently there could be no uniform national characterization for all sheriffs. Id at 1741.

 The Court then examined several different aspects of the Alabama constitution, court decisions and codes before concluding that the sheriffs were state officers. With respect to the state's constitution and the judicial opinions on the topic, the Court observed that: 1) Before certiorari was granted the Eleventh Circuit had ruled that the sheriff was not a policymaker for the county and considerable deference was to be given to that court's more extensive familiarity with Alabama law; 2) The Alabama constitution states that the sheriffs are part of the state executive department; 3) As originally written the Alabama constitution did not contain this classification and had been deliberately altered by amendment to so provide in 1875; 4) In 1901 the constitution was amended to provide that the governor could order the impeachment of the sheriff and that the sheriff could then be tried for neglect of his duties; 5) This provision on impeachment also applies to state judges and state legal officers (but apparently not county officials); 6) "Critically," the Alabama Supreme Court had interpreted the above provisions and unequivocally concluded that sheriffs were state officers and tort claims levied against them were consequently suits against the state; 7) That court had also ruled that Alabama counties were not liable for the sheriff's acts under a theory of respondeat superior and that sheriffs were absolutely immune from liability based on their official actions. Id. at 1736-39. The Supreme Court found that although the Alabama code was less definitive on the subject, there were certain provisions that supported its interpretation: 1) The sheriffs were required to attend upon and serve orders of the state courts, including those not within the sheriff's own county; 2) State judges had the power to order sheriffs to act, and the presiding judge had a general power of supervision over sheriffs, as with other state employees; 3) Importantly, the sheriffs had complete authority to enforce the state criminal law in their counties while counties were given no law enforcement power; 4) The sheriff had the duty to report crime to the state district attorney, not the county commissioner, and the county commissioner had no power over the manner in which the sheriff pursued his law enforcement objectives, while the governor and attorney general did have that power; and 5) The sheriff enforces state law. *fn1" Id. at 1739. Finally, the Supreme Court observed that the following factors were not sufficient to overcome their determination that sheriffs were truly state officers: 1) The sheriff's salary was paid by the county treasury (because this did not indicate any level of control); 2) The county was bound to provide the sheriff's equipment; 3) The sheriff's jurisdiction was limited to the county borders; 4) The sheriff was locally elected. Id. at 1740. For all these reasons the Supreme Court concluded that the sheriff in McMillian was immune as a state officer.

 Defendant insists that McMillian controls here and requires us to conclude that the DuPage County sheriff is a state officer who falls within the Eleventh Amendment. We disagree. Although the Supreme Court's analysis is relevant in determining whether the sheriff acts on behalf of the state, it takes us no farther. For the reasons stated below we find that the sheriff is not a state officer. He is an independent constitutional officer who does not act on behalf of the state. Several factors, some drawn from McMillian, lead us to this conclusion.

 Although there is obviously no lower court opinion in this case, the Seventh Circuit has twice considered whether Illinois counties are liable under § 1983 for the sheriff's actions and twice concluded that the county was not liable. See Ryan v. County of DuPage, 45 F.3d 1090, 1092 (7th Cir. 1995) (holding that the county was properly dismissed from a § 1983 claim because the county was not responsible for the sheriff's employees' alleged conduct); Thompson v. Duke, 882 F.2d 1180, 1187 (7th Cir. 1989) (holding that the plaintiff could not bring a § 1983 action against the county for the policies, practices and customs of the county's sheriff with respect to the operation of the county jail). Neither Ryan nor Thompson, however, employed an analysis as extensive as the Supreme Court has since determined is necessary in McMillian. Nor, in fact, is either case truly on point. In Thompson, the Seventh Circuit ruled that Cook County could not be held responsible for the policies governing the operation of the Cook County Jail and the Cook County Department of Corrections that allegedly resulted in a violation of the plaintiff's constitutional rights, because under Illinois law the "sheriff is an ...

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