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October 6, 2004.

EARL HAMPTON, Plaintiff,

The opinion of the court was delivered by: JAMES MORAN, Senior District Judge


Plaintiff Earl Hampton filed a six-count complaint against defendants, who he alleges are collectively responsible for his false arrest and wrongful conviction for a 1989 murder. Defendants Cook Count State's Attorney (State's Attorney) and assistant state's attorney Robert M. Podlesak (Podlesak), contend that this court lacks subject matter jurisdiction and that the complaint should be dismissed against them pursuant to Federal Rule of Civil Procedure 12(b)(1). For the following reasons, defendants' motion is granted.


  In considering defendants' motion to dismiss for lack of subject matter jurisdiction, we accept all well-pleaded allegations as true and make all reasonable inferences in plaintiff's favor. United Transp. Union v. Gateway W. Ry., 78 F.3d 1208, 1210 (7th Cir. 1996). We construct the following factual background from plaintiff's complaint.

  On August 2, 1989, Carol Thomas was robbed and murdered, and, sometime later that day, Chicago Police Department (CPD) detectives decided that plaintiff was a suspect. Detectives then displayed photographs of plaintiff and others to witnesses; however, no witness positively identified plaintiff. Still, on the night of August 2, 1989, plaintiff was arrested without a warrant and transported to Area One police headquarters, where he was interviewed by defendant Podlesak. Plaintiff alleges that Podlesak had also interviewed witnesses prior to his arrest. Also, he was placed in a number of lineups and it was suggested to witnesses Mary Austin and Janet Caldwell, by several detectives, that plaintiff was the offender. After those improper suggestions, Caldwell and Austin identified plaintiff. Plaintiff further alleges that Podlesak "knew or should have known" that these lineups were "suggestive and tainted."

  Subsequent to being identified, plaintiff was charged with murder. He contends that after he was charged with murder, detectives discovered that another person, Meltara Thompson, confessed to robbing and shooting Thomas.

  After a bench trial in February 1991, plaintiff was found guilty of murder. He was then sentenced to serve 24 years in prison. Apparently the handling of evidence in this case was both inept and improper — plaintiff claims that exculpatory evidence was withheld during trial and that after plaintiff's conviction and failed appeal (see People v. Hampton, 249 Ill. App. 3d 329, 188 Ill. Dec. 353, 618 N.E.2d 923 (Ill.App. 1st Dist. 1993)) that evidence was destroyed by members of the CPD. After the apparent destruction of that evidence, plaintiff filed a petition in the Northern District of Illinois for a writ of habeas corpus. The petition was denied, but the court of appeals vacated the district court's decision. See Hampton v. Roth, 221 F.3d 1338 (table), 2000 U.S.App.LEXIS 24294, 2000 WL 975173 (7th Cir. 2000). On remand, the district court granted plaintiff's petition and remanded the case to the Circuit Court of Cook County. See United States ex rel. Hampton v. Roth, 2000 U.S. Dist. LEXIS 14093, 2000 WL 1377097 (N.D. Ill. 2000). When released from prison, plaintiff had been incarcerated for over 11 years. The state then retried plaintiff in the circuit court and he was found not guilty of murder and armed robbery.

  Plaintiff's six-count complaint includes allegations against CPD members, Podlesak and, by extension, the City of Chicago (City) and the State's Attorney. Counts I, II and III are brought pursuant to 42 U.S.C. § 1983 and allege civil rights violations. In Count I plaintiff asserts that CPD detectives falsely arrested him. In Count II he states that CPD detectives and Podlesak violated his right to a fair trial. And in Count III he claims a conspiracy existed between CPD detectives and Podlesak. The next three counts are based on state law. Count IV is a malicious prosecution claim against detectives, the City, Podlesak, and the State's Attorney. Count IV(A),*fn1 filed against the same defendants as Count IV, alleges intentional infliction of emotional distress (IIED). Count V is a state law claim for respondeat superior.

  Only defendants State's Attorney and Podlesak move to dismiss the complaint. The State's Attorney argues that the Eleventh Amendment shields him from plaintiff's claims, and Podlesak contends that sovereign immunity bars plaintiff's state law claims and that he is absolutely immune from suit for his prosecutorial acts.


  Plaintiff concedes that the Eleventh Amendment bars his claims against the State's Attorney, and therefore Counts IV, IV(A), and V are dismissed with respect to the State's Attorney. Addressing Podlesak's claims, however, involves considerably more effort. Sovereign Immunity

  Podlesak argues that this court lacks subject matter jurisdiction over the state law claims in Counts IV and IV(A) because he is, as an assistant state's attorney, a state official, and Illinois law requires that tort claims against a state be brought in the Illinois Court of Claims.*fn2 In response, plaintiff contends that the Court of Claims does not have exclusive jurisdiction because he alleged that Podlesak acted in violation of state law and in excess of his authority.

  Because Podlesak raises the doctrine of sovereign immunity in the context of the state law claims, state immunity rules apply. Benning v. Bd. Of Regents of Regency Universities, 928 F.2d 775, 779 (7th Cir. 1991). The Illinois Constitution abolishes sovereign immunity but also gives the legislature the authority to reinstate it. The legislature exercised that authority when it enacted the State Lawsuit Immunity Act, which provides that the State may be a defendant only in circumstances enumerated in the Court of Claims Act. 745 ILCS 5/1. The Court of Claims Act establishes the Illinois Court of Claims as the exclusive forum for "[a]ll claims against the State for damages in cases sounding in tort." 705 ILCS 505/8(d). See Jinkins v. Lee, 209 Ill.2d 320, 807 N.E.2d 411, 417, 282 Ill. Dec. 787 (Ill. 2004). The critical issue is thus whether Counts IV and IV(A) are actually against the State. If they are, then the Court of Claims has exclusive jurisdiction.

  Illinois courts have often taken "divergent approaches to the sovereign immunity issue." Chavez v. Illinois State Police, 27 F. Supp. 2d 1053, 1081-83 (N.D. Ill. 1998). In Healy v. Vaupel, Ill.2d 295, 549 N.E.2d 1240, 1247, 140 Ill. Dec. 368 (Ill. 1990), the court reasoned that a suit is against the state when "there are (1) no allegations that an agent or employee of the State acted beyond the scope of his authority through wrongful acts; (2) the duty alleged to have been breached was not owed to the public generally independent of the fact of State employment; and (3) where the complained-of actions involve matters ordinarily within the employee's normal and official functions of the State, then the cause of action is only nominally against the employee." Id. (quoting Robb v. Sutton, 147 Ill. App. 3d 710, 498 N.E.2d 267, 272, 101 Ill. Dec. 85 (Ill.App. 4th Dist. 1986). When all three Healy factors exist it is as if the action is brought against the state directly and sovereign immunity applies. Janes by First Nat'l Bank v. Albergo, 254 Ill. App. 3d 951, 626 N.E.2d 1127, 1132, 193 Ill. Dec. 576 (Ill.App. 1st Dist. 1993). Two years after Healy, in Currie v. Lao, 148 Ill.2d 151, 592 N.E.2d 977, 980, 170 Ill. Dec. 297 (Ill. 1992), the court stated that the "proper inquiry is to analyze the source of the duty the employee is charged with breaching in committing the allegedly negligent act." Under that standard, sovereign immunity applies if the state employee breached a duty that existed solely because he was an employee of the state. In contrast, sovereign immunity does not apply if the state employee breached a duty that existed independent of his employment. Id. In considering sovereign immunity issues, the Seventh Circuit has generally applied Currie's source of duty test. See Magdziak v. Byrd, 96 F.3d 1045, 1048-49 (7th Cir. 1996); Turner v. Miller, 301 F.3d 599, 602 (7th Cir. 2002). But in Richman v. Sheahan, 270 F.3d 430, 441-42 (7th Cir. 2001), the court relied on the three-part Healy test. We believe that the district court in Chavez took a reasonable approach when it harmonized Currie and Healy by viewing the source-of-duty test ...

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