The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge
MEMORANDUM OPINION AND ORDER
All defendants in this action--Chicago State University ("University") and its President Elnora Daniel, its Chief of Police William Shaw and its General Counsel Nancy Hall-Walker (the latter three are collectively referred to here as "Individual Defendants")--have filed a Motion To Dismiss ("Motion"), under the auspices of Fed. R. Civ. P. ("Rules") 12(b)(1) and 12(b)(6), the Complaint brought against them by Geoffrey Bassett ("Bassett"). Although the Motion has been noticed up for presentment on August 20, many of the issues that it poses tread well-worn legal paths. Hence this memorandum opinion and order is issued sua sponte to resolve some of those issues and to make others more susceptible to informed discussion at the August 20 presentment date.*fn1
First, University correctly asserts that it is not a suable entity (Motion Part C). That flaw might be cured by replacing University's name with "Board of Trustees of Chicago State University" (referred to here as the "Board"), but University rightly says that would do no good because, as an arm of the State of Illinois, the Board is entitled to the benefit of its sovereign immunity (see, e.g., Cannon v. Univ. of Health Sciences/The Chicago Med. Sch., 710 F.2d 351, 357 (7th Cir. 1983)).
Moreover, it is of course well settled that the state is not (and hence none of its constituent entities is) a "person" suable under 42 U.S.C. §1983 ("Section 1983"), which constitutes the gravamen of Bassett's federal-question contentions (Will v. Mich. Dep't of State Police, 491 U.S. 58 (1989)). Hence University and Board are out of the lawsuit as to any federal-question claims (more on Bassett's state law claims later).
Next, Individual Defendants invoke Kolar v. County of Sangamon, 756 F.2d 564, 568 (7th Cir. 1985) to assert that they are sued in their official and not their individual capacities (Motion Part D). But in candor Kolar--when read literally, as defendants would have this Court do--was really not good law when it was written. And lest that be viewed as merely this Court's opinion, not many years later the author of the Kolar opinion expressly disavowed that reading in Hill v. Shelander, 924 F.2d 1370 (7th Cir. 1991).*fn2 Although other aspects of the Hill opinion could be quoted at greater length, the following passages (id. at 1373) explain the reason for retreating from the literal reading of Kolar that has been stressed by the Motion:
The dissent attempts to turn our decision in Kolar against us, accusing its author (who also writes here for the Court) of jurisprudential inconsistency. The dissent siphons from Kolar the following rule--that a §1983 action that fails to designate the defendant in his official or individual capacity shall be presumed to be against him in his official capacity. As support for this position, the dissent points to the fact that Hill's pro se complaint names "Sgt. Shelander" as the defendant. For this reason, then, the dissent believes that the suit, without further clarification, must be construed as an official capacity suit. The dissent's interpretation of the complaint places the plaintiff in the chokehold of restrictive, overly technical pleading requirements.
The point is not that an official capacity suit is to be presumed any time that the complaint fails to explicate clearly the capacity in which the defendant is to be sued. On the contrary, Kolar stands for the proposition that an official capacity suit will be presumed when the indicia of an official policy or custom are present in the complaint.
And the same Shepardizing procedure referred to in n.2, neglected by defense counsel, would also have led counsel to Miller v. Smith, 220 F.3d 491, 494 (7th Cir. 2000), with its further explanation of why Kolar is not at all controlling authority in this area:
Hill v. Shelander, 924 F.2d 1370 (7th Cir.1991), a case neither party discusses, is instructive. In Hill, we said Kolar did not contain a rigid rule that a §1983 plaintiff who fails to designate whether a defendant is being sued in her official or individual capacity shall be presumed to be bringing the action against the defendant in her official capacity. See 924 F.2d at 1373. Instead, we explained that in Kolar we opted to treat the suit as against the defendant in his official capacity partly because the complaint referred to him by his official title, but more importantly because the suit itself challenged an official policy or custom.
Id. By contrast, in Hill we found that the suit was properly construed as against the defendant in his individual capacity because he sought punitive damages--a remedy only available in an individual capacity suit--and because "the unconstitutional conduct alleged involve[d][the defendant's] individual actions and nowhere allude[d] to an official policy or custom." Id. at 1374. We then spelled out a new regime for §1983 claims that do not specify the capacity in which the defendant has been sued: Where the plaintiff seeks injunctive relief from official policies or customs, the defendant has been sued in her official capacity; where the plaintiff alleges tortious conduct of an individual acting under color of state law, the defendant has been sued in her individual capacity. Id. at 1373-1374.
And the stance announced in Hill and reconfirmed in Miller makes eminently good sense. After all, to bring Section 1983 into play against an individual at all, a plaintiff must identify that individual as a state actor--as a "person." That is naturally most often done by specifying the official capacity that the individual defendant occupies. So to regard the specifications in Bassett's Complaint as to the positions held by Individual Defendants as connoting an official-capacity lawsuit would clearly constitute impermissible overkill.
In light of the post-Kolar caselaw, any arguable doubt on that score is clearly be dispelled by such individualized allegations as those set out in Complaint ¶¶20 and 25, coupled with the allegations that collectivize "defendants" when speaking of actions attributable to Individual Defendants. Moreover, the Motion's reference to Ky. v. Graham, 473 U.S. 159, 165 (1985)(Motion at 4) ignores the real thrust of that opinion: that official-capacity allegations against individuals are pure surplusage when the state itself is named as a defendant. Thus the very joinder of a state entity with Individual Defendants as targets of the Complaint tends to reverse the simplistic presumption as announced in Kolar but withdrawn in later cases.
In sum, this Court will view the Complaint as targeting Individual Defendants in their individual (not their official) capacities. This opinion will analyze the remainder of the current Motion from that perspective.
That dispatches the position advanced in Motion Part E as well, for the Eleventh Amendment does not insulate individual state actors against monetary damage claims under Section 1983. Simply put, although the Board enjoys ...