1-97-0772
SECOND DIVISION
JULY 28, 1998
MARIA ALENCASTRO, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellant, ) COOK COUNTY
)
v. )
MICHAEL F. SHEAHAN, Indiv. and )
in his official capacity as ) No. 95-L-14466
Cook County Sheriff, )
Defendant-Appellee )
(Citibank, F.S.B., and Two Unknown )
Deputies, ) THE HONORABLE
) Joseph N. Casciato,
Defendants). ) JUDGE PRESIDING.
MODIFIED UPON DENIAL OF REHEARING
JUSTICE COUSINS delivered the opinion of the court:
Plaintiff, Maria Alencastro, filed suit against defendant,
Sheriff Michael Sheahan, two of defendant's deputies, and
Citibank, F.S.B. (Citibank), for illegally evicting plaintiff
from her apartment. The trial court dismissed plaintiff's civil
rights claims against defendant Sheahan based on sovereign
immunity and dismissed plaintiff's state negligence claim based
on lack of jurisdiction. On appeal, plaintiff argues that the
trial court erred by: (1) determining that defendant acted as an
arm of the state when enforcing the court order for possession
against plaintiff; (2) dismissing plaintiff's civil rights claim
against defendant in his individual capacity; and (3) finding
that the trial court lacked jurisdiction to adjudicate
plaintiff's negligence claim.
BACKGROUND
Plaintiff moved into an apartment in Chicago, Illinois, in
April 1991, under an oral month-to-month lease with the owner of
the premises, Jose Vega. On October 27, 1993, Citibank initiated
an action in the circuit court of Cook County to foreclose its
mortgage on the premises. Plaintiff was not made a party to the
foreclosure action. On April 14, 1994, an order of default and a
judgment of foreclosure were entered in favor of Citibank. On
August 4, 1994, the trial court entered an order prepared by
Citibank approving the sheriff's report of sale and granting
possession of the subject real property to Citibank. The order
stated:
"[T]he Sheriff of Cook County is ordered to evict the
defendants, Jose Vega, a/k/a Jose Luis Vega, Sr., Laura
Vega, a/k/a Laura E. Vega, Jose Luis Vega, Jr., and
Cosmopolitan National Bank of Chicago, as Trustee under
Trust Agreement dated January 2, 1989[,] *** from the
real estate and premises commonly known as 2405 South
Hamlin, Chicago, Illinois, and the Sheriff of Cook
County is directed to place Citibank, F.S.B. *** in
possession of said real estate and premises after the
thirtieth day from the entry of this Order confirming
Sheriff's Sale, without notice to any party, further
order of the Court or resort to proceedings under any
statute."
Plaintiff was never notified about the foreclosure
proceedings or the sale of the premises. Nevertheless, on
October 6, 1994, a Citibank representative and two deputies
visited the premises to evict plaintiff. Although plaintiff was
not specifically named in the foreclosure action or in the
resulting order for possession, and, after the eviction
commenced, plaintiff's sister informed the deputies that the
apartment was occupied by plaintiff, the deputies executed the
order and evicted plaintiff.
Plaintiff subsequently filed this action, which includes two
counts against defendant Sheahan. Count IV of plaintiff's
complaint alleges that defendant is liable in both his official
and individual capacities under 42 U.S.C §1983 (1994) for
maintaining a policy or procedure that allowed persons not named
in a court order for possession to be summarily evicted. Count
II of plaintiff's complaint alleges that defendant is statutorily
liable for the negligence of his deputies under section 3-6016 of
the Illinois Counties Code (55 ILCS 5/3-6016 (West 1992)).
The trial court dismissed count IV, reasoning that defendant
acted as an arm of the state in executing the court order for
possession, thus rendering him protected by sovereign immunity.
The trial court also dismissed plaintiff's count II for lack of
jurisdiction, based on the court's determination that defendant's
status as a state actor rendered him amenable to suit only in the
Illinois Court of Claims. In January 1997, the trial court ruled
that the dismissals of counts II and IV were final and appealable
pursuant to Supreme Court Rule 304(a). 134 Ill. 2d R. 304(a).
Plaintiff filed a timely appeal from those two final judgments.
We affirm.
ANALYSIS
Plaintiff appeals the trial court's dismissal of counts II
and IV pursuant to defendant's section 2-619 motion to dismiss.
735 ILCS 5/2-619 (West 1992). Appellate review of a section 2-
619 dismissal is de novo, as it is limited to consideration of
legal questions presented by pleadings and is, therefore,
independent of the trial court's reasoning. Epstein v. Chicago
Board of Education, 178 Ill. 2d 370, 383 (1997); O'Hare Truck
Service, Inc. v. Illinois State Police, 284 Ill. App. 3d 941,
945, 673 N.E.2d 731, 734 (1996).
Plaintiff first contends that the trial court erred by
dismissing count IV of her complaint. Specifically, plaintiff
argues that the trial court erroneously recognized defendant as
having sovereign immunity by concluding that defendant was a
state actor for purposes of executing a state court order for
possession. Alternatively, plaintiff contends that defendant
acted beyond the scope of his authority by evicting a party not
named in the court order, thus extinguishing any immunity
defendant may have enjoyed.
Plaintiff correctly states that the crux of the issue of
immunity with respect to her "official capacity" section 1983
claim is whether defendant is to be recognized as a state actor
when executing court orders for possession. The distinction
between defendant's status as a county agent, as opposed to a
state agent, is critical, since county officials are not given
the same immunity from lawsuits that is conferred upon state
officials. Mt. Healthy City School District Board of Education v.
Doyle, 429 U.S. 274, 280, 50 L. Ed. 2d 471, 479, 97 S. Ct. 568,
572 (1977) (state entities' immunity from prosecution unavailable
to counties and similar municipal entities). The basis for this
rule lies in the well-recognized concept that official acts of
state officers are, in effect, acts of the state. Senn Park
Nursing Center v. Miller, 104 Ill. 2d 169, 188 (1984). Of
particular significance is the Illinois Supreme Court ruling that
the "determination of whether an action is in fact a suit against
the State turns upon an analysis of the issues involved and the
relief sought, rather than the formal designation of the
parties." Noyola v. Board of Education, 179 Ill. 2d 121, 134-35
(1997); Currie v. Lao, 148 Ill. 2d 151, 158 (1992), citing Healy
v. Vaupel, 133 Ill. 2d 295, 308 (1990).
In this matter, we find Scott v. O'Grady, 975 F.2d 366 (7th
Cir. 1992), cert. denied, 508 U.S. 942, 124 L. Ed. 2d 643, 113 S.
Ct. 2421 (1993), to be instructive. In Scott, the plaintiff
executed a lease agreement with the owner of an apartment
building. The plaintiff was unaware that the property was
subject to a foreclosure action against the owner at that time.
Soon thereafter, judgment for foreclosure was entered and the
property was sold. The new owner obtained a writ of assistance
pursuant to the Illinois Mortgage Foreclosure Law (735 ILCS 5/15-
1101 et seq. (West 1992)), directing the sheriff of Cook County
to evict all individuals on the property. The plaintiff was not
privy to these actions and continued to pay rent to the initial
owner. The plaintiff subsequently filed suit, alleging that his
due process rights were violated as a result of not being given
notice of the eviction proceedings and not being named in the
writ of assistance.
The Court of Appeals in Scott held that the "county sheriff
act[ed] as an arm of the Illinois state judicial system in
executing Writs of Assistance and other state court orders."
Scott, 975 F.2d at 371. The court reasoned that the sheriff had
a statutory duty to execute such orders decreed by state courts
and that failure to execute them would have subjected the sheriff
to contempt proceedings and liability for damages. Scott, 975
F.2d at 371. The court in Scott concluded that a sheriff's
nondiscretionary, statutory duty to execute such state-court
orders militates heavily in favor of recognizing that a sheriff
acts as a state official in such a capacity. Scott, 975 F.2d at
371.
We agree with the Court of Appeals in Scott. In the present
case, it is undisputed that defendant's deputies were carrying
out a valid court order for possession. Considering that
defendant was dutybound to execute the direction of the court, we
determine that defendant was a state actor in the instant case.
Plaintiff, nevertheless, argues that the trial court in the case
at bar erroneously assumed that Scott sets out a per se rule--
i.e., that a sheriff enforcing a state court order is always a
state actor. We find no evidence in the record to support
plaintiff's contention that the trial court interpreted Scott in
such a manner. Plaintiff also argues that the United States
Supreme Court in McMillian v. Monroe County, Alabama, 520 U.S.
___, 138 L. Ed. 2d 1, 117 S. Ct. 1734 (1997), recommended a more
searching analysis when determining a sheriff's immunity status.
The McMillian test for deciding whether an official is a
state or county actor in a specific instance requires a court to
determine, based upon state law, whether the official is a final
policymaker for the local government on the issue in question.
McMillian, 520 U.S. at ___, 138 L. Ed. 2d at 7-8, 117 S. Ct. at
1736-37, citing Jett v. Dallas Independent School District, 491
U.S. 701, 737, 105 L. Ed. 2d 598, 627-28, 109 S. Ct. 2702, 2723-
24 (1989). In McMillian, the plaintiff sued a county sheriff
under 42 U.S.C. §1983 after the plaintiff's capital murder
conviction was reversed on the ground that the state, via the
sheriff, suppressed exculpatory evidence. The United States
Supreme Court held that, when an Alabama sheriff executes his law
enforcement duties in the course of a criminal investigation, he
represents the State of Alabama, not the county in which he acts.
McMillian, 520 U.S. at ___, 138 L. Ed. 2d at 12, 117 S. Ct. at
1740.
In our view, McMillian is inapposite to the instant case.
McMillian involved a sheriff who allegedly violated the
plaintiff's constitutional rights by coercing a witness into
providing false testimony and by suppressing exculpatory
evidence, resulting in the plaintiff's murder conviction and
death sentence. However, McMillian in no way applied its test to
a sheriff's role in the civil realm, let alone the areas of
mortgage foreclosure and eviction proceedings. Moreover, were we
to apply the test delineated in McMillian to the present case, we
would still conclude that defendant was a state actor in
executing the court order for possession. Our state law provides
that "[s]heriffs shall serve and execute *** all warrants,
process, orders and judgments of every description that may be
legally directed or delivered to them." 55 ILCS 5/3-6019 (West
1992). Illinois law further states:
"[D]isobedience of any sheriff to perform the command
of any warrant, process, order or judgment *** shall be
deemed a contempt of the court that issued the same,
and may be punished accordingly; and he or she shall be
liable to the party aggrieved for all damages
occasioned thereby." 55 ILCS 5/3-6020 (West 1992).
Based upon the test set forth in McMillian, we believe that
Illinois state law and its treatment of sheriffs in the execution
of their duties with respect to eviction proceedings amply
supports the conclusion that defendant lacked final policymaking
power in this area. Consequently, we hold that the sheriff acts
as an arm of the State of Illinois when executing court orders
for possession.
Before departing from this issue, we note that plaintiff
claims to find further support from the case of Rembert v.
Sheahan, 62 F.3d 937 (7th Cir. 1995). Plaintiff, however, relies
upon a footnote in Rembert, which states in relevant part:
"The Sheriff is an integral part of the State machinery
that allows purchasers of mortgaged real estate to take
possession of that real estate. He cannot credibly
take the position that he has no duty to ensure that
proper procedures have been followed prior to evicting
tenants." Rembert, 62 F.3d at 941 n.1.
Although defendant's office clearly plays a role in the eviction
process, that is not to say that defendant exercises final
policymaking authority over that process. Also, while the
Rembert litigation ultimately resulted in the promulgation of a
new policy stating that the sheriff essentially may only evict
individuals personally named in orders for possession, that new
policy became effective approximately two years after defendant
executed the instant order for possession against plaintiff. See
Rembert v. Sheahan, No. 92-C-67 (N.D. Ill. November 3, 1995).
Additionally, we note that, in granting the sheriff's motion for
summary judgment as to damages, the plaintiffs in Rembert were
denied any retroactive relief (due to the sheriff's immunity) and
ultimately obtained only the aforementioned prospective
injunctive relief (which is not subject to immunity). See Papasan
v. Allain, 478 U.S. 265, 277-78, 92 L. Ed. 2d 209, 226-27, 106 S.
Ct. 2932, 2940 (1986) ("official capacity" suit for prospective
injunctive relief is an exception to the bar against suits
against state actors); In re R.V., 288 Ill. App. 3d 860, 867, 681
N.E.2d 660, 666 (1997).
Nevertheless, an additional inquiry remains: whether
plaintiff may maintain her section 1983 action against defendant
in state court, despite defendant's status as a state actor.
Although the eleventh amendment is inapplicable to state-court
actions (Maine v. Thiboutot, 448 U.S. 1, 9 n.7, 65 L. Ed. 2d 555,
562 n.7, 100 S. Ct. 2502, 2507 n.7 (1980) (no eleventh amendment
question present where action is brought in state court, since
the amendment, by its terms, restrains only federal judicial
power)), it is a major factor considered by the United States
Supreme Court in determining section 1983 cases brought in state
courts. On this issue, an instructive case is Will v. Michigan
Department of State Police, 491 U.S. 58, 105 L. Ed. 2d 45, 109 S.
Ct. 2304 (1989). In that case, the petitioner filed section 1983
suits in the Michigan state court alleging that the Department of
State Police and the Director of State Police had improperly
denied petitioner a promotion. The Supreme Court held that, in
light of the states' historical immunity under the eleventh
amendment, neither states nor state officials acting in their
official capacities are "persons" within the meaning of section
1983. Will, 491 U.S. at 71, 105 L. Ed. 2d at 58, 109 S. Ct. at
2312. Significantly, the Court also stated:
"Given that a principal purpose behind the enactment of
[section] 1983 was to provide a federal forum for civil
rights claims, and that Congress did not provide such a
federal forum for civil rights claims against States,
we cannot accept petitioner's argument that Congress
intended nevertheless to create a cause of action
against States to be brought in state courts, which are
precisely the courts Congress sought to allow civil
rights claimants to avoid through [section] 1983."
Will, 491 U.S. at 66, 105 L. Ed. 2d at 55, 109 S. Ct.
at 2310.
In our opinion, Scott and Will are dispositive of this
issue. Consequently, we conclude that defendant's actions as an
official on behalf of the Illinois judiciary preclude plaintiff's
"official capacity" section 1983 claim in state court.
Plaintiff argues in the alternative that, assuming defendant
acts as an arm of the state when executing court orders for
possession, defendant nevertheless acted beyond the scope of his
authority with respect to the instant court order. Plaintiff
maintains that defendant's acts in excess of his authority
eliminated defendant's sovereign immunity and exposed him to
section 1983 liability.
Generally, while official acts of state officers are
considered acts of the state itself, acts that are illegal,
unconstitutional, or performed under authority that the state
official does not have render that official personally amenable
to suit. Senn Park Nursing Center v. Miller, 104 Ill. 2d 169, 188
(1984). In such a case, a plaintiff may bring suit against the
officer in his or her individual capacity, as the action is no
longer considered an action against the State of Illinois.
Miller, 104 Ill. 2d at 188.
In the case sub judice, plaintiff contends that defendant
exceeded his authority by evicting a party not named in the court
order for possession. Plaintiff principally relies upon the
following three cases in support of her position: Ruehman v.
Sheahan, 34 F.3d 525 (7th Cir. 1994) (in designing and
implementing computer system for tracking active arrest warrants,
sheriff was not acting as arm of the state where sheriff failed
to purge quashed and recalled warrants, causing plaintiffs to be
improperly arrested); Jackson v. Doria, 851 F. Supp. 288 (N.D.
Ill. 1994) (sovereign immunity unavailable to sheriff for failing
to institute procedure that would have prevented plaintiff from
being repeatedly arrested pursuant to a warrant issued against
another person); and Hvorcik v. Sheahan, 847 F. Supp. 1414 (N.D.
Ill. 1994) (sheriff's failure to maintain accurate records of
traffic warrants, resulting in unlawful arrests and detention of
plaintiffs on recalled warrants, rendered sheriff's absolute
immunity inoperative).
In our view, the above cases are distinguishable, because
they all involve actions by the sheriff concerning the execution
of discretionary or nonministerial policies or procedures that
the sheriff himself instituted in his role as an arm of the
county. Contrarily, in the case at bar, defendant was charged
with the nondiscretionary duty of executing a court order.
Considering that the language of the instant court order for
possession directed defendant to "place Citibank *** in
possession of said real estate and premises *** without notice to
any party, further order of the Court or resort to proceedings
under any statute," and that the validity of that order is
uncontested, we are not persuaded that defendant acted beyond the
scope of his authority.
We also conclude that plaintiff's identical section 1983
claim against defendant in his individual capacity was properly
dismissed. As a rule, an individual cannot be held liable in a
section 1983 action absent a finding that he or she caused or
participated in the alleged constitutional violation. Wolf-Lillie
v. Sonquist, 699 F.2d 864, 869 (7th Cir. 1983). Additionally,
liability cannot be imposed upon a supervisory official without
establishing that the official was directly responsible for the
improper activity. Rizzo v. Goode, 423 U.S. 362, 373-77, 46 L.
Ed. 2d 561, 571-73, 96 S. Ct. 598, 605-07 (1976). Based upon the
foregoing and the fact that plaintiff has failed to show that
defendant was in any way directly involved in the instant
eviction incident, we believe that plaintiff's "individual
capacity" section 1983 claim lacks merit.
Plaintiff further contends that Rembert is instructive as to
plaintiff's position that defendant Sheahan violated the Illinois
Mortgage Foreclosure Law by evicting a party not named in the
order for possession. See 735 ILCS 5/15-1508(g) (West 1994). We
disagree. Significantly, throughout the trial court proceedings
and in plaintiff's opening brief on appeal, plaintiff's
contentions with respect to specific violations of the Illinois
Mortgage Foreclosure Law have been directed at the actions of
defendant Citibank, not defendant Sheahan. Indeed, plaintiff's
consistent arguments that it was Citibank that actually violated
the Illinois Mortgage Foreclosure Law and that Citibank could
have avoided such violation by filing a supplemental petition for
notice thereunder belie plaintiff's later contention that
Sheahan's actions violated the Illinois Mortgage Foreclosure Law.
Finally, plaintiff contends that the trial court erred by
dismissing her statutory negligence claim against defendant
pursuant to section 3-6016 of the Illinois Counties Code. 55 ILCS
5/3-6016 (West 1992). That statute provides that the "sheriff
shall be liable for any neglect or omission of the duties of his
or her office, when occasioned by a deputy or auxiliary deputy,
in the same manner as for his or her own personal neglect or
omission." 55 ILCS 5/3-6016 (West 1992).
The relevant approach regarding a claim of negligence
against a state agent is to examine the source of the duty the
agent is alleged to have breached. Currie v. Lao, 148 Ill. 2d
151, 159 (1992). When negligence stems from the state actor's
breach of a duty imposed solely by his directives from the state,
immunity applies and bars the action in trial court. Swanigan v.
Smith, 294 Ill. App. 3d 263, 269, 689 N.E.2d 637, 641 (1998).
The basis for this rule lies in the statute enacted by the
Illinois General Assembly (745 ILCS 5/1 (West 1992)) declaring
that the state may not be made a defendant or a party in any
court except as set forth in the Court of Claims Act (705 ILCS
505/1 et seq. (West 1992)). The Court of Claims Act provides
that the Court of Claims:
"shall have exclusive jurisdiction to hear and
determine ***:
(a) All claims against the state founded upon any
law of the State of Illinois, or upon any regulation
thereunder by an executive or administrative officer or
agency ***." 705 ILCS 505/8 (West 1992).
Furthermore, this court stated in Swanigan, 294 Ill. App. 3d at
269, 689 N.E.2d at 641, and Boards of Education of School
Districts 67, 68, 69, 70, 71, 72, 73½, 74 & 219 v. Cronin, 54
Ill. App. 3d 584, 586, 370 N.E.2d 19, 21 (1977), that, when
judgment for a plaintiff may operate to control the state's
actions or subject the state to liability, an action brought
against a state agent in his or her individual capacity will be
deemed to be a claim against the state and, thus, must be brought
in the Court of Claims. See also Healy v. Vaupel, 133 Ill. 2d
295, 308 (1990); Miller, 104 Ill. 2d at 187, quoting Sass v.
Kramer, 72 Ill. 2d 485, 491-92 (1978) (rule against making state
a party to suit cannot be evaded by making action nominally one
against agents of state when the true claim lies against state
itself and when the state is the party vitally interested).
Thus, such claims against the state brought in the circuit court
are barred by operation of the Court of Claims Act.
Based upon our view that the alleged negligence of the
instant defendant originated from his execution of duties imposed
by the state, we conclude that plaintiff's claim remains a claim
against the State of Illinois. A consequence of this decision is
that, while plaintiff's claim is not precluded simply by virtue
of defendant being cloaked with immunity, plaintiff may only
bring her section 3-6016 claim in the Illinois Court of Claims,
as it has exclusive jurisdiction to adjudicate actions against
the state or its officials acting on behalf of the state.
Accordingly, we affirm the decision of the circuit court.
Affirmed.
McNULTY, P.J., and RAKOWSKI, J., concur.