Scott v. O'Grady, 91-2443

Citation975 F.2d 366
Decision Date05 January 1993
Docket NumberNo. 91-2443,91-2443
PartiesWilliam SCOTT and Rosemary Scott, Plaintiffs-Appellants, v. James E. O'GRADY, Sheriff of Cook County, and Kelvin Branch, Deputy Sheriff of Cook County, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

Henry Rose and Lewis Check (argued), Loyola University Community Law Center, Chicago, Ill., for plaintiffs-appellants.

Jack O'Malley, State's Atty. of Cook County, Douglas B. Swill, Asst. State Atty. (argued), Office of the State's Atty. of Cook County, Chicago, Ill., for defendants-appellees.

Before POSNER and MANION, Circuit Judges, and VAN SICKLE, Senior District Judge. *

MANION, Circuit Judge.

William and Rosemary Scott rented two apartments in a building which was the subject of a foreclosure action and a judicial sale. The Commerce Mortgage Corporation bought the property at the judicial sale and, pursuant to the Illinois Mortgage Foreclosure Law, received a Writ of Assistance from the Circuit Court of Cook County directing the Cook County Sheriff to assist Commerce in obtaining possession of the property. Pursuant to this writ, Cook County Deputy Sheriff Kelvin Branch forcibly evicted the Scotts--throwing their belongings into the street. The Scotts filed this section 1983 action against Kelvin Branch and James E. O'Grady, the Sheriff of Cook County, in their official capacities. The district court dismissed the suit as barred by the Eleventh Amendment, Scott v. O'Grady, 760 F.Supp. 1288, 1292-93 (N.D.Ill.1991), and the Scotts appeal. We affirm.

I.

We review a grant of a motion to dismiss de novo, accepting as true all well-pleaded factual allegations and drawing inferences in favor of the plaintiff. Prince v. Rescorp Realty, 940 F.2d 1104, 1106 (7th Cir.1991). "However, we are not obliged to ignore any facts set forth in the complaint that undermine the plaintiff's claim or to assign any weight to unsupported conclusions of law." R.J.R. Services, Inc. v. Aetna Casualty and Surety Co., 895 F.2d 279, 281 (7th Cir.1989). As stated in the complaint, the facts are as follows:

On October 31, 1987, William Scott entered into a written, two-year lease with Larry Holder for the first floor and basement apartments in a building Holder owned at 449 West 61st Street, Chicago, Illinois; he paid Holder the first month's rent and a security deposit. Unbeknownst to the Scotts, the building was then the subject of a foreclosure action. In February 1986, twenty months earlier, the Commerce Mortgage Corporation had filed a mortgage foreclosure action against Holder. On November 10, 1987, the Circuit Court of Cook County entered a judgment for foreclosure in favor of Commerce and authorized judicial sale of the property. Commerce purchased the property at a sheriff's sale in January 1988, and the sale was approved by the Circuit Court. Meanwhile, the Scotts moved into the apartments and continued to pay monthly rent to Holder.

In July 1988, Commerce received a sheriff's deed to the property. On August 23, 1988, Commerce moved for and received from the Circuit Court of Cook County a "Writ of Assistance." The writ, issued pursuant to the Illinois Mortgage Foreclosure Law, Ill.Rev.Stat. ch. 110, § 15-101 et seq., directed the Sheriff of Cook County to:

[a]ccompany the plaintiff to the property located at 449 West 61st Street, Chicago, Illinois, 60621, and cause each and every person found in and upon said premises to be removed therefrom, together with each and every item of personal property belonging to said persons, and to use any and all such force as may be necessary to cause possession of the premises to be surrendered to the plaintiff and to insure that the plaintiff is able to take possession thereof and securing possession to the plaintiff.

The complaint alleges that Commerce knew, or should have known, that the Scotts were tenants in possession of the property. Nonetheless, Commerce did not name the Scotts in its motion for the writ, did not send them notice of the motion, and did not inform the Circuit Court that the Scotts were living at the property. The Scotts were not named in the Writ of Assistance and were never given a copy (or any other written notice) of the writ.

Pursuant to the Writ of Assistance, at approximately 8:00 a.m. on October 11, 1988, Cook County Deputy Sheriff Kelvin Branch and other employees of the Cook County Sheriff's office accompanied agents of Commerce Mortgage to 449 West 61st Street. When they arrived, William Scott informed Deputy Sheriff Branch that he had not been served with any written notice of a court proceeding affecting his tenancy. Commerce's agents then told Branch to immediately and forcibly evict the Scotts, and Branch did--throwing the Scotts' belongings into the street. As a result, many of the Scotts' personal belongings were damaged, destroyed or lost.

On October 4, 1990, the Scotts filed this section 1983 action against Branch and James E. O'Grady, the Sheriff of Cook County, in their official capacities, claiming that their participation in the forcible eviction deprived the Scotts of their property without due process of law in violation of the Fourteenth Amendment. 1 The complaint alleges that Sheriff O'Grady "has a policy and practice of evicting tenants pursuant to Writs of Assistance" and that "[s]aid policy and practice allowed deputy sheriffs of Cook County to evict a tenant in possession who was not named on the Writ of Assistance solely on the oral representation of the party or party's agent seeking to enforce the Writ that some form of advance notice of eviction had been given to the tenant in possession." The complaint asks for compensatory damages, punitive damages and an award of attorney's fees pursuant to 42 U.S.C. § 1988.

O'Grady and Branch filed a Rule 12(b)(6) motion to dismiss, claiming that the Scotts' suit is an action against the State of Illinois and is therefore barred by the Eleventh Amendment. O'Grady and Branch argued that, when they carried out the Writ of Assistance issued by the state court, they were effectively acting as state officers. The Scotts, relying on the Illinois Constitution and state statutes, responded that O'Grady and Branch are officers of Cook County, not the State. The district court agreed with the defendants and dismissed the complaint.

II.

The Eleventh Amendment to our Constitution states: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." U.S. Const. amend. XI. Although this language expressly encompasses only suits brought against a state by citizens of another state, the Eleventh Amendment has long been interpreted to also bar federal courts from exercising jurisdiction over actions against a state brought by her own citizens. Papasan v. Allian, 478 U.S. 265, 276, 106 S.Ct. 2932, 2939, 92 L.Ed.2d 209 (1986) (citing Hans v. Louisiana, 134 U.S. 1, 10 S.Ct. 504, 33 L.Ed. 842 (1890)). Eleventh Amendment issues arise whenever a private citizen files a federal lawsuit against a state, a state agency, or a state official--although the effect of the amendment differs depending on the category of defendant. Kroll v. Board of Trustees of the University of Illinois, 934 F.2d 904, 907 (7th Cir.), cert. denied, --- U.S. ----, 112 S.Ct. 377, 116 L.Ed.2d 329 (1991).

All suits against a state or its agencies are barred by the Eleventh Amendment unless the state consents to suit in federal court or Congress uses its powers under the Fourteenth Amendment to abrogate the state's Eleventh Amendment immunity. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238, 105 S.Ct. 3142, 3145, 87 L.Ed.2d 171 (1985); Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 908, 79 L.Ed.2d 67 (1984); Kroll, 934 F.2d at 907. Suits against state officials, however, are sometimes permissible. A suit against a state official in his personal capacity is not barred by the Eleventh Amendment--although the state official may be able to assert personal immunity defenses (i.e., qualified immunity) and a damage award may be executed only against the official's personal assets. Kentucky v. Graham, 473 U.S. 159, 165-67, 105 S.Ct. 3099, 3105-06, 87 L.Ed.2d 114 (1985); Kroll, 934 F.2d at 907. An official can also be sued in his official capacity. But an official-capacity suit against a state official is deemed to be a suit against the state and is thus barred by the Eleventh Amendment, absent a waiver by the state or a congressional override. Graham, 473 U.S. at 169, 105 S.Ct. at 3107; Kroll, 934 F.2d at 907-08. An exception to this rule is an official-capacity suit for prospective injunctive relief: a suit "to enjoin as unconstitutional a state official's action is not barred by the Amendment." Papasan, 478 U.S. at 276-78, 106 S.Ct. at 2839-40 (citing Ex Parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-54, 52 L.Ed. 714 (1908)); see also Kroll, 934 F.2d at 908.

The Scotts have sued Cook County Sheriff O'Grady and Deputy Sheriff Branch in their official capacities for compensatory and punitive damages. An official-capacity suit merely represents another way of pleading an action against an entity of which an officer is an agent and is treated as a suit against that entity. Graham, 473 U.S. at 165-66, 105 S.Ct. at 3104-05; see also Parker v. Williams, 862 F.2d 1471 1475 (11th Cir.1989) ("an action against an official acting in his official capacity imposes liability on the entity that official represents"). Thus, if O'Grady and Branch were acting as agents of the State of Illinois when they forcibly evicted the Scotts, this lawsuit is a damage action against Illinois and is barred by the Eleventh Amendment. But since the Eleventh Amendment bar "does not extend to...

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