Alencastro v. Sheahan

• Decision Date: 28 July 1998
• Docket Number: No. 1-97-0772,1-97-0772
• Citation: 698 N.E.2d 1095,297 Ill.App.3d 478
• Parties: , 232 Ill.Dec. 665 Maria ALENCASTRO, Plaintiff-Appellant, v. Michael F. SHEAHAN, Indiv. and in his official capacity as Cook County Sheriff, Defendant-Appellee (Citibank, F.S.B., and Two Unknown Deputies, Defendants). First District
• Court: United States Appellate Court of Illinois

Page 1095

698 N.E.2d 1095

297 Ill.App.3d 478, 232 Ill.Dec. 665

Maria ALENCASTRO, Plaintiff-Appellant, v. Michael F. SHEAHAN, Indiv. and in his official capacity as Cook County Sheriff, Defendant-Appellee (Citibank F.S.B., and Two Unknown Deputies, Defendants).

No. 1-97-0772.

Appellate Court of Illinois,

First District.

July 28, 1998.

JoAnn F. Villasenor, Jennifer J. Payne, Legal Assistance Foundation of Chicago, Chicago, for Plaintiff-Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Patricia M. Shymanski, Allen Kirsch and Donna M. Lach, Assistant State's Attorneys, of counsel), for Defendant-Appellee.

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, 227 Ill.Dec. 560, 687 N.E.2d 1042 (1997); O'Hare Truck Service, Inc. v. Illinois State Police, 284 Ill.App.3d 941, 945, 220 Ill.Dec. 587, 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, 97 S.Ct. 568, 572, 50 L.Ed.2d 471, 479 (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, 83 Ill.Dec. 609, 470 N.E.2d 1029 (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, 227 Ill.Dec. 744, 688 N.E.2d 81 (1997); Currie v. Lao, 148 Ill.2d 151, 158, 170 Ill.Dec. 297, 592 N.E.2d 977 (1992), citing Healy v. Vaupel, 133 Ill.2d 295, 308, 140 Ill.Dec. 368, 549 N.E.2d 1240 (1990).

In this matter, we find Scott v. O'Grady, 975 F.2d 366 (7th Cir.1992), cert. denied, 508 U.S. 942, 113 S.Ct. 2421, 124 L.Ed.2d 643 (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. 781, 117 S.Ct. 1734, 138 L.Ed.2d 1 (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 ----, 117 S.Ct. at 1736-37, 138 L.Ed.2d at 7-8, citing Jett v. Dallas Independent School District, 491 U.S. 701, 737, 109 S.Ct. 2702, 2723-24, 105...