Bethesda Lutheran Homes and Services, Inc. v. Leean, s. 98-1405

• Decision Date: 03 September 1998
• Docket Number: 98-2046,Nos. 98-1405,s. 98-1405
• Citation: 1998 WL 560236,154 F.3d 716
• Parties: BETHESDA LUTHERAN HOMES AND SERVICES, INC., et al., Plaintiffs-Appellants, v. Joseph LEEAN, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 716

154 F.3d 716

BETHESDA LUTHERAN HOMES AND SERVICES, INC., et al Plaintiffs-Appellants, v. Joseph LEEAN, et al., Defendants-Appellees.

Nos. 98-1405, 98-2046.

United States Court of Appeals Seventh Circuit.

Submitted Aug. 12, 1998.

Decided Sept. 3, 1998.

Pamela J. Schmelzer (submitted), Madison, WI, for Plaintiffs-Appellants in No. 98-1405.

Edward S. Marion (submitted), Murphy & Desmond, Madison, WI, Pamela J. Schmelzer, Madison, WI, for Plaintiffs-Appellants in No. 98-2046.

Barbara J. Janaszek, Kathryn M. West, Elizabeth M. Estes, Whyte, Hirschboeck & Dudek, S.C., Milwaukee, WI, for Defendants-Appellees.

Before POSNER, Chief Judge, and CUMMINGS and EVANS, Circuit Judges.

POSNER, Chief Judge.

This appeal by the plaintiffs is a sequel to our decision reported at 122 F.3d 443 (7th Cir.1997), and familiarity with that decision is assumed. Briefly, the underlying suit was brought under 42 U.S.C. § 1983 by a nonprofit corporation (Bethesda Lutheran) that operates a residential facility for the mentally retarded in Jefferson County, Wisconsin, by three current residents of the facility, and by four prospective residents from out of state. The defendants, state and local Wisconsin officials and, of critical importance to the present appeal, a local government--Jefferson County, Wisconsin--were charged with violating these retarded persons' federal constitutional right to travel, and some of their federal statutory rights as well, by enforcing certain Wisconsin state laws and federal Medicaid regulations. The district court upheld the constitutionality of the state laws and federal regulations. We pointed out in our first opinion that insofar as the suit sought damages from a state official in his official capacity, it was barred by the Eleventh Amendment, but that the injunctive claim against him could proceed, as could the claims, both legal and equitable, against the other defendants.

The plaintiffs who are current residents of Bethesda Lutheran's Watertown facility are classified by federal Medicaid regulations as residents of Illinois because that is where their parents lived when these plaintiffs were admitted to the facility. We noted in our previous opinion that, as Illinois residents, these plaintiffs would be entitled to Medicaid benefits from neither Wisconsin nor Illinois if the challenged regulations were valid. The plaintiffs who are prospective residents of the facility live either with their parents or, in one case, in a group home, all outside Wisconsin. The Wisconsin laws challenged in the suit prevented them from relocating to the Watertown facility, as they (or more likely their guardians) wanted to do.

We reversed the judgment of the district court, holding that both the state laws and the federal regulations were unconstitutional, and remanded the case for the entry of appropriate relief. The plaintiffs asked for and obtained injunctive relief, and that phase of the suit is over. They also sought damages from Jefferson County. The district court turned them down on the ground that while a county does not have the shield of the Eleventh Amendment, it cannot be held liable under section 1983 for acts that it did under the command of state or federal law. That at least is the position of this circuit, Quinones v. City of Evanston, 58 F.3d 275, 278 (7th Cir.1995); Surplus Store & Exchange, Inc. v. City of Delphi, 928 F.2d 788, 791-92 (7th Cir.1991), and also of the Sixth Circuit. Garner v. Memphis Police Dept., 8 F.3d 358, 364 (6th Cir.1993). The Ninth Circuit held the contrary in Evers v. County of Custer, 745 F.2d 1196, 1203 (9th Cir.1984). The circuit split is discussed helpfully in Caminero v. Rand, 882 F.Supp. 1319, 1324-25 (S.D.N.Y.1995), except that the opinion erroneously classifies Garner with Evers. Garner merely distinguishes between the state's command (which insulates the local government from liability) and the state's authorization (which does not). That is entirely consistent with Quinones and Surplus Store.

Our position admittedly is anomalous from the standpoint of conventional tort law, in which obedience to a superior's orders is not a defense to liability. Restatement (Second) of Torts § 888 (1979). The logic of our position, as we explained in Quinones, is rooted in the principle (firmly established though often criticized, for example in Larry Kramer & Alan Sykes, "Municipal Liability Under § 1983: A Legal and Economic Analysis," 1987 S.Ct. Rev. 249) that a municipality is not vicariously liable under 42 U.S.C. § 1983 for the torts of its employees. Monell v. Department of Social Services, 436 U.S. 658, 691-94, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). The plaintiff who wants a judgment against the municipality under that statute must be able to trace the action of the employees who actually injured him to a policy or other action of the municipality itself. When the municipality is acting under...