Broome v. Percy

• Citation: 470 F. Supp. 633
• Decision Date: 11 May 1979
• Docket Number: No. 78-C-631.,78-C-631.
• Parties: Anthony BROOME et al., Plaintiffs, v. Donald PERCY et al., Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

470 F. Supp. 633

Anthony BROOME et al., Plaintiffs, v. Donald PERCY et al., Defendants.

No. 78-C-631.

United States District Court, E. D. Wisconsin.

May 11, 1979.

Richard L. Cates, State Public Defender by Elizabeth Alexander, Asst. State Public Defender, Madison, Wis., for plaintiffs.

Bronson C. La Follette, Atty. Gen. by Steven C. Underwood, Asst. Atty. Gen., Madison, Wis., for defendants.

DECISION and ORDER

MYRON L. GORDON, District Judge.

This is a civil action brought under 42 U.S.C. § 1983 seeking declaratory and injunctive relief, as well as money damages. The named plaintiffs represent a class of all persons who are or who will be confined in adult correctional institutions of the state of Wisconsin. The defendants are state officials who are responsible for those institutions. This case is presently before me on the defendants' motion to dismiss the plaintiffs' damage claims. For the reasons which follow, the defendants' motion will be denied.

The named plaintiffs allege that they received misconduct reports for violating Division of Corrections rule of conduct 14.03 which provides:

"Petitions. Residents shall not join in any petition or statement with another but shall submit any petition or statement in their name only. Solicitation of another to join in a group petition or statement is a violation of this rule."

The plaintiffs allege that the promulgation and enforcement of rule 14.03 violates the plaintiffs' First Amendment rights to petition for the redress of grievances and to free association.

The sole basis for the defendants' motion is their claim that a suit for damages against them is barred by the Eleventh Amendment, which 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."

This action was filed against the defendant state officers individually and in their official capacities. The Eleventh Amendment bars actions which are in essence brought to recover money from the state even though individual officials are nominal defendants. Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 464, 65 S.Ct. 347, 89 L.Ed. 389 (1945). The issue presented by the instant motion is whether the plaintiffs' claims for damages against the defendants as individuals are in actuality claims against the state of Wisconsin.

I begin my analysis of this issue by noting that damage actions brought against state officials under 42 U.S.C. § 1983 are not automatically barred by the Eleventh Amendment, as the defendants implied in their reply brief. In Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), the personal representatives of students killed in the course of the Kent State University disturbances in 1970 sought substantial damages under § 1983 against the governor of Ohio and the president of the university among others. The defendants urged that the suit was, in fact if not in form, against the state of Ohio and thus barred by the Eleventh Amendment. The Supreme Court rejected the defendants' argument and stated:

". . . since Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), it has been settled that the Eleventh Amendment provides no shield for a state official confronted by a claim that he had deprived another of a federal right under the color of state law.

. . . . .

". . . damages against individual defendants are a permissible remedy in some circumstances notwithstanding the fact that they hold public office." 416 U.S. at 237-38, 94 S.Ct. at 1687.

The fact that damages are available in some circumstances under § 1983 against prison officials is reflected in the decision of the Court in Procunier v. Navarette, 434 U.S. 555, 98 S.Ct. 855, 55 L.Ed.2d 24 (1978). In that case, the Court recognized that a prison official might be liable for damages under § 1983, but granted such an official immunity from such damages unless the official "`knew or reasonably should have known that the action he took within his sphere of official responsibility would violate the constitutional rights of the plaintiff, or if he took the action with the malicious intention to cause a deprivation of constitutional rights or other injury to the plaintiff." Id. at 562, 98 S.Ct. at 860, quoting Wood v. Strickland, 420 U.S. 308, 321, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975). See also Buise v. Hudkins, 584 F.2d 223 (7th Cir. 1978) (holding that prisoners may be entitled to damages for violations of their First Amendment rights).

The defendants argue that damages against the defendants in this case are precluded by the Supreme Court's decision in Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In that case, the plaintiff sued the director of the Illinois Department of Public Aid, seeking in part retroactive payment of welfare benefits. The Court held that the Eleventh Amendment barred the plaintiff's claim for the statutory benefits. In so holding, the Court relied upon Ford Motor Co. v. Department of Treasury, 323 U.S. 459, 65 S.Ct. 347, 89 L.Ed. 389 (1945), in which the Court held that the Eleventh Amendment barred a suit in federal court against state tax officials by a plaintiff seeking a state tax refund.

The defendants' reliance on Edelman is misplaced. The clear distinction between Edelman and Ford Motor on one hand, and Procunier, Scheuer, and Wood on the other, is that in the former cases the plaintiffs sought fixed sums claimed as statutory debts, whereas in the latter group of cases, the plaintiffs sought to recover damages, unliquidated in amount, for violation of purely personal rights. The case at bar, in which the plaintiffs seek damages for violations of their First Amendment rights, falls squarely within the latter group of cases.

The defendants have also argued that the Eleventh Amendment bars the plaintiffs' damage claims since the state of Wisconsin would reimburse the defendants for any such liability pursuant to § 895.46(1), Wis. Stats. That statute provides in pertinent part:

"State and political subdivisions thereof to pay judgments taken against officers. (1) Where the defendant in any action or special proceeding is a public officer or employe and is proceeded against in an official capacity or is proceeded against as an individual because of acts

...