Duckworth v. Franzen

• Citation: 780 F.2d 645
• Decision Date: 05 February 1986
• Docket Number: 85-1053,Nos. 85-1010,85-1084 and 85-1095,s. 85-1010
• Parties: Junior Ray DUCKWORTH, et al., Plaintiffs-Appellees, Cross-Appellants, v. Gayle FRANZEN, et al., Defendants-Appellants, Cross-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 645

780 F.2d 645

Junior Ray DUCKWORTH, et al., Plaintiffs-Appellees, Cross-Appellants, v. Gayle FRANZEN, et al., Defendants-Appellants, Cross-Appellees.

Nos. 85-1010, 85-1053, 85-1084 and 85-1095.

United States Court of Appeals Seventh Circuit.

Argued Oct. 31, 1985.

Decided Dec. 17, 1985.

Rehearings and Rehearings En Banc Denied Feb. 5, 1986.

Jeffrey W. Finke, Ill. Atty. Gen. Office, Chicago, Ill., for defendants-appellants, cross-appellees.

J. Steven Beckett, Reno O'Byrne & Kepley, Champaign, Ill., for plaintiffs-appellees, cross-appellants.

Before BAUER, POSNER and EASTERBROOK, Circuit Judges.

POSNER, Circuit Judge.

In November 1979 a bus used to transport prisoners between Illinois prisons caught fire from unknown causes. When the fire broke out, the 35 prisoners in the bus were in handcuffs, with all the prisoners on each side of the aisle being joined together by a chain running through the handcuffs. For reasons of security all exits but the front door of the bus had been sealed and there was a metal screen (like a mesh fence), probably locked (but the record is not clear on this), between the passenger area and the front door. When the bus filled with dense smoke each group of prisoners tried to rise and make its way to the front exit, but only one prisoner (who had managed to slip out of his handcuffs) succeeded in getting out, and a guard thrust him back into the bus. Eventually guards equipped with gas masks cut through the chains and brought the prisoners out. One prisoner died from the ordeal. Others suffered serious, and in at least one case permanent, lung injury. Twenty-one of the injured prisoners brought suit against three prison officials and three guards under section 1 of the Civil Rights Act of 1871 (now 42 U.S.C. Sec. 1983), charging that by failing to take effective precautions against the consequences of a fire on the bus the defendants had visited cruel and unusual punishment on the plaintiffs in violation of the Eighth Amendment, which has been held applicable to the states under the due process clause of the Fourteenth Amendment. The complaint included a pendent claim against these six defendants for negligence and a diversity claim based on products liability against a seventh defendant, the manufacturer of the bus.

The district judge severed the claim against the bus company, and it remains in the district court, awaiting trial. He dismissed the pendent claim. The civil rights claim was tried to a jury, which awarded damages totaling $561,000 (including punitive damages) against three of the defendants--Franzen, the head of the Illinois prison system at the time of the fire; Wolff, the then warden of Joliet prison, the distribution point for prisoners entering the Illinois prison system and the place where the bus was kept; and Hert, the then director of security at Joliet--but exonerated the three guards who had been in charge of the bus when the fire occurred. Although the judgment is not final in the sense of winding up the entire litigation--for the plaintiffs' claim against the bus company has yet to be tried--the judge quite properly has certified the judgment for an immediate appeal under Rule 54(b) of the Federal Rules of Civil Procedure. It disposes, with finality in the district court, of the claims against the other defendants, and they should not have to wait until the case against the bus company is concluded to get a definitive determination of their liability.

The three defendants who were found liable argue mainly that the plaintiffs' suit is barred by the Eleventh Amendment and that in any event no reasonable jury could have found them guilty of inflicting cruel and unusual punishment. The plaintiffs, cross-appealing from the dismissal of the pendent claim, argue that the district judge was wrong to think it barred by the Eleventh Amendment, especially when the judge thought the Eleventh Amendment no bar to the civil rights claim. Several of the plaintiffs also challenge the jury's award of damages to them, as too low.

The defendants say they were sued in their official capacities, making this a suit against the state. If you believe that a state officer has violated your constitutional rights, you have a choice between suing the officer personally and suing the state. If you go the former route you don't have to worry about the Eleventh Amendment but do have to worry about various personal defenses, such as good-faith immunity; if you go the latter route you don't have to worry about personal defenses but may have to worry about the Eleventh Amendment. See Kentucky v. Graham, --- U.S. ----, 105 S.Ct. 3099, 3105-06, 87 L.Ed.2d 114 (1985). A suit against an official in his official rather than individual capacity is a suit against the state. See id., 105 S.Ct. at 3105; Brandon v. Holt, --- U.S. ----, 105 S.Ct. 873, 878, 83 L.Ed.2d 878 (1985).

The complaint named Franzen "in his capacity as Director of the Illinois Department of Corrections," but Wolff and Hert merely as "Former Warden of the Joliet Correctional Center" and "Former Chief of Security" at Joliet, respectively, and the three guards just as "Officers of the Illinois Department of Corrections." The same designations appear in the part of the complaint that asks for damages. All this might seem to clinch the case for regarding the suit against Franzen, at least, as an official-capacity suit and hence barred by the Eleventh Amendment; for section 1983 did not abrogate the states' Eleventh Amendment immunity from damage suits, Owen v. Lash, 682 F.2d 648, 654 (7th Cir.1982), and Illinois has not waived that immunity. Although the Eleventh Amendment, read literally, forbids the federal courts to exercise jurisdiction over any suit by a citizen against a state, they may do so if the state consents, Alabama v. Pugh, 438 U.S. 781, 782, 98 S.Ct. 3057, 3058, 57 L.Ed.2d 1114 (1978) (per curiam)--a rare example of the conferral of subject-matter jurisdiction by consent.

Not only suing a defendant in his official capacity, but even just naming the defendant's office, raises a presumption that he is being sued only in his official capacity. See, e.g., Kolar v. County of Sangamon, 756 F.2d 564, 568-69 (7th Cir.1985); Wolf-Lillie v. Sonquist, 699 F.2d 864, 869-70 and n. 12 (7th Cir.1983). It suggests that the plaintiff is really after the employer, which is to say the state or a state agency. But the presumption cannot be conclusive in a system such as the Federal Rules of Civil Procedure create, in which the complaint does not fix the plaintiff's rights but may be amended at any time to conform to the evidence. See Fed.R.Civ.P. 15(b); Regents of the University of Michigan v. Ewing, --- U.S. ----, 106 S.Ct. 507, 511 n. 6, 88 L.Ed.2d 523 (1985); Phillips v. Vandygriff, 711 F.2d 1217, 1225 n. 9 (5th Cir.1983). Whatever the plaintiffs may have had in mind when they named Franzen "in his capacity as Director" of the Illinois prison system, the case was tried as a suit against the defendants as individuals. This is shown most dramatically by the fact that the judge, at the defendants' request, instructed the jury that all of the defendants were being sued as individuals, that they were liable only for their personal acts or omissions to act, and that neither the State of Illinois nor the Illinois Department of Corrections was a defendant.

The defendants do not argue that the form of the complaint misled them. Bear in mind that Franzen resigned as Director of the Illinois Department of Corrections while the suit was in progress, while Wolff and Hert had already resigned from the offices named in the complaint. If the state attorney general's office, which represents state officials whether sued in their official or individual capacities, had thought this a suit against Franzen or Wolff or Hert in their official capacities, we do not understand why it did not move in either the district court or this court to substitute their successors in office as defendants in their place. See Fed.R.Civ.P. 25(d)(1); Fed.R.App.P. 43(c). We hold that substance trumps form and that all the defendants were sued in their individual capacities. That this issue may not recur we urge counsel for civil rights plaintiffs when they are suing a state officer in his individual capacity to say so plainly; and if in both his individual and official capacities to make that unmistakably clear, too. Kolar v. County of Sangamon, supra, 756 F.2d at 568-69.

But being sued in their individual capacities the defendants could be held liable only for their individual wrongdoing. Section 1983 does not recognize a doctrine of superiors' liability. McKinnon v. City of Berwyn, 750 F.2d 1383, 1390 (7th Cir.1984). Such a doctrine would be analogous to respondeat superior, which makes the employer, as distinct from a superior employee, liable for an employee's tort--and which is also unavailable in suits under section 1983. Monell v. New York City Dept. of Social Services, 436 U.S. 658, 691-94, 98 S.Ct. 2018, 2036-37, 56 L.Ed.2d 611 (1978). So Franzen could not be held liable for the torts of his subordinates in the Department of Corrections. As there is no evidence of Franzen's individual wrongdoing--no evidence for example that he rewrote the guards' manual to eliminate some safety precaution in the event of fire--it may seem that the suit must really be against the office, and hence the state, not against the man. But the plaintiff is the master of his complaint. If he proceeds on a theory that he cannot substantiate factually, he is barred because of his failure of proof, not because another theory which he did not pursue is barred by an immunity. The plaintiffs charged Franzen with personal wrongdoing. Having utterly failed to prove that, they cannot get a judgment against him, but this conclusion has nothing to do with the Eleventh Amendment and does not resolve the liability of the other defendants.

An Illinois statute entitles state...