# Adden v. Middlebrooks > Court of Appeals for the Seventh Circuit · September 15, 1982 · 688 F.2d 1147 URL: https://www.frixlaw.com/law-library/cases/8915782 ## Case - **Full name:** John ADDEN, Administrator of the Estate of Kerry K. Adden v. J. D. MIDDLEBROOKS, Superintendent of the Louisiana Correctional and Industrial School, Unit of Department of Corrections of the State of Louisiana, and C. Paul Phelps, Director of the State of Louisiana Department of Corrections - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** September 15, 1982 - **Citations:** 688 F.2d 1147 - **Precedential status:** Published - **Opinion:** Concurring in part by Cudahy - **Judges:** Cudahy, Pell, Wood - **Cited by:** 50 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8915782 ## How later opinions describe it (automated extraction) - concluding that the federal court in Illinois did not have personal jurisdiction over Louisiana’s Director of Department of Corrections or the Superintendent of Louisiana Correctional and Industrial School who were sued for a wrongful death committed in Illinois by two escaped… - finding no waiver by defendants even though defendants never raised issue after initial pleading until supplemental briefing was ordered by the appellate court, but warning that “[defendants] are well advised to brief fully all grounds ... in their favor” - holding that the Department of Corrections of the State of Louisiana is an arm of the state entitled to Eleventh Amendment immunity - holding that *617 sovereign immunity barred a wrongful death suit against a state correctional department in federal court - holding that sovereign immunity barred a wrongful death suit against a state correctional department in federal court ## Opinion text CUDAHY, Circuit Judge, concurring in part and dissenting in part. I agree with the majority that plaintiff’s suit against the Louisiana Department of Corrections is barred under the eleventh amendment since the Department is clearly an alter ego of the state. I part company with the majority, however, on the question whether the plaintiff may proceed, as he has in fact proceeded, against Middlebrooks and Phelps in their individual capacities and whether we have jurisdiction over the, persons of these defendants. I. It is not clear whether the majority concludes that plaintiff’s suit against Middle-brooks and Phelps is barred by the eleventh amendment. Although it does not expressly hold that Middlebrooks and Phelps are immune from the instant suit under the eleventh amendment, the majority attempts to distinguish the case before us from Scheuer v. Rhodes, 416 U.S. 232 , 94 S.Ct. 1683 , 40 L.Ed.2d 90 (1974), a decision denying eleventh amendment immunity to individual public officials in a case similar to the case at bar. In any event, the majority explicitly concludes that this suit must be dismissed as to these defendants in their individual capacity because plaintiff’s claims involve “discretionary” acts for which the defendants, as public officers, are apparently immune from tort liability under Louisiana law. In my view, the principles articulated by Chief Justice Burger in Scheuer , which the majority either ignores or attempts to distinguish, are quite relevant here. An analysis of Scheuer reveals that these defendants are not entitled to immunity under the eleventh amendment and that plaintiff’s complaint against the defendants as individuals should not be dismissed at this stage of the litigation. Plaintiffs in Scheuer brought suit against the Governor of Ohio and other Ohio officials claiming that the defendants violated their constitutional rights during the 1970 riots at Kent State University. The district court dismissed the suit on the grounds that the defendants were immune under the eleventh amendment. Writing for a unanimous Court, Chief Justice Burger concluded that the district court erred in dismissing the action at the pleadings stage when the complaint alleged that the defendants in their individual actions violated the plaintiffs’ civil rights. The majority here seems to interpret the opinion as turning on the fact that the Scheuer plaintiffs raised constitutionally based claims, while the case before us is for common law negligence. Although Scheuer may be distinguished on the basis proposed by the majority, this has no bearing on the important principles articulated in Scheuer which the majority ignores. Scheuer basically held that plaintiffs’ complaints were not barred by the eleventh amendment because they sought to recover from the defendants individually for their personal actions which allegedly deprived plaintiffs of civil rights. In this respect, the Supreme Court admonished the district court for dismissing the complaints without taking evidence when the complaints, “[fjairly read, . . . allege that each of the named defendants . .. acted either outside the scope of his respective office or, if within the scope, acted in an arbitrary manner ____” 416 U.S. at 235 , 94 S.Ct. at 1686 . The Court then reiterated the time-tested standards for assessing the sufficiency of a complaint: When a federal court reviews the sufficiency of a complaint, before the reception of any evidence either by affidavit or admissions, its task is necessarily a limited one. The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence *1159 to support the claims. Indeed it may appear on the face of the pleadings that a recovery is very remote and unlikely but that is not the test. Moreover, it is well established that, in passing on a motion to dismiss, whether on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of action, the allegations of the complaint should be construed favorably to the pleader. * * * * * * Analyzing the complaints in light of these precedents, we see that petitioners allege facts that demonstrate they are seeking to impose individual and personal liability on the named defendants for what they claim — but have not yet established by proof — was a deprivation of federal rights by these defendants under color of state law. Whatever the plaintiffs may or may not be able to establish as to the merits of their allegations, their claims, as stated in the complaints, given the favorable reading required by the Federal Rules of Civil Procedure, are not barred by the Eleventh Amendment. Consequently, the District Court erred in dismissing the complaints for lack of jurisdiction. 416 U.S. at 236, 238 , 94 S.Ct. at 1686, 1687 (emphasis in original). Plaintiff’s complaint here, like the complaint in Scheuer , “seek[s] to impose individual and personal liability on the named defendants.” 416 U.S. at 238 , 94 S.Ct. at 1687 (emphasis in original). The complaint alleges that [o]n or about April 8, 1976, Defendants wrongfully permitted these prisoners to leave their custody. They further failed to undertake reasonable measures to recapture said prisoners and retake them into custody. They further failed to provide reasonable warning and notice that said prisoners were at large. Thus, if the majority has concluded that plaintiff’s complaint against Middlebrooks and Phelps is barred by the eleventh amendment, it has ignored Scheuer . Most importantly, the absence of constitutional elements from the complaint is not relevant where the defendants are sued as individuals. For the eleventh amendment bar has nothing to do with the constitutional nature of the claim; rather, eleventh amendment analysis goes only to the question whether the defendants can be, and in fact were, sued individually. See Whitner v. Davis, 410 F.2d 24, 29 (9th Cir. 1969) (“The Eleventh Amendment immunizes a state from suit in a federal court by a citizen of that state, and this immunity is not affected by the fact that the case may be one arising under the Constitution and laws of the United States.”) Scheuer also tells us whether this suit is barred under the common law rule that public officers are not liable in tort for harm caused by their discretionary acts. Here the majority, with nothing before it but generalized pleadings, is satisfied that Middlebrooks and Phelps performed only discretionary acts when they negligently allowed Walter Lee Cook and Ronnie J. Tucker to escape from their custody. But a federal court reviewing the sufficiency of a complaint must construe “the allegations of the complaint .. . favorably to the pleader.” 416 U.S. at 236 , 94 S.Ct. at 1686 . Moreover, the issue before us “is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” Id. Here the majority has prematurely concluded that “[w]e do not think that those officials charged with maintaining the confinement of convicted criminals are engaged in ‘ministerial’ acts; therefore, the defendants are not subject to individual liability in the instant ease.” Ante at 10. In its haste to close the federal courthouse door, the majority has decided this case, ostensibly on the complaint, but really on the merits— and without any showing of the evidence. 1 *1160 I believe that plaintiff is at least entitled, on the face of the complaint, to conduct discovery to develop facts showing that the defendants’ conduct was ministerial in nature. If the facts are not there, summary judgment is always available. II. As an alternative holding, the majority concludes that the district court' properly dismissed this case because of a lack of personal jurisdiction over Middlebrooks and Phelps. I agree that defendants did not waive their objections to personal jurisdiction, but I cannot accept the conclusion that to exercise personal jurisdiction over Middlebrooks and Phelps would be inconsistent with the requirements of due process. Although purporting to analyze this case using the factors enunciated in World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286 , 100 S.Ct. 559 , 62 L.Ed.2d 490 (1980), the majority either ignores or misapplies the factors provided by that case. The majority first concludes that plaintiff’s suit did not stand “a more certain chance of success in a federal court than it would have in a Louisiana court.” Ante at 17. But the relevancy of this surmise under Woodson escapes me. Woodson instead requires this court to focus on “the forum State’s interest in adjudicating the dispute ...[,] the plaintiff’s interest in obtaining convenient and effective relief,” and the interests of the “interstate judicial system.” 444 U.S. at 292 , 100 S.Ct. at 564 . As to convenience and forum state interest, the majority ignores the interest of Illinois in securing adequate compensation from tortfeasors who negligently cause the death of an Illinois citizen. Nor does the majority mention the inconvenience for this individual plaintiff, a citizen and resident of Illinois, if he must prosecute this action in a distant state at his own expense against public officials who are defended by lawyers provided by the state at the public’s expense. In fact here there has been slight burden upon these defendants, at least up to this point, in defending this action in Illinois. A representative of the Illinois Attorney General’s office orally argued this case before this court on behalf of the Louisiana public officials, thereby reducing the defendants’ burden to the vanishing point. The majority also contends that “the interstate judicial system’s interest in obtaining the most efficient resolution of controversies,” Woodson, 444 U.S. at 292 , 100 S.Ct. at 564 , is not furthered here because plaintiff has unnecessarily burdened this court with an eleventh amendment issue by not suing defendants in Louisiana. Ante at 17-18. But this misses the point. In referring to the interstate judicial system’s interest in efficiency, I think that the Wood-son Court intended that we consider factors such as the convenience of witnesses, the presentation of all claims for relief in one court and the ability of the forum court to apply its own law or the law of another state. In this case, only one of these factors — convenience of witnesses, some of whom we assume are residents of Louisiana — would point away from Illinois as the appropriate forum. 2 Finally, the majority does not even mention whether “the shared interest of several states in furthering fundamental substantive social policies,” Woodson, 444 U.S. at 292 , 100 S.Ct. at 564 , cuts against Illinois as the proper forum. But a significant (perhaps the most significant) interstate policy issue present in this case is whether public officials who negligently permit dangerous convicts to escape from confinement and who negligently fail to follow cooperative procedures to secure the recapture of these convicts 3 will be liable for harm caused by *1161 such convicts in other states. Defendants have not expressed any interstate public policy which would dictate that they not be held amenable to suit in Illinois. Cf. Kulko v. California Superior Court, 436 U.S. 84, 93 , 98 S.Ct. 1690, 1697 , 56 L.Ed.2d 132 (1978) (allowing suit against father in California, when father was present in that state only twice in lifetime, might discourage divorced parents from making reasonable visitation agreements). After its cursory treatment of the Wood-son factors, the majority then analyzes the second prong of Woodson : whether the defendants purposefully availed themselves of the opportunity to act in the forum state in such a way that they “should reasonably anticipate being haled into court there.” 444 U.S. at 297 , 100 S.Ct. at 567 . What the majority’s analysis ignores is that Woodson (and its precursors) involved either individuals or business defendants, not public officials. I believe that the interest in predictability for structuring primary activities, Woodson, 444 U.S. at 297 , 100 S.Ct. at 567 , is much more relevant for private than public litigants. Public officials are frequently engaged in activities which, by their nature, cut across state boundaries; no amount of planning and structuring could limit the interstate effects of these activities. 4 Private individuals and businesses, on the other hand, can often minimize the interstate consequences of their actions — and the Woodson Court intended that they be afforded such an opportunity to avoid being haled into distant forums. Thus, in the case before us, it is not unreasonable to conclude that the defendant prison officials might expect to be haled into the courts of other states if their negligence allowed prisoners in their custody to escape. This conclusion follows particularly when the escaped convicts formerly resided in Illinois and might reasonably be expected to return to Illinois. I therefore respectfully dissent. . At no time in this case has any party presented any argument that defendants are immune from suit for common law negligence because of the discretionary nature of their actions. Although we may affirm a lower court decision even on grounds not addressed below, I think the more prudent course is to remand the case for the development of an evidentiary record when we must rely upon an assessment of facts which the parties have not yet had a chance to *1160 develop. Nor have we had the benefit of additional briefing on common law liability of the individuals as we have had on the personal jurisdiction issue. . In this respect, the district court may, if necessary, lessen the burden on witnesses and defendants by allowing the presentation of testimony through depositions rather than in-court testimony. . Such cooperative procedures might include contacting local police officials in the convict’s hometown to alert them to the escape. The defendants allegedly did not make such contacts in this case. . For example, it would be difficult for prison officials to “structure” the interstate effects of a prison escape in which persons residing in other states were injured or killed; or for public health officials to “structure” the spread of a disease to animals in other states when the animals from their state are shipped to market; or for public school officials to “structure” vocational training so that its deficiencies remain at home and do not affect other states. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8915782. Public record. Not legal advice.