Opposition — McDonald v. Illinois

.

No. 77.399 der 7 in

— ROD N. CLERK

In the |

Supreme Court of the United States

Ocroszr Tun, 1976

Wilbur McDonald,

Petitioner,

vs.

State of Illinois, City of Chicago, County of Cook, Edward

V. Hanrahan, Bernard M. Carey, Joseph Woods, Richard

Elrod, Department of Corrections of Cook County, Daniel

Weil, James Rochford, James Conlisk, William Arnos

and Gerald Saternos,

Respondents.

— ~~~ — — — — — ————— 1 ——————— PPP YU Y

On Petition For A Writ Of Certiorari To

The Court Of Appeals For The Seventh Circuit

BRIEF FOR RESPONDENTS COUNTY OF COOK,

EDWARD V. HANRAHAN, BERNARD M. CAREY,

JOSEPH WOODS, RICHARD ELROD, DEPARTMENT

OF CORRECTIONS OF COOK COUNTY and

DANIEL WEIL IN OPOSITION.

BNA Carey

State’s Attorney of Cook County

500 Richard J. Daley Center

Chicago, Illinois 60602

(312) 443-7940

Attorney for Certain Respondents.

Par. P. Press, Je.

Deputy State’s Attorney

Chief, Civil Actions Bureau

Jonny A. Dunn, III

Assistant State’s Attorney

Of Counsel.

The Scheffer Press, Inc—(312) 263-6850

K ~*~

SUED

TABLE OF CONTENTS

PAGE

TK» — 1

c ( —————— 2

4 — 2

r 2

. 2

.... — 3

I. The Complaint Fails to State A Claim Upon

Which Relief May Be Granted 3

II. Defendants Hanrahan, Carey, Woods and Elrod

Are Absolutely Immune From this Civil Dam-

%%% 6

III. 28 U.S.C. 1331 Does Not Afford the Petitioner

Any Remedies Above and Beyond Those Con-

tained In 42 U.S.C. 1983... * — 8

IV. The Constitutionality of Chapter 37, Section 439.8

of the Illinois Revised Statutes Is Not Before

—— 12

, §•ÄRQ⁸dꝛ;. Ü AU! —L—[E'ͤ Xn »

Crrations Or AvuTHORITIES

Alyeska Pipeline Service Co. v. Wilderness Society,

RE TE SS 10

Chambers v. Mississippi, 410 U.S. 284 (1973) 5

City of Kenosha v. Bruno, 412 U.S. 507 (1973) 8

Donnelly v. DeChristofore, 416 U.S. 637 (1974) 5

Frank v. Mangum, 237 U.S. 309 (1915) . . +

ii

PAGE

Frisbie v. Collins, 342 U.S. 519 (1952) . 5

Grannis v. Ordean, 234 U.S. 385 (1914) 4

Imbler v. Pachtman, 424 U.S. 409 (1976) 6

Lavine v. Milne, 424 U.S. 577 (1976) . 6

Lyons v. Oklahoma, 322 U.S. 596 (1944) . 4

McGautha v. California, 402 U.S. 183 (1971) 5

Monroe v. Pape, 365 U.S. 167 (1961) 9

Paul v. Davis, 424 U.S. 693 (1976), reh. den

„ — . 5

Pierson v. Ray, 386 U.S. 547 (1967) . 7

Powell v. Alabama, 287 U.S. 45 (1932) . 4

Rees v. City of Watertown, 86 U.S. 107 (1873) ............ 6

Rizzo v. Goode, 423 U.S. 362 (1976) . 7

Sproles v. Binford, 286 U.S. 374 (1932) .. 4

Townsend v. Burke, 334 U.S. 736 (1947) 4

IN THE

SUPREME COURT OF THE UNITED STATES

Ocroser Term, 1976

No. 77-399

Wilbur McDonald,

Petitioner,

vs.

State of Illinois, City of Chicago, County of Cook, Edward

V. Hanrahan, Bernard M. Carey, Joseph Woods, Richard

Elrod, Department of Corrections of Cook County, Daniel

Weil, James Rochford, James Conlisk, William Arnos

and Gerald Saternos,

Respondents.

On Petition For A Writ Of Certiorari To

The Court Of Appeals For The Seventh Circuit

BRIEF FOR RESPONDENTS COUNTY OF OOOE,

EDWARD V. HANRAHAN, BERNARD M CAREY,

JOSEPH WOODS, RICHARD ELROD, DEPARTMENT

OF CORRECTIONS OF COOK COUNTY and

DANIEL WEIL IN OPPOSITION.

OPINIONS BELOW

The opinion of the District Court (App. A herein) is

unreported. The opinion of the Court of Appeals for

the Seventh Circuit, appended to Petitioner’s Brief as

—

appendix A, contains several important typographical

errors. The corrected appellate decision has not yet

been published.

JURISDICTION

The jurisdictional requisites are adequately set forth

in the Petition.

QUESTIONS PRESENTED

I. Does the complaint state a claim upon which relief

may be granted as to any of these respondents?

II. Are defendants Hanrahan, Carey, Woods and El-

rod immune from this civil damage action for acts with-

in the scope of their authority?

III. Does 28 U.S.C. 1331 afford the Petitioner any

remedy above and beyond those contained in 42 U.S.C.

1983?

IV. Is the issue of the constitutionality of Ch. 37 §

439.8 Ill. Rev. Stat. before this court on review?

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

The constitutional provisions and statutes involved are

adequately set forth in the Petition except that Chap.

37 439.8 Ill. Rev. Stat. is not before this court on re-

view.

STATEMENT OF THE CASE

Petitioner’s recitation of the statement of the case is

substantially correct except that under Ch. 37 §4398 III.

Rev. Stat. the limit of recovery for the wrongful im-

prisonment is approximately $5,000 per year in custody,

not the $3,000 stated by petitioner.

I

THE COMPLAINT FAILS TO STATE A CLAIM UPON

WHICH RELIEF MAY BE GRANTED.

The gist of the plaintiff’s complaint is that because

he was disbelieved by a jury in a murder trial he was

thereby, ipso facto, denied various constitutionally pro-

tected rights, privileges or immunities. That simply

is not and never has been the law. In essence, the

plaintiff suggests that he was denied due process and

therefore properly has this action. Due process requires

only that these defendants afford this plaintiff that

process which is legally due to him. If he receives that

process the law has been met and he has no claim.

Nowhere in the United States or Illinois constitutions

is there any requirement that the innocent prevail. Con-

trariwise, it is common-place for the known and admitted

guilty to go free for a variety of reasons. While the

system attempts to do substantial justice to all, there

can be no guarantee that the guilty go to jail and the

innocent go free. Guidelines are established by the courts

and by statutes. Those which are legally binding on

the system are the process which is due to the criminal

defendant. The accused must be given an opportunity

to meet the charges, present evidence and a multitude

of other rights. But when those requirements have been

met, or have been held to have been met by the courts,

that is all that the system, manned by human beings, can

do. When there is an absolute method of determining

guilt, which is always correct, to permit less may deny

due process, but such is not our present fortune,

3

Neither the various constitutions nor state and federal

laws require or guarantee that only guilty persons be

found guilty. That is the sought after result, to be

sure, but it is neither mandated nor promised. It is

obvious that a failure to do that which is not required

cannot state a claim for relief under either 28 U.S.C.

1331 or 1334.

This court has long recognized the impossibility of

providing every litigant a perfect trial. Grannis v. Or-

dean, 234 U.S. 385 (1914). So long as society must

utilize human judges, attorneys, witnesses, litigants and

jurors we will have to live with something less than

the ideal. Sproles v. Binford, 286 U.S. 374 (1932) teaches

that to make scientific precision a constitutional require-

ment would be to subject the state to intolerable super-

vision which would be hostile to the principles of our

government and wholly beyond the protection contem-

plated by the 14th Amendment. Powell v. Alabama, 287

U.S. 45 (1932) held that the basic elements of the con-

stitutional requirement of due process are notice and

a hearing before a legally competent tribunal having

jurisdiction of the case. This principle was further

described in Frank v. Mangum, 237 U.S. 309 (1915),

wherein the Court held that ‘‘due process of law’’ does

not mean that the operations of state government shall

be conducted without error or fault in any particular

case but only that the defendant’s fundamental rights

shall not be taken from him arbitrarily or without the

right to be heard according to the usual course of law

in such cases. Similarly, due process does not provide

review of mere error in jury verdicts. Lyons v. Okla-

homa, 322 U.S. 596 (1944). To the same effect is Town-

send v. Burke (1947) 334 U.S. 736, which found that an

erroneous judgment of a court in a criminal case, based

on a scrupulous and severe search for the truth, may

yet amount to due process of law. Donnelly v. DeChris-

toforo, 416 U.S. 637 (1974) held that not even every trial

error which might call for the application of an appellate

court’s supervisory powers necessarily demonstrates a

failure to observe that fundamental fairness which is

essential to the concept of justice.

Due process is satisfied when the defendant is present

in court and is convicted after having been fairly advised

of the charges and after a fair trial held in accordance

with constitutional procedural safeguards, Frisbie v. Col-

lins, 342 U.S. 519 (1952), or more simply stated, when

he has had a fair opportunity to defend against the state

charges. Chambers v. Mississippi, 410 U.S. 284 (1973).

This court declared in McGautha v. California, 402 U.S.

183 (1971),

‘‘(T he federal Constitution. . does not guarantee

trial procedures that are best of all worlds, or that

accord with the most enlightened ideas of students

of the infant science of criminology, or even those

that measure up to the individual predilections of

members of This Court. The Constitution requires

no more than that trials be fairly conducted and

that guaranteed rights of defendants be scrupulously

respected. 402 U.S. at 221

Recently, this Court concluded that the Fourteenth

Amendment’s due process clause does not ex proprio

vigore extend to a person a right to be free of injury

whenever the state may be characterized as the tort-

feasor. That is, not every legally cognizable injury

which may have been inflicted by a state official acting

under ‘‘color of law’’ establishes a violation of the

Fourteenth Amendment. Paw v. Davis, 424 U.S. 693

(1976), reh. den., 425 U.S. 985. Even more pointed is

—_ wr

the holding that the Fourteenth Amendment does not

guarantee that all decisions by state officials will be cor-

rect. Lavine v. Milne, 424 U.S. 577 (1976).

It has been the law of this land since 1873 that “due pro-

cess of law” means in the dre course of legal proceedings,

according to those rules and forms which have been estab-

lished for the protection of private rights. Rees v. City of

Watertown, 86 U.S. 107 (1873) Petitioner herein has abso-

lutely failed to point out any deficiency in the state crimi-

nal proceedings which would constitute a denial of due pro-

cess. Rather, he argues that the erroneous jury verdict,

ipso facto, constitutes a due process violation. That is not

the law. He even admits due process compliance.

II.

RESPONDENTS HANRAHAN, CAREY, WOODS AND

ELROD ARE ABSOLUTELY IMMUNE FROM THIS

CIVIL DAMAGE SUIT.

Beyond the obvious deficiencies in the pleadings which

fail to demonstrate that State’s Attorneys Hanrahan and

Carey personally participated in the Petitioner’s prosecu-

tion,’ it is well settled law that their mere status as elected

officials fails to state a claim upon which relief may be

granted. Had they personally participated in the prosecu-

tion, they would be immune from suit. Imbler v. Pachtman,

424 U.S. 409 (1976).

Two Sheriffs of Cook County, Illinois are named as de-

fendants: Joseph I. Woods and Richard J. Elrod. No-

Edward V., Hanrahan was the elected State’s Attorney

of Cook County, Illinois fram December 3, 1968 to and in-

cluding 4, 1972,. Bernard Carey is the present

State’s Attorney of Cook County, Illinois. He entered of-

fice on December 5, 1972.

a

where in the complaint are they alleged to have personally

participated in any specific acts which allegedly caused

the plaintiff injury. Respondeat superior is not an avail-

able doctrine by which to hold these defendants liable. It

is now well established that personal participation must

be alleged or the complaint is defective. Rizzo v. Goode,

423 U.S. 423 U.S. 362 (1976).

Ch. 125, 5203 (a) and (b), JU. Rev. Stat., sets forth

statutory duties upon defendants Woods and Elrod to

establish, operate and have jurisdiction over the Cook

County Department of Corrections—the physical plant

and the inmates therein. The plaintiff admits in his com-

plaint he was arrested hy the Chicago Police Department

(paragraph 8, Complaint) and it is not alleged but as-

sumed for the sake of this motion that he was then housed

in the Cook County Department of Corrections, Division

I. Such incarceration is by court order, a mittimus. Ch.

125, 516, II. Rev. Stat., states:

“The disobedience of any sheriff to perform the

command of any writ, warrant, process, order, or de-

cree legally issued to him shall be deemed a contempt

of the court that issued the same... .”

The state law further prevails upon these defendants:

“(T]he warden of the Jail shall receive and confine in

such jail, until discharged by due course of law all

persons who are committed to such jail by a compe-

tent authority.” Ch. 75, A, JU. Rev. Stat.

Defendants Woods, Weil and Elrod had no discretion

detaining the plaintiff amd cannot now be liable for com-

plying with their statutory duties. A public official acting

pursuant to a court order, valid on its face, (here a mitti-

mus) is immune from civil damage suits. Pierson v. Ray,

386 U.S. 547 (1967).

III.

28 U.. O. 1331 AFFORDS THE PETITIONER NO REM-

EDIES ABOVE AND BEYOND THOSE CONTAINED

IN 42 U.8.0. 1983.

The Cook County Department of Corrections is an as-

semblage of bricks, wash basins, steel bars and toilets: it

neither acts nor fails to act and, of course, has not been

accused of having committed any acts at all for rather

obvious reasons. It is not a proper party defendant. The

same goes for the plaintiff’s claim against the County of

Cook. First these defendants assert that the allegations

contained in the complaint do not constitute a claim of

denial of due process. But assuming, arguendo, to the

contrary, these defendants are not proper parties defen-

dant as they are not “persons.”

Although plaintiff’s Complaint is somewhat ambiguous

as to the jurisdictional base for his action against the

County of Cook, he apparently claims that jurisdiction is

based under 28 U.S.C. §1343(a) (for a violation of 42

U.S.C. $1981) and under 28 U.S.C. §1331(a) (for viola-

tions of his rights under the Eighth and Fourteenth

Amendments).

A county is not suable under 42 U.S.C. 51983. Plaintiff

alternately claims that independent jurisdiction exists by

virtue of 28 U.S.C 51331 (a) for a violation of his rights

under the Forr cath Amendment. Plaintiff has cited be-

low City of Kenosha v. Bruno, 412 U.S. 507 (1973) in sup-

port of his position. In City of Kenosha v. Bruno, the

plaintiff sued two municipalities alleging jurisdiction un-

der 28 U.. C. §§1331 and 1343. Concerning the availability

of jurisdiction under §1331, the Supreme Court stated:

“We have had the benefit of neither briefs, argu-

ments, nor explicit consideration by the Distriet Court

of the. . availability of 51331 jurisdiction in view of

the state of the record below.” 93 S.Ct. at 2227.

The Court did not squarely decide the jurisdictional con-

tention put forward by plaintiff here.

It is submitted that no jurisdiction should exist against

a municipality under 28 U.S.C. §1331 for a violation of

an individual’s civil rights. The Seventh Circuit has

agreed with this position in its decision below.

Prior to the enactment of the 1871 Civil Rights Act, 42

U.S.C. $1983, no remedy existed in the federal courts by

which an individual could sue for damages for a violation

of his civil rights. Certainly the Fourteenth Amendment

and others created “constitutional rights;” but they did

not contain remedies. Thus, no remedy or right to sue

for monetary damages existed prior to the date upon

which Congress, acting pursuant to Section 5 of the Four-

teenth Amendment, enacted 42 U.S.C. $1983.

The legislative history of 51983 has been examined on

numerous occasions by the Supreme Court. Most signifi-

cantly, in Monroe v. Pape, 365 U.S. 167 (1961) the Court

considered and rejected the contention that Congress had

intended to bring municipal corporations within the ambit

of $1983.

It is clear that the only means by which an individual

may sue to secure monetary damages for a deprivation

of his constitutional rights is when the Congress specifi-

cally creates by legislation such a remedy. Moreover, 28

U.S.C. §1331 (a) does not create a remedy. Rather, it is

merely jurisdictional, providing a forum where remedies

previously established by Congress can be adjudicated.

To this date, Congress has not seen fit to hold municipal

corporations liable when an individual’s rights are vio-

lated. If a liability does not exist under existing legislation

4 tii

(in this case §1983), a plaintiff cannot circumvent Con-

gress by fashioning a remedy from a purely jurisdictional

enactment. A similar attempt was made by other plaintiffs

in an attempt to recover attorneys’ fees in “public inter-

est” litigation where they were successful. They argued

that while no federal statute permitted it, it was proper

to do so under the federal doctrine that permits the fash-

ioning of appropriate remedies. The Court rejected that

argument: Alyeska Pipeline Service Co. v. Wilderness

Society, 421 U.S. 240 (1975)

Even assuming as a general proposition of law that the

County of Cook can be held liable for alleged violations

of an individual’s rights, it is apparent that under the

allegations in his Complaint the County cannot be held

accountable to this plaintiff.

The single thread by which plaintiff is attempting to

hold the County liable is an unpleaded, inter linea assump-

tion that acts of certain county officers (Hanrahan, Carey,

Elrod, Weil and Woods) deprived Plaintiff of his rights.

Implicit in that claim is the contention that the County is

liable under a respondeat superior theory. In that conten-

tion, plaintiff ignores the legal relationship between the

County and the individual defendants, as well as the facts

that the individuals are not agents of the County and the

County is not their “superior.” 0

Since December 1, 1969, the operation of the Cook

County Jail has been the responsibility of the Cook County

Department of Corrections. III. Rev. Stat., Ch. 125, 5201

et seg. The Board of said Department consists of five

members, (5204), and it has the power and duty “to op-

erate and have jurisdiction over the county jail.” [$203

(a) J. The executive director of the Department is selected

by the Sheriff from names submitted by the Board, and

he can be removed only by the Board itself. Clearly, the

a

director is not the agent of the County of Cook because

the County has no control over his activities. Thus, the

County is not a “superior” to the director.

Similarly, guards at the Cook County Jail are not agents

of the County of Cook Rather, they are appointed, pro-

moted, removed, and disciplined pursuant to regulations

established by the Cook County Police and Corrections

Merit Board, lll. Rev. Stat., Ch. 125, §52, et seg. Guards,

of course, are also responsible to the Sheriff. However,

there is no statutory authority for the proposition that

the County of Cook has any authority to control the ac-

tions of a guard, the warden, or the director at the De-

partment of Corrections. Thus, the County cannot be held

accountable for those persons’ acts.

Finally, it should be noted that the County has no con-

trol over the actions of Sheriffs Elrod and Woods and

State’s Attorneys Carey and Hanrahan. Those positions

are established by the 1970 Illinois Constitution, and they

are elected by the citizens of the County. They are re-

sponsible to those citizens, and perform within statutory

guidelines. The County of Cook has no statutory authority

to contro] the manner in which the Sheriff or the State’s

Attorney perform their statutory duties. Thus, they can-

not be considered agents of the County, and the County

cannot be said to be responsible for their actions.

It is submitted that if the County of Cook has neither

the power to employ Elrod, Woods, Weil, Carey or Han-

rahan, nor the power to control their actions, then the

County cannot be held legally responsible for their actions

or inactions. As such, plaintiff’s Complaint fails to state

a claim upon which relief can be granted against the

County of Cook.

=

The Seventh Circuit’s holding that the County of Cook

cannot be made liable via 28 U.S.C. 1331 is entirely con-

sistent with the applicable state law which is contained in

Chapter 85, Section 2-109, Ill. Rev. Stat. which states:

“A local public entity is not liable for an injury result-

ing from an act or omission of its employee where

the employee is not liable.”

IV.

THE CONSTITUTIONALITY OF CHAPTER 37, SEC-

TION 439.8, OF THE ILLINOIS REVISED STATUTES

IS NOT BEFORE THIS COURT.

Plaintiff attempts to litigate for the first time on appeal

the constitutionality of Chapter 37, Section 439.8 of the

Illinois Revised Statutes. The constitutionality of this

statute was never raised by the plaintiff in his complaint.

Paragraph 20 of the complaint states that a claim has

been filed in the Illinois Court of Claims pursuant to this

statute.” Paragraph 21 of the complaint simply states the

pleader’s feelings that the limits prescribed by the statute

are arbitrary. Paragraph 25 concludes the complaint by

stating that limiting the plaintiff’s recovery to the statu-

tory rate defeats “overriding policy” and “due process

considerations.” The complaint is devoid of any request

for declaratory relief and the complaint lacks a jurisdic-

tional statement including 28 U.S.C. 2201. The complaint

does not request a declaration concerning the constitution-

ality of the state statute. This would tend to explain why

the District Court failed to rule upon the constitutionality

of the statute. Similarly, no relief pursuant to 28 U.S. C.

2281 was sought. Herce, plaintiff’s request for an advisory

opinion concerning the statute ought properly be denied.

* Giving rise to these respondents’ defense below of prior

pending state claim.

a on

CONCLUSION

These Respondents submit that the issues raised by

Petitioner’s appeal are insubstantial and do not justify

plenary review by the Court.

Respectfully submitted,

Berrnarp Carey

State’s Attorney of Cook County,

* Illinois

500 Richard J. Daley Center

Chicago, IIlinois 60602

(312) 443-7940

Attorney for Respondents

County of Cook, Edward Hanrahan,

Bernard Carey, Joseph Woods,

Richard Elrod, Department of

Corrections of Cook County and

Daniel Weil.

Paul P. Bresen, Jr.

Deputy State’s Attorney

Chief, Civil Actions Bureau

Joun A. Drenner, III

Assistant State’s Attorney

Of Counsel.

**

APPENDIX A

In Tae Untrep Srates Districr Court

For The Northern District Of IIlinois

Eastern Division

WILBUR McDONALD,

Plaintiff,

vs.

STATE OF ILLINOIS, et. al.,

Defendants.

No. 75 C 2755 -

MEMORANDUM OF DECISION .

This is a civil rights action brought by plaintiff pur-

suant to the provisions of 42 U.S.C. Section 1983. Juris-

diction in this Court is invoked under the provisions of

42 U.S.C. Section 1343. Plaintiff also alleges jurisdic-

tion under the federal question provisions of 28 U.S.C.

Section 1331. All of the parties named defendants here-

in have pleaded to plaintiff’s complaint by way of mo-

tions for summary judgment or to dismiss the complaint.

The case is presently before the Court for decision on

the defendants’ motions.

A reading of the complaint reveals the following allega-

tions: Plaintiff was arrested by Chicago police officers

on July 11, 1970, and was thereafter tried and convicted

of murder by a jury on August 17, 1971. The trial took

place in the Circuit Court of Cook County, Illinois,

Criminal Division. In August 1973, one Lester Harrison

confessed to the murder for which plaintiff had been

convicted. Plaintiff was subsequently discharged after

the Cook County States’ Attorney had found sufficient

information demonstrating the truth of Harrison’s con-

fession. Approximately one year later plaintiff was

granted a full pardon based on innocence by the

Governor of Illinois.

*

As a result of this conviction and incarceration, the

complaint states that plaintiff was deprived of his free-

dom, of normal human society, and of all the usual and

ordinary pursuits and benefits of life as a free man.

The complaint further alleges numerous deprivations of

rights and other wrongs perpetrated by the various

defendants.

The complaint recites that plaintiff has filed an action

in the Illinois Court of Claims for damages pursuant

to Illinois Statutory provision (Ill. Rev. Stat. Ch. 37,

Sec. 439.8(c)). The complaint maintains that the above-

cited Illinois statute violates due process in that it places

an arbitrary limit upon the value of an innocent per-

son’s wrongful incarceration. The complaint further as-

serts the curious, if not unsupportable, legal position that

when a person is convicted and incarcerated for an offense

of which he is in fact innocent, government officials ‘‘must

have been responsible therefor; res ipsa loquitur. Upon

such an allegation and proof of wrongful conviction and

incarceration of an innocent man, defendants must es-

tablish that they were not responsible for said mis-

i of justice and for the resulting damages to

plaintiff. (Par. 24, Complaint). The prayer seeks five

million dollars in damages.

Defendant Conlisk, a former Superintendent of the

Chicago Police Department, and defendant Rochford, the

present Superintendent, have filed motions for summary

judgment pursuant to Rule 56 of the Federal Rules of

Civil Procedure. Both defendants have attached affidavits

to their motion in which they assert that they exercised

no direct supervision over certain other named defen-

dants in this action, and, in effect, deny any personal in-

volvement in the activities which gave rise to the plain-

tiff’s complaint.

The Court notes at the outset that summary judgment

under Rule 56(c) is to be applied with caution. Internu-

tional Association of M. & A.W. Dist. No. 8 v. Clark

Company, 471 F. 2d 694, 697 (7th Cir. 1972). It is in-

cumbent that this Court examine all proffered materials

to determine whether there is a genuine issue of material

fact to be tried. Hazeltine Research, Inc. v. General

Electric Co., 183 F. 2d 3 (7th Cir.1950). The granting

of summary judgment, while a drastic remedy, is a whole-

some one where applicable to the circumstances, and is

never warranted except on a clear showing that no

genuine issue as to any material fact remains for trial.

Minte v. Mathers Fund, Inc., 463 F. 2d 495, 498 (7th

Cir. 1972).

A reading of the complaint reveals that the names of

Conlisk and Rochford are not even mentioned in any

paragraph of the complaint. It appears that their only

connection with this lawsuit is the fact that they are

named as defendants in the caption of the case. In light

of this failure to allege facts pertaining to these defen-

dants, and in light of the requirement of an allegation

of personal involvement on the part of public officials

for the maintenance of a respondeat superior theory

of liability, Adams v. Pate, 445 F. 2d 105 (7th Cir. 1971),

the Court finds that the pleadings, memoranda, and aff-

davits present no genuine issue as to any material fact.

Accordingly, the motion for summary judgment of defen-

dants Conlisk and Rochford is granted.

Defendant Hanrahan, the former Cook County, Illinois,

State’s Attorney, and defendant Carey, the present

State’s Attorney, have filed a motion to dismiss the com-

plaint for failure to state a claim upon which relief can

be granted pursuant to Rule 12 (b)(6), F.R.C.P. A com-

plaint, of course, should not be dismissed for failure

to state a claim unless it appears beyond doubt that the

plaintiff can prove no set of facts in support of his

claim which would entitle him to relief. Conley v. Gibson,

355 U.S. 41, 45, 46 (1957). For purposes of entertaining

a motion to dismiss, the Court treats the allegations

of the complaint as true. Gardner v. Toilet Goods As-

sociation, 387 U.S. 167, 172 (1967).

It is a fundamental principal that a prosecuting at-

torney, acting within the scope of his office as provided

ection

by statute, enjoys the same cloak of immunity from

civil liability as a judge. See Cawley v. Warren, 216

F. 2d 74 (7th Cir. 1954). Inasmuch as the complaint

fails to allege that defendants Hanrahan and Carey

somehow acted outside the scope of their authority as

set forth in III. Rev. Stat. Ch. 14, Sec. 5 and its stat-

utory predecessor, and since the rule of judicial immunity

precludes the possibility of holding these defendants

liable for the prosecution of the plaintiff, the motion of

defendants Carey and Hanrahan to dismiss is hereby

granted.

Defendant Woods, the former Sheriff of Cook County,

defendant Elrod, the present Sheriff, and defendant

Weil, the former Superintendent of the Cook County

Department of Corrections, have also filed motions un-

der Rule 12 (b)(6) to dismiss the complaint. The Court

notes that there must be an allegation of defendants’

personal involvement in the alleged deprivation of plain-

tiff’s federally protected rights. Adams v. Pate, supra, in

order to impose vicarious liability on those defendants

under the theory of respondeat superior. Furthermore,

Illinois law provides for the duties of the office of Sheriff

(Ill. Rev. Stat. Ch. 125) and the duties of the Warden

(Ill. Rev. Stat., Ch. 75), and it is a well recognized prin-

ciple that a public official, acting pursuant to a court

order, is immune from civil damage suits. See Robinson

v. McCorkle, 462 F. 2d 111 (3rd Cir. 1972), and cases

cited therein. In the instant case, the complaint contains

no allegations as to defendants Woods and Elrod, and

in light of the foregoing reasons, their motion to dismiss

is hereby granted.

As to defendant Weil, the complaint alleges that this

defendant refused to allow plaintiff’s attorney to photo-

graph the plaintiff shortly after his arrest in order to

corroborate testimony that the plaintiff had been beaten

by unknown assailants, accounting for his presence near

the scene of the homicide. The Court finds that such an

allegation, even if proven, is insufficient to state a claim

upon which relief can be granted. Defendant Weil, as

*

Superintendent of the Cook County Department of Cor-

rections, is vested with authority to promulgate such rules

and regulations as he deemed proper for the administra-

tion of the institutions over which he exercised control.

As such, a corrections official’s refusal to allow plain-

tiff’s attorney to photograph the plaintiff is not a

deprivation of right which rises to such a dimension as

to be cognizable under the Civil Rights Act of 1871

Accordingly, as to defendant Weil, the motion to dismiss

is hereby granted.

Defendants Arnos and Saternos of the Chicago Police

Department have also presented a motion to dismiss

based on their assertion that the action is barred by

the statute of limitations (Ill. Rev. Stat. Chapter 83,

Sec. 15). Although this Court makes no ruling on whether

the applicable statute of limitations bars this action as

to these defendants, the Court does find that the allega-

tions of the complaint are insufficient to state a claim

against Arnos and Saternos. The complaint alleges that

these defendants refused to ‘‘discuss facts they knew

prior to their testimony,“ and that they failed to properly

report their initial encounter with the plaintiff. The

Court finds these allegations are not sufficient to state

a claim upon which relief can be granted. Accordingly,

as to defendants Arnos and Saternos, the motion to

dismiss is hereby granted.

Also named as defendants in this action are the State

of Illinois, the City of Chicago, the County of Cook

and the Department of Corrections of Cook County,

Illinois. All of these defendants are governmental units

for which the various individually named defendants

acted as agents or executives. In light of this Court’s

decision that the motions for summary judgment or to

dismiss the complaint should be decided in favor of the

various named individual defendants, and in light of the

fact that the governmental unit defendants could only

be held liable if the individual defendants could be held

liable, the motion to dismiss the above named govern-

mental unit defendants is hereby granted.

*

In conclusion, the Court notes that the entire thrust

of plaintiff’s complaint is a pleading of wrongful con-

viction. Plaintiff seems to assert that the fact of the

existence of a conviction of an innocent person creates

a cause of action under the Civil Rights Act of 1871,

or creates a cognizable constitutional deprivation under

federal question jurisdiction, and that merely because

the fact of wrongful conviction exists, the named defen-

dants must adduce proof that they were not legally

responsible for the conviction and resulting damage. Al-

though deeply sympathetic to plaintiff’s unfortunate con-

viction, the Court finds plaintiff’s theory legally un-

tenable. Accordingly, for the reasons expressed herein,

the complaint must be and hereby is dismissed.

/s/ William J. Lynch

Judge, United States District Court

Dated: Jan. 22, 1976