construed to be against them in their official capacity” (Stevens
v. Umsted, 131 F.3d 697, 706 (7 Cir. 1997), cited and quoted at
Mem. 6 n.2). But that argument stops short of recognizing that
Stevens itself then goes on (id. at 707) to acknowledge that such
presumptive treatment is not at all conclusive and that it is
necessary to “consider the manner in which the parties have
treated the suit” (id., quoting Conner v. Reinhard, 847 F.2d 384,
394 n.8 (7 Cir. 1988)).? And in this case the inquiry is
answered definitively by Bennett's modest demand for $10 million
in punitive damages, which cannot of course be extracted from the
state--an unequivocal and conclusive demonstration that Pernecke
and her codefendants are being sued in their individual

capacities rather than as proxies for the state.‘

3 Just a few minutes' research has disclosed at least two
other cases that temper such presumptive treatment in the same
way: Armstrong v. Squadrito, 152 F.3d 564, 580-81 (7TM Cir.

1998) and Brokaw v. Mercer County, 235 F.3d 1000, 1013 n.7 (7TM
Cir. 2000). There may well be more authority that similarly
dilutes the proposition urged by attorney Garcia, but there is no
need to expand the search to see if that is the case.

* It must be said in candor that the presumption first
quoted from Stevens, which found its origin in Kolar v. Sangamon
County, 756 F.2d 564, 568 (7 Cir. 1985), is itself dubious. As
Hafer and other cases make clear, it is always necessary to
allege that state officials are acting under color of law to
bring a Section 1983 lawsuit against them in the first place. To
turn that essential allegation around to disfavor a plaintiff,
even presumptively, does not make much sense--in real world terms
the norm would seem to cut the other way. But in all events the
more sensible approach is to look at the nature of the complaint
(as Stevens and other cases (see n. 3) have gone on to do) to see
which alternative seems more logical. Moreover, it is
particularly troublesome to apply any adverse presumption against

4


that score the Illinois General Assembly has expressly designated
the action about which Bennett complains to be a prosecutorial
function--and that being the case, once again absolute immunity
shields Pernecke.
Conelusion

For the reasons stated in the second portion of this
opinion, Bennett's suit against Pernecke cannot be sustained
because she is protected by absolute prosecutorial immunity.
Accordingly Pernecke's motion is granted on that ground, and she
is dismissed as a defendant. But it will be said once more that
her counsel should take heed of the bootlessness of the leadoff
argument that counsel chose to advance in both the dismissal

motion and its supporting memorandum.

Coe Mn. DE cato

Milton I. Shadur
Senior United States District Judge

Date: October 2, 2003



knocking down that straw man does the Memorandum get down to
reality: In addition to protecting the state and its agencies

themselves, Eleventh Amendment immunity attaches to state

employees who are sought to be sued qua state--that is, in their
official capacities. In that respect, it has been more than a
decade since a unanimous Supreme Court in Hafer v. Melo, 502 U.S.
21 (1991) acted to correct the kind of muddied thinking that
Pernecke's counsel has exhibited.*? That opinion should be
mandatory reading for all persons in the State's Attorney's
Office and in all other public law offices, but for present
purposes it is enough to quote its final substantive paragraph
(id. at 31):

We hold that state officials, sued in their individual

capacities, are “persons” within the meaning of §1983.

The Eleventh Amendment does not bar such suits, nor are

state officers absolutely immune from personal

liability under §1983 solely by virtue of the

“official” nature of their acts.

Attorney Garcia seeks to extricate himself from the grip of
that principle by pointing to the facts (1) that Bennett's First
Amended Complaint (“FAC”) does not say that he is suing Pernecke
individually and (2) that our Court of Appeals has from time to

time opined that “{a] §1983 complaint that fails to specify the

capacity in which the defendants are being sued is ordinarily

2 Indeed, it should scarcely have been necessary for the
Supreme Court to address the issue in Hafer, for the matter was
really settled almost three decades ago in Scheuer v. Rhodes, 416
U.S. 232, 237-38 (1974).



It is regrettable to have had to engage in what under the
circumstances of this case will turn out to be a digression. But
the very label of a “Special Projects and Assignments” division
suggests some level of expertise, and its members surely ought to
know better. Here the message is plain: Either eliminate this
type of groundless argument entirely from the State's Attorney's
analytical arsenal or, if the State's Attorney feels it should be
retained for some purposes, be sure to limit its use to
situations (unlike the present one) in which the notion of
Eleventh Amendment immunity makes at least arguable sense.

But with all of that having been said, Pernecke fares far
better on the other contention--one of absolute prosecutorial
immunity--that has been submitted on her behalf. That doctrine
plainly calls for granting her dismissal as a defendant, and it
really requires little discussion to do so.

After Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976) made
it clear that no prosecutor may be sued for activities that are
“intimately associated with the judicial phase of the criminal
process, functions to which the reasons for absolute immunity
apply with full force,” the Supreme Court has gone on to refine

the analysis in such cases as Burns v. Reed, 500 U.S. 478 (1991)

a pro se litigant, who can scarcely be expected to be aware of
any need to make specific what should be obvious from his or her
complaint and whose pleading, in addition, is entitled to the
generous reading mandated by Haines v. Kerner, 404 U.S. 519, 520-
21 (1972) (per curiam).


Mite Ones Form (06999

United States District Court, Northern District of Illinois

Name of Assigned Jud; i Sitting Judge if Othe
or Magistrate Judge Milton I. Shadur than Assigned Judge
CASE NUMBER 03 C 5071 DATE 10/2/2003
CASE Allen Bennett vs. Supt. Terry Hillard, et al
TITLE
[In the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (6) state briefly the nature
MOTION: of the motion being presented.]
Defendant Pernecke’s motion to dismiss
DOCKET ENTRY:
09) a Filed motion of [ use listing in “Motion” box above.]
2) o Brief in support of motion due wae
@) a Answer brief to motion due. . Reply to ariswer brief due
(4) a Ruling/Hearing on set for
(5) Oo Status hearing[held/continued to] [set for/re-set for}.on.2-- Set for at :
© Qa Pretrial conference(held/continued to] [set forlte-set # for] ‘on set for at .
1) oO Trial[set for/re-set for] on at
(8) a [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]
OFRCP4(m) CLocal Rule 41.1 CIFRCP4i(a(1) [ FRCP41(a)(2).
ao wf [Other docket entry] Enter Memorandum Opinion and Order. For the reasons stated in the second
portion of this opinion, Bennett’s suit against Pernecke cannot be sustained because she is protected by
absolute prosecutorial immunity. Accordingly Pernecke’s motion is granted on that ground, and she is
dismissed as a defendant.
(11) @ (For further detail see order attached to the original minute order.]
No notices required, advised in open court. +», Document ”
., * Number .-
No notices required, mytiber oF notices
wv | Notices mailed by judge’s staff.
Notified counsel by telephone.
Docketing to mail notices. auf
Mail AO 450 form. uno | . =
Copy to judge/magistrate judge. y tsi ‘a Sh
1 th Ht. id -
urtroo! - if
sv Som 2 190-69:
initials Hosp Tac
de Geet ete ning det its



and Buckley v. Fitzsimmons, 509 U.S. 259 (1993). Both actions

that the FAC has ascribed to Pernecke plainly fall on the
immunity side of the divide marked out by those cases.

Thus FAC 446 alleges:

On October 15, 2002, the defendant Pernecke introduced

the arresting police officer inconnection with the

78-C-760 case in an attempt to impress upon the trial-

court that this case was a conviction.
Although Bennett's use of the word “introduced” in that
allegation is somewhat unclear, it becomes obvious from reading
FAC 947 and Ex. 7(a) (which is the Order of Commitment and
Sentence to Illinois Department of Corrections) that what is
referred to in FAC 446 is the sentencing hearing that stemmed
from Bennett's April 11, 2002 conviction in a jury trial (FAC
942) --Ex. 7 shows that Bennett's sentence was imposed on the very
same October 15, 2002 date when Pernecke is said to have engaged
in the complained-of conduct. That activity was plainly
prosecutorial in its nature, and hence it was absolutely immune.

As for Bennett's remaining claim against Pernecke, FAC 948,
49 and 54 charge her with having lodged a false Official
Statement of Facts with the Department of Corrections in March
2003. In that regard the preparation and transmittal of such
statements by State's Attorneys is mandated by Illinois law (730

ILCS 5/5-4-1(d)), as to which Dennis E. v. O'Malley, 256

I1l.App.3d 334, 337, 628 N.E. 2d 362, 365 (1% Dist. 1993)

explains the statutory requirement and its use. In short, on



IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ALLEN BENNETT,

Plaintiff,

MOPUIrel
ie perso

)
)
)
)
Vv. ) No. 03 C 5071
)
SUPT. TERRY HILLARD, et al., )

)

)

- 3 2003
Defendants. oct
MEMORANDUM OPINION AND ORDER
Assistant State's Attorney Joan Pernecke (“Pernecke”),

represented by Assistant State's Attorney Stephen Garcia as a
member of the “Special Projects and Assignments” division of Cook
County State's Attorney Richard Devine's Office, has moved to be
dismissed from the 42 U.S.C. §1983 (“Section 1983”) action that
has been brought against her and three other defendants by prison
inmate Allen Bennett (“Bennett”). Before this memorandum opinion
and order turns to the ultimately successful argument that has
been advanced in support of the motion, something must be said
about the near frivolous argument with which the motion and its
supporting memorandum begin.

Sensible litigation strategy calls for leading from strength
(lawyering is not after all like musical composition, which
sometimes creates an effect by beginning pianissimo and building

through a crescendo'). Yet after outlining the nature of

1 In that respect, the most familiar example (unfortunately
hackneyed through overexposure) is Ravel's Bolero.



Bennett's claims against Pernecke, attorney Garcia begins the
supporting memorandum's legal discussion by spending fully one-
fourth of the remaining ten pages on the unsound contention that
Pernecke is absolutely immune from suit under the Eleventh
Amendment .

Maybe the best demonstration of the lack of thought involved
in making that argument is contained in its final paragraph (Mem.
6):

There are no allegations contained in plaintiff'' [sic]

complaint that ASA Pernecke was acting other than in

her official capacity in the prosecution of his

criminal matter. Therefore, plaintiff's claims against

ASA Pernecke in her official capacity are

jurisdictionally barred by the Eleventh Amendment .

That impermissibly confuses the capacity in which Pernecke acted

(official) with the capacity in which she is being sued

(individual). That is of course nonsensical:

1. If Pernecke were not acting in her official
capacity, she would not be a “state actor” and therefore
could not be sued under Section 1983 to begin with.

2. Yet as attorney Garcia would have it, the very fact
that lets Bennett into the federal courthouse door--conduct
by Assistant State's Attorney Pernecke acting officially,
and hence under color of state law--simultaneously forces
Bennett out of that door just because Pernecke acted
officially.

Only after painstakingly setting up and then purportedly

2