In the
United States Court of Appeals
For the Seventh Circuit

No. 98-2455

Mario DeGenova,

Plaintiff-Appellee,

v.

Sheriff of DuPage County,

Defendant-Appellant.



Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 7208--James B. Moran, Judge.


Argued December 3, 1999--Decided April 13, 2000




  Before Posner, Chief Judge, and Coffey and Manion,
Circuit Judges.

  Manion, Circuit Judge. Mario DeGenova sued the
Sheriff of DuPage County in his official
capacity, claiming a violation of his
constitutional rights pursuant to 42 U.S.C. sec.
1983. The Sheriff moved to dismiss, arguing that
he had Eleventh Amendment immunity. The district
court denied the motion. The Sheriff appeals and
we affirm.

I.

  Because this appeal comes to us from a motion to
dismiss, we take the following facts from the
complaint and assume them to be true. On October
16, 1996, deputy sheriffs of DuPage County
arrested Mario DeGenova pursuant to an arrest
warrant. DeGenova told the arresting officers
that he suffered from a serious cardiac condition
that required medication. The officers, however,
did not provide DeGenova with medical treatment,
even though they saw him holding his chest and
breathing irregularly. It was not until his
release the following evening that DeGenova was
able to receive medical treatment, and he claims
that, as a result of this delay, he suffered
serious medical harm.

  DeGenova sued the Sheriff of DuPage County in
his official capacity under sec. 1983,/1
alleging that as a result of the Sheriff’s
policies for managing the jail, jail officials
neglected his medical condition and thus violated
his Fourth and Fourteenth Amendment rights. The
Sheriff moved to dismiss the official capacity
claim, arguing that he is a State officer when he
manages the jail. The district court denied the
motion, holding that because the Sheriff is a
county official, and not a State official,
Eleventh Amendment immunity does not apply. The
Sheriff appeals. We have jurisdiction over this
interlocutory appeal based on the collateral
order doctrine. Franklin v. Zaruba, 150 F.3d 682,
684 (7th Cir. 1998).

II.

  The Eleventh Amendment bars suits for damages
against states. U.S. Const. amend. XI. "However,
the Eleventh Amendment does not extend to
counties and similar municipal corporations."
Franklin, 150 F.3d at 684 n. 2. The Sheriff of
DuPage County argues that he is a State officer
when he manages the jail, and thus has Eleventh
Amendment immunity. DeGenova contends, however,
that the Sheriff is a county officer, and thus is
subject to suit. We review this question of law
de novo. Scott v. O’Grady, 975 F.2d 366, 368 (7th
Cir. 1992).

  In McMillian v. Monroe County, Alabama, 520 U.S.
781 (1997), the Supreme Court considered whether
the Sheriff of Monroe County represented the
State or the county when he acted in a law
enforcement capacity, and thus whether the
Sheriff was entitled to Eleventh Amendment
immunity. The Court began by holding that this is
a question of state law, and that it would defer
considerably to the state court’s view on this
issue. McMillian, 520 U.S. at 786. The Court then
considered whether Alabama law provides that the
Sheriff represents the State when he acts in a
law enforcement capacity. The Court reviewed the
Alabama Constitution and Code, and how the
Eleventh Circuit and the Alabama Supreme Court
construed those sources, and held that when an
Alabama Sheriff acts in a law enforcement
capacity, he acts as a State official. Id. at
793. The Court also recognized that since "both
the role of sheriffs and the importance of
counties vary from State to State, there is no
inconsistency created by court decisions that
declare sheriffs to be county officers in one
State, and not in another." Id. at 795.

  We applied McMillian in Franklin, where an
arrestee sued the DuPage County Sheriff in his
official capacity, alleging that the sheriff’s
deputies injured him while he was in their
custody. The DuPage County Sheriff moved to
dismiss the suit based on Eleventh Amendment
immunity, which the district court denied. On
appeal, we considered whether Illinois law
provides that the Sheriff represents the State or
a local governmental entity when he performs law
enforcement duties. Because the Illinois
Constitution states that the Sheriff is a county
officer, and "the Illinois Supreme Court has long
held that sheriffs are county officers,"
Franklin, 150 F.3d at 685, we concluded that the
Sheriff does not act on behalf of the State of
Illinois when he performs general law enforcement
duties. Id. at 686.

  Like Franklin, this case involves the Sheriff of
DuPage County, but our analysis does not end
there. As the Supreme Court emphasized in
McMillian, whether a sheriff acts for the State
or a local entity is not an "all or nothing"
determination. 520 U.S. at 785. Rather, the
question is whether, when the Sheriff acts in a
particular area or on a particular issue, he acts
for the State or a local entity. Id. In Franklin,
we concluded that the Sheriff is not a State
agent when he performs general law enforcement
duties. But we have also recognized that
sometimes the Sheriff may act on behalf of the
State, as when he executes a judicial Writ of
Assistance. Scott, 975 F.2d at 371. Here, we must
decide whether the Sheriff is an officer for the
State or a local entity when he manages the jail.

  First of all, we must determine whether Illinois
law provides that the Sheriff has "final
policymaking authority" over the jail. See
McMillian, 520 U.S. at 785. The Illinois Supreme
Court has determined that according to State law,
the Sheriff’s policies for jail operations "are
independent of and unalterable by any governing
body." Moy v. County of Cook, 640 N.E.2d 926, 929
(Ill. 1994). Moy noted that the Sheriff of each
county is the warden of the county jail, and has
custody over all of its prisoners. Id.; 730 ILCS
sec. 125/2. And we have held that policies
concerning jail operations "are solely under the
supervision" of the Sheriff as "an independently-
elected constitutional officer." Thompson v.
Duke, 882 F.2d 1180, 1187 (7th Cir. 1989).
Therefore, Illinois sheriffs have final
policymaking authority over jail operations.

  We must also determine whether Illinois law
provides that sheriffs are policymakers for the
State or a local entity when they manage the
jail. See McMillian, 520 U.S. at 785. Article
VII, sec. 4(c) of the Illinois Constitution
designates the Sheriff as a county officer. See
Scott, 975 F.2d at 370; Moy, 640 N.E.2d at 929.
This strongly indicates that the Sheriff is an
agent for the county, and not the State. But, as
noted above, while the Sheriff is a county
officer, he may still act on some occasions on
behalf of the State. Illinois statutes make it
clear, however, that when the Sheriff manages the
jail, he is a county officer. For instance, the
county maintains and furnishes the jail, 730 ILCS
sec. 125/20, and bears all of the costs to
maintain prisoners. 730 ILCS sec. 125/5. The
county board builds the jail and provides for the
Sheriff’s reasonable and necessary expenses. 55
ILCS sec. 5/5-1106. And the Sheriff, as warden of
the jail, must notify the county board if he
decides that the jail is insufficient to secure
prisoners. 730 ILCS sec. 125/12.

  The Sheriff cites provisions that require
sheriffs to participate in annual training
programs that a State board has approved, that
authorize the State Department of Corrections to
inspect the jails at least once a year, and that
permit the governor to remove sheriffs who fail
to protect prisoners from a lynch mob. But these
provisions merely authorize the State to regulate
sheriffs in a very tenuous and indirect manner,
and certainly do not outweigh the Illinois
Constitution, the Illinois Supreme Court, and
Illinois statutory provisions that overwhelmingly
designate the Sheriff’s office as a local entity
apart from the State.

  The Sheriff also argues that because we have
held that Illinois sheriffs are not county
employees, by default they must be agents of the
State. We rejected this argument in Franklin, and
do so again today. See Franklin, 150 F.3d at 685
("This argument overlooks a crucial third
possibility that we have found to be dispositive
in other cases--namely, that the sheriff is an
agent of the county sheriff’s department, an
independently-elected office that is not subject
to the control of the county in most
respects.")./2 Suffice it to say that for
purposes of this appeal, he is not a state
employee or officer, and is thus not protected by
the Eleventh Amendment.

  In conclusion, since Illinois sheriffs are
county officers when they manage the jail, the
Eleventh Amendment does not bar this official
capacity suit. We AFFIRM.



/1 An official capacity suit is the same as a suit
against the entity of which the officer is an
agent. McMillian v. Monroe County, Alabama, 520
U.S. 781, 785 n. 2 (1997).

/2 The Sheriff also contends that he is not liable
because the Sheriff’s Department is not a suable
entity under Illinois law. "The federal courts
look to state law to determine if a defendant is
amenable to suit. Fed. R. Civ. P. 17(b). To be
sued in Illinois, a defendant must have a legal
existence, either natural or artificial."
Magnuson v. Cassarella, 812 F.Supp. 824, 827
(N.D. Ill. 1992). According to Illinois law, the
Sheriff is an independently-elected
constitutional officer. Ill. Const. Art. VII,
sec. 4(c); Ryan v. DuPage County, 45 F.3d 1090,
1092 (7th Cir. 1995); Thompson, 882 F.2d at 1187.
"Within the sheriff’s prescribed range of
activity, he and not some legislative-type body
is at the apex of the governmental pyramid."
Hvorcik v. Sheahan, 847 F.Supp. 1414, 1417 n. 7
(N.D. Ill. 1994). Therefore, the Sheriff’s office
has a legal existence separate from the county
and the State, and is thus a suable entity. See
Franklin, 150 F.3d at 685; See also Carver v.
Condie, 169 F.3d 469, 472 (7th Cir. 1999).

  In Carver, we also recognized that "the sheriff
only has whatever funds the county chooses to
give his office in any given year." 169 F.3d at
473. This begs the question whether a judgment
against the sheriff’s office is collectible. On
remand, the district court searched for an answer
but found "no Illinois statutory or case law
instructive." Carver v. Condie, No. 94 C 2240,
2000 WL 204240 at *11 (N.D. Ill., Feb. 15, 2000).
We agree that this is a matter of first
impression for Illinois law, and at this juncture
we need not intrude on that prerogative of the
Illinois state courts. See id. at *11-*12.
