
    Cynthia DORSEY, Plaintiff, v. Dwain GIVENS, County of Will and Will County Adult Detention Center and Sheriff of Will County, Defendants.
    No. 99 C 7933.
    United States District Court, N.D. Illinois, Eastern Division.
    June 5, 2001.
    
      Blake Wolfe Horwitz, Law Office of Blake Horwitz, Chicago, IL, for plaintiff.
    Dwain Givens, Joliet, IL, pro se.
    Gerald Haberkorn, Robert Hill Smelt-zer, Michael J. Sturino, Lowis & Gellén, Chicago, IL, for defendants.
   MEMORANDUM OPINION AND ORDER

MORAN, Senior District Judge.

Plaintiff, who was incarcerated in the Will County Adult Detention Center, sues Givens, a correctional officer, and the Will County Sheriff, for alleged improper sexual touching. Givens denies the allegations and Sheriff Ward (Sheriff) is not at all sure Givens molested plaintiff. It is undisputed, however, that sexual misconduct involving a prisoner is both a violation of work rules and a crime; that the Sheriff initiated an investigation immediately after being advised of possible misconduct; that Givens was terminated and that he was thereafter convicted of five counts- of Custodial Sexual Misconduct, none of which involved plaintiff. The Sheriff has moved for summary judgment and, in a rather creative and practical approach, the parties have chosen to present a legal issue based upon a stipulation of facts. .

The issue here is not whether or not Givens was acting under color of law, a federal question. Nor is it whether the Sheriff has respondeat superior liability for wilful and wanton misconduct by Givens. See 745 ILCS 10/2-202 and 10/2-109; see also 745 ILCS 10/8-101 (the suit was filed well over a year after the alleged incidents). Rather, it is whether or not Givens would be entitled to indemnification pursuant to 745 ILCS 10/9-102, a question of Illinois law. The parties assume that Givens has no deep pockets, if he has any pockets at all, and they are therefore seeking a determination of whether or not the Sheriff will have to pay any judgment against Givens, assuming he is liable. The issue, then, is whether the stipulated conduct of Givens was arguably within the scope of his employment (the conduct is stipulated solely for the purposes of this motion). That conduct is four occasions of a sexual remark or grabbing or fondling of plaintiffs breast and/or buttock while she was clothed.

The alleged misconduct was, without question, under color of law, as Givens was acting as a custodial correctional officer on each occasion and used the power of his position to engage in the misconduct. The Seventh Circuit has also been somewhat hospitable to state law respondeat superi- or claims, and even indemnification claims, when law enforcement officers have used the power of their positions to advance their private agenda. Although the defendant did not contest the assertion that the officer was acting within the scope of his employment in Kolar v. County of Sangamon of State of Illinois, 756 F.2d 564 (7th Cir.1985), the public entity did dispute that claim in Hibma v. Odegaard, 769 F.2d 1147, 1153 (7th Cir.1985) and Coleman v. Smith, 814 F.2d 1142, 1148-49 (7th Cir. 1987). In Hibma, decided under Wisconsin law although that does not appear to be determinative, the county was liable for the acts of officers who conducted investí-gations, issued reports and testified, all for the purpose of concealing their own burglaries, because they were doing, albeit improperly and for their own purposes, the type of thing law enforcement personnel do. In Coleman, indemnification was granted to defendants who fired the plaintiff and then had him arrested to squelch an investigation into a corruption scheme in which they were deeply implicated. Firings by the mayor and arrests by the chief of police were a natural part of or incident to the service employment.

There is much to commend that view of scope of employment. Here the Sheriff had clothed Givens with the power to act as a custodian, with physical control over prisoners, and it could be anticipated that he would speak to and touch them in the course of his performance of his duties. If he used unwarranted force, the Sheriff would in all probability be liable. Krieger v. Village of Carpentersville, 8 Ill.App.3d 243, 247-48, 289 N.E.2d 481, 483 (2d Dist. 1972). Sexual molestation and a physical beating can both be manifestations of a desire to exercise domination and power. Restatement (Second) of Agency, which the Illinois courts have often relied upon, recognizes in section 231, Comment a, that minor crimes committed in the prosecution of the business can reasonably be anticipated and in section 245 that an unauthorized use of force can lead to the master’s liability if the act was not unexpectable in view of the duties of the servant. It is not unexpectable that the exercise of officially sanctioned coercive power by a male over a female may sometimes be abused. See Mary M. v. City of Los Angeles, 54 Cal.3d 202, 213-14, 285 Cal.Rptr. 99, 814 P.2d 1341 (Cal.1991).

At the same time, we recognize that a federal court is but a surrogate state court in these circumstances and we are enjoined to be cautious in developing legal concepts that state appellate courts cannot review. See Holtz v. J.J.B. Hilliard W.L. Lyons, Inc., 185 F.3d 732, 750 (7th Cir. 1999). The Illinois courts have repeatedly rejected sexual misconduct as being within the ambit of scope of employment, emphasizing that such conduct is solely for the personal benefit of the transgressor. In Deloney v. Board of Education of Thornton Township, 281 Ill.App.3d 775, 217 Ill. Dec. 123, 128-31, 666 N.E.2d 792, 797-800 (1996), a truant officer had sexual relations with a 16-year-old student. The court, in rejecting any duty on the part of the school district to defend, distinguished excessive force cases which are capable of being characterized as an extension of the police function. The public employment provided the opportunity for misconduct, but that conduct could not be deemed an extension of his responsibilities. Excessive force can have a dual purpose — to make an arrest, to punish, to extract a confession (see Wilson v. City of Chicago, 120 F.3d 681, 685 (7th Cir.1997) — but sexual misconduct is solely for personal gratification).

Deloney followed Randi F. v. High Ridge YMCA, 170 Ill.App.3d 962, 120 Ill.Dec. 784, 524 N.E.2d 966 (1988). Bates v. Doña 150 Ill.App.3d 1025, 104 Ill.Dec. 191, 502 N.E.2d 454 (1986), and Webb by Harris v. Jewel Companies, Inc., 137 Ill.App.3d 1004, 92 Ill.Dec. 598, 485 N.E.2d 409 (1985), all of which held that sexual misconduct was outside the scope of employment. Each is distinguishable to a degree: Webb and Randi involved private actors, and in Bates the crime was rape. In Webb, however, the court specifically noted that sexual assault, whether rape or fondling, had no relation to the business of the employer. Webb, 92 IlLDec. at 601-02, 485 N.E.2d at 412-13. Then, in Wright v. City of Danville, 174 Ill.2d 391, 221 Ill.Dec. 203, 675 N.E.2d 110 (1996), the Illinois Supreme Court held that city commissioners who tied the settlement of a voting rights case to their retention as city em-

ployees were acting beyond the scope of their employment. The court, relying upon Webb and Deloney, explained that the misconduct was solely for the commissioners’ personal benefit and that the public employment provided the opportunity for acts that were not an extension of their legitimate functions. Wright, 221 Ill.Dec. at 210-212, 675 N.E.2d at 117-119.

Settlement of the voting rights case was the type of thing commissioners do, even though done improperly. The approach by the Illinois Supreme Court in Wright conflicts with that of the Seventh Circuit in Coleman and Hibma, both decided about a decade before. In light of Wright, Delo-ney, Randi F. and Bates, with their emphasis on personal benefit, we do not believe we can predict that the Illinois courts would conclude that the sexual misconduct alleged here is within the scope of employment, justifying indemnification. The motion for summary judgment is granted.  