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989 F2d 502 Hylok v. Dickey

989 F.2d 502

Dale HYLOK, Plaintiff-Appellant,
v.
Walter DICKEY, Defendant-Appellee.

No. 89-3075.

United States Court of Appeals, Seventh Circuit.

Submitted Feb. 16, 1993.*
Decided March 22, 1993.

NOTICE: Seventh Circuit Rule 53(b)(2) states unpublished orders shall not be cited or used as precedent except to support a claim of res judicata, collateral estoppel or law of the case in any federal court within the circuit.

Before CUMMINGS, CUDAHY and MANION, Circuit Judges.

ORDER

1

Dale Hylok, a Wisconsin state prisoner, brought this civil rights action against Walter Dickey, formerly the Administrator of the Division of Corrections, Wisconsin Department of Health and Human Services, alleging that his Fourteenth Amendment right to due process was violated when he served two years and nine months for a two-year sentence, and seeking compensatory and punitive damages. The district court granted summary judgment in favor of Dickey, and this appeal followed.

2

Hylok failed to state whether Dickey was sued in an official or personal capacity, a prerequisite to an action under 42 U.S.C. § 1983. Hill v. Shelander, 924 F.2d 1370, 1372 (7th Cir.1991). If, as it appears from his appellate brief, Hylock intended an official capacity suit, Dickey is immune from liability under the Eleventh Amendment. Hafer v. Melo, 112 S.Ct. 358, 361-62 (1991). But if Hylok intended a personal capacity suit, his complaint does not allege that Dickey played a personal role in the alleged constitutional violation. Rascon v. Hardiman, 803 F.2d 269, 273 (7th Cir.1986). There is no derivative liability under § 1983. Pacelli v. deVito, 972 F.2d 871, 878 (7th Cir.1992).

3

AFFIRMED.

*

After preliminary examination of the briefs, the court notified the parties that it had tentatively concluded that oral argument would not be helpful to the court in this case. The notice provided that any party might file a "Statement as to Need of Oral Argument." See Fed.R.App.P. 34(a); Circuit Rule 34(f). No such statement having been filed, the appeal has been submitted on the briefs and record