personal check for $300.00 as compensation for such
representation and attaches to his complaint a photocopy of such
a check. Defendant William J. Bauer, States Attorney in DuPage
County, is charged only with "not complying with the rules of his
office, and allowing this illegal action to take place * * *."
Plaintiff demands $20,000 from each defendant.
Plaintiff also alleges that his present incarceration results
from a 1962 conviction for burglary, the 1960 case having ended
in a conviction on plaintiff's plea of guilty but imposition of
sentence having been withheld and plaintiff placed on probation.
No defendant is charged with involvement in this later
conviction, however, and consequently none could be liable to
plaintiff for any damages arising therefrom. Accordingly, the
Court assumes that, in the case at bar, plaintiff seeks damages
solely for wrongs allegedly done to him in 1960.
Defendants have moved to dismiss, but they do not contend that
the Court lacks jurisdiction to adjudicate this case even though
the complaint itself does not state any jurisdictional basis.
There is here no diversity inasmuch as all of the parties are
Illinois citizens, but since plaintiff seeks only damages, the
suit may be presumed to arise under section 3 of the Civil Rights
Act, 42 U.S.C. § 1983. Therefore the Court has jurisdiction,
28 U.S.C. § 1343, despite the absence of diversity. Ortega v. Ragen,
216 F.2d 561 (7th Cir. 1954), cert. denied, 349 U.S. 940, 75
S.Ct. 786, 99 L.Ed. 1268 (1955).
Defendants argue that the cause must be dismissed because they
are judicial officers all of whom are immune from liability in
Civil Rights Act cases. In support of their motion, defendants
have cited several cases which hold that police officers and
prosecutors, acting in their official capacity, are not liable
under the Civil Rights Act for wrongful arrest and malicious
prosecution, and several other decisions affirming that a judge
is similarly not liable for allegedly abusive exercise of his
judicial powers even though his conduct is malicious or
oppressive. These cases, however, are inapplicable here.
In the instant complaint, plaintiff charges Judge Abrahamson
with conditioning the appointment of the Public Defender to
represent plaintiff upon the latter's paying to the Defender a
fee he was prohibited from accepting,*fn1 and Douglas is accused
of accepting that fee. Such illegal conduct can hardly be
described as a judicial function. Judicial officers may not
escape liability for the commission of illegal acts merely by
committing them in the courthouse. Cf. Yates v. Village of
Hoffman Estates, 209 F. Supp. 757 (N.D.Ill. 1962).
Even though the defendants' alleged conduct was reprehensible
if it occurred, and despite the defendants lack of immunity
therefor, the motion to dismiss must be granted. Taking the
complaint in the light most favorable to the plaintiff, and
assuming that plaintiff's claim is asserted under the Civil
Rights Act, it must be dismissed because plaintiff has failed to
aver the deprivation of any constitutionally protected right,
privilege or immunity.
The plaintiff was entitled to free representation by the
Defender if he was found to be indigent. But someone else is
alleged to have paid for the representation he received.
Moreover, plaintiff admits that Judge Abrahamson ruled that he
was not indigent. Services of the Public Defender are available
without cost only to those who the court finds are financially
unable to employ counsel. Ill.Rev.Stat. 1959, ch. 34, sec. 5604.
Plaintiff was not deprived of any constitutional rights because
the Public Defender, allegedly after accepting a fee paid by
another, did represent plaintiff.
Nor has he been damaged by the judge who purportedly sanctioned
these acts nor by the prosecuting attorney who is said to have
stood by and watched.
The cause is dismissed for failure of plaintiff to state a
claim for which relief may be granted. An order consistent with
the above will be entered this day.