United States District Court, Northern District of Illinois, E.D
February 20, 1974
ERIC R. EHN, PLAINTIFF,
ELLIOT PRICE, DEFENDANT.
The opinion of the court was delivered by: Bauer, District Judge.
MEMORANDUM OPINION AND ORDER
This cause comes on the defendant's motion to dismiss the
This is an action seeking to redress the alleged deprivation of
plaintiff's civil rights guaranteed by the United States
Constitution. The plaintiff's complaint is somewhat obfuscated
and at times conclusory without providing an adequate factual
basis for such conclusions.
The factual basis of the complaint appears to be the following.
Plaintiff was convicted of a crime in the Circuit Courts of the
State of Illinois and was sentenced to a term of not less than
three or more than ten years in the Illinois State Penitentiary.
On or about September 19, 1972, defendant Elliot Price, an
attorney in Chicago, was appointed by order of a state court to
represent plaintiff for purposes of an appeal to the Illinois
Appellate Court, First District. Apparently plaintiff's pending
appeal has not been finally resolved by the Illinois Appellate
Court and plaintiff attributes this failure to defendant's
"tactics of delayment and unlawful illegal stalling" contrary to
the Sixth and Fourteenth Amendments. Plaintiff has concluded,
therefore, that he has been "wholly denied and refused assistance
of competent counsel."
The defendant, in support of his motion to dismiss, contends
that the Court does not have jurisdiction over the subject matter
of the instant complaint*fn* or in the alternative the complaint
fails to state a claim upon which relief can be granted.
It is the opinion of this Court that both it lacks subject
matter jurisdiction over the instant action and the plaintiff has
failed to state a claim upon which relief can be granted.
I. THIS COURT LACKS JURISDICTION OVER THE SUBJECT MATTER OF THE
It is clear from the caption of this action that there is no
diversity of citizenship between the parties since both plaintiff
and defendant are residents of the State of Illinois. Absent the
requisite diversity, jurisdiction may be conferred upon a federal
court only if an essential element of plaintiff's claim alleged a
federal question such as a deprivation of a right or immunity
created by the Constitution or the laws of the United States.
Campo v. Niemeyer, 182 F.2d 115 (7th Cir. 1950).
Federal jurisdiction could exist solely if the complaint is
read to allege a deprivation by defendant of a constitutionally
secured right, privilege or immunity by plaintiff cognizable
under the Civil Rights Act, 42 U.S.C. § 1983, 1985; therefore,
jurisdiction could exist by reason of the jurisdictional
counterpart to the Civil Rights Act, 28 U.S.C. § 1343.
However, 42 U.S.C. § 1985 applies to conspiracies and plaintiff
does not allege or even intimate any conspiracy involving
defendant. Section 1983 provides a civil remedy for the
deprivation of constitutional and civil rights but only where the
deprivation is alleged to have occurred solely and exclusively
under "color of state law." See Duzynski v. Nosal, 324 F.2d 924
(7th Cir. 1963); Campo v. Niemeyer, supra; Huey v. Barloga,
277 F. Supp. 864 (N.D. Ill. 1967). Section 1983 does not protect
individuals against individual invasion of constitutional rights
and the failure to allege that the conduct of the defendant which
is the subject matter of the complaint was done under "color of
state law" negates the existence of any jurisdictional basis
under 28 U.S.C. § 1343. Campo v. Niemeyer, supra; Vance v.
Robinson, 292 F. Supp. 786 (W.D.N.C. 1968); Pugliano v. Staziak,
231 F. Supp. 347 (W.D.Pa. 1964).
Plaintiff does not allege that defendant was a public official
or that his conduct was taken under color of state law. Nor does
the fact that defendant was appointed as counsel for plaintiff on
by a state court make him an officer of the state for purposes of
42 U.S.C. § 1983. Brown v. Joseph, 463 F.2d 1046 (3rd Cir. 1972);
Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968); Vance v.
Robinson, supra; Reinke v. Richardson, 279 F. Supp. 155 (E.D.
Even if this Court were to assume that the plaintiff has been
deprived of a constitutionally secured right, a liberal
construction of the complaint fails to show the necessary
requisites for subject matter jurisdiction in this Court.
II. PLAINTIFF HAS FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN
Even if it could be assumed that the Court was vested with
jurisdiction over the subject matter of this complaint, it is
clear that plaintiff has failed to allege a claim upon which
relief can be granted.
If plaintiff has any federally cognizable claim for relief, it
must be pursuant to 42 U.S.C. § 1983 which provides a substantive
civil remedy for the deprivation of constitutionally protected
rights where the purported deprivation is alleged to have taken
place exclusively under "color of state law". See Duzynski v.
Nosal, supra; Campo v. Niemeyer, supra.
Section 1983 requires that two essential elements be satisfied
to state a claim: (1) the deprivation of a constitutionally
secured right, and (2) deprivation of such right under color of
The thrust of plaintiff's claim for damages against defendant
is found in Paragraphs 2, 5 and 8 wherein the plaintiff seeks
damages for defendant's "total incompetency" and prays for
damages against defendant as "a deterrent to further ignorance
and illegal neglect of his legal duties as an attorney at law, in
the State of Illinois". This language reveals that plaintiff's
alleged claim is for malpractice against his appointed counsel
for a lack of diligence in prosecuting plaintiff's state appeal.
Clearly, such a claim is not based upon a deprivation of a right
secured under 42 U.S.C. § 1983 and appears to be no more than a
tort claim for malpractice which, absent diversity of
citizenship, should not be entertained in a federal district
court. Fletcher v. Hook, 446 F.2d 14 (3rd Cir. 1971); Smith v.
Clapp, 436 F.2d 590 (3rd Cir. 1970); Vance v. Robinson, supra.
Further, the fact that the defendant, a private attorney, was
appointed as counsel for plaintiff on appeal does not make
defendant's acts "under color of state law" for the purposes of
42 U.S.C. § 1983. Brown v. Joseph, supra; Mulligan v.
Schlachter; supra; Vance v. Robinson, supra; Reinke v.
Richardson, supra. Thus, for purposes of 42 U.S.C. § 1983,
defendant's conduct amounts only to individual, private action
and an attorney's individual invasion of a constitutional right
fails to state a claim upon which relief can be granted by a
federal district court. Sarelas v. Porikos, 320 F.2d 827 (7th
Cir. 1963); Campo v. Niemeyer, supra.
On one hand if this Court were to allow a federal civil rights
suit against a court appointed attorney from unsatisfied clients
there would be a chilling effect upon a defense counsel's
tactics. Defense counsel would be caught in a delicate conflict
of protecting himself and representing his client.
Accordingly, it is hereby ordered that the defendant's motion
to dismiss is granted.