United States District Court, Northern District of Illinois, E.D
February 12, 1982
IVIE CLAY, PLAINTIFF,
SAUL FRIEDMAN, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Ivie Clay ("Clay") has sued several public defenders, their
supervisors, the Cook County Office of the Public Defender and
the Cook County Guardian ad Litem under 42 U.S.C. § 1983
("Section 1983") based on the allegedly incompetent
representation provided her in a criminal proceeding. Clay now
seeks leave to file a Second Amended Complaint (the "Complaint").
For the reasons stated in this memorandum opinion and order the
Court grants such leave, dismisses one defendant and certain
claims against another defendant and orders further briefing on
Individual Public Defenders
Within the past two months the Supreme Court has rejected the
concept that public defenders, in their lawyering activities, act
"under color" of state law for Section 1983 purposes. Polk
County v. Dodson, ___ U.S. ___, 102 S.Ct. 445, 70 L.Ed.2d 509
(1981). Nonetheless Clay maintains she can sustain her action
against the individual public defenders because:
(1) They are assigned excessive caseloads by the
State and are thus prevented from attending to their
(2) State action was involved in the hiring of
incompetent lawyers, the failure to train them
adequately and the failure to terminate them when
their incompetence became evident.
(3) Proper representation is prevented by the
State's established method of transferring cases
among public defenders.
(4) Individual public defenders became de facto
prosecutors by failing to act as adversaries and
instead seeking to find Clay guilty.
(5) One individual public defender conspired with
Clay's first three contentions claim in essence that because
the State caused the malpractice, the public defenders
themselves became state actors. Polk County is quite clear in
rejecting that sort of argument.
Polk County's main thrust was that because public defenders
are lawyers they owe a duty to their defendant clients and are
the State's adversary. State employment is not sufficient to
tinge them with the color of state law.
Indeed Polk County dealt specifically with the first aspects
of Clay's position when it said, id. at 451:
First, a public defender is not amenable to
administrative direction in the same sense as other
employees of the State. Administrative and
legislative decisions undoubtedly influence the way a
public defender does his work. State decisions may
determine the quality of his law library or the size
of his caseload. But a defense lawyer is not, and by
the nature of his function cannot be, the servant of
an administrative superior. Held to the same
standards of competence and integrity as a private
lawyer, see Moore v. United States, 432 F.2d 730
(CA3 1970), a public defender works under canons of
professional responsibility that mandate his exercise
of independent judgment on behalf of the client. "A
lawyer shall not permit a person who recommends,
employs, or pays him to render legal services for
another to direct or regulate his professional
judgment in rendering such legal services." DR
5-107(B), ABA Code of Professional Responsibility
That passage explicitly rejects Clay's first three
Polk County did note a small exception by pointing out the
States' constitutional obligation to "respect the professional
independence of the public defenders whom it engages" (id.). If
a state were "to control their action in a manner inconsistent
with the principles on which Gideon rests"*fn1
(id. at 452,
emphasis added) — that is, to control (not simply affect in
collateral ways) how a public defender carried out his client's
defense — state action could exist. But Clay has pleaded only
administrative actions (akin to the caseload and library examples
posed by the Supreme Court) that hampered the public defender's
presentation of a defense. That is insufficient under Polk
Clay's fourth contention is somewhat different. Here the public
defender allegedly acted under color of state law because of:
his determination that it was in plaintiff's and the
State's interest that she be convicted and
incarcerated and that because of this belief
"Friedman acted in concert with and on behalf of the
State in its prosecution of Clay. . . ."
In essence Clay asserts that in deciding not to act as an
adversary, a public defender becomes a normal state employee.
Again Clay misses the thrust of Polk County: Exercise of the
lawyering function by public defenders does not implicate state
action. Section 1983 liability cannot stem from that exercise,
though it results in an improvident guilty plea or other
consequence adverse to the client.*fn2
Clay's final argument, charging one of the public defenders
with acting in concert with the prosecution, is however
unaffected by Polk County. On that claim the state action
component flows from the prosecutor's office. Public defenders,
like any other private person, act "under color" of law when they
are willful participants in a joint action with state agents.
Dennis v. Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-87, 66
L.Ed.2d 185 (1980). By definition prosecutors are state actors,
and a public defender who colludes with such a state official is
caught in the Section 1983 net as well.
True enough a plaintiff must do more than present a bald
allegation of conspiracy. Briscoe v. La Hue, 663 F.2d 713,
722-23 (7th Cir. 1981). But Clay has met that requirement. She
alleges that public defender Friedman made a plea agreement with
the prosecutor and acted in concert with the prosecutor to
conceal the true nature of the agreement from Clay and the court.
That factual statement suffices to support a conspiracy
Two individual public defenders, Saul Friedman and Roger
Harris, are named as defendants. Because there is no conspiracy
allegation as to Harris he is dismissed from this action.
Friedman must remain a defendant, but only as to the allegation
that he acted in concert with the prosecutors.
Clay sues three other groups of defendants: supervisory
personnel in the Office of the Public Defender, that Office
itself (more likely the County of Cook, for if the Office is not
a legal entity it is not suable as such) and Clay's appointed
Guardian ad Litem. None of those defendants have been called upon
to address the applicability (if any) of Polk County to them.
They are directed to file memoranda addressed to that subject and
any other issues posed by the Second Amended Complaint on or
before February 26, 1982 (of course they need only cross-refer
to, not repeat, arguments already asserted in earlier briefs and
still applicable). Clay shall submit a reply on or before March
Clay is given leave to file her Second Amended Complaint.
and certain claims as to defendant Friedman are dismissed. Briefs
are ordered to be submitted on the remaining issues in accordance
with the schedule just designated. This Court will then deal with
the other pending motions. This action is set for a status report
April 9, 1982 at 9:15 a.m.
SUPPLEMENTAL MEMORANDUM OPINION AND ORDER
Ivie Clay ("Clay"), claiming she was provided incompetent
representation in a criminal proceeding, has sued several public
defenders, their supervisors, the Cook County Office of the
Public Defender and the Cook County Guardian ad Litem under
42 U.S.C. § 1983 ("Section 1983"). This Court's February 12, 1982
memorandum opinion and order (the "Order") dismissed Clay's
individual "state action" claims against public defenders Roger
Harris and Saul Friedman ("Friedman"), but retained a conspiracy
claim against Friedman. Upon further consideration, however, this
supplemental opinion determines that Friedman too must be
dismissed from this action in its entirety.
Polk County v. Dodson, ___ U.S. ___, 102 S.Ct. 445, 70
L.Ed.2d 509 (1981) held that public defenders do not act under
color of state law. Accordingly the Opinion followed Polk
County in rejecting Clay's principal claim against Friedman,
while sustaining a secondary cause of action against Friedman
only under the theory he conspired with a state actor. Dennis v.
Sparks, 449 U.S. 24, 27-28, 101 S.Ct. 183, 186-87, 66 L.Ed.2d
But the Court has taken a second look at the latter question —
stimulated principally by the very recent Third Circuit decision
in Black v. Bayer, 672 F.2d 309 (3d Cir. 1982), holding public
defenders absolutely immune from such Section 1983 conspiracy
suits. Black echoes the pre-Polk County decision by our Court
of Appeals in Robinson v. Bergstrom, 579 F.2d 401, 408-11 (7th
Cir. 1978). Because Polk County did not deal with the absolute
immunity doctrine (and this Court finds Black persuasive as to
its continuing vitality), Robinson still constitutes binding
precedent.*fn1 Clay therefore cannot maintain a Section 1983
action against Friedman even on a conspiracy theory.
Clay now seeks to amend her Complaint to state a cause of
action against Friedman and Harris "directly under the
Constitution . . ." (presumably the Fourteenth Amendment). That
approach is untenable.
It is true that Polk County, 102 S.Ct. at 51-52 n. 12 (1981)
reserved the question whether "under color" of state law and
"state action" are necessarily identical criteria:
Relying on such cases as Burton v. Wilmington
Parking Authority, 365 U.S. 715, 81 S.Ct. 856, 6
L.Ed.2d 45 (1961) and Moose Lodge v. Irvis,
407 U.S. 163, 92 S.Ct. 1965, 32 L.Ed.2d 627 (1972), the
respondent claims that the State's funding of
criminal defenses makes it a "joint participant" in
that enterprise, locked in a "symbiotic relationship"
with individual public defenders. He urges us to hold
on this theory that public defenders act under color
of state law within the meaning of § 1983. We cannot
do so. In both Burton and Moose Lodge the
question was whether "state action" was present. In
this case the question is whether a
public defender — who is concededly an employee of
the county — acted "under color of state law" in her
representation of Russell Dodson. Although this Court
has sometimes treated the questions as if they were
identical, see United States v. Price,
383 U.S. 787, 794 and n. 7, 86 S.Ct. 1152, 1157 and n. 7, 16
L.Ed.2d 267 (1966), we need not consider their
relationship in order to decide this case. Our
factual inquiry into the professional obligations and
functions of a public defender persuades us that
Shepard was not a "joint participant" with the State
and that, when representing respondent, she was not
acting under color of state law.
But Clay's allegations are much like those in Polk County. This
Court cannot ignore the clear mandate of that decision by
sidestepping Section 1983 and sustaining a direct right of action
under the Fourteenth Amendment. This opinion therefore holds
(1) As to the non-conspiracy claims against
Friedman sought to be grounded directly on the
Fourteenth Amendment, Friedman was not a "state
actor" because not a "joint participant" with the
(2) As to the like conspiracy claim, Friedman is
absolutely immune from Fourteenth Amendment as well
as Section 1983 claims. See Butz v. Economou,
438 U.S. 478, 513-17, 98 S.Ct. 2894, 2914-16, 57 L.Ed.2d
895 (1978) (federal agency hearing examiner,
prosecutor and attorney absolutely immune).
Clay is not without remedy. Common law malpractice has always
been a claim available in the state courts. Clay cannot however
force her allegations into a Section 1983 or Fourteenth Amendment
mold in the face of the clear mandate of Polk County and
Clay's Complaint is dismissed in its entirety as to
Friedman.*fn2 Clay is denied leave to amend her Second Amended
Complaint by adding a proposed Paragraph 2(a).