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,
the Circuit Court of Cook County, the County of Cook and the
Cook County Guardian Ad Litem under 42 U.S.C. § 1983 ("Section
1983") based on the allegedly incompetent representation
provided Clay in a criminal proceeding. This Court's February
12, 1982 memorandum opinion and order ("Opinion I") and April
9, 1982 supplemental memorandum opinion and order ("Opinion
II") dismissed Counts I-VI of the Second Amended Complaint (the
"Complaint"). 537 F. Supp. 409.*fn1 All defendants have moved
to dismiss the remaining counts. For the reasons stated in this
memorandum opinion and order those motions are granted in part
and denied in part.
Count VII alleges a cause of action against Cook County
Public Defender James Doherty ("Doherty") for both individual
and supervisory acts. In Complaint ¶ 50 Clay alleges that by
virtue of his office Doherty is counsel for all defendants
represented by a public defender and is therefore jointly
liable for actions taken by Friedman and Harris. That paragraph
fails to state a cause of action both because (1) it attempts
to assess liability on a respondeat superior basis and (2) even
if it were a proper basis for liability, Polk County v. Dotson,
___ U.S. ___, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) would
Complaint ¶ 51 asserts a cause of action against Doherty —
as Friedman's employer — directly under the Constitution under
a respondeat superior theory. But what this Court stated in
Opinion II at 3 applies with equal force here:
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.
Paragraph 51 is therefore stricken.
In Complaint ¶¶ 44-49 Clay alleges Doherty failed:
(1) to discontinue Friedman's employment even
though Friedman had demonstrated his incompetence
several times before representing Clay;
(2) to develop a system of monitoring the
performance of assistant public defenders; and
(3) to develop a system so that assistant
public defenders had sufficient information to
represent clients properly.
Although an official is a supervisor, he may be subject to
Section 1983 liability if his own actions in some way
cause a constitutional deprivation. See, Rizzo v. Goode,
423 U.S. 362, 371, 96 S.Ct. 598, 604, 46 L.Ed.2d 561 (1976). That
test is met by the cited allegations.
Furthermore, unlike the actions discussed in Polk County, the
asserted acts would be under color of state law. In his
supervisory capacity as an employer the Public Defender does
not play an adversary role. His obligation is to the government
to assure only competent employees are kept on. Clay's
allegations involve administrative not adversary activities, so
that Polk County's reasoning does not apply.
Finally, Doherty is not entitled to absolute immunity for
such supervisory acts. Immunity of public defenders is a
reflection of prosecutorial immunity. See, Robinson v.
Bergstrom, 579 F.2d 401 (7th Cir. 1978). Under Imbler v.
Pachtman, 424 U.S. 409, 430-31, 96 S.Ct. 984, 994-96, 47
L.Ed.2d 128 (1976) such an official is absolutely immune only
for advocacy-related activities. Daniels v. Kieser,
586 F.2d 64, 67 n. 5 (7th Cir. 1978). Hiring, firing and monitoring
attorneys is an administrative function. D'Iorio v. County of
Delaware, 447 F. Supp. 229, 235 (E.D.Pa. 1978), vacated and
remanded on other grounds, 592 F.2d 681 (3d Cir. 1978). Doherty
is therefore entitled only to a good faith immunity defense.
For the several reasons just stated Complaint ¶¶ 44-49 are
permitted to stand.
Ronald Katz ("Katz") is the assistant public defender in
charge of Juvenile Court activities. Complaint Count VIII
charges Katz in almost identical terms to Count VII's
allegations against Doherty. For the reasons just discussed:
(1) Paragraph 59 is stricken.
(2) All the remaining allegations of Count VIII ...