United States District Court, Northern District of Illinois, E.D
June 11, 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,
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 shall stand.
Count IX purports to assert a cause of action against the
Office of the Public Defender. Under Fed.R.Civ.P. ("Rule")
17(b) the capacity of an entity to be sued must be determined
by Illinois law. Ill.Rev. Stat. ch. 34, § 5601 provides:
In each county of this state containing 35,000 or
more inhabitants there is created the office of
Public Defender and the person to be appointed to
such office shall be known as the Public
Then Ill.Rev.Stat. ch. 34, § 5602 provides:
. . the judges of the Circuit Court . . .
shall, by a majority vote of the entire number of
such judges, appoint to the office of Public
Defender a properly qualified person. . . .
Those statutes simply create an office or position to be
filled by one person. They do not create a governmental entity
or agency having an existence separate from the person who
fills it. In that respect the Public Defender is no different
from the Mayor of the City of Chicago. Accordingly this Court
finds the "Office of Public Defender" is not an entity suable
under Rule 17(b).
At a plea proceeding on September 28, 1977 the state court
appointed a guardian ad litem to represent Clay's interests.
Complaint Count X alleges the incompetent representation
provided by the court-appointed guardian ad litem violated
Clay's due process rights.*fn2
Ill.Rev.Stat. ch. 37, § 704-5 requires or authorizes
appointment of guardians ad litem to protect minors' interests
under various circumstances. Robin v. Robin, 45 Ill. App.3d 365,
373, 3 Ill.Dec. 950, 956, 359 N.E.2d 809, 815 (1st Dist.
A guardian ad litem is a person appointed by the
Court to prosecute or defend on behalf of a minor
in any suit in which the minor is a party.
Fees of the guardian ad litem are paid by the minor's parents
unless they cannot afford to, in which case the county covers
the cost. Section 704-5.
Under the reasoning of Polk County a guardian ad litem does
not act under color of state law as required by Section 1983.
In all critical respects, the role of the guardian ad litem is
almost identical to that of a public defender. He or she is a
fiduciary who must act in the minor's best interest. In a
criminal proceeding the guardian ad litem is necessarily
opposed to the State's position.
Only one factor discussed in Polk County is not paralleled by
Count X. Public defenders are held to standards established by
codes of professional responsibility, while no such analogous
guidelines exist for guardians ad litem. But that was not the
central focus of Polk County. It was only one piece of evidence
demonstrating the independence of a public defender. Both the
statute and the case law as to guardians ad litem demonstrate
their duty of loyalty is to the minor, not the State. There is
distinction between public defenders and guardians ad litem
for Section 1983 purposes.
Complaint ¶¶ 71 and 72 also allege M. Lawrence Goodman is
responsible for supervising all guardians ad litem and thus
caused — in a supervisory role — the incompetent
representation of Clay. Again the situation is
indistinguishable from that of public defenders. If Goodman
indeed had such responsibility, it would be an administrative
function subject to only a good faith immunity. Because the
Complaint adequately alleges a cause of action for
administrative malfeasance, Complaint ¶¶ 71 and 72 shall stand
while Paragraphs 68-70 are stricken.
Count XI attempts to state a cause of action against the
Circuit Court for establishing a policy that led to Clay's
injuries. Under Rule 17(b) this Court must again look to state
law to determine if the Circuit Court is an entity capable of
Illinois Constitution Art. 6, § 7(a) provides:
The State shall be divided into Judicial circuits
consisting of one or more counties.
Ill.Rev.Stat. ch. 37, § 72.1 implements that provision:
The County of Cook shall be one judicial circuit
and the State of Illinois, exclusive of the
County of Cook, shall be and is divided into
judicial circuits as follows. . . .
Those as well as all the other provisions establishing the
Illinois court system demonstrate the state was divided into
various circuits for the administrative convenience of the
judges who actually operate the courts. Thus the Circuit Court
of Cook County is nothing more than a geographical division to
determine which judges as a group will handle which cases.
This Court finds the Circuit Court is not an entity that can
be sued under Rule 17(b). Count XI is dismissed.*fn3
Count XII alleges a cause of action for malpractice under
Illinois law against Friedman, Harris, Doherty and Katz.
Defendants have raised no substantive objection to that Count.
Because some of Clay's federal allegations survive this
opinion, Count XII is properly part of this case as to Doherty
and Katz under this Court's pendent jurisdiction.
But permitting a pendent state law claim against Friedman
and Katz poses a different problem. All federal law claims
against them have been dismissed, and they could remain
parties to this action solely on the basis of the pendent
Although some question exists whether such pendent
party jurisdiction should be judged by all the same standards
as pendent claim jurisdiction,*fn4 any reasoned exercise of
discretion here requires dismissal of Friedman and Harris from
this action. Maintenance of Clay's action against their
supervisors Doherty and Katz will require proof of prior
incompetent representation by Friedman and Harris. But such
evidence is likely inadmissible in a malpractice action against
Friedman and Harris under Fed.R.Evid. 404(b). And even if it
might technically be relevant, Clay's jury demand and the
potential of prejudice would probably cause its exclusion under
Fed.R.Evid. 403. Thus a trial of the pendent claims against
Friedman and Harris simultaneously with the federal and pendent
claims against all other defendants would pose hazards that
would far outweigh any resulting economies of scale.
In short this Court finds that retaining Friedman and Harris
in this action solely on a pendent state law claim would not
serve the interests of "judicial economy, convenience and
fairness to litigants. . . ." United Mine Workers v. Gibbs,
383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966).
Count XII shall therefore remain only as to Doherty and Katz.
Count XIII attempts to state a cause of action under
Illinois law against the Office of the Public Defender of Cook
County. For the reasons discussed as to Count IX, Count XIII
is also dismissed.
Count XIV asserts a cause of action under Illinois law
against Goodman and unnamed members of the Office of the
Guardian Ad Litem. Because Goodman remains before this Court
on a federal law claim (Count X), this Court will permit Count
XIV's additional pendent claims as to him.*fn5 But the
Complaint's cryptic reference to "unnamed subordinates"
(Paragraphs 84 and 85) appears to rest on an unspecified
failure of unidentified staff members to protect Clay's
interests (see Paragraph 70). Pendent party considerations
make this Court reluctant to permit Clay to inject such
persons into the litigation without more specifics to justify
doing so. If and when Clay provides such particulars, the
issue can be dealt with on an informed basis.
Count XV attempts to state a cause of action under Illinois
law against the Circuit Court. Just as with Count XI, Count XV
Complaint ¶¶ 91, 92 and 93 assert a claim against Friedman
under the assumption he was appointed guardian ad litem for
Clay. As already stated, no Section 1983 cause of action exists
against guardians ad litem. Accordingly those paragraphs are
Complaint ¶ 94 alleges Doherty, Katz, Goodman, the Circuit
Court, the Public Defender and the County of Cook failed to
take appropriate supervisory actions necessary to prevent the
court-appointed guardian ad litem from providing incompetent
representation for Clay. That paragraph is stricken because:
(1) Neither the Circuit Court nor the Public
Defender is a suable entity.
(2) Count X already alleges a cause of action
against Goodman for supervisory malfeasance.
(3) There is no allegation supporting the
notion that Doherty or Katz had any supervisory
powers over a guardian ad litem.
(4) There is no allegation as to what
supervisory actions were not taken, so that the
whole paragraph does not comply even with the
notice pleading requirement of Rule 8.
Complaint ¶ 75 alleges that Friedman, Katz, Goodman, the
Circuit Court, Public Defender and County of Cook are liable
under Illinois law for Friedman's actions in his role as a
guardian ad litem. Most of that paragraph must also be stricken
for the same reasons just discussed. All that might survive is
the pendent claim against Friedman, and that is stricken for
the reasons expressed as to Count XII.
Count XVII alleges a cause of action against Cook County for
promulgating policies and customs that caused all the alleged
harms to Clay. Monell v. Department of Social Services of the
City of New York, 436 U.S. 658, 96 S.Ct. 2018, 56 L.Ed.2d 611
(1978). Under this Court's regularly-applied standard of
pleading, Clay has adequately alleged a custom or policy of
Cook County that could have caused Clay's incompetent
representation by both the Public Defenders and the guardians
ad litem. Villa v. Franzen, 511 F. Supp. 231, 235 (N.D.Ill.
1981); Thompson v. Village of Evergreen Park, 503 F. Supp. 251,
252 (N.D.Ill. 1980). Furthermore it is clear under Owen v. City
of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673
(1980) that Cook County is not entitled to immunity under
Section 1983.*fn6 Accordingly Count XVII shall stand.
Prayer For Relief
In her prayer for relief Clay asks punitive damages. That
claim must be dismissed as to Cook County. City of Newport v.
Fact Concerts, Inc., 453 U.S. 247, 101 S.Ct. 2748, 69 L.Ed.2d
Defendants also attack the propriety of equitable relief.
But the Complaint prays for no equitable relief as such. It
does ask for a "declaratory judgment that the actions of
defendants as alleged above are in violation of her Fourteenth
Amendment rights to due process of rights and the common law
of Illinois. . . ." Because the parties have not addressed the
issue whether declaratory relief is appropriate, that prayer
for relief will stand.
Opinions I and II effectively dismissed Counts I through VI.
This opinion has riddled the remaining Counts so that the
remaining defendants would have great difficulty propounding
an answer to the surviving allegations. Accordingly the
Complaint is stricken, with Clay given leave to file a Third
Amended Complaint embodying her still-surviving claims on or
before June 23. All remaining defendants shall answer within
14 days thereafter. This action is set for status report
August 5, 1982 at 9:15 a. m.