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CLAY v. FRIEDMAN

June 11, 1982

IVIE CLAY, PLAINTIFF,
v.
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

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 require dismissal.

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.

Count VIII

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 ...


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