The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Sanford Norman Harris ("Harris") has filed a pro se
Complaint asserting claims under 42 U.S.C. § 1983 ("Section
1983") against seven defendants, including Harris'
court-appointed public defenders John T. Beynon ("Beynon") and
Leonard C. Remencius ("Remencius"), former Stateville
Correctional Center Warden George Stampar ("Stampar") and
Menard State Prison psychiatrist Frank Perez ("Perez").*fn1
Those four defendants seek dismissal of the claims against
1. Beynon and Remencius invoke Fed. R.Civ.P.
("Rule") 12(b)(6), asserting Harris' failure to
state a claim upon which relief can be granted,
because they are not state actors as Section 1983
requires. Harris' appointed counsel has responded
by asking leave to amend the complaint to charge
common-law negligence as a claim "ancillary" to
Harris' other Section 1983 claims.*fn2
2. Stampar's and Perez' original motion to
dismiss Harris' claims against them as
time-barred was denied by this Court's July 18,
1983 memorandum opinion and order (the "Order").
Stampar and Perez now renew their motion on a
laches theory — but again without advancing any
facts in support of their motion.
Each motion poses little difficulty, albeit for very different
Every item Harris complains about in Beynon's and Remencius'
conduct was an action carried out as Harris' court-appointed
public defender. All those actions were taken in their
traditional role as counsel exercising independent
professional judgment. And Polk County v. Dodson, 454 U.S. 312,
324-25, 102 S.Ct. 445, 453, 70 L.Ed.2d 509 (1981) teaches as a
matter of law such conduct is not "under color of
[state] law," the essential ingredient for Section 1983
That fact is dispositive of Harris' claims against Beynon
and Remencius as now asserted. But Harris' counsel now asks to
convert those claims to garden-variety negligence causes of
action, assertedly as "ancillary" to Section 1983 claims
against other defendants.
There may well be no room at all for such pendent-party
jurisdiction in this Circuit under any circumstances, see
Hixon v. Sherwin-Williams Co., 671 F.2d 1005, 1007-09 (7th Cir.
1982); Johnson v. Miller, 680 F.2d 39, 41 (7th Cir. 1982). And
if any such jurisdiction could exist in the face of our Court
of Appeals' strong statements, this is not the case for it.
Harris cannot engraft his separate state-law-based claims
against his lawyers onto his really unrelated federal claims
against state officials.
Laches is an affirmative defense (see Rule 8(c)),*fn3 as to
which Stampar and Perez bear the burden of showing (1) Harris'
lack of diligence in asserting his claim and (2) resulting
prejudice suffered by Stampar and Perez.*fn4 Cannon v.
University of Health Sciences/The Chicago Medical School,
710 F.2d 351, 359 (7th Cir. 1983). "Lack of diligence" turns on
whether the delay in filing suit was both unreasonable and
inexcusable. Id.; Lingenfelter v. Keystone Consolidated
Industries, Inc., 691 F.2d 339, 341 (7th Cir. 1982). Prejudice
is a function of the changing conditions and relationships
occasioned by the delay. Lingenfelter, 691 F.2d at 340.
Here Harris complains of actions taken by Stampar and Perez
in 1966 and 1967 during the course of Harris' confinement.
That means a 16-year delay by Harris in seeking to redress the
alleged wrongdoing by Stampar and Perez. Harris argues by
analogy the same statutory provision that tolls the running of
limitations (see Order at 1) should be applied to "toll" the
applicability of laches. Harris does not identify any other
circumstance that prevented the earlier filing of this
Harris' argument seems thin at best. But the issue need not
be decided now, for given the poverty of the Stampar-Perez
position on the second factor — prejudice — it may be assumed
arguendo Harris' delay was both unreasonable and inexcusably
All Stampar and Perez do is to advance the bald assertion
such delay has prejudiced their ability to ...