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June 3, 1991

PATRICK T. MURPHY, both individually and in his capacity as Public Guardian, Defendant

The opinion of the court was delivered by: NORGLE


 Before the court is the motion of defendant Patrick T. Murphy ("Murphy") to dismiss all four counts of plaintiffs' complaint. For the reasons stated below, the motion is granted.


 This case is the epilogue to a lawsuit litigated in 1990 in the Juvenile Division of the Circuit Court of Cook County (Case No. 90 J 3751). In that case, plaintiffs Pamela and Joseph Kohl executed a consent form relinquishing all parental rights and obligations to their adopted son, Anthony. The Kohls had cared for Anthony and his younger brother, Sam, since August 2, 1982, when the brothers were placed with them as foster children. At that time, Anthony was five and Sam was three years old. The Kohls adopted both boys in April 1986. Subsequently, family problems arose for which the Kohls sought and received individual and family counseling. According to the complaint, their efforts at counseling proved unsuccessful. The Kohls later consulted with the Illinois Department of Children and Family Services ("DCFS") and Hephzibah, a private counseling agency, and in 1989 decided to relinquish their parental rights and obligations to their son, Anthony. The plaintiffs filed no action regarding Sam.

 In the action filed by the Kohls in Juvenile Court, the Kohls were represented by the Public Defender of Cook County *fn1" and the court appointed defendant Murphy, Public Guardian of Cook County, as guardian ad litem ("GAL") for Anthony. Other parties involved in the litigation were DCFS and the State's Attorney for Cook County. On March 8, 1990, after a hearing on the matter, the Kohls obtained a ruling permitting them to relinquish their parental rights and obligations to Anthony. Also in that proceeding, the Public Guardian's office requested an order directing the Kohls to cooperate in regularly scheduled visitation between Sam and Anthony. The presiding Juvenile Court judge declined to issue this proposed order, reasoning that it would be unenforceable.

 After the March 8, 1990 hearing, according to the plaintiffs, Murphy "engaged in a systematic public relations campaign to smear the KOHLS. The Defendant acted in reckless disregard of the Kohls' right to privacy in revealing to the press and the public at large, personal information that was confidential." Complaint, para. 11. *fn2"

 On November 13, 1990, the plaintiffs, through private counsel, filed this Complaint against Murphy, alleging four causes of action. Count I alleges that Murphy is liable to them under 42 U.S.C. § 1983 for violating their Fourteenth Amendment right to privacy. The remaining three counts of the complaint allege state law claims for: invasion of privacy -- false light (Count II); invasion of privacy -- private matter (Count III) and invasion of privacy under Article I, Section 6 of the Illinois Constitution (Count IV). In his motion to dismiss, defendant argues that Count I of plaintiffs' complaint fails to state a claim and that the remaining counts of the complaint should be dismissed for lack of federal subject matter jurisdiction.


 On a motion to dismiss, the allegations of the complaint as well as the reasonable inferences to be drawn from them are taken as true. Doe ex rel. Doe v. St. Joseph's Hosp., 788 F.2d 411 (7th Cir. 1986). However, the court need not strain to find inferences favorable to the plaintiff which are not apparent on the face of the complaint. Coates v. Illinois State Board of Education, 559 F.2d 445, 447 (7th Cir. 1977). The plaintiff need not set out in detail the facts upon which a claim is based, but must allege sufficient facts to outline the cause of action. Id. The complaint must state either direct or inferential allegations concerning all of the material elements necessary for recovery under the relevant legal theory. Mescall v. Burrus, 603 F.2d 1266 (7th Cir. 1979). The court is not required to accept legal conclusions either alleged or inferred from pleaded facts. Carl Sandburg Village Condominium Ass'n No. 1 v. First Condominium Development Co., 758 F.2d 203, 207 (7th Cir. 1985). Dismissal under Rule 12(b)(6) is improper unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Papapetropoulous v. Milwaukee Transport Services, Inc., 795 F.2d 591, 594 (7th Cir. 1986).

 As a preliminary matter, the court notes that the Complaint fails to articulate whether plaintiffs' § 1983 claim is asserted against Murphy in his "official" or "personal" capacity. *fn3" A § 1983 action against Murphy in his official capacity is, in essence, an action against Cook County. See Kentucky v. Graham, 473 U.S. 159, 165-166, 87 L. Ed. 2d 114, 105 S. Ct. 3099 (1985); Yeksigian v. Nappi, 900 F.2d 101, 103 (7th Cir. 1990). However, plaintiffs' failure to allege that any policy, custom or practice of Cook County played a part in the alleged violation of their federally protected rights precludes them from stating a § 1983 claim against Murphy in his official capacity. See Monell v. Department of Social Services, 436 U.S. 658, 694, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978); see also Graham, 473 U.S. at 166. Thus, plaintiffs' § 1983 action must proceed against Murphy, if at all, in his personal capacity.

 To state a cause of action against Murphy in his personal capacity, plaintiffs must establish that defendant deprived them of a federally protected right and that the deprivation was carried out under color of state law. West v. Atkins, 487 U.S. 42, 101 L. Ed. 2d 40, 108 S. Ct. 2250 (1988); Gomez v. Toledo, 446 U.S. 635, 64 L. Ed. 2d 572, 100 S. Ct. 1920 (1980). "A private defendant acts 'under color of state law' for the purposes of Section 1983 when [it] is 'a willful participant in joint action with the State or its agents.'" Leahy v. The Board of Trustees of Community College District No. 508, 912 F.2d 917, 921 (7th Cir. 1990) (quoting Malak v. Associated Physicians, Inc., 784 F.2d 277, 281 (7th Cir. 1986) and Dennis v. Sparks, 449 U.S. 24, 27, 66 L. Ed. 2d 185, 101 S. Ct. 183 (1980)). In his motion to dismiss, Murphy raises essentially two arguments. First, he argues that GALs are not amenable to suit under § 1983 because they do not "act under color of state law," an essential element of the § 1983 cause of action. Second, Murphy argues that the invasion of privacy allegations asserted by plaintiff are not actionable as violations of the due process clause of the Fourteenth Amendment. *fn4"

 Murphy's first argument is that he is not amenable to suit under § 1983 in his personal capacity because in his role as GAL for Anthony Kohl, he was not acting "under color of state law" for the purposes of Section 1983. In support of his position, Murphy cites Polk County v. Dodson, 454 U.S. 312, 70 L. Ed. 2d 509, 102 S. Ct. 445 (1981) as analogous authority. In Dodson, the Supreme Court held that a public defender does not act under color of state law for the purposes of § 1983 when performing a lawyer's traditional functions as counsel for a defendant in a criminal proceeding. The Dodson court stated that because a public defender owes an undivided loyalty to the interests of his client -- which, in a criminal case, is necessarily adverse to the interests of the state -- he is not deemed to be acting on behalf of the State or in concert with it. Dodson, 454 U.S. at 318.

 Murphy also cites several post- Dodson lower court opinions in which courts have applied the reasoning of Dodson in holding that GALs do not act "under color of state law" when acting as counsel for a minor in judicial proceeding before the juvenile court. See Meeker v. Kercher, 782 F.2d 153, 155 (10th Cir. 1986); Doe v. Bobbitt, 665 F. Supp. 691, 695 (N.D.Ill. 1987); Clay v. Friedman, 541 F. Supp. 500, 503 (N.D.Ill. 1982). These cases reasoned that GALs are analogous to public defenders because both have an ...

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