John v. Hurt, 73-1547.
| Decision Date | 16 November 1973 |
| Docket Number | No. 73-1547.,73-1547. |
| Citation | 489 F.2d 786 |
| Parties | Edward JOHN, Plaintiff-Appellant, v. Albert HURT, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Edward John, in pro. per.
Albert E. Hurt, Decatur, Ill., for defendant-appellee.
Before FAIRCHILD, CUMMINGS, and PELL, Circuit Judges.
Plaintiff appealed from a judgment dismissing his complaint. Although the appeal was once dismissed, we confirm our order of October 12, 1973, reinstating the appeal, and consider it on its merits, but without oral argument. Rule 2, F.R.A.P. Plaintiff's application for appointment of counsel is denied.
Plaintiff is an inmate of a state prison and is not represented. He sent his "complaint," "affidavit in forma pauperis," and other sheets of paper, variously entitled, to the district court. His pleading is to be held "to less stringent standards than formal pleadings drafted by lawyers" and the test is whether Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 596, 30 L.Ed.2d 652 (1972), reh. denied 405 U.S. 948, 92 S.Ct. 963, 30 L.Ed.2d 819.
The district court permitted filing in forma pauperis, but dismissed on the court's own motion without service of process on defendant.* The district court concluded that there were no facts pleaded by which defendant could be said to have acted under color of state law.
Reading plaintiff's papers together, plaintiff alleged that defendant incompetently represented him as a "court appointed attorney" in a burglary trial before a state court; that plaintiff was found guilty and sentenced to imprisonment; that "defendant is clothed with the authority of state law"; that he deprived plaintiff of sixth amendment rights by giving plaintiff incompetent counsel; and that specifically defendant failed to move to suppress damaging evidence which was introduced at trial, failed to call all witnesses in plaintiff's behalf, and made statements in argument to the jury which involved plaintiff in the charge.
It is now clear, as a result of plaintiff's later submissions, and a letter from defendant to this court concerning the appeal, that defendant was the Public Defender of Macon County, Illinois. In fairness to the district court it must be noted that plaintiff's original papers never expressly referred to defendant as public defender, although the caption of the complaint indicated his address as "Macon County Courthouse Decatur Illinois."
It is at least arguable that a public defender acts under color of state law in his relationship with and representation of an indigent accused person. Although we recognize that after appointment in a given case, the professional relationship of the public defender with his client is similar to that of a private attorney with his client, the public defender ordinarily enjoys continuing employment by a unit of government, is often furnished an office as well as compensation, and appears to his client, as well as others, as a person cloaked with the authority of the state. See, in the context of a criminal charge against a public defender acting under color of law, United States v. Senak, 477 F.2d 304 (7th Cir. 1973).
Assuming that defendant, as public defender, was acting under color of state law, plaintiff would still have to establish that defendant subjected him to the deprivation of a sixth amendment right. Looking at the complaint with required liberality, we can not say with assurance that plaintiff can adduce no facts to prove that defendant's alleged failures turned the state trial into a "sham or mockery" or at least "blotted out the essence of a substantial defense." United States ex rel. Little v. Twomey, 477 F.2d 767, 773 (7th Cir., 1973); Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609, 610 (1970).
Assuming, however, that defendant could be deemed to be acting under color of state law, and allowing for the possibility that plaintiff's proof might demonstrate such incompetency as to amount to deprivation of sixth amendment rights, we think that, as a matter of law, defendant is immune from liability for damages, and plaintiff's complaint must fail.
The legislative history of 42 U. S.C. § 1983 does...
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