Starnes v. Capital Cities Media, Inc., 94-1958

• Decision Date: 18 November 1994
• Docket Number: No. 94-1958,94-1958
• Citation: 39 F.3d 1394
• Parties: 23 Media L. Rep. 1119 William B. STARNES, Plaintiff-Appellant, v. CAPITAL CITIES MEDIA, INCORPORATED, doing business as Belleville News-Democrat, Marilyn Vise, Greg Edwards, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 1394

39 F.3d 1394

23 Media L. Rep. 1119

William B. STARNES, Plaintiff-Appellant, v. CAPITAL CITIES MEDIA, INCORPORATED, doing business as

Belleville News-Democrat, Marilyn Vise, Greg

Edwards, et al., Defendants-Appellees.

No. 94-1958.

United States Court of Appeals, Seventh Circuit.

Argued Oct. 24, 1994.

Decided Nov. 18, 1994.

David M. Duree (argued), Robert L. Carter, Reinert, Duree & Crane, St. Louis, MO, for William B. Starnes.

Frederick J. Hess, U.S. Atty., Robert B. Hoemeke, Joseph E. Martineau (argued), Yvette M. Guerra, Lewis, Rice & Fingersh, St. Louis, MO, for Capital Cities Media, Inc., Marilyn Vise, Greg Edwards.

Amiel Cueto, Christopher Cueto, Cueto, Cueto & Cueto, Belleville, IL, for Amiel Cueto.

Before POSNER, Chief Judge, BAUER, Circuit Judge, and WILL, District Judge. ^*

BAUER, Circuit Judge.

William Starnes filed this action under 42 U.S.C. Sec. 1983 alleging that the defendants, acting under color of state law, violated his constitutional right of privacy. The district court dismissed the complaint for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). Starnes appeals, and we affirm.

I.

Rule 8.3(b) of the Illinois Rules of Professional Conduct requires lawyers who know of a judge's violation of the Code of Judicial Conduct to report their knowledge to the "appropriate authority" unless this information is protected as a confidence. Acting pursuant to this edict, attorney Amiel Cueto, on two occasions in 1991, sent letters to the Illinois Judicial Inquiry Board ("Board") accusing Starnes, at the time a judge on the Illinois Circuit Court, of committing several felonies and misdemeanors and of various sexual escapades in public places. After its investigation, the Board declined to file a complaint against Starnes. As is customary, details of the charges and the ensuing investigation remained confidential.

A year later, Starnes became involved in divorce proceedings. When his now ex-wife retained Cueto as her attorney, Starnes filed a motion to disqualify Cueto from the case because of Cueto's previous accusations. In his response to the motion, Cueto attached copies of the two letters that he had previously sent to the Board.

Two months later, in July of 1992, the Belleville News-Democrat, a daily newspaper published and circulated in St. Clair County, Illinois, printed several articles about the no-longer confidential allegations contained in the letters. The following year Starnes filed a defamation action against the newspaper and its editors and against Cueto in the Circuit Court of St. Clair County.

Illinois law confers an absolute privilege upon statements made in the course of judicial proceedings if those statements are relevant to the controversy. Defend v. Lascelles, 149 Ill.App.3d 630, 102 Ill.Dec. 819, 825, 500 N.E.2d 712, 718 (1986). Finding that the contents of the letters were indeed relevant to the issue of Cueto's representation in the divorce case, Judge Kardis held that the privilege applied, and he dismissed the defamation claim.

Subsequently, Starnes filed this civil rights action charging Cueto, the newspaper, and various newspaper employees, with unlawfully depriving him of his constitutional right of privacy. His complaint alleged that Cueto attached the letters to his motion so that he could publicize the otherwise confidential allegations contained therein. Finding no conceivable set of facts under which the defendants could have been acting under color of state law, the district court granted the defendants' motion to dismiss.

II.

We review the dismissal of Starnes's complaint de novo. In so doing, we assume all well-pleaded allegations to be true, and we draw all inferences in Starnes's favor. Wiemerslage v. Maine Township High Sch., 29 F.3d 1149, 1151 (7th Cir.1994).

To state a valid cause of action under 42 U.S.C. Sec. 1983, a plaintiff must allege first that the defendant has deprived the plaintiff of a right secured by the Constitution and laws of the United States, and second, that the defendant acted under color of state law in making that deprivation. Adickes v. S.H. Kress & Co., 398 U.S. 144, 150, 90 S.Ct. 1598, 1604, 26 L.Ed.2d 142 (1970). The district court's dismissal was based on the second of these criteria, and so we focus our attention on the question of whether the defendants' actions can be fairly attributed to the state.

Starnes alleges in his complaint that Cueto attached the letters to his pleadings so that he could later publicize the accusations contained within them without fear of any legal action against him. Starnes claims also that the newspaper conspired with Cueto in this endeavor. Though the complaint fails to name any state officials as defendants, this omission is not necessarily fatal in a Sec. 1983 claim. A complaint may state a valid cause of action against private defendants in several situations, two of which are relevant here. The first situation arises when the state has so implicated itself in the defendant's action that the state has in effect compelled the action. Adickes, 398 U.S. at 170, 90 S.Ct. at 1615. Alternatively, a private party can be liable under Sec. 1983 if the defendant is alleged to have wilfully participated in joint action with state officials. Id. at 152, 90 S.Ct. at 1605.

Starnes claims that this case presents examples of both situations. He contends, first, that the "under color of state law" requirement has been satisfied because Cueto was acting pursuant to state law, and therefore, the state endorsed his act. He also alleges that because Judge Kardis, a state actor, found that the letters were protected from a defamation suit, Cueto can be held responsible for their subsequent disclosure under the "joint action" theory. After careful consideration of each argument, we conclude that the defendants' actions cannot be fairly attributed to the state.

In Adickes, the Supreme Court held that a private party's wrongful act may be attributed to the state for purposes of the Fourteenth Amendment if the state has somehow compelled the act. Adickes, 398 U.S. at 170, 90 S.Ct. at 1615. Specifically, the Court found that an allegation of a state-enforced custom of segregating races in public restaurants stated a valid cause of action against the restaurant. Underlying this rule is the rationale that if the state commands the performance of an unconstitutional practice, the fact that the practice is carried out by a private entity rather than a public entity should not preclude liability. Id.

The Court refined this principle in Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164, 98 S.Ct. 1729, 1737, 56 L.Ed.2d 185 (1978), in which the Court made clear that a state legislature's failure to regulate an action does not mean that the state has compelled the challenged action. Flagg Brothers involved a New York statute which permitted a bailee of goods to sell those goods if after a certain period of time, the bailor had not paid for the bailee's services. When the bailee took advantage of this statute, the bailor sued the bailee under Sec. 1983, alleging that by enacting the statute, the state had compelled the deprivation of his property.

The Court rejected this argument, holding that a statute that simply provided circumstances under which courts would not interfere with a purely private sale, was not equivalent to the state compelling, or even encouraging, an unconstitutional act. Id. at 166, 98 S.Ct. at 1738. The Court analogized the statute in...