Polk County v. Dodson

454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509, 1981 U.S. LEXIS 136

Opinions

Justice Powell

delivered the opinion of the Court.

The question in this case is whether a public defender acts “under color of state law” when representing an indigent defendant in a state criminal proceeding.

HH

This case arose when the respondent Russell Richard Dodson filed a pro se complaint in the United States District Court for the Southern District of Iowa. Dodson brought the action in federal court under 42 U. S. C. § 1983. As the factual basis for his lawsuit Dodson alleged that Martha Shepard, an attorney in the Polk County Offender Advocate’s Office, had failed to represent him adequately in an appeal to the Iowa Supreme Court.¹

A full-time employee of the county, Shepard had been assigned to represent Dodson in the appeal of a conviction for robbery. After inquiring into the case, however, she moved for permission to withdraw as counsel on the ground that Dodson’s claims were wholly frivolous.² Shepard accompanied her motion with an affidavit explaining this conclusion. She also filed a memorandum summarizing Dodson’s claims and the supporting legal arguments. On November 9, 1979, the Iowa Supreme Court granted the motion to withdraw and dismissed Dodson’s appeal.

In his complaint in the District Court the respondent alleged that Shepard’s actions, especially her motion to withdraw, had deprived him of his right to counsel, subjected him to cruel and unusual punishment, and denied him due process of law.³ He sought injunctive relief as well as damages in the amount of $175,000. To establish that Shepard acted “under color of state law,” a jurisdictional requisite for a §1983 action, Dodson relied on her employment by the county. Dodson also sued Polk County, the Polk County Offender Advocate, and the Polk County Board of Supervisors. He alleged that the Offender Advocate and the Board of Supervisors had established the rules and procedures that Shepard was bound to follow in handling criminal appeals.

The District Court dismissed Dodson’s claims against all defendants. 483 F. Supp. 347 (1979). It held that the relevant actions by Shepard had not occurred under color of state law. Canvassing the leading authorities, it reasoned that a public defender owes a duty of undivided loyalty to his client. A public defender therefore could not be sued as an agent of the State. The District Court dismissed the Offender Advocate from the suit on the same theory. It also held that Dodson’s complaint failed to allege the requisite personal involvement to state a § 1983 claim against Polk County and the Board of Supervisors.

The Court of Appeals for the Eighth Circuit reversed. 628 F. 2d 1104 (1980). Like the District Court, it assumed that a public defender owed his client the same responsibility as any other attorney. In its view, however, the “dispos-itive point” was that Iowa Offender Advocates were “employees of the County,” which was “merely a creature of the State.” Whether public defenders received instructions from county officials was “beside the point.” “Public defenders receive their power not because they are selected by their clients, but because they are employed by the County to represent a certain class of clients, who likely have little or no choice in selecting the lawyer who will defend them.” Id., at 1106. In holding as it did on this issue, the court recognized that its decision conflicted with the holdings of a number of other Courts of Appeals. Reasoning that Dodson’s pro se complaint should be liberally construed, the court also ordered reinstatement of the § 1983 claims against the Offender Advocate and the Board of Supervisors. The question of their involvement was left for factual development in the District Court. In addition, the court ordered that Dodson be given an opportunity on remand to state his claim against the county with greater specificity. Finally, the court rejected the argument that a public defender should enjoy the same immunity provided to judges and prosecutors. It held that the defendants were entitled to a defense of “good faith,” but not of “absolute,” immunity.

One member of the panel filed a dissent. The dissent argued that a person acts under color of state law only when exercising powers created by the authority of the State. In this case, it reasoned, the alleged wrongs were not made possible only because the defendant was a public defender. In essence the complaint asserted an ordinary malpractice claim, which would be equally maintainable against a retained attorney or appointed counsel. The dissent also argued that public defenders should be entitled to absolute immunity from suit.

We granted certiorari to resolve the division among the Courts of Appeals over whether a public defender acts under color of state law when providing representation to an indigent client.⁴ 450 U. S. 963 (1981). We now reverse.

HH HH

In United States v. Classic, 313 U. S. 299, 326 (1941), this Court held that a person acts under color of state law only when exercising power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.”⁵ In this case the Offender Advocate for Polk County assigned Martha Shepard to represent Russell Dodson in the appeal of his criminal conviction. This assignment entailed functions and obligations in no way dependent on state authority. From the moment of her appointment, Shepard became Dodson’s lawyer, and Dodson became Shepard’s client. Except for the source of payment, their relationship became identical to that existing between any other lawyer and client. “Once a lawyer has undertaken the representation of an accused, the duties and obligations are the same whether the lawyer is privately retained, appointed, or serving in a legal aid or defender program.” ABA Standards for Criminal Justice 4-3,9 (2d ed. 1980).⁶

Within the context of our legal system, the duties of a defense lawyer are those of a personal counselor and advocate. It is often said that lawyers are “officers of the court.” But the Courts of Appeals are agreed that a lawyer representing a client is not, by virtue of being an officer of the court, a state actor “under color of state law” within the meaning of § 1983.⁷ In our system a defense lawyer characteristically opposes the designated representatives of the State. The system assumes that adversarial testing will ultimately advance the public interest in truth and fairness. But it posits that a defense lawyer best serves the public, not by acting on behalf of the State or in concert with it, but rather by advanc ing “the undivided interests of his client.”⁸ This is essentially a private function, traditionally filled by retained counsel, for which state office and authority are not needed.⁹

H-1 » — 1

The respondent argues that a public defender’s employment relationship with the State, rather than his function, should determine whether he acts under color of state law. We take a different view.

A

In arguing that the employment relationship establishes that the public defender acts under color of state law, Dodson relies heavily on two cases in which this Court assumed that physicians, whose relationships with their patients have not traditionally depended on state authority, could be held liable under § 1983. See O’Connor v. Donaldson, 422 U. S. 563 (1975); Estelle v. Gamble, 429 U. S. 97 (1976). These cases, he argues, are analytically identical to this one. Like the physicians in O’Connor and Estelle, a public defender is paid by the State. Further, like the institutionalized patients in those cases, an indigent convict is unable to choose the professional who will render him traditionally private services. These factors, it is argued, establish that public defenders— like physicians in state hospitals — act under color of state law and are amenable to suit under § 1983.

In our view O’Connor and Estelle are distinguishable from this case. O’Connor involved claims against a psychiatrist who served as the superintendent at a state mental hospital. Although a physician with traditionally private obligations to his patients, he was sued in his capacity as a state custodian and administrator. Unlike a lawyer, the administrator of a state hospital owes no duty of “undivided loyalty” to his patients. On the contrary, it is his function to protect the interest of the public as well as that of his wards. Similarly, Estelle involved a physician who was the medical director of the Texas Department of Corrections and also the chief medical officer of a prison hospital. He saw his patients in a custodial as well as a medical capacity.

Because of their custodial and supervisory functions, the state-employed doctors in O’Connor and Estelle faced their employer in a very different posture than does a public defender. Institutional physicians assume an obligation to the mission that the State, through the institution, attempts to achieve. With the public defender it is different. As argued in the dissenting opinion in the Court of Appeals, it is the function of the public defender to enter “not guilty” pleas, move to suppress State’s evidence, object to evidence at trial, cross-examine State’s witnesses, and make closing arguments in behalf of defendants.¹⁰ All of these are adversarial functions. We find it peculiarly difficult to detect any color of state law in such activities.

B

Despite the public defender’s obligation to represent his clients against the State, Dodson argues — and the Court of Appeals concluded — that the status of the public defender differs materially from that of other defense lawyers. Because public defenders are paid by the State, it is argued that they are subject to supervision by persons with interests unrelated to those of indigent clients. Although the employment relationship is certainly a relevant factor, we find it insufficient to establish that a public defender acts under color of state law within the meaning of § 1983.

First, a public defender is not amenable to administrative direction in the same sense as other employees of the State. Administrative and legislative decisions undoubtedly influence the way a public defender does his work. State decisions may determine the quality of his law library or the size of his caseload. But a defense lawyer is not, and by the nature of his function cannot be, the servant of an administrative superior. Held to the same standards of competence and integrity as a private lawyer, see Moore v. United States, 432 F. 2d 730 (CA3 1970), a public defender works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client. “A lawyer shall not permit a person who recommends, employs, or pays him to render legal services for another to direct or regulate his professional judgment in rendering such legal services.” DR 5-107 (B), ABA Code of Professional Responsibility (1976).¹¹

Second, and equally important, it is the constitutional obligation of the State to respect the professional independence of the public defenders whom it engages.¹² This Court’s decision in Gideon v. Wainwright, 372 U. S. 335 (1963), established the right of state criminal defendants to the “ ‘guiding hand of counsel at every step in the proceedings against [them].”’ Id., at 345, quoting Powell v. Alabama, 287 U. S. 45, 69 (1932). Implicit in the concept of a “guiding hand” is the assumption that counsel will be free of state control. There can be no fair trial unless the accused receives the services of an effective and independent advocate. See, e. g., Gideon v. Wainwright, supra; Holloway v. Arkansas, 435 U. S. 475 (1978). At least in the absence of pleading and proof to the contrary, we therefore cannot assume that Polk County, having employed public defenders to satisfy the State’s obligations under Gideon v. Wainwright, has attempted to control their action in a manner inconsistent with the principles on which Gideon rests.¹³

C

The respondent urges a different view of the public defender’s relationships to his clients and to the State. Whatever their ethical obligations, public defenders do not, he argues, characteristically extend their clients the same undivided loyalty tendered by privately retained attorneys. In support of this argument Dodson notes that the public defender moved to be dismissed from his case against the client’s wishes. Dodson claims to have suffered prejudice from this act. He insists that such action would not have been taken by a privately retained attorney.

Dodson’s argument assumes that a private lawyer would have borne no professional obligation to refuse to prosecute a frivolous appeal. This is error. In claiming that a public defender is peculiarly subject to divided loyalties, Dodson confuses a lawyer’s ethical obligations to the judicial system with an allegiance to the adversary interests of the State in a criminal prosecution. Although a defense attorney has a duty to advance all colorable claims and defenses, the canons of professional ethics impose limits on permissible advocacy. It is the obligation of any lawyer — whether privately retained or publicly appointed — not to clog the courts with frivolous motions or appeals.¹⁴ Dodson has no legitimate complaint that his lawyer refused to do so.

As a matter of empirical fact, it may or may not be true that the professional obligation to withdraw from frivolous appeals will be invoked with disproportionate frequency in cases involving indigent prisoners. The recent burgeoning of postconviction remedies has undoubtedly subjected the legal system to unprecedented strains, including increased demands for legal assistance.¹⁵ The State of Iowa has responded by authorizing the provision of greater representation than the Constitution requires. Its system of public defenders contemplates the extension of legal assistance through the various tiers of postconviction review, incorporating only the general ethical limitation that counsel should withdraw from frivolous cases.¹⁶

In this context Dodson argues that public defenders making withdrawal decisions are viewed by indigent prisoners as hostile state actors. We think there is little justification for this view, if indeed it is widely held.¹⁷

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In concluding that Shepard did not act under color of state law in exercising her independent professional judgment in a criminal proceeding, we do not suggest that a public defender never acts in that role. In Branti v. Finkel, 445 U. S. 507 (1980), for example, we found that a public defender so acted when making hiring and firing decisions on behalf of the State. It may be — although the question is not present in this case — that a public defender also would act under color of state law while performing certain administrative and possibly investigative functions. Cf. Imbler v. Pachtman, 424 U. S. 409, 430-431, and n. 33 (1976). And of course we intimate no views as to a public defender’s liability for malpractice in an appropriate case under state tort law. See Ferri v. Ackerman, 444 U. S. 193, 198 (1979).¹⁸ With respect to Dodson’s §1983 claims against Shepard, we decide only that a public defender does not act under color of state law when performing a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.¹⁹ Because it was based on such activities, the complaint against Shepard must be dismissed.

V

In his complaint in the District Court, Dodson also asserted § 1983 claims against the Offender Advocate, Polk County, and the Polk County Board of Supervisors.' Section 1983 will not support a claim based on a respondeat superior theory of liability. Monell v. New York City Dept. of Social Services, 436 U. S. 658, 694 (1978). To the extent that Dodson’s claims rest on this basis, they fail to present a federal claim.

The Court of Appeals apparently read Dodson’s pro se complaint as susceptible of another construction. It found an actionable claim in the bald allegation that Shepard had injured him while acting pursuant to administrative “rules and procedures for . . . handling criminal appeals” and that her employers were therefore responsible for her actions. 628 F. 2d, at 1108. We also have noted an allegation in respondent’s complaint that the county “retains and maintains, advocates out of law school” who have on numerous occasions moved to withdraw from appeals of criminal convictions.

The question is whether either allegation describes a constitutional tort actionable under § 1983. We conclude not. In Monell v. New York City Dept. of Social Services, supra, we held that official policy must be “the moving force of the constitutional violation” in order to establish the liability of a government body under §1983. Id., at 694. See Rizzo v. Goode, 423 U. S. 362, 370-377 (1976) (general allegation of administrative negligence fails to state a constitutional claim cognizable under § 1983). In this case the respondent failed to allege any policy that arguably violated his rights under the Sixth, Eighth, or Fourteenth Amendments. He did assert that assistant public defenders refused to prosecute certain appeals on grounds of their frivolity. But a policy of withdrawal from frivolous cases would not violate the Constitution. Anders v. California, 386 U. S. 738 (1967). And respondent argued the existence of no impermissible policy pursuant to which the withdrawals might have occurred. Respondent further asserted that he personally was deprived of a Sixth Amendment right to effective counsel. Again, however, he failed to allege that this deprivation was caused by any constitutionally forbidden rule or procedure.

When Dodson’s complaint is viewed against the standards of our cases, even in light of the sympathetic pleading requirements applicable to pro se petitioners, see Haines v. Kerner, 404 U. S. 519 (1972) (per curiam), we do not believe he has alleged unconstitutional action by the Offender Advocate, Polk County, or the Polk County Board of Supervisors. Accordingly, his claims against them must be dismissed.

HH >

For the reasons stated in this opinion, the decision of the Court of Appeals is

Reversed.

Footnotes

1

According to findings made in the District Court: “[T]he Offender Advocate is the independent creation of the Polk County Board of Supervisors. It or one of its lawyers is appointed by the court to represent indigent defendants. It has a salaried lawyer director and several full time salaried lawyers. It is fully funded by Polk County.” 483 F. Supp. 347, 349, n. 2 (1979). The office handles about 2,500 cases per year.

2

She did so pursuant to Rule 104 of the Iowa Rules of Appellate Procedure, which provides in pertinent part:

“(a) If counsel appointed to represent a convicted indigent defendant in an appeal to the supreme court is convinced after conscientious investigation of the trial transcript that the appeal is frivolous and that he cannot, in good conscience, proceed with the appeal, he may move the supreme court in writing to withdraw. The motion must be accompanied by a brief referring to anything in the record that might arguably support the appeal.”

Rule 104 also provides that prior to filing any motion to withdraw, the lawyer must advise his client in writing of his intention to do so. The cli ent then has 30 days in which to notify the Supreme Court if he still wishes to proceed with the appeal. If the client does not communicate with the Supreme Court, the motion will be granted and the appeal dismissed. If the client does express a desire to proceed, the Supreme Court will review the legal points raised. If the court finds them not to be frivolous, “it may grant counsel’s motion to withdraw but will prior to submission of the appeal afford the indigent the assistance of new counsel, to be appointed by the trial court.” Iowa Rule App. Proc. 104(/).

The Iowa procedure is very similar to that prescribed by this Court in Anders v. California, 386 U. S. 738 (1967).

3

Dodson also asserted pendent claims for malpractice and breach of an oral promise to prosecute the appeal.

4

The Courts of Appeals for the Seventh and Eighth Circuits have held that public defenders do act under color of state law in their representation of indigent defendants. See Robinson v. Bergstrom, 579 F. 2d 401, 405-408 (CA7 1978) (public defender acts under color of state law but is absolutely immune from suit under § 1983); 628 F. 2d 1104 (1980) (case below). The Fifth and the Tenth Circuits have held that they do not. See Slavin v. Curry, 574 F. 2d 1256, 1265 (CA5), modified on other grounds, 583 F. 2d 779 (1978); Espinoza v. Rogers, 470 F. 2d 1174, 1175 (CA10 1972). The Third and Ninth Circuits have supported the latter position in dicta, in cases in which they have held that public defenders are entitled to absolute immunity from suit under § 1983. See Brown v. Joseph, 463 F. 2d 1046, 1048 (CA3 1972), cert. denied, 412 U. S. 950 (1973); Miller v. Barilla, 549 F. 2d 648, 650 (CA9 1977).

The petition for certiorari in this case also presented an immunity question. The petitioners asked us to decide whether public defenders are entitled to the same absolute immunity as judges, see Bradley v. Fisher, 13 Wall. 335 (1872), and prosecutors, see Imbler v. Pachtman, 424 U. S. 409 (1976). As we hold that a public defender does not act under color of state law when performing the traditional functions of counsel to a criminal defendant, we need not reach the immunity issue.

5

The Court has reiterated this definition in subsequent cases. See, e. g., Screws v. United States, 325 U. S. 91 (1945); Monroe v. Pape, 365 U. S. 167 (1961).

6

See Burger, Counsel for the Prosecution and Defense — Their Roles Under the Minimum Standards, 8 Am. Crim. L. Q. 2, 6 (1969). This view of the public defender’s obligations to his client has been accepted by virtually every court that has considered the issue. See, e. g., Espinoza v. Rogers, supra, at 1175; Brown v. Joseph, supra, at 1048.

7

See, e. g., Skolnick v. Martin, 317 F. 2d 855 (CA7 1963); Dotlich v. Kane, 497 F. 2d 390 (CA8 1974). This is true even of cases in which a private attorney has been assigned to represent an indigent defendant. See, e. g., Page v. Sharpe, 487 F. 2d 567, 570 (CA1 1973); Hall v. Quillen, 631 F. 2d 1154, 1156 (CA4 1980); Mulligan v. Schlachter, 389 F. 2d 231, (CA6 1968); French v. Corrigan, 432 F. 2d 1211, 1214 (CA71970), cert. denied, 401 U. S. 916 (1971); Barnes v. Dorsey, 480 F. 2d 1057, 1061 (CA8 1973).

8

Ferri v. Ackerman, 444 U. S. 193, 204 (1979):

“[T]he primary office performed by appointed counsel parallels the office of privately retained counsel. Although it is true that appointed counsel serves pursuant to statutory authorization and in furtherance of the federal interest in insuring effective representation of criminal defendants, his duty is not to the public at large, except in that general way. His principal responsibility is to serve the undivided interests of his client. Indeed, an indispensable element of the effective performance of his responsibilities is the ability to act independently of the Government and to oppose it in adversary litigation.”

9

Although lawyers are generally licensed by the States, “they are not officials of government by virtue of being lawyers.” In re Griffiths, 413 U. S. 717, 729 (1973).

10

See 628 F. 2d, at 1110.

11

This rule has been adopted verbatim as DR 5-107 (B), Iowa Code of Professional Responsibility for Lawyers, printed in Iowa Rules of Court 526 (1981). The rule is “mandatory in character,” and a lawyer who violated it would be “subject to disciplinary action” by the Iowa courts. Id., at 477. See Sanchez v. Murphy, 385 F. Supp. 1362, 1365 (Nev. 1974) (“The personal attorney-client relationship established between a deputy [public defender] and a defendant is not one that the public defender can control. The canons of professional ethics require that the deputy be ‘his own man’ irrespective of advice or pressures from others. A deputy public defender cannot in any realistic sense, in fulfillment of his professional responsibilities, be a servant of the public defender. He is, himself an independent officer”).

12

Relying on such cases as Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961), and Moose Lodge No. 107 v. Irvis, 407 U. S. 163 (1972), the respondent claims that the State’s funding of criminal defenses makes it a “joint participant” in that enterprise, locked in a “symbiotic relationship” with individual public defenders. He urges us to hold on this theory that public defenders act under color of state law within the meaning of § 1983. We cannot do so. In both Burton and Moose Lodge the question was whether “state action” was present. In this case the question is whether a public defender — who is concededly an employee of the county — acted “under color of state law” in her representation of Russell Dodson. Although this Court has sometimes treated the questions as if they were identical, see United States v. Price, 383 U. S. 787, 794, and n. 7 (1966), we need not consider their relationship in order to decide this case. Our factual inquiry into the professional obligations and functions of a public defender persuades us that Shepard was not a “joint participant” with the State and that, when representing respondent, she was not acting under color of state law.

13

The dissenting opinion, post, at 328, describes the public defender as “a full-time state employee, working in an office fully funded and extensively regulated by the State and acting to fulfill a state obligation.” The dissent reasons from this description that, for purposes of determining the “under color of state law” question, the function performed by the public defender is immaterial. There is no difference in this respect, the dissent contends, between administrative functions, see Branti v. Finkel, 445 U. S. 507 (1980), and a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding. This view ignores the basic distinction that in the latter capacity a public defender is not acting on behalf of the State; he is the State’s adversary.

14

See ABA Standards for Criminal Justice, Commentary to 4-3.9 (2d ed. 1980) (“No lawyer, whether assigned by the court, part of a legal aid or defender staff, or privately retained or paid, has any duty to take any steps or present dilatory or frivolous motions or any actions that are unfounded according to the lawyer’s informed professional judgment. On the contrary, to do so is unprofessional conduct”); ABA Standing Committee on Ethics and Professional Responsibility, Informal Opinion 955, Obligation to Take Criminal Appeal, reprinted in 2 Informal Ethics Opinions 955-956 (1975) (like court-appointed lawyer, private counsel “ethically, should not clog the courts with frivolous motions or appeals”). See also Nickols v. Gagnon, 454 F. 2d 467, 472 (CA7 1971).

15

See ABA Standards for Criminal Justice, Commentary to 4r-3.9 (2d ed. 1980) (noting that lawyers assigned to indigent prisoners are often put under pressure to “engage in dilatory or frivolous tactics”).

16

See Iowa Code, Ch. 336A (1981). A public defender appointed pursuant to the state statute is directed to “prosecute any appeals or other remedies before or after conviction that he considers to be in the interest of justice.” § 336A. 6.

17

The view is unfortunate. Our adversary system functions best when a lawyer enjoys the wholehearted confidence of his client. But confidence will not be improved by creating a disincentive for the States to provide postconviction assistance to indigent prisoners. To impose § 1983 liability for a lawyer’s performance of traditional functions as counsel to a criminal defendant would have precisely that effect.

18

In addition to possible relief under state tort law, an indigent prisoner retains the right to initiate state and federal habeas corpus proceedings. For an innocent prisoner wrongly incarcerated as the result of ineffective or malicious counsel, this normally is the most important form of judicial relief.

19

We do not disturb the theory of cases, brought under 18 U. S. C. § 242, in which public defenders have been prosecuted for extorting payment from clients’ friends or relatives “under color of. . . law .. . .” See, e. g., United States v. Senak, 477 F. 2d 304 (CA7), cert. denied, 414 U. S. 856 (1973).