The opinion of the court was delivered by: POLLAK
Consuewella Africa, a member of "MOVE," was a defendant in a lengthy criminal trial which took place last summer and fall in the Philadelphia Court of Common Pleas. The Judge who presided at the trial was Honorable Levy Anderson. Ms. Africa was charged with homicide and other offenses. The charges grew out of the extended and ominous confrontation resulting from MOVE's refusal to permit Philadelphia officials to inspect its Powelton Village headquarters a confrontation which culminated calamitously in the death of a police officer and the razing of the MOVE building.
On September 18, 1980, while the trial before Judge Anderson was still in progress, Ms. Africa filed in this court an application for leave to file, in forma pauperis, a complaint alleging that Judge Anderson and A. Benjamin Johnson, Esquire an attorney appointed by Judge Anderson to conduct Ms. Africa's defense were violating her federally guaranteed religious liberty in two respects. The first claim was that "Judge Levy Anderson, along with attorney A. Benjamin Johnson, forced a jury on me against my will, against my religion." The second claim challenged the role of Mr. Johnson as Ms. Africa's court-imposed counsel: "We (members of MOVE) are fixed in principle, steady in cohesion, strong as the foundation of a massive tree. I am a lawyer. I am a doctor. I am the governor of self. After stating this in court, in the presence of Judge Levy Anderson and attorney A. Benjamin Johnson, both arrogantly refused to adhere to my religion, denying me the right of self-representation."
Ms. Africa's complaint sought (1) a declaratory judgment that the challenged procedures "are acts of religious prosecution of plaintiff's (sic) religion, the teaching of JOHN AFRICA, and harassment," and (2) "compensatory damages" in the sum of $ 20,000,000 levied against Judge Anderson and $ 10,000,000 levied against Mr. Johnson.
Ms. Africa's application was referred to Magistrate Hall, who has filed a detailed and thoughtful Report and Recommendation which places Ms. Africa's submission in clear focus:
1. Magistrate Hall has determined that Ms. Africa is entitled to proceed in forma pauperis. Her application so to proceed will, therefore, be approved.
2. Assuming arguendo that there is substantive merit in Ms. Africa's assertion that her religious freedom has been infringed upon by what has transpired at her criminal trial, the question arises whether Ms. Africa is entitled to press her claims for damages and declaratory relief either against Judge Anderson or against Mr. Johnson.
A. On the authority of Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978), Magistrate Hall properly concluded that Ms. Africa's damage claim against Judge Anderson must be dismissed: ".... judges defending against § 1983 actions enjoy absolute immunity from damages liability for acts performed in their judicial capacities." Supreme Court of Virginia v. Consumers Union, 446 U.S. 719, 100 S. Ct. 1967, 64 L. Ed. 2d 641 (1980).
B. Magistrate Hall is further of the view that Judge Anderson enjoys no immunity with respect to Ms. Africa's prayer for a declaratory judgment. I agree. Slavin v. Curry, 574 F.2d 1256, 1264 (5th Cir. 1978)
; Sparks v. Duval County Ranch Co., Inc., 604 F.2d 976, 980-81 (5th Cir. 1979), affirmed sub nom. Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980).
A. Magistrate Hall has concluded that Ms. Africa's complaint does not state a cause of action against Mr. Johnson under 42 U.S.C. § 1985(3). I concur in this conclusion. As Magistrate Hall properly holds, that statutory provision is addressed to conspiracies to deny the equal protection of the laws (see Griffin v. Breckenridge, 403 U.S. 88, 91 S. Ct. 1790, 29 L. Ed. 2d 338 (1971)), not conspiracies to infringe upon First Amendment liberties.
B. Magistrate Hall has also concluded that Mr. Johnson cannot be sued by Ms. Africa under 42 U.S.C. § 1983: "By representing Ms. Africa in his capacity as a court-appointed attorney, Mr. Johnson is not acting "under color of state law' .... the critical prerequisite to the prosecution of a suit under that section." This analysis is clearly right: While some ambiguity shrouds the status, for Section 1983 purposes, of a public defender (cf. Brown v. Joseph, 463 F.2d 1046, 1048 (3rd Cir. 1972), cert. denied, 412 U.S. 950, 93 S. Ct. 3015, 37 L. Ed. 2d 1003), "(privately) retained and court-appointed private attorneys have unanimously been held not to act under color of state law." Caruth v. Geddes, 443 F. Supp. 1295, 1299 n.1 (N.D.Ill.1978). See Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972); Steward v. Meeker, 459 F.2d 669 (3rd Cir. 1972); Voytko v. Ramada Inn of Atlantic City, 445 F. Supp. 315, 329 (D.N.J.1978); 36 A.L.R.Fed. 594 (1978). However, when a person not acting "under color of state law" is charged with collaborating with a state official to misapply state power to the detriment of a third person's federally protected rights, both the state official and his private collaborator are suable under section 1983. Chief Judge Lord made this very point in Kovacs v. Goodman, 383 F. Supp. 507, 509 (E.D.Pa.1974), explicating Judge Wood's opinion in Johnson v. Crumlish, 224 F. Supp. 22 (E.D.Pa.1963): "In Johnson, the (private) attorney was alleged to have conspired with state officers to violate the plaintiff's constitutional rights. Judge Wood properly concluded that "individuals who allegedly joined or cooperated with state officials who acted under color of state law, are subject to liability under the Civil Rights Act.' " Since in this case Ms. Africa has charged, in effect, that Judge Anderson and Mr. Johnson have conspired to utilize the judicial machinery of the Commonwealth to her constitutional detriment, Ms. Africa may proceed under Section 1983 not only against Judge Anderson, but also against Mr. Johnson unless Mr. Johnson as a court-appointed counsel, has some measure of immunity from suit.
C. Were Mr. Johnson a public defender, he would, like Judge Anderson, be wholly shielded from damage claims arising under Section 1983. Brown v. Joseph, supra; Caruth v. Geddes, supra; Robinson v. Bergstrom, 579 F.2d 401 (7th Cir. 1978).
"Arguably," as Judge Prentice Marshall observed in Caruth v. Geddes, supra, the principles conferring immunity on public defenders "could be applied equally to privately retained and court-appointed private attorneys engaged in criminal defense." 443 F. Supp. at 1299 n.1.
Judge Marshall found it unnecessary to resolve that question in Caruth v. Geddes, and added that in the generality of Section 1983 cases the question was not significant for the reason that private attorneys, even when court-appointed, were not acting "under color of state law" and hence were not suable under Section 1983. But, as I have held above, Ms. Africa's complaint, generously read, defines this case as one of the very few Section 1983 cases in which a private attorney is suable because he is alleged to have conspired with a person clothed with and exercising state authority. It would seem anomalous not merely to hold Mr. Johnson suable, but also to find him liable in damages where his co-defendant, Judge Anderson, is immune. Such an asymmetry could, nonetheless, be thought to be required by the Supreme Court's recent decision in Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980), unanimously sustaining the Fifth Circuit's determination that private conspirators sued under Section 1983 for their corrupt collaboration with an allegedly bribed judge do not share the judge-conspirator's immunity from damage claims. However, I conclude that Dennis v. Sparks is fundamentally distinguishable from the case brought by Ms. Africa. Ms. Africa's complaint challenges trial procedures allegedly ordained by Judge Anderson and merely facilitated by Mr. Johnson; the Judge, not defense counsel, is the prime malefactor in Ms. Africa's perception, as evidenced, for example, by the comparative ad damna ($ 20,000,000 as against Judge Anderson; $ 10,000,000 as against Mr. Johnson). By contrast, the rule of Dennis v. Sparks is responsive to a situation ...