APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
Before Aldisert, Rosenn and Weis, Circuit Judges.
In Polk County v. Dodson, 454 U.S. 312, 102 S. Ct. 445, 70 L. Ed. 2d 509 (1981), the Supreme Court held that a public defender does not act "under color of state law" for purposes of 42 U.S.C. § 1983*fn1 when performing a lawyer's traditional function as counsel to an indigent defendant in a state criminal proceeding. Determining that the defender did not act under color of law, the Court did not meet the question of whether she enjoyed absolute or qualified immunity from civil liability.
The appeals before us stem from three separate actions brought by former state criminal court defendants against their lawyers and against an investigator employed by the Defender Association of Philadelphia County. In each case the district court rendered judgment for the defendants, and the plaintiffs have appealed. After oral argument, we reserved decision pending the Supreme Court's decision in Polk County. Counsel have submitted additional briefings on the effect of that decision on these appeals. We now affirm the judgments in No. 81-1646, Black v. Bayer, and No. 81-1763, Bartee v. Yanoff, both because the defendants did not act under color of law under Polk County and because we deem them to be absolutely immune from civil liability under § 1983. In No. 81-1926, Stoica v. Stewart, we hold that the complaint cannot be dismissed pursuant to Polk County because appellant has alleged a conspiracy between his lawyer, the investigator, and the prosecuting attorney, thus converting the private conduct to state action under the teachings of Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980). We conclude, however, that both the public defender and his investigator enjoy absolute immunity, reaffirming our decisions in Waits v. McGowan, 516 F.2d 203, 205-07 (3d Cir. 1975), and Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972), cert. denied, 412 U.S. 950, 93 S. Ct. 3015, 37 L. Ed. 2d 1003 (1973). Accordingly, the judgments of the district courts will be affirmed in all respects.
Lloyd Black, appellant in No. 81-1646, having apparently stabbed a girl friend in the back with a pocket knife, was arrested and charged with simple and aggravated assault, reckless endangerment, and attempted murder. He was represented at a preliminary hearing by appellee Thomas Hurd, a public defender employed by the Defender Association of Philadelphia, a private organization that receives substantial funding from the Commonwealth of Pennsylvania and the City of Philadelphia.*fn2 Black thereafter represented himself until the fourth day of his trial, at which time the court appointed a private attorney, appellee Charles L. Pelletreau, to represent him. A second private attorney, appellee Ronald Jay Bayer, was appointed to represent him at the sentencing proceeding.*fn3 He was sentenced to a term of five to ten years and is now an inmate at the State Correctional Institution at Graterford, Pennsylvania. Black brought this § 1983 action against Hurd, Pelletreau, and Bayer, charging a violation of his civil rights because of ineffective assistance of counsel. He demanded compensatory and punitive damages. Relying on Waits v. McGowan and Brown v. Joseph, which held public defenders immune in § 1983 actions, the district court dismissed the complaint as to Hurd as frivolous, pursuant to 28 U.S.C. § 1915(d). It dismissed the complaint as to Pelletreau and Bayer on the authority of Thomas v. Howard, 455 F.2d 228 (3d Cir. 1972) (per curiam), which teaches that no state action surrounds the activities of private counsel. Black now appears to recognize that Polk County compels affirmance of the judgment, but he suggests that Polk may permit § 1983 liability for the performance of "certain "administrative and possibly investigative functions.' " Second Supplemental Brief for Appellant at 2 (quoting Polk County, -- - U.S. -- at -- , 102 S. Ct. at 453 (50 U.S.L.W. at 4080)). He argues also that public defenders and court-appointed counsel do not enjoy absolute immunity from liability under § 1983.
John H. Bartee, appellant in No. 81-1763, was convicted in state court of robbery, theft, assault, and weapons offenses. He was represented during the criminal proceedings by appellees Michael Yanoff, Maurino J. Rossanese, and Hubert D. Yollin. He first retained private attorney Yanoff for representation at his preliminary hearing. One day before his trial, Bartee advised the state court that he would not be represented by privately retained counsel; and the court then appointed appellee Rossanese, a member of the Public Defender's Office of Montgomery County. Rossanese defended Bartee at trial. Following his convictions, Bartee advised Rossanese that he planned to seek post-conviction relief on grounds of ineffective assistance of counsel. The court permitted Rossanese to withdraw and appointed appellee Yollin, a private attorney not affiliated with the County Public Defender's Office, to represent Bartee in post-trial proceedings. Yollin was paid by the County pursuant to § 7 of the Pennsylvania Public Defender Act, 16 Pa.Stat.Ann. § 9960.7 (Purdon Supp. 1981).
Bartee, who is presently incarcerated at Graterford, filed a complaint in the district court seeking damages under 42 U.S.C. §§ 1983, 1985(2) and (3), 1986, and 1988, and under the fifth and fourteenth amendments to the Constitution. He also requested the court to invoke the doctrine of pendent jurisdiction to consider his malpractice claim against Yanoff under state law. The district court dismissed the complaint as to Rossanese and Yollin on the authority of Ross v. Meagan, 638 F.2d 646 (3d Cir. 1981) (per curiam), Waits v. McGowan, and Brown v. Joseph. It also refused to hear the state claims against Yanoff, explaining that when all federal claims are dismissed before trial any pendent state claims should also be dismissed, Tully v. Mott Supermarkets, Inc., 540 F.2d 187, 196 (3d Cir. 1976), and in addition that " "(i)f the new party sought to be joined is not otherwise subject to federal jurisdiction, there is a more serious obstacle to the exercise of pendent jurisdiction than if parties already before the court are required to litigate a state-law claim.' " Bartee v. Yanoff, 514 F. Supp. 96, 99 (1981) (quoting Aldinger v. Howard, 427 U.S. 1, 18, 96 S. Ct. 2413, 2422, 49 L. Ed. 2d 276 (1976)). On appeal, Bartee presses only the § 1983 claim and the pendent jurisdiction issue.*fn4
Eugene Stoica, appellant in No. 81-1926, was charged with a sex crime in the state court. The court appointed appellee William P. Stewart, a staff lawyer of the Defender Association of Philadelphia County, to represent him at trial. During the course of his representation, Stewart utilized appellee Otis Terry, an investigator employed by the Defender Association, to assist in the preparation of Stoica's defense. Stoica was convicted and is now incarcerated in the state correctional institution at Dallas, Pennsylvania. He filed a § 1983 complaint against Stewart and Terry alleging incompetency of representation and conspiracy with the prosecutor to suppress evidence of his innocence. The district court granted the defendants' motion to dismiss, relying on Waits v. McGowan and Brown v. Joseph. On appeal Stoica argues that public defenders and their investigators should not be absolutely immune from liability for damages under § 1983. He argues also that Polk County does not compel affirmance because private actors Stewart and Terry allegedly conspired with an immune state actor, the prosecuting attorney, thus converting their private conduct into state action under Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980).
When the issue of public defender liability in a § 1983 action first arose in Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972), cert. denied, 412 U.S. 950, 93 S. Ct. 3015, 37 L. Ed. 2d 1003 (1973), this court was confronted with an appeal from the determination by then District Judge Joseph F. Weis, Jr., that in the exercise of his function as a lawyer, a public defender does not act under color of state law. We recognized the merit of Judge Weis' analysis, but opted for a different rationale to affirm the judgment:
Concededly, there are differences between a court-appointed lawyer from a pool of volunteers ... or from an agency funded by private contributions ... and one serving full time in a public office paid by public revenues authorized and mandated by statute.
But the fact that one comes to his court-appointed role as a result of a state-mandated and county-financed system does not, in any respect whatsoever, distinguish his professional responsibility to his client from that of any attorney appointed to serve without pay, or paid by a legal aid society financed largely by private contributions. We find it difficult to perceive "color of law" in the activities in the first category, and deny its existence in the latter. In any event, we do not deem it necessary to decide the question ... because in the view we take, even assuming the color of law requirement to have been met, we hold that a County Public Defender, created under the Pennsylvania statute, enjoys immunity from liability.
The passage of ten years has now demonstrated the wisdom of Judge Weis' original approach, for in Polk County v. Dodson the Supreme Court accepted precisely Judge Weis' theory that in the exercise of his functions as a lawyer the public defender does not act under color of state law:
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. 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 ...