# Polk County v. Dodson > Supreme Court of the United States · December 14, 1981 · 454 U.S. 312 URL: https://www.frixlaw.com/law-library/cases/9428553 ## Case - **Full name:** POLK COUNTY Et Al. v. DODSON - **Court:** Supreme Court of the United States - **Decided:** December 14, 1981 - **Citations:** 454 U.S. 312; 102 S. Ct. 445; 70 L. Ed. 2d 509; 1981 U.S. LEXIS 136 - **Precedential status:** Published - **Opinion:** Dissent by Blackmun - **Judges:** Powell, Burger, Brennan, White, Marshall, Rehnquist, Stevens, O'Con-Nor, Blackmun - **Cited by:** 4,966 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9428553 ## How later opinions describe it (automated extraction) - holding that a defense lawyer paid by the state is not a state actor because the relationship between the lawyer and client is “identical to that existing between any other lawyer and client, except for the source of … payment. The legal system posits that a … lawyer best serv… - holding that, while public defender does not act under color of state law when performing traditional functions as counsel to a defendant in a criminal proceeding, public defender may act under color of state law when performing other functions on behalf of the state such as h… - holding that public defender is not a "state actor," reasoning that public defender's role is traditionally filled by retained counsel, for which state office and authority are not needed, and rejecting argument that "employment relationship" alone establishes state-actor elem… - holding that a public defender does not act “under color of state law” because he “works under canons of professional responsibility that mandate his exercise of independent judgment on behalf of the client” and because there is an “assumption that counsel will be free of stat… - finding, where the plaintiff alleged that an Offender Advocate assigned an ineffective appellate counsel and established the rules and procedures for counsel, that plaintiff failed to present a claim because he relied on “a respondeat superior theory of liability.” ## Opinion text Justice Blackmun, dissenting. One perhaps should be particularly circumspect when he finds himself in solitary dissent. See Commissioner v. “Americans United” Inc., 416 U. S. 752, 763 (1974) (dissenting opinion). On careful reflection, however, I am convinced that my position is a valid one, and I therefore set forth my views in opposition to those of the Court. When a full-time state employee, working in an office fully funded and extensively regulated by the State and acting to fulfill a state obligation, violates a person’s constitutional rights, the Court consistently has held that the employee acts “under color of” state law, within the meaning and reach of 42 U. S. C. § 1983 . Because I conclude that the Court’s decision in this case is contrary to its prior rulings on the meaning of “under color of” state law, and because the Court charts new territory by adopting a functional test in determining liability under the statute, I respectfully dissent. I The Court holds for the first time today that a government official’s “employment relationship” is no more than a “relevant factor” in determining whether he acts under color of state law within the meaning of § 1983. Ante, at 321. Only *329 last Term, in Parrott v. Taylor, 451 U. S. 527 (1981), the Court noted that defendant-prison officials unquestionably satisfied the under-color-of-state-law requirement because they “were, after all, state employees in positions of considerable authority.” Id., at 535-536 . Thus began, and ended, the Court’s discussion of the color-of-law question in that case. As in Taylor , the county employee sued in this action presumptively acts under color of state law. See also Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 157, n. 5 (1978). The definition of “under color of” state law relied upon by the Court here and articulated in United States v. Classic, 313 U. S. 299 (1941), requires that the defendants in a § 1983 action have committed the challenged acts “in the course of their performance of duties” and have misused power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law . . . .” Id., at 325-326. See also Screws v. United States, 325 U. S. 91, 110 (1945) (plurality opinion). Respondent’s allegations place this case squarely within both components of that definition. Respondent challenges action taken by petitioner Shepard, a full-time county employee, while acting in her official capacity and while exercising her responsibilities pursuant to Iowa law. See generally Iowa Code §§336A.3.2, 336A.6 (1981). The Court implicitly concedes that the Offender Advocate’s assignment of Shepard to handle respondent’s appeal was action under color of law. But the Court then fails to recognize that it was by virtue of that assignment that Shepard had the authority to represent respondent and to seek permission to withdraw as his counsel, thereby allegedly violating his constitutional rights. The authority of a privately retained attorney to represent his clients is derived from the client’s selection of the lawyer. A public defender’s power, however, is possessed by virtue of the State’s selection of the attorney and his official employment. *330 The Court insists that public defenders, unlike other state employees, are free from state control because they are not subject to administrative direction — both because ethical standards require that their professional judgment not be sacrificed to the interests of their employers and because the State is obligated to provide indigent defendants with independent advocates. 1 This distinction ignores both precedent and reality. The Court long has held that a state official acts under color of law when the State does not authorize, or even know of, his conduct. See, e. g., Adickes v. S. H. Kress & Co., 398 U. S. 144, 152 (1970); Monroe v. Pape, 365 U. S. 167 (1961). That the State did not instruct Shepard to withdraw from respondent’s case is therefore irrelevant to the question whether she acted under color of state law in so doing. Moreover, the present case is indistinguishable from Estelle v. Gamble, 429 U. S. 97 (1976). There the Court held that a prison doctor’s deliberate indifference to a prisoner’s medical needs is prohibited by the Eighth Amendment and may be the subject of a § 1983 claim. The prisoner’s § 1983 *331 complaint in Gamble stated claims against Dr. Gray in his capacity both as medical director for the Texas Department of Corrections and as treating physician. Gray was sued because he allegedly had given the plaintiff substandard medical care — the doctor’s duty to the public and his custodial and supervisory functions were not at issue. 2 If the Court had determined that Gray acted under color of state law only in his capacity as a custodian and administrator, it would have dismissed the claims against him for want of subject-matter jurisdiction, rather than on the merits. The Court today holds that a public defender cannot act under color of state law because of his independent ethical obligations to his client. Yet Gamble cannot be distinguished on this ground. An individual physician has a professional and ethical obligation to his patient just as an attorney has to his client. Like a public defender, an institutional doctor’s responsibilities to a patient may conflict with institutional policies and practices. Moreover, Dr. Gray was fulfilling the State’s duty to supply medical care to prison inmates; similarly, the public defender is dedicated to satisfying the State’s obligation to provide representation to indigent defendants. Finally, like respondent, who had no say in the selection of Shepard as his attorney, inmate Gamble had no role in the choice of Gray as his doctor. The Gamble Court did not find that color of state law evaporated in the face of a professional’s independent ethical obligations. I cannot see why this case is different. As is demonstrated by the pervasive involvement of the county in the operations of the Offender Advocate’s Office, *332 the Court, in my view, unduly minimizes the influence that the government actually has over the public defender. The public defender is not merely paid by the county; he is totally dependent financially on the County Board of Supervisors, which fixes the compensation for the public defender and his staff and provides the office with equipment and supplies. See Iowa Code §§336A.5, 336A.9 (1981). The Board likewise is statutorily empowered to determine “indigency” and to prescribe the number of assistant attorneys and other staff members considered necessary for the public defender. See §§336A.4, 336A.5. The county’s control over the size of and funding for the public defender’s office, as well as over the number of potential clients, effectively dictates the size of an individual attorney’s caseload and influences substantially the amount of time the attorney is able to devote to each case. The public defender’s discretion in handling individual cases — and therefore his ability to provide effective assistance to his clients — is circumscribed to an extent not experienced by privately retained attorneys. See, e. g., Robinson v. Bergstrom, 579 F. 2d 401, 402-403 (CA7 1978) (public defender delayed five and one-half years in filing appellate brief because of “an error in his judgment regarding his caseload,” which was 600 to 900 cases per year). Similarly, authority over the appointment of the public defender and his staff, see Iowa Code §§336A.3, 336A.5 (1981), gives the State substantial influence over the quality of the representation indigents receive. In addition, the public defender is directed to file an annual report with the judges of the district court of any county he serves, the State’s Attorney General, and each county’s Board of Supervisors, setting forth in detail all cases handled by the defender’s office during the preceding year. §336A. 8. This requirement suggests that the government has some supervisory control over the public defender’s office, or at least that the public defender will be wary of antagonizing the officials to whom he must report, and to *333 whom he owes his appointment and the very existence of the office. See §§336A.3, 336A.1. And surely the public defender’s staff must conform to whatever policies and regulations the office or the State imposes, including those aimed at ensuring the effectiveness of representation. In this case, for example, while the county may not have directed petitioner Shepard to withdraw from respondent’s case, 3 it certainly could have established general guidelines describing the factors a public defender should consider in determining which appeals are frivolous and the proper treatment of such appeals. 4 On the basis of the Court’s opinion in Estelle v. Gamble, 429 U. S. 97 (1976), and the county’s pervasive involvement with the Offender Advocate’s Office in this case, I necessarily conclude that the presumption that a state employee acts *334 under color of state law when exercising his official duties is not overridden by the public defender’s ethical obligations to his client. 5 II Although holding that petitioner Shepard may not be held liable under § 1983 for withdrawing from respondent’s appeal, the Court limits its ruling to cases where the public defender performs “a lawyer’s traditional functions as counsel to a defendant in a criminal proceeding.” Ante, at 325. The Court appears to concede that a public defender may act under color of state law when performing unspecified administrative and investigative functions, or even when acting as an advocate — if his conduct is “nontraditional,” or if the plaintiff pleads and proves that the State influenced the attorney’s representation. See ante, at 325, and n. 19, and 322. These attempts to draw distinctions based on function are unconvincing. *335 The Court never before has held that a government employee acts under color of state law while performing some of his official duties but not while performing others. The Court drew no such distinctions in Estelle v. Gamble, supra, although it could have adopted the Court’s approach today and held that an institutional physician acts under color of state law when acting in his custodial and administrative roles, but not when treating a patient. I can only conclude that the Court creates this artificial distinction in order to avoid a conflict with Branti v. Finkel, 445 U. S. 507 (1980), where the Court did not pause to question whether the defendant-public defender acted under color of state law. Imbler v. Pachtman, 424 U. S. 409 (1976), cited by the Court, ante, at 325, does not support such line-drawing. Based on policy considerations that are inapplicable here, see n. 8, infra, the Court held in Imbler that the prosecutor enjoys absolute immunity for actions taken in his role as an advocate. The Court refused to decide, however, whether the same policies require immunity for prosecutors acting in their administrative or investigative roles. Not only did the Imbler Court therefore fail to endorse the functional test adopted here, but it pointed to the difficulties it foresaw in implementing such a test. See 424 U. S., at 431, n. 33 . *336 Moreover, the question of immunity — what type of affirmative defense is to be afforded a state official sued under § 1983 — is completely different from the issue whether an employee acts under color of state law — a determination that goes to a federal court’s subject-matter jurisdiction over a complaint. If a defendant does not act under color of state law, a federal court has no power to entertain a § 1983 complaint against him. The immunity doctrine, which is based on common-law traditions and policy considerations, is a defense that must be pleaded and is not relevant to a court’s power to consider the case. Even officials protected by absolute immunity act under color of state law, and Imbler did not indicate to the contrary; in fact, absolute immunity protects a prosecutor from § 1983 liability only as long as his actions are within the scope of the immunity. See Imbler, 424 U. S., at 419, n. 13 . The Court nowhere suggested in Imbler that the functional test could properly be used in any other context. The Court also disclaims any intent to disturb cases in which public defenders have been prosecuted under the criminal counterpart of §1983, 18 U. S. C. §242 , for extorting payment from clients’ friends or relatives, ante, at 325, n. 19, citing United States v. Senak, 477 F. 2d 304 (CA7), cert. denied, 414 U. S. 856 (1973), apparently because the Court does not consider such conduct a “traditional” function of an attorney. 6 Yet the Court of Appeals’ holding in Senak that the attorney acted under color of law is inconsistent with the *337 Court’s line-drawing here. 7 As the final loophole, the Court apparently leaves open the possibility that an indigent defendant could plead and prove that the State so influenced the public defender assigned to his case as to make the public defender liable under § 1983. See ante, at 322. What type of state intervention is sufficient, and how a plaintiff is supposed to allege such facts before discovery, are not specified. In essence, the Court appears to be holding a public defender exempt from § 1983 liability only when the alleged injury is ineffective assistance of counsel. Not only is it disturbing to see the Court adopt a hierarchy of constitutional rights for purposes of § 1983 actions, but such an approach will be extremely difficult to implement. I envision the Court’s functional analysis as having one of two results— both, in my view, unfortunate. If the federal courts in effect adopt a per se rule and dismiss all § 1983 complaints against public defenders, the most egregious behavior by a public defender, even if unquestionably the result of pressures by the State, will not be cognizable under § 1983. Alternatively, the courts may attempt diligently to implement the Court’s ruling and dismiss only those § 1983 claims based on the public defender’s “traditional” functions as an advocate. The outcome then, I fear, will be lengthy and involved hearings on the merits to determine whether the court has subject-matter jurisdiction — the very result the Court wishes to avoid. hH I — I I am sympathetic with the Court’s desire to protect public defenders, who represent indigent defendants in good faith, from a §1983 suit by every dissatisfied client. But the Court’s concern for public defender programs — and its seeming hostility to the merits of respondent’s claims, see ante, at 323-324, and n. 17 — do not justify the approach taken by the *338 Court today. To recognize that public defenders act under color of state law would not transform every legal malpractice into a constitutional violation. Cf. Estelle v. Gamble, 429 U. S., at 106-106 . Presumably, some immunity would be provided public defenders sued under § 1983. 8 The Court always has seen fit before to rely on immunity and the procedures available for dismissing meritless complaints in order to protect state officials. See, e. g., Butz v. Economou, 438 U. S. 478, 507-508 (1978); cf. Ferri v. Ackerman, 444 U. S. 193, 200, n. 17 (1979). I would do the same here. I would affirm the judgment of the Court of Appeals. The Court also says that a public defender’s ethical duties and obligations are the same as those of a privately retained lawyer and concludes that the public defender serves “essentially a private function ... for which state office and authority are not needed.” Ante, at 319. The fact that a state official’s role is parallel to one in the private sector, however, has never before deterred the Court from holding that the former is action under color of state law. Section 1983 is meant to proscribe certain actions by state officials even though identical conduct by private persons is not included within the statute’s scope. Cf. Estelle v. Gamble, 429 U. S. 97 (1976); see also Griffin v. Maryland, 378 U. S. 130, 135 (1964) (“If an individual is possessed of state authority and purports to act under that authority, his action is state action. It is irrelevant that he might have taken the same action had he acted in a purely private capacity. . .”). Although Griffin involved “state action” under the Fourteenth Amendment, “state action” and “under color of state law” have consistently been treated as incorporating identical requirements. See n. 5, infra. Similarly, in O’Connor v. Donaldson, 422 U. S. 563 (1975), the defendant, a psychiatrist and superintendent of a state mental hospital, was not sued for actions taken pursuant to his responsibilities to protect the public; the evidence clearly showed that the plaintiff was hospitalized for reasons other than dangerousness to himself and others. See id., at 567-568, 574, n. 9 . Reasoning that §1983 claims may not be based on the doctrine of respondeat superior, the Court concludes that respondent has not stated a claim against the Offender Advocate, Polk County, or the County Board of Supervisors. See ante, at 325-327. I agree with the Court of Appeals, however, that respondent did allege that these defendants had “established and layed [sic] out the ground rules” for the public defender’s office and had “authorize[d] [petitioner Shepard] to act in the manner prescribed in [the] complaint. . . .” App. 5. Respondent also alleged that other public defenders in the Offender Advocate’s Office had acted in the same manner as had Shepard, and he challenged the “process” by which the office represented indigents. Id., at 13. Although respondent did not point to any particular official policy pursuant to which Shepard had acted in withdrawing from his case, his general allegations of the existence of such a policy, “however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence.” Haines v. Kerner, 404 U. S. 519, 520 (1972). If respondent is unable to substantiate his claims, the complaint, of course, may be dismissed on a motion for summary judgment. This pervasive state control over public defenders distinguishes them from court-appointed attorneys, who are not state officials, who have control over their own caseloads and representations, who depend on the State only for a fee, and with whom the State has no real day-to-day involvement. Although I find the Court’s precedents on the definition of “under color of” state law persuasive here, I also draw support from the Court’s discussions of state action under the Fourteenth Amendment. I find no basis for the Court’s intimation, ante, at 322, n. 12, that the two doctrines incorporate different requirements. See United States v. Price, 383 U. S. 787, 794, n. 7 (1966). To the extent that the Court has analyzed the two concepts separately, it has done so in § 1983 suits against private actors. In Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 157, n. 5 (1978), the Court observed: “Of course, where the defendant is a public official, the two elements of a § 1983 action merge. ‘The involvement of a state official . . . plainly provides the state action essential to show a direct violation of petitioner’s Fourteenth Amendment. . . rights, whether or not the actions of the [officer] were officially authorized, or lawful.’ Adickes v. S. H. Kress & Co., 398 U. S. 144, 152 (1970) (citations omitted).” (Ellipses in original.) The principles articulated in Burton v. Wilmington Parking Authority, 365 U. S. 715 (1961), for discerning state action in the conduct of a private party are therefore helpful by way of analogy. First, the public defender’s office “constitute^ a physically and financially integral and, indeed, indispensable part of the State’s plan,” id., at 723-724 , to fulfill its constitutional obligation to provide representation to indigents. Second, the relation *335 ship between the State and the public defender is a symbiotic one: the State is able to satisfy its responsibility to supply counsel to defendants, and the public defender is gainfully employed. Finally, the State is responsible for the public defender’s office and can attempt to ensure that clients receive effective assistance of counsel, for example, by hiring qualified personnel, providing sufficient funding, and enforcing strict standards of competence. In cases of ineffective assistance by public defenders, then, it may be said that the State “has not only made itself a party to the [representation], but has elected to place its power, property and prestige behind [the public defender’s action]. The State has so far insinuated itself into a position of interdependence with [the attorney] that it must be recognized as a joint participant in the challenged activity . . . .” Id., at 725 . Again, the Court’s hand is forced somewhat by precedent — even those officials afforded absolute immunity from civil damages under § 1983 are susceptible to prosecution under §242 for the willful violation of civil rights. See Imbler v. Pachtman, 424 U. S. 409, 429 (1976). The Court has consistently held that the two provisions incorporate the same under-color-of-state-law requirement. See, e. g., Adickes v. S. H. Kress & Co., 398 U. S. 144, 152, n. 7 (1970); United States v. Price, 383 U. S., at 794, n. 7 . In Senate the Court of Appeals held that a public defender’s demand for compensation from a client was made “ostensibly by virtue of [the attor *338 ney’s] appointment ‘backed by the power of the state,’ ” and that his official position “gave him the opportunity to make the demands and clothed him with the authority of the state in so doing.” 477 F. 2d, at 308 . Similarly, in this case, petitioner Shepard’s authority to withdraw from respondent’s case was derived from her “appointment ‘backed by the power of the state’ her official position “gave her the opportunity” to act so as allegedly to violate respondent’s constitutional rights. 1 do not discuss this issue in detail because the Court does not reach it, but I assume that public defenders should be afforded qualified immunity. Absolute immunity has been extended only to those in positions that have a common-law history of immunity. See, e. g., Pierson v. Ray, 386 U. S. 547, 554-555 (1967). Moreover, public defenders’ jobs do not subject them to conflicting responsibilities to a number of constituencies so that absolute immunity is necessary to ensure principled decisionmaking; in fact, the threat of § 1983 claims by dissatisfied clients may provide additional incentive for competent performance of a public defender’s duties. See Ferri v. Ackerman, 444 U. S. 193, 203-204 (1979). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9428553. Public record. Not legal advice.