presumably the conclusion to be drawn from certain other of plaintiff's allegations, to wit:
'On or about May 23, 24, 1962, herein named defendant, Vincent Tambura, an attorney and member of the Legal Aid Society, was appointed by the Court to defend the plaintiff. The records will reveal that plaintiff never saw Mr. Tambura prior to trial to prepare a defense, except ten minutes prior to the selection of the jury. As a result, Mr. Tambura tried to induce the plaintiff to enter a plea of guilty to all charges against him. When plaintiff refused to do so, Mr. Tambura did willfully and with malice aforethought, conduct the plaintiff's defense in such a manner so as to bring about a conviction.'
Aside from the fact that the complaint fails to aver the means allegedly employed by Tamburo to bring about plaintiff's convictions, there is no allegation that Tamburo was even remotely aware of any conspiracy afoot among the other defendants. Unless he wronged plaintiff in furtherance of a conspiracy participated in by persons acting under color of state law, this court would not have jurisdiction of any suit against him. It is clear that redress for the invasion by private individuals
(not acting in conspiracy with state officers) of the civil rights of another must be sought in the state courts absent diversity of citizenship. Williams v. Yellow Cab Co. of Pittsburgh, Pa., 200 F.2d 302 (3d Cir. 1952), cert. denied sub nom. Dargan v. Yellow Cab Co., 346 U.S. 840, 74 S. Ct. 52, 98 L. Ed. 361; Koch v. Zuieback, 194 F.Supp. 651 (S.D.Cal.1961), aff'd 316 F.2d 1 (9th Cir. 1963); Smith v. Jennings, 148 F.Supp. 641 (W.D.Mich.1957). This jurisdictional limitation also affects the plaintiff's claims against defendants, Henderson and Sarnic, in the absence of adequate allegations that those private individuals conspired with the police officers, police magistrate, or prosecuting attorney.
In the circumstances of this case, the unsupported conclusory allegations of the complaint render it fatally deficient, and, accordingly, the motion to dismiss filed by defendant, Welsh, will be granted for the reason that the complaint fails to state a claim against that defendant upon which relief can be granted.
There is no genuine issue as to any material fact, and the movants for summary judgment are entitled to judgment as a matter of law.
From the pleadings, affidavits, counter-affidavits, testimony, and exhibits on file, it is uncontroverted that on May 24, 1962, the plaintiff was found guilty of two counts of burglary (burglaries committed at the Windhorst Television Sales & Service Company and the Ilcisin Pharmacy, both in Pittsburgh, in November and December, 1961), seven counts of foregery and uttering of written instruments (as to certain blank money orders taken in the Ilcisin burglary), and one count of aggravated assault and battery (perpetrated upon the defendant, Sarnic, in a police station when plaintiff was first confronted with Sarnic's statement that he, Sarnic, had received the Ilcisin money orders from Pugliano). It is also clear that the defendant, Tamburo, in behalf of the plaintiff, promptly made motions in arrest of judgment on the burglary convictions, and that prior to the sentencing the next day (May 25, 1962), the trial judge granted the motion relating to the Windhorst burglary, but denied the motion relating to the Ilcisin burglary. It is also uncontroverted that in late August or early September, 1962, one Frederick Pent confessed to the Ilcisin burglary, whereupon the 2 1/2 to 5-year sentence plaintiff had been sentenced to serve for burglary (concurrently with a 2 1/2 5-year sentence for forgery and uttering of written instruments) was vacated. It also appears that on September 12, 1962, after the sentence for the Ilcisin burglary was vacated, the sentence for forgery and uttering of written instruments was vacated, and plaintiff signed pleas of guilty to the seven counts of forgery and uttering, waiving appointment of counsel and agreeing to pronouncement of sentence forthwith. It further appears that he was then resentenced to a lesser term of 11 1/2 to 23 months on the forgery and uttering counts.
Inasmuch as he has pleaded guilty to some of the crimes for which he had been convicted, and has not shown that he was required to spend additional time in confinement by virtue of the judgment of conviction on the one burglary count, manifestly he has sustained no damage as a result of that conviction even if any of his constitutional rights were violated relative to the procurement thereof.
If the complaint can be read as stating a sufficient claim against any of those defendants who have moved for summary judgment, and we do not think it can be so read, we are convinced that the pleadings, affidavits, counter-affidavits, testimony and exhibits on file show that there is no genuine material issue of fact and that all of the movants for summary judgment are entitled to judgment as a matter of law.
The defendants, Staziak, Pollice, Monti, Johnson, Sarnic, Henderson, and Tamburo, submitted in support of their motions detailed affidavits categorically denying the existence of any such conspiracy or other wrongdoing as was alleged in the complaint. This required plaintiff to 'set forth specific facts showing that there is a genuine issue for trial.' Rule 56(e), Fed.R.Civ. P. He has not done so. Cf. Skolnick v. Lefkowitz, 329 F.2d 716 (2d Cir. 1964). Plaintiff did submit counter-affidavits denying the averments of the movants' affidavits, but, of course, this was not the setting forth of 'facts'. The counter-affidavits also averred, generally, that the transcripts and other records of sundry preliminary hearings and criminal trials (including not only the criminal trial directly at the heart of this suit, but two other full-length criminal trials as well) would support plaintiff's allegations of wrongdoing by the defendants, and at oral argument plaintiff submitted these records as exhibits to show that, in his opinion, there was indeed a genuine material issue of fact to be tried. These exhibits appear to be materials which may properly be considered on motions for summary judgment (6 Moore, Federal Practice, P56.11), but, in our opinion, they do not show facts or circumstances admissible at a trial from which a reasonably minded person can draw an inference of any alleged conspiracy or other actionable wrongdoing which operated to deprive plaintiff of due process. Cf. Morgan v. Sylvester, 125 F.Supp. 380, 389-390 (S.D.N.Y.1954),
aff'd 220 F.2d 758 (2d Cir. 1955), cert. denied 350 U.S. 867, 76 S. Ct. 112, 100 L. Ed. 768. These exhibits, together with the 'false' statement given by Geraldine Blair, testimony given in plaintiff's behalf at the argument by Frederick Pent that, after he confessed to the Ilcisin burglary three months following Pugliano's conviction therefor, one or two of the police officer-defendants tried to persuade him to identify Pugliano as a recipient of the goods stolen in that burglary, and several other highly irrelevant fragments of 'evidence' tendered, were conceded by plaintiff to comprise his entire case against the defendants. Plaintiff contended at oral argument that the existence of the alleged conspiracy is obvious, in that such exhibits and other tendered evidence reveal that the police officers 'supported' the 'perjured' testimony given at the criminal trial by Sarnic; that the police officers testifying at the trial occasionally made errors respecting their recollections of the chronology of preliminary hearings and other events attendant to the processing of the criminal charges; that the Commonwealth's evidence at the criminal trial failed to include all relevant facts concerning the Windhorst and Ilcisin burglaries, the disclosure of which would have presumably resulted in a verdict of acquittal on all charges; and, in effect, that Tamburo continually failed to follow plaintiff's direction and legal advice in the conduct of the defense. This posture is absurd. While it is true that direct evidence is rarely available to prove a conspiracy, and that resort must generally be made to circumstantial evidence thereof, we do not believe that a jury or other fact-finder can reasonably infer a conspiracy of the type alleged by plaintiff from the mere facts that theinvestigating police officers and the alleged perjurer (Sarnic) testified at the same trial and that the police officers' testimony concerning events and dates appeared deficient in some immaterial respects, or by reading trial transcripts and passing judgment upon whether the prosecuting attorney and defense attorney acted conspiratorially when they asked or failed to ask certain questions of witnesses, or made or failed to make various objections to evidence, or made or failed to make various offers of evidence.
Nor, in our opinion, may a fact-finder reasonably infer conspiracy or other wrongdoing from the failure of the prosecuting attorney to elicit testimony from the investigating officers that on the occasions of the Windhorst and Ilcisin burglaries, the premises adjoining each of those establishments were also burglarized, and, yet, plaintiff was not charged with such other burglaries. This last, apparently, was the nature of the evidence which, according to plaintiff, would have indicated to the investigating officers and prosecuting attorney that plaintiff was innocent of all charges -- burglaries, forgery and uttering of written instruments and aggravated assault and battery. A reading of the transcript of the criminal trial (plaintiff's Ex. 2) discloses that the Commonwealth had no direct testimony at all that Pugliano had committed the Windhorst and Ilcisin burglaries. Rather, the two burglary counts were submitted to the jury upon evidence that the Windhorst and Ilcisin establishments were in fact burglarized and upon Sarnic's testimony that some of the money orders stolen in those burglaries were in Pugliano's possession shortly after the commission of the burglaries, and, in fact, that he (Sarnic) joined plaintiff and Geraldine Blair in forging and uttering them. Plaintiff has not shown or attempted to show that at the time of his criminal trial the investigating officers (Staziak, Pollice and Monti) had discovered that anyone else was responsible
for the burglaries of the premises adjoining the Windhorst and Ilcisin places of business. The failure of the officers testifying at trial (Staziak and Monti) to offer evidence of the burglaries of such adjoining premises when, as of that time, they had no evidence linking plaintiff or anyone else to such burglaries scarcely amounted to the suppression of evidence revealing plaintiff's innocence of any of the crimes for which he was convicted, nor does it appear consistent with anything but proper caution. If anything, such testimony could have been prejudicial to the plaintiff.
Inasmuch as plaintiff has invited us to peruse the various exhibits offered by him at argument on the motions for summary judgment, we might make mention of some of the facts stated in plaintiff's Ex. 1, a transcript of the preliminary hearing commenced before defendant, Johnson, on February 16, 1962, and continued to and concluded on February 26, 1962. The transcript indicates that on February 16th, Geraldine Blair testified that she had received the Ilcisin money orders from Sarnic. On February 26, 1962, the defendant, Staziak, testified at the continued hearing that Geraldine Blair had on February 19th voluntarily given the police a sworn statement that Pugliano had given the Ilcisin money orders to Sarnic and herself. Geraldine Blair thereupon testified that she had given such a sworn statement, but that the statement was a lie induced by promises from Rita Henderson. She then reverted to her original position that Sarnic had given her the money orders. She also testified that she and the plaintiff (Pugliano) were married on February 21st.
Referring again to plaintiff's Ex. 2, the criminal trial transcript, we note that Geraldine Blair Pugliano, while herself pleading guilty to all charges prior to the presentation of the Commonwealth's case against the plaintiff, was not called to testify in behalf of her new husband in spite of Sarnic's damaging testimony against him.
We attach no significance to these circumstances, but recite them only to provide a more complete background against which this action may be viewed.
In sum, we are convinced that plaintiff has not demonstrated the existence of a genuine, material, triable issue of fact regarding any conspiracy or other wrongdoing alleged in the complaint. Rather, the court is irresistibly led to the conclusion that the plaintiff convinced himself after his trial that everyone who participated in bringing about the convictions, i.e., the investigating officers, the committing magistrate, witnesses who testified before the magistrate, a witness at the trial, the prosecuting attorney, and his own counsel (who defended him gratuitously) unlawfully conspired to secure his convictions through the use of perjured testimony and suppression of exculpatory evidence. It is easy for a disgruntled prisoner to state his conclusions, and to even believe, that those responsible for the real or imagined injustice were guilty of the rankest kind of malice. But he cannot go to trial in a Civil Rights Act case solely on the basis of his speculative beliefs and the unreasonable inferences he seeks to draw from volumes of court records. Mindful of our obligation to sit as arbiters of state court decisions only when constitutionally necessary, we find absolutely no reason to undertake such a role in this case.
Other grounds have been asserted in behalf of the various motions made by the defendants, including contentions that plaintiff's action is barred by the applicable analogous state statute of limitations relating to malicious prosecution actions,
that the defendants, Welsh (prosecuting attorney) and Johnson (police magistrate) are cloaked with quasi-judicial immunity against suits of this nature,
that the doctrines of collateral estoppel and res judicata prevent the reconsideration in this civil damage suit of issues involved in prior criminal proceedings, and that 1983 and 1985 cannot be used to collaterally attack standing judgments of conviction (at least, not prior to the exhaustion of state remedies). But in view of the result we have reached, it is unnecessary for us to decide those questions.
We express our warmest appreciation to Kalman A. Goldring, Esq., for undertaking as amicus curiae to advise whether the court had subject-matter jurisdiction and whether the complaint stated a claim upon which relief could be granted. Mr. Goldring performed exemplary service for the court in this regard and merits the highest commendation for accepting and performing this most difficult assignment.
An appropriate order will be entered.