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June 30, 1964

Pietro Mario PUGLIANO, Plaintiff,
Paul STAZIAK, Peter Pollice, Leonard Monti, Enoc N. Johnson, Thomas Welsh, Vincent Tambura, Rita Henderson, and Marion Sarnic, Defendants

The opinion of the court was delivered by: MARSH

On January 29, 1964, this member of the court granted plaintiff's petition for leave to proceed in forma pauperis, 28 U.S.C. § 1915, and directed the filing of his complaint. The complaint alleges that defendants, Staziak, Pollice and Monti, acting under color of law in their capacities as police officers of the City of Pittsburgh, formed a conspiracy with defendant, Sarnic (a private individual), to deprive Pugliano of his constitutional rights when the said police officers 'deliberty induced Mr. Sarnic to give false evidence against the plaintiff causing him to be falsely indicted and convicted, even though evidence, which was in the possession of the police officers at that time, revealed plaintiff was in no way involved in any crimes.' The other defendants are Enoc N. Johnson, a police magistrate of the City of Pittsburgh, who presided over preliminary hearings on criminal charges against Pugliano, Sarnic, and one Geraldine Blair, and then bound that trio over for Grand Jury action; Rita Henderson, a private individual, who testified at one of those preliminary hearings and purportedly induced Geraldine Blair to give a false statement implicating Pugliano in certain crimes; Thomas Welsh, the prosecuting attorney at the criminal trial of Pugliano, Sarnic, and Blair; and Vincent Tamburo, *fn1" a member of the Legal Aid Society and defense counsel for Pugliano at the criminal trial. These latter defendants are alleged to have become members of the conspiracy formed by the police officers and Sarnic by virtue of certain alleged acts and omissions incident to the preliminary hearings (committed by defendants Johnson and Henderson) and to the criminal trial itself (committed by defendants Welsh and Tamburo). The complaint seeks to recover damages from the defendants pursuant to §§ 1983-1986, 42 U.S.C., *fn2" and asserts jurisdiction under 28 U.S.C. § 1343.

 Failure to state a claim upon which relief can be granted.

 In an action for damages under the Civil Rights Act, the plaintiff must allege highly specific facts. United States ex rel. Hoge v. Bolsinger, 211 F.Supp. 199 (W.D.Pa.1962), aff'd 311 F.2d 215 (3d Cir. 1962), cert. denied 372 U.S. 931, 83 S. Ct. 878, 9 L. Ed. 2d 735; Roberts v. Barbosa, 227 F.Supp. 20 (S.D.Cal.1964); cf. Winkler v. Pringle, 214 F.Supp. 125 (W.D.Pa.1963), aff'd 324 F.2d 613 (3d Cir. 1963), cert. denied, 84 S. Ct. 1169. It is not enough to state bare conclusory allegations without support in facts alleged. United States ex rel. Hoge v. Bolsinger, supra; Winkler v. Pringle, supra; Powell v. Workmen's Compensation Bd. of State of New York, 327 F.2d 131 (2d Cir. 1964); Crawford v. Lydick, 179 F.Supp. 211 (W.D.Mich.1959), aff'd 280 F.2d 426 (6th Cir. 1960); Dunn v. Gazzola, 216 F.2d 709 (1st Cir. 1954); Ortega v. Ragen, 216 F.2d 561 (7th Cir. 1954); Yglesias v. Gulfstream Park Racing Ass'n, 201 F.2d 817 (5th Cir. 1953); McGuire v. Todd, 198 F.2d 60 (5th Cir. 1952); Copley v. Sweet, 133 F.Supp. 502, 507-508 (W.D.Mich.1955), aff'd 234 F.2d 660 (6th Cir. 1956), cert. denied 352 U.S. 887, 77 S. Ct. 138; Campbell v. Glenwood Hills Hospital, Inc., 224 F.Supp. 27 (D.Minn.1963); Williamson v Waugh, 160 F.Supp. 72 (S.D.W.Va.1958).

 The complaint gives no hint of the nature of the 'false evidence' Sarnic was 'induced' to give by the police officers, nor the nature of the 'evidence' in the possession of the police officers which purportedly 'revealed plaintiff was in no way involved in any crimes.' It avers that defendant, Rita Henderson, 'entered' the conspiracy when she induced one Geraldine Blair to give to some unspecified person a false statement regarding the plaintiff, without revealing the nature of such alleged false statement or stating facts indicating that Henderson knew of or associated herself with the alleged conspiracy formed by the police officers and Sarnic. It avers that defendant, Johnson, 'entered the conspiracy formed by the others, by deliberately submitting to the whims (unspecified) of Rita Henderson'; that he conducted the plaintiff's preliminary hearings in a manner 'in direct conflict with the required procedures of his office'; that he bound plaintiff over for Grand Jury action 'on the false statement made by Geraldine Blair' even while concurrently binding Geraldine Blair over for perjury with regard to such statement; that he refused to hold the preliminary hearing in abeyance pending the tardy arrival of plaintiff's counsel; *fn3" and that he 'refused to take action against Rita Henderson, when it was learned she induced Geraldine Blair to give the false statement against plaintiff.' The complaint alleges that plaintiff was found guilty by a jury on two counts of burglary, seven counts of forgery and uttering of written instruments, and one count of aggravated assault and battery 'as a result of the conspiracy formed by the herein named defendants', but states no facts indicating even the remotest causal connection between such convictions and any alleged wrongdoing by the defendants, Henderson or Johnson. As in the case of Rita Henderson, the complaint does not aver that Johnson knew of or associated himself with any conspiracy on the part of Sarnic and the police officers. Nor does the complaint aver that the only evidence presented at the preliminary hearing to justify holding Pugliano for the Grand Jury was the 'false statement' given by Geraldine Blair or that such 'false statement' or any testimony by Geraldine Blair was presented against plaintiff at the criminal trial. Any suggestion, if such it is meant to be, that the plaintiff suffered damage compensable under §§ 1983 or 1985 when defendant Johnson failed to institute criminal proceedings against Rita Henderson for alleged subornation of perjury is patently frivolous.

 As to the defendant, Welsh, the complaint avers that at or about the time of the criminal trial, he 'did willfully, with malice aforethought, and under the color of law, join the conspiracy formed by the others, and used subversive methods' to gain plaintiff's convictions; that he was in possession of evidence which purportedly revealed plaintiff's innocence and yet prosecuted him; and that he knowingly used perjured evidence to secure plaintiff's convictions. It is not averred what 'subversive methods' or 'perjured evidence' Welsh is supposed to have employed at the trial, nor what evidence was in his possession that 'revealed' plaintiff's innocence. Nor is it alleged that Welsh had any knowledge of a conspiracy formed beforehand by the other defendants.

 As to the defendant, Tamburo, the complaint avers that 'the records will reveal that Mr. Tambura was a part of the conspiracy which was already formed to falsely convict and deprive plaintiff of his Constitutional Rights.' *fn4" This is 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 *fn5" (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. *fn6" 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. *fn7" 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), *fn8" 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. *fn9" 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. *fn10" 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 ...

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