Likewise, there is nothing in the complaint to indicate that the defendant, Dorothy Arlene Kriner, was acting under color of state law. Simply because she testified in the criminal case against plaintiff does not in any way cloak her with the authority of the state. Thus the complaint must be dismissed as to defendant Kriner.
This complaint also raises the question of whether prosecuting attorneys and a judge can be held liable for acts done in their official capacity. In the recent case of Bauers v. Heisel, 361 F.2d 581 (3d Cir.1966), it was held that prosecuting attorneys have the same immunity from suit as is afforded members of the judiciary. Since the acts complained of were clearly within the authority and jurisdiction of their respective offices, the Hon. George W. Atkins, President Judge of York County; Daniel W. Shoemaker, District Attorney of York County; and Nevin J. Trout, Assistant District Attorney of York County, are immune from civil liability under the Civil Rights Act. Gabbard v. Rose, 359 F.2d 182 (6th Cir.1966). This complaint will also be dismissed as to them.
The immunity to suit that applies to judges of courts of record also applies to members of the minor judiciary. Hardy v. Kirchner, 232 F. Supp. 751, 753 (E.D.Pa.1964); Fraley v. Ramey, 239 F. Supp. 993 (S.D.W.Va.1965). Again, the acts complained of, performed by Alderman Thomas, were within the scope of his jurisdiction and in the performance of his duties. There has been no showing of actions sufficient to abrogate the immunity and the complaint as against Chester D. Thomas, Jr., will be dismissed.
From a reading of the complaint, it is evident that there are no allegations indicating that either Marie Johnson or Clair R. Stine deprived the plaintiff in any way of his civil rights. Moreover, it would appear that the judicial immunity doctrine would shield Clair R. Stine from civil liability for acts performed in his official capacity as Clerk of Court of York County. Harmon v. Superior Court of State of California, 329 F.2d 154, 155 (9th Cir.1964). Accordingly, the complaint will also be dismissed as to the defendants, Marie Johnson and Clair R. Stine.
However, it would appear from first blush, that on the face of the pleadings submitted by plaintiff that there may be valid causes of action against the remaining defendants. At this stage of the proceedings it cannot be said that plaintiff does not have a cause of action against Richard K. Johnson, Henry Ernst, William J. Linker, Robert J. Scutta and Gilbert Reverend. It should be noted that this statement in no way indicates this Court's feelings on the ultimate merits of the complaint and in no way does it preclude the above defendants from making any motions as provided for in the Federal Rules of Civil Procedure.
Accordingly, leave to commence the action, in forma pauperis, as to the defendants Richard K. Johnson, Henry Ernst, William J. Linker, Robert J. Scutta and Gilbert Reverend only, will be granted.
Now, February 24, 1967, in accordance with Memorandum filed this day, it is ordered that the Order dated January 10, 1967, is hereby vacated; that leave to commence an action, in forma pauperis, against defendants Richard P. Noll, Hon. George W. Atkins, Daniel W. Shoemaker, Nevin J. Trout, Dorothy Arlene Kriner, Chester D. Thomas, Jr., Marie Johnson and Clair R. Stine, is hereby denied and that the complaint as to these said defendants is hereby dismissed.
It is further ordered that leave to commence this action, in forma pauperis, against defendants Richard K. Johnson, Henry Ernst, William J. Linker, Robert J. Scutta and Gilbert Reverend, is hereby granted, and the Clerk of Court is directed to provide for service of process in accordance with the provisions of Rule 4(d)(4) of the Federal Rules of Civil Procedure.