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January 26, 1973

Arnold HAMILTON, Plaintiff,
Hon. D. Donald JAMIESON, President Judge, Common Pleas Court, et al., Defendants

Huyett, District Judge.

The opinion of the court was delivered by: HUYETT

Plaintiff, Arnold Hamilton, seeks damages in this civil rights action under 42 U.S.C. §§ 1983-85 (1970). The pro se complaint consists of a document entitled "Complaint: Violation of Civil Rights" and an accompanying affidavit. The complaint, by itself, is too vague and conclusory to survive a motion to dismiss, but the accompanying affidavit will be construed as a part of the complaint. The two documents taken together apparently inform the defendants of the alleged facts and events giving rise to plaintiff's alleged cause of action.

 Arnold Hamilton originally sought $100,000 damages, a copy of a ballistics report, and certain ballistics information. He has submitted an unopposed motion for leave to amend his complaint to delete the demand for the ballistics report and other information. Consequently, the only relief sought by plaintiff is $100,000 of damages.

 The plaintiff alleges that the defendants by their conduct denied him his civil rights at a criminal trial prosecuted by the Commonwealth of Pennsylvania in Philadelphia. At the trial, plaintiff Arnold Hamilton was convicted of murder. The evidence indicated that on December 29, 1967 he entered the maternity ward of the Hospital of the Women's Medical College, where his wife had just given birth and that there he shot and killed his wife. That conviction is currently on appeal to the Pennsylvania Supreme Court. The plaintiff has previously attacked his conviction in a habeas corpus action entitled United States ex rel. Arnold Hamilton v. Edward J. Hendrick, Superintendent Philadelphia County Prisons, Civil Action No. 71-434 (E.D.Pa. July 26, 1971) which was dismissed for failure to exhaust state remedies as required by 28 U.S.C. § 2254(b) (1970).

 The defendants have moved for a dismissal pursuant to Fed.R.Civ.P. 12(b) for failure to state a cause of action upon which relief can be granted. The motion of each defendant or group of defendants will be considered separately because different facts are alleged against each defendant. All the defendants who were employed by the Commonwealth of Pennsylvania argue among other things, that they are protected by the doctrine of immunity. This argument will also be dealt with individually for each defendant because the application of the doctrine varies depending on the position held by each defendant and the facts alleged against each defendant.

 Plaintiff, to oppose defendants' motions, has filed a document entitled "Arnold Hamilton's Statement of Facts Showing Genuine Issue for Trial under Rule 56(e)." This document describes more fully and precisely some of the events alleged in his complaint, but is completely nonresponsive to the motions to dismiss.



 Arlen Spector is named a defendant in the caption of this action, but his name appears nowhere in the text of the complaint or the accompanying affidavit. This fact alone is sufficient for a dismissal. United States ex rel. Tyrrell v. Speaker, 471 F.2d 1197, at 1204 (3d Cir. 1973). Perhaps the plaintiff intended to allege facts supporting a respondeat superior rationale for holding Arlen Spector liable, or perhaps he intended to support a theory that the District Attorney was negligent in supervising the work of his assistants. These possibilities, however, are pure speculations. We cannot hold Arlen Spector liable on a theory of respondeat superior absent allegations of participation in the misconduct, knowledge of the misconduct, or even ordinary negligence. Mills v. Larson, 56 F.R.D. 63 at 66, 67 (W.D.Pa. 1972). Federal immunity *fn1" protects Arlen Spector from any theory of recovery based on ordinary negligence absent an allegation of bad faith or actions outside the scope of his jurisdiction. *fn2"

 The two Assistant District Attorneys who prosecuted the plaintiff are specifically accused of several allegedly wrongful acts. First, they allegedly withheld from evidence and from Arnold Hamilton a cartridge and a bullet found in the body of the deceased. It is a denial of due process for prosecutors to withhold from the defense any evidence possibly favorable to the accused. Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). The failure to turn over the bullet might give rise to a civil rights cause of action if the plaintiff alleged the fact that the prosecutors acted in bad faith or alleged facts and circumstances from which bad faith might be inferred. Not only did the plaintiff here fail to allege any such circumstances, but also according to the testimony of Arnold Hamilton in the criminal proceeding, the bullet and cartridge could not possibly be exculpatory. Moreover, Arnold Hamilton wanted the items to support a theory that someone else fired the first shot. This theory was not proposed until after the trial was concluded and Arnold Hamilton had been convicted. *fn3" The principles in Brady do not apply because the evidence was not reasonably exculpatory and was not asked for during or before the trial.

 The plaintiff also accuses the Assistant District Attorneys of acting in concert with defense attorneys to drug him so he would testify about "distasteful" matters. *fn5" This accusation is beyond the scope of prosecutor's immunity because the drugging would have to be done with intent to deny a fair trial by depriving Arnold Hamilton of his Fifth Amendment right to remain silent. In addition, if his own counsel were allegedly involved, he would be denied the right to effective assistance of counsel. The statute of limitations governing the allegation, however, has run as discussed below.

 The motion of Arlen M. Spector, William J. Stevens and Anthony G. Bateman, District Attorneys for the County of Philadelphia, to dismiss the ...

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