After the remand to this Court by the Circuit Court of Appeals, the Defendants once again moved for a dismissal of the Plaintiff's action pursuant to F.R.Civ.P. 12(b)(6). The Defendants contend that they are protected from suit by the doctrines of executive immunity and good faith in carrying out their duties. F.R.Civ.P. 12(g) provides that if a party makes a motion under "this rule but omits therefrom any defense or objection then available to him which this rule permits to be raised by motion, he shall not thereafter make a motion based on the defense or objection so omitted. . . ." A complete examination of the documents in this case reveals to the Court that the immunity and the good faith issues were raised by the Defendants in this Court in their original motion to dismiss the complaint but were not decided because the Court found that the complaint should be dismissed on other grounds. Since the Defendants did not omit a defense available to them at the time of their first motion to dismiss, the Court should not preclude those issues from being argued anew.
Under the developing case law it is quite apparent that absent highly unusual circumstances the defenses of executive immunity and good faith should be submitted to the jury. Pierson v. Ray, 386 U.S. 547, 557, 87 S. Ct. 1213, 1219, 18 L. Ed. 2d 288 (1967). Chief Justice Warren stated: ". . . if the jury found that the officers reasonably believed in good faith that the arrest was constitutional, then a verdict for the officers would follow . . . ." Pierson v. Ray, supra. Plaintiff in the case before this Court contends that the Defendants conspired with each other to violate the Plaintiff's constitutional rights. If the jury finds that the Defendants did not conspire to do any illegal act but carried forth their duties in good faith, then it would presumably return a verdict in favor of the Defendants.
In Johnson v. Alldredge, 488 F.2d 820 (3d Cir. 1973), the Court defined the scope of the doctrine of executive immunity, as distinguished from the defense of good faith. Leaving aside for a moment the confusion between the two doctrines, the Third Circuit held that a prison warden who gave routine instructions to a corrections officer was protected against suit. The Court, however, found that the correctional officer was not protected by the doctrine. There was no dispute in the Johnson case as to what the warden had actually done with respect to the Plaintiff, and hence the Court of Appeals was able to rule definitively on his immunity. Brad Beightol, on the other hand, alleges that all the Defendants conspired with each other to do an illegal act. In order to determine whether the Defendants in the instant case exercised a "policy-making or judgmental element" and to decide whether their allegedly wrongful acts were "within the outer perimeter" of their authority, to use the Johnson v. Alldredge executive immunity language, it is necessary to know the role of each Defendant as delineated by the evidence received in the case. For this a jury is necessary. See also Fidtler v. Rundle, 497 F.2d 794 (3d Cir. 1974); Scheuer v. Rhodes, 416 U.S. 232, 94 S. Ct. 1683, 40 L. Ed. 2d 90 (1974). Of course, whether a conspiracy existed at all is a question for the jury as well.
An appropriate order will be entered.
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