ON APPEAL FROM ORDER OF THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil Action No. 73-31).
Biggs, Adams and Garth, Circuit Judges.
Petitioner Tunnell's complaint, brought under 42 U.S.C. § 1983, seeks $600,000.00 in damages against the defendants. He alleges: (1) that he was denied access to the courts; (2) that he was denied the right to bail; and (3) that he was deprived of a fair trial. As to his first claim (denial of access to the courts), the district court granted defendants' motions to dismiss. As to Tunnell's remaining claims, the district court granted defendants' motions for summary judgment. Tunnell v. Wiley, 369 F. Supp. 1260 (E.D. Pa. 1974). This appeal followed. We affirm.
The facts which led to the filing of Tunnell's complaint began with his conviction and imprisonment on November 22, 1968, for a homicide in Philadelphia. Prior to the completion of his sentence, Tunnell was permitted to leave prison on a pre-release program. While on release from prison, he was charged with attacking two teenagers in West Philadelphia and was arrested on December 30, 1971. On March 19, 1972, the Philadelphia Bulletin published an article which forms the basis of petitioner's present § 1983 claim of denial of due process. Published under defendant Wiley's by-line, the article read, in relevant part:
OFFICIALS CITE EARLY RELEASE IN PAROLEE'S ATTACK ON TWO YOUTHS
'I burned them in the eyes so they couldn't tell the man who did this.'
The crime was called 'one of the most atrocious in the crime annals of the city' by First Assistant District Attorney Richard A. Sprague.
The balance of the article was devoted to a graphic description of the alleged criminal assault, a summary of Tunnell's prior criminal record, and a reference to Tunnell's wife and family. It concluded with the following:
Thirteen months after the publication of this article, on May 4, 1973, Tunnell was tried and convicted in a Pennsylvania state court. An appeal from that conviction is currently pending in the Pennsylvania Superior Court.
It is the publication of the March 19, 1972, article in the Philadelphia Bulletin that forms the basis of ...