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SPRAGUE v. FITZPATRICK

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


January 9, 1976

RICHARD A. SPRAGUE
v.
F. EMMETT FITZPATRICK, JR.

The opinion of the court was delivered by: DITTER

DITTER, J.

 The principal question presented by this case is whether a district attorney's firing of his first assistant for publicly criticizing him presents a colorable claim under the Civil Rights Act of 1871, 42 U.S.C. § 1983. Two cases -- one emanating from the United States Supreme Court and the other from the Court of Appeals for this Circuit -- persuade me that it does not. The complaint accordingly will be dismissed. *fn1"

 Taking as true the allegations of the complaint, Cooper v. Pate, 378 U.S. 546, 84 S. Ct. 1733, 1734, 12 L. Ed. 2d 1030 (1964), and all reasonable inferences deducible therefrom, Curtis v. Everette, 489 F.2d 516, 518 (3d Cir. 1973), cert. denied, 416 U.S. 995, 94 S. Ct. 2409, 40 L. Ed. 2d 774 (1974), the operative facts *fn2" appear to be as follows. Plaintiff Richard A. Sprague was first employed by the City of Philadelphia as an assistant district attorney in February, 1958, and served as first assistant district attorney *fn3" from June, 1966, through December, 1974. The defendant, F. Emmett Fitzpatrick, was elected district attorney in the November, 1973, general election, and in January, 1974, reaffirmed the designation of plaintiff as first assistant.

 Some months later a public controversy arose concerning a series of statements made by the district attorney to the news media regarding the imposition of probation on a criminal defendant whom he allegedly had represented while privately engaged in the practice of law. Essentially, Sprague contends that in these statements Fitzpatrick variously attributed the recommendation of probation to evaluations of the case made by two assistant district attorneys and to an agreement struck by his predecessor and the accused. Sprague further avers he "knew" that defendant's statements were untruthful and when one of the major Philadelphia daily newspapers sought him out asking specific questions concerning Fitzpatrick's comments, he recounted his understanding of how Fitzpatrick had come to recommend probation. The newspaper interview appearing the next day quoted Sprague as disputing seriatim Fitzpatrick's prior statements to the news media. *fn4"

 On the day following the publication of plaintiff's newspaper interview, the parties met, at Fitzpatrick's behest, in his office. The outcome of that meeting was defendant's request that Sprague resign, plaintiff's refusal to do so, and defendant's dismissal of plaintiff from his post effective as of that date.

 Plaintiff subsequently instituted this action, alleging that defendant's termination of his employment constituted a violation of his freedom of speech as guaranteed by the First and Fourteenth Amendments and protected by the Civil Rights Act. *fn5" Although technically this opinion is dispositive of the court's sua sponte inquiry into its subject matter jurisdiction, see note 1, supra, the issue which is ultimately controlling was raised by defendant in each of his motions to dismiss, see note 5, supra.

 At the outset, I shall discuss briefly why Mr. Fitzpatrick's other arguments are insufficient to justify dismissal of the complaint. *fn6" Fairly stated, defendant's first contention *fn7" is that since he was acting as district attorney *fn8" at the time of the acts alleged in the indictment, he is immune from suit. In Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966), cert. denied, 386 U.S. 1021, 87 S. Ct. 1367, 18 L. Ed. 2d 457 (1967), the Court of Appeals for this Circuit held that prosecuting attorneys should enjoy the same immunity as is afforded members of the judiciary. *fn9" The court hastened to add, however, that the immunity of a prosecutor is not unlimited, but rather extends only to acts he performs within the authority and jurisdiction of his office. 361 F.2d at 590-91. By the time the Court of Appeals decided Cambist Films, Inc. v. Duggan, 475 F.2d 887 (3d Cir. 1973), almost seven years after Bauers v. Heisel, supra, its views on prosecutorial immunity had been considerably sharpened and refined. In its per curiam opinion in Cambist Films, supra, the court stated:

 

It is [sic] generally settled principle of law that a district attorney is a "quasi-judicial officer", Commonwealth, ex rel. Specter v. Martin, 426 Pa. 102, 232 A.2d 729 (1967), and in the performance of duties imposed on him by law, he cannot be subjected to personal liability through a common law action. Pennsylvania law has [sic], as a general principle, that quasi-judicial officers cannot be subjected to liability, civil or criminal, for any of their judicial acts, no matter how erroneous, so long as they act in good faith. McNair's Petition, 324 Pa. 48, 187 A. 498 (1936). See discussion 63 Am. Jur. 2d § 289. Federal courts have similarly held. See Bauers v. Heisel, 361 F.2d 581 (3 Cir. 1966). Cambist here refers to the language in Bauers v. Heisel which implied that not all acts of a district attorney should be immune. That case stated that "* * * the immunity of a prosecutor, however, is not without limitation; it is not absolute. The immunity of judges, from which immunity of prosecutors is derivative, does not extend to acts which are clearly outside their jurisdiction." This discussion in Heisel pertains to cases involving alleged violations of the Civil Rights Act, not common law tort actions. In such cases Heisel recognized a distinction that needs be observed between excess of jurisdiction, a circumstance which would not allow liability, as opposed to the clear absence of all jurisdiction over the subject matter, which could result in liability for the judicial official in Civil Rights circumstances. Robichaud v. Ronan, 351 F.2d 533 (9 Cir. 1965); Lewis v. Brautigam, 227 F.2d 124 (5 Cir. 1955). Even considering the possible civil rights problem here, no liability can be attributed to the prosecutor in our present case because he was not acting where he clearly had no jurisdiction. He was investigating an alleged violation of the laws of Pennsylvania, which was within his powers and duties, and the actions which he proscribed in this instance were such as he felt necessary to the enforcement of those laws. Obviously, this case in no way approaches the "clear absence of jurisdiction" standard required for possible liability on the part of the prosecutor.

 475 F.2d at 888-89. *fn10"

 The question here, then, is whether defendant solely by virtue of his status as a quasi-judicial officer, is immune from suit under Section 1983 for his actions in the capacity of an employer. I think quite clearly he is not, and I so hold today. The traditional considerations advanced in support of the doctrine of quasi-judicial immunity, see Bauers v. Heisel, supra, 361 F.2d at 589-90, *fn11" do not demand, and the "well-settled proposition that the employment of a public employee may not, in general, be terminated for [the] exercise of constitutionally protected rights," Leslie v. Philadelphia 1976 Bicentennial Corporation, 343 F. Supp. 768, 769 (E.D. Pa. 1972) *fn12" will not tolerate the wholesale immunity claimed by defendant.

 Defendant's second argument -- that the amended complaint should be dismissed for lack of specificity -- is devoid of merit. It is, of course, the rule in this circuit that Section 1983 actions must be specifically pleaded in order to withstand a motion to dismiss, Kauffman v. Moss, 420 F.2d 1270, 1275 & n. 13 (3d Cir.), cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970); Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967), *fn13" and that broad, conclusory allegations, unsupported by specific factual contentions, are insufficient to state a claim upon which relief may be granted, id.14 It is plain, however, from even a cursory reading of the amended complaint, and from the fact that defendant understood the assertions to such an extent that he was able to identify the decisional authority which support them, *fn15" that the pleading in question easily satisfies the specificity requirement.

 The ground upon which I conclude that the complaint must be dismissed was first raised by Mr. Justice Marshall in a footnote in Pickering v. Board of Education, 391 U.S. 563, 88 S. Ct. 1731, 20 L. Ed. 2d 811 (1968). Pickering involved a high school teacher who was discharged for writing a letter to local newspapers in connection with a proposed tax increase. In his letter he had criticized the manner in which the board of education and the district superintendent of schools had handled prior proposals for raising revenue for the schools. Id. at 564, 88 S. Ct. at 1732-33. The Court found that some statements in Pickering's letter were true, some although not malicious were false, *fn16" but all fell within the protection of the First Amendment. Id. at 572-74, 88 S. Ct. at 1736-38.

 With respect to the possible impact of Pickering's letter upon the context of an ongoing employer-employee relationship, the Court stated:

 

The statements are in no way directed towards any person with whom appellant would normally be in contact in the course of his daily work as a teacher. Thus no question of maintaining either discipline by immediate superiors or harmony among coworkers is presented here. Appellant's employment relationships with the Board and, to a somewhat lesser extent, with the superintendent are not the kind of close working relationships for which it can persuasively be claimed that personal loyalty and confidence are necessary to their proper functioning.

 Id. at 569-70, 88 S. Ct. at 1735. Then, in a footnote pregnant with implications for the case at bar, the court said:

 

It is possible to conceive of some positions in public employment in which the need for confidentiality is so great that even completely correct public statements might furnish a permissible ground for dismissal. Likewise, positions in public employment in which the relationship between superior and subordinate is of such a personal and intimate nature that certain forms of public criticism of the superior by the subordinate would seriously undermine the effectiveness of the working relationship between them can also be imagined. We intimate no views as to how we would resolve any specific instances of such situations, but merely note that significantly different considerations would be involved in such cases.

 Id. at 570 n. 3, 88 S. Ct. at 1735 n. 3. This chord was echoed by Mr. Justice Rehnquist who, writing for the plurality in Arnett v. Kennedy, 416 U.S. 134, 160-61, 94 S. Ct. 1633, 1647, 40 L. Ed. 2d 15 (1974), cited Pickering for the proposition that "in certain situations the discharge of a government employee may be based on his speech without offending guarantees of the First Amendment." *fn17"

 Prior to Roseman v. Indiana University of Pennsylvania, at Indiana, 520 F.2d 1364 (3rd Cir. 1975), little had been said in the way of decisional authority concerning precisely what the "significantly different considerations" alluded to in Pickering might be. One circuit judge suggested that such factors might include "the need for loyal and sympathetic employees *fn18" in positions of discretion, *fn19" the need to ensure obedience to state policy, and the need to prevent impropriety or its appearance." Nunnery v. Barber, 503 F.2d 1349, 1361 (4th Cir. 1974) (Butzner, J., dissenting). *fn20"

 By far the most instructive pre- Roseman case, however, was Meehan v. Macy, 129 U.S. App. D.C. 217, 392 F.2d 822, modified, 138 U.S. App. D.C. 38, 425 F.2d 469 (1968), affirmed en banc, 138 U.S. App. D.C. 41, 425 F.2d 472 (1969). Meehan was an employee of the Panama Canal Zone who had been discharged for arranging the printing and distribution of a scurrilous satire of the governor of the Canal Zone and his policies. The court recognized that although a free society values robust, vigorous, and essentially uninhibited public speech by citizens, when such speech by government employees produces intolerable disharmony, inefficiency, dissension, and even chaos, it may be subject to reasonable limitations, at least concerning matters within the duties, discretion and judgment entrusted to the employee involved. 302 F.2d at 833. Then, in an oft-quoted *fn21" passage epitomizing the pragmatism which all too frequently escapes judicial attention, Judge Leventhal stated:

 

We think it is inherent in the employment relationship as a matter of common sense if not common law that an employee in appellant's circumstances cannot reasonably assert a right to keep his job while at the same time he inveighs against his superiors in public with intemperate and defamatory lampoons. We believe that [an employee] cannot fairly claim that discharge following an attack like that presented by this record comes as an unfair surprise or is so unexpected and uncertain as to chill his freedom to engage in appropriate speech.

 Id. at 835. I fully agree, and find this reasoning quite apposite to the case at bar.

 Roseman v. Indiana University of Pennsylvania, at Indiana, supra, represents the first definitive consideration by the Court of Appeals for the Third Circuit of those aspects in Pickering germane to this case. *fn22" Roseman was an associate university professor who alleged that the non-renewal of her contract was at least in part in retaliation for her exercise of protected speech. Specifically, during the period of time in which her renewal was under consideration by the faculty committee on merit and tenure, she involved herself in a controversy concerning the chairmanship of her department. She complained to the dean of the college of arts and sciences that she believed that the acting chairman was wrongfully suppressing the application of the candidate she favored. The following month, at the invitation of the dean, she repeated these charges at a meeting of the department's teaching staff. One week later, the committee on merit and tenure, of which the acting chairman was a member, decided not to renew her contract, and university officials subsequently ratified that decision.

 In its judgment for the defendants the district court rejected Roseman's free speech argument on two grounds. First, the court found that there were adequate work-related reasons for not renewing her contract. *fn23" Alternatively, the court concluded that her statements to the dean and at the faculty committee meeting were not protected by the First Amendment, and therefore permissibly might form part of the basis for her dismissal. *fn24" Although the Court of Appeals disagreed with the district court's reasoning on the first ground, *fn25" it affirmed, on the basis of Pickering, supra, the alternative rationale.

 In distinguishing Roseman from Pickering, Judge Van Dusen said:

 

The communications made by the plaintiff in the case before us differ from Pickering's in two crucial respects. In the first place, Roseman's expressions were essentially private communications in which only members of the Foreign Languages Department and the Dean of the College of Arts and Sciences were shown by the plaintiff to have had any interest. Pickering's letter to the editor, urging the electorate with respect to a pending tax proposal, was, by contrast, a classic example of public communication on an issue of public interest. In Pickering, as in other cases, the Supreme Court inquired into the public nature of a communication in determining the degree of First Amendment protection. As Roseman's communications were made in forums not open to the general public and concerned an issue of less public interest than Pickering's, the First Amendment interest in their protection is correspondingly reduced.

 

The second respect in which Roseman's communications differ from Pickering's is in their potentially disruptive impact on the functioning of the Department. Pickering's attacks were on a remote superintendent and school board; in contrast, Roseman's called into question the integrity of the person immediately in charge of running a department which, it is fair to assume, was more intimate than a school district. The district court found that "plaintiff's attacks upon Faust's integrity in a faculty meeting would undoubtedly have the effect of interfering with harmonious relationships with plaintiff's superiors and co-workers." 382 F. Supp. at 1339. In making this finding, the district court reflected a similar concern expressed by the Supreme Court, which noted that Pickering's statements were "in no way directed towards any person with whom [ Pickering ] would normally be in contact in the course of his daily work as a teacher." Pickering, supra at 569-70. Because of this, Pickering's case raised "no question of maintaining either discipline by immediate superiors or harmony among co-workers." Id. at 570. The same obviously cannot be said of Roseman's faculty meeting accusations directed at the Acting Chairman of her Department. [footnote omitted].

 520 F.2d at 1368-69. On the basis of those distinctions, the court concluded that Roseman's communications fell outside the protection of the First Amendment, and that therefore the University did not infringe her freedom of speech even if it considered her statements in deciding not to renew her contract. *fn26"

 In terms of the aforementioned criteria, the instant case falls somewhere between Pickering and Roseman. Plaintiff here, like Pickering but unlike Roseman, aired his views in a forum accessible to the general public, namely a newspaper. *fn27" As in Roseman but not Pickering, however, plaintiff's communications here "called into question the integrity of the person immediately in charge," 520 F.2d at 1368, and were "directed toward [a] person with whom [he] would normally be in contact in the course of his daily work," Pickering, supra, 391 U.S. at 569-70, 88 S. Ct. at 17. That plaintiff's statements would interfere with harmonious relationships with his co-workers, and indeed that they have totally precluded any future working relationship between him and the defendant, are beyond question. *fn28" Indeed, plaintiff himself implicitly concedes this point by his failure to seek relief in the form of reinstatement to his former position. *fn29"

  The question becomes, then, whether the result in Pickering or Roseman controls where an employee's communications touch upon matters of public concern *fn30" and are channelled through a public forum, *fn31" but nevertheless have such a calamitous and disruptive impact as to foreclose any possible effective working relationship between the employee and his immediate superior. I conclude that notwithstanding the public character of plaintiff's statements, Roseman is the stronger precedent here. Plaintiff's statements here are strikingly analogous to Roseman's accusations against her acting department chairman and quite unlike Pickering's attacks upon a "remote superintendent and school board." Plaintiff must have known and expected that the inevitable result of his statements -- whether they be true or false -- would be the abrupt termination of his employment. The practicalities inherent in the superior-subordinate situation presented here dictate that defendant's dismissal of plaintiff not give rise to liability under the Civil Rights Act.

 For all the foregoing reasons, then, the complaint will be dismissed.

 AND NOW, this 9th day of January 1976, for the reasons expressed in the foregoing opinion, the plaintiff's complaint is hereby dismissed.

 BY THE COURT:

 J. William Ditter, Jr. / J.


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