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SPRAGUE v. FITZPATRICK

January 9, 1976

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



The opinion of the court was delivered by: DITTER

 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 ...

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