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October 20, 1980

Leroy BEANS, Jr., Warden of Lehigh County Prison, John E. Roberts, Lehigh County Solicitor, William H. Platt, D. A. of Lehigh County, County of Lehigh

The opinion of the court was delivered by: TROUTMAN


During the past ten years civil rights petitions filed in federal court by state prisoners seeking redress for alleged violations of constitutional rights have increased by almost 400%. *fn1" Many of the prisoners request release from incarceration. The instant case, however, involves a rare and somewhat unusual prayer for relief: plaintiff seeks to enjoin the defendants from excluding his entry into a state prison.

 In mid-January 1980, plaintiff, an unlicensed bail-bondsman who worked at the Lehigh County, Pennsylvania, prison for seven years, instituted this action seeking damages and injunctive relief from county officials responsible for a recent policy change which denied access to the prison to all unlicensed bail-bondsmen. The clerk of the court assigned the matter initially to another judge of this court, who conducted several months of pre-trial proceedings. The complaint alleges that defendants-Lehigh County, the warden, county solicitor and district attorney-conspired inter se to deny plaintiff his "right" to interview county prisoners during the normal course of business. Plaintiff construes this allegedly arbitrary and capricious action as violative of rights secured by the First, Fifth, Eighth and Fourteenth Amendments. Plaintiff also adds a pendent state claim of tortious interference with contract rights by alleging that defendants specifically and wrongfully intended to interfere with his employment contract by excluding him from the prison. Plaintiff invokes jurisdiction under the Civil Rights Act of 1871, 42 U.S.C. §§ 1983 and 1985(3), 28 U.S.C. §§ 1331 and 1343, and directly under those constitutional amendments allegedly violated.

 The district attorney subsequently moved to dismiss the complaint on the twin theories that plaintiff's allegations, termed vague and conclusory, were insufficient to state a claim under § 1983 and that, in acting in his official capacity as a prosecutor, he is absolutely immune from suit thereunder. See generally Mancini v. Lester, 630 F.2d 990, (3d Cir. 1980). Seven days later, and before the Court had the opportunity to rule on defendant's pending motion, plaintiff moved for a preliminary injunction seeking essentially the same relief sought in the original complaint. The Court and counsel discussed these motions at a March 11, 1980 pre-trial conference and the Court ordered that all discovery, pre-trial proceedings and motions for summary judgment be filed by May 16, 1980, and set trial for June 24, 1980. The Court further warned that failure to comply with the order could result in sanctions or dismissal.

 Defendants subsequently filed a timely motion for summary judgment. Opposing this motion, plaintiff submitted an affidavit which defendants, in turn, moved to strike. One week later, and only two days before the court-ordered deadline for the completion of all pre-trial proceedings, plaintiff moved for leave to file an amended complaint pursuant to Fed.R.Civ.P. 15(a). *fn2" Opposing the motion, defendant asserted that this latest motion was a bad faith and frivolous attempt by plaintiff to extend the imminent discovery deadline. Five days before the scheduled trial this case was reassigned to our calendar with the following unresolved motions pending before the Court: plaintiff's motion for a preliminary injunction, plaintiff's motion to amend, the district attorney's motion to dismiss, all other defendants' motion to strike facts from plaintiff's affidavit and for summary judgment, and a motion by plaintiff's counsel to withdraw.


 Generally, a motion to amend the complaint will be granted "freely" when the interests of justice so require. Fed.R.Civ.P. 15(a). However, where plaintiff files a motion to amend after defendant has moved for summary judgment the motion to amend will not be granted unless the party seeking amendment can show not only that the proposed amendment has "substantial merit", Verhein v. South Bend Lathe, Inc., 598 F.2d 1061, 1063 (7th Cir. 1979), but also come forward with "substantial and convincing evidence" supporting the newly asserted claim. Artam v. International Harvester, Inc., 355 F. Supp. 476, 481 (W.D.Pa.1972). Cf. Glesenkamp v. National Mutual Insurance Co., 71 F.R.D. 1, 4 (N.D.Cal.1974) "[plaintiff's] understandable desire to avoid the effect of defendant's motion for summary judgment is insufficient reason for infusing life into a case ..."). This more demanding burden, which the party seeking amendment bears at this procedural juncture, evolves from the truism that "prejudice to the non-moving party is the touchstone for denial of the amendment". Cornell & Co., Inc. v. Occupational Safety and Health Administration, 573 F.2d 820, 823 (3d Cir. 1978).

 To make this determination, courts look to the proposed amendment, any supporting evidence, and the degree of prejudice accruing to the defendant if the motion is granted. The proposed amendment in the case at bar consists of three paragraphs which allege that

(A). [in] exercise of his First Amendment rights, Plaintiff spoke with members of the Federal Bureau of Investigation conducting an investigation into alleged official corruption in Lehigh County and supplied them with information which may indicate criminal wrongdoing on the part of officials and employees of Lehigh County.
(B). In exercise of his First Amendment rights, the Plaintiff worked against the election efforts of Defendant, Platt.
(C). The exclusion of Plaintiff from the Lehigh County prison was the unlawful exercise of political patronage power by the Defendant, Platt, to reward two political supporters who were and are the only two business competitors of the Plaintiff's employer, ABC (Bonding Company), and further, to penalize the Plaintiff herein for his exercise of his constitutional right to free speech, namely, his discussions with the F.B.I., and his political activities against Defendant, Platt.

 The warden, district attorney and county defendants characterize this proposed amendment as an "eleventh hour attempt to ... insert ... scandalous matter ... in a desperate attempt to salvage a frivolous claim". Defendants' Brief in Opposition to Plaintiff's Motion to Amend at 3. Defendants further point out that plaintiff has failed to produce any evidence supportive of his claim, that plaintiff has engaged in only minimal and limited discovery, that completed discovery does not support plaintiff's claim and, as such, plaintiff's assertion that he currently seeks to amend because of facts uncovered during the discovery process is a bad faith misrepresentation to the Court.

 However, defendants do not attack several paragraphs of plaintiff's affidavit. In one paragraph the affidavit states that plaintiff actively opposed the election of defendant district attorney and that aside from plaintiff's employer only one other surety agent provided bail bonds in Lehigh County. Furthermore, plaintiff indicated through this affidavit that he provided the Federal Bureau of Investigation and the district attorney of Lehigh County with specific information concerning allegations of criminal misconduct by Lehigh County employees. The District Attorney refused to act on this information, whereas the United States Attorney's office investigated the matter and subpoenaed plaintiff to appear before a federal grand jury convened in Philadelphia during April 1980. These allegations sufficiently ...

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