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October 16, 1981

Daniel M. GROFF
Judge D. Richard ECKMAN, J. Russell Ober, Dorothy Ann Tompkins, William C. Crosswell, Esq., Theodore S. Danforth, Ronald L. Buckwalter, Esq.

The opinion of the court was delivered by: TROUTMAN


Invoking the Court's jurisdiction pursuant to 28 U.S.C. § 1331 and seeking relief for alleged violations of the Civil Rights Act of 1871, 42 U.S.C. § 1983 and 42 U.S.C. § 1985, plaintiff claiming "loss of time and wages ... anguish and belittlement" seeks recovery from Judge D. Richard Eckman of the Lancaster County, Pennsylvania, Court of Common Pleas; Ronald L. Buckwalter, the district attorney; Theodore S. Danforth, a public defender; William C. Crosswell, J. Russell Ober and Dorothy Ann Tompkins, respectively the solicitor, supervisor and zoning enforcement officer of Elizabeth Township, Pennsylvania. Plaintiff complains that defendants conspired to and actually did illegally search his property. This led to his criminal conviction on unspecified charges. Additionally, plaintiff inveighs against an Elizabeth Township zoning ordinance which he contends is unconstitutional in that it discriminates against poor landowners and tenants and further that this bias is incorporated into the Lancaster County court system. Finally, plaintiff seeks fifty thousand dollars from each of the defendants' personal assets on both counts.

 All defendants move to dismiss asserting various immunities while some alternatively move for a more specific statement. In addressing these motions we are mindful of the requirement that pro se petitions be liberally construed. Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972); Perkins v. Wagner, 513 F. Supp. 904 (E.D.Pa.1981).

 Defendant Eckman properly asserts that Stump v. Sparkman, 435 U.S. 349, 98 S. Ct. 1099, 55 L. Ed. 2d 331 (1978), immunizes his judicial conduct from suit under Section 1983 where there is no allegation to indicate that he acted in any way inconsistent with his judicial authority or jurisdiction. See also Dennis v. Sparks, 449 U.S. 24, 101 S. Ct. 183, 66 L. Ed. 2d 185 (1980); Dudley v. Beans, No. 81-1769 (E.D.Pa. October 1, 1981). Hence, the complaint as it is presently framed does not state a claim against defendant Eckman.

 Defendant Buckwalter, named in plaintiff's complaint as a Lancaster County district attorney, asserts that he is, in fact, a judge in that county and cloaked with judicial immunity. However, for present purposes we assume the veracity of plaintiff's allegations, Walker Process Equipment Co. v. Food Machinery & Chemical Corp., 382 U.S. 172, 86 S. Ct. 347, 15 L. Ed. 2d 247 (1965), and analyze the claims against him as if he were a prosecutor. The allegations against him and defendant Attorney Crosswell appear to assert that they merely "caused to issue a search warrant and a search of plaintiff's property". This complained-of conduct is no more than "initiating a prosecution and presenting the state's case (which is) immune from civil suit for damages under Section 1983". Imbler v. Pachtman, 424 U.S. 409, 431, 96 S. Ct. 984, 995, 47 L. Ed. 2d 128 (1976). Accordingly, assuming that defendant Buckwalter is a prosecutor and not a judge, his actions and those of defendant Crosswell are immune from suit under Section 1983 and will be dismissed. Tate v. Grose, 412 F. Supp. 487 (E.D.Pa.1976).

 Defendants Ober and Tompkins move to dismiss the claims lodged against them personally and in their official capacities for lack of specificity in pleading and lack of jurisdiction. They properly assert that the Third Circuit requires civil rights litigants to plead facts with specificity. Rotolo v. Borough of Charleroi, 532 F.2d 920 (3d Cir. 1976) (per curiam); Hall v. Pennsylvania State Police, 570 F.2d 86 (3d Cir. 1978); Shoemaker v. Allender, 520 F. Supp. 266 (E.D.Pa.1981). Moreover, these defendants assert that plaintiff's failure to do so deprives this Court of jurisdiction. However, the case upon which they rely for this proposition, Burton v. Peartree, 326 F. Supp. 755 (E.D.Pa.1971), antedates Haines v. Kerner, supra, which authorizes broad construction of pro se complaints. In fact, the Burton court dismissed the pro se complaint for failure to comply with Fed.R.Civ.P. 8 which requires a "short and plain showing that the pleader is entitled to relief". We have recently held that "the remedy for a vague complaint is not a motion to dismiss ... but rather for a more particular statement of the claim". Beascoechea v. Sverdrup & Parcel & Associates, 486 F. Supp. 169, 174, n. 5 (E.D.Pa.1980). Since we cannot say at this juncture that it appears "beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief" Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 101-102, 2 L. Ed. 2d 80 (1957), we will deny the motions of Ober and Tompkins to dismiss for failure to plead sufficient facts.

 These same defendants, Ober and Tompkins, argue that plaintiff fails to state a claim upon which relief can be granted. Specifically, they argue that their good faith conduct as township supervisors is immunized from suit under applicable civil rights statutes. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 99 S. Ct. 1171, 59 L. Ed. 2d 401 (1979). There, the court held that members of an interstate planning commission created by compact between two states and authorized to adopt land-use ordinances, were personally immune from liability under applicable Federal Civil Rights legislation. Id. at 405-06, 99 S. Ct. at 1179-1180. Accordingly, to the extent that plaintiff seeks to recover damages personally from defendants Ober and Tompkins, the complaint will be dismissed.

 Defendants Ober and Tompkins are not cloaked with good faith Section 1983 immunity for their official acts. Owen v. City of Independence, 445 U.S. 622, 649, 100 S. Ct. 1398, 1414, 63 L. Ed. 2d 673 (1980). Defendants attempt to distinguish Owen, however, and argue that in discussing the historic distinction between a municipality's "governmental" and "proprietary" functions, the court noted that municipalities exercise broad discretionary powers requiring a delicate balancing of competing considerations. The court further observed that "to review the reasonableness of the city's judgment on these matters would be an infringement upon the powers properly vested in a coordinate and co-equal branch of government". Id. at 648, 100 S. Ct. at 1414. Defendants then argue that plaintiff's inartful and imprecise pleading has failed to identify a constitutionally objectionable policy and, even if it had, that we could not review the city's exercise of its discretionary judgment.

 Defendants' argument fails for two reasons. First, they misconstrue Owen. That part of the opinion upon which they rely centers on the court's discussion of the reasons why many courts had granted municipalities qualified, good faith immunity from suit under Section 1983. The court concluded, however, with the observation that

"a municipality has no "discretion' to violate the federal constitution; ... when a court passes judgment on a municipality's conduct in a § 1983 action, it does not ... second guess the "reasonableness' of the city's decision .... Rather, it looks to whether the municipality has conformed to the requirements of the Federal Constitution" 445 U.S. at 649, 100 S. Ct. at 1415.

 Moreover, plaintiff will not be bound by his inartful pleadings and will be granted leave to amend his complaint, see infra.

 The complaint, as it purports to hold defendant Danforth, a public defender, liable will be dismissed. The law in this Circuit is that such defendants are immune from a Section 1983 suit. Brown v. Joseph, 463 F.2d 1046 (3d Cir. 1972), cert. denied, 412 U.S. 950, 93 S. Ct. 3015, 37 L. Ed. 2d 1003 (1973). Other circuits have adopted a similar rule. Housand v. Heiman, 594 F.2d 923 (2nd Cir. 1979); Miller v. Barilla, 549 F.2d 648 (9th Cir. 1977); United States ex rel. Simmons v. Zibilich, 542 F.2d 259 (5th Cir. 1976); Minns v. Paul, 542 F.2d 899 (4th Cir. 1976). Nothing in Ferri v. Ackerman, 444 U.S. 193, 100 S. Ct. 402, 62 L. Ed. 2d 355 (1979) which considered the "narrow issue", id. at 197, 100 S. Ct. at 406, of whether appointed counsel was immunized from suit for malpractice compels a different conclusion. Other courts have considered the Section 1983 immunity of public defenders after Ferri and agreed with this conclusion. Hall v. Quillen, 631 F.2d 1154 (4th Cir. 1980); Brown v. Schiff, 614 F.2d 237 (10th Cir.), cert. denied, 446 U.S. 941, 100 S. Ct. 2164, 64 L. Ed. 2d 795 (1980); Jackson v. Salon, 614 F.2d 15 (1st Cir. 1980). As such, we believe that White v. Bloom, 621 F.2d 276 (8th Cir. 1980) was incorrectly decided in that it held that Ferri abrogated a public defender's immunity from a Section 1983 claim.

 Plaintiff's second cause of action as set forth in his first amended complaint asserts that defendants conspired inter se to deprive him of due process of law and the privileges secured by the Constitution, thereby violating Section 1985. Plaintiff does not allege, however, the applicable sub-section of Section 1985 under which he is proceeding. Reading the complaint broadly, as we must at this stage, we determine that plaintiff appears to be litigating this matter pursuant to sub-sections (2) and (3).

 To the extent that he is proceeding under sub-section (2), the complaint fails because it does not allege any class-based animus. Jones v. United States, 536 F.2d 269, 271 (8th Cir. 1976), cert. denied, 429 U.S. 1039, 97 S. Ct. 735, 50 L. Ed. 2d 750 (1977); ...

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