L. Ed. 2d 674 (1974). The complaint fails to allege that any of the defendants did, or wrongfully failed to do, any act following the trial of Iseley, Jr., or have threatened to do, or wrongfully refrain from doing, any action in the future. Thus, there is presently no threat against which injunctive relief could properly issue. See Raitport v. Provident National Bank, 451 F. Supp. 522, 530 (E.D. Pa. 1978).
The plaintiff also seeks declaratory relief in some unspecified form. Whether declaratory relief should be granted in an appropriate case is committed to the court's sound discretion. Bituminous Coal Operators' Ass'n., Inc. v. International Union, UMW, 585 F.2d 586, 595-96 (3d Cir. 1978); American Home Assurance Co. v. Liberty Mutual Insurance Co., 475 F. Supp. 1169 (E.D. Pa. 1979). In determining the appropriateness of declaratory relief, I must consider whether it will resolve an uncertainty giving rise to a controversy, the convenience of the parties, the public interest and the availability of other remedies. Bituminous Coal, 585 F.2d at 596-97. Here, the prayer for declaratory relief is no more than a predicate implicit to plaintiff's request for damages. There is no uncertainty of obligation between plaintiff and defendants that mandates a declaration of their legal relations. There is simply no basis for declaratory relief, even assuming that such relief is not barred by the doctrine of judicial immunity. Cf. Hansen v. Ahlgrimm, 520 F.2d 768, 770 (7th Cir. 1975) (declaratory relief denied where it was predicate to damage relief and damage claims were barred by judicial immunity).
B. Prosecutorial Immunity
Sokolove and Kane have in common claims against them concerning actions taken in their capacity as government prosecutors. These defendants properly assert that prosecutors enjoy absolute immunity from damage suits growing out of their official duties. Imbler v. Pachtman, 424 U.S. 409, 427, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976); Turack v. Guido, 464 F.2d 535, 536 (3d Cir. 1972). However, like judicial immunity, prosecutorial immunity is not absolute. Bauers v. Heisel, 361 F.2d 581, 590 (3d Cir. 1966), cert. denied, 386 U.S. 1021, 18 L. Ed. 2d 457, 87 S. Ct. 1367 (1967). Prosecutors enjoy immunity only for activities intimately associated with the judicial phase of the criminal process. Ross v. Meagan, 638 F.2d 646, 648 (3d Cir. 1981) (citing Imbler v. Pachtman, 424 U.S. at 430). In determining whether a prosecutor enjoys absolute immunity from civil liability, federal courts must apply a functional analysis to determine whether the prosecutor's acts fall within the bounds of "judicial" as opposed to "investigative or administrative duties." Mancini v. Lester, 630 F.2d 990, 993-94 (3d Cir. 1980); Forsyth v. Kleindienst, 599 F.2d 1203, 1212-16 (3d Cir. 1979), cert. denied, 453 U.S. 913, 101 S. Ct. 3147, 69 L. Ed. 2d 997 (1981). Thus, the question presented here is whether the defendant's activities are "judicial duties." See Henderson v. Fisher, 631 F.2d 1115, 1120 (3d Cir. 1980).
Defendant Sokolove's filing of a Rule to Show Cause against the Commission to enjoin further investigative hearings and his alleged instruction to government witnesses not to testify at these hearings were tasks performed in his role as an advocate, and cannot be construed as investigative or administrative duties, see Imbler, 424 U.S. at 430 n.32. Consequently, he is immune from suit, based upon these activities.
As to Kane, the decision to approve or disapprove a private criminal complaint is squarely within the broader function of "initiating a prosecution" as defined by Imbler. Just as the prosecutor who initiates a criminal case requires protection from the defendant who transforms his resentment into a lawsuit, Imbler, 424 U.S. at 425, so too the prosecutor who decides not to initiate a case requires protection from the complainant who may be blind to the factors which militate against initiating prosecution. See Raitport, 451 F. Supp. at 528 (citing Turack, 464 F.2d at 536) (district attorney immune from damage suit arising out of refusal to institute criminal proceedings against a third party). Thus, defendant Kane is immune from suit based upon his failure to prosecute.
C. Witness Immunity
Plaintiff has alleged that defendant Kostmayer provided false and/or misleading information which aided in his conviction on criminal charges. Although defendant Kostmayer has not raised the defense of immunity, it is clear that Kostmayer is absolutely immune from civil liability in § 1983 actions for testimony proffered in the course of plaintiff's criminal trial.
At common law, a witness was absolutely protected from any suit arising from his testimony in a judicial proceeding. Charles v. Wade, 665 F.2d 661, 666 (5th Cir. 1982), appeal filed. A majority of federal courts, including the Third Circuit, have held that the policies that undergird the common law rule of absolute witness immunity apply with equal force in a § 1983 action and its counterpart, a Bivens -type claim.
Witness immunity is firmly grounded in public policy:
The function of witnesses is fundamental to the administration of justice. The court's judgment is based on their testimony and they are given every encouragement to make a full disclosure of all pertinent information within their knowledge.
Brawer v. Horowitz, 535 F.2d 830, 837 (3d Cir. 1976), (quoting 1 F. Harper and F. James, the Law of Torts, § 5.22 at 424). Accord, Butz v. Economou, 438 U.S. 478, 512, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978).
Procedural safeguards built into the judicial process are sufficient to control unconstitutional conduct of witnesses.
Accordingly, Kostmayer is absolutely immune from civil liability and the complaint must be dismissed as to him.
The same policies that favor granting immunity to judges, prosecutors, and witnesses, in § 1983 actions, require its extension to the other sections of the civil rights acts as well. See Ross v. Meagan, 638 F.2d 646, 649 n.2 (3d Cir. 1980). Accordingly, the granting of immunity as to plaintiffs' § 1983 claims pertain, as well, to plaintiffs' claims under §§ 1981, 1985(1)-(3), and 1986, and these claims against defendants Biehn, Biester, Garb, Sokolove, Kane, and Kostmayer are also dismissed.
II. LACK OF SPECIFICITY
A. Defendant Bucks County
Plaintiffs allege that Bucks County violated their civil rights by negligently employing and supervising defendants Biehn, Biester, Sokolove, Kane, and Batezel in their respective capacities as state and/or judicial officers. No independent cause of action is alleged against Bucks County. The only theory of federal liability with respect to Bucks County, then, is under the doctrine of respondeat superior.
Although municipalities may be sued directly under section 1983 where the alleged unconstitutional action implements a policy or governmental custom which is so well settled as to have the force of law, Monell v. Department of Social Services, 436 U.S. 658, 690, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978), an action arising under this section must be dismissed where plaintiff fails to establish in his pleadings that the unconstitutional actions allegedly taken by the county's representatives were the product of official policy or custom. Hassell v. City of Philadelphia, 507 F. Supp. 814, 816 (E.D. Pa. 1981). See, e.g., Monell, 436 U.S. at 690 (the touchstone of a section 1983 action against a municipality is an allegation that official policy is responsible for a deprivation of rights); Pisatelli v. Metzger, No. 81-1653 (E.D. Pa. filed March 29, 1982 (McGlynn, J.)); Black v. Stephens, 662 F.2d 181, 189 (3d Cir. 1981), cert. denied, 455 U.S. 1008, 102 S. Ct. 1646, 71 L. Ed. 2d 876 (1982). Plaintiff must identify such policy or conduct specifically. Ross, 638 F.2d at 650; Long v. Kistler, 524 F. Supp. 225, 227 (E.D. Pa. 1981). Where the broad and conclusory nature of plaintiff's allegations leave the court unable to ascertain the precise nature of the policy or custom which allegedly resulted in the deprivation of plaintiff's rights, the complaint must be dismissed. Avacino v. Diass, No. 81-3338 (E.D. Pa. filed March 10, 1982 (Pollak, J.)).
Here, the complaint fails to allege facts sufficient to establish that an official policy or custom of Bucks County resulted in defendant's actions. Since the Third Circuit has held that failure to permit amendment of a complaint dismissed for want of specific allegations constitutes an abuse of discretion, Ross, 638 F.2d at 650, plaintiff's claim against Bucks County will be dismissed without prejudice with leave to amend. However, plaintiff's attention is directed to Fed. R. Civ. P. 11, which requires a good faith belief that there is good ground to support the allegations of a complaint.
B. Defendants Lattanzi and Batezel
Defendants Lattanzi and Batezel, whom plaintiff alleges provided false and/or misleading information which led to his criminal prosecution and conviction, argue that, as to them, the complaint should be dismissed for lack of specificity. In determining whether a complaint states a claim upon which relief can be granted, all well-pleaded factual allegations of the complaint, as opposed to legal conclusions that are alleged, must be taken as true. Miree v. DeKalb, 433 U.S. 25, 27, 97 S. Ct. 2490, 53 L. Ed. 2d 557 n.2 (1977); Kugler v. Helfant, 421 U.S. 117, 125, 44 L. Ed. 2d 15, 95 S. Ct. 1524 n.5 (1975). A complaint should not be dismissed "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).
Nevertheless, the Third Circuit has required complaints arising under federal civil rights statutes to be stated with greater particularity than is generally required under the liberal federal pleading rules in order to prevent frivolous civil rights suits. Avacino v. Diass, No. 81-3338 (E.D. Pa. filed March 10, 1982 (Pollak, J.)). (Citing Kauffman v. Moss, 420 F.2d 1270, 1275 (3d Cir.), cert. denied, 400 U.S. 846, 27 L. Ed. 2d 84, 91 S. Ct. 93 (1970). Vague and conclusory allegations in a civil rights complaint will not survive a motion to dismiss. Hall v. Pennsylvania State Police, 570 F.2d 86, 89 (3d Cir. 1978).
Applying these standards to the proceeding sub judice, plaintiff's complaint as to defendants Lattanzi and Batezel must be dismissed for lack of specificity.
Plaintiff's complaint against Batezel alleges only that sometime during the month of April, 1980, he made a threat upon plaintiff's life as part of a conspiracy to deprive plaintiff of his constitutional rights. Plaintiff has not identified the constitutional right which is violated by the alleged threat. Further, although a conspiracy may be a basis for a section 1983 action, Shirey v. Bensalem Township, 501 F. Supp. at 1141, complaints containing only conclusory, vague, or general allegations of a conspiracy to deprive a person of constitutional rights will be dismissed. Id. (citations omitted). There is no basis for concluding that there was any common plan of which Batezel was a part; in fact, there are no facts alleged to connect his activities with those of any of the other defendants. The complaint in the instant case appears analogous to that analyzed in Carr v. Sharp, 454 F.2d 271 (3d Cir. 1971) where the court found an allegation of a general conspiracy to inflict discrimination was unsupported by any substantial facts. Id. at 273 n.6.
Requisite specificity is also lacking as to defendant Lattanzi. At a minimum, a civil rights complaint must identify not only the defendants who acted, but also the time, place, and nature of their actions as well as the constitutionally protected right which has been violated, with sufficient specificity to give notice of the claims asserted. Hall v. Pennsylvania State Police, 570 F.2d at 89. See Rotolo v. Borough of Charleroi, 532 F.2d 920, 922-23 (3d Cir. 1976). The content of the alleged false and/or misleading information provided by Lattanzi is not stated or even suggested in the complaint. Plaintiff does not state where the transaction took place, the time of its occurrence, nor any basis upon which this court may conclude that there is a link between Lattanzi's activities and deprivation of a constitutional right. Further, the allegation that Lattanzi's actions are part of a broader conspiracy is also unsupported by any factual allegations which indicate that he entered into an agreement, either express or tacit, with his co-defendants or that these activities relate to any common plan or design. As a whole, the allegations against Lattanzi do not state any facts upon which this court can weigh the substantiality of the claim. Accordingly, the motions to dismiss the complaint against Batezel and Lattanzi shall be granted.
However, to accomplish the dual objectives of weeding out frivolous claims and keeping the federal courts open to legitimate civil rights claims, see Rotolo, 532 F.2d at 923, plaintiff shall be granted leave to file an amended complaint against defendants Batezel and Lattanzi.
An appropriate order follows.
AND NOW, this 27th day of September, 1982, it is hereby ORDERED that:
For the reasons set forth in the accompanying memorandum opinion, plaintiffs' complaint is DISMISSED with prejudice as to the following defendants: The Honorable Kenneth G. Biehn, The Honorable Edward G. Biester, Jr., the Honorable Isaac S. Garb, Leonard B. Sokolove, Esquire and Michael J. Kane, Esquire and Peter H. Kostmayer. As to the following defendants, plaintiffs' complaint is DISMISSED without prejudice with leave to amend within twenty (20) days of the date of this order: Bucks County, Vincent L. Lattanzi and Richard F. Batezel.