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February 11, 1983


The opinion of the court was delivered by: WEBER


 This case arises out of a situation common in most of the counties in Pennsylvania and elsewhere as we note from reported federal cases, where the District Attorney is not a full time officer but is allowed to engage in the private practice of law. When the attorney mingles his private activities and his public office, he gives rise to a claim that he acted under "color of law" and his actions are brought within the field of fire of the federal civil rights law.

 The plaintiff has filed an action against the defendants seeking damages for alleged violations of his civil rights pursuant to 42 U.S.C. Section 1983 and 42 U.S.C. Section 1985. The plaintiff also seeks relief under the First, Fourth, Fifth, Sixth, Ninth, Tenth and Fourteenth Amendments of the United States Constitution. This matter is before the court on defendants' motion to dismiss plaintiff's claims.

 I. Factual Background.

 The facts precipitating this lawsuit indicate that the plaintiff had entered into certain contracts with corporations owned substantially by the Estate of E. Kent Kane. The agreements were prepared for the corporations by the defendant Attorney Jay Paul Kahle. In the course of the dealings between the parties, the plaintiff was given corporate documents to evaluate the pending transaction. Some time later Attorney Kahle filed a private criminal complaint naming the plaintiff in charges of theft by unlawful taking or disposition. A nolle prosequi was later entered by District Attorney Kahle and the proceedings were terminated on the satisfied condition that plaintiff return the documents. It is the institution of the criminal proceedings against the plaintiff which form the basis of the present lawsuit.

 Separate Motions to Dismiss have been received from the defendant Kahle and the defendant co-administrators of the Estate of E. Kent Kane. The motions and responses have been briefed by the parties and the matter is ripe for the court's consideration.

 It is incumbent upon the court, when considering a motion to dismiss, to accept as true the well-plead allegations of plaintiff's complaint. Scheuer v. Rhodes, 416 U.S. 232, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Lasher v. Shafer, 460 F.2d 343 (3d Cir. 1972). Accordingly, we follow the accepted rule that a complaint should not be dismissed unless it appears that plaintiff can prove no set of facts that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957).

 The defendant Kahle challenges the complaint on three grounds. First, he contends that the filing of a private criminal complaint does not constitute an action taken "under color of state law" necessary to support a claim under Section 1983. Second, Kahle asserts absolute immunity as a McKean County District Attorney for any "active role" he may have played in the prosecution of the criminal complaint after the filing of charges. And third, Kahle maintains that the plaintiff has failed to state a cause of action under 42 U.S.C. § 1985(3).

 The defendant co-administrators of the Estate of E. Kent Kane seek dismissal of the complaint also on three grounds. First, they contend that clients of an attorney do not act "under color of state law" within the meaning of Section 1983 when their attorney acting in his private capacity files a private criminal complaint. Second, defendants assert that the plaintiff fails to allege the deprivation of any federally protected right. And third, they contend that plaintiff's complaint is fatally defective in its failure to set forth a cause of action for the state law torts underlying the federal civil rights claim.

 Where appropriate the court will consider jointly the challenges to the complaint raised by both motions to dismiss.

 II. Defendant Kahle.

 A. The 42 U.S.C. § 1983 Cause of Action.

 Kahle first challenges the complaint, as do the other defendants, by asserting that the filing of a private criminal complaint does not constitute action taken "under color of state law." The prerequisites of a claim brought pursuant to 42 U.S.C. § 1983 require that the plaintiff demonstrate a deprivation of constitutional rights by the defendants while they were acting "under color of state law." See Adickes v. S.H. Kress & Co., 398 U.S. 144, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970).

 Defendants have framed their argument in such a way as to have this court consider the act of filing a "private" criminal complaint independent of plaintiff's remaining allegations. On the contrary, for the defendants to succeed with this challenge to the complaint they must demonstrate not only that the issuance of process was not under "color of state law" but also that the use of process once initiated could under no set of facts arising from the plaintiff's allegations be shown to constitute "color of state law" action. This the defendants cannot do. As noted, paragraph 11 of the complaint contains the allegation that the defendant Kahle, as McKean County, District Attorney, took an active role in the prosecution. A reading of the complaint makes it clear that the totality of the defendant's acts are alleged to be a pretext to leverage certain demands upon the plaintiff by the use of state authority. It is apparent that this objective was facilitated by Mr. Kahle's position as a district attorney. We are reminded to take as true the well-plead allegations of plaintiff's complaint. Accordingly, the "under color of state law" requirements of 42 U.S.C. § 1983 are satisfied if plaintiff's complaint avers, as we find that it does, constitutional violations occurring as a result of the defendant's actions taken while he was cloaked with the authority of state law. Screws v. United States, 325 U.S. 91, 89 L. Ed. 1495, 65 S. Ct. 1031 (1945); Brooks v. Fitch, 534 F. Supp. 129 (D.N.J. 1981) (position as prosecutor enabled lawyer to initiate criminal proceedings and abuse process).

 There can be little dispute that when law enforcement officers and prosecutors act in their official capacity, or otherwise take an "active role" in a criminal prosecution, they are acting under "color of state law." Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). The use of power possessed by virtue of state law is action taken under color of state law. Monroe, 365 U.S. at 183-186; Screws, supra, 325 U.S. at 108-113; United States v. Classic, 313 U.S. 299, 85 L. Ed. 1368, 61 S. Ct. 1031 (1941). We find that the plaintiff has provided sufficient averments to satisfy the "under color of state law" requirement of 42 U.S.C. § 1983 and will, therefore, reject the defendants' first challenge.

 B. Absolute Immunity.

 In his second challenge to the complaint, the defendant Kahle makes a claim of absolute immunity as McKean County District Attorney for any role he may have ...

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