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Bailey v. Ness

April 30, 1984

BAILEY, JO ELLEN, APPELLANT
v.
NESS, J. CHRISTIAN, INDIVIDUALLY GARBER, DANIEL, INDIVIDUALLY AND NORTHERN REGIONAL POLICE DEPT.



Appeal From The United States District Court For The Middle District Of Pennsylvania -- Scranton.

Aldisert, Higginbotham and Sloviter, Circuit Judges.

Author: Higginbotham

Opinion OF THE COURT

A. LEON HIGGINBOTHAM, JR., Circuit Judge.

This case involves an appeal by Jo Ellen Bailey ("Bailey") from the district court's summary judgment order dismissing her civil rights claims brought under 42 U.S.C. §§ 1983, 1985(3) against appellee, J. Christian Ness ("Ness"). The district court based its dismissal on a theory of collateral estoppel because it concluded that the issues on which Bailey seeks relief already have been decided in a state court criminal proceeding which resulted in Bailey's conviction. An appeal from that conviction is still pending in Pennsylvania state court. We believe that it was improper for the district court to dismiss her action; the district court should have stayed the present action until the appeals from the state court conviction had run their course or had run out of time in which to be brought. Therefore we will vacate the judgment of the district court and remand the case with instructions to stay further proceedings consistent with this opinion.

I.

On August 12, 1982, Bailey initiated this civil rights action claiming damages under 42 U.S.C. §§ 1983 and 1985(3). After allowing Bailey to amend her complaint and Ness to supplement the record, the district court granted Ness' motion for summary judgment and dismissed Bailey's action.

Bailey's civil rights action stems from alleged constitutional violations committed by Ness, the prosecuting attorney, in the course of a criminal prosecution against Bailey. That criminal case resulted in Bailey's third-degree murder conviction for beating to death her five-year-old daughter. The district court summarizes Ness' alleged improper behavior:

The conduct by defendant Ness of which plaintiff complains can be categorized as follows:

1) Ness' failure to complete or carry out an alleged plea bargain.

2) Ness' pre-trial statements to the media concerning plaintiff, by which she was prejudiced in her ability to secure character witnesses at her trial.

3) Ness' knowledge of and participation in an improper pre-trial contact with plaintiff by defendant Garber (a policeman) which prejudiced plaintiff.

Appendix at 19.

Bailey admits that these issues presented to the district court in this civil rights action "were raised in [her] criminal case in State court and resolved against her. . . ." Appellant's brief at 3-4. Her appeal from her ...


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