states that Ruch informed Nasuti that the U.S. Attorney for the Middle District of Pennsylvania intended to obtain indictments against the co-defendants for similar drug related offenses committed in that district. This information led Nasuti to engage in plea discussions with Mr. Ruch. As a result of Nasuti's discussions with Ruch on September 13, a plea agreement was reached, which did not preclude the government from calling his client as a witness before the grand jury in the Middle District of Pennsylvania. Nasuti had communicated the deal he had reached for his client with the other counsel. The other counsel believed that they would be able to obtain the same deal for their clients. Drum's version does controvert Nasuti's.
According to Drum, his attorney, along with Pearce's attorney, himself, and Pearce, discussed the possibility of a plea from September 14 to September 16, and the possibility of being called as a grand jury witnesses; at that point, Drum and Pearce agreed to a plea that included the understanding that they would not be called as witnesses in the Middle District. However, plaintiff sets forth no facts that his attorney could or did make a deal on these terms to which his client agreed.
Plaintiff claims that any misunderstanding of the plea agreement was caused by Nasuti's deliberate course of action. However, Drum fails to establish facts from which such a deliberate course of action could be inferred. While Drum refuses to admit that he has no proof of Nasuti's impropriety, he supports this denial only by pointing out that Nasuti was involved in the plea discussions. Drum has failed to provide any circumstantial evidence from which Nasuti's involvement in a conspiracy to mislead Drum could be inferred.
In response to Simone's summary judgment motion, Drum asserts that "on September 16, 1983, Mr. Simone is on the record telling plaintiff that he would not have to testify in the Middle District of Pennsylvania." However, an examination of Pearce's change of plea hearing reveals no such statement on the record -- only that Pearce, and, according to Drum, by implication, Drum, would not have to testify in the Eastern District. Change of Plea Transcript at 7. United States v. Pearce, Crim. No. 82-173-2 (Sept. 16, 1982). Simone's affidavit likewise denies that he ever told Drum prior to his pleading guilty that he would not be required to testify in the Middle District. Drum has not set forth any facts to support his allegations to the contrary, nor to counter Simone's statement in his affidavit that Simone did not communicate with Ruch about Drum regarding a provision in the plea agreement that Drum would not be required to testify in the Middle District. The absence of a genuine issue of fact concerning the existence of a conspiracy to mislead Drum as to the terms of his plea agreement is therefore a proper basis for granting summary judgment as to all defendants.
V. STATUTE OF LIMITATIONS
In civil rights actions under 42 U.S.C. § 1983, federal courts must ascertain the underlying cause of action under state law and apply the limitation period which the state would apply if the action had been brought in state court. Jennings v. Shuman, 567 F.2d 1213, 1216 (3d Cir. 1977). A Bivens type suit is a federal counterpart of 42 U.S.C. § 1983. Paton v. La Prade, 524 F.2d 862, 871 (3d Cir. 1975). Since Bivens type actions and § 1983 actions rest on similar policies, courts look to the statute of limitations applied in a § 1983 case, to determine the appropriate statute in a Bivens type case. See McClaim v. Barry, 225 U.S. App. D.C. 124, 697 F.2d 366, 375 n.8 (D.C. Cir. 1983); see also Doe v. District of Columbia, 225 U.S. App. D.C. 225, 697 F.2d 1115, 1123 (D.C. Cir. 1983) (bodies of law relating to Bivens and § 1983 litigation have been associated in many respects). The proper characterization of actions under 42 U.S.C. § 1983 is a question of federal law. Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). The appropriate statute of limitations in such suits is the state statute for personal injury actions. Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). Pennsylvania's two year statute of limitations for personal injuries, 42 Pa.C.S. § 5524, is applicable to § 1983 claims. Smith v. Pittsburgh, 764 F.2d 188, 194 (3d Cir.), cert. denied, 474 U.S. 950, 88 L. Ed. 2d 297, 106 S. Ct. 349 (1985). Neither the plaintiff nor the defendants dispute this.
They do, however, dispute the appropriate accrual date for this two year limit. Federal law determines the date of accrual of a section 1983 cause of action. Deary v. Three Un-Named Police Officers, 746 F.2d 185, 197 n.16 (3d Cir. 1984). A plaintiff's civil rights cause of action accrues when the plaintiff "knew or had reason to know of the injury that constitutes the basis of this action." Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982) (per curiam); see also Deary, supra, at 197, n.16. (claim of malicious prosecution accrues on date that criminal proceedings were resolved in plaintiff's favor). The question, under Sandutch, is when could Drum by the exercise of due diligence, have had the reason to know of the injury that is the basis of his cause of action. Deary, supra, at 194 n.9. See also Sandutch at 254 (record establishes as a matter of law that Sandutch had reason to know of the alleged conspiracy to secure false testimony when he knew of Mastrota's recantation of his incriminating evidence).
Drum claims that the accrual date was when the Court of Appeals affirmed his criminal conviction on May 18, 1984. The federal defendants claim it was the date of the alleged perjury, in June of 1983; and private defendants Reif and Nasuti likewise claim it accrued when the criminal contempt proceeding was held, in June of 1983. Plaintiff filed his complaint against the private attorneys on August 1, 1985; he filed his amended complaint, which included the federal defendants, on January 1, 1986.
While in a conspiracy, the statute of limitations begins to run from each overt act causing damages, Ammlung v. City of Chester, 494 F.2d 811, 814-5 (3d Cir. 1974), in making this assessment courts distinguish between continuing unlawful acts, and continued ill effects from an original violation. In Sandutch, the Court found that the alleged continuing ill effects from preconviction acts did not constitute a continuing tort for purposes of the accrual date. Sandutch, supra, at 254. Thus, the date of accrual began when the plaintiff had reason to know of the alleged false testimony in his case. The Court held that "a 'continuing violation is occasioned by continual unlawful acts, not continued ill effects from an original violation.'" Sandutch, supra, at 254 quoting Ward v. Caulk, 650 F.2d 1144, 1147 (9th Cir. 1981).
Based on this analysis, I must reject plaintiff's argument that his claim was not ripe until the Court of Appeals denied his appeal from his criminal contempt conviction in the Middle District, on May 18, 1984, when he alleges he ultimately sustained his damage, since he was then forced to serve an additional two years. As in Sandutch, the alleged continuing ill effects from preconviction acts do not constitute a continuing tort. Id. See also Gaito v. Strauss, 249 F. Supp. 923, 932 (W.D. Pa.), aff'd., 368 F.2d 787 (3d Cir. 1966) (date of accrual is achievement of goal of conspiracy, which was last overt act effectuating plaintiff's imprisonment, thus not later than plaintiff's sentencing; allegedly continuous and successful efforts by defendants since then can be regarded as elements of continuing damage accruing from culmination of alleged conspiracy in sentencing). Thus, the last act which Drum complains of causing his injury would have been during his criminal contempt proceedings, in June, 1983, when he "knew" from Reif's testimony of the conspiracy he claims. It was then that the statute of limitations accrued.
Nor can plaintiff argue that the reason he failed to file his § 1983 action was that the same issues were pending in another proceeding. Bailey v. Ness, 733 F.2d 279, 283 (3d Cir. 1984). Rather, in such a situation the Court would stay the civil rights proceeding until the criminal proceedings had run their course. Id. Thus, the statute of limitations also bars plaintiff's claims.
VI. PROSECUTORIAL IMMUNITY
Federal defendants set forth the additional ground for summary judgment that they are absolutely immune from liability for their testimony in a judicial proceeding. The Supreme Court has said that, for purposes of immunity law, no distinction between suits brought against state officials under § 1983 and those brought under the Constitution against federal officials should be drawn. Butz v. Economou, 438 U.S. 478, 504, 57 L. Ed. 2d 895, 98 S. Ct. 2894 (1978). See also Paton v. LaPrade, 524 F.2d 862 (3d Cir. 1975).
Prosecutors enjoy absolute immunity from damage suits under § 1983 for activities "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976). In Brawer v. Horowitz, 535 F.2d 830, 834 (3d Cir. 1976) the court stated that the immunity accorded to state prosecutors in Imbler should extend to federal prosecutors. Prosecutorial immunity, however, does not apply to actions taken by prosecutors "clearly outside of their jurisdiction." Bauers v. Heisel, 361 F.2d 581, 590 (3d Cir.) (en banc), cert. denied, 386 U.S. 1021, 18 L. Ed. 2d 457, 87 S. Ct. 1367 (1967). Within these limits, a prosecutor's immunity extends to actions taken in the initiation of a prosecution and the presentation of the prosecutor's case. Imbler, supra, 424 U.S. at 431; Ross v. Meagan, 638 F.2d 646, 648 (3d Cir. 1981) (per curiam). In Imbler, this immunity was extended to a prosecutor in a suit alleging that the prosecutor knowingly used perjured testimony. The public policy considerations supporting common law witness immunity apply equally to claims brought against witnesses under Bivens. Brawer v. Horowitz, 535 F.2d 830, 837 (3d Cir. 1976). The Imbler Court noted that potential liability would divert the prosecutor's attention and energy "from the pressing duty of enforcing criminal law." Imbler, supra, 424 U.S. at 425.
The Court has held that a prosecutor is entitled to absolute immunity while performing his official duties, "as an officer of the court, even if, in the performance of those duties, he is motivated by a corrupt or illegal intention." Jennings v. Shuman, 567 F.2d 1213, 1221-22 (3d Cir. 1977). Thus, the law establishes that defendants are absolutely immune from liability for their testimony in his criminal contempt proceeding. The only way that Drum can recover against the federal defendants, is if he can show that they acted outside the scope of their official duties. Drum fails to set forth any facts from which a jury could infer that the federal defendants acted outside the scope of their official duties.
In his response to defendants' motions, Drum simply asserts that the element of perjury is but one aspect of the conspiracy, that the federal defendants either misled him into believing that he would not be required to testify in the Middle District or that the plea bargain did exist, and that the federal defendants conspired to prevent the plaintiff from receiving the benefits of said agreement. Given the absence of any factual showing that the federal defendants acted outside the scope of their official duties, the federal defendants' are protected by their immunity.
The defendants' motions for summary judgment are accordingly granted.
AND NOW, this 25th day of November, 1986, after a hearing, defendant's Motions For Summary Judgment are Granted and judgment is hereby entered in favor of defendants and against plaintiff.
MARVIN KATZ, J.