in violation of state law. Rose claims that grand jury leaks cannot be characterized as intimately related to the judicial process and thus fall outside the scope of absolute immunity. Rose argues that the third circuit "squarely held [in Helstoski v. Goldstein, 552 F.2d 564 (3d Cir. 1977)] that prosecutorial disclosures of false information [are] not part of a prosecutor's 'quasi-judicial' function." Plaintiff's Memorandum at 4.
Smyth counters that the holding of Helstoski is not applicable because it did not involve leaks in the course of a judicial proceeding. The information that the prosecutor disseminated to the public had not occurred before the grand jury. Indeed, Helstoski involved the leaking of false information. Here, there is no allegation that false information was leaked from the grand jury proceedings, but only that Smyth "regularly reported what transpired in the grand jury . . . ." Amended Complaint, para. 41(b).
In order to determine whether Smyth's and Goodman's conduct falls within the scope of absolute immunity, it is necessary to look to the purposes underlying the doctrine. The main purpose of absolute immunity is to avoid "harassment by unfounded litigation [which] would cause a deflection of the prosecutor's energies from his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust." Imbler, 424 U.S. at 423. Courts have held that a prosecutor is absolutely immune if his or her actions take place within the context of a judicial proceeding. For example, a prosecutor was held absolutely immune from allegations that he put a "spy" in the defense attorney's "camp." Jones v. Shankland, 800 F.2d 77, 80 (6th Cir. 1986), cert. denied, 481 U.S. 1048, 95 L. Ed. 2d 834, 107 S. Ct. 2177 (1987). Another prosecutor was held absolutely immune from civil claims that he conspired with a judge to arrive at a guilty verdict. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc). In this way, courts have fostered the higher public interest of ensuring independent and disinterested prosecutorial decisionmaking even where the genuinely wronged accused is left without civil redress against the prosecutor or is deprived of his liberty. Imbler, 424 U.S. at 424.
Helstoski v. Goldstein involved a prosecutor who deliberately leaked false information to the press concerning Mr. Helstoski in order to damage his political prospects. This falsification necessarily occurred outside of any judicial proceeding. The court held that such behavior, if proved, "would lie outside the rationale for absolute immunity set forth in Imbler." 552 F.2d at 566.
Here, the alleged leaks in the present case took place within the context of a judicial proceeding and was for the purpose of relaying information that was actually presented to the state grand jury. Therefore, the alleged act of leaking accurate information must be afforded absolute immunity because it falls within the rationale expressed in Imbler.
5. Rose alleges that Smyth and Goodman intentionally failed to bring forward exculpatory evidence. Amended Complaint, para. 41(c). The alleged failure to bring forward exculpatory evidence falls into the same category as the alleged use of and subornation of perjury. They are acts and omissions in the presentation of a case to a grand jury. The presentation of a case to a grand jury is within the prosecutor's traditional function and the prosecutor is entitled to absolute immunity. See Maglione v. Briggs, 748 F.2d 116 (2d Cir. 1984); Jones v. Shankland, 800 F.2d 77 (6th Cir. 1986), cert. denied, 481 U.S. 1048, 95 L. Ed. 2d 834, 107 S. Ct. 2177.
6. Rose claims that Smyth and Goodman attempted to cause him to perjure himself in the grand jury proceedings. Amended Complaint, paras. 42(a)-42(d). As discussed in number 3 above, solicitation of perjury is not distinguishable from the use of perjured testimony and is absolutely immune. See Tate v. Grose, 412 F. Supp. 487 (E.D. Pa. 1976).
7. Rose claims that Smyth and Goodman acted solely pursuant to the instructions of defendants Robert Asher and Paul Bartle "under the enticement of defendant's offers to benefit [their] political [careers] and the compulsion of defendants' threats to ruin [their] political [careers]." Amended Complaint, paras. 42(e), 41(g). In determining the scope of immunity, one must examine the conduct of the prosecutor, not the intent or the motivating circumstances. To "foreclose immunity upon allegations that judicial and prosecutorial decisions were conditioned upon a conspiracy or bribery serves to defeat [the] policies" upon which it is based. Ashelman v. Pope, 793 F.2d at 1078.
As discussed above, all of the allegations against Smyth and Goodman fall within the scope of judicial immunity. Therefore, Rose's § 1983 claim against both defendants must be dismissed.
B. § 1983 Statute of Limitations
Plaintiff Rose alleges that defendants deprived him of his first, fourth, fifth, sixth, and fourteenth amendment rights, in violation of 42 U.S.C. § 1983. Plaintiff states that the defendants, "acting under color of law, custom and usage and in their official capacities, deprived plaintiff of his rights, privileges and immunities," the right to "due process, equal protection, liberty, privacy, and an impartial criminal trial, and to be free from baseless arrest and prosecution and malicious use and abuse of process." Amended Complaint, paras. 53-54.
The applicable statute of limitations is derived from Wilson v. Garcia, 471 U.S. 261, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). There, the Supreme Court analyzed which statute of limitations was to be applied in a § 1983 action against a New Mexico police officer and the Chief of the State Police for unlawful arrest and assault. The Court concluded that a broad characterization of all § 1983 claims for statute of limitation purposes, rather than the application of differing statutes of limitation depending on the specific facts and legal theories of the case, better fits the remedial purposes of § 1983. The Court held that "the statute is fairly construed as a directive to select, in each state, the one most appropriate statute of limitations for all § 1983 claims." 471 U.S. at 275.
The Court affirmed the appellate court's decision to use the statute of limitations for the tort action for the recovery of damages for personal injuries. The Court cited the language of the Court of Appeals for the Fourth Circuit as persuasive:
In essence, § 1983 creates a cause of action where there has been injury, under color of state law, to the person or to the constitutional or federal statutory rights which emanate from or are guaranteed to the person. In the broad sense, every cause of action under § 1983 which is well-founded results from "personal injuries."
471 U.S. at 278 (citing Almond v. Kent, 459 F.2d 200, 204 (4th Cir. 1972)). Further, the Court found that Congress in 1871 would have characterized § 1983 as conferring a general remedy for injuries to personal rights. 471 U.S. at 278.
The third circuit has followed the Supreme Court's "bright-line approach to the problem of determining what statute of limitations should be applied in § 1983 actions." Knoll v. Springfield Township School District, 763 F.2d 584, 585 (3d Cir. 1985). Pennsylvania has a two-year limitations period for actions to recover damages for personal injuries. 42 Pa. Cons. Stat. Ann. § 5524 (Purdon Supp. 1984). Plaintiff does not dispute this. The parties' dispute centers around when the plaintiff's cause of action accrued for the purposes of the agreed limitations period.
Federal law determines the date of accrual of a § 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 [the] action." Sandutch v. Muroski, 684 F.2d 252, 254 (3d Cir. 1982). Through Sandutch, the question presented to this court is when could the plaintiff, by exercise of due diligence, have had reason to know of the injury that is the basis of his cause of action. Drum v. Nasuti, 648 F. Supp. 888, 903 (E.D. Pa. 1986) (cause of action for conspiracy accrued at time plaintiff knew from false testimony of conspiracy); see also Sandutch, 684 F.2d at 254 (record establishes that, as a matter of law, plaintiff had reason to know of alleged conspiracy to secure false testimony at time he knew of witness' recantation of incriminating evidence).
Plaintiff's claims of violations of his first, fourth, fifth, sixth, and fourteenth amendment rights rest, in turn, upon his claims of wrongful termination, false arrest, abuse of process, and malicious prosecution. Amended Complaint, paras. 38-46. Therefore, this court must determine when plaintiff knew or had reason to know of these injuries giving rise to the claims.
Plaintiff knew or had reason to know of his wrongful discharge on the date he was fired. This occurred in August of 1983. Amended Complaint, para. 41(b). The original complaint was filed October 27, 1986 over three years after the cause of action accrued. Thus, the claim is time barred.
Plaintiff knew or had reason to know of his injury arising from his alleged false arrest and defendant's alleged abuse of process when he was charged with criminal activity in March of 1984. Amended Complaint, para. 45. This claim is also time barred, as it was brought over two years after the cause of action accrued.
Plaintiff argues that his malicious prosecution claim constitutes a "§ 1983 claim for malicious prosecution" and, as such, did not accrue until the underlying criminal proceeding terminated in his favor. Plaintiff relies on a footnote in Deary v. Three Un-named Police Officers, 746 F.2d 185, 194 n.16 (3d Cir. 1984), which states that, in the event that a plaintiff has a claim for malicious prosecution, that claim would accrue when the criminal proceedings are resolved in favor of the plaintiff.
First, it should be noted that a cause of action under § 1983 is not made out simply by asserting that a common law tort was committed by a state official. Bell v. Brennan, 570 F. Supp. 1116, 1117 (E.D. Pa. 1983) (citing Cramer v. Crutchfield, 648 F.2d 943, 945 (4th Cir. 1981)). A plaintiff must allege deprivation of a federal right under color of law. Id. Therefore, plaintiff's assertion that his claim is a "§ 1983 claim for malicious prosecution" is not technically correct. His claim must be for the alleged violation of his constitutional rights, through the act of malicious prosecution. As such, this court is not bound by the elements of the state common law tort of malicious prosecution in determining when plaintiff's cause of action accrued. As stated above, federal law determines the time of accrual and occurs when the plaintiff knew or had reason to know of the injury which forms the basis of the claim. Sandutch, 684 F.2d at 254. The court in Edwards v. Sotomayor, 557 F. Supp. 209, 217 (D.P.R. 1983), clarified this point when it stated:
Accrual of an action based on a violation of federal constitutional rights is necessarily tied in to a determination of when the events leading to the federal claim culminated. Once the violation of a claimant's federal constitutional rights is apparent, the federal cause of action accrues and there is no need to adopt a state accrual standard immersed in state requirements for a tort of malicious prosecution. To hold that a civil rights action which may be analogized to a tort of malicious prosecution accrues only when criminal proceedings have concluded is to rule that the elements of the constitutional claim as well as its accrual depend on a particular state's configuration of the requirements of the tort of malicious prosecution.
557 F. Supp. at 217. (Emphasis added).
The use of the state law definition of accrual may also lead to the inconsistent application of federal law.
The footnote in Deary does not control this case. The court of appeals did not fully consider the factors discussed above, nor did it cite any authority for the statement or analyze the facts of the case in light of the federal standard of accrual of "reason to know." As the Supreme Court stated in the recent case of Felder v. Casey, "Congress, as we have previously noted, surely did not intend to assign to state courts and legislatures a conclusive role in the formative function of defining and characterizing the essential elements of a federal cause of action." Felder v. Casey, 487 U.S. 131, 108 S. Ct. 2302, 101 L. Ed. 2d 123, 1988 U.S. LEXIS 2867, slip op. No. 87-526 at 11 (S. Ct. June 22, 1988) (citing Wilson v. Garcia, 471 U.S. at 269) (federal construction of statute of limitations for § 1983 action preempts state court construction of the statute of limitations applied to § 1983 action tried in state court). The statement in the footnote is mere dicta and is not binding on this court.
Plaintiff argues that the third circuit's opinion in Weisman v. Insana, No. 86-1546, slip op. at p. 7-8 n.3 (3d Cir. April 6, 1987), confirms the court's earlier opinion in Deary. Plaintiff's argument is incorrect. The court of appeals in Weisman stated expressly in footnote 3:
[Plaintiff], however, argues that his claim in Count Three did not accrue until April 29, 1982, the date of his acquittal, and that the two-year statute of limitations did not bar his malicious prosecution claim. See Deary v. Three Un-named Police Officers, 746 F.2d 185, 194 (3d Cir. 1984).