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ROSE v. BARTLE

July 22, 1988

JOSEPH ROSE
v.
PAUL BARTLE, et al.



The opinion of the court was delivered by: GILES

 GILES, UNITED STATES DISTRICT JUDGE.

 Plaintiff claims that criminal charges relating to "macing" instituted against him by the District Attorney of Montgomery County in November, 1983, following a recommendation of an investigating grand jury, violated his federally protected constitutional rights, state common law rights and statutory rights cognizable under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1961, et seq. (RICO). Joseph Rose, formerly Chief Deputy Sheriff of the Montgomery County Sheriff's Department, has sued the former District Attorney, Joseph A. Smyth, Jr., allegedly for causing false criminal charges to be lodged against him and attempting to cause him to give false testimony before the grand jury; Bert Goodman, the Assistant District Attorney who assisted Smyth in the grand jury investigation; Oscar Vance, Chief County Detective, who also assisted Smyth in the grand jury investigation and who actually signed the document which preferred criminal charges against Rose; Paul Bartle, Chairman of the County Commission; and Robert Asher, Chairman of the Montgomery County Republican Party. Bartle and Asher are alleged to have masterminded the instigation of criminal charges against plaintiff, his boss, former Sheriff Frederick Hill, and several other top officials in the Sheriff's department, for the purpose of forcing Hill to resign his office or to fail in his attempt for reelection. Montgomery County and the County Republican Party are also sued because allegedly Montgomery County is controlled by the County Republican Party and, allegedly, Asher and Bartle control the County Republican Party.

 Plaintiff alleges that the criminal charges against him resulted from a corrupt County Republican Party conspiracy and scheme to oust Hill from the Sheriff's Department and to assert control thereof by placing persons whom they controlled in high influential ranks within the department.

 Jurisdiction is asserted under 42 U.S.C. § 1983 and 18 U.S.C. § 1964(c). Plaintiff claims that he was the victim of false arrest, abuse of process and malicious prosecution and his federal constitutional rights were violated thereby.

 Plaintiff filed his complaint on October 27, 1986. During oral argument on defendants' motions to dismiss and to stay discovery, this court gave him leave to file an amended complaint in an attempt to bolster the pleadings, which were under challenge by defendants as insufficient. The amended complaint was filed on September 21, 1987. Defendants' motions to dismiss were renewed. Defendant Smyth answered the amended complaint attaching a copy of the 1982 Montgomery County Investigating Grand Jury's Presentment to the Honorable Louis D. Stefan, Supervising Judge, Montgomery County Court of Common Pleas. Smyth also attached a copy of Judge Stefan's Findings and Order. As a result of these attachments, this court notified the parties on January 26, 1988 that the motions to dismiss would be considered as motions for summary judgment and ordered that submissions by both sides be completed by February 26, 1988. *fn1"

 Plaintiff alleges in Count I of his amended complaint that his civil rights were violated by defendants, acting under color of law. Plaintiff's claim against defendants Smyth and Goodman are dismissed because they are entitled to prosecutorial immunity. The claim is dismissed as to the remaining defendants because the statute of limitations has run. In addition, plaintiff has failed to show causation.

 A. Prosecutorial Immunity

 District Attorney Smyth and Assistant District Attorney Goodman are entitled to prosecutorial immunity for the activities alleged in plaintiff's amended complaint. Specifically, Rose claims that:

 1. Smyth instituted grand jury proceedings without investigation and knowing Rose to be innocent of any criminal wrongdoing. Amended Complaint, paras. 39-40;

 2. Smyth and Goodman influenced and directed the grand jury to present false findings. Amended Complaint, para. 41(a);

 3. Smyth and Goodman solicited and prepared perjured testimony by witnesses. Amended Complaint, para. 41(a);

 4. Smyth and Goodman reported what happened in the grand jury proceedings to other defendants in violation of state law. Amended Complaint, para. 41(b);

 5. Smyth and Goodman intentionally failed to call witnesses with knowledge of the events who they believed would provide exculpatory evidence for Rose. Amended Complaint para. 41(c);

 6. Smyth and Goodman attempted to get Rose to perjure himself in the grand jury proceedings. Amended Complaint, paras. 42(a)-42(d);

 7. Smyth and Goodman acted solely pursuant to the instructions of defendants Robert Asher, Chairman of the Republican Party, and Paul Bartle, Chairman of the County Commission, "under the enticement of defendants' offers to benefit [their] political [careers] and the compulsion of defendants' threats to ruin [their] political [careers]." Amended Complaint, paras. 42(e), 41(g).

 Smyth and Goodman move for dismissal, stating that even if the complaint's allegations are taken as true, Rose has failed to state a claim on which relief can be granted. Smyth and Goodman argue that the federal civil rights violations alleged by Rose involve the exercise of Smyth's and Goodman's discretion as part of the judicial process and that their alleged actions are thus subject to absolute immunity from a civil suit for damages.

 Smyth cites the case of Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976), which held that prosecutors are entitled to absolute immunity for "activities . . . intimately associated with the judicial phase of the criminal process." 424 U.S. at 430. The Court in Imbler held that, despite a prosecutor's knowing use of perjured testimony, the prosecutor's actions in initiating the prosecution, and his actions in presenting the State's case, he was immune from a civil suit for damages under § 1983. The Court rationalized absolute immunity for prosecutors on policy grounds. It noted that "if the prosecutor could be made to answer in court each time [a criminal defendant] charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law." 424 U.S. at 431. Imbler left open the question of whether a prosecutor enjoys similar immunity in his role as an administrator or investigative officer. Id. at 430-431.

 Many courts have held that only a qualified, good faith immunity applies to a prosecutor acting in an investigative or administrative capacity. See Ross v. Meagan, 638 F.2d 646 (3d Cir. 1981); Harlow v. Fitzgerald, 457 U.S. 800, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). The third circuit held in Mancini v. Lester, 630 F.2d 990, 992 (3d Cir. 1980), that "the lower federal courts must employ a functional analysis to determine whether Imbler's absolute immunity protects a prosecutor."

 The court in Mancini followed its decision in Forsyth v. Kleindienst, 599 F.2d 1203, 1215 (3d Cir. 1979), which had held that "to the extent that the securing of information is necessary to a prosecutor's decision to initiate a criminal prosecution, it is encompassed within the protected, quasi-judicial immunity afforded to the decision itself." 599 F.2d at 1215. Investigative acts which cannot be said to be a part of the judicial process are subject only to good faith immunity.

 An examination of Smyth's and Goodman's alleged acts is required to determine whether they are (1) "intimately associated with the judicial phase of the criminal process," Imbler, 424 U.S. at 430, or (2) investigative steps taken in an attempt to secure information necessary to determine whether to initiate a prosecution. Forsyth, 599 F.2d at 1215-1216.

 1. Rose alleges that Smyth instituted grand jury proceedings without investigation and knowing Rose to be innocent of any criminal wrongdoing. Amended Complaint paras. 39-40. The decision to institute grand jury proceedings and the institution of proceedings are elements of prosecutorial decisionmaking which the doctrine of absolute immunity is designed to protect. Intent and motive play no role in immunity analysis. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986). Therefore, these allegations are not actionable against Smyth.

 2. Rose alleges that Smyth and Goodman influenced and directed the grand jury to present false findings. Amended Complaint para. 41(a). The alleged action here, the presentation of a case to a grand jury, is within the prosecutor's traditional function and subject to absolute immunity under Imbler. See Maglione v. Briggs, 748 F.2d 116 (2d Cir. 1984). See also, Siano v. Justices of Massachusetts, 698 F.2d 52, 57 (1st Cir. 1983), cert. denied, 464 U.S. 819, 78 L. Ed. 2d 91, 104 S. Ct. 80 (1983). This allegation fails to state a viable basis for liability.

 3. Rose claims that Smyth and Goodman solicited and prepared perjured testimony by witnesses for use in the grand jury proceedings. Amended Complaint para. 41(a). Rose claims that while a prosecutor may be immune for knowing use of perjured testimony, procurement of perjured testimony by coercion is at best an investigative act and a prosecutor is thus not entitled to absolute immunity. Smyth and Goodman argue that the allegations of subornation of perjury are intimately related to judicial proceedings and that absolute immunity is required in such a situation, consistent with the holding in Imbler. Smyth cites Tate v. Grose, 412 F. Supp. 487 (E.D. Pa. 1976), as support for his position. In Tate, then Chief Judge Joseph S. Lord, III, held as without merit a plaintiff's claim that immunity does not apply where a defendant prosecutor solicited perjured testimony. He stated:

 
There is no reason to depart from a rule of absolute prosecutorial immunity merely because the complaint alleges that defendants not only used perjured testimony against plaintiff but solicited that perjury testimony as well. To allow such an allegation to defeat the prosecutor's immunity would vitiate the Imbler holding. Anyone against whom perjured testimony was used could then force the prosecutor to court in a civil damage action simply by reframing the claim to allege that the perjured testimony was solicited.

 Tate, 412 F. Supp. at 488 (emphasis added). See also Morris v. Orman, et al., No. 87-5149, slip op. at 5 n.5 (E.D. Pa. June 22, 1988). I agree with Chief Judge Lord's views inasmuch as there is no policy reason for distinguishing between knowing use of perjury and subornation of perjury for the purposes of determining whether a prosecutor should be entitled to prosecutorial immunity in a § 1983 action. Thus, Smyth and Goodman are entitled to absolute immunity on the claim of solicitation of perjury.

 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).

 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 ...

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