This is an action under 42 U.S.C. sections 1983, 1985, and 1986, in which plaintiff alleges that various individuals
in the government of the City of Philadelphia conspired to deprive her of her constitutional rights. In particular, she alleges that defendants conspired to enact an unconstitutional bill to deprive her, retroactively, of a remedy in a pending case brought in state court against the city. Defendants have filed a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons that follow, this motion will be granted in part and denied in part.
This action arises out of events that occurred during the pendency of an action brought by plaintiff in the Common Pleas Court of Philadelphia County against the City of Philadelphia and individual police officers. In that action, plaintiff sought to recover damages for the wrongful death of her husband, Samuel J. Agresta, at the hands of the individual police officer defendants.
In reviewing a motion to dismiss under Rule 12(b)(6), the well-pleaded allegations of the complaint are to be taken as true and viewed in a light most favorable to the non-moving party, and all reasonable inferences that can be drawn from the facts are to be drawn in favor of the non-moving party. See Sturm v. Clark, 835 F.2d 1009, 1011 (3d Cir. 1987); Wisniewski v. Johns Manville Corp., 759 F.2d 271, 273 (3d Cir. 1985). In accordance with that standard, the following factual account is drawn from the complaint.
After two years of discovery and investigation of plaintiff's complaint in the Court of Common Pleas, then-Chief Deputy City Solicitor Ralph J. Teti recommended that the action should be settled. The City, however, rejected Teti's advice. Thereafter, Teti withdrew from the case and was replaced by defendant David A. Soltz, who at the time was Deputy City Solicitor. Together with defendant Charisse Lillie, who at the time was City Solicitor, Soltz engaged in a series of delaying maneuvers, including avoidance of discovery and disobedience of court orders, in order to avoid a decision on the merits.
In an effort to deprive plaintiff of a remedy, defendants Lillie and Soltz drafted legislation to repeal the City's waiver of governmental immunity in cases involving negligent or unlawful conduct of police officers acting within the scope of their duties. Introduced into the Philadelphia City Council by defendant Councilwoman Ann J. Land on September 19, 1990, as Bill 1057, the proposed legislation included a retroactivity provision that would apply to all litigation pending at the time of the bill's passage, as well as all litigation commenced thereafter. Defendants knew or should have known, according to plaintiff, that the retroactivity provision violated the state and federal constitutions under the Pennsylvania Supreme Court's decision in Gibson v. Commonwealth, 490 Pa. 156, 415 A.2d 80 (Pa. 1980).
Following the introduction of Bill 1057, Soltz, knowing his statements to be false, advised the Common Pleas Court and plaintiff's counsel that the bill, if passed, would not have retroactive effect. As the bill moved through the City Council, however, the trial on plaintiff's claims, set for October 22, 1990, was fast approaching. To forestall the trial, Soltz moved for a continuance, representing to the court that another member of the Common Pleas Court was about to enter a moratorium on all litigation against the City of Philadelphia. Soltz knew or had reason to know that this representation was false. Soltz further agreed to stipulate with plaintiff's counsel that Bill 1057 would not apply to plaintiff's case if plaintiff agreed to the continuance. In reliance on Soltz's representation, the court granted the request for a continuance. Soltz thereafter refused to sign the stipulation with plaintiff's counsel. No moratorium was ever entered on litigation against the city.
On November 29, 1990, the City Council passed Bill 1057 without having given notice of public hearings as required by the Home Rule Charter, § 2.2-201(5). Mayor W. Wilson Goode signed the bill into law on December 4. Two days later, Lillie and Soltz filed a motion for summary judgment in plaintiff's case, claiming that the action was barred by the retroactivity provision of Bill 1057.
On March 18, 1991, the Common Pleas Court issued an opinion denying the motion for summary judgment. The court declined to address plaintiff's argument that the retroactivity provisions of Bill 1057 were unconstitutional, and instead concluded that, on the basis of the conduct set forth above, defendants were estopped from asserting the application of Bill 1057 to plaintiff's case. See Agresta v. Gillespie, 22 Phila. 178 (1991). The court certified its order for appeal, but the Commonwealth Court declined to exercise appellate jurisdiction over the interlocutory order. See City of Philadelphia v. Agresta, 139 Pa. Commw. 7, 590 A.2d 1314 (Pa. Commw. 1991). Plaintiff's case then proceeded to trial. On April 22, 1991, a jury returned a verdict in favor of plaintiff in the amount of $ 4,800,000, and the court entered judgment in that amount. Appeal of that judgment is pending in state court. One of the bases for the appeal is defendants' contention that plaintiff's recovery was barred by Bill 1057.
II. Legal Analysis
The basis of plaintiff's claim is that defendants' actions violated her due process rights under the Fourteenth Amendment and her right to petition the government for redress of grievances under the First Amendment. She alleges that, while defendants' alleged attempt to deprive her of a state law remedy for the wrongful death of her husband ultimately failed, she nevertheless suffered harm at defendants' hands through the delay in receiving her day in court and the resulting added expense, complexity, and uncertainty of her case in state court. The right of access to the courts, which plaintiff alleges was violated by defendants' conduct, is a part of the First Amendment right to petition the government. See California Motor Transp. Co. v. Trucking Unltd., 404 U.S. 508, 510, 92 S. Ct. 609, 30 L. Ed. 2d 642 (1972).
Defendants propose four separate grounds on which, in their view, they are entitled to dismissal of plaintiffs' complaint. These will be discussed in turn.
First, defendants contend that plaintiff lacks standing to bring an action in this court because plaintiff has failed to demonstrate the existence of an actionable case or controversy. In defendants' view, plaintiff has been fully compensated for any wrongs that she may have suffered at the hands of the city and its representatives by the jury verdict and judgment that she obtained in state court. Further, defendants argue, to the extent that the state court judgment may be reversed in post-trial motions or on appeal, any resulting injury to plaintiff has not yet materialized.
These arguments are unavailing. Plaintiff recovered in state court, not for any harm suffered by her as a result of the allegedly unconstitutional passage of Bill 1057, but for the wrongful death of plaintiff's decedent at the hands of the Philadelphia Police. Although the state court was required to address the applicability of Bill 1057 to the case before it, the harm to plaintiff's constitutional rights that she alleges here was not at issue in the state court action. Moreover, while the full consequences of that alleged injury may not yet be apparent, plaintiff has sufficiently alleged an injury to her constitutional rights by claiming that defendants, acting under color of state law, delayed and otherwise jeopardized her access to the state court. See Ryland v. Shapiro, 708 F.2d 967, 971-74 (5th Cir. 1983); Crews v. Petrosky, 509 F. Supp. 1199, 1204 (W.D. Pa. 1981). Plaintiff therefore has standing to bring the present action.
Defendants contend that, even if plaintiff has standing, this court should refrain from hearing her claim under the various forms of abstention recognized by the Supreme Court. Where a case clearly falls within the subject matter jurisdiction of a federal court, that court may, in very limited circumstances, decline to exercise that jurisdiction. Defendants claim that abstention is proper in the present case under two separate doctrines.
a. Pullman abstention
In Railroad Commission v. Pullman Co., 312 U.S. 496, 85 L. Ed. 971, 61 S. Ct. 643 (1941), the Supreme Court held that a federal court may abstain from deciding a federal constitutional claim before it when the constitutional issue may be rendered moot by a state court interpretation of a difficult and unsettled question of state law. Defendants note that in the present case, the state court resolved the applicability of Bill 1057 to plaintiff's state court claim through the equitable principles of estoppel, and thus avoided the necessity of addressing the constitutionality of the bill. They also assert that the validity of retroactive application of Bill 1057 is currently before the Pennsylvania Supreme Court, and therefore that a state court interpretation of the relevant state law is imminent.
These arguments ignore the fact that the relief plaintiff seeks here is for acts distinct from those on which she sued in state court. While the state court ultimately determined that defendants were estopped from arguing that Bill 1057 applied to plaintiff's case, plaintiff nevertheless may have suffered harm to her First Amendment right to access to the courts. That harm was not addressed by the state trial court, nor will it be by the state appellate court now considering plaintiff's case. Moreover, if the state appellate court determines that the district court erred by applying the principles of estoppel, the state courts will be directly confronted with the question of whether the retroactive application of Bill 1057 is constitutional.
Under the Pullman doctrine, a federal court is not required to defer to a pending state court determination of whether the state law violates the federal constitution. See Hawaii Housing Auth. v. Midkiff, 467 U.S. 229, 236-37, 81 L. Ed. 2d 186, 104 S. Ct. 2321 (1984).
Abstention under Pullman therefore is not appropriate in the present case.
b. Colorado River abstention
Under Colorado River Water Conservation District v. United States, 424 U.S. 800, 47 L. Ed. 2d 483, 96 S. Ct. 1236 (1976), a federal court may, under special circumstances, decline to entertain a case over which it has unquestioned jurisdiction for reasons of "wise judicial administration," primary among which is the benefit of avoiding duplicative litigation. Id. at 817. Abstention under Colorado River is not to be granted lightly. Despite the value of conserving scarce judicial resources and of promoting the comprehensive resolution of disputes within the framework of a single piece of litigation, the strength of the federal court's obligation to exercise the jurisdiction conferred upon it, combined with the absence of constitutional or strong federalism concerns, makes abstention for the avoidance of duplicative litigation appropriate only under exceptional circumstances. See id. at 817-18.
The Supreme Court has identified six factors for the district court to consider in deciding whether a stay is appropriate: (1) whether one court has first obtained jurisdiction over property; (2) the inconvenience of the federal forum; (3) the desirability of avoiding piecemeal litigation; (4) the order in which the state and federal courts obtained jurisdiction; (5) the source of law that will provide the rules of decision; and (6) the adequacy of the state court proceedings to protect the parties' rights. See Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 15-16, 25-26, 74 L. Ed. 2d 765, 103 S. Ct. 927 (1983); Colorado River, 424 U.S. at 818.
Defendants do not argue that jurisdiction over property is involved in the present case, nor do they argue that the federal forum is inconvenient. They do, however, contend that the remaining four factors all weigh in favor of abstention. Their argument, once again, misapprehends the nature of plaintiff's claim. The claims presented here are federal constitutional claims, not state tort law claims, and this court acquired jurisdiction over those claims before the state court did.
While plaintiff clearly could raise these claims in state court, she should not be bound to do so merely because they arise out of events that occurred during state court proceedings. Defendants have failed to make a showing that the extraordinary relief of Colorado River abstention is appropriate in this case.
a. Mayor Goode and the members of the City Council
Mayor Goode and the individual members of the Philadelphia City Council claim that they are absolutely immune from suits for damages arising out of actions undertaken in a legislative capacity. See Tenney v. Brandhove, 341 U.S. 367, 377, 95 L. Ed. 1019, 71 S. Ct. 783 (1951); Aitchison v. Raffiani, 708 F.2d 96, 99 (3d Cir. 1983). Absolute immunity, however, applies only to actions brought against defendants in their individual capacities. See Aitchison, 708 F.2d at 100. Legislators are entitled to absolute immunity for fear that, if they know they may be individually liable for their actions, they will be hesitant in discharging their duties. See Tenney, 341 U.S. at 377. Where any liability will be borne by the municipality, rather than by the defendant legislators, the rationale for according the legislators immunity disappears. Because Mayor Goode and the members of the City Council are named in their official capacities only, legislative immunity is inapplicable in the present case.
b. City Solicitor Lillie and Deputy City Solicitor Soltz
Defendants Charisse Lillie and David A. Soltz are named in their individual capacities as well as in their official capacities. At the time of the events alleged in the complaint, Charisse Lillie was Solicitor of the City of Philadelphia, and David Soltz was Deputy City Solicitor. They contend that they are entitled to absolute immunity for their conduct both during plaintiff's state court proceedings and in conjunction with the City Council.
Lillie and Soltz contend that they have absolute immunity for communications made during the course of plaintiff's state court proceedings under the state law doctrine of judicial privilege. The judicial privilege applies to statements by a party, a witness, counsel, or a judge, made during the course of judicial proceedings. See Post v. Mendel, 510 Pa. 213, 507 A.2d 351, 355 (Pa. 1986). The phrase "judicial proceedings" is interpreted broadly when the communication at issue is relevant to the conduct of litigation: it applies not merely to pleadings and sessions in open court, but also to "less formal circumstances, such as preliminary conferences, negotiations, and routine correspondence exchanges between counsel in furtherance of their clients' interests." Pelagatti v. Cohen, 370 Pa. Super. 422, 536 A.2d 1337, 1344 (Pa. Super. 1987), appeal denied, 548 A.2d 256 (Pa. 1988). While the doctrine of judicial privilege originally arose in the context of actions for defamation, it has been applied in Pennsylvania to other forms of tortious behavior as well. See Brown v. Delaware Valley Transplant Program, 372 Pa. Super. 629, 539 A.2d 1372, 1374-75 (Pa. Super. 1988).
The cases cited by both parties that apply the judicial privilege arise under state law. The existence of a state law privilege, however, is not conclusive: a section 1983 action arises under federal law, and in such an action there is a federal interest in defining the scope of applicable privileges. See Ferri v. Ackerman, 444 U.S. 193, 198, 62 L. Ed. 2d 355, 100 S. Ct. 402 n.13 (1979). Extension of the judicial privilege to section 1983 actions would effect a substantial enlargement of official immunity in the section 1983 context. On those occasions in which the Supreme Court has recognized absolute immunity to a section 1983 action, the official accorded immunity was vested with a substantial amount of discretion, whose exercise was a central feature of the official's duty. See Imbler v. Pachtman, 424 U.S. 409, 425-28, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976) (absolute immunity for prosecutors under section 1983); Pierson v. Ray, 386 U.S. 547, 554-55, 18 L. Ed. 2d 288, 87 S. Ct. 1213 (absolute immunity under section 1983 for judges acting in judicial capacity); Tenney, 341 U.S. at 372-79 (absolute immunity for legislators acting in their legislative capacity under section 1983). It is true that a city solicitor acting as defense counsel in a civil case exercises a measure of discretion in determining how to conduct the litigation; that measure of discretion, however, does not appear appreciably different from the discretion exercised by an attorney conducting comparable litigation in private practice. In contrast, a prosecutor exercises broad discretion in determining whether to initiate and prosecute a case; the threat of personal liability might well deter a prosecutor from exercising this discretion in the public interest. See Imbler, 424 U.S. at 424-25 (1976). Defendants Lillie and Soltz have failed to carry the burden of demonstrating that they are entitled to absolute immunity based on their roles in the conduct of plaintiff's state court litigation.
The only actions that Lillie and Soltz are alleged to have taken outside the scope of the state court proceedings are those related to the drafting and passage of Bill 1057 by the City Council. To the extent that Lillie and Soltz participated in the drafting of the bill and aided the City Council in understanding the meaning of the bill's provisions, they were acting as legal aides in the course of legislative drafting. Therefore, if the members of the City Council would be entitled to absolute immunity against being sued in their individual capacities, Lillie and Soltz would likewise be entitled to absolute immunity as to these actions. See Aitchison, 708 F.2d at 99-100.
The Third Circuit has set forth the requirements for legislative immunity as follows:
First, the act must be "substantially" legislative, i.e., legislative in character. Legislative acts are those which involve policy-making decisions of a general scope or, to put it another way, legislation involves line-drawing. Where the decision affects a small number or a single individual, the legislative power is not implicated, and the act takes on the nature of administration. In addition, the act must be "procedurally" legislative, that is, passed by means of established legislative procedures. This principle requires that constitutionally accepted procedures of enacting the legislation must be followed in order to assure that the act is a legitimate, reasoned decision representing the will of the people which the governing body has been chosen to serve.
Ryan v. Burlington County, 889 F.2d 1286, 1290-91 (3d Cir. 1989). Plaintiff argues that the City Council did not act legislatively because it did not pass Bill 1057 according to the procedures required by the Philadelphia Home Rule Charter. She asserts that the members of the City Council, if sued in their individual capacity, would not be entitled to legislative immunity. Her argument could be read, by extension, to contend that Lillie and Soltz are not entitled to legislative immunity.
Such an argument, if made, would be unavailing. There is no suggestion in the complaint that the advice that Lillie and Soltz gave to the City Council in connection with the City Council's consideration of Bill 1057 followed other than ordinary procedures, nor is there a suggestion in the complaint that either Lillie or Soltz participated in the decision by the City Council to suspend the rules and pass Bill 1057 without public hearings. It appears from the complaint that at all times when Lillie and Soltz played the role of legal aides to the City Council, the City Council was acting in a procedurally proper manner. Lillie and Soltz are therefore entitled to legislative immunity for all claims against them arising from the drafting of Bill 1057 and statements concerning the content of the bill to the City Council.
4. Failure to state a claim
a. Section 1983
To state a section 1983 claim, a plaintiff must allege (1) conduct by a person acting under color of state law that (2) deprived the plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. See Shaw by Strain v. Strackhouse, 920 F.2d 1135, 1142 (3d Cir. 1990). The individual defendants do not contend that they did not act under color of state law. Likewise, it is apparent, from the discussion above, that plaintiff has alleged a deprivation of her constitutional rights. Defendants contend that plaintiff has nevertheless failed to state a claim under section 1983 because she has failed to plead the elements of her claim with particularity and because she has failed to plead facts sufficient to establish municipal liability.
i. Failure to plead with particularity
As a general rule, pleadings are to be construed liberally. See Conley v. Gibson, 355 U.S. 41, 47-48, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). The Third Circuit has set a higher standard for civil rights complaints, however. In United States v. City of Philadelphia, 644 F.2d 187 (3d Cir. 1980), the court wrote:
[A] substantial number of these cases are frivolous or should be litigated in the State courts; they all cause defendants--public officials, policemen and citizens alike--considerable expense, vexation and perhaps unfounded notoriety. It is an important public policy to weed out the frivolous and insubstantial cases at an early stage in the litigation, and still keep the doors of the federal courts open to legitimate claims.