actions in preparation for, and participation in, the press conference were "objectively reasonable" under the circumstances. Even viewing all Plaintiff's evidence in the light most favorable to him, we cannot see any evidence rising to the level of material issue. If the Plaintiff's right to a fair trial was damaged, the injury was remedied by the trial judge's decision to bring in a jury from Adams County. Accordingly, Plaintiff's claim against Defendants Burfete and Lichtwalner in paragraph 54 will be dismissed.
C. Defendant Preate.
Plaintiff alleges in Count II, that Defendant Preate is liable for "improper advice" to the prosecutors and investigators and for issuing a press release on April 17, 1991, upon the Plaintiff's arrest.
Personal involvement in the alleged liability is required under 42 U.S.C. § 1983. See e.g., Gay v. Petsock, 917 F.2d 768, 771 (3rd Cir. 1990); Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3rd Cir. 1988). Liability cannot be predicated solely on the operation of respondeat superior. Rode, 845 F.2d at 1207. However, personal involvement of a supervisor can be demonstrated through allegations of personal direction or of actual knowledge or acquiescence in the alleged wrongs. Andrews v. City of Philadelphia, 895 F.2d 1469, 1478 (3rd Cir. 1990) (citing Rode, 845 F.2d at 1207).
The record shows the Attorney General was aware that his office was investigating a decrease of revenue from the parking meters in the borough of Stroudsburg and that Plaintiff Pansy was kept under surveillance during the course of the investigation and finally Defendant Preate received only updates from his personnel on the status of the investigation. The Attorney General's authority to supervise investigations across the state does not allow the Plaintiff to ultimately charge him with liability. If this were so, he would be liable every time one of his subordinates provided him with an update regarding an investigation.
"Not every injury in which a government official has played some role can be vindicated in a civil rights action." Young v. Keohane, 809 F. Supp. 1185, 1200 (M.D. Pa. 1992) (citing Martinez v. California, 444 U.S. 277, 285, 62 L. Ed. 2d 481, 100 S. Ct. 553 (1980)). Thus, even if this Court assumes Plaintiff's rights were violated when the prosecution was brought in Attorney General Preate's name or when the press release was released with Attorney Preate's name and the Attorney General had sent a letter to officials in the borough of Stroudsburg, Plaintiff may not recover against Defendant Preate because the deprivation was merely an indifferent or incidental result of Preate's conduct. See Cospito v. Heckler, 742 F.2d 72, 82 (3rd Cir. 1984).
With the issue of causation aside, there is nothing in the record that shows Defendant Preate acted improperly. Furthermore, Defendant Preate is entitled to the same immunities as Defendants Bufrete and Lichtenwalner. Even if Defendant Preate provided "improper advice" to the prosecutors, the applicable law, as we earlier explained, still affords him absolute immunity to the Plaintiff's claims
Therefore, under the circumstances, Defendant Preate is entitled to summary judgment as a matter of law.
D. Witness Immunity.
Plaintiff alleges in Count I, paragraph 49(d) that Defendant Crossin, assisted by Defendants Farkus and Purcell testified incorrectly before the Grand Jury. Defendants contend that Defendant Crossin or anyone else who testified before a grand jury has absolute immunity from prosecution. After reviewing the evidence in the record and the case law applicable we agree.
In Briscoe v. LaHue, 460 U.S. 325, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983), the United States Supreme Court granted absolute immunity to two police officers who testified falsely at trial pertaining to a 42 U.S.C. § 1983 action. The Supreme Court determined that § 1983 did not provide a remedy for damages against a private party for testimony given during a judicial proceeding.
The Third Circuit extended this protection to pre-trial proceedings in Williams v. Hepting, 844 F.2d 138, 140-1 (3rd Cir. 1988). The Third Circuit has reaffirmed the Williams decision in McArdle v. Tronetti, supra and Kulwicki v. Dawson, 969 F.2d 1454 (3rd Cir. 1992).
The record shows that the Plaintiff's claims are based on the Defendants' testimony before the Grand Jury and other judicial proceedings. Because the Defendants' collective testimony given in these proceedings cannot subject them to liability, they are are absolutely immune from prosecution. Accordingly, these claims will be dismissed.
E. Defendant Gallagher.
In Count IV, Plaintiff alleges claims of failure to train and breach of supervisory liability against Defendants Gallagher and Purcell.
Plaintiff alleges Defendant Gallagher assigned Defendant Crossin to the Plaintiff's investigation knowing that Defendant Crossin had "insufficient training and expertise to handle a largely circumstantial case of alleged white collar theft." (Doc.No. 1, para. 66). Furthermore, Plaintiff alleges Defendants Gallagher and Purcell had knowledge of the alleged constitutional violation of the Plaintiff's rights and participated in it. (Doc.No. 1, para. 67).
However, in 1983 actions, "liability cannot be vicariously or under [the] traditional ground of respondeat superior." Hampton v. Holmesburg Prison Officials, 546 F.2d 1077, 1082 (3rd Cir. 1976); Ressler v. Scheipe, 505 F. Supp. 155, 156 (E.D. Pa. 1981). Direct personal involvement by the Defendants in the conduct depriving a Plaintiff of his rights or active knowledge and acquiescence on the Defendants' part must be alleged. Bracey v. Grenoble, 494 F.2d 566 (3rd cir. 1974); Brown v. Sielaff, 474 F.2d 826 (3rd Cir. 1973)." Gilmore V. Jeffes, 675 F. Supp. 219 (M.D. Pa. 1987).
As to Defendant Gallagher, Plaintiff has failed to introduce any evidence that shows where or how Defendant Gallagher had knowledge of insufficient training of Defendant Cross in. Furthermore, the record is also void of evidence of personal involvement by Defendant Gallagher in this case. Because Plaintiff has failed to allege any direct personal knowledge or involvement on the part of Defendant Gallagher, Plaintiff fails to meet the requirements of § 1983 and for that reason the Court will dismiss the claims in Count IV against Gallagher as well.
D. Punitive Damages.
Since this Court has determined that Defendants had probable cause to make the arrest and, since there is no evidence of ill will on part of the Defendants in filing criminal charges against the Plaintiff, we find there is no reason to determine the issue of punitive damages in this case.
Based on the foregoing reasons, this Court will grant the Defendants' Motion for Summary Judgment pertaining to all claims made by Plaintiff. An appropriate Order is attached.
Richard P. Conaboy
United States District Judge
AND NOW, THIS 6th DAY OF October, 1994, IT IS HEREBY ORDERED THAT:
1. The Defendants' Motion for Summary Judgment is GRANTED.