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March 24, 1995

JAY C. SMITH, Plaintiff
JOHN J. HOLTZ, et al., Defendants

James F. McClure, Jr., United States District Judge

The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

March 24, 1995


 Plaintiff Jay C. Smith filed this section 1983 action *fn1" alleging the violation of his civil rights by defendants in connection with his April, 1986 murder conviction. Plaintiff was convicted of murdering Philadelphia school teacher Susan Reinert and her two children, Michael and Karen Reinert, and was sentenced to death for those crimes. Commonwealth v. Pennsylvania v. Jay C. Smith, Crim. Nos. 1677, 1677(A) and 1677(B) (Dauphin Co.). Reinert's body was discovered in Dauphin County on June 25, 1979. The bodies of her children were never found.

 Smith defended the charges against him by contending that Reinert and her children had been murdered at the New Jersey shore by William Bradfield and or his associates of his and that those individuals had then conspired to make it appear that Smith was responsible for the murders. Bradfield had been previously convicted of murdering the three victims.

 During Smith's trial, his counsel cross-examined a prosecution witness on the existence of physical evidence found during the autopsy of Reinert's body which supported his theory that the murders had taken place at the New Jersey shore. During cross-examination, prosecution witness John C. Balshy, a former state policeman who had been present during the autopsy, testified that he had observed a grainy substance--which appeared to be sand--between Reinert's toes. Balshy further testified that he had preserved this evidence by pressing it onto rubber "lifters." (Plaintiff's complaint, PP 20-21). The "lifters" were not produced at trial, and their actual existence was never confirmed by the prosecution during, or at any time prior to, Smith's 1986 trial.

 Smith's conviction was reversed on direct appeal to the Pennsylvania Supreme Court, Commonwealth v. Smith, 523 Pa. 577, 568 A.2d 600 (Pa. 1987), on evidentiary grounds unrelated to the alleged concealment of the lifters and his case remanded to the Dauphin County Court of Common Pleas for a new trial. *fn2"

 Smith's motion for dismissal, filed February 1, 1990, was denied by the Dauphin County Court of Common Pleas. The Pennsylvania Superior Court affirmed the denial on appeal, Commonwealth v. Smith, 404 Pa. Super. 553, 591 A.2d 730 (Pa. Super. Ct. 1991). The Pennsylvania Supreme Court reversed on September 18, 1992, Commonwealth v. Smith, 532 Pa. 177, 615 A.2d 321 (Pa. 1992), and, based on its finding that the Commonwealth had deliberately suppressed the existence of the two adhesive lifters, ordered plaintiff's discharge from custody. The Pennsylvania Supreme Court held that, due to the prosecutorial misconduct which led to plaintiff's conviction, no further charges could be pursued against Smith for the Reinert murders and that a retrial would violate his right against double jeopardy under the Pennsylvania Constitution.

 Plaintiff filed this action on September 15, 1993 against the state investigators responsible for reviewing and preserving the evidence against him: John J. Holtz and Ronald F. Colyer, both of the Bureau of Technical Services of the Pennsylvania State Police; Victor Dove, John J. Purcell and William J. Lander of the Central Regional Office of the Bureau of Criminal Investigation of the Office of the Pennsylvania Attorney General; and Paul Yatron, Executive Director of the Attorney General's office in Harrisburg, Pennsylvania. (Plaintiff's complaint, PP 10-16).

 Smith alleges that defendants knowingly and deliberately concealed from him and from his attorney, William Costopoulos, Esq., exculpatory evidence which would have bolstered his claims of innocence in violation of his right to receive from the prosecution exculpatory evidence under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1962). *fn3" Plaintiff also asserts the non-disclosure to be a violation of the Rules of Professional Conduct for Attorneys, Rule 3.8. (Plaintiff's complaint, P 38). Smith alleges that the defendants knowingly and intentionally concealed evidence critical to his defense with the intention and effect of denying him a fair trial. (Plaintiff's complaint, PP 23-29 and 34-35).

 Plaintiff alleges that the defendants acted out of a desire to: 1) "avoid public embarrassment of the state police and the office of the attorney general because of the conduct of their investigation;" 2) "avoid confirmation of plaintiff's allegations of prosecutorial misconduct in his post-conviction petitions; and to 'cover up' a persistent, consistent pattern of misconduct and incompetence throughout the investigation of the Reinert murders;" and 3) on the part of defendant Holtz, to receive compensation for his story on the investigation. (Plaintiff's complaint, P 36).

 On the basis of the foregoing, plaintiff alleges a cause of action under section 1983 based on the violation of his Fifth, Sixth and Fourteenth Amendment rights. He alleges that he has been deprived of the right to: a) freedom from the deprivation of life, liberty or property without due process of law; b) a fair trial in a criminal prosecution, and the right to be free of malicious prosecution; and c) the right to equal protection of the laws. (Plaintiff's complaint, P 40). As redress for these alleged violations, plaintiff seeks compensatory and punitive damages and attorney's fees pursuant to section 1988.

  Defendants moved for partial summary judgment *fn4" on plaintiff's due process and equal protection claims on the ground that there are no material facts in dispute on those claims and that defendants are entitled to judgment on them as a matter of law.

 In an order and memorandum dated June 27, 1994, this court granted defendants' motion and entered judgment in defendants' favor on all claims asserted. The basis for the court's ruling was twofold. The court found that plaintiff's malicious prosecution claim was barred under the United States Supreme Court decision in Albright v. Oliver, 127 L. Ed. 2d 114, 114 S. Ct. 807 (1994) (Rehnquist, C.J., plurality opin.), which abrogated the right to proceed on a malicious prosecution claim under the Due Process Clause of the Fourteenth Amendment. The court further found that all section 1983 claims asserted under the Fifth, Sixth and Fourteenth Amendments were barred by the statute of limitations, since plaintiff initiated this action more than two years after learning of the prosecution's alleged concealment of the lifters. Plaintiff appealed that ruling to the United States Court of Appeals for the Third Circuit.

 Three days prior to this court's grant of defendants' motion, the United States Supreme Court ruled in Heck v. Humphrey, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), that a civil rights plaintiff cannot maintain a cause of action arising out of a state criminal charge, unless and until he can demonstrate that the conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 394. The Supreme Court's ruling in Heck, supra, plainly undercuts the rationale for this court's ruling that plaintiff's section 1983 claims are time-barred.

 On the basis of Heck, supra, this court certified to the Third Circuit that: "if a Rule 60(b) motion were filed by the plaintiff, the motion would be granted" and the court would "grant reconsideration on the statute of limitations question, grant counsel an opportunity to brief the applicability of Heck, supra, to the issues presented here, and unless arguments of the defendants persuade us otherwise, reverse the grant of summary judgment entered in favor of the defendants on plaintiff's section 1983 claim for the denial of a fair trial."

 Plaintiff then filed a Rule 60(b) motion *fn5" asking for relief from the court's entry of judgment against him. Plaintiff also moved for a remand from the Third Circuit. The latter motion was granted, and the matter remanded from the Third Circuit to this court.

 Plaintiff's Rule 60 motion has been fully briefed. For the reasons stated herein, the court will grant the motion and vacate the judgment entered June 27, 1994 on plaintiff's Sixth and Fourteenth Amendment claims. However, no basis exists to vacate entry of judgment on plaintiff's Fifth Amendment or Fourteenth Amendment malicious prosecution claim, and the court's ruling on those claims stands. No further discussion is needed on this ruling.


 Standard of review

 Plaintiff moves for reconsideration under Fed. R. Civ. P. 60(b). Rule 60(b) confers authority on a district court to relieve a party from a final judgment "on motion and upon such terms as are just" on the basis of any "reason justifying relief from the operation of the judgment." Fed.R.Civ.P. 60(b)(6).

 Although the "law is well established that Rule 60(b)(6) affords relief from a final judgment only under extraordinary circumstances," High v. Zant, 916 F.2d 1507, 1509 (11th Cir.1990), cert. denied, 499 U.S. 954, 113 L. Ed. 2d 483, 111 S. Ct. 1432 (1991), it is equally "well settled that the matter is within the sound discretion of the district court." Id. Scott v. Singletary, Civ. No. 83-8293, slip op. at 2 (S.D.Fla. Nov. 17, 1994) (1994 WL 669882).

 A supervening clarification of controlling law by a higher court can afford a sufficient basis for granting a Rule 60(b) motion. See: Adams v. Merrill, Lynch, Pierce, Fenner & Bowen, 888 F.2d 696 (10th Cir. 1989) and Cox v. Wyrick, 873 F.2d 200 (8th Cir. 1989); Ritter v. Smith, 811 F.2d 1398, 1401 (11th Cir.), cert. denied, 483 U.S. 1010, 97 L. Ed. 2d 747, 107 S. Ct. 3242 (1987); and Scott, supra. The following factors are relevant in determining whether grant of a Rule 60(b) motion is appropriate based on change in controlling law: 1) whether the change in the law is final and definitive; 2) whether the judgment has been executed; 3) whether the Rule 60(b)(6) motion was filed soon after the judgment was rendered; 4) whether the intervening decision is closely related to the instant case; and 5) considerations of comity (the "Rule 60(b)(6) factors"). Scott, supra, slip op. at 2, citing High, supra, 916 F.2d at 1509 and Ritter, supra, 811 F.2d at 1401-03.

 One justification for allowing a Rule 60(b) request for relief is to afford the district court an opportunity to correct plain errors and avoid the needless delay and expense incurred by all concerned if the movant's sole remedy was appeal to a higher court. See: Scott, supra.

 Rule 60(b)(6) considerations

 The Supreme Court's decision, issued three days prior to our grant of defendants' motion, plainly justifies granting relief from the judgment under the relevant Rule 60(b)(6) considerations. Heck, supra, represents a "final and definitive" clarification of federal constitutional law issued by the nation's highest court. Plaintiff filed a timely appeal to the United States Court of Appeals for the Third Circuit and an equally timely Rule 60(b)(6) motion upon learning of the holding in Heck, supra. The Court's holding in Heck, supra is directly on point and is not distinguishable on any basis from the facts and issues presented here. Finally, grant of plaintiff's motion is consistent, not inconsistent, with considerations of ...

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