come to light. These alleged efforts were apparently effective, Smith alleges, since the existence of the lifters did not come to light until years later, while his criminal conviction for the murders was on direct appeal to the Pennsylvania Supreme Court. Discovery of the lifters and of the prosecution's apparent involvement in concealing their existence from defendant and his counsel led ultimately to the dismissal of all charges against Smith under a Pennsylvania Supreme Court order of discharge barring his retrial on the ground that it would violate the Pennsylvania Constitution's prohibition against double jeopardy. The Supreme Court's ruling of discharge was based on the pro-secutorial misconduct in concealing the existence of the lifters.
Smith alleges that the police investigators and a deputy attorney general assigned to the investigation conspired to conceal the lifters and falsify evidence linking him to the murders because they had a mutual pecuniary interest in the success of Wambaugh's book on the murders and in a possible television mini-series based on the book. This led them, Smith alleges, to take steps to increase the likelihood that he would be convicted of the Reinert murders.
Smith asserts three claims against Wambaugh: 1) a section 1983 claim, 42 U.S.C. § 1983, based on Smith's alleged participation in a conspiracy to violate his Fourth, Sixth and Fourteenth Amendment rights (Count I); 2) a state tort claim for civil conspiracy and abuse of process based on alleged acts of evidence tampering for the purpose of altering the course and outcome of plaintiff's criminal trial for the "pecuniary" and "self-aggrandizing interests" of the alleged co-conspirators (Count II); and 3) a state tort claim for abuse of process based on defendant's alleged suborning of evidence tampering (Count III).
Defendant has filed a Rule 12(b)(6) motion to dismiss all claims as time-barred and for failure to state a cause of action on the ground that plaintiff cannot establish termination of the underlying criminal action in his favor, an element essential to his section 1983 claim. For the reasons which follow, defendant's motion will be granted in part. Plaintiff's state tort claims will be dismissed with prejudice as time-barred. Plaintiff's section 1983 claim survives.
Rule 12(b)(6) motion
In deciding defendants' motion, we are "required to accept as true all allegations in the complaint and all reasonable inferences that can be drawn from them after construing them in the light most favorable to the non-movant." Jordan v. Fox, Rothschild, O'Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir. 1994). "In determining whether a claim should be dismissed under Rule 12(b)(6)," we look "only to the facts alleged in the complaint and its attachments without reference to other parts of the record." Id. Dismissal is not appropriate unless "it clearly appears that no relief can be granted under any set of facts that could be proved consistently with the plaintiff's allegations." Id.
Timeliness of section 1983 claim
Defendant moves to dismiss all claims as time-barred. Federal courts apply the state personal injury statute of limitations in section 1983 actions, Wilson v. Garcia, 471 U.S. 261, 276-80, 85 L. Ed. 2d 254, 105 S. Ct. 1938 (1985). Under the Pennsylvania statute of limitations applicable here, the time limit for filing a section 1983 claim is two years. Smith v. City of Pittsburgh, 764 F.2d 188, 194 (3d Cir. 1985), cert. denied, 474 U.S. 950, 88 L. Ed. 2d 297, 106 S. Ct. 349 (1985) and 42 Pa. Cons. Stat. Ann. § 5524.
When the cause of action accrues on a section 1983 claim is a question of federal law. Albright v. Oliver, 127 L. Ed. 2d 114, 128 n. 6, 114 S. Ct. 807 (1994) (Ginsburg, J. concurring). In general, a section 1983 claim accrues when the facts which support the claim are, or should be, apparent to a person with a reasonably prudent regard for his rights and when the identity of the person or persons responsible for the alleged violation is known or reasonably should have been known to the plaintiff. McMillian v. Johnson, Civ. No. 93-A-699-N, slip op. 15 (M.D.Alabama Jan. 17, 1995) (1995 WESTLAW 21963), citing Mullinax v. McElhenney, 817 F.2d 711, 716 (11th Cir. 1987).
Under the facts alleged here, that occurred on September 18, 1992, the date of plaintiff's discharge from state custody. This action was filed on September 14, 1994, within two years after Smith's discharge by the Pennsylvania Supreme Court pursuant to its order dated September 18, 1992. Under this court's interpretation of the United States Supreme Court's ruling in Heck v. Humphrey, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994),
plaintiff's section 1983 cause of action accrued on the date of discharge.
The Court's analysis in that case led this court to conclude that the cause of action for the deprivation of a fair trial recognized in Heck, supra, does not ripen until the underlying conviction is reversed, expunged, vacated, or otherwise rendered a nullity. Id. at 394. See generally: Snyder v. City of Alexandria, 870 F. Supp. 672 (E.D.Va. 1994); Hudson v. Chicago Police Department, 860 F. Supp. 521, 523 (N.D.Ill. 1994); and McMillian v. Johnson, Civ. No. 93-A-699-N, slip op. at 15 (M.D.Ala. Jan. 17, 1995) (1995 WESTLAW 21963).
Although plaintiff's claim is not asserted against a state actor, it is plainly governed by the Court's ruling in Heck. Plaintiff alleges that the Pennsylvania State Police Troopers assigned to investigate the murders conspired with Wambaugh to conceal the rubber lifters which would have supported plaintiff's claim of innocence and also conspired to fabricate inculpatory evidence by encouraging a prosecution witness to change his story. (Plaintiff's complaint, P 46) He can establish his claim that Wambaugh conspired with state actors to deprive him of his federal constitutional right to a fair trial only by attacking the validity of his underlying conviction and the state process used to obtain that conviction.
Heck therefore plainly applies to the civil rights conspiracy claim alleged here. Its application renders plaintiff's filing timely.
Asserted inability to prove favorable termination of underlying action
Defendant also seeks dismissal of plaintiff's civil rights claim on the ground that plaintiff cannot establish termination of the underlying criminal action in his favor as is required by federal law. For the reasons stated in the memorandum filed by this court on March 24, 1995 in the companion action, Smith v. Holtz, we reject defendant's argument on this issue.
State tort claims
Plaintiff alleges a state tort claim for civil conspiracy and for abuse of process based on alleged acts of evidence tampering and a state tort claim for abuse of process based on defendant's alleged suborning of evidence tampering.
(Plaintiff's complaint, Counts II and III, respectively) Plaintiff alleges that Wambaugh and his alleged co-conspirators "perversely, coercively and/or improperly used the criminal process for a purpose not intended by law; namely to fulfill their pecuniary and/or otherwise self-aggrandizing interests by the evidence tampering means aforesaid." (Plaintiff's complaint, P 84)
To determine when plaintiff's cause of action accrued on the state claims asserted here, it is helpful first to review the underpinnings and elements of plaintiff's state law claims.
Abuse of process is defined by the Restatement (Second) of Torts, § 682 as follows:
One who uses a legal process, whether criminal or civil, against another primarily to accomplish a purpose for which it is not designed, is subject to liability to the other for harm caused by the abuse of process.