an unasserted claim against Kite for breach of contract and conspiracy to violate civil rights.
The Report, however, is unsigned by the Bankruptcy Judge, and it is unclear whether the Report took Rashid's amended schedule into consideration. Given this record, we are unable to determine whether Rashid's claims against Kite have been abandoned by Rashid's interim trustee. Taking Rashid's facts as true and making inferences in his favor, we must assume that the claims have been abandoned and therefore, we deny Kite's Motion to Dismiss the breach of contract and conspiracy claim against him based on lack of standing. We do so, however, without prejudice in case the matter can be amplified based on matters in the public record.
With respect to Rashid's claim against Kite for misrepresentation and fraud, this claim was not listed in Rashid's amended bankruptcy petition.
For that reason, this claim was never included in his estate and the interim trustee has had no opportunity to retain or abandon it. Krank, 109 Bankr. at 669 (quoting Lasater, 196 U.S. at 119). Rashid has no standing for this cause of action, therefore, and it must be dismissed.
Kite also seeks to dismiss the Complaint against him on the ground that "the subject matter of this suit against him is res judicata, all of these matters having been addressed and resolved in his favor in previous actions in this Court." There is no more to this line of argument, and without more, we cannot address it.
Finally, Kite seeks to dismiss the Complaint on the ground that he had a privilege to take all the alleged actions under the doctrine of witness immunity. This doctrine provides that witnesses are absolutely immune from suits arising from testimony given in the course of a judicial proceeding. Iseley v. Bucks County, 549 F. Supp. 160, 167 (E.D. Pa. 1982). This immunity extends to pre-trial statements so long as they are related to proposed litigation. Restatement (Second) of Torts § 588 cmt. b & e (1977); McArdle v. Tronetti, 769 F. Supp. 188, 190 (W.D. Pa. 1991), aff'd, 961 F.2d 1083 (3d Cir. 1992); Iseley, 549 F. Supp. at 164, 167 (defendant allegedly provided false and misleading investigatory statements and trial testimony; court dismissed all claims based on immunity). Further, a defendant is immune even if it is alleged that the defendant conspired to falsely testify. McArdle, 769 F. Supp. at 192 (citing cases).
Our review of Count Three indicate that it is based solely on Kite's testimony. Because Kite was a witness in a judicial proceeding and because his testimony was either at trial or was at some pretrial, protected proceeding, we find that Kite is absolutely immune from the charges asserted against him in Count Three of Rashid's Complaint.
Further, we find that Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364, 2372 (1994) precludes Count Three against Kite. Heck bars a prisoner from collaterally attacking the validity of his conviction in a civil suit for damages when that conviction has not been overruled or otherwise invalidated. Id. Rashid's cause of action clearly challenges the validity of his conviction and he seeks damages as relief. There is no allegation that this conviction has been disturbed in any way, and so the ruling of Heck controls.
Finally, Kite requests this Court to award sanctions pursuant to Rule 11 against Rashid. This request is denied.
An appropriate Order follows.
AND NOW, this 24th day of June, 1996, upon consideration of Defendant Kite's Motion to Dismiss and for Sanctions pursuant to Rule 11 of the Federal Rules of Civil Procedure, the Motion is hereby GRANTED in that Counts Two and Three are hereby DISMISSED against Defendant Kite with PREJUDICE. The Motion is hereby DENIED without PREJUDICE with respect to Count One. Defendant's request for Sanctions is hereby DENIED.
BY THE COURT:
J. CURTIS JOYNER, J.