516 F.2d 203 (3rd Cir. 1975), 74-1684, Waits v. McGowan

Docket Nº:74-1684.
Citation:516 F.2d 203
Party Name:Frank S. WAITS, Appellant, v. Hon. Raymond McGOWAN, A. J. S. C., Monmouth County, et al.
Case Date:April 30, 1975
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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516 F.2d 203 (3rd Cir. 1975)

Frank S. WAITS, Appellant,


Hon. Raymond McGOWAN, A. J. S. C., Monmouth County, et al.

No. 74-1684.

United States Court of Appeals, Third Circuit

April 30, 1975

Submitted on briefs Jan. 21, 1975.

Page 204

Frank S. Waits, pro se.

John G. Colannino, John M. Pillsbury, Pillsbury, Russell & Ashbey, Atlantic Highlands, N. J., for appellee Mulaney.

John M. Cannel, Asst. Public Defender, Newark, N. J., for appellees Hughes, Gearty and Cleary.

William F. Hyland, Atty. Gen. of N. J., Stephen Skillman, Asst. Atty. Gen., and Maureen McGrath, Deputy Atty. Gen., Trenton, N. J., for appellees Hon. Raymond McGowan and others.

Before VAN DUSEN, GIBBONS and HUNTER, Circuit Judges.


VAN DUSEN, Circuit Judge.

This appeal challenges a June 28, 1974, district court order dismissing a complaint under 42 U.S.C. § 1985(3) and § 1983, 1 alleging that defendants had

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conspired to withhold information showing the alleged illegal removal of plaintiff from Canada to New York without any extradition procedures or warrant, resulting in his present confinement in a New Jersey state prison after conviction followed by "a 9 to 10 year sentence imposed by the Superior Court of New Jersey, Monmouth County for the crime of manslaughter and neglect inclusive." The complaint also alleges that defendants acted under orders of the above court, in violation of Waits' rights, to have him returned to Monmouth County in April 1973 "for the sole purpose of prosecution." The complaint seeks $250,000. in damages from each of the defendants. On May 22, 1974, a motion to dismiss the complaint was filed on behalf of defendants McGowan, Yaccarino and Mulaney. On May 28, 1974, a separate motion " . . . for an Order dismissing the complaint pursuant to Rule 12(b)(6), F.R.Civ.P., and for summary judgment pursuant to Rule 56, F.R.Civ.P." was filed on behalf of defendants McGowan and Yaccarino, with affidavits attached alleging that such defendants are and have been, at all relevant times, judges of the New Jersey state courts. No counter-affidavit has been filed to such affidavits. On June 3, 1974, a motion to dismiss the action because it fails to state a claim upon which relief can be granted was filed on behalf of defendants Gearity, Hughes and Cleary.

I. Defendants McGowan, Yaccarino, Mulaney, Hughes and Cleary

Defendants McGowan and Yaccarino, being state judges, are immune from this suit. See Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967). Defendant Mulaney is alleged in the complaint to be Monmouth County prosecutor and, as such, is also immune from this suit. See Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966), and Kauffman v. Moss, 420 F.2d 1270 (3d Cir. 1970). Finally, the defendants Cleary and Hughes are each alleged to be "Public Defender-Monmouth County" and hence are immune from suit. 2 See Brown v. Joseph, 463 F.2d 1046, 1048-49 (3d Cir. 1972). 3

II. Defendant Gearity 4

The complaint alleges that this defendant is "Investigator For Monmouth County, Public Defender Office" and the defendant has not controverted or supplemented this description by affidavit or other means contemplated by F.R.Civ.P. 56. For the reasons stated below, we have concluded that the June 28, 1974, order must be affirmed insofar as it dismisses the complaint as to Gearity. (See, particularly, A and C below.)

  1. Immunity under 42 U.S.C. §§ 1983 and 1985

    In view of the allegations in this record that Gearity was acting solely in the course of his employment as an investigator for a public defender, working as a member of the bar in representing Waits as defendant in a state criminal prosecution (see first sentence of second paragraph under C below), we have concluded that he is immune from this suit. In Hill v. McClellan, 490 F.2d 859, 860 (5th Cir. 1974), the court pointed out that "a private person alleged to have conspired with a state judge and attorney who are entitled to immunity cannot be held liable, since he is not conspiring with persons acting under color of law against whom a valid claim could be stated. (Citing cases.)." See also French v. Corrigan, 432 F.2d 1211, 1214 (7th Cir. 1970); McIntosh v. Garofalo, 367 F.Supp. 501, 504-05 (W.D.Pa. 1973).

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    The federal courts have recognized that where the function of an attorney's employee and the judicial process are closely allied, immunity will be granted, whereas if such function is not directly related to the court's decision-making activities, such immunity may not be available. 5 For example, a prosecuting attorney's investigative activity based on leads and suspicion is distinguished, in some cases, from his acts directly related to the prosecution of an accused, with the result that he is denied immunity in the former situation. Dodd v. Spokane County, Washington, 393 F.2d 330, 335 (9th Cir. 1968); Balistrieri v. Warren, 314 F.Supp. 824, 826 (W.D.Wis.1970). However, where the defendant is directly involved in the judicial process, he may receive immunity in his own right for the performance of a discretionary act or he may be covered by the immunity afforded the judge because he is performing a ministerial function at the direction of the judge. The following cases indicate the range of reasoning used by the courts to protect the clerk of the court from liability in civil rights suits: Denman v. Leedy, 479 F.2d 1097, 1098 (6th Cir. 1973) (failure to fix bond was within scope of official, quasi-judicial duties); Blouin v. Dembitz, 367 F.Supp. 415...

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