Henderson v. Fisher, 78-2244

• Citation: 631 F.2d 1115
• Decision Date: 21 July 1980
• Docket Number: No. 78-2244,78-2244
• Parties: Calvin HENDERSON, P. O. Box 9901, Pittsburgh, Pa., 15233, Appellant, v. Michael D. FISHER, A. D. Atty.; Robert Zunich, A. D. Atty.; John Pope, Private Atty.; Dave Lichtenstein, Private Atty.; Margarette Reilly, Nurse; Donald Dorsey, Off. University; James Chester, Off. University; Edward Foster, Former Off. University, Pitts., Pa., Allegheny County, Pa. . Submitted Under Third Circuit Rule 12(6)
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 1115

631 F.2d 1115

Calvin HENDERSON, P. O. Box 9901, Pittsburgh, Pa., 15233, Appellant, v. Michael D. FISHER, A. D. Atty.; Robert Zunich, A. D. Atty. John Pope, Private Atty.; Dave Lichtenstein, Private Atty. Margarette Reilly, Nurse; Donald Dorsey, Off. University James Chester, Off. University; Edward Foster, Former Off University, Pitts., Pa., Allegheny County, Pa.

No. 78-2244.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6) July 21, 1980.

Decided Aug. 20, 1980.

As Amended Sept. 25, 1980.

Calvin Henderson, State Correctional Institution, pro se.

Jon Hogue, Titus & Marcus, Pittsburgh, Pa., amicus curiae, for appellant.

Alexander J. Jaffurs, County Sol., Charles T. Pankow, Allegheny County Law Dept., Robert B. Marcus, David L. Lichtenstein, P. C., John S. Sherry, Dennis R. Biondo, Asst. County Sol., Pittsburgh, Pa., for appellees.

Before ADAMS, HUNTER and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

PER CURIAM:

1. Calvin Henderson brought an action under the Tort Claims Act, 28 U.S.C. §§ 2671 to 2680 (1976) seeking redress for alleged constitutional violations arising out of his trial and conviction for sexual assault in the Pennsylvania Court of Common Pleas, Criminal Division of Allegheny County. As defendants he named three campus police officers at the University of Pittsburgh, his privately retained attorneys, and two assistant district attorneys. Noting the inapplicability of the Tort Claims Act, which applies to federal but not state employees, the magistrate, to whom the case was initially assigned, treated the plaintiff's complaint as a demand for relief based on the Civil Rights Act, 42 U.S.C. § 1983 (1976). The magistrate's treatment of the complaint as stating a cause of action under the civil rights laws is consistent with the policy of liberally construing a pro se litigant's complaint. Allegations of a pro se complaint are held to less stringent standards than formal pleadings drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972).

2. Each defendant filed a motion to dismiss the complaint. The magistrate recommended to the district court that the complaint be dismissed against the district attorneys because they were immune from suit. The magistrate further recommended that the complaint against the campus police officers and private attorneys be dismissed on the ground that the state action requirement of 42 U.S.C. § 1983 (1976) was not met. On the basis of the magistrate's recommendations, the district court dismissed the complaint as to all defendants. Henderson appeals the dismissal of the complaint. ¹

3. Having reviewed the district court's order, this court has decided that the portion of the order dismissing the complaint against one of the campus police officers and the two assistant district attorneys will be reversed. The remainder of the district court order will be affirmed.

4. Henderson was arrested in the predawn hours of October 23, 1973 by three campus police officers of the University of Pittsburgh and taken to the local police station. The victim had described her attacker as dressed in "jeans." At the time of arrest, which occurred shortly after the commission of the crime, Henderson was dressed in red trousers. Thus Henderson's clothing had evidentiary value for the purpose of identification. While Henderson was in police custody his clothing was seized and locked in an evidence locker under the jurisdiction of the police. On the morning of trial one of the three arresting campus police officers signed to remove the clothing from the locker. The clothes have not been returned to the court nor has an explanation for their removal been given. Henderson charges the police officer with removing evidence which would exculpate him.

5. Although the lawyer who represented Henderson at trial was an associate of the attorney Henderson had hired, he had not previously met his client. Henderson complains that the substitution of lawyers worked to his detriment in that the new lawyer, unfamiliar with the case, "did not even try to adequately represent" Henderson. Henderson's complaint against the assistant district attorneys charges that they knew of the removal of the exculpatory evidence but failed to take corrective action. These allegations in the complaint must be deemed true for the purpose of deciding a motion to dismiss for failure to state a claim for relief under Fed.R.Civ.P 12(b)(6). Bryson v. Brand, 621 F.2d 556 (3d Cir. 1980). The district court concluded that these allegations did not support a claim for relief under 42 U.S.C. § 1983 against the police officers and attorneys.

6. "Section 1983 provides a cause of action for 'the deprivation of any rights, privileges, or immunities secured by the Constitution and laws' by any person acting 'under color of any statute, ordinance, regulation, custom, or usage of any State or Territory.' " 42 U.S.C. § 1983. Gomez v. Toledo, --- U.S. ----, 100 S.Ct. 1920, 1922, 64 L.Ed.2d 572 (1980). Section 1983 should be "construed generously" to further the Congressional purpose of providing a damage remedy against the offending party in order to vindicate "cherished constitutional guarantees." See id.; Owen v. City of Independence, --- U.S. ----, 100 S.Ct. 1398, 1414, 63 L.Ed.2d 673 (1980). To ascertain whether Henderson has stated claims for relief under 42 U.S.C. § 1983 against the campus police and private attorneys this court must first determine whether their acts are actions "under color of any statute, ordinance, or regulation, custom or usage of any State or Territory." 42 U.S.C. § 1983 (1976). If this state action requirement is satisfied, we must next determine whether the acts of the campus police or attorneys deprived Henderson of any constitutionally guaranteed rights. In reviewing the dismissal of the complaint against the prosecutors, we must determine whether absolute prosecutorial immunity extends to the facts alleged here.

I. The Campus Police Liability Under Section 1983.

7. The district court, on the basis of the magistrate's suggestion, determined that the acts of the campus police of the University of Pittsburgh did not satisfy the color of state authority requirement of 42 U.S.C. § 1983. Therefore, the district court dismissed the complaint against the campus police. We do not agree with the conclusion of the district court that the acts of the campus police of the University of Pittsburgh are private acts, not performed under color of state authority. By the University of Pittsburgh-Commonwealth Act, Pa.Stat.Ann. tit. 24, §§ 2510-201 to 211 (Purdon Supp. 1979-80), the University of Pittsburgh has lost its wholly private character, and has become "an instrumentality of the Commonwealth to serve as a State related institution." Pa.Stat.Ann. tit. 24, § 2510-202(6) (Purdon Supp. 1979-80); ² see Note, 52 N.Y.U.L.Rev. 1401 (1977). Therefore, the Pennsylvania legislature has itself declared that the University of Pittsburgh derives its authority from the state. Although this is itself persuasive of the presence of state action, we further note that the Pennsylvania legislature has delegated to the campus police of the University of Pittsburgh the very powers which the municipal police force of Pittsburgh possesses. Pa.Stat.Ann. tit. 71, § 646 (Purdon Supp. 1979-80).

8. Actions that would otherwise be deemed "private" may be so "impregnated with a governmental character" as to be limited by the constitutional restrictions on state action. "That is to say, when private individuals or groups are endowed by the state with powers or functions governmental in nature, they become agencies or instrumentalities of the state and subject to its constitutional limitations." Evans v. Newton, 382 U.S. 296, 299, 86 S.Ct. 486, 488, 15 L.Ed.2d 373 (1965). Therefore, the delegation of police powers, a government function, to the campus police buttresses the conclusion that the campus police act under color of state authority. For these reasons the district court's conclusion that the campus police did not satisfy the state action component to the 42 U.S.C. § 1983 claim for relief is erroneous and will be reversed.

9. In addition to alleging state action, Henderson must, in order to state a claim for relief under 42 U.S.C. § 1983, complain of the abrogation of a constitutionally protected right by the acts of the campus police. Henderson's allegations that one of the campus police officers, Foster, removed the clothes from the police evidence locker in order to prevent him from introducing them as exculpatory evidence in support of a defense of mistaken identity states a violation of constitutional rights. To deny a defendant an opportunity to present competent proof in his defense constitutes a violation of a fair trial and of due process. Clack v. Reid, 441 F.2d 801, 804 (5th Cir. 1971). Therefore, Henderson's complaint sufficiently states a cause of action against Foster under 42 U.S.C. § 1983. Henderson does not allege that the remaining two campus policemen participated in removing the evidence. He does not, therefore, complain of constitutional harm perpetrated by them. Because he fails to allege that they committed constitutional wrong, 42 U.S.C. § 1983 does not serve as a basis of liability. Therefore the district court's dismissal of the complaint against them is affirmed.

II. The Private Attorneys' Liability Under Section 1983.

10. Next we must determine whether Henderson has stated a cause of action under 42 U.S.C. § 1983 against his attorneys. Once again we must decide whether the state action requirement of 42 U.S.C. § 1983 is satisfied and determine whether the attorneys are persons who act "under color of any statute, ordinance, regulation, custom or usage of any State or Territory." 42 U.S.C. § 1983.

11. Although states license lawyers to practice, and although lawyers are deemed "officers of the court," this is...