Rose v. Bartle

Decision Date22 July 1988
Docket NumberCiv. A. No. 86-6255.
Citation692 F. Supp. 521
PartiesJoseph ROSE v. Paul BARTLE, et al.
CourtU.S. District Court — Eastern District of Pennsylvania


D. Kairys, Kairys & Rudovsky, Philadelphia, Pa., for plaintiff.

Thomas A. Brophy, Thomas K. Ellixson, Norristown, Pa., John F. Smith, III, Dilworth, Paxson, Kalish & Kauffman, Philadelphia, Pa., M.M. Killinger, Dist. Atty. Office, John G. Kaufman, Kaufman & Hughes, Norristown, Pa., Daniel J. Ryan, Douglas J. Kent, Labrum and Doak, David H. Marion, R.E. Welsh, Jr., Montgomery, McCracken, Walker & Rhoads, Gregory T. Magarity, Wolf, Block, Schorr & Solis-Cohen, J. Vincent Roche, Margolis, Edelstein, Scherlis, Sarowitz & Kraemer, Philadelphia, Pa., for defendants.


GILES, District Judge.

Plaintiff claims that criminal charges relating to "macing" instituted against him by the District Attorney of Montgomery County in November, 1983, following a recommendation of an investigating grand jury, violated his federally protected constitutional rights, state common law rights and statutory rights cognizable under the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. 1961, et seq. (RICO). Joseph Rose, formerly Chief Deputy Sheriff of the Montgomery County Sheriff's Department, has sued the former District Attorney, Joseph A. Smyth, Jr., allegedly for causing false criminal charges to be lodged against him and attempting to cause him to give false testimony before the grand jury; Bert Goodman, the Assistant District Attorney who assisted Smyth in the grand jury investigation; Oscar Vance, Chief County Detective, who also assisted Smyth in the grand jury investigation and who actually signed the document which preferred criminal charges against Rose; Paul Bartle, Chairman of the County Commission; and Robert Asher, Chairman of the Montgomery County Republican Party. Bartle and Asher are alleged to have masterminded the instigation of criminal charges against plaintiff, his boss, former Sheriff Frederick Hill, and several other top officials in the Sheriff's department, for the purpose of forcing Hill to resign his office or to fail in his attempt for reelection. Montgomery County and the County Republican Party are also sued because allegedly Montgomery County is controlled by the County Republican Party and, allegedly, Asher and Bartle control the County Republican Party.

Plaintiff alleges that the criminal charges against him resulted from a corrupt County Republican Party conspiracy and scheme to oust Hill from the Sheriff's Department and to assert control thereof by placing persons whom they controlled in high influential ranks within the department.

Jurisdiction is asserted under 42 U.S.C. § 1983 and 18 U.S.C. § 1964(c). Plaintiff claims that he was the victim of false arrest, abuse of process and malicious prosecution and his federal constitutional rights were violated thereby.

Plaintiff filed his complaint on October 27, 1986. During oral argument on defendants' motions to dismiss and to stay discovery, this court gave him leave to file an amended complaint in an attempt to bolster the pleadings, which were under challenge by defendants as insufficient. The amended complaint was filed on September 21, 1987. Defendants' motions to dismiss were renewed. Defendant Smyth answered the amended complaint attaching a copy of the 1982 Montgomery County Investigating Grand Jury's Presentment to the Honorable Louis D. Stefan, Supervising Judge, Montgomery County Court of Common Pleas. Smyth also attached a copy of Judge Stefan's Findings and Order. As a result of these attachments, this court notified the parties on January 26, 1988 that the motions to dismiss would be considered as motions for summary judgment and ordered that submissions by both sides be completed by February 26, 1988.1


Plaintiff alleges in Count I of his amended complaint that his civil rights were violated by defendants, acting under color of law. Plaintiff's claim against defendants Smyth and Goodman are dismissed because they are entitled to prosecutorial immunity. The claim is dismissed as to the remaining defendants because the statute of limitations has run. In addition, plaintiff has failed to show causation.

A. Prosecutorial Immunity

District Attorney Smyth and Assistant District Attorney Goodman are entitled to prosecutorial immunity for the activities alleged in plaintiff's amended complaint. Specifically, Rose claims that:

1. Smyth instituted grand jury proceedings without investigation and knowing Rose to be innocent of any criminal wrongdoing. Amended Complaint, ¶¶ 39-40;

2. Smyth and Goodman influenced and directed the grand jury to present false findings. Amended Complaint, ¶ 41(a);

3. Smyth and Goodman solicited and prepared perjured testimony by witnesses. Amended Complaint, ¶ 41(a);

4. Smyth and Goodman reported what happened in the grand jury proceedings to other defendants in violation of state law. Amended Complaint, ¶ 41(b);

5. Smyth and Goodman intentionally failed to call witnesses with knowledge of the events who they believed would provide exculpatory evidence for Rose. Amended Complaint ¶ 41(c);

6. Smyth and Goodman attempted to get Rose to perjure himself in the grand jury proceedings. Amended Complaint, ¶¶ 42(a)-42(d);

7. Smyth and Goodman acted solely pursuant to the instructions of defendants Robert Asher, Chairman of the Republican Party, and Paul Bartle, Chairman of the County Commission, "under the enticement of defendants' offers to benefit their political careers and the compulsion of defendants' threats to ruin their political careers." Amended Complaint, ¶¶ 42(e), 41(g).

Smyth and Goodman move for dismissal, stating that even if the complaint's allegations are taken as true, Rose has failed to state a claim on which relief can be granted. Smyth and Goodman argue that the federal civil rights violations alleged by Rose involve the exercise of Smyth's and Goodman's discretion as part of the judicial process and that their alleged actions are thus subject to absolute immunity from a civil suit for damages.

Smyth cites the case of Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976), which held that prosecutors are entitled to absolute immunity for "activities ... intimately associated with the judicial phase of the criminal process." 424 U.S. at 430, 96 S.Ct. at 995. The Court in Imbler held that, despite a prosecutor's knowing use of perjured testimony, the prosecutor's actions in initiating the prosecution, and his actions in presenting the State's case, he was immune from a civil suit for damages under § 1983. The Court rationalized absolute immunity for prosecutors on policy grounds. It noted that "if the prosecutor could be made to answer in court each time a criminal defendant charged him with wrongdoing, his energy and attention would be diverted from the pressing duty of enforcing the criminal law." 424 U.S. at 431, 96 S.Ct. at 995. Imbler left open the question of whether a prosecutor enjoys similar immunity in his role as an administrator or investigative officer. Id. at 430-431, 96 S.Ct. at 994-995.

Many courts have held that only a qualified, good faith immunity applies to a prosecutor acting in an investigative or administrative capacity. See Ross v. Meagan, 638 F.2d 646 (3d Cir.1981); Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). The third circuit held in Mancini v. Lester, 630 F.2d 990, 992 (3d Cir.1980), that "the lower federal courts must employ a functional analysis to determine whether Imbler's absolute immunity protects a prosecutor."

The court in Mancini followed its decision in Forsyth v. Kleindienst, 599 F.2d 1203, 1215 (3d Cir.1979), which had held that "to the extent that the securing of information is necessary to a prosecutor's decision to initiate a criminal prosecution, it is encompassed within the protected, quasi-judicial immunity afforded to the decision itself." 599 F.2d at 1215. Investigative acts which cannot be said to be a part of the judicial process are subject only to good faith immunity.

An examination of Smyth's and Goodman's alleged acts is required to determine whether they are (1) "intimately associated with the judicial phase of the criminal process," Imbler, 424 U.S. at 430, 96 S.Ct. at 995, or (2) investigative steps taken in an attempt to secure information necessary to determine whether to initiate a prosecution. Forsyth, 599 F.2d at 1215-1216.

1. Rose alleges that Smyth instituted grand jury proceedings without investigation and knowing Rose to be innocent of any criminal wrongdoing. Amended Complaint ¶¶ 39-40. The decision to institute grand jury proceedings and the institution of proceedings are elements of prosecutorial decisionmaking which the doctrine of absolute immunity is designed to protect. Intent and motive play no role in immunity analysis. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir.1986). Therefore, these allegations are not actionable against Smyth.

2. Rose alleges that Smyth and Goodman influenced and directed the grand jury to present false findings. Amended Complaint ¶ 41(a). The alleged action here, the presentation of a case to a grand jury, is within the prosecutor's traditional function and subject to absolute immunity under Imbler. See Maglione v. Briggs, 748 F.2d 116 (2d Cir.1984). See also, Siano v. Justices of Massachusetts, 698 F.2d 52, 57 (1st Cir.1983), cert. denied, 464 U.S. 819, 104 S.Ct. 80, 78 L.Ed.2d 91 (1983). This allegation fails to state a viable basis for liability.

3. Rose claims that Smyth and Goodman solicited and prepared perjured testimony by witnesses for use in the grand jury proceedings. Amended Complaint ¶ 41(a). Rose claims that while a prosecutor may be immune for knowing use of perjured testimony, procurement of perjured testimony by coercion is at best an investigative act and a prosecutor is thus not entitled to absolute immunity. Smyth and...

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5 cases
  • Rose v. Bartle
    • United States
    • U.S. Court of Appeals — Third Circuit
    • March 20, 1989
    ...that the then pending "motions to dismiss [filed by defendants] would be considered as motions for summary judgment." Rose v. Bartle, 692 F.Supp. 521, 524 (E.D.Pa.1988); Reed v. Bartle, No. 87-6495, slip op. at 3 (E.D.Pa. July 22, 1988); Hill v. Bartle, Nos. 86-6963, 87-3927, slip op. at 3 ......
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    ...allege injury suffered "by reason of" the use or investment of the funds derived from the racketeering activity. See Rose v. Bartle, 692 F.Supp. 521, 533 (E.D.Pa.1988); Leonard v. Shearson Lehman/American Express, Inc., 687 F.Supp. 177, 181 (E.D.Pa.1988); In re Reexplore, Inc., Securities L......
  • Cross v. Meisel
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    • U.S. District Court — Eastern District of Pennsylvania
    • September 25, 1989
    ...that he prosecuted Cross, which falls squarely under Imbler. 424 U.S. at 430-31, 96 S.Ct. at 994-96; see also, e.g., Rose v. Bartle, 692 F.Supp. 521, 526-28 (E.D.Pa.1988), aff'd in part, rev'd in part on other grounds, 871 F.2d 331 (3d Cir.1989) (similar allegations fall under Imbler). Appl......
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    • U.S. District Court — Eastern District of Pennsylvania
    • February 1, 1989
    ...more than two years before plaintiffs filed suit. The accrual of plaintiffs' § 1983 claims is governed by federal law. Rose v. Bartle, 692 F.Supp. 521, 529 (E.D.Pa.1988). A cause of action accrues under federal law "when the plaintiff becomes aware, or should have become aware, of both the ......
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