Tunnell v. Wiley

• Decision Date: 02 January 1974
• Docket Number: Civ. A. No. 73-31.
• Citation: 369 F. Supp. 1260
• Parties: Jack Burton TUNNELL v. Doris WILEY and Richard A. Sprague.
• Court: U.S. District Court — Eastern District of Pennsylvania

369 F. Supp. 1260

Jack Burton TUNNELL v. Doris WILEY and Richard A. Sprague.

Civ. A. No. 73-31.

United States District Court, E. D. Pennsylvania.

January 2, 1974.

University of Pennsylvania Law School Indigent Prisoner Litigation Program by Sherrie Raiken, Philadelphia, Pa., for plaintiff.

Morgan, Lewis & Bockius by John R. McConnell and Christian C. Day, Philadelphia, Pa., for defendant Doris Wiley.

Office of District Attorney, County of Philadelphia by Judith Dean, Philadelphia, Pa., for defendant Sprague.

OPINION AND ORDER

HIGGINBOTHAM, District Judge.

I.

Plaintiff artfully attempts to categorize for adjudication as a constitutional issue a problem which does not actually exist on the record of this case. From plaintiff's vantage he suggests that he has raised the following issue:

Does he have the right to collect civil damages under the Federal Civil Rights Act (42 U.S.C. § 1983) by reason of pretrial newspaper publicity which could purportedly deprive him of an impartial jury trial in a forthcoming criminal case where he would be a defendant?

Plaintiff attempts to cast this case as if the record establishes that the rights of freedom of the press or freedom of speech have collided with his right to a fair trial. Thus, he urges that because of the purported collision of these competing interests he is entitled to $600,000 in damages from a newspaper reporter and a First Assistant District Attorney. If here we had a factual record which established a collision of these two stellar rights (freedom of the press versus a fair trial), the problem could be more difficult for a court to make a definitive judgment as to which right should prevail in a suit for civil damages. But that hypothetical difficulty does not exist here. Factually, there has been no actual clash between these values, for plaintiff cannot establish that by reason of pretrial newspaper publicity he sustained any impediment to an impartial and fair trial. Thus, in contrast to plaintiff's categorization we have here a record like ships passing in the night without collision or even any substantial probability of colliding.

Jack Burton Tunnell contends that the article published in a Philadelphia newspaper, The Bulletin, on March 19, 1972, was the result of a civil conspiracy between defendants Doris Wiley, a Bulletin reporter, and First Assistant District Attorney for Philadelphia County, Richard A. Sprague, to deprive plaintiff of his right to a fair trial, his right to freedom of access to the Court, and his right to freedom from excessive bail, said rights being guaranteed under the Due Process Clause of the Fourteenth Amendment.

Defendants Doris Wiley and Richard A. Sprague filed Motions to Dismiss the Complaint for failure to state a claim upon which relief can be granted and alternatively motions for summary judgment. Fed.R.Civ.P. 12(b) and 56. In addition, defendant Wiley filed a motion to strike the entire complaint inasmuch as it violated certain procedural rules controlling the form of pleadings. Fed. R.Civ.P. 9(a) and 10(b).

I hold that, as a matter of law, the undisputed facts fail to establish the constitutional deprivations claimed by plaintiff in his complaint; more specifically, I find and hold that the pretrial publicity did not in any way deprive him of a fair trial in his subsequent criminal case. As to all of the issues, defendants are entitled to a motion for summary judgment, and as to some components of plaintiff's claim defendants are also entitled to a motion to dismiss.

II. FACTUAL BACKGROUND

The background of this case starts with plaintiff Tunnell having been convicted and committed to prison on November 22, 1968 on a "homicide"¹ charge for which he received a three to ten year sentence. Prior to the expiration of his minimum three year sentence he was placed into the West Philadelphia community on a "pre-release" program of the State Correctional Institution at Graterford, Pennsylvania (Graterford Prison). While on this pre-release program he was arrested for a brutal attack on two teenagers in West Philadelphia. According to the Philadelphia Bulletin article in issue, while on the pre-release program on November 3, 1971, he ". . . led the boy and girl into a vacant shed after putting a screwdriver to the girl's neck and threatening to stab her with it if either screamed or tried to run away . . . he ordered the girl to undress and forced her to tie up the boy with his belt and blindfold him with her bra. He told them he had `killed three people' and they would be the fourth and fifth. After sexually assaulting the girl, he burned her with a cigarette in both eyes, then he burned the boy's eyes and asked them both if they could see him. When they answered `yes' . . . he stabbed them both in the eyes with a screwdriver . . . he set fire to their clothing and walked out the shed."² The article further stated plaintiff's name, the location of his residence, and related his history in the program as well as his prior criminal record.

The caption of the article in the Sunday Bulletin states "Officials cite early release in parolee's attack on two youths," with a sub-heading "I burned them in the eyes so they couldn't tell the man who did this." The article further quotes First Assistant District Attorney Richard A. Sprague as saying that it was "idiotic" that Tunnell had been placed on the pre-release program and "let the legislators who passed the laws allowing this, explain it to that boy and girl." He said, "It is outrageous. When is the public going to have enough of this? How many times must people be raped, maimed, murdered . . . before the public demands a halt to it?" Because of the newspaper's publishing of this article and the Assistant District Attorney's comments, plaintiff seeks to obtain $600,000 in damages.

III. PLAINTIFF'S LEGAL THEORY

Plaintiff insists that his claim is not one for defamation and that for his cause of action under 42 U.S.C. § 1983 ". . . the test of actual malice and known falsity is therefore inapplicable." (See Plaintiff's brief, p. 9). Thus plaintiff seeks to avoid having to face in this case the reporter's and Assistant District Attorney's probable defense³ that the statements published were in fact truthful as to his sexual attack on a teenage girl and his assault, mayhem and brutality on both teenagers. Similarly, he seeks to nullify the First Amendment constitutional guarantee which precludes liability if the statement was not published with "a reckless disregard of whether it was false or not." New York Times Co. v. Sullivan, 376 U.S. 254, 276, 84 S.Ct. 710, 724, 11 L.Ed.2d 686 (1964). See, Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971).

In substance, plaintiff urges that the Assistant District Attorney's comment that Tunnell's act constituted "one of the most atrocious in the crime annals of the city" was so inflammatory that it and other comments on the facts of his case "lessens the likelihood that plaintiff could ever have the fair trial . . . he is entitled under the due process clause of the 14th Amendment." (See Plaintiff's brief, p. 3.) See, Commonwealth of Pennsylvania v. Pierce, 451 Pa. 190, 303 A.2d 209 (1973). The core of plaintiff's theory is that he is entitled to substantial damages because this publicity, even if true or privileged, could preclude him from a fair trial on the criminal charges. I need not speculate on the hypothesis as to whether the published article could have denied him a fair trial because I find that plaintiff has failed to produce any evidence that the published statements in fact precluded him from obtaining a fair trial when his criminal case was listed thirteen months later.

After the instant complaint was initiated, Tunnell was tried and convicted on May 4, 1973 on the charges for which he had been arrested sixteen months earlier. In spite of Tunnell's allegation in the present controversy his defense attorney did not request a change of venue for the criminal trial, and Tunnell has presented no evidence here to suggest that his May 4, 1973 trial was adversely affected by the newspaper publicity of March 19, 1972.

IV. ACCESS TO COURTS

Although plaintiff alleges he was denied freedom of access to the Courts,⁴ neither his complaint nor his brief alleges facts sufficiently specific to support this claim nor does his brief argue the law on this issue.

A mere allegation of constitutional deprivation without factual support will not withstand a motion to dismiss. Fletcher v. Hook, 446 F.2d 14 (3d Cir. 1971). Of course, the Court construes a pro se⁵ complaint in a light most favorable to plaintiff. Carr v. Sharp, 454 F.2d 271, 272 (3d Cir. 1972); United States ex rel. Gittlemacker v. County of Philadelphia, 413 F.2d 84 (3d Cir. 1969) cert. denied 396 U.S. 1046, 90 S.Ct. 696, 24 L.Ed.2d 691; Lockhart v. Hoenstine, 411 F.2d 455 (3d Cir. 1969) cert. denied 396 U.S. 941, 90 S.Ct. 378, 24 L.Ed.2d 244. However, even under this relaxed standard there is nothing in the circumstances related by the complaint to indicate a reasonable basis for granting relief. Negrich v. Hohn, 379 F.2d 213, 215 (3d Cir. 1967).

Therefore, plaintiff's claim against defendants is DISMISSED as to the alleged denial of free access to the courts.

V. THE BAIL ISSUE

On December 30, 1971, Tunnell was arrested and charged with assault, mayhem, and attempted murder; bail was set at $10,000 two days later on January 1, 1972.

Plaintiff alleges that he was unable to raise the $10,000 bail set on January 1, 1972, and that subsequent efforts to have the amount reduced proved unsuccessful. Plaintiff alleges he received a letter from Glenda Garcia, a representative from the Release on Recognizance Program, the agency to which plaintiff had applied for assistance in having his bail reduced, and that Miss Garcia allegedly wrote, "Your case has been widely publicized, and I have been discouraged on all administrative...