Christоpher F. DONAHUE, Appellant, v. James GAVIN; George Yatron; Michael Marino; Jeffrey Hawbecker; Paul Evanko; Richard Patton; James Girard; Gregory Pease; John Shanahan; Robert Schwarz; Berks County; First Savings Bank of Perkasie; Bell Atlantic, Inc.
No. 00-2082.
United States Court of Appeals, Third Circuit.
Argued Jan. 8, 2001. Filed Feb. 7, 2002.
280 F.3d 371
D. Michael Fisher, Attorney General of the Commonwealth of Pennsylvania, John O.J. Shellenberger (Argued), Chief Deputy Attorney General, Calvin R. Koons, Senior Deputy Attorney General, John G. Knorr, III, Chief Deputy Attorney General, Chief, Appellate Division, Office of the Attorney General, Philadelphia, PA, Attorneys for Appellees, James Girard and Gregory Pease.
Barry W. Sawtelle (Argued), Kozloff Stoudt, P.C., Reading, PA, Attorneys for Appellees, James Gavin, George Yatron and Berks County.
Before: MANSMANN, McKEE and AMBRO, Circuit Judges.
OPINION OF THE COURT
McKEE, Circuit Judge.
Christopher F. Donahue appeals the district court‘s grant of summary judgment in favor of the defendants and against Donahue in his civil rights action under
In late 1990, State Troopers Pease and Girard were the lead officers in an investigation of a marijuana distribution ring involving a Berks County resident named “Erwin Bieber.” In June of that year, Pease learned that a marijuana dealer in Albuquerque, New Mexico was regularly placing telephone calls from Albuquerque to southeastern Pennsylvania. The telephone numbers he was calling were listed to a telephone in Montgomery County and оne in Berks County. The Berks County number was assigned to a business called “Guitars East.” Erwin Bieber received mail at the address listed for that business.
Pease responded by acquiring information that included Bieber‘s telephone toll records. Meanwhile, the Albuquerque Police Department placed a pen register on the New Mexico dealer‘s telephone line.3 A pen register was also installed on the Montgomery County telephone that the New Mexico dealer was calling. Pease also learned that another telephone was registered to Bieber at the address of “Guitars East.” The Montgomery County telephone involved in calls to and from Albuquerque was also frequently being used in making calls to and from Bieber‘s telephones.
In late 1990, the Berks County District Attorney‘s Office was asked to assist in the ongoing investigation the Pennsylvania State Police were conducting into this marijuana distribution ring, and Troopers Pease and Girard informed the Berks County District Attorney‘s Office of the information they had received from the Albuquerque Police Department. Yatron was then the Berks County District Attorney and James Gavin was an Assistant District Attorney. On October 2, 1990, the State Police installed pen registers on the two telephone lines registered to Bieber and Guitars East pursuant to authorizations obtained from the Berks County Court of Common Pleas.
Yatron and Gavin eventually filed two applications with the Pennsylvania Superior Court seeking authorization to conduct non-consensual electronic surveillances on Bieber‘s two telephone lines.4 The application included an affidavit signed by Troopers Pеase and Girard. The Superior Court granted the application and entered orders authorizing interception of wire and oral communications on Bieber‘s two telephone lines.
Trooper Pacelli installed and activated monitoring equipment on Bieber‘s telephone lines pursuant to those authorizations.5 Thereafter, from October 12, to
November 17, 1990, Pease, Girard, and other Troopers working with them listened to the telephone calls to and from Bieber‘s two telephones.6 The monitored conversations included discussions between Bieber and Donahue.
State Police had not been aware of Donahue before they began monitoring Bieber‘s telephone conversations. However, once they began monitoring those calls, the State Police heard and recorded a number of conversations between Bieber and a “Christopher Donahue” residing at 1503 Callowhill Road in Perkasie, Pennsylvania.
We need not reiterate the rather involved chronology of the investigation that followed, the content of the many conversations that police recorded between Bieber and Donahue, or the results of the surveillance the police conducted while monitoring those calls. For our purposes, it is sufficient to note that the numerous discussions between Bieber and Donahue implicated both of them in a large conspiracy to distribute substantial quantities of marijuana in and around Berks County, Pennsylvania. Eventually, police learned that Bieber was receiving marijuana from sources in California and New Mexico and distributing it to several people in Pennsylvаnia, including Donahue.
On November 17, 1990, police followed Bieber to Philadelphia International Airport where he met two other men with suitcases. Police followed the trio from the airport to 1503 Callowhill Road, Donahue‘s residence. Police maintained surveillance as Bieber and his companions then drove to a trailer home owned by Steve Hartman. Police arrested the trio along with Hartman shortly after they left Hartman‘s trailer.
Bieber began to talk to the police almost immediately. He told Trooper Pease that he recently received 16 pounds of marijuana from suppliers in California and that he had delivered all 16 pounds to Donahue on November 7, 1990. Police arrested Donahue after additional investigation, and charged him with conspiracy to distribute marijuana, conspiracy to participate in a corrupt organization, and possession of marijuana with the intent to distribute. The arrest warrant for Donahue was based upon a criminal complaint that incorporated an affidavit of probable cause that Pease and Girard signed.
Donahue filed a suppression motion prior to trial. He argued that the electronic surveillance had been initiated and maintained in a manner that violated the Pennsylvania Wiretapping and Electronic Surveillance Control Act,
Bieber was one of the prosecution witnesses at that trial. He testified about his extensive drug dealings with Donahue, including the aforementioned delivery of 16 pounds of marijuana on November 7, 1990. The jury convicted Donahue of all the charges against him.
On direct appeal, the Pennsylvania Superior Court reversed and ordered a new trial. That court held that, given Bieber‘s testimony, the trial court committed reversible error in not giving a “corrupt source” jury instruction. Commonwealth v. Donahue, 428 Pa.Super. 259, 630 A.2d
In January of 1997, the Berks County Court of Common Pleas dismissed the corrupt organizations charges against Donahue based upon intervening changes in the applicable case lаw. At that point, Donahue had already spent more than two and one-half years in prison on his sentence. The Berks County District Attorney concluded that Donahue would not receive any additional incarceration if he were to be convicted in a retrial pursuant to the Superior Court‘s remand. Accordingly, the Assistant District Attorney who was then assigned to the case asked the trial court to enter a nolle prosequi (“nol pros“), thereby terminating the prosecution. The state court granted that request, and those charges that remained after the remand were dismissed.
II. DISTRICT COURT PROCEEDINGS
A. The 1995 Action.
In April of 1995, Donahue filed a two-count complaint in the district court pursuant to
The defendants moved for summary judgment or dismissal under Fed.R.Civ.P. Rule 12(b)(6), based upon the applicable statutes of limitations. The district court agreed, and entered orders dismissing the suit on January 4, 1996. Donahue did not appeal.
B. The 1998 Action.
In 1998, Donahue filed another civil action based upon the aforementioned investigation and prosecution. The complaint asserted: a
The defendants filed various motions to dismiss under Fed.R.Civ.P. 12(b)(6) and for judgment on the pleadings under Fed.R.Civ.P. 12(c). By Memoranda and Orders dated December 8, 1998 and March 12, 1999, the district court dismissed all but one claim аnd most of the defendants. See Donahue v. Gavin, 1999 WL 165700 (E.D.Pa.1999). The court held that all federal claims for unlawful search and seizure against Berks County, Yatron, Gavin, Pease and Girard were precluded both by the judgment in the 1995 action and by the applicable statutes of limitations. It also ruled that all claims under the Pennsylvania Wiretapping and Electronic Surveillance Control Act were barred by the statute of limitations.
As a result of that ruling, the only claim remaining was Count I—the
Donahue opposed the defendants’ summary judgment motions and also filed a motion to suppress all of the evidence derived from the electronic surveillance. He argued that suppression was required because the wiretap evidence was obtained in violation of Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
This appeal followed. Donahue only appeals the grant of summary judgment in favor of the State and County Defendants on the
III. DISCUSSION
A.
The essence of Donahue‘s
Donahue attempts to establish this absence of probable cause in a unique manner. He asks the court to suppress the very evidence that would be relevant to determining if the defendants had probable cause. He argues that the suppression remedy contained in Title III of the Omnibus Crime Control and Safe Streets Act of 1968,
The motion to suppress should have been ruled upon—and granted—first. The Court should not have considered the wiretap evidence in ruling on the summary judgment motions because Defendants obtained and used this material illegally.
Id. at 16.
B.
Government officials exercising discretionary functions have qualified immunity from suits seeking damages under
Where a defendant asserts a qualified immunity defense in a motion for summary judgment, the plaintiff bears the initial burden of showing that the defendant‘s conduct violated some clearly established statutory or constitutional right. Only if the plaintiff carries this initial burden must the defendant then demonstrate that no genuine issue of material fact remains as to the objective reasonableness of the defendant‘s belief in the lawfulness of his actions. This procedure eliminates the needless expenditure of money and time by one who justifiably asserts a qualified immunity defense from suit.
Id. at 399 (citations omitted, and internal quotation marks omitted)(emphasis added).
Determining whether plaintiff has alleged a violation of a statutory or constitutional right is, therefore, the threshold issue, and the Supreme Court hаs clearly instructed that we must not “assum[e], without deciding, this preliminary issue.” Siegert v. Gilley, 500 U.S. 226, 232, 111 S.Ct. 1789, 114 L.Ed.2d 277 (1991). Thus, the district court should only have considered the defendants’ claim of immunity if Donahue first established that their conduct violated a clearly established statutory or constitutional right. Wilson v. Russo, 212 F.3d at 786 (courts “should proceed to determine whether that right was clearly established at the time of the alleged violation.“). Accordingly, “we begin [our analysis] with the predicate question of whether [Donahue‘s] allegations are sufficient to establish a violation of a constitutional right at all.” Sherwood, 113 F.3d at 399 (citations and internal quotations omitted).
Prior to 1994, we allowed plaintiffs to bring malicious prosecution claims under
However, the Supreme Court‘s decision in Albright v. Oliver, 510 U.S. 266, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994), significantly changed that legal landscape. There, Albright was released on bail after surrendering on an outstanding arrest warrant. The criminal prosecution was ultimately dismissed because the charges did not constitute an offense under state law. Thereafter, Albright filed a
Chief Justice Rehnquist, writing for a plurality of four justices, noted that Albright‘s claim was “a very limited one” that did not raise procedural due process or Fourth Amendment claims. Id. at 271, 114 S.Ct. 807. The plurality then commented that “as a general matter, the Court has always been reluctant to expand the concept of substantive due process, preferring, instead, to limit substantive due process protections to matters relating to marriage, family, procreation, and the right to bodily integrity.” Id. at 271-72, 114 S.Ct. 807. Consequently, the plurality believed that Albright‘s claim “to be free from prosecution except on the basis of probable cause is markedly different from the generally recognized type of substantive due process protections” and held thаt “[w]here a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.” Id. at 272, 273, 114 S.Ct. 807.
Accordingly, the plurality held that “substantive due process, with its scarce and open-ended guideposts,” provided no relief. Id. at 275, 114 S.Ct. 807. However, while the plurality “express[ed] no view” as to whether the Fourth Amendment would provide relief to Albright, it intimated that Albright could have obtained some relief under the Fourth Amendment had he raised that issue. Id. at 274, 114 S.Ct. 807. Other members of the Court agreed. Id. at 814-817 (Ginsburg, J., concurring in judgment); id. at 281, 114 S.Ct. 807 (Kennedy, J., concurring in judgment and joined by Thomas, J.); id. at 288-89, 114 S.Ct. 807 (Souter, J., concurring in judgment).
In Gallo v. City of Philadelphia, supra, we had our first opportunity to consider Albright‘s impact upon our
Gallo was acquitted after his defense counsel vigorously cross-examined the fire marshal about the discrepancies in his report. Following his acquittal, Gallo brought a
The district court construed Gallo‘s
On Gallo‘s appeal, we noted that the Court in Albright “left open the possibility that Albright could have succeeded if he had relied on the Fourth Amendment.” 161 F.3d at 222. We then wrote that
[b]y stating that ‘the accused is not entitled to judicial oversight or review of the decision to prosecute,’ Albright implies that prosecution without probable cause is not, in and of itself, a constitutional tort. Instead, the constitutional violation is the deprivation of liberty accompanying the prosecution. Thus, . . . a plaintiff asserting a malicious prosecution claim must show some deprivation of liberty consistent with the concept of seizure.
Id. (citations and certain internal quotations omitted)(emphasis added). Continuing our analysis, we noted that because “under the common law, the tort of malicious prosecution concerns perversion of legal procedures,” Gallo was required to “show that he suffered a seizure as a consequence of a legal proceeding.” Id. We concluded that the post-indictment restrictions placed on Gallo‘s liberty constituted a seizure. Consequently, we reversed the district court and remanded for further proceedings.16 Id. at 225.
Eight days after we decided Gallo, we once again had occasion to viеw a
Officer McLaughlin arrested Torres after the officer claimed to have seen Torres selling cocaine. The next day, the district attorney issued a criminal complaint charging Torres with unlawful possession of cocaine with intent to deliver. McLaughlin was the only prosecution witness at trial. Torres testified on his own behalf, denied the charges and argued that McLaughlin should not be believed. The jury believed McLaughlin and Torres was convicted, and sentenced to three to six years in prison.
About seven and one-half months later, Torres moved for a new trial. The state
Thereafter, Torres filed a
The only issue before us was Torres’ Fourth Amendment claim, which we characterized “as a claim based on McLaughlin‘s role in initiating the prosecution by conveying false information to the prosecutor.” Torres, at 172. We stressed that “[t]he harm resulting from this action is Torres‘s incarceration after the jury found him guilty.” Id. We then inquired into whether “Torres‘s post-conviction incarceration was a Fourth Amendment seizure.” Id. at 173-74 (emphasis added). After discussing Albright and related cases, we concluded that:
the limits of Fourth Amendmеnt protection relate to the boundary between arrest and pretrial detention. At most, there may be some circumstances during pre-trial detention that implicate Fourth Amendment rights; however, we refer to the Fourth Amendment as applying to those actions which occur between arrest and pre-trial detention. See United States v. Johnstone, 107 F.3d 200, 206-07 (3d Cir.1997) (commenting that “[w]here the seizure ends and pretrial detention begins is a difficult question“). Therefore, consistent with our language in Johnstone, we conclude that post-conviction incarceration cannot be a seizure within the meaning of the Fourth Amendment, and Torres‘s incarceration did not violate his Fourth Amendment rights.
Id. at 174 (emphasis added).
It was not appropriate to inquire into qualified or absolute immunity because Torres had not alleged a Fourth Amendment violation. Id. at 174-75. Accordingly, we reversed and directed the district court to enter summary judgment in favor of McLaughlin on Torres’ Fourth Amendment claim for malicious prosecution. Id. at 175. That is precisely the situation posed by Donahue‘s
Albright, Gallo and Torres are clearly implicated here because Donahue‘s
[p]laintiff alleges in his complaint that “defendants Berks County, Yatron, Gavin, Girard, and Pease violated his right to be free of malicious prosecution . . . pursuant to thе Fourth Amendment.” Compl. ¶ 165. He seeks damages for, among other items, the two years and nine months he was incarcerated in state prison after his conviction. Id. at ¶ 174.
2000 WL 772819, *3 (emphasis added). However, damages for post-conviction injuries are not within the purview of the Fourth Amendment.
Donahue‘s brief cites neither Torres nor Gallo, and his only mention of Albright offers little support for his position in view of the holdings in those cases. He refers to Albright only by way of arguing its “doctrinal shift . . . in the law of malicious prosecution.” He argues “[b]efore Albright, malicious prosecution claims were regularly understood to be grounded in the Fourteenth Amendment Due Process Clause . . . Since Albright . . . malicious prosecution claims have been most often understood as Fourth Amendment violations.” Appellant‘s Br. at 23. However, he does not begin tо establish the required nexus between the alleged Fourth Amendment violation and the damages he alleges.
After noting that Donahue is attempting to recover for post-conviction injuries, the district court correctly stated: “[Donahue] is unable to recover damages for post-conviction incarceration based upon any alleged Fourth Amendment violation.” (citing Torres, 163 F.3d at 173–74). 2000 WL at *3. We agree. In fact, we need only substitute the names of the plaintiffs to show how neatly Donahue‘s claim is refuted under the holding in Torres. In Torres, we stated: “[t]his case, however, concerns the other end of the Fourth Amendment continuum—post-conviction incarceration. Although Fourth Amendment seizure principles may in some circumstances have implications in the period between arrest and trial, we conclude that [Donahue‘s] posttrial incarceration does not qualify as a Fourth Amendment seizure.” Torres, 163 F.3d at 174.
Donahue alleges he became
ill emotionally and physically by the defendants’ egregious misconduct—he has lost his reputation, his family, his home, his savings, and other property, the respect and confidence of the community in which he lives, his investment in his education, and his business and career (he has lost future earnings in excess of $2,000,000) and was forced to spend over 2 years and 9 months in prison only to find that he incurred debt beyond his control due to the defendants’ unlawful conduct.
Complaint at ¶ 174 (emphasis added).
Like Gallo, Donahue can establish a Fourth Amendment seizure, and he may have incurred some “injury” as a result of that seizure. However, even at this late date, he makes no attempt to distinguish between damages that may have been caused by that “seizure“, and damages that are the result of his trial, conviction and sentence. Consequently, he has not even attempted to establish the Fourth Amendment violation that is the condition precedent to establishing his malicious prosecution claim.
We realize, of course, that modern rules of pleading do not require a great deal of specificity. See Frazier v. Southeastern Pennsylvania Transportation Authority, 785 F.2d 65, 68 (3rd Cir.1986) (discussing “the specificity requirement in civil rights cases” for purposes of
Accordingly, we are constrained to hold that Donahue has not met his burden of demonstrating that the defendants’ “conduct violated some clearly established statutory or constitutional right.” Sherwood, at 399. The district court noted this defect and stated: “[s]ince I need not decide the issue, [ ] I express no view as to whether plaintiff‘s post-conviction incarceration violates some other constitutional provision, such as the procedural component of the Due Process clause[ ].” 2000 WL 772819. However, Donahue‘s § 1983 action is limited to a Fourth Amendment violation based upon malicious prosecution. We need go no further.18
However, even if we overlook this defect in Donahue‘s cause of action and assume arguendo that some unidentified (and unidentifiable) quantum of his damage claim results solely from his seizure and pretrial detention, we would still be constrained to find that he has not established the tort of malicious prosecution. “One element that must be alleged and proved in a malicious prosecution action is the termination of the prior criminal proceeding in favor of the accused.” Heck v. Humphrey, 512 U.S. 477, 484, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).19
Section 659 of the
(a) a discharge by a magistrate at a preliminary hearing, or
(b) the refusal of a grand jury to indict, or
(c) the formal abandonment of the proceedings by the public prosecutor, or
(d) the quashing of an indictment or information, or
(e) an acquittal, or
(f) a final order in favor of the accused by a trial or appellate court.”
(emphasis added).20 “The usual method by which a public prosecutor signifies the formal abandonment of criminal proceedings is by the entry of a nolle prosequi.”
In an opinion dated August 27, 1993, the Superior Court reversed the judgment of sentence and remanded for a new trial due to the failure of the . . . trial judge . . . to give a “corrupt and polluted source” charge to the jury. Upon remand for the new trial, all seized drugs which relate to the corrupt organization charges became irrelevant to the remaining charges of possession of marijuana and possession of marijuana with intent to deliver and criminal conspiracy because of a subsequent decision of the Supreme Court of Pennsylvania which required the trial court to dismiss the corrupt organization charges. Certain intercepted conversatiоns then became irrelevant because they did not pertain to the remaining charges. In addition, the defendant has already served approximately 2 years, 7 months and 23 days, and if convicted, the defendant would most likely not receive any additional jail time. Therefore, in the interest of judicial economy and to preserve scarce judicial resources, the Commonwealth of Pennsylvania, in exercising its prosecutorial discretion, requests entry of a Nolle Prosequi Order.
App. at 1308 (emphasis added).
It is clear from even a cursory reading of the request for a nol pros that the resulting dismissal can hardly be described as “indicat[ing] the innocence of the accused.” The prosecutor simply reasoned that Donahue was not likely to receive any additional jail time if convicted in a retrial, and concluded that further prosecution was therefore not an appropriate use of limited resources. Far from indicating Donahue‘s innocence, the nol pros merely reflected an informed and reasoned exercise of prosecutorial discretion as to how best to use those limited resources. It does not suggest that Donahue was innocent of the remaining criminal charges. Accordingly, there is no way that Donahue can establish the malicious prosecution that is necessary to establishing the constitutional violation he has alleged as the basis of his
IV.
For all of the above reasons, we will affirm the judgment of the district court.
Paula E. ROSSMAN, individually and for all others similarly situated, v. FLEET BANK (R.I.) NATIONAL ASSOCIATION, a nationally chаrtered bank; Fleet Bank Credit Card Services, L.P., a Rhode Island limited partnership; Fleet Credit Card Holdings, Inc., a Delaware corporation; Fleetboston Financial Corporation, a Massachusetts corporation,
Notes
“Defendants falsely stated that Pease and Girard were qualified to conduct the wiretaps, when they were not.” Id. “Pease and Girard falsely swore that all conventional investigative techniques (such as physical surveillance) had been either exhausted or were impossible to use. . . . In fact, they were had not even attempted to use any conventional investigative techniques.” Id. Donahue also claims that “Gavin played a large role in supporting and directing the investigation, . . . .” Id. at 6.
Donahue concedes that the County Defendants havе absolute immunity with regard to their actions during the judicial phase of his prosecution. However, he attempts to circumvent that immunity by alleging that they engaged in misconduct in the investigative phase. More particularly, he points to their roles in gathering evidence, his allegation that they fabricated evidence, his allegations of false swearing on an arrest warrant, his allegations of their covering up the illegal wiretaps and his allegations that they made false statements in press conferences they held. “Evidence obtained at or after the filing is likely to be connected with an existing prosecution, and is absolutely protected.” Kulwicki, 969 F.2d at 1465. However, a prosecutor is not entitled to absolute immunity when holding a press conference, or when he allegedly fabricated evidence concerning an unsolved crime. Kalina, 522 U.S. at 126.