MEMORANDUM
This civil rights case was commenced by plaintiff James George Douris (“Plaintiff’ or “Douris”) against the following defendants: Mark S. Schweiker, Governor of the Commonwealth of Pennsylvania (“Schweiker”); the County of Bucks (“Bucks County”); the Bucks County District Attorney’s Office (“DA’s Office”); Bucks County District Attorney Diane Gibbons, (“Gibbons”); Bucks County Assistant District Attorney Michelle A. Henry (“Henry”); Bucks County Assistant District Attorney Anne Seheetz Damon (“Damon”); and Timothy Rauch, a Bucks County police officer (“Rauch”) (collectively “Defendants”). The Complaint contains six counts alleging violations and retaliation under the First Amendment and Americans with Disabilities Act (“ADA”), 42 U.S.C § 12101 et seq., 42 U.S.C. § 1983, and the Pennsylvania Human Relations Act (“PHRA”), 48 Pa. Cons.Stat. Ann. § 951 et seq. The Complaint also alleges violations of the Pennsylvania Constitution, malicious prosecution, abuse of process, conspiracy, and a constitutionally inadequate state appeals process. Defendants all have filed Motions to Dismiss. For the reasons which follow, Defendants’ Motions will be granted in part and denied in part.
I. Background
In March 1998, Bucks County publicly posted a notice for a county park supervisor position. (PL’s Compl. ¶ 11). Plaintiff alleged that he was discriminated against when he went to the Bucks County Department of Human Resources Office to apply for the position because Bucks County allegedly failed to provide him an accommodation for his disability. Id. at ¶ 12.. Plaintiff later filed a complaint with the Equal-Employment Opportunity Commission (“EEOC”) and the Pennsylvania Human Resources Commission (“PHRC”). Id.
On May 6,1999, Plaintiff returned to the Bucks County Human Resources Office stating that he wanted to apply for a position. Com
monwealth v. Douris,
Douris was charged with harassment and prosеcuted by the Bucks County DA’s Office, represented by Gibbons and Henry. (Pl.’s Compl. ¶ 14). After a state district court justice convicted Douris of harassment, he appealed to the Court of Common Pleas, where the matter was heard
de novo,
the-receptionist and a co-worker who witnessed the incident testified, and Dour-is was again found guilty of harassment.
Douris,
Plaintiffs prior federal lawsuit resulted in a dismissal against two defendants,
Douris v. County of Bucks,
C.A. No. 99-3357,
At some point in 2001, Douris was charged with impersonating a police officer, making terrorist threats, disorderly conduct, harassment, and duty to give information and render aid. (PL’s Compl. ¶ 18). Douris alleges that during the prosecution on these charges, Defendants Bucks County, the DA’s Office, Gibbons, Damon, and Rauch destroyed and failed to provide exculpatory evidence to Douris. Id. at ¶ 19. Douris was not convicted of any of these charges. Id. at ¶ 20.
Plaintiffs Complaint contains six counts. Counts I V are brought against all Defendants, in their individual and official capacities, except Defendant Schweiker. Count VI is brought only against Defendant Schweiker. The Counts follow:
1. Retaliation in violation of the First Amendment and the ADA (Count I);
2. Violation of 42 U.S.C. § 1983 (Count II);
3. Retaliation under the Pennsylvania Human Relations Act (“PHRA”) (Count III);
4. Malicious prosecution, abuse of criminal process, and conspiracy (Count IV);
5. Violation of the Pennsylvania Constitution and conspiracy (Count V); and
6. Unconstitutionally inadequate state appeals procedure in violation of 42 U.S.C. § 1983 (Count VI).
II. Legal Standard and Jurisdiction
When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the complaint and its attachments.
Jordan v. Fox, Rothschild, O’Brien & Frankel,
This Court has jurisdiction pursuant to 28 U.S.C. § 1331, and venue is appropriate under 28 U.S.C. § 1391(b).
III. Analysis
A. Count I: Retaliation Under the ADA, First Amendment, and 42 U.S.C. § 1983
1. ADA Claim: Defendants Bucks County, DA’s Office, Gibbons, Henry, Damon, and Rauch
a. Individual Capacity
Plaintiff brings a retaliation claim under the ADA against Defendants Gibbons,
Retaliation under the ADA
1
, the claim at issue, falls under Title V, which the Third Circuit has not addressed as to individual liability. However, in considering the issue of individual liability under Title VII, the Third Circuit concluded that “Congress did not intend to hold individual employees hable under Title VII.”
Sheridan v. E.I. DuPont de Nemours & Co.,
The “consensus view among district courts in this circuit is that individuallia-bility cannot be imposed under the ADA.”
Douris v. County of Bucks,
In light of these decisions, Plaintiff’s ADA retaliation claim against Defendants Gibbons, Henry, Damon, and Rauch in their individual capacities fails as a matter of law and .will be dismissed.
The Court now considers Plaintiffs ADA retaliation claim against Defendants Bucks County and DA’s Office and Defendants Gibbons, Henry, Damon, and Rauch, in their official capacities.
Plaintiff asserts that Defendants filed and/or prosecuted criminal and traffic charges against him in retaliation for his opposition to Bucks County’s “illegal practice to discriminate against persons with a disabled [sic] by failing to provide the legally required accessibility to their facilities, and knew or should have know [sic] because Plaintiff has' filed discrimination charges against the Defendants with the Department of Justice and PA. Human Relations Commission.” (Pl.’s Compl. ¶ 22).
Defendants contend that to bring suit under the ADA, a plaintiff must exhaust his administrative remedies before the EEOC or the PHRC.
See Churchill v. Star Enterprises,
Although the EEOC was on notice of Plaintiffs complaints against Bucks County for allegedly failing to provide him an accommodation, the EEOC would not have been expected to initiate a retaliation investigation based on Plaintiffs charge.
See id.
2. First Amendment and § 1983 Claims
a. Absolute Immunity
In his Complaint, Plaintiff alleges that Defendants “filed and/or prosecuted criminal and traffic charges against the Plaintiff, withheld on these charges Brady exculpatory evidence”. (Pi’s Compl. ¶ 23). Defendants assert absolute immunity.
Prosecutors are absolutely immune for actions performed in a quasi-judicial role.
Imbler v. Pachtman,
-Plaintiff asserts that Defendants acted in an investigative or administrative capaсity and therefore are entitled only to qualified immunity. (Pl.’s Resp. to Def.’s Mot. to Dismiss 3-6). When a prosecutor serves as an administrator rather than an officer of the court, he or she is ' only entitled to qualified immunity.
Buckley v. Fitzsimmons,
In the instant case, Defendants have absolute immunity from Plaintiffs claims against them for their actions in initiating and prosecuting a criminal investigation and for their alleged improper conduct in withholding exculpatory evidence. '
b. Collateral Estoppel
The doctrine of collateral estoppel precludes a party from litigating ah issue that has already been adjudicated in a previous proceeding.
Witkowski v. Welch,
C.A. No. 92-0924,
In the-instant case, Plaintiff is collaterally estopped from pursuing any claims of retaliation over his application for the park supervisor position and the subsequent harassment charge and prosecution. Plaintiff litigated these claims in a prior action, which resulted in a jury verdict and entry of judgment for Bucks County and dismissal of the other defendants. Defendants in the instant case are in privity with Bucks County, the defendant in the prior litigation. Therefore, Plaintiff may not re-litigate these issues.
c. Res Judicata
Claim preclusion, or res judicata, “ ‘prоhibits reexamination not only of mat
In the instant case, Plaintiffs claims are barred by res judicata. Plaintiffs prior action resulted in a jury verdict in favor of Bucks County, the prior defendant with whom Defendants in the instant action are in privity, and this case arose from the same set of facts as the previous case — the application for the park supervisor position and subsequent criminal prosecution and conviction of harassment. Therefore, res judicata prevents Plaintiffs claims.
For the foregoing reasons, Count I of Plaintiffs Complaint against all Defendants will be dismissed.
B. Count II: Violation of 42 U.S.C § 1983
1. Defendants Bucks County, DA’s Office, Gibbons, Henry, and Damon
a. Individual Capacity
Count II of Plaintiffs Complaint is based on § 1983 2 viоlations allegedly committed by Defendants Gibbons, Henry, and Damon including initiating a prosecution without cause, withholding evidence, denying a fair trial, and failing to provide exculpatory evidence. PL’s (Comply 31-35). To the extent that Plaintiffs claims concern the 2001 arrest and prosecution, those claims will be dismissed because of Defendants’ absolute immunity, as discussed in Section III.A.2.a, supra. Plaintiffs claims regarding the May 1999 harassment charge and subsequent prosecution and his retaliation claims will be dismissed based on collateral estoppel and res judiciata, as discussed in Sections III.B.2.b and c, supra.
b. Official Capacity
Plaintiff also sues Defendants Gibbons, Henry and Damon under § 1983. Under § 1983, “official capacity suits ‘generally represent only another way of pleading an action against an entity of which an officer is an agent.’”
Douris,
Since Plaintiff has directly sued Bucks County and the DA’s Office under § 1983, his official capacity claims against Defendants Gibbons, Henry, and Damon are unnecessary and will be dismissed. His claims against Bucks County and the DA’s Office will not be dismissed.
2. Defendant Rauch
a. Individual Capacity
With respect to Plaintiffs charges of impersonating a police officer, making ter
The Fourth Amendment prohibits a police officer from arresting a citizen except upon probable cause, which exists “when the facts and circumstances within the arresting officer’s knowledge are sufficient in themselves to warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.”
Orsatti v. New Jersey State Police,
Plaintiff does not allege that Rauch knowingly proffered false or misleading information in the affidavit of probable cause which resulted in the criminal complaint being signed by a district justice. The affidavit contains the results of interviews with three witnesses whose testimony set forth the relevant facts underlying the criminal charges against Plaintiff. 3 (Def. Rauch’s Mot. tо Dismiss Ex. A). Rather, Plaintiff claims that Rauch knew or should have known that there “was no evidence to support the elements of 'every charge brought, and to such degree that at the preliminary hearing charges were dismissed, on a writ of habeas corpus further charges were dismissed, and no conviction resulted from any charges.” (Pl.’s Compl. ¶ 30b). ■ Plaintiffs allegations are sufficient to support a claim to be free from-arrest, detention, and prosecution under the Fourth Amendment.
i. Qualified Immunity
Having concluded that Plaintiff has stated a Fourth Amendment claim, the Court must determine if Defendant Rauch is entitled to qualified immunity, as he asserts. (Def. Rauch’s Mot. to Dismiss 6-8). Government officials performing discretionary functions are “shielded from liability for civil damages insofar as their
“Law enforcement officials who ‘reasonably but mistakenly’ conclude that their conduct comports with the requirements of the Fourth Amendment are entitled to immunity. In this way, the ‘qualified immunity standard gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.’ ”
Drawing all reasonable inferences in Plaintiffs favor, the Court concludes that the facts as alleged in the Complaint are sufficient to support a finding that no reasonable police officer could have believed that probable cause existed to support the charges against Douris. Therefore, Defendant Rauch’s Motion to Dismiss Count II in his individual capacity on the basis of qualified immunity will be denied.
b. Official Capacity
For the reasons discussed in Section IILB.l.b, supra, because Plaintiff has dirеctly sued Bucks County and the DA’s Office under § 1983, his official capacity claim against Defendant Rauch is unnecessary and will be dismissed.
C. Count III: Retaliation under the PHRA
In Count III of his Complaint, Plaintiff Alleges that Defendants’ conduct constituted unlawful retaliation in violation of the PHRA. To bring suit under the PHRA, Pennsylvania law requires that a plaintiff must exhaust his administrative remedies before maintaining an action under that act. 42 Pa. Cons.Stat. Ann. § 942(c);
Woodson v. Scott Paper Co.,
D. Count IV: Malicious Prosecution, Abuse of Criminal Process, Conspiracy
In Count IV, Plaintiff asserts claims under Pennsylvania state law for malicious prosecution, abuse of process, and conspiracy. (Pl.’s Compl. ¶¶ 43-45).
1. Defendants Bucks County and DA’s Office
As local agencies, Defendants Bucks County and DA’s Office contend,
2. Defendants Gibbons, Henry, and Damon
Plaintiff alleges that Defendants Gibbons, Henry, and Damon “conspired to withhold exculpatory evidence from Plaintiff in order to deny him his right to a fair trial and obtain a conviсtion, so as to case [sic] him to expend money, face jail time, and stop or punish him from his protected activities.” (Pl.’s Compl. ¶ 43).
Pennsylvania law provides absolute immunity that is similar to that provided by
Imbler
and its progeny.
See Durham v. McElynn,
“Absolute privilege, as its name implies, is unlimited, and exempts a high public official from all civil suits for damages arising out of false defamatory statements and even from statements or actions motivated by malice, provided the statements are made or the actions are taken in the course of the official’s duties or powers and within the scope of his authority....”
Id.
at 69 (quoting
Matson v. Margiotti,
In the instant case, Plaintiffs claims are barred by Defendants’ absolute immunity, and therefore Count IV against Defendants Gibbons, Henry, and Damon will be dismissed.
3. Defendant Rauch
a. , Malicious Prosecution
Plaintiff alleges that he was subject to malicious prosecution by Defendant Rauch. To state a claim for malicious prosecution under Pennsylvania law, a plaintiff must allege that (1) the defendant instituted the proceedings against the plaintiff, (2) without probable cause, (3) with malice, and (4) the proceedings terminated in the plaintiffs favor.
Watson v. Abington Township,
C.A. No. 01-5501,
Defendant asserts that Plaintiff has mounted an incomplete challenge to probable cause and the claim should be dismissed. (Def. Rauch’s Mot. to Dismiss 9). However, as discussed in Section III. B.2.a. n. 1,
supra,
this Court can not consider matters outside the pleadings at the 12(b)(6) stage without converting the motion to dismiss into a motion for summary judgment. Accordingly, the Court will only сonsider Plaintiffs Complaint at this
b. Abuse of Process
In order to state a claim for abuse of process, the plaintiff must allege that the defendant: (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designated, and (3) harm has been caused to the plaintiff.
Douris,
In the instant case, Plaintiff has not alleged that Defendant Rauch legitimately brought the charges against Plaintiff, and then the legal process was perverted. “There is no cause of action for abuse of process if the claimant, even with bad intentions, merely carries out the process to its authorized conclusion.”
Cameron v. Graphic Management Associates, Inc.,
c. Civil Conspiracy
Under Pennsylvania law, a complaint for civil conspiracy must allege: (1) a combination of two or more persons acting with a common purpose to do an unlawful act or to do a lawful act by unlawful means or for an unlawful purpose, (2) an overt act done in pursuit of a common purpose, and (3) actual legal damage.
McKeeman v. Corestates Bank,
Plaintiffs Complaint alleges that Rauch conspired with Defendants Gibbons, Henry, and Damon “to withhold exculpatory evidence from Plaintiff in order to deny him a fair trial and obtain a conviction, so as to case [sic] him to spend money, face jail time, and stop or punish him from his protected activities.” (Pl.’s Compl. ¶43). Plaintiff further alleges that Rauch destroyed evidence in furtherance of the conspiracy. Id. at ¶ 44. However, as to damages, Plaintiff claims that “[a]s a direct result of the conspiracy the Plaintiff was unable to present defense, impeach Commonwealth witness, present evidence favorable to him and which corroborated his claims, have a fair trial process, effective assistance of counsel, a meaningful or adequate appeal process to review his conviction, and remains convicted off [sic] harassment.” Id. at ¶ 45. These damages are a result of the May 1999 harassment prosecution and do not involve Rauch. The charges brought by Rauch were dismissed, id. at ¶ 20, and Plaintiff does not claim that he suffered damages from the alleged conspiracy between Rauch and the other Defendants. Therefore, Plaintiff does not state a claim for civil conspiracy against Defendant Rauch, and this aspect of Count IV will be dismissed.
Regarding Count IV against Defendant Rauch, Plaintiffs claims of abuse of process and civil conspiracy will be dismissed.
E, Count V: Pennsylvania Constitutional Claims and Conspiracy
In Count V, Plaintiff claims his rights were violated under the Pennsylvania Constitution. However, the Supreme Court of Pennsylvania has not ruled on the issue of whether there is a private cause of action for damages under the state constitution, and the federal courts in this 'Circuit that have considered the issue have concluded that there is no such right under the Pennsylvania Constitution.
Kelleher v. City of Reading,
C.A. No. 01-3386,
Additionally, Plaintiffs civil conspiracy claim, which is duplicative of his claim in Count IV, is barred against Defendants Bucks County and DA’s Office by the PSTCA, as discussed in Section III.D.l, supra. His civil conspiracy claim is barred against Defendants Gibbons, Henry, and Damon by their absolute immunity as discussed in Section III.D.2, supra. Plaintiffs civil conspiracy claim against Defendant Rauch will be dismissed because Plaintiff has not alleged facts sufficient to state a claim for conspiracy, as discussed in Section III.D.3c, supra.
For the reasons discussed above, Count V against all Defendants will be dismissed.
F. Count VI: Unconstitutionally Inadequate State Appeals Procedure
Count VI of Plaintiffs Complaint is brought under 42 U.S.C. § 1983 and alleges that Defendant Schweiker “fails to have an adequate or meaningful appeal process that meets federal constitutional due process requirements designed to insure against prosecutorial misconduct.” (Pl.’s Compl. ¶ 52). Plaintiff seеks money damages and a declaratory judgment that the “State appeal process [is] constitutionally inadequate.” Id. at ¶ 55:
The Eleventh Amendment bars Plaintiffs § 1983 damages claim against Schweiker in his official capacity.
4
Federal courts can not consider suits by private parties against states and their agencies unless the state has- consented to the filing of such a suit.
Atascadero State Hospital v. Scanlon,
The Commonwealth of Pennsylvania has not waived its rights under the Eleventh Amendment. “By statute Pennsylvania has specifically withheld consent [to be sued].”
Laskaris,
An essential element of any claim under § 1983 is that the alleged wrongdoing was committed by a “person.” 42 U.S.C. § 1983. “[N]either a State nor its officials acting in their official capacities are ‘persons’ under § 1983.”
Will v. Michigan Dep’t. of State Police,
Plaintiff argues that the Eleventh Amendment does not bar his damages claim against Defendant Schweiker in his official capacity because by receiving federal money, the Commonwealth of Pennsylvania has contracted away its right to Eleventh Amendment immunity. (Prae-cipe to Court of 8/21/02, at 1). In support of that proposition, Plaintiff cites
Barnes v. Gorman,
Additionally, Schweiker notes that only the Pennsylvania General Assembly has the power to make laws which affect the criminal appeals process. (Def. Schweiker’s Mot. to Dismiss 7-8). “The ‘legislative power’ in its most pristine form is the power ‘to make, alter and repeal laws.’ ”
Blackwell v. State Ethics Comm’n,
For the foregoing reasons, Plaintiffs § 1983 claim against Defendant Schweiker in his official capacity will be dismissed.
IV. Conclusion
For the reasons stated above, Defendants’ Motions to Dismiss will be granted in part and denied in part.
An appropriate Order follows.
AND NOW, this 23rd day of October, 2002, upon consideration of Plaintiffs Complaint, Defendants’ Motions to Dismiss, and responses and replies thereto, it is hereby ORDERED as follows:
1. Defendants’ Diane Gibbons, MicKelle A. Henry, and Anne Scheetz Damon’s Motion to Dismiss Counts! V is GRANTED with prejudice;
2. Defendants’ County of Bucks and Bucks County District Attorney’s Office Motion to Dismiss Counts I, III, IV, and V is GRANTED with prejudice;
3. Defendant Timothy Rauch’s Motion to Dismiss Counts I, III, and V is GRANTED with prejudice;
4. Defendant Timothy Rauch’s Motion to Dismiss Count II in his individual capacity is DENIED;
5. Defendant Timothy Rauch’s Motion to Dismiss Count IV is GRANTED with prejudice as to abuse of process and civil conspiracy and DENIED as to malicious prosecution;
6. Defendant Mark S. Schweiker’s Motion to Dismiss Count VI of Plaintiffs Complaint is GRANTED with prejudice;
7. Count II of Plaintiffs Complaint shall be answered by Defendants County of Bucks and Bucks County District Attorney’s Office and Defendant Timothy Rauch within ten days;
8. Count IV of Plaintiffs Complaint alleging malicious prosecution shall be answered by Defendant Timothy Rauch within ten days.
MEMORANDUM
Plaintiff James George Douris (“Plaintiff’ or “Douris”) commenced this civil rights case against the following defendants: Mark S. Schweiker, Governor of the Commonwealth of Pennsylvania (“Schweiker”); the County of Bucks; the Bucks County District Attorney’s Office; Bucks County District Attorney Diane Gibbons; Bucks County Assistant District Attorney Michelle A. Henry; Bucks County Assistant District Attorney Anne Scheetz Damon; and Timothy Rauch, a Bucks County police officer (collectively “Defendants”). The Complaint contains six counts alleging violations and retaliation under the First Amendment and Americans with Disabilities Act (“ADA”), 42 U.S.C § 12101 et seq., 42 U.S.C. § 1983, and the Pennsylvania Human Relations Act (“PHRA”), 43 Pa. Cons.Stat. Ann. § 951 et seq. The Complaint аlso alleges violations of the Pennsylvania Constitution, malicious prosecution, abuse of process, conspiracy, and a constitutionally inadequate state appeals process. In an October 23, 2002 .Order, the Court granted in part and denied in part Defendants’ Motions to Dismiss. Plaintiffs only remaining claims are Count II against Defendants County of Bucks, Bucks County District Attorney’s Office, and Timothy Rauch alleging violations of 42 U.S.C. § 1983, and Count IV against Defendant Rauch alleging malicious prosecution.
Presently before the Court is Plaintiffs Motion for Reconsideration, and in the Alternative, for Certification to File a Permissive Interlocutory Appeal from the Court’s October 23, 2002 Order. For the reasons which follow, Plaintiffs Motion will be denied.
I. Reconsideration Under Federal Rule of Civil Procedure 59(e)
The purpose of a motion for reconsideration is to correct manifest errors of law or fact or to present newly
Plaintiff does not demonstrate the existence of any of the three factors for reconsideration. He presents no new evidence, shows no intervening change in controlling law, and points to no clear error of law or manifest injustice.
See Drake,
II. Certification of Interlocutory Appeal Under 28 U.S.C. § 1292(b)
In general, a matter may not be appealed to a court of appeals until a final judgment has been rendered by the district judge under 28 U.S.C. § 1291. A district court is authorized to certify an order for interlocutory appeal only if it finds that: (1) the order involves a controlling question of law, (2) upon which there is substantial ground for difference of opinion, and (3) an immediate appeal may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b). The decision to certify an appeal rests within the sound discretion of the district court.
United States v. Exide Corporation,
C.A. No. 00-3057,
Plaintiff maintains that he is entitled to immediate appellate review of the following issues: (1) whether Plaintiff may challenge the constitutionality of the state appeals process, and if the governor is properly named as a defendant for that challenge; (2) whether absolute immunity is afforded to prosecutors for withholding exculpatory evidence; and (3) whether Plaintiff was estopped under the doctrines of res judicata and/or collateral estoppel from pursuing § 1983 claims against the defendant prosecutors.
A. Constitutionality of the State Appeals Process
Plaintiff seeks certification over “the issue of whether the Plaintiff could challenge the constitutionality of the Commonwealth of Pennsylvania’s appeal process as it was applied and on its face. Also, whether the Governor is the proper person to be named as defendant, and if dismissal was proper under the Eleventh Amendment.” (Pl.’s Mem. Supp. Mot. 5). In its
Count VI of Plaintiffs Complaint is brought under 42 U.S.C. § 1983 and alleges that Defendant Schweiker “fails to have an adequate or meaningful appeal process that meets federal constitutional due process requirements designed to insure against prosecutorial misconduct.” (Pl.’s Compl. ¶ 52). Plaintiff seeks money damages and a declaratory judgment that the “State appeal process [is] constitutionally inadequate.” Id. at ¶ 55.
The Eleventh Amendment bars Plaintiffs § 1983 damages claim against Schweiker in his official capacity. [ (footnote omitted) ]. Federal courts can not consider suits by private parties against states and their agencies unless the state has consented to the filing of such a suit. Atascadero State Hospital v. Scanlon,473 U.S. 234 , 241,105 S.Ct. 3142 ,87 L.Ed.2d 171 (1985); Edelman v. Jordan,415 U.S. 651 , 662,94 S.Ct. 1347 ,39 L.Ed.2d 662 (1974). This immunity extends to suits asserting civil rights violations where the state is named as a defendant. Laskaris v. Thornburgh,661 F.2d 23 , 26 (3d Cir.1981). “Under the Eleventh Amendment, a plaintiff other than the United States or a state may not sue a state in federаl court without the latter state’s consent unless Congress abrogates the state’s Eleventh Amendment immunity pursuant to a constitutional provision granting Congress that power.” Chittister v. Dep’t. of Community & Economic Dev.,226 F.3d 223 , 226 (3d Cir.2000).
The Commonwealth of Pennsylvania has not waived its rights under the Eleventh Amendment. “By statute Pennsylvania has specifically withheld consent [to be sued].” Laskaris,661 F.2d at 25 (citing Pa. Cons.Stat. Ann. § 8521(b)). Additionally, § 1983 does not abrogate the Eleventh Amendment. Quern v. Jordan,440 U.S. 332 , 345,99 S.Ct. 1139 ,59 L.Ed.2d 358 (1979). Further, the Eleventh Amendment immunizes state officials acting in their official capacity, such as Schweiker, from § 1983 damages claims by individuals. Kentucky v. Graham,473 U.S. 159 , 169,105 S.Ct. 3099 ,87 L.Ed.2d 114 (1985).
An essential element of any claim under § 1983 is that the alleged wrongdoing was committed by a “person.” 42 U.S.C. § 1983. “[N]either a State nor its officials acting in their official capacities are ‘persons’ under § 1983.” Will v. Michigan Dep’t. of State Police,491 U.S. 58 , 71,109 S.Ct. 2304 ,105 L.Ed.2d 45 (1989).
Plaintiff argues that the Eleventh Amendment does not bar his damages claim against Defendant Schweiker in his' official capacity because by receiving federal money, the Commonwealth of Pennsylvania has contracted away its right tо Eleventh Amendment immunity. (Praecipe to Court of 8/21/02, at 1). In support of that proposition, Plaintiff cites Barnes v. Gorman,536 U.S. 181 ,122 S.Ct. 2097 ,153 L.Ed.2d 230 (2002) and South Dakota v. Dole,483 U.S. 203 ,107 S.Ct. 2793 ,97 L.Ed.2d 171 (1987). However, both of these cases are unavailing to Plaintiff. Barnes was brought under § 202 of the ADA and § 504 of the Rehabilitation Act and held that a remedy is appropriate under Spending Clause legislation if the funding recipient is on notice that it is subject not only to those remedies provided in the relevant legislation but also to remedies usually available in breach of contract suits. 536 U.S. at ---,122 S.Ct. at 2101-02 . Dole held that a federal statute conditioning a state’s receipt of highway funds on that state’s adoption of a minimum drinking age was a valid use of Congress’ spending power. 483 U.S. at 208-09 . Neither case involved a § 1988 claim, and as discussed above, Congress has not abrogated the Eleventh Amendment immunity of the states.
Additionally, Schweiker notes that only the Pennsylvania General Assembly has the power to make laws which affect the criminal appeals process. (Def. Schweiker’s Mot. to Dismiss 7-8). “The ‘legislative power’ in its most pristine form is the power ‘to make, alter and repeal laws.’ ” Blackwell v. State Ethics Comm’n,523 Pa. 347 ,567 A.2d 630 , 636 (Pa.1990) (citations omitted); Pa. Const, art. I, § 1. The Pennsylvania Supreme Court has the exclusive power to establish rules of procedure for Commonwealth’s judicial system. Commonwealth v. Brown,447 Pa.Super. 454 ,669 A.2d 984 , 988 (Pa.Super.1995) (citing Pa.Const. art. V, § 10(c)). Even if the Governor did not have sovereign immunity under the Eleventh Amendment, Plaintiff still has not stated a claim against him because it is the General Assembly and/or the Pennsylvania Supreme Court, not the Governor, which has the power to change the state’s criminal appeals process.
For the foregoing reasons, Plaintiffs § 1983 claim against Defendant Schweiker in his official capacity will be dismissed.
Douris v. Schweiker,
Plaintiffs brief in support of his Motion does not point out any legal error in the above analysis.
B. Absolute Immunity
Plaintiff also seeks certification of whether prosecutors are entitled to absolute immunity for withholding exculpatory evidence, an action that he maintains is an administrativе function. (Pl.’s Mem; Supp. Mot; 4). The Court’s October 23, 2002 Memorandum and Order amply supported its conclusion that the defendant prosecutors are entitled to absolute immunity for their quasi-judicial actions at issue in this case:
In his Complaint, Plaintiff alleges that Defendants “filed and/or prosecuted criminal and traffic charges against the Plaintiff, withheld on these charges Brady exculpatory evidence.” (PL’s Compl. ¶ 23). Defendants assert absolute immunity.
Prosecutors are absolutely immune for actions performed in a quasi-judicial role. Imbler v. Pachtman,424 U.S. 409 , 431,96 S.Ct. 984 ,47 L.Ed.2d 128 (1976); Kulwicki v. Dawson,969 F.2d 1454 , 1463 (3d Cir.1992). Absolute immunity is afforded to prosecutors for acts “intimately associated with the judicial phase of the criminal process” such as initiating and prosecuting a criminal case. Imbler,424 U.S. at 430-31 . In Imbler, the Supreme Court noted numerous public policy considerations for granting absolute immunity to prosecutors from § 1983 claims stemming from their actions as prosecutors: (1) a prosecutor’s exercise of independent judgment wоuld be compromised if he or she were threatened with suits for damages for actions in initiating criminal cases; (2) the prosecutor’s energies would be diverted from his or her official duties if forced to defend against § 1983 actions; (3) a post-trial decision in favor of the accused might result in a § 1983 action against the prosecutor for alleged errors or mistakes in judgment.424 U.S. at 425-27 .
Plaintiff asserts that Defendants acted in an investigative or administrative ca-parity and therefore are entitled only to qualified immunity. (Pl.’s Resp. to Def.’s Mot. to Dismiss 3-6). When a prosecutor serves as an administrator rather than an officer of the court, he or she is only entitled to qualified immunity. Buckley v. Fitzsimmons, 509 U.S. 259 , 273,113 S.Ct. 2606 ,125 L.Ed.2d 209 (1993). However, prosecutors are absolutely immune in § 1983 actions for their decisions to prosecute, and withholding exculpatory evidence is a quasi-judicial act protected by absolute immunity. Hull v. Mallon, C.A. No. 00-5698,2001 WL 964109 ,2001 U.S. Dist. LEXIS 12755 , at *5 (E.D.Pa. Aug. 21, 2001). See also Parker v. Stiles, C.A. No. 00-5335,2001 WL 755094 ,2001 U.S. Dist. LEXIS 9085 , at *3-5 (E.D. Pa. June 29, 2001); Barnes v. City of Coatesville, C.A. No. 93-1444,1993 WL 259329 ,1993 U.S. Dist. LEXIS 9112 , at *22-24 (E.D. Pa. June 28, 1993).
In the instant case, Defendants have absolute immunity from Plaintiffs claims against them for their aсtions in initiating and prosecuting a criminal investigation and for their alleged improper conduct in withholding exculpatory evidence.
Plaintiffs brief in support of his Motion does not point out any legal error in the above analysis.
C. Res Judicata and/or Collateral Es-toppel
Finally, Plaintiff contends certification is necessary to determine if res judicata and/or collateral estoppel estopped Plaintiff from pursuing his § 1983 claims against the defendant prosecutors. The Court addressed this issue in its October 23, 2002 Memorandum and Order:
The doctrine of collateral estoppel precludes a party from litigating an issue that has already been adjudicated in a previous proceeding. Witkowski v. Welch, C.A. No. 92-0924,1997 WL 181253 ,1997 U.S. Dist. LEXIS 4788 , at *7 (E.D.Pa. Apr. 14, 1997), aff'd,173 F.3d 192 (3d Cir.1999). Four elements must be met for collateral estoppel to apply: (1) the issue decided in the prior adjudication must be identical to the one presented in the later action; (2) there must have been a final judgment on the merits; (3) the party against whom collateral estoppel is being asserted must have been a party or in privity with a party to the prior adjudication; (4) the party against whom collateral estoppel is being asserted must have had a full and fair opportunity to litigate the issue in question in the prior action. Id. at *7 (citing Schroeder v. Acceleration Life Ins. Co.,972 F.2d 41 , 45 (3d Cir.1992); Bradley v. Pittsburgh Bd. of Educ.,913 F.2d 1064 , 1073 (3d Cir.1990)).
In the instant case, Plaintiff is collaterally estopped from pursuing any claims of retaliation over his application for the park supervisor position and the subsequent harassment charge and prosecution. Plaintiff litigated these claims in a prior action, which resulted in a jury verdict and entry of judgment for Bucks County and dismissal of the other defendants.
Defendants in the instant case are in privity with Bucks County, the defendant in the prior litigation. Therefore, Plaintiff may not relitigate these issues.
c. Res Judicata
Claim preclusion, or res judicata, “ ‘prohibits reexamination not only of matters actually decided in the prior case, but also those that the parties might have, but did not assert in that action.’ ” Williams v. Lehigh County Dep’t. of Corrections,19 F.Supp.2d 409 , 411 (E.D.Pa.1998) (quoting Edmundson v. Borough of Kennett Square,4 F.3d 186 ,189 (3d Cir.1993)). Res judicata requires the following three factors: (1) a final judgment on the merits in a prior suit involving (2) the same parties or those in privity with them, and (3) a subsequent suit based on the same cause of action. Id. at 411.
In the instant case, Plaintiffs claims are barred by res judicata. Plaintiffs prior action resulted in a jury verdict in favor of Bucks County, the prior defendant with whom Defendants in the instant action are in privity, and this case arose from the same set of facts as the previous case — the application for the park supervisor position and subsequent criminal prosecution and conviction of harassment. Therefore, res judicata prevents Plaintiffs claims.
Douris v. Schweiker,
Plaintiffs brief in support of his Motion does not point out any legal error in the above analysis.
All three of the requirements under § 1292(b) must be met in order for a court to grant certification for appeal.
See Piazza v. Major League Baseball,
IV. Conclusion
For the reasons stated above, Plaintiffs Motion for Reconsideration, and in the Alternative, for Certification to File a Permissive Interlocutory Appeal from this Court’s October 23, 2002 Order will be denied.
An appropriate Order follows.
ORDER
AND NOW, this 22nd day of November, 2002, upon consideration of Plaintiffs Motion for Reconsideration, and in the Alternative, for Certification to File a Permissive Interlocutory Appeal from this Court’s October 23, 2002 Order (Doc. 30), and opposition thereto, it is hereby
ORDERED that Plaintiffs Motion is DENIED.
It is further ORDERED that Plaintiffs Motion to Amend (Doc. 17) is DENIED AS MOOT. 1
Notes
. Section 503(a) of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12203(a) provides:
"No person shall discriminate against any individual because such individual has opposed any act or practice made unlawful by this Act or because such individual made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this Act.” ■
. 42 U.S.C. § 1983 provides in pertinent part:
"Every person whо, under color of any statute, ordinance, regulation, custom, or usage, of any State or territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress ...”
. With the exception of “documents] integral to or explicitly relied upon in the complaint”,
In re Burlington Coat Factory Securities Litigation,
. The Eleventh Amendment states:
"The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted .against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
. Under Fed.R.Civ.P. 15(a), a “party may amend its pleading once as a matter of course at any time before a responsive pleading is served.” When Plaintiff filed his Motion to Amend, only a motion to dismiss, but not a responsive pleading, had been filed. Therefore, Plaintiff was free to amend his Complaint without the Court's permission, but apparently chose not to do so.