APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA, D.C. Civil Action No. 75-231.
Seitz, Chief Judge, Hunter and Garth, Circuit Judges. Chief Judge Seitz, concurs.
Richard A. Sprague, former First Assistant District Attorney of Philadelphia County, appeals from the dismissal of his action for damages against F. Emmett Fitzpatrick, District Attorney of Philadelphia County. Treating the dismissal below as a summary judgment for defendant Fitzpatrick, we affirm.
The material facts are not in dispute. Fitzpatrick took office as District Attorney in 1973. Sprague, who had been First Assistant District Attorney under Fitzpatrick's predecessor, agreed to remain in that position. The First Assistant is the District Attorney's "alter ego." He assists the District Attorney in formulating policy, is primarily responsible for administration on a daily basis, keeps the District Attorney informed about the performance of the various units in the office, and acts in the District Attorney's place when the latter is unavailable. In short, the First Assistant is the District Attorney's second-in-command.
In 1974, the District Attorney's office was working on post-trial motions concerning the sentencing of Joseph Nardello. Nardello, who had a long criminal record, had been convicted of receiving stolen goods in 1969. Since 1969, Sprague and his subordinates had repeatedly sought to recommend a 2 1/2 to 5 year prison sentence for Nardello, but the argument on post-trial motions was repeatedly delayed. In July of 1974, Fitzpatrick interceded in the Nardello case. He personally appeared before Nardello's sentencing judge and recommended probation.
After it was discovered that Fitzpatrick had represented Nardello's co-defendant on a federal blackmail charge before leaving private practice, journalists began to inquire about the Nardello matter. Fitzpatrick denied responsibility for the decision to recommend probation for Nardello. Three times he attributed the recommendation to various subordinates who had worked on the case; once he referred to an agreement, supposedly worked out under his predecessor, not to recommend a jail term for Nardello.
A reporter for the Philadelphia Inquirer asked Sprague to comment on Fitzpatrick's public disclaimers. Sprague sharply disputed the truth of each. This interview was published on December 4, 1974, and on December 5, Fitzpatrick demanded Sprague's resignation. When Sprague refused, Fitzpatrick discharged him.
Sprague filed an action for damages of $500,000 against Fitzpatrick in the United States District Court for the Eastern District of Pennsylvania. He alleged that the District Attorney's decision to discharge him because of the exercise of his rights under the first and fourteenth amendments amounted to a deprivation of his constitutional rights in violation of 42 U.S.C. § 1983.*fn1 Jurisdiction was founded on 28 U.S.C. § 1343(3).*fn2
Fitzpatrick moved to dismiss. He contended under Fed. R. Civ. P. 12(b)(6) that the District Attorney was immune from suit under section 1983 and that Sprague had therefore failed to state a claim upon which relief could be granted. Under Fed. R. Civ. P. 12(b)(1), he averred that the suit was actually against the City of Philadelphia, which is not a "person" within the meaning of section 1983, and that the court therefore lacked jurisdiction over the subject matter.
On April 3, 1975, the court denied Fitzpatrick's motion and ordered him to file an answer. It also ordered both parties to file affidavits pertaining to their official relationship and the facts surrounding Sprague's discharge. They complied.
Although the record is unclear on the point, the district court apparently then decided, sua sponte, to reconsider its denial of Fitzpatrick's motion to dismiss. On July 25, 1975, the court directed the parties to appear and argue the relevance of Pickering v. Board of Education, 391 U.S. 563, 20 L. Ed. 2d 811, 88 S. Ct. 1731 (1968), to that motion. Fitzpatrick had not renewed his motion to dismiss, but the court stayed plaintiff's discovery motions pending a ruling on dismissal. Evidently, both parties considered the motion to dismiss still before the court, for no objection was raised to this procedure.
On January 9, 1976 -- nearly six months after announcing its reconsideration of the dismissal motion -- the court dismissed the complaint. It rejected Fitzpatrick's claim of prosecutorial immunity, but found that Pickering and its progeny foreclosed a finding of liability in this case. It ...