The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MICHAEL WHITE : CIVIL ACTION
:
v. :
:
CITY OF PHILADELPHIA, et al. : NO. 23-4538
MEMORANDUM
Bartle, J. March 11, 2024
Plaintiff Michael White was released from custody
after his state convictions for second degree murder, robbery,
and conspiracy were vacated on December 29, 2022 by this court
as a result of plaintiff’s motion under 28 U.S.C. § 2254. White
v. Vaughn, Civ. A. No. 94-6598, 2022 WL 17993129 (E.D. Pa. Dec.
29, 2022) (Doc. # 94). White has now sued under 42 U.S.C.
§ 1983 the City of Philadelphia, the estate of Lawrence Gerrard,
the estate of Francis Miller, the estate of William Shelton, and
former Philadelphia Assistant District Attorney Frank DeSimone,
who prosecuted him.1 Before this court is the motion of DeSimone
to dismiss this action as to him under Rule 12(b)(6) of the
Federal Rules of Civil Procedure on the ground of absolute
immunity.
1. White avers that DeSimone deprived him of due process and a
fair trial by deliberately deceiving the court through
suppression of evidence (Count I), engaged in a civil rights
conspiracy by suppressing his medical records and the criminal
histories of the Commonwealth’s witness and the victim of the
homicide (Count III), and failed to intervene on White’s behalf
to prevent his wrongful conviction (Count IV).
I
The court, at this stage, accepts as true the
disturbing account of events recited in the complaint. Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). The court may
also consider undisputed facts outside the complaint including
“matters of public record.” Pension Benefit Guar. Corp. v.
White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)
(citing 5A Charles Allen Wright & Arthur R. Miller, Federal
Practice and Procedure § 1357 (2d ed. 1990)).
In early January 1977, White accompanied an individual
named Eughinia Jones to Taylor’s Variety Store at 20th and
Jefferson Streets in North Philadelphia. Jones sought to
collect a debt owed to him by Georgell “Yock” Lewis, one of the
owners of the store. Jones also owed White money, and White
wanted to ensure that Jones paid him after Lewis repaid Jones.
Unbeknownst to White, Jones was carrying a firearm. While at
the store, Jones shot and killed Lewis after an argument.
Carmella Sprowal, a store employee, was on the premises at the
time. Both Jones and White were arrested later that day.
During his interrogation, White was severely beaten by
detectives Gerrard and Miller and was forced to sign a
confession. White was then transferred to the Philadelphia
County Prison where he received needed immediate medical
attention. Defense counsel’s later request for the medical
records was to no avail. The records could never be located.
White’s defense counsel before trial also requested
that DeSimone produce the prior criminal records of Sprowal, the
key prosecution witness at White’s trial, and of Lewis, the
victim of the homicide. Defense counsel further sought
information about drug activity at Taylor’s Variety Store. In
response, DeSimone lied that he had no such information and that
Sprowal was not a defendant in another case. It also turned out
that Lewis, the victim, had at least five arrests for possession
and sale of drugs, two of which arrests had occurred at the
variety store. During one of these arrests, he was found with
178 packets of heroin.
This information was relevant to White’s defense that
Jones killed Lewis over a dispute involving drugs. At the trial
Sprowal testified that neither she nor anyone else sold drugs at
the store. Sprowal later filed an affidavit that DeSimone told
her not to mention anything about drugs while testifying at
White’s trial. White was convicted of second degree murder,
robbery, and conspiracy in the Court of Common Pleas of
Philadelphia County and sentenced to life imprisonment.
Some seventeen years later, Judge Armand Della Porta,
who had presided over White’s trial, granted him a new trial
after an evidentiary hearing in which Judge Della Porta found
that DeSimone had failed to produce the requested exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).
The Superior Court, however, reversed Judge Della Porta’s order
not on the merits but on the ground that White had waived his
claim concerning the nondisclosure of Lewis’s arrest record for
failure to raise the issue on direct appeal. This decision did
not disturb Judge Della Porta’s factual finding that DeSimone
had mispresented and failed to disclose Lewis’s arrest record.
The matter did not rest there. In December 2022, my
colleague Judge John R. Padova granted White relief under 28
U.S.C. § 2254. In a prior order scheduling an evidentiary
hearing, Judge Padova found that although White had procedurally
defaulted on the claim that DeSimone failed to produce the
requested Brady material, the Third Circuit’s decisions in
Dennis v. Secretary, Pennsylvania Department of Corrections, 834
F.3d 263 (3d Cir. 2016) (en banc), and Bracey v. Superintendent
Rockview SCI, 986 F.3d 274 (2021), constituted a relevant change
in material law. White v. Vaughn, Civ. A No. 94-6598, 2022 WL
4080760, at *6 (E.D. Pa. Sept. 6, 2022) (Doc. # 77). These
decisions established that the duty to provide Brady material
rests on the prosecution and White did not have a duty to
“ferret out” such material himself. Id. Consequently, White
was still eligible for habeas relief provided he showed cause
and prejudice for his failure to raise his Brady claim on direct
appeal.
Judge Padova found that such cause and prejudice
existed to excuse White’s default. He found that prejudice
existed based on Judge Della Porta’s factual finding that the
prosecution’s failure to disclose Lewis’s arrest record had
denied White a fair trial. White, 2022 WL 17993129, at *5.
Judge Della Porta had found that the lack of any arrest records
for Lewis not only required White’s counsel to abandon the
defense that the shooting occurred over a drug dispute unrelated
to White but also denied White the opportunity to adequately
cross-examine Sprowal. Id. Judge Padova ordered the
Commonwealth to retry him within 180 days or release him from
custody. Id. To avoid a trial, White pleaded guilty to third
degree murder and was sentenced to time served. This lawsuit
followed.
II
As noted above, DeSimone argues that the action must
be dismissed as to him on the ground that, as a prosecutor, he
is absolutely immune from suit under the facts alleged here.
The seminal and controlling precedent on this issue is the
Supreme Court’s decision in Imbler v. Pachtman, 424 U.S. 409
(1976). There, plaintiff Paul Imbler had been indicted and
convicted of felony murder in a California state court. Id. at
411-12. He was sentenced to death. Id. In a federal habeas
corpus proceeding, the district court found that the prosecutor
had made “culpable use . . . of misleading or false testimony”
and had suppressed material evidence favorable to Imbler. Id.
at 414-15. Imbler was released from custody.
Thereafter, Imbler sued the prosecutor for damages
under 42 U.S.C. § 1983. The Supreme Court held that the
prosecutor was immune from liability as a prosecutor enjoys
absolute immunity “when he acts within the scope of his
prosecutorial duties.” Id. at 420, 430.
The Supreme Court explained:
The prosecutor’s possible knowledge of a
witness’ falsehoods, the materiality of
evidence not revealed to the defense, the
propriety of a closing argument, and
ultimately in every case the likelihood that
prosecutorial misconduct so infected a trial
as to deny due process, are typical of
issues with which judges struggle in actions
for post-trial relief, sometimes to
differing conclusions. . . . Defending
these decisions, often years after they were
made, could impose unique and intolerable
burdens upon a prosecutor responsible
annually for hundreds of indictments and
trials.
Id. at 425-26 (emphasis added).
The Supreme Court recognized while the “genuinely
wronged defendant” is left without a civil remedy, professional
discipline as well as criminal sanctions are available against a
miscreant prosecutor. Id. at 427. It concluded that in the
context of a civil suit, it is “better to leave unredressed the
wrongs done by dishonest officers than to subject those who try
to do their duty to the constant dread of retaliation.” Id. at
428 (quoting Gregoire v. Biddle, 177 F.2d 579, 581 (2d Cir.
1949)).
The Court cautioned that it was not granting absolute
immunity for all acts of a prosecutor. A prosecutor is
protected when he or she undertakes actions within the
prosecutorial function, sometimes called the quasi-judicial
function. The prosecutor is not immunized from a civil suit
when he or she acts in an administrative or investigative
capacity. As subsequent cases demonstrate, it is not always
easy to discern where those lines are to be drawn. See, e.g.,
Van de Kamp v. Goldstein, 555 U.S. 335, 343-48 (2009); Schneyder
v. Smith, 653 F.3d 313, 331-32 (3d Cir. 2011).
Here, DeSimone suppressed material evidence about the
drug activity of Sprowal and Lewis and at Taylor’s Variety Store
where Jones killed Lewis. He dissembled to the defense attorney
that such evidence did not exist and told Sprowal, the key
Commonwealth witness, to say nothing about drug activity. This
all occurred in the context of trying White for murder.
DeSimone clearly violated Brady.
The wrongdoing of DeSimone alleged here and confirmed
in the findings of Judge Della Porta and Judge Padova fits
squarely within the facts and reasoning of Imbler, where the
Supreme Court held that the prosecutor was functioning within
his prosecutorial capacity and was therefore entitled to
absolute immunity. In Imbler, the prosecutor suppressed
material evidence at the trial favorable to Imbler. Here
DeSimone suppressed material evidence at the trial favorable to
White.
Accordingly, the motion of DeSimone to dismiss this
action on the basis of absolute immunity will be granted.