Brown v. Chardo
Filing
51
MEMORANDUM AND ORDER granting deft's motion for summary judgment 42 & directing Clrk of Ct to CLOSE case. (See order for complete details.) Signed by Honorable Christopher C. Conner on 8/13/13. (ki)
Brown v. Chardo
Doc. 51
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PATRICK BROWN,
Plaintiff,
v.
FRANCIS CHARDO,
Defendant
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CIVIL ACTION NO. 1:11-CV-0638
(Judge Conner)
MEMORANDUM
This is a civil rights action filed by plaintiff Patrick Brown (“Brown”) against
defendant Francis Chardo (“Chardo”). Brown alleges that Chardo, a Dauphin
County Chief Assistant District Attorney, violated his constitutional rights by failing
to disclose the results of a DNA report during Brown’s post conviction relief
proceedings on a burglary conviction. Presently before the court is Chardo’s
motion (Doc. 42) for summary judgment. For the reasons that follow, the court will
grant his motion.
I.
Factual Background1
In 2001, Brown was convicted in the Court of Common Pleas of Dauphin
County of burglary, criminal conspiracy, robbery, and persons not to possess
firearms. (Doc. 43 ¶ 3; Doc. 47 ¶ 3). The court sentenced Brown to 22 to 70 years
incarceration. (Id.) Chardo did not represent the Commonwealth at trial because
1
In accordance with the standard of review for a motion for summary
judgment, the court will present the facts in the light most favorable to Brown, the
nonmoving party. See infra Part III.
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he was on a temporary assignment as a Special Assistant District Attorney in York
County. (Doc. 43 ¶¶ 4, 5; Doc. 47 ¶¶ 4, 5). At the time of trial, the jury knew that
DNA recovered from a bandana allegedly worn by Brown during the crime was not
Brown’s DNA. (Doc. 43 ¶¶ 6-8; Doc. 47 ¶¶ 6-8). The jury also knew that there were
two people involved in the crime. (Doc. 43 ¶ 15; Doc. 47 ¶ 15). At trial, Brown’s
defense centered on the fact that his DNA was not on the bandana. (Doc. 43 ¶ 7;
Doc. 47 ¶ 7). Nevertheless, the jury convicted Brown on the strength of the victim’s
eyewitness testimony identifying Brown as one of the perpetrators. (Doc. 43 ¶ 18;
Doc. 47 ¶ 18).
At some point after trial but before 2006, Brown filed a pro se Post Conviction
Relief Act (“PCRA”) Petition. (Doc. 43 ¶ 19; Doc. 47 ¶ 19). Chardo represented the
Commonwealth in those proceedings. (Id.) Chardo filed a brief in opposition to the
PCRA petition on October 3, 2005. (Doc. 47 ¶ 19; Doc. 49, at 8). The next day, the
court issued a notice of intent to dismiss the action, but did not actually dismiss the
action until February 15, 2007. (Id.)
In early June 2006, Chardo received a preliminary DNA analysis report that
matched the DNA recovered from the bandana to another individual: Robert
Rickard (“Rickard”). (Doc. 43 ¶¶ 19, 26, 27; Doc. 47 ¶¶ 19, 26, 27). Chardo knew that
the statute of limitations for charging Rickard for the crime had already expired.
(Doc. 43 ¶ 25; Doc. 47 ¶ 25). Regardless, Chardo requested Detective Regis Vogel to
interview Rickard on July 19, 2006. (Doc. 43 ¶ 22; Doc. 47 ¶ 22). Rickard denied any
2
involvement in the robbery. (Doc. 43 ¶ 24; Doc. 47 ¶ 24). Detective Vogel prepared
an investigative report summarizing his findings. (Doc. 43 ¶ 23; Doc. 47 ¶ 23).
The District Attorney’s Office was undergoing renovations when Chardo
received the DNA analysis report. (Doc. 43 ¶ 28; Doc. 47 ¶ 28). At the time, the
District Attorney’s Office was operating out of a temporary office in a building
across the street from their second floor office in the courthouse. (Doc. 43 ¶ 29; Doc.
47 ¶ 29). During June and July 2006, the district attorneys would put outgoing mail
into a mail bin in the temporary office. (Doc. 43 ¶ 40; Doc. 47 ¶ 40). The outgoing
mail placed in the bin would be taken across the street to the courthouse to be
processed and mailed. (Id.)
Chardo claims that he intended to disclose the DNA analysis and the
investigative report to Brown because the reports related to his pending PCRA
petition,2 but cannot recall whether he actually mailed the reports. (Doc. 43 ¶¶ 3537, 44; Doc. 47 ¶¶ 35-37, 44). Chardo indicated to Detective Vogel that he intended
to disclose the reports to Brown. (Doc. 43 ¶ 45; Doc. 47 ¶ 45). Chardo admitted that
it was his ethical obligation, as well as his legal obligation as the prosecutor in the
PCRA proceeding, to disclose the reports. (Doc. 43 ¶¶ 20, 21; Doc. 47 ¶¶ 20, 21).
The District Attorney’s Office classified Brown’s case file as “closed” because
he had already been sentenced. (Doc. 43 ¶¶ 33, 34; Doc. 47 ¶¶ 33, 34). “Closed” files
remained in the courthouse during the renovation and were inaccessible. (Doc. 43
2
Brown disputes that Chardo actually intended to mail the reports. (Doc. 47
¶ 44).
3
¶ 30; Doc. 47 ¶ 30). During the renovation, the entire District Attorney’s Office
utilized a filing bin/tray in the temporary office for documents regarding closed
cases. (Doc. 43 ¶ 32; Doc. 47 ¶ 32). The general expectation was that anything filed
in the bin/tray would be placed in the corresponding closed case file once the
District Attorney’s Office moved back into the courthouse. (Doc. 43 ¶ 31; Doc. 47
¶ 31).3
In 2009 or 2010, Brown, with the assistance of counsel, filed another PCRA
petition pursuant to 42 Pa.C.S.A. § 9545(b)(1)(ii) based on other newly discovered
exculpatory evidence implicating Rickard. (Doc. 43 ¶ 10; Doc. 47 ¶ 10). Brown
subsequently filed a motion seeking DNA testing of Rickard. (Doc. 43 ¶ 11; Doc. 47
¶ 11). Thereafter, Chardo made a CODIS4 request for Rickard’s profile. (Doc. 43
¶ 12; Doc. 47 ¶ 12). In response, the lab sent Chardo a copy of the June 2006
preliminary DNA analysis report. (Doc. 43 ¶ 13; Doc. 47 ¶ 13). Chardo advised
Brown’s counsel of this development and Brown filed a timely amended PCRA
petition. (Doc. 43 ¶¶ 12, 51; Doc. 47 ¶¶ 12, 51). After a PCRA hearing in June, 2010,
the court granted Brown a new trial and nolle prossed the charges against him.
(Doc. 43 ¶¶ 52, 53; Doc. 47 ¶¶ 52, 53).
3
Brown denies that there was any such expectation, but does not cite to any
record evidence to establish a genuine dispute of material fact. See FED . R. CIV . P.
56(c)(1) (requiring the non-movant to establish a genuine dispute of material fact by
either “citing to particular parts of materials in the record” or “showing that the
materials cited do not establish the absence or presence of a genuine dispute.”).
4
CODIS stands for Combined DNA Index System.
4
II.
Procedural History
On April 6, 2011, Brown filed the instant civil rights action, alleging that
Chardo violated his constitutional rights by failing to timely disclose the report in
2006. (Doc. 1). On June 13, 2011, Chardo filed a motion to dismiss the complaint.
(Doc. 10). Chardo asserted, among other grounds, that the suit must be dismissed
in its entirety because he is entitled to absolute prosecutorial immunity. (Id. ¶ 21).
The court did not determine Chardo’s claim to absolute immunity at that time,
reasoning that “there is simply insufficient information at this stage to determine
whether Chardo’s conduct was prosecutorial, advocative, investigative, or
administrative.” (Doc. 23, at 14). The court encouraged Chardo to re-assert this
argument on summary judgment when the court would have the benefit of a full
evidentiary record. (Id. at 15). On other grounds, the court effectively whittled
down the lawsuit to only include Brown’s claim of false imprisonment under the
Fourth and Fourteenth Amendments of the United States Constitution.
On December 19, 2012, Chardo filed the instant motion for summary
judgment. (Doc. 42). In addition to alleging his entitlement to absolute immunity,
Chardo asserts that summary judgment is appropriate on substantive grounds
because Brown did not have a right to access the CODIS report and the report was
not exculpatory or material to his case. (Doc. 44, at 3). In the alternative, Chardo
claims he is entitled to qualified immunity. (Id.) The motion is fully briefed and
ripe for disposition.
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III.
Standard of Review
Through summary adjudication, the court may dispose of those claims that
do not present a “genuine dispute as to any material fact” and for which a jury trial
would be an empty and unnecessary formality. See FED . R. CIV . P. 56(a). The
burden of proof is upon the non-moving party to come forth with “affirmative
evidence, beyond the allegations of the pleadings,” in support of its right to relief.
Pappas v. City of Lebanon, 331 F. Supp. 2d 311, 315 (M.D. Pa. 2004); see also Celotex
Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). This evidence must be adequate, as a
matter of law, to sustain a judgment in favor of the non-moving party on the claims.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-57 (1986); Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-89 (1986). Only if this threshold
is met may the cause of action proceed. Pappas, 331 F. Supp. 2d at 315.
IV.
Discussion
The court begins its analysis with Chardo’s assertion of absolute
prosecutorial immunity. “A prosecutor bears the ‘heavy burden’ of establishing
entitlement to absolute immunity.” Odd v. Malone, 538 F.3d 202, 207 (3d Cir. 2008)
(citing Light v. Haws, 472 F.3d 74, 80-81 (3d Cir. 2007) (quoting Forsyth v.
Kleindienst, 599 F.2d 1203, 1212 (3d Cir. 1979))); see also Burns v. Reed, 500 U.S.
478, 486 (1991). The Third Circuit instructs the court to start with the presumption
that qualified, not absolute, immunity is appropriate. Odd, 538 F.3d at 207-08.
Chardo’s status as a prosecutor does not ex proprio vigore entitle him to
prosecutorial immunity. The court must focus upon the nature of the function
6
performed by the prosecutor, not the identity of the actor. See Kalina v. Fletcher,
522 U.S. 118, 127 (1997). A prosecutor is entitled to absolute immunity when he is
functioning as the state’s advocate in performing the questioned actions. Yarris v.
County of Delaware, 465 F.3d 129, 136 (3d Cir. 2006). That is, prosecutors are
absolutely immune for actions performed in a judicial or quasi-judicial role. Odd,
538 F.3d at 208; Yarris, 465 F.3d at 135; Imbler v. Pachtman, 424 U.S. 409, 430-31
(1976). Prosecutorial immunity extends to “acts undertaken by a prosecutor in
preparing for the initiation of judicial proceedings or for trial, and which occur in
the course of his role as an advocate for the State.” Buckley v. Fitzsimmons, 509
U.S. 259, 273 (1993). Allegations that the prosecutor acted willfully or in bad faith,
knowing his conduct to be unauthorized, will not strip the prosecutor of absolute
immunity unless a reasonable prosecutor would recognize the conduct as “clearly
outside his jurisdiction” in representing the state. See Ernst v. Child & Youth
Servs. of Chester Cnty., 108 F.3d 486, 502 (3d Cir. 1997) (stating that subjective state
of mind is irrelevant to absolute immunity and allegations of bad faith will not strip
a prosecutor of absolute immunity) (quoting Bauers v. Heisel, 361 F.2d 581, 591 (3d
Cir. 1966)); Imbler, 424 U.S. at 427 (admitting that prosecutorial immunity leaves
wronged defendant without civil remedy for a prosecutor’s “malicious or dishonest”
acts).
Absolute immunity does not cover administrative duties or investigatory
functions of the prosecutor not related to initiating or conducting judicial
proceedings. See Odd, 538 F.3d at 208. When the behavior of the prosecutor “falls
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completely outside the prosecutorial role,” for example, a prosecutor’s deliberate
destruction of exculpatory evidence, absolute immunity is unavailable. Giuffre v.
Bissell, 31 F.3d 1241, 1251 (3d Cir. 1994) (quoting Kulwicki v. Dawson, 969 F.2d 1454,
1463 (3d Cir. 1992)); Odd, 538 F.3d at 211; Yarris, 465 F.3d at 137 (stating that “while
deciding not to furnish the prosecution’s evidence to the defense may be an act of
advocacy, throwing the evidence away is not such an act”) (internal citations and
quotations omitted).
The court’s task in determining whether Chardo is entitled to absolute
immunity is twofold: first, the court must determine exactly what conduct forms the
basis of Brown’s cause of action against Chardo, and thereafter the court must
determine what function Chardo’s conduct served, i.e., prosecutorial, advocative,
investigative, or administrative. Schneyder v. Smith, 653 F.3d 313, 332 (3d Cir.
2011). If the conduct was advocative or prosecutorial, Chardo is entitled to absolute
immunity. If the conduct was administrative or investigative, Chardo is not
immune from suit. The prosecutorial immunity inquiry is principally fact-based
and there are no bright line rules for when absolute immunity applies. See Odd,
538 F.3d at 210 (“Following the Supreme Court’s guidance, our prosecutorial
immunity analysis focuses on the unique facts of each case and requires careful
dissection of the prosecutor’s actions.”).
A.
The Conduct
Brown’s remaining cause of action is for false imprisonment under 28 U.S.C.
§ 1983. Section 1983 claims for false imprisonment are “based on the Fourteenth
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Amendment protection against deprivations of liberty without due process of law.”
Groman v. Twp. of Manalapan, 47 F.3d 628, 636 (3d Cir. 1995). Section 1983
“creates a species of tort liability” which is governed by the applicable tort’s
elements under the common law. Heck v. Humphrey, 512 U.S. 477, 483 (1994).
Under the common law, false imprisonment consists of “arrest or restraint without
adequate legal justification.” Forgione v. United States, 202 F.2d 249, 252 (3d Cir.
1953).
Brown claims that after Chardo learned of the 2006 preliminary DNA
analysis report, Chardo knew that Brown’s continued incarceration was unlawful
but failed to remedy the situation, which resulted in Brown’s false imprisonment.
As a threshold matter, Brown alleges that none of Chardo’s actions during this time
may be immunized because Chardo was not actively prosecuting Brown’s case.
Brown also identifies the following conduct of Chardo as subject to the false
imprisonment claim: 1) failing to preserve the report or having it deliberately
destroyed; 2) failing to bring the report to the attention of Brown and the PCRA
court; and 3) failing to further investigate Rickard or take reasonable steps to
secure Brown’s release from prison after receipt of the report.5 (Doc. 1 ¶¶ 46-51;
5
Brown also discusses how Chardo is not entitled to immunity for his actions
of receiving and reviewing the preliminary DNA analysis report or instructing
Detective Vogel to interview Rickard. (Doc. 46 at 3-4). Brown’s arguments on these
grounds are unavailing and irrelevant: Brown’s lawsuit does not question Chardo’s
actions in receiving and reviewing the report or in ordering an interview; rather,
the lawsuit puts in issue Chardo’s actions after receiving the DNA analysis report
and ordering the interview. Those are the actions which the court must analyze to
determine Chardo’s entitlement to absolute immunity.
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Doc. 46 at 4-13). The court will examine whether Chardo was actively prosecuting
Brown’s case in the summer of 2006. The court will also analyze the purpose or
function of each instance of Chardo’s questioned conduct to determine whether
Chardo is entitled to absolute immunity.
B.
The Function of the Conduct
1.
Active Prosecution
Brown first claims that Chardo was not actively prosecuting Brown’s case
when Chardo first received the preliminary DNA analysis report in June, 2006.
Brown states that Chardo was instead acting in his administrative capacity as
custodian of the case file. (Doc. 46 at 1-2).
It is clearly established that absolute immunity may apply to a prosecutor’s
actions during post-conviction proceedings. See Yarris, 465 F.3d at 137 (“Absolute
immunity applies to the adversarial acts of prosecutors during post-conviction
proceedings . . . where the prosecutor is personally involved . . . and continues his
role as an advocate.”); Washam v. Stesis, 321 Fed. App’x 104, 106 & n.1 (3d Cir.
2009) (affirming dismissal of § 1983 action against prosecutor on basis that
prosecutor had absolute immunity for performance of typical prosecutorial
functions and activities, and noting that prosecutor named as defendant
represented Commonwealth in plaintiff’s PCRA proceedings); see also Wallace v.
Green, Civ. A. No. 08-CV-3239, 2010 WL 1303446, at *6 (E.D. Pa. Mar. 31, 2010)
(granting summary judgment on grounds of prosecutorial immunity to prosecutor
who opposed, on behalf of the Commonwealth, plaintiff’s PCRA petition).
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Brown does not dispute that Chardo was still the designated representative
of the Commonwealth for the PCRA proceedings in June 2006 even though Brown’s
petition was pending dismissal. (Doc. 43 ¶ 19; Doc. 47 ¶ 19). The fact that Brown’s
case file was deemed “closed” and was inaccessible at the time is irrelevant: Brown
does not dispute that the District Attorney’s Office classifies all cases as “closed”
once a defendant has been sentenced. (Doc. 43 ¶¶ 33, 34; Doc. 47 ¶¶ 33, 34).
Representing the Commonwealth in Brown’s PCRA proceedings may not have
required a significant amount of prosecutorial or advocative conduct on behalf of
Chardo by June 2006, but that does not mean it did not require any. Chardo was
still obligated to act appropriately as an advocate for the Commonwealth if any
issues potentially implicating the viability of Brown’s PCRA petition arose when it
was pending dismissal. Chardo’s conduct in June of 2006 is shielded by absolute
immunity to the extent it falls within the ambit of his prosecutorial or advocative
functions.
2.
Failure to Preserve or Deliberate Destruction
Brown alleges that Chardo is not subject to absolute prosecutorial immunity
because he failed to preserve the report or constructively destroyed it. It is correct
that the duty to preserve evidence is inherently custodial and administrative in
nature. Henderson v. Fisher, 631 F.2d 1115, 1120 (3d Cir. 1980). The deliberate
destruction of evidence is also not subject to absolute immunity. Yarris, 465 F.3d
129, 136 (3d Cir. 2006); Wilkinson v. Ellis, 484 F. Supp. 1072, 1083 (E.D. Pa. 1980).
However, the allegation that Chardo failed to preserve or destroyed the report is not
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the conduct at issue as alleged in the complaint. (See Doc. 1 ¶¶ 46-51). Nor could it
be: Brown’s alleged harm was not proximately caused by any alleged destruction or
non-preservation of the report but rather by Chardo’s alleged failure to timely
disclose the contents of the report. Indeed, the report was never actually destroyed,
as evidenced by Chardo’s disclosure several years later. (Doc. 43 ¶ 13; Doc. 47 ¶ 13).
3.
Withholding Exculpatory Evidence
Brown’s false imprisonment claim is primarily based on Chardo’s act of
withholding exculpatory evidence. Brown argues that Chardo did not make any
affirmative decision, deliberate or negligent, to withhold the evidence, and is
therefore not subject to absolute immunity. (Doc. 46 at 7-8). There is abundant
case law indicating that prosecutors are entitled to absolute immunity for the
deliberate withholding of exculpatory evidence. See Yarris, 465 F.3d at 137 (“It is
well settled that prosecutors are entitled to absolute immunity from claims based on
their failure to disclose exculpatory evidence, so long as they did so while
functioning in their prosecutorial capacity.”); see also Imbler, 424 U.S. at 431 n.34
(explaining that the “deliberate withholding of exculpatory information” is included
within the “legitimate exercise of prosecutorial discretion”); Smith v. Holtz, 210
F.3d 186, 199 n. 18 (3d Cir. 2000) (prosecutor who made decision to withhold
exculpatory evidence has absolute immunity in § 1983 action so long as decision
made while functioning in his prosecutorial capacity); Douris v. Schweiker, 229 F.
Supp. 2d 391, 411 (E.D. Pa. 2002) (stating that “withholding exculpatory evidence is
a quasi-judicial act protected by absolute immunity”). Prosecutorial immunity
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applies in this circumstance even if the prosecutor acted maliciously or in bad faith.
See Imbler, 424 U.S. at 427, 428 n. 27; Ernst, 108 F.3d at 502; Kulwicki, 969 F.2d at
1465.
The parties have not presented any cases, and the court has been unable to
find any cases, discussing the application of absolute prosecutorial immunity to an
inadvertent or accidental withholding of exculpatory evidence. Clearly, however, it
would be incongruous and illogical to grant absolute immunity when a prosecutor
intentionally or maliciously withholds exculpatory evidence, yet deny absolute
immunity when a prosecutor mistakenly or negligently withholds exculpatory
evidence. The court’s immunity inquiry must focus upon the nature of the
prosecutor’s conduct, not the subjective state of mind behind that conduct.6 Ernst,
108 F.3d at 502 (“If absolute immunity is to serve its purpose, the line between
official conduct, as to which there is immunity, and extra-official conduct, as to
which there is not, must be drawn without reference to the official’s subjective state
of mind.”). It is a close question, but the court finds that granting immunity for an
6
On the issue of Chardo’s conduct, Brown seeks to have it both ways. On one
hand, Brown argues that Chardo did not make any affirmative decision to withhold
the evidence. (Doc. 46 at 7-8). On the other hand, Brown disputes that Chardo’s
conduct was at most negligent, and concedes that mere negligence on behalf of
Chardo would be insufficient to establish a false imprisonment claim under § 1983.
(Id. at 8, 8 n.3). Instead, Brown argues that Chardo acted “intentionally,
deliberately, willfully, or with gross negligence,” thus implying that Chardo made
an affirmative decision to withhold the evidence. (Id. at 8). This argument invites
precisely the type of subjective, state of mind analysis that the court must
assiduously avoid.
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accidental or mistaken withholding is a logical derivation of the well-established
rule granting immunity for deliberate withholdings.
The court’s conclusion is undergirded by the fact that, assuming Chardo did
not make an affirmative decision to withhold the evidence, his conduct and the
result of that conduct was the same as if he had. The parties do not dispute that
Chardo had an obligation to produce the preliminary DNA analysis report because
he was the attorney for the Commonwealth in Brown’s PCRA proceeding. (Doc. 43
¶¶ 20, 21; Doc. 47 ¶¶ 20, 21). Moreover, Chardo requested Detective Vogel to
interview Rickard after receiving the report only because Rickard could potentially
provide information relating to Brown’s conviction and subsequent PCRA petition.
This is evidenced by the fact Chardo knew the statute of limitations to charge
Rickard for the crime had expired. (Doc. 43 ¶ 25; Doc. 47 ¶ 25). Importantly, the
parties agree that if the DNA analysis report had been disclosed to the PCRA court
prior to the petition’s dismissal, Brown probably would have been permitted to
amend his pending petition with the new evidence. (Doc. 49 at 8; Doc. 50 at 10).
Chardo’s withholding may be better characterized as an omission as opposed to an
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affirmative act, but that does not make his conduct any less entitled to absolute
immunity.7
4.
Failure to Conduct Further Investigation or Seek Release
Brown’s claim also criticizes Chardo’s failure to investigate further Rickard’s
role in the offense or to seek Brown’s release from prison. (See Doc. 1 ¶¶ 48, 49;
Doc. 46 at 9-10). Investigatory activity conducted in connection with an existing
prosecution is protected by absolute immunity. See, e.g., Kulwicki, 969 F.2d at 1465
(“Evidence obtained at or after the filing [of a criminal complaint] is likely to be
connected with an existing prosecution, and is absolutely protected.”). A
prosecutor’s failure to adequately investigate a defendant’s claims in a specific
criminal case is similarly protected. See, e.g., McDonald v. Illinois, 557 F.2d 596, 602
(7th Cir. 1977) (holding that two prosecutors were entitled to absolute immunity for
failing to adequately investigate the plaintiff’s version of events surrounding a
crime for which the plaintiff was convicted and later pardoned). In addition, a
prosecutor’s determination about whether to seek a convicted prisoner’s release is
part and parcel of a prosecutor’s advocative role. See, e.g., Peterson v. Bernardi,
719 F. Supp. 2d 419, 436-37 (D.N.J. 2010) (holding that a prosecutor’s decision
7
Relatedly, Brown asserts that Chardo is not entitled to absolute immunity
because his conduct could be considered criminal under 16 P.S. § 1405. Brown
cites Wilkens v. Marsico, 903 A.2d 1281 (Pa. Super Ct. 2006), but this case does not
stand for the proposition that a prosecutor is divested of absolute prosecutorial
immunity in a civil suit whenever his or her actions arguably fall under the purview
of a criminal statute. The court is unable to find any legal support for this assertion
whatsoever.
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concerning whether to consent to the dismissal of a murder conviction was
protected by absolute immunity). Chardo’s alleged failure to adequately investigate
Rickard’s role in the offense or to seek Brown’s release from prison is clearly
protected by absolute immunity.8
Brown also makes a number of arguments concerning Chardo’s actions after
receiving the report that are simply not relevant to the court’s immunity analysis
and are, at best, tangentially relevant to Brown’s underlying false imprisonment
claim. For example, Brown cites Chardo’s silence regarding the report in August of
2006 when speaking to Brown and also when speaking to a reporter. (Doc. 46 at 911, 13-14). Brown also discusses a former state case, Commonwealth v. Crawford,
which also involved Chardo’s failure to disclose exculpatory evidence.9 (Id. at 12-
8
Although not pertinent to the immunity issue, it is important to note that
the preliminary DNA analysis report did not in and of itself establish Brown’s
innocence. When Brown was convicted in 2001, the jury was well aware that the
DNA on the bandana found at the crime scene did not match Brown. (Doc. 43, ¶¶ 68; Doc. 47 ¶¶ 6-8). The jury simply did not know the source of the DNA. The jury
convicted Brown, despite knowing that the DNA on the bandana was not Brown’s,
on the strength of the victim’s eye witness testimony identifying Brown as one of
the culprits. (Doc. 43 ¶ 18; Doc. 47 ¶ 18). The jury also knew there were two
perpetrators of the crime. (Doc. 43 ¶ 15; Doc. 47 ¶ 15). The 2006 DNA report
identified the source of DNA on the bandana but did not rule out Brown as one of
the suspects of the crime. Brown’s assertion that Chardo knowingly kept an
innocent man behind bars by withholding the DNA report is inaccurate. The 2006
report simply identified the previously unidentified source of the DNA on the
bandana as Rickard.
9
The court notes that evidence of prior bad acts is not admissible at trial to
prove action in conformity therewith. See FED . R. EVID . 404(b).
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13). To the extent that Brown is using these facts to establish that Chardo’s
behavior fell completely outside his prosecutorial role, the court remains skeptical.
In sum, Chardo is absolutely immune from suit for Brown’s claim of false
imprisonment under the Fourth and Fourteenth Amendments. In light of this
determination, it is not necessary for the court to address Chardo’s substantive
arguments concerning summary judgment or his entitlement to qualified immunity.
The court recognizes that the grant of absolute prosecutorial immunity in this
instance leaves Brown without a civil remedy. See Imbler, 424 U.S. at 427. As the
Supreme Court said in Imbler, “As is so often the case, the answer must be found in
a balance between the evils inevitable in either alternative. In this instance it has
been thought in the end 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.” Imbler, 409 U.S. at 428 (quoting Gregoire v. Biddle, 177 F.2d 579, 581
(2d Cir. 1949). Chardo may have had an obligation to disclose the evidence sooner,
but under the law, his conduct is entitled to absolute prosecutorial immunity. The
motion for summary judgment will therefore be granted.
V.
Conclusion
For the above-stated reasons, the court will grant Chardo’s motion (Doc. 42)
for summary judgment. An appropriate order follows.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
Dated:
August 13, 2013
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PATRICK BROWN,
Plaintiff,
v.
FRANCIS CHARDO,
Defendant
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CIVIL ACTION NO. 1:11-CV-0638
(Judge Conner)
ORDER
AND NOW, this 13th day of August, 2013, upon consideration of the
defendant’s motion (Doc. 42) for summary judgment, and for the reasons set forth
in the accompanying memorandum, it is hereby ORDERED that:
1.
Defendant’s motion (Doc. 42) for summary judgment is GRANTED.
2.
The Clerk of the Court is directed to CLOSE this case.
S/ Christopher C. Conner
CHRISTOPHER C. CONNER
United States District Judge
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