FOGLE v. SOKOL et al

Filing 89

MEMORANDUM ORDER granting 87 the Indiana County defendants' motion to stay pending the resolution of their interlocutory appeal. Signed by Judge David S. Cercone on 6/21/19. (mwm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
LEWIS JAMES FOGLE,

)
)
Plaintiff,
)
)
v.
)
)
Pennsylvania State Police Troopers
)
JOHN SOKOL, MICHAEL STEFFEE )
DONALD BECKWITH and JOSEPH
)
STEPHEN, Corporals JOHN
)
BARDROFF and ANDREW
)
MOLLURA, and Lieutenant GLENN
)
WALP, in their individual capacities;
)
COUNTY OF INDIANA,
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PENNSYLVANIA; Indiana County
)
District Attorney GREGORY OLSON, )
in his official and individual capacity; and )
Indiana County Assistant District
)
Attorney WILLIAM MARTIN, in his
)
individual capacity,
)
)
Defendants.
)

2:17cv194
Electronic Filing

MEMORANDUM ORDER

AND NOW, this 21st day of June, 2019, upon due consideration of the Indiana County
defendants' motion to stay pending the resolution of their interlocutory appeal and the parties'
submissions in conjunction therewith, IT IS ORDERED that [87] the motion be, and the same
hereby is, granted and this action is stayed in its entirety until the United States Court of Appeals
for the Third Circuit has resolved the appeal.
The motion to stay raises compelling concerns and interests on each side that are in direct
conflict and cannot be reconciled. Neither option available to this court is a desirable one. We
are forced to choose between two virtually unacceptable outcomes.

On the one hand, the potential prejudice from the passage of additional time before
plaintiff may litigate his claims arising out of the wrongful conviction that caused him to be
incarcerated for nearly 35 years cannot be discounted. As plaintiff notes, several of the key
individuals involved in the investigation leading to his prosecution are no longer alive and the
potential for others to die or suffer further faded memories about evens that happened over 40
years ago presents a real and significant concern. There can be no doubt that from plaintiff's
perspective, each day that the case is stayed is another day that his long pursuit for justice is
deferred.1
On the other hand, the defendant prosecutors seek to maintain their asserted entitlement
to prosecutorial immunity. "More than a mere defense to liability, prosecutorial immunity
embodies the 'right not to stand trial . . . ." Odd, 538 F.3d 202, 207 (3d Cir. 2008) (citing In re
Montgomery County, 215 F.3d 367, 373 (3d Cir. 2000) (citing Mitchell v. Forsyth, 472 U.S. 511,
525 (1985)). And the remaining claims cannot be segmented in a way that would permit those
against the defendant officers to move forward without doing violence to the asserted right not to
stand trial. Plaintiff's allegations have placed the defendant prosecutors, and particularly DA
Olson, directly at the center of the fabrication of evidence claim. By permitting the case to move
forward against the defendant officers, the defendant prosecutors would be forced to participate
in the discovery or forego the ability to forge and control their own defense in the first instance.
And there is a meaningful difference between participating in litigation as a party defendant and
simply being deposed as a historical fact witness.

1

It has to be assumed that on a microscopic level the frustration for plaintiff from further
ongoing systemic delay is indicative of that sought to be memorialized by Langston Hughes in
his celebrated work entitled "Harlem." See Harlem, Montage of a Dream Deferred, Langston
Hughes, Holt 1951.
2

Given this state of affairs and the defendant prosecutors' established right to immediate
interlocutory review of this court's December 28, 2018, ruling on their defense of prosecutorial
immunity, we are forced to conclude that the least undesirable course of action is to enter the
requested stay. We urge the United States Court of Appeals for the Third Circuit to resolve the
pending appeal as expeditiously as possible.

s/David Stewart Cercone
David Stewart Cercone
Senior United States District Judge
cc:

Thomas J. Farrell, Esquire
Emma Freudenberger, Esquire
Peter Neufeld, Esquire
Vishal Agraharkar, Esquire
Peter Neufeld, Esquire
Mary Lynch Friedline, Esquire
Michael Kennedy, Esquire
Maria Milie Jones, Esquire
Maria N. Pipak, Esquire
Michael R. Lettrich, Esquire
(Via CM/ECF Electronic Mail)

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