Appeal from a judgment of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Chief Judge, summarily dismissing complaint under 42 U.S.C. § 1983 on ground that plaintiff could not show prejudice caused by pretrial publicity.
Kaufman and Kearse, Circuit Judges, and Mishler, District Judge.*fn*
In this, his second, appeal to this Court in this matter, plaintiff Arthur B. Powers appeals from a final judgment of the United States District Court for the District of Connecticut, T.F. Gilroy Daly, Chief Judge, summarily dismissing his complaint brought under 42 U.S.C. § 1983 (1982), against defendants Austin J. McGuigan, Chief Attorney for the State of Connecticut, and Glenn E. Coe, McGuigan's former chief trial counsel, for various relief on account of defendants' alleged bad faith prosecution of Powers, former Commissioner of the State of Connecticut Department of Transportation ("CDOT"), on charges of corruption. On Powers's first appeal, challenging a judgment dismissing his complaint for failure to state a claim upon which relief could be granted, this Court reversed in part, ruling that Powers was entitled to attempt to show that his constitutional right to a fair trial in the criminal prosecution had been violated by alleged news leaks by the defendants. Powers v. Coe, 728 F.2d 97 (2d Cir. 1984) (" Powers I "). Following the remand in Powers I, further proceedings were held, culminating in the court's granting a motion by the defendants for summary judgment dismissing the complaint on the ground that, regardless of any alleged conduct of the defendants, Powers could not show that such conduct caused him to be deprived of a fair trial. On this appeal, Powers contends that summary judgment was foreclosed by our decision in Powers I and that he was improperly precluded from conducting discovery needed to oppose defendants' summary judgment motion. Finding no merit in Powers's arguments, we affirm.
The background of this action is set out in detail in Powers I, familiarity with which is assumed, and will be briefly summarized here. In 1981, McGuigan began an investigation into charges of corruption in CDOT, of which Powers was then Commissioner. After one of Powers's appearances before the one-person grand jury that had been convened to look into the charges, McGuigan agreed that if Powers resigned from his office he would not be prosecuted, provided that no evidence was subsequently uncovered showing that Powers had engaged in serious felonious conduct in the performance of his duties. Powers resigned.
Thereafter, Powers had several telephone conversations with one Joseph Hirsch, a prospective witness of the grand jury who was a contractor who did business with CDOT. Hirsch was a close friend of Powers and godfather to one of Powers's children; he had consented to a wiretap on his calls to Powers. As a result of these conversations, Powers was arrested on state charges of attempted obstruction of justice. Both the Connecticut press and the electronic media had carried reports on the entire Powers matter from the beginning.
On the day before his criminal trial was to begin in state court, Powers commenced the present federal action, seeking an injunction against the prosecution, along with declaratory and monetary relief, on the theory, inter alia, that the defendants had deliberately leaked to the press information about the CDOT investigation. Powers asserted that the publicity had made it impossible for him to have a fair trial on the criminal charges. The district court denied Powers an injunction, see Younger v. Harris, 401 U.S. 37, 27 L. Ed. 2d 669, 91 S. Ct. 746 (1971), and the criminal trial began as scheduled. Three weeks later, Powers pleaded guilty to two misdemeanor counts pursuant to a plea bargain under which the other charges against him were dismissed.
Shortly after the entry of Powers's guilty plea, the district court dismissed his complaint in the present action on the ground that it failed to state a claim upon which relief could be granted. Although we agreed with the court's conclusions as to most of the claims asserted, we reversed insofar as the complaint alleged that defendants had deprived him of a fair trial by systematically leaking to the press information relating to their investigation. We ruled that Powers was entitled to have an opportunity to prove that claim, and we remanded for further proceedings.
In making our ruling, we outlined certain factors that Powers would have to prove in order to prevail on the surviving claim. In addition to showing that there were leaks that were unnecessary in scope, nature, and number, we stated that Powers would have to show that he had "' in fact been denied [his] due process rights.' Martin v. Merola, 532 F.2d [191,] 194 [(2d Cir. 1976) (per curiam)] (emphasis added)." 728 F.2d at 105. Finally, we pointed out that
the showing that must be made involves more than a showing that there were improper leaks and that there was deprivation of a fair trial. While there need not be a showing that the defendant(s) herein knew that the leaks would tend to cause such a deprivation or intentionally gave them to the media, . . . there must be a showing that other remedies were not available, or were used to no avail, to alleviate the effects of the leaks, e.g., a thorough voir dire, utilization of challenges both peremptory and for cause, a motion to disqualify a biased judge (we do not suggest that there was such in this case), a motion to change venue, or the like. In other words, there must be a showing of causation; if Powers was deprived of a fair trial he has to show that such deprivation was not "too remote a consequence" of the improper leaks to the press.
Id. at 105 (citations omitted). We ended our discussion of this claim by stating that "anything we have said, of course does not foreclose, on ...