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April 17, 1986

EUGENE GOLD, et al., Defendants

The opinion of the court was delivered by: NEAHER


NEAHER, District Judge

 These consolidated civil rights actions have a common origin in a homicide which occurred in June 1976 in an automobile parked near the corner of Myrtle and Flatbush Avenues in Brooklyn. Plaintiff was eventually convicted of second degree murder and other offenses related to this incident in four separate trials. The convictions after two trials were reserved on appeal, one conviction was overturned upon the granting of a motion for a new trial, and the conviction and sentence imposed after the fourth trial were affirmed by the New York Court of Appeals. People v. Gilmore, 66 N.Y. 2d 863, 498 N.Y.S.2d 752, 489 N.E.2d 721 (1985) (memorandum).

 The instant pro se complaints relate to the earlier prosecutions, i.e., two proceedings which resulted in new trials; consequently, nothing stated herein affects the merits of any subsequent habeas corpus petition which may challenge the validity of plaintiff's current conviction. Nevertheless, as explained below, the doctrinal developments concerning cases brought pursuant to 42 U.S.C. § 1983 require dismissal of the instant complaints.

 The Court of Appeals for the Second Circuit affirmed in part and vacated in part this Court's original dismissal of the entire complaint in 77 CV 852 and ordered this Court to retain jurisdiction until plaintiff had exhausted his state remedies. Thereafter, this Court consolidated 77 CV 852 with the newly filed 77 CV 1306 and ordered that service of process against the remaining defendants, Gold, Speiser, and Nevins, await completion of the state court proceedings. Neither this Court nor the Court of Appeals could have anticipated the multiple proceedings which followed in the state courts, and which, upon the New York Court of Appeals' decision, have now resulted in the exhaustion of state remedies. Hence, the Court turns to the merits of the complaint in light of decisions subsequent to the Circuit Court of Appeals' order, entered June 23, 1977, concerning the collateral consequences of plaintiff's conviction in a § 1983 suit. *fn1"

 The action of the Circuit Court of Appeals allowed plaintiff to proceed in forma pauperis against Gold (then Kings County District Attorney), Speiser (an Assistant District Attorney), and Nevins (an investigator in the District Attorney's office) on a claim for damages pursuant to 42 U.S.C. § 1983. Although the alleged activities of these defendants are recited in the first, second, third and fourth causes of action in the complaint, it actually charges but one conspiracy. The second cause of action charges Gold, Speiser, and Nevins with conspiring to procure plaintiff's false and fraudulent conviction for murder by having employed the perjury of witness Bobby Glover. According to the complaint, Glover, a past paid informant, testified that plaintiff, while in the holding pen in the Brooklyn courthouse, had asked Glover, in the presence of another inmate, Rodger Lee, to eliminate the prosecution's witnesses. While there was no discussion of price, plaintiff had added that Glover would be taken care of afterwards. Glover also opined that the victims had been shot in connection with plaintiff's status as a drug dealer. In the third cause of action plaintiff reasons that because Glover was incapable of creating the perjury himself, he must have been "coached" by Nevins. Logically, therefore, plaintiff accuses Nevins of suborning Glover's perjury. In the fourth cause of action, plaintiff transforms the subornation of perjury claim into a claim that Gold and his assistant, Speiser, knowingly used Glover's perjury at the trial. In essence, plaintiff's claims amount to a single conspiracy to suborn perjury from witness Glover, which produced the intended result of a conviction.

 Although as a witness, Glover is absolutely immune from § 1983 liability for testifying falsely, Briscoe v. LaHue, 460 U.S. 325, 75 L. Ed. 2d 96 a, 103 S. Ct. 1108 (1983), allegations of a conspiracy between an allegedly perjurious witness and the prosecutor state a claim for relief under § 1983. San Filippo v. United States Trust Co. of New York, Inc., 737 F.2d 246, 255 (2d Cir. 1984); Duncan v. Fowler, 569 F. Supp. 692, 693 (W.D. N. Car. 1983), aff'd, 735 F.2d 1354 (4th Cir. 1984); see Stevens v. Brown, 564 F. Supp. 368, 370 (W.D.N. Car. 1983). This observation merely overcomes any claim that the prosecutor accused of being party to a conspiracy to suborn perjury should enjoy absolute immunity rather than qualified immunity under Imbler v. Pachtman, 424 U.S. 409, 47 L. Ed. 2d 128, 96 S. Ct. 984 (1976).

 However, in distinguishing Briscoe in San Filippo, the Circuit Court of Appeals appears to have overlooked the following passage:

"There is, of course, the possibility that, despite the truth-finding safeguards of the judicial process, some defendants might indeed be unjustly convicted on the basis of knowingly false testimony by police officers [or any other witness]. The absolute immunity for prosecutors recognized in Imbler bars one possible avenue of redress for such defendants."

 460 U.S. at 345 (emphasis added and footnote omitted). That observation by the Supreme Court implies that a prosecutor, facing a complaint that he conspired with a witness to present false testimony does have absolute immunity from a § 1983 suit for damages under Imbler, supra. Cf. Malley v. Briggs, 106 S.C.t 1092, 1097 (1986) ("We have interpreted § 1983 to give absolute immunity to functions 'intimately associated with the judicial phase of the criminal process,' Imbler, supra, at 430 (emphasis added), not from an exaggerated esteem for those who perform these functions, and certainly not from a desire to shield abuses of office, but because any lesser degree of immunity could impair the judicial process itself. Briscoe v. LaHue, 460 U.S. 325, 334-335, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983)."). Despite that indication from the Supreme Court, this Court is constrained to follow the authority of the Court of Appeals for this Circuit. That the instant complaint would, however, survive a motion to dismiss addressed solely to the face of the pleading does not preclude dismissal on the basis of defense which appears on the face of the record and derives from the collateral consequences of plaintiff's last conviction.

 In Allen v. McCurry, 449 U.S. 90, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980), the Supreme Court recognized that determinations and judgments rendered upon matters in issue in state criminal proceedings may have collateral effect in a subsequent civil suit brought under 42 U.S.C. § 1983. The Court expanded upon this concept in Haring v. Prosise, 462 U.S. 306, 103 S. Ct. 2368, 76 L. Ed. 2d 595 (1983), which concerned a claim that Virginia police officers had searched the accused's apartment without probable cause and had seized materials used to manufacture a controlled substance. In disposing of the officers' contention that the accused's (plaintiff's) guilty plea to one count of manufacturing a controlled substance collaterally estopped his § 1983 suit, the Court stated,

"We begin by reviewing the principles governing our determination whether a § 1983 claimant will be collaterally estopped from litigating an issue on the basis of a prior state- court judgment. Section 28 U.S.C. § 1738 generally requires 'federal courts to give preclusive effect to state-court judgments whenever the courts of the State from which the judgments emerged would do so.' In federal actions including § 1983 actions, a state-court judgment will not be given collateral estoppel effect, however, where 'the party against whom an earlier court decision is asserted did not have a full and fair opportunity to litigate the claim or issue decided by the first court.' Moreover, additional exceptions to collateral estoppel may be warranted in § 1983 actions in light of the 'understanding of § 1983' that the federal courts could step in where the state courts were unable or unwilling to protect federal rights.'
"The threshold question is whether under the rules of collateral estoppel applied by the Virginia courts, the judgment of conviction based upon Prosise's guilty plea would foreclose him in a later civil action from challenging the ...

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