Gagliardi v. Lee , 154 F. App'x 317 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
11-16-2005
Gagliardi v. Lee
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2655
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2005
Recommended Citation
"Gagliardi v. Lee" (2005). 2005 Decisions. Paper 221.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/221
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2005 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 05-2655
________________
JOHN GAGLIARDI,
Appellant
v.
HON. DONALD J. LEE;
HON. ROBERT J. CINDRICH;
HON. DONALD E. ZIEGLER;
HON. GARY L. LANCASTER,
District Judges, in their personal;
and official capacities
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. Civ. No. 02-cv-01126)
District Judge: Honorable A. Richard Caputo
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 14, 2005
Before: RENDELL, AMBRO and FUENTES, Circuit Judges
(Filed: November 16, 2005)
_______________________
OPINION
_______________________
PER CURIAM
John Gagliardi appeals the District Court’s order granting the defendants’ motions
to dismiss his amended complaint against four District Court judges in the Western
District of Pennsylvania. For the following reasons we will affirm.1
Of the claims Gagliardi presented in his amended complaint, only those against
Judge Cindrich arising out of his tenure as the United States Attorney for the Western
District of Pennsylvania remain.2 According to Gagliardi, Judge Cindrich took various
improper actions against him in retaliation for his whistle blower activities concerning
AT&T in the late 1970s. Gagliardi states that Cindrich met him to examine evidence of
AT&T fraud, but left without taking any of the evidence. Cindrich then dispatched an
AUSA to inspect further evidence, but he also refused to take copies of documents
offered by Gagliardi. Rather than investigate AT&T, Cindrich enlisted the assistance of
the FBI in implicating Gagliardi, along with most of the elected government of West
Mifflin Borough, in Hobbs Act violations. As part of this process, AUSA Lindsay
approved the use of electronic surveillance against Gagliardi, the FBI attempted to entrap
Gagliardi, and Gagliardi was labeled “subject of an investigation.” Gagliardi also alleges
that Cindrich conspired against him with attorneys representing AT&T for pecuniary gain
1
We have jurisdiction under 28 U.S.C. § 1291. Our review is plenary. Storey v.
Burns Intern. Sec. Servs., 390 F.3d 760 (3d Cir. 2004).
2
In his complaint, Gagliardi also sought declaratory and injunctive relief against all
four defendants. On appeal, Gagliardi agrees with the District Court that the retirement
of Judges Lee, Ziegler and Cindrich rendered his request for declaratory and injunctive
relief moot. He also drops his claims against Judge Lancaster due to Judge Lancaster’s
“practice of voluntary disqualification . . . in a subsequent action.” Br. at 2. Therefore,
we will not address those claims further.
2
and objected when the FBI’s counsel recommended that Gagliardi not be prosecuted.
Gagliardi was never indicted and maintains that he did not learn of the investigation until
2002. He seeks damages for alleged violations of his civil and constitutional rights.
The District Court granted the motion to dismiss. The Court explained that to the
extent Gagliardi complains of Cindrich’s performance of his quasi-judicial role, he enjoys
absolute immunity, but to the extent that Gagliardi complains of investigatory activities
which fall outside his quasi-judicial role, Cindrich enjoys only qualified immunity. The
Court concluded that even if Cindrich’s actions did not qualify as quasi-judicial, he has
qualified immunity because the facts alleged by Gagliardi do not describe violations of
clearly established statutory or constitutional rights.
We agree. As we explained in Forsyth v. Kleindienst, 599 F.2d 1203, 1215-1216
(3d Cir. 1979), a prosecutor is entitled to absolute immunity from suit challenging an
investigation undertaken to determine whether to initiate a criminal prosecution. The
bulk of the facts alleged by Gagliardi amount to no more than the allegation that Cindrich
conducted an investigation against Gagliardi – an investigation so unobtrusive that
Gagliardi was unaware of it until twenty years after the fact – to determine whether to
prosecute him, only to follow the advice of the FBI not to do so. This is precisely the sort
of investigation deemed protected by absolute immunity in Forsyth.
Some of Gagliardi’s other allegations, notably those concerning nefarious
conspiracies with AT&T attorneys, may fall outside the scope of absolute immunity but
3
are too vague and conclusory to survive a motion to dismiss. See Harris v. Roderick, 126
F.3d 1189, 1195 (9 th Cir. 1997) (“plaintiffs alleging a conspiracy to deprive them of their
constitutional rights must include in their complaint nonconclusory allegations containing
evidence of unlawful intent or face dismissal prior to the taking of discovery”). Because
there is no merit in Gagliardi’s remaining contentions, we will affirm the judgment of the
District Court. The motion to recuse is denied as moot.
4