                                                                                                                           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Precedential or Non-Precedential: Non-Precedential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




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Recommended Citation
"Gagliardi v. Lee" (2005). 2005 Decisions. Paper 221.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/221


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                                                           NOT PRECEDENTIAL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.




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