IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

ROBERT COOK, et al.

Plaintiffs,

v.

CITY OF PHILADELPHIA, et al. 

Defendants.

Civil Action No. 04-2173

MEMORANDUM/ORDER

October 12, 2005

Currently before the Court are two motions to Dismiss the Complaint

Pursuant to Federal Rule of Civil Procedure 12(b)(6) made by defendants City of

Philadelphia, District Attorney Lynne Abraham, former District Attorney Ronald

Castille, and former Assistant District Attorney Jack McMahon (#24, 26). 

Plaintiffs Robert Cook and Marvin Spence bring this civil action for

monetary damages against defendants pursuant to 42 U.S.C. §§ 1983, 1985, and

1986. They centrally allege that the City of Philadelphia and members of the

Philadelphia District Attorney discriminated based on race and gender in jury

Case 2:04-cv-02173-LP Document 40 Filed 10/12/05 Page 1 of 7
2

selection decisions that led to the imposition of sentences of imprisonment and

death in contravention of Cook and Spence’s rights under the Fourth, Fifth,

Eighth, and Fourteenth Amendments. Plaintiffs further argue that the illegal jury

selection issues were a direct result of improper training and policies put into

effect in the Philadelphia District Attorney’s Office. Additionally, plaintiffs claim

that the District Attorney’s Office has been constitutionally deficient in failing to

monitor the jury selection process, failing to provide adequate funding for

investigation of corruption among the Assistant District Attorneys, failing to

discipline for known corruption, failing to investigate charges of biased jury

selection, and concealing exculpatory information in plaintiffs’ cases. Plaintiffs

also present claims under Pennsylvania law.

Plaintiff Cook takes exception to the prosecution of two of his cases. The

first challenge arises out of his trial and conviction in 1988 for shooting and

killing an individual in connection with a drug deal. Cook then filed two petitions

for relief under the Pennsylvania Post Conviction Relief Act ("PCRA”). Both

petitions were eventually dismissed, and Cook’s appeals were rejected. In 2003,

Cook filed a writ of habeas corpus in this court before Judge Herbert Hutton. 

Judge Hutton dismissed Cook’s petition for a writ of habeas in May 2005. See

Cook v. Beard, No. 03-5324, Docket. Second, Cook objects to a separate

Case 2:04-cv-02173-LP Document 40 Filed 10/12/05 Page 2 of 7
3

conviction before a jury – also in 1988 – for murdering an individual in

connection with a robbery. Cook’s PCRA petition was rejected for this conviction

as well, but he was granted a new penalty hearing for issues unrelated to those

now before this court. 

Plaintiff Spence takes exception to the prosecution leading to his conviction

in 1988 for murder arising out of a drug-deal relationship. Spence’s PCRA

petition was granted on March 22, 2004, and he currently is awaiting retrial. 

Discussion:

“A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) may be granted

only if, accepting all well-pleaded allegations in the complaint as true, and

drawing all reasonable factual inferences in favor of the plaintiff, it appears

beyond doubt that the plaintiff can prove no set of facts in support of the claim

that would warrant relief.” Cal. Pub. Employees’ Retirement Sys. v. Chubb Corp.,

394 F.3d 126, 143 (3d Cir. 2004). A court may only consider the allegations

contained in the complaint, exhibits attached to the complaint and matters of

public record. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998

F. 2d 1192, 1196 (3d Cir. 1993). However, a complaint’s “bald assertions” or

“legal conclusions” are not credited. Id. 

Case 2:04-cv-02173-LP Document 40 Filed 10/12/05 Page 3 of 7
4

I. Cook’s Two Convictions

Cook claims, inter alia, that both his trials were tainted by illegal racial and

gender discrimination in jury selection. Batson v. Kentucky, 476 U.S. 79 (1986),

stands for the proposition that the prosecution violates the Equal Protection Clause

of the Fourteenth Amendment when it exercises a peremptory challenge in a

racially discriminatory way. The consequence of finding a Batson violation is

vacating the conviction because a conviction cannot stand if not reached by an

“indifferently chosen” jury. See Batson, 476 U.S. at 87; see also Riley v. Taylor,

277 F.3d 261, 294 (3d Cir. 2001); Johnson v. Love, 40 F.3d 658, 668 (3d Cir.

1994). Thus, if it were demonstrated that the prosecution in Cook’s case engaged

in racial and gender discrimination in the selection of these two juries, Cook’s

convictions would have to be vacated. 

Generally, claims for monetary damages that necessarily imply the

invalidation of the underlying conviction are barred under Heck v. Humphrey, 512

U.S. 477, 486-87 (1994). In Heck, the Supreme Court held:

[I]n order to recover damages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid, a

§ 1983 plaintiff must prove that the conviction or sentence has been

reversed on direct appeal, expunged by executive order, declared

invalid by a state tribunal authorized to make such determination, or

called into question by a federal court’s issuance of a writ of habeas

Case 2:04-cv-02173-LP Document 40 Filed 10/12/05 Page 4 of 7
5

corpus, 28 U.S.C. § 2254.

Here, Cook has not shown that his first underlying conviction has been reversed,

expunged, declared invalid, or called into question. Therefore, Cook’s money

damage claims that Batson and other violations resulted in his first conviction fall

within the range of claims that would “render a conviction or sentence invalid” if

proven, and are precluded by Heck. 

Similarly, Cook’s claims of improper jury selection arising out of his second

conviction are also Heck barred. Under Pennsylvania’s PCRA, Cook has been

granted a new hearing for the penalty phase of this trial. However, in situations

where the validity of a future sentence would necessarily be compromised by

plaintiff’s civil rights action, Heck continues to apply. In Smith v. Holtz, 87 F.3d

108, 112-13 (3d Cir. 1996), the court held that “a claim that, if successful, would

necessarily imply the invalidity of a conviction on a pending criminal charge is not

cognizable under § 1983.” The basis for this decision was concern that if

plaintiffs making claims for money damages were allowed to pursue these claims

while criminal proceedings against them remained open, “there would be potential

for inconsistent determinations in the civil and criminal cases and [plaintiffs]

would be able to collaterally attack the prosecution in a civil suit.” Id. at 113. 

This principle applies to the instant case. If Cook were to prevail on his

Case 2:04-cv-02173-LP Document 40 Filed 10/12/05 Page 5 of 7
6

claims for money damages, the conviction underlying any sentence for the

robbery-murder would necessarily be invalidated. That is, no matter what future

sentence may be imposed upon Cook at his new hearing, success on his jury

discrimination claims would appear to render that sentence moot. Therefore, here,

as in Smith, Heck also bars Cook’s money damage claims insofar as they are

connected to either the underlying robbery-murder conviction or his impending

sentence. 

II. Spence’s Conviction

Defendants argue that Spence’s jury claims are also precluded by Heck. 

Unlike Cook, however, Spence has been granted a new trial to rehear the merits of

the case underlying his conviction. Therefore, as contemplated by the Heck Court,

Spence’s conviction has been “declared invalid by a state tribunal authorized to

make such determination,” and he would not be obviously barred from bringing

his money damages claims under the Heck rationale. Heck, 512 U.S. at 486-87. 

The fact of Spence’s new trial notwithstanding, Heck continues to apply

because success on Spence’s claims here would necessarily imply the invalidation

of any future conviction that results in his re-trial. In Smith, the plaintiff claimed

that various state investigators and the Pennsylvania Attorney General’s Office

had suppressed exculpatory evidence. As a result, the Court of Appeals concluded

Case 2:04-cv-02173-LP Document 40 Filed 10/12/05 Page 6 of 7
1Because Heck bars both Cook’s and Spence’s requests for relief, it is unnecessary to

reach the other arguments made by defendants in their respective motions to dismiss. 

7

that “had [the plaintiff] brought these claims before September 18, 1992, when the

Pennsylvania Supreme Court ordered the charges against him dismissed, success

on these claims would have necessarily implied the invalidity of any future

conviction on the still pending criminal charges.” 87 F.3d at 112. In Spence’s

case, the jury selection claims would not necessarily invalidate any future trial

heard by a properly impaneled jury, but, as in Smith, Spence’s claims of

conspiracy and withholding of exculpatory evidence would invalidate any possible

conviction that might arise out of the new trial. Therefore, Spence’s civil

monetary damages claims are also presently barred under Heck.

1

 

Accordingly, for the reasons stated above, it is hereby ORDERED that

defendants’ two motions to dismiss (#24, 26) are GRANTED and Cook’s and

Spence’s complaint (#16) is DISMISSED WITH PREJUDICE.

BY THE COURT:

________________________

LOUIS H. POLLAK J.

Case 2:04-cv-02173-LP Document 40 Filed 10/12/05 Page 7 of 7