1

 The claims against the other named Defendants are not pertinent to the discussion

herein.

1

 IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

WARREN DURHAM, JR. )

Plaintiff, )

v. ) C.A. No. 04-297Erie

) District Judge McLaughlin

CITY AND COUNTY OF ERIE, et al., ) Magistrate Judge Baxter

Defendants. )

MEMORANDUM ORDER

Procedural History

Plaintiff’s complaint was received by the Clerk of Court on October 6, 2004, and was

referred to United States Magistrate Judge Susan Paradise Baxter for report and

recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1), and Rules

72.1.3 and 72.1.4 of the Local Rules for Magistrates.

Plaintiff alleges that his constitutional rights were violated by Defendants. Named as

Defendants in this case are: the City of Erie, Pennsylvania, the County of Erie, Pennsylvania,

Christopher McElynn, an Assitant District Attorney, Bruce Tackett, a forensic scientist, Officers

Patrick Durkin and James Washburn of the Erie City Police and Judge Fred Anthony. Plaintiff

claims that Defendant County of Erie failed to train or supervise its police officers and allowed

an unreasonable search by them and that Defendant McElynn violated his constitutional right by

concealing exculpatory evidence, introducing fasle evidence, obtaining false statements,

selecting a biased jury, and making defamatory statements. Plaintiff also makes a state law

claim of malicious prosecution against Defendant McElynn.1 As relief, Plaintiff seeks monetary

damages.

By Report and Recommendation filed November 30, 2005, the Magistrate Judge

recommended that the motion to dismiss filed by Defendants McElynn and County of Erie be

granted. The Report and Recommendation concluded that: 1) Defendant McElynn was entitled

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to absolute immunity as a prosecutor and 2) that Defendant County of Erie should be dismissed

because it is protected by sovereign immunity and the County does not have any supervisory

authority over the City’s police officers. The Magistrate Judge further opined that this Court

should not exercise its discretion to retain supplemental jurisdiction over the state tort claim of

malicious prosecution. Document # 22. 

Plaintiff filed Objections to the Report and Recommendation. In his Objections,

Plaintiff argues the Defendant McElynn is not absolutely immune under Buckley v.

Fitzsimmons, 509 U.S. 259 (1993). Plaintiff further argues that Defendant County of Erie

engaged in a policy of failing to supervise or train its police officers and is therefore liable. 

Document # 23. Defendants have filed a response to the Plaintiff’s Objections. Document # 25.

De Novo Review

1. Prosecutorial Immunity

In his complaint, Plaintiff makes the following allegations against Defendant McElynn:

26. Defendant, Christopher McElynn, acted indifferent to Plaintiff’s

constitutional rights when allowing the prosecutrix in his criminal case to

extort monies from Plaintiff’s family. That said malicious action was

ignored to assure favorable testimony against Plaintiff.

27. Defendant, McElynn, did cause the Plaintiff to be maliciously prosecuted

when concealing and/or destroying exculpatory evidence.

28. Defendant, McElynn, violated Plaintiff’s right to a fair trial when

obtaining false statements from Defendants, Tackett, Washburn and

Durkin.

29. Defendant McElynn, did violate Plaintiff’s right to a fair trial when

selecting a biased jury, despite an affirmative response of biasness from

jurors.

30. Defendant McElynn, acted with deliberate indifference to the risks that

his subordinates would introduce false evidence at the Plaintiff’s criminal

trial.

31. Defendant McElynn, has established a policy and custom in his office of

using false evidence during Plaintiff’s trial, which violated Plaintiff’s

right to a fair trial. That his malicious acts were for a purpose other than

brining Plaintiff to justice.

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 This Court will not exercise supplemental jurisdiction over the state law claims. See

United Mine Workers of America v. Gibbs, 383 U.S. 715 (1966) (“That power [of supplemental

jurisdiction] need not be exercised in every case in which it is found to exist. It has consistently

been recognized that pendent [or supplemental] jurisdiction is a doctrine of discretion, not of

plaintiff's right. ... Certainly, if the federal claims are dismissed before trial, ... the state claims

should be dismissed as well.”).

3

 As discussed in the Report and Recommendation, all Plaintiff’s other claims against

Defendant McElynn are barred by prosecutorial immunity.

3

32. Defendant McElynn, did make false and defamatory statements against

Plaintiff in the local Erie newspaper. That such statements represented to

the public that the Plaintiff was mentally imbalanced and morally corrupt.

Document # 1, Complaint. Plaintiff also raises a state tort claim of malicious prosecution

against Defendant McElynn.2

Plaintiff’s assertion in his Objections that Defendant McElynn’s allegedly defamatory

comments against him are not protected by absolute immunity under Buckley is facially correct.

3

 In Buckley, the Supreme Court held that with respect to defamation claims, the commission of

slander during a press conference by a district attorney is not entitled to absolute immunity. 509

U.S. at 277 (“Comments to the media have no functional tie to the judicial process just because

they are made by a prosecutor.”). Importantly for our analysis in this case, the Third Circuit has

further held that while such defamation could be actionable per se as a matter of state law, it

was not actionable under the federal Constitution (the due process clause of the 14th

Amendment) unless the plaintiff can establish an injury to reputation substantial enough to

produce a loss of liberty or property. See Jerrytone v. Musto, 2006 WL 162656, at * 4 (3d Cir.

January 23, 2006) (Plaintiff “failed to allege any injury to liberty or property, a required

component of an actionable defamation claim under § 1983.”); Graham v. City of Philadelphia,

402 F.3d 139, 142 n.2 (3d Cir. 2005) ( “[A] plaintiff must show a stigma to his reputation plus

some concomitant infringement of a protected right or interest” in order to bring a claim under

the Due Process Clause); Ersek v. Township of Springfield, 102 F.3d 79, 83 n.5 (3d Cir. 1996)

(“It is clear that to make out a claim for a violation of a liberty interest in reputation a plaintiff

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 A review of the newspaper articles attached to Plaintiff’s complaint reveals that

Defendant McElynn’s statements were made following Plaintiff’s conviction and so therefore

could not serve as the cause of Plaintiff’s loss of liberty.

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must show a stigma to his reputation plus some concomitant infringement of a protected right or

interest. This element is now commonly termed the ‘reputation plus’ or ‘stigma-plus’

requirement.”).

So, in other words, in order for Plaintiff to raise a federal constitutional claim for

defamation against Defendant McElynn, he must allege that he suffered more than merely injury

to his reputation. Plaintiff has not met this burden as he has only alleged that McElynn’s

statements “represented ... that Plaintiff was mentally imbalanced and morally corrupt.” 

Document # 1, Complaint, ¶ 32. Plaintiff has not alleged that he suffered an injury to his

reputation so severe as to produce a loss of liberty or property.4 The allegations, when viewed in

the light most favorable to Plaintiff as the non-movant, are that Defendant McElynn made some

allegedly untrue and derogatory statements about Plaintiff’s character. Plaintiff’s claim is

“nothing more than a state defamation action masquerading as a Section 1983 claim” (Garner v.

Township of Wrightstown, 819 F.Supp. 435, 442 (E.D. Pa. 1993)) and should be dismissed in

this regard as he has failed to state a claim upon which relief may be granted.

2. Defendant County of Erie

In Opposition to the Report and Recommendation, Plaintiff argues that the County

should be held liable because it had an official policy which resulted in the allegedly

unconstitutional conduct of its police officers. Plaintiff misunderstands the Report and

Recommendation on this point. The County of Erie and the City of Erie are two separate and

distinct governmental organizations. The County of Erie is not the employer and has no control

over the City’s police department or its officers and so, therefore, may not be liable for their

actions.

The Report and Recommendation is adopted fully on this point.

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Conclusion

AND NOW, this 16th day of March, 2006;

Following a de novo review of the pleadings in this case, 

IT IS HEREBY ORDERED that the Report and Recommendation by Magistrate Judge

Baxter be adopted in part and rejected in part as the opinion of this Court. Plaintiff’s allegations

of defamation against Defendant McElynn are dismissed for failure to state a claim rather than

on the basis of prosecutorial immunity; the Report and Recommendation is adopted as the

opinion of this Court in all other regards. Defendants McElynn and County of Erie are hereby

dismissed from this case.

S/ Sean J. McLaughlin 

SEAN J. MCLAUGHLIN

UNITED STATES DISTRICT JUDGE

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