Maris, Seitz and Stahl, Circuit Judges. Maris, Circuit Judge (concurring in part and dissenting in part).
This is an appeal from an order dismissing a civil rights complaint.
Appellant, according to his brief, was convicted by a jury of conspiracy to commit burglary, burglary and larceny in a Pennsylvania state court. He brought this suit for damages, pro se, under the Civil Rights Act, 42 U.S.C. §§ 1983, 1985, against the District Attorney of Montgomery County and three law enforcement officers, alleging that they had conspired to secure his convictions by the knowing use of perjured testimony. Appellees' motion to dismiss the complaint under FRCiv.P 12(b) was granted by the district court on the following grounds:*fn1
(1) The issue of the veracity of the witnesses had been decided against appellant at his state criminal trial and, therefore, he was collaterally estopped*fn2 from bringing a civil damage suit based on the alleged use of perjured testimony against him; and
(2) Appellant's complaint consisted of broad conclusionary allegations not supported by specific factual averments.*fn3
At the outset we note that apart from the reasons stated by the district court, the dismissal of the complaint as to the district attorney, Moss, was proper on other grounds and should, therefore, be affirmed. Appellees, including Moss, moved to dismiss the complaint on the ground, inter alia, that it failed to set forth a cause of action. Treating this as a Rule 12(b) motion for "failure to state a claim upon which relief can be granted," the district court could properly have sustained the motion as to appellant Moss on the basis of prosecutorial immunity.
A state prosecuting attorney is immune from liability under the Civil Rights Act, unless his alleged actions are clearly outside the scope of his jurisdiction. Bauers v. Heisel, 361 F.2d 581 (3d Cir. 1966). Here appellee Moss was acting within his jurisdiction in bringing a criminal charge against appellant for a claimed violation of state law regardless of the allegations that the subsequent conviction was the result of perjured testimony. We therefore affirm the district court's dismissal of the complaint as to the district attorney on the ground that, because of his immunity from suit, the complaint failed to state a claim upon which relief could be granted against him. Bauers v. Heisel, supra at 592.
Having determined that the judgment of dismissal as to appellee Moss should not be disturbed, we now turn to a consideration of the grounds stated by the district court for dismissing the complaint against the remaining appellees.*fn4 In determining that appellant's civil rights suit was barred by his prior conviction, the district court relied on Curtis v. Tower, 262 F.2d 166 (6th Cir. 1959).*fn5 In Curtis, decided prior to Monroe v. Pape, 365 U.S. 167, 81 S. Ct. 473, 5 L. Ed. 2d 492 (1961), the court upheld the dismissal of a civil rights action, apparently on the basis of collateral estoppel, stating:
The judgment of the State Court, if not vacated, corrected, or amended by the state reviewing courts, or set aside by the Federal Court for invasion of a federal constitutional right, must be accepted by us as in full force and effect unless it is vacated by a state or federal court for some invasion of federal constitutional right. * * * If the State Court judgment is valid, the appellant has not been injured and his complaint in the District Court sets forth no cause of action under the Civil Rights Act. 262 F.2d at 167.
However, the language quoted above has subsequently been repudiated by the Sixth Circuit in Mulligan v. Schlachter, 389 F.2d 231 (6th Cir. 1968). In that case the plaintiff, who had been convicted of murder in the state court and was then serving his sentence, alleged a deprivation of civil rights by his arrest and seizure of his property without probable cause. The court of appeals reversed the dismissal of the civil rights claim, stating:
It is apparent that our statement in Curtis does not make sufficient allowance for the distinct federal interests which are protected by the Civil Rights Act. * * * While considerations of state-federal comity and judicial efficiency may dictate that a civil rights action be dismissed when the alleged deprivation has been examined fully during a state criminal trial or has been waived by the complainant, the simple fact of an unreversed state conviction cannot by itself require dismissal. 389 F.2d at 232-233.
We agree with the Sixth Circuit's holding in Mulligan. We therefore proceed to determine whether in the circumstances of this case the district court properly dismissed the civil ...