Whitfield v. City of Philadelphia

MEMORANDUM

Before this Court are Rufus Whitfield’s 42 U.S.C. § 1983 (“Section 1983”) claims against the City of Philadelphia, Lynne Abraham (“Abraham”), the Philadelphia District Attorney, and Catherine Marshall (“Marshall”), Chief of the Appeals Unit of the Philadelphia District Attorney’s Office (collectively “Defendants”). Whitfield contends that Defendants’ decision to appeal *661 the vacatur of his illegal prison sentence on “technical procedural grounds” violated his constitutional rights under the Fifth, Eighth, and Fourteenth Amendments. Defendants filed the instant motion to dismiss Whitfield’s complaint for failure to state a claim upon which relief could be granted. 1 Defendants’ motion will be granted.

I. BACKGROUND 2

On May 12, 1992, Rufus Whitfield pleaded guilty to various theft related offenses and was sentenced in the Court of Common Pleas, Philadelphia County to a term of imprisonment and parole/probation. (Complaint ¶4; Commonwealth v. Whitfield, CP 9106-2344 (Phila.Ct.Com.Pl. May 1, 2003) (“Lynn Op.”) 2.) After serving a portion of that sentence, Whitfield was released on parole. On February 19,1997, however, Whitfield’s parole was revoked and he was ordered to serve the balance of his May 1992 sentence. (Lynn Op. at 1-2.) At that time, the sentencing judge acknowledged that Whitfield’s term of probation “maxes out on January 8, 1998.” (Complaint ¶ 5; Defs.’ Mot. Dismiss Ex. 2.)

On September 26, 2001, Whitfield was back before the Court of Common Pleas, Philadelphia County, charged with probation/parole violation resulting from his conviction for the unauthorized use of a motor vehicle. On that day, Whitfield was sentenced to a three and one half to seven year term of imprisonment for the probation/parole violation. (Complaint ¶ 7; Lynn Op. at 2.) At the time of Whitfield’s sentencing, the sentencing judge, Judge Lynn, was unaware that the term of probation, which formed the underlying basis for the three and one half to seven year sentence, had in fact expired more than three years earlier, on January 8, 1998. (Complaint ¶ 7.) 3

Whitfield’s subsequent motion to vacate the September 26, 2001 sentence on the grounds of illegality was denied on March 28, 2002. 4 (Lynn Op. at 2; Defs.’ Mot. Dismiss at 3.) Whitfield filed a timely appeal to the Pennsylvania Superior Court. (Lynn Op. at 2.) Upon learning of Whitfield’s appeal, Judge Lynn ordered that testimony from Whitfield’s sentencing proceedings in 1992, 1997, and 2001 be tran *662 scribed. (Lynn Op. at 2-3.) On May 24, 2002 and June 10, 2002, while Whitfield’s appeal to the Pennsylvania Superior Court was pending, attorneys from the Defenders Association of Philadelphia wrote to Judge Lynn claiming that Whitfield was being illegally detained. (Complaint ¶ 9; Lynn Op. at 2.) 5

On September 30, 2002, Judge Lynn received the notes of testimony from the February 19, 1997 sentencing hearing. (Complaint ¶ 10.) Upon receiving these notes, the Judge ordered them faxed to the District Attorney’s Office, along with copies of the May 24, 2002 and June 10, 2002 letters from Whitfield’s attorneys. These materials were “faxed to Jim Law-renson, a paralegal in the appeals unit of the District Attorney’s Office” with a note that “directed the District Attorney’s Office to inform [the] Court of their position in this matter as soon as possible.” (Lynn Op. at 3; Complaint ¶ 10.) In a subsequent opinion, Judge Lynn noted that his chambers [was] made aware, via telephone, that Catherine Marshall, Chief, Appeals Unit of the District Attorney’s Office, was given the ... fax by Mr. Lawrenson.” (Lynn Op. at 3; Complaint ¶ 11.) 6

On October 10, 2002, Judge Lynn issued an order vacating Whitfield’s September 26, 2001 sentence, noting that at the time of the sentencing, “this court inadvertently believed the defendant [Whitfield] was still on its probation. This court has recently obtained the notes of testimony from February 19, 1997 hearing wherein it is indicated that defendant [Whitfield] would be finished with the courts probation on January 8, 1998 .... the sentence imposed by this court upon defendant [Whitfield] on September 26, 2001 is therefore illegal and is vacated.” (Complaint ¶ 14, Ex. A.) On October 18, 2002, Whitfield withdrew the pending appeal of his sentence in the Pennsylvania Superior Court. (Defs.’ Mot. Dismiss Ex. 4.)

The District Attorney’s Office appealed the October 10, 2002 vacatur to the Pennsylvania Superior Court, arguing that the order was a “nullity” because the trial court acted without proper jurisdiction. (Id.) On August 22, 2003, the Pennsylvania Superior Court affirmed the trial court’s decision to vacate Whitfield’s sentence. (Id. Ex. 6.) The District Attorney’s Office then petitioned the Pennsylvania Supreme Court for an allowance of appeal, which *663 was granted on April 7, 2004. (Id. Ex. 7.) The Pennsylvania Supreme Court heard argument in the case on October 12, 2004, but did not render its decision until October 16, 2007. A deeply divided Court held that while the trial court lacked jurisdiction to vacate Whitfield’s sentence, the va-catur was proper given the trial court’s inherent power to correct patent and obvious mistakes. Pa. v. Christopher Holmes & Rufus Whitfield, 593 Pa. 601, 933 A.2d 57, 66 (2007). 7 In so holding, the Court recognized the tension between 42 Pa.C.S. § 5505, which provides a limited 30-day window during which a trial court has jurisdiction to modify or rescind an order (provided that the order in question has not been appealed), and the inherent power of the court to correct patent errors of law. Id. From the date of the first appeal by the Philadelphia District Attorney’s Office of the October 10, 2002 vacatur order, to the day of the Pennsylvania Supreme Court’s decision on October 16, 2007, Whitfield remained incarcerated. 8

In Counts One and Two of his Second Amended Complaint, Whitfield alleges that both Abraham and Marshall are liable as supervisors 9 under Section 1983 for acting “under color of state law” to “continue! ] criminal prosecutions against the plaintiff on charges of probation and/or parole violations after receiving notice that said charges were unfounded” (Complaint ¶¶ 43, 61), and for following a policy of “failing to correct [the] unconstitutional conduct of their subordinates” (id. ¶¶41, 59). In addition, Whitfield alleges that Abraham and Marshall “failed in their duty to investigate” his illegal incarceration and “instead made the unlawful administrative decision to continue to prose *664 cute the matter and to appeal the Court’s Order of October 10, 2002 on technical procedural grounds knowing that, as a result, they would directly cause plaintiff to remain incarcerated in violation of his Constitutional rights.” (Id. ¶ 20.) 10 In Count Three of the Complaint, Whitfield alleges that the City of Philadelphia is liable under Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), for establishing a “policy and practice” of “prosecut[ing] persons with suspected probation and/or parole violations in a reckless manner” and “encouraging] its employees to prosecute its cases without regards for the civil rights of persons.” (Complaint ¶¶ 70, 73.)

Defendants argue that Abraham and Marshall are shielded from liability in their individual capacities by “the doctrine of absolute prosecutorial immunity” because the appeal at issue was unquestionably related to their role as advocates, not administrators. (Defs.’ Mot. Dismiss at 16.) Defendants also argue that this absolute prosecutorial immunity bars any finding of supervisory liability against Abraham and Marshall. (Id. at 16-17.) Moreover, Defendants contend that, even in the absence of absolute immunity, Abraham and Marshall are entitled to qualified immunity for their decision to appeal the vacatur. (Id. at 18.) Finally, Defendants argue that the allegations in the complaint are insufficient to state a claim for municipal liability against the City of Philadelphia. (Id. at 21.)

II. LEGAL STANDARD

A. Motion to Dismiss under Rule 12(b)(6)

In deciding a motion to dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted, the Court must “accept as true all allegations in the complaint and all reasonable inferences that can be drawn therefrom, and view them in the light most favorable to the non-moving party.” DeBenedictis v. Merrill Lynch & Co., Inc., 492 F.3d 209, 216 (3d Cir.2007) (quotation omitted); Maisonet v. City of Phila., No. 06-4858, 2007 WL 1366879, at *4 (E.D.Pa. May 7, 2007) (granting motion to dismiss on absolute prosecutorial immunity grounds). The Court need not, however, “credit either bald assertions or legal conclusions in a complaint when deciding a motion to dismiss.” DeBenedictis, 492 F.3d at 215 (quoting Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir.2005)). Rather, for the purposes of Rule 12(b)(6), the complaint’s factual allegations “ ‘must be enough to raise the right to relief above the speculative level.’ ” Phillips v. County of Allegheny, 515 F.3d 224, 232 (3d Cir.2008) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1965 & n. 3, 167 L.Ed.2d 929 (2007)).

B. Section 1983

Section 1983 of Title 42 of the United States Code provides a cause of action for an individual whose constitutional or federal rights are violated by those acting under color of state law. 11 See generally Gonza *665 ga Univ. v. Doe, 536 U.S. 273, 284-85, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (recognizing that Section 1983 provides a remedy for violations of individual rights “secured by the Constitution and laws” of the United States). Here, Defendants do not dispute that the conduct complained of occurred “under color of state law.” 12

III. DISCUSSION

A. Individual Liability of Abraham and Marshall 13

It is well settled that individual prosecutors are entitled to absolute immunity from Section 1983 liability for any action performed pursuant to their judicial or quasi-judicial function as advocates for the state. Recently, the Third Circuit rehearsed the guiding principles which govern the application of absolute immunity to the conduct of individual prosecutors.

A prosecutor bears the “heavy burden” of establishing entitlement to absolute immunity. Light v. Haws, 472 F.3d 74, 80-81 (3d Cir.2007) (quoting Forsyth v. Kleindienst, 599 F.2d 1203, 1212 (3d Cir.1979)). In light of the Supreme Court’s “quite sparing” recognition of absolute immunity to § 1983 liability, we begin with the presumption that qualified rather than absolute immunity is appropriate. Carter v. City of Philadelphia, 181 F.3d 339, 355 (3d Cir.1999) (citing Burns v. Reed, 500 U.S. 478, 486-87, 111 S.Ct. 1934, 114 L.Ed.2d 547 (1991)).

To overcome this presumption, a prosecutor must show that he or she was functioning as the state’s advocate when performing the action(s) in question. Yarris, 465 F.3d at 136. This inquiry focuses on “the nature of the function performed, not the identity of the actor who performed it.” Light, 472 F.3d at, 78 (quoting Hughes v. Long, 242 F.3d 121, 125 (3d Cir.2001)). Under this functional approach, a prosecutor enjoys absolute immunity for actions performed in a judicial or “quasi-judicial” capacity. Giuffre, 31 F.3d at 1251 (quoting Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)); Rose v. Bartle, 871 F.2d 331, 346 (3d Cir.1989). Thus, immunity attaches to actions “intimately associated with the judicial phases of litigation,” but not to administrative or investigatory actions unrelated to initiating and conducting judicial proceedings. Giuffre, 31 F.3d at 1251 (quoting Imbler, 424 U.S. at 430, 96 S.Ct. 984) (internal quotation omitted); see also Rose, 871 F.2d at 346 (contrasting the prosecutor’s “quasi-judicial” role from his “administrative/ investigative” role).

Odd v. Malone, 538 F.3d 202, 207-08 (3d Cir.2008). Thus, the test is whether based on the unique facts of the case, the conduct of the prosecutor was “ ‘quasi judicial,’ and entitled to absolute immunity, or ‘administrative or investigatory,’ and not so entitled.” Id. at 208 (citing Giuffre v. Bissell, 31 F.3d 1241, 1251 (3d Cir.1994); Rose v. Bartle, 871 F.2d 331, 346 (3d Cir.1989)).

While there is no bright-line rule that dictates whether a prosecutor’s conduct is “intimately associated with the judicial phase of litigation,” Odd, 538 F.3d at 210 (observing that the Third Circuit has *666 rejected tests “that would treat the timing of the prosecutor’s action (e.g. pre- or post-indictment), or its location (i.e. in- or out-of-court), as dispositive”), courts have applied the doctrine of absolute prosecutorial immunity with particular force when the conduct at issue relates to the initiation of a prosecution, that is, in “deciding which suits to bring and in conducting them in court[,]” Imbler, 424 U.S. at 430, 96 S.Ct. 984. The Third Circuit extends the protection even where prosecutions are brought in bad faith. Kulwicki v. Dawson, 969 F.2d 1454, 1463-64 (3d Cir.1992) (finding that “the decision to initiate a prosecution is at the core of the prosecutor’s judicial role” and that “[a] prosecutor is absolutely immune when making this decision, even where he acts without a good faith belief that any wrongdoing has occurred”); Ernst v. Child & Youth Servs., 108 F.3d 486, 503 (3d Cir.1997).

With respect to post-conviction proceedings, the Third Circuit has held that “ ‘absolute immunity applies to the adversarial acts of prosecutors during post-conviction proceedings ... where the prosecutor is personally involved ... and continues his role as an advocate.’ ” 14 Yarris v. County of Del., 465 F.3d 129, 137 (3d Cir.2006); see also Byrd v. Parris, No. Civ. A. 99-769, 1999 WL 895647, at *4 (E.D.Pa. Oct. 15, 1999) (finding that prosecutors were entitled to absolute immunity for conduct during appeal); Parkinson v. Cozzolino, 238 F.3d 145, 151 (2d Cir.2001) (noting that there is “no meaningful distinction between the role of a prosecutor in obtaining a conviction and the role of a prosecutor in striving to uphold that conviction on appeal or to obtain a new conviction upon re-trial”); Carter v. Burch, 34 F.3d 257, 263 (4th Cir.1994) (holding that prosecutor who was functioning as an advocate for the state in post-conviction proceedings was absolutely immune from Section 1983 liability); Joseph v. Patterson, 795 F.2d 549, 557 (6th Cir.1986), abrogated on other grounds by Kalina v. Fletcher, 522 U.S. 118, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997) (observing that the rationale behind absolute immunity at the trial level “applies equally” to appeals). In fact, the Court has been unable to find any case holding that a prosecutor’s conduct in initiating an appeal is “administrative” or “investigatory” such that it is not absolutely immune from Section 1983 liability.

Thus, to the extent that Whitfield bases his claim on Abraham’s or Marshall’s direct involvement in the decision to appeal the October 10, 2002 vacatur of his sentence, he fails to state a claim upon which relief can be granted. Such decision by Abraham or Marshall stands at the core of the prosecutorial function, and constitutes “quasi-judicial” conduct, for which they are both afforded absolute immunity.

B. Supervisory Liability of Abraham and Marshall

Under Section 1983, a supervisor may be liable for her failure to train or supervise her employees where “the failure amounts to ‘deliberate indifference’ to the rights of persons with whom those employees will come into contact.” Carter v. City of Phila., 181 F.3d 339, 357 (3d Cir.1999) (quoting City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)). The Third Circuit has clarified that “deliberate indifference” may exist where “the need for more or different training is obvious and inadequacy very likely to result in violation of constitutional rights.” Id.; see also McKinney v. Passaic County Prosecutor’s Office, No. 08-3149(PGS), 2008 WL 4104448, at *5 *667 (D.N.J. Sept. 3, 2008) (noting that liability may attach where “the failure to train or supervise can fairly be said to represent official policy”). If deliberate indifference is proven, a plaintiff must then demonstrate that the failure to supervise resulted in the constitutional violation at issue in the complaint. Carter, 181 F.3d at 357 n. 61.

To state a claim for supervisory liability under Section 1983, a plaintiff must “not only identify a specific supervisory practice that the defendant failed to employ, he or she must also allege ‘both (1) contemporaneous knowledge of the offending incident or knowledge of a prior pattern of similar incidents, and (2) circumstances under which the supervisor’s inaction could be found to have communicated a message of approval.” C.H. ex rel. Z.H. v. Oliva, 226 F.3d 198, 202 (3d Cir.2000) (quoting Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 (3d Cir.1997)).

As an initial matter, Whitfield’s complaint does not state a claim for supervisory liability against Abraham or Marshall because it does not identify any specific supervisory practice that Abraham or Marshall failed to employ in connection with the decision to appeal the vacatur of his sentence. Rather, the complaint states only that “Defendants Abraham and Marshall failed in their duties to set policies and procedures to instruct, teach and/or otherwise direct their subordinates to avoid violations of the Constitution including but not limited to its protection against double jeopardy.” (Complaint ¶ 22.) As a matter of substantive law, this is insufficient. See C.H. ex rel. Z.H., 226 F.3d at 202; e.g., Cruz v. City of Phila., No. 07-493, 2007 WL 4190690, at *3 (E.D.Pa. Nov. 21, 2007) (dismissing Section 1983 claim for supervisory liability where plaintiffs complaint “does not allege any specific supervisory practice that Abraham failed to employ in connection with the decision to prosecute”).

Additionally, the complaint does not aver that a failure by Abraham or Marshall to supervise their subordinates resulted in the violation of Whitfield’s constitutional rights. To the contrary, Whitfield alleges that Abraham and Marshall themselves violated his constitutional rights. (Complaint ¶ 24 (“[Defendants engaged in a continuing violation of plaintiffs constitutional rights by proceeding with the prosecution of the case even after the Superior Court decision.”)) In light of these allegations, the mere incantation of the term “instruct, teach and/or otherwise direct” in Whitfield’s complaint does not automatically convert the claim of a direct violation by Abraham and Marshall into one of supervisory liability. See, e.g., Williams v. Fedor, 69 F.Supp.2d 649, 663-64 (M.D.Pa.1999) (rejecting plaintiffs “failure to supervise” claim where plaintiff was really complaining about the conduct of the District Attorney, not his subordinates, and noting that “[t]he bar to municipal liability when a district attorney acts in a prosecutorial capacity cannot be so easily circumvented”).

Moreover, the supervisory conduct alleged against Abraham and Marshall— namely, their failure to “instruct, teach and/or otherwise direct their subordinates to avoid violations of the Constitution” in pursuing the appeal of an illegal sentence on technical procedural grounds — cannot fairly be called “administrative.” Rather, Abraham’s and Marshall’s supervision or instruction of subordinates to pursue an appeal is quasi-judicial conduct which, as discussed above, is “intimately associated with the judicial phases of litigation.” 15 *668 Thus, Abraham and Marshall are entitled to absolute immunity in this instance. Carter, 181 F.3d at 353 (implying that policies related to “whether and how to prosecute violations of state law” are pros-ecutorial rather than administrative). 16

Furthermore, even if absolute prosecutorial immunity is not available to Abraham and Marshall for their alleged failure to “instruct, teach and/or otherwise direct their subordinates to avoid violations of the Constitution,” qualified immunity may still bar Whitfield’s Section 1983 claims for supervisory liability. 17 “Qualified immunity is ‘an entitlement not to stand trial or face the other burdens of litigation.’ ” Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Such immunity is appropriate where a prosecutor’s conduct is “objectively reasonable in light of the constitutional rights affected.” Odd, 538 F.3d at 217; see Carter, 181 F.3d at 356.

Pursuant to the test articulated by the Supreme Court in Saucier, courts must engage in a two-tiered analysis to determine whether a Section 1983 defendant is entitled to qualified immunity. First, the court must determine whether “ ‘[t]aken in the light most favorable to the party asserting the injury ... the facts alleged show the officer’s conduct violated a constitutional right[.]’ ” Hubbard v. Taylor, 538 F.3d 229, 231 (3d Cir.2008) (quoting Saucier, 533 U.S. at 201, 121 S.Ct. 2151). Second, if the answer is yes, the court must then determine “ ‘whether the right was clearly established.’ ” Id. In considering the second prong of the Saucier test, the Third Circuit clarified that “[a] right is clearly established for the purposes of qualified immunity when its contours are ‘sufficiently clear that a reasonable official would understand that what he is doing violates that right.’ ” Hubbard, 538 F.3d at 236 (quoting Williams v. Bitner, 455 F.3d 186, 191 (3d Cir.2006)). This standard “ ‘gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law.’ ” Id. (quoting Gilles v. Davis, 427 F.3d 197, 207 (3d Cir.2005)).

In his complaint, Whitfield avers a “kitchen sink” of constitutional violations, but fails to allege adequately that it was Defendants’ conduct in supervising the ap *669 peal of Judge Lynn’s October 10, 2002 vacatur that violated his constitutional rights. This infirmity is not one of detail but rather one of substance in failing to allege a constitutional violation at all. 18 In fact, Whitfield repeatedly acknowledges that Defendants’ pursuit of an appeal in this instance was lawful. See Hr’g Tr. at 12:3-5, Sept. 5, 2008 (“I’m not saying that the appeal is unlawful, Your Honor, I would not go to that in that regard”); Pl.’s Opp’n Defs.’ Mot. Dismiss at 17 (conceding that while Whitfield’s imprisonment was “unquestionably illegal,” Defendants’ appeal of the October 10, 2002 vacatur “may have had some legal merit”). In short, Whitfield’s claims for supervisory liability under Section 1983 do not “allege[] facts that amount to a constitutional violation.” Sands v. McCormick, 502 F.3d 263, 270 (3d Cir.2007) (affirming the dismissal of Section 1983 claims against a District Attorney where plaintiff failed to state a constitutional violation and noting that “[t]he miscommunication here had unfortunate results. Criminal procedures are often harsh and mistakes can be made, but that does not make the process unconstitutional per se”). 19 Given that there is no allegation of a constitutional violation, Abraham and Marshall are entitled to qualified immunity. See, e.g., Miller v. Clinton County, 544 F.3d 542, 553 (3d Cir.2008) (finding that where plaintiff failed to allege a constitutional violation, defendant was entitled to qualified immunity). 20

*670 C. Policymaker Liability of Abraham and Marshall

In the complaint, Whitfield alleges that Abraham and Marshall are liable as “policymakers” under Section 1983 because they employed a policy or custom of appealing vacaturs on “technical procedural grounds” with “callous disregard for, and deliberate indifference” to individuals’ constitutional rights. (See, e.g., Complaint ¶¶ 41, 42, 44, 46, 53, 55, 59, 60, 62.) As an initial matter, the Court notes that the standard of liability for individual policymakers under Section 1983 is the same as the standard for municipalities. Carter, 181 F.3d at 356. Whitfield must demonstrate that the policy or the custom at issue violated his constitutional rights and was the proximate caúse of his injury. Watson v. Abington Twp., 478 F.3d 144, 155 (3d Cir.2007); Bielevicz v. Dubinon, 915 F.2d 845, 850 (3d Cir.1990) (noting that “proof of the mere existence of an unlawful policy or custom is not enough to maintain a Section 1983 action”).

For the purposes of Section 1983, the Third Circuit has recognized the existence of a “policy” where “ ‘a decisionmaker possessing] final authority to establish municipal policy with respect to the action issues an official proclamation, policy or edict.’ ” Watson, 478 F.3d at 155 (quoting Bielevicz, 915 F.2d at 850 (internal quotations omitted)). A custom is established by showing that the defendant knew about, and acquiesced to, a practice. Watson, 478 F.3d at 156; see also Carswell v. Borough of Homestead, 381 F.3d 235, 244 (3d Cir.2004) (noting that proof of an unconstitutional policy or custom “typically requires proof of a pattern of unconstitutional violations”).

In addition, regardless of whether the conduct at issue constituted policy or a custom, policymaking liability is only appropriate if Whitfield can demonstrate that Defendants had “ ‘final, unreviewable discretion to make a decision or take an action.’ ” Watson, 478 F.3d at 156 (quoting Andrews v. City of Phila., 895 F.2d 1469, 1481 (3d Cir.1990)).

Given that Abraham, the District Attorney, undeniably is the highest policymaker within the office, the question is whether an allegation of policymaker liability allows a plaintiff to bypass the absolute immunity enjoyed by prosecutors for “quasi judicial” conduct at the motion to dismiss stage. In other words, may a plaintiff by alleging policymaker liability do indirectly that which the doctrine of absolute immunity bars him from doing directly.

The case of Eisenberg v. Dist. Attorney for the County of Kings is instructive. 847 F.Supp. 1029 (E.D.N.Y.1994). There, the court considered whether a District Attorney’s alleged policy of prosecuting sex crimes, notwithstanding a “total lack of supporting evidence,” was entitled to absolute immunity. The Eisenberg Court held that there was no meaningful distinction between formulating a policy to prosecute a particular type of crime, and prosecuting an individual for that specific crime. The court concluded that, in terms of the public policy considerations supporting the application of the doctrine of absolute immunity, the District Attorney was absolutely immune. Id. at 1037 (holding the “mere characterization of [a] District Attorney’s prosecutorial decision making as “policy” does not remove it from the ambit of absolute immunity”).

Eisenberg relied on Haynesworth v. Miller, a case where the Court of Appeals for the District of Columbia held that the defendant prosecutor was absolutely immune for prosecuting an individual under a policy of pursuing criminal charges against individuals who had refused to waive civil suits against officers after enduring an unlawful arrest. 820 F.2d 1245, 1248 *671 (D.C.Cir.1987), abrogated on other grounds by Hartman v. Moore, 547 U.S. 250, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006). There, the Court stated that “the decision to focus prosecutorial energies upon particular cases of law violations or violators clearly bears many features in common with a decision to commence a single proceeding.” Id. at 1269.

The teachings of Eisenberg and Haynes-luorth are persuasive. The policy and conduct that Whitfield is challenging here, i.e. appealing all cases where vacatur is entered on “technical procedural grounds,” is virtually indistinguishable from the decision to appeal the vacatur in his case alone. Thus, Abraham is entitled to absolute immunity and Whitfield’s claims against her for policy making liability under Section 1983 will be dismissed.

The analysis with respect to Marshall is slightly different. Although Whitfield alleges that Marshall is a “final policymaker” by virtue of her position as “Chief of the Appeals Unit” (Complaint ¶ 62), courts in this district have routinely held that Assistant District Attorneys cannot be policy makers for Section 1983 purposes because they lack unreviewable discretion as a matter of law. See Jordan v. Appeldorn, No. Civ-A 00-1717, 2000 WL 1100786, at *3 (E.D.Pa. Aug. 1, 2000) (holding that an assistant district attorney in Philadelphia County was not a policymaker who can create or authorize official procedures or practices); Hull v. Mallon, No. 00-5698, 2001 WL 964115, at *2 (E.D.Pa. Aug. 21, 2001) (holding that as an assistant district attorney, the defendant could not be held liable as a policy maker); Payson v. Ryan, No. 90-1873, 1992 WL 111341, at *11 (E.D.Pa. May 14, 1992) (holding that while the District Attorney may appoint assistants to assist him in the discharge of his duties, there is no indication in the law of Pennsylvania that those assistants have any policy making authority). Plaintiff does not cite any case to the contrary.

For these reasons, Marshall cannot be considered a policymaker and Whitfield’s claims against her for conduct allegedly undertaken as a policymaker shall be dismissed.

D. City of Philadelphia

As mentioned above, a plaintiff can establish municipal liability under Section 1983 by demonstrating that a unconstitutional policy or custom proximately caused his injuries. Watson, 478 F.3d at 155-56. It is axiomatic that municipal liability “cannot be based on the respondeat superior doctrine, but must be founded upon evidence that the government unit itself supported a violation of constitutional rights.” Id. at 155 (relying upon Monell, 436 U.S. 658, 691-95, 98 S.Ct. 2018 (1978)). Importantly, when prosecuting crimes or “otherwise carrying] out policies established by the State,” prosecutors are in fact acting as state officials. Carter, 181 F.3d at 353 (citing Coleman v. Kaye, 87 F.3d 1491, 1499 (3d Cir.1996)). It is only when making administrative decisions that a prosecutor is acting as a county official. Id. Thus, a municipality can only be held liable for the acts of its officials undertaken in an administrative capacity. Williams, 69 F.Supp.2d at 663.

Here, Whitfield alleges that “defendant City had established a policy to prosecute persons with suspected probation and/or parole violations in a reckless manner without regards for possible violations of an individual’s constitutional rights.” (Complaint ¶ 70.) According to the complaint, this policy was “ratified by defendants Abraham and Marshall who had served as the final official policymakers for the defendant City’s District Attorney’s Office and its Appeal Unit.” (Id. ¶ 75.)

*672 These claims against the City of Philadelphia do not have merit. As discussed above, Abraham’s actions were undertaken in her role as a prosecutor, not as an administrator, and Marshall’s actions cannot be attributed to the City of Philadelphia for the purposes of Section 1983 liability because she does not have final policymaking authority. Just as this determination defeats the claims against the individual defendants, so too must the claims against the City of Philadelphia fail. 21 Williams, 69 F.Supp.2d at 662 (holding that “[t]he analysis in Carter supports the conclusion that the County cannot be held liable on the basis of the challenged ‘prosecutorial decisions’ ”); see also Crawford v. Commonwealth of Pa., No. 08-0693, 2006 WL 148881, at *4 (M.D.Pa. Jan. 19, 2006) (noting that “under settled law it cannot be said that it was the county’s policy to repeatedly prosecute [Defendant], because when a district attorney in Pennsylvania exercises his prosecutorial discretion he is representing the state”). Thus, Whitfield’s Section 1983 claims against the City of Philadelphia shall be dismissed.

IV. CONCLUSION

For these reasons, the defendants’ motion to dismiss shall be granted. An appropriate order will issue.

ORDER

AND NOW, this 19th day of November, 2008, for the reasons stated in the accompanying Memorandum, it is hereby ORDERED that Defendants’ motion to dismiss (doc. no. 23) is GRANTED. All of Plaintiffs claims as to all Defendants are hereby DISMISSED with prejudice.

AND IT IS SO ORDERED.