Lawrence Murrell, Jr. v. Michael Consiglio ( 2021 )

ALD-030 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 20-2085
___________
LAWRENCE MURRELL, JR.,
Appellant
v.
MICHAEL CONSIGLIO; GEORGE MANTANGOS;
BRENDA S. SHAFFER; JUDGE TODD HOOVER;
COURT ADMINISTRATOR OFFICE, Dauphin County Courthouse;
JUDGE RICHARD LEWIS; EDWARD MARSICO; DAUPHIN
COUNTY DISTRICT ATTORNEY OFFICE; WILLIAM
COSTOPOLUS; ROYCE L. MORRIS; JOSEPH SEMBROT;
GOLDBERG KATZMAN LAW FIRM; S. BAKER KENSINGER
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1-20-cv-00261)
District Judge: Honorable John E. Jones III
____________________________________
Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or
Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
November 12, 2020
Before: MCKEE, GREENAWAY, JR., and BIBAS, Circuit Judges
(Opinion filed: January 7, 2021)
_________
OPINION *
_________
PER CURIAM
Lawrence Murrell, Jr., appeals from the order of the District Court dismissing his
complaint. We will affirm, but we clarify that the dismissal is without prejudice to
Murrell’s ability to assert certain state-law claims in state court.
I.
In 2008, Murrell was convicted of first-degree murder and other crimes in
Pennsylvania state court. Murrell later asserted numerous grounds for relief during post-
conviction proceedings in both state and federal court. Among those grounds was a
claim that, during the prosecutor’s closing argument, the prosecutor directed the court
reporter to stop typing and then improperly argued to the jury that it should find Murrell
guilty “by the power of God.” Murrell did not obtain relief on that claim. He did,
however, obtain relief on three other and unrelated claims. On the basis of those claims,
a federal habeas court vacated Murrell’s convictions but stayed its order to give the
Commonwealth an opportunity to retry him. Rather than proceed to another trial, Murrell
pleaded guilty to third-degree murder and was later released from prison.
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
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Shortly before his release, Murrell filed the civil action at issue here seeking relief
under 42 U.S.C. §§ 1985 and 1985 on the basis of the same “power of God” claim
referenced above. Murrell claimed that virtually everyone involved in his criminal trial
and post-conviction proceedings conspired to ensure that the alleged “power of God”
statement was not transcribed. Toward that end, he named as defendants (inter alia) the
judges who presided over his trial and other proceedings, the prosecutor, the court
reporter who allegedly followed the prosecutor’s direction, and the lawyers who
represented him in these proceedings. Murrell alleged that these defendants conspired to
deprive him of his constitutional rights to due process and access to the courts.
Murrell filed his complaint in forma pauperis, so a Magistrate Judge screened it
pursuant to 28 U.S.C. § 1915(e)(2). The Magistrate Judge then recommended dismissing
Murrell’s complaint under § 1915(e)(2)(B)(ii) on the ground that it failed to state a claim
on which relief may be granted. The Magistrate Judge reasoned, among other things, that
the judicial defendants, the prosecutorial defendants, and the court reporter were all
entitled to absolute immunity. The Magistrate Judge further concluded that any
amendment of Murrell’s complaint would be futile. Over Murrell’s objections, the
District Court agreed and dismissed his complaint. Murrell appeals. 1
1
We have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of the
District Court’s dismissal under § 1915(e)(2)(B)(ii). See Allah v. Seiverling, 229 F.3d
220, 223 (3d Cir. 2000). We review the denial of leave to amend a complaint for abuse
of discretion. See Great W. Mining & Min. Co. v. Fox Rothschild LLP, 615 F.3d 159,
163 (3d Cir. 2010).
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II.
We will affirm substantially for the reasons explained by the Magistrate Judge and
the District Court. We briefly address four issues.
First, Murrell challenges the District Court’s ruling that his claims against the
judicial and prosecutorial defendants are barred by absolute immunity. We agree with
the District Court that the judicial defendants were immune because Murrell alleges
nothing suggesting that they acted “in the clear absence of all jurisdiction.” Capogrosso
v. Sup. Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam) (quotation marks
omitted). We further agree that Murrell’s prosecutor was immune because the prosecutor
allegedly made the statements at issue while “presenting a state’s case at trial.” Fogle v.
Sokol, 957 F.3d 148, 160 (3d Cir. 2020).
Murrell argues that immunity does not apply because the prosecutor’s alleged
statements transformed his judicial proceeding into a “religious event.” He relies on Doe
v. Phillips, 81 F.3d 1204 (2d Cir. 1996), but that case is inapposite. In that case, the court
held that a prosecutor was not entitled to immunity from allegations that he required the
plaintiff, outside the context of any judicial proceeding, to swear to her innocence on a
Bible in church in order to obtain the dismissal of pending charges. See id. at 1210.
Murrell’s prosecutor, by contrast, made his alleged statements at trial. That circumstance
brings the prosecutor’s alleged conduct squarely within the bounds of immunity. See
Fogle, 957 F.3d at 160. That circumstance also distinguishes the other authority on
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which Murrell relies. See, e.g., Gagan v. Norton, 35 F.3d 1473, 1474-75 (10th Cir.
1994); Ryland v. Shapiro, 708 F.2d 967, 975 (5th Cir. 1983).
Second, Murrell challenges the District Court’s extension of absolute judicial
immunity to the court reporter. As Murrell argues, the Supreme Court has held that court
reporters are not shielded by absolute immunity for their own alleged conduct. See
Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 434-37 (1993). Neither the Magistrate
Judge nor the District Court addressed Antoine. Nevertheless, we will affirm the
dismissal of Murrell’s claims against the court reporter on the ground that she was
protected, not by absolute immunity, but by qualified immunity.
Murrell alleges that the court reporter paused her transcription of the trial at the
prosecutor’s instruction (and thus presumably with the tacit approval of both Murrell’s
own counsel and the presiding judge). Murrell has not cited anything suggesting that a
court reporter has a constitutional duty to continue transcribing a trial under these
circumstances. Assuming without deciding that such a duty might exist, however, these
circumstances entitle the court reporter to at least qualified immunity. Cf. Green v.
Maraio, 722 F.2d 1013, 1019 (2d Cir. 1983) (holding that a court reporter was entitled to
qualified immunity for following a judge’s alleged instruction to alter a transcript).
Third, the District Court dismissed some of Murrell’s claims on the ground that he
had not plausibly alleged any conspiracy among the named defendants. Murrell argued
below that he should be allowed to amend his complaint, but he did not specify how he
could do so. Nor has he mentioned the possibility of amendment on appeal. We
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nevertheless have considered the issue of amendment, and we see nothing suggesting that
amendment would be anything other than futile.
Finally, in Murrell’s complaint, he asked that it be “forwarded to state court for a
tort lawsuit” against his various counsel if the District Court determined that they were
not conspirators for §§ 1983 and 1985 purposes. The Magistrate Judge concluded that
Murrell did not actually assert any state-law claims in his complaint. Murrell argued in
his objections below, and argues on appeal, that he asserted state-law claims against his
counsel for fraud, malpractice, breach of contract, and breach of fiduciary duty.
We agree that Murrell’s pro se complaint can be construed to assert these state-law
claims. Thus, although the District Court did not mention them, we construe its order of
dismissal as declining to exercise supplemental jurisdiction over these claims under 28
U.S.C. § 1367. That means that the District Court’s dismissal is without prejudice to
Murrell’s ability to assert these claims in state court. We express no opinion on the
merits of these claims or on whether it is otherwise proper for Murrell to raise them.
III.
For these reasons, we will affirm the judgment of the District Court. Murrell’s
motions are denied. 2
2
One of Murrell’s motions requests a certificate of appealability. A certificate of
appealability is not required because this appeal is not from a habeas corpus proceeding
or a proceeding under 28 U.S.C. § 2255. See 28 U.S.C. § 2253(c)(1). We nevertheless
have considered the substance of Murrell’s motion in reaching our disposition.
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