Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-19-2006

Tyus v. New Kensington
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-3626




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Recommended Citation
"Tyus v. New Kensington" (2006). 2006 Decisions. Paper 1077.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1077


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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-3626


                                    DANIEL TYUS,
                                                       Appellant
                                           vs.

CITY OF NEW KENSINGTON, a municipal corporation; RON ZELLERS, individually
and in his official capacity as a police officer for the New Kensington Police Department;
      JOHN PECK, individually, and in his official capacity as District Attorney of
Westmoreland County, Pennsylvania; LARRY KOENIG, Individually, and in his official
     capacity as Assistant District Attorney for Westmoreland County, Pennsylvania;
  PATRICK NOONAN, individually, and in his official capacity as Assistant District
  Attorney for Westmoreland County, Pennsylvania; WESTMORELAND COUNTY;
          WESTMORELAND COUNTY DISTRICT ATTORNEY’S OFFICE



             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                            (D.C. Civ. No. 04-cv-00138)
                   District Judge: Honorable Arthur J. Schwab


                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                   May 16, 2006

         Before: RENDELL, Van ANTWERPEN, and WEIS, Circuit Judges.

                                 (Filed: May 19, 2006)




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                                          OPINION


WEIS, Circuit Judge.

               As a retrial on first degree murder charges was about to begin, plaintiff

Tyus pleaded nolo contendre to a charge of aggravated assault in connection with the

death of Kevin Golden. Tyus was sentenced to time served and an additional term of

probation. He then filed suit against state law enforcement officials alleging violation of

his constitutional rights.

               Because this opinion is not precedential, we will not review the factual

background which is set out in the comprehensive memoranda of the District Court.

               The District Court entered judgments in favor of all of the defendants in

two Memorandum Opinions and Orders. Plaintiff has appealed the District Court’s grant

of summary judgment in favor of District Attorney John Peck, Assistant District Attorney

Larry Koenig, the Office of the District Attorney, City of New Kensington, and Detective

Ron Zellers.

               Plaintiff raised three issues on appeal. First, he argued that the District

Court erred when it concluded that Peck and Koenig were entitled to absolute

prosecutorial immunity. Second, plaintiff contends that the District Court erred when it

concluded that the underlying criminal proceedings did not terminate in his favor.

Finally, he contends that the District Court erred when it concluded that he did not satisfy


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the prerequisites for municipal and official liability.

              Plaintiff contended that detective Zellers secured an arrest warrant based in

part on a false statement in the affidavit. The District Court correctly found that the false

arrest claim was not viable because the criminal proceeding did not terminate in favor of

plaintiff; instead, plaintiff pleaded nolo contendre to the aggravated assault charge that

arose out of the conduct set out in the arrest warrant initiated by detective Zellers.

              Assistant District Attorney Koenig was entitled to absolute immunity

because his conduct in preparation for the trials and during the trials themselves were

within the scope of a prosecutor’s legitimate duties. See Imbler v. Pachtman, 

(1976). The District Court properly analyzed the evidence supporting summary

judgment in Koenig’s favor.

              Plaintiff failed to present evidence sufficient to defeat the motions for

summary judgment filed on behalf of District Attorney Peck, his office and the City of

New Kensington based on failure to train and supervise the conduct of the other

defendants. Accordingly, judgment was entered in their favor as well.

              Essentially for the reasons stated in the District Court’s Memorandum

Opinions, the Judgments of the District Court as to defendants Peck, Koenig, Zellers, the

Office of the District Attorney and the City of New Kensington will be affirmed.




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