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Cops Shaft Informant

In 1989 John Fay was serving a 15-35 year sentence for a second degree murder committed in 1973 and a 1984 armed robbery. While at the county jail pending a hearing on the robbery conviction, Fay came in contact with two guys who had just been arrested for an across the state crime spree. The two men, both in their early 20's, approached the 49 year old Fay with an escape plot. The two youngsters had outside help and they planned to take hostages.

Fay contacted the sheriff on duty, who in turn told the plot to the Pennsylvania State police stationed nearby. Fay subsequently met with the state police and agree to pretend to join the escape plan and to introduce one of the police officers as an associate of Fay's who would assist in the escape. In return, the state police promised Fay he could stay in the county jail as a trusty, and where he could have furloughs. Fay faithfully performed the undercover work for the police. A week later he was transferred to a more secure facility.

When Fay tried to collect his 30 pieces of silver (the transfer to a better joint), corrections officials told him they were not bound by any promise made by the state police. Fay's immediate captors said: "Fay is a dangerous prisoner with an admitted history of escapes from less secure facilities, and any agreement to reduce his confinement status would be void as against public policy." Fay then filed a civil rights suit in federal court.

The district court judge found "that officers of the Pennsylvania State Police promised Fay a specific benefit, namely transfer to a lower security institution, in exchange for the assistance Fay offered in working undercover to flush out the kidnapping plot." The judge went on to hold that "the negotiations [between Fay and the state police] led to a binding bilateral executory contract." The problem for Fay was that the existence of such a contract does not present a federal § 1983 claim. Accordingly, the district judge dismissed Fay's complaint. In doing so he had a parting shot for the state. "I am constrained to comment," the judge said, "that regardless of the legal niceties, Fay voluntarily risked his life to save several other persons, and the Department of Corrections, as a branch of the same government as the Pennsylvania State Police, owes Fay a moral debt to consider easing the burdens on his confinement." Fay's last noted place of confinement was S.C.I. Pittsburgh. See: Fay v. Ryan, 818 F.Supp. 822 (W.D. PA 1993).

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Related legal case

Fay v. Ryan

[29] Conclusions of Law

[30] Section 1983 claim

[31] By more than a preponderance of evidence, I find that officers of the Pennsylvania State Police promised Fay a specific benefit, namely transfer to a lower security institution such as the Somerset County Prison, in exchange for the assistance Fay offered in working undercover to flush out the kidnapping plot. Despite the argument raised by Ryan in his cross-examination of Fay that mention of reward in the discussions of the Somerset barracks came after Fay had agreed to work undercover and therefore constituted an unbargained-for promise, I conclude that, assuming the officers had the capacity to form a contract, the negotiations led to a binding bilateral executory contract.

[32] The threshold question confronting a federal court in addressing Fay's claim under Section 1983, however, since there is no question of the existence of state action, is whether plaintiff alleges the violation of a federal constitutional or statutory right. See e.g. Siegert v. Gilley, 114 L. Ed. 2d 277, 111 S. Ct. 1789 (1991); West Virginia University Hospitals, Inc. v. Casey, 885 F.2d 11, 18 (3d Cir.1989), aff'd, 499 U.S. 83, 113 L. Ed. 2d 68, 111 S. Ct. 1138 (1991). *fn2"

[33] Is a post-sentencing contractual obligation imposed on state officials a right, privilege, or immunity secured by the Constitution or federal law? The law on the subject is scant, with the majority of courts which have considered the general question holding that simple contract formation with state actors does not implicate the Constitution. See Downtown Auto Parks, Inc. v. Milwaukee, 938 F.2d 705 (7th Cir.1991); Medical Laundry Services v. Trustees of University of Alabama, 906 F.2d 571, 593 (11th Cir.1990) (citing Judge Roney's dissent in Medical Laundry Services v. University of Alabama, 840 F.2d 840, 843 (11th Cir.1988); S&D Maintenance Co., Inc. v. Goldin, 844 F.2d 962, 966-67 (2d Cir.1988). Without extensive analysis, one court has assumed constitutional immunities from prosecution to be implicated in contractual promises by law enforcement officers in the course of the investigation of crime. Arkebauer v. Kiley, 751 F. Supp. 783 (C.D.Ill.1990).

[34] The bulk of the decisions discussing specific performance of the typical law enforcement officer/criminal defendant contract, i.e., a plea bargain, are federal prosecutions not directly relevant to the legal issue in question, see United States v. Martin, 788 F.2d 184, 187 (3d Cir.1986); United States v. Brody, 808 F.2d 944, 947 (2d Cir.1986), because the federal government is by definition restrained by federal law. However, the Supreme Court decision which is the foundation for most of the federal decisions, Santobello v. New York, 404 U.S. 257, 30 L. Ed. 2d 427, 92 S. Ct. 495 (1971), although it involved a state court agreement, was before the Court on direct review. The Court's decision on the merits must therefore have assumed without discussion that the due process clause of the Fourteenth Amendment required state prosecutors to live up to their bargains, or the matter would have had to have been dismissed as resting on independent state law grounds. See e.g. Michigan v. Long, 463 U.S. 1032, 1038, 77 L. Ed. 2d 1201, 103 S. Ct. 3469 n.4 (1983).

[35] The unexamined underpinnings of Santobello and the unique facts of Arkebauer are fragile bases for extending the reach of Section 1983 to additional areas of contract with law enforcement officers. The federal system is straining with the onslaught of state prisoner cases as it is, see Doumar, Prisoners' Civil Right Suits, 11 George Mason L.Rev.1 (1988), and the doctrinal extension of Santobello which Fay must argue to obtain relief under Section 1983 would result in a massive shift of workload from the state administrative and judicial systems to the federal courts.

[36] Additionally, the trend in modern analysis of prisoner claims for non-systematic tort law violations by state officials in the prison setting indicates a preference for letting the state courts deal with areas of law not committed by the text of the Constitution to the federal courts. See Parratt v. Taylor, 451 U.S. 527, 68 L. Ed. 2d 420, 101 S. Ct. 1908 (1981) overruled in part by Daniels v. Williams, 474 U.S. 327, 88 L. Ed. 2d 662, 106 S. Ct. 662 (1984); Hudson v. Palmer, 468 U.S. 517, 534-36 (1984). No jurisprudential reason exists not to apply that analysis to simple breaches of contract.

[37] I hold that no Section 1983 claim is stated by plaintiff. If on appeal the Court of Appeals decides either that Section 1983 is implicated by the type of contractual promise at issue in this case, or that Fay has pleaded a pendent state law breach of contract claim, the analysis of Fay's right to recover would be tantamount to resolving a state law contract action involving a request for specific performance. I therefore turn to that analysis.

[38] State law claims

[39] There is no question that there was offer and acceptance, consideration, and on Fay's side, performance of the agreement made in March, 1989. The only issue to be resolved in deciding whether the agreement was a contract is the capacity of members of the state police to form a contract binding on the Department of Corrections.

[40] Agency

[41] Under Pennsylvania law, a principal is bound by the contracts made by its agents acting within their authority. Restatement of Agency, 2d, § 144, § 186. Bolus v. United Penn Bank, 363 Pa. Super. 247, 525 A.2d 1215, 1221 (1987), app. denied, 518 Pa. 627, 541 A.2d 1138 (1988). In the instant matter, however, there is little dispute that the officers of the Pennsylvania State Police were not the authorized agents of the Department of Corrections. The Department of Corrections, in fact, could not as a matter of state law delegate authority to the Pennsylvania State Police to make the kind of promise at issue in this matter. See 37 Pa. Code. § 93.11(a) ("No inmate shall have a right to be housed in a particular institution or in a particular area within an institution.")

[42] Apparent Agency

[43] Under Pennsylvania law, even if the officers of the Pennsylvania State Police are not the agents of the Department of Corrections, they may have bound the Department if they were apparently authorized to make an agreement with Fay in March, 1989. Restatement of Agency, 2d, § 159. See also id., § 194. Apparent authority, however, is a power "arising from and in accordance with the [principal's] manifestations to [third parties]." Id., § 8. Here, the Department of Corrections did not in any way convey to Fay the impression that the Pennsylvania State Police were authorized to act for them. *fn3" See D&G Equipment Co. v. First Nat'l Bank of Greencastle, 764 F.2d 950, 954 (3d Cir.1985). Nor did the Department of Corrections fail to indicate to Fay that they did not acquiesce in or ratify the actions of the state police. See Gordon L. Brown Associates v. Charnita, Inc., 329 Pa. Super. 325, 478 A.2d 491, 492 (1984). Although the individual members of the state police assured Fay that he had an agreement with them, they had no power to bind the Department of Corrections. Whether their error resulted from deception or inadvertent mistake, or even if they sincerely attempted to fulfill their end of the bargain, there was no contract binding on the Department of Corrections.

[44] Conclusion

[45] I am constrained to comment that regardless of the legal niceties, Fay voluntarily risked his life to save several other persons from potentially serious harm or death, and the Department of Corrections, as a branch of the same government as the Pennsylvania State Police, owes Fay a moral debt to consider easing the burdens on his confinement. On the facts of this case, even if Fay were entitled to relief, I would consider it void as against public policy to enforce a contract calling for his transfer to a less secure institution. There are, however, less restrictive classifications within the very state prison where Fay is now confined that can and should be considered.

[46] Judgment is entered for the defendant. Plaintiff shall file any notice of appeal to this order or to the previous orders dismissing his action against defendant Ryan, the Pennsylvania State Police, and the county defendants within 30 days of the entry of judgment. In forma pauperis status, if requested, is continued on appeal. The Clerk shall mark this matter closed.


[48] D. Brooks Smith, United States District Judge

[49] DATE: February 10, 1993

Opinion Footnotes

[50] *fn1 Additionally, Ryan asserts that because Fay is no longer at S.C.I. Dallas, no injunctive relief can be ordered against him. This argument is not well-founded, however, because if the agreement is to be enforced, it would be enforced by whatever prison official has custody of Fay at the time of judgment, and Rule 25(d) permits the substitution of that official for Ryan even at the time of judgment. See Fed.R.Civ.P. 25, Notes of Advisory Committee, 1961 Amendment.

[51] *fn2 That threshold question assumes substantial importance in this case because Fay has pleaded only a violation of the federal constitution and has alleged no pendent state breach of contract claims. However, out of an abundance of caution, I will analyze Fay's action as if he had raised a pendent state claim as well.

[52] *fn3 Fay may argue that because he was in the custody of the Somerset County Jail, Warden Delano and Deputy Warden Mastillo were agents of the Department of Corrections, and that Delano and Mastillo, by accepting the undercover plan launched by the state police, implicitly authorized the state police to act for them and for their ultimate principal, the Department of Corrections. Although colorable, this argument is simply too tenuous a basis on which to grant relief.