Thorpe v. City of Phila.

• Decision Date: 31 August 2020
• Docket Number: CIVIL ACTION No. 19-5094
• Parties: DWAYNE THORPE, Plaintiff v. CITY OF PHILA., et al., Defendants
• Court: U.S. District Court — Eastern District of Pennsylvania

DWAYNE THORPE, Plaintiff v. CITY OF PHILA., et al., Defendants

CIVIL ACTION No. 19-5094

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

AUGUST 31, 2020

MEMORANDUM

PRATTER, J.

Dwayne Thorpe was incarcerated for nearly eleven years for a murder that he did not commit. He alleges that various Philadelphia police officers—Det. James Pitts, Det. Timothy Scally, Det. Angela Gaines, Det. Henry Glenn, Det. John Cummings, Sgt. Frank Hayes, Sgt. Ron McClane, and Lt. Philip Riehl—and the City played a role in advancing the investigatory misconduct that led to his wrongful conviction. Through the filing of two motions to dismiss,¹ the Court has been asked to dismiss all claims against Defendants Gaines, Glenn, Cummings, Hayes, Riehl, and McClane; the Fourteenth Amendment malicious prosecution claim as to Det. Scally; and the Fourteenth Amendment and state-law malicious prosecution claims with respect to the City.

For the reasons discussed below, the Court dismisses (i) Mr. Thorpe's failure-to-intervene claim as to Defendants Gaines, Glenn, Cummings, Hayes, Riehl, and McClane; (ii) the FourteenthAmendment malicious prosecution claim against all properly moving defendants;² (iii) the state malicious prosecution claim with respect to the City; and (iv) the fabrication-of-evidence claim as to Det. Gaines.

BACKGROUND

I. Procedural Background

Mr. Thorpe initiated this action in October 2019 against the City and Defendants Pitts, Scally, Gaines, Glenn, Cummings, Hayes, McClane, and Riehl, all of whom were Philadelphia police officers associated with the homicide investigation at issue. The City and Defendants Gaines, Glenn, Hayes, McClane, Riehl, and Scally filed a motion to partially dismiss Mr. Thorpe's initial complaint for a failure to state a claim. Shortly thereafter, Mr. Thorpe submitted a consent motion to file an amended complaint to name Beverly Cummings as a defendant, in her capacity as the personal representative of John Cummings' estate. The Court granted the consent motion and deemed moot the initial motion to dismiss.

Mr. Thorpe amended complaint pleads the following causes of action:

• Count I: 42 U.S.C. § 1983 Deprivation of Liberty without Due Process of Law and Denial of a Fair Trial by Fabricating Evidence and Withholding Material Exculpatory and Impeachment Evidence against all individual defendants;

• Count II: 42 U.S.C. § 1983 Malicious Prosecution in Violation of the Fourth and Fourteenth Amendments against all individual defendants;

• Count III: 42 U.S.C. § 1983 Civil Rights Conspiracy against all individual defendants;

• Count IV: 42 U.S.C. § 1983 Failure to Intervene against all individual defendants;• Count V: 42 U.S.C. § 1983 Supervisory Liability claim against Sgt. Hayes, Sgt. McClane, and Lt. Riehl;

• Count VI: 42 U.S.C. § 1983 Municipal Liability claim against the City; and

• Count VII: Malicious Prosecution under Pennsylvania state law against all defendants.

In February 2020, the City and Defendants Gaines, Glenn, Hayes, McClane, Riehl, and Scally again moved to partially dismiss the amended complaint. Det. Cummings also filed a motion to dismiss in April 2020. Collectively, the moving defendants request the Court to dismiss (1) all claims against Defendants Gaines, Glenn, Cummings, Hayes, McClane, and Riehl; (2) the Fourteenth Amendment malicious prosecution claim with respect to Det. Scally; and (iii) the Fourteenth Amendment and state-law malicious prosecution claims as to the City. In his response in opposition to the first motion, Mr. Thorpe agreed that his state malicious prosecution claim as to the City should be dismissed. The Court ordered the parties to supplement their briefing regarding their qualified immunity arguments and held oral argument for both motions. As requested during oral argument, the Court also permitted Mr. Thorpe an opportunity to submit supplemental briefing regarding the moving individual defendants' immunity argument as to the state malicious prosecution claim, which was first articulated in Defendants' supplemental briefing.

Rather than joining either motion to dismiss, Det. Pitts filed an answer to the amended complaint.

II. Factual Background³

A. The Shooting of Hamin Span

On July 4, 2008, around 11:00 a.m., thirty-year-old Hamin Span and his fifteen-year-oldbrother, Nyfeese Robinson, were running errands in the Kensington neighborhood of Philadelphia in preparation for an Independence Day block party. On their way to a store, a teenage young man rode up to the pair on a bicycle and shouted to Mr. Span that he wanted "to continue a fight the two had had the day before." Am. Compl. at ¶ 29 (Doc. No. 33). After Mr. Span confronted and walked toward the teen, the teen retreated inside a home. The brothers then walked to the store and conducted their errand. On their way home, the teen again rode his bicycle toward the pair and began shouting to Mr. Span from across the street. The teen pulled out a .32 caliber handgun and fired several shots at the brothers, shooting Mr. Span multiple times. Mr. Span died shortly after the police arrived at the scene. At the time of the shooting, Mr. Thorpe was in a different neighborhood in Philadelphia preparing for another Independence Day block party.

B. Det. Pitts' Pattern of Investigative Misconduct

Mr. Thorpe alleges that the lead detective assigned to the Span shooting, Det. Pitts, engaged in a pattern of fabricating and coercing false statements from witnesses, typically by using physical harm or threats. From early 2007 to late 2013, Det. Pitts engaged in investigative misconduct in at least twelve other investigations or incidents, at least two of which having occurred before this shooting.

C. The Span Shooting Investigation

1. Police Officers Arrive at the Scene

The police officers that arrived at the scene identified three potential eyewitnesses to the shooting, including Mr. Robinson. The eyewitnesses all provided the same description of the shooter: "18-years-old, 5'8" Black male with a thin build, wearing a white T-shirt, blue jean shorts, and gray cap, and riding an aqua-colored bicycle." Id. at ¶ 36. Sgt. Hayes and homicide detectives arrived at the crime scene around 1:00 p.m. After conducting neighborhood interviews, the policelearned that John Bytheway observed Mr. Span arguing with a young Black teenager who rode a bicycle past Mr. Span's house.

2. Mr. Robinson's First Interview

The police officers transported Mr. Robinson to the Homicide Unit where Dets. Pitts, Scally, and Cummings interviewed him. The detectives spoke to Mr. Robinson for a period of time before beginning to type Mr. Robinson's statement, allegedly intentionally failing to record the full interview. According to Mr. Thorpe, the detectives did not ask and/or failed to record answers to standard interview questions, such as the age of and height of the shooter, whether the shooter had any distinctive features, and what Mr. Robinson knew about the dispute he witnessed between Mr. Span and the shooter. Mr. Robinson's statement described the male shooter as "light-brown skin, thin, white tee shirt and a brown hat[.]" Id. at ¶ 43.

Dets. Pitts, Scally, and Cummings also showed Mr. Robinson a photo array, but Mr. Robinson was unable to make an identification. The detectives intentionally failed to record any information concerning the photo array. Upon information and belief, the detectives failed to preserve and/or destroyed information concerning the photo array "because they believed it would be harmful to an eventual prosecution." Id. at ¶ 46.

3. The Third-Floor Rear Apartment

Det. Glenn reported that Mr. Robinson identified 3045 Frankford Avenue as the building he had seen the shooter enter, which was a complex with separate apartment units. Upon information and belief, Dets. Pitts, Glenn, and Cummings misrepresented that residents identified the third-floor rear apartment as the shooter's residence. Based on this misrepresentation, the officers obtained a warrant to search the third-floor rear apartment. On the day of the shooting, Dets. Pitts, Scally, Cummings, Gaines, and Glenn and Sgt. Hayes executed the warrant andrecovered various items, including a .380 caliber handgun and a photograph of two Black young men, one of which being Mr. Thorpe. According to Mr. Thorpe, he did not own any of the physical evidence recovered, nor was any of the physical evidence connected to the shooting.

4. Statement from Senetra Stories

Lt. Riehl and Sgt. McClane directed Det. Pitts to interview Senetra Stones, the leaseholder of the third-floor rear apartment four days after the shooting. Ms. Stones explained that she previously lived in the apartment with her then-boyfriend, Allen Chamberlain, but that she no longer lived there. She identified one of the two men in the photograph as Mr. Thorpe. Dets. Pitts and Scally then showed Ms. Stones a blurry surveillance video from a grocery store in an attempt to have her identify the individual riding a bicycle in the video. Ms. Stones told Dets. Pitts and Scally that she was unable to make an identification and that she had no information about the shooting or the person in the video. Dets. Pitts and Scally allegedly held Ms. Stones at the police station for hours, pressuring her to tell them that Mr. Thorpe was the person in the surveillance video. Det. Pitts repeatedly showed Ms. Stones the photograph and insisted that Mr. Thorpe was the shooter. After Ms. Stones stated that Mr. Thorpe was not the person in the video, Det. Pitts threatened to take away her children and to arrest her for items found in the apartment if she did not identify Mr. Thorpe as the person in the video. Dets. Pitts and Scally then wrote a question-and-answer style statement to make it appear as though Ms. Stones voluntarily stated that the individual in the surveillance video looked like Mr. Thorpe. Ms. Stones did not testify at trial.

5. Statement from Allen Chamberlain

The next day, Sgt. McClane and Lt. Riehl directed...