Holmes v. City of Wilmington et al

Filing 21

MEMORANDUM. Signed by Judge Sue L. Robinson on 2/4/2015. (nmfn)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE

PATRICIA HOLMES,
Plaintiff,

)
)
)
)

v.

)
)
CITY OF WILMINGTON, WILMINGTON)
)
POLICE DETECTIVE KIMBERLY
PFAFF, WILMINGTON POLICE
)
DETECTIVE RANDY HOWELL AND
)
POLICE MEMBERS JOHN DOE
)
NUMBERS ONE THROUGH TEN,
)
)
BADGE NUMBERS UNKNOWN,
)
Defendants.
)

Civ. No. 13-842-SLR

MEMORANDUM
At Wilmington this

~ih day of February, 2015, having reviewed defendants'

motion to dismiss and the papers submitted in connection, the court will grant in part
and deny in part said motion, for the reasons that follow:
1. Introduction. On May 13, 2013, Medford Holmes ("Holmes") filed a
complaint pursuant to 42 U.S.C. §§ 1983, 1985 and 1988, the Fourth, Fifth, Sixth and
Fourteenth Amendments to the United States Constitution, the Delaware Constitution
and under the Delaware State law. (D.I. 1) In response, Kimberly Pfaff ("Detective
Pfaff'), 1 defendant Randy Nowell ("Detective Nowell"), 2 defendant City of Wilmington

1

1J 6)

Detective Pfaff is a detective with the Wilmington Police Department. (D.I. 1 at
She is sued in her individual and official capacities.
2

Detective Nowell is a detective with the Wilmington Police Department. (D.I. 1
at 1J 7) He is sued in his individual and official capacities.

("the City"), and John Doe Number One through Ten ("the Doe defendants") filed a
motion to dismiss. (D.I. 7)
2. Upon discovering that Holmes was no longer living, the court issued an order
to show cause why the complaint should not be dismissed for failure to substitute a
party, pursuant to Fed. R. Civ. P. 25. (D.I. 12) The motion to dismiss was denied
without prejudice to renew. On March 6, 2014, a motion was filed to substitute Patricia
Holmes, personal representative of the estate of Medford Tyree Holmes, 3 for Medford
Holmes as plaintiff in this case. 4 (D.I. 13) On March 28, 2014, the order to substitute
was granted. (D.I. 15) Subsequently, defendants filed a motion to dismiss, 5 which is
fully briefed and before the court. (D.I. 17, 18, 19, 20)
3. Background. 6 On April 27, 2011 at approximately 3:30 p.m., Antonio Smith
("Smith") was outside his residence located at 2806 North Jefferson Street, Wilmington
Delaware. (D.I. 1) Smith was conversing with a friend, Abdullah Talib-Din ("Talib-Din").
A man ("the shooter") approached Smith and Talib-Din from the direction of 29th Street
and fired a .40 caliber handgun, first, at Smith and, then, at Talib-Din. Smith was fatally

3

0n March 4, 2014, the Register of Wills for New Castle County, Delaware
certified Patricia Holmes as the personal representative of the estate of Medford Tyree
Holmes. (D.I. 13 at Ex. C)
4

The attached suggestion of death reflects that Medford Holmes died on August
13, 2013. (D.I. 13 at Ex. B)
5

Defendants' first motion to dismiss was dismissed without prejudice to renew as
part of the order to show cause dated February 7, 2014. (D.I. 12)
6

The following facts are set forth in plaintiff's complaint and are taken as true, as
they must be when considering a motion to dismiss. Fowler v. UPMC Shadyside, 578
F.3d 203, 210 (3d Cir. 2009).

2

wounded. Although shot multiple times, Talib-Din was transported to a hospital and
survived.
4. On the evening of April 271h, Detective Pfaff and Detective Nowell
(collectively, "detectives") interviewed several witnesses. One of those interviewed
("Witness 1"), suffers from Expressive Aphasia, a condition caused by head trauma
attributable to a prior automobile accident. As a result of this condition, Witness 1 is
unable to write and has severely limited verbal communication skills. Witness 1
expresses himself through physical movements, including hand gestures, head
gestures and facial expressions, as well as through noises.
5. According to Detective Nowell, 7 Witness 1 indicated that he observed the
shooting from inside his home, which is located fifty yards away from the corner. There
is an evergreen tree and several houses in between the location of the shooting and
Witness 1's house. After the shooting, Witness 1 went to the front of his house where
he saw the shooter for approximately 30 seconds (from 20 feet away), as the shooter
fled around the corner.
6. Although Detective Nowell claimed that Witness 1 had an unobstructed view
of the scene, Witness 1 did not provide any descriptive information of the shooter.
Living at home with Witness 1 were his parents, ("Witness 2") and ("Witness 3").
Witness 2 gave defendant Nowell a description of the shooter. Two weeks later, on
May 11, 2011, the detectives developed Holmes as a suspect.

7

Detective Nowell testified at the hearing conducted by the Delaware Superior
Court ("state court") on Holmes' motion to suppress. State v. Holmes, 2012 WL
4086169 (Del. Super. August 23, 2012) (unreported). The complaint includes direct
references and quotes from the state court's decision.

3

7. On May 12, 2011, the detectives created a photo lineup that included Holmes
(in the third position) and returned to present the array to the three witnesses. The
detectives took each witness, one at a time, into a separate room to review the photo
line-up. Detective Pfaff was equipped with an audio recorder to record the interviews.
8. After speaking with Witness 2, Detective Pfaff showed the photo array to
Witness 1. 8 The detectives claimed that Witness 1 became visibly upset when viewing
the array, however, Witness 1 did not identify Holmes as the shooter. (D.I. 1 at~~ 2627)
9. The detectives segregated and showed Witness 3 the photo lineup. Witness
3 was unable to identify anyone in the array. Next, the detectives showed the array to
Witness 2, who identified the individual in position 4 (not Holmes) as the shooter. (Id. at
~~

28-29)
10. Witness 3 ultimately identified the person in position 2 (not Holmes) as the

shooter. In response, Detective Pfaff stated: "[Y]eah, well no, that's not the one that
we're looking at, no but I appreciate .... " (Id.

at~

30; Holmes, at *3-4) Despite the

fact that Witnesses 2 and 3 failed to identify Holmes, the detectives, along with
Witnesses 2 and 3, encouraged Witness 1 to identify the shooter. (D.I. I at~ 31)
11. An unidentified male then entered the house and conversed with Detective
Pfaff, leaving Detective Nowell alone with the witnesses. With the recorder out of

8

The state court noted that "[i]t strains credulity to believe that, in less than a
second, Detective Pfaff ceased speaking with Witness 2, maneuvered Witness 1 into a
separate room and presented Witness 1, with the photographic array." (D.I. 1 at~ 25,
quoting State v. Holmes, 2012 WL 4086169, at *fn.3)

4

range, Detective Nowell held the photo array up to his chest. Witnesses 2 and 3 were
standing behind Detective Nowell, unable to see the photo array.
12. Detective Nowell claims that Witness 1 walked up to the array and pointed
to Holmes. Despite this positive identification of Holmes as the shooter, Detective
Nowell did not have Witness 1 sign the photographic lineup because of "his physical
limitations." (D.I. 1 at~ 37)
13. On May 13, 2011, Holmes was arrested and charged with murder first
degree, attempted murder first degree, two counts of possession of a firearm during the
commission of a felony, and possession of a firearm by a person prohibited. See State
v. Holmes, 2012 WL 4086169. Holmes maintained his innocence and filed, inter alia, a

motion to suppress Witness 1's out-of-court identification of Holmes as the shooter.
Holmes argued that the photographic lineup shown by Detectives Pfaff and Nowell was
unduly suggestive and that, under the totality of the circumstances, the identification
was unreliable. Id. at *1.
14. An evidentiary hearing was conducted, with Detectives Pfaff and Nowell
testifying. While the motion to suppress ("suppression decision") was denied, the court
observed that the presentation of the photographic array to Witness 1, in the presence
of or close proximity to, the other witnesses was impermissibly suggestive. Id. at *10.
15. Holmes "always maintained his innocence" and proceeded to trial. (D.I. 1 at
~

1) The prosecution presented no physical evidence tying Homes to the crime. The

prosecution relied entirely upon identifications made by Talib-Din and Witness 1 (who
did identify Holmes at trial). Talib-Din originally told detectives that he did not recognize
the shooter, but later identified another individual as the shooter. (Id.

5

at~

2) After

detectives told Talib-Din that he would be prosecuted as a felon in possession for the
firearm he was carrying at the time he was shot, Talib-Din struck a deal and identified
Holmes from a photo lineup of six individuals that the detectives had prepared.
16. The jury was unable to reach a verdict on the charges. While the
prosecution was preparing to retry the case, Talib-Din recanted his identification of
Holmes as the shooter. "With nothing left, the State dropped all charges" and Holmes
was released. (Id.)
17. Subsequently, this action was instituted based on the allegations that
defendants violated Holmes' right to be free from: unreasonable searches and
seizures; excessive force; false arrest; and false imprisonment. Plaintiff alleges that
defendants: maliciously prosecuted and verbally abused Holmes; deprived him of due
process and equal protection under the law; and violated Holmes' right "to be secure in
ones' person and property." (D.I. 1 at 1f1f 38-40) Plaintiff claims that all the defendants
acted in concert, and as part of a conspiracy, to deprive Holmes of his rights under the
First, Fourth, Six and Fourteenth Amendments, as well as 42 U.S.C. §§ 1983 and 1985.

(Id. at 1f 43)
18. Plaintiff asserts that the City has encouraged, tolerated, ratified, and has
been deliberately indifferent to, certain patterns, practices and customs of police
officers related to: (1) the abuse of police powers; (2) following constitutional policies
and procedures regarding the use of photographic lineups; (3) maintaining proper police
reports, including the identity of police eyewitness information; and (4) the failure of
police officers to prevent, deter, report or take action against the type of unlawful
conduct alleged herein. (Id. at 1f 41) Plaintiff further alleges, inter alia, that the City

6

failed to train, supervise, investigate and discipline police officers, resulting in the
violation of Holmes' rights. (Id.

at~

42)

19. Plaintiff also contends that defendants' conduct constitutes the following
state law claims: (1) assault and battery; (2) false imprisonment; (3) intentional infliction
of emotional distress; (4) interference with State constitutional rights; (5) negligence; (6)
gross negligence; and (7) negligent hiring, training, retention, and supervision.
20. Standard of review. A motion filed under Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of a complaint's factual allegations. Bell At/. Corp. v.

Twombly, 550 U.S. 544, 555 (2007); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d
Cir.1993). A complaint must contain "a short and plain statement of the claim showing
that the pleader is entitled to relief, in order to give the defendant fair notice of what the
... claim is and the grounds upon which it rests." Twombly, 550 U.S. at 545 (internal
quotation marks omitted) (interpreting Fed. R. Civ. P. 8(a)). Consistent with the
Supreme Court's rulings in Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the
Third Circuit requires a two-part analysis when reviewing a Rule 12(b)(6) motion.

Edwards v. A.H. Cornell & Son, Inc., 610 F.3d 217, 219 (3d Cir. 2010); Fowlerv. UPMC
Shadyside, 578 F.3d 203, 210 (3d Cir. 2009).
21. First, a court should separate the factual and legal elements of a claim,
accepting the facts and disregarding the legal conclusions. Fowler, 578 F.3d. at
210-11. Second, a court should determine whether the remaining well-pied facts
sufficiently show that the plaintiff "has a 'plausible claim for relief.'" Id. at 211 (quoting

Iqbal, 556 U.S. at 679). As part of the analysis, a court must accept all well-pleaded

7

factual allegations in the complaint as true, and view them in the light most favorable to
the plaintiff. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Christopher v. Harbury,
536 U.S. 403, 406 (2002); Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir.
2008). In this regard, a court may consider the pleadings, public record, orders,
exhibits attached to the complaint, and documents incorporated into the complaint by
reference. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007);
Oshiver v. Levin, Fishbein, Sedran & Berman, 38 F.3d 1380, 1384-85 n.2 (3d Cir.
1994).
22. The court's determination is not whether the non-moving party "will ultimately
prevail" but whether that party is "entitled to offer evidence to support the claims."
United States ex rel. Wilkins v. United Health Grp., Inc., 659 F.3d 295, 302 (3d Cir.
2011 ). This "does not impose a probability requirement at the pleading stage," but
instead "simply calls for enough facts to raise a reasonable expectation that discovery
will reveal evidence of [the necessary element]." Phillips, 515 F.3d at 234 (quoting
Twombly, 550 U.S. at 556). The court's analysis is a context-specific task requiring the
court "to draw on its judicial experience and common sense." Iqbal, 556 U.S. at
663-64.
23. Discussion. 9

Defendants have moved to dismiss the allegations, on

various grounds, including failure to state any facts to support the claims. In response,
9

Consistent with plaintiff's request, the following federal claims are dismissed
without prejudice to renew: (1) equal protection; (2) verbal abuse; and (3) conspiracy.
(D.I. 19 at n.1 & n. 3) Without objection by the plaintiff, the court will also dismiss the
following: (1) all state law claims against the City; and (2) state law claims against the
individual defendants for intentional infliction of emotional distress and for simple
negligence. (Id.)
8

plaintiff opposes the arguments and provides additional information in support of some
claims. Plaintiff also seeks the opportunity to amend the complaint to rectify any
deficiencies and notes that "[w]hen the evidentiary record is developed during
discovery, there will be no question as to the validity of plaintiff's claims." (D.I. 19 at n.
5).

24. Excessive force. Defendants contend that the excessive force claim fails
because plaintiff has not alleged any specific facts to support the allegations. (D.I. 18)
Plaintiff explains that the excessive force claim is based on the fact that Holmes was
incarcerated for two years as the result of being arrested and, therefore, was touched in
violation of the Fourth Amendment. (D.I. 19)
25. Excessive force claims arising in the context of an arrest or investigatory
stop of a free citizen are most properly characterized as one invoking the protections of
the Fourth Amendment and a defendant's conduct must be analyzed under an objective
reasonableness standard. Graham v. Connor, 490 U.S. 386, 394 (1989); Curley v.
Klem, 499 F.3d 199, 206 (3d Cir.2007). To allege a§ 1983 claim for the use of

excessive force, a plaintiff must show that a "seizure" occurred, and that said seizure
was unreasonable. Kopec v. Tate, 361 F.3d 772, 776 (3d Cir. 2004). A "seizure"
occurs for Fourth Amendment purposes when a government official has, "by means of
physical force or show of authority, ... in some way restrained [the person's] liberty."
Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968); Berg v. County of Allegheny, 219 F.3d 261,

269 (3d Cir.2000).
26. "[l]n a case where police effect an arrest without probable cause or a

9

detention without reasonable suspicion, but use no more force than would have been
reasonably necessary if the arrest or the detention were warranted, the plaintiff has a
claim for unlawful arrest or detention but not an additional claim for excessive force."

Cortez v. McCauley, 478 F.3d 1108, 1126 (10 1h Cir. 2007). A claim for excessive force,
which is merely a concomitant to a contested arrest but is not based on some actual
allegation of unreasonable force, must be dismissed. Van Brackle v. Pa Parole Bd.,
1996 WL 544229 at *3 (E.D. Pa. Sept. 26, 1996).
27. Although asserting that the act of arresting and imprisoning Holmes for
crimes that he did not commit constitutes excessive force, plaintiff has failed to allege
any facts suggesting that defendants used unreasonable force on Holmes, at any time.
Despite plaintiff's reliance on the Third Circuit's model jury instructions on the topic of
"seizure," plaintiff has not presented any authority to demonstrate that a seizure, alone,
amounts to excessive force. Likewise, the court cannot locate any authority to support
an excessive force claim based on facts similar to those at bar.
28. To the extent plaintiff avers that the force applied was excessive because
there was insufficient probable cause to arrest Holmes due to defendants' misconduct,
the Third Circuit has rejected attempts to "bootstrap excessive force claims and
probable cause challenges." Snell v. City of York, 564 F.3d 659, 672 (3d Cir. 2009);

Bodine v. Warwick, 72 F.3d 393, 400 & n.10 (3d Cir. 1995)("merely because a person
has been falsely arrested does not mean that excessive force has been used."). Since
excessive force and false arrest inquiries are distinct, demonstrating a lack of probable
cause to effect an arrest does not demonstrate an excessive force claim, and viceversa. Snell v. City of York, 564 F. 3d at 400.
10

29. Malicious prosecution. Defendants argue that plaintiff's claim for
malicious prosecution brought pursuant to § 1983 must be dismissed because, under
Delaware state law, it does not survive Holmes' death. (D.I. 18) Plaintiff counters that
the federal and state malicious prosecution claims are separate and distinct causes of
action, the former of which is not barred by Delaware's survival statute, 10 Del. C. §
3701. (D.I. 19)
30. Federal law does not provide for "the survival of civil rights actions under§
1983 upon the death of either the plaintiff or the defendant." Moor v. Alameda County,
411 U.S. 693, 703 n. 14 (1973). The Supreme Court has concluded that the state
survival statutes can fill this gap through 42 U.S.C. § 1988. Robertson v. Wegmann,
436 U.S. 584 (1978). Under§ 1988, state statutory law provides the principal reference
point in determining survival of civil rights actions. Id. at 589-90. Delaware's survival
statute provides, in pertinent part, "[a]ll causes of action, except actions for defamation,
malicious prosecution, or upon penal statutes, shall survive to and against the
executors or administrators of the person to, or against, whom the cause of action
accrued." See 10 Del. C. § 3701.
31. To prevail on a malicious prosecution claim pursuant to§ 1983, a plaintiff
must show that: (1) the defendant initiated a criminal proceeding; (2) the criminal
proceeding ended in plaintiff's favor; (3) the proceeding was initiated without probable
cause; (4) the defendant acted maliciously or for a purpose other than bringing the
plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the

11

concept of seizure as a consequence of a legal proceeding. "10 McKenna v. City of
Philadelphia, 582 F.3d 447, 461 (3d Cir. 2009).

32. While defendants contend that the survival statute clearly applies, the court
is unconvinced, and, in the absence of persuasive authority, will not dismiss the claim at
this juncture. There remains, however, a problem with the second element of a
malicious prosecution claim, "favorable termination." According to the complaint, the
"State dropped all charges" against Holmes after Talib-Din recanted his identification.
(D.I. 1 at 1f1) The record does not reflect the manner in which the State "dropped" or
nolle prossed the charges against Holmes. Under Third Circuit precedent, a nolle
prosequi satisfies the favorable termination requirement only if the record indicates the
reason for the entry of the nolle prosequi. DiFronzo v. Chiovero, 406 Fed. Appx. 605,
608-09 (3d Cir. 2011) (unpublished); Glover v. City of Wilmington, 966 F. Supp.2d 417,
426 (D. Del. 2013).
33. Procedural due process. The procedural component of the Due Process
Clause of the Fourteenth Amendment provides that a state shall not "deprive any
person of life, liberty, or property, without due process of law." U.S. Const. amend. XIV;
Robb v. City of Philadelphia, 733 F.2d 286, 292 (3d Cir.1984). To establish a

10

ln Delaware, a plaintiff must allege the following common law elements: (1)
prior institution or continuation of some regular judicial proceedings against plaintiff in
this action; (2) such former proceedings must have been by, or at the instance of, the
defendant in this action; (3) the former proceedings must have terminated in favor of
the plaintiff herein; (4) there must have been malice in instituting the former
proceedings; (5) there must have been a lack of probable cause by the institution of the
former proceedings; and (6) there must have been injury or damage to plaintiff from the
former proceedings." Wiers v. Barnes, 925 F. Supp. 1079, 1093 (D. Del. 1996).

12

procedural due process claim under§ 1983, a plaintiff must prove: (1) a deprivation of
an individual interest encompassed by the Fourteenth Amendment's protection of life,
liberty, or property; and (2) that the procedures available did not provide due process of
law. Hill v. Borough of Kutztown, 455 F.3d 225, 233-34 (3d Cir. 2006).
34. Plaintiff's procedural due process claim is predicated on the allegation that
defendants tampered with exculpatory evidence by fabricating "eye witness"
identifications. (D. I. 19 at 10) Although plaintiff has not alleged specific facts to support
the claim, the court will grant leave to amend to correct this deficiency. See, e.g.,

Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 252 (3d Cir.
2007); Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v.

Fauver, 213 F.3d 113, 116-17 (3d Cir. 2000). "Dismissal without leave to amend is
justified only on the grounds of bad faith, undue delay, prejudice, or futility." Alston v.

Parker, 363 F.3d 229, 236 (3d Cir. 2004). There is no evidence that plaintiff has acted
improperly or in bad faith, and plaintiff has not yet amended her pleading. The court
concludes that at this early stage, and based on the incomplete record currently before
it, plaintiff should be granted leave to amend.

See, e.g., Mallinckrodt Inc. v. E-Z-EM

Inc., 671 F. Supp.2d 563, 567-68 (D. Del.2009) ("The Third Circuit has adopted a
liberal policy favoring the amendment of pleadings to ensure that claims are decided on
the merits rather than on technicalities.").
35. Substantive due process. Plaintiff avers that Holmes' arrest violated his
constitutional rights under the Fourth and Fourteenth Amendments. Defendants move
to dismiss this claim, arguing that the "more-specific-provision rule" bars the substantive

13

due process claims. The court agrees.
36. In establishing the "more-specific-provision rule," the Supreme Court has
held that "if a constitutional claim is covered by a specific constitutional provision, such
as the Fourth or Eighth Amendment, the claim must be analyzed under the standard
appropriate to that specific provision, not under the rubric of substantive due process.

11

United States v. Lanier, 520 U.S. 259, 272 n. 7 (1997); Betts v. New Castle Youth
Development Center, 621 F.3d 249, 260 (3d Cir. 2010). Considering that issues related
to the arrest of Medford Holmes fit within the purview of the Fourth Amendment, the
"more-specific-provision rule" forecloses plaintiffs substantive due process claim.
37. False Arrest and False Imprisonment. "To state a claim for false arrest
under the Fourth Amendment, a plaintiff must establish: (1) that there was an arrest;
and (2) that the arrest was made without probable cause.

11

James v. City of

Wilkes-Barre, 700 F.3d 675, 680 (3d Cir.2012); Small v. Herrera,_ F. Supp. 2d _ ,
2014 WL 3374208, at *2 (D. Del. 2014). A claim for false imprisonment arises when a
person is arrested without probable cause and is subsequently detained pursuant to
that unlawful arrest. See Adams v. Selhorst, 449 Fed. Appx. 198, 201 (3d Cir.2011) (per
curiam) (unpublished) (citing Groman v. Township of Manalapan, 47 F.3d 628, 636 (3d
Cir.1995). "False arrest and false imprisonment overlap; the former is a species of the
latter." Wallace v. Kato, 549 U.S. 384, 388 (2007).
38. In opposition papers, plaintiff states that a grand jury indictment procured by
fraud, perjury or other corrupt means vitiates the probable cause required for a lawful
arrest and imprisonment. (D.I. 19) According to plaintiff, the State had no physical

14

evidence against Holmes and relied exclusively on the eye witness identifications made
by Witness 1 and Talib-Din in presenting the case to the grand jury. These
identifications, however, were tainted by defendants' misconduct. Plaintiff postulates
that, because Witness 1 did not sign the photo array (after allegedly identifying Holmes)
and did not testify at trial, the identification was fatally flawed and false. Moreover,
while Talib-Din was initially unable to identify the shooter, he later identified an
individual other than Holmes. After detectives threatened to bring charges against him,
Talib-Din identified Holmes and testified, accordingly, at trial. Following the trial, TalibDin recanted the identification, resulting in the charges being dismissed against
Holmes.
39. The court finds these allegations insufficient to pass muster under Twombly,
as plaintiff has not identified which witness( es) perjured themselves or the substance of
the alleged perjury before the grand jury. See Rose v. Bartle, 871 F.2d 331, 353-354
(3d Cir. 1989). Plaintiff will be afforded an opportunity to amend the complaint in this
regard.
42. Collateral Estoppel. Defendants contend that collateral estoppel applies to
preclude plaintiff's claims for violations of due process, unreasonable search and
seizure, false imprisonment, equal protection and malicious prosecution, all grounded in
the manner the detectives allegedly handled the photographic lineup they presented to
Witness 1. Holmes previously raised the issue that the lineup violated his substantive
due process rights, and the Delaware Superior Court already ruled that, while the
proximity of the witnesses to each other during the display of the photo array was
unnecessarily suggestive, "all other aspects of the identification procedure comport with
15

due process and do not raise a substantial likelihood of irreparable misidentification."

State v. Holmes, 2012 WL 4086169, at *13. Defendants also assert that Holmes had
the opportunity, but did not, present any additional constitutional issues in the
underlying criminal case.
41. Under the doctrine of collateral estoppel, once a court has decided an issue
of fact necessary to its judgment, that decision may preclude re-litigation of the issue in
a suit on a different cause of action involving a party to the first case. Allen v. Mccurry,
449 U.S. 90, 94 (1980). A defendant in a§ 1983 action may assert the collateral
estoppel effect of issues decided in state criminal proceedings against the plaintiff.

Looney v. City of Wilmington, 723 F. Supp. 1025, 1032 (D. Del. 1989). In considering
the collateral estoppel effect of a state proceeding, a federal court must apply the law of
the state where the criminal proceeding took place and must also "ascertain whether
the party against whom the estoppel is asserted had a full and fair opportunity to litigate
the issue decided in the state court." Anela v. City of Wildwood, 790 F.2d 1063, 1068
(3d Cir. 1986).
42. The Delaware courts apply a four-part test for collateral estoppel analysis.

Taylor v. State, 402 A. 2d 373, 375 (1979). "Collateral estoppel requires that (1) a
question of fact essential to the judgment (2) was litigated (3) and determined (4) by a
valid and final judgment." Looney, 723 F. Supp. at 1032. 11 Delaware does not require
11

1n Looney, plaintiff was charged with several Delaware state crimes.
Subsequently, plaintiff was convicted of menacing and resisting arrest by the Municipal
Court for the City of Wilmington and appealed those convictions to the Delaware
Superior Court. The Superior Court dismissed plaintiff's appeal of the menacing
conviction due to lack of subject matter jurisdiction for crimes with a fine of $100 or
below (menacing), where there is no right to an appeal. Id. at 1028. The resisting
16

identity of parties so long as the party against whom collateral estoppel is asserted was
a previous party. Columbia Gas. Co. v. Playtex FP, Inc., 584 A.2d 1214, 1217 (1991).
The application of the doctrine of collateral estoppel is within the "broad discretion" of
the trial court. Parkland Hosiery Co., Inc. v. Shore, 439 U.S. 322, 331 (1979).
43. According to the complaint, after the denial of Holmes' motion to suppress,
the matter proceeded to trial. The jury was unable to reach a verdict on the charges.
While the prosecution was preparing to retry the case, Talib-Din recanted his
identification of Holmes as the shooter. "With nothing left, the State dropped all
charges" and Holmes was released. (D.I. 1 at~ 2) Accordingly, there was no
conviction or judgment entered against Holmes. There is nothing of record to evince
that Holmes appealed or attempted to appeal the suppression hearing or matters
related to the criminal prosecution. 12 In light of the absence of a final judgment, the
court concludes that collateral estoppel does not operate to bar review of Holmes'
claims related to the photographic line-up.

arrest charge, however, proceeded to a jury trial where plaintiff was found not guilty.
Plaintiff then brought a § 1983 action against the City and two police officers contending
that defendants violated his Fourth and Fourteenth Amendment Rights by conducting
an illegal search of his building and using excessive force against his person. Id. at
1027. Plaintiff also filed a state law claim for battery. Defendants moved for summary
judgment, arguing that the collateral estoppel effect of plaintiff's menacing conviction
barred plaintiff from litigating the issue of excessive force, which formed one of the
grounds of relief. (Id. at 1032) Plaintiff asserted, inter alia, that he did not have a full
and fair opportunity to litigate the menacing conviction because the Superior Court
dismissed the appeal. The court disagreed, concluding that plaintiff could have
attempted to obtain a writ of certiorari from the Delaware Supreme Court, and his failure
to do so did not preclude the application of collateral estoppel.
12

Generally, a criminal defendant cannot appeal a suppression decision until the
conclusion of a trial in which there is a finding of guilt.
17

44. To that end, the court is unpersuaded by defendants' contention that
Holmes could have petitioned the Supreme Court for certiorari to review the
suppression decision. With the exception of Looney, the cases relied upon by
defendants each had a final judgment of record. 13 The court declines to extend the
Looney holding to the facts at bar, as there has been no showing that there was any

appeal or writ available for Holmes to challenge the suppression decision.

13

1n Allen v. Mccurry, 449 U.S. 90 (1980), prior to the commencement of trial, the
Missouri State Court denied plaintiffs motion to suppress evidence. The plaintiff was
subsequently convicted, which was later affirmed on appeal. Subsequently, the plaintiff
brought a§ 1983 action against arresting officers and others claiming, among other
things, an allegedly unconstitutional search and seizure. The court granted summary
judgment for the defendants, holding that collateral estoppel prevented the plaintiff from
re-litigating the search and seizure question already decided against him in the state
court. The Court of Appeals reversed and remanded, finding that the § 1983 suit was
the plaintiffs only route to a federal forum for his constitutional claims since he could
not raise them through federal habeas corpus. The Supreme Court reversed and
remanded, ruling that collateral estoppel could apply to § 1983 suits, but did not decide
"how the collateral estoppel-doctrine ... should apply" in that case. In Brown v. State,
721 A.2d 1263, 1264-65 (Del. 1998), a federal grand jury returned an indictment
charging Brown with several offenses. Prior to trial, he moved to suppress evidence
seized pursuant to an illegal search and seizure. The motion was denied and Brown
was subsequently convicted and sentenced to 30 years in prison. His conviction and
sentence were affirmed on appeal. Brown later filed a petition for return of property in
Delaware Superior Court. Following a trial, the Superior Court denied Brown's petition,
finding that the State had probable cause to seize the money and that Brown had not
rebutted that presumption. The court also found that collateral estoppel prevented
Brown from rearguing the illegal search and seizure claims raised during the criminal
trial. The Delaware Supreme Court affirmed, finding that "Brown had ample opportunity
and motive to assert these claims at the suppression hearing. He was ably represented
by counsel and cannot use this Court in a back-door attempt to assert claims that he
did not address in the [Delaware] District Court in the first instance." In Brawley v.
State, 741A.2d1025 (1999), Brawley was charged with Delaware State crimes and
filed a motion to suppress. The Superior Court denied the motion and, subsequently,
Brawley entered a guilty plea to one of the charges; two other charges were nolle
prossed. Brawley filed petitions for return of property seized pursuant to an illegal
search. The Superior Court denied the petitions, finding that collateral estoppel barred
Brawley from questioning the legality of the search ad seizure in a civil action and could
not use the civil action to re-litigate the same issues.
18

45. The City and municipal liability. A municipality may only be held liable
under § 1983 when the "execution of a government's policy or custom ... inflicts the
injury." Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990). A
government policy is established by a "decision-maker possessing final authority," and
a custom arises from a "course of conduct ... so permanent and well settled as to
virtually constitute law." Id. (citing Monell v. Department of Social Services of the City of
New York, 436 U.S. 658 (1978)). Accordingly, a plaintiff seeking to recover from a

municipality must: (1) identify an allegedly unconstitutional policy or custom; (2)
demonstrate that the municipality, through its deliberate and culpable conduct, was the
"moving force" behind the injury alleged; and (3) demonstrate a direct causal link
between the municipal action and the alleged deprivation of federal rights. Board of
County Comm'rs v. Brown, 520 U.S. 397, 404 (1997). Considering that defendants

have not specifically moved to dismiss these claims, the court will not conduct a
Fed.R.Civ.P. 12 (b)(6) analysis.
46. State law claims. Defendants move to dismiss the state law claims for lack
of subject matter jurisdiction. Pursuant to the pendent jurisdiction doctrine, a federal
court has the authority to hear a plaintiffs state law claim when the claim emanates
from the same common nucleus of operative facts as the federal claim. UM. W. v.
Gibbs, 383 U.S. 715, 725 (1966). Considering that not all of the federal claims have

been dismissed and plaintiff has been given an opportunity to amend the complaint,
dismissal based on the lack of jurisdiction is, at this juncture, denied.
47. Conclusion. For the reasons stated, defendants' motion to dismiss is

19

granted in part and denied in part. An appropriate order shall issue.

20