COLLINSON v. THE CITY OF PHILADELPHIA et al

Filing 41

MEMORANDUM AND/OR OPINION SIGNED BY HONORABLE C. DARNELL JONES, II ON 6/9/15. 6/10/15 ENTERED AND COPIES E-MAILED.(ti, ) (Main Document 41 replaced on 6/10/2015) (ti, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
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BRENT COLLINSON,
Plaintiff,
v.
CITY OF PHILADELPHIA et al.,
Defendants.
Jones, II

J.

CIVIL ACTION
NO. 12-6114

June 9, 2015
Memorandum

Brent Collinson (“Plaintiff”) sued the City of Philadelphia (“the City”), Lieutenant
Michael Gross (“Lt. Gross”), Police Officer David Graner (“P.O. Graner”), Police Officer
Salvatore Maiorano (“P.O. Maiorano”), Corporal Young (“Cpl. Young”), Police Officer
McGrath (“Sgt. McGrath”), Police Officer Juan Ramirez (“P.O. Ramirez”), Police Officer
Shawnier Collier (“P.O. Collier”), Police Officer Kenneth Taylor, Jr. (“P.O. Taylor”), Police
Sergeant Anthony Burton (“Sgt. Burton”), Police Officer John Crichton (“P.O. Crichton”). (Dkt
No. 12 [hereinafter AC].)
Defendants moved for summary judgment on all claims against the City of Philadelphia
and on all section 1983 claims against Lt. Gross, Sgt. McGrath, Sgt. Burton, Cpl. Young, P.O.
Graner, P.O. Maiorano, P.O. Taylor, and P.O. Collier. (Dkt No. 39 [hereinafter MSJ].) Upon
consideration of Defendants’ Motion for Partial Summary Judgment, and Plaintiff’s Response,
(Dkt No. 40), the Court orders said Motion granted in part and denied in part as described herein.

I.

Standard of Review

Under Federal Rule of Civil Procedure 56(a), a court shall grant summary judgment “if
the pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine [dispute] as to any material fact and that the
moving party is entitled to a summary judgment as a matter of law.” Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In order to defeat a motion for summary
judgment, disputes must be both (1) material, meaning they concern facts that will affect the
outcome of the issue under substantive law, and (2) genuine, meaning the evidence must be such
1

that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Summary judgment is mandated “against a party who fails to
make a showing sufficient to establish the existence of an element essential to that party’s case,
and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322-23. A
dispute is genuine if the fact finder could reasonably return a verdict in favor of the non-moving
party with respect to that issue. Anderson, 477 U.S. at 248. In reviewing a motion for summary
judgment, the court “does not make credibility determinations and must view facts and
inferences in the light most favorable to the party opposing the motion.” Seigel Transfer, Inc. v.
Carrier Express, Inc., 54 F.3d 1125, 1127 (3d Cir. 1995).
II.

Background

In this consolidated case, Plaintiff alleges Defendants violated his civil rights through
Philadelphia police officers’ use of excessive force on Plaintiff and by the Philadelphia Police
Department’s implementation of a policy that leads to excessive force and causes a systemic
failure to train, supervise, and/or discipline police officers regarding officers’ use of force.
Plaintiff further claims that this policy violates his federal civil rights in that it interferes with his
ability to pursue both his defense in his criminal case and his section 1983 claims. Plaintiff also
brings state law claims. The Court draws all reasonable inferences in favor of Plaintiff. The
Court further notes where salient facts remain disputed.
a. Parties
Plaintiff is a resident and citizen of Pennsylvania. (AC ¶ 6.) Defendant City of
Philadelphia (“the City”) oversees the Philadelphia Police Department and was the employer of
all officer Defendants in this case. (AC ¶ 7.) Named Police Defendants were all working for the
Philadelphia Police Department during the relevant time period. (AC ¶¶ 9-18.)
b. Underlying Incident
On September 5, 2009, at approximately 2:25 am, Plaintiff was released from police
custody by P.O. Crichton and P.O. Graner. (Defs’ Statement of Undisputed Material Facts, Dkt
No. 39-1 [herainfter Defs’ SOF] ¶ 1; Pl.’s Response to Defs’ Statement of Undisputed Material
Facts, Dkt No. 40 [hereinafter Pl. Resp. to Defs’ SOF] ¶ 1; Complaint of Incident Report, Dkt
No. 39, Ex. 1 [hereinafter Incident Rpt]; 1 Philadelphia Police Dep’t Investigation Rpt, Dkt No.
1

The Court notes that this attachment is entirely illegible. Given that the Court cannot
independently review it, the Court will only cite to it to the extent that both parties agreed to its contents.
2

40, Ex. D [hereinafter Investigation Rpt].) During and after his release from police custody,
Plaintiff interacted with P.O. Crichton. (Defs’ SOF ¶ 2; Pl. Resp. to Defs’ SOF ¶ 2; Brent
Collinson Dep., Jan. 19, 2012, Dkt No. 40, Ex. A [hereinafter Collinson Dep.] 25:16-26:24; John
Crichton Dep., Jan. 13, 2012, Dkt No. 40, Ex. R [hereinafter Crichton Dep.] 9:2-12:22, 37:739:12, 42:3-44:19, 54:22-55:12, 56:3-60:7; David Graner Dep., Dkt No. 40, Ex. S [hereinafter
Graner Dep] 13:10-17:8, 29:30-31:15, 45:17-52:4.)
What transpired between P.O. Crichton and Plaintiff after Plaintiff’s initial release and
prior to his eventual arrest remains disputed. As a result of this interaction, Plaintiff suffered a
left elbow fracture. (Defs’ SOF ¶ 2; Pl’s Resp. to Defs’ SOF ¶ 2.)
The police paperwork regarding this incident between P.O Crichton and Plaintiff
indicates only P.O. Graner as a witness to the incident. (Investigation Rpt; (Philadelphia Police
Dept Use of Force Rpt Regarding John Crichton, Dkt No. 40, Ex. E; (Philadelphia Police Dept
Use of Force Rpt Regarding David Graner, Dkt No. 40, Ex. G; Philadelphia Police Dept Arrest
Rpt, Dkt No. 40, Ex. K [hereinafter Arrest Rpt]; Investigation Interview Record, Dkt No. 40, Ex.
M [hereinafter Invest. Interview Record.] at 1-2.) In the earlier, related case, Defendants City of
Philadelphia and P.O. Crichton identified P.O. Crichton and P.O. Graner as the only witnesses in
both their initial disclosure and in their responses to Plaintiff’s first set of interrogatories. (Defs’
Initial Disclosures, Case No. 11-3905, Dkt No. 40, Ex. N, ¶ 1; Defs’ Resp. to Pl’s
Interrogatories, Dkt No. 40, Ex. P, ¶ 1.) Moreover, in his initial deposition, P.O. Crichton stated
that he did not think that there were any other witnesses to the incident. (Crichton Dep. 30:432:11.)
However, in fact, several Philadelphia Police Officers observed the incident between P.O.
Crichton and Plaintiff, including Lt. Gross, P.O. Collier, and P.O. Taylor. (Defs’ SOF ¶ 4; Pl’s
Resp. to Defs’ SOF ¶ 4; Investigation Rpt; Michael Gross Dep., Sept. 20, 2012, Dkt No. 40, Ex.
F [hereinafter Gross Dep.] 10:9-11, 10:19-13:22, 22:3-25:23, 39:20-42:1, 59:4-14; Shawneir
Collier Dep., Sept. 20, 2012, Dkt No. 40, Ex. J [hereinafter Collier Dep.] 10:11-13:18; Crichton
Dep. 9:12-10:9.) Lt. Gross witnessed the whole interaction, including the arrest. (Gross 11:412:7.) P.O. Collier and P.O. Taylor did not witness any physical interaction between Plaintiff and
P.O. Crichton and did not witness the arrest. (Collier Dep. 12:1-17.)

3

It remains disputed why these officers did not appear on earlier paperwork. However, of
note, Lt. Gross stated the following in his deposition in response to the question, “Why aren’t
you listed as a witness to the use of force on Officer Crichton’s use of force report?”:
The department’s overtime management policy dictates that I’m not supposed to place
myself into the position where I’m going to be called to court…And that’s the overtime
management policy. I’m not to put myself in the position that I have to testify. So I do not
routinely get interviewed by detectives, and I do not routinely get entered as a witness
unless I’m the actual arresting officer, which has happened…They don’t want me going
to court or any other supervisor, for that matter. They don’t want us jumping on every
case. Therefore, they don’t want us jumping on any case.
(Gross Dep. 45:1-24, 46:5-7.) Lt. Gross further stated that the overtime policy was “why” he
didn’t get interviewed by detectives about the incident. (Gross Dep. 47:1-9.) Later in his
deposition, Lt. Gross clarified that he:
probably should appear [on the use of force report] as a witness. There’s nothing that
would have prevented me from entering my own name here….I either missed that or
glossed over it when I was approving it. There’s nothing to prevent me from writing my
name there. I probably should have wrote my name there. As far as getting interviewed in
this matter by the detectives, that’s not something [the police commissioner] would like
me to do.
(Gross Dep. 55:2-19.)
c. Policy
Plaintiff’s claims concern a 2009 Philadelphia Police Department Overtime Management
Memorandum (09-01) dated January 28, 2009 (“the Policy”) which states the following:
“Platoon commanders will be required to review and initial all arrest and investigative reports,
including [Preliminary Arraignment Reporting System] reports, to ensure that only those
officers/investigators who are necessary for the successful outcome of the case are listed.” (AC ¶
1, Ex. A [hereinafter Policy]. 2) In the Standard Operating Procedure (“SOP”) that implements
the Policy, required that “only those officers necessary for prosecution will be subpoenaed to
court…” (Standard Operating Procedure Overtime Management & Reduction, Dkt No. 40, Ex. I
[hereinafter SOP].) Throughout this Memorandum of Law, the Court will refer to both
procedures jointly as “the Policy.”

2

The Policy is also attached to Plaintiff’s Response to Defendants’ Motion to Dismiss at Ex. H.
4

III.

Discussion
a. Only claims against Lt. Gross and P.O. Graner in their individual
capacities survive.
i. Legal Standard

In a civil rights case brought pursuant to 42 U.S.C. § 1983, Plaintiff must show that the
Defendant, acting under the color of state law, deprived him of “rights, privileges, or immunities
secured by the Constitution or the laws of the United States.” Parratt v. Taylor, 451 U.S. 527,
535 (1981). An individual state actor is liable under section 1983 only where he or she played an
“affirmative part” in the alleged misconduct. Mason v. City of Philadelphia, 2014 WL 4722640,
at *5 (E.D. Pa. 2014) (citing Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005) (internal
citations omitted)). “A defendant in a civil rights action must have personal involvement in the
alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior.”
Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citing Parratt, 451 U.S. at 537 n. 3).
ii. Analysis
Plaintiff brings excessive force claims against all named Defendants in their individual
capacities. 3 While Plaintiff only alleges physical contact by P.O. Crichton, other officers who
witnessed the physical contact by P.O. Crichton may be liable for P.O. Crichton’s use of
excessive force due to bystander liability. The Third Circuit has held that a state officer can be
held liable “if the [officer] had a reasonable opportunity to intervene and simply refused to do
so.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). The “officer is only liable if there is
a realistic and reasonable opportunity to intervene.” Id. at 61; see also Byrd v. Clark, 783 F.2d
1002, 1007 (11th Cir. 1986). In general, officers should take reasonable steps to protect a victim
from another officer’s excessive force. Adams v. Officer Eric Selhorst, 449 F. App’x 198 (3d Cir.
2011) (non-precedential).

3

Insofar as any claims against the named Defendants in their official capacities existed, such
claims are all dismissed. “There is no longer a need to bring official-capacity actions against local
government officials, for under Monell, local government units can be sued directly for damages and
injunctive or declaratory relief.” Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985) (citing Monell v.
Dept. of Soc. Srvs of City of New York, 436 U.S. 658, 690 n. 55 (1978)). Official-capacity suits, in
contrast, “generally represent only another way of pleading an action against an entity of which an officer
is an agent.” Graham, 473 U.S. at 165-66 (quoting Monell, 436 U.S. at 690, n. 55); see also Stana v. Sch.
Dist. of City of Pittsburgh, 775 F.2d 122, 130 (3d Cir. 1985). Thus, claims against Cmmr Ramsey in his
official capacity and P.O. Ashburn in his official capacity fail as a matter of law. Accord Munson v. City
of Philadelphia, 2009 WL 2152280, at *4 (E.D. Pa. 2009).
5

P.O. Graner and Lt. Gross witnessed the full incident. Here, there are material and
genuinely disputed facts as to whether (1) there was excessive force used against Plaintiff by
P.O. Crichton, and (2) whether P.O. Graner or Lt. Gross had the opportunity to intervene and
prevent a possible violation of Plaintiff’s rights. Summary judgment as to these officers is
therefore denied.
P.O. Collier and P.O. Taylor only witnessed the beginning part of the incident. P.O.
Collier testified that she and P.O. Taylor saw Plaintiff leave the precinct. (Collier Dep. 12:1-7.)
At that point, P.O. Collier testified that “Crichton and Graner, they was [sic] just standing there.
And [Plaintiff’s] still – he’s in the street. He’s on Winter Street in the street…And the next thing
we know, we see a crate, a crate – he threw a crate…And that’s when…[P.O.] Taylor [and
I]…left. It was like, oh, it’s time to go. We left.” (Collier Dep. 12:8-17.) Thus, P.O. Collier and
P.O. Taylor did not view the part of the incident that is disputed, which is P.O. Crichton’s
physical contact with Plaintiff. Claims against P.O. Collier and P.O. Taylor are dismissed with
prejudice.
Finally, Sergeants John McGrath and Anthony Burton, Corporal Thomas Young, P.O.
Ramriez and P.O. Maiorano did not witness Plaintiff’s interaction with P.O. Crichton. These
claims are dismissed with prejudice.
b. Qualified Immunity
The “doctrine of qualified immunity protects government officials ‘from liability for civil
damages insofar as their conduct does not violate clearly established statutory constitutional
rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). It is the Police
“[D]efendants’ burden to establish that they are entitled to such immunity.” Stoneking v.
Bradford Area School Dist., 882 F.2d 720, 726 (3d Cir. 1989). Courts have also specified that
“government officials are immune from suit in their individual capacities unless, taken in the
light most favorable to the party asserting the injury, (1) the facts alleged show the officer’s
conduct violated a constitutional right and (2) the right was clearly established at the time of the
objectionable conduct.” Gerhart v. Pennsylvania, 2009 WL 2581715, at *11 (E.D. Pa. 2009).
Plaintiff’s right to be free from unreasonable force and assault and to be reasonably protected by
another officer were clearly established laws and the officers should “reasonably be expected to
anticipate subsequent legal developments.” Harlow, 457 U.S. at 818; see also Grant v. City of
6

Pittsburgh, 98 F.3d 116 (3d Cir. 1996) (“[W]hether a reasonable public official would know that
his or her specific conduct violated clearly established rights”). “[W]hen qualified immunity
depends on disputed issues of fact, those issues must be determined by the jury.” Monteiro v.
City of Elizabeth, 436 F.3d 397, 405 (3d Cir. 2006).
The facts as viewed in the light most favorable to the Plaintiff demonstrate that the
remaining officers’ conduct potentially violated a constitutional right during the arrest. Qualified
immunity is not appropriate at this stage.
c. The City of Philadelphia cannot be held liable in this case.
i. Legal Standard
Municipal liability arises under section 1983 only when a constitutional deprivation
results from an official policy or custom. Monell v. Dept. of Soc. Srvs of City of New York, 436
U.S. 658, 691-94 (1978). Under Monell, a plaintiff can show that a policy existed “when a
‘decisionmaker possess[ing] final authority to establish municipal policy with respect to the
action’ issues an official proclamation, policy, or edict.” Andrews v. City of Philadelphia, 895
F.2d 1469, 1480 (3d Cir. 1990) (quoting Pembaur v. City of Cincinnati, 475 U.S. 469, 481
(1986)). Municipalities may be vicariously liable under section 1983 for the torts of their
employees in one of three ways:
(1) the individual acted pursuant to a formal government policy or a standard operating
procedure long accepted within the government entity;
(2) the individual himself has final policy-making authority such that his conduct
represents official policy; or
(3) a final policy-maker renders the individual's conduct official for liability purposes by
having delegated to him authority to act or speak for the government, or by ratifying the
conduct or speech after it has occurred.
Stevens v. Borough, 2013 WL 2292047, at *2 (E.D. Pa. 2013) (quoting Hill v. Borough of
Kutztown, 455 F.3d 225, 245 (3d Cir. 2006)).
To prevail on a claim under section 1983, a plaintiff must establish that he was deprived
of a constitutional right. See Harvey v. Plains Twp. Police Dep't, 635 F.3d 606, 609 (3d Cir.
2011). The municipal policy must be “the moving force of the constitutional violation.” Polk
County v. Dodson, 454 U.S. 312, 326 (1981). To establish causation, “there must be an
affirmative link between the policy and the particular constitutional violation alleged.” City of
Okl. City v. Tuttle, 471 U.S. 808, 823 (1985).
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ii. Analysis
In the Amended Complaint, Plaintiff alleges two claims against the City. In Count I,
Plaintiff alleges that the City has “encouraged, tolerated, [etc.]” (1) the use of excessive force,
unlawful detention, and false arrest, (2) incomplete police paperwork, (3) the exclusion of the
identifies of police witnesses; and (4) a culture of tolerance of this “unlawful conduct.” (AC ¶
54.) Plaintiff further alleges that the City failed to properly sanction the officers who committed
such aforementioned constitutional violations. (AC ¶ 55.) In Count II, Plaintiff alleges that the
Policy improperly withholds “exculpatory evidence from police reports” depriving defendants of
their Fourth, Fifth, Sixth, and Fourteenth Amendment rights. (AC ¶ 58.)
Plaintiff has sufficiently pointed to two procedures, collectively “the Policy,” that were
adopted by the City. (Policy; SOP.) There is no actual material dispute of fact that Police
Commissioner Ramsey promulgated the Policy, that it was widely adopted by the Department,
and roundly enforced.
The Court next must address whether Plaintiff has pled an underlying constitutional
violation. Plaintiff’s Amended Complaint alleges two main theories of liability: (Count I) the
Policy caused P.O. Crichton to use excessive force against Plaintiff, and caused the other named
officers to fail to intervene, (Count II) the Policy led to the exclusion of police witnesses from
police paperwork which impeded Plaintiff’s constitutional rights related to both (a) his criminal
defense and (b) his prosecution of a civil claim against the police department. The Court will
address each theory individually.

1. Count I
Plaintiff alleges that “the Policy also results in a systemic failure to train, supervise,
and/or discipline police officers because it affects, among other things, the Police Department
Internal Affairs Bureau’s (“IAB”) review of an officer’s use of force.” (AC ¶ 2.) Plaintiff argues
that “[because] the Police Department implemented the Policy, which encourages the concerted
action of police officers in an effort to withhold material information from the IAB and Citizens,
the Police Department adopted, encouraged, and/or, ratified the use of force.” (AC ¶ 3.) Thus,

8

Plaintiff is alleging two distinct theories: (1) that the Policy represents a failure to train and
discipline, and (2) that the Policy itself encourages the use of excessive force. 4
First, the Third Circuit has held that “a failure to train, discipline or control can only form
the basis for section 1983 municipal liability if the plaintiff can show both contemporaneous
knowledge of the offending incident or knowledge of a prior pattern of similar incidents and
circumstances under which the supervisor's actions or inaction could be found to have
communicated a message of approval to the offending subordinate.” Montgomery v. De Simone,
159 F.3d 120, 127 (3d Cir. 1998) (citing Bonenberger v. Plymouth Twp., 132 F.3d 20, 25 (3d Cir.
1997)). In order for a municipality's failure to train to be actionable under section 1983, however,
it must amount to “deliberate indifference” to the rights of the persons with whom police officers
come into contact, and it must be shown to be a part of city policy. City of Canton v. Harris, 489
U.S. 378, 389-390 (1989). To establish the requisite “deliberate indifference,” there must be
proof of “a pattern of underlying constitutional violations.” Carswell v. Borough of Homestead,
381 F.3d 235, 244 (3d Cir. 2004). The plaintiffs “must also show that a reasonable municipal
policymaker had knowledge of prior incidents or knowledge of similar violations of
constitutional rights and failed to take adequate measures to ensure the particular right in
question.” Lazarde v. City of Reading, 2012 WL 4473246, at *4 (E.D. PA. 2012) (internal
citation omitted).
The Court has previously held that Plaintiff failed to show that the policymaker in
question, Commissioner Ramsey, acted with deliberate indifference. (Dkt No. 26 at 9.) The
Court granted Plaintiff leave to amend his Amended Complaint, but Plaintiff chose not to do so.
Moreover, the Policy does “not govern investigating, training, supervising, and/or
disciplining…[and Plaintiff has] failed to show a causal link with any other [training] policy.”
Whitehead v. City of Philadelphia, 2014 WL 657486 (E.D. Pa. 2014). Plaintiff cannot sustain
this claim. Thus, the Court grants summary judgment as to Plaintiff’s failure to train theory.
Second, Plaintiff alleges that the Policy directly led to the use of excessive force. This
theory of liability was not alleged in Whitehead. Plaintiff must show that the named officers

4

The Court notes for clarity that there is no constitutional right to a police investigation. Town of
Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 768 (2005). Thus, Plaintiff cannot base a claim on any
alleged underlying constitutional injury that the IAB review process was not comprehensive enough as to
his claim.
9

“acted pursuant to a formal government policy or a standard operating procedure long accepted
within the government entity.” Hill, 455 F.3d at 245. Plaintiff has pointed to both a formal
government policy and a standard operating procedure. The question becomes whether or not the
named officers “acted pursuant” to the Policy.
Defendants argue that Plaintiff has not “plausibly suggested or evinced evidence that the
overtime management policy caused Defendant Crichton to violate Plaintiff’s constitutional
rights. Defendant Crichton could have used force, excessive or otherwise, on Plaintiff regardless
of whether the City had instituted the overtime management policy.” (MSJ at 7-8.) The Court
agrees. There is no testimony or evidence to suggest that the Policy in any way informed P.O.
Crichton’s actions. In fact, the deposition testimony demonstrates the opposite. Plaintiff’s theory
depends on P.O. Crichton using excessive force due to his understanding that any witness would
not be included on the police reports. However, P.O. Crichton testifies that he believed that P.O.
Graner was the only witness to the incident. (Crichton Dep. 30:4-32:11.) P.O. Graner was listed
on all police paperwork. Thus, the Policy did not prevent P.O. Crichton from listing the only
witness to the incident of which he was aware. These facts invalidate any theory that P.O.
Crichton acted because he believed the Policy would prevent other witnesses to his alleged
police brutality from coming forward. The Court cannot find any plausible connection between
P.O. Crichton’s alleged use of excessive force and the Policy.
Similarly, Plaintiff has not shown that there was a causal connection between the Policy
and P.O. Graner’s or Lt. Gross’s failure to intervene. As previously addressed, P.O. Graner is
listed on all paperwork. In contrast, Lt. Gross testified that he was not listed on the paperwork
because of the Policy and the SOP. (Gross Dep. 45:12-15.) Plaintiff argues that P.O. Gross’s
failure to be listed on the paperwork also shows a failure to intervene upon seeing the use of
excessive force. The Court certainly finds a well pled causal connection between the Policy and
the failure for Lt. Gross to be listed on the police paperwork. However, the Court cannot find a
causal link between Lt. Gross’s alleged failure to intervene and the Policy. The Court cannot
make the fraught conceptual leap from a failure to be listed on the police paperwork to causing a
failure to intervene. The Policy does not outright abrogate an officer’s duty to intervene.
Moreover, there is no testimony that Lt. Gross’s alleged failure to intervene was in any way
caused by the Policy.

10

Further, the Court cannot find support for this failure to intervene theory in the testimony
of P.O. Collier. In his Response to the Motion for Summary Judgment, Plaintiff argues that P.O.
Collier’s statement that the Policy made her and P.O. Taylor leave the scene demonstrates that
the Policy encourages officers to fail to intervene when viewing police brutality. P.O. Collier’s
testimony was that when she and P.O. Taylor saw Plaintiff throw a milk crate, they decided that
it was time to go. (Collier 12:13-17.) P.O. Collier did not testify to seeing any physical
interaction between Plaintiff and P.O. Crichton. P.O. Collier’s testimony was not that she and
P.O. Taylor left upon seeing P.O. Crichton use force. Rather, it was Plaintiff’s behavior that
caused P.O. Collier to leave. Given that P.O. Collier and P.O. Taylor did not see any behavior
that arguably required intervention, the Policy, likewise, cannot be said to have encouraged their
lack of intervention. Simply put, there is no evidence that the Policy caused them to condone
excessive force by leaving a scene upon seeing police brutality. In this case, they left prior to any
alleged use of excessive force. The Court cannot find any evidence linking the Policy to a failure
to intervene by any of the officers. Summary judgment is therefore granted as to claims against
the City of Philadelphia on the theory that the Policy led to the use of excessive force.
2. Count II
Plaintiff alleges that due to the Policy, “[c]itizens accused of crimes may never learn the
existence of, let alone, the identity of police witnesses who can help their defense.” (AC ¶ 1.)
Plaintiff alleges that “[b]y adopting a policy that withholds exculpatory evidence from police
reports[,] defendants will continue to deprive plaintiff and others who may come into contact
with police of rights guaranteed by the Constitution…” (AC ¶ 60.) Plaintiff alleges violations of
his Fourth, Fifth, Sixth, and Fourteenth Amendment rights. 5 In Plaintiff’s Response to
Defendant’s Motion, Plaintiff argues that the Policy necessarily led to P.O. Collier and other
police witnesses to the incident, being deliberately excluded from police paperwork. (Defs’

5

As a preliminary matter, Plaintiff has not alleged a violation of his Fifth Amendment rights.
“[D]ue process clause under the Fifth Amendment only protects against federal governmental action and
does not limit the actions of state officials.” Caldwell v. Beard, 324 F. App’x 186, 189 (3d Cir. 2009)
(non-precedential) (citing Riley v. Camp, 130 F.3d 958, 972 n. 19 (11th Cir. 1997)); see also Beahm v.
Burke, 982 F.Supp.2d 451, 458 (E.D. Pa. 2013). The Defendants are state employees, not federal officials.
These claims are dismissed. “The rights secured to individuals by the Fifth Amendment are generally
applicable against states only through the Fourteenth Amendment.” Robinson v. Vaughn, 1993 WL
451495, at *5 (E.D. Pa. 1993). Insofar as any of Plaintiff’s allegations concern due process allegations,
the Court addresses them in its Fourteenth Amendment analysis herein.
11

Resp. at 26-27.) Plaintiff alleges that this deliberate exclusion amounts to spoliation of evidence
needed for (1) defense in Plaintiff’s criminal charges, and (2) prosecution of this present civil
case. (Defs’ Resp. at 27.)
The Court will draw the inference in favor of Plaintiff that the Policy directly led to the
exclusion of various police witnesses from the police paperwork. The question remains,
however, whether or not Plaintiff suffered any constitutional violations in either his criminal
defense or this civil prosecution by having the names of police witnesses withheld.
First, as to the deprivation’s effect on his criminal defense, Plaintiff faces a Catch 22. “To
succeed on such a claim under § 1983, he would have to show that Defendants deprived him of
material, exculpatory evidence. See Brady v. Maryland, 373 U.S. 83 (1963). However, if he
made such a showing, it would imply the invalidity of his conviction and bar him from relief. See
Heck v. Humphrey, 512 U.S. 477, 487 (1994).” Wells v. Dist. Attorney's Office of Phila. Cnty.,
266 F. App'x 187, 188-89 (3d Cir. 2008) (non-precedential). Thus, the Court dismisses any
claims relating to the effect of the withholding of allegedly exculpatory evidence on Plaintiff’s
criminal defense. 6
Second, the Court addresses whether the alleged deprivation’s effect on his civil case
could result in a cognizable constitutional violation. 7 Plaintiff argues that “[m]eaningful access
to the courts should not require luck…However, the Policy and the SOP usurp the rules and
6

The Court notes that this holding is in congruence with the Court’s earlier Order and
Memorandum of Law dated October 18, 2013, denying Defendants’ Motion to Dismiss. (Dkt No. 10.) In
that Opinion, the Court found that the doctrine of Heck v. Humphrey did not bar Plaintiff’s “§ 1983 claims
for use of excessive force and for an improper policy that encourages this behavior and ‘manipulates the
system’ to withhold material information and evidence from plaintiff suing the City and its officers.” (Dkt
No. 10 at 9.) In that Opinion, the Court did not address Plaintiff’s claims regarding the impact of the
withholding of the officers’ names from police paperwork on his criminal defense. Addressing such issue
for the first time, the Court finds that the doctrine of Heck v. Humphrey does bar that theory of liability.
Further, the Court’s holding does not conflict with its holding in a previous case regarding this
same Policy in Ballard v. City of Philadelphia, 2015 WL 1636878 (E.D. Pa. 2015). In Ballard, this Court
found that Plaintiff’s theory that the Policy led to the exclusion of exculpatory evidence from the probable
cause determination process survived a Motion for Judgment on the Pleadings. Id. at *4-*5. Such a theory
of liability was not alleged in this case.
7

The Court notes that it did not address this question in its previous Order and Memorandum of
Law dated October 18, 2013. (Dkt No. 10.) Defendants moved to dismiss Plaintiff’s section 1983 claim
only on the grounds that Plaintiff lacked standing. (Dkt No. 6 at 11-14.) Defendant’s Motion to Dismiss
did not reach the merits of the argument that withholding exculpatory evidence during a criminal case
could cause a constitutional violation as to a defendant’s right to mount a civil case. Thus, the Court’s
Opinion did not address such arguments. The Court addresses such arguments now.
12

cause spoliation of evidence at inception.” (Pl. Resp. at 27.) However, Plaintiff fails to point to
which “rules” are usurped, or any constitutional right that has been directly violated. The Court
cannot find one either.
First, Plaintiff cannot sustain a Sixth Amendment claim under this theory. The Sixth
Amendment applies only in the criminal setting. Wolff v. McDonnell, 418 U.S. 539, 576 (1974);
Kirby v. Illinois, 406 U.S. 682, 690 (1972) (holding that the Sixth Amendment guarantees only
apply to “criminal prosecutions”).
Second, Plaintiff cannot sustain a Fourth Amendment claim. Plaintiff has not alleged any
liberty or property interest that was infringed by Defendants’ actions. The Court cannot find, and
Plaintiff has not provided, any case where a civil plaintiff successfully alleged a Fourth
Amendment violation due to an opposing party/governmental body withholding evidence.
Third, Plaintiff’s claim uses the language of First and Fourteenth Amendment “access to
courts” claims. Such claims are found in the prisoner context. See, e.g., Monroe v. Beard, 536
F.3d 198, 205 (3d Cir. 2008); Lewis v. Casey, 518 U.S. 343, 346 (1996); Bounds v. Smith, 430
U.S. 817, 821 (1977). The Court can find no example, and Plaintiff has provided none, where a
non-prisoner was able to allege a First Amendment access-to-courts violation due to an opposing
party’s withholding of evidence in a civil case.
Thus, the Court cannot find any theory by which Plaintiff can sustain a claim regarding
the effect of the withholding of information. Summary judgment is granted as to all of Plaintiff’s
claims against the City of Philadelphia.

IV.

Conclusion

The Court GRANTS Defendants’ Motion for Summary Judgment, (Dkt No. 40), as to
Plaintiff’s claims against Defendant City of Philadelphia. The City of Philadelphia is
DISMISSED as a Defendant in this case. The Court GRANTS Defendants’ Motion for Summary
Judgment, (Dkt No. 40), as to Plaintiff’s section 1983 claims against Defendants P.O. Shawnier
Collier, P.O. Kenneth Taylor, Jr., Sgt. John McGrath, Sgt. Anthony Burton, Cpl. Young and P.O.
Salvatore Maiorano. The Court DENIES Defendants’ Motion for Summary Judgment, (Dkt No.
40), as to Plaintiff’s section 1983 claims for excessive force by way of bystander liability against
Defendants P.O. David Graner and Lt. Gross.

13

Defendants did not move for summary judgment as to any state claim. Thus, all
Defendants remain in the case as to the state claims alleged. In addition, Defendants did not
move for summary judgment on section 1983 claims against P.O. Crichton. Those claims
remain.

BY THE COURT:
/s/ C. Darnell Jones, II

_____________________________
C. Darnell Jones, II

14

J.