GADDY v. CITY OF PHILA. POLICE DEP'T et al

Filing 35

MEMORANDUM AND/OR OPINION SETTING FORTH THE REASONS WHY THE COURT IS GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS (DOCKET NO. 27). AN APPROPRIATE ORDER FOLLOWS. SIGNED BY HONORABLE GENE E.K. PRATTER ON 6/4/15. 6/4/15 ENTERED AND COPIES E-MAILED.(rab, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

TERRANCE GADDY,
Plaintiff,
v.
CITY OF PHILA. POLICE DEP’T et al.,
Defendants.

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PRATTER, J.

CIVIL ACTION

No. 14-3435

JUNE 4, 2015
MEMORANDUM

I.

INTRODUCTION

Terrance Gaddy is suing the City of Philadelphia Police Department and Philadelphia
Police Officers Matthew Winscom and Michael Chichearo. His original Complaint (Docket No.
3) alleged that the Defendants violated 42 U.S.C. § 1983 by conducting an illegal search and
seizure, using excessive force, violating his due process rights, applying cruel and unusual
punishment, engaging in ethnic and racial profiling, and being deliberately indifferent to
constitutional violations. The Court granted Defendants’ Motion to Dismiss (Docket No. 12) on
the grounds that Mr. Gaddy’s claims were barred by the statute of limitations. However, the
Court granted leave for Mr. Gaddy to amend his complaint and plead additional facts in support
of his argument that the doctrine of fraudulent concealment tolled the statute of limitations. Mr.
Gaddy filed an Amended Complaint (Docket No. 24), and Defendants filed a second Motion to
Dismiss (Docket No. 27), renewing their argument that Mr. Gaddy’s claims are barred by the
statute of limitations.

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II.

ALLEGATIONS IN THE AMENDED COMPLAINT

On September 20, 2011, in Philadelphia, Mr. Gaddy, an African American male in
possession of two weapons, was riding a bicycle when he noticed Officers Winscom and
Chichearo, both of whom are white, “staring at him, as if profiling him.” (Am. Compl. ¶ 13).
After the officers approached him, Mr. Gaddy fled on his bicycle. Officer Chichearo, in his
police car, pursued Mr. Gaddy into an alleyway near the 5200 block of Saul Street. Officer
Chichearo’s car struck the rear of Mr. Gaddy’s bicycle, throwing Mr. Gaddy to the ground. Mr.
Gaddy alleges that the officers subsequently assaulted him while he was on the ground, and that
he drifted in and out of consciousness during the alleged assault. According to Mr. Gaddy, the
officers removed the bicycle from the scene of the incident and discovered that he possessed two
weapons only after they had assaulted him.
Mr. Gaddy suffered a contusion within his right frontal lobe, a slight subretinal
hemorrhage, and, allegedly, memory loss, among other injuries. Mr. Gaddy claims that the
memory loss affected his recollection of the September 20, 2011 incident.
Mr. Gaddy was arrested on the day of the incident and was charged with numerous
crimes. There was a preliminary hearing on November 17, 2011. At that hearing, Officer
Chichearo testified that the officers approached Mr. Gaddy because they saw a bulge in his
waistband, but that Mr. Gaddy fled on foot. He further testified that Mr. Gaddy pointed a gun at
Officer Chichearo’s police car during the pursuit, at which time Officer Chichearo used his
police car to strike Mr. Gaddy. According to Officer Chichearo’s testimony, only he, Officer
Winscom, and Mr. Gaddy were in the alley at the time of the events at issue, and the officers
found two firearms on or near Mr. Gaddy while searching him as he lay on the ground.

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Mr. Gaddy claims that he only first learned of the actual cause of his injuries in early
2013, when he received a letter from Zorangelie Hernandez, who claimed to be a witness to Mr.
Gaddy’s arrest and beating. Mr. Gaddy eventually secured sworn statements from Ms.
Hernandez, as well as from Yashira Hernandez and Emanuel Hernandez, two other witnesses
who claimed to have seen the events of September 20, 2011. Mr. Gaddy attached those
statements to the Amended Complaint.
III.

LEGAL STANDARD

A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the
sufficiency of a complaint. Although Rule 8 requires only “a short and plain statement of the
claim showing that the pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), in order to “give the
defendant fair notice of what the . . . claim is and the grounds upon which it rests,” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal quotation marks omitted)
(alteration in original), the plaintiff must provide “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not do.” Id. (citation omitted).
To survive a motion to dismiss, the plaintiff must plead “factual content that allows the
court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). When deciding a motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6), the Court may look only to the facts alleged in the
complaint and its attachments. See Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1251,
1261 (3d Cir. 1994). The Court must accept as true all well-pleaded allegations in the complaint,
and all reasonable inferences that may be drawn from them, and view them in the light most
favorable to the plaintiff. See Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989);
Angelastro v. Prudential-Bache Sec., Inc., 764 F.2d 939, 944 (3d Cir. 1985).

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IV.

DISCUSSION

Defendants’ motion to dismiss argues that Mr. Gaddy’s claims are barred by the statute
of limitations. Mr. Gaddy’s state law claims are governed by a two-year statute of limitations
governing torts such as assault and battery . See 42 Pa. Cons. Stat. § 5524(1)-(2), (7). Because
“courts entertaining claims brought under 42 U.S.C. § 1983 should borrow the state statute of
limitations for personal injury actions,” Owens v. Okure, 488 U.S. 235, 250 (1989) (citing Wilson
v. Garcia, 471 U.S. 261 (1985)), Mr. Gaddy’s claims under § 1983 are similarly governed by a
two-year statute of limitations. The incident occurred on September 20, 2011, and Mr. Gaddy
filed his original Complaint more than two years later on June 17, 2014. Thus, based on the
chronological information, the claim appears to be untimely.
Mr. Gaddy argues, however, that the statute of limitations should be tolled under
Pennsylvania’s doctrine of fraudulent concealment. The doctrine of fraudulent concealment tolls
the statute of limitations when “through fraud or concealment the defendant causes the plaintiff
to relax his vigilance or deviate from the right of inquiry.” Ciccarelli v. Carey Can. Mines, Ltd.,
757 F.2d 548, 556 (3d Cir. 1985). For the doctrine of fraudulent concealment to apply, a plaintiff
must allege facts to suggest “(1) that the defendant actively misled the plaintiff; (2) which
prevented the plaintiff from recognizing the validity of [his] claim within the limitations period;
and (3) where the plaintiff’s ignorance is not attributable to [his] lack of reasonable due diligence
in attempting to uncover the relevant facts.” Cetel v. Kirwan Fin. Grp., Inc., 460 F.3d 494, 509
(3d Cir. 2006). There must be an affirmative and independent act of concealment for this
doctrine to apply. See Gee v. CBS, Inc., 471 F. Supp. 600, 623 (E.D. Pa. 1979). “The doctrine
does not require fraud in the strictest sense encompassing an intent to deceive, but rather, fraud
in the broadest sense, which includes an unintentional deception.” Fine v. Checcio, 870 A.2d

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850, 860 (Pa. 2005). The doctrine of fraudulent concealment tolls the statute of limitations until
the plaintiff “knew or using reasonable diligence should have known of the claim.” Vernau v.
Vic’s Market, Inc., 896 F.2d 43, 46 (3d Cir. 1990). The plaintiff bears the burden of pleading
facts sufficient to establish fraudulent concealment by “clear, precise, and convincing evidence.”
See Fine, 870 A.2d at 860.
The doctrine may apply if the plaintiff was misled from discovering the true cause of his
injuries. See Vitalo v. Cabot Corp., 399 F.3d 536, 543 (3d Cir. 2005); In re TMI, 89 F.3d 1106,
1117 (3d Cir. 1996). Indeed, misrepresentations by the police suggesting that they did not engage
in misconduct may toll the statute of limitations under the doctrine of fraudulent concealment. In
Swietlowich v. Bucks County, 610 F.2d 1157 (3d Cir. 1979), the plaintiff’s husband committed
suicide while in police custody, and the police told the plaintiff that they checked on him
frequently. The plaintiff did not file suit against the police department until four years after her
husband’s death, when a newspaper article asserted that the police had falsified records of her
husband’s confinement. The Third Circuit Court of Appeals found that the statute may have been
tolled “by police misrepresentation of diligence in caring for their prisoner” and the district
court’s instructions to the contrary constituted error. Id. at 1162. The appellate court explained,
“To establish her case, plaintiff had to prove that she delayed bringing her suit because she
reasonably believed that the police officers’ conduct was not actionable based on their false
statements of adequate inspections and of having done all that they could.” Id. at 1163. There is
no question that the plaintiff in Swietlowich knew about the alleged injury (i.e., her husband’s
suicide), but the Court concluded that the police’s misrepresentations to her could have
reasonably misled her as to the true cause of that injury, so the statute of limitations may have
been tolled.

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Here, Mr. Gaddy argues that Officer Chichearo’s testimony at Mr. Gaddy’s November
17, 2011 preliminary hearing improperly delayed Plaintiff’s appropriately diligent pursuit of his
claims in two ways. First, to the extent Mr. Gaddy claims that his constitutional rights were
violated when Officer Chichearo knocked him off a bicycle using a police vehicle, Mr. Gaddy
claims that Officer Chichearo’s testimony improperly concealed the fact that Mr. Gaddy was
fleeing from the police on a bicycle rather than on foot. However, Mr. Gaddy knew from Officer
Chichearo’s testimony and from his medical documentation that he was hit by a car on
September 20, 2011. (See Am. Compl. Ex. 1 at 2, Ex. 2 at 6:4-6). And it is clear from the
transcript of the preliminary hearing that Mr. Gaddy suspected that he was riding a bicycle
during his encounter with the Defendants. (See Am. Compl. Ex. 2 at 14:11-14). As a result, there
was no reason for Mr. Gaddy to delay his investigation of the circumstances surrounding any
injuries that he allegedly suffered when Officer Chichearo hit him with the police vehicle.
Through the exercise of due diligence in the course of that investigation, Mr. Gaddy could have
discovered that he was riding a bicycle at the time of the incident. In other words, Mr. Gaddy’s
alleged ignorance as to any claim arising from the fact that he was riding a bicycle at the time of
the incident is attributable to his “lack of reasonable due diligence in attempting to uncover the
relevant facts” underlying his claim rather than Officer Chichearo’s allegedly misleading
testimony. Cetel, 460 F.3d at 509. Consequently, the doctrine of fraudulent concealment cannot
toll the statute of limitations with respect to any claim based on injuries that Mr. Gaddy allegedly
sustained from being knocked off his bicycle.
Second, however, Mr. Gaddy argues that Officer Chichearo’s testimony improperly
concealed the fact that officers assaulted him while he lay on the ground unconscious. At the
preliminary hearing, Officer Chichearo testified under oath that after he knocked Mr. Gaddy to

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the ground with his police car, he quickly got out of the car, recovered a handgun from near Mr.
Gaddy, and handcuffed Mr. Gaddy. (See Am. Compl. Ex. 2 at 5:22-6:10). According to Officer
Chichearo’s testimony, Officer Winscom discovered a second weapon on Mr. Gaddy’s person
after Mr. Gaddy had been handcuffed. (See Am. Compl. Ex. 2 at 6:11-14). Although Officer
Chichearo summarized the entirety of his encounter with Mr. Gaddy under oath, he never once
mentioned that officers used force against Mr. Gaddy while he lay on the ground after being hit
with the police vehicle. Likewise, Officer Chichearo stated that Officer Winscom was the only
other witness to the events, but Mr. Gaddy allegedly later learned of third party witnesses who
tell a different story of what happened.
Assuming the truth of the allegations in Mr. Gaddy’s Amended Complaint, it is plausible
that Officer Chichearo’s testimony hid, or at least materially obscured, from Mr. Gaddy the facts
and potential witnesses that would have otherwise put him on notice that his constitutional rights
had been violated when police officers beat him while he lay on the ground unconscious. See
Swietlowich, 610 F.2d at 1162 (quoting Deemer v. Weaver, 187 A. 215, 216 (1936)). Indeed, the
fact that Mr. Gaddy’s injuries are alleged to be consistent with injuries sustained when being
struck by a police vehicle could have made Officer Chichearo’s alleged misrepresentations more
powerful. See Vitalo, 399 F.3d at 543 (“If a person knows of an injury but is given an incorrect,
but nevertheless reasonable, diagnosis, that person may be misdirected as to the injury’s cause
[and] the statute of limitations might not begin to run until the injured person is given a correct
diagnosis or should otherwise know the true cause (in light of the totality of the
circumstances).”). Ordinarily, alleged misrepresentations regarding an incident involving the use
of force would not serve to toll the statute of limitations because the injured party would be
aware of the events that transpired. However, Mr. Gaddy alleges that he was unconscious during

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the incident and lost his memory of that event. (See Am. Compl. ¶¶ 20-23, 40). These allegations
are plausible in light of the factual allegations and attachments to the Amended Complaint
regarding the treatment Mr. Gaddy received for head trauma. (See Am. Compl. ¶ 28, Ex. 1). The
Court therefore finds that the doctrine of fraudulent concealment may toll the statute of
limitations with respect to Mr. Gaddy’s claims arising from the alleged use of force against him
while he lay on the ground unconscious. 1
At oral argument, Defendants argued that the doctrine of fraudulent concealment was
inapposite because Officer Chichearo did not engage in any affirmative act of concealment. In
general, “in order for fraudulent concealment to toll the statute of limitations, the defendant must
have committed some affirmative independent act of concealment upon which the plaintiff
justifiably relied.” Baselice v. Franciscan Friars Asusmption BVM Province, Inc., 879 A.2d 270,
278 (Pa. Super. Ct. 2005) (quoting Kingston Coal Co. v. Felton Mining Co., Inc., 690 A.2d 284,
290 (Pa. Super. Ct. 1997)). “Mere silence in the absence of a duty to speak . . . cannot suffice to
prove fraudulent concealment.” Sevin v. Kelshaw, 611 A.2d 1232, 1236 (Pa. Super. Ct. 1992)
(citing Smith v. Renaut, 564 A.2d 188, 192 (Pa. Super. Ct. 1989)).
The Court disagrees with Defendants argument for three reasons. First, Officer Chichearo
may have made an affirmative misrepresentation when he said that Officer Winscom was the
only other witness to the incident. (See Am. Compl. Ex. 2 at 8:19-20). The Amended Complaint
mentions at least three third-party witnesses who claim to have seen Mr. Gaddy’s encounter with
the police and tell stories that conflict with Officer Chichearo’s version of events. Assuming the
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Whether or not the circumstances of this case actually toll the statute of limitations is a
question of fact, not a question suitable for disposition as a matter of law at this stage of the
litigation. See In re Cmty. Bank of N. Va., 622 F.3d 275, 301-02 (3d Cir. 2010) (“[B]ecause the
question whether a particular party is eligible for equitable tolling generally requires
consideration of evidence beyond the pleadings, such tolling is not generally amenable to
resolution on a Rule 12(b)(6) motion.”).
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truth of the allegations in the Amended Complaint, it is plausible that Mr. Gaddy did not search
for additional witnesses to the incident (and therefore failed to discover the facts underlying the
claims in this lawsuit) in reliance on Officer Chichearo’s affirmative testimony that there were
no such witnesses. Thus, Officer Chichearo’s testimony at the preliminary hearing may have
been an “affirmative independent act of concealment upon which the plaintiff justifiably relied.”
Baselice, 879 A.2d at 278.
Second, Officer Chichearo testified under oath. (See Am. Compl. Ex. 2 at 4:12-13).
Testimony under oath is a serious matter and should be understood and treated as such. Swearing
to testify truthfully, Officer Chichearo had a duty to tell the whole truth and nothing but the truth.
See Pa. R. Evid. 603. Pursuant to that duty, Officer Chichearo described what appears to be the
entirety of his encounter with Mr. Gaddy, but may have failed to mention that officers used force
against Mr. Gaddy while Mr. Gaddy lay on the ground unconscious or that others were present at
the time of the incident. Accepting the allegations of the Amended Complaint as true at this stage
of the litigation, such selective omissions could qualify as an “affirmative independent act of
concealment upon which the plaintiff justifiably relied,” Baselice, 879 A.2d at 278, in light of the
well-established duty under Pennsylvania law to provide accurate and complete testimony under
oath. See Pa. R. Evid. 603 (noting that the oath to testify truthfully “must be in a form designed
to impress that duty on the witness’s conscience”); 42 Pa. Cons. Stat. Ann. § 5901 (“Every
witness, before giving any testimony shall take an oath . . . by laying the hand upon an open copy
of the Holy Bible, or by lifting up the right hand and pronouncing or assenting to the following
words: ‘I, A.B., do swear by Almighty God, the searcher of all hearts, that I will [testify
truthfully], and that as I shall answer to God at the last great day.”); see also Act of March 21,
1772, 1 Sm. L. 387, § 1 (same).

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Third, notwithstanding the general duty to testify truthfully, Officer Chichearo may have
also been subject to a special duty to testify regarding the use of force against Mr. Gaddy while
Mr. Gaddy was unconscious. When presenting evidence to demonstrate the existence of probable
cause, state actors owe a duty under the U.S. Constitution not to “knowingly and deliberately, or
with a reckless disregard for the truth, [make] false statements or omissions that create a
falsehood” when “such statements or omissions are material, or necessary, to the finding of
probable cause.” Wilson v. Russo, 212 F.3d 781, 787 (3d Cir. 2000) (internal citations and
quotation marks omitted). Such omissions may be material and alter the outcome of a probable
cause determination if “the officer withheld a highly relevant fact within his knowledge where
any reasonable person would have known that this was the kind of thing the judge would wish to
know” and disclosure of the omitted information would demonstrate that probable cause did not
exist. Commonwealth v. Taylor, 850 A.2d 684, 689 (Pa. Super. Ct. 2004) (internal quotation
marks omitted); Wilson, 212 F.3d at 787 (same). Mr. Gaddy alleges that the officers discovered
weapons only after they beat him. Thus, assuming the truth of the allegations in the Amended
Complaint, Officer Chichearo had a special duty to tell the presiding judge at the preliminary
hearing about the allegedly unjustified use of force that led to the discovery of the weapons, as
that information is certainly “the kind of thing the judge would wish to know,” Taylor, 850 A.2d
at 689, and may have precluded a finding that probable cause existed.
Although “all storytelling involves an element of selectivity,” Wilson, 212 F.3d at 787,
Officer Chichearo had a duty to testify at the preliminary hearing about the use of force against
Mr. Gaddy and the possible existence of additional witnesses. Therefore, Mr. Gaddy may
proceed to try to use Officer Chichearo’s testimony to prove that the doctrine of fraudulent
concealment should toll the statute of limitations.

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V.

CONCLUSION

For the foregoing reasons, the Court will grant in part and deny in part Defendants’
Motion to Dismiss. The Court will dismiss any claims arising from the alleged use of a police
vehicle to knock Mr. Gaddy off his bicycle, but it will not dismiss claims arising from the
alleged use of force against Mr. Gaddy while he lay on the ground unconscious.

BY THE COURT:

S/Gene E.K. Pratter
GENE E.K. PRATTER
UNITED STATES DISTRICT JUDGE

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