KENNEDY v. CITY OF PHILADELPHIA et al

Filing 15

MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE GERALD J. PAPPERT ON 10/23/17. 10/23/17 ENTERED AND COPIES MAILED TO PLAINTIFF.(jaa, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
ARDELL KENNEDY,
Plaintiff,
v.
CITY OF PHILADELPHIA, et al.,
Defendants.

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CIVIL ACTION

NO. 17-2338

MEMORANDUM
PAPPERT, J.

OCTOBER 23 , 2017

Ardell Kennedy brings this civil action pursuant to 42 U.S.C. § 1983 against the City of
Philadelphia, Mayor James Kenney, Commissioner Richard Ross, the Philadelphia Police
Department, Philadelphia Police Officers Nathaniel Haper, Richard Kurth, Joseph McCauley,
Derrick Jones, Richard Lynch, Jr., Junius Smalls, Taven Washington, Gregory Fagan, Jr., Patrick
Love, Jr., and Wright, former District Attorney Seth Williams, Assistant District Attorneys Lou
Tumolo, Courtney Malloy, Jennifer Friend-Kelly, and Jennifer O. Andress, Judges Sheila
Woods-Skipper, Joyce O. Eubanks, Daniel J. Anders, and Giovanni Campbell, and defense
attorneys Keir Bradford-Grey, Marit Anderson, Joseph Patrick McPeak, Tess Senderowicz, and
Jilozian Edwards. Kennedy raises claims of false arrest and malicious prosecution related to
criminal proceedings in the Philadelphia Court of Common Pleas.
On May 22, 2017, the Court received Kennedy’s initial complaint. On July 19, 2017, the
Court granted Kennedy leave to proceed in forma pauperis, dismissed his initial complaint, and
allowed him to file an amended complaint within thirty (30) days. (ECF No. 9.) He did so on
July 26, 2017. (ECF No. 11.) On July 31, 2017, the Court stayed further proceedings in this
case until Kennedy informed the Court that his criminal case had been resolved. (ECF No. 12.)
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On September 26, 2017, the Court received a letter from Kennedy stating that he had been
acquitted of all charges and that he wished to “move forward with [his] civil suit.” (ECF No.
13.) He filed a Second Amended Complaint on October 16, 2017 (ECF No. 14), which the Court
now dismisses.
I.
On October 30, 2014, Kennedy was arrested for “allegedly [selling] drugs out of 2451 W
Toronto St.” (Second Am. Compl. ¶ 1.) He was charged with possession of a controlled
substance with intent to deliver and criminal conspiracy. (Id.) Kennedy contends that the
officers who arrested him did so “without probable cause and without a search warrant,” and that
they conspired to violate his constitutional rights. (Id.) He also alleges that various prosecutors,
judges and defense attorneys violated his rights during his criminal proceedings. A review of
public dockets reflects that Kennedy’s criminal proceedings were dismissed on September 19,
2017, and that a “[m]istrial was intentional conduct of Commonwealth witness (Police Officer
McCauley).” See Commonwealth v. Kennedy, Docket No. CP-51-CR-0012955-2014 (Phila. Ct.
Common Pleas).
II.
Since the Court previously granted Mr. Kennedy leave to proceed in forma pauperis, 28
U.S.C. § 1915(e)(2)(B)(ii) applies. That statute requires the Court to dismiss the complaint if it
fails to state a claim. Whether a complaint fails to state a claim under § 1915(e)(2)(B)(ii) is
governed by the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d Cir. 1999), which
requires the Court to determine whether the complaint contains “sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556

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U.S. 662, 678 (2009) (quotations omitted). Conclusory statements and naked assertions will not
suffice.

Id.

The Court may also dismiss claims based on an affirmative defense if the

affirmative defense is obvious from the face of the complaint. See Ray v. Kertes, 285 F.3d 287,
297 (3d Cir. 2002); see also McPherson v. United States, 392 F. App’x 938, 943 (3d Cir. 2010).
The Court may also consider matters of public record. Buck v. Hampton Twp. Sch. Dist., 452
F.3d 256, 260 (3d Cir. 2006). As Kennedy is proceeding pro se, the Court construes his
allegations liberally. Higgs v. Att’y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
III.
To state a claim under § 1983, a plaintiff must allege the violation of a right secured by
the Constitution and laws of the United States, and must show that the alleged deprivation was
committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
Kennedy’s Second Amended Complaint fails to allege a meritorious claim against any of the
named defendants.
A. Claims against the City, Police Department, Mayor Kenney, and
Commissioner Ross
Kennedy has not stated a claim against the City of Philadelphia because he has not
alleged a municipal custom or policy that led to the violation of his rights. Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 691 (1978) (municipal liability under § 1983 must be predicated upon
a municipal policy or custom).

Furthermore, the Philadelphia Police Department is not a

separate legal entity that can be sued. See Regalbuto v. City of Phila., 937 F. Supp. 374, 377
(E.D. Pa. 1995). Moreover, nothing in the Second Amendment Complaint plausibly suggests
that Mayor Kenney and Commissioner Ross had any personal involvement in Kennedy’s case
such that they could be held responsible for anything related to Kennedy’s prosecution. See

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Barkes v. First Corr. Med., Inc., 766 F.3d 307, 320 (3d Cir. 2014), reversed on other grounds,
Taylor v. Barkes, 135 S. Ct. 2042 (2015).
B. Claims against the Police Officers
According to Kennedy, the named police officers violated his rights on October 30, 2014
by arresting him “without probable cause and without a search warrant.” (Second Am. Compl. ¶
1.) He also contends that on November 17, 2014, Officer McCauley violated his rights by
“testif[ying] . . .that he went and [obtained] a search warrant[,] committing [perjury] and
falsification.” (Id. ¶ 2.) Kennedy alleges that all of the named officers conspired to violate his
rights. (Id. ¶¶ 1-2.)
In § 1983 actions, federal courts courts apply the statute of limitations governing personal
injury claims in the state where the cause of action arose. Wallace v. Kato, 549 U.S. 384, 387
(2007). In Pennsylvania, the relevant statute of limitations is two years. See 42 Pa. Cons. Stat.
§ 5524. The limitations period begins to run from the time “the plaintiff knew or should have
known of the injury upon which [his] action is based.” Sameric Corp. of Del., Inc. v. City of
Phila., 142 F.3d 582, 599 (3d Cir. 1998). Here, Kennedy alleges he was falsely arrested on
October 30, 2014, so his claim accrued on that date. See Montgomery v. De Simone, 159 F.3d
120, 126 (3d Cir. 1998). His claim regarding false testimony accrued on November 14, 2014,
when Kennedy knew or should have known that Officer McCauley testified falsely. Kennedy
did not file his initial complaint until May 17, 2017—more than two years after he knew or
should have known of the basis for these claims.1 Accordingly, these claims are time-barred.

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When Kennedy filed his initial complaint, he was incarcerated at the Curran-Fromhold
Correctional Facility. Pursuant to the prison mailbox rule, a prisoner’s complaint is considered
filed at the time he or she hands it over to prison authorities for forwarding to the Court. See
Houston v. Lack, 487 U.S. 266, 276 (1988). The initial complaint reflects that Kennedy gave it
to prison authorities for mailing on May 17, 2017.
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As noted above, Kennedy’s criminal proceedings were dismissed and a mistrial was
declared. According to the docket sheet, the mistrial was attributed to “intentional conduct” by
Officer McCauley.

While Kennedy has asserted malicious prosecution claims, the Second

Amended Complaint, as pled, fails to state a malicious prosecution claim against Officer
McCauley based upon his conduct at trial. Given Kennedy’s pro se status, it would be in the
interest of justice to allow Kennedy leave to file a third amended complaint solely against
Officer McCauley.
C. Claims against the District Attorneys
Kennedy next alleges that the Philadelphia District Attorney’s Office “decided to
prosecute [him] knowing they didn’t have a solid case against [him].” (Second Am. Compl. ¶ 2.)
According to Kennedy, Assistant District Attorney Kelly “knew from the very beginning that
Officer McCauley ‘5026’ was lying and decided to conspire[] with him to violate [Mr.
Kennedy’s] constitutional rights.” (Id.) Kelly “knew that she was lacking probable cause and a
search warrant” but “still move[d] forward with prosecuting [Kennedy] without the proper
documents.” (Id.) According to Kennedy, District Attorney Seth Williams and Assistant District
Attorneys Tumolo, Malloy, Andress, Jenemann, Iannacone, Golden, Wainwright, Buntin,
Kermey, and Meintel also conspired to violate his constitutional rights. (Id.) The named
prosecutors, however, are entitled to absolute prosecutorial immunity from any claims for
monetary damages based on their involvement in Kennedy’s prosecution. See Van de Kamp v.
Goldstein, 555 U.S. 335, 348-49 (2009); Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).
D. Claims against the Defense Attorneys
Kennedy also contends that defense attorneys Keir Bradford-Grey, Marit Anderson,
Joseph Patrick McPeak, Tess Senderowicz, and Jilozian Edwards violated his constitutional

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rights during his criminal proceedings. However, public defenders and defense attorneys are not
state actors subject to liability under § 1983 by virtue of their representation of criminal
defendants. See Polk Cty. v. Dodson, 454 U.S. 312, 325 (1981). Kennedy’s claims against these
defendants are dismissed accordingly.
E. Claims against the Judges
Finally, Kennedy claims that Judge Eubanks “knew from the beginning that this was a
frivolous case and still held this case over for trial.” (Second Am. Compl. ¶ 3.) He contends that
Judge Eubanks “knew that she never signed or sealed a[n] affidavit or search warrant.” (Id.)
Kennedy alleges that Judge Eubanks conspired with Judges Woods-Skipper, Sanuck, Erdos,
Anders, and Campbell to violate his constitutional rights. (Id.) Kennedy’s claims against the
named Judges, however, are legally frivolous because absolute judicial immunity precludes
Kennedy from asserting constitutional claims under § 1983 based on the way the Judges handled
matters in state court. See Azubuko v. Royal, 443 F.3d 302, 303-04 (3d Cir. 2006) (per curiam)
(discussing judicial immunity and amendments to § 1983 limiting injunctive relief against a
judicial officer).
IV.
For the foregoing reasons, the Court dismisses Kennedy’s Second Amended Complaint
for failure to state a claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). The Court dismisses with
prejudice Kennedy’s claims against any immune defendants and his public defenders, as well as
his claims challenging his arrest and the provision of allegedly false testimony on November 17,
2014, because amendment to those claims would be futile. See Grayson v. Mayview State Hosp.,
293 F.3d 103, 112-13 (3d Cir. 2002). Kennedy will be given leave to file a third amended
complaint with respect to any malicious prosecution claim he may wish to assert against Officer

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McCauley regarding McCauley’s conduct during Kennedy’s trial. If Kennedy wishes to file a
third amended complaint, he must describe in detail his claims against Officer McCauley, the
facts giving rise to those claims, and how he was harmed. A blank copy of a form complaint will
be included, which Kennedy may use to file his third amended complaint. An appropriate order
follows, which shall be docketed separately.

/s/ Gerald J. Pappert

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