ALLEN v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

BAKEER ALLEN : CIVIL ACTION

:

v. :

:

CITY OF PHILADELPHIA, et al. : NO. 19-1066

MEMORANDUM

Bartle, J. January 10, 2020

Bakeer Allen commenced this civil rights action

against the City of Philadelphia, Philadelphia Detective

Michael Rocks, Police Officer Sergeant Nicholas Morris, and

Police Officers Anthony Mirabella, III, Brad McCabe,

Milor Cecle, Jr., Drew Rice, and Joseph Mears (the “defendants”)

in connection with Allen’s arrest and prosecution for possessing

marijuana and a firearm as a felon. Allen brings claims for

false arrest, excessive force, false imprisonment, malicious

prosecution, and civil conspiracy under 42 U.S.C. § 19831 and

under Pennsylvania law.2 Before the court are the cross-motions

1. Section 1983 provides a cause of action against state

actors for the violation of a party’s civil rights. See

42 U.S.C. § 1983. While Allen alleges civil conspiracy under

§ 1983, it is 42 U.S.C. § 1985, not § 1983, that provides a

cause of action against those who conspire to violate one’s

civil rights. See 42 U.S.C. § 1985. We will deem Allen to have

pleaded the proper statute as no prejudice to the defendants has

occurred.

2. It is not clear from the complaint what claims Allen sets

out against each defendant and under what law. However, Allen

characterizes his claims in response to the summary judgment

of the parties for summary judgment on all claims under Rule 56

of the Federal Rules of Civil Procedure.3

I

Summary judgment is appropriate under Rule 56 “if the

movant shows that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett,

477 U.S. 317, 323 (1986). A dispute is genuine if the evidence

is such that a reasonable factfinder could return a verdict for

the nonmoving party. See Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 254 (1986). We view the facts and draw all

inferences in favor of the nonmoving party. See In re Flat

Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir. 2004).

Summary judgment is granted where there is insufficient

record evidence for a reasonable factfinder to find for the

nonmovant. See Anderson, 477 U.S. at 252. “The mere existence of

a scintilla of evidence in support of the [nonmoving party]’s

position will be insufficient; there must be evidence on which the

jury could reasonably find for [that party].” Id. In addition,

Rule 56(e)(2) provides “[i]f a party fails to properly support an

motions of the defendants. He denominates the same causes of

action under both § 1983 and Pennsylvania law.

3. Allen stipulated to dismiss his civil conspiracy claims

against officer Cecle.

assertion of fact or fails to properly address another party’s

assertion of fact as required by Rule 56(c), the court may . . .

consider the fact undisputed for the purposes of the motion.”

Fed. R. Civ. P. 56(e)(2).

II

The following facts are undisputed. On Friday,

February 24, 2017, an anonymous 911 caller reported that a group

of men were shooting dice in front of a Chinese restaurant at

the intersection of 25th and Harlan Streets in Philadelphia.

The caller reported that the men were armed but did not provide

an identifying description. Shortly after, police in the area

received a radio call which reported a group of men shooting

dice in front of the Chinse restaurant. The dispatcher reported

the possibility that some of the men were armed but that the

information was not confirmed. Two police cars drove toward the

intersection of 25th and Harlan Streets to investigate.

Defendant Police Officers Mirabella and McCabe were

the first to arrive. While the officers saw men in front of the

restaurant and observed no criminal activity, they questioned

the men. Allen, who was among the group, began to walk toward

the back. Officer McCabe, saying “hey,” approached Allen.

Allen stopped briefly and then began to run east on Harlan

Street.

Officers Cecle and Rice were in the second car. They

were turning their police SUV west onto Harlan Street right

around the time Allen began to run east. They saw Allen running

toward them with Officer McCabe on foot behind him. The three

officers apprehended and searched Allen. A loaded 9-millimeter

Glock 19 handgun was tucked into his waistband and marijuana was

found in his pocket. The officers arrested him.4

The following day, on February 25, 2017, Allen

attended a preliminary arraignment before Philadelphia

Arraignment Court Magistrate Jane M. Rice on charges of:

(1) “Persons not to Possess, Use, Manufacture, Control, Sell or

Transfer Firearms”; (2) “Firearms Not to be Carried without a

License”; (3) “Carrying Firearms on Public Streets or Public

Property in Philadelphia”; and (4) possession of a small amount

of marijuana. Magistrate Rice detained Allen, who was unable to

make bail in the amount of 10% of $150,000. At a preliminary

hearing on March 13, 2017, Philadelphia Municipal Court Judge

Joffie C. Pittman held Allen over for trial in the Court of

Common Pleas of Philadelphia County. Allen was formally

arraigned on March 27, 2017.

4. Allen and the defendants dispute many of the events which

surround his arrest. These disputes are immaterial to our

analysis.

Allen moved to suppress the gun, ammunition and

marijuana before his trial. Common Pleas Judge Roxanne E.

Covington held two hearings on the motion on October 17 and

October 19, 2017. Officers Mirabella and Celce testified at the

hearing as to the events which surrounded Allen’s arrest.

Allen offered the testimony of Anthony Goodwin who witnessed

Allen’s arrest and the events that led up to it. Officer McCabe

who approached Allen in front of the Chinese restaurant did not

testify.

At the hearing, Goodwin’s account of events largely

contradicted that of Officers Mirabella and Celce.

Judge Covington credited Goodwin’s testimony and discredited

that of Officers Mirabella and Celce. Finding there was no

reasonable suspicion for Officer McCabe to stop Allen in front

of the Chinese restaurant, the judge granted the motion. The

Commonwealth of Pennsylvania subsequently moved for entry of a

nolle prosequi dismissing all charges. On November 20, 2017,

Judge Covington granted the nolle prosequi, and Allen was

released after a nine-month pretrial detention. He filed this

action on March 13, 2019.

III

Defendants argue that Allen’s Section 1983 claims for

false arrest, excessive force, false imprisonment, and civil

conspiracy are barred by the applicable statute of limitations.5

Section 1983 does not specify a limitations period.

See 42 U.S.C. § 1983.6 The statute of limitations for Section

1983 claims is that of the most analogous state-law tort claim.

Wilson v. Garcia, 471 U.S. 261, 276 (1985). Allen characterizes

his Fourth Amendment claims as false arrest, excessive force,

and false imprisonment and alleges conspiracy in connection with

these claims. He supports these claims with the same factual

allegations that support his Pennsylvania false arrest,

excessive force, false imprisonment, and civil conspiracy

5. Defendants also argue that plaintiff’s claims against the

City of Philadelphia fail under Monell v. Dep’t of Soc. Servs.

of City of New York, 436 U.S. 658 (1978), because he has not

produced evidence that the City had a policy or custom which

resulted in the violation of his civil rights. Since we are

dismissing all of Allen’s federal civil rights claims on other

grounds, we need not discuss Monell.

6. 42 U.S.C. § 1983 in relevant part provides:

Every person who, under color of [state

law], subjects, [] any citizen of the

United States [] to the deprivation of

any rights, privileges, or immunities

secured by the Constitution and laws,

shall be liable to the party injured in

an action [] for redress. . . .

claims. Therefore, we apply the two-year statute of limitations

set out for such claims under 42 Pa.C.S. § 5524(1).7

Section 1983 false arrest and false imprisonment

claims accrue when the claimant is detained pursuant to legal

process. Wallace v. Kato, 549 U.S. 384, 389 (2007). Detention

pursuant to legal process occurs when, for example, the claimant

“is bound over by a magistrate or arraigned on charges.” Id.

As noted, Allen was arrested on February 24, 2017. He attended

his preliminary arraignment before Magistrate Rice on February

25, 2017. Following Wallace, our Court of Appeals has held that

a preliminary arraignment in Pennsylvania connotes legal

process.8 McCracken v. Wells Fargo Bank NA, 634 F. App’x 75, 79

(3d Cir. 2015). A claim for excessive force clearly accrues

when the force is applied. Therefore, Allen’s § 1983 claims for

7. The statute specifically references false arrest and false

imprisonment. It also references assault and battery, which is

analogous to excessive force. The statute of limitations for a

civil conspiracy claim under Pennsylvania law is that for the

underlying action which forms the basis of the conspiracy.

Kingston Coal Co. v. Felton Mining Co., 690 A.2d 284, 287 n. 1

(Pa. 1997); see also Sabella v. Appalachian Development Corp.,

103 A.3d 83, 92 (Pa. Super. 2014).

8. In Philadelphia, a criminal defendant appears first for a

preliminary arraignment before an Arraignment Court Magistrate

on or about the day he or she is arrested. See Phila. M.C.R.

Crim. P., A.C.M., Sec. 540. If there was no warrant issued for

the arrest and the defendant is to be detained pretrial, the

Arraignment Court Magistrate must make an initial determination

as to whether probable cause existed for the arrest.

Pa. R. Crim. P. 540.

false arrest and false imprisonment accrued on February 25,

2017. His § 1983 claim for excessive force accrued on February

24, 2017 when he had his encounter with the police.

Federal civil conspiracy claims related to false

arrest, excessive force, and false imprisonment begin to run

when the underlying claims accrue.9 Jones v. Middletown Twp.,

253 F. App’x 184, 187 (3d Cir. 2007). “[T]ime-barred claims

cannot be resurrected by being aggregated and labeled

‘continuing violations’ under a theory of conspiracy.” Id.

(citation omitted). Therefore, the statute of limitations for

Allen’s federal civil conspiracy claims related to his false

arrest and false imprisonment began to run on February 25, 2017.

His federal civil conspiracy claim related to excessive force

accrued on February 24, 2017.

Allen commenced this action on March 13, 2019 which is

more than two years after he was arrested on February 24, 2017

and detained pursuant to legal process on February 25, 2017.

9. 42 U.S.C. § 1985 in relevant part provides:

If two or more persons . . . conspire . . .

for the purpose of depriving . . . any

person . . . of the equal protection of the

laws, or of equal privileges and immunities

under the laws . . . the party so injured

. . . may have an action for the recovery of

damages . . . against any one or more of the

conspirators.

The time for bringing his federal claims for false arrest,

excessive force, false imprisonment, and civil conspiracy had

therefore expired. For this reason, we will grant summary

judgment in favor of the defendants on all of Allen’s federal

claims. Allen’s summary judgment motion will be denied with

respect to these claims.

IV

Defendants argue that they are entitled to summary

judgment on Allen’s § 1983 claim for malicious prosecution

because he is not innocent of the underlying charges.

To succeed on a claim for malicious prosecution under

§ 1983 a claimant must prove:

(1) the defendants initiated a criminal

proceeding; (2) the criminal proceeding

ended in plaintiff's favor; (3) the

proceeding was initiated without probable

cause; (4) the defendants acted maliciously

or for a purpose other than bringing the

plaintiff to justice; and (5) the plaintiff

suffered deprivation of liberty consistent

with the concept of seizure as a consequence

of a legal proceeding.

Estate of Smith v. Marasco, 318 F.3d 497, 521 (3d Cir. 2003).

The claimant must also establish that he is innocent of the

crime charged in the criminal proceeding. Hector v. Watt,

235 F.3d 154, 156 (3d Cir. 2000).

Allen has not come forward with any evidence of his

innocence. To the contrary, Allen admits that he possessed a

firearm and marijuana when he was arrested. He also admits that

he was a convicted felon at the time. Allen appears instead to

rely on Judge Covington’s grant of nolle prosequi after she

suppressed the gun, ammunition, and marijuana.

A judge’s decision to grant a nolle prosequi after

suppressing evidence does not signify innocence. See Heidelberg

v. City of Erie Police Dep’t, Civil Action No. 14-0116, 2015 WL

1431058, at *4 (W.D. Pa. Mar. 27, 2015). It signifies only that

the prosecution decided not to proceed after certain evidence

was suppressed. Id.

For this reason, we will grant summary judgment in

favor of the defendants on Allen’s § 1983 claim for malicious

prosecution. Allen’s summary judgment motion will be denied

with respect to this claim.

Defendants argue that if summary judgment is granted

on Allen’s § 1983 claim for malicious prosecution, they are also

entitled to summary judgment on Allen’s related federal claim

for civil conspiracy. To succeed on a federal claim for civil

conspiracy, a claimant must prove that persons acting under the

color of state law conspired to deprive him or her of a federal

protected right. Ridgewood Bd. of Educ. v. N.E. ex rel. M.E.,

172 F.3d 238, 254 (3d Cir. 1999). A claimant cannot succeed on

a federal claim for civil conspiracy if the underlying civil

rights claims are dismissed. See Ashton v. City of Uniontown,

459 F. App’x 185, 191 (3d Cir. 2012). Because we are dismissing

Allen’s § 1983 claims for malicious prosecution, no underlying

claim remains to support his claim for civil conspiracy.

Therefore, we will grant summary judgment in favor of

the defendants on Allen’s federal civil conspiracy claim.

Allen’s summary judgment motion will be denied with respect to

this claim.

V

Defendants also argue that Allen’s supplemental state

law claims for false arrest, excessive force, and false

imprisonment are barred by the applicable statute of

limitations.

As noted, a claimant alleging these three causes of

action must bring them within two years in Pennsylvania.

42 Pa.C.S. § 5524(1). The limitations period for false arrest

and false imprisonment claims under Pennsylvania law begins to

run on the date of the alleged unlawful arrest. Thomas-Warner

v. City of Philadelphia, Civil Action No. 11-5854, 2011 WL

6371898, at *5 (E.D. Pa. Dec. 20, 2011); Moore v. McComsey,

459 A.2d 841, 843 (Pa. Super. 1983). The claim of excessive

force, of course, accrues when the excessive force is applied.

Allen was arrested on February 24, 2017. Therefore,

his Pennsylvania claims for false arrest and false imprisonment

accrued on that date, and thus the limitations period expired

before he filed this action on March 13, 2019. For this reason,

we will grant summary judgment in favor of the defendants on

Allen’s Pennsylvania claims for false arrest, excessive force

and false imprisonment. Allen’s summary judgment motion will be

denied with respect to these claims.

VI

There remain Allen’s claims under Pennsylvania law for

malicious prosecution and civil conspiracy related to his claims

for false arrest, excessive force, and false imprisonment.

These claims raise complex issues of state law. For this reason

and because all claims over which this court has original

jurisdiction have been resolved against the plaintiff, we

decline to exercise jurisdiction over these remaining claims.

See 28 U.S.C. § 1367(c)(1) and (3). They will be dismissed

without prejudice.