THORPE v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

DWAYNE THORPE, :

Plaintiff : CIVIL ACTION

v. :

CITY OF PHILA., et al, : No. 19-5094

Defendants :

MEMORANDUM

PRATTER, J. AUGUST 31, 2020

Dwayne Thorpe was incarcerated for nearly eleven years for a murder that he did not

commit. He alleges that various Philadelphia police officers—Det. James Pitts, Det. Timothy

Scally, Det. Angela Gaines, Det. Henry Glenn, Det. John Cummings, Sgt. Frank Hayes, Sgt. Ron

McClane, and Lt. Philip Riehl—and the City played a role in advancing the investigatory

misconduct that led to his wrongful conviction. Through the filing of two motions to dismiss,! the

Court has been asked to dismiss all claims against Defendants Gaines, Glenn, Cummings, Hayes,

Riehl, and McClane; the Fourteenth Amendment malicious prosecution claim as to Det. Scally;

and the Fourteenth Amendment and state-law malicious prosecution claims with respect to the

City.

For the reasons discussed below, the Court dismisses (i) Mr. Thorpe’s failure-to-intervene

claim as to Defendants Gaines, Glenn, Cummings, Hayes, Riehl, and McClane; (ii) the Fourteenth

Defendants Gaines, Glenn, Hayes, McClane, Riehl, Scally, and the City collectively submitted one

motion, and Beverly Cummings submitted another motion. Beverly Cummings is the legal representative _

of the estate of her late husband, John Cummings. This Memorandum refers to John Cummings and

Beverly Cummings, in her legal capacity as a representative of the estate and a named party in this action,

collectively as “Det. Cummings.”

Amendment malicious prosecution claim against all properly moving defendants;? (iii) the state

malicious prosecution claim with respect to the City; and (iv) the fabrication-of-evidence claim as

to Det. Gaines.

BACKGROUND

I. Procedural Background

Mr. Thorpe initiated this action in October 2019 against the City and Defendants Pitts,

Scally, Gaines, Glenn, Cummings, Hayes, McClane, and Riehl, all of whom were Philadelphia

police officers associated with the homicide investigation at issue. The City and Defendants

Gaines, Glenn, Hayes, McClane, Riehl, and Scally filed a motion to partially dismiss Mr. Thorpe’s

initial complaint for a failure to state a claim. Shortly thereafter, Mr. Thorpe submitted a consent

motion to file an amended complaint to name Beverly Cummings as a defendant, in her capacity

as the personal representative of John Cummings’ estate. The Court granted the consent motion

and deemed moot the initial motion to dismiss. .

Mr. Thorpe amended complaint pleads the following causes of action:

e Count I: 42 U.S.C. § 1983 Deprivation of Liberty without Due Process of Law and

Denial of a Fair Trial by Fabricating Evidence and Withholding Material Exculpatory

and Impeachment Evidence against all individual defendants;

e Count II: 42 U.S.C. § 1983 Malicious Prosecution in Violation of the Fourth and

Fourteenth Amendments against all individual defendants;

e Count IIT: 42 U.S.C. § 1983 Civil Rights Conspiracy against all individual defendants;

e Count IV: 42 U.S.C. § 1983 Failure to Intervene against all individual defendants;

2 As discussed below, see infra Discussion § IV.B, the City argues that the Court should dismiss a

Fourteenth Amendment malicious prosecution claim against it, even though Mr. Thorpe did not actually

allege such a claim as to the City. Accordingly, the Court deems moot the motion to dismiss filed by

Defendants Gaines, Glenn, Cummings, Hayes, Riehl], McClane, Scally, and the City only to the extent it □

advances this argument. Even if Mr. Thorpe did bring such a claim against the City, it would fail for the

reasons discussed below.

e Count V: 42 U.S.C. § 1983 Supervisory Liability claim against Sgt. Hayes, Sgt.

McClane, and Lt. Riehl;

e Count VI: 42 U.S.C. § 1983 Municipal Liability claim against the City; and

e Count VII: Malicious Prosecution under Pennsylvania state law against all defendants.

In February 2020, the City and Defendants Gaines, Glenn, Hayes, McClane, Riehl, and

Scally again moved to partially dismiss the amended complaint. Det. Cummings also filed a

motion to dismiss in April 2020. Collectively, the moving defendants request the Court to dismiss

(1) all claims against Defendants Gaines, Glenn, Cummings, Hayes, McClane, and Riehl; (2) the

Fourteenth Amendment malicious prosecution claim with respect to Det. Scally; and (iii) the

Fourteenth Amendment and state-law malicious prosecution claims as to the City. In his response

in opposition to the first motion, Mr. Thorpe agreed that his state malicious prosecution claim as

to the City should be dismissed. The Court ordered the parties to supplement their briefing

regarding their qualified immunity arguments and held oral argument for both motions. As

requested during oral argument, the Court also permitted Mr. Thorpe an opportunity to submit

supplemental briefing regarding the moving individual defendants’ immunity argument as to the

state malicious prosecution claim, which was first articulated in Defendants’ supplemental

briefing.

Rather than joining either motion to dismiss, Det. Pitts filed an answer to the amended

complaint.

IL. Factual Background?

A. The Shooting of Hamin Span

On July 4, 2008, around 11:00 a.m., thirty-year-old Hamin Span and his fifteen-year-old

3 In ruling on these motions to dismiss, the Court must accept the facts presented in the amended

complaint in the light most favorable to Mr. Thorpe and “accept all of the allegations as true.” ALA, Inc. v.

CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994).

brother, Nyfeese Robinson, were running errands in the Kensington neighborhood of Philadelphia

in preparation for an Independence Day block party. On their way to a store, a teenage young man

rode up to the pair on a bicycle and shouted to Mr. Span that he wanted “to continue a fight the

two had had the day before.” Am. Compl. at 29 (Doc. No. 33). After Mr. Span confronted and

walked toward the teen, the teen retreated inside a home. The brothers then walked to the store

and conducted their errand. On their way home, the teen again rode his bicycle toward the pair

and began shouting to Mr. Span from across the street. The teen pulled out a .32 caliber handgun

and fired several shots at the brothers, shooting Mr. Span multiple times. Mr. Span died shortly

after the police arrived at the scene. At the time of the shooting, Mr. Thorpe was in a different

neighborhood in Philadelphia preparing for another Independence Day block party.

B. Det. Pitts’ Pattern of Investigative Misconduct

Mr. Thorpe alleges that the lead detective assigned to the Span shooting, Det. Pitts, engaged

in a pattern of fabricating and coercing false statements from witnesses, typically by using physical

harm or threats. From early 2007 to late 2013, Det. Pitts engaged in investigative misconduct in

at least twelve other investigations or incidents, at least two of which having occurred before this

shooting. |"

C. The Span Shooting Investigation

1. Police Officers Arrive at the Scene

The police officers that arrived at the scene identified three potential eyewitnesses to the

shooting, including Mr. Robinson. The eyewitnesses all provided the same description of the

shooter: “18-years-old, 5’8” Black male with a thin build, wearing a white T-shirt, blue jean shorts,

and gray cap, and riding an aqua-colored bicycle.” Jd. at 936. Sgt. Hayes and homicide detectives

arrived at the crime scene around 1:00 p.m. After conducting neighborhood interviews, the police

learned that Torn Bytheway observed Mr. Span arguing with a young Black teenager who rode a

bicycle past Mr. Span’s house.

2. Mr. Robinson’s First Interview

The police officers transported Mr. Robinson to the Homicide Unit where Dets. Pitts,

Scally, and Cummings interviewed him. The detectives spoke to Mr. Robinson for a period of

time before beginning to type Mr. Robinson’s statement, allegedly intentionally failing to record

the full interview. According to Mr. Thorpe, the detectives did not ask and/or failed to record

answers to standard interview questions, such as the age of and height of the shooter, whether the

shooter had any distinctive features, and what Mr. Robinson knew about the dispute he witnessed

between Mr. Span and the shooter. Mr. Robinson’s statement described the male shooter as “light-

brown skin, thin, white tee shirt and a brown hat[.]” Jd. at J 43.

Dets. Pitts, Scally, and Cummings also showed Mr. Robinson a photo array, but Mr.

Robinson was unable to make an identification. The detectives intentionally failed to record any

information concerning the photo array. Upon information and belief, the detectives failed to

preserve and/or destroyed information concerning the photo array “because they believed it would

be harmful to an eventual prosecution.” Jd. at J 46.

3. The Third-Floor Rear Apartment

Det. Glenn reported that Mr. Robinson identified 3045 Frankford Avenue as the building

he had seen the shooter enter, which was a complex with separate apartment units. Upon

information and belief, Dets. Pitts, Glenn, and Cummings misrepresented that residents identified

the third-floor rear apartment as the shooter’s residence. Based on this misrepresentation, the

officers obtained a warrant to search the third-floor rear apartment. On the day of the shooting,

Dets. Pitts, Scally, Cummings, Gaines, and Glenn and Sgt. Hayes executed the warrant and

recovered various items, including a .380 caliber handgun and a photograph of two Black young

men, one of which being Mr. Thorpe. According to Mr. Thorpe, he did not own any of the physical

evidence recovered, nor was any of the physical evidence connected to the shooting.

4. Statement from Senetra Stones

Lt. Riehl and Sgt. McClane directed Det. Pitts to interview Senetra Stones, the leaseholder

of the third-floor rear apartment four days after the shooting. Ms. Stones explained that she

previously lived in the apartment with her then-boyfriend, Allen Chamberlain, but that she no

longer lived there. She identified one of the two men in the photograph as Mr. Thorpe. Dets. Pitts

and Scally then showed Ms. Stones a blurry surveillance video from a grocery store in an attempt

to have her identify the individual riding a bieycle in the video. Ms. Stones told Dets. Pitts and

Scally that she was unable to make an identification and that she had no information about the

shooting or the person in the video. Dets. Pitts and Scally allegedly held Ms. Stones at the police

station for hours, pressuring her to tell them that Mr. Thorpe was the person in the surveillance

video. Det. Pitts repeatedly showed Ms. Stones the photograph and insisted that Mr. Thorpe was

the shooter. After Ms. Stones stated that Mr. Thorpe was not the person in the video, Det. Pitts

threatened to take away her children and to arrest her for items found in the apartment if she did

not identify Mr. Thorpe as the person in the video. Dets. Pitts and Scally then wrote a question-

and-answer style statement to make-it appear as though Ms. Stones voluntarily stated that the

individual in the surveillance video looked like Mr. Thorpe. Ms. Stones did not testify at trial.

5. Statement from Allen Chamberlain

The next day, Sgt. McClane and Lt. Riehl directed Det. Pitts to interview Mr. Chamberlain.

Although Mr. Chamberlain denied any knowledge of the murder, Det. Pitts allegedly coerced Mr.

Chamberlain to implicate Mr. Thorpe. Det. Pitts punched Mr. Chamberlain in the stomach,

threatened to charge Mr. Chamberlain with murder, and, upon discovering that Mr. Chamberlain’s

infant son’s mother recently passed away, threatened to call the Department of Human Services to

have his son taken away if he did not comply. Mr. Chamberlain acquiesced after the last threat.

Det. Pitts drafted a fabricated question-and-answer style statement falsely suggesting that Mr.

Chamberlain communicated that he interacted with Mr. Thorpe inside the apartment shortly before

the murder. The false statement explained that Mr. Thorpe described a dispute with someone on

the block concerning a drug sale and implied that Mr. Thorpe would use a gun to take care of the

problem. The statement also states that Mr. Chamberlain saw two guns inside the apartment, one

of which being either a .25 or .32 caliber gun.

6. Statement from Mr. Robinson

The next day, Dets. Pitts and Scally interviewed Mr. Robinson for a second time. Det. Pitts

allegedly used coercion, suggestion, and/or other impermissible tactics to induce Mr. Robinson to

identify Mr. Thorpe in a photo array and “fed [Mr.] Robinson details” in order to have him describe

the shooter inconsistently from his initial statement and in a way that would inculpate Mr. Thorpe.

Id. at § 82. Dets. Pitts and Scally did not report that they coerced Mr. Robinson to identify Mr.

Thorpe.

7. Identification from Tammy Gault

Because Tammy Gault witnessed the shooting while waiting for the bus, she was

interviewed at the Homicide Unit on the day of the shooting. Det. Scally typed another question-

and-answer style report which included various statements that Ms. Gault allegedly never made.

Dets. Pitts and Scally presented the same photo arrays that had been shown to Mr. Robinson to

Ms. Gault. Although Ms. Gault repeatedly told them that she had not seen the shooter’s face, Dets.

Pitts and Scally continued to direct and pressure her into identifying Mr. Thorpe. Due to this

coercion, Ms. Gault circled and signed Mr. Thorpe’s photo. Ms. Gault did not appear at trial.

8. John Bytheway

After conducting neighborhood interviews on the day of the shooting, the officers learned

that John Bytheway observed on the day before the shooting Mr. Span arguing with a Black man

in his late teens who was riding a bicycle. Det. Gaines interviewed Mr. Bytheway at the Homicide

Unit. Dets. Pitts, Scally and/or Gaines either omitted the fact that they presented a photo array to

Mr. Bytheway and he did not identify Mr. Thorpe or they never presented the photo array because

they knew he would not identify Mr. Thorpe.

9. Gary McKeen

Gary McKeen also saw the shooter flee the day of the shooting. Dets. Pitts and/or Scally

interviewed Mr. McKeen at the Homicide Unit. According to Mr. Thorpe, Dets. Pitts and/or

Scally intentionally omitted the photo array from reports or never presented a photo array to Mr.

McKeen. Mr. McKeen was not called to testify at trial.

10. Physical Evidence

Mr. Thorpe alleges that the individual defendants either failed to take a number of basic

investigative steps during the investigation and that supervisors Sgt. Hayes, Sgt. McClane, and Lt.

Riehl knowingly failed to ensure that these steps occurred, or, alternatively, that Dets. Pitts and

Scally failed to report exculpatory results of ahy investigate steps that were taken. For instance,

Dets. Pitts and Scally either did not try to recover fingerprints and/or DNA from the .32 caliber

and/or failed to report that they had done so. Moreover, the identification of the aqua bicycle that

had been described by multiple witnesses was never recovered and/or Dets. Pitts and Scally failed

to report exculpatory results of investigative steps taken to find the bicycle or determine its owner.

Dets. Pitts and Scally also failed to collect and/or analyze basic forensic information to determine

the true identity of the apartment’s occupants and failed to investigate and/or record efforts to

investigate individuals associated with the apartment.*

11. Supervision of Lt. Riehl, Sgt. McClane, and Sgt. Hayes

_ Lt. Riehl, Sgt. McClane, and Sgt. Hayes supervised the activity of the defendant detectives

at all times during the Span investigation. Upon information and belief, the three were aware of

the other defendants’ investigatory misconduct throughout this investigation and either

affirmatively condoned or failed to prevent, address, or report it.°

D. Mr. Thorpe’s Trial and Conviction

Mr. Thorpe alleges that the only trial evidence supporting his guilty verdict was tainted by

Defendants’ misconduct. Mr. Robinson was the only witness to identify Mr. Thorpe as the shooter

at trial, which Mr. Thorpe asserts was a product of improper suggestion. Mr. Robinson also

presented a fabricated claim that the shooter stated that he was twenty-five years old, the same age

as Mr. Thorpe. Although Mr. Chamberlain’s fabricated and coerced statement was presented at

trial, Mr. Chamberlain truthfully testified that the statement he signed was false and that he only

signed it because Det. Pitts coerced him. Mr. Thorpe presented four alibi witnesses who testified

that Mr. Thorpe was at another block party at the time’of the eneenne! According to Mr. Thorpe,

the jury convicted him based on Mr. Robinson’s in-court identification and Mr. Chamberlain’s

statement. Mr. Thorpe was sentenced to life imprisonment.

«The City points out that some of Mr. Thorpe’s allegations appear as though they may be attempting

to advance a “failure-to-investigate” claim. See Thomas v. City of Phila., 290 F. Supp. 3d 371, 386 (E.D.

Pa. 2018) (declining to affirmatively recognize an independent cause of action for a failure to investigate).

At oral argument, Mr. Thorpe’s counsel confirmed that he is not advancing such a claim in this action.

5 More specific allegations regarding the supervisory defendants are articulated above.

E. Mr. Thorpe’s Exoneration

In November 2013, the Philadelphia Daily News published an priclerersiline how three

murder prosecutions handled by Det. Pitts collapsed amidst accusations that he had coerced false

statements by using threats and physical violence. In 2015, Mr. Thorpe filed a petition for a new

trial under the Post-Conviction Relief Act. Mr. Thorpe was granted a new hearing to present

evidence concerning Det. Pitts’ reputation for using coercive actions in 2016. At the hearing, ten

individuals testified that they experienced instances of coercion and fabrication involving Det.

Pitts, and that these coercive interrogations took place throughout the majority of Det. Pitts’ career

in the Homicide Unit. In November 2017, the presiding judge vacated Mr. Thorpe’s convictions

and ordered a new trial. The Conviction Integrity Unit of the Philadelphia County District

Attorney’s Office undertook a reinvestigation into Mr. Thorpe’s case. Upon the Conviction

Integrity Unit’s recommendation, the District Attorney’s Office dismissed the charges against Mr.

Thorpe in March 2019. Mr. Thorpe was released from custody after nearly eleven years of

incarceration.

LEGAL STANDARDS

I. Rule 12(b)(6)

A Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint. Rule 8 of the

Federal Rules of Civil Procedure requires only “a short and plain statement of the claim showing

that the pleader is entitled to relief.” Feb. R. Cv. P. 8(a)(2). However, “to ‘give the defendant

fair notice of what the . . . claim is and the grounds upon which it rests,”” the plaintiff must provide

“more than labels and conclusions, and a formulaic recitation of the elements of a cause of action

will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted) (alteration

in original).

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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). Specifically, “[flactual allegations must be enough

to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The question is

not whether the claimant “will ultimately prevail . . . but whether his complaint [is] sufficient to

cross the federal court’s threshold.” Skinner v. Switzer, 562 U.S. 521, 530 (2011) (citation and

quotations omitted).

In evaluating the sufficiency of a complaint, the Court adheres to certain well-recognized

parameters. For one, the Court “must consider only those facts alleged in the complaint and accept

all of the allegations as true.” ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994); see also

Twombly, 550 U.S. at 555 (stating that courts must “assumf[e] that all the allegations in the

complaint are true (even if doubtful in fact)”). Also, the Court must accept as true all reasonable

inferences emanating from the allegations and view those facts and inferences in the light most

favorable to the nonmoving party. See Rocks v. City of Phila., 868 F.2d 644, 645 (3d Cir. 1989);

see also Revell vy. Port Auth. of N. Y. & N.J., 598 F.3d 128, 134 (3d Cir. 2010).

That admonition does not demand that the Court ignore or discount reality. The Court

“need not accept as true unsupported conclusions and unwarranted inferences.” Doug Grant, Inc.

v. Greate Bay Casino Corp., 232 F.3d 173, 183-84 (3d Cir. 2000) (citations and internal quotation

marks omitted). ‘“[T]he tenet that a court must accept as true all of the allegations contained in a

complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.” Igbal, 556 U.S. at 678; see also

Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997) (explaining that a court need

not accept a plaintiffs “bald assertions” or “legal conclusions’) (citations omitted). If a claim “is

11

vulnerable to 12(b)(6) dismissal, a district court must permit a curative amendment, unless an

amendment would be inequitable or futile.” Phillips v. Cty. of Allegheny, 515 F.3d 224, 236 (3d

Cir. 2008).

Il. Qualified Immunity

The doctrine of qualified immunity has long “protect[ed] government officials ‘from

liability for civil damages insofar as their conduct does not violate clearly established statutory or

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)). Because qualified

immunity results in “immunity from suit rather than a mere defense to liability,” Pearson, 555

U.S. at 231, qualified immunity inquiries “must be resolved at the earliest possible stage of the

litigation[,|” George v. Rehiel, 738 F.3d 562, 571 (3d Cir. 2013) (quoting Miller v. Clinton Cty.,

544 F.3d 542, 547 (3d Cir. 2008)).

“At the pleading stage, ‘qualified immunity will be upheld on a 12(b)(6) motion only when

the immunity is established on the face of the complaint.’” Martin-McFarlane yv. City of Phila.,

299 F. Supp. 3d 658, 668 (E.D. Pa. 2017) (quoting Thomas v. Indep. Twp., 463 F.3d 285, 291 (3d

Cir. 2006)). “The burden of establishing qualified immunity falls to the official claiming it as a

defense.” Burns v. Pa. Dep’t of Corr., 642 F.3d 163, 176 (3d Cir. 2011). ©

“In resolving questions of qualified immunity, ‘courts engage in a two-pronged inquiry:

(1) whether the plaintiff sufficiently alleged the violation of a constitutional right, and (2) whether

the right was ‘clearly established’ at the time of ihe official’s conduct.’” Bland v. City of Newark,

900 F.3d 77, 83 (3d Cir. 2018) (quoting L.R. 4 Sch. Dist. of Phila., 836 F.3d 235, 241 (3d Cir.

2016)). Courts may “exercise their sound discretion in deciding which of the two prongs of the

qualified immunity analysis” to tackle first. Pearson, 555 U.S. at 236.

12

“To be clearly established, a right must be sufficiently clear that every reasonable official

would have understood that what he is doing violates that right.” Taylor v. Barkes, 135 S. Ct.

2042, 2044 (2015) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). Recently, “the

Supreme Court reiterated the ‘longstanding principle that clearly established law should not be

defined at a high level of generality,’ but must instead ‘be particularized to the facts of the case.”

Bland, 900 F.3d at 83 (quoting White v. Pauly, 137 S. Ct. 548,552 (2017) (per curiam)). Although

there need not be a “‘case directly on point’” to define a clearly established right, “‘existing

precedent must have placed the statutory or constitutional question beyond debate.’” Mullenix v.

Luna, 136 S. Ct. 305, 308 (2015) (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).

Therefore, “qualified immunity protects ‘all but the plainly incompetent or those who knowingly

violate the law.’” Mullenix, 136 S. Ct. at 308 (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

DISCUSSION

The moving defendants set forth a host of arguments in support of their request for the

Court to dismiss numerous claims against them. The Court addresses each in turn.

1. Supervisory Liability Claim

Mr. Thorpe contends that Sgt. Hayes, Sgt. McClane, and Lt. Riehl are liable for their

personal involvement in supervising their subordinates” alleged misconduct. A § 1983 claim based

on supervisory liability cannot be based merely on respondeat superior or vicarious liability. City

of Canton, Ohio v. Harris, 489 U.S. 378, 385 (1989). “It is uncontested that a government official

is liable only for his or her own conduct and accordingly must have had some sort of personal

involvement in the alleged unconstitutional conduct.” Argueta v. U.S. Immigration and Customs

Enforcement, 643 F.3d 60, 71 (3d Cir. 2011). The Third Circuit Court of Appeals has recognized

that “there are two theories of supervisory liability, one under which supervisors can be liable if

13

they established and maintained a policy, practice or custom which directly caused the

constitutional harm, and another under which they can be liable if they participated in violating

plaintiff's rights, directed others to violate them, or, as the persons in charge, had knowledge of

and acquiesced in their subordinates’ violations.’” Parkell v. Danberg, 833 F.3d 313, 330 (3d Cir.

2016) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 129 n.5 (3d Cir. 2010)). A plaintiff

must plead allegations of a supervisor’s personal involvement with particularity.” Round vy. City

of Phila., No. 19-3513, 2020 WL 2098089, at *11 (E.D. Pa. May 1, 2020) (citations omitted).

To allege that a supervisory defendant directed others to violate constitutional rights, a

plaintiff “must allege a causal connection between the supervisor’s direction and that violation, or,

in other words, proximate causation.” Santiago, 629 F.2d at 128. ‘“Proximate causation is

established where the supervisor gave directions that the supervisor knew or should reasonably

have known would cause others to deprive the plaintiff of [his] constitutional rights.” Jd. (internal

quotation marks and citations omitted).

The supervisory defendants—Segt. Hayes, Sgt. McClane, and Lt. Riehl—argue that the

Court should dismiss Mr. Thorpe’s supervisory liability claim because (1) it is not cognizable

under § 1983, (2) Mr. Thorpe failed to plead a plausible supervisory liability claim, and (3) they

are entitled to qualified immunity. All three arguments fail.

A. Whether Mr. Thorpe’s § 1983 Supervisory Liability Claim is Cognizable

First, the supervisory defendants argue that Ashcroft v. Iqbal, 556 U.S. 662 (2009),

rendered supervisory liability claims uncognizable under § 1983. However, in nearly the same

breadth, they also concede “that certain Third Circuit decisions have allowed supervisory liability

claims to be made post-/qgbal, and that this Court is bound by Third Circuit decisions.” Def.’s

Mem. in Supp. of Mot. to Dismiss at 5 (Doc. No. 34).

14 .

As other courts in this circuit have noted, “Jgbal did not abolish supervisory liability.”

Burgos v. City of Phila., 270 F. Supp. 3d 788, 795 n. 20 (E.D. Pa. 2017); see also Thomas v. Adams,

55 F. Supp. 3d 552, 568 (D.N.J. 2014) (“/gbal did not change any aspect of substantive law. Nor

did Iqbal create a liability exception for the defendants fortunate to hold supervisory positions.”).

Even so, the Court would be remiss if it did not note that the Third Circuit Court of Appeals has

acknowledged “that there exists ‘uncertainty as to the viability and scope of supervisory liability’

after the Supreme Court’s decision in [/qgbal], arguably narrowed or abrogated the ability to find a

supervisor liable for conduct of which he was merely aware but did not direct.” Williams v. Papi,

714 F. App’x 128, 133 (3d Cir. 2017) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130

n.8 (3d Cir. 2010)). However, the Third Circuit Court of Appeals has yet to squarely address the

extent of Jgbal’s impact of supervisory liability theories based on knowledge of and acquiesce in

a subordinate’s violations. Williams, 714 F. App’x at 133; see also Jennings-Fowler v. City of

Scranton, 680 F. App’x 112, 118 n.24 (3d Cir. 2017) (“To date, [the Third Circuit Court of

Appeals] ha[s] refrained from answering the question of whether /gbal eliminated—or at least

narrowed the scope of—supervisory liability.”). Rather, it continues to articulate the standard set

forth above: that a government official can only be liable for his or her own conduct, that they

accordingly must have some sort of personal involvement in the alleged violation, and that such

involvement may be established by alleging that the supervisor “‘participated in violating the

plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and

acquiesced in his subordinates’ violations.” Williams, 714 F. App’x at 133 (quoting A.M. ex rel.

J.M.K. v. Luzerne Cty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004)). As recently as 2017,

the Third Circuit Court of Appeals has continued to refrain from deciding whether the knowledge

and acquiescence theory of supervisory liability remains after the Supreme Court’s determination

15

in Igbal.®

Accordingly, district courts have continued to recognize § 1983 supervisory liability claims

based on a knowledge and acquiescence theory even in the wake of Iqbal. See, e.g., Goodwin v.

Pennridge Sch. Dist., 309 F. Supp. 3d 367, 380 (E.D. Pa. 2018) (finding that plaintiff sufficiently

pleaded claims of supervisory liability based on knowledge and acquiescence of supervisory

defendants): see also Plouffe v. Cevallos, No. 10-1502, 2012 WL 1994785, at *4 n.4 (E.D.

June 1, 2012) (“Because the Third Circuit has not held that a plaintiff may no longer establish §

1983 liability based on a supervisor’s knowledge of and acquiescence in a subordinate’s

constitutional violation, this Court will continue to apply the pre-Jgbal supervisory liability

analysis.”’); Robles v. Casey, No. 10-2663, 2011 WL 2292286, at *2 n.2 (M.D. Pa. June 8, 2011)

(noting that because the Third Circuit Court of Appeals “has declined to hold that a plaintiff may

no longer establish liability under § 1983 based on a supervisor’s knowledge of and acquiescence

in a violation[,]” it “follow[ed] the other courts in [its] district that have continued to apply the

Third Circuit’s traditional supervisory liability analysis.”).

Moreover, the Third Circuit Court of Appeals post-/qbal has affirmed at least one district

court’s invocation of supervisory liability based on the supervisor’s knowledge of and

acquiescence in a subordinate’s violations when considering conduct which occurred prior to the

Supreme Court’s issuance of Jgbal in May 2009, In Zion v, Nassan, 556 F. App’x 103 (3d Cir.

2014), the plaintiff pleaded that, despite being aware of a pattern of violent behavior by a

subordinate, the supervisors did nothing to remedy the situation. /d at 109. In affirming the

6 See, e.g., Williams, 714 F. App’x at 133 (“As in our prior cases, we need not decide whether the

knowledge and acquiescence theory survives Jgbal, because for those officers over whom we have

jurisdiction, Mrs. Williams’ claims fail even under that theory.”); Jennings-Fowler, 680 F. App’x at 118

n.24 (refraining from determining whether this theory of § 1983 liability survives in the wake of Iqbal

because the plaintiffs claims failed for other reasons).

16

district court’s denial of the police officer’s motion for judgment on the pleadings and assertion

that they were entitled to qualified immunity, the Third Circuit Court of Appeals determined that

“Ta]t the time of the shooting [which occurred in March 2009], binding precedent held that a

supervisor may be liable for his subordinate’s constitutional violations if the supervisor had

knowledge of and acquiesced in the violations. Because the legal norms allegedly violated by the

supervisory defendants were clearly established at the time of the challenged actions, we will

_ affirm the District Court’s judgment as to the supervisory defendants[.]” Jd Here, as in Zion, it

was clearly established at the time that the Span shooting investigation began in 2008 that a

supervisor could be liable for knowingly acquiescing in a subordinate’s violations of an

individual’s constitutional rights.

Therefore, the Court rejects the City’s argument that Mr. Thorpe’s § 1983 supervisory

liability claim is no longer cognizable in light of Iqbal.

B. Whether Mr. Thorpe Pleaded a Plausible Supervisory Liability Claim

The supervisory defendants alternatively argue that Mr. Thorpe failed to allege sufficient

facts to plausibly set forth their supervisory liability. In doing so, the supervisory defendants point

to Mr. Thorpe’s allegations that they “knew or should have known” of Det. Pitts’ coercive conduct

and that they “were aware of the other Defendants’ investigatory misconduct and either

affirmatively condoned it or took no action to prevent it.” Am. Compl. at J] 56, 109 (Doc. No.

33).

Mr. Thorpe counters that he also alleged various particular factual allegations which further

demonstrate their supervisory liability. For instance, Mr. Thorpe alleges that detectives under the

. supervisory defendants’ watch (1) fabricated evidence to obtain a search warrant of the third-floor

rear apartment; (2) coerced Ms. Stones and Mr. Chamberlain to sign fabricated statements falsely

17

inculpating Mr. Thorpe; (3) suggested to Mr. Robinson and Ms. Gault to identify Mr. Thorpe in a

photo identification procedure; (4) fed multiple witnesses details which inculpated Mr. Thorpe;

and (5) buried such misconduct and other exculpatory evidence, including evidence of photo

identification procedures completed by Mounsiers Bytheway and McKeen. Mr. Thorpe further

alleges that the detectives failed to take basic investigative steps which could have led to the true

perpetrator, such as trying to recover fingerprints from the crime scene and searching for the

shooter’s bicycle.

According to the amended complaint, Set. McClane and Lt. Riehl also directed Det. Pitts

to interview Ms. Stones and Mr. Chamberlain, even though they knew or should have known about

Det. Pitts’ pattern of fabricating and coercing witness statements. Mr. Thorpe also pleads that Sgt.

Hayes actively participated in the homicide investigation by developing the theory that the

shooting involved a neighborhood drug dispute and executing the search warrant of the third-floor

rear apartment.

In Wright v. City of Philadelphia, 229 F. Supp. 3d 322 (E.D. Pa. 2017), this Court

determined that allegations that a lead investigator “was responsible for overseeing the

investigation and gathering the evidence obtained by other officers” were sufficient to draw the

reasonable inference that he had actual knowledge of, or acquiesced in, the misconduct of the

allegations detailed throughout the amended complaint. Jd. at 338. The Court finds the allegations

set forth here to be at least as plausible—if not more—as those advanced in Wright for purposes

of pleading the supervisory defendants’ knowledge of and acquiescence in a subordinate’s

conduct. Accordingly, the Court finds that the amended complaint contains sufficient factual

allegations to “allow[] the court to draw the reasonable inference that the defendants are] liable

for the misconduct alleged.” Fowler v. UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citing

18

Iqbal, 556 U.S. at 678).

C. Assertion of Qualified Immunity _

The supervisory defendants next argue that even if Mr. Thorpe pleaded a plausible

supervisory liability claim, they are entitled to qualified immunity for two reasons. First, the

supervisory defendants contend that Jgbal made it unclear to officers whether they could face a

supervisory liability claim. Because /gbal has yet to change the legal landscape concerning

supervisory liability in this circuit, the Court rejects this argument. See supra Discussion § I.A.’

Second, the supervisory defendants argue that no officer would clearly know that they violated a

constitutional right by engaging in their alleged actions. In doing so, they essentially reiterate their

arguments as to why they believe Mr. Thorpe alleged insufficient facts for the Court to plausibly

infer that they had knowledge of and acquiesced in subordinates’ various constitutional violations.

Since 2004, it has been clearly established that a supervisor may be liable if he or she had

knowledge of and acquiesced in or directed their subordinates’ unconstitutional conduct. See A.M,

372 F.3d at 586. As discussed further below, see infra Discussion § III.A, it was clear at the time

at issue that the alleged subordinates’ conduct violated various clearly established rights. The

Court thus declines to determine that no reasonable officer would have known during the

investigation and prosecution that they ought not to look the other way when faced with a

subordinates’ fabrication of evidence or the burying of such misconduct and other exculpatory

evidence.

Therefore, Mr. Thorpe’s supervisory liability claim against Lt. Riehl, Sgt McClane, and

7 Iqbal was not decided until ten months after the Span homicide investigation already commenced.

The amended complaint does not reference when Mr. Thorpe’s trial began, but it states that the jury

convicted him in December 2009, seven months after Jgbal was decided. Although the trial may have

commenced a few months after the Supreme Court decided Jgbal, some, if not most, of the alleged wrongful

conduct certainly predated Jgbal. □

19

Sgt. Hayes survives the supervisory defendants’ motion to dismiss.

Il. Failure-to-Intervene Claim

Defendants Gaines, Glenn, Cummings, Hayes, Riehl, and McClane request the Court to

dismiss the failure-to-intervene claim against them. A police officer is liable under § 1983 when

he “fails or refuses to intervene when a constitutional violation such as an unprovoked beating

takes place in his presence.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). “[A]n officer

is only liable if there is a realistic and reasonable opportunity to intervene.” Jd. at 651. Moreover,

a duty to intervene attaches only if the officer knew of and acquiesced in the unconstitutional

treatment of the plaintiff. See id (citing Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d Cir.

1995)).

The moving individual defendants aver that failure-to-intervene claims are almost

exclusively brought against state actors who fail to intervene in the face of excessive force. They

are unaware of any governing caselaw recognizing a failure-to-intervene claim in the context of

the fabrication or withholding of evidence. Accordingly, they argue that even if a failure-to-

intervene claim could exist in this context, they are entitled to qualified immunity because it was

not clear in 2008 and 2009 that a police sted would know that they had an affirmative duty to

intervene when confronted with the fabricatio | or withholding of evidence.

There is no doubt that the vast vail of failure-to-intervene claims involve a situation

in which a state actor is present during the oftentimes short-lived moment in which another state

actor wrongfully uses physical contact against an individual. This case, on the other hand, invites

the Court to consider a potential ongoing duty and opportunity to intervene, which Mr. Thorpe

contends exists up until the moment of conviction. Mr. Thorpe suggests that intervention could

come in the form of ensuring that basic investigative steps were taken, a supervisor stopping an

20

investigation, or an officer reporting the fabrication of evidence to a prosecutor.

Mr. Thorpe’s counsel conceded during oral argument that, to the best of her knowledge,

there are no cases where the Third Circuit Court of Appeals entertains the proposition that the

fabrication and withholding of evidence at issue would establish another’s duty to intervene. Even

so, she argued that any reasonable official would have been put on notice that he or she ought to

have intervened to stop conduct which is violating an individual’s constitutional rights. However,

this line of reasoning runs the risk of defining the clearly established law “at a high level of

generality,” which the Supreme Court has longed instructed courts not to do. Bland, 900 F.3d at

83 (quoting White, 137 S. Ct. at 552). Mr. Thorpe’s suggestion that such a duty to intervene exists

for the entire duration of the investigation and prosecution—rather than the fleeting moment in

time afforded an officer in the presence of unconstitutional physical action—exemplifies the

heightened generality of the proposition. The Court declines to accept the position that precedent

which made clear that an officer ought to iemvene when observing a wrongful beating likewise

equally places before the Court the question as to whether an officer must intervene when

confronted with the conduct at issue here arguably “beyond debate.” Mullenix, 136 S. Ct. at 308

(quoting Ashcroft, 563 U.S. at 741).

In Ekwunife v. City of Philadelphia, 245 F. Supp. 3d 660 (E.D. Pa. 2017), the Court rejected

a similar argument to the one Mr. Thorpe advances here. In that case, the defendants likewise

pointed out that failure-to-intervene cases are nearly exclusively brought against state actors who

fail to intervene in cases of alleged brutality, and that they were unaware of cases in this circuit

holding a prosecutor liable for not intervening to correct false information used to arrest and detain

an innocent individual. /d. at 672. There, the plaintiff retorted that if a court can find a state actor

liable for failing to intervene in a police beating, it may also find a state actor liable for failing to

21

intervene to stop the fabrication of evidence used to charge and prosecute an innocent man. □□□ at

672-73. The Court ultimately declined to rely upon out-of-circuit case law in which a failure to

intervene claim was recognized in the context of unconstitutional interrogations. Jd. at 672.8

Because it was not sufficiently clear that reasonable officers would have understood that

failing to intervene when confronted with another’s fabrication and withholding of evidence

violated Mr. Thorpe’s constitutional rights, the Court grants the moving individual defendants

qualified immunity with respect to the failure-to-intervene claim.

Ill. Fabrication-of-Evidence, Brady, Fourth Amendment Malicious Prosecution, and

Civil Rights Conspiracy Claims

Defendants Gaines, Glenn, Cumming, Hayes, Riehl, and McClane assert that Mr. Thorpe

failed to bring plausible fabrication-of-evidence, Brady, Fourth Amendment malicious

prosecution, and civil rights conspiracy claims against them, or, alternatively, that they are entitled

to qualified immunity with respect to these claims.

A. Legal Standards for Claims

1. Fabrication-of-Evidence

Where a criminal defendant “has been convicted at a trial at which the prosecution has used

fabricated evidence, the defendant has a stand-alone claim under § 1983 based on the Fourteenth

Amendment if there is a reasonable likelihood that, without the use of that evidence, the defendant

8 Mr. Thorpe does cite one case in which that court denied the defendant prosecutors’ motion to

dismiss a failure-to-intervene claim predicated on the prosecutors’ acquiescence of others’ fabrication of

evidence through hypnosis and coerced confessions. Fogle v. Sokol, No. 17-194, 2018 WL 6831137, at

*12 (W.D. Pa. Dec. 28, 2018) (“If a law enforcement officer’s duty to intervene extends to an obvious use

of excessive force in violation of the Fourth Amendment, it surely must follow a fortiori that it extends to

the fabrication of evidence in violation of the Fourteenth Amendment’s Due Process Clause.”). However,

that court did not assess whether clearly established law precluded an assertion of qualified immunity as to

that claim. Instead, the court was tasked with determining whether dismissal was appropriate based on

absolute immunity. Such an analysis does not engage in the two-pronged inquiry used for assessing

assertions of qualified immunity.

22

would not have been convicted.” Halsey v. Pfeiffer, 750 F.3d 273, 294 (3d Cir. 2014). After all,

“no sensible concept of ordered liberty is consistent with law enforcement cooking up its own

evidence.” Jd. at 292-93. To demonstrate this reasonable likelihood, “plaintiffs bringing

fabrication claims must draw a meaningful connection between their conviction and the use of

fabricated evidence against them.” /d. at 294n.19. The Third Circuit Court of Appeals has also

acknowledged that “if fabricated evidence is uSed as a basis for a criminal charge that would not

have been filed without its use the defendant certainly has suffered an injury.” Jd. In Halsey, the

Third Circuit Court of Appeals noted that this stand-alone fabrication-of-evidence claim was

clearly established prior to 1985. Jd. at 295-96.

2. Withholding Evidence (Brady)

“A Brady violation occurs if: (1) the evidence at issue is favorable to the accused, because

either exculpatory or impeaching; (2) the prosecution withheld it; and (3) the defendant was

prejudiced because the evidence was ‘material.’” Breakiron v. Horn, 642 F.3d 126, 133 (3d Cir.

2011). Brady suppression occurs where the government fails to turn over evidence that is “known

only to police investigators and not to the prosecutor.” Youngblood v. West Virginia, 547 U.S.

867, 870 (2006) (per curiam) (quoting Kyles v, Whitley, 514 U.S. 419, 438 (1995)). Officers must

“affirmatively conceal material evidence from the prosecutor” to be liable under Brady. See

Gibson v. Superintendent of N.J. Dep’t of Law & Pub. Safety, 411 F.3d 427, 443 (3d Cir.

2005), overruled on other grounds by Dique v. N.J. State Police, 603 F.3d 181, 183 (3d Cir. 2010).

Evidence is considered to be Brady material “if it would tend to exculpate [the accused] to

reduce the penalty ....” Smith v. Holtz, 210 F.3d 186, 195 (3d Cir. 2000) (citation omitted).

Although “the Constitution is not violated every time the government fails or chooses not to

disclose evidence that might prove helpful to the defense[,]” the failure to disclose evidence

23

constitutes a due process violation if the failure to disclose “undermines confidence in the outcome

of the trial.” Jd. at 196. A police officer’s Brady obligations have been clearly established since

1995. See Thomas v. City of Phila., 290 F. Supp. 3d 371, 384 (E.D. Pa. 2018).

3. Fourth Amendment Malicious Prosecution

To plead a malicious prosecution claim under the Fourth Amendment, “a plaintiff must

allege that (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in

the plaintiff's favor; (3) the defendant initiated the proceeding 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 concept of seizure as a consequence of

a legal proceeding.” Young v. City of Chester, PA, 764 F. App’x 262, 265 (3d Cir. 2019) (citing

Zimmerman v. Corbett, 873 F.3d 414, 418 (3d Cir. 2017)).

Police officers (as opposed to prosecutors) may be liable for malicious prosecution if they

“conceal or misrepresent material facts” to the prosecutor. Halsey, 750 F.3d at

297 (quoting Pierce v. Gilchrist, 359 F.3d 1279, 1292 (10th Cir. 2004)). In particular, an officer

is liable if he “fails to disclose exculpatory evidence to prosecutors, makes false or misleading

reports to the prosecutor, omits material information from the reports, or otherwise interferes with

the prosecutor’s ability to exercise independent judgment in deciding whether to

prosecute.” Finnemen v. SEPTA, 267 F. Supp. 3d 639, 644 (E.D. Pa. 2017) (cleaned up). As early

as 1998, the Third Circuit Court of Appeals noted that “a § 1983 malicious prosecution claim

might be maintained against one who furnished false information to, or concealed material

information from, prosecuting authorities.” Gallo v. City of Phila., 161 F.3d 217, 220 n.2 (3d Cir.

1998) (citation and quotation marks omitted).

24

4. Civil Rights Conspiracy

A civil rights conspiracy claim requires “(1) [t]he existence of a conspiracy; (2) [a]n

agreement or meeting of the minds to violate constitutional or civil rights; and (3) [a] deprivation

of those rights in furtherance of the conspiracy.” Thomas, 290 F. Supp. 3d at 386-87 (citing

Rosembert v. Borough of E. Lansdowne, 14 F. Supp. 3d 631, 647 (E.D. Pa. 2014)). Where

substantive § 1983 claims are permitted to proceed, the Third Circuit Court of Appeals stated in

2005 that “it follows that the 42 U.S.C. § 1983 conspiracy claim . . . may also proceed[.]” Gibson,

411 F.3d at 446; see also Thomas, 290 F. Supp. 3d at 387 (permitting a civil rights conspiracy

claim to survive a motion to dismiss where the plaintiff alleged facts to plausibly suggest that an

officer contributed to a false story about a murder).

B. Claims Against Supervisory Defendants

The supervisory defendants—Lt. Riehl, Sgt. Hayes, and Sgt. McClane—argue that Mr.

Thorpe failed to allege that they affirmatively directed Dets. Pitts or Scally to engage in unlawful

actions or that they had knowledge of and acquiesced in such improper conduct. As noted, the

Court finds that Mr. Thorpe has sufficiently pleaded plausible allegations demonstrating their

engagement in, at the very least, the unlawful bonduct of Dets. Pitts or Scally.? Because clearly

established law made it clear at the time at ol that the alleged fabrication and withholding of

evidence would have violated Mr. Thorpe’s constitutional rights at issue, the Court declines their

assertion of qualified immunity with respect to the fabrication-of-evidence, Brady, and Fourth

Amendment malicious prosecution. Because these claims survive, “it follows that the 42 U.S.C.

§ 1983 conspiracy claim . . . may also proceed[.]” Gibson, 411 F.3d at 446.

9 Although the alleged unlawful conduct of all non-supervisory defendants is at issue, the supervisory

defendants focus on their supervision of Dets. Pitts and Scally.

25

C. Claims Against Det. Gaines

According to the amended complaint, Det. Gaines was involved in eecuine the search

warrant and recovering items from the third-floor rear apartment. Det. Gaines also joined Dets.

Pitts and Scally in interviewing Mr. Bytheway, where they either intentionally failed to report that

Mr. Bytheway did not identify Mr. Thorpe in a photo array or that they never presented the photo

array to him.

It is not clear to the Court which factual allegations Mr. Thorpe contends support his

fabrication-of-evidence claim against Det. Gaines. During oral argument, Mr. Thorpe’s counsel

conceded that the allegations concerning Det. Gaines’ alleged fabrication of evidence were

strained, but suggested that perhaps discovery could reveal more information to substantiate such

aclaim. At the motion to dismiss stage, a claim should proceed so long as a plaintiff “allege[d]

sufficient facts to raise a reasonable expectation that discovery will uncover proof of [his or] her

claims.” Connelly v. Lane Const. Corp., 809 F.3d 780, 789 (3d Cir. 2016). However, “discovery

is not intended as a fishing expedition permitting the speculative pleading of a case first and then

pursuing discovery to support it; the plaintiff must have some basis in fact for the action.” Zuk v.

Eastern Pa. Psychiatric Inst. of Med. College of Pa., 103 F.3d 294, 299 (3d Cir. 1996). Without

more, the Court will not conclude that Mr. Thorpe pleaded a plausible fabrication-of-evidence

claim as to Det. Gaines.

Mr. Thorpe’s Brady allegations as to Det. Gaines, however, fare better. Mr. Thorpe pleads

that Det. Gaines failed to report that Mr. Bytheway did not identify him in a photo array. Det.

Gaines argues that these allegations fail to support a plausible Brady claim because Mr. Thorpe

only pleaded that Det. Gaines showed Mr. Bytheway a photo array and that he failed to identify

Mr. Thorpe, without explicitly pleading that Mr. Thorpe’s photo was included in the photo array.

26

Taking all inferences in Mr. Thorpe’s favor, as it must at this stage, the Court can infer that Mr.

Thorpe’s photo could have been included in the photo array.

Det. Gaines also argues that the Brady claim against her is not plausible because Mr.

Bytheway was not asked to make an identification at trial, and thus, the withheld material was

“revealed at trial.” Defs.’ Mem. in Supp. of Mot. to Dismiss at 10 (Doc. No. 34). This argument

misses the mark. Mr. Thorpe contends that the withheld material information at issue is the

asserted fact that the detectives showed Mr. Bytheway a photo array and that he failed to identify

Mr. Thorpe. Such information was not revealed at trial. Therefore, Mr. Thorpe pleaded a plausible

Brady claim with respect to Det. Gaines. Because it was clearly established that a police officer

ought not affirmatively conceal material evidence from a prosecutor in 2008, the Court rejects Det.

Gaines’ invocation of qualified immunity regarding this claim at this time.

Mr. Thorpe’s allegation that Det. Gaines failed to report that Mr. Bytheway did not identify

Mr. Thorpe in a photo array also supports a plausible Fourth Amendment malicious prosecution

claim. Given that it was clearly established by 2008 that concealing material information from a

prosecutor violates an individual’s constitutional rights, the Court will refrain from approving Det.

Gaines’ assertion of qualified immunity with respect to this claim. Because the Brady and Fourth

Amendment malicious prosecution claims survive the motions to dismiss, “it follows that the 42

U.S.C. § 1983 conspiracy claim .. . may also proceed[.]” Gibson, 411 F.3d at 446.

D. Claims Against Det. Glenn □

Det. Glenn was one of the detectives who executed the search warrant and recovered

various items from the apartment. More importantly, Mr. Thorpe alleges that Det. Glenn,

alongside Dets. Pitts and Cummings, misrepresented that neighbors communicated that Mr. Span’s

shooter lived in the third-floor rear apartment, even though no evidence actually connected the

27

shooter to that apartment. Based on this misrepresentation, the police were able to secure a search

warrant for the apartment, where they found a photograph of Mr. Thorpe.'® According to Mr.

Thorpe, this misrepresentation also led the investigators to Ms. Stones and Mr. Chamberlain. Mr.

Thorpe contends that the misrepresentation influenced the initiation of the prosecution and

presentation of evidence at trial because it corroborated the connection between Mr. Thorpe and

the crime as well as Mr. Robinson’s identification of Mr. Thorpe as the perpetrator.

Det. Glenn contends that the misrepresentation that the third-floor rear apartment was

associated with Mr. Span’s shooter lacks a meaningful connection to Mr. Thorpe’s conviction, and

thus, it cannot form the basis of a plausible fabrication-of-evidence claim. Det. Glenn argues that

this alleged misrepresentation never made its way into trial and is otherwise not sufficiently linked

to the alleged coercion of witnesses to identify Mr. Thorpe as the shooter or to any statements

made in support of his supposed motive. Mr. Thorpe hotly disputes Det. Glenn’s contention that

the misrepresentation did not make its way into trial, reasoning that the fabricated connection

between the shooter and the third-floor apartment was incorporated into Mr. Chamberlain’s

statement, which he contends was a key piece of evidence leading to his conviction. At this early

stage, it is plausible that the fabrication at issue was sufficiently connected to Mr. Thorpe’s

conviction to survive this Rule 12(b)(6) challenge.'! When defined at the appropriate level of

generality, “the right at issue in the present case is . . . the right to be free from the knowing use

by a police officer of fabricated evidence in order to bring about an individual’s arrest and criminal

10 No items recovered pursuant to the search warrant were used at trial.

The Court notes that although the fabrication at issue may have started a long chain of events

eventually leading to Mr. Thorpe’s conviction and added to the alleged taint running throughout the entire

homicide unit, there exists a possibility that Mr. Thorpe’s reliance on this fabrication alone could be too

attenuated for the purposes of establishing a fabrication-of-evidence claim. Perhaps summary judgment

would be a more appropriate opportunity for the Court to gauge the sufficiency of the connection between

the fabrication and Mr. Thorpe’s conviction.

28

charge.” DeLade v. Cargan, No. 16-415, 2019 WL 1387704, at *30 (M.D. Pa. Mar. 27, 2019).

Because a stand-alone fabrication-of-evidence claim was clearly established at the time in which

the investigation and prosecution took place, the Court will deny Det. Glenn’s assertion of

qualified immunity as to the fabrication-of-evidence claim at this time.

Mr. Thorpe’s Brady claim asserted against Det. Glenn largely follows his fabrication-of-

evidence claim. Mr. Thorpe reasons that Det. Glenn withheld the fact that the identification of Mr.

Span’s shooter as living in the third-floor rear apartment was fabricated. At this time, the Court

can infer that such a withholding of information could support a plausible Brady claim. Moreover,

the Court rejects an assertion that qualified immunity bars such a claim given that officers knew

not to conceal material evidence from a prosecutor at the time in question. For the same reasons

the fabrication-of-evidence and Brady claims survive the Rule 12(b)(6) stage and Det. Glenn’s

invocation of qualified immunity, so do the Fourth Amendment malicious prosecution and civil

rights conspiracy claims.

E. Claims Against Det. Cummings

Det. Cummings, alongside Dets. Glenn and Pitts, allegedly misrepresented that neighbors

identified the third-floor rear apartment as the shooter’s residence and executed the search of the

apartment. On the day of the shooting, when interviewing Mr. Robinson, Dets. Cummings, Pitts,

and Scally either failed to ask or failed to record answers to interview questions which would have

detailed key descriptive information about the shooter. They also failed to record or destroyed

documentation concerning the photo identification procedure conducted with Mr. Robinson.

Because Mr. Thorpe alleges that Det. Cummings, alongside Det. Glenn, misrepresented

that neighbors identified the third-floor rear apartment as the shooter’s residence, the Court denies

Det. Cummings’ Rule 12(b)(6) challenge and invocation of qualified immunity as to the

29

fabrication-of-evidence claim against Det. Cumnnines for the reasons discussed above. See supra

Discussion § III.D.

Mr. Thorpe bases his Brady claim against Det. Cummings on his alleged failure to record

descriptive information provided by Mr. Robinson as well as his alleged failure to record and/or

destruction of documentation concerning the photo array presented to Mr. Robinson on the day of

the shooting. Assuming the veracity of the allegations that the detectives failed to record

descriptive information provided by Mr. Robinson, presumably because the material did not

implicate Mr. Thorpe, such conduct could support a plausible Brady claim. As for the allegations

concerning the photo array, Det. Cummings argues that Mr. Thorpe did not explicitly allege that

his photo was included in the array. As discussed above, however, such an argument fails to take

all inferences in Mr. Thorpe’s favor, as is required at this stage. See supra Discussion § III.C. .

Because it was clearly established that a police officer ought not affirmatively conceal material

evidence from a prosecutor during the time at issue, the Court rejects Det. Cumming’s invocation

of qualified immunity with respect the Brady claim at this time.

Moreover, Mr. Thorpe’s allegations concerning Det. Cummings’ role in Mr. Robinson’s

interview support a plausible Fourth Amendment malicious prosecution claim. Given that it was

clearly established at the time of the alleged unlawful conduct that concealing material information

from a prosecutor violates an individual’s constitutional rights, the Court rejects Det. Cummings’

assertion of qualified immunity with respect to the Fourth Amendment prosecution claim. Because

the fabrication-of-evidence, Brady, and Fourth Amendment malicious prosecution claims survive

the motions to dismiss, “it follows that the 42 U.S.C. § 1983 conspiracy claim .. . may also

proceed[.]” Gibson, 411 F.3d at 446.

30

IV. Fourteenth Amendment Malicious Prosecution Claims

The City and Defendants Gaines, Glenn, Cummings, Hayes, Riehl, McClane, and Scally

request that the Court dismiss Mr. Thorpe’s Fourteenth Amendment malicious prosecution claim.

Because a malicious prosecution claim under the Fourteenth Amendment’s procedural due process

clause was not clearly established at the time period at issue, the Court dismisses this claim.

A. Claim as to Defendants Gaines, Glenn, Cummings, Hayes, Riehl, McClane, and

Scally

The moving individual defendants argue that Mr. Thorpe is barred from bringing a

malicious prosecution claim under the Fourteenth Amendment; that Mr. Thorpe failed to plead □

plausible malicious prosecution claim under the Fourteenth Amendment; and that the individual

defendants are entitled to qualified immunity with respect to a Fourteenth Amendment malicious

prosecution claim. The qualified immunity “en is dispositive. The Court recently addressed

this very qualified immunity issue in Thomas City of Philadelphia, 290 F. Supp. 3d 371 (E.D.

Pa. 2018), and sees no reason why it should veer from its previous ruling.

Neither party disputes that the Supreme Court held in Albright v. Oliver, 510 U.S. 266

(1994), that there is no substantive Fourteenth Amendment due process right to be free from

malicious prosecution. Rather, at issue here is whether Mr. Thorpe has a procedural F ourteenth

Amendment due process right to be free from malicious prosecution.

Mr. Thorpe contends that the Third Circuit Court of Appeals made clear in Torres v.

McLaughlin, 163 F.3d 169 (3d Cir. 1998), that a plaintiff may base a malicious prosecution claim

on procedural due process. In Torres, the Third Circuit Court of Appeals held that it does “not

read Albright to hold that a malicious prosecution claim can only be based on a Fourth Amendment

violation. Accordingly, a § 1983 malicious prosecution claim may also include police conduct

that violates the Fourth Amendment, the procedural due process clause, or other explicit text of

. 31

the Constitution.” Jd. at 173. However, the Third Circuit Court of Appeals acknowledged in 2014

that it actually refrained from deciding in 7 corres whether a § 1983 malicious prosecution claim

could be based in procedural due process. !

Given the unsettled posture of this inquiry, this Court in Thomas determined that “[t]he

procedural due process right against malicious prosecution is not clearly established.” Thomas,

290 F. Supp. 3d at 382; see also id. (“The Supreme Court has not yet articulated such a right. And

the Third Circuit Court of Appeals stopped short of deciding the right’s ‘viability’ in 2014, let

alone in the early 1990s when Mr. Thomas interacted with the defendants.”). Therefore, the

individual defendants in Thomas were pene qualified immunity from a claim for malicious

prosecution in violation of the procedural due process clause. Jd. at 383. Other courts in this

Circuit have followed suit. See, e.g., Lewis v. City of Phila., No. 19-2847, 2020 WL 1683451, at

*8 (E.D. Pa. Apr. 6, 2020) (citing Thomas and finding that individual defendants were entitled to

qualified immunity because a procedural due process right against malicious prosecution was not

clearly established at the time of the plaintiff's prosecution); McCormack v. Livergood, 353 F.

Supp. 3d 357, 364 (M.D. Pa. 2018) (citing Thomas and granting qualified immunity to defendant

with respect to plaintiff's malicious prosecution claim under the Fourteenth Amendment

procedural due process clause); Gilyard v. Dusak, No. 16-2986, 2018 WL 2144183, at *5 (E.D.

Pa. May 8, 2018) (citing Thomas and finding that qualified immunity barred plaintiff's Fourteenth

Amendment due process claim “because in 1998 (and today) our courts had not clearly established

a citizen had a Fourteenth Amendment procedural due process right to be free from malicious

prosecution”).

2 Ina parenthetical the Third Circuit Court of Appeals noted that in Torres it “reaffirm[ed] that §

1983 malicious prosecution claims cannot be based on substantive due process but declin[ed] to decide

whether they could be grounded in procedural due process.” Halsey, 750 F.3d at 290 n.14.

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Because a Fourteenth Amendment procedural due process right against malicious

prosecution was not clearly established in 2008—and is still not clearly established for that

matter—the Court grants qualified immunity as to this claim on behalf of all moving individual

defendants.

B. Claim Against the City

Mr. Thorpe brought Count II alleging malicious prosecution in violation of the Fourth and

Fourteenth Amendments exclusively “[a]gainst all [i]Jndividual [d]efendants[,]” not the City. Am.

Compl. at p. 42 (Doc. No. 33). Accordingly, the Court deems moot the City’s request to dismiss

a Fourteenth Amendment malicious prosecution claim against it. Regardless, both parties

addressed whether Mr. Thorpe can bring a Fourteenth Amendment malicious prosecution claim

against the City in their briefing and during oral argument. For the sake of thoroughness, the Court

has considered the parties’ arguments even in the absence of such a claim. Therefore, even if Mr.

Thorpe brought a Fourteenth Amendment malicious prosecution claim against the City, such a

claim would be dismissed because the City is entitled to qualified immunity.

To hold a municipality liable under § 1983, a plaintiff must “identify a municipal policy or

custom that amounts to deliberate indifference to the rights of people with whom the police come

into contact.” Carswell v. Borough of Homesiead, 381 F.3d 235, 244 (3d Cir. 2004). The City

argues that Mr. Thorpe cannot show that the City was deliberately indifferent to its officers’

misconduct. Deliberate indifference “is a stringent standard of fault, requiring proof that a

municipal actor disregarded a known or obvious consequence of his action.” Connick v.

Thompson, 563 U.S. 51, 61 (2011) (quoting Bd. of Cty. Comm’rs of Bryan Cty. v. Brown, 520 U.S.

397, 410 (1997)). As this Court noted in mbes several courts have held that a municipality

cannot be deliberately indifferent to a right that is not clearly established. See Szabla v. City of

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Brooklyn Park, 486 F.3d 385, 393 (8th Cir. 2007) (“[A] municipal policymaker cannot exhibit

fault rising to the level of deliberate indifference to a constitutional right when that right has not

yet been clearly established.”); see also Townes v. City of New York, 176 F.3d 138, 143-44 (2d

Cir, 1999); Williamson vy. City of Virginia Beach, 786 F. Supp. 1238, 1264-65 (E.D. Va.

1992); Zwalesky v. Manistee Cty., 749 F. Supp. 815, 820 (W.D. Mich. 1990).

Because a Fourteenth Amendment malicious prosecution claim was not clearly established

during the time period at issue, the Court declines to allow such a claim to proceed.

V. Malicious Prosecution Claim Under Pennsylvania State Law

Mr. Thorpe brought a malicious prosecution claim under Pennsylvania law against all the

defendants. In his response in opposition to the first motion to dismiss, Mr. Thorpe agreed that

his state malicious prosecution claim as to the City should be dismissed. Accordingly, the Court

will not further entertain the plausibility of the state malicious prosecution claim as it pertains to

the City. Mr. Thorpe, however, maintains that his state malicious prosecution claim with respect

to the moving individual defendants should survive.

Despite moving to dismiss all claims against them, Defendants Gaines, Glenn, Cummings,

Hayes, Riehl, and McClane did not articulate an argument concerning the state malicious

prosecution claim against them until the Court ordered supplemental briefing. In their

supplemental briefing, the moving individual defendants argued that the Pennsylvania Political

Subdivision Tort Claims Act grants municipal officers acting in their official capacities immunity

from liability for state law tort claims. See Holloway v. Brechtse, 279 F. Supp. 2d 613, 616 (E.D.

Pa. 2003) (citations omitted).

However, individual police officers “are not immune from liability under § 8545 where

their conduct amounts to ‘actual malice’ or ‘willful misconduct.” Madero v. Luffey, No. 19-700,

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439 F. Supp. 3d 493, 511 (W.D. Pa. Feb. 13, 2020) (citing Sanford v. Stiles, 456 F.3d 298, 315 (3d

Cir. 2006)). “Willful misconduct has been defined by the Pennsylvania Supreme Court as conduct

whereby the actor desired to bring about the result that followed or at least was aware that it was

substantially certain to follow, so that such a desire can be implied. Otherwise stated, the term

willful misconduct is synonymous with the term intentional tort.” Jd. (quoting Sanford, 456 F.3d

at 315) (internal quotation marks omitted); accord Brown v. Muhlenberg Twp., 269 F.3d 205, 214

(3d Cir. 2001).

For the same reasons the Court finds that Mr. Thorpe has pleaded plausible claims against

Dets. Gaines, Glenn, Cummings, Sgts. Hayes and McClane, and Lt. Riehl, the Court determines

that Mr. Thorpe has plausibly pleaded the willful misconduct of the moving individual defendants.

Therefore, the Court refrains from dismissing the state malicious prosecution claim against these

defendants at this early stage.

CONCLUSION

For the foregoing reasons, the Court orants in part, denies in part, and deems moot in part

the motion to dismiss filed by Defendants cbnes, Glenn, Cummings, Hayes, Riehl, McClane,

Scally, and the City and grants in part and stoic in part the motion to dismiss filed by Det.

Cummings. Specifically, the Court dismisses (1) Mr. Thorpe’s failure-to-intervene claim as to

Defendants Gaines, Glenn, Cummings, Hayes, Riehl, and McClane; (ii) the Fourteenth

Amendment malicious prosecution claim as to Defendants Gaines, Glenn, Cummings, Hayes,

Riehl, McClane, and Scally; (iii) the state malicious prosecution claim with respect to the City;

and (iv) the fabrication-of-evidence claim as to Det. Gaines. The Court finds permitting an

additional opportunity at amendment as to these claims to be futile. See Phillips, 515 F.3d at 236.

Moreover, the Court deems moot the City’s request to dismiss a Fourteenth Amendment malicious

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prosecution claim against it because that claim was not actually asserted against the City.!> The

remainder of the claims at issue in the motions to dismiss remain. Finally, the defendants’

assertions of qualified immunity are denied without prejudice. An appropriate order follows.

BY THE COUBA: SZ

GENE PRATTER

UNITED STATES DISTRICT JUDGE

To the extent Mr. Thorpe seeks to assert such a claim, however, it would fail and be dismissed.

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