WHITE v. CITY OF PHILADELPHIA

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHAEL WHITE : CIVIL ACTION

:

v. :

:

CITY OF PHILADELPHIA, et al. : NO. 23-4538

MEMORANDUM

Bartle, J. May 6, 2024

On December 29, 2022, the convictions and life

sentence of plaintiff Michael White for second degree murder,

robbery, and conspiracy were vacated by my colleague Judge John

R. Padova pursuant to 28 U.S.C. § 2254. White v. Vaughn, Civ.

A. No. 94-6598, 2022 WL 17993129 (E.D. Pa. Dec. 29, 2022) (Doc.

# 94). Judge Padova ordered the Commonwealth to release White

from custody or retry him within 180 days. After the

Commonwealth opted to retry White, he pleaded guilty to third

degree murder, robbery, and conspiracy, was sentenced to time

served, and was released from custody after serving over forty-

six years in prison.1

In this action, White has sued the City of

Philadelphia, the Estate of Detective Lawrence Gerrard, the

Estate of Detective Francis Miller, and the Estate of police

1. Under Pennsylvania law, the maximum sentence that may be

imposed for third degree murder is 20 years, over double times

what White in fact served. See Pa. Sent’g Guidelines

§ 303a.5(c)(3)(vii) (Pa. Comm’n on Sent’g 2024).

Lieutenant William Shelton under 42 U.S.C. § 1983.2 White claims

that the individual defendants participated in a civil rights

conspiracy and violated his constitutional rights during the

investigation and prosecution of him for murder.

Before this court is the motion of Kelly A. Rycek,

Executrix of the Estate of Lawrence Gerrard, to dismiss this

action as to him pursuant to Rule 12(b)(6) of the Federal Rules

of Civil Procedure (Doc. # 22).

I

The complaint describes the initial events in this

disturbing saga:

[I]n early January 1977, White accompanied

Eughinia Jones to Taylor’s Variety Store at

20th and Jefferson Streets in North

Philadelphia. Jones sought to collect a

debt owed to him by Georgell “Yock” Lewis,

one of the owners of the store. Jones also

owed White money, and White wanted to ensure

that Jones paid him after Lewis repaid

Jones. Unbeknownst to White, Jones was

carrying a firearm. While at the store,

Jones shot and killed Lewis after an

argument. Carmella Sprowal, a store

employee, was the only other person on the

premises at the time. Both Jones and White

were arrested later that day.

2. Former Assistant District Attorney Frank DeSimone was also

sued. On March 11, 2023, the court granted his motion to

dismiss on the ground of absolute immunity. White v. City of

Philadelphia, Civ. A. No. 23-4538, 2024 WL 1052898 (E.D. Pa.

Mar. 11, 2024) (Doc. # 18).

White v. City of Philadelphia, Civ. A. No. 23-4538, 2024 WL

1536745, at *1 (E.D. Pa. Apr. 8, 2024) (emphasis added).

Upon being arrested, White avers that he was severely

beaten by Detectives Gerrard and Miller during his

interrogation. The complaint states that although he attempted

to comply with the officers’ demands, the beating continued.

Detectives Gerrard and Miller only ceased physically assaulting

after he belatedly provided a fictitious story – that he went to

Taylor’s Variety Store that day with the intention of robbing

Lewis. Then, the Detectives, along with other unnamed

individuals forced White to sign an incriminating statement that

the detectives themselves had fabricated. According to White,

Gerrard and Miller conspired to coerce him into signing this

fabricated inculpatory statement and that both detectives

coerced and physically assaulted him or failed to intervene to

prevent the coercion and physical assault.

After this interrogation, White was transferred to the

Philadelphia County Prison where he received necessary medical

attention. During the course of trial, White’s defense counsel

requested certain exculpatory evidence from the Assistant

District Attorney responsible for prosecuting White’s case. The

court has previously described the ensuing difficulties White

faced:

Defense counsel subpoenaed White’s medical

records [for his visit immediately after

transfer to the Philadelphia County Prison],

but it was to no avail. While the records

were apparently gathered, they later went

missing and were never produced. As a

result, defense counsel was not able to make

use of White’s medical records in support of

the motion to suppress his confession. The

motion to suppress evidence was thereafter

denied.

Before trial, White’s defense counsel also

requested the Commonwealth produce the

criminal records of Sprowal, the key

prosecution witness at White’s trial, and of

Lewis, the homicide victim. Defense counsel

further sought information about drug

activity at Taylor’s Variety Store. It was

the defense’s theory of events that Lewis

was killed by Jones in a drug dispute that

went awry. Frank DeSimone, the Assistant

District Attorney prosecuting White’s case,

told White’s defense counsel that no such

evidence existed. It turned out, however,

that Lewis had at least five arrests for the

possession and sale of drugs. Two of these

arrests had occurred at the variety store.

In one of these arrests, he was found with

178 packets of heroin. Taylor’s Variety

Store was well known to the Philadelphia

Police Department as a front for heroin

sales. At the trial, Sprowal testified

falsely that neither she nor anyone else

sold drugs at the store. Years later,

Sprowal filed an affidavit that she was told

by Assistant District Attorney DeSimone not

to mention anything about drugs while

testifying at White’s trial.

Id. at *2.

White, in addition to his other claims, avers not only

that Gerrard conspired to suppress exculpatory evidence but also

that Gerrard failed to intervene to stop the suppression.

II

Gerrard’s Estate first moves to dismiss White’s

complaint to the extent that White’s allegations as to Gerrard

do not meet the plausibility pleading standard under Twombly and

Iqbal.

The complaint must plead more than “labels and

conclusions.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555

(2007). It must contain more than “a formulaic recitation of

the elements of a cause of action” or “naked assertions devoid

of further factual enhancement.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Twombly, 550 U.S. at 555) (internal

quotations and alterations omitted). Instead, it must recite

sufficient factual content to state a claim that is plausible on

its face. Id. “Determining whether a complaint states a

plausible claim for relief will . . . be a context-specific task

that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679.

To allege a Section 1983 claim against an individual,

a plaintiff must plead a defendant’s personal involvement “by

describing the defendant’s participation in or actual knowledge

of and acquiescence in the wrongful conduct.” Chavarriaga v.

N.J. Dep’t of Corrs., 806 F.3d 210, 222 (3d Cir. 2015) (citing

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). A

court may infer a defendant had contemporaneous, actual,

knowledge of wrongful conduct from the circumstances surrounding

the case. Id.

The complaint provides sufficient details to show

plausibility as to the claim that Gerrard violated White’s

constitutional rights by coercing his confession. White alleges

that Gerrard was personally involved as one of two detectives

who physically assaulted White during his interrogation.

Further, Gerrard is identified as one of two people responsible

for drafting and then coercing White to sign a fabricated

confession.

In addition, White has sufficiently pleaded Gerrard’s

personal involvement in the suppression of exculpatory evidence.

To allege a claim of deliberate deception, a plaintiff “must go

beyond the failure to disclose evidence and [allege that his or

her] imprisonment results from the knowing use of false

testimony or other fabricated evidence or from [the concealment

of] evidence to create false testimony to secure a conviction.”

Dennis v. City of Philadelphia, 19 F.4th 279, 291 (3d Cir.

2021). White avers that Gerrard acquiesced to the withholding

of exculpatory evidence because Gerrard knew upon hearing

Sprowal’s testimony that she was not telling the truth.

Additionally, in coercing White’s fabricated confession, Gerrard

suppressed what White initially told the detectives as recounted

in White’s compliant. Thus the complaint passes muster under

the plausibility test.

White has also sufficiently pleaded that these actions

constitute an actionable civil rights conspiracy under Section

1983. White alleges that Gerrard, a state actor, agreed with

Miller, another state actor, to fabricate White’s confession and

physically assault him. These are allegations of “the elements

of a conspiracy: agreement and concerted action.” Capogrosso v.

The Supreme Ct. of N.J., 588 F.3d 180, 184-85 (3d Cir. 2009).

Finally, the complaint alleges that Gerrard failed to

intervene to prevent a constitutional violation. To allege such

a claim, plaintiff must plead that the officer had a reasonable

opportunity to intervene. Smith v. Mensinger, 293 F.3d 641, 650

(3d Cir. 2002). White has done so here.

III

Gerrard’s Estate also moves to dismiss White’s claims

on the ground that, even if plausibly stated, they should be

dismissed for failure to state a claim upon which relief can be

granted under Rule 12(b)(6). At this stage, the court accepts

as true the tragic account of events recited in the complaint.

Twombly, 550 U.S. at 555. The Court may also consider “exhibits

attached to the complaint and matters of public record.”

Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998

F.2d 1192, 1196 (3d Cir. 1993). When there is a document

“integral to or explicitly relied upon in the complaint,” it may

also be considered as there is no concern of lack of notice to

the plaintiff. See Schmidt v. Skolas, 770 F.3d 241, 249 (3d

Cir. 2014) (quoting In re Burlington Coat Factory Sec. Litig.,

114 F.3d 1410, 1426 (3d Cir. 1993)).

When the claim is plausibly pleaded, the court must

consider affirmative defenses that a defendant may raise in his

or her Rule 12(b)(6) motion. Where the defense of issue

preclusion is raised, the court may take into account the prior

adjudication. M & M Stone Co. v. Pennsylvania, 388 F. App’x

156, 162 (3d Cir. 2010).

Gerrard’s Estate posits that White cannot assert

Section 1983 claims on the basis of White’s coerced confession

because collateral estoppel bars him from relitigating the

issue. In his underlying criminal prosecution, White challenged

the voluntariness of his confession. It is undisputed that

after a pre-trial hearing Judge Armand Della Porta of the Court

of Common Pleas of Philadelphia County denied his motion to

suppress.

A federal court is bound to apply the same preclusive

effect to state court decisions as would be given by a court in

the state in which the judgment was rendered. Migra v. Warren

City Sch. Dist. Bd. of Educ., 465 U.S. 75, 81 (1984). Gerrard’s

Estate, as the party asserting issue preclusion, has the burden

of proving its applicability to the case. Dici v. Pennsylvania,

91 F.3d 542, 548-49 (3d Cir. 1996). In Pennsylvania, issue

preclusion exists when:

(1) the issue decided in the prior case is

identical to the one presented in the

later action;

(2) there was a final adjudication on the

merits;

(3) the party against whom the plea is

asserted was a party or in privity with a

party in the prior case;

(4) the party . . . against whom the

doctrine is asserted had a full and fair

opportunity to litigate the issue in the

prior proceeding; and

(5) the determination in the prior

proceeding was essential to the judgment.

Metro. Edison Co. v. Pa. Pub. Util. Comm’n, 767 F.3d 335, 351

(3d Cir. 2014) (citing Off. Of Disciplinary Couns. v.

Kiesewetter, 889 A.2d 47, 50-51 (Pa. 2005)).

White maintains he did not have a full and fair

opportunity to litigate the issue in the prior proceeding. His

position parallels the points he raised in connection with

defendant City of Philadelphia’s motion to dismiss. In ruling

on that motion, the court stated:

White challenges the applicability of issue

preclusion only on the ground that he did

not have a full and fair opportunity to

litigate the issue of his coerced confession

in the Court of Common Pleas. While Judge

Della Porta denied the motion to suppress

the confession after a hearing, White’s

counsel did not have his subpoenaed medical

records for use at the hearing because the

City had failed to produce them. Witnesses

who were City employees testified at the

hearing that the records had existed and

were in the custody of the City’s Bureau of

Prisons but somehow could not later be

located.

A party has not received a full and fair

hearing on the merits where he or she has

not received the minimum due process

protections. Witkowski v. Welch, 173 F.3d

192, 205 (3d Cir. 1999). Though a federal

court is bound to apply preclusive effect to

state court decisions, this does not mean

that the court must blindly apply decisions

that are later found to have constitutional

infirmities. See Kremer v. Chem. Constr.

Corp., 456 U.S. 461, 482 (1982).

“Redetermination of issues is warranted if

there is reason to doubt the quality,

extensiveness, or fairness of procedures

followed in prior litigation.” Montana v.

United States, 440 U.S. 147, 164 n.11

(1979).

The record at this early stage of the action

is not clear as to whether White had a full

and fair opportunity to litigate his claim

that his confession was coerced. White

should at least have an opportunity to

determine whether the medical records exist.

White, 2024 WL 1536745, at *4. The motion of Gerrard’s Estate

to dismiss White’s Section 1983 claim related to the coerced

confession on the basis of collateral estoppel will be denied.

IV

Next, Gerrard’s Estate argues that White should be

judicially estopped from pursuing relief under Section 1983 for

White’s coerced confession because of his recent guilty plea for

third degree murder, robbery, and conspiracy. It maintains a

guilty plea is inconsistent with White’s contention that his

confession was coerced.

Judicial estoppel may be applied to “prevent a

litigant from asserting a position inconsistent with one that

[he or] she has previously asserted in the same or in a previous

proceeding.” Ryan Operations G.P. v. Santiam-Midw. Lumber Co.,

81 F.3d 355, 358 (3d Cir. 1996).

White counters that this argument is a “wolf in

sheep’s clothing.” His original conviction was for second

degree murder. A person commits this crime when he or she

causes a death when “engag[ing] as a principal or an accomplice

in the perpetration of a felony.” 18 Pa. Cons. Stat. § 2502(b).

For such an offense, the Pennsylvania Commission on Sentencing

recommends a sentence not less than 240 months with a statutory

maximum of life in prison without parole. See Pa. Sent’g

Guidelines § 303a.5(c)(3)(viii). His subsequent plea was to

third degree murder, which is defined as all “other kinds of

murder,” that is all kinds of murder other than murder in the

first and second degrees. 18 Pa. Cons. Stat. § 2502(c). It has

a guideline sentencing range of not less than 72 months and a

statutory maximum of 240 months. Id. at § 303a.5(c)(3)(vii).

White’s plea to third degree murder is not a bar to

seeking relief for the due process violations in the prior

proceeding. He relies on Heck v. Humphrey, which permits a

plaintiff to bring a Section 1983 claim for relief for an

unconstitutional conviction when his conviction has been

“reversed on direct appeal, expunged by executive order,

declared invalid by a state tribunal . . . , or called into

question by a . . . writ of habeas corpus.” 512 U.S. 477, 486-

87 (1994).

Courts in this circuit have determined that judicial

estoppel is inapplicable where a person has pleaded guilty to a

different crime or entered a nolo contendere plea to the same

crime. In Dennis v. City of Philadelphia, this court applied

Heck to the case of James Dennis, who brought claims under

Section 1983 related to his first degree murder conviction after

he was granted habeas relief. 379 F. Supp. 3d 420, 423 (E.D.

Pa. 2019), aff’d in part, 19 F. 4th 279 (3d Cir. 2021). After

the Commonwealth offered Dennis a plea deal which would allow

him to finish his sentence immediately, he entered a no contest

plea to third degree murder. Id. at 426. The court found that

Dennis’s subsequent plea did not bar his Section 1983 claims

alleging fabrication of evidence and deliberate deception in his

original proceeding. The court reasoned that such violations

occurred with respect to his original conviction and not in his

subsequent conviction. Id. at 430.

White, as noted above, has now pleaded guilty to third

degree murder, robbery, and conspiracy arising out of the events

at Taylor’s Variety Store in 1977. However, the 1977

convictions for which he filed this Section 1983 action were

overturned by this court by a writ of habeas corpus under 28

U.S.C. § 2254. As stated in Dennis,

[E]ven the guilty are entitled to due

process and a fair trial. In other words,

if a plaintiff brings a [Section] 1983 claim

that does not depend on his ultimate guilt

or innocence of the underlying conviction,

it does not matter even if after the first

criminal conviction is vacated, he is

convicted a second time for the same

conduct.

Dennis, 379 F. Supp. 3d at 430.

The motion of Gerrard’s Estate to dismiss White’s

claim related to White’s coerced confession will be denied.

V

Gerrard’s Estate further argues that White’s claim

that Gerrard withheld exculpatory evidence by coercing White’s

fabricated confession should be dismissed on the basis of

qualified immunity.

The doctrine of qualified immunity shields government

officials from monetary damages under Section 1983 unless their

conduct violates clearly established constitutional or statutory

rights of which a reasonable person would have known. Kelly v.

Borough of Carlisle, 622 F.3d 248, 253 (3d Cir. 2010) (citing

Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). A court may

consider, in either order, whether the facts alleged show the

violation of a constitutional or statutory right or whether the

law was clearly established at the time of the violation.

Pearson v. Callahan, 555 U.S. 223, 236 (2009).

Although criminal defendants have had a constitutional

right since 1963 to receive exculpatory evidence from

prosecutors under Brady v. Maryland, 373 U.S. 83 (1963),

Gerrard’s Estate maintains that there was no such clearly

established constitutional obligation on the part of police

officers to turn over such evidence in 1977. See Kyles v.

Whitley, 514 U.S. 419 (1995); see also Gibson v. Superintendent

of N.J. Dep’t of L. & Pub. Safety Div. of State Pol., 411 F.3d

427 (3d Cir. 2005).

White concedes that he cannot state a valid Brady

violation against Gerrard because it was not clearly established

at the time of his arrest. Instead, he characterizes his claim

as one of deliberate deception. In 1935, the Supreme Court held

that a person has a clearly established constitutional right not

to be convicted on the basis of testimony known to be false.

See Mooney v. Holohan, 294 U.S. 103, 112 (1935). In 1942, in

Pyle v. Kansas, the Supreme Court recognized that it was also a

violation of due process when such a conviction occurs due to

the deliberate suppression of favorable testimony. 317 U.S.

213, 216 (1942).

White sufficiently alleges that Gerrard engaged in

deliberate deception by coercing and fabricating White’s

confession. By forcing White to sign a fabricated confession,

Gerrard thereby suppressed what White initially told the

detectives before he was coerced into providing a false story.

White’s initial exculpatory statements, which contradicted his

later, fabricated statement, were suppressed. The right not to

be convicted on the basis of falsified evidence was clearly

established when he was arrested in 1977. Thus qualified

immunity will not shield Gerrard’s Estate as to White’s claim of

deliberate deception. See, e.g., Dennis, 19 F.4th at 289-90.

VI

Gerrard’s Estate asserts that at the time of White’s

arrest and prosecution there was no clearly established

constitutional right of a defendant to have a police officer

intervene on his or her behalf when the officer witnesses the

coercion of a confession. Rather, it contends that liability

for failure to intervene outside of the Eighth Amendment

excessive force context has not been clearly established. See,

e.g., Onyiah v. City of Philadelphia, 660 F. Supp. 3d 407, 415-

16 (E.D. Pa. 2023); Ogrod v. City of Philadelphia, 598 F. Supp.

3d 253, at 272-73 (E.D. Pa. 2022). Claims of excessive force

under the Eighth Amendment may be brought by convicted persons.

Since White had not been convicted at the time of the events in

question, his claims of assault and coercion of his confession

are properly brought as a due process violation under the

Fourteenth Amendment. See Kingsley v. Hendrickson, 576 U.S.

389, 400-01 (2015).

White cites Smith v. Mensinger for the proposition

that it is clearly established that an officer has an obligation

to intervene when another officer uses excessive force. 293

F.3d at 651. Gerrard’s Estate counters that not only is Smith

limited to the Eighth Amendment context but also that it was

decided in 2002, well after White’s interrogation.

A plaintiff may show that a right has been clearly

established by identifying either cases of controlling authority

at the time of the incident or a “robust ‘consensus of cases of

persuasive authority.’” Ashcroft v. al-Kidd, 563 U.S. 731, 742

(2011) (quoting Wilson v. Layne, 526 U.S. 603, 617 (1999)).

Under the latter approach, the court may consider factually

similar caselaw from our sister circuits. See, e.g., El v. City

of Pittsburgh, 975 F.3d 327, 341 (3d Cir. 2020).

Smith, as noted, was decided in 2002. It concerns

events which occurred in 1995 and therefore, was not controlling

authority at the time of the incident here. Nonetheless, there

was a robust consensus from multiple circuits going back to a

time before White’s arrest that a constitutional violation

occurs when officers who witness the use of excessive force fail

to intervene and stop their fellow officers who use such force

against people who are not convicted prisoners. See, e.g., Byrd

v. Brishke, 466 F.2d 6, 11 (7th Cir. 1972); Smith v. Ross, 482

F.2d 33, 36 (6th Cir. 1973) (per curiam).

In 1976, our court decided in Pitrone v. Mercadante

that plaintiff had adequately pleaded a basis for Section 1983

liability as to individual officers by averring that the

individual officers had either failed to intervene to protect

plaintiff from the officer that assaulted him or encouraged the

officer in doing so during his arrest. See 420 F. Supp. 1384,

1387 n.5 (E.D. Pa. 1976) (citing Byrd, 466 F.2d at 11), vacated

on other grounds, 572 F.2d 98 (3d Cir. 1978); see also Davidson

v. Dixon, 386 F. Supp. 482, 489 (D. Del. 1974), aff’d, 529 F.2d

511 (3d Cir. Dec. 1, 1975) (unpublished table decision).

Our Court of Appeals in Garbacik v. Janson, 111 F.

App’x 91, 94 (3d Cir. 2004) relied on Byrd, which was decided in

1972. In Garbacik, the plaintiff alleged that two police

officers had used excessive force against him during his arrest.

One of two state troopers had used excessive force in subduing

him, but he could not recall which officer it was. Id. at 92.

The court reasoned that, because “[s]everal circuit courts had

concluded prior to [the assault of Garbacik in 1995] that the

direct use of excessive force is not required to impose

liability under [Section] 1983[,]” it was clearly established

that the officers could be liable under Section 1983 for failing

to intervene when excessive force is used by another officer.

Id. at 94.

At the time of White’s arrest and interrogation, it

was clearly established that a police officer may be liable

under Section 1983 “when he ‘fails or refuses to intervene when

a constitutional violation such as an unprovoked beating takes

place in his presence.” Thorpe v. City of Philadelphia, Civ. A.

No. 19-5094, 2020 WL 5217396, at *10 (E.D. Pa. Sept. 1, 2020)

(citing Smith, 293 F.3d at 650). For that reason, qualified

immunity will not be granted to Gerrard’s Estate as to White’s

claim that Gerrard failed to intervene to stop White’s coerced

confession.

Finally, Gerrard’s Estate argues there is no clearly

established right for a police officer to intervene where

exculpatory evidence is withheld. In White’s opposition, he

concedes that an actionable claim for an officer’s failure to

intervene “has not been extended to non-violent acts.” There is

no clearly established duty of an officer to intervene to

prevent another state actor from engaging in deliberate

deception. Onyiah, 660 F. Supp. 3d at 416 (citing Thorpe, 2020

WL 5217396, at *10). Thus, on the basis of qualified immunity,

the motion of Gerrard’s Estate will be granted as to White’s

claim that Gerrard failed to intervene as to the suppression of

exculpatory evidence.