Nicholas Malfitano Jun. 27, 2015, 1:24pm


PHILADELPHIA – A motion to dismiss claims against the City Of Philadelphia and two of its police officers was partially granted in federal court on June 4.

Per an order from Judge Gene E.K. Pratter, some claims levied by Terrance Gaddy, an inmate at the Frackville Correctional Facility in Frackville, against the City of Philadelphia, Officer Matthew Winscom, Officer Michael Chichearo and seven John Doe officers were dismissed. Others, related to use of excessive force, were retained per Pratter’s decree.

On Sept. 20, 2011, in Philadelphia, Gaddy, an African-American male in possession of two weapons, said he was riding a bicycle when he noticed Officers Winscom and Chichearo, both of whom are Caucasian, “staring at him, as if profiling him.” After the officers approached him, Gaddy fled on his bicycle.

The suit says Chichearo, in his police car, gave chase to Gaddy into an alleyway near the 5200 block of Saul Street. Chichearo’s car struck the rear of Gaddy’s bicycle, throwing him to the ground. Gaddy alleges that the officers “subsequently assaulted him while he was on the ground, and that he drifted in and out of consciousness during the alleged assault.”

According to Gaddy, the officers removed the bicycle from the scene of the incident and discovered that he possessed two weapons only after they had assaulted him. Gaddy suffered a contusion within his right frontal lobe, a slight sub retinal hemorrhage, and, allegedly, memory loss, among other injuries. Gaddy claimed that the memory loss affected his recollection of the Sept. 20, 2011 incident.

Gaddy was arrested on the day of the incident and was charged with numerous crimes. At a preliminary hearing on Nov. 17, 2011, Chichearo testified the officers approached Gaddy because “they saw a bulge in his waistband, but that Mr. Gaddy fled on foot.” He further testified that Gaddy pointed a gun at Chichearo’s police car during the pursuit, at which time Chichearo used his police car to strike Gaddy.

Per Chichearo’s testimony, only he, Officer Winscom, and Gaddy were in the alley at the time of the events in question, and the officers found two firearms on or near Gaddy while searching him as he lay on the ground.

Gaddy claims that he only first learned of the actual cause of his injuries in early 2013, when he received a letter from Zorangelie Hernandez, who claimed to be a witness to Gaddy’s arrest and beating. Gaddy later obtained sworn statements from Ms. Hernandez, as well as from Yashira Hernandez and Emanuel Hernandez, two other witnesses who claimed to have seen the events of Sept. 20, 2011. Those statements later became included in Gaddy’s amended complaint.

Gaddy’s initial June 2014 complaint was amended in February. The defendants also filed their motion to dismiss the plaintiff's claims in February.

Pratter weighed in on the matter, examining the contentions of each side.

“Defendants’ motion to dismiss argues that Mr. Gaddy’s claims are barred by the statute of limitations. Mr. Gaddy’s state law claims are governed by a two-year statute of limitations governing torts such as assault and battery. The incident occurred on Sept. 20, 2011, and Mr. Gaddy filed his original complaint more than two years later on June 17, 2014. Thus, based on the chronological information, the claim appears to be untimely,” Pratter said.

“Mr. Gaddy argues, however, that the statute of limitations should be tolled under Pennsylvania’s doctrine of fraudulent concealment. The doctrine of fraudulent concealment tolls the statute of limitations when “through fraud or concealment the defendant causes the plaintiff to relax his vigilance or deviate from the right of inquiry.”

Pratter said in order for Gaddy to prove applicability of the doctrine of fraudulent concealment, he must show: “(1) That the defendant actively misled the plaintiff; (2) Which prevented the plaintiff from recognizing the validity of [his] claim within the limitations period; and (3) Where the plaintiff’s ignorance is not attributable to [his] lack of reasonable due diligence in attempting to uncover the relevant facts.”

Pratter concluded that this doctrine could not apply to the portion of the incident involving being struck by the police car, though, and provided her rationale.

“Mr. Gaddy knew from Officer Chichearo’s testimony and from his medical documentation that he was hit by a car on Sept. 20, 2011. And it is clear from the transcript of the preliminary hearing that Mr. Gaddy suspected that he was riding a bicycle during his encounter with the defendants. Chichearo hit him with the police vehicle. Through the exercise of due diligence in the course of that investigation, Mr. Gaddy could have discovered that he was riding a bicycle at the time of the incident,” Pratter said.

“In other words, Mr. Gaddy’s alleged ignorance as to any claim arising from the fact that he was riding a bicycle at the time of the incident is attributable to his ‘lack of reasonable due diligence in attempting to uncover the relevant facts’ underlying his claim rather than Officer Chichearo’s allegedly misleading testimony. Consequently, the doctrine of fraudulent concealment cannot toll the statute of limitations with respect to any claim based on injuries that Mr. Gaddy allegedly sustained from being knocked off his bicycle,” Pratter added.

However, Pratter made mention of the fact that Chichearo did not mention in his testimony that force was used against Gaddy after he was already on the ground, having been struck by the police vehicle.

“Likewise, Officer Chichearo stated that Officer Winscom was the only other witness to the events, but Mr. Gaddy allegedly later learned of third party witnesses who tell a different story of what happened,” Pratter said.

Taking Gaddy’s allegations as true, Pratter stated it was “plausible” that Chichearo’s sworn, under-oath testimony “hid, or at least materially obscured” the facts that his constitutional rights were violated when officers beat him while he lay on the ground unconscious.

“Ordinarily, alleged misrepresentations regarding an incident involving the use of force would not serve to toll the statute of limitations because the injured party would be aware of the events that transpired. However, Mr. Gaddy alleges that he was unconscious during the incident and lost his memory of that event,” Pratter said. “These allegations are plausible in light of the factual allegations and attachments to the amended complaint regarding the treatment Mr. Gaddy received for head trauma. The Court therefore finds that the doctrine of fraudulent concealment may toll the statute of limitations with respect to Mr. Gaddy’s claims arising from the alleged use of force against him while he lay on the ground unconscious.”

Pratter offered Chichearo had “a special duty” to inform the presiding judge at the preliminary hearing about the allegedly unjustified use of force that led to the discovery of the weapons, and “may have precluded a finding that probable cause existed.”

Pratter finished her decision by partially granting the defendants’ motion.

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

Gaddy has since applied for leave to file a second amended complaint as of June 16.

The plaintiff is seeking compensatory damages, punitive damages, attorney’s fees, court costs, declaratory and further relief as the Court deems appropriate. The plaintiff also seeks a jury trial in this action.

The plaintiff is represented by Aneesh A. Mehta, Anthony S. Volpe & Max S. Morgan of Volpe & Koenig, in Philadelphia.

The defendants are represented by Aaron Shotland of the City of Philadelphia Law Department, also in Philadelphia.

U.S. District Court for the Eastern District of Pennsylvania case 2:14-cv-03435

From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com

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