PHILADELPHIA – A federal judge has granted motions to dismiss from several defendants, in the civil rights violation case of a man who argues he was erroneously convicted of three murders, for which he served 28 years in prison.
Theophalis “Binky” Wilson first filed suit in the U.S. District Court for the Eastern District of Pennsylvania on May 4, 2021 versus the City of Philadelphia, Philadelphia Police Department and numerous retired police officers and attorneys who assisted in his prosecution.
On Sept. 25-26, 1989, three individuals, Kevin Anderson, Gavin Anderson, and Otis Reynolds, were shot and killed within a two-mile radius of each other. During the initial investigation of these murders, officers determined that the victims were all likely associated with the Jamaican Shower Posse, a gang that was feuding over drug territory with another operation, the Junior Black Mafia.
However, no suspects were arrested for two years. Subsequently, an informant named James White was allegedly coerced into implicating plaintiff in these murders, including by providing Wilson’s name and identifying him in a series of photographs. As a result of James White’s identification and allegedly no other evidence, Wilson was convicted of the trio of murders.
According to Wilson, 23 individuals and/or entities were individually and collectively responsible for his alleged wrongful prosecution, conviction and incarceration.
Defendants former Det. Frank Margerum, former Det. Richard Harris, former Officer Kevin Hollinshead and the City of Philadelphia moved to dismiss Wilson’s amended complaint on Feb. 7, 2022, finding that few paragraphs of Wilson’s 330-paragraph filing pertained to them in any way.
“At the outset, plaintiff’s claims against defendants Frank Margerum and Kevin Hollinshead, fail for the simple reason that he fails to allege sufficient facts to establish the defendants had personal involvement in any of plaintiff’s alleged harms. Beyond that, a myriad of the claims that plaintiff seeks to bring against the officer defendants are legally insufficient. For the federal claims, the officer defendants are entitled to qualified immunity on many of them because the allegedly violated constitutional right was not clearly established at the time of the investigation and prosecution at issue in this case,” the dismissal motion stated.
“Notably, plaintiff cannot pursue his malicious prosecution procedural due process, his withholding of evidence, his inadequate investigation, or his failure to intervene claims against the officer defendants because the constitutional rights animating those claims were not clearly established at the time of the investigation and conviction, and the defendant is thus entitled to qualified immunity. For the state claims, one of the two claims brought against the officer defendants, that of intentional infliction of emotional distress, is barred by the applicable statute of limitations.”
The City felt that the claims levied against it should too be dismissed, on similar grounds.
“Turning to plaintiff’s claims against the City, many of those fail for the same reasons. In particular, the City cannot be liable under a Monell theory for alleged violations of constitutional rights that were not clearly established at the time of the identified harm. And while the City is named as an inclusive defendant in counts I-III for alleged constitutional harms, the City cannot be liable for those claims other than through the Monell claim pled in count VII,” per the motion.
“To the extent Counts I-III are brought against the City, they should be dismissed. Turning to the state law claims, under the Pennsylvania Political Subdivision Tort Claims Act, the City cannot be held liable for the alleged intentional torts. Counts VIII and IX should thus be dismissed as a matter of law.”
Defendants Jastrzembski and Santiago filed a motion to stay their involvement in the action on March 2, 2022.
“On Aug. 13, 2021, defendants Jastrzembski and Santiago were indicted and charged with perjury and false swearing in connection with murder charges brought against Anthony Wright, who was convicted of murder allegedly based on a coerced confession, and alleged false testimony by the defendants regarding evidence. Plaintiff’s complaint specifically references the Anthony Wright matter as evidence in support of his Monell claim against the City of Philadelphia. The charges against moving defendants in the Wright matter remain pending with a preliminary hearing scheduled for April 12, 2022,” the stay motion said, in part.
“Due to the overlapping nature of the claims asserted by plaintiff Wilson in this matter and the allegations at issue in the Wright matter, there is a substantial risk that the District Attorney’s office may attempt to utilize any statements moving defendants may make in this matter against them in the Wright matter. Thus, defendants Jastrzembski and Santiago will be unable to offer any testimony or statements (including answering the complaint) with respect to the pending matter without potentially violating their Fifth Amendment rights. Likewise, it is expected that both the plaintiff and the City of Philadelphia will wish to take discovery from moving defendants with respect to the Wright matter, as the Wright matter is pled as affirmative evidence in support of plaintiff’s Monell claim. Clearly, moving defendants will be unable to offer any testimony with respect to the Wright matter due to the pending criminal proceedings against them.”
Therefore, defendants Jastrzembski and Santiago respectfully request a partial stay of their involvement here, until the resolution of the criminal charges against them in the Wright matter – which they say will allow all parties to proceed with discovery as to all other defendants and matters, while simultaneously protecting the moving defendants’ Fifth Amendment rights.
On April 25, 2022, U.S. District Court for the Eastern District of Pennsylvania Judge John M. Younge granted the motion in part, and denied it in part.
“The obligations of defendants Jastrzembski and Santiago to answer the complaint, respond to interrogatories or requests for admissions and testify at deposition are stayed, pending further order of the Court. If defendants Jastrzembski and Santiago choose to file a pre-answer motion in response to the complaint under Federal Rule of Civil Procedure 12, any such motion must be filed within 30 days of the date of this order,” Younge’s judicial order stated.
“Defendants Jastrzembski and Santiago are required to respond to request for production of documents served by the other parties, subject to appropriate objections. Defendants Jastrzembski and Santiago may attend, notice and inquire at all depositions, and propound written discovery requests. Defendants Jastrzembski and Santiago do not have the right to re-depose any witnesses after the stay is lifted. Defendants Jastrzembski and Santiago must adhere to any discovery and scheduling orders entered in this matter.”
According to Younge, within 45 days of the date of this order, defendants Jastrzembski and Santiago must provide to all counsel written notification from their physicians indicating that they are not presently suffering from a terminal illness, with such letters being kept confidential.
“Beginning 60 days from the date of this order, and every 60 days thereafter, defendants Jastrzembski and Santiago shall submit a status report to the Court regarding the status of Commonwealth v. Jastrzembski and Commonwealth v. Santiago, so that the Court can consider whether the stay shall remain in place,” Younge said.
After that initial stay was lifted, both parties later requested another, separate motion to stay the case. Younge granted that stay, lasting for 90 days, on Nov. 17.
UPDATE
On March 31, Younge granted the dismissal motions of defendants City of Philadelphia, Frank Margerum, Richard Harris, Kevin Hollinshead, John Grier and the Estate defendants – and further found that the dismissal motions of defendants Former Assistant District Attorney David Desiderio and Former District Attorney Lynne Abraham were denied as moot, in light of the plaintiff’s filing of an amended complaint.
The defendants in question had filed motions to dismiss centering on the following: (1) Failure to establish various defendants’ personal involvement in the relevant murder investigations and ultimate prosecution; (2) Invoking qualified immunity as a bar to plaintiff’s constitutional claims; (3) Defendant City of Philadelphia’s Monell liability; and (4) Invoking qualified immunity and the statute of limitations as a bar to plaintiff’s state law tort claims.
“This Court agrees with this persuasive authority and concludes that the uncertainty (with respect to whether a malicious prosecution claim applies to the Fourteenth Amendment) entitles defendants to qualified immunity – with the understanding that plaintiff’s claim will still proceed under the Fourth Amendment. Thus, defendants’ motions to dismiss Count I (Malicious Prosecution) – as it pertains to and relies on the Fourteenth Amendment – are hereby granted. Taken together, Gibson controls here: Because such a right was not ‘clearly established’ in this Circuit at the time of plaintiff’s conviction on Aug.6, 1993, defendants are entitled to qualified immunity with regard to their failure to inform the prosecutor of Brady material. Thus, defendants’ motions to dismiss Counts II and III (Withholding Exculpatory Material) – as it pertains to Brady violations asserted against defendants – are hereby granted,” Younge said.
“Guided by this persuasive guidance, this Court similarly concludes that the murkiness of the law suggests that such a right to a constitutionally adequate investigation was not clearly established in the early 1990s – thereby entitling defendants to qualified immunity with respect to a right to have a constitutionally adequate investigation. Thus, defendants’ motions to dismiss Counts II – as it pertains to the constitutionally inadequate investigation claims asserted against defendants – are hereby granted. Despite this Court’s determination, it is worth reiterating that the failure to adequately investigate claim could likely still be covered under plaintiff’s malicious prosecution claim under Count I. Similar to Thorpe, this Court will not attempt to define clearly established law “at a high level of generality.” Similar to Outlaw, this Court declines plaintiff’s ‘invitation to take impermissible liberties in defining the asserted right. As neither our independent research nor [plaintiff’s] briefing identified any cases from our Court of Appeals finding that fabrication, withholding of evidence, and failing to conduct a ‘constitutionally sound investigation’ would establish a duty to intervene, we find that defendants are entitled to qualified immunity.’ Thus, defendants’ motions to dismiss Counts IV (Failure to Intervene) are hereby granted.”
Younge added that since the rights at issue with respect to Count I (Fourteenth Amendment Malicious Prosecution), Counts II and III (Brady violations), Count II (Constitutionally Inadequate Investigation), and Count IV (Failure to Intervene) were not clearly established during plaintiff’s 1992 arrest and 1993 conviction, the “City of Philadelphia could not have been deliberately indifferent and cannot be held liable under Section 1983” and thus, “plaintiff’s Monell claims are dismissed (specifically as it pertains to this Court’s analysis of those aforementioned Counts I-IV above), but not with respect to plaintiff’s other claims which have not been barred by qualified immunity.”
Younge further ruled that the City of Philadelphia is entitled to qualified immunity with respect to the plaintiff’s state law claims for malicious prosecution and intentional infliction of emotional distress – but with respect to defendant Grier, Younge allowed the latter claim to proceed as since “extraordinary circumstances – in the form of wrongful incarceration and conviction – prevented the plaintiff from asserting this claim [within the two-year statute of limitations].”
The plaintiff is represented by Alana M. McMullin, Kimberly K. Winter and Michael J. Abrams of Lathrop & Gage in Kansas City, Mo., plus Francesco P. Trapani of Kreher & Trapani, in Philadelphia.
The defendants are represented by Danielle E. Walsh of the City of Philadelphia’s Law Department, Joseph J. Santarone of Marshall Dennehey Warner Coleman & Goggin, Fortunato N. Perri Jr. of McMonagle Perri McHugh & Mischak, Nicholas A. Cummins of Bennett Bricklin & Saltzburg, Alison J. Guest of the Philadelphia District Attorney’s Office and Joseph Zaffarese of Ahmad Zaffaresre, all also in Philadelphia.
U.S. District Court for the Eastern District of Pennsylvania case 2:21-cv-02057
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com