PHILADELPHIA – A man who spent 33 years in prison for a murder he didn’t commit before being exonerated has won remand of his case against the City of Philadelphia and police officials who the plaintiff alleged falsified evidence and perjured themselves at trial.
Kevin Bowman first filed suit in the Philadelphia County Court of Common Pleas on Nov. 22, 2023 versus the City of Philadelphia, Det. Marlena Mosely, Det. Dennis Dusak and Lieutenant Michael Gross. All parties are of Philadelphia.
Bowman was sentenced to life in prison for the 1989 murder of Neil Wilkinson and shooting of Darryl Woods. Wilkinson was found dead at the bottom of a stairwell at the Richard Allen Homes and Woods was found alive, but had been shot numerous times on March 13, 1989.
Bowman’s complaint said the detectives falsified witness statements against him, lied at trial and also withheld evidence of an alternate suspect who had confessed.
Bowman spent 33 years in prison after being convicted, but was eventually exonerated.
On Feb. 12, the defendant removed the action to the U.S. District Court for the Eastern District of Pennsylvania.
Nearly three weeks later, on March 1, Bowman filed to remand the case to its court of origin.
“Defendants’ notice of removal did not include a consent to removal by defendant Mosley. Defendant Mosely has not independently filed a consent to removal. Defendants have not amended their notice of removal to include a consent to removal by defendant Mosely. None of the defendants have filed answers or responsive pleadings to the complaint. Removal to federal court is governed by 28 U.S.C. Section 1441, Removal of Civil Actions, which sets forth the actions that may be removed. The notice of removal filed by defendants City of Philadelphia, Dusak and Gross, relies on 28 U.S.C. Section 1441,” the remand motion stated.
“28 U.S.C. Section 1446(b), which sets out the general procedural requirements for removal, requires the following of a notice of removal filed pursuant to 28 U.S.C. Section 1441: ‘All defendants who have been properly joined and served must join in or consent to the removal of the action.’ This ‘rule of unanimity’ is ‘long and well-established.’ The Third Circuit Court of Appeals has upheld remand to state court based upon a defendant’s failure to obtain unanimous consent of all properly-served defendants, as the Court has found that such failure is a fatal procedural defect. The law requires that all co-defendants join in the notice of removal or give their consent to removal within 30 days after receiving service of plaintiff’s complaint. In cases, like this one, where notice of removal was filed by a later served defendant, an earlier-served defendant (here, defendant Mosley) must join in or consent to removal within 30 days after the later-served defendant was properly served.”
The motion added, “Defendant City of Philadelphia was the last defendant served, and plaintiff made service on Jan. 30, 2024, so for removal to be complete and free of defect, consent from defendant Mosley needed to be filed on or before Feb. 29, 2024 – the 30th day following service on removing defendant City of Philadelphia and the failure to obtain defendant Mosley’s consent makes defendants’ removal of this action defective on its face.”
“Defendant Mosley was served 19 days prior to removing defendants’ filing of their notice of removal, and she did not consent to removal. More than 30 days have passed since defendant Mosley was served with the complaint and 30 days have now passed since service on the last served defendant City of Philadelphia,” the motion continued.
“An affidavit of service for Mosley, which shows that she was served prior to the removing defendants, was filed on the docket well before the removing defendants’ 30-day deadline for curing the defective notice of removal expired. The deadline for curing the defect in the notice of removal has now expired. Accordingly, this matter must be remanded to the Philadelphia County Court of Common Pleas, as removal is procedurally defective in that the removing defendants failed to comply with the rule of unanimity.”
The very same day, the defendants answered the plaintiff’s complaint, denied its allegations in their entirety and presented 13 affirmative defenses on their own behalf.
“Plaintiff has failed to state a claim against the answering defendants upon which relief can be granted. Answering defendants assert all of the defenses, immunities and limitations of damages available to them under the ‘Political Subdivision Tort Claims Act’ and aver that plaintiff’s remedies are limited exclusively thereto. Plaintiff’s claims are barred by the doctrine of qualified immunity because, at all times material hereto, the individual answering defendants were carrying out their duties in a proper and lawful manner, and in the exercise of good faith. Plaintiff’s claims are barred, in whole or in part, by the applicable statute of limitations. Plaintiff’s claims are barred, in whole or in part, to the extent that he has failed to take reasonable measures to mitigate any or all damages. Plaintiff's claims are barred, in whole or in part, insofar as answering defendants’ purported actions or omissions were not the proximate cause of any alleged injury, loss or damage incurred by the plaintiff. At all times material to this civil action, the individual answering defendants acted in a reasonable, proper and lawful manner,” the defenses stated.
“Plaintiff’s claims are barred, in whole or in part, by collateral estoppel/issue preclusion. The acts of prosecutors, criminal defense attorneys and judges involved in plaintiff’s criminal litigation were a superseding cause of the harm he suffered and thus preclude a finding of liability against the answering defendants. Plaintiff’s criminal charges were held over at a preliminary hearing, and the holding over of criminal charges is affirmative evidence of probable cause. Plaintiff was and is guilty of the homicide Neil Wilkinson and shooting of Darryl Woods, and answering defendants reserve the right to prove his guilt by a preponderance of the evidence at trial of this matter. At all times through the criminal trial of plaintiff, probable cause existed for his arrest. Plaintiff’s injuries and/or damages as alleged were caused by his own criminal acts or omissions, or the criminal acts or omissions of others.”
UPDATE
U.S. District Court for the Eastern District of Pennsylvania Judge Mia Roberts Perez granted the plaintiff’s motion to remand on April 25, citing improper removal of the case.
“The instant action involves four defendants – Detective Marlena Mosley, Detective Dennis Dusak, Lieutenant Michael Gross and the City of Philadelphia. Plaintiff served the last defendant on Jan.30, 2024. On Feb.12, 2024, defendants filed a notice of removal that did not include defendant Mosley’s consent. Then, on March 13, 2024, defendants filed an amended notice of removal that included defendant Mosley’s consent, without seeking leave to do so. The consent of all defendants who have been properly served is required to remove an action. Failure to gain the consent of each defendant is grounds for remand. A defendant may cure this defect by freely amending their notice of removal within 30 days of service on the last defendant, but should a defendant seek to amend a notice of removal after the 30-day window, it must seek leave to do so. Leave to amend notices of removal will be granted only in ‘extraordinary circumstances,” Perez said.
“Defendants filed their amended notice of removal outside of the 30-day time frame and have proffered no extraordinary circumstance that would warrant granting leave to amend. As a result, defendants’ failure to timely gain defendant Mosley’s consent is grounds for remand. Defendants’ contention that they were not aware that defendant Mosley was served at the time of removal is also unavailing. The record demonstrates that defendants were notified that defendant Mosley was served before the consent to removal deadline. Defendants were therefore required to obtain defendant Mosley’s consent but failed to do so in a timely manner.”
For counts of malicious prosecution in violation of the Fourth and Fourteenth Amendments to the U.S. Constitution, deprivation of liberty without due process of law and denial of a fair trial by fabricating evidence, withholding material exculpatory and impeachment evidence, civil rights conspiracy, failure to intervene, municipal liability under 42 U.S.C. Section 1983, malicious prosecution, outrageous conduct causing severe emotional distress and civil conspiracy, all under state law, the plaintiff is seeking declaratory judgment, compensatory damages, nominal damages, punitive damages, reasonable attorney’s fees and costs and such other and further relief as this Court deems just and proper.
The plaintiff is represented by Alan J. Tauber of the Law Office of Alan J. Tauber and Zak T. Goldstein of Goldstein Mehta, both in Philadelphia.
The defendants are represented by Adam Ross Zurbriggen, Andrew Pomager and Derek R. Kane of the City of Philadelphia Law Department’s Civil Rights Unit.
U.S. District Court for the Eastern District of Pennsylvania case 2:24-cv-00637
Philadelphia County Court of Common Pleas case 231102648
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com