Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

LOMAX v. SMITH

October 10, 1980

Gerald LOMAX
v.
Paul SMITH et al.



The opinion of the court was delivered by: BRODERICK

MEMORANDUM

Plaintiff, Gerald Lomax, has brought this action pursuant to 42 U.S.C. ยง 1983, alleging that the defendants, Philadelphia police detectives Paul Smith and Daniel Hill, violated his constitutional rights during the course of his arrest and prosecution for the crime of rape. Specifically, he alleges that the defendants deprived him of his constitutional rights by:

 
(1) arresting him without probable cause;
 
(2) seizing evidence (clothing and a handgun) without a warrant;
 
(3) forcing him to stand in a suggestive lineup;
 
(4) failing to advise him of his constitutional rights;
 
(5) refusing to permit him to contact an attorney;
 
(6) maliciously charging him with "fictitious crimes";
 
(7) withholding exculpatory evidence at his criminal trial; and
 
(8) using false evidence at trial.

 Defendants have moved for summary judgment, supporting their motion with affidavits. They have also filed a supplemental motion for summary judgment, again supported by affidavits. Plaintiff, who is represented by volunteer law student counsel, filed a memorandum in opposition to the motion for summary judgment, and advised the Court that he would stand on this memorandum in response to the defendants' supplemental motion. Plaintiff has filed no affidavit in response to either set of defendants' affidavits. A party opposing summary judgment on the ground that there exists a genuine issue of material fact must respond to an affidavit with more than a general denial. Lockhart v. Hoenstine, 411 F.2d 455, 458-59 (3d Cir. 1969). Since plaintiff has not responded to defendants' affidavits, the Court will regard as true the facts asserted therein.

 The Court granted plaintiff's request to reserve decision on defendants' summary judgment motion, pending the outcome of the appeal of his criminal conviction. The Pennsylvania Supreme Court having affirmed plaintiff's conviction for rape, defendants' motion for summary judgment is ready for decision. On the basis of defendants' uncontradicted affidavits, and on the basis of the state court record, the Court will grant summary judgment for the defendants.

 We will first consider plaintiff's claims relating to the evidence at his criminal trial. Plaintiff alleges that the defendants, along with Assistant District Attorney David Strawbridge, *fn1" withheld evidence he claims would have been exculpatory. This alleged exculpatory evidence concerned the rape victim's statement (Complaint, P 11) and a handgun (Complaint, P 12). Plaintiff further alleges that defendants "used false evidence in the form of a handgun." (Complaint, P 19). Defendants submitted affidavits stating that they had no role in determining what evidence was to be introduced or withheld at trial; this was solely within the discretion of Assistant District Attorney Strawbridge. On the basis of these uncontested affidavits, we find that there is no factual issue as to defendants' responsibility for evidence introduced at or withheld from plaintiff's criminal trial. We will therefore grant summary judgment for defendants as to these issues.

 Defendants contend that plaintiff's other claims are barred by the doctrine of collateral estoppel, since the issues were previously decided adversely to plaintiff at a suppression hearing prior to his criminal trial. In connection with their motion for summary judgment, defendants have submitted the transcript of the suppression hearing, and the findings of fact and conclusions of law made by the Honorable Jacob Kalish in a bench opinion issued on October 15, 1973. This Court has carefully reviewed the record in the state court, as required by Kauffman v. Moss, 420 F.2d 1270 (3d Cir.), cert. denied, 400 U.S. 846, 91 S. Ct. 93, 27 L. Ed. 2d 84 (1970) and Basista v. Weir, 340 F.2d 74 (3d Cir. 1965), and we find that the plaintiff raised the identical issues at the evidentiary hearing before Judge Kalish. At that hearing, plaintiff was represented by counsel who cross-examined the defendants, Smith and Hill. This Court also ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.