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Doswell v. City of Pittsburgh

June 16, 2009


The opinion of the court was delivered by: Ambrose, Chief District Judge



Plaintiffs Thomas Doswell ("Doswell") and his son, Raymond Thomas Lowry ("Lowry"), assert claims arising from Doswell's conviction for rape in 1986 and his nineteen-year incarceration for that crime. In 2005, DNA evidence exonerated Doswell of the crime, his conviction was vacated and the charges dismissed, and he was released from prison. He asserts civil rights claims under section 1983 for malicious prosecution, under the 14th Amendment for due process violations, under the Eighth Amendment for cruel and unusual punishment and under Pennsylvania state law for malicious prosecution. Lowry asserts a claim under the Fourteenth Amendment for deprivation of his familial and associational rights. Defendants Detective Herman Wolf ("Wolf") and the City of Pittsburgh ("City") move for summary judgment dismissing the action in its entirety. For the reasons set forth below, I grant Defendants' motion dismissing Doswell's federal and state law claims for malicious prosecution and Lowry's claim under the Fourteenth Amendment, and deny Defendants' motion in all other respects. I also grant in part and deny in part Plaintiffs' companion motion to establish undisputed facts.

I. Standard of Review

Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Rule 56 mandates the entry of summary judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. Internat'l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence creates no genuine issue of material fact. Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir. 1987). The dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is material when it might affect the outcome of the suit under the governing law. Id. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.

II. Relevant Factual Background

At approximately six o'clock on the morning of March 13, 1986, Helen Tokar arrived at work at the Forbes Health Center in Pittsburgh, Pennsylvania. (Defendants' Concise Statement of Material Facts [Docket No. 49], at ¶ 1.)*fn1 Ms. Tokar entered the hospital and proceeded to the lunchroom, where an assailant grabbed her and shut and locked the lunchroom door. (Id. at ¶ 2.) She was forced by the assailant onto the lunchroom floor, where he raped her and demanded oral sex. (Id. at ¶ 3.)

Ora Jean Bolte was employed at the time by the Forbes Health Center in the laundry department. (Id. ¶ 37.) While the assailant was raping Ms. Tokar, Ms. Bolte attempted to enter the lunch room door, which was locked. (Id.) Ms. Bolte pounded on the locked door for five to ten minutes. (Id. at ¶ 38.) The assailant, after completing the rape, fled the lunch room by unlocking the door, opening it, and then pushing past Ms. Bolte and fleeing the building. (Id. at ¶ 5.) Ms. Tokar immediately informed Ms. Bolte that she had been raped, and Ms. Bolte and another co-worker, Chuck Novak, gave chase. (Id. at ¶6.) Mr. Novak pursued the assailant for several blocks outside the hospital, but did not catch him. (Id.)

The Pittsburgh Police Department received a call at approximately 6:15 a.m. reporting the rape. (Id. at ¶ 7.) Uniformed officers from the Zone 5 station, Officers Michael Kondas and Joseph Paieski, responded to the call and interviewed Ms. Tokar. (Id.) Ms. Tokar identifed her assailant as a black man, between five feet, five inches (5'5") and five feet, nine inches (5'9") in height, medium complexion, short cut hair, and wearing a gray shirt, beige jacket, blue jeans and tennis shoes. (Id. at ¶ 8.) She also told the officers that she had hit her assailant on the head with a cup, breaking the cup. (Plaintiffs' Response to Defendants' Concise Statement of Material Facts [Docket No. 54], at ¶ 53.)

Fifty minutes after Ms. Tokar was raped, there was an indecent assault five blocks away from Forbes Hospital. The victim in that incident, Ms. Recena Harris, described her assailant as a black male, five feet, six inches (5'6"), with close cut hair and wearing a beige or light brown jacket. (Docket No. 71.) Ms. Harris also told the police that her assailant had something running down the side of his face. (Id.) No report of any follow-up investigation, including any identification procedure conducted with Ms. Harris, could be found in the police department records. (Docket No. 54, at ¶ 56.)

Detectives Defendant Wolf and Ellen Blacksmith of the City of Pittsburgh Sex Assault Squad were assigned to the investigation of the rape. (Docket No. 49, at ¶ 9.) In 1984, several years before the rape of Ms. Tokar, Plaintiff Doswell had been charged with the rape of Ms. Victoria Johnson. (Docket No. 54, at ¶ 71.) According to Doswell, Wolf was the lead detective charged with investigating that rape. (Id.) Doswell was subsequently acquitted of that rape charge. (Id. at ¶ 72.) After Doswell was acquitted, Doswell claims that Wolf threatened to "get him." (Id. at ¶ 102.)

Prior to interviewing Ms. Tokar, and based on a general description of the assailant, Wolf identified Doswell as a suspect. Wolf assembled a photo array of eight suspects to show Ms. Tokar. (See Docket No. 69.) Doswell's photo contained the letter "R" above the date on the photo, in a different font and color than the other writing on the photo and clearly visible. (Id.; Docket No. 54, at ¶ 74.) None of the other photos contained the letter "R". (Docket No. 54, at ¶ 51.) Wolf testified at his deposition that the "R" stood for rape. (Id. at ¶ 76.) The Pittsburgh Police Department used the "R"-designated photo of the individual it considered the main suspect in sexual assault investigations in photo arrays with no other similarly marked photos. (Id. at ¶ 78.) According to Wolf, only one "R"-designated photo was used in a photo array because the purpose of the photo array was to get an identification, and more than one "R" designated suspect might make it difficult to get that identification from the witness or victim. (Docket No. 59, at 36.) At his deposition in connection with this action, Wolf testified that at the time he assembled the photo array for the Tokar rape, he believed the practice of using of an "R" designated photo in photo arrays was unconstitutional, and that he still believes that to be the case. (Id. at 24, 29.)

At approximately 9:15 a.m., Wolf interviewed Ms. Tokar at Shadyside Hospital. (Docket No. 49, at ¶ 10.)*fn2 During the interview, Ms. Tokar told Wolf that her assailant had "some kind of whisker growth on his face." (Docket No. 54, at ¶ 59.) Ms. Tokar was then shown the photo array assembled by Wolf and she positively identified photo 120899, the photo of Doswell, as her assailant. (Docket No. 49, at ¶ 12.) As of May 14, 2008, the date of her deposition in this action, Ms. Tokar maintains that her identification of Doswell was correct. (Id. at ¶ 18.)

According to Wolf's supplemental report, Wolf then interviewed a witness, Ms. Bolte, at Forbes Hospital, who informed Wolf that she had seen the assailant and picked Doswell's photo from the same array Wolf had shown to Ms. Tokar. (Docket No. 72, at 2.) Mr. Novack, who had chased the assailant for several blocks, also was interviewed, but stated that he had never seen the assailant's face. (Id. at 3.)

That afternoon, plainclothes officer Thomas Derico ("Derico") arrested Doswell at the home of Sheila Lowry, his girlfriend. (Docket No. 72.) According to Derico's affidavit, submitted in connection with this action, Doswell answered the door in his boxer shorts and looked like he had just gotten out of bed. (Docket No. 57, at ¶ 4.) Derico had been informed by unidentified "others" in the police department that the perpetrator was expected to have a mark on his head where the victim had hit him with a cup. (Id. at ¶5.) Derico examined Doswell's head for any cuts, bruises, bumps or other marks, and found none. (Id.) Further, Derico knew Doswell from his assignment in the Homewood neighborhood of Pittsburgh, and had observed Doswell consistently wearing a neck brace in the days and weeks prior to Ms. Tokar's rape. (Id. at ¶ 7.)

Wolf interviewed Doswell at the police station. According to Wolf's report, Doswell initially informed Wolf that he had spent the night at his mother's house, in the company of Sheila Lowry (his girlfriend), Ramon (sic) (his four-year-old son), Olivia Doswell (his mother), Tracy Doswell (his sister) and Toby Spearman (a friend). (Docket No. 72, at 4.) Doswell then stated that he actually was at Sheila Lowry's house the entire time, with his son, from approximately 9 p.m. on Wednesday until he was picked up by Derico on Thursday afternoon.

Ms. Lowry had left the house around midnight on Wednesday night. (Id.)*fn3 Wolf did not take photographs of Doswell's head at the time of his arrest. (Docket No. 54, at ¶ 89.)

Prior to Doswell's trial, Doswell's attorney, Carl Marcus, Esq., made a motion before Judge David Cercone to suppress the eyewitness identification, on the grounds that the photo array was suggestive, and that the suggestive photo array tainted the subsequent witness identification at the preliminary hearing. (Docket No. 49, at ¶ 19; Docket No. 50-14, at 2.) Wolf testified for the Commonwealth and was the only witness called. (Id. at ¶ 20.) Judge Cercone held that probable cause, in the form of the eyewitness identification, did exist to arrest Doswell. (Docket No. 50-14, at 9.) He further held that the photo array was not suggestive, in that the photos depicted individuals of basically the same age, race, hairstyle and facial features, the number of photos shown was sufficient, and that the "R" on Doswell's photo was not unduly suggestive. (Id.) Judge Cercone denied the motion to suppress. (Id. at 9-10.)

A trial was held beginning on November 19, 1986. (Docket No. 50-8, at 2.) Both Ms. Tokar and Ms. Bolte identified Doswell as the rapist. (Docket No. 49, at ¶¶ 18, 39.) Wolf testified that Doswell had a mark on his forehead at the time of his arrest, was recently shaven, that Doswell changed part of his alibi during interrogation, and that the neck brace Doswell was wearing at his preliminary hearing appeared brand new. (Docket No. 68, at 2, 12, 16, 17.) A jury convicted Doswell of rape, involuntary deviate sexual intercourse, terroristic threats and unlawful restraint. (Docket No. 50-8, at 2.) He was sentenced to thirteen to twenty-six years. (Id.) On appeal from his judgment of sentence, the Superior Court affirmed the judgment and held that the trial court did not err in failing to suppress the identification of Doswell based on the photo array. (Id. at 8.)

On May 4, 2005, Judge John Zottola ordered DNA testing on the sexual assault kit taken from Ms. Tokar, as well as on a reference sample obtained from Doswell. (Docket No. 56, at ¶ 6.) The Allegheny County Crime Laboratory conducted the DNA testing and concluded that Doswell was not the source of the sperm or semen contained in the sexual assault kit. (Id. at ¶ 8.) As a result of these tests, the Allegheny County District Attorney's Office and Doswell's lawyers jointly moved to vacate Doswell's conviction. (Id.) The court granted the motion, the conviction was vacated and all charges against him were dismissed. (Id. at ¶ 10.)

In 2006, Ms. Bolte submitted an affidavit in connection with Doswell's exoneration. (Docket No. 50-11.) In her affidavit, Ms. Bolte states that she only saw the assailant for a few seconds and would not have been able to identify him. (Id. at ¶ 2.) Ms. Bolte further states that she told Wolf later that day, during her interview, that she could not identify the assailant, but that Wolf kept pointing to Doswell's picture in the photo array and saying "something like, 'this is the one'." (Id. at ¶3.) She later told a private investigator working for Doswell that she could not identify the assailant. (Id. at ¶ 4.) Ms. Bolte stated that, sometime after she spoke with the investigator, Wolf came to see her at the hospital, that he was angry, frightened her, and told her not to tell anyone that she could not identify the assailant. (Id. at ¶6.) Wolf drove Ms. Bolte to the courthouse on the day of Doswell's trial and told her to testify that she saw the assailant and to identify Doswell as such. (Id.). According to Ms. Bolte, "[t]he only reason I picked [Doswell] out in the courtroom is because Detective Wolf told me to and I was afraid of him." (Id. at ¶ 7.)

III. Defendants' Motion for Summary Judgment

A. Malicious Prosecution

Doswell's malicious prosecution claim is premised on what he characterizes as an unduly suggestive photo array, and exculpatory evidence that was not provided to the judge (Pl. Opp. Br. at 14-15.) To establish a section 1983 claim for malicious prosecution, a plaintiff must demonstrate that: (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in his favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding. Johnson v. Knorr, 477 F.3d 75, 81-82 (3d Cir. 2007). In section 1983 malicious prosecution actions, the threshold issue is the existence of probable cause. Lee v. Mihalich, 847 F.2d 66, 70 (3d Cir. 1988). Defendants' seek dismissal of Doswell's claim for malicious prosecution on the ground that probable cause existed to initiate the criminal proceeding, both from an objective standpoint and as a matter that was determined by the state criminal court proceedings. (Def. Br. at 10-13.)

As set forth in detail above, Doswell's attorney in the criminal proceeding moved to suppress the photo array identification of Doswell, arguing that the photo array was unduly suggestive since only Doswell was designated by an "R"on his photo, and he was the only person wearing a skimpy tank top. Doswell's attorney further argued that all subsequent identifications of Doswell by the victim were tainted by the suggestive photo array, and should also be suppressed. Judge Cercone held a suppression hearing, during which he viewed the photo array, Defendant Wolf testified, and Doswell was represented by counsel who cross-examined Wolf. There is no indication in the record that Doswell's attorney was not provided an opportunity to call his own witness or that the adversarial process was otherwise compromised, and Plaintiff does not make that argument herein. At the conclusion of the hearing, Judge Cercone held:

This Court finds after hearing and consideration of argument of counsel, that probable cause did exist. The basis for the probable cause is the selection of the defendant's picture from the photo array that was presented. The Court finds that the photo array was not unduly suggestive.

The factors that the Court is considering in making that determination are this: The photos shown are of individuals basically of the same age, race, hairstyle, facial features, plus the number of photos that were ...

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