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Kevin Furey v. Police Officer Travis Wolfe

August 17, 2011

KEVIN FUREY
v.
POLICE OFFICER TRAVIS WOLFE, ET AL.



The opinion of the court was delivered by: Elizabeth T. Hey United States Magistrate Judge

MEMORANDUM AND ORDER

In this action, Plaintiff Kevin Furey ("Plaintiff") alleges that his civil rights were violated by Police Officer Travis Wolfe ("Officer Wolfe"), the City of Philadelphia (the "City"), and Philadelphia Police Commissioner Charles Ramsey ("Commissioner Ramsey") (collectively, "Defendants"), as a result of Officer Wolfe making an off-duty arrest of Plaintiff in the early morning hours of April 5, 2008. Presently before the court is Defendants' motion for leave to file a motion for summary judgment (Doc. 98).*fn1 For the reasons that follow, Defendants' motion will be granted.

I. RELEVANT PROCEDURAL HISTORY

On March 10, 2010, Plaintiff commenced this action in the Philadelphia Court of Common Pleas, and on April 23, 2010, Defendants removed it to this Court. See Doc. 1. Plaintiff alleges that his civil rights were violated pursuant to 42 U.S.C. § 1983. See Compl. at First Cause of Action. Plaintiff also alleges various state law claims against Officer Wolfe. Id. at Second Cause of Action. Among other things, Plaintiff alleges that Officer Wolfe unlawfully used force against him without probable cause to believe he had committed a crime, assaulted Plaintiff, subjected him to an unlawful arrest, and committed perjury.See id. ¶¶ 9-16. Plaintiff further alleges that Officer Wolfe's conduct was the result of policies, practices and customs and deliberate indifference on the part of the City and Commissioner Ramsey. See id. at First Cause of Action.

As alleged in the complaint, on April 5, 2008, Plaintiff, an undergraduate at Temple University, was arrested by Officer Wolfe and charged with several criminal offenses. See Compl. ¶¶ 9, 14, 30. Of particular relevance to the instant motion are the allegations pertaining to the handling of the criminal charges:

17. At a continued Preliminary Hearing held in November 2008, Internal Affairs detectives appeared and had a secret meeting with the Chief of the Philadelphia District Attorney's Municipal Court Unit, Charles Ehrlich, whereupon Charles Ehrlich offered plaintiff admission to an ARD [Accelerated Rehabilitative Disposition] program only if plaintiff agreed not to sue and other conditions. The Internal Affairs officer, defendant Wolfe, the District Attorney in the Courtroom, Deputy District Attorney Ehrlich, screamed at plaintiff's attorney in a threatening manner, terrorizing plaintiff, who overheard in the hallway, believing that he would be wrongfully prosecuted and convicted of crimes he did not commit.

18. At the actual ARD hearing, which took place on June 10, 2009, plaintiff was placed in the ARD program without the requirement that he not sue defendants and the other requirements as set by Charles Ehrlich, who had no authority to impose terms for admission into the ARD program, since Ehrlich was not Chief on the ARD unit.

Compl. §§ 17-18. Meanwhile, on April 5, 2009 -- between the date of the Preliminary Hearing and the ARD Hearing, and exactly one year from the date of Plaintiff's arrest -- Officer Wolfe testified under oath at a Temple University disciplinary hearing ("Temple Hearing"). Plaintiff was subsequently expelled from Temple University. He entered and completed the ARD program, and the criminal charges have been expunged.

On May 12, 2010, Defendants filed a motion to dismiss based on Plaintiff's alleged agreement not to bring a civil action in exchange for the dismissal and expungement of the criminal charges after the successful completion of the ARD program. See Doc. 3. On May 26, 2010, Judge McLaughlin denied Defendants' motion to dismiss without prejudice to re-file "at a later date." See Doc. 9.

On May 3, 2011, the undersigned permitted Defendants to depose Plaintiff's counsel, Ms. Furey, "regarding the circumstances surrounding the alleged coercion of Plaintiff to accept ARD -- a decision which forms part of the basis of the claims asserted in Plaintiff's complaint." See Doc. 66 at 9. I limited the deposition of Plaintiff's counsel to the following: "(1) the facts of what occurred at the court proceedings referenced in paragraphs 17 and 18 of the complaint, (2) her knowledge of an alleged 'secret meeting' between Internal Affairs detectives and Mr. Ehrlich as referenced in paragraph 17 of the complaint, (3) the loud conversation(s) she had or overheard within earshot of Plaintiff immediately prior to his acceptance of ARD, also as referenced in paragraph 17 of the complaint, (4) the alleged telephone conversation Ms. Furey had with Steve Robinson's stepmother . . ., and (5) any other matters agreed to by counsel." Id. at 11.

Plaintiff's deposition occurred on June 22, 2011, at which time defense counsel explored Plaintiff's alleged agreement not to sue Defendants in exchange for the dismissal and expungement of the criminal charges against him following the successful completion of the ARD program. Ms. Furey's deposition occurred in my courtroom on June 23, 2011, at which time defense counsel explored those areas permitted by my May 3, 2011 Order.

On July 5, 2011, defense counsel sent a letter to my chambers requesting a status conference for the purpose of staying discovery to allow Defendants to file a motion for summary judgment. After Plaintiff responded by letter that did not explicitly oppose Defendants' request to file a summary judgment motion, Defendants' request was granted by Order dated July 12, 2011. See Doc. 89. Plaintiff immediately filed a formal motion for reconsideration. See Doc. 90. Following a teleconference with counsel, I granted in part and denied in part Plaintiff's motion for reconsideration by Order dated July 13, 2011. See Doc. 91. Specifically, I denied the motion to the extent that the order staying discovery remained in place, but granted the motion in part by requiring Defendants to file a "formal motion briefly setting forth the issue they plan to raise in their summary judgment motion, whether the evidentiary record is complete on the issue, and whether it is appropriate that summary judgment be filed before the entire discovery record is complete." Id.

Defendants filed a formal motion for leave to file summary judgment on July 20, 2011, arguing that discovery is now complete as to the issue raised in the motion to dismiss denied without prejudice by Judge McLaughlin on May 26, 2010, and because the issue will bring the case to a final and full conclusion. See Doc. 98.*fn2 Subsequently, Plaintiff filed an ...


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