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Charlymane Vessels, et al v. City of Philadelphia

September 8, 2011

CHARLYMANE VESSELS, ET AL.,
PLAINTIFFS,
v.
CITY OF PHILADELPHIA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Pratter, J.

MEMORANDUM

Plaintiffs Charlymane Vessels and Kevin Harrell bring this Monell claim against Defendants City of Philadelphia, former Police Commissioner Sylvester Johnson, and Sergeant John Kopecki, alleging that the Defendants engaged in a pattern or practice of failing to train, supervise, and discipline officers, in particular Officer Harry Jones, with regard to the use of force, resulting in the use of excessive force against the Plaintiffs in January of 2006. Defendants filed the instant motion for summary judgment, arguing that Plaintiffs' claims must fail because their November 23, 2009 Complaint was untimely.*fn1 Plaintiffs argue that their claims must survive because the Defendants concealed vital information regarding Officer Jones's disciplinary history and, as a result, the discovery rule, the doctrine of fraudulent concealment, and/or federal tolling principles tolled the statute of limitations. With the benefit of both briefing and oral argument, the Court will now decide these issues.

FACTUAL AND PROCEDURAL BACKGROUND

On January 19, 2006, Officer Jones and other Philadelphia police officers arrested Plaintiffs Charlymane Vessels and Kevin Harrell. Compl. ¶¶ 20-34.*fn2 During the arrest activities, Ms. Vessels suffered physical injuries at the hands of Officer Jones and required emergency medical treatment. Compl. ¶¶ 20-26. Ms. Vessels was charged subsequently with driving under the influence and resisting arrest. Compl. ¶ 25; Commonwealth v. Vessell, MC#: 06-012917.

Mr. Harrell was charged with aggravated assault and resisting arrest.*fn3 See Compl. ¶ 30.

On February 1, 2006, the Plaintiffs filed a complaint with the Philadelphia Police Department, claiming that Officer Jones and five other police officers used excessive force while arresting them. See Def. Ex. 22. Two weeks later, Plaintiffs' counsel also notified the City that the Plaintiffs were considering bringing a claim against the City for injuries sustained during the arrest. See Def. Ex. B-32 (letter dated February 15, 2006 from Plaintiffs' counsel to the City of Philadelphia).

A. The Subpoena Requests

In the second half of 2006, the Plaintiffs sent to the City and/or Police Department at least five subpoenas requesting personnel files and Internal Affairs Division ("IAD") reports concerning Officer Harry Jones. These subpoenas and the responses -- or lack of responses -- form the foundation of Plaintiffs' tolling arguments by which Plaintiffs hope to evade the impact of the applicable time limitations for initiating this suit.

1. First Subpoena

On April 19, 2006, in the context of Mr. Harrell's criminal case, Plaintiffs' counsel, W. Keith Williams II, wrote a letter to the District Attorney's Officerequesting various documents, including "all IAD reports [regarding Officer Jones], Officer Harry Jones' personnel file (to the extent it has records of complaints concerning alleged misconduct or psychological or psychiatric evaluations), and all complaints relating to his conduct as a police officer." See Def. Ex. 20 at 3278. On June 6, 2006, counsel sent a second letter to the District Attorney's Office and a subpoena to Police Commissioner Johnson requesting the same records. See id. at 3278-81. On June 19, 2006, counsel for the Philadelphia Police Department responded to Mr. Williams, returning his paperwork and instructing him that subpoenas should be served directly to 119 City Hall for processing. See id. at 3282. There is no record of whether Mr. Williams then attempted to serve the subpoena himself. Indeed, it seems unlikely that he did because he hired a private process server, MCS, in July to subpoena the records. See Pl. Ex. A, ¶ 2.

2. Second Subpoena

On August 1, 2006, MCS sent a subpoena to the Custodian of Records for the City of Philadelphia requesting "[a]ny and all reports, documents, investigations, files, complaints, letters or other writings" relating to Officer Jones, including "all IAD reports, Officer Harry Jones' personnel file (to the extent it has records of complaints concerning alleged misconduct or psychological or psychiatric evaluations), and all complaints relating to his conduct as a police officer." See Pl. Ex. A at ex. A. The caption for Mr. Harrell's criminal case appeared on the subpoena.*fn4 See id. It is unclear what precisely happened to this subpoena. Jennifer "Jay" Lamond, an MCS employee, testified at her deposition that she thought the subpoena was approved by the City, see Def. Ex. B-18.1, Lamond Dep. at 65:6-66:1, but Plaintiffs admit that as of November 7, 2006, they were aware that the City did not accept this subpoena, see Def. Ex. B-34, Pl. Resp. to Def.'s Req. for Admissions ¶ 20. MCS records, which are less than clear, do seem to indicate that the subpoena was at least delivered to the City. See Def. Ex. B-19 at 3247.*fn5

2. Third, Fourth, and Fifth Subpoenas

After receiving no response to the August subpoena, on November 7, 2006, Mr. Williams instructed MCS to serve three additional subpoenas: one under Mr. Harrell's case requesting "the entire personnel file of Officer Harry Jones," another under Mr. Harrell's case directed to Lieutenant Leonard Logan requesting the "investigative file concerning IAD control # 06-053 " (the IAD file relating to the incident involving the Plaintiffs),*fn6 and a third subpoena under Ms. Vessels criminal case requesting a host of information relating to Officer Jones, including IAD files, his personnel file, complaint forms, and other similar documents. See Def. Ex. B-20 at 3298-3300. Mr. Williams characterized Ms. Vessels's request as "essentially the same request for Kevin Harrell regarding Officer Jones, but more specific." Id. at 3298.

On November 9, 2006, MCS sent a subpoena under Ms. Vessels's criminal case caption requesting the list of documents specified by Mr. Williams's November 7, 2006 letter. See Def. Ex. B-19 at 3235-38. This subpoena was later cancelled. See Def. Ex. B-19 at 3239-40; Ex. B-18.1, Lamond Dep. at 41:5-42:8. On November 13, 2006, MCS served Lt. Logan with a subpoena under Mr. Harrell's criminal case caption requesting the IAD file for 06-053. See Def. Ex. B-19 at 3252-58. The City moved to quash the November 13 subpoena, see Def. Ex. B-3 at 3021-37, and that subpoena was later cancelled, see Def. Ex. B-19 at 3252-60; B-18.1, Lamond Dep. at 54:14-57:1.*fn7

On November 15, 2006, the City received a subpoena from MCS, captioned under Mr. Harrell's criminal action, requesting the "[e]ntire personnel file for Officer Harry Jones Badge # 3087." See Def. Ex. B-21. The City did respond to this subpoena on November 20, 2006 by producing 41 pages of personnel records for Officer Jones. See Def. Ex. B-18 at ex. D. It is undisputed that this personnel file produced by the City contained no IAD complaints. Kathleen Brooke, a manager in the Philadelphia Police Department personnel department, testified at her deposition that an officer's IAD complaints are not included in the personnel file and that the personnel department does not have access to IAD files. See Def. Ex. 35, Brooke Dep. at 41:20-42:5.

B. Motion Practice

On September 25, 2006, Plaintiffs' counsel filed a motion for production of Officer Jones's "Internal Police Department Disciplinary File" in Mr. Harrell's criminal case. See Pl. Ex. B. Counsel then filed a motion in Ms. Vessels's criminal case on November 14, 2006 for production of Officer Jones's "Internal Police Department Disciplinary File" and for production of the investigative file relating to IAD Control Number 06-053 (the file relating to the Plaintiffs' encounter with Officer Jones), specifically. See Def. Ex. B-1. On November 27, 2006, seven days after the City responded to the MCS subpoena requesting Officer Jones's "entire personnel file," the Deputy City Solicitor filed a response in opposition to the motion for production in Ms. Vessels's case. See Def. Ex. B-3. The opposition argues against disclosure of the files in connection with the criminal case and contains multiple references to the existence of more than one IAD file for Officer Jones. See, e.g., id. at 3012 ("Defendant requests 'IAD files' for Officer Jones, one of which is still an open investigation."); 3016 ("Most of the materials requested by Defendant are unrelated to Defendant or the facts of the instant case. Only one (1) of the reports requested relates to Defendant's case."); 3017 ("complete disclosure of the files violates the public's interest in protecting police officers from such disclosures") (emphasis added). Also on November 27, 2006, the City filed a motion to quash the subpoena received by Lt. Logan requesting the investigative file for the open investigation of Officer Jones relating to the Plaintiffs' arrest. See id.

On November 28, 2006, the Court presiding over the Harrell criminal case held a hearing on the motions. See Def. Ex. 16. During that ...


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