United States District Court, E.D. Pennsylvania
J. PAPPERT JUDGE
Kennedy brings this civil action pursuant to 42 U.S.C. §
1983 against the City of Philadelphia, Mayor James Kenney,
Commissioner Richard Ross, the Philadelphia Police
Department, Philadelphia Police Officers Nathaniel Haper,
Richard Kurth, Joseph McCauley, Derrick Jones, Richard Lynch,
Jr., Junius Smalls, Taven Washington, Gregory Fagan, Jr.,
Patrick Love, Jr., and Wright, former District Attorney Seth
Williams, Assistant District Attorneys Lou Tumolo, Courtney
Malloy, Jennifer Friend-Kelly, and Jennifer O. Andress,
Judges Sheila Woods-Skipper, Joyce O. Eubanks, Daniel J.
Anders, and Giovanni Campbell, and defense attorneys Keir
Bradford-Grey, Marit Anderson, Joseph Patrick McPeak, Tess
Senderowicz, and Jilozian Edwards. Kennedy raises claims of
false arrest and malicious prosecution related to criminal
proceedings in the Philadelphia Court of Common Pleas.
22, 2017, the Court received Kennedy's initial complaint.
On July 19, 2017, the Court granted Kennedy leave to proceed
in forma pauperis, dismissed his initial complaint,
and allowed him to file an amended complaint within thirty
(30) days. (ECF No. 9.) He did so on July 26, 2017. (ECF No.
11.) On July 31, 2017, the Court stayed further proceedings
in this case until Kennedy informed the Court that his
criminal case had been resolved. (ECF No. 12.) On September
26, 2017, the Court received a letter from Kennedy stating
that he had been acquitted of all charges and that he wished
to “move forward with [his] civil suit.” (ECF No.
13.) He filed a Second Amended Complaint on October 16, 2017
(ECF No. 14), which the Court now dismisses.
October 30, 2014, Kennedy was arrested for “allegedly
[selling] drugs out of 2451 W Toronto St.” (Second Am.
Compl. ¶ 1.) He was charged with possession of a
controlled substance with intent to deliver and criminal
conspiracy. (Id.) Kennedy contends that the officers
who arrested him did so “without probable cause and
without a search warrant, ” and that they conspired to
violate his constitutional rights. (Id.) He also
alleges that various prosecutors, judges and defense
attorneys violated his rights during his criminal
proceedings. A review of public dockets reflects that
Kennedy's criminal proceedings were dismissed on
September 19, 2017, and that a “[m]istrial was
intentional conduct of Commonwealth witness (Police Officer
McCauley).” See Commonwealth v. Kennedy,
Docket No. CP-51-CR-0012955-2014 (Phila. Ct. Common Pleas).
the Court previously granted Mr. Kennedy leave to proceed
in forma pauperis, 28 U.S.C. §
1915(e)(2)(B)(ii) applies. That statute requires the Court to
dismiss the complaint if it fails to state a claim. Whether a
complaint fails to state a claim under §
1915(e)(2)(B)(ii) is governed by the same standard applicable
to motions to dismiss under Federal Rule of Civil Procedure
12(b)(6), see Tourscher v. McCullough, 184 F.3d 236,
240 (3d Cir. 1999), which requires the Court to determine
whether the complaint contains “sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quotations omitted). Conclusory
statements and naked assertions will not suffice.
Id. The Court may also dismiss claims based on an
affirmative defense if the affirmative defense is obvious
from the face of the complaint. See Ray v. Kertes,
285 F.3d 287, 297 (3d Cir. 2002); see also McPherson v.
United States, 392 F. App'x 938, 943 (3d Cir. 2010).
The Court may also consider matters of public record.
Buck v. Hampton Twp. Sch. Dist., 452 F.3d 256, 260
(3d Cir. 2006). As Kennedy is proceeding pro se, the
Court construes his allegations liberally. Higgs v.
Att'y Gen., 655 F.3d 333, 339 (3d Cir. 2011).
state a claim under § 1983, a plaintiff must allege the
violation of a right secured by the Constitution and laws of
the United States, and must show that the alleged deprivation
was committed by a person acting under color of state law.
West v. Atkins, 487 U.S. 42, 48 (1988).
Kennedy's Second Amended Complaint fails to allege a
meritorious claim against any of the named defendants.
Claims against the City, Police Department, Mayor Kenney, and
has not stated a claim against the City of Philadelphia
because he has not alleged a municipal custom or policy that
led to the violation of his rights. Monell v. Dep't
of Soc. Servs., 436 U.S. 658, 691 (1978)
(municipal liability under § 1983 must be predicated
upon a municipal policy or custom). Furthermore, the
Philadelphia Police Department is not a separate legal entity
that can be sued. See Regalbuto v. City of Phila.,
937 F.Supp. 374, 377 (E.D. Pa. 1995). Moreover, nothing in
the Second Amendment Complaint plausibly suggests that Mayor
Kenney and Commissioner Ross had any personal involvement in
Kennedy's case such that they could be held responsible
for anything related to Kennedy's prosecution.
See Barkes v. First Corr. Med., Inc., 766
F.3d 307, 320 (3d Cir. 2014), reversed on other
grounds, Taylor v. Barkes, 135 S.Ct. 2042
Claims against the Police Officers
to Kennedy, the named police officers violated his rights on
October 30, 2014 by arresting him “without probable
cause and without a search warrant.” (Second Am. Compl.
¶ 1.) He also contends that on November 17, 2014,
Officer McCauley violated his rights by “testif[ying] .
. .that he went and [obtained] a search warrant[, ]
committing [perjury] and falsification.” (Id.
¶ 2.) Kennedy alleges that all of the named officers
conspired to violate his rights. (Id. ¶¶
§ 1983 actions, federal courts courts apply the statute
of limitations governing personal injury claims in the state
where the cause of action arose. Wallace v. Kato,
549 U.S. 384, 387 (2007). In Pennsylvania, the relevant
statute of limitations is two years. See 42 Pa.
Cons. Stat. § 5524. The limitations period begins to run
from the time “the plaintiff knew or should have known
of the injury upon which [his] action is based.”
Sameric Corp. of Del., Inc. v. City of Phila., 142
F.3d 582, 599 (3d Cir. 1998). Here, Kennedy alleges he was
falsely arrested on October 30, 2014, so his claim accrued on
that date. See Montgomery v. De Simone, 159 F.3d
120, 126 (3d Cir. 1998). His claim regarding false testimony
accrued on November 14, 2014, when Kennedy knew or should
have known that Officer ...