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Bush v. Hulmes

United States District Court, E.D. Pennsylvania

May 18, 2018

FELDON BUSH
v.
CHRISTOPHER HULMES and THE CITY OF PHILADELPHIA

          MEMORANDUM RE: MOTIONS FOR SUMMARY JUDGMENT

          BAYLSON, J.

         I. Factual and Procedural Background

         In this action, initiated on February 21, 2017, Plaintiff Bush alleges that his Fourth Amendment rights were violated as a result of malicious prosecution by Christopher Hulmes (“Hulmes”) and policies, customs, omissions, and deliberate indifference of the City of Philadelphia (“the City”). The allegations, brought pursuant to 42 U.S.C. § 1983, relate to Plaintiff's arrest and subsequent prosecution for narcotics and firearms offenses.

         On May 5, 2017, the City filed an Answer to the Complaint, and Hulmes filed a Motion to Dismiss on May 6, 2017. (ECF 6, 11). The Court later denied the Motion to Dismiss as moot in light of Plaintiff's representation that his complaint alleges a single count of malicious prosecution, and does not seek relief for any alleged unlawful arrest, search, or use of force. (ECF 16). Thereafter, Hulmes filed an Answer on July 18, 2017. (ECF 17).[1] The Court presently considers motions for summary judgment filed by Hulmes and the City. (ECF 26, 27).

         A. Arrest and Prosecution of Plaintiff

         Plaintiff's complaint alleges that his arrest on May 25, 2007 was based on false information provided by Hulmes. (Complaint (“Compl.”), ECF 1, ¶ 7). Following the arrest, Plaintiff was charged with, inter alia, possession of narcotics, possession of narcotics with intent to distribute, criminal conspiracy, and violations of the Uniform Firearms Act. (City Statement of Facts (“City SOF”), ECF 27-1, ¶ 44). Following a jury trial held in April, 2010, Plaintiff was convicted of possession of narcotics with intent to deliver and criminal conspiracy. (Id. ¶ 50). In June, 2010, Plaintiff was sentenced to 5-10 years imprisonment for possession of narcotics with intent to distribute and one year of consecutive probation for criminal conspiracy. (Id. ¶ 51). Plaintiff has consistently maintained his innocence of all charges. (Id. ¶ 52).

         B. Accusation and Dismissal of Hulmes

         Between the time of Plaintiff's arrest and his trial, on August 21, 2008, Hulmes was “accused by” a Philadelphia Assistant District Attorney (“ADA”) of misconduct. The ADA alleged that, in a narcotics and firearms possession case, Hulmes told her just prior to trial that the firearm at issue had been recovered inside the criminal defendant's home, but that Hulmes had previously told her the firearm was found in an alley (and lied in official police paperwork) “in order to help [the defendant] who had been a good informant in the past.” (Id. ¶ 92(a)(ii)). The allegations were investigated by the Philadelphia Police Department's (“PPD”) Internal Affairs Bureau (“IAB”) and the allegations were not sustained. (Id. ¶ 92(a)(ii), (a)(viii)).

         Four years after Plaintiff's trial and sentencing, on August 4, 2014, Hulmes was again accused of lying in connection with a criminal case unrelated to Plaintiff's. (Id. ¶ 93). The accusation, emailed to the PPD's Public Affairs Division by a Staff Writer for Philadelphia City Paper, stated that, “[o]n January 24, 2012, Judge James Murry Lynn granted a motion to suppress in CP-51-CR-0007188-2010 because Officer Christopher Hulmes [] admitted to lying to an issuing magistrate and in his preliminary hearing.” (Id.). During the ensuing investigation, Hulmes was arrested. (Id. ¶ 95). IAB determined that Hulmes had provided false testimony under oath, and he was dismissed from the PPD on May 26, 2015. (Id. ¶ 96).

         C. Release of Plaintiff

         Plaintiff filed a petition for relief under the Post-Conviction Relief Act (“PCRA”) on July 27, 2016, which was granted on January 30, 2017. That same day, the Philadelphia District Attorney's Office (“DAO”) nolle prossed[2] Plaintiff's conviction. (City SOF, ¶ 55). Despite declaring nolle prosequi, the DAO did not state on the record any judgment as to Plaintiff's guilt or innocence with respect to the crimes for which Plaintiff was convicted and sentenced in 2010. (Id. ¶ 58).

         II. Parties' Arguments

         In Hulmes' Motion for Summary Judgment (ECF 26), he contends that Plaintiff's claim for malicious prosecution fails because Plaintiff cannot establish: (1) that the criminal charges against him were terminated in his favor, (2) that the prosecution was initiated without probable cause, and (3) Hulmes is entitled to qualified immunity because Hulmes' conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known .

         The City's Motion for Summary Judgment (ECF 27) echoes the first two arguments mentioned above, and adds that Plaintiff's municipal liability claim against the City should likewise fail because: (1) no one within the PPD had notice of Hulmes' false testimony prior to Plaintiff's arrest and trial (Hulmes' false testimony in 2012 occurred after Plaintiff's trial in 2010); (2) Plaintiff has not presented record evidence of any municipal policy or custom that caused his alleged harms; and (3) Plaintiff has not presented record evidence showing that a municipal “policymaker” was deliberately indifferent to his rights.

         Plaintiff submitted responses to both motions (ECF 29, 30), which are jointly summarized below. Plaintiff asserts that the criminal prosecution was terminated in his favor because the nolle prosequi was not a result of any agreement or compromise between the parties. Additionally, Plaintiff asserts that because he is factually innocent of the charges, there was no probable cause to initiate a criminal prosecution against him. Finally, citing an attached expert report, Plaintiff contends that his claim against the City should not be dismissed at this stage because the City itself was “deliberately indifferent” to “a custom of acceptance of falsification, cover up and unbalanced IAD investigation led to Plaintiff's harm.” (ECF 30, Response to MSJ, at 10, 12).

         In their Reply briefs (ECF 31 and 32), the City and Hulmes contend: (1) a nolle prosequi which arises without agreement between the parties can be sufficient to preclude the favorable termination requirement for malicious prosecution; (2) on the record, probable cause existed for Plaintiff's arrest in 2007; (3) Hulmes is entitled to qualified immunity; (4) the expert report submitted as part of Plaintiff's response was not accompanied by a statement that it was prepared under penalty of perjury and thus it should not be considered; and (5) the expert report invades the province of the factfinder by expressing conclusory legal opinions.

         III. Legal Standard

         A district court should grant a motion for summary judgment if the movant can show “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A ...


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