United States District Court, E.D. Pennsylvania
MEMORANDUM RE: MOTIONS FOR SUMMARY JUDGMENT
Factual and Procedural Background
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
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). The Court presently considers motions for
summary judgment filed by Hulmes and the City. (ECF 26, 27).
Arrest and Prosecution of Plaintiff
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).
Accusation and Dismissal of Hulmes
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. ¶
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).
Release of 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 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).
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
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.
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).
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.
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 ...