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Allen v. Smith

United States District Court, E.D. Pennsylvania

August 12, 2019

TODD ALLEN, Plaintiff,
v.
CHAD SMITH, et al., Defendants.

          MEMORANDUM

          ROBERT F. KELLY, J.

         Pro se Plaintiff Todd Allen has filed a Complaint pursuant to 42 U.S.C. § 1983 alleging constitutional claims. He has also filed a Motion to Proceed In Forma Pauperis. Because it appears that Allen is unable to afford to pay the filing fee, the Court will grant him leave to proceed in forma pauperis. For the following reasons, certain claims in the Complaint will be dismissed with prejudice, other claims will be dismissed without prejudice, and other claims will be permitted to proceed at this time. Allen will also be granted leave to file an amended complaint if he chooses to do so to attempt to cure the defects noted by the Court concerning the claims dismissed without prejudice.

         I. FACTS

         Allen alleges constitutional claims for money damages under the Fourth, Sixth and Fourteenth Amendments as well as state law claims arising from his arrests on May 16 and May 20, 2017, after allegedly warrantless searches. Allen claims that Defendant Police Officer Chad Smith violated his Fourth Amendment rights when, although lacking probable cause to believe that Allen had committed an offense, he arrested him on drug charges. (ECF No. 2 at 9.)[1] For the May 16 arrest, he asserts that three of the four charges were later dismissed and for the May 20 arrest, all of the charges were dismissed. (Id.)

         Allen next asserts that Defendant Smith fabricated evidence in violation of his due process rights at a scheduled June 27, 2017 preliminary hearing on the charges. That hearing was allegedly continued because lab reports were not yet available and was re-calendared for July 28, 2018. (Id. at 10.) At that time, Smith and Defendant Jane Doe District Attorney falsely told the judge that the lab reports for both arrests were available.[2] (Id.) Allen asserts that the Commonwealth only had the report for the May 16 arrest, but the fabrication caused the judge to hold all charges over for trial. (Id.) Allen also alleges that Smith planted evidence on him, there was no proof tying Allen to the drugs sent to the lab, such as an evidence log or photographs, and he claims a photograph of the drugs recovered on May 20 shows they are different from the drugs tested by the lab. (Id. at 10, 21.) Finally, he alleges that Smith conducted an illegal search of his phone. (Id.) Allen also asserts state law claims against Defendant Smith for false arrest, malicious prosecution, intentional infliction of emotional distress, and negligence. (Id. at 11-12.)

         Allen asserts that Defendant Sergeant Michael Regan fabricated information contained in the incident report about the arrests. (Id. at 9, 13.) This included information about when Defendant Smith's shift ended, who witnessed the May 16 incident, where the May 20 incident occurred, and what drugs were seized. (Id. at 13-14.) He asserts Regan violated his constitutional right to a fair trial, and asserts state law claims of malicious prosecution, false arrest, “reckless investigation, ” supervisor liability, intentional infliction of emotional distress, and negligence. (Id. at 14-15.)

         Defendant Harry Hall is identified as a police evidence technician. Allen contends that Hall fabricated the date on a property request form. (Id. at 15-16.) This allegedly helped the other Defendants frame Allen for the drug charges. (Id. at 16.) Defendant Police Officer Michael Evans allegedly fabricated a July 13, 2017 property request form by putting Allen's name on it and by stating the evidence was collected at 11 a.m., when it was actually collected at 12:07 p.m. (Id. at 16.) Defendant Cara McMeans, an evidence technician at NMS Lab, a company used by the Montgomery County District Attorney's Office to test drugs, allegedly improperly accepted evidence from Defendant Hall when the request form was deficient. (Id.) Defendant Alia Harris, an employee of NMS who tested the substance and determined it was heroin, allegedly lied when she wrote a report reciting Allen's name when the chain of custody documents were not in order, and thereby assisted the police to frame him.[3] (Id.)

         Defendant Tom Fahy, a police property officer, allegedly stole thirty of the fifty oxycodone pills for which Allen had been arrested. (Id. at 17.) Allen asserts a not otherwise specified Fourteenth Amendment claim against Fahy, as well as an unspecified state law claim. (Id.)

         Defendants Edward Rideout, Allen's appointed defense attorney, and Douglass Lavenberg, an Assistant District Attorney, participated in a March 19, 2018 hearing presided over by Judge Steven Tolliver, and allegedly conspired to deprive Allen of his right to counsel. Allen contends that they permitted the Judge to allow Rideout to act as standby counsel only on all pre-trial motions, except those dealing with chain of custody issues, without a waiver colloquy, and engaged in ex parte communications with the Judge outside of his presence. (Id. at 18.)

         Defendants Thomas Carluccio, a defense lawyer, Rideout, Emily Seiber, a public defender, Regan, and Smith allegedly conspired to ignore the fabrication of evidence, refused to expose police misconduct, “and assisted [sic] I plead guilty.” (Id.) Defendants Sharon Meisler and Jodi Lukens, both of whom are alleged to be defense attorneys, also allegedly conspired with Defendant Regan concerning Allen's warrantless arrest in 2009, by never telling Allen that Regan had no warrant and convincing him to plead guilty. (Id. at 19.)

         Allen also asserts a Monell claim against Cheltenham Township and the Montgomery County District Attorney Drug Task Force. See Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658 (1978). Based upon his own multiple arrests, Allen alleges that Cheltenham has a custom of permitting officers to fabricate evidence and lie in probable cause affidavits. (ECF No. 2 at 19.) He also asserts that it maintains an inadequate internal affairs policy and fails to properly train officers not to violate citizen's civil rights. (Id.) Allen contends that Defendant Regan is the supervisor of Cheltenham's component of the Montgomery County District Attorney Drug Task Force and has final policy making authority. (Id. at 20.) He alleges that the other Defendants' illegal actions have been ratified by Regan and that the Montgomery County District Attorney has failed to establish training, supervision and discipline policies to prevent perjured testimony and the fabrication of evidence. (Id.)

         Finally, Allen names NMS Labs as a defendant under a Monell theory asserting that it is funded by the District Attorney's Office. He contends that it is liable under the Due Process clause because it maintains policies to accept items to be tested that have insufficient chain of custody documents. (Id. 20-21.)

         A review of public records reveals that Allen entered a plea of guilty on November 5, 2018, before Judge Tolliver to a charge of criminal use of a communication facility. See Commonwealth v. Allen, CP-46-CR-5126-2017. Charges of manufacture, delivery, or possession with intent to manufacture or deliver controlled substances were nolle prossed. (Id.) The arresting officer is listed as Defendant Smith of the Cheltenham Township Police Department. (Id.) Allen received a bail hearing on May 20, 2017, and preliminary hearing on July 28, 2017 at which time the charges were held for court. (Id.) Another hearing was held on October 11, 2017, at which time the Commonwealth filed an information and the charges were again held for court. (Id.) Allen was represented at various times by Edward Rideout and Thomas Carluccio.

         Prior to the guilty plea, defense counsel filed motions to suppress evidence, to compel disclosure of a confidential informant's identity, to prohibit chain of custody evidence, for additional discovery, for internal affairs files and time shift cards, to dismiss fingerprint and DNA evidence, and motion pursuant to Rule 600, among others. (Id. at 13-20.) These motions ...


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