United States District Court, D. Delaware
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For Patricia Holmes, Personal Representative of the Estate of Medford Tyree Holmes, Deceased, Plaintiff: S. Harold Lankenau, LEAD ATTORNEY, Lundy Law of Delaware, LLC, Wilmington, DE; L. Kenneth Chotiner, PRO HAC VICE.
For City of Wilmington, Kimberly Pfaff, Wilmington Police Detective, Randy Nowell, Wilmington Police Detective, John Doe 1-10, Police Members, Defendants: Daniel Foster McAllister, LEAD ATTORNEY, City of Wilmington Law Department, Wilmington, DE.
SUE L. ROBINSON, United States District Judge.
At Wilmington this 4th day of February, 2015, having reviewed defendants' motion to dismiss and the papers submitted in connection, the court will grant in part and deny in part said motion, for the reasons that follow:
1. On May 13, 2013, Medford Holmes (" Holmes" ) filed a complaint pursuant to 42 U.S.C. § § 1983, 1985 and 1988, the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, the Delaware Constitution and under the Delaware State law. (D.I. 1) In response, Kimberly Pfaff (" Detective Pfaff'), defendant Randy Nowell
(" Detective Nowell" ), defendant City of Wilmington (" the City" ), and John Doe Number One through Ten (" the Doe defendants" ) filed a motion to dismiss. (D.I. 7)
2. Upon discovering that Holmes was no longer living, the court issued an order to show cause why the complaint should not be dismissed for failure to substitute a party, pursuant to Fed.R.Civ.P. 25. (D.I. 12) The motion to dismiss was denied without prejudice to renew. On March 6, 2014, a motion was filed to substitute Patricia Holmes, personal representative of the estate of Medford Tyree Holmes, for Medford Holmes as plaintiff in this case. (D.I. 13) On March 28, 2014, the order to substitute was granted. (D.I. 15) Subsequently, defendants filed a motion to dismiss, which is fully briefed and before the court. (D.I. 17, 18, 19, 20)
3. On April 27, 2011 at approximately 3:30 p.m., Antonio Smith (" Smith" ) was outside his residence located at 2806 North Jefferson Street, Wilmington Delaware. (D.I. 1) Smith was conversing with a friend, Abdullah Talib-Din (" Talib-Din" ). A man (" the shooter" ) approached Smith and Talib-Din from the direction of 29th Street and fired a .40 caliber handgun, first, at Smith and, then, at Talib-Din. Smith was fatally wounded. Although shot multiple times, Talib-Din was transported to a hospital and survived.
4. On the evening of April 27th, Detective Pfaff and Detective Nowell (collectively, " detectives" ) interviewed several witnesses. One of those interviewed (" Witness 1" ), suffers from Expressive Aphasia, a condition caused by head trauma attributable to a prior automobile accident. As a result of this condition, Witness 1 is unable to write and has severely limited verbal communication skills. Witness 1 expresses himself through physical movements, including hand gestures, head gestures and facial expressions, as well as through noises.
5. According to Detective Nowell, Witness 1 indicated that he observed the shooting from inside his home, which is located fifty yards away from the corner. There is an evergreen tree and several houses in between the location of the shooting and Witness 1's house. After the shooting, Witness 1 went to the front of his house where he saw the shooter for approximately 30 seconds (from 20 feet away), as the shooter fled around the corner.
6. Although Detective Nowell claimed that Witness 1 had an unobstructed view of the scene, Witness 1 did not provide any
descriptive information of the shooter. Living at home with Witness 1 were his parents, (" Witness 2" ) and (" Witness 3" ). Witness 2 gave defendant Nowell a description of the shooter. Two weeks later, on May 11, 2011, the detectives developed Holmes as a suspect.
7. On May 12, 2011, the detectives created a photo lineup that included Holmes (in the third position) and returned to present the array to the three witnesses. The detectives took each witness, one at a time, into a separate room to review the photo line-up. Detective Pfaff was equipped with an audio recorder to record the interviews.
8. After speaking with Witness 2, Detective Pfaff showed the photo array to Witness 1. The detectives claimed that Witness 1 became visibly upset when viewing the array, however, Witness 1 did not identify Holmes as the shooter. (D.I. 1 at ¶ ¶ 26-27)
9. The detectives segregated and showed Witness 3 the photo lineup. Witness 3 was unable to identify anyone in the array. Next, the detectives showed the array to Witness 2, who identified the individual in position 4 (not Holmes) as the shooter. ( Id. at ¶ ¶ 28-29)
10. Witness 3 ultimately identified the person in position 2 (not Holmes) as the shooter. In response, Detective Pfaff stated: " [Y]eah, well no, that's not the one that we're looking at, no but I appreciate ...." ( Id. at ¶ 30; Holmes, Id. at *3-4) Despite the fact that Witnesses 2 and 3 failed to identify Holmes, the detectives, along with Witnesses 2 and 3, encouraged Witness 1 to identify the shooter. (D.I. I at ¶ 31)
11. An unidentified male then entered the house and conversed with Detective Pfaff, leaving Detective Nowell alone with the witnesses. With the recorder out of range, Detective Nowell held the photo array up to his chest. Witnesses 2 and 3 were ...