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December 22, 1997

JAMES HERON, Plaintiff
CITY OF PHILADELPHIA, et al., Defendants

The opinion of the court was delivered by: KATZ

 AND NOW, this 22 day of December, 1997, upon consideration of defendants' Motion for Partial Summary Judgment, and the response thereto, it is hereby ORDERED that the said motion is GRANTED in part and DENIED in part as follows: The § 1983 claim based on excessive force against the City of Philadelphia and Commissioner Neal is dismissed with prejudice. The remainder of the motion is denied, as there are genuine issues of material fact remaining. See Fed. R. Civ. P. 56(c).



 Plaintiff Heron was in Amici's Diner with friends in the early morning hours of August 13, 1995, after having spent some hours at a neighborhood bar. After having an argument with his girlfriend, plaintiff got up to leave the diner. On his way out, he had a confrontation with two police officers who were in the diner, defendants Officers Young and Scott, which resulted in the officers physically restraining him and placing him under arrest. The events that occurred are in much dispute: Plaintiff claims that he made one comment to the officers while walking by their table, and an officer lunged at him without provocation. Pl. Ex. B (Heron deposition). The officers say that plaintiff was acting drunk the whole time they were in the diner, including shouting, cursing, and taking a swing at his girlfriend in the course of their argument. The officers further say that when plaintiff walked by their table, he leaned on it, barely able to stand up, and cursed at them and poked one of them in the chest. Def. Ex. D (Young deposition).

 Plaintiff was handcuffed and placed under arrest for intoxication. He was taken into custody and, according to a Philadelphia Police Department Directive, held in a cell until he sobered up. The officers determined that there were no outstanding warrants for the plaintiff, then released him without charging him with any crime. Def. Ex. D at 21.

 Plaintiff filed this suit, bringing claims against Officers Scott and Young, Police Commissioner Richard Neal, and the City of Philadelphia. He alleges that the officers arrested him without probable cause and used excessive force in arresting him, and that the City of Philadelphia Police Department has a custom of allowing its officers to do so. He alleges violations of 42 U.S.C. § 1983 and various other civil rights statutes, as well as making various state law tort claims against the individual defendants. In the present motion for partial summary judgment, defendants move for summary judgment on several of the claims, each of which will be addressed in turn below.


 Summary Judgment Standard

 Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. See Fed. R. Civ. P. 56(c). At the summary judgment stage, the court does not weigh the evidence and determine the truth of the matter. Rather, it determines whether or not there is a genuine issue for trial. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). In making this determination, all of the facts must be viewed in the light most favorable to, and all reasonable inferences must be drawn in favor of, the non-moving party. See id. at 256. The moving party has the burden of showing there are no genuine issues of material fact, see Gans v. Mundy, 762 F.2d 338, 340-41 (3d Cir. 1985), and, in response, the non-moving party must produce more than a mere scintilla of evidence to create a genuine factual issue and defeat the motion. See Anderson, 477 U.S. at 255.

 Section 1983 Claim Against Individual Officers Based on Arrest Without Probable Cause

 Plaintiff's complaint contains a claim under 42 U.S.C. § 1983 *fn1" against all defendants based on the allegation that Officers Young and Scott arrested Mr. Heron without probable cause. Defendants' motion argues that the officers had "overwhelming" probable cause to arrest plaintiff, based upon their observations of plaintiff's conduct.

 Probable cause is present when there exist "facts and circumstances within the officer's knowledge that are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." Michigan v. DeFillippo, 443 U.S. 31, 37, 61 L. Ed. 2d 343, 99 S. Ct. 2627 (1979). As discussed above, there is a significant factual dispute about plaintiff's behavior in the diner in the time leading up to his arrest and thus about the facts and circumstances that provided the basis for arrest. Thus, there is a genuine factual issue as to whether the officers had ...

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