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February 12, 2004.

WALTER E. THOMAS, JR., Plaintiff

The opinion of the court was delivered by: FRANKLIN VAN ANTWERPEN, District Judge


Plaintiff Walter E. Thomas, Jr., ("Plaintiff) has filed a complaint against Defendants IPC International Corporation ("IPC"), LaSalle Partners Management Services, Inc., ("LaSalle Partners"), Borough of Wyomissing ("Wyomissing"), Police Officer John G. Phillips ("Officer Phillips"), and Police Chief Jeffrey R. Biehl ("Police Chief Biehl") for injuries arising out of an altercation with Officer Phillips. Against Defendant IPC, Plaintiff has alleged malicious prosecution (Count I), false imprisonment (Count II), false arrest (Count III), intentional infliction of emotional distress (Count IV), and negligence (Counts V). Plaintiff has alleged an additional negligence claim against Defendant LaSalle Partners (Count VI). Finally, Plaintiff alleges § 1983 violations against Wyomissing and Biehl (Counts VII) and Phillips (Count VIII). Before us now are two motions for summary judgment, one submitted on behalf of Officer Phillips and Police Chief Biehl and one on behalf of IPC. For the reasons stated below we deny Defendants' Borough of Wyomissing, Police Chief Biehl, and Officer Phillips motion for Page 2 summary judgment and grant in part and deny in part Defendant IPC's motion for summary judgment.

I. Facts

  On or about September 28, 2000, Plaintiff was arrested in connection with the burglary of the Berkshire Mall in Wyomissing, Pennsylvania. Plaintiff pled guilty to the offense, which he committed with the assistance of his cousin, Craig Charlemagne, who was then employed by IPC as Public Safety Officer at the Berkshire Mall. As a result of the burglaries, IPC prepared a "Defiant Trespass Notice" to notify Plaintiff and Charlemagne that they were no longer permitted on mall property. The "Defiant Trespass Notice" was apparently never presented to Plaintiff, as evidenced by the notation "not present" where Plaintiff's signature should have been.

  On the evening of October 24, 2000, Plaintiff drove to the Old Country Buffet Restaurant with his daughter, Jasmine Thomas, to pick up her mother, Jennifer Setta. The Old Country Buffet Restaurant is located at Berkshire Mall West, which is across the street from, but still part of, the Berkshire Mall. While Plaintiff waited inside the car for his daughter to get her mother inside the restaurant, he observed IPC Public Safety Officer (PSO) Thomas Haines driving by and waved to him. Believing Plaintiff to be banned from the Berkshire Mall, PSO Haines requested assistance from another PSO, Andy McAfee, to confirm Plaintiff's identity. After McAfee confirmed Plaintiff's identity, Haines contacted the Mall Security Office in order to obtain a copy of the Defiant Trespass Notice and the Wyomissing Police Department for assistance. Officer Phillips arrived shortly and pulled up behind Plaintiff in a marked police car. Here the parties' accounts diverge.

  According to Plaintiff, both he and Officer Phillips got out of their cars. Officer Phillips Page 3 then notified Plaintiff that he was not permitted to be there. Plaintiff responded that he had not received any such notice, that he worked at the Old Country Buffet, and that he was picking up his daughter's mother there. Officer Phillips then approached Plaintiff and told him to get against the car because he was under arrest. He then grabbed Plaintiff and threw him against Plaintiff's car so hard it caused Plaintiff to bounce off the car. At that point, Officer Phillips yanked Plaintiff's wrists back and handcuffed him. Plaintiff alleges that he was not resisting the arrest and went into custody easily. However, at some point, he lost his balance and fell to the ground, causing him to say, "My back," to Officer Phillips. Officer Phillips then grabbed Plaintiff by the handcuffs and yanked him up, ordering him to stop resisting. Next Officer Phillips brought Plaintiff over to the police car, where he again slammed him against the car before putting him in the back seat. During this time, Plaintiff repeatedly called out for his daughter and her mother and asked Officer Phillips if he could go calm his daughter down, who was, by that time, in front of the restaurant.

  Defendants' allege a different set of facts regarding what took place upon Officer Phillips' arrival at Berkshire Mall West. Defendants state that Officer Phillips was immediately informed by McAfee that Plaintiff had been banned from mall property. Officer Phillips then pulled his car up behind Plaintiff without turning the emergency lights on. At that moment, Plaintiff got out of his car and began walking towards Officer Phillips, yelling something to the effect of "What are you doing here, why are you bothering me, why are you harassing me?" Officer Phillips also got out of the car and asked Plaintiff to calm down and informed him that he was there to investigate because Plaintiff had been banned from mall property. Plaintiff, however, continued to scream and use profanities, and assumed a combative stance toward Page 4 Officer Phillips by putting his right foot back and bringing his arms up to his chest. As Plaintiff came within a couple of inches of Officer Phillips, Officer Phillips decided to arrest him for disorderly conduct. He then advised Plaintiff that he was placing him under arrest, turned Plaintiff around, and handcuffed him. Phillips later testified that he was at that moment arresting Plaintiff for disorderly conduct. Although Plaintiff did not resist being handcuffed, when Officer Phillips attempted to walk him to the police car, Plaintiff resisted walking by trying to push backwards and made statements such as, "I wish you could take these fucking cuffs off me, and I'll take care of you." Once they reached the police car, Officer Phillips placed him in the back.

  It is undisputed that after Plaintiff was placed in the police car, PSO MacAfee informed Officer Phillips that the Mall Security Office could not confirm that Plaintiff had received the Defiant Trespass Notice. Consequently, Officer Phillips only issued a citation for disorderly conduct, which Plaintiff signed with a not guilty plea, and released him.

  II. Standard of Review

  The court shall render summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Fed.R.Civ.P. 56(c). An issue is "genuine" only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). A factual dispute is "material" only if it might affect the outcome of the suit under governing law. Id. at 248. All inferences must be drawn and all doubts resolved, in favor of the non-moving party. See United States v. Diebold, Inc., 369 U.S. 654, 655 (1962); Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985). Page 5

  On a motion for summary judgment, the moving party bears the initial burden of identifying those portions of the record that it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To defeat summary judgment, the non-moving party must respond with facts of record that contradict the facts identified by the movant and may not rest on mere denials. Id. at 321 n. 3 (quoting Fed.R.Civ.P. 56(e)). See First Nat'l. Bank of Pa. v. Lincoln Nat'l. Life Ins. Co., 824 F.2d 277, 282 (3d Cir. 1987). The non-moving party must demonstrate the existence of evidence that would support a jury finding in its favor. See Anderson, 477 U.S. at 248-49.

  III. Discussion

 a. Defendants' Wyomissing, Officer Phillips, and Police Chief Jeffery Biehl's Motion for Summary Judgment as to Plaintiff's § 1983 Claims

  Defendants Wyomissing, Officer Phillips, and Police Chief Biehl move for summary judgment with regard to Plaintiff's § 1983 claims. Since the parties have stipulated and agreed that Wyomissing and Police Chief Biehl are dismissed from this lawsuit, we will dismiss Defendants' motion as to Wyomissing and Police Chief Biehl as moot and decide this motion only as to the claim against Officer Phillips (Count VIII). In Count VIII, Plaintiff alleges that Officer Phillips used excessive force in arresting him in violation of his Fourth, Fifth, and Fourteenth Amendment rights. However, "a claim for excessive force `should be analyzed under the Fourth Amendment and its `reasonableness standard,' rather than a `substantive due process approach.'" DeBellis v. Kulp, 166 F. Supp.2d 255, 271 (E.D. Pa. 2001), citing Graham v. Connor, 490 U.S. 386, 395 (1989). In deciding whether excessive force was used, courts must balance "`the nature and quality of the intrusion on the individual's Fourth Amendment interests' Page 6 against the countervailing governmental interests at stake." Id., quoting Tennessee v. Garner, 471 U.S. 1, 8 (1985). The inquiry is an objective one, which asks whether the police officer's actions were "`objectively reasonable' in light of the facts and circumstances confronting ...

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