The opinion of the court was delivered by: (judge Caputo)
Presently before the Court is Defendant's Motion for Summary Judgment (Doc. 15), Plaintiff's brief in opposition (Doc. 29), Defendant's reply brief (Doc. 26) and Defendant's supplemental brief (Doc. 29). For the reasons set forth below, Defendant Paul Gasper's Motion for Summary Judgment will be granted in part and denied in part. The Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331, 1332, 1367.
On September 10, 1998, as a member of a specialized response team in the Stroudsburg Borough Police Department, Gasper participated in the execution of a search warrant on Apartment 85A, Analomink Street, Stroudsburg, Pennsylvania. (Doc. 24 at ¶¶ 1-3.) The raid occurred around six (6) a.m.. (Doc.17 at ¶ 19.) When Gasper entered the apartment and then the bedroom, he saw a few people as well as a dog. (Id. at ¶ 19.) Gasper told the woman in the room to control the dog. (Id. at ¶ 27.) Gasper then shot the dog. (Id. at ¶ 19.) At that time, Daniel, who was ten (10) years old at the time, was struck in the right foot and leg by four pellets . (Id. at ¶ 35.)
On December 20, 2004, Plaintiff Roberta Fulks, as guardian of Jimmy Lee Daniel, a minor, filed a Complaint against Defendant Gasper. (Doc.1.) In her Complaint, Fulks brings three claims against Gasper, on behalf of Daniels, for (1) excessive force (2) substantive due process and (3) battery. On December 30, 2005, Gasper filed a Motion for Summary Judgment. Both parties filed their briefs and the matter is now ripe for disposition.
Summary judgment is appropriate 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). A fact is material if proof of its existence or non-existence might affect the outcome of the suit under the applicable substantive law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Where there is no material fact in dispute, the moving party need only establish that it is entitled to judgment as a matter of law. Where, however, there is a disputed issue of material fact, summary judgment is appropriate only if the factual dispute is not a genuine one. See id. at 248. An issue of material fact is genuine if "a reasonable jury could return a verdict for the nonmoving party." See id.
Where there is a material fact in dispute, the moving party has the initial burden of proving that 1) there is no genuine issue of material fact and 2) she is entitled to judgment as a matter of law. See CHARLES ALAN WRIGHT & ARTHURR. MILLER, FEDERALPRACTICE AND PROCEDURE: CIVIL2D § 2727 (2d Ed. 1983). The moving party may present its own evidence or, where the nonmoving party has the burden of proof, simply point out to the court that "the nonmoving party has failed to make a sufficient showing of an essential element of her case." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party, and the entire record must be examined in the light most favorable to the nonmoving party. See White v. Westinghouse Elec. Co., 862 F.2d 56, 59 (3d Cir. 1988). Once the moving party has satisfied its initial burden, the burden shifts to the nonmoving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party's contention that the facts entitle it to judgment as a matter of law. See Anderson, 477 U.S. at 256-257. The court need not accept mere conclusory allegations or denials taken from the pleadings. See Schoch v. First Fidelity Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). In deciding a motion for summary judgment, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
1. Count I: Excessive Force
Fulks alleges that during the raid, Gasper entered the apartment wearing a black hood covering his face and carrying a shotgun. (Doc.1 at ¶ 7.) Fulks further alleges that Gasper arrested and detained all occupants in the house and discharged his shotgun in the direction of Daniel. (Id. at ¶¶ 8-9.) According to Fulks, as a result of this unjustifiable use of excessive deadly force (Id. at ¶ 10), Daniel suffers from pellet wounds (Id. at ¶ 11). Despite the surgery to remove the pellets, two (2) pellets remain embedded in his right foot. (Id.)
"To state a claim for excessive force as an unreasonable seizure under the Fourth Amendment, a plaintiff must show that a 'seizure' occurred and that it was unreasonable." Estate of Smith, 318 F.3d 497, 515 (3d Cir. 2003) (quoting Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999)). Gasper moves for summary judgment on this claim because he argues that there was no seizure. (Doc. 16 at 5.) He contends that he intended to shoot the dog and as an unintended consequence, Daniel was hit by the pellets. (Id.) According to Gasper, there was no seizure of Daniel. He argues that the Court must look only to the use of the force, namely the shooting and determine whether that constitutes a seizure. (Doc. 26 at 2.) Fulks, on the other hand, argues that seizure occurred when Gasper entered the house. (Doc. 23-1 at 2.) The Court agrees with Plaintiff.
The Supreme Court has defined a seizure in general terms as occurring when "by means of physical force or show of authority, [a person's] freedom of movement is restrained." United States v. Mendenhall, 446 U.S. 544, 553 (1980); see also California v. Hodari D., 499 U.S. 621, 625-27 (1991); County of Sacramento v. Lewis, 523 U.S. 833, 844 (1998). The Court went on to establish the test for when a seizure occurs: "We conclude that a person has been 'seized' within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that [s]he was not free to leave." Mendenhall,446 U.S.at 554. In determining whether a seizure has occurred, the Supreme Court advised courts to look at circumstances such as "the threatening presence of several officers, the ...