The opinion of the court was delivered by: (Judge Conner)
Plaintiff Jerry L. Albert brings claims under 42 U.S.C. § 1983 and state law against defendants Jeffrey W. Weaver and Richard Hiester, police officers with the Middletown Borough Police Department. Defendants have moved for summary judgment on all counts. (Doc. 19.) The motion has been fully briefed and is ripe for disposition. For the reasons that follow, the motion will be granted in part and denied in part.
Albert filed the instant suit on November 16, 2005, asserting that defendants Weaver and Hiester violated his constitutional rights to be free from malicious and retaliatory prosecutions and the use of excessive force, as well as his state-law right to be free from assault and battery. (Doc. 1.)
The events underlying Albert's claims began in February 2004, when Officer Weaver was investigating an incident of institutional vandalism and trespassing at a local middle school in Middletown, Pennsylvania. (Doc. 18 ¶ 1.) One of the suspects believed to have been involved was Gregory Albert, plaintiff's juvenile son. (Id.) On February 26, 2004, Weaver called Gregory and his mother, Patricia Waite, plaintiff's ex-wife, to the Middletown Borough Police Department to explain the middle school's allegations and the police investigation process. (Id. ¶¶ 1-2.) Although he was not under arrest at the time, Gregory and his mother were advised of his rights under the law. (Id. ¶ 3.)
Near the beginning of the meeting between Weaver, Gregory, and Ms. Waite, plaintiff Jerry Albert was contacted and asked to come to the station to participate in the discussion. (Id. ¶ 4.) Albert arrived at the station shortly thereafter, identified himself to the dispatcher, and explained that he was there to speak with Officer Weaver. (Id. ¶ 5; Pl's Dep. 44-45.) When Weaver introduced himself, Albert claims to have used his left hand to shake hands and to have explained to Weaver that he recently had surgery on his right arm, limiting its usage. (See Pl's Dep. 44-45; Doc. 30 ¶ 4; Doc. 18 ¶ 12.)
Officer Weaver directed Albert to the small interview room where Gregory and Ms. Waite were sitting on the side of the interview desk near the door. (Doc. 18 ¶ 5; Decl. of Gregory Albert at 1.) Without offering Albert a chair, Officer Weaver returned to his seat on the other side of the desk while Albert remained standing with his back to the closed office door facing Weaver. (Doc. 30 ¶ 5; Decl. of Gregory Albert at 1; Pl's Dep. 48-49.) Albert described Weaver as being "excessively agitated during this interaction due to his having worked a 16-hour shift." (Doc. 30 ¶ 5.) While Weaver was discussing the investigation, Albert raised some questions that were not answered to his satisfaction, and soon the conversation escalated into an argument between the two men. (Doc. 18 ¶ 7; Doc 30 ¶ 7.) Although the parties dispute the manner in which it happened, they agree that Weaver got up from his seat, approached Albert, and informed him that the meeting was over and that Albert needed to leave the police station.*fn1 (Docs. 18 & 30 ¶ 8.) After Weaver opened the interview room door, he and Albert moved their heated discussion into the hallway, where other officers, including defendant Hiester, had gathered because of the commotion. (See Weaver Dep. 28-29; Hiester Dep. 23-24, 31; Pl's Dep. 60-63; see also Decl. of Gregory Albert at 1-2; Doc. 18, Ex. 3 at 25.)
Defendants claim Albert was asked to leave the premises on several occasions by Weaver and another Middletown Borough police officer who was in the hallway.*fn2 (Doc. 18 ¶ 10; Doc. 18, Ex. 3, at 42.) When Albert did not immediately comply with the request to leave, defendants Weaver and Hiester, on Albert's right and left, respectively (Pl's Dep. 64), "each grabbed one of Plaintiff's arms, cupped their hands under each of Plaintiff's elbows, lifted him off the ground, and carried him down the hallway to the doorway to the police station, whereupon they pushed him out of the door." (Doc. 18 ¶ 11.)*fn3 The parties dispute whether Albert cried out in pain when being escorted from the property and whether he mentioned or exhibited other outward signs of his recent surgery. (Docs. 18 & 30 ¶¶ 13-14.) Albert claims that the force used to remove him from the police precinct caused a "permanent exacerbation" to his right arm where he had underwent surgery. (Docs. 18 & 30 ¶ 23.)
After Albert was escorted from the police station, Weaver returned to the interview room to conclude his conversation with Gregory Albert and Ms. Waite (Doc. 18 ¶ 16), and Hiester returned to his desk, where he claims to have started drafting an incident report and citation for defiant trespass based on Albert's conduct (id. ¶ 15). Meanwhile, in the parking lot of the precinct, Albert telephoned the Pennsylvania State Police, claiming that he had been assaulted by Middletown Borough police officers. (Id. ¶ 18.)
After receiving Albert's call, the Pennsylvania State Police telephoned the Middletown Borough Police Department to inform the officers of Albert's accusations. (Id. ¶ 19.) Hiester, who was the shift commander on duty, went to the parking lot and advised Albert that, should he choose to pursue his allegations of assault against the officers, he was to contact the Middletown Borough Chief of Police, who was not at the station at that time. (Id. ¶ 20.)*fn4 Hiester once again insisted that Albert leave the premises. (Id. ¶ 21.)
Following this conversation, Hiester returned to his desk and completed an incident report and the citation for the summary offense of defiant trespass. (Id. ¶ 22); (see Hiester Dep. 65-66, 69-73); see also Commonwealth v. Albert, No. 1072 MDA 2004, at 6 (Pa. Super. Ct. June 10, 2005) (explaining that a defiant trespass occurs "when a person remains in a place where he is not privileged to remain after notice of trespass is given") (citation omitted). Although Albert initially paid the fine for defiant trespass, he later appealed the citation. (Doc. 18 ¶¶ 24-25.) On May 6, 2004, Judge Todd A. Hoover of the Dauphin County Court of Common Pleas held a summary trial, during which Albert, Hiester, Weaver, Gregory Albert, and Ms. Waite gave testimony. (Id. ¶ 26.) Following the summary trial, Judge Hoover determined that Albert was guilty of defiant trespass (id. ¶ 27), a decision that Albert successfully appealed to the Pennsylvania Superior Court (id. ¶¶ 28-29).
In reversing Albert's conviction for defiant trespass, the superior court explained that, although Albert had "been instructed to leave the premises on at least three occasions before [he] exited the station," Albert was not explicitly "placed on notice that he was trespassing or that he may be arrested for defiant trespass." Albert, No. 1072 MDA 2004, at 6-7.*fn5 The superior court also commented upon the limited duration of the March 26, 2004, incident, explaining "while no reported decision in Pennsylvania had dealt directly with the amount of time a person has to retreat after notice of trespass has been given, we find, in this instance, that [Albert's] retreat from the premises within one minute of the first request to leave, regardless of his demeanor in leaving, equates with compliance and not defiance." Id. at 7.
Based on these events, Albert contends that defendants Weaver and Hiester:
(1) maliciously prosecuted him in violation of the Fourth Amendment; (2) retaliated against him for engaging in protected First Amendment activity; (3) used excessive force against him in violation of the Fourth Amendment; and (4) assaulted and battered him in violation of state tort law. (Doc. 1.) Defendants argue that they are entitled to summary judgment on all counts because Albert will not be able to establish the elements of ...