The opinion of the court was delivered by: John R. Padova, J.
Plaintiff Hector Plaza-Bonilla ("Plaintiff") brought this action asserting claims pursuant to 42 U.S.C. § 1983 and Pennsylvania common law against Defendants Christopher Cortazzo ("Cortazzo") and James Burkhart ("Burkhart"), both officers in the Reading Police Department.*fn1 Plaintiff alleges that Defendants used excessive force and committed assault and battery against him when they shot him as he attempted to flee arrest. Defendants assert counterclaims in recoupment, alleging that Plaintiff committed assault and battery against them when he struck them with a vehicle in his attempt to flee. Presently before the Court are Plaintiff's and Defendants' respective Motions for Summary Judgment. For the reasons stated below, we grant Defendants' Motion in part and deny it in part, and deny Plaintiff's Motion in its entirety.
The undisputed facts are as follows. At around 7:00 p.m. on July 12, 2005, Cortazzo conducted a traffic stop of a car that had been illegally double parked in front of a known drug house near the corner of Greenwich and Locust Streets in Reading. (Defs.' SMF ¶¶ 1, 2.) Burkhart was dispatched to provide backup. (Id. ¶ 4.) Inside the vehicle were the driver, Jeremy Pauley ("Pauley"), and Plaintiff. (Id. ¶ 3.)
When Cortazzo asked Plaintiff for his identification, Plaintiff gave Cortazzo a false name because he was in violation of his parole and did not want to be arrested. (Id. ¶ 7.) Cortazzo was unable to confirm Plaintiff's identity based on the information provided (id. ¶ 8), and stated that he could have arrested Plaintiff for a misdemeanor on that basis. (Cortazzo Dep. at 43-44, 46.) Nevertheless, Cortazzo did not arrest Plaintiff, but he did pat him down for weapons, finding none. (Id. at 55; Cortazzo Narrative, Defs.' Ex. B, at 22.) Plaintiff then called his mother to ask her to bring some identification to the scene. (Plaza-Bonilla Dep. at 137-38; Burkhart Narrative, Defs.' Ex. E, at 25; Pauley Stmt., Pl.'s Ex. G, at 2.)
Cortazzo then ordered Pauley out of the car and had a conversation with him behind the car. (Defs.' SMF ¶ 10.) Cortazzo told Pauley that he was free to go, but that he was suspicious of Plaintiff. (Cortazzo Narrative, Defs.' Ex. B, at 23; Pauley Stmt., Pl.'s Ex. G, at 2; Cortazzo Dep. at 47, 51-52.) Pauley informed Cortazzo that Plaintiff's real name was "Ivancito." (Pauley Stmt., Pl.'s Ex. G, at 2.) Pauley also gave Cortazzo permission to search the car. (Defs.' SMF ¶ 10.) Pauley told Cortazzo that he would find cash that belonged to him in-between the console and seats. (Plaza-Bonilla Dep. at 147-48; Cortazzo Dep. at 48; Burkhart Dep. at 82; Cortazzo Narrative, Defs.' Ex. B, at 23.)
Cortazzo began to search the driver's compartment while Plaintiff remained seated in the passenger seat and while the car remained running. (Defs.' SMF ¶ 11.) Cortazzo noticed a strong odor of alcohol on Plaintiff's breath and became concerned by Plaintiff's nervousness and his attempts to reach between the seats where a weapon could be concealed. (Id. ¶ 12.) Plaintiff was trying to help Cortazzo find Pauley's money, but Cortazzo told him not to move. (Dep Tr. Plaza- Bonilla at 147-48; Cortazzo Dep. at 60.) Cortazzo finished searching the driver's compartment, closed the driver's side door, and walked in front of the vehicle on his way to searching the passenger's side. (Defs.' SMF ¶ 13.) Plaintiff then locked the doors. (Id. ¶ 14; Plaza-Bonilla Dep. at 150-51.)
As Cortazzo walked in front of the car, Plaintiff jumped into the driver's seat and put the car into gear. (Defs.' SMF ¶¶ 14, 16.) Plaintiff wanted to get away because he did not want to get arrested for violating his parole. (Id. ¶ 14.) At that time, Burkhart and Pauley were behind the car. (Burkhart Dep. at 82, 92; Burkhart Narrative, Defs.' Ex. E, at 26.) As Plaintiff pulled forward, he struck the vehicle parked in front of him.*fn2 (Defs.' SMF ¶ 16.) Plaintiff then put the car in reverse before again pulling forward and out of the parking space. (Plaza-Bonilla Dep. at 155-56.) Plaintiff struck both officers with the car.*fn3 (Defs.' SMF ¶¶ 21, 29; see also Pl.'s Exs. H, J.)
At some point thereafter, Cortazzo and Burkhart discharged their firearms at Plaintiff. Cortazzo fired one shot, which passed through both the passenger's side window and Plaintiff's left arm before lodging itself in the driver's side door. (Id. ¶¶ 22, 27). Burkhart fired three shots, none of which struck the Plaintiff. (Id. ¶¶ 30, 33.) Although the parties dispute where Cortazzo was standing and when exactly during this sequence of events he discharged his firearm, viewing the facts in the light most favorable to Plaintiff establishes that Cortazzo did not shoot at Plaintiff until after he was out of the vehicle's direct path, i.e., Cortazzo fired after he was off to the side of the car as Plaintiff was pulling out into the street. (See Burkhart Dep. at 121 (indicating that Cortazzo discharged his weapon after he got hit and was on the curb); Burkhart Narrative, Defs.' Ex. E, at 26 (indicating that Cortazzo drew his gun and fired while Plaintiff was backing up into Burkhart); Plaza-Bonilla Dep. at 171, 174 (indicating that it was not until Plaintiff was pulling out of the parking spot onto the street that he realized Defendants were shooting at him); Pauley Stmt., Pl.'s Ex. G, at 2 (indicating that it was not until Plaintiff took off down Greenwich Street that Defendants fired at him)*fn4 ; Plaintiff's Expert Report, Pl.'s Ex. F, at 6 (finding that the bullet damage and probable trajectory suggested that Cortazzo could have fired the shot from the area between the front passenger's side quarter panel and the front passenger's side door).)
After the shooting, Plaintiff continued to drive down the street and around the corner. (Id. ¶ 34.) Plaintiff crashed the car and began to flee on foot. (Id. ¶ 36.) Both Defendants then gave chase, also on foot. (Cortazzo Dep. at 96, 99; Cortazzo Narrative, Defs.' Ex. B, at 23; Burkhart Dep. at 153-54; Burkhart Narrative, Defs.' Ex. E, at 26.) Ultimately, another officer pursuing Plaintiff found him hiding under a bed inside a nearby house and took him into custody. (Defs.' SMF ¶¶ 36, 38.)
Both Cortazzo and Burkhart received treatment for minor bruising and abrasions at St. Joseph Hospital. (Id. ¶¶ 28, 32.) Hospital records show that Cortazzo complained of mild pain and suffered abrasions in the area of his right hip, but walked out of the hospital on his own. (Defs.' Ex. I at 2, 3-4, 5.) He was directed to take Tylenol or Motrin for pain. (Id. at 7.) Burkhart's hospital records show that he complained of mild pain and soft-tissue tenderness in the area of his left thigh, diagnosed as a contusion. (Defs.' Ex. K at 2-3.) Burkhart rated his pain level upon discharge as a "0" out of 10 and, like Cortazzo, walked out of the hospital on his own. (Id. at 5.)
Plaintiff received treatment for the gunshot wound from St. Joseph Hospital on the night of the shooting and from Berks County Prison for about a month thereafter. (See Plaza-Bonilla Dep. at 248-51.) Plaintiff said that he suffered from residual physical pain for two months, numbness in his left hand, and a scar. (Id. at 172, 250-51, 279.) Plaintiff also testified that he now suffers from nightmares, insomnia, and mental trauma as a result of the shooting. (Id. at 206, 244-45, 251-52, 279.)
Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). An issue is "genuine" if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" if it might affect the outcome of the case under governing law. Id.
A party seeking summary judgment always bears the initial responsibility for informing the district court of the basis for its motion and 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, 322 (1986). Where the non-moving party bears the burden of proof on a particular issue at trial, the movant's initial Celotex burden can be met simply by "pointing out to the district court that there is an absence of evidence to support the non-moving party's case." Id. at 325. After the moving party has met its initial burden, "the adverse party's response, by affidavits or otherwise as provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). That is, summary judgment is appropriate if the non-moving party fails to rebut by making a factual showing "sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. In evaluating the evidence, we take the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Morton Int'l, Inc. v. A.E. Staley Mfg. Co., 343 F.3d 669, 680 (3d Cir. 2003). "Speculation, conclusory allegations, and mere denials are insufficient to raise genuine issues of material fact." Boykins v. Lucent Techs., Inc., 78 F. Supp. 2d 402, 407 (E.D. Pa. 2000). Indeed, evidence introduced to defeat or support a motion for summary judgment must be capable of being admissible at trial. Callahan v. AEV, Inc., 182 F.3d 237, 252 n.11 (3d Cir. 1999) (citing Petruzzi's IGA Supermarkets, Inc. v. Darling-Delaware Co., 998 F.2d 1224, 1234 n.9 (3d Cir. 1993)).
A. Plaintiff's § 1983 Excessive Force Claim*fn5
Defendants both move for summary judgment with respect to Plaintiff's excessive force claim. For the following reasons, we grant Burkhart summary judgment but deny summary judgment for Cortazzo.
To state a claim of excessive force under the Fourth Amendment, a plaintiff must establish "that a 'seizure' occurred and that [such seizure] was unreasonable." Abraham v. Raso, 183 F.3d 279, 288 (3d Cir. 1999) (citing Brower v. County of Inyo, 489 U.S. 593, 599 (1989)). Even if Defendants used excessive force, they would be entitled to qualified immunity, and thus immunity from suit, if "the right that was violated was [not] clearly established, or, in other words, 'whether it would [not] be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.'" Curley v. Klem, 499 F.3d 199, 207 (3d Cir. ...