The opinion of the court was delivered by: Stengel, J.
Errick Phillips, a state prisoner incarcerated at SCI-Retreat, has brought a Section 1983 action*fn1 against the officers who arrested him. He alleges violations of his First, Fourth, Eighth, and Fourteenth Amendment rights; malicious prosecution; fraud; conspiracy; gross negligence; racial profiling; racial discrimination; and cruel and unusual punishment. (Compl. at 8.) Mr. Phillips has moved for summary judgment. (See Pl.'s Mem. (Document #20).) After careful consideration of the parties' memoranda, I will deny the motion.
On the morning of October 23, 2006, Mr. Phillips was in the vicinity of 19th and Allen Streets in Allentown, Pennsylvania. Around 9 a.m., Mr. Chris Gabellini, a local business owner and member of the neighborhood crime watch, called the Allentown Police Department regarding two suspicious individuals. He had observed them walking up and down the block several times and looking into store fronts and parked cars; in particular, he noted that they were looking into a red GMC SUV. One was described as wearing a brown hood, jeans, and black and white sneakers. This individual would later be identified as Errick Phillips.
The first responding officer was Allentown Police Officer Tony Alsleben. Officer Alsleben knew Mr. Gabellini and was aware that he was a member of the neighborhood crime watch. When he arrived on the scene, Officer Alsleben observed three individuals standing on the sidewalk by a red SUV. He recognized one individual from Mr. Gabellini's description as wearing a brown hood, blue jeans, and white sneakers.
Officer Alsleben parked his car some unspecified distance away from the individuals and began walking toward them. As the officer approached, the individual who would later be identified as Mr. Phillips began to walk away; the other two did not move. Officer Alsleben noticed that Mr. Phillips was holding an item to which a cord was attached. It would later be identified as a laptop.
Officer Alsleben asked Mr. Phillips to stop. Mr. Phillips' response was to quicken his pace. Allegedly fearing for his safety, he eventually broke into a run while repeatedly saying, "I didn't do anything wrong." Though Officer Alsleben gave chase, he lost sight of Mr. Phillips, who had started to run through the backyards of the neighborhood homes.
By this point, several other officers had come to assist: Officers Kevin Kennedy, Craig Koppel, Tony Sube, and Deputy Sheriff Eric Kester. While searching the area, Deputy Kester found Mr. Phillips lying in the fetal position beneath a car. Deputy Kester ordered Mr. Phillips to come out. Mr. Phillips again tried to run but Deputy Kester was able to grab hold of his arm. Mr. Phillips continued to struggle. Officer Alsleben then ran over to assist and grab hold of Mr. Phillips' other arm. At approximately the same time, the other officers arrived.
A struggle ensued and the officers took Mr. Phillips to the ground. Mr. Phillips continued to struggle by kicking his legs and flailing his arms. The officers finally subdued and handcuffed Mr. Phillips. Officer Alsleben then found Mr. Phillips' jacket and laptop in the backyard of one of the local houses. The jacket was found to contain a glass pipe used for smoking crack cocaine.
After Mr. Phillips was in custody, Officer Alsleben noticed that Deputy Kester had blood on his face; Officer Alsleben believed Mr. Phillips was responsible even though he did not directly observe Mr. Phillips strike the deputy. Officer Kennedy was treated for a chipped tooth and sustained a bruise to the area around his eye. Mr. Phillips suffered abrasions to his face and lost a tooth; he has also complained that three other teeth were severely loosened.
Officer Alsleben was the criminal prosecutor for the charges against Mr. Phillips. He filed two charges of simple assault*fn2 and two charges of aggravated assault*fn3 for the injuries Deputy Kester and Officer Kennedy sustained. He also charged Mr. Phillips with resisting arrest,*fn4 criminal trespass,*fn5 disorderly conduct,*fn6 and possession of drug paraphernalia.*fn7 He was not charged for any actions occurring before Officer Alsleben had arrived. On July 20, 2007, the trial court considered Mr. Phillips' Motion for Writ of Habeas Corpus and dismissed both aggravated assault charges and one simple assault charge.
The trial was held on September 5, 2007. The jury returned its verdict on September 6, 2007, finding Mr. Phillips guilty of resisting arrest and possession of drug paraphernalia. He was acquitted of the disorderly conduct, simple assault, and criminal trespass charges. Mr. Phillips was sentenced on October 30, 2007, to a term of nine to twenty-four months for the resisting arrest charge and a concurrent twelve month term for the possession charge.
On May 6, 2008, Mr. Phillips filed this Section 1983 complaint, which presents a parade of legal claims ranging from unlawful arrest to fraud to First Amendment violations. (See Compl. at 8.) Mr. Phillips' motion for summary judgment refines these claims. Viewing the complaint in tandem with the summary judgment memorandum, I understand Mr. Phillips to be presenting claims for (1) Malicious prosecution; (2) Unlawful arrest; (3) Racial discrimination and profiling; (4) Use of excessive force; and (5) Intentional infliction of emotional distress.
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" when a reasonable jury could return a verdict for the non-moving party based on the evidence in the record.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is "material" when it could affect the outcome of the case under the governing law. Id.
A party seeking summary judgment initially bears responsibility for informing the 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 moving party's initial Celotex burden can be met simply by demonstrating "to the district court that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. 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). Summary judgment is therefore appropriate when the non-moving party fails to rebut by making a factual showing that is "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.
Under Rule 56 of the Federal Rules of Civil Procedure, the court must view the evidence in the record in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Anderson, 477 U.S. at 255. The court must decide not whether the evidence unmistakably favors one side or the other, but whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Id. at 252. If the non-moving party has produced more than a "mere scintilla of evidence" demonstrating a genuine issue of material fact, then the court may not credit the moving party's version of events against the opponent, ...