The opinion of the court was delivered by: Stengel, J.
This is a counseled civil rights action stemming from an incident which occurred during the arrest of Jermaine Herring in Chester, Delaware County, Pennsylvania. The defendants have filed a motion for summary judgment to which the plaintiff has responded. For the reasons that follow, I will grant the motion in its entirety.
On October 20, 2005, at approximately 7:30 p.m., police officers from the Delaware County Criminal Investigation Division and the Drug Task Force began to execute a valid search warrant at 1302 Honan Street in Chester, Pennsylvania, a vacant property owned by the plaintiff.*fn1 Compl. ¶¶ 12, 13. Mr. Herring had been performing maintenance at a nearby residence, and went to 1302 Honan Street to pick up parts for a water heater. See Herring Dep. at 83-85, 87-91. When he entered the property, it was dark except for the police officer's flashlights. He heard someone say "Police,"*fn2 and he was grabbed by police officers, placed in handcuffs, and was struck with blunt objects four or five times about the face, head, and body. Id. at 96, 98-99, 101, 103-105. He did not see the officer who was striking him, but testified that there were possibly twenty (20) police officers present. Id. at 106, 107, 109, 112, 113. Mr. Herring insists that he gave the officers no reason to think that he would resist them. Nevertheless, he was arrested and charged with simple and aggravated assault, resisting arrest, and possession with intent to deliver cocaine. Mr. Herring was taken to the hospital and treated for various injuries, including abrasions to the face, a fractured jaw, dislocated teeth, and excruciating face and neck pain. Id. at 116, 117. Prior to trial, the assault and resisting arrest charges were withdrawn by the prosecutor. He was convicted of the drug charges and is currently serving a sentence in state prison.
The plaintiff filed a complaint in this court against Delaware County, its Criminal Investigation Division, its Drug Task Force, Detective John Newell, and "various unarmed members of the Delaware County Drug Task Force,"*fn3 alleging excessive force (Count I); false arrest (Count II); illegal customs, policies, practices (Count III); negligence (Count IV); assault (Count V); battery (Count VI); intentional infliction of emotional distress (Count VII); and the denial of equal protection of law (Count VIII). I dismissed the Delaware County Criminal Investigation Division and its Drug Task Force as defendants in this action, and dismissed Counts IV and VIII. See Herring v. Delaware County, et al., 2007 U.S. Dist. LEXIS 92993 (E.D. Pa. December 18, 2007).
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 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 Corp. v. Catrett, 477 U.S. at 322. Under Rule 56, the court must view the evidence presented on the motion in the light most favorable to the opposing party. Anderson v. Liberty Lobby, Inc., 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 exceeded the mere scintilla of evidence threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
A. Counts I, II, V, VI, and VII
Five of the remaining six counts in this complaint allege charges against the "individual defendants." Detective John Newell, however, is the sole remaining individual defendant. He is being sued in both his individual and official capacities. The defendants argue that Mr. Herring's claims of Excessive Force (Count I), False Arrest (Count II), Assault (Count V), Battery (Count VI), and the Intentional Infliction of Emotional Distress (Count VII) must be dismissed because Mr. Herring has failed to establish that Defendant Newell was the individual who assaulted him on October 20, 2005. I agree.
All of these claims against Defendant Newell require competent and admissible evidence that he committed the alleged acts against Mr. Herring on the evening in question. For example, in order for Mr. Herring to establish a claim for Excessive Force under the Fourth Amendment, he must establish that Detective Newell used force which was objectively unreasonable. Graham v. Connor, 490 U.S. 386, 388 (1989).
Mr. Herring has produced no competent and admissible evidence that it was Detective Newell who committed any act of force against him. At his deposition, Mr. Herring testified that after he was released from the hospital following the assault, he spoke with Police Officer William Murphy, a Chester City Police Officer who patrols his neighborhood, to inquire about what had happened to him on the night of his arrest. Id. at 123-126. Officer Murphy allegedly placed a call to someone on his "two-way," and informed Mr. ...