The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge
MEMORANDUM OPINION AND ORDER
Presently before the Court is DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, with brief in support, filed by police officer Edward Carter, Jr. (Document Nos. 19 and 20). Defendant also filed a Concise Statement of Material Facts with supporting exhibits (Document No. 21). Plaintiff, Matthew Yurisic, has filed a brief in opposition, a responsive concise statement of material facts and several exhibits (Document Nos. 27 and 28). The Court notes that Defendant attached only a few brief excerpts from Mr. Yurisic's deposition, while Plaintiff has provided the entire transcript.
The issues have been fully briefed and the motion is ripe for disposition. After a careful consideration of the motion, the filings in support and opposition thereto, the relevant case law, and the record as a whole, the Court concludes that the motion for summary judgment will be denied.
FACTUAL AND PROCEDURAL BACKGROUND
In resolving a motion for summary judgment, a court must draw all reasonable inferences in favor of the non-moving party. Similarly, the first step in evaluating a claim of qualified immunity is to "determine whether the facts, taken in the light most favorable to the plaintiff, show a constitutional violation." Bennett v. Murphy, 274 F.3d 133, 136 (3d Cir. 2002). Accordingly, where the underlying facts are disputed, the factual background will be based upon the events as set forth in Plaintiff's Responsive Concise Statement of Material Facts.
The incident which gave rise to this lawsuit occurred on May 12, 2007 at approximately 8:00 a.m. Yurisic was 85 years old at the time of the incident. There had been a recent water main break on Water Street in the Borough of Greenville, Pennsylvania, although the street was not yet barricaded to traffic. Yurisic drove his truck through a puddle and into an unexpected sinkhole that had formed as a result of the water main break. Several employees from the Greenville Borough Water Department arrived on the scene and determined that it was necessary to remove Yurisic's vehicle from the sinkhole, as water was pouring out and the situation was becoming increasingly dangerous. It was also necessary for Yurisic to move away from the area. Officer Carter also arrived on the scene. The police station is located approximately 20-30 feet from the location of the sinkhole.
The parties' respective versions of events differ substantially. Carter, in essence, avers as follows: he offered to help Yurisic and asked him several times to exit his vehicle; Yurisic rejected his offers of assistance, refused to exit the vehicle, became belligerent, used obscene language, grabbed the officer's wrist, and struck the officer in the abdomen; Carter then used the minimum amount of force necessary to remove Yurisic from the truck, for his own safety, and escort him to the police station. Yurisic was detained for 10-20 minutes to obtain his identification and issue a citation for disorderly conduct. Thereafter, Carter offered to drive Yurisic to the hospital and when he refused, personally drove Yurisic home. En route, Carter informed Yurisic's son, Michael, of the incident and expressed concern. The charge against Yurisic was voluntarily dismissed.
Yurisic disputes important aspects of this account. Yurisic testified in his deposition that by the time Officer Carter arrived, he had already exited the truck, walked out of the puddle onto dry pavement, and was trying to call his son, Rick, to tow his truck. Yurisic also contends that Carter did not offer to help him, but rather, demanded that his vehicle be immediately removed or it would be towed. Plaintiff objected to paying for a tow truck because his son, whose business was located directly across the street, could tow it for free. Yurisic testified that he obeyed Officer Carter's order to not re-enter the truck, and merely leaned through the door to retrieve his cell phone and eye drops. Without warning, according to Plaintiff, Officer Carter stated "I'm tired of fussing with you. . .I am going to give you a citation" and grabbed him from behind and removed him by force to the police station, using a knee in his back. Yurisic testified that he asked Carter to "let go" because Carter was aggravating his rheumatoid arthritis. Yurisic claims that while in the police station, he pleaded to stand up to relieve his back pain, but Carter directed him to remain seated or he would be put in jail. Plaintiff attached photographs which depict extensive bruising on his left forearm and hand and stated that he was bed-ridden for two days after the incident. Yurisic denies having ever used vulgar language or having struck the police officer.
There are several other disputed questions of fact. Carter testified that he put handcuffs on Yurisic when they reached the sidewalk, while Yurisic does not recall ever being handcuffed. Carter testified that he informed Yurisic that he was being arrested for disorderly conduct while en route to the police station, while Yurisic claims that Carter flipped through a book after they reached the station to determine the charge. Carter testified that he offered to take Yurisic to the hospital for medical attention, while Yurisic claims that it was for a blood alcohol test and that Officer Carter changed his mind only after a phone call with Michael Yurisic, who convinced the officer that Plaintiff had not consumed alcohol for nearly twenty years.
In the Complaint, Yurisic asserted claims under Section 1983 for violation of his First, Fourth and Fourteenth Amendment rights and also asserted numerous supplemental state law claims. Defendant has moved for summary judgment on all claims. In his brief in opposition to the summary judgment motion, Plaintiff explained that he has decided to narrow his claims, and is now asserting only Fourth Amendment claims for unlawful arrest and the use of excessive force. Accordingly, Defendant's motion as to all other claims will be GRANTED as unopposed.
Summary judgment should be granted "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 judgment as a matter of law." Fed. R. Civ. P. 56(c). Thus, the Court's task is not to resolve disputed issues of fact, but to determine whether there exist any factual issues to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-49 (1986). The non-moving party must raise "more than a mere scintilla of evidence in its favor" in order to overcome a summary judgment motion. Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989) (citing Liberty Lobby, 477 U.S. at 249). Further, the non-moving party cannot rely on unsupported assertions, conclusory allegations, or mere suspicions in attempting to survive a summary judgment motion. Id. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)). Distilled to its essence, the summary judgment standard requires the non-moving party to create a "sufficient disagreement to require submission [of the evidence] to a jury." Liberty Lobby, 477 U.S. at 251-52.
Section 1983, 42 U.S.C. § 1983, does not create substantive rights, but rather provides a remedy for the violation of civil rights created by federal law. City of Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985). A prima facie case under § 1983 requires a plaintiff to demonstrate: (1) that the alleged wrongful conduct was committed by a person acting under color of state law; and (2) that the conduct deprived the plaintiff of a right, privilege, or immunity secured by the Constitution or laws ...