The opinion of the court was delivered by: Jones, J.
The above-captioned matter involves constitutional claims resulting from injuries sustained by Plaintiff Jeffrey Taylor when he was struck by Defendant Rebecca Moletzsky's*fn1 police vehicle. Specifically, Plaintiff alleges that: (1) Defendant Borough of Pottstown violated his civil rights under 42 U.S.C.A. §1983 by developing and maintaining policies and customs which exhibited deliberate indifference to the constitutional rights of people in Pottstown (namely, inadequate/improper investigation of citizen complaints of police misconduct; inadequate/improper training of police officers; inadequate disciplining and sanctioning of police officers who engage in unlawful conduct; and, inadequate training against a code of silence or "blue code" within the police department);*fn2 (2) Defendant Rebecca Moletzsky utilized "unjustified" and "unreasonable" force against Plaintiff, in violation of his constitutional rights under 42 U.S.C.A. §1983;*fn3 (3) Defendant Borough of Pottstown violated Article I, Section 8 of the Pennsylvania Constitution by depriving Plaintiff of his right to be free from the use of excessive force;*fn4 and, (4) Defendant Rebecca Moletzsky violated Article I, Section 8 of the Pennsylvania Constitution by depriving Plaintiff of his right to be free from the use of excessive force.*fn5
After extensive opportunities for Plaintiff to secure discovery pertaining to his Monell*fn6 claim, Plaintiff obtained an expert report from Criminologist R. Paul McCauley. Dr. McCauley concluded in pertinent part that the customs, policies and procedures within the Pottstown Police Department contributed to a deprivation of Plaintiff's constitutional rights. Subsequent to receiving Dr. McCauley's Report, Defendants filed a Motion for Summary Judgment, seeking dismissal of Plaintiff's entire Complaint. Plaintiff responded and said Motion is currently before this Court for disposition. For the reasons set forth hereinbelow, Defendants' Motion will be granted in part and denied in part.
Plaintiff Jeffrey Taylor instituted this action by filing a Complaint in the Eastern District of Pennsylvania on November 20, 2007. Said Complaint alleged that on or about June 24, 2006, at approximately 3:00 a.m. Plaintiff was walking eastbound on the sidewalk in the area of the 1400 block of East High Street, Pottstown, Pennsylvania. Located at 1428 East High Street was a McDonald's restaurant. (Comp. ¶ 12.) At this time., the roadways in Pottstown, PA were wet as a result of rainfall. (Compl. ¶ 13.) Also at this time, Police Officer Rebecca Moletzsky was operating a marked radio patrol car for the Pottstown Borough Police Department and was in the area of the 1400 block of High Street. (Compl. ¶¶14-15.)
A short time earlier that morning (at approximately 2:09 a.m.), Corporal Michael Pronto of the Pottstown Borough Police Department observed a red Jeep Cherokee with Pennsylvania license number DLS1791 on the highway with litter laying nearby and approached it to investigate. (Prelim. Hr'g. Tr . 4:15-24; 5:1-23.) The vehicle was occupied by Plaintiff, Jeffrey Taylor. (Taylor Dep. 42:14.) When he saw the lights from the police car, Plaintiff "got out of the car and ran." (Taylor Dep. 42:23-24; 43:1-5.) At the time Plaintiff ran, he knew that he had consumed five or six beers at a bar, between the hours of 12:00 a.m. and 2:00 a.m.. (Taylor Dep. 30:6-7; 32:15-20; 33:10-11.) At the time he ran, Plaintiff knew that he did not possess a valid driver's license, and that he would be arrested if stopped. (Taylor Dep. 44:6-8.) Plaintiff had been found guilty on three occasions of Driving Under the Influence, and had his license suspended until 2012. (Taylor Dep. 12:14-19; 15:5-8.) At the time he fled, Plaintiff knew he was on probation for a 2004 conviction for fleeing and eluding the police. (Taylor Dep. 16:14-18.)*fn7
After successfully eluding Corporal Pronto, Plaintiff hid in neighborhood yards for a time, and then walked back towards the McDonald's on High Street. (Taylor Dep. 47:7-11; 48:13-16.) Around 3:00 a.m., Plaintiff was approached by Police Officer Moletzsky, in a marked patrol car. (Taylor Dep. 51:8-12.) Officer Moletzsky spoke to him through her open car window and told him to stop, but Plaintiff refused. (Taylor Dep. 52:6-24; 53:1-9.) At the time Officer Moletzsky approached Plaintiff, she informed him that she was looking for someone that fit his description. (Taylor Dep. 53:4-6.) Plaintiff fled on foot, through some bushes and into the McDonald's parking lot on High Street. (Taylor Dep. 55:6-7.) Contrary to the numerous prior times when Plaintiff had fled from the police, he felt something was different, as Officer Moletzsky did not get out of her car to run after him. (Taylor Dep. 65:22-24; 66:1-2.) Officer Moletzsky's police car ultimately struck Plaintiff, causing him to fall to the ground. (Taylor Dep. 68:22-24; 69:7-9).*fn8
Jeffrey Taylor was charged with possession of marijuana, possession of drug paraphernalia, receiving stolen property, disorderly conduct, driving under suspended license (DUI related), and depositing waste on a highway. (Def.s' Exs. in Supp. Summ. J., Ex. B.)
The standard for assessing a Motion for Summary Judgment is well-settled:
A court should grant summary judgment "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 a judgment as a matter of law." The Supreme Court has further ruled that a "genuine" issue exists if "the evidence is such that a reasonable jury could return a verdict for the non-moving party," and a factual dispute is "material" when it "might affect the outcome of the suit under the governing law."
In considering a motion for summary judgment, "the inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." In a summary judgment motion, the moving party has the initial burden of identifying evidence which demonstrates the absence of a genuine issue of material fact. The party opposing the motion, however, cannot rely merely upon bare assertions, conclusory allegations, or suspicions to support its claim.
Sentry Select Ins. Co. v. LBL Skysystems (U.S.A.), Inc., 486 F. Supp. 2d 496, 506 (E.D. Pa. 2007)(citations omitted).
As specifically relevant to this case . . .
. . . In order to survive a motion for summary judgment on a [S]section 1983 claim, a plaintiff must show that the defendant acted under color of state law, and that the plaintiff was deprived of a federal constitutional right. [Where] there is no dispute that [ ] [Defendants] were state actors, the focus of the Court's analysis is whether any Defendant transgressed [Plaintiff's] constitutional rights. Thus, in order for [Plaintiff's] section 1983 claim to survive a motion for summary judgment, the Court must find a genuine issue of material fact as to this issue.
Marshall v. Penn Twp., 2009 U.S. Dist. LEXIS 93210, at **15-16 (W.D. Pa. Sept. 30, 2009).
In the Motion for Summary Judgment presently before this Court, Defendants contend that: (1) Plaintiff cannot support claims for violations of 42 U.S.C.A. §1983 on the basis of potentially negligent conduct by Officer Moletzsky in the operation of her police vehicle; (2) Any potential Fourteenth Amendment substantive due process and equal protection claims being asserted by Plaintiff are necessarily subsumed by his Fourth Amendment claim and cannot stand as a matter of law; (3) Plaintiff's claims under the Pennsylvania Constitution are barred as a matter of law; (4) Plaintiff's claims for excessive force cannot stand as a matter of law; (5) Defendant Moletzsky is entitled to qualified immunity; (6) Plaintiff's Monell claims fail as a matter of law; and, (7) punitive damages are not available to Plaintiff.
A. The Bases for Plaintiff's Constitutional Claims Under 42 U.S.C. §1983*fn9
Defendants first contend that Plaintiff is improperly relying upon the negligent acts of Officer Moletzsky in support of his constitutional claims and that any Fourteenth Amendment substantive due process rights Plaintiff may be attempting to assert, are subsumed by his Fourth Amendment claims. In that same vein, Defendants assert that discovery in this matter has revealed no evidence of willful misconduct by Officer Moletzsky, which would be necessary to sustain his claims under 42 U.S.C. §1983.
Preliminarily, "[t]o prevail on a cause of action under section 1983, a plaintiff must prove that the conduct of a state actor deprived him of a right, privilege, or immunity secured by the United States Constitution or the law[s] of the United States." Carroll v. Borough of State College, 854 F. Supp. 1184, 1189 (M.D. Pa. 1994), aff'd, 47 F.3d 1160 (3d Cir. Pa. 1995). In cases such as this wherein the court is asked to review a cause of action involving the alleged use of excessive force, it has been held that "[b]ecause the Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment, not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims." Graham v. Connor, 490 U.S. 386, 395 (1989). See also Abraham v. Raso, 183 F.3d 279, 288 (3d Cir.1999)("[E]xcessive force in the course of an arrest is properly analyzed under the Fourth Amendment, not under substantive due process.")(citation omitted); Mellott v. Heemer, 161 F.3d 117, 121 (3d Cir. 1998)("'[A]ll claims that law enforcement officers have used excessive force . in the course of a [ ] . seizure of a free citizen should be analyzed under the Fourth Amendment and its reasonableness standard, rather than under a substantive due process approach.'")(citation omitted), cert. denied, 526 U.S. 1160 (1999).
The courts have specifically admonished that:
The Fourteenth Amendment Due Process Clause is not "a font of tort law to be superimposed upon whatever systems may already be administered by the States." "The Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property."
Fulkerson v. Lancaster, 801 F. Supp. 1476, 1480 (E.D. Pa. 1992)(citations omitted), aff'd, 993 F.2d 876 (3d Cir. Pa. 1993).
Fulkerson involved a high speed police chase which resulted in injuries to other travelers on the same road. In granting summary judgment on the plaintiffs' Section 1983 claims, the court concluded that " . . . plaintiffs have shown, at most, evidence that the pursuing officer may have acted imprudently in continuing his pursuit over roads with which he was not very familiar or in driving at too high a speed. Prudence and imprudence ...