The opinion of the court was delivered by: Joyner, J.
Before the Court is Defendant's Motion for Summary Judgment (Doc. No. 10) and responses thereto (Doc. Nos. 11, 12). Plaintiff's Complaint alleges four causes of action based on an alleged assault on a bus: Count I - Negligent, Reckless, Intentional and Outrageous Conduct; Count II - Assault and Battery; Count III - Civil Rights Violations; and Count IV -Civil Conspiracy.
On December 16, 2006, Plaintiff boarded a Southeastern Pennsylvania Transportation Authority ("SEPTA") bus at a designated stop at 49 th Street and Parkside Ave. in Philadelphia, Pennsylvania. Once Plaintiff boarded the bus, the female bus operator ordered Plaintiff to get off the bus because the driver claimed that Plaintiff had previously made racial insults to her. The driver then nodded to someone outside of the bus and Plaintiff was attacked and struck numerous times by a man who claimed that he was the bus operator's husband. The assailant left the scene, was later arrested, but charges against the assailant were later dismissed. The assailant was determined to be Cedric Bryant, who was employed by SEPTA as a bus operator.
On the date of the assault, December 16, 2006, Bryant was not in his work uniform. The bus driver was identified as Cynthia Thompson. Thompson and Bryant were involved in a romantic relationship and lived together at the time of the assault.
Summary judgment is appropriate if "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those that may affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248. If the moving party establishes the absence of a genuine issue of material fact, the burden shifts to the non-moving party to "do more than simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). If the non-moving party bears the burden of persuasion at trial, "the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry that burden." Kaucher v. County of Bucks, 456 F.3d 418, 423 (3d Cir. 2006) (quoting Wetzel v. Tucker, 139 F.3d 380, 383 n. 2 (3d Cir. 1998)).
Summary judgment is granted in favor of Defendant on all state law claims (Counts I, II, and IV). Plaintiff's Complaint contains three state law claims: Negligent, Reckless, Intentional and Outrageous Conduct, Assault and Battery, and Civil Conspiracy. Defendant argues, and Plaintiff admits, that sovereign immunity bars these state law claims. Article I, Section 11 of the Pennsylvania Constitution states that the Commonwealth of Pennsylvania may be sued only, "in such manner, in such court, and in such cases as the Legislature may by law direct." SEPTA is considered to be part of the Commonwealth for purposes of sovereign immunity. Feingold v. SEPTA, 517 A.2d 1270, 1276 (Pa. 1986). Under 42 Pa. C.S.A. Section 8522, the Commonwealth waives sovereign immunity for negligent acts related to: (1) the operation of a motor vehicle; (2) acts of health care employees; (3) the care, custody or control of personal property; (4) a dangerous condition of Commonwealth real estate; (5) a dangerous condition of highways; (6) the care, custody and control of animals; (7) the sale of liquor at Pennsylvania liquor stores; (8) acts of members of the Pennsylvania National Guard; and (9) use of toxoids or vaccines. 42 Pa. C.S.A. Section 8522. None of Plaintiff's state law claims against SEPTA fall under any of the exceptions to sovereign immunity; therefore, summary judgment is granted in favor of Defendant on Counts I, II and IV.
B. 42 U.S.C. Section 1983 Claim
In Count III, Plaintiff brings a claim under 42 U.S.C. Section 1983 for violations of his civil rights under the Eighth Amendment to the United States Constitution. Although Plaintiff has attempted to claim a violation of his Fourteenth Amendment Rights in his response to Defendant's Motion for Summary Judgment, the Court will only analyze Plaintiff's claim based on the Eighth Amendment because this is the only constitutional provision cited in his Complaint.*fn2
However, even if Plaintiff's Fourteenth Amendment claim was properly before the Court, there appears to be no merit to this argument. Although persons can raise a claim for the use of excessive force under the Fourteenth Amendment due process standard, in this case SEPTA cannot be held liable for the actions of its employees because there is no evidence that there is any SEPTA policy, practice, custom or procedure which contributed to the assault of Plaintiff. See Monell v. New York City Dept. Of Social Services, 436 U.S. 658 (1978). Plaintiff attempts to argue that a lack of training was responsible for the assault on Plaintiff. However, Plaintiff's own evidence undermines this argument. Plaintiff cites several depositions which showed that SEPTA had an appropriate emergency procedure in place and that the bus driver at the time of the incident, Cynthia Thompson, knew what those procedures required and regularly followed them. And in fact, Thompson filed a report regarding her difficulties with a passenger at 49 th and Parkside prior to the incident.
Ultimately, it appears that Plaintiff's main complaint is the fact that SEPTA's procedure failed to protect him in this particular instance. Although this is truly an unfortunate fact, a single failure of a policy to achieve its desired results is not grounds for employer liability under Section 1983. Plaintiff also appears to argue that SEPTA should have an alternate policy in place. Although, a different policy may have been more effective in protecting Plaintiff, the mere existence of an alternate policy which might be more effective is ...