The opinion of the court was delivered by: Judge James M. Munley United States District Court
Before the court is defendants' motion for summary judgment (Doc. 17). Having been fully briefed and argued, the matter is ripe for disposition.
This case arises out of an incident between plaintiff and officers of the Carlisle, Pennsylvania police department. At approximately 6 p.m. on October 20, 2006, Plaintiff Richard Shultz suffered a seizure while visiting a McDonald's restaurant located in a Wal-Mart in Carlisle, Pennsylvania. (Defendants' Statement of Material Facts (Doc. 18) (hereinafter "Defendants' Statement") at ¶ 1).*fn1 Wal-Mart patrons called for emergency medical assistance and a police dispatcher reported that plaintiff was suffering a seizure or possibly intoxicated. (Id. at ¶ 2). Defendant Corporal William Miller of the Carlisle Police Department arrived at the Wal-Mart shortly thereafter. (Id. at ¶ 3). Corporal Miller had heard a radio dispatch reporting that Defendant Officer Jeffrey Kurtz was responding to the scene and that a person at the Wal-Mart was experiencing a seizure or was intoxicated. (Id.). The parties dispute whether the McDonald's was busy when Miller arrived. (Defendants' Statement at ¶ 4; Plaintiff's Counterstatement of Material Facts (Doc. 24) (hereinafter "Plaintiff's Statement") at ¶ 4). Miller testified that around twenty-five people were in the restaurant when he got there, and that these people were evenly distributed between two areas in the restaurant. (Plaintiff's Statement at ¶ 4). Miller saw plaintiff sitting at a McDonald's table staring straight ahead. (Defendants' Statement at ¶ 4).
Included in the case file is a DVD of surveillance footage from the McDonald's. (Id. at ¶ 5). One piece of footage, taken from behind the counter at the McDonald's, shows plaintiff standing in line, swaying slightly, and falling to the ground. (Id.). Video shot by another camera shows personnel, presumably from McDonald's and Wal-Mart, speaking with the plaintiff. (Id. at ¶ 6). The parties disagree about the contents of this conversation. (Id. at ¶ 6; Plaintiff's Statement at ¶ 6). Defendants contend that store employees attempted for several minutes to obtain information from plaintiff, but that he failed to respond. (Id. at ¶ 6). Plaintiff insists that defendants have produced no evidence about plaintiff's conversation with these people. (Plaintiff's statement at ¶ 6).
Defendant Miller, upon arriving at the McDonald's, approached plaintiff while he was seated at the table and began speaking with him. (Id. at ¶ 7). He asked plaintiff questions about who he was, where he lived, and how he felt. (Id.). Plaintiff was largely unresponsive, mostly repeated that he was "fine." (Id.). The parties dispute whether Miller remained calm and quiet while speaking to plaitniff. (Id.; Plaintiff's Statement at ¶ 7). Plaintiff contends that Miller allowed a growing crowd to surround him, and that this action "potentially removed" any calm defendant had created. (Id.). Defendant Detective Kurtz, who was the next officer on the scene, appeared shortly after Miller did. (Defendants' Statement at ¶ 8). He stood back to cover Miller while Miller talked to plaintiff. (Id.).
Emergency Medical Services ("EMS") were also dispatched to the Wal-Mart and McDonald's. (Id. at ¶ 9). They arrived while Miller was speaking with plaintiff. (Id.). One EMS worker attempted to persuade plaintiff to go to the hospital. (Id.). Defendants contend that plaintiff refused to do so and became agitated. (Id.). Plaintiff disputes this, pointing out that Defendant Miller testified that plaintiff was more cooperative while he spoke with the ambulance crew. (Plaintiff's Statement at ¶ 9). Miller testified that he had been informed by EMS workers that plaintiff needed to go to the hospital for immediate medical attention. (Defendants' Statement at ¶ 12). Plaintiff insists that defendants lack evidence of this claim, since they have not provided any sworn statements from EMS personnel about the incident. (Plaintiff's Statement at ¶ 12).
The parties dispute the amount of time that personnel on the scene attempted to reason with plaintiff. (Defendants' Statement at ¶ 10; Plaintiff's Statement at ¶ 10). Defendants contend that store personnel, Corporal Miller and EMS attempted to convince plaintiff to seek medical treatment for nearly twenty minutes before the incident at question here occurred. (Defendants' Statement at ¶ 10). Plaintiff, citing to the DVD of the incident, insists that the incident occurred slightly more than six minutes after Miller arrived on the scene, and only two minutes after EMS workers brought a gurnery into the restaurant. (Plaintiff's Statement at ¶ 10). Defendant Miller, plaintiff contends, used a Taser on plaintiff around thirty seconds later. (Id.).
Whatever the length of this conversation, at some point plaintiff got up from his chair and pushed aside a gurney, which EMS workers had placed next to his table. (Defendants' Statement at ¶ 13). He began moving towards the McDonald's exit. (Id.). Plaintiff disputes that the DVD of the incident shows him shoving aside the gurney, or that he was anywhere near the exit when he got up. (Plaintiff's Statement at ¶ 13). In any case, plaintiff insists, he was unconscious and could not form an intent to push anything. (Id. at ¶14). Corporal Miller and Detective Kurtz moved immediately to contain plaintiff. (Defendants' Statement at ¶ 13). They contend that they gave him verbal commands in an attempt to get him to comply with their request to get on the gurney and go to the hospital. (Id. at ¶ 14). Plaintiff insists that the videotapes demonstrate that there was no time for officers to give him a verbal warning before they placed their hands on him. (Plaintiff's Statement at ¶ 14).
Defendants contend that officers attempted to move plaintiff and force him onto the gurney, but that he resisted. (Defendants' Statement at ¶ 15). Plaintiff interprets the evidence from the videotapes to demonstrate that officers wrestled plaintiff to the ground almost immediately after he stood up. (Plaintiff's Statement at ¶ 15). Corporal Miller and Detective Kurtz insist that they warned defendant repeatedly that he would be forced onto the gurney if he did not comply. (Defendants' Statement at ¶ 16). Only after he refused these requests, they claim, did they attempt to move him physically. (Id.). The three men soon began wrestling. (Id. at ¶ 17). During this wrestling, Corporal Miller used his Taser, a device that delivers short electrical bursts as a means of subduing and controlling suspects, against the plaintiff. (Id.). Miller used the device six times. (Id. at ¶ 19). After this sixth Taser discharge, Miller and Kurtz handcuffed the plaintiff. (Id. at ¶ 20). EMS personnel then transported plaintiff to the Carlisle Regional Medical Center. (Id. at ¶ 21). He was treated and released. (Id.).
Plaintiff points to various pieces of evidence to contest defendants' version of this altercation. Pointing to Defendant Miller's Use of Force Report, executed after the incident, plaintiff insists that the only command Miller gave plaintiff was a warning that if he did not comply he would be tasered. (Plaintiff's Statement at ¶ 16).
Plaintiff responded, Miller reported, with only a blank stare. (Id.). Plaintiff insists that the video of the incident does not reveal Miller's intent in using the Taser, and that his purpose was punitive. (Id.). Though plaintiff contests the accuracy of the Taser International report of Miller's use of that device, plaintiff contends that the amount of time between Miller's applications of force was too small to support his claim that he used the device only after assessing the situation to see if plaintiff had complied. (Id. at ¶ 18; Defendants' Statement at ¶ 18).
Plaintiff does not recall any of the events that led to the incident or of the incident itself. (Defendant's Statement at ¶¶ 11; 22). He was not wearing any sort of a medical bracelet at the time of the incident. (Id. at ¶ 23). Defendant Miller testified that he did not check for such a bracelet at the time of the incident. (Plaintiff's Statement at ¶ 23).
The parties disagree about the injuries plaintiff suffered from the incident. Defendants contend that plaintiff alleged only that he suffered a small bruise on his lower back and a series of small red marks made by the application of the Taser. (Defendants' Statement at ¶ 24). Moreover, they claim, plaintiff admitted that the bruise to his back was in the same portion of his back that struck the flooring during his seizure at the McDonald's. (Id. at ¶ 25). Plaintiff describes his injuries as a burn and bruise to his back caused by the Taser, a bruise on his head, bruises and pain from the handcuffs, emotional injuries from humiliation and embarrassment, and constitutional injuries. (Plaintiff's Statement at ¶ 24). As evidence of his injuries, plaintiff points to pictures taken four days after the incident that show bruising on his wrist and back consistent with handcuffs and Tasers. (Id. at ¶ 26).
Plaintiff filed the instant complaint on October 15, 2008. The complaint contains six counts. Count I, brought pursuant to 42 U.S.C. § 1983, alleges that defendants Miller and Kurtz used excessive force in subduing plaintiff in violation of his Fourth Amendment rights. Count II is a state-law claim of assault against the defendants. Count III is a state-law battery claim. Count IV alleges intentional infliction of emotional distress against the defendants. Count V raises a failure-to-train claim against the Borough of Carlisle. Count VI alleges that the defendants violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101, in their treatment of plaintiff.
The defendants answered the complaint. (Doc. 7). After the parties conducted discovery, defendants filed the instant motion. The parties briefed the issue, and the court held oral argument, bringing the case to its present posture.
As the plaintiff brings causes of action pursuant to 42 U.S.C. § 1983 and other federal statutes, the court has jurisdiction pursuant to 28 U.S.C. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). The court has supplemental jurisdiction over plaintiff's state-law claims pursuant to 28 U.S.C. § 1367(a) ("In any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims ...