The opinion of the court was delivered by: Goldberg, J.
This case stems from the shooting death of James Stewart, who was killed after resisting Allentown Police Officers' attempts to take him into custody. Currently before the Court is Defendants' Motion for Summary Judgment, which seeks the dismissal of Plaintiffs' § 1983 and state law claims brought against the City of Allentown and two individual police officers. Because we find that genuine issues of material fact remain as to whether the shooting officer, Jeremy Moll, used excessive force, Defendants' motion to dismiss that particular § 1983 claim will be denied. However, for reasons detailed below, the bulk of Plaintiffs' other civil claims will be dismissed.
James Stewart (hereinafter referred to as "the decedent") had been incarcerated in Northampton County, Pennsylvania, in a work release program. On March 4, 2005, the decedent left that program without permission and returned to his former residence at 510 Auburn Street, Allentown, Pennsylvania. On March 19, 2005, the Allentown Police Department was informed that the decedent was staying at this residence. On the same day, Officers Jeremy Moll and Wesley Wilcox proceeded to the residence, and upon their arrival, they encountered the decedent's sister, Tonya Stewart. When the officers asked Stewart if the decedent was present, she replied that he was not home. The officers then requested permission to enter and search the premises, to which Stewart agreed. Upon entering the residence, the officers found the decedent sitting on a bed in the bedroom. After confirming the decedent's identity based on the tattoos on his neck and arm, the officers asked the decedent to stand up and place his hands behind his back. (Statements of Undisputed Facts, ¶¶ 3-35).
According to Tonya Stewart's deposition testimony, the following occurred next: After the officers told the decedent to stand and put his hands behind his back, the decedent took a box cutter from his belt and began stabbing himself in the chest. Officer Wilcox then began wrestling with the decedent and the box cutter "went flying across the room . . . totally across the room." Meanwhile, Officer Moll, who was not immediately involved in the struggle, tripped over something in the room. After losing the box cutter, the decedent began "running towards the door," while still engaged with Wilcox, who stood between the decedent and the door and held one of his arms. The decedent was able to free his arm from Wilcox and the now free arm fell to his side. Officer Moll, now back on his feet, then shot the decedent, who fell to his knees, after which Moll shot him again, causing the decedent to fall backwards. According to Tonya Stewart, the shots happened in quick succession. (Stewart Dep., pp. 52-54, 57, 59, 64, 77).
Stewart further testified that after the shots were fired, Wilcox said to Moll, "[w]hat the F' did you do?," and Moll responded "I don't know; I don't know." Tonya Stewart was screaming, "[y]ou shot my brother" and Moll next "threw [Tonya Stewart] to the ground" and told her to put her hands behind her back. Moll stated, "[the decedent] just had an F'in knife . . . I don't know if you have any weapons." In the meantime, Wilcox handcuffed the decedent. (Stewart Dep., pp. 77- 78, 82).
Tonya Stewart has further alleged that Moll put handcuffs on her that were so tight she had marks on her hands. She further stated that sometime after the shooting, Wilcox picked up the box cutter and "threw it by [the decedent]." She was eventually taken to the police station where she was questioned about the incident. (Stewart Dep., pp. 78, 85, 88-89).
Tonya Stewart's version of the shooting recounted above, differs from statements she made following the incident. Most notably, according to the police report, Stewart stated that the decedent "was fighting the cops with a knife: he was crazy, he just kept going, until they shot him." (Police Report, p. 4).
The officers' account of the shooting also varies from Tonya Stewart's recollection. According to the officers, the following occurred:
When the officers asked the decedent to stand up and place his hands behind his back, he refused to comply. Wilcox then grabbed the decedent's right elbow, and the decedent began reaching for his waist area. Moll then grabbed the decedent's left arm, and the officers wrestled with him. At this point, Wilcox saw a knife in the decedent's hand, and the knife fell during their struggle. The decedent began reaching for the knife, broke free from Moll, and began pushing Wilcox, causing Wilcox to fall over the bed and lose his grip on the decedent. When the decedent moved towards Wilcox, Moll fired two shots. Before the shots, Wilcox could not see the decedent's left hand but indicated that there may have been a knife in that hand. Moll stated that he saw a "gray metallic object," which he thought was a knife, in the decedent's right hand when he shot. (Statements of Undisputed Facts, ¶¶ 70-105).
Plaintiffs, Laura Stewart, the Administratrix of the estate of the decedent, and Tonya Stewart, filed suit on March 19, 2007, against the City of Allentown, Allentown Police Chief Joseph Blackburn, and Officers Moll and Wilcox. The complaint generally alleges § 1983 claims and also raises numerous state law causes of action.*fn1
Defendants subsequently filed a motion to dismiss, and on July 9, 2007, the Honorable James Knoll Gardner granted that motion as unopposed and dismissed Counts I, II, III, X, and XV. On August 16, 2007, Plaintiffs' claims against Blackburn were dismissed for failure to serve the summons and complaint. On April 20, 2010, Defendants filed the instant motion for summary judgment seeking the dismissal of Plaintiffs' remaining claims.
A. Summary Judgment Standard
Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Brooks v. CBS Radio, Inc., 342 Fed.Appx. 771, 775 (3d Cir. 2009) (citing Fed. R. Civ. P. 56(c)). "In determining whether the moving party has met its burden of demonstrating the absence of any genuine issue of material fact, the facts must be viewed, and all reasonable inferences must be drawn, in the light most favorable to the non-moving party."
Id. The inquiry is whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one sided that one party must, as a matter of law, prevail over the other. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986). The Court's function in deciding a motion for summary judgment is not to decide disputed questions of fact, but only to determine whether genuine issues of fact exist. Id. at 248-249.
A party seeking summary judgment always bears the initial responsibility of 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. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (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 nonmoving party's case." Id. at 325. After the moving party has met its initial burden, 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." Id. at 322.
B. Excessive Force Under 42 U.S.C. § 1983 (Count IV)
Plaintiffs have raised several claims of excessive force under § 1983: the estate's claim against Moll for shooting the decedent; the estate's claim against Wilcox for failing to intervene in the shooting; Tonya Stewart's claim against Moll for throwing her to the ground after the shooting; and Tonya Stewart's claim against Wilcox ...