The opinion of the court was delivered by: Terrence F. McVerry United States District Judge
MEMORANDUM OPINION AND ORDER OF COURT
Pending now before the Court is DEFENDANT‟S MOTION TO DISMISS CERTAIN CLAIMS OF PLAINTIFF‟S COMPLAINT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12(b)(6), filed by Defendant Nevin Beatty at Doc. No. 6, with brief in support, Doc. No. 7, and PLAINTIFF‟S RESPONSE IN OPPOSITION TO DEFENDANT‟S MOTION TO DISMISS, Doc. No. 8, with brief in support, Doc. No. 9. The motion is now ripe for disposition. For the reasons that follow, the motion will be granted in part and denied in part.
Vincent Candito ("Plaintiff") initiated this action on April 22, 2011, with the filing of a three count complaint against Nevin Beatty ("Defendant"), an officer with the Borough of Ohioville Police Department which is located in Beaver County Pennsylvania. Counts I and II charge a mixture of First, Fourth and Fourteenth Amendment claims against Defendant alleging civil rights violations brought pursuant to section 1983 of the Civil Rights Act of 1871, 42 U.S.C. § 1983, specifically excessive force, false arrest, malicious prosecution, and retaliation. Count III alleges state law claims of malicious prosecution and false arrest. See Plaintiff‟s Complaint, filed at Doc. No. 1.
The following facts are taken from the complaint. The events underpinning the counts stem from an interaction between the parties that occurred on the afternoon of October 23, 2010. On that day, Plaintiff agreed to assist a neighbor in moving a wood burner stove into his neighbor‟s basement. Compl. at ¶ 9. Plaintiff "lives across the street from [the neighbor], and since it is a rural area, and Candito was age sixty-two (62), and getting along in his age, he rode his quad directly across the street (at a ninety degree (90) angle) and onto [the neighbor‟s] property over to [the neighbor‟s] house across the street, approximately 127 yards." Compl. at ¶ 10. After the task was completed, Plaintiff returned to his own property by once again operating his all-terrain vehicle (Plaintiff‟s "quad" or "ATV"), across the street that separated the two properties. Compl. at ¶ 12. Upon returning, Plaintiff realized that he may have lost his tobacco pipe in the course of assisting his neighbor, and retraced his route, once again operating his quad to cross the street onto his neighbor‟s property and then returning to his own property. Compl. at ¶¶ 12 and 13. After returning to his own property this second time, Plaintiff heard a siren and noticed that a police vehicle had pulled into his driveway. Compl. at ¶ 13. Plaintiff, still operating his quad, pulled along the driver‟s side of the police vehicle and what can characterized as a verbal confrontation ensued. Compl. at ¶¶ 14 - 22. Because Defendant now seeks the dismissal of Plaintiff‟s claim that he was unlawfully retaliated against as a result of his exercise of his First Amendment right to freedom of speech, the Court notes the following facts alleged in Plaintiff‟s complaint:
14. In response to the audible siren tone, Candito approached the driver side of the police car, still on his quad, and asked the officer [Beatty] "[w]hat‟s up?"
15. Beatty stated to Candito "[g]o get me some identification."
16. Candito said, "[e]xcuse me."
17. Beatty then said, "[y]ou heard what the [expletive omitted] I said."
18. Candito then advised Beatty that this was his residence, by stating "[I] live here, this is my home."
19. Beatty then said "I seen you driving down the road on a quad."
20. Candito stated that he had just rode [sic] down from Hall‟s residence and that the tracks were visible in the grass.
21. Beatty said "[a]re you going to run me over with that quad?"
22. Candito replied "[n]o", Candito then shut off the quad, and removed the keys and placed them in his pocket.
23. Beatty proceeded to tell Candito to get off the quad or that he [Beatty] was going to take him off of it.
According to Plaintiff, he was then subjected to unprovoked physical force, as Defendant proceeded to pull him from the quad by his arm, grabbed him in a bear hug, and threw him to the ground where he landed on his neck. Compl. at ¶ 24 - 26. Plaintiff was then forcefully handcuffed while he was on the ground, during the course of which Defendant was screaming at him, and subsequently forcefully shoved into the back of Defendant‟s police vehicle. Compl. at ¶¶ 26 -- 27. Another police officer arrived shortly thereafter, and both proceeded to, inter alia, accuse Plaintiff of being under the influence of a controlled substance. Compl. at ¶ 32. On more than one occasion, Plaintiff denied having any controlled substance in his system and further asked to be taken to a local medical center for treatment. Compl. at ¶¶ 31 and 35. His requests were ignored.
The focus of the two officers then shifted to the ownership of the quad that Plaintiff had been operating. The second officer suggested to Defendant that the quad was stolen. Compl. at ¶ 37. The two officers first tried to locate a serial number for the quad on their own, and then, directed Plaintiff to show them where it was. Compl. at ¶¶ 37 -- 38. Plaintiff did so, and was then ordered to produce proof of ownership of the quad. Compl. at ¶ 39. Plaintiff, while still handcuffed, led the two officers into his house and to a safe in his basement where he kept the title. Compl. at ¶¶ 40- 48. After placing Plaintiff once again in the back of the police vehicle, Defendant then used the title document to confirm Plaintiff‟s ownership. Compl. at ¶ 49. Defendant then proceeded to take Plaintiff to the Ohioville police station. Compl. at ¶50. Thereafter, Plaintiff was returned to his neighbor‟s property and released to his neighbor. Compl. at ¶ 51.
The following day, a police criminal complaint was filed, charging Plaintiff with one count of misdemeanor terroristic threats (under18 Pa.C.S.A. § 2706(a)(1)), one count of misdemeanor resisting arrest (18 Pa.C.S.A. § 5104), one count of misdemeanor disorderly conduct (18 Pa.C.S.A.§ 5503(a)(4)); and one summary count of violating the Pennsylvania Vehicle Code for operating his ATV across Tuscarawas Road. Compl. at ¶¶ 52 & 53. Thereafter, a preliminary hearing took place, after which the disorderly conduct charge was held for trial in the Court of Common Pleas of Beaver County, while the ...