The opinion of the court was delivered by: Joyner, C.J.
Before the Court is Defendants' Motion for Summary Judgment (ECF No. 11). For the reasons set forth in this Memorandum, the Defendants' Motion is GRANTED in part and DENIED in part.
Officer Joseph Pretti is a police officer for the Borough of Eddystone, Pennsylvania (collectively "Defendants"). On September 15, 2007, shortly before 4:00 pm, Officer Pretti was patrolling the Eddystone Crossing Shopping Center in his police cruiser when he noticed several cars parked in the fire lane. The fire lane runs parallel to a concrete walkway separating the roadway from the storefronts. Officer Pretti parked his cruiser behind a car in which Karen Clifton ("Plaintiff") was seated in the back seat. Plaintiff's daughter, Kelly, had parked the car in the fire lane while she and a friend went into a store to shop. Officer Pretti did not activate his police lights or sirens and did not get out of his car. Plaintiff noticed Officer Pretti's presence and exited the car, walked up to the door to the beauty supply store and told her daughter to move the car. Although the parties dispute what happened next, they agree that Ms. Clifton uttered "you asshole Eddystone mother-fucking cop." Officer Pretti arrested Ms. Clifton for disorderly conduct, 18 Pa. Cons. Stat. Ann. § 5503 (West 2000). Shortly before 4:00 pm, Ms. Clifton was handcuffed, placed in the back of Officer Pretti's cruiser and transported to the Ridley Township Police Department. At approximately 7:30 pm, Plaintiff was transported to the Eddystone Police Department, cited for disorderly conduct and released from custody.
Plaintiff commenced the present action against Officer Pretti under 42 U.S.C. § 1983, alleging the following constitutional violations: First Amendment retaliatory arrest and prosecution, Fourth Amendment false arrest and imprisonment, Fourth Amendment excessive force, and Fourth Amendment malicious prosecution.*fn1 Additionally, Plaintiff states a malicious prosecution claim against Officer Pretti under Pennsylvania common law. Plaintiff also asserts a § 1983 claim against the Borough of Eddystone ("Eddystone") for municipal liability for First and Fourth Amendment violations.
Upon considering a motion for summary judgment, the Court shall grant the motion "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In making a determination, "inferences to be drawn from the underlying facts . . . must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (alteration in original) (internal quotation marks omitted). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). "The party opposing summary judgment "may not rest upon the mere allegations or denials of the . . . pleading; its response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial." Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001) (alteration in original) (internal quotation marks omitted).
Where, as here, the non-movant does not respond to a motion for summary judgment, the Court will grant the motion if the movant is entitled to it as a matter of law.*fn2 See Fed. R. Civ. P. 56(e)(3). The movant, however, is not entitled to summary judgment simply because the non-movant did not oppose the motion. See E.D. Pa. R. Civ. P. 7.1(c); Anchorage Assocs. v. Virgin Island Bd. of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990). The Court may treat the facts asserted by Defendant as undisputed. See Fed. R. Civ. P. 56(e); Anchorage, 922 F.2d at 175. Where the movant identifies facts to establish no genuine issue of material fact exists, and the non-movant has the burden of persuasion, the non-movant must identify those facts of record which would contradict the movant's facts. See Childers v. Joseph, 842 F.2d 689, 694-95 (3d Cir. 1988). "[T]he burden is on the [non-movant], not the court, to cull the record and affirmatively identify genuine, material factual issues sufficient to defeat a motion for summary judgment." Longo v. First Nat'l Mortg. Sources, Civ. No. 07-4372 (MLC), 2009 WL 313334, at *3 (D.N.J. Feb. 6, 2009) (alteration in original) (internal quotation marks omitted).
A. Plaintiff's § 1983 Claims Against Officer Pretti Plaintiff alleges several violations of her rights under the First and Fourth Amendments and seeks relief under 42 U.S.C. § 1983. Officer Pretti raised the affirmative defense of qualified immunity in his answer to the complaint. A state official with qualified immunity has no civil liability for discretionary conduct so long as he does "not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Whether Officer Pretti has qualified immunity is a two-part inquiry. The Court must determine whether the plaintiff has shown facts that make out a constitutional rights violation and if so, whether those rights were "clearly established" at the time of the incident. Pearson v. Callahan, 555 U.S. 223, 232 (2009). The Court conducts the two-part qualified immunity inquiry for each of Plaintiff's claims, in turn.
1. Fourth Amendment Seizure*fn3
Officer Pretti arrested Plaintiff under Pennsylvania's disorderly conduct statute, which states in pertinent part:
A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:
(1) engages in fighting or threatening, or in violent or tumultuous behavior;
(2) makes unreasonable noise;
(3) uses obscene language, or makes an obscene gesture; or
(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
18 Pa. Cons. Stat. Ann. § 5503(a). According to Plaintiff's recollection of the incident, she stepped out of her daughter's car, which was parked in the fire lane, crossed the adjacent walkway, opened the door to a beauty supply store, and from the doorway informed her daughter that she needed to move her car out of the fire lane. (Def.'s Mot. Ex. A, at 85-87.) As Ms. Clifton walked back to the car, she alleges that she uttered "you asshole Eddystone mother fucking cop" under her breath at the "slightest whisper." Id. at 92, 94. Plaintiff stated that although the parking lot was full of cars, no one was present at or near the area where she made the statement and Officer Pretti was still seated in his car. Id. at 131. Officer Pretti's recollection varies substantially. He recalls the walkway and area around Ms. Clifton being crowded with pedestrians. (Def.'s Mot. Ex. C, at 20, 44.) Officer Pretti alleges that Ms. Clifton was "cursing at [him] at the top of her lungs" and caused several passers-by to walk into the street to avoid her. Id. at 20-21. According to Officer Pretti, he arrested Ms. Clifton after she refused to comply with his orders to cease and desist. Id. From the time of her arrest to the time of her release, Ms. Clifton was in custody for approximately three-and-a-half hours. (Def.'s Mot. Ex. A, at 135.)
An arrest is lawful under the Fourth Amendment only if it is supported by probable cause. See, e.g., Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir. 2003). The dispositive issue is not whether Plaintiff actually committed the offense but whether Officer Pretti had probable cause to believe Plaintiff committed the offense at the time he arrested her. See Dowling v. City of Philadelphia, 855 F.2d 136, 141 (3d Cir. 1988); see also Michigan v. DeFillippo, 443 U.S. 31, 36 (1979) ("the mere fact the suspect is later acquitted of the offense for which he is arrested is irrelevant."). Probable cause is a question of fact for the jury to decide, Groman v. Township of Manalapan, 47 F.3d 628, 635 (3d Cir. 1995), but Defendants contend that viewing all the evidence in favor of Plaintiff, probable cause existed as a matter of law.
Probable cause is present where an officer has a sufficient basis to make a "practical, common sense" decision that a "fair probability" of criminal activity exists. Illinois v. Gates, 462 U.S. 213, 238 (1983). The inquiry is whether "facts and circumstances within the officer's knowledge  are sufficient to warrant a prudent person, or one of reasonable caution, in believing, in the circumstances shown, that the suspect has committed, is committing, or is about to commit an offense." DeFillippo, 443 U.S. at 37. If the arrest was effected without probable cause, it would violate Plaintiff's Fourth Amendment protection against unreasonable seizures.
The factual record is unclear as to which part of the statute Plaintiff's arrest is based. Defendants argue in their motion probable cause exists under the obscene language provision, 18 Pa. Cons. Stat. Ann. § 5503(a)(3). (Def.'s Mot. 10-15). On the other hand, Officer Pretti's citation designates the basis for arrest as both obscene language and creating a "hazardous or physically offensive condition," § 5503(a)(3), (4). (Def.'s Mot. Ex. D.) The magistrate adjudged Plaintiff not guilty, citing only the "hazardous or physically offensive condition" provision, § 5503(a)(4). (Compl. Ex. C.) Regardless of which part of the statute is alleged to be violated, Plaintiff cannot prevail on her claim if Officer Pretti had probable cause to arrest her for any offense at the time. See Reedy v. Evanson, 615 F.3d 197, 211 (3d Cir. 2010) ("Probable cause need only exist as to [one of the] offense[s] that could be charged under the circumstances." (alterations in original) (internal quotation marks omitted)), cert. denied, 131 S. Ct 1571 (2011). Therefore, the Court must consider whether probable cause existed to arrest Plaintiff for violating any provision of the disorderly conduct statute.
For the purposes of defining obscene language, the Pennsylvania courts adopted the test for obscenity articulated by the Supreme Court in Miller v. California, 413 U.S. 15 (1973). Commonwealth v. Kelly, 758 A.2d 1284, 1286 (Pa. Super. Ct. 2000). The Miller test delineates three requirements:
(a) whether the average person, applying contemporary community standards would find that the work, taken as a whole, appeals to the prurient interest;
(b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by ...