The opinion of the court was delivered by: Joyner, J.
This civil rights action is once again before the Court for adjudication of the Defendants' Motion for Summary Judgment. For the reasons outlined in the paragraphs which follow, the Motion shall be GRANTED.
This case has its origins in a vehicle stop which occurred at approximately 9:30 p.m. on November 19, 2008 in the 1600 block of Meetinghouse Road in Warwick Township, Bucks County, Pennsylvania. Immediately prior to that time, Bucks County Police Radio ("BCR") had received a call from an area motorist that there was a light-colored station wagon crossing over the double yellow line and driving on the wrong side of the road on nearby Bristol Road. In addition to providing this information, the motorist also supplied BCR with the license plate number of the car, which he had followed from Bristol Road to Eddowes Road.
Corporal Aaron Richwine of the Warwick Township Police Department was on patrol in the area when he received the BCR transmission. A few minutes later, he saw a light colored wagon pulling out of an industrial complex on Eddowes Road. Noting that the license tag matched that given by the motorist, Cpl. Richwine followed the vehicle and, and after observing it first using the center portion of the roadway and then driving on the left side of the road, he activated the lights on his police vehicle and pulled it over. (Affidavit of Probable Cause, p. 4, annexed as Exhibit "M" to Plaintiff's Memorandum of Law in Opposition to Motion for Summary Judgment; Deposition of Cpl. Aaron Richwine, dated 10/6/11, at pp. 15-16).
Cpl. Richwine approached the driver's side of the stopped car and found it to contain a single occupant -- the driver, Plaintiff, Micheale Gorman. Richwine informed Ms. Gorman that the stop was being audio and video recorded and asked whether she was lost. Plaintiff responded that she was driving the way that she was because she had just hit a deer the preceding week and totaled her car. In response to Cpl. Richwine's question as to how many alcoholic drinks she had, Plaintiff replied that she had "probably, not even one." After checking her license and registration, Richwine then asked Plaintiff to submit to a preliminary breath test ("PBT") as he wanted to be sure that she was safe to continue driving. *fn2 Plaintiff refused to take the PBT ostensibly because she had been told that they aren't accurate and said that since her house was just up the road, she would just walk home. Cpl. Richwine told Plaintiff that she was not free to leave and that if she wouldn't take the PBT, she would have to perform field sobriety tests.
Cpl. Richwine then demonstrated the three sobriety tests which he wanted Plaintiff to perform: the closed eyes balance, one-leg stand and the heel to toe walking tests. While she was able to perform the one-leg standing test, she swayed while performing the closed eyes balance test and stumbled when she started the heel to toe test and ended up walking normally (not heel-to-toe) for most of it. Cpl. Richwine gave Plaintiff another opportunity to take the PBT, advising her that he would be placing her under arrest for Driving Under the Influence ("DUI") but that if the PBT came back with a .08 reading or lower, he would not arrest her. The other officers also told Plaintiff that the PBT could only help her, it could not hurt her given that it was only preliminary, it was not admissible in court and they could not testify to its results. Plaintiff again refused and Cpl. Richwine advised her that he was placing her under arrest.
It was at this point that Plaintiff became what can only be described as uncooperative. She stiffened her arms in front of her body, refusing to put them behind her back. After asking the other officers if anyone had a taser, Cpl. Richwine told Plaintiff to put her hands behind her back or she would be tased. Officer Loux removed his taser from his holster and demonstrably "sparked" it. Although Ms. Gorman said that she wasn't afraid of being tased, she did comply and was handcuffed behind her back. Because all of the officers at the scene were men, Cpl. Richwine asked whether there were any female officers on duty that night. One of the other officers told him that Warminster Township Officer Renee Fox was working and Richwine instructed that she be called to conduct a search of the plaintiff's person. At that point, Richwine told Plaintiff that he would be walking her back to Officer Loux and Officer Szamboti's vehicle while they waited for Officer Fox to arrive. Plaintiff became argumentative, telling Cpl. Richwine to let go of her arm, "he was bruising" her. When one of the other officers told her that they couldn't let go of her because she was handcuffed, Ms. Gorman responded that she "didn't care," that she was not "gonna relax...this is why you people have a bad reputation," that "this is a false arrest," and asking the police if they "want to have some charges pressed against you?"
Subsequently, when the officers asked her to sit in the back of the police vehicle, Plaintiff refused. *fn3 Cpl. Richwine told her "Ma'am, you're going to get tasered if you don't get in the car." Plaintiff responded "go ahead and taser me." Richwine again told Plaintiff to get in the car and Plaintiff again said "taser me." After the third entreaty to get in the car, Richwine told her that she did not want to get tasered to which Plaintiff responded that she had been tasered before and it didn't bother her. Although the following events are not seen on the video, they are recorded on the audio and attested to in the depositions of the parties. Cpl. Richwine reached for his taser, but before he could use it, Officer Loux stepped forward and delivered a "drive stun" which lasted approximately 4 seconds to the rear portion of Plaintiff's left thigh. *fn4 (Gorman Dep., 68-69; Richwine Dep., 51-59; Loux Dep., 16-21). Plaintiff immediately became compliant and stepped into the back seat of the police car. (Richwine Dep., 63-65; Loux Dep., 21-22). *fn5 A few minutes later, Officer Fox arrived and performed a pat-down search of Plaintiff, following which Plaintiff was transported to the Doylestown Hospital, where she was examined and blood was drawn for testing. Ms. Gorman was released from police custody at the hospital. (Richwine Dep., 72-73, Affidavit of Renee Fox, attached to Defendants' Memorandum of Law in Support of Motion for Summary Judgment as Exhibit "H"; Exhibit "I"). Plaintiff subsequently pled guilty to driving under the influence of alcohol as a result of this incident. (Exhibit "I").
On November 18, 2010, Plaintiff brought this suit against Warwick Township, Corporal Richwine, Officer Loux and Officer Szamboti in both their official and individual capacities alleging violations of her constitutional rights under the Fourth and Fourteenth Amendments and for the common law torts of intentional infliction of emotional distress, assault and battery and misrepresentation. After partially granting the defendants' motion to dismiss, Plaintiff filed a Second Amended Complaint against Warwick Township, Richwine and Loux seeking redress under the Fourth Amendment for excessive force, and for assault and battery, intentional infliction of emotional distress and misrepresentation. Discovery in this matter has since closed and Defendants filed this motion for summary judgment on December 7, 2011.
Standards Governing Rule 56 Summary Judgment Motions
The principles and procedures for resolving motions for summary judgment are outlined in Fed. R. Civ. P. 56, which dictates that:
The court shall grant summary judgment 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. The court should state on the record the reasons for granting or denying the motion.
In considering a summary judgment motion, the court must view the facts in the light most favorable to the non-moving party and all reasonable inferences from the facts must be drawn in favor of that party as well. Sovereign Bank v. BJ's Wholesale Club, Inc., 533 F.3d 162, 171 (3d Cir. 2008); Troy Chemical Corp. v. Teamsters Union Local No. 408, 37 F.3d 123, 126 (3d Cir. 1994); Williams v. Borough of West Chester, 891 F.2d 458, 460 (3d Cir. 1989); U.S. v. Kensington Hospital, 760 F. Supp. 1120 (E.D.Pa. 1991). It should be noted that an issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law. Kaucher v. County of Bucks, 456 F.3d 418, 423 (3d Cir. 2006), citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986).
Further, "[t]he mere existence of some evidence in support of the non-movant is insufficient to deny a motion for summary judgment; enough evidence must exist to enable a jury to reasonably find for the non-movant on the issue." Renchenski v. Williams, 622 F.3d 315, 324 (3d Cir. 2010)(quoting Giles v. Kearney, 571 F.3d 318, 322 (3d Cir. 2009)). And, 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." Id., quoting Wetzel v. Tucker, 139 F.3d 380, 383 n.2 (3d Cir. 1998). Further, "[w]hen opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment." Scott v. Harris, 550 U.S. 372, 127 S. Ct. 1769, 1776, 167 L. Ed. 2d 686 (2007). *fn6
A. Defendant's Entitlement to Summary Judgment on Plaintiff's Excessive Force Claim - Count I
By this motion, Defendants first move for the entry of judgment in their favor as a matter of law on Count I of the Plaintiff's Second Amended Complaint which seeks damages from Corporal Richwine and Officer Loux for the use of ...