The opinion of the court was delivered by: Mitchell, Magistrate Judge:
MEMORANDUM OPINION AND ORDER
Presently before the Court is the defendants' motion for partial summary judgment on Counts I, II and IV of the amended complaint. For reasons discussed below, the defendants' motion for partial summary judgment (Document No. 33) will be denied.
The plaintiff, Sean Kane, has filed a civil rights amended complaint against two police officers employed by the City of Beaver Falls, PA: Robert E. Hiler and Michael Seybert.*fn1 The plaintiff contends that on August 22, 2009, Officers Hiler and Seybert violated his First and Fourth Amendment rights when they used excessive force against him and arrested him without probable cause after he criticized the City of Beaver Falls Police Department.
The record shows that in the afternoon of August 22, 2009, the plaintiff drove to the house of Timothy Tunno, an employee of the plaintiff's landscaping business (Defendants' Statement of Material Facts ["DSMF"] at ¶ 4 and Plaintiff's response thereto). Tunno's house is located on 11th Street in Beaver Falls, PA (Id. at ¶ 5), and the plaintiff drove there to give Tunno a gas card (Plaintiff's deposition at p. 68). Tunno had been using the plaintiff's work truck, and he parked the vehicle on 11th Street (DSMF at ¶ 7 and Plaintiff's response thereto). Tunno's neighbor, Mark Anthony Waldron, resided two houses away from Tunno's residence, and Waldon took issue with the parking space in which Tunno had parked the vehicle, as it was partially in front of Waldron's residence, and Waldron insisted that the space was intended for his mother to park when she returned from work (Id. at ¶¶ 6-8).
When the plaintiff arrived at the scene, he exited his car and witnessed Waldron and Tunno yelling at each other outside of Waldron's house (Id. at ¶ 9). The plaintiff intervened, and tried to explain to Waldron that Tunno would soon be leaving in the truck, but Waldron began hitting him with his fists (Plaintiff's deposition at pp. 68-69, 79-80). The plaintiff testified that Waldron hit him numerous times in the head, and that he feared for his life (Id. at p. 69). Following the altercation, the plaintiff went to his vehicle and called 911 (DSMF at ¶ 11 and Plaintiff's response thereto).
The defendants were dispatched by Beaver County 911 and directed to 11th Street and 10th Avenue in Beavers Falls (Id. at ¶ 12). A few minutes after the plaintiff's call, the defendants arrived at the scene in uniform and traveling in marked patrol vehicles (Id. at ¶ 14). At that time, the plaintiff was in or near his vehicle, and Waldron was standing on the porch of his residence (Id. at ¶ 16). As to Waldron, the defendants knew him as a dangerous individual who had previously been arrested by the Beaver Falls Police Department for violent crimes (Id. at ¶ 17).
Officer Hiler exited his patrol vehicle and approached the plaintiff to discuss the incident, at which time Hiler observed no visible injuries on the plaintiff (Id. at ¶¶ 19-20). Meanwhile, Officer Seybert approached Waldron to discuss his physical altercation with the plaintiff, and Seybert observed no visible injuries on Waldron (Id. at ¶¶ 21-22).
At that juncture, the plaintiff was standing in the middle of the street, and he demanded that Waldron be arrested for assault (Id. at ¶ 23). Officer Hiler testified that the plaintiff was loud and irate about wanting Waldron arrested, and he told the plaintiff several times to calm down (Officer Hiler's deposition at pp. 16-18, 24). Based on the officers' preliminary investigation, they conferred with one another about how to handle the situation (DSMF at ¶ 25 and plaintiff's response thereto).
Having heard both the plaintiff's and Waldron's version of events, and observing no physical injury to either of them, the officers determined that there was insufficient evidence to charge either party with assault (Id. at ¶ 27). Instead, the defendants agreed that non-traffic citations would be issued to the plaintiff and to Waldron for their physical altercation (Id. at ¶ 29). Officer Hiler informed the plaintiff that Waldron would not be arrested for assault (Id. at ¶ 31). Hiler asserts that he also told the plaintiff that Waldron would be issued a citation for either harassment or disorderly conduct (DSMF at ¶ 31).
The plaintiff was dissatisfied with how the defendants were going to handle the situation, and he demanded that they arrest Waldron (DSMF at ¶ 32 and plaintiff's response thereto). Officer Hiler testified that he told the plaintiff to calm down, as they were in the middle of the street, and other people were coming into the area (Officer Hiler's deposition at p. 24). However, the plaintiff testified that other than himself and the two officers, the only people in the area were Tunno (his employee), Mark Medlin (a friend who accompanied the plaintiff to the scene in the plaintiff's vehicle), and Rashada Clanton and her mother, Dorothy Clanton (who live in the neighborhood) (Plaintiff's deposition at pp. 69-70, 75, 89, 107-08).
The record shows that Officer Hiler told the plaintiff several times that he needed to get in his vehicle and leave the scene (DSMF at ¶ 34 and plaintiff's response thereto). The plaintiff admits that the officers told him to leave the area twice (Plaintiff's response to DSMF at ¶ 34). According to the defendants, the plaintiff ignored their orders to leave the scene, and he continued to demand that they arrest Waldron for assault (DSMF at ¶¶ 36-37).
However, the plaintiff contends that after the defendants told him to leave the area a second time, he turned to get into his vehicle to leave, at which time he said: "This is a fuckin' joke. This is the reason that Beaver Falls is in the fuckin' condition it's in." (Plaintiff's deposition at pp. 83-85). According to the plaintiff, after he made the statements, Officer Seybert grabbed him, put him in a choke hold, pushed him against the car, and forced him to the ground, where he landed on his left arm (Id. at pp. 85-88).
The defendants arrested the plaintiff, handcuffed him, placed him in a police vehicle and transported him to the police station (DSMF at ¶ 41 and plaintiff's response thereto). Officer Hiler issued the plaintiff a non-traffic citation for disorderly conduct pursuant to 18 Pa.C.S. § 5503(a)(4), and the plaintiff left the police station (Id. at ¶ 44). On August 24, 2009, Officer Hiler issued Waldron a non-traffic citation for disorderly conduct pursuant to 18 Pa.C.S. § 5503(a)(1) (Id. at ¶ 45).
The plaintiff asserts that as a result of the incident, he felt pain in his left shoulder and went to the Heritage Valley Beaver Emergency Department, where he was examined and released (Plaintiff's Declaration at ¶ 27). The plaintiff was seen by Dr. Carl Sestito, his family physician, and Dr. Donald Campbell for his shoulder pain (Id. at ¶ 29). The plaintiff avers that he sustained a strained shoulder as a result of the incident and was humiliated by the officers' conduct (Id. at ¶ 28). The ...