The opinion of the court was delivered by: Timothy R. Rice U.S. Magistrate Judge
Plaintiff Erik D. Andrews sued defendant Scott W. Seales, a former National Park Service ranger, alleging constitutional violations arising from actions Seales took while arresting Andrews in Independence National Historical Park in September 2009. See generally 1st Am. Compl., Andrews v. Tunis, No. 11-1967 (E.D. Pa. July 7, 2011) [hereinafter Am. Compl.].*fn1
Specifically, Andrews claims Seales violated his First, Fourth, and Fifth Amendment rights when Seales used a TASER device and then pushed Andrews' head against a cobblestone street while placing Andrews in handcuffs. Id. Seales seeks summary judgment. See Def.'s Mot. Summ. J., Andrews v. Seales, No. 11-1967 (E.D. Pa. June 29, 2012); Mem. Law Supp. Def.'s Mot. Summ. J., Andrews v. Seales, No. 11-1967 (E.D. Pa. June 29, 2012) [hereinafter Def.'s Br.]. For the reasons that follow, Seales' motion is granted as to Andrews' First and Fifth Amendment claims, as well as his Fourth Amendment claim to the extent it challenges Seales' use of his TASER.
Even assuming Andrews' description of the relevant events is accurate, no reasonable jury could conclude Seales' use of his TASER was objectively unreasonable under the circumstances he confronted. Seales is entitled to qualified immunity with respect to his use of the TASER in any event. Additionally, Andrews' First and Fifth Amendment claims amount to unsuccessful efforts to reformulate his Fourth Amendment claim into additional allegations of constitutional harm. Andrews, however, has raised a genuine factual dispute as to whether Seales' actions after he fired his TASER rose to the level of excessive force. That portion of Andrews' Fourth Amendment claim will proceed to trial.
On September 12, 2009, Andrews and a friend watched the end of a baseball game at the City Tavern near Second and Walnut Streets in Philadelphia. Andrews Dep. at 21-23.*fn3 The two men left the bar after dark, and Andrews, who was unfamiliar with the neighborhood, followed his friend, intending to locate a bus or train that would take him home. Id. at 23-24, 36. While walking down Dock Street, Andrews and his friend were stopped by Seales and Tunis, who were charged with investigating two individuals causing a disturbance in the area. Id. at 31, 37-38; see also Statement Undisputed Material Facts at ¶ 6, Andrews v. Seales, No. 11-1967 (E.D. Pa. June 29, 2012) [hereinafter Def.'s SUMF]; Pl.'s Resp. Def.'s Statement Undisputed Material Facts at ¶ 6, Andrews v. Seales, No. 11-1967 (E.D. Pa. July 10, 2012) [hereinafter Pl.'s SUMF].
Andrews concedes the stop was lawful. See Pl.'s SUMF at 1 ("The initial cause for the stop of [Andrews] by [Seales] is not in dispute.").
Andrews and his friend both provided identification to the rangers. Andrews Dep. at 51.
While Seales contacted a dispatcher to ascertain whether either man was the subject of any warrants, Andrews was cooperative and waited with his friend on a nearby bench. Def.'s SUMF at ¶¶ 11, 15; Pl.'s SUMF at ¶¶ 11, 15. After learning Andrews was wanted for a probation violation and unpaid parking tickets, and that the Philadelphia Warrant Division wanted the rangers to take him into custody, Seales informed Andrews there was a warrant for his arrest. Andrews Dep. at 33, 57; Def.'s SUMF at ¶¶ 12-14, 17-18, 20; Pl.'s SUMF at ¶¶ 12-14, 17-18, 20. Seales also ordered Andrews not to move. Andrews Dep. at 33, 57-59.
Andrews admits he disregarded Seales' order and, instead, began to back away from Seales, stating he was returning to the City Tavern and asking Seales to follow him. Id. at 33, 57, 60. Then, Andrews turned away from Seales and began to "walk real fast in a real haste" down the street. Id. at 33; see also id. at 63 (stating he moved "in a haste . . . in a fast haste, like fast motion"); id. at 67 (agreeing he had been "in a run" before he felt the TASER hit). In response, Seales shot Andrews with his TASER. Def.'s SUMF at ¶ 38; Pl.'s SUMF at ¶ 38. Andrews fell to the ground and struck his face on the cobblestone street. Andrews Dep. at 66-68.
From that point on, the parties' versions of events diverge. For purposes of this motion, I will recount the remaining facts as they have been described by Andrews. See Ray, 626 F.3d at 173. Andrews testified he saw a flash, was stunned for a few seconds, and then tried to raise his head to look around. Andrews Dep. at 69. He asked Seales, who was standing over him, what happened; Seales told him to "shut up." Id. at 69-70. Andrews felt Seales kneel on his back and "slam" his face into the ground twice before placing Andrews in handcuffs. Id. at 70-73. Andrews then had difficulty breathing and passed out, regaining consciousness only after he had arrived at a local hospital. Id. at 74-76.
Following the Dock Street incident, Andrews was charged with, and convicted of, a federal summary offense for "threatening or interfering with a government function." Def.'s SUMF at ¶¶ 50-51; Pl.'s SUMF at ¶¶ 50-51. That conviction, which Andrews has not appealed, was "[b]ased on his flight from arrest" during the incident at issue here. Def.'s SUMF at ¶ 50; Pl.'s SUMF at ¶ 50.
II. SUMMARY JUDGMENT STANDARD
Entry of summary judgment is appropriate only where "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). I must "view the facts and draw inferences in the light most favorable to the nonmoving party." Ray, 626 F.3d at 173. A genuine dispute as to a material fact exists when "there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Facts that could alter the outcome are 'material,' and disputes are 'genuine' if evidence exists from which a rational person could conclude that the ...