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Sakeena S. Myrick v. Collingdale Borough and Police Officer Brian Fish

October 12, 2012


The opinion of the court was delivered by: Sitarski, M. J.


Currently pending before the Court is a motion for summary judgment filed by Defendants Collingdale Borough and Police Officer Brian Fish,*fn1 Doc. No. 22, and Plaintiff's response thereto. Doc. No. 24. For the following reasons, the motion will be GRANTED IN PART and DENIED IN PART.


Sakeena Myrick ("Plaintiff") initiated this lawsuit against Collingdale Borough and Police Officer Brian Fish ("Defendants") by filing a Complaint on April 26, 2011. Doc. No. 1. Plaintiff asserted various claims against Collingdale Borough and Officer Fish arising from an incident involving an automobile collision occurring on May 31, 2009. Id. at ¶¶ 68, 76-77.Defendants' filed a motion to dismiss; thereafter, Plaintiff agreed to withdraw the claims for deprivation of access to the courts (including First Amendment claims), due process claims and the state law invasion of privacy/false light claims. Doc. No. 8. As against Police Officer Brian Fish ("Fish"), Plaintiff first asserts claims under 42 U.S.C. § 1983 ("1983") for an alleged violation of her civil rights. Specifically, Plaintiff asserts claims of excessive force, false arrest, and malicious prosecution (Count II). Doc. No. 1; see also Doc. No 24-1. Plaintiff also brings pendent state law tort claims of assault and battery, false arrest, abuse of process, malicious prosecution and intentional infliction of emotional distress (Count V). Id. at ¶ 68. Finally, Plaintiff brings a negligence claim (Count VI). On October 19, 2011, Defendants filed an answer. Doc. No. 11.

On January 24, 2012, the parties consented to the exercise of jurisdiction by a United States Magistrate Judge under 28 U.S.C. 632(c) and Federal Rule of Civil Procedure 73, and the matter was referred to me. Doc. No. 14.

Discovery in this matter closed on May 30, 2012. Doc. No. 17. After the close of discovery, Plaintiff agreed to dismiss the Borough of Collingdale as a defendant on all federal claims. Doc. No. 24-1, at 3. Thus, only federal claims for excessive force, malicious prosecution and false arrest remain against Fish.

On June 15, 2012, Defendants filed the instant motion for partial summary judgment. Doc. No. 22. Defendants argue that summary judgment on the claim of excessive force and assault and battery is appropriate because the evidence "clearly establishes that the impact between the vehicle operated by Officer Fish and that of Plaintiff was accidental and unintended." Doc. No. 22, at 13. Defendants further argue that summary judgment on Plaintiff's claims of false arrest, abuse of process and malicious prosecution should be granted because it is undisputed that Fish had probable cause to take the actions that he took. Id. at 6-7. Defendants also argue that summary judgment is appropriate on the intentional infliction of emotional distress claim because Fish's actions were not "extreme or outrageous," and because Plaintiff has not provided the medical evidence required to support this claim. Id. at 7-8. Finally, Defendants argue that the federal claims against Fish are barred by qualified immunity. Id. at 3.

On July 6, 2012, Plaintiff filed a Response to Defendants' motion for summary judgment. Doc. No. 24. Plaintiff argues that there are triable issues of material fact for each claim, and thus summary judgment is inappropriate. Id.

The matter is now ripe for disposition.


A. The Parties

Plaintiff is a thirty-two year old woman currently residing in Philadelphia County, Pennsylvania, with her nine year old son, Caleb. Myrick Dep. at 6, 18. Since the incident at issue, she has been unemployed, and she has allegedly been suffering from a variety of physical ailments. Id. at 78.

Defendant Fish is currently a part-time officer in the Alden Borough Police Department. Fish Dep. at 8. On the date of the incident -- May 31, 2009 -- Fish was a part-time officer in the Collingdale Borough Police Department, where he worked from July 2007 through July 2011. Id. at 12. On the date of the incident, he was acting in his capacity as a police officer, and was in the middle of an eight hour shift. Id. at 18-19.

B. The May 31, 2009 Incident.

On May 31, 2009, Plaintiff was attending a barbecue at her cousin, Yolanda's, home, located in the Borough of Collingdale on Mildred Street, across from the local firehouse. Myrick Dep. at 18-19. Plaintiff left the barbecue at some point in the late afternoon to pick up her boyfriend, Lionell. Id. at 19. Plaintiff got into her mother's car, a Ford Explorer, which was parked on Mildred Street. Id. at 21. After getting into the car, she pulled up to the end of Mildred Street to take a right onto MacDade Boulevard ("MacDade"). Id. at 22. Plaintiff contends that she came to a complete stop at the stop sign at the intersection of Mildred and MacDade; Fish disputes this.*fn3 Id. at 23-24. Shortly after turning right onto MacDade, Plaintiff claims that she made eye contact with Fish, who was sitting in front of the firehouse, although his exact position is in dispute.*fn4 Id. at 25-26, 30-31. After Plaintiff passed the firehouse, Fish pulled onto the roadway and attempted to pull Plaintiff's vehicle over.*fn5 Fish Dep. at 34-36. Plaintiff turned right onto Rhodes Street shortly after passing the firehouse, apparently in order to "circle back around" to her cousin's house.*fn6 Myrick Dep. at 32.

After turning onto Rhodes Street, Plaintiff turned right into a driveway. *fn7 Myrick Dep. at 34-36. The driveway was positioned just beside a large building such that, from the corner of Rhodes and MacDade from which Fish was coming, one could not see past the building onto the driveway.*fn8 Fish Dep. at 46, Doc. No. 22, Ex. 4 at 9, 14. Fish, who had been following Plaintiff, also turned into the driveway. The front bumper of Fish's patrol car struck the rear of Plaintiff's car. Myrick Dep. at 39, Fish Dep. at. 50.

The exact circumstances of the collision are very much in dispute. Plaintiff asserts that her car was not moving, and she had her foot on the brake at the moment of impact. Myrick Dep. at 39. Fish asserts that he saw Plaintiff pulling into the driveway just as he was turning onto Rhodes Street. He further notes that Plaintiff's car disappeared behind the building, as described above. Fish Dep. at 40, 42-43. He testified that he pulled into the driveway to prevent Plaintiff's exit, because he believed she was attempting to elude him.*fn9 Fish Dep. 59. As he was pulling into the driveway, the two vehicles collided. Fish doesn't know how the collision occurred, but asserts that he was attempting to stop his vehicle. He testified that he had two feet on the brake pedal, and that his patrol car left skid marks on the road. Id. at 45; see also Doc. No. 22, Ex. 4 at 9-10. It is undisputed that the collision occurred as Fish was turning into the driveway.*fn10

C. Events after the Collision

Shortly after the collision, at least two other police officers arrived. In addition, Plaintiff's cousin Yolanda, her boyfriend, Melvin, as well as Plaintiff's boyfriend, Lionell, arrived. Myrick Dep. at 50. Plaintiff remained in her car. At some point, Fish learned that Plaintiff was complaining of leg pain. Fish Dep. at 61-62. An ambulance was called to the location, and Plaintiff was taken via ambulance to the hospital. Myrick Dep. at 58. Plaintiff was not arrested or charged with any crimes at the scene. Id. at 107; see also Fish Dep. at 73. At her deposition, Plaintiff testified that she heard nothing further from the police that day. Id. See also Fish Dep. at 73.

Fish relayed the events as he perceived them to the responding officers at the scene, discussed the appropriate charges to file, and then "went back to the station to do the actual charging of the offenses." Fish Dep. at 74. Fish later clarified in his deposition that the "actual charging of the offenses" entailed filling out an incident report.*fn11 Id. at 76. Fish also provided an "Affidavit of Probable Cause" that was sworn to and subscribed on June 2, 2009.*fn12 Id. at 75.

Subsequently, a warrant was issued for Plaintiff's arrest based on the Affidavit of Probable Cause provided by Fish. The Police Criminal Complaint listed the following offenses and corresponding "acts of accused associated with offense":

1. aggravated assault in violation of 18 Pa.Con.Stat. 2702(a)(2)

2. recklessly endangering another person in violation of 18 Pa.Con.Stat. 2705

3. stop signs violation of 75 Pa.Con.Stat. 3323

4. careless driving in violation of 75 Pa. Con. Stat. 3714

5. reckless driving in violation of 75 Pa.Con.Stat. 3736

6. fleeing or attempting to elude police officer in violation of 75 Pa.Con.Stat. 3733

7. trespass by motor vehicle in violation of 75Pa.Con.Stat..3717

8. duty of a driver on approach of emergency vehicle in violation of 75 Pa.Con.Stat. 3325 Doc. No. 22, Ex. 4 at 16-24. The warrant unit went to Plaintiff's house a few days after the collision and arrested her. Myrick Dep. at ...

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