Clyde PRICE, Plaintiff, v. CITY OF PHILADELPHIA, et al., Defendants, 239 F. Supp. 3d 876

MEMORANDUM EDUARDO C. ROBRENO, District Judge Table of Contents I. INTRODUCTION ...883 II. FACTUAL BACKGROUND .. .883 III. PROCEDURAL HISTORY .. .885 IV. LEGAL STANDARD .. .886 V. DISCUSSION ...887 A. Plaintiff’s 42 U.S.C. § 1983 Claims.. .888 1. Count One: Retaliation... 888 2. Count Two: Excessive Force.. .891 a. Officer Simmons... 892 b. Officer Little.. .894 3. Count Three: Unreasonable Search and Seizure... 894 a. Seizure.. .896 b. Search.. .898 4. Count Four: Equal Protection. . .899 B. Plaintiff’s State Law Claims,. .901 1. Counts Five and Six: False Arrest and False Imprisonment ... 901 2.

Count Seven: Abuse of Process. . .903 3. Count Eight: Malicious Prosecution. . .904 C. Punitive Damages... 905 VI. CONCLUSION ...905 I. INTRODUCTION In this action, Plaintiff Clyde Price (“Plaintiff’), proceeding pro se, alleges that Philadelphia Police Officers Tyrone Simmons (“Officer Simmons”) and James Little (“Officer Little”) -wrongfully stopped, searched, and arrested him, using excessive force, in retaliation for Plaintiffs previous filing of a lawsuit against the Philadelphia Police Department.

Plaintiff brings claims under 42 U.S.C. § 1983 and Pennsylvania state law against the City of Philadelphia (“the City”), Officer Simmons, Officer Little, and former Philadelphia Police Commissioner Charles Ramsey (“Former Commissioner Ramsey”) (“collectively, “Defendants”). After the Court granted Defendants’ motion to dismiss as to the City, but denied the motion as to Officer Simmons, Officer Little, and Former Commissioner Ramsey, Defendants deposed Plaintiff. The remaining Defendants now move for

summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiff has also filed a motion to strike Defendants’ motion for

summary judgment. For the reasons discussed below, the Court will grant in part and deny in part Defendants’ motion for

summary judgment. The Court will grant Defendants’ motion for

summary judgment with respect to all of Plaintiffs claims against Officer Little and Officer Simmons, with the exception of Plaintiffs claims against Officer Simmons under 42 U.S.C. § 1983 for (1) excessive force and (2) unreasonable search and seizure in violation of the Fourth Amendment. The Court will also deny Plaintiffs motion to strike Defendants’ motion for

summary judgment. II. FACTUAL BACKGROUND The facts of this case are relatively straightforward. On April 13, 2013, Plaintiff became involved in an argument with a female acquaintance near the corner of Lindenwood and Jefferson Streets in Philadelphia, Pennsylvania. Price Dep. 13:14— 16, 16:1-2, 17:7-24, Nov. 6, 2016, Defs.’ Mot. Summ. J. Ex. A, EOF No. 19-1; Simmons Decl. ¶¶ 3-6, Defs.’ Mot. Summ. J. Ex. B, EOF No. 19-2. Officers Simmons and Little, on patrol in the area, observed the dispute. Price Dep. 23:2-10, Simmons Decl. ¶¶ 6-7.

According to Plaintiff, he and his acquaintance yelled at each other, and she moved her hands in front of Plaintiffs face. Price Dep. 22:20-23:10. While Officer Simmons refers to the interaction between Plaintiff and his acquaintance as “an altercation,” and Officer Little claims that he “observed the female grabbing [Plaintiff] by his collar,” it is undisputed that Plaintiff did not-touch his acquaintance during the course of their argument. Simmons Decl. ¶ 6; Little Decl. ¶ 6, Defs.’ Mot. Summ. J. Ex. O, EOF No. 19-3.

After observing the argument, Officer Simmons and Officer Little approached Plaintiff and his acquaintance. Price Dep. 24:2-10; Simmons Decl. ¶¶ 6-7. At some point during their approach, Plaintiff started moving away from the officers. At that time, Officer Simmons grabbed Plaintiff and placed him in handcuffs. Price Dep. 24:7-8,26:6-6; Simmons Decl. ¶ 9. Plaintiff testified that after Officer Simmons approached Plaintiff and before he placed Plaintiff in handcuffs, he “threw” Plaintiff against the police vehicle with “force, but not with that much force.” Price Dep. 24:7-8, 25:5-6, 28:24-29:7.

Officer Simmons does not make any statement regarding his physical interaction with Plaintiff, and Officer Little states that he walked away to speak with Plaintiffs acquaintance after Officer Simmons placed Plaintiff in handcuffs. See Little Decl. ¶¶ 10-11. The parties do not dispute that after Officer Simmons placed Plaintiff in handcuffs, he searched Plaintiff and located a pocketknife and several bags containing a substance that was later discovered to be crack cocaine. Price Dep. 25:5-12, 42:11-43:19; Simmons Decl. ¶¶ 12-20. Officer Simmons then placed Plaintiff under arrest. Simmons Decl. ¶ 18.

Plaintiff alleges that he was in custody from April 13, 2013, until August 8, 2013, at which time his motion to suppress the evidence gathered during Officer Simmons’ search was granted and he was released from prison. Am. Compl. ¶ 13, EOF No. 11. At his deposition, Plaintiff testified that the evidence was suppressed following a hearing before a magistrate judge, and that all charges against him were ultimately withdrawn. Price Dep. 38:20-39:12.

Plaintiff believes that the evidence was suppressed on the basis of Officer Simmons’ lack of probable cause for the search and failure to inform Plaintiff of his Miranda rights prior to questioning him. Id. at 41:2-6. III. PROCEDURAL HISTORY Plaintiff filed this action on April 10, 2015, initially bringing claims against the City, the Philadelphia Police Department (the “PPD”), and a John Doe police officer. ECF No. 1. Plaintiffs complaint was deemed filed on April 17, 2015, after the Court granted him in forma pauperis status. ECF Nos. 2, 3.

The Court immediately dismissed Plaintiffs claims against the PPD as legally baseless, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i), after finding that the PPD is not a separate legal entity from the City subject to suit under 42 U.S.C. § 1983. ECF No. 2. On June 30, 2015, the City answered Plaintiffs complaint, asserting, affirmative defenses of (1) failure to state a claim upon which relief can be granted and (2) sovereign immunity under Pennsylvania’s Political Subdivision Tort Claims Act, 42 Pa. Const. Stat. §§ 8541-42. ECF No. 6.

The City then filed a motion for judgment on the pleadings, ECF No. 9, which Plaintiff did not oppose. , On August 28, 2016, following a hearing, the Court dismissed Plaintiffs Complaint with prejudice as to the City, and without prejudice as to the individual. John Doe police officer. ECF No. 10. The Court also (1) granted Plaintiff leave to file an amended complaint naming Officer Simmons as a defendant; (2) granted Defendant leave to take Plaintiffs deposition following the filing of the amended complaint; and (3) ordered Defendant to file a motion for

summary judgment following the deposition. Id. Plaintiff filed his Amended Complaint on September 21, 2015, adding Former Commissioner Ramsey and Officers Simmons and. Little as defendants, and reasserting claims against the City; ECF No. 11. In his Amended Complaint, Plaintiff alleges that, prior to the April 13, 2013, incident, he had filed a previous lawsuit against the 19th District of the Philadelphia Police Department.

Id. at ¶15, He alleges that Officers Simmons and Little stopped, searched, and arrested him during the incident at issue in this case in retaliation for his filing of the previous lawsuit. .Id. at ¶¶ 11-12,15., • Plaintiff asserts claims under 42 U.S.C. § 1983 and Pennsylvania state law for (1) retaliation; (2) excessive force; (3) unreasonable search and seizure; (4) violation of equal protection rights; (5) false arrest; (6) false imprisonment; (7) abuse of process; (8) malicious prosecution; (9) intentional infliction of emotional distress; (10) respondeat superior liability as to the City and Former Commissioner Ramsey; (11) supervisory liability as to the City and Former Commissioner Ramsey; and (12) violation of Plaintiffs Miranda rights.

Id. Plaintiff seeks a declaratory judgment that Defendants’ actions' violated his rights, $500,000 in ‘ compensatory damages, $500,000 in punitive damages, and reasonable costs and fees. Jd. Rather than following the Court’s instruction to take Plaintiffs deposition, on October 6, 2015, Defendants moved to dismiss. and/or strike Plaintiffs Amended Complaint, ECF No. 12, which Plaintiff opposed, ECF No. 13. The Court granted Defendants’ motion to dismiss as to Plaintiffs claims against the City, but denied the motion with respect to the other Defendants. ECF No. 17.

The Court again instructed Defendants to file a motion for

summary judgment after taking Plaintiffs deposition. Id. The remaining Defendants took Plaintiffs deposition in November 2015, and they filed a motion for

summary judgment with respect to all claims asserted against them on February 8, 2016. ECF No. 19. Following a telephone conference with the parties, the Court stayed Plaintiffs claims against Former Commissioner Ramsey pending a ruling on Defendants’ motion for

summary judgment as to the claims against Officers Simmons and Little. ECF No. 20. The Court explained that, because Plaintiffs claims against Former Commissioner Ramsey are based on a theory of supervisory liability for the acts of Officers Simmons and Little, if Plaintiffs claims against the officers do not survive

summary judgment, there is no need for the Court to consider Plaintiffs claims against Ramsey. Id. Plaintiff filed a response in opposition to Defendants’ motion for

summary judgment, ECF No. 22, as well as a separate “Motion to Strike and or Deny Defendant’s Motion for

Summary Judgment,” ECF No. 23. Defendants’ motion for

summary judgment is now ripe for disposition. IV. LEGAL STANDARD

Summary judgment is appropriate if there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). “A motion for

summary judgment will not be defeated by ‘the mere existence’ of some disputed facts, but will be denied when there is a genuine issue of material fact.” Am. Eagle Outfitters v. Lyle & Scott Ltd., 584 F.3d 575, 581 (3d Cir. 2009) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

A fact is “material” if proof of its existence or nonexistence “might affect the outcome of the suit under the governing law,” and a dispute is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The Court views the facts in the light most favorable to the nonmoving party. “After making all reasonable inferences in the nonmoving party’s favor, there is a genuine issue of material fact if a reasonable jury could find for the nonmoving party.” Pignataro v. Port Auth., 593 F.3d 265, 268 (3d Cir. 2010).

In short, the essential question is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson, 477 U.S. at 251-52, 106 S.Ct. 2505. A document filed pro se is to be “liberally construed” and “a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976)).

In addition, when considering a motion in a pro se plaintiffs proceedings, a court must “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.” Holley v. Dep’t of Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999). However, on a motion for

summary judgment, “a pro se plaintiff is not relieved of his obligation under Rule 56 to point to competent evidence in the record that is capable of refuting a defendant’s motion for

summary judgment.” Ray v. Fed. Ins. Co., No. 05-2507, 2007 WL 1377645, at *3 (E.D. Pa. May 10, 2007). “[Mjerely because a non-moving party is proceeding pro se does not relieve him of the obligation under Rule 56(

e) to produce evidence that raises a genuine issue of material fact.” Boykins v. Lucent Techs., Inc., 78 F.Supp.2d 402, 408 (E.D. Pa. 2000). V. DISCUSSION In their motion for

summary judgment, Defendants first argue that all of Plaintiffs federal claims against Officer Little and Former Commissioner Ramsey fail as a matter of law because neither of those Defendants participated in the alleged wrongs, as required for a claim brought pursuant to 42 U.S.C. § 1983. See Defs.’ Mem. Law Support Mot. Summ. J., ECF No. 19, 8-10 [hereinafter Defs.’ Mem.]. Next, Defendants argue that Plaintiff fails to demonstrate a genuine issue of material fact with respect to every one of his claims. See id. at 10-27.

Defendants further argue that Plaintiffs federal claims against Officers Simmons and Little are barred by the doctrine of qualified immunity, and that Plaintiffs state law claims are barred by the Pennsylvania Tort Claims Act. See id. at 27-30. Finally, Defendants argue that Plaintiff is not entitled to punitive damages. See id. at 30. In response, Plaintiff argues that, with the exception of his Miranda claim and his claim for intentional infliction of emotional distress, both of which he concedes are not viable, there are genuine issues of material fact with respect to each of his federal and state claims.

See PL’s Mem., ECF No. 22. He also argues that Defendants are not entitled to qualified immunity because his constitutional rights were clearly established, id. at 22-23, and that he is entitled to punitive damages, id. at 15-17. Plaintiff also filed a separate motion to strike and/or deny Defendants’ motion for

summary judgment on the basis that Defendants failed to file a separate statement of undisputed material facts, which Plaintiff avers is required under the Local Rules. PL’s Mot. to Strike, ECF No. 23. As neither the Local Rules of Civil Procedure nor this Court’s Outline of Pretrial and Trial Procedures requires a party moving for

summary judgment to submit a separate statement of undisputed material facts, the Court will deny Plaintiffs motion to strike. A. Plaintiffs 42 U.S.C. § 1983 Claims Plaintiff brings claims against Officers Simmons and Little under 42 U.S.C. § 1983 for (1) retaliation (Count One); (2) excessive force in violation of the Fourth Amendment (Count Two); (3) unreasonable search and seizure in violation of the Fourth Amendment (Count Three); (4) violation of the Fourteenth Amendment’s Equal Protection Clause (Count Four); and (5) a Miranda violation (Count Twelve). Am. Compl. ¶¶ 18-25, 40,

Section 1983 provides a civil’remedy for the “deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” 42 U.S.C. § 1983. “Section 1983 does not by itself confer substantive rights, but instead provides a remedy for redress when a constitutionally protected right has been violated.” Goff v. Kutztown Univ., 63 F.Supp.3d 475, 480 (E.D. Pa. 2014) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816, 105 S.Ct. 2427, 85 L.Ed.2d 791 (1985)).

With respect to each of Plaintiffs § 1983 claims, Defendants argue that Plaintiff has failed to establish a violation of a constitutional right as a matter of law. See Defs.’ Mem. at 10-14, 20-24, 26-27; Defendants further argue that, to the extent any issue of material fact exists with respect to the violation of Plaintiffs constitutional rights, qualified immunity protects Officers Simmons and Little from liability. See id. at 27-28. Defendants also argue that Plaintiffs federal claims against Officer Little and Former Commissioner Ramsey fail because neither of them participated in the alleged wrongdoings.

Id. at 8-10. For the reasons discussed below, all of Plaintiffs claims against Officers Simmons and Little under § 1983 fail as a matter of law, with the exception of Plaintiffs claims against Officer Simmons for excessive force and unreasonable search and seizure in violation of the Fourth Amendment. 1. Count One: Retaliation Count One of Plaintiffs'complaint alleges that Officers Simmons and Little violated. Plaintiffs right to be free from retaliation for protected Frist Amendment conduct. Am. Compl. ¶ 19.

Specifically, Plaintiff alleges that- Officers Simmons and Little arrested and detained him in retaliation for filing a previous lawsuit against other police officers in their district. Id. To prevail on a First Amendment retaliation claim, a plaintiff must prove “(1) constitutionally protected conduct, (2) retaliatory action sufficient to deter a person of ordinary firmness from exercising his constitutional rights,‘and'(3) a causál link between .the constitutionally protected conduct and the retaliatory action.” Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing Mitchell v.

Horn, 318 F.3d 523, 530 (3d Cir. 2003)). Defendants do not appear to dispute that Plaintiffs filing of his previous civil action is protected First Amendment conduct. . Instead, Defendants argue that Plaintiffs retaliation claim fails as a matter of law because

(1) Plaintiff has not demonstrated that criminal charges were pressed against him without probable cause; and

(2) Plaintiff cannot prove that Officers Simmons and Little were aware of his previous lawsuit or that it motivated their actions. Defs.’ Mem. at 20-22. In response, Plaintiff argues that there is a factual dispute regarding causation because

(1) Plaintiff was treated differently from a similarly situated person, the woman with whom he had an argument; (2) the charges filed against Plaintiff were eventually dropped; and

(3) Plaintiff settled a previous lawsuit for similar conduct. PL’s Mem. at 19-21. In support of their first argument, Defendants contend that “when the alleged retaliation is a criminal prosecution, the plaintiff must also demonstrate that the underlying criminal charges were pressed without probable cause.” Defs.’ Mem. at 20-21 (citing Hartman v. Moore, 547 U.S. 250, 265-66, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006)). Because, Defendants argue, Officer Simmons had probable cause to arrest Plaintiff, Plaintiff cannot bring a retaliation claim based on the arrest. Id. at 21.

In Hartman, the Supreme Court held that the absence of probable cause “must be pleaded and proven” for a plaintiff to prevail on “a claim that prosecution was induced by an official bent on retaliation” in an action brought under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). 547 U.S. at 265-66, 126 S.Ct. 1695. Defendants are correct that Officer Simmons indisputably had probable cause to arrest Plaintiff, as Plaintiff concedes that the arrest occurred after Officer Simmons located drugs on Plaintiffs person. See Price Dep. 43:16-19.

Here, however, unlike the plaintiff in Hartman, Plaintiff alleges that his arrest was the retaliatory action,- not his prosecution. Am.- Compl. ¶ 19 (alleging that “this arrest was provoked by [retaliation]”). Thus, Hartman does .not itself bar Plaintiffs claim. Further, in Reichle v. Howards, 566 U.S. 658, 132 S.Ct. 2088, 182 L.Ed.2d 985 (2012), the Supreme Court explicitly declined to extend Hartman’s probable cause rule to retaliatory arrests, as, opposed to retaliatory prosecutions, see id. at 2096, and it is unclear whether Hartman applies to retaliatory arrests in this Circuit.

In any event, the Court need not decide whether to apply the Hartman rule to a retaliatory arrest in this case, because Plaintiffs claim fails for the separate reason that Plaintiff has not established a causal connection between the filing of his lawsuit and the allegedly retaliatory arrest, as required to prevail on a First Amendment retaliation claim. Plaintiff has not presented any facts, either in his Amended Complaint or at his deposition, suggesting that either Officer Simmons or Officer Little was aware of his prior action against the Philadelphia Police Department.

The Third Circuit has generally required a plaintiff to establish that the defendant is aware of the protected activity in order to prevail on a First Amendment retaliation claim. See Gorum v. Sessoms, 561 F.3d 179, 188 (3d Cir. 2009) (citing Ambrose v. Twp. of Robinson, 303 F.3d 488, 493 (3d Cir. 2002) (explaining that “[i]t is only intuitive that for protected conduct to be a substantial or motivating factor in a decision, the decisionmakers must be aware of the protected conduct”)).

Thus, Plaintiffs failure to establish Officer Simmons’ and Officer Little’s awareness of his constitutionally protected conduct itself precludes a finding of a causal connection. Further, to establish a causal connection, Plaintiff must “prove either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing.” Lauren W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007). Plaintiff has not produced either type of evidence.

Plaintiffs complaint does not contain any allegations relating to the timing of the filing of his lawsuit against the Philadelphia Police Department, with the exception of Plaintiffs conclusory statement that “causation .... can be shown, through ... the temporal proximity of arrest.” Am. Compl. ¶19. However, at his deposition, Plaintiff stated that he filed the lawsuit in 2011. Price Dep. 10:12-14. The allegedly retaliatory action took place on April 13, 2013. Id. at 13:12-16. Based on these facts, at least sixteen months elapsed between the protected activity and the allegedly retaliatory action.

That time period is simply too long to be “an unusually suggestive temporal proximity” that creates an inference of causation. See, e.g., Marra v. Phila. Hous. Auth., 497 F.3d 286, 303 n.14 (3d Cir. 2007) (noting it is “undoubtedly correct” that a nine-month time period between protected activity and alleged retaliation, standing alone, is not sufficient to create an inference of causation); Estate of Smith v.

Marasco, 318 F.3d 497, 512 (3d Cir. 2003) (“[W]e have held that such an inference could be drawn where two days passed between the protected activity and the alleged retaliation, but not where 19 months had elapsed.” (citations omitted)). In the absence of an “unusually suggestive” temporal proximity, Plaintiff must establish a “pattern of antagonism coupled with timing,” which he has not done. DeFlaminis, 480 F.3d at 267. Plaintiff stated at his deposition that he has had “incidents where [he was] pulled over by police in the same district.” Price Dep. 12:16-13:6.

However, Plaintiff claimed that the officers involved in those incidents made comments about his previous conviction for assault, not his previous lawsuit against the Philadelphia Police Department, which he alleges motivated Officer Simmons’ and Little’s actions. See id. Plaintiff does not allege any other antagonistic events, and in any case, Plaintiff does not allege that Officers Simmons or Little, specifically, had ever interacted with him at all aside from the day in question.

Based on these facts, there is simply no evidence in the record from which a reasonable juror could conclude that there exists a causal link between Plaintiffs filing of his lawsuit against the Philadelphia Police Department in 2011 and the incident with Officers Simmons and Little on April 13, 2013. Accordingly, the Court will grant Defendants’ motion for

summary judgment with respect to Plaintiffs retaliation claim against Officers Simmons and Little. 2. Count Two: Excessive Force In Count Two, Plaintiff brings a claim for excessive force in violation of the Fourth Amendment, alleging that Officers Simmons and Little used excessive force by grabbing and handcuffing Plaintiff without cause. Am. Compl. ¶21. At his deposition, Plaintiff stated that Officer Simmons “threw” Plaintiff up against the police car and handcuffed him after Plaintiff walked away from the police officers. Price Dep. 28:24-29:1.

Plaintiff stated that he was thrown against the car “[w]ith force, but not with that much force,” id. at 29:6-7, and has admitted that he suffered no physical injuries from the incident, id. at 48:4-6. Defendants’ primary argument in support of their motion for

summary judgment on Plaintiffs excessive force claim is that “[s]uch minimal use of force” is insufficient to state a claim for excessive force. Defs.’ Mem. at 10-11. Whether a police officer used excessive force in violation of a citizen’s Fourth Amendment rights depends on whether the amount of force used was “objectively reasonable.” Graham v. Connor, 490 U.S. 386, 397, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also Curley v. Klem, 499 F.3d 199, 206 (3d Cir. 2007).

To determine objective reasonableness, the “nature and quality of the intrusion on the individual’s Fourth Amendment interests” is balanced “against the countervailing governmental interests at stake.” Graham, 490 U.S. at 396, 109 S.Ct. 1865 (quoting Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985)). Objective reasonableness is evaluated from “the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396, 109 S.Ct. 1865.

The Supreme Court has recognized that “police officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary in a particular situation.” Id. at 397, 109 S.Ct. 1865. For that reason, “ ‘[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers,’ violates the Fourth Amendment.” Id. at 396, 109 S.Ct. 1865 (quoting Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir. 1973)).

However, the “reasonableness” inquiry must be objective: “An officer’s evil intentions will not make a Fourth Amendment violation out of an objectively reasonable use of force; nor will an officer’s good intentions make an objectively unreasonable use of force constitutional.” Graham, 490 U.S. at 397, 109 S.Ct. 1865. Determining whether a particular police officer’s actions were objectively reasonable is a “highly individualized and fact specific” inquiry that requires a court to consider the “totality of the circumstances.” Santini v. Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (quoting Curley, 499 F.3d at 207).

Courts may consider “(1) the severity of the crime at issue, (2) whether the suspect poses an imminent threat to the safety of the police or others in the vicinity, and (3) whether the suspect attempts to resist arrest or flee the scene.” Id. at 417 (citing Graham, 490 U.S. at 396, 109 S.Ct. 1865).

Other relevant factors include “the possibility that the persons subject to the police action are themselves violent or dangerous, the duration of the action, whether the action takes place in the context of effecting an arrest, the possibility that the suspect may be armed, and the number of persons with whom the police officers must contend at one time.” Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir. 1997), abrogated on other grounds by Curley, 499 F.3d at 209-11. “The reasonableness of the use of force is normally an issue for the jury.” Rivas v.

City of Passaic, 365 F.3d 181, 198 (3d Cir. 2004); see also Groman v. Twp. of Manalapan, 47 F.3d 628, 634 (3d Cir. 1995) (reversing district court order granting

summary judgment for defendants on excessive force claim because there were “material issues of disputed fact and credibility determinations that cannot be decided on a motion for

summary judgment”). However, “summary judgment is appropriate if, as a matter of law, the evidence would not support a reasonable jury finding that the police officers’ actions were objectively unreasonable.” Groman, 47 F.3d at 634; see also Abraham v. Raso, 183 F.3d 279, 290 (3d Cir. 1999) (“[Defendants can still win on

summary judgment if the district court concludes, after resolving all factual disputes. in favor of the plaintiff, that the officer’s use of force was objectively.reasonable under the circumstances.” (quoting Scott v. Henrich, 39 F.3d 912, 915 (9th Cir. 1994))). a. Officer Simmons Contrary to Defendants’ assertions, Plaintiffs allegation that Officer Simmons threw him against the car is sufficient to state a claim for excessive force as a matter of law. An excessive force claim does not require proof of physical injury.

See Sharrar, 128, F.3d at 822 (“We do not agree that the absence of physical injury necessarily signifies that the force has not been excessive, although the fact that the physical force applied was of such an extent as to lead to injury is indeed a relevant factor to be considered as a part, of the totality.”). Indeed, courts in the Third Circuit have denied

summary judgment on excessive force claims in cases where a. police officer allegedly threw, slammed, or shoved a plaintiff against a vehicle. See, e.g., Wood v. Se. Pa. Transp. Auth., No. 14-4183, 2016 WL 2619411, at *7-9 (E.D. Pa. May 16, 2016) (determining that a reasonable jury could conclude that slamming the plaintiff against a vehicle was objectively unreasonable under the circumstances); Clifton v. Borough of Eddystone, 824 F.Supp.2d 617, 629-30 (E.D.

Pa. 2011) (concluding that “a reasonable jury could find ‘yanking’ [the] [p]laintiff out of the car and ‘slamming’ her against the trunk of the car were excessive” under the circumstances); Verdier v. Borough, 796 F.Supp.2d 606, 626-27 (E.D. Pa. 2011) (denying

summary judgment on excessive force claim where officer allegedly slammed the plaintiff against his car). While Plaintiff concedes that Officer Simmons’ use of force was minimal, there does not appear to have been much, if any, justification for the use of force at all. Taking the facts in the light most favorable to Plaintiff, he was engaged in a nonphysical, verbal dispute with a woman, and he attempted to walk away when police officers approached him.

Nothing in Plaintiffs behavior or actions suggested that Plaintiff was violent or dangerous, armed, or an imminent threat to the safety of the police officers or others in the vicinity.. It is unclear what crime the police officers suspected Plaintiff had committed or was committing prior to approaching him— even based on the officers’ own affidavits—and the “severity of the crime at issue” therefore cannot justify Officer Simmons’ use of force.

Nor does “the number of persons with whom the police officers must contend” suggest that force was necessary: neither party claims that Plaintiffs acquaintance was involved in the interaction between the officers and Plaintiff, and thus Plaintiff. was alone in an interaction with two police officers. The sole possible justification for Officer Simmons’ use of force is that Plaintiff walked away when the police'officers approached him. On this basis, Defendants argue, Officer Simmons was “entitled” to use “physical coercion” to “investigate the situation” involving Plaintiff and his female acquaintance.

Defs.’ Mem. at 11. However, this is not a case where Plaintiff was “actively resisting or attempting to evade arrest by flight,” see Graham, 490 U.S. at 397, 109 S.Ct. 1865. There is no indication that the police officers were attempting to arrest Plaintiff prior to the moment he started walking away, and there is a factual dispute as to whether Plaintiffs actions constituted “flight” at all. Plaintiff stated that he was only walking, not running, away, and that he did so solely because he had previously had negative interactions with police officers. Price Dep. 27:2-28:7.

Construing the facts in the light most favorable to Plaintiff, there are genuine issues of material fact regarding whether Plaintiffs actions justified Officer Simmons’ use of force against him. A reasonable jury could find that Officer Simmons’ use of force was excessive under the circumstances. Therefore, the "Court cannot conclude that Officer Simmons’ use of force against Plaintiff was objectively reasonable as a matter of law. Defendants argue that even if there are issues of material fact with respect to Plaintiffs excessive force claim, the Court should grant

summary judgment for Defendants on that claim because Officer Simmons is entitled to qualified immunity as a matter of law. The Court disagrees. “[Qualified immunity protects government officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)).

The doctrine balances “the need to hold public officials accountable when they exercise power irresponsibly” with “the need to shield officials from harassment, distraction, and liability when they -perform their duties reasonably.” Id. ’ To determine whether qualified immunity bars a plaintiffs constitutional claims, a court evaluates “(1) whether the plaintiff has alleged the deprivation of an actual constitutional right, and if so, (2) whether the right was clearly established at the time of the alleged violation.” United Artists Theatre Circuit, Inc. v.

Twp. of Warrington, 316 F.3d 392, 398 (3d Cir. 2003) (citing Saucier v. Katz, 533 U.S. 194, 200, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). In Pearson, the Supreme Court clarified that the order of the inquiry is not mandatory, and a district court may use its discretion to consider thése two steps in whichever order “will best facilitate the fair and efficient disposition of each case.” 555 U.S. at 242, 129 S.Ct. 808. - On a motion for

summary judgment, it is appropriate for a district court to consider the issue of qualified immunity “where the dispute does not turn upon ‘which facts the parties might be able to prove, but, rather, whether or not- certain given-facts showed a violation of clearly established law.’ ” Reilly v. City of Ath City, 532 F.3d 216, 234 (3d Cir. 2008) (quoting Wright v. City of Phila., 409 F.3d 595, 599 (3d Cir. 2005)). If the facts relevant to. that determination “are intensely disputed, .... [Third Circuit] precedent makes clear that such disputes must be resolved by a jury after a trial.” Curley, 499 F.3d at 208.

Here, there are disputed issues of material fact regarding both the amount of force used and Officer Simmons’ potential justification for the use of force. As a result, the Court finds that Officer Simmons is not entitled to qualified immunity at this time. See, e.g., Wood, 2016 WL 2619411, at *8-9 (rejecting qualified immunity defense for excessive force claim based on officer slamming plaintiff against his vehicle); Verdier, 796 F.Supp.2d at 631 (same). The Court will therefore deny Defendants’ motion for

summary judgment with respect to Plaintiffs claim against Officer Simmons in Count Two of the Amended Complaint. b. Officer Little Defendants argue that all of Plaintiffs federal claims against Officer Little, including Plaintiffs excessive force claim, must be dismissed because Plaintiff did not attribute any actions to Officer Little at his deposition. See Defs.’ Mem. at 9. In fact, Defendants state, Plaintiff admitted that Officer Simmons “was the one that was actually doing all of the stuff to me.” Id. (quoting Price Dep. 14:3-5).

Therefore, Defendants argue, Plaintiff has failed to demonstrate Officer Little’s personal involvement in the alleged wrongs, as required in a § 1983 action, and Plaintiffs claims against Officer Little must fail. See Defs.’ Mem. at 9-10. Under § 1983, a state actor “is only liable for his or her own misconduct.” Ashcroft v. Iqbal, 556 U.S. 662, 677, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). Accordingly, Plaintiff must establish that each individual state actor defendant played an affirmative

part in the alleged misconduct. Evancho v. Fisher, 423 F.3d 347, 353 (3d Cir. 2005). This requirement of “personal involvement in the alleged wrongs” may “be shown through allegations of personal direction or of actual knowledge and acquiescence.” Rode v. Del-larciprete, 845 F.2d 1195, 1207-1208 (3d Cir. 1988) (citing Parratt v. Taylor, 451 U.S. 527, 537 n.3, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981)). A showing of actual knowledge “must be made with appropriate particularity.” Id. at 1207. Plaintiffs excessive force claim against Officer Little fails under this standard.

The Third Circuit has held that “a police officer has a duty to take reasonable steps to protect a victim from another officer’s use of excessive force.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir. 2002). Specifically, if an officer “fails or refuses to intervene when a constitutional violation such as an unprovoked beating takes place in his presence, the officer is directly liable under

Section 1983.” Id. at 650 (quoting Byrd v. Clark, 783 F.2d 1002, 1007 (11th Cir. 1986)). However, the officer is only liable “if there is a realistic and reasonable opportunity to intervene.” Id. Here, there are no facts in the record suggesting Officer Little had a “realistic and reasonable” opportunity to intervene in any possible use of excessive force, as Plaintiff does not even recall seeing Officer Little on the day of the incident. See Price Dep. 14:14-15:4. Therefore, the Court will grant

summary judgment for Defendants on Plaintiffs excessive force claim against Officer Little. 3. Count Three: Unreasonable Search and Seizure In Count Three of his Amended Complaint, Plaintiff brings a claim for unreasonable search and seizure in violation of the Fourth Amendment. Am. Compl. ¶ 23. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const, amend. IV.

Whether a search or seizure is unreasonable “depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.” Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (quoting United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985)).

A court’s inquiry involves assessing “on the one hand, the degree to which [the search or seizure] intrudes upon an individual’s privacy and, on the other, the degree to which [the search or seizure] is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999). A person is “seized” for purposes of the Fourth Amendment if, “in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v.

Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). There are three broad categories of interactions between citizens and the police, each involving “varying degrees of constitutional scrutiny”: “(1) police-citizen exchanges involving no coercion or detention; (2) brief seizures or investigatory detentions; and (3) full-scale arrests.” United States v. Brown, 765 F.3d 278, 288 (3d Cir. 2014) (quoting United States v. Perez, 443 F.3d 772, 777 (11th Cir. 2006)). The first category is not a “seizure” and does not implicate the Fourth Amendment. Florida v.

Bostick, 501 U.S. 429, 434, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); United States v. Williams, 413 F.3d 347, 352 (3d Cir. 2005) (officers do not violate the Fourth Amendment “merely by approaching individuals on the street or in other public places” (quoting United States v. Drayton, 536 U.S. 194, 200, 122 S.Ct. 2105, 153 L.Ed.2d 242 (2002))).

When a police officer stops and detains a citizen for a brief period, but the detention does not rise to the level of an arrest—an interaction know as a “Terry stop”—the Fourth Amendment requires the police officer to have reasonable, “articulable suspicion” for the interaction. Terry v. Ohio, 392 U.S. 1, 33, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); see also Illinois v. Wardlow, 528 U.S. 119, 123, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000) (noting that an officer may “conduct a brief, investigatory stop when the officer has a reasonable, articulable suspicion that criminal activity is afoot”).

The third category, a full-scale arrest, requires a police officer to have probable cause. Beck v. Ohio, 379 U.S. 89, 91, 85 S.Ct. 223, 13 L.Ed.2d 142 (1964). Here, based on Plaintiffs version of events, the interaction between Plaintiff and Officers Simmons and Little can be separated into four distinct stages: (1) the police officers’ initial approach;

(2) Officer Simmons’ initial physical contact with Plaintiff;

(3) Officer Simmons’ search of Plaintiffs person; and (4) the arrest. As there are no facts in the record suggesting that Officer Little had any “personal involvement in the alleged wrongs,” Rode, 845 F.2d 1195 at 1207-08, the Court will grant Defendants’ motion for

summary judgment with respect to Plaintiffs unreasonable search and seizure claim against Officer Little. With respect to Officer Simmons, construing all of the facts in the light most favorable to Plaintiff and for the reasons discussed below, the Court concludes that Officer Simmons’ initial physical. contact with Plaintiff constituted, at minimum, a brief seizure, .for which reasonable suspicion was required. Probable cause indisputably existed for Plaintiffs arrest, as Plaintiff admits that Officer Simmons located crack cocaine on his person. See Price Dep, 43:16-19.

The Court will therefore address whether there are disputed issues of material fact regarding Officer Simmons’ reasonable suspicion for the seizure and justification for the search. a. Seizure Defendants claim that the police officers’ “initial approach” of Plaintiff did- not rise above the level of a “mere encounter.” Defs,’ Mem. at 13 (internal quotation marks omitted).

As the Supreme Court has explained, “[s]o long as a reasonable person would feel free ‘to disregard the police and go about his business,’ the encounter is consensual and no reasonable suspicion is required.” Bostick, 501 U.S. at 434, 111 S.Ct. 2382 (citation omitted) (quoting California v. Hodari D., 499 U.S. 621, 628, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991)).

However, an encounter between a police officer and a citizen “loses its consensual nature,” and a seizure implicating the Fourth Amendment occurs, “when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” Id. (quoting Terry, 392 U.S. at 19 n.16, 88 S.Ct. 1868). Perhaps Defendants are correct- that when they initially approached Plaintiff, he felt “free to disregard the police and go about his business.” Bostick, 501 U.S. at 434, 111 S.Ct. 2382 (quoting Hodari D., 499 U.S. at 628, 111 S.Ct. 1547). Indeed, Plaintiff started to walk away.

However, once Officer Simmons grabbed Plaintiff and-placed handcuffs on him, Officer Simmons restrained Plaintiffs liberty, and a seizure occurred. At that point, Officer Simmons was required to have “reasonable, articula-ble suspicion that criminal activity is afoot” to'- seize Plaintiff lawfully. See Wardlow, 528 U.S. at 123, 120 S.Ct. 673.

Whether a seizure is reasonable depends on (1) “whether the officer’s action was justified at its inception,” and (2) “whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 19-20, 88 S.Ct. 1868. “[I]n justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct 1868. Here, Defendants argue that Officer Simmons had reasonable suspicion to stop Plaintiff based upon

(1) Plaintiffs “[n]er-vous, evasive behavior,” including Plaintiffs “attempt to evade” the police officers by walking away when they approached him, and (2) the “altercation” between Plaintiff and his acquaintance. Defs.’ Mem. at 13-14. The Supreme Court has recognized that “nervous, evasive behavior is [a] pertinent factor in determining reasonable suspicion.” Wardlow, 528 U.S. at 124, 120 S.Ct. 673. Further, “[h]eadlong flight— wherever it occurs—is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Id.

However, as the Third Circuit has repeatedly stated, “the Supreme Court has never held that unprovoked flight alone is enough to justify a stop.” United States v. Navedo, 694 F.3d 463, 472 (3d Cir. 2012) (quoting United States v. Bonner, 363 F.3d 213, 217 (3d Cir. 2004)). Rather, “flight upon noticing police, plus some other indicia of wrongdoing, can constitute reasonable suspicion.” Id. (quoting Bonner, 363 F.3d at 217). Here, the only' “nervous, evasive behavior” that any party alleges occurred is Plaintiffs movement away from the police officers.

Merely walking away from a police officer is not “headlong flight,” and Plaintiff and Defendants dispute whether Plaintiff was walking or running away. Compare Little Decl. ¶ 8, Simmons Deck ¶7 (Plaintiff “attempted to push past [them] and run from the scene”) with Price Dep. 24:13-20 (Plaintiff “just walked away, because [he] didn’t want any interference with the police”). Moreover, even if Plaintiffs actions did constitute flight, there is no other “indicia of wrongdoing” that, combined with Plaintiffs flight, could have created reasonable suspicion as a matter of law.

There are no facts indicating that the officers had any reason to believe Plaintiff was armed or dangerous, or that he was carrying- any drugs or engaged in any criminal activity. Cf. United States v. Figueroa, No. 15-98, 2015 WL 7756008, at *4 (D.N.J. Nov. 30, 2015) (“But this was not mere flight; this was flight from the-police, after their actual observation of defendant’s concealment of a handgun.”). Nor is there any-indication that the officers attempted to speak with Plaintiff before he walked away. Cf. United States v.

Samuels, 131 Fed.Appx. 859, 862-63 (3d Cir. 2005) (non-precedential) (holding that police officers had reasonable suspicion to seize the plaintiff based on an anonymous tip, a visible bulge in the plaintiffs waist band, and the plaintiffs nervous behavior, refusal to answer questions, and -attempt to walk away). The only facts Defendants identify that could have contributed to reasonable suspicion, aside from Plaintiffs “flight,” relate to the interaction between Plaintiff and his female, acquaintance, as-that was the only other event preceding Officer Simmons’ decision to grab and handcuff Plaintiff.

As an initial matter, the parties have a minor disagreement regarding the extent of the interaction. Plaintiff maintains that, although he and his acquaintance “were right in each other’s face, close to each other,” Price Dep. 23:8-10, neither one touched the other, id. at 20:16-21:2, and the argument was .purely verbal. Defendants instead claim.that Office Little observed the woman “grabbing Plaintiff by [his] collar.” Defs.’ Mem. at 5 n.2 (citing Simmons Deck ¶ 5; Little Deck ¶¶ 5-6).

Regardless of their dispute regarding Plaintiffs acquaintance’s movements, however, the parties do not dispute that Plaintiff did not touch his acquaintance' during their argument. Plaintiff contends that his argument with his acquaintance cannot support reasonable suspicion because it is not a crime for two people to argue. See Pl.’s Mem at 14. Indeed, Plaintiff notes, he was not cited or charged with any crime relating to the argument.

Id As the Supreme Court made clear in Wardlow and as the Third Circuit has established, a police officer conducting an investigative stop must have reasonable suspicion of criminal activity. See Johnson v. Campbell, 332 F.3d 199, 208 (3d Cir. 2003) (“[T]he activity of which the detainee is suspected must actually be criminal”) (citing United States v. Ubiles, 224 F.3d 213, 218 (3d Cir. 2000)). Thus, a verbal argument is simply not sufficient to provide reasonable suspicion for a stop, even when combined with flight.

Under these circumstances, a reasonable jury could conclude that Officer Simmons did not possess reasonable suspicion to stop Plaintiff, and therefore that his seizure of Plaintiff violated Plaintiffs Fourth Amendment rights. Further, Officer Simmons is not entitled to qualified immunity. Disputed facts exist that are relevant to determining whether or not Officer Simmons is entitled to qualified immunity. The requirements that a police officer have reasonable suspicion for an investigatory stop and reasonable justification for a safety frisk are clearly established and have been for quite some time.

See Terry, 392 U.S. at 20, 27, 88 S.Ct. 1868. However, whether or not the “given facts showed a violation of clearly established law” in this particular case, Reilly, 532 F.3d at 234 (quoting Wright, 409 F.3d at 599), depends on the resolution of disputed facts, including the nature of Plaintiffs interaction with his acquaintance and whether Plaintiff attempted to flee the scene. b. Search “[W]hen police officers make an investigative stop, they may take such steps as are ‘reasonably necessary to protect their personal safety and to maintain the status quo’ during the course of the stop.” United States v.

Edwards, 53 F.3d 616, 619 (3d Cir. 1995) (quoting United States v. Hensley, 469 U.S. 221, 235, 105 S.Ct. 675, 83 L.Ed.2d 604 (1985)). For example, a police officer may conduct “a reasonable search for weapons for the protection of the police officer, where [the officer] has reason to believe that he is dealing with an armed and dangerous individual, regardless of whether he has probable cause to arrest the individual.” Terry, 392 U.S. at 27, 88 S.Ct. 1868.

To justify such a search, “the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” Id. at 21, 88 S.Ct. 1868. Here, Officer Simmons claims that he searched Plaintiff because he saw a knife protruding from Plaintiffs left inside jacket pocket. See Simmons Decl. ¶¶ 12-14. Plaintiff does not dispute that he was carrying a knife, see Price Dep. 25:8-26:11, and he stated that it was on the outside of his belt, see id. at 26:10-18, suggesting that it was visible.

However, even if the knife were visible, Officer Simmons had no reason to believe that Plaintiff was dangerous, and Plaintiff was already in handcuffs at the time of the search, so a reasonable jury could conclude that the search was not necessary for the protection of the officers. On the facts currently before the Court, therefore, dismissal as a matter of law is not warranted on Plaintiff’s claim that Officer Simmons’ search was unreasonable in violation of the Fourth Amendment. As there are genuine disputes of material fact as to whether

(1) Officer Simmons had reasonable suspicion to stop and detain Plaintiff, and

(2) Officer Simmons had justification to search Plaintiff, the Court will deny Defendants’ motion for

summary judgment with respect to Plaintiffs unreasonable-search-and-seizure claim against Officer Simmons. 4. Count Four: Equal Protection In Count Four of Plaintiffs Amended Complaint, he brings a claim against Officers Simmons and Little under the Equal Protection Clause of the Fourteenth Amendment, alleging that Officers Simmons and Little “intentionally treated Plaintiff differently from similarly situated citizens by arresting him without cause after a verbal dispute with a female.” Am. Compl. ¶ 25.

Plaintiff appears to assert his equal protection claim under the “class of one” theory, which requires Plaintiff to demonstrate that (1) he “has been intentionally treated differently from others similarly situated” and (2) “there is no rational basis for the difference in treatment.” Village of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam). Defendants argue that Plaintiffs claim fails as a matter of law because

(1) Plaintiff cannot establish that anyone was “similarly situated” to him with respect to his treatment by Officers Simmons and Little; and

(2) Plaintiffs admission that he possessed crack cocaine at the time of his arrest “defeats any argument that he was selectively arrested or prosecuted on the basis of any impermissible consideration, out of bad faith, or out of a desire to injure him.” Defs.’ Mem. at 23-24. In response, Plaintiff argues that (1) he was similarly situated to his female acquaintance, who was also having a verbal dispute on the street;

(2) Officers Simmons and Little intentionally treated him differently as retaliation for the filing of his previous complaint, which was not rationally related to any legitimate Government interest; and (3) there was no other rational basis for the differential treatment. See PL’s Mem. at 22. “Persons are similarly situated under the Equal Protection Clause when they are alike ‘in all relevant aspects.’” Startzell v. City of Phila., 533 F.3d 183, 203 (3d Cir. 2008) (quoting Nordlinger v. Hahn, 505 U.S. 1, 10, 112 S.Ct. 2326, 120 L.Ed.2d 1 (1992)).

Defendants argue that Plaintiff cannot identify anyone who was similarly situated because “he admits that no other people that day were involved in verbal disputes on the street.” Defs.’ Mem. at 24 (citing Price Dep. 11:23-12:15). However, at his deposition, Plaintiff stated that there were no other individuals involved in verbal disputes on the street besides himself “and the young lady.” Price Dep. 12:7-13 (emphasis added). Contrary to Defendants’ assertion, Plaintiff did not state “that he was the only one involved in a dispute.” Defs.’ Mem. at 24.

In fact, it is undisputed that Plaintiff was engaged in a dispute with another person, and that Officers Simmons and Little did not question or apprehend her. Plaintiff is correct that Officer Simmons’ and Little’s decision not to stop or search Plaintiffs acquaintance establishes that the officers treated Plaintiff differently from a similarly situated individual. However, the Court agrees with Defendants that Plaintiffs claim fails as a matter of law, because Plaintiff cannot establish that the particular differential treatment he alleges in his Amended Complaint had no rational basis.

Plaintiff alleges that he was treated differently from similarly situated citizens solely because he was “arrest[ed] without cause after a verbal dispute with a female.” Am. Compl. ¶25. In general, a plaintiff bringing a “class of one” claim must demonstrate that any differential treatment was “irrational and wholly arbitrary.” Eichenlaub v. Twp. of Indiana, 885 F.3d 274, 286 (3d Cir. 2004) (quoting Olech, 528 U.S. at 564, 120 S.Ct. 1073).

A “class of one” claim, -like any equal protection claim evaluated under rational basis review, cannot succeed “if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993) (quoting FCC v. Beach Commc’ns, 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993)).

Regardless, of whether or not Officers Simmons and Little had a rational basis for initially stopping and searching Plaintiff but not his acquaintance, they certainly had a rational basis for arresting Plaintiff, but not his acquaintance, after they found drugs on Plaintiffs person. In his opposition, Plaintiff argues that he meets the first element of an equal protection claim because “Plaintiffs female companion ... was not similarly grabbed, handcuffed, and slammed against a car and then searched.” Pl.’s Mem. at 22.

Plaintiff therefore appears to argue that the differential treatment was the initial stop and seizure, and not the arrest. Plaintiff might be correct that Officer Simmons did not have a rational basis to -stop Plaintiff as opposed to his acquaintance. However, Plaintiff alleges in his complaint that Officers Little and Simmons treated him differently “by arresting him without cause,” Am. Compl. ¶ 25, not by stopping and seizing him, and Plaintiff cannot add a new basis for an element of one of his claims at this stage of. the proceedings.

Furthermore, even if Plaintiff were to amend his complaint to include the initial stop and seizure as differential treatment, Plaintiffs claim would still fail as a matter of law, because he cannot demonstrate that there is no rational basis for his difference in treatment under the very high standard required in the context of police decisions. As the. Supreme Court has explained, “[t]here are some forms of state action ... which by their nature involve discretionary decisionmaking based on a vast array of subjective, individualized assessments.” Engquist v. Or.

Dep’t of Agric., 558 U.S. 591, 603, 128 S.Ct. 2146, 170 L.Ed.2d 975 (2008) (rejecting a class-of-one claim in the employment context, but discussing police officers’ decision to pull over drivers in a traffic stop). Therefore, the Court will grant. Defendants’ motion for

summary judgment with respect to Plaintiffs, equal protection claim. B. Plaintiffs State Law Claims Plaintiff brings Pennsylvania state law claims against Officers Simmons and Little for the torts of (1) false arrest (Count Five), (2) false imprisonment (Count Six), (3) abuse of process (Count Seven), (4) malicious prosecution (Count Eight), and (5) intentional infliction of emotional distress (Count Nine). In Count Ten, which the Court has stayed, Plaintiff brings a claim against Former Commissioner Ramsey under the doctrine of respondeat superior, alleging that Ramsey is responsible for the tortious actions of Officers Simmons and Little. In their motion for

summary judgment, Defendants argue that all of Plaintiffs state law claims fail as a matter of law, and that all of Plaintiffs state law claims against Officers Simmons and Little are barred by Pennsylvania’s Political Subdivision Toft Claims Act (“the PSTCA” or “the Act”). ' For the reasons discussed below, all of Plaintiffs state law claims against Officers Simmons and Little fail as a matter .of law. As none of Plaintiffs state, law claims survive

summary judgment, the Court need not address whether the officers’ conduct constituted “actual malice” or “willful misconduct,” as Plaintiff would need to prove in order to overcome the PSTCA. 1. Counts Five and Six: False Arrest and False Imprisonment In Counts Five and Six, Plaintiff brings Pennsylvania state law claims against Officers Simmons and Little based on the torts of false arrest and false imprisonment.

Under Pennsylvania law, the tort of false arrest requires a plaintiff to establish either “1) an arrest made without probable cause or 2) an arrest- made by a person without privilege to do so.” Renk v. City of Pittsburgh, 537 Pa. 68, 641 A.2d 289, 295 n.2 (1994). A claim for false imprisonment under Pennsylvania law, similarly, requires a plaintiff to prove that (1) he had been detained and (2) the detention was unlawful. Gwynn v. City of Phila., 719 F.3d 295, 304 n.4 (3d Cir. 2013) (citing Renk, 641 A.2d at 293).

Plaintiffs false arrest and false imprisonment claims both require Plaintiff to show that Officers Simmons and Little did not have probable cause to arrest him. Defendants argue that both claims fail because it is undisputed that Officer Simmons located crack cocaine on Plaintiffs person prior to the arrest, which established probable cause for the arrest. See Defs.’ Mem. at 15-16.

Defendants further assert that probable cause existed for Plaintiffs arrest (1) even though the evidence the officers seized was suppressed in Plaintiffs criminal proceedings, because the exclusionary rule does not apply to § 1983 actions; and (2) even if Officer Simmons initially lacked reasonable suspicion to stop and search Plaintiff, because the “fruit of the poisonous tree” doctrine does not apply to § 1983 actions, either. Id. at 15-16 & n.8.

In response, Plaintiff appears to argue, essentially, that Officers Simmons and Little did not have probable cause to arrest him because they did not have reasonable suspicion to stop him or probable cause to search him; he., that probable cause for arrest is negated through some variation of the exclusionary rule or the “fruit of the poisonous tree” doctrine. See Pi’s Mem. at 15. Defendants are correct that probable cause existed for Plaintiffs arrest as a matter of law.

Contrary to Plaintiffs argument, as Defendants correctly note, neither the exclusionary rule nor the fruit of the poisonous tree doctrine negates the presence of probable cause or is applicable to Plaintiff’s claims. The exclusionary rule “is a prudential doctrine designed to enforce the Fourth Amendment by deterring law enforcement from unreasonable searches and seizures” by prohibiting the government from relying at trial on evidence obtained in violation of the Amendment. United States v. Franz, 772 F.3d 134, 145 (3d Cir. 2014) (citing Davis v.

United States, 564 U.S. 229, 236, 131 S.Ct. 2419, 180 L.Ed.2d 285 (2011)). The fruit of the poisonous tree doctrine, an extension of the exclusionary rule, “excludes evidence obtained from or as a consequence of lawless official acts.” Costello v. United States, 365 U.S. 265, 280, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). The exclusionary rule is not “a personal constitutional right of the party aggrieved.” United States v. Calandra, 414 U.S. 338, 348, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974).

As the Supreme Court has explained, “standing to invoke the exclusionary rule has been confined to situations where the Government seeks to use such evidence to incriminate the victim of the unlawful search.” Id. “The evil of an unreasonable search or seizure is that it invades privacy, not that it uncovers crime, which is no evil at all.” Hector v. Watt, 235 F.3d 154, 157 (3d Cir. 2000) (quoting Townes v.

City of New York, 176 F.3d 138, 148 (2d Cir. 1999)). “Victims of unreasonable searches or seizures may recover damages directly related to the invasion of their privacy—including (where appropriate) damages for physical injury, property damage, injury to reputation, etc.; but such victims cannot be compensated for injuries that result from the discovery of incriminating evidence and consequent criminal prosecution.” Id. (quoting Townes, 176 F.3d at 148).

The “fruit of the poisonous tree” doctrine likewise cannot be used by a plaintiff in a civil suit to avoid consideration of evidence obtained through police misconduct. See Townes, 176 F.3d at 149 (holding that “[t]he fruit of the poisonous tree doctrine ... is inapplicable to civil § 1983 actions”). As a result, the fact that Officer Simmons may not have had reasonable suspicion to stop Plaintiff or probable cause to search him does not eliminate Officer Simmons’ probable cause to arrest Plaintiff after locating drugs on his person. See, e.g., Zamichieli v. Andrews, No. 12-3200, 2016 U.S. Dist.

LEXIS 51364, at *11-12 (E.D. Pa. Apr. 15, 2016) (finding that suppression of a gun found during an unreasonable search “does not prevent [the] court from considering such evidence in connection with its analysis of [Plaintiff’s] § 1983 claims”); Lockhart v. City of Easton, No. 12-0133, 2013 WL 5225234, at *7 (E.D. Pa. Sept. 17, 2013) (finding that “the exclusionary rule does not alter the probable cause analysis” on a false arrest claim); Christian v. Orr, No. 08-2397, 2011 WL 710209, at *17 (E.D. Pa.

Mar. 1, 2011) (“Whatever the legality of the searches that yielded the marijuana ... possession of this drug is illegal in Pennsylvania and thus provides a basis for the police to effect a legitimate arrest.”); Konopka v. Borough of Wyo., 383 F.Supp.2d 666, 675 (M.D. Pa. 2005) (concluding that “[w]hile the fruits of the allegedly illegal search may be inadmissible in criminal proceedings under the exclusionary rule, the illegality of said search does not vitiate the existence of probable cause” in relation to Plaintiffs malicious prosecution claim); Padilla v. Miller, 143 F.Supp.2d 479, 491 (M.D.

Pa. 2001) (“The lack of probable cause to stop and search does not vitiate the probable cause to arrest, because (among other reasons) the fruit of the poisonous tree doctrine is not available to a § 1983 claimant.” (emphasis omitted) (quoting Townes, 176 F.3d at 149)). Therefore, the Court will grant

summary judgment for Defendants on Plaintiffs false arrest and false imprisonment claims against Officers Simmons and Little. 2. Count Seven: Abuse of Process Count Seven of Plaintiffs Amended Complaint brings a Pennsylvania state law claim of abuse of process against Officers Simmons and Little, alleging that Officers Simmons and Little unlawfully arrested Plaintiff in retaliation for the previous lawsuit Plaintiff filed, thus using the legal process for that which it was not intended (he., retaliation). Am. Compl. ¶ 31.

To prevail on an abuse of process claim under Pennsylvania law, a plaintiff must establish that “the defendant (1) used a legal process against the plaintiff, (2) primarily to accomplish a purpose for which the process was not designed; and (3) harm has been caused to the plaintiff.” Rosen v. Am. Bank of Rolla, 426 Pa.Super. 376, 627 A.2d 190, 192 (1993). The Third Circuit has explained that “[t]he gist of an action for abuse of process is the improper use of process after it has been issued, that is, a perversion of it.” Gen. Refractories Co. v. Fireman’s Fund Ins.

Co., 337 F.3d 297, 304 (3d Cir. 2003) (alteration in original) (quoting McGee v. Feege, 517 Pa. 247, 535 A.2d 1020, 1023 (1987)). The requisite “perversion” of the legal process “occurs when a party uses the process ‘primarily to accom--plish a purpose for which the process was not designed.’ ” Id. (emphasis added) (quoting Dumont Television & Radio Corp, v. Franklin Elec.

Co. of Phila., 397 Pa. 274, 154 A.2d 585, 587 (1959)), Accordingly, “there is no action for abuse of process when the process is used for the purpose for which it is intended, but there is' an incidental motive or spite or ulterior purpose of benefit to the defendant.” Id. at 305 n.2 (quoting Rosen, 627 A.2d at 192). Illegitimate , purposes include, for example, “extortion, forcing a defendant to surrender a legal right, or blackmail.” Mawson v. Pittston Police Dep’t, No. 13-1714, 2014 WL 3735133, at *10 (M.D. Pa. July 28, 2014). Defendants argue that

(1) Plaintiffs claim fails for the same reasons as his retaliation claim, to the extent he alleges that the arrest was retaliatory; and

(2) Plaintiff has failed to meet his burden because Officers Simmons and Little merely carried out Plaintiffs arrest to its authorized conclusion. Defs.’ Mem. at 22. Plaintiff responds that his detention without reasonable suspicion and arrest without probable cause were both retaliatory and discriminatory, and' therefore constituted an abuse of process.

PL’s Mem. at 21. ■ Here, as Defendants point out, there are no facts in the record supporting Plaintiffs allegation that Officer Simmons arrested Plaintiff in retaliation for Plaintiffs previous lawsuit, as opposed to arresting Plaintiff based on his discovery of crack cocaine in Plaintiffs pocket. Nor has Plaintiff provided any other evidence of an improper motive for the arrest.

Further, and more importantly, even if Officer Simmons did have an improper motive for the arrest, Plaintiff has not made any allegation—let alone established any facts—suggesting ' that Officers Simmons or Little had any improper motive in conducting the suit against him, as opposed to an alleged improper motive in initiating it. Plaintiff therefore does not have a claim for abuse of process under Pennsylvania law. See, e.g., Rose v.

Bartle, 871 F.2d 331, 350 n.17 (3d Cir, 1989) (explaining that, unlike a claim for malicious prosecution, a “claim for malicious abuse of process lies where ‘prosecution is initiated legitimately and thereafter is used for a purpose other than that intended by the law'” (quoting Jennings v. Shuman, 567 F.2d 1213, 1217 (3d Cir. 1977))); Giordano v. Murano-Nix, No. 12-7034, 2014 WL 62459 at *13, 2014 U.S. Dist. LEXIS 1861 at *41 (E.D. Pa. Jan. 8, 2014) (“[M]erely continuing to pursue' a claim that was initiated with malice does not transform a malicious prosecution claim into an action for abuse of process.”).

Accordingly, the Court will grant Defendants’ motion for

summary judgment with respect to Plaintiffs abuse of process claim. 3. Count Eight: Malicious Prosecution Count Eight of ' Plaintiffs Amended Complaint brings a state law malicious process claim against Officers Simmons and Little, based on the officers having “initat[ed] charges against' the Plaintiff without probable • cause for which the Plaintiff was unlawfully detained and restrained for approximately four months.” Am. Compl. ¶ 33. Plaintiff also alleges that the charges were later terminated in his favor. Id.

To establish a claim for common law malicious prosecution under Pennsylvania law, a plaintiff must show that “(1) the defendants initiated a criminal proceeding; (2) the criminal proceeding ended in the plaintiffs favor; (3) the proceeding was initiated without probable cause; and (4). the defendants acted maliciously or for a purpose other than bringing the plaintiff to justice.” Merkle, 211 F.3d at 791 (citing Hilfirty v. Shipman, 91 F.3d 573, 579 (3d Cir. 1996)).

Defendants argue that Plaintiffs malicious prosecution claim fails as a matter of law because (1) neither Simmons nor Little instituted criminal proceedings against Plaintiff; (2) the charges against Plaintiff were supported by probable cause; (3) there is no evidence of malice; and

(4) Plaintiff was admittedly guilty of the crime with which he was charged. See Defs.’ Mem. at 17. Lack of probable cause is one of the elements of Plaintiffs claim. See Merkle, 211 F.3d at 791. As the Court has previously concluded that probable cause existed for Plaintiffs arrest, Plaintiffs malicious prosecution claim fails as a matter of law, and the Court need not reach the remainder of Defendants’ arguments. C.

Punitive Damages Defendants argue that Plaintiffs claim for punitive damages fails as a matter of law because Plaintiff has failed to establish that any actions taken by Officer Simmons or Officer Little were motivated by an evil motive or reckless indifference to Plaintiffs rights. Defs.’ Mem. at 30. Plaintiff responds that Officer Simmons’ decision to grab Plaintiff and slam him against a car without cause demonstrates his reckless disregard for Plaintiffs rights, and that Officer Simmons’ actions were retaliation against Plaintiff for filing an earlier lawsuit, demonstrating an improper motive.

Pl.’s Mem. at 16-17. Individual state actors sued in their individual capacities under 42 U.S.C. § 1983 may be liable for punitive damages. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 266-67, 101 S.Ct. 2748, 69 L.Ed.2d 616 (1981); Rankin v. City of Phila., 963 F.Supp. 463, 477 (E.D. Pa. 1997). However, punitive damages are available on a § 1983 claim only if the conduct giving rise to .the claim was “motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v.

Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). As discussed above, all of Plaintiffs claims against Officer Simmons and Officer Little fail as a matter of law, with the exception of Plaintiffs claims against Officer Simmons in Counts Two and Three of the Amended Complaint: excessive force and unreasonable search and seizure in violation of the Fourth Amendment. The Court will therefore limit its analysis to those claims.

There is no evidence in the record that Officer Simmons’ actions in stopping and searching Plaintiff were retaliation against Plaintiff for filing his previous lawsuit, which is the only allegation Plaintiff makes with respect to Officer Simmons’ purported “evil motive.” However, if a jury concludes that Officer Simmons did violate Plaintiffs Fourth Amendment rights to be free from excessive force and unreasonable searches and seizures, the jury could also conclude that Officer Simmons’ actions represent “reckless or callous indifference” to Plaintiffs rights.

Therefore, the Court will allow Plaintiffs claims for punitive damages with respect to Counts Two and Three to move forward. YI. CONCLUSION For the reasons discussed above, the Court will grant Defendants’ motion for

summary judgment with respect to Plaintiffs claims against Officer Simmons and Officer Little in Counts One, Four, Five, Six, Seven, Eight, Nine, and. Twelve of the Amended Complaint, in addition to Plaintiffs claims against Officer Little in Counts Two and Three of the Amended Complaint. The Court will deny Defendants’ motion for

summary judgment with respect to Plaintiffs excessive force and unreasonable search and seizure claims against Officer Simmons in Counts Two and Three of the Amended Complaint, including Plaintiffs request for putative damages with respect to those two claims. The Court will also deny Plaintiffs motion to strike. An appropriate order follows. . The facts are presented in the light most favorable to Plaintiff, the nonmoving party. See Frank C. Pollara Grp., LLC v. Ocean View Inv. Holding, LLC. 784 F.3d 177, 179 n.1 (3d Cir. 2015). . Plaintiff testified that he was wearing the knife on his belt.

Price Dep. 26:12-18. Officer Simmons states that he "observed what appeared to be a knife protruding out of his left inside jacket pocket,” Simmons Decl. ¶ 12. Officer Simmons contends that he decided to conduct a "safety frisk” of Plaintiff on the basis of (1) the "altercation” between Plaintiff and his acquaintance,

(2) Plaintiff's “pressing himself up against the side of the vehicle” in response to Officer Simmons’ inquiry as to whether Plaintiff had anything illegal on him,

(3) Plaintiff’s "attempt to run from the scene,” and

(4) Officer Simmons' observation of a knife. Id. at ¶¶ 13-14. .Officer Simmons and Little state that they filled out paperwork in connection with the arrest, but were otherwise not involved in the decision of whether to charge Plaintiff vdth any crimes, and had no conversations or communication with any district attorney regarding Plaintiff's charges, Simmons Decl. ¶¶21-24; Little Decl. ¶¶ 18-21, . The Court did not address the motion for judgment on the pleadings, which was rendered moot by the Court's later order dismissing Plaintiff's initial complaint and ordering Plaintiff to file an amended complaint.

See ECF No. 10. . Given the sophistication of the submissions by Plaintiff, including the selection of claims and the extensive and appropriate citations to case law, it seems unlikely that Plaintiff, who is not a lawyer or someone with a legal background, would have drafted these submissions.

Rather, it appears the written submissions have been prepared by, or with substantial assistance from, a "ghostwriter.” This kind of situation, where Plaintiff is proceeding pro se in theory, but has the advice of counsel in fact, places the Court in a difficult position with respect to the requirement to liberally construe Plaintiff's pro se submissions. Regardless, in this case, the complaint will be liberally construed. .

As Plaintiff concedes to the dismissal of Counts Nine and Twelve of the Amended Complaint, Plaintiff’s Miranda and intentional infliction of emotional distress claims, the Court will grant Defendants’ motion for

summary judgment with respect to those claims. .Plaintiff cites Equipment Finance, LLC v. Hutchison, No. 09-1964, 2010 WL 3791481 (E.D. Pa. Sept. 24, 2010), in support of his motion to strike. PL’s Mot. to Strike at 3. In Equipment Finance, Judge Gardner denied the defendants’ motion for

summary judgment because they failed to adhere to Judge Gardner’s Rule 16 Status Conference Order, which required any party filing a motion for

summary judgment to file “a separate short concise statement, in numbered paragraphs, of the material facts about which the moving party contends there is no genuine dispute.” Id. at *5. Judge Gardner noted that several district courts within the Third Circuit impose such a requirement by local rule, including the United States District Courts for the Middle District of Pennsylvania, the Western District of Pennsylvania, the District of New Jersey, and the Virgin Islands of the United States. Iff at *5 n.10.

However, the Local Rules of United States District Court for the Eastern District of Pennsylvania do not include such a requirement. See Local R. Civ. P. 56.1. Defendants’ inclusion of a statement of facts in their memorandum of law in support of their motion for

summary judgment is sufficient for this Court to evaluate whether or not Defendants have shown that there, are no genuine issues of material fact, as they are required to do under Federal Rule of Civil Procedure 56, . In Count Eleven, Plaintiff brings a claim for supervisory liability against Former Commissioner Ramsey, id at ¶¶ 38-39, which, as previously mentioned, the Court has stayed, see ECF No. 20. . Indeed, it is axiomatic that the filing of a lawsuit is protected conduct under the First Amendment. See Anderson v.

Davila, 125 F.3d 148, 161 (3d Cir. 1997) (finding that plaintiff's filing of an EEOC complaint and employment discrimination suit constituted protected activity for the purposes of a retaliation claim, because ‘‘[t]he Supreme Court has consistently held that an individual's constitutional right of access to court is protected by the First Amendment’s clause granting the right to petition the government for grievances,”), . ‘[A] Bivens action is the federal analog to suits brought against state officials under .. .42 U.S.C. § 1983.” Hartman, 547 U.S, at 254 n.2, 126 S.Ct. 1695. .

The Third Circuit has not yet decided whether Hartman applies to retaliatory arrests. See Primrose v. Mellott, 541 Fed.Appx. 177, 180 (3d Cir. 2013) (non-precedential) (‘‘We have not decided whether the logic of Hartman applies to retaliatory arrest claims_"). Defendants cite Favata v. Seidel, 511 Fed.Appx. 155 (3d Cir. 2013) (non-precedential), in which the Third Circuit applied the Hartman rule where the allegedly retaliatory action was a citation issued by a police officer. Id. at 158-59. Defendants also cite Albert v. Weaver, No. 05-2380, 2007 WL 2343830, at *6-7 (M.D. Pa.

Aug. 15, 2007), which held that Hartman applied to a claim based on a police officer's issuance of a citation. Defs.’ Memi at 20-21. The instant action is distinguishable from Favata and Albert because it involves a retaliatory arrest, not the issuance of a citation—and in any event, neither decision is binding on this Court. . As previously discussed, Plaintiff does not even recall seeing Officer Little on the day of the arrest. See Price Dep. 15:4. In addition, Officer Little claims that he walked away to speak wiffi Plaintiff's female acquaintance after Officer Simmons placed Plaintiff in handcuffs.

See Little Decl. ¶¶ 10-11. . "Probable cause exists where the facts and circumstances within the arresting officer's knowledge are sufficient in themselves to,warrant a reasonable person to believe that an offense has been or is being committed by the person to be arrested.” United States v. Cruz, 910 F.2d 1072, 1076 (3d Cir. 1990) (citing Dunaway v. New York, 442 U.S. 200, 208 n.9, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)). The existence of probable cause is usually a question of fact for the jury. Merkle v. Upper Dublin Sch. Dist. 211 F.3d 782, 788 (3d Cir. 2000).

"However, a district court may conclude ‘that probable cause exists as a matter of law if the evidence, viewed most favorably to [the] [pjlaintiff, reasonably would not support a contrary factual finding,’ and may enter

summary judgment accordingly.” Id. at 788-89 (quoting Sherwood v. Mulvihill, 113 F.3d 396, 401 (3d Cir. 1997)), Here,

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