Opinion
Civil Action No. 03-3331.
September 10, 2004
MEMORANDUM AND ORDER
On December 3, 2003, the parties filed a notice of consent to have me conduct all further proceedings in this action, and, on December 8, 2003, the Honorable Ronald L. Buckwalter ordered that the case be referred to me for all further proceedings and the entry of judgment. See Docket Entries Nos. 9 and 10.
Presently before this Court is Defendant Police Officers Davis, Miles, and Williams' Motion for Summary Judgment. In their motion for summary judgment, Police Officers Davis, Miles, and Williams argue that Mr. Enhaili's 14th amendment substantive due process and equal protection claims fail as a matter of law, as do his state law claims of assault and battery, intentional infliction of emotional distress, invasion of privacy, and negligence. They further state that Mr. Enhaili has failed to adduce any evidence that these defendants exercised excessive force against him in violation of his 4th amendment right. See Memorandum of Law in Support of Defendant Police Officers Davis, Miles, and Williams' Motion for Summary Judgment at 2-3. Plaintiff concedes the dismissal of his 14th amendment claims and the state law claims of intentional infliction of emotional distress, invasion of privacy and all negligence claims; however, he asserts that disputed issues of genuine fact exist regarding his 4th amendment excessive force claim and his state law claim of assault and battery, thus, making their dismissal inappropriate. See Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment at [5]. Upon consideration of this motion, Plaintiff's response, the record, and the applicable caselaw, and as discussed more fully below, Defendant Police Officers' motion will be granted.
Hereinafter Defendants' Memo.
Hereinafter Plaintiff's Memo.
I. FACTUAL BACKGROUND
The factual history is compiled from a review of the complaint, amended complaint, and their respective answers, as well as Defendant Police Officers Davis, Miles, and Williams' motion for summary judgment, their memorandum in support of their motion, inclusive of all exhibits thereto; Plaintiff's response, his memorandum in support of his response, with exhibits, and the court record. All facts, and reasonable inferences therefrom, are considered in the light most favorable to the non-moving party.
I begin by presenting the facts, drawing all reasonable inferences in favor of Plaintiff, the non-moving party. See, e.g., Hamilton v. Leavy, et al., 322 F.3d 776, 782, n. 4 (3d Cir. 2003).
On the afternoon of June 22, 2001, Plaintiff Reda Enhaili was arrested by City of Philadelphia Police Officers Carr, Desher, and Crown for narcotic violations in Philadelphia, Pennsylvania. See Plaintiff's Memo at 1, Exhibit 1; Defendants' Memo, Exhibit A, Exhibit B. Upon his arrest, he was transported by Philadelphia Police Officers Carr, Desher, and Crown to the 24th district to be processed. Plaintiff's Memo, Exhibit 1; Defendants' Memo, Exhibit A. Pursuant to police protocol, after Plaintiff's arrest, he was sent for processing and other paperwork related to the arrest to the "PDU" Center at 8th and Race Streets. See Plaintiff's Memo, Exhibit 5 at 22-23; Defendants' Memo, Exhibit D at 22-23. While Mr. Enhaili was at the PDU Center, he stated to the officials there that he had been injured at the time of his arrest. He claimed that he twisted his ankle while running and that one of the arresting officers stepped on his neck and another kicked him in the back of his ribs. See Plaintiff's Memo, Exhibit 3, at 00005, 00011; Exhibit 5 at 23, 33; Exhibit 6 at 00039; Defendants' Memo, Exhibit D at 23, 33.
It is noted that Districts 24, 25, and 26 share one cell room, and all arrestees from any of these Districts are jailed there. Plaintiff's Memo at 1, n. 1; Defendants' Memo, Exhibit C.
The arresting officers gave an account of Mr. Enhaili's arrest. Police Officer Desher stated that Mr. Enhaili fell during the foot pursuit, but he had no visible injuries as a result of the fall. Furthermore, he did not complain of any pain or injury. Police Officer Carr did not remember Mr. Enhaili having any marks or bruises on his body when he was taken into custody, not did he complain of any pain or injury. Police Officer Crown, who completed the medical intake form for Mr. Enhaili, stated that he was not aware of Mr. Enhaili sustaining any marks or bruises on his body. All the arresting officers deny that they assaulted Plaintiff at the time of his arrest. See Plaintiff's Memo, Exhibit 3 at 00011-00012; Exhibit 4.
Again pursuant to protocol, Mr. Enhaili was returned to the 25th District whereupon a Detainee's Medical Checklist was completed for him. The form indicates the he had no obvious pain or injury at that time. See Plaintiff's Memo, Exhibit 2; Exhibit 3 at 00010. The Cellblock Attendant (CBA) on duty at the time, Defendant Police Officer Jesse Davis, was informed that Mr. Enhaili had to go to the hospital for treatment of his alleged injuries. See Plaintiff's Memo, Exhibit 5 at 23; Defendants' Memo, Exhibit D at 23. Officer Davis notified his corporal and wagon transport that Plaintiff needed to go to the hospital. See Plaintiff's Memo, Exhibit 5 at 33, 34; Defendants' Memo, Exhibit D at 33, 34. In spite of Mr. Enhaili's alleged need to go to the hospital, Officer Davis noted that he did not appear to have any physical signs of injury. See Plaintiff's Memo, Exhibit 5 at 22, 40; Defendants' Memo, Exhibit D at 22. In fact, Officer Davis remembers that Mr. Enhaili was joking around upon his return to the 25th District from the PDU Center. See Plaintiff's Memo, Exhibit 5 at 34; Defendants' Memo Exhibit D at 34. Mr. Enhaili was then placed in a cell with another inmate where he stayed for the remainder of Officer Davis' shift. See Plaintiff's Memo, Exhibit 6 at 00042. Officer Davis checked on Mr. Enhaili several times during his shift, and, at one point, Plaintiff was joking with the officer saying that he was going to grab him, take his keys and escape. See Plaintiff's Memo, Exhibit 5 at 47.
See Defendant's Memo, Exhibit G at 00114-00115.
Shortly before the end of Officer Davis' shift, Defendant Police Officer Nashid Akil came into the cellblock area escorting another prisoner whom he proceeded to process. See Plaintiff's Memo, Exhibit 5 at 49; Defendants' Memo, Exhibit F at 00102. Depending on individual circumstances, officers may or may not escort prisoners to their cells, with the CBA, after processing; however, officers do not wear weapons in the cell room. See Plaintiff's Memo, Exhibit 5 at 54-55. When Officer Akil brought the new prisoner in, the Officer was not wearing a weapon. Id. at 54. Officer Akil began the paperwork concerning his prisoner as Officer Davis' shift was ending, then Defendant Police Officer Stephanie Williams arrived and took over. Id. at 56. Officer Davis testified that there are three sets of cell keys. He has a set; CCTV keeps a set, and another set is kept in a drawer. Id. at 77. When Officer Davis concluded his shift, Mr. Enhaili was joking around and did not appear to be injured at all. Id. at 56. Mr. Enhaili has no recollection of Officer Davis. See Defendants' Memo, Exhibit E at 24.
On April 16, 2004, after a Hearing, Plaintiff's Motion for Default Judgment against Defendant Akil for failure to plead was granted.
Sergeant Verdell Johnson was interviewed during the Internal Affairs investigation of the incident concerning Officer Akil and Mr. Enhaili. The report reads in pertinent part:
. . . The sergeant confirmed that on 6-22-01, he was working the 4x 12 tour and Officer Akil rode along with him. Sgt. Johnson explained he does this with all the officers in the squad as a tool to evaluate their performance.
Sgt. Johnson stated that P/O Akil rode along with him the entire tour. At no time did they separate. P/O Akil was not assigned to ride with anyone else on that date. H owever, Sgt. Johnson said that P/O Akil made a last minute arrest and remained to do the paperwork after Sgt. Johnson had reported off.
The sergeant said the narcotics arrest was made at 600 W. Bristol Street at approximately 10:30 P.M. Sgt. Johnson said he did not accompany P/O Akil into the cellblock with the prisoner, but took the officer's weapon to secure it. See Plaintiff's Memo, Exhibit 3 at 00013.
As previously stated, Officer Davis was relieved at the end of his shift by Officer Williams who was on duty from 10:00 p.m., June 22, 2001, until 6:00 a.m. on June 23, 2001. See Defendants' Memo, Exhibit H at 00090. At the start of her shift, Officer Williams was made aware that some of the prisoners were waiting for transport to the hospital. See Plaintiff's Memo, Exhibit 10 at 00090; Defendants' Memo, Exhibit H at 00090. Though Mr. Enhaili did not appear to be injured at the beginning of her shift, while she was making her rounds and checking the name bands of the prisoners, Officer Williams remembers him yelling that he wanted to go to the hospital. See Plaintiff's Memo, Exhibit 8 at 10, 17; Exhibit 10 at 00094; Defendants' Memo, Exhibit H at 00094. Mr. Enhaili recalls Officer Williams doing her rounds and checking the prisoners' bracelets, but he remembers no conversation with her at that time. See Defendants' Memo, Exhibit E at 32. He only recalls asking Officer Williams for something to eat during her rounds. Id. at 33.
Officer Williams remembers Officer Akil processing a prisoner during her shift that night. See Plaintiff's Memo, Exhibit 10 at 00092. Officer Akil accompanied Officer Williams and the prisoner to his cell after processing. Id. At no time did Officer Akil borrow the cell keys from Officer Williams; she states that the cell keys are not made available to a police officer. Id. at 00093.
Mr. Enhaili alleges that during Officer Williams' shift, between 11:00 p.m. and midnight, Officer Akil came into the cell room wearing a gun, whereupon, he and another prisoner told the officer that he should not have a gun on him. See Defendants' Memo, Exhibit E at 35; Plaintiff's Memo, Exhibit 3 at 00003. He further asserts that Officer Akil left the area, then returned without a weapon. According to Plaintiff, Officer Akil unlocked Mr. Enhaili's cell door, removed his cellmate, and proceeded to beat Mr. Enhaili. See Defendants' Memo, Exhibit E at 35-37. The beating only stopped when an unidentified officer brought another prisoner into the cellblock. Id. at 37.
At a later time, Officers Davis and Akil were discussing what happened that night. Officer Akil stated that Mr. Enhaili was joking or playing around when Officer Akil was putting his prisoner into a cell. Mr. Enhaili "reached for his gun area". Officer Akil related to Officer Davis that he had an empty holster. Plaintiff's Memo, Exhibit 5 at 105-106.
Mr. Enhaili did not see Officer Akil take the cell keys from Officer Williams. He never saw Officer Williams and Officer Akil together, but he did hear them talking, though he could not identify their topic of conversation. Id. at 36. Mr. Enhaili does not remember seeing Officer Williams immediately after he was beaten; he just remembers her listening to the radio. At that time, other prisoners were "screaming and yelling" that they wanted to use the telephone or eat. Id. at 41.
Officer Williams was not aware of any disturbance inside the cellblock, nor did anyone make her aware that a prisoner had been assaulted. See Plaintiff's Memo, Exhibit 10 at 00091-00092; 00095. In regard to the location of cell keys, Officer Williams stated that CCTV has one, and she keeps one hooked onto her belt loop. Id. at 00092. Keys are not left on the desk or not carried on her belt loop. Id. at 00093. In fact, she states that "[b]oth keys are hooked onto the officer who is on duty that night". See Defendants' Memo, Exhibit H at 00093. Officer Akil did not borrow her cell keys, nor did she allow him access to the cellblock keys. Id. She does not know how a prisoner could have been injured during her shift. Id. Both Officers Davis and Williams state that they never saw Officer Akil assault Mr. Enhaili, and they do not know how he was injured while in custody. See Plaintiff's Memo, Exhibits 5 at 106, 8 at 34, 9 at 00117, 10 at 00095.
Pursuant to his normal routine, Defendant Police Sergeant Miles entered the 25th District cellblock after 11:45 p.m., June 22, 2001, in order to ascertain if a wagon was needed for any prisoners who asked to go to the hospital. See Plaintiff's Memo, Exhibit 8 at 14-15; Defendants' Memo, Exhibit I at 00098. Officer Williams accompanied Sergeant Miles to Mr. Enhaili's cell. Sergeant Miles attempted to talk to Mr. Enhaili; however, Mr. Enhaili refused to talk to him. He remained lying on his bench with his face towards the wall and stated that he did not need to go to the hospital; he did not want to be bothered. See Plaintiff's Memo, Exhibit 8 at 39. Mr. Enhaili apparently was fearful that Officer Akil would be the transporting officer. See Plaintiff's Memo, Exhibit 6 at 00040. Sergeant Miles does not specifically recall Mr. Enhaili. See Defendants' Memo, Exhibit I at 00098. He does not remember any prisoner telling him that he had been assaulted by a police officer. Id. at 00099.
Sergeant Miles, too, states that there are two sets of cellblock keys — one set is kept in the drawer in the CCTV room, and the seco nd set is kept on the turnkey's pants. See Defendants' Memo, Exhibit I at 00099.
Plaintiff was transported to Temple Hospital around 9:00 a.m. on June 23, 2001, where he was treated for swelling to the face, bleeding in the left ear and a sore wrist. See Plaintiff's Memo, Exhibit 3 at 00005, 6 at 00041. Mr. Enhaili was treated for aurical hematoma drainage and released. See Plaintiff's Memo, Exhibit 12 at 00281.
After investigation, Lieutenant Carol O'Neill, of the Internal Affairs Department, concluded that:
There is no doubt that Enhaili was beaten while in police custody. His arrest photo does not indicate any injuries. However, he has visible injuries when transported to the hospital during the start of the 8x4 tour on 6-23-01. Photos requested through the Identification Unit by the responding Internal Affairs Division investigators document these injuries.
None of the officers interviewed had any information about how Enhaili received his injuries. Attempts to contact prisoners placed in the cellblock at the same time as Enhaili were met with negative results. Plaintiff's Memo, Exhibit 11.
Mr. Enhaili has conceded the dismissal of his 14th Amendment Due Process and Equal Protection claims and the state law claims of intentional infliction of emotional distress, invasion of privacy and all negligence claims. See Plaintiff's Memo at [5]. On June 2, 2004, in a conference with this Court, Plaintiff voluntarily dismissed with prejudice all claims as to Defendant City of Philadelphia. Mr. Enhaili asserts that disputed issues of genuine fact exist for his 4th Amendment excessive force claim and the state law assault and battery claim. See Plaintiff's Memo at [5]-[6].
II. MOTION FOR SUMMARY JUDGMENT
In their motion for summary judgment, Defendants Davis, Miles, and Williams make the following arguments concerning the remaining claims:
1. Plaintiff's 4th Amendment excessive force claim fails as there are no allegations that Officers Davis and Williams and Sergeant Miles acted in a manner to violate Mr. Enhaili's constitutional rights. See Defendants' Memo at 10.
2. Plaintiff's state law assault and battery claims fail in that he has made no allegations nor does the record demonstrate that Officers Davis and Williams and Sergeant Miles intentionally attempted, by force, to injure Mr. Enhaili, or placed him in a reasonable apprehension of immediate harmful or offensive contact. Moreover, Plaintiff's state law claim is barred by the Tort Claims Act. Id. at 12, 14.
3. Officers Davis and Williams and Sergeant Miles are immune from liability pursuant to the doctrine of qualified immunity. Id. at 11.
III. DISCUSSION
A. Legal StandardsSummary judgment is appropriate only where there exists no genuine issue as to any material fact, such that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56©).
"When the non-moving party bears the burden of persuasion at trial, the moving party may meet its burden on summary judgment by showing that the nonmoving party's evidence is insufficient to carry its burden of persuasion at trial." See Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329 (3d Cir. 1995); see also Celotex Corp. V. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). A nonmoving party creates a genuine issue of material fact when it provides evidence `such that a reasonable jury could return a verdict for the non-moving party.' Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1996). Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir. 1996).
B. Analysis
1) 4th Amendment Excessive Force Claim
"To state a claim for excessive force as an unreasonable seizure under the Fourth Amendment, a plaintiff must show that a `seizure' occurred and that it was unreasonable." (internal citations omitted). Kopec v. Tate, CA. No. 02-4188, slip op. at 6 (3d Cir. March 17, 2004). Moreover, "a defendant in a civil rights action must have personal involvement in the alleged wrongs; liability cannot be predicated solely on the operation of respondeat superior." Rode v. Dellarciprete, 845F.2d 1195, 1207 (3d Cir. 1988).
Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence. Allegations of participation or actual knowledge and acquiescence, however, must be made with appropriate particularity. Id.
Police Officer Jesse Davis, as turnkey in the cellblock on the night in question, stated at his deposition that it was his responsibility to ensure the welfare and safety of the prisoners in his custody. See Plaintiff's Memo, Exhibit 5 at 43. Though not observing any injuries on Mr. Enhaili when he was returned to the 25th District from the Center at 8th and Race Streets, upon being told that Plaintiff stated that he was injured, Officer Davis, appropriately, informed his corporal and arranged for Mr. Enhaili's transportation to the hospital. Id. at 33. Though the hospital transport did not arrive during the remaining four hours of Officer Davis' shift, there was nothing to alert him to the fact that Mr. Enhaili was in need of urgent care. Officer Davis remembers Mr. Enhaili "joking around saying he was going to grab me, and take my key from me, and escape". Id. at 47. Mr. Enhaili states that he has no recollection of Officer Davis at all. See Defendants' Memo, Exhibit E at 24.
Officer Davis recalls that Officer Akil was in the cell room during his shift, but Officer Akil was not wearing a weapon in the cell area. Id. at 54. Officer Davis stated that he usually visually checks the weapons of officers who come into the cell room.
It's not my responsibility, but I think it is, because my life depends on that. If a person grabs ahold of that, he's not just going to get that officer, he's going to get me.
So, I make sure the officers don't wear weapons inside. Id. at 55.
The fact that Officer Davis was responsible for the welfare and safety of the prisoners in the cellblock during his shift is irrelevant. There is no allegation that he knew of or acquiesced in the beating of Mr. Enhaili, nor is there anything to indicate that he personally directed any police officer to beat Plaintiff. As noted in Rode, liability cannot be predicated solely on the doctrine of respondeat superior. Mr. Enhaili fails to show that Officer Davis had the necessary personal knowledge or acquiescence to sustain this 4th Amendment claim against Officer Davis.
Officer Stephanie Williams replaced Officer Davis as the turnkey at the end of his shift. She, too, is alleged to have violated Mr. Enhaili's 4th Amendment rights. Mr. Enhaili remembers Officer Williams doing her rounds and checking the wristbands of the prisoners in the cells upon her arrival for duty. See Defendants' Memo, Exhibit E at 32. She was also informed that some of the prisoners were awaiting transportation to the hospital. See Defendants' Memo, Exhibit H at 90-91. The only conversation Mr. Enhaili remembers having with Officer Williams is one in which he asked her for food. See Defendants' Memo, Exhibit E at 33. Officer Williams, however, recalls that at the beginning of her shift, Mr. Enhaili was yelling that he wanted to go to the hospital. She does not remember if he told her the nature of his injury; she does not recall what his injuries were. Id. at 91; Plaintiff's Memo, Exhibit 8 at 10, 17, 18.
She recalls Officer Akil coming into the cell room with another prisoner during her shift, and she accompanied him and the new prisoner to his cell. See Plaintiff's Memo, Exhibit 8 at 27-28. She denies giving her cell keys to Officer Akil. Id. at 92-93. Mr. Enhaili testifies in his deposition that Officer Akil got the cell keys from Officer Williams, and he gave her his gun, but Mr. Enhaili subsequently admits that he never saw Officer Akil take the keys from Officer Williams. See Defendants' Memo, Exhibit E at 35-36. Officer Williams also testified that Officer Akil did not have his gun on him when he escorted the new prisoner to his cell. See Plaintiff's Memo, Exhibit 8 at 34. After placing his prisoner in a cell and giving Officer Williams information for his prisoner's processing, Officer Williams did not see Officer Akil again during her shift. Id. at 33. Mr. Enhaili recalls Officer Williams having her radio volume turned up and being unresponsive to the prisoners' requests to use the telephone or to have something to eat. Id. at 41.
There is no evidence that Officer Williams personally directed the beating of Mr. Enhaili the night of June 22-23, 2001, nor do her actions indicate any participation, knowledge or acquiescence in such a thing. Mr. Enhaili's request to go to the hospital were being addressed, and he did not lead Officer Williams to believe that his alleged injuries were of an emergent nature. His memories of Officer Williams involve her taking care of routine matters such as checking wristbands and processing new prisoners. Keeping the volume up on her radio to counteract constant calls from prisoners to use the telephone or have something to eat hardly equates with being aware of, or participating in a beating. Mr. Enhaili fails to show that Officer Williams had the necessary personal knowledge or acquiescence to sustain this 4th Amendment claim against her.
Police Sergeant Collins Miles is Officer Williams' supervisor, and he, too, is alleged to have violated Mr. Enhaili's 4th Amendment rights. Sergeant Miles came to the cellblock where Mr. Enhaili was housed to discuss with Officer Williams the need for any prisoners to go to the hospital. See Plaintiff's Memo, Exhibit 8 at 14. Sergeant Miles spoke with Mr. Enhaili who remained lying on his bed, with his face towards the wall. Officer Williams testified that Mr. Enhaili said that he did not need to go to the hospital and that he did not want to be bothered. Id. at 39. When Sergeant Miles was interviewed by the Internal Affairs Division officer, he stated that he did not recall Mr. Enhaili; however, he confirmed Officer Williams' account of his check of the cellblock. See Plaintiff's Memo, Exhibit 3 at 18. There is no evidence that Mr. Enhaili remembers Sergeant Miles.
Similar to Officer Davis, the fact that Sergeant Miles was Officer Williams' supervisor, without an allegation of his personal involvement in Mr. Enhaili's beating, is irrelevant. There is no allegation that he knew of or acquiesced in the beating of Mr. Enhaili, nor is there anything to indicate that he personally directed any police officer to beat Mr. Enhaili. Plaintiff fails to show that Sergeant Miles had the necessary personal knowledge or acquiescence to sustain this 4th Amendment claim against Sergeant Miles.
2. Qualified Immunity
In their second summary judgment argument, Defendants Davis, Williams and Miles invoke the doctrine of qualified immunity.
In determining whether to grant summary judgment on qualified immunity grounds, a court must first consider whether "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right." Saucier v. Katz, 533 U.S. 194, 201 (2001). `[I]f a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is to ask whether the right was clearly established." Id. Hamilton v. Leavy, et al., 2003 WL 559393 at *8 (3d Cir. February 28, 2003).
In analyzing whether the constitutional right was clearly established, the court must consider "whether it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted." This inquiry is an objective one and must be undertaken in light of the specific context of the individual case. The question is whether the officer's conduct was objectively reasonable in light of the facts and circumstances confronting him/her, regardless of underlying intent or motivation. See Curley v. Klem, 298 F.3d 271, 277-79 (3d Cir. 2002) ( quoting Saucier, 121 S.Ct. at 2156 (2001)).
A decision, at the summary judgment level, on qualified immunity will be premature when there are unresolved disputes of historical fact relevant to the immunity analysis. The existence of disputed, historical facts material to the objective reasonableness of an officer's conduct will give rise to a jury issue. Id. at 278 (3d Cir. 2002).
Mr. Enhaili bears the initial burden of showing that Officers Davis and Williams and Sergeant Miles' conduct violated some clearly established statutory or constitutional right. See Sherwood v. Mulvihill, 113 F.3d 396, 399 (3d Cir. 1997). As discussed above, he has not sustained this burden. As the conduct of these Defendants has not violated Mr. Enhaili's 4th Amendment constitutional right, the second step of the qualified immunity argument need not be addressed.
3. Assault and Battery Claims
"At common law, as applied in Pennsylvania, an intentional attempt to inflict physical injury on another constitutes assault and the actual infliction of such injury, however minor, constitutes battery." Kedra v. City of Philadelphia, 454 F.Supp. 652, 667 (E.D.Pa. 1978). See also Commonwealth of Pennsylvania v. Hill, 353 A.2d 870, 880 (Pa.Super. 1975).
Mr. Enhaili has made no allegation nor does the record reveal that Officers Davis and Williams or Sergeant Miles intentionally attempted to injure him, nor did they place him in a reasonable apprehension of immediate harm. Neither has Mr. Enhaili presented any evidence that any of these Defendants intentionally brought about any offensive, or harmful, contact to him.
4. Tort Claims Act
Officers Davis and Williams and Sergeant Miles have also moved for summary judgment with respect to Plaintiff's state law assault and battery claims on the ground that these claims are barred by Pennsylvania's Political Subdivisions Tort Claims Act, 42 Pa. Cons. Stat. Ann. §§ 8541- 8564. The Tort Claims Act provides that an employee of a local agency may be personally liable for tortious conduct in certain limited circumstances. 42 Pa. Cons. Stat. Ann. § 8550 reads:
In any action against a local agency or employee thereof for damages on account of an injury caused by the act of the employee in which it is judicially determined that the act of the employee caused the injury and that such act constituted a crime, actual fraud, actual malice or willful misconduct, the provisions of sections 8545 (relating to official liability generally), 8546 (relating to defense of official immunity), 8548 (relating to indemnity) and 8549 (relating to limitation on damages) shall not apply.
As stated by the Honorable Louis H. Pollack in Owens v. City of Philadelphia, 6 F.Supp.2d 373, 394 (E.D.Pa. 1998) (internal citations omitted), in the context of police misconduct, "willful misconduct" has been construed to mean "misconduct which the perpetrator recognized as misconduct and which was carried out with the intention of achieving exactly that wrongful purpose".
Mr. Enahili has presented no evidence that these Defendants engaged in such misconduct. This claim is barred.
IV. CONCLUSION
Consistent with the above discussion, Defendants Davis, Miles and Williams' Motion for Summary Judgment is granted.
ORDER
AND NOW, this 10th day of September, 2004, upon consideration of Defendants Davis, Miles and Williams' motion for summary judgment, its response, and consistent with the above discussion, it is hereby ORDERED that Defendant Police Officers Davis, Miles, and Williams' Motion for Summary Judgment (Docket Entry No. 23) is GRANTED.All claims against Defendants Davis, Miles, and Williams are DISMISSED WITH PREJUDICE.