Ward v. Noonan (147 F. Supp. 3d 262, 2015)

MEMORANDUM

A. Richard Caputo, United States District Judge

Presently before the Court are.Defendants Canton Borough and Douglas See-ley’s (“Canton Defendants”) Motion for Summary Judgment (Doc. 80.); Defendants Towanda Borough, John Storzyk, and James L. Hart’s (“Towanda Defendants”) Motion for Summary Judgment (Doc. 82.); and Defendants Frank Noonan, Jeffrey Miller (“Colonel. Miller”), John Yéncha (“Corporal Yencha”), Robert Hutchinson, Jeffrey Creeden, John Kern, Brian Fedor, Benjamin Biggus, Thomas Blair (“Trooper Blair”) and James Dughi’s (“Trooper Du-ghi”) (collectively “Commonwealth Defendants”) Motion for - Summary Judgment (Doc. 91.). In his Second Amended Complaint (Doc. 37.), Plaintiff David Ward (“Mr. Ward”) brings this suit pursuant to 42 U.S.C. § 1983 claiming violations of his constitutional rights arising out of an incident that occurred on May 24, 2009.

Because Mr. Ward fails to present sufficient evidence to support his claims against the Canton Defendants, their motion for summary judgment will be granted. Based on Mr. Ward’s agreement that he cannot advance a Monell claim or a request for punitive damages against the Towanda Defendants, their motion for summary judgment will be granted on those claims. Because Mr. Ward has failed to allege any involvement of Commonwealth Defendants Noo-nan, Hutchinson, Creeden, Kern, Fedor and Biggus, their motion for summary judgment will be granted. Due to a failure of Mr. Ward to present sufficient evidence on claims against Colonel Miller and Corporal Yencha for failure to train, supervise, investigate or discipline, their motion for summary judgment will be granted. The motion for summary judgment filetj by Troopers Dughi and Blair on Mr. Ward’s malicious prosecution, due process and failure to train, supervise, or discipline claims will be granted because Mr. Ward has failed to advance such claims. Trooper Blair’s motion for summary. judgment on Mr. Ward’s unlawful arrest claim will be -granted as he is entitled to qualified immunity. Because there are disputed issues of fact with regard to whether Mr. Ward was resisting arrest, Trooper Blair and Officers Stro-zyk and Hart’s motions for summary judgment on Mr.. Ward’s claims for excessive force will be denied.

I. Background

A. Factual Background

On May 24, 2009, a DUI checkpoint was set up, operated and -maintained by the Canton Borough Police Department, the Towanda Borough Police Department, and the Pennsylvania State Police (“PSP”) on State Route Fourteen in Canton Borough, Pennsylvania. (Doc. 93, Commw. Defs.’ Statement of Material and Undisputed Facts, “Commw. Defs. SMF,” ¶ 1.; Doc. 109, Pl.'s Counter-statement to Commw. Defs’ Undisputed Material Facts, “Pl.’s CSMF-Commw. Defs” ¶ 1.) Troopers James Dughi (“Trooper Dughi”), Thomas Blair (“Trooper Blair”) and Jeffrey Creeden were assigned to work at the checkpoint. (Commw. Defs. SMF, ¶¶ 2-4; Pl.’s CSMF-Commw. Defs, ¶¶ 2-4.) Troopers Dughi and Blair were partnered together on the line. (Commw. Defs. SMF, ¶7; Pl.’s CSMF-Commw. Defs., ¶ 7.) Corporal John M. Yencha (“Corporal Yencha”) was on roving patrol. (Commw. Defs. SMF, ¶ 5; Pl.’s CSMF-Commw. Defs., ¶ 5.) Canton Borough Chief of Police Douglas Seeley (“Chief Seeley”) was at the location of the checkpoint but was inside the hall next to the checkpoint. (Doc. 80, Canton Defs.’ Statement of Undisputed Material Facts, “Canton Defs. SMF,” ¶¶ 3-4.; Doc. 107, Pl.’s Counter-statement to Canton Defs. ’ Undisputed Material Facts, ■ “Pl.’s CSMF-Canton Defs.,” ¶¶3-4.) Towanda Borough police officers, James Strozyk (“Officer Strozyk”) and James Hart (“Officer Hart”) were also working the line in proximity to each , other. (Doc. 84, Towanda Defs. Statement of Undisputed Material Facts, “Towanda Defs, SMF,” ¶ 38.; Doc, 105, Pl.’s Counter-statement to To- wanda Defs’ Undisputed Material Facts, “Pl.’s CSMF-Towanda Defs”’ ¶ 38.) .

Canton Borough has an approximate population of 1900 residents and ranked third in Bradford County, Pennsylvania'in alcohol related crashes from 1998 to 2001 and again in 2003. (Commw. Defs. SMF; ¶ 45; Pl.’s CSMF-Commw. Defs., ¶ 45.) Between 1998 and 2003, the Canton Borough Police Department made fifty-one DUI arrests. (Commw. Defs. SMF, ¶ 46; Pl.’s CSMF-Commw. Defs., ¶ 46.) The number remained relatively constant between the years 2004 to 2006, with twenty-five total arrests for DUI. (Id.) The Bradford County DUI Task force began conducting sobriety checkpoints on Route Fourteen in’Canton Borough to prevent drunk driving. (Commw. Defs. SMF, ¶ 56; Plfs CSMF-Commw. Defs., ¶ 56.)

In May 2009, the- DUI checkpoint was sponsored by Canton Borough, which is a municipal entity, organized and existing under the laws of the Commonwealth of Pennsylvania and located in Canton, Bradford County, Pennsylvania. (Canton Defs. SMF, ¶¶ 2, 7; Pl.’s CSMF-Canton Defs., ¶¶ 2, 7.) Officers were instructed to observe drivers for signs of intoxication and were provided with a script to guide their interactions with motorists. (Commw. Defs. SMF, ¶ 50; Pl.’s CSMF-Commw. Defs., ¶ 50.) The PSP regulations permitted officers to ask the driver to produce a license, registration and proof of financial responsibility, purportedly serving the additional purpose of checking drivers for signs of intoxication. (Commw. Defs. SMF, ¶¶ 47, 52-53; Pl.’s CSMF-Commw. Defs., ¶¶ 47, 52-53; Doc. 94-10, 110-23.) All officers at the checkpoint were in uniform.' (Commw. Defs. SMF, ¶ 54; Pl.’s CSMF-Commw. Defs, ¶ 54.) Every vehicle was stopped at the checkpoint and the stops were' brief. (Commw. Defs. SMF, ¶¶ 48-49; Pl.’s CSMF-Commw. Defs., ¶¶ 48-49.)

Just after midnight on May 24, 2009, a 2005 Chevrolet Equinox, driven by Jocelyn Ward (“Mrs. Ward”), was stopped by Troopers Dughi and Blair while going through the checkpoint. (Commw. Defs. SMF, ¶ 8; Pl.’s CSMF-Commw. Defs., ¶ 5.) The vehicle was occupied by Mrs. Ward; Mr. Ward; and three backseat passengers: Chloe Ward, Eric Tenny, and Ryan Weider. (Commw. Defs. SMF, ¶ 9; Pl.’s CSMF-Commw. Defs., ¶ 9.) When the window was rolled down, Trooper Dughi could detect the smell of alcohol emanating from inside the vehicle. (Commw. Defs. SMF, ¶ 10; Pl.’s CSMF-Commw. Defs., ¶ 10.) Trooper Dughi introduced himself to Mrs. Ward, told her what he was doing there and asked for her driver’s license, insurance card, and vehicle registration. (Commw. Defs. SMF, ¶ 11; Pl.’s‘ CSMF-Commw. Defs., ¶ 11.) Mrs. Ward told Trooper Dughi she did not have a driver’s license with her. (Commw. Defs. SMF, ¶ 13; Pl.’s CSMF-Commw. Defs., ¶ 13.) Mr; Ward told Trooper Dughi, “I’ve been f~king drinking.” (Commw. Defs. SMF, ¶ 14; Pl.’s CSMF-Commw. Defs., ¶ 14.) Mr. Ward had consumed eight to ten drinks that' evening over an approximate four hour time period,' (Commw. Defs. SMF, ¶ 15; Pl.’s CSMF-Commw. Defs., ¶ 15.) Trooper Blair was positioned at the rear of the vehicle and described Mr, Ward’s language as very loud and yelling toward Trooper Du-ghi. (Commw. Defs. SMF, ¶ 16; Pl. ’s CSMF-Commw. Defs., ¶ 16.) Trooper Du-ghi directed Mrs. Ward to move the vehicle off the roadway into a pull-off area, (Commw. Defs.’ SMF, ¶ 17; Pl.’s CSMF-Commw. Defs., ¶ 17.) Trooper Blair continued to hear Mr. Ward yell as the vehicle was pulling off the roadway. (Commw. Defs. SMF, ¶ 18; Pl.’s CSMF-Commw. Defs., ¶ 18.) Trooper Dughi followed the vehicle to the pull-off area on foot and Trooper Blair remained in his original position. (Commw. Defs. SMF, ¶ 19; Pl.’s CSMF-Commw. Defs., ¶ 19.) Trooper Dughi then informed Mrs. Ward that he would run her information through NCIC to determine if she had a valid driver’s license and if so, he would give her a verbal warning and she would be free to go. (Commw. Defs. SMF, ¶ 20; Pl.’s CSMF-Commw. Defs., ¶ 20.) Trooper Du-ghi testified that, from his initial.contact, Mr. Ward continued to say that he had been drinking, he was a passenger, he kept on using vulgar language and would not stop, despite orders. (Commw. Defs. SMF, ¶ 21; Pl.’s CSMF-Commw.. Defs., ¶ 21.) Trooper Dughi described Mr. Ward’s interruptions and vulgarities as being uttered in a loud tone of voice, and described his overall demeanor as aggressive. (Commw. Defs. SMF, ¶ 22; Pl.’s CSMF-Commw. Defs., ¶ 22.) Trooper Dughi additionally described Mr. Ward’s demeanor as becoming more agitated as his hand movements became more violent. (Commw. Defs. SMF, ¶ 23; Pl.’s CSMF-Commw. Defs., ¶ 23.) Trooper Dughi was distracted from the other occupants of the vehicle by Mr. Ward, thereby creating officer safety concerns. (Commw. Defs. SMF, ¶ 24; Pl.’s CSMF-Commw. Defs., ¶ 24.). Mr. Ward refused to comply with commands from Trooper Dughi to cease both his aggressive behavior and vulgar language. (Commw. Defs. SMF, ¶ 25; Pl.’s CSMF-Commw. Defs., ¶ 25.) Mr. Ward contests Trooper Dughi’s characterization of Mr. Ward’s demeanor while in the vehicle. (Pl.’s CSMF-Commw. Defs., ¶ 25.)

Trooper Dughi came to the passenger side of the vehicle, opened the door and ordered Mr. Ward out, to which Mr. Ward responded, “Why? What did I dot” (Commw. Defs. SMF, ¶ 26; Pl.’s CSMF-Commw. Defs., ¶ 26.) Trooper Blair approached the vehicle from his location, about one hundred to two hundred feet away. ’(Commw. Defs. SMF, ¶ 27; Pl.’s CSMF-Commw. Defs., ¶ 27.) Trooper Blair heard Trooper Dughi tell'Mr. Ward that he was under arrest and to get out of the car. (Commw. Defs. SMF, ¶ 27; Doc. 94-3, Ex. C, Blair Deposition, 22: 19-23.) Officer Hart went over to the pull-off area before Officer Strozyk. (Towanda Defs. SMF, ¶40; Pl.’s CSMF-Towanda Defs., ¶ 40.) Officer Hart approached the rear oí the vehicle and saw Trooper Dughi oh the passenger side. (Towanda Defs. SMF, ¶ 60; Pl.’s CSMF-Towanda Defs., ¶ 60.) Mr. Ward denies he was ever told' he was under arrest nor told more than once to get out of the vehicle, however, Officer Hart testified that he heard Trooper'Du-ghi tell Mr. Ward he was under arrest and repeatedly order Mr. Ward to'get out of the vehicle. (Towanda Defs. SMF, ¶¶ 60-61; Pl.’s CSMF-Towanda Defs., ¶¶ 60-61.) Trooper Dughi tried to extract Mr. Ward from the vehicle, however, Mr. Ward testified that, while Trooper Dughi was grabbing his arm, he unbuckled his seat belt and got of out the vehicle. (Commw. Defs. SMF, ¶ 28; Pl.’s CSMF-Commw. Defs., ¶ 28; Doc. 105-4, Ex. B, Ward Trial Testimony, 132-133.) Officer Hart testified that he heard Trooper Dughi announce that he would Taser Mr. Ward, but Mr. Ward contests this. (Towanda Defs. SMF, ¶ 63; Pl.’s CSMF-Towanda Defs., ¶ 63.)

Mr. - Ward was drive stunned with a Taser for five seconds, then subject to a Taser probe deployment for seven seconds and then to an additional five seconds of a Taser probe deployment. (Commw. Defs. SMF, ¶ 28; Pl.’s CSMF-Commw. Defs., ¶ 28.) Although it is - disputed if Officer Strozyk arrived before or after Mr. Ward was drive stunned, Mr. Ward was hanging on the door of the vehicle and Officer Strozyk came to the area and Officer Stro-zyk told him, “Dave, just go-down.” (Towanda Defs. SMF, ¶¶ 4-5; Pl.’s CSMF-Towanda Defs., ¶¶ 4-5.) At some point, Mr. Ward said to Officer Strozyk, “Jack.. .they are Tasering me.” (Towanda Defs. SMF, ¶ 48; Pl.’s CSMF-Towanda Defs., ¶ 48.) Mr. Ward continued‘ to hang on the door after the drive, stun. (Towanda Defs. SMF, ¶ 66.) Trooper Dughi deployed the Taser on Mr. Ward’s back and then applied a prong to his. lower extremity. (Towanda Defs. SMF, ¶¶ 66-67; Pl.’s CSMF-Towanda Defs., ¶¶ 66-67.) Officer Strozyk heard a pop, saw Mr. Ward become rigid, left his position in the front of the vehicle and walked around to the open passenger door. (Towanda Defs. SMF, ¶¶ 41, 51; Pl.’s CSMF-Towanda Defs., ¶¶ 43, 51.) Officer Strozyk was on Mr. Ward’s left shoulder and helped him to the ground and at some point told Mr. Ward: “Dave get clear down.” (Towanda Defs. SMF, ¶¶ 52, 6; Pl.’s CSMF-Towanda Defs., ¶¶ 52, 6.) Other officers helped bring Mr. Ward to the ground. (Towanda Defs. SMF, ¶69; Pi’s CSMF-Towanda Defs., ¶ 69.) The Taser prongs were still in Mr. Ward’s back and he was subject tó a Taser deployment while face down on the ground. (Towanda Defs. SMF, ¶ 70; Pl.’s CSMF-Towanda Defs., ¶ 70.) Officer Stro-zyk told Mr. Ward to put his hands behind his back, cuffed Mr. Ward’s one hand and passed the cuffs to Officer Hart to- cuff the other hand. (Commw. Defs. SMF, ¶ 28; Towanda Defs., SMF, ¶ 53; Pl.’s CSMF-Towanda Defs., ¶ 53.) Once Mr. Ward was in handcuffs, Officer Strozyk told Trooper Dughi “we got him” and there were no further Taser deployments. (Towanda Defs. SMF, ¶ 54; Pl.’s CSMF-Towanda Defs., ¶ 54.) Mr. Ward asked Officer Stro-zyk what happened and Officer Strozyk told him he was unaware because he “came at the end of this.” (Towanda Defs. SMF, ¶ 54; Pl.’s CSMF-Towanda Defs., ¶ 54.) According to Trooper Blair and Officer Hart, throughout the incident, Mr. Ward refused to comply with commands to put his hands behind his back, however, Mr. Ward contests their assertions. (Commw. Defs. SMF, ¶ 29; Pl.’s CSMF-Commw. Defs., ¶ 29.) Mr. Ward contends he was unable to comply because he was being Tasered for seventeen out of the twenty-two seconds that he was being arrested. (Pl.’s CSMF-Commw. Defs., ¶ 29.)

Trooper Dughi believed Mr. Ward had committed the offense of disorderly conduct and believed he had probable cause to arrest Mr. Ward. (Commw. Defs. SMF, ¶ 30.) Mr. Ward was arrested at the checkpoint for disorderly conduct, additionally charged with resisting arrest, transported to the state police barracks, arraigned by phone and released to his wife. (Commw. Defs. SMF, ¶¶ 31-33; Pl.’s CSMF-Commw. Defs., ¶¶ 31-33.) After a preliminary hearing, charges of Disorderly Conduct and Resisting Arrest were bound over to court. (Commw. Defs. SMF, ¶ 34; Pl.’s CSMF-Commw. Defs., ¶ 34.)

Corporal Yencha was the supervisor of the PSP troopers working at the DUI checkpoint on May 24, 2009. (Pl.’s CSMF-Commw. Defs., ¶ 59.) As such, Corporal Yencha, upon his return to the checkpoint and upon learning of the incident with Mr. Ward, filed an “Early Intervention Use of Force Tracking Worksheet.” (Commw. Defs. SMF, ¶¶ 60-61; Pl.’s CSMF-Commw. Defs., ¶¶ 60-61.) Corporal Yencha was not Trooper Dughi’s regularly assigned supervisor and did not have the responsibility for determining or issuing discipline. (Commw. Defs. SMF, ¶¶ 59-60; Pl.’s CSMF-Commw. Defs., ¶¶ 59-60.)

As a result of the May 24, 2009 incident, Mr. Ward filed suit and raises claims regarding probable cause for his arrest, the manner in which he was removed from the vehicle when arrested, the use of a Taser during his arrest, and the manner in which he was restrained during his arrest. (Commw. Defs. SMF, ¶ 34; Pl.’s CSMF-Commw. Defs., ¶ 34; Second Am. Compl.) Mr. Ward alleges he suffered physical injury as a result of the use of force, including the use of a Taser, during his arrest. (Commw. Defs. SMF, ¶ 34; Pl.’s CSMF-Commw. Defs., ¶ 36; Second Am. Compl., ¶ 66.)

B. Procedural Background

Relevant to the current motions, Mr. Ward filed a Second Amended Complaint (Doc. 37.) on December 28, 2011. On December 8, 2014, Canton Defendants filed a motion for summary judgment (Doc. 80.), a statement of facts (Doc. 83.), and a supporting brief (Doc. 85.). On December 8, 2014, Towanda Defendants also filed a motion for summary judgment (Doc. 82.), a statement of facts (Doc. 84.) and a supporting brief (Doc. 86.). On December 8, 2014, Commonwealth Defendants filed a motion for summary judgment (Doc. 91.), a statement of facts (Doc. 93.), and a brief in support (Doc. 96.). On January 28, 2015, Mr. Ward filed an answer to the Canton defendants’ statement of facts (Doc. 107.) and a brief in opposition to their motion (Doc. 108.), an answer to the 'Towanda defendants’ statement of facts (Doc. 105.), a brief in opposition to their motion (Dqo; 106.) and an answer to the Commonwealth defendants’ statement of facts (Doc. 109.), On February 5, 2015, Mr. Ward filed a brief in opposition .to the Commonwealth defendants’ motion, (Doc. 112.) On- March 16, 2015, Commonwealth Defendants filed a reply brief. (Doc. 118.) The motions , for summary judgment are now ripe for disposition. ,

II. Discussion

Defendants seek summary judgment on most of Mr. Ward’s claims. More specifically, Commonwealth Defendants challenge claims contained in Count I óf the Second Amended Complaint. Commonwealth Defendants have not filed' for summary judgment on Mr. Ward’s claims of unlawful arrest and excessive force against Trooper Dughi. The Towanda Defendants seek summary judgment on Count II of the Second Amended Complaint but failed to seek summary judgment on Mr. Ward’s claims for unlawful arrest against Officer Strozyk and Hart. The Canton Defendants seek summary judgment on Count III of the Second Amended Complaint. The motions are addressed more fully below.

A. Legal Standard

1. Summary Judgment

Summary judgment will be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “Summary judgment is appropriate when ‘the . pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is -no genuine issue as to any material fact and that the moving party is entitled to a judgment as a,matter of law.’ ” Wright v. Corning, 679 F.3d 101, 103 (3d Cir.2012) (quoting Orsatti v. N.J. State Police, 71 F.3d 480, 482 (3d Cir.1995)). A fact is material if proof of its existence or nonexistence might affect the outcome of the suit under the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

Where there is no material fact in dispute, the moving party need only establish that it is entitled to - judgment as a matter of law. See Edelman v. Comm’r of Soc. Sec., 83 F.3d 68, 70 (3d Cir.1996). Where, however, there is a disputed issue of material fact, summary judgment is appropriate only -if the factual dispute is not a genuine one. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. An issue of material fact is genuine if “a reasonable jury could return a verdict for the nonmoving party.” Id. Where there is a material fact in dispute, the moving party has the initial burden of proving that: (1) there-is no genuine issue of material fact; and (2) the moving -party is entitled to judgment as a matter of law. See Howard Hess Dental Labs., Inc. v. Dentsply Int'l Inc., 602 F.3d 237, 251 (3d Cir.2010). The moving party may present its own evidence or, where the non-moving party has the burden of proof, simply point out to the court that “the non-moving party has failed to make a sufficient showing on an essential element of her case.” Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

“When considering whether there exist genuine issues of material fact, the court is required to examine the evidence of record in the light most favorable to the party opposing summary judgment, and resolve all reasonable inferences in that party’s favor.” Wishkin v. Potter, 476 F.3d 180, 184 (3d Cir.2007). Once the moving party has satisfied its initial burden, the burden shifts to the non-moving party to either present affirmative evidence supporting its version of the material facts or to refute the moving party’s contention that the facts entitle it to judgment as a matter of law. Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. The Court need not accept mere conclusory allegations, whether they are made in the complaint or a sworn statement. Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990).

“To prevail on a motion for summary judgment, the non-moving party must show specific facts such that a reasonable jury could find in that party’s favor, thereby establishing a genuine issue of fact for trial.” Galli v. New Jersey Meadowlands Comm’n, 490 F.3d 265, 270 (3d Cir.2007) (citing Fed. R. Civ. P. 56(e)). “While the evidence that the non-moving party presents may be either direct or circumstantial, and need not be as great as a preponderance, the evidence must be more than a scintilla.” ■ Id. (quoting Hugh v. Butler County Family YMCA, 418 F.3d 265, 267 (3d Cir.2005)). In- deciding a motion for summary judgment, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505.

2. Section 1983

Mr. Ward has alleged violations of his constitutional rights and filed suit under 42 U.S.C. § 1983. Section 1983 states, “Every person who, under color of any statute, ordinance, regulation, custom, or usage... subjects, or causes to be subjected, any citizen ... or any other person-. . .to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, will be liable to the party injured.” Section 1983 “is not itself a source' of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.” City of Monterey v. Del Monte Dunes, 526 U.S. 687, 749 n. 9, 119 S.Ct. 1624, 143 L.Ed.2d 882 (1999) (quoting Baker v. McCollan, 443 U.S. 137 144 n.3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)). To prevail in an action' under § 1983, a plaintiff must demonstrate: (1) a violation of a right secured by the Constitution or laws'of the United States, and (2) that the alleged deprivation was committed by a person acting under color of state law. Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.2000); Moore v. Tartler, 986 F.2d 682, 685 (3d Cir.1993). “Action under color of state law ‘requires that one liable under § 1983 have exercised power possessed by virtue of state law and made possible only because the. wrongdoer is, clothed with the authority of state law.’ ” Harvey v. Plains Twp. Police Dep’t, 635 F.3d 606, 609 (3d Cir.2011) (quoting Abbott v. Latshaw, 164 F.3d 141, 146 (3d Cir.1998)).

. B. Mr. Ward’s Claims

The Second Amended Complaint states that the defendants’ actions violated Mr. Ward’s due process'rights' in Counts I, II, and III. The Due Process Clause of the Fourteenth Amendment prohibits states from depriving “any person of life, liberty, or property without due process of the law.” U.S. Const. amend. XIV. Due process under the* Fourteenth Amendment “has both substantive and procedural components.” Evans v. Sec’y Pa. Dep’t of Corr., 645 F.3d 650, 658 (3d Cir.2011). Despite allegations in the Second Amended Complaint, Mr. Ward states his excessive force claim is being brought under the Fourth Amendment not the Fourteenth. (Doc. 112, 22.) Mr. Ward has failed to articulate any allegation regarding the violation of his due process rights other than to simply state they were violatedhBecaude there is no evidence of record regarding a due process violation, either procedural or substantive, the Defendants are entitled to summary judgment on any potential claim under the Fourteenth Amendment.' =

1. COUNT I-Commonwealth Defendants

At the outset, prior to engaging in an analysis of Mr. Ward’s claims under the applicable summary judgment law, it is prudent to address the claims that do not require analysis. Count’ I of the Second Amended Complaint names several Commonwealth Defendants. In Mr. Ward’s brief in opposition to the motion for summary judgment, he states the'following: “[biased upon the discovery in this case, it is admitted that the Defendant^. Noonan, Hutchinson, Creeden, Kern, Fedor, and Biggus had no personal involvement in the attack on Mr. Ward.” (Doc. 112, 10.) Because “[a] defendant in a civil rights action must have personal involvement in the alleged wrongs” for liability to attach, See Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir.1988), it follows that the above Defendants cannot be liable to Mr. Ward. Therefore, summary judgment"’will be granted on behalf of Commonwealth Defendants Noonan, Hutchinson, Creeden, Kern, Fedor and Biggus.

The Commonwealth Defendants have moved for summary judgment on all of Mr. Ward’s claims against Colonel Miller and Corporal Yencha. They have also moved for summary judgment on Mr. Ward’s claims of malicious prosecution; due process; and failure to supervise, train or discipline against Troopers Dughi and Blair. They have moved for summary judgment on all other claims against Trooper Blair. The Commonwealth Defendants have not moved for summary judgment on excessive force or unlawful’arrest against Trooper Dughi. Therefore, those claim remains and all other claims are addressed below.

a. Failure to Train/Supervise

Mr. Ward names Defendants Miller and Yencha as having been “deliberately indifferent to the following patterns, practices, and customs and the need for more or different training, supervision, investigation or discipline...” (Second Am. Compl., ¶ 81.) To establish individual liability in a § 1983 case, a plaintiff must show that the defendant had “personal involvement in the alleged wrongs.” Rode, 845 F.2d at 1207. Where a supervisor did not directly participate in violating a plaintiffs rights, he may still be liable under § 1983 where he “directed others to violate them, or, as the person in charge, had knowledge of and acquiesced in his ‘subordinates’ violations.” A.M. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir.2004).

Where “the policy in question concerns a failure to train or supervise municipal employees, liability under section 1983 requires a showing that the failure amounts to “deliberate indifference” to the rights of persons with whom those employees will come into contact.” Carter v. City of Philadelphia, 181 F.3d 339, 357 (3d Cir.1999) (citing City of Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989))). Failure to train or supervise amounts to deliberate indifference when: “(1) municipal policymakers know that employees will confront a particular situation; (2) the situation involves a difficult choice or a history of employees mishandling; and (3) the wrong choice by an employee will frequently cause deprivation of constitutional rights.” Carter, 181 F.3d at 357. For a failure to train claim to “survive summary judgment..., the [plaintiff] must present evidence that the need for more or different training was so obvious and so likely to lead to the violation of constitutional rights that the policymaker’s failure to respond amounts to deliberate indifference.” Brown v. Muhlenberg Twp., 269 F.3d 205, 216 (3d Cir.2001) (citing City of Canton, 489 U.S. at 390, 109 S.Ct. 1197).

A supervisor may also be liable under § 1983 “if he or she implements a policy or practice that creates an unreasonable risk of a constitutional violation on the part of the subordinate and the supervisor’s failure to change the policy or employ corrective practices is a cause of this unconstitutional conduct.” Brown, 269 F.3d at 216. A supervisor cannot be held liable, however, on a theory of respondeat superior. Rode, 845 F.2d at 1207.

In Brown, the Third Circuit set out the factors for a finding of supervisory liability as follows:

The plaintiff must (1) identify the specific supervisory practice or procedure that the supervisor failed to employ, and show that (2) the existing custom and practice without the identified, absent custom or procedure created an unreasonable risk of the ultimate injury, (3) the supervisor was aware that this unreasonable risk existed, (4) the supervisor was indifferent to the risk; and (5) the underling’s violation resulted from the supervisor’s failure to employ that supervisory practice or procedure.

269 F.3d at 216 (citing Sample v. Diecks, 885 F.2d 1099, 1116 (3d Cir.1989)). The court further reiterated that “it is not enough for a plaintiff to argue that the constitutionally cognizable injury would not have occurred if the superior had done more than he or she did.” Brown, 269 F.3d at 216 (quoting Sample, 885 F.2d at 1118). But instead “must identify specific acts or omissions of the supervisor that evidence deliberate indifference and persuade the court that there is a “relationship between the ‘identified deficiency1 and the ‘ultimate injury.’ ” Id.

Mr. Ward lists seven areas in which he contends'that Defendants Miller and Yen-cha “encouraged, tolerated, ratified, [or]... been deliberately indifferent to.'. .patterns, practices and customs and the need for more or different training, supervision, investigation or discipline.” (Second Am. Compl., ¶ 81.) Mr. Ward alleges “Defendants Miller and Yencha failed to properly sanction or discipline officers, who are aware of and conceal and/or aid and abet violations of constitutional rights of citizens by other police officers, thereby causing and encouraging the police, including the Defendant officers in this case to violate the rights of citizens such as Mr. Ward.” (Id. at ¶ 81(g).)

i. Colonel Miller

Turning to Colonel Miller, Mr. Ward, while acknowledging that Colonel Miller resigned before May 24, 2009, states “he was ultimately responsible for the training of the Defendant Dughi.” (Doc. 112, 11.) In support of his claim, Mr. Ward states that Colonel Miller “[i]n his capacity. . .was aware Trooper Dughi would come in contact and confront individuals who, because they' had been drinking, would be loud and boisterous and a decision would have to be made as to whether a crime was committed or not and the 'degree of force that should be used if crime was committed. He was also aware that the wrong choice by a trooper would cause a deprivation of constitutional rights.” (Id. at 11-12.) Mr. Ward then states that Trooper Dughi was not properly trained and that lack of training led to the alleged constitutional violations. (Id. at 12.) Mr. Ward, alleges this lack, of,training equates to deliberate indifference on the part of Colonel Miller. (Id.) Mr. Ward fails to cite to any evidence of record.1 Mr. Ward has an obligation to come forward' with “affirmative evidence, beyond allegations of the pleadings” in support of the right to relief. See Anderson, 477 U.S. at 256-57, 106 S.Ct. 2505. There is no evidence of record regarding Colonel Miller other than the pleadings. It is undisputed that Colonel Miller had retired from his position as PSP Commissioner on August 8, 2008,' prior to the stop of -the Ward vehicle at the DUI checkpoint on May 24, 2009. (Commw. Defs, SMF, ¶ 63; Pl.’s CSMF-Commw. Defs., ¶ 63.) At best, Mr. Ward makes con-clusory allegations which will not suffice in the face of the motion for summary judgment. A recitation of the elements for liability for failure to train is not enough. Mr. Ward fails to demonstrate how there is a genuine issue of fact with regárd to the application of those elements. To state that a trooper will come into contact with intoxicated individuals and have to decide if a crime has been committed or ’Hot is to paint with too broad of a brüsh. Mr. Ward has not put forth evidence of a particular situation necessary for liability for failure to train, nor any evidence that' could lead to a determination of delibérate indifference by Colonel Miller. "

Mr. Ward provides no other argument regarding the supervisory or disciplinary role of Colonel Miller, which is logical because Colonel Miller was not the acting PSP Commissioner on May 24, 2009, nor any time afterwards. Colonel Miller is entitled to summary judgment on all claims.

ii. Corporal Yencha

Mr. Ward argues because Corporal Yencha was the PSP supervisor for the troopers on scene on May 24, 2009, “he set the scene for Trooper .Dughi’s encounter with Mr, Ward.” (Doc. 112, 13.) Mr. Ward contends Corporal Yencha “was responsible for defining expected performance by promulgating rules and monitoring adherence to performance standards and individual discipline.” (Id.) Mr. Ward cites his expert report as support for his position that Corporal Yencha failed to investigate Trooper Dughi’s actions. (Doc. 105-19.) However, Mr. Ward, does not direct where such statements are made by his expert and no such statements were found after review of the report.

Mr, Ward states that “[h]ad a proper investigation been conducted, the situation would have warranted disciplinary measures because of the constitutional rights violation engaged in by the Defendant Dughi and injuries inflicted to Mr. Ward.. .the Corporal is liable in his role as a supervisor.” (Doc. 112, 14.) Corporal Yencha was not Trooper Dughi’s regularly assigned supervisor, nor did he have responsibility for determining or issuing discipline. (Commw. Defs. SMF, ¶¶ 58-59; Pl.’s CSMF-Commw. Defs., ¶¶ 58-59.) Corporal Yencha was the supervisor of PSP troopers working at the DUI checkpoint on May 24, 2009, and upon his return to the checkpoint and upon learning of the incident with Mr. Ward, he filed an “Early Intervention Use of Force Tracking Worksheet.” (Commw. Defs. SMF, ¶¶ 60-61; Pl.’s CSMF-Commw. Defs, ¶¶ 59-61.) Mr.' Ward has not eited to any facts of record that could lead a reasonable jury to conclude that Corporal Yencha is liable to Mr. Ward. To state that Corporal Yencha failed to investigate and discipline Trooper Dughi after the fact does not impact the matter at issue in this current litigation. Mr. Ward has done nothing more than ¡to “argue that the constitutionally cognizable injury would not have occurred if the superior had done more than he or she did.” Brown, 269 F.3d at 216. Mr. Ward has failed to ■ put forth facts to support his claim against Corporal Yencha and therefore, the motion for summary judgment will be granted.

iii. Trooper Blair

Mr. Ward has not advanced a claim for failure to train, supervise, or discipline against Trooper Blair, therefore, Trooper Blair is entitled to summary judgment with regard to any claim for failure to train, supervise, or discipline.

iv. Trooper Dughi

Mr. Ward has not presented evidence with regard to a failure to train, supervise, or discipline claim against Trooper Dughi. It cannot be disputed that Trooper Dughi is one of the individuals whom Mr. Ward alleges violated his constitutional rights, therefore, any claim against Trooper Du-ghi for failure to train, supervise or discipline, defies logic. Trooper Dughi is entitled to summary judgment on a failure to train, supervise, or discipline claim, as a matter of law.

b. Malicious Prosecution

i. Trooper Dughi

Mr. Ward contends that Trooper Dughi maliciously prosecuted him in Count I. Mr, Ward alleges that the there was a “violation of his civil rights pursuant to 42 U.S.C. § 1983 and the First and Fourth Amendments of the United States Constitution.” (Second Am. Compl.) The Commonwealth-Defendants move for summary judgment on this claim, arguing that there is no evidence of record to show that Trooper Dughi acted with malice. (Doc. 95, 29.) Mr. Ward counters that there is evidence of record which could lead a reasonable jury to find Trooper Dughi acted with malice. (Doc. 112, 19.) Mr. Ward additionally argues that he brought a Pennsylvania state law claim for the common law tort of malicious prosecution. (Doc, 112, 20-21.) Mr. Ward, however, failed to plead a claim under .Pennsylvania law against Trooper Dughi and cannot now add a claim that was not alleged in the Second Amended Complaint. Therefore, Mr. Ward’s malicious prosecution claim against Trooper Dughi will be evaluated a's a claim brought pursuant to the Fourth Amendment.

The Third Circuit stated in Johnson v. Knorr that: ' M

To prove malicious prosecution under section 1983 when the claim is* under the Fourth Amendment, a plaintiff must show that: (1) the defendant initiated a criminal proceeding; (2) the criminal proceeding ended in his favor; (3) the defendant initiated the proceeding without probable cause; (4) the defendant acted maliciously or for a purpose other than bringing the plaintiff to justice; and (5) the plaintiff suffered deprivation, of liberty consistent with the concept'of seizure as a consequence of a legal proceeding. '*

477 F.3d 75, 81-82 (3d Cir.2007). “If Plaintiffs have not proffered evidence sufficient to create a triable issue of fact as to all five prongs, their malicious prosecution claim must fail as a matter of law.” Domenech v. City of Philadelphia, 2009 WL 1109316, at *9 (E.D.Pa. Apr. 23, 2009) aff'd, 373 Fed.Appx. 254 (3d Cir.2010).

1.Initiation of Prosecution and Criminal Procedure

Trooper Dughi was the affianf'who filed charges against Mr. Ward of Disorderly Conduct, 18 Pa. C.S.A § 5503(A)(1), graded as misdemeanor of the third degree, and Resisting Arrést, 18 Pa. C.S.A. § 5104, graded as misdemeanor of the second degree. (Doc. 94, Commit). Defs. SMF-Ex I.) After a jury trial, Mr. Ward was acquitted of all charges. (Second Am. Compl, ¶ 56.; Doc. 43, Commw. Defs. Ans., ¶ 56.) The first two prongs are not in dispute.

2.Initiated without Probable Cause

Turning to the third prong, thé Commonwealth Defendants have'‘not advanced any argument with regard to whether or not Trooper Dughi had probable cause to arrest Mr. Ward. Trooper Dughi needed probable cause to arrest for disorderly conduct because a resisting arrest charge could not have provided probable cause ab intitio. “[A] valid charge of resisting arrest requires an underlying lawful arrest, which, in turn, requires that the arresting officer possess probable cause.” Com. v. Hock, 556 Pa. 409, 415, 728 A.2d 943, 946 (1999). There must have been an underlying basis for arrest that Mr. Ward would be allegedly resisting, i.e., probable cause for an arrest for disorderly conduct. Mr. Ward was charged with violation of 18 Pa. C.S.A. § 5503(a)(1) according to the Magisterial District Court Docket Transcript. (Commw. Defs. SMF-Ex. I.) However, as stated Commonwealth Defendants do not address probable cause and because Mr. Ward’s claim against Trooper Dughi for unlawful arrest remains, the jury will be tasked with determining whether or not probable cause existed.

3.Malice

Commonwealth Defendants' argue that they are entitled to summary judgment because Mr. Ward has failed to provide evidentiary support that Trooper Dughi acted maliciously. (Doc. 95, 30.) The Third Circuit has. stated that “malice can mean ill-will or the use of a prosecution for an extraneous purpose or a lack of belief in the guilt of the accused.” Lippay v. Christos, 996 F.2d 1490, 1503 (3d Cir.1993). Additionally, malice can be shown “either [by] statfing] a deliberate falsehood or act[ing] with a reckless disregard for the truth. Proof of negligence or innocent mistake is insufficient.” Id. at 1501 (citing Franks v. Delaware, 438 U.S. 154, 171, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978)). Malice may be inferred from the absence of probable cause. Lippay, 996 F.2d at 1502 (citations omitted).

Mr. Ward’s asserts that “the evidence of record clearly supports a finding that Trooper Dughi acted with malice.” (Doc. 112, 22.) Mr. Ward cites his wife’s deposition testimony that “she detected an attitude of anger.” (Id.) Mrs. Ward testified that she “could see he was getting angry.” (Doc 105-15, 10.) Also, Mr. Ward cites to Trooper Dughi’s actions after Mr. Ward’s door was opened, e.g., trying to remove him from the vehicle and the Taser applications, as evidencing malice. (Doc. 112, 23.)

Mr. Ward argues that because his expert determined that Trooper Dughi lacked probable cause to arrest for disorderly conduct, “a jury could infer malice therefrom.” Id. Viewing the evidence in the light most favorable to Mr. Ward, there remains a question of fact whether Trooper Dughi acted with malice. A jury could infer malice if they agree that Trooper Dughi lacked probable cause. However, becausó Mr. Ward has failed to plead a Pennsylvania state law claim for malicious prosecution, this does not end the inquiry.

4. Deprivation of liberty consistent with seizure

When a malicious prosecution claim is brought under the Fourth Amendment, “the plaintiff [must have] suffered deprivation of liberty consistent with the concept of seizure as a consequence of a legal proceeding.” Johnson, 477 F.3d at 81-82. This fifth element distinguishes Fourth Amendment malicious prosecution claims from Pennsylvania common law malicious prosecution. See Collins v. Jones, 2015 WL 790055 * 4 n. 10 (E.D.Pa. February 24, 2015). “Pretrial custody and some onerous types of pretrial, non-custodial restrictions constitute a Fourth Amendment seizure.” DiBella v. Borough of Beachwood, 407 F.3d 599, 603 (3d Cir.2005) (no seizure resulted where plaintiffs were issued only a summons and did not have to post bail). In Gallo v. City of Philadelphia, 161 F.3d 217 (3d Cir.1998), the plaintiff was seized when he was required to post $ 10,000 bond, attend all court hearings, contact pretrial services weekly and was prohibited from traveling outside of a two state area. In Johnson, a seizure was found where the plaintiff was detained for approximately two days prior to making bail, and .was also required to return in six weeks for a hearing. 477 F.3d 75.

Mr. Ward sets forth that “deprivation of liberty is not an element for the state law cause of action” and that “he can recover based upon the state law cause of action.” (Doc. 112, 25.) However, as discussed above, Mr. Ward fails to plead a claim under Pennsylvania law as he states in the Second Amended Complaint that his claims are pursuant to the First and Fourth Amendments to the United States Constitution. Mr. Ward fails to set forth any evidentiary support demonstrating that he was seized for Fourth Amendment purposes thus leading to the conclusion that Trooper Dughi is entitled to summary judgment on Mr. Ward’s malicious prosecution claim.

5. Lack of Proximate Cause

Commonwealth Defendants argue against the malicious prosecution claim contending that Trooper Dughi’s actions were not the proximate cause of Mr. Ward’s injuries. (Doc. 95, 32-35.) Commonwealth Defendants argue that Mr. Ward’s arraignment and preliminary hearing break the causal chain with regard to malicious prosecution. Because it was determined above that Mr. Ward has not come forward with evidence of a seizure as required, this argument will not be explored. Trooper Dughi is entitled to summary judgment on Mr. Ward’s malicious prosecution claim.

ii. Trooper Blair

Mr. Ward has not presented evidence with regard to a malicious prosecution claim against Trooper Blair. The evidence is clear that Trooper-Dughi initiated the criminal proceedings against .Mr., Ward and therefore, Trooper Blair is entitled to summary judgment on a malicious prosecution claim as a matter of law.

a. Lack of Duty

i. Trooper Blair

Commonwealth Defendants seek summary judgment on behalf of Trooper Blair on all Mr. Ward’s claims because “[e]ven though Trooper Blair was present at Ward’s arrest, Ward clearly stated during his deposition that Trooper Blair did hot injure him.” (Doc. 95, 41.) Commonwealth Defendants argue that tort principles of damages are applicable to actions brought pursuant to § 1983 and therefore, because Mr. Ward stated Trooper Blair did not cause him injury, he cannot be hable to him for damages. (Id.) Mr. Ward Responds to Commonwealth defendants’ motion stating that Trooper Blair was on his right hand side, with a hold on his right arm. (Doc. 112, 27; Doc. 105-7, 49-50, 59.) Mr. Ward testified that he suffered injury'% his right biceps tendon. (Doc. 105-1, 38.) Despite Mr. Ward’s statement that Troop1 er Blair did not cause injury to him, there remains a question of fact with regard to whether Trooper Blair played a role in causing injury to Mr. Ward. Therefore, Trooper Blair is not entitled to summary judgment based on a lack of duty to Mr. Ward.

b. Qualified Immunity

i. Trooper Blair

Commonwealth Defendants alternatively argue Trooper Blair should be entitled to summary judgment on Mr. Ward’s unlawful or false arrest claim based on qualified immunity. (Doc. 95, 42.) “The Fourth Amendment prohibits a police officer from arresting a citizen except upon probable cause.” Rogers v. Powell, 120 F.3d 446, 452 (3d Cir.1997) (citing Orsatti v. New Jersey State Police, 71 F.3d 480, 482 (3d Cir.1995)) (citation omitted). I agree Trooper Blair is entitled’ to qualified immunity on Mr. Ward’s unlawful and false arrest claim. However, I will explore whether ■ probable cause existed for Mr. Ward’s arrest.

A defendant official may be entitled to qualified immunity .or a good faith, affirmative defense. Harlow v. Fitzgerald, 457 U.S. 800, 815, 102 S.Ct. 2727, 2736, 73 L.Ed.2d 396 (1982). The defense has both an objective and a subjective aspect, with the objective aspect involving a “presumptive knowledge of and respect for ‘basic, unquestioned constitutional -rights.’ ” Id. at 815, 102 S.Ct. 2727 (quoting Wood v. Strickland, 420 U.S. 308, 322, 95 S.Ct. 992, 1001, 43 L.Ed.2d 214 (1975)). “Qualified immunity shields government officials from civil damages liability unless the official violated a statutory or constitutional right that was clearly established at the time of the challenged conduct.” Taylor v. Barkes, — U.S. —, 135 S.Ct. 2042, 2044, 192 L.Ed.2d 78 (2015) (quoting Reichle v. Howards, — U.S. —, 132 S.Ct. 2088, 2093, 182 L.Ed.2d 985 (2012)). “In considering the applicability of qualified immunity, courts engage in a two-pronged examination[:] [fjirst, a court must decide ‘whether the facts that a plaintiff has... shown make out a violation of a constitutional right’ ” and “second, the court must determine ‘whether the right at issue was ‘clearly established’ at the time of defendant’s alleged misconduct.’” Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir.2015), petition for cert. filed, 800 F.3d 633 (U.S. November 3, 2015) (No. 15-571) (citing Pearson v. Callahan, 555 U.S. 223, 232, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009)). “Courts may begin their consideration with either prong.” Pearson, 555 U.S. at 236, 129 S.Ct. 808. “[T]he most helpful approach is to consider the constitutional question as being whether the officer made a reasonable mistake of fact, while the qualified immunity question is whether the officer was reasonably mistaken about the state of the law.” Curley v. Klem, 499 F.3d 199, 214 (3d Cir.2007). “To be clearly established, a right must be sufficiently clear that' every reasonable official would have understood that what he is doing violates that right.” Reichle, 132 S.Ct. at 2093, 182 L. Ed at 985. “[E]xisting precedent must have placed the statutory or constitutional question beyond debate” for a right to be clearly established. Id. The Supreme Court does “not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Taylor, 135 S.Ct. at 2044. “Summary judgment is appropriate if no reasonable juror could conclude that [the plaintiff]’s clearly established rights were violated.” Wilson v. Russo, 212 F.3d 781, 786 (3d Cir.2000).

“Where a police officer makes an arrest on the basis of oral statements by fellow officers, an officer will be entitled to qualified immunity from liability in a civil rights suit for unlawful arrest provided it was objectively reasonable for him to believe, on the basis of the statements, that probable cause for the arrest existed.” Rogers, 120 F.3d at 455. The inquiry has two parts: first, did the officer’s conduct violate clearly established law? Secondly, did the officer “nevertheless reasonably believe that his conduct was lawful in light of the information he possessed at the time?” Berg, 219 F.3d at 272.

The Commonwealth Defendants argue that it was objectively reasonable for Trooper Blair to assist Trooper Dughi in the arrest based on his observations. (Doc. 95, 43.) Trooper Blair indicated that Mr. Ward was shouting and using vulgarities when he first encountered the vehicle, and, after the vehicle was off the roadway,' he continued to hear yelling, despite not being able to hear what was being said. (Id. at 42; Doc. 94, Commw. Defs., Ex.C, 7, 22-23.) When Trooper Blair heard Trooper Dughi tell Mr. Ward to get out of the car and then tell Mr. Ward that he was under arrest, he approached to see what was going on. (Id. at 42; Doc. 94, Commw. Defs., Ex.C, 7, 22-23.) Commonwealth Defendants argue that Trooper Blair reason- • ably relied on his observations of Mr. Ward as well as Trooper Dughi’s statement to Mr. Ward that he was under arrest and thus should be entitled to qualified immunity on the unlawful or false arrest claim. (Doc. 95, 43.) Mr.. Ward argues that because Trooper Dughi did not have probable cause to arrest Mr. Ward based on the applicable Pennsylvania disorderly conduct statute, Trooper Blair could not objectively rely on the; statement of Trooper Dughi to Mr. Ward that he was under arrest. (Doc. 112, 30-33.) -Mr. Ward references Trooper Blair’s deposition testimony for the contention that Trooper Blair did not know what had been said in the vehicle. (Id. at 33.) Commonwealth Defendants counter that because “the’-situation could have escalated in any number of ways,” Trooper Blair relied on Trooper Dughi’s assertion that “Mr. Ward was under arrest and Mr. Ward’s refusal to exit the vehicle.” (Doc. 118, 30.)

Under Pennsylvania i Jaw, the Pennsylvania Supreme Court lias stated: “whether a defendant’s words or acts rise to the level of disorderly conduct hinges upon whether they cause or unjustifiably risk a public disturbance.” Com. v. Hock, 556 Pa. 409, 415-16, 728 A.2d 943, 946 (1999) (holding that the statement “F__ you, you a h ” when made to a police officer did not constitute fighting words). Additionally, “[w]hen the regulated conduct consists of speech,.. .the statute must ‘be carefully drawn or authoritatively corn strued to punish only unprotected speech and not be susceptible of application to protected expression.’” Gilles v. Davis, 427 F.3d 197, 204 (3d Cir.2005) (quoting Johnson v. Campbell, 332 F.3d 199, 211 (3d Cir.2003)) (citations omitted). “Speech that does not receive First Amendment protection, in turn,. ‘include[s] the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting* words.’ ” Gilles, 427 F.3d at 204 (citing Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942)). Fighting words are “those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky, 315 U.S. at 572, 62 S.Ct. at 769.

In Gilíes, the district court’s determination that the officer was entitled to qualified .immimity was, affirmed where the plaintiff singled out an individual with comments that the court deemed “especially abusive and constituted fighting words.” 427 F.3d at 205. Reasoning that where' a police officer is confronted by words “akin to a racial slur” and “with little time to parse” the speech, it was not unreasonable to believe the plaintiff engaged in disorderly conduct.” Id. at 206. In Tate v. West Norriton Twp., 545 F.Supp.2d 480 (E.D.Pa.2008), the court held that where the plaintiff stated “she needs f — ing •help” and, after being ordered to stop using profanity, responded “[w]hat the f_k word?”, the officer did not have probable cause to arrest the plaintiff for a violation of Pennsylvania’s disorderly conduct statute outlawing “obscene” words. Albeit in dicta, the court went on to further state that such words also did not constitute “fighting words” as outlawed by section 5503(a)(1); Id. at 487.

In the current case, it is undisputed that Mr. Ward remained in the vehicle while statements were made. Additionally, the vehicle was pulled off to the side of the roadway. The statements by Mr. Ward “I’ve been f — ing drinking”, ‘this is f — ing bulls — ’, and “I’ll shut my mouth”, do not rise to the level of fighting words. Such phrases, although certainly can be considered offensive, do not by themselves inflict injury nor can it be said they will bring about an immediate breach of peace. Therefore, the use of such words does not lead to probable cause to arrest for disorderly conduct. However, that does not end the inquiry with regard to Trooper Blair. Even if Mr. Ward has presented evidence that there was a violation of his constitutional rights, Trooper Blair can still be entitled to qualified immunity if his actions were objectively reasonable in light of what was available to him at the time.

In Rogers, a police officer was told by a probation officer, who was no longer supervising the plaintiff, that another county may have a detainer or warrant for the plaintiff. 120 F.3d 446. No such warrant existed but the officer took steps and made contacts to bring the plaintiff into custody. Id. at 451. When the plaintiff filed suit under § 1983 and the officer raised a qualified immunity defense based on the statements made to him, the court stated that: “[t]he relevant question is whether it was objectively reasonable for [the officer] to believe, on the basis of the statements, that probable .cause existed for the arrest.” Id. at 455. The court determined that, “in the absence of any statement confirming the existence of probable cause or a warrant itself,” the officer was not entitled to qualified immunity because reliance on the statement under the circumstances was not reasonable. Id. In Dull v. W. Manchester Twp. Police Dep’t, an officer who misinterpreted another officer’s statement to take the plaintiff to the station as an instruction to arrest, opposed to the intended desire to take her to the station for questioning, was deemed to be entitled to qualified immunity. 604 F.Supp.2d 739 (M.D.Pa.2009). Finding the officer could have reasonably believed he was being instructed to detain the plaintiff, the officer’s actions were objectively reasonable, allowing for qualified immunity on unlawful arrest and unlawful imprisonment claims. Id. at 752. The court reasoned that “guileless misunderstandings that result from spur-of-the-moment decision-making are not the type of pernicious constitutional violations that vitiate qualified immunity.” Id. at 753.

In the current case, Trooper Blair’s reliance on Trooper Dughi’s statement to Mr. Ward that he was under arrest was objectively reasonable to invoke qualified immunity. Despite the fact that Trooper Dughi did not have probable cause for the underlying arrest, it was not unreasonable for Trooper Blair to rely on the statement of a fellow trooper declaring an arrest. The entire matter spanned a very short period of time. Although Mr. Ward presented evidence that he asked Trooper Dughi what he was being arrested for but did not receive a response (Doc. 105-7, Pl’s-CSMF-Commw. Defs., Ex.G, 24.), no evidence has been presented that Trooper Blair knew Trooper Dughi did not have probable cause for arrest. Therefore, it was reasonable to rely on a statement of a fellow trooper when an encounter occurred outside of his immediate presence. I agree with Judge Conner’s statement that:

While probable cause for an arrest cannot arise from an officer’s ■ erroneous statements to fellow officers, those who' reasonably rely on inaccurate representations are nevertheless entitled- to quab ified immunity. The immunity thus prevents the inequitable situation that would result if an officer were held liable for reasonably relying on statements whose accuracy he or she has’ ho expedient means of verifying.

Dull, 604 F.Supp.2d at 752, n. 8. This casé falls within the ambit of the above language. Therefore, Trooper Blair is entitled to qualified immunity oñ Mr. Ward’s unlawful or false arrest claim.

2. COUNT II-Towanda Defendants

Towanda Borough- and Defendant Officers John Strozyk and James Hart move for summary judgment on Mr. Ward’s claims against them. However, Officers Strozyk and Hart fail to address Mr. Ward’s claim of unlawful arrest made against them and their motion for - summary judgment is devoid of mention of the claim. Mr. Ward’s Second Amended Complaint states “That the Defendants Strozyk and Hart participated in the arrest of Mr. Ward, since their actions restricted his freedom of movement, forcing him to remain . at the scene while the' Defendant Dughi illegally arrested Mr. Ward.” (Second Am. Compl., ¶ 87.) Therefore, Mr.! Ward’s claim for unlawful or false arrest against Officers Strozyk and Harbremains.

a. Excessive Force

Officers Strozyk and Hart move for summary judgment on Mr. Ward’s claims against for use of excessive force. (Doc. 82; Second Am. Compl., Count II.) Officers Strozyk and Hart argue that Mr. Ward “admitted that Stroyzk’s efforts in holding his head was an assistive measure so as to prevent Ward from hitting the ground.” (Doc. 86, 7-8.)- They further argue that the “record is entirely silent as to any unreasonable use of force by Officer Hart”, additionally citing to Mr. Ward’s testimony that: Officer Hart helped Mr. Ward to the ground. (Id.) Mr. Ward responds that defendants’ claim ignores evidence that Officers Strozyk and Hart grabbed Mr. Ward’s arms and pulled them behind him to be handcuffed. (Doc. 106, 7.)

The Fourth Amendment to the United States Constitution provides that “[t]he right of,the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, will not be violated....” U.S. Const. amend. IV. A“ claim for excessive force under the Fourth Amendment requires a plaintiff to show that a seizure occurred and that it was unreasonable,” Curley v. Klem, 298 F.3d 271, 279 (3d Cir.2002) (citing Abraham v. Raso, 183 F.3d 279, 288 (3d Cir.1999)), and '“[t]he use of excessive force is itself an unlawful ‘seizure’ under the Fourth Amendment,” Couden v. Duffy, 446 F.3d 483, 496 (3d Cir.2006) (citing Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); Carswell v. Borough of Homestead, 381 F.3d 235, 240 (3d Cir.2004)). “In deciding whether challenged conduct constitutes excessive force, a court must determine the objective ‘reásonableness’ of the challenged conduct, considering ‘the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officer or others, and whether he is actively resisting arrest- or attempting to evade arrest by flight.’ ” Couden, 446 F.3d at 496-97 (quoting Carswell, 381 F.3d at 240). “Other factors include ‘the duration of the [officer’s] 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.’ ” Couden, 446 F.3d at 497 (quoting Sharrar v. Felsing, 128 F.3d 810, 822 (3d Cir.1997)). This standard is one of objective reasonableness, and looks to “‘the reasonableness of the officer’s belief as to the appropriate level of force[,]’ which ‘should be judged from [the officer’s] on-scene perspective,’ and not in the ‘20/20 vision of hindsight.’ ” Curley, 499 F.3d at 206 (quoting Saucier v. Katz, 533 U.S. 194, 205, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)). Courts are instructed to “take into consideration the fact 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.’ ” Couden, 446 F.3d at 497 (quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865)).

“[Reasonableness under the Fourth Amendment should frequently remain a question for the jury.” Geist v. Ammary, 40 F.Supp.3d 467, 476 (E.D.Pa.2014) appeal dismissed, 617 Fed.Appx. 182 (3d Cir.2015) (quoting Abraham v. Raso, 183 F.3d 279, 290 (3d Cir.1999)). “Summary judgment may be possible, however, if the officer’s use of force was objectively reasonable under the circumstances after all factual disputes have been resolved in favor of the plaintiff’ and “[t]he use of a Taser during an arrest,.. .may be reasonable.” M

“Determining whether the force used to effect a particular seizure is ‘reasonable’ ... requires..'. careful attention to the,-facts and circumstances