MEHALCHICK, M.J.

(MANNION, D.J.)
() REPORT AND RECOMMENDATION

This is a civil rights action, initiated upon the filing of the original complaint in the Court of Common Pleas of Luzerne County by pro se Plaintiff Omar Morgan ("Morgan") on January 6, 2020. (Doc. 1-1). Defendants removed the matter to this Court on February 3, 2020. (Doc. 1). In his three-count complaint, Morgan asserts a civil rights claim under 42 U.S.C. § 1983, together with state law claims, against Plymouth Borough Police Officers Ogden and Lewis, the Plymouth Borough Police Department, and five John Doe Defendants who Morgan identifies only as employees and residents of the Commonwealth of Pennsylvania (collectively, the "Defendants"). (Doc. 1-1, at 3). Now pending before the Court is a Motion for Summary Judgment filed by the Defendants. (Doc. 7). For the reasons stated herein, it is recommended that the Motion for Summary Judgment be granted. I. SUMMARY OF MATERIAL FACTS

This factual background is taken from Defendants' statement of facts and accompanying exhibits. (Doc. 7). Morgan failed to provide a responsive Statement of Facts pursuant to Local Rule 56.1; however, since he is proceeding pro se, the Court will grant Defendants' motion only if they establish, through the record, that they are entitled to judgment as a matter of law. The facts have been taken in the light most favorable to Morgan as the non-moving party, with all reasonable inferences drawn in his favor.

The Plaintiff was arrested on February 12, 2019. (Doc. 7-2, ¶ 1; Doc. 1-1, at 4). The Plaintiff was arrested by Officers Ogden and Lewis. (Doc. 7-2, ¶ 2; Doc. 1-1, at 4). Officer Ogden and Officer Lewis arrested the Plaintiff in the course of their duties as police officers for the Plymouth Borough Police Department. (Doc. 7-2, ¶ 3; Doc. 1-1, at 4). The Plaintiff was involved in an altercation with the arresting police officers. (Doc. 7-2, ¶ 4; Doc. 1-1, at 4).

The Plaintiff was taken by the arresting police officers to the Emergency Room of the Wilkes-Barre General Hospital. (Doc. 7-2, ¶ 5; Doc. 1-1, at 5). The Police Criminal Complaint submitted with Affidavits of Officer Ogden and Officer Lewis is a true and accurate copy of the Police Criminal Complaint filed in connection with the arrest of the Plaintiff on February 12, 2019. (Doc. 7-2, ¶ 6). The Wilkes-Barre General Hospital records submitted by Defendants are also true and correct copies of the same. (Doc. 7-2, ¶ 7). At the time of this Motion, the Plaintiff was incarcerated in the Luzerne County Correctional Facility awaiting trial on the charges arising from the incident of February 12, 2019. (Doc. 7-2, ¶ 8). II. MOTION FOR SUMMARY JUDGMENT STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment should be granted only if "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). A fact is "material" only if it might affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is "genuine" if the evidence "is such that a reasonable jury could return a verdict for the non-moving party." Anderson, 477 U.S. at 248. In deciding a summary judgment motion, all inferences "should be drawn in the light most favorable to the non-moving party, and where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true." Pastore v. Bell Tel. Co. of Pa., 24 F.3d 508, 512 (3d Cir. 1994).

A federal court should grant summary judgment "if 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." Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 2000). 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 (1990). In deciding a motion for summary judgment, the court's function is not to make credibility determinations, weigh evidence, or draw inferences from the facts. Anderson, 477 U.S. at 249. Rather, the court must simply "determine whether there is a genuine issue for trial." Id.

"Although the party opposing summary judgment is entitled to the 'benefit of all factual inferences in the court's consideration of a motion for summary judgment, the nonmoving party must point to some evidence in the record that creates a genuine issue of material fact.'" Velentzas v. U.S., No. 4: CV -07-1255, 2010 WL 3896192, *7 (M.D. Pa. August 31, 2010) (quoting Goode v. Nash, 241 F. App'x 868, 868 (3d Cir. 2007) (citation omitted). The opposing party 'cannot rest solely on assertions made in the pleadings, legal memorandum, or oral argument.' Id. If the non-moving party "fails to make a showing sufficient to establish the existence of an element essential to [the non-movant's] case, and on which [the non-movant] will bear the burden of proof at trial," Rule 56 mandates the entry of summary judgment because such a failure "necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Jakimas v. Hoffmann-La Roche, Inc., 485 F.3d 770, 777 (3d Cir.2007). III. DISCUSSION

Defendants present three arguments in support of summary judgment in this case. First, they submit that Defendants Ogden and Lewis were met with an uncooperative suspect and so their use of force was justified. (Doc. 8, at 6-8). Second, they assert that any state law claim for assault and battery must fail because, as police officers, they were privileged to commit a battery in the course of a lawful arrest. (Doc. 8, at 9). Finally, they state that Morgan makes no allegations as to the Plymouth Borough Police Department and so summary judgment should be entered in favor of it. (Doc. 8, at 9-10).

A. MORGAN'S EXCESSIVE FORCE CLAIM

Morgan's Count I is labeled an "Eighth Amendment Violation." (Doc. 1-1, at 6). "When ... the excessive force claim arises in the context of an arrest or investigatory stop of a free citizen, it is most properly characterized as one invoking the protections of the Fourth Amendment..." Graham v. Connor, 490 U.S. 386, 394 (1989). Count I arises from Defendants' conduct during the course of his arrest on February 12, 2019. (Doc. 1-1, at 4-6). Therefore, Morgan's Count I will be construed as a Fourth Amendment claim.

Morgan alleges that on February 12, 2019, he was traveling to his sister's apartment via taxi when the taxi was pulled over and the driver was told to exit the cab "for an investigation of an alleged assault which never took place." (Doc. 1-1, at 4). Morgan states that Defendants ordered him out of the cab and that he was compliant with all of the Defendants' directives, but that "Officer Ogden kicked the Plaintiff to the ground without provocation and as the Plaintiff fell to the ground he was being kicked all over his body and severely stomped out by these police officers." (Doc. 1-1, at 4). This treatment allegedly continued, with Officer Lewis eventually shooting Morgan with a stun gun. (Doc. 1-1, at 4). Defendants took Morgan to the hospital where he received treatment. (Doc. 1-1, at 5). Morgan states that after receiving treatment, the abuse continued. (Doc. 1-1, at 5).

In moving for summary judgment, defendants submit that Morgan made attempts to escape and was physically violent. (Doc. 8, at 8). Citing the affidavits of the two arresting officers and the hospital records which are included in the record, Defendants state that Morgan brought the officers to the ground in resisting restraint. (Doc. 8, at 8). When Morgan was placed in the police vehicle, he "continued to thrash about violently, including hitting his head against the divider in the police car." (Doc. 8, at 8). According to Defendants, Morgan continued to exhibit "violent resistive behavior" at the hospital. (Doc. 8, at 8). As such, they contend that the force they used was necessary to effectuate Morgan's lawful arrest. (Doc. 8, at 8).

Police are in violation of the Fourth Amendment if their use of force "is excessive under objective standards of reasonableness." Green v. New Jersey State Police, 246 F. App'x 158, 161 (3d Cir. 2007) (citation omitted). Police have the right to use some degree of physical coercion. Graham, 490 U.S. at 396. When determining whether the use of force is reasonable, Courts must consider the perspective of a reasonable officer on the scene - keeping in mind that circumstances are often "tense, uncertain, and rapidly evolving." Green, 246 F. App'x at 161. Factors to consider include the severity of the crime at issue, the suspect's immediate threat to the safety of the officers or others, whether the suspect is actively resisting arrest or attempting to flee, the duration of the force, whether the force was used to effect the arrest, the possibility that the suspect was armed, and the number of persons whom the police officers must contend with at once. Green, 246 F. App'x at 161.

The Affidavit of Probable Cause, which Officers Ogden and Lewis swear under penalty of perjury is true and correct to the best of their knowledge, information and belief, demonstrates that Defendants were justified in their use of force. (Doc. 7-3, at 2; Doc. 7-4, at 2; Doc. 7-5). It shows that Officers Ogden and Lewis were notified of a report that an intoxicated male named Omar was being disruptive. (Doc. 7-5, at 1). After finding Morgan in a taxi cab, he was asked for identification and provided a false name and date of birth. (Doc. 7-5, at 1). He then began to walk away and ignored orders not to leave. (Doc. 7-5, at 1). Officer Ogden subsequently attempted to detain Morgan, "resulting in him attempting to twist away and slip out of my grasp." (Doc. 7-5, at 1). Morgan failed to comply with directions to give officers his hands and attempted to harm Ogden when "he reached back with his left hand and grabbed by left thumb and grasped it, twisting it..." (Doc. 7-5, at 2).

After a "substantial struggle," Morgan was taken into custody. (Doc. 7-5, at 2). Officer Ogden then noticed "a small black firearm laying on the ground, directly underneath [Morgan] after he was picked up. A check of the firearm revealed it was loaded with a round in the chamber." (Doc. 7-5, at 2). Once in the police car Morgan began "thrashing his body" and kicked at the officers. (Doc. 7-5, at 2). He hit his head off of the divider of the police car and kicked a door handle off the rear passenger side door. (Doc. 7-5, at 2). After identification at the Kingston Police Department, where Morgan exhibited further combative behavior, he was transported to Wilkes Barre General Hospital due to his being intoxicated and his request for medical attention. (Doc. 7-5, at 2). The facts described in the Affidavit of Probable Cause show that Morgan actively and seriously resisted arrest and tried to flee, the force was used to effect the arrest, and that Morgan posed an immediate threat to the safety of the officers. (Doc. 7-5).

In addition, the hospital records corroborate the substance of the Affidavit of Probable Cause. (Doc. 7-5; Doc. 7-7). Those records show that on February 12, 2019, Morgan was "increasingly agitated" and manipulative. (Doc. 7-7, at 8). The documentation also states that he was "aggressive with PD officers," was kicking, and "required assistance of multiple security officers to place [Morgan] into police cruiser." (Doc. 7-7, at 8). Once in the police car, Morgan used his limbs to prevent the doors from being closed. (Doc. 7-7, at 8). The medical records also state that Morgan was "resistive/combative upon arrival." (Doc. 7-7, at 8).

This record evidence demonstrates that Defendants' use of force was not excessive under objective standards of reasonableness. See Green, 246 F. App'x at 161. The Affidavit of Probable Cause and the hospital records establish that Morgan was combative, physically violent, and attempted escape. (Doc. 7-5; Doc. 7-7). He posed an immediate threat to the safety of officers and others at the hospital. (Doc. 7-5, at 2; Doc. 7-7, at 8). Finally, the force used by Defendants was to effectuate arrest. (Doc. 7-5). Morgan has not submitted any evidence on his part, therefore there is no genuine dispute as to these material facts. Since the factors described in Green favor the Defendants, it is respectfully recommended that Defendants' Motion for Summary Judgement is GRANTED as to Morgan's Fourth Amendment claim. (Doc. 7).

B. MORGAN'S STATE LAW CLAIMS

The remaining claims, though unclear, mention battery, assault, negligence, fraud, and emotional distress. As such, the Court construes these claims to be grounded in state law. Where a district court has dismissed all claims over which it had original jurisdiction, the Court may decline to exercise supplemental jurisdiction over state law claims. 28 U.S.C. § 1367(c)(3). Whether the Court will exercise supplemental jurisdiction is within its discretion. Kach v. Hose, 589 F.3d 626, 650 (3d Cir.2009). That decision should be based on "the values of judicial economy, convenience, fairness, and comity." Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350, 108 S.Ct. 614, 98 L.Ed.2d 720 (1988). Ordinarily, when all federal law claims have been dismissed and only state law claims remain, the balance of these factors indicates that these remaining claims properly belong in state court. Cohill, 484 U.S. at 350. Finding nothing in the record to distinguish this case from the ordinary one, the balance of factors in this case "point[s] toward declining to exercise jurisdiction over the remaining state law claims." See Cohill, 484 U.S. at 350 n. 7. Therefore, it is recommended that Morgan's state law claims be DISMISSED WITHOUT PREJUDICE pursuant to 28 U.S.C. § 1367(c)(3). IV. RECOMMENDATION

Based on the foregoing, it is recommended that Defendants' Motion for Summary Judgment be GRANTED and that this matter be closed. (Doc. 7). As it is recommended that summary judgment be granted, it is further recommended that Morgan's Motion to Appoint Counsel be DENIED as moot.

BY THE COURT: Dated: February 8, 2021

/s/ _________

KAROLINE MEHALCHICK

United States Magistrate Judge NOTICE

NOTICE IS HEREBY GIVEN that the undersigned has entered the foregoing Report and Recommendation dated February 8, 2021. Any party may obtain a review of the Report and Recommendation pursuant to Rule 72.3, which provides:

Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636(b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.

/s/ _________

KAROLINE MEHALCHICK

United States Magistrate Judge