Opinion
Civil No. 3:03-CV-1236-H.
September 29, 2004
MEMORANDUM OPINION AND ORDER
Before the Court are Defendants' Motion for Summary Judgment, filed July 19, 2004; Plaintiff's Response, filed August 11, 2004; and Defendants' Reply, filed August 26, 2004. Having considered the motions, briefs, and supporting evidentiary submissions of both parties, and for the reasons set forth below, the Court concludes that there are no genuine issues of material fact as to Plaintiff's claims against the City of Lancaster and therefore the City of Lancaster is entitled to summary judgment as a matter of law. As to Defendant Officer Henry and Defendant Officer Clark, the Court concludes that genuine issues of material fact remain so as to preclude summary judgment. Accordingly, Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part.
I. Background
On June 4, 2003, Plaintiff Alta Mae Teames brought the instant action against Officer Henry, Officer Clark, and the City of Lancaster, Texas, pursuant to 42 U.S.C. § 1983 and state law. The action arises out of events that occurred on June 28, 2002. On that day, Officer Henry, in his capacity as a City of Lancaster police officer, effected a traffic stop immediately in front of Plaintiff's home. Plaintiff's home is inside Dallas city limits. During the traffic stop, Officer Henry's police car completely blocked the driveway to Plaintiff's home. Plaintiff's husband, Mr. Teames, who was eighty-four years of age at the time, approached Officer Henry and requested Officer Henry to move the police car so that he could use his driveway. Officer Henry refused. Mr. Teames, attempting exit his driveway and show Officer Henry that the driveway needed to be used, then got into his own truck and rolled it towards the police car. In response, Officer Henry drew his gun, radioed for back up, and ordered Mr. Teames out of the vehicle. Mr. Teams returned his vehicle to its original position and exited the vehicle. Officer Henry holstered his gun, abandoned the traffic violator, and approached Mr. Teams to arrest him. In the process of arresting Mr. Teames, the two engaged in a physical struggle.
As the two struggled, Plaintiff asked Rebecca Leach, a family friend who witnessed the events as they unfolded, to call 9-1-1. Plaintiff, who was seventy-nine years of age at the time, then exited her home without the aid of her "walker" and stood on her front porch. Plaintiff pleaded with Officer Henry not to hurt her husband. As the struggle moved onto the porch, Officer Clark arrived at the scene. At this point Officer Clark — who was supervised by Officer Henry at the Lancaster Police Department — assisted in the arrest and in the process pushed Plaintiff off of the porch. Plaintiff sustained four fractures in her right leg and hip. Plaintiff was not interfering with any police officer or police action at the time. The factual scenario outlined above "emerges from viewing the summary judgment evidence in the light most favorable to the plaintiff."
"By outlining this factual scenario the court does not make a determination that the alleged conduct occurred. Rather, it concludes that there is evidence in the record that [is] interpreted in the light most favorable to the [non-movant.]" Castillo v. City of Weslaco, 369 F.3d 504, 506-07 (5th Cir. 2004).
The instant action ensued. The Court has previously denied Defendant's Rule 12(c) Motion for Judgment on the Pleadings, in its February 26, 2004, Order. Defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.
II. Legal Standards
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits and other summary judgment evidence show that no reasonable trier of fact could find for the nonmoving party as to any material fact. FED. R. CIV. P. 56; Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Sys. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Prop., Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25).
If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994). If the movant meets its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). The moving party may meet its initial burden by "by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the non-moving party's case." Celotex, 477 U.S. at 325. A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Ass'n, 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of material fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the nonmoving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. Analysis
Defendants move for summary judgment on the grounds that Plaintiff has not demonstrated: (1) that a policy, practice or custom of the City of Lancaster caused a constitutional deprivation, or that a constitutional deprivation even occurred; (2) that Defendants violated any clearly established right of the Plaintiff; (3) that Officer Henry was personally involved in a constitutional violation or his acts were causally connected to the constitutional violation alleged; or (4) that Officer Clark or Officer Henry are liable to Plaintiff's assault and battery claims. Officer Clark and Officer Henry argue that they are entitled to the defense of qualified immunity because a reasonable officer faced with the same circumstances could have believed that Defendants' actions were objectively legally reasonable.
A. City of Lancaster
The City of Lancaster contends that there is no evidence to establish that a policy or custom of the City of Lancaster caused Plaintiff's injury. (Def.'s Br. at 5.) Plaintiff relies solely on the facts surrounding her injury and the Lancaster Police Department's response as evidence of (1) a "policy or custom" of the City of Lancaster; (2) a constitutional violation whose "moving force" is that policy; and (3) actual or constructive knowledge of the policy. (Pl.'s Resp. at 17-25.) The Court must decide whether Plaintiff has tendered competent evidence raising genuine issues of material fact sufficient to defeat Defendants' summary judgment motion.
"Section 1983 offers no respondeat superior liability." Pineda v. City of Houston, 291 F.3d 325, 328 (5th Cir. 2002). For § 1983 liability to attach, there must be proof of "(1) an official policy (or custom), of which (2) a policy maker can be charged with actual or constructive knowledge, and (3) a constitutional violation whose "moving force" is that policy (or custom)." Id.; Monell v. Dep't of Soc. Servs., 436 U.S. 658 (1978). An official policy may be a statement, ordinance, regulation, or decision, or it may be "[a] persistent, widespread practice of city officials or employees, which, although not authorized by officially adopted or promulgated policy, is so common and well settled as to constitute a custom that fairly represents municipal policy." Johnson v. Deep East Texas Regional Narcotics Trafficking Task Force, 379 F.3d 293 (5th Cir. 2004). Under certain circumstances, the Fifth Circuit has held that a single decision by a policy maker or a single incident of a constitutional deprivation may constitute a policy for which a municipality may be liable under § 1983. See Brown v. Bryan County, OK, 219 F.3d 450, 459 (5th Cir. 2000); Grandstaff v. City of Borger, 767 F.2d 161, 171 (5th Cir. 1985). In City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985), the Supreme Court clarified whether evidence of a single incident of police misconduct is adequate to infer policy, i.e. knowledge and acquiescence by a city policymaker:
Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker. . . . But where the policy relied upon is not itself unconstitutional, considerably more proof than the single incident will be necessary in every case to establish both the requisite fault on the part of the municipality, and the causal connection between the "policy" and the constitutional deprivation.Tuttle, 471 U.S. at 824. Grandstaff distinguished Tuttle on the basis that multiple "instances of police misbehavior" occurred within the single incident of plaintiff's constitutional deprivation. Grandstaff, 767 F.2d at 171.
Plaintiff relies on Brown and Grandstaff for the proposition that "what occurred on June 28, 2002, and the City of Lancaster's response to these events [sic] demonstrates" a policy for which the municipality is liable. (Pl.'s Resp. at 17.) Other than the events encompassing her injury and the City's response thereto, Plaintiff introduces no independent evidence of a policy or custom, constitutional nor unconstitutional.
One of Plaintiff's claims alleges a failure to train on the part of the City of Lancaster, yet Plaintiff fails to offer any evidence on training.
In Brown, the municipality was held liable for the acts of a deputy who after a car chase arrested and injured the plaintiff in violation of plaintiff's constitutional rights. Brown, 219 F.3d 450. Section 1983 liability derived from the single decision of a policymaker not to train the deputy. Id. at 461-64. The outcome in Brown, was heavily influenced by evidence of prior incidents and notice showing the deputy's lack of training. Id. at 458-59. The municipality was held liable for the policy deemed from the policymaker's failure to act in the face of evidence showing notice that training was necessary. Brown is distinguishable because the court had evidence of events foreshadowing the § 1983 violation. Here, Plaintiff merely recounts the struggle and arrest moments before her injury and the police department's response thereto. Nothing in Plaintiff's evidence shows prior incidents or notice from which a trier of fact could infer a policy on the part of the City of Lancaster.
In Grandstaff, the constitutional deprivation was James Grandstaff's death. Grandstaff was killed when six City of Borger policemen shot him. "There was no direct testimony of prior misconduct within the Borger police force or of prior knowledge and state of mind of the [policymaker]" from which to infer the city's policy. Grandstaff, 767 F.2d at 171. But the evidence showed that on the evening of the constitutional deprivation, the Borger police force committed " repeated acts of abuse . . ., by several officers in several episodes, tending to prove a disposition to disregard human life and safety so prevalent as to be police policy or custom." Id. at 171 (emphasis added). The inference of city policy was supported by evidence of the police department's dangerous recklessness on the evening on of Grandstaff's death.
Equally important to the inference of policy in Grandstaff was the subsequent lack of disciplinary action in response to the incident: "[t]he disposition of the policymaker may be inferred from his conduct after the events of that night. . . . If that episode of such dangerous recklessness obtained so little attention and action by the City policymaker, the jury was entitled to conclude that it was accepted as the way things are done and have been done in the City of Borger." Id.
Even if the struggle with and arrest of an eighty-four year-old in close proximity of his seventy-nine year-old wife by two six-foot-tall, over 240 pound, (Pl.'s App. at 254, 272) Lancaster police officers were deadly force analogous to the Grandstaff deadly force, the reaction of the Borger policymakers is distinguishable. The facts in Grandstaff make clear that at least some reaction or change in policy should have emanated from the City of Borger. The facts in the instant case show that an investigation, albeit not to the satisfaction of Plaintiff, was requested by Lancaster Police Chief Daniel Shiner and conducted by the Dallas County Sheriff's Department. (Pl.'s App. at 217.) The City of Lancaster's reaction to the incident surrounding Plaintiff's injury will not support an inference of an official policy which caused a constitutional violation.
Plaintiff's case against the City of Lancaster is closer to Tuttle. In Tuttle, the plaintiff presented evidence of the apprehension, detention, and killing of Albert Tuttle. Tuttle, 471 U.S. at 811. The plaintiff also presented evidence "concerning the facts surrounding the incident, and also adduced testimony from an expert in police training practices [who had] review[ed] of the Oklahoma City police training curriculum." Id. at 811-12. The plaintiff did not introduce evidence of any similar incident within or involving any member of the Oklahoma City police force. Id. at 812. The plaintiff's theory in Tuttle is the same as Plaintiff's theory here: "that a municipal custom or policy had led to the constitutional violations." Id. The Supreme Court held it was error to allow the jury to "infer from a single unusually excessive use of force . . . that it was attributable to inadequate training or supervision amounting to deliberate indifference or gross negligence on the part of the officials in charge." Id. at 821. "To impose liability under those circumstances would be to impose it simply because the municipality hired one `bad apple.'" Id. Plaintiff's allegations of the following policies without evidence is insufficient to raise a genuine issues of material fact sufficient to defeat Defendants' motion for summary judgment: (1) inadequately and improperly investigating citizen complaints of police misconduct; (2) inadequately supervising and/or training its police officers; (3) sanctioning the use of force or deadly force when no cause exists; and (4) sanctioning the use of lies to allow police officers to cover-up police abuse.
As discussed above, "the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial." Matsushita, 475 U.S. at 587 (emphasis added). The Court is under no "duty to sift through the record in search of evidence" the Plaintiff has failed to designate in support of her opposition to summary judgment. See Malacara v. Gerber, 353 F3d 393, 405 (5th Cir. 2003).
Plaintiff has not shown any evidence that Defendant's unconstitutional activity was caused by an existing, unconstitutional municipal policy. "Proof of a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." Id. at 824. Since the Court finds insufficient evidence from which a rational trier of fact could infer a policy the Court deems moot whether there is any evidence of knowledge by the policymaker, actual or constructive and whether there is any evidence that any policy was the "moving force" causing a constitutional violation of Plaintiff's rights. Accordingly, Defendants' motion for summary judgment is GRANTED as to the City of Lancaster.
B. Individual Defendants
Both Officer Clark and Officer Henry assert qualified immunity as a defense to Plaintiff's § 1983 claims against them. The Court analyzes the qualified immunity defense under the Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982), two step approach. See Castillo v. City of Weslaco, 369 F.3d 504 (5th Cir. 2004); Hernandez ex rel. Hernandez v. Texas Dept. of Protective and Regulatory Services, 380 F.3d 872, 879 (5th Cir. 2004). "Qualified immunity is appropriate if the defendant's actions were `objectively reasonable' with reference to `clearly established law' at the time of the conduct in question. Castillo, 369 F.3d at 506; Hernandez, 380 F.3d at 879. The first step is to "identify the relevant clearly established law." Castillo, 369 F.3d at 506. The second step is to "determine whether the defendant's actions were objectively reasonable." Id. A motion for summary judgment based on the defense of qualified immunity requires the Court to determine if "there is evidence in the record that, when interpreted in the light most favorable to the plaintiff, establishes conduct by the defendant that violated clearly established law." Id. at 507. The Court, therefore, includes in its analysis "the factual scenario it believes emerges from viewing the summary judgment evidence in the light most favorable to the plaintiff." Id. at 506-07. 1. Clearly Established Right
It is well established that an individual has a constitutional right to be free from a law enforcement officer's use of excessive force. See Graham v. Connor, 490 U.S. 386, 395 (1989); Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003); Gutierrez v. City of San Antonio, 139 F.3d 441, 452 (5th Cir. 1998); Colston v. Barnhart, 130 F.3d 96, 99 (5th Cir. 1997); Spann v. Rainey, 987 F.2d 1110, 1115-16 n. 8 (5th Cir. 1993). It is equally well established that this constitutional right protects bystanders, not just prisoners, arrestees, or detainees. See Petta v. Rivera, 143 F.3d 895, 902 (5th Cir. 1998); Ikerd v. Blair, 101 F.3d 430, 433 n. 6 (5th Cir. 1996); Stroik v. Ponseti, 35 F.3d 155, 157-58 (5th Cir. 1994); Coon v. Ledbetter, 780 F.2d 1158, 1160-61 (5th Cir. 1986). A bystander's right to be free from a law enforcement officer's use of excessive force springs from the unreasonable seizure clause of the Fourth Amendment or from the due process clause of the Fourteenth Amendment. See Graham, 490 U.S. at 395 (1989) (" [A]ll claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard, rather than under a `substantive due process' approach."); Petta, 143 F.3d at 911 n. 25 ("[W]here a plaintiff's excessive force claim, whether he be a prisoner, arrestee, detainee, or an innocent bystander of tender years, falls outside of the protections of the Bill of Rights, that plaintiff may still seek redress under the due process clause of the Fourteenth Amendment."). For the following reasons, the Court concludes that Plaintiff has shown sufficient summary judgment evidence to raise a genuine issue of material fact regarding a violation of her Fourth Amendment rights.
For purposes of triggering the protections of the Fourth Amendment, a "seizure" occurs when an "officer, by means of physical force or show of authority, has in some way restrained the liberty of a person." Terry v. Ohio, 392 U.S. 1, 19 n. 16 (1968). See Brower v. County of Inyo, 489 U.S. 593, 596-97 (1989) (referring to a seizure as "a governmental termination of freedom of movement through means intentionally applied"). Thus, a "seizure" is not limited to instances where an officer arrests or detains an individual; it also includes other restraints by an officer on an individual's liberty. See Ikerd, 101 F.3d at 433 n. 6; Stroik, 35 F.3d at 157-58.
In the instant case, Plaintiff's allegations that she suffered a seizure triggers the protections of the Fourth Amendment. Viewing witness Rebecca Leach's June 28, 2002, voluntary statement the Lancaster Police (Pl.'s App. at 234); the June 28, 2002, Lancaster police report (Pl.'s App. at 293); the January 6, 2004, affidavit of Ms. Leach (Pl.'s App. at 232); and the June 29, 2004, deposition of Ms. Leach (Pl.'s App. at 179-80) in the light most favorable to the Plaintiff it is evident that Officer Clark used physical force sufficient to cause Plaintiff to fall off of her front porch and to fracture her leg and hip in four places. Although Plaintiff has not shown any direct evidence that Officer Clark's intent, from the evidence itemized above a rational fact finder could infer that Officer Clark intended to use physical force against Plaintiff, sufficient to push Plaintiff off of her front porch. This amounts to "a governmental termination of freedom of movement through means intentionally applied." Brower, 489 U.S. at 596-97.
2. Objective Reasonableness
For cases alleging excessive force in violation of the Fourth Amendment, "[a] plaintiff must prove injury suffered as a result of force that was objectively unreasonable." Mace v. City of Palestine, 333 F.3d 621, 624 (5th Cir. 2003). The reasonableness analysis requires a "balancing [of the] intrusion on the individual's Fourth Amendment interests against [the] promotion of legitimate governmental interests." Flores v. City of Palacios, 2004 WL 1775948, at *6 (5th Cir. 2004). "It is objectively unreasonable to use deadly force `unless it is necessary to prevent [a suspect's] escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others." Id. ( citing, Tennessee v. Garner, 471 U.S. 1, 3 (1985)). "The fact that police officers are required 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" is also considered. Gutierrez v. City of San Antonio, 139 F.3d 441, 447 (5th Cir. 1998). An officer is entitled to qualified immunity even where the officer reasonably but mistakenly uses excessive force. See id.
a. Officer Clark
In the instant case, Plaintiff has presented sufficient evidence to raise a genuine issue of material fact as to the use of excessive force in violation of Plaintiff's Fourth Amendment rights. The summary judgment evidence shows that Officer Clark saw an elderly man being arrested and an elderly woman (Plaintiff) standing on her porch pleading with the officers to not harm her husband. (Pl.'s App. at 274-75.) At the time of Officer Clark's arrival, he was not aware of the crime for which Mr. Teames was being arrested nor whether Plaintiff has committed any crime. ( Id.) The evidence indicates that Officer Clark was faced with the decision wether the elderly woman standing on the porch and the elderly unarmed subject being arrested posed an immediate threat to the officers or others. A rational trier of fact could not find that a seventy-nine year-old woman or an eighty-four year-old unarmed man posed an immediate threat to anyone. Although Mr. Teams was actively resisting arrest and allegedly evading arrest by flight, ( Id.) the amount of force necessary could not reasonably consist of intentionally using physical force against Plaintiff, sufficient to push Plaintiff off of her front porch. (See Pl.'s App. at 232, 234, 293, 179-80.) The evidence shows that Officer Clark did so despite Plaintiff's non-interference in the altercation between Officer Henry and her husband. Thus, on the evidence presented, a rational trier of fact could find for the non-movant, i.e. that Officer Clark used excessive force in violation of Plaintiff's Fourth Amendment rights.
Plaintiff's evidence is sufficient to overcome Officer Clark's defense of qualified immunity. As discussed above, the evidence, if proved, would "show that the officer's conduct violated a constitutional right," namely a bystander's right to be free from an officer's use of excessive force. Mace, 333 F.3d at 623 (internal quotations omitted). See Petta, 143 F.3d at 902; Ikerd, 101 F.3d at 433 n. 6; Stroik, 35 F.3d at 157-58; Coon, 780 F.2d at 1160-61. That constitutional right was clearly established in June 2002 when Officer Clark allegedly used excessive force in the instant case. In addition, on the evidence presented, a rational trier of fact could find for the non-movant, i.e. that "it would [have been] clear to a reasonable officer that his conduct was unlawful in the situation he confronted." Mace, 333 F.3d at 624 (internal quotations omitted). The Court recognizes that the inquiry for reasonableness on the merits of the excessive force claim and the inquiry for reasonableness on the merits of the qualified immunity defense are distinct. See Saucier v. Katz, 533 U.S. 194, 204-05 (2001) (recognizing that an officer who uses an unreasonable amount of force, reasonably believing that the law permits that amount of force, would still be entitled to qualified immunity). Nonetheless, the Court concludes that Plaintiff has presented summary judgment evidence which would allow a rational trier of fact to find that Officer Clark's defense of qualified immunity fails. Accordingly, Defendants' motion for summary judgment is DENIED as to Officer Clark.
b. Officer Henry
Plaintiff alleges that Officer Henry is liable for Officer Clark's use of excessive force due to Officer Henry's status as Officer Clark's supervisor. In order to state a claim under § 1983, Plaintiff "must identify defendants who were either personally involved in the constitutional violation or whose acts are causally connected to the constitutional violation alleged." Anderson v. Pasadena Ind. Sch. Dist., 184 F.3d 439, 443 (5th Cir. 1999). The summary judgment evidence does not indicate that Officer Henry was personally involved in Plaintiff's constitutional violation as described above. However, on the evidence presented, a rational trier of fact could find that Officer Henry initiated and fueled a series of events that directly led to Officer Clark's use of excessive force against Plaintiff. (Pl.'s App. at 245-47.) Plaintiff has presented evidence which shows that Officer Henry was Officer Clark's supervisor in June 2002 (Pl.'s App. at 242) and particularly, that Officer Henry was directly involved in the events producing Plaintiff's constitutional deprivation. (Pl.'s App. at 245-47, 274-75.) Plaintiff's evidence could lead a rational trier of fact to conclude that Officer Henry, as a police officer and as a supervisor, could have prevented the events from escalating into Officer Clark's use of excessive force against Plaintiff. Thus, Plaintiff has raised a genuine issue of material fact whether Officer Henry caused the constitutional violation or was personally involved in the constitutional violation. See Anderson, 184 F.3d at 443. Finally, for the reasons discussed above for Officer Clark, the Court concludes that Plaintiff has presented facts sufficient to overcome Officer Henry's defense of qualified immunity. Accordingly, Defendants' motion for summary judgment is DENIED as to Officer Henry.
2. Assault and Battery Claims
a. Officer Clark
In arguing that no seizure occurred, Officer Clark asserted that Plaintiff lacks any evidence of his intent. Officer Clark relies on the same argument to support his proposition that Plaintiff cannot succeed on her assault and battery claim. As discussed above, Plaintiff has shown sufficient summary judgment evidence raising a genuine issue as to Officer Clark's intent from which a rational trier of fact could infer that Officer Clark had the requisite intent. See discussion at B.1. above. Accordingly, Defendants' motion for summary judgment is DENIED as to Plaintiff's assault and battery claims against Officer Clark.
b. Officer Henry
The parties argue in passing, whether or not Plaintiff can succeed on her tort claims against Officer Henry. Giving due consideration to Plaintiff's and Defendants' arguments, the Court DENIES Defendants' motion as to Plaintiff's assault and battery claims against Officer Henry.
IV. Conclusion
For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED in part and DENIED in part. Specifically: Defendants' motion is GRANTED as to Plaintiff's claims against the City of Lancaster; Defendants' motion is DENIED as to Plaintiff's claims against Officer Clark; and Defendants' motion for summary judgment is DENIED as to Plaintiff's claims against Officer Henry. Accordingly, Plaintiff's claims against Defendant-City of Lancaster are hereby DISMISSED.
SO ORDERED.