PHILLIPS v. ALSLEBEN et al

Filing 37

MEMORANDUM AND ORDER AND THE PLF'S MOTION FOR SUMMARY JUDGMENT (DOC #20) IS DENIED. FURTHERMORE, THE PLFF'S CLAIMS OF UNLAWFUL ARREST AND RACE DISCRIMINATION IN VIOLATION OF THE EQUAL PROTECTION CLAUSE ARE DISMISSED AS BARRED. ( SIGNED BY HONORABLE LAWRENCE F. STENGEL ON 3/12/09. ) 3/13/09 ENTERED AND COPIES E-MAILED.(gn, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ERRICK PHILLIPS, Plaintiff v. TONY ALSLEBEN, et al., Defendants : : : : : : : CIVIL ACTION

NO. 08-1388

MEMORANDUM STENGEL, J. March 12, 2009

E rric k Phillips, a state prisoner incarcerated at SCI-Retreat, has brought a Section 1 9 8 3 action 1 against the officers who arrested him. He alleges violations of his First, F o u r th , Eighth, and Fourteenth Amendment rights; malicious prosecution; fraud; c o n sp ira c y; gross negligence; racial profiling; racial discrimination; and cruel and unusual p u n ishm en t. (Compl. at 8.) Mr. Phillips has moved for summary judgment. (See Pl.'s M e m . (Document #20).) After careful consideration of the parties' memoranda, I will d e n y the motion.

Section 1983 provides in pertinent part: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia subjects, or causes to be subjected, any citizen of the United States or other person . . . to the deprivation of any rights, privileges or immunities secured by the Constitution and law, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . ." 42 U.S.C. § 1983. Section 1983 does not by itself confer substantive rights, but instead provides a remedy for redress when a constitutionally protected right has been violated under the color of state law. Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985); Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906-07 (3d Cir. 1997). In order to succeed on a claim under 42 U.S.C. § 1983, a plaintiff must demonstrate: (1) the violation of a right secured by the Constitution, and (2) that the constitutional deprivation was committed by a person acting under the color of state law. West v. Atkins, 487 U.S. 42, 48 (1988). There is no dispute that each of the Individual Defendants, as Lehigh County officers or employees, acted under the color of state law at all relevant times.

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I . Background O n the morning of October 23, 2006, Mr. Phillips was in the vicinity of 19th and A lle n Streets in Allentown, Pennsylvania. Around 9 a.m., Mr. Chris Gabellini, a local b u s in e s s owner and member of the neighborhood crime watch, called the Allentown P o lic e Department regarding two suspicious individuals. He had observed them walking u p and down the block several times and looking into store fronts and parked cars; in p a rtic u la r, he noted that they were looking into a red GMC SUV. One was described as w e a rin g a brown hood, jeans, and black and white sneakers. This individual would later b e identified as Errick Phillips. T h e first responding officer was Allentown Police Officer Tony Alsleben. Officer A ls le b e n knew Mr. Gabellini and was aware that he was a member of the neighborhood c rim e watch. When he arrived on the scene, Officer Alsleben observed three individuals stan d ing on the sidewalk by a red SUV. He recognized one individual from Mr. G a b e l lin i 's description as wearing a brown hood, blue jeans, and white sneakers. O f f ic e r Alsleben parked his car some unspecified distance away from the in d iv id u a ls and began walking toward them. As the officer approached, the individual w h o would later be identified as Mr. Phillips began to walk away; the other two did not m o v e. Officer Alsleben noticed that Mr. Phillips was holding an item to which a cord w a s attached. It would later be identified as a laptop. Officer Alsleben asked Mr. Phillips to stop. Mr. Phillips' response was to quicken

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h is pace. Allegedly fearing for his safety, he eventually broke into a run while repeatedly s a yin g , "I didn't do anything wrong." Though Officer Alsleben gave chase, he lost sight o f Mr. Phillips, who had started to run through the backyards of the neighborhood homes. By this point, several other officers had come to assist: Officers Kevin Kennedy, C ra ig Koppel, Tony Sube, and Deputy Sheriff Eric Kester. While searching the area, D e p u ty Kester found Mr. Phillips lying in the fetal position beneath a car. Deputy Kester o rd e re d Mr. Phillips to come out. Mr. Phillips again tried to run but Deputy Kester was a b le to grab hold of his arm. Mr. Phillips continued to struggle. Officer Alsleben then ra n over to assist and grab hold of Mr. Phillips' other arm. At approximately the same tim e , the other officers arrived. A struggle ensued and the officers took Mr. Phillips to the ground. Mr. Phillips c o n tin u e d to struggle by kicking his legs and flailing his arms. The officers finally s u b d u e d and handcuffed Mr. Phillips. Officer Alsleben then found Mr. Phillips' jacket a n d laptop in the backyard of one of the local houses. The jacket was found to contain a g la ss pipe used for smoking crack cocaine. A f te r Mr. Phillips was in custody, Officer Alsleben noticed that Deputy Kester had b lo o d on his face; Officer Alsleben believed Mr. Phillips was responsible even though he d id not directly observe Mr. Phillips strike the deputy. Officer Kennedy was treated for a c h ip p e d tooth and sustained a bruise to the area around his eye. Mr. Phillips suffered ab rasion s to his face and lost a tooth; he has also complained that three other teeth were

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s e v e re ly loosened. O f f ic e r Alsleben was the criminal prosecutor for the charges against Mr. Phillips. He filed two charges of simple assault2 and two charges of aggravated assault3 for the in ju rie s Deputy Kester and Officer Kennedy sustained. He also charged Mr. Phillips with re sis tin g arrest,4 criminal trespass,5 disorderly conduct,6 and possession of drug p a ra p h e rn a lia .7 He was not charged for any actions occurring before Officer Alsleben h a d arrived. On July 20, 2007, the trial court considered Mr. Phillips' Motion for Writ of H a b e a s Corpus and dismissed both aggravated assault charges and one simple assault c h a rg e .

Mr. Phillips was charged with violating 18 Pa. Stat. Ann. § 2701(a)(1), which defines assault as an "[attempt] to cause or intentionally, knowingly or recklessly [cause] bodily injury to another." 18 Pa. Stat. Ann. § 2702(a)(3) defines aggravated assault as an"[attempt] to cause or intentionally or knowingly [cause] bodily injury to [a police officer] in the performance of duty." A person is guilty of resisting arrest "if, with the intent of preventing a public servant from effecting a lawful arrest . . ., the person creates a substantial risk of bodily injury to the public servant or anyone else, or employs means justifying or requiring substantial force to overcome the resistance." Id. § 5104. Officer Alsleben charged Mr. Phillips under 18 Pa. Stat. Ann. § 3503(b)(1)(iii), which makes it an offense to "[enter] or [remain] in a place as to which notice against trespass is given by fencing or other enclosure manifestly designed to exclude intruders." The information filed by the district attorney later changed this charge as being under § 3501(b)(1)(i), which covers notice against trespass given by actual communication to the actor. 18 Pa. Stat. Ann. § 5503(a)(1) makes it a crime to engage in fighting or threatening, or in violent or tumultuous behavior, with the intent of causing public inconvenience, annoyance or alarm, or recklessly creating a risk thereof. 35 Pa. Stat. Ann. § 780.113(a)(32) makes it a crime to possess with intent to use drug paraphernalia for the purpose of ingesting, inhaling, or otherwise introducing a controlled substance into the human body.
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T h e trial was held on September 5, 2007. The jury returned its verdict on S e p te m b e r 6, 2007, finding Mr. Phillips guilty of resisting arrest and possession of drug p a ra p h e rn a lia . He was acquitted of the disorderly conduct, simple assault, and criminal tre sp a ss charges. Mr. Phillips was sentenced on October 30, 2007, to a term of nine to tw e n ty-f o u r months for the resisting arrest charge and a concurrent twelve month term for th e possession charge. O n May 6, 2008, Mr. Phillips filed this Section 1983 complaint, which presents a p a ra d e of legal claims ranging from unlawful arrest to fraud to First Amendment v i o la tio n s . (See Compl. at 8.) Mr. Phillips' motion for summary judgment refines these c la im s . Viewing the complaint in tandem with the summary judgment memorandum, I u n d e rs ta n d Mr. Phillips to be presenting claims for (1) Malicious prosecution; (2) U n la w f u l arrest; (3) Racial discrimination and profiling; (4) Use of excessive force; and ( 5 ) Intentional infliction of emotional distress.

I I . Standard of review S u m m a ry judgment is appropriate "if the pleadings, depositions, answers to in ter ro g a to rie s, and admissions on file, together with affidavits, if any, show that there is n o genuine issue as to any material fact and that the moving party is entitled to judgment a s a matter of law." FED. R. CIV. P. 56(c). An issue is "genuine" when a reasonable jury c o u ld return a verdict for the non-moving party based on the evidence in the record.

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A n d e rso n v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is " m a te ria l" when it could affect the outcome of the case under the governing law. Id. A party seeking summary judgment initially bears responsibility for informing the c o u rt of the basis for its motion and identifying those portions of the record that it b e lie v e s demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. C a tre tt, 477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof o n a particular issue at trial, the moving party's initial Celotex burden can be met simply b y demonstrating "to the district court that there is an absence of evidence to support the n o n -m o v in g party's case." Celotex, 477 U.S. at 325. After the moving party has met its in itia l burden, "the adverse party's response, by affidavits or otherwise as provided in this r u le , must set forth specific facts showing that there is a genuine issue for trial." FED. R. C IV. P. 56(e). Summary judgment is therefore appropriate when the non-moving party f a ils to rebut by making a factual showing that is "sufficient to establish the existence of a n element essential to that party's case, and on which that party will bear the burden of p ro o f at trial." Celotex, 477 U.S. at 322. U n d e r Rule 56 of the Federal Rules of Civil Procedure, the court must view the e v id e n c e in the record in the light most favorable to the non-moving party and draw all r e a so n a b l e inferences in favor of that party. Anderson, 477 U.S. at 255. The court must d ec ide not whether the evidence unmistakably favors one side or the other, but whether a f a ir-m in d e d jury could return a verdict for the plaintiff on the evidence presented. Id. at

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2 5 2 . If the non-moving party has produced more than a "mere scintilla of evidence" d e m o n s tra tin g a genuine issue of material fact, then the court may not credit the moving p a rty's version of events against the opponent, even if the quantity of the moving party's e v id e n c e far outweighs that of its opponent. Big Apple BMW, Inc. v. BMW of N. Am., Inc ., 974 F.2d 1358, 1363 (3d Cir. 1992).

I I I . Discussion 1 ) Application of Heck v. Humphrey A s a preliminary matter, I consider the defendants' argument that this suit is barred u n d e r the Supreme Court's holding in Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, th e Court stated that a prisoner may not use a Section 1983 claim to challenge the validity o f his conviction. Id. at 486. "[I]n order to recover damages for . . . [harms] caused by a c tio n s whose unlawfulness would render a conviction or sentence invalid, a § 1983 p lain tiff must prove that the conviction or sentence has been reversed on direct appeal, e x p u n g e d by executive order, declared invalid by a state tribunal authorized to make such d e te rm in a tio n , or called into question by a federal court's issuance of a writ of habeas c o rp u s ." Id. at 486­87. The court must consider "whether a judgment in favor of the [ p ris o n e r] would necessarily imply the invalidity of his conviction or sentence." Id. at 4 8 7 . If a favorable judgment would invalidate the conviction or sentence, then the action m a y not be considered and must be dismissed.

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T h e defendants argue that Mr. Phillips' claim is barred under this rule because his c o n v ic tio n and/or sentence have not been reversed, declared invalid, or expunged. (Defs.' Mem. at 6­7.) Mr. Phillips counters that his claims are for charges that had been d is m is s e d or for which he had been found acquitted. After careful consideration of the p a rtie s' arguments, I find that Mr. Phillips' malicious prosecution, excessive force, and in te n tio n a l infliction of emotional distress claims are not barred by Heck, but his equal p ro te c tio n and unlawful arrest claims are barred. a ) Claims not barred under Heck T h e malicious prosecution claim is not barred. The claim is made with respect to th e dismissed and acquitted charges. A verdict in Mr. Phillips' favor would not invalidate h is conviction or sentence, which necessarily were on other charges. See, e.g., Kalomiris v . Monroe County Syndicate, 2009 WL 73785, at *8­9 (M.D. Pa. Jan. 8, 2009) (allowing a malicious prosecution claim to go forward because it was based on charges that had b ee n dismissed). T h e excessive force claim is not barred. The officers may have had reasonable g ro u n d s to make a lawful arrest, but they were not entitled to use excessive force in m a k in g that arrest. A finding that the defendants employed excessive force does not n e c es s a rily negate the lawfulness of his arrest. See, e.g., Nelson v. Jashurek, 109 F.3d 1 4 2 , 145­46 (3d Cir. 1997) (finding an excessive force claim not barred by Heck despite a prior conviction for resisting a lawful arrest).

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T h e intentional infliction of emotional distress claim is not barred as a favorable ru lin g has no effect on the validity of Mr. Phillips' conviction. b ) Claims barred by Heck I find that Mr. Phillips' equal protection claim is barred. The Third Circuit has u n e q u iv o c a lly stated that "[i]f a person can demonstrate that he was subjected to selective e n f o r c e m e n t in violation of his Equal Protection rights, his conviction will be invalid." Gibson v. Superintendent of N.J. Dept. of Law & Pub. Safety, 411 F.3d 427, 440­41 (3d C ir. 2005); see also Cook v. Layton, 2008 WL 4927327, at *1 (3d Cir. 2008) ("[A] s u c c es s f u l claim of racially discriminatory enforcement of the law would invalidate the re su ltin g conviction and sentence."). Because a favorable verdict on this claim would n e c es s a rily invalidate Mr. Phillips' conviction or sentence, it is barred. T h e resisting arrest claim is also barred under Heck. Mr. Phillips was convicted of re sis tin g arrest. Under Pennsylvania law, one of the elements of a resisting arrest charge is that the officer was making a lawful arrest. See 18 PA. STAT. ANN. § 5104 ("A person [ is guilty of resisting arrest] if, with the intent of preventing a public servant from e ffe c tin g a lawful arrest or discharging any other duty, the person creates a substantial ris k of bodily injury to the public servant or anyone else . . . ." (emphasis added)). A f in d in g that Mr. Phillips was unlawfully arrested necessarily invalidates that conviction. Indeed, this very situation was envisioned by the Court as one where the Heck bar is a p p lic a b le . See Heck, 512 U.S. at 487 n.6 (stating that a prisoner convicted of resisting

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a rre st cannot bring a § 1983 action for unlawful arrest when an element of the crime is that the officer was making a lawful arrest). H a v in g determined which claims are not barred by Heck, I will now consider the c la im s for malicious prosecution and excessive force. 2 ) Malicious prosecution M r. Phillips has alleged that he was maliciously prosecuted in violation of his F irst, Fourth, and Fourteenth Amendment rights. I will deny his motion as to all a r g u m e n t s. a ) First Amendment M r . Phillips has made no argument regarding what violations to his First A m e n d m e n t rights he sustained. His motion is denied as to this part . b ) Fourth Amendment T o succeed on a Fourth Amendment-based malicious prosecution claim under S e c tio n 1983, a plaintiff must show that the defendant (1) instituted legal proceedings ag ains t him (2) without probable cause, (3) with malice, (4) that the proceedings were te rm in a te d in his favor, and (5) he suffered a deprivation of his liberty consistent with the c o n c ep t of seizure as a consequence of the proceedings. Johnson v. Knorr, 477 F.3d 75, 8 2 (3d Cir. 2006). It is undisputed that at least one of the defendants was responsible for instituting th e legal proceedings: Officer Alsleben has admitted that he was responsible for charging

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M r. Phillips. (Defs.' Statement of Undisputed Facts ¶ 112; see also Defs.' Mem. at 16 (" O f f ice r Alsleben had sufficient probable cause to charge Plaintiff with the two counts o f aggravated assault.").) T h e second element requires determining whether the defendants lacked probable c a u se in instituting the proceedings. Probable cause exists when "the facts and c irc u m sta n c e s within the [initiating party's] knowledge and of which [he] had reasonably tru s tw o rth y information were sufficient to warrant a prudent man in believing that the p la in tif f had violated the law." Collins v. Christie, 2008 WL 2736418, at *12 (E.D. Pa. J u ly 11, 2008) (first alteration added) (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1 9 9 1 )). The probable cause standard does not require the officer to conduct an extensive in v e s tig a tio n before making an arrest. Id. Mr. Phillips has not established that the defendants lacked probable cause. The p a rtie s ' descriptions of the underlying events highlight the factual questions remaining. Mr. Phillips argues that Officer Alsleben lacked probable cause to charge him with a s s a u ltin g Officer Kennedy as he was already pinned down when the officer had arrived. (Pl.'s Statement of Undisputed Facts ¶¶ 33, 37; Pl.'s Reply to Defs.' Statement of U n d isp u ted Facts ¶¶ 100­101.) Consequently, it would have been impossible for him to h it the officer around the eye and mouth. He also argues there was no basis for the charges that he assaulted Deputy Kester. He claims he was not responsible for bloodying Deputy Kester's face, which was

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c o n f irm e d by the deputy's testimony. (Pl.'s Reply Mem. at 10 ("Defendant Kester clearly te stif ie d : `I don't believe the Plaintiff hit me in the face, the blood was later determined o n my face was, my own or the Plaintiff's from the struggle.'").) Officer Alsleben was alleg ed ly aware of this but decided to proceed with those charges anyway. (Id.) The defendants respond that when Officer Alsleben decided to include charges for s im p le and aggravated assault, he reasonably believed that "Deputy Kester had been p u n c h e d in the face by [Mr. Phillips] and that the blood on his face was caused by that p u n ch ." (Defs.' Statement of Undisputed Facts ¶ 113.) His decision to charge Mr. P h illip s for assaulting Officer Kennedy was supported by probable cause as it was made a f te r he was informed by the officer himself that Mr. Phillips had struck him and chipped h is tooth. (Id. ¶ 114.) Probable cause also existed for the criminal trespass charge b e c au s e Officer Alsleben had observed "[Mr. Phillips] going through several area back ya rd s during the foot pursuit, including one that was enclosed by a chain link fence." (Defs.' Mem. at 3.) Additionally, Mr. Phillips' jacket and laptop computer were found in a backyard enclosed by fencing. R e so lv in g these competing arguments will require a highly factual inquiry of what O f f ic e r Alsleben believed at the time he initiated the charges and whether those beliefs w e re reasonable. Because the defendants have demonstrated that a genuine issue of m a ter ial fact remains with respect to these issues, Mr. Phillips' motion as to this part is d e n ie d . I need not consider the other elements of the claim.

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c ) Fourteenth Amendment T h e malicious prosecution claim is also brought under the Fourteenth A m e n d m e n t's procedural due process protections. See Merkle v. Upper Dublin Sch. D ist., 211 F.3d 782, 792 (3d Cir. 2000) ("[A] section 1983 malicious prosecution claim c o u ld be based on a constitutional provision other than the Fourth Amendment, including th e procedural component of the Due Process Clause, so long as it was not based on su b sta n tiv e due process."). I will deny the motion as to this part. T h e legal parameters of such a claim are ill-defined. See, e.g., Randall v. R e yn o ld s , 2006 WL 2788190, at *4 (E.D. Pa. Sept. 25, 2006) ("[T]he law is unclear how a plaintiff would proceed on a malicious prosecution claim under the procedural due p ro c e ss clause . . . ."). A majority of the malicious prosecution claims in this circuit have b e e n analyzed under the Fourth Amendment's standards. See, e.g., Bergdoll v. City of Y o rk , 2009 WL 25093, at *5 (M.D. Pa. Jan. 5, 2009); Swedron v. Borough, 2008 WL 5 0 5 1 3 9 9 , at *5­6 (W.D. Pa. Nov. 21, 2008); Randall, 2006 WL 2788190, at *5­8; P o m yk ac z v. Borough of W. Wildwood, 438 F. Supp. 2d 504, 511 n.10 (D.N.J. 2006). D e sp ite this uncertainty, denial is proper because Mr. Phillips has failed to e sta b lis h that the defendants lacked probable cause. Whether brought under the Fourth or th e Fourteenth Amendment, a malicious prosecution claim requires proof that the p ro c e ed in g s were initiated without probable cause. See Estate of Smith v. Marasco, 318 F .3 d 497, 521 (3d Cir. 2003). As discussed above, Mr. Phillips has not established that

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th e defendants lacked probable cause. His motion on this part must be denied. 3 ) Excessive use of force M r. Phillips alleges the defendants used excessive force when arresting him. Excessive force claims brought under Section 1983 must be "judged by reference to the s p e c if ic constitutional standard which governs that right, rather than to some generalized `e x c e s s iv e force' standard." Graham v. Connor, 490 U.S. 386, 394 (1989). These claims m a y be based on the Fourth Amendment's protection from unreasonable searches or seizu res, or the Eighth Amendment's proscription of "cruel and unusual punishment." In o th e r cases where the claim arises from the use of force but not in the context of a search, s e iz u re , or incarceration, the substantive portion of the Fourteenth Amendment's Due P r o c e ss Clause may be applied. See County of Sacramento v. Lewis, 523 U.S. 833, 8 4 3 ­ 4 5 (1998). Mr. Phillips brings his claim under all three amendments. I will deny his m o tio n as to all three. a ) Fourth Amendment C laim s that an officer used excessive force when seizing an individual are a n a lyz e d under the Fourth Amendment. See McCarthy v. County of Bucks, 2008 WL 5 1 8 7 8 8 9 , at *3 (E.D. Pa. Dec. 8, 2008) (citing Graham, 490 U.S. at 395). A seizure o c c u rs when "an officer restrains the freedom of a person to walk away." Tennessee v. G a rn e r, 471 U.S. 1, 7 (1985). It is indisputable that Mr. Phillips was "seized" when he w a s arrested.

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T h e inquiry does not end here. Mr. Phillips must also show that the defendants h a d acted unreasonably because the Fourth Amendment protects against "unreasonable s e a rc h e s and seizures." U.S. CONST. amend IV (emphasis added). Typically, re a so n a b le n e ss of the use of force is a factual issue to be determined by the jury. See A b rah am v. Raso, 183 F.3d 279, 290 (3d Cir. 1999). The reasonableness of a seizure m u s t be considered "from the perspective of a reasonable officer on the scene, rather than w ith the 20/20 vision of hindsight." Graham, 490 U.S. at 396­97. Evaluations of such c la im s must allow "for the fact that police officers are often forced to make split-second ju d g m e n ts ­ in circumstances that are often tense, uncertain, and rapidly evolving­about th e amount of force that is necessary in a particular situation." Id. The standard is objective. Courts do not consider the officer's intent or motivation, b u t only whether the actions were objectively reasonable in light of the facts and c irc u m s ta n c e s facing the officer at the time. Id. at 397. This question cannot be resolved at this time. The parties disagree over key facts su c h as whether Mr. Phillips' hands and feet were pinned down, whether he actually s tru c k any officer, whether he was slammed to the ground or fell, and whether he pulled D e p u ty Kester over the hood of a car. The amount of force the officers would have b e lie v e d to be appropriate to use would have varied with the suspect's actions. The fact th a t Mr. Phillips walked (or ran) away when Officer Alsleben approached and asked him to stop is one factor to be considered. Mr. Phillips' attempts to hide and evade detention

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a re also germane. Similarly, resolution of the factual disputes previously described may a ls o effect what amount of force the police could have reasonably used at that time. Because Mr. Phillips has not conclusively shown that the defendants acted unreasonably, h is motion is denied as to this part. b ) Eighth Amendment T h e constitutional protections of the Eighth Amendment attach when the defendant h a s been found guilty of the charged crimes and is subject to punishment by the state. See H u b b ard v. Taylor, 399 F.3d 150, 167 (3d Cir. 2005) ("[I]t is clear that plaintiffs here are n o t within the ambit of the Eighth Amendment's protection against cruel and unusual p u n is h m e n t. They are not yet at a stage of the criminal process where they can be p u n is h e d because they have not as yet been convicted of anything." (internal quotation m a rk s and citations omitted)). None of Mr. Phillips' factual allegations arise from events o c c u rrin g after his conviction and sentencing. Consequently, the Eighth Amendment is n o t applicable, and Mr. Phillips has no valid claim on this point. c ) Fourteenth Amendment procedural and substantive due process M r. Phillips is not entitled to summary judgment on the procedural and substantive d u e process excessive force claims. (See Pl.'s Reply to Defs.' Mem. at 8­9.) All claims th a t law enforcement officers employed excessive force in the course of an arrest or other s e iz u re are to be analyzed under the Fourth Amendment's reasonableness test and not the s u b s ta n tiv e due process standard. See Washington v. City of Philadelphia, 1990 WL

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1 0 7 6 5 1 , at *3 (E.D. Pa. July 26, 1990) (citing Graham, 490 U.S. at 295). His substantive d u e process claim cannot lie. T h e motion is also denied as to the procedural due process claim. Mr. Phillips has ra is e d no claims as to what procedures he was due, or what pre- or post-deprivation re m e d ies were inadequate. Given his failure to set forth a claim presenting a cognizable p ro c e d u ra l due process claim, Mr. Phillips' motion is denied as to this part. 4 ) Intentional infliction of emotional distress M r. Phillips has reserved the right to seek damages for his alleged emotional d is tre s s pending the outcome of his 1983 action. (Pl.'s Reply to Defs.' Mem. at 9.) The c o u rt need not consider it now and may deny the motion as to this part.

I V . Conclusion F o r the foregoing reasons, I will deny the motion for summary judgment. An a p p r o p r ia te Order follows.

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ERRICK PHILLIPS, Plaintiff v. TONY ALSLEBEN, et al., Defendants : : : : : : : CIVIL ACTION

NO. 08-1388

ORDER STENGEL, J.

AND NOW, this 12th day of March, 2009, upon consideration of the plaintiff's Motion for Summary Judgment (Document 20), it is hereby ORDERED that the motion is DENIED. FURTHERMORE, the plaintiff's claims of unlawful arrest and race discrimination in violation of the Equal Protection Clause are hereby DISMISSED as barred.1

BY THE COURT:

/s/ Lawrence F. Stengel LAWRENCE F. STENGEL, J.

In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme Court ruled that a Section 1983 claim could not be used to circumvent established procedures for collateral review of a conviction or other judgment. Consequently, I must consider "whether a judgment in favor of the [prisoner] would necessarily imply the invalidity of his conviction or sentence." Id. at 487. If a favorable judgment would invalidate the conviction or sentence, then the action may not be considered and must be dismissed. For the reasons discussed in the accompanying memorandum, a favorable judgment on either the unlawful arrest or the race discrimination claim would necessarily invalidate Mr. Phillips' conviction. Consequently, they must be dismissed unless Mr. Phillips can demonstrate that the underlying conviction has been reversed or declared invalid. Id. at 486­87.

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