The opinion of the court was delivered by: Rodriguez, J.
Presently before the Court are four motions: Defendant Riverside Township's motion for summary judgment, Defendant Patrick Vacanti's (hereinafter "Vacanti") motion for summary judgment, and Plaintiff Jack David Wagner's (hereinafter "Wagner" or "Plaintiff") two cross-motions to strike several exhibits used by both Defendants in support of their respective summary judgment motions. On November 1, 2007, the Court heard oral argument on the motions and issued the following rulings. First, Plaintiff's motions to strike all of the exhibits attached to both motions for summary judgment were GRANTED IN PART and DENIED IN PART; all of the exhibits with the exception of Officer Vacanti's training records were struck from Defendants' summary judgment motions. Second, John Does (1-5) and the Riverside Township Police Department were DISMISSED from the Complaint. The remaining issues were reserved for consideration and are addressed in this opinion. For the reasons that follow, Riverside Township's motion for summary judgment is DENIED and Officer Patrick Vacanti's motion for summary judgment is DENIED.
The underlying historical facts of this case are very much in dispute. On a motion for summary judgment, the case law directs the Court to consider the facts in a light most favorable to the non-moving party. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151 (2001). Pursuant to that directive, the facts of this case are as follows.
On or about March 3, 2002, at approximately 6:15 in the evening, Plaintiff was walking towards Derby's bar in Riverside Township. Plaintiff's neighbors, Rhonda and Ronald Lallo (the "Lallos"), pulled their car up alongside the curb near Derby's and Plaintiff engaged them in conversation. Plaintiff was squatting, with his hands leaning on the open window on the passenger side of the car, which was occupied by Rhonda Lallo. A Riverside Township police cruiser, operated by Defendant Officer Patrick Vacanti, pulled up behind the Lallos' vehicle, prompting Wagner to comment "[w]hat the hell do they want?" As he spoke, he waived his arm in the air in the direction of the police cruiser. The parties dispute the nature of the comment, with Plaintiff and the Lallos suggesting that it was a non-threatening statement made with a normal speaking voice and accompanied by a benign gesture and Vacanti contending that the comment was made with a screaming voice and a gesture intended to waive him off. Following the comment, Vacanti activated the overhead lights on the police cruiser, apparently to conduct a traffic stop of the Lallos' vehicle for illegal parking or obstructing traffic.
According to Plaintiff, Vacanti exited his police cruiser and repeatedly screamed at him to stand up. Plagued by an ailing back, Plaintiff told Vacanti of this injury, attempted to obey his order, but was slow to rise. Then, Officer Vacanti grabbed Plaintiff, pulled him up, and struck him in the knee with a metal object, later determined to be Vacanti's "ASP" baton. Vacanti dragged Plaintiff towards the police cruiser, where Plaintiff was thrown onto the hood of the car, handcuffed, and placed in the back of the vehicle. Plaintiff contends that during this course of events he repeatedly told Vacanti that he had a back injury, a contention endorsed by the Lallos. Vacanti issued the Lallos a traffic ticket for illegal parking.*fn1
Both Plaintiff and the Lallos contend that Vacanti tailgated the Lallos as they drove home until the police cruiser pulled in the parking lot of the Municipal Building. Once in the parking lot, Plaintiff claims that he was dragged out of the car, causing further injury to his back. In addition, Plaintiff alleges that he was not permitted to use the bathroom, he endured verbal assaults from various police officers, and that he was eventually taken to the hospital for evaluation. Citations for aggravated assault of a police officer, obstruction of justice, resisting arrest and disorderly conduct were issued to Plaintiff, however, he states that all of these charges were administratively dismissed. Coincidentally, Officer Vacanti was indicted on seventeen counts of criminal conduct related to this incident. During oral argument, counsel for Vacanti advised that some of the charges against Officer Vacanti were downgraded and that, at trial, he was acquitted of all charges.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate where the Court is satisfied that "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." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c). An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
Plaintiff's Complaint alleges both common law and Constitutional claims against Riverside Township. Plaintiff's Constitutional claims are governed by Title 42 U.S.C. § 1983, which provides a civil remedy against any person who, under color of state law, deprives another of rights protected by the United States Constitution. See Collins v. City of Harker Heights, 503 U.S. 115, 120 (1992). A Plaintiff must demonstrate two essential elements to maintain a claim under § 1983: (1) that the Plaintiff was deprived of a "right or privileges secured by the Constitution or the laws of the United States" and (2) that Plaintiff was deprived of his rights by a person acting under the color of state law. Williams v. Borough of West Chester, Pa, 891 F.2d 458, 464 (3d Cir. 1989) Here, there is no dispute that Officer Vacanti was acting under color of state law because he was a police officer acting in the line of duty. Thus, the Court must determine whether there was a Constitutional deprivation.
Summary judgment for Riverside Township is denied. A municipality is not liable under 42 U.S.C. § 1983 on a respondeat superior theory. Monell v. Dept. Soc. Servs. of New York, 436 U.S. 658, 691 (1978). However, a government entity may be liable for its agent's actions upon a demonstration that a policy or custom of the municipality caused, or was a "moving force" behind, the alleged violation of Plaintiff's rights. Kentucky v. Graham, 473 U.S. 159, 166 (1985) (quoting Polk County v. Dodson, 454 U.S. 312, 326 (1981)); Beck v. City of Pittsburgh, 89 F.3d 966, 971 (3d cir. 1996). Thus, in order to prevail against the government entity, "[a] plaintiff must identify the challenged policy, attribute it to the city itself, and show a causal link between execution of the policy and the injury suffered." Losch v. Parkesburg, 736 F.2d 903, 910 (3d Cir.1984). Further, Plaintiff must show that the municipality acted with "deliberate indifference" to the known policy or custom. Canton v. Harris, 489 U.S. 378, 388, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989). "A showing of simple or even heightened negligence will not suffice." Bd. of County Com'rs of Bryan County, Okl. v. Brown, 520 U.S. at 397, 407, 117 S.Ct. 1382 (1997).
In Andrews v. City of Philadelphia, 895 F.2d 1469, 1480 (3d Cir. 1990), the Third Circuit distinguished a "policy" from a "custom":
"A government policy or custom can be established in two ways. Policy is made when a "decisionmaker possess[ing] final authority to establish municipal policy with respect to the action" issues an official proclamation, policy, or edict. Pembaur v. City of Cincinnati, 475 U.S. 469, 481, 106 S.Ct. 1292, 1299, 89 L.Ed.2d 452 (1986). A course of conduct is considered to be a "custom" when, though not authorized by law, "such practices of state officials [are] so permanent and well settled" as to virtually constitute law. Monell, 436 U.S. at 690, 98 S.Ct. at 2035 (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-68, 90 S.Ct. 1598, 1613-14, 26 L.Ed.2d 142 (1970)). Accord Anela v. City of Wildwood, 790 F.2d 1063, 1067 (3d Cir.), cert. denied, 479 U.S. 949, 107 S.Ct. 434, 93 L.Ed.2d 384."
Thus, a "custom" can be established by demonstrating a pattern of constitutional violations that the municipality is aware of, but has failed to take any measures to mitigate. Canton, 489 U.S. at 397, 109 S.Ct. 1197. It is not enough, however, to identify the custom, Plaintiff must also establish scienter, or knowledge of the policy maker of the illegal custom. See Simmons v. City of Philadelphia, 947 F.2d 1042, 1064-65 (3d Cir. 1991).
The sufficiency of evidence relating to a policymaker's awareness of a custom was addressed by the Third Circuit in Beck, 89 F.3d 966. In that case, plaintiff supplied evidence of five civilian complaints of excessive force in less than five years as proof that the officer exhibited a pattern of violent and inappropriate behavior. Pursuant to Fed.R.Civ.P. 50(a)(1), the District Court concluded that the evidence did not support a claim that the City had a policy or custom authorizing the use of excessive force and entered judgment in favor of the City, stating "[r]ecitation of the number of complaints filed is not sufficient to prove a policy or custom. [. . . ] I think [the] absen[ce of] any evidence of a less than meaningful investigation or less than meaningful response to complaints of excessive force is fatal." Beck, 89 F.3d at 973. However, the Third Circuit reversed, stating "[o]n the contrary, the plaintiff offered in evidence a series of actual written civilian complaints of similar nature, most of them before and some after the Beck incident, containing specific information pertaining to the use of excessive force and verbal ...