BOLDER

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

__________________________________________

NICOLE BOLDER, :

Plaintiff, :

:

v. : Civil No. 5:23-cv-05138-JMG

:

OFFICER THOMAS BRECKER, :

Defendant. :

_

MEMORANDUM OPINION

GALLAGHER, J. November 5, 2025

I. OVERVIEW

Plaintiff Nicole Bolder raises Section 1983 claims for racial discrimination under 42 U.S.C.

§ 1981 and unlawful seizure, as well as supplemental claims for unlawful detention/false

imprisonment, intentional infliction of emotional distress, and assault against Defendant Officer

Thomas Brecker. Much of the encounter between Plaintiff and Defendant was captured on

Defendant’s body-worn camera, but some genuine fact issues remain. Accordingly, Plaintiff’s

claims for unlawful seizure and false imprisonment, as well as her request for punitive damages,

survive summary judgment, and Defendant is not entitled to the protections of qualified immunity

or the Pennsylvania Political Subdivision Tort Claims Act. However, the Court will grant summary

judgment on Plaintiff’s racial discrimination, intentional infliction of emotional distress, and

assault claims.

II. BACKGROUND

On January 20, 2022, Plaintiff Nicole Bolder was shopping at Walmart in Caernarvon

Township, Pennsylvania. Pl.’s Statement of Disputed Facts at 10 ¶ 1 (ECF No. 48-1). While

loading her car with groceries, she became locked out of her car, locking in her dog, purse, and

cell phone. Id. at 10 ¶ 3 [sic]. After attempting to call for help, she asked for someone to call the

police for assistance. Id. at 11 ¶ 3.

When Defendant Officer Thomas Brecker arrived at approximately 7:32 PM, originally

responding to a 911 hang-up call, he offered to call a towing company to unlock Plaintiff’s car. Id.

at 11 ¶¶ 3-4 (ECF No. 48-1); App’x to Def.’s Mot. for Summ. J., Ex. A, at 0:44-1:10 (ECF No.

47-1); Def.’s Statement of Undisputed Facts at ¶ 6 (ECF No. 47). Plaintiff told Defendant that she

did not “have anything to give, do they bill people?” App’x to Def.’s Mot. for Summ. J., Ex. A, at

1:08-1:11 (ECF No. 47-1). Defendant replied, “yeah.” Id. at 1:12. Plaintiff asked if Defendant

could make the call. Id. at 1:12-14. Defendant called two different towing companies on Plaintiff’s

behalf, requesting “lock-out service.” Id. at 1:45-5:15.

Plaintiff told Defendant that her mother was on her way to pick up Plaintiff and take her to

pick up the spare car key. Def.’s Statement of Undisputed Facts at ¶ 18 (ECF No. 47); Pl.’s

Statement of Disputed Facts at 1 (ECF No. 48-1). While they waited, Defendant received a call

from a towing company, Creative Customs, informing him that a truck with lock-out tools was

available to assist Plaintiff. Def.’s Statement of Undisputed Facts at ¶ 20 (ECF No. 47). Plaintiff

confirmed that she wanted Creative Customs’s assistance. Def.’s Statement of Undisputed Facts

at ¶ 20 (ECF No. 47); Pl.’s Statement of Disputed Facts at 1 (ECF No. 48-1). When Creative

Customs’s tow truck driver, Scott Gullo, arrived, Defendant left the scene. Def.’s Statement of

Undisputed Facts at ¶ 21 (ECF No. 47); Pl.’s Statement of Disputed Facts at 1 (ECF No. 48-1).

Gullo unlocked Plaintiff’s car within about ten minutes and asked Plaintiff how she was

going to pay.1 App’x to Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 21 (ECF No. 48-2). Plaintiff

explained that she did not have money on her, but Defendant told her that Creative Customs would

bill her at a later date. Id. Gullo advised that was incorrect; Creative Customs required payment

immediately. Id. Plaintiff did not have cash, her debit card did not have $100, she did not have a

credit card, and she did not have friends or family to assist. Id. Plaintiff called her insurance

company to see if it would pay for the lock-out service, but it required her to submit a receipt for

reimbursement. Id. Gullo called the owner of Creative Customs, Roy Hamilton, and explained the

situation. Id. Hamilton was willing to let Plaintiff leave and obtain payment the following day, as

long as there was a police report with her information. Id.

Shortly after Defendant returned to the police station, he received a phone call from

Hamilton. Def.’s Response to Pl.’s Statement of Additional Facts at ¶¶ 6-7 (ECF No. 50). Hamilton

advised that the driver completed the lock-out service, but Plaintiff did not have money to pay for

the service. App’x to Def.’s Mot. for Summ. J., Ex. E, at 30 (ECF No. 47-1). Defendant returned

to Walmart around 8:19 PM. Id., Ex. B, at 0:01.

Video from Defendant’s body-worn camera shows Defendant parking his patrol car on the

opposite side of the Walmart parking lot, getting out of his patrol car, and standing with Gullo for

about five seconds.2 Id. at 0:01-12 (ECF No. 47-1); see also App’x to Pl.’s Opp’n to Def.’s Mot.

1 Plaintiff reports that Gullo did not unlock her car before Defendant returned. See App’x

to Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 16 (ECF No. 48-2). However, the footage from

Defendant’s body-worn camera shows Plaintiff sitting in her car upon Defendant’s return to

Walmart. Def.’s Mot. for Summ. J., Ex. B, at 0:12-15 (ECF No. 47-1).

2 Gullo states that Defendant pulled into the parking lot at a high rate of speed, locked up

his brakes, and slid to a stop on the opposite side of the parking lot. App’x to Pl.’s Opp’n to Def.’s

Mot. for Summ. J. at 21 (ECF No. 48-2). The video from Defendant’s body-worn camera does not

for Summ. J. at 21 (ECF No. 48-2). Defendant’s microphone was turned off, but Gullo reports that

he tried to speak with Defendant about gathering Plaintiff’s information, but Defendant ignored

Gullo. App’x to Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 21-22 (ECF No. 48-2). Defendant then

approached Plaintiff, who was sitting in her car. App’x to Def.’s Mot. for Summ. J., Ex. B, at 0:12-

15 (ECF No. 47-1). Approximately 15 seconds into his conversation with Plaintiff, Defendant

turned on the microphone. Id. at 0:15-0:30. During those 15 seconds of video without sound,

Plaintiff does not visibly appear to be upset. See id.

Defendant explained to Gullo that the misunderstanding as to what Plaintiff meant by “bill”

was his fault because he did not hear Plaintiff correctly. Id. at 0:30-52. Defendant then asked,

“what can we do to resolve this?” Id. at 0:52-56. Plaintiff said she did not know what to do. Id. at

0:56-1:00. When Defendant asked if she knows anyone with $100 dollars, she became flustered

and explained that she is by herself. Id. at 1:00-32. Plaintiff told Defendant “I can’t give you

something I don’t have, I don’t know what to do.” Id. at 1:12-18. Defendant asked Plaintiff if she

had a job, to which Plaintiff said yes. Id. at 1:33-36. Defendant asked when she was paid, and

Plaintiff told him every other Friday. Id. at 1:36-45. Defendant told Plaintiff, “I suggest you call

somebody.” Id. at 1:49-51. When Plaintiff said she did not understand and that she was told the

tow truck company would bill her, Defendant said, “You owe me money, I’m going to pay for it

ok, but you owe me money. If you do not pay me, I will arrest you for theft.” Id. at 1:53-2:18. At

this point, Plaintiff began to cry. Id. at 2:22. Plaintiff told Defendant, “You don’t have to talk to

me like that; I’m not a bad person so why are you treating me like I’m a criminal and talking to

me like that; I’m an honest person; you don’t have to talk to me like that, ok, that’s not necessary.”

show Defendant sliding to a stop, and Defendant does not appear to be speeding before stopping

his patrol car. App’x to Def.’s Mot. for Summ. J., Ex. B, at 0:00-03 (ECF No. 47-1).

Id. at 2:18-43. Defendant asks again, “When are you going to give me my money?” Id. at 2:43-46.

Crying, Plaintiff tells Defendant that he does not have to talk to her like that. Id. at 2:46-49.

Defendant’s second encounter with Plaintiff lasted approximately 2 minutes and 45

seconds. See id. at 0:15-2:56. In addition to what Defendant’s body-worn camera captured,

Plaintiff states that Defendant ordered her not to leave the scene.3 App’x to Pl.’s Opp’n to Def.’s

Mot. for Summ. J. at 16 (ECF No. 48-2).

Using a similar tone of voice that he used with Plaintiff, Defendant ordered the tow truck

driver, Scott Gullo, to follow him, so Defendant could give him $100 for the lock-out service.

App’x to Def.’s Mot. for Summ. J., Ex. B, at 2:43-3:06 (ECF No. 47-1). Gullo tried to explain that

he only needed a police report, but Defendant cut him off. App’x to Pl.’s Opp’n to Def.’s Mot. for

Summ. J. at 21 (ECF No. 48-2). Defendant told Gullo, “Just follow me. I don’t want—I don’t want

to talk anymore. Just follow me. I’m going to pay her, I’m going to give you $100, okay.” App’x

to Def.’s Mot. for Summ. J., Ex. B, at 3:00-08 (ECF No. 47-1). Defendant got into his vehicle,

turned around, and sped out of the parking lot. Id. at 3:06-19.

Gullo proceeded to the BB&T Bank at the end of the parking lot. App’x to Pl.’s Opp’n to

Def.’s Mot. for Summ. J. at 21 (ECF No. 48-2). He observed Defendant pull into the “ATM line

facing the wrong direction, head on against 3 vehicles waiting to use the ATM, essentially pinning

them in line.” Id. Defendant exited his patrol car and attempted to withdraw money, but his card

declined. Id. Defendant told Gullo to follow him to Wawa. Id. Defendant left the bank, again at a

high rate of speed. Id. As Defendant approached the traffic light, he activated his emergency lights

3 Plaintiff also recalls Defendant telling her to give him his “fucking money back” and that

“this was bullshit.” App’x to Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 17 (ECF No. 48-2). The

record does not support this contention. See generally App’x to Def.’s Mot. for Summ. J., Ex. B

(ECF No. 47-1).

and ran traffic lights along Route 23. Id. Gullo eventually lost sight of Defendant due to

Defendant’s speed. Id. When Gullo arrived at Wawa, Defendant gave him $100 cash. Id.

Gullo asked Defendant if he had Plaintiff’s information. Id. Defendant ignored Gullo the

first time he asked, so Gullo asked a second time. Id. Defendant yelled, “What, you didn’t get it?”

Id. Defendant returned to his patrol car and sped out of the Wawa parking lot. Id.

Defendant returned to Walmart, where Plaintiff was still parked. App’x to Def.’s Mot. for

Summ. J., Ex. C, at 0:00-0:45 (ECF No. 47-1). Once again, Defendant parked on the opposite side

of the parking lot.4 Id. at 0:45. Plaintiff was visibly shaken and crying, and Defendant repeatedly

apologized to her. Id. at 0:45-2:53. Defendant explained that he misunderstood what Plaintiff

meant by “bill,” and that the misunderstanding was his fault. Id. at 0:58-1:10. He also apologized

for “all the other stuff, like arresting you,” and that would not happen. Id. at 1:10-15. Defendant

explained that he paid Creative Customs, so Plaintiff does not have to worry about paying him. Id.

at 1:15-21. Plaintiff had cash in her hand and repeatedly attempted to pay Defendant.5 Id. at 1:15-

31. Defendant refused her money and explained that he would be reimbursed from the township.

Id. at 1:30-2:35. Defendant apologized again, told her to have a good night, returned to his patrol

car, and left the Walmart parking lot. Id. at 2:45-52.

4 Gullo reported that Defendant “pinned” Plaintiff in her parking spot. App’x to Pl.’s Opp’n

to Def.’s Mot. for Summ. J. at 21-22 (ECF No. 48-2). Defendant’s body-worn camera video shows

that is clearly incorrect. Def.’s Mot. for Summ. J., Ex. C, at 0:45 (ECF No. 47-1).

5 Plaintiff reports that Gullo unlocked the car after Defendant agreed to pay, and once she

had access to her car, she withdrew money from the ATM. See App’x to Pl.’s Opp’n to Def.’s Mot.

for Summ. J. at 17 (ECF No. 48-2). That seemingly contradicts Defendant’s body-worn camera

video, showing Plaintiff sitting in her car and with her purse, stating that she did not have $100

and could not borrow $100 from anyone. See App’x to Def.’s Mot. for Summ. J., Ex. B, at 0:15-

2:56 (ECF No. 47-1). If Plaintiff had the means to withdraw $100 from the ATM machine this

whole time, it is unclear why Plaintiff did not sooner withdraw the $100 from the ATM machine

to pay Gullo before Defendant was called to return to the scene.

When Gullo returned to the Walmart parking lot, he saw Defendant having an “animated

conversation” with Plaintiff. App’x to Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 22 (ECF No. 48-

2). After Defendant left, Gullo drove over to Plaintiff, parked next to her, and tapped on her

window. Id. Gullo observed Plaintiff having what he “would consider a panic

attack/hyperventilating, uncontrolled crying and shaking.” Id. Gullo attempted to calm her down

and asked if she needed EMS, which she denied. Id. After she calmed down, Gullo asked what

Defendant told her. Id. Plaintiff began crying and hyperventilating again. Id.

After she calmed down a second time, Gullo gave her the Caernarvon Township Police

Department phone number, Chief Paul Stolz’s name, Gullo’s name, and Gullo’s personal phone

number. Id. Gullo suggested that she call the police department the next day and explain what

happened because Gullo thought Defendant was “out of control and unwarranted.” Id. Plaintiff

was scared of Defendant retaliating against her because she drives those roads every day. Id. She

also explained that Defendant apologized, and she did not need to repay him. Id. Gullo reiterated

several times that she needed to report the incident, and that he would be doing the same. Id. Gullo

followed through on that and wrote a letter to Chief Stoltz. See id. at 21-22.

Chief Paul Stolz, the Chief of Caernarvon Township Police Department, concluded that

Defendant’s “threats of arrest and imprisonment were unjustified and exceeded [his] scope of

authority.” See App’x to Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 28 (ECF No. 48-2). Defendant

was found to have “acted irrationally,” “displayed a great amount of anger and poor conduct

towards [Plaintiff] and the responding tow truck operator,” “operated a patrol car vehicle in an

unsafe manner, failed to obey the Township’s policy on Towing and failed to properly document

the incident . . . pursuant to Departmental policies.” Id. Chief Stolz issued the following statement

of charges: (1) “conduct unbecoming a police officer and neglect of duty”; (2) failing to “be

responsible for the efficient performance of his duties in conformity with the policies and

procedures of the Department”; (3) failing to “conduct himself in accordance with high ethical

standards, both on and off duty”; (4) failing to “make reports in conformity with procedure and

completeness”; (5) failing to “ensure the civil treatment and observance of the rights of all people

coming into the scope of his authority”; (6) failing to “use the vehicle assigned to him in the most

safe and economical manner, avoiding hazardous or careless operation”; and (7) “violat[ing] the

Police Department’s Towing and Abandoned Vehicle Policy.” Id. at 28-29. The Board of

Supervisors imposed a three-day suspension. Id. at 32. Defendant ultimately did not challenge the

suspension due to potentially facing greater disciplinary action. Id. at 42.

Plaintiff brought this action against Defendant, alleging “deprivation of rights in violation

of federal law” and supplemental claims for “unlawful detention/false imprisonment,” intentional

infliction of emotion distress, and assault.6 See generally Second Am. Compl. (“SAC”) (ECF No.

26). She also seeks punitive damages for each of her claims. See id. Defendant raised several

affirmative defenses. See Answer to SAC at 9-12. Discovery is now closed. Defendant filed a

motion for summary judgment on all Plaintiff’s claims, as well as Defendant’s affirmative defenses

of qualified immunity and immunity under the Pennsylvania Political Subdivision Tort Claims

Act. 42 Pa. C.S. § 8541 et seq. See generally Br. in Supp. of Def.’s Mot. for Summ. J. (ECF No.

46-1).

6 Plaintiff originally sued Defendant, Caernarvon Township, and Caernarvon Township

Police Department. See generally Compl. (ECF No. 1). In her First Amended Complaint, Plaintiff

dropped Caernarvon Township Police Department as a defendant. See generally First Am. Compl.

(ECF No. 14). Subsequently, the Court granted Caernarvon Township’s Motion to Dismiss and

dismissed it from this action. See Order (ECF No. 38).

III. LEGAL STANDARD

Federal Rule of Civil Procedure Rule 56(c) provides that the district court must “grant

summary judgment if there is no genuine issue as to any material fact and if the moving party is

entitled to judgment as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Essentially, the Court must analyze “whether the evidence presents a sufficient disagreement to

require submission to a jury or whether it is so one-sided that one party must prevail as a matter of

law.” Id. at 251-52. A genuine issue of fact exists where “the evidence is such that a reasonable

jury could return a verdict for the nonmoving party.” Id. at 248. “A fact is material if it ‘might

affect the outcome of the suit under the governing law.’” Physicians Healthsource, Inc. v.

Cephalon, Inc., 954 F.3d 615, 618 (3d Cir. 2020) (quoting Anderson, 477 U.S. at 248). At this

stage of litigation, all facts presented are viewed in the light most favorable to the nonmoving

party. Daniels v. City of Pittsburgh, No. 22-1790, 2023 WL 2707178, at *2 (3d Cir. Mar. 30, 2023).

To survive a properly supported motion for summary judgment, the nonmoving party,

Plaintiff in this case, must present affirmative evidence of specific facts to demonstrate a genuine

issue of material fact. Anderson, 477 U.S at 256-57; Berckeley Inv. Grp., Ltd. v. Colkitt, 455 F.3d

195, 201 (3d Cir. 2006) (citing Pa. Prot. & Advoc., Inc. v. Pa. Dep’t of Pub. Welfare, 402 F.3d

374, 379 (3d Cir.2005)) (“Although the non-moving party receives 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.”).

“[S]ummary judgment is essentially ‘put up or shut up’ time for the non-moving party: the non-

moving party must rebut the motion with facts in the record and cannot rest solely on assertions

made in the pleadings, legal memoranda, or oral argument.” Colkitt, 455 F.3d at 201; FED. R. CIV.

P. 56(c)(1)(A) (requiring any party asserting a fact to “cit[e] to particular parts of materials in the

record”). Statements of Disputed Facts are not evidence, so a “district court may not rely solely

on” them to justify a finding that a dispute of material fact exists. Doeblers’ Pa. Hybrids, Inc. v.

Doebler, 442 F.3d 812, 820 n.8 (3d Cir. 2006), as amended (May 5, 2006) (internal citation

omitted).

Ordinarily, the nonmovant’s evidence “is to be believed, and all justifiable inferences are

to be drawn in his favor.” Washington v. Ondrejka, 822 F. App’x 104, 106 (3d Cir. 2020) (per

curiam) (quoting Anderson, 477 U.S. at 255). But the Court need not accept the nonmovant’s

version of the facts where a video recording of the incident “blatantly contradicts the non-movant’s

version so that no reasonable jury could believe it.” Id. (quoting Scott v. Harris, 550 U.S. 372, 380

(2007)) (affirming summary judgment where videotape of defendants extracting plaintiff from his

cell refuted plaintiff’s claim that “defendants’ use of force was applied ‘maliciously and

sadistically to cause harm’”). The Court also should not consider evidence that is inadmissible at

trial. See Bristol v. Settle, 457 F. App’x 202, 204 (3d Cir. 2012) (citing Pamintuan v. Nanticoke

Mem’l Hosp., 192 F.3d 378, 387 n.13 (3d Cir.1999) (observing it is improper to consider evidence

that is inadmissible at trial on summary judgment).

IV. ANALYSIS

a. Section 1981 Claim for Racial Discrimination

Section 1981 provides that all persons within the United States “have the same right in

every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to

the full and equal benefit of all laws and proceedings for the security of persons and property as is

enjoyed by white citizens,” as well as “be subject to like punishment, pains, penalties, taxes,

licenses, and exactions of every kind, and to no other.” 42 U.S.C. § 1981(a). However, Section

1981 “does not support a cause of action for every instance of racial discrimination or hostility.”

Pinckney v. Pep Boys - Manny Moe & Jack, No. 19-3775, 2021 WL 3578983, at *2 (3d Cir. Aug.

13, 2021) (citing Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 479 (2006); Hammond v.

Kmart Corp., 733 F.3d 360, 364 (1st Cir. 2013)). To state a claim under Section 1981, the plaintiff

must “prove that, but for race, [she] would not have suffered the loss of a legally protected right.”

Comcast Corp. v. Nat’l Ass’n of Af. Am.-Owned Media, 589 U.S. 327, 341 (2020). That requires

showing that: (1) the plaintiff “belongs to a racial minority; (2) an intent to discriminate on the

basis of race by the defendant; and (3) discrimination concerning one or more of the activities

enumerated in § 1981.” Summers v. Child.’s Hosp. of Phila., No. 21-3479, 2021 WL 5789057, at

*2 (E.D. Pa. Dec. 7, 2021) (quoting Pryor v. Nat’l Collegiate Athletic Ass’n, 288 F.3d 548, 569

(3d Cir. 2002)).

The best the Court can glean from the Complaint and summary judgment record is that

Plaintiff brings her Section 1981 racial discrimination action under the “full and equal benefit”

clause of 42 U.S.C. § 1981.7 See Pl.’s Br. in Opp’n to Def.’s Mot. For Summ. J., at 12-13 (ECF

No. 48). Though most often invoked in contractual matters, Section 1981 protects a limited range

of civil rights, which includes guaranteeing the “right to equal benefit of the laws and to like

punishment, irrespective of race.” See Travillion v. Harry, No. 3:22-CV-01196, 2024 WL

1285542, at *7 (M.D. Pa. Mar. 26, 2024), aff’d sub nom. Travillion v. Wetzel, No. 24-1763, 2025

7 In her Complaint, Plaintiff brought a count for “deprivation of rights in violation of federal

law,” and asserted that “[f]ederal law prohibits discrimination on the ground of race in connection

with a person’s rights under the law. See 42 U.S.C.S. § 1981.” See SAC at ¶ 47. She alleged that

Defendant deprived Plaintiff “of her rights under the Constitution and law of the United States, in

violation of 42 U.S.C. Section 1983, including violating her 4th amendment rights and violating

her Civil Rights under both the US Constitution and the Pa. Constitution.” Id. at ¶ 50. In Plaintiff’s

opposition to Defendant’s Motion for Summary Judgment, she references the “full and equal

benefit” clause, but Plaintiff still does not expressly state this is the right she is asserting was

violated under Section 1981. See Pl.’s Br. in Opp’n to Def.’s Mot. to Dismiss, at 13-19 (ECF No.

48).

WL 971669 (3d Cir. Apr. 1, 2025). “Racially motivated misuse of governmental power falls within

the ambit of its ‘equal benefit’ and ‘like punishment’ clauses.” Williams v. Pennridge Sch. Dist.,

No. CV 15-4163, 2016 WL 6432906, at *9 (E.D. Pa. Oct. 31, 2016) (quoting Hall v. Pa. State

Police, 570 F.2d 86, 91 (3d Cir. 1978)).

But Section 1981 does not provide the remedy for such violations. McGovern v. City of

Phila., 554 F.3d 114, 116, 121-21 (3d Cir. 2009). While Section 1981 has been interpreted to

permit private suits for remedies, that is not the case when the defendant is a state actor. Comcast

Corp., 589 U.S. at 335 (discussing Supreme Court inferring private cause of action under Section

1981); McGovern, 554 F.3d at 116, 121-21. Section 1981 does not itself provide an express or

implied cause of action against state actors. McGovern, 554 F.3d at 116, 121-21 (citing Jett v.

Dallas Indep. Sch. Dist., 491 U.S. 701, 731 (1989)). Rather, “the express cause of action for

damages created by [42 U.S.C.] § 1983 constitutes the exclusive federal remedy for violation of

the rights guaranteed in § 1981 by state governmental units.” Id. at 121 (emphasis added) (citing

Jett, 491 U.S. at 733); see, e.g., Travillion, 2024 WL 1285542, at *7 (plaintiff raising Section 1983

claims in violation of Section 1981).

Neither party addressed this issue. Accordingly, the Court ordered supplemental briefing,

instructing the parties to address whether the holding in McGovern precludes Plaintiff from

recovering under Section 1981. See Order, Sept. 11, 2025 (ECF No. 54). Defendant argues that

Plaintiff is precluded from recovery under Section 1981 because Section 1983 is the exclusive

remedy, and Plaintiff never stated a racial discrimination claim under Section 1983. See Def.’s

Suppl. Br., at 4 (ECF No. 55). Despite Plaintiff arguing in her opposition that the record supports

Plaintiff’s Section 1981 claim, see Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J. at 11-19 (ECF

No. 48), she reversed course in her supplemental brief. See Pl.’s Suppl. Br., at 2 (ECF No. 56). In

her supplemental brief, Plaintiff argues that she did assert her Section 1981 claim under Section

1983. See id. Plaintiff maintains that Paragraph 50 of her Second Amended Complaint properly

asserts her claim under Section 1983. See id. at 5.

Plaintiff cannot maintain this action under Section 1981. Defendant is a state actor, and

McGovern makes clear that Section 1981 does not provide an express or implied cause of action

against state actors. McGovern, 554 F.3d at 116, 121-21 (citing Jett, 491 U.S. at 731); see also

Archie v. City of Phila., No. CV 22-2915, 2025 WL 220024, at *4 (E.D. Pa. Jan. 16, 2025)

(granting summary judgment for defendant because Section 1981 does not provide a private right

of action against state actors); Odi v. Alexander, No. CV 15-4903, 2017 WL 914818, at *9 (E.D.

Pa. Mar. 7, 2017) (“[T]he exclusive means of enforcing rights under Section 1981 is through

Section 1983.”). Defendant’s motion for summary judgment on Plaintiff’s Section 1981 claim,

insofar as Plaintiff brought her claim under Section 1981, is GRANTED.

However, the Court will consider the merits of Plaintiff’s claim under Section 1983. While

Plaintiff did not expressly assert her Section 1981 claim under Section 1983 in her Complaint, she

did allege that Defendant “deprived Ms. Bolder of her rights under the Constitution and law of the

United States, in violation of 42 U.S.C. Section 1983, including . . . violating her Civil Rights

under . . . the US Constitution.” See SAC at ¶ 50 (ECF No. 26).

b. Section 1983 Claims

“Section 1983 provides a civil remedy for the ‘deprivation of any rights, privileges, or

immunities secured by the Constitution and laws.’” Halsey v. Pfeiffer, 750 F.3d 273, 290 (3d Cir.

2014) (quoting 42 U.S.C. § 1983). It requires the plaintiff to show that a “person has deprived him

of a federal right,” and that person “acted under color of state or territorial law.” Id. Plaintiff alleges

that Defendant violated Section 1983 by: (1) racially discriminating against her, and (2) unlawful

seizure. See Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J. at 11-21 (ECF No. 48). For the reasons

that follow, the Court GRANTS summary judgment on Plaintiff’s racial discrimination claim and

DENIES summary judgment on Plaintiff’s unlawful seizure claim.

1. Section 1981 Claim Brought Under Section 1983

As discussed above, Plaintiff must demonstrate that she is a racial minority, Defendant

intended to discriminate against her on the basis of race, and the discrimination concerns one or

more of the enumerated activities in Section 1981 to prevail on her racial discrimination claim.

See Summers, 2021 WL 5789057, at *2 (quoting Pryor, 288 F.3d at 569). Only intentional

discrimination will give rise to a Section 1981 claim. Pryor, 288 F.3d at 562; see also Gen. Bldg.

Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 391, (1982) (explaining only purposeful

discrimination will violate Section 1981). That requires the Plaintiff to “prove that, but for race,

[she] would not have suffered the loss of a legally protected right.” Comcast Corp., 589 U.S. at

341, (2020); see, e.g., Gross v. R.T. Reynolds, Inc., 487 F. App’x 711, 716-17 (3d Cir. 2012)

(explaining plaintiff failed to explain how defendant “treated non-minority contractors any

differently than it treated him, or how delays in the construction project were motivated by or

related to [plaintiff’s] race”); Travillion, 2024 WL 1285542, at *8 (“[Plaintiff] has failed to adduce

any evidence that similarly situated white inmates have been treated differently, nor has he

adduced any other evidence that defendant . . . was motivated by race-based animus.”).

A police officer’s improper behavior can deprive someone of “equal benefit” of the law,

but the motivating factor of the alleged discrimination must be racial animus. Wright v. Reed, No.

5:20-CV-02664, 2021 WL 912521, at *2 (E.D. Pa. Mar. 10, 2021) (first citing Crane v.

Cumberland Cnty., Pa., No. CIV.A. 1:CV-99-1798, 2000 WL 34567277, at *11 (M.D. Pa. June

16, 2000), aff’d sub nom. Crane v. Cumberland Cnty., Pa, 64 F. App’x 838 (3d Cir. 2003); and

then citing Grier by Grier v. Galinac, 740 F. Supp. 338, 342 (M.D. Pa. 1990)). Race by itself is

not enough to create an inference that one acted with discriminatory intent. Spencer v.

Bloomingdale’s, No. CV 17-3775, 2018 WL 5996640, at *5 (E.D. Pa. Nov. 15, 2018) (finding

“race alone cannot give rise to an inference that [defendant] acted with discriminatory intent” at

the summary judgment stage).

Defendant focuses on the second element. See Br. in Supp. of Def.’s Mot. for Summ. J., at

8 (ECF No. 46-1). He argues that Plaintiff has not shown any evidence of purposeful

discriminatory intent. id. Defendant relies on the fact that he “never used any racial slur or foul

language,” Defendant believed he had a basis to arrest Plaintiff if she did not pay him back for

theft of service, and Defendant acted in a similar manner towards the tow driver, a white man. Id.

In response, Plaintiff argues that Defendant made demeaning comments that were

stereotypically based on her race. Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J. at 15 (ECF No.

48). In support of that argument, she notes that Defendant returned to Walmart at a high rate of

speed, slid to a stop behind Plaintiff’s car, demanded that Plaintiff pay the tow driver,

“aggressively” questioned her financial situation and employment status, “demanded an

explanation” of how she supported herself, asked if there was anyone she could borrow $100 from,

cursed at Plaintiff and “continued to put her down for about 5 minutes,” and pointed at Plaintiff

while yelling. Id. at 14. She also states that Defendant instructed that she could not leave. Id.

Plaintiff also points to Defendant’s conduct with others. She states that Defendant “tore off

at high speed in his police car with his motor screaming and floored it through multiple parking

lot intersections to the Bank,” pulled into the ATM line from the wrong direction, pinned people

in line who were waiting to use the ATM, and used his emergency lights to drive through

intersections. See id. at 15. Plaintiff argues that this conduct violated his department’s procedures,

and he received a three-day suspension without pay. Id. She portrays these violations as:

1. Conduct Unbecoming an Officer - harassing Ms. Bolder,

unlawfully directing her not to leave the Walmart lot, and

threatening to locate and arrest her for theft.

2. Neglect of Duty - failing to fulfill his responsibilities as a police

officer by refusing to assist a citizen in distress.

3. Failure to Adhere to High Ethical Standards - engaging in

racially discriminatory conduct toward Ms. Bolder because she

is Black.

4. Failure to Ensure Civil Treatment and Protect Rights -

violating the rights of a person under his authority through

harassment and racial intimidation.

5. Failure to File Truthful and Complete Reports - omitting

material facts and failing to produce a truthful and complete

incident report.

6. Improper and Unsafe Use of a Patrol Vehicle - operating his

police vehicle at a hazardous speed, running intersections,

unlawfully passing vehicles with emergency lights activated,

and using his vehicle to pin Ms. Bolder and ATM users in place.

7. Careless Operation of a Patrol Vehicle - creating unnecessary

danger to pedestrians and motorists.

Id. at 7 (citing App’x to Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 28-29 (ECF No. 48-2)).

After weeding out Plaintiff’s evidence that is unsupported by the record8 or that the Court

8 Some of Plaintiff’s “facts” are not born out by the record, and in several instances,

Plaintiff’s counsel exceeds the boundaries of inferential license common in the name of advocacy.

For instance, on the critical issue of whether there was a discriminatory motive behind Defendant’s

rude behavior, Plaintiff claims the police chief disciplined Defendant for “racial discrimination”

and “racial intimidation.” Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J. at 7 (ECF No. 48).

Plaintiff’s own citation to the record belies this critical contention. See App’x to Pl.’s Opp’n to

Def.’s Mot. for Summ. J. at 28-29 (ECF No. 48-2). Further, the videos from Defendant’s body-

worn camera contradict the repeated claim that Defendant’s patrol car “pinned” Plaintiff into her

parking spot. See App’x to Def.’s Mot. for Summ. J., Ex. B, at 0:01-12 (ECF No. 47-1); id., Ex.

C, at 0:45. Similarly, the second encounter between Plaintiff and Defendant did not exceed three

minutes, let alone the five minutes claimed. See id., Ex. B, at 0:15-2:56 (ECF No. 47-1). And

during the one-to-two-minute period of time when Defendant was yelling at Plaintiff—depending

on what the factfinder would consider to be “yelling”—he never “cussed” at her. See id., Ex. B, at

previously ruled is inadmissible at trial,9 Plaintiff does not put forth enough evidence to survive

summary judgment. Plaintiff had to prove discriminatory intent. Not only did Plaintiff fail to

demonstrate that Defendant treated her differently on the basis of race, her own evidence points to

the opposite conclusion. Plaintiff was not the only person on the receiving end of Defendant’s

irrational behavior. Seconds after Defendant yelled at Plaintiff, he similarly yelled at the tow truck

driver, Gullo, and ignored Gullo’s attempts to speak with him about Plaintiff not needing to pay

immediately. App’x to Pl.’s Opp’n to Def.’s Mot. for Summ. J. at 21 (ECF No. 48-2). Defendant

then directed this anger towards bank patrons by pulling into the ATM line from the wrong

direction—“pinning” three vehicles in line. Id. After leaving the bank, Defendant sped down Route

23 through traffic lights and with his emergency lights on, all to withdraw $100 from the ATM

and pay a tow truck driver. Id.

Moreover, given the absence of any overt evidence of racial animus, Plaintiff relies most

heavily on Defendant’s allegedly stereotypical language in inquiring whether Plaintiff could secure

$100. However, this line of questioning must be considered in the context in which it was asked.

Defendant asked Plaintiff if she had a job or knew anyone who could give her $100 to pay Gullo

or, failing that, to pay back Defendant for fronting the money on Plaintiff’s behalf. See App’x to

Def.’s Mot. for Summ. J., Ex. B, at 0:52-2:18 (ECF No. 47-1). Indeed, these inquiries were nearly

identical to those asked by Gullo when Plaintiff first told him she could not immediately pay the

1:00-3:00. Some of these discrepancies are more material than others, but they are hardly indicative

of a confident argument.

9 Plaintiff relies on two of her experts to establish racial discrimination, Darrin Porcher,

Ph.D. and Pastor John Peyton, Ph.D. However, the Court has already ruled that their testimony is

inadmissible and explained its reasoning for those rulings at length. See Mem. Op., at 7-11, 18-22,

Oct. 31, 2025 (ECF No. 77). Because the Court cannot consider inadmissible evidence on

summary judgment, the Court does not address these experts’ opinions. See Bristol, 457 F. App’x

at 204 (citing Pamintuan, 192 F.3d at 387 n.13).

$100 service fee. See App’x to Pl.’s Opp’n to Def.’s Mot. for Summ. J., at 21 (ECF No. 48-2). As

with Gullo’s inquiries, the record supports no more of Defendant’s motivation than to arrange

payment for the unlocking of Plaintiff’s vehicle, particularly when considering his unprofessional

behavior was directed towards all he encountered during this incident.

Plaintiff’s Section 1981 claim, brought under Section 1983, is based on the formula that a

rude officer plus a Black civilian equals racial discrimination. More is needed to prove a racially

discriminatory intent underlying the officer’s boorish behavior. The Plaintiff has not provided it.

Defendant’s motion for summary judgment as to the Section 1981 claim brought under Section

1983 is GRANTED.

2. Unlawful Seizure Claim

Plaintiff asserts that Defendant’s conduct on January 20, 2022, constitutes an unlawful

seizure. See Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J., at 20 (ECF No. 48). The Fourth

Amendment of the United States Constitution guards “[t]he right of the people to be secure in their

persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. CONST.

amend. IV. A seizure occurs “when [an] officer, by means of physical force or show of authority,

has in some way restrained the liberty of a citizen.” United States v. Silveus, 542 F.3d 993, 999

(3d Cir. 2008) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16 (1968)) (alteration in original).

A person has been “seized” when, “in view of all of the circumstances surrounding the

incident, a reasonable person would have believed that he was not free to leave.” Michigan v.

Chesternut, 486 U.S. 567, 573 (1988). This analysis involves considering “the threatening

presence of several officers, the display of a weapon by an officer, some physical touching of the

person of the citizen, or the use of language or tone of voice indicating that compliance with the

officer’s request might be compelled.” Covington v. Plymouth Twp. Police Dep’t, 779 F. Supp. 3d

509, 524 (E.D. Pa. 2025) (quoting James v. City of Wilkes-Barre, 700 F.3d 675, 680 (3d Cir.

2012)). “Moreover, what constitutes a restraint on liberty prompting a person to conclude that he

is not free to ‘leave’ will vary, not only with the particular police conduct at issue, but also with

the setting in which the conduct occurs.” Chesternut, 486 U.S. at 573.

When the officer did not use force, like Defendant here, then “submission to the assertion

of authority” is necessary. United States v. Richardson, 504 F. App’x 176, 181 (3d Cir. 2012)

(quoting California v. Hodari D., 499 U.S. 621, 626 (1991)) (emphasis in original). There cannot

be a seizure without “actual submission.” Id. (quoting Brendlin v. California, 551 U.S. 249, 254

(2007)). “Submission requires ‘something more than a momentary pause or mere inaction.’”

United States v. Richardson, 504 F. App’x 176, 181 (3d Cir. 2012) (quoting United States v.

Waterman, 569 F.3d 144, 146 (3d Cir. 2009)).

Defendant argues there was no seizure at all because he was the only officer present for

this incident, he never drew his firearm, no one alleged that Defendant put his hand on his firearm,

he never touched Plaintiff, he never took Plaintiff’s keys or driver’s license, and he never

handcuffed Plaintiff. See Br. in Supp. of Def.’s Mot. for Summ. J., at 9 (ECF No. 46-1). However,

the video from Defendant’s body-worn camera clearly shows Defendant raising his voice at

Plaintiff, shaking his finger at her, and threatening her with arrest if she does not pay him back.

There is also a genuine dispute as to whether Defendant told her not to leave. And while Plaintiff

did leave her car to use the ATM machine in Walmart, that does not necessarily negate “actual

submission.” Plaintiff did not travel far or leave Walmart, and withdrawing $100 from the ATM

machine fell within Defendant’s directive to pay him back or get arrested.

While perhaps a close call, Plaintiff overcomes the hurdle of summary judgment. Viewing

these facts in the light most favorable to Plaintiff, it is possible that the jury could find that

Defendant’s conduct constitutes an unlawful seizure. Accordingly, Defendant’s motion for

summary judgment as to unlawful seizure is DENIED.

c. Supplemental Claim for Unlawful Detention/False Imprisonment

In addition to Plaintiff’s Section 1983 unlawful seizure claim, Plaintiff brings a similar

state law claim for false imprisonment. To prevail on her false imprisonment claim, Plaintiff must

establish that: (1) she was detained; and (2) the detention was unlawful. Gwynn v. City of Phila.,

719 F.3d 295, 304 (3d Cir. 2013) (citing Renk v. City of Pittsburgh, 641 A.2d 289, 293 (Pa. 1994)).

That requires showing Plaintiff’s unlawful detention was “brought about by ‘(1) acts intending to

confine [Plaintiff] within boundaries fixed by another (2) which directly or indirectly result in such

confinement (3) of which the plaintiff is conscious or by which the plaintiff is harmed.’” Torres

Crespo v. Mars Wrigley Confectionery US, LLC, No. 5:23-CV-00744-JMG, 2023 WL 3513309,

at *3 (E.D. Pa. May 17, 2023) (quoting Regan v. Upper Darby Twp., 363 F. App’x 917, 922 (3d

Cir. 2010)).

Defendant argues that Plaintiff’s false imprisonment claim fails because he never told

Plaintiff that she could not leave, he never placed her in his vehicle, and he left Plaintiff with her

car keys when he went to the bank. See Br. in Supp. of Def.’s Mot. for Summ. J., at 13 (ECF No.

46-1). Defendant also argues that Plaintiff did not believe she was falsely imprisoned because she

left her car to withdraw money from the ATM. Id. However, Plaintiff asserts that Defendant did

order her not to leave the parking lot and threatened her with arrest if she did leave. See Pl.’s Br.

in Opp’n to Def.’s Mot. for Summ. J., at 24 (ECF No. 48). Plaintiff also maintains that she acted

in accordance with those instructions because she withdrew money from Walmart’s ATM machine

and did not leave Walmart. Id.

Again, there is a genuine dispute as to whether Defendant ordered Plaintiff not to leave the

parking lot, and the video is not dispositive. Viewing the facts in the light most favorable to

Plaintiff, Defendant ordered her not to leave, and she complied with those directions. While she

did go back into the store to withdraw money, she traveled a very short distance and immediately

returned to her car. Plaintiff’s false imprisonment claim survives summary judgment. Defendant’s

motion is DENIED.

d. Supplemental Claim for Intentional Infliction of Emotional Distress

Plaintiff raises a supplemental claim against Defendants for intentional infliction of

emotional distress (“IIED”). Establishing a claim of IIED under Pennsylvania law is a high bar.

For Plaintiff to succeed, she must prove that: (1) Defendant’s conduct was “extreme and

outrageous”; (2) Defendant’s conduct was “intentional or reckless”; (3) Defendant’s conduct

“cause[d] emotional distress”; and (4) Plaintiff’s distress was severe. Smith v. RB Distrib., Inc.,

515 F. Supp. 3d 311, 315 (E.D. Pa. 2021) (quoting Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super.

Ct. 1997), aff’d 720 A.2d 745 (Pa. 1998)). Plaintiff must also “suffer some type of resulting

physical harm due to the defendant’s outrageous conduct.” Reedy v. Evanson, 615 F.3d 197, 231

(3d Cir. 2010) (quoting Swisher v. Pitz, 868 A.2d 1228, 1230 (Pa. Super. Ct. 2005)); Greiser v.

Drinkard, 516 F. Supp. 3d 430, 439 (E.D. Pa. 2021). That includes “physical manifestations of

emotional suffering, i.e. depression, nightmares, stress, and anxiety” that are ongoing and require

treatment. Love v. Cramer, 606 A.2d 1175, 1179 (Pa. Super. Ct. 1992); Brown v. Am. Airlines,

Inc., 723 F. Supp. 3d 411, 423 (E.D. Pa. 2024).

At the outset, the Court must determine as a matter of law whether a reasonable jury could

find Defendant’s conduct “extreme and outrageous.” See LiCausi v. Allentown Sch. Dist., No.

5:21-CV-00957-JDW, 2023 WL 4471686, at *6 (E.D. Pa. July 11, 2023) (quoting Swisher, 868

A.2d at 1231) (explaining courts must “determine in the first instance whether the defendant’s

conduct may reasonably be regarded as so extreme and outrageous to permit recovery”); Zucal v.

Cnty. of Lehigh, 760 F. Supp. 3d 290, 305 (E.D. Pa. 2024) (“Conclusory allegations of harassment

and discrimination in the workplace that are not continuing and malicious are insufficient.”); Chuy

v. Phila. Eagles Football Club, 595 F.2d 1265, 1274 (holding physician informing press that a

person was suffering from a potentially fatal disease despite knowing he was not could be “extreme

and outrageous”). The defendant’s “conduct must be ‘so outrageous in character, so extreme in

degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in civilized society.’” LiCausi, 2023 WL 4471686, at *6 (quoting Swisher, 868 A.2d at

1230). “If the plaintiff has satisfied this threshold evidentiary requirement, the jury must find the

facts and make its own characterization.” Chuy, 595 F.2d at 1274.

“Courts are cautious to declare conduct outrageous so as to permit recovery.” Stoltz v. Cnty.

of Lancaster, No. 08-CV-5622, 2011 WL 815709, at *17 (E.D. Pa. Mar. 7, 2011) (quoting Project

Mgmt. Inst., Inc. v. Ireland, 2000 WL 375266, at *6 (E.D. Pa. Apr.11, 2000)) (citation modified).

It is reserved for “only the most egregious conduct,” such as killing someone in a car accident and

burying the body, “intentionally fabricat[ing] records to suggest that plaintiff had killed a third

party which led to plaintiff being indicted for homicide,” and informing the press that the plaintiff

had a fatal disease while knowing that was false. Hoy v. Angelone, 720 A.2d 745, 754 (Pa. 1998)

(collecting cases). It is not enough for the defendant to have “acted with intent which is tortious or

even criminal, or that he has intended to inflict emotional distress, or even that his conduct has

been characterized by ‘malice,’ or a degree of aggravation that would entitle the plaintiff to

punitive damages for another tort.” Id. (first quoting RESTATEMENT (2D) OF TORTS § 46, comment

d; and then citing Daughen v. Fox, 539 A.2d 858, 861 (Pa. Super. Ct. 1988). Nor are “mere insults,

indignities, threats, annoyances, petty oppressions, or other trivialities” sufficient. Mehdizadeh v.

Starbucks Corp., No. CV 24-3339, 2024 WL 4803735, at *3 (E.D. Pa. Nov. 15, 2024) (quoting

Kazatsky v. King David Mem’l Park, Inc., 527 A.2d 988, 991 (Pa. 1987)).

Defendant argues that him being “rude” to Plaintiff while asking about her employment

status and ability to pay the towing company fell below the “extreme and outrageous” requirement.

See Br. in Supp. of Def.’s Mot. for Summ. J., at 14 (ECF No. 46-1). Defendant also argues there

is no evidence that his conduct was intentional or reckless, and there is no evidence that he caused

Plaintiff “severe” emotional distress. See id. In response, Plaintiff argues that Defendant’s conduct

was “outrageous” because he threatened to arrest her, yelled at her, “demeaned” her by questioning

her financial and employment status, and continued to intimidate her despite Plaintiff’s pleas to

stop. See Pl.’s Br. in Opp’n to Def.’s Mot. for Summ. J., at 25-26 (ECF No. 48). She further argues

that Defendant’s conduct had an “added element of racial intimidation.” See id. at 26 (ECF No.

48). Plaintiff also notes that the evidence shows suffered severe emotional distress: she is triggered

by people in uniform, she suffers from repeated nightmares, and she struggled with substance

abuse. See id.

Defendant’s behavior was unacceptable, but it does not rise to the level of “outrageous”

necessary for an IIED claim. Even assuming that Defendant acted in a racially discriminatory

manner, racial discrimination by itself does not satisfy the “extreme and outrageous” standard.

Brown, 723 F. Supp. 3d at 423-24 (dismissing IIED claim where defendant removed plaintiffs

from their flight and rebooked their flights for the next day without offering overnight

accommodations due to defendant’s alleged discriminatory motive); Coney v. Pepsi Cola Bottling

Co., No. CIV. A. 97-2419, 1997 WL 299434, at *1 (E.D. Pa. May 29, 1997) (“[T]he cases in our

district have consistently held that highly provocative racial slurs and other discriminatory

incidents do not amount to actionable outrageous conduct.” (collecting cases)). And while Courts

have allowed IIED cases to proceed where the officers physically injured the plaintiff or “officer’s

conduct was otherwise exceptionally reprehensible,” see Gahagan v. City of Phila., No. CV 21-

2523, 2022 WL 16745098, at *9 (E.D. Pa. Nov. 7, 2022), the officer’s behavior must still “sink to

the level that can properly be termed ‘atrocious and utterly intolerable in a civilized society.’”

Mastromatteo v. Simock, 866 F. Supp. 853, 859 (E.D. Pa. 1994) (quoting Salerno v. Phila.

Newspapers, Inc., 546 A.2d 1168, 1172 (Pa. Super. Ct. 1988).

Courts have found police officer conduct did not rise to “outrageous” in far more egregious

police encounters. “[A]n officer manufactur[ing] facts to support his affidavit of probable cause”

was not sufficiently outrageous. See Thompson v. City of Williamsport, No. 4:22-CV-01159, 2024

WL 1747645, at *17 (M.D. Pa. Apr. 23, 2024) (citing Mastromatteo, 866 F. Supp. at 859). Nor

was being held on an invalid warrant and without food for nearly 24 hours. Williams v. N. Coventry

Twp., No. 2:24-CV-06767-JDW, 2025 WL 1361286, at *4 (E.D. Pa. May 9, 2025). An officer

even evaded the label of “outrageous” when he burst through a door with other task force

officers—all of whom were wearing black clothing and did not identify themselves as police

officers—ordered the plaintiff to “freeze and get your hands up,” grabbed the “frozen” plaintiff,

dragged her off the staircase, flung her face-first into the couch, pressed the back of her neck,

continued to hold her down despite the plaintiff struggling to breathe, and manhandled the plaintiff

into handcuffs, all the while the plaintiff was exposed from her dress being lifted up, Kreider v.

Breault, No. CIV.A. 10-3205, 2012 WL 118326, at *2, *8 (E.D. Pa. Jan. 13, 2012).

Because Defendant’s conduct falls short of “outrageous,” Defendant’s motion for summary

judgment on Plaintiff’s IIED claim is GRANTED.

e. Supplemental Assault Claim

Under Pennsylvania law, an assault is “an act intended to put another in reasonable

apprehension of an immediate battery” (i.e., “offensive contact with the person of another” and the

intent to cause said contact), causes an apprehension of said battery. Kevin C. v. Founds. Behav.

Health, 705 F. Supp. 3d 368, 393 (E.D. Pa. 2023) (first quoting D’Errico v. DeFazio, 763 A.2d

424, 431 n.2 (Pa. Super. Ct. 2000); and then quoting Montgomery v. Bazaz-Sehgal, 742 A.2d 1125,

1130 (Pa. Super. Ct. 1999)). Defendant argues that stating, “If you do not pay me, I will arrest you

for theft” is not an assault because “it was nothing more than words,” and there is no affirmative

action on Defendant’s part. See Br. in Supp. of Def.’s Mot. for Summ. J., at 15 (ECF No. 46-1).

Without directing the Court to any cases to support her proposition, Plaintiff argues that Defendant

“expressly threaten[ing] to locate and arrest” her if she did not pay him back, and doing so in an

“angry, aggressive manner” constitutes an assault. See Pl.’s Br. in Opp’n to Def.’s Mot. for Summ.

J., at 28 (ECF No. 48).

Threatening to arrest someone in the future is not enough to put someone in “reasonable

apprehension of an immediate battery.” See Kevin C., 705 F. Supp. 3d at 393; cf. Napier v. City of

New Castle, No. CIV A 06-1368, 2007 WL 1965296, at *8 (W.D. Pa. July 3, 2007), aff’d, 407 F.

App’x 578 (3d Cir. 2010) (observing the “mere threat of incarceration is not sufficient to put a

person in imminent apprehension of physical injury and does not constitute an assault”).

Defendant’s motion for summary judgment on Plaintiff’s assault claim is GRANTED.

f. Qualified Immunity

Defendant seeks summary judgment on the affirmative defense of qualified immunity.

“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.” Reichle v. Howards, 566 U.S. 658, 664 (2012). As an affirmative defense, the burden of

establishing immunity falls on the official claiming it. See Burns v. Pa. Dep’t of Corr., 642 F.3d

163, 176 (3d Cir. 2011).

In resolving questions of qualified immunity at summary judgment, courts engage in a two-

pronged inquiry: (1) whether the facts, taken in the light most favorable to the nonmoving party

show the officer’s conduct violated a federal right, and (2) whether the right in question was clearly

established at the time of the violation. See Tolan v. Cotton, 572 U.S. 650, 655-56 (2014). Courts

are free to address the two elements in whichever order they deem appropriate. Halsey, 750 F.3d

at 287.

A right is clearly established if the state of the law at the time of the violation gives state

actors “fair warning that their alleged treatment of [the plaintiff] was unconstitutional.” Hope v.

Pelzer, 536 U.S. 730, 741 (2002). Courts should not “define clearly established law at a high level

of generality.” Sauers v. Borough of Nesquehoning, 905 F.3d 711, 716 (3d Cir. 2018) (quoting

Kisela v. Hughes, 584 U.S. 100, 104 (2018)) (explaining officer’s “request for qualified immunity

must be assessed within the context of the case law that has developed from accidents caused by

high-speed police pursuits that injure third parties”). A case need not be “directly on point for a

right to be clearly established,” but there must be “existing precedent” that “placed the statutory

or constitutional question beyond debate.” White v. Pauly, 580 U.S. 73, 79 (2017) (citation

modified).

Defendant does not contest that Plaintiff has a Fourth Amendment right to be free from

unreasonable searches and seizures. Nor does Defendant assert it is not clearly established that an

officer must have a minimum of reasonable suspicion before conducting a seizure. See United

States v. Lowe, 791 F.3d 424, 430 (3d Cir. 2015) (“Though law enforcement officers ordinarily

must obtain a warrant based on probable cause before conducting a seizure, in Terry v. Ohio the

Supreme Court articulated an exception that . . . . ‘an officer may, consistent with the Fourth

Amendment, conduct a brief, investigatory stop when the officer has a reasonable, articulable

suspicion that criminal activity is afoot.’” (citations omitted)). Rather, Defendant maintains that

he is entitled to qualified immunity as to Plaintiff’s unlawful seizure claim for his “reasonable but

mistaken belief that he had a basis to arrest Plaintiff for theft of services.”10

If there are disputed material facts as to the qualified immunity determination at the

summary judgment stage, then the police officer is not entitled to qualified immunity. Covington,

779 F. Supp. 3d at 522 (citing Ciardiello v. Sexton, 390 F. App’x 193, 201 (3d Cir. 2010)). The

existence of disputed, historical facts that are material to Defendant’s objective reasonableness is

a jury issue. See Curley v. Klem, 298 F.3d 271, 278 (3d Cir. 2002) (“a decision on qualified

immunity will be premature when there are unresolved disputes of historical fact relevant to the

immunity analysis.”).

Here, there are at least two factual disputes relevant to the qualified immunity defense:

whether Defendant told Plaintiff that she could not leave Walmart, and whether Defendant’s threat

of arrest was a mistake. If Defendant did tell Plaintiff that she could not leave, that can be enough

for the jury to find Defendant “seized” Plaintiff. Moreover, the jury could find that Defendant

made his threat of arrest out of anger and frustration—not a mistake as to his authority. Because

inferences are to be drawn in Plaintiff’s favor at this stage, the Court DENIES Defendant’s motion

for summary judgment on qualified immunity.

10 Defendant also argues that no reasonable officer would think that parking on the opposite

side of the parking lot would constitute a “seizure.” See Br. in Supp. of Def.’s Mot. for Summ. J.,

at 12 (ECF No. 46-1). The Court agrees with Defendant on this point, but that does not end the

Court’s qualified immunity inquiry.

g. Official Immunity

Defendant also raises the affirmative defense of official immunity as to Plaintiff’s state law

claims. State officials are granted official immunity under the Pennsylvania Political Subdivision

Tort Claims Act (“Tort Claims Act”), 42 Pa. C.S. §§ 8501-8564. Defendant receives substantially

the same protection, if not more protection, under Pennsylvania law as he does federal law. See

DeVatt v. Lohenitz, 338 F. Supp. 2d 588, 598 (E.D. Pa. 2004). To be protected by official

immunity, Defendant must establish: (1) the claim asserted must arise from or be reasonably

related to the employee’s duties; (2) the employee’s actions must not constitute a “crime, actual

fraud, actual malice or willful misconduct”; and (3) “the conduct of the employee which gave rise

to the claim was authorized or required by law,” or the employee “in good faith reasonably

believed the conduct was authorized or required by law.” See 42 Pa. C.S. §§ 8545-46, 8550; see

also DeVatt, 338 F. Supp. 2d at 599-600.

Defendant is not entitled to immunity under the Tort Claims Act for the same reasons he

is not entitled to qualified immunity. Defendant had no reasonable suspicion, let alone probable

cause, to order Plaintiff not to leave. And though Defendant maintains he “believed in good faith

at the time that he was authorized under the law and would have been within his duties to arrest

Plaintiff for theft of service,” Br. in Supp. of Def.’s Mot. for Summ. J., at 16 (ECF No. 46-1), that

requires the Court to accept that Defendant acted out of a mistaken belief. At this juncture, the

Court must draw inferences in Plaintiff’s favor, and it is plausible that Defendant acted out of anger

or frustration.

h. Punitive Damages

Defendant asserts that Plaintiff is not entitled to punitive damages because the record does

not show he acted in a reckless or callous manner. See id. However, “an inquiry into the availability

of punitive damages and the intent behind a defendant’s conduct is inherently fact-specific.” Judge

v. Shikellamy Sch. Dist., 135 F. Supp. 3d 284, 300 (M.D. Pa. 2015), aff’d, 905 F.3d 122 (3d Cir.

2018); see also Ponzini v. Monroe Cnty., 789 F. App’x 313, 314 (3d Cir. 2019) (citing SHV Coal,

Inc. v. Cont’l Grain Co., 587 A.2d 702, 705 (Pa. 1991)) (observing a determination of recklessness

“lies within the sound discretion of the fact finder” under Pennsylvania law).

The Court declines to enter summary judgment on punitive damages. Courts permit

punitive damages for both of Plaintiff’s surviving claims. See Ciaccio v. Upper Saucon Twp., No.

5:23-CV-02863-JDW, 2025 WL 1268689, at *11 (E.D. Pa. May 1, 2025) (recognizing punitive

damages in Section 1983 suit “when the defendant’s conduct is shown to be motivated by evil

motive or intent, or when it involves reckless or callous indifference to the federally protected

rights of others” (quoting Smith v. Wade, 461 U.S. 30, 56 (1983))); Chuy, 595 F.2d at 1277

(“Punitive damages are commonly awarded in cases of intentional torts.”); LeBeau v. Raith, No.

CV 17-38, 2017 WL 2264639, at *8 (E.D. Pa. May 24, 2017) (recognizing false imprisonment is

an intentional tort).

Whether under federal law or Pennsylvania law, Plaintiff must show a minimum of

“reckless” conduct on Defendant’s part. See Covington, 779 F. Supp. 3d at 538-39 (“It is sufficient

for the plaintiff to show either that the defendant acted with actual knowledge that he was violating

a right secured by the Constitution and laws, or that the defendant acted with reckless disregard of

whether he was thus violating such a right.” (quoting Cochetti v. Desmond, 572 F.2d 102, 106 (3d

Cir. 1978)) (citation modified)); Ponzini, 789 F. App’x at 314 (“Punitive damages may be awarded

for conduct that is outrageous, because of the defendant’s evil motive or his reckless indifference

to the rights of others.” (quoting Hutchison ex rel. Hutchison v. Luddy, 870 A.2d 766 (Pa. 2005))

(citation modified)). Viewing the facts in the light most favorable to Plaintiff, is possible the jury

could find that Defendant’s conduct was sufficiently “reckless” or “outrageous” to give rise to

punitive damages.11 Defendant’s motion for summary judgment as to punitive damages is

therefore DENIED.

V. CONCLUSION

The Court finds that no reasonable fact finder could reach a judgment for the Plaintiff on

her claims for racial discrimination, intentional infliction of emotional distress, or assault, even

drawing all inferences in her favor. As the non-moving party, Plaintiff was required to put forth

evidence to generate a genuine dispute of material fact, and she has not done so for these claims.

However, Plaintiff has raised a genuine dispute of material fact for her Section 1983 unlawful

seizure claim and state law false imprisonment claim, as well as her ability to recover punitive

damages for her surviving claims. Defendant is also not entitled to immunity on these claims.

Accordingly, the Court GRANTS summary judgment for Defendant on Plaintiff’s claims

for Section 1981 claim brought under Section 1981, Section 1981 brought under Section 1983,

intentional infliction of emotional distress claim, and assault. The Court DENIES summary

judgment on Plaintiff’s Section 1983 claim for unlawful seizure, Plaintiff’s false imprisonment

claim, punitive damages, and Defendant’s immunity defenses.

BY THE COURT:

JOHN M. GALLAGHER

United States District Court Judge

11 Allowing punitive damages to proceed but not IIED is not inconsistent. “Under

Pennsylvania law, the outrageousness standard for IIED is higher than that required for punitive

damages.” Brown, 723 F. Supp. 3d at 426 (citing Hoy, 720 A.2d at 754). Thus, Plaintiff’s claims

can be “outrageous” enough to warrant punitive damages while also not meeting the high bar of

“extreme and outrageous” for an IIED claim.