The opinion of the court was delivered by: Gary L. Sharpe District Court Judge
MEMORANDUM-DECISION AND ORDER
Pro se plaintiff Clarence Delaney, Jr. brings this action under 42 U.S.C. § 1983 against defendants Jan Mika, James Lewis, and the City of Albany, alleging violations of his Fourth, Eighth, and Fourteenth Amendment rights. (See Am. Compl., Dkt. No. 9.) Delaney also alleges various state law causes of action, including claims for intentional infliction of emotional distress,*fn1 negligence, assault, libel, slander, and race-based discrimination. Pending is defendants' motion for summary judgment. (Dkt. No. 45.) For the reasons that follow, the motion is granted in part and denied in part.
On May 17, 2007, at approximately 11:30 p.m., Officers Lewis and Mika were conducting a routine patrol in the area around Grand Street in Albany. (See Def. SMF ¶¶ 5, 6, 11, Dkt. No. 45:15.) The area around Grand Street has a high incidence of crime, including a high rate of car larcenies. (See id. at ¶ 12.) The officers were traveling in "marked" Albany Police Department vehicles. (See id. at ¶ 14.) The vehicle that Officer Lewis was driving was traveling approximately seven to ten feet behind the vehicle that Officer Mika was driving. (See id. at ¶ 15.)
While driving northbound on Grand Street, Officer Mika observed Delaney peering in the windows of parked cars. (See id. at ¶ 16.) Delaney disputes that he was acting suspicious near parked cars since being on the street in Albany necessitates that a person be near a parked car.*fn2 As Officer Mika got closer, Delaney moved backwards to an unlit area near a building. (See id. at ¶ 18.) Thereafter, Officer Mika stopped his vehicle, rolled down his window, and asked Delaney to speak with him. (See id. at ¶ 19.) Delaney refused to respond to Officer Mika's initial request for information. (See id. at ¶ 21.)
As Officer Mika exited his vehicle, plaintiff reached his hand towards his waistband and began running. (See id. at ¶ 22.) Thereafter, Officer Mika pursued Delaney on foot, with Officer Lewis following in his vehicle. (See id. at ¶¶ 24, 25,26.) Officer Mika believed that based on Delaney's hand motion, he was in possession of a handgun. (See id. at ¶ 23.)
Delaney subsequently fell while running. (See id. at ¶ 30.) Although not entirely clear how, Officer Mika ended up on the ground with Delaney.
While Delaney disputes that he rolled himself underneath*fn3 a vehicle that was parked on Wilbur Street, he does admit that he was near the car's back bumper. (See id. at ¶ 33.) Although, Delaney disputes this fact, according to both officers, Delaney then began placing "rocks" of cocaine in his mouth while he was underneath the parked vehicle. (See id. at ¶ 36.) Thereafter, Officer Lewis assisted Officer Mika in restraining Delaney. (See id. at ¶ 37.) However, Delaney continued to pull his arms away from both officers. (See id. at ¶ 35.)
Officer Lewis warned Delaney that if he did not comply with the officers' commands, he would spray him with "OC" (pepper spray). (See id. at ¶ 41.) Accordingly, as a result of Delaney's continued failure to comply, Officer Lewis dispensed the spray on Delaney. (See id. at ¶ 44.) Delaney was then handcuffed despite continuing to be combative. (See id.)
The standard for the grant of summary judgment is well established and will not be repeated here. For a full discussion of the standard, the court refers the parties to its previous opinion in Bain v. Town of Argyle, 499 F. Supp. 2d 192, 194-95 (N.D.N.Y. 2007).