The opinion of the court was delivered by: Joseph A. DiClerico, Jr. United States District Judge
Dennis Huckins sued Officer Mark McSweeney and the Town of Sanbornton, New Hampshire, alleging a violation of his Fourth Amendment rights under 42 U.S.C. § 1983 against McSweeney, a claim for battery against both defendants, and a claim for malicious prosecution against Sanbornton. The defendants move for summary judgment. Huckins objects.
On the evening of January 20, 2009, Dennis Huckins and his friend, Gregory Gagnon,*fn1 were driving in Sanbornton, New Hampshire on their way to go snowmobiling. Huckins and Gagnon each drove his own truck, with Huckins following Gagnon. Gagnon's truck was towing the snowmobiles.
While driving on New Hampton Road, Officer Mark McSweeney observed that the taillights on the trailer that Gagnon was towing were not working. He pulled Gagnon over to the side of the road to conduct a routine traffic stop. Huckins, seeing that Gagnon had been stopped by a police officer, also pulled over, stopping about one hundred and fifty feet behind McSweeney's police cruiser.
Gagnon told McSweeney that Huckins was following him on their trip. McSweeney walked back to Huckins's truck and asked Huckins to pull in front of Gagnon's truck. Huckins said that he would. McSweeney noticed that Huckins eyes were glassy, but did not ask him any questions. After speaking with Huckins, McSweeney returned to his police cruiser.
Huckins pulled his truck out in front of Gagnon's truck as McSweeney had directed him to do. He then got out of his truck and walked back to Gagnon. Gagnon and Huckins decided that Huckins would drive ahead to the General Store and fill up some gas cans for the snowmobile trip. Huckins took the gas cans from Gagnon's truck, returned to his truck, and drove to the General Store.
McSweeney eventually returned to Gagnon's truck and noticed that Huckins was no longer at the scene. He asked Gagnon where Huckins had gone. Gagnon told him that Huckins had driven ahead to the General Store to get gasoline. McSweeney gave Gagnon a warning for the broken taillights, and Gagnon drove off to meet Huckins at the General Store.
Shortly after Gagnon arrived at the store, McSweeney arrived as well. McSweeney approached Huckins and Gagnon, both of whom were already out of their trucks. McSweeney asked Huckins if he could speak with him. Huckins agreed and they walked to McSweeney's police cruiser.
McSweeney asked Huckins whether he had consumed alcohol that day. Huckins said that he had not and that he did not ever drink alcohol. McSweeney again noticed that Huckins's eyes were glassy and asked Huckins if he could conduct a field sobriety test. Huckins consented. McSweeney's report noted that at this time, "Huckins appeared nervous and worried and was making poor eye contact."
Before performing the field sobriety test, McSweeney went over to Huckins's truck to record his license plate and radio it to dispatch. While at the truck, McSweeney noticed that Huckins was speaking to someone on his cell phone. McSweeney's police report noted that "Huckins was pacing and had his head down appearing anxious."
McSweeney then walked over to Gagnon and told him that he had noticed at the initial traffic stop that Huckins's eyes were glassy. McSweeney asked Gagnon if he knew whether Huckins had consumed alcohol that day. Gagnon told McSweeney that he did not think Huckins had consumed any alcohol that day and that he had not consumed any since the two had gotten together earlier that evening. McSweeney thanked Gagnon and returned to Huckins.
McSweeney began conducting a horizontal gaze nystagmus ("HGN") test on Huckins. The HGN test involved Huckins following a pen with his eyes without moving his head. McSweeney performed the exercise multiple times, but Huckins was unable to follow McSweeney's directions.
Huckins alleges that McSweeney was "rude and condescending," and that after numerous attempts at the HGN test, Huckins began to walk away toward his truck. McSweeney put his hand on Huckins's arm and told him that he was not free to leave. Huckins ignored McSweeney and began walking toward his truck. McSweeney started following him, and Huckins began running. McSweeney yelled for Huckins to stop, but Huckins continued to run. As Huckins passed Gagnon, Gagnon asked Huckins why he was running. Huckins did not answer.
As Huckins neared his truck, McSweeney fired his taser toward Huckins. The taser prongs struck Huckins in the back and he fell to the ground, injuring his right elbow. Gagnon contends that he saw McSweeney deploy the taser again when Huckins tried to get on his hands and knees. Huckins was subsequently placed under arrest and taken to the police station.
Summary judgment is appropriate if the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party opposing summary judgment "must set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). Material facts are "facts that might affect the outcome of the suit under the governing law." Id. at 248. The court considers the undisputed material facts and all ...