WINSLOW v. THE BOUROUGH OF MALVERN PENNSYLVANIA et al

Filing 38

ORDER THAT DEFENDANTS, THE TOWNSHOP OF WILLISTOWN, CHIEF OF POLICE JOHN NARCISE AND OFFICER STEPHEN J. JONES' MOTION TO DISMISS IS GRANTED. PLAITNIFF'S AMENDED COMPLAINT AS TO THESE DEFENDANTS IS DISMISSED WITH PREJUDICE. DEFENDANTS, THE BO ROUGH OF MALVERN, CHIEF MICHAEL MCMAHON AND SGT. LLOYD DOUGLAS' MOTION TO DISMISS IS GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN: THE MOTION IS GRANTED AS TO DEFENDANTS THE BOROUGH OF MALVERN AND CHIEF MICHAEL MCMAHON. PLAINTIFF'S AMENDED COMPLAINT AGAINST THOSE DEFENDANTS IS DISMISSED WITH PREJUDICE, ETC. IT IS FURTHER ORDERED THAT A SCHEDULING CONFERENCE SHALL BE CONDUCTED IN DUE COURSE; IT IS FURTHER ORDERED THAT THE CAPTION OF THIS CASE SHALL BE AMENDED TO DELETE REFERENCE TO ALL DEFENDANTS EXCEPT SGT. LLOYD DOUGLAS, ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 12/7/2009. 12/7/2009 ENTERED AND COPIES MAILED, E-MAILED.(ap, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ____________________________________ RANDALL WINSLOW, On His Own Behalf and For Those Similarly Situated Plaintiff, v. THE BOROUGH OF MALVERN PENNSYLVANIA, CHIEF OF POLICE MICHAEL MCMAHON, POLICE OFFICER, LLOYD DOUGLAS, THE TOWNSHIP OF WILLISTOWN, CHIEF OF POLICE JOHN NARCISE, OFFICER STEPHEN J. JONES, Individually and in Their Official Capacities As Police Officers in the Borough of Malvern and the Township of Willistown Defendants. _____________________________________ : : : : : : : : : : CIVIL ACTION

NO. 08 - 1890

ORDER AND NOW, this 7th day of December, 2009, upon consideration of Defendants, The Borough of Malvern, Chief Michael McMahon, and Sgt Lloyd Douglas' [sic] Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Document No. 26, filed June 19, 2009); Defendants, the Township of Willistown, Chief of Police John Narcise and Officer Stephen J. Jones' [sic] Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (Document No. 27, filed June 26, 2009); and related submissions of the parties, for the reasons set forth in the Memorandum dated December 7, 2009, IT IS ORDERED as follows: 1. Defendants, the Township of Willistown, Chief of Police John Narcise and Officer Stephen J. Jones' [sic] Motion to Dismiss Plaintiff's Amended Complaint Pursuant to Fed.

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R. Civ. P. 12(b)(6) (Document No. 27) is GRANTED. Plaintiff's Amended Complaint as to these defendants is DISMISSED WITH PREJUDICE; 2. Defendants, the Borough of Malvern, Chief Michael McMahon, and Sgt. Lloyd Douglas' [sic] Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6) (Document No. 26) is GRANTED IN PART AND DENIED IN PART, as follows: a. The Motion is GRANTED as to defendants the Borough of Malvern and Chief Michael McMahon. Plaintiff's Amended Complaint against those defendants is DISMISSED WITH PREJUDICE; b. The Motion is GRANTED as to plaintiff's claims that Sgt. Lloyd Douglas (i) violated plaintiff's rights under the Fourth Amendment by making an extrajurisdictional arrest, (ii) violated plaintiff's rights under the Fifth Amendment by failing to give a Miranda warning at the appropriate time, (iii) violated the plaintiff's Eighth Amendment rights by using unreasonable force during an arrest, (iv) violated the plaintiff's Fourteenth Amendment Due Process rights by using unreasonable force during an arrest, (v) committed a battery by allowing hospital personnel to draw Plaintiff's blood, and (vi) committed the tort of intentional infliction of emotional distress, and all such claims are DISMISSED WITH PREJUDICE; c. The Motion is DENIED as to plaintiff's claims that Sgt. Lloyd Douglas (i) used unreasonable force in violation of the Fourth Amendment, (ii) committed an unreasonable search of the home at 12 Callery Way in violation of the Fourth Amendment, and (iii) committed a battery while arresting the plaintiff, WITHOUT PREJUDICE to Douglas's right to assert the defense of qualified immunity, and any -2-

other appropriate defense, after relevant discovery, in a summary judgment motion and/or trial. IT IS FURTHER ORDERED that a scheduling conference shall be conducted in due course; IT IS FURTHER ORDERED that the caption of this case shall be amended to delete reference to all defendants except Sgt. Lloyd Douglas. BY THE COURT:

/S/ Jan E. Dubois JAN E. DUBOIS, J.

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