ERNAY et al v. SWATSKI et al

Filing 5

ORDER THAT DEFT'S MOTION TO DISMISS IN PART IS GRANTED IN PART AND DENIED IN PART, ETC. ( SIGNED BY HONORABLE JAN E. DUBOIS ON 6/23/10. ) 6/25/10 ENTERED AND COPIES E-MAILED.(gn, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA ____________________________________ ADRANIH ERNAY, ADRIAN ERNAY, WENDELL WESLEY, OTIS RAGLAND, LINDA FAUST, WILLIAM CHRISTY, A Minor By and Through His Natural Parent Guardian Linda Faust, DENASIA CHRISTY, A Minor By and Through Her Natural Parent and Guardian Linda Faust Plaintiffs, v. CHRIS SWATSKI, JOHN DOE #1 THROUGH #6 Defendants. ____________________________________ : : : : : : : : : : : : : : : CIVIL ACTION

NO. 10-1035

ORDER AND NOW, this 23rd day of June, 2010, upon consideration of Defendant Chris Swatski's Motion To Dismiss In Part (Document No. 2, filed April 7, 2010); and Plaintiffs' Reply To Defendant Swatski's Motion To Dismiss In Part (Document No. 3, filed April 21, 2010), IT IS ORDERED that defendant Swatski's Motion To Dismiss In Part is GRANTED IN PART AND DENIED IN PART, as follows: a. The part of defendant's motion which seeks a dismissal of claims against Defendant Swatski in his official capacity is GRANTED and those claims are DISMISSED WITH PREJUDICE; b. The part of defendant's motion which seeks a dismissal of claims asserted by minor plaintiffs William Christy and Denasia Christy in Count One of the Complaint is GRANTED -1-

WITHOUT PREJUDICE to plaintiffs' right to file an Amended Complaint within twenty days if warranted by the facts; c. The part of defendant's motion which seeks a dismissal of plaintiffs' state law claim is MARKED WITHDRAWN by agreement of the parties; and d. The part of defendant's motion which seeks a dismissal of the excessive force claim in Count Three is DENIED WITHOUT PREJUDICE to defendant's right to assert the defense of qualified immunity, and any other appropriate defense, after relevant discovery by summary judgment motion and/or at 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 plaintiffs William Christy and Denasia Christy. BY THE COURT:

/s/ Hon. Jan E. DuBois JAN E. DUBOIS, J.

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