BROWN et al v. PITTS et al

Filing 28

ORDER THAT DEFENDANTS OFFICER STEVEN ZIVIELLO AND ALDAN BOROUGH'S MOTION TO DISMISS, PLAINTIFFS SECOND AMENDED COMPLAINT IS DISMISSED IS GRANTED, AND ALL CLAIMS AGAINST STEVEN ZIVIELLO AND ALDAN BOROUGH ARE DISMISSED WITH PREJUDICE.MOTION FOR P ARTIAL DISMISSAL UNDER FEDERAL RULE OF CIVIL PROCEDURE 12 (b)(6) AND MOTION TO STRIKE PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 12 (f) OF DEFENDANTS LIAM MCELWEE, BRIAN EVANS, OFFICER CUDDHY AND DARBY BOROUGH IS GRANTED IN PART AND DENIED IN PART; ETC.. SIGNED BY HONORABLE JAN E. DUBOIS ON 11/6/13. 11/7/13 ENTERED AND E-MAILED.(jl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
MARCIA BROWN and
JAMES WILLIAMS,
Plaintiffs,

CIVIL ACTION

v.
NO. 12-3547
OFFICER LIAM MCELWEE,
OFFICER BRIAN EVANS,
OFFICER J. KEITH,
OFFICER CUDDHY,
OFFICER STEVEN ZIVIELLO,
UNKNOWN POLICE OFFICERS,
ALDAN BOROUGH, and
DARBY BOROUGH,
Defendants.
ORDER
AND NOW, this 6th day of November, 2013, upon consideration of Defendants, Officer
Steven Ziviello and Aldan Borough’s Motion to Dismiss, Plaintiffs’ Second Amended Complaint
(Document Number 21, filed July 10, 2013), Motion for Partial Dismissal Under Federal Rule of
Civil Procedure 12(b)(6) and Motion to Strike Pursuant to Federal Rule of Civil Procedure 12(f) of
Defendants, Liam McElwee, Brian Evans, J. Keith, Officer Cuddhy and Darby Borough (Document
No. 24, filed July 15, 2013), Plaintiffs Answer, to Defendants’ Motion to Dismiss Plaintiffs’ Second
Amended Complaint Under Federal Rule of Civil Procedure 12(b)(6) (Document No. 25, August 7,
2013), and Defendants, Officer Steven Ziviello and Aldan Borough’s Reply to Plaintiffs’ response
to Motion to Dismiss Plaintiffs’ Second Amended Complaint (Document No. 26, filed August 21,
2013), for the reasons set forth in the attached Memorandum dated November 6, 2013, IT IS
ORDERED as follows:
1. Defendants, Officer Steven Ziviello and Aldan Borough’s Motion to Dismiss, Plaintiffs’
Second Amended Complaint (Document Number 21, filed July 10, 2013) is GRANTED, and all
claims against Steven Ziviello and Aldan Borough are DISMISSED WITH PREJUDICE.

2. Motion for Partial Dismissal Under Federal Rule of Civil Procedure 12(b)(6) and Motion
to Strike Pursuant to Federal Rule of Civil Procedure 12(f) of Defendants, Liam McElwee, Brian
Evans, J. Keith, Officer Cuddhy and Darby Borough (Document No. 24, filed July 15, 2013) is
GRANTED IN PART AND DENIED IN PART as follows:
a. That part of defendants’ Motion seeking dismissal of Count I, the maliciousprosecution claim included in Count II, the equal-protection claim included in
Count III, and Count IV, is GRANTED WITH PREJUDICE.
b. That part of defendants’ Motion requesting that the Court strike the remaining
claims in Count III is GRANTED.
c. That part of defendants’ Motion seeking dismissal of Count V is DENIED. The
Court construes plaintiffs’ allegations in Count V as tort-law claims rather than
claims brought under the Pennsylvania Constitution.
IT IS FURTHER ORDERED that the caption of the case is amended to DELETE
reference to all defendants excepting Officers Liam McElwee, Brian Evans, J. Keith, and Cuddhy.

BY THE COURT:

/s/ Jan E. DuBois
sdf
DuBOIS, JAN E., J.

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