MCLAUGHLIN v. CUNNINGHAM et al

Filing 21

OPINION/ORDER THAT THE CUNNINGHAM MOTION TO DISMISS AND THE FOUNTAIN HILL MOTION TO DISMISS ARE EACH GRANTED IN PART AND DENIED IN PART. IT IS FURTHER ORDERED THAT PLAINTIFF SHALL HAVE UNTIL APRIL 18, 2014 TO FILE AN AMENDED COMPLAINT FOR THE PURPOS E OF REPLEADING HIS CLAIMS IN COUNTS ONE AND TWO IN ORDER TO REMEDY THE DEFICIENCIES IDENTIFIED IN THE ACCOMPANYING OPINION. IT IS FURTHER ORDERED THAT, IN THE EVENT THAT PLAINTIFF DOES NOT FILE AN AMENDED COMPLAINT BY APRIL 18, 2014, DEFENDANTS SHALL HAVE UNTIL MAY 16, 2014 TO ANSWER PLAINTIFF'S COMPLAINT. SIGNED BY HONORABLE JAMES KNOLL GARDNER ON 3/25/14. 3/25/14 ENTERED AND COPIES E-MAILED.(ky, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
RICHARD J. McLAUGHLIN,

)
)
)
)
)
)
)
)
)
)

Plaintiff
v.
GRADY CUNNINGHAM, JR., and
BOROUGH OF FOUNTAIN HILL,
Defendants

Civil Action
No. 13-cv-01926

O R D E R
NOW, this 25th day of March, 2014, upon consideration of the
following documents:
(1)

Motion to Dismiss by Defendant, Grady Cunningham filed
May 17, 2013 (“Cunningham Motion to Dismiss”); and

(2)

Defendant, Borough of Fountain Hill’s Motion to
Dismiss filed May 16, 2013 (Fountain Hill Motion to
Dismiss”);

upon consideration of the pleadings, together with defendants’
respective memoranda and plaintiff’s brief in this matter; and for the
reasons expressed in the accompanying Opinion,
IT IS ORDERED that the Cunningham Motion to Dismiss and the
Fountain Hill Motion to Dismiss are each granted, in part, and denied,
in part.
IT IS FURTHER ORDERED that the Cunningham Motion to Dismiss
and the Fountain Hill Motion to Dismiss are each granted to the extent
that they seek to dismiss plaintiff’s Eighth Amendment claim in Counts
One and Two of the Complaint.
IT IS FURTHER ORDERED that Counts One and Two of the
Complaint are each dismissed to the extent that they seek to assert a
claim under the Eighth Amendment.

IT IS FURTHER ORDERED that the Cunningham Motion to Dismiss
is denied in all other respects.
IT IS FURTHER ORDERED that the Fountain Hill Motion to
Dismiss is granted to the extent that it seeks to dismiss plaintiff’s
municipal liability claim asserted under official-policy and failureto-train theories in Count Two.
IT IS FURTHER ORDERED that Count Two of the Complaint is
dismissed to the extent that it seeks to establish municipal liability
under official-policy and failure-to-train theories.
IT IS FURTHER ORDERED that the Fountain Hill Motion to
Dismiss is denied to the extent that it seeks to dismiss plaintiff’s
municipal liability claim asserted under a municipal-custom theory in
Count Two.
IT IS FURTHER ORDERED that plaintiff shall have until
April 18, 2014 to file an amended complaint for the purpose of repleading his claims in Counts One and Two in order to remedy the
deficiencies identified in the accompanying Opinion.
IT IS FURTHER ORDERED that, in the event that plaintiff
does not file an amended complaint by April 18, 2014, defendants shall
have until May 16, 2014 to answer plaintiff’s Complaint.
BY THE COURT:

/s/ JAMES KNOLL GARDNER
__
James Knoll Gardner
United States District Judge

-ii-