MCCULLERS v. COMMONWEALTH OF PENNSYLVANIA et al

Filing 71

ORDER THAT THE MOTIONS TO DISMISS FILED BY THE CITY OF ALLENTOWN, ECF NO. 28, LEHIGH COUNTY, ECF NO. 30, CARLOS ROBERTO BERNARDI, ECF NO. 41, AND THE COMMONWEALTH OF PENNSYLVANIA AND FRED J. CONTINO, ECF NO. 50, ARE GRANTED IN PART AND DENIED IN PART AS FOLLOWS: A. ANY FIRST AMENDMENT CLAIMS ARE DISMISSED WITH PREJUDICE. B. PLAINTIFFS FOURTEENTH AMENDMENT CLAIMS FOR VIOLATION OF HIS DUE PROCESS RIGHTS ARE DISMISSED WITH PREJUDICE, ETC. THE CLERK OF COURT SHALL TRANSFER THE ABOVE-CAPTIONED ACTION TO THE CIVIL SUSPENSE DOCKET, AND MARK THE CASE CLOSED FOR STATISTICAL PURPOSES, ETC. SIGNED BY HONORABLE JOSEPH F. LEESON, JR ON 6/30/16. 6/30/16 ENTERED AND COPIES E-MAILED.(er, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF PENNSYLVANIA
_______________________________________
KEVIN MCCULLERS,
Plaintiff,
v.

:
:
:
:
COMMONWEALTH OF PENNSYLVANIA, :
LEHIGH COUNTY,
:
CITY OF ALLENTOWN,
:
CARLOS ROBERTO BERNARDI,
:
JOHN DOES, 1 THROUGH 10,
:
FRED J. CONTINO,
:
and HOWARD W. ALTEMOS, JR.,
:
Defendants.
:
_______________________________________

No. 5:15-cv-3732

ORDER
AND NOW, this 30th day of June, 2016, for the reasons set forth in the Memorandum
issued this date, IT IS HEREBY ORDERED THAT:
1.
The Motions to Dismiss filed by the City of Allentown, ECF No. 28, Lehigh
County, ECF No. 30, Carlos Roberto Bernardi, ECF No. 41, and the Commonwealth of
Pennsylvania and Fred J. Contino, ECF No. 50, are GRANTED in part and DENIED in part
as follows:
A.

Any First Amendment claims are DISMISSED with prejudice.

B.
Plaintiff’s Fourteenth Amendment claims for violation of his due process
rights are DISMISSED with prejudice.
C.
Plaintiff’s Fourteenth Amendment claims under the theory of an equal
protection violation are DISMISSED without prejudice. Plaintiff shall file a second
amended complaint within twenty days of the date this action is returned to the Court’s
active docket.
D.
Plaintiff’s Fourth Amendment claims may proceed against all moving
Defendants under the limited theories discussed in the Memorandum.
E.
The Commonwealth of Pennsylvania, and all claims against it, are
DISMISSED with prejudice. The Clerk of Court shall TERMINATE the
Commonwealth of Pennsylvania as a party to this action.

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F.
The claims against Contino are DISMISSED. The Clerk of Court shall
TERMINATE Contino as a party to this action. The official capacity claims are
dismissed with prejudice, but the individual capacity claims are dismissed without
prejudice. Plaintiff shall file a second amended complaint as to the individual capacity
claims within twenty days of the date this action is returned to the Court’s active docket.
G.
H.
2.

Contino’s qualified defense is DENIED without prejudice as moot.
Bernardi’s request to strike is DENIED without prejudice.

Altemos’s Motion to Stay, ECF No. 31, is GRANTED.

A.
The Clerk of Court shall TRANSFER the above-captioned action to the
Civil Suspense Docket, and MARK the case CLOSED for statistical purposes.
B.
The Court shall RETAIN jurisdiction over the case and shall RETURN it
to the Court’s active docket once the case is ready to proceed to final disposition.
C.
The parties are directed to notify this Court within twenty days of the
conclusion of the state criminal proceedings against Defendant Altemos.

BY THE COURT:

/s/ Joseph F. Leeson, Jr._____________
JOSEPH F. LEESON, JR.
United States District Judge

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