Dillard v. Cornick et al

Filing 26

ORDER (Memorandum 25 filed previously as separate docket entry) GRANTING in part & DENYING in part defts' MTD 4 - Denied to extent it seeks dismissal of malicious prosecution claim (Ct 3) against Cornick in his indiv capacity for prosecution of pltf for charge of prohibited possession of fully auto assault rifle by a convicted felon, granting in all other respects as follows... (see Paras 2a-d for specifics), directing Clrk of Ct to terminate Harrisburg Police Bureau as deft in action, & granting pltf leave to amend his pleading w/in 20 days of date of this order... in absence of timely filed amended complaint action shall proceed on remaining claim against Cornick in his indiv capacity (See order for complete details.) Signed by Chief Judge Christopher C. Conner on 9/28/18. (ki)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NIKITA DILLARD,
Plaintiff
v.
SEAN CORNICK, individually
and in his official capacity, and the
HARRISBURG POLICE BUREAU,
Defendants

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CIVIL ACTION NO. 1:18-CV-70
(Chief Judge Conner)

ORDER
AND NOW, this 28th day of September, 2018, upon consideration of
the motion (Doc. 4) to dismiss filed by defendants Sean Cornick (“Cornick”),
individually and in his official capacity, and the Harrisburg Police Bureau, and the
parties’ respective briefs in support of and opposition to said motion, and for the
reasons set forth in the accompanying memorandum, it is hereby ORDERED that:
1.

Defendants’ motion (Doc. 4) to dismiss is DENIED to the extent it
seeks dismissal of the malicious prosecution claim (Count 3) against
Cornick in his individual capacity for prosecution of plaintiff Nikita
Dillard (“Dillard”) for a charge of prohibited possession of a fully
automatic assault rifle by a convicted felon.

2.

Defendants’ motion (Doc. 4) is GRANTED in all other respects as
follows:
a.

Dillard’s claim for monetary damages under Article I, Section 8
of the Pennsylvania Constitution (Count 1) is DISMISSED with
prejudice.

b.

Dillard’s claims against Cornick in his official capacity as an
employee of the Harrisburg Police Bureau (Counts 2 and 3) and
his claim for municipal liability against the Harrisburg Police
Bureau (Count 4) are DISMISSED with prejudice to the extent
the Harrisburg Police Bureau is not a proper Section 1983
defendant.

c.

Dillard’s claim against Cornick in his individual capacity for
false arrest and false imprisonment (Count 2) is DISMISSED
without prejudice.

d.

Dillard’s claim against Cornick in his individual capacity
for malicious prosecution (Count 3) is DISMISSED without
prejudice to the extent it is based on charges against Dillard for
prohibited possession of a handgun by a convicted felon, use
and possession of drug paraphernalia, and receipt of stolen
property.

3.

The Clerk of Court is directed to terminate the Harrisburg Police
Bureau as a defendant in the above-captioned action.

4.

Dillard is granted leave to amend his pleading within twenty (20)
days of the date of this order, consistent with the above paragraphs
and the accompanying memorandum. In the absence of a timely filed
amended complaint, the above-captioned action shall proceed on
Dillard’s remaining claim against Cornick in his individual capacity.

/S/ CHRISTOPHER C. CONNER
Christopher C. Conner, Chief Judge
United States District Court
Middle District of Pennsylvania