Zavec v. Collins et al
ORDER granting in part and denying in part 23 Motion to Dismiss Plaintiffs' Second Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6). (a) Counts I and II are DISMISSED with prejudice. (b) Count III as it relates to Plaintiff, Joseph Zav ec's claim only, is DISMISSED with prejudice. (c) Count V is DISMISSED with prejudice. (d) Count VI is DISMISSED without prejudice. (e) Count VII properly states a claim, and as such, Defendants' Partial Motion to Dismiss is DENIED as to this count. SEE ORDER FOR FULL DETAILS.Signed by Honorable A. Richard Caputo on 7/27/2017 (arcsec, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
DAWN ZAVEC, et al.
ROBERT COLLINS, BRIAN GIST, and
CITY OF WILKES-BARRE,
NOW, this 27th day of July, 2017, IT IS HEREBY ORDERED that Defendants Robert
Collins, Brian Gist, and City of Wilkes-Barre’s Partial Motion to Dismiss (Doc. 23) Plaintiffs’
Second Amended Complaint (Doc. 22) is GRANTED in part and DENIED in part, in that:
Counts I and II are DISMISSED with prejudice.
Count III, as it relates to Plaintiff Joseph Zavec’s claim only, is DISMISSED
Count V is DISMISSED with prejudice. Plaintiffs may, within fourteen (14)
days from the date of entry of this Order, amend the Second Amended
Complaint to add any state law tort claims that provide Plaintiffs with a more
adequate post-deprivation remedy.
Count VI is DISMISSED without prejudice. Plaintiffs may, within fourteen
(14) days from the date of entry of this Order, amend the Second Amended
Complaint to reassert the claims in Count VI if they provide evidence in the
form of certified court records demonstrating that Plaintiff Joseph Zavec's
"conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance of a writ of
habeas corpus." Heck v. Humphrey, 512 U.S. 477, 487 (1994). Otherwise,
Count VI will be DISMISSED with prejudice.
Count VII properly states a claim, and, as such, Defendants’ Partial Motion to
Dismiss (Doc. 23) is DENIED as to this Count.
/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge
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