DeGroat v The Commonwealth of PA

Filing 38

ORDER granting in part and denying in part 26 Motion to Dismiss for Failure to State a Claim. See Order for specific details. Plaintiffs have 21 days to file a second amended complaint to properly plead the claims dismissed without prejudice herein, if they are able to do so; otherwise these claims will be dismissed with prejudice. Signed by Honorable A. Richard Caputo on 5/17/17 (jam)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
MICHAEL DEGROAT, Individually
and as Administrator of the Estate of
Derek DeGroat, Sheila Marie DeGroat,
Breeanna DeGroat, and Derek Edward
Michael DeGroat by Lindsey Erk as
parent and natural guardian,

CIVIL ACTION NO. 3:16-cv-1186
(JUDGE CAPUTO)

Plaintiffs,
v.
SERGEANT PAUL V. CAVALLARO, et
al.,
Defendants.
ORDER
NOW, this 17th day of May, 2017, IT IS HEREBY ORDERED that the moving
Defendants’ Motion to Dismiss (Doc. 26) is GRANTED in part and DENIED in part.
(1)

The following claims are DISMISSED with prejudice:
(a)

Plaintiffs’ Fourteenth Amendment substantive due process claim
contained in Count I;

(b)

Count IX, only to the extent that this Count asserts a claim for negligent
infliction of emotional distress (“NIED”) that is already asserted in Count
III;

(c)

All claims pursuant to 42 U.S.C. § 1983 against members of the
Pennsylvania State Police (“PSP”) in their official capacities that seek
retrospective monetary relief; and

(d)

All state-law claims asserted against members of the PSP in their
official capacities.

(2)

The following claims are DISMISSED without prejudice:
(a)

Plaintiffs’ failure-to-intervene claim contained in Count I;

(b)
(c)
(3)

Count IV; and
Count VI.

Plaintiffs have twenty-one (21) days from the date of entry of this Order to file
a second amended complaint to properly plead the claims dismissed without
prejudice herein, if they are able to do so; otherwise, these claims will be
dismissed with prejudice.

/s/ A. Richard Caputo
A. Richard Caputo
United States District Judge

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