Dimarco v. Borough of Saint Clair et al

Filing 20

ORDER (memorandum filed previously as separate docket entry) granting in part and denying in part 9 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Richard Tomko, William Dempsey, Borough of Saint Clair. See order for further details. Signed by Honorable Jennifer P. Wilson on 1/6/2021. (ve)

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Case 3:20-cv-01335-JPW Document 20 Filed 01/06/21 Page 1 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA FRANK DIMARCO, : Civil No. 3:20-CV-01335 : Plaintiff, : : v. : : BOROUGH OF ST. CLAIR, et al., : : Defendants. : Judge Jennifer P. Wilson ORDER AND NOW, on this 6th day of January, 2021, for the reasons stated in the accompanying memorandum, IT IS ORDERED THAT: 1. Defendants’ motion to dismiss (Doc. 9) is GRANTED IN PART AND DENIED IN PART. 2. Plaintiff’s retaliation claim is DISMISSED WITHOUT PREJUDICE to the extent that it is based on the August 3, 2019 incident in which Plaintiff damaged his vehicle, and to the extent that it is raised against Defendant Tomko based on Plaintiff’s May 20, 2019 Facebook post. Dismissal of the retaliation claim is otherwise denied. 3. Plaintiff’s municipal liability claim is DISMISSED WITHOUT PREJUDICE. 4. Count II of Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE with respect to Defendants Tomko and Dempsey. 1 Case 3:20-cv-01335-JPW Document 20 Filed 01/06/21 Page 2 of 2 5. Count III of Plaintiff’s complaint is DISMISSED WITHOUT PREJUDICE. 6. The complaint is DISMISSED WITHOUT PREJUDICE to the extent that it raises a supervisory liability claim against Defendants Tomko and Dempsey. 7. Plaintiff’s claim for injunctive relief is DISMISSED WITHOUT PREJUDICE. 8. Plaintiff’s request for punitive damages against Defendant Borough of St. Clair and against Defendants Tomko and Dempsey in their official capacities is DISMISSED WITH PREJUDICE. 9. Plaintiff may file an amended complaint in accordance with this order and the accompanying memorandum on or before January 27, 2021. 10. If Plaintiff declines to file an amended complaint by the above date, Defendants are directed to respond to the original complaint in accordance with the Federal Rules of Civil Procedure. s/Jennifer P. Wilson JENNIFER P. WILSON United States District Court Judge Middle District of Pennsylvania 2

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