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)

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.

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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

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