Dunkelberger et al v. D'Amico et al
| Richard Holt Dunkelberger and Sara Allen |
| Joseph D'Amico, Richard Henry Dunkelberger, Merilyn Gale Dunkelberger, William Willard Dunkelberger, Benjamin Dunkelberger, Scott Reilly, Joseph Izzo, Ryan Delaney, Come N. Ketchakeu, Anthony Gentile, Craig Siegal, John Fitzgerald and John Doe |
| 7:2014cv03877 |
| May 30, 2014 |
| US District Court for the Southern District of New York |
| White Plains Office |
| Westchester |
| Kenneth M. Karas |
| Other Civil Rights |
| 28 U.S.C. ยง 1446 |
| Plaintiff |
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Filing
35
OPINION & ORDER: the Dunkelberger Defendants', the Somers Police Defendants', and the State Trooper Defendants' Motions To Dismiss are granted in part and denied in part. As to the claims alleged against the State Trooper and Somers Police Defendants, the Court grants Defendants' Motions To Dismiss Plaintiffs' state law claims, Plaintiffs' Fifth Amendment self-incrimination claim, Plaintiffs' Eighth Amendment Claim, Plaintiffs' Second Amendment C laim, and Plaintiffs' excessive force claim, except as to Delaney's alleged use of force against Richard and Sarah as described herein. As to the claims alleged against the Dunkelberger Defendants, the Court grants the Motion To Dismis s Plaintiffs' claim based on the New York Mental Hygiene Law. The Court denies Defendants' Motion as to the unreasonable search claim, the false arrest claim, the excessive force claim against Delaney related to his use of force against Sarah and Richard, the § 1985 conspiracy claim, and the conversion claim. The claims that are dismissed are dismissed with prejudice, as Plaintiffs have already twice amended, including once in response to Defendants' pre-motion letters raising the arguments addressed in the instant Opinion. Justice v. McGovern, No. 11-CV-5076, 2013 WL 1809634, at *3 (E.D.N.Y. Apr. 29, 2013) ("Although when a motion to dismiss is granted, the usual practice is to grant leave to amend the c omplaint, when the plaintiff is put on notice of the deficiencies in his complaint and fails to correct them in the amended complaint[,] dismissal with prejudice is proper" (brackets, citation, ellipses, and internal quotation marks omitted)) ; Tyler v. Liz Claiborne, Inc., 814 F. Supp. 2d 323, 344 (S.D.N.Y. 2011) ("[A]s plaintiff has already amended his complaint twice, dismissal with prejudice is appropriate at this stage in the litigation.") Nonetheless, Plaintiff may file a Third Amended Complaint to the extent permitted herein to add new claims within 30 days of the date of this Opinion and Order. The Clerk of the Court is respectfully directed to terminate the pending Motions. (See Dkt. Nos. 17, 18, 21.) SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/30/2015) (lnl)
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