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Cvetko v. Derry Township Police Dep't

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA


July 20, 2010

MIKE CVETKO, PLAINTIFF
v.
DERRY TOWNSHIP POLICE DEPARTMENT, BRIAN K. GRUBB, MICHAEL HENRY, TODD HARRER, JOHN DOE, HERSHEY ENTERTAINMENT & RESORTS, AND ROBERT MEALS, DEFENDANTS

The opinion of the court was delivered by: Judge Conner

ORDER

AND NOW, this 20th day of July, 2010, upon consideration of the motion (Doc. 47) for leave to amend pleadings, wherein plaintiff Mike Cvetko ("Cvetko") seeks permission to file a third amended complaint, and to include allegations purportedly establishing (1) that defendants Hershey Entertainment & Resorts ("HE&R") and Robert Meals ("Meals") are liable for harm arising under 42 U.S.C. § 1983, and (2) that HE&R conspired with the Derry Township police to deprive Cvetko of his civil rights,*fn1 and it appearing that the proposed amendments fail to show that the actions of HE&R and Meals may be fairly treated as the actions of the state itself,*fn2 see Kach v. Hose, 589 F.3d 626, 646 (3d Cir. 2009) (explaining that private actors may be liable for constitutional torts when "there is such a close nexus between the State and the challenged action that seemingly private behavior may be fairly treated as that of the State itself"), or that HE&R and Meals engaged in a conspiracy to violate Cvetko's civil rights,*fn3 Farber v. City of Paterson, 440 F.3d 131, 134 (3d Cir. 2006) (explaining that an actionable civil rights conspiracy is one entered for "the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws"), and concluding that further amendment at this stage of the proceeding would be inequitable to HE&R and Meals, and also futile, see Travelers Indem. Co. v. Dammann & Co., 594 F.3d 238, 243 (3d Cir. 2010) (defining "futility" as a situation in which "the complaint, as amended, would fail to state a claim upon which relief could be granted" (quoting In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997))), it is hereby ORDERED that the motion (Doc. 47) for leave to amend pleadings is DENIED.

CHRISTOPHER C. CONNER United States District Judge


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