ALLENTOWN — A federal judge has dismissed one of three police officers named as defendants in a lawsuit alleging a man was racially discriminated against when he was shot when driving his vehicle from his garage.
District Judge Joseph F. Leeson, Jr. granted the motion on July 11 to dismiss defendant Fred J. Contino from the complaint. The judge also partially granted a motion to dismiss a second defendant, Howard W. Altemos Jr. The rulings were made in the U.S. District Court for the Eastern District of Pennsylvania
Kevin McCullers, the plaintiff, failed to make sufficient arguments supporting his racial discrimination or equal protection claim against Altemos and Contino, according to the opinion.
McCullers filed the original lawsuit against Lehigh County, the officers and the city of Allentown on July 6, 2015, alleging his constitutional rights were violated in the shooting incident. A second amended complaint was filed on Dec. 1, 2015.
In his July ruling on the motions, the judge granted a supplemental motion to dismiss involving Contino and granted Contino's motion to dismiss cross-claims regarding Lehigh County, according to the opinion. A motion to dismiss involving defendant Carlos Roberto Bernardi was withdrawn.
"Next, in the absence of any factual allegations of Contino’s involvement or the exhaustion of any state post-deprivation remedies, McCullers’s unconstitutional taking claim against Contino is dismissed," Leeson wrote.
"The remaining claims against Contino, which include various theories of 'failure-to' liability, are also dismissed because McCullers failed to show Contino’s deliberate indifference and/or because Contino lacked the authority to act," the judge wrote in his opinion.
Altemos and Bernardi allegedly went to McCullers' residence on July 17, 2014, in order to serve a warrant for unpaid traffic and parking tickets. McCullers was backing his vehicle out of his garage when he was shot.
The shooting left McCullers paralyzed and wheelchair-bound.
In the suit, McCullers did not allege that the officers failed to complete their required constable training programs or that they failed to meet the firearms qualifications for constables, according to the opinion.
Contino, the chairman of the Constables' Education and Training Board, couldn't be held liable for Altemos, Bernardi or other unknown and unnamed officers' conduct for the shooting because the allegations alleged were insufficient.