STEWART v. WAGNER et al

Filing 48

ORDER THAT THE MOTIONS TO DISMISS ARE GRANTED IN PART AND DENIED IN PART; PLFF MAY FILE A MOTION TO REASSERT HIS MEDICAL MALPRACTICE CLAIMS ON OR BEFORE 3/1/12. DEFTS ARE HEREBY DIRECTED TO ANSWER THE COMPLAINT ON OR BEFORE 3/15/12. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 1/30/12. 1/31/12 ENTERED AND COPIES E-MAILED.(fb)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
________________________________________________
JASON LAVANCE STEWART,
:
Plaintiff,
:
v.
:
:
BERKS COUNTY PRISONS WARDEN GEORGE
:
WAGNER, et al.,
:
Defendants.
:
________________________________________________:

CIVIL ACTION
NO. 06-3460

ORDER
AND NOW, this 30th day of January, 2012, upon consideration of the Motions to
Dismiss filed by Defendant Prison Warden George Wagner [Doc. No. 10] and Defendant BCP
Primary Physician Dr. Mary Beth Jackson [Doc. No. 18], and Plaintiff’s Response in Opposition
thereto, and for the reasons stated in the Memorandum Opinion filed this day, it is hereby
ORDERED that the Motions to Dismiss are GRANTED in part and DENIED in part as
follows:
1.

The Motions to Dismiss are DENIED as to Plaintiff’s medical indifference
claims.

2.

The Motions to Dismiss are GRANTED as to the following, which are hereby
DISMISSED with prejudice: (1) Plaintiff’s claims under the Sixth Amendment
to the United States Constitution; (2) Plaintiff’s claims under the equal protection
clause of the Fourteenth Amendment to the United States Constitution; and (3)
Plaintiff’s state law negligence claims against Warden Wagner.

3.

Plaintiff’s state law negligence claims against Dr. Mary Beth Jackson are
DISMISSED without prejudice; Plaintiff may file a motion to reassert his
medical malpractice claims on or before March 1, 2012, if Plaintiff attaches to
the motion the certificates of merit required by Pa. R. Civ. P. 1042.3; such a
motion should include supplemental briefing on the viability of the claims under

the applicable statute of limitations.
4.

Defendants are hereby directed to answer the Complaint on or before March 15,
2012.

It is so ORDERED.
BY THE COURT:

/s/ Cynthia M. Rufe
_______________________
HON. CYNTHIA M. RUFE