MILLINER v. DIGUGLIELMO et al

Filing 82

ORDER THE MOTION OF DAVID DIGUGLIELMO, JULIE KNAUER, AND MYRON STANISHEFSKI TO DISMISS THE THIRD AMENDED COMPLAINT OF JOHN MILLINER, DKT. 64., IS HEREBY GRANTED AND THE COMPLAINT AGAINST THOSE DEFENDANTS IS DISMISSED WITHOUT PREJUDICE AS TO ALL COUNT S. THE MOTION OF RAYMOND MACHAK, P.A., JOHN ZARO, M.D., RICHARD STEFANIC, M.D., CALEB NWOSU, D.O. AND PRISON HEALTH SERVICES, INC. TO DISMISS THE THIRD AMENDED COMPLAINT OF JOHN MILLINER, DKT. 66, IS HEREBY GRANTED IN PART. COUNT II (AS TO MACHAK, S TEFANIC, AND NWOSU), AND COUNT X (AS TO PHS) ARE DISMISSED WITHOUT PREJUDICE. THE MOTION TO DISMISS IS DENIED AS TO ALL OTHER COUNTS, SUCH THAT COUNTS II (AS TO ZARO), III, IV, V, VI AND X (AS TO MACHAK, ZARO, STEFANIC, NWOSU) WILL REMAIN. THE MOTIO N OF CARROLL P. OSGOOD, M.D. AND ALTOONA HOSPITAL TO DISMISS THE THIRD AMENDED COMPLAINT OF JOHN MILLINER, DKT. 76, IS HEREBY GRANTED IN PART. COUNT X (AS TO DR. OSGOOD AND ALTOONA HOSPITAL) AND COUNT VIII ARE DISMISSED WITHOUT PREJUDICE. THE MOTION TO DISMISS IS DENIED AS TO ALL OTHER COUNTS SUCH THAT COUNT VII AND COUNT IX WILL REMAIN. MILLINER MAY AMEND HIS COMPLAINT NO LATER THAN 30 DAYS FROM THE DATE OF THIS ORDER, AFTER WHICH TIME THE DISMISSALS ORDERED HEREIN WILL, ABSENT A RESPONSIVE AM ENDMENT, BE WITH PREJUDICE. PLAINTIFF'S MOTION TO STRIKE REPLY BRIEF OF DEFENDANTS MACHAK, ZARO, STEFANIC, NWOSU AND PRISON HEALTH SERVICES, DKT. 80, IS DENIED. SEE LOCAL R. CIV. P. 7.1(C) ("[C]OURT MAY REQUIRE OR PERMIT FURTHER BRIEFS OR SUBMISSIONS IF THE COURT DEEMS IT APPROPRIATE."). SIGNED BY HONORABLE LOUIS H. POLLAK ON 6/7/11. 6/9/11 ENTERED AND COPIES E-MAILED.er, )

UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

CIVIL ACTION

JOHN MILLINER,

No. 08-4905

Plaintiff,
v.
DAVID DIGUGLIELMO, et al.,
Defendants.

ORDER
AND NOW, this 7 day of June, 2011, for the reasons discussed in the accompanying
memorandum, it is hereby ORDERED as follows:
(1) The Motion of David DiGuglielmo, Julie Knauer, and Myron Stanishefski to Dismiss
the Third Amended Complaint of John Milliner, dkt. 64., is hereby GRANTED and the
complaint against those defendants is DISMISSED without prejudice as to all counts.1
(2) The Motion of Raymond Machak, P.A., John Zaro, M.D., Richard Stefanic, M.D.,
Caleb Nwosu, D.O. and Prison Health Services, Inc. to Dismiss the Third Amended
Complaint of John Milliner, dkt. 66, is hereby GRANTED in part. Count II (as to

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Milliner’s complaint includes the following ten counts: I – deliberate indifference
as against David DiGuglielmo, Julie Knauer, and Myron Stanishefski; II – deliberate
indifference as against Raymond Machak, P.A., John Zaro, M.D., Richard Stefanic, M.D.,
Caleb Nwosu, D.O.; III – deliberate indifference as against PHS; IV – medical
malpractice as against the Raymond Machak, P.A., John Zaro, M.D., Richard Stefanic,
M.D., Caleb Nwosu, D.O.; V – corporate liability for medical malpractice as against PHS;
VI – vicarious liability for medical malpractice as against PHS; VII – medical malpractice
as against Carroll Osgood; VIII – corporate liability for medical malpractice as against
Altoona Hospital; IX – vicarious liability for medical malpractice as against Altoona
Hospital; X – negligence as against all defendants.
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Machak, Stefanic, and Nwosu), and Count X (as to PHS) are DISMISSED without
prejudice. The motion to dismiss is DENIED as to all other counts, such that Counts II
(as to Zaro), III, IV, V, VI and X (as to Machak, Zaro, Stefanic, Nwosu) will remain.
(3) The Motion of Carroll P. Osgood, M.D. and Altoona Hospital to Dismiss the Third
Amended Complaint of John Milliner, dkt. 76, is hereby GRANTED in part. Count X
(as to Dr. Osgood and Altoona Hospital) and Count VIII are DISMISSED without
prejudice. The motion to dismiss is DENIED as to all other counts such that Count VII
and Count IX will remain.
(4) Milliner may amend his complaint no later than 30 days from the date of this order,
after which time the dismissals ordered herein will, absent a responsive amendment, be
with prejudice.
(5) Plaintiff’s Motion to Strike Reply Brief of Defendants Machak, Zaro, Stefanic, Nwosu
and Prison Health Services, dkt. 80, is DENIED. See Local R. Civ. P. 7.1(c) (“[C]ourt
may require or permit further briefs or submissions if the Court deems it appropriate.”).

BY THE COURT:
/s/ Louis H. Pollak
Pollak, J.

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