BURGOS v. NUTTER et al

Filing 72

ORDER THAT UPON CONSIDERATION OF THE PENDING MOTIONS AND RESPONSES, THE MOTION TO DISMISS OF DEFENDANTS THE CITY OF PHILADELPHIA, JOHN DELANEY, LOUIS GIORLA, MICHELE FARRELL 46 IS DISMISSED AS MOOT. PLAINTIFF'S MOTION TO FILE THE THIRD AMENDED COMPLAINT 53 IS GRANTED IN PART AND DENIED IN PART AS FOLLOWS: THE CLERK SHALL FILE THE THIRD AMENDED COMPLAINT. PLAINTIFF MAY PROCEED WITH THE TRIPLE-CELLING CLAIM UNDER DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AGAINST DEFENDANTS DELANEY, F ARRELL, GIORLA, AND THE CITY OF PHILADELPHIA. ALL CLAIMS AGAINST DEFENDANT MICHAEL NUTTER ARE DISMISSED WITH PREJUDICE. ALL REMAINING DEFENDANTS EXCEPT CORIZON SHALL FILE AN ANSWER TO THE THIRD AMENDED COMPLAINT WITHIN 14 DAYS OF THE DATE OF THIS ORD ER. CORIZON SHALL FILE ANY MOTION TO DISMISS NO LATER THAN 10 DAYS FROM THE DATE OF THIS ORDER. PLAINTIFF'S MOTION FOR APPOINTMENT OF SPECIAL COUNSEL 56 IS GRANTED. THE CLERK IS DIRECTED TO REFER THIS CASE TO THE PRISONER CIVIL RIGHTS PANEL. I N THE MEANTIME, THIS CASE SHALL REMAIN IN ACTIVE STATUS. PLAINTIFF'S OMNIBUS RESPOSNE AND CLARIFICATION MOTION 57 IS DISMISSED AS MOOT. PLAITNIFF'S DISCOVERY MOTION 62 IS DENIED WITHOUT PREJUDICE. DEFENDANTS' MOTION TO DEPOSE 67 IS GRANTED, ETC. SIGNED BY HONORABLE CYNTHIA M. RUFE ON 9/6/17. 9/7/17 ENTERED AND COPIES MAILED TO PRO SE AND E-MAILED.(ti, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
DAVID BURGOS,
:
Plaintiff,
:
:
v.
:
CIVIL ACTION NO. 13-4894
:
CITY OF PHILADELPHIA, et al.,
:
Defendants.
:
ORDER
AND NOW, this 6th day of September 2017, upon consideration of the pending motions
and responses, and for the reasons explained in the accompanying memorandum opinion, it is
hereby ORDERED as follows:
1. The Motion to Dismiss of Defendants the City of Philadelphia, John Delaney, Louis
Giorla, and Michele Farrell (Doc. No. 46) is DISMISSED AS MOOT.
2. Plaintiff’s Motion to File the Third Amended Complaint (Doc. No. 53) is GRANTED IN
PART AND DENIED IN PART AS FOLLOWS:
a.

The Clerk shall file the Third Amended Complaint (Doc. No. 53-1).

b.

Plaintiff may proceed with the triple-celling claim under the Due Process Clause

of the Fourteenth Amendment against Defendants Delaney, Farrell, Giorla, and the City of
Philadelphia.
c.

Plaintiff may proceed with the inadequate medical care claim under the Due

Process Clause of the Fourteenth Amendment against Defendants Delaney and Farrell. This
claim is DISMISSED against all other non-Corizon Defendants.
d.

Plaintiff may proceed with the First Amendment retaliation claim against Delaney

and Farrell. This claim is DISMISSED against all other non-Corizon Defendants.
e.

Plaintiff may proceed with the conversion claim against Delaney. This claim is

DISMISSED against all other non-Corizon Defendants.
f.

All claims against Defendant Michael Nutter are DISMISSED WITH

PREJUDICE.
g.

All remaining Defendants except Corizon shall file an ANSWER to the Third

Amended Complaint within 14 days of the date of this Order. Corizon shall file any motion

to dismiss no later than 10 days from the date of this Order, as per the Court’s April 11, 2017
Order (Doc. No. 61).
3. Plaintiff’s “Motion for Appointment of Special Counsel” (Doc. No. 56) is GRANTED
insofar as the case will be referred to the Prisoner Civil Rights Panel for possible appointment of
counsel. The Clerk is DIRECTED to refer this case to the Prisoner Civil Rights Panel for the
Eastern District of Pennsylvania for possible appointment of counsel. 1 In the meantime, this
case shall REMAIN IN ACTIVE STATUS.
4. Plaintiff’s “Omnibus Response and Clarification Motion” (Doc. No. 57) is DISMISSED
AS MOOT.
5. Plaintiff’s Discovery Motion (Doc. No. 62) is DENIED WITHOUT PREJUDICE.
Defendants shall respond to Plaintiff’s discovery requests in accordance with the Federal Rules
of Civil Procedure.
6. Defendants’ Motion to Depose (Doc. No. 67) is GRANTED. Counsel for Defendants
shall be permitted to depose Plaintiff, an incarcerated person, at a time, date and manner
convenient to the parties and the administration at the Pennsylvania Department of Corrections
System.
It is so ORDERED.
BY THE COURT:
/s/ Cynthia M. Rufe
_____________________
CYNTHIA M. RUFE, J.

1

Plaintiff has no legal right to an attorney in this civil action, and the Court is not appointing an attorney to represent
him, but only making his case available to volunteer attorneys who may choose to represent Plaintiff.

2