ODI v. ALEXANDER et al

Filing 21

ORDER THAT THE MOTIONS TO DISMISS ARE GRANTED IN PART AND DENIED IN PART AS OUTLINED HEREIN.. SIGNED BY HONORABLE R. BARCLAY SURRICK ON 3/7/2017. 3/8/2017 ENTERED AND COPIES E-MAILED.(kp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
JOHN ODI,
INDIVIDUALLY AND AS THE PERSONAL
REPRESENTATIVE OF THE ESTATE OF
LILY ODI, DECEASED
v.
GARY ALEXANDER, ET AL.

:
:
:
:
:
:
:
:

CIVIL ACTION
NO. 15-4903

ORDER
AND NOW, this

7th

day of

March , 2017, upon consideration of: (1)

Defendants’ Gary Alexander and Beverly Mackereth’s Motion to Dismiss First Amended
Complaint (ECF No. 5); (2) Defendant Linda Robson’s Motion to Dismiss First Amended
Complaint (ECF No. 12); and (3) Defendant Jane Richards’ Motion to Dismiss First Amended
Complaint (ECF No. 17), and all documents submitted in support thereof, and in opposition
thereto, it is ORDERED that the Motions to Dismiss are GRANTED in part, and DENIED in
part, as follows:
1.

Count I (claims under 42 U.S.C. § 2000d) and Count III (claims under 42 U.S.C.
§ 1981) are dismissed with prejudice.

2.

All claims asserted in Count II (claims under 42 U.S.C. § 1983) and Count IV
(claims under 42 U.S.C. § 1396a(a)(8), and 42 C.F.R. § 435.930(b)) against
Defendants in their official capacities are dismissed with prejudice.

3.

The substantive due process claims asserted in Count II are dismissed against all
Defendants with prejudice.

4.

The equal protection claims asserted in Count II (claims under 42 U.S.C. § 1983)
are dismissed without prejudice against all Defendants. Plaintiffs may amend

Count II within fourteen (14) days from the date of this Order, consistent with the
accompanying Memorandum.
5.

The procedural due process claims asserted in Count II (claims under 42 U.S.C. §
1983) are dismissed without prejudice against Defendants Alexander, Mackereth,
and Robson. Plaintiffs may amend Count II within fourteen (14) days from the
date of this Order, consistent with the accompanying Memorandum.

6.

Count IV (claims under 42 U.S.C. § 1396a(a)(8), and 42 C.F.R. § 435.930(b)) are
dismissed without prejudice against Defendants Alexander, Mackereth, and
Robson. Plaintiffs may amend Count IV without fourteen (14) days of the date of
this Order, consistent with the accompanying Memorandum.

IT IS SO ORDERED.

BY THE COURT:

___________________________
R. BARCLAY SURRICK, J.

2