DEWALD v. JENKINS et al

Filing 38

ORDERED THAT DEFENDANTS MOTION TO DISMISS PLAINTIFF'S AMENDED COMPLAINT IS DENIED. PLAINTIFF MAY FILE A SECOND AMENDED COMPLAINT ON OR BEFORE 3/5/18.SIGNED BY HONORABLE GERALD J. PAPPERT ON 2/5/18. 2/8/18 ENTERED AND COPIES MAILED TO PRO SE PLAINTIFF AND E-MAILED(jpd )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
DAVID DEWALD, II,
Plaintiff,

CIVIL ACTION
NO. 16-04597

v.
CO JENKINS, et al.,
Defendants.

MEMORANDUM ORDER
AND NOW, this 5th day of February, 2018, upon consideration of Defendants’
motion to dismiss Plaintiff’s Amended Complaint, (ECF No. 26), it is hereby
ORDERED that the motion is DENIED.

In 2016, Dewald, pro se, filed a complaint asserting claims for: (1) excessive
force; (2) cruel and unusual punishment; (3) violations of his substantive due process
rights; and (4) violations of his procedural due process rights. (ECF No. 1.) The
Defendants filed a motion to dismiss, (ECF No. 14), which was granted in part and
denied in part. (ECF No. 23.) The excessive force and substantive due process claims
were dismissed without prejudice, and Dewald was granted leave to amend his
complaint. Dewald v. Jenkins, No. 16-04597, 2017 WL 1364673 (E.D. Pa. Apr. 13,
2017).
Dewald filed an Amended Complaint alleging cruel and unusual punishment and
violations of his procedural due process rights, repeating counts two and four of the
complaint that already survived the motion to dismiss. (ECF No. 24.) The Defendants

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filed a motion to dismiss the Amended Complaint, (ECF No. 26), and for the first time
in his response, Dewald asserts two claims against Warden Byrne and CEC, Inc. (ECF
No. 29.) Dewald alleges that Warden Byrne was personally involved in the alleged
wrongdoing and that CEC, Inc.’s official policy or custom caused the constitutional
violations. Dewald may not assert new claims or rely on new facts in response to a
motion to dismiss.1
Dewald may file a second amended complaint on or before March 5, 2018 that
contains all claims and allegations against all defendants, including claims of cruel and
unusual punishment, violations of procedural due process, and any claims he wishes to
assert against Warden Byrne and CEC, Inc.

BY THE COURT:

/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

See Gueson v. Feldman, No. 00-1117, 2002 WL 32308678, at *4 (E.D. Pa. Aug. 22, 2002) (“A
plaintiff may not raise new claims in response to a motion to dismiss”); Hammond v. City of
Philadelphia, No. 00-5082, 2001 WL 823637, at *2 (E.D. Pa. June 29, 2001) (“A party may not rely on
new facts in submissions in response to a motion to dismiss to defeat the motion”).
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