SHORT v. ADAMS et al

Filing 41

ORDER THAT DEFTS' MOTIONS TO DISMISS (ECF NOS. 21 & 24) ARE GRANTED IN PART AND DENIED IN PART. ANY CLAIM AGAINST THE GEO GROUP, INC., IS DISMISSED WITHOUT PREJUDICE; CHAPMAN'S AMENDED MOTION TO DISMISS, (ECF NO. 39) IS DENIED WITHOUT PREJUDICE; PLFF. MAY FILE A SECOND AMENDED COMPLAINT, CONSISTENT WITH THE ATTACHED MEMORANDUM, ON OR BEFORE 2/25/19.. SIGNED BY HONORABLE GERALD J. PAPPERT ON 1/25/19. 1/25/19 ENTERED AND COPIES MAILED TO PRO SE PLFF. AND E-MAILED TO COUNSEL.(pr, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
HARVEY PATRICK SHORT,
Plaintiff,

CIVIL ACTION
NO. 17-4544

v.
MS. ADAMS, et al.,
Defendants.
ORDER

AND NOW, this 25th day of January, 2019, upon consideration of Defendants’
Motions to Dismiss, (ECF Nos. 21 & 24), and Plaintiff’s Responses, (ECF Nos. 31 & 33),
it is hereby ORDERED that the Motions are GRANTED in part and DENIED in
part. Specifically:
1. Any claim against the GEO Group, Inc., is DISMISSED without prejudice;
2. Claims alleging deliberate indifference to serious dental needs against Brown
and Chapman are DISMISSED with prejudice and such claims against
Adams are DIMISSED without prejudice;
3. Claims alleging cruel and unusual punishment against Brown, Neil and
Chapman with respect to the delay in receiving medications are DISMISSED
with prejudice;
4. Claims alleging cruel and unusual punishment against Chapman and Brown
with respect to the toxic mold conditions are DISMISSED without prejudice;
5. Any claim against Neil for medical malpractice with respect to the denial of
dental care is DISMISSED with prejudice;

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6. Any claim against Neil for medical malpractice with respect to the delay in
dispensing medications is DISMISSED without prejudice;
7. Claims alleging intentional infliction of emotional distress, breach of contract,
interference with contract, breach of a fiduciary duty, fraud, private nuisance
and violation of a DOC policy against Neil are DISMISSED with prejudice.
8. The Motion to Dismiss filed by Adams, Brown, Neil and the GEO Group, (ECF
No. 23), is DENIED as moot.
9. Chapman’s Amended Motion to Dismiss, (ECF No. 39), is DENIED without
prejudice.1
10. Plaintiff may file a Second Amended Complaint, consistent with the attached
Memorandum, on or before February 25, 2019 with respect to the following:
a. Any claim against the GEO Group;
b. Any claim against Adams alleging deliberate indifference to serious
dental needs;
c. Claims against Chapman and Brown alleging cruel and unusual
punishment with respect to the toxic mold conditions and
d. Any claim against Neil with respect to medical malpractice for the delay
in dispensing medications.

Chapman argues that the Court should dismiss all claims against him without prejudice
because Short has three strikes under the Prison Litigation and Reform Act (PLRA) of 1996. (Mem.
Supp. Am. Mot. Dismiss at 1–2.) Chapman’s Motion exclusively cites to cases from other circuits. In
the Third Circuit’s most recent precedential opinion on the three strikes rule, the court evaluated its
own precedent, rather than the law of the circuit from which the potential strikes emanated, to hold
that the prisoner had not accrued three strikes. Brown v. Sage, 903 F.3d 300 (3d Cir. 2018). In
December of 2018, the Third Circuit granted the petition for a rehearing en banc in Brown. 910 F.3d
738 (3d Cir. 2018). Given that Chapman cites to no cases within the Third Circuit for Short’s three
strikes and the uncertainty of the three strikes rule following Brown, the Court declines to rule on
the Motion at this time.
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BY THE COURT:
/s/ Gerald J. Pappert
GERALD J. PAPPERT, J.

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