R.B. v. Hollibaugh et al

Filing 54

ORDER - IT IS ORDERED that the Court ADOPTS the R&R of MJ Mehalchick. The moving defts' 12 Motion to Dismiss for Failure to State a Claim is GRANTED IN PART and DENIED IN PART. The Clerk of Court is directed to TERMINATE Defendant Nurse Ronald from the caption of this action; The matter is remanded back to Magistrate Judge Mehalchick for further proceedings. 51 Signed by Honorable Yvette Kane on 2/17/2017. SEE ORDER. (sc)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
R.B.,
Plaintiff
v.

LISA HOLLIBAUGH, et al.,
Defendants

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No. 1:16-cv-1075
(Judge Kane)
(Magistrate Judge Mehalchick)

ORDER
Before the Court in the above-captioned action is the February 1, 2017 Report and
Recommendation of Magistrate Judge Mehalchick. (Doc. No. 51.) No timely objections have
been filed. ACCORDINGLY, on this 17th day of February 2017, upon independent review of
the record and the applicable law, IT IS ORDERED THAT:
1.

The Court adopts the Report and Recommendation of Magistrate Judge
Mehalchick (Doc. No. 51);

2.

The moving Defendants’ motion to dismiss Plaintiff’s complaint (Doc. No. 12), is
GRANTED IN PART AND DENIED IN PART, as set forth below:
a.

The following claims are DISMISSED WITH PREJUDICE:
(1)

(2)

Count X of Plaintiff’s complaint in its entirety for failure to state a
claim pursuant to Fed. R. Civ. P. 12(b)(6); and

(3)

b.

All federal law claims against Deputy Superintendent Whitesel and
Corrections Officer Oliver for failure to state a claim pursuant to
Fed. R. Civ. P. 12(b)(6);

All claims against the SCI-Smithfield Defendants and the SCIWaymart Defendants in their official capacities for lack of
jurisdiction pursuant to Fed. R. Civ. P. 12(b)(1);

The following claims are DISMISSED WITHOUT PREJUDICE:
(1)

Plaintiff’s supervisory liability claims against Superintendent
Gavin and Assistant to the Superintendent Vinansky for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6);

(2)

(3)

Plaintiff’s conspiracy claims brought under 42 U.S.C. § 1983 in
Counts IV and IX, as well as Plaintiff’s state law civil conspiracy
claim in Count XV, for failure to state a claim pursuant to Fed. R.
Civ. P. 12(b)(6); and

(4)

c.

Plaintiff’s Eighth Amendment claims against Corrections Officer
Abrashoff for deliberate indifference to a substantial risk of harm
and deliberate indifference to a serious medical need, under Counts
II and III of the complaint, for failure to state a claim pursuant to
Fed. R. Civ. P. 12(b)(6);

Plaintiff’s state law claims asserted against Assistant to the
Superintendent Hollibaugh, Superintendent Fisher, Deputy
Superintendent Whitesel, Corrections Officer Oliver, Corrections
Officer Lear, Corrections Officer Bard, Corrections Officer
Abrashoff, Superintendent Gavin, and Assistant to the
Superintendent Vinansky due to state sovereign immunity;

The motion to dismiss is DENIED in all other respects, and the remaining
claims in the complaint may proceed as alleged, including:
(1)

Plaintiff’s supervisory liability claims against Superintendent
Fisher and Assistant to the Superintendent Hollibaugh;

(2)

Plaintiff’s Fourteenth Amendment state-created danger claim and
Eighth Amendment deliberate indifference to a substantial risk of
harm claim against Corrections Officer Lear;

(3)

Plaintiff’s Eight Amendment deliberate indifference to a serious
medical need claim against Corrections Officer Bard;

(4)

Plaintiff’s claims against the Department of Corrections under the
ADA and the RA in Counts XI and XII of the complaint; and

(5)

Plaintiff’s state law claims asserted against Corrections Officers
Martin, Strasburger, James, Brodhead, and Stoney in Counts XIII
and XIV of the complaint;

3.

Plaintiff may file an amended complaint within thirty (30) days of the date of this
Order to replead the claims dismissed without prejudice identified above, in
accordance with Magistrate Judge Mehalchick’s Report and Recommendation;

4.

The Clerk of Court is directed to TERMINATE Defendant Nurse Ronald from
the caption of this action;

5.

The moving Defendants’ motion for a more definite statement (Doc. No. 12), is

DENIED; and
6.

The matter is remanded back to Magistrate Judge Mehalchick for further
proceedings.

s/ Yvette Kane
Yvette Kane, District Judge
United States District Court
Middle District of Pennsylvania