Talley v. PA Dept. of Corrections et al

Filing 26

ORDER (memorandum filed previously as separate docket entry); ADOPTING REPORT AND RECOMMENDATION 20 of Magistrate Judge Mehalchick; OVERRULING the 21 Pltf's objections; GRANTING in part/DENYING in part 14 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ; Directing pltf to file an Amended Complaint w/i 30 days reasserting remaining claims; and REFERRING to Magistrate Judge Karoline Mehalchick for further proceedings. Signed by Honorable James M. Munley on 3/2/18. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
QUINTEZ TALLEY,
Plaintiff
v.

:
No. 3:16cv2074
:
:
(Judge Munley)
:
(Magistrate Judge Mehalchick)
PA DEPT. OF CORRECTIONS, et al., :
Defendant
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
ORDER
AND NOW, to wit, this 2nd day of March 2018 it is HEREBY ORDERED as
follows:
1. Plaintiff’s objection to the Report and Recommendation (Doc. 21) is
OVERRULED;
2. The Report and Recommendation of Magistrate Judge Mehalchick (Doc.
20) is ADOPTED;
3. Defendants’ motion to dismiss (Doc. 14) is GRANTED in part and
DENIED in part;
4. All claims against the DOC under the Eighth and Fourteenth
Amendments are DISMISSED WITH PREJUDICE for failure to
state a claim pursuant to Fed. R. Civ. P. 12(b)(6);
5. The following claims are DISMISSED WITHOUT PREJUDICE for failure
to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) with LEAVE TO
AMEND:
a. All claims brought under 42 U.S.C. § 1983, either under the Eighth
Amendment, Fourteenth Amendment, or the ADA, against Dr.
Lincoln; and
b. All ADA claims against the DOC;

6. Plaintiff is ALLOWED TO PROCEED as to:
a. All Eighth Amendment claims asserted against Defendants Shaw,
Reiter, Balko, Wetzel, Ferguson, SEPD, Fagan, Ellenberger,
Salamon, Graham, Anstead, Link, Varner, and BHCS stemming
from their alleged deliberate indifference to a serious medical
need;
b. All Fourteenth Amendment supervisory liability claims against
Ellenberger, Wetzel, Fagans, and SEPD stemming from their
alleged lack of oversight of the inmate grievance system and
prison safety conditions;
c. Plaintiff’s conspiracy claims against the DOC Defendants under
42 U.S.C. § 1983;
7. Plaintiff has THIRTY (30) DAYS leave to file an amended complaint
that reasserts his remaining claims, including those allowed to proceed,
and those dismissed without prejudice, in accordance with Rule 8(d)(1)
of the Federal Rules of Civil Procedure and is complete in all aspects;
and
8. The matter is remanded to Magistrate Judge Mehalchick for further
proceedings.
BY THE COURT:

s/ James M. Munley_______
JUDGE JAMES M. MUNLEY
United States District Court

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