HOPKINS v. APADACA et al

Filing 72

MEMORANDUM ORDER: AND NOW, this 2nd Day of September, 2011; IT IS ORDERED that the DOC Defendants' partial motion to dismiss second amended complaint 38 shall be, and hereby is, GRANTED in part and DENIED in part as follows: (i) Said motion is GRANTED with respect to: (a) Plaintiff's Fourteenth Amendment Due Process claim against Defendant Apadaca premised upon Plaintiff's placement in the RHU; (b) Plaintiff's Eighth Amendment claims against Defendants Palmer, Riskus, and C aratelli premised upon alleged verbal harassment; (c) Plaintiff's Eighth Amendment against Defendants Barger and Apadaca premised upon alleged deliberate indifference claim to Plaintiff's serious medical needs; and (d) Plaintiff's Firs t Amendment claims against Defendants Barger and Apadaca premised upon the alleged violation of his religious rights. (ii) Said motion is DENIED with respect to: (a) Plaintiff's Eighth Amendment claim against Defendants Barger, Straziser, and Pa lmer premised upon their alleged refused to provide Plaintiff food; and (b) Plaintiff's Fourteenth Amendment due process claim against Defendants Barger and Straziser premised upon their alleged refusal to allow Plaintiff to attend P.R.C. and mi sconduct hearings. IT IS FURTHER ORDERED that the motion to dismiss or in the alternative for summary judgment filed by Defendant Dr. Jeffrey Moll 44 shall be, and hereby is, GRANTED. IT IS FURTHER ORDERED that Defendant Ireland's motion to dismiss the second amended complaint 50 shall be, and hereby is, GRANTED. IT IS FURTHER ORDERED that the motion to dismiss filed by Defendant Beverly O'Rourke, CRNP 60 shall be, and hereby is, GRANTED. Based upon the foregoing, IT IS FURTH ER ORDERED that Defendants Apadaca, Burkhart, Nicholson, Ireland, ORourke, Riskus, Caratelli, and Dr. Moll shall be terminated as parties to this case. IT IS FURTHER ORDERED, pursuant to the authority granted to federal courts in the Prison Litigati on Reform Act, that Plaintiff's claims against Defendants "John Doe Supervisor," Lt. Bock, and "Supervisor" shall be, and hereby are, DISMISSED due to Plaintiff's failure to service these Defendants in accordance with Ru le 4(m) of the Federal Rules of Civil Procedure and, accordingly, these Defendants shall likewise be terminated as parties to this case. The Report and Recommendation filed by Magistrate Judge Baxter on August 3, 2011 67 is adopted as the opinion of this Court. Signed by Judge Sean J. McLaughlin on 09/02/2011. (kas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
KENTLIN HOPKINS,
Plaintiff,
v.
LT. APADACA, et al.,
Defendants.

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Case No. 1:10-cv-166-SJM-SPB

MEMORANDUM ORDER
Plaintiff’s civil rights complaint was received by the Clerk of Court on July 9, 2010
and was referred to United States Magistrate Judge Susan Paradise Baxter for report
and recommendation in accordance with the Magistrates Act, 28 U.S.C. § 636(b)(1),
and Rules 72.1.3 and 72.1.4 of the Local Rules for Magistrates.
The Magistrate Judge's Report and Recommendation, filed on August 3, 2011
[67], recommends that:
1. The Doc Defendants’ partial motion to dismiss second amended complaint
[38] be granted in part and denied in part;
2. The motion to dismiss or in the alternative for summary judgment filed by
Defendant Dr. Jeffrey Moll [44] be granted;
3. Defendant Ireland’s motion to dismiss second amended complaint [50] be
granted; and
4. The motion to dismiss filed by Defendant Beverly O’Rourke, CRNP [60] be
granted; and
5. Plaintiff’s claims against Defendants John Doe Supervisor, Lt. Bock, and
“Supervisor” be dismissed, pursuant to the authority granted to courts under
the Prison Litigation Reform Act, due to Plaintiff’s failure to serve these
Defendants in accordance with Rule 4(m) of the Federal Rules of Civil
Procedure.
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Plaintiff was allowed fourteen (14) days from the date of service in which to file
objections. Service was made on Plaintiff by certified mail at SCI-Forest, where he is
incarcerated. No objections to the Report and Recommendation have been filed to
date. Although Plaintiff has filed a motion for leave to file a supplemental complaint, this
motion does not impact the recommendations set forth in the Magistrate Judge’s Report
and Recommendation of August 3, 2011. Accordingly, after de novo review of the
complaint and documents in the case, together with the Report and Recommendation,
the following order is entered:
AND NOW, this 2nd Day of September, 2011;
IT IS ORDERED that the DOC Defendants’ partial motion to dismiss
second amended complaint [38] shall be, and hereby is, GRANTED in part and DENIED
in part as follows:
(i)

Said motion is GRANTED with respect to: (a) Plaintiff’s Fourteenth
Amendment Due Process claim against Defendant Apadaca premised
upon Plaintiff’s placement in the RHU; (b) Plaintiff’s Eighth Amendment
claims against Defendants Palmer, Riskus, and Caratelli premised upon
alleged verbal harassment; (c) Plaintiff’s Eighth Amendment against
Defendants Barger and Apadaca premised upon alleged deliberate
indifference claim to Plaintiff’s serious medical needs; and (d) Plaintiff’s
First Amendment claims against Defendants Barger and Apadaca
premised upon the alleged violation of his religious rights.

(ii)

Said motion is DENIED with respect to: (a) Plaintiff’s Eighth Amendment
claim against Defendants Barger, Straziser, and Palmer premised upon
their alleged refused to provide Plaintiff food; and (b) Plaintiff’s Fourteenth
Amendment due process claim against Defendants Barger and Straziser
premised upon their alleged refusal to allow Plaintiff to attend P.R.C. and
misconduct hearings.

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IT IS FURTHER ORDERED that the motion to dismiss or in the alternative for
summary judgment filed by Defendant Dr. Jeffrey Moll [44] shall be, and hereby is,
GRANTED.
IT IS FURTHER ORDERED that Defendant Ireland’s motion to dismiss the
second amended complaint [50] shall be, and hereby is, GRANTED.
IT IS FURTHER ORDERED that the motion to dismiss filed by Defendant
Beverly O’Rourke, CRNP [60] shall be, and hereby is, GRANTED.
Based upon the foregoing, IT IS FURTHER ORDERED that Defendants
Apadaca, Burkhart, Nicholson, Ireland, O’Rourke, Riskus, Caratelli, and Dr. Moll shall
be terminated as parties to this case.
IT IS FURTHER ORDERED, pursuant to the authority granted to federal courts in
the Prison Litigation Reform Act, that Plaintiff’s claims against Defendants “John Doe
Supervisor,” Lt. Bock, and “Supervisor” shall be, and hereby are, DISMISSED due to
Plaintiff’s failure to service these Defendants in accordance with Rule 4(m) of the
Federal Rules of Civil Procedure and, accordingly, these Defendants shall likewise be
terminated as parties to this case.
The Report and Recommendation filed by Magistrate Judge Baxter on August 3,
2011 [67] is adopted as the opinion of this Court.
s/

Sean J. McLaughlin
SEAN J. McLAUGHLIN
United States District Judge

cm:

All parties of record
U.S. Magistrate Judge Susan Paradise Baxter
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