BUTLER v. SISSEM et al

Filing 109

ORDER granting 99 Motion to Dismiss for Failure to State a Claim. Based on Plaintiff's representation that he is not pursuing a due process or professional negligence claim, Defendant Boggio's Motion to Dismiss those claims is GRANTED. Plaintiff's deliberate indifference and retaliation claims against Boggio remain pending. Further, Plaintiff's Motion for Relief 104 is denied as moot. Signed by Magistrate Judge Richard A. Lanzillo on 11/12/2019. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JOHN BUTLER,
Plaintiff
v.
HOWARD SISSEM, et al.,

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Case No. 1:18-cv-141 Erie
RICHARD A. LANZILLO
UNITED STATES MAGISTRATE JUDGE
ORDER ON DEFENDANT’S PARTIAL
MOTION TO DISMISS [ECF No. 99];
PLAINTIFF’S MOTION
FOR RELIEF [ECF No. 104]

Presently pending before the Court is Defendant Jose Boggio’s partial motion to dismiss
for failure to state a claim [ECF No. 99] and Plaintiff John Butler’s motion for relief [ECF No.
104]. A telephonic hearing on the motions was held on November 7, 2019. ECF No. 107.
As discussed at the hearing, Butler’s complaint asserts two explicit claims against
Boggio: deliberate indifference to a serious medical need in violation of the Eighth Amendment
(Count One), and First Amendment retaliation (Count Two). Boggio filed an answer as to those
claims. However, Boggio also noted that certain allegations in Butler’s complaint hinted at the
possibility that Butler might be attempting to assert a Fourteenth Amendment due process claim
and/or a professional negligence claim. To the extent that this was Butler’s intent, Boggio
sought dismissal of those claims.
At the hearing, Butler, in response to several inquiries from the Court, explicitly
disavowed any intention to pursue either a due process or a professional negligence claim.
Although the Court offered Butler a thirty-day extension in which to consider whether to assert
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those claims, Butler reiterated, several times, that he only intended to pursue deliberate
indifference and retaliation claims against Boggio. Based on Butler’s representation, Boggio’s
motion to dismiss the perceived due process and professional negligence claims will be
GRANTED. Butler’s deliberate indifference and retaliation claims, on the other hand, are not
dismissed and will proceed to discovery.
Turning to Butler’s motion for relief, Butler asserts that he never received copies of
subpoenas served by Boggio for the purpose of obtaining various documents relative to his
defense. Butler requests an order directing Boggio to supply him with those documents. At the
hearing, Boggio’s counsel indicated that he had recently mailed everything he received in
response to the subpoenas at issue to Butler. Based on that averment, Butler’s motion for relief
is DENIED as moot, without prejudice. Butler may renew his motion if he does not receive
those documents in due course.
IT IS SO ORDERED.

/s/ Richard A. Lanzillo_______
RICHARD A. LANZILLO
United States Magistrate Judge
Dated: November 12, 2019

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