BARNES v. WARTZ et al

Filing 85

ORDER granting in part and denying in part 67 Motion to Dismiss for Failure to State a Claim; 84 Report and Recommendation is adopted as the opinion of this Court. It is further Ordered that, pursuant to Rule 4(a)(1) of the Federal Rules of Appe llate Procedure, if any party wishes to appeal from this Order a notice of appeal, as provided in Fed.R.App.P. 3, must be filed with the Clerk of Court within thirty (30) days, and as more fully stated in said Order. Signed by Judge Kim R. Gibson on 11/28/2016. (dlg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TONY S. BARNES,

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Plaintiff,

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V.

PAMELA WERTZ, PRIME CARE
MEDICAL, INC., MARC T. MASUCCI,
MICHAEL T. JOHNSON, OFFICER DRISH,
BLAIR COUNTY, BLAIR COUNTY
PRISON BOARD, JOHN DOES 1-3, and
JANE DOE,
Defendants.

Civil Action No. 15-134
Judge Kim R. Gibson
Chief Magistrate Judge Maureen P. Kelly

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Re: ECF No. 67

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ORDER

AND NOW, this

,28~ay of November, 2016, after Plaintiff Tony S. Barnes,

("Plaintiff') filed an action in the above-captioned case, and after a Motion to Dismiss was filed
by Defendants Michael T. Johnson, Officer Drish, Blair County and Blair County Prison Board,
ECF No. 67, and after a Report and Recommendation was filed by the United States Magistrate
Judge giving the parties until November 18, 2016, to file written objections thereto, and no
Objections having been filed, and upon independent review of the record, and upon consideration
of the Magistrate Judge's Report and Recommendation, ECF No. 84, which is adopted as the
opinion of this Court,
IT IS HEREBY ORDERED that the Motion to Dismiss, ECF No. 67 is DENIED as to
Count IV (Retaliation) against Officer Urish and GRANTED with respect to punitive damages against
Michael T. Johnson and Officer Urish in their official capacities and granted without prejudice with
respect to: (1) Count II (Deliberate Indifference) against Officer Urish; (2) Count III (Deliberate

Indifference) against Blair County and Blair County Prison Board; (3) Count IV (Retaliation) against
Michael T. Johnson; (4) Count VI (Policy and Custom) against Blair County, Blair County Prison
Board, Michael T. Johnson and Officer Urish.; (5) Count VII (Intentional Infliction of Emotional
Distress) IT IS FURTHER ORDERED that Plaintiff be permitted to file, within twenty (20) days of
the date of this Order, a Second Amended Complaint on the identified counts to specifically address
the deficiencies identified herein.
IT IS FURTHER ORDERED that, pursuant to Rule 4(a)(l) of the Federal Rules of
Appellate Procedure, if any party wishes to appeal from this Order a notice of appeal, as provided
in Fed. R. App. P. 3, must be filed with the Clerk of Court, United States District Court, at 700
Grant Street, Room 3110, Pittsburgh, PA 15219, within thirty (30) days.

Kim R. Gibson
United States District Judge

cc:

Honorable Maureen P. Kelly
Chief United States Magistrate Judge
Tony S. Barnes
2600 Southhampton Road
Philadelphia, PA 19116
All counsel ofrecord via CM-ECF

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