Opinion
Civil Action 22-3416
02-06-2023
LAMAR MARSHALL v. DELAWARE COUNTY, et al.
ORDER
SCOTT W. REID UNITED STATES MAGISTRATE JUDGE
AND NOW, this 6th day of February, 2023, upon consideration of Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint Pursuant to Rule 12(b)(6), docketed in this matter as ECF No. 33, and Plaintiff's response thereto, it is hereby ORDERED that the Motion is GRANTED IN PART and DENIED IN PART as specified below:
1. Marshall's failure to protect claim, as set forth in Count I of his Second Amended Complaint, is DISMISSED without prejudice to amend as to Defendants Byrne, McCreary, and Shuter, provided that Plaintiff is able to set forth factual matter alleging physical injury related to the failure to protect. Any amended complaint shall be filed on or before FEBRUARY 27, 2023. The failure to protect claim is DISMISSED with prejudice as to all other Defendants;
2. Marshall's conditions of confinement claim, as set forth in Count I of his Second Amended Complaint, is DISMISSED with prejudice as to all defendants; and
3. Count II of Marshall's Second Amended Complaint is DISMISSED with prejudice as to all defendants.