Opinion
4:21-CV-01354
06-01-2022
ISHMAEL A. BURK, Plaintiff, v. SUPERINTENDENT WAKEFIELD, et al., Defendants.
ORDER
Matthew W. Brann Chief United States District Judge
AND NOW, this 1st day of June 2022, in accordance with the accompanying Memorandum, IT IS HEREBY ORDERED that:
1. Defendants' motion (Doc. 12) to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) is GRANTED in part and DENIED in part, as follows:
a. Burk's Fourth Amendment claim is DISMISSED with prejudice.
b. Burk's First Amendment access-to-courts claim is DISMISSED without prejudice as to all Defendants.
c. Burk's First Amendment retaliation claim against defendant Cassol is DISMISSED without prejudice.
d. To the extent that Burk is asserting an Eighth Amendment conditions-of-confinement claim, said claim is DISMISSED without prejudice as to all Defendants.
e. Burk's Eighth Amendment claim of deliberate indifference to serious medical needs against defendant Smith is DISMISSED without prejudice.
f. Defendants' motion to dismiss is DENIED as to Burk's First Amendment retaliation claim against defendants Hann, Smith, Wakefield, and Grassmeyer.
g. Defendants' motion to dismiss is DENIED as to Burk's Eighth Amendment excessive force claim against Hann and Smith.
2. Burk, if desired, may file an amended complaint in conformity with the accompanying Memorandum within 21 days of the date of this Order, or on before June 22, 2022.
3. If no amended complaint is timely filed, this case will proceed on the following Section 1983 claims: (1) First Amendment retaliation against defendants Hann, Smith, Wakefield, and Grassmeyer; and (2) Eighth Amendment excessive force against Hann and Smith.