Opinion
CIVIL ACTION NUMBER 14-245-JWD-SCR
12-05-2014
STEVEN PAUL BURNS (#428006) v. EAST BATON ROUGE PARISH PRISON EMERGENCY MEDICAL SERVICES, ET AL
NOTICE
Please take notice that the attached Magistrate Judge's Report has been filed with the Clerk of the U. S. District Court.
In accordance with 28 U.S.C. § 636(b)(1), you have 14 days after being served with the attached report to file written objections to the proposed findings of fact, conclusions of law, and recommendations set forth therein. Failure to file written objections to the proposed findings, conclusions and recommendations within 14 days after being served will bar you, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the District Court.
ABSOLUTELY NO EXTENSION OF TIME SHALL BE GRANTED TO FILE WRITTEN OBJECTIONS TO THE MAGISTRATE JUDGE'S REPORT.
Baton Rouge, Louisiana, December 5, 2014.
/s/_________
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE
MAGISTRATE JUDGE'S REPORT
Before the court is the Plaintiff's Motion for Partial Summary Judgment, record document number 12, which is opposed, and the Rule 12(b)(6) Motion to Dismiss on Behalf of Vincent Leggio, DDS, record document number 20, which is also opposed.
Record document number 26. Plaintiff also filed a reply. Record document numbers 36, 38 and 39.
Record document number 46.
For the reasons which follow, the motions should be denied without prejudice.
I. Background
Pro se plaintiff, an inmate currently confined at Calcasieu Parish Correctional Center, Lake Charles, Louisiana, filed this action pursuant to 42 U.S.C. § 1983 against East Baton Rouge Parish Prison Emergency Medical Services, nurse Dachel Williams, Dr. Vincent Leggio (prison dentist) and Linda Ottesen (prison health care manager). Plaintiff alleged that the defendants were deliberately indifferent to his serious medical needs in violation of his constitutional rights.
On September 19, 2014, the plaintiff filed his amended complaint, titled Verified Complaint for Damages and Injunctive Relief. Although the parties are the same, the plaintiff expanded on the factual allegations and the causes of action against the defendants and asserted claims under the American with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.
Record document number 45.
Id. at 1.
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The parties' motions addressed the claims raised in the original complaint rather than those asserted in the amended Verified Complaint for Damages and Injunctive Relief. Therefore, both motions should be denied as moot, and without prejudice to the parties filing dispositive motions that specifically address the facts alleged and claims asserted in the amended complaint.
RECOMMENDATION
It is the recommendation of the magistrate judge that the Plaintiff's Motion for Partial Summary Judgment, record document number 12, and the Rule 12(b)(6) Motion to Dismiss on Behalf of Vincent Leggio, DDS, record document number 20, be denied without prejudice to the parties filing dispositive motions addressing the facts and claims asserted in the plaintiff's Verified Complaint for Damages and Injunctive Relief.
Baton Rouge, Louisiana, December 5, 2014.
/s/_________
STEPHEN C. RIEDLINGER
UNITED STATES MAGISTRATE JUDGE