Opinion
1:21-CV-1944
03-03-2023
TERRANCE TERRELL HOPSON, Plaintiff, v. HARRY ENTZ, et al. Defendants.
Schwab Magistrate Judge.
ORDER
Robert D. Mariani United States District Judge.
AND NOW, THIS 3th DAY OF MARCH, 2023, upon review of Magistrate Judge Susan Schwab's Report and Recommendation (“R&R”) (Doc. 39) for clear error or manifest injustice, IT IS HEREBY ORDERED THAT:
1. The R&R (Doc. 39) is ADOPTED for the reasons set forth therein, except as specifically modified herein in ¶ 4(d).
2. Defendants' Motion to Dismiss Plaintiff's Amended Complaint (Doc. 30) is GRANTED IN PART AND DENIED IN PART.
3. The following claims are DISMISSED WITHOUT PREJUDICE.
a. All Eighth Amendment claims against defendant Frey;
b. The Eighth Amendment claims against defendant Entz based on the alleged later assaults on October 2, 2021, by the non-defendant corrections officers;
c. All Eighth Amendment claims against defendant DeFrancesco;
d. All Eighth Amendment conditions-of-confinement claims;
e. All Fourteenth Amendment substantive due process claims;
f. All First Amendment claims;
g. All Fourth Amendment claims;
h. All Fifth Amendment claims;
i. All Sixth Amendment claims.
4. The following claims are NOT DISMISSED:
a. The Eighth Amendment excessive force claim against defendant Entz based on the first alleged assault on Hopson on October 2, 2021;
b. The Eighth Amendment excessive force claim against defendant Winner based on the October 27,2021 incident in I-pod;
c. The Eighth Amendment medical claim against defendant Lain based on Hopson not receiving his prescribed eye drops in December 2021;
d. All Eighth Amendment medical claims based on the time Hopson was confined in the MSMU in October 2021,
Although the R&R ultimately recommends dismissal of this claim by Plaintiff, upon review of the amended complaint, the Court finds that Plaintiffs factual allegations sufficiently, but barely, state an Eighth Amendment medical claim upon which relief can be granted against defendants based upon the time Plaintiff was confined in the MSMU in October 2021.
5. Plaintiff may file a Second Amended Complaint within 30 days of the date of this Order. Failure to file the amended complaint will result in this case proceeding based on Plaintiffs Amended Complaint (Doc. 25).
If filing a second amended complaint, Plaintiff is advised to follow Judge Schwab's direction as to what the complaint must include, set forth in footnote 20 of the Report and Recommendation (Doc. 39 at 45-46).
6. The case is REMANDED to Magistrate Judge Schwab for further proceedings consistent with this Order.