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Marshal v. Lombardo
January 31, 2007
LAMONT J. MARSHAL, PLAINTIFF,
SAM LOMBARDO, WARDEN; JAMES MCCLOSKEY, DEPUTY WARDEN; DR. CATHY MOYER; MICHELLE WORMUTH, LPN; HONORABLE FREDRIC J. AMMERMAN, CHAIRMAN, CLEARFIELD COUNTY PRISON BOARD; MARK MCCRACKEN, COUNTY COMMISSIONER; MIKE LYTLE, COUNTY COMMISSIONER; REX READ, COUNTY COMMISSIONER; JR. WILLIAM A. SHAW, DISTRICT ATTORNEY; DON M. MCCLUSICK, DIRECTOR OF PROBATION; CHESTER HAWKINS, SHERIFF; AND CLAUDIA READ, CONTROLLER DEFENDANTS.
The opinion of the court was delivered by: Judge Kim R. Gibson
Magistrate Judge Lisa Pupo Lenihan
ORDER Plaintiff, Lamont J. Marshal, a prisoner at Clearfield County Prison, has submitted a complaint for filing in this district along with a motion to proceed in forma pauperis, which has been granted. His complaint alleges certain civil rights violations, including but not limited to an alleged violation, by certain medical personnel of the prison, of his rights pursuant to the 8th Amendment based upon their deliberate indifference to his medical needs. One of those defendants, Michelle Wormuth, LPN, has filed a Praecipe for Judgment of Non Pros pursuant to the Pennsylvania Rule of Civil Procedure 1042.6. This rule requires a certificate of merit to accompany any state court action alleging negligence via medical malpractice. Without arguing the applicability of the Pennsylvania Rules of Civil Procedure to a civil rights action pending before this federal court, the Court points out that Plaintiff is not accusing Ms. Wormuth of negligence, or of medical malpractice, but is, in fact, alleging a violation of his 8th amendment rights due to her deliberate indifference to his medical needs. There is no requirement that Plaintiff file a certificate of merit with this action. In response to Plaintiff's Motion to Strike the Praecipe, defendants allege that the allegations in Plaintiff's Complaint do not establish a violation of any constitutional right. That is the subject of a motion to dismiss, not a praecipe for non pros.
IT IS ORDERED, this 31 st day of January, 2007, that the Praecipe for Judgment of Non Pros is DENIED;
IT IS FURTHER ORDERED that the Motion to Strike the Praecipe is DENIED as moot;
AND IT IS FURTHER ORDERED that the parties are allowed ten (10) days from this date to appeal this order to a district judge pursuant to Local Rule 72.1.3 B. Failure to appeal within ten (10) days may constitute waiver of the right to appeal.
Lisa Pupo Lenihan U.S. Magistrate Judge
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