IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
May 13, 2010
ELAINE R. MCKISSICK, IN HER OWN RIGHT, AND AS ADMINISTRATRIX OF THE ESTATE OF TROY ALLEN COLE, PLAINTIFF
COUNTY OF YORK, ET AL., DEFENDANTS
The opinion of the court was delivered by: Christopher C. Conner United States District Judge
AND NOW, this 13th day of May, 2010, upon consideration of the report of the magistrate judge (Doc. 29), wherein the magistrate judge recommends that the motion (Doc. 12) to dismiss, filed by defendants County of York, York County Board of Inspectors (a/k/a York County Prison Board), and Mary E. Sabol, Warden, (collectively, the "York County defendants"), be denied,*fn1 and further recommends that the motion (Doc. 17) to dismiss, filed by defendants PrimeCare Medical, Inc., and the individually-named medical care providers*fn2 (collectively, the "medical defendants") be denied, and upon further consideration of the York County defendants' objections*fn3 (Docs. 32, 33) to the report and recommendation of the magistrate judge, wherein the York County defendants argue (1) that the complaint "fails to allege anything other than conclusory statements[,]" (Doc. 32 at 2)-in particular, that the claim under the Americans with Disabilities Act ("ADA") is not viable because McKissick "fails to allege that a reasonable accommodation request was made on the York County Defendants[,]"*fn4 (id.), (2) that the County of York should not remain a defendant in the above-captioned case,*fn5 and (3) that Warden Mary E. Sabol should not remain a defendant in the above-captioned case,*fn6 and upon further consideration of the medical defendants' objections (Docs. 30, 31) to the report and recommendation of the magistrate judge, wherein the medical defendants argue that the complaint fails to plead sufficient facts establishing a plausible claim under 42 U.S.C. § 1983 in two respects: (1) it fails to show that the medical defendants committed a constitutional violation, because the facts alleged do not demonstrate the medical defendants' deliberate indifference with respect to the decedent's medical care,*fn7 and (2) it fails to show that PrimeCare had a policy or custom which caused a constitutional violation,*fn8 it is hereby ORDERED that:
1. The report of the magistrate judge (Doc. 29) is ADOPTED as follows:
2. The motion (Doc. 12) to dismiss filed by the York County defendants is GRANTED in part and DENIED in part as follows:
a. The motion (Doc. 12) is GRANTED insofar as it seeks dismissal of the claim against the County of York. The Clerk of Court is directed to TERMINATE the County of York as a defendant in the above-captioned case.
b. The motion (Doc. 12) is GRANTED insofar as it seeks dismissal of the claim against Warden Mary E. Sabol. The Clerk of Court is directed to TERMINATE Warden Mary E. Sabol as a defendant in the above-captioned case.
3. The motion (Doc. 17) to dismiss filed by the medical defendants is DENIED.
4. The motion (Doc. 32) requesting that the court reject the magistrate judge's report and recommendation is DENIED.