September 4, 2013
JAMES GERALD HOLMES
WARDEN ALGARIN, et al.
JUAN R. SNCHEZ, District Judge.
AND NOW, this 4th day of September, 2013, for the reasons set forth in the accompanying Memorandum, it is ORDERED the Motions to Dismiss filed by Defendants Warden Frey, Sergeant Berger, Correctional Officer Scullin, Social Worker Bucci, Lieutenant Bates, MCCF Board of Inspectors President McFarland, Lt. Appel, and Social Worker Ianozi, and Defendant PrimeCare, Inc. (Documents 11 & 13) are GRANTED. Holmes's § 1983 claims alleging failure to protect, denial of medical care, and retaliation are dismissed without prejudice. Holmes shall have until October 8, 2013, to file a second amended complaint as to these claims only, which corrects the deficiencies identified in the accompanying memorandum. Failure to file a second amended complaint within the above-referenced time permitted will result in dismissal of these claims with prejudice. Holmes's remaining § 1983 due process claims alleging a denial of the right to present witnesses at a disciplinary hearing, denial of the right to file a grievance, and delaying parole are dismissed with prejudice.
It is further ORDERED Holmes's Motion Not to Dismiss Plaintiff Complaint (Document 14) is DENIED as moot, this Court having construed the motion as a response in opposition to Defendants' motions to dismiss and having considered it in evaluating Defendants' motions.
It is further ORDERED Holmes's Motion for Appointment of Counsel (Document 15) is DENIED.