October 31, 2013
ADRIANNO CARETTE, ET AL.
R. BARCLAY SURRICK, J.
Presently before the Court is Defendant Adriano Carrete’s Motion to Dismiss (ECF No. 31), and Defendants Corrections Officers Stephany, Sowell, Joe Aquino, and Sergeant Verosky’s Partial Motion to Dismiss (ECF No. 37). For the following reasons, Defendants’ Motions will be denied.
A. Procedural History
Plaintiff Robert Scott applied for in forma pauperis status on October 12, 2010, which was granted on October 14, 2010. (ECF Nos. 1, 2.) Proceeding pro se, Plaintiff filed a Complaint on October 15, 2010. (ECF No. 3.) Plaintiff was then appointed counsel on November 4, 2011. (ECF No. 5.) Once represented by counsel, Plaintiff filed an Amended Complaint on November 6, 2012. (Am. Compl., ECF No. 29.) In the Amended Complaint, Plaintiff asserts three claims against Defendants. In Counts I and II, Plaintiff alleges violations of his Eighth Amendment right to be free from cruel and unusual punishment. He seeks relief under 42 U.S.C. § 1983. Specifically, Plaintiff alleges a claim for the use of malicious and sadistic excessive force (Count I) and a claim for failure and refusal to protect (Count II). In Count III, Plaintiff alleges a claim under Pennsylvania law for intentional infliction of emotional distress based upon extreme outrageous conduct.
On November 12, 2012, Defendant Corrections Officer Adriano Carrete (“CO Carrete”) filed a Motion to Dismiss the Amended Complaint for failure to state a claim. (CO Carrete’s Mot., ECF No. 31.) Plaintiff filed a response to CO Carrete’s Motion on December 3, 2012. (ECF No. 34.) On January 2, 2013, Defendants Corrections Officers Stephany, Sowell, Joe Aquino, and Sergeant Verosky (the “Commonwealth Defendants”) filed a Motion to Dismiss Count III of the Amended Complaint. (Commonwealth Defendants’ Mot., ECF No. 37.) Plaintiff filed his response to the Commonwealth Defendants’ Motion on January 25, 2013. (ECF No. 40.)
B. Factual History
Plaintiff is a 71 year-old male who was incarcerated at the State Correctional Institution at Graterford (“SCI Graterford”) from January 28, 2009 to February 17, 2009. (Am. Compl.