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Povish v. Pennsylvania Department of Corrections

United States District Court, E.D. Pennsylvania

March 28, 2014

REVEREND ROBERT W. POVISH, Plaintiff,
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, JOHN E. WETZEL, in his official capacity as Secretary of the Pennsylvania Department of Corrections, MICHAEL WENEROWICZ, in both his official capacity as Superintendent of the State Correctional Institution at Graterford, and in his individual capacity, and MICHAEL ROMASCAVAGE, in both his official capacity as personnel officer of the State Correctional Institution at Graterford, and in his individual capacity, Defendants.

ORDER

JEFFREY L. SCHMEHL, District Judge.

AND NOW, this 28th day of March, 2014, upon consideration of Defendants' Motion to Dismiss for Failure to State a Claim (Docket #4), Plaintiff's response, and all supporting papers, it is hereby ORDERED that the motion is GRANTED IN PART AND DENIED IN PART as follows:

1. Count I is dismissed without prejudice, and Plaintiff may file an amended complaint within twenty days.
2. Count II is dismissed with prejudice as to the Department of Corrections; the official-capacity claims against Wetzel, Wenerowicz, and Romascavage are not dismissed, but will be limited as explained in the accompanying memorandum; the individual-capacity claims against Wenerowicz and Romascavage are not dismissed, but Plaintiff shall file an amended complaint within twenty days to better frame the qualified immunity issue.[1]
3. Count III is dismissed with prejudice as to the Department of Corrections, Wetzel, and Wenerowicz and Romascavage in their official capcities; the individual-capacity claims against Wenerowicz and Romascavage are not dismissed.
4. Count IV is dismissed with prejudice.
5. Count V is dismissed with prejudice.[2]

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