United States District Court, M.D. Pennsylvania
FRANCIS A. LOMBARDO, Plaintiff
RYAN FLYNN, ET AL., Defendants
RICHARD P. CONABOY, District Judge.
This pro se civil rights action pursuant to 42 U.S.C. § 1983 was filed by Francis A. Lombardo (Plaintiff), an inmate presently confined at the Retreat State Correctional Institution, Hunlock Creek, Pennsylvania. Plaintiff's action regards events which purportedly transpired during his prior confinement at the Luzerne County Correctional Facility, Wilkes-Barre, Pennsylvania.
By Memorandum and Order dated August 21, 2013, Defendants' unopposed motion for partial dismissal was granted. See Doc. 29. Dismissal was granted in favor of Defendants Luzerne County, the Luzerne County Commissioners, and Major Larson. As a result of that disposition, the Remaining Defendants were three officials of the Luzerne County Prison: Warden Joseph Piazza; Sergeant Daniel Baluta; and Correctional Officer Ryan Flynn. Plaintiff's surviving allegations are his excessive force claims against Defendants Flynn and Baluta as well as a claim that Warden Piazza failed to protect Plaintiff's safety with respect to a November 22, 2011 attack by Flynn.
Thereafter, the Remaining Defendants filed an Answer to the surviving allegations. See Doc. 30. On September 11, 2013, Lombardo submitted a proposed Amended Complaint. See Doc. 35. The proposed Amended Complaint included claims against Major James Larson, who was previously granted entry of dismissal by the August 21, 2013 Memorandum and Order. It also raises additional civil rights allegations as well as claims under the Americans with Disabilities Act (ADA) and Pennsylvania state law.
Remaining Defendants and Major Larson have filed a motion to partially dismiss the Amended Complaint. See Doc. 45. The motion is ripe for consideration.
Federal Rule of Civil Procedure 15(a) provides:
(a) Amendments Before Trial.
(1) Amending as a matter of course. A party may amend its pleading once as a matter of course within:
(A) 21 days after serving it; or
(B) if the pleading is one to which a responsive pleading is required, 21 days after service of a responsive pleading or 21 days after service of a motion under Rule 12(b), (e), or (f), whichever is earlier.
Under Rule 15(a)(2) Lombardo may only amend his pleadings "with the opposing party's written consent or the court's leave." Remaining Defendants and Larson have indicated their consent via their the submission of a response to the amended complaint.
In light of the filing of a motion for partial dismissal of the amended complaint, the Defendants named therein will be presumed to have consented to the filing of the Amended Complaint. Second, it is well settled that pro se litigants are afforded liberal treatment under Haines v. Kerner , 404 U.S. 519, 520 (1972) and Rule 15(a)(2) provides that "[t]he court should freely give leave when justice so requires." Based upon those considerations, the proposed Amended Complaint (Doc. 35) will be accepted.
The Amended Complaint indicates that Lombardo is seeking relief under the Fourth, Fifth, Eighth, and Fourteenth Amendments. See Doc. 35, p. 1. Plaintiff also includes various pendent Pennsylvania state law tort claims as well as a claim under the Americans with Disabilities Act (ADA).
Specifically, the Amended Complaint asserts that during January 2010 and January, 2011, Lombardo submitted grievances to Warden Piazza and Major Larson requesting that he be kept separated from Defendant Flynn as well as other non-defendant correctional officers because those officials had allegedly assaulted him in December, 2009. See id. at ¶¶ 10-12. Plaintiff alleges that due to the failure of the Warden and ...