Free Order - District Court of Delaware - Delaware

Case 1:04-cv—01367-GMS Document 52 Filed 08/24/2006 Paget of2
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JULIAN A. MILLER, )
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Plaintiff, )
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v. ) Civil Action No. 04-1367-KAJ
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STANLEY TAYLOR, THOMAS )
CARROLL, DR. ALIE, and RN IHOMA, )
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Defendants. )
MEMORANDUM ORDER
Before me are the following motions: (1) State Defendants’ Joint Motion to
Dismiss Pursuant to Rules 12(b)(1) and 12(b)(6) ofthe Federal Rules of Civil
Procedure‘ (Docket Item ["D.I."] 22; the "Motion to Dismiss"); (2) Plaintiff Julian Mi|Ier’s
Motion for Leave to File a Second Amended Complaint (D.I. 39); (3) PIaintiff’s Motion
for Default Judgment Against Dr. Sitta B. Gombeh—A|ie (D.I. 38); (4) Plaintiff’s Motion to
Extend the Time to File an Affidavit of Merit (D.I. 42).
The first motion is contested. The other three, all of which are the PIaintiff’s, are
not.2 Accordingly, the PIaintiff’s motions are granted, and the Second Amended
Complaint is deemed filed as of today.
‘The "State Defendants" are Stanley Taylor, the Commissioner ofthe Delaware
Department of Correction, and Thomas Carroll, the Warden of the Delaware
Correctional Center at Smyrna, Delaware. (See D.|. 22 at 1.)
2Only the State Defendants have responded to the Plaintiffs three motions, and
they have noted that they do not oppose them. (D.I. 47.) Dr Alie, though he was
served (see D.I. 24; D.I. 38), has not answered or othewvise taken any position on
issues in the case. Nurse lhoma has, it appears, not been sewed and has made no
appearance. (See D.l. 25.)

Case 1:04-cv—01367-GMS Document 52 Filed 08/24/2006 Page 2 of 2
As to the Motion to Dismlss, it appears that arguments which it set forth are
addressed by the filing ofthe Second Amended Complaint. (Compare, e.g., D.I. 22 at
sec. |.A. with D.I. 39, Ex. B at ‘|j‘|j 70-71 and D.|. 40 at 2-3.) Although the State
Defendants may yet wish to press certain of their arguments, what those arguments
might be and how they would be framed in light of the allegations of the Second
Amended Complaint are matters as to which I can only speculate. Consequently, the
Motion to Dismlss is denied without prejudice.
Accordingly, it is hereby ORDERED that
(1) State Defendants’ Joint Motion to Dismlss Pursuant to Rules 12(b)(1)
and 12(b)(6) ofthe Federal Rules of Civil Procedure (D.I. 22) is DENIED without
prejudice;
(2) Plaintiffs Motion for Leave to File a Second Amended Complaint (D.I.
39) is GRANTED;
(3) PIaintiff’s Motion for Default Judgment Against Dr. Sitta B. Gombeh-
Alie (D.|. 38) is GRANTED; and
(4) PIaintiff’s Motion to Extend the Time to File an Affidavit of Merit (D.I.
42) is GRANTED, such that Plaintiff shall have until October 23, 2006 to file the
required affidavit.
2%; UE
U ITE STA {I TR JUDGE
Wilmington, Delaware if {-#’
August 24, 2006
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