Gaines v. Cooper et al
MEMORANDUM OPINION and ORDER granting in part and denying in part re 10 MOTION to Dismiss filed by Gary Smith, John R Cooper; For reasons stated within the court DENIES the Defendants' Motion 10 , as it relates to the discriminat ory and retaliatory discharge claims, and the retaliation and claims based on the denial of Gaines' transfer and shift change request; The motion is GRANTED as to (1) Gaines' claim for the racially discriminatory denial of his shift change and transfer request, (2) the alleged retaliation claims, brought pursuant to the Fourteenth Amendment, (3)the retaliation claims against Cooper, for the denial of Gaines' shift change and transfer request, and (4) the claim for money damages, against the Defendants in their official capacity. Signed by Judge Abdul K Kallon on 12/5/2017. (KBB)
2017 Dec-05 AM 10:29
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
JOHN R. COOPER and GARY
Civil Action Number
MEMORANDUM OPINION AND ORDER
Timothy Gaines brings this civil rights action via 42 U.S.C. § 1983, against
his supervisors in the Alabama Department of Transportation (ALDOT), John
Cooper and Gary Smith (collectively the Defendants). Gaines seeks declaratory
and injunctive relief as well as money damages against the Defendants in their
official and individual capacities on the basis of unlawful racial discrimination and
retaliation in violation of 42 U.S.C. §1981 and the Fourteenth Amendment. The
Defendants have now moved to dismiss under Rules 12(b)(1) and 12(b)(6) of the
Federal Rules of Civil Procedure. Doc. 10. That motion is now adequately
briefed, docs. 10; and 16, and ripe for decision. After carefully reviewing the
complaint and the parties’ respective briefs, the court concludes the Defendants’
motion is due to be denied in part and granted in part.
STANDARD OF REVIEW
Typically, immunity issues are construed as challenges to the subject-matter
jurisdiction of a federal court properly raised under Rule 12(b)(1), at least where,
as here, the motion does not implicate the underlying merits of the case. See
Garrett v. Talladega Cty. Drug & Violent Crime Task Force, 983 F. Supp. 2d
1369, 1373 (N.D. Ala. 2013); Harris v. Bd. of Trs. Univ. of Ala., 846 F. Supp. 2d
1223, 1231 (N.D. Ala. 2012). A 12(b)(1) challenge may take the form of a facial
or factual attack on the complaint. See McElmurray v. Consol. Gov’t of AugustaRichmond Cty., 501 F.3d 1244, 1251 (11th Cir. 2007). A facial attack “‘require[s]
the court merely to look and see if [the] plaintiff has sufficiently alleged a basis of
subject matter jurisdiction, and the allegations in [her] complaint are taken as true
for the purposes of the motion.’” Id. (quoting Lawrence v. Dunbar, 919 F.2d 1525,
1529 (11th Cir. 1990)). On the other hand, a factual attack challenges “‘the
existence of subject matter jurisdiction in fact, irrespective of the pleadings, and
matters outside the pleadings . . . are considered.’” Id. (quoting Lawrence, 919
F.2d at 1529. In such an instance, the court may hear conflicting evidence and
decide the factual issues bearing on jurisdiction. Colonial Pipeline Co. v. Collins,
921 F.2d 1237, 1243 (11th Cir. 1991). Here, the Defendants do not present any
evidence beyond the pleadings for review, and the court construes their
jurisdictional challenge as facial.1
In addition to meeting this court’s jurisdictional requirements, Federal Rule
of Civil Procedure 8(a)(2) requires a pleading to contain “a short and plain
statement of the claim showing that the pleader is entitled to relief.” “[T]he
pleading standard Rule 8 announces does not require ‘detailed factual allegations,’
but it demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007)). Mere “‘labels and conclusions’” or “‘a
formulaic recitation of the elements of a cause of action’” are insufficient. Id.
(quoting Twombly, 550 U.S. at 555). “Nor does a complaint suffice if it tenders
‘naked assertion[s]’ devoid of ‘further factual enhancement.’”
Twombly, 550 U.S. at 557).
Federal Rule of Civil Procedure 12(b)(6) permits dismissal when a
complaint fails to comply with Rule 8(a)(2) or does not otherwise state a claim
upon which relief can be granted. When evaluating a motion under Rule 12(b)(6),
This ruling renders academic any debate regarding whether a motion to dismiss on Eleventh
Amendment grounds is properly brought under Rule 12(b)(1) or Rule 12(b)(6). In either case,
the procedural safeguards enjoyed by the plaintiff are the same. See, e.g., Lawrence v. Dunbar,
919 F.2d 1525, 1529 (11th Cir. 1990) (noting that a facial attack on jurisdiction under 12(b)(1)
and a motion to dismiss for failure to state a claim under 12(b)(6) both require the deciding court
to consider the allegations in the complaint as true); see also Fleming v. Va. State Univ., No.
3:15CV268, 2016 WL 927186, at *1 n.4 (E.D. Va. Mar. 4, 2016) (explaining that because the
same procedural protections are afforded under either approach “[t]he distinction makes no
the court accepts “the allegations in the complaint as true and construe[s] them in
the light most favorable to the plaintiff.” Hunt v. Aimco Props., L.P., 814 F.3d
1213, 1221 (11th Cir. 2016).
However, “[t]o survive a motion to dismiss, a
complaint must . . . ‘state a claim to relief that is plausible on its face.’” Iqbal, 556
U.S. at 678 (quoting Twombly, 550 U.S. at 570). A complaint states a facially
plausible claim for relief “when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is liable for the
The complaint must establish “more than a sheer
possibility that a defendant has acted unlawfully.” Id.; see also Twombly, 550 U.S.
at 555 (emphasizing that “[f]actual allegations [included in the complaint] must be
enough to raise a right to relief above the speculative level”). Ultimately, the line
between possibility and plausibility is a thin one making this determination a
“context-specific task that requires the reviewing court to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
Gaines worked for ALDOT as a rest area attendant under the supervision of
Gary Smith, the Director of ALDOT’s Oneonta Division, at the Interstate 59 rest
area in Ashville, Alabama for a little over four years. Doc. 1 at 2–3. During that
time, Gaines was never disciplined or notified of any unsatisfactory conduct. Id. at
3. In May 2014, Gaines wrote a letter to Smith’s supervisor in which Gaines
complained about his work hours and, more generally, about the treatment of
African-American employees in the workplace. Id. Approximately a month later,
Smith questioned Gaines, who is an African-American, regarding the letter,
purportedly informing Gaines that “he should not have [complained].” Id. at 2, 3.
Within a few weeks of this conversation, Smith denied Gaines’ request for a
transfer to an open permanent rest area attendant position. Id. at 3. Gaines also
requested shift changes during this time period which Smith uniformly denied. Id.
at 3–4. Within three months of Smith’s warning, ALDOT terminated Gaines,
purportedly because Gaines failed to obtain his commercial driver’s license (CDL)
in a timely manner. Id. at 3–4. However, the time ALDOT had previously given
Gaines to obtain his CDL had not expired when he was terminated. Id. at 4–5.
Moreover, Gaines claims that ALDOT transferred three similarly situated white
employees who also failed to obtain their CDL licenses instead of discharging
them. Id. at 5.
The Defendants’ motion relies on two arguments: (1) that, as state officials
sued in their official capacity, the Defendants are immune from suit pursuant to the
Eleventh Amendment; and alternatively, (2) that the Defendants are entitled to
qualified immunity because the complaint fails to adequately allege that they
violated any of Gaines’ clearly established rights. The court will address each
argument in turn.
A. Eleventh Amendment Immunity
It is well-settled that “state officials sued for damages in their official
capacity are immune from suit in federal court.” Jackson v. Ga. Dep’t of Transp.,
16 F.3d 1573, 1575 (11th Cir. 1994). It is equally well-settled, however, that “the
Eleventh Amendment does not protect state employees sued in their individual
capacity for employment-related acts.” Id. Moreover, the Supreme Court in Ex
parte Young, 209 U.S. 123 (1908), declared that “suit[s] alleging a violation of the
federal constitution against a state official in his official capacity for injunctive
relief on a prospective basis . . . [do] not violate the Eleventh Amendment.”
Grizzle v. Kemp, 634 F.3d 1314, 1319 (11th Cir. 2011). To determine whether a
suit falls within the Ex parte Young exception for prospective relief, “a court need
only conduct a ‘straightforward inquiry into whether [the] complaint alleges an
ongoing violation of federal law and seeks relief properly characterized as
prospective.’” Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645
(2002) (quoting Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 296 (1997)
(O’Connor, J., concurring)).
Here, although Gaines’ complaint is far from clear, the caption of the
document indicates that he is suing the Defendants in both their official and
individual capacities. Doc. 1 at 1. Thus, as Gaines concedes, to the extent his
complaint can be construed as seeking an award of money damages from the
Defendants in their official capacities, those claims are due to be dismissed. Doc.
16 at 5. However, Gaines’ claim for damages against the Defendants in their
individual capacities does not violate the Eleventh Amendment. See Cross v. Ala.
Dep’t of Mental Health & Mental Retardation, 49 F.3d 1490, 1503 (11th Cir.
1995). The other remedies Gaines seeks including reinstatement, a permanent
injunction against the Defendants’ alleged continuing violation of federal law, and
a declaration that the Defendants’ employment policies and practices violate
federal law all easily qualify as prospective. See Doc. 1 at 6. Accordingly,
Gaines’ requests for injunctive and declaratory relief fall within the Ex parte
Young exception and also avoid the immunity bar imposed by the Eleventh
Amendment. See Verizon Md., 535 U.S. at 645 (suit to enjoin enforcement of a
state official’s order in contravention of federal law qualified as prospective relief
for purposes of Ex parte Young); Summit Med. Assocs., P.C. v. Pryor, 180 F.3d
1326, 1337 (11th Cir. 1999) (the Eleventh Amendment “does not generally
prohibit suits seeking only prospective injunctive or declaratory relief”). In short,
the Eleventh Amendment bars only Gaines’ claim for monetary relief against the
Defendants in their official capacities.
B. Qualified Immunity
The defense of qualified immunity reflects both “the need to hold public
officials accountable when they exercise power irresponsibly and the need to shield
officials from harassment, distraction, and liability when they perform their duties
Pearson v. Callahan, 555 U.S. 223, 231 (2009).
“government officials performing discretionary functions are immune not just from
liability, but from suit, unless the conduct which is the basis for [the] suit violates
clearly established federal statutory or constitutional rights of which a reasonable
person would have known.” Sanders v. Howze, 177 F.3d 1245, 1249 (11th Cir.
1999). The term discretionary authority includes “all actions of a governmental
official that (1) ‘were undertaken pursuant to the performance of [her] duties,’ and
(2) were ‘within the scope of [her] authority.’” Jordan v. Doe, 38 F.3d 1559, 1566
(11th Cir. 1994) (quoting Rich v. Dollar, 841 F.2d 1558, 1564 (11th Cir. 1988)).
The parties agree that this threshold inquiry is satisfied here, and that the
Defendants were acting within their discretionary authority when they purportedly
took various discriminatory actions against Gaines. Docs. 10 at 6–7; 16 at 7.2
Therefore, “‘the burden shifts to [Gaines] to show that qualified immunity is
Vinyard v. Wilson, 311 F.3d 1340, 1346 (11th Cir. 2002)
The Defendants emphasize that because their employment decisions fell within the scope of
their discretionary authority they are entitled to qualified immunity, but this position
misconstrues the law. Acting within the scope of discretionary authority is necessary but not
sufficient to invoke the shield of qualified immunity.
(quoting Lee v. Ferraro, 284 F.3d 1188, 1194 (11th Cir. 2002)). To make this
showing, Gaines “must demonstrate . . . the following two things: (1) that the
defendant[s] violated [his] constitutional rights, and (2) that, at the time of the
violation, those rights were ‘clearly established . . . in light of the specific context
of the case, not as a broad general proposition.’” Gaines v. Wardynski, 871 F.3d
1203, 1208 (11th Cir. 2017) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001),
overruled, in part, on other grounds by Pearson v. Callahan, 555 U.S. 223 (2009)).
The court “may decide these issues in either order, but, to survive a qualifiedimmunity defense, [the plaintiff] must satisfy both showings.” Jones v. Fransen,
857 F.3d 843, 851 (11th Cir. 2017).
The Defendants do not argue that Gaines’ rights under § 1981 and the Equal
Protection Clause of the Fourteenth Amendment were not clearly established at the
time of the alleged violations. Thus, the court assumes without deciding, that
Gaines has satisfied the second prong of the qualified immunity inquiry, at least
with respect to his racial discrimination claims and his retaliation claims under §
However, because “no clearly established right exists under the equal
protection clause to be free from retaliation,” Ratliff v. DeKalb Cty., 62 F.3d 338,
340 (11th Cir. 1995), the Defendants are entitled to qualified immunity with
respect to Gaines’ retaliation claims brought pursuant to the Fourteenth
Amendment, and those claims are DISMISSED. See Lieu v. Bd. of Trs. of the
Univ. of Ala., No. 5:15-cv-02269, 2017 WL 2633402, at *3 (N.D. Ala. June 19,
2017) (finding that dismissal of a Fourteenth Amendment retaliation claim was
appropriate on qualified immunity grounds because no clearly established right to
be free from retaliation existed under that amendment).
Rather than focus on the nature of the rights at issue, the Defendants
primarily contend that Gaines’ complaint fails to show, as it must, a violation of
federal law in the first instance. In other words, the Defendants appear to argue
that the complaint does not plausibly allege the existence of a prima facie case of
racial discrimination or retaliation under either the Fourteenth Amendment or §
1981. The court will address each contention in turn.
1. Unlawful Termination Claims
The Defendants’ blanket attack on the complaint is unfounded as it relates to
Gaines’ claims arising from his discharge. First, as to both discharge-related
claims, there is no serious question that Gaines was subjected to an adverse job
action, termination. Further, Gaines, an African-American, belongs to a protected
class. Likewise the complaint satisfies the employment discrimination requirement
that Gaines was, in fact, qualified for his job by alleging that he “performed his job
duties and responsibilities in a more than satisfactory manner” and that he “had
never been disciplined during his employment with ALDOT.” Doc. 1 at 3. While
Gaines had not yet obtained his CDL, a requirement for his position, his time to do
so had purportedly not expired when he was discharged. Id. at 4–5. Significantly,
Gaines complaint also establishes the sine qua non of an employment
discrimination claim, disparate treatment, by alleging that ALDOT transferred
three white employees who had also failed to obtain their CDLs instead of
discharging them. Id. at 5. Accordingly, Gaines’ allegation that the Defendants
discharged him before the expiration of his deadline to obtain his CDL and treated
similarly situated white employees more favorably is sufficient to state a plausible
claim of intentional employment discrimination based on race, which is all Gaines
must do at this stage of the proceeding. See Swierkiewicz v. Sorema N.A., 534 U.S.
506, 515 (2002) (holding that a heightened pleading standard is not imposed on
employment discrimination suits under the Federal Rules).3
Likewise, Gaines has alleged sufficient facts to support his § 1981
retaliatory discharge claim. Specifically, Gaines’ complaint indicates he engaged
in protected activity when he allegedly wrote a letter to a supervisor complaining
“about treatment of African-American employees versus Caucasian employees.”
Id. at 3. While the complaint provides few specifics regarding the purportedly
discriminatory treatment referenced in Gaines’ letter, it does indicate that Gaines
Moreover, contrary to the Defendants’ contentions, Gaines’ allegations that Defendant Cooper
supervised him and participated in discharging him are sufficient to plausibly allege wrongdoing
on Cooper’s part. Doc. 1 at 4. While at some point Gaines will need to produce evidence
regarding both Defendants’ involvement in the discharge decision, his complaint has carried that
burden for now.
expressed concerned over the distribution of work hours, id., and it is well-settled
that § 1981 protects employees from discrimination based on race in the
employment context, including in the assignment of shifts and working hours. See,
e.g., Brown v. Bibb Cty. Props., LLC, 602 F. App’x 755, 757–58 (11th Cir. 2015).
Thus, Gaines has sufficiently alleged that he complained about discriminatory
conditions in the workplace and that he had an objectively reasonable belief that
assigning hours on the basis of race was illegal. That is more than sufficient at the
pleading stage for this court to find that Gaines’ written complaint to a supervisor
plausibly qualifies as protected activity.
As for whether the protected activity was “the but-for cause of the
challenged employment action,” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct.
2517, 2528 (2013), the complaint alleges that Smith, Gaines’ direct supervisor,
openly questioned Gaines regarding the letter, and, when Gaines admitted to
writing it, Smith purportedly told him that “he should not have done that.” Doc. 1
at 3. Gaines was terminated within, at the most, three months of that conversation.
Id. at 3–4. While a delay of three to four months is not enough to establish an
inference of retaliation standing alone, Thomas v. Cooper Lighting, Inc., 506 F.3d
1361, 1364 (11th Cir. 2007), Gaines has pleaded other factual allegations bearing
on his retaliation claims including: (1) his direct supervisor’s verbal warning; (2)
the fact that other similarly situated employees were not terminated; and (3) his
allegations of the denial of his shift and transfer and the pattern of other retaliatory
actions which occurred within weeks of his supervisor’s warning. Doc. 1 at 3–5.
Moreover, Gaines has alleged that both Defendants supervised him and
participated in the decision to terminate his employment. Id. at 4. At this stage,
these allegations are sufficient to create the plausible inference that both
Defendants, Gaines’ supervisors who made the decision to terminate him, were
aware of his protected conduct and discharged him in retaliation for engaging in
that conduct. That is all Gaines must plead for his claim of retaliatory discharge to
survive the Defendants’ motion.
2. Transfer and Job Assignment Claims4
The Defendants’ motion has some merit with respect to Gaines’ claims
arising out of the denial of his requests for a transfer and shift-changes.
Specifically, the complaint is currently silent as to whether these denials qualify as
adverse actions for purposes of stating a claim of employment discrimination on
the basis of race. First, although a showing of economic harm is not necessary for
an employment action to qualify as adverse, “an employee must show a serious
and material change in the terms, conditions, or privileges of employment.” Davis
v. Town of Lake Park, 245 F.3d 1232, 1239 (11th Cir. 2001). Moreover, “‘an
Gaines has admitted that his claims regarding the denial of his transfer and shift-change
requests implicate only Smith. Doc. 16 at 10. To the extent Gaines complaint could be read as
asserting these claims against Cooper as well, those allegations are DISMISSED
employment action . . . is not adverse merely because the employee dislikes it or
disagrees with it.’” Doe v. DeKalb Cty. Sch. Dist., 145 F.3d 1441, 1448 (11th Cir.
1998) (quoting Perryman v. West, 949 F. Supp. 815, 819 (M.D. Ala. 1996)).
Relevant here, “[a] [denial of] transfer can constitute an adverse employment
action . . . if [the transfer] involves an [increase] in pay, prestige, or responsibility.”
Hinson v. Clinch Cty., Ga. Bd. of Educ., 231 F.3d 821, 829 (11th Cir. 2000); see
also Hawkins v. BBVA Compass Bancshares, Inc., 613 F. App’x 831, 836–37 (11th
Cir. 2015) (finding that a failure to transfer the plaintiff to a position without
allegations of additional pay, prestige or responsibility was not “adverse”); Melton
v. Nat’l Dairy, LLC, 705 F. Supp. 2d 1303, 1324–25 (M.D. Ala. 2010) (same).
Gaines’ complaint provides no factual allegations regarding differing
responsibilities, or pay between his position, at the time, and the position he sought
a transfer to fill. Indeed, to the extent the complaint provides any facts regarding
the transfer, it indicates that it was a lateral move to a similar rest area attendant
position, albeit one Gaines describes as permanent. Doc. 1 at 2, 3–4.5 Similarly,
with respect to his request for a shift-change, Gaines has not alleged that the denial
of his request constituted a material change in his employment, and generally, a
mere shift-change, without more, is not sufficient to constitute adverse
employment action. See Gray v. Vestavia Hills Bd. of Educ., 317 F. App’x 898,
There is no allegation that the Gaines’ held with ALDOT was temporary.
904 (11th Cir. 2008). Gaines’ complaint simply does not contain any allegations
that would enable this court to draw an inference that the denial of either his shiftchange or his transfer request constituted an adverse employment action.
Moreover, Gaines has completely failed to plead the existence of disparate
treatment with respect to the denial of these requests.
His complaint simply
provides that he subjectively believes his transfer and shift-change requests were
denied “because of his race.” Doc. 1 at 3, 4. But, for this court to draw an
inference of racial discrimination, Gaines must, for example, also plead that his
employer “treated similarly situated employees outside [his] classification more
favorably,” Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir.
2003), or otherwise allege additional facts showing that discriminatory animus
factored into the decision to deny his requests. Here, Gaines’ complaint simply
fails to provide any basis to support his contention of racial animus. Therefore,
because Gaines has failed to plead adequate factual content to allow the court to
draw the plausible inference that discriminatory animus motivated the denial of his
transfer and shift change requests, rather than the alleged retaliatory intent he also
pleads, the motion to dismiss these claims is GRANTED, albeit without prejudice
As for the purportedly retaliatory denial of his request for a transfer and for
various shift-changes, it is also not obvious that Gaines suffered a sufficiently
adverse employment action. However, in the context of retaliation all that is
required to make a showing of material adversity is an action that “well might have
dissuaded a reasonable worker from making or supporting a charge of
discrimination.” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006) (quotation omitted); Crawford v. Carroll, 529 F.3d 961, 973 n.13 (11th Cir.
2008) (explaining that Burlington “strongly suggests that it is for a jury to decide
whether anything more than the most petty and trivial actions against an employee
should be considered ‘materially adverse.’”).
While, as discussed, Gaines’
complaint provides almost no information with respect to the nature of his requests
for a transfer and shift-change, at this stage, the court must construe these
allegations “in the light favorable to the plaintiff.” Mills v. Foremost Ins. Co., 511
F.3d 1300, 1303 (11th Cir. 2008) (quotation omitted). Accordingly, the fact that
these requests were made and denied is enough to create the plausible inference
that such conduct could deter a reasonable worker from seeking to raise similar
complaints of discrimination. That is enough to satisfy the adversity requirement.
Moreover, for the reasons discussed above, Gaines has provided specific
factual allegations linking the denial of his requests to the protected activity he
engaged in. As mentioned, his supervisor, Smith, questioned Gaines about his
letter complaining about racial discrimination, and stated that “he should not have”
written such a letter. Doc. 1 at 3. Gaines further alleges that Smith denied his
transfer request within weeks of their conversation regarding Gaines’ complaint.
Id. The Eleventh Circuit has previously found that “[a] period as long as one
month between a protected activity and an adverse action is not too protracted to
infer causation based on temporal proximity.” Faircloth v. Herkel Invs., Inc., 514
F. App’x 848, 852 (11th Cir. 2013). While it is true that Gaines submitted his
complaint months before his transfer and shift-change requests, the denial of those
requests, at least in part, took place within a few weeks of Smith’s discovery of
Gaines’ authorship of the document. Doc. at 3–4. Accordingly, at the pleading
stage, Gaines has provided enough evidence to support the plausible inference that
a desire to retaliate was the but-for cause of Smith’s decision to deny his requests
for a transfer and for shift-changes.
CONCLUSION AND ORDER
For the foregoing reasons, the court DENIES the Defendants’ motion, doc.
10, as it relates to the discriminatory and retaliatory discharge claims, and the §
1981 retaliation claims based on the denial of Gaines’ transfer and shift change
requests. The motion is GRANTED as to (1) Gaines’ claim for the racially
discriminatory denial of his shift change and transfer requests; (2) the alleged
retaliation claims, if any, brought pursuant to the Fourteenth Amendment; (3) the
retaliation claims against Cooper, if any, for the denial of Gaines’ shift change and
transfer requests; and (4) the claim for money damages, if any, against the
Defendants in their official capacity.
DONE the 5th day of December, 2017.
ABDUL K. KALLON
UNITED STATES DISTRICT JUDGE
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