Johnson v. Dalton

Filing 134

AMENDED ORDER. The Recommendation of United States Magistrate Judge 105 is ACCEPTED. The Motion of Plaintiff Responding to Motion 105 108 is OVERRULED. Defendant's Motion to Dismiss 67 is GRANTED. Plaintiff's official-capacity claims are DISMISSED without prejudice. Plaintiff's individual-capacity claims are DISMISSED with prejudice. The case is closed, by Chief Judge Philip A. Brimmer on 1/7/21. (sgrim)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Chief Judge Philip A. Brimmer
Civil Action No. 20-cv-00435-PAB-MEH
JABARI J. JOHNSON,
Plaintiff,
v.
STEPHANIE DALTON,
Defendant.

AMENDED ORDER

This matter is before the Court on the Recommendation of United States
Magistrate Judge (the “recommendation”) [Docket No. 105] filed on October 2, 2020.
The recommendation addresses plaintiff Jabari J. Johnson’s complaint, Docket No. 1,
and recommends granting defendant Stephanie Dalton’s motion to dismiss pursuant to
Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Docket No. 67.
Plaintiff filed written objections to the recommendation in a filing titled “Motion of
Plaintiff Responding to Motion 105.” Docket No. 108. Because plaintiff is pro se, the
Court construes his filings liberally without serving as his advocate. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). T he Court has jurisdiction pursuant to
28 U.S.C. § 1331.

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I. BACKGROUND1
Plaintiff is an inmate incarcerated at the Colorado State Penitentiary (“CSP”) in
Cañon City, Colorado. Docket No. 1 at 2. Plaintiff alleges that, from August 21, 2018
to December 10, 2018, “HSA Ryder May refused the Plaintiff . . . a wheelchair” after
other individuals assaulted plaintiff. Id. at 4. Then, from December 21, 2018 to June
24, 2019, plaintiff was provided a wheelchair at CSP for cell use. Id. At Sterling
Correctional Facility (“SCF”), plaintiff was provided a wheelchair for cell use from June
24, 2019 to July 16, 2019. Id. However, “Valanos, Khaler, Booth & Cathi Herrera” took
plaintiff’s wheelchair on direction from Ryder May (“May”), and, from July 16, 2019 to
August 6, 2019, May deprived plaintiff of his wheelchair and “deprived [him] of rec,
shower, wheelchair for cell use and daily living.” Id. at 4–5.
Later, from August 6, 2019 to October 18, 2019, plaintif f was given a wheelchair
for cell use and daily living and an ADA shower at CSP. Id. at 5. However, on October
18, 2019, when plaintiff was transported to SCF, he was “attacked” by staff members
and, upon returning to CSP, he was not provided a wheelchair, but was made to “scoot
on the floor” from November 5, 2019 to November 8, 2019. Id. On November 8, 2019,
plaintiff “held his tray in order to speak to a [lieutenant] or captain about . . . not hav ing
his wheelchair.” Id. Plaintiff spoke with “LT Pruitt” (“Pruitt”) and showed Pruitt his
“medical slip[,] which is from HSA Stephanie Dalton,” “stating item wheelchair,
expiration date none.” Id. Plaintiff was then “given his wheelchair by Pruitt” on

1

The Court assumes that the allegations in plaintiff’s complaint are true in
considering the motion to dismiss. Brown v. Montoya, 662 F.3d 1152, 1162 (10th Cir.
2011).
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November 8, 2019; however, from November 15, 2019 to November 19, 2019, staff
“harassed the Plaintiff searching the Plaintiff’s wheelchair 3 times a day.” Id. On
November 19, 2019, Daniel Barbero and defendant “took the Plaintiff’s wheelchair[,]
stating he don’t get it.” Id.
While plaintiff was given his wheelchair “for court in Lincoln County” on
November 22, 2019, upon arriving back at CSP, his wheelchair was taken from him
again. Id. at 6. On December 4, 2019, plaintiff was removed from his ADA shower cell
and “knowingly and intentionally” placed in a non-ADA cell. Id. As such, plaintiff has
not been able to shower and has been deprived of his “ADA accomodations [sic] of
wheelchair and shower chair” from December 4, 2019 to the date that plaintif f filed his
complaint. Id. Plaintiff alleges that he has developed open sores on his body. Id.
Plaintiff asserts one claim against defendant, in her individual and official
capacities, under 28 U.S.C. § 1983 for violation of his Eighth Amendment rights. Id. at
2–4. He requests compensatory and punitive damages along with injunctive relief. Id.
at 7.
Defendant raises two grounds for dismissal. Docket No. 67 at 2–3. First,
defendant insists that plaintiff is barred from seeking monetary relief against defendant
in her official capacity under the Eleventh Amendment. Id. at 2. Second, defendant
argues that plaintiff has failed to state a claim for relief because plaintiff does not allege
defendant’s personal participation in any conduct that violated plaintiff’s constitutional
rights and, further, plaintiff has failed to allege facts that could satisfy the essential
elements of a claim for deliberate indifference. Id. at 2–3. As a result, defendant states

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that she is shielded from liability because of qualified immunity. Id. at 3.
Magistrate Judge Hegarty recommends defendant’s motion to dismiss be
granted. Docket No. 105 at 1. Plaintiff objected to the recommendation on October 16,
2020. Docket No. 108. Defendant responded to plaintiff’s objections on November 2,
2020. Docket No. 112. The Court construes Docket No. 69, filed on November 19,
2020 in Case No. 20-cv-00434, to be plaintiff’s reply in this matter. Docket No. 128.
II. LEGAL STANDARD
The Court must “determine de novo any part of the magistrate judge’s disposition
that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). An objection is “proper” if
it is both timely and specific. United States v. One Parcel of Real Prop. Know n as 2121
E. 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996). A specif ic objection “enables the
district judge to focus attention on those issues – factual and legal – that are at the
heart of the parties’ dispute.” Id.
In the absence of an objection, the district court may review a magistrate judge’s
recommendation under any standard it deems appropriate. See Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)
(“It does not appear that Congress intended to require district court review of a
magistrate’s factual or legal conclusions, under a de novo or any other standard, when
neither party objects to those findings.”). The Court therefore reviews the non-objected
to portions of the recommendation to confirm that there is “no clear error on the face of
the record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes. This standard of review
is something less than a “clearly erroneous or contrary to law” standard of review, Fed.

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R. Civ. P. 72(a), which in turn is less than a de novo review. Fed. R. Civ. P. 72(b).
Because plaintiff is proceeding pro se, the Court will construe his objections and
pleadings liberally without serving as his advocate. See Hall, 935 F.2d at 1110.
A. Lack of Subject Matter Jurisdiction
Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(1) is appropriate if
the Court lacks subject matter jurisdiction over claims for relief asserted in the
complaint. Rule 12(b)(1) challenges are generally presented in one of two forms: “[t]he
moving party may (1) facially attack the complaint’s allegations as to the existence of
subject matter jurisdiction, or (2) go beyond allegations contained in the complaint by
presenting evidence to challenge the factual basis upon which subject matter
jurisdiction rests.” Merrill Lynch Bus. Fin. Servs., Inc. v. Nudell, 363 F.3d 1072, 1074
(10th Cir. 2004) (quoting Maestas v. Lujan, 351 F.3d 1001, 1013 (10th Cir. 2003)).
When resolving a facial attack on the allegations of subject matter jurisdiction, the Court
“must accept the allegations in the complaint as true.” Holt v. United States, 46 F.3d
1000, 1002 (10th Cir. 1995). To the extent a defendant attacks the factual basis for
subject matter jurisdiction, the Court “may not presume the truthfulness of the factual
allegations in the complaint, but may consider evidence to resolve disputed
jurisdictional facts.” SK Finance SA v. La Plata County, 126 F.3d 1272, 1275 (10th Cir.
1997). “Reference to evidence outside the pleadings does not convert the motion to
dismiss into a motion for summary judgment in such circumstances.” Id. Ultimately,
and in either case, plaintiff has “[t]he burden of establishing subject matter jurisdiction”
because she is “the party asserting jurisdiction.” Port City Props. v. Union Pac. R.R.

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Co., 518 F.3d 1186, 1189 (10th Cir. 2008).
B. Failure to State a Claim
To survive a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure, a complaint must allege enough factual matter that, taken as true, makes
the plaintiff’s “claim to relief . . . plausible on its face.” Khalik v. United Air Lines, 671
F.3d 1188, 1190 (10th Cir. 2012) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “The ‘plausibility’ standard requires that relief must plausibly follow from the
facts alleged, not that the facts themselves be plausible.” RE/MAX, LLC v. Quicken
Loans Inc., 295 F. Supp. 3d 1163, 1168 (D. Colo. 2018) (citing Bryson v. Gonzales, 534
F.3d 1282, 1286 (10th Cir. 2008)). Generally, “[s]pecific facts are not necessary; the
statement need only ‘give the defendant fair notice of what the claim is and the grounds
upon which it rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) (quoting
Twombly, 550 U.S. at 555) (alterations omitted). However, a plaintiff still must provide
“supporting factual averments” with his allegations. Cory v. Allstate Insurance, 584
F.3d 1240, 1244 (10th Cir. 2009) (“[C]onclusory allegations without supporting factual
averments are insufficient to state a claim on which relief can be based.” (citation
omitted)); see also Moffet v. Halliburton Energy Servs., Inc., 291 F.3d 1227, 1231 (10th
Cir. 2002) (stating that a court “need not accept [] conclusory allegations”). “[W]here
the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not shown – that the pleader is
entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009) (quotations and
alterations omitted); see also Khalik, 671 F.3d at 1190 (“A plaintiff must nudge [his]

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claims across the line from conceivable to plausible in order to survive a motion to
dismiss.” (quoting Twombly, 550 U.S. at 570)). If a complaint’s allegations are “so
general that they encompass a wide swath of conduct, much of it innocent,” then
plaintiff has not stated a plausible claim. Khalik, 671 F.3d at 1191 (quotations omitted).
Thus, even though modern rules of pleading are somewhat forgiving, “a complaint still
must contain either direct or inferential allegations respecting all the material elements
necessary to sustain a recovery under some viable legal theory.” Bryson, 534 F.3d at
1286 (alterations omitted).
III. ANALYSIS
A. Lack of Subject Matter Jurisdiction – Sovereign Immunity
Magistrate Judge Hegarty recommends that plaintiff’s claim for damages against
defendant in her official capacity be dismissed. Docket No. 105 at 7. Specifically, the
magistrate judge concluded that plaintiff seeks $500,000 in punitive and $750,000 in
compensatory damages from defendant and is suing defendant in both her official and
individual capacities. Id. (citing Docket No. 1 at 2, 25). However, because defendant is
a state official, the Court must treat a suit against defendant in her official capacity as a
suit against the state itself. Docket No. 105 at 7 (citing Hafer v. Melo, 502 U.S. 21, 25
(1991) (“Suits against state officials in their official capacity . . . should be treated as
suits against the State.”)). The recommendation explains that, because the Eleventh
Amendment provides the state immunity from such suits, it also provides defendant
immunity, and the Court therefore lacks subject matter jurisdiction against defendant in
her official capacity. Id. (citing Fent v. Okla. Water Res. Bd., 235 F.3d 553, 559 (10th

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Cir. 2000) (Eleventh Amendment “immunity constitutes a bar to the exercise of federal
subject matter jurisdiction.”)). Indeed, “when an action is in essence one for the
recovery of money from the state, the state is the real, substantial party in interest and
is entitled to invoke its sovereign immunity from suit even though individual officials are
nominal defendants.” Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 277 (1977).
As such, the magistrate judge recommends that the motion to dismiss be granted with
respect to the damages claim against defendant in her official capacity. Docket No.
105 at 7.
In response to the recommendation, plaintiff states that he has “established and
proven jurisdiction under Rule 12(b)(1), in which the courts accept the plaintiffs [sic]
complaint as truthful under factual allegations” and that he has provided declarations in
support of his arguments. Docket No. 108 at 3. Plaintiff also states that, as discussed
below, the magistrate judge found that plaintiff satisfied the burden of proving the
objective component of his deliberate indifference claim and, therefore, his allegations
are not conclusory. Id. at 3. Plaintiff explains that he does not seek monetary damages
for his “suit in [defendant’s] official capacity,” but rather requests “injunctive relief
regarding a wheelchair request to be provided.” Id. at 7. “Yet,” plaintiff argues, he “is
seeking monetary relief of damages in the defendant’s individual capacity as the
Federal Rules of Civil Procedure allow.” Id.
Plaintiff’s objections do not contradict the magistrate judge’s conclusion that
subject matter jurisdiction must be determined “from the allegations of fact in the
complaint, without regard to mere [conclusory] allegations of jurisdiction,” Docket No.
105 at 3 (quoting Groundhog v. Keeler, 442 F.2d 674, 677 (10th Cir. 1971)), or facts
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submitted outside the complaint. Id. at 10. See Erikson v. BP Expl. & Prod. Inc., 567 F.
App’x 637, 639 (10th Cir. 2014) (holding that the district court did not err in “failing to
consider the materials” that a pro se litigant “attached to his response in opposition” to a
motion to dismiss). Furthermore, the affidavits that plaintiff has provided do not
establish jurisdiction, as plaintiff’s complaint still demands damages in an officialcapacity suit.
Plaintiff’s more substantive objection – that a plaintiff, in one suit, may seek an
injunction for official-capacity claims and damages for individual-capacity claims – also
does not contradict the magistrate judge’s conclusion that the Court does not have
subject matter jurisdiction to consider plaintiff’s official-capacity claims for damages.
The Court has reviewed the non-objected portions of the recommendation to
satisfy itself that there is “no clear error on the face of the record.” Fed. R. Civ. P.
72(b), Advisory Committee Notes. Based on this review, the Court concludes that this
portion of the recommendation is a correct application of the facts and the law.
Therefore, because plaintiff has not objected to the magistrate judge’s conclusion that
the Court does not have subject matter jurisdiction to consider official-capacity
damages claims, the Court accepts the magistrate judge’s recommendation that
plaintiff’s official-capacity damages claims be dismissed.
B. Failure to State a Claim – Qualified Immunity
The magistrate judge recommends granting defendant’s motion because plaintiff
has not sufficiently alleged a constitutional violation and, therefore, defendant is entitled
to qualified immunity. Docket No. 105 at 12. The magistrate judge concluded that
qualified immunity protects from litigation a public official whose possible violation of a
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plaintiff’s civil rights was not clearly a violation at the time of the official’s actions.
Docket No. 105 at 7 (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). To
overcome qualified immunity, a plaintiff must show that “(1) a reasonable jury could find
facts supporting a violation of a constitutional right, which (2) was clearly established at
the time of defendant’s conduct.” Id. at 7–8 (quoting Estate of Smart by Smart v. City of
Wichita, 951 F.3d 1161, 1169 (10th Cir. 2020)). Because plaintif f complained that
defendant violated his Eighth Amendment right against cruel and unsusal punishment
when she took away his wheelchair, the magistrate judge analyzed both the objective
and subjective components of plaintiff’s deliberate indifference claim, as deliberate
indifference “to serious medical needs of prisoners constitutes the ‘unnecessary and
wanton infliction of pain’ proscribed by the Eighth Amendment.” Estelle v. Gamble, 429
U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). To
establish deliberate indifference, a plaintiff must show that “the harm suffered is
sufficiently serious to implicate the Cruel and Unusual Punishment Clause.” Callahan
v. Poppell, 471 F.3d 1155, 1159 (10th Cir. 2006). T his is the objective component.2 A
plaintiff must also show that the defendant “knew [that the plaintiff] faced a substantial
risk of harm and disregarded that risk, by failing to take reasonable measures to abate
it.” Hunt v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999). This is the subjective

2

The magistrate judge found that plaintiff met his burden as to the objective
component and that plaintiff had established a link between defendant and his alleged
constitutional deprivation. Docket No. 105 at 8, 10. Plaintiff did not object to this
portion of the recommendation, and the Court finds “no clear error in the face of the
record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on this review, the
Court has concluded that this portion of the recommendation is a correct application of
the facts and the law.
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component.
The magistrate judge determined that plaintiff’s allegations “do not evince a
conscious disregard of risk to Plaintiff’s health.” Docket No. 105 at 11. The magistrate
judge concluded, therefore, that plaintiff “has not plausibly pleaded the subjective
component of a deliberate indifference claim.” Id. at 12. According to the magistrate
judge, plaintiff alleged that defendant “(1) . . . gave a medical slip to Pruitt, (2) took
Plaintiff’s wheelchair on November 19, 2019, and (3) knowingly and intentionally
deprive[d] . . . Plaintiff of care, and (4) knowingly and intentionally imede [sic] upon
Plaintiff[’]s access to the courts.” Id. (citing Docket No. 1 at 5–7). Plaintiff’s allegations
that defendant “knowingly and intentionally” deprived care are conclusory allegations
that the Court need not accept as true. Id. (citing Iqbal, 556 U.S. at 678). Therefore,
the magistrate judge concluded, “the Court could possibly find negligent action, but that
is insufficient to establish a claim.” Id. at 12 (citing Van Riper v. Wexford Health
Sources, Inc., 67 F. App’x 501, 504 (10th Cir. 2003) (“An inadvertent failure to provide
adequate medical care does not rise to the level of an unnecessary and wanton
infliction of pain.”)).
Plaintiff reiterates that defendant knew of the substantial risk and yet failed to
take reasonable measures to “abate” it. Docket No. 108 at 7. In support, plaintif f
explains that, because defendant “prescribed the wheelchair as permanent with an
expiration date of none,” she knew of the risks to plaintiff, yet she took away the
wheelchair before plaintiff could see a doctor. Docket No. 108 at 7. Plaintiff further
states that defendant took his wheelchair “in retaliation,” which “violates the subjective

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component of the 8th Amendment.” Id.3 Defendant responds that plaintiff has failed to
establish “Ms. Dalton’s subjective knowledge regarding Mr. Johnson’s need for a
wheelchair, or his medical condition generally, when she allegedly took his wheelchair,”
or “that she consciously disregarded [his needs] by taking the wheelchair.” Docket No.
112 at 2.
The Court finds that, contrary to her argument, defendant was clearly aware of
plaintiff’s need for a wheelchair, as she prescribed the wheelchair, and, when she took
it away, she disregarded this need. Defendant does not argue that this is a mere
disagreement over whether a wheelchair was the correct treatment for plaintiff’s
disability or that taking the wheelchair away was justified. See, e.g., Djonne v. Holst,
No. 08-cv-01146-LTB-KLM, 2009 WL 1765687, at *3 (D. Colo. June 22, 2009). Nor did
prison medical personnel determine that a wheelchair was not needed or would cause
more harm than good. See, e.g., Callahan, 471 F.3d at 1157. Plaintiff states that,
without a wheelchair, he has been forced to “scoot” and “crawl on his butt” around his
cell, has not been able to use his accessible shower, and has developed “open sores”
3

Plaintiff argues that taking away his wheelchair “depriv[ed] [him] of attorney and
legal visits, as Stephanie Dalton knowingly and intentionally imede [sic] upon [his]
access to the courts.” Docket No. 1 at 7. Defendant sought dismissal of any claim that
could be construed as a First Amendment violation. Docket No. 67 at 2. The
magistrate judge determined, however, that the Court “cannot take on the responsibility
of serving as the litigant’s attorney in constructing arguments.” Docket No. 105 at 5–6
n.2 (quoting Lucero v. Koncilja, 781 F. App’x 786, 788 (10th Cir. 2019)). Therefore,
because plaintiff did not address a First Amendment claim in response to the motion to
dismiss, the magistrate judge construed plaintiff’s silence as indicating that he is not
pursuing a First Amendment claim. Id. Plaintiff did not object to this portion of the
recommendation, and the Court finds “no clear error in the face of the record.” Fed. R.
Civ. P. 72(b), Advisory Committee Notes. Based on this review, the Court has
concluded that this portion of the recommendation is a correct application of the facts
and the law.
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on his “chest, back, stomach, arms[,] and shoulders.” Docket No. 1 at 6. Defendant
knew about plaintiff’s need for a wheelchair and presumably took his general medical
condition into account when she prescribed it. Further, because it was defendant who
both prescribed and took away the wheelchair, she knew of and yet disregarded the
risks to plaintiff’s health and safety by forcing him to make due without it. Plaintiff has
not, therefore, stated a claim for mere negligence, but rather has plausibly alleged that
defendant intentionally disregarded a risk that she was aware of.
However, plaintiff alleges that he developed these sores after his wheelchair was
taken from him on previous occasions. Id. at 5. Further, plaintiff alleges that defendant
took away his wheelchair on November 19, 2019 but that his wheelchair was returned
to him on November 22, 2019. Id. at 5–6. Plaintiff has not alleged that being without a
wheelchair from November 19 to 22 or having it taken away without a doctor’s visit rises
to the level of “unnecessary and wanton infliction of pain,” Docket No. 105 at 12
(quoting Van Riper, 67 F. App’x at 503), or that defendant caused his injuries. He has
not, therefore, alleged that defendant’s confiscation of his wheelchair for that period
violated the Eighth Amendment, and the Court will accordingly overrule his objection.
C. Leave to Amend
The general rule in this circuit is that, if “it is at all possible that the party against
whom the dismissal is directed can correct the defect in the pleading or state a claim for
relief, the court should dismiss with leave to amend.” Reynoldson v. Shillinger, 907
F.2d 124, 126 (10th Cir. 1990). This is particularly true where “deficiencies in a
complaint are attributable to oversights likely the result of an untutored pro se litigant’s

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ignorance of special pleading requirements.” Id. However, “[c]omplaints drafted by pro
se litigants . . . are not insulated from the rule that dismissal with prejudice is proper for
failure to state a claim when ‘it is obvious that the plaintiff cannot prevail on the facts he
has alleged and it would be futile to give him the opportunity to amend.’” Fleming v.
Coulter, 573 F. App’x 765, 769 (10th Cir. 2014) (quoting Perkins v. Kan. Dep’t of Corre.,
165 F.3d 803, 806 (10th Cir. 1999)).
The magistrate judge recommends dismissal with prejudice – that is, without
leave to amend – because the deficiencies in plaintiff’s complaint are not due to his
being an “untutored” litigant; rather, plaintiff states that he is “well educated [and]
experienced.” Docket No. 105 at 13 (citing Docket Nos. 28 at 1, 44 at 1, 96 at 1). T he
magistrate judge also explains that, from August 2017 to January 2020, plaintiff has
filed forty complaints in this district, indicating that he is familiar with how to plead an
Eighth Amendment claim. Id. Plaintiff’s deficiencies, therefore, are not attributable to
ignorance of special pleading requirements, and the magistrate judge recommends
dismissal on the merits. Id. (citing Stubblefield v. Henson, 989 F.2d 508, 1993 W L
55936, at *2 (10th Cir. 1993)).
Plaintiff explains that he has “no need to amend his complaint, yet has the right
to file a supplemental complaint” that includes additional violations that have occurred
since filing his complaint in this matter. Docket No. 108 at 9. This response is not an
objection to the magistrate judge’s recommendation. The Court has reviewed the nonobjected to portions of the recommendation to satisfy itself that there is “no clear error
on the face of the record.” Fed. R. Civ. P. 72(b), Advisory Committee Notes. Based on
this review, the Court has concluded that this portion of the recommendation is a
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correct application of the facts and the law, and the Court will dismiss plaintiff’s claims
with prejudice.
IV. CONCLUSION
It is therefore
ORDERED that the Recommendation of United States Magistrate Judge [Docket
105] is ACCEPTED. It is further
ORDERED that the Motion of Plaintiff Responding to Motion 105 [Docket No.
108] is OVERRULED. It is further
ORDERED that the Defendant’s Motion to Dismiss [Docket No. 67] is
GRANTED. It is further
ORDERED that the plaintiff’s official-capacity claims are DISMISSED without
prejudice. It is further
ORDERED that the plaintiff’s individual-capacity claims are DISMISSED with
prejudice. It is further
ORDERED that the case is closed.

DATED January 7, 2021.
BY THE COURT:

PHILIP A. BRIMMER
Chief United States District Judge

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