Castro v. City Of Chicago et al

Filing 193

ENTER MEMORANDUM OPINION AND ORDER: Plaintiff's motion for leave to amend 173 is denied. Defendant City of Chicago's motion 158 is denied as moot. This matter is set for status at 9:00 a.m. on October 16, 2013. Signed by the Honorable Robert M. Dow, Jr on 9/30/2013. Mailed notice(tbk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
ANTHONY CASTRO,
Plaintiff,
v.
CITY OF CHICAGO, et al.,
Defendants.

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Case No. 07 CV 931
Judge Robert M. Dow, Jr.

MEMORANDUM ORDER AND OPINION
Before the Court are Plaintiff’s amended motion for leave to file an amended complaint
[173] and Defendant City of Chicago’s motion to bifurcate § 1983 Monell claim against it and to
stay trial on that claim [158]. As explained more fully below, Plaintiff’s motion [173] is denied
and Defendant City of Chicago’s motion [158] is denied as moot. This matter is set for status at
9:00 a.m. on October 16, 2013.
I.

Background
On February 16, 2007, Plaintiff Anthony Castro filed a nine-count complaint [1] against

the City of Chicago (“the City”); four former Chicago Police Officers, Jerome Finnigan, Keith
Herrera, Carl Suchocki, and Thomas Sherry; Unknown Chicago Police Officers; and Cheryl
Hurley, as administrator of the estate of former Chicago Police Officer John Hurley. Plaintiff’s
complaint alleged that on July 27, 2004, the police officer Defendants illegally searched his
home, robbed him of approximately $12,000, arrested him on false charges of violating a city
ordinance, and threatened him with reprisal if he failed to comply with their future demands for
money, drugs, or names of other individuals they could rob. Plaintiff alleged that he was afraid
of what the officers were going to do to him when he was released from custody. Plaintiff

alleged that he was so afraid that he immediately began planning a move to Mississippi and in
fact moved there “within days” of his release from custody. Plaintiff returned to Chicago eleven
months later, after Hurricane Katrina struck Mississippi. The Cook County State’s Attorney’s
Office contacted Plaintiff upon his return to the city, and he participated in its investigation of
the police officer Defendants that eventually culminated in their arrests in late 2006. The
ordinance violation against Plaintiff was dismissed on February 23, 2006.
Defendants moved to dismiss as time-barred Plaintiff’s federal § 1983 claims. See [129]
& [131]. The Court granted the motions after concluding that neither equitable estoppel nor
equitable tolling operated to save Plaintiff’s untimely claims, which were filed some six months
after the lapse of Illinois’ applicable two-year statute of limitations.

See [169] at 7-14.

Specifically, the Court concluded that Plaintiff’s complaint did not allege that Defendants took
any active steps to stop Plaintiff from bringing a lawsuit above and beyond the wrongdoing that
formed the basis of Plaintiff’s claims. See id. at 7-11. The Court also concluded that even if
Plaintiff had alleged the requisite “above and beyond” conduct, his move to Mississippi more
than two years before he filed suit undermined the potency of the threats against him and
removed any barriers to suit. See id. at 13. The Court declined to exercise its supplemental
jurisdiction over Plaintiff’s state-law claims. See id. at 14-15. The Court granted Plaintiff
twenty-one days in which to cure the deficiencies in his complaint. See id. at 14, 16.
Plaintiff initially indicated his inclination to stand on his complaint and appeal the
Court’s dismissal of his claims. See [170]. He later had a change of heart and filed the instant
motion for leave to file an amended complaint [173]. Plaintiff’s proposed amended complaint
seeks to bolster Plaintiff’s allegations about the Defendant officers’ threatening behavior. See
[173-1]. He seeks to add allegations that Defendant Herrera coerced him to sign a consent-to-

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search form by telling him that if he declined he would “have problems”; that Defendant Herrera
threatened him that the officer Defendants would come back and “take care of him”; that
Defendant Herrera told him that the officer Defendants worked citywide, without supervision,
and could destroy his life; and that the other officer Defendants generally echoed these
comments “[t]hroughout the incident.”

[173-1] ¶¶ 79-86.

Plaintiff also proposes to add

allegations that he “felt kidnaped,” id. ¶ 71, was fearful that the officer Defendants would
physically harm him or his family, id. ¶ 89, that the officers’ “threats, combined with the
Defendants’ illegal conduct and apparent lack of fear of getting caught * * * made [him] fear for
his safety,” id. ¶ 90, and that the officer Defendants “promised to return and seemed capable of
anything.” id. ¶ 91. Plaintiff additionally seeks to expand his allegations regarding the police’s
interaction with his neighbor. In his original complaint, he alleged only that while he was
packing to move to Mississippi, “a neighbor told him that the police had come by the house
looking for him.” [1] ¶ 34. The proposed amended complaint identifies the neighbor as R.F.,
clarifies that R.F. “recognized the officers as the same officers that had taken Castro away in
handcuffs,” alleges that the officers had a picture of Plaintiff, and avers that “this subsequent
incident [] confirmed Castro’s decision to leave and to not return to Chicago.” [173-1] ¶¶ 94-98.
It further alleges that Castro was still fearful of Defendants when he returned to Chicago after
Hurricane Katrina and had to be “persuaded” by the State’s Attorney’s Office to participate in
their investigation. Id. ¶¶ 101-02. It also adds additional facts relating to three additional counts
Plaintiff seeks to add: a Fourth Amendment claim on behalf of his minor son, A.C.; a civil
conspiracy claim on behalf of A.C.; and a RICO claim against all Defendants. The proposed
amended complaint does not contain any state law claims and does not name any unknown
Defendants. See [173-1].

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Defendants contend that the Court should deny Plaintiff’s motion for leave to amend.
The officer Defendants argue that the additional facts alleged in the proposed amended
complaint are insufficient to support equitable estoppel. See [183] at 4-7. They also challenge
Plaintiff’s standing to assert claims on behalf of A.C. and the viability of the proposed RICO
claim. See id. at 7-14. The City adopts all of the officer Defendants’ arguments and further
contends that, as a matter of law, Plaintiff cannot state a RICO claim against the City or proceed
with his Monell claim. See [182] at 2-3.
II.

Legal Standard
Leave to amend a complaint should be freely given “when justice so requires.” Fed. R.

Civ. P. 15(a). “Although leave to amend should be freely given, that does not mean it must
always be given.” Hukic v. Aurora Loan Servs., 588 F.3d 420, 432 (7th Cir. 2009) (citation
omitted). “District courts have broad discretion to deny leave to amend where there is undue
delay, bad faith, dilatory motive, repeated failure to cure deficiencies, undue prejudice to the
defendants, or where the amendment would be futile.” Id. Proposed new claims are considered
futile if they would not withstand a motion to dismiss. Vargas-Harrison v. Racine Unified Sch.
Dist., 272 F.3d 964, 974 (7th Cir. 2001).
III.

Discussion
A.

Equitable Estoppel

Defendants contend that the facts alleged in the amended complaint fail to support
Plaintiff’s position that equitable estoppel should operate to permit his untimely § 1983 claims. 1
Thus, they contend, the proposed amendment would be futile because Plaintiff’s proposed
1

Although the parties previously argued in terms of both equitable estoppel and equitable tolling, and the
Court’s previous opinion addressed both doctrines, see [169], the parties at this stage cabin their dispute
to whether Defendants should be equitably estopped from asserting the statute of limitations defense. To
the extent that they have not abandoned their equitable tolling arguments, the Court for the same reasons
as stated in its earlier opinion concludes that equitable tolling is not applicable here.

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amended complaint establishes on its face that the claims are barred by the statute of limitations.
See Vargas-Harrison, 272 F.3d at 974; Indep. Trust Corp. v. Stewart Info. Servs. Corp., 665 F.3d
930, 935 (7th Cir. 2012) (“[W]hen a plaintiff’s complaint nonetheless sets out all of the elements
of an affirmative defense, dismissal under Rule 12(b)(6) is appropriate.”).
As the Court explained in its previous opinion, “equitable estoppel comes into play if the
defendant takes active steps to prevent the plaintiff from suing in time.” Shropshear v. Corp.
Counsel of City of Chi., 275 F.3d 593, 595 (7th Cir. 2001). It “prevents a party from asserting
the expiration of the statute of limitations as a defense when that party’s improper conduct has
induced the other into failing to file within the statutory period.” Ashafa v. City of Chi., 146 F.3d
459, 462 (7th Cir. 1999). Equitable estoppel “springs from basic considerations of fairness” and
“denotes efforts by the defendant, above and beyond the wrongdoing upon which the plaintiff’s
claim is founded, to prevent, by fraud or deception, the plaintiff from suing in time.” Mitchell v.
Donchin, 286 F.3d 447, 450 (7th Cir. 2002) (quotations omitted). “Any deliberate or otherwise
blameworthy conduct by the defendant that causes the plaintiff to miss the statutory deadline can
be the basis for a defense of equitable estoppel in federal limitations law,” which governs even in
cases such as this in which this Court “borrows” the statute of limitations from state law.
Shropshear, 275 F.3d at 597-98.
Equitable estoppel is a broad equitable remedy, but it is not boundless. The Seventh
Circuit has emphasized that equitable estoppel cannot apply unless there is a causal link between
the conduct alleged as the basis for the estoppel and the plaintiff’s delay in filing suit. See, e.g.,
Barry Aviation Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 689 (7th Cir. 2004);
Flight Attendants Against UAL Offset (FAAUO) v. Comm’r, 165 F.3d 572, 577 (7th Cir. 1999)
(“It is implicit in the doctrine that the conduct alleged as the basis for the estoppel have been the

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cause of the plaintiff’s not suing in time.”). Similarly, a plaintiff seeking the benefit of equitable
estoppel must demonstrate that he actually and reasonably relied upon the defendant’s improper
conduct. Smith v. Potter, 445 F.3d 1000, 1010 (7th Cir. 2006), overruled in part on other
grounds by Hill v. Tangherlini, 724 F.3d 965, 967 n.1 (7th Cir. 2013); Hentosh v. Herman M.
Finch Univ. of Health Sciences/The Chi. Med. Sch., 167 F.3d 1170, 1174 (7th Cir. 1999); Ashafa,
146 F.3d at 463. Even where both blameworthy conduct and causality are present, “the filing of
the suit cannot be delayed indefinitely”; the plaintiff must file suit promptly “once the
circumstance giving rise to the estoppel is removed.” Shropshear, 275 F.3d at 597.
Plaintiff argues that equitable estoppel should apply here because his proposed amended
complaint alleges improper conduct by the officer Defendants that goes above and beyond the
elements of the causes of action he seeks to assert.

He contends that “[t]o prove an

unconstitutional search, Plaintiff must only show * * * that the police entered his home without a
search warrant or other legal justification. * * * Plaintiff’s proposed amended complaint alleges
additional facts to show that the Defendants intimidated Plaintiff so he would keep quiet about
the search and false arrest.” [188] at 2.
Even assuming that Plaintiff is correct on this point and that his supplemental allegations
about the officer Defendants’ return to his apartment and interaction with his neighbor satisfy the
requirement that he plead conduct “above and beyond” that which forms the basis of his claims,
Plaintiff has not demonstrated (1) that he reasonably relied on the officer Defendants’ conduct
and representations or (2) that he acted promptly to file suit once the threats against him abated.
The Court does not take lightly Plaintiff’s allegations that he was so fearful of the officer
Defendants that he moved to Mississippi. The fact that some of these Defendants have been

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convicted for their wrongful conduct 2 demonstrates that his fear of reprisal was not unfounded.
Nonetheless, Plaintiff’s move to a location several hundred miles from the officer Defendants at
a minimum significantly diminished the reasonableness of any continued fear of harassment by
the officer Defendants. While it would be unfair to place upon plaintiffs an affirmative burden to
mitigate the effects of blameworthy conduct by defendants, so too would it be inequitable to
permit plaintiffs who do eliminate the effect of defendants’ conduct either by their own efforts or
purely circumstantial happenstance to delay suit indefinitely. See Shropshear, 275 F.3d at 597.
Plaintiff suggests that “[f]iling a lawsuit would provide the Defendants the motive and
opportunity to carry out their threat to ‘destroy his life’ if he made a report or told anyone about
the incident,” [188] at 3, but lawsuits may be filed anonymously when the potential harm to a
plaintiff in proceeding under his own name exceeds the likely harm to the defendants and the
general public if the plaintiff proceeds anonymously. See, e.g., Doe v. City of Chi., 360 F.3d
667, 669 (7th Cir. 2004). Indeed, “[t]he danger of retaliation is often a compelling ground for
allowing a party to litigate anonymously.” Id. Additionally, there is no reason that Plaintiff
would have had to disclose his whereabouts to timely pursue his federal claims against the
officer Defendants. So long as venue is proper and diversity is not the sole basis for jurisdiction
(which it is not here), plaintiff’s physical location is of minimal importance to the prosecution of
a lawsuit. Notably, the Seventh Circuit squarely has held in the employment law context that “a
threat to retaliate is not a basis for equitable estoppel,” in large part because Title VII provides a
cause of action to deter such retaliation. Beckel v. Wal-Mart Assocs., Inc., 301 F.3d 621, 624
(7th Cir. 2002). Here, too, Plaintiff had a legal remedy in the event that the officers retaliated
against him for filing suit: a First Amendment claim for retaliation. See, e.g., Bivens v. Trent,
2

Defendants Finnigan and Herrera were convicted of federal felony offenses related to their official
misconduct. See United States v. Finnigan et al., No. 07-cr-634-1 (N.D. Ill.) (Finnigan) and No. 07-cr634-2 (N.D. Ill.) (Herrera).

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591 F.3d 555, 559 (7th Cir. 2009). “To allow the use of retaliation as a basis for extending the
statute of limitations would not only distort the doctrine of equitable estoppel but circumvent the
limitations * * * impose[d] on suits for retaliation, which the plaintiff’s argument implies never
runs” in cases alleging particularly egregious conduct. Beckel, 301 F.3d at 624; cf. Ramirez v.
City of Chi., 2009 WL 1904416, at *5 (N.D. Ill. July 1, 2009) (reasoning that if a general fear of
police reprisal were sufficient to give rise to equitable tolling, the statute of limitations on § 1983
claims would be all but vitiated).
Other allegations in the proposed amended complaint also undermine Plaintiff’s
assertions as to the pervasiveness of his fears. First, he alleges that he returned to Chicago less
than a year after the incident rather than relocating elsewhere – and did so sufficiently openly
and notoriously that the State’s Attorney’s Office was able to contact him upon his return. He
does not allege, however, that the officer Defendants reiterated their threats against him or
otherwise took any active steps beyond those contemporaneous with his arrest to prevent him
from asserting his claims promptly upon his return.

Second, Plaintiff aided the State’s

Attorney’s Office’s investigation of the officer Defendants. Plaintiff alleges that the State’s
Attorney’s Office “assured [him that] the officers would eventually be going to jail and could not
come after him.” [173-1] ¶ 103. Notwithstanding these assurances, Plaintiff delayed filing suit
for nearly a year and a half after he returned, for nearly a year after the dismissal of the false
charges against him, and for several months after the officer Defendants were indicted and in
custody. See [173-1] ¶ 9. Plaintiff’s actions do not comport with his allegations that he actually
and reasonably believed that the officer Defendants’ conduct prevented him from timely filing
suit.
Like the original complaint, Plaintiff’s proposed amended complaint on its face

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establishes that Plaintiff’s § 1983 claims are untimely and cannot withstand a motion to dismiss
on statute of limitations grounds. The conduct that Plaintiff alleges is egregious, but “the Court
may not extend the limitations period or distort the law of * * * estoppel on the basis of its (or
anyone else’s) notions of rough justice or just desserts.” [169] at 14.
B.

Proposed New Claims

Plaintiff’s proposed amended complaint seeks to assert three new claims that Plaintiff has
not raised previously: (1) a civil RICO claim, (2) a § 1983 claim alleging illegal search on
behalf of his minor son, A.C., and (3) a § 1983 claim alleging civil conspiracy on behalf of A.C.
“Plaintiff concedes that if the Court rules his original complaint was not timely filed, then his
additional RICO count cannot be saved by relation back.” [188] at 10. Indeed, for a plaintiff to
benefit from the relation back provisions of Federal Rule of Civil Procedure 15(c), “the original
complaint must have been timely filed.” Henderson v. Bolanda, 253 F.3d 928, 931 (7th Cir.
2001); see also Williams v. Lampe, 399 F.3d 867, 870 (7th Cir. 2005) (same). Because that is not
the case here, Plaintiff’s RICO claim, which has a four-year statute of limitations, see Jay E.
Hayden Found. v. First Neighbor Bank, N.A., 610 F.3d 382, 383 (7th Cir. 2010), cannot be saved
by the relation back doctrine.
Plaintiff does not make the same concession as to the claims he seeks to assert on behalf
of A.C. Nor do Defendants argue that these claims are barred by the statute of limitations or
cannot relate back. This may be because the parties recognize the possibility that the statute of
limitations as to A.C.’s claims may be tolled due to his minority. State law tolling provisions
apply in § 1983 suits, Ray v. Maher, 662 F.3d 770, 773-74 (7th Cir. 2011), and Illinois has a
statutory provision that tolls the relevant statute of limitations for minors until two years after
they attain the age of 18. See 735 ILCS 5/13-211. A.C. “was about two years old,” [188] at 5,

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during the July 27, 2004 raid of Plaintiff’s home, which means he is at most eleven years old
now. He is thus still a minor for whom the statute of limitations period is tolled.
Defendants argue that the claims Plaintiff seeks to assert on A.C.’s behalf nonetheless
must be dismissed because A.C. lacks standing to bring the claims. See [183] at 7-9. They
contend that A.C., a toddler at the time of the allegedly illegal search, could not possibly have
had an expectation of privacy in his home. See id. at 8. Plaintiff responds that “[t]here is no age
requirement for constitutional rights.” [188] at 5.
The Fourth Amendment protects “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV.
“It is axiomatic that the physical entry of the home is the chief evil against which the wording of
the Fourth Amendment is directed.” Fitzgerald v. Santoro, 707 F.3d 725, 730 (7th Cir. 2013)
(quoting Welsh v. Wisconsin, 466 U.S. 740, 748 (1984)). Nonetheless, “a Fourth Amendment
search does not occur – even when the explicitly protected location of a house is concerned –
unless ‘the individual manifested a subjective expectation of privacy in the object of the
challenged search,’ and ‘society [is] willing to recognize that expectation as reasonable.’” Kyllo
v. United States, 533 U.S. 27, 33 (2001) (quoting California v. Ciraolo, 476 U.S. 207, 211
(1986)); see also California v. Greenwood, 486 U.S. 35, 39 (1988) (“The warrantless search and
seizure of the garbage bags left at the curb outside the Greenwood house would violate the
Fourth Amendment only if respondents manifested a subjective expectation of privacy in their
garbage that society accepts as objectively reasonable.”).

“[T]here is ‘no talisman that

determines in all cases those privacy expectations that society is prepared to accept as
reasonable.’” Am. Civil Liberties Union of Ill. v. Alvarez, 679 F.3d 583, 605 (7th Cir. 2012)
(quoting O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (plurality opinion)).

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Here, Plaintiff alleges that A.C., then a toddler, lived in the premises that were illegally
searched and was present at the time of the search. [173-1] ¶¶ 11, 24. A.C. was present when
the officer Defendants handcuffed Plaintiff and began to cry and became “hysterical” when the
officer Defendants pointed their guns at Plaintiff and threatened to shoot the family dog. Id. ¶¶
35-38. After Plaintiff’s handcuffs were removed, A.C. ran into Plaintiff’s arms. Id. ¶ 40.
Plaintiff’s girlfriend – A.C.’s mother – held and comforted A.C. when the officer Defendants
removed Plaintiff from the premises. Id. ¶ 41. A.C. later moved with Plaintiff to Mississippi.
See id. ¶ 99.
The first question the Court must ask is whether A.C. “manifested a subjective
expectation of privacy in the object of the challenged search” – his home. The allegations in the
proposed amended complaint do not demonstrate that A.C. did. Although it is established that
the parents’ expectations of privacy are the appropriate consideration when the child himself is
the subject of the challenged search or seizure, see Michael C. v. Gresbach, 526 F.3d 1008,
1014-15 (7th Cir. 2008), Doe v. Heck, 327 F.3d 492, 511-12 (7th Cir. 2003), Plaintiff does not
allege that A.C.’s person was searched or indeed even acknowledged by the officer Defendants.
The object of the search was the home and other parts of the building, not A.C.’s person or even
his belongings. Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999), and Franz v. Lytle, 997 F.2d
784 (10th Cir. 1993), on which Plaintiff relies, are distinguishable on that basis. In Calabretta,
the defendants entered a home without a warrant and demanded that a mother remove her threeyear-old daughter’s pants so they could visually inspect the girl for bruises. See Calabretta, 189
F.3d at 811-12. And in Franz, the defendants entered a home without a warrant, demanded that
a mother remove her two-year-old daughter’s diaper, and then touched the girl’s genital area.
See Franz, 997 F.2d at 785. In both cases, the searches at issue were directed at the children.

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See also Michael C., 526 F.3d at 1015 (“[I]t is unnecessary to show a subjective expectation of
privacy in instances in searches or seizures of young children * * * * (emphasis added)). And in
both cases, the courts denied qualified immunity to the defendants.
Plaintiffs are correct that in Calabretta the Ninth Circuit stated that “[t]he reasonable
expectation of privacy of individuals in their homes includes the interests of both parents and
children in not having government officials coerce entry,” Calabretta, 189 F.3d at 820, but even
if the Court were to rely on this dicta for the proposition that A.C. had a subjective expectation of
privacy in his family’s home, there is no indication that society is willing to respect this
expectation as reasonable. “An expectation of privacy does not give rise to Fourth Amendment
protection * * * unless society is prepared to accept that expectation as objectively reasonable.”
Greenwood, 486 U.S. at 39-40. Plaintiff has not pointed to any cases demonstrating that society
has accepted as objectively reasonable a toddler’s expectation of privacy in his family’s
dwelling. Though it is true that courts have held that minors may be capable of providing
consent to enter a home, see Untied States v. Sanchez, 608 F.3d 685, 690 (10th Cir. 2010)
(collecting cases), thus suggesting that in some instances society has recognized as reasonable
their expectations of privacy in a home, these children were all significantly older than A.C. See
Daryl H. v. Coler, 801 F.2d 893, 901 (7th Cir. 1986) (“A child of very tender years may not
exhibit a subjective expectation of privacy in the same sense as an older child.”); see also
Calabretta, 189 F.3d at 820 (“There is not much reason to be concerned with the privacy and
dignity of the three year old whose buttocks were exposed, because with children of that age
ordinarily among the parental tasks is teaching them when they are not supposed to expose their
buttocks.”). This is not to say that very young minors necessarily are outside the scope of the
constitutional protections of the Fourth Amendment; they too are “human being[s], entitled to be

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treated by the state in a manner compatible with that human dignity.” Daryl H., 801 F.2d at 901.
Indeed, the appeals courts that decided Michael C., Calabretta, and Franz have held that
physical searches of even very young children transgress constitutional boundaries. Absent
allegations that the challenged search had anything to do with A.C. or his belongings, however, it
is simply not reasonable to conclude that his legitimate expectations of privacy were violated,
notwithstanding the egregious nature of the officer Defendants’ alleged conduct. The Court thus
agrees with Judge Kocoras’s conclusion in Morales-Placencia v. City of Chi., 2011 WL
1542964, at *3 (N.D. Ill. Apr. 21, 2011): “It is simply not plausible that [two-year-old A.C.] was
anything but a bystander who witnessed illegal acts taking place. None of that illegal conduct
was directed toward him, as the absence of specific allegations in the complaint necessarily
manifest. Therefore, the motions to dismiss [A.C.’s] unreasonable search * * * claim[ is]
granted.”
Plaintiff has not demonstrated that A.C.’s Fourth Amendment claim would survive a
motion to dismiss. Accordingly, the Court concludes that permitting the addition of this claim
would be futile and denies the motion for leave to amend. A.C.’s proposed civil conspiracy
claim rests on the validity of his Fourth Amendment claim and thus cannot proceed either. See
Sow v. Fortville Police Dep’t, 636 F.3d 293, 305 (7th Cir. 2011).
IV.

Conclusion
For the reasons stated above, Plaintiff’s motion for leave to amend [173] is denied.

Defendant City of Chicago’s motion [158] is denied as moot. This matter is set for status at 9:00
a.m. on October 16, 2013.

Dated: September 30, 2013

_________________________________
Robert M. Dow, Jr.
United States District Judge
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