Padilla v. Kramer et al
MEMORANDUM Opinion and Order Signed by the Honorable John Z. Lee on 1/24/17.Mailed notice(ca, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
PATRICK B. PEREZ, DONALD E.
KRAMER, COREY HUNGER,
JAMES C. LEWIS, JACOB S.
WATSON, and JUSTIN H. HUNT,
15 C 5862
Judge John Z. Lee
MEMORANDUM OPINION AND ORDER
This case arises from events that took place while Plaintiff George Padilla
was being held as a pretrial detainee at the Adult Justice Center of Kane County,
Illinois (hereinafter, “the Jail”). Padilla has sued Sheriffs of Kane County Patrick
Perez and Donald Kramer, as well as Directors of Corrections Corey Hunger and
James Lewis (collectively, “the Supervisory Defendants”).
He has also sued
correctional officers Jacob Watson and Justin Hunt. Each Defendant has been sued
in both his individual and official capacities.
In his Third Amended Complaint, Padilla brings federal claims under 42
U.S.C. § 1983 for failure to protect and deliberate indifference to medical needs
(Counts I–III), a state law claim for negligence (Count IV), and a state law claim
against the Supervisory Defendants for respondeat superior liability (Count V).
Defendants have moved to dismiss Counts IV and V and to dismiss Padilla’s request
for punitive damages with respect to the same. For the reasons provided herein,
Defendants’ motion is granted in part and denied in part.
Factual Background 1
On February 19, 2014, Padilla was locked inside of a cell in an area of the
Jail where correctional officer Watson was on duty. 3d Am. Compl. ¶¶ 14, 23, ECF
No. 78. Meanwhile, an inmate named Lopez was mopping up an area of the Jail
and had propped open a nearby door. Id. ¶ 21. Padilla asked for the door to be
closed because cold air was blowing through it. Id. ¶ 23. When Watson closed the
door in response to Padilla’s request, Lopez became angry with Padilla. Id. He
walked over to Padilla’s cell and threatened to burn off his tattoos. Id. Intending to
make good on this threat, Lopez then walked to a nearby microwave and began
heating up a cup of water. Id. ¶ 24. Watson heard Lopez’s threat and saw him
heating the water for use as a weapon, but he “simply smirked and stayed seated at
his desk computer” rather than intervening. Id. ¶¶ 25–26.
While Lopez continued heating water in the microwave, correctional officer
Hunt came to take over Watson’s duties.
Id. ¶ 27. Written policy required all
inmates to be locked inside of their cells during correctional officers’ shift changes.
Id. ¶ 16. Contrary to this policy, however, Watson allowed Lopez to remain outside
of his cell during the shift change. Id. ¶ 18. Also contrary to written policy, Watson
did not inform Hunt that Lopez had confronted and threatened Padilla. Id. ¶ 29.
The following facts are taken from Plaintiff’s Third Amended Complaint and are
accepted as true on review of Defendants’ motion to dismiss. See Tamayo v. Blagojevich,
526 F.3d 1074, 1081 (7th Cir. 2008).
According to Padilla, these deviations from written policy were part of a broader
pattern of favoritism that Watson and other correctional officers frequently showed
toward Lopez. Id. ¶¶ 19–20, 29.
Once Watson and Hunt completed their shift change, Padilla left his cell and
went into a common area. Id. ¶ 32. He told Hunt that Lopez had threatened him
and was heating water to use as a weapon, but Hunt declined to intervene. Id.
¶¶ 30–31. Shortly thereafter, Lopez again confronted Padilla and threw the cup of
boiling water onto Padilla’s chest, face, and arms. Id. ¶ 32. The boiling water
caused blistering and severe burns all over Padilla’s chest and face. Id. ¶¶ 32–33.
Later that day, Padilla was sent to the emergency room, where doctors
determined that his burns were so severe that he needed to be transported to the
Loyola Burn Center. Id. ¶ 34. After spending a night at Loyola, Padilla was sent
back to the Jail. Id. ¶ 35. The doctor who saw Padilla at Loyola ordered that he be
given two tablets of Norco every six hours for the next ten days and that he return
to Loyola in seven days for a follow-up visit. Id. The doctor warned that if Padilla
did not timely return for the follow-up visit, “the wounds could improperly heal and
the new skin that was being regenerated could grow into [the] bandages.” Id.
A few days after returning to the Jail, Padilla’s wounds became very painful
and began leaking a puss-like discharge. Id. ¶ 36. Padilla repeatedly requested
medical attention, but Jail staff denied his requests. Id. Jail staff also refused to
give him the pain medication his doctor had prescribed. Id. ¶ 37. Instead, they
gave him only Tylenol and Aleve, which were insufficient to abate his pain. Id.
On February 27, 2014, seven days after Padilla left the Loyola Burn Center,
he requested that he be transported back to Loyola for the follow-up visit as ordered
by his doctor. Id. ¶ 38. Jail staff refused to transport him, stating that “it was not
necessary for him to go back to Loyola.”
Still in extreme pain, Padilla
commenced a hunger strike, which finally provoked Jail staff to transport him to
Loyola after lunchtime on February 28, 2014. Id. ¶¶ 39–40. By then, Padilla’s
burns had grown into the bandages as his doctor had warned. Id. ¶ 41. The doctor
therefore had to reopen Padilla’s wounds in order to remove his dressing, which
caused Padilla further severe pain. Id. Padilla alleges that Jail staff’s refusal to
give him the prescribed medication and to timely transport him to Loyola were part
of a broader practice or custom of deliberate indifference to inmates’ medical needs.
Id. ¶¶ 65–66.
A motion under Rule 12(b)(6) challenges the sufficiency of the plaintiff’s
complaint. Christensen v. Cnty. of Boone, Ill., 483 F.3d 454, 457 (7th Cir. 2007). To
survive a motion to dismiss under Rule 12(b)(6), a complaint must “state a claim to
relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). The complaint “need only provide a short and plain statement of the claim
showing that the pleader is entitled to relief, sufficient to provide the defendant
with fair notice of the claim and its basis.” Tamayo v. Blagojevich, 526 F.3d 1074,
1081 (7th Cir. 2008); see also Fed. R. Civ. P. 8(a)(2). In reviewing a motion to
dismiss under Rule 12(b)(6), a court must accept as true all well-pleaded allegations
in the complaint and must draw reasonable inferences in the plaintiff’s favor. See
Tamayo, 526 F.3d at 1081.
Count IV: State Law Negligence
In Count IV, Padilla brings a claim for negligence under Illinois law. This
claim is premised both upon Defendants’ failure to protect Padilla from other
inmates as well as upon the Supervisory Defendants’ failure to provide Padilla with
adequate medical care.
3d Am. Compl. ¶¶ 74–76.
Defendants contend that
Padilla’s negligence claim should be dismissed for three reasons. First, they argue
that the claim is barred by Illinois’s statute of limitations. Second, they argue that
they are immune from liability for negligence under Illinois’s Local Governmental
and Governmental Employees Tort Immunity Act, 745 Ill. Comp. Stat. 10/1 et seq.
(“Tort Immunity Act”). Finally, they argue that the claim should be dismissed on
the ground that Padilla has failed to comply with the requirements of Illinois’s
Healing Art Malpractice Act, 735 Ill. Comp. Stat. 5/2-622. The Court will address
each of these arguments below.
Statute of Limitations
Defendants argue that Count IV is barred by the one-year statute of
limitations set forth under 745 Ill. Comp. Stat. 10/8-101(a).
The statute of
limitations is an affirmative defense that is typically unsuitable for consideration at
the motion to dismiss stage. Reiser v. Residential Funding Corp., 380 F.3d 1027,
1030 (7th Cir. 2004).
When a party raises the statute of limitations as an
affirmative defense in a motion to dismiss, a court can dismiss a claim as untimely
only if there are no conceivable facts consistent with the complaint that could
overcome the defense. Sidney Hillman Health Ctr. of Rochester v. Abbott Labs.,
Inc., 782 F.3d 922, 928 (7th Cir. 2015). This is because a plaintiff’s complaint “need
not anticipate and attempt to plead around all potential defenses.” Xechem, Inc. v.
Bristol-Myers Squibb Co., 372 F.3d 899, 901 (7th Cir. 2004). Accordingly, “questions
of timeliness are left for summary judgment (or ultimately trial), at which point the
district court may determine compliance with the statute of limitations based on a
more complete factual record.” Sidney, 782 F.3d at 928.
Here, the operative complaint describes events that took place in February
3d Am. Compl. ¶¶ 21, 38–40.
Padilla waited until July 2015 to file his
complaint, but even so, Count IV is not necessarily untimely.
Based upon the
limited record before it, the Court cannot say there are no conceivable facts
consistent with the complaint that could overcome the statute of limitations
defense. See Sidney, 782 F.3d at 928. Further development of the factual record
could reveal, for example, that Padilla’s delay in filing suit is excused by the
doctrine of equitable estoppel or equitable tolling. See Clark v. City of Braidwood,
318 F.3d 764, 768 (7th Cir. 2003) (collecting cases); see also Sanders v. JGWPT
Holdings, Inc., No. 14 C 9188, 2016 WL 4009941, at *9 (N.D. Ill. July 26, 2016)
(declining to dismiss claim at the pleading stage as barred by statute of limitations);
Sroga v. Decero, No. 09 C 3286, 2010 WL 4705161, at *3 n.2 (N.D. Ill. Nov. 9, 2010)
(same); Turner v. City of Chi., No. 06 C 4786, 2007 WL 707546, at *2 (N.D. Ill. Mar.
5, 2007) (same). As such, the Court declines to dismiss Count IV on grounds of
untimeliness at this stage.
Illinois’s Tort Immunity Act
Next, Defendants contend that the Tort Immunity Act grants them immunity
from Padilla’s negligence claim in Count IV.
Padilla advances two theories in
support of this claim: he alleges that Defendants negligently failed to protect him
from other inmates and that the Supervisory Defendants negligently failed to
provide him with adequate medical care. 3d Am. Compl. ¶¶ 75–76. Because Illinois
law treats negligence claims based upon failure to protect differently from
negligence claims based upon failure to provide medical care, the Court will address
Padilla’s two negligence theories separately.
Negligent Failure to Protect
Defendants argue that § 4-103 of the Tort Immunity Act grants them
immunity from liability for failure to protect Padilla from other inmates at the Jail.
Section 4-103 provides that “[n]either a local public entity nor a public employee is
liable for failure to provide a jail, detention or correctional facility, or if such facility
is provided, for failure to provide sufficient equipment, personnel, supervision or
facilities therein.” 745 Ill. Comp. Stat. 10/4-103.
Illinois courts have interpreted § 4-103 as providing defendants with
immunity from claims for negligent failure to protect inmates.
See Jefferson v.
Sheahan, 664 N.E.2d 212, 214–17 (Ill. 1996) (dismissing pretrial detainee’s claim
for negligent failure to protect because defendants were immune under § 4-103).
The Seventh Circuit has recognized as much, and federal district courts have
routinely dismissed state law failure-to-protect claims on grounds of immunity
under § 4-103. See Payne for Hicks v. Churchich, 161 F.3d 1030, 1044 (7th Cir.
1998); Lipsey v. United States, No. 12-2100, 2013 WL 757652, at *6 (C.D. Ill. Jan. 2,
2013) (“Local government entities often successfully invoke Section 4-103 in failureto-protect cases.”); M.W. v. Doe 1, No. 12 C 2461, 2012 WL 3717790, at *4 (N.D. Ill.
Aug. 27, 2012) (dismissing claims with prejudice under § 4-103 where inmate
brought negligence claims premised upon jail personnel’s failure to protect him from
abuse by other inmates).
Padilla argues that § 2-202 of the Tort Immunity Act nevertheless permits
him to proceed under a failure-to-protect theory. Section 2-202 provides that “[a]
public employee is not liable for his act or omission in the execution or enforcement
of any law unless such act or omission constitutes willful and wanton conduct.” 745
Ill. Comp. Stat. 10/2-202. According to Padilla, § 2-202 carves out an exception to
the immunity provided under § 4-103, permitting negligence claims to proceed
against defendants who have engaged in willful and wanton conduct.
Unfortunately for Padilla, the Illinois Supreme Court has squarely rejected
his argument. Section 2-202 provides a willful-and-wanton exception that is limited
to the immunity set forth under § 2-202 itself; it does not provide a general willfuland-wanton exception to the immunities set forth in other sections of the Tort
Immunity Act. Ries v. City of Chi., 950 N.E.2d 631, 640–44 (Ill. 2011). As such, the
immunity set forth under § 4-103 is not subject to any exception for willful and
wanton conduct, and Illinois courts have made clear that no such exception may be
judicially created. Jefferson, 664 N.E.2d at 217; see also Payne, 161 F.3d at 1044
(“Illinois courts have held that the immunity afforded by § 4-103 was intended by
the Illinois legislature to be absolute.”).
For these reasons, § 4-103 gives
Defendants immunity from Padilla’s claim for negligent failure to protect, and
§ 2-202 does nothing to salvage this claim. 2 Thus, to the extent Padilla brings a
state law claim in Count IV premised upon Defendants’ failure to protect Padilla
from other inmates, the claim is dismissed with prejudice.
Negligent Failure to Provide Medical Care
Next, the Supervisory Defendants argue that § 4-105 of the Tort Immunity
Act grants them immunity from liability for failure to provide Padilla with adequate
Section 4-105 states that “[a] public employee is immune from
liability for injury caused by his failure to provide medical care for a prisoner in his
custody, but not when the employee engaged in willful and wanton conduct.” 745
Ill. Comp. Stat. 10/4-105.
In other words, § 4-105 provides jail personnel with
immunity from claims for failure to provide medical care, but—unlike § 4-103—it
contains an exception for willful and wanton conduct. Padilla contends that the
Supervisory Defendants are not entitled to immunity under § 4-105 on the ground
that their conduct falls within this willful-and-wanton exception.
In support of his argument that § 2-202 creates an exception to § 4-103, Padilla cites
Torres v. City of Chicago, 123 F. Supp. 2d 1130 (N.D. Ill. 2000). In that case, the court
addressed a negligence claim based upon police officers’ failure to summon medical care for
a gunshot victim. Id. at 1131. The plaintiff had not brought a claim for failure to supervise
or protect, and § 4-103 was not at issue. The Court therefore finds Padilla’s reliance on
Torres to be unpersuasive.
Under Illinois law, “[t]here is no separate and independent tort of willful and
wanton conduct.” Krywin v. Chi. Transit Auth., 938 N.E.2d 440, 452 (Ill. 2010)
(citing Ziarko v. Soo Line R.R. Co., 641 N.E.2d 402, 406 (Ill. 1994)). Rather, a claim
for willful and wanton conduct is “regarded as an aggravated form of negligence.”
Id. (citing Sparks v. Starks, 856 N.E.2d 575, 577–78 (Ill. 2006)). For purposes of the
Tort Immunity Act, conduct is “willful and wanton” if it “shows an actual or
deliberate intention to cause harm or which, if not intentional, shows an utter
indifference to or conscious disregard for the safety of others or their property.” 745
Ill. Comp. Stat. 10/1-210.
The Seventh Circuit has recognized that the Tort
indistinguishable from the deliberate indifference standard that governs federal
constitutional claims against jail personnel for failure to provide medical care. See
Williams v. Rodriguez, 509 F.3d 392, 404 (7th Cir. 2007); Chapman v. Keltner, 241
F.3d 842, 847 (7th Cir. 2001).
Here, Padilla alleges that the Supervisory Defendants acted with deliberate
indifference to his medical needs in setting policies that prevented him from
receiving his prescribed pain medication and being timely transported to the Loyola
Burn Center. 3d Am. Compl. ¶¶ 35–42, 67–72, 74. He thus alleges willful and
wanton conduct sufficient to defeat a claim of immunity under § 4-105 at the motion
to dismiss stage. See Leato v. Dart, No. 14 CV 454, 2016 WL 890741, at *3 (N.D. Ill.
Mar. 9, 2016) (no immunity under § 4-105 where plaintiff alleged negligent failure
to provide medical care that may have risen to the level of willful and wanton
conduct); Kelderhouse v. Fox, No. 05 C 4503, 2006 WL 2560855, at *4–5 (N.D. Ill.
Aug. 31, 2006) (no immunity under § 4-105 for sheriff and correctional officers
where plaintiff alleged wanton and willful conduct); Thomas ex rel. Smith v. Cook
Cnty. Sheriff, 401 F. Supp. 2d 867, 876 (N.D. Ill. 2005) (no immunity under § 4-105
for defendants sued in their individual and official capacities where plaintiff alleged
wanton and willful conduct); Kruse v. Sheahan, No. 04 C 6130, 2005 WL 1126549,
at *2 (N.D. Ill. Apr. 21, 2005) (same).
Dismissal of Count IV on grounds of
immunity under § 4-105 is therefore unwarranted at this stage of the proceedings.
Illinois’s Healing Art Malpractice Act
To the extent Count IV brings a claim for negligent failure to provide medical
care, Defendants argue that the claim should be dismissed because Padilla did not
attach an affidavit to his complaint as required by Illinois’s Healing Art Malpractice
Act, 735 Ill. Comp. Stat. 5/2-622.
In response, Padilla argues that § 2-622 is
inapplicable because Count IV does not state a medical malpractice claim.
Section 2-622 applies in “any action, whether in tort, contract or otherwise, in
which the plaintiff seeks damages for injuries or death by reason of medical,
hospital, or other healing art malpractice.” 735 Ill. Comp. Stat. 5/2-622(a). When
§ 2-622 applies, the plaintiff must file an affidavit along with the complaint,
attesting that he has consulted with a qualified health care professional before
filing suit. Id.; see also Plummer v. Godinez, No. 13 C 8253, 2015 WL 1013700, at
*3 (N.D. Ill. Mar. 4, 2015) (summarizing the requirements of § 2-622). Failure to
attach this affidavit is grounds for dismissal of a claim.
735 Ill. Comp. Stat.
The Seventh Circuit has held that § 2-622 applies to state law
malpractice claims brought in federal court. See Hahn v. Walsh, 762 F.3d 617, 628–
33 (7th Cir. 2014).
Here, Defendants’ argument turns on whether Count IV brings a malpractice
claim under the guise of an ordinary negligence claim.
Section 2-622 requires
attachment of an affidavit “even where a complaint does not allege medical
malpractice on its face, if the determination at issue ‘is inherently one of medical
judgment.’” Thomas, 401 F. Supp. 2d at 877 (quoting Lyon v. Hasbro Indus., Inc.,
509 N.E.2d 702, 705 (Ill. App. Ct. 1987)). To make this assessment, Illinois courts
consider factors such as: (1) whether determining the relevant standard of care
would require “distinctively medical knowledge or principles”; (2) whether the
conduct resulting in the plaintiff’s injury was “inherently one of medical judgment”;
and (3) whether medical expert testimony will be required to establish the standard
of care. Jackson v. Chi. Classic Janitorial & Cleaning Serv., Inc., 823 N.E.2d 1055,
1059–60 (Ill. App. Ct. 2005); see also Washington v. Ill. Dep’t of Corr., No. 13 C 5977,
2014 WL 2535115, at *3 (N.D. Ill. June 5, 2014) (applying these factors).
Padilla alleges that the Supervisory Defendants negligently failed to provide
him with medical care by maintaining policies and customs under which Jail
personnel refused to give Padilla his medication and timely transport him to the
Loyola Burn Center as required by his doctor’s orders. 3d Am. Compl. ¶¶ 67–69. At
their core, these allegations accuse the Supervisory Defendants of setting policies
that left room for Jail personnel to disregard straightforward orders from an outside
medical professional; they do not suggest that the Supervisory Defendants or any
other Jail personnel were negligent in exercising their own medical judgment.
Further, while it is possible that the parties may later seek to admit medical expert
testimony, such testimony will not necessarily be required for a jury to determine
the relevant standard of care or to find that the Supervisory Defendants were
negligent in maintaining the alleged policies and customs. For these reasons, the
Court concludes that Count IV does not bring a claim for medical malpractice
falling within the scope of § 2-622. Cf. Warren ex rel. Warren v. Dart, No. 09-CV3512, 2010 WL 4883923, at *11 (N.D. Ill. Nov. 24, 2010) (§ 2-622 applied to claims
for negligent failure to provide medical care to the extent the claims were brought
against nurses, but not to the extent they were brought against non-nurse
defendants); Thomas, 401 F. Supp. 2d at 877 (§ 2-622 did not apply to wrongful
death claim against jail personnel who had not exercised medical judgment);
Freeman v. Fairman, 916 F. Supp. 786, 792 (N.D. Ill. 1996) (§ 2-622 did not apply to
negligence claims against nonmedical jail personnel). As a result, § 2-622 does not
apply and Padilla’s complaint is not deficient for failing to include an attached
affidavit. Padilla may therefore proceed with Count IV to the extent that it brings a
negligence claim against the Supervisory Defendants for failure to provide medical
Count V: State Law Respondeat Superior Liability
In Count V, Padilla brings a state law respondeat superior claim against the
Supervisory Defendants, seeking to hold them liable for the tortious conduct of
correctional officers Watson and Hunt. 3d Am. Compl. ¶¶ 79–81. The Supervisory
Defendants argue that this claim should be dismissed under § 2-204 of the Tort
Immunity Act. They are correct.
Section 2-204 provides that “a public employee, as such and acting within the
scope of his employment, is not liable for an injury caused by the act or omission of
another person.” 745 Ill. Comp. Stat. 10/2-204. The Seventh Circuit has recognized
that § 2-204 provides supervisory defendants with immunity from respondeat
superior liability under state law. See Payne, 161 F.3d at 1044 (county sheriff was
immune from respondeat superior liability under § 2-204); see also Thomas v.
Sheahan, 499 F. Supp. 2d 1062, 1100 (N.D. Ill. 2007) (supervisory defendants were
immune from respondeat superior liability under § 2-204 for state law claims
brought by pretrial detainee).
Because § 2-204 provides the Supervisory
Defendants with immunity from respondeat superior liability, Count V is hereby
dismissed with prejudice.
Finally, Defendants have moved to dismiss Padilla’s request for punitive
damages in connection with his state law claims on the ground that punitive
damages are precluded under § 2-102 of the Tort Immunity Act.
Notwithstanding any other provision of law, a local public entity is not
liable to pay punitive or exemplary damages in any action brought
directly or indirectly against it by the injured party or a third party.
In addition, no public official is liable to pay punitive or exemplary
damages in any action arising out of an act or omission made by the
public official while serving in an official executive, legislative, quasilegislative or quasi-judicial capacity, brought directly or indirectly
against him by the injured party or a third party.
745 Ill. Comp. Stat. 10/2-102. Thus, to invoke immunity from liability for punitive
damages under § 2-102, a defendant must be either (1) “a local public entity” or (2) a
“public official [ ] serving in an official executive, legislative, quasi-legislative or
quasi-judicial capacity.” Id.
Here, Padilla has sued Sheriffs of Kane County Perez and Kramer, Directors
of Corrections Hunger and Lewis, and correctional officers Hunt and Watson.
These Defendants clearly are not “local public entities” under the Tort Immunity
Act. 3 What is less clear, however, is whether Defendants are public officials serving
in an official executive, legislative, quasi-legislative, or quasi-judicial capacity
within the meaning of § 2-102. That said, Defendants have made no attempt to
argue that they are indeed such public officials and have cited no authority
speaking to this issue. Therefore, Defendants have not satisfied their burden to
persuade the Court that Padilla’s request for punitive damages should be dismissed
at this juncture. Cf. Carroccia v. Anderson, 249 F. Supp. 2d 1016, 1029 (N.D. Ill.
2003) (declining to strike request for punitive damages under § 2-102 at the motion
to dismiss stage given the paucity of case law on this issue and the absence of
developed arguments in the parties’ briefs); Doe ex rel. Doe v. White, 627 F. Supp. 2d
Under the Tort Immunity Act, “‘[l]ocal public entity’ includes a county, township,
municipality, municipal corporation, school district, school board, educational service
region, regional board of school trustees, trustees of schools of townships, treasurers of
schools of townships, community college district, community college board, forest preserve
district, park district, fire protection district, sanitary district, museum district, emergency
telephone system board, and all other local governmental bodies. . . . It does not include
the State or any office, officer, department, division, bureau, board, commission, university
or similar agency of the State.” 745 Ill. Comp. Stat. 10/1-206.
905, 911 (C.D. Ill. 2009) (same). Defendants’ motion to dismiss Padilla’s request for
punitive damages in connection with his state law claims is accordingly denied.
For the reasons stated herein, Defendants’ motion to dismiss  is granted
in part and denied in part. To the extent Count IV brings a claim for state law
negligence based upon Defendants’ failure to protect Padilla from other inmates,
that portion of Count IV is dismissed with prejudice. Count V is also dismissed
with prejudice. In all other respects, Defendants’ motion to dismiss is denied.
IT IS SO ORDERED.
John Z. Lee
United States District Judge
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