Gilmore v. USP McCreary et al
Filing
19
MEMORANDUM OPINION & ORDER: 1. Gilmores Complaint 1 and Amended Complaint 11 are DISMISSED for Gilmores failure to exhaust his administrative remedies and this matter is STRICKEN from the docket. 2. Gilmores motion for the appointment of counsel 13 ; motion for a hearing 14 ; and motion for emergency injunction 16 are DENIED as moot. 3. The Court will enter an appropriate judgment. Signed by Judge Gregory F. Van Tatenhove on 11/7/2013.(JMB)cc: COR,Errick Gilmore via US Mail
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
ERRICK GILMORE,
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Plaintiff,
V.
UNITED STATES PENITENTIARYMcCREARY, et al.,
Defendants.
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Civil No. 6:13-025-GFVT
MEMORANDUM OPINION
&
ORDER
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Errick Gilmore is an inmate presently confined at the United States Penitentiary-Coleman
(“USP-Coleman”) in Coleman, Florida. Pursuant to the doctrine announced in Bivens v. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971), Gilmore, proceeding pro se, filed this
civil rights action against the defendants, various prison officials and prison staff at the United
States Penitentiary-McCreary (“USP-McCreary”) located in Pine Knot, Kentucky, asserting that
these defendants violated his constitutional rights while he was an inmate at that prison facility.
[R. 1, 11] Gilmore has been granted pauper status. [R. 6]
The Court must conduct a preliminary review of Gilmore’s complaint because he has
been granted permission to proceed in forma pauperis and because he asserts claims against
government officials. 28 U.S.C. §§ 1915(e)(2), 1915A. A district court must dismiss any
claim that is frivolous or malicious, fails to state a claim upon which relief may be granted, or
seeks monetary relief from a defendant who is immune from such relief. McGore v.
Wrigglesworth, 114 F.3d 601, 607-08 (6th Cir. 1997). The Court evaluates Gilmore’s
complaint under a more lenient standard because he is not represented by an attorney.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Burton v. Jones, 321 F.3d 569, 573 (6th Cir.
2003). At this stage, the Court accepts Gilmore’s factual allegations as true and liberally
construes his legal claims in his favor. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555-56
(2007).
For the reasons set forth below, the Court will dismiss Gilmore’s complaint because
based on a review of the face of Gilmore’s Complaint, Amended Complaint, and the exhibits
attached thereto, Gilmore failed to exhaust his administrative remedies, as a prisoner must do
prior to filing a complaint.
I
Gilmore claims that numerous prison officials at USP-McCreary violated several of his
rights afforded by the United States Constitution while he was an inmate there. Gilmore has a
laundry list of complaints. In summary, Gilmore states that the defendants have violated:
. . . my 1st Amendment right to Freedom of Speech through the Grievance
Procedure. My 5th Amendment right to due process by blocking me from getting
relief through the grievance procedure. My 8th Amendment right against cruel
and unusual punishment by denying me medical attention for my injured ribs, by
denying me medical attention twice when I had a diabetic attack, and by taking
my cloth[e]s, sheets, blankets, towels, washcloths, soap, deodorant, and lotion and
not allowing me to take a shower for 10 days, and allowing me to be assaulted on
camera by 4 inmates and not charging or locking any of them up, then conspiring
to cover it up. They also violated my 14th Amendment right to be treated equally.
[R. 1, p. 3]
Gilmore further claims that after he was assaulted by the four inmates on November 26,
2012, none of those inmates were charged for a disciplinary offense, that he was the only inmate
who was “locked up” afterwards, and that he was charged with destroying government property,
2
placed in handcuffs, and removed from his cell and taken to the SHU, where he was chained to a
bed for twelve hours because he had stated that he was going to complain to Captain Maruka
about being assaulted. Id. Gilmore states that defendants SIS Parson, SIA Corvalt, SIS Baker,
Captain Maruka, Lt. Boulet, and C/O Eliot have conspired to conceal their abuse of him and their
activities in violating his constitutional rights.
Gilmore also states that prison officials have been deliberately indifferent to his serious
medical needs, an Eighth Amendment violation, in that (1) his injured ribs were never x-rayed,
and he was denied pain medication for the injured ribs; (2) on December 15, 2012, he, a diabetic,
experienced a low blood sugar episode late in the night and that he was denied timely medical
care at that time because the prison does not employ medical personnel to be available during the
third shift, resulting in his having to wait until morning to receive treatment for that low blood
sugar episode.
Gilmore also claims that the grievance system at the prison does not work, that his
grievances disappear, and/or that Counselor Partin, Counselor Lawson, and Unit manager Roane
will not file his grievances, retaliated against him, and threatened to keep him in SHU because he
continued to file grievances. Gilmore asserts that his Fifth Amendment right to due process was
violated in that he was originally placed in the SHU under a bogus protective custody order,
when he had not requested to be placed in protective custody.
For relief, Gilmore requests that he receive the following injunctive relief: (1) immediate
treatment for injured ribs, (2) that the medical department stop mixing other medications with his
insulin in order to save money on needles, and (3) that USP-McCreary be ordered to employ a
3
third shift medical nurse. Gilmore requests $10,000,000 in compensatory damages for pain and
suffering and $50,000,000 in punitive damages, and a jury trial.
Gilmore’s complaint is accompanied by numerous exhibits, comprising a total of 57
unnumbered pages, but are identified in alphabetical order as Exhibit A through Exhibit W,
which appear to be evidence of Gilmore’s filing of grievances, Requests for Informal Resolution,
and numerous Requests for Administrative Remedy, concerning various incidents and situations
at USP-McCreary, beginning with his alleged assault by four other inmates on November 26,
2012. These exhibits are more particularly described below:
Exhibit A - Administrative Remedy Procedure For Inmates, Informal Resolution Form,
dated December 3, 2012. This request concerns Gilmore’s not being allowed to take a shower
for 10 days, not being provided with clean clothes, being denied underwear, and being forced to
wear a paper gown exposing his genitalia to female prison staff. He requests that these
constitutional violations cease and that the various prison employees involved be sanctioned.
Exhibit B - unnumbered Request for Administrative Remedy, dated January 8, 2013,
concerning his being assaulted by four inmates on November 26, 2012, and the alleged cover-up
of this assault and falsified reports by certain prison officials. Gilmore requests $100,000 in
damages.
Exhibit C - Request for Administrative Remedy #716779-F1, dated December 3, 2012,
concerns the same assault incident by four inmates occurring on November 26, 2012.
Exhibit C-2 - Warden Holland’s response to Request for Administrative Remedy
#716779-F1; dated January 10, 2013. Warden Holland advises that: “An investigation into this
matter was conducted and our records indicate that an investigation is still open in regards to this
4
case.” [R. 1-3, p. 13] The Warden informs Gilmore that if he is dissatisfied with the response, he
may appeal to the Regional Director and file same within 20 days.
Exhibit D - one-page, undated, unnumbered Request for Administrative Remedy,
concerns (1) prison employees’ alleged retaliation against Gilmore for filing grievances and
standing up for his rights, (2) the conspiracy to cover up the assault by four inmates, (3) being
taken to the SHU in the absence of being charged with an offense, (4) being chained to a bed for
12 hours, (5) his clothes being taken for 10 days. Gilmore wants to file an affidavit and requests
damages of $100,000 per day for these violations.
Exhibit E - unnumbered Request for Administrative Remedy dated December 31, 2012,
regarding staff misconduct and requests that a third shift nurse be employed in medical
department. Also requests $120,000 in damages and that Lt. Mooney and C/O Eppely be fired.
Exhibit F - unnumbered Request for Administrative Remedy dated January 6, 2013,
complaining that he is only being provided with one BP8 form per week. Requests that several
prison employees be fired or suspended for staff misconduct and that a third shift medical nurse
be provided. Requests $100,000 in damages for pain and suffering.
Exhibit G - Request for Administrative Remedy #717219-F1, dated December 19, 2012,
claiming that a prior BP8 #120312B had mysteriously been lost. Reiterates the claimed
violations for being placed in a paper gown that did not provide sufficient coverage and having to
walk in the presence of female staff with his genitals being visible. Reiterates that he was
subjected to these measures in the absence of an incident report being issued to him.
Exhibit H - an unidentified, undated page that appears to be a continuation page from a
Request for Administrative Remedy. Reiterates that on December 3, 2012, he obtained a BP8
5
and a BP9 form from Counselor Partin, completed them and gave them to Unit Manager Roan on
December 6, 2012, and that on December 17, 2012, upon inquiry to Counselor Partin about their
status, Counselor Partin advised him that he had not seen these completed forms, and that now
they are time-barred. Claims that Counselor Partin would not let him file a new BP8. Claims
that the Unit Team in 6 Building is trying to conceal his assault by the four inmates and his being
stripped of his clothes and forced to wear a paper gown for 10 days. Reiterates that his First,
Fifth, and Eighth Amendment rights have been violated.
Exhibit I - unnumbered Request for Administrative Remedy dated December 30, 2012,
concerning the same prison staff misconduct raised in previous Requests for Administrative
Remedies. He requests that he be given as many BP8 forms as he needs because Counselor
Partin only comes to the SHU once per week. He also requests that Counselor Partin be
suspended and that he be awarded $10,000 in damages for pain and suffering.
Exhibit J - Warden Holland’s response to Request for Administrative Remedy #716779F1; dated January 10, 2013. This exhibit is a duplicate of Exhibit C-2 above.
Exhibit K - Administrative Remedy Procedure For Inmates, Informal Resolution Form,
dated January 4, 2013. This request concerns his assault by four inmates, being placed in the
SHU in protective custody without requesting protective custody status, and the disappearance of
his prior BP8 form. He requests to go to the compound or to be transferred to another prison.
Counselor Lawson’s response advised Gilmore that he was placed in protective custody at 9:10
p.m. on November 26, 2012, due to his disruptive behavior.
Exhibit L - a receipt acknowledging that Gilmore’s Request for Administrative Remedy
#716779-F1 was received on December 12, 2012, and that a response is due on January 1, 2013.
6
Exhibit M - Warden Holland’s response to Request for Administrative Remedy
#717219-F1; dated January 14, 2013. Warden Holland advises that allegations of staff
misconduct are taken seriously and are thoroughly reviewed. Informs Gilmore that if he is
dissatisfied with Warden’s response, he may appeal to the Regional Director and file same within
20 days.
Exhibit N - Incident Report dated November 30, 2012, charging Gilmore with Refusing
programs (Code 306), Refusing an Order (Code 307), and Tampering with a locking device
(Code 208).
Exhibit O - unnumbered Request for Administrative Remedy, dated January 4, 2013;
concerns staff misconduct about being able to obtain only one BP8 form per week and reiterates
claims of retaliation by prison staff.
Exhibit P - unnumbered Regional Administrative Remedy Appeal1, dated January 6,
2013. Reiterates claims about abuse from prison officials. Requests that C/Os Strunk, Baird,
Marcum, Bowles, Maley, Lt. Boulet, and Warden J. C. Holland all be placed in a paper gown for
various lengths of time. Reiterates that he never received an Incident Report for destruction of
government property. Requests $70,000 damages for pain and suffering from some prison
employees and $120,000 damages from other prison employees.
1
Although Gilmore utilized the form for filing an appeal to the BOP’s Regional Office, it
makes no reference to a prior Request for Administrative Remedy (by case number, date, or
otherwise) or the Warden’s response thereto. Additionally, none of Gilmore’s exhibits include a
decision by the BOP’s Regional Office to any appeal. Thus, it appears that Gilmore intended to
file a Request for Administrative Remedy and erroneously used the form for filing a Regional
Administrative Remedy Appeal.
7
Exhibit Q - unnumbered Request for Administrative Remedy, dated January 8, 2013.
Gilmore notes on this form that he used that form because he is allowed only one BP8 per week
and because this matter can not be resolved on a BP8 level. Claims that Administrative Remedy
Coordinator J. Bishop conspired with Warden J. C. Holland to conceal his being assaulted by
four inmates on November 26, 2012. Requests the following relief: (1) that J. Bishop correct
the remedy receipt he gave Gilmore on Case #716779-F1, or (2) J. Bishop remove himself as the
Administrative Remedy Coordinator, or (3) J. Bishop be suspended for 90 days.
Exhibit R - Request for Administrative Remedy #719064-F1, dated January 6, 2013,
concerning staff misconduct, delay or access to medical care and administrative remedy
procedures.
Exhibit R-22 - a Rejection Notice dated January 16, 2013, advising Gilmore that his
Request for Administrative Remedy #719064-F1 concerning delay or access to medical care and
administrative remedy procedures is rejected for two different reasons. Advises Gilmore that he
may resubmit this request in proper form within five days of the date of the rejection notice.
Exhibit S - Request for Administrative Remedy #719020-F1, dated January 3, 2013,
concerning staff misconduct, delay or access to medical care, and his being placed in
administrative detention. Reiterates same complaints raised previously regarding assault on
November 26, 2012, being placed in the SHU, being stripped of clothes and placed in a paper
gown, chained to a bed for 12 hours, and the lack of a third shift medical nurse.
2
Gilmore identified this exhibit as Exhibit R; thus, he has two different exhibits labeled as
Exhibit R. Because this exhibit is a rejection notice concerning the first Exhibit R, it would be
more properly characterized as “Exhibit R-2.”
8
Exhibit S-2 - a Rejection Notice dated January 16, 2013, advising Gilmore that his
Request for Administrative Remedy #719020-F1 concerning delay or access to medical care,
placement in administrative detention, reviews, and release is rejected for two different reasons.
Advises Gilmore that he may resubmit this request in proper form within five days of the date of
the rejection notice.
Exhibit T - undated Request for Administrative Remedy #719050-F1, reiterating claims
of staff misconduct and improper administrative remedy procedures. Requests being released to
the compound, that Lt. McDowall, Lt. Boulet, Lt. SIS Parson, SIA Corvalt, SIS Lt. Baker and
C/O Eliott be fired, and $10,000 in damages for every day spent in the SHU and been mistreated,
in violation of his constitutional rights.
Exhibit T-23 - a Rejection Notice dated January 16, 2013, advising Gilmore that his
Request for Administrative Remedy #719050-F1 concerning administrative remedy procedures is
rejected because two different reasons. Advises Gilmore that he may resubmit this request in
proper form within five days of the date of the rejection notice.
Exhibit U - Request for Administrative Remedy, #719054-F1, dated January 8, 2013.
Gilmore notes on this form that he used that form because he is allowed only one BP8 per week
and because this matter can not be resolved on a BP8 level. Claims that Administrative Remedy
Coordinator J. Bishop conspired with Warden J. C. Holland to conceal his being assaulted by
four inmates on November 26, 2012. Requests following relief: (1) that J. Bishop correct the
3
Gilmore identified this exhibit as Exhibit T; thus, he has two different exhibits labeled as
Exhibit T. Because this exhibit is a rejection notice concerning the first Exhibit T, it would be
more properly characterized as “Exhibit T-2.”
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remedy receipt he gave Gilmore on Case #716779-F1, or (2) J. Bishop remove himself as the
Administrative Remedy Coordinator, or (3) J. Bishop be suspended for 90 days.4
Exhibit U-25 - a Rejection Notice dated January 16, 2013, advising Gilmore that his
Request for Administrative Remedy #719054-F1 concerning administrative remedy procedures is
rejected because he submitted more than one continuation page with it. Advises Gilmore that he
may resubmit this request in proper form within five days of the date of the rejection notice.
Exhibit V - Request for Administrative Remedy, #719012-F1, dated December 30, 2012.
Concerns same prison staff misconduct raised in previous Request for Administrative Remedy.
He requests that he be given as many BP8 forms as he needs because Counselor Partin only
comes to the SHU once per week. He also requests that Counselor Partin be suspended and that
he be awarded $10,000 in damages for pain and suffering.6
Exhibit V-27 - a Rejection Notice dated January 16, 2013, advising Gilmore that his
Request for Administrative Remedy #719012-F1 concerning administrative remedy procedures is
rejected because (1) he did not attempt informal resolution prior to submission of administrative
remedy request, or (2) he did not provide the necessary evidence of his attempt at informal
4
Exhibit U is a duplication of Exhibit Q. They are identical except that Exhibit Q
contains no case number, while Exhibit U does.
5
Gilmore identified this exhibit as Exhibit U; thus, he has two different exhibits labeled as
Exhibit U. Because this exhibit is a rejection notice concerning the first Exhibit U, it would be
more properly characterized as “Exhibit U-2.”
6
Exhibit V is a duplication of Exhibit I. They are identical except that Exhibit I contains
no case number, while Exhibit V does.
7
Gilmore identified this exhibit as Exhibit V; thus, he has two different exhibits labeled as
Exhibit V. Because this exhibit is a rejection notice concerning the first Exhibit V, it would be
more properly characterized as “Exhibit V-2.”
10
resolution. Advises Gilmore that he may resubmit this request in proper form within five days of
the date of the rejection notice.
Exhibit W - unnumbered Request for Administrative Remedy, dated January 14, 2013.
Generally, concerns staff misconduct, but in particular, Gilmore claims that Case Manager
Jamison mishandled his BP8. Claims prison employees conspired to keep him in protective
custody in SHU, even though he had not been charged with a disciplinary offense. For relief, he
requests that Jamison be fired or at least suspended for 90 days without pay, that SIA Corvalt,
SIS Parson, SIS Baker, and Unit Manager Roan be fired for this cover-up, that his reclassification
be done immediately, and that he receive $200,000 per day in compensatory damages for pain
and suffering until his reclassification is done.
II
The Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. §1997e(a), requires a
prisoner to first exhaust whatever administrative remedies are available to him before suit is
filed. Based on this provision, regardless of the relief offered through the administrative
procedures, prisoners are required to exhaust all administrative remedies prior to filing a lawsuit
regarding prison life. Booth v. Churner, 532 U.S. 731, 741 (2001). This requirement applies to
“all inmate suits about prison life, whether they involve general circumstance or particular
episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534
U.S. 516, 525 (2002). The Supreme Court has further held that the PLRA requires proper
exhaustion of the administrative remedy process, as “[p]roper exhaustion demands compliance
with an agency’s deadlines and other critical procedural rules....” Woodford v. Ngo, 548 U.S. 81,
90 (2006). The Supreme Court stressed that the benefits of exhaustion “can be realized only if
11
the prison grievance system is given a fair opportunity to consider the grievance. The prison
grievance system will not have such an opportunity unless the grievant complies with the
system’s critical procedural rules.” Id. at 95. The BOP’s four-tiered administrative remedy
scheme, available to inmates who have a complaint about their confinement, is set out in
Administrative Remedy Program Statement Number 1330.16 and 28 C.F.R. §§ 542.10-542.8
Although Gilmore has filed numerous BP8s and numerous Requests for Administrative
Remedy,9 it is clear from his Complaint, Amended Complaint, and the 57 pages of exhibits
attached thereto, as itemized and summarized above, that he did not exhaust his administrative
remedies with respect to any of his Requests for Administrative Remedy. Instead of appealing
the denial of any of his Requests for Administrative Remedy to the BOP’s Regional Office, and
then on to the BOP’s Central Office, if necessary, it appears that Gilmore persisted in a pattern of
repeated filing of the same or similar Requests for Administrative Remedy concerning the same
8
The multi-step administrative remedies available to inmates confined in BOP institutions
are set out in 28 C.F. R. §542.10-.19. Section 542.13(a) demands that an inmate first informally
present his complaint to the staff [BP-8 form], thereby providing staff with an opportunity to
correct the problem, before filing a request for an administrative remedy. If the inmate cannot
informally resolve his complaint, then he may file a formal written request to the Warden [BP-9].
See §542.14(a). If the inmate is not satisfied with the Warden's response, he may appeal to the
Regional Director [BP-10], and, if not satisfied with the Regional Director's response, the inmate
may appeal that decision to the Office of General Counsel [BP-11]. See §542.15.
The administrative procedure includes established response times. §542.18. As soon as
an appeal is accepted and filed, the Warden has 20 days to respond; the Regional Director, 30
days; and General Counsel, 40 days. Only one extension of time of 20-30 days, in writing, is
permitted the agency. If the inmate does not receive a response within the allotted time,
including extension, he may consider the absence of response as a denial at that level. Id.
9
Gilmore filed two Informal Requests for Resolution (Exhibits A and K), eight
unnumbered Requests for Administrative Remedy (Exhibits B, D, E, F, I, O, Q, and W), seven
numbered Requests for Administrative Remedy (Exhibits C, G, R, S, T, U, and V), and one form
captioned “Regional Administrative Remedy Appeal” (Exhibit P).
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subject matter on which he had either received no response from the Warden or that the Warden
had rejected for various deficiencies, but gave Gilmore an opportunity to correct the deficiency
and resubmit. There is no evidence that Gilmore attempted to resubmit a previously rejected
Request for Administrative Remedy. Instead, it appears that he simply chose to file a new
Request for Administrative Remedy concerning the same complaint or subject matter.
Thus, in the present case, Gilmore has failed to fully and properly exhaust his grievances
pursuant to the administrative exhaustion procedures, “in accordance with all of the provisions
thereof.” Jackson v. Walker, No. 6:07-230-DCR, 2008 WL 559693 at *9, (E.D. Ky. Feb. 27,
2008). “In Ngo, the Supreme Court made it clear that 42 U.S.C. 1997e(a) requires available
administrative procedures to be completed properly, not in a self-designated hodgepodge of
procedures taken from various parts of the regulations.” Id. “‘Proper exhaustion’ means that the
plaintiff complied with the administrative ‘agency’s deadline and other critical procedural rules
because no adjudicative system can function effectively without imposing some orderly structure
on the course of its proceedings.’” Morton v. Daviess County Detention Center, 4:08-CV-P30-M,
2009 WL 960495 at *2, (W.D. Ky. April 7, 2009) (citing Woodford v. Ngo, 548 U.S. at 90).
Gilmore has failed to comply with the requirements of the PLRA in that he failed to
address the allegations he raised in the Bivens complaint through the proper administrative
remedy procedures. Woodford confirmed that these requirements are mandatory. See, e.g.,
Macias v. Zenk, 495 F.3d 37, 44 (2nd Cir. 2007) (Notice of a claim alone is not sufficient after
Woodford v. Ngo, which permits suit only after “proper exhaustion” of the administrative
system); Bailey-El v. Federal Bureau of Prisons, 246 F.App’x. 105, 107-08 (3rd Cir. 2007)
(Plaintiff had no excuse for failing to follow procedures for appeals). A prisoner cannot fail to
13
file an administrative grievance, or abandon his efforts to complete the administrative process
altogether. Hartsfield v. Vidor, 199 F.3d 305, 309 (6th Cir. 1999).
Gilmore’s failure to properly exhaust his underlying Bivens grievances through the
available administrative remedies denied the agency the opportunity to address the issue at hand
at all administrative levels, denied the Court with a proper administrative record, and failed to set
forth a proper finding of facts. The allegations raised in the underlying Bivens claim, which
contain assertions of civil rights violations, should have been grieved separately through the
proper administrative remedy procedures. See Macias v. Zenk, 495 F.3d at 44 (Notice of a claim
alone is not sufficient after Woodford, which permits suit only after “proper exhaustion” of the
administrative system). 548 U.S. at 90. Since it is clear from the complaint, as amended, and
the exhibits attached thereto that Gilmore has not exhausted his administrative remedies,
dismissal is appropriate upon initial review. Jones v. Bock, 549 U.S. 199, 215 (2007) (quoting
Leveto v. Lapina, 258 F.3d 156, 161 (3d Cir. 2001) (“A complaint may be subject to dismissal
under Rule 12(b)(6) when an affirmative defense ... appears on its face.”).
III
Accordingly, for the reasons stated, it is hereby ORDERED as follows:
1.
Gilmore’s Complaint [R. 1] and Amended Complaint [R. 11] are DISMISSED
for Gilmore’s failure to exhaust his administrative remedies and this matter is STRICKEN
from the docket.
2.
Gilmore’s motion for the appointment of counsel [R. 13]; motion for a hearing
[R. 14]; and motion for emergency injunction [R. 16] are DENIED as moot.
3.
The Court will enter an appropriate judgment.
14
This 7th Day of November
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