Johnson v. Mill et al

Filing 36

MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 9/12/2017. (c/m 09/13/2017 - jf3s, Deputy Clerk)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND

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Southern Division 2311 SE? 1 2
EARL D. JOHNSON, #252-782, 335-615
Plaintiff,
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Case No. GJH-16-871

RONALD MILL, MCI-H,
RICHARD SARTIN,
THE DEPARTMENT OF PUBLIC
SAFETY AND CORRECTIONAL
SERVICES,'
OFFICER ANNE MADDOX,
Defendants.

MEMORANDUM OPINION
Plaintiff Earl D. Johnson is an inmate at the Maryland Correctional Training Center in
Hagerstown, Maryland. In this case, Johnson filed his Complaint, ECF No. 1, alleging
Defendants violated his constitutional right to due process by finding him guilty of prison rule
violations and imposing sanctions. Johnson also filed a self-styled "Motion Amended to Said
Summary Judgment," ECF No. 29, which will be treated as a Motion to Amend his Complaint
and granted. Defendants, the Department of Public Safety and Correctional Services ("DPSCS"),
CO II Ronald Mills, CO II Richard Sartin, and Hearing Office Anne Maddox, have filed a
Motion to Dismiss or, in the Alternative, Motion for Summary Judgment, ECF No. 30, and
Johnson filed a Response in Opposition, ECF No. 32. No hearing is necessary. Local Rule 105.6
(D. Md. 2016). For the following reasons, the Court grants Defendants' Motion to Dismiss or, in
the Alternative, Motion for Summary Judgment, ECF No. 30.

The docket shall be amended to reflect the agency's full name.

I.

BACKGROUND2
A. Factual Background
Johnson's Complaint is based on events that occurred during the time he was incarcerated

at the Maryland Correctional Institution-Hagerstown ("MCI-H"). Defendants filed affidavits and
prison records in support of their Motion for Summary Judgment. The exhibits indicate that on
July 6, 2014, Officer Stephens and Defendant Sartin escorted Johnson to the MCI-H recreation
hall for a strip search. ECF No. 30-2 at 7.3 During the escort, Sartin noticed Johnson's left hand
was closed in a fist. Sartin ordered Johnson to open his hand in order to ascertain whether he was
hiding anything. Id. Johnson opened and closed his left hand. Sartin observed an object between
Johnson's left ring finger and pinkie finger. Sartin ordered Johnson to unclench his hand and
separate his fingers. Sartin observed a piece of rubber glove containing a folded piece of paper
with a small orange strip inside. Sartin secured the paper with the orange strip, and the officers
conducted a strip search of Johnson. Id.
Sartin tested the orange strip with a MMC4 field test kit. Id. The strip tested positive for
Buprenorphine, a drug also known as Suboxone. The contraband was photographed. Id. Due to
its small quantity, the contraband could not be weighed. Sartin issued a Notice of Rule Violation
to Johnson, charging him with violating Rule 111 (possession or use of an unauthorized drug or
substance) and Rule 112 (possession or use of a drug or controlled dangerous substance). ECF
No. 30-3; see also ECF No. 30-2 at 3-13. Johnson acknowledges that on July 10, 2014, he
received a Notice of Rule Violation for possessing the controlled substance Buprenorphine.5
The facts relied on herein are either undisputed or viewed in the light most favorable to the non-movant.
Pin cites to documents filed on the Court's electronic filing system (CM/ECF) refer to the page numbers generated
by that system
Defendants do not explain the MMC field test kit, but the Court assumes from the context that it is used to identify
narcotics.
5 Defendants' exhibits show that the Buprenorphine was discovered on July 6, 2014. ECF No. 30-2 at 2-5.
Johnson's disciplinary hearing concerning his possession of the substance was held on July 10, 2014. Id. at. 21.
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ECF No. 1 at 6.
B. Procedural Background
On July 10, 2014, Defendant Hearing Officer Maddox conducted Johnson's disciplinary
hearing. ECF No. 30-2 at 21. Johnson did not request representation or witnesses. Johnson
pleaded not guilty and testified that the substance was found on the floor of his cell during a cell
shakedown and that the officers charged him because his cellmate was scheduled for release on
the next day. Id. at 21-23.
Hearing Officer Maddox's decision reads:
Hearing Officer considered Notice of Inmate Rule Violation by CO R. Sartin,
photo printouts, chain of custody form, and field test results as well as
presentation of Earl Johnson. Johnson's presentation is that Officer Sartin
found the strip on the cell floor and his cell buddy went home the next day so
he got the charge. Hearing Officer is not persuaded by Johnson's presentation.
Hearing Officer finds that Johnson was being escorted in the recreation hall
for a strip search when Officer Sartin noticed the inmates' [sic] hand clinched
shut, and when the officer asked Johnson to open his hand, a piece of rubber
glove with a [sic] orange strip concealed inside was recovered from Johnson's
hand. The issue did not occur in the cell and does not involve another inmate.
Officer Sartin tested the orange piece of strip using the MMC Buprenorphine
Test and got a positive result for Buprenorphine. Hearing Officer finds
Johnson guilty of rule 112.
Id. at 23; see also ECF No. 30-4 (Office Maddox stating that she found Johnson's testimony
unpersuasive). Maddox found Johnson not guilty of violating Rule 111. Id.
Maddox sanctioned Johnson with 225 days of segregation,6revoked 150 good time
credits, and indefinitely suspended his visitation privileges for violating Rule 112. Id. at 23-24.7
Johnson appealed Maddox's decision to Warden Richard Dovey, who affirmed the decision and
sanctions on July 23, 2014. Id. at 26. Johnson subsequently filed a number of Administrative

Institutional policy requires inmates sanctioned to more than 180 days of disciplinary segregation to either mail all
appliances and non-allowable/excess property to an external address provide by the inmate, or the property will be
destroyed. See ECF 30-2 at 44.
7 Johnson's visitation privileges were reinstated on July 11,2016. ECF No. 29-1 at 3.

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Remedy Procedure ("ARP") requests in July and August 2014, which were each dismissed.
These ARPs alleged that Defendant Mills improperly confiscated Johnson's property—ARP MCIH-560-14, ARP MCI-H-630-14—and that the test for Buprenorphine was improperly executed,
ARP MCI-H-0583-14, ARP MCI-H 0608-14, ARP MCI-H-0631-14, ARP MCI-H-0667-14. At
the same time, Johnson filed Inmate Grievance Office ("IGO") complaints in June 2014 and
February 2015. These were also dismissed. See ECF No. 30-5 at 3-4,43-47,78.
Johnson subsequently filed an action for replevin in Johnson v. Mills, Civil Case No.
1102-0002560-2014 in the District Court for Washington County. See ECF No. 30-2 at 48-49.
The case was dismissed, and Johnson filed an appeal, Civil Case No. 21-C-15-53102 (Cir. Ct.
Washington Cnty). Id.; ECF No 30-2 at 43-55. Johnson filed a separate action in the Circuit
Court for Washington County for review of the dismissal of IGO Grievance No. 20141600. In
the Matter of Earl Johnson, Jr. for Judicial Review of the Decision of the Secretary of the
DPSCS was assigned Civil Case 2I-C-15-52799. ECF No 30-2 at 42-55.
On February 5,2016, the Honorable Daniel P. Dwyer held a hearing on Johnson's
consolidated appeals. Id. Present were Johnson, who appeared pro se, Officer Ronald Mills, and
Assistant Attorney General Benjamin Legum. On February 19,2016, Judge Dwyer entered
judgment in Civil Case No. 21-C-15-53102, in favor of Defendant, Ronald Mills. Judge Dwyer
found substantial evidence to support the IGO decision, and affirmed. The Opinion and Order
reads in pertinent part:
Regarding the de novo appeal from the District Court, this Court is not convinced
by a preponderance of evidence that Mr. Johnson was wrongfully deprived of his
property by Officer Mills. Officer Mills was acting within the scope of his duties
following Division of Correction procedures. Officer Mills afforded Mr. Johnson
the opportunity to safeguard his possessions by having them mailed to someone
and Mr. Johnson simply declined that invitation. Therefore in the case 21-C-1553102, judgment is entered in favor of the Defendant, Ronald Mills.

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In case 21-C-15-52799, the Court finds that there is substantial evidence in this
record upon which the Inmate Grievance Office declined to grant Mr. Johnson the
relief he requested. Again, the record indicates that Officer Mills was following
the Division of Correction procedure. Mr. Johnson was not permitted to possess
his items of electronic personal property in segregation. Also, pursuant to DOC
regulations, they could not be stored for more than 180 days. Mr. Johnson could
have, but declined to provide an address where they could be safely mailed.
Therefore in that case the ruling of the Inmate Grievance Committee dated
December 8, 2014 administratively dismissing Mr. Johnson's grievance is found
to be supported by substantial evidence and is upheld.
Id. at 46.
Johnson disputes that the substance in his possession tested positive for Buprenorphine
and alleges that he requested copies of the drug test results and the chain of custody. Id. Further,
he complains that there was no retest of the sample. Johnson alleges that he was informed the test
results were missing from his case file. He claims he was improperly found guilty of prison rule
violations based on the test report. Id.; see also ECF No. 11; ECF No. 12. Johnson asserts that
the state judge erred in dismissing the case because the drug test did not return a positive result.
Id.
Johnson seeks $250 a day for "false solitary confinement" for 227 days; $250 a day for
each day he was denied visitation privileges; and $900 for the wrongful loss or destruction of his
property. Id.
STANDARD OF REVIEW
A. Motion to Dismiss
To survive a motion to dismiss under Fed. R. Civ. P. 12(b)(6), "a complaint must contain
sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'
Ashcroft v. lqbal, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the misconduct
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alleged." Iqbal, 556 U.S. at 678. "Threadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice." Id. (citing Twombly, 550 U.S. at 555)
("[A] plaintiffs obligation to provide the 'grounds' of his `entitle[ment] to relief requires more
than labels and conclusions, and a formulaic recitation of a cause of action's elements will not
do.").
The purpose of Fed. R. Civ. P. 12(b)(6) "is to test the sufficiency of a complaint and not
to resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses."
Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006) (citation and internal
quotation marks omitted). When deciding a motion to dismiss under Rule 12 (b)(6), a court
"must accept as true all of the factual allegations contained in the complaint," and must "draw all
reasonable inferences [from those facts] in favor of the plaintiff." E.I. du Pont de Nemours & Co.
v. Kolon Indus., Inc., 637 F.3d 435, 440 (4th Cir. 2011) (citations and internal quotation marks
omitted). The Court need not, however, accept unsupported legal allegations, see Revene v.
Charles County Comm'rs, 882 F.2d 870, 873 (4th Cir. 1989), legal conclusions couched as
factual allegations, Papasan v. Allain, 478 U.S. 265, 286 (1986), or conclusory factual
allegations devoid of any reference to actual events. United Black Firefighters of Norfolk v.
Hirst, 604 F.2d 844, 847 (4th Cir. 1979). Because Johnson is self-represented, his filings are
liberally construed. See Erickson v. Pardus, 551 U.S. 89, 94 (2007). But the Court must also
abide by its "affirmative obligation ... to prevent factually unsupported claims and defenses from
proceeding to trial." Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 526 (4th
Cir. 2002) (internal citations omitted). Accepting the facts as alleged in the Complaint as true,
see Aziz v. Alcolac, 658 F.3d 388, 390 (4th Cir. 2011), when reviewing a motion to dismiss, the
Court "may consider documents attached to the complaint, as well as documents attached to the

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motion to dismiss, if they are integral to the complaint and their authenticity is not disputed."
Sposato v. First Mariner Bank, No. CCB-12-1569, 2013 WL 1308582, at *2 (D. Md. Mar. 28,
2013). The Court may take judicial notice of state court documents pursuant to Fed. R. Evid. 201
and 803(8)(a)(1). The claims against Defendants DPSCS, Mills, Sartin, and Maddox in their
official capacities will be considered in the context of a Motion to Dismiss. Johnson's loss of
property claim will also be considered under this standard of review.
B. Motion for Summary Judgment
Defendants' motion is styled as a Motion to Dismiss, or in the Alternative, for Summary
Judgment under Fed. R. Civ. P. 56. If the Court considers materials outside the pleadings, the
Court must treat a motion to dismiss as one for summary judgment. Fed. R. Civ. P. 12(d). When
the Court treats a motion to dismiss as a motion for summary judgment, 141 parties must be
given a reasonable opportunity to present all the material that is pertinent to the motion.- Id.
When the moving party styles its motion as a "Motion to Dismiss, or in the Alternative, for
Summary Judgment," and attaches additional materials to its motion, the nonmoving party is, of
course, aware that materials outside the pleadings are before the Court, and the Court can treat
the motion as one for summary judgment. See Laughlin v. Metropolitan Wash. Airports Auth..
149 F.3d 253, 260-61 (4th Cir. 1998). Further, the Court is not prohibited from granting a
motion for summary judgment before the commencement of discovery. See Fed. R. Civ. P. 56(a)
(stating that the court "shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact" without distinguishing pre-or post-discovery).
Johnson was provided with a Roseboro notice, which advised him of the pendency of the
motion and that he was entitled to respond, ECF No. 10, and he did file a Response. See
Roseboro v. Garrison, 528 F.2d 309, 310 (4th Cir. 1975) (reasoning that pro se plaintiffs should

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be advised of their right to file responsive material to a motion for summary judgment). Thus, the
Court will consider his due process claim under the standard for summary judgment.
III. DISCUSSION
Defendants argue that Johnson's due process rights were not violated at the adjustment
hearing nor was he unconstitutionally deprived of his personal property. Defendants also raise
Eleventh Amendment immunity, res judicata, and qualified immunity8 as grounds for dismissal
of the claims against them or summary judgment in their favor. ECF No. 30 at 1-2.
A. Eleventh Amendment Immunity
Defendants assert that the federal claims against the DPSCS and the claims for damages
against Maddox, Sartin and Mill should be dismissed as barred by the Eleventh Amendment.
ECF No. 30-at 21. Under the Eleventh Amendment to the United States Constitution, a state, its
agencies, and departments are immune from suits in federal court brought by its citizens or the
citizens of another state, unless it consents. See Pennhurst State Sch. and Hosp. v. Halderman,
465 U.S. 89, 100 (1984). While the State of Maryland has waived its sovereign immunity for
certain types of cases brought in state courts, see Md. Code, State Gov't § 12-202(a), it has not
broadly waived its immunity to suit in federal court under the Eleventh Amendment. See Gray v.
Laws, 51 F.3d 426, 431-32 (4th Cir. 1995) (noting that "it is well established that an
unconsenting State is immune from suits brought in federal courts by her own citizens. . .
(internal citations omitted)). DPSCS is a state agency, see Md. Code. Ann., Corr. Servs. § 1101(f), and the claims against DPSCS will be dismissed because it is immune from suit under the
Eleventh Amendment.
Further, judgment against a public employee "in his official capacity" imposes liability

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Having concluded Defendants' actions do not constitute a constitutional violation, the Court does not reach the
qualified immunity defense.

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on the public entity, and is also precluded under the Eleventh Amendment where the state has
not consented to be sued in federal court. See Brandon v. Holt, 469 U.S. 464, 471-72 (1985)
(citing Monell v. New York Dept. of Soc. Serv., 436 U.S. 658, 690 n.55 (1978) (internal quotation
omitted)). The Complaint is silent as to whether the allegations are raised against individual
Defendants in their official or personal capacities, or both. To the extent Johnson claims against
Maddox, Sartin and Mill are made in their official capacities, these claims are tantamount to
claims against the State of Maryland, are barred by the Eleventh Amendment, and must be
dismissed.
B. Loss of Property Claim
To the extent Johnson's loss of property claim survives Eleventh Amendment immunity,
Defendants assert res judicata as an affirmative defense. Under the doctrine of res judicata, a
previous final judgment on the merits of an action precludes the parties, or those in privity with
those parties, from relitigating issues that were or could have been raised in the earlier action.
See Meekins v. United Transp. Union, 946 F.2d 1054, 1057 (4th Cir. 1991). When a federal court
litigant asserts claim preclusion based on a state court judgment, "[the] federal court must give to
[the] state court judgment the same preclusive effect as would be given that judgment under the
law of the State in which the judgment was rendered." Migra v. Warren City Sch. Dist. Bd. of
Educ., 465 U.S. 75, 81 (1984). Under Maryland law, res judicata, or claim preclusion, provides
grounds for dismissal if a defendant establishes that "(1) the present parties are the same or in
privity with the parties to the earlier dispute, (2) the claim presented is identical to the one
determined in the prior adjudication, and (3) there has been a final judgment on the merits."
Capel v. Countrywide Home Loans, Inc., No. WDQ-09-2374, 2010 WL 457534, at *3 (D. Md.
Feb. 3, 2010) (citing Anne Arundel County Bd. of Educ. v. Norville, 887 A.2d 1029, 1037 (Md.

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2005)).
In this case, Johnson's loss of property claims are precluded by the doctrine of res
judicata: (1) Johnson sued the same defendants in the state hearing; (2) Johnson raised the same
arguments (that his property was illegally taken); and (3) Judge Dwyer addressed and found no
merit to Johnson's claims that Property Officer Mills wrongfully deprived him of his personal
property. Judge Dwyer's Memorandum and Opinion constitutes a final judgment; therefore, res
judicata bars this claim.
C. Due Process Claims
Johnson alleges that he was not afforded substantive or procedural due process in this
case. The Court finds that he was given sufficient due process, and grants summary judgment to
Defendants on these claims.
1. Procedural Due Process
The procedural protections of the Due Process Clause only apply where a protected
liberty interest is implicated. In the prison context there are two different types of
constitutionally protected liberty interests which trigger due process protections. The first is
created when there is a state-created entitlement to an early release from incarceration. Bd. of
Pardons v. Allen, 482 U. S. 369, 381 (1987) (state created liberty interest in parole); Wolff v.
McDonnell, 418 U. S. 539, 557 (1974) (state created liberty interest in good conduct credits).
The second type of liberty interest is created by the imposition of an "atypical and significant
hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515
U. S. 472, 484 (1995).
Courts have previously held that periods of administrative segregation, even with
restrictive conditions, are not an "atypical and significant hardship" to trigger Due Process

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protections. See Incumaa v. Stirling, 791 F.3d 517, 527 (4th. Cir. 2015); Prieto v. Clarke, 780
F.3d 245, 249 (4th. Cir. 2015). Rather, inmates must make a greater showing of hardship in order
to meet this requirement. Incumaa, 791 F.3d at 527; Prieto, 780 F.3d at 249-51; Beverati v.
Smith, 120 F.3d 500, 504 (4th Cir. 1997). Johnson does not claim that the conditions of his
segregation confinement were so restrictive as to meet the "atypical and significant hardship"
standard in Sandin. As such, his procedural due process claim regarding his segregation is
denied.
Regarding his claims that he was deprived Procedural Due Process regarding his good
time credits, the Court finds that Johnson was afforded sufficient due process. Prisoners retain
rights under the Due Process Clause, but prison disciplinary proceedings are not part of a
criminal prosecution prisoners do not enjoy the full array of Procedural Due Process protections.
See Wolff v. McDonnell, 418 U.S. 539, 556 (1974) (citing Morrissey v. Brewer, 408 U.S. 471,
488 (1972)). In prison disciplinary proceedings where an inmate faces the possible loss of
diminution credits, he is entitled to certain due process protections. These include: (1) advance
written notice of the charges against him; (2) a written statement of the evidence relied on and
the reasons for taking any disciplinary action; (3) a hearing where he is afforded the right to call
witnesses and present evidence when doing so is not inconsistent with institutional safety and
correctional concerns, and a written decision; (4) the opportunity to have non-attorney
representation when the inmate is illiterate or the disciplinary hearing involves complex issues;
and (5) an impartial decision-maker. See Wolff 418 U.S. at 564-66, 592. As long as the hearing
officer's decision contains a written statemem of the evidence relied upon, due process is
satisfied. See Baxter v. Palmigiano, 425 U.S. 308, 322 n. 5 (1976). Due process is satisfied if the
disciplinary hearing decision was based upon "some evidence." Superintendent, Mass. Corr.

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Inst. v. Hill, 472 U.S. 445, 455 (1985). Federal courts do not review the correctness of a
disciplinary hearing officer's findings of fact. See Kelly v. Cooper, 502 F. Supp. 1371. 1376
(E.D. Va. 1980). The hearing officer's findings will be disturbed only if they are unsupported by
any evidence, or when wholly arbitrary and capricious. See Hill, 472 U.S. at 456; see also Baker
v. Lyles, 904 F.2d 925, 933 (4th Cir. 1990).
It is undisputed that Johnson received written notice of the charges, a hearing, the right to
call witnesses and present evidence, and a written decision. ECF No. 30-2 at 21-25. After the
hearing, Maddox issued a written decision which identified the exhibits she reviewed, a
summary of the parties' positions, and her finding that Johnson's testimony was unpersuasive.
Id This satisfies the "some evidence" standard. In a prison disciplinary hearing, prison officials
generally are entitled to rely on institutional test results, absent any evidence of unreliability or
irregularity in conducting the tests. See, e.g., Terry v. Dep't of Public Safety & Correctional
Services, Civil Action No. ELH-11-1686, 2012 WL 2564779, at *8 (D. Md. June 29, 2012)
(recognizing that a single drug test's results constituted "some evidence" to support prison
disciplinary conviction). Presented with a positive test result on which prison officials were
entitled to rely, Maddox was entitled to find the evidence sufficiently to constitute "some
evidence." The Court is satisfied that Johnson was not deprived of due process, and summary
judgment will be entered in favor of Defendants on this claim.
2. Substantive Due Process
Johnson also claims that he was not afforded sufficient Substantive Due Process. In the
context of prison disciplinary proceedings, substantive due process requires that the fact-finder's
decision be based on some evidence. Superintendent, Massachusetts Corr. Inst., Walpole v. Hill,
472 U.S. 445, 455 (1985). That standard can be met by an unswom statement of an unidentified

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confidential informant together with some indication of the informant's reliability. See Baker v.
Lyles, 904 F.2d 925, 932 (4th Cir. 1990). On the other hand, the allegation that the outcome of a
disciplinary hearing was based on false testimony, does not state a substantive due process claim.
See, e.g., Freeman v. Rideout, 808 F.2d 949, 953 (2d Cir. 1986). See also Kelly v. Cooper, 502 F.
Supp. 1371, 1376 (E.D. Va. 1980) (reasoning that the "court does not sit to review the factual
findings of prison disciplinary committees.").
Here, the Court finds that Officer Maddox's decision was based upon sufficient evidence.
In finding that Johnson had violated Rule 112, Officer Maddox relied on "Notice of Inmate Rule
Violation by CO R. Sartin, photo printouts, chain of custody form, and field test results as well
as presentation of Earl Johnson." ECF No. 30-2 at 23. Officer Maddox found Johnson's
presentation unpersuasive, and found that he had violated Rule 112. Id. The Court finds that this
was sufficient evidence for her to make her determination, and grants summary judgment for
Defendants on Johnson's substantive due process claims.
D. Violation of State Procedure
Johnson also attacks the procedures surrounding the test including chain of custody, lack
of lab retesting, weight of sample, and Sartin's certification to perform the field test. Viewing the
facts in the light most favorable to Johnson and assuming arguendo that a DOC rule or
regulation was violated, the Court still grants summary judgment for Defendants on these claims.
See Riccio v. County of Fairfax, 907 F.2d 1459, 1466 (4th Cir. 1990) ("a state does not
necessarily violate the Constitution every time it violates one of its rules."); Ewell v. Murray, 813
F. Supp. 1180, 1183 (W.D. Va. 1995) ("Even if state law creates a liberty interest, violations of
due process are to be measured against a federal standard of what process is due."). Failure to
follow regulations does not itself result in a constitutional violation. The law is settled that the

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failure to follow a prison directive or regulation does not give rise to a federal claim where, as
here, the constitutional requirements are met. See e.g. Myers v. Kelvenhagen, 97 F.3d 91, 94 (5th
Cir. 1996); see also Rivera v. Wohlrab, 232 F. Supp. 2d 117, 123 (S.D. N.Y. 2002). As such,
Defendants are entitled to summary judgment in their favor.
CONCLUSION
For these reasons, the Court will grant Defendants' Motion to Dismiss or for Summary
Judgment by separate Order.

Dated: September I 7-, 2017
ORGE J. HAZEL
United States District Judge

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