Joy v. Godair et al

Filing 51

OPINION ; signed by Judge Robert Holmes Bell (Judge Robert Holmes Bell, kcb)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
RANDY TYREASE JOY,
Plaintiff,
Case No. 1:16-cv-187
v.
HON. ROBERT HOLMES BELL
SCOTT GODAIR, et al.,
Defendants.
/
OPINION
Plaintiff brings an action alleging civil rights violations under 28 U.S.C. § 1983. The
matter is before the Court on Defendants Godair, Murdock, and the City of Mason’s motion
to dismiss, or in the alternative, motion for summary judgment. (ECF No. 37.) Plaintiff has
filed a response (ECF No. 48), and Defendants have filed a reply (ECF No. 49).
I.
On March 12, 2014, Defendant Godair, an officer with the City of Mason Police
Department, saw Plaintiff’s car traveling on US-127 in the passing lane without passing any
cars. After several minutes, Defendant Godair pulled over the car. When Plaintiff rolled
down his window, Defendant Godair smelled marijuana. Plaintiff gave Defendant Godair
his license, registration, and proof of insurance. Defendant Godair then asked Plaintiff to
step out of the vehicle, and Plaintiff refused. Plaintiff gave Defendant Godair his medical
marijuana card, and again, refused to step out of the vehicle. Defendant Godair returned to

his vehicle to wait for back up. Defendant Murdock, a Mason police officer, and Defendant
Spencer, a Michigan State trooper, then arrived. The officers approached Plaintiff’s car, and
asked Plaintiff to step out. Plaintiff complied, and Defendant Godair patted him down but
no weapons were found. Defendant Godair asked Plaintiff if there was any marijuana in the
car. At first Plaintiff denied this, but then he responded, “I might have a roach in there.”
Defendant Godair searched the car for marijuana, including a locked glove box where
Defendant Godair found a handgun. After finding the handgun, Defendants Godair and
Spencer placed Plaintiff in handcuffs. Defendant Godair continued to search the car and
found a bag of marijuana in between the passenger seat and the console. He also found two
alcohol bottles on the floor of the backseat. The passenger explained that the alcohol was
hers, but the marijuana belonged to Plaintiff. Defendants told Plaintiff that he was under
arrest for a concealed-weapon violation and possession of marijuana, and took him to Ingham
County Jail. Defendant Godair’s dash camera recorded most of this interaction. Upon
arrival at the jail, Defendant Godair removed Plaintiff’s handcuffs, and transferred custody
of Plaintiff to the Ingham County Sheriff’s Department. He also gave Plaintiff a ticket for
improper lane use. During a pat-down search at the jail, a small amount of marijuana was
found in one of Plaintiff’s pockets.
The Ingham County Prosecutor’s Office authorized a four-count felony warrant. A
magistrate judge signed and validated the warrant, and set a $45,000 bond. Defendant
Godair testified at the preliminary examination, and the court found that there was probable

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cause for all counts. Two months later, the Chief Deputy Assistant Prosecutor signed a
motion for nolle prosequi for all charges, and the court granted the motion to dismiss the case
with prejudice.
On July 5, 2016, the Chief Assistant Prosecutor for Ingham County sent a letter to the
Mason Police Chief, which explained why the office dismissed Plaintiff’s charges in 2014.
In April of 2014, the Ingham County Prosecutor issued a memorandum to all police agencies
regarding the constitutionality of the transporting marijuana statute, Mich. Comp. Laws
§ 750.474. He explained that, on March 4, 2014, a district court judge in Ingham County
found that this statute was unconstitutional. He also indicated that, moving forward, the
Ingham County Prosecutor’s Office would not support a finding of violation of transporting
marijuana as a basis for a stop, detention, or further search.
II.
Defendants filed a motion to dismiss under Rule 12(c), or alternatively, a motion for
summary judgment under Rule 56. (ECF No. 36.) “If, on a motion under Rule 12(b)(6) or
12(c), matters outside the pleadings are presented to and not excluded by the court, the
motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. P. 12(d).
Thus, because the Court will consider matters outside of the pleadings, it will construe this
as a motion for summary judgment.
The Federal Rules of Civil Procedure require the Court to grant summary judgment
“if the movant shows that there is no genuine dispute as to any material fact and the movant

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is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In evaluating a motion for
summary judgment the Court must look beyond the pleadings and assess the proof to
determine whether there is a genuine need for trial. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
In considering a motion for summary judgment, “the district court must construe the
evidence and draw all reasonable inferences in favor of the nonmoving party.” Martin v.
Cincinnati Gas & Elec. Co., 561 F.3d 439, 443 (6th Cir. 2009) (citing Jones v. Potter, 488
F.3d 397, 403 (6th Cir. 2007)). Nonetheless, a “plaintiff must do more than rely merely on
the allegations of her pleadings or identify a ‘metaphysical doubt’ or hypothetical
‘plausibility’ based on a lack of evidence; [a plaintiff] is obliged to come forward with
‘specific facts,’ based on ‘discovery and disclosure materials on file, and any affidavits[.]’”
Chappell v. City of Cleveland, 585 F.3d 901, 912 (6th Cir. 2009) (quoting Fed. R. Civ. P.
56(c); Matsushita, 475 U.S. at 586-87). The proper inquiry is whether the evidence is such
that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 252 (1986); see generally Street v. J.C. Bradford & Co., 886 F.2d
1472, 1476-80 (6th Cir. 1989).
III.
In Plaintiff’s complaint, he raises several violations of the Fourth and Fourteenth
Amendments, as well as violations of Michigan law. In Count One, he alleges false arrest
and false imprisonment under Michigan law. In Count Two, he alleges a Fourth Amendment

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excessive-force claim relating to the force used while handcuffed. In Count Three, Plaintiff
alleges a warrantless search and seizure in violation of the Fourth Amendment. In Count
Four, he alleges a Fourteenth Amendment excessive-force claim for handcuffing and a claim
of denial of medical treatment for alleged injuries from the handcuffs. In Count Five, he
alleges a malicious prosecution claim under state law. In Count Six, he alleges a Fourth
Amendment malicious prosecution claim. Finally, in Count Seven, he alleges a Monell claim
for liability against the City of Mason.
A. Qualified Immunity
Defendants argue that Officers Godair and Murdock are entitled to qualified immunity
on all of Plaintiff’s federal claims. Qualified immunity is an affirmative defense that extends
to government officials performing discretionary functions. See Harlow v. Fitzgerald, 457
U.S. 800, 817-18 (1982). Government officials acting within the scope of their authority are
entitled to qualified immunity as long as their conduct does “not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.” Id. at
818. It protects “all but the plainly incompetent or those who knowingly violate the law.”
Humphrey v. Mabry, 482 F.3d 840, 847 (6th Cir. 2007). The Sixth Circuit applies a two-part
test to determine whether a government official is entitled to the defense of qualified
immunity: (1) whether the plaintiff has shown a violation of a constitutionally-protected
right; and, if so, (2) whether that right was clearly established such that a reasonable official
would have understood that his behavior violated that right. Shehee v. Luttrell, 199 F.3d 295,

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299-300 (6th Cir. 1999). The purpose of the clearly-established prong is to ensure that
officials are on notice that their alleged conduct was unconstitutional. Baynes v. Cleveland,
799 F.3d 600, 610 (6th Cir. 2015) (citing Hope v. Pelzer, 536 U.S. 730, 739 (2002)). The
salient question is “‘whether the state of the law [at the time of the action giving rise to the
claim] gave respondents fair warning that their alleged treatment of [the plaintiff] was
unconstitutional.’” Id. (quoting Hope, 536 U.S. at 741). In other words, “in the light of preexisting law the unlawfulness must be apparent.” Hope, 536 U.S. at 739 (citing Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).
After a defendant raises a qualified-immunity defense, the burden shifts to the plaintiff
to demonstrate that the government official violated a right that was so clearly established
“that every ‘reasonable official would have understood that was he [was] doing violate[d]
that right.’” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011) (quoting Anderson, 483 U.S. at
640). At a minimum, to survive a motion for summary judgment, a plaintiff must “offer
sufficient evidence to create a ‘genuine issue of fact,’ that is, ‘evidence on which [a] jury
could reasonably find for the plaintiff.” McDonald v. Flake, 814 F.3d 804, 812 (6th Cir.
2016) (quoting Anderson, 477 U.S. at 252). Thus, if the Court determines that the Plaintiff’s
evidence “would reasonably support a jury’s finding that the defendant violated a clearly
established right, the court must deny summary judgment.” Id. (citing DiLuzio v. Vill. of
Yorkville, 796 F.3d 604, 609 (6th Cir. 2015)).

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B. Excessive Force and Denial of Medical Treatment Claims
It is clearly established that excessively-forceful handcuffing violates the Fourth
Amendment. Baynes v. Cleland, 799 F.3d 600, 613 (6th Cir. 2015) (collecting cases); see
also Walton v. City of Southfield, 995 F.2d 1331, 1342 (6th Cir. 1993). To establish such a
claim, Plaintiff “must offer sufficient evidence to identify a genuine issue of material fact
that (1) he complained the handcuffs were too tight; (2) the officer ignored those complaints;
and (3) the plaintiff experienced ‘some physical injury’ resulting from the handcuffing.”
Morrison v. Bd. of Trustees of Green Twp., 583 F.3d 394, 401 (6th Cir. 2000).
Defendants argue that the dash-camera video shows that Plaintiff never complained
that the handcuffs were too tight. Plaintiff responds that the video’s audio is poor quality,
and it is impossible to determine if Plaintiff made a complaint simply from watching the
video. When Plaintiff is arrested by Defendants Godair and Spencer in the video, it is
difficult to hear whether Plaintiff made a complaint about the tightness of the handcuffs.
Plaintiff also explains that the video does not show the entire exchange, and ends when the
patrol car pulls inside the sally port at the jail but before Plaintiff is removed from the car.
In addition, Plaintiff submitted an affidavit in which he states that he told Defendants that
his wrists were injured by the tight handcuffs, but the handcuffs were not removed until he
was booked at the jail. (Pl’s Resp. Br., Ex. A, ECF No. 48-2, PageID.418.) In this affidavit,
Plaintiff also explains that he indicated that his wrists had been harmed, and requested
medical treatment, but he was ignored. It appears that there is a genuine dispute of material

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fact as to whether Plaintiff complained that the handcuffs were too tight, and there is
evidence that would reasonably support a jury’s finding that Defendant Godair violated this
clearly-established right. Therefore, Defendant Godair is not entitled to qualified immunity
on this claim.
In addition, Plaintiff raises Fourteenth Amendment claims for tight handcuffs and
refusal to provide medical care while in jail. The Sixth Circuit has consistently held that the
Fourth Amendment, not the Fourteenth Amendment, prohibits unduly-tight handcuffing
during an arrest. Baynes, 799 F.3d at 610. Thus, Plaintiff has not established that this claim
is a clearly-established right under the Fourteenth Amendment, and Defendants are entitled
to qualified immunity.
Moreover, Plaintiff does not allege that Defendants Godair or Murdock denied him
medical care. Rather, he alleges that he requested medical care while in jail. (Compl., ¶ 21,
ECF No. 1, PageID.4.) Once Plaintiff was booked at the jail, he was placed under the care
and custody of the Ingham County Sheriff. Defendants Godair and Murdock are not
employees of the Ingham County Sheriff, and do not have control or authority over
operations at the jail. Plaintiff has not pleaded that Defendants Godair or Murdock deprived
him of medical care or that they were deliberately indifferent to his medical needs, let alone
supported this claim with specific facts to survive a motion for summary judgment. Thus,
this claim is dismissed against Defendants Godair and Murdock.

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C. Illegal Search and Seizure Claim
Defendants argue that, given the undisputed facts and circumstances, a reasonable
officer would not have believed that the search of the car violated any clearly-established
constitutional rights. In order for a right to be clearly established, the “question must be
decided by either the highest state court in the state where the case arose, by a United States
Court of Appeals, or by the Supreme Court.” Robinson v. Bibb, 840 F.2d 349, 351 (6th Cir.
1988). At the time of Defendants’ actions, there were no Supreme Court, Sixth Circuit, or
Michigan Supreme Court decisions holding that Mich. Comp. Laws § 750.474, one of the
statutes under which Plaintiff was charged, was unconstitutional. Plaintiff argues that,
because there was a binding district court decision prior to Plaintiff’s arrest, Defendants are
not entitled to qualified immunity. Yet Plaintiff cites no higher authority in support of this
argument.
An officer may legally stop a car if he has probable cause to believe that a civil traffic
violation has occurred. United States v. Blair, 524 F.3d 740, 748 (6th Cir. 2008) (citing
United States v. Sanford, 476 F.3d 391, 394 (6th Cir. 2007)). After a lawful traffic stop, an
officer’s “detection of the smell of marijuana in an automobile can by itself establish
probable cause for a search” of the car under the automobile exception. United States v.
Elkins, 300 F.3d 638, 659 (6th Cir. 2002). Once an officer has probable cause to search a
vehicle, the officer can search any containers in the vehicle, as long as they are within the

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scope of the search and the officer has probable cause to believe that they contain contraband
or evidence. See California v. Acevedo, 500 U.S. 565, 579-80 (1991) (citing United States
v. Ross, 465 U.S. 798, 824 (1982)).

This includes locked compartments in

automobiles, like a glove box. See Acevedo, 500 U.S. at 581 (Scalia, J., concurring); see also
United States v. Galaviz, 645 F.3d 347, 357 (2011) (collecting cases to show that the
automobile exception provides officers with the authority to enter a locked car).
Plaintiff already fully litigated whether Defendant Godair had probable cause for the
initial traffic stop. He fought the ticket at a formal hearing, cross-examined Defendant
Godair, and had the opportunity to present witnesses and make argument. He was found
responsible for traffic citation, and paid the ticket. (Hr’g Tr., ECF No. 37-9.) As a result,
Plaintiff is collaterally estopped from arguing lack of probable cause for the traffic stop. See
Coogan v. City of Wixom, 820 F.2d 170, 174-75 (6th Cir. 1987), overruled on other grounds
by Frantz v. Vill. of Bradford, 245 F.3d 869, 874 (6th Cir. 2001); see also Pinckney v.
Traviglia, No. 1:11-CV-290, 2012 WL 4464562, at *9 (W.D. Mich. Sept. 26, 2012) (holding
that a civil infraction ticket precluded a later challenge in a § 1983 action for lack of probable
cause under the doctrine of collateral estoppel). Thus, there is no genuine dispute of material
fact that Defendant Godair had probable cause for the initial traffic stop.
During the lawful traffic stop, Defendant Godair smelled marijuana coming from
inside Plaintiff’s car. This provided probable cause to search the car for contraband under
the automobile exception. See Caroll v. United States, 267 U.S. 132, 153 (1925); see also

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Stacey v. Emery, 97 U.S. 642, 645 (1878) (defining probable cause as “[i]f the facts and
circumstances before the officer are such to warrant a man of prudence and caution in
believing that the offense has been committed, it is sufficient”). Although Plaintiff showed
Defendant Godair his medical marijuana card, under Mich. Comp. Laws § 750.474, it was
still unlawful to transport marijuana in the passenger compartment of a motor vehicle. It was
also illegal under federal law to possess or transport marijuana, regardless of the medical
marijuana card. See United States v. Oakland Cannabis Buyers’ Co-op, 532 U.S. 483, 491
(2001) (holding that no implied medical necessity exception exists to the Controlled
Substances Act’s marijuana prohibitions). At the preliminary examination, Defendant Godair
testified that he smelled marijuana coming from the car. Moreover, during the dash-camera
video, Plaintiff admits to smoking marijuana in his car earlier that day, and explains that
there may be a leftover “roach” in the car. Based on such evidence, a man of prudence and
caution would believe that an offense has been committed.
Further, during the video, Defendant Godair questioned Plaintiff as to why his glove
box was now locked when it had been unlocked a few minutes earlier when Plaintiff
retrieved his registration and insurance. (ECF No. 37-3.) Under the totality of the
circumstances, Defendant Godair had probable cause to search the locked glove box for
marijuana given the smell of marijuana in the car, Plaintiff’s admission that there may be a
roach in the car, and the fact that Plaintiff locked the glove box after he was stopped.
Plaintiff admitted that he had the key to the glove box in his pocket. Although Plaintiff said

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that he did not authorize the search of the glove box, Defendant Godair had probable cause
to search it, so he did not need Plaintiff’s consent. Plaintiff has failed to show that the search
violated Plaintiff’s clearly-established Fourth Amendment rights. Thus, Defendants Godair
and Murdock are entitled to qualified immunity on this claim.
D. Malicious Prosecution Claim
To establish a malicious prosecution claim under the Fourth Amendment, Plaintiff
must show (1) a criminal prosecution was initiated against him and Defendants made,
influenced, or participated in the decision to prosecute; (2) there was a lack of probable cause
for the prosecution; (3) as a consequence of the legal proceeding, Plaintiff suffered a
deprivation of liberty, apart from the initial seizure; and (4) the criminal proceeding was
resolved in Plaintiff’s favor. Sykes v. Anderson, 625 F.3d 294, 308 (6th Cir. 2010) (internal
citations omitted).
In an attempt to establish a lack of probable cause for prosecution, Plaintiff makes the
same arguments as his illegal search and seizure claim. As discussed above, Defendant
Godair had probable cause to justify the search of Plaintiff’s car. Moreover, at the
preliminary examination, the magistrate judge found probable cause for all counts. (Prelim.
Examination Hr’g Tr., ECF No. 37-5, PageID.262.) There is no genuine dispute of material
fact as to whether there was probable cause for the prosecution, so Plaintiff’s Fourth
Amendment malicious-prosecution claim is dismissed.

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E. Plaintiff’s State Law Claims
Plaintiff also alleges two state-law claims for false arrest and imprisonment, and
malicious prosecution. In Michigan, governmental immunity is available if a defendant can
show (1) that he was acting in the course of his employment and at least reasonably believed
that he was acting within the scope of his authority, (2) his actions were discretionary, and
(3) he acted in good faith. Odom v. Wayne Cty., 760 N.W.2d 217, 218 (Mich. 2008).
“Under Michigan law, ‘[t]o prevail on a claim of false arrest or false imprisonment,
a plaintiff must show that the arrest was not legal, i.e. the arrest was not based on probable
cause.’” Hoover v. Walsh, 682 F.3d 481, 501 (6th Cir. 2012) (quoting Peterson Novelties,
Inc. v. City of Berkley, 672 N.W.2d 351 (Mich. Ct. App. 2003)). “‘If the arrest was legal,
there has not been a false arrest or false imprisonment,’ regardless of the possibility of
conviction.” Id. As discussed above, Defendant Godair had probable cause to search
Plaintiff’s car. Upon searching the car, Defendant Godair found a handgun in the locked
glove box, in violation of Mich. Comp. Laws § 750.227, carrying a concealed weapon, and
Mich. Comp. Laws § 750.224f, possession of a firearm by a felon. After finding the
handgun, Defendants Godair and Spencer arrested Plaintiff. This was a lawful arrest,
supported by probable cause. See United States v. Watson, 423 U.S. 411, 423-24 (1976)
(holding that a warrantless public arrest based on probable cause did not violate the Fourth
Amendment). There is no genuine dispute of material fact as to whether Plaintiff was falsely

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arrested or falsely imprisoned. Therefore, this claim is dismissed against Defendants Godair
and Murdock.
In Michigan, to support a malicious prosecution claim, Plaintiff “must show an
absence of probable cause, and he must show ‘malice.’” Newman v. Twp. of Hamburg, 773
F.3d 769, 773 (6th Cir. 2014) (citing Matthews v. Blue Cross & Blue Shield of Mich., 572
N.W.3d 603, 609-10 (Mich. 1998)). Malice requires “evidence that the officer ‘knowingly
sw[ore] to false facts . . . without which there is no probable cause.” Id. (quoting Payton v.
City of Detroit, 536 N.W.2d 233, 242 (Mich. 1995)). It is more demanding than establishing
mere recklessness. Id. Plaintiff’s state-law malicious prosecution fails for the same reason
as his Fourth Amendment claim; there is no genuine dispute of material fact that there was
probable cause for Plaintiff’s prosecution. In addition, Plaintiff has not introduced evidence
to show malice. Thus, this claim is dismissed against Defendants Godair and Murdock.
Moreover, Defendants acted in the course of their employment, reasonably believed
that they were acting within the scope of their authority, performed discretionary acts, and
acted in good faith. Therefore, Defendants are also entitled to governmental immunity on
both claims.
F. Claims against Defendant Murdock
An officer may only be liable under § 1983 for his own unconstitutional behavior. See
Miller v. Calhoun Cty., 408 F.3d 803, 817 n.3 (6th Cir. 2005) (“Because § 1983 liability
cannot be imposed under a theory of respondeat superior, proof of personal involvement is

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required for a supervisor to incur personal liability.”) Plaintiff has not shown any
constitutional violation as to Defendant Murdock—he did not arrest or handcuff Plaintiff,
search Plaintiff’s car, or transport Plaintiff to the jail. Plaintiff has failed to support any of
his allegations against Defendant Murdock such that a jury could find in favor of Plaintiff.
Thus, all of Plaintiff’s claims against Defendant Murdock are dismissed.
G. Municipal Liability Under Monell
A municipality can be liable under § 1983 only where its policies are the “moving
force [behind] the constitutional violation.” Monell v. NYC Dep’t of Soc. Servs., 436 U.S.
658, 694 (1978); Polk Cnty. v. Dodson, 454 U.S. 312, 326 (1981). As such, a local
governing body “may not be sued under §1983 for an injury inflicted solely by its employees
or agents.” Id. Rather, “it is when execution of a government’s policy or custom, whether
made by its lawmakers or by those who edicts or acts may fairly be said to represent official
policy, inflicts the injury that the government as an entity is responsible under § 1983.” Id.
In addition to policy or custom, the inadequacy of police training may serve as a basis for
§ 1983 liability only where the failure to train amounts to deliberate indifference to the rights
of persons with whom the police come into contact. Canton v. Harris, 489 U.S. 378, 388
(1989). The question is “whether the training program is adequate; and if it is not, the
question becomes whether such inadequate training can justifiably be said to represent ‘city
policy.’” Id. at 390.

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Moreover, Monell liability attaches only to constitutional violations, and not to statelaw violations. See Monell, 436 U.S. at 691. Although the state district court held that Mich.
Comp. Laws § 750.474 was unconstitutional, it did not determine that the law violated due
process or any other federal rights. Rather, the court held that the statute violated the
Michigan constitution. As such, any claims for liability to the city arising from this statecourt decision are not available under Monell.
In his complaint, Plaintiff alleges that the city’s customs, practices, and policies,
including failure to supervise, train, control, and/or discipline officers, show that it acted
recklessly or with deliberate indifference to constitutional rights. But Plaintiff has failed to
show facts supporting a constitutional violation against individual officers with respect to
Plaintiff’s claims of illegal search and seizure, denial of medical care, and malicious
prosecution. Without a constitutional violation by an individual officer, Plaintiff cannot
succeed in his claim against the city. Wilson v. Morgan, 477 F.3d 326, 340 (6th Cir. 2007)
(citing City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986)). Therefore, these claims are
dismissed against the city.
Although there is a genuine dispute of material fact as to Plaintiff’s excessive force
claim against Defendant Godair, Plaintiff relies upon conclusory, boilerplate language
alleging the city’s failure to train and supervise on the proper use of force. Plaintiff argues
that he has satisfied the minimum pleading requirements, and he should be allowed to finish
discovery. However, Plaintiff has not pleaded facts that would allow the Court to draw the

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reasonable inference that the city has acted unlawfully, see Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009), nor has he presented any facts to support his conclusory allegation. Thus, the
city’s motion for summary judgment is granted.
IV.
To conclude, the Court will grant Defendants Godair, Murdock, and the City of
Mason’s motion for summary judgment on Counts 1, 3, 4, 5, 6, and 7. Plaintiff’s Fourth
Amendment excessive-force claim in Count 2 remains because there is a genuine dispute of
material fact as to whether Defendants violated Plaintiff’s clearly-established constitutional
rights. Defendant Spencer did not join the motion nor has he filed his own motion for
summary judgment, so the claims against him will remain even though it appears that the
Court’s above analysis would apply equally to his conduct.
An order will enter in accordance with this opinion.

Dated: December 19, 2016

/s/ Robert Holmes Bell
ROBERT HOLMES BELL
UNITED STATES DISTRICT JUDGE

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