Daywitt et al v. Minnesota Department of Human Services et al
Filing
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ORDER ADOPTING REPORT AND RECOMMENDATION AS MODIFIED 32 . Based on the foregoing, and on all the files, records and proceedings herein, the Court OVERRULES the objections 34 36 and ACCEPTS the R&R AS MODIFIED 32 . IT IS HEREBY ORDERED THAT: 1. The R&R 32 is ADOPTED AS MODIFIED; 2. Defendants' Motion to Dismiss Plaintiff's Complaint 19 is GRANTED as follows: a. Count 1, to the extent that it asserts a claim against MSOP and the Minnesota Department of Human Services, individua lcapacity claims against Defendants Kulas, Joslin, Leivian, Vaineo, and the 1E clinical team for injunctive relief, and officialcapacity claims against Defendants Kulas, Joslin, Leivian, Vaineo, and the 1E clinical team, be DISMISSED WITH PREJUDICE; b. Count 1, to the extent that it asserts individualcapacity claims against Defendants Kulas, Joslin, Leivian, Vaineo, and the 1E clinical team for monetary relief, be DISMISSED WITHOUT PREJUDICE; c. Count 2, to the extent that it asserts a claim aga inst MSOP and the Minnesota Department of Human Services, individualcapacity claims against Defendants Kulas, Joslin, Leivian, Vaineo, and the 1E clinical team, official capacity claims against Defendants Kulas, Joslin, Leivian, Vaineo, and the 1E cl inical team for monetary relief, and any claim for violation of the Minnesota Constitution, be DISMISSED WITH PREJUDICE; d. Count 2, to the extent that it alleges officialcapacity claims against Defendants Kulas, Joslin, Leivian, Vaineo, and the 1E c linical team for injunctive relief for a violation of the Equal Protection Clause of the 14th Amendment to the United States Constitution, be DISMISSED WITH PREJUDICE; and e. Count 3 be DISMISSED WITH PREJUDICE. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion) Signed by Judge Nancy E. Brasel on 3/29/2019. (KMW)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
KENNETH STEVEN DAYWITT and
KENNETH GERNARD PARKS,
Plaintiffs,
v.
MINNESOTA DEPARTMENT OF
HUMAN SERVICES, MINNESOTA SEX
OFFENDER PROGRAM, SARA KULAS,
JUSTIN JOSLIN, TARA OSBORNE
LEIVIAN, NICOLE VAINEO, and 1E
CLINICAL TEAM, in their individual
and official capacities,
Defendants.
Case No. 17‐CV‐5574 (NEB/TNL)
ORDER ADOPTING REPORT AND
RECOMMENDATION AS MODIFIED
Plaintiffs, who are civilly committed to the Minnesota Sex Offender Program, have
brought various claims because Defendants denied their request to be roommates at the
program based on safety concerns. In a Report and Recommendation dated December
14, 2018 [ECF No. 32 (“R&R”)], United States Magistrate Judge Tony N. Leung
recommended that Defendants’ motion be granted in part and denied in part. Both
parties filed objections to the R&R and replies to the objections. [ECF Nos. 36 (“Pl.’s
Obj.”), 38 (“Def. Reply”), 34 (“Def. Obj.”), 39 (“Pl. Reply”).] For the reasons set forth
below, the Court now overrules Plaintiffs’ objection, accepts Defendants’ objection and
adopts the R&R, as modified, consistent with this order.
1
BACKGROUND
The facts are clearly set forth in the R&R and are incorporated by reference for
purposes of the Plaintiffs’ and Defendants’ objections. In short, Plaintiffs Daywitt and
Parks are civilly committed to the Minnesota Sex Offender Program (“MSOP”). [ECF No.
1 (“Compl.”) ¶¶ 5‐6, 22.] Plaintiffs were previously, but are no longer, involved in a
romantic relationship.1 (Compl. ¶ 24.) Plaintiffs would like to and have requested to
become roommates, but Defendants denied the request. (Compl. ¶¶ 29, 27‐2.)2 Plaintiffs
filed this action seeking monetary and injunctive relief, alleging that Defendants’ decision
to deny Plaintiffs’ request to be roommates violates their civil rights. Specifically,
Plaintiffs allege that Defendants’ denial of their roommate request violated (1) the
Minnesota Human Rights Act, Minn. Stat. §§ 363A.01, et seq. and (2) the Equal Protection
Clause of the United States Constitution, U.S. Const. amend. XIV, § 1, and the equivalent
protections under the Minnesota Constitution, Minn. Const. art. I, § 2. (See gen. Compl.)
Plaintiffs also seek injunctive and declaratory relief pursuant to 42 U.S.C. § 2000a‐3. (Id.)
The facts of this case are largely undisputed. However, in their reply to Defendants’
objection, Plaintiffs assert that they have not been in a relationship for seven years, not
“four (4) plus years ago” as stated in the Complaint. (See Compl. ¶ 24.) For the purposes
of this Motion to Dismiss, the Court must consider the allegations as stated in the
Complaint while acknowledging that the Complaint was filed in 2017, which would
account for the difference in timing.
2 The Court notes that there appears to be a numbering error in the Plaintiffs’ Complaint
whereby paragraphs 27‐30 appear twice. For clarity, the Court will refer to these
paragraphs as 27‐1 and 27‐2, etc.
1
2
Plaintiffs previously brought a similar action, which was ultimately dismissed. See
Daywitt v. Minnesota Dep’t of Human Services, No. 16‐cv‐648, 2017 WL 8947245, at *1 (D.
Minn. Jan. 27, 2017), report and recommendation adopted as modified by 2017 WL 1406374 (D.
Minn. Apr. 20, 2017). In the prior case, the Court dismissed Plaintiffs’ Civil Rights Act
claims and declaratory judgment claim with prejudice and dismissed Plaintiffs’ equal
protection claim under 42 U.S.C. § 1983 without prejudice. (See id.) The Court declined to
exercise jurisdiction over Plaintiffs’ state law MHRA claim and dismissed that claim
without prejudice. (See id.)
ANALYSIS
I.
Standard of Review
Once a magistrate judge’s report and recommendation is filed, a party may “serve
and file specific written objections to the proposed findings and recommendations.” Fed.
R. Civ. P. 72(b)(2); D. Minn. LR 72.2(b). If a party objects to a magistrate judge’s report
and recommendation, the Court “shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection is
made.” 28 U.S.C. § 636(b)(1)(C). This court may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate judge. Id. If no party has
objected to the R&R the Court reviews it for clear error. See Fed. R. Civ. P. 72(b); Grinder
v. Gammon, 73 F.3d 793, 795 (8th Cir. 1996) (per curiam). The Court has conducted a de
novo review of the record for those specific portions of the R&R to which objection has
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been made, including a review of the arguments and submissions of counsel, pursuant
to 28 U.S.C. § 636(b)(1), Fed. R. Civ. P. 72(b)(2), and Local Rule 72.2(b). The Court reviews
the sections of the R&R to which no objection has been made for clear error.
II.
The Parties’ Objections
Plaintiffs accept the majority of Judge Leung’s R&R recommending dismissal of
their claims, but make the following objections: (1) Plaintiffs contend Judge Leung erred
in failing to sanction the Defendants (by dismissing their motion) for a failure to meet
and confer prior to the motion; and (2) Plaintiffs contend the R&R addresses a claim
brought pursuant to the Civil Rights Act of 1964, which Plaintiffs argue they did not raise
in their complaint. Plaintiffs state that they “would not disagree with the remainder of
the R&R’s conclusions given the case law cited for reasoning of dismissal.” (See Pl.’s Obj.
at 2–3.)
For their part, Defendants request that the Court adopt the R&R in its entirety,
with the exception of Judge Leung’s recommendation to deny Defendants’ motion to
dismiss Plaintiffs’ Section 1983 Equal Protection Claim against the individual Defendants
in their official capacity. (Def. Obj. at 1 n.1.)
As an initial matter, having reviewed the R&R for clear error with respect to the
sections to which no objection has been made, the Court finds no clear error as to the
Judge Leung’s recommendation that the Eleventh Amendment bars Plaintiffs’ state and
federal claims against MSOP and the Minnesota Department of Human Services,
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Plaintiffs’ MHRA claim against the individual Defendants in their official capacity,
Plaintiffs’ MHRA claim for monetary relief against the individual Defendants in their
individual capacities, Plaintiffs’ federal law claims against the individual Defendants in
their official capacity for monetary relief, and Plaintiffs’ federal law claims against the
individual Defendants in their individual capacity for injunctive and declaratory relief.
(See R&R at 24.)
The Court also finds no clear error in the R&R’s recommendation that the doctrine
of qualified immunity bars Plaintiffs’ claim under Section 1983 for monetary relief against
the individual Defendants acting in their individual capacity, and Plaintiffs’ Section 1983
claim, to the extent it alleges a violation of the Equal Protection Clause of the Minnesota
Constitution, also fails because Section 1983 does not provide a cause of action for
violations of the Minnesota Constitution. (See id.)
Finally, to the extent that Plaintiffs assert a claim for injunctive and declaratory
relief under Title II of the Civil Rights Act of 1964, the Court finds no clear error in the
R&R’s recommendation to dismiss that claim.3 The Court below addresses each of the
objections made.
The Court notes that Plaintiffs deny having brought such a claim. (See Pl.’s Obj. at 3.)
Further, in the prior litigation, the Court dismissed Plaintiffs’ Civil Rights Act claims and
declaratory judgment claim with prejudice. (See Case No. 16‐CV‐648 (WMW/FLN)).
3
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III.
Local Rule 7.1’s Meet and Confer Requirement
Plaintiffs object to the R&R, arguing that the Defendants’ failure to meet and
confer, required by Local Rule 7.1, warrants denial of Defendants’ motion to dismiss, and
thus, that Judge Leung should not have considered Defendants’ motion. Local Rule 7.1(a)
states that “[b]efore filing a motion . . . the moving party must, if possible, meet and confer
with the opposing party in a good‐faith effort to resolve the issues raised by the motion.”
Defendants assert that a meet and confer that occurred on October 20, 2016 in conjunction
with the prior litigation satisfied LR 7.1(a) for their current motion to dismiss. Judge
Leung’s R&R addressed this issue in a footnote, admonishing Defendants. (R&R at 4 n.
1.)
Defendants argue that Judge Leung’s determination to consider their motion to
dismiss was within the court’s discretion. This Court agrees. Plaintiffs cite no caselaw
standing for the proposition that a failure to meet and confer automatically results in the
denial of a party’s motion. On the contrary, this district has previously declined to
dismiss a movant’s motion for such a failure. See, e.g., Dutch Lake Holdings, LLC v.
Sunnybrook Homeowners Assn, Inc., No. 13‐cv‐538 (JNE), 2013 WL 3338783, at *2 n.1 (D.
Minn. July 2, 2013) (unpublished) (declining to dismiss movant’s motion for failure to
comply with Local Rule 7.1(a)’s meet‐and‐confer requirement); First Fin. Sec., Inc. v. Lee,
No. 14‐cv‐1843 (PJS/SER), 2016 WL 881003, at *7 n.10 (D. Minn. Mar. 8, 2016)
(unpublished) (finding that the magistrate judge acted within his discretion in excusing
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movant’s failure to meet and confer and ruling on the merits of the motion). Because it
was within Judge Leung’s discretion to consider the motion to dismiss, Plaintiffs’
objection on this basis is overruled.
IV.
Plaintiffs’ Federal Equal Protection Claim
After review for clear error, the only remaining claim is Plaintiffs’ Section 1983
claim for injunctive relief against the individual Defendants in their official capacity,
based on a violation of the federal equal protection clause.4 (See R&R at 25; see also Compl.
¶¶ 56‐62, alleging Plaintiffs “have been subjected to unequal protection based on the facts
and allegations set forth above.”)
Section 1983 provides that “[e]very person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State . . . , subjects, or causes to be
subjected, any citizen of the United States . . . to the deprivation of any rights, privileges,
or immunities secured by the Constitution and laws, shall be liable to the party injured.”
42 U.S.C. § 1983. The “purpose of § 1983 is to deter state actors from using the badge of
their authority to deprive individuals of their federally guaranteed rights and to provide
relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161 (1992).
As stated above, Plaintiffs also bring a claim under the Minnesota Constitution’s
counterpart to the Fourteenth Amendment’s Equal Protection Clause. Judge Leung
correctly recommends that Plaintiffs’ Section 1983 claim, insofar as it alleges a violation
of the Minnesota Constitution, be dismissed with prejudice because Section 1983 does not
provide a cause of action for violations of the Minnesota Constitution. See generally 42
U.S.C. § 1983; see also Daywitt, 2017 WL 8947245 at *4.
4
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The Equal Protection Clause of the Fourteenth Amendment prohibits States from
denying “to any person within its jurisdiction the equal protection of the laws.” U.S.
Const. amend. XIV, § 1. “The Equal Protection Clause keeps governmental
decisionmakers from treating disparately persons who are in all relevant respects
similarly situated.” Bills v. Dahm, 32 F.3d 333, 335 (8th Cir. 1994). Plaintiffs must therefore
“demonstrate that they were treated differently from others similarly situated to them.”
Arnold v. City of Columbia, Mo., 197 F.3d 1217, 1220 (8th Cir. 1999) (citing to Keevan v. Smith,
100 F.3d 644, 647–48 (8th Cir. 1996)); see also Klinger v. Dep’t of Corr., 31 F.3d 727, 731 (8th
Cir. 1994).
The factual allegations underpinning the equal protection claim appear to be as
follows:
“It is alleged that the Defendants unlawfully discriminated against
Plaintiffs under the Civil Rights Act and MHRA when they refused
Plaintiffs to be able to move together based on past history of Plaintiffs, and
treated the Plaintiffs differently than other compared to them who are
similarly situated, all because of Plaintiffs’ sexual orientation, and past
history together. (Compl. ¶ 2.)
“Plaintiff believes that there may have been others who suffered from
similar situations as the facts alleged with in this complaint.” (Compl. ¶ 17.)
“Plaintiffs believe that there are others who the Defendants play favorites
with or are afraid of the actions that others may display and therefore grant
others the privilege to be roommates with whom those people choose.”
(Compl. ¶ 18.)
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Plaintiffs were having numerous problems with their roommates and
thought it would be better to become roommates to curb any issues that
may arise out of current roommate situations. (Compl. ¶ 27‐1.)
Plaintiffs have seen other patients within the MSOP and specifically the unit
they reside on who have more security concerns than that of Plaintiffs be
afforded the opportunity to become roommates, even after they have been
caught doing things such as tattooing, extorting, brewing hooch, running a
store etc. and yet they have been allowed to become roommates. (Compl. ¶
35.)
Based on the above factual information and belief, Defendants maintain a
custom and practice of discrimination against Plaintiffs based on their past
sexual encounters and sexual preference. (Compl. ¶ 45.)
As a result of Defendants discriminatory actions, Plaintiffs were denied
being roommates for alleged “safety concerns.” (Compl. ¶ 46.)
Defendants denied equal opportunities to Plaintiffs afforded to other
clients, treated them differently and humiliated and embarrassed Plaintiffs,
treated Plaintiffs inappropriately as compared to those who do other rule
breaking behaviors together and are still roommates. (Compl. ¶ 70.)
The R&R first analyzes Plaintiffs’ equal protection claim as a claim “that
Defendants denied Plaintiffs the opportunity to be roommates on the basis of their sexual
orientation.” (R&R at 10.) The R&R then correctly states that Plaintiffs’ allegation in this
regard is “conclusory and nothing more than a ‘naked assertion’ that is insufficient to
give rise to a plausible claim for relief.” (R&R at 10 (citing Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009)). “As pleaded, Plaintiffs only show that Defendants had particular safety and
treatment concerns related to Plaintiffs’ previous relationship.” (R&R at 11.) The Court
agrees with the R&R’s conclusion that the Complaint has failed to plead a facially
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plausible equal protection claim with respect to a suspect classification – that is, sexual
orientation.
The next question, then, is whether Plaintiffs have alleged an equal protection
claim based on different treatment from others similarly situated to them in all relevant
respects. Bills, 32 F.3d at 335. The R&R does not address this question. The Defendants
object, arguing that “the R&R errs as a threshold matter in concluding that (or failing to
consider whether) Plaintiffs plausibly alleged they were treated differently than others
similarly situated in all relevant respects.” (Def. Obj., at 5.) With respect to whether
Plaintiffs were treated differently from others similarly situated to them, the R&R states
that “Plaintiffs contend that they have been treated different than other persons who are
civilly committed to MSOP” because MSOP allegedly “allow[s] other patients to choose
their roommates, while denying Plaintiffs’ requests to live together.” (R&R at 10.) The
R&R did not analyze whether Plaintiffs sufficiently pled that they were treated differently
from others similarly situated to them. “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 alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556).
While Plaintiffs allege that other patients with security concerns have been
allowed to become roommates, they do not allege that other MSOP patients who posed
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the same safety and therapeutic concerns were allowed to become roommates.5 Here, the
Complaint does not plausibly allege that Plaintiffs were treated differently than others
similarly situated in all relevant respects. Thus, due to their failure to meet this threshold
requirement, the Court finds that Plaintiffs have not pled a plausible equal protection
claim.
Moreover, the claim fails on other grounds as well. Even if a plaintiff plausibly
pleads different treatment than others similarly situated, he must also plead that the
different treatment “is based upon either a suspect classification or a ‘fundamental
right.’” Patel v. U.S. Bureau of Prisons, 515 F.3d 807, 815–16 (8th Cir. 2008) (citation
omitted). The R&R concludes that Plaintiffs have plausibly pled that their relationship as
friends who wish to be roommates is a fundamental right to free association entitled to
constitutional protection. (R&R at 17.) The Court disagrees. First, such a claim has not
been pled. Second, it does not appear that any federal court has recognized a right of
confined or committed individuals to choose their roommate. Though some courts have
recognized similar relationships in other contexts as warranting constitutional protection,
none is in the context of commitment or confinement. See, e.g., Village of Belle v. Boraas, 416
U.S. 1, 7–10 (1974) (holding that a zoning ordinance that limits the number of unrelated
Plaintiffs’ prior lawsuit based on these facts alleged that two other patients at MSOP
were allowed to be roommates despite a prior same‐sex sexual relationship. (See Case No.
16‐CV‐00648 (WMW/FLN), First Amended Complaint at ¶ 38 (“at least two other clients
that Plaintiffs know of to be roommates [were] in a relationship at that time and had been
sexual.”)). Such an allegation has not been pled in this action.
5
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persons who can live together to two individuals does not violate the First Amendment);
Fair Housing Council of San Fernando Valley v. Roommate.com, LLC, 666 F.3d 1216, 1221 (9th
Cir. 2012) (determining that the roommate relationship qualifies as a right to intimate
association in the Fair Housing Act context); Christensen v. County of Boone, 483 F.3d 454,
463–465 (7th Cir. 2007) (finding a form of “intimate association” between an unmarried
couple in a long‐term relationship is protected by the Fourteenth Amendment); Rode v.
Dellarciprete, 845 F.2d 1195, 1205 (3d Cir. 1988) (holding that relationships individuals
select to have with one another are entitled to constitutional protection); Palo Alto Tenants
Union v. Morgan, 321 F.Supp. 908, 911–12 (N.D. Cal. 1970) (upholding single‐family
residential zoning laws and concluding that unrelated living groups did not receive same
protection under the First Amendment).
“Freedom of association is among the rights least compatible with incarceration”
and “[s]ome curtailment of that freedom must be expected in the prison context.” Overton
v. Bazzetta, 539 U.S. 126, 131 (2003). The Eighth Circuit has held that while “an
involuntarily committed patient of a state hospital is not a prisoner per se, his
confinement is subject to the same safety and security concerns as that of a prisoner.”
Revels v. Vincenz, 382 F.3d 870, 874 (8th Cir. 2004). Thus, courts have analyzed
constitutional claims brought by involuntarily committed patients by analogizing to
claims brought in the prison setting. See, e.g., Beaulieu v. Ludeman, 690 F.3d 1017, 1039 (8th
Cir. 2012). And in the prison context, courts have held, under differing legal theories, that
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there is no right to a roommate of one’s choice. See, e.g., Allen v. Purkett, 5 F.3d 1151, 1153
(8th Cir. 1993) (inmates have no right to be housed with certain inmates under the Due
Process Clause); Murray v. Bledsoe, 650 F.3d 246 (3rd Cir. 2011) (per curiam) (no Ninth
Amendment right to choose a cellmate); McKnight v. MTC, 2015 WL 7730995, at *3 (N.D.
Texas Nov. 9, 2015), report and recommendation adopted by 2015 WL 7735910 (N.D. Texas
Nov. 30, 2015) (“It is well‐settled that prisoners do not have a constitutional right to
choose their place of confinement, security classification, housing assignment, and
cellmate.”). The Court recognizes that civil commitment is a different context than prison
confinement, but the Court is hard pressed to find that the law supports a fundamental
right to a roommate choice in the civil commitment context.
Thus, because Plaintiffs have not pled that they are similarly situated with others
treated differently, because they have not pled a freedom of association claim, and
because they do not have a fundamental right to choose a roommate in this context, the
Court concludes that the Plaintiffs’ equal protection claim must fail, and respectfully
modifies the R&R accordingly.
CONCLUSION
Based on the foregoing, and on all the files, records and proceedings herein, the
Court OVERRULES the objections [ECF Nos. 34, 36], and ACCEPTS the R&R AS
MODIFIED [ECF No. 32]. IT IS HEREBY ORDERED THAT:
1. The R&R [ECF No. 32] is ADOPTED AS MODIFIED;
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2. Defendants’ Motion to Dismiss Plaintiff’s Complaint [ECF No. 19] is
GRANTED as follows:
a. Count 1, to the extent that it asserts a claim against MSOP and the
Minnesota Department of Human Services, individual‐capacity claims
against Defendants Kulas, Joslin, Leivian, Vaineo, and the 1E clinical
team for injunctive relief, and official‐capacity claims against
Defendants Kulas, Joslin, Leivian, Vaineo, and the 1E clinical team, be
DISMISSED WITH PREJUDICE;
b. Count 1, to the extent that it asserts individual‐capacity claims against
Defendants Kulas, Joslin, Leivian, Vaineo, and the 1E clinical team for
monetary relief, be DISMISSED WITHOUT PREJUDICE;
c. Count 2, to the extent that it asserts a claim against MSOP and the
Minnesota Department of Human Services, individual‐capacity claims
against Defendants Kulas, Joslin, Leivian, Vaineo, and the 1E clinical
team, official capacity claims against Defendants Kulas, Joslin, Leivian,
Vaineo, and the 1E clinical team for monetary relief, and any claim for
violation of the Minnesota Constitution, be DISMISSED WITH
PREJUDICE;
d. Count 2, to the extent that it alleges official‐capacity claims against
Defendants Kulas, Joslin, Leivian, Vaineo, and the 1E clinical team for
injunctive relief for a violation of the Equal Protection Clause of the 14th
Amendment to the United States Constitution, be DISMISSED WITH
PREJUDICE; and
e. Count 3 be DISMISSED WITH PREJUDICE.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: March 29, 2019
BY THE COURT:
s/Nancy E. Brasel
Nancy E. Brasel
United States District Judge
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