WEISMAN et al v. NEW JERSEY DEPARTMENT OF HUMAN SERVICES et al

Filing 19

OPINION FILED. Signed by Judge Joseph E. Irenas on 10/5/11. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

DEBRA WEISMAN and ALBERT
WEISMAN,

HONORABLE JOSEPH E. IRENAS

Plaintiffs,

CIVIL ACTION NO. 11-1856
(JEI/JS)

NEW JERSEY DEPARTMENT OF HUMAN
SERVICES et al.

OPINION

v.

Defendants.
APPEARANCES:
FRANK FINCH, III, ESQ.
Two Penn Center, Suite 1850
Philadelphia, PA 19102
and
GEOFFREY B. GOMPERS, ESQ.
778 Riverton Road
Moorestown, NJ 08057
Counsel for Plaintiffs
ATTORNEY GENERAL OF NEW JERSEY
By: Jacqueline Augustine, Esq.
Richard J. Hughes Justice Complex
P.O. Box 112
25 Market Street
Trenton, NJ 08625-0112
Counsel for Defendants
IRENAS, Senior District Judge:
Plaintiffs Debra Weisman (“Weisman”) and her husband, Albert
Weisman, initiated this action for injuries allegedly suffered in
connection with the termination of Weisman’s employment at Ancora

1

Psychiatric Hospital (“Ancora”).1

Weisman alleges she was

retaliated against for making complaints about working conditions
at Ancora.2

Pending before the Court is Defendants’ Motion to

Dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6) and
12(b)(1).
I.
Weisman is a registered nurse licensed by the state of New
Jersey since 1994.

(Compl. ¶ 15.)

From June 1998 to April 2010,

Weisman was employed as a charge nurse at Ancora, a DHS-operated
facility.

(Id. ¶¶ 11, 16.)

Beginning in 2006, Weisman began making complaints about
what she perceived to be violations of policies, rules, and
regulations at Ancora.

(Id. ¶ 18.)

Specifically, Weisman

complained formally and informally about staffing shortages, coworker misconduct, falsification of documents, false allegations
made against Weisman, and violations of written policies to DHS
officials, Ancora officials, and to former Governor Corzine.
(Id. ¶¶ 19-29.)

Weisman also gave testimony adverse to Ancora at

a New Jersey Office of Administrative Law proceeding, and gave a
1

The Court exercises subject matter jurisdiction pursuant
to 28 U.S.C. § 1331 and § 1367.
2

Named as Defendants in this action are the New Jersey
Department of Human Services (“DHS”); Ancora; Commissioner of
DHS, Jennifer Velez; Executive Director and Chief Operating
Officer of Ancora (“COO”), Allan Boyer; and Director of Human
Resources at Ancora, Alfred Filippini (collectively
“Defendants”).
2

statement regarding alleged staffing shortages and document
falsification to the United States Department of Justice in
connection with an investigation into alleged civil rights
violations.

(Id. ¶¶ 18, 38-45, 46-54.)

In addition, Weisman

gave an interview to the Asbury Park Press about conditions at
Ancora, which was published in an article titled “Nurse alleges
litany of abuses at troubled hospital” on February 17, 2008.
(Id. ¶ 29.)
Weisman alleges that because of her complaints, Ancora and
DHS officials attempted to discredit her through false
allegations of misconduct, baseless disciplinary actions
culminating in her eventual termination, false reports to the New
Jersey Board of Nursing, and defamatory accusations regarding her
mental state.

(Id. ¶¶ 55, 58-61, 72-74, 88-90, 56-71.)

As a

result of the alleged retaliatory actions, Weisman took a leave
of absence beginning on September 30, 2008 because she was
suffering post-traumatic stress disorder. (Id. ¶ 62; see also id.
Ex. A.)
Weisman’s physician approved her to return to work beginning
on June 26, 2009.

(Id. ¶ 66.)

A fitness-for-duty independent

medical evaluation was a condition of Weisman’s return to duty.
(Id. ¶ 67.)

Weisman submitted to the evaluation, and the

psychiatrist found her unfit to return to work.

(Id. ¶ 71.)

According to Weisman, the psychiatrist’s findings were influenced
3

by false allegations about her conduct made before Weisman even
met with the psychiatrist.3

(Id. ¶¶ 68-70.)

Weisman was not permitted to return to work and instead was
suspended pending termination.

(Id. ¶¶ 72-73.)

On July 30,

2009, she was given a Preliminary Notice of Disciplinary Action
for “insubordination, inability to perform one’s duty, violation
of policy, and conduct unbecoming a public employee.”

(Id. ¶

73.)
On January 28, 2010, following a departmental hearing on
December 7, 2009, Defendants served Weisman with a “Final Notice
of Major Disciplinary Action” (“Final Notice”), terminating her
employment at Ancora effective November 12, 2009.

(Id. ¶ 74.)

The following charges were sustained against Weisman:
“Insubordination, Inability to Perform Duties, Conduct Unbecoming
a Public Employee, Other Sufficient Cause, Inability to Discharge
One’s Duty Due to Mental or Physical Capacity, Notoriously
Disgraceful Conduct, and Violation of Rule, Regulation, Policy,
Procedure, Order or Administrative Decision.”

(Id.)

With the help of her union, Weisman appealed her termination
and sought arbitration.

(Id. ¶ 75.)

Prior to arbitration, the

parties reached an agreement through a mediation proceeding that
3

According to the Complaint, “[b]y letter dated July 10,
2009 from Rudene L. Vaught, Assistant Commissioner for Human
Resources at Defendant DHS, a significant amount of false and
misleading ‘background’ information about Weisman was submitted
to Dr. Margolis.” (Compl. ¶ 69.)
4

took place on April 16, 2010.

(Id. ¶ 76.)

The agreement

provided that in exchange for Weisman’s waiver of all related
claims against the State and its agents, her status on the Final
Notice would be changed from “removal” to “resignation in good
standing.”

(Id. ¶ 78; see also id. Ex. E.)

The settlement

agreement was signed on April 16, 2010 by Weisman, employer
representative Phoebe Askie, Weisman’s union representatives, and
the mediator. (Id.)
However, in contravention of the settlement agreement, the
Final Notice was changed to read “resignation not in good
standing” as opposed to “resignation in good standing.”
E.)

(Id. Ex.

According to the Complaint, Defendant Filippini

intentionally failed to make the agreed upon change to the Final
Notice, and Defendant Boyer was complicit in this action in order
to retaliate against Weisman.

(Id. ¶¶ 141-42.)

On June 7, 2010, Kennedy Memorial Hospitals (“Kennedy”) sent
Weisman a letter notifying her that she had been preliminarily
accepted as a nurse, contingent upon receipt of satisfactory
references.

(Id. Ex. F.)

On June 17, 2010, Kennedy informed

Weisman that they had not received satisfactory references and
rescinded the offer of employment.

(Id. Ex. G.)

According to

Weisman, the reason she was not hired by Kennedy was because
Defendant Filippini, or a representative of his office acting on
his instruction, informed Kennedy that Weisman had resigned “not
5

in good standing” and that Filippini made defamatory statements
regarding Weisman’s employment at Ancora.

(Id. ¶¶ 82-83.)

Weisman filed suit in this Court on March 31, 2011,
asserting civil rights violations pursuant to 42 U.S.C. § 1983 as
well as various state law claims.4

On June 15, 2011, Defendants

filed the instant Motion to Dismiss the Complaint.
II.
A.
Federal Rule of Civil Procedure 12(b)(6) provides that a
court may dismiss a complaint “for failure to state a claim upon
which relief can be granted.”

In order to survive a motion to

dismiss, a complaint must allege facts that raise a right to
relief above the speculative level.

Bell Atlantic Corp. v.

Twombly, 550 U.S. 544, 555 (2007); see also Fed. R. Civ. P.
8(a)(2).
While a court must accept as true all allegations in the
plaintiff’s complaint, and view them in the light most favorable
to the plaintiff, Phillips v. County of Allegheny, 515 F.3d 224,
231 (3d Cir. 2008), a court is not required to accept sweeping
legal conclusions cast in the form of factual allegations,
unwarranted inferences, or unsupported conclusions.

Morse v.

Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997).

4

The

In addition, Weisman’s husband, Albert, asserts a loss of
consortium claim.
6

complaint must state sufficient facts to show that the legal
allegations are not simply possible, but plausible.
515 F.3d at 234.

Phillips,

“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.”

Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

(2009).
When evaluating a Rule 12(b)(6) motion to dismiss, the Court
considers “only the allegations in the complaint, exhibits
attached to the complaint, matters of public record, and
documents that form the basis of a claim.”

Lum v. Bank of

America, 361 F.3d 217, 221 n.3 (3d Cir. 2004).

A document that

forms the basis of a claim is one that is “integral to or
explicitly relied upon in the complaint.”

Id. (quoting In re

Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir.
1997)).
B.
Federal Rule of Civil Procedure 12(b)(1) provides that a
court may dismiss a complaint for lack of subject matter
jurisdiction.

Rule 12(b)(1) motions may be based upon the

complaint’s face or its underlying facts.

Mortensen v. First

Federal Savings & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
“A facial attack questions the sufficiency of the pleading,
and in reviewing a facial attack, a trial court accepts the
7

allegations in the complaint as true.”

Pittman v. Metuchen

Police Dept., No. 08-2373, 2009 WL 3207854, *1 (D.N.J. Sept. 29,
2009).
A factual attack permits the court to consider conflicting
evidence that may bear on its jurisdiction.

Id.

“No presumptive

truthfulness attaches to plaintiff’s allegations, and the
existence of disputed material facts will not preclude the trial
court from evaluating for itself the merits of jurisdictional
claims.”

Carpet Group Int’l v. Oriental Rug Importers Ass’n

Inc., 227 F.3d 62, 69 (3d Cir. 2000) (quoting Mortensen v. First
Fed. Savings & Loan Ass’n, 549 F.2d 884, 891 (3d Cir. 1977).
III.
A.
Defendants argue that Plaintiffs’ claims are precluded by
the settlement agreement reached between the parties.

Pursuant

to the settlement agreement, Defendants agreed to change
“removal” to “resignation in good standing” on the Final Notice
in exchange for Weisman’s waiver of “all appeals, claims,
demands, damages, causes of action or suits . . . which he/she
may have against the State, its employees, agents, or assigns
arising out of or related to the subject matter of this
disciplinary action . . . .”

(Compl. Ex. E.)

Plaintiffs argue that the April 16, 2010 settlement
agreement cannot be enforced against them because they were
8

deprived of the benefit of their bargain when Defendants breached
the agreement by designating Weisman’s resignation as “not in
good standing” on the Final Notice.

Defendants do not dispute

that they made an error on the May 2010 Final Notice; however,
they argue that it was a “minor mistake,” a mere “clerical error”
which was corrected on January 4, 2011.

(Defs’ Br. at 13.)

A release of claims pursuant to a settlement agreement is a
simple legal contract which should be enforced to preclude a
lawsuit stemming from the related events provided there is no
applicable exception to the release defense.

Grimes v. Vitalink

Commc’n Corp., 17 F.3d 1553, 1557 (3d Cir. 1994).

However, “a

material breach by either party to a bilateral contract excuses
the other party from rendering any further contractual
performance.”

Magnet Res., Inc. v. Summit MRI, Inc., 318 N.J.

Super. 275, 285 (App. Div. 1998)(citing Nolan v. Lee Ho, 120 N.J.
465, 472 (1990)).

A material breach is one that “goes to the

essence of a contract.”

Goldman S. Brunswick Partners v. Stern,

265 N.J.Super. 489, 494 (App. Div. 1993)(quoting Ross Sys. v.
Linden Dari–Delite, Inc., 35 N.J. 329, 341 (1961)).
Defendants’ sole obligation under the settlement agreement
was to designate Weisman’s status on the Final Notice as
“resignation in good standing.”

Defendants did not do this until

January 2011, seven months after the Final Notice reading
“resignation not in good standing” was allegedly sent to Kennedy,
9

resulting in the revocation of an offer of employment to
Weisman.5

(See Augustine Cert. Ex. 2, Final Notice dated May 11,

2010; Compl. Ex. G.)(emphasis added).
Because Defendants have materially breached the settlement
agreement and deprived Weisman of the benefit of her bargain,
Weisman is excused from performance of her obligation under the
agreement to release all claims related to the disciplinary
action.

See In re Nickels Midway Pier, LLC, 372 B.R. 218, 222-23

(D.N.J. 2007).

Accordingly, Defendants’ Motion to Dismiss

Plaintiffs’ claims as barred by the settlement agreement will be
denied.
B.
In Count II of the Complaint, Weisman alleges that she was
retaliated against in violation of the Civil Rights of
Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997d, which
provides: “[n]o person reporting conditions which may constitute
a violation under this subchapter shall be subjected to
retaliation in any manner for so reporting.”

42 U.S.C. § 1997d.

Defendants move to dismiss this Count, arguing that CRIPA
does not provide for a private cause of action.

5

(Defs’ Br. at

The fact that the breach may have been due to a “mere
clerical error” does not diminish or excuse the material breach
of the agreement. Regardless of the reason why Defendants did
not comply with their sole obligation under the settlement
agreement, their failure to perform nevertheless constitutes a
material breach.
10

14-15.)

Plaintiffs concede that no court construing the anti-

retaliation provision of CRIPA has found it to create or imply a
private cause of action, but they nevertheless argue
that in the absence of Third Circuit precedent on the issue, this
Court should imply a private right of action under the analysis
set out by the Supreme Court in Cort v. Ash, 422 U.S. 66 (1975).6
As an initial matter, the Court notes that while not
expressly overruled, the Cort framework has been significantly
altered and “effectively overruled” by later Supreme Court
decisions.

Thompson v. Thompson, 484 U.S. 174, 188

(1988)(Scalia, J., concurring); see also Alexander v. Sandoval,
532 U.S. 275 (2001).

Following these later Supreme Court

decisions, the touchstone for determining whether a private right
of action exists is Congressional intent to create a personal
right and a private remedy.

See McGovern v. City of

Philadelphia, 554 F.3d 114, 119 (3d Cir. 2009); Wisniewski v.
Rodale, Inc., 510 F.3d 294, 301 (3d Cir. 2007).
Although the Third Circuit has not addressed this issue,
each court to consider whether §1997(d) grants a private right of

6

The Cort analysis requires a court to consider (1)
whether the plaintiff is a member of the class for whose benefit
the statute was enacted; (2) whether there is evidence of
congressional intent to create a remedy or deny one; (3) whether
creating a remedy for the plaintiff would be consistent with the
legislative scheme; and (4) whether the cause of action is one
traditionally related to state law so that creation of a cause of
action under federal law might be inappropriate. 422 U.S. at 78.
11

action for an individual has found that it does not.

See Pope v.

Bernard, 2011 WL 478055 at *1 (1st Cir. Feb. 10, 2011); Price v.
Brittain, 874 F.2d 252, 262 (5th Cir. 1989); McRorie v. Shimoda,
795 F.2d 780, 782 n.3 (9th Cir. 1986); Bieros v. Nicola, 860
F.Supp. 226, 235 (E.D.Pa. 1994).

Of particular relevance to the

instant action is the Fifth Circuit’s analysis of legislative
intent in Price v. Brittain.

The Fifth Circuit found that those

committed to mental health institutions were the protected class
under CRIPA and that there was no indication that Congress sought
to create a private cause of action for employees at such
institutions.

Price, 874 F.2d at 263.

In light of the persuasive analysis of legislative intent by
the courts to have considered the issue, this Court agrees that
no private cause of action exists for an employee of a mental
health institution under 42 U.S.C. § 1997d.

Accordingly,

Defendants’ Motion to Dismiss Count II of the Complaint will be
granted.
C.
Defendants next argue that the Complaint has not set forth a
sufficient factual basis to maintain any claims, including claims
pursuant to § 1983, against Defendants Velez and Boyer.

(Defs’

Reply at 14-15.)
With respect to § 1983 claims, “[a] defendant in a civil
rights action must have personal involvement in the alleged
12

wrongs; liability cannot be predicated solely on the operation of
respondeat superior.”
(3d Cir. 1988).

Rode v. Dellarciprete, 845 F.2d 1195, 1207

Allegations of personal involvement or actual

knowledge and acquiescence made with appropriate particularity
will suffice.

Id.

The Third Circuit has held that a civil

rights complaint stating the conduct, time, place, and persons
responsible is adequate.

Evancho v. Fisher, 423 F.3d 347, 353

(3d Cir. 2005)(citing Boykins v. Ambridge Area Sch. Dist., 621
F.2d 75, 80 (3d Cir. 1980)).
The only allegation made against Defendant Velez is that,
“acting through Donald Mangus, Director of the DHS Office of
Cooperative Labor relations,” she notified Weisman that her
grievance could not be processed because she had resigned her
employment with DHS.

(Compl. ¶ 84.)

This allegation is

insufficient to sustain a § 1983 claim against Defendant Velez
for retaliation against Weisman for the exercise of her First
Amendment rights.

The Complaint does not include any allegations

of Defendant Velez’s personal involvement or actual knowledge and
acquiescence in the alleged wrongs forming the basis of Weisman’s
§ 1983 claims.

Moreover, the instances of retaliation are

alleged to have been done by Ancora management, and while Ancora
is a DHS-operated facility, it is nevertheless a separate entity
maintaining a separate place of business.

The Complaint fails to

allege any facts that, if proven, would show Defendant Velez’s

13

personal involvement in the alleged acts of retaliation against
Weisman.

As such, the Complaint fails to meet the Third

Circuit’s standard for a legally adequate civil rights complaint.
See Evancho v. Fisher, 423 F.3d 347, 353-54 (3d Cir. 2005).
In addition, this allegation is wholly unrelated to and
therefore insufficient to sustain the state law claims asserted
against Defendant Velez, which include tortious interference,
defamation, intentional infliction of emotional distress, breach
of contract, breach of implied covenant of good faith and fair
dealing, a claim pursuant to the Conscientious Employee
Protection Act, N.J.S.A. 34:19-1, et seq., and Albert Weisman’s
loss of consortium claim.
With respect to Defendant Boyer, the Complaint alleges that
Weisman made complaints about the working conditions at Ancora
via telephone messages to Defendant Boyer.

(Compl. ¶ 19.)

In

addition, the Complaint alleges that Boyer, “acting through
Maureen Long, RN, DHS’ Director of Nurses,” informed the New
Jersey Board of Nursing that Weisman was suspended pending
termination and that, as a result, Weisman was “ordered to appear
before the N.J. Board of Nursing to give evidence and testimony
in response to the allegations Ancora made to the Board.” (Id. ¶¶
88, 90.)
These allegations connect Defendant Boyer directly to the
alleged protected conduct of Weisman’s complaints about the

14

conditions at Ancora as well as the retaliatory conduct, which
includes making an allegedly false report to the Board of
Nursing.

(See Compl. ¶ 55(d).)

Thus, at this stage of the

litigation, Weisman has alleged sufficient facts against
Defendant Boyer to sustain the claims against him.
Accordingly, Defendants’ Motion to Dismiss will be granted
as to Defendant Velez but denied as to Defendant Boyer.7
D.
In Count I, Weisman asserts claims under 42 U.S.C. § 1983
for the violation of her First Amendment right to freedom of
speech for the alleged retaliation she suffered after speaking
out about conditions at Ancora.8

Defendants move to dismiss

Plaintiffs’ constitutional claims, arguing that Defendants are

7

Because Plaintiffs’ claim pursuant to 42 U.S.C. § 1983
remains viable as against Defendants Boyer and Fillipini, this
Court has not dismissed all claims over which it has original
jurisdiction. Therefore, Defendants’ Motion to Dismiss the state
law claims for lack of subject matter jurisdiction will be
denied.
8

42 U.S.C. § 1983 provides:

Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be subjected,
any citizen of the United States or other
person within the jurisdiction thereof to the
deprivation of any rights, privileges or
immunities secured by the Constitution and
laws, shall be liable to the party injured in
an action at law, suit in equity, or other
proper proceeding for redress.
42 U.S.C. § 1983.
15

not “persons” within the meaning of § 1983.
The Supreme Court has held that states and its departments
are not persons within the meaning of § 1983.

Will v. Michigan

Dept. of State Police, 491 U.S. 58, 64, 70 (1989) (“Section 1983
provides a federal forum to remedy many deprivations of civil
liberties, but it does not provide a federal forum for litigants
who seek a remedy against a State for alleged deprivations of
civil liberties.”).

While state officials sued in their official

capacity are also not “persons” subject to a suit for damages
under § 1983, an official capacity suit against a state official
seeking prospective injunctive relief is not treated as an action
against the State.

Id. at 71 n.10; Kentucky v. Graham, 473 U.S.

159, 167 n.14 (1985).

However, a state official sued in his

individual capacity is a “person” subject to suit under § 1983.
Kentucky v. Graham, 473 U.S. at 167-68.
Plaintiffs’ § 1983 claims are asserted against DHS; Ancora,
a

DHS-operated facility; Allan Boyer in his individual capacity

and in his official capacity as COO of Ancora; and Alfred
Fillipini in his individual capacity and in his official capacity
as Director of Human Resources at Ancora.9
9

Based on the clearly

Defendants argue that because Filippini and Boyer were
acting in their official capacities at all times relevant to the
action, Weisman cannot maintain an individual capacity § 1983
claim against them. (Defs.’ Br. at 18.) However, the fact that
Filippini and Boyer were acting as state officials at the time of
the alleged violations does not insulate them from an individual
capacity suit under § 1983. Melo v. Hafer, 912 F.2d 628, 637 (3d
16

established case law, Defendants DHS and Ancora as arms of the
state are not “persons” within the meaning of § 1983.

Therefore,

Weisman cannot maintain § 1983 claims against these state
agencies.10
However, in accordance with the above-stated principles,
Weisman may seek prospective injunctive relief against state
officials Boyer and Fillipini in their official capacities, and
retrospective relief against Boyer and Fillipini in their
individual capacities.11

Cir. 1990)(rejecting the argument that a “state official can be
sued in her personal capacity only if the allegedly
unconstitutional actions were not taken in her official
capacity”).
10

In their Reply Brief, Defendants also argue that the §
1983 claim against them is barred by the Eleventh Amendment.
Defendants are correct that Plaintiffs’ constitutional claims
against DHS and Ancora are also barred by the Eleventh Amendment
under which “[s]tate governments and their subsidiary units are
immune from suit in federal court.” Betts v. New Castle Youth
Development Center, 621 F.3d 249, 253 (3d Cir. 2010). However,
the Eleventh Amendment does not bar suits against state officials
in their individual capacity. See Hafer v. Melo, 502 U.S. 21, 31
(1991).
11

Weisman seeks reinstatement to her position, a letter of
recommendation, and expungement of her personnel files, which are
plainly prospective injunctive relief that may be sought in a §
1983 action against state officials sued in their official
capacity. Melo v. Hafer, 912 F.2d 628, 635-36 (3d Cir. 1990).
Weisman also seeks back pay, which she argues is permissible
injunctive relief because it represents “restoration of withheld
wages, benefits, etc., as distinguished from ‘damages. . . .’”
(Pls’ Opp. at 25.) The Third Circuit has made clear that while
back pay is injunctive in nature, it constitutes impermissible
retrospective relief for the purposes of an official capacity §
1983 suit. Iles v. De Jongh, 638 F.3d 169, 177-78 (3d Cir.
2011). Thus, Weisman may only seek back pay against Boyer and
17

Accordingly, Defendants’ Motion to Dismiss the § 1983 claims
will be granted with respect to (1) all claims against DHS and
Ancora, and (2) claims for money damages, including back pay,
against Defendants Boyer and Fillipini in their official
capacities.

The Motion will be denied with respect to (1)

injunctive relief against Defendants Boyer and Fillipini in their
official capacity and (2) all claims against them in their
individual capacity.
IV.
For the reasons stated above, Defendants’ Motion to Dismiss
will be granted as to Plaintiffs’ CRIPA claim stated in Count Two
and all claims against Defendant Velez.

Defendants’ Motion to

Dismiss the § 1983 claims will also be granted with respect to
(1) all claims against DHS and Ancora, and (2) claims for money
damages, including back pay, against Defendants Boyer and
Fillipini in their official capacities.

Defendants’ Motion will

be denied with respect to (1) prospective injunctive relief
against Defendants Boyer and Fillipini in their official capacity
and (2) all claims against them in their individual capacity.

An

appropriate Order accompanies this Opinion.
Dated: October 5, 2011
s/Joseph E. Irenas
JOSEPH E. IRENAS, S.U.S.D.J.

Fillipini in their individual capacities.
18