FARMER v. LANIGAN et al

Filing 203

OPINION. Signed by Judge Susan D. Wigenton on 8/1/16. (cm )

*NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

ALLEN J. FARMER,
Plaintiff,
v.
GARY M. LANIGAN, et al.,
Defendants.

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Civil Action No. 12-5716 (SDW)

OPINION

WIGENTON, District Judge:
Presently before the Court is Defendant D. Marquez’s motion to dismiss Plaintiff’s
amended complaint. (ECF No. 179). Plaintiff, Allen J. Farmer, filed a brief in opposition (ECF
No. 188). Defendant Marquez did not file a reply brief. For the following reasons, this Court
will grant in part and deny in part Defendant’s motion to dismiss.

I. BACKGROUND
As this Court has previously summarized the basic facts underlying Plaintiff’s claims in its
opinion screening Plaintiff’s original complaint (ECF No. 3), and as the current motion to dismiss
deals only with Defendant Marquez, this Court will summarize only those facts pertinent to
Plaintiff’s claims against Marquez, who was originally referred to as “Diaz” in this Court’s prior
opinion. According to Plaintiff’s amended complaint, Marquez was, at the time of the relevant
events, a corrections officer recruit employed by the New Jersey Department of Corrections at
New Jersey State Prison. (ECF No. 74 at 3). Plaintiff, as of September 2011, although still a
pre-trial detainee, had been transferred to New Jersey State Prison from Union County jail

following his having raised complaints against the jail and a jail official for claiming, allegedly
without basis, that Plaintiff was a high risk inmate. (Id. at 5). Upon his transfer, Plaintiff alleges
that he was abused and mistreated by several corrections officers including an officer White and
an officer Hamilton. (Id. at 6). Plaintiff also alleges that he was placed in a wing of the prison
with violent offenders and offenders with histories of sexual violence, and that Officer Hamilton
told Plaintiff that he “would not make it out of the prison alive” if he didn’t drop his then pending
lawsuits. (Id.).
Plaintiff alleges that, after several months of abuse following his transfer, he was cleaning
his cell on February 4, 2012 when he was “attacked from behind by an unknown prisoner.” (Id.).
Plaintiff further states that he was struck by the prisoner in the head, neck, back, and shoulders
with a broom handle, resulting in his being briefly knocked unconscious, only awakening when
the inmate began to remove his pants while threatening to rape and kill him. (Id.). Plaintiff
alleged that the inmate told him that the attack was because Plaintiff was a “snitch” who liked to
complain and sue the police. (Id.). Although Plaintiff was able to prevent himself from being
raped, he was beaten and eventually thrown from his cell by the attacker, who continued to beat
him in plain view of “the other inmates on the unit” who began to make noise to draw the attention
of officers including White and Marquez. (Id. at 7). Plaintiff further alleges that White and
Marquez watched this assault continue with Officer Hamilton, with one of the three officers
locking the door to Plaintiff’s cell so that he could not escape the assault. (Id.). While watching
the attack, none of the officers issued an alarm, intervened, or otherwise sought to help Plaintiff
until after the attacker fled back to his cell. (Id.). After the attack had ended, Officer White
approached Plaintiff and told him that if he “made any waves” about the attack, he “wouldn’t be

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so lucky the next time” and that Plaintiff had “better think about dropping his lawsuit because
nobody like[s] a snitch.” (Id.). The officer also intimated that Plaintiff wouldn’t be protected if
he didn’t drop the suit. (Id.).
In his complaint, Plaintiff also alleges that the attack was the result of a conspiracy of
several officers, including Defendants White, Hamilton, and Marquez, who sought to retaliate
against Plaintiff based on his filing complaints against jail officials by subjecting him to attack by
another inmate. (Id. at 10). In furtherance of that conspiracy, Plaintiff alleges that Officer
Hamilton had actually broken a padlock which would have prevented the attack in order to provide
the attacker means to reach Plaintiff, and that other officers after the fact filed reports stating that
the padlock had broken only later to cover up these actions. (Id.). Plaintiff also alleges that
Officers White and Hamilton provided the broomstick which was used to attack Plaintiff to the
prisoner who attacked Plaintiff. (Id.). Plaintiff’s only allegations, other than as to her failure to
intervene, connecting Defendant Marquez to the conspiracy is his allegation that Marquez, along
with several others, “[e]ach collectively & individually conspired to cover up the nature & extent
of the assault . . . by . . . filing false reports & attempting to fabricate, plant, & otherwise create
evidence to cover up & minimize the intentional willf[u]l & criminal actions committed against”
Plaintiff. (Id.).
In his original complaint, Plaintiff pled additional facts regarding the actions of Defendant
Marquez. (ECF No. 1 at 14). Specifically, Plaintiff’s original complaint contained an allegation
that “once plaintiff’s cell door had been opened [by Officer White,] [Marquez] was ordered by
[White and Hamilton] to . . . open the other inmate’s cell door so that the other inmate could
retrieve the large stick” and assault Plaintiff. (Id.at 14). Plaintiff excised the allegation that it

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was Marquez, as commanded by White and Hamilton, who released the other prisoner from his
amended complaint, and has not sought to replead those allegations since the filing of the amended
complaint. (See generally ECF No. 74, 113).

II. DISCUSSION
A. Legal Standard
In deciding a motion to dismiss under Rule 12(b)(6), the Court must “accept all factual
allegations as true, construe the complaint in the light most favorable to the plaintiff, and determine
whether under any reasonable reading of the complaint, the plaintiff may be entitled to relief.”
Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 308 n. 3 (3d Cir. 2014) (quoting Phillips v.
Cnty. of Allegheny, 515 F.3d 224, 233 (3d Cir. 2008)). According to the Supreme Court’s
decision in Ashcroft v. Iqbal, “a pleading that offers ‘labels or conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). To survive a motion to dismiss for
failure to state a claim, a complaint must allege “sufficient factual matter” to show that its claims
are facially plausible. Fowler v. UPMS Shadyside, 578 F.3d 203, 210 (3d Cir. 2009) (citation
omitted). “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.”
Dempster, 764 F.3d at 308 (quoting Iqbal, 556 U.S. at 678). Moreover, while pro se pleadings
are liberally construed, “pro se litigants still must allege sufficient facts in their complaints to
support a claim.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 245 (3d Cir. 2013) (citation
omitted) (emphasis added).

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B. Analysis
In his complaint, Plaintiff asserts that Defendant Marquez, alongside other officers,
violated his constitutional rights, and seeks redress for these violations pursuant to 42 U.S.C. §
1983. That statute provides “private citizens with a means to redress violations of federal law
committed by state individuals.” Woodyard v. Cnty. Of Essex, 514 F. App’x 177, 180 (3d Cir.
2013). To assert a claim under the statute, Plaintiff must show that “he was a deprived of a federal
constitutional or statutory right by a state actor.” Id. When evaluating the merits of a § 1983
claim, the Court must identify the contours of the underlying right Plaintiff claims was violated
and determine whether Plaintiff has properly alleged the violation of such a right at all. Nicini v.
Morra, 212 F.3d 798, 806 (3d Cir. 2000). In his amended complaint, this Court construes Plaintiff
to essentially present two claims against Defendant Marquez – a claim for failure to
protect/intervene in violation of Plaintiff’s Fourteenth Amendment rights, and a claim for
conspiracy to retaliate against Plaintiff for filing a civil complaint in violation of Plaintiff’s First
Amendment rights. Defendant Marquez moves to dismiss both claims for failure to state a claim
for relief based on the allegations in the amended complaint, and argues that she is, in any event,
entitled to qualified immunity as to both claims.

1. Plaintiff’s Law of the Case argument
Plaintiff initially argues that Marquez’s motion should be denied outright pursuant to the
law of the case doctrine because this Court has previously held that Plaintiff’s initial complaint
contained sufficient factual allegations to state claims for failure to protect/intervene and first

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amendment retaliation against her. “The law of the case doctrine ‘limits relitigation of an issue
once it has been decided’ in an earlier stage of the same litigation.” Hamilton v. Leavy, 322 F.3d
776, 786 (3d Cir. 2003) (quoting In re Continental Airlines, Inc., 279 F.3d 226, 232 (3d Cir. 2002)).
The doctrine is designed to “promote finality, consistency, and judicial economy.” Id. at 787.
The law of the case doctrine, however, does not apply where new evidence, or in the case of a
motion to dismiss, new allegations have been made which change the nature of the record and
place it in an altogether different state than it was in at the time the Court decided the issue at hand.
Id.
Here, Plaintiff argues that the law of the case doctrine should prevent Marquez from
seeking dismissal because this Court previously screened Plaintiff’s initial complaint and
permitted the claims against Marquez to proceed. While it is true that this Court previously
screened Plaintiff’s initial complaint (ECF No. 3), and that the standard for screening a complaint
is equivalent to that used to decide a motion to dismiss, see Schreane v. Seana, 506 F. App’x 120,
122 (3d Cir. 2012) (citing Allah v. Seiverling, 229 F.3d 220, 223 (3d Cir. 2000)), it does not follow
that the law of the case doctrine controls this motion to dismiss. The reason for this conclusion
is clear – the “law of the case” on which Plaintiff seeks to rely is this Court’s screening of Plaintiff’s
original complaint. Plaintiff’s filing of an amended complaint, in which he pled facts which are
not identical to those in his original complaint, changed the factual allegations which are before
this Court. Thus, this case fits the exception to the law of the case doctrine where that doctrine is
inapplicable – where the facts of the case have essentially changed and the law as it applies to the
facts as they now stand must be re-evaluated. See Hamilton, 322 F.3d at 787. Plaintiff’s reliance
on the law of the case doctrine is therefore misplaced, and this Court’s prior screening opinion,

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though relevant to the task at hand, does not control of the outcome of this motion to dismiss
Plaintiff’s amended complaint as to Defendant Marquez.

2. Plaintiff’s Failure to Protect Claims
Defendants first argue that Plaintiff failed to state a claim for failure to protect or failure to
intervene in the attack he suffered. In this claim, Plaintiff essentially asserts that Marquez stood
by and watched while he was brutally beaten, without intervening or calling for help. In Bistrian
v. Levi, the Third Circuit explained such claims as follows:
“Being violently assaulted in prison is simply not part of the penalty
that criminal offenders pay for their offenses against society.”
Farmer v. Brennan, [511 U.S. 825, 834] (1994) (quotation marks
omitted). As such, the Eighth Amendment's Cruel and Unusual
Punishments Clause imposes on prison officials “a duty to protect
prisoners from violence at the hands of other prisoners.” Id. at
833[] (quotation marks omitted); see also Beers–Capitol v. Whetzel,
256 F.3d 120, 130–33 (3d Cir.2001); Hamilton v. Leavy, 117 F.3d
742, 746 (3d Cir.1997).
The Cruel and Unusual Punishments Clause, however, does
not apply until an inmate has been both convicted of and sentenced
for his crimes. See Graham v. Connor, 490 U.S. 386, 392 n. 6[]
(1989); Hubbard v. Taylor, 399 F.3d 150, 164 (3d Cir.2005)[.]
Thus, an inmate awaiting sentencing must look to either the Fifth
Amendment's or the Fourteenth Amendment's Due Process Clause
for protection. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16[] (1979);
Fuentes v. Wagner, 206 F.3d 335, 341–42 (3d Cir.2000). We have
not yet in a precedential opinion recognized that an unsentenced
inmate may bring a due process-grounded failure-to-protect claim
of the sort that a sentenced inmate can bring under the Eighth
Amendment.
But it is well established that, under the
Constitution's guarantees of due process, an unsentenced inmate “is
entitled[,] at a minimum, to no less protection than a sentenced
inmate is entitled to under the Eighth Amendment.” Fuentes, 206
F.3d at 344 (quotation marks and alterations omitted). Therefore, .
. . an inmate who at all relevant times was either not yet convicted
or convicted but not yet sentenced [has] a clearly established
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constitutional right to have prison officials protect him from inmate
violence.[]
Still, not “every injury suffered by one prisoner at the hands
of another . . . translates into constitutional liability for prison
officials responsible for the victim's safety.” Farmer, 511 U.S. at
834[.] To state a claim for damages against a prison official for
failure to protect from inmate violence, an inmate must plead facts
that show (1) he was incarcerated under conditions posing a
substantial risk of serious harm, (2) the official was deliberately
indifferent to that substantial risk to his health and safety, and (3)
the official's deliberate indifference caused him harm. Id. at 834[];
Hamilton, 117 F.3d at 746.
“Deliberate indifference” in this context is a subjective
standard: “the prison official-defendant must actually have known
or been aware of the excessive risk to inmate safety.” Beers–
Capitol, 256 F.3d 120 at 125. It is not sufficient that the official
should have known of the risk. Id. at 133. A plaintiff can,
however, prove an official's actual knowledge of a substantial risk
to his safety “in the usual ways, including inference from
circumstantial evidence.” Farmer, 511 U.S. at 842[.] In other
words, “a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.” Id.
696 F.3d 252, 366-67 (3d Cir. 2012) (discussing claims based on attacks occurring against a pretrial/pre-sentence detainee in 2006-2007).
One species of failure to protect claim which is especially applicable here is one based on
an officers failure to intervene when one prisoner is attacked by another. As the Third Circuit
explained in Bistrian, “a corrections officer who fails to intervene when other officers are beating
an inmate may be liable on a failure-to-protect claim if the officer had ‘a realistic and reasonable
opportunity to intervene’ and ‘simply refused to do so.’” Id at 371. The Third Circuit in that
matter further explained that it “hardly break[s] new ground [to] extend[] this standard to inmateon-inmate attacks.” Id. Indeed, “if an officer witnesses an inmate assault and fails to intervene,
‘his actions would seemingly constitute a paradigm case of deliberate indifference.’” Id. (quoting
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Grieverson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008).
In this matter, Plaintiff has clearly alleged that, at the very least, Defendant Marquez stood
by and watched without intervention as he was brutally beaten with a broom handle, and did not
intervene or attempt to help in any way – including by sounding an alarm or calling for help.
Indeed, Plaintiff has also alleged that she did nothing even though either she herself or one of the
other guards actually locked the door to his cell to cut off his escape from the alleged attack. Thus,
it is clear that Plaintiff has pled more than sufficient facts to show that he was incarcerated under
a situation which presented a substantial harm in so much as he was being beaten with a broom
handle, that Marquez was deliberately indifferent in so much as she was clearly aware of the attack
as she watched it unfold and did nothing to aid him, and that he suffered harm as a result in so
much as he was severely injured by the beating. Thus, whether the claim is characterized as a
classic failure to protect claim, or as a more specific failure to intervene claim (which is itself a
species of failure to protect), Plaintiff has clearly stated a claim for relief as to Marquez’s failure
to halt or otherwise prevent his being beaten in her presence.
Marquez also argues, however, that, although Plaintiff has stated a claim for relief, the
claim against her should still be dismissed on qualified immunity grounds as such a claim was not
clearly established at the time of her actions. This argument is patently without merit. “The
doctrine of qualified immunity shields government officials who perform discretionary functions
‘from liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’” Santini v.
Fuentes, 795 F.3d 410, 417 (3d Cir. 2015) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). In determining whether qualified immunity applies, courts engage in a two-pronged

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analysis. Spady v. Bethlehem Area Sch. Dist., 800 F.3d 633, 637 (3d Cir. 2015). “First a court
must decide ‘whether the facts that a plaintiff has . . . shown make out a violation of a constitutional
right’[, a]nd second, the Court must determine ‘whether the right at issue was clearly established
at the time of [the] defendants alleged misconduct.’” Id. (quoting Pearson v. Callahan, 555 U.S.
223, 232 (2009)). A right is considered clearly established either where there is applicable
Sureme Court precedent on the issue, or where “existing precedent [has] placed the statutory or
constitutional question beyond debate.” Id. (quoting al-Kidd, 131 S. Ct. at 2083). Thus, where
“the firmly settled state of the law, established by a forceful body of persuasive precedent, would
place a reasonable official on notice that his actions obviously violated a clearly established
constitutional right,” the plaintiff’s claim is clearly established, and qualified immunity will not
shield the defendant’s conduct. Id.
As this Court has already determined that Plaintiff has stated a claim for a violation of his
constitutional rights, i.e. Plaintiff’s having been beaten by an inmate in clear view of Marquez and
Marquez’s deliberate indifference to that attack, the only question as to qualified immunity is
whether that claim was clearly established in February 2012. In support of this argument,
Marquez argues that, to the best of her knowledge, Bistrian was the first case in this circuit which
explicitly held that a failure to protect claim brought by a pre-sentence inmate based on an officer’s
failure to intervene in an inmate beating was cognizable under the Fourteenth Amendment.
Counsel, however, does not address the fact that Bistrian explicitly held that such a claim was
clearly established. 696 F.3d at 367, 371. As Bistrian explained, the conclusion that a failure to
protect claim based on such allegations holds under the Fourteenth Amendment was compelled by
the fact that such a claim was clearly established as to convicted prisoners, see Farmer, 511 U.S.

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at 833-34, and by case law establishing that pre-trial detainees have rights at least as protective,
see Fuentes, 206 F.3d at 344; see also City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239,
244 (1983) (due process rights at least as protective as Eighth Amendment rights of convicted
prisoner). Bistrian, 696 F.3d at 367. Likewise, the Third Circuit in Bistrian observed, as has the
Seventh Circuit, that a failure to intervene is a paradigmatic example of a failure to protect claim,
and in no way requires an extension or expansion of the case law to be established. Id. at 371.
The very case Marquez cites for the proposition that Plaintiff’s claim was not clearly established
in 2012 thus directly refutes the claim and explains that such claims were indeed clearly established
and compelled by prior Supreme Court case law. Thus, Marquez is clearly not entitled to
qualified immunity as to this claim based on the facts alleged in the amended complaint.

3. Plaintiff’s Conspiracy to Commit First Amendment Retaliation Claim
Marquez also seeks to have this Court dismiss Plaintiff’s claim for a first amendment
retaliation conspiracy as to her. “In order to plead a retaliation claim under the First Amendment,
a plaintiff must allege: (1) constitutionally protected conduct, (2) retaliatory action sufficient to
deter a person of ordinary firmness from exercising his constitutional rights, and (3) a causal link
between the constitutionally protected conduct and the retaliatory action.”

Thomas v.

Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006); see also Mitchell v. Horn, 318 F.3d 523,
530 (3d Cir. 2003). “The key question in determining whether a cognizable First Amendment
claim has been stated is whether ‘the alleged retaliatory conduct was sufficient to deter a person
of ordinary firmness from exercising his First Amendment rights.” Thomas, 463 F.3d at 296
(quoting McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006)). In his complaint, Plaintiff clearly

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pleads that many of the abuses he suffered by guards other than Marquez were motivated by his
filing civil complaints, and that Officers White and Hamilton set up the assault he suffered at the
hands of another inmate to retaliate against him. Thus, as to White and Hamilton, it is clear that
Plaintiff pleads a cognizable claim for First Amendment Retaliation. As to Marquez, however,
Plaintiff does not directly plead that she refused to protect him or intervene in the assault based on
this same retaliatory motive. Instead, Plaintiff’s retaliation claim as to Marquez depends heavily
upon his allegations that she was part of a conspiracy which caused the attack and then covered up
the alleged misdeeds of White and Hamilton. Plaintiff’s retaliation claim as to Marquez thus rises
and falls with his conspiracy allegations.
To plead a claim for a conspiracy under 42 U.S.C. § 1983,
as with a conspiracy claim under 42 U.S.C. § 1985, a plaintiff must
establish that there was a “meeting of the minds” between the
members of the conspiracy. Startzell v. City of Philadelphia, 533
F.3d 183, 205 (3d Cir. 2008). Thus, a complaint alleging
conspiracy must “provide some factual basis to support the
existence of the elements of a conspiracy: agreement and concerted
action. . . . ” Capogrosso v. The Supreme Court of New Jersey, 588
F.3d 180, 185 (3d Cir. 2009) (quoting Crabtree v. Muchmore, 904
F.2d 1475, 1481 (10th Cir. 1990)). As a plaintiff must provide
sufficient factual support to raise his conspiracy claims above a
speculative level to plausibility, see Twombly, 550 U.S. at 555, “the
bare allegation of an agreement is insufficient to sustain a
conspiracy claim.” Brown v. Deparlos, 492 F. App’x 211, 215 (3d
Cir. 2012). Likewise, it “is insufficient to allege that ‘the end result
of the parties’ independent conduct caused plaintiff harm or even
that alleged perpetrators of the harm acted in conscious
parallelism.’” Desposito v. New Jersey, No. 14-1641, 2015 WL
2131073, at *14 (D.N.J. May 5, 2015) (quoting Novellino v. N.J.
Dep’t of Corr. Mountanview Youth, No. 10-4542, 2011 WL
3418201, at *15 (D.N.J. Aug. 3, 2011).
Parness v. Christie, No. 15-3505, 2015 WL 4997430, at *11 (D.N.J. Aug. 19, 2015).
As Plaintiff has clearly pled that some officers (most notably White and Hamilton) engaged
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in a conspiracy to retaliate against him in violation of the First Amendment, the question as to
Marquez is whether Plaintiff has adequately pled that she was a part of that conspiracy. In his
amended complaint, however, Plaintiff connects Marquez to the alleged conspiracy with only the
following allegation: that Marquez and other officers “[e]ach collectively & individually conspired
to cover up the nature & extent of the assault . . . by . . . filing false reports & attempting to
fabricate, plant, & otherwise create evidence to cover up & minimize the intentional willf[u]l &
criminal actions committed against” Plaintiff. (ECF No. 74 at 10). The problem with this
allegation as to conspiracy is that it is essentially a conclusory allegation as to the two key elements
of conspiracy – agreement and concerted action, as opposed to conscious parallelism.

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conclusory allegation is insufficient to state a plausible claim for relief. Iqbal, 556 U.S. 678. The
facts as pled simply do not provide a plausible basis from which one can infer that Marquez agreed
to engage in this cover up rather than simply wrote the allegedly false reports to protect her own
failure to intervene in the assault. Without further factual allegations to what was “covered up”
by Marquez’s reports or how she covered up the retaliation, as opposed to her failure to protect
Plaintiff, Plaintiff has failed to plead a cognizable conspiracy claim as to his retaliation claim, and
his conspiracy to retaliate claim must be dismissed without prejudice as a result. Id.
The Court notes that this conclusion differs from that drawn in the initial screening opinion
in this matter. The difference between the two conclusions is not without support, however. In
his original complaint, Plaintiff alleged that White and Hamilton ordered Marquez to unlock the
cell of Plaintiff’s attacker so that he could assault Plaintiff, which she then did. That allegation,
if true, would provide a basis to show her complicity with the actions of White and Hamilton to
have Plaintiff attacked based on his prior complaints and are thus sufficient to state a claim as to

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agreement and concerted action. Plaintiff, however, removed that allegation from his amended
complaint, and even when he sought to file a purported second amended complaint did not seek to
re-plead that allegation. (ECF No. 74, 113). Thus, it does not appear that Plaintiff either was
unaware that his amended complaint would replace his original complaint, or in any way intended
the two to be read together to include the excised allegation regarding Marquez. Likewise,
counsel for Plaintiff did not seek to amend Plaintiff’s complaint in response to the motion to
dismiss to re-allege those facts in support of the conspiracy claim. Thus, this Court concludes
that those facts were purposefully removed from Plaintiff’s claims, and does not consider that
removed allegation in this opinion. Without those allegations, Plaintiff pleads only a conclusory
allegation as to the conspiracy, and as such fails to state a claim for conspiracy to retaliate against
him under § 1983 in his amended complaint. Plaintiff’s conspiracy to retaliate claim must
therefore be dismissed without prejudice at this time.

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III. CONCLUSION
For the reasons stated above, this Court grants in part and denies in part Defendant’s motion
to dismiss. An appropriate order follows.

___s/ Susan D. Wigenton____
Hon. Susan D. Wigenton,
United States District Judge

Dated: August 1, 2016

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