Tutora v. Correct Care Solution et al
Filing
37
OPINION AND ORDER: For the reasons stated above, Defendants' Motion To Dismiss is granted. Because this is the first adjudication of Plaintiff's claims, dismissal is without prejudice. If Plaintiff wishes to file an amended complaint, P laintiff must do so within 30 days of the date of this Opinion. Plaintiff should include within that amended complaint all changes to correct the deficiencies identified in this Opinion that Plaintiff wishes the Court to consider. Plaintiff is a dvised that the amended complaint will replace, not supplement, the instant Complaint. The amended complaint must contain all of the claims and factual allegations that Plaintiff wishes the Court to consider. If Plaintiff fails to abide by the 30-day deadline, his claims may be dismissed with prejudice. The Clerk is respectfully directed to terminate the pending Motion, (see Dkt. No. 27), and to mail a copy of this Opinion and Order to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/27/2019) (jca) Transmission to Docket Assistant Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
JEREMY L. TUTORA,
Plaintiff,
No. 17-CV-9169 (KMK)
v.
OPINION & ORDER
CORRECT CARE SOLUTIONS, LLC;
DOCTOR FELDMAN,
Defendants.
Appearances:
Jeremy L. Tutora
Endwell, NY
Pro Se Plaintiff
Jonathan H. Bard, Esq.
Paul A. Sanders, Esq.
Barclay Damon, LLP
Albany, NY
Rochester, NY
Counsel for Defendants
KENNETH M. KARAS, United States District Judge:
Jeremy Tutora (“Plaintiff”) brings this pro se Action, pursuant to 42 U.S.C. § 1983,
against Correct Care Solutions (“Correct Care”) and Sorel Feldman, M.D. (“Dr. Feldman”)
(collectively, “Defendants”), alleging that Defendants failed to provide him with adequate
medical care while incarcerated at Orange County Jail as a pre-trial detainee, in violation of his
rights under the Fourteenth Amendment. (See Compl. (Dkt. No. 2).) Before the Court is
Defendants’ Motion To Dismiss. (Not. of Mot. (Dkt. No. 27).) For the following reasons, the
Motion is granted.
I. Background
A. Factual Background
The following facts are drawn from Plaintiff’s Complaint and are taken as true for the
purpose of resolving the instant Motion.
On May 27, 2016, Plaintiff was in a car accident in which he sustained “severe” injuries
to his neck and back, including “whiplash,” “nerve damage, post concussive syndrome, severe
migraines, nausea[,] and vomiting.” (Compl. 3.) 1 He received medical treatment, “was actively
under supervision of a rehabilitation and pain specialist,” and was “regularly” receiving
acupuncture. (Id.)
On July 31, 2017, Plaintiff entered Orange County Jail as a pre-trial detainee. (Id.)
Plaintiff alleges that he is “not receiving adequate care or proper regard” for his injuries. (Id.) In
particular, Plaintiff alleges that he “asked for [a] muscle rub, [a] more efficient mattress, [a] back
brace, and even a cervical collar to help” relieve his pain. (Id.) However, Plaintiff’s “request[s]
for relief” to the Jail’s “medical department” — which is run by Correct Care and “overseen by
Doctor Feldman” — have “been denied despite the visual effects of [his] injuries” and what the
“outside medical records show.” (Id.) Plaintiff alleges that, “due to the lack of care,”
“incompetent decisions,” and “neglect,” he has “developed [s]ciatic nerve damage” and
numbness in his left leg, “causing [him] to walk with a limp.” (Id.) Finally, Plaintiff alleges that
“overcrowdedness prevented [him] from being in a safe medical setting – which Dr. Feldman
denied.” (Id.)
1
Plaintiff’s filings do not use consistent page numbering. For ease of reference, the
Court cites to the ECF-generated page numbers stamped at the top of each page.
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B. Procedural Background
Plaintiff filed his Complaint on November 21, 2017. (Dkt. No. 2.) Plaintiff’s request to
proceed in forma pauperis was granted on January 3, 2018. (Dkt. No. 8.) On May 16, 2018,
Defendants filed a letter seeking a pre-motion conference in anticipation of moving to dismiss.
(Dkt. No. 22.) On May 21, 2018, Plaintiff filed a “rebuttal” to Defendant’s letter. (Dkt. No. 23.)
On June 4, 2018, the Court set a briefing schedule. (Dkt. No. 24.) Defendants filed their Motion
To Dismiss and accompanying papers on July 16, 2018. (Not. of Mot.; Decl. of Jonathan H.
Bard, Esq. in Supp. of Mot. (Dkt. No. 28); Mem. of Law in Supp. of Mot. (“Defs.’ Mem.”) (Dkt.
No. 29).) On August 15, 2018, Plaintiff filed his response in opposition to the Motion. (Pl.’s
Resp. to Def.’s Mot. (“Pl.’s Mem.”) (Dkt. No. 31).) On August 31, 2018, Defendants filed a
reply. (Reply Mem. of Law in Supp. of Mot. (“Defs.’ Reply”) (Dkt. No. 33).)
II. Discussion
Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil Procedure
12(b)(6) on grounds that the Complaint fails to state a Monell claim, fails to state a deliberateindifference claim, and fails to state any state-law claim. (Defs.’ Mem. 5–17.) The Court
addresses each argument separately.
A. Standard of Review
The Supreme Court has held that, while a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations, quotation marks, and alterations omitted). Indeed, Rule 8 of the Federal Rules of Civil
Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders naked
assertions devoid of further factual enhancement.” Id. (quotation marks and alteration omitted).
Rather, a complaint’s “[f]actual allegations must be enough to raise a right to relief above the
speculative level.” Twombly, 550 U.S. at 555. Although “once a claim has been stated
adequately, it may be supported by showing any set of facts consistent with the allegations in the
complaint,” id. at 563, and a plaintiff need allege “only enough facts to state a claim to relief that
is plausible on its face,” id. at 570, if a plaintiff has not “nudged [his or her] claim[] across the
line from conceivable to plausible, the[] complaint must be dismissed,” id.; see also Iqbal, 556
U.S. at 679 (“Determining whether a complaint states a plausible claim for relief will . . . be a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense. But where the well-pleaded facts do not permit the court to infer more than the
mere possibility of misconduct, the complaint has alleged — but it has not ‘show[n]’ — ‘that the
pleader is entitled to relief.’” (citation omitted) (second alteration in original) (quoting Fed. R.
Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous departure from the
hypertechnical, code-pleading regime of a prior era, but it does not unlock the doors of discovery
for a plaintiff armed with nothing more than conclusions.”).
In considering a motion to dismiss, the Court “must accept as true all of the factual
allegations contained in the complaint.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam); see also Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (“In addressing the sufficiency
of a complaint we accept as true all factual allegations . . . .” (quotation marks omitted)).
Further, “[f]or the purpose of resolving [a] motion to dismiss, the Court . . . draw[s] all
reasonable inferences in favor of the plaintiff.” Daniel v. T & M Prot. Res., Inc., 992 F. Supp. 2d
302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145 (2d Cir.
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2012)). Where, as here, a plaintiff proceeds pro se, the “complaint[] must be construed liberally
and interpreted to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of Am., 723
F.3d 399, 403 (2d Cir. 2013) (per curiam) (quotation marks omitted). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedural and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559
(S.D.N.Y. 2013) (quotation marks omitted); see also Caidor v. Onondaga County, 517 F.3d 601,
605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves regarding
procedural rules and to comply with them.” (italics and quotation marks omitted)).
Generally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must confine its
consideration to facts stated on the face of the complaint, in documents appended to the
complaint or incorporated in the complaint by reference, and to matters of which judicial notice
may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999) (quotation
marks and citation omitted). When a plaintiff proceeds pro se, however, the Court may consider
“materials outside the complaint to the extent that they are consistent with the allegations in the
complaint,” Alsaifullah v. Furco, No. 12-CV-2907, 2013 WL 3972514, at *4 n.3 (S.D.N.Y. Aug.
2, 2013) (quotation marks omitted), including, as relevant here, “documents that a pro se litigant
attaches to his opposition papers,” Agu v. Rhea, No. 09-CV-4732, 2010 WL 5186839, at *4 n.6
(E.D.N.Y. Dec. 15, 2010) (italics omitted).
B. Analysis
1. Monell Liability
Plaintiff does not indicate whether he sues Defendants in their individual or official
capacities. (See generally Compl.) In such instances, courts often construe such claims as
brought in both capacities. See, e.g., Frank v. Relin, 1 F.3d 1317, 1326 (2d Cir. 1993) (“[A]
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plaintiff who has not clearly identified . . . the capacity in which the defendant is sued should not
have the complaint automatically construed as focusing on one capacity to the exclusion of the
other.”); Jackson v. Ramirez, No. 15-CV-617, 2016 WL 796854, at *5 (S.D.N.Y. Feb. 22, 2016)
(construing complaint “as being brought against the state defendants in both their individual and
official capacities” in light of Frank), aff’d, 691 F. App’x 45 (2d Cir. 2017).
“A claim asserted against a [defendant] in his official capacity . . . is in effect a claim
against the governmental entity itself . . . for ‘official-capacity suits generally represent only
another way of pleading an action against an entity of which an officer is an agent.’” Lore v.
City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012) (quoting Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 690 n.55 (1978)). “Congress did not intend municipalities to be held liable [under
§ 1983] unless action pursuant to official municipal policy of some nature caused a constitutional
tort.” Monell, 436 U.S. at 691. Thus, “to prevail on a claim against a municipality under
[§] 1983 based on acts of a public official, a plaintiff is required to prove: (1) actions taken under
color of law; (2) deprivation of a constitutional or statutory right; (3) causation; (4) damages; and
(5) that an official policy of the municipality caused the constitutional injury.” Roe v. City of
Waterbury, 542 F.3d 31, 36 (2d Cir. 2008) (citing Monell, 436 U.S. at 690–91). In other words,
a municipality may not be held liable under § 1983 “by application of the doctrine of respondeat
superior.” Pembaur v. City of Cincinnati, 475 U.S. 469, 478 (1986) (italics omitted). Rather,
“municipalities may only be held liable when the municipality itself deprives an individual of a
constitutional right.” Newton v. City of New York, 566 F. Supp. 2d 256, 270 (S.D.N.Y. 2008). A
plaintiff may satisfy the fifth element by alleging one of the following:
(1) a formal policy officially endorsed by the municipality; (2) actions taken by
government officials responsible for establishing the municipal policies that caused
the particular deprivation in question; (3) a practice so consistent and widespread
that, although not expressly authorized, constitutes a custom or usage of which a
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supervising policy-maker must have been aware; or (4) a failure by policymakers
to provide adequate training or supervision to subordinates to such an extent that it
amounts to deliberate indifference to the rights of those who come into contact with
the municipal employees.
Brandon v. City of New York, 705 F. Supp. 2d 261, 276–77 (S.D.N.Y. 2010) (citations omitted).
Moreover, a plaintiff also must establish an “affirmative” causal link between the municipality’s
policy, custom, or practice and the alleged constitutional injury. Oklahoma City v. Tuttle, 471
U.S. 808, 824 n.8 (1985).
Plaintiff fails entirely to allege the fifth Monell element. Plaintiff does not allege that
Orange County Jail (or any other municipal entity) had a formal policy on medical care relevant
here, such as a policy regarding care of inmates with orthopedic, neck, or back problems. Nor
does Plaintiff cite to any examples of similar incidents — for example, other denials of care for
pre-existing injuries or instances of inadequate care for neck and back injuries — that would
suggest an informal municipal custom or practice. See Perez v. Annucci, No. 18-CV-147, 2019
WL 1227801, at *5 (S.D.N.Y. Mar. 15, 2019) (“The amended complaint does not allege any
other specific instances of excessive force at Green Haven or any other DOCCS facility, nor does
plaintiff specifically allege any other inmate in DOCCS custody suffered excessive force.”);
Triano v. Town of Harrison, 895 F. Supp. 2d 526, 532 (S.D.N.Y. 2012) (“Normally, a custom or
policy cannot be shown by pointing to a single instance of unconstitutional conduct by a mere
employee of the municipality.” (alteration and quotation marks omitted)); Gordon v. City of New
York, No. 10-CV-5148, 2012 WL 1068023, at *4 (E.D.N.Y. Mar. 29, 2012) (dismissing Monell
claim where the plaintiff’s “allegation [was] unsupported by anything other than the facts of
what occurred in his particular case”); see also Iacovangelo v. Corr. Med. Care, Inc., 624 F.
App’x 10, 14 (2d Cir. 2015) (affirming dismissal of Monell claim where “the amended complaint
provides only one additional example of a similar incident”).
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Therefore, Plaintiff fails to allege the fifth element required to state a Monell claim.
Accordingly, Plaintiff’s claim against Correct Care, as well as Plaintiff’s claim against Dr.
Feldman in his official capacity, must be dismissed. See McKenzie v. City of Mount Vernon, No.
18-CV-603, 2018 WL 6831157, at *7 (S.D.N.Y. Dec. 28, 2018) (dismissing Monell claim where
the plaintiff did “not allege any facts suggesting a policy or custom that led to [the] alleged”
constitutional deprivation); 5 Borough Pawn, LLC v. City of New York, 640 F. Supp. 2d 268, 300
(S.D.N.Y. 2009) (dismissing Monell claim where the “plaintiffs fail[ed] to allege any facts
showing that there is a [c]ity policy — unspoken or otherwise — that violates the Federal
Constitution”).
2. Deliberate Indifference
Plaintiff alleges that Defendants were deliberately indifferent to his health while
incarcerated at Orange County Jail. (See Compl 3.) Because Plaintiff was a pretrial detainee at
the time of the allegations, his deliberate-indifference claims are analyzed under the Due Process
Clause of the Fourteenth Amendment. See Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir. 2000).
The Second Circuit recently held that deliberate-indifference claims under the Fourteenth
Amendment are analyzed somewhat differently than the same claims under the Eighth
Amendment, which applies to inmates who have been convicted and sentenced. See Darnell v.
Pineiro, 849 F.3d 17, 35 (2d Cir. 2017). To be sure, the overarching framework remains the
same. Under both the Eighth and Fourteenth Amendments, to state a deliberate-indifference
claim an inmate must plausibly allege (1) “that he suffered a sufficiently serious constitutional
deprivation,” and (2) that the defendant “acted with deliberate indifference.” Feliciano v.
Anderson, No. 15-CV-4106, 2017 WL 1189747, at *8 (S.D.N.Y. Mar. 30, 2017) (citing Darnell,
849 F.3d at 29).
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The first element “is evaluated the same way under both the Eighth Amendment and
Fourteenth Amendment.” Ackridge v. Aramark Corr. Food Servs., No. 16-CV-6301, 2018 WL
1626175, at *19 n.19 (S.D.N.Y. Mar. 30, 2018) (citing Darnell, 849 F.3d at 30). This
requirement is “objective”: The inmate must show that the “the alleged deprivation” is
“sufficiently serious.” Spavone v. N.Y. State Dep’t of Corr. Servs., 719 F.3d 127, 138 (2d Cir.
2013) (citation and quotation marks omitted). In other words, the inmate must show that he was
“incarcerated under conditions posing a substantial risk of serious harm.” Blandon v. Capra, No.
17-CV-65, 2017 WL 5624276, at *7 (S.D.N.Y. Nov. 20, 2017) (quoting Hayes v. N.Y.C. Dep’t of
Corrs., 84 F.3d 614, 620 (2d Cir. 1996)).
The second element “applies differently to claims under the Eighth Amendment and the
Fourteenth Amendment.” Howard v. Brown, No. 15-CV-9930, 2018 WL 3611986, at *4
(S.D.N.Y. July 26, 2018) (citing Darnell, 849 F.3d at 34–35). While the Eighth Amendment
“imposes a subjective standard” — that the prison official “know[] of and disregard[] an
excessive risk to inmate health or safety” — the Fourteenth Amendment, applicable here,
imposes an “objective standard.” Id. (citing Darnell, 849 F.3d at 32). That is, the “official need
only recklessly fail[] to act with reasonable care to mitigate the risk that the condition posed to
the pretrial detainee even though the defendant-official knew, or should have known, that the
condition posed an excessive risk to health or safety.” Id. (citing Darnell, 849 F.3d at 35).
However, “[d]espite the slightly lower standard” applicable to pretrial detainees, “which is akin
to objective recklessness, any § 1983 claim or a violation of due process requires proof of a mens
rea greater than mere negligence.” Miller v. County of Nassau, No. 16-CV-5843, 2018 WL
1597401, at *3 (E.D.N.Y. Mar. 31, 2018) (ultimately quoting Darnell, 849 F.3d at 36). That is
because “liability for negligently inflicted harm is categorically belief the threshold of
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constitutional due process.” Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015) (citation,
quotation marks, and emphasis omitted).
Defendants argue that the Complaint fails to allege facts sufficient to satisfy either
element required to state a deliberate-indifference claim under the Fourteenth Amendment. (See
Defs.’ Mem. 5–8, 10–16.)
Even assuming Defendants’ denial of medical care of Plaintiff’s neck and back injuries is
“sufficiently serious” to satisfy the objective element, Spavone, 719 F.3d at 138, Plaintiff fails to
allege facts plausibly suggesting that either Dr. Feldman or Correct Care acted with the
“objective recklessness” required to satisfy the mental-state element, Miller, 2018 WL 1597401,
at *3. The Complaint alleges that Plaintiff “asked for [a] muscle rub, [a] more efficient mattress,
[a] back brace, and . . . a cervical collar to help” relieve his pain, and that Plaintiff’s “request[s]
for relief” were “denied” by Dr. Feldman “despite the visual effects of [his] injuries” and what
the “outside medical records show.” (Compl. 3) The Complaint also alleges that
“overcrowdedness prevented [Plaintiff] from being in a safe medical setting – which Dr.
Feldman denied.” (Id.) These threadbare allegations do not plausibly suggest objective
recklessness. Plaintiff does not allege how many times he requested these treatments, whether he
continued to be denied these treatments after his conditions allegedly worsened, whether he was
given other medication or treatment or was entirely denied medical care, what the “outside
medical records” would have indicated to Defendants about his condition, whether these records
were made known or available to Defendants, or, indeed, what he means by his conclusory
allegation of “overcrowdedness.” “While Plaintiff did not receive his desired treatment . . . , ‘it
is well-settled that the ultimate decision of whether or not to administer a treatment or
medication is a medical judgment that, without more, does not amount to deliberate
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indifference.’” Crouch v. Spaulding, No. 16-CV-1435, 2019 WL 1004539, at *4 (N.D.N.Y. Jan.
24, 2019) (emphasis added) (quoting Washington v. Westchester County Dep’t of Corr., No. 13CV-5322, 2014 WL 1778410, at *6 (S.D.N.Y. Apr. 25, 2014)); see also Durham v. Jones, No.
17-CV-434, 2019 WL 1103284, at *5 (N.D.N.Y. Jan. 23, 2019) (“The fact that [the plaintiff]
may feel that he did not get the level of medical attention he deserved is insufficient to establish
a claim.” (citation omitted)). The Complaint does not allege what “more” took place here; the
facts as alleged do not plausibly suggest that Defendants “should have known” that Plaintiff’s
“condition posed an excessive risk to [his] health.” Darnell, 849 F.3d at 35 (emphasis added);
see also, e.g., Sanders v. City of New York, No. 16-CV-7426, 2018 WL 3117508, at *8
(S.D.N.Y. June 25, 2018) (holding deliberate indifference not established where “none of the[]
allegations demonstrates that [the defendants] ‘knew, or should have known’ that depriving [the
plaintiff] of an orthopedic mattress posed an ‘excessive risk’ to his ‘health or safety.’” (quoting
Darnell, 849 F.3d at 35)); Benjamin v. Pillai, No. 16-CV-1721, 2018 WL 704998, at *4 (D.
Conn. Feb. 5, 2018) (holding claim that the defendants “refus[ed] to provide [the plaintiff] a cane
or a back brace . . . amounts to nothing more than a disagreement about the appropriate
treatment, which is insufficient to support a claim of deliberate indifference”).
Indeed, the Complaint explicitly alleges that it was Defendants’ “neglect” and
“incompetent decisions” that caused him to suffer nerve damage, leg numbness, a limp, and
related injuries. (Compl. 3; see also Pl.’s Mem. 11 (arguing that “Dr. Feldman continued to
make incompetent decisions” and “was so grossly incompetent [that] he had nurses under him
making decisions for inmate patients”).) Yet, allegations of “mere negligence will not suffice” to
state a claim of deliberate indifference. Hayes v. N.Y.C. Dep’t of Corrs., 84 F.3d 614, 620 (2d
Cir. 1996); see also Darnell, 849 F.3d at 36 (“[A]ny § 1983 claim for a violation of due process
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requires proof of a mens rea greater than mere negligence.”); Colvin v. UConn Corr. Managed
Health Care, No. 19-CV-289, 2019 WL 1230361, at *2 (D. Conn. Mar. 15, 2019) (“Allegations
of mere negligence or medical malpractice do not rise to the level of deliberate indifference and
are not cognizable under § 1983.” (citing Salahuddin v. Goord, 467 F.3d 263, 280–81 (2d Cir.
2006))); Davidson v. Scully, 155 F. Supp. 2d 77, 88 n.13 (S.D.N.Y. Aug. 22, 2001) (holding that
“poor medical judgment does not constitute deliberate indifference”). Accordingly, Plaintiff’s
Fourteenth Amendment deliberate-indifference claim fails.
3. State-Law Claims
Although Plaintiff’s Complaint does not explicitly allege any state-law claim, the
Complaint may be read to suggest state-law claims of negligence and medical malpractice. (See
generally Compl.). The Court need not, however, resolve at this time whether Plaintiff
sufficiently alleges any state-law claim. Because Plaintiff fails to state a § 1983 claim as to any
Defendant, the Court declines at this time to exercise supplemental jurisdiction over any statelaw claims alleged. See Matican v. City of New York, 524 F.3d 151, 154–55 (2d Cir. 2008).
III. Conclusion
For the reasons stated above, Defendants’ Motion To Dismiss is granted. Because this is
the first adjudication of Plaintiff’s claims, dismissal is without prejudice. If Plaintiff wishes to
file an amended complaint, Plaintiff must do so within 30 days of the date of this Opinion.
Plaintiff should include within that amended complaint all changes to correct the deficiencies
identified in this Opinion that Plaintiff wishes the Court to consider. Plaintiff is advised that the
amended complaint will replace, not supplement, the instant Complaint. The amended complaint
must contain all of the claims and factual allegations that Plaintiff wishes the Court to consider.
If Plaintiff fails to abide by the 30-day deadline, his claims may be dismissed with prejudice.
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