MCNEILL v. SCOTT et al
Filing
63
MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE signed by MAG/JUDGE L. PATRICK AULD on 8/19/2015; that Defendants Scott and Cleary's Motion for Summary Judgment (Docket Entry 52 ) be denied, and that Defendants Grady and Rodger's Motion for Summary Judgment (Docket Entry 54 ) be granted in part and denied in part, in that the Court should enter judgment in their favor on Plaintiff's Eighth Amendment and official capacity claims. (Sheets, Jamie)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
EMMIT L. MCNEILL,
Plaintiff,
v.
PTL. BRANDON SCOTT, et al.,
Defendants.
)
)
)
)
)
)
)
)
)
1:09CV698
MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The instant case comes before the undersigned United States
Magistrate Judge for recommended rulings on Defendants Cleary and
Scott’s
Motion
for
Summary
Judgment
(Docket
Entry
52)
and
Defendants Grady and Rodger’s Motion for Summary Judgment (Docket
Entry 54).
For the reasons that follow, the Court should deny
Defendants Cleary and Scott’s instant Motion, and the Court should
grant in part and deny in part Defendants Grady and Rodger’s
instant Motion.
I. PROCEDURAL HISTORY
Plaintiff’s Amended Complaint purports to allege violations of
the Fourth and Eighth Amendments of the United States Constitution
for
excessive
force
(against
Defendant
Scott)
and
bystander
liability (against the remaining Defendants), as actionable under
42
U.S.C.
capacities.
§
1983,
in
Defendants’
(Docket Entry 31 at 9.)
individual
and
official
After Plaintiff filed his
Amended Complaint, Defendants Scott and Cleary (collectively the
“Raeford City Defendants”) filed a Motion to Dismiss Plaintiff’s
official capacity claims.
(Docket Entry 33.)
The Court granted
the Motion and dismissed the official capacity claims against the
Raeford City Defendants.
(Docket Entry 43.)
The Raeford City Defendants filed their Motion for Summary
Judgment first (Docket Entry 52), which contends that Defendant
Scott used reasonable force in apprehending Plaintiff such that
qualified
immunity
precludes
this
action
(Docket
Entry
53).
Similarly, Defendants Rodger and Grady’s (collectively the “Hoke
County Defendants”) Motion for Summary Judgment (Docket Entry 54)
argues that qualified immunity applies to their conduct, and,
further, that Plaintiff has failed to establish a violation of the
Eighth Amendment or provide any basis for his official capacity
claims (Docket Entry 55).
Plaintiff responded (Docket Entry 59)
and also filed an affidavit containing his version of the events
from that morning (Docket Entry 59-1). The Raeford City Defendants
and the Hoke County Defendants replied, arguing that summary
judgment remains appropriate.
(Docket Entries 60, 61.)
II. FACTUAL BACKGROUND
This
case
arises
from
Defendant
Scott’s
alleged
use
of
excessive force against Plaintiff and the remaining Defendants’
failure to intervene.
(Docket Entry 31.)
As detailed below, the
parties present markedly different versions of events.
2
A.
Defendants’ Version
In the early morning of February 27, 2009, while on patrol in
Raeford, North Carolina, Defendant Grady noticed an individual
(later identified as Plaintiff) running away from a Burger King
with a bag in hand toward an apartment complex.
1, ¶ 6.)
(Docket Entry 54-
At the same time, Defendant Rodger, attempting to meet
Defendant Grady, also noticed Plaintiff fleeing the Burger King.
(Docket Entry 54-2, ¶ 6.)
Immediately thereafter, Defendant Grady
received radio notice of a possible armed robbery of the Burger
King.
(Docket Entry 54-1, ¶ 6.)
began pursuing Plaintiff.
Both the Hoke County Defendants
(Id., ¶ 7; Docket Entry 54-2, ¶ 7.)
At that time, the Raeford City Defendants separately received
notice of the armed robbery and headed towards the scene.
Entry 53-1, ¶¶ 4-5; Docket Entry 53-2, ¶¶ 4-5.)
(Docket
The Hoke County
Defendants returned to the scene and met with the Defendant Scott
to discuss the situation.
(Docket Entry 53-1, ¶ 6.)
Defendants
then began searching the nearby apartment complex for Plaintiff.
(Docket Entry 53-1, ¶¶ 8-9; Docket Entry 53-2, ¶ 8; Docket Entry
54-1, ¶¶ 9-10; Docket Entry 54-2, ¶ 8.)
Eventually, Defendant
Grady located Plaintiff, under a hedge, and radioed the other
Defendants for backup.
(Docket Entry 53-1, ¶¶ 10-11; Docket Entry
53-2, ¶ 9; Docket Entry 54-1, ¶¶ 10-11; Docket Entry 54-2, ¶ 8.)
Upon discovering Plaintiff, Defendant Grady drew his service
weapon and ordered Plaintiff to come out from the hedge (Docket
3
Entry 54-1, ¶ 11), and Defendants Scott and Rodger arrived soon
after (Docket Entry 53-1, ¶ 11; Docket Entry 54-2, ¶ 8).
point,
either
Defendant
handcuffed Plaintiff.
Grady
or
Defendants
Grady
At this
and
Scott
(Compare Docket Entry 53-1, ¶ 12 (Defendant
Scott claiming that he assisted Defendant Grady in handcuffing
Plaintiff),
and
Docket
Entry
54-1,
¶
11
(Defendant
Grady’s
statement: “I was one of the officers who placed Plaintiff in
handcuffs.”), with Docket Entry 54-2, ¶ 8 (Defendant Rodgers
claiming that Defendant Grady placed Plaintiff in handcuffs).)
Before leaving, the Hoke County Defendants turned over custody of
Plaintiff to Defendant Scott, who then radioed for Defendant Cleary
to bring his car around to transport Plaintiff to the police
station.
(Docket Entry 53-1, ¶ 13.)
Defendant Scott escorted Plaintiff towards Defendant Cleary’s
patrol vehicle.
(Id., ¶ 14.)
However, while en route, Plaintiff
began resisting by standing on his toes and kicking his feet back
at Defendant Scott.
(Id.)
In an attempt to regain control of
Plaintiff, Defendant Scott tripped Plaintiff and took him to the
ground.
(Id., ¶¶ 15-16.)
Defendant Cleary, having moved his
patrol car to collect Plaintiff, observed Defendant Scott and
Plaintiff hit the ground but could not tell what caused them to
fall.
(Docket Entry 53-2, ¶¶ 10, 14.)
Defendant Scott told
Plaintiff to calm down and regained control of him before standing
himself and Plaintiff up (Docket Entry 53-1, ¶¶ 16-17); they then
4
walked to Defendant Cleary’s patrol car and Defendant Cleary
transported Plaintiff to the Police Department (id., ¶ 17; Docket
Entry 53-2, ¶ 16).
B.
Plaintiff’s Version
Plaintiff’s affidavit begins with Defendant Grady discovering
his location.
(Docket Entry 59-1, ¶ 3.)
Plaintiff states that he
complied with Defendant Grady’s commands to come out from under the
hedge, and that Defendant Grady then handcuffed Plaintiff as he
laid face down on the ground.
(Id.)
While Plaintiff remained
handcuffed on the ground and compliant with Defendant Grady’s
commands, Defendant Scott arrived, jumped in the air, and slammed
his knee into Plaintiff’s back.
(Id., ¶ 4.)
Plaintiff further
asserts that Defendant Scott then hit Plaintiff in the arm, side,
thigh, and ankle for approximately one minute while Deputy Nall1
and Defendants Clear, Rodger, and Tracy stood by and watched.
(Id., ¶ 5.)
According to Plaintiff, Defendant Grady and either
Deputy Nall or Defendant Cleary eventually interceded and stopped
Defendant Scott.
(Id., ¶ 6.)
Plaintiff insists that he complied
with Defendant Grady’s commands and did not resist in any fashion.
(Id., ¶ 7.)
Plaintiff’s affidavit does not detail his walk to Defendant
Cleary’s patrol car other than to deny kicking at Defendant Scott
1
This action does not name Deputy Nall as a defendant.
Docket Entry 31 at 6.)
5
(See
and, indeed, Plaintiff denies that Defendant Scott walked him to
the patrol car.
(Id., ¶¶ 10-11.)
III. ANALYSIS
The Court should grant a motion for summary judgment when
“there is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
56(a).
Fed. R. Civ. P.
A genuine dispute exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
This
standard requires more than a mere scintilla of evidence. American
Arms Int’l v. Herbert, 563 F.3d 78, 82 (4th Cir. 2009).
In
considering a motion for summary judgment, the Court must view the
facts
and
draw
all
reasonable
inferences
favorable to the nonmoving party.
in
the
light
most
Miller v. Leathers, 913 F.2d
1085, 1087 (4th Cir. 1990) (en banc).
The Court also must presume
the credibility of all of the nonmovant’s evidence.
Id.
The party
seeking summary judgment has the initial burden to show an absence
of evidence to support the nonmoving party’s case.
v. Catrett, 477 U.S. 317, 325 (1986).
Celotex Corp.
The opposing party then must
demonstrate that a triable issue of fact exists; he may not rest
upon mere allegations or denials.
Anderson, 477 U.S. at 248.
A
party need not submit evidence in an admissible form, but the
evidence must otherwise qualify for admission at trial.
Corp., 477 U.S. at 324.
6
Celotex
“Qualified immunity is ‘an entitlement not to stand trial or
face the other burdens of litigation.’” Brown v. Gilmore, 278 F.3d
362, 366-67 (4th Cir. 2002) (quoting Mitchell v. Forsyth, 427 U.S.
511, 526 (1985)).
“The Supreme Court has directed that ‘qualified
immunity questions should be resolved at the earliest possible
stage of a litigation.’”
Smith v. Reddy, 101 F.3d 351, 357 (4th
Cir. 1996) (quoting Anderson v. Creighton, 483 U.S. 635, 646 n.6
(1987)).
Qualified
immunity
involves
a
two-step
analysis.
Williams v. Ozmint, 716 F.3d 801, 805 (4th Cir. 2013).
The Court
must consider (1) “whether a constitutional violation occurred,”
and (2) if “the right violated was ‘clearly established’ at the
Id.2
time of the official’s conduct.”
The undersigned will first consider the claim of excessive
force against Defendant Scott as any finding of bystander liability
for the remaining Defendants relies on Defendant Scott’s alleged
excessive force.
See Thomas v. Holly, 533 F. App’x 208, 221 (4th
Cir. 2013) (noting that a finding of bystander liability for a
defendant
required
defendant).
a
finding
of
excessive
force
by
another
After addressing the claims against Defendants in
their individual capacities, the undersigned will address the Hoke
County Defendants’ challenges to Plaintiff’s Eighth Amendment claim
and the official-capacity claims.
2
In this case, Defendants only address the first prong of
qualified immunity (see Docket Entry 53 at 11, 12; Docket Entry 55
at 7), so this Memorandum Opinion will proceed in a like fashion.
7
A.
Defendant Scott
Under the facts averred by Plaintiff (detailed in Section
II.B.),
Defendant
Scott
acted
with
Plaintiff’s February 27, 2009 arrest.
excessive
force
during
Excessive force arrest
claims fall under the Fourth Amendment’s “objective reasonableness”
standard.
Gilmore, 278 F.3d at 369.
“In evaluating excessive
force claims, ‘the reasonableness of the officer’s belief as to the
appropriate level of force should be judged from that on-scene
perspective.’”
Id. (quoting Saucier v. Katz, 533 U.S. 194, 205
(2001)). The Court should consider the “facts and circumstances of
each particular case, including the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the
officers or others, and whether he is actively resisting arrest or
attempting to evade arrest by flight.”
386, 396 (1989).
Graham v. Connor, 490 U.S.
“The extent of the plaintiff’s injury is also a
relevant consideration.” Jones v. Buchanan, 325 F.3d 520, 527 (4th
Cir. 2003).
Defendant Scott argues that his actions did not rise to the
level of a constitutional violation, and, thus, qualified immunity
shields his actions. (Docket Entry 53 at 7-11.) Defendant Scott’s
argument rests primarily on his version of events from that morning
(see id.; Docket Entry 60 at 2-5; see also Docket Entry 53-1
(Defendant Scott’s affidavit)); however, the relevant inquiry here
8
concerns the facts in the light most favorable to Plaintiff, see
Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011).
Defendant Scott attempts to avoid this rule by relying on
Scott v. Harris, 550 U.S. 372, 380 (2007).
(See Docket Entry 60 at
2-3.)
In Scott, the United States Supreme Court addressed the
effect
of
judgment.
an
uncontested
videotape
on
Scott, 550 U.S. at 378-79.
a
motion
for
summary
That case concerned a
Section 1983 claim against a police officer who stopped a highspeed chase by intentionally wrecking the plaintiff’s car.
374-75.
Id. at
The defendants moved for summary judgment on the basis of
qualified immunity, but the district court denied the motion
finding that a genuine dispute of fact existed, which the United
States Court of Appeals for the Eleventh Circuit affirmed.
376.
Id. at
Upon review, the Supreme Court noted the existence of the
videotape recording the car chase and found that it contradicted
the plaintiff’s version of events.
Id. at 378-79.
Significantly,
the Court noted that no dispute existed as to the videotape’s
authenticity or accuracy.
Id. at 378.
Relying on the videotape,
the Court rejected the plaintiff’s version of events for purposes
of analyzing the motion for summary judgment and reversed the
Eleventh Circuit.
Id. at 380-81, 386.
This case does not resemble Scott.
Here, the evidence before
this Court consists of contradictory affidavits between Plaintiff
and Defendants. (See Docket Entries 53-1, 53-2, 54-1, 54-2, 59-1.)
9
That fact precludes reliance on Scott.
See Stout v. Reuschling,
Civ. Act. No. TDC-14-1555, 2015 WL 1461366, at *10 (D. Md. Mar. 26,
2015) (unpublished) (“The evidence offered in this case is simply
not on equal foo[t]ing with the type of evidence that documented
the incident with the level of certain[t]y and reliability as the
videotapes in Scott . . . .
Where, as here, the parties offer
dueling affidavits with substantially different accounts, Scott
instructs that ‘in such posture, courts are required to view the
facts and draw reasonable inferences in the light most favorable to
the party opposing the summary judgment motion.’” (quoting Scott,
550 U.S. at 378)).
“It is not [the Court’s] job to weigh the
evidence, to count how many affidavits favor the plaintiff and how
many oppose him, or to disregard stories that seem hard to believe.
Those tasks are for the jury.”
Gray v. Spillman, 925 F.2d 90, 95
(4th Cir. 1991) (internal citation omitted).
Accordingly the
undersigned will analyze the instant Motions under Plaintiff’s
version of events.
The facts described by Plaintiff, in light of Graham, lead to
the conclusion that a reasonable jury could find that Defendant
Scott used excessive force against Plaintiff.
The first Graham
factor, the severity of the crime at issue, favors Defendant Scott.
At the time of the arrest, Defendants believed that Plaintiff had
committed an armed robbery.
(See Docket Entry 53-1, ¶ 5; Docket
Entry 53-2, ¶ 5; Docket Entry 54-1, ¶ 6.)
10
In addressing a
qualified immunity defense, a member of this Court previously found
that robbery qualifies as a serious crime.
Maney v. Fealy, 69 F.
Supp. 3d 553, 561 (M.D.N.C. 2014) (Beaty, J.), appeal filed, No.
14-7791
(4th
Cir.
Dec.
8,
2014).
Thus,
this
factor
favors
Defendant Scott.
The
second
Graham
factor,
whether
the
suspect
posed
an
immediate threat to the safety of officers or others, heavily
favors Plaintiff.
According to Plaintiff, while laying face down,
handcuffed,3 with a service weapon and taser pointed at his head,
and not resisting, Defendant Scott attacked Plaintiff.
Entry
59-1,
¶
4.)
Thus,
Plaintiff
Defendants or others at that time.
posed
little
(Docket
danger
to
The third Graham factor,
whether the suspect resisted or attempted to flee, also favors
Plaintiff. Plaintiff has reported that he complied with all orders
and took no actions to resist arrest before or when Defendant Scott
attacked.
(Id., ¶¶ 4, 7.)
In addition (as deemed relevant in
Jones), Plaintiff’s affidavit states that he sustained significant
injuries as a result of the alleged attack, including a broken
ankle, long-lasting back pain, and migraines.
Taking
the
Graham
factors
into
(Id., ¶¶ 5, 17.)
account
and
reviewing
Plaintiff’s factual allegations, Defendant Scott’s actions do not,
3
Although Plaintiff does not state whether Defendant Grady
placed the handcuffs with his hands in front or back (see Docket
Entry 59-1), Defendant Scott’s affidavit suggests that the
Defendants handcuffed him with his hands behind his back (see
Docket Entry 53-1, ¶¶ 11-12).
11
as a matter of law, qualify as reasonable under the circumstances.
Therefore, the Court should deny Defendant Scott’s Motion for
Summary Judgment.
B.
Bystander Liability
The Court also should deny Defendant Cleary’s and the Hoke
County
Defendants’
Motions
for
Summary
Plaintiff’s bystander liability claims.
Judgment
regarding
“[A]n officer may be
liable under § 1983, on a theory of bystander liability if, he: (1)
knows
that
a
fellow
officer
is
violating
an
individual’s
constitutional rights; (2) has a reasonable opportunity to prevent
the harm; and (3) chooses not to act.”
Randall v. Prince George’s
Cnty., Md., 302 F.3d 188, 204 (4th Cir. 2002) (footnote omitted).
In this case, the remaining Defendants focus their attack on the
first element and argue that they did not witness the use of any
excessive force.
(See Docket Entry 53 at 11-12; Docket Entry 55 at
9-10.)
The remaining Defendants rely on their own affidavits to
establish
that
Defendant Scott.
they
did
not
witness
any
excessive
force
by
(See Docket Entry 53-2, ¶ 12; Docket Entry 54-1,
¶¶ 11-14; Docket Entry 54-2, ¶¶ 11-13.)
However, as demonstrated
above, at this stage, the focus remains on the facts in the light
most favorable to Plaintiff. Miller, 913 F.2d at 1087.
The
remaining Defendants do not attempt to evaluate Plaintiff’s claims
from his perspective, rather they contend that the Court should
12
discount and ignore his affidavit.
Docket Entry 61 at 2-3.)
(See Docket Entry 60 at 2-5;
In that regard, the remaining Defendants
label various aspects of Plaintiff’s affidavit as conclusory,
incredible, and contradicted by the record.
(See generally Docket
Entry 60 at 2-5; Docket Entry 61 at 2-3.)
These arguments lack
merit.
Plaintiff does make some conclusory statements (see Docket
Entry 59-1, ¶ 16 (“[Defendant] Scott’s actions were not considered
‘reasonable’ given the situation.”)), but also offers sufficient
factual statements based upon his personal knowledge of what
happened (see id., ¶¶ 2, 3, 4, 5, 6).
Further, to the extent
Defendants rely on their own affidavits contradicting Plaintiff’s
account, such arguments fail for reasons described in the previous
subsection.
Nor have Defendants offered any argument or authority
to
the
support
view
that
Plaintiff’s
incredible, as a matter of law.
account
qualifies
as
(See Docket Entry 60 at 3; Docket
Entry 61 at 3.)
Under
Plaintiff’s
facts,
when
Defendant
Scott
allegedly
attacked Plaintiff, Defendant Grady held his service weapon and
taser to Plaintiff’s head.
(Docket Entry 59-1, ¶ 4.)
Further,
Plaintiff states that, while Defendant Scott beat Plaintiff, Deputy
Nall and Defendants Cleary, Rodger, and Grady simply stood and
watched.
(Id., ¶ 5.)
Plaintiff then remarks that, after a minute
of Defendant Scott’s attack, Defendant Grady and either Deputy Nall
13
or Defendant Cleary finally stopped Defendant Scott.
(Id., ¶ 6.)
These factual allegations, with all reasonable inferences taken in
Plaintiff’s
favor,
support
Plaintiff’s
contention
that
the
remaining Defendants witnessed the alleged attack and waited to
intervene,
thereby
satisfying
the
first,
and
only
contested,
element of bystander liability. Accordingly, the Court should deny
Defendants’ Motions for Summary Judgment to the extent they seek
dismissal of bystander liability claims.
C.
The Hoke County Defendants
The Hoke County Defendants additionally move for summary
judgment on Plaintiff’s claims for violating the Eighth Amendment
and
against
the
Hoke
County
Defendants
in
their
official
capacities. Because the alleged incident occurred in the course of
an arrest, the Fourth Amendment applies and, thus, the Court should
grant the Hoke County Defendants’ instant Motion as to the Eighth
Amendment claim.
Additionally, because Plaintiff has failed to
proffer facts sufficient to demonstrate that any Fourth Amendment
violation arose from an official policy or custom of the Hoke
County Sheriff’s Office, the Court should grant the Hoke County
Defendants’ instant Motion as to Plaintiff’s official capacity
claims.4
4
Additionally and alternatively, Plaintiff failed to address
these specific issues in his response to Defendants’ Motion for
Summary Judgment (see Docket Entry 59), and the Court could find
these claims abandoned and grant Defendants’ Motion as to these
claims, see Feldman v. Law Enf’t Assocs. Corp., 955 F. Supp. 2d
14
1.
Eighth Amendment
The United States Supreme Court has held that the Fourth
Amendment covers all claims for excessive force claims arising from
arrests, investigatory stops, or other seizures of a person.
Graham, 490 U.S. at 388.
In doing so, the Court specifically
rejected using the test for excessive force against prisoners
protected by the Eighth Amendment.
Court
expressly
stated
“the
less
Id. at 398.
protective
Moreover, the
Eighth
Amendment
standard applies ‘only after the State has complied with the
constitutional guarantees traditionally associated with criminal
prosecutions.’” Id. (quoting Ingraham v. Wright, 430 U.S. 651, 671
n.40 (1977)). In this case, Plaintiff’s own affidavit reveals that
the excessive force occurred in the course of an arrest and not
after a conviction.
(See Docket Entry 59-1.)
Accordingly, the
Eighth Amendment does not apply to his claim and the Court should
grant the Hoke County Defendants’ Motion for Summary Judgment as to
Plaintiff’s Eighth Amendment claim.
2.
Official Capacity Claims
An official capacity suit represents a suit against the
governmental entity.
(1985).
Kentucky v. Graham, 473 U.S. 159, 165-66
“Official liability will attach under § 1983 only if
execution of a government’s policy or custom, whether made by its
528, 536 (E.D.N.C. 2013) (citing cases).
fail on their own merit.
15
Nevertheless, the claims
lawmakers or by those whose edicts or acts may fairly be said to
represent
official
policy,
inflicts
the
injury.”
Gantt
v.
Whitaker, 203 F. Supp. 2d 503, 509 (M.D.N.C. 2002) (internal
quotation
marks
omitted).
Furthermore,
a
plaintiff
cannot
predicate official liability based on a respondeat superior theory
of liability.
Id.
Here,
Plaintiff
has proffered no facts to
suggest that the alleged excessive force occurred as a result of a
policy or custom of the Hoke County Sheriff’s Office.
(See Docket
Entries 59, 59-1.) Moreover, Plaintiff’s claim fails to the extent
it relies on respondeat superior.
Gantt, 203 F. Supp. 2d at 509.
Accordingly, the Court should grant the Hoke County Defendants’
Motion for Summary Judgment to the extent it seeks dismissal of the
claims
against
the
Hoke
County
Defendants
in
their
official
capacity.5
5
The Court previously dismissed the official capacity claims
against the Raeford City Defendants. (See Docket Entry 43.)
16
CONCLUSION
Plaintiff has come forth with sufficient factual support to
create a genuine dispute of material fact regarding his claims of
excessive force and bystander liability.
Accordingly the Court
should deny Defendants’ summary judgment motions as to those
claims.
However, Plaintiff did not address or present factual
support
regarding
his
Eighth
Amendment
and
official
capacity
claims.
Thus, the Court should grant summary judgment in the Hoke
County Defendants’ favor on those claims.
IT IS THEREFORE RECOMMENDED that Defendants Scott and Cleary’s
Motion for Summary Judgment (Docket Entry 52) be denied, and that
Defendants Grady and Rodger’s Motion for Summary Judgment (Docket
Entry 54) be granted in part and denied in part, in that the Court
should
enter
judgment
in
their
favor
on
Plaintiff’s
Amendment and official capacity claims.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge
August 19, 2015
17
Eighth
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