BYNUM v. POOLE

Filing 61

MEMORANDUM OPINION AND RECOMMENDATION OF UNITED STATES MAGSITRATE JUDGE JOE L. WEBSTER, signed on 08/17/2017, RECOMMENDING that Plaintiff's motion for summary judgment 30 be DENIED. (Coyne, Michelle)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
OLANDER R. BYNUM,
Plaintiff,

v

KATY POOLE,,
Defendant.

)
)
)
)
)

1:15CV960

)
)
)
)

MEMORANDUM OPINION AND RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff Olander R. Bynum's motion for summary

iudgment. pocket Entry 30.) Defendant l{aty Poole has fìled a response. Q)ocket E.rtry

52.) Fot the reasons

stated herein, the Court

will recommend that Plaintiffs motion for

summarT judgment be denied.

BACKGROUND
Plaintiff, a pro v prisoner and devout Muslim, filed this action against Defendant Poole
alleging a constitutional violation of his religious rights.

(See generalþ

Complaint, Docker E.rty

2.) Plaintiff contends that being a Muslim requires him to attend Jumah

Service,

^

ptzryet

service. (Id. at 3.) He asserts that while at Scotland Correctional Institution ("SCI"),
Jumah
Service, a Muslim holiday, was hosted on Fridays, but on Friday, April 3,201.5,Jumah Service

was canceled. (Id.) Plaintiff alleges that Defendant Poole, a prison administratot, approved
the cancelation of all non-Christian religious services, includingJumah Service. (1/.) Futher,

Plaintiff alleges that he filed three grievances on three separâte occasions and never received
a

response. Qd. at 2-3.) As

a

result, on Novembet 16, 201,5, Plaintiff filed this acrion pursuanr

to 42 U.S.C.

S 1983 alleging

Defendant Poole violated his religious rights while at SCI. Qd.)

The Cletk entered an entry of default against Defendant Poole for failing to fìle an answer or
otherwise tespond to Plaintiffs Complaint. (Docket Entry 11.) The Court later granted

a

motion to set aside the entry of default (Docket Ent"y 22) and Defendant Poole subsequently
filed an answer asserting several defenses against PlaintifPs claim. (Docket E.ttry 23.) Shortly
thereafter, Plaintiff filed a motion for summary judgment alleging Defendant Poole violated
his Eighth Âmendment, Equal Protection, and Due Process Clause rights by cancelingJumah

Service. (Docket Entry 30.) In response, on February 20,2017, Defendant Poole fìled

a

motion to dismiss and strike Plaintiffs motion for summary judgment and in the alternative,
an extension of time to

tespond. @ocket Entty 32) Inher motion, Defendant Poole asserted

that Plaintiffs summary judgment motion failed to comply with Local Rules 7 .2,7.3, and,56.1,

andthatPlaintiff fìled his summas/ judgment motion prior to the close of the discovery period.
(Id. at

1') The Court ruled upon Defendant's motion. (Text Order dated 6/8/2017.) Shortly

thereafter, Defendant Poole fìled another response

in opposition to Plaintrffs motion for

summary judgment. (Docket F,ntty 52.)

DISCUSSION

Plaintiff has moved fot summary judgment in this .mater. Q)ocket Entry
Summary judgment is appropriate when there exists no genuine issue

moving party is entitled to judgment
Ba¡. Mach¡. Corp.,135

^s

of matenal fact and the

a matter of law. Fed. R. Civ. P. 56(c); Zahodnick

u.

Int'l

F.3d 91,1,913 (4th Cir. 1997). The party seeking summaly judgment

bears the initial butden of coming forward and demonstrating the absenc e

of material fact.

30.)

of

agenuine issue

Temkin u. F-rederick Counþt Cumm'rc, 945 tr.2d 71,6, 718 (4th Cir. 1,991) (citing

2

Celotex u. Catrett, 477 U.S.

317,322 (1986). Once the moving parry has met its burden, the

non-moving party must then affìrmatively demonstrate that there is a genuine issue of material
fact which requires tÅal. Mat¡ø¡hita E,lec. Indus. Co. Ltd. u. Zenith Radio Corþ.,475 U.S. 574,587

(1986). There is no issue for tdal unless there is suffìcient evidence favoring the non-moving

p^rty fot a fact fìnder to return a verdict for that parq. Ander¡on u. Liberfl Lobþt,lnc.,477 lJ.S.
242,250 (1986);

S1tluia Deu. Corp. u. Caluert Coanfii,

Md.,48 F.3d 810, 817 (4th Cir. 1995). Thus,

the moving p^tty can t¡ear his burden either by presenting affirmative evidence or by
demonsüating that the non-moving party's evidence is insuffìcient
Celotex, 477 U.S.

to establish his

at 331 @tennan, dissenting). When making the summary

claim.

judgment

determination, the Court must view the evidence, and all justifiable inferences from the
evidence, in the light most favorable to the non-movingpatq. Zaltodnick,l35 F.3d at913;
Haþerin

u.

Abøcu¡Tech. C0rp.,128F.3d1.9't,196 (4th Cir. 1,997). However, the party opposing

summary judgment may not rest on mere allegations or denials, and the court need not

consider "unsuppotted assettions"

or

"self-serving opinions without objective

corroboration." Euan¡ u. Tech¡. 1þplication¡ dy

Seru.

C0.,80 F.3d 954, 962 (4th Cir.

1,996);

Anderson, 477 U.S. at 248-49.

Here, Plaintiff contends that Defendant Poole "admitted to cancelingJumah Service[,]
[thus] violating fPlaintiffs] civil

dghts." Q)ocket Entty 30 at 1) More specifically, Plaintiff

contends:

Supetintendant IQty Poole did admit she cancelled Jumah
Service on [,\pril 3,201,5]. Petitioner was cleady denied freedom
of religion. Freedom of Religion is provided to prison inmates
by pighth Âmendment, Equal Protection and Due Process
Clauses]. Petitioner argues that Defendant(s) did not even think
of canceling Christian service on that same date. Petitioner now
J

argues, no t^tJonal reason exist
treatment of prison inmate class.

fot prison staffs

differential

(Id. at 1-2.) Defendant Poole argues that Plaintiffs motion for summary judgment should be

denied for several reasons:1 (1) Plaintiff did not exhaust his administrative remedies; (2) single

or isolated incidents do not place a substantial burden on an inmate's exercise of his religion;
(3) Plaintiff does not state a claim for supervisory liability; (4) Defendant Poole is entitled to

qualifìed immunity; (5) Defendant Poole is entitled to Eleventh Âmendment prorecrion as to

money damages in het offìcial capacity; and (6) Plaintiff should not be awarded punitive
damages. @ocket Entry 52 at9-1.8.) For the reasons stated herein, PlaintifPs motion should
be denied.

I.

Failure to Exhaust Administative Remedies

Defendant Poole contends that Plaintiff failed to exhaust his administrative remedies

prior to fìling the instant action.

Qd. at 1,4-1,6.)

The Pdson Litigation Reform Act ("PLRÂ"),

42 U.S.C. $ 1997e(a), requires inmates to propedy exhaust administrative remedies before
fìling civil actions challenging the conditions of their confìnement.

See

ll/oodþrd u. Ngo, 548

U.S. 81, 84 Q006); Moore u. Benneîte,517 F.3d71,7,725 (4th Cir. 2003). The exhaustion
requirement applies

"to

aLl

inmate suits about prison life, whether they involve general

citcumstances or particular episodes, and whether they allege excessive force or some other

wtong."

Porter

u.

Natilq534 U.S.

51,6,532 Q002).

It is well-settled by now that Section

t In her response brief, Defendant Poole reasseïts similar arguments previously

1997 e's

raised regarding

Plaintiffs compliance with the local rules when filing a surnmary judgment motion. (Docket Etrtty
52 at 8-1'0') The Coutt pteviously addressed this issue in a Text Order. (See Text Order dated
06/08/201'7.) Having recommended herein other grounds of denying Plaintiffs motion for summary
judgment, the undersþed will not further address this issue.
4

exhaustion requirement is mandatory.
Il/oodþrd, 548 U.S.

u.

XYZ

u. Bock,549 U.S. 199, 21,1 (2007); ¡ee al¡o

at 90-91 (stating that the PLRA requires "proper exhaustjon," which

"demands compliance
Anderson

See Jones

with aî

a,gency's deadlines and

other critical procedural rules");

CorrectionalHealth Servt.,Inc.,407 tr.3d674,676-77 (4th Cir.2005) (citing 7)orter,

534 U.S. at 524).

The North Carolina Depattment of Public Safety ("NCDPS") has a

three-step

-A.dminisffative Remedy Procedure ("ARP") which governs the fìling of grievances in each

its correctional facilities.2

(Jøe

ARP Manuel, Docket Entry 23-1.;

see

of

al¡o Moore u. Bennette, 51.7

tr.3d 7'17,721, (4th Cit. 2003)). The ARP fìrst encourages inmates to artempr informal
communication with responsible officials at the facihty where the problem arose. ARP

S

.0301(a). If informal resolution is unsuccessful, the ARP provides that "any aggrieved inmate
may submit a written grievance . . .

." 1/. S .0310("X1). If the inmare is not satisfied

with the

decision reached at the above-described step one of the grievance process, he or she may
request relief from the faclltty head. 1/. S .0310þX1).

If

the inmate is not satisfìed with the

decision reached at the second step then he or she may appeako the secretary of public safety

through the inmate gtievance examiner

("IGE"). 1/. S .0310(cXt). The

decision by the IGE

ot a modification by the secretaly of public safety constitutes the final step of

the

Âdministrative Remedy Procedwe. Id. $ .0310(c)(6).

A

review

of Plaintiffs complaint and the exhibits

atrached

to Defendanr Poole's

opposition brief demonstrates that Plaintiff did not exhausted his administrative remedies.

2

The court takes judicial notice of this established procedure of the NCDPS as a mater of public
record. Fed. R. Evid.201(1).
5

The NCDPS gdevance procedure is compdsed of three distinct steps. Moore, 517 tr.3d

71,7 at

721. Defendant Poole does not dispute Plaintiffs alegations that he engaged in step one of
the grievance process. For instance, on May 1.8,2015, prison officials accepted a grievance by

Plaintiff (Grievance No. 4860-15-0653) alleging that the intentional cancelation of Jumah
Service was a direct violation

of his freedom of religion. Q)ocket F,ntry 2-1.) Thereafter,

prison officials responded informing Plaintiff that the service was canceled in eror, and that
management wâs notified "to ensure that all teligious services are held according to policy."

pocket Entry 23-2.) The response

also included Plaintiffs signature and a check mark that

indicating that Plaintiff agreed with the grievance response. Qd) The record, however, does

not further indicate that upon completing Step 1 of the gdevance process and receiving
response from prison officials, Plaintiff further appealed to Step

a

2. In fact, Defendant Poole

and sevetal prison offìcials, including the Grievance Officer at SCI, contend that Plaintiff did

not appeal to Step

2.

(Shaquanna Wall

Aff.

I

18, Docket Entry 52-4;Katy Poole Aff. n 22,

Docket Er,t y 52-6; Charlie Locklear Aff. fl 20, Docket Entry 52-6.) It was not until after this
lawsuit was filed did Plaintiff submit another grievance on December 28,2015. flXzall Aff.
20; tee

1l

al¡oDocket Entty 52-4 at12.)3 Even if PlaintifFwanted to appeal ar rhis poinrin the

proceeding, "he may not exhaust (or attempt to exhaust) his administrative remedies during
the pendency of a lawsuit." Thoma¡ u. Slater,No. CA 9:10-0028-DCN-8M,201.0WL 4822407,
at x3 (D.S.C. Nov. 3,201,0) (unpublished), report and recommendation adoþted, No. CA 9:10-0028

DCN, 2010 ì7L

'

4823071, (D.S.C.

Plaintiff did submit

a grievance in

same issue had not completed Step

Nov. 22,

201,0) (citation omitted); ¡ee al¡o Seamon¡ u. Guise,

June 201.5 thatwas rejected because his current grievance on the
2. (Jae Docket E.rtty 52_4 at 10.)
6

No. 3:16-CV-649-FDW, 2017 srl, 190101., at x2 flX/.D.N.C.Jun. 17,201,7) (unpublished)
("The law is settled that

a

plaintiff must exhaust administrative remedies before filing

a claim,

and a prisoner is not entitled to exhaust administrative remedies during the pendency

of

an

action."). Having failed to exhaust his administrative remedies by completing all three steps
requited by the ARP, Plaintiffls motion for summary judgment should be denied.

II
Notwithstanding Plaintiffls failure to exhaust his administrative remedies, Defendant
Poole also asserts that Plaintiffs motion for summary judgment should be denied because no
substantial burden has been placed on his ability to practice his religion. (Docket F,ntry 52 at
1,1,-12.)

Plaintiff alleges that on Friday, .A,pdl 3,201.5,Jumah Service was intentionally canceled

wheteas Christian services were never canceled. @ocket Etrtty 30 at 1.-2; Docket F,ntry 2 at

3.) Further,

he argues that cancelation of Jumah Service violated his constitutional nght to

free exercise of religion. (Docket Entty 30 at
constitutional ptotection even

religi6¡.

if convicted

2)

Inmates have First Amendment

and imprisoned, including the free exercise

O'L.one a. E¡tate of Shabaq7r 482 U.S.

of

342,348 (1987). Âpplying a more stringent

ptotection, the Religious Land Use and Institutionaltzed Person Act ("RLUIPA") provides
that "[n]o government shall impose a substantial burden on the religious exercise of a person
residing in or confined to an institution . . . even

if

the burden results from a rule of general

applicability, unless the government demonstrates that imposition

of the burden on

that

person" sefves to further a compelling government interest and "is the least restrictive means

of funhering that compelling governmental interest." 42 U.S.C. $ 2000cc-1. In order to
determine whether there has been a violation under RLUIPA, Plaintiff "bears the burden

7

of

establishingaprima facie case, showing (1) that he seeks to engage in an exercise of religion,
and Q) that the challenged conduct substantially burdens that exercise." Krieger u. Brown,496
Fed. ,{,pp'x 322,324 (4th Cir. 201,2).

Following the Supreme Court's guidance, the Fourth Circuit has held that"asubstantial
burden on religious exercise occurs when a state or local government, through actor omission,

putfs] substantial pressure orì an adherent to modi$r his behavior and to violate his beliefs."
Lnuelace u.

I*e,472F.3d 174,1,87 (4th Cir. 2006) (internal quotations and citations omitted).

In contÍast, "[n]o

substantial burden occurs

if

the government action merely makes the

religious exercise more expensive or diffìcult, but fails to pressure the adherent to violate his

or her teligious beliefs or abandon one of the precepts of his religi6¡." Dellìnger

u.

Clarke,172

F. Supp. 3d 898, 902-03 flX/.D. Ya. 201,6) (intemal quotations and citations omitted). Upon

Plaintiff establishing a prlma facie

case, the burden shifts

to the government to show "that the

limitation on the plaintiffs religious exercise is the least restrictive means of furthering

a

compelling government interest." Krieger,496Fed. App'r at324. "In assessing fwhether there

is a substantial] butden, courts must not judge the significance of the particular belief or
practice in question." I-.oue/ace,472F.3d at187 n.2.

Defendant Poole correctly contends that the incident Plaintiff alleges does not put

a

substantial butden on Plaintiffs exercise of religion. Plaintiff makes a blank assertion that his
religious dghts wete violated by Defendant Poole whenJumah Service was canceled at SCI on
,{.pdl 3,2015. (Docket E.tt"y 30 at1,-2.) Although the Court will not inquire as to the necessity

of attendingJumah Service

as

it pertains to being

a devout Muslim, the Court

will not view

a

"single or isolatefd] incident" as placing a substantial burden upon PlaintifPs exercise of

8

religion. Daui¡ u. Doe, 1:14CY373, 2014 lrl- 1835853, at x2 (M.D.N.C. May B, 2014)
(unpublished) (citing Brown u. Graltam, 470 F.

App'"

alleged that this has occured on several occasions.
that Jumah Service was held every Friday

3.)

,A't most, the

in

11,,15 Qd Cir. 201,2)). Plaintiff does not

In fact, in his Complaint, Plaintiff

201,5, except

srates

Âpdl 3, 201.5. (Docket Entry 2 at

one-time cancelation ofJumah Service is an inconvenience. Dellinger,1,72tr.

S.rpp. 3d at902-03.

In addition, Plaintiff

does not demonstrate that "he was pressured to modify his

behavior and to violate his beliefs when" Jumah Service was canceled. Dauh, 201,4 WL
L835853,

atx2. First,

the record indicates that Defendant Poole did not become aware of the

cancelation ofJumah Service until aftet the scheduled service. (?oole Aff.

Department

of

I

14.) Second, the

Supervision and the Chaplain at SCI would have been responsible for

organizing and facibtating the inmates' religious services. (Id. n

not canceled intentionally by Defendant Poole or

^ny

ß)

Third, Jumah Service was

staff member, because on ,\pril 3,2015,

the chaplain and program staff were off for Good Friday, a State holiday. Qd.llfl 1,4, 20.)
Moteover, the record indicates that Defendant Poole not only had nothing to do with the
cancelation of Jumah Service, but also had no prior knowledge of such conduct. (Id. n

ß)

Therefore, Plaintiff has not proven a pÅma facie case that a substantial burden was placed on
his ability to exercise þis ¡sligion. Thus, Plaintiffs motion for summary judgment should be
denied.

IIl.

Superviso{vLiability

Alternatively, and to the extent alleged, Defendant Poole argues that Plaintiff fails to
state a claim

fot supervisory liability against her. (Docket Entry 52 at12-13.) Defendant Poole

9

may not be held liable based upon a theoty

of retpondeat saþerior,

because retpondeat superior

generally is inapplicable to $ 1983 suits. Iqbal,55ó U.S. at 676; Monell u. Dep't of Sotiøl
436 U.S. 658, 694 (1978). However, a superviso

t

mÀy be liable

for the actions of

a

Seras.,

subordinate

if:
(1) the supervisor had acttal or consrructive knowledge that his
subordinate was engaged in conduct that posed "a pervasive and
unreasonable risk" of constitutional injury to citizens like the

plaintiff;

Q) the supervisor's response to that knowledge was so
inadequate as to show "deliberate indifference to or tacit
authorizalon of the alleged offensive practices;" and
(3) there was an "affrmaive

causal link" between the
supervisor's inaction and the particular constitutional inlury
suffered by the plaintiff.
Shaw u. Stroød,13 F.3d

791,799 (4th Cir.

1,994).

PtaintifÎs complaint lacks any allegations sufficient to assert supervisory liability against
Defendant Poole. Even with the most liberal reading, Plaintiff, at most, asserrs Defendant
Poole had knowledge of the incident occurring on Apdl 3,201,5. (Docket E.rtty 2 at 4.)

tue,

knowledge

If

of this single incident fails to show "continued inaction in the face of

documented widespread abuses," which is necessary to establish deliberate indifferenc e. Shaw,
13 F.3d at 799 (internal quotations omitted). Thus, PlaintifPs claim

of supervisory tiability

against Defendant Poole fails.

IV.

Qualified Immunity

Summary judgment in favor of Plaintiff is also improper because Defendant Poole is

entitled to qualifìed immunity. "Determining whether qualified immunity applies involves
two-prong inquiry: whether the facts make out a violation of
10

a

a

constitutional right and whether

the tight at issue was cleady established at the time of defendant's alleged misconduc
u. Bunh,

No. 1:13CV488, 2015 wL

reþort and recommendation ødopted,

1,474909, at

a.

O{.D.N.C. Mar

No. 1:13CV488, 2015 WL

dÍtd, 623 Fed. App'x 82 (4th Ch. 201,5); Plarnhof

Ahroft

*5

31,, 2015)

Parþ.er

(unpublished),

21,691,48 (N4.D.N.C.

u. Nc/<ard, 134

t."

May 8,

201,5)

S. Ct. 201,2, 2023 Q014) (citing

a/-Kidd,131 S. Ct.2074,2080 Q01,1)). The doctrine of qualified immunity "balances

two important interes¡5-¡þs need to hold public officials accountable when they

exercise

power irresponsibly and the need to shield officials from harassment, distraction, and liability

when they perform their duties reasonably."
1,323173, at

223, 231

Reeaes

u. Ransom,

*7 (À4.D.N.C. Mar. 31,201,4) (unpublished)

No. 1:10CV56,

2014 WL

(qaoting Pear¡on u. Callahan, 555 U.S.

(2009). "The burden of proof and persuasion

rests

with the offìcial

asserting

qualified immtnity." Id.

Hete, Plaintiff has not stated

a claim for a constitutional violation.

Defendant Poole is entitled to qualified immunity.

See

Therefore,

Parker,2015 V/L 1,474909,at x8 (finding

that "the absence of evidence supporting a finding that a constitutional violation occurred
satisfìes the first prong of the qualified immunity analysis"); Abnelt u. C0e,493tr.3d41,2,41.5

(4th Cir. 2007) (fìnding that

"[i]f

fan official] did not violate any right, he is hardly in need

of

any immunity and the analysis ends right then and there").

V.

Eleventh Amendment Immunity

Defendant Poole also asserts that Plaintiff is not entitled to recover monetary damages
against Defendant Poole

in her offìcial capacity. (Docket Entry 52 at 1,6.) The Eleventh

,{mendment prohibits actions in federal court by individuals against a stâte unless the state
has consented

to suit or

unless Congtess has lawfully abrogated the states' Eleventh

1,1

,\mendment immunity.

Ballenger u. Owen¡ 352

tr.3d 842, 844-45 (4th Cir. 2003). The doctrine

of sovereign immunity under the Eleventh rtmendment applies not only to actions in which
the State is a named defendant, but also to actions against its departments, institutions, and
agencies. Additionally,

in North

Carohna, "fa]ctions against offìcers

of the State in their

official capacities are actions against the State for the purposes of applying the doctrine of
fsovereign] immunity." Creen u. Kearne1,203 N.C. App. 260, 268, 690 S.E.2d 755,762 Q010)

(citation omitted). Indeed, "[w]here fSection 1983's] provisions allow for suit against

a

'person,' and in suits fot money damages, neither the state flot a state agency is deemed

a

'person,' [thus] this claim cannot be maintained by plaintiff against [the State]."
Carolina Dep't of Cor.,

Sauage u.

N.

No. 5:06-CV-171-FL,2007 wL2904182, atx5 (E.D.N.C. Sept. 29,2007)

(unpublished). Additionally, compensatoly damages are unavatlable in offìcial capacity suits
under S 1983. Bigt r.Meadowr,66 F.3d 56,61(4th Cir. 1,995). Here, evenif Plaintiff filed

a

suit against Defendant Poole in her offìcial capacity it would be against the NCDPS and the
State

of North Carolina. Green,203 N.C. ,{pp. 260

^t

690. Neither has consented nor waived

immunity; therefore, any monetary claims against Defendant Poole in her official capacity
should be denied. Kelþ u. Maryland, 267 F.

("It is now well settled that
Dtp'r

of Pøb.

Âpp'r 209,21,0 (4th Cir. 2003) (citation omitted)

astâte cannot be sued under $ 1983.');

see

al¡o Karricþ. u.

I,l. Camlina

Soft\, No. 1:14-CV-00082-FDìø, 2015 WL 4756963, at x3 (IX/.D.N.C. Atg.

201,5) (unpublished) (dismissing

the North Carolina Department of Public Safety

of the State of North Carolina [that] enjoys immunity from a suit for monetary

^s

12

"an arm

damages

Section 1983 action based on the Eleventh Amendment of the U.S. Constitution").

1.2,

in

a

VL

Punitive Damages

Lastly, Defendant Poole asserts that Plaintiffs chim for summary judgmenr as to
punitive damages should be denied. (Docket Entty 52 at 1.6-1,7.) The Couft first notes that

Plaintiff "is not entitled to monetary damages under
official capacityþl ;'

Moruelthan u. Ke//er,563

F.

S 1983 against

Defendant fPoole] in þer]

App'" 256,259 (4th Cir. 201,4). Moreover, to

the extent damages arc available in an individual capacrty, the conduct must be such that
"involves 'reckless or callous indiffetence to the federally protected rþhts of others,' as well
as

for conduct motivated by evil intent."

Cooper u.

D1ke, 814 tr.2d, g41,,948 (4th Cir. 1987)

(citing Smith u. Wade,461 U.S. 30,56 (1983). Furthermore, "[t]he callous indifference required

for punitive damages is essentially the same as the deliberate indifference required for

a

fìnding

of liability on the S 1983 claim[.]" Id. Having found no conduct of evil intenr or reckless
indifference, Plaintiff is not entitled to punitive damages.

CONCLUSION
Based upon the foregoing reasons,

IT IS HEREBY RECOMMENDED that

Plaintifls motion for summary judgment (Docket Etrtry 30) be DENIED.

L

TÇ'ehcrer

Stutet ltlqgr*rrt* Jurigr

Â,ugust

1,7

,201,7

Durham, North Carolina

1,3