Bullocks v. C/O Hale et al

Filing 44

ORDER ADOPTING 35 REPORT AND RECOMMENDATIONS, subject to the minor modification set forth in the order. Accordingly, the Court GRANTS Bullocks' Motion for Leave to Amend Plaintiff's Objection to Report and Recommendation (Doc. 41), b ut ultimately DISMISSES Bullocks' Amended Complaint (Doc. 8) WITH PREJUDICE. Signed by Judge Douglas R. Cole on 4/6/20. (sct)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
GERALD BULLOCKS,
Plaintiff,
v.

Case No. 1:18-cv-288
JUDGE DOUGLAS R. COLE
Magistrate Judge Bowman

C/O HALE, et al.,
Defendants.
OPINION AND ORDER
This cause comes before the Court on the Magistrate Judge’s May 23, 2019
Report and Recommendation (“R&R”) (Doc. 35), recommending this Court grant the
Defendants’ Motion for Summary Judgment (Doc. 28) and deny Bullocks’ Motion for
Summary Judgment (Doc. 25). As required by 28 U.S.C. § 636(b) and Fed. R. Civ. P.
72(b), this Court has made a de novo review of the record in this case. Based on that
review, the Court OVERRULES Bullocks’ Objections (Docs. 36, 41) and ADOPTS
the Magistrate Judge’s R&R (Doc. 35), albeit with minor modifications. Accordingly,
for the reasons discussed more fully below, the Court DISMISSES Bullocks’
Amended Complaint (Doc. 8) WITH PREJUDICE and DIRECTS the Clerk to
terminate the case.
FACTUAL BACKGROUND
On August 28, 2016, while being housed at the Southern Ohio Correctional
Facility, Bullocks flooded his cell, threatened correctional officers, and refused to
comply with direct orders to cuff up so he could be removed from his cell and

transported to a segregation unit. (R&R at #312). Because he refused to comply,
pursuant to institutional policies, the correctional officers organized a use-of-force
team, along with a videographer, to extract and transport Bullocks by force to a
holding cell. (Id.; see also Video Recording 21, Doc. 30-1, 00:30–1:05). This team was
made up of several individuals, including named Defendants Corrections Officer
(“C/O”) Stephen Hale and C/O Gary Hunley, along with Lieutenant Broughton, C/O
Kimberly Hunley who operated the video camera, and C/O Lyle Rayburn who
participated as a “shield man.” (R&R at #312–13; Video Recording 21 at 00:30–1:05;
Use of Force Investigative Report (“Investigative Report”), Doc. 29-2, #216). Two
nurses from Medical and one nurse from Mental Health were also present.
(Investigative Report at #217). Lieutenant Eshem participated as a crisis negotiator.
(Id. at #216).
The crisis negotiator attempted to persuade Bullocks to cooperate peacefully,
but Bullocks refused. Instead he stated, “get the team, I’m not coming out.” (Video
Recording 20, Doc. 30-1, 1:30–1:51). In response, Lt. Broughton deployed OC
(Oleoresin Capsicum) pepper spray in Bullocks’ cell and waited approximately 15
minutes for the spray to take effect before entering the cell block. (See id. at 2:00).
Bullocks says, at this point, he was ready to surrender peacefully and allowed officers
to cuff him. (R&R at #313–14). The Magistrate Judge found the video consistent with
this portion of Bullocks’ account. (Id. at #314). The officers cuffed Bullocks and, with
Defendants Hale and Hunley holding his arms, the group then proceeded to escort

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Bullocks from his current cell to a holding cell. (Id.). The walk took approximately
two-and-a-half minutes total. (See Video Recording 21 at 2:40–5:20).
The instant lawsuit arises from this brief escort. Bullocks alleges that, while
en route to the holding cell, Hale and Hunley twisted his wrist and hyperextended
his fingers causing permanent injury to his right hand. (R&R at #314). Bullocks
claims he screamed and begged Hale and Hunley to stop, but they continued to bend
his fingers back causing irreparable damage. (Id. at #314–15). The video does show
that Bullocks began yelling intermittently soon after the escort began. The
Magistrate Judge found it difficult to make out intelligible words during the first
minute of the escort, except one cry, presumably from Bullocks, that sounded like
“can’t breathe.” (Id. at #315). About one minute after Bullocks left the cell, in reaction
to Bullocks’ cries, Broughton instructed the group: “Guys, hold up, have the nurse
come and check him.” (Video Recording 21 at 3:43–4:00).
When Nurse Mault arrived, Bullocks told him that Hale and Hunley had
broken his finger. He complained, “they broke my finger man, they broke it” and “they
broke my finger man, it’s broke.” The nurse initially responded, “we’ll check that
later, other than that, you all right?” (Id. at 4:20–4:33). Bullocks continued to insist
his finger was the problem and resumed yelling. The nurse then briefly examined
Bullocks’ hand. He told Bullocks to “quit hollering” and asked, “can you wiggle ‘em?”
Bullocks said, “I can’t move it” and “I can’t feel my hand.” After again examining
Bullocks’ hand, the nurse dismissed Bullocks’ concerns, allowing the escort to
proceed. He expressly noted that Bullocks’ circulation was normal and that he

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appeared to be “fine.” (Id. at 4:34–4:50). Bullocks protested, “don’t let them do this to
me man,” as the procession continued the short remaining distance to the cell. (R&R
at #316).
Once inside the cell, Broughton instructed the team to place Bullocks on the
bed and remove his restraints. Bullocks continued to yell periodically. (Id.). While
Bullocks laid on the bed waiting for them to remove his restraints, unidentified
officers can be heard clearly saying “do not resist!” and repeatedly instructing
Bullocks to “quit resisting.” (Id.). In addition to the unidentified voices, Broughton
can be heard and seen on the video sternly ordering Bullocks at least twice to “let
them remove [the] restraints. Do not move.” (Video Recording 21 at 6:45, 7:11). When
Hunley tried to remove the leg irons, the key broke inside the restraint, causing
Bullocks to remain in the leg irons longer than usual so the officers could retrieve
different equipment to remove the restraints. While the group waited, an unidentified
voice cautioned Bullocks to “just lay there,” while Broughton ordered, “Bullock, lay
there until I get the bolt cutters to cut your leg iron off. Do not resist.” (Id.at 10:26–
10:33). The officers soon received the bolt cutters, removed the leg irons and
handcuffs, and left the cell.
Immediately after the extraction team left, Nurse Mault returned to examine
Bullocks’ hand a second time. Bullocks again reported finger and wrist pain.
(Investigative Report at #233). But Mault noted Bullocks’ wrist and fingers exhibited
no deformities and Bullocks had full range of motion. (Id.). Mault told Bullocks he
could request follow-up medical visits if necessary. (Id.).

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Subsequently, and frequently, Bullocks sought additional medical attention.
He submitted five health service request forms during his confinement in disciplinary
segregation. (R&R at #318). The day after the incident, on August 29, 2016, Bullocks
submitted his first request, seeking medical attention to “set [his] finger and wrist in
place” following the previous day’s escort. (Bullocks’ Medical Records (“Medical
Records”), Doc. 29-4, #266). On that same day, Bullocks submitted a second request,
claiming that both his wrists were swollen, and that he thought he had a hand and
ankle fracture. (Id. at #267). On August 30, 2016, a nurse ordered an x-ray of
Bullocks’ right hand. (Id. at #250).
On August 31, 2016, medical staff physically examined Bullocks based on his
complaints. (Id.). Bullocks expressed concern about “ongoing pain in both wrists and
bruising, swelling in the right palm/fingers/hand.” (Id.). The nurse noted
“[t]enderness with palpation of wrists and palm of right hand. Blue bruising to right
palm with slight edema at [the] knuckles. No bruising or edema of wrists noted. …
No restrictions on activity.” (Id.). Later, the x-ray report noted mild osteoarthritis, a
common degenerative disease, but showed no acute injury or fracture. (Id. at #249).
On September 6, 2016, Bullocks submitted another medical request seeking
band-aids and antibiotic cream because of “deep cuts” on his wrists. (Id. at #268). The
medical staff examined him that same day. In addition to the alleged “deep cuts,”
Bullocks told the nurse he also “injured [his] right hand 10 days ago”—likely referring
to the August 28th incident. (Id. at #256). The examination revealed no lacerations

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or other injuries to the skin. (See id.). He told the nurse during this visit that his
“hand is getting better.” (Id.).
Bullocks also alleges he suffered depression following the August 28th incident
and submitted to the Court one mental health treatment record in support of this
claim. (See R&R at #322; Mental Health Records, Doc. 25-1, #102–03). That record,
dated December 5, 2016, shows that Bullocks saw a psychiatrist for a follow-up visit.
(Mental Health Records at #102). Bullocks reported to the psychiatrist an
“improvement in functioning with decreased irritability and improve[d] focus.” (Id.).
While the report does not suggest Bullocks sought medication because of the incident,
it does indicate that Bullocks requested an increased dose of Zoloft at night because
he “prefers to be energized at night so he can work out [and] sleep during the day.”
(Id.).
On May 1, 2018, Bullocks filed a complaint under 42 U.S.C. § 1983 alleging
Defendants’ use of force during the transport constituted cruel and unusual
punishment in violation of his Eighth Amendment rights. (See Compl., Doc. 3).
Although his complaint is not the model of clarity, it appears he is seeking recovery
for alleged physical injury, mental injury, and emotional distress, and also seeks
injunctive relief, asserting that he “will continue to be irreparably injured by the
conduct of the defendants” absent such relief. (See First Am. Compl., Doc. 8, #47).
Both parties filed cross motions for summary judgment. On May 23, 2019, the
Magistrate Judge issued her Report and Recommendations, which recommended that
this Court deny Bullocks’ motion, grant Defendants’ motion, and dismiss the case.

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(Doc. 35). The Magistrate Judge offered three basic reasons for her decision. First,
she held that § 1997e(e) of the Prison Litigation Reform Act required Bullocks to show
a more-than-de-minimis physical injury as a prerequisite to a § 1983 claim asserting
an Eighth Amendment violation, and found that given the undisputed medical
evidence, Bullocks could not do so. Second, she found that Bullocks could not show
that the conduct at issue violated the Eighth Amendment in any event, as it failed to
meet either the objective or subjective component of the Eighth Amendment test.
Finally, she found that the Defendants were entitled to qualified immunity. Bullocks
filed timely objections (Doc. 36) and subsequently moved to supplement his
objections. (Doc. 41). The Magistrate Judge’s recommendation, Bullocks’ original
objections, and his motion to supplement those objections, are now before this Court.
DISCUSSION
Bullocks lodges several objections to the Magistrate Judge’s recommendations,
largely rehashing arguments he made during summary judgment. Generally
speaking, Bullocks accuses the Magistrate Judge of being biased and wrongfully
weighing and construing the facts in the Defendants’ favor. (See Plaintiff’s Objections
to Magistrate J. R. & R. (“Pl.’s Objs.”), Doc. 36, #344). He objects to the Magistrate
Judge characterizing his injuries as “de minimis,” to her conclusion that Defendants
lacked the subjective intent to harm him, and to her finding that Defendants would
be entitled to qualified immunity as to Bullocks’ Eighth Amendment claim—even if
he could clear the hurdles necessary to show that a violation had occurred. The Court
considers, and ultimately rejects, each objection for the reasons explained below.
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A.

Bullocks Cannot Pursue A Claim For Mental Injuries Or Emotional
Distress Under § 1983, Based On An Alleged Eighth Amendment
Violation, As The Undisputed Facts Show, He Suffered At Worst A De
Minimis Injury.
As a general matter, § 1983 provides a vehicle to recover for injuries suffered

when someone acting under color of state law deprives a person of any “rights,
privileges, or immunities secured by the Constitution and laws” of the United States.
42 U.S.C. §1983. That is, this section creates a private right of action for damages
suffered as a result of a constitutional violation. But, when, as here, the allegedly
injured person is a prison inmate, additional considerations come into play. That is
because, in the Prison Litigation Reform Act (“PLRA”), Congress imposed certain
limitations on prisoner actions under § 1983. Of particular import here, § 1997e(e)
provides:
No Federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or emotional injury
suffered while in custody without a prior showing of physical injury or
the commission of a sexual act.
42 U.S.C. § 1997e(e). The Magistrate Judge found that the undisputed facts show
that Bullocks’ claimed physical injury was at worst de minimis, and that § 1997e(e)
thus precludes Bullocks from pursuing a § 1983 claim. The Court agrees with the
former finding in its entirety, but agrees with the latter holding only in part.
The Sixth Circuit has held that “de minimis injuries” do not constitute a
“physical injury” as that term is used in § 1997e(e). Flanory v. Bonn, 604 F.3d 249,
254 (6th Cir. 2010) (noting that a “physical injury” “must be more than de minimis
for an Eighth Amendment claim to go forward” under § 1983). The appeals court has
also found that injuries such as swelling, pain, and cramps are merely de minimis
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injuries for purposes of § 1997e(e). See Jarriett v. Wilson, 162 F. App’x 394, 400–01
(6th Cir. 2005).
Applying that framework here, the Magistrate Judge correctly found that the
undisputed facts show that Bullocks’ claimed injuries are, at worst, de minimis
injuries. To be sure, he claimed during the escort that the guards broke his finger or
fingers, which would have constituted more than a de minimis injury. But subsequent
medical testing, including x-rays, failed to substantiate his claim of any broken bones.
And the findings on physical examination, both during the escort and later, were
largely non-remarkable. One examination, for example, conducted shortly after the
escort, noted some “bruising to [the] right palm with slight edema at knuckles.” (See,
e.g., Medical Records at #250 (“Blue bruising to right palm with slight edema at
knuckles. No bruising or edema of wrists noted.”)). Edema, of course, is another term
for “swelling,” which, as noted above, the Sixth Circuit has expressly characterized
as de minimis, a characterization that is presumably all the more appropriate when
the edema is “slight.” In sum, minor bruising and slight swelling seem like almost
paradigmatic examples of a de minimis injury.
Bullocks objects to that characterization, arguing that the Magistrate Judge
wrongly stressed Bullocks’ statements in which he claimed he had a bone fracture
because these statements “were made in the heat of excru[c]iating physical pain[.]”
(Pl.’s Objs. at #343–44). He also disagrees with the Magistrate Judge’s reliance on
the x-ray results disproving his injuries because the x-rays would only show skeletal
injuries. (Id. at #344). These objections are meritless, however, because the

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Magistrate Judge considered all the evidence and correctly concluded that the health
records, as a whole, provided no support for Bullocks’ claim. The problem for Bullocks
is not that he was mistaken when he shouted that he had a bone fracture. Rather,
the problem is that his health records do not show he experienced anything other
than minor swelling and bruising. The Magistrate Judge correctly noted that the
corrections officers may not have escorted Bullocks with “kid gloves,” (R&R at #324),
but pain and swelling is not enough to satisfy § 1997e(e)’s physical injury
requirement.
There is a separate question, though, as to what impact that finding has on the
claims that Bullocks seeks to advance here. Under § 1997e(e), a physical injury is a
prerequisite only as to claims “for mental or emotional injury.” Bullocks asserts such
claims here, but he also appears to seek recovery for the alleged physical injury. By
its plain language, though, § 1997e(e) does not make a non-de-minimis injury a
prerequisite for recovery on the physical injury claim itself. Accordingly, while the
statute bars Bullocks’ claims for mental anguish or emotional injury, it does not
prevent him from seeking compensatory damages for the physical injury.
Thus, to the extent that the Magistrate Judge found that § 1997e(e) bars
Bullocks’ claims for mental anguish or emotional injury, this Court affirms that
finding. Conversely, though, to the extent that the Magistrate Judge found that the
statute bars recovery on his physical injury claims, the Court reverses that finding.
As further explained below, however, that does not change the ultimate disposition

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of this case, as Bullocks cannot establish an Eighth Amendment violation as to the
claimed physical injuries here, meaning that he still has no basis for recovery.
B.

Bullocks’ Eighth Amendment Claim Predicated On His Alleged
Physical Injury Fails As A Matter Of Law, As He Cannot Meet Either
The Subjective Or Objective Component Of The Eighth Amendment
Test.
The Eighth Amendment prohibits the government from imposing “cruel and

unusual punishment” upon prisoners. U.S. Const. amend. VIII. But not every shove
by a prison guard gives rise to a constitutional violation. See Cordell v. McKinney,
759 F.3d 573, 580 (6th Cir. 2014). Sometimes “[t]he maintenance of prison security
and discipline may require that inmates be subjected to physical contact actionable
as assault under common law.” Combs v. Wilkinson, 315 F.3d 548, 556 (6th Cir. 2002).
Prison officials nonetheless violate the Eighth Amendment when their “offending
conduct reflects an unnecessary and wanton infliction of pain.” Williams v. Curtin,
631 F.3d 380, 383 (6th Cir. 2011).
The test for establishing an Eighth Amendment violation has both a subjective
and an objective component. Under the subjective component, a plaintiff must show
the prison officials acted with a culpable state of mind. See Cordell, 759 F.3d at 581.
That is, the Court must determine “whether force was applied in a good-faith effort
to maintain or restore discipline, or maliciously and sadistically to cause harm.” Id.
at 580. The objective component, on the other hand, focuses on the force that the
corrections officers used. The Supreme Court has made clear that this component
does not turn on the severity of the injury caused, but rather looks to the
appropriateness of the force employed. See Wilkins v. Gaddy, 559 U.S. 34, 39 (2010)
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(citing Hudson v. McMillian, 503 U.S. 1, 7 (1992). To be sure, in a given case, the
former may provide helpful information regarding the latter, but the key inquiry is
whether the force was objectively unreasonable in the circumstances. More
specifically, a plaintiff must establish that the defendants used a level of force that
inflicted pain “sufficiently serious” to offend “contemporary standards of decency.”
Cordell, 759 F.3d at 585. Here, the Magistrate Judge correctly found that Bullocks
could not establish either prong of this inquiry.
The Magistrate Judge started with an extensive and well-reasoned analysis of
the subjective component. The Court will not repeat the entirety of that analysis, but
suffice it to say that the undisputed evidence shows that Bullocks’ arguments fall
short. As the Magistrate Judge recounts in greater detail, when faced with a difficult
situation, the corrections officers assembled a full transport team, implemented the
prison’s established transfer protocol, and recorded the entire process. Both the video
and audio portions of the tape support the idea that this was a safely conducted
transfer of an inmate who had refused to follow appropriate instructions from the
officers. The Court agrees with the Magistrate Judge’s conclusion that “the
circumstances presented reflect that force was applied ‘in a good faith effort to
maintain and restore discipline,’ namely a reasonable amount of force necessary to
extract Plaintiff from his cell, transport him to the holding cell, and keep him secured
until his restraints were removed.” (R&R at #325). The Magistrate Judge further
noted that, when Bullocks evidenced discomfort during the transfer, the video reflects
that the officers stopped to provide medical personnel an opportunity to examine his

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fingers and hand. This again suggests that they were not intending to maliciously
harm him, but rather to secure his compliance with their efforts to transport him to
the holding cell. Finally, the record also shows that Bullocks had extensive access to
medical care after the transport to explore his alleged injuries. This undercuts his
claim that the officers were acting with sadistic or malicious intent.
In the face of the substantial documentary evidence, Bullocks relies largely on
speculation. He claims, for example, that the officers said “stop resisting” (which is
heard on the audio portion of the tape) as an intentional ploy to create a legal defense
for a potential future lawsuit, thus presumably indicating a carefully thought out
plan to harm him while shielding themselves from liability. (Pl.’s Obj. at #342). And
he claims a jury should decide whether the officers intentionally obstructed the video
footage to block the camera showing the allegedly true reason why Bullocks was
screaming. (Id.). Separately, Bullocks seeks to bolster his case for subjective intent
by pointing out that the prison officials have supposedly been cited in countless
excessive-force lawsuits. (Id. at #343).
But these bald allegations, without any actual evidence, do not show the
officers subjectively intended to cause Bullocks harm. As the Magistrate Judge
pointed out, multiple different people told Bullocks to stop resisting, not just the
defendants named in this lawsuit. (R&R at #316–17). And, while the camera work
admittedly would not qualify anyone for an Oscar for cinematography, if anything,
the fact that the team took the step of creating an audio and video recording of the
event undercuts the notion that they approached the transfer with a subjective intent

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to do Bullocks harm. In sum, the relatively routine nature of the transport, the
extensive documentation, including video and other record evidence, and his
relatively minor injuries all indicate that Defendants lacked the subjective intent to
harm him, and the Magistrate Judge was correct to reach that conclusion.
Bullocks fares no better in his efforts to satisfy the objective component. As
noted above, here the inquiry is whether the force applied was reasonable in light of
the circumstances. See Wilkins, 559 U.S. at 39; Hudson, 503 U.S. at 7. As the
Magistrate Judge pointed out, “[w]hen prison officials maliciously and sadistically
use force to cause harm, contemporary standards of decency are always violated.”
Hudson 503 U.S. at 9. But not every “malevolent touch by a prison guard gives rise
to a federal cause of action.” Id. The Eighth Amendment’s prohibition against “cruel
and unusual” punishment necessarily excludes de minimis uses of physical force,
“provided that the use of force is not of a sort repugnant to the conscience of mankind.”
Id. at 9–10 (quotation omitted). Here, as described above, Bullocks’ injuries were
relatively minor, including swelling and bruising. This type of injury, and more
importantly the force required to create it, certainly does not as a general matter
offend traditional standards of decency. Rather, the video evidence shows that the
officers were using a reasonable amount of force to safely transport an inmate from
the cell he had intentionally flooded to another cell.
Nor can Bullocks escape that result by seeking to satisfy the objective
component through reference to his claims of mental health injury. To start, as noted
above, absent a physical injury, such claims would not give rise to a right to relief

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under § 1983 in the prison context. But, even putting that aside, his claimed mental
health injury does not meet the objective significance requirement. Indeed, the
medical records do not tie his claim of depression to the escort events at all. Rather,
the mental health record he submitted specifically states the reason he sought antidepressants, which was not a result of mental trauma from the escort. Instead, he
wanted an increased dose of Zoloft at night because he “prefers to be energized at
night so he can work out [and] sleep during the day.” (Mental Health Records at
#102). Bullocks asserts that the mental health staff’s failure to observe in their
records that his treatment was in response to the events that occurred during the
escort could be because mental health staff misstated or altered the medical records
to hide Bullocks’ allegations against fellow institutional staff members. (Pl.’s Objs. at
#344). But that is again merely unsupported speculation. That is not enough to create
a triable issue of fact for a jury.
C.

Bullocks’ Objection To The Magistrate Judge’s Finding On Qualified
Immunity Fails.
Bullocks also objects to the Magistrate Judge’s finding that Defendants are

entitled to qualified immunity. As the Court has found that there is no underlying
constitutional violation, there is no need for the Court to address qualified immunity.
See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (noting that Court can consider the
underlying merits before or after the question of qualified immunity). In any event,
the sole objection that Bullocks raises here is that the Defendants should not receive
such immunity because “the alleged conduct was out of the scope of doing [their]
duty.” (Mot. for Leave to Amend Pl.’s Obj. to R. & R., Doc. 41, #357). The conduct
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here—transporting Bullocks from one cell to another in response to him flooding the
first cell—is clearly within the scope of Defendants’ duty as correctional officers.
Thus, Bullocks’ objection has no merit, anyway.
CONCLUSION
Based on the foregoing, the Court ADOPTS the Magistrate Judge’s R&R (Doc.
35), subject to the minor modification set forth above. Accordingly, the Court
GRANTS Bullocks’ Motion for Leave to Amend Plaintiff’s Objection to Report and
Recommendation (Doc. 41), but ultimately DISMISSES Bullocks’ Amended
Complaint (Doc. 8) WITH PREJUDICE and DIRECTS the Clerk to terminate the
case.
SO ORDERED.
April 6, 2020
DATE

DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE

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