Heilimann v. O'Brien et al

Filing 58

MEMORANDUM (Order to follow as separate docket entry) re 43 MOTION for Summary Judgment filed by Christopher Cardoni, Thomas O'Brien, Peter P Nemshick Signed by Honorable James M. Munley on 3/7/17. (sm)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
RYAN A. HEILIMANN,

:
No. 3:14cv1271
Plaintiff
:
:
(Judge Munley)
v.
:
:
STATE TROOPER THOMAS O’BRIEN, :
Individually and as a State Trooper :
for the Commonwealth of
:
Pennsylvania; STATE TROOPER
:
PETER P. NEMSHICK, Individually
:
and as a State Trooper for the
:
Commonwealth of Pennsylvania;
:
CORY MOODY; AGENT
:
CHRISTOPHER CARDONI,
:
Individually and as an employee of :
the Pennsylvania Gaming Control
:
Board; MOUNT AIRY, NO. 1, LLC
:
d/b/a MT. AIRY CASINO; JOHN DOE :
CASINO DEFENDANTS #1-25,
:
Individually and as employees of Mt. :
Airy Casino; and JANE DOE CASINO :
DEFENDANTS #1-25, Individually and :
as employees of Mt. Airy Casino,
:
Defendants
:
::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::
MEMORANDUM
Plaintiff Ryan A. Heilimann (hereinafter “plaintiff”) avers that two
Pennsylvania state troopers, a Pennsylvania Gaming Control Board
(hereinafter “GCB”) agent, and casino security violated Pennsylvania state
law and his civil rights under 42 U.S.C. § 1983 (hereinafter “section 1983”)
for events related to his detainment and arrest inside Mount Airy Casino.

Before the court for disposition is Defendants State Trooper Thomas
O’Brien, State Trooper Peter P. Nemshick, and GCB Agent Christopher
Cardoni’s (collectively “the Commonwealth defendants”) motion for partial
summary judgment on plaintiff’s section 1983 malicious prosecution claim.
(Doc. 43). For the reasons that follow, we will grant the motion.
Background
On August 25, 2012, plaintiff visited Gypsies nightclub inside Mount
Airy Casino in Mount Pocono, Pennsylvania. (Defs.’ Statement of Material
Facts (hereinafter “SOF”) ¶¶ 1-2).1 While dancing with a woman, plaintiff
was escorted off the dance floor by Defendant State Troopers O’Brien and
Nemshick along with casino employees. (SOF ¶ 2). After a casino
employee physically led plaintiff from the dance floor, State Trooper
O’Brien pushed plaintiff against a rack of chairs in the hallway. (SOF ¶ 3).
A verbal exchange ensued, and troopers then arrested and escorted
plaintiff to the Pennsylvania State Police office located inside the casino.
(SOF ¶ 4).

1

We cite to the Commonwealth defendants’ SOF for statements with
which plaintiff generally agrees. (See Doc. 54-1, Pl.’s Statement of
Material Facts (hereinafter “Pl.’s SOF”)). Also, because the
Commonwealth defendants have accepted Pl.’s SOF where their versions
of the facts diverge (see Doc. 46, Defs.’ Br. in Supp. at 2, n.1), we also cite
to Pl.’s SOF for “further explanations” provided by plaintiff.
2

Subsequent to plaintiff’s arrest, Defendant GCB Agent Cardoni
arrived at the State Police office. (SOF ¶ 5). Inside the office, State
Trooper O’Brien threw plaintiff, who was handcuffed and had one leg
shackled to a bench, to the ground, and broke plaintiff’s ankle. (SOF ¶ 6;
Pl.’s SOF ¶ 6). State Troopers O’Brien and Nemshick eventually took
plaintiff to Pocono Medical Center, and then to the Monroe County
Correctional Facility. (SOF ¶ 8).
As a result of the night’s events, the Commonwealth charged plaintiff
with aggravated assault under 18 PA. CONS. STAT. ANN. § 2702(a)(3),
resisting arrest under 18 PA. CONS. STAT. ANN. § 5104, disorderly conduct
under 18 PA. CONS. STAT. ANN. § 5503(a)(1), harassment under 18 PA.
CONS. STAT. ANN. § 2709(a)(1), and public drunkenness under 18 PA.
CONS. STAT. ANN. § 5505. (SOF ¶ 9; Pl.’s SOF ¶ 9). A jury found plaintiff
not guilty of aggravated assault and disorderly conduct, and a Monroe
County Court of Common Pleas judge dismissed plaintiff’s resisting arrest
charge on a motion for judgment of acquittal. (SOF ¶ 11; Pl.’s SOF ¶ 11).
The judge, however, found plaintiff guilty of harassment and public
drunkenness. (SOF ¶ 11).
On July 1, 2014, plaintiff filed a thirteen-count complaint against the
Commonwealth defendants as well as Mount Airy Casino and casino
3

security officer Cory Moody (collectively “the casino defendants”). The sole
count relevant to the instant motion, Count XI, asserts a section 1983
malicious prosecution claim against the Commonwealth defendants.2
(Doc. 1, Compl.).
On March 7, 2016, the Commonwealth defendants moved for partial
summary judgment on plaintiff’s section 1983 malicious prosecution claim.
(Doc. 43). The parties have briefed their respective positions and the
matter is ripe for disposition.
Jurisdiction
As this case is brought pursuant to section 1983 for a violation of
plaintiff’s constitutional rights, we have jurisdiction under 28 U.S.C. § 1331
(“The district courts shall have original jurisdiction of all civil actions arising
under the Constitution, laws, or treaties of the United States.”). We have
supplemental jurisdiction over plaintiff’s state law claims pursuant to 28
U.S.C. § 1367.

2

Counts I, III, V, VII, and XI allege civil rights violations under section 1983
against all defendants, excluding Mount Airy Casino. Counts II, IV, VI, VIIIX, and XII also assert respective Pennsylvania state law assault, battery,
false imprisonment, conspiracy, intentional infliction of emotional distress,
negligent infliction of emotional distress, and malicious prosecution claims
against Defendant Moody. Count XIII asserts a vicarious liability claim
against Defendant Mount Airy Casino. The casino defendants have moved
for summary judgment on these claims, and they are addressed in a
separate memorandum.
4

Standard of Review
Granting summary judgment is proper if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact
and that the moving party is entitled to judgment as a matter of law. See
Knabe v. Boury, 114 F.3d 407, 410 n.4 (3d Cir. 1997) (citing FED. R. CIV. P.
56(c)). “[T]his standard provides that the mere existence of some alleged
factual dispute between the parties will not defeat an otherwise properly
supported motion for summary judgment; the requirement is that there be
no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986).
In considering a motion for summary judgment, the court must
examine the facts in the light most favorable to the party opposing the
motion. Int’l Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949
(3d Cir. 1990). The burden is on the moving party to demonstrate that the
evidence is such that a reasonable jury could not return a verdict for the
nonmoving party. Anderson, 477 U.S. at 248. A fact is material when it
might affect the outcome of the suit under the governing law. Id. Where
the nonmoving party will bear the burden of proof at trial, the party moving
for summary judgment may meet its burden by establishing that the
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evidentiary materials of record, if reduced to admissible evidence, would be
insufficient to carry the nonmovant’s burden of proof at trial. Celotex Corp.
v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party satisfies its
burden, the burden shifts to the nonmoving party, who must go beyond its
pleadings, and designate specific facts by the use of affidavits, depositions,
admissions, or answers to interrogatories demonstrating that there is a
genuine issue for trial. Id. at 324.
Discussion
The Commonwealth defendants move for partial summary judgment
on Count XI, plaintiff’s section 1983 malicious prosecution claim. Plaintiff
does not oppose the motion with respect to GCB Agent Cardoni (Doc. 54,
Pl.’s Br. in Opp’n at 4, n.1), and therefore, we will grant as unopposed the
motion with respect to Defendant Cardoni. For the following reasons, we
will also grant the motion with respect to Defendants O’Brien and
Nemshick.
I. Malicious Prosecution under Section 1983
Count XI asserts a section 1983 malicious prosecution claim against
Defendants O’Brien and Nemshick. Section 1983 does not, by its own
terms, create substantive rights; rather, it provides remedies for
deprivations of rights established elsewhere in the Constitution or federal
6

law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996). Section
1983 states, in pertinent part,
Every person who, under the color of any statute,
ordinance, regulation, custom, or usage, of any State or
territory or the District of Columbia, subjects, or causes to
be subjected, any citizens of the United States or other
person within the jurisdiction thereof to the deprivation of
any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured
in an action at law, suit in equity or other proper
proceeding for redress . . . .
42 U.S.C. § 1983. Thus, to establish a claim under section 1983, two
criteria must be met. First, the conduct complained of must have been
committed by a person acting under color of state law. Kaucher v. Cty. of
Bucks, 455 F.3d 418 (3d Cir. 2006) (citing Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999)). Second, the conduct must deprive
the plaintiff of rights secured under the Constitution or federal
law. Id. (citing Am. Mfrs., 526 U.S. at 49-50).
As Defendants O’Brien and Nemshick are Pennsylvania state
troopers, the Commonwealth defendants do not dispute that they acted
under the color of state law on the night of August 25, 2012. Instead, they
challenge only plaintiff’s assertion that they deprived him of his
constitutional right under the Fourth Amendment to be secure against
unreasonable seizure, a right routinely invoked in section 1983 malicious
prosecution claims.
7

To prevail on a Fourth Amendment malicious prosecution claim under
section 1983, a plaintiff must demonstrate that: (1) the defendants initiated
a criminal proceeding; (2) the criminal proceeding ended in plaintiff’s favor;
(3) the proceeding was initiated without probable cause; (4) the defendants
acted maliciously or for a purpose other than bringing the plaintiff to justice;
and (5) the plaintiff suffered deprivation of liberty consistent with the
concept of seizure as a consequence of a legal proceeding. Black v.
Montgomery Cty., 835 F.3d 358, 364 (3d Cir. 2016) (quoting Johnson v.
Knorr, 477 F.3d 75, 82 (3d Cir. 2007) (internal quotation marks omitted)).
The Commonwealth defendants challenge only the first, second, and
fifth elements of this standard. We will address each in turn.
A. Initiation of a Criminal Proceeding
The first element of a section 1983 malicious prosecution claim
requires plaintiff to demonstrate that the defendants initiated a criminal
proceeding. Black, 835 F.3d at 364 (quoting Johnson, 477 F.3d at 82)
(internal quotation marks omitted).
The Commonwealth defendants first argue that State Trooper O’Brien
is entitled to summary judgment because he played no role in initiating
criminal proceedings against plaintiff. Specifically, they argue that only
State Trooper Nemshick initiated the criminal proceedings against plaintiff
8

because he served as the affiant on the criminal complaint. Plaintiff avers
that State Trooper Nemshick relied on information provided by State
Trooper O’Brien when charging plaintiff, and therefore, both state troopers
initiated criminal proceedings. After a careful review, we agree with the
Commonwealth defendants.
“Although prosecutors rather than police officers are generally
responsible for initiating criminal proceedings, an officer may, however, be
considered to have initiated a criminal proceeding if he . . . knowingly
provided false information to the prosecutor or otherwise interfered with the
prosecutor’s informed discretion.” Henderson v. City of Phila., 853 F.
Supp. 2d 514, 518 (E.D. Pa. 2012); see also Gallo v. City of Phila., 161
F.3d 217, 220 n.2 (3d Cir. 1998) (“Decisions have recognized that a §
1983 malicious prosecution claim might be maintained against one who
furnished false information to, or concealed information from, prosecuting
authorities.”). “[I]t is not necessary that defendant initiate the proceedings
himself[,]” as “[l]iability for malicious prosecution can also attach when
defendant influences a third party to initiate the proceedings.” Bristow v.
Clevenger, 80 F. Supp. 2d 421, 432-33 (M.D. Pa. 2000) (citations omitted).
Here, plaintiff argues that a genuine issue of material fact exists as to
whether Defendant O’Brien provided false information to, and potentially
9

conspired with, Defendant Nemshick. Plaintiff’s arguments, however,
amount to suppositions lacking evidentiary support. While Defendant
Nemshick may have relied on information provided to him by Defendant
O’Brien, plaintiff points to no evidence suggesting that Defendant O’Brien
knowingly provided false information to Defendant Nemshick, let alone a
prosecutor, or otherwise influenced Defendant Nemshick to initiate the
criminal proceedings.
At this juncture, the evidentiary materials of record would be
insufficient to carry plaintiff’s burden of proof at trial on his section 1983
malicious prosecution claim against Defendant O’Brien. Specifically,
plaintiff cannot prove the first element of his claim, that Defendant O’Brien
initiated a criminal proceeding against him. As a result, we will grant the
Commonwealth defendants’ motion for summary judgment with respect to
Defendant O’Brien. Our analysis continues only with respect to Defendant
Nemshick.
B. Favorable Termination of Criminal Proceedings
The second element of a section 1983 malicious prosecution claim
requires plaintiff to demonstrate that the prior criminal proceeding ended in
plaintiff’s favor. Black, 835 F.3d at 364 (quoting Johnson, 477 F.3d at 82)
(internal quotation marks omitted).
10

The Commonwealth defendants argue that they are entitled to
summary judgment because plaintiff was convicted of public drunkenness
and harassment in state court, and therefore, his criminal proceeding did
not end favorably. Plaintiff contends that these convictions arose out of
circumstances separate from his charges of aggravated assault, disorderly
conduct, and resisting arrest, of which he was acquitted and on which he
bases his entire malicious prosecution claim. As such, plaintiff avers that
his state criminal proceeding ended favorably. After a careful review, we
agree with plaintiff.
To satisfy the favorable termination element, “a prior criminal case
must have been disposed of in a way that indicates the innocence of the
accused . . . .” Kossler v. Crisanti, 564 F.3d 181, 187 (3d Cir. 2009)
(footnote omitted) (citing Donahue v. Gavin, 280 F.3d 371 (3d Cir. 2002)
(holding that prosecutor’s election to nol pros case after appellate court
directed retrial due to instruction error did not indicate plaintiff’s innocence);
Gilles v. Davis, 427 A.3d 197 (3d Cir. 2005) (holding that a criminal
defendant’s entry into Pennsylvania’s Accelerated Rehabilitation
Disposition program is not consistent with innocence). A plaintiff in a
section 1983 malicious prosecution claim may attempt to indicate his
innocence by demonstrating that his prior criminal proceeding terminated
11

in, among other things, an acquittal. Kossler, 564 F.3d at 187 (citations
omitted).
Critically, “the favorable termination of some but not all individual
charges does not necessarily establish the favorable termination of the
criminal proceeding as a whole.” Id. at 188. “Rather . . ., upon examination
of the entire criminal proceeding, the judgment must indicate the plaintiff’s
innocence of the alleged misconduct underlying the offenses charged.” Id.
If the statutory offenses and the facts of the case “indicate that the
judgment as a whole does not reflect the plaintiff’s innocence, then the
plaintiff fails to establish the favorable termination element.” Id.
The favorable termination rule will not apply where all criminal
charges arise from the same course of conduct and are “predicated on the
same factual basis.” Id. at 189. Conversely, the favorable termination rule
will apply where “the unlawful behavior underlying [the plaintiff’s
convictions] is wholly separate from the unlawful behavior triggering the
criminal charges and a claim of malicious prosecution.” Piazza v. Lakkis,
No. 3:11-CV-2130, 2012 WL 2007112, at *10 (M.D. Pa. June 5, 2012);
Jackson v. Nassan, No. 2:08-CV-1054, 2009 WL 2707447, at *4-5 (W.D.
Pa. Aug. 26, 2009).

12

Here, we must determine whether plaintiff’s convictions for public
drunkenness and harassment are predicated on the same factual basis as
his charges of aggravated assault, disorderly conduct, and resisting arrest,
of which he was acquitted. The criminal complaint in this matter
establishes that the charges of which a judge found plaintiff guilty,
harassment and public drunkenness, were predicated on acts plaintiff
committed while dancing. Specifically, the criminal complaint avers that
plaintiff committed harassment when he “subject[ed] a female patron to
unwanted physical contact by kissing her and grabbing her buttocks[.]”
(Doc. 54-3, Crim. Compl. (hereinafter “Crim. Compl.”) at 6). It further avers
that plaintiff committed public drunkenness when he “appear[ed] in a public
place manifestly under the influence of alcohol” such that he “may have
endangered himself or other persons or property, or annoy[ed] persons in
his vicinity[.]” (Crim Compl. at 7). These acts led casino security to
approach plaintiff and escort him from the dance floor. Only supplemental
acts after plaintiff’s removal gave rise to the additional charges of
aggravated assault, resisting arrest, and disorderly conduct, of which a jury
acquitted plaintiff. Thus, the unlawful behavior underlying plaintiff’s
convictions is wholly separate from the unlawful behavior triggering the
criminal charges underlying his malicious prosecution claim.
13

Viewing the record in a light most favorable to plaintiff, we find that
plaintiff’s criminal case ended in a way that indicates his innocence, and
therefore, terminated favorably for purposes of his section 1983 malicious
prosecution claim.
C. Deprivation of Liberty
Finally, the fifth element of a section 1983 malicious prosecution
claim requires plaintiff to demonstrate that he suffered a deprivation of
liberty consistent with the concept of seizure as a consequence of a legal
proceeding. Black, 835 F.3d at 364 (quoting Johnson, 477 F.3d at 82)
(internal quotation marks omitted).
The Commonwealth defendants argue that plaintiff did not suffer a
deprivation of liberty because he was released from incarceration on
unsecured bail and only required to attend court proceedings thereafter.
Plaintiff argues that he suffered several pretrial restrictions amounting to a
deprivation of liberty. After a careful review, we agree with the
Commonwealth defendants.
A section 1983 malicious prosecution claim must be judged under the
Fourth Amendment to the United States Constitution—which guarantees
the right of the people to be secure against unreasonable searches and
seizures—rather than substantive due process. See Albright v. Oliver, 510
14

U.S. 266, 271 (1994). The Third Circuit Court of Appeals has adopted the
“continuing seizure” theory, which holds that “[w]hen the state places
constitutionally significant restrictions on a person’s freedom of movement
for the purpose of obtaining his presence at a judicial proceeding, that
person has been seized within the meaning of the Fourth Amendment.”
Schneyder v. Smith, 653 F.3d 313, 321-22 (3d Cir. 2011).
Under the continuing seizure theory, “[p]re-trial restrictions of liberty
aimed at securing a suspect’s court attendance are all ‘seizures’ . . .
[because] the difference between detention in jail, release on bond, and
release subject to compliance with other conditions is in the degree of
resolution on the individual’s liberty, not in the kind of restriction.” Black,
835 F.3d at 367 (quoting Schneyder, 653 F.3d at 320) (emphasis in
original); compare Gallo, 161 F.3d at 222-25 (holding that the plaintiff was
“seized” because he had to post a $10,000 bond, attend court hearings,
contact Pretrial Services on a weekly basis, and was prohibited from
travelling outside of Pennsylvania and New Jersey) with DiBella v. Borough
of Beachwood, 407 F.3d 599, 603 (3d Cir. 2005) (holding that the plaintiffs
were not “seized” because they were only required to attend court
hearings; they were never arrested, never posted bail, free to travel, and
did not have to report to pretrial services).
15

Here, we find that plaintiff did not suffer a deprivation of liberty
consistent with a Fourth Amendment seizure for two reasons. First,
although plaintiff argues that his initial detainment and arrest inside the
casino amount to a seizure, plaintiff’s argument applies to a section 1983
false arrest claim rather than a section 1983 malicious prosecution claim.3
Because the Commonwealth defendants do not challenge plaintiff’s false
arrest claim here, we need not address plaintiff’s argument any further.
Second, the pretrial restrictions imposed on plaintiff do not amount to
a deprivation of his liberty. Plaintiff maintains that he suffered four pretrial
restrictions: (1) release on unsecured bail bond4; (2) appear at all
subsequent court hearings; (3) obey all further orders of the bail authority;
3

While a section 1983 false arrest claim “covers damages only for the time
of detention until the issuance of process or arraignment, and not more,” a
malicious prosecution claim “permits damages for confinement
imposed pursuant to legal process.” Johnson, 477 F.3d at 82 (internal
quotation marks and citations omitted; emphasis added).
4

Plaintiff cites Pennsylvania Rule of Criminal Procedure 524(C)(3) as
indicative of his release on unsecured bail. Rule 524 provides, in relevant
part,
(C) The types of release on bail are:
...
(1) Release on Unsecured Bail Bond: Release conditioned
upon the defendant’s written agreement to be liable for a fixed
sum of money if he or she fails to appear as required or fails to
comply with the conditions of the bail bond. No money or other
form of security is deposited.
PA. R. CRIM. P. 524(C)(3).
16

and (4) provide written notice of any change of address within forty-eight
(48) hours of the day of the change.5
To begin, unlike the plaintiff in Gallo, 161 F.3d at 222-25, who posted
a $10,000 bond for release from incarceration, plaintiff’s release on an
unsecured bail bond did not require him to actually deposit money or any
other form of security for his release from incarceration See PA. R. CRIM. P.
524(C)(3) (“No money or other form of security is deposited.”). Rather,
plaintiff’s release was conditioned only on his own written word and
agreement to incur liability for any future failure to comply with his other bail
conditions.
Next, plaintiff’s bail conditions required that he appear at all
subsequent court hearings. This requirement alone, however, does not
amount to a deprivation of liberty. DiBella, 407 F.3d at 603. The
5

Plaintiff cites Pennsylvania Criminal Rule of 526 as indicative of his bail
conditions. Rule 526 provides, in relevant part,
(A) In every case in which a defendant is released on bail,
the conditions of the bail bond shall be that the defendant
will:
(1) appear at all times required until full and final
disposition of the case;
(2) obey all further orders of the bail authority;
(3) give written notice to the bail authority, the clerk of
courts, the district attorney, and the court bail agency
or other designated court bail officer, of any change of
address within 48 hours of the date of the change; . . . .
PA. R. CRIM. P. 526.
17

requirement that plaintiff “obey all further orders of the bail authority,” in and
of itself, falls equally short of a deprivation, and plaintiff does not point to
any evidence suggesting that the bail authority ever imposed additional
orders rising to a level of something more.
Finally, like the plaintiff in DiBella, 407 F.3d at 603, plaintiff was never
required to contact pretrial services prior to trial, nor was he prohibited from
travelling. To the contrary, plaintiff, like any unrestricted citizen, had carte
blanche to travel whenever, however, and wherever he pleased without
restriction from the bail authority. Plaintiff could even change addresses if
he wished, and was not required to seek approval of such a change from
the bail authority prior to doing so. Rather, plaintiff was merely required to
inform the bail authority of any address change within forty-eight (48) hours
of the date of the change, a requirement that could hardly be construed as
a deprivation of liberty. Ultimately, we consider these restrictions
analogous to those imposed in DiBella, 407 F.3d at 603, where the plaintiff
was merely required to attend pretrial and trial proceedings.
At this juncture, the evidentiary materials of record would be
insufficient to carry plaintiff’s burden of proof at trial on his section 1983
malicious prosecution claim against Defendant Nemshick. Specifically,
plaintiff cannot prove that he suffered a deprivation of liberty consistent with
18

the concept of seizure as a consequence of a legal proceeding. As a
result, we will grant the Commonwealth defendants’ motion for summary
judgment with respect to Defendant Nemshick.
Conclusion
Based upon the above reasoning, the court will grant the
Commonwealth defendants’ motion for partial summary judgment on
plaintiff’s 1983 malicious prosecution claim and dismiss Count XI with
respect to the Commonwealth defendants. Thus, based upon our rulings
on the Commonwealth and casino defendants’ motions for summary
judgment, remaining in this case are the following claims and parties:
Count I, section 1983 excessive force claim against the Commonwealth
defendants; Count III, section 1983 assault claim against the
Commonwealth defendants; Count V, section 1983 unlawful arrest claim
against the Commonwealth defendants; Count VII, section 1983 conspiracy
claim against the Commonwealth defendants and Defendant Moody; Count
VIII, state law conspiracy claim against Defendant Moody; and Count XIII,
vicarious liability claim against Defendant Mount Airy Casino. An

19

appropriate order follows.

Date: March 7, 2017

s/ James M. Munley
JUDGE JAMES M. MUNLEY
United States District Court

20