Farivar v. Ledbetter et al (TV1)

Filing 96

MEMORANDUM OPINION. Signed by Chief District Judge Thomas A Varlan on 1/13/17. (c/m) (JBR)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TENNESSEE
FRANCO FARIVAR,
Plaintiff,
v.
LARRY LAWSON, individually, and
RICK HAMBY, individually,
Defendants.

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No.:

3:14-CV-76-TAV-HBG

MEMORANDUM OPINION
This civil matter is before the Court on pro se plaintiff’s motion for
reconsideration [Doc. 88], to which defendants responded [Doc. 90], as well as plaintiff’s
motion to correct the record [Doc. 89], and motion for a hearing [Doc. 95]. Also before
the Court is defendants motion for summary judgment [Doc. 91], to which plaintiff
responded [Doc. 94]. For the reasons discussed herein the Court will deny plaintiff’s
motion for reconsideration, grant plaintiff’s motion to correct the record, and grant
defendants’ motion for summary judgment.
I.

Background
This case arises from law enforcement’s decision to arrest and detail plaintiff on

suspicion of domestic violence [Doc. 50].
A.

Plaintiff’s Arrest and First Lawsuit

According to the complaint, plaintiff contacted the Morgan County Sheriff’s
Department on October 31, 2009, with concern over the safety and location of his wife

[Id. at 3]. Deputies Larry Lawson and Rick Hamby (“defendants”) responded [Id.].
While they were in route, they submit that plaintiff’s wife placed a 911 call in which she
accused plaintiff of “push[ing] her down and grab[bing] her wrist” [Doc. 93-1].
Defendants further submit that plaintiff’s wife subsequently gave a signed statement, in
which she alleged “abuse—physical, verbal, mental” [Doc. 93-2]. Defendant Lawson
further states that he observed “bruises to [plaintiff’s wife’s] left arm as defensive
injuries” [Doc. 93-3]. Plaintiff was arrested, but the criminal charges against him were
dismissed twelve days later [Id.].
Plaintiff filed suit against defendants, among others, in both their individual and
official capacities, on November 1, 2010. Farivar v. Ledbetter, No. 3:10-cv-462, 2012
WL 2565040 (E.D. Tenn. July, 2, 2012) (“Farivar I”).

The complaint sought

compensatory and punitive damages for the violation of civil rights under 42 U.S.C. §
1983, as well as false imprisonment, false arrest, and malicious prosecution under the
Tennessee Government Tort Liability Act (“TGTLA”), Tenn. Code. Ann. § 29-10-101, et
seq. [Farivar I, Doc. 1]. Following the Court’s dismissal on summary judgment of
plaintiff’s claims against defendants in their official capacities, the parties stipulated to a
dismissal without prejudice of the claims against defendants in their individual capacities
on February 28, 2013 [Farivar I, Doc. 50].
B.

Plaintiff’s Second Lawsuit

Plaintiff initiated the instant action, (Farivar II), on February 28, 2014, with
summons issued on March 3, 2014. Plaintiff alleges the same claims in Farivar II that he
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voluntarily dismissed in Farivar I. Nearly sixteen months later, plaintiff had not served
defendants, and on July 2, 2015, the Court ordered plaintiff to show cause as to why this
case should not be dismissed for failure to prosecute [Doc. 2]. Plaintiff subsequently
sought an extension of time to serve defendants [Doc. 3], and Magistrate Judge H. Bruce
Guyton granted the motion [Doc. 5]. Plaintiff then subsequently served defendants on
October 9, 2015 [Docs. 6, 7].
On November 17, 2015, the Court issued a Scheduling Order in this case, which
provides in section 3(j) that in the event of a discovery dispute, the parties should meet
and confer to attempt to resolve the issue [Doc. 18]. Should the parties be unable to
resolve the dispute, the Scheduling Order then requires them to attempt to resolve the
dispute by conference with the magistrate judge [Id.]. The Scheduling Order further
provides that “[i]f and only if, the parties’ dispute is unresolved following the conference
with the Magistrate Judge, the parties may file appropriate written motions with the
Court” [Id.]. These requirements have been explained to the parties in previous orders
[Docs. 31, 54].
On August 4, 2016, plaintiff filed a Motion for Default Judgment [Doc. 65] as a
discovery sanction, arguing that such a sanction was appropriate because he contended
that defendants had refused to participate in any discovery. Plaintiff did not seek a
conference with the magistrate judge to resolve this issue prior to filing his motion,
arguing that such a conference was not required because the Court had previously
directed defendants to follow the Federal Rules of Civil Procedure [Doc. 54]. Because
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plaintiff failed to comply with the Scheduling Order, and considering the drastic nature of
a default judgment as a discovery sanction, Magistrate Judge Guyton denied plaintiff’s
motion [Doc. 76].
Plaintiff then filed a motion with the Court, seeking leave to take an interlocutory
appeal of the order issued by Judge Guyton [Doc. 82]. Because Judge Guyton’s order
was issued pursuant to 28 U.S.C. § 636(b), the Court found it appropriate to construe
plaintiff’s motion as an objection to Judge Guyton’s order. Noting that plaintiff had
failed to comply with the mandates of the Scheduling Order, and noting further the
default judgment is a “drastic step only appropriate in the most extreme of cases,” the
Court denied plaintiff’s appeal of Judge Guyton’s order [Doc. 86]. Furthermore, the
Court found that even in the event that it was to consider plaintiff’s motion as a request
for certification for interlocutory appeal, the Court would deny that request [Id.].
Plaintiff subsequently filed the instant Motion for Reconsideration, urging the
Court to reconsider either granting him a default judgment, or allowing him leave to take
an interlocutory appeal [Doc. 88].

Defendants then moved for summary judgment,

arguing that plaintiff’s claims were barred by statute of limitations, and also that
defendants are entitled to qualified immunity [Doc. 91].
II.

Plaintiff’s Motion for Reconsideration
In his motion for reconsideration, plaintiff states that he is moving pursuant to

Federal Rule of Civil Procedure 54(b). Pursuant to Rule 54(b) and the “inherent power”
that district courts possess, a court may reconsider interlocutory orders or reopen portions
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of a case before a final judgment is entered. See Johnson v. Dollar Gen. Corp., No. 2:06CV-173, 2007 WL 2746952, at *2 (E.D. Tenn. Sept. 20, 2007) (citing Rodriguez v. Tenn.
Laborers Health & Welfare Fund, 89 F. App’x 949, 959 (6th Cir. 2004); Mallory v.
Eyrich, 922 F.2d 1273, 1282 (6th Cir. 1991)). This standard “vests significant discretion
in district courts.” Rodriguez, 89 F. App’x at 960 n.7. The Sixth Circuit has stated that a
district court’s authority allows them to “afford such relief from [interlocutory orders] as
justice requires.” Id. at 959 (citations omitted). This traditionally includes when the
court finds there has been an intervening change of controlling law, there is new evidence
available, or there is a need to correct a clear error or prevent manifest injustice. Id.
In support of his motion for reconsideration, plaintiff cites no intervening change
in law or newly discovered evidence, but rather largely reiterates the arguments that he
made in his previous motion. Plaintiff urges that the Court either grant him a default
judgment, or, should the Court deny his request, allow him to take an interlocutory appeal
of the Court’s denial. The Court will first address plaintiff’s motion insofar as it requests
a default judgment, and then address the issue of interlocutory appeal.
A.

Request for a Default Judgment

In requesting that the Court reconsider the denial of plaintiff’s request for a default
judgment, plaintiff reiterates his prior argument that because defendants did not adhere to
their discovery obligations prior to the expiration of the discovery deadline, “there was no
relief that [he] could possibly obtain by following the procedures” set forth in the
Scheduling Order [Doc. 88 p. 2]. Plaintiff argues that the only meaningful redress
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available to him under the circumstances was the granting of a default judgment [Id.].
Additionally, plaintiff cites to defendants lack of response to his motion for default
judgment as grounds for the Court to grant his motion, under Eastern District of
Tennessee Local Rule 7.2.
These arguments are not well taken. As a preliminary point, in its October 11,
2016, Order, the Court reopened discovery in this case, allowing for discovery to
continue until January 6, 2017 [Doc. 86]. Therefore, plaintiff has another opportunity to
work with the magistrate judge to resolve any previous discovery issues. Furthermore,
the Court notes that default judgment is a “drastic step which should be resorted to only
in the most extreme cases.” Gilmore v. Roane Cty., No. 3:13-cv-124, 2014 WL 6901792,
at *1 (E.D. Tenn. Dec. 5, 2014). This case, considering especially plaintiff’s failure to
follow the Scheduling Order’s procedures, is not such an extreme case.
Additionally, while Local Rule 7.2 states that a Court “may” deem a failure to
respond to a motion a waiver of any opposition to the relief sought, it does not require
that the Court construe a lack of response in such a way, and certainly does not mandate
that the Court grant the relief sought by the motion. See E.D. Tenn. L.R. 7.1. In this
situation, where plaintiff moves the Court to take the drastic step of imposing a default
judgment, and where plaintiff has himself failed to follow the Court’s Scheduling Order,
the Court will not read the local rules as requiring that the Court grant plaintiff the relief
he seeks. In sum, the Court maintains its belief that granting plaintiff a default judgment

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in this case is unwarranted, and will deny the motion for reconsideration insofar as it
seeks a default judgment.
B.

Request for Leave to Take an Interlocutory Appeal

As the Court will not grant plaintiff a default judgment, the Court now turns to
plaintiff’s request to certify the issue for interlocutory appeal. The Court notes at the
outset that although the Court construed plaintiff’s initial request for leave to take an
interlocutory appeal [Doc. 82] as an appeal of Judge Guyton’s order, the Court also
addressed the issue of interlocutory appeal in its prior order [Doc. 86]. In that order, the
Court indicated that it did not believe that this is a case in which certification for
interlocutory appeal is appropriate.
Section 1292(b) allows a district judge to permit that an order, which is not
otherwise appealable, to be appealable if: (1) there is substantial ground for difference of
opinion; (2) the order involves a controlling question of law; and (3) an immediate appeal
may materially advance the ultimate termination of the litigation. 28 U.S.C. § 1292(b).
The Sixth Circuit has determined that review under § 1292(b) should be used “sparingly”
and be reserved for “extraordinary” cases. Kraus v. Bd. of Cty. Road Comm’r, 364 F.2d
919, 922 (6th Cir. 1966).
As was the case with his initial motion, plaintiff has not made the required
showing to permit interlocutory appeal under § 1292(b). Specifically, plaintiff has not
made the required showing that there is a substantial ground for differing opinions on the
issue of default judgment. As the Court noted in its earlier opinion, district courts
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throughout this circuit have consistently held that a default judgement is a “drastic step,”
only appropriate in the most extreme of cases. See Thacker Indus. Serv. Co. v. AS&E
Trucking, Inc., No. 3:14-cv-289, 2014 WL 7212879, at *3 (W.D. Ky Dec. 16, 2014);
Gilmore, 2014 WL 6901792 at *1; Stooksbury v. Ross, No. 3:09-cv-498, 2012 WL
523668, at *5 (E.D. Tenn. Feb. 16, 2012). Additionally, plaintiff has still not provided
the Court with any cases in support of his argument that this “drastic step” is the
appropriate sanction where the moving party has himself failed to comply with the
procedural requirements of a scheduling order. As such, the Court maintains its belief
that this is not an “extraordinary” case such that certification for interlocutory appeal
would be appropriate. In sum, the Court will deny plaintiff’s motion for reconsideration.
The Court notes that plaintiff also filed a motion to have the Court correct an error
in the Court’s September 12, 2016, Memorandum Opinion and Order [Doc. 73], in which
the Court overruled an objection that plaintiff made to an order entered by Judge Guyton.
In its order, the Court incorrectly stated in one instance that that objection had been made
by defendants rather than by plaintiff. As such, the Court will amend its September 12,
2016, Order to reflect that plaintiff made the objection which the Court overruled.
III.

Defendants Motion for Summary Judgment
The Court now turns to defendants’ motion for summary judgment. Summary

judgment under Rule 56 of the Federal Rules of Civil Procedure is proper “if the movant
shows that there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). The moving party bears the burden
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of establishing that no genuine issues of material fact exist. Celotex Corp. v. Catrett, 477
U.S. 317, 330 n.2 (1986); Moore v. Phillip Morris Cos., 8 F.3d 335, 339 (6th Cir. 1993).
All facts and all inferences to be drawn therefrom must be viewed in the light most
favorable to the non-moving party. Burchett v. Kiefer, 310 F.3d 937, 942 (6th Cir. 2002).
“Once the moving party presents evidence sufficient to support a motion under Rule 56,
the non-moving party is not entitled to a trial merely on the basis of allegations.” Curtis
v. Universal Match Corp., Inc., 778 F. Supp. 1421, 1423 (E.D. Tenn. 1991) (citing
Catrett, 477 U.S. at 317). To establish a genuine issue as to the existence of a particular
element, the non-moving party must point to evidence in the record upon which a
reasonable finder of fact could find in its favor. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986). The genuine issue must also be material; that is, it must involve
facts that might affect the outcome of the suit under the governing law. Id.
The Court’s function at the point of summary judgment is limited to determining
whether sufficient evidence has been presented to make the issue of fact a proper
question for the factfinder. Id. at 250. The Court does not weigh the evidence or
determine the truth of the matter. Id. at 249. Nor does the Court search the record “to
establish that it is bereft of a genuine issue of material fact.” Street v. J.C. Bradford &
Co., 886 F.2d 1472, 1479–80 (6th Cir. 1989). Thus, “the inquiry performed is the
threshold inquiry of determining whether there is a need for a trial—whether, in other
words, there are any genuine factual issues that properly can be resolved only by a finder

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of fact because they may reasonably be resolved in favor of either party.” Anderson, 477
U.S. at 250.
In support of their motion for summary judgment, defendants argue both that
plaintiff’s claims are barred by statute of limitations, and that defendants are entitled to
qualified immunity. Because the Court finds that plaintiff’s claims are barred by statute
of limitations, it need not determine whether defendants are entitled to qualified
immunity.
In this case, plaintiff brings federal civil rights claims pursuant to 42 U.S.C. §
1983, as well as state law claims under the TGTLA. Pursuant to Tenn. Code. Ann. § 283-104, plaintiff’s state law claims are subject to a one-year statute of limitations. Tenn.
Code. Ann. § 28-3-104. Furthermore, because § 1983 does not have its own statute of
limitations, courts must “look to state law to determine the appropriate limitations
period.” Roberson v. Tennessee, 399 F.3d 792, 794 (6th Cir. 2005).; see also Harris v.
United States, 422 F.3d 322, 331 (6th Cir. 2005) (noting that this practice applies to both
federal § 1983 and Bivens actions). Tennessee law provides for a one-year statute of
limitations for civil rights actions, and thus plaintiff’s federal § 1983 claims are also
subject to a one-year statute of limitations. See Tenn. Code. Ann. § 28-3-104, Robertson,
399 F.3d at 794.
This is plaintiff’s second lawsuit against defendant arising from an incident that
took place on October, 31, 2009. Plaintiff voluntarily dismissed defendants from Farivar
I on February 28, 2013 [Farivar I, Doc. 50]. Plaintiff filed his complaint in Farivar II on
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February 28, 2014, well outside of the one-year statute of limitations for events that took
place on October 31, 2009.
The Court notes, however, that “Tennessee law governs not only the length of the
limitations period, but also closely related questions of tolling and application.”
Markowitz v. Harper, 197 F. App’x 387, 389 (6th Cir. 2006). One such “related question
of tolling and application” is the Tennessee “savings statute.” See Dolan v. United
States, 514 F.3d 587, 595 (6th Cir. 2008) (applying the Tennessee savings statute in a
Bivens action); Chase v. White, 3:16-cv-01576, 2016 WL 7210155, at *6 (W.D. Tenn.
Dec. 13, 2016) (“The Sixth Circuit has expressly recognized that state savings statutes are
among the tolling provisions interrelated with the statute of limitations”). The Tennessee
savings statute provides:
If the action is commenced within the time limited by a rule or statute of
limitation, but the judgment or decree is rendered against the plaintiff upon
any ground not concluding the plaintiff’s right of action, or where the
judgement or decree is rendered in favor of the plaintiff, and is arrested, or
reversed on appeal, the plaintiff, or the plaintiff’s representatives and
privies, as the case may be, may, from time to time, commence a new
action within one (1) year after the reversal or arrest.
Tenn. Code. Ann. § 28-1-105(a).
Applying this provision, as Farivar I resulted in a voluntary dismissal, a dismissal
not terminating plaintiff’s right of action, the claims in Farivar II would not be barred by
statute of limitations as long as plaintiff commenced Farivar II within one year of the
dismissal of Farivar I. See id; see also Dolan, 514 F.3d at 595. Under Tennessee Rule
of Civil Procedure 3, however, “timely service of process is essential to the
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commencement of an action such that the statute of limitations is satisfied.” Dolan, 514
F.3d at 595; see also Markowitz, 197 F. App’x at 389 (stating in a case involving § 1983
claims “among the Tennessee provisions bearing on the statute-of-limitations question is
Rule 3 of the Tennessee Rules of Civil Procedure”). Tennessee Rule of Civil Procedure 3
provides:
All civil actions are commenced by filing a complaint with the clerk of the
court. An action is commenced within the meaning of any statute of
limitations upon such filing of a complaint, whether process be issued or
not issued and whether process be returned served or unserved. If process
remains unissued for 90 days or it is not served within 90 days of issuance,
regardless of the reason, the plaintiff cannot rely upon the original
commencement to toll the running of a statute of limitations unless the
plaintiff continues the action by obtaining issuance of new process within
one year from issuance of the previous process, or, if no process is issued,
within one year of the filing of the complaint.
Dolan, 514 F.3d at 595 (citing Tenn. R. Civ. P. 3).
Accordingly, in order for plaintiff to rely on his original commencement date for
purposes of the savings statute, he was required to serve process on defendants within 90
days of its issuance, or, in the event that he was unable to serve process, to obtain new
process within one year from issuance of the prior process. Id.
In this case, plaintiff filed suit in Farivar II on February 28, 2014, within one year
of Farivar I’s dismissal. Process for Farivar II issued on March 3, 2014. Plaintiff,
however, did not serve process on defendants within 90 days of that date, nor did he
obtain issuance of new process within one year of that date. Rather, more than fifteen
months passed before plaintiff requested an extension of time to serve process on July 16,
2016 [Doc. 3], only doing so following the Court’s order to show cause [Doc. 2].
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Therefore, because plaintiff did not either serve process on defendants within 90 days of
the issuance of process, or obtain issuance of new process within one year from issuance
of the prior process, plaintiff cannot rely upon the original commencement date of
February 28, 2014 to toll the statute of limitations. See Dolan, 514 F.3d at 596. As such,
plaintiff did not commence Farivar II within the meaning of Tennessee Rule of Civil
Procedure 3 for purposes of the savings statute within one year of the voluntary dismissal
in Farivar I. Consequentially, all of plaintiff’s claims are barred by the statute of
limitations.
Plaintiff raises two arguments as to why the statute of limitations should not
operate to bar his claims. The Court has considered plaintiff’s arguments, and finds that
they are without merit.1
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Although plaintiff did not raise this argument in his response to defendants’ motion for
summary judgment, in a prior filing the plaintiff asserted that the statute of limitations defense
should be deemed waived because it had not previously been raised by these defendants [Doc.
87]. The Court notes, however, that defendants raised the affirmative defense in their original
answer [Doc. 14], as well as their answer to the amended complaint [Doc. 56]. While the
defense was pled generally in the answer, the current law in the Sixth Circuit allows that “an
affirmative defense may be pleaded in general terms and will be held to be sufficient . . . as long
as it gives plaintiff fair notice of the nature of the offense.” Lawrence v. Chabot, 182 F. App’x
442, 456 (6th Cir. 2006). See also Montgomery v. Wyeth, 580 F.3d 455, 467 (6th Cir. 2009)
(finding defendant sufficiently pled an affirmative defense that states “Plaintiff’s causes of action
are barred in whole or in part by the applicable statutes of limitations and repose”).
The Court does note, however, that some district courts have held that the Supreme
Court’s standards for a well-pleaded complaint should apply to the pleading of affirmative
defenses. See e.g., United States v. Quadrini, No. 2:07-cv-13227, 2007 WL 4303213, at *4
(E.D. Mich. Dec. 6, 2007) (“Like the plaintiff, a defendant also must plead sufficient facts to
demonstrate a plausible affirmative defense, or one that has a ‘reasonably founded hope’ of
success.”). Because the Sixth Circuit has not held that the heightened pleading standard applies
to affirmative defenses, the Court will follow the current Sixth Circuit precedent. See Depositors
Ins. Co. v. Estate of Ryan, 637 F. App’x 864, 869 (6th Cir. 2016) (noting that the Sixth Circuit
has not addressed the “precise issue of whether the Twombly/Iqbal heightened pleading standard
applies to affirmative defenses”).
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First, the plaintiff states that the statute of limitations should not bar his claims
because Magistrate Judge Guyton granted his motion for extension of time to perform
service [Doc. 5]. The Court notes, however, that plaintiff’s motion was not filed until
July 16, 2015, over fifteen months from the time that process issued in this case, well
outside the time limit required by Tennessee Rule of Civil Procedure 3. See Tenn. R.
Civ. P. 3. Additionally, as this Court noted in a previous case, “when state law requires
service of process to satisfy the statute of limitations and those state law requirements
have not been met, extending the [time allowed for service of process pursuant to Rule
4m] won’t help.”

Sydney v. Columbia Sussex Corp., No. 3:13-cv-312, 2014 WL

7156953, at *5 (E.D. Tenn. Dec. 15, 2014) (internal quotations omitted). “It’s not the
failure to serve within the 120 days . . . that has undone the plaintiff here. It is state law,
which must be satisfied in addition to the Rule 4(m) requirement.” Id.; see also Dolan,
514 F.3d at 595 (applying Tennessee Civil Procedure Rule 3 to a federal Bivens claim).
Thus, while plaintiff’s service of process may have been timely for purposes of Rule 4
due to Judge Guyton’s grant of an extension, it did not satisfy the requirements of
Tennessee state law for purposes of the statute of limitations. Plaintiff may not seek to
rely on Tennessee’s state law savings statute to preserve his claim, while seeking to
ignore the state law requirements of Tennessee Rule of Civil Procedure 3 that work in
conjunction with the savings statute. Consequently, although Judge Guyton granted
plaintiff an extension of time to perform service, that does not render plaintiff’s claims
timely for purposes of the statute of limitations.
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Secondly, plaintiff argues that his failure to serve defendants within the time
period mandated by Tennessee law should be excused because defendants attempted to
“evade service” [Doc. 94]. Plaintiff ignores, however, the plain language of Tennessee
Rule of Civil Procedure 3, which applies when process is not served “regardless of the
reason.” Tenn. R. Civ. P. 3; see also Slone v. Mitchell, 205 S.W.3d 469, 473 (Tenn. Ct.
App. 2005) (“[T]he phrase regardless of the reason is clear in its meaning. The language
leaves no doubt that the reason for process not being issued is not a consideration.”);
Chandler v. WFM-MO, Inc., No. 13-2450, 2014 WL 1654033, at *3 (W.D. Tenn. Apr.
24, 2014) (citing Jones v. Cox, 316 S.W.3d 616, 622 (Tenn. Ct. App. 2008))
(“Withholding service for one year, even for a very reasonable purpose, renders a
complaint ineffective for tolling the statute of limitations.”).

Therefore, defendants

alleged attempts to evade service do not excuse plaintiff’s failure to comply with
Tennessee Rule of Civil Procedure 3 for purposes of the statute of limitations.
In sum, the Court does not find that plaintiff’s arguments have merit, and thus,
finds that plaintiff’s claims are barred by the statute of limitations. Thus, the Court will
grant defendants’ motion for summary judgment.
IV.

Motion for a Hearing
The Court next turns to plaintiff’s motion for a hearing [Doc. 95]. Although

plaintiff addressed the motion to Magistrate Judge Guyton, as the Court is ruling on
defendants’ motion for summary judgment it will also address this motion. In plaintiff’s
motion for a hearing, he requests Judge Guyton’s assistance in resolving a number of
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discovery disputes, including scheduling a deposition of defendants’ counsel, Rhonda
Bradshaw, whom plaintiff asserts is a witness in this litigation. Because the Court will be
dismissing plaintiff’s claims as barred by statute of limitations, there is no need for
further discovery in this case. As such, the Court will deny plaintiff’s motion [Doc. 95]
as moot.
V.

Conclusion
For the reasons discussed herein, plaintiff’s motion for reconsideration [Doc. 88]

will be DENIED, plaintiff’s motion to correct the record [Doc. 89] will be GRANTED,
and defendants’ motion for summary judgment [Doc. 91] will be GRANTED. Plaintiff’s
motion for a hearing [Doc. 95] will be DENIED as moot. The Clerk of Court will be
DIRECTED to CLOSE this action.
ORDER ACCORDINGLY.

s/ Thomas A. Varlan
CHIEF UNITED STATES DISTRICT JUDGE

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