Lamb v. Sheriff Richard Wiles et al

Filing 168

REPORT AND RECOMMENDATIONS re 127 Motion for Summary Judgment filed by Carl Edward Lamb, 137 Motion to supplement, 138 Second Supplement filed by Carl Edward Lamb. Signed by Judge Anne T. Berton. (mn)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
CARL EDWARD LAMB,
Plaintiff,
v.
CPI CAMACHO,
CPI F. ESTRADA,
OFFICER WILKS,
OFFICER A. SALAZAR, and
OFFICER D. ACUNA,
Defendants.

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No. EP-16-CV-292-KC-ATB

REPORT AND RECOMMENDATION
OF THE MAGISTRATE JUDGE
On this day, the Court considered Plaintiff’s Motion for Summary Judgment (ECF. No.
127, 137, 138) filed on May 15, 2017, by Plaintiff Carl Edward Lamb, and Defendants’
Response to Plaintiff’s Motion for Summary Judgment (ECF. No. 146) filed on June 16, 2017,
by Defendants Camacho, Estrada, Salazar, Acuna, and Wilks.1 The current motion was referred
to this Court pursuant to the Standing Order referring prisoner civil rights cases to United States
Magistrate Judges. After due consideration, the Court RECOMMENDS that Plaintiff’s Motion
for Summary Judgment be DENIED as set forth herein.
I.

PROCEDURAL BACKGROUND
Plaintiff Carl Edward Lamb, proceeding pro se and in forma pauperis, was previously

detained at the El Paso County Detention Facility (“Detention Facility”). (ECF. Nos. 1-3). The
allegations in Plaintiff’s Complaint arise from his pretrial detention at the Detention Facility and
his incidents of self-mutilation by way of “cutting.” (See Compl. ¶ 1 et seq.).
1

As noted below, Plaintiff has twice supplemented his Motion for Summary Judgment with
additional arguments and evidence. (ECF. Nos. 137, 138). As such, the Court will construe the entirety
of these filings as Plaintiff’s Motion for Summary Judgment.
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On July 25, 2016, Plaintiff sought a preliminary injunction, which the Court denied.
(ECF. Nos. 5, 46, 54). Thereafter, on August 26, 2016, Defendants filed a Motion to Dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. (ECF. No. 36). On December
13, 2016, the Court issued a Report and Recommendation recommending that Defendants’
Motion to Dismiss be granted in part and denied in part, which the District Court adopted. (ECF.
Nos. 56, 85). Consequently, following the District Court’s Order, only the following claims
remain:


Corporal Camacho - failure to protect from self-inflicted harm and deliberate
indifference to serious medical needs regarding the April 16, 2016 incident;



Corporal Estrada - failure to protect from self-inflicted harm, deliberate
indifference to serious medical needs, and retaliation regarding the April 4 and
May 25, 2016 incidents;



Officer Wilks - deliberate indifference to serious medical needs regarding the
May 25, 2016 incident;



Officer Salazar - deliberate indifference to serious medical needs regarding the
May 25, 2016 incident; and



Officer Acuna - deliberate indifference to serious medical needs regarding the
May 25, 2016 incident.

(ECF. Nos. 56, p. 37-39; 85, p. 13).
Throughout the subsequent months, Plaintiff filed numerous notices, settlement offers,
motions, subpoenas, and requests for injunctions, which the Court will not recount in detail here.
(See ECF Nos. 29, 37, 62, 66, 87, 90, 91, 109, 116, 118).
Subsequently, on May 9, 2017, Plaintiff sought to compel the production of an audio CD
involving the intercom calls between Plaintiff and the guard station on May 25, 2016, which the
Court granted. (ECF. Nos. 124, 130). On June 2, 2017, Plaintiff filed a motion seeking a Court
Order requiring the jail to mail the audio CD in question to the Court in support of his Motion for

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Summary Judgment. (ECF. No. 136). Defendants responded by providing the CD in question to
the Court and filing various objections. (ECF. No. 139). Accordingly, the Court found that
Plaintiff’s Motion was moot and took the objections under advisement, which will now be
addressed below. (ECF. Nos. 140, 149).
On May 15, 2017, Plaintiff moved for summary judgment on his remaining claims.
(ECF. No. 127). Thereafter, Plaintiff twice supplemented his motion for summary judgment
with additional evidence and arguments. (ECF. Nos. 137, 138). Following the granting of a
continuance, Defendants responded in opposition to Plaintiff’s Motion for Summary Judgment.
(ECF. No. 146).

Additionally, on August 10, 2017, Defendants filed a Cross Motion for

Summary Judgment. (ECF. No. 166). However, in the interest of judicial economy, the Court
will address Defendants’ Cross Motion for Summary Judgment in a separate Report and
Recommendation. Accordingly, Plaintiff’s Motion for Summary Judgment is now ripe for the
Court to adjudicate.
II.

FACTUAL BACKGROUND2
Because Plaintiff’s filings contain numerous irrelevant and voluminous materials, the

Court only recounts the facts relevant to the remaining Defendants and Plaintiff’s claims during
the applicable time periods.
a.

Undisputed Facts

Plaintiff intentionally cut himself on multiple occasions and has a history of mutilating
himself. (ECF. No. 146-1, Defendants’ Response to Plaintiff[’]s Proposed Undisputed Facts
(“UF”), ¶ 1, 7). Plaintiff “sometimes” wore a red wristband to indicate he was on suicide
2

When recounting the background information, the Court has accepted all of the nonmoving
party’s properly supported fact assertions as true and has given the nonmoving party the benefit of all
reasonable inferences that can be drawn from the fact record before it. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986) (holding that all justifiable inferences are to be drawn in the nonmovant’s
favor).
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observation, and although Defendants were generally aware that Plaintiff was on suicide
observation, the exact dates remain in dispute. (UF ¶ 1). Moreover, on various occasions,
medical personnel have ordered that Plaintiff was not to receive “anything sharp.” (Id.).
b.

Plaintiff’s Account

On April 4, 2016, Plaintiff was on suicide observation, which includes video surveillance
by a centralized guard station. (ECF. No. 127, p. 31).3 While on suicide observation, Plaintiff
wore a red wristband, had a yellow observation sheet placed outside of his cell block to indicate
that he was a suicide risk, and was not allowed access to sharp objects or razors without
supervision. (Id.). Nonetheless, on April 4, 2016, despite knowing that Plaintiff was on suicide
observation, Defendant Estrada provided Plaintiff with unsupervised access to a razor.4 (Id.).
When Defendant Estrada returned to recover the razor, Plaintiff stated that he was not finished
cutting his hair. (Id.). Thereafter, Defendant Estrada removed the handle and allowed Plaintiff
to keep the razorblade, stating “[that way] it would not look like an officer gave [Plaintiff] the
razor.” (Id.). After a few days, Plaintiff cut himself with the razor given to him by Defendant
Estrada. (Id. at 32).
Soon after, on April 16, 2016, while on the same suicide observation protocol, Plaintiff
alleges that Defendant Camacho provided him with unsupervised access to a razor, despite his
knowledge that Plaintiff was on suicide observation. (Id. at 33). While providing Plaintiff with
the razor, Defendant Camacho allegedly stated, “I am willing to give you a razor but if you cut
[yourself] don't do that [expletive] on my shift.” (Id.). Subsequently, at approximately 6:55 p.m.

3

Because Plaintiff has filed numerous affidavits, the Court references the internal CM/ECF
pagination in the interests of clarity.
4

Plaintiff also references the date of March 4, 2016. (ECF. No. 127, p. 31). The Court notes,
however, that this appears to by a typographic error.
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during a shift change, Plaintiff cut himself with the razor provided by Defendant Camacho. (Id.
at 34).
Finally, on May 25, 2016, Plaintiff cut himself multiple times early in the day.5 (Id. at
35; UF ¶ 7). During a shift change at approximately 7:00 p.m., Plaintiff showed Defendant
Estrada his wounds and requested medical care. (ECF. No. 127, p. 35; Compl. ¶¶ 37-38).
However, because Plaintiff had reported Defendant Estrada to his supervisors for providing
Plaintiff with unsupervised razor access, Plaintiff alleges, in essence, that the following
interaction took place:
Defendant Estrada:

what are you going to do tell the [Sergeant] I’m giving you
razors again[?] [D]on[’]t be [sic] giving my name up . . . .”

Plaintiff:

[Responds in the affirmative].

Defendant Estrada:

Don’t be giving up my name. You need to go to the clinic
right?”

Plaintiff:

[Responds in the affirmative].

Defendant Estrada:

We will see about that, you don’t have [expletive] coming.

(ECF. No. 127, p. 35; see Compl. ¶ 38). Thereafter, Plaintiff dug further into his cuts with a
razor, smeared blood over his cell windows, and hung a shower curtain to attempt suicide. (ECF.
No. 127, p. 35-36, 38; see Compl. ¶ 39). When Defendants Salazar and Acuna entered Plaintiff’s
cell to retrieve the curtain, Plaintiff showed them his wounds but they took no action. (ECF. No.
127, p. 36). Similarly, Defendant Wilks, despite seeing Plaintiff through the observation camera
and being informed of Plaintiff’s injuries on the intercom, also took no action. (Id. at 35-36).
Thereafter, Plaintiff alleges that Defendants Estrada, Salazar, Acuna, and Wilks allowed him to
bleed in his cell for ten hours until the morning of May 26, 2016, when he was taken to the
5

Although Defendants agree that Plaintiff had cut himself early on May 25, 2016, Defendants also
contend that Plaintiff was taken to the clinic immediately following these incidents. (UF ¶ 7).
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clinic. (Id. at 36).
c.

Defendants’ Account

Defendant Estrada denies that he provided Plaintiff with a razor on April 4, 2016. (UF ¶
3). Although Defendant Estrada admits that he provided Plaintiff with razors twice in April
2016, Plaintiff was under close observation on both occasions and Defendant Estrada returned
soon thereafter to recover the razors. (ECF. No. 146-8, Estrada Affidavit “Estrada Aff.” ¶¶ 8-9).
Defendant Estrada additionally states that he never removed a handle from a razor that he
provided to Plaintiff or stated that “[this way] it wouldn’t look like an officer gave him the
razor.” (UF ¶ 3; Estrada Aff. ¶ 8).
Regarding the April 16, 2016 incident, Defendant Camacho denies that he provided
Plaintiff with unsupervised razor access while he was on suicide observation. (ECF. No. 146-14,
Camacho Affidavit “Camacho Aff.” ¶ 15). Defendant Camacho further contends that he never
stated “I’m willing to give you a razor but if you cut yourself[,] don’t do that [expletive] on my
watch.” (Id.).
Lastly, regarding the May 25, 2016 incident, Defendant Estrada alleges that, although he
did not observe Plaintiff’s injuries, he made immediate arrangements to take Plaintiff to the
clinic and Plaintiff was transported within five minutes.

(Estrada Aff. ¶ 11).

Similarly,

Defendant Salazar observed Plaintiff’s arms, which were “red” rather than bleeding, and
witnessed an officer take him to the clinic within five minutes. (ECF. No. 146-20, Salazar
Affidavit “Salazar Aff.” ¶ 11). Defendant Wilks likewise notes that Plaintiff received his
requested medical attention at 7:35 p.m. (ECF. No. 146-21, Wilks Affidavit “Wilks Aff.” ¶ 8).
Finally, although Defendant Acuna has no recollection of Plaintiff’s self-mutilation on that day,
at no time did Defendant Acuna observe Plaintiff smear blood on his window. (ECF. No. 146-

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13, Acuna Affidavit “Acuna Aff.” ¶¶ 7, 11-12). None of the Defendants indicate any incidents
after 7:35 p.m. on May 25, 2016.
III.

EVIDENTIARY OBJECTIONS
Defendants object to a CD on file with the Court regarding intercom calls between

Plaintiff and Defendants on May 25, 2016. (ECF. No. 139). Specifically, Defendants object to
Plaintiff’s representations regarding the contents of the CD, the authentication regarding the
various voices on the CD, and the probative value of the CD. (Id.). Plaintiff responds with a
sworn affidavit purporting to authenticate the contents of the CD.

(ECF. No. 148-1).

Specifically, Plaintiff makes the following representations regarding the contents of the CD: 6


05-43-04 – Plaintiff asks Defendant Wilks to call mental health, and
Defendant Wilks responds “let me see if I can get a hold of them.”



05-54-52 – Plaintiff tells an unidentified Defendant “you see all of this
blood, take me to medical.”



6-52-19 – Plaintiff states that he needs to go to the medical clinic, and
Defendant Wilks, after a brief clarification, states “hold on let me see if I
can get a hold of them.



6-53-45 – Plaintiff tells Defendants Salazar and Acuna that “I need to go
to the clinic,” although Plaintiff is not heard referencing his alleged
bleeding. Moreover, Defendants Salazar and Acuna engage in an
unintelligible conversation regarding the shower curtain.



7-30-39 – Plaintiff states to Defendant Wilks “Sir, what’s going on with
medical.” Thereafter, Defendant Wilks responds that there were currently
women at the clinic and that Plaintiff would have to wait. Plaintiff
responds by accusing Defendant Wilks of lying, and Defendant Wilks
responds that he is telling the truth.



9-20-06 – Plaintiff asks Defendant Acuna “what’s going on with the
clinic?” Defendant Acuna then inquires why Plaintiff needed access to the
clinic. Plaintiff states that it was “for [his] arm” and Defendant Acuna
replies “alright let me call the clinic again.”

6

The Court notes that the file numbers contained in the CD do not appear to correspond to a time
code or exact date.
No. EP-16-CV-292-KC-ATB

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

10-31-02 – Plaintiff asks Defendant Acuna “what’s going on with the
clinic.” Defendant Acuna responds “they’re busy right now [], they’re
going to call me back.”

(See ECF. Nos. 139; 142; 148-1, p. 2-3).
Even assuming arguendo that Plaintiff has authenticated the CD, the Court agrees with
Defendants that the CD is of limited probative value. As noted below, the dispositive question is
whether Defendants provided Plaintiff with unsupervised access to razors and whether
Defendants delayed in taking Plaintiff to the clinic on May 25, 2016, despite knowledge of his
“open lacerations.” The above-noted facts only indicate that Plaintiff requested access to the
clinic at unknown times, not that Defendants ignored Plaintiff’s requests for medical care or
provided Plaintiff with unsupervised access to razors. Moreover, because Defendants dispute the
facts underlying Plaintiff’s claims, the Court must accept Defendants’ version of the facts for the
purposes of ruling on Plaintiff’s Motion for Summary Judgment. See Club Retro LLC v. Hilton,
568 F.3d 181, 194 (5th Cir. 2009); Fed. R. Civ. P. 56. Accordingly, this evidence is immaterial
for the purposes of Plaintiff’s Motion for Summary Judgment.
As such, Defendants’ objections are sustained with respect to the probative value and
relevance of the CD for the purposes of this Report and Recommendation.
IV.

SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate when “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). “A genuine dispute of fact exists when evidence is sufficient for a reasonable
jury to return a verdict for the non-moving party, and a fact is material if it might affect the
outcome of the suit.” Willis v. Cleco Corp., 749 F.3d 314, 317 (5th Cir. 2014) (citation and
quotation marks omitted).
No. EP-16-CV-292-KC-ATB

A “party seeking summary judgment always bears the initial
8

responsibility of informing the district court of the basis for its motion, and identifying those
portions of the record which it believes demonstrate the absence of a genuine issue of material
fact.” EEOC v. LHC Group, Inc., 773 F.3d 688, 694 (5th Cir. 2014) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986)). If the moving party meets this initial burden, “‘the onus
shifts to ‘the nonmoving party to go beyond the pleadings and by her own affidavits, or by the
depositions, answers to interrogatories, and admissions on file, designate specific facts showing
that there is a genuine issue for trial.’” Id. (quoting Celotex Corp., 477 U.S. at 324). The Court
must draw all reasonable inferences in favor of the nonmoving party, and refrain from making
credibility determinations. Id. (quoting Turner v. Baylor Richardson Med Ctr., 476 F.3d 337,
343 (5th Cir. 2007)).
“When [a] plaintiff moves for summary judgment, it must affirmatively demonstrate that
there is no genuine issue of material fact as to each element of its causes of action.” Sanders v.
Unum Life Ins. Co. of Am., 2007 U.S. Dist. LEXIS 72062, at *8 (W.D. Tex. 2007) (citing
Fontenot v. Upjohn Co., 780 F.2d 1190, 1195 (5th Cir. 1986)).
V.

ANALYSIS
In Plaintiff’s Motion for Summary Judgment, Plaintiff essentially recounts his version of

the facts and claims that he is entitled to summary judgment as a result. (ECF. No. 127, p. 1223). In various portions of his filings, Plaintiff suggests that “everything I have alleged in my
complaint[,] . . . [D]efendants have admitted to . . . .” (See id. at 17, 38).

Moreover, Plaintiff

accuses Defendants of perjury, falsifying daily activity reports, and falsifying medical records.
(See e.g., ECF. Nos. 127, p. 38, 115; 137, p. 3, 6; 137-2, p. 34). Accordingly, Plaintiff contends
that he has proven by “clear and convincing evidence” that he is entitled to summary judgment
as a matter of law. (See ECF. No. 137-2, p. 18, 20).

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Defendants respond that disputed facts remain as Defendants Estrada and Camacho
contend that they never provided Plaintiff with unsupervised access to razors. (ECF. No. 146, p.
14-18). Regarding the May 25, 2016 incident, Defendants argue that Defendants Estrada, Wilks,
Salazar, and Acuna provided Plaintiff with medical care within five minutes of learning of
Plaintiff’s alleged injuries – testimony which is supported by records from the jail clinic. (Id. at
20-22). Moreover, Defendants contend that material facts remain with respect to Plaintiff’s
retaliation claims against Defendant Estrada. (Id. at 24). Specifically, Defendants argue that, as
Plaintiff received immediate medical attention, no retaliatory adverse act or causation has been
demonstrated.

(Id.).

Lastly, Defendants contend that Plaintiff has not met his burden of

overcoming their defense of qualified immunity. (Id. at 24-25).
a.

Legal Standards

To prove deliberate indifference, a prisoner must establish two elements: (1) that he or
she was deprived of a medical need that is “objectively, ‘sufficiently serious,” and (2) that the
defendant had a “sufficiently culpable state of mind” (i.e. deliberate indifference to inmate health
or safety). Farmer v. Brennan, 511 U.S. 825, 834 (1994) (citations omitted); Ball v. LeBlanc,
792 F.3d 584, 594 (5th Cir. 2015) (citations omitted). To establish a “sufficiently culpable state
of mind,” a plaintiff must show that: “(1) the official was aware of facts from which an inference
of substantial risk of serious harm could be drawn; (2) the official actually drew that inference;
and (3) the official’s response indicates that the official subjectively intended that harm to
occur.” Thompson v. Upshur Cty., 245 F.3d 447, 458-59 (5th Cir. 2001) (citation omitted).
Similarly, although there is no “constitutionally significant distinction between failure-toprotect and medical care claims,” to prove a failure-to-protect claim a plaintiff must establish
that: (1) the defendant had subjective knowledge of a substantial risk of serious harm to a pretrial

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detainee; and (2) the defendant nevertheless disregarded the risk of suicide by responding to it
with deliberate indifference. Hare v. City of Corinth, 74 F.3d 633, 650 (5th Cir. 1996).
Regarding retaliation, “[t]o state a valid claim for retaliation . . . , a prisoner must allege
(1) a specific constitutional right; (2) the defendant’s intent to retaliate against the prisoner for
his or her exercise of that right; (3) a retaliatory adverse act; and (4) causation.” Jones v.
Greninger, 188 F.3d 322, 324-25 (5th Cir. 1999) (per curiam). The Plaintiff must also establish
“that but for the retaliatory motive the complained of incident . . . would not have occurred.”
Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995).
Lastly, with regard to qualified immunity, qualified immunity involves a two-pronged
inquiry: “whether (1) defendant's conduct violated a constitutional right and (2) that right was
clearly established at the time of the misconduct – in any sequence.” Manis v. Lawson, 585 F.3d
839, 843 (5th Cir. 2009). At the summary judgment stage, “once a state official . . . asserts the
defense, the burden shifts to the plaintiff to show that the defense is not available.” Trent v.
Wade, 776 F.3d 368, 376 (5th Cir. 2015) (citing Kovacic v. Villarreal, 628 F.3d 209, 211 (5th
Cir. 2010)). “The plaintiff therefore bears the burden of showing a genuine and material dispute
as to whether the official is entitled to qualified immunity.” Trent, 776 F.3d at 376 (citing Brown
v. Callahan, 623 F.3d 249, 253 (5th Cir. 2010)).
b.

Analysis

As noted in the Court’s previous Report and Recommendation, Plaintiff’s deliberate
indifference and failure-to-protect claims resulting from the April 4 and 16, 2016 incidents hinge
on whether Defendants Camacho and Estrada knowingly provided Plaintiff with unsupervised
access to razors. (See ECF. No. 56, p. 22). Notwithstanding Plaintiff’s conclusory contention
that these Defendants “admitted” to wrongdoing, Defendants Camacho and Estrada flatly deny

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these allegations. (Estrada Aff. ¶¶ 8-9; Camacho Aff. ¶ 15). Accordingly, genuine issues of
material fact remain regarding whether Defendants Camacho and Estrada knowingly provided
Plaintiff with unsupervised access to razors.
Similarly, Plaintiff’s deliberate indifference claims stemming from the May 25, 2016
incident hinge on whether Defendants Estrada, Acuna, Salazar, and Wilks knowingly deprived
Plaintiff of medical care for his alleged arm lacerations.

(See ECF. No. 56, p. 23-24).

Defendants Estrada, Salazar, and Wilks all contend that Plaintiff was taken to the clinic within
five minutes (at approximately 7:35 p.m.) of Plaintiff requesting access to medical care. (Estrada
Aff. ¶ 11; Salazar Aff. ¶ 11; Wilks Aff. ¶ 8). None of the Defendants indicate any incidents after
7:35 p.m. on May 25, 2016.
Consistent with these affidavits, clinic notes entered at 9:54 p.m. on May 25, 2016,
confirm that Plaintiff received reapplication of his surgical tape strips, which notably Plaintiff
claimed “didn’t hold due to bleeding.” (ECF. No. 146-11, p. 46). Plaintiff was also seen by
Emergence Health Network (“EHN”) professionals at 11:46 p.m. (ECF. No. 146-10, p. 37).
During this meeting, Plaintiff failed to request medical care and no medical professional noted
his “open lacerations.” (ECF. No. 146-10, p. 37). Similarly, Plaintiff was seen by EHN workers
for mental health evaluations on May 26, 2016, at 9:57 a.m., 3:25 p.m., and 11:39 p.m. and
Plaintiff never requested medical care, nor did these medical professionals observe Plaintiff’s
alleged lacerations. (ECF. No. 146-10, p. 32-36). This summary judgment evidence suggests
that Plaintiff was not denied medical care on May 25, 2016, and therefore, summary judgment in
Plaintiff’s favor is inappropriate.
Lastly, Plaintiff’s retaliation claim against Defendant Estrada hinges on whether
Defendant Estrada denied him medical care on May 25, 2016, due to Plaintiff’s reporting of

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Defendant Estrada. (See ECF. No. 56, p. 18-19). As noted above, the summary judgment
evidence suggests that Plaintiff was not denied medical care on May 25, 2016, and therefore, that
Defendant Estrada did not engage in a retaliatory adverse act or cause Plaintiff’s alleged harms.
Accordingly, Plaintiff has not satisfied his burden to demonstrate that no genuine issue of
material fact exists regarding his retaliation claim.
In sum, Defendants have produced competent summary judgment evidence that: (1)
Defendants Estrada and Camacho never provided Plaintiff with unsupervised access to razors;
(2) Defendants Estrada, Acuna, Salazar, and Wilks immediately secured Plaintiff access to
medical care on May 25, 2016; and (3) Defendant Estrada never retaliated against Plaintiff.
Accordingly, Plaintiff has not satisfied his burden to establish that no genuine issues of material
fact exist.7 Similarly, the Court finds that, because Plaintiff has not carried his burden with
respect to his claims on summary judgment, he has also not met his burden of establishing the
inapplicability of qualified immunity. As such, the Court recommends that Plaintiff’s Motion for
Summary Judgment be denied.
VI.

CONCLUSION
Based on the foregoing, the Court RECOMMENDS that Plaintiff’s Motion for Summary

Judgment (ECF. Nos. 127, 137, 138) be DENIED.
SIGNED and ENTERED this 21st day of August, 2017.

ANNE T. BERTON
UNITED STATES MAGISTRATE JUDGE

7

The Court expresses no opinion on the merits of Defendants’ Cross Motion for Summary
Judgment.
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NOTICE
FAILURE TO FILE WRITTEN OBJECTIONS TO THE PROPOSED FINDINGS,
CONCLUSIONS AND RECOMMENDATIONS CONTAINED IN THE FOREGOING
REPORT, WITHIN FOURTEEN DAYS OF SERVICE OF SAME, MAY BAR DE NOVO
DETERMINATION BY THE DISTRICT JUDGE OF AN ISSUE COVERED HEREIN
AND SHALL BAR APPELLATE REVIEW, EXCEPT UPON GROUNDS OF PLAIN
ERROR, OF ANY UNOBJECTED-TO PROPOSED FACTUAL FINDINGS AND LEGAL
CONCLUSIONS AS MAY BE ACCEPTED OR ADOPTED BY THE DISTRICT COURT.

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