Brown v. Catella et al

Filing 47

ORDER granting 46 Motion to Dismiss as to their Individual Capacities; Trevor Carbo and John O'Connor. Plaintiff may amend his claims against these defendants on or before 8/16/2010. Failure to file a timely amended complaint will result in the dismissal of this case with prejudice. All claims against defendants Catella and Birmingham are dismissed. Signed by Judge J. Garvan Murtha on 7/26/2010. (kak)

Brown v. Catella et al

Doc. 47

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF VERMONT Joseph Brown, Plaintiff, v. Joshua Catella, Matthew Birmingham, Trevor Carbo, and John O'Connor, Defendants. : : : : : : : : :

File No. 1:08-cv-00201-jgm

OPINION AND ORDER (Doc. 46) Plaintiff Joseph Brown, proceeding pro se, brings this civil rights action pursuant to 42 U.S.C. § 1983. Brown claims that

while being arrested in 2006, he was subjected to threats, verbal harassment and abuse by the arresting officers. A motion to

dismiss defendants Joshua Catella and Matthew Birmingham was granted previously. A motion to dismiss official capacity claims

seeking damages against defendants Trevor Carbo and John O'Connor was also granted. Now pending before the Court is a motion to dismiss the individual capacity claims being brought against Carbo and O'Connor. The motion is unopposed. For the reasons set forth

below, the motion to dismiss is GRANTED with leave to amend. Factual Background For the limited purpose of addressing the motion to dismiss, the facts alleged in the complaint will be accepted as true.

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Dockets.Justia.com

These facts have been set forth in prior Orders of the Court, and are largely repeated here. At approximately 4:00 p.m. on July 28, 2006, four members of the Vermont Drug Enforcement Task Force ("VTDF") arrested Brown in a parking lot in Barre, Vermont. The complaint claims that

"[m]embers of the VDTF team rushed plaintiff's vehicle with their guns drawn wearing black uniforms while donning masks that hid their facial identities . . . ." In "the heat of plaintiff's

arrest," Brown was allegedly "called a `nigger' by one of the arresting officers." The officer also called him "an `asshole'"

and made reference to having "his `f-ing' brains blown out." Brown further alleges that he "received minor cuts and abrasions as a result of being thrown out of his vehicle at gunpoint." (Paper 5 at 3-4). Brown initially suspected that it was defendant O'Connor who made the offensive statements. He based his suspicion upon

O'Connor's alleged history of "misconduct allegations of racial profiling charges and allegations of racial discrimination towards African-Americans . . . ." Id. at 6. John O'Connor of

the South Burlington Police Department was served, and soon thereafter moved for summary judgment on the ground that he was not involved in Brown's arrest. The Court subsequently determined that service upon Officer O'Connor was simply a matter of mistaken identity, as there is

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also a DEA agent named John O'Connor in the Burlington area. DEA agent has now been served, and Brown has conceded that the

The

current defendant "may not be the same racist John O'Connor w h o has had many racial problems when arresting AfricanAmericans." (Doc. 36 at 1). The Court takes judicial

n o t i c e of the fact that Officer O'Connor of the South B u r l i n g t o n Police Department was involved in a federal civil c a s e in which he was accused of racial profiling. v . O'Connor, File No. 2:05-CV-279. Diamond

Brown has not amended his

complaint to bring allegations specific to DEA Agent O'Connor. Brown's criminal case, in which he was charged with drugrelated offenses, went to trial on February 17, 2009. States v. Lavandier, et al., File No. 2:06-CR-82. United

On February

18, 2009, he entered into a Plea Agreement with the government and pleaded guilty to one count of possession with intent to distribute cocaine. On May 22, 2009, Chief Judge Sessions

sentenced Brown to time served followed by three years of supervised release. Discussion I. Untimely Service In their motion to dismiss, defendants Carbo and O'Connor first argue that they were not served in a timely manner. The

complaint was filed in September 2008, and these defendants were not served until January 2010. As noted above, initially the 3

wrong John O'Connor was served, and that had to be rectified. is not clear why service upon Carbo was delayed.

It

The defendants

concede that Carbo and O'Connor have now been served. Federal Rule of Civil Procedure 4(m) provides that "[i]f a defendant is not served within 120 days after the complaint is filed, the court - on motion or on its own after notice to the plaintiff - must dismiss the action without prejudice against that defendant or order that service be made within a specified time." Fed. R. Civ. P. 4(m). "But if the plaintiff shows good

cause for the failure" to serve, the district court is required to grant an "appropriate" extension of time. Id. District

courts also have discretion to enlarge the 120-day period in the absence of good cause. 192, 196 (2d Cir. 2007). Brown was incarcerated when he filed his complaint. The See Zapata v. City of New York, 502 F.3d

Second Circuit has held that a pro se prisoner proceeding in forma pauperis is "entitled to rely on service by the U.S. Marshals." Romandette v. Weetabix Co., Inc., 807 F.2d 309, While pro se plaintiffs are required to

3 1 1 (2d Cir. 1986).

p r o v i d e the Marshals Service with information necessary to i d e n t i f y defendants, see Sellers v. United States, 902 F.2d 5 9 8 , 602 (7 t h Cir. 1990), there is no claim here that B r o w n ' s information was lacking in this regard once the m i s t a k e about O'Connor was cured. 4 Furthermore, the fact

t h a t Brown was not incarcerated for the entire time that s e r v i c e was being attempted does not make his reliance upon t h e Marshals unreasonable. See, e.g., Jaiyeola v. Carrier Accordingly,

C o r p . , 242 F.R.D. 190, 192 (N.D.N.Y. 2007).

t h e responsibility for timely service rested "with the M a r s h a l s Service, not with [the plaintiff]." Muhammed v.

C o u g h l i n , 1994 WL 68168, at *3 (S.D.N.Y. Mar. 1, 1994); see a l s o Sidney v. Wilson, 228 F.R.D. 517, 523-24 (S.D.N.Y. 2005). " [ C ] o u r t s have uniformly held that the Marshals' f a i l u r e to effect service automatically constitutes good c a u s e within the meaning of [Fed. R. Civ. P.] 4(m)." Micolo

v . Brennan, 2009 WL 742729, at *7 (E.D.N.Y. March 18, 2009). Accordingly, the Court declines to dismiss this case on the b a s i s of untimely service, and the defendants' motion to d i s m i s s on this ground is DENIED. II. Construing the Complaint T h e defendants next argue that Brown's claims under 42 U . S . C . § 1983 are misplaced because he is suing federal agents. Section 1983 does not apply to suits against Dotson v. Griesa, 398 F.3d 156, 162 (2d

f e d e r a l officials.

C i r . 2005) (citing Kingsley v. Bureau of Prisons, 937 F.2d

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2 6 , 30 n.4 (2d Cir. 1991)).

Nonetheless, the Court has

p r e v i o u s l y stated that because Brown is proceeding pro se, i t will construe his claims against the defendants as b r o u g h t pursuant to § 1983's federal counterpart, Bivens v. S i x Unknown Named Agents, 403 U.S. 388 (1971). (Doc. 41 at

3 n.1); see Sutera v. Transp. Sec. Admin., 2010 WL 1729095, a t *3 (E.D.N.Y. Apr. 29, 2010) ("[t]he court may construe s e c t i o n 1983 claims against federal actors based on the t h e o r y of Bivens . . .") (citing Cuoco v. Moritsugu, 222 F . 3 d 99, 105 (2d Cir. 2000)). The Court will continue to

c o n s t r u e the complaint as a Bivens action, and will not d i s m i s s on the ground that Brown has instead cited § 1983. III. Motion to Dismiss Defendants Carbo and O'Connor also move to dismiss the complaint pursuant to Fed. R. Civ. P. 12(b)(6), arguing that Brown's pleading does not satisfy the requirements of Fed. R. Civ. P. 8. When presented with a motion to dismiss, the Court

must accept all factual allegations in the complaint as true and draw all reasonable inferences in Brown's favor. ATSI Commc'ns, That

Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). said, the rule that all facts must be accepted as true "is inapplicable to legal conclusions." Ct. 1937, 1949 (2009).

Ashcroft v. Iqbal, 129 S.

Furthermore, "[t]hreadbare recitals of

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the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

Indeed, the Supreme Court has held that a complaint's allegations "must be enough to raise a right to relief above the speculative level." 544, 555 (2007). Bell Atlantic Corp. v. Twombly, 550 U.S.

Thus, Brown must allege "enough facts to state Id. at 570.

a claim to relief that is plausible on its face."

If Brown "[has] not nudged [his] claims across the line from conceivable to plausible, [the] complaint must be dismissed." Id. The "plausibility" standard does not alter the Court's

l o n g s t a n d i n g practice of construing pro se complaints liberally. 2009). T h e defendants first argue that Brown's claims "lack f a c i a l plausibility." (Doc. 46 at 9). With respect to See Harris v. Mills, 572 F.3d 66, 72 (2d Cir.

d e f e n d a n t Carbo, Brown accuses him of having participated in t h e 2006 arrest. Brown also suggests that Carbo had

s u p e r v i s o r y duties, alleging that Carbo failed to "set up p o l i c i e s to help guide subordinates' conduct so that v i o l a t i o n s of plaintiff's constitutional and statutory r i g h t s did not occur as they did." (Doc. 5 at 5). Brown

f u r t h e r alleges that Carbo knew of O'Connor's alleged "past m i s c o n d u c t . . . towards African-Americans, but failed to

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t a k e appropriate action to remedy it, to investigate it, and t o correct it, preventing it from happening or recurring again." Id. at 6. Again, it is not clear that these

a l l e g a t i o n s with regard to O'Connor pertain to O'Connor the D E A Agent, or to O'Connor the South Burlington Police Officer. As to claims brought again O'Connor himself, he is a c c u s e d of having participated in Brown's arrest and of h a v i n g used a racial epithet. (Doc. 5 at 5) ("O'Connor . .

. acted in such a way that shocked the conscience by calling p l a i n t i f f , to wit, a `nigger' [] during plaintiff's arrest."). The Court will first address Brown's claims that the d e f e n d a n t s were personally involved in his arrest, and then p r o c e e d to claims of supervisor liability being brought a g a i n s t Carbo. A. D i r e c t Involvement

Giving the complaint the required liberal reading, the allegation that each of the defendants was masked means that either O'Connor or Carbo might have used a racial epithet and abusive language. The first question before the Court is

whether, assuming the truth of the allegations, the use of such

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words in the heat of a drug-related arrest violated Brown's constitutional rights. As the Court has noted previously in this case, the crux of Brown's complaint is that the defendants committed a "hate crime." Brown makes passing reference to having received "minor

cuts and abrasions," but his primary claim is summarized in the complaint as follows: The officer(s) who called plaintiff a nigger demonstrated the behavior that was maliciously and sadistically used for the very purpose of causing harm. As to call someone a "nigger" is clearly indicative of a hate crime. This behavior was outrageous, unprofessional, intentional and violated plaintiff's Fifth, Eighth and Fourteenth Amendments [sic] of the United States Constitution and Civil Rights of plaintiff protected by statute 18 U.S.C. § 242. (Paper 5 at 6); see also id. at 3 ("This is a hate crime as the plaintiff experience[d] racial indifference, discrimination, prejudice, libel and slander at the hands of the defendants . . . ."). Courts have held that the use of offensive or abusive language generally does not violate an arrestee's constitutional rights. See, e.g., Miro v. City of New York, 2002 WL 1163580, at

*5 (S.D.N.Y. June 3, 2002) ("An arresting officer's use of racial epithets does not constitute a basis for a § 1983 claim."); Harris v. Keane, 962 F. Supp. 397, 406 (S.D.N.Y. 1997); Patton v. Przybylski, 1986 WL 6088, at *2 (N.D. Ill. May 15, 1986)(claim of verbal abuse by police officers who allegedly made derogatory and

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insulting racial comments during arrest does not rise to the level of a constitutional deprivation), aff'd, 822 F.2d 697 (7th Cir. 1987); Keyes v. City of Albany, 594 F. Supp. 1147, 1155 (N.D.N.Y. 1984). "Only in rare circumstances in which the

threats involved were `inspired by malice rather than merely careless or unwise zeal so that [they] amount to an abuse of official power that shocks the conscience' have courts recognized exceptions to this rule." Mroz v. City of Tonawanda, 999 F.

Supp. 436, 465 (W.D.N.Y. 1998) (quoting Beal v. City of New York, 1994 WL 163954, at *6 (S.D.N.Y. Apr. 22, 1994)); see also Hopson v. Fredericksen, 961 F.2d 1374, 1378-79 (8th Cir. 1992) (verbal threats do not amount to constitutional violations unless they rise to the level of "brutal and wanton act of cruelty"). Here, there is no suggestion that Carbo acted with malice toward Brown. As to O'Connor, the initial claim was that he had Based upon this

acted in a discriminatory manner in the past.

allegation, the complaint invites an inference that O'Connor acted with malice during Brown's arrest. Brown has since

acknowledged, and the Court's records suggest, that those allegations of past conduct likely pertained to John O'Connor the police officer, and not John O'Connor the DEA agent. 1-2). (Doc. 36 at

Absent facts pertaining to John O'Connor of the DEA, there

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is no support for a claim that he acted with any form of malice.1 Without such an allegation, "the use of vile and abusive language, no matter how abhorrent or reprehensible, cannot form the basis for a [constitutional] claim." 1155. Furthermore, several courts have required associated physical harm before finding a constitutional violation. See, Keyes, 549 F. Supp. at

e.g., Brown v. Croce, 967 F. Supp. 101, 104 (S.D.N.Y. 1997) (racial slur and two slaps to face did not violate constitutional rights); cf. McCann v. Coughlin, 698 F.2d 112, 126 (2d Cir. 1983) (claim that prison guard called plaintiff names did not allege any appreciable injury and was properly dismissed). Brown admits

in his complaint that his injuries were minor, and that they were the result of his removal from a vehicle by police. This type of

incidental injury, even when linked to the alleged racial and threatening statements, does not support a valid claim. Cf.

Williams v. City of New York, 2007 WL 2214390, at *12 (S.D.N.Y. July 26, 2007) (characterizing similar injuries as "de minimis"). The complaint makes reference to due process violations, and as the defendants properly note, Brown's reference to a "shock the conscience" standard implies a substantive due process claim. See County of Sacramento v. Lewis, 523 U.S. 833, 846 (1998).

As discussed below, the Court will allow Brown time in which to amend his complaint to set forth facts that pertain to DEA Agent O'Connor. 11

1

"Substantive due process protects against government conduct that deprives people of protected rights and truly `shocks the conscience'. . . ." Phillips v. DeAngelis, 571 F. Supp. 2d 347, The

358 (N.D.N.Y. 2008) (quoting Lewis, 523 U.S. at 846).

Supreme Court has determined that substantive due process protects against only "the most egregious official conduct." Lewis, 523 U.S. at 846. Several circuit courts have held that verbal threats and harassment by a government official do not generally violate substantive due process. King v. Olmsted County, 117 F.3d 1065,

1067 (8th Cir. 1997); Robertson v. Plano City, 70 F.3d 21, 24 (5th Cir. 1995); Pittsley v. Warish, 927 F.2d 3, 7 (1st Cir. 1991). As one district court recently concluded, "[i]n light of

this caselaw treating verbal abuse, even vile language and racial epithets, as insufficient to constitute a constitutional violation . . . it appears that the alleged conduct by the

[arresting officer] falls into the category of misconduct for which there is no available constitutional remedy." Woods v.

Valentino, 511 F. Supp. 2d 1263, 1285 (M.D. Fla. 2007) (concluding that plaintiff might have a tort claim). In addition to their claim of inadequate pleading under Rule 8, the defendants argue that they are entitled to qualified immunity. Qualified immunity is an affirmative defense designed

to protect public officials "not just from liability but also

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from suit . . . thereby sparing [them] the necessity of defending by submitting to discovery on the merits or undergoing a trial." X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 65 (2d Cir. 1999). Government officials are entitled to qualified immunity "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). "A

police officer who has an objectively reasonable belief that his actions are lawful is entitled to qualified immunity." Okin v.

Village of Cornwall-On-Hudson Police Dep't, 577 F.3d 415, 433 (2d Cir.2009). Given the state of the law in this area, it cannot be said that the defendants violated Brown's clearly established constitutional right to substantive due process. Indeed, the

case law indicates the unwillingness of courts across the country to find a due process violation where an arresting officer, or other public official, uses offensive or threatening language. Accordingly, this Court finds that the defendants are entitled to qualified immunity on the substantive due process claim. Brown also claims that his equal protection rights were violated. The facts alleged in the complaint are again The Equal Protection

insufficient to support such a claim.

Clause of the Fourteenth Amendment guarantees individuals the right not to be treated differently than others who are similarly

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situated.

See, e.g., Vill. of Willowbrook v. Olech, 528 U.S. In order to state an equal protection claim,

562, 564 (2000).

Brown must "allege that a government actor intentionally discriminated against him on the basis of his race." Brown v.

City of Oneonta, 221 F.3d 329, 337 (2d Cir.2000), cert. denied, 534 U.S. 816 (2001). He must also allege "the existence of a

similarly situated group of non-minority individuals that were treated differently[.]" Id.

Even assuming that the allegations against defendant O'Connor are still valid, and that there is factual support for a claim of intentional discrimination, Brown does not allege that he was treated differently from others similarly situated. equal protection claim thus fails as a matter of law. His

See also

W i l l i a m s v. Bramer, 180 F.3d 699, 706 (5th Cir. 1999) ( h o l d i n g that officer's use of racial epithet in effecting a r r e s t will not, by itself, constitute equal protection violation).2 Finally, Brown brings claims under 18 U.S.C. § 242. It is well settled that 18 U.S.C. § 242 is a criminal s t a t u t e with no private right of action. See Robinson v.

O v e r s e a s Military Sales Corp., 21 F.3d 502, 511 (2d Cir.

Brown also brings claims under the Eighth Amendment. The Eighth Amendment, however, is only implicated after there has been an adjudication of guilt. See Bell v. Wolfish, 441 U.S. 520, 535, n.16 (1979). 14

2

1 9 9 4 ) ; Tarhaqa Allen v. New York City Police Dep't, 2010 WL 1 7 9 0 4 2 9 , at *5 (May 5, 2010); Joyner-El v. Giammarella, 2010 W L 1685957, at *3 (S.D.N.Y. Apr. 15, 2010); Dugar v. C o u g h l i n , 613 F. Supp. 849, 852 n.1 (S.D.N.Y. 1985). Brown's claims under that statute are therefore DISMISSED. B. S u p e r v i s o r Liability

A g a i n reading the complaint liberally, Brown may be a l l e g i n g that defendant Carbo is liable as a supervisor. In

A s h c r o f t v. Iqbal, the Supreme Court made clear that Bivens d o e s not impose supervisor liability on the basis of r e s p o n d e a t superior; rather, "a plaintiff must plead that e a c h Government-official defendant, through the official's o w n individual action, has violated the constitution." S . Ct. at 1948-49. Prior to Iqbal, the law in the Second Circuit was that a supervisor could only be held liable if the plaintiff d e m o n s t r a t e d that he had 1) directly participated in the challenged conduct; 2) failed to remedy the violation after learning of it through a report or appeal; 3) created or allowed to continue a policy or custom under which unconstitutional practices occurred; 4) was grossly negligent in managing the subordinate who caused the unlawful event; or 5) failed to act on information indicating that unconstitutional acts were occurring. 15 129

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see Ajaj v. MacKechnie, 2008 WL 3166659, at *5 (S.D.N.Y. Aug. 5, 2008) (applying Colon factors in Bivens action). District Courts in

t h i s circuit are divided as to whether all of the Colon f a c t o r s survived the Supreme Court's ruling in Iqbal. See

R a h m a n v. Fischer, 2010 WL 1063835, at *4 (S.D.N.Y. March 2 2 , 2010) (collecting cases); Sash v. United States, 674 F. S u p p . 2d 531, 543-44 (S.D.N.Y. 2009) (same). A s s u m i n g that all of the Colon categories are still v a l i d , the complaint nonetheless fails to provide sufficient f a c t s for a claim of supervisor liability. First, there is

n o allegation that Carbo, as a supervisor, had direct c o n t r o l over O'Connor during the arrest. In fact, the

c o m p l a i n t suggests that defendants Catella and Birmingham w e r e the supervisors, and that Carbo operated under their command. (Doc. 5 at 5) ("[Carbo] was under the supervision

a n d direction of the above-mentioned defendants . . . ."). Nor does Brown specifically allege that Carbo, as a m e m b e r of the VDTF, was responsible for O'Connor's training. Instead, the complaint offers general and conclusory a l l e g a t i o n s about a failure to develop "policies to help g u i d e subordinates." Moreover, there is no claim that a DEA

o r VDTF policy allowed O'Connor to act as he did. 16

A s s u m i n g that Carbo was a supervisor, it could be a r g u e d that the fourth and fifth Colon factors apply, n a m e l y , that Carbo was aware of past unconstitutional c o n d u c t and was grossly negligent in managing a subordinate. The third prong may also be involved, as courts have held t h a t "[a] policy or custom may be inferred from acts or o m i s s i o n s of supervisory officials serious enough to amount t o gross negligence or deliberate indifference to the c o n s t i t u t i o n a l rights of the plaintiff." Eng v. Coughlin,

6 8 4 F. Supp. 56, 65 (S.D.N.Y. 1988); Vann v. City of New Y o r k , 72 F.3d 1040, 1049 (2d Cir. 1995) ("deliberate i n d i f f e r e n c e may be inferred if the complaints are followed b y no meaningful attempt on the part of the municipality to investigate"). T h e Second Circuit has defined gross negligence as "an i n d i f f e r e n c e to present legal duty and utter forgetfulness o f legal obligations." Doe v. New York City Dep't of Soc. Thus,

S e r v s . , 649 F.2d 134, 143 n.4 (2d Cir. 1981).

d e f e n d a n t s are grossly negligent when they "[have] reason to k n o w of facts creating a high degree of risk of physical h a r m to another and deliberately [act] or [fail] to act in c o n s c i o u s disregard or indifference to that risk." Poe v.

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L e o n a r d , 282 F.3d 123, 140, 145 (2d Cir. 2002) (dismissing c l a i m against state trooper's former supervisor on grounds o f qualified immunity). Here, the facts in the complaint do not suggest that C a r b o should have believed that there was a "high degree of r i s k " that John O'Connor the DEA agent would violate the c o n s t i t u t i o n a l rights of a suspect during a drug-related arrest. Furthermore, for the reasons discussed above, the

f a c t s alleged in the complaint do not state a claim of u n c o n s t i t u t i o n a l conduct. Therefore, even if the Court

a s s u m e s that Carbo had some supervisory responsibility with r e s p e c t to O'Connor's training and his behavior during the a r r e s t , the complaint does not set forth a valid claim of s u p e r v i s o r liability. IV. Leave to Amend W h e n a complaint has been filed pro se, district courts " g e n e r a l l y should not dismiss without granting leave to a m e n d at least once when a liberal reading of the complaint g i v e s any indication that a valid claim might be stated." Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). When

t h e Court granted the motion to dismiss defendants Catella a n d Birmingham from the case, it allowed Brown time in which

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t o amend his claims against these defendants, concluding t h a t "with additional factual support, he may have a valid claim." (Doc. 33 at 8). The deadline for amending those

c l a i m s has now passed, and no amended complaint has been filed. The Court warned that a failure to file a timely

a m e n d e d complaint "will result in the dismissal of all c l a i m s against Catella and Birmingham." Id. at 15.

Consequently, the claims against Catella and Birmingham are h e r e b y DISMISSED. W i t h respect to Carbo and O'Connor, the Court again f i n d s that with additional factual support, particularly w i t h respect to O'Connor the DEA agent, Brown may be able to s t a t e a valid claim. Accordingly, leave to amend is

G R A N T E D , and Brown may filed an amended complaint on or b e f o r e August 13, 2010. Failure to file a timely amended

c o m p l a i n t will result in dismissal of all claims against the r e m a i n i n g defendants, Carbo and O'Connor, with prejudice. Conclusion F o r the reasons set forth above, the motion to dismiss t h e claims brought against defendants Carbo and O'Connor in t h e i r individual capacities (Doc. 46) is GRANTED. Brown may

a m e n d his claims against these defendants on or before

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A u g u s t 16, 2010.

Failure to file a timely amended complaint

w i l l result in the dismissal of this case with prejudice. A l l claims against defendants Catella and Birmingham a r e DISMISSED. SO ORDERED. D a t e d at Brattleboro, in the District of Vermont, this 2 6 t h day of July, 2010.

/ s / J. Garvan Murtha Honorable J. Garvan Murtha S e n i o r United States District Judge

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