TONYA LONGMIRE, ADMINISTRATOR OF THE ESTATE OF DAIYAAN QAMAR LONGMIRE, DECEASED v. VIRGINIA DEPARTMENT OF CORRECTIONS et al
OPINION & ORDER entered 11/29/17 and filed 11/30/17 DENYING Defendants Chance McCoole's ("McCoole's") and Lakeia Smallwood's ("Smallwood's") (collectively, "Defendants'") 118 Moti on for Summary Judgment, as outlined. Because the Court is denying the Motion, the Court also WAIVES any further briefing on the related 145 Motion for Leave to Supplement, and DENIES that Motion for Leave AS MOOT. (See Order for Specifics) (Signed by District Judge Henry C. Morgan, Jr. on 11/29/17). Copies provided as directed 11/30/17. (ecav, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
ADMINISTRATOR of the ESTATE of
DAI'YAAN QAMAR LONGMIRE, DECEASED,
Civil Action No. 2:16cv653
CHANCE MCCOOLE and
OPINION & ORDER
This matter came before the Court pursuant to Defendants Chance McCoole's
("McCoole's") and Lakeia Smallwood's ("Smallwood's") (collectively, "Defendants'") Motion
for Summary Judgment ("Motion"). Doc. 118. At a hearing on November 28, 2017, the Court
DENIED the Motion, and it now issues this Opinion & Order further explaining the reasoning
for its decision.
Plaintiff Tonya Longmire, Administrator of the Estate of Dai'yaan Qamar Longmire ("D.
Longmire"), Deceased ("Plaintiff' or "Longmire") filed her Complaint in this Court on
November 7, 2016.
Doc. 1. ("Compl.") Defendants filed an answer, Doc. 27, and a Motion
to Dismiss, Doc. 28, on December 29, 2016. Plaintiff filed an Amended Complaint on January
23, 2017, Doc. 35, and Defendants responded with a Motion to Strike on February 13, 2017,
The Court GRANTED the Motion to Dismiss WITH LEAVE TO AMEND and
GRANTED the Motion to Strike. Doc. 51.
Plaintiff filed her Second Amended Complaint on April 17,2017. Doc. 52 ("Second Am.
Compl."). Defendants filed a Motion to Dismiss on May 5, 2017. Doc. 55. The Parties
stipulated to the dismissal of many Defendants. Docs. 88, 89. The Court DISMISSED the Third
Claim for Relief and DISMISSED all Defendants except Smallwood, McCoole, and the Virginia
Department of Corrections ("VDOC") but took the remainder of the Motion to Dismiss UNDER
Doc. 98. The Court also ORDERED Plaintiff to file reports cited in the
After receiving the reports cited in the Complaint, Defendants filed a
supplemental memorandum in support of their Motion to Dismiss seeking dismissal of VDOC.
Doc. 114. The Court GRANTED the Motion to Dismiss, DISMISSING the First and Fourth
Claims for Relief, which were against Defendant VDOC. Doc. 116.
The remaining claim against Defendants McCoole and Smallwood alleges a violation of
42 U.S.C. § 1983 consisting of "Deliberate Indifference to Serious Medical Needs in Violation
of the Eighth Amendment." Second Am. Compl. 1^1123-129. Defendants filed the instant
Motion for Summary Judgment on November 1, 2017.
Doc. 118. Plaintiff responded in
opposition on November 15, 2017. Doc. 132. Defendants replied on November 20,2017. Doc.
Below are Defendants' facts that are uncontested in Plaintiffs brief:
1. On June I, 2013, Longmire was charged with presenting a false identity to law
enforcement, resisting arrest, and assault on law enforcement. On October 6,
2013, Longmire was charged with assault on law enforcement, grand larceny,
conspiring to commit larceny, and burglary. (Ex.1, Criminal Record)
2. Longmire, age 19, was detained at the Virginia Beach Correctional Center
C'VBCC) from October 7, 2013 to May 23, 2014. On May 5, 2014, Longmire
was sentenced to four years in prison. He was classified as a "Youthful Offender"
and on May 23, 2014 was transferred from VBCC to Indian Creek Correctional
Center ("ICCC"). (Ex. 2, Sentencing Order 5/23/14)
3. ICCC is a "therapeutic community" described in the Inmate Orientation
Manual as "an intensive residential treatment program ... designed and structured
to promote change through social learning. Substance abuse and addiction are
addressed, but the behaviors, attitudes, values and emotions of every member are
also constantly monitored. The TC is designed to challenge and replace negative
behaviors with new, pro-social attitudes, values and behaviors." (Ex. 3,
Doc. 119 at 1-2.
5. Employing VDOC OP 730.2, Mental Health Services: Screening, Assessment,
and Classification, which "establishes a standard protocol for the screening,
assessment, and determination of the mental health status and mental health
services needs of offenders incarcerated in Department of Corrections facilities,"
Dr. [James] Brockington[, ICCC's Qualified Mental Health Professional
("QMHP")] classified Longmire as MH-0. The classification "MH-0 No Mental
Health Services Needs" is described as follows:
The offender has no documented history of mental health treatment
within the past two years (this does not include treatment for
alcohol or substance abuse alone, nor for evaluation purposes
alone). There is no documented or reported behavior that currently
indicates any mental health services needs. No monitoring or
treatment by a QMHP is currently required.
Dr. Brockington did not place any mental health restrictions on Longmire's
housing or job assignment. (Ex. 6, VDOC OP 730.2; Ex. 7, Mental Health
6. Because of HIPAA, correctional officers at ICCC are not privy to inmates'
medical or mental health records. They can only access inmates' mental health
classifications. (Ex. 8, Rick White Aff; Ex. 9, Smallwood Dep. pp. 147-48)
7. For approximately four and one-half months, from his incarceration in May
until October 4, 2014, Longmire was housed in the general population at ICCC.
(Ex. 10, ICCC Discharge Summary)
8. On July 22, 2014, Longmire was charged with being in an unauthorized area.
He was initially found guilty and penalized 10 days' loss of visitation. Longmire
appealed the determination. Warden Keeling overturned the conviction and the
charge was expunged fi-om Longmire's record. (Ex. 11, Disciplinary Appeal letter
9. During his time in the general population Longmire was approved for various
work assignments, including in the kitchen. (Ex. 12, Coris Work Assignments)
10. On September 25, 2014, Longmire was denied parole. (Ex. 13, Parole Board
11. On October 5,2014, Longmire was charged with aiding and abettingthe theft
of an inmate's canteen. Pursuant to VDOC OP 861.1, Offender Discipline,
Institutions, he was placed on pre-hearing detention status and transferred to
Housing Unit 7B, administrative segregation, to await his hearing. (Ex. 14,
VDOC OP 861.1; Ex. 15, Electronic Detention Notice 10/5/14)
12. At the October 9, 2014 disciplinary hearing, Longmire was found guilty by
the hearing officer and fined $12.00. Longmire appealed the decision to Warden
Keeling who on October 27, 2014 decided that the charge should be reheard and
the results of the initial hearing be expunged from Longmire's record. (Ex. 16,
13. On November 4, 2014, Longmire's disciplinary charge was reheard and he
was fined $12.00. (Ex. 17, Disciplinary Record)
14. Housing Lfnit 7A is a modified general population housing unit used to
transition inmates from administrative segregation back to the general population.
Housing Unit 7A has additional mandatory counseling programs related to the
therapeutic community and is more restricted than general population housing
units but has fewer restrictions than Housing Unit 7B. (Ex. 8, Wck White Aff.)
15. Longmire was moved from pre-hearing detention in Housing Unit 7B to
Housing Unit 7A on October 14, 2014, for refresher therapeutic community
training and for staff to make a decision regarding whether he would return to
regular programming or be removed from the program. These decisions are
similar for all inmates who are released from administrative segregation. (Ex. 8,
Rick White Aff.)
16. On October 27, 2014, Longmire was observed yelling profanities at a
corrections officer and was advised if the behavior continued he would be given
an institutional charge for vulgar language. (Ex. 8, White Aff.)
17. On October 28, 2014, Longmire submitted the paperwork necessary to be
considered for release back to the general population and to regular programming.
Because he was seen and heard being loud, at times argumentative, and constantly
being redirected for side-chatter and grooming non-compliance, release from
Housing Unit 7A was not recommended. (Ex. 8, White Aff)
18. On November 8, 2014, at approximately 7:49 a.m., Longmire was charged
with simple assault upon a non-offender. Officer Smallwood had noticed that
Longmire's cell was in disarray, had trash all over the floor, and that his
footlocker was unsecured. She told Longmire he needed to get his cell into
compliance and escorted Longmire to his cell. Longmire stepped inside, and as
Smallwood began closing the cell door, Longmire resisted by pushing the door
back toward Smallwood. His action caused the door to hit Smallwood's right
hand and jam her wrist. (Ex. 18, Disciplinary Offense Report)
19. Officer Smallwood reported this incident to the watch commander, who
authorized her to write Longmire up for simple assault. Per VDOC OP 861.1,
Offender Discipline, Institutions, Sgt. McCoole, Officer Smallwood's direct
supervisor, prepared the final Disciplinary Offense Report, set a disciplinary
hearing for November 13, 2014, and proposed a penalty of 30 days' disciplinary
segregation. (Ex. 9, Smallwood Dep., p. 58-59; Ex. 18, Disciplinary Offense
Id. at 2-5.
21. Along with other officers, Sgt. McCoole moved Longmire from Housing Unit
7A to Housing Unit 7B. During the transfer, Sgt. McCoole did not observe any
signs that Longmire was a suicide risk and Longmire did not express any suicidal
ideations. (Ex. 19, McCoole Dep., p. 11-15)
Id. at 5.
25. As per policy, Sgt. McCoole checked Longmire's Mental Health classification
and determined that he was MH-0, indicating that Longmire had no identified
mental health problems and thus was to be screened within one working day after
being placed in pre-hearing detention. (Ex. 19, McCoole Dep., p. 39)
26. As per policy, Sgt. McCoole sent an Electronic Detention Notice ("EDN")
indicating that Longmire's housing assignment was changed fi-om Housing Unit
7A to Housing Unit 7B for pre-hearing detention pending the assault charge.
EDNs are distributed to and notify various ICCC administrators, including the
psychologist that an inmate has been placed in pre-hearing detention and needs to
be screened by a QMHP. (Ex. 19. McCoole Dep., p. 31-32)
27. Longmire refused two meals on November 8,2014. (Ex. 20, Log)
28. At approximately 5:30 p.m. on November 8, 2014, Officer Smallwood, while
performing a routine security check, observed Longmire hanging from a sheet.
She called a medical emergency and notified Sgt. McCoole. Officer Smallwood
and Sgt. McCoole were unable to cut the sheet due to its thickness and had to
untie it by hand. After placing Longmire on the floor, they began CPR, and were
then assisted by other correctional supervisors and officers, until medical arrived
and took over. Despite the efforts, Longmire could not be revived. (Ex. 23,
29. EMS responded to ICCC and pronounced Longmire deceased at 5:47 p.m.
(Ex. 24, EMS Record)
14 at 6-7.
The primary substantive dispute is about what Smallwood and McCoole heard and saw
about D. Longmire. Regarding Smallwood, Defendants state as follows:
23. Deputy Smallwood performed security checks on Housing Unit 7B
throughout the afternoon of November 8, 2014, including those between 4 p.m.
and 5:30 p.m. Deputy Smallwood did not observe any physical or emotional signs
that Longmire was suicidal, nor did she overhear Longmire state that he was
going to hurt himself. Further, no other inmate told her that he was suicidal or was
going to hurt himself. (Ex. 20, Log; Ex. 9, Smallwood Dep., pp. 14, 17, 142, 14547)
Doc. 119 at 23. Plaintiff observes that Smallwood logged a security check at 12:55 PM and
testified at her deposition that she performed that check, but a review of the video shows that she
never actually performed that check. ^
Doc. 132 at 14 (citing Ex. 16 at 7; Ex. 4 ("Smallwood
Dep. Tr.") at 73:14-22; 75:6-77:20). Plaintiff also summarizes the testimony of Joseph Carroll
("Carroll"), an inmate in a cell next to D. Longmire, regarding a suicide threat that she alleges
Joseph Carroll was in the cell next to Longmire the entire day. Carroll confirms
Longmire was screaming, hollering, and crying throughout the day. (Carroll Aff,
1115-29; Carroll Dep. at 116:11-14, 118:8-24, 139:19-140:16.) At just before
5:00pm, Smallwood came by the cells to make her check. (Carroll Aff. at 11 41.)
Longmire's cell was in disarray. (See Exhibit 15; Smallwood Dep. 96:8-97:6,
103:21-24.) As Smallwood was at Longmire's cell, he loudly yelled, "1 feel like
I'm going fucking nuts. I feel like I'm going to fucking hurt myself." (Carroll
Aff. at If 41-44; Carroll Dep. at 143:8-9.) In a sarcastic tone, Smallwood
acknowledged Longmire's statement and said, "mmm hmm." (Carroll Aff. at H
45-47.) She walked away and left the unit.
Doc. 132 at 14 (emphasis in original).
Regarding McCoole, Defendants state as follows:
22. Sgt. McCoole made security checks in Housing Unit 7B at 11:20 a.m. and
12:11 p.m. and was in the unit at other times during the afternoon. He did not
observe any signs that Longmire was a suicide risk and did not hear Longmire
express any suicidal ideations. Nor did any other inmate indicate that Longmire
said he was going to hurt himself. (Ex. 20, Log; Ex. 19, McCoole Dep., pp. 13841)
Doc. 119 at 6. Plaintiff admits the two (2) security check times but otherwise disputes several
aspects of Defendants' account. Doc. 132 at 13-14. She notes that corrections officers are
trained that signs of suicide risk include
(a) "changes in typical behavior";
(b) "extreme mood swings,"
(c) "in ... emotional pain";
(d) "statements that an inmate makes about harming himself or future desires to
(e) changes in sleep patterns, eating habits, energy level and/or ability to
(f) setting affairs in order, e.g., "the offender may have stacks of letters in his/her
cell addressed to each family member";
(g) giving away possessions; and
(h) preoccupation with death, dying, or suicide.
Doc. 132 at 6 (citing Ex. 2 at 2199; Ex. 6 ("Halsey-Harris Dep. Tr.") at 50:4-15; 61:20-12). She
then observes that McCoole saw several of these signs with D. Longmire. Id at 10-12. Carroll
testified that D. Longmire "would go from silence to loud outbursts of anger and crying and
screaming" and that McCoole witnessed these outbursts.
Id at 10 (citing Ex. 12 ("Carroll
36-39). He further described that D. Longmire "repeatedly tried to assure McCoole
that he did not actually assault Smallwood and that he did not deserve the penalty against him."
Id. (citing same). Two "cadre inmates," role model inmates who assist with other inmates,
further testified about what McCoole saw. Id Jerome Thompson ("Thompson") advised that
McCoole told him and the other cadre inmate that D. Longmire had been screaming, yelling, and
banging in his cell all day. Id (citing Ex. 7 ("Thompson Decl.") ^ 26). When speaking with D.
Longmire, Thompson heard him scream "I'm gone," "I'm done with shit," "I'm outta here," and
"I just want to talk to my momma before I go," and tell Thompson to say goodbye to other
inmates on his behalf. Id at 11 (citing Thompson Decl.
29, 32, 33; Ex. 8 ("Thompson Dep.
Tr.") at 65:14-67:13). Thompson also testified that D. Longmire tried to hand Thompson his
mother's phone number on a piece of paper. Id (citing Thompson Dep. Tr. at 66:25-67:2).
Dean Stilke ("Stilke"), the other cadre inmate, stated that he saw and overheard some of the
outbursts and asked McCoole to help. Id (citing Ex. 11 ("Stilke Decl.") UK 44-46). He also
indicated that more than one of the outbursts involved D. Longmire yelling that he was going to
hurt himself. Id (citing Stilke Decl. H51). Plaintiff notes that both cadre inmates testified that
McCoole was present and refused to help and that video confirms his presence. Sm id (citing
Exs. 14, 16). In addition, Thompson indicated that McCoole was near D. Longmire's cell when
D. Longmire asked to call his mom, and video confirms that McCoole was there with a phone.
Id. (citing Thompson Decl.
33-34; Exs. 14, 16). Thompson also stated that McCoole forced
him and Stilke to leave the area. Id (citing Thompson Decl.
Beyond those two (2) key disputes, Plaintiff also disputed three (3) other facts on more
minor grounds. The first disputed fact states:
4. Dr. James Brockington, ICCC's Qualified Mental Health Professional
("QMHP"), assessed Longmire on May 23, 2014. Longmire denied current
mental health complaints, a history of suicide attempts, or current or ever
receiving mental health treatment. Longmire reported that he had been diagnosed
with bipolar disorder and depression at age 17 and said that his mood disorder
was caused by extreme anxiety. He indicated he had been prescribed Xanax in the
past; however, Xanax is not a treatment for bipolar disorder or depression. (Ex. 4,
Brockington Progress Note 5/23/14; Ex. 5, Expert Report of Dr. James Levenson,
Doc. 119 at 2. Plaintiff disputes that D. Longmire's mental health issues were not current, and
she further disputes the suggestion that he did not have bipolar disorder or depression. See Doc.
132 at 13. The second disputed fact states:
20. At approximately 10:45 a.m. Longmire was transferred from Housing Unit 7A
to Housing Unit 7B, for pre-hearing detention as per VDOC OP 861.1. (Ex. 14,
VDOC OP 861.1)
Doc. 119 at 5. Plaintiff notes that the video shows a time of 11:20 AM. Doc. 132 at 13 (citing
Ex. 16 at 2-3). The third disputed fact states;
24. Per VDOC OP 861.3, Special Housing, offenders placed in special housing,
including for pre-hearing detention, are screened by a QMHP either before their
placement or within one working day after placement in special housing so that
any "at risk" offenders may be identified. Offenders with "identified mental
health problems" placed in special housing are monitored per OP 730.5, Mental
Health Services: Suicide Prevention and Behavior Management and OP 720.1,
Access to Health Services. (Ex. 21, VDOC OP 861.3; Ex. 22, Blank DOC MH 14
- Mental Health Screening: Special Housing Assignment Form)
Doc. 119 at 6. Plaintiff responds to insist that the assigned mental health numerical code does
not end the obligation for Defendants to act if the observed potential suicide warning signs or
risk factors. Doc. 132 at 15.
Summary judgment under Rule 56 is appropriate only when the court, viewing the record
as a whole and in the light most favorable to the nonmoving party, determines that no genuine
issue of material fact exists and that the moving party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56; see, e.g.. Celotex Corp. v. Catrett. 477 U.S. 317, 322-24 (1986); Anderson v.
Liberty Lobby. Inc.. 477 U.S. 242, 248-50 (1986); Terry's Floor Fashions v. Burlington Indus..
763 F.2d 604, 610 (4th Cir. 1985). Once a party has properly filed evidence supporting the
motion for summary judgment, the nonmoving party may not rest upon mere allegations in the
pleadings but must instead set forth specific facts illustrating genuine issues for trial. Celotex.
477 U.S. at 322-24. Such facts must be presented in the form of exhibits and sworn affidavits.
Failure to rebut the motion with such evidence will result in summary judgment when
appropriate. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment. . .
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof at trial." Id.
A mere scintilla of evidence is insufficient to withstand a motion for summary judgment.
Rather, the evidence must be such that the factfmder reasonably could fmd for the nonmoving
Anderson. 477 U.S. at 252. Although the court must draw all justifiable inferences in
favor of the nonmoving party, in order to successfully defeat a motion for summary judgment, a
nonmoving party cannot rely on "mere belief or conjecture, or the allegations and denials
contained in his pleadings." Dovle v. Sentrv Ins.. 877 F. Supp. 1002, 1005 (E.D. Va. 1995)
(citing Celotex. 477 U.S. at 324).
The instant Motion seeks summary judgment on the issue of whether Defendants' actions
constitute deliberate indifference. A prison official violates the Eighth Amendment by failing to
prevent harm when two (2) requirements are met: the inmate "is incarcerated under conditions
posing a substantial risk of serious harm," and the prison official acts with "'deliberate
indifference' to inmate health or safety." Farmer v. Brennan. 511 U.S. 825, 834 (1994) (citations
Deliberate indifference is a state of mind greater than negligence but lesser than purpose.
Id at 836. "[T]he official must both be aware of facts fi-om which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference." Id at 837.
"'[T]he key to deliberate indifference in a prison suicide case is whether the defendants knew, or
reasonably should have known, of the detainee's suicidal tendencies.'" Gordon v. Kidd. 971
F.2d 1087, 1094 (4th Cir. 1992), as amended (July 7, 1992) (quoting Elliott v. Cheshire County.
940 F.2d 7, lO-11 (1st Cir. 1991)). In proving that a prison official drew the inference that his
actions were sufficient, a plaintiff cannot satisfy their burden merely by showing that the official
objectively should have known of the substantial risk, but proof that the risk was obvious is
sufficient for a reasonable factfinder to conclude that the official had actual knowledge of the
substantial risk. Heam v. Lancaster Ctv.. 566 F. App'x 231, 236 (4th Cir. 2014) (citations
omitted). An official also cannot escape liability by "merely refus[ing] to verify underlying facts
that he strongly suspected to be true." Id at 236 (citations omitted). If the official "had no
reason to suspect that the prisoner was a suicide risk," he is entitled to qualified immunity.
Gordon. 971 F.2d at 1094.
There are material facts in dispute as to whether Smallwood's conduct constitutes
deliberate indifference. An official who hears a specific suicide threat, is fully trained to take
appropriate actions, and takes no action in response, is the quintessential deliberately indifferent
officer. See Buffineton v. Baltimore Ctv.. Md.. 913 F.2d 113, 117-20 (4th Cir. 1990) (affirming
deliberate indifference conviction of two officials who knew that an inmate was suicidal and
took no action in response); see also Odom v. S.C. Dep't of Corr.. 349 F.3d 765, 771 (4th Cir.
2003) (affirming deliberate conviction of official who "was both aware of an excessive risk of
harm to [the inmate] and simply disregarded it"). None of Defendants' authority undermines
that basic rule. In Ward, the official was not aware of the risk of suicide because the three (3)
pieces of information he may have had — a scar on the inmate's wrist, a comment about giving
his bicycle to a deserving person, and alcoholism — did not amount to a suicide threat. See
Ward V. Holmes. 28 F.3d 1212, 1994 WL 313624 (4th Cir. 1994) (table decision). Similarly, in
Bovd. the information that the official may have had — that the inmate was weeping — did not
amount to a suicide threat. See Bovd v. Harper. 702 F. Supp. 578, 581 (E.D. Va. 1988). Bovd
also distinguishes its own facts from cases where the inmate "explicitly informed prison officials
of his or her intention to commit suicide." Id. (citing Danese v. Asman. 670 F.Supp. 709 (E.D.
Mich. 1987); Matie v. Leis. 571 F.Supp. 918 (S.D. Ohio 1983).
Defendants cite does involve an explicit suicide threat.
The closest authority
Estate of Cartwrieht v. City of
Concord. Cal.. 618 F. Supp. 722, 728 (N.D. Cal. 1985), affd, 856 F.2d 1437 (9th Cir. 1988).
The threat was made under the influence of drugs or alcohol, and the Court found that the
officials reasonably concluded that the threat was not serious.
id The key factual difference
is that the officials both (1) increased the frequency of their cell inspections and (2) had no
reason to believe that the intoxicated inmate was actually depressed or suicidal. See id Under
Cartwrieht. perhaps some minimal response to D. Longmire's suicide threat would have been
sufficient to avoid satislying the deliberate indifference standard. Because it is undisputed that
Smallwood took no action, though, the only issue left is whether she actually heard a threat
requiring action. Viewing that factual dispute in Plaintiffs favor, the Court DENIES summary
judgment as to Smallwood.
A reasonable jury could also find that McCoole's conduct is deliberate indifference. At
least one (1) of the three (3) inmates, Stilke, stated that McCoole heard threats of self-harm.
Defendants contest the accuracy of that statement, but because the Court must view all
evidentiary disputes in Plaintiffs favor at this stage, the Court DENIES summaryjudgment as to
Defendants argue that their conduct was negligence at worst and that they are entitled to
qualified immunity. Doc. 119 at 11-15. Plaintiffs view of the facts arguably establishes
deliberate indifference, and the Court cannot find as a matter of law at this stage that the conduct
was only negligent. The qualified immunity argument is based only on the assertion that
Defendants did not violate D. Longmire's constitutional rights and does not otherwise argue that
the rights were not clearly established.
See Doc. 119 at 15. Thus, the issue of qualified
immunity does not substantively differ from the merits arguments themselves in this case.
Accordingly, neither of these arguments alters the conclusions above,
For the reasons set forth herein, the Court DENIES the iVlotion, Doc. 118. Because the
Court is denying the Motion, the Court also WAIVES any further briefing on the related Motion
for Leave to Supplement, Doc. 145, and DENIES that Motion for Leave AS IMOOT.
The Clerk is REQUESTED to send a copy of this Opinion & Order to all counsel of
It is so ORDERED.
1-Icnry Coke Morgan, Jr.
Senior United Slalcs District Judg^
HENRY COKE MORGAN, JR.
SENIOR UNITED STATES DISTRICT JUDGE
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