Lowe v. Ballard et al
Filing
136
MEMORANDUM OPINION AND ORDER directing that the referral to the magistrate judge is WITHDRAWN and the undersigned will proceed to rule on all pending motions; the 122 Motion for Summary Judgment filed by defendants Williams, Berry, Slack, and Toney is GRANTED IN PART, with respect to Lowe's Eight Amendment and assault and battery claims against Williams and Berry in Counts II and IV, Lowe's intentional infliction of emotional distress claim in Count V, and any and all claims against Slack and Toney; the motion is DENIED IN PART with respect to the Eighth Amendment and assault and battery claims against Williams in Counts I and IV. Signed by Judge Joseph R. Goodwin on 9/9/2020. (cc: counsel of record; any unrepresented party) (kew)
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IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
CHARLESTON DIVISION
KEITH W.R. LOWE,
Plaintiff,
v.
Case No. 2:17-cv-03929
DAVID BALLARD, et al.,
Defendants.
MEMORANDUM OPINION AND ORDER
This matter is presently referred to the Honorable Dwane L. Tinsley, United
States Magistrate Judge, for pre-trial management and submission of proposed
findings and recommendation for disposition. For reasons appearing to the court, the
referral to the magistrate judge is WITHDRAWN and the undersigned will proceed
to rule on all pending motions. Pending before the court is a Motion for Summary
Judgment filed by defendants Ronnie Williams, Sgt. Slack, Lt. Berry, and Capt.
Toney [ECF No. 122]. For the reasons explained herein, it is hereby ORDERED that
the motion is GRANTED in part and DENIED in part.
I.
Background
This matter is proceeding on the plaintiff, Keith W.R. Lowe’s (hereinafter
“Lowe”) Amended Complaint [ECF No. 34] alleging that, on July 21, 2017, defendant
Ronnie Williams (“Williams”) pepper sprayed him, without provocation or
justification, while he was confined in his segregation cell at the Mount Olive
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Correctional Complex (“MOCC”), and that Williams and Lt. Berry (“Berry”)
subsequently slammed his head into a wall when they escorted him to the recreation
yard to be decontaminated. Lowe claims that the defendants’ conduct violated his
rights under the Eighth and Fourteenth Amendments of the United States
Constitution (Counts I and II) and constituted assault and battery (Count IV) and
intentional infliction of emotional distress under state law (Count V). 1
On June 5, 2020, following a discovery period, Williams, Berry, Slack, and
Toney filed the instant Motion for Summary Judgment [ECF No. 122] and a
Memorandum of Law in support thereof [ECF No. 123]. In support of their motion,
the defendants offer the following exhibits: the affidavit of Ronnie Williams; a
memorandum outlining the plan for Lowe’s July 21, 2017 cell extraction; incident
reports; five video segments recorded during and after the incidents in question; and
discovery responses and excerpts from Lowe’s deposition in prior litigation in which
Lowe acknowledges his prior military training and his history of violent actions and
an escape attempt while at MOCC. [ECF No. 122, Ex. A-E].
On June 22, 2020, Lowe filed a response to the defendants’ motion for summary
judgment [ECF No. 127], including his own affidavit and a number of other exhibits
consisting of incident reports, medical and mental health records, pictures of his
alleged injuries, the relevant policy and procedures for opening cell doors, and safety
data sheets and labels concerning the pepper spray that was used. [ECF No. 127,
Exs. A-N].
Count III of the Amended Complaint alleges a claim of supervisory liability against other defendants. That
claim will be addressed in a separate Memorandum Opinion and Order filed contemporaneously herein.
1
2
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The parties agree that, on July 21, 2017, Williams deployed almost a full 16ounce cannister of Sabre Phantom MK-9 Oleoresin Capsicum (hereinafter “pepper
spray”) into Lowe’s segregation cell that day, but the circumstances surrounding this
incident are otherwise largely disputed.
A.
Lowe’s version of the events
According to Lowe, around 8:30 p.m. on July 21, 2017, he was sitting on the
toilet in his cell listening to music with earbuds when he was startled by his cell door
opening. Lowe claims that the cell door only opened a few inches and that, when he
went towards the door to see what was happening, he was immediately pepper
sprayed by Williams without provocation or reason. Lowe claims that Williams
repeatedly sprayed him, using a total of 13 ounces of pepper spray, despite the fact
that Lowe was already “blinded and incapacitated.” Lowe further claims that, only
after using such force, did Williams order him to cuff up for removal from his cell, and
that he immediately complied with Williams’ direction. He further disputes that he
had wedged any paper into the door jamb of his cell to prevent the door from opening.
Lowe claims that the available video evidence does not capture the interactions
leading up to and including Williams’ deployment of pepper spray and that the
defendants’ version of events is not supported by the time frame set forth in the video
evidence. Lowe further specifically disputes the veracity and consistency of the
incident reports and affidavits presented by the defendants and questions why the
defendants would violate established policies and procedures for opening cell doors if
he posed the security threat alleged by the defendants. In sum, he disputes the need
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for the use of any force against him and additionally asserts that the amount of
pepper spray that was used was excessive.
Lowe was subsequently escorted by Williams and Berry to the recreation yard
so that he could be decontaminated and medically assessed.
Lowe’s Amended
Complaint claims that, when they arrived in the recreation yard, Williams and Berry
“pushed [him] against the wall face first bouncing his forehead off the wall.” [ECF
No. 34 at 3]. However, Lowe’s response to the defendants’ motion for summary
judgment does not appear to address this claim. [ECF No. 127].
B.
Defendants’ version of events
The defendants’ motion documents assert that Lowe’s cell extraction on July
21, 2017 was a special operation executed by West Virginia Division of Corrections’
(“WVDOC”) Central Office officials targeted at retrieving a cellular phone kept by
Lowe in his cell. Correctional staff had acquired intelligence demonstrating that
Lowe was using the phone to communicate with a female inmate at the Southwestern
Regional Jail.
The defendants contend that prior searches of Lowe’s cell on June 21, 2017 and
July 6, 2017 led to the discovery of other contraband, including flash drives
containing by-laws for a white supremacist prison gang, a six-inch folding knife, and
a drill bit, believed to be a tool to tamper with doors and locks. However, correctional
staff were unable to locate the cell phone during those searches. Consequently,
Williams, the WVDOC’s Chief of Special Operations, was asked to coordinate a cell
extraction to obtain the phone from Lowe.
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On the day in question, Williams and Berry parked and walked through the
main gate at shift change dressed in the same uniforms as those worn by pod officers
during their regular shifts, so as not to alert Lowe to their presence at the prison.
Williams contends that Lowe had defeated prior attempts to search his cell by
covering his cell window and refusing to immediately comply with cuffing procedures
to buy time to conceal the phone. Thus, Williams put together an extraction team of
seven officers (including himself), armed with pepper spray and other munitions, and
made the tactical decision that Lowe’s cell would be immediately opened and he would
be ordered to immediately show his hands and cuff up. If Lowe failed to comply, then
the munitions, beginning with the pepper spray, would be deployed to gain his
compliance.
The defendants assert that the video evidence of the cell extraction and their
incident reports demonstrate that the force used against Lowe, a former special forces
officer, with a murder conviction, a history of violent and volatile conduct, and an
escape attempt while at MOCC, was reasonable under the circumstances, and was
done in a good faith effort to restore order in the prison unit. Their motion documents
claim that Williams, Berry, and Slack entered the cell block first, while the other
members of the extraction team remained in the roundabout area outside Lowe’s cell
block to avoid arousing the suspicion of all of the inmates. Upon arrival at Lowe’s
cell, Williams directed that Lowe’s cell door be unlocked and opened by the tower
officer. However, Lowe’s door jammed after only opening a few inches, and his cell
window was allegedly covered. The defendants further claim that Williams gave
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Lowe loud, clear, and direct orders to come to the opening and cuff up in order to be
removed from the cell. They further claim that Lowe failed to comply with these
orders and was observed near the back of his cell and was believed to be in the process
of concealing the cell phone they were seeking to find. Thus, Williams deployed
pepper spray into Lowe’s cell in an effort to get him to comply with his orders and to
keep him from secreting away or destroying evidence.
C.
The relevant video evidence
Although another correctional officer, Trevor Anderson (who is not a defendant
herein), was assigned to video record the interactions with Lowe using a hand-held
camera, Anderson did not initially enter Lowe’s pod with Williams and the other two
officers, and, by the time he entered the pod and approached the area of Lowe’s cell,
it appears that Williams had already deployed the pepper spray. Williams can be
heard directing Lowe to put his hands through the food tray slot, which had been
opened, to be cuffed and brought out of his cell. Lowe complied with that order after
a few seconds. However, there is no useful video evidence of the interactions between
Lowe and Williams or the other officers leading up to or during the use of the pepper
spray.
Subsequent to the cell extraction, Lowe is escorted to the recreation yard by
Williams and Berry. As they arrive in the recreation yard, they place Lowe face first
up against the wall to add leg shackles. While it appears that Lowe was startled
when he hit the wall, there is nothing in the video evidence that demonstrates that
his face was slammed against the wall in a malicious or sadistic manner. The
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remaining video evidence consists of recordings of the decontamination process and
Lowe sitting in a common office area awaiting return to his cell.
During that time, Lowe’s cell was searched and, although other items of
contraband, including drug paraphernalia and a cell phone battery were found, the
intact cell phone they were seeking was not located. At some point during these
interactions, Lowe admits that he possessed the cell phone and pulls it from his boxer
shorts. Additional video evidence demonstrates that paper was found inside the door
jamb of Lowe’s cell, which was believed to have been placed there by Lowe to impede
the opening of his door.
II.
Standard of Review
To obtain summary judgment, the moving party must show “there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” Variety Stores, Inc. v. Wal-Mart Stores, Inc., 888 F.3d 651, 659 (4th
Cir. 2018) (quoting Fed. R. Civ. P. 56(a)). A court considering a motion for summary
judgment does not resolve disputed facts, weigh the evidence, or make determinations
of credibility. Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995); Sosebee
v.
Murphy, 797 F.2d 179, 182 (4th Cir. 1986).
Instead, the court draws any
permissible inferences from the facts in the light most favorable to the nonmoving
party. United States v. Diebold, Inc., 369 U.S. 654, 655 (1962). Nonetheless, “[w]hen
opposing parties tell two different stories, one of which is blatantly contradicted by
the record, so that no reasonable jury could believe it, a court should not adopt that
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version of the facts for purposes of ruling on a motion for summary judgment.” Scott
v. Harris, 550 U.S. 372, 380 (2007).
III.
Discussion
A.
Lowe’s claims against Slack and Toney
Lowe’s Amended Complaint fails to allege any specific factual allegations
concerning conduct by defendants Slack and Toney.
Rather, throughout the
Amended Complaint, Lowe simply refers collectively to “Defendants,” but only
specifically describes the conduct of Williams and Berry (and with Berry, he only
includes facts concerning the conduct on the recreation yard). Thus, the Amended
Complaint fails to state a sufficient claim for relief against Slack and Toney.
In his response to the motion for summary judgment, Lowe attempts, for the
first time, to argue that Berry, Slack, and Toney should be held liable under the
Eighth Amendment because they failed to intervene in an attempt to prevent
Williams from violating his constitutional rights in the course of the cell extraction.
However, a party may not amend or add additional claims through a response to a
dispositive motion.
See Southern Walk at Broadlands Homeowner’s Ass’n v.
OpenBand at Broadlands, LLC, 713 F.3d 175, 184-85 (4th Cir. 2013) (“It is wellestablished that parties cannot amend their complaints through briefing or oral
advocacy”). Accordingly, I FIND that Lowe’s Amended Complaint fails to sufficiently
state any claim for relief against Slack and Toney and that those defendants are
entitled to judgment as a matter of law on all of Lowe’s claims for relief.
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B.
Lowe’s Eighth Amendment (Count I) and assault and battery (Count IV)
claims against Williams arising out of use of pepper spray
The Eighth Amendment prohibits prison officials from unnecessarily and
wantonly inflicting pain on prisoners. Hill v. Crum, 727 F.3d 312, 317 (4th Cir.
2013). 2 To succeed on an Eighth Amendment claim, the plaintiff must establish that
“the prison official acted with a sufficiently culpable state of mind (subjective
component)” and that “the deprivation suffered or injury inflicted on the inmate was
sufficiently serious (objective component).” Iko v. Shreve, 535 F.3d 225, 238 (4th Cir.
2008).
The subjective component requires a showing that the prison official acted
“maliciously and sadistically for the very purpose of causing harm” rather than “in a
good faith effort to maintain or restore discipline.” Whitley v. Albers, 475 U.S. 312,
320-21 (1986), abrogated on other grounds by Wilkins v. Gaddy, 559 U.S. 34 (2010).
The Supreme Court has identified four factors that must be weighed in making this
determination: (1) the need for application of force; (2) the relationship between the
need and the amount of force that was used; (3) the threat reasonably perceived by
the responsible official; and (4) any efforts made to temper the severity of a forceful
The court construes Lowe’s citation to the Fourteenth Amendment to be merely referencing the
Fourteenth Amendment’s incorporation of the United States Constitution’s Bill of Rights unto the
states. However, if Lowe intended to raise a separate claim under the due process clause of the
Fourteenth Amendment, the law is well-settled that, where a claim for relief is governed by a more
specific protection, such as that of the Eighth Amendment’s guarantee against cruel and unusual
punishment, “the claim must be analyzed under the standard appropriate to that specific provision,
not under the rubric of substantive due process.” United States v. Lanier, 520 U.S. 259, 272 n.7 (1997)
(citing Graham v. Connor, 490 U.S. 386, 394 (1989)). In Graham, the Supreme Court held that where
an explicit textual source of constitutional protection applies to physically intrusive government
conduct, “that Amendment, not the more generalized notion of ‘substantive due process,’” must be the
guidepost for analyzing the claim. 490 U.S. at 395. Here, Lowe’s claim, if any, is appropriately
addressed under the Eighth Amendment’s prohibition on cruel and unusual punishment.
2
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response. Whitley, 475 U.S. at 321; see also Williams v. Benjamin, 77 F.3d 756, 762
(4th Cir. 1996). The objective component, on the other hand, is “contextual and
responsive to contemporary standards of decency,” and is always satisfied “[w]hen
prison officials maliciously and sadistically use force to cause harm.” Hudson v.
McMillian, 503 U.S. 1, 8-9, 112 (1992) (internal quotation marks omitted).
It is well-established that prison officials violate the Eighth Amendment by
using “mace, tear gas or other chemical agents in quantities greater than necessary
or for the sole purpose of infliction of pain.” Williams v. Benjamin, 77 F.3d 756, 763
(4th Cir. 1996) (internal quotation marks omitted); see also Iko, 535 F.3d at 239-40
(finding use of pepper spray during cell extraction of nonconfrontational inmate
constituted excessive force); Boone v. Stallings, 583 F. App'x 174, 176 (4th Cir. 2014)
(finding genuine issues of material fact concerning several bursts of pepper spray
used on an allegedly docile inmate).
This court is consistently confronted with
disputes of fact concerning the deployment of pepper spray against segregated
inmates at MOCC because the material interactions between staff and inmates are
frequently not recorded.
I remain puzzled by the WVDOC’s failure to require
recording of all interactions between staff and inmates, either through body cameras
placed on correctional staff, or stationary cameras placed on prison pods, to promote
transparency and to avoid unnecessary expenses in litigation. 3
Even in this matter, where some video evidence was developed (some of which
is of poor quality), the crucial interactions between Lowe and Williams were not
Lowe maintains that there were stationary cameras on his cell block but, during discovery, he was
advised that no such video footage exists.
3
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recorded and the court is left to weigh the credibility of the parties’ competing
statements in incident reports and affidavits, which is impermissible at the summary
judgment stage. See Greene v. Feaster, No. 19-6359, 775 F. App’x 90 (4th Cir. Aug.
16, 2019) (vacating grant of summary judgment because there was no direct video
evidence to support blatant contradiction of plaintiff’s version of disputed facts).
Taking the evidence in the light most favorable to Lowe, a reasonable jury could make
a reliable inference of wantonness in the infliction of pain. Accordingly, I FIND that
there are genuine issues of material fact concerning the need for and amount of the
force used by Ronnie Williams in this matter and, thus, Williams is not entitled to
judgment as a matter of law on Lowe’s Eighth Amendment claim concerning the
deployment of pepper spray on July 21, 2017.
Likewise, because Lowe’s state-law claim for assault and battery concerning
Williams’ deployment of pepper spray against him arises out of the same disputed
facts, I FIND that summary judgment on that claim is also inappropriate. In West
Virginia, a person is liable for battery if: “(a) he acts intending to cause a harmful or
offensive contact with the person of the other or a third person, or an imminent
apprehension of such a contact, and (b) a harmful contact with the person of the other
directly or indirectly results.” Weigle v. Pifer, 139 F. Supp. 3d 760, 776 (S.D. W. Va.
2015) (quoting Restatement (Second) of Torts § 13 (1965)). A person is liable for
assault if: “(a) he acts intending to cause a harmful or offensive contact with the
person of the other or a third person, or an imminent apprehension of such a contact,
and (b) the other is thereby put in such imminent apprehension.” Id.
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An activity, however, that would otherwise subject a person to liability in tort
for battery or assault does not constitute tortious conduct if the actor is privileged to
engage in such conduct. Hutchinson v. West Virginia State Police, 731 F.Supp.2d
521, 547 (S.D. W. Va. 2010) (citation omitted). “A privilege may be based upon . . . the
fact that its exercise is necessary for the protection of some interest . . . of the public
which is of such importance as to justify the harm caused or threatened by its
exercise.” Restatement (Second) of Torts § 10 (Am. Law Inst. 1965).
Construing the evidence in a light most favorable to Lowe, I FIND that a jury
could reasonably determine that Williams used excessive force by deploying pepper
spray. If Williams’ use of pepper spray is determined to be excessive, then a jury
could also find that Williams’ conduct was offensive and harmful, reasonably
precluding a finding of privilege as to Lowe’s battery and assault claims. Therefore,
Williams is, likewise, not entitled to judgment as a matter of law on Lowe’s assault
and battery claim in Count IV arising out of the pepper spray incident.
C.
Lowe’s Eighth Amendment (Count II) and Assault and Battery (Count
IV) Claims Against Williams and Berry for Use of Force on the
Recreation Yard
Lowe’s Amended Complaint asserts additional Eighth Amendment and assault
and battery claims against defendants Williams and Berry because they allegedly
slammed Lowe’s face and forehead into the recreation yard wall. However, upon
review of the video evidence of that incident, I FIND that Lowe’s version of that event
is blatantly contradicted by the record. Upon delivering Lowe to the recreation yard,
Williams and Berry place Lowe up against the wall, face first, and Lowe appeared to
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be somewhat startled when his face touched the wall. However, the video evidence
fails to demonstrate that Lowe was slammed into the wall or that the force used could
be considered objectively unreasonable or offensive and harmful.
Therefore, Lowe has failed to demonstrate a violation of his Eighth
Amendment rights or state law on this basis. Accordingly, I FIND that defendants
Williams and Berry are entitled to judgment as a matter of law on Counts II and IV
of Lowe’s Amended Complaint with respect to their conduct on the recreation yard.
D.
Lowe’s intentional infliction of emotional distress claim (Count V)
In Count V of his Amended Complaint, Lowe alleges that the defendants’
conduct 4 amounted to the intentional infliction of emotional distress (“IIED”). West
Virginia law recognizes such a tort, which is also known as the “tort of outrage.” To
prevail on an IIED claim under West Virginia law, a plaintiff must show:
(1) that the defendant's conduct was atrocious, intolerable, and so
extreme and outrageous as to exceed the bounds of decency; (2) that the
defendant acted with the intent to inflict emotional distress, or acted
recklessly when it was certain or substantially certain emotional
distress would result from his conduct; (3) that the actions of the
defendant caused the plaintiff to suffer emotional distress; and, (4) that
the emotional distress suffered by the plaintiff was so severe that no
reasonable person could be expected to endure it.
Miller v. Rubenstein, No. 2:16-cv-05637, 2018 WL 736044, at *16-17 (S. D. W. Va.
Feb. 6, 2018). These elements present a high bar to recovery. See Courtney v.
Courtney, 186 W.Va. 597, 413 S.E.2d 418, 423 (1991) (“conduct that is merely
annoying, harmful of one's rights or expectations, uncivil, mean-spirited, or negligent
It is unclear against whom Lowe is asserting this claim. He specifically mentions Williams and
discusses the pepper spray and recreation yard incidents. However, he further refers to “Defendants”
in this count. The undersigned construes this claim to be brought only against Williams and Berry.
4
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does not constitute outrageous conduct.”). In analyzing the first factor, a court can
“consider whether the extreme and outrageous character of the conduct arose from
an abuse by the defendant of a position or relationship to the plaintiff, which gave
the defendant actual or apparent authority over the plaintiff or power to affect the
plaintiff's interests.” Travis v. Alcon Labs., Inc., 202 W.Va. 369, 504 S.E.2d 419, 421
(1998).
In West Virginia, an IIED claim which is duplicitous with an assault and
battery claim cannot go forward. See Criss v. Criss, 356 S.E.2d 620 (W. Va. 1987)
(“[I]f a jury finds that the proof sustains the appellant's complaint, she will be able to
recover compensatory and punitive damages against the appellee as a result of the
assault and battery, including elements of emotional distress. Therefore, it would be
inappropriate to allow her to also recover damages based on the tort of IIED.”). IIED
“was conceived as a remedy for tortious conduct where no remedy previously
existed.” Compton v. O'Bryan, No. 2:16-CV-09298, 2018 WL 813443, at *5 (S.D. W.
Va. Feb. 9, 2018). And at “the outset of a case, an assault claim encompasses claims
for IIED arising out of the assault, such that a plaintiff may present his claim for
intentional infliction of emotional distress as a part of his assault claim.” Id.
Here, the facts giving rise to Lowe’s IIED claim are the same facts supporting
his assault and battery claim. Thus, he is barred from pursuing a double recovery for
such alleged emotional injuries. Moreover, Lowe has not alleged actions that are “so
outrageous in character, and so extreme in degree, as to go beyond all possible bounds
of decency, and to be regarded as atrocious and utterly intolerable in a civilized
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community.” Tomashek v. Raleigh Cty. Emergency Operating Ctr., No. 2:17-CV01904, 2018 WL 502752, at *4-5 (S.D. W. Va. Jan. 22, 2018). Thus, he has failed to
establish a genuine issue of material fact and the defendants are entitled to judgment
as a matter of law on Lowe’s IIED claim.
IV.
Conclusion
For the reasons stated herein, it is hereby ORDERED that the Motion for
Summary Judgment filed by defendants Williams, Berry, Slack, and Toney [ECF No.
122] is GRANTED IN PART, with respect to Lowe’s Eight Amendment and assault
and battery claims against Williams and Berry in Counts II and IV (concerning the
recreation yard incident), Lowe’s intentional infliction of emotional distress claim in
Count V, and any and all claims against Slack and Toney. However, it is further
ORDERED that the motion is DENIED IN PART with respect to the Eighth
Amendment and assault and battery claims against Williams in Counts I and IV
(concerning the pepper spray incident during the cell extraction). A separate Order
will follow concerning additional proceedings on these remaining claims.
The Clerk is directed to transmit a copy of this Memorandum Opinion and
Order to counsel of record and any unrepresented party.
ENTER:
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September 9, 2020
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