Lee v. Foxwell

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MARYLAND

TRACY SAMUEL LEE, *

MERVYN BIVENS,

BRUCE ANTONIO RICKS, *

Plaintiffs, *

v. * Civil Action No. ELH-18-3882

(Related Case No. ELH-19-18)

RICKY FOXWELL, Warden of ECI, * (Related Case No. ELH-19-56)

ROBERT TROXELL, CDM, and

DEPARTMENT OF PUBLIC SAFETY, *

AND CORRECTIONAL SERVICES,

*

Defendants.

***

MEMORANDUM OPINION

This case arises from an isolated error on October 25, 2017, at Eastern Correctional

Institution (“ECI”), a State prison in Westover, Maryland. The error resulted in the provision of

sausages to inmates at breakfast that contained 2% or less of pork stock.

At the time of the incident, plaintiffs Tracy Samuel Lee, Mervyn Bivens, and Bruce

Antonio Ricks were inmates housed at ECI. See ELH-18-3882 (Lee Compl.), ECF 1; Case ELH-

19-18 (Bivens Compl.), ECF 1; Case ELH-19-56 (Ricks Compl.), ECF 1. They brought separate

suits pursuant to 42 U.S.C. § 1983 against ECI Warden Ricky Foxwell, Dietary Manager Robert

Troxell, Sr., and the Department of Public Safety and Correctional Services (“DPSCS”).1

Claiming that consumption of pork is against their religion as Sunni Muslims, each plaintiff seeks

compensatory and punitive damages for defendants’ alleged violation of their First Amendment

rights. Additionally, Lee seeks injunctive relief in the form of transfer to another institution. Case

1 Lee and Ricks named Foxwell and Troxell as defendants. ELH-18-3882; ELH-19-56.

Bivens originally named Foxwell, DPSCS, and “ECI Dietary” as defendants. ELH-19-18. On

January 29, 2019, this court dismissed the suit as to ECI Dietary. See ELH-19-18, ECF 6.

ELH-18-3882, ECF 1.

By Order of January 29, 2019, I consolidated plaintiffs’ cases. Case ELH-18-3882, ECF

6. And, because Mr. Lee’s case was the first of the three to be filed, I designated it as the lead one

for filing purposes. Id.; see also ELH-19-18, ECF 6; ELH-19-56, ECF 8. Hereafter, all citations

reflect their electronic pagination in case ELH-18-3882.

Defendants have moved to dismiss or, in the alternative, for summary judgment. ELH-18-

3882, ECF 20. The motion is supported by a memorandum of law (ECF 20-1) (collectively, the

“Motion”) and several exhibits. Pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975),

the court informed plaintiffs that the failure to file an opposition to the defendants’ Motion could

result in dismissal of their suit or judgment against them. ECF 21 (Lee); ECF 22 (Bivens); ECF

23 (Ricks). Bivens and Lee filed responses in opposition to defendants’ Motion. ECF 24 (Bivens);

ECF 26 (Lee); ECF 27 (Lee). Ricks filed motions for summary judgment. ECF 25; ECF 28.

Defendants did not reply.

Upon review of the record, exhibits, and applicable law, the court deems a hearing

unnecessary. See Local Rule 105.6 (D. Md. 2018). Defendant DPSCS shall be dismissed from

suit. Ricks’s motions for summary judgment shall be denied. Defendants’ Motion shall be

construed as a motion for summary judgment as to the remaining defendants and shall be granted.

I. Factual Background

Plaintiffs state that on October 25, 2017, while incarcerated at ECI, they were served

sausages that contained pork. See ECF 1 (Lee Complaint); ECF 7 (Bivens Complaint); ECF 12

(Ricks Complaint). Plaintiffs allege that defendants knew the sausages contained pork but decided

to serve them nonetheless. See ECF 1 at 5; ECF 7 at 2; see also ECF 25 at 2. Plaintiffs claim that

they are all practicing Sunni Muslims and that consuming pork is against their religion. ECF 1 at

2; ECF 7 at 3; ECF 12 at 2.

As a result of eating the sausages, Bivens claims that he became ill and suffered vomiting,

nausea, and diarrhea. ECF 7 at 3. Ricks claims that he began to have stomach pains and vomiting,

prompting him to fill out a sick call slip. ECF 12 at 2.

Troxell was the Correctional Dietary Manager at ECI during the relevant time. ECF 20-3

(Troxell Declaration), &1. In his Declaration, Troxell states that, in accordance with DPSCS

policy, “no prison inmate food items of any kind may contain any pork or pork by-products out of

general consideration of established Muslim and Jewish religious dietary restrictions, which forbid

consumption of any pork[.]” Id. ¶3. Moreover, “[c]ertified Halal and Kosher diets are provided

for Muslim and Jewish inmates, respectively, on the basis of widely recognized and established

Muslim and Jewish religious convictions.” Id. ¶4. However, those religious diets are “only

provided to inmates who submit a written dietary request and have been approved by the prison

chaplain once the chaplain has interviewed them individually to ascertain the veracity and sincerity

of their respective religious faiths to warrant accommodation of a religious diet rather than the

general population meals.” Id. Troxell avers that none of the plaintiffs ever submitted a written

request for a Halal special diet on the basis of his Muslim faith. Id. ¶5.

It is clear that, at the relevant time, the DPSCS did not order sausages with pork. An

Invoice dated September 27, 2017, reflects that ECI contracted to purchase 192 cases of turkey

maple sausage links from a commercial food vendor. ECF 20-2 (DPSCS Records) at 3. Notably,

the Invoice expressly states, in part: “Sausage, Turkey Maple Link . . . .” Id. Payment was due by

October 27, 2017. Id. And, the purchase requisition (id. at 4) indicates an “Item Description” of

“Turkey Sausage Links.” Further, the “Receiving Report” describes the “articles” as “Turkey

Sausage links.” Id. at 5.

Of relevance, all commercial vendors supplying inmate food items to ECI are explicitly

informed prior to sale that any food items must not contain any pork or pork by-products, in

accordance with DPSCS policies. See ECF 20-3, ¶6. Troxell avers that ECI relies on the

commercial food vendors to comply with this policy. Id. Defendants also expect ECI staff to

comply with Division of Correction Directives and ECI policies regarding inmate meals. Id. at

¶7; ECF 20-5 (Foxwell Declaration), ¶3.

Defendants do not dispute, however, that 12 of the 192 cases of “sausage that contained

2% or less dehydrated pork stock” were served to ECI inmates on October 25, 2017. See ECF 20-

1 at 6.2 Troxell states that once the sausage links were discovered to contain pork stock, they were

not served again and the remaining 180 cases of the turkey sausage links were returned to the

commercial vendor for credit. ECF 20-3, ¶9. The Bill of Lading business record reflecting the

original order of 192 cases of turkey sausage includes a handwritten notation that 180 cases were

returned. See ECF 20-2 at 6.

In their responses to defendants’ Motion, plaintiffs assert that ECI correctional dietary

officers had been aware that the sausages contained pork prior to serving them. See ECF 24 at 3-

6; ECF 25 at 2; ECF 26. To support their assertion, all three plaintiffs attached as an exhibit a

Notice of Incident/Matter of Record (“MOR”) dated October 25, 2017, and completed by ECI

correctional officer Sgt. T. Twilley. It states, ECF 24-1; ECF 26-1; ECF 28-1:

On 10/25/17 I Sgt. T. Twilley CDO II reported for duty as East Dietary First Officer

at 0750. At approximately 0825 Sgt. Farina CDO II reported for duty and I called

for the AM dietary workers. As a couple of the workers arrived to work they asked

if the sausage for breakfast was pork; I told them no it should not be, the

warehouse/dietary does not get pork to serve to population, they said they were told

by some of the PM workers it had pork in it, I again told them it could not be we

don’t get pork products of any sort to serve. The sausage for the seg line and part

of the food line to start was cook [sic] that night. I went into the walk in to check

2 Eggs were available upon request. ECF 20-1 at 6.

the labels there were no labels on any of the boxes, so I held firm they were turkey

sausage. After the seg line had been completed I went to the back flipped over the

back, there was a MOR with a sausage label on it. I took a fast look at the label

and it said Turkey Sausage. I did not read the MOR or the label any more, the

sausage were [sic] turkey. I was still asked by some of the kitchen workers if it was

pork sausage I told them no it was turkey. After the second line went through, I

was asked again. I was in the back with food service work getting product out. The

3rd line started and was about ½ or more through when I came out of the back. I

at this time went into the office, to read Sgt. Riddick CDO’s MOR. At this time of

reading it I found that the item in the Turkey Sausage there was pork stock, I didn’t

read any more to see if it was natural . . . . I went to the front line only to find there

were only approx 6-10 people left in the line. I spoke to some of the PM shift later

and was told they had pointed it out to Sgt. Morris CDO II when the sausage came

in and he acted as if he did not care, and stated they will eat it anyway. I don’t

know if he said this I was not there. On Friday 10/27/17 when Sgt. Riddick came

back to work I asked her about it. She stated she wrote a MOR about it, and that

she kept getting told because Sgt. Morris was told when the food service truck came

in and did not care and would do nothing about it, and still had them pan the sausage

up. She said when she asked him about it, he acted as they [sic] it did not matter

and he did not care. This product should have never been sent into the compounds

from the warehouse. The warehouse foods officer whom [sic] received the products

from vendors should have caught this and never received this product.

On November 10, 2017, Ricks filed Administrative Remedy Procedure (“ARP”) complaint

ECI-2908-17, and on November 12, 2017, Bivens filed ARP complaint ECI-2927-17. ECF 20-2

at 7-8, 24-26. Both plaintiffs asserted that by serving pork at breakfast on the date in question,

ECI staff violated their First Amendment right to practice their religion. Id. Both plaintiffs also

stated that they became ill after consuming pork. Id. They sought, inter alia, monetary

compensation. Id.

When responding to an ECI inmate’s ARP complaint, Foxwell relies on the review and

investigation by the staff. ECF 20-5, ¶4. During the investigation of plaintiffs’ ARP complaints

by ECI staff, a correctional officer assigned to the “feed up” meal duty for October 25, 2017,

provided a statement indicating that, to the officer’s knowledge, no pork products were purchased

or served in the Division of Correction, that the food item in question was turkey sausage, and that

eggs were available if any inmate wanted a substitute. ECF 20-2 at 35.

On November 28, 2017, Foxwell provided the following response to Bivens’s ARP

complaint, id. at 7:

Your request for Administrative Remedy has been investigated and is Meritorious

in Part; upon review of reports from staff and supporting documentation, it has been

determined that sausage that contained 2% or less dehydrated pork stock on

10/25/17. This was served as an oversite [sic] by multiple departments and the

vendor. This product has been pulled and will not be served in the future. Per the

Chaplains [sic] office; not to eat pork is a religious preference. Eating of pork

products does not cause health issues. Staff has been advised to check labels prior

to serving.

Foxwell provided a similar response with regard to Ricks’s ARP complaint on November 30, 2017.

Id. at 24.

Both Bivens and Ricks appealed their respective ARP complaints, asserting that, pursuant

to prison procedures, “no pork or pork products shall be purchased or served for inmate food

services.” See id. at 13-18; 29-30. The Commissioner of Correction dismissed both appeals,

stating: “You were advised in the warden’s response that staff has been advised to check labels

prior to serving.” Id. at 12, 28. The Commissioner also advised Bivens and Ricks that the relief

or remedy they sought would not be provided. Id.

Thereafter, Bivens filed a grievance with the Inmate Grievance Office (“IGO”), Case No.

20180163, which was reviewed and dismissed on March 12, 2018. ECF 20-4 (Hassan

Declaration), ¶3. Ricks also filed a grievance with the IGO, Case No. 20180162, which was

reviewed and dismissed on July 18, 2018. Id. at ¶3. There is no record that Lee filed any ARP

appeal regarding this incident with the IGO. See id. at ¶5.

I. Standard of Review

Defendants’ Motion is styled as a motion to dismiss under Fed. R. Civ. P. 12(b)(6) or, in

the alternative, for summary judgment under Fed. R. Civ. P. 56. A motion styled in this manner

implicates the court’s discretion under Rule 12(d) of the Federal Rules of Civil Procedure. See

Kensington Vol. Fire Dept., Inc. v. Montgomery Cty., 788 F. Supp. 2d 431, 436-37 (D. Md. 2011).

Ordinarily, a court “is not to consider matters outside the pleadings or resolve factual

disputes when ruling on a motion to dismiss.” Bosiger v. U.S. Airways, Inc., 510 F.3d 442, 450

(4th Cir. 2007). However, under Rule 12(b)(6), a court, in its discretion, may consider matters

outside of the pleadings, pursuant to Rule 12(d). If the court does so, “the motion must be treated

as one for summary judgment under Rule 56,” and “[a]ll parties must be given a reasonable

opportunity to present all the material that is pertinent to the motion.” Fed. R. Civ. P. 12(d); see

Adams Housing, LLC v. The City of Salisbury, Maryland, 672 Fed App’x 220, 222 (4th Cir. 2016)

(per curiam). But, when the movant expressly captions its motion “in the alternative” as one for

summary judgment, and submits matters outside the pleadings for the court’s consideration, the

parties are deemed to be on notice that conversion under Rule 12(d) may occur; the court “does

not have an obligation to notify parties of the obvious.” Laughlin v. Metro. Wash. Airports Auth.,

149 F.3d 253, 261 (4th Cir. 1998).

A district judge has “complete discretion to determine whether or not to accept the

submission of any material beyond the pleadings that is offered in conjunction with a Rule 12(b)(6)

motion and rely on it, thereby converting the motion, or to reject it or simply not consider it.” 5C

WRIGHT & MILLER, FEDERAL PRACTICE & PROCEDURE § 1366, at 159 (3d ed. 2004, 2011 Supp.).

This discretion “should be exercised with great caution and attention to the parties’ procedural

rights.” Id. at 149. In general, courts are guided by whether consideration of extraneous material

“is likely to facilitate the disposition of the action,” and “whether discovery prior to the utilization

of the summary judgment procedure” is necessary. Id. at 165-67.

Summary judgment is generally inappropriate “where the parties have not had an

opportunity for reasonable discovery.” E.I. du Pont de Nemours & Co. v. Kolon Indus., Inc., 637

F.3d 435, 448-49 (4th Cir. 2011); see Putney v. Likin, 656 Fed. App’x 632, 638 (4th Cir. 2016)

(per curiam); McCray v. Maryland Dep't of Transportation, 741 F.3d 480, 483 (4th Cir. 2015).

However, “the party opposing summary judgment ‘cannot complain that summary judgment was

granted without discovery unless that party had made an attempt to oppose the motion on the

grounds that more time was needed for discovery.’” Harrods Ltd. v. Sixty Internet Domain Names,

302 F.3d 214, 244 (4th Cir. 2002) (quoting Evans v. Techs. Applications & Serv. Co., 80 F.3d 954,

961 (4th Cir. 1996)); see also Dave & Buster’s, Inc. v. White Flint Mall, LLLP, 616 Fed. App’x

552, 561 (4th Cir. 2015).

To raise adequately the issue that discovery is needed, the nonmovant typically must file

an affidavit or declaration pursuant to Rule 56(d) (formerly Rule 56(f)), explaining why, “for

specified reasons, it cannot present facts essential to justify its opposition,” without needed

discovery. Fed. R. Civ. P. 56(d); see Harrods, 302 F.3d at 244-45 (discussing affidavit

requirement of former Rule 56(f)). “[T]o justify a denial of summary judgment on the grounds

that additional discovery is necessary, the facts identified in a Rule 56 affidavit must be ‘essential

to [the] opposition.’” Scott v. Nuvell Fin. Servs., LLC, 789 F. Supp. 2d 637, 641 (D. Md. 2011)

(alteration in original) (citation omitted). A nonmoving party’s Rule 56(d) request for additional

discovery is properly denied “where the additional evidence sought for discovery would not have

by itself created a genuine issue of material fact sufficient to defeat summary judgment.” Strag v.

Bd. of Trs., Craven Cmty. Coll., 55 F.3d 943, 954 (4th Cir. 1995); see McClure v. Ports, 914 F.3d

866, 874-75 (4th Cir. 2019); Gordon v. CIGNA Corp., 890 F.3d 463, 479 (4th Cir. 2018);

Amirmokri v. Abraham, 437 F. Supp. 2d 414, 420 (D. Md. 2006), aff’d, 266 F. App’x 274 (4th Cir.

2008), cert. denied, 555 U.S. 885 (2008).

If a nonmoving party believes that further discovery is necessary before consideration of

summary judgment, the party fails to file a Rule 56(d) affidavit at his peril, because “‘the failure

to file an affidavit . . . is itself sufficient grounds to reject a claim that the opportunity for discovery

was inadequate.’” Harrods, 302 F.3d at 244 (citations omitted). But, the nonmoving party’s

failure to file a Rule 56(d) affidavit cannot obligate a court to issue a summary judgment ruling

that is obviously premature. And, a court “should hesitate before denying a Rule 56(d) motion

when the nonmovant seeks necessary information possessed only by the movant.” Pisano v.

Strach, 743 F.3d 927, 931 (4th Cir. 2014).

Although the Fourth Circuit has placed “‘great weight’” on the Rule 56(d) affidavit, and

has said that a mere “‘reference to Rule 56(f) [now Rule 56(d)] and the need for additional

discovery in a memorandum of law in opposition to a motion for summary judgment is not an

adequate substitute for [an] affidavit,’” the appellate court has “not always insisted” on a Rule

56(d) affidavit. Id. (internal citations omitted). According to the Fourth Circuit, failure to file an

affidavit may be excused “if the nonmoving party has adequately informed the district court that

the motion is premature and that more discovery is necessary” and the “nonmoving party’s

objections before the district court ‘served as the functional equivalent of an affidavit.’” Id. at

244-45 (internal citations omitted); see also Putney, 656 Fed. App’x at 638; Nader v. Blair, 549

F.3d 953, 961 (4th Cir. 2008). “This is especially true where, as here, the non-moving party is

proceeding pro se.” Putney, 656 Fed. App’x at 638.

None of the plaintiffs has filed an affidavit under Rule 56(d). With the exception of

DPSCS, I am satisfied that it is appropriate to address the defendants’ Motion as one for summary

judgment, as this will facilitate resolution of the case.

A defendant may test the legal sufficiency of a complaint by way of a motion to dismiss

under Rule 12(b)(6). In re Birmingham, 846 F.3d 88, 92 (4th Cir. 2017); Goines v. Valley Cmty.

Servs. Bd., 822 F.3d 159, 165-66 (4th Cir. 2016); McBurney v. Cuccinelli, 616 F.3d 393, 408 (4th

Cir. 2010), aff’d sub nom., McBurney v. Young, 569 U.S. 221 (2013); Edwards v. City of

Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). A Rule 12(b)(6) motion constitutes an assertion by

a defendant that, even if the facts alleged by a plaintiff are true, the complaint fails as a matter of

law “to state a claim upon which relief can be granted.”

Whether a complaint states a claim for relief is assessed by reference to the pleading

requirements of Fed. R. Civ. P. 8(a)(2). That rule provides that a complaint must contain a “short

and plain statement of the claim showing that the pleader is entitled to relief.” The purpose of the

rule is to provide the defendants with “fair notice” of the claims and the “grounds” for entitlement

to relief. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007).

To survive a motion under Fed. R. Civ. P. 12(b)(6), a complaint must contain facts sufficient

to “state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570; see Ashcroft v.

Iqbal, 556 U.S. 662, 684 (2009) (citation omitted) (“Our decision in Twombly expounded the

pleading standard for ‘all civil actions’ . . . .”); see also Paradise Wire & Cable Defined Benefit

Pension Plan v. Weil, 2019 WL 1105179, at *3 (4th Cir. Mar. 11, 2019); Willner v. Dimon, 849

F.3d 93, 112 (4th Cir. 2017). To be sure, a plaintiff need not include “detailed factual allegations”

in order to satisfy Rule 8(a)(2). Twombly, 550 U.S. at 555. Moreover, federal pleading rules “do

not countenance dismissal of a complaint for imperfect statement of the legal theory supporting

the claim asserted.” Johnson v. City of Shelby, Miss., 574 U.S. 10, 10 (2014) (per curiam). But,

mere “‘naked assertions’ of wrongdoing” are generally insufficient to state a claim for relief.

Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (citation omitted).

Summary judgment is governed by Fed. R. Civ. P. 56(a), which provides in part: “The

court shall grant summary judgment if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter of law.” The Supreme Court has

clarified that this does not mean that any factual dispute will defeat the motion: “By its very terms,

this standard provides that the mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the requirement is

that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

247-48 (1986) (emphasis in original).

A fact is “material” if it “might affect the outcome of the suit under the governing law.” Id.

at 248. There is a genuine issue as to material fact “if the evidence is such that a reasonable jury

could return a verdict for the nonmoving party.” Id.; see Variety Stores, Inc. v. Wal-mart Stores,

Inc., 888 F.3d 651, 659 (4th Cir. 2018); Sharif v. United Airlines, Inc., 841 F.3d 199, 2014 (4th

Cir. 2016); Raynor v. Pugh, 817 F.3d 123, 130 (4th Cir. 2016); Libertarian Party of Va. v. Judd,

718 F.3d 308, 313 (4th Cir. 2013).

“A party opposing a properly supported motion for summary judgment ‘may not rest upon

the mere allegations or denials of [his] pleadings,’ but rather must ‘set forth specific facts showing

that there is a genuine issue for trial.’” Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d

514, 525 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)), cert. denied, 541

U.S. 1042 (2004). And, the court must “view the evidence in the light most favorable to . . . the

nonmovant, and draw all reasonable inferences in her favor without weighing the evidence or

assessing the witnesses’ credibility.” Dennis v. Columbia Colleton Med. Ctr., Inc., 290 F.3d 639,

645 (4th Cir. 2002); see Roland v. United States Citizenship & Immigration Servs., 850 F.3d 625,

628 (4th Cir. 2017); Lee v. Town of Seaboard, 863 F.3d 323, 327 (4th Cir. 2017); FDIC v. Cashion,

720 F.3d 169, 173 (4th Cir. 2013).

Notably, the district court’s “function” is not “to weigh the evidence and determine the

truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S.

at 249; accord Guessous v. Fairview Prop. Inv., LLC, 828 F.3d 208, 216 (4th Cir. 2016). Thus, the

trial court may not make credibility determinations on summary judgment. Wilson v. Prince

George’s County, 893 F.3d 213, 218-19 (4th Cir. 2018); Jacobs v. N.C. Administrative Office of

the Courts, 780 F.3d 562, 569 (4th Cir. 2015); Mercantile Peninsula Bank v. French, 499 F.3d

345, 352 (4th Cir. 2007); Black & Decker Corp. v. United States, 436 F.3d 431, 442 (4th Cir.

2006); Dennis, 290 F.3d at 644-45. Therefore, in the face of conflicting evidence, such as

competing affidavits, summary judgment is generally not appropriate, because it is the function of

the factfinder to resolve factual disputes, including matters of witness credibility.

In sum, to counter a motion for summary judgment, there must be a genuine dispute as to

material fact. Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 585-86

(1986). “A court can grant summary judgment only if, viewing the evidence in the light most

favorable to the non-moving party, the case presents no genuine issues of material fact and the

moving party demonstrates entitlement to judgment as a matter of law.” Iraq Middle Mkt. Dev.

Found. v. Harmoosh, 848 F.3d 235, 238 (4th Cir. 2017).

Because plaintiffs are self-represented, their submissions are liberally construed. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007); see Fed. R. Civ. P. 8(f) (“All pleadings shall be so

construed as to do substantial justice”); see also Haines v. Kerner, 404 U.S. 519, 520 (1972)

(stating that claims of self-represented litigants are held “to less stringent standards than formal

pleadings drafted by lawyers”); Bala v. Cmm’w of Va. Dep't of Conservation & Recreation, 532

F. App'x 332, 334 (4th Cir. 2013) (same).

But, the court must also abide by the “‘affirmative obligation of the trial judge to prevent

factually unsupported claims and defenses from proceeding to trial.’” Bouchat, 346 F.3d at 526

(internal quotation marks omitted) (quoting Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993),

and citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)).

II. Discussion

In their Motion, defendants seek dismissal under Federal Rules of Civil Procedure 12(b)(1)

and (6), or summary judgment under Rule 56. They argue that (1) Lee failed to exhaust his

administrative remedies; (2) DPSCS is immune from suit in federal court pursuant to the Eleventh

Amendment; (3) Foxwell and Troxell did not personally participate in the alleged wrongdoing; (4)

no First Amendment violation occurred; (5) defendants are entitled to qualified immunity; (6) no

due process violation occurred based on a violation of DPSCS’s policies and procedures; (7) the

consumption of pork was not cruel and unusual punishment; and (8) Lee is not entitled to

preliminary injunctive relief. ECF 20-1.

A. Eleventh Amendment

The Eleventh Amendment provides: “The Judicial power of the United States shall not be

construed to extend to any suit in law or equity, commenced or prosecuted against one of the

United States by Citizens of another state, or by Citizens or subjects of any Foreign State.” The

Eleventh Amendment did not create sovereign immunity. Rather, it preserved the sovereign

immunity that the states enjoyed prior to the formation of the Union. See Alden v. Maine, 527 U.S.

706, 724 (1999); see also Sossamon v. Texas, 563 U.S. 277, 284 (2011).

The preeminent purpose of state sovereign immunity is “to accord states the dignity that is

consistent with their status as sovereign entities[.]” Fed. Mar. Comm’n v. S.C. State Ports Auth.,

535 U.S. 743, 760 (2002). Thus, states generally enjoy immunity from suits brought in federal

court by their own citizens. See Hans v. Louisiana, 134 U.S. 1, 3 (1890); see also Board of

Trustees of University of Alabama v. Garrett, 531 U.S. 356, 363 (2001) (“The ultimate guarantee

of the Eleventh Amendment is that nonconsenting states may not be sued by private individuals in

federal court.”); Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 101-02 (1984). In other

words, under the Eleventh Amendment, a private individual is barred from bringing a suit against

a state in federal court to recover damages, unless the state consents or there is an exception to

sovereign immunity. See Coleman v. Court of Appeals of Md., 556 U.S. 30, 35 (2012) (“A

foundational premise of the federal system is that States, as sovereigns, are immune from suits

for damages, save as they elect to waive that defense.”); Va. Office for Prot. & Advocacy v.

Stewart, 563 U.S. 247 (2011); see also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54-55 (1996)

(“For over a century we have reaffirmed that federal jurisdiction over suits against unconsenting

States was not contemplated by the Constitution when establishing the judicial power of the United

States.”) (internal quotation marks and citation omitted); Edelman v. Jordan, 415 U.S. 651 (1974).

In addition, absent waiver or a valid congressional abrogation of sovereign immunity,

sovereign immunity also bars suit against an instrumentality of a state, sometimes referred to as

an “arm of the state.” See Pennhurst, 465 U.S. at 101-02 (“It is clear, of course, that in the absence

of consent a suit in which the State or one of its agencies or departments is named as the defendant

is proscribed by the Eleventh Amendment.”). The DPSCS is an arm of the state. Md. Code (2017

Repl. Vol.) §§ 2-101, 3-201 of the Correctional Services Article (“C.S.”); see also Clarke v.

Maryland Dep’t of Pub. Safety and Corr. Servs., 316 Fed. App’x 279, 282 (4th. Cir. 2009) (stating

“the Maryland Department of Public Safety and Correctional services is undoubtedly an arm of

the state for purposes of §1983”). Moreover, claims against state employees acting in their official

capacities are also subject to Eleventh Amendment immunity, because a suit against the state actor

is tantamount to a suit against the state itself. Brandon v. Holt, 469 U.S. 464, 471-72 (1985).

The Fourth Circuit has noted three exceptions to the Eleventh Amendment’s prohibition of

suits against a state or an arm of the state. In Lee-Thomas v. Prince George’s Cty. Pub. Sch., 666

F.3d 244 (4th Cir. 2012), the Court said, id. at 249 (internal quotations omitted):

First, Congress may abrogate the States’ Eleventh Amendment immunity when it

both unequivocally intends to do so and acts pursuant to a valid grant of

constitutional authority. Bd. of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356,

363 (2001) . . . . Second, the Eleventh Amendment permits suits for prospective

injunctive relief against state officials acting in violation of federal law. Frew ex

rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004) . . . . Third, a State remains free to

waive its Eleventh Amendment immunity from suit in a federal court. Lapides v.

Bd. of Regents of Univ. Sys. of Ga., 535 U.S. 613, 618 (2002).

Neither the State of Maryland nor DPSCS has waived immunity in federal court for claims

brought pursuant to § 1983. Nor do the exceptions outlined above apply here.

Accordingly, DPSCS is immune from suit and shall be dismissed. Foxwell and Troxell are

also immune from suit for actions taken in their official capacities. As to actions taken in their

individual capacities, the Complaint does not allege any individual acts or omissions on their part.

In any event, plaintiffs’ claims fail, as outlined in Section C, infra.

B. Exhaustion

Defendants raise the affirmative defense that plaintiff Lee has failed to exhaust his

administrative remedies, as required by the Prisoner Litigation Reform Act (“PLRA”), 42 U.S.C.

§ 1997e. The PLRA provides, in pertinent part:

No action shall be brought with respect to prison conditions under section

1983 of this title, or any other Federal law, by a prisoner confined in any jail,

prison, or other correctional facility until such administrative remedies as are

available are exhausted.

42 U.S.C. § 1997e(a).

For purposes of the PLRA, “the term ‘prisoner’ means any person incarcerated or detained

in any facility who is accused of, convicted of, sentenced for, or adjudicated delinquent for,

violations of criminal law or the terms and conditions of parole, probation, pretrial release, or

diversionary program.” 42 U.S.C. § 1997e(h). The phrase “prison conditions” encompasses “all

inmate suits about prison life, whether they involve general circumstances or particular episodes,

and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516,

532 (2002); see Chase v. Peay, 286 F. Supp. 2d 523, 528 (D. Md. 2003), aff’d, 98 Fed. App’x 253

(4th Cir. 2004).3

The doctrine governing exhaustion of administrative remedies has been well established

through administrative law jurisprudence and provides that a plaintiff is not entitled to judicial

relief until the prescribed administrative remedies have been exhausted. Woodford v. Ngo, 548

3 Maryland appellate case law indicates that the administrative grievance procedure does

not encompass “‘every kind of civil matter that could be brought by a DOC inmate.’” Massey v.

Galley, 392 Md. 634, 646, 898 A.2d 951, 958 (2006) (citation omitted). Rather, it applies only to

matters that “relate to or involve a prisoner’s ‘conditions of confinement.’” Id. at 651, 898 A.2d

at 960 (citation omitted). Thus, the grievance procedure does not apply to requests for public

information under the Maryland Public Information Act, see id., nor does it apply to medical

malpractice claims against private medical service providers who treat inmates under contract with

the DOC. See Abramson v. Corr. Med. Servs., Inc., 359 Md. 238, 753 A.2d 501 (2000).

Moreover, the administrative grievance procedure does not apply to claims for

compensation for disabilities resulting from “personal injury arising out of and in the course of [an

inmate’s] work for which wages or a stipulated sum of money was paid by a correctional facility,”

Md. Code, Corr. Servs. § 10-304, for which a claim to a different administrative body, the Sundry

Claims Board, is the exclusive remedy. See Dixon v. DPSCS, 175 Md. App. 384, 927 A.2d 445

(2007). On the other hand, the grievance process does apply to a wide variety of claims that arise

out of the conditions of confinement, even if the grievance process cannot provide a

comprehensive remedy for such claims, such as tort claims of assault and battery against prison

officers. See McCullough v. Wittner, 314 Md. 602, 552 A.2d 881 (1989).

U.S. 81, 88 (2006) (citations omitted). A claim that has not been exhausted may not be considered

by this court. See Jones v. Bock, 549 U.S. 199, 220 (2007). In other words, exhaustion is

mandatory. Ross v. Blake, ___ U.S. ___, 136 S.Ct. 1850, 1857 (2016). Therefore, a court

ordinarily may not excuse a failure to exhaust. Ross, 136 S.Ct. at 1856 (citing Miller v. French,

530 U.S. 327, 337 (2000) (explaining “[t]he mandatory ‘shall’. . . normally creates an obligation

impervious to judicial discretion”)).

The PLRA’s exhaustion requirement serves several purposes. These include “allowing a

prison to address complaints about the program it administers before being subjected to suit,

reducing litigation to the extent complaints are satisfactorily resolved, and improving litigation

that does occur by leading to the preparation of a useful record.” Bock, 549 U.S. at 219; see Moore

v. Bennette, 517 F.3d 717, 725 (4th Cir. 2008) (exhaustion means providing prison officials with

the opportunity to respond to a complaint through proper use of administrative remedies). It is

designed so that prisoners pursue administrative grievances until they receive a final denial of the

claims, appealing through all available stages in the administrative process so that the agency

reaches a decision on the merits. Chase, 286 F. Supp. at 530; Gibbs v. Bureau of Prisons, 986 F.

Supp. 941, 943-44 (D. Md. 1997) (dismissing a federal prisoner’s lawsuit for failure to exhaust,

where plaintiff did not appeal his administrative claim through all four stages of the BOP’s

grievance process); see also Booth v. Churner, 532 U.S. 731, 735 (2001) (affirming dismissal of

prisoner’s claim for failure to exhaust where he “never sought intermediate or full administrative

review after prison authority denied relief”); Thomas v. Woolum, 337 F.3d 720, 726 (6th Cir. 2003)

(noting that a prisoner must appeal administrative rulings “to the highest possible administrative

level”); Pozo v. McCaughtry, 286 F.3d 1022, 1024 (7th Cir. 2002) (prisoner must follow all

administrative steps to meet the exhaustion requirement so that the agency addresses the merits of

the claim, but need not seek judicial review), cert. denied, 537 U.S. 949 (2002).

However, administrative exhaustion under § 1997e(a) is not a jurisdictional requirement

and does not impose a heightened pleading requirement on the prisoner. Rather, the failure to

exhaust administrative remedies is an affirmative defense to be pleaded and proven by defendants.

See Bock, 549 U.S. at 215-216; Anderson v. XYZ Corr. Health Servs., Inc., 407 F.2d 674, 682 (4th

Cir. 2005).

Ordinarily, an inmate must follow the required procedural steps in order to exhaust his

administrative remedies. Moore, 517 F.3d at 725, 729; see Langford v. Couch, 50 F. Supp. 2d

544, 548 (E.D. Va. 1999) (“[T]he . . . PLRA amendment made clear that exhaustion is now

mandatory.”). Exhaustion requires completion of “the administrative review process in

accordance with the applicable procedural rules, including deadlines.” Woodford, 548 U.S. at 88,

93. This requirement is one of “proper exhaustion of administrative remedies, which ‘means using

all steps that the agency holds out, and doing so properly (so that the agency addresses the issues

on the merits).’” Id. at 93 (quoting Pozo, 286 F.3d at 1024) (emphasis in original). But, the court

is “obligated to ensure that any defects in [administrative] exhaustion were not procured from the

action or inaction of prison officials.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th

Cir. 2007); see Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006).

Notably, an inmate need only exhaust “available” remedies. 42 U.S.C. § 1997e(a). The

Fourth Circuit addressed the meaning of “available” remedies in Moore, 517 F. 3d at 725, stating:

[A]n administrative remedy is not considered to have been available if a

prisoner, through no fault of his own, was prevented from availing himself of

it. See Aquilar-Avellaveda v. Terrell, 478 F. 3d 1223, 1225 (10th Cir. 2007);

Kaba v. Stepp, 458 F. 3d 678, 684 (7th Cir. 2006). Conversely, a prisoner does

not exhaust all available remedies simply by failing to follow the required steps

so that remedies that once were available to him no longer are. See Woodford

v. Ngo, 548 U.S. 81, 89 (2006). Rather, to be entitled to bring suit in federal

court, a prisoner must have utilized all available remedies “in accordance with

the applicable procedural rules,” so that prison officials have been given an

opportunity to address the claims administratively. Id. at 87. Having done that,

a prisoner has exhausted his available remedies, even if prison employees do

not respond. See Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006).

More recently, in Ross v. Blake, supra, 136 S.Ct. 1850, the Supreme Court rejected a

“freewheeling approach to exhaustion as inconsistent with the PLRA.” Id. at 1855. In particular,

it rejected a “special circumstances” exception to the exhaustion requirement. Id. at 1856-57. But,

it reiterated that “[a] prisoner need not exhaust remedies if they are not ‘available.’” Id. at 1855.

“[A]n administrative remedy is not considered to have been available if a prisoner, through no

fault of his own, was prevented from availing himself of it.” Moore, 517 F.3d at 725.

The Ross Court outlined three circumstances when an administrative remedy is unavailable

and an inmate’s duty to exhaust available remedies “does not come into play.” 136 S.Ct. at 1859.

First, “an administrative procedure is unavailable when (despite what regulations or guidance

materials may promise) it operates as a simple dead end—with officers unable or consistently

unwilling to provide any relief to aggrieved inmates.” Id. at 1859. Second, “an administrative

scheme might be so opaque that it becomes, practically speaking, incapable of use. In this

situation, some mechanism exists to provide relief, but no ordinary prisoner can discern or navigate

it.” Id. The third circumstance arises when “prison administrators thwart inmates from taking

advantage of a grievance process through machination, misrepresentation, or intimidation.” Id. at

1860.

The DPSCS has an established ARP for use by Maryland State prisoners for “inmate

complaint resolution.” See generally C.S. §§ 10-201 et seq.; Code of Maryland Regulations

(“COMAR”) 12.07.01.01B(1) (defining ARP); OPS.185.0002.02.4 The grievance procedure

applies to the submission of “grievance[s] against . . . official[s] or employee[s] of the Division

of Correction.” C.S. § 10-206(a).

Regulations promulgated by DPSCS concerning the administrative remedy procedure

define a “grievance to include a “complaint of any individual in the custody of the Department of

Correction [(“DOC”)] . . . against any officials or employees of the [DOC] . . . arising from the

circumstances of custody or confinement.” COMAR 12.07.01.01B(8). An inmate “must exhaust”

the ARP process as a condition precedent to further review of the inmate’s grievance. See C.S.

§ 10-206(b); see also COMAR 12.07.01.02.D; OPS.185.0002.02.

To pursue a grievance, a prisoner confined in a Maryland prison may file a grievance with

the IGO against any DOC official or employee. C.S. § 10-206(b). However, if the prison has a

grievance procedure that is approved by the IGO, the prisoner must first follow the institutional

ARP process, before filing a grievance with the IGO. See C.S. § 10-206(b); see also

OPS.185.0002.02. A grievance must be filed in writing, in a format approved by the IGO, or by

use of an ARP form. COMAR 12.07.01.04(A). And, the grievance must be filed within 30 days

of the date on which the incident occurred, or within 30 days of the date the prisoner first gained

knowledge of the incident or injury giving rise to the complaint, whichever is later. COMAR

12.07.01.05A.

4 OPS.185.0002 is an Executive Directive created by DPSCS, titled “Administrative

Remedy Procedure (ARP)” (“ARP Directive”) available for review at

http://itcd.dpscs.state.md.us/PIA. “[A] court may properly take judicial notice of ‘matters of

public record’ and other information that, under Federal Rule of Evidence 201, constitute

‘adjudicative facts.’” Goldfarb v. Mayor & City Council of Baltimore, 791 F.3d 500, 508 (4th Cir.

2015); see also Fed. R. Evid. 201(b)(2) (stating that a “court may judicially notice a fact that is not

subject to reasonable dispute because it . . . can be accurately and readily determined from sources

whose accuracy cannot reasonably be questioned”).

The ARP process consists of multiple steps. For the first step, a prisoner is required to file

his initial ARP with his facility’s “managing official” OPS.185.0002.05C(1). In C.S. § 1-101(k),

a “managing official is defined “as the administrator, director, warden, superintendent, sheriff, or

other individual responsible for the management of a correctional facility.” In the DPSCS, each

facility’s warden is responsible for the ARP at the institutional level. OPS.185.0002.05E.

Moreover, the ARP request must be filed within 30 days of the date on which the incident occurred,

or within 30 days of the date the prisoner first gained knowledge of the incident or injury giving

rise to the complaint, whichever is later. OPS.185.0002.05J.

The second step in the ARP process occurs if the managing official denies a prisoner’s

initial ARP. The prisoner has 30 days to file an appeal with the DPSCS’s Deputy Secretary for

Operations or that official’s designee. OPS.185.0002.05L. For prisoners in DOC facilities, the

Commissioner of Correction is the official to whom this appeal is sent. Id.

If the Commissioner of Correction denies an appeal, the prisoner has 30 days to file a

grievance with the IGO. OPS.185.0002.05D; C.S. § 10-206(a); C.S. § 10-210; COMAR

12.07.01.05B. When filing with the IGO, a prisoner is required to include copies of the following:

the initial request for administrative remedy, the warden’s response to that request, a copy of the

ARP appeal filed with the Commissioner of Correction, and a copy of the Commissioner’s

response. COMAR 12.07.01.04(B)(9)(a). If the grievance is determined to be “wholly lacking in

merit on its face,” the IGO may dismiss it without a hearing. C.S. § 10-207(b)(1); see COMAR

12.07.01.07B.

An order of dismissal constitutes the final decision of the Secretary of DPSCS for purposes

of judicial review. C.S. § 10-207(b)(2)(ii). However, if a hearing is deemed necessary by the

IGO, the hearing is conducted by an administrative law judge with the Maryland Office of

Administrative Hearings. See C.S. § 10-208(2)(c); COMAR 12.07.01.07-.08. The conduct of

such hearings is governed by statute. See C.S. § 10-208; COMAR 12.07.01.07D; see also Md.

Code Ann., State Gov’t §§ 10-101 et seq.

A decision of the administrative law judge denying all relief to the inmate is considered a

final agency determination. C.S. § 10-209(b)(1)(i) & (ii); COMAR 12.07.01.10A. However, if

the ALJ concludes that the inmate’s complaint is wholly or partly meritorious, the decision

constitutes a recommendation to the Secretary of DPSCS, who must make a final agency

determination within fifteen days after receipt of the proposed decision of the administrative law

judge. See C.S. § 10-209(b)(2), (c).

The final agency determination is subject to judicial review in a Maryland circuit court, so

long as the claimant has exhausted his/her remedies. See C.S. § 10-210. An inmate need not,

however, seek judicial review in State court in order to satisfy the PLRA’s administrative

exhaustion requirement. See, e.g., Pozo, 286 F.3d at 1024 (“[A] prisoner who uses all

administrative options that the state offers need not also pursue judicial review in state court.”).

Lee failed to exhaust his administrative remedies regarding the claim asserted here.

Pursuant to COMAR 12.07.01.05A, a grievance must be filed within 30 days of the date on which

the incident occurred, or within 30 days of the date the prisoner first gained knowledge of the

incident or injury giving rise to the complaint, whichever is later. In his opposition to defendants’

Motion, Lee asserts that the remedy procedure is a “dead end due to the officers unwilling [sic] to

provide relief or any type of remedy” and therefore he did not forfeit his right to raise this claim.

ECF 27 at 4-5. This bald assertion, however, does not excuse his failure to file a grievance.

As discussed above, the PLRA requires that inmates exhaust all available remedies

properly. The complete ARP process was available to Lee but it appears that he elected not to

pursue it. Thus, Lee’s claim is subject to dismissal for failure to exhaust.

Even if Lee had exhausted, however, his claim, as outlined below, fails.

C. The Merits of the Claim

To be sure, prisoners retain protections afforded by the First Amendment, including its

directive that no law shall prohibit the free exercise of religion. O’Lone v. Estate of Shabazz, 482

U.S. 342, 348 (1987) (citing Pell v. Procunier, 417 U.S. 817, 822 (1974) and Cruz v. Beto, 405

U.S. 319 (1972) (per curiam)). Therefore, prisoners must be afforded “reasonable” opportunities

to practice their religion. Cruz, 405 U.S. at 322. This includes the “right to a diet consistent with

[the inmate’s] . . . religious scruples.” Ford v. McGinnis, 352 F.3d 582, 597 (2d Cir. 2003). A

prison official violates this right if he intentionally, and without adequate justification, denies an

inmate a diet that is religiously mandated. Lovelace v. Lee, 472 F.3d 124, 199 (4th Cir. 2006).

However, only intentional conduct is actionable under the Free Exercise Clause of the First

Amendment. Lovelace, 472 F.3d at 201. The Fourth Circuit has held that “negligent acts by

officials causing unintended denials of religious rights do not violate the Free Exercise Clause.”

Id. Therefore, a plaintiff “must assert conscious or intentional interference with his free exercise

rights to state a valid claim under § 1983.” Id. Similarly, an official’s negligent act does not

implicate the Due Process Clause. Id.

Here, plaintiffs assert that at least one correctional dietary officer, Sgt. Morris, was aware

that the sausages contained pork but nonetheless chose to send them to the kitchen to be served

the following morning. See ECF 24 at 3-6; ECF 25 at 2; ECF 26. Defendants do not dispute that,

as a result, “sausage that contained 2% or less dehydrated pork stock” was served to ECI inmates

on October 25, 2017. See ECF 9-1 at 3-4. But, they have amply demonstrated that ECI staff

ordered and intended to purchase turkey maple sausage links from a commercial food vendor.

ECF 9-2 at 2-4. Moreover, the vendor was explicitly informed prior to sale that food items may

not contain any pork or pork by-products, in accordance with DPSCS policies. ECF 9-3, ¶6. And,

as Troxell explained, ECI relies on the commercial food vendors to comply with this policy with

respect to the inmate food items supplied to ECI. Id. Unexpectedly, and contrary to the purchase

order that had been placed, the vendor provided sausage with pork in it.

Although Sgt. Morris may have, in fact, decided to send the sausages to the kitchen with

the knowledge that they contained pork, the exhibit presented by plaintiffs indicates that Sgt.

Riddick acted almost immediately to correct the situation by completing a MOR to notify the

morning dietary staff. ECF 24-1, 26-1; 28-1. And, despite not promptly finding Sgt. Riddick’s

MOR and reading the fine print on the sausage labels, Sgt. Twilley immediately stopped serving

the sausages once he discovered that they contained pork stock. Id. Indeed, the sausage product

was not served again and the remaining 180 cases of turkey sausage links were returned to the

commercial vendor. ECF 20-3, ¶9. The named defendants also sought to correct any such error

in the future by advising staff, going forward, “to check labels prior to serving.” See ECF 20-2 at

7, 24.

In sum, there is no dispute of material fact. The evidence, construed in the light most

favorable to plaintiffs, shows that DPSCS does not order pork sausages for inmates. ECF 20-3, ¶

31. Rather, it orders turkey sausages. ECF 20-2 at 3. However, an isolated incident occurred on

October 25, 2017, when sausage containing a small percentage of pork was mistakenly delivered

by the vendor to ECI and served at breakfast. But, plaintiffs never requested a Halal diet. ECF

20-3, ¶ 5. On these facts, there was no First Amendment violation. See Johnson-Bey v. Indiana

Dep’t of Corr., 668 F. Supp. 2d 1122, 1129 (N.D. Ind. 2009) (holding that a single instance of

being fed pork cannot support a claim that inmates were denied their First Amendment right to

freedom of religion or a claim that the food service personnel violated the Fourteenth

Amendment’s equal protection clause); accord Johnson v. Varano, No. 714 C.D. 2010, 2011 WL

10843816, at *6 (Pa. Commw. Ct. Mar. 9, 2011) (stating that “a single incident of being

inadvertently served pork does not deprive [an inmate] of the right to the free exercise of his faith”).

D. Conclusion

Suit against DPSCS shall be dismissed. No genuine issue as to any material fact is

presented and defendants Foxwell and Troxell are entitled to judgment as a matter of law.5

A separate Order follows.

October 31, 2019 /s/

Date Ellen L. Hollander

United States District Judge

5 In light of the disposition, it is not necessary to address defendants’ remaining arguments.