Strickland v. United States of America

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF NORTH CAROLINA (Asheville)

)

JANE ROE, )

)

Plaintiff, )

)

v. ) CIVIL ACTION

) NO. 1:20-cv-00066-WGY

UNITED STATES OF AMERICA; )

JUDICIAL CONFERENCE OF THE )

UNITED STATES; )

UNITED STATES COURT OF APPEALS )

FOR THE FOURTH CIRCUIT; )

JUDICIAL COUNCIL OF THE )

FOURTH CIRCUIT; )

THE HON. ROSLYNN R. MAUSKOPF, )

Chair of the Judicial Conference )

Committee on Judicial Resources; )

ADMINISTRATIVE OFFICE OF THE )

UNITED STATES COURTS; )

JAMES C. DUFF, )

Director of the Administrative )

Office of the United States Courts;)

SHERYL L. WALTER, )

in her individual capacity; )

JOHN DOE(S), )

c/o Office of the General Counsel )

for the Administrative Office of )

the United States Courts, )

THE HON. ROGER L. GREGORY, )

Chief Judge of the Fourth Circuit; )

JAMES N. ISHIDA, )

Circuit Executive of the )

Fourth Circuit and as Secretary )

of the Judicial Council of the )

Fourth Circuit; )

ANTHONY MARTINEZ, )

Federal Public Defender for the )

Western District of North Carolina,)

)

Defendants. )

)

YOUNG, D.J.1 December 30, 2020

MEMORANDUM & ORDER

I. INTRODUCTION

In 2018, Jane Roe (“Roe”) filed two employment dispute

claims alleging sexual harassment, discrimination, and

retaliation under the Consolidated Equal Employment Opportunity

and Employment Dispute Resolution Plan of the United States

Court of Appeals for the Fourth Circuit (“EDR Plan”). Compl.

¶¶ 274-278, ECF No. 1. Roe’s present action alleges four counts

against individuals and entities who participated in the

resolution of her claims under the EDR Plan, violation of the

Fifth Amendment Due Process Clause (Count I), violation of the

Fifth Amendment Equal Protection Clause (Count II), conspiracy

to violate civil rights under 42 U.S.C. § 1985 (Count III), and

neglect to prevent conspiracy to violate civil rights under 42

U.S.C. § 1986 (Count IV). Id. ¶¶ 494-505.

Roe sues Sheryl L. Walter, General Counsel for the

Administrative Office of the United States Courts, the Honorable

Roger L. Gregory, Chief Judge of the Fourth Circuit, James N.

Ishida, Circuit Executive of the Fourth Circuit and Secretary of

the Judicial Council of the Fourth Circuit, and Anthony

1 Of the District of Massachusetts, sitting by designation.

Martinez, Federal Public Defender for the Western District of

North Carolina, in their individual capacities (“Individual

Capacity Defendants”). Id. ¶¶ 23-35. Roe also sues the

following individuals and entities in their official capacities:

the United States of America, the Judicial Conference of the

United States, the Honorable Roslynn R. Mauskopf, Chair of the

Judicial Conference Committee on Judicial Resources, the

Administrative Office of the United States Courts, James C.

Duff, Director of the Administrative Office of the United States

Courts, John Doe(s) c/o Office of the General Counsel for the

Administrative Office of the United States Courts, the United

States Court of Appeals for the Fourth Circuit, the Judicial

Council of the Fourth Circuit, and Anthony Martinez, Federal

Public Defender for the Western District of North Carolina

(“Official Capacity Defendants”).2 Id. Roe does not sue her

alleged harasser in this action. See id.

The Individual Capacity Defendants and Official Capacity

Defendants move to dismiss all counts. This Court GRANTS the

Official Capacity Defendants’ motion to dismiss, ECF No. 42,

because sovereign immunity shields them from suit. This Court

GRANTS the Individual Capacity Defendants’ motions to dismiss,

2 Other than the United States, it is not at all clear that

these entities are even capable of being sued as named. The

Court expresses no opinion thereon in view of the outcome.

ECF Nos. 36, 38, 40, 44, because Roe fails to allege cognizable

claims against them.

A. Factual Background

Roe alleges that while working as a research and writing

attorney for a federal public defender’s office, the First

Assistant to the Public Defender made her uncomfortable with

unwelcomed interest in her personal and professional life, his

insistence that he mentor Roe and drive her home, his leaving

the office at the same time as her, and his alleged retaliation

against her when she did not entertain his interest. Compl.

¶¶ 63-109. This proved particularly precarious because Roe

sought trial experience, and the First Assistant managed the

entire trial unit. Id. ¶ 52.

On July 2, 2018, Roe contacted the Public Defender to tell

him that she would set boundaries with the First Assistant. Id.

¶ 124. The Public Defender asked Roe whether she was

experiencing “‘sexual harassment’” and Roe told the Public

Defender that she was “not using those words yet.” Id. ¶ 125.

She emphasized that she was notifying the Public Defender of the

First Assistant’s behavior and that “she would not have involved

[the Public Defender] if it was not absolutely necessary.” Id.

Later that day, Roe met with the First Assistant to set

boundaries. Id. ¶¶ 127, 129. This conversation did not go

well; the First Assistant ended up “berating” Roe. Id. ¶¶ 127-

133. Roe notified the Public Defender that the First Assistant

“might say something about her,” and she asked the Public

Defender to withhold judgment until he spoke to Roe again. Id.

¶ 133. Three days later, on July 5, 2018, the Public Defender

called the First Assistant and Roe into his office to discuss

what had happened. Id. ¶ 135. Roe stated that she was

uncomfortable and would not participate without first speaking

to the Public Defender alone. Id. ¶ 136. Roe then met with the

Public Defender alone, whose comments, methods, and decisions

she found dismissive and injurious. Id. ¶¶ 136-156. One such

decision was to assign Roe to a different team that nevertheless

reported directly to the First Assistant. Id. ¶ 150.

On July 23, 2018, Roe took leave and sought guidance from

an Administrative Office Fair Employment Opportunity Officer,

who told Roe about the EDR Plan. Id. ¶¶ 157-162; Def. Chief

Judge’s Mem. Supp. Mot. Dismiss, Ex. A (“EDR Plan”), ECF No. 41.

The Officer opined that the “cards were ‘stacked’ against Roe

and in favor of management” and that it might “be less risky for

her personally if she looked for another job.” Id. ¶ 161.

The next day, the Public Defender called Roe, admitted that

he should not have assigned her to a team under the First

Assistant’s supervision, and said that he had made the decision

when he was “‘tired.’” Id. ¶ 163. On July 26, 2018, the Public

Defender changed the assignments so that Roe would receive

assignments from another research and writing attorney, but Roe

was unhappy because she would not receive her own cases and

would have to report to someone else. Id. ¶¶ 165-166. Roe also

alleges that this is the first time the Public Defender

distributed the employee manual, which included an updated

organizational chart requiring research and writing attorneys to

report directly to the First Assistant. Id. ¶ 167.

When Roe spoke with the Appellate Chief about a new

appellate attorney position on July 27, 2018, the Appellate

Chief discouraged her from applying. Id. ¶ 170. Roe was

disappointed because the Appellate Chief previously had

expressed interest in helping Roe gain appellate litigation

experience. Id.

Eventually, the Public Defender moved Roe’s office

workspace away from the First Defendant, but still she did not

feel safe. Id. ¶ 174. Roe alleges that people in the office

were “‘keep[ing] tabs’” on her for the First Assistant. Id.

¶ 179. Roe further asserts that the Administrative Office Fair

Employment Opportunity Officer shared the First Assistant’s

allegedly harassing text messages and emails with the Chief of

Defender Services, who contacted the Deputy Director, who in

turn authorized the Chief of Defender Services to contact the

Public Defender directly. Id. ¶¶ 184-188.

On August 9, 2018, the Public Defender told Roe that he

believed that he had already taken care of the situation, that

Roe had explicitly declined to use the words “sexual harassment”

when he asked her whether she was being sexually harassed, and

that he was frustrated with Roe for going to another party in

the judiciary with her complaints. Id. ¶¶ 195-199. The Public

Defender and Roe then had an exchange about the differences

between her allegations, sexual assault, and sexual harassment,

and this offended Roe because it seemed to trivialize her

allegations. Id. ¶¶ 201-204. The Public Defender asked Roe

what she wanted, and she said that she wanted “to do her job

without being harassed or threatened” and that she wanted to be

an assistant public defender working exclusively on appeals.

Id. ¶ 205. The Public Defender agreed that this made sense

because the First Assistant supervised the trial unit. Id. The

Public Defender did not agree, however, to transfer Roe to a new

duty station. Id. ¶ 209.

Via email on August 10, 2018, Roe contacted the Public

Defender “to confirm the terms of their agreement in writing”

and “requested to work remotely pending his transfer decision,

citing the First Assistant’s sexually harassing and threatening

behaviors towards her.” Id. ¶ 211.

The following week, the Public Defender emailed Roe with

the Circuit Executive and a human resources (“HR”) specialist

copied on the email. Id. ¶ 213. The email informed Roe that

she was to be reclassified as an assistant federal public

defender and stated that the reassignment was “for purposes of

case weight management.” Id. ¶ 215. The email stated that Roe

would continue to work in the trial unit but would report to the

Appellate Chief instead of the First Assistant. Id. ¶ 216. The

email further noted that the Public Defender had reported her

sexual harassment allegation to the Circuit Executive, who had

informed the Chief Judge of the Fourth Circuit. Id. ¶ 217. The

Public Defender concluded the email by telling Roe that he and

the HR specialist would advise her of her rights under the EDR

Plan. Id. ¶ 218.

Roe alleges that the Public Defender reported the

harassment in order to funnel it through the EDR process,

thereby preventing her from seeking guidance about her rights

from the Administrative Office Fair Employment Opportunity

Officer, to insulate himself from liability, and to conspire

with the Office of the General Counsel and the Circuit Executive

to “agree[] on actions and procedures for handling Roe’s

complaint . . . .” Id. ¶¶ 221-227.

From this point forward, Roe had two recurring grievances:

she wanted the Public Defender to be excluded from the EDR

process because he initially had mishandled the situation, and

she felt that the EDR process was both stacked against her and

mishandled at every turn.

Roe alleges that in August 2018 she was “denied a

promotion” because she was not invited to interview for the

appellate attorney position to which she had applied and that

she was not permitted to request an increase in salary or job

responsibility because of her prior reclassification. Id.

¶ 250. Roe contends that this constitutes retaliation because

the reclassification also resulted in a pay cut of “nearly 15

percent.” Id. ¶ 246.

Around the same time, the First Assistant copied Roe on an

email to a client. Id. ¶ 253. Roe found this email harassing

because the language in the email included “coded references” to

language Roe had used in a law review article. Id. Roe also

alleges that the First Assistant continued to stalk her by

waiting for her in the county jail lobby when she went to meet

clients. Id. ¶¶ 254-256.

On September 5, 2018, Roe spoke to the Circuit Executive,

who explained the process under the EDR Plan. Id. ¶¶ 257-259.

Roe was upset that the process was investigating only the sexual

harassment allegations that she made in her August 10, 2018

email and not the Public Defender’s mishandling of the situation

as well. Id. ¶¶ 260-261. Roe later felt demoralized when the

Circuit Executive asked Roe what she “really ‘wanted,’” as Roe

felt that such questions were meant to “sweep her complaints

under the rug.” Id. ¶¶ 262-273.

On September 10, 2018, Roe filed a request for counseling,

a report of wrongful conduct in which she named the First

Assistant and the Public Defender as violators of the EDR Plan,

and a request for the following relief: “An environment free of

harassment, retaliation, and discrimination, the opportunity for

merit-based advancement, and any other appropriate relief.” Id.

¶¶ 274-275. At that time, Roe also asserted that the Public

Defender should not participate in the EDR process because of

his prior mishandling of the situation. Id. ¶¶ 277-278.

Subsequent conversations with the Circuit Executive further

disheartened Roe. On September 18, 2018, the Circuit Executive

told Roe that the Chief Judge had been informed of the

complaint, that he was “‘taken aback’” by Roe’s request to

disqualify the Public Defender, and that the Chief Judge would

have to “‘step in’” if the investigation substantiated the

allegations against the Public Defender. Id. ¶¶ 284-287. When

the Circuit Executive asked Roe what she wanted, Roe was again

insulted by the question, and she continued to lose faith in the

EDR process. Id. ¶¶ 288-298.

On September 28, 2018, the Circuit Executive confirmed in

an email that the HR specialist conducting the investigation

would proceed with one unified investigation of the First

Assistant’s conduct and the Public Defender’s subsequent

actions. Id. ¶ 299. Roe met with the HR specialist and fully

participated in the investigation. Id. ¶¶ 300-301. Later

interactions with the HR specialist, however, did not go as

well. The HR specialist insulted Roe when he asked whether she

had been “friendly” with the First Assistant and whether the

First Assistant’s actions had been sexually motivated. Id.

¶¶ 309, 311. Roe soon concluded that the HR specialist was

insensitive to her concerns and that he had not interviewed the

list of people Roe had asked him to interview. Id. ¶¶ 316-317.

The HR specialist also told Roe that he was investigating the

Public Defender’s mishandling of the situation but not his

alleged retaliation. Id. ¶ 318.

In November 2018, Roe emailed the Circuit Executive about

the status of her investigation because her counseling period

was about to expire and the investigation was not yet complete.

Id. ¶¶ 322-323. Roe copied the Chief Judge on the email. Id.

¶ 322. The Circuit Executive confirmed that the investigation

was a “‘joint investigation’” of her “report of wrongful conduct

and her request for counseling” and that the counseling period

would expire on November 29, 2018 even if the investigation was

not complete. Id. ¶ 325. The Circuit Executive also asked Roe

to “‘articulate precisely what it is’” that she was “‘looking

for’” so that he could relay her thoughts to the Public

Defender. Id. ¶ 331. He also stated, “Reiterating that you

want a safe workplace free of harassment isn’t helpful because

[the Public Defender] already believes that he’s done and is

doing all he can to provide such a workplace for you.” Id.

¶ 332. The following week, the HR specialist again asked Roe

for a “specific list of demands” that would bring the EDR

process to a close. Id. ¶ 333.

Throughout the investigatory process, Roe’s workplace

allegedly became more hostile. Specifically, she cites one

incident on November 16, 2018 in which her team mocked and

belittled her after she did not attend a team meeting. Id.

¶¶ 348-354.

On November 21, 2018, Roe sent the Circuit Executive an

email stating that she wanted to be transferred out of the

Public Defender’s Office and asking for help in securing a new

position. Id. ¶ 355. On November 25, 2018, the Circuit

Executive asked Roe for a copy of her resume and told her that

he would “‘make inquiries.’” Id. ¶ 357.

Roe spoke to the Circuit Executive approximately one week

later, who informed her that the investigation was finished but

that he was sending it back to the HR specialist so that the HR

specialist could add recommendations. Id. ¶¶ 262-264. The

Circuit Executive explained that the report would be given to

the Public Defender unless the investigation substantiated the

claims against the Public Defender. Id. ¶ 366. During this

conversation, Roe asked about the exclusion of her retaliation

claim from the investigation. Id. ¶ 367. The Circuit Executive

stated that “he could ‘not remember exactly when’ Roe had raised

an allegation of retaliation, and so he was not sure whether

retaliation was part of the investigation.” Id. ¶ 368. Roe

reminded the Circuit Executive that she had filed a written

claim of retaliation against the Public Defender. Id. ¶ 369.

In a telephone call on November 28, 2018, the Circuit

Executive told Roe that the HR specialist was including

information about her retaliation claim in the investigation

report. Id. ¶ 385. Roe then requested a thirty-day extension

of her counseling period from the Chief Judge. Id. ¶ 387. On

November 30, 2018, the Chief Judge granted an extension until

January 16, 2019. Id. ¶ 388.

On December 14, 2018, the Circuit Executive asked Roe to

consider mediation during her counseling period. Id. ¶ 389. On

January 11, 2019, the Circuit Executive told Roe that he had

received the investigation report. Id. ¶ 393. Five days later,

the Circuit Executive informed Roe that her counseling period

had expired despite her second request for an extension and that

the Chief Judge intended to deny her request to disqualify the

Public Defender. Id. ¶¶ 394-395. Roe disputes whether this

decision was made before or after the investigation had

finished. Id. ¶ 396. The Circuit Executive also told Roe that

she would not receive a copy of the investigation report because

the Office of the General Counsel advised against distributing

such an “internal document.” Id. ¶ 398.

On January 22, 2019, Roe submitted a second transfer

request. Id. ¶ 405. Roe filed a request for mediation under

the EDR Plan on January 30, 2019, id. ¶ 411, and Roe met with

the appointed mediator the following week, id. ¶ 413. Several

days later, the mediator said that the Public Defender would

allow Roe to transfer to another duty station but that she would

have to share an office with an intern. Id. ¶ 418. Roe did not

find this satisfactory, and she said that a duty station

transfer would not accomplish anything if the underlying

harassment and retaliation went unchecked. Id. ¶¶ 419-425.

On February 14, 2019, Roe met with the newly selected

Judicial Integrity Officer who encouraged Roe to use the EDR

process and to be clear about her desired remedies. Id. ¶¶ 427,

437. Roe details a conversation with the Judicial Integrity

Officer during which the Officer questioned Roe’s understanding

of the EDR Plan, explained its deficiencies, confirmed the norm

of withholding investigation reports from the individuals

involved, and noted how, in that Officer’s experience, she had

never seen a colorable sexual harassment claim. Id. ¶¶ 427-444.

Roe believed that “proceeding to a final hearing would be

futile,” id. ¶ 447, and she was unwilling to be cross-examined

by the Public Defender and the First Assistant, a permissible

option under the EDR Plan, id. ¶ 448. Roe later submitted more

detailed factual allegations to the Circuit Executive, which

“contained highly sensitive details, including information that

could potentially expose other employees to retaliation . . . .”

Id. ¶ 449. Roe anticipated that these detailed allegations

would be kept confidential and requested that they be redacted.

Id. ¶ 450. The Office of the General Counsel assured the

Circuit Executive that the additional allegations were “‘not

subject to redaction’” because the Public Defender was

prohibited from retaliating against employees for participating

in an EDR process. Id. ¶ 451. The Circuit Executive then

forwarded the detailed allegations to the Chief Judge, the

mediator, and the Public Defender. Id. Roe later submitted a

renewed request to disqualify the Public Defender because Roe

had never received a written denial of her initial request. Id.

¶ 453.

On February 16, 2019, Roe met with the mediator, who agreed

to help Roe secure a Fourth Circuit clerkship because the

transfer order to another district seemed unlikely. Id. ¶¶ 454-

458. On March 8, 2019, Roe interviewed and received an on-the-

spot offer with a Fourth Circuit judge. Id. ¶ 459. In a

subsequent meeting with the mediator, Roe told him that “the

clerkship was a ‘very nicely packaged constructive discharge,’”

and the two had a falling out. Id. ¶¶ 462-463. Roe formally

resigned from the Public Defender’s Office on March 15, 2019.

Id. ¶ 464.

On June 4, 2019, the Circuit Executive emailed Roe with a

copy to the Chief Judge. Id. ¶ 483. The email informed Roe

that “‘disciplinary action was taken last week as a result of

[her] report of wrongful conduct,’” but that the Circuit

Executive could not “‘reveal the nature of the action because it

is a disciplinary matter.’” Id. ¶ 484.

B. Procedural History

Roe filed this action in the United States District Court

for the Western District of North Carolina on March 3, 2020.

See generally Compl. The case was assigned to this Court on

April 17, 2020. Designation and Assignment Order, ECF No. 28.

The Individual Capacity Defendants and Official Capacity

Defendants filed motions to dismiss all counts with prejudice on

June 5, 2020. Def. General Counsel Mot. Dismiss, ECF No. 36;

Def. General Counsel’s Mem. Supp. Mot. Dismiss, ECF No. 37; Def.

Circuit Executive Mot. Dismiss, ECF No. 38; Def. Circuit

Executive’s Mem. Supp. Mot. Dismiss, ECF No. 39; Def. Chief

Judge Mot. Dismiss, ECF No. 40; Def. Chief Judge’s Mem. Supp.

Mot. Dismiss, ECF No. 41; Official Capacity Mot. Dismiss, ECF

No. 42; Mem. Supp. Official Capacity Mot. Dismiss, ECF No. 43;

Def. Federal Defender Mot. Dismiss, ECF No. 44; Def. Federal

Defender’s Mem. Supp. Mot. Dismiss, ECF No. 45.

The parties have fully briefed these motions. Pl.’s Opp’n

Individual Capacity Defs.’ Mot. Dismiss, ECF No. 48; Pl.’s Opp’n

Official Capacity Defs.’ Mot. Dismiss (“Pl.’s Opp’n Official

Capacity”), ECF No. 49; Def. Federal Defender’s Reply Supp. Mot.

Dismiss, ECF No. 52; Individual Capacity Reply Supp. Mot.

Dismiss, ECF No. 53; Official Capacity Reply Supp. Mot. Dismiss,

ECF No. 54; Pl.’s Surreply Opp’n Mots. Dismiss (“Pl.’s

Surreply”), ECF No. 100; Pl.’s Notice Suppl. Authority, ECF No.

101. This Court held a virtual motion hearing on November 23,

2020. Minute Order (Nov. 23, 2020).

II. SOVEREIGN IMMUNITY

Absent a waiver, sovereign immunity shields from suit not

only the United States but also its “agencies,” FDIC v. Meyer,

510 U.S. 471, 475 (1994), and “officials” acting in their

official capacities, Kentucky v. Graham, 473 U.S. 159, 165-66

(1985). When the United States consents to be sued, “the terms

of its consent to be sued in any court define that court’s

jurisdiction to entertain the suit.” United States v. Sherwood,

312 U.S. 584, 586 (1941).

A waiver of sovereign immunity “must be unequivocally

expressed in statutory text . . . and will not be implied.”

Lane v. Pena, 518 U.S. 187, 192 (1996); Library of Cong. v.

Shaw, 478 U.S. 310, 319 (1986) (“[C]ongressional silence does

not permit us to read the provision as the requisite waiver of

the Government’s immunity . . . .”). Courts construe

ambiguities “strictly in favor of the sovereign.” Shaw, 478

U.S. at 318. Because “[s]overeign immunity is jurisdictional in

nature,” Meyer, 510 U.S. at 475, “a court finding that a party

is entitled to sovereign immunity must dismiss the action for

lack of subject-matter jurisdiction,” Cunningham v. General

Dynamics Info. Tech., 888 F.3d 640, 649 (4th Cir. 2018); see

Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time

that it lacks subject-matter jurisdiction, the court must

dismiss the action.”).

Roe argues that three statutes waive the Official Capacity

Defendants’ sovereign immunity.3 Pl.’s Opp’n Official Capacity

16-20. She points first to 28 U.S.C. § 1331. Id. 16-17.

Section 1331, however, “is not a general waiver of sovereign

immunity.” Randall v. United States, 95 F.3d 339, 345 (4th Cir.

1996) (quotations omitted) (quoting Coggeshall Dev. Corp. v.

3 At the motion hearing, counsel directed this Court’s

attention to Drone v. Duff, Civil Case No. 3:17-cv-332, 2017 WL

6383607 (E.D. Va. Dec. 14, 2017). As applicable here, Drone

explains that “Bivens did not waive the federal government’s

sovereign immunity . . . .” Id. at *3 n.9 (citing Randall v.

United States, 95 F.3d 339, 345 (4th Cir. 1996)).

Diamond, 884 F.2d 1, 4 (1st Cir. 1989)). That statute “merely

establishes a subject matter that is within the competence of

federal courts to entertain.” Id. “It does not,” as Roe

suggests, “expand the power of those courts in terms of the

parties over whom it may exercise jurisdiction.” Diamond, 884

F.2d at 4. Accordingly, section 1331 does not waive the

Official Capacity Defendants’ sovereign immunity.

Second, Roe asserts that the Back Pay Act waives the

Official Capacity Defendants’ sovereign immunity. Pl.’s Opp’n

Official Capacity 17. But the Back Pay Act’s waiver of

sovereign immunity has a statutory prerequisite: only employees

who are “found by appropriate authority under applicable

law . . . to have been affected by an unjustified or unwarranted

personnel action which has resulted in the withdrawal or

reduction of all or part of the pay, allowances, or

differentials of the employee” may recover back pay under the

Back Pay Act. 5 U.S.C. § 5596(b)(1). Appropriate authorities

are entities which “have the authority to review the agency’s

determination,” including the agency itself, the Merit Systems

Protection Board, and the United States Court of Appeals for the

Federal Circuit. United States v. Fausto, 484 U.S. 439, 454

(1988). Here no appropriate authority has found that Roe is

entitled to back pay. Thus the Back Pay Act does not waive the

Official Capacity Defendants’ sovereign immunity. This renders

it unnecessary to address whether Congress intended to include

entities such as the Official Capacity Defendants within the

definition of “agency” under the Back Pay Act, see 5 U.S.C.

§ 5596(a), and this Court expresses no view on that question.

Finally, Roe avers that section 702 of the Administrative

Procedure Act (“APA”) waives the Official Capacity Defendants’

sovereign immunity. Pl.’s Opp’n Official Capacity 17. Although

section 702 waives sovereign immunity with respect to agencies,

5 U.S.C. § 702, “the courts of the United States” are not

agencies, id. § 701(b)(1)(B).

Whether Congress intended to include entities such as the

Official Capacity Defendants within the APA “courts of the

United States” exemption is a matter of first impression in this

circuit. In this regard, both parties direct this Court’s

attention to the opinion of the United States Court of Appeals

for the District of Columbia Circuit in Washington Legal

Foundation v. United States Sentencing Commission, though they

disagree over what that court meant when it said:

Over the years, virtually every case interpreting the APA

exemption for “the courts of the United States” has held

that the exemption applies to the entire judicial branch --

at least to entities within the judicial branch that

perform functions that would otherwise be performed by

courts.

17 F.3d 1446, 1449 (D.C. Cir. 1994). Roe argues that the second

clause narrows the first, Pl.’s Opp’n Official Capacity 17; the

Official Capacity Defendants maintain that the first clause

means what it says and says what it means, Mem. Supp. Official

Capacity Mot. Dismiss 6. The Official Capacity Defendants

further liken the Federal Public Defender’s Office to the

Judicial Conference of the United States and the Probation

Service, both of which the D.C. Circuit has deemed to fall

within “the courts of the United States” exemption.4 Official

Capacity Reply 3-4 (citing Washington Legal, 17 F.3d at 1449).

Although the question is unresolved in this circuit, in an

unpublished opinion the Ninth Circuit held that “the APA does

not apply to the Federal Public Defender’s Office, which is a

part of the federal judiciary.” Demello v. Ney, 185 F.3d 866,

*1 (9th Cir. 1999) (unpublished table decision). This Court is

persuaded by the opinion of the Ninth Circuit. The District

Courts may make recommendations concerning nominees for the

position of Federal Public Defender, and the Courts of Appeals

appoint, compensate, and remove Federal Public Defenders. 18

U.S.C. § 3006A(g)(2)(A). Against that backdrop, this Court

rules that the Official Capacity Defendants are part of the

4 In Drone, a case which counsel raised at the motion

hearing, the court similarly indicated that employees of the

Probation Service and the United States District Court for the

Eastern District of Virginia were federal judicial employees

exempted from the APA’s waiver of sovereign immunity. See Civil

Case No. 3:17-cv-332, 2017 WL 6383607, at *3 & n.9.

federal judiciary for purposes of the APA, and that the APA

therefore does not waive the Official Capacity Defendants’

sovereign immunity.5 See Demello, 185 F.3d at *1.

Accordingly, the doctrine of sovereign immunity shields the

Official Capacity Defendants from suit. This Court pauses at

this juncture to note that because it lacks subject-matter

jurisdiction over the Official Capacity Defendants, see

Cunningham, 888 F.3d at 649, and because Roe fails to allege a

cognizable constitutional claim against them, as discussed

below, Roe is left with no prospect of equitable relief against

the Official Capacity Defendants, see Bivens v. Six Unknown

Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 400

(Harlan, J., concurring) (“However broad a federal court’s

discretion concerning equitable remedies, it is absolutely

clear . . . that in a nondiversity suit a federal court’s power

to grant even equitable relief depends on the presence of a

substantive right derived from federal law.”). The Official

Capacity Defendants’ Motion to Dismiss, ECF No. 42, is GRANTED.

5 This Court notes that even if the APA were to waive the

Official Capacity Defendants’ sovereign immunity, Roe could not

recover damages from them because section 702 permits judicial

review of “agency action” only as to relief “other than money

damages.” 5 U.S.C. § 702; Demello, 185 F.3d at *1 n.4.

III. FAILURE TO STATE A CLAIM

Seeking to recover against the Individual Capacity

Defendants for violation of her constitutional rights, Roe

analogizes this case to Davis v. Passman, a Bivens action in

which the Supreme Court allowed the plaintiff to recover for

unconstitutional sex discrimination. See Pl.’s Surreply 15-23

(citing Davis v. Passman, 442 U.S. 228 (1979)). Unlike the

plaintiff in Davis, however, Roe fails to allege cognizable

constitutional claims. This Court therefore need not further

distinguish this case from Davis, and it need not limn the many

additional factors that caution against recognizing a new Bivens

action. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1857-58 (2017).

A. Pleading Standard

To survive a motion to dismiss, a complaint must include

factual allegations sufficient “to state a claim to relief that

is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 570 (2007); see Fed. R. Civ. P. 12(b)(6). Although courts

must “accept as true all well-pleaded allegations” and “view the

complaint in a light most favorable to the plaintiff,” Mylan

Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.

1993), courts “need not accept the [plaintiff’s] legal

conclusions drawn from the facts,” nor need they “accept as true

unwarranted inferences, unreasonable conclusions, or arguments,”

Eastern Shore Markets, Inc. v. J.D. Assocs. Ltd. P’ship, 213

F.3d 175, 180 (4th Cir. 2000).

B. Roe’s Constitutional Claims Lack Merit

As a threshold matter, “a plaintiff seeking a damages

remedy under the Constitution must first demonstrate that his

constitutional rights have been violated.” Davis, 442 U.S. at

248. Because Roe fails to state a cognizable constitutional

claim, this Court’s analysis begins and ends with this threshold

defect.

1. Count I – Fifth Amendment Procedural Due Process

A plaintiff pursuing a Fifth Amendment Procedural Due

Process claim must allege that she (1) lost “something that fits

into one of the three protected categories: life, liberty, or

property” and (2) did not “receive the minimum measure of

procedural protection warranted under the circumstances.”

Mallette v. Arlington Cty. Employees’ Supplemental Ret. Sys. II,

91 F.3d 630, 634 (4th Cir. 1996). Where, as here, the plaintiff

fails to plead the first element, this Court need not reach the

second. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S.

40, 59 (1999) (“The first inquiry in every due process challenge

is whether the plaintiff has been deprived of a protected

interest in ‘property’ or ‘liberty . . . .’ Only after finding

the deprivation of a protected interest do we look to see if the

[government’s] procedures comport with due process.” (citations

omitted)). Because Roe fails to allege that the Individual

Capacity Defendants deprived her of a constitutionally protected

interest, this Court GRANTS the Individual Capacity Defendants’

motions to dismiss Count I.6

a) Purported Liberty Interest

Although the Supreme Court has not defined “‘liberty’ with

any great precision, that term is not confined to mere freedom

from bodily restraint.” Bolling v. Sharpe, 347 U.S. 497, 499,

(1954). “Liberty” also denotes the right “to contract, to

engage in any of the common occupations of life, to acquire

useful knowledge, to marry, establish a home and bring up

children, to worship God according to the dictates of his own

conscience, and . . . to enjoy those privileges long

recognized . . . as essential to the orderly pursuit of

happiness by free men.” Board of Regents of State Colls. v.

Roth, 408 U.S. 564, 572 (1972) (quotation omitted) (quoting

Meyer v. Nebraska, 262 U.S. 390, 399 (1923)).

In determining whether the interest that a plaintiff

alleges is a protected liberty interest under the Fifth

Amendment, courts also consider the Supreme Court’s Fourteenth

Amendment jurisprudence. See Paul v. Davis, 424 U.S. 693, 702

6 This Court has reviewed each of the cases on which Roe

predicates her purported liberty and property interests, and it

dismisses out of hand those not analyzed here.

n.3 (1976) (“Surely the Fourteenth Amendment imposes no more

stringent requirements upon state officials than does the Fifth

upon their federal counterparts. We thus consider this Court’s

decisions interpreting either Clause as relevant to our

examination of respondent’s claim.”).

Here, Roe purports to have a liberty interest “in being

free from unlawful discrimination,” which she alternatively

labels “a right to be free of sex discrimination in her

workplace.” Pl.’s Opp’n Official Capacity 22-23.7 In advancing

this purported intertest, Roe primarily relies on Bolling v.

Sharpe, 347 U.S. 497 (1954) and Beardsley v. Webb, 30 F.3d 524

(4th Cir. 1994). Id. Bolling held that “[s]egregation in

public education is not reasonably related to any proper

governmental objective, and thus it imposes on Negro children of

the District of Columbia a burden that constitutes an arbitrary

deprivation of their liberty in violation of the Due Process

Clause.” 347 U.S. at 500. Roe fails to explain how Bolling

evinces such a sweeping protected “liberty interest in being

free from unlawful discrimination.” Pl.’s Opp’n Official

Capacity 23. Moreover, Roe makes no attempt to fashion this

7 Although this Court has granted the Official Capacity

Defendants’ motion to dismiss, this Court continues to cite

Roe’s opposition to their motion to dismiss because that

opposition best develops Roe’s arguments on the merits of Count

I.

purported interest as any type of protected interest identified

in Roth, see 408 U.S. at 572, nor does she find reprieve in

Fourteenth Amendment jurisprudence, see Paul, 424 U.S. at 702.

Roe’s bald reliance on Bolling, without more, does not suffice

to plead the existence of a protected liberty interest.

Beardsley, the other case on which Roe relies, did not involve a

due process claim at all. See generally 30 F.3d at 524. This

Court therefore holds that Roe fails to allege that the

Individual Capacity Defendants deprived her of a protected

liberty interest.

b) Purported Property Interest

Under the Fifth Amendment Due Process Clause, protected

property interests “are not created by the Constitution” but

rather are “created and their dimensions are defined by existing

rules or understandings that stem from an independent source

such as state law -- rules or understandings that secure certain

benefits and that support claims of entitlement to those

benefits.” Roth, 408 U.S. at 577. Thus, the “hallmark” of

protected property interests is “individual entitlement grounded

in state law . . . .” Logan v. Zimmerman Brush Co., 455 U.S.

422, 430 (1982); see Roth, 408 U.S. at 577 (“To have a property

interest in a benefit, a person clearly must have more than an

abstract need or desire for it. He must have more than a

unilateral expectation of it. He must, instead, have a

legitimate claim of entitlement to it.”).

Here, Roe’s only purported property interest is “in the

[EDR] Plan’s terms as a condition of her employment,” though she

separately alludes to other procedural safeguards, such as her

“right to prompt and effective remedial action on her

complaints” and “right to meaningful review and remedies.”

Pl.’s Opp’n Official Capacity 22; see Pl.’s Notice Suppl.

Authority 1-2 (citing rights afforded under EDR Plan). In

support of this asserted interest, Roe primarily relies on the

Supreme Court’s decision in Vitarelli v. Seaton, 359 U.S. 535

(1959), and on two out-of-circuit cases, Johnson v. Mishler, 526

F.2d 364 (2d Cir. 1975) (per curiam) and Paige v. Harris, 584

F.2d 178 (7th Cir. 1978). Pl.’s Opp’n Official Capacity 23.

In Vitarelli v. Seaton, the Supreme Court held that the

Department of the Interior violated its own regulations when it

suspended without pay an educator who allegedly sympathized with

members of the Communist Party. 359 U.S. at 539. For present

purposes, Vitarelli falls flat. Since the Department of

Interior violated its own regulations in Vitarelli, the Supreme

Court declined to reach the constitutional due process issue.

Id. at 540. Accordingly, Roe’s reliance on Vitarelli to support

her assertion of a constitutionally protected property right is

misplaced.

Similarly, in Johnson v. Mishler, the Second Circuit

refused to reach the constitutional due process issue because

the plaintiff had been denied the “built-in due process

procedures” of the Regulations of the Probation Department. 526

F.2d at 366. Insofar as Roe relies on Johnson to identify a

constitutionally protected “property interest in the [EDR]

Plan’s terms as a condition of her employment,” Pl.’s Opp’n

Official Capacity 22, the case simply does not support her

attempt.

Finally, in Paige v. Harris, the Seventh Circuit held that

because the plaintiff “possessed a property interest in his

continued employment with HUD,” there were “sufficient grounds

to require a hearing on his discharge.” 584 F.2d at 181. But

here, Roe explicitly does not assert that she had a

“constitutionally protected interest in continued

employment . . . .” Pl.’s Opp’n Official Capacity 22 n.22.

Paige, then, is inapposite.

To clinch the matter, as the Supreme Court explained,

Process is not an end in itself. Its constitutional

purpose is to protect a substantive interest to which the

individual has a legitimate claim of entitlement . . . .

The State may choose to require procedures for reasons

other than protection against deprivation of substantive

rights, of course, but in making that choice the State does

not create an independent substantive right.

Olim v. Wakinekona, 461 U.S. 238, 250 (1983) (citations and

quotations omitted). “The categories of substance and procedure

are distinct. Were the rule otherwise, the Clause would be

reduced to a mere tautology. ‘Property’ cannot be defined by

the procedures provided for its deprivation any more than can

life or liberty.” Cleveland Bd. of Educ. v. Loudermill 470 U.S.

532, 541 (1985). Relying on these Supreme Court precedents, the

Fourth Circuit deemed “meritless” the argument that a former

government employee had a constitutionally protected property

interest in his employer’s grievance procedures. Garraghty v.

Commonwealth of Va., Dep’t of Corr., 52 F.3d 1274, 1284 (4th

Cir. 1995); accord United of Omaha Life Ins. Co. v. Solomon, 960

F.2d 31, 34 (6th Cir. 1992); Curtis Ambulance of Fla., Inc. v.

Board of Cty. Comm’rs of Shawnee Cty., 811 F.2d 1371, 1377 (10th

Cir. 1987); Clemente v. United States, 766 F.2d 1358, 1364 (9th

Cir. 1985).

Here, because Roe fashions her purported property interest

as an “interest in the [EDR] Plan’s terms as a condition of her

employment,” and more specifically as rights to “prompt and

effective remedial action on her complaints” and “meaningful

review and remedies,” Pl.’s Opp’n Official Capacity 22-23, this

Court concludes that Roe fails to allege that the Individual

Capacity Defendants deprived her of a protected property

interest.

2. Count II – Fifth Amendment Equal Protection

The Supreme Court has held that the “Due Process Clause of

the Fifth Amendment forbids the Federal Government to deny equal

protection of the laws.” Davis, 442 U.S. at 234. The Supreme

Court has recognized these equal protection claims in two

distinct situations: (1) when a classification is made on the

basis of sex and (2) when the state action results in a

disparate impact that can be traced to a discriminatory purpose.

See generally, e.g., United States v. Virginia, 518 U.S. 515

(1996); Personnel Adm’r of Massachusetts v. Feeney, 442 U.S. 256

(1979) (“‘Discriminatory purpose,’ however, implies more than

intent as volition or intent as awareness of

consequences . . . . It implies that the decisionmaker . . .

selected or reaffirmed a particular course of action at least in

part ‘because of,’ not merely ‘in spite of,’ its adverse effects

upon an identifiable group.”); Reed v. Reed, 404 U.S. 71 (1971).

To survive heightened scrutiny in such situations, the

classification “must serve important governmental objectives and

must be substantially related to achievement of those

objectives.” Davis, 442 U.S. at 234-35 (quotation omitted).

Roe does not plead or argue such a case. Rather, Roe

attempts to graft precedent interpreting Title VII onto the

Fifth Amendment. Pl.’s Opp’n Individual Capacity Defs.’ Mot.

Dismiss 2 (“In evaluating these claims, courts apply the well-

established standards developed in similar litigation under

Title VII of the Civil Rights Act of 1964.”). But see Yatvin v.

Madison Metro. Sch. Dist., 840 F.2d 412, 418 (7th Cir. 1988)

(“Although sex discrimination by state agencies has been held to

violate the equal protection clause, retaliating against a

person for filing charges of sex discrimination is not the same

as discriminating against a person on grounds of sex -- unless,

perhaps, those are the only complainants against whom the

employer retaliates, and even in that case the retaliation would

only be evidence of discrimination, not discrimination per se.”

(citations omitted)). Consequently, this case presents a matter

of first impression in this circuit: viz, whether a Title VII

theory of discrimination on the basis of sex states a claim for

discrimination on the basis of sex under the Fifth Amendment

Equal Protection Clause. This Court holds that it does not.

The Fourth Circuit has held that courts may apply Title VII

standards to section 1983 claims. Beardsley, 30 F.3d at 529;

see Feminist Majority Found. v. Hurley, 911 F.3d 674, 703 (4th

Cir. 2018) (applying Title VII standards to section 1983 claim).

See also Bohen v. City of East Chicago, 799 F.2d 1180, 1187 (7th

Cir. 1986) (applying Title VII standards to section 1983 claim

but noting the distinction between “the ultimate inquiry” in an

equal protection case, “whether the sexual harassment

constitutes intentional discrimination,” and the inquiry “under

Title VII as to whether or not the sexual harassment altered the

conditions of the victim’s employment”). Extrapolating from

Beardsley and other section 1983 cases, Roe asserts that courts

must also apply Title VII standards to free-standing Fifth

Amendment claims. See Pl.’s Opp’n Official Capacity 24-25;

Pl.’s Surreply 15.

Contrary to Roe’s assertion, the Fourth Circuit has not

held that courts must apply Title VII standards to free-standing

Fifth Amendment claims. To the contrary, in Wilcox v. Lyons,8

the Fourth Circuit rejected a similar attempt to graft Title VII

standards onto a free-standing Fourteenth Amendment equal

protection claim. 970 F.3d 452, 460 (4th Cir. 2020). In

Wilcox, the court considered whether a former public employee’s

8 During oral argument, plaintiff’s counsel suggested Wilcox

is questionable authority as it came down after the filing of

the present complaint and its author was a judge whom Roe had

designated as a source of evidence in this case.

This offhand ad hominem comment is unworthy of a skilled

attorney and this Court is deaf as an adder to such suggestion,

utterly disregarding it. The Court treats it as a slip of the

tongue, uttered before his brain got into gear.

There is simply no place in our courts for groundless

speculation, fantastical conspiracy theories, or faux facts.

Our Cannons of Ethics and Fed. R. Civ. P. 11 forbid it.

Hon. Richard Arnold of the Eighth Circuit, perhaps the

finest judge of the twentieth century, said to a group of

lawyers and judges, “There has to be a safe place. And we have

to be it.” In the present context, that means advocacy consists

of straight talk, based on facts. After all, “facts are like

flint” as the judge for whom I clerked now over half a century

ago (Hon. Raymond S. Wilkins, Chief Justice, Supreme Judicial

Court of Massachusetts) was fond of saying. Remember it.

allegation that a state employer fired her in retaliation for

her complaint of sexual harassment and discrimination was

sufficient to state a claim for sexual discrimination under the

Fourteenth Amendment Equal Protection Clause. 970 F.3d at 454-

55. There, as here, the plaintiff did not allege that she was

fired because of her sex, but rather that she suffered adverse

consequences based on her response to the harassing behavior.

Id. at 460-61. The Fourth Circuit held:

The “right to be free from retaliation for protesting

sexual harassment and sex discrimination” upon which Wilcox

solely relies “is a right created by Title VII, not the

equal protection clause.” Gray v. Lacke, 885 F.2d 399, 414

(7th Cir. 1989); see also Boyd v. Ill. State Police, 384

F.3d 888, 898 (7th Cir. 2004) (“[T]he right to be free from

retaliation may be vindicated under the First Amendment or

Title VII, but not the equal protection clause.”). To be

clear: these existing legal avenues for challenging public

employer retaliation remain open to employees; we simply

decline to create a new one under the auspices of the

Fourteenth Amendment [Equal Protection Clause].

Id. at 461. Here, Roe’s complaint is devoid of any allegation

that women are treated differently than men under the EDR Plan,

and Roe does not allege that the actions taken against her were

on the basis of her sex. Instead, Roe theorizes that the

Individual Capacity Defendants discriminated against her on the

basis of sex when they mishandled her sexual harassment

complaints, ultimately leading to retaliation and constructive

discharge. Compl. ¶ 498. To condone such a theory would be to

graft Title VII standards onto the Fifth Amendment, when in

Wilcox the Fourth Circuit rejected such a theory with respect to

the Fourteenth Amendment. Viewed in this light, Roe’s theory is

incompatible with Wilcox, which explained that “[r]etaliation

for reporting alleged sex discrimination imposes negative

consequences on an employee because of the employee’s report,

not because of the employee’s sex.” See 970 F.3d at 460.

Supreme Court precedent supports the conclusion that only

theories of traditional class-based discrimination are

cognizable under the Fifth Amendment Equal Protection Clause.

In Davis, a congressman discharged the plaintiff based on the

plaintiff’s sex. 442 U.S. at 230. Although the plaintiff “was

‘able, energetic and a very hard worker . . . it was essential

that the understudy to [the congressman’s] Administrative

Assistant be a man.’” Id. The Supreme Court held that the

plaintiff could bring a Bivens action for the congressman’s

violation of the Fifth Amendment Equal Protection Clause. Id.

at 234. Since the congressman’s classification was so clearly

on the basis of gender, the Davis Court applied the traditional

class-based equal protection framework. See id. at 234-25.

Although Roe reads Davis as allowing constitutional claims to

proceed under Title VII standards, such circumstances were not

before the Supreme Court in Davis, and Wilcox suggests that such

an extension of Davis would be improper. Cf. id.; Wilcox, 970

F.3d at 460-61.

This Court rejects Roe’s attempt to extend Davis,

particularly in light of the Fourth Circuit’s decision in

Wilcox. This Court therefore GRANTS the Individual Capacity

Defendants’ motions to dismiss Count II.9

C. Roe’s Statutory Claims Lack Merit

To survive a motion to dismiss, a plaintiff pursuing a

claim for conspiracy to deny equal protection of the laws under

42 U.S.C. § 1985(3) must “plead specific facts in a

nonconclusory fashion” as to:

(1) a conspiracy of two or more persons, (2) who are

motivated by a specific class-based, invidiously

discriminatory animus to (3) deprive the plaintiff of the

equal enjoyment of rights secured by the law to all, (4)

and which results in injury to the plaintiff as (5) a

consequence of an overt act committed by the defendants in

connection with the conspiracy.

9 This Court dismisses Roe’s action with prejudice -- rather

than without prejudice and leave to amend -- because such leave

would be futile. If Roe properly has pled any claim, it is a

First Amendment retaliation claim. See Wilcox, 970 F.3d at 461

(quoting Boyd, 384 F.3d at 898 (“[T]he right to be free from

retaliation may be vindicated under the First Amendment or Title

VII, but not the equal protection clause.”)). The Supreme

Court, however, has never recognized a Bivens action for First

Amendment claims, see Reichle v. Howards, 566 U.S. 658, 663

(2012); Bush v. Lucas, 462 U.S. 367, 368 (1983) (declining to

recognize a Bivens action for a First Amendment speech claim

involving federal employment), and courts within the Fourth

Circuit have not held otherwise, see Kirtman v. Helbig, Civil

Action No.: 4:16-cv-2839-AMQ, 2018 WL 3611344, at *3-4 (D.S.C.

July 27, 2018) (declining to recognize a Bivens action for First

Amendment claim).

Simmons v. Poe, 47 F.3d 1370, 1376 (4th Cir. 1995); Gooden v.

Howard Cty., 954 F.2d 960, 969-70 (4th Cir. 1992) (en banc).

Roe fails to plead the second element because her theory of

liability is not “class-based, invidiously discriminatory

animus,” but rather the more sweeping Title VII standards

regarding sexual harassment as discrimination on the basis of

sex. See United Bhd. of Carpenters & Joiners of Am., Local 610

v. Scott, 463 U.S. 825, 829 (1983) (“[N]ot only must [the

conspiracy] have as its purpose the deprivation of ‘equal

protection of the laws, or of equal privileges and immunities

under the laws,’ but also must be motivated by ‘some racial, or

perhaps otherwise class-based, invidiously discriminatory animus

behind the conspirators’ action.’”). This Court therefore

GRANTS the Individual Capacity Defendants’ motions to dismiss

Count III.

The dismissal of Count III requires the dismissal of Count

IV because section 1986 applies only to actors who could have

prevented the section 1985 injury but failed to do so. See 42

U.S.C. § 1986; Adickes v. S. H. Kress & Co., 398 U.S. 144, 222

n.28 (1970) (Brennan, J., concurring). This Court therefore

GRANTS the Individual Capacity Defendants’ motions to dismiss

Count IV.

IV. CONCLUSION

This Court GRANTS the Official Capacity Defendants’ motion

to dismiss, ECF No. 42, and GRANTS the Individual Capacity

Defendants’ motions to dismiss, ECF Nos. 36, 38, 40, 44.

Judgment will enter for the defendants.

SO ORDERED.

/s/ William G. Young

WILLIAM G. YOUNG

DISTRICT JUDGE