# Cook v. Sicilian

> District Court, S.D. Ohio · October 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10376599

## Case

- **Court:** District Court, S.D. Ohio
- **Decided:** October 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10376599

## How later opinions describe it (automated extraction)

- holding that Section 1983 claims against agents of the state in their official capacity are not cognizable
- stating that, “[a]t a minimum a [Section] 1983 plaintiff must show that a supervisory official at least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct”
- holding that “failure to object to the magistrate judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district court’s ruling”

## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

JOSHUA D. COOK,

Plaintiff,
Case No. 2:20-cv-781
Judge James L. Graham
vs. Chief Magistrate Judge Elizabeth P. Deavers

JUSTIN SICILIAN, et al.,

Defendants.

REPORT AND RECOMMENDATION
This matter is before the Court for a Report and Recommendation on Defendants’ Motion
to Dismiss Plaintiff’s Complaint (Doc. 1). (ECF No. 44.) Plaintiff did not file a Response.1 For
the following reasons, the Undersigned RECOMMENDS that the Defendants’ Motion to
Dismiss be GRANTED.
I. BACKGROUND
Plaintiff, proceeding without the assistance of counsel, initiated this action on February
11, 2020, alleging medical deliberate indifference to his serious medical needs in violation of the
Eighth Amendment. (ECF No. 1.) Plaintiff named four Defendants in this action, all of whom
appear to be employees of the STAR Community Justice Center in Nelsonville, Ohio: Justin

1 Defendants filed their Motion to Dismiss on June 19, 2020. (ECF No. 44.) On July 22, 2020,
Plaintiff filed a Notice of Change of Address. (ECF No. 49.) On August 19, 2020, Plaintiff filed
a Status Report (ECF No. 50) and a Motion for ECF Access (ECF No. 51). The next day, this
Court ordered that “[i]f Plaintiff intends to file a response to the Motion [to Dismiss], he shall
file a motion for leave to file an untimely memorandum in opposition, demonstrating good cause,
together with his response, by SEPTEMBER 10, 2020. Plaintiff is CAUTIONED that failure to
respond may result in the granting of Defendants’ Motion.” (ECF No. 53.) To date, Plaintiff has
not filed a response to the Motion to Dismiss.
Sicilian; “Ms. Hacker”; “Ms. Rife”; and an unidentified “Nurse – LPN Tims.” (Id. at PAGEID #
3.) Plaintiff’s Complaint does not indicate whether he is suing Defendants in their official or
individual capacity. (See generally ECF No. 1.)
Specifically, Plaintiff alleges that in December 2019 and January 2020, he felt his seizure
medication “was not working,” and Defendants denied his request to be seen by a “doctor of

competency” and advised him to continue taking his seizure medication. (Id. at PAGEID ## 5-
6.) Plaintiff alleges “that led to an injury later,” and alleges that he “was violated” by
Defendants’ decision. (Id. at PAGEID # 5.) Plaintiff alleges that Defendants “unnecessarily and
wantonly inflicted pain on [him] . . . by acting with [deliberate] indifference towards [his] serious
medical needs.” (Id. at PAGEID # 6.)
II. STANDARD OF REVIEW
To survive a motion to dismiss for failure to state a claim under Rule 12(b)(6) of the
Federal Rules of Civil Procedure, a plaintiff must satisfy the basic federal pleading requirements
set forth in Federal Rule of Civil Procedure 8(a). Under Rule 8(a)(2), a complaint must contain a

“short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual demands on the authors of
complaints.” 16630 Southfield Ltd., P’ship v. Flagstar Bank, F.S.B., 727 F.3d 502, 503 (6th Cir.
2013) (emphasis in original).
Although this pleading standard does not require “‘detailed factual allegations,’ . . . [a]
pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause
of action,’” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A complaint will not “suffice if it tenders ‘naked
assertion[s]’ devoid of ‘further factual enhancement.’” Id. (quoting Twombly, 550 U.S. at 557).
Instead, to survive a motion to dismiss for failure to state a claim under Rule 12(b)(6), “a
complaint must contain sufficient factual matter . . . to ‘state a claim to relief that is plausible on
its face.’” Id. (quoting Twombly, 550 U.S. at 570). Facial plausibility is established “when the
plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Id. “The plausibility of an inference depends on

a host of considerations, including common sense and the strength of competing explanations for
the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504 (citations omitted).
In considering whether a complaint fails to state a claim upon which relief can be
granted, the Court must “construe the complaint in the light most favorable to the plaintiff,
accept its allegations as true, and draw all reasonable inferences in favor of the plaintiff.” Ohio
Police & Fire Pension Fund v. Standard & Poor's Fin. Servs. LLC, 700 F.3d 829, 835 (6th Cir.
2012) (quoting Directv, Inc. v. Treesh, 487 F.3d 471, 476 (6th Cir. 2007)). However, “the tenet
that a court must accept a complaint’s allegations as true is inapplicable to threadbare recitals of
a cause of action’s elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663.

Thus, while a court is to afford plaintiff every inference, the pleading must still contain facts
sufficient to “provide a plausible basis for the claims in the complaint”; a recitation of facts
intimating the “mere possibility of misconduct” will not suffice. Flex Homes, Inc. v. Ritz–Craft
Corp of Mich., Inc., 491 F. App’x. 628, 632 (6th Cir. 2012); Iqbal, 556 U.S. at 679.
In addition, the Court holds pro se complaints “‘to less stringent standards than formal
pleadings drafted by lawyers.’” Garrett v. Belmont Cnty. Sheriff’s Dep’t., No. 08-3978, 2010
WL 1252923, at *2 (6th Cir. April 1, 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520
(1972)). This lenient treatment, however, has limits; “‘courts should not have to guess at the
nature of the claim asserted.’” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir.
2012) (quoting Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989)).
III. ANALYSIS
Defendants argue the Complaint should be dismissed in its entirety for three reasons: (1)
Plaintiff’s Complaint fails to state a claim for relief, as it fails to allege facts to demonstrate that

Defendants were personally involved in the alleged constitutional violation and Plaintiff fails to
allege an injury; (2) Defendants are entitled to qualified immunity; and (3) Plaintiff fails to allege
a valid Monell claim. (ECF No. 44.) Plaintiff, who is proceeding without counsel, has failed to
respond to these arguments.2 The Court will address these arguments in turn.
A. Failure to State a Claim Upon Which Relief May Be Granted
1. Defendants’ Involvement
Plaintiff brings his federal law claims against Defendants under 42 U.S.C. § 1983, which
provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or
usage, of any State or Territory or the District of Columbia, subjects, or causes to
be subjected, any citizen of the United States or other person within the jurisdiction
thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in
equity, or other proper proceedings for redress.
In order to proceed under Section 1983, a plaintiff must prove both that (1) the perpetrator acted
under color of state law; and (2) the conduct deprived the complainant of rights, privileges, or
immunities secured by the Constitution or laws of the United States. Parratt v. Taylor, 451 U.S.
527, 535 (1981); Brandon v. Allen, 719 F.2d 151, 153 (6th Cir.1983), rev’d and remanded sub

2 Due to Plaintiff’s pro se status, this Court declines to analyze whether Plaintiff has abandoned
his claims by failing to respond to Defendants’ Motion to Dismiss, an issue that has been
thoroughly explored in this Circuit. See, e.g., Tonkovich v. Gulfport Energy Corp., No. 2:12-
CV-38, 2012 WL 6728348, at *2 (S.D. Ohio Dec. 28, 2012) (collecting cases).
nom, Brandon v. Holt, 469 U.S. 464 (1985). As a general rule, a plaintiff proceeding under
Section 1983 must allege that the deprivation of his rights was intentional or at least the result of
gross negligence. Davidson v. Cannon, 474 U.S. 344, 348 (1986). Mere negligence is not
actionable under Section 1983. Chesney v. Hill, 813 F.2d 754, 755 (6th Cir. 1987).
As a preliminary matter, Section 1983 does not permit Plaintiff to bring his claims

against Defendants in their official capacity. Section 1983 imposes liability only upon a
“person” who, under color of law, subjects another person to a deprivation of federal rights. 42
U.S.C. § 1983. State officials acting in their official capacity are not “persons” under Section
1983. Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71 (1989). Therefore, to the extent
that Plaintiff brings his Section 1983 claims against Defendants in their official capacity, they are
not cognizable. See Gean v. Hattaway, 330 F.3d 758, 766 (6th Cir. 2003) (holding that Section
1983 claims against agents of the state in their official capacity are not cognizable).
To state a claim against a defendant in his individual capacity, a plaintiff must allege
personal involvement of the defendant in causing plaintiff’s injury. Hardin v. Straub, 954 F.2d

1193, 1196 (6th Cir. 1992). A party cannot be held liable under Section 1983 unless the party
personally participated in, or otherwise authorized, approved or knowingly acquiesced in, the
allegedly unconstitutional conduct. Leach v. Shelby Co. Sheriff, 891 F.2d 1241, 1246 (6th Cir.
1989). To establish liability under Section 1983 against an individual defendant, a plaintiff must
plead and prove that the defendant was personally involved in the conduct that forms the basis of
his complaint. Greene v. Barber, 310 F.3d 889, 899 (6th Cir. 2002); Shehee v. Luttrell, 199 F.3d
295, 300 (6th Cir. 1999); Bellamy v. Bradley, 729 F.2d 416, 421 (6th Cir. 1984) (stating that,
“[a]t a minimum a [Section] 1983 plaintiff must show that a supervisory official at least
implicitly authorized, approved, or knowingly acquiesced in the unconstitutional conduct”).
Thus, a claimed constitutional violation must be based on active unconstitutional behavior,
Greene, 310 F.3d at 899; Shehee, 199 F.3d at 300, and cannot be based upon the mere right to
control employees. Polk Co. v. Dodson, 454 U.S. 312, (1981); Monell v. New York City Dep’t of
Soc. Serv., 436 U.S. 658 (1978). A plaintiff must demonstrate that a supervisory defendant “did
more than play a passive role in the alleged violation or showed mere tacit approval of the goings

on.” Bass v. Robinson, 167 F.3d 1041, 1048 (6th Cir. 1999). Supervisory liability cannot be
based upon the failure to act, Summers v. Leis, 368 F.3d 881, 888 (6th Cir. 2004), or simply
because a supervisor denied an administrative grievance or failed to act based upon information
contained in a grievance. Shehee, 199 F.3d at 300. Plaintiffs must allege defendants were
personally involved, because “[Section] 1983 liability cannot be imposed under a theory of
respondeat superior.” Grinter v. Knight, 532 F.3d 567, 575 (6th Cir. 2008) (citation omitted).
Thus, to hold a supervisor liable under Section 1983, a plaintiff “must show that the official at
least implicitly authorized, approved, or knowingly acquiesced in the unconstitutional
conduct[.]” Everson v. Leis, 556 F.3d 484, 495 (6th Cir. 2009).

Against this backdrop, Plaintiff has failed to state a claim against any of the Defendants
in their individual capacities. Plaintiff does not make any allegations that any Defendant was
personally involved in, or had knowledge of, any of the events or decisions referenced in his
Complaint. (See generally Complaint, ECF No. 1.) In fact, Plaintiff’s Complaint does not
reference any of the Defendants by name at all, making it impossible for this Court to determine
the nature or extent of each Defendant’s involvement – even at this preliminary stage, when the
Court takes all pleaded facts as true.
Plaintiff’s Complaint thus fails to give rise to a plausible inference that any of the
Defendants were actively engaged in any unconstitutional behavior as a result of their
supervisory positions or handling of Plaintiff’s grievances. The Complaint should be dismissed
against all Defendants on this basis alone.
2. Plaintiff’s Injury
Even if, arguendo, Plaintiff had properly alleged that Defendants were sufficiently
involved, Plaintiff nevertheless has failed to allege a specific injury he sustained as a result of

Defendants’ conduct. “To state a valid claim under 42 U.S.C. § 1983, a plaintiff must allege that
he suffered a specific injury as a result of specific conduct of a defendant and show an
affirmative link between the injury and the conduct of that defendant.” Ray v. Caruso, No. 08-
15208, 2009 WL 2230935, at *3 (E.D. Mich. July 22, 2009) (citing Rizzo v. Goode, 423 U.S.
362, 371–72, 377, 96 S.Ct. 598, 46 L.Ed.2d 561 (1976)). “The law has long been that ‘a
violation of a federally secured right is remediable in damages only upon proof that the violation
proximately caused injury.’” Horn by Parks v. Madison Cty. Fiscal Court, 22 F.3d 653, 659 (6th
Cir. 1994) (quoting Memphis Cmty. Sch. Dist. v. Stachura, 477 U.S. 299, 305-08 (1986)).
Here, Plaintiff alleges that he felt his seizure medication “was not working,” Defendants

allegedly denied Plaintiff’s request to be seen by a different doctor, and Plaintiff alleges that this
denial “led to an injury later.” (ECF No. 1 at PAGED ## 5-6.) Plaintiff does not, however,
allege what “injury” he sustained, let alone how this “injury” was proximately caused by
Defendants. Such nonspecific factual allegations are insufficient. Iqbal, 556 U.S. at 678 (2009)
(A complaint will not “suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual
enhancement.’”) (quoting Twombly, 550 U.S. at 557); see also Russell v. Tennessee Dep't of
Correction, 99 F. App'x 575, 577 (6th Cir. 2004) (“The court is not required to accept non-
specific factual allegations and inferences or unwarranted legal conclusions.”) (collecting cases).
Even when considering Plaintiff’s pro se status, Garrett, 2010 WL 1252923, at *2, this Court
must conclude that Plaintiff has failed to state a claim upon which relief can be granted. The
Complaint thus should be dismissed for this additional reason.
B. Qualified Immunity
“Under the doctrine of qualified immunity, ‘government officials performing
discretionary functions generally are shielded from liability for civil damages insofar as their

conduct does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.’” Phillips v. Roane Cty., 534 F.3d 531, 538 (6th Cir.
2008) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “‘Qualified immunity balances
two important interests—the need to hold public officials accountable when they exercise power
irresponsibly and the need to shield officials from harassment, distraction, and liability when
they perform their duties reasonably.’” Richko v. Wayne Cty., Mich., 819 F.3d 907, 914 (6th Cir.
2016) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “To determine whether an
officer is entitled to qualified immunity, a court evaluates two independent prongs: whether the
officer’s conduct violated a constitutional right, and whether that right was clearly established at

the time of the incident.” Id. at 914–15 (citations omitted).
Here, the Court finds that Plaintiff has not pled that Defendants’ conduct violated any of
Plaintiff’s constitutional rights. Accordingly, Plaintiff’s claim fails at the first prong of the
qualified immunity inquiry. It is well established that “[t]he Eighth Amendment forbids prison
officials from unnecessarily and wantonly inflicting pain on an inmate by acting with deliberate
indifference toward [his or her] serious medical needs.” Jones v. Muskegon County, 625 F.3d
935, 941 (6th Cir. 2010) (internal quotations and citations omitted). A claim for deliberate
indifference “has both objective and subjective components.” Alspaugh v. McConnell, 643 F.3d
162, 169 (6th Cir. 2011). The United States Court of Appeals for the Sixth Circuit has explained
as follows:
The objective component mandates a sufficiently serious medical need. [Blackmore
v. Kalamazoo Cnty., 390 F.3d 890, 895 (6th Cir.2004).] The subjective component
regards prison officials’ state of mind. Id. Deliberate indifference “entails
something more than mere negligence, but can be satisfied by something less than
acts or omissions for the very purpose of causing harm or with knowledge that harm
will result.” Id. at 895–96 (internal quotation marks and citations omitted). The
prison official must “be aware of facts from which the inference could be drawn
that a substantial risk of serious harm exists, and he must also draw the inference.”
Id. at 896 (internal quotation marks and citation omitted).
Barnett v. Luttrell, 414 F. App’x 784, 787–88 (6th Cir. 2011). Where the risk of serious harm is
obvious, it can be inferred that the defendants had knowledge of the risk. Farmer v. Brennan,
511 U.S. 825, 842 (1994). The Sixth Circuit has also noted that in the context of deliberate
indifference claims:
[W]e distinguish between cases where the complaint alleges a complete denial of
medical care and those cases where the claim is that a prisoner received inadequate
medical treatment. Where a prisoner alleges only that the medical care he received
was inadequate, federal courts are generally reluctant to second guess medical
judgments. However, it is possible for medical treatment to be so woefully
inadequate as to amount to no treatment at all.
Alspaugh, 643 F.3d at 169 (internal quotations and citations omitted). Along similar lines,
“[o]rdinary medical malpractice does not satisfy the subjective component.” Grose v. Corr.
Med. Servs, Inc., 400 F. App’x 986, 988 (6th Cir. 2010). Rather, the Sixth Circuit considers the
subjective component to be satisfied where defendants recklessly disregard a substantial risk to a
plaintiff’s health. Parsons v. Caruso, 491 F. App’x 597, 603 (6th Cir. 2012). Furthermore, “a
difference of opinion between [a prisoner] and the prison health care providers and a dispute
over the adequacy of [a prisoner’s] treatment . . . does not amount to an Eighth Amendment
claim.” Apanovitch v. Wilkinson, 32 F. App’x 704, 707 (6th Cir. 2002).
Plaintiff must satisfy both the objective and subjective components to adequately state a
claim for medical deliberate indifference. First, the objective component mandates that a
plaintiff demonstrate a “sufficiently serious” medical need, “which is one that has been
diagnosed by a physician as mandating treatment or one that is so obvious that even a lay person
would easily recognize the necessity for a doctor’s attention.” Santiago v. Ringle, 734 F.3d 585,
590 (6th Cir. 2013) (internal citations omitted). Here, Plaintiff has failed to do so. As
Defendants point out, Plaintiff “does not allege that Defendants consciously disregarded the risk

associated to Plaintiff’s seizure condition,” nor “that he did not receive any medical treatment at
all.” (ECF No. 44 at PAGEID # 166.) Plaintiff only alleges that he felt his seizure medication
“was not working,” and Defendants failed to grant his request to be seen by a “doctor of
competency.” (ECF No. 1 at PAGEID ## 5-6.) These allegations are insufficient, as “a
difference of opinion between [a prisoner] and the prison health care providers and a dispute
over the adequacy of [a prisoner’s] treatment . . . does not amount to an Eighth Amendment
claim.” Apanovitch, 32 F. App’x at 707.
For the same reason, Plaintiff also has failed to meet the subjective component of a
deliberate indifference claim. In order to demonstrate deliberate indifference to his medical

needs, Plaintiff must also allege that Defendants subjectively perceived a substantial risk of
serious harm and disregarded that known risk in his treatment. Blackmore, 390 F.3d at 896.
Plaintiff has not done so and does not include any allegations that suggest that any of the
Defendants could, or did, perceive that Plaintiff was experiencing a life-threatening situation.
(See generally ECF No. 1.)
Even under the less stringent standards applicable to Plaintiff as a pro se litigant, the
Court finds that Plaintiff has failed to allege that any of the Defendants’ conduct violated a
constitutional right. Accordingly, all of the Defendants are entitled to qualified immunity, and
Plaintiff’s Complaint should be dismissed for this additional reason.
C. Plaintiff’s Monell Claim
As discussed above, to the extent Plaintiff attempted to bring his claims against
Defendants in their official capacity, Plaintiff’s claims are not cognizable. See Gean, 330 F.3d at
766 (6th Cir. 2003) (holding that Section 1983 claims against agents of the state in their official
capacity are not cognizable). Regardless, for the sake of completeness, to the extent Plaintiff set

out to sue Defendants in their official capacities, a suit against a government employee in their
official capacity is essentially a suit against the government entity itself. Wessendarp v. Berling,
No. 1:12-CV-559-HJW, 2013 WL 3353886, at *12 (S.D. Ohio July 3, 2013). The landmark
Supreme Court case, Monell v. Dep't of Soc. Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611
(1978), imposes municipal liability under Section 1983 when (1) a constitutional violation has
occurred and (2) the municipality is responsible for that violation, based on the “execution of a
government [ ] policy or custom.” Marsili v. Vill. of Dillonvale, Ohio, No. 2:12-CV-00741, 2014
WL 1922236, at *19 (S.D. Ohio May 13, 2014) (citing Doe v. Claiborne Cnty., 103 F.3d 495,
505 (6th Cir.1996); Monell, 436 U.S. at 694)).

As discussed above, Plaintiff has failed to allege that a constitutional violation has
occurred. Regardless, however, Plaintiff also has failed to identify, let alone to implicate, a
government policy or custom that was allegedly responsible for such a violation. Accordingly,
even if this Court were inclined to construe Plaintiff’s claims as against a government entity or
municipality, this Court finds that Plaintiff has failed to meet both elements of a Monell claim.
IV. CONCLUSION
For the reasons stated above, the Undersigned finds that Plaintiff has failed to state a
claim upon which relief may be granted. Accordingly, the Undersigned RECOMMENDS that
Defendants’ Motion to Dismiss (ECF No. 44) be GRANTED.
PROCEDURE ON OBJECTIONS
If any party seeks review by the District Judge of this Report and Recommendation, that
party may, within fourteen (14) days, file and serve on all parties objections to the Report and
Recommendation, specifically designating this Report and Recommendation, and the part in
question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.
Fed. R. Civ. P. 72(b).
The parties are specifically advised that the failure to object to the Report and
Recommendation will result in a waiver of the right to de novo review by the District Judge and
waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex
Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate
judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district
court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that
defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed,
appellate review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d
981, 994 (6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to
specify the issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation
omitted)).
IT IS SO ORDERED.

Date: October 23, 2020 /s/ Elizabeth A. Preston Deavers_________
ELIZABETH A. PRESTON DEAVERS
CHIEF UNITED STATES MAGISTRATE JUDGE

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10376599. Public record. Not legal advice.