SANTANA v. BERKS COUNTY JAIL SYSTEM

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

NICOLI ANTONIO SANTANA, :

Plaintiff, :

:

v. : CIVIL ACTION NO. 20-CV-1226

:

BERKS COUNTY JAIL SYSTEM, et al., :

Defendants. :

MEMORANDUM

SCHMEHL, J. /s/ JLS July 1, 2020

Plaintiff Nicoli Antonio Santana brings this pro se civil rights action pursuant to 42

U.S.C. § 1983, against both individual and institutional defendants. (ECF No. 1.) He has also

filed a Motion for Leave to Proceed In Forma Pauperis and a Prisoner Trust Fund Account

Statement. (ECF Nos. 3, 4.) For the following reasons, the Court will grant Santana leave to

proceed in forma pauperis and dismiss his Complaint in part with prejudice for failure to state a

claim, pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii).

I. FACTUAL ALLEGATIONS

The Complaint names the following Defendants: (1) Berks County Jail System; (2)

Janine L. Quigley (Warden of Berks County Jail System); (3) Chief Deputy Warden Smith; (4)

K. Kenneth Brown (Assistant District Attorney of Berks County); (5) Captain Castro; (6) S.O.G.

Operator Dew; and (7) S.O.G. Operator Amneyhower. Each Defendant is sued in their

individual and official capacities. Santana filed this matter based on events which took place

while he was confined as a pretrial detainee at the Berks County Jail System. Currently, Santana

is incarcerated at SCI-Forest, having been convicted of certain charges including first degree

murder, on January 30, 2019. See Commonwealth v. Santana, No. CP-06-CR-0004819-2017

(C.P. Berks Cty.).1

Santana alleges that on March 2, 2018, S.O.G. Operator Dew and S.O.G. Operator

Amneyhower went to his cell and conducted a search. (ECF No. 1 at 3.)2 When Santana

inquired why they were searching his cell, Dew and Amneyhower responded that “they were

sent on directive from the administrational staff and orders of the Assistant District Attorney, to

confiscate all paper work” in Santana’s possession. (Id.) Santana further inquired whether Dew

and Amneyhower had a search warrant, but they responded that “they were within their authority

to confiscate” his paperwork. (Id.) Santana avers that he was “denied the right to be present

during the illegal search and seizure of [his] property and was not presented any search warrant

authorized by the court to conduct such search and seizure by law.” (Id.)

When Dew and Amneyhower completed their search and exited Santana’s cell, they were

allegedly carrying a stack of papers. (Id.) Upon returning to his cell, Santana conducted an

inventory of his property and “noticed that a lot of [his] legal papers were missing,” including

“letter heads from [his] attorney and court papers as well.” (Id.) Santana avers that the legal

papers confiscated pertained to his “case and strategic defenses that [Santana] was asking [his]

attorney to consider for trial.” (Id. at 3-4.) Dew allegedly advised Santana to address any of

concerns through the grievance process, and both officers left the block allegedly carrying

Santana’s legal work with them. (Id. at 4.)

1 Public records indicate that Santana was represented by privately retained counsel during his

state court criminal proceedings. See Commonwealth v. Santana, No. CP-06-CR-0004819-2017

(C.P. Berks Cty.).

2 The Court adopts the pagination assigned to the Complaint by the CM/ECF system.

Santana avers that approximately two to four hours later, Dew returned to his cell with

some of the legal work that had been confiscated during the search. (Id.) Santana asserts that his

legal work had already been copied, handed over to Chief Deputy Warden Smith, and forwarded

to Assistant District Attorney K. Kenneth Brown. (Id.)

Santana filed an Inmate Grievance Form on March 2, 2018 disputing the search of his

cell and confiscation of his legal papers. (Id. at 4, 11.) On March 12, 2018, Captain Castro

responded to Santana’s grievance, indicating that he removed any documents that could be

construed as legal documents or legal work before any copies were forwarded to the district

attorney’s office. (Id. at 4-5, 11.) Castro also stated that all copies of legal work were returned

to Santana on March 12, 2018. (Id.)

In disagreement with the response provided by Castro, Santana filed an appeal to Warden

Janine L. Quigley. (Id. at 5, 12-21.) On March 28, 2018, Santana received the following

response from Warden Quigley:

Staff involved reported that they copied only materials that were not

clearly identifiable legal documents. They only do a cursory scan of the

documents - - they do not read them. They then return originals to you

within hours. In this case, the Capt. received your grievance before any

copies were forwarded. He removed additional copies he thought could be

legal materials [and] then he even allowed you to go through the copies

[and] pull out (1) or more; only after this process were remaining copies

sent out of the jail. You had a chance to review everything before release.

(Id. at 5, 12.)

Santana asserts from August 29, 2017 through the present day, the “Berks County Jail

System Administration staff, has been acting as a conduit and advocate for the District Attorney

office, to illegally and unconstitutionally seize legal documents from pre-trial detainees awaiting

trial without proper authorization from the court” and without obtaining a search warrant. (Id. 5-

6.) Santana further asserts that several grievances and appeals have been filed by pretrial

detainees and committed prisoners about the “unlawful and unconstitutional” searches and

seizures being conducted by Berks County Jails System’s administrative staff at the request of

the Berks County District Attorney’s Office and the administrative staff has “failed to take

reasonable measures to abate the substantial risk of violating” the constitutional rights of

prisoners. (Id. at 7.)

The Court understands Santana to be asserting claims based on the alleged unlawful

search and seizure of his legal work. (Id. at 8.) Specifically, Santana avers that the “unlawful

search and seizure” has violated his constitutional rights and constituted cruel and unusual

punishment under the First, Fourth, Eighth, and Fourteenth Amendments to the United States

Constitution. (Id.) In addition to injunctive relief in the form of an order directing the Berks

County Jail System to cease conducting illegal searches and seizures, Santana seeks

compensatory damages in the amount of $100,000 against each Defendant as well as $250,000 in

punitive damages against each Defendant. (Id. at 9.)

II. STANDARD OF REVIEW

The Court will grant Santana leave to proceed in forma pauperis because it appears that

he is incapable of paying the fees to commence this civil action.3 Accordingly, 28 U.S.C.

§ 1915(e)(2)(B)(ii) applies, which requires the Court to dismiss the Complaint if it is frivolous or

it fails to state a claim. A complaint is frivolous under § 1915(e)(2)(B)(i) if it “lacks an arguable

basis either in law or in fact,” Neitzke v. Williams, 490 U.S. 319, 325 (1989), and is legally

baseless if it is “based on an indisputably meritless legal theory.” Deutsch v. United States, 67

F.3d 1080, 1085 (3d Cir. 1995). Whether a complaint fails to state a claim under §

3 However, as Santana is a prisoner, he must pay the filing fee in installments in accordance with

28 U.S.C. § 1915(b).

1915(e)(2)(B)(ii) is governed by the same standard applicable to motions to dismiss under

Federal Rule of Civil Procedure 12(b)(6), see Tourscher v. McCullough, 184 F.3d 236, 240 (3d

Cir. 1999), which requires the Court to determine whether the complaint contains “sufficient

factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (quotations omitted). Conclusory allegations do not suffice. Id.

As Santana is proceeding pro se, the Court construes his allegations liberally. Higgs v. Att’y

Gen., 655 F.3d 333, 339 (3d Cir. 2011).

III. DISCUSSION

“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the

Constitution and laws of the United States, and must show that the alleged deprivation was

committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988).

“A defendant in a civil rights action must have personal involvement in the alleged wrongs.” See

Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (the personal involvement of each

defendant in the alleged constitutional violation is a required element and a plaintiff must allege

how each defendant was involved in the events and occurrences giving rise to the claims).

Indeed, “[b]ecause vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead

that each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Iqbal, 556 U.S. at 676.

A. Claims Against the Berks County Jail System

Any § 1983 claims against the Berks County Jail System must be dismissed as frivolous

because a prison is not a “person” amenable to suit under Section 1983. Miller v. Curran-

Fromhold Corr. Facility, Civ. A. No. 13-7680, 2014 WL 4055846, at *2 (E.D. Pa. Aug. 13,

2014) (citing Mitchell v. Chester Cty. Farms Prison, 426 F. Supp. 271 (E.D. Pa. 1976).

Accordingly, the “Berks County Jail System” is not a proper party to this case. The Court will

therefore dismiss Santana’s claims against that Defendant with prejudice.

B. Claims Based on Grievances

In his Complaint, Santana expresses dissatisfaction with the grievance decisions issued

by Castro and Warden Quigley. (ECF No. 5-6.) To the extent that Santana alleges a violation of

his rights with respect to the denial of his grievance, the claim is not plausible. “Prison inmates

do not have a constitutionally protected right to a grievance process.” Jackson v. Gordon, 145 F.

App’x 774, 777 (3d Cir. 2005) (per curiam); see also Caldwell v. Beard, 324 F. App’x 186, 189

(3d Cir. 2009) (per curiam). Because there is no right to a grievance process at all, a claim under

§ 1983 based on the mishandling of a grievance cannot be plausible. Accordingly, any claims

based on grievances are dismissed with prejudice under § 1915(e)(2)(B)(ii).

C. Fourteenth Amendment Claim

Santana asserts a Fourteenth Amendment violation, which this Court interprets as

Santana’s attempt to bring a claim for deprivation of property without due process of law. (ECF

No. 1 at 8.) This claim is not plausible. A prisoner in Pennsylvania cannot state a constitutional

claim based on the loss of his property. See Spencer v. Bush, 543 F. App’x 209, 213 (3d Cir.

2013) (“‘[A]n unauthorized intentional deprivation of property by a state employee does not

constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth

Amendment if a meaningful postdeprivation remedy for the loss is available.’” (quoting Hudson,

468 U.S. at 533)); Shakur v. Coelho, 421 F. App’x 132, 135 (3d Cir. 2011) (per curiam)

(explaining that the Pennsylvania Tort Claims Act provides an adequate remedy for a willful

deprivation of property). See also Booth v. King, 346 F. Supp. 2d 751, 759-760 (E.D. Pa. 2004)

(citing Hudson, 468 U.S. at 531) (finding no violation of the Fourteenth Amendment for

deprivation of property without due process if there exist adequate post-deprivation remedies,

which includes a grievance procedure).

Santana alleged he was deprived of his property on March 2, 2018. His legal papers,

however, were returned to him by March 12, 2018. (ECF No. 4-5, 11.) Santana has not alleged

how he was harmed by that short deprivation. Moreover, given that Santana had access to

grievance proceedings and there exist state tort and common law remedies available to him, his

claim under the Fourteenth Amendment for deprivation of property without due process fails.

See Shakur, 421 F. App’x at 135; Tapp v. Proto, 404 F. App’x 563, 567 (3d Cir. 2010) (per

curiam) (“[D]eprivation of inmate property by prison officials does not state a cognizable due

process claim if the prisoner has an adequate post-deprivation state remedy.”) Accordingly,

Santana’s claim of deprivation of property without due process does not give rise to a claim for

relief. See Booth, 346 F. Supp. 2d at 759-760.

D. Access to Courts Claim

To the extent Santana is attempting to assert a First Amendment denial of access to courts

claim based upon the taking of his legal papers, he has not established a basis for a constitutional

violation. “A prisoner making an access-to-the-courts claim is required to show that the denial

of access caused actual injury.” Jackson v. Whalen, 568 F. App’x 85, 87 (3d Cir. 2014) (per

curiam) (quoting Lewis v. Casey, 518 U.S. 343, 350 (1996)). In other words, a prisoner claiming

that he was denied access to the courts must allege an injury traceable to the conditions of which

he complains. Diaz v. Holder, 532 F. App’x 61, 63 (3d Cir. 2013) (per curiam) (affirming

dismissal of denial of access claims where plaintiff failed to tie alleged deficiencies in library to

harm in underlying action). In general, an actual injury occurs when a prisoner demonstrates that

a “nonfrivolous” and “arguable” claim was lost because of the denial of access to the courts.

Christopher v. Harbury, 536 U.S. 403, 415 (2002). “[T]he underlying cause of action, . . . is an

element that must be described in the complaint.” Id. Furthermore, the right to access the courts

may be satisfied if the plaintiff has an attorney. Diaz, 532 F. App’x at 63 (citing Bounds v.

Smith, 430 U.S. 817, 831 (1977) and Peterkin v. Jeffes, 855 F.2d 1021, 1042 (3d Cir. 1988)); see

also Prater v. City of Phila., 542 F. App’x 135, 137 n.4 (3d Cir. 2013) (per curiam).

Santana was represented by counsel throughout his state criminal proceedings. See

Commonwealth v. Santana, No. CP-06-CR-0004819-2017 (C.P. Berks Cty.). Moreover, he has

not identified any nonfrivolous and arguable claim that was lost because of the alleged seizure of

his legal papers. Accordingly, the claim must be dismissed as implausible under §

1915(e)(2)(B)(ii).

E. Eighth Amendment Claim

To the extent that Santana asserts a violation of the Eighth Amendment by alleging that

the unlawful search and seizure of his legal work constituted “cruel and unusual punishment,”

Santana has failed to set forth a plausible claim. (ECF No. 1 at 8.) As Santana was a pretrial

detainee at the time of the alleged illegal search, and not a convicted prisoner, the Eighth

Amendment is not implicated. See Bell v. Wolfish, 441 U.S. 520, 535 (1979) (pretrial detainees

are protected from “punishment” by the Due Process Clause of the Fourteenth Amendment).

The Eighth Amendment governs claims brought by convicted inmates challenging their

conditions of confinement, while the Due Process Clause of the Fourteenth Amendment governs

claims brought by pretrial detainees. Hubbard v. Taylor, 399 F.3d 150, 166 (3d Cir. 2005).

In order to state a proper claim, a detainee must assert that prison officials acted with

deliberate indifference, meaning that they consciously disregarded a serious risk to the detainee’s

health or safety. See Wilson v. Seiter, 501 U.S. 295, 298-99 (1991); see also Wilson v. Burks,

423 F. App’x 169, 173 (3d Cir. 2011) (per curiam) (“‘ [T]he official must both be aware of facts

from which the inference could be drawn that a substantial harm exists, and he must also draw

that inference.’”) (quoting Farmer v. Brennan, 511 U.S. 825, 837 (1994)). Santana has not

stated a plausible constitutional violation because he has not alleged that the confiscation of his

legal papers, which were subsequently returned, amounted to punishment, deprived him of a

basic need, or otherwise caused him harm. For all of the foregoing reasons, any claims made

based on an alleged illegal search and seizure will be dismissed with prejudice.

F. Official Capacity Claims

Santana’s official capacity claims against all Defendants are not plausible. Claims

against officers named in their official capacities are indistinguishable from claims against the

municipality that employs them. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985)

(“Official-capacity suits . . . ‘generally represent only another way of pleading an action against

an entity of which an officer is an agent.’”) (quoting Monell v. Dep’t of Soc. Servs. of N.Y., 436

U.S. 658, 690, n. 55 (1978)). “[A]n official-capacity suit is, in all respects other than name, to be

treated as a suit against the entity.” Id. “Pennsylvania county offices . . . are treated as

municipalities for purposes of Monell.” Hatfield v. Berube, 714 F. App’x. 99, 102 n.1 (3d Cir.

2017) (citing Mulholland v. Gov’t Cty. of Berks, Pa.,706 F.3d 227, 237 (3d Cir. 2013)).

As Santana has not pled a basis for municipal liability, his official capacity claims are not

plausible. To plead a basis for municipal liability under § 1983, a plaintiff must allege that the

municipality’s policy or custom caused the violation of his constitutional rights. See Monell, 436

U.S. at 694. “To satisfy the pleading standard, [the plaintiff] must . . . specify what exactly that

custom or policy was.” McTernan v. City of York, PA, 564 F.3d 636, 658 (3d Cir. 2009).

“‘Policy is made when a decisionmaker possess[ing] final authority to establish municipal policy

with respect to the action issues an official proclamation, policy, or edict.’” Estate of Roman v.

City of Newark, 914 F.3d 789, 798 (3d Cir. 2019) (quoting Andrews v. City of Philadelphia, 895

F.2d 1469, 1480 (3d Cir. 1990)). “‘Custom, on the other hand, can be proven by showing that a

given course of conduct, although not specifically endorsed or authorized by law, is so well-

settled and permanent as virtually to constitute law.’” Id. (quoting Bielevicz v. Dubinon, 915

F.2d 845, 850 (3d Cir. 1990)). A plaintiff illustrates that a custom was the proximate cause of

his injuries by demonstrating that the defendant “had knowledge of similar unlawful conduct in

the past, failed to take precautions against future violations, and that its failure, at least in part,

led to his injury.” Id. (internal quotations and alterations omitted).

A plaintiff may also state a basis for municipal liability by “alleging failure-to-

supervise, train, or discipline . . . [and alleging facts showing] that said failure amounts to

deliberate indifference to the constitutional rights of those affected.” Forrest v. Parry, 930 F.3d

93, 106 (3d Cir. 2019). “This consists of a showing as to whether (1) municipal policymakers

know that employees will confront a particular situation, (2) the situation involves a difficult

choice or a history of employees mishandling, and (3) the wrong choice by an employee will

frequently cause deprivation of constitutional rights.” Id.

Here, Santana asserts that prison officials have “been acting as a conduit and advocate for

the District Attorney office, to illegally and unconstitutionally seize legal documents from pre-

trial detainees awaiting trial without proper authorization from the court” and without obtaining a

search warrant. (ECF No. 1 at 5-6.) While Santana may be attempting to allege a policy or

custom, his current allegations are not plausible to proceed with an official capacity/Monell

claim. However, because the Court cannot say at this time that he will never be able to allege a

plausible claim, this portion of Santana’s Complaint will be dismissed without prejudice and he

will be granted leave to file an amended complaint if he is capable of curing the defects the Court

has identified.

G. Fourth Amendment Claim4

Santana alleges that the search of his cell and confiscation of his legal documents

constitutes a violation of his Fourth Amendment right against unreasonable search. (ECF No. 1

at 8.) Specifically, Santana avers that Dew and Amneyhower were sent on directive from the

administrational staff and orders of District Attorney Brown to confiscate all paperwork in

Santana’s possession. (Id. at 3.)

Generally, challenges made to the search of a prison cell on Fourth Amendment grounds

are not plausible because “prisoners have no legitimate expectation of privacy and . . . the Fourth

Amendment’s prohibition on unreasonable searches does not apply in prison cells.” Hudson v.

Palmer, 468 U.S. 517, 530 (1984); Doe v. Delie, 257 F.3d 309, 316 (3d Cir. 2001) (“The

Supreme Court has concluded that the Fourth Amendment right to privacy, to be free from

unreasonable searches, is fundamentally inconsistent with incarceration.”); Crosby v. Piazza, 465

F. App’x 168, 172 (3d Cir. 2012) (the Fourth Amendment right to be free from unreasonable

searches and seizures does not apply to an inmate’s prison cell or personal property, including

4 In his Complaint, Santana appears to be asserting claims on behalf of others by averring that

“pre-trial detainees and committed prisoner’s [sic] will continue to have their constitutional

rights violated” by “illegal search and seizure’s [sic] being conducted per the request of the

District Attorney Office . . . without proper authorization from the court” by way of search

warrant. (ECF No. 1 at 6.) “Although an individual may represent herself or himself pro se, a

non-attorney may not represent other parties in federal court.” Murray on behalf of Purnell v.

City of Philadelphia, 901 F.3d 169, 170 (3d Cir. 2018); see also 28 U.S.C. § 1654; Twp. of

Lyndhurst, N.J. v. Priceline.com, Inc., 657 F.3d 148, 154 (3d Cir. 2011) (“[A] plaintiff must

assert his or her own legal interests rather than those of a third party” to have standing to bring a

claim (quotations omitted)); Osei-Afriyie ex rel. Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876,

882-83 (3d Cir. 1991) (a pro se litigant who is not an attorney may not pursue claims on behalf

of anyone other than himself). Accordingly, any claims made by Santana on behalf of others

will be dismissed with prejudice.

legal papers); Molina v. Wenerowicz, Civ. A. No. 12-5824, 2016 WL 6876319, at *4 (E.D. Pa.

Nov. 22, 2016).

The foregoing Fourth Amendment analysis is established by the underlying penological

purpose of maintaining safe and secure prisons and jails. In that context, cell searches are

deemed reasonable, “valid and necessary to ensure the security of the institution and the safety of

inmates and all others within its boundaries.” Hudson, 468 U.S. at 529. In this matter, however,

Santana avers that the search was undertaken because District Attorney Brown directed Dew and

Amneyhower to confiscate his paperwork. (ECF No. 1 at 3.) In other words, it appears from the

allegations in Santana’s Complaint that the search of his cell was conducted for purposes

unrelated to penological issues.

Some jurisdictions have found that a pretrial detainee does retain a legitimate expectation

of privacy in his or her cell in the wake of Hudson, especially when the prosecution orders the

search for the sole purpose of collecting evidence. For example, the United States Court of

Appeals for the Second Circuit has held that “a pre-trial detainee does retain Fourth Amendment

protection against searches ‘at the instigation of non-prison officials for non-institutional security

related reasons.’” See United States v. Cohen, 796 F.2d 20, 22-24 (2d Cir. 1986). In Cohen, the

Second Circuit determined that the “Supreme Court in Hudson did not contemplate a cell search

intended solely to bolster the prosecution’s case against a pre-trial detainee awaiting his day in

court. . ..” Id. at 23; see also Reid–Douglas v. Harding, Civ. A. No.10-2049, 2014 WL 3507292,

at *7-9 (M.D. Pa. July 14, 2014) (affirming validity of Fourth Amendment claim for cell search

of pretrial detainee, but granting qualified immunity because there that constitutional right was

not clearly established at the time of the search).

Taking the allegations in his Complaint as true, and it appearing for screening purposes

that the search of Santana’s cell may have been undertaken for reasons unrelated to prison

security or the safety of the inmates, Santana may proceed on his Fourth Amendment claims

against District Attorney Brown5 and Correctional Officers Dew and Amneyhower at this time.

IV. CONCLUSION

The Court will grant Santana leave to proceed in forma pauperis and dismiss the

following claims for failure to state a claim pursuant to 28 U.S.C. § 1915(e)(2)(B)(i) and (ii):

(1) all claims against the Berks County Jail System; (2) all claims based on grievances; (3) all

claims based on the Eighth and Fourteenth Amendments; and (4) all claims based on denial of

access to the courts. The Court will dismiss these claims with prejudice because any attempt at

amendment would be futile. Berks County Jail System will be terminated as a Defendant.

Santana’s official capacity claims against all Defendants other than the Berks County Jail System

are dismissed without prejudice. Santana will be given an opportunity to file an amended

complaint in the event he can cure the deficiencies in his official capacity claims. See Grayson

v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002). If he chooses not to file an amended

5 While prosecutors are entitled to absolute immunity from liability under § 1983 for acts that are

“intimately associated with the judicial phase of the criminal process” such as “initiating a

prosecution and . . . presenting the State’s case,” (see Imbler v. Pachtman, 424 U.S. 409, 430-

431 (1976)), a prosecutor does not have absolute immunity when performing the traditionally

investigative functions of law enforcement. Buckley v. Fitzsimmons, 509 U.S. 259, 276 (1993)

(considering whether prosecutors actions in determining whether bootprint at scene of crime was

that of suspect was an investigatory, administrative, or prosecutorial function, and holding that

“[w]hen the functions of prosecutors and detectives are the same, as they were here, the

immunity that protects them is also the same.”); Carter v. City of Philadelphia, 181 F.3d 339,

356 (3d Cir. 1999) (noting that “a prosecutor acting in an investigative or administrative capacity

is protected only by qualified immunity) (citations omitted). Since District Attorney Brown is

alleged to have ordered the search for investigative purposes, the claim against District Attorney

Brown is plausible for purposes of § 1915 screening.

complaint, the Court will direct service on his remaining claims, i.e., his Fourth Amendment

claims against District Attorney Brown and Correctional Officers Dew and Amneyhower only.

An appropriate Order follows.

BY THE COURT:

/s/ Jeffrey L. Schmehl

JEFFREY L. SCHMEHL, J.