Thomas v. Duvall

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ANGEL LUIS THOMAS, No. 3:16-CV-00451

Plaintiff, (Judge Brann)

v.

ANGELA R. DUVALL, et al.,

Defendants.

MEMORANDUM OPINION

APRIL 1, 2021

I. BACKGROUND

Angel Luis Thomas, formerly a Pennsylvania state prisoner confined at the

State Correctional Institution in Huntingdon, Pennsylvania (“SCI Huntingdon”),

filed this amended civil rights complaint alleging that numerous prison officials

violated his Constitutional rights.1 Thomas raised several claims including, as

relevant here, claims that Defendants interfered with his right of access to courts and

with his rights of free speech, association, and privacy, conspired to deprive Thomas

of those constitutional rights, and conspired to interfere with Thomas’ ability to

testify in federal court.2

In October 2019, Magistrate Judge Susan E. Schwab issued a Report and

Recommendation recommending that this Court grant in part and deny in part

1 Doc. 21.

Defendants’ motion for summary judgment.3 First, Magistrate Judge Schwab

recommended finding that Defendants had admitted certain factual allegations in

Thomas’ amended complaint by failing to properly deny those allegations, as

required by Federal Rule of Civil Procedure 8(b)(6).4 Specifically, she recommended

that “the factual allegations in Paragraphs 37-39, 45, 59, 72, 74-76, 81, 83-84, 86-

87, 90-91, 93-97, 100, 108-111, 114-115, 118-120, 122, 126, and 133-134 of the

amended complaint [be] deemed admitted for the defendants’ failure to deny them.”5

With regard to Thomas’ access to courts claim, Magistrate Judge Schwab

determined that this claim should survive summary judgment, as several admitted

allegations supported Thomas’ claim.6 Specifically, two prison officials “made

Thomas and Sawicki meet in the middle of the visiting room and then refused to

carry papers back and forth between them after [they were] placed . . . on either side

of a glass wall.”7 Additionally, Defendants “required Thomas and Sawicki to meet

in a non-contact booth with inoperative phones, causing them to have to shout and

allowing other inmates to hear their conversation.”8 The sum of these admitted facts

“could establish that [Defendants] interfered with Thomas’s ability to visit with his

attorney.”9

3 Doc. 87.

4 Id. at 16-21.

5 Id. at 20.

6 Id. at 38-43.

7 Id.

8 Id.

As to Thomas’ freedom of speech and association claims, Magistrate Judge

Schwab recommended that summary judgment be denied, as Defendants failed to

demonstrate a rational connection between their actions and any legitimate

penological interest.10 Magistrate Judge Schwab recommended that summary

judgment be granted as to Thomas’ equal protection and conditions of confinement

claims due to his failure to exhaust administrative remedies, and be denied as to

Thomas’ 42 U.S.C. §§ 1985(2) and 1986 conspiracy claims because Defendants

failed to proffer any argument in favor of summary judgment as to those counts.11

Over Defendants’ objections, this Court adopted the Report and Recommendation.12

After disposing of Defendants’ motion for summary judgment, six claims

remain in this matter, including Thomas’ claims for: (1) a violation of his right of

access to courts (Count II); (2) conspiracy to violate his right of access to courts

(Count III); (3) a violation of his rights to privacy, freedom of speech, and freedom

of association (Count IV); (4) conspiracy to violate his rights to privacy, freedom of

speech, and freedom of association (Count V); (5) conspiracy to deter him from

testifying in federal court (Count VII); and (6) the failure of certain Defendants to

prevent others from conspiring to deter Thomas from testifying in federal court

(Count VIII).

10 Id. at 44-47.

11 Id. at 26-33, 51.

Despite this matter ostensibly being ready to proceed to trial after the motion

for summary judgment was disposed of, trial has been delayed by a series of

additional motions that have since been filed. First, Defendants filed a motion to

disqualify Thomas’ attorney at trial, which this Court granted.13 Prior to the Court

granting that motion, Thomas filed a motion for sanctions related to the motion to

disqualify, which this Court denied.14 Thomas then filed a motion for reconsideration

of the Order denying sanctions, which was also denied.15 Now pending before the

Court is Thomas’ motion for judgment on the pleadings,16 which he asserts should

be granted because Defendants’ admissions establish the necessary elements of

every remaining claim.17

Defendants respond that the motion should be denied because (1) it is

untimely under Federal Rule of Civil Procedure 12(c), or because Thomas included

extraneous documents in his motion, which converts the motion into an untimely

motion for summary judgment and (2) in any event, any admissions are insufficient

to establish Defendants’ liability.18 Thomas has filed a reply brief,19 and this matter

is now ripe for disposition. For the following reasons, Thomas’ motion will be

denied.

13 Docs. 100, 127, 128.

14 Docs. 107, 114, 115.

15 Docs. 116, 125, 126.

16 Doc. 129.

17 Doc. 131.

18 Doc. 136.

II. DISCUSSION

“A motion for judgment on the pleadings under Rule 12(c) is analyzed under

the same standards that apply to a Rule 12(b)(6) motion.”20 Accordingly,

the court must view the facts presented in the pleadings and the

inferences to be drawn therefrom in the light most favorable to the

nonmoving party, and may not grant the motion unless the movant

clearly establishes that no material issue of fact remains to be resolved

and that he is entitled to judgment as a matter of law.21

“Thus, in deciding a motion for judgment on the pleadings, a court may only

consider the complaint, exhibits attached to the complaint, matters of public record,

as well as undisputedly authentic documents if the complainant’s claims are based

upon these documents.”22

A. Timeliness of Thomas’ Motion

Defendants first argue that Thomas’ motion for judgment on the pleadings is

untimely for two reasons. First, they assert that the motion will delay trial, and is

therefore untimely under Rule 12(c).23 Second, they contend that the inclusion of

materials outside of the pleadings should convert the motion to a motion for

summary judgment, which would be untimely under the Scheduling Order.24

20 Wolfington v. Reconstructive Orthopaedic Assocs. II PC, 935 F.3d 187, 195 (3d Cir. 2019)

(internal quotation marks omitted).

21 Id. (internal quotation marks omitted).

22 Id. (internal quotation marks omitted).

23 Doc. 136 at 2-3.

As to Defendants’ first argument, Federal Rule of Civil Procedure 12(c)

provides that motions for judgment on the pleadings may be filed “[a]fter the

pleadings are closed—but early enough not to delay trial.” “While such motions are

typically filed near the inception of the lawsuit and shortly after the pleadings

close,”25 motions for judgment on the pleadings “can be filed at any time before

trial.”26 When such motions are filed after the close of discovery and after the

dispositive motions deadline, courts have uniformly held that where the matter has

not yet been “scheduled . . . for trial . . . [a motion for judgment on the pleadings]

[ha]s undoubtedly” been filed early enough not to delay trial.27 Because trial has not

yet been scheduled in this matter, the Court concludes that Thomas’ motion was filed

“early enough not to delay trial”28 and, accordingly, the motion is timely.

As to Defendants’ assertion that the inclusion of materials beyond the

pleadings converts Thomas’ motion to a motion for summary judgment, the Federal

Rules of Civil Procedure state that, if in a motion for judgment on the pleadings

“matters outside the pleadings are presented to and not excluded by the court, the

25 Liburd v. Gov’t of Virgin Islands, No. CV 2011-020, 2013 WL 960780, at *3 (D.V.I. Mar. 13,

2013).

26 S.E.C. v. Wolfson, 539 F.3d 1249, 1264 (10th Cir. 2008).

27 Sullivan v. Everett Cash Mut. Ins. Co., No. 4:18-CV-00207-HLM, 2019 WL 3808463, at *1

(N.D. Ga. Feb. 21, 2019). See also Washington v. Matheson Flight Extenders, Inc., No. C17-

1925-JCC, 2021 WL 489090, at *2 n.4 (W.D. Wash. Feb. 10, 2021) (“Because no trial is

currently scheduled, [the] motion is timely”); Pulte Home Corp. v. Montgomery Cty., 271 F.

Supp. 3d 762, 769 n.3 (D. Md. 2017) (motion timely where “no trial date has been set”); In re

NC Swine Farm Nuisance Litig., No. 5:15-CV-00013-BR, 2017 WL 2312883, at *3 (E.D.N.C.

May 25, 2017) (concluding “there is no issue over delaying trial, given [that] trials have not

been scheduled”).

motion must be treated as one for summary judgment under Rule 56.”29 As this

language implies, where matters beyond the pleadings are included in a motion for

judgment on the pleadings, “the court has complete discretion to exclude them.”30

Here, as Thomas concedes, the declaration that he has attached to his motion

for judgment on the pleadings “has no relevance to any of the” dispositive issues in

his motion.31 Because the declaration is wholly irrelevant to the pending motion, the

Court will exclude that declaration and its accompanying attachments. This motion

therefore remains a motion for judgment on the pleadings and is not untimely.

B. Whether Thomas’ Claims are Established by the Admissions

Second, Defendants argue that Thomas’ motion fails on its merits; the Court

agrees, as any admissions are insufficient to warrant judgment on the pleadings. As

to four of Thomas’ claims, he faces an insurmountable hurdle in attempting to obtain

judgment on the pleadings: the existence of burden-shifting frameworks that permit

Defendants to argue that, even if they infringed upon Thomas’ constitutional rights,

that infringement was justified by the penological setting in which the infringements

occurred. These burden-shifting frameworks are “exceedingly fact-intensive,”32

which renders Thomas’ task of obtaining judgment on the pleadings difficult under

29 Fed. R. Civ. P. 12(d).

30 Allen v. Hays, 812 F. App’x 185, 189 (5th Cir. 2020) (internal quotation marks omitted).

31 Doc. 137 at 10.

any circumstances.33 Judgment on the pleadings is also not warranted for Thomas’

other two claims because any admissions do not satisfy all elements of those claims.

i. Freedom of Privacy, Speech, and Association Claims

With regard to Thomas’ freedom of speech and association claims, a prison

rule that “impinges on inmates’ constitutional rights, . . . is valid if it is reasonably

related to legitimate penological interests.”34 The burden rests with Defendants to

put forward a “legitimate governmental interest alleged to justify the regulation . . .

and demonstrate that [Defendants] could rationally have seen a connection between

the policy and that interest.”35 However, “[i]f such a rational relationship is found to

exist,” the burden would then shift to Thomas to show that Defendants’ actions or

rules were unreasonable.36

At the summary judgment stage, Defendants asserted that their actions were

rationally related to their interest in the safety and security of SCI Huntingdon. It is

33 See, e.g., Dubois v. Sweeney, No. CV 18-3718 (PGS-LHG), 2019 WL 2272789, at *3 (D.N.J.

May 28, 2019) (noting that arguments under burden-shifting framework are “better reserved

for summary judgment when it can be supported with evidence outside of the pleadings”);

Detmer v. Gilmore, No. 07-4177-CV-C-SOW, 2008 WL 2230698, at *2 (W.D. Mo. May 29,

2008) (noting that “facts outside plaintiff’s pleadings are necessary for a determination to be

made as to the reasonableness of the restrictions on his mail, and therefore, the issues in this

case are more appropriately addressed at summary judgment”); McKenzie v. O’Gara, 289 F.

Supp. 2d 389, 392 (S.D.N.Y. 2003) (arguments that relate to burden-shifting analysis are “more

appropriately made in the context of a motion for summary judgment pursuant to Rule 56,

rather than in a motion addressed to the face of the pleadings”).

34 Turner v. Safley, 482 U.S. 78, 89 (1987).

35 Jones v. Brown, 461 F.3d 353, 360 (3d Cir. 2006) (citation and internal quotation marks

omitted).

beyond cavil that prisons have “a ‘substantial interest’ in institutional security.”37

Despite this substantial interest, the Court denied summary judgment because

Defendants failed to proffer evidence in their summary judgment motion that

connected their actions with that legitimate penological interest.38

Nevertheless, Thomas asserts that Defendants’ admissions are sufficient to

establish their liability for this claim. Specifically, Thomas argues that Defendants

admitted—by virtue of their failure to properly deny the allegations in Thomas’

amended complaint—that no legitimate governmental interest was served by their

actions that restricted Thomas’ constitutional rights.39 Thomas’ mistaken argument

stems from a fundamental misunderstanding of the difference between a factual

allegation—which may be admitted based upon a failure to deny such allegation in

a complaint—and a legal assertion, which cannot be admitted by Defendants’ failure

to deny such an assertion.40

Although the United States Supreme Court has “noted the vexing nature of

the distinction between questions of fact and questions of law,”41 the United States

Court of Appeals for the Third Circuit has provided guidance on this issue. The Third

37 Id. at 361 (quoting Bieregu v. Reno, 59 F.3d 1445, 1458 (3d Cir. 1995)).

38 See Doc. 87 at 45-46.

39 Doc. 131 at 11-15.

40 See 5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1279 (3d

ed. 2020) (noting “that a defendant’s failure to deny conclusions of law does not constitute an

admission of those conclusions”); Dunbar v. Prelesnik, No. 16-1374, 2016 WL 11618615, at

*2 (6th Cir. Oct. 27, 2016) (holding that the “failure to [file an answer] constituted an

admission of all of the complaint’s factual allegations pursuant to Rule 8(b)(6)” (emphasis

added)).

Circuit has explained that there are generally three categories of assertions: basic

facts, inferred facts, and “ultimate facts.”42 “Basic facts are the historical and

narrative events elicited from the evidence presented at trial, admitted by stipulation,

or not denied, where required, in responsive pleadings.”43 “Inferred factual

conclusions are drawn from basic facts and are permitted only when, and to the

extent that, logic and human experience indicate a probability that certain

consequences can and do follow from the basic facts.”44 Finally, the Third Circuit

explained that:

An ultimate fact is usually expressed in the language of a standard

enunciated by case-law rule or by statute, e.g., an actor’s conduct was

negligent; the injury occurred in the course of employment; the rate is

reasonable; the company has refused to bargain collectively. The

ultimate finding is a conclusion of law or at least a determination of a

mixed question of law and fact.45

Here, the determination of whether Defendants had any “legitimate

penological interest[]”46 in taking certain actions that may have inhibited Thomas’

constitutional rights is plainly “a conclusion of law or at least a determination of a

mixed question of law and fact,” as it is “expressed in the language of a standard

enunciated by case-law rule or by statute.”47 Simply put, the answer to that question

42 In re 15375 Mem’l Corp. v. Bepco, L.P., 589 F.3d 605, 616 (3d Cir. 2009).

43 Universal Mins., Inc. v. C. A. Hughes & Co., 669 F.2d 98, 102 (3d Cir. 1981).

44 Id.

45 Id. See also In re 15375 Mem’l Corp., 589 F.3d at 616 (“whether the application of law to fact

was proper, is reviewed as an ultimate fact and is subject to plenary review because it is,

essentially, a conclusion of law”).

46 Safley, 482 U.S. at 89.

is one that a jury must derive from the facts presented at trial. As this Court has

previously explained,48 because Thomas’ assertions that Defendants had no

legitimate governmental interest in taking their actions are legal assertions,49 those

assertions are not admitted by virtue of Defendants’ failure to deny them.

Accordingly, it remains an open question—a question that may only be

answered at trial—whether Defendants’ actions were justified by a legitimate

governmental interest, and whether Defendants could rationally have seen a

connection between their actions and that interest.50 Thus, Defendants admissions

do not satisfy the elements of Thomas’ freedom of privacy, speech, and association

claim, and his motion for judgment on the pleadings must be denied as to Counts IV

and V.51

48 Doc. 125 at 9.

49 See Card v. Dugger, 709 F. Supp. 1098, 1101 n.2 (M.D. Fla. 1988) (“The reasonableness of

the changes in the No–Contact Visiting Park is a question of law (i.e., is the regulation

reasonably related to legitimate penological interests), not a question of fact”), aff’d, 871 F.2d

1023 (11th Cir. 1989).

50 Although Thomas makes much of the fact that Defendants “could not and did not pursue

discovery of any evidence of security concerns,” Doc. 131 at 15, discovery issues are not

relevant to a motion for judgment on the pleadings, which is cabined to the pleadings and other

relevant documents.

51 Although Count V alleges a conspiracy to deny Thomas his constitutional rights, “[i]n order to

prevail on a conspiracy claim under § 1983, a plaintiff must prove that persons acting under

color of state law conspired to deprive him of a federally protected right.” Ridgewood Bd. of

Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 254 (3d Cir. 1999). Because Thomas has not

demonstrated that Defendants intended to unlawfully deprive Thomas of his constitutional

ii. Access to Courts Claims

As Thomas’ access to courts claim, it is well established that “[u]nder the First

and Fourteenth Amendments, prisoners retain a right of access to courts.”52 To

establish this claim, Thomas “must show (1) that [he] suffered an ‘actual injury’—

that [he] lost a chance to pursue a ‘nonfrivolous’ or ‘arguable’ underlying claim; and

(2) that [he] ha[s] no other ‘remedy that may be awarded as recompense’ for the lost

claim other than in the present denial of access suit.”53 Critically, however, “this

right does not entail unfettered or totally unrestricted visitation with counsel, for it

must yield to legitimate penological interests.”54

Thus, again, regardless of whether Defendants’ actions impinged upon

Thomas’ right of access to courts, “so long as [those actions were] reasonably related

to legitimate penological interests, such [impingement is] not of constitutional

significance, even where [the impingement] result[ed] in actual injury.”55 Because,

as detailed above, Defendants have not admitted—and could not admit by operation

of Federal Rule of Civil Procedure 8(b)(6)—that their actions were not reasonably

related to a legitimate penological interest, Thomas has not established the elements

of his access to courts claim through the pleadings. Rather, Defendants must be

52 Monroe v. Beard, 536 F.3d 198, 205 (3d Cir. 2008).

53 Id.

54 Thomas v. Duvall, No. 3:16-CV-00451, 2019 WL 8013742, at *14 (M.D. Pa. Oct. 3, 2019)

(quoting Lane v. Tavares, No. 3:14-CV-00991, 2015 WL 435003, at *8 (M.D. Pa. Feb. 3,

2015)).

afforded the opportunity to establish at trial that their actions were reasonably related

to a legitimate governmental interest. Consequently, Thomas’ motion for judgment

on the pleadings must be denied as to Counts II and III.56

iii. Claims Related to Alleged Conspiracy to Deter Federal

Testimony

Finally, Thomas alleges that Defendants conspired to deter him from

testifying in federal court, in violation of 42 U.S.C. § 1985(2), and/or failed to

prevent others from conspiring to deter Thomas from providing such testimony, in

violation of 42 U.S.C. § 1986. With respect to these claims, Thomas faces a

different, but equally insurmountable hurdle in his quest to obtain judgment on the

pleadings: a failure to establish that Defendants conspired to use force, intimidation,

or threats to prevent Thomas from testifying at a federal hearing.

The Third Circuit has held that “[t]he essential allegations of a 1985(2) claim

of witness intimidation are (1) a conspiracy between two or more persons (2) to deter

a witness by force, intimidation or threat from attending court or testifying freely in

any pending matter, which (3) results in injury to the plaintiffs.”57 As those factors

56 Again, although Count III alleges a conspiracy to deny Thomas his constitutional rights,

because Thomas has not demonstrated that Defendants intended to unlawfully deprive Thomas

of his right of access to courts, he necessarily has not demonstrated that Defendants conspired

to so do.

make clear, an indispensable element of any claim under the first part of § 1985(2)

is an agreement to deter through the use of force, intimidation, or threats.58

Here, Thomas’ allegations—and, thus, any potential admissions—do not

support that element of a § 1985(2) claim. It is undisputed that only one incident is

actionable for Thomas’ § 1985(2) claim—Defendants’ purportedly disruptive

conduct on May 23, 2015.59 The vast majority of Thomas’ allegations relate to

Defendants’ failure to provide him with a sufficiently-private meeting room in which

to meet his attorney, as well as Defendants’ alleged failure to pass documents

between Thomas and his attorney in that non-contact room.60 Indeed, with respect

to Defendants Green and Eckard, Thomas alleges that they conspired to prevent

Thomas from testifying in federal court by placing him “and his attorney in a non-

contact booth having louvers in the outer door that allowed Duvall to listen to

Plaintiff’s attorney’s advice and” by failing “to furnish the booth with reasonable

means for Plaintiff to review the planned exhibits with the attorney to prepare to

testify.”61 Such conduct, even if true, simply cannot be said to involve force,

intimidation, or threats, nor from that alleged conduct could any reasonable

factfinder infer the existence of an agreement to use force, intimidation, or threats.

58 See 42 U.S.C. § 1985(2) (requiring a conspiracy “to deter, by force, intimidation, or threat, any

party or witness in any court of the United States from attending such court, or from testifying

to any matter pending therein, freely, fully, and truthfully”).

59 See Doc. 131 at 38 (asserting “[h]ere, the claims of Count VII and Count VIII are established.

The claims pertaining to events in May 2015 were filed in the Complaint of March 14, 2016”).

60 See Doc. 21 at ¶¶ 114-32, 186-87, 190-91.

The only conduct that Thomas alleges that could plausibly involve the use of

threats or intimidation relates to Duvall. In that respect, Thomas makes a series of,

at times, somewhat conclusory allegations that

Duvall spoke to Attorney Sawicki in a disrespectful and menacing

manner both before and during the attorney conference on May 23,

2015. Duvall also made numerous threatening and disparaging

comments while seated at the officers desk during Sawicki’s interview

with Thomas, knowing that Sawicki and Thomas would hear her hostile

remarks through the louvered door to the booth . . . Duvall persisted in

making audible hostile comments during the conference.62

Those allegations, while potentially involving intimidation or threats, do not

involve more than one individual, nor is there any allegation that Duvall agreed with

anyone else to take those actions, which is fatal to Thomas’ motion, as conspiracy

claims “require[] that two or more people conspire to do an unlawful act.”63 That is

to say, Thomas “must demonstrate that the state actors named as defendants in the

complaint somehow reached an understanding to deny the plaintiff his rights.”64

There is no well-pled allegation that anyone reached an understanding with Duvall

to use force, threats, or intimidation to deter Thomas from testifying at trial, nor do

any of the facts alleged lead inexorably to such an inference. At most, the allegations

permit the inference that Defendants agreed to prevent Thomas from testifying in

62 Id. ¶¶ 123-24.

63 McGreevy v. Stroup, 413 F.3d 359, 371 (3d Cir. 2005).

64 Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 295 (3d Cir. 2018) (brackets and internal

federal court by depriving him of the means to have a private conference with his

attorney, which would not be an unlawful act under § 1985(2).65

Accordingly, Thomas has not established that any Defendants entered into an

agreement to use force, intimidation, or threats to deter Thomas from testifying in

federal court, and he is not entitled to judgment on the pleadings as to count VII.

Similarly, because “transgressions of § 1986 by definition depend on a preexisting

violation of § 1985,”66 Thomas’ motion for judgment on the pleadings must also be

denied as to Count VIII.67

65 To the extent that Thomas relies on Paragraph 186 of the Amended Complaint to establish the

existence of a conspiracy to deter Thomas’ federal testimony through the use threats or

intimidation, the averments in that paragraph are “simply too conclusory, vague, and general

to” support his claim. Alhallaq v. Radha Soami Trading, LLC, 484 F. App’x 293, 297 (11th

Cir. 2012). See also Morast v. Lance, 807 F.2d 926, 930 n.4 (11th Cir. 1987) (noting that many

alleged “‘retaliations’ are conclusory in nature and are not specific examples of acts to deter

testimony or attendance ‘by force, intimidation, or threat’”). Additionally, Thomas’ allegation

that that Defendants Duvall and Wendle “conspired” with each other is an ultimate fact that,

as discussed previously, is not susceptible to admission based upon Defendants’ failure to deny

that allegation in their answer.

66 Clark v. Clabaugh, 20 F.3d 1290, 1295 (3d Cir. 1994) (internal quotation marks omitted).

67 Cf. Gary v. Pa. Hum. Rels. Comm’n, 497 F. App’x 223, 227 (3d Cir. 2012) (“Absent a valid

§ 1985(3) claim, [appellant’s] claim under 42 U.S.C. § 1986 fails, as liability under that statute

is predicated on actual knowledge of a § 1985 violation”). Moreover, even if Thomas could

establish his § 1985(2) claim, his complaint only alleges that Defendants Wendle, Green, and

Eckard knew that Duvall and others “had communicated to one another their intent to deprive

prisoners like Thomas of access to the means of having a policy-compliant confidential contact

visit with their attorney.” Doc. 21 ¶ 147; see id. ¶ 190. This does not establish that those

individuals had actual knowledge of a conspiracy to use of force, intimidation, or threats to

III. CONCLUSION

The Court concludes that the allegations in the Amended Complaint, and any

admissions by Defendants, are insufficient to establish Defendants’ liability as to

any of the remaining six counts. Consequently, the Court will deny Thomas’ motion

for judgment on the pleadings.

An appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

United States District Judge