Zamichieli v. Ficks

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

LAMONT ZAMICHIELI, :

Plaintiff : CIVIL ACTION NO. 3:18-0850

v. : (JUDGE MANNION)

JAMIE FICKS, et al., :

Defendants :

MEMORANDUM

I. BACKGROUND

Plaintiff, Lamont Zamichieli, an inmate currently confined in the

Phoenix State Correctional Institution, Collegeville, Pennsylvania, filed the

above caption civil rights action pursuant to 42 U.S.C. §1983. (Doc. 1). He

complains of incidents which occurred at three prior places of confinement,

SCI-Mahanoy, SCI-Green and SCI-Huntingdon. Id. The named Defendants

are Jamie Ficks, CRNP (“Ficks”), Sgt. Harpster; K. Ressler; Deputy Tice;

Morris L Houser; G. McMahon; Correctional Officer Butler; Richard Gross,

Lp[m]; Nurse Melissa; Pennsylvania Department of Corrections; Correctional

Officer Stacy Baumbarger and several John and Jane Does. Id. Plaintiff

contends that all named Defendants violated various constitutional rights. Id.

For relief, Plaintiff seeks compensatory and punitive damages. Id.

Presently before the Court is Defendant Ficks’ motion to dismiss. (Doc.

31). The motion is fully briefed and is ripe for disposition. For the reasons set

forth below, the Court will deny, in part and grant, in part, Defendant Ficks’

motion to dismiss.

II. ALLEGATIONS IN COMPLAINT

Plaintiff alleges that he was seen by Defendant Ficks “in Medical Dept

at SCI-Rockview on 7/11/16…on [his] birthday” and they “had sexual

conversation, she masturbated [his] penis, then took [his] blood pressure,”

which was “high plus fast heart rate because of that hand exercise she gave

[him] as she pulled it out of [his] pants.” (Doc. 1, complaint). Plaintiff was then

“housed in infirmary for that day after EKG was taken.” Id.

On July 14, 2016, Plaintiff was again seen in medical by Defendant

Ficks and “this time Jamie Ficks after kissing hugging Sgt. Harpster in

[Plaintiff’s] presence whispered in his ear [and] told him to make sure no one

enters the room while she handle [Plaintiff].” Id. Defendant Ficks then

“performed oral sex on [Plaintiff],” with Plaintiff claiming that “sex with her

was non-consensual” and “she ha[d] taken advantage of [Plaintiff]” because

“she’s staff so I must do what she tells me to do” except he “didn’t follow one

part of her order because [he] ejaculated semen into her mouth on 7/14/16

approx. 10:15 am.” Id. Because of this, Plaintiff claims that Defendant Ficks

“felt guilty and mad at [him], so instead of her writing a misconduct on

[Plaintiff], she told Sgt. Harpster to write a fabricated misconduct on [him],

just so she won’t have to raise red flags under her name because (1) she’s

not licensed practitioner (2) she didn’t want to write anything to incriminate

herself.” Id.

On July 14, 2016, at approximately 10:15 am, Plaintiff was issued

Misconduct B951368, charging him with Sexual Harassment, Indecent

Exposure and Destroying, Altering, Tampering or Damaging Property, as

follows:

On the above time and date inmate LW2870 Zamichieli was seen

by nurse practitioner J. Ficks. While being seen inmate LW2870

had his hand in his pocket and ejaculated into his hand and

wiped his hand on the back of J. Ficks’ jacket which was hanging

on the back of her chair.

J. Ficks states this said jacket is worth about $18 to $20.00.

(Doc. 1 at 27, Misconduct Report).

Plaintiff states that after his encounter with Defendant Ficks he “went

back to BB Block from medical appointment, sex abuse by Ficks” and

“reported it to a C/O and Sgt that [he] wanted to file PREA” because he

“fear[ed] for safety because abuse by Ficks” and “they said they notify Shift

Commander and instructed [Plaintiff] to calm down and go to [his] cell.” (Doc.

1). Plaintiff claims that “about an hour later [he] was told [he] was being taken

to hospital to preserve evidence of Ficks saliva mouth fluids on [his] penis

and pants but instead [he] was taken to RHU/DTU on misconduct fabricated

by Sgt. Harpster on 7/14/16 on behalf of Jamie Ficks.” Id.

Plaintiff was found guilty of the misconduct for indecent exposure and

sanction to thirty (30) days disciplinary custody, after which he was released

back to general population. Id. Plaintiff states that he “appealed all the way

to final review, pleading [his] innocence but they still denied [his] request for

relief to overturn the misconduct.” Id.

On October 13, 2016, Plaintiff filed Grievance No. 648269, claiming,

inter alia, that he was a victim of sexual abuse on July 14, 2016 by Defendant

Ficks and that it is “she [who] needs sex programs.” (Doc. 1 at 33, Official

Inmate Grievance).

By Response dated October 19, 2016, Grievance No. 648269 was

denied as follows:

Inmate Zamichieli files this grievance claiming numerous

concerns: 1) a PREA violation against Nurse Practitioner-Ficks, 2)

A sex offender evaluation recommendation made by PSS-Tice,

and 3) Removal from the Nov. parole docket. He claims he is not

a sex offender and PSS-Tice is not a classification counselor &

therefore has no authority to recommend programming which

wasn’t recommended during the classification process at SCI-

Camp Hill. Additionally, he shouldn’t have been removed from the

parole docket because of his treatment recommendation. He

seeks relief in the form of: 1) The SOP program being removed

from this Correctional Plan, 2) PSS-Tice to be given a 30-day

suspension without pay, 3) To be given a loaner TV with free cable

for a few months, 4) $50 worth of commissary for the next 5

months and 5) $95,000 in compensation. Upon review,

investigation, and discussion I’ve found the following:

Issue 1) DC-ADM 804 Grievance system is not intended for the

reporting of PREA incidents, “Any allegation of sexual nature

(abuse-harassment) against a staff member or inmate-on-inmate

sexual abuse must be addressed through Department policy DC-

ADM 008, “Prison Rape Elimination Act (PREA).” Additionally,

DC-ADM 008 PREA states, “inmates shall not utilize the inmate

grievance system to report sexual abuse or sexual harassment

by a staff member or inmate-on-inmate sexual abuse.” However,

this allegation has been forwarded to the SCI-Rockview Security

Office for investigation.

Issue 2) PSS-Tice, who is the sex offender program facilitator, has

made a recommendation for a sex offender evaluation following

inmate Zamichieli’s misconduct on 07/14/16 for Sexual

Harassment & Indecent Exposure. Specifically, he sexually

aroused himself & subsequently ejaculated on a lab coat of Nurse

Practitioner-Ficks which was hung on her office chair. Additionally,

Zamichieli ha a prior Admin/Sep transfer request on 1/6/16

because of his infatuation with 2 female medical providers at SCI-

Mahanoy. Lastly, inmate Zamichieli has a history of 12 Indecent

Exposure and/or Sexual Harassment misconducts. There has

been no specific recommendation for sex offender treatment, only

a recommendation to participate in an evaluation for possible

treatment. Lastly, given inmate Zamichieli’s history of sexual

inappropriate behaviors during his incarceration, a

recommendation for sex offender evaluation is appropriate and

PSS-Tice is a qualified staff member to make this

recommendation, to conduct the specific evaluation and to make

any recommendations for programming.

Issue 3) Upon discussion with SCI-Rockview Supervisor-Winck,

inmate Zamichieli remains on the November 2016 parole docket.

Grievance & Relief Denied.

(Doc. 1 at 29, Initial Review Response (emphasis in original)).

Plaintiff states that on October 25, 2016, his “population placement

was revoked” and he was “placed on AC status in DTU pending separation

transfer for 2 months” and was told “it was for [his] own safety away from

Jamie Ficks and Inmate Shipman.” Id. Plaintiff believes his transfer was “out

of retaliation” for filing a PREA complaint. Id.

Plaintiff claims that Defendant Ficks violated his Eighth Amendment

Right “to not undergo cruel and unusual punishment on 7/14/16 when she

knowingly, intentionally performed oral sex on Zamichieli, she sexually

assaulted Zamichieli and bit his penis causing painful scar, bruising, injuries,

also on 7/11/16.” Id. Plaintiff alleges that Ficks also violated his Eighth

Amendment by “denying, delaying him medical treatment for injuries caused

by her” by being “deliberately indifferent to Zamichieli’s safety and serious

medical needs in medical department on SCI-Rockview on 7/11/16 and

7/14/16.” Id. Additionally, he claims that Defendant Ficks “used excessive

force planned maliciously in her right state of mind by using force by threat

of bodily harm, death when Zamichieli didn’t consent to sexual relations with

her, she abused her power and threatened with misconduct reports also bit

Zamichieli penis…force was unnecessary.” Id. Plaintiff also alleges a First

Amendment retaliation claim against Ficks, claiming she retaliated against

him for his using the grievance system, by having Defendant Harpster file a

false misconduct against him on her behalf, as well as having Plaintiff

transferred. Id.

II. MOTION TO DISMISS

Federal notice and pleading rules require the complaint to provide the

defendant notice of the claim and the grounds upon which it rests. See

Phillips v. Cty. of Allegheny, 515 F.3d 224, 232 (3d Cir. 2008). The plaintiff

must present facts that, accepted as true, demonstrate a plausible right to

relief. See Fed. R. Civ. P. 8(a). Although Federal Rule of Civil Procedure

8(a)(2) requires “only a short and plain statement of the claim showing that

the pleader is entitled to relief,” a complaint may nevertheless be dismissed

under Federal Rule of Civil Procedure 12(b)(6) for its “failure to state a claim

upon which relief can be granted.” See Fed. R. Civ. P. 12(b)(6).

When ruling on a motion to dismiss under Rule 12(b)(6), the court

accepts as true all factual allegations in the complaint and all reasonable

inferences that can be drawn from them, viewed in the light most favorable

to the plaintiff. See Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009); In re Ins.

Brokerage Antitrust Litig., 618 F.3d 300, 314 (3d Cir. 2010). To prevent

dismissal, all civil complaints must set out “sufficient factual matter” to show

that their claims are facially plausible. See Iqbal, 556 U.S. at 678; Fowler v.

UPMC Shadyside, 578 F.3d 203, 210 (3d Cir. 2009). The plausibility

standard requires more than a mere possibility that the defendant is liable

for the alleged misconduct: “[W]here the well-pleaded facts do not permit the

court to infer more than the mere possibility of misconduct, the complaint has

alleged – but it has not ‘show[n]’ – ‘that the pleader is entitled to relief.’ ” See

Iqbal, 556 U.S. at 679 (citing Fed. R. Civ. P. 8(a)(2)).

Accordingly, the Third Circuit has identified the following steps that a

district court must take when reviewing a 12(b)(6) motion: (1) identify the

elements that a plaintiff must plead to state a claim; (2) identify any

conclusory allegations contained in the complaint that are “not entitled” to the

assumption of truth; and (3) determine whether any “well-pleaded factual

allegations” contained in the complaint “plausibly give rise to an entitlement

to relief.” See Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)

(internal citations and quotation marks omitted). The Third Circuit has

specified that in ruling on a Rule 12(b)(6) motion to dismiss for failure to state

a claim, “a court must consider only 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.”

See Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension

Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d

Cir. 1993)).

In the context of pro se prisoner litigation, the court must be mindful

that a document filed pro se is “to be liberally construed.” See Estelle v.

Gamble, 429 U.S. 97, 106 (1976). A pro se complaint, “however inartfully

pleaded,” must be held to “less stringent standards than formal pleadings

drafted by lawyers” and can be dismissed for failure to state a claim only if it

appears beyond a doubt that the plaintiff can prove no set of facts in support

of his claim that would entitle him to relief. See Haines v. Kerner, 404 U.S.

519, 520-21 (1972).

IV. DISCUSSION

A. Eighth Amendment Claims

i. Eighth Amendment Sexual Abuse Claim

The Eighth Amendment governs claims brought by convicted inmates

challenging their conditions of confinement. Hubbard v. Taylor, 399 F.3d

150, 166 (3d Cir. 2005). Sexual abuse of inmates or detainees may violate

the Eighth Amendment. Ricks v. Shover, 891 F.3d 468, 473 (3d Cir. 2018)

(“[P]rison sexual abuse can violate the Constitution”).

In the Eighth Amendment context, a plaintiff must satisfy both an

objective and subjective prong akin to excessive force claims. Ricks, 891

F.3d at 475. In that regard, the conduct in question must be “objectively,

sufficiently intolerable and cruel, capable of causing harm and the official

must have a culpable state of mind.” Id. “Regarding the subjective prong,

[the Court] consider[s] whether the official had a legitimate penological

purpose or if he or she acted maliciously and sadistically for the very purpose

of causing harm.” Id. (internal quotations omitted).

An Eighth Amendment claim for sexual abuse or harassment requires

a showing of physical contact with the alleged perpetrator. See Williams v.

Wetzel, 776 F. App’x 49, 53 (3d Cir. 2019) (affirming dismissal of Eighth

Amendment sexual conduct claim because the allegations did not involve

any sexual contact between the prisoner and the corrections officer);

Armstrong v. Diraimo, Civ. A. No. 17-237, 2018 WL 6788524, at *4 (W.D.

Pa. Dec. 26, 2018), aff’d, 781 F. App’x 61 (3d Cir. 2019); McCain v. Wetzel,

Civ. A. No. 17-194, 2018 WL 1211507, at *3 (W.D. Pa. Mar. 8, 2018) (“sexual

harassment in the absence of contact or touching does not establish an

Eighth Amendment violation”); Washington v. Gilmore, Civ. A. No. 15-1031,

2017 WL 4155371, at *8 (W.D. Pa. Aug. 31, 2017) (dismissing Eighth

Amendment sexual assault claim where plaintiff did not allege any “direct

physical contact” with the alleged perpetrators). “Verbal harassment,

including lewd comments, sexual propositioning, and the like, is not sufficient

to satisfy the objective element of an Eighth Amendment sexual harassment

claim.” McCain, 2018 WL 1211507, at *3 (citing Manon v. Garrison, 2012 WL

3542328 (M.D. Pa. Aug. 15, 2012)). Rather, “physical sexual assault or

threats of physical assault is required for the objective element to be met.”

Id.

Here, Plaintiff alleges inappropriate direct physical contact between he

and Defendant Ficks. Thus, the Court finds that Plaintiff has alleged enough

to create a plausible Eighth Amendment claim against Defendant Ficks. The

Court recognizes that discovery may well reveal that the alleged conduct

does not give rise to an Eighth Amendment claim, but at this early stage of

the litigation, the allegations of the Complaint must be accepted as true, and

all reasonable inferences must be drawn in Plaintiff’s favor.

ii. Excessive Force Claim

The thrust of Plaintiff’s complaint is straightforward: he alleges that

Defendant Ficks unlawfully bit his genitalia while engaging in inappropriate

sexual conduct with him. (Doc. 1).

The Third Circuit has clarified that “the pivotal inquiry in reviewing an

inmate’s §1983 claim for excessive force is ‘whether force was applied in a

good-faith effort to maintain or restore discipline, or maliciously and

sadistically to cause harm’.” Smith v. Mensinger, 293 F.3d 641, 649 (3d Cir.

2002) (quoting Brooks v. Kyler, 204 F.3d 102, 106 (3d Cir. 2000)). In

conducting this analysis of the officer’s intent, we consider five factors: “(1)

the need for the application of force; (2) the relationship between the need

and the amount of force that was used; (3) the extent of the injury inflicted;

(4) the extent of the threat to the safety of staff and inmates, as reasonably

perceived by responsible officials on the basis of facts known to them; and

(5) any efforts made to temper the severity of the forceful response.” Id.

(quoting Brooks, 204 F.3d at 106). The objective component of the excessive

force inquiry is met when “the inmate’s injury was more than de minimis.”

Fuentes v. Wagner, 206 F.3d 335, 345 (3d Cir. 2000).

Affording Plaintiff, a pro se litigant, the benefit of any doubt, the Court

finds that because Plaintiff’s allegation that Defendant Ficks engaged in

unconstitutional conduct survives Defendants’ motion to dismiss, Plaintiff’s

allegation that Defendant Ficks bit his genitalia while engaging in

unconstitutional conduct will require further development.

iii. Eighth Amendment Deliberate Indifference

The Eighth Amendment “requires prison officials to provide basic

medical treatment to those whom it has incarcerated.” Rouse v. Plantier, 182

F.3d 192, 197 (3d Cir. 1999) (citing Estelle v. Gamble, 429 U.S. 97 (1976)).

In order to establish an Eighth Amendment medical claim, an inmate must

allege acts or omissions by prison officials sufficiently harmful to evidence

deliberate indifference to a serious medical need. See Spruill v. Gillis, 372

F.3d 218, 235-36 (3d Cir. 2004); Natale v. Camden Ctv. Correctional Facility,

318 F.3d 575, 582 (3d Cir. 2003). In the context of medical care, the relevant

inquiry is whether the defendant was: (1) deliberately indifferent (the

subjective component) to (2) the plaintiff’s serious medical needs (the

objective component). Monmouth Cty. Corr. Inst. Inmates v. Lanzaro, 834

F.2d 326, 346 (3d Cir. 1987); West v. Keve, 571 F.2d 158, 161 (3d Cir. 1979).

A serious medical need is “one that has been diagnosed by a physician

as requiring treatment or one that is so obvious that a lay person would easily

recognize the necessity for a doctor’s attention.” Monmouth Cty. Corr. Inst.

Inmates, 834 F.2d at 347. “[I]f unnecessary and wanton infliction of pain

results as a consequence of denial or delay in the provision of adequate

medical care, the medical need is of the serious nature contemplated by the

Eighth Amendment.” Young v. Kazmerski, 266 Fed. Appx. 191, 193 (3d Cir.

2008)(quoting Monmouth Cty. Corr. Inst. Inmates, 834 F.2d at 347).

With respect to the subjective deliberate indifference component, the

Supreme Court has established that the proper analysis for deliberate

indifference is whether a prison official “acted or failed to act despite his

knowledge of a substantial risk of serious harm.” Farmer v. Brennan, 511

U.S. 825, 841 (1994). A complaint that a physician or a medical department

“has been negligent in diagnosing or treating a medical condition does not

state a valid claim of medical mistreatment under the Eighth Amendment [as]

medical malpractice does not become a constitutional violation merely

because the victim is a prisoner.” Estelle, 429 U.S. at 106.

When a prisoner has actually been provided with medical treatment,

one cannot always conclude that, if such treatment was inadequate, it was

no more than mere negligence. See Durmer v. O’Carroll, 991 F.2d 64, 69

(3d Cir. 1993). It is true, however, that if inadequate treatment results simply

from an error in medical judgment, there is no constitutional violation. See

id. However, where a failure or delay in providing prescribed treatment is

deliberate and motivated by non-medical factors, a constitutional claim may

be presented. See id.; Ordonez v. Yost, 289 Fed. Appx. 553, 555 (3d Cir.

2008)(“deliberate indifference is proven if necessary medical treatment is

delayed for non-medical reasons.”). The Court of Appeals for the Third

Circuit in Durmer added that a non-physician defendant cannot be

considered deliberately indifferent for failing to respond to an inmate’s

medical complaints when he is already receiving treatment by the prison’s

medical staff. However, where a failure or delay in providing prescribed

treatment is deliberate and motivated by non-medical factors, a constitutional

claim may be presented. See id.

Plaintiff has failed to satisfy the deliberate indifference requirement of

Estelle. Assuming without deciding that Plaintiff suffered from a serious

medical need or condition, Plaintiff’s complaint fails to demonstrate that he

requested medical treatment from Defendant Ficks and she intentionally

withheld treatment from Plaintiff in order to inflict pain or harm upon Plaintiff.

Farmer, 511 U.S. at 837; Rouse, 12 F.3d at 197. In fact, aside from his own

medical assessment that his genitalia suffered “painful scar, bruises &

injuries,” there is no indication at all in the complaint that he sought medical

treatment for his alleged injuries. (See Doc. 1 at 21). Thus, the Court finds

that Plaintiff’s civil rights complaint fails to articulate an arguable Eighth

Amendment deliberate indifference claim. See White, 897 F.2d at 108-110.

B. First Amendment Retaliation Claim

Section 1983 provides a cause of action against any person who,

under color of law, “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.”

42 U.S.C. §1983 (2012). To prevail, Plaintiff therefore must show “(1)

constitutionally protected conduct, (2) retaliatory action sufficient to deter a

person of ordinary firmness from exercising his constitutional rights, and (3)

a causal link between the constitutionally protected conduct and the

retaliatory action.” Zimmerlink v. Zapotsky, 539 Fed.Appx. 45, 48 (3d Cir.

2013) (quoting Thomas v. Indep. Twp., 463 F.3d 285, 296 (3d Cir. 2006)).

That an adverse action occurs following protected activity does not suffice to

establish a causal link between the two events. Lape v. Pennsylvania, 157

Fed.Appx. 491, 498 (3d Cir. 2005). Timing alone can suffice to establish a

causal link, but the timing of the retaliatory action must be “unusually

suggestive” of a retaliatory motive. Krouse v. Am. Sterilizer Co., 126 F.3d

494, 503 (3d Cir. 1997); see Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.

1989) (finding that a plaintiff-employee demonstrated a causal link by the

circumstances that discharge followed rapidly, only two days later, upon

employer’s receipt of plaintiff’s EEOC claim). A defendant may not be held

liable for retaliation absent evidence sufficient to show that the defendant

knew of the plaintiff’s protected activity. See Laskaris v. Thornburgh, 733

F.2d 260, 265 (3d Cir. 1984).

If Plaintiff makes out a prima facie case, the burden shifts to

Defendants to prove that “they would have made the same decision absent

the protected conduct for reasons reasonably related to [a legitimate]

penological interest.” Carter v. McGrady, 292 F.3d 152, 154 (3d Cir. 2002)

(quoting Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001)). If Defendants

are able to meet this burden, they are entitled to have the claim dismissed.

See Rauser, 241 F.3d at 334. “[C]ourts should afford deference to decisions

made by prison officials, who possess the necessary expertise.” Id.

Plaintiff alleges that Defendant Ficks “retaliated against Plaintiff for his

using of grievance system, etc. exercise 1st amendment right when she

maliciously told Defendant Sgt Harpster to warrant false misconduct again

[him] on her behalf to avoid self-incrimination and had other Defendants

retaliate for her in numerous ways to harm [Plaintiff] prevent access to

court/speech.” (Doc. 1 at 21). Additionally, he claims that Defendant Ficks’

“retaliatory misconduct against Plaintiff has initiated a retaliatory transfer by

Defendants.” Id.

Plaintiff’s retaliation claim against Defendant Ficks fails for several

reasons. Initially, by Plaintiff’s own account, he was not engaged in

constitutionally protected activity when issued Misconduct B951368. He

claims that he engaged in a sexual encounter with Defendant Ficks on July

11, 2016 and July 14, 2016. He states the sexual encounter of July 14, 2016

occurred at “approx. 10:15 am”, which is the time Misconduct B951368 was

written. (See Doc. 1 at 10, 27). Thus, Plaintiff was not engaged in a

constitutionally protected activity at the time he was issued Misconduct

B951368. In fact, Plaintiff’s own exhibits demonstrate that Plaintiff did not file

a grievance regarding his alleged encounter with Defendant Ficks until the

filing of Grievance No. 648269 on October 13, 2016. Consequently, Plaintiff’s

own allegations and exhibits defeat Plaintiff’s claim that he was issued

Misconduct B951368 in retaliation for using the grievance system.

Likewise, Plaintiff’s own allegations fail to establish that Defendant

Ficks was in any way involved in the Security Officer’s October 25, 2016

decision to place Plaintiff on Administrative Custody status pending an

administrative separation transfer. (See Doc. 1 at 28). Plaintiff’s exhibit

makes no indication that Defendant Ficks is the subject of the separation

transfer, nor the author of the transfer. Thus, Plaintiff’s claim that Defendant

Ficks retaliated against him by transferring or causing him to be transferred

to another institution fails.

V. CONCLUSION

Based on the foregoing, the Court will grant Defendant Ficks’ motion

to dismiss Plaintiff’s Eighth Amendment deliberate indifference claim and

Plaintiff’s First Amendment retaliation claim. Defendant Ficks’ motion to

dismiss will be denied as to Plaintiff’s Eighth Amendment excessive force

and sexual assault claims.

A separate Order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: March 17, 2022

18-0850-01