Miller v. Machoga

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF PENNSYLVANIA

RYAN E. MILLER, :

Plaintiffs : CIVIL ACTION NO. 3:17-0771

v. : (JUDGE MANNION)

C.O. MACHOGA, et al., :

Defendants :

MEMORANDUM

I. Background

Plaintiff, Ryan E. Miller, an inmate currently confined at the Benner

State Correctional Institution, Bellefonte, Pennsylvania, filed the above

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

complains of an event that occurred at his former place of confinement,

Mahanoy State Correctional Institution (“SCI-Mahanoy”), Frackville,

Pennsylvania. Id. The named Defendants are the following SCI-Mahanoy

employees: C/O Brett Machuga, C/O Christopher Swartz, C/O Robert

Evans, C/O Robert Gee, C/O Brandon Reigh, C/O Jesse Flannery, Lt.

Donald Rakus, Lt. Kevin Clark, Security Lt. Thomas Biscoe, Counselor

Harry Carodiskey, Superintendent Theresa DelBalso, Deputy

1

Superintendent Bernadette Mason, Deputy Superintendent Luke

Cronauer, and Margaret Ward, R.N. Id.

Plaintiff seeks compensatory and punitive damages for an incident

which allegedly occurred on December 14, 2016, wherein Miller asserts

that certain Defendants assaulted him after he set fire to his cell and other

named Defendants failed to intervene during the alleged physical assault.

Id.

Specifically, Plaintiff claims that he “was told to exit his cell” and

when he “exited and was brought to the ground upon the handcuffs being

put on [he] told [Officer Machuga] that they were too tight” and “he started

choking me and said, ‘is this to tight’ and punched me in the face

repeatedly until was unconscious using excessive force,” and “[his] face

completely batured (sic).” Id. Plaintiff claims that he was “then awoken by

the handcuffs cutting off circulation in [his] hand.” Id. He states that

“medical took photos and documented all” and that “all was done on video”

and “at no time was [he] resisting.” Id.

Plaintiff further alleges that CO Swartz “violated [his] 8th Amendment

right to be free from cruel and unusual punishment by kneeing [him] in the

face while walking to the triage room” and “when [he] asked him to stop

2

using so much force on [his] wrists [he] shoved [him] onto the triage room

bed, leaving a gash and bruise.” Id. Again, Plaintiff claims “at no time was

[he] resisting.” Id. Plaintiff states that Correctional CO Gee used excessive

force “by covering [Plaintiff’s] running bloody nose and mouth with

[Plaintiff’s] thermal top [he] was wearing, causing [Plaintiff] to not be able

to breath.” Id. Plaintiff claims he “asked him multiple times to remove it,

telling him [he] can’t breathe.” Id. Plaintiff believes this was “done as a

means of torturing counter measure.” Id. Plaintiff claims that the remaining

Defendants failed to intervene and failed to report their fellow officers for

using excessive force. Id.

Presently before the Court is Defendants’ motion for summary

judgment. (Doc. 35). The motion is fully briefed and is ripe for disposition.

For the reasons set forth below, this Court will grant Defendants’ motion

for summary judgment.

II. Summary Judgment

Federal Rule of Civil Procedure 56(a) requires the court to render

summary judgment “if the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter

3

of law.” Fed. R. Civ. P. 56(a). “[T]his standard provides that the mere

existence of some alleged factual dispute between the parties will not

defeat an otherwise properly supported motion for summary judgment; the

requirement is that there be no genuine issue of material fact.” Anderson

v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986).

A disputed fact is “material” if proof of its existence or nonexistence

would affect the outcome of the case under applicable substantive law. Id.

at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.

1992). An issue of material fact is “genuine” if the evidence is such that a

reasonable jury could return a verdict for the nonmoving party. Anderson,

477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and

Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).

When determining whether there is a genuine issue of material fact,

the court must view the facts and all reasonable inferences in favor of the

nonmoving party. Moore v. Tartler, 986 F.2d 682 (3d Cir. 1993); Clement

v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v.

Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid

summary judgment, however, the nonmoving party may not rest on the

unsubstantiated allegations of his or her pleadings. When the party

4

seeking summary judgment satisfies its burden under Rule 56 of

identifying evidence which demonstrates the absence of a genuine issue

of material fact, the nonmoving party is required by Rule 56 to go beyond

his pleadings with affidavits, depositions, answers to interrogatories or the

like in order to demonstrate specific material facts which give rise to a

genuine issue. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The

party opposing the motion “must do more than simply show that there is

some metaphysical doubt as to the material facts.” Matsushita Electric

Indus. Co. v. Zenith Radio, 475 U.S. 574, 586 (1986). When Rule 56 shifts

the burden of production to the nonmoving party, that party must produce

evidence to show the existence of every element essential to its case

which it bears the burden of proving at trial, for “a complete failure of proof

concerning an essential element of the nonmoving party’s case

necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 323.

See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).

In determining whether an issue of material fact exists, the court

must consider the evidence in the light most favorable to the nonmoving

party. White, 862 F.2d at 59. In doing so, the Court must accept the

nonmovant’s allegations as true and resolve any conflicts in his favor. Id.

5

(citations omitted). However, a party opposing a summary judgment

motion must comply with Local Rule 56.1, which specifically directs the

oppositional party to submit a “statement of the material facts, responding

to the numbered paragraphs set forth in the statement required [to be filed

by the movant], as to which it is contended that there exists a genuine

issue to be tried”; if the nonmovant fails to do so, “[a]ll material facts set

forth in the statement required to be served by the moving party will be

deemed to be admitted.” L.R. 56.1. A party cannot evade these litigation

responsibilities in this regard simply by citing the fact that he is a pro se

litigant. These rules apply with equal force to all parties. See Sanders v.

Beard, No. 09-CV-1384, 2010 WL 2853261, at *5 (M.D. Pa. July 20, 2010)

(pro se parties “are not excused from complying with court orders and the

local rules of court”); Thomas v. Norris, No. 02-CV-01854, 2006 WL

2590488, at *4 (M.D. Pa. Sept. 8, 2006) (pro se parties must follow the

Federal Rules of Civil Procedure).

Significantly, where events at issue have been captured on

videotape, as is the case here, the court must consider that videotaped

evidence in determining whether there is any genuine dispute as to

material facts. See Scott v. Harris, 550 U.S. 372, 380-81 (2007). The court

6

must view the facts in the light depicted by the videotape. See id. (relying

on a videotape in assessing summary judgment evidence and

admonishing that the lower court “should have viewed the facts in the light

depicted by the videotape.”).

III. Statement of Undisputed Facts

On December 14, 2016, Plaintiff was incarcerated in the Restrictive

Housing Unit (“RHU”) at SCI-Mahanoy. (Doc. 37-2, Miller Deposition). The

alleged incident began at approximately 1:30pm on December 14, 2016.

Id. On that date and time, Plaintiff wanted to go to “group” so that he could

watch television and “hang out.” Id. Defendant C.O. Machuga would not

let Plaintiff go to group. Id. This made Plaintiff “very angry.” Id. In fact, it

caused Plaintiff to “act out” by lighting his trash can and blanket on fire. Id.

Plaintiff set the fire with a lighter. Id. The purpose of lighting the fire was to

“say[] like you’re not going to burn me and get away with it.” Id. Before

lighting the fire, Plaintiff covered the windows of his cell in order to draw

the attention of corrections officers. Id. Then “[he] got the lighter out, put

the trash can near [his] door and blanket, and lit it on fire.” Id. He lit the fire

7

“right next to [the door].” Id. The reason Plaintiff set the fire was to “get

attention and make [the corrections officers’] jobs hard.” Id.

The incident is captured on both closed-circuit and handheld video.

(Doc. 37-7). The closed-circuit video depicts three officers initially

responding to flames coming out of the wicket in Plaintiff’s cell door. Id.

The officers can be seen dragging a hose over to the cell door and putting

it through the wicket to extinguish the fire. Id. Additional officers join in to

help. Id. Once the fire was extinguished, Plaintiff’s cell door was opened.

Id. Plaintiff proceeded to rush or “charge” through the cell door into the

officers. Id. Corrections officers struggled to restrain Plaintiff, who was

being combative. Id. At no point in time does the video depict any officer

striking Plaintiff or using excessive force against him. Id. Once Plaintiff was

successfully restrained, he was escorted to the RHU triage room to be

seen by medical. Id.

Once Plaintiff was escorted to the triage room, the video changes

over to a handheld video with audio. Id. In the triage room, Plaintiff was

placed face down on the medical bed located in the room. Id. Once Plaintiff

was placed on the bed, C.O. Flannery had to control Plaintiff’s legs due to

Plaintiff’s combative behavior, including kicking. Id. Once C.O. Flannery

8

deemed that it was safe to release Plaintiff’s legs, he did so. Id. C.O. Evans

was responsible for securing Plaintiff’s left shoulder while he was on the

medical table. While Plaintiff’s legs were secured on the medical table,

Plaintiff complained about not being able to breathe. Id. In response, the

Lieutenant in the room said “alright,” moved to the right side of the medical

table and told officers to “get the noose off [Plaintiff’s] neck.” Id. The

“noose” was a sheet or a pillowcase that Plaintiff placed around his face

before setting the fire, so that he could breathe without inhaling smoke.

(Doc. 37-2, Miller Deposition). Corrections officers removed the sheet from

around Plaintiff’s neck while he was in the triage room. (Doc. 37-7,

handheld video). Once the sheet was removed, Plaintiff’s breathing

became more regular, and he relaxed on the medical table. Id. After the

sheet was removed from Plaintiff’s neck, he began to complain about

something being on his face. Id. An officer is heard saying, “…you spit,”

and the officer then explains that Plaintiff’s mouth was temporarily covered

with the top collar of Plaintiff’s thermal shirt to prevent Plaintiff from

spitting. Id. Plaintiff continued to complain about not being able to breathe,

yet he was talking and yelling through most of the time he spent in the

9

triage room. Id. Finally, Plaintiff can be heard saying “I’m done resisting.”

Id.

While in the triage room, Plaintiff asked for more room to move. Id.

An officer responded by saying, “you just assaulted officers and now you

want room to move.” Id. Plaintiff responded, “I didn’t hit anybody...I mighta

charged ya, I didn’t hit ya...”. Id. Plaintiff then admitted to “tackling” a

corrections officer and to setting the fire in his cell, indicating that the lighter

was still in his pants. Id. The officers then removed the lighter from

Plaintiff’s pants. Id.

Margaret Ward, R.N. treated Plaintiff in the triage room. Id. Plaintiff

complained of pain to his right wrist, but no treatment was required. Id.

Nurse Ward tended to a small cut on the right side of Plaintiff’s forehead.

Id. After being treated and having photos taken, Plaintiff was escorted out

of medical triage to a cell. Id. After securing the door of the cell, staff then

removes Miller’s handcuffs. Id. Staff then exit the area, and the camera

operator remains at Miller’s cell door for approximately five additional

minutes. Id. Although Miller continues to yell through the cell door that he

is “all beat up,” that the officers hit him “like six times” and “broke both [his]

thumbs,” he holds his wrists at the window of the cell door and only a small

10

red mark on each wrist is visible as well as a small cut on his head. Id. The

camera operator then leaves the cell door and walks into a hallway to his

right where a debriefing is conducted. Id. All officers reported their

equipment was intact. Id. Defendants’ affidavits in support of their motion

for summary judgment reveal that Defendants Machuga, Swartz, Evans,

Gee, Flannery, were the named Defendants who responded to the fire in

Plaintiff’s cell. (Doc. 37). Correctional Officer Reigh was responsible for

video-recording the events that transpired in the triage room. Id.

IV. DISCUSSION

Plaintiff has brought his Eighth Amendment excessive force claim

pursuant to 42 U.S.C. §1983, which provides, in pertinent part:

Every person who, under color of any statute, ordinance,

regulation, custom, or usage, of any State or Territory,

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 proceeding for

redress.

“To establish a claim under 42 U.S.C. §1983, [a plaintiff] must

demonstrate a violation of a right secured by the Constitution and the laws

of the United States [and] that the alleged deprivation was committed by a

11

person acting under color of state law.” Moore v. Tartler, 986 F.2d 682,

685 (3d Cir. 1993). “The first step in evaluating a section 1983 claim is to

‘identify the exact contours of the underlying right said to have been

violated’ and to determine ‘whether the plaintiff has alleged a deprivation

of a constitutional right at all’.” Nicini v. Morra, 212 F.3d 798, 806 (3d Cir.

2000) (quoting County of Sacramento v. Lewis, 523 U.S. 833, 841 n.5

(1998)).

A. Excessive Force Claim

The cruel and unusual punishment clause of the Eighth Amendment

protects inmates against the application of excessive force by correctional

officers. See Whitley v. Albers, 475 U.S. 312, 318–19 (1986). In an

excessive force claim, the core judicial inquiry is not whether a certain

quantum of injury was sustained, but rather whether force was applied in

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

sadistically to cause harm. Wilkins v. Gaddy, 559 U.S. 34 (2010). In

applying this test, courts are tasked with considering the following 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 injury

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

12

reasonably perceived by the responsible officials on the basis of the facts

known to them; and (5) any efforts made to temper the severity of a forceful

response. Id.

The reasonableness of a particular use of force is often dependent

upon the relevant factual context and must be “judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20

vision of hindsight.” Graham v. Connor, 490 U.S. 386, 396-97 (1989); see

also Fuentes v. Wagner, 206 F.3d 335, 346 (3d Cir. 2000) (“[E]ven if we

concede [that an inmate] has established at most that prison officials

overreacted to the disturbance that he caused . . . any such over-reaction

would still fall short of supporting a finding that prison officials acted

‘maliciously and sadistically to cause harm.’”). Additionally, de minimis use

of physical force does not qualify as excessive force unless the force is

“repugnant to the conscience of mankind.” Brooks v. Kyler, 204 F.3d 102,

107 (3d Cir. 2000) (citing Hudson, 503 U.S. at 6); see also Wilkins, 559

U.S. 34 (clarifying that de minimis force, rather than de minimis injury, is

the dispositive issue). Not “every malevolent touch by a prison guard gives

rise to a federal cause of action.” Hudson, 503 U.S. at 9. To that end, when

“it appears that the evidence, viewed in the light most favorable to the

13

plaintiff, will [not] support a reliable inference of wantonness in the infliction

of pain,” summary judgment is appropriate. Brooks, 204 F.3d at 106

(quoting Whitley, 475 U.S. at 322).

Conversely, “when prison officials maliciously and sadistically use

force to cause harm…contemporary standards of decency are always

violated . . . whether or not significant injury is evident. Otherwise, the

Eighth Amendment would permit any physical punishment, no matter how

diabolic or inhuman, inflicting less than some arbitrary quantity of injury.”

Wilkins, 559 U.S. at 37 (quoting Hudson, 503 U.S. 1).

Here, the surveillance video, without audio, commences with three

Officers approaching Plaintiff’s cell, assessing, retreating, and returning

with a hose to extinguish the fire through the wicket. Additional officers join

the original officers. Once the fire is extinguished and the hose is removed

from the wicket, the officers open the door and through the smoke it can

be seen that Plaintiff rushes forward into the officers. The video reveals

that the officers quickly restrained Plaintiff and escorted him to the triage

room.

The videotape evidence clearly demonstrates that Defendants

resorted to force to effect compliance only after Plaintiff rushed the

14

officers. It also reveals that Defendants fully comported with the directives

contained in DC-ADM 201 which authorizes use of force against an inmate

when a staff member reasonably believes such force is necessary to

protect oneself or others and/or to effect compliance with the rules and

regulations when other methods of control are ineffective or insufficient.

As concerns the relationship between the amount of force used and

efforts made to temper the severity of a forceful response, the video shows

a consistent and measured application of force by Defendants to quell

Plaintiff’s aggressive manner and to regain control of the situation. It does

not portray any Defendant striking Plaintiff in the face or on his head,

thereby dispelling Miller’s assertions that Defendants pushed, kicked, and

punched Plaintiff. It also demonstrates that Defendants’ actions complied

with the DC-ADM 201 directive that when force is used, the least amount

of force the staff member reasonably believes is necessary to achieve the

authorized purpose is to be used. See DC-ADM 201, Section III(B). Also,

importantly, once the Plaintiff was placed on the floor, the application of

force immediately ceased. Id. (stating that “the use of force must stop once

control is achieved”).

15

Finally, Plaintiff suffered a small superficial laceration to the top of

his head. (Doc. 37-7). He was able to move, flex and extend the fingers,

bilateral hands, and wrists. Although it is not required that he show more

than a de minimis injury, see Wilkins, 559 U.S. at 39 (clarifying the notion

that a significant injury is a threshold requirement for stating an excessive

force claim was rejected in Hudson, 503 U.S. at 7), the “absence of [a]

serious injury” nevertheless remains relevant in an Eighth Amendment

inquiry. Id. at 40 (noting that the extent of injury may provide some

indication of the amount of force applied, and stating that “[a]n inmate who

complains of a ‘push or shove’ that causes no discernible injury almost

certainly fails to state a valid excessive force claim”) (citing Hudson, 503

U.S. at 9 (internal quotations omitted).

Where a videotape refutes an inmate’s claims that excessive force

was used against him, and the video evidence does not permit an

inference that prison officials acted maliciously and sadistically, summary

judgment is entirely appropriate. See Tindell v. Beard, 351 F. App’x 591

(3d Cir. 2009). The video footage of this incident would lead a reasonable

trier of fact to find that Defendants used the amount of force necessary to

bring Plaintiff into compliance. Id. at 596; see also, Whitley, 475 U.S. at

16

319; Fuentes v. Wagner, 206 F.3d 335, 346 (3d Cir. 2000) (noting that

even a prison officer’s “over-reaction” to an inmate-caused disturbance

would fall short of supporting a finding of excessive force where the totality

of the circumstances indicated that the force was applied in a good faith

effort to maintain order). No aspect of the video, or any other portion of the

record, supports an assertion that Defendants Machuga, Swartz, Evans,

Gee, Flannery or Reigh acted maliciously or sadistically to cause harm.

Thus, summary judgment in Defendants’ favor is appropriate.

B. Failure to Intervene Claim

Courts recognize a closely related Eighth Amendment cause of

action based upon a failure to intervene when other prison officials use

excessive force. According to the United States Court of Appeals for the

Third Circuit, “a corrections officer’s failure to intervene in a beating can

be the basis of liability for an Eighth Amendment violation under §1983 if

the corrections officer had a reasonable opportunity to intervene and

simply refused to do so.” Smith v. Mensinger, 293 F.3d 641, 650 (3d Cir.

2002). To state a valid cause of action “in a case where an inmate claims

an officer had a duty to take reasonable steps to protect a victim from

another officer's use of excessive force, the inmate must prove that (1) the

17

officer had a duty to intervene; (2) the officer had the opportunity to

intervene; and (3) the officer failed to intervene.” Knauss v. Shannon, No.

08-cv-1698, 2010 WL 569829 (M.D. Pa. Feb. 12, 2010) (citing Smith, 293

F.3d at 650–51). “Additionally, it is plaintiff’s burden to adduce evidence of

[these] requirements.” Smith v. Donate, No. 10-cv-2133, 2012 WL

3537017, at *9 (M.D. Pa. June 15, 2012) (quoting Yarnall v. Mendez, 509

F. Supp. 2d 421, 433 (D. Del. 2007)). See also Gainor v. Douglas County,

Ga., 59 F. Supp. 2d 1259, 1289 (N.D. Ga. 1998) (“[P]laintiff must proffer

evidence that the officer in question had a reasonable opportunity to

intervene.”).

Here, the undisputed facts cannot establish a failure to intervene

claim as a matter of law. The remaining Defendants had no duty to

intervene, because at no point did any excessive force occur. Further, as

the video tape evidence points out, the physical force used lasted only

minutes, and thus, even if the force were excessive, Defendants lacked a

“realistic and reasonable” opportunity to intervene. See Ricks v. Shover,

891 F.3d 468, 479 (3d Cir. 2018); Smith, 293 F.3d at 651. As such, the

Court will grant summary judgment in favor of the remaining Defendants,

and against Plaintiff on the failure to intervene claim.

18

C. Personal Involvement

A plaintiff, in order to state an actionable civil rights claim, must plead

two essential elements: (1) that the conduct complained of was committed

by a person acting under color of law, and (2) that said conduct deprived

the plaintiff of a right, privilege, or immunity secured by the Constitution or

laws of the United States. See Groman v. Township of Manalapan, 47 F.3d

628, 638 (3d Cir. 1995); Shaw by Strain v. Strackhouse, 920 F.2d 1135,

1141-42 (3d Cir. 1990).

Furthermore, federal civil rights claims brought under §1983 cannot

be premised on a theory of respondeat superior. Rode v. Dellarciprete,

845 F.2d 1195, 1207 (3d Cir. 1988). Rather, each named defendant must

be shown, via the complaint’s allegations, to have been personally

involved in the events or occurrences which underlie a claim. See Rizzo

v. Goode, 423 U.S. 362 (1976); Hampton v. Holmesburg Prison Officials,

546 F.2d 1077 (3d Cir. 1976). As explained in Rode:

A defendant in a civil rights action must have personal

involvement in the alleged wrongs.... [P]ersonal involvement

can be shown through allegations of personal direction or of

actual knowledge and acquiescence. Allegations of

participation or actual knowledge and acquiescence, however,

must be made with appropriate particularity.

Rode, 845 F.2d at 1207.

19

Inmates also do not have a constitutional right to a prison grievance

system. See Jones v. North Carolina Prisoners Labor Union, 433 U.S. 119,

137-138 (1977); Speight v. Sims, No. 08-2038, 2008 WL 2600723 at *1

(3d. Cir. Jun 30, 2008)(citing Massey v. Helman, 259 F.3d 641, 647 (7th

Cir. 2001)(“[T]he existence of a prison grievance procedure confers no

liberty interest on a prisoner.”)). Consequently, any attempt by Plaintiff to

establish liability against a defendant solely based upon the substance or

lack of response to his institutional grievances does not by itself support a

constitutional due process claim. See also Alexander v. Gennarini, 144

Fed. Appx. 924, 925 (3d Cir. 2005)(involvement in post-incident grievance

process not a basis for §1983 liability); Prvor-El v. Kelly, 892 F. Supp. 261,

275 (D. D.C. 1995) (because prison grievance procedure does not confer

any substantive constitutional rights upon prison inmates, the prison

officials’ failure to comply with grievance procedure is not actionable).

With respect to Defendants Superintendent DelBalso, Deputy

Superintendent Mason, Deputy Superintendent Cronauer and Security Lt.

Biscoe, the Complaint generally contends only that they were aware of the

December 14, 2016 incident and did not try to stop or protect Plaintiff.

20

Based on those vague assertions and the record which reveals the

only involvement of these Defendants were through their involvement with

Plaintiff’s grievances, it is apparent that Plaintiff is attempting to establish

liability against these Defendants based upon either their respective

supervisory capacities or their review of his institutional grievances.

Pursuant to the above discussion, either approach is insufficient for

establishing civil rights liability against those Defendants and they are

entitled to judgment as a matter of law.

Moreover, the daily rosters for December 14, 2016 reveal that

Defendants Rakus and Clark1 were not assigned to the RHU on December

14, 2016 and Defendants Cronauer and Biscoe did not work on December

14, 2016. (Doc. 37-16). Thus, providing further support for their lack of

personal involvement in the December 14, 2016 incident.

1 Plaintiff concedes that Defendants Rakus, and Clark should be

dismissed from the above captioned action. (See Doc. 50 at 5-8).

21

V. Conclusion

For the reasons set forth above, the Court will grant the Defendants’

motion for summary judgment.

A separate Order shall issue.

s/ Malachy E. Mannion

MALACHY E. MANNION

United States District Judge

DATE: March 22, 2022

17-0771-01

22