Fennell v. Luther

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

ROBERT FENNELL, No. 4:21-CV-01717

Plaintiff, (Chief Judge Brann)

v.

SECRETARY JOHN E. WETZEL, et

al.,

Defendants.

MEMORANDUM OPINION

FEBRUARY 1, 2023

Plaintiff Robert Fennell is currently confined at the State Correctional

Institution in Camp Hill, Pennsylvania (SCI Camp Hill). He filed the instant pro

se Section 19831 action claiming that officials at a different correctional facility

violated his constitutional rights with regard to management of the COVID-19

pandemic. Presently pending is Defendants’ motion to dismiss under Federal Rule

of Civil Procedure 12(b)(6). The Court will grant Defendants’ motion.

I. BACKGROUND

Fennell initially filed suit in September 2021, asserting constitutional torts

that allegedly occurred at both SCI Mahanoy and SCI Smithfield and which were

1 42 U.S.C. § 1983. Section 1983 creates a private cause of action to redress constitutional

wrongs committed by state officials. The statute is not a source of substantive rights; it serves

as a mechanism for vindicating rights otherwise protected by federal law. See Gonzaga Univ.

purportedly committed by different prison officials at the respective facilities.2

Those claims and defendants, however, were completely unrelated and thus were

inappropriately combined in a single complaint in violation of Federal Rule of

Civil Procedure 20(a)(2).3 Fennell conceded as much, and the Court accordingly

severed the two cases.4

The instant case—number 4:21-cv-01717—was reserved for Fennell’s

claims against two SCI Smithfield officials: Superintendent Jamey P. Luther and

Officer Harpster.5 As part of the severance order, the Court required Fennell to file

an amended complaint that set forth only his claims concerning the alleged

constitutional violations that occurred at SCI Smithfield.6 Fennell complied, and in

his amended complaint named an additional defendant: former Secretary of the

Pennsylvania Department of Corrections (DOC) John E. Wetzel.7

Fennell’s amended complaint concerns alleged events at SCI Smithfield

from approximately March 2020 to January 2021. He claims that, in March 2020,

Wetzel issued a “statewide lockdown” of all DOC facilities and canceled in-person

visitation to prevent the spread of COVID-19.8 Shortly thereafter, Luther ordered

2 See generally Doc. 1.

3 See Doc. 45 at 2 ¶ 1(a).

4 See id. at 2 ¶¶ 1(a), 2.

5 See id. at 2 ¶ 2(a).

6 Id.

7 See Doc. 47 ¶ 2.

8 Id. ¶¶ 7-8.

all SCI Smithfield inmates to remain in their assigned housing units.9 Fennell

additionally alleges that Luther “allowed [SCI] Smithfield employee[]s to enter

SCI Smithfield without being vaccinated” and that Harpster assigned employees to

different units every day when they reported for work.10

Fennell avers that, in October 2020, Luther issued a memorandum informing

inmates that “A unit” was under quarantine due to an outbreak of COVID-19

caused by a staff member who had infected 85 percent of all A unit inmates.11

Fennell claims that Luther and Harpster then issued an order that required inmates

who were 14 days post-infection to be housed on other units with inmates who did

not have COVID-19.12 Fennell further asserts that, on December 22, 2020, Luther

ordered Harpster to move all uninfected inmates from Fennell’s housing unit to A

unit.13 Fennell alleges that he and other uninfected inmates were simultaneously

sent to the day room of GA unit while COVID-19-infected inmates were placed

into GA unit.14

Early the following morning, Fennell recalls that he was placed in a cell on

A unit which had recently housed an infected inmate who had been moved to the

hospital “an hour ago.”15 Fennell claims that he repeatedly refused to enter the cell

9 Id. ¶ 9.

10 Id. ¶¶ 10-11.

11 Id. ¶ 12.

12 Id. ¶¶ 13-14.

13 Id. ¶ 15.

14 Id. ¶¶ 16-18.

15 Id. ¶¶ 20-23.

but was warned that if he failed to enter the cell he would be placed in the

Restricted Housing Unit (RHU).16 Fennell ultimately complied, averring that he

“was forced to reside within the infected cell for over eight . . . hours” until he was

moved to a different cell (“AA-16”), which had also recently housed an infected

inmate.17

Fennell alleges that on January 25, 2021, he tested positive for COVID-19

during a routine screening.18 He claims that he was subsequently informed that he

had been infected by a corrections officer who had been “forced to conduct a cell

inspection of all inmates[’] cells,” which resulted in the officer spreading COVID-

19 “from one cell to another” during the searches.19

Fennell asserts three separate Section 1983 counts against Wetzel, Luther,

and Harpster,20 but his claims all sound in deliberate indifference to prisoner health

and safety in violation of the Eighth Amendment. He also raises a state-law

negligence claim against all Defendants.21 Defendants move to dismiss Fennell’s

complaint under Federal Rule of Civil Procedure 12(b)(6).22 Defendants’ motion is

fully briefed and ripe for disposition.

16 Id. ¶¶ 24-25.

17 Id. ¶¶ 26-27.

18 Id. ¶ 28.

19 Id. ¶ 29.

20 See id. ¶¶ 39-62.

21 Id. ¶¶ 63-68. Fennell additionally includes a fifth count that he describes as “willful and

wanton misconduct,” see id. ¶¶ 69-73, but this is not a cognizable constitutional or state-law

tort and the allegations in this count are repetitive of the first four counts.

22 See generally Doc. 48.

II. STANDARD OF REVIEW

In deciding a motion to dismiss under Federal Rule of Civil Procedure

12(b)(6), courts should not inquire “whether a plaintiff will ultimately prevail but

whether the claimant is entitled to offer evidence to support the claims.”23 The

court must accept as true the factual allegations in the complaint and draw all

reasonable inferences from them in the light most favorable to the plaintiff.24 In

addition to the facts alleged on the face of the complaint, the court may also

consider “exhibits attached to the complaint, matters of public record, as well as

undisputedly authentic documents” attached to a defendant’s motion to dismiss if

the plaintiff’s claims are based upon these documents.25

When the sufficiency of a complaint is challenged, the court must conduct a

three-step inquiry.26 At step one, the court must “tak[e] note of the elements [the]

plaintiff must plead to state a claim.”27 Second, the court should distinguish well-

pleaded factual allegations—which must be taken as true—from mere legal

conclusions, which “are not entitled to the assumption of truth” and may be

disregarded.28 Finally, the court must review the presumed-truthful allegations

23 Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); see Nami v. Fauver, 82 F.3d 63, 66 (3d Cir.

1996).

24 Phillips v. County of Allegheny, 515 F.3d 224, 229 (3d Cir. 2008).

25 Mayer v. Belichick, 605 F.3d 223, 230 (3d Cir. 2010) (citing Pension Benefit Guar. Corp.

v. White Consol. Indus., 998 F.2d 1192, 1196 (3d Cir. 1993)).

26 Connelly v. Lane Const. Corp., 809 F.3d 780, 787 (3d Cir. 2016) (internal citations and

quotation marks omitted) (footnote omitted).

27 Id. (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (alterations in original)).

28 Id. (quoting Iqbal, 556 U.S. at 679).

“and then determine whether they plausibly give rise to an entitlement to relief.”29

Deciding plausibility is a “context-specific task that requires the reviewing court to

draw on its judicial experience and common sense.”30

Because Fennell proceeds pro se, his pleadings are to be liberally construed

and his amended complaint, “however inartfully pleaded, must be held to less

stringent standards than formal pleadings drafted by lawyers[.]”31 This is

particularly true when the pro se litigant, like Fennell, is incarcerated.32

III. DISCUSSION

Before addressing Defendants’ Rule 12 arguments, the Court must identify

Fennell’s claimed constitutional violation or violations.33 Fennell asserts that

Defendants infringed his “Fifth, Eighth, and Fourteenth Amendment rights,” but it

is clear that Fennell’s Section 1983 claims sound in failure to protect or failure to

intervene under the Eighth Amendment. Fennell’s invocation of the Fourteenth

Amendment appears to be solely in the context of applying the Eighth

Amendment’s prohibition of cruel and unusual punishment to Pennsylvania

29 Id. (quoting Iqbal, 556 U.S. at 679).

30 Iqbal, 556 U.S. at 681.

31 Erickson v. Pardus, 551 U.S. 89, 94 (2007) (citations omitted).

32 Dooley v. Wetzel, 957 F.3d 366, 374 (3d Cir. 2020) (citation omitted).

33 Albright v. Oliver, 510 U.S. 266, 271 (1994) (“The first step in any [Section 1983] claim is to

identify the specific constitutional right allegedly infringed.”); Graham v. Connor, 490 U.S.

386, 394 (1989) (explaining that analysis of a Section 1983 claim requires “identifying the

specific constitutional right allegedly infringed by the challenged” conduct).

through the Fourteenth Amendment.34 And, although Fennell also appears to

invoke the due process clause of the Fifth Amendment, he does not explain how

this constitutional provision (which concerns the federal government) is implicated

in his lawsuit against state prison officials.

To state an Eighth Amendment claim against a prison official for deliberate

indifference to inmate health or safety, the inmate must plausibly plead that “(1) he

was incarcerated under conditions posing a substantial risk of serious harm, (2) the

official was deliberately indifferent to that substantial risk to [the prisoner’s] health

and safety, and (3) the official’s deliberate indifference caused [the prisoner]

harm.”35 In this context, deliberate indifference is a subjective standard; that is,

“the prison official-defendant must actually have known or been aware of the

excessive risk to inmate safety.”36 Actual knowledge or awareness of a substantial

risk to an inmate’s safety can be proven “in the usual ways, including inference

from circumstantial evidence.”37

Fennell’s Eighth Amendment claims have multiple shortcomings. The

Court will discuss these deficiencies in turn.

34 See Holland v. Rosen, 895 F.3d 272, 288 (3d Cir. 2018) (citing Baker v. McCollan, 443 U.S.

137, 144 n.3 (1979)).

35 Bistrian v. Levi, 696 F.3d 352, 367 (3d Cir. 2012), abrogated on other grounds by Mack

v. Yost, 968 F.3d 311 (3d Cir. 2020).

36 Id. (quoting Beers-Capitol v. Whetzel, 256 F.3d 120, 125 (3d Cir. 2001)).

37 Id. (quoting Farmer v. Brennan, 511 U.S. 825, 842 (1994)).

A. Personal Involvement

It is well established that, in Section 1983 actions, liability cannot be

“predicated solely on the operation of respondeat superior.”38 Rather, a Section

1983 plaintiff must aver facts that demonstrate “the defendants’ personal

involvement in the alleged misconduct.”39 Personal involvement can include direct

wrongful conduct by a defendant, but it can also be demonstrated through

allegations of “personal direction” or of “actual knowledge and acquiescence”;

however, such averments must be made with particularity.40

Fennell’s complaint is deficient as to Wetzel because the allegations therein

do not implicate Wetzel’s personal involvement in a purported constitutional

violation. Fennell’s allegations against Wetzel are as follows: (1) Wetzel issued a

“statewide lockdown” of all DOC facilities and canceled in-person visitation to

prevent the spread of COVID-1941; (2) Wetzel “failed to intervene” when he was

informed that Luther implemented a rule that “repeatedly mix[ed]” infected

inmates with uninfected inmates42; (3) Wetzel issued a mandate to all DOC

facilities “to cease all inmate movement” and visitation and to have infected

inmates quarantine in place43; and (4) when Wetzel received grievances

38 Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (citations omitted); see also Ashcroft

v. Iqbal, 556. U.S. 662, 676 (2009) (affirming same principle in Bivens context).

39 Dooley, 957 F.3d at 374 (citing Rode, 845 F.2d at 1207).

40 Id. (quoting Rode, 845 F.2d at 1207).

41 Doc. 47 ¶¶ 7-8.

42 Id. ¶ 40.

43 Id. ¶ 48.

“complaining of the repeated cell moves and searches during the COVID-19

pandemic,” he “ordered that all cell searches stop due to the risk of staff spreading

COVID-19.”44

None of these allegations implicate an Eighth Amendment failure-to-protect

or failure-to-intervene violation by Wetzel. The first, third, and fourth allegations

in fact, demonstrate exactly the opposite of deliberate indifference to inmate health

and safety, as they show that Wetzel took affirmative action to protect prisoners

and DOC staff. As to Fennell’s allegation that Wetzel “failed to intervene” when

he was informed that Luther was mixing infected and uninfected inmates, this

conclusory allegation is insufficient to state a plausible claim for relief against

Wetzel.45 This claim additionally fails because it has no causal connection to

Fennell’s claimed injury, as will be discussed in more detail below.

Fennell argues that Wetzel’s personal involvement is shown because he

“minimized and disregarded” Fennell’s complaints about the mixing of prisoners

and “only conducted a shoddy investigation into some of [Fennell]’s allegations.”46

None of these allegations appear in the amended complaint, and Fennell cannot

amend his pleadings through a brief in opposition to a motion to dismiss.47 Even if

44 Id. ¶¶ 57-58.

45 See Iqbal, 556 U.S. at 679.

46 Doc. 56 at 2.

47 See Frederico v. Home Depot, 507 F.3d 188, 201-02 (3d Cir. 2007) (citing Pa. ex rel.

Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988)).

they were included in the amended pleading, minimizing a prisoner’s complaints

or “conducting a shoddy investigation” into a prisoner’s allegations—while

perhaps not reflective of perfect performance—by no means implicates deliberate

indifference, which is a stringent standard to meet.

Fennell additionally argues that his allegations show Wetzel’s “participation

in or actual knowledge and acquiescence in the wrongful conduct,”48 but this

contention is simply incorrect. His allegations against Wetzel—as recited above—

show no such thing. In his opposition brief, Fennell also raises a completely

undeveloped claim that Wetzel can be held liable under a theory of supervisory

liability for his “policies or practices,”49 but nothing in Fennell’s amended

complaint would establish the requisite elements for a supervisory liability claim

based on an unconstitutional policy or practice implemented by Wetzel. In fact,

the policies that Fennell alleges Wetzel implemented were designed to protect

inmates’ health and safety. Consequently, Fennell’s claims against Wetzel are

fatally deficient and must be dismissed.

B. Causation

A more global problem with Fennell’s amended complaint is that almost

none of the purported unconstitutional conduct he alleges has any connection to his

claimed injury—contracting COVID-19 on January 25, 2021. Fennell complains

48 Doc. 56 at 3.

49 See id.

of multiple alleged management lapses by Luther and Harpster in October and

December 2020 (like “mixing” infected and uninfected inmates, transferring

inmates to different housing units, placing Fennell in cells where the previous

inmate was infected, etc.), but none of these actions are plausibly related to the

injury he claims he suffered. In other words, even if the purported conduct of

Luther and Harpster in 2020 somehow violated the Eighth Amendment, Fennell

cannot establish causation for his Section 1983 claims.50

Fennell avers that he tested positive for COVID-19 on January 25, 2021, and

that—as he is a “single cell inmate”—his infection was caused by a corrections

officer, who was forced to perform cell inspections, “transmitting COVID-19 from

one cell to another.”51 Thus, the only allegation in Fennell’s complaint that has

any connection to his injury is his claim that Harpster ordered SCI Smithfield staff

50 It is well settled that, for Section 1983 liability to obtain, the purported unconstitutional

conduct must proximately cause the alleged injury. See Martinez v. California, 444 U.S. 277,

285 (1980) (explaining that, for Section 1983 claims, which are “a species of tort liability,”

alleged constitutional violation must have “proximately caused” plaintiff’s injury); Hedges v.

Musco, 204 F.3d 109, 121 (3d Cir. 2000) (“It is axiomatic that [a] § 1983 action, like its state

tort analogs, employs the principle of proximate causation.” (internal quotation marks and

citation omitted)) (collecting cases); see also Bistrian, 696 F.3d at 367 (stating that third

element of failure-to-protect claim is that deliberate indifference must cause prisoner’s harm).

51 Doc. 47 ¶¶ 28-29. The Court observes that Fennell’s COVID-19 infection—which occurred

over a month after most of the events alleged in his amended complaint—falls far outside the

mean three- to seven-day incubation period following exposure to COVID-19 and its variants.

See CENTERS FOR DISEASE CONTROL & PREVENTION, https://www.cdc.gov/coronavirus/2019-

ncov/hcp/clinical-care/clinical-considerations-presentation.html#:~:text=Incubation%20

Period,from%20exposure%20to%20symptom%20onset (last visited Jan. 27, 2023).

to resume cell searches in contravention of guidance issued by Wetzel several

months earlier.52

C. Qualified Immunity

Assuming that Fennell’s single allegation against Harpster regarding

resumption of cell searches satisfies the pleading requirements for an Eighth

Amendment claim, the claim must still be dismissed because Harpster is insulated

from liability by qualified immunity. “Qualified immunity shields federal and

state officials from money damages unless a plaintiff pleads facts showing (1) that

the official violated a statutory or constitutional right, and (2) that the right was

‘clearly established’ at the time of the challenged conduct.”53 The Court has

“discretion to decide which of the two prongs of qualified-immunity analysis to

tackle first.”54

“A Government official’s conduct violates clearly established law when, at

the time of the challenged conduct, ‘[t]he contours of [a] right [are] sufficiently

clear’ that every ‘reasonable official would [have understood] that what he is doing

52 See Doc. 47 ¶¶ 58-60. In various places in Fennell’s complaint, he asserts that SCI Smithfield

correctional officers were not vaccinated against COVID-19 and intimates that this was

somehow a policy choice by Luther and Harpster. Fennell apparently overlooks the fact that

the FDA did not provide emergency authorization for the first COVID-19 vaccine until mid-

December 2020, see U.S. DEP’T OF HEALTH & HUMAN SERVS.,

https://www.hhs.gov/coronavirus/covid-19-vaccines/index.html (last visited Jan. 27, 2022),

and that vaccine availability was initially limited to specific high-risk cohorts for several

months before the general public had access, see id. (noting that it was not until April 19, 2021,

that all people 16 years of age and older were eligible for the COVID-19 vaccine).

53 Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (citation omitted).

54 Id.

violates that right.’”55 “[C]learly established rights are derived either from binding

Supreme Court and Third Circuit precedent or from a ‘robust consensus of cases of

persuasive authority in the Courts of Appeals.’”56 And “[u]nless the plaintiff’s

allegations state a claim of violation of clearly established law, a defendant

pleading qualified immunity is entitled to dismissal before the commencement of

discovery.”57

Defendants assert that, regardless of the Eighth Amendment right involved

in Fennell’s allegations of Defendants’ handling of COVID-19 in 2020 and early

2021, no right was “clearly established.” As explained above, there is only a single

right (concerning the resumption of cell searches in prison during the early stages

of the COVID-19 pandemic despite DOC guidance to the contrary) that could have

any causal connection to Fennell’s alleged injury. And the Court agrees with

Defendants that such a right was not clearly established at the time the conduct

purportedly occurred.

Fennell fails to cite a single Supreme Court or Circuit Court of Appeals case

post-dating the start of the COVID-19 pandemic that would demonstrate that his

claims involve clearly established rights. In fact, none of the cases he cites deals

with the unquestionably novel circumstances created by the COVID-19 pandemic

55 Id. at 741 (alterations in original) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)).

56 Bland v. City of Newark, 900 F.3d 77, 84 (3d Cir. 2018) (quoting Fields v. City of Philadelphia,

862 F.3d 353, 361 (3d Cir. 2017)).

57 Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).

in prison settings. Furthermore, Fennell’s briefing only addresses his allegations of

mixing infected and uninfected inmates and being forced to reside in a cell that had

previously housed an infected inmate.58 As explained above, these claims have no

causal connection to Fennell’s injury and therefore are irrelevant to the qualified

immunity analysis. Nor can the Court independently identify a Supreme Court or

Third Circuit case or a “robust consensus of cases” from other circuits showing

that Harpster violated a clearly established right at the time of his alleged conduct.

This Court is acutely aware of the complexity and unprecedented nature of

the COVID-19 pandemic, especially as it relates to prison management. As the

United States District Court for the Western District of Virginia aptly reasoned,

The COVID-19 pandemic was a new and unusual issue, and there was

ongoing and changing guidance from health officials at both the state

and federal levels. [Prison officials] implemented protocols and

policies and procedures to deal with the pandemic, which was a difficult

situation for the whole of society and every business, but especially for

congregate settings like prisons. Even if some of these policies were

insufficient, and even if they were not always followed, neither the

policies or occasional lapses were clearly insufficient to protect

prisoners, given the novelty of the virus and the questions—and

evolving guidance—as to how to prevent its spread and treat it. . . .

“The world’s understanding of COVID-19 is constantly evolving, and

there is no precedent that would have made it clear to a reasonable

official that the measures Defendants took unreasonably responded to

the COVID-19 pandemic.”59

58 See Doc. 56 at 9-10.

59 Ross v. Russell, No. 7:20-cv-000774, 2022 WL 767093, at *14 (W.D. Va. Mar. 14, 2022)

(emphasis supplied) (quoting Ryan v. Nagy, No. 2:20-cv-11528, 2021 WL 6750962, at *9

(E.D. Mich. Oct. 25, 2021) (report and recommendation)).

As Ross v. Russell explains, there simply was no clearly established precedent in

2020 and early 2021 that would have put Harpster on notice that his lapse in

enforcing Wetzel’s “no cell searching” guidance would violate Fennell’s

constitutional rights. Because Harpster is entitled to qualified immunity, the Section

1983 claim against him must be dismissed.60

D. State-Law Negligence

Fennell also asserts state-law negligence claims against all Defendants.

However, because it is clear from the allegations of the amended complaint that

Defendants’ actions were performed within the scope of their employment, the

negligence claims must be dismissed.

Commonwealth parties acting within the scope of their employment

generally are immune from suit except when immunity is explicitly waived.61

Pennsylvania’s General Assembly has carved out certain limited exceptions from

its grant of sovereign immunity to Commonwealth actors.62 Section 8522(b) of

Title 42 of the Pennsylvania Consolidated Statutes provides ten narrow categories63

where the state has waived its sovereign immunity for claims involving negligent

60 The Court notes that, even if Fennell had plausibly alleged other Eighth Amendment violations

against Wetzel or Luther, those claims would likely be barred by qualified immunity as well.

61 See 1 PA. CONS. STAT. § 2310; 42 PA. CONS. STAT. §§ 8521, 8522(a).

62 See generally 42 PA. CONS. STAT. §§ 8521, 8522.

63 The ten exceptions set forth in 42 PA. CONST. STAT. § 8522(b) concern: (1) vehicle liability;

(2) medical-professional liability; (3) care, custody or control of personal property; (4)

Commonwealth real estate, highways and sidewalks; (5) potholes and other dangerous

conditions; (6) care, custody or control of animals; (7) liquor store sales; (8) National Guard

activities; (9) toxoids and vaccines; and (10) sexual abuse.

conduct by Commonwealth parties.64 This state statutory immunity applies to both

negligent and intentional torts committed by Commonwealth actors.65

None of the ten exceptions in Section 8522(b) apply to the instant claims.

Fennell has not identified or argued that any of the exceptions apply, either. It

appears that Fennell’s briefing focuses on Eleventh Amendment sovereign

immunity, which is not at issue here. Therefore, because state statutory immunity

shields Defendants from state tort claims, Fennell’s negligence claims against all

Defendants must be dismissed.

IV. LEAVE TO AMEND

Generally, “in forma pauperis plaintiffs who file complaints subject to

dismissal under Rule 12(b)(6) should receive leave to amend unless amendment

would be inequitable or futile.”66 Here, leave to amend will be denied because

amendment would be futile. First, Fennell fails to plead personal involvement for

Wetzel, and none of his allegations—even if amended—could fix that deficiency.

That is because his claims against Wetzel concern issues that have no causal

connection to Fennell’s alleged injury. Relatedly, Fennell’s allegations only

implicate causation as to a single Eighth Amendment claim against a single

Defendant—Harpster. And Harpster is shielded from liability on that claim by

64 See id. § 8522(a), (b).

65 See La Frankie v. Miklich, 618 A.2d 1145, 1149 (Pa. Commw. Ct. 1992).

66 Grayson v. Mayview State Hosp., 293 F.3d 103, 114 (3d Cir. 2002).

qualified immunity. Finally, Fennell’s state-law negligence claims are barred by

state statutory sovereign immunity.

V. CONCLUSION

Based on the foregoing, the Court will grant Defendants’ motion to dismiss

pursuant to Federal Rule of Civil Procedure 12(b)(6). Leave to file a second

amended complaint will be denied because amendment would be futile. An

appropriate Order follows.

BY THE COURT:

s/ Matthew W. Brann

Matthew W. Brann

Chief United States District Judge