Butcher v. The City of Clarksburg

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

ROSA LEE BUTCHER,

Plaintiff,

v. CIVIL ACTION NO. 1:19CV181

(Judge Keeley)

THE CITY OF CLARKSBURG,

MARTIN HOWE,

ROBERT HILLIARD, and

JOHN DOE,

Defendants.

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

In this civil rights case, the plaintiff, Rosa Lee Butcher

(“Butcher”), alleges that the defendants, the City of Clarksburg

(“Clarksburg”), Martin Howe (“Howe”), Robert Hilliard (“Hilliard”),

and John Doe (collectively, “the Defendants”), violated her state

and federal constitutional rights by conspiring to conceal the

identity of John Doe, the Clarksburg Police Officer who allegedly

tased her while she was in police custody (Dkt. No. 1-1).

Clarksburg, Howe, and Hilliard (collectively, “the represented

Defendants”) have moved to dismiss the Complaint contending, among

other things, that Butcher’s claims are time barred and,

alternatively, fail to state a claim under Federal Rule of Civil

Procedure 12(b)(6) (Dkt. No. 5). Because Butcher’s Complaint fails

to state a claim, and any such claim is nevertheless time barred,

BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

the Court GRANTS the motion to dismiss (Dkt. No. 5) and DISMISSES

the Complaint WITH PREJUDICE.

I. BACKGROUND

A. The Complaint1

In her Complaint, Butcher alleges two causes of action——the

first under the West Virginia Constitution and the second under 42

U.S.C. § 1983——based on the same facts and circumstances (Dkt. No.

1-1 at 5-14). Specifically, Butcher alleges that, while she was in

the custody of the Clarksburg Police Department in September 2013,

officers used excessive force by tasing her while she was in

handcuffs. Id. at 7. As a result, she filed a formal complaint with

the City of Clarksburg in September 2014, which led to an internal

investigation. Id.

The internal investigation found that Butcher’s complaint

lacked merit because all officers on duty denied deploying their

tasers. Id. The results of the internal investigation were

forwarded to Howe and Hilliard, who did not refer the matter to an

outside agency for further investigation. Id. During this time,

1 The facts are taken from the Complaint and, as they must be, are

construed in the light most favorable to Butcher. See De’Lonta v. Johnson, 708

F.3d 520, 524 (4th Cir. 2013).

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

Hilliard served as the Chief of the Clarksburg Police Department

and Howe served as the City Manager of Clarksburg. Id. at 8.

In September 2015, Butcher filed a complaint in the Circuit

Court of Harrison County, naming Clarksburg, Officer Vinson, and

John Doe as defendants. Id. at 7. Although the Court dismissed

Clarksburg from the case, a jury found that John Doe used excessive

force and awarded Butcher $5,000.00 in damages. Id. at 7-8. After

denying the state court defendants’ motion for judgment as a matter

of law, the Circuit Court of Harrison County entered a final

judgment in favor of Butcher and awarded her $74,620.00 in

attorney’s fees and costs. Id. The state court defendants then

appealed to the Supreme Court of Appeals of West Virginia, where

the case remains. Id.

Based on these facts, Butcher alleges that Clarksburg, Howe,

Hilliard, and John Doe have “conspired to conceal the identity of

[her] attacker both pre and post verdict in an attempt to avoid the

City of Clarksburg or their insurer being found liable for the

attack on [her] and the judgment rendered by the [Circuit] Court.”

Id. at 8-9. In support, Butcher alleges that the “Defendants

conducted an adequate [sic] investigation prior to the jury trial

. . . and refused to reopen the investigation post verdict in a

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

continued attempt to keep the identity of John Doe unknown to

[Butcher] arguing to the [Supreme Court of Appeals] that the City

of Clarksburg’s insurer should not be responsible for paying the

judgment since [she] cannot name her attacker.” Id. at 9.

Butcher further alleges that Clarksburg, Howe, and Hilliard

“failed to call in any outside investigations [sic] to investigate

[her claims] both pre and post verdict,” despite calling for

outside investigations in other cases “from September[] 2013 to

August[] 2019.” Id. They also “failed to call in the WV State

Police to investigate” her claims, despite utilizing the State

Police to investigate other claims “from September[] 2013 to

August[] 2019.” Id.

As a result, Butcher alleges that the Defendants have violated

her state and federal constitutional rights to due process by

conspiring to conceal the identify of Joe Doe, causing her mental

pain and suffering (past and future), humiliation, embarrassment,

and degradation, and potential loss of her state court monetary

judgment. Id. at 10-13. Butcher also seeks attorney’s fees, costs,

punitive damages, and additional training for the Defendants. Id.

at 12-13.

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

B. Procedural History

Butcher filed this action in August 2019 in the Circuit Court

of Harrison County, West Virginia (Dkt. No. 1-1). The Defendants

timely removed it to this Court based on federal question and

supplemental jurisdiction (Dkt. No. 1). After the represented

Defendants moved to dismiss the Complaint (Dkt. No. 5), the Court

held a scheduling conference during which it heard oral argument on

the pending motion (Dkt. No. 14), which is now ripe for

disposition.

II. STANDARD OF REVIEW

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to

move for dismissal on the grounds that a complaint does not “state

a claim upon which relief can be granted.” When reviewing the

sufficiency of a complaint, a district court “must accept as true

all of the factual allegations contained in the complaint.”

Anderson v. Sara Lee Corp., 508 F.3d 181, 188 (4th Cir. 2007)

(quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). “While a

complaint . . . does not need detailed factual allegations, a

plaintiff's obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

555 (2007) (internal citation omitted). A court is “not bound to

accept as true a legal conclusion couched as a factual allegation.”

Papasan v. Allain, 478 U.S. 265, 286 (1986).

In order to be sufficient, “a complaint must contain ‘enough

facts to state a claim to relief that is plausible on its face.’”

Anderson, 508 F.3d at 188 n.7 (quoting Twombly, 550 U.S. at 547).

“A claim has facial plausibility when the plaintiff pleads factual

content that allows the court to draw the reasonable inference that

the defendant is liable for the misconduct alleged.” Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009). A motion to dismiss “does not

resolve contests surrounding the facts, the merits of a claim, or

the applicability of defenses.” Republican Party of N.C. v. Martin,

980 F.2d 943, 952 (4th Cir. 1992).

III. DISCUSSION

The represented Defendants contend that Butcher’s Complaint

should be dismissed because (1) her claims are barred by the

doctrine of res judicata; (2) her claims are time barred by the

applicable statute of limitations; (3) her Complaint fails to state

a claim upon which relief can be granted; (4) Howe and Hilliard are

entitled to qualified immunity; and (5) John Doe is an improper

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

party (Dkt. Nos. 5, 6). Because Butcher’s Complaint fails to state

a claim, and because any such claim is time barred by the

applicable statute of limitations, the Court need not consider the

remaining contentions.

A. Butcher fails to state a claim upon which relief can be

granted.

Butcher’s Complaint fails to state a claim upon which relief

can be granted for three reasons.

I. Butcher fails to state a claim against Howe and Hilliard.

Butcher’s Complaint alleges that Howe “was at all times . . .

the City Manager for the City of Clarksburg” and was “acting . . .

within the scope of his employment” (Dkt. No. 1-1 at 6). She

similarly alleges that Hilliard “was at all times . . . acting . .

. within the scope of his employment as the acting Chief of the

Clarksburg Police Department, an agency of Defendant City of

Clarksburg.” Id. During the scheduling conference, Butcher

confirmed that she named Howe and Hilliard in their official

capacities because they are, in effect, the City of Clarksburg.

As the Supreme Court of the United States has long recognized,

“official-capacity suits ‘“generally represent only another way of

pleading an action against an entity of which an officer is an

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

agent.”’” Hafer v. Melo, 502 U.S. 21, 25 (1991) (quoting Kentucky

v. Graham, 473 U.S. 159, 165 (1985) (quoting Monell v. N.Y.C. Dept.

of Soc. Servs., 436 U.S. 658, 690 n. 55 (1978))). “As long as the

government entity receives notice and an opportunity to respond, an

official-capacity suit is, in all respects other than name, to be

treated as a suit against the entity.” Graham, 473 U.S. at 166

(citation omitted). “Thus, duplicative claims against an individual

in his official capacity when the government entity is also sued

may be dismissed.” Armstrong v. City of Greensboro, 190 F. Supp. 3d

450, 463 (M.D.N.C. 2016) (citations omitted); see also Love-Lane v.

Martin, 355 F.3d 766, 783 (4th Cir. 2004) (affirming the dismissal

of a claim against a superintendent in his official capacity

because it was essentially a claim against the board of education

and was, therefore, duplicative).

Here, Butcher has admittedly named Howe and Hilliard as

defendants in their official capacities as the City Manager of

Clarksburg and Chief of the Clarksburg Police Department,

respectively. Because these claims are duplicative of her claims

against Clarksburg, they must be dismissed. See Love-Lane, 355 F.3d

at 783; Armstrong, 190 F. Supp. 3d at 463.

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

ii. Butcher fails to state a claim against the City of

Clarksburg.

Butcher alleges that Clarksburg conspired to deprive her of

her constitutional rights to due process in violation of the United

States Constitution and the West Virginia Constitution (Dkt. No. 1-

1 at 5-14). Her Complaint alleges only two “acts” to support her

civil conspiracy claims. These include (1) Clarksburg’s refusal to

reopen an investigation into the identity of John Doe, and (2) its

attempt to avoid liability by appealing the unfavorable state court

judgment to the Supreme Court of Appeals. Id. at 8-9.

Under Monell, 436 U.S. at 690, municipalities “can be sued

directly under § 1983 for monetary, declaratory, or injunctive

relief where . . . the action that is alleged to be

unconstitutional implements or executes a policy statement,

ordinance, regulation, or decision officially adopted and

promulgated by that body’s officers.” See also Santos v. Frederick

Cty. Bd. Of Com’rs, 725 F.3d 451, 470 (4th Cir. 2013) (“[A]

municipality is subject to Section 1983 liability only when its

policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy,

inflicts the plaintiff’s injury . . . .” (cleaned up) (emphasis

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

added)). “The requirement that the allegedly unconstitutional act

stems from an established municipal policy or the actions of a

final policymaker ensures that the municipality is ‘responsible’

for the alleged violations of a plaintiff’s constitutional rights.”

Santos, 725 F.3d at 470 (citing Pembaur v. City of Cincinnati, 475

U.S. 469, 480 (1986)).

Here, Butcher has failed to allege that the allegedly

unconstitutional actions of Howe and Hilliard implemented or

executed a policy statement, ordinance, regulation, or decision

officially adopted and promulgated by the City of Clarksburg (Dkt.

No. 1-1 at 5-14). Indeed, in her response opposing the motion to

dismiss, she concedes that she “could not identify a legal duty or

written policy that mandated [that] [Clarksburg] conduct any

further investigation” (Dkt. No. 12 at 2). Nor could she “cite any

written policy or legal duty to call in outside investigators even

though there was evidence . . . Clarksburg had done so before in

response to other alleged incidents of police misconduct.” Id. at

3. Because Butcher’s Complaint has alleged no established municipal

policy as the root of Clarksburg’s allegedly unconstitutional

actions, she fails to state a claim upon which relief can be

granted under Monell.

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

iii. Butcher fails to state a plausible claim for relief.

These pleading deficiencies aside, Butcher’s Complaint fails

to state a plausible claim for relief. “A claim has facial

plausibility when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

Here, Butcher alleges that the Defendants have conspired to

violate her constitutional rights to due process by refusing to

reopen an investigation to identify her attacker, John Doe, and by

appealing an unfavorable judgment to the Supreme Court of Appeals.

(Dkt. No. 1-1 at 5-14). Neither claim is plausible because the

Defendants had a legal right to appeal the unfavorable state court

judgment, W. Va. Code. § 58-5-1, and Butcher does not have a right,

constitutional or otherwise, to have the Defendants reopen an

investigation, see Jenkins v. Medford, 119 F.3d 1156, 1159-60 (4th

Cir. 1997) (“Under 42 U.S.C. § 1983, a plaintiff must establish

three elements to state a cause of action: (1) the deprivation of

a right secured by the Constitution or a federal statute; (2) by a

person; (3) acting under color of state law.” (emphasis added));

cf. Smith v. McCarthy, 349 Fed. App’x 851, 859 (4th Cir. 2009)

(stating that the plaintiff “had no right to a criminal

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

investigation or criminal prosecution of another” and, therefore,

“failed to allege the violation of a clearly established statutory

or constitutional right”).

Because the only alleged acts supporting her civil conspiracy

claims are lawful, or do not otherwise deprive her of a clearly

established statutory or constitutional right, Butcher’s Complaint

fails to state a plausible claim for relief. See Dixon v. Am.

Indus. Leasing Co., 253 S.E.2d 150, 152 (W. Va. 1979)

(“[A]ctionable civil conspiracy contemplates a concerted action by

two or more persons to accomplish an unlawful purpose or to

accomplish a lawful purpose by some unlawful means. Where is the

unlawful purpose or the unlawful means in this case? We see

none.”).

B. Butcher’s claims are time barred by the applicable statute of

limitations.

Even if Butcher stated a plausible claim for relief, any such

claim is barred by the applicable statute of limitations.2

2 Although a defense based on a statute of limitations is

generally an affirmative defense, Fed. R. Civ. P. 8(c)(1), it may

be raised in a motion to dismiss under Rule 12(b)(6) “if it clearly

appears from the face of the complaint.” Richmond, Fredericksburg

& Potomac R.R. v. Forst, 4 F.3d 244, 250 (4th Cir. 1993) (citations

omitted).

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

Under West Virginia law, “the statute of limitation for a

civil conspiracy claim is determined by the nature of the

underlying conduct on which the claim of conspiracy is based . . .

.” Dunn v. Rockwell, 689 S.E.2d 255, 269 (W. Va. 2009) (citations

omitted). Because Butcher’s civil conspiracy claims allege personal

injury, the two-year statute of limitation set forth in W. Va. Code

§ 55-2-12 applies. W. Va. Code § 55-2-12 (“Every personal action

for which no limitation is otherwise prescribed shall be brought:

. . . (b) within two years next after the right to bring the same

shall have accrued if it be for damages for personal injuries.”);

see also Dunn, 689 S.E.2d at 269 (concluding that the two-year

statute of limitation in § 55-2-12 applied to civil conspiracy

claim). Butcher’s § 1983 claim is likewise governed by the two-year

statute of limitation set forth in W. Va. Code § 55-2-12.

McCausland v. Mason County Bd. of Educ., 649 F.2d 278 (4th Cir.

1981) (concluding that West Virginia’s limitation on personal

injury actions applies to the plaintiff’s § 1983 claim).

Although state law governs the applicable statute of

limitations, “federal law controls” when “[t]he applicable statute

of limitations begins to run once a claim accrues . . . .” A

Society Without a Name v. Virginia, 655 F.3d 342, 348 (4th Cir.

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MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

2011) (citing Cox v. Stanton, 529 F.2d 47, 50 (4th Cir. 1975)). “A

civil rights claim accrues when the plaintiff ‘knows or has reason

to know of the injury which is the basis of the action.’” Id.

(quoting same).

“‘[T]o establish a continuing violation[,] the plaintiff must

establish that the unconstitutional or illegal act was a fixed and

continuing practice.’” Id. (first alteration added) (quoting Nat’l

Adver. Co. v. City of Raleigh, 947 F.2d 1158, 1166 (4th Cir.

1991)). “In other words, if the plaintiff can show that the illegal

act did not occur just once, but rather ‘in a series of separate

acts[,] and if the same alleged violation was committed at the time

of each act, then the limitations period begins anew with each

violation.’” Id. (alteration in original) (quoting City of Raleigh,

947 F.2d at 1167). “But continual unlawful acts are distinguishable

from the continuing ill effects of an original violation because

the latter do not constitute a continuing violation.” Id. (citing

City of Raleigh, 947 F.2d at 1166).

As set forth above, Butcher’s Complaint alleges only two acts

to support her civil conspiracy claims: (1) the Defendants’ refusal

to reopen an investigation into the identity of John Doe; and

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

(2) their attempt to avoid liability by appealing the unfavorable

state court judgment to the Supreme Court of Appeals.

Assuming these claims are actionable——which they are not——both

claims are time barred because they were not ongoing and

demonstrate the continuing ill effects of the original violation,

that is, the Defendants’ decisions not to assist Butcher in

identifying John Doe and not to refer Butcher’s complaint for an

external investigation.

Critically, Butcher has known about both decisions since at

least 2015. Indeed, since 2015, she had known that the state court

defendants had refused to refer her complaint for an external

investigation and would assert their “John Doe defense.” Nor does

the decision not to reopen the investigation post verdict

constitute a continuing violation because the Defendants merely

refused to reopen an investigation they had completed in 2015.

Jersey Heights Neighborhood Ass’n v. Glendening, 174 F.3d 180, 189

(4th Cir. 1999) (explaining that “every refusal” to take a

particular action “does not revive the limitations period for the

original [] decision.”). And the decision to appeal the unfavorable

state court judgment does not constitute a continuing violation

because Butcher was long aware that the state court defendants

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

would attempt to avoid liability by asserting their “John Doe

defense” at trial.

Butcher’s reliance on McCausland, 649 F.2d 278 and Ocean Acres

Ltd. v. Dare Cty. Bd. of Health, 707 F.2d 103, 106 (4th Cir. 1983)

is misplaced (Dkt. No. 12 at 5). McCausland stands primarily for

the proposition that § 1983 claims are subject to West Virginia’s

two-year statute of limitations for personal injury actions. 649

F.2d at 279. After recognizing this application of law, the Fourth

Circuit concluded that the plaintiff’s claims in McCausland were

time barred because the defendants actions were not continuous. Id.

In Ocean Acres, the Fourth Circuit similarly concluded that

the “continuing wrong” theory did not apply because the plaintiff

“was aware of the actions taken by the county and of the impact of

those actions on its proposed development.” 707 F.2d at 107. As the

court explained, “a ‘continuing wrong’ theory should not provide a

means of relieving plaintiff from its duty of reasonable diligence

in pursuing its claims.” Id. Therefore, “the due process claims

accrued when plaintiff knew of or had reason to know of the alleged

injury which is the basis of its action.” Id.

This case is on all fours with the holding in Ocean Acres.

Butcher has long known, or should have known, that the represented

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BUTCHER V. CITY OF CLARKSBURG, ET AL. 1:19V181

MEMORANDUM OPINION AND ORDER

GRANTING DEFENDANTS’ MOTION TO DISMISS [DKT. NO. 5]

AND DISMISSING THE COMPLAINT WITH PREJUDICE [DKT. NO. 1-1]

Defendants would not help her identify John Doe after the

conclusion of their internal investigation in 2014 or 2015.

Moreover, she has long known, or should have known, that they would

assert their “John Doe defense.” The Defendants’ decisions to not

reopen the investigation and to appeal the unfavorable state court

judgment are not continuing violations merely because they evince

the continuing effects of the original violations. As Butcher did

not file the instant Complaint within two years of these claims

accruing, they are time barred by the applicable statute of

limitations. W. Va. Code § 55-2-12.

IV. CONCLUSION

For the reasons discussed, the Court GRANTS the Defendants’

motion to dismiss (Dkt. No. 5), DISMISSES the Complaint (Dkt. No.

1-1) WITH PREJUDICE, and ORDERS that this civil action be

terminated from the active docket.

It is so ORDERED.

The Court DIRECTS the Clerk to enter a separate judgment order

in favor of the Defendants and to transmit copies of both Orders to

counsel of record.

DATED: November 13, 2019.

/s/ Irene M. Keeley

IRENE M. KEELEY

UNITED STATES DISTRICT JUDGE