Stanton v. Elliott

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

Elkins

JEFFERY L. STANTON,

as Administrator of the Estate

of Spencer Lee Crumbley,

Deceased,

Plaintiff,

v. CIVIL ACTION NO. 2:19-CV-49

Judge Bailey

CORY E. ELLIOTT,

Trooper First Class,

Individually as Member of the

West Virginia State Police, and

JAMES J. CORNELIUS,

Trooper First Class, Individually as

Member of the West Virginia State Police,

Defendants.

ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

Pending before this Court is Defendants’ Motion for Summary Judgment [Doc. 43] and

accompanying Memorandum in Support of Defendants’ Motion for Summary Judgment

44], filed on December 2, 2020. Plaintiff filed his Opposition to Defendants’ Motion for

Summary Judgment [Doc. 48] on December 23, 2020. Defendants filed their Reply to

Plaintiff's Response to Defendants’ Motion for Summary Judgment [Doc. 49] on January 6,

2021. Accordingly, this matter is ripe for consideration. Forthe reasons more fully articulated

herein, this Court will grant the Motion.

BACKGROUND

This action stems from a Complaint brought by plaintiff Jeffrey L. Stanton as the

administrator of the Estate of Spencer Lee Crumbley. [Doc. 1]. The action is based on the

fatal shooting of decedent Crumbley by two former members of the West Virginia State Police

who were dispatched to investigate a domestic disturbance occurring on decedent

Crumbley’s property. [ld.].

The aforementioned shooting occurred at 616 Simmons Cemetery Road in Valley

Head, West Virginia. See [Doc. 44]. Atthat property, two houses were situated: an A-frame

where decedent Crumbley lived, and a house where decedent Crumbiey's son (plaintiff),

decedent Crumbley's daughter (Ashley Vazquez), her two young children, and her boyfriend

resided. [Id.].

According to Vazquez, decedent Crumbley was “a real bad meth head” who would use

drugs “[e]very day if he had it.” See [Doc. 44-1]. Further, Vazquez noted that on the date in

question, decedent Crumbley was coming down from methamphetamine use, which, in turn,

caused him to exhibit violent behavior, [td.].

Vazquez, her boyfriend, Trooper Elliott, and Trooper Cornelius noted the following

sequence of events teading up to the shooting. See [Docs. 44-1, 44-6, 44-11, & 44-12].

Decedent Crumbley had been threatening Vazquez for several days leading up to the shooting

on December 17, 2017. When decedent Crumbley learned about frozen piping at the

property, he struck Vazquezin the head. See [Doc. 44-1]. Fearing fortheir safety, Vazquez

and her boyfriend decided to take the children and leave decedent Crumbley's property.

See [Id.; Doc. 44-6]. However, Vazquez was unable to do so because decedent Crumbley

had flattened her van’s tires and stayed at the property to prevent her from leaving. [Id.]. After

an unsuccessful attempt to report decedent Crumbley through a 9-1-1 call, Vazquez senta text

message to her mother asking for help. See [Doc. 44-1].

Subsequently, Vazquez’s mother and an anonymous friend telephoned law

enforcement, and the substance of the callers’ reports were relayed to defendants. See

[Docs. 44-2 & 44-9].' Moreover, defendants were already familiar with decedent Crumbley

because he had been the subject of a prior visit from a drug eradication task force related to

the distribution of methamphetamine. See [Doc. 44-10].

As defendants drove towards the subject property in response to the phone calls,

plaintiff had snuck off the property to head down the mountain in an attempt to avoid decedent

Crumbley and place another callto 9-1-1. See [Doc. 44-7]. Notably, the transcript of said call

contains the following pertinent conversation:

9-1-1: Randolph County 911.

Stanton: Yes this is Jeffrey Stanton[.] |meed some assistance up here at

Valley Head, at ah 616 Simmons Cemetery Road. My sister and

her kids are stuck up in the holl[ow] and my Dad will not letthem

out.

‘Documentation within the record indicates that this information revealed several key

pieces of information to defendants concerning decedent Crumbley's activity leading up to the

shooting, including that decedent Crumbley was "throwing guns around”; had “put his hands

on” Vazquez; was “on drugs” and “slap crazy’; and would not let Vazquez get to the phone.

9-1-1: What's your name?

Stanton: Jeffrey Stanton ... And make sure to—-make sure they are

prepared because he is armed and he is dangerous, and he

said if he sees a cop, he will shoot.

9-1-1: Okay, what exactly is going on, Sir?

Stanton: My sister and us was up here for Christmas and | have no clue,

he flipped out, he went and flattened our tires last night, and we

can't get out from up there. | had to walk clear down here in

Valley Head.

9-1-1: Okay, does he have like a history of, like altered mental status?

Stanton: Oh, yeah, he’s got a bad history.

9-1-1: Ok, like what, Sir? | need to know what exactly is going on, so |

can tel! them.

Stanton: Well he has my sister and her kids trapped up there. We was

trying to go to the store this morning and he went and flattened

the tires on her van so we can't leave.

9-1-1: Ok, so does your father have any weapons?

Stanton: Yes, he’s armed.

9-1-1: Do you know what type of firearms he has?

Stanton: [I'm] not for sure what he's got. But | know he’s got—l know he’s

got weapons.

9-1-1: Ok.

Stanton: And he done said if he sees a cop come up there, he will shoot.

9-1-1: Do you know why he’s holding them hostage there?

Stanton: He's—he’s just flipping out.

9-1-1: So, do you know if he has any, like mental history?

Stanton: No, huh uh, he just don't like the cops. He don't like

authorities—at all.

9-1-1: Ok, but do you know why he’s holding them hostage there?

Stanton: No... he’s done this numerous times.

9-1-1: What's his name?

Stanton: Spencer Crumbley... The man needs help. We're trying to get

him to go to a rehab or something, but he won't do it. He refuses

any help.

9-1-1: Is he, like, drinking, or is he on drugs, or what's the situation?

Stanton: He's not drinking. He’s not on drugs. | think that’s the problem:

He ain't got no drugs.

9-1-1: Do you think he’s, like, withdrawing?

Stanton: Yeh, probably so. But, | need some assistance...

9-1-1: You just stay right there, and we'll send someone up, ok?

Stanton: Alright. Make sure you send back up, now.

See [Doc. 44-7].

After arriving at the subject property, defendant Elliott retrieved a rifle from the trunk of

the police cruiser “to be prepared.” See [Doc. 44-3]. Defendant Elliott then approached

Vazquez to speak with her. See [Doc. 44-10). Notably, Vazquez informed defendant Elliott

that decedent Crumbley had a handgun inside his A-frame. [Id.]. Moments later, defendant

Elliott saw decedent Crumbley exit the A-frame, at which time he began yelling at defendants

and threatening to engage in a “shootout.” See [Id.; Doc. 44-6].

Defendants asked decedent Crumbley to stop, calm down, allow himself to be frisked,

and talk, but decedent Crumbley did net comply. See [Docs. 44-1 & 44-10]. On atleast two

occasions, Crumbley retumed to the A-frame and specifically assured defendants that he was

going to retrieve a gun, despite being issued repeated commands and warnings from

defendants. See [Id.]. Decedent Crumbley then began to move away from his A-frame toward

the other house where Vazquez and her children were hiding, prompting defendants to attempt

to intercept. See [Docs. 46-1 & 46-6]. During such time, decedent Crumbley picked up a

shovel, swung it and threw it at defendants, then again retreated to his A-frame. [Id.]. As

defendants attempted to tackle decedent Crumbley before entering the A-frame, defendant

Cornelius slipped in the snow and fell. See [Doc. 44-10]. Defendant Elliott then reached the

porch of the A-frame, drew his firearm, and observed decedent Crumbley turn around and

reach both hands into the couch on the porch. See [Doc. 44-3]. It was at this moment that

defendant Elliott shot decedent Crumbley once in the hand and once □□ the back. See [Id.].

Defendants then attempted to perform first aid on decedent Crumbley but, ultimately, he died

from his injuries. See [Docs. 44-1 & 44-3]. A search of decedent Crumbley and the couch

revealed no weapons. [Id.].

PROCEDURAL HISTORY

Based on the foregoing, Stanton (as the administrator of decedent Crumbley’s estate)

sued defendants in their individual capacities. See [Doc. 4]. More specifically, Stanton sued

defendant Elliott for shooting decedent Crumbley and defendant Cornelius for failing to

intervene. [Id.]. Count! is brought pursuant to U.S.C. § 1983 against both defendants for

excessive force and failure to intervene. Count|l is an analogous claim for violating the West

Virginia Constitution. CountlIl is a state common law claim for battery. Count IVis acommon

law claim for negligence. See [Id.].

STANDARD OF REVIEW

Federal Rule of Civil Procedure 56 provides that summary judgmentis appropriate “if

the pleadings, depositions, answers to interrogatories, and admissions on file, together □□□□

the affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” The party seeking summary

judgment bears the initial burden of showing the absence of any genuine issues of material

fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). Ifthe moving party meets

this burden, the nonmoving party “may not rest upon the mere allegations or denials of its

pleading, but must set forth specific facts showing there is a genuine issue for trial.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). Agenuine issue exists “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” fd.

“The inquiry performed is the threshold inquiry of determining whether there is the need fora

triali—whether, in other words, there are any genuine factual issues that properly can be

resolved only by a finder of fact because they may reasonably be resolved in favor of either

party.” fd. at 250.

In reviewing the supported underlying facts, all inferences must be viewed in the light

most favorable to the party opposing the motion. See Matsushita Elec. indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986). Additionally, the party opposing summary judgment

“must do more than simply show that there is some metaphysical doubt as to the material

facts.” fd. at586. Thatis, once the movant has met its burden to show absence of material

fact, the party opposing summary judgment must then come forward with affidavits or other

evidence demonstrating there is indeed a genuine issue for trial. Fed. R. Civ. P. 56(c);

Celotex Corp., 477 U.S. at 323-25; Anderson, 477 U.S. at 248. “If the evidence is merely

colorable, oris not significantly probative, summary judgment may be granted.” Anderson,

477 U.S. at 249 (citations omitted). Although all justifiable inferences are to be drawn in favor

of the non-movant, the non-moving party “cannot create a genuine issue of material fact

through mere speculation of the building of one inference upon another.” Beale v. Hardy, 769

F.2d 213, 214 (4th Cir. 1985). Further, “the plain language of Rule 56(c) mandates the entry

of summary judgment . . . against a party who fails to make a showing sufficient to establish

the existence of an element essential to that party's case, and on which that party will bear the

burden of proof at trial." Celotex Corp., 477 U.S. at 322.

DISCUSSION

This Court will discuss the applicable legal standard and law with respect to each

individual count. Given its particular import in this case, this Court begins with a recitation

concerning the doctrine of qualified immunity. Qualified immunity serves to protect:

government officials “from liability for civil damages insofar as their conduct

does not violate clearly established statutory or constitutional rights of whicha

reasonable person would have know.” ... The protection of qualified immunity

applies regardless of whether the government official's error is “a mistake of

law, a mistake of fact, ora mistake based on mixed questions of law and fact.”

Pearson v. Callahan, 555 U.S. 223, 231 (2009) (citations omitted) (citing Groh v. Ramirez,

540 U.S. 551, 567 (2004) (quoting Butz v. Economou, 438 U.S. 478, 507 (1978)); Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982).

The doctrine affords law enforcement officers “ample room for mistaken judgements’

by protecting ‘all but the plainly incompetent or those who knowingly violate the law.” Hunter

v. Bryant, 502 U.S. 224, 229 (1991) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)).

Qualified immunity insulates law enforcement officers from “bad guesses in gray areas,”

ensuring that they are only liable “for transgressing bright lines.” Maciariello v. Sumner, 973

F.2d 295, 298 (4th Cir. 1992). “This accommodation for reasonable error exists because

‘officials should not err always on the side of caution’ because they fear being sued.” Hunter,

502 U.S. at 229. “Where there is a legitimate question as to whether the officer's conduct

would objectively violate the plaintiff's right, qualified immunity ‘gives police officers the

necessary latitude to pursue their [duties] without having to anticipate, on the pain of civil

liability, future refinements or clarifications of constitutional law.” Slattery v. Rizzo, 939 F.2d

213, 216 (4th Cir. 1991). “A police officer should prevail on an assertion of qualified immunity

ifa reasonable officer possessing the same information could have believed that his conduct

was lawful.” fd. “This inquiry is a pure question of law and ‘hence always capable of decision

at the summary judgment state.” DiMeglio v. Haines, 45 F.3d 790, 794 (4th Cir. 1995)

(citations omitted).

I. DEFENDANT ELLIOTT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW

ON COUNT I.

Count] of plaintiff's Amended Complaint alleges a violation of 42 U.S.C. § 1983, which

provides that:

- Every person who, under color of any statute, ordinance, regulation, custom or

usage, of any State or Territory or the District of Columbia, 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 .. ..

See [Doc. 4]. Additionally, plaintiff alleges violations of the Fourth, Fifth, Eight, and Fourteenth

Amendments. [Id.]. In response to this count, defendants argue that they are protected by the

aforementioned doctrine of qualified immunity. See (Doc. 44]. identified by defendants,

plaintiff does not state with any particularity what sub-provisions of the foregoing amendments

were purportedly violated by defendants. Because the Eighth Amendment proscribes cruel

and unusual punishment, it is clear that decedent Crumbley’s Eight Amendment rights were

not violated here because he was not incarcerated at the time of the incident giving rise to this

matter. See Graham v. Connor, 490 U.S. 386, 392 n.6 (1989). To the extent plaintiff cites

the Fourteenth Amendment for anything other than a means of incorporating the Fourth

Amendment against state actions, Count I's Fourteenth Amendment basis lacks merit as a

matter of law as well. See Spry v. West Virginia, 2017 WL 440733, at *6 (S.D. W.Va. Feb

1, 2017).

Instead, it appears that Count | states a claim for excessive force under the Fourth

Amendment. The Fourth Amendment does not proscribe all force, only “unreasonable” force.

Elliott v. Leavitt, 99 F.3d 640, 642 (4th Cir. 1996) (“Claims that law enforcement officers

used excessive force when making an arrest ‘should be analyzed under the Fourth

Amendment and its “reasonableness” standard.) {citation omitted). “The standard of review

is an objective one,” and “the question is whether a reasonable officer in the same

circumstances would have concluded that a threat existed justifying the particular use of force.”

Id. (citation omitted). “A reviewing court may not employ ‘the 20/20 vision of hindsight’ and

must make ‘allowance for the fact that police officers are often forced to make split-second

judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Jd. (citations

omitted). “The court’s focus should be . . . on the fact that officers on the beat are not often

afforded the luxury of armchair reflection.” /d. (citations omitted). In analyzing Fourth

Amendment claims, “[w]hat matters is whether the officers acted reasonably upon there ports

available to them and whether they undertook an objectively reasonable investigation with

respect to that information in light of the exigent circumstances they faced.” Sigman v. Town

of Chapel Hill, 161 F.3d 782, 787 (4th Cir. 1998) (quotations and citations omitted).

“{I]n determining objective reasonableness, the court must consider what a ‘reasonable

officer on the scene’ would have done, taking into account such factors as ‘the severity of the

crime atissue, whether the suspect poses an immediate threat to the safety of the officers or

others, and whether heis actively resisting arrest or attempting to evade arrest by flight.” Id.

at 786-87 (citations omitted). Importantly, “[t]his evaluation is guided by the pragmatic

considerations of the moment and not by those that can be hypothesized from an armchair.”

fd. “In determining the constitutionality of the use of deadly force, a court must decide ‘whether

the totality of the circumstances justified’ the use of deadly force in the particular

circumstances of the case before it. But the use of deadly force is justified only in

circumstances where it ‘itis necessary to prevent the escape [of the suspect] and the officer

has probable cause to believe that the suspect poses a significant threat of death or serious

physical injury to the officer or others.” Milstead v. Kibfer, 243 F.3d 157, 162-63 (4th Cir.

2001) (citations omitted).

Based on the foregoing body oflaw, defendants argue that they acted reasonably given

the circumstances and are thus entitied to qualified immunity. See [Doc. 44]. In response to

this argument, plaintiff asserts several arguments which this Court will discuss in turn. First,

plaintiff suggests that the continued vitality of the doctrine of qualified immunity has been

questioned in various Courts, and requests this Court to abandon the requirement that liability

under § 1983 requires a showing that a clearly established legal standard was violated. See

[Doc. 48]. Citing Tennessee v. Garner, 471 U.S. 1, 11-12 (1985), plaintiff also arques that

defendants’ actions constituted a violation of a clearly established constitutional standard

governing the use of deadly force. See [Doc. 48]. Additionally, plaintiff contends that there

is a genuine issue of material fact as to whether defendant Elliot acted reasonably. [Id.].

Initially, this Court is not persuaded by plaintiff's argument that it should deviate from

clearly established precedent recognizing the viability of the doctrine of sovereign immunity.

Absent some novel, controlling precedent from the United States Court of Appeals for the

Fourth Circuit or the Supreme Court of the United States, this Court will not sway from the

doctrine’s applicability based on plaintiff's public policy argument.

This Courtis similarly not persuaded by plaintiff's argument that defendants’ actions

violated one of decedent Crumbley’s clearly established constitutional rights, nor does this

Court find that there is a genuine issue of material fact in that regard based ona review of the

totality of the record.

Much of plaintiff's argumentin this respect centers on the fact that a weapon was never

actually found on decedent Crumbley or in the couch. However, the lack of a weaponis □□□□□□

moment with respect to reasonableness in these circumstances. In Sigman v. Town of

Chapel Hill, 161 F.3d 782, 788 (4th Cir. 1998), the Fourth Circuit noted:

Notwithstanding the possibility of a dispute about whether a knife was actually

in Sigman’s hand at the moment of the shooting, Officer Riddle, and the other

officers present, acted on the perception that Sigman had a knife in his hand.

Where an officeris faced with a split-second decision in the context ofa volatile

atmosphere about how to restrain a suspect who is dangerous, who has been

recently—and potentially still is-armed and who is coming towards the officer

despite officers’ commands to halt, we conclude that the officer's decision to

fire is not unreasonable.

Id. This case is factually analagous to Sigman, and it is unmistakably clear from the record

that at the time of the shooting, defendants had been told that (1) decedent Crumbley had a

gun and was upset; (2) decedent Crumbley was experiencing a “come-down” from

methamphetamine; and (3) decedent Crumbley had prevented his family from leaving the

property. Additionally, decedent Crumbley had also attacked defendants with a shovel and

repeatedly threatened to shoot them.

Given the totality ofthese circumstances, any objectively reasonable officer could easily

have believed that decedent Crumbley presented an immediate threat justifying the use of

deadly force. As such, this Court finds that defendant Elliott could have reasonably believed

deadly force was required and is thus entitled to qualified immunity. As such, Count | of

plaintiffs Amended Complaint, insofar as it pertains to defendant Elliott, must be dismissed

as a matter of law.

Il. DEFENDANT CORNELIUS IS ENTITLED TO JUDGMENT AS A MATTER OF

LAW ON COUNT I.

Plaintiff argues that defendant Comelius failed to intervene to prevent defendant Elliott

from shooting decedent Crumbley. See [Doc. 4]. in order to prevail on sucha claim, plaintiff

must demonstrate that defendant Cornelius: (1) knew that defendant Elliott was violating

decedent Crumbley's constitutional rights, (2) had a reasonable opportunity to prevent the

harm, and (3) chose not to act. Randall v. Prince George’s Cty., Md., 302 F.3d 188, 204

(4th Cir. 2002).

Defendants assert a variety of arguments in support of their argument that Count I

should be dismissed insofar as it pertains to defendant Comelius. Namely, defendants assert

that defendant Cornelius could not have known that defendant Elliott was violating decedent

Crumbley's constitutional rights.? Plaintiff argues in opposition that a genuine issue of

material fact exists as to whether defendant Cornelius failed to act reasonably in failing to

prevent defendant Elliott from shooting decedent Crumbley. See [Doc. 48]. In support thereof,

plaintiff correctly notes that law enforcement officers have a duty to intervene when they see

that a fellow officeris using, or about to use, excessive force. See Randall, 302 F.3d □□ □□□□

However, as articulated above, this Court has found that defendant Elliott's actions were not

unreasonable or excessive given the circumstances and, as such, Count | of plaintiffs

Amended Complaint, insofar as it pertains to defendant Cornelius, must be dismissed as a

matter of law.

lll. DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW ON

COUNT II.

Count Il sets forth a West Virginia state-law analog to Count |. However, plaintiff

concedes in responsive briefing [Doc. 48] that subsequent to the filing of the Amended

Complaint, the Supreme Court of Appeals of West Virginia issued an opinion in which it

refused to recognize a private cause of action for monetary damages under Article Ill, Section

6 of the West Virginia Constitution. See Syl. Pt. 3, Fields v. Meflinger, 2020 WL 7223433

"Because this Court finds this argument dispositive, it dispenses with addressing

defendants’ remaining arguments concerning this count.

(W.Va. 2020). As such, Count II of plaintiff's Amended Complaint must be dismissed as a

matter of law with respect to both defendants.

IV. DEFENDANTS ARE ENTITLED TO JUDGMENT AS A MATTER OF LAW ON

COUNTS III AND IV.

In Count Ill, plaintiff alleges a state common law claim for battery. [Doc. 4]. Count IV

is common law claim for negligence. See [Id.]. Defendants assert that both these counts

fail to state a claim for which any relief could be granted. See [Doc. 44]. In support thereof,

defendants relyon W.Va. Code § 55-7-8a(a), which provides, in part, that “[i]n addition to the

causes of action which survive at common law, causes of action for . . . injuries to the person

and not resulting in death . . . also shall survive; and such actions may be brought

notwithstanding the death of the person entitled to recover or the death of the person liable.”

See W.Va. Code § 55-7-8a(a). Based on this statutory language, defendants claim that it is

well-settled that causes of action for injuries that do result in death do not survive. See

(Doc. 44]. With this standard in mind, defendants assert that the alleged battery and

negligence caused decedent Crumbley’s death and therefore, even if those claims had

underlying merit, would not survive. [Id.]; see also Spry v. West Virginia, 2017 WL 1483370,

at*9(S.D, W.Va. Apr. 24, 2017) (“The battery claim brought by [Adam Myers’s] estate cannot

proceed because West Virginia claims for battery do not survive death.”); Hoover v. Trent,

2008 WL 2992987, at *5 (N.D. W.Va. Aug. 1, 2008) (Keeley, J.) (“Hoover's state claims for

assault and battery [and] negligence .. . abate under state law. As already noted, under West

Virginia's survival statute only injuries not resulting in death survive. W.Va. Code § 55-7-8a.

Because Hoover's complaint states that her claims resulted in Tomasic’s death, they

abate .. .”).

Plaintiff argues against dismissal of Counts II] and IV by asserting that these claims

were actually brought pursuant to West Virginia's Wrongful Death Act and thus survive. See

[Doc. 49]. But this is not what plaintiff has pled with respect to these counts. Plaintiffs only

mention of the Wrongful Death Actin the Amended Complaint located at J 12, and states

that:

“[t]he beneficiaries of the Estate of Spencer Lee Crumbley, his son, Jeffery L.

Stanton, his daughter, Ashley Crumbley Vasquez, and such other as may be

within the purview of the West Virginia Wrongful Death Act, have suffered

losses and are entitled to recover all damages permitted by law within the

applicable insurance coverage as a result of the wrongful death of Mr. Crumbley

{Id.]. This language is insufficient to properly plead a cognizable cause of action under the

Wrongful Death Act because plaintiff has instead plead common law claims for battery and

negligence, which, as identified by defendants, do not survive as causes of action in instances

involving death. As such, Counts Ill and IV must be dismissed as a matter of law with respect

to both defendants.

CONCLUSION

For the reasons contained herein, Defendants’ Motion for Summary Judgment

[Doc. 43] is GRANTED, and this matter is DISMISSED WITH PREJUDICE. The Clerk is

directed to enter judgment in favor defendants and STRIKE this matter from the active docket

of the Court.

It is so ORDERED.

The Clerk is directed to transmit copies of this Order to all counsel of record herein.

DATED: January at 2021,

UNITED STATES DISTRICT JUDGE