Zeng v. Marshall University

IN THE UNITED STATES DISTRICT COURT FOR

THE SOUTHERN DISTRICT OF WEST VIRGINIA

HUNTINGTON DIVISION

WEI-PING ZENG,

Plaintiff,

v. CIVIL ACTION NO. 3:17-3008

MARSHALL UNIVERSITY,

DR. JEROME A. GILBERT;

DR. JOSEPH SHAPIRO;

DR. W. ELAINE HARDMAN;

DR. DONALD A. PRIMERANO;

and DR. RICHARD EGLETON,

Defendants.

MEMORANDUM OPINION ORDER

Pending before this Court are Defendants’ four motions to dismiss Plaintiff’s second

amended complaint: (1) Defendant Marshall University’s (“MU”) Motion to Dismiss Second

Amended Complaint (ECF No. 66); (2) Defendant Dr. Jerome A. Gilbert’s Motion to Dismiss

Second Amended Complaint (ECF No. 73); (3) Defendants Dr. W. Elaine Hardman’s and Dr.

Richard Egleton’s Motion to Dismiss Second Amended Complaint (ECF No. 75); and (4)

Defendants Dr. Joseph Shapiro’s and Dr. Donald Primerano’s Motion to Dismiss Second

Amended Complaint (ECF No. 77).

Also pending before this Court are various motions related to briefing the issues addressed

in the above motions to dismiss: (1) Plaintiff’s Motion for Leave to File Surreply to Defendant

MU’s Motion to Dismiss (ECF No. 80); (2) Defendant MU’s Motion to Strike (ECF No. 82); (3)

Plaintiff’s Motion for Leave to File a Surreply to Defendants’ Motions to Dismiss the Second

Amended Complaint (ECF No. 92); (4) Plaintiff’s Modified Motion for Leave to File a Surreply

to Defendants’ Motions to Dismiss the Second Amended Complaint (ECF No. 94); and (5)

Plaintiff’s Modified Motion for Leave to File a Surreply to Defendants’ Motions to Dismiss the

Second Amended Complaint (ECF No. 95).

Pursuant to an Order issued on May 23, 2017, this action was referred to United States

Magistrate Judge Cheryl A. Eifert for proposed findings of fact and recommendation for

disposition. ECF No. 3. On February 5, 2019, the Magistrate Judge submitted proposed findings

and recommended that this Court grant, in part, and deny, in part, the pending motions from

Plaintiff and Defendants. Proposed Findings and Recommendation, ECF No. 188, at 47–48.

Plaintiff now objects to the findings and recommendation. Objections, ECF No 204. For the

reasons below, the Court adopts, in part, the proposed findings and recommendations of Magistrate

Judge Eifert, and requests new proposed findings and recommendations on narrow issues

explained below.

I. BACKGROUND

The entire factual background of this case is discussed in detail in previous orders,1 and

the few specific facts that are relevant to this order will be outlined as necessary in the sections

below.

II. STANDARD OF REVIEW

A. Magistrate Judge’s Findings

This Court must “make a de novo determination of those portions of the ... [Magistrate

Judge’s] proposed findings or recommendations to which objection is made.” 28 U.S.C. §

636(b)(1)(C); see e.g., Berry v. Colvin, No. 14-9859, 2015 WL 1506128, at *1 (S.D. W. Va. Mar.

31, 2015).

1 See Order, ECF No. 49, at 2–8.

B. Motion to Dismiss

Defendant MU files its motion to dismiss under Rule 12(b)(1) and Rule 12(b)(6) of the

Federal Rules of Civil Procedure, while the other Defendants rely upon Rule 12(b)(6). See ECF

Nos. 66, 73, 75, 77.

1. 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction can follow two

tracks. Under the first track, a party asserts a “factual attack,” claiming that the jurisdictional

allegations made in the complaint are inaccurate. See Kerns v. United States, 585 F.3d 187, 192

(4th Cir. 2009). Under the second track, a party asserts a “facial attack,” claiming that the

jurisdictional facts contained within the complaint, taken as true, fail to support a court’s subject

matter jurisdiction over the action. See id.; Thigpen v. United States, 800 F.2d 393, 401 n.15 (4th

Cir. 1986). When considering a “facial attack,” a court affords the plaintiff “the same procedural

protection as he would receive under a Rule 12(b)(6) consideration.” Kerns, 585 F.3d at 192

(internal quotation marks and citation omitted). Defendant MU has asserted a facial attack, and

therefore the Court will proceed under the Rule 12(b)(6) procedural framework.

2. 12(b)(6) Motion to Dismiss for Failure to State a Claim

Federal Rule 8(a) requires a complaint to include “a short and plain statement of the claim

. . . showing entitle[ment] to relief.” Fed. R. Civ. P. 8(a)(2). To overcome a motion to dismiss

under Federal Rule 12(b)(6), a complaint must also be plausible. Bell Atl. Corp. v. Twombly, 550

U.S. 544, 546 (2007). This standard requires a plaintiff to set forth the “grounds” for an

“entitle[ment] to relief” that is more than mere “labels and conclusions, and a formulaic recitation

of the elements of a cause of action will not do.” Id. at 555 (internal quotations and citations

omitted). A complaint must contain “sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations

and citation omitted). Facial plausibility exists when a claim contains “factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”

Id. (citation omitted).

Accepting the factual allegations in the complaint as true—even when doubtful—the

allegations “must be enough to raise a right to relief above the speculative level . . . .” Twombly,

550 U.S. at 555 (citations omitted). If the allegations in the complaint, assuming their truth, do

“not raise a claim of entitlement to relief, this basic deficiency should . . . be exposed at the point

of minimum expenditure of time and money by the parties and the court.” Id. at 558 (internal

quotations and citations omitted). “Although for the purposes of a motion to dismiss we must take

all of the factual allegations in the complaint as true, we are not bound to accept as true a legal

conclusion couched as a factual allegation.” Iqbal, 556 U.S. at 678 (internal quotations and citation

omitted). Finally, a court must also “draw[ ] all reasonable factual inferences from those facts

[alleged] in the plaintiff’s favor . . . .” Martin v. Duffy, 858 F.3d 239, 248 (4th Cir. 2017) (internal

quotations omitted) (quoting Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (internal citations

omitted)).

III. DISCUSSION

Plaintiff makes the following objections to the Magistrate Judge’s proposed findings of

fact and recommendation: (1) Counts 5 and 10 of Plaintiff’s second amended complaint should

not be dismissed; (2) Count 7 of Plaintiff’s second amended complaint should not be dismissed;

(3) Plaintiff has not failed to state a plausible claim of a due process violation based upon a liberty

interest; (4) Count 11 of Plaintiff’s second amended complaint against MU should not be

dismissed; (5) Defendants’ motions to dismiss claims previously granted by this Court, particularly

the claims in Count 5, 6, and 7, should be denied on the basis of estoppel; and (6) the Magistrate

Judge is incorrect in finding that, in regard to claims for prospective relief, Plaintiff has not

included allegations in the second amended complaint identifying any particular defendant as an

official responsible for enforcing an unconstitutional policy. See Objections, at 2–19. The Court

will address each objection in turn.

A. Motions to Dismiss Counts 5 and 10

In Count 5 of his second amended complaint, Plaintiff asserts that Defendants Shapiro and

Primerano violated 42 U.S.C. § 1985 and the West Virginia Human Rights Act by conspiring to

breach a contract with Plaintiff and retaliate against him for opposing unlawful discrimination.

Compl., ECF No. 55, at 39–40. Relatedly, in Count 10, Plaintiff asserts that Defendant Gilbert

violated 42 U.S.C. § 1986 by neglecting to prevent Defendants Primerano’s and Shapiro’s alleged

conspiracy. Id. at 45. The Magistrate Judge recommended that this Court grant Defendants

Shapiro’s and Primerano’s motion to dismiss Plaintiff’s conspiracy claim in Count 5 because the

claim is “precluded by the intracorporate conspiracy doctrine ….” See Proposed Findings and

Recommendation, at 44. Additionally, the Magistrate Judge recommended that this Court grant

Defendant Gilbert’s motion to dismiss Plaintiff’s neglect claim in Count 10, as the failure to allege

a conspiracy claim in Count 5 is fatal to the claim of neglecting to prevent a conspiracy in Count

10. See id. at 25–31. Plaintiff now objects to these findings by the Magistrate Judge. Objections,

at 2–9. The Court agrees with Plaintiff and finds that his conspiracy claim in Count 5 is not

precluded by the intracorporate conspiracy doctrine.

The intracorporate conspiracy doctrine holds that “acts of corporate agents are acts of

the corporation itself, and corporate employees cannot conspire with each other or with

the corporation.” ePlus Tech., Inc. v. Aboud, 313 F.3d 166, 179 (4th Cir. 2002). The doctrine

applies to public entities, as well as private corporations and public government entities. Dickerson

v. Alachua County Comm’n, 200 F.3d 761, 767 (11th Cir. 2000). However, the intracorporate

conspiracy doctrine has two exceptions. The exception relevant to this case states that “a plaintiff

may [nonetheless] state a conspiracy claim [against a corporate agent] where the agent’s acts were

not authorized by the corporation.” Painter's Mill Grille, LLC v. Brown, 716 F.3d 342, 353 (4th

Cir. 2013). Agents’ acts are “not authorized by the corporation” when it can be inferred that the

agents violated specific policies that the corporation follows. See Hodgin v. Jefferson, 447 F. Supp.

804, 807 (D. Md. 1978) (holding that the defendant’s actions are unauthorized by the employer

when, “reading the complaint liberally, it appears [the] plaintiff has charged that [the defendant]

ignored the stated policies” of the employer).

In this case, Plaintiff alleges that “Defendants Marshall University, Primerano and Shapiro

prematurely terminated the plaintiff’s employment and without offering a 1-year terminal

contract,” in violation of the West Virginia Higher Education Policy Commission Rules, which

the corporation follows. See Compl., at 10, 45. As a result of this allegation, Plaintiff has

sufficiently alleged that Defendants Primerano’s and Shapiro’s acts were “not authorized” by his

employer, as their alleged acts violated that West Virginia Higher Education Policy Commission

Rules, which Defendant MU follows. Therefore, it is improper to grant Defendants Shapiro’s and

Primerano’s motion to dismiss Plaintiff’s conspiracy claim in Count 5, or Defendant Gilbert’s

motion to dismiss Plaintiff’s neglect claim in Count 10, based solely upon the intracorporate

conspiracy doctrine.

B. Motion to Dismiss Count 7

In Count 6 of his second amended complaint, Plaintiff asserts that Defendants MU,

Primerano, and Shapiro violated various federal and/or state statutes by retaliating against him—

via his termination—because he filed a grievance and charges of Title VII violations with the West

Virginia Public Employees Grievance Board and Equal Employment Opportunity Commission.

Compl., at 40–41. Additionally, in Count 7, Plaintiff asserts that Defendants MU, Primerano, and

Shapiro violated various federal and state statutes by breaching the employment contract between

Plaintiff and the School of Medicine when they prematurely terminated Plaintiff’s employment.

Id. at 41–42. The Magistrate Judge recommended that this Court grant Defendants Shapiro’s and

Primerano’s motion to dismiss Plaintiff’s breach of contract claim set forth in Count 7, finding that

it was an unnecessary duplication of the retaliation claim set against them in Count 6. Proposed

Findings and Recommendation, at 45. Plaintiff now objects to this conclusion. Objections, at 9.

The Court denies Plaintiff’s objection.

Plaintiff first objects to the Magistrate Judge’s finding that Plaintiff’s “employment was

cut eight months short,” arguing that his employment was actually “cut 12 or 19 months short.”

Objections, at 9. This finding of fact is irrelevant, as it has no bearing on the legal issues presented

before this Court. Therefore, the Court finds this objection moot.

Plaintiff next objects to the Magistrate Judge’s conclusion that Counts 6 and 7 are

duplicative. Objections, at 12. In support, Plaintiff asserts that “the legal grounds and factual

evidence are different,” and “the breach of contract claim is simply based on the fact that the

defendants [Primerano and Shapiro] prematurely terminated the plaintiff’s employment

regardless of whether or not the plaintiff opposed the tenure denial.” Id. at 12 (emphasis added).

While this a proper explanation of the difference between the two counts, the issue with this

argument is that, as the Magistrate Judge identified, Defendants Primerano and Shaprio “could not

have breached the contract … because the contract was between MU and Plaintiff.” Proposed

Findings and Recommendation, at 45. In response, Plaintiff argues that “the contractual

relationship is irrelevant” because “the defendants were sued for violating the plaintiff’s civil

human right,” and “not for the plaintiff’s contractual right under any contract law.” Objections, at

13. From these arguments, it appears Plaintiff is assuming that because he is not suing under

common law breach of contract, but rather a federal statute, a contractual relationship need not be

established. This is, of course, erroneous. For example, to establish that a defendant violated 42

U.S.C. § 1981 by terminating a contract, the power to terminate the contract—and thus a

contractual relationship—must still be established. To the extent that Plaintiff is arguing that

Defendants merely interfered with a contractual relationship, the Court notes that no such claim is

stated in Count 7 of the complaint, but nonetheless finds that Plaintiff’s retaliation claim in Count

6 may encompass an allegation of interference. Therefore, this Court denies Plaintiff’s objections,

and grants Defendants Shapiro’s and Primerano’s motion to dismiss Plaintiff’s breach of contract

claim set forth in Count 7.

C. Due Process: Question of Liberty Interest

In Count 11 of his second amended complaint, Plaintiff asserts that Defendants MU,

Primerano, Shapiro, and Gilbert violated his Fourteenth Amendment right to due process. Compl.,

at 45–46. While the Magistrate Judge found that Plaintiff sufficiently alleged a due process

violation based upon a property interest, she found that Plaintiff failed to sufficiently allege that a

liberty interest was at stake. See Proposed Findings and Recommendation, at 34. Plaintiff now

objects, and argues that he has stated sufficient facts which demonstrate that a liberty interest was

implicated. See Objections, at 14. The Court disagrees.

Under some circumstances, the discharge of a government employee may implicate the

employee’s liberty interests. See Board of Regents v. Roth, 408 U.S. 564, 572–73 (1976). One such

circumstance is when the government employee is deprived of his “‘freedom to take advantage of

other employment opportunities.’” See Sciolino v. City of Newport News, Va., 480 F.3d 642, 645

(4th Cir. 2007) (quoting Roth, 408 U.S. at 573). Thus, a “‘liberty interest is implicated by public

announcement of reasons for an employee’s discharge.’” See id. at 645–46 (emphasis added)

(quoting Johnson v. Morris, 903 F.2d 996, 999 (4th Cir. 1990)). “To state this type of liberty

interest claim under the Due Process Clause, a plaintiff must allege that the charges against him:

(1) placed a stigma on his reputation; (2) were made public by the employer; (3) were made in

conjunction with his termination or demotion; and (4) were false.” Sciolino, 480 F.3d at 646

(emphasis added).

Plaintiff attempts to argue that the firing itself—given the way the academic profession

operates—has harmed his reputation or his ability to find additional employment. See Objections,

at 14–18. However, these facts are irrelevant, as the key focus under Sciolino is not merely what

harm results from the discharge, but what harm results from the publicly stated reasons for the

discharge. See Roth, 408 U.S. at 573 (holding that the “State, in declining to rehire the [employee],

did not make any charge against him that might seriously damage his standing and associations in

his community,” such as an accusation that “he had been guilty of dishonesty, or immorality.”).

Put simply, Plaintiff has not stated anywhere in his complaint that Defendant MU made any

announcement, either in private or public, about the reason for his discharge or lack of

employment, and thus he certainly cannot also allege that any announcement was false, as required

by Sciolino.2 Therefore, the Court rejects Plaintiff’s objection to the Magistrate Judge’s finding

that Plaintiff failed to sufficiently plead a liberty interest.

D. Motion to Dismiss Count 11

As stated above, in Count 11 of his second amended complaint, Plaintiff asserts that

Defendants MU, Primerano, Shapiro, and Gilbert violated his Fourteenth Amendment right to due

process. Compl., at 45–46. The Magistrate Judge recommended that this Court grant Defendant

MU’s motion to dismiss Count 11, as it is entitled to sovereign immunity. Proposed Findings and

Recommendation, at 17. Plaintiff now objects and argues that Defendant MU’s sovereign

immunity is waived because Plaintiff only seeks prospective relief, which is allowed pursuant to

Ex parte Young. Objections, at 18–19. Plaintiff’s point is irrelevant, as Defendant MU is not a state

“official.”

Sovereign immunity under the Eleventh Amendment protects the State, as well as its

agencies, divisions, departments, and officials. Will v. Mich. Dept. of State Police, 491 U.S. 58, 78

(1989). Thus, an officer of a State acting in his or her official capacity is entitled to sovereign

immunity from claims for money damages. See id. at 70. However, under what is called the Ex

parte Young exception, a defendant may nonetheless be sued in his official capacity for

“prospective, injunctive relief … to prevent ongoing violations of federal law.” McBurney v.

Cuccinelli, 616 F.3d 393, 399 (4th Cir. 2010) (citing Ex Parte Young, 209 U.S. 123, 159–60

(1908)).

2 Plaintiff attempts to argue that Defendant MU stated false reasons for how his employment ended,

suggesting that he quit, or that he was never actually employed by Defendant MU. See Objections, at 15–17. These

accusations are not stated in Plaintiff’s complaint, and thus do not help Plaintiff survive a motion to dismiss.

Additionally, the Court is skeptical that these facts could be considered the type of “reasons” contemplated by Sciolino

or Roth. See Cannon v. Vill. of Bald Head Island, 891 F.3d 489, 503 (4th Cir. 2018) (holding that the Sciolino test is

met when the employer’s stated reasons for termination were employees’ “harassment,” “sexual harassment,” and

“detrimental personal conduct.”).

Importantly though, the Ex parte Young doctrine that provides an exception to state

sovereign immunity only applies to “state officials,” which is not Defendant MU. See Lee-Thomas

v. Prince George's Cnty. Pub. Sch., 666 F.3d 244, 248–49 (4th Cir. 2012) (holding that the

“prospective injunctive relief” exception to sovereign immunity does not apply to “Prince

George’s County Public Schools” because that Defendant is not an “official[] of the State of

Maryland.”). Thus, while seeking reinstatement may qualify as prospective injunctive relief,3

Defendant MU is nonetheless still immune from suit because it is not an “official,” as required by

Ex parte Young. Therefore, Defendant MU’s motion to dismiss Count 11 is granted.

E. Estoppel

Plaintiff next argues that “defendants’ motion to dismiss claims previously [denied] by the

court, particularly those in Count 5, 6, and 7, should be denied on the basis of estoppel.”

Objections, at 19. Plaintiff asserts that these motions were “previously [denied] by the court” when

this Court accepted the Magistrate Judge’s Proposed Findings and Recommendation regarding

Plaintiff’s Motion to Amend Complaint and Motion to Change Venue. See Objections, at 19; ECF

Nos. 51, 54. For obvious reasons, it is erroneous to suggest that Defendants’ motions to dismiss

should be estopped merely because this Court previously heard related arguments when disposing

of Plaintiff’s motions. Thus, this Court denies Plaintiff’s objection on the basis of estoppel.

F. Exception to Sovereign Immunity

Finally, Plaintiff objects4 to the Magistrate Judge’s finding that “[i]n regard to claims for

prospective relief [against the individual defendants in their official capacities], Plaintiff has not

3 See Bland v. Roberts, 730 F.3d 368, 394 (4th Cir. 2013) (holding that, while the state official was “entitled

to Eleventh Amendment immunity against those claims to the extent they seek monetary relief against him in his

official capacity, [the official] is not entitled to Eleventh Amendment immunity … on [the plaintiff’s] claims to the

extent the remedy sought is reinstatement.”) (emphasis added).

4 While Plaintiff states that he only “needs more clarification,” the Court will treat this as an objection in

order to preserve his argument. Objections, at 19.

included allegations in the second amended complaint identifying any particular defendant as an

official responsible for enforcing an unconstitutional policy; therefore, Plaintiff has yet to state a

claim against any of the individual defendants that would fall within an exception to sovereign

immunity.” Objections, at 19; Proposed Findings and Recommendation, at 48. The Court agrees

with Plaintiff.

As stated above, request for reinstatement falls within the prospective injunctive relief

exception of Ex parte Young.5 Therefore, if Plaintiff requests the prospective injunctive relief of

reinstatement against an individual Defendant, such Defendant will not have a defense of

sovereign immunity. In his complaint, Plaintiff states in his “Pray[er] for Relief[]” section, that

one of the forms of relief he is seeking against all Defendants is, essentially, a reinstatement.

Compl., at 46–47. Thus, the Court disagrees with the Magistrate Judge’s finding that “Plaintiff has

yet to state a claim against any of the individual defendants that would fall within an exception to

sovereign immunity.”

IV. CONCLUSION

Based upon the analysis provided above, the Court holds as follows:

1. Regarding Defendant MU’s Motion to Dismiss (ECF No. 66), the Court FULLY

ADOPTS the proposed findings and recommendations of Magistrate Judge Eifert, and GRANTS,

in part, and DENIES, in part, the motion. The Motion is granted as to the claims in Counts 1, 2,

3, 6, 7, 8, and 9, which are asserted under the WVHRA, and as to the claims asserted in Count 11,

and that all of these claims be DISMISSED, with prejudice, on the basis of sovereign immunity.

5 See also Coakley v. Welch, 877 F.2d 304, 305–07 (4th Cir. 1989) (holding that, pursuant to Ex parte Young,

the various individual defendants were not entitled to sovereign immunity when the plaintiff requested the “injunctive

remedy of reinstatement.”); Nelson v. University of Texas at Dallas, 535 F.3d 318, 323 (5th Cir. 2008) (holding that

the administrative head of a university should not have his motion to dismiss granted on grounds of sovereign

immunity because the plaintiff’s “request for reinstatement is sufficient to bring a case within the Ex parte Young

exception to Eleventh Amendment immunity, as it is a claim for prospective relief designed to end a continuing

violation of federal law.”) (emphasis added).

The Motion be denied as to the claims asserted in Counts 1, 2, 3, 6, 7, 8, and 9 under Title VII, and

those claims be permitted to proceed for further discovery.

2. Regarding Defendant Gilbert’s Motion to Dismiss (ECF No. 73), the Court

PARTIALLY ADOPTS the proposed findings and recommendations of Magistrate Judge Eifert,

and GRANTS, in part, and DENIES, in part, the motion. The Motion is granted as to the liberty

interest claim in Count 11, and that claim be dismissed, with prejudice. The Motion be denied as

to Counts 1, 3, and as to the property interest claim of Count 11, and those claims be permitted to

proceed for further discovery. The Court requests new proposed findings of fact and

recommendations regarding the following issue: whether this Court should grant or deny

Defendant Gilbert’s motion to dismiss Plaintiff’s neglect claim in Count 10 for reasons other than

the intracorporate conspiracy doctrine.

3. Regarding Defendants Hardman’s and Egleton’s Motion to Dismiss (ECF No. 75), the

Court FULLY ADOPTS the proposed findings and recommendations of Magistrate Judge Eifert,

and DENIES the motion. Plaintiff is permitted to conduct discovery on his claims against these

defendants asserted in Counts 1, 2, and 3.

4. Regarding Defendants Shapiro’s and Primerano’s Motion to Dismiss (ECF No. 77), the

Court PARTIALLY ADOPTS the proposed findings and recommendations of Magistrate Judge

Eifert, and GRANTS, in part, and DENIES, in part, the motion. The Motion be granted as to

Counts 7, and 9, and those Counts be dismissed, with prejudice. The Motion be granted as to the

liberty interest claim in Count 11, and that claim be dismissed, with prejudice. The Motion be

denied as to the discrimination claims asserted in Counts 1, 2, 3, 4, and 8; the retaliation claim in

Count 6; and the property interest claim in Count 11, and those claims be permitted to proceed for

further discovery. However, the Court requests new proposed findings of fact and

recommendations regarding the following issue: whether this Court should grant or deny

Defendants Shapiro’s and Primerano’s motion to dismiss Plaintiff's conspiracy claim in Count 5

for reasons other than the intracorporate conspiracy doctrine.

5. The Court ADOPTS the Magistrate Judge’s finding that all claims for money damages

against the individual defendants in their official capacities be dismissed, with prejudice, on the

ground of sovereign immunity. However, the Court requests new proposed findings of fact and

recommendations regarding the following issue: whether, in light of the Court’s holding in this

order, Plaintiffs claims for prospective relief against the individual defendants in their official

capacities should nonetheless be dismissed.

6. Regarding the motions related to briefing the issues addressed in the dispositive motions,

the Court FULLY ADOPTS the proposed findings and recommendations of Magistrate Judge

Eifert, GRANTS ECF No. 82, and DENIES ECF Nos. 80, 92, 94, and 95.

The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and any

unrepresented parties.

ENTER: March 26, 2019

fom

ROBERT C. CHAMBERS

UNITED STATES DISTRICT JUDGE

-14-