Attaway v. Hallcon's Safety Director

UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ILLINOIS

MICHEAL N.B. ATTAWAY, )

)

Plaintiff, )

)

vs. ) Case No. 3:23-cv-02613-GCS

)

ALEXANDRIA BROWN, )

ZACHARY MOORE, )

DAVID DEAN, )

DARREN GALLOWAY, )

and )

ALFONSO DAVID, )

)

Defendants. )

MEMORANDUM & ORDER

SISON, Magistrate Judge:

INTRODUCTION AND BACKGROUND

Pending before the Court are two motions for summary judgment on the issue of

exhaustion of administrative remedies filed by Defendant David, (Doc. 89, 90), and

Defendants Moore, Dean, and Galloway. (Doc. 94, 95). Defendants argue that Plaintiff

failed to exhaust his administrative remedies concerning the claims against them prior to

filing the present lawsuit because he failed to follow the grievances procedures set forth

in the Illinois Administrative Code. 1 Plaintiff, by and through counsel, filed an

1 On April 9, 2024, the Court granted Defendant Brown’s motion to withdraw the

affirmative defense of exhaustion of administrative remedies. (Doc. 91).

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opposition to the motions. (Doc. 96). On July 25, 2024, the Court held a hearing on the

motions, heard testimony and argument, and took the matter under advisement. Based

on the reasons delineated below, the Court DENIES Defendant David’s partial motion

for summary judgment for failure to exhaust administrative remedies (Doc. 89) and

GRANTS in part and DENIES in part Defendants Moore, Dean, and Galloway’s motion

for summary judgment on the issue of exhaustion (Doc. 94).

On July 28, 2023, Plaintiff Micheal Attaway, a former inmate with the Illinois

Department of Corrections (“IDOC”), filed this action for deprivations of his

constitutional rights while he was detained at Shawnee Correctional Center (“Shawnee”)

pursuant to 42 U.S.C. § 1983.2 Specifically, he alleges that prison staff failed to protect

him from sexual advances by his cellmate, that he was brutally attacked and raped by his

cellmate, and since the attack neither the administrators nor medical or mental health

personnel were willing to help him. Thereafter, on September 13, 2023, Plaintiff filed an

amended complaint. (Doc. 17).

Specifically, Plaintiff alleges that on May 27, 2023, he informed Defendant Sergeant

Dean that his cellmate, Defendant Inmate William Isaiah Shanholtzer, was sexually

harassing him. (Doc. 17, p. 9). Defendant Dean indicated he would not take any action

because it was not his responsibility to act. About 45 minutes after seeking help from

Defendant Dean, Plaintiff alleges he was brutally attacked and raped by his cellmate.

2 The record reflects that Plaintiff is no longer incarcerated.

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Plaintiff alleges that as a result his right shoulder was dislocated, and his left hip and

lower back were injured. He tried to inform the wing officer (whose identity he has been

unable to ascertain because the officer refuses to provide it) about the incident, but the

officer refused to report it. The wing officer apparently believed he was lying.

On May 28, 2023, Plaintiff sent a statement to Defendant Warden Galloway about

the attack and rape, but Defendant Galloway did not respond. (Doc. 17, p. 10). On May

29, 2023, Plaintiff informed Defendant Zach Moore, but Defendant Moore refused to start

an investigation or to take any other action. Id. at p. 9.

Plaintiff sought medical treatment for his injuries related to the attack and rape,

but Defendant Brown refused care. (Doc. 17, p. 10). He further alleges that Defendant Dr.

David refused to send him for an x-ray that might reveal internal damage. Plaintiff also

alleges that Defendants Brown and David refused any care for chronic injuries from an

old car crash and insisted there was no treatment for those injuries. Id. Plaintiff seeks

monetary relief, an order of protection against inmate William Shanholtzer, and an order

that Defendants be held accountable for failing to follow PREA protocols. Id. at p. 11.

On August 29, 2023, Plaintiff’s filed another lawsuit. In this Complaint from case

23-cv-2946-DWD, Plaintiff reiterates that on May 27, 2023, he was brutally attacked and

raped by his cellmate. (Doc. 49, p. 7). He alleges he has written many statements about

the details of his attack, and he has written to Defendant Galloway and Internal Affairs

officers to no avail. He has also sought mental health services, and he has filed grievances,

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but he received no response to those pleas for help. Eventually, he wrote to the PREA

Coordinator in Springfield, Illinois, and almost 2.5 months after the attack, an

investigation was commenced. He alleges that during the investigation, “they” claimed

he failed to report the incident, which he maintains is untrue. He alleges that due to the

negligence and deliberate indifference of defendants, there is no forensic evidence of the

attack, and he may be left with permanent injuries. He seeks monetary compensation,

and he asks that the defendants be held to PREA protocols. Id. at p. 8.

These two cases were consolidated on November 6, 2023. (Doc. 48). The next day,

on November 7, 2023, the Court conducted a preliminary review of the complaints

pursuant to 28 U.S.C. § 1915A. Plaintiff was allowed to proceed on the following claims:

Count 1: Failure to protect claim against Defendant Dean for refusing to assist

Plaintiff prior to the rape on May 27, 2023;

Count 2: Eight Amendment deliberate indifference claim against Defendants

Galloway and Moore for refusing to document the incident or to render aid; and

Count 3: Eighth Amendment deliberate indifference claim against

Defendants David and Brown for refusing medical care after the attack and rape.

(Doc. 53).

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FACTS3

The parties agree that these are the relevant grievances relating to the claims in

this case: a grievance dated May 27, 2023, a grievance dated June 29, 2023,4 and a

grievance dated September 29, 2023.

On May 27, 2023, Plaintiff filed a grievance (# 2023-5-265) complaining about

issues with his current cellmate wherein he was afraid of being sexually assaulted and

asked for a single cell. (Doc. 90-2, p. 74, 75; 95-3, p. 1, 2). The record pertaining to this

grievance contains an Offender Grievance Cancelation dated May 31, 2023, wherein,

Plaintiff asked to withdraw grievance # 2023-5-265. This document purportedly contains

Plaintiff’s signature. (Doc. 90-2, p. 72; 95-3, p. 3). According to the investigational

interview conducted by Defendant Moore, who investigated this grievance, Plaintiff

spoke to Defendant Moore on May 31, 2023. (Doc. 95-3, p. 4-6). Allegedly, during this

investigation, Plaintiff admitted he did not get along with his cellmate, denied any

physical altercation between them, and admitted that the cellmate never tried to grab him

or force him in any way. He also agreed to cancel the grievance. This document too

purports to contain Plaintiff’s signature. Id.

During the Pavey hearing, Plaintiff testified that he met with Defendant Moore two

3 The facts are taken from the parties’ submissions, the records attached thereto, and the

testimony from the Pavey hearing.

4 It is difficult to ascertain from the record whether Plaintiff filed one grievance or two

grievances on June 29, 2023.

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to three days after he filed the grievance. During this meeting Plaintiff attempted to tell

Defendant Moore what occurred, but Defendant Moore refused to listen. Plaintiff

testified that he did not sign the documents referenced above, that the signatures are not

his on the documents, and that he did not agree to withdraw the grievance. Plaintiff also

testified that after he met with Defendant Moore, he was moved to different cell in

another cell house and that he never got anything back on that grievance. Additionally,

Plaintiff wrote another grievance about this situation and never got a response back.

Lastly, Plaintiff admitted that he previously exhausted some administrative remedies

while incarcerated.

Defendant Zachary Moore testified that he was employed as a correctional

counselor at Shawnee since October 2023. Prior to that time, he was employed as the 7:00

to 3:00 shift Internal Affairs Officer. Defendant Moore testified that he met with Plaintiff

because of the allegations contained in the May 27, 2023, grievance. Defendant Moore

averred that Plaintiff wanted to cancel the grievance because the allegations were false,

and Plaintiff alleged those issues in the grievance so he could get placement in a single

cell. Further, Defendant Moore averred that he took Plaintiff’s statement, typed it out,

and Plaintiff signed both the statement and cancellation form in his presence.

On June 29, 2023, Plaintiff submitted a grievance (# 2023-8-53) complaining about

medical treatment for his right shoulder and that he could not do the exercises he was

assigned to do. The Administrative Review Board (“ARB”) received the grievance on

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August 28, 2023. Thereafter, on January 2, 2024, (after Plaintiff initially filed this lawsuit

and his amended complaint) the ARB denied the grievance finding that it was

appropriately addressed by the facility and that treatment was at the discretion of the

IDOC physicians. (Doc. 90-1, p. 11; 95-2, p. 2).5 It is hard to ascertain from this grievance

who Plaintiff is grieving about.

That same day, Plaintiff filed another grievance complaining about staff conduct

and medical treatment regarding his right shoulder. (Doc. 90-1, p. 24, 25; 95-2, p. 15, 16).

Plaintiff specifically mentions the nurse practitioner and requests that his “shoulder be

checked out by a doctor outside this facility.” The ARB received the grievance on July 10,

2023. Along with the grievance, Plaintiff sent a letter to the ARB stating that he filed

directly with the ARB as “I attempted to file it here at Shawnee Correctional Center and

it was returned to me without being acknowledged or given a grievance number. . . . This

would be time #5 that they have done this to me.” (Doc. 90-1, p. 26; Doc. 95-2, p. 17).

Subsequently, on July 12, 2023, the ARB returned the grievance finding the facility

responses were not included and that the grievance was not in accordance with DR504F.

(Doc. 90-1, p. 23; Doc. 95-2, p. 14). This grievance does not have a number and does not

name any Defendants by name/description except “nurse practitioner.”

On September 29, 2023, Plaintiff filed a lengthy emergency grievance complaining

5 The record does not contain this grievance; it only contains the ARB’s determination

regarding this grievance. It is possible that the two grievances dated June 29, 2023, are one and

the same. The record, however, is not clear as to this.

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about staff conduct, mail handling, medical treatment, and ADA Disability

Accommodation. (Doc. 90-1, p. 13-22; 95-2, p. 4-13). In this grievance, among many things,

Plaintiff complains that he was brutally attacked and raped by his cellmate on May 27,

2023; that he submitted at least 35 requests to the healthcare unit to treat his injuries; that

he needs medical treatment; that Defendant Dean could have prevented the attack; and

that “IDOC & Wexford Health Employees were informed . . . and they have chosen to do

little to nothing about it.” (Doc. 90-1, p. 16, 17; 95-2, p. 7, 8). The ARB received the

grievance on October 10, 2023; seven days later, the ARB returned the grievance finding

that it did not follow DR 504.840 in that it “[n]eeds a CAO response due to being marked

emergency.” (Doc. 90-1, p. 12; Doc. 95-2, p. 4). The record does not reflect that Plaintiff

attempted to exhaust this grievance by resubmitting it with the Chief Administrative

Officer’s response.

LEGAL STANDARDS

For purposes of the present summary judgment motion, this Court will view the

evidence in the light most favorable to Plaintiff as the non-moving party and draw all

reasonable inferences in his favor. See Leibas v. Dart, 108 F.4th 1021, 1024 (7th Cir. 2024).

“Summary Judgment is proper if the pleadings, discovery materials, disclosures and

affidavits demonstrate no genuine issue of material fact such that [Defendants are]

entitled to judgment as a matter of law.” Wragg v. Village of Thornton, 604 F.3d 464, 467

(7th Cir. 2010). Lawsuits filed by inmates are governed by the provisions of the Prison

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Litigation Reform Act (“PLRA”). See 42 U.S.C. § 1997e(a). That statute states, in pertinent

part, that “no action shall be brought with respect to prison conditions under section 1983

of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other

correctional facility until such administrative remedies as are available are exhausted.”

Id. (emphasis added). The Seventh Circuit requires strict adherence to the PLRA’s

exhaustion requirement. See, e.g., Dole v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006) (noting

that “[t]his circuit has taken a strict compliance approach to exhaustion.”). Exhaustion

must occur before the suit is filed. See Ford v. Johnson, 362 F.3d 395, 398 (7th Cir. 2004). A

plaintiff cannot file suit and then exhaust his administrative remedies while the suit is

pending. Id.

Moreover, “[t]o exhaust remedies, a prisoner must file complaints and appeals in

the place, and at the time, the prison administrative rules require.” Pozo v. McCaughtry,

286 F.3d 1022, 1025 (7th Cir. 2002). Consequently, if a prisoner fails to use a prison’s

grievance process, “the prison administrative authority can refuse to hear the case, and

the prisoner’s claim can be indefinitely unexhausted.” Dole, 438 F.3d at 809. The purpose

of exhaustion is to give prison officials an opportunity to address the inmate’s claims

internally, prior to federal litigation. See Kaba v. Stepp, 458 F.3d 678, 684 (7th Cir. 2006)

Under Pavey, the Seventh Circuit held that “debatable factual issues relating to the

defense of failure to exhaust administrative remedies” are not required to be decided by

a jury but are to be determined by the judge. Pavey v. Conley, 544 F.3d 739, 740-741 (7th

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Cir. 2008). Thus, where failure to exhaust administrative remedies is raised as an

affirmative defense, the Court set forth the following procedures:

(1) The district judge conducts a hearing on exhaustion and permits whatever

discovery relating to exhaustion he deems appropriate. (2) If the judge

determines that the prisoner did not exhaust his administrative remedies, the

judge will then determine whether (a) the plaintiff has failed to exhaust his

administrative remedies, and so he must go back and exhaust; (b) or, although

he has no unexhausted administrative remedies, the failure to exhaust was

innocent (as where prison officials prevent a prisoner from exhausting his

remedies), and so he must be given another chance to exhaust (provided that

there exist remedies that he will be permitted by the prison authorities to

exhaust, so that he’s not just being given a runaround); or (c) the failure to

exhaust was the prisoner’s fault, in which event the case is over. (3) If and

when the judge determines that the prisoner has properly exhausted his

administrative remedies, the case will proceed to pretrial discovery, and if

necessary a trial, on the merits; and if there is a jury trial, the jury will make

all necessary findings of fact without being bound by (or even informed of)

any of the findings made by the district judge in determining that the prisoner

had exhausted his administrative remedies.

Id. at 742.

As an inmate confined within the Illinois Department of Corrections, Plaintiff was

required to follow the regulations contained in the Illinois Department of Correction’s

Grievance Procedures for Offenders (“grievance procedures”) to exhaust his claims. See

20 ILL. ADMIN. CODE § 504.800, et seq. The grievance procedures first require inmates to

file their grievance with the counselor within 60 days of the discovery of an incident. See

20 ILL. ADMIN. CODE § 504.810(a). The grievance form must:

contain factual details regarding each aspect of the offender’s complaint,

including what happened, when, where, and the name of each person who is

the subject of or who is otherwise involved in the complaint. This provision

does not preclude an offender from filing a grievance when the names of

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individuals are not known, but the offender must include as much descriptive

information about the individual as possible.

20 ILL. ADMIN. CODE § 504.810(c). Grievances that are unable to be resolved through

routine channels are then sent to the grievance officer. See 20 ILL. ADMIN. CODE

§ 504.820(a). The Grievance Officer will review the grievance and provide a written

response to the inmate. See 20 ILL. ADMIN. CODE § 504.830(a). “The Grievance Officer shall

consider the grievance and report his or her findings and recommendations in writing to

the Chief Administrative Officer within two months after receipt of the grievance, when

reasonably feasible under the circumstances.” 20 ILL. ADMIN. CODE § 504.830(e). “The

Chief Administrative Officer shall review the findings and recommendation and advise

the offender of his or her decision in writing. Id.

If the inmate is not satisfied with the Chief Administrative Officer’s response, he

or she can file an appeal with the Director through the Administrative Review Board. The

grievance procedures specifically state, “[i]f, after receiving the response of the Chief

Administrative Officer, the offender still believes that the problem, complaint or

grievance has not been resolved to his or her satisfaction, he or she may appeal in writing

to the Director. The appeal must be received by the Administrative Review Board within

30 days after the date of the decision.” 20 ILL. ADMIN. CODE § 504.850(a). The inmate shall

attach copies of the Grievance Officer’s report and the Chief Administrative Officer’s

decision to his appeal. Id. “The Administrative Review Board shall submit to the Director

a written report of its findings and recommendations.” 20 ILL. ADMIN. CODE § 504.850(d).

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“The Director shall review the findings and recommendations of the Board and make a

final determination of the grievance within 6 months after receipt of the appealed

grievance, when reasonably feasible under the circumstances. The offender shall be sent

a copy of the Director’s decision.” 20 ILL. ADMIN. CODE § 504.850(e).

Exhaustion of administrative remedies is an affirmative defense in an action

against prison officials, and the burden of proof is on the officials.

DISCUSSION

Defendants maintain that Plaintiff’s grievance dated June 29, 2023, does not

specifically reference them or any action or inaction by them. Thus, Plaintiff failed to

exhaust his administrative remedies against them with that grievance. Further,

Defendants maintain that the grievance dated September 23, 2023, was returned for

failing to attach the CAO response. It was furthermore untimely as the grievance was

filed September 23, 2023, and the incident giving rise to the claims occurred on May 27,

2023. Lastly, the IDOC Defendants argue that the grievance dated May 27, 2023, was

“withdrawn” by Plaintiff and, thus, Plaintiff could not have exhausted his claims with

that grievance.

Grievance dated May 27, 2023

During the Pavey hearing, Plaintiff contends that he was thwarted in his attempts

to exhaust his grievance dated May 27, 2023, and thus, the grievance process was

unavailable to him. See, e.g., Ross v. Blake, 578 U.S. 632, 644 (2016) (noting that

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administrative remedies can be unavailable “when prison administrators thwart inmates

from taking advantage of a grievance process.”); see also Walker v. Sheahan, 526 F.3d 973,

979 (7th Cir. 2008); Dole, 438 F.3d at 809. Under the PLRA, “an inmate is required

to exhaust those, but only those, grievance procedures that are ‘capable of use’ to obtain

‘some relief for the action complained of.’” Ross, 578 U.S. at 642 (quoting Booth v. Churner,

532 U.S. 731, 738 (2001)). Ross describes three scenarios in which the administrative

process is “unavailable”: first, when the process “operates as a simple dead end,” such

that “officers [are] unable or consistently unwilling to provide any relief to aggrieved

inmates”; second, when the process is “so opaque that it becomes, practically speaking,

incapable of use”; and third, “when prison administrators thwart inmates

from taking advantage of a grievance process through machination, misrepresentation,

or intimidation.” Id. at 643–644. See also Ramirez v. Young, 906 F.3d 530, 538 (7th Cir.

2018) (explaining that these scenarios are “not a closed list”).

Here, the Court finds that Defendants have not carried their burden of proof to

warrant summary judgment. Defendants contend that the grievance process was clearly

available to Plaintiff as he has exhausted his administrative remedies as to Defendant

Brown and he exhausted his administrative remedies in other cases. However, as noted

supra, there is conflicting testimony from Plaintiff and Defendant Moore as with whether

Plaintiff signed the cancellation of the grievance, and the investigation form relevant to

this grievance. Plaintiff testified that he did not sign those forms, that the signatures on

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the forms were not his, and that he never heard anything back regarding this grievance.

Defendant Moore testified that Plaintiff signed those forms on May 31, 2023. Considering

this dispute, the Court finds that the Defendants did not meet its burden of proof as it

failed to present sufficient evidence that the signatures were Plaintiff’s. For example, it

could have provided evidence comparing the signature on both forms with Plaintiff’s

signature on other documents and/or provided expert testimony comparing the

signatures. The Court finds Plaintiff’s attempts at exhaustion with this grievance were

thwarted. Thus, Plaintiff’s claim against Defendant Dean in Count 1, failure to protect

claim, will proceed. However, this grievance cannot be used to exhaust as to the claims

against the other Defendants as the allegations against them pertain to conduct that

occurred after Plaintiff was allegedly assaulted on May 27, 2023.

Grievance dated June 29, 2023

Defendants argue that Plaintiff failed to properly identify them by name or by

description in this grievance. Although exhaustion is not intended to provide individual

notice to each prison official who might later be sued, it is designed to provide the prison

with notice of the problem to give the facility an opportunity to fix it. See Maddox v. Love,

655 F.3d 709, 722 (7th Cir. 2011) (citing Jones v. Bock, 549 U.S. 199, 219 (2007)); Turley v.

Rednour, 729 F.3d 645, 649 (7th Cir. 2013). As such, an inmate must provide enough

information to serve the grievance’s function of giving “prison officials a fair opportunity

to address [an inmate’s] complaint.” Maddox, 655 F.3d at 722. The Illinois Administrative

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Code requires that an inmate’s grievance “contain factual details regarding each aspect

of the offender’s complaint, including what happened, when, where and the name of each

person who is the subject of or who is otherwise involved in the complaint.” 20 ILL.

ADMIN. CODE § 504.810(c). An inmate does not have to specifically identify the individual

by name, but he must include as much descriptive information as possible. Id.

Here, the Court finds that the grievance June 29, 2023, cannot serve to exhaust as

to the claims against the IDOC Defendants, but can serve to exhaust as to Defendant

David. As stated previously, this grievance does not name or describe any conduct

specifically attributable to these Defendants. The Court notes that it does describe a

“nurse practitioner in the healthcare unit about my shoulder in my right shoulder, she

ordered x-rays of it that showed at the joint/ball and socket were within normal range”

whom he saw that day. It further mentions that multiple hospitals refused to do anything

for it. It goes on to state “the healthcare units refused to do anything other than the bare

minimal.” (Doc. 90-1, p. 24, 25). As to the IDOC defendants, this grievance does not name

them, and it does not describe the conduct that is related to the claims that were allowed

to proceed in this case. As to Defendant David, it is a closer call, and at this stage the

Court finds that Plaintiff has exhausted his claims as to Defendant David. The grievance

provides a time frame of June 2023 wherein healthcare repeatedly refused to do anything.

This obviously could include Defendant David, which Plaintiff will have the burden to

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prove at the merits stage. As to this stage, the grievance suffices to put the prison on

notice of the claims and the opportunity to address the problems.

Grievance dated September 29, 2023

Lastly, the Court addresses the emergency grievance dated September 29, 2023, in

which Plaintiff complained about the alleged conduct relating to the allegations in this

case. The ARB received the grievance on the grievance on October 10, 2023, and on

October 17, 2023, the ARB responded to the grievance: “[d]oes not follow DR. 504.840.

Needs a CAO response due to being marked emergency.” The record does not reflect that

Plaintiff attempted to exhaust this grievance by resubmitting it with this information.

Thus, this grievance cannot be said to exhaust administrative remedies against

Defendants for these claims. Thus, this grievance was not exhausted for procedural

reasons and not resolved by the ARB. Furthermore, as pointed out by Defendants,

Plaintiff did not file this grievance within 60 days of the alleged incident as required by

20 ILL. ADMIN. CODE § 504.810(a). As such, this grievance does not exhaust Plaintiff’s

administrative remedies as to the claims against these Defendants.

CONCLUSION

For the foregoing reasons, the Court DENIES Defendant David’s partial motion

for summary judgment for failure to exhaust administrative remedies (Doc. 89) and

GRANTS in part and DENIES in part Defendants Moore, Dean, and Galloway’s motion

for summary judgment on the issue of exhaustion (Doc. 94). The Court DISMISSES

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without prejudice the claims against Defendants Moore and Galloway in Count 2. At the

close of the case, the Court DIRECTS the Clerk of the Court to enter judgment in favor

of Defendants Zachary Moore and Darren Galloway and against Plaintiff Michael N.B.

Attaway on Count 2. Remaining in this case are the claims against Defendant Dean in

Count 1 and the claims against Defendant David and Brown in Count 3.

IT IS SO ORDERED.

Digitally signed

DATED: March 27, 2025. by udge Sison

Slt Ce Date: 2025.03.27

15:04:18 -05'00'

GILBERT C. SISON

United States Magistrate Judge

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