Versiah Taylor v. United States

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 17-12570

Non-Argument Calendar

________________________

D.C. Docket No. 5:14-cv-00096-RH-GRJ

VERSIAH TAYLOR,

Plaintiff-Appellant,

versus

CHRISTOPHER PEKEROL,

IRS-CI Agent, et al.,

Defendants,

UNITED STATES OF AMERICA,

Defendant-Appellee.

________________________

Appeal from the United States District Court

for the Northern District of Florida

________________________

(January 7, 2019)

Before MARCUS, MARTIN and NEWSOM, Circuit Judges.

PER CURIAM:

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Versiah Taylor, a federal prisoner proceeding pro se, appeals: (1) the denial

of his motions for appointed counsel; (2) the partial dismissal of his third amended

complaint, which raised Fourth, Fifth, and Eighth Amendment Bivens1 claims,

unlawful disclosure claims under 26 U.S.C. § 7431, and conspiracy claims under

42 U.S.C. § 1985 against the United States, Internal Revenue Service (“IRS”)

agents Christopher Pekerol and Margaret Weiss, and United States Marshall Glenn

Miller; and (3) the grant of summary judgment on his surviving unlawful

disclosure claims. His case stems from an IRS investigation into his three

businesses. During the course of the investigation, Taylor was arrested by state

officials for cocaine possession and released on bond. Thereafter, Taylor was

arrested by federal officials, remained in federal custody pretrial and throughout

his trial, and ultimately, was found guilty by a jury of filing false tax returns, theft

of government property, and identity theft.

On appeal, Taylor argues that the district court: (1) abused its discretion in

denying his motions to appoint counsel and in not telling him the denials were

immediately appealable; (2) erred in dismissing his Bivens and § 1985 claims

because the defendants were not entitled to qualified immunity on his

constitutional claims, and he sufficiently pled his § 1985 claim; (3) erred in

1

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).

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granting summary judgment before addressing a pending discovery motion; and

(4) violated his right to a jury trial. After careful review, we affirm.

I.

First, we reject Taylor’s claim that the district court abused its discretion in

handling his motion to appoint counsel. We review a district court’s decision not

to appoint counsel for abuse of discretion. Smith v. Sch. Bd. of Orange Cty., 487

F.3d 1361, 1365 (11th Cir. 2007). “A district court abuses its direction if it applies

an incorrect legal standard, applies the law in an unreasonable or incorrect manner,

follows improper procedures in making a determination, or makes findings of fact

that are clearly erroneous.” Citizens for Police Accountability Political Comm. v.

Browning, 572 F.3d 1213, 1216-17 (11th Cir. 2009). The denial of a motion for

appointment of counsel is not immediately appealable. See Holt v. Ford, 862 F.2d

850, 851-54 (11th Cir. 1989) (en banc) (§ 1983 case).

Under the Federal Rules of Civil Procedure, a party may file objections to a

magistrate judge’s ruling on nondispositive matters within 14 days of being served

with the order. Fed. R. Civ. P. 72(a). A pro se litigant’s failure to timely challenge

a magistrate judge’s nondispositive order in the district court waives the right to

appeal the order. Smith, 487 F.3d at 1365; Farrow v. West, 320 F.3d 1235, 1248

n.21 (11th Cir. 2003). A pro se prisoner’s court filings are deemed filed on the

date they were delivered to prison authorities for mailing and are assumed to have

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been delivered on the date of signing, absent evidence to the contrary. Daker v.

Comm’r, Ga. Dep’t of Corrs., 820 F.3d 1278, 1286 (11th Cir. 2016).

“A plaintiff in a civil case has no constitutional right to counsel.” Bass v.

Perrin, 170 F.3d 1312, 1320 (11th Cir. 1999). However, a district court may

request, but not require, that an attorney represent an indigent plaintiff. 28 U.S.C.

§ 1915(e)(1); see Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296,

310 (1989) (holding that the statute does not authorize “coercive appointments of

counsel”). The court has broad discretion in deciding to appoint counsel and

should do so only in “exceptional circumstances,” where the facts and legal issues

are so complex that the assistance of counsel is required. Bass, 170 F.3d at 1320;

Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993).

For starters, Taylor failed to timely object to the magistrate judge’s denial of

his motion to appoint counsel, thus waiving the right to appeal from it. See Smith,

487 F.3d at 1365; Farrow, 320 F.3d at 1248 n.21. But even if the denial of his

application for a lawyer were properly before us, we would conclude that the

district court did not abuse its discretion in holding that it lacked authority to

compel any lawyer to represent Taylor. The Supreme Court held in Mallard that

district courts have no authority to compel a lawyer under 28 U.S.C. § 1915 to

represent a party in a civil case, and there is no binding precedent that a district

court has the inherent power to do so. See 28 U.S.C. § 1915(e)(1); Mallard, 490

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U.S. at 310; Citizens for Police Accountability, 572 F.3d at 1216-17. Moreover,

the denial of counsel was not an immediately appealable order. See Holt, 862 F.2d

at 851-54.

II.

Next, we disagree with Taylor that the district court erroneously dismissed

his Bivens and § 1985 claims against Miller, Pekerol, and Weiss. Typically, we

review de novo the grant of a motion to dismiss for failure to state a claim under

Fed. R. Civ. P. 12(b)(6). Chaparro v. Carnival Corp., 693 F.3d 1333, 1335 (11th

Cir. 2012). But, if a party, after being notified of the time to file objections and the

consequences of failing to do so, fails to properly object to a magistrate judge’s

Report and Recommendation (“R&R”), he “waives the right to challenge on appeal

the district court’s order based on unobjected-to factual and legal conclusions.”

11th Cir. R. 3-1. This means that “the party may not challenge them on appeal in

the absence of plain error or manifest injustice.” Resolution Trust Corp. v.

Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).

While we read briefs filed by pro se litigants liberally, issues not briefed on

appeal are deemed abandoned. Timson v. Sampson, 518 F.3d 870, 874 (11th Cir.

2008). An appellant abandons a claim when he makes only passing references to

it, or raises it in a perfunctory manner without supporting arguments and authority.

Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014). In

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addition, we usually will not consider issues that were not raised in the district

court. Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331-32 (11th Cir.

2004).

To survive a motion to dismiss, 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). A claim is facially plausible when the

plaintiff pleads factual content that allows the court to draw a reasonable inference

that the defendant is liable for the misconduct alleged. Id. While district courts

should construe pro se complaints liberally, Powell v. Lennon, 914 F.2d 1459,

1463 (11th Cir. 2007), conclusory allegations, unwarranted deductions of facts, or

legal conclusions masquerading as facts will not prevent dismissal. Oxford Asset

Mgmt., Ltd. v. Jaharis, 297 F.3d 1182, 1188 (11th Cir. 2002).

Government officials may avoid liability under the doctrine of qualified

immunity. Alcocer v. Mills, 906 F.3d 944, 950-51 (11th Cir. 2018). To receive

qualified immunity, officials first must establish that they were acting within the

scope of their discretionary authority. Id. at 951. If they do so, the burden shifts to

the plaintiff to show that the officials were not entitled to qualified immunity both:

(1) because they violated a constitutional right, and (2) because the violation was

clearly established. Id.

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The Supreme Court held in Bivens that there exists an implied private right

of action for damages against federal officers for violating a citizen’s constitutional

rights. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 66 (2001). The violation must,

however, be the proximate cause of damages. Dean v. Gladney, 621 F.2d 1331,

1335 (5th Cir. 1980).2 Because claims arising under 42 U.S.C. § 1983 and Bivens

are similar, we generally apply § 1983 law to Bivens cases. Abella v. Rubino, 63

F.3d 1063, 1065 (11th Cir. 1995). To establish a claim for conspiracy to violate

constitutional rights under 42 U.S.C. § 1983, the plaintiff must show the existence

of a conspiracy that actually deprived him of a specific constitutional right. Grider

v. City of Auburn, Ala., 618 F.3d 1240, 1260 (11th Cir. 2010).

Section 1985 provides a way to redress conspiracies to violate civil rights.

42 U.S.C. § 1985; Farese v. Scherer, 342 F.3d 1223, 1230 (11th Cir. 2003).

Section 1985(3) creates a cause of action for conspiracies that deprive any person

or class of persons of the equal protection of the laws, or of equal privileges and

immunities under the laws. 42 U.S.C. § 1985(3). To state a § 1985(3) claim, a

plaintiff must allege facts showing “(1) a conspiracy, (2) for the purpose of

depriving, either directly or indirectly, any person or class of persons of the equal

protection of the laws, or of equal privileges and immunities under the laws; and

(3) an act in furtherance of the conspiracy, (4) whereby a person is either injured in

2

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), we adopted as

binding precedent all Fifth Circuit decisions issued before October 1, 1981.

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his person or property of any right or privilege of a citizen of the United States.”

Childree v. UAP/GA CHEM, Inc., 92 F.3d 1140, 1146-47 (11th Cir. 1996). To

establish the second element, a plaintiff must show “some racial, or perhaps

otherwise class-based, invidiously discriminatory animus behind the conspirators’

action.” Id. at 1247 (quotation omitted). Qualified immunity is not available as a

defense to a 42 U.S.C. § 1985(3) claim. Johnson v. City of Fort Lauderdale, Fla.,

126 F.3d 1372, 1379 (11th Cir. 1997).

The Fourth Amendment protects against unreasonable searches and seizures,

requiring that warrants be supported by probable cause and particularly describe

the area to be searched, and the persons or things to be seized. U.S. Const. amend.

IV. Warrant applications must contain sufficient information to establish probable

cause. Holmes v. Kucynda, 321 F.3d 1069, 1083 (11th Cir. 2003). Probable cause

to search is founded on a “fair probability that contraband or evidence of a crime

will be found in a particular place.” Feliciano v. City of Miami Beach, 707 F.3d

1244, 1251 (11th Cir. 2013) (quotation omitted). If an officer obtains a warrant by

making false statements intentionally and recklessly in an application, the Fourth

Amendment is violated and he lacks qualified immunity. Franks v. Delaware, 438

U.S. 154, 154-56 (1978); Holmes, 321 F.3d at 1083. Regardless of the officer’s

liability, however, a warrant will be valid if the false statements were immaterial to

the existence of probable cause. Madiwale v. Savaiko, 117 F.3d 1321, 1326 (11th

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Cir. 1997). While the scope of a search pursuant to a search warrant is governed

by its terms, a search may be as extensive as necessary to locate the items specified

in the warrant, so long as it is reasonable in light of the totality of the

circumstances. United States v. Waugneux, 683 F.2d 1343, 1352 (11th Cir. 1982).

The Due Process Clause of the Fifth Amendment protects against

deprivations of “life liberty, or property, without due process of law.” U.S. Const.

amend. V. A criminal defendant must be released before trial on personal

recognizance or upon execution of an unsecured bond, unless the court determines

that release will not reasonably ensure his appearance or will endanger the safety

of others. 18 U.S.C. § 3142(b). When there is a serious risk of flight or

obstruction of justice, the court, on its own or upon a motion by the government,

must hold a detention hearing to determine whether any conditions will reasonably

assure the defendant’s appearance and the safety of the others. Id. § 3142(f)(2). If

after the hearing the court determines that no condition or combination of

conditions will suffice, it shall order that the defendant be placed in pretrial

detention. Id. § 3142(e).

The Interstate Agreement on Detainers (“IAD”) is an agreement between 48

states, the United States, and the District of Columbia that creates uniform

procedures for lodging and executing a detainer. Alabama v. Bozeman, 533 U.S.

146, 148 (2001). “A detainer is a request filed by a criminal justice agency with

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the institution in which a prisoner is incarcerated, asking the institution either to

hold the prisoner for the agency or to notify the agency when release of the

prisoner is imminent.” Carchman v. Nash, 473 U.S. 716, 719 (1985). Under

Article III of the IAD, a person who has “entered upon a term of imprisonment,”

and against whom a detainer has been lodged regarding pending charges in another

state, may request a final disposition on his pending charges. 18 U.S.C. App. 2 § 2

Art. III(a). The officer having custody over the prisoner must then notify all

prosecuting officers and courts where the request is being sent. Id. Art. III(b). The

prisoner must be brought to trial within 180 days of the notice, otherwise the

charges must be dismissed. Id. Art. III(a), (d).

A claim for selective prosecution is analyzed as an equal protection claim

brought under the Fifth Amendment’s Due Process Clause. See United States v.

Armstrong, 517 U.S. 456, 464 (1996); Geaneas v. Willets, 911 F.2d 579, 587 (11th

Cir. 1990). An individual claiming that he was subject to selective prosecution

must establish both a discriminatory effect and purpose, i.e. that (1) similarly

situated individuals were not prosecuted and (2) discriminatory animus was behind

the disparate treatment. See United States v. Brantley, 803 F.3d 1265, 1271 (11th

Cir. 2015); cf. Strickland v. Alderman, 74 F.3d 260, 264 (11th Cir. 1996) (listing

elements of § 1983 claim for selective enforcement of a standing water ordinance).

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The Eighth Amendment provides that “[e]xcessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punishments inflicted.” U.S.

Const. amend. VIII. It does not guarantee a right to bail, only that whatever bail

imposed not be excessive. Campbell v. Johnson, 586 F.3d 835, 842 (11th Cir.

2009). “[T]he test for excessiveness is whether the terms of release are designed to

ensure a compelling interest of the government.” Id. at 843. The Code of

Alabama provides that when a defendant is charged with an offense punishable by

less than ten years, “the judge or court must also direct the clerk of court . . . to

admit the defendant to bail in a sum which may be prescribed by the court.” Ala.

Code § 12-22-222(b) (1975). Similarly, Alabama Rule of Criminal Procedure 7.2

gives the court the authority to impose certain conditions of release, including

requiring that a defendant post bond, if the court determines that pretrial release

will not reasonably assure his appearance or that he poses a real and present danger

to others. Ala. R. Crim. P. 7.2(a); see Ala. R. Crim. P. 7.3(b).

Here, because Taylor failed to object to the magistrate judge’s R&R

recommending the dismissal of his constitutional claims against the IRS agents, we

review those claims only for plain error or manifest injustice. See Resolution Trust

Corp., 996 F.2d at 1149.3 Taylor essentially brought two sets of claims against

3

We decline to review Taylor’s newly raised issues about whether he stated a claim under the

Federal Tort Claims Act, whether there was a speedy trial violation, and whether he stated an

excessive detention claim under the Eighth Amendment, since they were not presented to the

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them: (1) that the IRS agents conspired with state officials to have him detained;

and (2) that the IRS agents conspired to subject African American businesses to

unreasonable searches and seizures. The district court’s dismissal of those claims

was not plainly erroneous nor manifestly unjust.

First, as for his claims concerning his detention by the state, Taylor’s § 1985

claims fail because he did not allege that the purpose of the agents’ actions was

motivated by any discriminatory animus. See 42 U.S.C. § 1985(3); Childree, 92

F.3d at 1147. Nor was it plain error, nor manifestly unjust for the district court to

dismiss his Fourth Amendment claim because no binding precedent addresses

whether contacting state authorities and asking them to hold a state defendant for

questioning constitutes a Fourth Amendment violation. See Resolution Trust

Corp., 996 F.2d at 1149. As for his Eighth Amendment excessive bail claim, the

complaint does not allege any facts indicating that the IRS agents directly

participated in the bail process, by, for example, requesting that bail be imposed or

preventing the state court judge from exercising his discretion. Ala. Code § 12-22-

222(b) (1975); Ala. R. Crim. P. 7.2; Dean, 621 F.2d at 1335. Since we can find no

district court. See Access Now, Inc., 385 F.3d at 1331. In addition, Taylor has not raised in his

brief -- and has therefore abandoned -- any issue about the district court’s determination that his

claims against the United States and his official capacity claims were barred by sovereign

immunity, that the individual defendants were acting within their discretionary authority, that he

was not entitled to notice of the Turbo Tax subpoena, that the electronic surveillance did not

constitute a Fourth Amendment violation, that he failed to state a Fifth Amendment claim in

Count 60, and that he failed to state a Fourth Amendment claim against Miller. See Timson, 518

F.3d at 874.

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plain error or manifest injustice in the dismissal of his constitutional claims, we

can find no plain error or manifest injustice in the agents’ entitlement to qualified

immunity as to this set of claims. See Alcocer, 906 F.3d at 951.

As for Taylor’s general claims about unreasonable searches and seizures

directed at African American businesses, Taylor’s conspiracy claims arising under

§§ 1983 and 1985 rested upon a legal conclusion, but without any supporting facts

suggesting in any way how the agents’ actions were discriminatory. See 42 U.S.C.

§ 1985(3); Grider, 618 F.3d at 1260; Childree, 92 F.3d at 1147; Oxford Asset

Mgmt., Ltd., 297 F.3d at 1188. Taylor also failed to state a claim for selective

prosecution because he did not offer any facts indicating that the law was being

enforced differently on account of race. See Brantley, 803 F.3d at 1271. As for

the Fourth Amendment claims that the agents made a series of misrepresentations

in obtaining warrants to search two of Taylor’s businesses, the complaint does not

indicate that the alleged misrepresentations were made either intentionally or

recklessly. See Franks, 438 U.S. at 154-56; Holmes, 321 F.3d at 1083.

Moreover, Taylor failed to state a Fourth Amendment claim about the

execution of the first search warrant. Because the complaint does not state how the

purported representations were essential to establish probable cause or what the

scope of the search warrant was, we cannot determine whether the agents abused

their discretion in blocking the entrance to his business, questioning clients, and

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conducting a visual search of his office. See Savaiko, 117 F.3d at 1326;

Waugneux, 683 F.2d at 1352. As for his Fourth Amendment claim concerning the

second search warrant and the seizure of some documents, again he failed to allege

how the agents’ statements were false or why they were essential to a

determination of probable cause. See Savaiko, 117 F.3d at 1326.4 Thus, the

magistrate judge did not plainly err nor commit manifest injustice by determining

that the IRS agents were entitled to qualified immunity as to this set of claims.

Nor did the district court err in dismissing Taylor’s constitutional claims

leveled against United States Marshal Miller, which essentially allege that Miller

conspired to deprive him of bail in federal district court. Taylor failed to state a

Fifth Amendment claim because his complaint says that he stipulated to a waiver

of his federal detention hearing and, therefore, Miller could not be the proximate

cause of the denial of pretrial release. See Gladney, 621 F.2d at 1335. As for his

claim based on the IAD -- which allows a person who has “entered upon a term of

imprisonment,” and against whom a detainer has been lodged based on pending

4

As for Taylor’s reliance on Boyd v. United States, 116 U.S. 616 (1886), overruled in part by

Warden, Md. Penitentiary v. Hayden, 387 U.S. 294 (1967), we are unpersuaded. In Boyd, the

Supreme Court held that the compelled production of documents to be used against the furnisher,

whether under a warrant or subpoena, violated the Fourth Amendment and were rendered

inadmissible under the Fifth Amendment. Fisher v. United States, 425 U.S. 391, 407 (1976).

However, the extent of Boyd’s expansive interpretation of the Fourth and Fifth Amendments has

been narrowed. See id. Notably, the Supreme Court has since held that records seized during

the execution of a search warrant do not implicate the Fifth Amendment. Andresen v. Maryland,

427 U.S. 463, 466-67, 471-72, 475-77 (1976). Thus, Boyd does not apply to Taylor’s case, since

Taylor was not compelled to produce anything and Boyd does not apply to items seized during

the execution of search warrants. See Fisher, 425 U.S. at 407; Andresen, 427 U.S. at 466-67,

471-72, 475-77.

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charges in another state, to request a final disposition on his pending charges, 18

U.S.C. App. 2 § 2 Art. III(a) -- it also fails. Under the IAD, a detainer is “a

notification filed with the institution in which a prisoner is serving a sentence,

advising that he is wanted to face pending criminal charges in another

jurisdiction.” United States v. Mauro, 436 U.S. 340, 359 (1978). Notably, the

notice of bond revocation hearing that Taylor received from the state while he was

in federal custody did not amount to a “detainer,” since he was not serving a term

of imprisonment in federal custody, but rather was a pretrial detainee pending trial

in both state and federal court. See 18 U.S.C. App. 2 § 2 Art. III(a); see also

United States v. Currier, 836 F.2d 11, 16 (1st Cir. 1987) (“The terms of the [IAD]

apply exclusively to prisoners who are actually serving their sentences, and not to

pretrial detainees.”).

As for his Eighth Amendment claim, Taylor failed to state a claim for

excessive bail. Taylor appears to argue that Miller deprived him of federal bail

because the state detainer issue was never resolved before his federal trial and

sentencing. However, Taylor waived his right to a detention hearing in federal

court, he failed to challenge his pretrial detention during his federal criminal

proceeding, and in any event, Miller had no authority to impose or deny him bail in

a criminal proceeding. Moreover, there is no constitutional right to bail. See

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Campbell, 586 F.3d at 842. Thus, Taylor has failed to allege that Miller deprived

him of any Eighth Amendment right.

Finally, Taylor did not adequately state a claim for conspiracy against Miller

under either §§ 1985(3) or 1983. As for the § 1985 claim, Taylor failed to allege

that the conspiracy was motivated by some discriminatory animus, and, as for the §

1983 claim, he failed to show that he was actually deprived of a constitutional right

as a result of any conspiracy. See 42 U.S.C. § 1985(3); Grider, 618 F.3d at 1260;

Childree, 92 F.3d at 1147.

III.

We also find no merit to Taylor’s claim that the district court erred in

granting summary judgment before addressing a pending discovery motion. We

review a district court order granting summary judgment de novo, viewing “the

evidence and all reasonable inferences drawn from it in the light most favorable to

the nonmoving party.” Battle v. Bd. of Regents., 468 F.3d 755, 759 (11th Cir.

2006). A district court may grant summary judgment if the movant establishes that

there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law. Shaw v. City of Selma, 884 F.3d 1093, 1098 (11th

Cir. 2018). However, summary judgment is not appropriate where the nonmoving

party has been unable to obtain responses to discovery requests. Fernandez v.

Bankers Nat’l Life Ins. Co., 906 F.2d 559, 570 (11th Cir. 1990). Where the

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discovery sought is necessary to obtain facts in order to oppose the motion for

summary judgment, a district court’s failure to rule on a pending discovery motion

may constitute reversible error. See id. at 571 (holding that the district court erred

by not ruling on plaintiff’s motion to compel before granting summary judgment).

Here, however, the district court did not err by “prematurely” granting

summary judgment because there was no pending discovery motion. Taylor’s

discovery motion had been denied before the district court had granted summary

judgment, therefore, and all that was pending at that time was his motion for

reconsideration of the denial of that motion. Moreover, Taylor’s motion for

reconsideration was addressed contemporaneously with the defendant’s motion for

summary judgment.

IV.

Finally, we are unpersuaded by Taylor’s claim that the district court violated

his right to trial by jury. It is, of course, true that the Seventh Amendment

preserves the right to a jury trial in civil cases. U.S. Const. amend. VII. However,

the Federal Rules of Civil Procedure authorize the dismissal of a plaintiff’s case for

failure to state a claim before trial. Fed. R. Civ. P. 12(b)(6). Indeed, we’ve

expressly held that a district court’s dismissal of a case based on a matter of law

before trial does not violate the Seventh Amendment. See Garvie v. City of Fort

Walton Beach, Fla., 366 F.3d 1186, 1190 (11th Cir. 2004) (holding that the grant

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of summary judgment did not violate the Seventh Amendment). And the Supreme

Court has made clear that the entry of “summary judgment does not violate the

Seventh Amendment.” Jefferson v. Sewon Am., Inc., 891 F.3d 911, 919 (11th Cir.

2018) (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 336 (1979)). Here, the

district court did not violate Taylor’s right to a jury trial by dismissing his

complaint in part and granting summary judgment on the remaining claims.

AFFIRMED.

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