Smith v. Oden

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

TONY LEE SMITH, )

)

Plaintiff, )

)

v. ) Case No.: 2:18-cv-01375-CLM-JHE

)

MATTHEW WADE, ERIC STARR, )

BRITTANY BROWN, and DALTON )

SUMMERS, )

)

Defendants. )

MEMORANDUM OPINION

The magistrate judge filed a report that recommended this court dismiss

Plaintiff Tony Lee Smith’s complaint. (Doc. 70). Based on some new information,

the court disagrees with part of the magistrate judge’s rationale. But the court agrees

with the result: Smith’s complaint is due to be dismissed.

SMITH’S OBJECTIONS & NEW INFORMATION

The report had two primary recommendations. First, the magistrate judge

recommended that the court dismiss Defendant Summers under Rule 4(m) for

insufficient service. Second, after construing Defendants’ motion for summary

judgment as a motion to dismiss, the magistrate judge recommended the court

dismiss Smith’s remaining claims without prejudice under 42 U.S.C. § 1997e(a)

because Smith failed to exhaust his administrative remedies.

Smith objected to the report, focusing on the finding that he failed to exhaust

his administrative remedies. (Doc. 74). Smith asserted that the magistrate judge did

not require Defendants to submit the grievances he filed in October 2018 upon his

return to the Calhoun County Jail, which would show he did exhaust his

administrative remedies. (Id. at 5-7). So the magistrate judge ordered Defendants to

supplement their Special Report with all requests, inquiries, grievances, and appeals

entered by Smith on the Calhoun County Jail kiosk in October 2018 concerning the

allegations in the amended complaint. (Doc. 75).

Defendants complied by supplying Smith’s October 2018 kiosk submissions.

(Doc. 76). Smith filed many grievances between October 12 and October 29, seven

of which are relevant to the facts Smith alleged in his amended complaint.

1. On October 20, 2018, Smith submitted a general grievance in which he

alleged he had suffered an “unprovoked attack” by inmates on April 16, 2018, after

informing jail staff that he was in danger. (Doc. 76-1 at 39). Smith stated he

requested that Defendant Brown place him in protective custody, but she refused to

do so. (Id.). Smith noted Brown was “now a defendant in the U.S.D.C. (Smith v.

Oden, et al).” (Id.). He claimed he was in fear for his safety because the same

inmates who attacked him were still housed at the Jail. (Id.). He requested that jail

staff place him in protective custody until he was returned to state custody. (Id.). It

appears jail staff did not respond to Smith’s entry before he was returned to state

custody on October 29, 2018. (Id.).

2. On the same day, Smith filed an inquiry with the chaplain. Smith also told

the chaplain that inmates had attacked him on April 16, 2018, after notifying staff

that he was in imminent danger. (Doc. 76-1 at 40). Smith explained that he had a

pending “federal civil complaint against several employees for turning a blind eye

to their Constitutional obligations to offer protection.” (Id.). Smith requested to be

placed in protective custody until his transfer to state custody because the same

“gangmembers” who previously attacked him were still at the Jail. (Id.). The

chaplain did not respond to Plaintiff’s inquiry. (Id.).

3. The next day (October 21), Smith filed a second general grievance. In it,

Smith requested to be placed in protective custody due to the April 16, 2018 assault.

Smith also claimed that he had a case “presently pending in court.” (Doc. 76-1 at

41). He stated that he was placing jail staff “on notice of the high likelihood of an

assault.” (Id.). Jail staff did not respond to Plaintiff’s grievance before his transfer

on October 29, 2018. (Id.).

4. One day later (October 22), Smith filed a second inquiry with the chaplain,

again complaining that jail staff would not place him in protective custody. (Doc.

76-1 at 43). Smith explained that the same inmates who attacked him were still at

the Jail. (Id.).

5. That same day (October 22), Smith filed an inquiry with Mental Health in

which he stated that inmates attacked him on April 16, 2018, after he informed staff

that he was in danger. (Doc. 76-1 at 44). Smith requested to be placed in protective

custody pending his return to state custody. (Id.). Mental Health staff responded

that Smith would need to speak with an officer about his request. (Id.). Smith stated

he could not reach anyone and asked Mental Health staff to inform a supervisor of

his previous grievance. (Id.).

6. The next day (October 23), Smith filed an inquiry with the Commissary in

which he requested to be placed in protective custody due to “an unprovoked attack

here on April 16th 2018.” (Doc. 76-1 at 45). Smith said that he warned staff before

the attack, but they “failed to take reasonable measures to prevent the incident.”

(Id.). Plaintiff noted that he had a “42 usca 1983 petition in the USDC.” (Id.). Five

days later, “J. Luker,” a member of the jail staff, responded, “Ok.” (Id.).

7. On the same day (October 23), Smith filed medical and mental health

inquiries in which he requested to be placed in protective custody pending his

transfer to state custody. (Doc. 76-1 at 46-47). Smith said that he was “just trying

to prevent being assaulted again,” (id. at 46), because the same inmates who

assaulted him in April 2018 were still there and “freely communicate from block to

block,” (id. at 47). It does not appear that medical staff responded to Smith before

he was transferred on October 29, 2018. (Id. at 46-47).

ANALYSIS

The court now reviews the magistrate judge’s report, considering Smith’s

objections and the resulting new evidence.

A. April 2018 Assault & Conditions of Confinement

The magistrate judge found that Smith failed to exhaust his administrative

remedies concerning the April 16, 2018 inmate assault, as well as his claims of

unconstitutional conditions of confinement while he was on suicide watch from

April 16 to May 4, 2018. (Doc. 70 at 17-23). Because Smith submitted them months

later, the newly submitted October 2018 kiosk entries do not affect these claims nor

the magistrate judge’s reasoning—with which the court agrees.

A review of Smith’s kiosk entries from March to June 2018 reveals that Smith

did not file a grievance concerning the April 16, 2018 assault before he was

transferred to state prison on or about June 6, 2018. (Doc. 60-1). Rather, it was not

until Smith returned to the Calhoun County Jail in October 2018 that he filed general

grievances concerning the April 2018 assault. (Doc. 76-1 at 39, 41).

But Smith filed this lawsuit on August 29, 2018, (Doc. 1), meaning that this

case was pending when Smith filed his grievances in October 2018. Title 42 U.S.C.

§ 1997e(a) provides that “[n]o 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.” 42 U.S.C. 1997e(a). The Eleventh Circuit

has interpreted the term “brought,” as used in section 1997e(a), to mean “the filing

or commencement of a lawsuit, not . . . its continuation.” See Harris v. Garner, 216

F.3d 970, 974 (11th Cir. 2000). Thus, the Eleventh Circuit has held that an inmate

must exhaust his administrative procedures “before pursuing a § 1983 lawsuit.”

Brown v. Sikes, 212 F.3d 1205, 1207 (11th Cir. 2000) (emphasis added).

Smith did not exhaust his administrative remedies concerning the April 2018

assault before he filed this action in August 2018. None of Smith’s kiosk entries

show he filed grievances concerning his conditions of confinement while he was

confined to suicide watch from April 16 to May 4, 2018. (Doc. 60-1; doc. 76-1). So

the magistrate judge is right: Smith did not exhaust his administrative remedies

regarding these claims before filing this action.

Neither do Smith’s May 2018 kiosk entries alleging that the kiosk would not

allow him to submit additional grievances undo the magistrate judge’s

recommendation that Smith failed to exhaust his claim that Defendants failed to

protect him in April 2018 or subjected him to unconstitutional conditions of

confinement from April to May 2018. The defendants have submitted well over 30

grievances, requests, or inquiries Smith filed between May 4, 2018 and June 5, 2018.

(Doc. 60-1 at 34-72). Although Smith may not have been able to submit his

complaints under certain categories due to excess filings, (doc. 60-1 at 65, 68), he

was able to submit complaints during this time. Defendant Starr acknowledged in

his affidavit that the kiosk, in some cases, prevents an inmate from submitting

multiple entries under a single category to prevent inmates from “spamming the

system with duplicative requests.”1 (Doc. 89-1, Starr Decl. ¶ 17). But Starr noted

that if there is an issue with a category not allowing submissions, inmates may still

communicate with jail staff simply by submitting an entry under another category.

(Id.). Starr maintained that the categories within the kiosk are not restrictive and are

“merely designed to aid in quickly assigning the entry to the correct person at the

Jail.” (Id.).

For these reasons, Smith was not prohibited from filing grievances on the jail

kiosk. So the court agrees that Smith’s claims against Defendants concerning the

April 2018 assault and his conditions of confinement while on suicide watch in April

and May 2018 warrant dismissal for failure to exhaust administrative remedies

pursuant to 42 U.S.C. § 1997e(a). 2

1 Smith’s kiosk submissions during his most recent confinement at Calhoun County Jail

demonstrates the need for this feature. (Doc. 89-2 at 2-35). Over a three week period, Smith

submitted five inquiries under the “Work Release” category. (Id. at 19, 21, 26, 32, 34). While

Smith initially made a legitimate request to be considered for work release, he then began filing

inquiries for a job “with absolutely no supervision requiring one to be far away from this facility”;

promising to “work like 10 Mexicans come Monday”; advising staff that his driver’s license was

revoked but he could “drive pretty good without” one; stating he was “a work-machine just like

James Brown was a Love Machine”; and offering to show jail officials he was “being a good boy.”

2 Smith complains in his objections that he could not properly exhaust his administrative

remedies because he could not “sign” his grievances using the jail kiosk. (Doc. 74 at 1-4). But

Defendants do not argue that Smith failed to sign his grievances. Instead, Defendants alleged in

their Special Report – incorrectly – that Smith did not file any grievance concerning the allegations

in his amended complaint. (Doc. 25 at 9, 13).

B. October 2018 Incarceration

1. Failure to Exhaust: The court reaches the opposite result on Smith’s failure

to exhaust remedies related to the alleged October 2018 fights. A review of the new

evidence shows that Smith did submit general grievances to jail staff in October

2018, in which he requested to be placed in protective custody due to the April 2018

assault and his fear that it might happen again. (Doc. 76-1 at 39-41, 43-47). And,

once, a member of jail staff responded, “Ok.” (Doc. 76-1 at 45).

The United States Supreme Court explained that an inmate “must exhaust

available remedies but need not exhaust unavailable ones.” Ross v. Blake, 136 S.

Ct. 1850, 1858 (2016). The Court noted three circumstances in which administrative

remedies are unavailable: (1) when the administrative procedure “operates as a

simple dead end — with officers unable or consistently unwilling to provide any

relief to aggrieved inmates”; (2) when an administrative procedure is “so opaque that

it becomes, practically speaking, incapable of use”; and (3) “when prison

administrators thwart inmates from taking advantage of a grievance process through

machination, misrepresentation, or intimidation.” Id. at 1859-60.

Although the Eleventh Circuit has not ruled on this specific issue, other

circuits have found that an inmate meets the PLRA exhaustion requirement if

officials fail to timely respond to the inmate’s grievance. See Bryant v. Rich, 530

F.3d 1368, 1373, n.6 (11th Cir. 2008) (noting that other courts have found

administrative remedies “unavailable” when prison officials do not respond to

grievances or if they prevent the filing of grievances); Whitington v. Ortiz, 472 F.3d

804, 807-08 (10th Cir. 2007) (“[W]hen prison officials fail to timely respond to a

grievance, the prisoner has exhausted ‘available’ administrative remedies under the

PLRA”); Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 234 (6th Cir. 2006) (holding

“the exhaustion requirement is satisfied where prison officials fail to timely respond

to an inmate’s written grievance”) (quotation marks and citations omitted); Lewis v.

Washington, 300 F.3d 829, 833 (7th Cir. 2002) (refusing to permit prison officials

“to exploit the exhaustion requirement through indefinite delay in responding to

grievances”) (quotation marks and citation omitted).

Defendants argue in their supplemental brief that jail staff answered Smith’s

requests for protective custody by responding, “Ok,” on October 28, 2018, and if

Smith was unsatisfied with this response, he could have appealed. (Doc. 76-1 at 45;

doc. 89 at 4, 5). But it is unclear whether Smith should have known to appeal at this

point. Indeed, this one-word response could have meant that jail staff would grant

Smith’s request to be placed in protective custody. Or it could have meant jail staff

had considered Smith’s request for protective custody but did not plan to do anything

about it. Or it could simply mean, “we read it.” Defendants shed no light on how

this response should have been interpreted. (Doc. 89). So the court finds that jail

staff merely responding, “Ok,” could not alert Smith that his request was being

denied so that he knew to appeal.

Defendants’ contention that Smith could have appealed the jail staff’s lack of

responses to his other October 2018 kiosk entries is also unavailing. While

Defendants maintain that such an appeal would have been allowed, they

acknowledge there is “no official process to appeal a non-response in the kiosk

system to the Sheriff,” and that inmates generally do not receive instruction on this

matter. (Doc. 89 at 7; Doc. 89-1 at 7, Starr. Decl. ¶ 20).

Because jail staff failed to sufficiently respond to Smith’s general grievances

in which he requested to be placed in protective custody in October 2018 – thus

making Smith unaware of his need to appeal – Defendants have failed to carry their

burden of showing that Smith did not exhaust his administrative remedies before

filing his amended complaint. So Defendants’ motion to dismiss Plaintiff’s October

2018 failure to protect claims for failure to exhaust administrative remedies is due

to be denied.

2. Summary Judgment on the merits: That said, Defendants are entitled to

summary judgment on these claims. The Eighth Amendment’s prohibition on cruel

and unusual punishment imposes on institutional officers the duty to “take

reasonable measures to guarantee the safety of the inmates” in their custody. Farmer

v. Brennan, 511 U.S. 825, 832-33 (1994) (quotation marks and citations omitted). It

is clear, however, that not every injury suffered by an inmate at the hands of another

inmate “translates into constitutional liability for prison officials responsible for [the

inmate’s] safety.” Farmer, 511 U.S. at 834; see Zatler v. Wainwright, 802 F.2d 397,

400 (11th Cir. 1986). “‘In order to state a § 1983 cause of action against prison

officials based on a constitutional deprivation resulting from cruel and unusual

punishment, there must be at least some allegation of a conscious or callous

indifference to a prisoner’s rights, thus raising the tort to constitutional stature.’”

Williams v. Bennett, 689 F.2d 1370, 1380 (11th Cir. 1982) (quoting Wright v. El

Paso Cty. Jail, 642 F.2d 134, 136 (5th Cir. 1981)).3 It is when institutional officials’

deliberate indifference to a known danger or risk exposes an inmate to objectively,

“sufficiently serious” harm that a constitutional violation occurs. Farmer, 511 U.S.

at 834 (quoting Wilson v. Seiter, 501 U.S. 294, 298 (1991)); see Brown v. Hughes,

894 F.2d 1533, 1537 (11th Cir. 1990) (“When officials become aware of a threat to

an inmate’s health and safety, the [E]ighth [A]mendment’s proscription against cruel

and unusual punishment imposes a duty to provide reasonable protection.”).

A danger or risk is “known” only if the institutional official is both “aware of

facts from which the inference could be drawn that a substantial risk of serious harm

exists, and he . . . draw[s] th[at] inference.” Farmer, 511 U.S. at 837. “[A]n

3 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981), the Eleventh Circuit adopted

as binding precedent all decisions of the former Fifth Circuit rendered prior to October 1, 1981.

official’s failure to alleviate a significant risk that he should have perceived but did

not,” cannot establish liability on the part of the official. Id. at 838. Also, the known

risk of injury must be a “‘strong likelihood, rather than a mere possibility.’” Edwards

v. Gilbert, 867 F.2d 1271, 1276 (11th Cir. 1989).

Once it is established that an institutional official knew of a substantial danger

or risk to an inmate, it must then be shown that the official was deliberately

indifferent to that risk. “[A]n Eighth Amendment claimant need not show that a

prison official acted or failed to act believing that harm actually would befall an

inmate; it is enough that the official acted or failed to act despite his knowledge of a

substantial risk of serious harm.” Farmer, 511 U.S. at 842. Deliberate indifference

requires “a state of mind more blameworthy than negligence.” Id. at 835. Finally,

Plaintiff must produce sufficient evidence that Defendants’ deliberate indifference

to a known danger or risk caused Plaintiff’s constitutional injury. See Hale v.

Tallapoosa Cty., 50 F.3d 1579, 1582 (11th Cir. 1995).

The record is devoid of evidence that Defendants were aware of a credible

threat to Smith, or a strong likelihood that Smith would be harmed, during Smith’s

brief stint at the Jail in October 2018. Edwards, 867 F.2d at 1276. Neither Smith’s

amended complaint nor his kiosk grievances show that Smith personally informed

Defendants of a “particularized threat or fear” of harm from other inmates. Carter

v. Galloway, 352 F.3d 1346, 1349-50 (11th Cir. 2003). For instance, Smith claims

he was involved in two fights with gang members and that gang members threatened

him with “homemade knives.” (Doc. 15 at 13). But Smith does not allege he

personally informed Defendants of these incidents—or even when these incidents

occurred. (Id.). Nor do the newly discovered kiosk entries mention these incidents.

(Doc. 76-1).

Smith’s kiosk entries, at best, conveyed only a vague and generalized threat

of harm during his October 2018 incarceration. While Smith claimed that the same

inmates who assaulted him in April 2018 were still housed at the Jail, he did not

allege in his grievances that he was being housed in the same area as these

individuals or that he was otherwise in close contact with them. (Doc. 76-1 at 39-

41, 43-47). Nor does he allege that the same persons who assaulted him in April

2018 were the one who fought him in October 2018. (Doc. 76-1 at 39-41, 43-47).

Officers must possess enough details about a threat to enable them to conclude

that it presents a strong likelihood of injury. See Marbury v. Warden, 936 F.3d 1227,

1236 (11th Cir. 2019) (“The unfortunate reality is that threats between inmates are

common and do not, under all circumstances, serve to impute actual knowledge of a

substantial risk of harm.”) (quotation marks and citation omitted). Smith

“convey[ed] nothing about the nature of the anticipated risk” and his generalized

fear of harm is too vague and unspecific to rise to the level of a substantial risk from

which Defendants could infer a strong likelihood of injury, not just a mere

possibility. Id. at 1237.

Smith seeks to show Defendants were aware of a substantial risk of harm to

him based on a history of violence at the Jail. Specifically, he alleges that “[t]here

are an average [of] five to seven violent attacks per week in the Calhoun County Jail

at the hands of violent street gangs.” (Doc. 15 at 12). While occasional or isolated

attacks by one inmate on another do not constitute cruel and unusual punishment,

confinement in a prison “where violence and terror reign” is actionable. Purcell ex

rel. Estate of Morgan v. Toombs Cty., Ga., 400 F.3d 1313, 1320 (11th Cir. 2005)

(explaining that a prisoner has an Eighth Amendment right to be reasonably

protected from “constant threat of violence” by his fellow inmates) (citation

omitted). To establish deliberate indifference based on a generalized risk, a plaintiff

must show “that serious inmate-on-inmate violence was the norm or something close

to it.” Id. at 1322.

Smith’s statement does not show that serious inmate-on-inmate violence was

so pervasive at Calhoun County Jail that it constituted a substantial risk of serious

harm to which Defendants were deliberately indifferent. See Purcell, 400 F.3d at

1323 (“In the jail setting, a risk of harm to some degree always exists by the nature

of its being a jail.”). Smith does not allege he personally witnessed these inmate

assaults. Nor is there any evidence in the record of the total jail population or the

sections of the Jail in which these assaults occurred that would place Smith’s

statement in context. Neither is it clear from the record over what time period these

incidents occurred. See Harrison v. Culliver, 746 F.3d 1288, 1299-300 (11th Cir.

2014) (holding that four assaults over a three-year period in an institution housing

between 830 and 990 inmates was “hardly sufficient to demonstrate that [the

institution] was a prison ‘where violence and terror reign.’” (quoting Purcell, 400

F.3d at 1320)).

Along with evaluating the number of inmate-on-inmate assaults against the

number of inmates housed at the facility, the Eleventh Circuit has also noted that,

when it held that a generalized risk of violence could support a claim of deliberate

indifference to a substantial risk of serious harm, “a plaintiff has pointed to specific

features of a facility or its population rendering it particularly violent.” Marbury,

936 F.3d at 1235. This includes evidence of “pervasive staffing and logistical issues

rendering prison officials unable to address near-constant violence, tensions between

different subsets of a prison population, and unique risks posed by individual

prisoners or groups of prisoners due to characteristics like mental illness.” Id. Smith

has not made such a showing here. So Defendants’ motion for summary judgment

on Plaintiff’s failure to protect claims, (doc. 45), is due to be granted and the claims

are due to be dismissed with prejudice.

C. Defendant Summers

Smith objects to the magistrate judge’s recommendation that the court dismiss

Defendant Summers for insufficient service under Fed. R. Civ. P. 4(m). (Doc. 74

at 7-8). Smith argues that Defendant Wade, as Sheriff, is “responsible” for

Summers’ conduct. (Id. at 7). But “supervisory officials are not liable under § 1983

for the unconstitutional acts of their subordinates on the basis of respondeat superior

or vicarious liability.” See Cottone v. Jenne, 326 F.3d 1352, 1360 (11th Cir. 2003).

Defendants provided the court with Summers’s last known address, and the court

and the U.S. Marshals Service have attempted service on Summers without success.

(Doc. 23 at 2; Doc. 26; Doc. 73). So Defendant Summers is due to be dismissed

without prejudice for insufficient service pursuant to Fed. R. Civ. P. 4(m).

D. Pending Motions

Smith has moved for production of surveillance video of Calhoun County Jail’s

detox/isolation area to support his claim of unconstitutional conditions of

confinement while assigned to the area from April to May 2018. (Doc. 84 at 1-3).

Because Smith’s conditions of confinement claim is subject to dismissal for

Plaintiff’s failure to exhaust his administrative remedies pursuant to 42 U.S.C. §

1997e(a), his request for discovery is DENIED.

Smith also moves to further amend his complaint to name as defendants

Lieutenant Chames, Lieutenant Luker, and Officer Abernathy. (Doc. 85 at 1-3).

Plaintiff claims these jail officials failed to respond to his October 2018 grievances

in which he requested to be placed in protective custody. (Id.). But an inmate does

not have a constitutionally protected liberty interest in a jail’s grievance procedure.

See Bingham v. Thomas, 654 F.3d 1171, 1177-78 (11th Cir. 2011) (holding that a

prison grievance procedure does not provide an inmate with a constitutionally

protected interest); Allen v. St. John, 827 F. App’x 1002, 1006 (11th Cir. 2020)

(finding that the district court correctly dismissed plaintiff’s claims that he submitted

multiple grievances to sheriff but never received a response). And the record

demonstrates that Smith conveyed through his grievances only a vague and

generalized threat of harm during his October 2018 incarceration, which is

insufficient to show that jail officials were aware of a strong likelihood of injury to

him. See Marbury v. Warden, 936 F.3d 1227, 1236, 1237 (11th Cir. 2019). So

allowing Smith to name these individuals as defendants based solely on his October

2018 grievances would be futile. So Plaintiff’s motion to further amend his

complaint is DENIED.

CONCLUSION

Having reviewed and considered de novo all the materials in the court file,

including the report and recommendation and Smith’s objections, the court

ADOPTS and ACCEPTS the report and recommendation in part, and REJECTS

it in part.

First, the court finds Defendant Summers is due to be dismissed without

prejudice pursuant to Fed. R. Civ. P. 4(m) for insufficient service and Defendants’

motion to dismiss Summers is due to be denied as moot. Second, the court finds

Plaintiff’s claims concerning the April 2018 inmate assault and his conditions of

confinement on suicide watch from April to May 2018 are due to be dismissed for

failure to exhaust administrative remedies pursuant to 42 U.S.C. § 1997e(a).4

After consideration of Defendants’ Second Supplemental Special Report and

brief, (docs. 76, 89), the court finds that Smith exhausted his administrative remedies

under 42 U.S.C. § 1997e(a) regarding his October 2018 failure to protect claims.

(Doc. 76-1). So the court REJECTS the magistrate judge’s recommendation that

the court grant Defendants’ motion to dismiss those claims pursuant to § 1997e(a).

But Defendants’ motion for summary judgment on Plaintiff’s October 2018 failure

4 Although Defendant Summers has not been served with the amended complaint, or otherwise

responded to this action, any claim against him concerning the April 2018 inmate assault and

Smith’s conditions of confinement on suicide watch would also be subject to dismissal under 42

U.S.C. § 1997e(a).

to protect claims is due to be granted because the court finds that no genuine issues

of material fact exist.

A Final Judgment will be entered separately.

DONE and ORDERED this the 30th of November, 2020.

COREY L. “ADE -

UNITED STATES DISTRICT JUDGE

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