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Green v. Greene

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


August 5, 2009

SHAWN GREEN, PLAINTIFF,
v.
GARY GREENE, SUPERINTENDENT; DARWIN LACLAIR, SUPERINTENDENT; DAVID A. CARPENTER, PROGRAM DEPUTY; RICHARD W. POTTER, ADMINISTRATIVE DEPUTY; R. EASTMAN, CAPTAIN; R. JUCKELL, J. BAISLEY; D. SAWYER; S. WINCHELL; B. WINCHELL; T. LOOMAN; T. VEDDER; SHEPANSKI; D. WILLIAMS; C. RUSSELL; C. CHARBONEAU; J. ALLEN; G. BLOOD; JOHN DOE; JOHN/JANE DOE; J. DANIEL; R. HILLIER; KENNETH MCLAUGHLIN; CENTRAL OFFICE REVIEW COMMITTEE; R. MCCLURE; IMAM ELMI; C. GOODMAN, INMATE GRIEVANCE PROGRAM SUPERVISOR; AND R.K. WOODS, DEFENDANTS.

The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this pro se prisoner civil rights action filed by Shawn Green ("Plaintiff") against twenty-seven individuals who are employed by, and one committee that is part of, the New York State Department of Correctional Services ("Defendants") are (1) a motion to dismiss for failure to state a claim filed by Defendant Hillier, (2) a motion to dismiss for failure to state a claim filed by the remaining Defendants ("the non-Hillier Defendants"), and (3) Magistrate Judge David E. Peebles' Report-Recommendations of March 30, 2009, and April 30, 2009, recommending that Defendant Hillier's motion be granted, and the non-Hillier Defendants' motion to dismiss be granted in part and denied in part. (Dkt. Nos. 57, 65, 67, 69.) Plaintiff has filed timely Objections to both Report-Recommendations. (Dkt. Nos. 68, 70.) For the reasons set forth below, both Report-Recommendations are accepted and adopted in their entirety; Defendant Hillier's motion to dismiss is granted and the non-Hillier Defendants' motion to dismiss is granted in part and denied in part; various of Plaintiff's claims are dismissed; and the remainder of Plaintiff's Second Amended Complaint is conditionally dismissed unless, within thirty (30) days of this Decision and Order, Plaintiff pays the Court's filing fee of three hundred fifty dollars ($350).

I. BACKGROUND

On February 5, 2008, Plaintiff filed a Second Amended Complaint in this action against Defendants. (Dkt. No. 20.) Generally, liberally construed, Plaintiff's Second Amended Complaint asserts claims arising under the First, Eighth and Fourteenth Amendments, based on a number of incidents of retaliation, excessive force, religious discrimination, inadequate medicare care and/or cruel-and-unusual punishment that occurred while he was incarcerated at Great Meadow Correctional Facility in 2006 and 2007. (Id.) As to Defendant Hillier, Plaintiff asserts a First Amendment denial-of-access-to-courts claim, alleging that Defendant Hillier failed to provide him with a copy of a grievance decision and also denied him an extension of time to appeal that decision. (Id. at ¶ 49.)

On May 29, 2008, the non-Hillier Defendants filed a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), seeking dismissal of all claims against them on a variety of grounds (including untimeliness, the Eleventh Amendment, a lack of personal involvement, a lack of standing, the doctrine set forth in Heck v. Humphrey, 512 U.S. 477 [1994], and the doctrine of qualified immunity). (Dkt. No. 57.) On August 11, 2008, after receiving an extension of time in which to do so, Plaintiff submitted a response in opposition to the non-Hillier Defendants' motion to dismiss. (Dkt. No. 60.) On March 30, 2009, Magistrate Judge Peebles issued a Report-Recommendation recommending that the non-Hillier Defendants' motion be granted in part and denied in part. (Dkt. No. 67.) In particular, Magistrate Judge Peebles recommended that only the following claims asserted by Plaintiff be dismissed: (1) Plaintiff's claim for violation of 42 U.S.C. § 1983 premised on breach of contract, as well as any state law claim of breach of contract; (2) his claim for deliberate indifference to a serious medical need under the Eighth Amendment; (3) his claim for civil conspiracy; (4) his claim against Defendant B. Winchell alleging that Winchell gave false testimony at a disciplinary hearing; (5) his free-exercise-of-religion claim under the First Amendment; (6) all claims against Defendants McLaughlin and Greene; and (7) all claims against the remaining Defendants in their official capacities. (Id.)*fn1 On April 17, 2009, Plaintiff filed his Objections to the Report-Recommendation. (Dkt. No. 68.)

Meanwhile, on December 11, 2008, Defendant Hillier also filed a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), seeking dismissal of all claims against her because (1) Plaintiff failed to state a claim, and (2) she is entitled to qualified immunity. (Dkt. No. 65, Part 2.) On January 15, 2009, Plaintiff submitted a response in opposition to Defendant Hillier's motion to dismiss. (Dkt. No. 66.) On April 30, 2009, Magistrate Judge Peebles issued a Report-Recommendation recommending that Defendant Hillier's motion be granted, because Plaintiff failed to allege facts plausibly suggesting that he suffered an actual deprivation (as a result of Defendant Hillier's actions) that would support a due process claim. (Dkt. No. 69.)*fn2 On May 18, 2009, Plaintiff filed an Objection to the Report-Recommendation. (Dkt. No. 70.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review

When specific objections are made to a magistrate judge's report-recommendation, the Court makes a "de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C).*fn3

When only general objections are made to a magistrate judge's report-recommendation, the Court reviews the report-recommendation for clear error or manifest injustice. See Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.1999).*fn4 Similarly, when a party makes no objection to a portion of a report-recommendation, the Court reviews that portion for clear error or manifest injustice. See Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995) (Sotomayor, J.) [citations omitted]; Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition [citations omitted]. After conducing the appropriate review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1)(C).

B. Standard Governing a Motion to Dismiss for Failure to State a Claim

It has long been understood that a defendant may base a motion to dismiss for failure to state a claim on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga County, 549 F. Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de novo review) [citations omitted].

With regard to the first ground, Fed. R. Civ. P. 8(a)(2) requires that a pleading contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2) [emphasis added]. By requiring this "showing," Fed. R. Civ. P. 8(a)(2) requires that the pleading contain a short and plain statement that "give[s] the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests." Jackson, 549 F. Supp.2d at 212, n.17 [citations omitted]. The main purpose of this rule is to "facilitate a proper decision on the merits." Id. at 212, n.18 [citations omitted].*fn5

The Supreme Court has long characterized this pleading requirement under Fed. R. Civ. P. 8(a)(2) as "simplified" and "liberal," and has repeatedly rejected judicially established pleading requirements that exceed this liberal requirement. Id. at 212, n.20 [citations omitted]. However, even this liberal notice pleading standard "has its limits." Id. at 212, n.21 [citations omitted]. As a result, numerous Supreme Court and Second Circuit decisions exist holding that a pleading has failed to meet this liberal notice pleading standard. Id. at 213, n.22 [citations omitted].

Most notably, in Bell Atlantic Corporation v. Twombly, the Supreme Court reversed an appellate decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1. Bell Atlantic Corporation v. Twombly, 127 S.Ct. 1955 (2007). In doing so, the Court "retire[d]" the famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Twombly, 127 S.Ct. at 1968-69. Rather than turning on the conceivability of an actionable claim, the Court clarified, the "fair notice" standard turns on the plausibility of an actionable claim. Id. at 1965-74. The Court explained that, while this does not mean that a pleading need "set out in detail the facts upon which [the claim is based]," it does mean that the pleading must contain at least "some factual allegation[s]." Id. at 1965 [citations omitted]. More specifically, the "[f]actual allegations must be enough to raise a right to relief above the speculative level [to a plausible level]," assuming (of course) that all the allegations in the complaint are true. Id. [citations omitted].*fn6

As have other Circuits, the Second Circuit has recognized that the clarified plausibility standard that was articulated by the Supreme Court in Twombly governs all claims, including claims brought by pro se litigants (although the plausibility ofthose claims is to be assessed generously, in light of the special solicitude normally afforded pro se litigants).*fn7 It should be emphasized that Fed. R. Civ. P. 8's plausibility standard, explained in Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated, "Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2). Erickson v. Pardus, 127 S.Ct. 2197, 2200 (2007) [citation omitted; emphasis added]. That statement was merely an abbreviation of the often-repeated point of law--first offered in Conley and repeated in Twombly--that a pleading need not "set out in detail the facts upon which [the claim is based]" in order to successfully state a claim. Twombly, 127 S.Ct. 1965, n.3 (citing Conley, 355 U.S. at 47) [emphasis added]. That statement did not mean that all pleadings may achieve the requirement of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to relief above the speculative level to a plausible level.*fn8

Finally, in reviewing a complaint for dismissal under Fed. R. Civ. P. 12(b)(6), the court must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor. This standard is applied with even greater force where the plaintiff alleges civil rights violations and/or where the complaint is submitted pro se. However, while the special leniency afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form of pleadings (as the Second Circuit has observed),*fn9 it does not completely relieve a pro se plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.*fn10 Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil rights plaintiffs must follow.*fn11 Stated more plainly, when a plaintiff is proceeding pro se, "all normal rules of pleading are not absolutely suspended." Jackson, 549 F. Supp.2d at 214, n.28 [citations omitted].

III. ANALYSIS

A. Motion to Dismiss Filed by the Non-Hillier Defendants

On balance, Plaintiff's Objections of April 17, 2009 to Judge Peebles' Report-Recommendation of May 30, 2009 are specific in nature. (Dkt. No. 68, at 2-8.) As a result, a de novo standard of review is appropriate. See, supra, Part II.A. of this Decision and Order.

After carefully reviewing all of the papers in this action, including Magistrate Judge Peebles' Report-Recommendation of April 30, 2009, and Plaintiff's Objection thereto, the Court concludes that the Report-Recommendation is correct in all respects. Magistrate Judge Peebles employed the proper standards, accurately recited the facts alleged, and properly applied the law to those facts. (See Dkt. No. 67.) As a result, the Court accepts and adopts the Report-Recommendation in its entirety for the reasons stated therein. More specifically, the Court dismisses the following claims asserted by Plaintiff: (1) Plaintiff's claim for violation of 42 U.S.C. § 1983 premised on breach of contract, as well as any state law claim of breach of contract; (2) his claim for deliberate indifference to a serious medical need under the Eighth Amendment; (3) his claim for civil conspiracy; (4) his claim against Defendant B. Winchell alleging that Winchell gave false testimony at a disciplinary hearing; (5) his free-exercise-of-religion claim under the First Amendment; (6) all claims against Defendants McLaughlin and Greene; and (7) all claims against the remaining Defendants in their official capacities.

The Court notes that, under the circumstances, granting Plaintiff leave to amend (before dismissing these claims) is unnecessary for two independent reasons: (1) any such amendment would be futile;*fn12 and (2) Plaintiff was already afforded an opportunity to amend.*fn13

B. Motion to Dismiss Filed by Defendant Hillier

Unlike Plaintiff's Objections of April 17, 2009 to Judge Peebles' Report-Recommendation of May 30, 2009, Plaintiff's Objections of May 18, 2009 to Judge Peebles' Report-Recommendation of April 30, 2009 are general in nature. (Dkt. No. 70, at 2-3.) As a result, a clear-error standard of review is appropriate. See, supra, Part II.A. of this Decision and Order.

After carefully reviewing all of the papers in this action, including Magistrate Judge Peebles' Report-Recommendation, and Plaintiff's objection thereto, the Court concludes that the Report-Recommendation is well-reasoned and not clearly erroneous. As a result, the Court accepts and adopts the Report-Recommendation in its entirety.

The Court notes that Magistrate Judge Peebles' Report-Recommendation would survive a de novo review for the reasons stated therein. (See Dkt. No. 69.) The Court notes also that, under the circumstances, granting Plaintiff leave to amend is unnecessary for the two independent reasons described above in Part III.A. of this Decision and Order.

C. Revocation of In Forma Pauperis Status

Section 1915(g) of Title 28 of the United States Code provides:

In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious physical injury.

28 U.S.C. § 1915(g) [emphasis added]. This section of the PLRA has been referred to as the "three strikes" rule. Welch v. Galie, 207 F.3d 130, 132 (2d Cir. 2000). By enacting this "three strikes" rule, Congress intended to deter prisoners from filing frivolous civil rights suits and appeals. Tafari v. Hues, 473 F.3d 440, 443-44 (2d Cir. 2007); Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997); Gill v. Pidlypchak, 02-CV-1460, 2006 WL 3751340, at *2 (N.D.N.Y. Dec. 19, 2006) (Scullin, J., adopting Report-Recommendation by Treece, M.J.).

It should be noted that the "three strikes" rule does not prevent a prisoner (who has "three strikes" and who is not under imminent danger of serious physical injury) from bringing a civil rights action, but "only affects the prisoner's ability to file the action in forma pauperis." Welch, 207 F.3d at 132. It should also be noted that the power of a federal district court to invoke this "three strikes" rule is not limited to the outset of litigation but extends all throughout the pendency of the proceeding; therefore, a federal district court has the authority to rescind or vacate the in forma pauperis status previously granted if the court discovers that granting in forma pauperis status was improvident. See, e.g., Brown v. Kepiec, 06-CV-1126, 2009 WL 818959, at *2 (N.D.N.Y. Mar. 25, 2009) (Suddaby, J.); Welch v. Charlan, 06-CV-0061, 2008 WL 5382353, at *1 (N.D.N.Y. Dec. 16, 2008) (Suddaby, J.) [citation omitted]; Johnson v. Connolly, 07-CV-0158, 2008 WL 724167, at *7, n.15 (N.D.N.Y. March 17, 2008) (Kahn, J., adopting Report-Recommendation by Lowe, M.J.) [collecting cases].*fn14

1. Calculation of Strikes

After reviewing Plaintiff's litigation history on the Federal Judiciary's Public Access to Court Electronic Records ("PACER") Service, the Court finds that, as of March 23, 2007 (the date on which Plaintiff signed his original Complaint in this action), Plaintiff had acquired at least four "strikes" for purposes of 28 U.S.C. § 1915(g): (1) Green v. Selsky, 97-CV-0956, Order (N.D.N.Y. filed Sept. 30, 1999) (Hurd, J.) (granting defendants' motion to dismiss for failure to state claim pursuant to Fed. R. Civ. P. 12[b][6]); (2) Green v. Selsky, Order, No. 99-0309 (2d Cir. filed Dec. 26, 2000) (denying motion for reinstatement of appeal "because the appeal is subject to dismissal as frivolous"); (3) Green v. Selsky, 97-CV-6325, Order (W.D.N.Y. filed Dec. 2, 1997) (sua sponte dismissing complaint for failure to state claim immediately after filing of complaint, and expressly noting that dismissal is a strike for purposes of 28 U.S.C. § 1915); and (4) Green v. Steltz, 99-CV-5884, Order (S.D.N.Y. filed Apr. 4, 2000) (sua sponte dismissing complaint for failure to state claim pursuant to 28 U.S.C. § 1915 immediately after filing of amended complaint).*fn15

The Court notes that, before Plaintiff filed his original Complaint in this action, the Western District of New York had also concluded that Plaintiff has accumulated at least three strikes for purposes of 28 U.S.C. § 1915(g). See Green v. Morse, 00-CV-6533, 2006 WL 2927871, at *2-3 (W.D.N.Y. Oct. 12, 2006).

Based on this finding, Plaintiff's in forma pauperis status may be properly revoked, and he may be properly required to prepay in full the applicable filing fee in order to pursue his claims in this matter, absent applicability of the imminent danger exception set forth in 28 U.S.C. § 1915(g). See Johnson, 2008 WL 724167, at *7, n.15 [collecting cases].

2. Inapplicability of Imminent Danger Exception

As stated above in Part III.C. of this Decision and Order, 28 U.S.C. § 1915(g) provides that "[i]n no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions . . . brought an action or appeal . . . that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which reliefmay be granted, unless the prisoner is under imminent danger of serious physical injury." 28 U.S.C. § 1915(g). Because 28 U.S.C. § 1915(g) creates an exception for prisoners who are under imminent danger of serious physical injury when they "bring a civil action," the imminent-danger exception applies only when such danger exists at the time the action is brought. See Malik v. McGinnis, 293 F.3d 559, 562-63 (2d Cir. 2002). As the Second Circuit explained in Malik,

We agree with our sister circuits that § 1915(g) allows prisoners to escape the three strikes rule only if 'the prisoner is under imminent danger of serious physical injury.' (emphasis added). Because § 1915(g) uses the present tense in setting forth the imminent danger exception, it is clear from the face of the statute that the danger must exist at the time the complaint is filed. Further, '[b]y using the term 'imminent,' Congress indicated that it wanted to include a safety valve for the 'three strikes' rule to prevent impending harms, not those harms that had already occurred.' Abdul-Akbar [v. McKelvie], 239 F.3d [307] at 315 [3d Cir. 2001]. Accordingly, the language of § 1915(g) makes clear that the 'imminent danger' exception only applies to danger existing at the time the complaint is filed.

Malik, 293 F.3d at 562-63.*fn16 Moreover, "[w]hen determining whether a prisoner has qualified for the 'imminent danger' exception, courts look at the non-conclusory allegations in the plaintiff's complaint." Welch v. Charlan, 06-CV-0061, 2008 WL 5382353, at *1, n.2 (N.D.N.Y. Dec. 16, 2008) (Suddaby, J.).*fn17

Here, Plaintiff's original Complaint was signed, and thus "filed" (pursuant to the prison "mailbox rule"), on March 23, 2007. (Dkt. No. 1, at 8.) Plaintiff's Second Amended Complaint, which superceded and replaced the Complaint, was filed on June 5, 2007. (Dkt. No. 20, at 9.) The Court does not liberally construe the allegations of Plaintiff's Second Amended Complaint as plausibly suggesting any danger of serious physical injury. (See id.) In pertinent part, Plaintiff's Second Amended Complaint alleges as follows: (1) he did not received Dove soap for a "skin disorder" on September 6, 2006; (2) he was subjected to excessive force on October 16, 2006, and November 15, 2006 (causing him to experience "swelling . . . [and] redness on the face and wrist . . . [and a] laceration . . . [and] facial tumor"); (3) he experienced a delay in receiving three "medications" on November 15, 2006 (specifically, "Avandia, Multi-vitamins, [and] Polyearbphil"); (4) he was deprived of keeplock recreation during October and November of 2006; and (5) he did not receive a religious meal on February 26, 2007. (Id.) However, these alleged acts do not rise to the level of a danger of serious physical injury. (Id.)

In any event, even if the Court could liberally construe such a danger, the Court could not construe such danger as being imminent at the time Plaintiff brought this action--on March 23, 2007. See Abdul-Akbar v. McKelvie, 239 F.3d, 307, 315 (3d Cir. 2001) ("By using the term 'imminent', Congress indicated that it wanted to include a safety valve for the 'three strikes' rule to prevent impending harms, not those harms that had already occurred."); McFadden, 16 F.Supp. 2d at 247 (noting that imminent danger must occur at the time the plaintiff seeks to file the suit, and not at the time of the alleged incidents). Simply stated, in this case, there is a temporal disconnect between the rather isolated injuries Plaintiff allegedly experienced from October 2006 through February 26, 2007, and the filing date of the Complaint on March 23, 2006. As one judge of this Court has correctly observed,

[t]he Second Circuit [has] affirmed a district court's finding of no-imminent-danger under circumstances involving an analogous temporal disconnect. See Polanco v. Hopkins, No. 07-1739, 2007 WL 4258724 (2d Cir. Dec. 6, 2007). In Polanco v. Hopkins, the plaintiff alleged that (1) defendants were effectively forcing him to breathe 'black mold' in a prison shower, exacerbating both his AIDS condition and his Hepatitis-B condition, and (2) defendants had deprived him of hygienic items and a proper diet while in the prison SHU, causing him to lose weight. Polanco v. Hopkins, 03-CV-6661, 2007 WL 914023, at *3-5 (W.D.N.Y. March 23, 2007) . . . . With respect to the second claim (regarding his proper hygiene and diet while in SHU), the Western District ruled there was no 'imminent danger' alleged due to a . . . temporal disconnect between the date of the injury (on March 25-27, 2003) and the date of the filing (on December 29, 2003). Id. at *5 & n. 1. On appeal, the Second Circuit agreed, affirming the Western District's ruling. See Polanco v. Hopkins, No. 07-1739, 2007 WL 4258724, at *2 (2d Cir. Dec.6, 2007) ('Nor did the District Court err in determining that Polanco's 'allegations cannot support a determination that he was in imminent danger' of serious physical injury with respect to his claims relating to the health risks associated with his exposure to mold or to his claim of unjust discipline.').

Chavis v. Curlee, 06-CV-0049, 2008 WL 508694, at *8 (N.D.N.Y. Feb. 21, 2008) (Kahn, J., adopting Report-Recommendation by Lowe, M.J.).

For all of these reasons, the Court concludes that the imminent-danger exception does not apply to this case, and that Plaintiff's in forma pauperis application was improvidently granted. As a result, the Court conditionally dismisses the remainder of Plaintiff's Second Amended Complaint unless, within thirty (30) days of this Decision and Order, Plaintiff pays the Court's filing fee of three hundred fifty dollars ($350).*fn18

ACCORDINGLY, it is

ORDERED that Magistrate Judge Peebles' Report-Recommendations of March 30, 2009 and April 30, 2009 (Dkt. Nos. 67, 69) are ACCEPTED and ADOPTED in their entirety; and it is further

ORDERED that the non-Hillier Defendants' motion to dismiss (Dkt. No. 57) is GRANTED in part, and DENIED in part, such that the claims described above in Part III.A. of this Decision and Order are DISMISSED; and it is further

ORDERED that Defendant Hillier's motion to dismiss (Dkt. No. 65) is GRANTED in its entirety such that all claims as to Defendant Hillier are DISMISSED; and it is further

ORDERED that the remainder of Plaintiff's Second Amended Complaint (Dkt. No. 20) is conditionally DISMISSED unless, within THIRTY (30) DAYS of the date of this Decision and Order, Plaintiff pays the Court's filing fee of THREE HUNDRED FIFTY DOLLARS ($350); and it is further

ORDERED that, in the event that Plaintiff fails to pay the Court's filing fee of three hundred fifty dollars ($350), the remainder of his Second Amended Complaint will be dismissed without further Order of this Court.


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