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Lombardo v. Freebern

United States District Court, S.D. New York

March 30, 2018


          Scott Lombardo New Hampton, NY Pro Se Plaintiff

          Gillian B. Lepore, Esq. New York Office of the Attorney General New York, NY Counsel for Defendants

          OPINION & ORDER


         Pro se Plaintiff Scott Lombardo (“Plaintiff”) filed the instant Complaint, pursuant to 42 U.S.C. § 1983, against Joseph Freebern, Executive Director of Mid-Hudson Forensic Psychiatric Center (“Freebern”); Mark Schaarschmidt, Head Chaplain, Mid-Hudson Forensic Psychiatric Center (“Schaarschmidt”); Edwin Garcia, Security Hospital Treatment Assistant (“SHTA”), Mid-Hudson Forensic Psychiatric Center (“Garcia”); Eunice Acero, Head of the Kitchen, Mid-Hudson Forensic Psychiatric Center (“Acero”); Tina Rivera, Head Cook and Supervisor, Mid-Hudson Forensic Psychiatric Center (“Rivera”); Nadine Leonte, Social Worker, Mid-Hudson Forensic Psychiatric Center (“Leonte”); Suzanne Gladitsch, New York State Office of Mental Health (“OMH”) (“Gladitsch”); Christina Petito-Thorn, Supervisor SHTA, Mid-Hudson Forensic Psychiatric Center (“Petito-Thorn”); Christian Anyene, Social Worker, Mid-Hudson Forensic Psychiatric Center (“Anyene”); Lisa Rodriguez, Senior SHTA, Mid-Hudson Forensic Psychiatric Center (“Rodriguez”); Shrayas Baxi, Psychiatrist, Mid-Hudson Forensic Psychiatric Center (“Baxi”); Shonlonda Rollins, SHTA, Mid-Hudson Forensic Psychiatric Center (“Rollins”); Mr. Flores, Senior SHTA, Mid-Hudson Forensic Psychiatric Center (“Flores”) (collectively, “Defendants”). (See Compl. (Dkt. No. 2).)[1] Plaintiff alleges that Defendants violated his rights under the First, Eighth, and Fourteenth Amendments to the United States Constitution, and New York State Mental Hygiene Law § 33.02, when they denied him grape juice for the Sabbath, access to various religious books and articles, and the right to attend one Passover service. (See Id. at 1.)

         Before the Court is Defendants' Motion To Dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6), (the “Motion”). (See Notice of Mot. To Dismiss (Dkt. No. 37); Mem. of Law in Supp. of Defs.' Mot. To Dismiss (“Defs.' Mem.”) (Dkt. No. 38).) For the following reasons, Defendants' Motion is granted.

         I. Background

         A. Factual Background

         The following facts are taken from the Complaint and are accepted as true for the purposes of this Motion. At the time of the events described herein, Plaintiff was a patient at Mid-Hudson Forensic Psychiatric Center (“MHFPC”), (see Compl. 1), “a secure New York State facility that provides comprehensive evaluation, treatment, and rehabilitation, pursuant to court order, for offenders who have been found not guilty by reason of mental defect or incompetent to stand trial.” Lombardo v. Holanchock, No. 07-CV-8674, 2008 WL 2543573, at *1 (S.D.N.Y. June 25, 2008). Plaintiff is committed at MHFPC pursuant to New York Criminal Procedure Law (“CPL”) § 330.20, which provides for commitment of an individual adjudicated “not responsible” for criminal conduct “by reason of mental disease or defect.” N.Y. Crim. Proc. Law § 330.20. (See Compl. ¶ 11 (describing Plaintiff as a “CPL § 330.20 patient”).)

         Plaintiff allegedly arrived at MHFPC on January 4, 2001, and was placed on “ward 33/34.” (Compl. ¶ 1.) Upon arrival, “[Plaintiff] spoke with Rabbi Joel Schwab, who is the Jewish Chaplain at MHFPC and with the treatment team . . . regarding preparations for fulfilling Plaintiff's religious needs.” (Id.) These needs “included a space to pray privately, safe storage for [Plaintiff's] Tifillin and prayer shawl, access to [Plaintiff's] hard cover Tanach (bible) and Siddur (prayer book), and grape juice which is provided by the kitchen on Friday and Saturday at lunch time to begin and end the Sabbath.” (Id.)[2]

         1. Access to Grape Juice

         Around August 2014, “Plaintiff stopped receiving grape juice at lunch on Fridays and Saturdays.” (Id. ¶ 2.) Instead, he received cranberry juice. (Id.) Plaintiff spoke to Rivera, who told him “that MHFPC switched food vendors.” (Id. ¶ 3.) “Plaintiff said that cranberry juice wasn't a suitable substitute, ” and Rivera told him “to take what we have.” (Id.) Plaintiff then spoke to Acero about the lack of grape juice, “but the results were the same as with . . . Rivera.” (Id. ¶ 4.) On December 12, 2014, Plaintiff sent a letter to The Aleph Institute, “an organization that caters to and troubleshoots for Jews in [p]rison and the military, ” (id. ¶ 5 n.8), with “copies to Rabbi Schwab, Defendant Joseph Freebern, and the Mental Hygiene Legal Service, ” (id. ¶ 5). In the letter, Plaintiff wrote that his “facility switched food vendors to save money and conform to other facilities' menus within [OMH], ” and his dietician told him “that due to budget constraints, [his] grape juice was being stopped.” (Pl.'s Mem. Law in Opp. to. Defs.' Mot. To. Dismiss (“Pl.'s Mem.”) Ex. 2 (“Letter to Aleph Institute”) (Dkt. No. 43).) According to Plaintiff, “[t]he grape juice still didn't come.” (Id. ¶ 5.) On February 26, 2015, Plaintiff called OMH Customer Relations, a “troubleshooter organization sponsored by N.Y. State, ” (id. ¶ 6 n.9), “and left a message complaining about the grape juice situation, ” (id. ¶ 6). Plaintiff received a letter from Gladitsch, dated February 27, 2015, acknowledging Plaintiff's February 26, 2015 message, indicating she was “only forwarding Plaintiff's concern, and the response letter to MHFPC's Clinical Director.” (Id. ¶ 7.) “On April 24, 2015, Plaintiff called the MHFPC in-house complaint line and expressed that he was still not getting his grape juice for religious purposes.” (Id. ¶ 8.) Plaintiff also alleges he “made three previous phone calls to the in-house complaint line regarding the grape juice, but there was no response or positive results.” (Id. ¶ 8 n.11.) However, “Plaintiff didn't log the time and dates of the three previous calls.” (Id.) On May 1, 2015, Elizabeth Massey, a social worker, interviewed Plaintiff about “the status of the grape juice.” (Id. ¶ 9.) On the evening of April 24 and April 25, 2015, Plaintiff had received grape juice, but for other Sabbaths before and up until the date of writing the Complaint “there ha[d] been times when no grape juice or even cranberry juice was given to him.” (Id.) Plaintiff received a letter from Jane McDonald, the “Director of Risk [M]anagement, ” dated May 20, 2015, “stating that he was satisfied with the action taken.”[3] (Id. ¶ 10.)

         2. Access to Religious Items

         “On October 22, 2015, Plaintiff was transferred from ‘ward 33/34' to ‘ward 31/32' because of alleged threats.” (Id. ¶ 11.)[4] According to Plaintiff “[w]ard 31/32 is primarily a CPL §[ ]730 ward, and besides one other patient, Plaintiff [was] the only CPL[ ]§ 330.20 patient on ward 31/32.”[5] (Id.) “On Saturday, October 24, 2015 . . . Thorn saw Plaintiff reading his Tanach, which is a hard covered book, and ordered SHTA staff to confiscate Plaintiff's Tanach and two Siddurs, all of which are hard covered, and [his] Tifillin and prayer shawl.” (Id. ¶ 12.) “Thorn didn't give Plaintiff options as to when or where” he could access the religious articles. (Id.) Plaintiff met with the “31/32 treatment team” on October 27, 2015, and Ken Miller, “[t]he treatment team leader . . . said the decision to obtain [Plaintiff's] religious items [was] up to the 33/34 treatment team to decide.” (Id. ¶ 13.) Plaintiff met with the “33/34 treatment team” on October 28, 2015, and “Plaintiff asked if he could have possession of his religious books.” (Id. ¶ 14.) Dr. Baxi told Plaintiff “to ask the Senior SHTA” to which Plaintiff responded that “the Senior SHTA said he ha[d] to speak with the 33/34 treatment team.” (Id.) “On October 30, 2015, Plaintiff was visited by Rabbi Joel Schwab, who gave [P]aintiff a soft-covered prayer book which is used in the MHFPC Jewish Services.” (Id. ¶ 15.) Plaintiff alleges that “[t]he book is very basic and is missing prayers that Plaintiff is accustomed to saying.” (Id.) Rabbi Schwab told Plaintiff that he spoke to “Freebern about Plaintiff having access to his Tifillin.” (Id.) “On November 3, 2015, Zelma Armstrong [(“Armstrong”)], who is the ward 33/34 Treatment Team Leader (“TTL”), interviewed Plaintiff regarding the particulars as to time and place that he should have access to his Tifillin and prayer shawl.” (Id. ¶ 16.)

         Plaintiff was transferred back to ward 33/34 on November 9, 2015. (Id. ¶ 18.) Plaintiff asked Armstrong if he could get his Tanach and Siddurs back on November 12, 2015. (Id. ¶ 19.) She responded “that ward 33/34 was transitioning, and that hard covered books would be contraband.” (Id.) “Armstrong gave Plaintiff permission to go to Jewish Services, ” (id.), which he had missed “on October 23, October 30, and November 6, 2015, ” (id. ¶ 19 n.17.) On November 16, 2015, Plaintiff again “asked the treatment team when he could get his Tifillin, Siddurs, and Tanach back, ” but Dr. Baxi told Plaintiff that he “ha[d] to get off Close Observation status first.” (Id. ¶ 20.) “On November 21, 2015, Plaintiff was taken off Close Observation status, ” but “was denied his religious items back” and was told by an unknown team member “he'd get one thing at a time.” (Id. ¶ 21.) “On December 2, 2015, Plaintiff was able to keep [the] Tifillin and prayer shawl behind ‘the desk, '” but “Plaintiff [was] still using the prayer book given to him by Rabbi Schwab on October 30[, 2015].” (Id. ¶ 23.) Plaintiff alleges “[h]owever, up to this point since Tifillin is approved, Plaintiff [did not have] access to it because a senior SHTA wasn't available.” (Id.) On December 11, 2015, Armstrong brought “a manila envelope with Plaintiff's Tifillin and prayer shawl onto the ward, which was kept in a cabinet behind the SHTA desk.” (Id. ¶ 25.) Plaintiff alleges he had been without these articles since October 24, 2014, for a total of 48 days. (Id.)

         “On February 15, 2016, Plaintiff wrote a letter to Defendant Joseph Freebern regarding the religious books which were confiscated.” (Id. ¶ 26.) Plaintiff's letter requested that the confiscated books be replaced with books without hard covers, and provided a list of the books he needed and the place where they could be purchased. (Pl.'s Mem. Ex 3 (“Feb. 15, 2016 Freebern Letter”).) On February 23, 2016, Plaintiff met with the treatment team and discussed the February 15, 2016 letter he sent to Freebern. (Compl. ¶ 27.) The treatment team told Plaintiff that he would not have access to the religious books that were confiscated. (Id.) On April 1, 2016. Plaintiff told Freebern that he “still didn't get access to his religious books” and Freebern told Plaintiff “he'd take care of it.” (Id. ¶ 28.) “On April 6, 2016, Senior SHTA Andrea Heinzel told Plaintiff that his religious books [were] safe in her office.” (Id. ¶ 29.) In response to a request from Anyene, Plaintiff “typed a schedule of when he[] expect[ed] to use the religious books.” (Id. ¶ 30.) On Friday, April 15, 2016, Plaintiff and Anyene discussed that Plaintiff would need the books 18 minutes before sundown to begin the Sabbath, which began at 7:20 p.m. (Id. ¶ 31.) Accordingly, at 7:00 p.m., Plaintiff requested his books, but he never received them. (Id.) Then, “[o]n [Saturday, ] April 16, 2016 at 2:20 p.m., Senior SHTA Heinzel brought Plaintiff's books to the ward, but said he couldn't access them until Monday, [April 18, 2016].” (Id. ¶ 32.) “On April 18, 2016, at 7:05 a.m., Plaintiff gained access to his daily Siddur.” (Id. ¶ 33.) Plaintiff alleges he had no access to the Siddur from October 24, 2015 until April 18, 2016, for a total of 178 days. During this same period, “Plaintiff had no access to his Tanach on 43 occasions.” (Id.)

         3. Access to Rabbi Schwab

         On November 6, 2015, Plaintiff received a visit from Rabbi Schwab while “Plaintiff was in the back of the room where therapy groups were held in building 45.” (Id. ¶ 17.) “Leonte called Rabbi Schwab out to the hallway.” Plaintiff observed them “talk[ing] for a moment” and “Rabbi Schwab left without seeing Plaintiff or any explanation.” (Id.) Leonte told Plaintiff “[t]his is group time.” (Id.)

         4. Defective Hanukkah Menorah

         Flores brought a Hanukkah menorah to the ward on December 8, 2015. (Id. ¶ 24.) Plaintiff contends that “[t]he first candle was supposed to be lit at 5:15 p.m. on Sunday, December 6[, 2015].” (Id.) According to Plaintiff “[t]he [m]enorah is the type that has a blue bulb that one must screw in every night.” (Id.) The menorah had one missing bulb, and “two bulbs were burnt out.” (Id.) Plaintiff suggests he was concerned whether “the [m]enorah was safe to use and safe to be brought in the ward.” (Pl.'s Mem. 4.) Unlike previous years, where the [m]enorah “ran on batteries, ” this version had an “electric cord, which is dangerous.” (Id. ¶ 4 n.4.) Plaintiff argues that Flores had a duty “to make sure that not only is the [m]enorah in properly working order, but also that it is safe for institutional use.” (Id.) “Plaintiff called the MHFPC [i]n-[h]ouse complaint line, but no action was taken.” (Compl. ¶ 24.)

         5. Access to Religious Services

         “On November 24, 2015, Plaintiff asked the treatment team if he could go to the Thanksgiving service run by Reverend Hunt.” (Id. ¶ 22.) Dr. Baxi informed Plaintiff that “he could get privileges after the holidays.” (Id.)

         “[T]he MHFPC facility wide Passover Seder” was scheduled at 9:45 a.m. on Thursday, April 21, 2016. (Id. ¶ 34.) Plaintiff alleges that the Passover Seder “is the most important event of the Jewish Year.” (Id.) According to Plaintiff, “Passover is the pinnacle of the reason Jews exist today.” (Pl.'s Mem. 3.) That day, “Plaintiff was awake and dressed when the day shift came onto the ward.” (Compl. ¶ 35.) “Shortly after 7:00 a.m., Plaintiff asked SHTA Michael Marlow if he could get a shave, ” explaining that that day “was the Seder and Plaintiff wanted to look presentable.” (Id. ¶ 36.) Thursday and Sunday are designated shave days on ward 33/34, and shaves typically occur sometime after 10:00 a.m. (Id. ¶¶ 35 & 36 n.23.) “Marlow denied Plaintiff, stating that he can't supervise Plaintiff to shave.” (Id.) Plaintiff then asked Garcia if he could shave at around 7:30 a.m., “explaining the situation with the Seder and that he asked SHTA Marlow earlier.” (Id. ¶ 37.) Garcia told Plaintiff he couldn't “go against his coworker.” (Id.) “At 7:50 a.m., Plaintiff refused his medication until he shaved” and told the nurse “so that he c[ould] speak to the treatment team.” (Id. ¶ 38.)

         “At 9:15 a.m., Plaintiff signed up for the Passover Seder and for a shave, ” intending to go to both activities. (Id. ¶ 39 & n.25.) Plaintiff alleges that “[a]t 9:22 a.m. . . . Armstrong came out to the dayroom and went behind the SHTA desk and announced the following: 1) let [Plaintiff] shave, 2) let [Plaintiff] take his medication, and 3) let [Plaintiff] go to the Seder.” (Id. ¶ 40.) “Armstrong stipulated that if Plaintiff didn't take his medication, then he'd be refused the Seder.” (Id.) After Armstrong left, “Rollins announced that she doesn't take orders from the TTL, but from her supervisor, who is . . . Rodriguez.” (Id. ¶ 41.) “At 9:28 a.m. . . . Garcia said Plaintiff threatened him, and that Plaintiff was going to get an ‘X.'” (Id. ¶ 42.) According to Plaintiff, “[a]n ‘X' is a loss of privileges [from] of the current level [of privileges] that a person is on.” (Id. ¶ 42 n.26.) “There are three levels of privileges[:] entry, silver, and gold levels.” (Id.) Plaintiff was given his normal medication at around 9:35 a.m. (Id. ¶ 43.)

         “At 9:43 a.m. SHTA James Wallace came to ward 33/34 to pick up the patients to transport them to the Seder.” (Id. ¶ 44.) Rodriguez “closed and locked the door to the dayroom and stated that Plaintiff was too agitated to go to the Seder.” (Id.) Later that afternoon, “Plaintiff spoke with . . . Freebern's secretary, explaining that Plaintiff was denied the facility wide Seder.” (Id. ¶ 46.) Plaintiff also “explained that in addition to the Seder, he has his own private Seder every year at the time of the actual Seder, ” which was Friday, April 22, 2016 at 7:25 p.m. (Id.) Plaintiff told Freebern's secretary that he “always g[o]t supplies at the MHFPC Seder” to use at his Seder, “including a box of Matzoh, horse radish (bitter herbs), charoset (represents mortar for bricks), and celery.” (Id.) “Plaintiff already had [some] supplies that he purchased from The Aleph Institute including kosher for Passover Matzoh, grape juice, macaroons, and gevilte fish.” (Id.) Plaintiff does not know “if the secretary gave the message to . . . Freebern, but Plaintiff never got the supplies requested.” (Id. ¶ 46 n.28.) Plaintiff also sent a letter to Freebern regarding “the Seder issue, but Plaintiff never got an answer.” (Id. ¶ 47.)

         “On Saturday, July 9, 2016, SHTA staff announced that the feast of ‘Eid Ul Fitr' was being held in the dining room that morning, ” and Plaintiff inquired about going to the feast. (Id. ¶ 48.) “Plaintiff was told that it was by invitation only and that only Muslim patients were invited.” (Id.) “Plaintiff didn't want to go to the feast, but only inquired if he could.” (Id. ¶ 48 n.29.) Plaintiff also notes that “any patient can go to the Passover Seder, and some . . . who go never attended a Jewish Service all year long.” (Id.) On August 1, 2016, “Plaintiff sent a letter to . . . Freebern, with a copy to . . . Schaarschmidt . . . explaining the feasts (both Muslim and Jewish) and the Department of Corrections [(“DOCS”)] protocol, ” outlined in DOCS Directive 4202. (Id. ¶ 49.) At the time he wrote the Complaint, “Plaintiff ha[d]n't gotten a response from either [D]efendant.” (Id.)

         6. Plaintiff's Medication Increase

         Plaintiff alleges that following the incident regarding his attendance of the Passover Service, “[a]t 9:45 a.m., Plaintiff was called into the Conference Room for a treatment team meeting” where Dr. Baxi announced that starting that evening “Plaintiff's medication will be increased by adding 5mg Zyprexa.” (Id. ¶ 45.) Plaintiff alleges that “Dr. Baxi took Plaintiff to Orange County Supreme Court on November 15, 2015 for a Medication Over Objection hearing, which Dr. Baxi won.” (Pl.'s Mem. 9.)[6] The course of medicine approved “included Lithium, which is a mood-stabilizer, valproic acid, Olanzapine (Zyprexa), which is an anti-psychotic, and Haldol, which is also an anti-psychotic.” (Id.) Plaintiff alleges he “has never been diagnosed as psychotic.” (Id.) Plaintiff also argues that he “told Dr. Baxi of the long term side-effect of diabetes” from Zyprexa, but “Dr. Baxi was using the medication as punishment and was being reckless in the dispensing of Zyprexa even with the knowledge of its side-effects.” (Id.) Plaintiff was concerned about the “long-term side effects of Zyprexa” because “Plaintiff's father's side of the family all has diabetes.” (Id. at 9 n.6.) Additionally, “Haldol when mixed with Lithium can cause irreversible brain damage.” (Id. at 9 n.5).

         7. Plaintiff's Claims

         Plaintiff brings fifteen causes of action against thirteen defendants. (Compl. 11-13.)[7]The First and Second Causes of Action involve Plaintiff's alleged lack of access to grape juice for the Sabbath, and include claims under the First and Fourteenth Amendments and Mental Hygiene Law § 33.02 against Rivera, Acero, Gladitsch, and Freebern. (Id. at 11.) The Third, Fourth, Seventh, Eighth, and Ninth Causes of Action involve alleged denial of access to Plaintiff's religious books and articles, and include claims under the First, Eighth, and Fourteenth Amendments and Mental Hygiene Law § 33.02 against Thorn, Dr. Baxi, Freebern, and Anyene. (Id. at 11-12.) The Fifth and Sixth Causes of Action involve Plaintiff's alleged lack of access to his spiritual advisor, and include claims under the First, Eighth, and Fourteenth Amendments and Mental Hygiene Law § 33.02 against Leonte. (Id.) The Tenth and Twelfth Causes of Action involve the alleged exclusion of Plaintiff from the Passover Seder, and include claims under the First, Eighth, and Fourteenth Amendments and Mental Hygiene Law § 33.02 against Rollins and Rodriguez. (Id. at 12-13.) The Tenth Cause of Action also involves the alleged denial of access to medication and shaving, and includes claims under the First, Eighth, and Fourteenth Amendments and Mental Hygiene Law § 33.02 against Rollins. (Id. at 12.) The Eleventh Cause of Action involves Plaintiff's alleged receipt of an “X” and denial of privileges, and includes claims under the Eighth and Fourteenth Amendments and Mental Hygiene Law § 33.02 against Garcia. (Id.) The Thirteenth Cause of Action involves the allegedly defective and untimely delivery of the Hanukkah menorah, and includes claims under the First, Eighth, and Fourteenth Amendments and Mental Hygiene Law § 33.02 against Flores. (Id. at 13.) The Fourteenth Cause of Action involves Plaintiff's alleged unjustified medication increase, and includes claims under the Eighth and Fourteenth Amendments and Mental Hygiene Law § 33.02 against Dr. Baxi. (Id.) The Fifteenth Causes of Action involves the alleged violation of Plaintiff's right to practice religion, and includes claims under the First and Fourteenth Amendments and Mental Hygiene Law § 33.02 against Freebern and Schaarschmidt. (Id.)

         Plaintiff requests compensatory damages of $276, 000 and punitive damages of $13, 000, 000, or $1, 000, 000 per Defendant.[8] (Id. at 14.) Plaintiff also requests: (1) “an [i]njunction that all patients at MHFPC choose a religious service, and can't cross over to other services unless the service is an All-Faith service, or unless the patient appeals to the head chaplain to change faiths, ” in “accordance with DOCS Directive 4202;” (2) “an [i]njunction that if any patient is denied any religious service, that a full report [be issued] as to why and who authorized, and the justification of the denial of service;” (3) “an [i]njunction that if patients have special ritualistic religious items, such as Tifillin, etc. or books, regardless of hard-cover or soft-bound, that a safe place be made for articles and books, and access be granted as needed for said items;” and (4) “an [i]njunction that all special holiday items, such as Hanukkah [m]enorah or Christmas [t]ree, be inspected annually, or as needed per use, before and after each use, and that a replacement in good working condition be promptly made.” (Compl. 13-14 & n.30.)

         B. Procedural Background

         Plaintiff filed the instant Complaint on September 12, 2016. (See id.) That same day, Plaintiff requested to proceed in forma pauperis, (Dkt. No. 1), which the Court granted on November 29, 2016, (Dkt. No. 3). On December 12, 2016, the Court issued an Order of Service allowing Plaintiff to effect service on Defendants through the U.S. Marshals Service. (Dkt. No. 5.) On December 27, 2016, Plaintiff wrote the Court requesting the Order of Service include Petito-Thorn. (Dkt. No. 6.) On December 30, 2016, the Court issued an Amended Order of Service that included Petito-Thorn. (Dkt. No. 7.) On February 15, 2017, Plaintiff filed an application for the Court to request pro bono counsel. (Dkt. No. 20.) The Court denied Plaintiff's application without prejudice on March 9, 2017. (Dkt. No. 25.)

         The Court scheduled a Rule 16 conference on April 5, 2017. (Dkt. No. 26.) Defendants requested adjournment of the conference, because they intended to file a letter requesting a premotion conference for a proposed motion to dismiss. (Dkt. No. 27.) The Court granted the request. (Dkt. No. 29.)

         On April 13, 2017, Defendants filed a letter seeking leave to file a Motion To Dismiss and requesting premotion conference. (Dkt. No. 31.) On April 24, 2017, Plaintiff filed a letter in opposition. (Dkt. No. 33.) The Court concluded that briefing on the Motion To Dismiss was appropriate, and set a briefing schedule. (Dkt. No. 34.)[9]

         On June 6, 2017, Defendants filed their Motion To Dismiss and accompanying Memorandum of Law. (Dkt. No. 37; Defs.' Mem.) On July 7, 2017, Plaintiff filed a Memorandum of Law in Opposition to Defendants' Motion and accompanying exhibits. (Pl.'s Mem.)[10] On July 21, 2017, Defendants filed their Reply Memorandum of Law. (Defs.' Reply Mem. of Law in Supp. of Mot. To. Dismiss (“Defs.' Reply Mem.”) (Dkt. No. 46).)

         II. Discussion

         A. ...

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