United States District Court, E.D. Pennsylvania
May 19, 2004.
JOSE MEDINA, Plaintiff
CITY OF PHILADELPHIA, et al., Defendants
The opinion of the court was delivered by: BERLE M. SCHILLER, District Judge
MEMORANDUM AND ORDER
Plaintiff Jose Medina commenced this civil rights action under
42 U.S.C. § 1983 against the City of Philadelphia, Warden Reginald
Hammond, Deputy Warden Marco Giannetta, Sergeant George McNally,
Corrections Officer Augustine Arroyo and Corrections Officer Joseph
Moore.*fn1 In his complaint, Plaintiff alleges that while he was
incarcerated at the Curran-Fromhold Correctional Facility ("CFCF"),
Defendants searched his cell and unlawfully confiscated his manuscript
and read his mail in violation of the First and Fourteenth Amendments to
the United States Constitution and the prison's mail policy. Presently
before the Court is Defendants' motion for summary judgment pursuant to
Federal Rule of Civil Procedure 56(c).*fn2 For the reasons set forth
below, Defendants' motion is granted. I. FACTUAL BACKGROUND
At all times relevant to this action, Plaintiff was incarcerated at
CFCF. Before he was incarcerated, Plaintiff had been working on a
manuscript about the Latin Kings, a group formed in Chicago in 1949.
(Pl.'s Dep. at 16, 44.) Although the Latin Kings are commonly referred to
as a "gang," Plaintiff claims it is "an organization, people who just
work together to help people." (Id. at 49.) Because Plaintiff is
not a member of the Latin Kings, he gathered information for his book
through interviews with current members before he was incarcerated.
(Id. at 48.)
When he entered CFCF, Plaintiff asked his mother to send him the
manuscript so that he could continue working on it while incarcerated.
(Id. at 16.) On February 27, 2003, shortly after Plaintiff
received the manuscript in the mail, Defendants McNally and Arroyo came
to his cell and informed him that they were going to search for
cigarettes. (Id. at 20.) Arroyo picked up a pack of mail within
Plaintiff's cell and began looking through the letters. (Id.)
Arroyo then pulled out a yellow envelope marked "legal mail"*fn3 which
contained Plaintiff's writings and said, "Here it is," to McNally.
(Id. at 20-21, 24.) Plaintiff asked why the officers were taking
his mail and they informed him that it violated prison policy.
(Id. at 21.)
Approximately eight months later, on October 1, 2003, Defendants
McNally and Moore confiscated a second manuscript from Plaintiff's cell.
(Id. at 40.) This second manuscript was confiscated pursuant to
a "major shakedown."*fn4 (Id.) Plaintiff stated that this
second set of materials was to become part of the same book as the first manuscript
(Id. at 40-41.) After this lawsuit was filed, Plaintiff alleges
that he suffered various forms of retaliation, including being relieved
of his job and being denied access to the law library and school
facilities. (Id. at 71.)
II. STANDARD OF REVIEW
Summary judgment is appropriate when the admissible evidence fails to
demonstrate a dispute of material fact and the moving party is entitled
to judgment as a matter of law. FED. R. CIV. P. 56(c) (1994);Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). When the moving
party does not bear the burden of persuasion at trial, the moving party
may meet its burden on summary judgment by showing that the nonmoving
party's evidence is insufficient to carry its burden of persuasion at
trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Thereafter, the nonmoving party demonstrates a genuine issue of material
fact if sufficient evidence is provided to allow a reasonable jury to
find for him at trial. Anderson, 477 U.S. at 248. In order to
meet this burden, the opposing party must point to specific, affirmative
evidence in the record and not simply rely on mere allegations,
conclusory or vague statements, or general denials in the pleadings.
Celotex, 477 U.S. at 324. In reviewing the record, "a court must
view the facts in the light most favorable to the nonmoving party and
draw all inferences in that party's favor." Armbruster v. Unisys
Corp., 32 F.3d 768, 777 (3d Cir. 1994). Furthermore, a court may not
make credibility determinations or weigh the evidence in making its
determination. See Reeves v. Sanderson Plumbing Prods.,
530 U.S. 133, 150 (2000); see also Goodman v. Pa. Tpk. Comm'n,
293 F.3d 655, 665 (3d Cir. 2002). III. DISCUSSION
Plaintiff brings his claims for constitutional violations pursuant to
42 U.S.C. § 1983, which requires him to demonstrate that a person
acting under color of state law deprived him of a federal right.
Gorman v. Township of Manalapan, 47 F.3d 628, 633 (3d Cir.
1995). Defendants do not dispute that they are state actors for purposes
of § 1983. The issue, therefore, is whether Defendants' conduct
violated Plaintiff's constitutional rights.
A. Claims Against Defendants in their Individual Capacities
Plaintiff brings claims against Defendants Hammond, Giannetta, McNally,
Arroyo, and Moore in their individual capacities. Claims against
government officials in their individual capacities seek to impose
personal liability upon a government officer for actions taken under
color of state law. Hafer v. Melo, 502 U.S. 21, 25 (1991). Thus,
to establish individual liability in a § 1983 action, a plaintiff
must "show that the official, acting under color of state law, caused the
deprivation of a federal right." Id. As the Third Circuit has
made clear, "[a] defendant in a civil rights action must have personal
involvement in the alleged wrongs" to be held liable. Sutton v.
Rasheed, 323 F.3d 236, 249 (3d Cir. 2003) (quoting Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988)). Personal
involvement can be shown through allegations of personal direction or of
actual knowledge and acquiescence. Rode, 845 F.2d at 1207.
Although Hammond and Giannetta were sued in their individual
capacities, Plaintiff has failed to produce any evidence that either of
these Defendants were personally involved in the alleged wrongs. In his
response to Defendants' motion for summary judgment, Plaintiff fails to
differentiate between the claims against these Defendants in their
official and individual capacities, subsuming all discussion of these
Defendants under the heading "Monell Claim." In his discussion of this
claim, Plaintiff fails to present any evidence that either Hammond or
Giannetta were personally involved in the censorship or reading of his
mail, the confiscation of his manuscripts, or any alleged retaliatory
behavior. Furthermore, Plaintiff fails to provide record evidence that
either Hammond or Giannetta were actually aware of the events at issue.
See id. at 1208 (noting that mere filing of grievances or
complaints with official's office is not enough to show actual
knowledge). Plaintiff notes only that these Defendants "were responsible
for running the prison." (Pl.'s Resp. at 20.) As respondeat superior is
not a basis for liability under § 1983, Mabine v. Vaughn,
25 F. Supp.2d 587, 592 (E.D. Pa. 1998), and in the absence of any other
basis for liability, Plaintiff's claims against Defendants Hammond and
Giannetta in their individual capacities are dismissed from this suit.
Accordingly, the remainder of the Court's analysis of the
individual-capacity claims relates only to Defendants McNally, Arroyo,
1. Confiscation of Manuscript in Violation of First
Plaintiff alleges that Defendants McNally, Arroyo, and Moore
confiscated his Latin Kings manuscript in violation of his First
Amendment rights. Defendants move for summary judgment arguing that
Plaintiff's manuscripts were confiscated pursuant to a legitimate
"[A] prison inmate retains those First Amendment rights that are not
inconsistent with his status as a prisoner or with the legitimate
penological objectives of the corrections system." Pell v.
Procunier, 417 U.S. 817, 822 (1974). In Turner v. Safley,
the Supreme Court articulated four factors that should be considered in
determining the constitutionality of a prison's restrictions on free
speech: (1) whether a valid, rational connection exists between the
regulation and the government interest it protects; (2) whether prisoners
have alternative means of exercising the protected right; (3) the impact
of accommodating the right on other inmates, guards, and the allocation
of prison resources generally; and (4) whether alternatives exist that fully
accommodate the prisoner's rights at de minimis cost to valid penological
interests. Turner v. Safley, 482 U.S. 78, 89-90 (1987);
Fraise v. Terhune, 283 F.3d 506, 513-14 (3d Cir. 2002).
In conducting the Turner analysis, courts must remain
cognizant that "[t]he judiciary is `ill-equipped to deal with the . . .
problems of prison administration' . . . and should therefore give
significant deference to judgments made by prison officials in
establishing, interpreting, and applying prison regulations."
Fraise, 283 F.3d at 515 (quoting Turner, 482 U.S. at
84). Such deference, however, does not amount to an abdication of the
court's responsibility to protect the constitutional rights of prisoners.
"When a prison regulation or practice offends a fundamental
constitutional guarantee, federal courts will discharge their duty to
protect constitutional rights." Procunier v. Martinez,
416 U.S. 396, 405-06 (1974); see also Turner, 482 U.S. at 84 ("Prison
walls do not form a barrier separating prison inmates from the
protections of the Constitution.").
Defendants' brief offers less than one page of text applying the first
three Turner factors to the facts of this case and fails to
address the fourth factor at all. (Defs.' Mot. for Summ. J. at 12.) In
discussing the first factor, Defendants state that the government has an
interest in prohibiting "gang-related materials" in CFCF "for the obvious
reason that they pose a threat to the safety and security of the
institution," (id.), and attach the affidavit of Dofredo
Pieretti, the Security Threat Group Coordinator for the Philadelphia
Prison System ("PPS"), who opines that the confiscated manucripts
constitute "recruitment" materials that pose a threat to prison security
because they "promote the continuance of membership in a group that has
been recognized by Law Enforcement agencies as a threat, in and out of
the prison walls." (Pieretti Aff. at ¶¶ 29, 31). Plaintiff counters
that although the manuscript is about the Latin Kings, it is not
"gang-related" in the sense of posing a threat to prison security, especially as it remains within the
confines of his cell. Similarly, Plaintiff testified that he is not a
member of the Latin Kings and is writing this manuscript on the history
of the Latin Kings for eventual publication, rather than for recruitment
purposes. (Pl.'s Dep. at 16, 25, 49-50.) Furthermore, Plaintiff received
information for the book from interviews with current members of the
Latin Kings, none of whom were incarcerated at the time of the interview.
(Id. at 39, 49.) Therefore, viewing the facts in the light most
favorable to the Plaintiff, the Court is unable to conclude from
Pieretti's vague opinions that the manuscripts constituted "gang-related"
material and threatened security within the prison.
Because Plaintiff has not been generally prohibited from receiving mail
or writing manuscripts, there is no dispute regarding whether Plaintiff
has alternative means of exercising this protected right under the second
Turner factor. Fraise, 283 F.3d at 518 (noting that
analysis of the second prong must examine inmate's ability to exercise of
the right "generally . . . not whether [the] inmate has alternative means
of engaging in [any] particular practice"). In support of the third
factor, Defendants assert only that "[i]f the PPS were to allow written
gang-related material to float freely around the prisons, it arguably
would have a deleterious impact on other inmates, guards, and the
allocation of prison resources." (Defs.' Mot. for Summ. J. at 12.)
Nothing in the record, however, suggests that Plaintiff was conducting
recruiting activities within the prison, distributing these materials
outside of his cell, or even showing them to anyone. Rather, Plaintiff
testified that he did not want anyone to see the manuscript because he
thought that would inhibit its eventual publication. (Pl.'s Dep. at 25.)
Moreover, Defendant McNally admitted that the material contained nothing
that would incite the prison population to commit violence against other
prisoners. (McNally Dep. at 56.) Therefore, the evidence in the record
does not support the conclusion that accommodation of Plaintiff's right
would negatively impact guards, other inmates, and prison resources
Finally, Defendants' failure to address the fourth Turner
factor is particularly noteworthy, given that the danger Defendants
ascribe to Plaintiff's writings could arguably be eliminated as long as
Plaintiff keeps the writings in his cell. See Abu-Jamal v.
Price, 154 F.3d 128, 135 (3d Cir. 1998) ("[T]he existence of
obvious, easy alternatives may be evidence that the regulation is not
reasonable.") (quoting Turner, 482 U.S. at 90). As such, having
reviewed Plaintiff's manuscripts and the parties' moving papers, the
Court finds that there are disputed issues of material fact regarding
whether Plaintiff's manuscripts pose a threat to prison security such
that confiscation was justified under the Turner factors.
See Procunier, 416 U.S. at 415 (noting that prison officials
violate First Amendment when for reasons unrelated to valid penological
interests they engage in "censorship of . . . expression of `inflammatory
political, racial, religious, or other views,' and matter deemed
`defamatory' or `otherwise inappropriate'").
The conclusion that Plaintiff has presented a viable First Amendment
claim against Defendants for confiscation of his manuscripts compels this
Court to address the issue of qualified immunity. Under the doctrine of
qualified immunity, governmental officials performing discretionary
functions are entitled to qualified immunity from liability arising out
of conduct that "does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known."
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The analysis of
whether qualified immunity protects an official from liability for
allegedly unlawful actions by turns on the "objective reasonableness" of
the action "assessed in light of legal rules that were clearly
established at the time action was taken." See Anderson v.
Creighton, 483 U.S. 635, 639 (1987). The contours of the right must
be "sufficiently clear that a reasonable official would understand that
what he is doing violates that right." Id. at 640. The doctrine of qualified
immunity protects "all but the plainly incompetent or those who knowingly
violate the law." Malley v. Briggs, 475 U.S. 335, 341 (1986).
In this case, in order to be liable, the Court must conclude that
Defendants should have known that their particular actions, i.e.
confiscating Plaintiff's manuscripts on the Latin Kings, violated
Plaintiff's clearly established rights under the First Amendment.
Although this Court concluded that the confiscation of Plaintiff's
manuscripts may not have been supported under the Turner
factors, the Court is unable to conclude that Defendants' confiscation of
the manuscripts was in violation of clearly established law. Courts
routinely recognize a prison's right to limit prisoner's access to
materials that potentially threaten prison security. Turner, 482
U.S. at 91 (holding that prison regulation limiting inmate-to-inmate
correspondence was logically related to legitimate security concern that
such communication fosters prison gang activity); Thornburgh v.
Abbot, 490 U.S. 401, 412 (1989) (upholding prison regulation
restricting prisoners' receipt of certain publications and specifically
noting danger that prisoners may recognize gang affiliations based on
particular materials possessed by inmates). As the Latin Kings are a
well-known street gang that has been involved in violent activity both
inside and outside prison walls, (Pieretti Aff. ¶ 18), this Court
must conclude that Defendants reasonably determined that Plaintiff's
manuscripts posed a security threat to the institution and thus their
actions did not violate clearly established law. Therefore, the Court
concludes that the doctrine of qualified immunity shields these
Defendants from liability.
2. Reading of Mail in Violation of First Amendment and Prison
Plaintiff alleges that Defendants violated his First Amendment rights
and the prison mail policy by reading his mail before it was delivered to
his cell. While it is true that "prison authorities do not possess
unfettered discretion to censor or restrict and inmate's mail," Gray
v. Creamer, 465 F.2d 179, 186 (3d Cir. 1972), Plaintiff has provided no evidence that
any of the named Defendants had any personal involvement in the alleged
reading of Plaintiff's mail. See Sutton, 323 F.3d at 249 ("Under
our cases, `[a] defendant in a civil rights action must have personal
involvement in the alleged wrongs' to be liable.") (quoting
Rode, 845 F.2d at 1207). In support of this claim, Plaintiff merely
[T]he timing of the Defendants confiscation of his
manuscript is highly suggestive of a casual [sic]
link between Defendants' illegal reading of
Plaintiff's mail and the confiscation of the
manuscript on February 27, 2003. . . . the only
way that Defendant McNally and Defendant Arroyo
could have known about the manuscript was because
they read Plaintiff's mail the day before."*fn5
(Pl.'s Resp. at 22-23.) As Plaintiff has failed to adduce anything
beyond conjecture in support of this allegation, Defendants are granted
summary judgment on these claims.
3. Fourteenth Amendment Due Process Claim*fn6
Plaintiff claims that his manuscripts were taken in violation of the
Due Process Clause of the Fourteenth Amendment because he did not receive
a post-deprivation hearing in accordance with prison guidelines. It is
undisputed that Plaintiff did not receive a hearing because Sergeant
McNally failed to prepare a violation report after each of the confiscation
incidents. (Giannetta Dep. at 15-18.) Defendant moves for summary
judgment on Plaintiff's due process claim on the ground that adequate
post-deprivation remedies are available under state tort law.
In Hudson v. Palmer, the Supreme Court held that deprivations
of property caused by the negligent or intentional misconduct of prison
officials do not infringe constitutional due process provided that
adequate state post-deprivation remedies exist.*fn7 468 U.S. 517, 533
(1983); Reid v. Seville, No. Civ. A. 96-2577, 1996 WL 421901, at
*4, 1996 U.S. Dist. LEXIS 10319, at *10-11 (E.D. Pa. July 19, 1996)
(finding Pennsylvania Tort Claims Act, 42 PA. CONS. STAT. ANN. §
8550, adequate post-deprivation remedy precluding due process claim);
Williams v. Frame, 821 F. Supp. 1093, 1098 (E.D. Pa. 1993)
(same). In this case, Plaintiff claims that his due process rights were
violated as a result of Sergeant McNally's unauthorized conduct of not
filing a proper violation report. As Plaintiff may pursue an action under
Pennsylvania state tort law, Plaintiff's Due Process claim based on the
confiscation of his property is not actionable.
4. Conspiracy to Violate Constitutional Rights
"In order to prevail on a conspiracy claim under § 1983, a
plaintiff must prove that persons acting under color of state law
conspired to deprive him of a federally protected right." Ridgewood
Bd. of Educ. v. N.E. ex rel M.E., 172 F.3d 238, 254 (3d Cir. 1999).
As Plaintiff has failed to offer any evidence of an agreement to deprive
him of constitutional rights, Defendants' motion for summary judgment on this claim is granted.
Plaintiff claims that Defendants retaliated against him for filing this
civil action by denying him use of the law library and education
facilities, depriving him of employment, and confiscating his second
manuscript on October 1, 2003. As Plaintiff has failed to produce
evidence that any of the named Defendants were involved in Plaintiff's
employment, law library access, or education opportunities, Defendants
are granted summary judgment on Plaintiff's claims of unconstitutional
retaliation relating to these allegations.*fn8 See Sutton, 323
F.3d at 249 ("Under our cases, `[a] defendant in a civil rights action
must have personal involvement in the alleged wrongs' to be liable.")
(quoting Rode, 845 F.2d at 1207). Defendants McNally and Moore,
however, were involved in the confiscation of Plaintiff's second
manuscript. Accordingly, the Court's analysis of Plaintiff's retaliation
claim proceeds only with respect to this second confiscation.
To demonstrate a retaliation claim, a prisoner plaintiff must establish
the following elements: (1) he engaged in constitutionally protected
conduct; (2) he suffered adverse action at the hands of prison officials;
and (3) his constitutionally-protected conduct was a substantial or
motivating factor in the decision to discipline him. Rauser v.
Horn, 241 F.3d 330, 333 (3d Cir. 2001). Once a prisoner has
demonstrated his prima facie case, the burden shifts to the defendant to
prove by a preponderance of the evidence that the defendant "would have
made the same decision absent the protected conduct for reasons
reasonably related to a legitimate penological interest." Id.
Plaintiff has established the first two elements of his prima facie
case. Plaintiff's filing of a civil action alleging constitutional violations within prison is
clearly constitutionally protected conduct. Wolff v. McDonnell,
418 U.S. 539, 579 (1974). Under Third Circuit precedent, an adverse
action is any action "sufficient to deter a person of ordinary firmness
from exercising his [constitutional] rights." Allah v.
Seiverling, 229 F.3d 220, 225 (3d Cir. 2000). Certainly,
confiscation of a manuscript could deter a prisoner from exercising his
constitutional right to petition the court to redress future grievances.
To meet the third element of his prima facie case, however, Plaintiff
must produce evidence demonstrating a causal link between the filing of
the instant suit and the confiscation of his second manuscript. See
Rauser, 241 F.3d at 333. The only evidence Plaintiff presents to the
Court in support of the causation requirement is temporal proximity.
While temporal proximity between the exercise of a constitutionally
protected right and the adverse action may support an inference of
causation, id. at 334, over six months had elapsed between the
time Plaintiff filed his lawsuit on March 28, 2003 and the confiscation
of his second manuscript on October 1, 2003. See Farrell v. Planters
Lifesavers Co., 206 F.3d 271, 280 (noting that additional evidence
of causation required when timing alone is not "unduly suggestive").
Plaintiff has failed to point to any additional evidence from which a
reasonable jury could conclude that prison officials seized his second
manuscript as a penalty for exercising his constitutional rights. In
fact, a review of the record reveals uncontradicted evidence that the
second manuscript was seized as part of a routine cell search for
contraband. (Moore Dep. at 11, 20, 28.) As Plaintiff has failed to
demonstrate evidence meeting his prima facie case for retaliation,
Defendants' motion for summary judgment on this claim is granted.
B. Monell Claims Plaintiff has asserted a Monell claim against Defendant City
of Philadelphia.*fn9 In Monell v. New York City Dept. of Social
Services, 436 U.S. 658, 691 (1978), the Supreme Court held that
§ 1983 may give rise to municipal liability when a constitutional
violation occurs as a result of a policy, regulation, or decision
officially adopted by the municipality or informally adopted by custom.
The Third Circuit has elucidated the differences between policies and
customs under Monell:
Policy is made when a "decisionmaker possess[ing]
final authority to establish municipal policy with
respect to the action" issues an official
proclamation, policy, or edict. A course of
conduct is considered to be a "custom" when,
though not authorized by law, "such practices of
state officials [are] so permanent and well
settled" as to virtually constitute law.
Andrews v. City of Philadelphia, 895 F.2d 1469
, 1480 (3d
Cir. 1990). Custom may also be established by evidence of knowledge and
acquiescence, "i.e., that policymakers were aware of similar unlawful
conduct in the past, but failed to take precautions against future
violations, and that this failure, at least in part, led to their
injury." Bielevicz, 915 F.2d at 851. Proof of the mere existence
of an unlawful policy or custom, however, is not enough. In order to
sustain a claim for municipal liability under § 1983, a plaintiff
must show that the municipal practice was the proximate cause of his
injury. Bielevicz v. Dubinon, 915 F.2d 845
, 850 (3d Cir. 1990).
Plaintiff argues that Defendants' failure to respond to Plaintiff's
internal complaints concerning the illegal confiscation of his manuscript
amounts to a municipal custom exposing Defendants to liability under
Monell. In support, Plaintiff cites to several internal prison
grievance forms introduced as exhibits in his deposition. Only two of the
grievance forms, however, even mention the confiscated manuscript, (Pl.'s Dep. at 83, 86; Ex. D-4
(Grievance Form 3/3/03), Ex. D-13 (Grievance Form 10/1/03)), and
Plaintiff has not presented any deposition testimony or documentary
evidence demonstrating official awareness of previous similar
events.*fn10 Similarly, Plaintiff has produced no evidence regarding the
prison's procedures for confiscating inmate materials or responding to
inmate grievances from which one could infer a custom of permitting
unlawful confiscation of materials. Although a municipalities' awareness
of and acquiescence to unlawful conduct can result in liability under
Monell, Plaintiff has not adduced any evidence from which a
reasonable jury could find a custom of illegal confiscation of inmate
materials. Cf. Beck v. City of Pittsburgh, 89 F.3d 966, 973-75
(3d Cir. 1996) (noting numerous previous complaints of similar nature in
narrow time period, deficient investigation procedures, and official
internal report from which jury could find custom of failing to protect
civilians from police misuse of force); Bielevicz, 915 F.2d at
852 (noting testimony of two police chiefs and officer enough to support
jury inference of "long-established custom" of arresting individuals for
public drunkenness without probable cause). Accordingly, Defendants'
motion for summary judgment on Plaintiff's Monell claim is
For the foregoing reasons, Defendants' motion for summary judgment is
granted. In this case, the Court is prevented from allowing Plaintiff's
First Amendment claims to proceed because I have found qualified immunity
and because of Plaintiff's failure to present evidence of a viable
Monell claim. Let there be no question, however, of this Court's
deep concern that the confiscation of a prisoner's writings raises grave questions regarding when First
Amendment rights must give way to legitimate penological interests and
the appropriate role of prison officials and the courts in making that
determination. Prison regulations limiting prisoner's First Amendment
freedoms should be drafted and applied carefully and with due deference
to the values the First Amendment was designed to protect, especially
when such regulations impinge on a prisoner's possession of personal
writings within the confines of his cell, as such acts tread dangerously
close to regulation of the prisoner's thoughts themselves.
An appropriate Order follows.
AND NOW, this 19th day of May, 2004, upon
consideration of Defendants' Motion for Summary Judgment and Motion to
Dismiss, Plaintiff Jose Medina's response thereto, and for the foregoing
reasons, it is hereby ORDERED that:
1. Defendants' Motion for Summary Judgment and
Motion to Dismiss (Document No. 46) is
2. Judgment is entered in favor of the
Defendants and against Plaintiff.