United States District Court, M.D. Pennsylvania
September 2, 2005.
KEITH JENNINGS, Plaintiff
FEDERAL BUREAU OF PRISONS, et al., Defendants.
The opinion of the court was delivered by: MALCOLM MUIR, Senior District Judge
MEMORANDUM AND ORDER
On December 30, 2003, Plaintiff, Keith Jennings, an inmate
presently confined in the Allenwood United States Penitentiary,
White Deer, Pennsylvania, ("USP-Allenwood"), filed the above
captioned action pursuant to the Federal Tort Claims Act
("FTCA"), Bivens vs. Six Unknown Fed. Narcotics Agents,
403 U.S. 388 (1971), 42 U.S.C. §§ 1983, 1985 et seq., and Pennsylvania
state law. He alleges that defendants retaliated against him for
filing a Federal Tort Action against United States Marshals in
the United States District Court for the Northern District of New York*fn1 by restricting his telephone privileges. He
names as defendants, the United States; the Federal Bureau of
Prisons ("BOP); BOP Director Harvey Lappins; Assistant U.S.
Attorney John Katko; Assistant U.S. Attorney Charles Roberts;
Former Warden Jake Mendez; Warden Michael V. Pugh; Special
Investigative Agent J. Feeney; BOP Regional Director M.E. Ray;
and Unit Manager Noone.
By Order dated February 12, 2004, this action was dismissed,
without prejudice, for plaintiff's failure to pay the filing fee.
(Doc. No. 9). On February 18, 2004, plaintiff filed a motion for
reconsideration of the Court's February 12, 2004, Order. (Doc.
No. 10). On March 8, 2004, plaintiff's motion for reconsideration
was granted and his case was reopened. (Doc. No. 12). By Order
dated March 17, 2004, the Court dismissed plaintiff's FTCA claims
against the individual defendants and the Federal Bureau of
Prisons, dismissed the respondeat superior claims contained in Count VII of the complaint, and directed that
plaintiff's action be served on the defendants. (Doc. No. 17).
On July 23, 2004, Jennings filed an amended complaint in which
he sought to add the Director of the United States Marshals
Service and unknown U.S. Marshals as defendants to his action.
(Doc. No. 28). He also sought to add new claims regarding these
On December 2, 2004, defendants filed a motion to dismiss the
claims raised in plaintiff's original complaint and his amended
complaint. (Doc. No. 42). On February 22, 2005, Jennings filed a
motion to voluntarily dismiss his amended complaint and only
proceed on those claims, and against those defendants, named in
his original complaint. (Doc. No. 53). The Court will grant this
Presently before the Court is defendants' motion to dismiss
plaintiff's original complaint. This motion is fully briefed and
is ripe for disposition. For the reasons set forth below, the
Court will grant the defendants' motion to dismiss. Statement of Facts*fn2
On March 17, 1999, Jennings was convicted of the following: (1)
engaging as a supervisor or manager in a continuing criminal
enterprise (CCE), in violation of 18 U.S.C. §§ 841(a)(1), 846 and
853; (2) multiple counts of conspiring to distribute and
possession with intent to distribute cocaine, cocaine base and
marijuana in violation of 18 U.S.C. § 841(a)(1); and (3)
conspiracy to commit money laundering in violation of
18 U.S.C. § 841(a)(1); and (3) conspiracy to commit money laundering in
violation of 18 U.S.C. § 1956(a)(1)(A)(i). (Doc. No. 4 Affidavit
of John M. Katko, Assistant United States Attorney, attached as
exhibit). Defendant, John Katko, was the Assistant United States
Attorney for the Northern District of New York, who prosecuted
After Jennings was convicted, and while he was awaiting
sentencing, defendant Katko was advised by members of the United
States Marshals Service and other federal agents that Jennings
had repeatedly threatened to kill Katko. Id. The United States Attorney's Office also received information that Jennings had
made plans to escape. Based on these threats, the United States
Marshals Service arranged for Jennings to be transferred from the
Onondaga Count Justice Center in Syracuse, pending sentencing, to
the Federal Correctional Institution, Ray Brook, New York, a more
secure facility. Id.
On March 20, 2000, Jennings was sentenced to life imprisonment.
Id. He was then committed to the custody of the Bureau or
By Memorandum dated February 12, 2001, Jennings was notified by
Special Investigative Agent, J. Feeney, that his telephone usage
was limited to one telephone call per day. (Doc. No. 4, Exhibit
1). On February 13, 2001, Jennings submitted an Informal
Resolution Form with his Unit Manager, challenging the limited
usage of the telephone and "requesting a copy of the date and
time that this miss used (sic) telephone conversation take place,
also a copy of the receiving party with a coy of [plaintiff's]
phone list." (Doc. No. 4, Ex. 2). Plaintiff's unit manager
"the Special Investigative Agent informed you of the
reason why you were placed on limited telephone
privileges. This is a result of you using the telephone to further criminal activity. You may
present any documentation on your behalf to the SIA
for further review of your current telephone
(Doc. No. 4, Ex. 2).
On February 14, 2001, plaintiff filed a Request for
Administrative Remedy with the Warden, challenging the telephone
restriction. (Doc. No. 4, Ex. 3). In a response dated March 8,
2001, Warden Mendez informed Jennings of the following:
"Due to the fact you used the telephone or phone like
communicating devices to conduct narcotic trafficking
extensively in the commission of your offense, you
have been placed on a telephone monitoring status. On
February 17, 2001, you received a memorandum stating
you are authorized to conduct one telephone call per
This decision is based on information obtained
through your Presentence Investigation and not a
review of a pre-recorded telephone conversation
conducted within the United States Penitentiary
(USP), Allenwood. Therefore, your request to receive
a copy, date and time of the specific conversation
where you misused the telephone is not maintained by
staff at USP-Allenwood. With respect to your request
for a copy of your telephone list, you may contact
your Unit Counselor and request his through use of an
Inmate Request to Staff Member Form, `Cop-Out'.
Accordingly, your Request for Administrative Remedy
has been denied. If you are not satisfied with this
response, you may appeal to the Regional Director
within 20 calendar days of this response."
(Doc. No. 4, Ex. 4). On March 11, 2001, Jennings filed a Regional Administrative
Remedy Appeal to the Regional Director. (Doc. No. 4, Ex. 5). In a
response dated April 11, 2001, the Regional Director denied
Jennings' appeal, finding that:
Program Statement 5264.07, Telephone Regulations for
Inmates, and the implementing regulation at
28 C.F.R. § 540.100, authorize the Warden to make those
limitations to inmates telephone use as "are
necessary to ensure the security or good order,
including discipline, of the institution or to
protect the public." The Program Statement also
provides that "the Warden shall permit an inmate who
has not been restricted from telephone use as the
result of a specific institutional disciplinary
sanction to make at least one telephone call each
month." Records indicate your current offense is
Continuing Criminal Enterprise, Possession with
Intent to Distribute Cocaine and Cocaine Base and
Money Laundering. Your records further reveal you
conducted financial transactions by means of wire
transfers and used wire communications to conceal the
trafficking of drugs. Based on this type of offense,
you have been appropriately limited to one social
telephone call per day. Ths limitation assists staff
in maintaining the security and good order of the
institution and to protect the public.
A review of the notification memorandum you received
from the SIA revealed the wording on the notification
is inaccurate. The Warden properly advised you that
the telephone limitation was a result of your current
offense and information obtained in your Pre-sentence
Investigative report, not as a result of prison
telephone abuse. You will receive the correct
notification regarding your telephone limitation.
Accordingly, your appeal is denied.
(Doc. No. 4, Ex. 7). On April 19, 2001, Jennings filed a Central Office
Administrative Remedy Appeal to the General Counsel. (Doc. No. 4,
Ex. 8). In a response dated June 19, 2001, Jennings' appeal was
denied. (Doc. No. 4, Ex. 9).
Jennings then attempted a second challenge to the telephone
restriction, claiming that the restriction was unlawful because
it was issued by a Special Investigative Agent and that according
to 28 C.F.R. § 546.100, the Warden is the only authority to
suspend/restrict telephone privileges. (Doc. No. 4, Exs. 10-12).
In a June 22, 2001, response to his Request for Administrative
Remedy, Warden Mendez, upheld the restriction, but granted
plaintiff's Request for Administrative Remedy, in part, to the
extent that the only authority to suspend/restrict an inmate's
telephone use is the Warden. (Doc. No. 4, Ex. 13). Thus,
Jennings' Request for Administrative Remedy was granted to the
extent that a new memo was to be issued to reflect the Warden's
authorization to restrict Jennings' telephone privileges. Id.
On June 21, 2002, the Warden issued a memorandum limiting
Jennings' telephone use to 120 minutes per month. (Doc. No. 4,
Ex. 14). On October 25, 2002, Jennings again attempted to challenge the
telephone restriction, claiming that it was based on a 1999
Memorandum that stated that plaintiff made three way phone calls
to make threats against an Assistant United States Attorney while
incarcerated at the Onondaga County Justice, Center, Syracuse,
New York. (Doc. No. 4, Ex. 22). On November 1, 2002, Jennings'
Unit Manager responded to Jennings that there was "no disclosure
information in [his] central file pertaining to [his] making a 3
way telephone call to make threats against a AUSA." (Doc. No. 4,
On November 1, 2002, plaintiff filed a Request for
Administrative Remedy, seeking to have the 1999 Memorandum
removed from his file, and his telephone privileges reinstated.
(Doc. No. 4, Ex. 24). Finding justification for the phone
restriction, independent of the 1999 Memorandum, plaintiff's
Request for Administrative Remedy and appeals of same were
denied. (Doc. No. 4, Exs. 25, 27).
On August 22, 2003, Jennings filed an Request for
Administrative Remedy, claiming that the issuance of the 1999
Memorandum is a "conspiracy to retaliate against [him] without
due process or a disciplinary report filed in support of accusations that [he] threatened assistant U.S. Attorney (Katko).
(Doc. No. 4, Ex. 45).
In a response dated September 17, 2003, Warden Pugh denied
Jennings' Request for Administrative Remedy, finding that:
A memorandum dated July 21, 1999, indicates that you
used a three-way telephone call to make threats to
the Assistant United States Attorney who prosecuted
your case. The United States Marshals Service has
requested that you have limited telephone usage and
that all calls be closely monitored. The United
States Attorneys Office, Northern District of New
York was contacted and verified the above information
to be accurate. Although no formal disciplinary
action was taken, you were transferred to the Federal
Correctional Institution in Ray Brook, New York, for
security reasons and to protect the Assistant United
States Attorney who prosecuted your case. Therefore,
no evidence exists that staff conspired to retaliate
(Doc. No. 4, Ex. 46).
On September 20, 2003, Jennings filed a Regional Administrative
Remedy Appeal with the Regional Director, challenging the
Warden's denial of his Administrative Remedy. (Doc. No. 4, Ex.
47). In a response dated October 29, 2003, Jennings' appeal was
denied. The Regional Director found no evidence of retaliation or
conspiracy, as there was no indication that the information
received was erroneous and, that the Bureau has broad discretion to consider information in making
classification decisions. (Doc. No. 4, Ex. 48).
On December 30, 2003, Jennings filed the instant action
pursuant to the Federal Tort Claims Act ("FTCA"); Bivens vs. Six
Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971);
42 U.S.C. §§ 1983, 1985 et seq. and Pennsylvania state law. He seeks
compensatory and punitive damages for defendants' negligent and
conspiratorial acts of depriving him of his constitutional
rights, by limiting his telephone privileges. (Doc. No. 1).
Standard of Review
In deciding a motion to dismiss pursuant to Rule 12(b)(6),
courts generally consider only the allegations in the complaint,
exhibits attached to the complaint, matters of public record, and
documents that form the basis of a claim. See In re Burlington
Coat Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997). All
material allegations of the complaint must be accepted by the
Court as true and construed in favor of the plaintiff. Allah vs.
Seiverling, 229 F.3d 220, 223 (3d Cir. 2000); Shaev vs. Saper,
320 F.3d 373, 375 (3d Cir. 2003). Claims may be dismissed
pursuant to a Rule 12(b)(6) motion only if the plaintiff cannot
demonstrate any set of facts that would entitle him to relief. Conley vs. Gibson, 355 U.S. 41, 45-46
(1957); Lum vs. Bank of America, 361 F.3d 217, 223 (3d Cir.
2004). However, the Court is not required to accept legal
conclusions, either alleged or inferred, from the pleaded facts.
Morse vs. Lower Merion School District, 132 F.3d 902, 906 (3d
Cir. 1997). In Nami vs. Fauver, 82 F.3d 63, 65 (3d Cir. 1996),
the Court of Appeals for the Third Circuit added that when
considering a motion to dismiss based on failure to state a
claim, a court should "not inquire whether the plaintiffs will
ultimately prevail, only whether they are entitled to offer
evidence to support their claims." When an unrepresented party is
confronted by a motion to dismiss, the deciding court must be
mindful of the well-settled principle that pro se complaints
should be liberally construed, Haines vs. Kerner, 404 U.S. 519,
520 (1972), and that pro se litigants are to be granted leave
to file a curative amended complaint "even when a plaintiff does
not seek leave to amend," unless such an amendment would be
inequitable or futile. Alston vs. Parker, 363 F.3d 229, 235 (3d
Cir. 2004). However, a complaint that sets forth facts which
affirmatively demonstrate that the plaintiff has no right to
recover is properly dismissed without leave to amend. Grayson vs. Mayview State Hospital, 293 F.3d 103, 106 (3d Cir. 2002);
see also Estelle vs. Gamble, 429 U.S. 97, 107-108 (1976).
With these principles in mind the Court will address the
defendants' motion to dismiss.
A. Restricted Telephone Privileges
In accordance with BOP Program Statement 5264.07, Telephone
Regulations for Inmates, codified at 28 C.F.R. § 540.100(a):
The Bureau of Prisons extends telephone privileges to
inmates as part of its overall correctional
management. Telephone privileges are a supplemental
means of maintaining community and family ties that
will contribute to an inmate's personal development.
An inmate may request to call a person of his or her
choice outside the institution on a telephone
provided for that purpose. However, limitations and
conditions may be imposed upon an inmate's telephone
privileges to ensure that these are consistent with
other aspects of the Bureau's correctional management
responsibilities. In addition to the procedures set
forth in this subpart, inmate telephone use is
subject to those limitations which the Warden
determines are necessary to ensure the security or
good order, including discipline, of the institution
or to protect the public. Restrictions on inmate
telephone use may also be imposed as a disciplinary
sanction (see 28 CFR part 541).
The only frequency requirement indicated by this regulation is
that an inmate who has not been restricted from telephone use due
to a discipline infraction be permitted "to make at least one telephone call each month." 28 C.F.R. § 540.100(b)
The regulations also specify a Warden may not apply a frequency
limitation on the number of calls an inmate may place to his
attorney. However, the inmate must demonstrate other means of
communication with their attorney, i.e., correspondence or
visiting, are inadequate. See 28 C.F.R. § 540.103. In these
cases, the inmate must demonstrate a pressing legal need or court
deadline in order to receive an unmonitored "legal call."
Nevertheless, "inmate telephone use is subject to those
limitations which the Warden determines are necessary to ensure
the security or good order, including discipline, of the
institution or to protect the public." 28 C.F.R. § 540.100.
Because restriction of an inmate's use of telephones is wholly
within the discretion of BOP officials, Jennings' has no liberty
interest in having telephone privileges. See, e.g., Valdez vs.
Rosenbaum, 302 F.3d 1039 (9th Cir. 2002); Benzel vs. Grammar,
869 F.2d 1105, 1108(8th Cir.), cert denied, 493 U.S. 895 (1989)
(an inmate "has no right to unlimited telephone use").
Even if a prison regulation impinges on an inmate's
constitutional rights, the regulation is valid if it is nonetheless "reasonably related to legitimate penolgical
interests." Turner vs. Safley, 482 U.S. 78, 89 (1987). In the
instant case, Jennings' telephone use was limited due to the fact
that he conducted financial transactions by means of wire
transfers and used wire communications to conceal the trafficking
of drugs and that he used a three-way telephone call to make
threats to the Assistant United States Attorney who prosecuted
his case. Thus, limiting Jennings' telephone privileges was
clearly reasonably related to legitimate penological interests
and, consequently, does not violate his constitutional rights.
Moreover, the restriction placed upon Jennings' telephone
privileges was wholly in accordance with BOP policy, which
permits an inmate's access to the telephone to be restricted if
necessary to ensure the institution's safety, security, or good
order, or to protect the public. Furthermore, plaintiff was only
restricted to one call per day, which is more than consistent
with 28 C.F.R. § 540.100(b), which permits the Warden to limit an
inmate who has not been restricted from telephone use due to a
discipline infraction be permitted "to make at least one
telephone call each month." 28 C.F.R. § 540.100(b) (emphasis added). Finally, Jennings can show no
prejudice from the Warden's limitation on his telephone use. An
agency must comply with its own regulations, but a person
aggrieved by its failure to do so must at least show prejudice.
Lee Moi Chong. vs. INS, 264 F.3d 378, 390 (3d Cir. 2001). Here,
plaintiff cannot show any prejudice from the telephone
restriction. For instance, Plaintiff has not shown that his phone
limitation has caused him any interference with his access to the
courts. See Lewis vs. Casey, 518 U.S. 343, 349 (1996) (holding
that an inmate alleging that a prison violated his right to
access the courts must show actual prejudice). Thus, the
plaintiff has not suffered a constitutional violation as a result
of the restriction, and the defendants' motion to dismiss will be
To establish a Section 1983 retaliation claim, a plaintiff
bears the burden of satisfying three elements. First, a plaintiff
must prove that he was engaged in a constitutionally protected
activity. Rauser vs. Horn, 241 F.3d 330, 333 (2001). Second, a
prisoner must demonstrate that he "suffered some `adverse action'
at the hands of prison officials." Id. (quoting Allah vs. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000)).
This requirement is satisfied upon showing that "the action `was
sufficient to deter a person of ordinary firmness from exercising
his First Amendment rights.'" Id. (quoting Allah,
229 F.3d at 225). Third, a prisoner must prove that "his constitutionally
protected conduct was `a substantial or motivating factor' in the
decision to discipline him." Id. (quoting Mount Healthy Bd. of
Educ. vs. Doyle, 429 U.S. 274, 287 (1977). Once a prisoner
demonstrates that his exercise of a constitutional right was a
substantial or motivating factor in the challenged decision, the
prison officials may still prevail by proving that they would
have made the same decision absent the protected conduct for
reasons reasonably related to a legitimate penological interest.
Id. at 334.
Jennings alleges that as a result of his filing a January 4,
2001, administrative tort claim against the U.S. Marshals
Service, the named defendants in this action retaliated against
him by restricting his telephone privileges. (Doc. No. 1 at p.
Because Jennings cannot demonstrate that "his constitutionally
protected conduct was `a substantial or motivating factor' in the decision to discipline him," the Court
will assume the first two elements arguendo and will proceed
directly to the causation element.
Jennings' proof of causation depends solely on the close
temporal proximity between the filing of his administrative tort
claim and the limitation on his telephone privileges. Indeed,
temporal proximity can be evidence of causation. See Rauser,
241 F.3d at 334. Plaintiff's telephone privileges were limited on
February 12, 2001, more than one month after serving the U.S.
Marshals service with his tort claim. Such proximity, at best, is
tenuous to prove that the filing of the tort claim was a
motivating factor in defendants' restricting plaintiff's
Moreover, the Court has already found that a legitimate
penological reason existed for restricting plaintiff's telephone
privileges. Jennings' conducted financial transactions by means
of wire transfers and used wire communications to conceal the
trafficking of drugs and he used a three-way telephone call to
make threats to the Assistant United States Attorney who
prosecuted his case. Thus, the complaint, and its many exhibits
attached thereto, are devoid of any evidence that draw into question the propriety or sincerity of defendants' determination
to restrict Jennings' telephone privileges. Thus, even if
Jennings could prove causation, the voluminous documentation in
support of his complaint establish that defendants' "would have
taken the same disciplinary action even in the absence of the
protected activity." Rauser, 241 F.3d at 333. Thus, defendants'
motion to dismiss will be granted.
C. FTCA Claim
The FTCA provides a cause of action against the United States
for common law torts. 28 U.S.C. § 2674. It establishes that the
United States, except in limited circumstances, can be held
liable for negligence to the same extent as a private individual.
Id.; United States vs. Muniz, 374 U.S. 150, 153 (1963).
Included among cognizable claims under the FTCA are claims by
federal prisoners if they receive injuries by reason of
negligence of government employees. 28 U.S.C. § 1346(b); Muniz,
374 U.S. at 150. Here, plaintiff does not state a cause of action
under the FTCA because the asserted prison regulation and program
statement do not create a legal right enforceable in an action for damages, and Jennings provides no other
substantive, viable source for his FTCA claim.*fn3
The regulation at issue here, 28 C.F.R. § 540.100, relates to
the institutional management of the Bureau of Prisons. On its
face, it does not provide for a private right of action and there
is no indication that Congress intended it to create an implied
private right of action. See Bonano vs. East Caribbean Airline
Corp., 365 F.3d 81, 84 (1st Cir. 2004) ("[A] regulation, on its
own, cannot create a private right of action."). See also,
18 U.S.C. §§ 4001, 4042. Jennings' putative constitutional tort
claims are also not actionable under the FTCA, and he has failed
to plead and prove a source of substantive liability under state tort law. F.D.I.C. vs. Meyer,
510 U.S. 471, 477-78 (1994). Defendants' motion to dismiss will
D. Jennings' 42 U.S.C. §§ 1985, 1986 claims
1. Section 1985
Jennings' complaint alleges that, in addition to
28 U.S.C. § 1331 and 42 U.S.C. § 1983, his action arises under
42 U.S.C. §§ 1985, 1986. Section 1985(1) creates a cause of action against
those who conspire to prevent officials from performing their
duties. Section 1985(2) creates a cause of action against those
who conspire to obstruct justice, intimidate a party, witness or
jurors to a suit. Section 1985(3) creates a cause of action
against those who conspire deprive persons of their rights or
liberties. The court assumes that Jennings' claim is brought
under § 1985(3).
In order to establish a § 1985(3) violation, the plaintiff must
prove the following five elements:
1) A conspiracy;
2) motivated by racial or perhaps otherwise
class-based invidious discrimination;
3) for the purpose of depriving either directly or
indirectly, any person or class of persons of equal
protection of the laws, or equal privileges and
immunities under the laws; 4) an act in furtherance of the conspiracy; and
5) that the plaintiff was injured in his person or
property or was deprived of having and exercising any
right or privilege of a citizen of the United States.
Griffin vs. Breckenridge, 403 U.S. 88
, 102-03 (1971); Hudson vs.
Thornburgh, 770 F.Supp. 1030 (W.D.Pa. Aug. 12, 1991).
A claim for conspiracy under the under § 1985(3) must show that
the alleged conspirators did in fact violate the constitutional
rights of the plaintiff. Dells, Inc. vs. Mundt, 400 F.Supp. 1293,
1298 (S.D.N.Y. 1975). The court has already indicated that
Jennings has failed to state a violation of his constitutional
rights as a consequence of his telephone restriction. As such,
Jennings has failed to establish the third prong of the Supreme
Court's test. His complaint fails to establish a required element
of an action brought pursuant to 42 U.S.C. § 1985. Accordingly,
defendants' motion to dismiss will be granted on this claim.
2. § 1986
Liability under 42 U.S.C. § 1986, which provides a cause of
action for neglect to prevent conspiracy to interfere with a
person's civil rights, is derivative of liability under
42 U.S.C. § 1985(3); without violation of the latter, there can be no violation of the former. Grimes vs. Smith, 776 F.2d 1359 (7th
Cir. 1985); Trerice vs. Pedersen, 769 F.2d 1398 (9th Cir. 1985);
Rogin vs. Bensalem Township, 616 F.2d 680 (3d Cir. 1980), cert
denied, 450 U.S. 1029 (1981); Rourke vs. United States,
744 F.Supp. 100 (E.D.Pa. 1988). As such, the court will grant
defendants' motion to dismiss this claim.
E. State law claims
To the extent that plaintiff seeks to raise state law claims of
negligence or intentional infliction of emotional distress, the
court declines to exercise supplemental jurisdiction over the
pendent state law claims. 28 U.S.C. § 1367(c)(3). Those claims
will be dismissed to any right Jennings may have to purse them in
state court. In so holding, we express no opinion as to the
merits of any such claims.
An appropriate order will issue. ORDER
For the reasons set forth in the foregoing Memorandum, IT IS
HEREBY ORDERED THAT:
1. The plaintiff's motion to dismiss his amended
complaint (Doc. No. 53) is GRANTED. The claims
raised in the plaintiff's amended complaint (Doc. No.
28) and the defendants named therein are dismissed
from this action.
2. Defendants' motion to dismiss plaintiff's action
(Doc. No. 41) is GRANTED.
3. The Clerk of Court shall CLOSE this case.
4. Any appeal taken from this order will be deemed
frivolous, without probable cause, and not taken in
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