Opinion
Civil Action 2:21-cv-72
02-01-2022
DERRICK JUBECK Plaintiff, v. ORLANDO HARPER, ALLEGHENY COUNTY, JASON BEASOM, HERMITA THOMAS, DAVID HUNGERMAN, IAN JACKSON, MICHELLE GILDEA, JOHN DOE CORRECTIONS OFFICERS, DAVID ZETWO, JUSTIN FIRESTINE, DANIEL BOSI, HEATHER GREENWALT, DAVID HOLLAND, RAYMOND FLEISNER, IVAN MILICEVIC, RICH GERBER and STEPHANIE FRANK Defendants.
Bissoon, District Judge
REPORT AND RECOMMENDATION
PATRICIA L. DODGE, UNITED STATES MAGISTRATE JUDGE
I. RECOMMENDATION
It is respectfully recommended that the Motion to Dismiss filed by Defendants Jason Beasom, Hermita Thomas, David Hungerman, Ian Jackson, Michelle Gildea, David Zetwo, Justin Firestine, Daniel Bosi, Heather Greenwalt, David Holland, Raymond Fleisner, Ivan Milicevic, Rich Gerber and Stephanie Frank be granted. It should be granted with prejudice as to Defendants Fleisner, Greenwalt, Holland, Bosi, Milicevic, Gerber, Frank, Jackson, Gildea and Firestine and without prejudice as to the supervisory liability claims against Defendants Hungerman, Zetwo, Beasom, and Thomas.
II. REPORT
On May 30, 2019, Plaintiff Derrick Jubeck (“Plaintiff” or “Jubeck”), an Allegheny County Jail (“ACJ”) pretrial detainee, was physically assaulted by fellow inmate Mister Mitchell, who had physically assaulted another inmate on October 18, 2018 and yet another on May 7, 2019. Plaintiff later commenced this civil action pursuant to 42 U.SC. § 1983, alleging that Defendants failed to protect him. Plaintiff states that all Defendants are sued in their individual capacities. Amended Complaint, ECF No. 11 ¶ 29.
“Mister” is Mitchell's given name and not a courtesy title.
Defendants' Motion to Dismiss seeks partial dismissal of the Amended Complaint for those named defendants who were present when the two prior assaults occurred but were not present on May 30, 2019 when Plaintiff was assaulted. The motion also seeks dismissal of those defendants who were present on May 30th, along with certain other ACJ officials. Defendants Allegheny County and Warden Orlando Harper have not moved for dismissal. See Motion to Dismiss (ECF No. 29) and accompanying proposed order (ECF No. 29-1).
A. Relevant Factual Allegations
The Amended Complaint is extremely long and contains numerous legal conclusions and alternate legal theories within what should be the factual narrative. Here, the Court sets out only the factual allegations relating to the attack on Plaintiff and those facts preceding that event.
On October 10, 2018, ACJ inmate Mister Mitchell (“Mitchell”) assaulted an inmate in intake cell H3, a pretrial holding cell. The assault was not provoked by the other inmate. Id. ¶¶ 35- 37 & cyber link to video of attack (¶ 36). Mitchell was single celled after the attack. Id. ¶ 39. Defendant Correctional Officer Fleisner witnessed the attack but characterized it as a “fight” in a misconduct report and also to his Sergeant, Defendant Greenwalt. Defendant Greenwalt reported the attack to her captain, Defendant Bosi, who reviewed the video of the attack. In his report, Defendant Bosi describes the incident as an “attack.” Defendant Fleisner alerted another correctional officer, Defendant Holland, that a fight had occurred between Mitchell and the other inmate. Defendant Holland authored a report describing the incident as a “fight.” The names of witnesses were not gathered. Id. ¶ 40. No. criminal charges were filed against Mitchell. Id. ¶ 43.
On May 27, 2019, Inmate Mitchell assaulted another inmate in cell H15 in the intake unit. Correctional officers removed Mitchell from the pod where the attack occurred. According to an inmate who spoke with Mitchell, Mitchell indicated that he assaulted the inmate because “he looked at me like I was a faggot.” Id. ¶¶ 45-46, 48. Defendant Sergeant Gerber filed a misconduct, but no criminal charges were filed against Mitchell. Id. ¶¶ 49-50, 55. Mitchell was placed in DHU status. Id. ¶ 51. Plaintiff alleges that “all of the Defendants knew that Mister Mitchell attacked another inmate without provocation on October 10, 2018 while housed in the intake unit.” Id. ¶ 53. The misconduct report was approved by Defendant Milicevic. No. witnesses were identified or interviewed, and no formal misconduct hearings were conducted by any of the defendants. There is no video of this attack. Id. ¶¶ 54-58.
On May 30, 2019, Plaintiff was attacked by Mitchell inside the sally port of Pod 4A. Video footage of the attack reflects that at one point, Mitchell and Plaintiff were alone in the sally port. As Plaintiff walked toward the sally port door leading to the hall, Mitchell struck him without provocation or warning and continued to strike him when he fell to the floor. Id. ¶ 90 (cyber link to video). When Defendant Corrections Officer Jackson observed the disturbance inside the sally port of Pod 4A, he responded with Defendant Corrections Officer Gildea, who was working at the pod's control panel a short distance way. Id. ¶ 91 (excerpt from criminal complaint incorporated into Amended Complaint). Defendant Jackson reported that he observed Mitchell punch Jubeck, lift him, and slam his head on the ground, which appeared to render Jubeck unconscious. Defendant Jackson ordered Mitchell to stop as Mitchell continued to punch Jubeck's head and face as he lay unconscious. As other corrections officers arrived, Mitchell ceased his assault and surrendered to Defendant Corrections Officer Firestine, who removed Mitchell from the scene. Id. ¶ 91. Plaintiff sustained severe head, neck and back injuries as a result of the attack. Id. ¶ 117.
Plaintiff further alleges that the Allegheny County Police closed its investigation of the May 30, 2019 attack on June 3, 2019 with no criminal charges filed against Mitchell. Plaintiff asserts that it was not until he reached out to the Allegheny County Police (after several attempts to contact the ACJ) that the criminal investigation was reopened on August 21, 2019. Mitchell was taken back into custody on August 22, 2019 after the ACJ had released him after the May 30, 2019 attack. Id. ¶¶ 111-13.
In Count I of the Amended Complaint, Plaintiff attempts to assert a claim under 42 U.S.C. § 1983 against the individual defendants and Allegheny County pursuant to the Fifth, Eighth and Fourteenth Amendments to the United States Constitution for failure to protect/failure to intervene Id. ¶¶ 122, 120-29.
In Count II, Plaintiff attempts to state a claim pursuant to 42 U.S.C. § 1983 against the individual defendants for supervisory liability and against Allegheny County for municipal liability relating to an official policy, custom or practice of housing/holding minimum level inmates with maximum level/predator/violent inmates in sally ports. Id. ¶¶ 130-39.
B. Legal Standard
The United States Court of Appeals for the Third Circuit aptly summarized the standard to be applied in deciding motions to dismiss filed pursuant to Rule 12(b)(6):
Under the “notice pleading” standard embodied in Rule 8 of the Federal Rules of Civil Procedure, a plaintiff must come forward with “a short and plain statement of the claim showing that the pleader is entitled to relief.” As explicated in Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), a claimant must state a “plausible” claim for relief, and “[a] claim has facial plausibility when the pleaded factual
content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Although “[f]actual allegations must be enough to raise a right to relief above the speculative level, ” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007), a plaintiff “need only put forth allegations that raise a reasonable expectation that discovery will reveal evidence of the necessary element.” Fowler [v. UPMC Shadyside, 578 F.3d [203, ] [] 213 [(3d Cir. 2009)] (quotation marks and citations omitted); see also Covington v. Int'l Ass'n of Approved Basketball Officials, 710 F.3d 114, 117-18 (3d Cir.2013).Thompson v. Real Estate Mortg. Network, 748 F.3d 142, 147 (3d Cir. 2014).
C. Analysis
Section 1983 of the Civil Rights Act provides as follows:
Every person who, under color of any statute, ordinance, regulation, custom, or usage of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or any other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .42 U.S.C. § 1983. To state a claim for relief under this provision, a plaintiff must demonstrate that the conduct in the complaint was committed by a person or entity acting under color of state law and that such conduct deprived the plaintiff of rights, privileges or immunities secured by the Constitution or the laws of the United States. Piecknick v. Commonwealth of Pennsylvania, 36 F.3d 1250, 1255-56 (3d Cir. 1994). Section 1983 does not create rights; it simply provides a remedy for violations of those rights created by the United States Constitution or federal law. Kneipp v. Tedder, 95 F.3d 1199, 1204 (3d Cir. 1996).
In addition, “[a] defendant in a civil rights action must have personal involvement in the alleged wrongs.” Rode v. Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (the personal involvement of each defendant in the alleged constitutional violation is a required element; a plaintiff must allege how each defendant was involved in the events and occurrences giving rise to the claims). Vicarious liability has no place in § 1983 jurisprudence, and therefore, a plaintiff must plead that each government-official defendant, through the official's own actions, violated the constitution. Iqbal, 556 U.S. at 676. Personal involvement may be shown “through allegations of personal direction or of actual knowledge and acquiescence.” Rode, 825 F.2d at 1207.
As a pretrial detainee, Plaintiff is protected by the Due Process Clause of the Fourteenth Amendment. See Reynolds v. Wagner, 128 F.3d 166, 173 (3d Cir. 1997) (the Due Process Clause provides protections for pretrial detainees similar to those protections afforded to sentenced prisoners); see also Bell v. Wolfish, 441 U.S. 520, 544 (1979). The Eighth Amendment sets forth the minimum standard by which claims of pretrial detainees' rights should be evaluated. See Bell, 441 U.S. at 544 (“pretrial detainees, who have not been convicted of any crimes, retain at least those constitutional rights that we have held are enjoyed by convicted prisoners”); see also City of Revere v. Massachusetts Gen. Hosp., 463 U.S. 239, 244 (1983) (a pretrial detainee's due process rights are said to be “at least as great as the Eighth Amendment protections available to a convicted prisoner.”).
Plaintiff alleges that his Fourteenth Amendment rights were violated when Defendants failed to protect his safety. Prison officials have a duty to provide humane conditions of confinement, which includes taking reasonable measures to guarantee the safety of inmates. See Farmer v. Brennan, 511 U.S. 825, 832-33 (1994). Courts have found that prison officials have a duty “to protect prisoners from violence at the hands of other prisoners.” Id. at 833 (internal quotations omitted). “Being violently assaulted in prison is simply ‘not part of the penalty that criminal offenders pay for their offenses against society.'” Id. at 834 (quoting Rhodes v. Chapman, 452 U.S. 337, 347 (1981)).
In order to state a failure to protect claim, a plaintiff must establish that the conditions of his incarceration posed a substantial risk of serious harm, the prison official acted with deliberate indifference to that substantial risk of serious harm, and the official's deliberate indifference caused the harm. See Farmer, 511 U.S. at 834. Deliberate indifference in this context requires a plaintiff to show that prison officials “must actually [have been] aware of the existence of the excessive risk; it is not sufficient that [prison officials] should have been aware.” Beers-Capitol v. Whetzel, 256 F.3d 120, 133 (3d Cir. 2001). “However, subjective knowledge on the part of the official can be proved by circumstantial evidence to the effect that the excessive risk was so obvious that the official must have known of the risk.” Id. at 133 (citing Farmer, 511 U.S. at 844). The negligent failure to protect an inmate from assault by another prisoner, however, does not rise to the level of a constitutional violation. Davidson v. Cannon, 474 U.S. 344, 347-48 (1986); see also Dunlap v. Nicklow, Civ. A. No. 19-0658, 2020 WL 1922629, at *3 (M.D. Pa. Apr. 21, 2020).
The United States Court of Appeals' discussion in Bistrian v. Levi is instructive here. 696 F.3d 352, 370-71 (3d Cir. 2012), abrogated on other grounds by Mack v. Yost, 968 F.3d 311 (3d Cir. 2020). In Bistrian, a pretrial detainee was locked in a recreation pen with two inmates with known histories of violent assaults against other inmates. The pretrial detainee alleged that prison officials were deliberately indifferent to a substantial risk of serious harm when he was seriously injured by these inmates. The Court of Appeals held that while plaintiff stated a failure to protect claim against an inmate who he knew and who had threatened him for cooperating with prison officials as an informant, he failed to state a claim as to another inmate who had no personal relationship with plaintiff and who had no connection to his work as an informant. 696 F.3d at 370-71. The Third Circuit concluded that the risk that “an inmate with a history of violence might attack another inmate for an unknown reason” was too speculative to state a claim of deliberate indifference. Id. at 371.
In Kornegey v. City of Philadelphia, 299 F.Supp.3d 675, 680-81 (E.D. Pa. 2018), the court followed the reasoning of Bistrian. In Kornegey, the day before the assault on the plaintiff inmate, the same inmate who attacked plaintiff had injured another inmate. Plaintiff alleged that the prison officials knew that the assault on the first inmate was unprovoked and not based on personal animus. Yet, the prison officials took no action to segregate the victim of the first assault from the general population. Id. at 678. Citing to Bistrian, the Kornegey court noted that “a claim of deliberate indifference may not be based solely on ‘the risk that an inmate with a history of violence might attack another inmate for an unknown reason[.]'” Id. See also Williams v. Del. Cnty. Bd. of Prison Inspectors, 844 Fed.Appx. 469, 475 (3d Cir. 2021) (allegations that plaintiff prisoner was housed on the same block as maximum-security inmates and escorted through spaces occupied by them, and his allegation that he was housed in the same cell with maximum-security inmates, including a “super max” prisoner were too speculative to make out a failure to protect claim); Casiano v. Russell, No. 5:21-cv-918, 2021 WL 872438, at *4 (E.D. Pa. March 3, 2021) (citing Williams, 844 Fed.Appx. at 475) (“Being housed with inmates who committed serious crimes or who have generally exhibited violent tendencies in the past, without more, does not plausibly establish that an inmate was incarcerated under substantial risk of serious harm sufficient to state a failure to protect claim.”).
1. Defendants Fleisner, Greenwalt, Holland, Bosi, Milicevic and Gerber
Defendants Fleisner, Greenwalt, Holland, Bosi, Milicevic and Gerber were not present during Mitchell's May 30, 2019 attack on Jubeck. According to Plaintiff, however, they were on duty during Mitchell's prior assaults. Defendants Fleisner, Greenwalt, Holland and Bosi were on duty on October 18, 2018 when Mitchell punched another inmate. ECF No. 11 ¶ 40. Defendants Milicevic and Gerber were on duty on May 27, 2019 when Mitchell attacked a different inmate. Id. ¶¶ 54-56. Plaintiff alleges that these defendants violated Plaintiff's constitutional rights because they performed inadequate investigations and documentation of the assaults that preceded Mitchell's assault on Plaintiff. ECF No. 11 ¶¶ 59-70.
The motion to dismiss as to these six defendants should be granted. Plaintiff has not alleged that they were personally involved in the circumstances relating to the attack on Plaintiff. Defendants argue that, at most, Plaintiff alleges that these defendants were negligent in conducting their investigations of the prior attacks and in documenting the attacks. The Court agrees. Plaintiff alleges that certain corrective/disciplinary/reporting measures were taken by them in response to the two prior attacks. He argues, however, that they should have done more to prevent any future attacks. Yet, Plaintiff alleges no facts to suggest the existence of any relationship between Mitchell and himself that would have placed these defendants on notice that Jubeck would be the victim of an attack by Mitchell. See Bistrian, 696 F.3d at 370-71. Simply put, Plaintiff's allegations fall well below the deliberate indifference standard required to sustain a failure to protect claim. Therefore, the claims against Defendants Fleisner, Greenwalt, Holland, Bosi, Milicevic and Gerber should be dismissed.
This Court recognizes that the United States Court of Appeals for the Third Circuit has held that, in civil rights cases, a court must afford plaintiff the opportunity to amend a deficient complaint-regardless of whether the plaintiff requests to do so-when dismissing a case for failure to state a claim, unless doing so would be inequitable or futile. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 482 F.3d 247, 251 (3d Cir. 2007). Given that Plaintiff lacks an arguable basis in law for this § 1983 claim, any attempt to amend would be futile. Therefore, the Court recommends that the claims against these Defendants be dismissed with prejudice.
2. Defendants Jackson, Gildea and Firestine
a. Failure to Protect
Plaintiff alleges that Defendants Jackson and Gildea were the officers on duty on pod 4A when Mitchell attacked Plaintiff on May 30, 2019. He further claims that Mitchell surrendered to Defendant Corrections Officer Firestine who removed Mitchell from the scene. Taking all of Plaintiff's allegations as true, these defendants, at most, would have known that Mitchell attacked another inmate on May 27th, and another during the previous October. The Court of Appeals decision in Bistrian, however, made clear that the risk that “an inmate with a history of violence might attack another inmate for an unknown reason” is far too speculative to meet the state of mind requirement of deliberate indifference by prison officials. 696 F.3d at 371, discussed in, Williams 844 Fed.Appx. at 475. Plaintiff alleges no facts to suggest that Defendants Jackson, Gildea or Firestine knew of any contact between Plaintiff and Mitchell such that they would have reason to suspect Mitchell would attack Jubeck. This is fatal to Plaintiff's claim against them. Thus, the motion to dismiss the failure to protect claim against Defendants Jackson, Gildea and Firestine should be granted.
b. Failure to Intervene
Plaintiff also attempts to state a failure to intervene claim against Defendants Jackson, Gildea and Firestine. In Bistrian, the Court of Appeals extended its holding in Smith v. Mensinger to inmate-on-inmate attacks. Bistrian, 696 F.3d at 371. That is, in Mensinger, the Court of Appeals “held that a corrections officer who fails to intervene when other officers are beating an inmate may be liable on a failure-to-protect claim if the officer had a ‘realistic and reasonable opportunity to intervene' and ‘simply refused to do so.'” Id. (quoting Mensinger, 293 F.3d 641, 650-51 (3d Cir. 2002)). The Bistrian court noted that if a corrections officer witnesses an inmate-on-inmate assault and fails to intervene, “‘his actions would seemingly constitute a paradigm case of deliberate indifference.'” Id. (quoting Grieveson v. Anderson, 538 F.3d 763, 778 (7th Cir. 2008)).
Here, the Amended Complaint incorporates the video of the May 30, 2019 attack. Upon review, the Court notes that during the attack, corrections officers immediately ran to the sally port. Mitchell then surrenders to Firestine, is taken out of the sally port, and medical assistance is rendered immediately thereafter to Plaintiff. Plaintiff argues that Jackson witnessed the attack but failed to intervene in a timely manner such that he allowed Mitchell to continue to assault Plaintiff after he was rendered unconscious. The video, however, reflects that the response of the corrections officers was swift and reasonable under the circumstances. Plaintiff further argues that Jackson and Gildea should have intervened in not placing Mitchell in the sally port with Jubeck in the first place. As discussed above, however, their action in placing the two together does not rise to the level of deliberate indifference. Therefore, it is recommended that the motion to dismiss all claims against Defendants Jackson, Gildea and Firestine be granted. Again, any attempt to amend would be futile as a matter of law and all claims against these Defendants should be dismissed with prejudice.
The allegations of the Amended Complaint indicate that John Doe was involved in the events of May 30, 2019. Plaintiff alleges he “was one of the correctional officers who allowed the other inmates to exit the sally port.” For the reasons discussed as to Defendants Jackson, Gildea and Firestine, Defendant John Doe should be dismissed as a party Defendant as well.
3. Stephanie Frank
Neither Plaintiff nor Defendants advance any argument as to Defendant Stephanie Frank. In the Amended Complaint, Plaintiff's sole allegations against Defendant Frank are as follows:
24. Defendant, STEPHANIE FRANK, is employed by Allegheny County and is a captain at the ACJ (hereinafter “Defendant FRANK”). At all relevant times, Defendant FRANK acted under color of state law and in accordance with the policies, customs and practices of the ACJ. Defendant is sued in his [sic] individual capacity. She is responsible for managing, implementing dspolicy, supervising, making rounds, filing misconducts, recommending criminal charges, investigation inmates, placing inmates in sally ports with other inmates, and/or other relevant activity to provide adequate safety and protection to inmates from other inmates.
Amended Complaint, ECF No. 11 ¶ 24. The Complaint fails to allege that Defendant Frank was personally involved in the events at issue, nor does it allege any other basis that could subject her to liability. Therefore, it is recommended that she be dismissed as a party defendant. Any attempt to amend would be futile in light of the Court's above analyses.
4. Supervisory Liability of Hungerman, Zetwo, Beasom, and Thomas
In a § 1983 civil rights action, a government official is only liable for his or her own misconduct. Iqbal, 556 U.S. at 677. However, “it is not enough for a plaintiff to argue that the constitutionally cognizable injury would not have occurred if the superior had done more than he or she did.” Sample v. Diecks, 885 F.2d 1099, 1118 (3d Cir. 1989).
The Third Circuit has identified two general ways in which a supervisor-defendant may be liable for unconstitutional acts undertaken by subordinates. First, liability may attach if they, “with deliberate indifference to the consequences, established and maintained a policy, practice or custom which directly caused [the] constitutional harm.” A.M. ex rel. J.M.K. v. Luzerne Cnty. Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (alteration in original) (quoting Stoneking v. Bradford Area Sch. Dist., 882 F.2d 720, 725 (3d Cir. 1989)). Second, “a supervisor may be personally liable under § 1983 if he or she participated in violating the plaintiff's rights, directed others to violate them, or, as the person in charge, had knowledge of and acquiesced” in the subordinate's unconstitutional conduct. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1190-91 (3d Cir. 1995)).
In Sample v. Diecks, the Third Circuit Court of Appeals recognized that “‘supervision' entails, among other things, training, defining expected performance by promulgating rules or otherwise, monitoring adherence to performance standards, and responding to unacceptable performance whether through individualized discipline or further rulemaking.” 885 F.2d at 1116. Sample involved an Eighth Amendment claim against a supervisor for implementing deficient policies and being deliberately indifferent to the risk that the policies would result in the deprivation of a constitutional right. Id.; see also Beers-Capitol v. Whetzel, 256 F.3d 120, 133-34 (3d Cir. 2001) (discussing Sample). The Court developed a four-part test for determining whether an official may be held liable on a claim for failure to supervise. The plaintiff must identify a supervisory policy or practice that the supervisor failed to employ, and then prove that: (1) the policy or procedures in effect at the time of the alleged injury created an unreasonable risk of a constitutional violation; (2) the defendant-official was aware that the policy created an unreasonable risk; (3) the defendant was indifferent to that risk; and (4) the constitutional injury was caused by the failure to implement the supervisory practice or procedure. Sample, 885 F.2d at 1118; Brown v. Muhlenberg Twp., 269 F.3d 205 (3d Cir. 2001). In this Circuit, when a plaintiff seeks to hold a defendant liable under the Eighth Amendment in his or her role as a supervisor, “Sample's four-part test provides the analytical structure . . ., it being simply the deliberate indifference test applied to the specific situation of a policymaker.” Beers-Capitol, 256 F.3d at 135.
Here, Plaintiff alleges that Supervisors Hungerman, Zetwo, Beasom, and Thomas were deliberately indifferent to the violations of his constitutional rights. Specifically, Plaintiff alleges that these supervisory defendants failed to implement a policy or procedure that:
separated inmates of maximum classifications with inmates of minimum classification when held or transferred through a pod's sally ports even though the defendants and Allegheny County knew based upon their own classification policy and procedure that a substantial risk of harm was presented to the lower classified inmates from the maximum classified inmates.
Amended Complaint, ECF No. 11 ¶ 98.
In support of this allegation, Plaintiff directs the Court in his responsive brief to specific instances of inmate-on-inmate violence at the ACJ, and how these instances placed these defendants on notice that the procedure of not separating lower classified inmates from maximum classified inmates created an unreasonable risk of a constitutional violation. Plaintiff's Brief in Opposition to Motion to Dismiss, ECF No. 39 at 15-17. Plaintiff seeks to amend his complaint to include these instances that would have placed these defendants on notice (ECF No. 39 at 17). Thus, the Court recommends that Defendants' motion to dismiss Defendants Hungerman, Zetwo, Beasom and Thomas be granted without prejudice with leave to amend.
III. CONCLUSION
For these reasons, it is respectfully recommended that the Motion to Dismiss of Defendants Jason Beasom, Hermita Thomas, David Hungerman, Ian Jackson, Michelle Gildea, David Zetwo, Justin Firestine, Daniel Bosi, Heather Greenwalt, David Holland, Raymond Fleisner, Ivan Milicevic, Rich Gerber and Stephanie Frank be granted. Specifically, it is recommended that:
1. The motion to dismiss should be granted with prejudice as to Plaintiff's claims against Defendants Fleisner, Greenwalt, Holland, Bosi, Milicevic, Gerber, Frank, Jackson, Gildea and Firestine as amendment would be futile.
2. The motion to dismiss the supervisory liability claims against Defendants Hungerman, Zetwo, Beasom, and Thomas should be granted without prejudice and with leave to amend.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and (C), and Rule 72.D.2 of the Local Rules of Court, the parties are allowed fourteen (14) days from the date of service of a copy of this Report and Recommendation to file objections. Any party opposing the objections shall have fourteen (14) days from the date of service of objections to respond thereto. Failure to file timely objections will constitute a waiver of any appellate rights.