Opinion
Case No. 1:19-cv-00169 (Erie)
07-28-2020
JOSEPH SCOTT, Plaintiff v. MICHAEL CLARK, MELINDA ADAMS, VALERIA KUSIAK, KEVIN LANZT, CARL FRANZ, and STEVEN REILLY, Defendants
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION TO DISMISS ECF NO. 24 I. Recommendation
This matter was referred to the undersigned for a Report and Recommendation in accordance with the Federal Magistrates Act, 28 U.S.C. § 636, and Local Civil Rule 72.D. It is respectfully recommended that the Defendants' Motion to Dismiss (ECF No. 24) be GRANTED in part and DENIED in part. II. Introduction
Defendants Michael Clark, Melinda Adams, Valeria Kusiak, Kevin Lanzt, Carl Franz, and Steven Reilly (collectively, DOC Defendants) have moved to dismiss Plaintiff Joseph Scott's Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 24. Scott, an inmate at the State Correctional Institution at Albion, began this litigation with the filing of a motion to proceed in forma pauperis, which this Court granted. See ECF No. 1, ECF No. 2. His original complaint was filed some time later. ECF No. 7. He then filed an Amended Complaint, which is the operative pleading. ECF No. 10. Scott's claims arise from injuries he sustained when he was assaulted by another inmate. Scott has filed a Response in Opposition to the DOC Defendants' motion to dismiss. ECF No. 29. The matter is now ready for disposition. III. Standards
A. Motions to Dismiss
A motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of the complaint. Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In deciding a motion to dismiss, the court is not deciding whether a plaintiff is likely to prevail on the merits; instead, the plaintiff must only present factual allegations sufficient "to raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007) (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). See also Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 173 L. Ed.2d 868 (2009). A complaint should be dismissed only under Rule 12 (b)(6) if it fails to allege "enough facts to state a claim to relief that is plausible on its face." Twombly, 550 U.S. at 570, 127 S. Ct. 1955 (rejecting the traditional Rule 12 (b)(6) standard established in Conley v. Gibson, 355 U.S. 41, 78 S. Ct. 99, 2 L.Ed.2d 80 (1957)). A court must accept as true all well-pled factual allegations in the complaint and view them in a light most favorable to the plaintiff in making this determination. Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009); U.S. Express Lines Ltd. v. Higgins, 281 F.3d 383, 388 (3d Cir. 2002).
While a complaint does not need detailed factual allegations to survive a motion to dismiss, a complaint must provide more than labels and conclusions. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. A "formulaic recitation of the elements of a cause of action will not do." Id. (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed.2d 209 (1986)). Moreover, a court need not accept inferences drawn by a plaintiff if they are unsupported by the facts in the complaint. See California Pub. Employee Ret. Sys. v. The Chubb Corp., 394 F.3d 126, 143 (3d Cir. 2004) (citing Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir. 1997)). Nor must a court accept legal conclusions disguised as factual allegations. Twombly, 550 U.S. at 555, 127 S. Ct. 1955. See also McTernan v. City of York, Pennsylvania, 577 F.3d 521, 531 (3d Cir. 2009) ("The tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.").
Expounding on the Twombly/Iqbal line of cases, the Third Circuit has articulated the following three-step approach:
First, the court must "tak[e] note of the elements a plaintiff must plead to state a claim." Second, the court should identify allegations that, "because they are no more than conclusions, are not entitled to the assumption of truth." Finally, "where there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."Burtch v. Milberg Factors, Inc., 662 F.3d 212, 221 (3d Cir. 2011) (quoting Santiago v. Warminster Twp., 629 F.3d 121, 130 (3d Cir. 2010)). This determination is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S. Ct. 1937.
Thus, when considering a Rule 12(b)(6) motion, the court's role is limited to determining whether a plaintiff may offer evidence in support of his claims. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 40 L.Ed.2d 90 (1974). The court does not consider whether a plaintiff will ultimately prevail. See id. A defendant bears the burden of establishing that a plaintiff's complaint fails to state a claim. See Gould Elecs. v. United States, 220 F.3d 169, 178 (3d Cir. 2000). In short, a motion to dismiss should not be granted if a party alleges facts, which could, if established at trial, entitle him to relief. Twombly, 550 U.S. at 563 n.8, 127 S. Ct. 1955.
B. Pro Se Litigants
For purposes of a motion to dismiss, a court must employ less stringent standards in considering pro se pleadings than when judging the work product of an attorney. Haines v. Kerner, 404 U.S. 519, 520 (1972). When presented with a pro se complaint, the court should construe the complaint liberally and draw fair inferences from what is not alleged as well as from what is alleged. Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003). Despite this liberality, pro se litigants are not relieved of their obligation to allege sufficient facts to support a cognizable legal claim. See, e.g., Taylor v. Books A Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir. 1996). Finally, the United States Court of Appeals for the Third Circuit in Phillips v. County of Allegheny has ruled that if a District Court is dismissing a claim under Fed. R. Civ. P. 12(b)(6) in a civil rights case, it must sua sponte "permit a curative amendment unless such an amendment would be inequitable or futile." 515 F.3d 224, 245 (3d Cir. 2008). IV. Discussion
A. Factual Background
Adhering to these principles then, the following recitation of the facts assumes the truth of the factual allegations in the Amended Complaint. Scott is currently incarcerated at SCI-Albion. While speaking to family members on the telephone, Scott was approached from behind and attacked by another inmate. ECF No. 10, ¶ 11. He was stabbed "multiple times in the face, head, neck, back, and chest." Id. ¶ 12. Scott's injuries were so severe that surgery was necessary to remove part of a pen from his face. Id. He asserts that he was dissuaded from making a report about this assault because "no staff was at their post on the block. They were all relaxing in the control booth, while block out was going on." Id. ¶ 13. Scott "was seen by medical and was informed that inmate Stratton Peay DP-4246 was the person who assaulted me." Id. ¶ 15. Along with his other injuries, the medical department diagnosed Scott with a concussion. Id. ¶ 16.
As for his assailant, Scott asserts that "[i]nmate Peay was placed in a part of the Restricted Housing Unit called the D.T.U. at least twice within the sixty days preceding this incident" for "assaultive behavior." Id. ¶ 19. He also claims that "Inmate Peay is said to have forty-three (43) prior assaults and defendant's (sic) had foreknowledge that putting inmate Peay on the RTU that (sic) it would endanger all inmates on that unit because the RTU is a block for inmates who need more support and protection." Id. ¶ 20.
Although Scott does not define the "D.T.U.," other courts have noted that the "DTU [is] a "designed unit for seriously mentally ill inmates who have received institutional misconduct reports, but need mental health intervention and treatment provided by trained professionals in an in-patient secure setting." Bracey v. Link, 2019 WL 251853, at *2 (E.D. Pa. Jan. 16, 2019).
B. Legal Claims
Although Scott's Amended Complaint does not invoke a specific constitutional provision, the Court construes his allegations as raising claims under the Eighth and Fourteenth Amendments. Specifically, the facts alleged in the Amended Complaint raise an Eighth Amendment failure to protect claim (id. ¶ 23); an Eighth Amendment failure to train claim (id. ¶ 22); and a state-created danger claim brought under the Fourteenth Amendment's substantive due process guarantee (id. ¶¶ 20-21, 24). Each of these claims will be discussed individually, beginning with the failure to protect claim.
Defendants contend that this action should be dismissed in its entirety because Scott failed to allege sufficient facts to support their personal involvement in any alleged wrongdoing. See ECF No. 25, pp. 3-5. The Court should reject that basis for dismissal. "Personal involvement can be shown through allegations of personal direction or of actual knowledge and acquiescence" in the challenged practice. Robinson v. Southers, 2017 WL 11479028, at *8 (M.D. Pa. Nov. 8, 2017), report and recommendation adopted in part, rejected in part, 2019 WL 7163435 (M.D. Pa. Dec. 20, 2019) (quoting Argueta v. U.S. ICE, 643 F.3d 60, 72 (3d Cir. 2011). Here, the Amended Complaint specifically alleges that each defendant was a member of the prison's "Program Review Committee" or "PRC," knew about Peay's violent tendencies, and continually released him to the general prison population, including twice within the sixty days before Peay's attack on the plaintiff. See ECF No. 10, ¶24 ("All the defendant's (sic) were on the program review committee and kept releasing inmate Peay back to Population when inmate Peay kept assaulting other inmates."). Membership on a prison's program review committee can be enough to allege personal involvement. See, e.g. Johnston v. Wetzel, 431 F. Supp. 3d 666, 681 (W.D. Pa. 2019) (Superintendent and a member of the Program Review Committee personally interacted with and observed Johnston and voted against his release, which constituted personal involvement); Fennell v. Wetzel, 2019 WL 1264898, at *10 (M.D. Pa. Jan. 18, 2019), report and recommendation adopted, 2019 WL 1255183 (M.D. Pa. Mar. 19, 2019); Whitney v. Wetzel, 2015 WL 632493, at *4 (M.D. Pa. Feb. 13, 2015) (PRC members' personal observation of plaintiff being housed in an excessively cold cell and failure to take any appropriate action in response to the inmate's complaint could allege defendants' personal involvement defendant in deliberate indifference to an apparent safety).
C. The Amended Complaint States a Plausible Eighth Amendment Failure to Protect Claim.
"[T]he Eighth Amendment's Cruel and Unusual Punishments Clause imposes on prison officials 'a duty to protect prisoners from violence at the hands of other prisoners.'" Bistrian v. Levi, 696 F.3d 352, 366 - 67 (3d Cir. 2012) (quoting Farmer v. Brennan, 511 U.S. 825, 833, 114 S. Ct. 1970, 1976, 128 L.Ed.2d 811 (1994)). Prison officials must take reasonable measures to do so. Farmer, 511 U.S. at 833, 114 S. Ct. at 1976. "Being violendy assaulted in prison is simply not 'part of the penalty that criminal offenders pay for their offenses against society." Id. at 834, 114 S. Ct. at 1977 (quoting Rhodes v. Chapman, 452 U.S. 337, 347, 101 S. Ct. 2392, 2399, 69 L.Ed.2d 59 (1981)). Still, prison officials do not incur constitutional liability for every injury suffered by a prisoner. Id.
Two factual scenarios can give rise to a failure to protect claim in an inmate-on-inmate assault case. First, such claims may arise where prison officials fail to respond to a particularised threat. Second, a failure to protect claim can also arise when a prisoner is assaulted as a result of conditions or practices dangerous to all prisoners or an identifiable group of them. See Farmer, 511 U.S. at 843. Scott alleges the second type of case because he makes no allegation of a particularized threat from inmate Peay. Instead, the Amended Complaint assert that despite their knowledge that inmate Peay had a record of some forty-three prior assaults, the Defendants placed him in a unit which "would endanger all inmates on that unit." ECF No. 10, ¶ 20, p. 6.
To state a cognizable failure to protect claim under § 1983, two conditions must be met. First, where, as in this case, the claim turns on a "failure to prevent harm, the inmate must show that he is incarcerated under conditions posing a substantial risk of harm." Id. (citing Helling v. McKinney, 509 U.S. 25, 35 (1993)). Second, the inmate must show that prison officials acted with deliberate indifference to the safety of the inmate. Id. See also Zuniga v. Chamberlain, 2020 WL 4188029, at *2 n.8 (3d Cir. July 21, 2020). The test for deliberate indifference is twofold: "the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and he must also draw the inference." Farmer, 511 U.S. at 837.
The Court should conclude that Scott's Amended Complaint satisfies the first prong of this inquiry. He makes a plausible allegation that the DOC Defendants knew or should have known that Peay posed a risk to inmate safety before the assault on Scott. The Amended Complaint alleges that there were previous problems with inmate Peay and that he had a history of violence. Compare with Proctor v. James, 811 Fed. Appx 125 (3d Cir. 2020) (holding complaint failed to state a claim where plaintiff did not allege that the defendants knew or should have known that the assaulting inmate posed a risk to the plaintiff's safety before the assault, or did not allege that the assaulting inmate had any history of violent assaults). See also Brown v. CEC, et al. 2020 WL 4193014, at *4 (E.D. Pa. July 21, 2020). Indeed, the DOC Defendants do not dispute that Scott was the victim of a violent attack by another inmate. And his injuries, as alleged, were serious. Thus, the allegations of the Amended Complaint sufficiently plead that Scott was put at substantial risk of serious harm. See, e.g., McGlinchey v. Lane, 2020 WL 2513536, *2 (W.D. Pa. May 15, 2020).
The DOC Defendants argue that Scott has failed to satisfy the second, deliberate indifference prong because he has failed to show that they had particularized knowledge that there was a risk to Scott. But the United States Supreme Court held in Farmer that an inmate could show deliberate indifference not only by showing that prison officials failed to respond to a particularized threat to the complaining plaintiff, but also "by showing that a substantial risk of inmate attacks was longstanding, pervasive, well-documented, or expressly noted by prison officials in the past, and the circumstances suggest that the defendant-official being sued had been exposed to information concerning the risk." Farmer, 511 U.S. at 842.
The Amended Complaint alleges that the assaulting inmate, Peay, was placed in restrictive housing "at least twice within the sixty days preceding" his attack on Scott but was "immediately released" into the general population by the Program Review Committee. ECF No. 10, ¶ 19. The Amended Complaint also asserts that the DOC Defendants had prior knowledge of forty-three incidents of assault committed by Peay yet they continued to release him to the general population where he attacked and injured Scott. Id. ¶ 20. Finally, Scott alleges that all the Defendants were members of the Program Review Committee and continued to release Peay into the general population despite their knowledge of his propensity for violence. Id. ¶ 24.
In his brief in opposition to the motion to dismiss, Scott states that inmate Peay "had over fifty prior assaults. Three of which were within the last thirty days prior to assaulting the plaintiff." ECF No. 29, ¶ 5. Because this claim should proceed, it is assumed that the parties will uncover information which may resolve this discrepancy. For purposes of this Report however, the undersigned assumes the allegations in the Amended Complaint as true, not those alleged in Scott's memorandum in opposition.
Scott's factual allegations distinguish this case from recent decisions dismissing a failure to protect claim at the pleadings stage of the litigation. For example, the Court of Appeals for the Third Circuit recently affirmed the dismissal of a complaint when a plaintiff failed to allege that there were any previous problems between inmates or that the perpetrator of the assaults had a history of violent attacks. See Proctor v. James, No. 18-1698, 2020 WL 2065948, at *2 (3d Cir. Apr. 29, 2020). Likewise, this Court found a failure to protect claim lacking where the plaintiff failed to allege that "prior to the assault, . . . any other prison official was aware of facts that would have led a reasonable person to believe that [the plaintiff's] personal safety was at risk." Grier v. Clark, 2020 WL 2105859, at *6 (W.D. Pa. Apr. 7, 2020), report and recommendation adopted, 2020 WL 2104794 (W.D. Pa. May 1, 2020). But here, Scott's claim is supported by specific factual averments, including the number of prior assaults committed by the offending inmate and the PRC's knowledge of inmate Peay's propensity for violence. Thus, Scott's allegations are not mere speculation of the kind previously considered insufficient. See Myer v. Giroux, 2018 WL 6831147, at *8 (W.D. Pa. Dec. 28, 2018) (finding allegations of an inmate's propensity for violence to represents the type of speculative entreaty that the Third Circuit and other courts have routinely found inadequate to support an Eighth Amendment claim); Bistrian, 696 F.3d at 369-71 (rejecting an inference of deliberate indifference based solely on a prison official's awareness of a particular inmate's propensity for violence).
Thus, the Court should find that Scott's Amended Complaint alleges enough to support a plausible failure to protect claim against each of the DOC Defendants. Discovery may well reveal facts that belie an inference that individual DOC Defendants acted with deliberate indifference, but at this stage of litigation, the allegations of the Amended Complaint must be accepted as true and all reasonable inferences must be drawn in Scott's favor. So then, this claim should survive the DOC Defendants' motion and proceed to the next stage of litigation.
D. The Amended Complaint Fails to State a Plausible "Failure to Train" Claim.
The Supreme Court has recognized a cause of action for failure to train or discipline employees under § 1983 where the need for different or additional training was apparent and the defendant's failure to respond to this need amounted to a "deliberate indifference to the rights of [others]." City of Canton, Ohio v. Harris, 489 U.S. 378, 389 (1989). "Deliberate indifference" in this context is an objective standard and thus differs from the subjective deliberate indifference standard applied under the Eighth Amendment. See Farmer, 511 U.S. at 840-847. Canton teaches that the failure to train an employee must be a choice on the part of the supervisor or supervising entity knowing that the training that is (or is not) being provided is not sufficient for the employees and the choices they encounter on the job. 489 U.S. at 388-90.
To maintain a claim for failure to properly train or discipline, a plaintiff must show that "a responsible municipal policymaker had contemporaneous knowledge of the offending occurrence or knowledge of a pattern of prior incidents of similar violations of constitutional rights and failed to take adequate measures to ensure the particular right in question or otherwise communicated a message of approval to the offending subordinates." Garcia v. Cnty. of Bucks, Pa, 155 F. Supp. 2d 259, 268 (E.D. Pa. 2001) (citations omitted). "A pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for . . . failure to train." Simpson v. Ferry, 2016 WL 4247546, at *7 (E.D. Pa. Aug. 10, 2016) (internal quotation marks and further quotations omitted). "A need for training or other corrective action to avoid imminent deprivations of a constitutional right must be so apparent that any reasonable policymaker or supervisor would have taken appropriate preventive measures." Garcia, 155 F. Supp. 2d at 268. A failure to train claim also requires a plaintiff to identify specific training not provided that could reasonably be expected to prevent the injury that occurred. Joines v. Twp. of Ridley, 229 Fed. Appx. 161, 163 (3d Cir. 2007). Scott has not alleged facts to support any of the requirements necessary to support a failure to train claim.
The Amended Complaint does not allege facts to show a pattern of similar constitutional violations by untrained employees. Scott cannot rely upon the alleged failures relating to inmate Peay alone to show such a pattern. "Generally, deficient training can only amount to the requisite deliberate indifference 'where the failure to train has caused a pattern of violations.'" Tirado v. Montgomery Cty., Pa., 2013 WL 1285487, at *7 (E.D. Pa. Mar. 29, 2013) (quoting Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir.2000)). And it is not enough for Scott to allege in conclusory terms that "all of the defendants either disregarded or failed to receive or failed to give training for the RTU, dealing with mental health inmates, ability to recognize and deal with crisis, and ability to stay on their post until relieved." ECF No. 10, ¶ 22. See Yoast v. Pottstown Borough, 437 F. Supp. 3d 403, 431 (E.D. Pa, 2020). He must identify a specific training deficiency or deficiencies that led directly to his injury. Id.; Joines, 229 Fed. Appx. at 163. He has failed to do so. Finally, Scott has not adequately identified any "municipal policymaker" responsible for the training of subordinates. Although Scott identifies certain of the DOC Defendants as members of the PRC and recites that they had some training responsibilities, such allegations do not elevate any of these individuals to the status of a "policymaker" responsible for formulating and adopting training policies. Yoast, 437 F. Supp. 3d at 431. Accordingly, it is recommended that the Court dismiss Scott's failure to train claim, without prejudice.
Courts are cautioned that because of the liberal pleading standard, a plaintiff should generally be granted leave to amend before dismissing a claim that is merely deficient. See Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002). The federal rules allow for liberal amendments given the "principle that the purpose of pleading is to facilitate a proper decision on the merits." Foman v. Davis, 371 U.S. 178, 182 (1962) (citations and internal quotations omitted). The Court may deny a motion to amend where there is "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of the amendment." Id. The Court should also determine that a proposed amendment would be futile if the complaint, as amended, would not survive a motion to dismiss for failure to state a claim. In re NAHC, Inc. Sec. Litig., 306 F.3d 1314, 1332 (3d Cir. 2002). Here, despite its many deficiencies, it cannot be said that amendment would necessarily be futile as to Scott's failure to train claim.
E. The State-Created Danger Claim Should be Dismissed.
Lastly, the Defendants posit that Scott is asserting a "state created danger claim" under the Fourteenth Amendment. See ECF No. 25, pp. 5-6. Scott's Amended Complaint states that "[a]ll defendant's (sic) knew of and disregarded a potentially life-threatening situation by not only putting inmate Peay on the RTU." ECF No. 10, ¶ 20. Although the vague language of this allegation leaves the Court skeptical that Scott intended to raise such a claim, even if it can be so construed, the claim should be dismissed.
The Court of Appeals for the Third Circuit has addressed the application of the state-created danger doctrine to the prison context. See Beenick v. LeFebvre, 684 Fed. Appx. 200 (3d Cir. Apr. 11, 2017) (citing Betts v. New Castle Youth Development Ctr, 621 F.3d 249, 259-60 (3d Cir. 2010)). The Court of Appeals determined that such claims are barred by the more-specific-provision rule. See id. Scott's purported state-created danger claim concerns his conditions of confinement and an alleged failure by the Defendants to ensure his safety. The Court of Appeals has explained that "[b]ecause these allegations fit squarely within the Eighth Amendment's prohibition on cruel and unusual punishment, . . . the more-specific-provision rule forecloses . . . substantive due process claims," such as state-created danger allegations. Beenick, 684 Fed. Appx. at 205 (quoting Betts, 621 F.3d at 261); see also B.L. v. Lamas, (M.D. Pa. Feb. 14, 2017). This holding precludes Scott from bringing a state-created danger claim based on the conditions of his confinement and the alleged failure of Defendants to ensure his safety. See Nunez v. Wertz, 2017 WL 3868524, at *14 (M.D. Pa. Sept. 5, 2017). For these reasons, the Court should dismiss Scott's state-created danger claim, with prejudice. Dismissal is recommended without leave to amend because any amendment to this claim would be futile. V. Conclusion
In summary, the undersigned respectfully recommends that the DOC Defendants' Motion to Dismiss be GRANTED in part and DENIED in part as follows:
1. Scott's failure to train claim should be dismissed, without prejudice to his right to file a further amended complaint as to this claim;VI. Notice of the Parties
2. Scott's state-created danger claim, as construed, should be dismissed with prejudice; and
3. Defendants' motion should be denied in all other aspects.
In accordance with the applicable provisions of the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) & (C), and Rule 72.D.2 of the Local Rules of Court, the Plaintiff has fourteen (14) days from the date of the service of this Report and Recommendation to file written objections thereto. A failure to file timely objections will constitute a waiver of any appellate rights. See Perry v. Miller, 2016 WL 836209, at *6 (W.D. Pa. Feb. 12, 2016), report and recommendation adopted, 2016 WL 826054 (W.D. Pa. Mar. 3, 2016).
Submitted to the Court this 28th day of July, 2020.
/s/_________
RICHARD A. LANZILLO
United States Magistrate Judge