Opinion
CIVIL 3:18-CV-1725
04-01-2021
STEVE BARTNICKI Plaintiff, v. SCRANTON SCHOOL DISTRICT, et al., Defendants.
Judge Mannion
REPORT AND RECOMMENDATION
MARTIN C. CARLSON UNITED STATES MAGISTRATE JUDGE
I. INTRODUCTION
This is a civil rights case which seeks to hold an individual defendant personally liable for violating the First Amendment based upon the plaintiff's subjective interpretation of a shrug. Finding that much more is needed to establish constitutional tort liability, we recommend that the defendant's motion for summary judgment be granted.
This case comes before us for consideration of a motion for summary judgment. (Doc. 50). The plaintiff, Steve Bartnicki, brought the instant suit against the defendants, alleging violations pursuant to 42 U.S.C. § 1983 involving alleged retaliation for exercising his First Amendment rights, as well as state law claims for defamation and false light invasion of privacy against his employer-Scranton School District (“SSD”)-and the superintendent of the school district, Dr. Alexis Kirijan.
A motion to dismiss was previously granted in part and denied in part (Doc. 55). As such, the only remaining claims are Bartnicki's First Amendment retaliation claims against SSD and Dr. Kirijan for failing to place him in the Honors program and failing to hire him for the soccer coach position. Bartnicki claims that these adverse actions were taken in retaliation for his being a vocal critic of Dr. Kirijan and SSD in their handling of various matters. Bartnicki asserts that he was qualified to both teach in the Honors program and to be a soccer coach. For their part, the defendants assert that they are entitled to summary judgment as to Dr. Kirijan on both of these claims because Bartnicki has not provided any evidence that Dr. Kirijan had any personal involvement in either of these decisions. Additionally, they argue that Bartnicki is not entitled to punitive damages because he has not shown any reckless or callous behavior on Dr. Kirijan's part and that SSD is a municipal entity, against which punitive damages are not available.
The defendants' motion only addresses these claims as to Dr. Kirijan. Thus, to the extent these claims are brought against the school district, those claims will remain.
After a review of the record, we find that there are no genuine issues of material fact with respect to either of the remaining retaliation claims as to Dr. Kirijan or the demand for punitive damages. Accordingly, for the reasons set forth below, we will recommend that the motion for summary judgment be granted.
After this case was referred to us to complete a Report and Recommendation, Bartnicki filed a supplemental exhibit (Doc. 61) consisting of criminal charges filed against Dr. Kirijan, intending to demonstrate her authority as a school superintendent. The defendants then filed a motion to strike the document (Doc. 62), which was fully briefed (Docs. 63, 64, 65, 66, 67). Because we conclude that the motion for summary judgment should be granted without considering the supplemental exhibit, the motion to strike (Doc. 62) is moot.
II. BACKGROUND
Viewed in a light most favorable to the plaintiff, the evidence reveals that Steve Bartnicki has been employed by the Scranton School District since August of 2004. (Doc. 52-1, at 12-13). Dr. Kirijan has been the superintendent of the Scranton School District since March of 2015. (Doc. 52-4, at 4). Bartnicki has been a vocal critic of SSD and Dr. Kirijan, specifically accusing Dr. Kirijan of corruption, incompetence, and malfeasance. (Doc. 51, ¶¶ 3-4). In June of 2018, Bartnicki requested to teach an Honors class for the following school year but was not selected to do so. (Doc. 23, ¶ 19). Then, in August of 2018, Bartnicki applied for a position as an assistant soccer coach, but he was not selected for the position. (Doc. 23, ¶ 20).
Bartnicki asserts that when he spoke with Principal Lalli about not being assigned to teach an Honors class, Lalli “sort of put his hands up and shrugged” and stated that the decision was not up to him. (Doc. 52-1, at 27-28). On the basis of this gesture alone, Bartnicki interpreted this statement and body language to mean that he was passed over for the position because he was so outspoken against SSD and Dr. Kirijan. (Id.) Regarding his application to be a soccer coach, Bartnicki asserts that he was the more qualified applicant and that because he was already a teacher in the District, he should have been awarded the position. Therefore, Bartnicki contends that the denial of both of these positions was in retaliation for his vocal criticism of the district and administration.
The defendants maintain that Dr. Kirijan was not even involved in either of these hiring decisions. In support of this assertion, Principal Lalli submitted a sworn declaration stating that, as principal, he “possessed the exclusive right to make course assignments for teachers assigned to West Scranton High School, including for the 2017-2018 and 2018-2019 school year.” (Doc. 52-6, ¶ 2). The declaration further states that Dr. Kirijan “did not influence or have any role” in Bartnicki's class assignment. (Id., ¶ 6). Regarding the soccer coach position, the candidate who was selected had thirteen years of coaching experience and played soccer in high school and college. (Doc. 52-3, at 17). The score sheets from the interviews show that Bartnicki's total score was only 367, compared to the 472 points given to the candidate who was selected for the coaching position. (Id., at 4-13). Therefore, SSD and Dr. Kirijan assert that the reason Bartnicki was not chosen for the position is that he simply was not the most qualified candidate.
Bartnicki's second amended complaint, now the operative pleading in this case, was filed on December 18, 2018. The defendants filed a motion to dismiss, which was granted in part and denied in part on November 8, 2019. As a result, only the two retaliation claims relating to the Honors course and the soccer coach position remain. The SSD and Dr. Kirijan filed the instant motion for summary judgment on November 6, 2019, arguing, in relevant part, that Bartnicki failed to demonstrate that Dr. Kirijan was personally responsible for either hiring decision, and they are therefore entitled to summary judgment on these claim as against her. They further assert that punitive damages are not available against either the district or Dr. Kirijan. This motion has been fully briefed (Docs. 53, 58, 60) and is therefore ripe for resolution. For the following reasons, we recommend that this motion for summary judgment be granted.
III. DISCUSSION
A. Motion for Summary Judgment - Standard of Review
The defendant has moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, which provides that the court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Through summary adjudication, a court is empowered to dispose of those claims that do not present a “genuine dispute as to any material fact, ” Fed.R.Civ.P. 56(a), and for which a trial would be “an empty and unnecessary formality.” Univac Dental Co. v. Dentsply Int'l, Inc., No. 07-0493, 2010 U.S. Dist. LEXIS 31615, at *4 (M.D. Pa. Mar. 31, 2010). The substantive law identifies which facts are material, and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute about a material fact is genuine only if there is a sufficient evidentiary basis that would allow a reasonable fact finder to return a verdict for the non-moving party. Id., at 248-49.
The moving party has the initial burden of identifying evidence that it believes shows an absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of evidence to support the non-moving party's claims, “the non-moving party must rebut the motion with facts in the record and cannot rest solely on assertions made in the pleadings, legal memoranda, or oral argument.” Berckeley Inv. Group. Ltd. v. Colkitt, 455 F.3d 195, 201 (3d Cir. 2006), accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the non-moving party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden at trial, ” summary judgment is appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at 249. There must be more than a scintilla of evidence supporting the non-moving party and more than some metaphysical doubt as to the material facts. Id., at 252; see also Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In making this determination, the Court must “consider all evidence in the light most favorable to the party opposing the motion.” A.W. v. Jersey City Pub. Schs., 486 F.3d 791, 794 (3d Cir. 2007).
Moreover, a party who seeks to resist a summary judgment motion by citing to disputed material issues of fact must show by competent evidence that such factual disputes exist. Further, “only evidence which is admissible at trial may be considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers Ins. Co., 928 F.Supp. 474, 482 (D.N.J. 1995). Similarly, it is well-settled that: “[o]ne cannot create an issue of fact merely by . . . denying averments . . . without producing any supporting evidence of the denials.” Thimons v. PNC Bank, NA, 254 Fed.Appx. 896, 899 (3d Cir. 2007) (citation omitted). Thus, “[w]hen a motion for summary judgment is made and supported . . ., an adverse party may not rest upon mere allegations or denial.” Fireman's Ins. Co. of Newark New Jersey v. DuFresne, 676 F.2d 965, 968 (3d Cir. 1982); see Sunshine Books, Ltd. v. Temple University, 697 F.2d 90, 96 (3d Cir. 1982). “[A] mere denial is insufficient to raise a disputed issue of fact, and an unsubstantiated doubt as to the veracity of the opposing affidavit is also not sufficient.” Lockhart v. Hoenstine, 411 F.2d 455, 458 (3d Cir. 1969).Furthermore, “a party resisting a [Rule 56] motion cannot expect to rely merely upon bare assertions, conclusory allegations or suspicions.” Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985) (citing Ness v. Marshall, 660 F.2d 517, 519 (3d Cir. 1981)).
Finally, it is emphatically not the province of the court to weigh evidence or assess credibility when passing upon a motion for summary judgment. Rather, in adjudicating the motion, the court must view the evidence presented in the light most favorable to the opposing party, Anderson, 477 U.S. at 255, and draw all reasonable inferences in the light most favorable to the non-moving party. Big Apple BMW, Inc. v. BMW of North America, Inc., 974 F.2d 1358, 1363 (3d Cir. 1992). Where the non-moving party's evidence contradicts the movant's, then the non-movant's must be taken as true. Id. Additionally, the court is not to decide whether the evidence unquestionably favors one side or the other, or to make credibility determinations, but instead must decide whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. Anderson, 477 U.S. at 252; see also Big Apple BMW, 974 F.2d at 1363. In reaching this determination, the Third Circuit has instructed that:
To raise a genuine issue of material fact . . . the opponent need not match, item for item, each piece of evidence proffered by the movant. In practical terms, if the opponent has exceeded the “mere scintilla” threshold and has offered a genuine issue of material fact, then the court cannot credit the movant's version of events against the opponent, even if the quantity of the movant's evidence far outweighs that of its opponent. It thus remains the province of the fact finder to ascertain the believability and weight of the evidence.Id. In contrast, “[w]here the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation marks omitted); NAACP v. North Hudson Reg'l Fire & Rescue, 665 F.3d 464, 476 (3d Cir. 2011).
It is against these legal benchmarks that we assess the instant motion for summary judgment.
B. This Motion for Summary Judgment Should Be Granted.
As we have noted, Bartnicki asserts his claims pursuant to § 1983, arguing that he was retaliated against for exercising his right to free speech under the First Amendment. After a review of the record, we find that no genuine issues of material fact exist with respect to Bartnicki's claims against Dr. Kirijan or Bartnicki's entitlement to punitive damages. Accordingly, the motion for summary judgment should be granted.
1. Bartnicki's Retaliation Claims Fail Against Dr. Kirijan, As There Was No Personal Participation on Her Part.
In order to state a claim of retaliation under the First Amendment, a plaintiff must show: “(1) that [she] engaged in a protected activity, (2) that defendants' retaliatory action was sufficient to deter a person of ordinary firmness from exercising his or her rights, and (3) that there was a causal connection between the protected activity and the retaliatory action.” Lauren W. ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (citing Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006)). Stated differently, the plaintiff must demonstrate that the protected speech was “a ‘substantial factor' in the alleged retaliatory action.” McAndrew v. Bucks Cnty Bd. Of Comm'rs, 183 F.Supp.3d 713, 731 (E.D. Pa. 2016) (citing Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)). If a plaintiff makes such a showing, the burden then shifts to the defendants to show that, even if the protected speech had not taken place, it would have taken the same action.
With respect to the third element, there are three ways in which a plaintiff can establish causation for a First Amendment retaliation claim, showing, “(1) an ‘unusually suggestive temporal proximity' between the speech and the alleged retaliatory conduct; (2) a ‘pattern of antagonism coupled with timing'; or (3) that the ‘record as a whole' permits the trier of fact to infer causation. McAndrew, 183 F.Supp.3d at 737 (quoting DeFlaminis, 480 F.3d at 267).
Furthermore, it is axiomatic that liability under § 1983 is personal in nature and can only follow personal involvement in the alleged wrongful conduct, shown through specific allegations of personal direction or of actual knowledge and acquiescence in the challenged practice. See Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir. 1997). To set forth sufficient allegations of a defendant's personal involvement, the plaintiff must describe “the defendant's participation in or actual knowledge of and acquiescence in the wrongful conduct.” Chavarriaga v. New Jersey Department of Corrections, 806 F.3d 210, 222 (3d Cir. 2015). Allegations of constructive knowledge are not enough. Id. (citing Baker v. Monroe Twp., 50 F.3d 1186, 1194 (3d Cir. 1995)); Rode v. Dellarciprete, 845 F.2d 1195, 1201 n. 6 (3d Cir. 1988). Instead, a plaintiff “must portray specific conduct by state officials which violates some constitutional right.” Gittlemacker v. Prasse, 428 F.2d 1, 3 (3d Cir. 1970).
Here, for purposes of the instant motion, the defendants contend that Bartnicki has not alleged any personal involvement by Dr. Kirijan and they are therefore entitled to summary judgment on these claims as against Dr. Kirijan. We agree.
First, regarding the Honors class, Bartnicki admits that his assertion-that he was not selected to teach an Honors course because of what he was saying about the school district and the administration-is based solely on his subjective interpretation of the principal's body language. In his deposition, Bartnicki conceded that the principal's body language was his sole proof that his non-selection was retaliatory:
Q: Okay. So you said it was the only reason that was plausible.
A: Correct.
Q: And why do you believe that that's the only reason that it's plausible?
A: Because of Mr. Lalli's response to my question.
Q: That it wasn't -
A: It was not his decision
Q: But did Mr. Lalli suggest that it was not his decision to assign you because it had something to do with you being outspoken about mishandling of school matters?
A: Not verbally, no.
Q: Did he do it in any other method?
A: I would say in his body language he conveyed the fact that it's out of my hands and you know the reason why.
Q: He said that to you?
A: No; again, body language.
Q: Well, what did he do?
A: Sort of put his hands up and shrugged.
Q: And you interpreted that to mean that it's because of what you say and how you act in regard to criticizing school matters?
A: I did.
Q: But he didn't say that to you?
A: He did not.
Q: And did anybody ever say to you -
A: No.
Q: -- that you were denied the honors class because of those things?
A: It was never admitted to me, no.
Q: So when you allege that you were denied the assignment of the honor class in retaliation for being outspoken, about the mishandling of school matters, that was based on your interpretation of Mr. Lalli's body language?
A: Yes.(Id., at 27-28). He stated that he interpreted this to mean that it was Dr. Kirjan's decision. (Id., at 24). Moreover, Bartnicki admitted that he has no firsthand knowledge or proof that Dr. Kirijan even knew that he had requested to teach an Honors class. (Id., at 28). Simply put, this claim rests upon Bartnicki's speculative interpretation of a shrug. Much more is needed to sustain such a serious claim. Thus, we cannot conclude, based solely on Bartnicki's conjectural and subjective interpretation of the principal's body language, that Dr. Kirijan was involved in the hiring decision related to the Honors teaching position. Indeed, the argument invites us to ignore a fundamental principle of summary judgment practice, the concept that speculation is not a substitute for evidence at this stage of the proceedings. Turturro v. United States, 43 F.Supp.3d 434, 454 (E.D. Pa. 2014).
The defendants bolster their argument with reference to a sworn affidavit from Principal Lalli, in which he attests that he possessed the exclusive right to make course assignments during the time frame in question, and that Dr. Kirijan “did not influence or have any role whatever” in his decision for Bartnicki's assignments. (Doc. 52-6, ¶¶ 2, 6). This evidence is unrebutted. Therefore, the record before us reveals that Principal Lalli was in charge of making the decision relating to assignments for Honors courses, that Dr. Kirijan did not influence or have any role in the decision, and that there is no proof that Dr. Kirijan even knew Bartnicki applied to teach an Honors course. Further, Bartnicki has not alleged anything other than his own speculative and subjective interpretation of Lalli's body language to demonstrate that Dr. Kirijan had any personal involvement in making this decision. The conversation between Principal Lalli and Bartnicki does not contradict Principal Lalli's assertion that Dr. Kirijan had no influence over his decision. Principal Lalli never told Bartnicki that Dr. Kirijan was the reason he was not selected to teach an Honors course. Moreover, we are unable to interpret a shrugging gesture and a vague statement as implicating Dr. Kirijan in any fashion whatsoever. Bartnicki's claim against Dr. Kirijan cannot rest solely upon this type of naked conjecture. Thus, even viewing the evidence in the light most favorable to Bartnicki, as we are required to do on summary judgment, we find there is no genuine issue of material fact here regarding Dr. Kirijan's personal involvement. Therefore, she cannot be held liable under § 1983 for the decision to not assign Bartnicki to teach an Honors course.
While Bartnicki points to School District Policy 309 to support his assertion that all assignments and transfers were up to Dr. Kirijan, the policy states that the Superintendent is responsible for “provid[ing] a system of assignment or reassignment for district employees that includes consideration of requests for voluntary transfers.” (Doc. 57, at 2). Dr. Kirijan and Principal Lalli confirmed that throughout the district, the system Dr. Kirijan implemented was that these decisions were up to the principals of each school, which is not inconsistent with the language of the policy. (Docs. 52-4, at 14-15; 52-6, ¶ 2). Thus, Bartnicki's argument on this score is unavailing.
Regarding the selection of a non-teacher over Bartnicki for the soccer coach position, Bartnicki asserts that it was the past practice of the District to give coaching positions to teachers over non-teachers. (Doc 52-1, at 52). As Bartnicki was a teacher in the District and the other candidate who was selected for the coaching position, Lax Sphabmixay, was not, he invites us to assume that he was not selected for the coaching position in retaliation for being outspoken against Dr. Kirijan and the SSD. Furthermore, Bartnicki notes in his opposition brief that Dr. Kirijan was present when the Board selected Sphabmixay for the soccer coaching position and did not object to his appointment. (Doc. 59, at 14). In addition to arguing that he should have been given the position automatically because he was a teacher in the district, Bartnicki argues that several of the members who conducted the interviews were under “direct influence” from Dr. Kirijan, while admitting that he has no evidence of such malign influence. (Doc. 52-1, at 72).
For their part, the defendants explain that there is a procedure set forth in the CBA between the school district and the teachers' union for the selection of coaches and that the procedure was followed. The procedure sets forth a five-member panel to conduct interviews, provides a scoring rubric, and requires that the Board of School Directors to appoint coaches in the rank order determined by the scores given by the five-member panel. (Doc. 52-2, at 27-28).
Here, it is undisputed that Dr. Kirijan was not on the five-member panel that conducted interviews. There is no evidence that she influenced the scoring of applicants for the position, and at least as to Robert DeLuca, the principal of West Scranton High School, expressly denies that she exerted an such influence. (Doc 527, ¶¶ 10-12). Further, Dr. Kirjan is not a voting member of the School Board, the ultimate deciding authority. (Id., ¶ 14). Thus, Bartnicki was unable to provide anything more than his own conjecture to show that Dr. Kirijan influenced any of the members of the five-member panel who conducted and scored the interviews. (Doc. 52-1, at 72). A claim of this gravity cannot rest on speculation in the face of uncontroverted evidence. We are therefore unable to conclude that this evidence, which indicates compliance with the CBA interview and selection procedures and confirms no involvement by Dr. Kirijan in this process, is sufficient to demonstrate that Bartnicki was retaliated against by Dr. Kirijan during the selection process. While Dr. Kirijan was aware that the position was being offered to Sphabmixay, we are presented with-by Bartnicki's admission-no evidence that Dr. Kirijan influenced any of the panel members, a sworn affidavit from one member confirming that he was not influenced by Dr. Kirijan, resumes that lead to a logical conclusion that the panel believed Sphabmixay was more qualified, and score sheets indicating that Bartnicki was given lower scores than Sphabmixay. There is nothing in the record indicating that Dr. Kirijan had any personal involvement in the process of selecting a candidate for the coaching position. Therefore, she cannot be held liable under § 1983 for the selection of Sphabmixay over Bartnicki as assistant soccer coach.
In sum, we are faced with a record devoid of any specific allegations of personal direction or actual knowledge and acquiescence by Dr. Kirijan with respect to the Honors teaching position and the soccer coach position, which is vital to First Amendment retaliation claims brought under § 1983. Therefore, the defendants are entitled to judgment as a matter of law on these claims as to Dr. Kirijan. Accordingly, their motion for summary judgment should be granted.
In any event mindful that “[a] defendant may defeat the claim of retaliation by showing that it would have taken the same action even if the plaintiff had not engaged in the protected activity, ” Eck v. Oley Valley Sch. Dist., 431 F.Supp.3d 607, 622-23 (E.D. Pa. 2019), we conclude that the undisputed evidence relating to the independent basis for this hiring decision would defeat Bartnicki's claim even if we concluded that the plaintiff had made a prima facie case of retaliation, which he ha not.
2. Bartnicki is Not Entitled to Punitive Damages.
The defendants also argue that Bartnicki's claims for punitive damages must be stricken. Punitive damages are available in a proper case asserted pursuant to § 1983. See Smith v. Wade, 461 U.S. 30, 30 (1983). A plaintiff in a § 1983 case may qualify for a punitive damages award when the defendant's conduct is, at a minimum, reckless or callous. See Savarese v. Agriss, 883 F.2d 1194, 1204 (3d Cir. 1989); see also Wade, 461 U.S. at 47-48 (holding that a finding of “recklessness, serious indifference to or disregard for the rights of other, or even gross negligence” permitted an award of punitive damages). Although punitive damages awards may also be available if the defendant's conduct is intentional or motivated by evil motive, it need not meet that higher standard. Specifically, as the United States Supreme Court has stated, “a jury may be permitted to assess punitive damages in an action under § 1983 when the defendant's conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others. Wade, 461 U.S. at 56.
However, this standard only applies to defendants sued in their individual capacities; neither municipalities nor defendants sued in their official capacities can be liable for punitive damages. See City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 271 (1981) (holding that punitive damages cannot be awarded against municipalities). It is undisputed that public school districts, such as the Scranton School District, are considered municipal entities. See Doe v. Allentown Sch. Dist., Civl Action No. 06-CV-1926, 2009 WL 536671, at *5 (E.D. Pa. Mar. 2, 2009) (citing Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701 (1989)). Accordingly, all requests for punitive damages against the SSD should be dismissed.
We are then left with the claim for punitive damages against Dr. Kirijan, who is sued in her individual capacity. The defendants argue that Bartnicki's claim for punitive damages against her failed to show that Dr. Kirijan's conduct was motivated by evil motive or intent or that it involved reckless or callous indifference to the federally protected rights of others. Bartnicki responds that he set forth sufficient allegations to entitle him to request punitive damages, specifically, that Dr. Kirijan acted recklessly in refusing to assign him to the honors class or allowing him to be an assistant soccer coach.
However, having found that Bartnicki has failed to establish any personal involvement in the allegedly retaliatory activity by Dr. Kirijan, we are unable to find that any the alleged conduct was reckless or callous, let alone intentional, as implied by Bartnicki. Accordingly, the punitive damages claim as to Dr. Kirijan should also be dismissed.
IV. RECOMMENDATION
Accordingly, for the foregoing reasons, IT IS RECOMMENDED THAT the defendants' motion for summary judgment (Doc. 50) be GRANTED, and the claims against Dr. Kirijan and the claims for punitive damages should be dismissed.
The parties are further placed on notice that pursuant to Local Rule 72.3:
Any party may object to a magistrate judge's proposed findings, recommendations or report addressing a motion or matter described in 28 U.S.C. § 636 (b)(1)(B) or making a recommendation for the disposition of a prisoner case or a habeas corpus petition within fourteen (14) days after being served with a copy thereof. Such party shall file with the clerk of court, and serve on the magistrate judge and all parties, written objections which shall specifically identify the portions of the proposed findings, recommendations or report to which objection is made and the basis for such objections. The briefing requirements set forth in Local Rule 72.2 shall apply. A judge shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made and may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge, however, need conduct a new hearing only in his or her discretion or where required by law, and may consider the record developed before the magistrate judge, making his or her own determination on the basis of that record. The judge may also receive further evidence, recall witnesses or recommit the matter to the magistrate judge with instructions.
Submitted this 1st day of April 2021.