Opinion
1:20-CV-00149-SPB-RAL
04-26-2022
STEFON JOHNSON JR., Plaintiff v. C.O. 1 LESKO, SGT. KEMP, SGT. MOOR, L.P.N. ANDRAKO, CO 4 GILL, LT. HARDING, INDIVIDUALLY AND IN THEIR OFFICIAL CAPACITIES; C.O. 1 BOOHER, C.O. 1 WILLCOX, C.O. 1 TERMINE, Defendants
SUSAN PARADISE BAXTER UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ECF NO. 74
RICHARD A. LANZILLO UNITED STATES MAGISTRATE JUDGE
I. Recommendation
It is respectfully recommended that that Defendants' Motion for Summary Judgment [ECF No. 74] be GRANTED and that judgment be entered in favor of all Defendants.
II. Report
A. Relevant Procedural History
Plaintiff, Stefon Johnson, Jr., an inmate in the custody of the Pennsylvania Department of Corrections (“DOC”), commenced this civil rights action pursuant to 42 U.S.C. § 1983 by filing a pro se complaint asserting Eighth and Fourteenth Amendment claims against employees at the DOC's State Correctional Institution at Forest, where he is incarcerated. See ECF No. 6. The Defendants moved to dismiss certain of Johnson's claims. ECF No. 26. The Court granted the motion in part and dismissed all claims against one Defendant as well as Johnson's claims for monetary damages against all Defendants in their official capacities and Johnson's Fourteenth Amendment claims. See ECF No. 37, p. 3. The Court denied the Defendants' motion as to Johnson's Eighth Amendment claim against Defendant Gill based on his alleged denial of meals to Johnson. Id. The Court also granted Johnson leave to file an amended complaint. Id.
Johnson filed an amended complaint, which is the operative pleading before the Court, naming nine DOC employees as Defendants: Lesko, Booher, Termine, Willcox, Kemp, Moor, Gill, Harding, and Andrako. See ECF No. 41, ¶¶ 4-12. All work at SCI-Forest. Id. The amended complaint alleges that these Defendants denied him meals for approximately eight to ten days in violation of the Eighth Amendment to the Constitution. See id., ¶¶ 13-24. He seeks declaratory relief as well as compensatory and punitive damages. Id., ¶¶ 32-28.
The Defendants have moved for summary judgment arguing that because Johnson failed to request monetary or injunctive relief in any of the grievances associated with his claims, he failed to properly exhaust his administrative remedies. See ECF Nos. 74, 75, p. 2. Defendants have filed a brief in support of their motion (ECF No. 75), Johnson's grievance record (ECF No. 77), and a Concise Statement of Material Facts (ECF No. 76). Johnson has filed a brief in opposition to the motion with attached exhibits (ECF No. 81), as well as a “Statement of Disputed Factual Issues” (ECF No. 82). Defendants filed a Reply Brief (ECF No. 84). Johnson responded with a Sur Reply Brief (ECF No. 87). The matter is ready for disposition.
Johnson filed his sur-reply brief without first obtaining leave of court as required by this Court's Practices and Procedures. See Chambers Practices and Procedures of Magistrate Judge Richard Lanzillo, available at General Practice Procedures April.2LB.df. But given that Johnson is proceeding pro se, the Court accepted his sur-reply brief. See, e.g, Roberson v. Department of the U.S. Navy, 2021 WL 4993960, at *1 (M.D. Pa. Oct. 15, 2021).
B. Factual Background
Johnson's Amended Complaint alleges that beginning on December 5, 2018, the Defendants consistently deprived him of food up to and including December 15, 2018. See ECF No. 41, ¶¶ 13-23. Johnson additionally alleges that on December 15, 2018, Defendant Moor kicked in his cell door and sprayed him with pepper (OC) spray “for approximately 30 seconds.” Id., ¶ 24. Johnson asserts that the Defendants' actions violated his right to be free from cruel and unusual punishment as guaranteed by the Eighth Amendment to the United States Constitution. He seeks redress of these violations in this action pursuant to 42 U.S.C. § 1983.
Congress through section 1983 provides the vehicle by which federal constitutional claims may be brought in federal court. Section 1983 provides in part: “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 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.
C. Standard of Decision
1. Summary Judgment
Federal Rule of Civil Procedure 56(a) requires the court to enter 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). Under this standard “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). A disputed fact is “material” if proof of its existence or nonexistence would affect the outcome of the case under applicable substantive law. Anderson, 477 U.S. at 248; Gray v. York Newspapers, Inc., 957 F.2d 1070,1078 (3d Cir. 1992). An issue of material fact is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson, 477 U.S. at 257; Brenner v. Local 514, United Bhd. of Carpenters and Joiners of Am., 927 F.2d 1283, 1287-88 (3d Cir. 1991).
When determining whether a genuine issue of material fact remains for trial, the court must view the record and all reasonable inferences to be drawn therefrom in favor of the nonmoving party. Moore v. Tartier, 986 F.2d 682 (3d Cir. 1993); Clement v. Consol. Rail Corp., 963 F.2d 599, 600 (3d Cir. 1992); White v. Westinghouse Electric Co., 862 F.2d 56, 59 (3d Cir. 1988). To avoid summary judgment, however, the nonmoving party may not rest on the unsubstantiated allegations of his or her pleadings. Instead, once the movant satisfies its burden of identifying evidence that demonstrates the absence of a genuine issue of material fact, the nonmoving party must go beyond his pleadings with affidavits, depositions, answers to interrogatories or other record evidence to demonstrate specific material facts that give rise to a genuine issue. Celotex Corp. v. Catrett, Ml U.S. 317, 324 (1986).
Further, under Rule 56, a defendant may seek summary judgment by pointing to the absence of a genuine fact issue on one or more essential claim elements. The Rule mandates summary judgment if the plaintiff then fails to make a sufficient showing on each of those elements. When Rule 56 shifts the burden of production to the nonmoving party, “a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial.” Celotex, Ml U.S. at 323. See Harter v. G.A.F. Corp., 967 F.2d 846, 851 (3d Cir. 1992).
Finally, when considering a motion in a pro se plaintiffs proceeding, a court must “apply the applicable law, irrespective of whether a pro se litigant has mentioned it by name.” Holley v. Dept. Veteran Affairs, 165 F.3d 244, 247-48 (3d Cir. 1999). This accommodation does not relieve a pro se plaintiff “of his obligation under Rule 56 to point to competent evidence in the record that is capable of refuting a defendant's motion for summary judgment.” Ray v. Fed. Ins. Co., 2007 WL 13377645, at *3 (E.D. Pa. May 10, 2007). That is, a plaintiffs status as a pro se litigant does not relieve him of the obligation under Rule 56(e) to produce evidence that raises a genuine issue of material fact. See Talley v. Pennsylvania Dep't of Corr., 2022 WL 357227, at *3 (W.D. Pa. Feb. 7, 2022) (citation omitted).
2. Exhaustion of Administrative Remedies and Procedural Default
The Defendants argue they are entitled to summary judgment on Johnson's Eighth Amendment claims because he did not request compensatory damages in any of his grievances relating to these claims as required by DOC policy. The Defendants assert that Johnson's failure to request such relief constituted a procedural default which resulted in his failure to properly exhaust his claims as required by the Prison Litigation Reform Act of 1995 (PLRA), 42 U.S.C. § 1997e(a). Failure to exhaust administrative remedies under the PLRA is an affirmative defense that a defendant must plead and prove. Ray v. Kertes, 285 F.3d 287, 295 (3d Cir. 2002). Although the PLRA's exhaustion requirement is not a jurisdictional prerequisite to an inmate bringing suit, where a defendant has properly raised it as a defense, the court is obliged to address it as a threshold matter. Rinaldi v. United States, 904 F.3d 257, 265 (3d Cir. 2018).
The PLRA requires an inmate to exhaust “such administrative remedies as are available” before commencing ft lawsuit challenging his or her conditions of confinement. See 42 U.S.C. § 1997e(a). This requirement “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong.” Porter v. Nussle, 534 U.S. 516, 532 (2002). Further, the statute requires “proper exhaustion,” meaning that a prisoner's completion of the administrative review process must also satisfy the applicable procedural rules of the prison's grievance system. Fennell v. Cambria County Prison, 607 Fed.Appx. 145,149 (3d Cir. 2015). A procedurally defective administrative grievance, even if pursued to final review, precludes an action in federal court. Id. Thus, the PLRA requires not only technical exhaustion of administrative remedies but substantial compliance with procedural requirements. Spruill v. Gillis, 372 F.3d 218, 227-32 (3d Cir. 2004). Such “proper exhaustion” requires an inmate to “follow all steps and procedural prerequisites of the applicable institutional administrative process.” Jones v. Bock, 549 U.S. 199, 218 (2007). An inmate's failure to follow the procedural requirements of the prison's grievance system will result in a procedural default of the claim. Spruill, 372 F.3d at 227-32.
The prison's grievance policy “defme[s] the boundaries of proper exhaustion.” Jones, 549 U.S. at 218; Spruill, 372 F.3d at 230-31 (the “prison grievance procedures supply the yardstick for measuring procedural default.”). Therefore, the procedural requirements for exhaustion in each case “are drawn from the polices of the prison in question rather than from any free-standing federal law.” Shifflett v. Korszniak, 934 F.3d 356, 364 (3d Cir. 2019) (citing Spruill 372 F.3dat231).
The DOC has an official Inmate Grievance System that governs the grievance and appeals process in Pennsylvania correctional institutions. See 37 Pa. Code § 93.9. The Inmate Grievance System is set forth in DC-ADM 804 and “is intended to deal with a wide range of issues, procedures, or events that may be of concern to an inmate.” DC-ADM 804, Inmate Grievance System Procedures Manual § 1(A)(2). It is not meant to address “[i]ssues concerning a specific inmate misconduct charge, conduct of hearing, statements written within a misconduct and/or other report, a specific disciplinary sanction, and/or the reasons for placement in administrative custody[,]” which must be addressed through DC-ADM 801, Inmate Discipline and/or DC-ADM 802, Administrative Custody Procedures. Id. at § 1(A)(7).
DC-ADM 804 sets forth a three-tier administrative remedy system. A prisoner is required to present his grievance to the Facility Grievance Coordinator for initial review. Id. at § 1(C). The prisoner is required to appeal an adverse determination by the Facility Grievance Coordinator to the Facility Manager. Id. at § 2(A). From there the prisoner must appeal to the Secretary's Office of Inmate Grievances and Appeals for appeal to final review. Id. at § 2(B). In this case, “[t]he level of detail necessary in a grievance to comply with the grievance procedures[,]” Jones, 549 U.S. at 218, is established by § 1(A)(11) of DC-ADM 804. It requires:
The text of the grievance must be legible, understandable, and presented in a courteous manner. The inmate must include a statement of the facts relevant to the claim.
a. The statement of facts shall include the date, approximate time, and location of the event(s) that gave rise to the grievance.
b. The inmate shall identify individuals directly involved in the event(s).
c. The inmate shall specifically state any claims he/she wishes to make concerning violations of Department directives, regulations, court orders, or other law.
DC-ADM 804 also requires that “[i]f the inmate desires compensation or other legal relief normally available from a court, the inmate must request the specific relief sought in his/her initial grievance.” DC-ADM 804 § 1 (A)(l l)(d); see also Woodley v. Nickolson, 2022 WL 196203, at *5 (W.D. Pa. Jan. 20, 2022). Courts have held that, given the mandatory language of § 1(A)(11)(d), an inmate procedurally defaults a claim for monetary relief if he does not seek such relief in his grievances. Id., (citing Wright v. Sauers, 729 Fed.Appx. 225, 227 (3d Cir. 2018) (affirming the district court's grant of summary judgment for defendant on plaintiff s excessive force claim because plaintiff failed to request monetary relief in his initial grievance)). See also Taylor, 202 WL 5366055; Cunningham v. Zubsic, 2019 WL 134209, at *5 (W.D. Pa. Jan. 8, 2019); Camacho v. Beers, 2018 WL 6618410, at *3 (W.D. Pa. Dec. 18, 2018).
D. Discussion: Johnson's claims should be dismissed because he failed to properly exhaust his administrative remedies.
As set forth above, the Defendants have the initial burden of demonstrating that Johnson failed to resort to the available administrative remedies. See, e.g, Rinaldi, 904 F.3d at 268.
They have satisfied this burden by producing his relevant grievance file and identifying Johnson's failure to request monetary relief in any of his grievances relating to his claims in this action. Although Johnson did avail himself of the DC-804 procedures and thus achieved technical exhaustion, by failing to seek monetary relief in any of his grievances, he failed to follow DC-ADM 804 § 1 (A)(l l)(d)'s requirements and, thus, defaulted his claims for such relief.
Johnson's relevant grievance record consists often grievances filed between December 8, 2015 and March 22, 2019. See ECF No. 77. The following recounts the relief Johnson asked for in his grievances:
(Image Omitted)
As this Court has explained:
a requirement to set forth the compensation or legal relief requested places the agency on notice of the prisoner's demand or valuation of his or her claim, and furthers the PLRA's underlying litigation avoidance goals by supporting early settlement or accommodation. Proper exhaustion, including adherence to a
requirement to delineate the relief requested, therefore promotes the efficiency recognized in Woodford, permitting claims to be “resolved much more quickly and economically in proceedings before an agency than in litigation in federal court.” Woodford at 87, 126 S.Ct. 2378. Given the underlying goals of the PLRA, and the state of the law requiring adherence to clearly stated content requirements, this Court must conclude that the mandatory nature of the language at issue gives rise to procedural default as a result of Plaintiff's failure to set forth the desired monetary or other legal relief on his initial grievance form.Wright v. Sauers, 2017 WL 3731957, 7-8 (W.D. Pa. Aug. 30,2017), affirmed, 729 Fed.Appx. 225 (3d Cir. 2018). The grievance forms themselves also clearly communicate this requirement by instructing, “State all relief you are seeking.” See Goodley v. Nickolson, 2022 WL 196203, at *5 (W.D. Pa. Jan. 20, 2022) (emphasis in original). Given the mandatory nature of the language of DC-ADM 804 § 1 (A)(l l)(d) regarding requests for “compensation or other legal relief normally available from a court,” an inmate procedurally defaults any claim for monetary relief if he did not seek such relief in his grievance. See, e.g., Wright, 729 Fed.Appx. at 227 (citing Spruill, 372 F.3d at 233-35). Here, Johnson did not request monetary damages in any of his grievances despite the clear language of DC-ADM 804 § l(A)(ll)(d).
In his amended complaint, Johnson specifically asks for “compensatory damages in the amount justified at a later time being as though there is no set price on a human life.” ECF No. 41, ¶ 33. He also requests punitive damages. Id., ¶ 34. But because he did not request such damages in any of his prison grievances, the claims for monetary relief from this Court are defaulted. See, e.g., Goodley, 2019 WL 196203, at *5; see also Vo v. Wetzel, 2021 WL 6197743, at *6 (W.D. Pa. Dec. 31, 2021). Put another way, Johnson's failure to request monetary relief in his grievances prohibits him from doing so now. Accordingly, summary judgment should be granted in favor of the Defendants on these claims. See e.g., Washington, 2020 WL 4353198, at *6 n.4.
To save his claims from default, Johnson contends that his grievances leveled abuse allegations against the Defendants and that, as a result, he did not need to request monetary damages as is required by DC-ADM 804. See ECF No. 81, p. 3. He cites the Court to DC-ADM 001 and to Nunez v. Borstnar, 2019 WL 4393387, at *1 (W.D. Pa. Sept. 9, 2019), report and recommendation adopted, 2019 WL 4394848 (W.D. Pa. Sept. 13, 2019) in support of his position that his Eighth Amendment claims were properly exhausted through the DC-ADM 001 process. See ECF No. 81, p. 3. Johnson correctly notes that “[u]nlike the provisions of DC-ADM 804, [DC-ADM 001] does not expressly require inmates to include requests for monetary relief or to identify particular issues or individuals with specificity.” Pirl v. Ringling, 2021 WL 1964461, at *12 (W.D. Pa. Mar. 29, 2021). Johnson's argument fails, however, because DC-ADM 001 specifically excludes the type of claims he has raised in this lawsuit.
Johnson maintains that the Defendants' failure to deliver his food tray on multiple occasions constituted “abuse” within the meaning of DC-ADM OOI. See ECF No. 81, p. 4. This argument conflates “abuse” claims with “conditions of confinement” claims. Claims concerning the deprivation of food in the prison setting relate directly to an inmate's conditions of confinement. See, e.g., Pena v. Clark, 2022 WL 897037, at *2 (3d Cir. Mar. 28, 2022) (holding an Eighth Amendment conditions of confinement claim to include deprivation of food); Tillman v. Lebanon Cty. Corr. Facility, 221 F.3d 410, 418 (3d Cir. 2000) (Eighth Amendment claims include a denial of the minimal measures of life's necessities, including food). And DC-ADM 001 specifically excludes such claims from its scope. See DC-ADM 001 (2)(a); Simmons v. Gilmore, 2021 WL 1215773, at *16 (W.D. Pa. Mar. 31, 2021) (citing DC-ADM 001 and holding that the policy specifically excludes “conditions of confinement” claims from its scope); see also Freeman v. Wetzel, 2020 WL 6730897, at *11 (W.D. Pa. Aug. 6,2020). Because DC-ADM 001 specifically excludes claims relating to conditions of confinement from its purview, Johnson's Eighth Amendment claims could only have been grieved through DC-ADM 804. See, e.g., Simmons, 2021 WL 1215773, at *16.
Johnson's amended complaint alleges, for example, that he was not given any food tray on December 5, and December 9-14, 2018. ECF No. 41, ¶¶ 13, 15-23. He claims to have been deprived of a dinner tray on December 8, 2018 (id. at ¶ 14); as well as a breakfast tray on December 15, 2018 (id. at ¶ 24).
Nor is the Court's decision in Nunez, supra., any help to Johnson. There, the Court determined that a DOC prisoner's allegations that corrections officers were attempting to solicit inmates to attack another inmate fell within DC-ADM 001 's definition of abuse. See Nunez, 2019 WL 4393387, at *3 (W.D. Pa. Sept. 12, 2019). See also Pirl, 2021 WL 1964461, at *10 (W.D. Pa. Mar. 29, 2021) (citing Nunez, 2019 WL 4393387 at *3); Freeman v. Wetzel, 2020 WL 6730897, at * 11 (W.D. Pa. Aug. 6, 2020). That definition clearly contemplates only abusive physical action against an inmate. See, e.g, McCain v. Wetzel, 2018 WL 3439204, at *5 (M.D. Pa. July 17, 2018) (DC-ADM 001 designed to deal with inmates' allegations of physical and sexual abuse); Moore v. Lamas, 2017 WL 4180378, at *12 (M.D. Pa. Sept. 21, 2017) (allegation of physical abuse reviewed pursuant to DC-ADM 001). The policy defines abuse as
1. Conduct by an employee, contractor, volunteer, or an individual who has business with or uses the resources of the Department that involves:
a. the use of excessive force upon an inmate;
b. the improper use of force upon an inmate;
c. an occurrence of an unwarranted life-threatening act against an inmate; or
d. an articulated verbal or written threat to inflict physical injury directed toward and inmate.See ECF No. 84-1, p. 16 (DC-ADM 001, “Glossary of Terms”). The Court in Nunez concluded that allegations that corrections officers “solicited inmates to assault [Nunez]” fell within DC-ADM's definition of abuse because they implicated an “occurrence of an unwarranted lifethreatening act” against the plaintiff. 2019 WL 4393387, at *3. Here, Johnson has made no allegation that the Defendants either physically attacked him or encouraged others to do so. Thus, Nunez cannot rescue his claims from default.
Johnson's amended complaint does include a claim of excessive force against Defendant Moore. See ECF No. 41, ¶¶ 24, 31. Such claims may be exhausted under either DC-ADM 001 or DC-ADM 804. See, e.g, Moore v. Lamas, 2017 WL 4180378, at *11 n.15 (M.D. Pa. Sept. 21, 2017). Here, however, Johnson did not convey the alleged abuse under DC-ADM 001 by reporting it directly to a staff member or in writing to the DOC's Office of Special Investigations and Intelligence (OSII). See DC-ADM 001, § IV(D(1)&(3). Instead, he chose to report the alleged abuse by filing a grievance under DC-ADM 804. See ECF No. 7-9, p. 1. See also Washington, 2020 WL 4353198, at *6 n.4. As this Court has explained, “even if an inmate has the option to report allegations of abuse directly to a staff member or in writing to OSII, as provided for in DC-ADM 001, if the inmate elects to report it by filing a grievance pursuant to DC-ADM 804 then he must... satisfy the PLRA's exhaustion requirement[s].” Id. Here, Johnson grieved the use of OC spray via DC-ADM 804 and did not request monetary relief in his grievance. Therefore, his claim for such relief in this Court has not been properly exhausted.
The grievance associated with this claim, No. 779477, does include Johnson's statement that, “I spoke with R.H.U. Lt. after the situation occurred.” ECF No. 77-9, p. 1. This cannot be considered an actual report of abuse, however because Johnson dose not identify who he spoke to or when he did so.
E. Discussion: Johnson's claim for declaratory relief should be dismissed.
Johnson's amended complaint includes two claims for nonmonetary relief. First, he asks for a “declaration that the acts and omissions described herein violated Plaintiffs rights under the constitution and laws of the United States.” ECF No. 41, ¶ 32. The “acts or omissions” Johnson speaks of are his Eighth Amendment conditions of confinement claim relating to food deprivation and the use of excessive force (OC spray) by Defendant Moor. Summary judgment should be granted as a matter of law on this claim.
Certain types of relief may be pursued against state actors absent a request for monetary damages, including declaratory and injunctive relief. See Verizon Maryland Inc., v. Public Serv. Com 'n of Maryland, 535 U.S. 635 (2002). The Supreme Court has stated that to pursue claims against a state, or state actors in their official capacities, the relief sought must be prospective and the violation alleged must be ongoing. See Seminole Tribe of Florida v. Florida, 517 U.S. 44, 73 (1996) (“[W]e often have found federal jurisdiction over a suit against a state official when that suit seeks only prospective injunctive relief in order to ‘end a continuing violation of federal law.'” (emphasis added) (citing Green v. Mansour, 474 U.S. 64, 68 (1985)). Consequently, where monetary relief is not available, declaratory relief is, for the most part, only available where injunctive relief would also be available - in situations where it is necessary to address prospective harm. Here, Johnson has not alleged facts nor presented any evidence to establish an ongoing violation by the Defendants warranting declaratory relief. To the extent Johnson's claim for declaratory relief seeks prison reform for other inmates, he clearly lacks standing to assert such a claim. City of Los Angeles v. Lyons, 461 U.S. 95 (1983). Further, as to himself, he has neither alleged facts nor presented any evidence to support declaratory relief. Johnson presents his claim based exclusively on past misconduct. This is precisely the sort of “end run” around the Supreme Court's decisions in Green, supra., and Edelman v. Jordan, 415 U.S. 651 (1974) that courts must reject.
For this same reason, the Court should reject Johnson's final claim for relief, that the Court enter judgment terminating the Defendants' employment “based on their actions.” See ECF No. 41, ¶ 35. Courts have held that “[t]ermination of employment for an alleged failure to perform in the past is not the sort of prospective injunctive relief permitted pursuant to Ex parte Young.” Bacon v. Evans, 2021 WL 5643038, at *7 (S.D.N.Y. Dec. 1, 2021). (citing Wess v. Epps, 2014 WL 4472778, at *2 (S.D.Miss. Sept. 10, 2014); Phillips v. Nebraska, 2017 WL 5195209, at *3 (D. Neb. Nov. 9, 2017) (“To the extent termination of one's employment is a proper remedy under § 1983, [the] [p]laintiff does not allege that [the] [defendants' constitutional violations are ongoing; rather, [the] [p]laintiff seeks to terminate [the] [defendants' employment as a punishment for past misdeeds. Thus, [the] [plaintiff's requested relief of terminating [the] [defendants' employment is barred by the Eleventh Amendment.”)).
III. Conclusion
For the foregoing reasons, it is respectfully recommended that the Defendants' motion for summary judgment (ECF No. 74) be granted and that judgment be entered in their favor.
IV. Notice to the Parties Regarding Objections
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.