Stoyanov v. Winter ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
YURI J. STOYANOV, )
)
Plaintiff, )
)
v. ) Civil Action No. 08-1386 (ESH)
)
DONALED C. WINTER, )
SECRETARY OF THE NAVY, et al., )
)
Defendants. )
__________________________________________)
MEMORANDUM OPINION
Plaintiff has yet again filed a pro se complaint against his employer, the Department of
Navy. In a fourteen-count complaint plaintiff alleges discrimination based on national origin and
age and retaliation in violation of Title VII and the ADEA; constitutional violations and
violations of the civil rights laws, as well as conspiracy and aiding and abetting civil rights
violations; various torts, including abuse of process, fraud and misrepresentation; an implied
right of action for obstruction of justice; and violations of the Whistleblower Protection Act of
1989. Consistent with his past practice, plaintiff has also filed a motion for sanctions (Dkt. No.
21) under Fed. R. Civ. P. 11, claiming that defendants’ summary judgment motion includes
“deliberate misrepresentations,” “fraudulent assertions,” and “deceitful contentions.” (Pl.’s Mot.
for Sanctions at 2.) In addition, plaintiff has filed for final judgment (Dkt. No. 27) and a motion
for additional sanctions and leave to respond to defendants’ June 26, 2009 reply. (Dkt. No. 30.)
In response to plaintiff’s constant barrage of paper, defendant has filed oppositions to
plaintiff’s many motions, as well as a motion for summary judgment and to dismiss or in the
alternative, for a more definite statement (Dkt. Nos. 16 and 17), which plaintiff opposes.
1
Plaintiff’s opposition consists primarily of an attack on defendant’s factual assertions on the
supposed grounds that they are fraudulent and deceitful, but as explained more fully below, his
opposition consists of little more than disputes that are neither factual nor substantive and do
nothing to rebut defendants’ meritorious legal and factual arguments.
Therefore, plaintiff’s pending motions will be DENIED and defendants’ motions to
dismiss and for summary judgment will be GRANTED.
BACKGROUND
I. PRIOR LITIGATION
While plaintiff does not appear to have brought suit in this Court before, he is a frequent
filer in Maryland. As noted by Judge Davis in his Memorandum Opinion in Stoyanov v. Winter,
No. 1:06-cv-01244-AMD (D. Md.), issued on August 11, 2008 (Dkt. No. 55), plaintiff has filed
seven employment discrimination cases in Maryland.1 As a result of his vexatious conduct, he is
now subject to an order that limits him and his twin brother to only one active case at a time in
the District of Maryland. See Stoyanov, No. 1:06-cv-01244-AMD, Mem. Opin. at 3-4 & n.1
(attached as Ex. I to Defs.’ Mot. for Summary Judgment and to Dismiss [Defs.’ SJ Mot.]). And,
it bears noting that the tactic employed here of bringing multiple motions for sanctions was also
used in Maryland, without success, in at least two of these actions. See, e.g., Stoyanov v. Winter,
No. 1:06-cv-01244-AMD (Dkt. No. 49) (D. Md. May 13, 2008), and Stoyanov v. Winter, No.
1:05-cv-01567-RDB (Dkt. Nos. 64, 71 and 72) (D. Md. Oct. 30, 2006, Nov. 17, 2006).
1
These cases are described by Judge Davis in his Memorandum Opinion at 3-4. Stoyanov v.
Winter, No. 1:06-cv-01244-AMD, Mem. Opin. at 3-4 (Dkt. No. 55) (D. Md. Aug. 11, 2008).
They date back to 2002, they have all involved the Department of Navy, the plaintiffs have
included plaintiff herein, and on occasion, his twin brother (Aleksandt) who is also employed as
a scientist by the Navy, and plaintiff has ultimately failed with respect to all claims.
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II. THIS CASE
Plaintiff was born in 1955 in the former Soviet Union, is now a naturalized citizen, and
has worked for the Department of Navy as a scientist since 1986. He sues his employer, the
Secretary of Navy, and three individuals in their personal and official capacities.2 The dispute
arises from plaintiff’s complaint that he was not promoted to fill a vacancy in 2005 for a
Supervisory Naval Architect in NAVSEA, Vacancy Announcement DON0871. Venue properly
lies with this Court since the job at issue, a GS-15 position, is located in the Washington, D.C.
Navy Yard. It is undisputed that plaintiff did not submit an application for the vacancy, although
plaintiff claims that there was a conspiracy to conceal the vacancy announcement from him even
though the announcement was posted on the Department of the Navy Human Resources website
“CHART” system that is available to anyone, including plaintiff, with web access. In the
alternative, defendants assert that plaintiff could not have been promoted to his position because
he lacked the necessary qualifications. Plaintiff disputes this assertion.
ANALYSIS
I. MOTION TO DISMISS
A. Standard of Review
Although much of plaintiff’s forty-six page opposition consists of little more than
plaintiff’s vitriolic characterization of defendants’ factual assertions in their summary judgment
motion and supporting statement of facts not in dispute as “intentional misrepresentations,
fabricated assertions without evidentiary support and . . . deceptions to the Court with regard to
2
Plaintiff has sued Gary Jebsen, the Acting Head of Naval Sea Systems Commander, Section
O5T (NAVSEA O5T), and the selecting official for the position at issue; Linda Rosales,
formerly the Administrative Officer of NAVSEA O5T; and Anthony Verducci, Department of
Navy, Office of General Counsel and designated agency representative for handing plaintiff’s
EEOC case before the EEOC.
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material facts in deceitful attempt to defend defendants’ intentional discrimination and
retaliations against plaintiff…,” (see, e.g., Pl.’s Mot. in Opp’n to Defs.’ SJ Mot. at 35), the vast
majority of plaintiff’s claims can be dismissed under Fed. R. Civ. P. 12(b)(1) and (6) without any
reliance on defendants’ factual assertions.
“In determining whether a complaint fails to state a claim [under Rule 12(b)(6)], [courts]
may consider only the facts alleged in the complaint, any documents either attached to or
incorporated in the complaint and matters of which [courts] may take judicial notice.” E.E.O.C.
v. St. Francis Xavier Parochial School, 117 F.3d 621, 624 (D.C. Cir. 1997). “‘[W]hen ruling on
a defendant’s motion to dismiss, a judge must accept as true all of the factual allegations
contained in the complaint.’” Atherton v. Dist. of Columbia Office of Mayor, 567 F.3d 672, 681
(D.C. Cir. 2009) (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007)). “‘So long as the
pleadings suggest a “plausible” scenario to show that the pleader is entitled to relief, a court may
not dismiss.’” Id. (quoting Tooley v. Napolitano, 556 F.3d 836, 839 (D.C. Cir. 2009) (edits
omitted). However,
[t]o survive a motion to dismiss, a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face. A
claim has facial plausibility when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged. The plausibility standard is not akin to a “probability
requirement,” but it asks for more than a sheer possibility that a defendant has
acted unlawfully. Where a complaint pleads facts that are merely consistent with
a defendant’s liability, it stops short of the line between possibility and
plausibility of entitlement to relief.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (internal quotation marks and citations omitted).
And, “even a pro se complainant must plead ‘factual matter’ that permits the court to
infer ‘more than the mere possibility of misconduct.’” Atherton, 567 F.3d at 681-82 (quoting
Iqbal, 129 S. Ct. at 1950).
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Under Fed. R. Civ. P. 12(b)(1), which governs motions to dismiss for lack of subject
matter jurisdiction, “a plaintiff bears the burden of establishing by a preponderance of the
evidence that the Court possesses jurisdiction.” Martens v. United States, No. 05-CV-1805,
2007 WL 2007580, at *1 (D.D.C. July 6, 2007). “[I]n passing on a motion to dismiss, whether
on the ground of lack of jurisdiction over the subject matter or for failure to state a cause of
action, the allegations of the complaint should be construed favorably to the pleader.” Marsoun
v. United States, 591 F. Supp. 2d 41, 43 (D.D.C. 20008) (quoting Scheuer v. Rhodes, 416 U.S.
232, 236 (1974)).
The pleadings of pro se parties “[are] to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted
by lawyers.” Erickson v. Pardus, 551 U.S. 89 (2007) (internal quotation marks and citations
omitted). Nonetheless, “[a] pro se complaint, like any other, must present a claim upon which
relief can be granted by the court.” Crisafi v. Holland, 655 F.2d 1305, 1308 (D.C. Cir. 1981);
see also McNeil v. United States, 508 U.S. 106, 113 (1993) (“[W]e have never suggested that
procedural rules in ordinary civil litigation should be interpreted as to excuse mistakes by those
who proceed without counsel.”).
B. Counts IV-XIV
Applying the above standards and based on a thorough review of all the pleadings and the
record herein, the Court will grant defendants’ motion to dismiss Counts IV-XIV for the
following reasons.
1. The individual defendants cannot be sued, either in their official or individual
capacities, under Title VII or the ADEA. See 42 U.S.C. §§ 2000e-2 and 5(f)(1).
Only the Secretary of the Navy is a proper defendant. Jarrell v. U.S. Postal Serv.,
753 F.2d 1088, 1091 (D.C. Cir. 1998) (citing 42 U.S.C. § 2000e – 16(c)).
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2. The individual defendants cannot be sued for any tort since the United States is
the only proper defendant with respect to these claims under the Federal
Employees Liability Reform and Tort Compensation Act of 1988 (“Federal Tort
Claims Act” or “FTCA”), 28 U.S.C. § 2679(b)(1) and (d)(1).
3. The tort claims against the United Sates under the FTCA must be dismissed for
lack of jurisdiction because plaintiff has failed to exhaust his administrative
remedies. 28 U.S.C. § 2675. In addition, any claims for fraud, misrepresentation
and malicious abuse of power against the United States, as well as any federal
defendant in his or her official capacity, must be dismissed for lack of
jurisdiction, since the FTCA exempts these claims from the general waiver of
sovereign immunity, see 28 U.S.C. § 2680(h), and second, federal defendants
cannot be sued in their official capacity for damages because of the doctrine of
sovereign immunity. See Atchison v. District of Columbia, 73 F.3d 418, 424
(D.C. Cir. 1996).
4. Plaintiff’s allegations under the Whistleblower Protection Act, 5 U.S.C. § 2303,
must be dismissed because he has failed to exhaust his administrative remedies or
the claim is otherwise jurisdictionally barred since plaintiff did not make a non-
frivolous claim under the WPA, nor was such an allegation adjudicated by the
Agency, the EEOC, or the Office of Special Counsel. In the alternative,
plaintiff’s complaint is subject to dismissal under Fed. R. Civ. P. 12(b)(6), as
interpreted by Iqbal, 129 S. Ct. at 1949-55, since his complaint fails to allege any
“protected disclosures” within the meaning of the WPA, since protected activity
under Title VII and the ADEA does not constitute protected disclosures under the
WPA. See 5 U.S.C. § 2302(b)(8).
5. To the extent that plaintiff is attempting to relitigate any claim that was previously
decided in a prior lawsuit, these claims must be dismissed under Rule 12(b)(1)
because they are barred by the doctrine of res judicata or claim preclusion. See
Smalls v. United States, 471 F.3d 186, 192 (D.C. 2006). (See also Defs.’ Reply at
4-6.)
6. Plaintiff cannot sue a federal defendant under either the Fourteenth Amendment
or 42 U.S.C. § 1983, since these provisions apply only to the states. See Williams
v. United States, 396 F.3d 412 (D.C. Cir. 2005). Thus, these claims fail as a
matter of law under Rule 12(b)(6).
7. Plaintiff cannot sue the federal defendants under Bivens because Congress has
created a comprehensive statutory scheme to provide relief in the area of
discrimination. See Bush v. Lucas, 462 U.S. 367 (1983); Wilkie v. Robbins, 551
U.S. 537, 549 (2007); Spagnola v. Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988) (en
banc) (per curiam). In particular, it is well settled that Title VII and the ADEA
provide the sole remedy for federal employees complaining of job discrimination.
See Brown v. GSA, 425 U.S. 820 (1976). Despite plaintiff’s chant of an endless
stream of invectives, the gravamen of his complaint is employment discrimination
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based on age and national origin and retaliation for having engaged in protected
activity. He therefore cannot sue the individual defendants for a constitutional
tort. These claims must be dismissed under Rule 12(b)(6).
8. Plaintiff has no implied right of action to bring a claim under any criminal statute,
including 18 U.S.C. § 1512 (Counts VII and XI).
9. There can be no claim based on any allegation that plaintiff’s employer or the
EEOC mishandled his discrimination complaint. Young v. Sullivan, 733 F. Supp.
131, 132 (D.D.C. 1990), aff’d, 946 F.2d 1568 (D.C. Cir. 1991).3
II. MOTION FOR SUMMARY JUDGMENT
A. Standard of Review
A party is entitled to summary judgment if the pleadings on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the moving
party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Material facts are those
that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). The party seeking summary judgment bears the initial burden of
demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). In considering whether there is a triable issue of fact, the Court must draw all
reasonable inferences in favor of the non-moving party. Anderson, 477 U.S. at 255. The party
opposing a motion for summary judgment, however, “may not rely merely on allegations or
denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine
issue for trial.” Fed. R. Civ. P. 56(e)(2). The non-moving party must do more than simply
“show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Moreover, “any factual assertions in the
3
While it is often difficult to decipher what plaintiff is complaining about in his one hundred and
seventy-eight paragraph complaint, it may be that he is challenging the EEO process. (See, e.g.,
Compl. ¶¶ 97, 100.) To the extent that this is not one of his claims, paragraph 9 can be ignored.
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movant's affidavits will be accepted as being true unless [the opposing party] submits his own
affidavits or other documentary evidence contradicting the assertion.” Neal v. Kelly, 963 F.2d
453, 456 (D.C. Cir. 1992) (quoting Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982)).
B. Title VII and the ADEA
1. Prima Facie Case
To succeed on a claim of discrimination under Title VII and the ADEA, a plaintiff has
the initial burden of establishing a prima facie case of discrimination by showing that “(1) [he] is
a member of a protected class; (2) [he] suffered an adverse employment action; and (3) the
unfavorable action gives rise to an inference of discrimination.” Stella v. Mineta, 284 F.3d 135,
145 (D.C. Cir. 2002); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973);
Carter v. George Washington Univ., 387 F.3d 872, 878 (D.C.Cir.2004) (applying McDonnell
Douglas framework to ADEA claims). A prima facie case of retaliation requires a plaintiff to
show that “(1) [he] engaged in statutorily protected activity; (2) [he] suffered an adverse
employment action; and (3) there is a causal connection between the two.” Taylor v. Small, 350
F.3d 1286, 1292 (D.C. Cir. 2003); see also 42 U.S.C. § 2000e-3(a). Should plaintiff fail to make
out a prima facie case with respect to any claim, that claim must be dismissed.
Pursuant to this standard, to make out a prima facie case of either discrimination or
retaliation, plaintiff must show an adverse action, which is defined as “a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing significant change in benefits.” Douglas v.
Donovan, 559 F.3d 549, 552 (D.C. Cir. 2009) (citation and internal quotation marks omitted).
“[A]n employee suffers an adverse employment action if he experiences materially adverse
consequences affecting the terms, conditions, or privileges of employment or future employment
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opportunities such that a reasonable trier of fact could find objectively tangible harm.” Forkkio
v. Powell, 306 F.3d 1127, 1131 (D.C. Cir. 2002) (citing Brown v. Brody, 199 F.3d 446, 457
(D.C. Cir. 1999)). In most cases, a tangible employment action “inflicts direct economic harm.”
Douglas, 559 F.3d at 552 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762 (1998)).
However, where the alleged significant change in employment status is not obvious, “an
employee must go the further step of demonstrating how the decision nonetheless caused such an
objectively tangible harm,” which requires a court “to consider whether the alleged harm is
unduly speculative.” Id. at 553.
For a retaliation claim, the concept of adverse action is broader than in the discrimination
context and “can encompass harms unrelated to employment or the workplace ‘so long as a
reasonable employee would have found the challenged action materially adverse.’” Rattigan v.
Holder, 604 F.Supp.2d 33, 46 (D.D.C. 2009) (quoting Baloch v. Kempthorne, 550 F.3d 1191,
1198 n. 4 (D.C. Cir. 2008) (citation and internal quotation marks omitted)). To be materially
adverse, the action must be one that “well might have ‘dissuaded a reasonable worker from
making or supporting a charge of discrimination.’” Burlington N. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68 (2006) (quoting Rochon v. Gonzales, 438 F.3d 1211, 1219 (D.C. Cir. 2006)).
2. Pretext
Once a plaintiff establishes a prima facie case, the burden shifts to the defendant to
produce evidence that the challenged action was taken for a legitimate, nondiscriminatory
reason. See Holcomb v. Powell, 433 F.3d 889, 896 (D.C. Cir. 2006). And, as advised by the
D.C. Circuit, when reviewing a motion for summary judgment in a discrimination or a retaliation
case, a district court need not – and should not – evaluate a plaintiff's prima facie showing where
a defendant sets forth a legitimate, nondiscriminatory reason for its conduct. Brady v. Office of
9
the Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008). Instead, a court must look to whether
the plaintiff has “produced sufficient evidence for a reasonable jury to find that the employer's
asserted non-discriminatory reason was not the actual reason and that the employer intentionally
discriminated against [the plaintiff].” Id. (citations omitted); Jones v. Bernanke, 557 F.3d 670,
678 (D.C. Cir. 2009) (applying same principles to retaliation claims). When making this
determination, courts consider “all relevant evidence” presented by the parties, Brady, 520 F.3d
at 495, “including that which would be used to establish [the employee’s] prima facie case (but
not for the purpose of evaluating whether a prima facie case has been established)…” Walker v.
England, 590 F. Supp.2d 113, 138 (D.D.C. 2008). Where the “employer’s stated belief about the
underlying facts is reasonable in light of the evidence . . . there ordinarily is no basis for
permitting a jury to conclude that the employer is lying about the underlying facts.” Brady, 520
F.3d at 495.
C. Counts I - III – Plaintiff’s Discrimination / Retaliation Claims
Applying the above standards to plaintiff’s claims, the Court concludes that plaintiff
cannot demonstrate a genuine issue of material fact that defendants’ proffered reason for not
promoting him were pretextual or that he was denied the promotion because of any
discriminatory or retaliatory animus. On the contrary, there is no dispute that plaintiff did not
apply for the DON0871 position. This alone is fatal to his case, since a plaintiff cannot even
establish a prima facie case of discriminatory or retaliatory failure to promote if he did not apply
for the position. Lathram v. Smith, 336 F.3d 1085, 1089 (D.C. Cir. 2003) (finding plaintiff’s
Title VII claim was “defeated by her failure to apply” for the position); Williams v. Giant Food,
Inc., 370 F.3d 423, 430 (4th Cir. 2004); Smith v. J. Smith Lanier & Co., 352 F.3d 1342, 1345
(11th Cir. 2003); Wanger v. G.A. Gray Co., 872 F.2d 142, 145-46 (6th Cir. 1989); Box v. A & P
10
Tec. Co., 772 F.2d 1372, 1376 (7th Cir. 1985). But even if one were to consider plaintiff’s
response to this defect, his claims would fail, for there is absolutely no credible evidence to
support plaintiff’s conspiracy theory that defendants denied him the opportunity to submit his
application. (See, e.g., Pl.’s Opp’n at 3, 7, 35-36.) In fact, the observations of Judge Davis in
Stoyanov v. Winter, No. 1:06-cv-01244-AMD (D. Md. 2008), are particularly fitting here as well:
[T]here is no basis in the record from which the court could infer that unlawful
discrimination played a role in defendants’ selection processes. Plaintiff has not
produced any meaningful evidence to suggest that his age, Russian origin, or prior
complaints were factors in his inability to secure a promotion . . . . Stoyanov’s arguments
are based on his own conspiratorial theories and conclusory leaps in reasoning rather than
evidence. See Goldberg v. B. Green and Co., Inc., 836 F.2d 845 848 (4th Cir. 1988)
(“naked opinion, without more, is not enough to establish a prima facie case of []
discrimination. Conclusory assertions that [defendant’s] state of mind and motivation are
in dispute are not enough to withstand summary judgment.”). Furthermore, even
assuming that plaintiff had established a prima facie case, he cannot refute the legitimate,
non-discriminatory explanations defendants have offered for their appointments.
***
Stoyanov urges the court to substitute its judgment, or more accurately Stoyanov’s, for
that of his employer on no more basis than plaintiff’s own assertions that he is the most
qualified candidate. See DeJarnette v. Corning, Inc., 133 F.3d 293, 298 (4th Cir 1998)
(“Title VII is not a vehicle for substituting the judgment of a court for that of the
employer.”). No reasonable factfinder could return a verdict in favor of Stoyanov on this
record, therefore summary judgment in favor of defendants is appropriate as to each of
the cognizable discrimination and retaliation claims.
Mem. Opin. at 6-7 (footnote omitted).
As in his prior case, plaintiff has no evidence to support an inference of unlawful
discrimination or retaliation in this case. Rather, he relies on conjecture, accusation,
conspiratorial theories and his own assessment. As amply demonstrated by defendants (see
Defs.’ Reply at 12-17), the selection process was not flawed and there was no effort to conceal
the vacancy from plaintiff. Rather, the vacancy announcement was posted on the official
CHART website and was available to plaintiff, who was well aware of the website and had used
11
it regularly. While plaintiff may have used the wrong search terms, there is no basis to blame
defendants for his mistakes.
In the alternative, plaintiff has provided no evidence to contradict Ms. Thompson’s
declaration that plaintiff would not have been promoted even if he applied, since he was not
qualified. (See Defs.’ SJ Mot., Ex. D.) While plaintiff contests this by claiming that he was the
most qualified (Pl.’s Opp’n at 5), it is important to note that plaintiff cannot establish pretext
simply based on his own subjective assessment of his own performance, for “plaintiff’s
perception of himself, and of his work performance, is not relevant. It is the perception of the
decisionmaker which is relevant.” Smith v. Chamber of Commerce, 645 F. Supp. 604, 608
(D.D.C. 1986); see also Hastie v. Henderson, 121 F. Supp. 2d 72, 81 (D.D.C. 2000) (finding no
genuine issue of material fact where plaintiff provided no evidence “other than her own self-
serving and conclusory statement that she completed more work than [her co-worker] – which
would permit this Court to conclude that defendant’s reason for giving [the co-worker] rather
than plaintiff an ‘[o]utstanding’ rating is pretextual”); Saunders v. DiMario, 1998 WL 525798, at
*4 (D.D.C. Aug. 14, 1998) (“Plaintiff has otherwise offered the type of self-serving allegations
that are simply insufficient to establish pretext.”); Amiri v. District of Columbia, 1989 WL
37155, at *3 (D.D.C. Mar. 21, 1989) (“[Plaintiff] concluded in his own mind that ethic or
national origin discrimination must have been the basis for his failure to be selected and so
testified. These self-serving declarations are not credited.”).
In short, Counts I-III will be dismissed for no reasonable juror could find that plaintiff’s
failure to obtain a promotion was the result of either discrimination based on age or national
origin or retaliation.
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CONCLUSION
For the foregoing reasons, defendants’ motions for summary judgment and to dismiss are
GRANTED, all motions filed by plaintiff are DENIED, and the above-captioned action is
dismissed with prejudice.
_________/s/________________
ELLEN SEGAL HUVELLE
United States District Judge
Date: August 6, 2009
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