United States District Court, N.D. Illinois, Eastern Division
October 4, 2005.
MICHAEL R. CRANE, Plaintiff,
SERGEANT RICK JUSTER; OFFICER D. DENAULT; OFFICER M. BOYLE, OFFICER BRYMER; OFFICER A. COX; OFFICER K. DELANEY; OFFICER C. HOLT; OFFICER JOHN DOE; CITY OF WILMINGTON POLICE DEPARTMENT; and CITY OF WILMINGTON, a Municipal Corporation, Defendants.
The opinion of the court was delivered by: AMY ST. EVE, District Judge
MEMORANDUM OPINION AND ORDER
Plaintiff Michael Crane ("Crane") has brought the present
three-count First Amended Complaint alleging false imprisonment
in violation of the Fourth Amendment, malicious prosecution under
Illinois law, and a respondeat superior claim against Defendants
Wilmington Police Department, the City of Wilmington, and the
individual police officers. Before the Court is Defendants'
Motion for Summary Judgment pursuant to Federal Rule of Civil
Procedure 56(c). For the following reasons, the Court grants
I. Northern District of Illinois Local Rules
The Court derives the facts in the background section from the
parties' Northern District of Illinois Local Rule 56.1 Statements
of Fact. Facts in the parties' statements that are not
controverted are deemed admitted if supported by the record. See
Smith v. Lamz, 321 F.3d 660, 683 (7th Cir. 2003). Responses that do not cite to
specific references to the affidavits, depositions, and other
supporting materials are subject to the Court's discretion as to
their admission. See Ammons v. Aramark Unif. Servs., Inc.,
368 F.3d 809, 817-18 (7th Cir. 2004); Brasic v. Heinemann's
Inc., 121 F.3d 281, 284 (7th Cir. 1997). With these
standards in mind, the Court turns to the facts of this case.
On December 13, 2001, James Riggs and his sister Valerie Riggs
went to a laundromat in Wilmington, Illinois. (R. 29-1, Defs'
Local Rule 56.1 Statement, ¶ 1.) Valerie drove them to the
laundromat and on the way, they picked up James' girlfriend.
(Id. ¶ 2.) That same day, Crane and his two friends, Jacob
Peters and Sean Doyle, were riding their bicycles. (Id. ¶ 3.)
While riding their bicycles, Crane and his friends stopped to
talk to another friend, Sylyna Ficarella, who had pulled her car
over at the laundromat. (Id.; R. 44-1, Pl.'s Local Rule 56.1
Statement of Add'l Facts, ¶ 1.) Crane, Peters, Doyle, and
Ficarella were standing outside of the laundromat when Stephen
Krand and Jeremy Hicks arrived. (Defs' Stmt. ¶ 3, Pl.'s Stmt. ¶
1.) Shortly thereafter, Krand went into the laundromat to use the
bathroom. (Defs' Stmt. ¶ 4, Pl.'s Stmt. ¶ 3.)
After a few minutes, Hicks followed Krand into the laundromat
and then quickly returned. (Defs' Stmt. ¶ 5.) Hicks stated that
he had gone inside and kicked the bathroom door while Krand was
using the bathroom. (Id., Pl.'s Stmt. ¶ 3.) A few minutes
later, Krand came out of the laundromat and was very upset.
(Defs' Stmt. ¶ 6, Pl.'s Stmt. ¶ 4.) Krand asked who had kicked
the door open. (Defs' Stmt. ¶ 6.) Hicks told him that someone
from the back part of the laundromat had done so. (Id., Pl.'s
Stmt. ¶ 4.) Krand then went back inside the laundromat. (Defs' Stmt. ¶ 6, Pl.'s Stmt ¶ 4.)
Meanwhile, James Riggs noticed that people had come into the
laundromat while he was doing laundry and he went outside to the
back of the laundromat because he did not want any trouble.
(Defs' Stmt. ¶ 8.) Valerie Riggs, however, did not initially go
outside when the person came into the laundromat to use the
bathroom. (Id. ¶ 9.) When Valerie first saw this person enter
the laundromat, she thought it was Crane. (Id.) Eventually,
Valerie went outside to join James and his girlfriend. (Id. ¶
A short time later, Valerie returned to the laundromat where
she was confronted by a person who asked her who had opened the
bathroom door and she told him that she did not know what he was
talking about. (Id. ¶ 11.) After confronting her, this person
went outside to confront James Riggs. (Id.; Pl.'s Stmt. ¶ 5.)
While back in the laundromat, the person started yelling at James
and accused James of having opened the bathroom door. (Defs'
Stmt. ¶ 12, Pl.'s Stmt. ¶ 5.) The two of them then argued. (Defs'
Stmt. ¶ 12.) During the argument, the person punched James in the
nose. (Id. ¶ 13.) At that time, Valerie thought that it was
Crane who had punched James in the nose. (Id. ¶ 14.) After her
brother was punched, Valerie jumped on the person. (Id. ¶ 15,
Pl.'s Stmt. ¶ 5.)
After the incident, James Riggs went back into the laundromat
to get tissues for his bloody nose. (Defs' Stmt. ¶ 19.) Valerie
Riggs meanwhile called the police to report what had happened.
(Id.) City of Wilmington Police Officers Delaney and Denault
then met with James and Valerie Riggs at the laundromat. (Id. ¶
21, Def.'s Ex. 4, Denault Dep. at 15; Pl.'s Stmt. ¶ 9.) Valerie
explained to the officers what had happened, describing the
assailant as clean shaven, approximately six feet tall with dark
hair, 18-25 years old, wearing a hat, black jacket, and blue jeans. (Defs' Stmt. ¶ 22; Pl.'s Stmt. ¶ 10.) The only description
James gave was that the person smelled of alcohol. (Defs' Stmt. ¶
23, Pl.'s Stmt. ¶ 10.) The officers then canvassed the area.
(Defs' Stmt. ¶ 25, Pl.'s Stmt. ¶ 14.)
Meanwhile, Donald Riggs met his children, Valerie and James, at
the fire department where they had gone to get James medical
treatment. (Defs' Stmt. ¶ 26.) When Donald Riggs arrived, the
paramedics were treating James, so Valerie told her father what
had happened at the laundromat. (Id.) Donald Riggs then left
the fire department and started driving around to see if he could
find out if anyone saw anything. (Id. ¶ 27, Def.'s Ex. 6, at
14-15.) Donald Riggs met up with Officer Delaney, who explained
to him that they were canvassing the area. (Id.)
As Officer Denault was canvassing the area, he saw three
juveniles on bicycles riding toward him. (Id. ¶ 28, Pl.'s Stmt.
¶ 14.) One of the juveniles pulled a hood over his head and
continued riding toward the officer while the other two went in
the opposite direction. (Defs' Stmt. ¶ 28.) Officer Denault did
not recognize the juveniles who went in the opposite direction.
(Id., Pl.'s Stmt. ¶ 14.) Officer Denault then activated his
emergency lights and directed the juvenile on the bicycle to
approach him. (Defs' Stmt. ¶ 29.) The juvenile was Sean Doyle.
(Id., Pl.'s Stmt. ¶ 14.) Officer Denault asked Doyle if he had
been at the laundromat and Doyle responded that he had. (Defs'
Stmt. ¶ 30.) Doyle also told him that Crane and Peters had been
at the laundromat. (Id., Pl.'s Stmt. ¶ 15.) Doyle did not give
Officer Denault any additional information at that time. (Defs'
Stmt. ¶ 30, Pl.'s Stmt. ¶ 15.)
After Officer Denault spoke to Doyle, the officer arranged for
Valerie and James Riggs to drive to the location to determine if
they could identify Doyle as the assailant. (Defs' Stmt. ¶ 31.)
Valerie indicated that although Doyle was present at the
laundromat, he was not the person who had punched James. (Id. ¶ 32, Pl.'s Stmt. ¶ 16.) After
Valerie indicated that Doyle was not the assailant, the officer
let Doyle leave. (Defs' Stmt. ¶ 35, Pl.'s Stmt. ¶ 16.)
After talking to Doyle, Officer Delaney left the area and began
canvassing the neighborhood to no avail. (Defs' Stmt. ¶ 36, Pl.'s
Stmt. ¶ 17.) Afterwards, Officer Denault contacted James and
Valerie Riggs to inform them that the officers would create an
incident report and that an investigator would look into the
matter. (Defs' Stmt. ¶ 37, Pl.'s Stmt. ¶ 17.) Other than
preparing the report to be forwarded to the investigator,
Officers Denault and Delaney did not conduct any further
investigation. (Defs' Stmt. ¶ 38, Pl.'s Stmt. ¶ 24.)
A few days after the incident, Valerie, James, and Donald Riggs
went to the Wilmington Police Department to follow-up on the
incident. (Defs' Stmt. ¶ 39.) When they arrived at the police
station, Officer Rick Juster, a police detective, met them.
(Id. ¶ 40.) The parties dispute whether Valerie, James, or
Donald Riggs immediately told Officer Juster that they thought
Crane was the assailant. (Id. ¶ 41.) In any event, both parties
agree that Officer Juster relied on Officer Denault's and
Delaney's police reports for the facts regarding the incident
when he met with the Riggs. (Id. ¶ 40, Pl.'s Stmt. ¶ 29.)
Officer Denault's incident report indicated that Crane was a
possible suspect in the matter and a typewritten report by
Officers Denault and Delaney indicated that Crane was at the
laundromat the evening of the incident. (See Pl.'s Stmt., Ex.
Officer Juster then created two photographic identification
line-ups for Valerie and James to review independently. (Id. ¶¶
42, 44, Pl.'s Stmt. ¶ 30.) Officer Juster chose the people for
the photographic line-ups from the police department's database
of arrests. (Defs' Stmt. ¶ 42.) At his deposition, Officer Juster
testified that he chose photographs of people who were similar in
age, height, and stature. (Id.) Valerie picked Crane out of the
photographic line-up and then wrote her statement naming Crane as the assailant. (Id. ¶¶ 46,
49.) James Riggs independently picked Crane out of the
photographic line-up and filled out a handwritten statement as
well. (Defs' Stmt. ¶¶ 45, 47.) There is no indication in the
record that Officer Juster affirmatively encouraged or prompted
Valerie or James Riggs to choose Crane from the photographic
arrays. (Defs' Stmt. ¶¶ 45, 46.)
Thereafter, the police took the case to the Will County State's
Attorney Office and the State's Attorney made the decision to
charge Crane with a felony. (Id. ¶ 50.) A warrant was issued
for Crane's arrest after which Officer Andrew Cox arrested Crane
pursuant to the warrant. (Id. ¶ 51, Pl.'s Stmt. ¶ 38.) When
Officer Cox arrested Crane, Crane denied that he had hit James
Riggs and stated that Steve Krand had done so. (Defs' Stmt. ¶ 53,
Pl.'s Stmt. ¶ 38.) After the police processed Crane at the
Wilmington Police Department, they transported him to the Will
County Detention Facility. (Defs' Stmt. ¶ 54.)
On the day Crane was arrested, Crane's friend, Jacob Peters,
went to the police station to discuss Crane's arrest with Officer
Michael Boyle. (Id. ¶ 55.) Peters told Officer Boyle that Crane
had not committed the crime. (Id.) Officer Boyle explained that
he was not investigating the matter and directed Peters to speak
to Officer Juster. (Id.) Officer Boyle did not tell Officer
Juster about his conversation with Peters. (Id.)
A few weeks after Crane's arrest, Officer Juster testified
before a grand jury about the laundromat incident, stating that
based on James and Valerie Riggs' identifications and written
statements, Crane had punched Riggs. (Id. ¶ 56.) The jury
indicted Crane. Following Officer Juster's grand jury testimony,
the Will County State's Attorney Office directed Officer Juster
to interview Crane's friends who were present at the laundromat
the night of the incident. (Id., Pl.'s Stmt. ¶¶ 43, 44.) Officer Juster interviewed Sean Doyle and
Sylyna Ficarella, both of whom stated that Crane did not hit
James Riggs, but instead Steve Krand had. (Defs' Stmt. ¶ 58,
Pl.'s Stmt. ¶¶ 43, 44.) Following this additional investigation,
Officer Juster created a police report documenting his interviews
with Doyle and Ficarella and faxed it to the State's Attorney
Also after Crane's arrest, both Valerie and James Riggs
expressed second thoughts about Crane's guilt. (Id. ¶¶ 61, 62,
63.) When Donald Riggs learned about his children's second
thoughts, he contacted the State's Attorney Office to relay the
information. (Id. ¶ 64, Pl.'s Stmt. ¶ 46.) Donald Riggs also
talked to Officer Brymer at the Wilmington Police Department.
(Defs' Stmt. ¶¶ 64, 65.) At his deposition, Donald Riggs
testified that Officer Brymer told him he would do what he could
do and that he would leave a note for the detective on the case.
(Id. ¶ 65, Pl.'s Ex. N, D. Riggs Dep., at 46.) Officer Brymer,
however, never advised Officer Juster of his conversation with
Donald Riggs nor did Officer Brymer take any action regarding the
information Donald Riggs had provided. (Pl.'s Stmt. ¶ 47.)
Eventually, State's Attorney John Connor contacted Officer
Juster and directed him to re-interview James and Valerie Riggs
and to conduct an additional line-up containing Krand's
photograph. (Defs' Stmt. ¶ 66.) When Connor contacted Officer
Juster, however, the grand jury had already indicted Crane and
Officer Juster was no longer a detective responsible for
investigating criminal matters for the police department. (Id.
¶ 67.) Because his official duties no longer included
investigations, Officer Juster forwarded State's Attorney
Connor's request to the appropriate individual in the police
department and advised Connor that a new detective would handle
the matter. (Id. ¶ 68.) Connor testified that he was satisfied
with Officer Juster's response to his request. (Id. ¶ 69.)
Crane spent sixty-six days in the Will County Jail. (Pl.'s
Stmt. ¶ 50.) On April 7, 2003, the State's Attorney dismissed the
charges against Crane. (Id.)
SUMMARY JUDGMENT STANDARD
Summary judgment is proper when "the pleadings, depositions,
answers to interrogatories, and admissions 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 a
judgment as a matter of law." Fed.R.Civ.P. 56(c). A genuine issue
of material fact exists only if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party."
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248,
106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). In determining whether a
genuine issue of material fact exists, the Court construes all
facts in a light most favorable to the non-moving party and draws
all reasonable inferences in favor of that party. Id. at 255.
The party seeking summary judgment has the burden of establishing
the lack of any genuine issue of material fact. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265
(1986). The existence of a factual dispute is not sufficient to
defeat a summary judgment motion, instead the non-moving party
must present definite, competent evidence to rebut the summary
judgment motion. Butts v. Aurora Health Care, Inc.,
387 F.3d 921, 924 (7th Cir. 2004).
I. False Imprisonment
First, Crane brings a false imprisonment claim pursuant to the
Fourth Amendment made applicable to the states by virtue of the
Fourteenth Amendment. See 42 U.S.C. § 1983. Section 1983 provides a cause of action against any person who, acting
under color of state law, deprives another person of a right,
privilege, or immunity secured by the United States Constitution
or federal laws. See 42 U.S.C. § 1983; Lekas v. Briley,
405 F.3d 602, 606 (7th Cir. 2005). The existence of probable
cause to arrest, however, precludes a Section 1983 lawsuit for
false imprisonment. Morfin v. City of East Chicago,
349 F.3d 989, 997 (7th Cir. 2003) (citations omitted). The Court thus
turns to the legal basis for Crane's arrest.
"[P]robable cause requires only a probability or substantial
chance of criminal activity, not an actual showing of such
activity." Illinois v. Gates, 462 U.S. 213, 243 n. 13,
103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). To have probable cause for an
arrest, police officers must reasonably believe, in light of the
facts and circumstances within their knowledge at the time, that
the suspect has committed or was committing a crime. United
States v. Parra, 402 F.3d 752, 763-64 (7th Cir. 2005)
(citations omitted); see also Gates, 462 U.S. at 232 (probable
cause "turn[s] on the assessment of probabilities in particular
factual contexts not readily, or even usefully, reduced to a
neat set of legal rules").
Here, Officer Cox arrested Crane pursuant to a valid arrest
warrant. Officer Juster obtained the arrest warrant based on the
facts and circumstances that he knew at that time, namely, James
and Valerie Riggs' identification of Crane as the assailant in
separate photographic line-ups and in their written statements.
Officer Juster also relied on Officer Denault's and Delaney's
reports. Officer Denault's incident report named Crane as a
possible suspect and the typewritten report by Officers Denault
and Delaney indicated that Crane was at the laundromat the
evening of the incident. Based on this evidence, the police had
probable cause to arrest Crane. See Beauchamp v. City of
Noblesville, 320 F.3d 733, 743 (7th Cir. 2003) (complaint of single witness or victim alone is generally
sufficient to establish probable cause). It was not until after
Crane's arrest that Valerie and James Riggs expressed second
thoughts about Crane's guilt and Donald Riggs contacted the Will
County State's Attorney to relay this information. See id.
(courts look "at what the officer knew at the time he sought the
warrant, not at how things turned out in hindsight").
A. Photographic Line-up
Nonetheless, Crane contends that the photographic arrays used
to identify him as the assailant were unnecessarily suggestive,
and thus these arrays undermine a finding of probable cause.
Specifically, Crane asserts that Valerie Riggs gave the police a
description of the assailant as clean shaven, approximately six
feet tall, with dark hair, and approximately 18-25 years old, yet
Crane was the only photograph of the six in the array that
specifically fits this description.*fn1
An identification procedure is unduly suggestive only where it
creates "a very substantial likelihood of irreparable
misidentification." Simmons v. United States, 390 U.S. 377,
384, 88 S.Ct. 967, 19 L.Ed.2d 1247 (1968). As such, an unduly
suggestive lineup alone cannot be the basis for a constitutional
claim against police officers because "[t]he rule against
admission of evidence from unnecessarily suggestive lineups is a
prophylactic rule designed to protect a core right, that is the
right to a fair trial, and it is only the violation of the core
right and not the prophylactic rule that should be actionable
under § 1983." Hensely v. Carey, 818 F.2d 646, 649 (7th
Cir. 1987). Crane, however, is not basing his claim for damages
under Section 1983 on allegations of an unduly suggestive photo array. Instead, he
contends that Defendants did not have probable cause to arrest
him because of the suggestive photographic line-ups.
Based on the Court's review of the six photographs in the
line-ups and the evidence in the record, the Court would be
hard-pressed to conclude that the photographic line-ups were
unduly suggestive. See United States v. Carter, 410 F.3d 942,
948 (7th Cir. 2005) (six sufficient number for line-up).
Although the photographs in the array included three unshaven
men, one individual who was slightly balding, and an individual
who was blond, these differences alone are not substantial enough
for the photographic arrays to be considered unduly suggestive.
See, e.g., United States v. Galati, 230 F.3d 254, 259 (7th
Cir. 2000) (different hair color and length not substantial
difference); United States v. Funches, 84 F.3d 249, 253
(7th Cir. 1996) (line-up not unduly suggestive even though
defendant was oldest, shortest, and weighed the least). In fact,
the individuals had characteristics in common all of the
individuals were within 3 inches of six feet tall, they appear to
be approximately 18-25 years old, the individuals are all white
males, and all but one were dressed similarly. As the Seventh
Circuit recognized, "[a] lineup of clones is not required."
United States v. Arrington, 159 F.3d 1069, 1073 (7th Cir.
Even if the photographic arrays were suggestive, Defendants had
probable cause to arrest Crane based on Officer Denault's
incident report stating that Crane was a possible suspect and the
typewritten report indicating that Crane was at the scene of the
crime. See Malley v. Briggs, 475 U.S. 335, 345-46,
106 S.Ct. 1092, 89 L.Ed.2d 271 (1986) ("Only where the warrant application
is so lacking in indicia of probable cause as to render official
belief in its existence unreasonable will the shield of immunity
be lost"). Finally, there is no evidence in the record that
Officer Juster affirmatively encouraged or prompted Valerie or
James Riggs to choose Crane from the photographic line-ups. Because Crane has not established
a genuine issue of material fact, his arguments based on the
photographic arrays fails as a matter of law.
B. Duty to Investigate
Crane also argues that because Valerie and James Riggs'
eyewitness and victim accounts were not reliable, the police had
a duty to conduct further investigation before arresting Crane.
"When police officers obtain information from an eyewitness or
victim establishing the elements of a crime, the information is
almost always sufficient to provide probable cause for an arrest
in the absence of evidence that the information, or the person
providing it, is not credible." Pasiewicz v. Lake County Forest
Pres. Dist., 270 F.3d 520, 522, 524 (7th Cir. 2001). In
other words, if a reasonably credible victim or eyewitness gives
the police sufficient information to establish probable cause,
the police have no duty to conduct any further investigation at
that time. Id. Therefore, the Court turns to whether Valerie
and James Riggs' accounts were not credible.
Besides his claim that the line-ups were unduly suggestive,
Crane does not explain why Valerie and James Riggs' eyewitness
and victim accounts are unreliable nor does he support this claim
with undisputed facts in the record. For instance, Crane surmises
that Valerie Riggs' identification was a "tentative guess." He
further argues that the encounter between Valerie, James, and the
assailant was fast and heated, and thus they had a limited
ability to accurately identify the person who hit James. Crane
also argues that had Officers Denault and Delaney continued their
investigation on the night of the incident, they could have found
him and obtained an on-site eyewitness identification by James
and Valerie Riggs that he was not the assailant. These arguments
are mere conjecture and not supported by definite, competent evidence as required at this procedural posture. See Butts,
387 F.3d at 924. In sum, Crane's arguments are based on speculation
and misstatements of the facts in the record. Because Crane fails
to establish any genuine issues of material fact, his claim that
the police had a duty to further investigate fails.
II. Malicious Prosecution Under Illinois Law
Next, Crane brings a state law claim of malicious prosecution.
To successfully establish a claim for malicious prosecution under
Illinois law, Crane must show: (1) the institution and
prosecution of judicial proceedings by Defendants; (2) a lack of
probable cause for those proceedings; (3) malice in instituting
the proceedings; (4) termination of the judicial proceeding in
his favor; and (5) that he suffered damages. Cult Awareness
Network v. Church of Scientology Int'l, 177 Ill.2d 267, 272, 226
Ill.Dec.604, 685 N.E.2d 1347, 1350 (1997); Reed v. Doctor's
Assocs., Inc., 355 Ill.App.3d 865, 873, 291 Ill.Dec. 848,
824 N.E.2d 1198 (Ill.App.Ct. 2005).
Crane's malicious prosecution claim fails for several reasons.
As discussed, the police had probable cause to arrest Crane.
Johnson v. Target Stores, Inc., 341 Ill.App.3d 56, 73,
274 Ill.Dec. 795, 791 N.E.2d 1206, 1219 (Ill.App.Ct. 2003) ("failure
to prove a lack of probable cause is fatal to a claim for
malicious prosecution"). Furthermore, Crane has not presented
definite, competent evidence that the defendant officers acted
with malice, that is, with the intent to commit a wrongful act in
instituting the judicial proceedings. See id. at 76. In fact,
the police officer defendants had no role in instituting the
judicial proceedings after the grand jury indictment because the
State's Attorney, not the police, prosecute criminal actions.
See Reed v. City of Chicago, 77 F.3d 1049, 1053 (7th Cir.
1996) (although wrongful arrest may be first step towards malicious prosecution, chain of causation broken by
indictment). Because there are no genuine issues of material
fact, the Court grants Defendants' summary judgment motion on
Crane's malicious prosecution claim as a matter of law.
III. Respondeat Superior
Crane brings his last claim based on respondeat superior. Under
the Illinois Local Government and Governmental Employees Tort
Immunity Act, a local public entity is not liable for an "injury
resulting from an act or omission of its employee where the
employee is not liable." Cross v. City of Chicago,
352 Ill.App.3d 1, 6, 287 Ill.Dec. 312, 815 N.E.2d 956, 965
(Ill.App.Ct. 2004) (citing 745 ILCS 10/2-109). Accordingly, the
City of Wilmington and the Wilmington Police Department cannot be
held liable under the theory of respondeat superior because the
defendant police officers were not liable in the first instance.
Finally, a municipality cannot be held liable solely on the
basis of respondeat superior in Section 1983 actions. Calhoun v.
Ramsey, 408 F.3d 375, 379 (7th Cir. 2005). Therefore,
Crane's last claim fails.
For these reasons, the Court grants Defendants' motion for
summary judgment. The Court denies Defendants' motion to strike
Plaintiff's references to his expert as moot.
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