UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

CHERITA SKIPPER, CASE NO. 14-cv-14281

 HONORABLE GEORGE CARAM STEEH

Plaintiff,

v.

UNITED STATES OF AMERICA,

Defendant.

 /

OPINION AND ORDER GRANTING DEFENDANT’S MOTION

FOR SUMMARY JUDGMENT (DOC. #18) AND DISMISSING CASE

Plaintiff Cherita Skipper (“plaintiff”) brings this action against the defendant United

States of America (“defendant”) under the Federal Tort Claims Act, 28 U.S.C. §1346, et

seq. Plaintiff alleges that she sustained injuries in a motor vehicle accident with a United

States Postal Service (“USPS”) vehicle in Detroit, Michigan, affecting her ability to lead a

normal life. Specifically, plaintiff claims injuries to her right shoulder, right knee, neck, and

lower back. As a result, plaintiff seeks to recover third-party non-economic benefits under

Michigan’s No-Fault Act, Mich. Comp. Laws § 500.3101, et seq. Now before the court is

defendant’s motion for summary judgment arguing that plaintiff has not established a

compensable injury under the No-Fault Act. (Doc. #18). The court dispensed with oral

argument pursuant to Eastern District of Michigan Local Rule 7.1(f)(2). For the reasons

that follow, defendant’s motion for summary judgment will be granted.

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I. BACKGROUND

The facts that follow and the inferences that can be drawn from those facts are taken

in a light most favorable to the plaintiff, as the court must do in ruling on a motion for

summary judgment.

A. The Accident

On January 3, 2014, around 6:00 p.m. to 7:00 p.m., plaintiff was driving a 2002

Dodge Neon in Detroit, Michigan. Plaintiff’s son, Denzel, was a backseat passenger in the

vehicle, and his girlfriend, Laquita, was in the front passenger seat. As the Dodge Neon

was completely stopped on Fenkell street waiting to turn left onto Pierson street, it was hit

from behind by a USPS vehicle driven by Denise Burgen, a USPS letter carrier. Both

vehicles suffered minimal damages. Plaintiff’s vehicle did not require any repairs.

Plaintiff testified at her deposition that the impact of the crash caused her right knee

to hit the dashboard and that she hit her head on the steering wheel. Plaintiff stated, “Out

of nowhere I remember a hard hit and when I opened my eyes I just remember — I hit my

head. I remember my right leg going up into the dashboard and I remember going forward

and hit my head.” (Pl’s. Dep. Tr. 10:17–23). Plaintiff noticed that she had blurry vision for

approximately two-to-three minutes after the impact. She believes that she lost

consciousness for a short period of time. When plaintiff regained consciousness, she

pulled her vehicle over to the side of the road to avoid incoming traffic.

Eventually, police officers and an ambulance arrived at the scene. Plaintiff told an

emergency medical technician (“EMT”) that her neck, head and knee were all hurting. The

EMT helped plaintiff out of the car, placed a neck brace on her, and transported her to the

ambulance on a stretcher.

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Plaintiff was taken by ambulance to DMC Sinai-Grace Hospital. At the hospital,

plaintiff underwent a CAT scan and multiple x-rays were taken. Plaintiff testified that she

was told at the hospital that she suffered from a concussion. She was discharged from the

hospital after a couple of hours and she went home.

B. Pre-Accident Medical History

Plaintiff is 40 years old. Plaintiff’s well-documented medical history traces back to

at least 2000. (Doc. #18-7 at 3).

In 2003, when plaintiff was 28 years old, she was treated at Sinai-Grace Hospital for

lower back pain after having surgery — umbilical herniorrhaphy1

 — two weeks prior. (Id.

at 4). Plaintiff was given Valium, morphine and Naprosyn, and she was discharged home

from the hospital. (Id. at 5).

In 2004, plaintiff reported to the emergency at Sinai-Grace Hospital with complaints

of a right breast mass and a migraine headache. (Id. at 6). It was noted that plaintiff had

been recently hospitalized for anemia and received blood transfusions, and, at that time,

her migraine headaches were much worse in intensity. (Id.). The final diagnosis was acute

migraine cephalgia and right breast mass, etiology unknown. (Id.).

In 2006, plaintiff had an acromioplasty procedure completed at Henry Ford Hospital

for her right shoulder.2

 (Doc. #18-8 at 4). She subsequently reported to physical therapy

1 Umbilical herniorrhaphy treats an umbilical hernia, which “occurs when part of

the intestine protrudes through the umbilical opening in the abdominal muscles.” See

Mayo Clinic, Umbilical hernia definition, available at

http://www.mayoclinic.org/diseases-conditions/umbilical-hernia/basics/definition/con-200

25630.

2

“Arthroscopic acromioplasty is used to treat severe cases of impingement

syndrome, a condition resulting from an injury to the rotator cuff muscles and often seen

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at Henry Ford with “complaints of right shoulder pain ranging from 5 to 10 on a scale of 0

to 10. . . .” (Id.). It was noted that plaintiff demonstrated “decreased passive range of

motion at 90 degrees of flexion, 7 degrees of abduction, and 0 degrees of external

rotation.” (Id.). It was also noted that plaintiff required assistance with bathing and

dressing, and that she was unable to perform household chores for two to three weeks. 

(Id. at 4–5). The clinical impression was that plaintiff would benefit from “a program

consisting of upper extremity stretching and strengthening. . . .” (Id. at 4). 

Also in 2006, plaintiff reported to Henry Ford Medical Center Emergency Department

with right lower back pain that had been persistent for the prior three days, stating that she

had a pain level of 9 out of 10. (Id. at 6). She visited the same hospital again in 2009

reporting lower stomach pain for the prior 2 weeks. (Id. at 8). Upon departure from the

hospital, plaintiff reported a pain level of 6 out of 10. (Id. at 9).

Plaintiff’s current primary care physician, Nicholas A. Marsheh, M.D., began treating

plaintiff sometime in 2006. (Marsheh Dep. Tr. 6:12–18). Dr. Marsheh testified that plaintiff

has the following medical conditions that were present prior to the motor vehicle accident

involved in this case: high cholesterol, chronic stable asthma, systemic lupus, chronic back

pain with occasional flare-ups, chronic abdominal pain, low potassium which can affect the

heart, osteopenia (a stage before osteoporosis), generalized arthritis in her entire body

significant enough to require treatment with medication, and diabetes. (Id. at 8:1–18:9).

in aging adults. In the impingement syndrome, the tendons of the rotator cuff muscles

become irritated and inflamed as they pass through the subacromial space, the

passage beneath the acromion.” See Arthroscopic Acromioplasty, Singapore Sports

and Orthopaedics Clinic, available at

www.orthopaedics.com.sg/treatments/arthroscopic-acromioplasty. This results in “pain,

weakness and loss of movement at the shoulder.” Id.

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Dr. Marsheh testified that plaintiff’s most significant medical condition is her

abdominal pain, related to her systemic lupus. (Id. 10:6–13). Dr. Marsheh stated that the

pain started around 2008 or 2009. (Id. 11:2–4). Asked about the general effect that

plaintiff’s abdominal pain has on her, Dr. Marsheh testified:

I think it made her lose even her job, affected her daily life. Took a big toll on

her life with the multiple surgeries that she acquired. And I remember at one

time she had to leave her job as – I think somewhere in the dietary

department in Crittenton [Hospital].

(Id. 10:20–24). In addition, Dr. Marsheh testified that the lupus “is known to cause the

arthritis, and severe pain,” and plaintiff was “already requiring aggressive treatment for that,

including daily steroids and pain management.” (Id. 15:11–14).

Since 2006, plaintiff has been taking multiple medications, including muscle relaxers,

pain medication, and anti-inflammatory medication. (Id. 15:15–16:5). Because her pain

level has been moderate to severe for a long time, which Dr. Marsheh considers to be “a

lot of pain,” plaintiff’s medications are numerous. (Id. 16:11–16). Dr. Marsheh testified that

plaintiff’s condition, based on her multiple problems, was “progressively getting worse”

between 2012 and 2015, and that she was being prescribed more pain medication that

treated her universal pain. (Id. 17:3–13; 20:19–20). Indeed, “the pain and the disease was

affecting her joints, affecting her strength making her neurologically weak[,]” and “her

medical condition [was] deteriorating.” (Id. 20:9–13; 24:1–5).

Medical records in late 2011 show that plaintiff complained of “back pain with pain

radiating down her right leg all the way to the calf.” (Doc. #18-11 at 19). Her diagnosis was

“[a]cute back pain, acute sciatica, [and] acute atypical chest pain.” (Id. at 20). Due to her

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lupus and asthma, in early 2012, Dr. Marsheh restricted plaintiff from bending, lifting,

pushing and pulling, and standing for long periods of time. (Doc. #18-12 at 4).

Plaintiff continued seeking medical treatment prior to the accident involved in this

case. On April 15, 2013, plaintiff was reporting knee and back pain, pain in the joints, and

muscle weakness. (Id. at 19:3–16). On May 13, 2013, plaintiff visited Dr. Marsheh’s

partner, Dr. Asmar, complaining of joint pain, swelling and stiffness, and pain radiating to

her shoulder, elbow, forearm, writs, hand, buttock, hip, thigh, and knee. (Id. 20:23–21:8). 

Indeed, by May of 2013, plaintiff regularly needed a walker to get around. (Id. 20:16–17;

22:4–12). On October 14, 2013, plaintiff visited Dr. Asmar complaining of chronic

abdominal pain. (Id. 22:24–23:14).

Because of her debilitating condition, plaintiff filed for Social Security disability

benefits in June 2013. In her application for benefits, plaintiff stated that she became

unable to work because of her illnesses, injuries and conditions that have caused her pain

since March 14, 2009, and that her symptoms first interfered with her ability to work as

early as 2001. (Doc. #18-22 at 2). In her claim for benefits, plaintiff represented that she

had not returned to work since April 9, 2012, “due to the intensity of her medical

problems[.]” (Id. at 14). In addition, it was noted that plaintiff was issued a cane and walker

on November 15, 2011, and that she continued to use the cane. (Id. at 16).

Full Social Security disability benefits were granted to plaintiff on June 19, 2013. (Id.

at 21). In the administrative law judge’s (“ALJ”) findings of fact and conclusions of law

awarding plaintiff’s benefits, the ALJ stated:

The claimant has the following severe impairments: systemic lupus

erythematosus (SLE) with myalgias and arthralgias affecting multiple joints

and muscles with joint stiffness with clinical need for walking aid (wheeled

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walker) to reduce pain (13F); chronic bronchial asthma; sensory

polyneuropathy affecting right sural and superficial peroneal nerves and left

sural neuropathy (20F); disc bulge at L4-5 and L5-S1 and facet arthropathy

(9F); left hip tendonosis (19F); and a depressive disorder (14F). . . .

(Id. at 24). The ALJ credited plaintiff’s testimony that she had “the following symptoms:

bilateral leg pain, left hip pain, low back pain to the left hip, frequent bilateral hand

cramping, back spasms, constant abdominal pain, asthma, lupus flare-ups, depression, and

fatigue.” (Id. at 25). The ALJ also credited plaintiff’s testimony that “she could lift very little;

sit/stand/walk very little; perform little to no postural activities; and that she needed to be

carried up and down the stairs and that she spends most days at her aunt’s house so she

is with someone all the time.” (Id.). Plaintiff continues to receive Social Security benefits

for disability unrelated to the accident.

C. Post-Accident Medical History

After the accident, plaintiff was referred by Dr. Marsheh to Raj Bothra, M.D. at the

Pain Center in Warren, Michigan. (Doc. #20 at 34). On January 14, 2014, plaintiff

complained to Dr. Bothra of “neck pain going to both shoulders, arms and hands, mid back

pain, lower back pain going to both hips and both legs, [and] knee pain.” (Id.).

Shortly after, on January 21, 2014, plaintiff was treated by Dr. Asmar. (Marsheh

Dep. Tr. 13:8–15; 25:14–19). Plaintiff complained about chronic back pain and being

involved in a car accident. (Id. 13:10–12; 25:20–25). Imaging studies were completed, and

plaintiff also underwent an MRI at an outside facility. (Id. 13:18). The results showed

“degenerative changes” of the back and an impingement involving the right hip. (Id.

13:18–23). Plaintiff did not suffer any fractures. (Id. 13:21–23).

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Throughout 2014 and 2015, plaintiff received injections to treat her shoulder and

knee pain. She also underwent physical therapy and chiropractic care with David Sandler,

D.C. Sandler conducted spinal manipulations, cervical traction and mechanical massages.

In March 2015, plaintiff underwent an independent medical evaluation (“IME”) with

Stefan Glowacki M.D., an orthopedic doctor. (Doc. #20 at 130). Based on a review of

multiple medical records and a physical examination, Dr. Glowacki opined that plaintiff had

(1) a partial tear of a medial collateral ligament, (2) a partial tear of her right shoulder

ligament, and (3) contusion of the cervical spine and lumbosacral spine. (Id. at 133). Dr.

Glowacki concluded:

Unfortunately after the injury she still has pain. She has had treatments,

physical therapy, and Chiropractic treatments but her condition did not

improve and she cannot do much by herself. She needs domestic help and

attendant care 10 hours a day 7 days a week. Unfortunately she is not able

to do anything by herself. In the near future she will need surgical

intervention of the right knee.

(Id. at 133). 

In April 2015, plaintiff underwent an IME with Steven Arbit, MD, from Specialists in

Rehabilitation Medicine, P.C. (Doc. #18-20 at 4). In addition to conducting a physical

examination of plaintiff, Dr. Arbit reviewed plaintiff’s medical records. (Id.). Dr. Arbit

concluded:

After completing a comprehensive history and physical examination it is my

opinion there are issues with symptom magnification. Her right knee

examination is inconsistent and really with most issues one would expect that

with the way she moves it or limits it there would be a fracture, though there

is no effusion and besides complaints of pain and complaints of limited range

of motion her knee examination is good. She has complaints of tenderness

to the upper trapezius. She has inconsistencies on exam and poor effort with

a ratchety giveaway weakness pattern for strength pattern.

* * * *

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. . . I am not seeing any abnormality, which would be consistent with

traumatically induced issues. I do not see a need for further medical care,

household replacement services, or attendant care.

(Id. at 8).

Moreover, Dr. Marsheh testified that plaintiff’s current medical condition continues

to deteriorate, but he does not believe that it is related to the accident involved in this case. 

(Id. 24:24–25:2). Rather, Dr. Marsheh believes plaintiff’s current medical condition is

related to her lupus and her chronic pain, which includes pain in her abdominal area and

her back. (Id. 25:3–7). Indeed, Dr. Marsheh testified that plaintiff is “not somebody totally

healthy getting into a car accident, and then you can tell where the stages are. Here we

already have a patient on heavy pain medication, going to physical therapy, even pain

management referral at one point.” (Id. 29:6–12).

D. Dr. Femminineo’s Expert Opinion

The government retained Joseph P. Femminineo, M.D. to provide an expert opinion

as to the extent of plaintiff’s alleged injuries. Dr. Femminineo authored a report on

September 24, 2015, after reviewing a significant number of plaintiff’s medical records. 

(Doc. #18-19). Dr. Femminineo opined that there was nothing in the imaging studies “that

would translate into any long term sequelae as it relates to the accident in question.” (Id.

at 3). In addition, Dr. Femminineo opined that plaintiff did not require any additional

household chore assistance after the accident different from household chore assistance

she was already receiving prior to the accident. (Id. at 4). Dr. Femminineo concluded that

plaintiff’s physical limitations predated the accident in this case, and that there were no long

term injuries sustained as a result of the accident. (Id.).

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E. Plaintiff’s Testimony

Plaintiff testified that her knee pain is more severe after the accident, that she has

to use a cane to walk at some point each day, and that her shoulder pain had resolved in

2007 and returned only after the accident. In addition, plaintiff testified that, although she

used to take medication every other day, she now takes medication every day since the

accident. After the accident, plaintiff testified that she cannot brush her hair, lift groceries

or shop for herself, put on or take off shirts, and that she has trouble sleeping.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 56(c) empowers the court to render summary

judgment "forthwith if 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 judgment as a matter of law." See

Redding v. St. Eward, 241 F.3d 530, 532 (6th Cir. 2001). The Supreme Court has affirmed

the court's use of summary judgment as an integral part of the fair and efficient

administration of justice. The procedure is not a disfavored procedural shortcut. Celotex

Corp. v. Catrett, 477 U.S. 317, 327 (1986); see also Cox v. Kentucky Dep’t of Transp., 53

F.3d 146, 149 (6th Cir. 1995).

The standard for determining whether summary judgment is appropriate is "'whether

the evidence presents a sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.'" Amway Distrib. Benefits

Ass’n v. Northfield Ins. Co., 323 F.3d 386, 390 (6th Cir. 2003) (quoting Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 251-52 (1986)). The evidence and all reasonable inferences

must be construed in the light most favorable to the non-moving party. Matsushita Elec.

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Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Redding, 241 F.3d at 532

(6th Cir. 2001). "[T]he 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, 477 U.S. at 247-

48 (emphasis in original); see also Nat’l Satellite Sports, Inc. v. Eliadis, Inc., 253 F.3d 900,

907 (6th Cir. 2001).

If the movant establishes by use of the material specified in Rule 56(c) that there is

no genuine issue of material fact and that it is entitled to judgment as a matter of law, the

opposing party must come forward with "specific facts showing that there is a genuine issue

for trial." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 270 (1968); see also McLean

v. 988011 Ontario, Ltd., 224 F.3d 797, 800 (6th Cir. 2000). Mere allegations or denials in

the non-movant's pleadings will not meet this burden, nor will a mere scintilla of evidence

supporting the non-moving party. Anderson, 477 U.S. at 248, 252. Rather, there must be

evidence from which a jury could reasonably find for the non-movant. McLean, 224 F.3d

at 800 (citing Anderson, 477 U.S. at 252).

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III. DISCUSSION

Under the FTCA, liability “is usually determined by referencing state law.” Premo

v. United States, 599 F.3d 540, 545 (6th Cir. 2010) (citation omitted). Here, both parties

agree that the applicable law is Michigan’s No-Fault Act. Plaintiff’s claim is a third-party

action under the No-Fault Act, i.e. a traditional negligence claim. A third-party action may

seek economic damages, non-economic damages, or both.

A. Economic Damages

Generally, a first-party action, i.e. an action brought by an accident victim against

his or her own insurance company, permits the recovery of personal injury protection

(“PIP”) benefits. These benefits are awarded without regard to fault. Mich. Comp. Laws

§ 500.3105(2). First-party benefits include allowable medical expenses such as costs

associated with recovery and rehabilitation, loss of income during the first 3 years after the

date of the accident, and replacement services. Mich. Comp. Laws § 500.3107.

A third-party action also permits the recovery of some economic damages. Thirdparty actions may seek PIP benefits above and beyond the benefits that are permitted in

first-party actions. These include “[d]amages for allowable expenses, work loss, and

survivor’s loss . . . in excess of the daily, monthly, and 3-year limitations contained in those

sections.” Mich. Comp. Laws § 500.3135(3)(c).

Defendant argues that plaintiff has not incurred (nor does she appear to be seeking)

any economic damages defined in § 500.3135(3)(c). Plaintiff does not challenge

defendant’s position. Indeed, plaintiff’s opposition brief focuses on her attempt to establish

a genuine issue of material fact as to whether her ability to lead a normal life has been

affected. As will be explained, this standard is applicable in determining whether non-

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economic damages are recoverable. Because plaintiff has not offered any proof that she

is entitled to economic damages for a third-party claim pursuant to § 500.3135(3)(c), nor

does she appear to be seeking such benefits, defendant is entitled to summary judgment

as it relates to any purported claim for economic damages.

B. Non-Economic Damages

Non-economic damages are also recoverable in a third-party action if a person

injured by a motor vehicle has “suffered death, serious impairment of body function, or

permanent serious disfigurement.” Mich. Comp. Laws § 500.3135(1). A “serious

impairment of body function” means “an objectively manifested impairment of an important

body function that affects the person’s general ability to lead his or her normal life.” Mich.

Comp. Laws § 500.3135(7); McCormick v. Carrier, 795 N.W.2d 517 (Mich. 2010). The

Michigan Supreme Court has explained the court’s role in determining whether a question

of fact exists as to the serious impairment threshold:

The court should determine whether there is a factual dispute regarding the

nature and extent of the person’s injuries, and, if so, whether the dispute is

material to determining whether the serious impairment of body function

threshold is met. If there is no factual dispute, or no material factual dispute,

then whether the threshold is met is a question of law for the court.

McCormick, 795 N.W.2d at 537.

Defendant argues that plaintiff has not established a serious impairment because

(1) she did not suffer a serious injury in the accident, and (2) her ability to lead a normal life

has not been affected by the accident. The court agrees that plaintiff has not established

a genuine issue of material fact surrounding the effect on her ability to lead a normal life

after the accident. Because summary judgment is appropriate on this basis alone, it is not

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necessary to discuss whether plaintiff has established that she suffered a serious injury in

the accident.

Assuming without deciding that plaintiff had established a serious injury that was

caused by the accident, she has not met her burden in showing that her inability to lead a

normal life resulted from the accident. As the Michigan Supreme Court explained in

McCormick, for a person’s ability to lead a normal life to be affected, the injury must “have

an influence on some of the person’s capacity to live in his or her normal manner of living.” 

795 N.W.2d at 530. Thus, “[d]etermining the effect or influence that the impairment has

had on a plaintiff’s ability to lead a normal life necessarily requires a comparison of the

plaintiff’s life before and after the incident.” Id.

Here, plaintiff argues:

Before the accident, although she had lupus, she had full use of her right

shoulder, pain free. She could walk without a cane 3 days a week. Ms.

Skipper was able to brush her hair without assistance and had a social life

which was far more active than it was after the accident. As a result of the

impairments she has required the assistance of others to accomplish

household and personal care tasks....

In addition, because of the impairments, she has required extensive

medical and physical therapy care.

(Pl’s. Resp. Br. at 16).

Plaintiff’s argument that her ability to lead a normal life was affected by the accident

is contradicted by the overwhelming evidence in the record. The medical evidence

described above details plaintiff’s injuries and limitations long before the accident. By 2013,

when plaintiff applied for Social Security benefits, she represented that “she could lift very

little; sit/stand/walk very little; perform little to no postural activities; and that she needed

to be carried up and down the stairs and that she spends most days at her aunt’s house

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so she is with someone all the time.” (Doc. #18-22 at 25). Dr. Marsheh testified that

plaintiff’s systemic lupus, dating back to 2008 or 2009, affected her ability to lead a normal

life. Specifically, Dr. Marsheh testified that “it made her lose even her job, affected her

daily life. Took a big toll on her life with the multiple surgeries that she acquired.” (Marsheh

Dep. Tr. 10:20–24). Dr. Marsheh further explained that plaintiff’s condition is degenerative

in nature, that it “is known to cause . . . arthritis, and severe pain,” and plaintiff was “already

requiring aggressive treatment for that, including daily steroids and pain management.” (Id.

15:11–14). As late as May 13, 2013, plaintiff visited Dr. Marsheh’s partner, Dr. Asmar,

complaining of joint pain, swelling and stiffness, and pain radiating to her shoulder, elbow,

forearm, writs, hand, buttock, hip, thigh, and knee. (Id. 20:23–21:8). Dr. Marsheh

explained that plaintiff’s impairments were progressively getting worse between 2012 and

2015 requiring more pain medication. (Id. 17:3–13; 20:19–20). Her lupus was “affecting

her joints, affecting her strength making her neurologically weak[,]” and “her medical

condition [was] deteriorating.” (Id. 20:9–13; 24:1–5). 

Plaintiff’s reliance on Dr. Glowacki’s IME report is misplaced. Nothing in Dr.

Glowacki’s report establishes that plaintiff’s ability to lead a normal life was affected by the

accident. Indeed, as explained above, plaintiff’s limitations existed prior to the accident. 

Dr. Glowacki’s report does not establish that anything was different after the accident. 

In sum, plaintiff has not met her burden in establishing a triable question of fact

regarding the accident’s alleged effect on her ability to lead a normal life. Accordingly,

defendant is entitled to summary judgment.

IV. CONCLUSION

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For the reasons explained above, defendant’s motion for summary judgment is

GRANTED. This case is DISMISSED.

IT IS SO ORDERED.

Dated: March 3, 2016

s/George Caram Steeh 

GEORGE CARAM STEEH

UNITED STATES DISTRICT JUDGE

CERTIFICATE OF SERVICE

Copies of this Order were served upon attorneys of record on

March 3, 2016, by electronic and/or ordinary mail.

s/Marcia Beauchemin

Deputy Clerk

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