IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

INTERNATIONAL LONGSHOREMEN’S *

ASSOCIATION, AFL-CIO, *

LOCAL 1984, *

 * 

Plaintiff, *

 *

vs. * CIVIL ACTION NO. 14-00589-B

 *

ALABAMA STATE PORT AUTHORITY, *

 *

Defendant. *

ORDER 

This matter is before the Court on Defendant Alabama State 

Port Authority’s Motion for Summary Judgment and supporting 

brief (Docs. 15, 16), Plaintiff International Longshoremen’s 

Association, Local 1984’s Response in Opposition (Doc. 18), and 

Defendant’s Reply (Doc. 19). Upon careful review of the motion, 

briefs, supporting materials and the applicable case law, the 

Court concludes that no material facts are in controversy, and 

that Defendant is entitled to judgment as a matter of law. 

Accordingly, the Court grants Defendant’s Motion for Summary 

Judgment.

I. Undisputed Material Facts 

The Alabama State Port Authority (hereafter “ASPA” or 

“Defendant”) is a state agency which operates port facilities, 

including the Terminal Railway in Mobile, Alabama. (Doc. 1 at 

¶5). Plaintiff International Longshoremen’s Association, Local 

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1984 (hereinafter “Plaintiff” or “Union”) is a labor 

organization representing certain hourly employees at the ASPA

Terminal Railway in Mobile. (Id. at ¶ 4). ASPA is a “carrier” 

subject to the provisions of the Railway Labor Act. (Doc. 16 at 

2; Doc. 17 at 1); See Diamond v. Terminal Ry. Alabama State 

Docks, 421 F.2d 228, 230 (5th Cir. 1970). On December 21, 2010, 

the parties entered into a Collective Bargaining Agreement 

(“CBA”) (Doc. 1 at ¶ 13). The parties, on May 15, 2013, entered 

into an agreement to establish a Public Law Board (hereinafter 

“Board” or “PLB”) under Section 3 of the Railway Labor Act. (Id. 

at ¶ 6). The agreement included nine cases, titled Case 1 to 

Case 9. (Doc. 16 at 2). “The agreement also provided that the 

Board would consist of a representative of the Union, ASPA, and 

a neutral arbitrator and that an award on each case required two 

votes of the three members. The parties submitted this 

agreement to the National Mediation Board (hereinafter 

[“Mediation Board”]) along with a request for an arbitrator 

strike list.” (Doc. 1 at ¶6). The parties agreed on the neutral 

arbitrator to serve on the Board, and the Mediation Board 

approved their requests on January 16, 2014. (Id.). The Board 

met on February 27, 2014, and unanimously agreed to deny case 9. 

(Id. at ¶ 7). The parties could not agree on a resolution for 

the other cases. (Id.). The Board issued final arbitration 

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awards denying or dismissing all claims except Case 8.1 (Doc. 16 

at 3, 5, 7, 9, 11, 13). The Union initiated this action seeking 

judicial review of Awards 1-8, but later, voluntarily dismissed 

Counts 2 and 8 of the Petition. (Docs. 13, 14). Therefore, the 

only awards at issue in the present action are Awards 1, 3, 4, 

5, 6, and 7. Defendant’s motion seeking dismissal of this action 

has been fully briefed and is ripe for resolution.

II. Discussion

a. Legal Standard 

Summary judgment is proper “if the movant shows that there 

is no genuine dispute as to any material fact and that the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

247-48, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986); see also

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 91 

L. Ed. 2d 265 (1986); Garczynski v. Bradshaw, 573 F.3d 1158, 

1165 (11th Cir. 2009) (“[S]ummary judgment is appropriate even if 

‘some alleged factual dispute’ between the parties remains, so 

long as there is ‘no genuine issue of material fact.’” (citation 

omitted)(emphasis in original)). 

The party asking for summary judgment “always bears 

the initial responsibility of informing the district 

 1 The Union’s representative signed all the awards, but noted 

dissention on Awards 1, 3, and 4. (Doc. 1 at ¶ 7). 

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court of the basis for its motion, and identifying 

those portions of the ‘pleadings, depositions, answers 

to interrogatories, and admissions on file, together 

with the affidavits, if any,’ which it believes 

demonstrate the absence of a genuine issue of material 

fact.” The movant can meet this burden by presenting 

evidence showing there is no dispute of material fact, 

or by showing, or pointing out to, the district court 

that the nonmoving party has failed to present 

evidence in support of some element of its case on 

which it bears the ultimate burden of proof. 

Once the moving party has met its burden, Rule 56(e) 

“requires the nonmoving party to go beyond the 

pleadings and by its own affidavits, or by the 

‘depositions, answers to interrogatories, and 

admissions on file,’ designate ‘specific facts showing 

that there is a genuine issue for trial.’” To avoid 

summary judgment, the nonmoving party “must do more 

than show that there is some metaphysical doubt as to 

the material facts.” On the other hand, the evidence 

of the nonmovant must be believed and all justifiable

inferences must be drawn in its favor. 

ThyssenKrupp Steel USA, LLC v. United Forming, Inc., 926 F. 

Supp. 2d 1286, 1289-90 (S.D. Ala. Jan. 29, 2013)(citations 

omitted). 

b. Standard of Review for a Board Award Issued Under the 

Railway Labor Act.

As a carrier operating in interstate commerce, ASPA must 

comply with the provisions of the Railway Labor Act, 45 U.S.C. 

§§ 151-188 (“RLA”). Loveless v. Eastern Air Lines, Inc., 681 F. 

2d 1272, 1275 (llth Cir. 1982). Congress enacted the RLA to 

avoid labor-based interruptions to commerce or to the operation 

of the railway and airline industries. Stewart v. Spirit 

Airlines, 503 Fed. Appx. 814, 817 (llth Cir. 2013). The RLA 

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requires every carrier and its employees to establish a board to 

deal with grievances arising out of the carrier-employee 

relationship. In this case, the Public Board fulfills this 

role.

Under the RLA, a court may overturn a Board’s award only if 

one of three circumstances exists: (1) the Board has failed to 

comply with the requirements of the RLA; (2) the Board’s order 

does not conform, of confine itself, to matters within the scope 

of the Board’s jurisdiction; or (3) a member of the Board has 

engaged in fraud or corruption. Henry v. Delta Air Lines, 759 

F. 2d 870, 872 (llth Cir. 1985). This scope of review has been 

described as “among the narrowest known to the law,” id.

(quoting Diamond, 421 F.2d at 233), and a court may neither 

review the substance of such an award for ordinary error nor 

vacate an award because a judge might have reached a different 

result. Loveless, 681 F. 2d at 1276. (citations omitted). 

Instead, substantive grounds for vacating an award where the 

Board’s order does not “conform, or confine itself, to matters 

within the scope of the [Board’s] jurisdiction” exist only in 

the following three situations: (1) the award is “irrational”, 

meaning “wholly baseless and completely without reason,” 

Loveless, 681 F.2d at 1276 (citations omitted); (2) the award 

has no “rationally inferable” basis form the “letter or purpose 

of the collective bargaining agreement,” id. (citations 

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omitted); (3) the arbitrator failed to conform to a specific 

contractual limitation upon his authority, id. (citations

omitted); see also Brotherhood of Locomotive Eng’rs & Trainmen 

Gen. Comm. Of Adjustment CSX Transp. N. Lines, 455 F. 3d 1313, 

1315-16 (llth Cir. 2006)(citation omitted).

Under the RLA, the range of judicial review in enforcement 

cases is among “the narrowest known to the law.” Diamond, 421 

F.2d at 232. Judicial review of orders is limited to only three 

very specific grounds: (1) failure of the Board to comply with 

the Act, (2) fraud or corruption, or (3) failure of the order to 

conform, or confine itself, to matters within the Board’s 

jurisdiction. Railway Labor Act § 3, 15 U.S.C. § 153 First (p) 

(1964), as amended (Supp. IV, 1968). Only upon one or more of 

those grounds may a court set aside an order of the Adjustment 

Board. Diamond, 421 F.2d at 233. In the arbitration context, an 

award “without foundation in reason or fact” is equated with an 

award that exceeds the authority or jurisdiction of the 

arbitration body. Diamond, 421 F.2d at 233 (citing Brotherhood 

of Railroad Trainmen v. Central of Ga. Ry. Co., 415 F.2d 403, 

411-412 (5th Cir. 1969)). The test of the Board’s jurisdiction is 

not whether the reviewing court agrees with the Board’s 

interpretation of the bargaining contract, but whether the 

remedy fashioned by the Board is rationally explainable as a 

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logically means of furthering the aims of that contract. 

Diamond, 421 F.3d at 233 (citing Brotherhood, 415 F.2d at 412). 

c. Analysis

1. Award 1 

Award 1 involves the Union’s grievance concerning bargecleaning duties at ASPA’s McDuffie Terminal. (Doc. 16 at 6). 

According to the Union, under Article 1 §§ 1 of the parties’ 

CBA, “the Port Authority recognized Local 1984 as the exclusive 

collective bargaining representative of all hourly paid 

production and maintenance employees who are employed at all 

public Port facilities operated by the Port Authority, excluding 

salaried merit system and terminal railroad employees.” (Doc. 1 

at 5-6). The Union contends that ASPA’s sub-contracting of the 

barge cleaning duties at the McDuffie Terminal violated the 

exclusivity provisions of the parties’ CBA. (Id.). In support of 

its argument that the cleaning duties constituted bargaining 

unit work covered under the parties’ agreement, the Union notes 

that ASPA conceded the existence of a long-standing policy 

whereby bargaining unit employees performed said duties. (Id.) 

The Union further contends that the Board’s decision denying the 

Union’s claim has no foundation in reason or fact, and 

impermissibly expands the CBA beyond its agreed upon terms, as 

the Board acknowledged that there is an established practice of 

using bargaining unit employees members for cleaning in 

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conjunction with the unloading and loading of coal. (Id.). ASPA 

argues that the Union’s disagreement with the Board’s decision 

is not a sufficient basis for vacating the award. (Doc. 16 at 

6). According to ASPA, the Board provided a detailed lengthy 

analysis that was grounded in reason and fact. (Id. at 7). ASPA 

asserts that the Board properly found that the Union’s existing 

practice of cleaning out unloaded barges at one location that 

pose[d] little in way of safety hazards” was completely 

different from sweeping decks on loaded barges at a hazardous 

location. (Id.).

In this case, the Board expressly considered the CBA 

provisions relied upon by the parties, and determined that 

neither the exclusivity provision nor the management provision 

addressed the specific issue before the Board. (Doc. 15-3). The 

Board found that at one time, bargaining unit employees 

performed the cleaning duties on vessels that had been unloaded 

as well as the vessels that had been loaded; that the Coast 

Guard began enforcing a regulation that provided that loaded 

barges have no more than one gallon of coal dust on their decks;

that this resulted in the cleaning work on the loaded barges 

being performed in an area exposed to tides and currents and 

wave action; that this change in work environment created a 

safety hazard for ASPA employees, thus, ASPA began contracting 

with barge owners to perform the work; that the Union did not 

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voice any objection until the work was subcontracted out; and 

that the two bargaining unit employees who had once performed 

the cleaning work at issue suffered no loss in pay. (Id.). 

Upon review, the Court finds that the Board’s ruling was 

not “wholly baseless and completely without reason”. Indeed, it 

is well settled that an arbitrator can review the parties’ past 

practice, usage and custom in interpreting their CBA. 

Consolidated Rail Corp. v. Rx Labor Executives’ Assn., 491 U.S. 

299, 311, 109 S. Ct. 2477, 2485, 105 L. Ed. 2d 250 (1989). This

is exactly what the Board did in this case. The Board found that 

a practice that developed in response to one circumstance does 

not automatically extend to a different set of circumstances. 

(Doc. 15-3). Specifically, the Board concluded that the 

situation under which the cleaning of the loaded barges occurred 

was clearly far more hazardous than the circumstances under 

which the unloaded barges were cleaned. (Id.). The Board also 

determined that the outsourcing of the hazardous work did not 

negatively impact bargaining unit employees as they continued to 

receive pay. (Id.). Regardless of whether the Union agrees with 

the Board’s decision, it has failed to proffer facts that 

suggest that the decision was “wholly baseless and completely 

without reason.” See Loveless, 681 F.2d at 1276 (“[C]ourts will 

not vacate an award because a judge might have reached a 

different result.”). Thus, the award will not be vacated.

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2. Award 3

In Award 3, the Board determined that the CBA was not 

violated when the Carrier allowed an employee (who had retained 

the classification of Coal Machine Operator (CMO) but had been 

working in the Equipment Operator (EO) position as an 

accommodation) to perform overtime work, as the Carrier had 

attempted to assign overtime to other employees in the EO 

classification but no employees were available. (Doc. 15-5). The 

Union argues that in issuing this award, the Board failed to 

conform or confine itself to matters within the scope of its 

jurisdiction, as the Board relied on an extemporaneous agreement 

between the ASPA and one of its employees, not the clear, 

unambiguous terms of the CBA. (Doc. 1 at 8-9). ASPA counters 

that the Board’s decision did not exceed it’s jurisdiction, and 

even if the Board made a factual error or failed to credit some 

information, that would not be reason to consider the award in 

excess of their jurisdiction. (Doc. 16 at 9-10). They further 

argue that the Union’s contention that the award failed to rely 

on the CBA is clearly contradicted by the award itself. (Id.).

Notwithstanding the Union’s assertions to the contrary, the 

Board did not exceed its jurisdiction in resolving this claim. 

The Board expressly found that pursuant to Article 18, Section 8 

of the parties’ CBA, ASPA was required to offer EO overtime 

within the EO overtime classification; however, on the day in 

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question, ASPA attempted to follow the overtime distribution 

priority rules but no employee holding the EO classification was 

available. (Doc. 15-5 at 3). Thus, ASPA utilized an employee 

with a special work accommodation to perform the EO overtime as 

it was the work that he normally performs on his regular shift. 

(Id.). As noted by ASPA, the fact that the Union takes issue 

with the Board’s factual finding that no other EO employees were 

available is of no moment. It is not this Court’s role to 

second-guess. Further, a review of the reward at issue clearly 

shows that the Board interpreted a specific portion of the 

parties’ CBA in resolving this claim. Thus, it did not exceed 

its jurisdiction.

3. Award 4

In Award 4, the Board determined that the CBA was not 

violated when two employees were permitted to work a 8 hour 

overtime shift performing preventive maintenance on conveyor 

belts during the weekend of February 11-12, 2012, though the 

claimant had requested and been denied the same opportunity.

(Doc. 15-7). The Union argues that the Board’s award was wholly 

baseless and completely without reason and that the Board 

completely ignored the clear and unambiguous provisions of CBA, 

particularly, Article 20, Section 1 of the CBA, which provides 

that “[w]hen required in case of emergency, an 8 hour shift may 

be started at any time.” (Doc. 1 at 10-11). The Union contends 

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that the Board ignored this language as the claimant properly 

requested to be allowed to work an 8-hour overtime shift, 

instead of the required 10, and his request was denied while two 

other employees were permitted to leave work after 8 hours of 

the overtime work. (Id.). ASPA argues that under the RLA, the 

Board’s interpretation controls; thus, the Union has not 

presented a valid ground for vacating the award. (Doc. 16 at 10-

11). 

In denying Award 4, the Board noted that it was unrefuted 

that the Carrier had an approximately 40-year practice of 

scheduling longer shifts to perform maintenance under similar 

circumstances, and that Article 20 Section 1 of the parties CBA 

permitted an increase in shift hours from 8 to 10 not just for 

emergencies, but also in order to accommodate operational and 

maintenance requirements. (Doc. 15-7). The Board further found 

that the claimant disqualified himself from performing the 

overtime work, and that the two comparators who were permitted 

to leave after 8 hours were actually working on a different 

maintenance project and had more seniority than the claimant. 

The undersigned finds that the Board did not exceed its 

authority in interpreting the contract provision, and its 

rationale was not wholly without reason. Accordingly, the Union 

has not presented a valid ground for vacating the award.

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4. Award 5

Award 5 involved the Union’s assertion that during a safety 

meeting, a management employee spoke to a shop steward in a 

disrespectful manner after the shop steward, who was attending 

the meeting as a member of the work crew, questioned whether the 

supervisor’s statements regarding the notice required before 

absences complied with the parties’ CBA. (Doc. 1 at 11-12). 

Following the meeting, the shop steward wrote a letter to Human 

Resources complaining about the supervisor’s behavior. (Doc. 1-

13). Nearly two months later, the shop steward filed a written 

grievance form. (Doc. 1-14). The shop steward classified his 

grievance as a “step 2” grievance, and asserted that he had not 

received any response to his formal harassment complaint filed 

with Human Resources. (Id.). Subsequent thereto, the shop 

steward filed two additional written grievance forms, and he 

classified them as “step 3” and “step 4” grievance. (Docs. 1-15, 

1-16). 

The parties submitted the following statement of claim to 

the Board:

“Union member Brandon Harris alleged discrimination against 

union officials and harassment.”

The Board determined that it had jurisdiction over the 

dispute, and “[a]fter review of the submissions”, concluded that 

“no issues remain in this dispute that require resolution by the 

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Board.” (Doc. 15-9 at 2). Therefore, the Board dismissed the 

claim. (Id.)

The Union contends that the arbitrator did more than just 

interpret the parties’ agreement, “he flat out went rouge in 

suggesting that there was not a valid grievance.” (Doc. 18 at 

8). According to the Union, in the parties’ CBA, at Article 3, 

§ 2, the parties set a pretty low standard with respect to 

defining what constitutes a grievance. (Id.). As a result, the 

Board’s determination that there was no grievance is 

“inconceivable” under the CBA. (Id.). 

The clear gist of the Union’s argument is that in 

concluding that there were no issues to resolve, the Board 

implicitly found that there was no valid grievance under the 

CBA, and this finding is wrong. The Court finds that, assuming 

arguendo that the Union is correct in its assertion that the 

Board did not properly construe the shop steward’s letter as a 

grievance under Article 3 § 2, that does not provide a basis for 

setting aside the award. The law is firmly established that 

courts must defer entirely to the arbitrator’s interpretation of 

the underlying contract no matter how wrong the Court believes 

it to be. Wiregrass Metal Trades Council AFL-CIO v. Shaw 

Environmental & Infrastructure, Inc., 2016 U.S. App. LEXIS 16535 

(llth Cir. 2016). Indeed, the Supreme Court has explained that 

“[b]ecause the parties bargained for the arbitrator’s 

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construction of their agreement, an arbitral decision even 

arguably construing or applying the contract must stand, 

regardless of a court’s view of its (de)meits.” Oxford Health 

Plans LLC v. Sutter, 569 U.S. --- , 133 S. Ct. 2064, 2068, 186 

L. Ed. 2d 113 (2013)(quotation marks omitted). Thus, “the sole 

question for [the Court] is whether the arbitrator (even 

arguably) interpreted the parties’ contract, not whether he got 

its meaning right or wrong.” Id. at 2068. If the Court 

determines that “the arbitrator (even arguably) interpreted the 

parties’ contract”, the Court must end its inquiry and deny a 

motion for vacatur. S. Commc’ns Servs., Inc. v. Thomas, 720 F. 

3d 1352, 1359 (llth Cir. 2013). 

In this case, it is undisputed that the shop steward 

initially wrote a letter to Human Resources complaining about 

the alleged disrespectful treatment he received during a safety 

meeting. He did not contend that any tangible action had been 

taken against him nor did he request any specific remedy. 

Nearly two months later, he submitted a formal grievance form 

complaining that the Company had not responded to his letter. 

Against this backdrop of facts, the Board considered the Union’s 

challenge, and concluded that “no issues remain in this dispute 

that require resolution by the Board.” (Doc. 15-9). There is 

nothing before the Court that suggests that the Board simply 

ignored the parties’ CBA, and this Court cannot second guess the 

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Board’s implicit finding that the shop steward’s letter did not 

rise to the level of a grievance under the CBA. Thus, the 

award is due to be upheld.

5. Awards 6 and 7 

Award 6 involved a challenge by the Union alleging unjust 

discipline based on “counseling” issued to employees for 

purportedly failing to timely notify the company of absences. 

(Doc. 15-11). Award 7 involved a discipline in the form of 

counseling and a letter that was placed in the personnel file of 

employee Tracy Higgins, who at the request of the Port police

chief, entered a confined space in violation of the Company’s 

confined space entry program and OSHA training. (Doc. 1 at 15). 

In its award, the Board noted that the parties agreed that 

letters of counseling do not constitute discipline, and the 

Board urged the carrier and the union to make clear to all 

supervisors of hourly employees and all hourly employees 

represented by the Union that counseling is not to be considered 

discipline and will not be considered as part of progressive 

discipline at the Port. (Doc. 15-11 at 3). The Board then 

concluded that the claim was resolved in accordance with the 

finding. (Id.).

Plaintiff argues that Award 6 only partially resolved one 

dispute, but did not address the removal of the counseling 

letters from employees’ files, and that ASPA did not 

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unilaterally agree to do so. (Doc. 1 at 14). The Union contends 

that this fails to comply with the requirements of the RLA and 

that the Board failed to confine itself to matters within its 

jurisdiction; thus, the award should be remanded to the Board 

for further consideration. (Doc. 1 at 14-15). In Award 7, the 

Board dismissed Case 7 on the basis that Case 6 had addressed 

the underlying issue present in both cases by stating counseling 

is not considered discipline. (Doc. 15-13). Plaintiff asserts 

that the board failed to address the Union’s requested remedy in 

Case 7; therefore, the Board failed to conform or confine itself 

to matters within the scope of the Board’s jurisdiction in 

violation of the RLA. (Doc. 1 at 15-16). Defendant counters that 

both parties agreed that letters of counseling do not constitute 

discipline under well-settled labor law, and the Board found 

that the claims were therefore resolved by agreement. (Doc. 16

at 12). According to Defendant, the Board was not required to 

expressly address each argument of the Union, or, indeed, give

any reason for an award at all. (Doc. 16 at 12-13). 

Generally, arbitrators are not required to include 

explanations, much less detailed ones, and they often do not. 

Wiregrass, 2016 U.S. App. LEXIS 16535 at *13 (quoting United 

Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & 

Serv. Works Int’l Union AFL-CIO-CLC v. Wise Alloys, LLC., 807 F. 

3d 1258, 1275 (11th Cir. 2015))(“Unless the parties stipulate 

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otherwise. . .an arbitrator is under no obligation to provide 

explanations with his award.”); Cat Charter, LLC v. 

Schurtenberger, 646 F. 3d 836, 844 (llth Cir. 2011)(“Generally, 

an arbitrator need not explain her decision; thus, in a typical 

arbitration where no specific form of award is requested, 

arbitrators may provide a ‘standard award’ and simply announce a 

result.”)). As observed by the Court in Wiregrass:

“[W]hen it is “not apparent” from the 

arbitrator’s stated reasoning (or lack thereof) 

whether [he] permissibly interpreted a collective 

bargaining agreement or impermissibly modified it, and 

one can plausibly read the award either way, the court 

must resolve the ambiguity by finding that the award 

is an interpretation of the contract and enforcing it. 

The rule reflects a strong, albeit not irrebuttable, 

presumption that the arbitrator has interpreted the 

agreement instead of modifying it.” 

Wiregrass, 2016 U.S. App. LEXIS 16535 at *17. The Court in 

Wiregrass noted that if the arbitrator in that labor arbitration

case had issued a standard award, simply announcing a result 

without explanation, there would not have been any grounds for 

vacating the award, and that the fact that the arbitrator 

provided an incomplete explanation for the award, instead of 

none at all, should not be a basis for vacating an award because 

it would discourage “arbitrators from saying anything beyond who 

won and how much”. Wiregrass, 2016 U.S. App. LEXIS 16535 at *19. 

The Union’s challenge to Awards 6 and 7 is essentially that 

the Board provided an incomplete award, and left unresolved some 

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issues. Given the undisputed evidence that the Board (along with 

the parties) found that the letters of counseling do not 

constitute discipline, and that the Board concluded that all 

issues were resolved, one can rationally interpret the Board’s 

decision to include an implicit finding that ASPA did not 

violate the CBA. Thus, the Board award must be upheld. 

III. Conclusion 

Having reviewed the record and the parties’ arguments at 

length, the Court finds that none of the criteria to trigger 

judicial review under the Railway Labor Act § 3 First (p), 45 

U.S.C. § 153 have been met. Accordingly, the undersigned finds 

the Motion for Summary Judgment is due to be GRANTED, and this 

action dismissed with prejudice. 

ORDERED this 6th day of October, 2016.

 /s/ Sonja F. Bivins *

 UNITED STATES MAGISTRATE JUDGE

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