13‐2915‐cv
Matthews v. City of New York
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM, 2013
ARGUED: APRIL 24, 2014
DECIDED: FEBRUARY 26, 2015
No. 13‐2915‐cv
CRAIG MATTHEWS,
Plaintiff‐Appellant,
v.
CITY OF NEW YORK; RAYMOND KELLY, as Commissioner of the New
York City Police Department; JON BLOCH, a deputy inspector in the
New York City Police Department; and MARK SEDRAN, a lieutenant
in the New York City Police Department,
Defendants‐Appellees.
________
Appeal from the United States District Court
for the Southern District of New York.
No. 12‐cv‐1354 – Paul A. Engelmayer, Judge.
________
Before: WALKER and HALL, Circuit Judges, and MURTHA, District
Judge.*
________
* The Honorable J. Garvan Murtha, of the United States District Court
for the District of Vermont, sitting by designation.
Officer Craig Matthews brought suit alleging that the City of
New York retaliated against him for speaking to his commanding
officers about an arrest quota policy at his precinct of the New York
City Police Department (“NYPD”). The United States District Court
for the Southern District of New York (Paul A. Engelmayer, Judge)
granted the defendants’ motion for summary judgment, holding that
Matthews spoke as a public employee, not as a citizen, and that his
speech was thus not protected by the First Amendment. We
conclude that because Matthews’s comments on precinct policy did
not fall within his official duties and because he elected a channel
with a civilian analogue to pursue his complaint, he spoke as a
citizen. Accordingly, we VACATE the district court’s grant of
summary judgment and REMAND for further proceedings
consistent with this opinion.
________
CHRISTOPHER DUNN, (Erin Harrist, Arthur
Eisenberg, Alexis Karterton, on the brief), New
York Civil Liberties Union Foundation, New
York, N.Y., for Appellant.
MARTA ROSS, (Edward F.X. Hart, William S.J.
Fraenkel, on the brief) for Zachary W. Carter,
Corporation Counsel of the City of New York,
New York, N.Y., for Defendants‐Appellees.
________
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JOHN M. WALKER, JR., Circuit Judge:
Officer Craig Matthews brought suit alleging that the City of
New York retaliated against him for speaking to his commanding
officers about an arrest quota policy at his precinct of the New York
City Police Department (“NYPD”). The United States District Court
for the Southern District of New York (Paul A. Engelmayer, Judge)
granted the defendants’ motion for summary judgment, holding that
Matthews spoke as a public employee, not as a citizen, and that his
speech was thus not protected by the First Amendment. We
conclude that because Matthews’s comments on precinct policy did
not fall within his official duties and because he elected a channel
with a civilian analogue to pursue his complaint, he spoke as a
citizen. Accordingly, we VACATE the district court’s grant of
summary judgment and REMAND for further proceedings
consistent with this opinion.
BACKGROUND
I. Matthews’s Speech about the Quota System
Since 1999, Craig Matthews, an NYPD police officer, has been
assigned to the 42nd Precinct (“the Precinct”) in the Bronx. He
alleges that starting in 2008, unnamed supervisors in the Precinct
implemented a quota system mandating the number of arrests,
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summons, and stop‐and‐frisks that police officers must conduct.
Matthews also alleges that Lieutenant Mark Sedran “refined the
quota system” by creating a point system that awarded points to
police officers for issuing what Sedran considered “‘good’
summonses” and subtracted points for less desirable summonses.
Compl. ¶ 18, Joint App’x 25. Matthews alleges that officers were
under pressure to comply with the quota system.
In February 2009, Matthews, believing that the quota system
was damaging to the NYPD’s core mission, reported its existence to
then‐Captain Timothy Bugge, the Precinct’s commanding officer at
that time. In March and April of 2009, Matthews again reported the
quota system’s existence to Captain Bugge, and, in May 2009,
Matthews reported the same to an unnamed Precinct executive
officer.
In January 2011, Matthews met with then‐Captain Jon Bloch,
the Precinct’s new commanding officer, and two other officers in
Captain Bloch’s office. Matthews told them about the quota system
and stated that it was “causing unjustified stops, arrests, and
summonses because police officers felt forced to abandon their
discretion in order to meet their numbers,” and that it “was having
an adverse effect on the precinct’s relationship with the
community.” Compl. ¶ 28, Joint App’x 28.
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II. Matthews’s Complaint and the Defendants’ Motion to
Dismiss
On February 28, 2012, Matthews filed a complaint under 42
U.S.C. § 1983 alleging that the NYPD retaliated against him in
violation of the First Amendment to the U.S. Constitution and
Article I, § 8 of the New York State Constitution because he spoke to
the Precinct’s leadership about the arrest quota policy. Although not
relevant to this appeal, which is limited to the narrow question of
whether Matthews spoke as a citizen or as a public employee, the
alleged acts of retaliation consist of punitive assignments, denial of
overtime and leave, separation from his career‐long partner,
humiliating treatment by supervisors, and negative performance
evaluations.
On March 16, 2012, the defendants moved to dismiss, arguing
that Matthews’s speech was made pursuant to his official
employment duties and was thus unprotected. The district court
(Barbara S. Jones, Judge) granted the defendants’ motion to dismiss.
See Matthews v. City of New York, No. 12 Civ. 1354, 2012 WL 8084831
(S.D.N.Y. Apr. 12, 2012). On November 28, 2012, a panel of this court
vacated the dismissal and remanded, holding that “[t]he record in
this case is not yet sufficiently developed . . . to determine as a
matter of law whether Officer Matthews spoke pursuant to his
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official duties when he voiced the complaints.” Matthews v. City of
New York, 488 Fed. App’x 532, 533 (2d Cir. 2012). The panel stated
that discovery was necessary as to “the nature of the plaintiff’s job
responsibilities, the nature of the speech, and the relationship
between the two.” Id. (internal quotation marks omitted).
On remand, after the case was reassigned to District Judge
Paul A. Engelmayer, the following evidence relevant to this appeal
was developed in discovery.
III. Matthews’s Employment Duties
Matthews stated in an affidavit that the vast majority of his
time as a police officer is spent:
(1) going on radio runs, which are responses to 911
calls in the precinct, in addition to ‘311’ requests,
and requests that come through the station house
telephone switchboard, (2) patrolling the streets and
vertical patrolling of local housing, (3) filling out
complaint reports and additional forms relating to
criminal activity, lost property, and missing persons,
including interviewing witnesses, (4) responding to
traffic accidents, (5) transporting prisoners to and
from the precinct house, courts, and hospitals, and
(6) doing community visits with local businesses
and organizations.
Joint App’x 91‐92. Matthews’s duties are formally defined by the
NYPD Patrol Guide, which was created to serve as a “guide for ALL
members of the service,” although it does not “contain distinct
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instructions for every situation that may be encountered in the
field.” Foreword, Patrol Guide, Joint App’x 410. Section 207‐21 of
the Patrol Guide, titled “Allegations of Corruption and Other
Misconduct Against Members of the Service,” states that:
All members of the service must be incorruptible. An
honest member of the service will not tolerate members
of the service who engage in corruption or other
misconduct. All members of the service have an
absolute duty to report any corruption or other
misconduct, or allegation of corruption or other
misconduct, of which they become aware.
Joint App’x 36. The Patrol Guide defines corruption and other
misconduct as, “[c]riminal activity or other misconduct of any kind
including the use of excessive force or perjury that is committed by a
member of the service whether on or off duty.” Id. It also outlines a
procedure for officers to report misconduct to the Internal Affairs
Bureau and provides that the “[f]ailure to report corruption, other
misconduct, or allegations of such act is, in itself, an offense of
serious misconduct and will be charged as such.” Id. at 37.
Commissioner John Beirne, Deputy Commissioner for Labor
Relations for the NYPD, testified at deposition that a quota system
alone is not misconduct but that a quota system that results in an
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unjustified stop, an unjustified arrest, an unjustified summons, or an
adverse employment action is misconduct that must be reported.
Matthews testified that the Patrol Guide does not obligate him to
report the existence of a quota system and that he would only have a
duty to report misconduct that violated the penal law. It is
undisputed that Matthews did not regularly meet with or report to
Captains Bugge or Bloch. Commissioner Beirne, Captain Bloch, and
Captain Bugge testified that an officer has no duty to monitor the
conduct of his or her supervisors.
IV. Avenues for Civilian Complaints to the NYPD
Patrol Guide Section 202‐09 states that one duty of a
commanding officer in the NYPD is to “[m]aintain as much personal
contact as possible with business, civic [organizations] . . . and other
groups or media with community influence and interests to keep
abreast of community tensions and trends.” Joint App’x 209. In this
spirit, the Precinct held monthly Community Council meetings in
which the public was invited to raise concerns about policing
practices. Captain Bloch testified that he routinely attended these
meetings, missing fewer than four or five of the previous thirty.
In addition to the Community Council meetings, Captain
Bugge testified that, one to three times per month, he met with
members of the public, such as local politicians, church leaders, or
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members of civic associations, to discuss policing issues in the
Precinct. The minutes of one Community Council meeting reflect
that Captain Bugge announced that “he welcomes the community to
call him and discuss problems.” Joint App’x 246. Captain Bloch
testified that in his experience, however, meetings with community
members outside of the Community Council meetings happened
“rarely.” Joint App’x 131.
V. The Defendants’ Motion for Summary Judgment
On May 20, 2013, the defendants moved for summary
judgment. On July 29, 2013, the district court granted the
defendants’ motion. The district court held that Matthews’s speech
was made as an employee of the NYPD, not as a citizen, and thus
was not protected by the First Amendment.
Matthews now appeals.
DISCUSSION
I. Standard of Review
We review a district court’s grant of summary judgment de
novo. Natural Res. Def. Council, Inc. v. U.S. Food and Drug Admin., 710
F.3d 71, 79 (2d Cir. 2013). Summary judgment is only appropriate if
“the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of
9
law.” Fed. R. Civ. P. 56(a). “[V]iewing the evidence produced in the
light most favorable to the nonmovant, if a rational trier could not
find for the nonmovant, then there is no genuine issue of material
fact and entry of summary judgment is appropriate.” Bay v. Times
Mirror Magazines, Inc., 936 F.2d 112, 116 (2d Cir. 1991) (quoting
Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)).
II. Legal Framework
A plaintiff asserting a First Amendment retaliation claim must
establish that: “(1) his speech or conduct was protected by the First
Amendment; (2) the defendant took an adverse action against him;
and (3) there was a causal connection between this adverse action
and the protected speech.” Cox v. Warwick Valley Cent. School Dist.,
654 F.3d 267, 272 (2d Cir. 2011). The district court granted summary
judgment to the defendants on the basis that Matthews’s speech was
not protected. We address only that issue.
A court conducts a two‐step inquiry to determine whether a
public employee’s speech is protected: “The first requires
determining whether the employee spoke as a citizen on a matter of
10
public concern.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006) (citing
Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, Will Cnty., 391
U.S. 563, 568 (1968)). This step one inquiry in turn encompasses two
separate subquestions: “(1) whether the subject of the employeeʹs
speech was a matter of public concern and (2) whether the employee
spoke ‘as a citizen’ rather than solely as an employee.” Jackler v.
Byrne, 658 F.3d 225, 235 (2d Cir. 2011) (citing Garcetti, 547 U.S. at 420‐
22). If the answer to either question is no, that is the end of the
matter. If, however, both questions are answered in the affirmative,
the court then proceeds to the second step of the inquiry, commonly
referred to as the Pickering analysis: whether the relevant
government entity “had an adequate justification for treating the
employee differently from any other member of the public based on
the government’s needs as an employer.” Lane v. Franks, 134 S.Ct.
2369, 2380 (quoting Garcetti, 547 U.S. at 418); see also Pickering, 391
U.S. at 568.
The district court determined that Matthews spoke on a
matter of public concern and the defendants‐appellees do not
11
challenge that determination here. This appeal concerns only
whether Matthews spoke as a citizen or as a public employee. The
district court held that Matthews spoke as a public employee. We
disagree with that conclusion, however, and hold that Matthews
spoke as a citizen. Accordingly, we remand to the district court to
determine whether an adequate justification existed for treating
Matthews differently from any other member of the public, and if
necessary, to analyze in the first instance whether a reasonable jury
could find that Matthews suffered retaliation as the result of
exercising his First Amendment rights.
III. The Citizen/Employee Distinction
The Supreme Court has recognized a tension in public
employment free speech cases between an employee’s First
Amendment rights and the “common sense realization that
government offices could not function if every employment decision
became a constitutional matter.” Connick v. Myers, 461 U.S. 138, 143
(1983). “The problem in any case is to arrive at a balance between the
interests of the [employee], as a citizen, in commenting upon matters
12
of public concern and the interest of the State, as an employer, in
promoting the efficiency of the public services it performs through
its employees.” Pickering, 391 U.S. at 568.
Guided by the Supreme Court’s decision in Garcetti, we ask
two questions to determine whether a public employee speaks as a
citizen: (A) did the speech fall outside of the employee’s ”official
responsibilities,“ and (B) does a civilian analogue exist? See
Weintraub v. Bd. of Educ. of City Sch. Distr. of City of. N.Y., 593 F.3d
196, 203‐04 (2d Cir. 2010).
A. Official Duties
“[W]hen public employees make statements pursuant to their
official duties, the employees are not speaking as citizens for First
Amendment purposes.” Garcetti, 547 U.S. at 421. Accordingly, we
have held that speech is not protected if it is “part‐and‐parcel of [the
employee’s] concerns about his ability to properly execute his
duties.” Weintraub, 593 F.3d at 203 (internal quotation marks
omitted).
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In Garcetti, the Supreme Court adopted a functional approach
toward evaluating an employee’s job duties. There, a deputy district
attorney alleged that he had been retaliated against for writing a
memorandum recommending that a case be dismissed. The
Supreme Court held that the prosecutor’s memorandum to his
superior was unprotected because it was “part of what [the speaker]
. . . was employed to do.” Garcetti, 547 U.S. at 421. The “controlling
factor” in its decision, the Court noted, was that the employee’s
“expressions were made pursuant to his duties as a calendar
deputy.” Id. The Court counseled that the appropriate inquiry is a
“practical one” directed to the regular duties of the employee. Id. at
424. While relevant to that inquiry, the Court cautioned, “[f]ormal
job descriptions often bear little resemblance to the duties an
employee actually is expected to perform” and “the listing of a given
task in an employee’s written job description is neither necessary
nor sufficient to demonstrate that conducting the task is within the
scope of the employee’s professional duties for First Amendment
purposes.” Id. at 424‐25.
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We have applied Garcetti’s functional approach in previous
cases. In Weintraub, we held that a school teacher’s formal grievance
regarding the administration’s refusal to discipline a student was
unprotected speech because a teacher’s need to discipline his own
students is essential to his ability to effectively run a classroom as
part of his day‐to‐day responsibilities. 593 F.3d at 203. We also
found that the teacher’s choice to pursue his complaint by following
the employee grievance procedure supported the conclusion that the
speech was unprotected because that procedure had no civilian
analogue. Id.
Similarly, in Ross v. Breslin, we held that a payroll clerk’s
speech to her superiors about pay discrepancies was unprotected
because it was part of her job responsibilities, which included
“making sure pay rates were correct.” 693 F.3d 300, 306 (2d Cir.
2012). We noted that the determination of “whether a public
employee is speaking pursuant to her official duties is not
susceptible to a brightline rule,” and that “[c]ourts must examine the
nature of the plaintiff’s job responsibilities, the nature of the speech,
15
and the relationship between the two.” Id. Because the employee
was expected to uncover wrongdoing as part of her daily job as a
payroll clerk, we concluded that her speech was not protected.
In this case, Matthews reported the existence of the quota
system on three occasions to Captain Bugge and on one occasion to
an unnamed executive officer in the Precinct. Over a year later, after
Captain Bloch had replaced Captain Bugge as the Precinct
commanding officer, Matthews reported the quota system to him
and stated that it was “causing unjustified stops, arrests, and
summonses because police officers felt forced to abandon their
discretion in order to meet their numbers” and it “was having an
adverse effect on the precinct’s relationship with the community.”
Joint App’x 28.
Matthews’s speech to the Precinct’s leadership in this case was
not what he was “employed to do,” unlike the prosecutor’s speech
in Garcetti, nor was it “part‐and‐parcel” of his regular job, unlike the
case of the teacher in Weintraub and the payroll clerk in Ross.
Matthews’s speech addressed a precinct‐wide policy. Such policy‐
16
oriented speech was neither part of his job description nor part of
the practical reality of his everyday work. Section 202–21 of the
NYPD Patrol Guide, which outlines the “Duties and
Responsibilities” of a Police Officer, reinforces this conclusion. It
lists 20 specific duties, but none includes a duty to provide feedback
on precinct policy or any other policy‐related duty. See Joint App’x
113. Matthews similarly stated that his job as a police officer
consisted of radio runs, patrols, complaint reports, and other tasks
involving enforcement of the law; it did not include reporting
misconduct of supervisors nor did it encompass commenting on
precinct‐wide policy. Matthews had no role in setting policy; he was
neither expected to speak on policy nor consulted on formulating
policy. Commissioner Beirne, Captain Bloch, and Captain Bugge all
testified that a police officer has no duty to monitor the conduct of
his supervisors. Captain Bloch and Captain Bugge also testified that
Matthews neither met regularly with the Captains nor submitted
regular reports to them. Apart from the occasions on which
Matthews spoke to them about the quota system, he did not
17
communicate with the Precinct’s commanding officers beyond
occasional hallway small talk. In sum, Matthews’s actual, functional
job responsibilities did not include reporting his opinions on
precinct‐wide quota systems to the Precinct commanders.
We hold that when a public employee whose duties do not
involve formulating, implementing, or providing feedback on a
policy that implicates a matter of public concern engages in speech
concerning that policy, and does so in a manner in which ordinary
citizens would be expected to engage, he or she speaks as a citizen,
not as a public employee.
The City points to Section 207‐21 of the NYPD Patrol Guide,
which, as noted earlier, states in pertinent part “[a]ll members of the
service have an absolute duty to report any corruption or other
misconduct, or allegation of corruption or other misconduct, of
which they become aware.” Joint App’x 36. It defines
“corruption/other misconduct” as “[c]riminal activity or other
misconduct of any kind including the use of excessive force or
perjury that is committed by a member of the service whether on or
18
off duty.” Id. The district court relied on this provision in holding
that Matthews’s reports were part of his official duties. We believe
this reliance was misplaced.
Matthews testified that he understood Section 207‐21 to
require only reports of misconduct rising to the level of a violation
of penal law. Commissioner Beirne testified that the section requires
reports of almost every violation of the Patrol Guide.. Under either
interpretation, however, the provision does not render Matthews’s
speech unprotected.
Matthews, in speaking out about the quota system, was not
reporting suspected violations of law that might have required him
to exercise his authority to arrest a fellow police officer or turn in an
officer for breach of a protocol. Matthews admitted that he would
have to report a police officer who violated the law, but this is not
such a case. Here, Matthews was voicing concerns about broad
policy issues that, at most, had the potential of incentivizing a
violation of law; he was not identifying individual violations.
Matthews told Captain Bloch that, as a result of the quota policy,
19
“police officers felt forced to abandon their discretion,” which was
causing “unjustified stops.” Compl. ¶ 28, Joint App’x 28. Matthews
was not flagging specific violations of law, but rather expressing an
opinion on a policy which he believed was limiting officer discretion
to not intervene in situations that, in the officer’s own judgment,
might not warrant intervention. According to Matthews, the policy
resulted in stops that were “unjustified” because no officer properly
exercising discretion would have made them. In addition, we note
that Matthews, by reporting the quota system to the Precinct
commanders instead of to the NYPD Internal Affairs Bureau, did not
follow the internal procedures set out in Section 207‐21.
Even if Matthews’s speech were deemed to fall within Section
207‐21, this provision would not be determinative of whether that
speech was protected by the First Amendment. If the Patrol Guide’s
general duty to report misconduct were permitted to control
whether the speech of any employee—without regard to whether
the investigation and reporting of misconduct is an integral part of
the employee’s day‐to‐day job (i.e. what he or she is “employed to
20
do,” Garcetti, 547 U.S. at 421)—enjoyed First Amendment protection,
public employers could be encouraged to simply prescribe similarly
general duties, thereby limiting such protection for wide swaths of
employee speech. When Justice Souter’s dissent in Garcetti flagged
this risk, id. at 431 n.2, the Court majority responded by explicitly
“reject[ing] . . . the suggestion that employers can restrict employees’
rights by creating excessively broad job descriptions,” id. at 424. To
be sure, the duty to report misconduct has increased relevance in the
context of law enforcement, but we believe that it is more properly
considered as part of the Pickering balancing analysis in determining
whether the government employer had an adequate justification for
its actions. See supra DISCUSSION, Section II, Legal Framework; see
also Lane, 134 S.Ct. at 2381 (describing the Pickering framework as
“balancing the interests of the employee, as a citizen, in commenting
upon matters of public concern and the interest of the State, as an
employer, in promoting the efficiency of the public services it
performs through its employees” (citing Pickering, 391 U.S. at 598
(internal quotation marks and brackets omitted))).
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B. Civilian Analogue
The existence of a comparable civilian analogue for
Matthews’s speech also supports our conclusion that he spoke as a
citizen. Speech has a “relevant civilian analogue” if it is made
through “channels available to citizens generally.” Jackler, 658 F.3d
at 238. “[A]n indicium that speech by a public employee has a
civilian analogue is that the employee’s speech was to an
‘independent state agency’ responsible for entertaining complaints
by ‘any citizen in a democratic society regardless of his status as a
public employee.’” Id. at 241 (quoting Weintraub, 593 F.3d at 204).
In Jackler, we held that a police officer’s refusal to retract a
truthful report to the police had a civilian analogue because a non‐
employee citizen may also refuse to retract a truthful police report.
658 F.3d at 241. In Weintraub, on the other hand, we found the
teacher’s speech unprotected in part because “lodging of a union
grievance is not a form or channel of discourse available to non‐
employee citizens, as would be a letter to the editor or a complaint
to an elected representative or inspector general.” 593 F.3d at 204.
22
Unlike the teacher in Weintraub, Matthews did not follow internal
grievance procedures, but rather went directly to the Precinct
commanders, with whom he did not have regular interactions and
who had an open door to community comments and complaints.
Matthews chose a path that was available to ordinary citizens
who are regularly provided the opportunity to raise issues with the
Precinct commanders. Captain Bloch stated that he attended nearly
every monthly Community Council meeting. And Captain Bugge
testified that one to three times per month he met with members of
the community to discuss issues in the Precinct. Matthews reported
his concerns about the arrest quota system to the same officers who
regularly heard civilian complaints about Precinct policing issues.
The district court found an absence of a civilian analogue
because Matthews had better access to his commanding officers than
would ordinary citizens. The district court noted that Matthews
could speak to the officers “more readily, more frequently, and more
privately than could an average citizen.” Matthews v. City of New
York, 957 F. Supp. 2d. 442, 465 (S.D.N.Y. 2013). We do not consider
23
the relative degree of access to be material; rather what matters is
whether the same or a similar channel exists for the ordinary citizen.
If courts were to confine their focus to the degree of access, then
internal public employee speech on matters of public concern not
made as part of regular job duties would be unlikely to receive First
Amendment protection because, presumably, employees always
have better access to senior supervisors within their place of
employment.
Here, Matthews pursued the same avenue to complain about
a precinct‐wide policy as would a concerned civilian. The channel
Matthews chose to address his concerns about the quota system thus
reinforces our conclusion that Matthews spoke as a citizen, not as a
public employee.
CONCLUSION
For the reasons stated above, we VACATE the district court’s
grant of defendants’ motions for summary judgment and REMAND
for further proceedings consistent with this opinion.
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