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Finbar Mcgarry v. andrew Pallito

August 3, 2012

FINBAR MCGARRY PLAINTIFF-APPELLANT,
v.
ANDREW PALLITO, COMMISSIONER, VERMONT DEPARTMENT OF CORRECTIONS (SUED IN HIS INDIVIDUAL CAPACITY), GREG HALE, SUPERINTENDENT, CHITTENDEN REGIONAL CORRECTIONAL FACILITY (SUED IN HIS INDIVIDUAL CAPACITY), RICHARD BYRNES, CLUS, CHITTENDEN REGIONAL CORRECTIONAL FACILITY (SUED IN HIS INDIVIDUAL CAPACITY), RICHARD GALLOW, CHITTENDEN REGIONAL CORRECTIONAL FACILITY (SUED IN HIS INDIVIDUAL CAPACITY), JOE WOLSKE, CHITTENDEN REGIONAL CORRECTIONAL FACILITY (SUED IN HIS INDIVIDUAL CAPACITY), JOHN CANNON, CHITTENDEN REGIONAL CORRECTIONAL FACILITY (SUED IN HIS INDIVIDUAL CAPACITY), FORCIER, CO, CHITTENDEN REGIONAL CORRECTIONAL FACILITY (SUED IN HIS INDIVIDUAL CAPACITY), SHERYLYN MATTHANS, CHITTENDEN REGIONAL CORRECTIONAL FACILITY (SUED IN HER INDIVIDUAL CAPACITY), JEFF COBB, CHITTENDEN REGIONAL CORRECTIONAL FACILITY (SUED IN HIS INDIVIDUAL CAPACITY), PAUL CROSS, CHITTENDEN REGIONAL CORRECTIONAL FACILITY (SUED IN HIS INDIVIDUAL CAPACITY), SAMUEL SANTOS, CHITTENDEN REGIONAL CORRECTIONAL FACILITY (SUED IN HIS INDIVIDUAL CAPACITY), MICHAEL LIFF, CHITTENDEN REGIONAL CORRECTIONAL FACILITY (SUED IN HIS INDIVIDUAL CAPACITY), VARIOUS TURNKEYS, CHITTENDEN REGIONAL CORRECTIONAL FACILITY (SUED IN THEIR INDIVIDUAL CAPACITIES), EVELYN CUSHINGS, VERMONT DEPARTMENT OF LABOR (SUED IN HER INDIVIDUAL CAPACITY), VARIOUS LAWYERS, VERMONT DEPARTMENT OF LABOR (SUED IN THEIR INDIVIDUAL CAPACITIES), WILLIAM SORRELL, OFFICE OF VERMONT ATTORNEY GENERAL (SUED IN HIS INDIVIDUAL CAPACITY), STATE OF VERMONT,*FN1 DEFENDANTS-APPELLEES.



The opinion of the court was delivered by: Barrington D. Parker, Circuit Judge

10-669-pr

McGarry v. Pallito, et al.

Argued: March 7, 2012

Before: KATZMANN, B.D. PARKER, and WESLEY, Circuit Judges.

Plaintiff-Appellant Finbar McGarry brought a suit pursuant to 42 U.S.C. § 1983 alleging 2 that Defendants-Appellees violated his Thirteenth Amendment right to be free from involuntary 3 servitude. The United States District Court for the District of Vermont (Murtha, J.) granted 4 defendants' motion to dismiss, and McGarry appealed. We hold that McGarry has stated a claim 5 for relief under the Thirteenth Amendment. Accordingly, the judgment below is REVERSED 6 and REMANDED.

Plaintiff-Appellant Finbar McGarry appeals from a judgment of the United States District 21 Court for the District of Vermont (Murtha, J.) dismissing his pro se complaint, which alleged 22 that Defendants-Appellees ("defendants") violated his Thirteenth Amendment right to be free 23 from involuntary servitude.*fn2 McGarry alleges that while he was a pretrial detainee at the 24 Chittenden Regional Correction Facility ("CRCF") in Vermont, prison officials compelled him 25 to work in the prison laundry under threat of physical restraint and legal process. The district 26 court dismissed the complaint, reasoning that McGarry failed to state a claim under the 27 Thirteenth Amendment because he did not allege that his work in the laundry was "like the 1 slavery that gave rise to the enactment of [the Thirteenth] Amendment." McGarry v. Pallito, No. 2 1:09-CV-128, 2010 WL 679056, at * 8 (D. Vt. Feb. 27, 2010). On appeal, McGarry contests the 3 dismissal. We agree with him and hold that his complaint plausibly states a claim under the 4 Thirteenth Amendment. We also hold that, at this preliminary stage in the proceedings, 5 defendants have not established an entitlement to qualified immunity. Accordingly, we reverse 6 the judgment of the district court and remand for further proceedings.

BACKGROUND

The following facts are drawn from McGarry's pro se pleadings, which we construe 11 liberally. See Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 145-46 (2d Cir. 2002). In 12 December 2008, Vermont police arrested McGarry on charges stemming from a domestic 13 dispute. The State denied his bail application and remanded him to the CRCF, where he 14 remained until his release in June 2009. All charges against him were subsequently dismissed. 15 CRCF houses approximately 200 persons, including both federal and state pretrial detainees and 16 sentenced inmates. The facility is divided into different living units, referred to as Houses. 17 McGarry alleges that all inmates in House 1, including pretrial detainees, are required to work in 18 the prison facility. Defendants essentially concede this point but seek to justify the work 19 requirement for convicted inmates as well as pretrial detainees on the ground that it serves a 20 legitimate rehabilitative interest in "educating offenders about real world responsibilities." 21 Appellees' Br. at 3.

McGarry alleges that in mid-February 2009 defendants directed him to move to House 1 23 and required him to work in the prison laundry over his repeated objections. He alleges that he 1 had no choice because defendants told him that his refusal to work would result in his being 2 placed in administrative segregation or "put in the hole," which, he alleges, involves lock-up for 3 23 hours-a-day and the use of shackles. McGarry further alleges that defendants told him that he 4 would receive an Inmate Disciplinary Report ("DR") if he refused to work, and that even minor 5 DRs affect when sentenced inmates are eligible for release.

6 McGarry alleges that he was compelled to work long hours in the prison laundry in hot, 7 unsanitary conditions. He alleges that the bathroom adjacent to the laundry room was bolted 8 shut and that, although he was required to handle other inmates' soiled clothing, he was not 9 provided with gloves or access to a sink or hand-cleaning products. He further alleges that he 10 was required to work under these conditions on shifts lasting up to fourteen hours per day, three 11 days a week. Finally, he alleges that his work in the laundry caused a painful staph infection in 12 his neck that manifested itself as a series of reoccurring lesions.

13 After unsuccessfully grieving these conditions, McGarry filed a pro se complaint against 14 various prison officials.*fn3 Defendants moved under Rule 12(b)(6) to dismiss McGarry's 15 complaint. The court referred the motion to Magistrate Judge John M. Conroy, who issued a 16 Report and Recommendation ("R&R") recommending, inter alia, that McGarry's Thirteenth 17 Amendment claim be dismissed. McGarry, 2010 WL 679056, at *1. The Magistrate sua sponte 18 concluded that McGarry's Thirteenth Amendment allegations were barred as a matter of law because being forced to work in the laundry was "nothing like the slavery that gave rise to the 2 enactment of [the] Amendment." Id. at *8. Finding that McGarry's "laundry claim" failed "to 3 allege labor that was akin to African slavery," id. at *6 (internal quotation marks omitted), the 4 Magistrate recommended dismissing his claim and denying leave to amend, holding that any 5 other outcome would "trivialize the pain and anguish that the Thirteenth Amendment sought to 6 remedy." Id. (quoting Ford v. Nassau Cnty. Exec., 41 F. Supp. 2d 392, 401 (E.D.N.Y. 1999)).

7 The district court adopted the R&R in full and dismissed the complaint. Id. at *1. This appeal 8 followed.

9 On appeal, McGarry contends that his allegations of work compelled by threats of 10 physical force or legal sanction state a claim under the Thirteenth Amendment. Defendants 11 contend that compelled work is insufficient to state a claim and that McGarry must also allege 12 that the work was similar to African slavery, a condition which -- defendants contend -- is not 13 present here, and that, in any event, they are entitled to qualified immunity. We review the 14 dismissal of McGarry's Thirteenth Amendment claim de novo. See Papelino v. Albany Coll. of 15 Pharmacy of Union Univ., 633 F.3d 81, 88 (2d Cir. 2011). In conducting this review, we 16 construe the complaint liberally, "accepting all factual allegations in the complaint as true, and 17 drawing all reasonable inferences in the plaintiff's favor." Chase Grp. Alliance LLC v. City of 18 N.Y. Dep't of ...


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