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McGee v. Pallito

United States District Court, Second Circuit

August 13, 2013

David McGee, Plaintiff,
v.
Andrew Pallito, Robert Hofmann, Kurt Kuehl, Robert McDougall, Marie Salem, Robert Kupec, Kevin Oddy, Phil Fitzpatrick, Brian Reed, Cindy Modiano, Mary Ellen Cross, Richard Byrne, David Talcott, Greg Hale, Tim Harrington, Philip Brochu, Phillip Quijano, Joseph Sylvestri, Marshall Rich, David Martinson, Michael Bellizzi, Scott Morley, Anita Carbonell, Ellen McWard, Dominic Domato, Mark Potanas, Christina Granger, James Kamel, Joshua Rutherford, Michael Arace, James Edwards, Monique Sullivan, Michael Simonds, Correctional Officer Camp, Delores Burroughs-Biron, Nurse Manager Doe, Nurse(s) Doe, And Prison Health Services, Inc., Defendants.

REPORT AND RECOMMENDATION (Docs. 154, 155)

JOHN M. CONROY, Magistrate Judge.

Plaintiff David McGee, a Vermont inmate proceeding pro se under 42 U.S.C. § 1983 and various provisions of state law, claims that Defendants violated his constitutional rights in numerous respects during the course of his incarceration. Specifically, his 116-page Complaint details thirteen distinct causes of action, ranging from repeated retaliatory transfers to a denial of basic sanitation services. Defendants are thirty-five past and present employees of the State of Vermont ("State Defendants"), Prison Health Services, Inc. ("Prison Health"), and two unidentified nurses ("Nurse Does"). Presently pending before the Court is a Motion to Dismiss filed by State Defendants pursuant to Fed.R.Civ.P. 37 (Doc. 155), and a Motion for Summary Judgment filed by Prison Health pursuant to Fed.R.Civ.P. 56 (Doc. 154).

For the reasons that follow, I recommend that both Motions be DENIED.

Factual and Procedural Background

At the time of the events described in the Complaint, Plaintiff David McGee was an inmate committed to the custody and control of the Vermont Department of Corrections ("DOC").[1] Although McGee brings thirteen causes of action, detailed in a voluminous, 846-paragraph Complaint (Doc. 7), the full facts underlying these causes of action need not be recounted for the purposes of deciding the two pending Motions. For one, certain of the causes of action-Counts 1, 2, 4, 9, and 10-have previously been dismissed. Also, the Motion to Dismiss (Doc. 155) is premised upon McGee's failure to adhere to this Court's discovery order, while the Motion for Summary Judgment (Doc. 154) relates to only one of the thirteen causes of action at issue, Count 11. Nonetheless, for the sake of coherence and completeness, what follows is a summary of McGee's thirteen causes of action, followed by a recitation of the procedural history of the case.

I. Claims Related to Conditions of Confinement (Counts 1, 3, 4, 7, and 9)

Five of McGee's claims relate to the conditions of his confinement.

In Count 1, McGee claims that while incarcerated in Vermont's Northwest State Correctional Facility he was barred from using the bathroom facilities at will. (Doc. 7 at ¶¶ 53-128, 768-70, 796-98.) During the facility's "third shift"-between the hours of 10 p.m. and 6 a.m.-two shift officers enforced a "two[-]hour rule": inmates were only permitted to use the restroom once every two hours. "No matter how much inmates begged and pleaded to use the restroom, [the officers] would not let them out of their cell if they had used the restroom within the previous two hours." ( Id. at ¶¶ 62-63.) McGee and other inmates "often had no choice but to urinate into containers in their cells, such as soda bottles, jugs, or cups." ( Id. at ¶ 67.) The two officers would not permit them to empty these containers, resulting in "open containers of urine and feces sitting around in cells." ( Id. at ¶ 71.) The Complaint recounts one episode in which adherence to the "two[-]hour rule", as well as one of the officer's refusal to answer McGee's repeated pleas for help, resulted in him beginning to "urinate uncontrollably" into a coffee mug in his cell. ( Id. at ¶¶ 74-103.) McGee was subsequently diagnosed with an enlarged prostate, a condition that causes a frequent and urgent need to urinate. ( Id. at ¶ 105.) Relatedly, McGee also claims that inmates were denied water in the evening (so as to limit their corresponding need to urinate) and, even when permitted to use the restroom, were not allowed to wash their hands with soap. ( Id. at ¶¶ 73, 96.)

In Count 3, McGee alleges that, while incarcerated in Vermont correctional facilities, he was denied clean, seasonally-appropriate clothing. (Doc. 7 at ¶¶ 188-252, 773-74, 802-05.) By McGee's description, the layout of these facilities required him to walk outside several times each day to reach the cafeteria, medical, education, and recreation buildings. ( Id. at ¶ 209.) During the winter months, given McGee's lack of warm clothing, these outdoor trips would cause McGee's "body, especially his hands, toes, and ears [to] bec[o]me numb and severely painful, and he would shiver uncontrollably for lengthy periods of time even after returning inside." ( Id. at ¶ 210.) Around this time, McGee began to suffer from "flu-like symptoms, " which he attributes to this lack of appropriate clothing. ( Id. at ¶ 217.) McGee further alleges that, after his transfer to the Chittenden Regional Correctional Facility ("CRCF"), DOC officials would not allow him to keep the string that held up his sweatpants, giving him an ultimatum: "Either they could cut the string out of his sweatpants (effectively destroying them) or [McGee] would have to stay in the segregation cell naked." ( Id. at ¶ 246.)

In Count 4, McGee claims that during his confinement at the Northern State Correctional Facility ("NSCF") he was denied water and the use of a flushable toilet during a twenty-four hour "lockdown drill." (Doc. 7 at ¶¶ 253-304, 775-77, 806-09.) Over the course of the day, inmates were locked in their cells and the water to all cells was turned off. ( Id. at ¶ 255.) The inmates were served three meals in their cells and given one eight-ounce cup of milk with breakfast, and eight-ounce cups of Kool-Aid with both lunch and dinner. ( Id. at ¶ 256.) After repeated requests, McGee also received a small "Dixie cup" of water in the afternoon. ( Id. at ¶ 258.) At the time of the lockdown drill, McGee suffered from an intestinal condition that required him to "stay well-hydrated at all times." ( Id. at ¶ 261.) The dehydration caused by the drill, combined with this intestinal condition, resulted in McGee becoming constipated and later suffering from severe pain and bleeding during bowel movements. ( Id. at ¶ 262.) McGee also claims that his inability to flush his toilet caused "noxious odors [that made] him nauseatingly sick, and the exposed raw human excrement constituted a biohazard." ( Id. at ¶ 267.) By the end of the day, McGee and his cell mate "were regularly retching and dry heaving, " and the odors had "made it impossible to consume food without vomiting." ( Id. at ¶¶ 275-76.)

In Count 7, McGee complains about the conditions of confinement at the Southern State Correctional Facility ("SSCF"), claiming that over a discontinuous period of nine days from 2007 to 2009 he was held in a "fishtank" holding cell of insufficient size for the number of inmates housed there. (Doc. 7 at ¶¶ 373-402, 782-83, 816-19.) McGee alleges that he was "packed in like a sardine with 5 to 6 other inmates, " forced to sleep on dirty mattresses directly on the floor, and was allowed only one set of clothes and access to hygiene products only once per day. ( Id. at ¶¶ 374, 375, 379.) The proximity of McGee's mattress to the only toilet in the cell resulted in his getting "splashed" while other inmates used the facilities. ( Id. at ¶ 381.) Because of the cramped quarters, McGee's "muscles and back became painfully sore, and his arms constantly became numb from decreased circulation." ( Id. at ¶ 389.) The conditions also exacerbated his preexisting environmental dust allergies, "causing itching, sneezing, wheezing, excess mucus in [McGee]'s eyes and nose, and severe headaches." ( Id. at ¶ 390.) McGee raises other allegations related to overcrowding, including his having to live in an administrative-segregation unit because of a lack of space in the general population ( id. at ¶ 392), as well as having to be the "third inmate in a cell with only two bunks that was designed to hold only two persons" ( id. at ¶ 394). McGee additionally claims that his possessions were frequently covered with ants due to "regular" infestations in the ground floor cells. ( Id. at ¶ 397.)

In Count 9, McGee alleges that, for a period of seven days in administrative segregation at SSCF, he was denied use of a proper, well-functioning toothbrush. (Doc. 7 at ¶¶ 417-36, 786-87, 823-25.) Instead, he was provided a "small, plastic thimble-like' tool" with a "brush" consisting of "hard, inflexible plastic toothpick like protrusions" with which to brush his teeth. ( Id. at ¶¶ 419, 422.) McGee claims that this brush was unsanitary because it forced him "to put his fingers deep into his mouth, " thereby also creating a possibility of choking and causing him to "gag repeatedly." ( Id. at ¶¶ 420-21.) The sharp forward edge of the tool also caused McGee to gouge his cheeks "causing lacerations, severe pain, bleeding, and lasting sores." ( Id. at ¶ 423.) The tool was also ineffective for its intended purpose, brushing, thus causing a buildup of plaque on his teeth that increased their sensitivity. ( Id. at ¶ 426.) McGee notes the particular unfairness of his being forced to use the non-functioning toothbrush because he was placed in segregation only for reasons related to overcrowding in the general population and not because he posed a security risk or deserved punishment. ( Id. at ¶¶ 428-31.)

II. Retaliatory Transfer Claims (Counts 2, 5, 6, and 12)

Four of McGee's claims relate to repeated retaliatory transfers to, between, and from different Vermont correctional facilities.

In Count 2, McGee claims that in January 2007 he was transferred from a Kentucky facility to a Vermont facility in retaliation for his filing of civil suits in Vermont state court against DOC staff. (Doc. 7 at ¶¶ 129-87, 771-72, 799-801.) At the time that attorneys for the State of Vermont noticed their intended depositions of McGee at CRCF, he had been housed in a Kentucky facility for two years, "had acquired a great deal of personal property not allowed in Vermont prisons, had a prison job, and lived in an honor dorm.'" ( Id. at ¶ 134.) McGee filed an objection in Vermont state court against his transfer, but the transfer was completed before the court could issue its ruling. ( Id. at ¶ 144.) To effect the transfer, McGee had to endure "a 23-hour transport from Kentucky to Vermont in full mechanical restraints"; when he arrived at SSCF he "was kept in a windowless, constantly-illuminated torture-chamber holding tank for 2 ½ days." ( Id. at ¶¶ 146-47.) Over the course of nine days, McGee was repeatedly transferred between Vermont correctional facilities, often under "harsh conditions" and with fewer privileges than he had enjoyed in Kentucky, all "as pretext for the true purpose of retaliation for filing a lawsuit and to deliberately disrupt his ability to litigate." ( Id. at ¶¶ 182-83.) McGee also alleges that the transfer deprived him of certain of his legal materials necessary for maintenance of his lawsuits, causing him to miss a motions deadline and rendering him unable to prepare for his deposition. ( Id. at ¶¶ 164-68, 172.)

In Count 5, McGee claims another retaliatory transfer from Kentucky to Vermont in April 2009 for his filing of civil litigation in Vermont state court. (Doc. 7 at ¶¶ 305-56, 778-79, 810-12.) Although jury selection had previously been scheduled, it was "effectively canceled" after the parties submitted cross-motions for summary judgment. ( Id. at ¶ 313.) Despite the cancellation (an entire month prior), attorneys for the State of Vermont requested McGee's transfer to Vermont for jury selection. ( Id. at ¶ 311.) The transfer process again caused McGee intense pain, and, once in Vermont, he was housed under conditions considerably harsher than in Kentucky. ( Id. at ¶¶ 325-38, 345-47.) The transfer, along with instances of "deliberate[] destr[uction]", also curtailed McGee's access to his legal materials, limiting his ability to oppose the DOC's motion for summary judgment. ( Id. at ¶¶ 341, 348.) When he asked why he had been transferred to Vermont to attend a hearing that had been cancelled, he was ...


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