United States District Court, D. Vermont
REPORT AND RECOMMENDATION (Doc. 56)
JOHN M. CONROY, Magistrate Judge.
Edward Johnson, a Vermont inmate proceeding pro se, brings this action under 42 U.S.C. § 1983 claiming that he was wrongfully terminated from his job in the prison kitchen and that, in a separate incident, he was wrongfully placed in administrative segregation during an investigation of a missing handcuff key. According to Johnson, the allegedly discriminatory termination and administrative segregation violated his rights under the Eighth Amendment and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment. Defendant Andrew Pallito, Commissioner of the Vermont Department of Corrections ("DOC"), previously moved to dismiss on several grounds. ( See Doc. 9.) The Court granted the Motion to Dismiss and granted Johnson leave to amend his Complaint. (Doc. 16.) As described more fully below, several amendments followed.
Currently pending is Defendants' Motion to Dismiss Johnson's Third Amended Complaint. Defendants assert that Johnson's Third Amended Complaint should be dismissed because it fails to comply with Local Rule 15 and with the Court's prior orders. Defendants also contend that Johnson's Third Amended Complaint should be dismissed on substantive grounds. In support of that latter argument, Defendants state that they incorporate by reference their prior Motions to Dismiss (Docs. 9, 42) pursuant to Fed.R.Civ.P. 10(c). Johnson has not filed any opposition.
For the reasons set forth below, I recommend that, to the extent Johnson seeks to renew his prior Motions to Appoint Counsel, that Motion should be DENIED. I further recommend that the Motion to Dismiss (Doc. 56) be GRANTED IN PART and DENIED IN PART.
The factual allegations recited below appear primarily in Johnson's original Complaint (Doc. 4) and the documents attached to it. Despite the Court's repeated prior cautions that amended complaints supersede prior versions in all respects, as well as instructions to set forth all claims against all defendants in short and plain statements, Johnson's handwritten Third Amended Complaint (Doc. 47) and "2nd Third Amended Complaint" (Doc. 49) are nonconforming in a variety of ways. Johnson's failure to respect the mechanics of filing an amended complaint is one basis of Defendants' pending Motion. I discuss that issue below, but for present purposes recite Johnson's factual allegations as I understand them based on all of Johnson's pleadings.
On June 9, 2010, Johnson received permission to be moved from the "RHU" (Restricted Housing Unit) back into the general population. (Doc. 40-1.) On or about June 24, 2010, Northeast Regional Correctional Facility ("NERCF") food service supervisor Robert Blake hired Johnson to work in the prison kitchen. The following day, a different supervisor, Daniel Souliere, terminated Johnson from the kitchen job on the ground that Johnson had not been out of Echo Unit (disciplinary segregation) for thirty days prior to being hired. According to Johnson, who is black, Souliere actually terminated him because Souliere was "on a big power trip" and does not like him. (Doc. 4 at 3.) Johnson claims that Souliere then proceeded to hire a white inmate who had previously been fired for fighting in the kitchen.
Johnson filed administrative grievances. He filed an informal complaint on June 25, 2010, to which staff responded on June 26, 2010 stating: "Needs to be out of Echo 30 days before working in kitchen. Can be rehired at that time." (Doc. 4-2.) On July 11, 2010, he submitted a grievance, asserting that there was no such 30-day rule, and that other inmates had been hired within 30 days of their release from Echo Unit. (Doc. 4-3.) On July 20, 2010, Souliere was apparently assigned to investigate and respond to the grievance. ( See Doc. 4-6.) On July 23, 2010, Souliere signed a response to Johnson's grievance indicating:
It is and has been kitchen policy that anyone receiving a major DR or being released from Echo unit must wait 30 days before being considered for employment in the kitchen. Waiting 30 days does not guarantee employment in the kitchen. Anyone living in Delta unit may not be considered for employment until they move to another unit. Positions are unequivocally the discretion of Facility Food Service Supervisor.... Inmate Edward Johnson can reapply for a position in the kitchen at any time and will be considered for employment by the FFSS Souliere.
( Id. ) On July 28, 2010, a supervisor issued a decision stating: "Concur with FSS decision." (Doc. 4-7.)
Johnson appealed the July 28, 2010 decision to the Facilities Executive, stating that he "would like to see th[e] policy as to why, where [sic] I can't be hired prior to getting out of Echo Unit." (Doc. 4-4.) The Executive apparently issued an unfavorable decision dated August 2, 2010, and on August 24, 2010 Johnson filed an appeal to Commissioner Pallito complaining that Souliere was unfairly involved in the grievance investigation. (Doc. 4-5.) There is no indication of a response by Commissioner Pallito. On October 19, 2010, Johnson filed a request form asking to see the 30-day policy. Souliere wrote the following response on October 21, 2010:
It is the policy of this Kitchen Supervisor that any person sent to Echo or Foxtrot... must wait 30 days before they can be considered for hire. You may submit [an] application at any time. Page 42 of Inmate handbook [states:] "Under no circumstance does submitting an application guarantee a position in food service. Positions are unequivocally the d[e]cision of the Facility Food Service Supervisor (FFSS)."
The factual allegations and materials in the record relating to Johnson's administrative-segregation claim are as follows. On or about January 11, 2011, NERCF officials commenced an investigation regarding a missing handcuff key. NERCF treated the missing key as a serious incident. ( See Doc. 40-4 at 4) ("NERCF was on Emergency lock-down status on 1/11/11 for the entire day while all staff searched for this item...."). Indeed, under DOC policies, an inmate's possession of a handcuff key could constitute a "major" disciplinary violation. See State of Vermont, Agency of Human Services, Department of Corrections, "Facility Rules and Inmate Discipline, " #410.01 (2012) [hereinafter "Policy 410.01"], available at http://www.doc.state.vt.us/about/policies/rpd/correctional-services-301-550/401-500-programs-security-and-supervision/410-01-facility-rules-and-inmate-discipline (listing "major" violations as including conduct that "disrupts or interferes with inmate safety, security, or the orderly running of the facility"); see also State of Vermont, Department of Corrections, Policy and Operating Procedures, "Key Control - Facilities" (1985), available at http://www.doc.state.vt.us/about/policies/rpd/correctional-services-301-550/401-500-programs-security-and-supervision/416 (describing effective key control as "essential for the safe and orderly operation of a correctional facility").
Johnson and two other inmates were reportedly identified as suspects. Johnson was placed in administrative segregation during the investigation; a "Segregation Placement and Notice of Hearing" dated January 11, 2011 indicated that he was being placed in segregation due to a "pending investigation, " and that a hearing was scheduled for January 18, 2011. (Doc. 4-13.) The two other suspects-both of whom are white- were allowed to stay in the general population. On January 30, 2011, Johnson filed a request form with Superintendent Mark Potanas seeking the results of the investigation. In a response dated February 1, 2011, Potanas indicated: "You have been over-ridden up to close custody." (Doc. 4-15.) The handcuff key was found on February 11, 2011.
On March 15, 2011 a second "Segregation Placement and Notice of Hearing" was issued to Johnson. (Docs. 4-14; 40-4 at 3.) The March 15 notice stated that Johnson was being placed in segregation because he had demonstrated that he was "a threat to the secure and orderly running of the facility." ( Id. ) The notice indicated that a hearing would be held on March 21, 2011. ( Id. ) A hearing was held on that date, and the hearing officer determined that administrative segregation was warranted because the evidence showed that Johnson had gained access to the key and hidden it in the law library. ( See Doc. 40-4 at 2.) The Superintendent upheld the decision on March 23, 2011. ( Id. ) Johnson remained segregated from the general population, and was still segregated at the time that he filed his Complaint on June 20, 2012.
Beginning with an informal complaint dated February 1, 2011 and ending with an appeal to Commissioner Pallito dated March 29, 2011, Johnson grieved his segregation but apparently received no favorable responses at any level of the grievance process. ( See Docs. 4-9, 4-10, 4-11, 4-12.)
Johnson asserts that the above events caused him "mental anguish, stress, suffering" and "los[s] of personal property." (Doc. 4 at 6.) For relief, he seeks $1.5 million in monetary damages, Souliere's demotion or termination, and eradication of the handcuff-key incident from his prison record.
Johnson filed his original Complaint on June 20, 2012. He filed a Motion to Appoint Counsel on July 11, 2012, asserting that he cannot afford counsel to represent him. (Doc. 6.) The Court denied that Motion without prejudice on August 10, 2012, reasoning that Johnson had failed to demonstrate that his case is complex, that conflicting evidence would be presented, or that he would be unable to investigate and pursue his claims without the assistance of counsel. (Doc. 8 at 3.)
On August 20, 2012, DOC Commissioner Pallito, as the sole Defendant in the case at the time, moved to dismiss for failure to state a claim, arguing that: (1) the claim for monetary damages against him in his official capacity was barred by the Eleventh Amendment; (2) Johnson failed to exhaust all available administrative remedies; (3) the Complaint failed to allege any physical injury; (4) there was no allegation of Pallito's personal involvement; and (5) the claims failed to allege a violation of a constitutional right or federal law. (Doc. 9.) Johnson subsequently filed a Motion to Amend to add several individuals as Defendants, but offered no additional facts in support of his claims. (Doc. 13.)
In a Report and Recommendation ("R&R") dated November 26, 2012 (Doc. 14), I recommended that the Court grant Pallito's Motion to Dismiss. I concluded that the Eleventh Amendment barred the recovery of monetary damages from Pallito in his official capacity; that the Prison Litigation Reform Act's ("PLRA") exhaustion requirement was satisfied; that the PLRA's physical injury requirement precluded any claim for compensatory damages; and that the equal protection and due process claims failed because Pallito was not sufficiently personally involved. I also addressed the merits of all of Johnson's claims-even the claims that I concluded could not proceed against Defendant Pallito for lack of personal involvement. I concluded that Johnson had stated class-of-one equal protection theories for his administrative-segregation and job-termination claims; that he had stated a ...