United States District Court, D. Vermont
SUPPLEMENTAL 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.
In a Report and Recommendation (R&R) filed February 11, 2014, I recommended that Defendants' Motion to Dismiss Johnson's Third Amended Complaint (Doc. 56) be granted in part and denied in part. ( See Doc. 57.) Specifically, I recommended that "[a]ll claims against all Defendants should be DISMISSED with the following exceptions: (1) Johnson's equal protection claim against Dan Souliere in his individual capacity for Johnson's allegedly discriminatory job termination, and (2) Johnson's due process and equal protection claims against Superintendent Potanas in his individual capacity for Johnson's allegedly discriminatory administrative segregation." (Doc. 57 at 26.) Johnson and Defendants each filed objections. ( See Docs. 58, 59.) In an Order filed March 6, 2014, the Court adopted the February 11, 2014 R&R in full with the exception of Johnson's class-of-one equal protection claims, and remanded those claims to the undersigned for further consideration and proceedings. (Doc. 60 at 1.)
Defendants have filed a memorandum on the class-of-one equal protection claims. (Doc. 64.) Johnson has not filed any supplemental memorandum. For the reasons stated below, I recommend that Defendants' Motion to Dismiss (Doc. 56) with respect to Johnson's class-of-one equal protection claims be GRANTED.
The relevant factual allegations and procedural history are set forth in the February 11, 2014 R&R. Briefly, the "class-of-one" equal protection claims are as follows. Johnson claims that Dan Soiliere treated him differently by firing him from a kitchen job because he had not been out of disciplinary segregation for 30 days prior to being hired, whereas another inmate was hired without having to wait for 30 days. Johnson also claims that Superintendent Potanas treated him differently than two other inmates by placing Johnson in administrative segregation for an incident with a handcuff key, while two other inmates who were suspects in the incident were allowed to stay in the general population.
As Defendants correctly point out, "[a] class-of-one claim exists where the plaintiff alleges that she has been intentionally treated differently from others similarly situated and that there is no rational basis for the difference in treatment.'" Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010) (quoting Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). To succeed on a class-of-one claim, a plaintiff must show that:
(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.
Id. (quoting Nielson v. D'Angelis, 409 F.3d 100, 104 (2d Cir. 2005)). Defendants also correctly note that "some types of state action inherently involve discretionary decisionmaking based on a vast array of subjective, individualized assessments.'" Id. at 141 (quoting Engquist v. Or. Dep't of Agric., 553 U.S. 591, 603 (2008)). "Such state action does not violate the Equal Protection Clause when one person is treated differently from others, because treating like individuals differently is an accepted consequence of the discretion granted.'" Id. (quoting Engquist, 553 U.S. at 603). Engquist makes clear that public-employment decisions involve precisely that discretion, and are one example of the kind of state action that does not violate the equal protection guarantee. See id. The holding in Engquist was "limited to finding that the class-of-one theory of equal protection has no application in the public employment context.'" Id. (quoting Engquist, 553 U.S. at 607). However, the Second Circuit has recognized that "there may be some circumstances where Engquist is properly applied outside of the employment context." Id. at 142; see also Spiegel v. Adirondack Park Agency, 662 F.Supp.2d 243, 257 (N.D.N.Y. 2009) (noting that the Supreme Court in Engquist "suggested in dictum that a class of one challenge may be inappropriate whenever government action results from the exercise of discretionary authority").
One "crucial difference'" in determining whether a government's determination is the kind of inherently discretionary decisionmaking that does not violate the Equal Protection Clause is whether the government was "exercising the power to regulate or license, as lawmaker'" or whether the government was "acting as proprietor, to manage its internal operations.'" Analytical Diagnostic Labs, 626 F.3d at 142 (quoting Engquist, 553 U.S. at 598). "The government has significantly greater leeway in its dealings with citizen employees than it does when it brings its sovereign power to bear on citizens at large.'" Id. (quoting Engquist, 553 U.S. at 598).
I. Job-Termination Claim Against Dan Souliere
Defendants assert that Engquist controls and bars Johnson's job-termination claim. For the reasons below, I agree. The mere fact that Johnson is an inmate and Engquist is a civilian would not seem to be a principled basis upon which to attempt to distinguish Engquist. See, e.g., Lyons v. Bisbee, No. 3:07-cv-0460-LRH (RAM), 2011 WL 2313652, at *17 n.4 (D. Nev. Apr. 7, 2011) ("The court sees no distinction between this case where Plaintiff is an inmate worker and Engquist, involving a civilian worker."), adopted, 2011 WL 2293333 (D. Nev. June 9, 2011).
Johnson might argue that his case is different than Engquist, because, according to him, he was not terminated based on considerations of a "vast array of subjective, individualized assessment, " but was instead terminated based solely on an arbitrary application of the 30-day rule. Engquist, 553 U.S. at 603. The dissent in Engquist suggested that such cases might arise, and asserted that categorically excluding all class-of-one claims in public-employment cases would prevent review of at least some potentially meritorious claims. See Id. at 612 (Stevens, J., dissenting) ("[T]here is a clear distinction between an exercise of discretion and an arbitrary decision."). The majority of the Court, however, held that "a class-of-one' theory of equal protection has no place in the public employment context." Id. at 594 (opinion of the Court). Given that ...