United States District Court, D. Vermont
REPORT AND RECOMMENDATION
(Docs. 24, 26, 30)
JOHN M. CONROY, Magistrate Judge.
Plaintiff Jason Atherton, proceeding pro se, brings this action against Defendants Orleans County Sheriff's Department ("the Sheriff's Department"), Marketplace Insurance, Deputy Kyle Ingalls ("Deputy Ingalls"), and Deputy Cory Bingham ("Deputy Bingham") alleging that he was injured as the result of a fall sustained during a transport from a criminal pretrial hearing, caused by Defendants' negligence. (Doc. 4.) Now pending before the Court are the Sheriff's Department's Motion to Dismiss the Amended Complaint (Doc. 24), Deputy Ingalls and Deputy Bingham's Motion to Dismiss the Amended Complaint (Doc. 30), and Mr. Atherton's Motion for Appointment of Counsel. (Doc. 26).
For the reasons set forth below, I recommend that the Sheriff's Department's Motion to Dismiss the Amended Complaint (Doc. 24) and Deputy Ingalls and Deputy Bingham's Motion to Dismiss the Amended Complaint (Doc. 30) be GRANTED, and the case be DISMISSED WITHOUT PREJUDICE. I further recommend that Mr. Atherton's Motion for Appointment of Counsel (Doc. 26) be DENIED AS MOOT.
In his Amended Complaint, Mr. Atherton alleges that on October 30, 2012, Orleans County Deputy Sheriffs Ingalls and Bingham transported him to the Orleans County Courthouse for a criminal hearing. (Doc. 23.) After the hearing, Deputy Ingalls and Deputy Bingham allegedly escorted Mr. Atherton down a staircase, with one deputy walking in front of him and the other "a couple steps behind" him. ( Id. at 1.) Mr. Atherton alleges that he was "shackled" with handcuffs and ankle cuffs and a "[b]eltchain" around his waist, when "[o]ne of the Ankle Cuffs caught around [his] right foot" causing him to fall down the flight of stairs. ( Id. ) He alleges that he injured his lower back and right knee as a result of the fall and was transported to the hospital for treatment. ( Id. at 1-2.) Mr. Atherton alleges that he cannot receive the care he needs for these injuries from the Department of Corrections. ( Id. at 2.) He alleges that as a proximate result of Deputy Ingalls and Deputy Bingham's acts or omissions, he has experienced pain and suffered and "a permanent disability." ( Id. )
The Amended Complaint further alleges that "the Orleans County Sheriffs were [n]egligent" and were "obl[i]gated under Vermont [s]tatutes to have the inmate[']s safety in mind during transport." ( Id. ) Deputy Ingalls and Deputy Bingham allegedly "failed in their duties to protect [him] from harm" when they did not follow a transport protocol requiring them to hold onto inmates being escorted down stairs. ( Id. ) Mr. Atherton seeks monetary damages. ( Id. ) The Amended Complaint names "Marketplace Insurance" in the case caption as a defendant, but no factual averments are set forth in the Amended Complaint with respect to Marketplace Insurance.
Mr. Atherton filed his Amended Complaint on May 6, 2014. (Doc. 23.) On May 13, 2014, the Sheriff's Department filed a Motion to Dismiss the Amended Complaint (Doc. 24) for lack of subject-matter jurisdiction and failure to state a claim, renewing the arguments set forth in its initial Motion to Dismiss (Doc. 8), and further arguing that the parties lack the diversity of citizenship necessary to satisfy the requirements of 28 U.S.C. § 1332. (Doc. 24 at 1.) Deputy Ingalls and Deputy Bingham also move to dismiss the Amended Complaint on the same grounds as those advanced by the Sheriff's Department. (Doc. 30.)
Although Mr. Atherton did not respond to the Sheriff's Department's pending Motion to Dismiss, I have considered the arguments presented in Mr. Atherton's opposition to the Motion to Dismiss the original Complaint, filed on April 30, 2014, as it pertains to both Motions. (Doc. 19.) On May 29, 2014, Mr. Atherton filed a Motion for Appointment of Counsel, asserting a lack of familiarity with the law and limited access to the law library, as well as his unsuccessful attempts to seek legal representation. (Doc. 26.)
I. Motions to Dismiss the Amended Complaint
The Sheriff's Department, joined by Deputies Ingalls and Bingham, argue that this Court lacks subject-matter jurisdiction in this negligence action, because: (1) the parties in the matter are all citizens of the State of Vermont and diversity of citizenship is lacking, as required by 28 U.S.C. § 1332; and (2) the Amended Complaint does not state a federal question, as required by 28 U.S.C. § 1331. (Doc. 24 at 1, 4.) Alternately, the Sheriff's Department argues that assuming arguendo Mr. Atherton's claims are construed as claims brought pursuant to 42 U.S.C. § 1983, the Amended Complaint fails to state a claim on which relief can be granted.
A. Standard of Review
The pending Motions to Dismiss for lack of subject-matter jurisdiction are brought pursuant to Fed.R.Civ.P. 12(b)(1). A complaint is properly dismissed for lack of subject-matter jurisdiction under Rule 12(b)(1) "when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). The "plaintiff bears the burden of proving subject matter jurisdiction by a preponderance of the evidence." Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d 635, 638 (2d Cir. 2005) (citing Luckett v. Bure, 290 F.3d 493, 496 (2d Cir. 2002)). In reviewing a Rule 12(b)(1) motion, the Court "must accept as true all material factual ...