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McCain v. United States

United States District Court, D. Vermont

March 17, 2015


OPINION AND ORDER (DOCS. 9, 11, 13, 30, 36, 52, 56, 60, 63, 64, 82)


Plaintiff Zach McCain III, proceeding pro se, brings this civil rights action against Defendants United States of America, Correction Corporation of America ("CCA"), Equal Employment Opportunity Commission ("EEOC" or "the Commission"), the State of Vermont ("the State"), Kohl's Department Stores, Inc. ("Kohl's Stores"), Costco Wholesale Corporation ("Costco"), R. Benoit ("Officer Benoit"), John Doe 1, John Doe 2, Bart Chamberlain ("Officer Chamberlain"), Robert Sanders ("Mr. Sanders"), Jacqueline A. Berrien ("Ms. Berrien"), Macy's Retail Holdings ("Macy's Holdings"), Kenneth An ("Mr. An"), and Mary Ahrens ("Ms. Ahrens"). Mr. McCain alleges that Defendants discriminated against him on the basis of race, violated his constitutional rights, and otherwise conspired to discriminate against him by preventing him from obtaining employment.

Now pending before the Court are: Officer Benoit's Motion to Dismiss (Doc. 9); Officer Chamberlain's Motion to Dismiss (Doc. 11); Macy's Holdings's Motion to Dismiss (Doc. 13); Costco and Ms. Ahrens's Motion to Dismiss (Doc. 30); CCA's Motion to Dismiss (Doc. 36); Kohl's Stores's Motion to Dismiss (Doc. 52); the State's Motion to Dismiss (Doc. 56); Motion to Dismiss filed by the United States, EEOC, Mr. An (official capacity), Ms. Berrien (official capacity), and Mr. Sanders (official capacity) (Doc. 60); Motion to Dismiss filed by Mr. An (individual capacity) and Ms. Berrien (individual capacity) (Doc. 63); Mr. McCain's Motion for Sanctions (Doc. 64); and Mr. McCain's Motion to Reconsider (Doc. 82). John Doe 1 and John Doe 2 have not been served, and Mr. Sanders has not been served in his individual capacity.[1]

Factual Background and Procedural History

This case was transferred from the U.S. District Court for the District of Columbia by the Honorable Richard J. Leon on April 4, 2014 (Doc. 4) upon review of Mr. McCain's original Complaint (Doc. 1), Motion for Leave to Proceed In Forma Pauperis (" IFP") (Doc. 2), and subsequent Amended Complaint (Doc. 7.) On May 8, 2014, this Court granted Mr. McCain's Motion for Leave to Proceed IFP (Doc. 6.)

For the limited purpose of ruling on the pending motions to dismiss, the facts alleged in Mr. McCain's Amended Complaint will be accepted as true. The Amended Complaint alleges a series of different incidents summarized here:

A. Mr. McCain's Criminal History

Mr. McCain is African-American. In 1993 or 1994, Mr. McCain pled guilty to federal criminal charges under a plea agreement and was ordered to serve eight years and nine months in prison. In 2003, he was released. Between 2007 and 2009, he pled guilty to two additional charges in Vermont state court after entering into separate plea agreements, and he served an additional six months. None of these plea agreements addressed the issue of Mr. McCain's future employment. Nonetheless, these convictions have impacted his ability to obtain employment.

B. Allegations Regarding Macy's Holdings

On or about February 10, 2010, Mr. McCain applied for a position at a Macy's Holdings retail store and responded "no" to a question regarding previous criminal convictions (Doc. 7 at 6.) Macy's Holdings did not perform criminal background checks for menswear department employees at its retail stores in Vermont, New Hampshire, and Maine, "which are predominantly white populated states." Id . On April 10, 2010, Macy's Holdings hired Mr. McCain, and after a month, he was promoted to the home department. After a conflict arose between Mr. McCain and a fellow employee, the employee reported to the store security officer, Mr. Ploof, that she had found information about Mr. McCain on the internet.

On or about June 5, 2010, when Mr. McCain reported for work, Mr. Ploof requested to search Mr. McCain's bag. Mr. McCain consented with the understanding that if he refused, Mr. Ploof would call the police. Mr. Ploof found nothing. On June 6, 2010, Mr. Ploof notified Mr. McCain that Macy's Holdings had decided to suspend him for falsifying his employment application.

On July 12, 2010, Mr. McCain applied for unemployment benefits with the State of Vermont Department of Labor. He received benefits after the claims adjudicator determined that Mr. McCain did not engage in misconduct. Mr. McCain also filed a charge of employment discrimination with the State of Vermont Attorney General's Office ("VT AGO"). VT AGO eventually rendered a determination that Macy's Holdings did not discriminate against Mr. McCain on the basis of his race.

C. Allegations Regarding Kohl's Stores

On or about Augusut 5, 2010, Kohl's Stores rescinded an offer of employment it had made to Mr. McCain after receiving the results of a criminal background check. On or about March 2, 2013, Mr. McCain spoke with a human resource officer and then a different employee at Kohl's stores, both of whom gave him conflicting information about the company's criminal background check policy.

D. Allegations Regarding Costco

In or about September 2010, Mr. McCain filed a charge of discrimination against Costco with the EEOC. In or about November 2010, EEOC Investigator Paul Campbell sent Mr. McCain a cause finding, and "[a]ll parties then entered into conciliation thereafter." Id. at 8. Ms. Ahrens served as legal counsel for Costco during the settlement negotiations. On March 10, 2012, Mr. McCain received settlement documents from the EEOC, which he signed and returned to Mr. Campbell. Mr. Campbell instructed him that he would receive settlement documents from Costco as well. A few months later, having not received the settlement agreement from Costco, a dispute arose between Mr. McCain and Ms. Ahrens concerning the amount Costco would pay him and whether taxes would be paid from that amount.

On June 26, 2012, Mr. McCain received a document from Ms. Ahrens indicating that she and Mr. Campbell had "entered into some type of agreement for [Mr. Campbell] to coordinate the signing of Costco's Release and Settlement Agreement with [Mr. McCain]." Id. at 9. On November 2, 2012, Mr. McCain sent a letter to Ms. Berrien, EEOC Chair, to notify her that the agreement proposed by Costco "made [Mr. McCain] ineligible to ever [be] hired at any [of] their facilities." Id. at 10. EEOC's New York Field Office District Director, Kevin J. Berry, "acting for [Ms. Berrien], made a determination that the particular provision was retaliatory, but took no legal actions to change the harm that it had already [] caused." Id.

On December 12, 2012, Mr. An, EEOC Boston Field Office Enforcement Supervisor, instructed Mr. McCain to give Ms. Ahrens his social security number. According to a former EEOC employee named Ricardo Jones, "there was a conspiracy against black people through the EEOC[.]" Id. at 15.

E. Allegations Involving Police Stops

On March 12, 2013, Officer Benoit, a City of Winooski police officer, stopped Mr. McCain while he was driving and issued him a ticket. On March 30, 2013, John Doe 1, a City of Vergennes police officer, stopped Mr. McCain while he was driving because "his tag light was out, but didn't issue him a ticket on the spot." Id. at 18. John Doe 2, another police officer, then arrived on the scene. Mr. McCain consented to a search of his vehicle, and during the search, John Doe 1 opened an envelope containing numerous settlement agreements. Upon seeing the documents and "due to [John Doe 1] being suspicious of [Mr. McCain] traveling in a Saab, " John Doe 1 searched the glove compartment and eventually found alleged "residue of heroin." Id . John Doe 1 and John Doe 2 did not believe Mr. McCain when he told them he thought the substance was brownie mix. Subsequent charges related to this incident were later dismissed.

A few days later, Officer Chamberlain, a Town of Williston police officer who is Caucasian, stopped Mr. McCain while driving. When Officer Chamberlain determined that Mr. McCain had been stopped in Vergennes "for heroin" he "allowed [Mr. McCain] to leave[.]" Id. at 19.

F. General Conspiracy Against African-Americans

The Amended Complaint also alleges a series of other facts in support of Mr. McCain's constitutional conspiracy claims. First, the State contracts with CCA to provide prison facilities for Vermont inmates. African-Americans comprise only one percent of the Vermont population, but they comprise 10.3 percent of Vermont's prison population. CCA has entered into a contract with Macy's Holdings "for cheap convict labor... to move the conspiracy closer to the ultimate objective[.]" Id. at 14. In 2011, CCA took in $1.7 billion in revenue and profits.

The State, through Governor Peter Shumlin or his predecessor, also furthered the conspiracy against African-Americans by enacting 23 V.S.A. § 601, which criminalizes operating a vehicle with a suspended license.

Additionally, the authority that EEOC delegates to the VT AGO to investigate federal employment discrimination claims "is used under a disguise to facilitate the conspiracy between the State of Vermont in a hub of conspiracy with CCA, and other states, to make conditions so[] that it would perpetuate the adverse impact upon African[-]Americans [such] as [Mr. McCain], as an attempt[] to assert pressure, to bring about criminal convictions." Id. at 11.

G. Summary of Legal Claims

Mr. McCain alleges 16 different causes of action arising under federal statute and the United States and Vermont constitutions. They include conspiracy to deprive Mr. McCain of constitutional rights, First, Fourth, Fifth, Tenth, Thirteenth and Fourteenth Amendment rights violations, Title VII violations, violations of the Contracts Clause of Article I of the United States Constitution, causes of actions brought pursuant to 42 U.S.C. §§ 1981(a), 1983, 1985(2), 1985(3), and 1986, Article 11 violations under the Vermont Constitution, and a cause of action brought pursuant to 42 U.S.C. § 552A. Mr. McCain seeks declaratory and injunctive relief and compensatory and punitive damages (Doc. 7 at 24-25.)


I. Mr. McCain's Motion to Reconsider

On January 20, 2015, the Court issued a text-only order granting various motions for extensions of time and denying as moot certain other motions filed by Mr. McCain (Doc. 81.) Mr. McCain moves to reconsider this Order in part, arguing that the Court should not have granted Costco's Motion to Seal Exhibit B (Doc. 31), that he did not receive copies of some of Defendants' motions (Docs. 29, 35, 41, 42), and that the Court should not have granted Defendants' motions as unopposed (Doc. 82.)

Under Second Circuit law, "[t]he standard for granting [a motion for reconsideration] is strict, and reconsideration will generally be denied unless the moving party can point to controlling decisions or data that... might reasonably be expected to alter the conclusion reached by the court." Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The moving party may "obtain relief only when [it] identifies an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Kolel Beth Yechiel Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 108 (2d Cir. 2013) (internal quotation marks omitted). "A motion for reconsideration may not be used to advance new facts, issues or arguments not previously presented to the [c]ourt, nor may it be used as a vehicle for relitigating issues already decided by the [c]ourt." Davidson v. Scully, 172 F.Supp.2d 458, 461 (S.D.N.Y. 2001) (citing Shrader, 70 F.3d at 257); accord Nat'l Union Fire Ins. Co. v. Las Vegas Prof'l Football Ltd. P'ship, 409 F.Appx. 401, 403 (2d Cir. 2010) (noting it is "black letter law" that a motion for reconsideration may not "be used as a vehicle for relitigating issues already decided by the [c]ourt") (internal quotation marks omitted).

Motion to Seal

First, the Court will address its order granting Costco's Motion to Seal Exhibit B (Doc. 31), which sealed the confidential settlement agreement between Mr. McCain and Costco referenced in the Amended Complaint and attached to Costco and Ms. Ahren's Motion to Dismiss. The decision as to whether to seal documents filed with the court is a matter of discretion. See Nixon v. Warner Comm., Inc., 435 U.S. 589, 599 (1978) (trial court has discretion to determine access to court documents "in light of the relevant facts and circumstances of the particular case."). Mr. McCain concedes that he did not file any specific objection to the Motion to Seal (Doc. 82-1 at 2), and instead argues that the Court should not rely on this document without first converting the pending Motion to Dismiss into a Motion for Summary Judgment. This Opinion and Order has addressed Mr. McCain's concerns, where, as set forth in greater detail below, the Court denied without prejudice due to certain disputes regarding this document. At this stage, Court has not relied upon the contents of settlement agreement to reach this conclusion. If and when a motion before the Court requires the Court to review the settlement agreement, a different outcome may be warranted with respect to any motion to seal. See Fed.R.Civ.P. 5.2(d) and (f); Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982) ("[D]ocuments used by parties moving for, or opposing, summary judgment should not remain under seal absent the most compelling reasons.").

Service of Motions

Mr. McCain argues he never received copies of some of Defendants' motions seeking enlargement of time (Doc. 82-1 at 4.) Under Fed.R.Civ.P. 5, service of motions may be made by "mailing [a copy] to the person's last know address - in which event service is complete upon mailing[.]" Fed.R.Civ.P. 5(b)(2)(C). The Court's Local Rules of Procedure also require a party to provide the Court with her or her current addresses. See Local Rule 11(C). A review of Defendants' motions for enlargement and accompanying certificates of service indicate that in each instance, Defendants mailed copies of their respective motions to Mr. McCain at the Burlington, Vermont mailing address on file with the Court. See Docs. 29 at 4, 35 at 2, 41-1 at 2, 42 at 5. Accordingly, Mr. McCain cannot argue that he was not apprised of the contents of Defendants' motions.

Failure to File Opposition

Finally, Mr. McCain argues that the Court should not have granted Defendants' motions as unopposed, because Defendants noted in their papers that Mr. McCain refused to consent to their motions (Doc. 82-1 at 8.) Regardless of Mr. McCain's communications with Defendants, he did not file any memoranda in opposition, which despite his status as a pro se party, he has demonstrated his ability to do in other instances.

Accordingly, because Mr. McCain has not raised any controlling law that would alter the Court's conclusions with respect to its Order (Doc. 81), Mr. McCain's Motion to Reconsider (Doc. 82) is DENIED.

II. Applicability of Rule 12(b)(6) Motion to Dismiss

Before turning to the pending motions to dismiss, the Court addresses Mr. McCain's argument that Defendants cannot seek dismissal of his claims pursuant to Fed.R.Civ.P. 12(b)(6), because the District for the District of Columbia's Order Transferring Pro Se Case ("Transfer Order") (Doc. 4) and this Court's Order granting Mr. McCain's Motion for Leave to Proceed IFP ("IFP Order") (Doc. 6) effectively deemed his claims "viable." See Doc. 34 at 10 and Doc. 39 at 1-2. Mr. McCain argues that Defendants can only move for reconsideration of both orders pursuant to Fed.R.Civ.P. 59(e) or Rule 60(b).[2]

First, with respect to the Transfer Order, Judge Leon did not address the merits of any of Mr. McCain's legal claims, and instead transferred the entire matter to this District for all further proceedings, including IFP review. Although Mr. McCain is confused by the sentence, "[t]he Court assumes deciding that plaintiff states viable claims[, ]" (Doc. 4 at 1), the Court reads this sentence with the typographical omission of the word "without." This sentence should read: "The court assumes without deciding that plaintiff states viable claims." The Court does not construe the Transfer Order as ruling that Mr. McCain "states viable claims, " given that the sentence lacks proper syntax otherwise.

Mr. McCain's argument with respect to the IFP Order - that this Court has already ruled on the merits of his claims - is also incorrect. The IFP Order merely grants Mr. McCain IFP status based upon the financial circumstances shown in the affidavit required by 28 U.S.C. § 1915(a). The Court did not issue any ruling entitling Mr. McCain to final judgment with respect to any of his claims. The fact that the Court did not identify or otherwise rule on possible grounds for sua sponte dismissal pursuant to 28 U.S.C. § 1915(e)(2), [3] does not preclude the Court from later dismissing Mr. McCain's claims. See Saleh v. United States, 580 Fed.App'x 22, 24 (2d Cir. 2014) ("A district court has the inherent authority to dismiss an action as frivolous, regardless of whether the plaintiff has been granted leave to proceed in forma pauperis .") (citing Fitzgerald v. First E. Seventh St. Tenants Corp., 221 F.3d 362, 363-64 (2d Cir. 2000).

Rule 12 expressly provides that Defendants may assert the defenses of lack of subject matter jurisdiction (Rule 12(b)(1)) or failure to state a claim (Rule 12(b)(6)) by motion, and the Rule further requires that such motions be made prior to filing a responsive pleading or answer. See Fed.R.Civ.P. 12(b) ("a party may assert the following defenses by motion... A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed."). Even if Defendants had not filed these motions as responsive pleadings, the Court would have authority to construe them as motions for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). See Patel v. Contemp. Classics of Beverly Hills, 259 F.3d 123, 125-26 (2d Cir. 2001); see also Fed.R.Civ.P. 12(h)(3) ("[i]f the court determines that it lacks subject-matter jurisdiction, the court must dismiss the action."). The Court rejects Mr. McCain's argument that Defendants are precluded from filing motions to dismiss based on prior rulings and therefore proceeds to the pending motions.

III. Motion to Dismiss Standard

Defendants seek dismissal of the Amended Complaint either under Federal Rules of Civil Procedure 12(b)(1) or 12(b)(6). Filings by self-represented parties are "to be liberally construed, and a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotations marks and citations omitted).

Federal Rule of Civil Procedure 8(a) requires the plaintiff to provide "a short plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). On a motion to dismiss pursuant to Rule 12(b)(6), the court reviews the face of the plaintiff's complaint and accepts all factual allegations as true and draws all reasonable inferences in favor of the plaintiff. Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). "[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "The plausibility standard is not akin to a probability requirement, ' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Iqbal, 556 U.S. at 678.

Even a facially-sufficient complaint may be 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 party asserting subject matter jurisdiction has the burden of proving, by a preponderance of the evidence, that the court has jurisdiction. Id.

Finally, a district court may dismiss a case if it determines that the complaint "is frivolous or malicious; fails to state a claim on which relief may be granted; or seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B).

IV. Officer Benoit and Officer Chamberlain's Motions to Dismiss

Officer Benoit and Officer Chamberlain both move to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). Because the facts alleged against these Defendants are similar, both motions are addressed together.

The Amended Complaint alleges that Officer Benoit "followed [Mr. McCain's] vehicle onto private property, and pursuant to 23 V.S.A. Section 601, turned his lights on, and jumped out of his police cruiser[.]" (Doc. 7 at 17.) Officer Benoit "stated are you Zack McCain?['] and then asked him did he have any drugs, and gave him a ticket." Id . As for Officer Chamberlain, the Amended Complaint alleges that he pulled Mr. McCain over several weeks later, despite the fact that Mr. McCain "made no incorrect [turns] whatsoever." Id. at 19. "Defendant Chamberlain said he saw in the computer [Mr. McCain] had gotten stop[ped] in Vergennes for heroin, but allowed [Mr. McCain] to leave because he was under an implicit impression that [Mr. McCain] was under a condition of servitude... prohibited by the 13th Amendment." Id.

The Amended Complaint alleges that both Defendants violated Mr. McCain's Fourth Amendment and Article 11 rights. The Amended Complaint also alleges that Officer Benoit and Officer Chamberlain both "carr[ied] out overt acts of the conspiracy between the State of Vermont and CCA" to increase incarceration rates among African-Americans. Id. at 3, 4.

A. Conspiracy Claims

Section 1985(3) prohibits conspiracies "for the purpose of depriving... any person or class of persons of the equal protection of the laws." 42 U.S.C. § 1985(3). A § 1985(3) claim "must plead facts that show: 1) a conspiracy; 2) for the purpose of depriving any person or class of persons of the equal protection of the laws or of the equal privileges and immunities under the laws; and 3) an act in furtherance of the conspiracy; 4) whereby a person is injured in his person or property or deprived of a right or privilege of a citizen." Martinez v. Cnty. of Suffolk, 999 F.Supp.2d 424, 431 (E.D.N.Y. 2014) (citing Thomas v. Roach, 165 F.3d 137, 146 (2d Cir. 1999)).

The plaintiff "must provide some factual basis supporting a meeting of the minds, such as that defendants entered into an agreement, express or tacit, to achieve the unlawful end." Webb v. Goord, 340 F.3d 105, 110 (2d Cir. 2003); see also Ostrer v. Aronwald, 567 F.2d 551, 553 (2d Cir. 1977) ("[C]omplaints containing only conclusory, vague, or general allegations of conspiracy to deprive a person of constitutional rights will be dismissed.").

Here, the Amended Complaint does not allege any facts to suggest that Officer Benoit or Officer Chamberlain entered into a meeting of the minds with the State of Vermont or CCA to achieve an unlawful end. Mr. McCain argues that the traffic stops themselves constitute evidence of an "overt act." (Doc. 34 at 2.) However, these allegations do not give rise to a plausible inference that either traffic stop was connected to the larger conspiracy involving the State and CCA.

Furthermore, none of the facts suggest "some racial or perhaps otherwise class-based, invidious discriminatory animus behind the [alleged] conspirators' action." Thomas, 165 F.3d at 146 (internal quotations omitted). Because the Amended Complaint relies upon vague, conclusory allegations and lacks allegations suggesting racial animus, Mr. ...

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