United States District Court, D. Vermont
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (Docs. 144, 147, 151, 161)
Christina Reiss, Chief Judge United States District Court
This matter came before the court for a de novo review of the Magistrate Judge's September 22, 2015 Report and Recommendation ("R & R") (Doc. 161). The Magistrate Judge recommended that the court grant the motions for summary judgment filed by Defendants Andrew Pallito, Greg Hale, Dan Davies, and Kory Stone (collectively, "Defendants") (Docs. 144, 147), and deny the motion to amend filed by Plaintiff Shane Edward Casey (Doc. 151). Plaintiff has timely objected to the R & R, arguing that the R & R's conclusions of law are not supported by the evidence. Defendants oppose Plaintiffs objections.
Plaintiff is self-represented. Defendants are represented by Emily A. Carr, Esq., Katherine Amestoy Martin, Esq., and Sandra A. Strempel, Esq.
I. Factual Background.
The court relies upon the facts as set forth in the R & R with the exception of the disputed facts identified herein.
Plaintiff was incarcerated at facilities operated by the Vermont Department of Corrections (DOC) from January 4, 2008 until on or about July 9, 2015. Prior to his release, he was serving two concurrent sentences of twenty-years to life for two aggravated sexual assaults. Defendants are current or former DOC officials.
A. Plaintiffs Relationship with Inmate Morales.
In June 2011, Plaintiff met fellow inmate Martin Morales while they were housed at the Chittenden Regional Correctional Facility. Mr. Morales had been sexually abused as a child and DOC had designated him as "seriously functionally impaired." See 28 V.S.A. § 906 (defining '"[s]erious functional impairment'" as "a disorder of thought, mood, perception, orientation, or memory as diagnosed by a qualified mental health professional, which substantially impairs judgment, behavior, capacity to recognize reality, or ability to meet the ordinary demands of life and which substantially impairs the ability to function within the correctional setting").
In August 2011, Plaintiff and Mr. Morales were transferred to the Northwest State Correctional Facility ("NWSCF") when the Chittenden Regional Correctional Facility was converted into a women's facility. Approximately two days after their transfer to NWSCF, Plaintiff and Mr. Morales were assigned to share a cell. They remained cellmates for two weeks, at which time Plaintiff was assigned to a single-person cell in the same unit. At some point after their transfer to NWSCF, "staff began to suspect an inappropriate relationship between Mr. Morales and [Plaintiff]." (Doc. 144-2 at 1-2, ¶5.)
At NWSCF, Plaintiff obtained employment as an assistant recreation coordinator and as an assistant law librarian. The NWSCF handbook describes inmate employment as a "privilege" which may be "terminated ... at any time for reasons including but not limited to . .. failure to follow facility rules, risks to safety and/or security, or other behavioral or attitude concerns." (Doc. 144-5 at 4.) Plaintiff s jobs provided "extensive access to the various areas of the correctional facility, including all medium custody units, related hallways, the gymnasium, outside walkways[, ] and courtyards[.]" (Doc. 144-2 at 2, ¶ 9.)
According to Defendant Hale, Plaintiff "took advantage of his extensive access to have unauthorized contact with Mr. Morales in unauthorized areas" and such extensive access thereby "permitted [Plaintiff] to facilitate the inappropriate relationship with Mr. Morales." Id. Plaintiffs expanded access to the facility also "made it difficult for [DOC] staff to monitor [Plaintiffs] contact with Mr. Morales." Id. Such "[unauthorized contact between inmates is a serious security concern for the [DOC], as it puts inmates at risk of harm and can lead to the coordination of serious, threatening security events." Id. at 2, ¶10.
Plaintiff maintains that Defendants were not concerned that Plaintiff was abusing his employment privileges to further an inappropriate relationship with Mr. Morales, and that Defendants fabricated such concern to retaliate against him. He notes that "[f]rom August 2011 until May 31, 2012, [he] was employed as the assistant facility rec-coordinator and the assistant law librarian without any issues or complaints ever regarding [his] job performance." (Doc. 156 at 2, ¶ 5.)
On May 31, 2012, Defendant Kory Stone found Mr. Morales cleaning Plaintiffs cell, and DOC staff investigated whether Plaintiff had been sexually abusing Mr. Morales. This investigation produced "inconclusive" results. (Doc. 144-4 at 2.) Thereafter, Mr. Morales was moved to a different unit at NWSCF.
On June 1, 2012, Mr. Morales filed a grievance against Defendant Hale, challenging his transfer to a different unit. On this same day, additional restrictions were imposed on Plaintiff in his work as the assistant recreation coordinator.
On June 14, 2012, Mr. Morales was transferred to the Northern State Correctional Facility ("NSCF"). On August 24, 2012, he was transferred back to NWSCF. On Friday, October 26, 2012, Mr. Morales learned that he had prevailed on an issue regarding contact with Plaintiff in a case that was pending before the Franklin County Superior Court. See Doc. 156-17 at 1 (Plaintiff describing a conversation that he had with Mr. Morales on October 26, 2012, wherein Mr. Morales stated that '"[he] was just informe[d] by the Franklin Superior Court that some of the Rule 65's [he] filed in the civil division were grante[d] in [his] favor and one of them was regarding contact with [Plaintiff]'"). On that same day, Plaintiff was terminated from his employment as an assistant recreation coordinator. Defendant Hale avers that "[w]hile [he] was very concerned about the potential predation of [Plaintiff] toward Mr. Morales, [he] would have removed [Plaintiff] from his employment for abusing his privileges, even if the inappropriate relationship did not exist between Mr. Morales and [Plaintiff]." (Doc. 144-2 at 2, ¶ 10.) Plaintiff was also placed on fifteen-minute close-observation security checks for the weekend.
After his employment termination, Plaintiff no longer had expanded access to the facility, but he and Mr. Morales still had "unlimited access to each other during recreational] and chow periods." (Doc. 144-4 at 2.) Staff continued to be concerned that Mr. Morales was subject to Plaintiffs predation, although Plaintiff disputes whether such concern was genuinely held. Mental health personnel at NWSCF advised Defendant Hale of their observation that Plaintiff had an "odd and very influential hold over [Mr.] Morales." Id. at 3. They also noted that Plaintiff "fits the description of [Mr.] Morales['s] perpetrator in molesting him when he was a child ([o]lder, charismatic, studying to be a pastor)." Id.
On October 30, 2012, Defendant Hale and Mr. Morales discussed the nature of his relationship with Plaintiff. Mr. Morales insisted that "nothing inappropriate [was] going on but then w[e]nt on to tell [Defendant Hale] how much he trusts [Plaintiff], looks up to him, and how special their relationship is." Id. Defendant Hale also discovered that Mr. Morales had made a video in which he "expressed his fondness" for Plaintiff and sang a song about Plaintiffs "innocence and their friendship." Id. Defendant Hale concluded that the nature of their relationship was "unclear[, ]" but that "there is no question that [Plaintiff] has influence over [Mr.] Morales." Id. Additionally, he noted that "it appears to be grooming behavior on [Plaintiffs] part but at the very least it appears to be [Plaintiff] taking advantage of a troubled and limited inmate and also enjoying the adoration and support of a weaker inmate." Id.
On November 2, 2012, Plaintiff was moved to a different unit. Plaintiff was placed indefinitely on fifteen-minute close-observation checks for "security reasons[.]" (Doc. 156-17 at 4.) On November 4, 2012, Plaintiff filed a grievance against Defendant Hale.
On November 5, 2012, Defendant Hale reviewed the video that Mr. Morales had created. He also reviewed the grievances, filed by both Plaintiff and Mr. Morales, protesting Plaintiffs move to a different unit. After reviewing these materials, Defendant Hale met with Plaintiff and Mr. Morales separately. In his meeting with Mr. Morales, Defendant Hale advised that he had moved Plaintiff because he "did not trust the relationship between [Plaintiff and Mr. Morales] and  was responsible for the safety and security of the facility." (Doc. 144-4 at 4.) Defendant Hale "was also clear that [his] actions were not retaliatory in any way and that he should always feel free to file grievances, complaints, or court actions as he saw fit." Id. In his discussion with Plaintiff, Defendant Hale explained that he was separating him from Mr. Morales because he was concerned about their relationship. Plaintiff insisted that his relationship with Mr. Morales was "positive and appropriate." Id. Plaintiff also noted that he had advised Mr. Morales spiritually, and that many men came to him for guidance and viewed him as a "spiritual leader[.]" Id. It is disputed whether Defendant Hale advised Plaintiff that he should feel free to file grievances, complaints, or court actions.
During his meeting with Plaintiff, Defendant Hale terminated Plaintiffs employment as an assistant law librarian because "it gave him too much access to [Mr.] Morales." Id. at 5. On November 13, 2012, Plaintiff wrote Defendant Pallito a letter, asserting that Defendant Hale had terminated his employment and moved him to a different unit because Plaintiff practiced Christianity.
On November 15, 2012, Defendant Hale transferred Plaintiff to NSCF. Defendant Hale asserts that he transferred Plaintiff to "ensure that [Plaintiff] could not victimize Mr. Morales." (Doc. 144-2 at 3, ¶18.) He further asserts that "the transfer was still necessary because Mr. Morales and [Plaintiff] continued to find ways to circumvent facility rules to find time alone together." Id.
B. Plaintiffs Eighth Amendment Claim.
Plaintiff suffers from multiple sclerosis and has been prescribed injectable Interferon. While incarcerated, Plaintiff received these injections on Mondays, Wednesdays, and Fridays. During his transfer to NSCF, his Interferon medication was not transported with him and was thereafter sent to the wrong facility. As a result, Plaintiff did not receive his scheduled injection on Friday, November 16, 2012. When it was discovered that Plaintiffs medication had been sent to the incorrect facility, Defendants arranged for the medication to be "over-nighted" to NSCF. (Doc. 156-16 at 1.) Plaintiff received his injection on Sunday, November 18, 2012.
Plaintiff claims that the delay in receiving his scheduled injection of Interferon caused "[f]lare-ups of [multiple sclerosis] symptoms" and "new symptoms ... that [a]ffect [him] to [the] present day." (Doc. 147-2 at 6.) Plaintiff also represents that missing the dose caused him "[s]evere mental and emotional distress and anguish" and posttraumatic stress disorder. Id. Plaintiff filed a series of Health Service Requests after his missed dosage. On November 17, 2012, Plaintiff complained of an unsteady gait, headaches, knee and neck pain, and difficulty sleeping, but he described these symptoms as preexisting. On November 19, 2012, he noted that "symptoms starting on [November 18, 2012] of [l]egs cramping up feels lik[e] muscles constricting[, ] . . . pain in left foot, . . . [f]eels like I am on a boat rocking[.] Standing up or sitting down unsteady feeling. Headaches. Muscle [spasms] [l]eft tricep, [b]icep." (Doc. 156-20 at 5.) On November 20, 2012, Plaintiff stated that he was experiencing "new symptoms [and] difficulty" and that it was "incredibly worrisome[.]" Id. at 6. On November 22, 2012, he wrote, "[m]y equilibrium feels off more today. Numbing in right [a]rm. Pain in right [elbow] and knees. I am in an exas[p]eration. Need to contact [neurologists]. I fear condition worsening. This has been [ongoing] since end of October and progressively gotten worse. Vertigo." Id ...