United States District Court, D. Vermont
JAMES T. BURKE, Plaintiff,
STATE OF VERMONT and VERMONT DEPARTMENT OF CORRECTIONS, Defendants.
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION (Docs. 28, 39)
CHRISTINA REISS, CHIEF JUDGE
matter came before the court for a review of the Magistrate
Judge's March 28, 2016 Report and Recommendation ("R
& R") (Doc. 39), wherein the Magistrate Judge
recommends that the court grant the motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6) filed by the State of
Vermont and the Vermont Department of Corrections
(collectively, "Defendants"). (Doc. 28.) No party
has filed an objection to the R & R, and the deadline for
doing so passed on April 11, 2016. The court took this matter
under advisement thereafter.
times relevant to the original Complaint and the Amended
Complaint, Plaintiff James T. Burke was an inmate in the
Defendants' custody and control and incarcerated at
Corrections Corporation of America's ("CCA")
Lee Adjustment Center ("LAC") in Beattyville,
Kentucky. On July 13, 2015, Plaintiff was transferred from
LAC to the Northlake Correctional Facility ("NCF")
in Baldwin, Michigan.
March 5, 2015, prior to his transfer, Plaintiff filed his
original Complaint, in which he alleged claims arising from
two separate incidents at LAC. In the first incident, on
November 3, 2012, another Vermont inmate at LAC allegedly
stole or destroyed approximately $800 of Plaintiff s personal
property. Plaintiff claims that LAC staff was negligent in
allowing the theft to occur, and that CCA's subsequent
offer to reimburse him $50 violated the Equal Protection
Clause because it offered more money to reimburse other
inmates whose property was stolen or damaged. In the second
incident, on January 22, 2015, LAC staff allegedly lost
Plaintiffs personal property following a search of his cell.
Plaintiff further alleged that LAC had been
"forced" to place a staff member in each housing
unit at all times, and the staff retaliated by refusing to
open the recreational yard. (Doc. 4 at 4.) As relief,
Plaintiff sought $5, 500 in monetary damages, an order
directing CCA and LAC to open the recreational yard, and an
injunction requiring LAC staff to follow policies regarding
August 21, 2015, the Magistrate Judge recommended dismissal
of Plaintiff s original Complaint pursuant to Fed.R.Civ.P.
12(b)(6) because his claims for monetary damages against
Defendants were barred by sovereign immunity, and because
Plaintiffs claims for injunctive relief regarding the
recreational yard and LAC's inmate property practices
were moot because of his transfer to NCF. Citing an October
8, 2014 decision of the Lee Circuit Court in Kentucky
dismissing Plaintiffs claims relating to the November 3, 2012
incident "with prejudice[, ]" (Doc. 9-4 at 1), the
Magistrate Judge further concluded that those claims were
barred by the doctrine of res judicata. Plaintiff was granted
limited leave to amend his Complaint for the purpose of
naming additional defendants and supplementing his factual
allegations. On December 3, 2015, this court adopted the
Magistrate Judge's August 21, 2015 Report and
Recommendation in its entirety as its Opinion and Order.
December 15, 2015, Plaintiff timely filed an Amended
Complaint, asserting twenty-seven causes of action and
raising the same claims as his original Complaint against the
same Defendants. In addition, Plaintiff increased the
monetary amount he seeks and advanced legal arguments in
support of his claims. Defendants seek dismissal of Plaintiff
s Amended Complaint, arguing that Plaintiff has not asserted
any new factual allegations, defendants, or theories of
liability to cure the deficiencies identified in his original
Complaint. Plaintiff opposes the motion to dismiss,
contending that his original Complaint set forth sufficient
facts because it incorporated "a [notarized] affidavit
based on personalknowledge." (Doc. 32 at 1.) Plaintiff
also contends that the Amended Complaint raised the amount in
controversy to $22, 000 in order to "resolve" any
issue regarding the court's jurisdiction. Id.
district judge must make a de novo determination of
those portions of a magistrate judge's report and
recommendation to which an objection is made. Fed.R.Civ.P.
72(b); 28 U.S.C. § 636(b)(1); Cullen v.
United States, 194 F.3d 401, 405 (2d Cir. 1999). The
district judge may "accept, reject, or modify, in whole
or in part, the findings or recommendations made by the
magistrate [judge]." 28 U.S.C. § 636(b)(1);
accord Cullen, 194 F.3d at 405. A district judge,
however, is not required to review the factual or legal
conclusions of the magistrate judge as to those portions of a
report and recommendation to which no objections are
addressed. Thomas v. Am, A1A U.S. 140, 150(1985).
five page R & R, the Magistrate Judge carefully analyzed
Plaintiffs Amended Complaint, and determined that Plaintiff
raised the same claims as alleged in his original Complaint
against the same defendants. The Magistrate Judge opined that
the new allegations, set forth in paragraphs one through
seven and thirty-six through fifty, primarily consisted of
legal arguments and conclusory allegations. "While legal
conclusions can provide the framework of a complaint, they
must be supported by factual allegations." Ashcroft
v. Iqbal, 556 U.S. 662, 679 (2009). As noted by the
Magistrate Judge, Plaintiff made no additional factual
allegations that cured the defects in his original Complaint.
addition, the Magistrate Judge noted that Plaintiff sought
increased monetary damages in the Amended Complaint, despite
the court's warning that leave to amend would be denied
to the extent that Plaintiff sought greater damages against
Defendants because no set of facts can overcome their
sovereign immunity. See Pennhurst State Sch. & Hosp.
v. Halderman, 465 U.S. 89, 100 (1984) (noting
that lawsuits in federal court seeking monetary damages
against a state or one of its agencies or departments are
"proscribed by the Eleventh Amendment[.]").
"District courts in this Circuit have routinely
dismissed claims in amended complaints where the court
granted leave to amend for a limited purpose and the
plaintiff filed an amended complaint exceeding the scope of
the permission granted." Palm Beach Strategic
Income, LP v. Salzman, 457 F.App'x 40, 43
(2d Cir. 2012). The Magistrate Judge thus recommended
dismissal of the Amended Complaint for the same reasons
stated in the court's December 3, 2015 Opinion and Order.
Magistrate Judge further recommended that leave to amend be
denied as futile because Plaintiff made no substantive
changes or additions to the original Complaint. Although the
court ordinarily grants self-represented litigants leave to
amend, it need not do so when "better pleading will not
cure" the deficiencies identified in the Complaint.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
Because "there is no reason to think that a valid claim
might be stated, " further leave to amend is not
appropriate in this case. Annis v. Vt.
Prosecutors, 568 F.App'x 9, 10 (2d Cir. 2014).
court agrees with the Magistrate Judge's recommendations
and finds them well-reasoned. The court therefore adopts the
R & R in its entirety.
foregoing reasons, the court hereby ADOPTS the Magistrate
Judge's R & R (Doc. 39) as the court's Opinion
and Order. Defendants' motion to dismiss (Doc. 28) is