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McCain v. United States

United States District Court, D. Vermont

February 14, 2017

ZACK MCCAIN III, Plaintiff,
v.
UNITED STATES OF AMERICA; CORRECTIONS CORPORATION OF AMERICA; EQUAL EMPLOYMENT OPPORTUNITY COMMISSION; STATE OF VERMONT; KOHL'S DEPARTMENT STORES, INC.; COSTCO WHOLESALE CORPORATION; R. BENOIT, ; PATRICK GREENLET; ADAM O'NEIL; FENG K. AN; MARY AHRENS; BART CHAMBERLAIN; ROBERT SANDERS; JACQUELINE A. BERRIEN; MIRO WEINBERGER; CITY OF BURLINGTON; TRAVIS PLOOF; CHRIS O'CONNORS; BILL SORRELL; CHARLES JORDAN; MIKE HENRY; DOWNS RACHLIN AND MARTIN; DAVID MCLEAN; PETER SHUMLIN; MIKE SUNGUARD; sued in their individual and official capacities, Defendants.

OPINION AND ORDER

          WILLIAM K. SESSIONS III DISTRICT COURT JUDGE.

         Plaintiff Zack McCain, proceeding pro se and in forma pauperis, brings this civil rights action alleging discrimination on the basis of his race. In an Opinion and Order dated March 29, 2016, the Court granted several defendants' motions to dismiss and/or for summary judgment. Mr. McCain has now moved for leave to file an interlocutory appeal of the March 29, 2016 ruling. In addition, defendant Costco Wholesale Corporation (“Costco”) has moved to clarify whether the Opinion and Order dismissed Defendant Mary Ahrens Vadasz from the case. Also pending before the Court are several new motions to dismiss.

         For the reasons set forth below, defendants' motions are each granted with the exception of the motion to dismiss for lack of proper service filed by defendants Greenlet and Adam O'Neil, which is denied. Mr. McCain's motion for leave to file an interlocutory appeal and for a certificate of appealability, or in the alternative for reconsideration, is also denied.

         I. General Factual Background

         Mr. McCain claims that he has been unable to find or maintain employment because of his criminal record and his race. The Second Amended Complaint is brought against a host of defendants, including potential employers, government actors, and a private prison company. Mr. McCain's legal claims assert various acts of discrimination, retaliation, and conspiracy.

         In its most recent Opinion and Order, the Court dismissed several defendants on the basis of motions filed under Rules 12 and 56 of the Federal Rules of Civil Procedure. The reasons for those dismissals, as set forth in the Court's 33-page ruling, were varied, but centered mainly on Mr. McCain's failure to state plausible claims of conspiracy to incarcerate African Americans, Thirteenth Amendment violations, discrimination, and retaliation.

         II. Motion for Interlocutory Appeal

         Mr. McCain now seeks leave to file an interlocutory appeal of the Court's March 29, 2016 ruling. Title 28, Section 1292(b) provides for certification of an order for interlocutory appeal when the court determines: “(1) that such order involves a controlling question of law (2) as to which there is a substantial ground for difference of opinion and (3) that an immediate appeal from [that] order may materially advance the ultimate termination of the litigation.” 28 U.S.C. § 1292(b). “These three prerequisites create a significant hurdle to certification, and the barrier is only elevated by the mandate that section 1292(b) be ‘strictly limited' because ‘only exceptional circumstances [will] justify a departure from the basic policy of postponing appellate review until after the entry of a final judgment.'” McNeil v. Aguilos, 820 F.Supp. 77, 79 (S.D.N.Y. 1993) (Sotomayor, J.) (quoting Klinghoffer v. S. N.C. Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990)); see also In re Ambac Fin. Grp. Sec. Litig., 693 F.Supp.2d 241, 282 (S.D.N.Y. 2010) (noting that certification is only granted in “exceptional circumstances”). The party moving for leave to file an interlocutory appeal has the burden of showing that all three criteria are met. See Casey v. Long Island R.R., 406 F.3d 142, 146 (2d Cir. 2005).

         In this case, the Court applied well-established law in its rulings on the motions to dismiss and for summary judgment. Specifically, the Court applied the standards for pleadings under Rule 12, as well as longstanding law applicable to Mr. McCain's conspiracy, Thirteenth Amendment, discrimination, and related claims. As discussed below, Mr. McCain's current motion does not highlight any controlling question of law as to which there is a substantial ground for difference of opinion, nor any reason why an interlocutory appeal would materially advance the litigation.

         Mr. McCain contends in part that the Court misapplied Thirteenth Amendment law, and in particular the holding in McGarry v. Pallito, 687 F.3d 505 (2d Cir. 2012). McGarry held that a pre-trial detainee may not be compelled to work in the laundry while in prison. 687 F.3d at 511, 514. Mr. McCain claims that McGarry supports his current claim, since his criminal history would have deprived him of the ability to find work, which in turn would have resulted in missed child support payments and incarceration. He argues that “[t]he controlling issue is whether or not requiring the plaintiff to write down inflammatory criminal information onto an employment application, while the State of Vermont threatens him with imprisonment . . . constitutes involuntary servitude.” ECF No. 136 at 11.

         The Court's Opinion and Order distinguished McGarry, concluding, among other things, that there was no allegation of forced or coerced labor by any private defendants, and that the Thirteenth Amendment does not allow a claim for damages against the United States and its agencies. Accordingly, the Court concluded that Mr. McCain's failed to state a plausible claim as required under Rule 12. While he now disagrees with the Court's conclusions, he has not shown any substantial ground for difference of opinion.

         Mr. McCain also alleges errors with respect to his claims under Sections 1981 and 1985. Those claims are based, in part, upon a statement at a job fair that warned convicted felons not to apply for work. Mr. McCain further asserts that there was an unlawful agreement between potential employers and the EEOC. The Court considered and disposed of these claims, and Mr. McCain's disagreement again fails satisfy to the substantial ground requirement of Section 1292(b).

         Moreover, Mr. McCain's motion does not explain why an immediate appeal would materially advance the litigation. In fact, an interlocutory appeal would most likely have the opposite effect, as the remaining defendants would need to wait for the appeal to be decided before going to trial. See, e.g., Patient A v. Vermont Agency of Human Servs., No. 5:14-CV-00206, 2015 WL 8665349, at *2 (D. Vt. Dec. 11, 2015) (“an immediate appeal will greatly delay the litigation because the other claims and the other parties will wait until the matter is returned before proceeding towards trial”).

         Section 1292(b) is intended to provide a “rare exception to the final judgment rule that generally prohibits piecemeal appeals.” Koehler v. The Bank of Bermuda Ltd., 101 F.3d 863, 865 (2d Cir. 1996). In this case, Mr. McCain expresses his disagreement with the Court's conclusions, but has not shown the sort of “exceptional circumstances” required by the statute. In re Ambac Fin. Grp. Sec. Litig., 693 ...


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