United States District Court, D. Vermont
OPINION AND ORDER
WILLIAM K. SESSIONS III DISTRICT COURT JUDGE.
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.
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.
General Factual Background
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
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.
Motion for Interlocutory Appeal
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).
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
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.
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.
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).
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
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 ...