United States District Court, D. Vermont
RULING ON MOTIONS TO DISMISS, FOR RECONSIDERATION,
AND FOR EXTENSION OF TIME (DOCS. 12, 22, 24)
Honorable J. Garvan Murtha United States District Judge.
Chinnici, a Vermont inmate proceeding pro se, was granted
leave to proceed in forma pauperis in October 2016 (Doc. 2)
and his complaint against Defendants Centurion of Vermont,
LLC and Cody Baker, in his official capacity as a
Correctional Officer (“CO”) at Marble Valley
Regional Correctional Facility (“MVRCF”), was
thereafter filed (Doc. 4). In December, Centurion of Vermont
filed an answer (Doc. 9) and Defendant Baker filed a motion
to dismiss (Doc. 12). In January, Chinnici filed and the
Court denied a Request for Counsel. (Docs. 13, 15.) Chinnici
has since opposed the motion to dismiss (Doc. 18) and filed
motions to reconsider the order denying appointment of
counsel and for an extension of time to comply with discovery
requests (Docs. 22, 24). Baker filed a reply in further
support of his motion to dismiss. (Doc. 19.) For the reasons
that follow, Baker's motion to dismiss is GRANTED,
Chinnici's motion for reconsideration is DENIED without
prejudice, and Chinnici's motion for extension of time is
DENIED as moot.
following facts are assumed to be true for purposes of the
pending motions and are gleaned from the complaint. On March
30, 2016, medical staff at Marble Valley Regional
Correctional Facility advised Chinnici to apply a warm
compress to his left leg due to bruising. Medical staff
placed a wet towel in a small bag and instructed CO Baker to
heat it in the microwave. CO Baker did so for a period of
three minutes. As a result of nerve damage, Chinnici does not
have feeling in parts of his legs. When Chinnici used the
compress, he did not feel it burning his skin. He received
third degree burns, blisters, and his tattoo was
“burned completely through.” (Doc. 4 at 3.)
seeks the sum of $200, 000 for his pain and suffering,
scarring, and cost of getting the scars removed and having
the tattoo redone. (Doc. 4 at 3.) He also requests the Court
grant leave to amend. Id.
Motion to Dismiss
CO Baker has moved to dismiss Chinnici's claim under
Federal Rule of Civil Procedure 12(b)(6) for failure to state
a claim upon which relief can be granted, a motion that tests
the legal rather than the factual sufficiency of a complaint,
see, e.g., Sims v. Ortiz, 230 F.3d 14, 20
(2d Cir. 2000), he argues he is immune from suit. (Doc. 12 at
3-5.) The Eleventh Amendment of the United States
Constitution prohibits a citizen from bringing a suit against
his or her own state or its agencies in federal court, absent
a waiver of immunity and consent to suit by the state or a
valid abrogation of constitutional immunity by Congress.
Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 72-73
(2000); Puerto Rico Aqueduct & Sewer Auth. v. Metcalf
& Eddy, Inc., 506 U.S. 139, 142-47 (1993);
Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 97-100 (1984). “A claim against a government
officer in his official capacity is, and should be treated
as, a claim against the entity that employs the
officer.” Mathie v. Fries, 121 F.3d 808, 818
(2d Cir. 1997). Sovereign immunity is a threshold issue that
must be addressed prior to considering dismissal for failure
to state a claim. See Rhulen Agency, Inc. v. Ala. Ins.
Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990).
Accordingly, the Court construes the motion to dismiss as one
under Federal Rule of Civil Procedure 12(b)(1) for lack of
subject matter jurisdiction.
should grant a Rule 12(b)(1) motion to dismiss if it is not
authorized by statute or the Constitution to adjudicate the
plaintiff's claims. See Makarova v. United
States, 201 F.3d 110, 113 (2d Cir. 2000). The party
asserting subject matter jurisdiction has the burden of
proving its existence by a preponderance of the evidence.
Id. In determining whether subject matter
jurisdiction exists, the court may look to evidence outside
the complaint. Id. (citing Kamen v. Am. Tel.
& Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986)). In
reviewing the complaint, the Court notes that because the
plaintiff is proceeding pro se, it must construe his
submissions liberally and interpret them to raise the
strongest arguments they suggest. See Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
While pro se litigants are afforded a liberal pleading
standard, Erickson v. Pardus, 551 U.S. 89, 94
(2007), nonetheless, a pro se litigant is not exempt from
compliance with relevant rules of procedural and substantive
law, Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir.
42 U.S.C. § 1983, a claimant may bring suit against any
“person who, under color of any statute . . . of any
State . . . subjects, or causes to be subjected, any citizen
. . . to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws.” 42
U.S.C. § 1983. “The purpose of § 1983 is to
deter state actors from using the badge of their authority to
deprive individuals of their federally guaranteed rights and
to provide relief to victims if such deterrence fails.”
Wyatt v. Cole, 504 U.S. 158, 161 (1992). A plaintiff
asserting a § 1983 claim must demonstrate: “(1)
the defendant acted under color of state law; and (2) as a
result of the defendant's actions, the plaintiff suffered
a denial of her federal statutory rights, or her
constitutional rights or privileges.” Annis v.
County of Westchester, 136 F.3d 239, 245 (2d Cir. 1998).
Section 1983, however, creates no substantive rights;
“it provides only a procedure for redress for the
deprivation of rights established elsewhere.”
Thompson v. Pallito, 949 F.Supp.2d 558, 569 (D. Vt.
2013) (citation omitted). The Court construes Chinnici's
claim to be a violation of his rights to be free of cruel and
unusual punishment and for proper medical care under the
Eighth Amendment to the Constitution. See Doc 18
State of Vermont has preserved its immunity under the
Eleventh Amendment by statute, thereby rendering Vermont
state agencies immune from suit. Vt. Stat. Ann. tit. 12,
§ 5601(g). “A claim against a government officer
in his official capacity is, and should be treated as, a
claim against the entity that employs the officer.”
Mathie v. Fries, 121 F.3d 808, 818 (2d Cir. 1997).
The Eleventh Amendment pertains only to official capacity
claims, see Kentucky v. Graham, 472 U.S. 159, 169
(1985); individual capacity claims are not protected by the
Eleventh Amendment, Hafer v. Melo, 502 U.S. 21,
Baker moves to dismiss Chinnici's claims against him in
his official capacity arguing the Vermont Tort Claims Act, 12
Vt. Stat. Ann. §§ 5601-5606, and Eleventh Amendment
of the United States Constitution bar the § 1983 claim
against him. (Doc. 12 at 3-5.)
Court finds Defendant Baker--a Correctional Officer at Marble
Valley Regional Correctional Facility--was acting as a state
official when he performed the action of heating the wet
compress according to the medical staff's directive on
March 30, 2016. Accordingly, the constitutional claim for
damages against CO Baker in his official
capacity is dismissed because it constitutes a
claim against the State of Vermont and is barred by Eleventh
Amendment sovereign immunity. See Darcy v. Lippman,
356 F. App'x 434, 437 (2d Cir. 2009) (“The ...