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Morales v. Burke

United States District Court, D. Vermont

January 22, 2019

Serendipity Morales, Plaintiff,
v.
Alexander N. Burke, Barry Joseph MacKenzie, Chad Newton, Defendants.

          REPORT AND RECOMMENDATION (DOC. 44) AND ORDER (DOC. 59)

          JOHN M. CONROY UNITED STATES MAGISTRATE JUDGE

         Plaintiff Serendipity Morales, a prisoner proceeding pro se, brings this action under 42 U.S.C. § 1983 against Defendants Chad Newton and Barry Joseph MacKenzie, two former Southern State Correctional Officers, as well as Defendant Alexander Burke, [1] a Bennington County Deputy State's Attorney, all in their individual capacities. (Doc. 19 at 2, ¶ 1.) Morales alleges in her Amended Complaint that, while in the custody of the Vermont Department of Corrections (DOC), she provided legal assistance to five inmates facing pending criminal charges and that, to retaliate for that legal assistance, Burke directed Newton and MacKenzie to assault and batter her in violation of her First Amendment rights and her right to be free of discrimination based on her self-identification as “female, gay, mentally ill, Puerto Rican, and transgender.” (Id. at 2, ¶¶ 1, 5.) Morales seeks monetary damages in the form of compensatory and punitive damages, and any additional relief the Court may deem appropriate. (Id. at 2, ¶ 1; id. at 3-4, ¶¶ 4, 5.)

         Presently before the Court is Newton's Motion for Summary Judgment, [2]which he filed instead of an Answer. (See Doc. 44 at 1.) In the motion, Newton argues that Morales failed to exhaust her administrative remedies, as required by the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. 104-134, § 803(d), 110 Stat. 1321-71 (1996) (codified as 42 U.S.C. § 1997e). (Id. at 5.) Morales opposes Newton's motion. (See generally Doc. 49.) Also pending before the Court is Morales's Motion to Appoint Counsel. (Doc. 59.)

         Concluding that the record contains material questions of fact regarding Morales's efforts to exhaust her administrative remedies, I recommend that Newton's motion for summary judgment be DENIED. (Doc. 44.) Further, for the reasons set forth below, Morale's Motion to Appoint Counsel (Doc. 59) is DENIED.

         Factual and Procedural Background

         The facts in this case are primarily drawn from Morales's Amended Complaint (Doc. 19), and the documents submitted in support of her pleadings. (Docs. 7-1-7-8.) As required at this stage of the proceedings, the Court views the disputed material facts in the light most favorable to Morales.

         I. DOC Offender Grievance System

         Directive 320.01 governs the DOC offender grievance system and was in place during the time relevant to Morales's Complaint. (Doc. 45-1 at 1, ¶¶ 2-4); see also Vt. Dep't of Corr., Agency of Hum. Servs., Directive 320.01, http://corrections.vermont.gov/about/policies/rpd/correctional-services-301-550/301-335-facilities-general/320.01.pdf. Directive 320.01 sets forth a four-tiered process beginning with an inmate submitting “Grievance Form #1, Informal Complaint & Plan for Resolution Form.” (See Doc. 45-1 at 1, ¶ 5); Directive 320.01(7). If a plan to resolve the informal complaint is not agreed upon within 48 hours, the inmate may then proceed to the formal grievance process. See Directive 320.01(7)(a)(vi). The first step of the formal grievance process is filing “Grievance Form #2, Offender/Inmate Grievance Submission Form.” (See Doc. 45-1 at 1, ¶ 6.) The DOC facility staff must then investigate and provide the inmate with a resolution within 20 business days. (Id.); see also Directive 320.01(10)(a)(vii)-(xii). If the inmate is unsatisfied with the resolution, the inmate may then appeal that decision using “Grievance Form #5, Decision Appeal to Corrections Executive” and then, if the inmate remains unsatisfied, he or she may seek relief from the DOC Commissioner through “Grievance Form #7, Decision Appeal to Commissioner.” Directive 320.01(15)(a), (b). There are no further administrative appeals after the DOC Commissioner. Directive 320.01(15)(b)(iiii).

         II. Morales's Grievances Against Newton

         Morales is an inmate in the custody of the DOC. (Doc. 19 at 2, ¶ 1.) She identifies as “female, gay, mentally ill, Puerto Rican, and transgender.” (Id.) Despite lacking a law license or formal legal training, Morales assists other prisoners with their legal proceedings. (Id.) The DOC regulations allow so-called “jailhouse layers” like Morales to communicate with other inmates “as long as the Superintendent or designee knows the [jailhouse lawyer] customarily offers legal advice to other inmates.” See Vt. Dep't of Corr., Agency of Human Servs., Directive 409.05 at 8, ¶ 7(b)(iii) (2010), http://www.doc.state.vt.us/about/policies/rpd /correctional-services-301-550/401-500-programs-security-and-supervision/409-05-inmate-mail-publications-and-audio-video-regulations.

         From approximately December 2015 to January 2016, Morales “assisted five prisoners with respect to having drafted, filed, and litigated pro se pretrial pleadings with respect to charged criminal offenses levied against them by Burke in Bennington Criminal Division.” (Doc. 19 at 2, ¶ 1.) While Morales was providing this legal assistance, she was incarcerated in Marble Valley Regional Correctional Facility. (Id.) At some time in January 2016, she was transferred from Marble Valley Regional Correctional Facility to Southern State Correctional Facility (SSCF), where Defendants Newton and MacKenzie were employed as correctional officers. (Id. at 3, ¶ 3.)

         At approximately the same time that Morales was transferred, Burke filed an information against Morales charging her with six counts of unauthorized practice of law in violation of Vt. Stat. Ann. tit. 4, § 901, and Vermont Administrative Order No. 41, § 2. (Id. at 3-4, ¶ 4); see also In re Morales, 2016 VT 85, 202 Vt. 549, 151 A.3d 333. On August 5, 2016, the Vermont Supreme Court issued an opinion concluding that the multiple counts of unauthorized practice of law were not supported by probable cause and the Supreme Court dismissed the information. In re Morales, 2016 VT 85, ¶ 30. Subsequently, Morales alleges that, on November 8, 2016, Newton and MacKenzie entered Morales's jail cell and assaulted and battered her (see Doc. 7-3), purportedly stating during the attack that “this comes from Alex Burke . . . [t]his is what you get for fucking with his cases.” (Doc. 19 at 4, ¶ 5.)

         Morales asserts that, after the purported assault and battery, she filed several grievances against MacKenzie and Newtown seeking redress. (See Docs. 7-1-7-8.) Specifically, Morales asserts that on November 9, 2016, she filed “Grievance Form #1, Informal Complaint & Plan for Resolution Form, ” asking to meet with a police officer to make a statement against MacKenzie and Newton. (Doc. 7-1.) According to Morales, officials at SSCF did not reply to this grievance, and on November 12, 2016, Morales submitted “Grievance Form #2, Offender/Inmate Grievance Submission Form, ” stating that her first grievance had been received but had not been “signed, dated, and timed” and that she did not receive a timely plan for resolution. (Doc. 7-3.) She also asked again to meet with a police officer to report the alleged assault. (Id.) Morales claims that, on December 20, 2016, she filed “Grievance Form #5, Decision Appeal to Corrections Executive, ” in which she sought appeal of her previous two grievance forms, claiming that the forms had been received but had been not signed, dated, and timed and repeating her request to speak with a police officer. (Doc. 7-5.) Finally, Morales alleges that on January 29, 2017, she appealed her grievances to the DOC Commissioner using “Grievance Form #7, Decision Appeal to Commissioner, ” stating that she had not received a timely response to any of her previous grievances and asking again to meet with a policy officer. (Doc. 7-7.) Morales did not receive a response to this final appeal and, on July 7, 2017, she instituted the present suit in this case. (Doc. 1.)

         Morales has provided the Court with purported copies of the unsigned grievance forms that she submitted. (See Docs. 7-1, 7-3.) Newton challenges Morales's assertions, arguing that the DOC has no record that Morales filed the forms. (Doc. 44 at 6; Doc 45 at 4, ¶ 16.) In support of this argument, Newton relies on the affidavit of David Turner, the DOC's Director of Policy Development and Offender Due Process. (Doc. 45-1.) According to Turner, the DOC maintains a database of grievance appeals that are sent to the executive level and those that are sent to the Commissioner. (Id. at 2, ¶ 9.) After a search of this database, Turner states that “there are no grievance appeals either to the superintendent or to the Commissioner concerning the matters of which [Morales] complains in this lawsuit, ” nor are there paper copies of grievance appeals filed by Morales. (Id. at 2, ΒΆ 10.) In addition, Turner ...


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