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Lizotte v. Menard

United States District Court, D. Vermont

January 25, 2019

Stuart Lizotte, Jr., Plaintiff,
v.
Lisa Menard, Joshua Rutherford, Jesse Rose, Dustin Mone, Mitchell Britton, Defendants.

          REPORT AND RECOMMENDATION (DOCS. 43, 44)

          JOHN M. CONROY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Stuart Lizotte, Jr., a prisoner proceeding pro se, brings this action under 42 U.S.C. § 1983, alleging that he was injured in an incident at Marble Valley Regional Correctional Facility (MVRCF) while he was in the custody of the Vermont Department of Corrections (DOC), in violation of his rights under the Eighth Amendment. (Doc. 6 at 3.) Lizotte names as Defendants former DOC Commissioner Lisa Menard;[1] MVRCF Superintendent Joshua Rutherford; and Correctional Officers (COs) Jesse Rose, Dustin Mone, and Mitchell Britton. (Id. at 1, 3.) Lizotte seeks an unspecified amount of monetary damages for the pain caused to him as a result of the incident and injunctive relief in the form of an order stating that he may no longer reside at MVRCF. (Id. at 3; see Doc. 17 at 1-2.)

         Defendants have filed a Motion for Summary Judgment under Federal Rule of Civil Procedure 56, asserting that there are no disputed issues of material fact and they are entitled to judgment as a matter of law. (Doc. 44; see also Doc. 47.) Specifically, Defendants argue as follows: (1) Lizotte failed to exhaust his administrative remedies, as he did not properly present his claim through the applicable grievance procedure before filing suit (Doc. 44 at 3-9); (2) Lizotte does not allege facts showing that Defendants Menard and Rutherford were personally involved in any of the alleged unlawful conduct (id. at 9-10); (3) Lizotte's claims against Defendants in their official capacity are barred by 42 U.S.C. § 1983 and Vermont's doctrine of sovereign immunity (id. at 11-13); (4) Lizotte's Eighth Amendment claim of excessive use of force does not state a cognizable constitutional claim, as there is no evidence that Defendants acted in a sadistic or malicious manner to cause harm to Lizotte, and the harm caused to Lizotte was not harmful enough or sufficiently serious to reach constitutional magnitude (id. at 13-16); and (5) if Lizotte asserts a claim for punitive damages, the claim fails, as there are no allegations that Defendants' conduct was motivated by an evil motive or intent[2] (id. at 16-17). As required by Local Rule 56(a) and (e), Defendants filed a Statement of Undisputed Material Facts (Doc. 47) and informed Lizotte of the consequences if he failed to file a responsive statement of disputed material facts with attached documentary evidence (Doc. 46). Lizotte has not responded to Defendants' Motion and has not filed a statement of disputed material facts or other documentary evidence as required by Local Rule 56(b).

         For the reasons stated below, I recommend that Defendants' Motion for Summary Judgment (Doc. 44; see also Doc. 47) be GRANTED and Lizotte's claims be DISMISSED.

         Background Facts and Procedure [3]

         On December 28, 2016, Lizotte notified correctional officers at MVRCF that he did not feel safe residing in the General Population Unit at the facility and preferred to return to the Restrictive Housing Unit. (Doc. 6 at 3.) When CO Rose ordered Lizotte to lock into his living unit, Lizotte refused. (Id.; Docs. 47 at 2, ¶ 7; 47-1 at 2.) Rose tried to close the living unit door, but Lizotte pulled back on the door and placed his foot in the doorway to prevent the door from closing. (Docs. 47 at 2, ¶¶ 9-10; 47-1 at 2.) CO Britton observed the situation, and joined Rose in attempting to secure the living unit door, ultimately applying a front kick to the door and entering the unit. (Docs. 47 at 2, ¶¶ 11, 13; 47-1 at 2.) As Lizotte struggled with the officers, refusing to submit despite orders to do so, Rose and Britton brought Lizotte to the ground, at which time Lizotte stopped resisting and became compliant. (Docs. 47 at 2, ¶ 14; 47-1 at 2.) CO Mone also observed the scene, eventually moving into the unit to direct the other two inmates in the cell to stand back and away from the incident, and to assist COs Rose and Britton in gaining control of Lizotte. (Docs. 47 at 3, ¶¶ 15-16; 47-1 at 1.) During the scuffle at the door, Lizotte's foot “slammed in the door jam, ” allegedly causing Lizotte pain, bruising on his ankle, and limited movement. (Doc. 6 at 3.) Once the conflict subsided, Lizotte was handcuffed and escorted to the segregation unit without incident. (Docs. 47 at 3, ¶ 17; 47-1 at 1-2.)

         Immediately thereafter, Registered Nurse Donna Bedard assessed Lizotte, noting that he had a bruise on his left arm, and some tenderness and swelling of his left foot. (Docs. 47 at 3, ¶ 18; 47-2.) Nurse Bedard further noted that Lizotte had no obvious deformities; his weight-bearing ability was only minimally impacted; and he could be treated with ice. (Docs. 47 at 3, ¶ 19; 47-2.)

         On the same date, Lizotte filed a complaint regarding the incident using the DOC's “Informal Complaint & Plan for Resolution Form.” (Docs. 47 at 4, ¶ 27; 47-5.) Two days later, on December 30, 2016, a response to the complaint was delivered to Lizotte. (Docs. 47 at 4, ¶ 27; 47-3 at 2, ¶ 11; 47-5.) The response stated: “This has been referred to the VSP [(the Vermont State Police)].” (Doc. 47-5.) Lizotte did not file any additional DOC grievance paperwork regarding the incident and thus did not complete the DOC grievance appeal process. (Doc. 47-3 at 2, ¶¶ 12-13; see Doc. 47-4.)

         Approximately two months later, on February 22, 2017, Lizotte filed the Complaint in this action. (Doc. 6.) Defendants timely filed their Answer, asserting affirmative defenses pursuant to Federal Rule of Civil Procedure 12, including failure to state a claim upon which relief can be granted, failure to exhaust remedies, and improper venue. (Doc. 16.) Soon thereafter, Lizotte filed a “Motion for Clarification o[f] Defendants['] Answer, ” wherein he reiterated his claims and challenged the validity of Defendants' affirmative defenses. (Doc. 17.) The Court denied Lizotte's Motion without prejudice, finding that Lizotte was not entitled to the requested “clarification” and that, in any event, the Motion was premature given that discovery had not begun. (Doc. 18.) On August 25, 2017, a Stipulated Discovery Schedule/Order was filed, indicating that discovery would be closed by April 16, 2018. (Doc. 22 at 1, ¶ 8.)

         On September 18, 2018, Lizotte filed a motion titled “Motion for Assistance, ” wherein he advised that he had been moved to a housing unit in Pennsylvania, and had been placed in segregation since arriving there. (Doc. 43.) Lizotte requested that he be returned to a Vermont correctional facility so that he could “adequately present [his] case and . . . file any objections in [a] timely manner[].” (Id.) Defendants have not responded to that Motion. Finally, on October 17, 2018, Lizotte filed a notice advising that he again had been moved, this time to a correctional facility in Mississippi, and that his “legal document[s] pertaining to [this case]” had been “lost” during his transport from Pennsylvania. (Doc. 48.)

         Analysis

         Lizotte brings this action under 42 U.S.C. § 1983, which provides a civil claim for damages against “[e]very person who, under color of any statute, ordinance, regulation, custom, or usage, 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). “Section 1983 itself creates no substantive rights; it provides only a procedure for redress for the deprivation of rights established elsewhere.” Thomas v. Roach, 165 F.3d 137, 142 (2d Cir. 1999) (citing Oklahoma City v. Tuttle, 471 U.S. 808, 816 (1985)). To succeed on a § 1983 claim, a plaintiff must establish that: “(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).

         I. Summary Judgment Standard

         A motion for summary judgment should be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In other words, “[t]he moving party is entitled to summary judgment where ‘the plaintiff has failed to come forth with evidence sufficient to permit a reasonable juror to return a verdict in his or her favor' on an essential element of a claim on which the plaintiff bears the burden of proof.” Jean-Laurent v. Wilkerson, 461 Fed.Appx. 18, 22 (2d Cir. 2012) (quoting In re Omnicom Grp., Inc., Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010)).

         In considering a summary judgment motion, the court is “required to resolve all ambiguities and draw all factual inferences in favor of the nonmovant.” Robinson v. Concentra Health Servs., Inc., 781 F.3d 42, 44 (2d Cir. 2015) (internal quotation marks omitted). If the moving party demonstrates that there are no genuine issues of material fact, the burden then shifts to the nonmoving party, who must present “‘significantly probative supporting evidence' of a disputed fact.” Hamlett v. Srivastava, 496 F.Supp.2d 325, 328 (S.D.N.Y. 2007) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Jeffreys v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)). He “cannot defeat summary judgment by relying on the allegations in his complaint, conclusory statements, or mere assertions that affidavits supporting the motion are not credible.” Hamlett, 496 F.Supp.2d at 328 (citing Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996)); see also Dasher v. N.Y.C. Police Dep't, No. 94 CV 3847(SJ), 1999 WL 184118, at *1 (E.D.N.Y. Mar. 18, 1999) (“[T]he court should grant summary judgment where the nonmoving party's evidence is merely colorable, conclusory, speculative, or not significantly probative.”).

         Because Lizotte is proceeding pro se, in addition to resolving all ambiguities and drawing all factual inferences in his favor, the court also “must interpret his papers liberally ‘to raise the strongest arguments that they suggest.'” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015) (quoting Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994)). Still, pro se litigants like Lizotte must meet the “usual requirements of summary judgment, and a pro se party's bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment.” Crenshaw v. Herbert, 445 F.Supp.2d 301, 303 (W.D.N.Y. 2006) (quoting Hernandez v. McGinnis, 272 F.Supp.2d 223, 226 (W.D.N.Y. 2003)); see also Conroy v. N.Y. State Dep't of Corr. Servs., 333 F.3d 88, 94 (2d Cir. 2003) (“[M]ere conclusory allegations, speculation[, ] or conjecture will not avail a party resisting summary judgment.” (first alteration in original) (quoting Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir. 1996))).

         II. Exhaustion

         Defendants first argue that Lizotte's claim is barred because he failed to exhaust his administrative remedies, meaning he failed to properly present his claim through the applicable prison grievance procedure before filing suit. (See Doc. 44 at 3-9.)

         The Prison Litigation Reform Act (PLRA) provides that “[n]o action shall be brought with respect to prison conditions under section 1983 . . ., or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a) (emphasis added); see Hernández v. Coffey, 582 F.3d 303, 305 (2d Cir. 2009). The requirement that a prisoner must exhaust his administrative remedies is “mandatory” and “applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes.” Hernández, 582 F.3d at 305 (quoting Porter v. Nussle, 534 U.S. 516, 524 (2002)). The PLRA requires that exhaustion must be “proper, ” meaning it must “compl[y] with an agency's deadlines and other critical procedural rules.” Woodford v. Ngo, 548 U.S. 81, 90 (2006). In other words, inmates must adhere to the particular grievance procedures set out by the institution where they are incarcerated, which procedures “will vary from system to system and claim to claim.” Jones v. Bock, 549 U.S. 199, 218 (2007) (“[I]t is the prison's requirements, and not the PLRA, that define the boundaries of proper ...


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