MURPHY v. CORIZON et al

Filing 50

ORDER denying 49 Motion for Further Reconsideration. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CAROL MURPHY,
Plaintiff
v.
CORIZON, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

1:12-cv-00101-JAW

ORDER DENYING MOTION FOR FURTHER RECONSIDERATION
The Court denies Carol Murphy’s motion to reconsider the Order denying her
previously-filed motion for reconsider.
I.

STATEMENT OF FACTS
A.

Procedural History

On March 23, 2012, Carol Murphy, a prisoner at the Maine Correctional
Center, filed suit in the United States District Court for the District of Tennessee,
alleging that a number of people either at or associated with the prison had violated
her civil rights. Compl. (ECF No. 2). She alleged that one of the Defendants, Scott
Burnheimer, was Superintendent of the Prison. Id. at 3 (listing “Scott Burnheimer
(Superintendent of Prison)” as an additional defendant); id. at 6 (“As soon as I was
able to hold a pen, I filed complaints with [ ] Scott Burnheimer (Superintendent of
the prison)”).

The Tennessee District Court quickly transferred the case to the

District of Maine, where it was filed on March 23, 2012. See Live Database (ECF
No. 4).

No stranger to the United States District Court for the District of Maine, Ms.
Murphy has filed seven lawsuits in the District of Maine and two in the United
States Court of Claims within just over two years. See In re Murphy, 598 F. Supp.
2d 121, 121-22 (D. Me 2009). The Court characterized her multiple lawsuits as
“frivolous, prolix, and contentious nonsense.”

Id. at 122.

Her earlier series of

meritless lawsuits resulted in the Court imposing a filing restriction against her,
and because her particular obsession seemed to be her animals, the filing restriction
was limited to any further lawsuits involving animals. Id. at 124-25.
On May 9, 2012, Scott Burnheimer, the Maine Department of Corrections
(MDOC), and Joseph Ponte moved to dismiss the Complaint for failure to state a
claim. Mot. to Dismiss for Failure to State a Claim of Defs. Joseph Ponte, Scott
Burnheimer and Me. Dep’t of Corrections (ECF No. 15). Ms. Murphy responded on
May 29, 2012. Resp. to MDOC, Ponte & Burnheimer Mot. to Dismiss for 12(b)(6) &
Claimed Immunity (ECF No. 19). Messrs. Burnheimer and Ponte and the MDOC
replied on June 8, 2012. Reply to Resp. to Mot. to Dismiss (ECF No. 21). On July 6,
2012, the Magistrate Judge issued a sixteen-page Recommended Decision, and
recommended that the Court grant the motion to dismiss with prejudice against
Messrs. Ponte and Burnheimer in both their personal and official capacities and
against the MDOC insofar as Ms. Murphy is seeking monetary damages.
Recommended Decision at 16 (ECF No. 27) (Recommended Decision). On July 23,
2012, Ms. Murphy objected to the Recommended Decision.

Resp. to Kravchuk’s

Recommendation to Dismiss Ponte, Burnheimer and Me. Dep’t Corr. (ECF No. 30).

2

On August 22, 2012, the Court adopted the Recommended Decision over Ms.
Murphy’s objection and dismissed with prejudice Defendants Joseph Ponte, Scott
Burnheimer, and the Maine Department of Corrections.

Order Affirming the

Recommended Decision of the Magistrate Judge (ECF No. 39).
On August 29, 2012, Ms. Murphy moved for reconsideration of the Order
dismissing Defendants Ponte, Burnheimer, and the Maine Department of
Corrections. Error by Ct./Recons. (ECF No. 42) (Mot. for Recons.). On September
25, 2012, the Court denied her motion for reconsideration. Order Denying Error by
Ct./Mot. for Recons. (ECF No. 47). On October 3, 2012, Ms. Murphy filed another
motion entitled “Error by the Court on Reconsideration.” (ECF No. 49) (Second Mot.
for Recons.).
B.

The Recommended Decision

In her Recommended Decision, the Magistrate Judge carefully reviewed the
allegations in the Complaint. Recommended Decision at 2-5. She then discussed
the official capacity claims against Mr. Burnheimer, the Superintendent of the
Maine Correctional Center, and observed that since a suit against a state official in
his or her official capacity is a suit against the official’s office, Ms. Murphy’s claim
for money damages against Mr. Burnheimer in his official capacity was subject to
dismissal on sovereign immunity grounds. Id. at 6-7.
Regarding Ms. Murphy’s individual claims against Mr. Burnheimer, the
Magistrate Judge concluded that there was no allegation in the Complaint that
linked Mr. Burnheimer to the imposition of fines and that the allegations did not

3

state a Constitutional claim. Id. at 8-9. Similarly, her charges relating to her
mandatory participation in fire drills did not rise to the level of a Constitutional
violation. Id. at 9. The Magistrate Judge thoroughly analyzed the medical care
claims against Mr. Burnheimer and concluded that he could not be held responsible
under the doctrine of respondeat superior for any of the alleged Constitutional
violations committed by CMS/Corizon. Id. at 11-12. In addition, regarding the
provision of medical care, the Magistrate Judge concluded that Ms. Murphy had not
alleged a sufficient link between Mr. Burnheimer’s role as Superintendent and the
alleged wrongful conduct of his subordinates. Id. at 11-16. Similarly, Ms. Murphy’s
discontent with the grievance process did not rise to the level of a Constitutional
violation. Id. at 13-14.
C.

The Motion for Reconsideration

After the Court affirmed the Magistrate Judge’s Recommended Decision, Ms.
Murphy filed a motion for reconsideration, now asserting that Mr. Burnheimer “is
not and never was a state/public officer.” Mot. for Recons. at 1. She accused the
Court as having gone to “great lengths to protect him in an ‘official’ and ‘individual’
capacity.” Id. She said that Mr. Burnheimer “does not have an Oath of Office” and
his employment is “not based on Legislative authority” and she maintained that his
duties are “not defined directly by law” and his job “may be changed at any time by
the person above him.” Id. She concluded that “[t]his makes [Mr.] Burnheimer a
mere employee.” Id. She insisted that even if Mr. Burnheimer was a state official,
the federal court in Maine is “the correct court to hear a complaint of U.S.

4

Constitutional violation of rights.” Id. at 2. Citing Scheuer v. Rhodes, 416 U.S. 232
(1974), Ms. Murphy demanded that the Court reverse its ruling, saying that
“Woodcock Jr. has lost subject matter jurisdiction on this case unless he reverses
the dismissal of these 3 defendants based on the rulings presented herein and in
previous Plaintiff filings.” Id. at 3-4.
D.

The Second Motion for Reconsideration

In response to the Court’s denial of her motion for reconsideration, Ms.
Murphy filed another motion for reconsideration, saying that “Judge John
Woodcock, Jr. has failed to understand the information submitted by Plaintiff when
he says she provided the Court with no New information and therefore may not
have filed her Error/Reconsideration.” Second Mot. for Recons. at 1. She says that
“Plaintiff’s Error/Reconsideration informed the Court of the NEW INFORMATION
that Maine Secretary of State’s Office verified that Scott Burnheimer is NOT a
State of Maine State Official.” She ends with the question, “On what basis has the
court removed Burnheimer from this case now that they know a Maine Assistant
Attorney General representing Burnheimer lied to the Court and Burnheimer is
NOT a State Official?” Id. at 2.
II.

DISCUSSION
A.

The Motion to Reconsider the Order Denying the Motion to
Reconsider

The District of Maine Local Rules allow for the filing of a motion for
reconsideration.

See D. ME. LOC. R. 7(g).

The standard for reconsideration is

whether the order “was based on a manifest error of fact or law.” D. ME. LOC. R.
5

7(g).

A party may present newly discovered evidence in a motion for

reconsideration; however, the standard for newly discovered evidence is that the
evidence be not only new to the litigant but not previously available. See Palmer v.
Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). “A motion for reconsideration
‘does not provide a vehicle for a party to undo its own procedural failures, and it
certainly does not allow a party to introduce new evidence or advance arguments
that could and should have been presented to the district court prior to the
judgment.’” Fabrica de Muebles J.J. Álvarez, Incorporado v. Inversiones Mendoza,
Inc., 682 F.3d 26, 31 (1st Cir. 2012) (quoting Aybar v. Crispin-Reyes, 118 F.3d 10, 16
(1st Cir. 1997)).
It is questionable whether Ms. Murphy’s motion to reconsider the denial of
her motion to reconsider is proper. Her motion suffers from two serious procedural
defects. First, it was filed in response to the Court’s Order denying her first motion
for reconsideration (ECF No. 47), but in substance it merely restates the arguments
made in her first motion for reconsideration, and is therefore really directed at the
Court’s Order Affirming the Recommended Decision of the Magistrate Judge (ECF
No. 39). Second, Ms. Murphy has not explained why the “New information” about
Mr. Burnheimer’s status was unavailable to her earlier.
Unless an order was “based on a manifest error of fact or law,” D. ME. LOC. R.
7(g), a litigant must reconcile herself to the Court’s ruling for the time being and not
continue to challenge it. After this Court has denied a motion for reconsideration,
the litigant’s ultimate redress is with the Court of Appeals for the First Circuit. Ms.

6

Murphy has threatened to appeal this ruling to the Court of Appeals and she is free
to do so. But she may not repeatedly return to the district court in an effort to
convince the trial court by repetition what she failed to convince the Court initially.
B.

Carol Murphy’s “Mere Employee” Argument

Turning to the merits of her argument, Ms. Murphy is simply wrong in her
premise that a state employee must take an oath of office or have legislativelydefined duties to be entitled to qualified immunity under 42 U.S.C. § 1983.
In support of her argument, she cites a number of state cases that distinguish
between public officials and state employees. First, she cites a series of state cases
that arise out of state constitutions with special requirements for state officers. In
State v. Hawkins, 79 Mont. 506, 257 P. 411 (1927), for example, the Montana
Supreme Court interpreted a provision in the Montana Constitution which
prohibited a state legislator from holding any “civil office” under the state. The
Montana Supreme Court concluded that the position of auditor was not such a civil
office. Id., 79 Mont. at 529, 257 P. at 418. In State ex rel. Kendall v. Cole, 38 Nev.
215, 148 P. 551 (1915), the Supreme Court of Nevada drew a similar conclusion
about the superintendent of the Nevada exhibits at the Panama-Pacific and the
Panama-California expositions. In State ex rel. Newman v. Skinner, 128 Ohio St.
325, 191 N.E. 127 (1934), the Supreme Court of Ohio concluded that a librarian was
not an “officer” within the meaning of a provision of the Ohio State Constitution
dealing with the removal of state officers. By contrast, in 1950, the Supreme Court
of Ohio concluded that members of a county board of elections were public officers

7

within the meaning of the same Ohio Constitutional provision. State ex rel. Milburn
v. Pethtel, 153 Ohio St. 1, 9, 90 N.E.2d 686, 690 (1950). In Dunbar v. Brazoria
County, 224 S.W.2d 738 (Tex. Civ. App. 1949), the Court of Civil Appeals of Texas
concluded that a county road engineer was not a public officer within the meaning
of a provision of the Texas Constitution.
Next, Ms. Murphy cites a Nineteenth Century Iowa case involving a state
statute that criminalized embezzlement by a “public officer.” State v. Spaulding,
102 Iowa 639, 72 N.W. 288 (1897).

In Spaulding, the Supreme Court of Iowa

concluded that the treasurer of the commissioners of pharmacy for the state of Iowa
was not a public officer within the meaning of that criminal statute. 102 Iowa at
651, 72 N.W. at 291.
Finally, she cites a number of cases that address statutory distinctions
between state officials and state employees for purposes of state personnel action.
See State ex rel. Dunn v. Ayers, 112 Mont. 120, 113 P.2d 785 (1941) (concluding that
an assistant superintendent at the Montana Asylum was protected by a statute that
limited the State’s right to remove him); City of Groves v. Ponder, 303 S.W.2d 485,
488 (Tex. Civ. App. 1957) (concluding that a general manager of a water district was
not an officer of the district, but an employee); Application of Barber, 100 N.Y.S.2d
668 (N.Y. Sup. Ct. 1950) (concluding that the chief engineer of a fire department
was not a local officer within the meaning of a New York statute); Francis v. Iowa
Employment Sec. Comm’n, 250 Iowa 1300, 98 N.W.2d 733 (1959) (concluding that a

8

county school superintendent was a public officer within the meaning of an Iowa
statute).
None of these state cases is pertinent to Mr. Burnheimer’s status as a
defendant in Ms. Murphy’s federal claim. In general, state and local officials who
abuse their official power act under color of state law. The governing principle is
that “[m]isuse of power, possessed by virtue of state law and made possible only
because the wrongdoer is clothed with the authority of state law, is action taken
‘under color of’ state law.” Monroe v. Pape, 365 U.S. 167, 184 (1961) (quoting United
States v. Classic, 313 U.S. 299, 326 (1941)); see also Barreto-Rivera v. MedinaVargas, 168 F.3d 42, 48 (1st Cir. 1999) (discussing indicia of state authority). As
the First Circuit explained in Barretto-Rivera, it is possible for a state employee to
act outside the color of state law if pursuing some private vendetta. Id. at 45. Here,
there is no suggestion that Mr. Burnheimer’s involvement with Ms. Murphy was
anything but as Superintendent of the Maine Correctional Center. Ms. Murphy
does not contend, for example, that Mr. Burnheimer took any action relevant to this
case outside prison grounds, off duty, or because of some private vendetta. Instead,
Ms. Murphy insists that Mr. Burnheimer acted as a “mere employee” as opposed to
a “public officer,” a distinction 42 U.S.C. § 1983 does not recognize.1
Ms. Murphy’s confusion on this issue may in part stem from her heavy
reliance on Scheuer v. Rhodes.

In 1984, the United States Supreme Court

abrogated Scheuer for state employees in Davis v. Scherer, 468 U.S. 183 (1984), a
As the Magistrate Judge discussed, federal law recognizes different standards for
supervisory liability, but that is a different issue than the one Ms. Murphy is attempting to raise
here. Recommended Decision at 6-7.
1

9

case that followed Harlow v. Fitzgerald, 457 U.S. 800 (1982), and adopted a
different standard for qualified immunity.
C.

Carol Murphy’s Argument and the Recommended Decision

More to the point, however, the Magistrate Judge’s Recommended Decision
was not grounded on qualified immunity. Her discussion of both the official and
individual claims against Mr. Burnheimer addressed the failure of the claims to
meet legal standards because they did not state constitutional violations against
Mr. Burnheimer either in his official or individual capacity. Although Ms. Murphy
perceives the basis for the Recommended Decision to be qualified immunity, she is
incorrect. Thus, even if her state-law-based argument had merit (which it does not),
it would not call into question the validity of the Recommended Decision.
In any event, she has presented no reason for the Court to revisit its earlier
Order Affirming the Recommended Decision or its Order denying her first Motion
for Reconsideration, and the Court denies her second Motion for Reconsideration.
III.

CONCLUSION
The Court DENIES Carol Murphy’s Error by the Court on Reconsideration

(ECF No. 49).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 24th day of October, 2012

10