Pollard v. Albert et al
Filing
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OPINION AND ORDER granting 1 MOTION for Leave to Proceed in Forma Pauperis; dismissing all claims without prejudice against Daniel Albert. Signed by District Judge J. Garvan Murtha on 6/16/2015. (esb) Text clarified on 6/16/2015 (jlh).
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Monica Pollard,
Plaintiff,
v.
Daniel Albert and
Vermont State Medical
Examiner Agency,
Defendants.
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Case No. 1:15-cv-64
OPINION AND ORDER
(Doc. 1)
Pro se plaintiff Monica Pollard moves to proceed in forma
pauperis against Defendants Daniel Albert (“Albert”) and the
Vermont State Medical Examiner Agency (“State Medical Examiner”),
alleging constitutional rights violations, professional negligence,
and legal malpractice (Doc. 1-2.)
Because the financial affidavit
in support of the motion meets the requirements of 28 U.S.C.
§ 1915(a), the motion for leave to proceed in forma pauperis is
GRANTED.
Discussion
I.
Factual Background and Procedural History
Mr. Pollard’s claims arise from events leading to a Vermont
state court conviction for manslaughter,1 for which he served a
term of imprisonment from 1985 until his release in 2000.
1
(Doc.
The Vermont Supreme Court opinion states Pollard pled
guilty to second degree murder. State v. Pollard, 657 A.2d 185,
200 (Vt. 1995).
1-2 at 2.)
A review of the case law history indicates on July 9,
1985, Mr. Pollard “fatally stabbed a man in a department store in
St. Albans.” State v. Pollard, 657 A.2d 185, 187 (Vt. 1995).
Initially, Pollard was sentenced to a term of fifty years to life
imprisonment.
Id.
However, in 1995 the Vermont Supreme Court
vacated his plea, conviction, and sentence, concluding the
evidence presented at his mental competency hearing prior to
entering a guilty plea did not satisfy the minimum due process
standard.
Id. at 205-06.
In the proposed Complaint before the Court, Pollard alleges
the victim, Steve Lawrence, was treated for his injuries at Krebs
Memorial Hospital in St. Albans, Vermont (“the Hospital”).
1-2 at 4.)
(Doc.
He alleges physicians at the Hospital committed
involuntary manslaughter and are responsible for Lawrence’s death
because they performed a splenectomy “instead of immediately
attending to and treating the bleeding heart and wounds.”
Id. at
4-5. Pollard claims that, by failing to perform cardiothoracic
surgery first, Lawrence unnecessarily bled to death.
Id. at 5.
He alleges the Hospital’s grossly negligent treatment of Lawrence
constituted an intervening cause that contributed to Lawrence’s
death, and therefore, Pollard should not have been convicted of
murder.
Id. at 18.
Pollard brings suit against Defendants in their official
capacities, claiming the State Medical Examiner “should have
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charged the Krebs Memorial Hospital Surgeons for the death of
Steve Lawrence” due to their alleged gross negligence, and the
State Medical Examiner “should have recognized the causes of
Steve Lawrence’s death,” including the “useless [s]plenectomy.”
Id. at 21-22.
Pollard alleges this act or omission constitutes
professional negligence.
Attorney Daniel Albert (a court-appointed public defender)
represented Pollard during the criminal prosecution.
Id. at 19.
Pollard claims Albert was ineffective as his counsel and
negligent in failing to procure medical expert witness testimony
to challenge the cause of death listed by the State Medical
Examiner.
Id. at 20.
Pollard further alleges the Defendants are liable under
42 U.S.C. § 1983 for violating his Fifth, Sixth, and Fourteenth
Amendment rights.
Id. at 2, 21.
He seeks $41 million in
compensatory and punitive damages.
II.
Id. at 21.
Section 1915(e)(2)(B) Review
Pro se filings are “to be liberally construed, and a pro se
complaint, however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by lawyers.”
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks and citations omitted).
A
district court shall dismiss a
case, however, if it determines the complaint “(i) is frivolous
or malicious; (ii) fails to state a claim on which relief may be
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granted; or (iii) seeks monetary relief against a defendant who
is immune from such relief.”
28 U.S.C. § 1915(e)(2)(B).
A court also has inherent authority to dismiss a case that
presents no meritorious issue.
See Fitzgerald v. First E.
Seventh St. Tenants Corp., 221 F.3d 362, 363 (2d Cir. 2000)
(district court may dismiss frivolous complaint sua sponte even
where plaintiff paid filing fee); Pillay v. INS, 45 F.3d 14, 17
(2d Cir. 1995) (court has “inherent authority” to dismiss
petition that “presents no arguably meritorious issue”).
The proposed Complaint fails to state any viable legal
claims against attorney Albert.
As to the § 1983 claims, a
court-appointed attorney “does not act under color of state law
when performing a lawyer’s traditional functions as counsel to a
defendant in a criminal proceeding” and is not subject to § 1983
liability for such actions.
Polk Cnty. v. Dodson, 454 U.S. 312,
325 (1981); accord Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d
Cir. 1997).
Furthermore, absent the state’s consent to be sued or an
express or statutory waiver of immunity, the Eleventh Amendment
bars suits in federal court for damages against state officials
acting in their official capacities.
Woods v. Rondout Valley
Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006).
As to Pollard’s common law negligence claims against Albert,
under the Vermont Tort Claims Act, Vt. Stat. Ann. tit. 12,
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§§ 5601-06, only the State, not its employees, may be held liable
for injuries caused by negligence.
Vt. Stat. Ann. tit. 12,
§ 5602; see also Bradshaw v. Joseph, 666 A.2d 1175, 1178 (Vt.
1995) (holding that “public defenders are state employees under
Vermont law” and the state Tort Claims Act provides the exclusive
remedy for claims alleging professional negligence against public
defenders).
Additionally, common law negligence claims against the State
may only be brought in Vermont’s superior courts.
Vt. Stat. Ann.
tit. 12, § 5601; see also Edwards v. Vt. Dep’t of Corr., No.
2:06-CV-34, 2007 WL 2332414, at *4 (D. Vt. Aug. 13, 2007)
(dismissing state common law negligence claims against state
agency and its employees).
Accordingly, this Court lacks subject matter jurisdiction
over Pollard’s claims against Albert.
District courts generally should not dismiss pro se claims
without granting leave to amend.
F.3d 99, 112 (2d Cir. 2000).
See Cuoco v. Moritsugu, 222
The Court finds, however, that
granting leave to amend the proposed claims against Albert would
be futile.
See id.
(“The problem with [plaintiff’s] causes of
action is substantive; better pleading will not cure it.
Repleading would thus be futile.”)
Therefore, all claims against
Albert are DISMISSED WITHOUT PREJUDICE.
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Pollard’s § 1983 and state law professional negligence
claims against the Vermont State Medical Examiner Agency are not
addressed in this Order.
III. Standard Order Regarding Remaining Claims
The following paragraphs are intended to assist Pollard by
identifying certain requirements of this Court.
Failure to
comply with these requirements may result in dismissal of the
complaint.
Because Pollard is not represented by an attorney, he is
reminded that the Federal Rules of Civil Procedure require him to
mail to the attorneys for the Defendant a true copy of anything
he sends to the Court.
Failure to so “serve” Defendant may
result in dismissal of this case or other penalties.
Anything
filed with the Court should specifically state that it has been
sent to the lawyers for the Defendant.
certificate of service.
This is called a
Pollard should keep a true copy of
everything he sends to the Defendant or the Court.
Each party shall keep the Court apprised of a current
address at all times while the action is pending.
Notice of any
change of address must be filed promptly with the Court and
served on other parties.
As this case proceeds, it is possible the Vermont State
Medical Exminer Agency may file a motion for summary judgment.
The Second Circuit requires a pro se litigant be provided notice
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“of the nature and consequences of a summary judgment motion.”
Vital v. Interfaith Med. Ctr., 168 F.3d 615, 621 (2d Cir. 1999);
see also Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642
(2d Cir. 1988).
Accordingly, this Court’s Local Rules require
Defendant to serve a pro se litigant with such a notice.
L.R. § 61(e).
D. Vt.
A motion for summary judgment made by a defendant
under Rule 56 of the Federal Rules of Civil Procedure is a
request for a judgment in the defendant’s favor without a trial.
This motion will set forth the facts the defendant contends are
not reasonably subject to dispute and that entitle it to judgment
as a matter of law.
Failure to contradict those factual
assertions may result in the entry of summary judgment against
the Plaintiff.
To contradict or oppose a defendant’s motion for summary
judgment, a plaintiff must show proof of his claims.
this in one or more of the following ways.
He may do
Most typically, a
plaintiff may file and serve one or more affidavits or
declarations setting forth the facts that would be admissible in
evidence that he or she believes prove his or her claims or
counter the defendant’s assertions.
The person who signs each
affidavit must have personal knowledge of the facts stated within
the affidavit.
Alternatively, a plaintiff may rely on statements
made under penalty of perjury in the complaint if the complaint
shows the plaintiff has personal knowledge of the matters stated,
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and if the plaintiff calls to the Court’s attention those parts
of the complaint upon which he or she relies to oppose the
defendant’s motion.
A plaintiff may also rely upon written
records, but must prove that the records are what he claims they
are.
Finally, a plaintiff may rely on all or any part of
deposition transcripts, answers to interrogatories, or admissions
obtained in the proceeding.
If there is a good reason why the
necessary facts are not available to the plaintiff at the time
required to oppose a summary judgment motion, the Court will
consider a request to delay consideration of the defendant’s
motion.
Pollard should always file a response to a motion by the
Defendant.
In particular, in the event the Defendant files a
motion for summary judgment as discussed above, or moves to
dismiss the complaint, failure to respond may result in dismissal
of the case.
CONCLUSION
For the reasons set forth above, upon conducting the review
required under 28 U.S.C. § 1915(a)(1), Pollard’s motion to
proceed in forma pauperis (Doc. 1) is GRANTED.
Pollard may file, and the Clerk of the Court shall accept,
his Complaint without prepayment of the required fees, and he
shall not be required to pay the fees for service of the
Complaint.
Service of process shall be undertaken under 28
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U.S.C. § 1915(d), and if necessary, shall be effected by the U.S.
Marshals Service.
See Fed. R. Civ. P. 4(c)(3); 28 U.S.C. §
1915(d).
All claims against Daniel Albert are DISMISSED WITHOUT
PREJUDICE under 28 U.S.C. § 1915(e)(2)(B).
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 16th
day of June, 2015.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge
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