McCain v. United States of America et al

Filing 173

OPINION AND ORDER denying 136 Motion for Leave to Appeal; denying 136 Motion for Certificate of Appealability; denying 136 Motion for Reconsideration ; granting 139 Motion to Dismiss for Failure to State a Claim by City of Burlington, Mike Henry, and Miro Wienberger; granting 141 Motion to Dismiss by Shaw's Supermarkets; granting 147 Motion for Clarification by Costco and Mary Ahrens Vadasz, dft Mary Ahrens Vadasz (also listed on the docket as Mary Ahrens) shall be termina ted as a party; granting 153 Motion to Dismiss for Failure to State a Claim by David McLean and William Sorrell; denying 165 Motion to Dismiss for Lack of Proper Service by Patrick Greenlet and Adam O'Neil, USMS shall either confirm that service in this case was proper, or accomplish service in a manner that complies with Federal Rule of Civil Procedure 4(e)(2)(B). Signed by Judge William K. Sessions III on 2/14/2017. (jam)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ZACK MCCAIN III,
Plaintiff,
v.
UNITED STATES OF AMERICA;
CORRECTIONS CORPORATION
OF AMERICA; EQUAL
EMPLOYMENT OPPORTUNITY
COMMISSION; STATE OF
VERMONT; KOHL’S DEPARTMENT
STORES, INC.; COSTCO
WHOLESALE CORPORATION;
R. BENOIT,; PATRICK
GREENLET; ADAM O’NEIL;
FENG K. AN; MARY AHRENS;
BART CHAMBERLAIN; ROBERT
SANDERS; JACQUELINE A.
BERRIEN; MIRO WEINBERGER;
CITY OF BURLINGTON; TRAVIS
PLOOF; CHRIS O’CONNORS;
BILL SORRELL; CHARLES
JORDAN; MIKE HENRY; DOWNS
RACHLIN AND MARTIN; DAVID
MCLEAN; PETER SHUMLIN;
MIKE SUNGUARD; sued in
their individual and
official capacities,
Defendants.

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Case No. 2:14-cv-92

OPINION AND ORDER
Plaintiff Zack McCain, proceeding pro se and in forma
pauperis, brings this civil rights action alleging discrimination
on the basis of his race.

In an Opinion and Order dated March

29, 2016, the Court granted several defendants’ motions to
dismiss and/or for summary judgment.

Mr. McCain has now moved

for leave to file an interlocutory appeal of the March 29, 2016
ruling.

In addition, defendant Costco Wholesale Corporation

(“Costco”) has moved to clarify whether the Opinion and Order
dismissed Defendant Mary Ahrens Vadasz from the case.

Also

pending before the Court are several new motions to dismiss.
For the reasons set forth below, defendants’ motions are
each granted with the exception of the motion to dismiss for lack
of proper service filed by defendants Greenlet and Adam O’Neil,
which is denied.

Mr. McCain’s motion for leave to file an

interlocutory appeal and for a certificate of appealability, or
in the alternative for reconsideration, is also denied.
I.

General Factual Background
Mr. McCain claims that he has been unable to find or

maintain employment because of his criminal record and his race.
The Second Amended Complaint is brought against a host of
defendants, including potential employers, government actors, and
a private prison company.

Mr. McCain’s legal claims assert

various acts of discrimination, retaliation, and conspiracy.
In its most recent Opinion and Order, the Court dismissed
several defendants on the basis of motions filed under Rules 12
and 56 of the Federal Rules of Civil Procedure.

The reasons for

those dismissals, as set forth in the Court’s 33-page ruling,
were varied, but centered mainly on Mr. McCain’s failure to state
plausible claims of conspiracy to incarcerate African Americans,

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Thirteenth Amendment violations, discrimination, and retaliation.
II.

Motion for Interlocutory Appeal
Mr. McCain now seeks leave to file an interlocutory appeal

of the Court’s March 29, 2016 ruling.

Title 28, Section 1292(b)

provides for certification of an order for interlocutory appeal
when the court determines: “(1) that such order involves a
controlling question of law (2) as to which there is a
substantial ground for difference of opinion and (3) that an
immediate appeal from [that] order may materially advance the
ultimate termination of the litigation.”

28 U.S.C. § 1292(b).

“These three prerequisites create a significant hurdle to
certification, and the barrier is only elevated by the mandate
that section 1292(b) be ‘strictly limited’ because ‘only
exceptional circumstances [will] justify a departure from the
basic policy of postponing appellate review until after the entry
of a final judgment.’”

McNeil v. Aguilos, 820 F. Supp. 77, 79

(S.D.N.Y. 1993) (Sotomayor, J.) (quoting Klinghoffer v. S.N.C.
Achille Lauro, 921 F.2d 21, 25 (2d Cir. 1990)); see also In re
Ambac Fin. Grp. Sec. Litig., 693 F. Supp. 2d 241, 282 (S.D.N.Y.
2010) (noting that certification is only granted in “exceptional
circumstances”).

The party moving for leave to file an

interlocutory appeal has the burden of showing that all three
criteria are met.

See Casey v. Long Island R.R., 406 F.3d 142,

146 (2d Cir. 2005).

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In this case, the Court applied well-established law in its
rulings on the motions to dismiss and for summary judgment.
Specifically, the Court applied the standards for pleadings under
Rule 12, as well as longstanding law applicable to Mr. McCain’s
conspiracy, Thirteenth Amendment, discrimination, and related
claims.

As discussed below, Mr. McCain’s current motion does not

highlight any controlling question of law as to which there is a
substantial ground for difference of opinion, nor any reason why
an interlocutory appeal would materially advance the litigation.
Mr. McCain contends in part that the Court misapplied
Thirteenth Amendment law, and in particular the holding in
McGarry v. Pallito, 687 F.3d 505 (2d Cir. 2012).

McGarry held

that a pre-trial detainee may not be compelled to work in the
laundry while in prison.

687 F.3d at 511, 514.

Mr. McCain

claims that McGarry supports his current claim, since his
criminal history would have deprived him of the ability to find
work, which in turn would have resulted in missed child support
payments and incarceration.

He argues that “[t]he controlling

issue is whether or not requiring the plaintiff to write down
inflammatory criminal information onto an employment application,
while the State of Vermont threatens him with imprisonment . . .
constitutes involuntary servitude.”

ECF No. 136 at 11.

The Court’s Opinion and Order distinguished McGarry,
concluding, among other things, that there was no allegation of

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forced or coerced labor by any private defendants, and that the
Thirteenth Amendment does not allow a claim for damages against
the United States and its agencies.

Accordingly, the Court

concluded that Mr. McCain’s failed to state a plausible claim as
required under Rule 12.

While he now disagrees with the Court’s

conclusions, he has not shown any substantial ground for
difference of opinion.
Mr. McCain also alleges errors with respect to his claims
under Sections 1981 and 1985.

Those claims are based, in part,

upon a statement at a job fair that warned convicted felons not
to apply for work.

Mr. McCain further asserts that there was an

unlawful agreement between potential employers and the EEOC.

The

Court considered and disposed of these claims, and Mr. McCain’s
disagreement again fails satisfy to the substantial ground
requirement of Section 1292(b).
Moreover, Mr. McCain’s motion does not explain why an
immediate appeal would materially advance the litigation.

In

fact, an interlocutory appeal would most likely have the opposite
effect, as the remaining defendants would need to wait for the
appeal to be decided before going to trial.

See, e.g., Patient A

v. Vermont Agency of Human Servs., No. 5:14-CV-00206, 2015 WL
8665349, at *2 (D. Vt. Dec. 11, 2015) (“an immediate appeal will
greatly delay the litigation because the other claims and the
other parties will wait until the matter is returned before

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proceeding towards trial”).
Section 1292(b) is intended to provide a “rare exception to
the final judgment rule that generally prohibits piecemeal
appeals.”

Koehler v. The Bank of Bermuda Ltd., 101 F.3d 863, 865

(2d Cir. 1996).

In this case, Mr. McCain expresses his

disagreement with the Court’s conclusions, but has not shown the
sort of “exceptional circumstances” required by the statute. In
re Ambac Fin. Grp. Sec. Litig., 693 F. Supp. 2d at 282.
motion is therefore denied.

His

His request for a certificate of

appealability is correspondingly denied.
In the alternative, McCain asks for reconsideration of the
Court’s prior orders.

As noted by the Second Circuit Court of

Appeals, “[t]he standard for granting a [motion for
reconsideration] is strict, and reconsideration will generally be
denied unless the moving party can point to controlling decisions
or data that the court overlooked-matters, in other words, that
might reasonably be expected to alter the conclusion reached by
the court.”

Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d

Cir. 1995).

“The major grounds justifying reconsideration are an

intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent
manifest injustice.”

Virgin Atl. Airways v. Nat’l Mediation Bd.,

956 F.2d 1245, 1255 (2d Cir. 1992) (quotations omitted).
Mr. McCain has failed to meet this demanding standard for

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reconsideration.

As discussed above, he clearly disagrees with

several of the Court’s conclusions.

Disagreement alone, however,

does not justify reconsideration, and Mr. McCain has not shown a
change in controlling law, new evidence, or the need to correct
clear error or manifest injustice.

His alternative motion for

reconsideration is therefore denied.
III. Motion for Clarification
Defendants Costco and Mary Ahrens Vadasz have moved the
Court to clarify the status of Ms. Vadasz after the Opinion and
Order of March 29, 2016.

Those defendants submit that although

the Court dismissed all of Mr. McCain’s statutory and
constitutional claims against her, the docket lists her as an
active defendant.

Upon review of the Opinion and Order, it is

clear that all claims against Ms. Vadasz were dismissed.

The

motion for clarification is granted, and defendant Mary Ahrens
Vadasz (also listed on the docket as Mary Ahrens) shall be
terminated as a party.
IV.

City of Burlington Defendants’ Motion to Dismiss
The City of Burlington, Mayor Miro Weinberger, and

Burlington Police Officer Mike Henry (“City Defendants”) have
filed a motion to dismiss the claims against them under Federal
Rule of Civil Procedure 12(b)(6).

The motion is unopposed.

Mr. McCain’s claims against the Mayor and Officer Henry
arise out of three separate, but related, incidents.

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In the

first, employees at the law firm of Downs Rachlin and Martin,
which represents defendant Macy’s in this case, asked Mr. McCain
to leave their office.

Mr. McCain alleges that after leaving the

building, he approached Officer Henry and asked about the
legality of being asked to leave private property because of a
pending lawsuit.

Officer Henry reportedly replied, “They don’t

have to give you any reasons, just like my home, if I tell you to
leave, I don’t have to give you no reasons.”

ECF No. 93 at 43.

Mr. McCain claims that Officer Henry’s statement constituted a
City policy to discriminate on the basis of race.
On October 10, 2014, Mr. McCain allegedly spoke personally
with Mayor Weinberger.

The Mayor, like Officer Henry, reportedly

stated his opinion that a private law firm could ask a person to
leave their office when that person has a lawsuit pending against
one of the firm’s clients.

Mr. McCain claims that the Mayor’s

statement constituted acquiescence to race discrimination and
retaliation for filing a lawsuit.
The third incident involved Mr. McCain allegedly entering a
Panera restaurant hoping to apply for employment.

When he saw

Officer Henry questioning an African American man in the entry,
he told a Panera employee that the questioning appeared to be
racist.

The employee allegedly responded that Mr. McCain needed

to order food in order to remain in the restaurant, and later
asked Officer Henry to issue him a no trespass citation.

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Mr.

McCain claims that Officer Henry issued him such a citation “to
stay away from Panera’s for a year.”

ECF No. 93.

With respect to the conversations with Officer Henry and
Mayor Weinberger after the Downs Rachlin and Martin incident, no
plausible claim can arise from their statements.

The Supreme

Court has held that the First Amendment right to free expression
does not give persons the right to enter private property.
Hudgens v. N.L.R.B., 424 U.S. 507, 513-17 (1976).

See

Private

property owners also enjoy a general right to exclude others.
See Dolan v. City of Tigard, 512 U.S. 374, 384 (1994).

While Mr.

McCain also suggests that the Mayor and Officer Henry were
retaliating against him for filing a race discrimination lawsuit
against a Downs Rachlin and Martin client, there is no indication
in his pleading that the defendants knew the lawsuit pertained to
race, or that they were motivated by any sort of discriminatory
animus.
As to the notice of trespass allegedly issued by Officer
Henry, this Court has previously explained that such a notice
“merely informs the recipient that he or she is not to enter onto
certain private property.”

Nolen v. Aldrich Pub. Library, 2013

WL 3967924, at *8 (D. Vt. July 31, 2013).

Moreover, the Vermont

Supreme Court has determined that delivering such a notice is
“not an actionable wrong for which damages may be sought.”
v. Sprague, 2004 WL 5583289, at *1 (Vt. Jan. Term 2004)

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Morse

(unpublished).

Accordingly, Mr. McCain has no valid cause of

action against Officer Henry for delivering, at the request of a
Panera employee, a notice of trespass.
Mr. McCain’s last claim against the City of Burlington is
that it requires renters to show proof of residency in the City,
but does not require the same of permanent residences.

He brings

this claim under the Privileges and Immunities Clause, but
provides no factual context for the claim aside from stating that
renters are required to show rent receipts.

Without any other

factual background, the Court cannot find that he has stated a
plausible claim of unlawful discrimination.

See Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).
The motion to dismiss filed by the City of Burlington, Mayor
Weinberger and Officer Henry is therefore granted.
V.

Shaw’s Supermarkets’ Motion to Dismiss
Mr. McCain claims that he twice applied for work at a Shaw’s

Supermarket in Vermont.

In the course of applying, he was

allegedly told by a General Manager that Shaw’s would not hire
someone with a criminal record.

When Mr. McCain filed a charge

with the EEOC, Shaw’s allegedly requested his social security
number.

Mr. McCain now contends that the request was unnecessary

and retaliatory, as Shaw’s already had his social security number

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from a previous application.

ECF No. 93 at 29 (“Defendant Shaw’s

already had plaintiff[’s] social security number when he
previously applied with them . . . but made such assertion[] to
retaliate against the plaintiff for filing a EEOC charge . . . in
violation of Section 1981 tax clause.”).

Although the pleadings

are not clear, he may also be alleging that the request for his
social security number was discriminatory.
To state a claim of either retaliation or discrimination
under Section 1981, a plaintiff must allege an adverse employment
action.

See Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010).

This Court previously determined, with respect to a similar claim
brought by Mr. McCain against Costco, that merely requesting a
social security number does not constitute an adverse action.
The Court reaches the same conclusion here.

As Mr. McCain has

failed to state a plausible cause of action against Shaw’s, the
motion to dismiss is granted.
VI.

State Defendants’ Motion to Dismiss
The Court previously dismissed claims brought against former

Vermont Governor Peter Shumlin and the State of Vermont.

In the

Second Amended Complaint, Mr. McCain asserts claims against two
other state actors: former Attorney General William Sorrell and
Assistant Attorney General David McLean (“State Defendants”).
The claims against these State Defendants are that they “made
discriminatory statements” and engaged in conduct “during the

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proceedings, on account of race, to further the conspiracy.”
No. 93 at 3.

ECF

The “proceedings” appear to include this

litigation, as Mr. McCain accuses AAG McLean of asserting
Eleventh Amendment immunity here, but not in the McGarry case.
He also accuses AAG McLean of saying, “Zack they got a whole
section for people like you Zack,” thus “classif[ying] the
plaintiff on the basis of race.”

Id. at 48.

Against the former Attorney General, William Sorrell, Mr.
McCain brings a claim of race discrimination, asserting that the
Attorney General failed to take action after receiving notice of
an EEOC cause finding against Costco.

He also alleges that the

Attorney General, together with the federal government and
Governor Shumlin, executed certain arrest and criminal conviction
guidelines “unevenly,” failed to properly regulate the use of
credit and court information by employers, and generally
conspired to deprive Mr. McCain of his constitutional rights.
Id. at 46.
To the extent that Defendants Sorrell and McLean are being
sued in their official capacities for damages, those claims are
barred by the Eleventh Amendment.

The Eleventh Amendment

prohibits suits brought in federal court by citizens against a
state and its agencies, absent a waiver of immunity and consent
to suit by the state or a valid abrogation of constitutional
immunity by Congress.

See, e.g., Puerto Rico Aqueduct & Sewer

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Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 142–47 (1993);
Pennhurst State Sch. and Hosp. v. Halderman, 465 U.S. 89, 97–100
(1984).

The Eleventh Amendment also bars claims for damages

brought against state employees sued in their official
capacities.

See Hafer v. Melo, 502 U.S. 21, 25 (1991);

Pennhurst, 465 U.S. at 102.

Relevant to this case, there has

been no waiver of the State’s sovereign immunity and no
abrogation of that immunity by Congress.

In fact, the Vermont

legislature has specifically preserved the State’s immunity under
the Eleventh Amendment.

See 12 V.S.A. § 5601(g).

As Mr. McCain

does not seek any sort of relief from the former Attorney General
and AAG McLean aside from damages, the claims brought against
them in their official capacities are dismissed.
In their personal capacities, the State Defendants argue for
absolute immunity, noting that their alleged actions each
involved actual or potential litigation.

In determining whether

state officials are entitled to absolute immunity, courts look at
“the nature of the function performed, not the identity of the
actor who performed it.”
(1988).

Forrester v. White, 484 U.S. 219, 229

The Supreme Court has held that state prosecutors are

afforded absolute immunity for all actions arising from conduct
“intimately associated with the judicial phase of the criminal
process.”

Imbler v. Pachtman, 424 U.S. 409, 430 (1976).

13

The

Second Circuit has extended prosecutorial immunity to state
assistant attorneys general defending civil actions against the
state and state employees.

See Barrett v. United States, 798

F.2d 565, 569–70, 572–73 (2d Cir. 1986).

An official seeking

absolute immunity bears the burden of showing that such immunity
is warranted for the function in question.

See Burns v. Reed,

500 U.S. 478, 486 (1991).
In this case, AAG McLean is accused of asserting a
particular defense in litigation against Mr. McCain, while he
chose not to assert that same defense in litigation against a
white pre-trial detainee.

Assuming the truth of this allegation,

AAG McLean’s statements and pleading choices in litigation are
plainly “associated” with the judicial process and entitled to
absolute immunity.

Imbler, 424 U.S. at 430;

Giraldo v. Kessler,

694 F.3d 161, 165 (2d Cir. 2012) (“This immunity attaches to
conduct in court, as well as conduct preliminary to the
initiation of a prosecution and actions apart from the
courtroom.”).

Similarly, choices made by either the Attorney

General or an AAG with respect to enforcement of an EEOC order or
execution of sentencing criteria are entitled to absolute
immunity.

Cf. Shmueli v. City of New York, 424 F.3d 231, 237 (2d

Cir. 2005) (“the initiation and pursuit of a criminal prosecution
are quintessential prosecutorial functions”).

14

And even assuming

that AAG McLean made statements suggesting a racial bias, such
bias does not strip him of his immunity.

Id. at 237 (government

attorney “is shielded from liability for damages for commencing
and pursuing the prosecution,” regardless “of any allegations
that his actions were undertaken with an improper state of
mind”).
As to Mr. McCain’s claims of a conspiracy to deprive him of
his rights, the Court has held previously and restates here that
those claims are highly conclusory and speculative.
they fail to state a plausible cause of action.

As such,

Webb v. Goord,

340 F.3d 105, 110 (2d Cir. 2003) (plaintiff “must provide some
factual basis supporting a meeting of the minds, such that
defendants entered into an agreement, express or tacit, to
achieve the unlawful end”).

For each of these reasons, the

motion to dismiss filed by the State Defendants is granted.
VII. O’Neil and Greenlet Motion to Dismiss
Defendants Adam O’Neil and Patrick Greenlet have moved to
dismiss for failure to timely serve the Second Amended Complaint.
Because Mr. McLean is proceeding pro se and in forma pauperis,
the Court has ordered the United States Marshals Service (“USMS”)
to serve all defendants.

The Second Circuit has held that pro se

litigants proceeding in forma pauperis are entitled to rely on
service by the USMS.

Romandette v. Wheetabix Co., 807 F.2d 309,

15

311 (2d Cir. 1986).

Thus, “[g]ood cause under Rule 4(m) is

established if the fault for failure to serve lies with the U.S.
Marshals.”

Lewal v. Wiley, 29 F. App’x 26, 28 n.2 (2d Cir.

2002); see Stoenescu v. Jablonsky, 162 F.R.D. 268, 270 (S.D.N.Y.
1995).
Defendants O’Neil and Greenlet submit that service in this
case was untimely and failed to comply with Federal Rule of Civil
Procedure 4(e)(2)(B).

Rule 4(e)(2)(B) requires either (1)

delivery of a copy of the summons and the complaint to the
defendant personally, (2) leaving a copy of each at the
individual’s dwelling or usual place of abode with someone of
suitable age who resides there, or (3) delivering a copy of each
to an agent “authorized by appointment or by law” to receive
service of process.

Fed. R. Civ. P. 4(e)(2)(B).

In this case,

the USMS delivered copies of the summons and complaint to the
Chief of Police at the Vergennes Police Department.

It is not

clear to the Court whether the Chief was authorized to accept
service on behalf of his officers in either their official or
individual capacities.

Defendants’ motion suggests that he was

not so authorized.
Because the USMS has been tasked with serving all
defendants, the motion to dismiss Mr. McCain’s claims against
defendants O’Neil and Greenlet is denied.

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The USMS shall either

confirm that service in this case was proper, or accomplish
service in a manner that complies with Federal Rule of Civil
Procedure 4(e)(2)(B).
VIII. Conclusion
For the reasons set forth above, Mr. McCain’s motion for
leave to file an interlocutory appeal, for a certificate of
appealability, or in the alternative for reconsideration (ECF No.
136) is denied; the motion to dismiss filed by the City of
Burlington, Mike Henry, and Miro Weinberger (ECF No. 139) is
granted; the motion to dismiss filed by Shaw’s Supermarkets (ECF
No. 141) is granted; the motion for clarification filed by Costco
and Mary Ahrens Vadasz (ECF No. 147) is granted; the motion to
dismiss filed by defendants David McLean and William Sorrell (ECF
No. 153) is granted; and the motion to dismiss filed by
defendants Patrick Greenlet and Adam O’Neil (ECF No. 165) is
denied.
Dated at Burlington, in the District of Vermont, this 14th
day of February, 2017.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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