Burke v. State of Vermont et al
Filing
25
OPINION AND ORDER Adopting 22 Magistrate Judge's Report and Recommendation granting Defendants' 9 Motion to Dismiss. Plaintiff's 20 Request for Sanctions is denied. Plaintiff is hereby granted thirty (30) days from the date of this Order to file an Amended Complaint. Failure to do so shall result in the dismissal of all claims with prejudice. Signed by Chief Judge Christina Reiss on 12/3/2015. (pac)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
JAMES T. BURKE,
Plaintiff,
v.
STATE OF VERMONT and VERMONT
DEPARTMENT OF CORRECTIONS,
Defendants.
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Case No. 2:15-cv-22
OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 9, 20, & 22)
This matter came before the court for a review of the Magistrate Judge's August
21, 2015 Report and Recommendation ("R & R"), in which he recommended that the
court grant the Fed. R. Civ. P. 12(b)(6) motion to dismiss filed by Defendants State of
Vermont and Vermont Department of Corrections (collectively, "Defendants"). (Doc. 9.)
Plaintiff James T. Burke opposes the motion. Neither party has filed an objection to the
R & R, and the time period to do so has expired.
Plaintiffs 42 U.S.C. § 1983 claims stem from an alleged incident that occurred on
November 3, 2012 at Corrections Corporation of America's ("CCA") Lee Adjustment
Center ("LAC") in Beattyville, Kentucky, where Plaintiff was then serving his criminal
sentence. Plaintiff alleges that certain items of his property were stolen from his cell and
seeks $2,500.00 in compensatory damages, $2,500.00 in punitive damages, and $500.00
in costs. Plaintiff further requests that the court order injunctive relief requiring that
"Defendant at CCA/LAC" be required "to open the Rec. Yard like they use[ d] to do" as
well as an "injunction against CCAILAC Staff' ordering them to follow policies
protecting inmates' property. (Doc. 4 at 18.) Plaintiff additionally requests $5,000.00 in
sanctions because Defendants' attorney allegedly failed to serve him with Defendants'
motion and submitted a "p[e]rjury[-]infested" certificate of service. (Doc. 20 at 1.) On
July 13, 2015, Plaintiffwas transferred from LAC to the Northlake Correctional Facility
in Baldwin, Michigan.
In their motion, Defendants seek dismissal of Plaintiffs Complaint, asserting
Plaintiffs claims for monetary damages against them in their official capacities are
barred by the doctrine of sovereign immunity and because, without a viable federal claim,
this court lacks subject matter jurisdiction over Plaintiffs remaining state law claims. As
an alternate basis for dismissal, Defendants contend that the doctrine of res judicata bars
Plaintiffs Complaint because a final judgment regarding the same subject matter issued
on September 18, 2014 by the Lee Circuit Court in Beattyville, Kentucky, docket number
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13-CI-00067 . Plaintiff opposes the motion to dismiss, identifying twenty-seven causes
of action in his opposition and explaining why dismissal should not be granted.
A district judge must make a de novo determination of those portions of a
magistrate judge's report and recommendation to which an objection is made. Fed. R.
Civ. P. 72(b); 28 U.S.C. § 636(b)(l); Cullen v. United States, 194 F.3d 401, 405 (2d Cir.
1999). The district judge may "accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge." 28 U.S.C. § 636(b )(1 ); accord
Cullen, 194 F .3d at 405. A district judge, however, is not required to review the factual
or legal conclusions of the magistrate judge as to those portions of a report and
recommendation to which no objections are addressed. Thomas v. Arn, 474 U.S. 140,
150 (1985).
In his eighteen pageR & R, the Magistrate Judge carefully analyzed Plaintiffs
claims and determined that they are barred by the doctrine of sovereign immunity such
that Plaintiff cannot obtain money damages from Defendants. In addition, the Magistrate
Judge concluded that res judicata bars Plaintiffs litigation in this matter based on the
final decision issued by the Lee Circuit Court, and because Plaintiffs current action
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On January 5, 2015, the Washington County Superior Court, docket number 538-10-14 Wnsc,
dismissed Plaintiffs small claims case seeking reimbursement for the same items based on the
November 3, 2012 incident on res judicata grounds.
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involves the same subject matter that he raised in that litigation as well as the same
parties or parties in privity. With respect to Plaintiffs claims for injunctive relief, the
Magistrate Judge recommended dismissal because Plaintiff is no longer housed at LAC
and thus those claims are moot. See Prins v. Coughlin, 76 F .3d 504, 506 (2d Cir. 1996)
("It is settled in this Circuit that a transfer from a prison facility moots an action for
injunctive relief against the transferring facility").
The Magistrate Judge further recommended that the court deny Plaintiffs request
for sanctions because Plaintiff failed to comply with Vermont Local Rule 7(a), which
states that "[t]he court will not consider any motion unless it contains the word 'motion'
in the title." In addition to this reasoning, there appears to be no factual or legal basis
upon which sanctions could be awarded. See Fed. R. Civ. P. 11(c)(2) (describing the
procedures that must be followed by a party seeking sanctions).
Although Plaintiff did not object to the Magistrate Judge's recommendation that
dismissal be granted, a brief opportunity to file an Amended Complaint, as recommended
by the Magistrate Judge, is nonetheless consistent with Second Circuit precedent. See
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (advising district court should not
dismiss a pro se filing "without granting leave to amend at least once when a liberal
reading of the complaint gives any indication that a valid claim might be stated")
(internal quotation marks omitted); see also Boykin v. KeyCorp, 521 F.3d 202, 216 (2d
Cir. 2008) (ruling "even after Twombly, dismissal of a prose claim as insufficiently
pleaded is appropriate only in the most unsustainable of cases"). This court therefore
finds the Magistrate Judge's decision well-reasoned and adopts the R & Rand its
recommendations in its entirety.
CONCLUSION
For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's
R & R as the court's Opinion and Order, GRANTS Defendants' motion to dismiss (Doc.
9), and DISMISSES this case without prejudice. Plaintiffs request for sanctions is
hereby DENIED. (Doc. 20.)
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Plaintiff is hereby GRANTED thirty (30) days from the date of this Order to file
an Amended Complaint. Any amended filing shall be entitled "Amended Complaint"
and shall consist of numbered paragraphs containing short and plain factual allegations, a
short and plain statement of each legal claim Plaintiff asserts, and a clear and concise
statement ofthe relief requested. Fed. R .Civ. P. 8(a) (listing required contents of a
pleading that states a claim for relief). In the Amended Complaint, Plaintiff must allege
all claims and name all defendants that Plaintiff intends to include, as the Amended
Complaint will supersede the original Complaint in all respects. Failure to do so shall
result in the dismissal of all claims with prejudice.
SO ORDERED.
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Dated at Burlington, in the District ofVermont, this 3" day ofDecember, 2015.
C~e
United States District Court
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