Burke v. State of Vermont et al

Filing 40

OPINION AND ORDER Adopting 39 Magistrate Judge's REPORT AND RECOMMENDATION granting Defendants' 28 MOTION to Dismiss for Failure to State a Claim, with prejudice, and without leave to amend. Signed by Chief Judge Christina Reiss on 6/15/2016. (pac)

U.S. DISTRICT COURT
DtSTRtCT OF VERMONT
FILED
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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2016 JUN 15 AH 11:57
CLERK

BY

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DEPUT't' CLERK

Case No. 2:15-cv-22

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S
REPORT AND RECOMMENDATION
(Docs. 28, 39)
This matter came before the court for a review of the Magistrate Judge's March
28, 2016 Report and Recommendation ("R & R") (Doc. 39), wherein the Magistrate
Judge recommends that the court grant the motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6) filed by the State ofVermont and the Vermont Department of Corrections
(collectively, "Defendants"). (Doc. 28.) No party has filed an objection to the R & R,
and the deadline for doing so passed on April 11, 2016. The court took this matter under
advisement thereafter.
At all times relevant to the original Complaint and the Amended Complaint,
Plaintiff James T. Burke was an inmate in the Defendants' custody and control and
incarcerated at Corrections Corporation of America's ("CCA") Lee Adjustment Center
("LAC") in Beattyville, Kentucky. On July 13, 2015, Plaintiff was transferred from LAC
to the Northlake Correctional Facility ("NCF") in Baldwin, Michigan.
On March 5, 2015, prior to his transfer, Plaintiff filed his original Complaint, in
which he alleged claims arising from two separate incidents at LAC. In the first incident,
on November 3, 2012, another Vermont inmate at LAC allegedly stole or destroyed
approximately $800 of Plaintiffs personal property. Plaintiff claims that LAC staff was

negligent in allowing the theft to occur, and that CCA's subsequent offer to reimburse
him $50 violated the Equal Protection Clause because it offered more money to
reimburse other inmates whose property was stolen or damaged. In the second incident,
on January 22, 2015, LAC staff allegedly lost Plaintiffs personal property following a
search ofhis cell. Plaintiff further alleged that LAC had been "forced" to place a staff
member in each housing unit at all times, and the staff retaliated by refusing to open the
recreational yard. (Doc. 4 at 4.) As relief, Plaintiff sought $5,500 in monetary damages,
an order directing CCA and LAC to open the recreational yard, and an injunction
requiring LAC staff to follow policies regarding inmate property.
On August 21, 2015, the Magistrate Judge recommended dismissal of Plaintiffs
original Complaint pursuant to Fed. R. Civ. P. 12(b)(6) because his claims for monetary
damages against Defendants were barred by sovereign immunity, and because Plaintiffs
claims for injunctive relief regarding the recreational yard and LAC's inmate property
practices were moot because of his transfer to NCF. Citing an October 8, 2014 decision
of the Lee Circuit Court in Kentucky dismissing Plaintiffs claims relating to the
November 3, 2012 incident "with prejudice[,]" (Doc. 9-4 at 1), the Magistrate Judge
further concluded that those claims were barred by the doctrine of res judicata. Plaintiff
was granted limited leave to amend his Complaint for the purpose of naming additional
defendants and supplementing his factual allegations. On December 3, 2015, this court
adopted the Magistrate Judge's August 21, 2015 Report and Recommendation in its
entirety as its Opinion and Order.
On December 15, 2015, Plaintifftimely filed an Amended Complaint, asserting
twenty-seven causes of action and raising the same claims as his original Complaint
against the same Defendants. In addition, Plaintiff increased the monetary amount he
seeks and advanced legal arguments in support of his claims. Defendants seek dismissal
of Plaintiffs Amended Complaint, arguing that Plaintiff has not asserted any new factual
allegations, defendants, or theories of liability to cure the deficiencies identified in his
original Complaint. Plaintiff opposes the motion to dismiss, contending that his original
Complaint set forth sufficient facts because it incorporated "a [notarized] affidavit based
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on personal[]knowledge." (Doc. 32 at 1.) Plaintiff also contends that the Amended
Complaint raised the amount in controversy to $22,000 in order to "resolve" any issue
regarding the court's jurisdiction. !d.
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)(l); 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 five pageR & R, the Magistrate Judge carefully analyzed Plaintiffs
Amended Complaint, and determined that Plaintiff raised the same claims as alleged in
his original Complaint against the same defendants. The Magistrate Judge opined that
the new allegations, set forth in paragraphs one through seven and thirty-six through fifty,
primarily consisted of legal arguments and conclusory allegations. 1 "While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). As noted by the Magistrate
Judge, Plaintiff made no additional factual allegations that cured the defects in his
original Complaint.
In addition, the Magistrate Judge noted that Plaintiff sought increased monetary
damages in the Amended Complaint, despite the court's warning that leave to amend
would be denied to the extent that Plaintiff sought greater damages against Defendants
because no set of facts can overcome their sovereign immunity. See Pennhurst State Sch.
& Hosp. v. Halderman, 465 U.S. 89, 100 (1984) (noting that lawsuits in federal court
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Paragraphs thirty-nine through fifty of the Amended Complaint are under the heading
"Argument[,]" in which Plaintiff cites statutes and cases in support of his claims. (Doc. 26 at
15.)
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seeking monetary damages against a state or one of its agencies or departments are
"proscribed by the Eleventh Amendment[.]"). "District courts in this Circuit have
routinely dismissed claims in amended complaints where the court granted leave to
amend for a limited purpose and the plaintiff filed an amended complaint exceeding the
scope of the permission granted." Palm Beach Strategic Income, LP v. Salzman, 457 F.
App'x 40, 43 (2d Cir. 2012). The Magistrate Judge thus recommended dismissal of the
Amended Complaint for the same reasons stated in the court's December 3, 2015
Opinion and Order.
The Magistrate Judge further recommended that leave to amend be denied as futile
because Plaintiff made no substantive changes or additions to the original Complaint.
Although the court ordinarily grants self-represented litigants leave to amend, it need not
do so when "better pleading will not cure" the deficiencies identified in the Complaint.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000). Because "there is no reason to
think that a valid claim might be stated," further leave to amend is not appropriate in this
case. Annis v. Vt. Prosecutors, 568 F. App'x 9, 10 (2d Cir. 2014).
The court agrees with the Magistrate Judge's recommendations and finds them
well-reasoned. The court therefore adopts the R & R in its entirety.
CONCLUSION

For the foregoing reasons, the court hereby ADOPTS the Magistrate Judge's
R & R (Doc. 39) as the court's Opinion and Order. Defendants' motion to dismiss
(Doc. 28) is GRANTED. Plaintiffs Amended Complaint is therefore DISMISSED.
SO ORDERED.
Dated at Burlington, in the District of Vermont, this

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IS' day of June, 2016.

Chris~==

United States District Court

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