Casey et al v. Pallito et al

Filing 68

ORDER ADOPTING IN PART 58 REPORT AND RECOMMENDATION ; granting in part and denying in part 52 Motion to Dismiss for Failure to State a Claim; 56 MOTION for Appointment of Counsel is DENIED. All claims except those related to termination of plaintiff's employment are dismissed. Signed by Chief Judge Christina Reiss on 12/18/2013. (law)

U.S. DISi;:: ~.
DISTRICT
!;:
I

UNITED STATES DISTRICT COURT
FOR THE

DISTRICT OF VERMONT

SHANE EDWARD CASEY,
Plaintiff,
v.
ANDREW PALL ITO, GREG HALE,
DAN DAVIES, and KORY STONE,
Defendants.

)

)

)

)
)
)
)
)

)

2013 DEC 18 PH I: 00

Case No. 5:12-cv-284

OPINION AND ORDER ADOPTING IN PART MAGISTRATE JUDGE'S

REPORT AND RECOMMENDATION

(Docs. 52 & 58)

This matter came before the court on the objection of Plaintiff Shane Edward
Casey (Doc. 63) to the Magistrate Judge's Report and Recommendation ("R & R") filed
on July 25, 2013. (Doc. 58.) In this action, Plaintiffs 42 U.S.C. § 1983 complaint
alleges that Defendants Andrew Pallito, Greg Hale, Dan Davies, and Kory Stone violated
his rights under the First, Eighth, and Fourteenth Amendments, as well as the Religious
Land Use and Institutionalized Persons Act of2000 ("RLUIPA') Plaintiff also requests
appointment of counsel under 28 U.S.C. § 1915(e)(I). In the R & R, the Magistrate
Judge recommends granting in part and denying in part Defendants' motion to dismiss
under Fed. R. Civ. P. 12(b)(6) and also recommends denying Plaintiffs motion for
appointment of counsel.
Plaintiff is self-represented. Defendants, all of whom are current Vermont
Department of Corrections ("DOC") employees, are represented by Vermont Assistant
Attorney General David R. McLean.

I.

Factual Background.
Except where noted, the parties do not dispute the Magistrate Judge's recitation of

the operative facts, which are summarized herein. Accordingly, the court relies upon the

underlying facts as set forth in the R & R with the exceptions indicated. For purposes of
the motion to dismiss, a1l facts alleged in the Amended Complaint are "accept[ ed] as
true." Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Plaintiff is a Vermont inmate in DOC's custody and is currently serving two
concurrent sentences of twenty years to life on two counts of aggravated sexual assault.
On June 15,2011, while incarcerated at the Chittenden Regional Correctional Facility
("CRCF"), Plaintiff met inmate Martin Morales, whom had been designated "severely
functionally impaired"l by DOC staff. Plaintiff was employed at the CRCF law library
and gym, and he became acquainted with Mr. Morales through their interactions at the
law library. Over time, the two men grew closer and spent time together, discussing
religion and therapy. Plaintiff clarifies in his Objection that the hours spent in CRCF's
law library were "in open space on camera." (Doc. 63 at 1.)
Upon Plaintiffs invitation, Mr. Morales began attending non-denominational
Christian church services on Sundays with Plaintiff. When CRCF became a women's
only prison, all male prisoners in the facility, including Mr. Morales and Plaintiff, were
transferred to Northwest State Correctional Facility ("NWSCF"). The two men were
cellmates for approximately two weeks after their transfer to NWSCF, at which point
Plaintiff was moved into a single-person cell. At NWSCF, Plaintiff began working as the
assistant to both the recreation coordinator and the law librarian. Plaintiff and Mr.
Morales continued to attend church services together. Plaintiffs Objection indicates that
all of the services were "monitored by cameras and prison ministry volunteers." Id. at 5.
I

A "serious functional impairment" is defined under Vermont law as:
(A) a disorder of thought, mood, perception, orientation, or memory as diagnosed
by a qualified mental health professional, which substantially impairs judgment,
behavior, capacity to recognize reality, or ability to meet the ordinary demands of
life and which substantially impairs the ability to function within the correctional
setting; or
(B) a developmental disability, traumatic brain injury or other organic brain
disorder, or various forms of dementia or other neurological disorders, as
diagnosed by a qualified mental health professional, which substantially impairs
the ability to function in the correctional setting.

28 V.S.A. § 906(1).
2

Around May 31, 2012, NWSCF staff began investigating the possibility that
Plaintiff had been sexually abusing Mr. Morales. In his Objection and in his Amended
Complaint, Plaintiff points out that this investigation extended to other alleged
perpetrators as well. (Doc. 57 at 7.) Thereafter, Defendant Stone observed Mr. Morales
sweeping Plaintiffs cell. Plaintiffs Objection notes that in his Amended Complaint he
alleges that his cell door was "open all the way," (Doc. 63 at 1), "so staff could monitor
activity." (Doc. 57 at 6.) Following this incident, Defendant Stone and other prison
officials met with Mr. Morales and allegedly asked whether Plaintiff had sexually abused
him. Mr. Morales allegedly denied that any abuse had occurred. According to Plaintiff,
prison officials did not believe Mr. Morales, moved him to a new unit, and placed
Plaintiff in administrative segregation. Authorities allegedly met with Mr. Morales a
second time, and he continued to deny the allegations of abuse. During this meeting,
prison officials allegedly subjected Mr. Morales to "[a] long line of questioning"
concerning "statements that were allegedly given by other prisoners against [Plaintiff]."

Id. at 8. "Nearly all of the statements" included accusations that Plaintiff was sexually
abusing Mr. Morales. Id. Following the meeting, Mr. Morales remained in his new unit,
and Plaintiff was released from segregation.
During the months that followed, Plaintiff alleges that Defendants retaliated
against him in a number of ways, including removing him from his recreation and law
library jobs, placing him on fifteen-minute observation checks, moving him to a different
living unit, advising him not to contact Mr. Morales to provide legal assistance or
religious advice, and ultimately transferring him to a new facility. Plaintiff, who suffers
from mUltiple sclerosis, states that Defendant Hale, who was allegedly aware of
Plaintiffs health condition, authorized his transfer in order to interfere with Plaintiffs
treatment. This included the alleged failure to ship Plaintiffs medication during his
transfer to the new facility.
In the midst of these disciplinary measures, Defendants Hale and Davies, along
with other prison officials, conducted a meeting with Plaintiff. During the meeting,
Defendant Hale allegedly stated that he terminated Plaintiffs employment with the
3

recreation department "to limit [his] contact with [Mr.] Morales." Id. at 23. Likewise,
Defendant Hale allegedly terminated Plaintiff's position with the law library to prevent
him from having "access to predatorize [Mr.] Morales." Id. Defendant Hale allegedly
accused Plaintiff of being a "predator," and called him "a convicted sex-offender, a
monster, a child-molester, [and] a pedophile." Id.
Plaintiff denies that he posed any threat to Mr. Morales and contends that
Defendants' accusations of sexual abuse were a ruse and were unsubstantiated. He
alleges that Defendants' actions were motivated by a desire to retaliate against Plaintiff
for exercising his religious beliefs and for filing grievances against Defendants. Plaintiff
notes that ministering and advising Mr. Morales concerning Christianity is a core tenant
of his faith.

II.

Procedural Background.
On January 8, 2013, Plaintiff filed a complaint under 42 U.S.C. § 1983, alleging

that a number of prison officials violated his rights under the First, Eighth, and
Fourteenth Amendments, as well as RL UIPA. Plaintiff sought injunctive relief and
compensatory damages against Defendants in their official and individual capacities. 2
On April 17,2013, Defendants filed their motion to dismiss, arguing Plaintiff
failed to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).
On May 9, 2013, Plaintiff filed a motion for appointment of counsel.
On May 28, 2013, Plaintiff amended his complaint, limiting his claims to
Defendants Andrew Pallito (Commissioner of DOC), Hale (Superintendent at NWSCF),
Davies ("CLUS" at NWSCF), and Kory Stone (former caseworker at NWSCF).
Although the Amended Complaint was filed outside the twenty-one day window for the
filing of amendments "as a matter of course," Fed. R. Civ. P. 15(a)(1), and without
Defendants' consent or leave to amend, Fed. R. Civ. P. 15(a)(2), the Magistrate Judge
treated the filing as timely. He did so in light of plaintiff's self-represented status and
because leave to amend should be "freely give[n]" if sought. Fed. R. Civ. P. 15(a)(2).
2 After filing his original Complaint, Plaintiff filed two motions for summary judgment before
discovery began (Doc. 6; Doc. 10), which were denied as premature. (Doc. 17; Doc. 46.)

4

The Magistrate Judge also considered the merits of the pending motion to dismiss using
the facts alleged in the Amended Complaint because it "is a nearly-verbatim recitation of
the original [c]omplaint, offers no new facts that would affect an assessment of the
merits, and differs primarily in its listing of named Defendants and prayer for relief."
(Doc. 58 at 9 n.7.)
Plaintiff does not object to the R & R's recommendation that: (1) all money
damage claims against Defendants in their official capacities be dismissed in accordance
with sovereign immunity; (2) all claims for injunctive relief be dismissed because they
have been rendered moot by Plaintiffs transfer to a new facility; (3) Plaintiffs claim for
damages under RL UIP A be dismissed because it does not permit claims for damages
against individual defendants, either in their official or personal capacities;3 (4) Plaintiff s
retaliation claim under the First Amendment not be dismissed because the alleged
retaliatory conduct took place in close temporal proximity to the grievances filed by Mr.
Morales and Plaintiff; and (5) Plaintiffs Eighth and Fourteenth Amendment claims
should remain intact because Defendants had not moved to dismiss them.
The R & R recommends that Plaintiffs Free Exercise claim under the First
Amendment be dismissed for failure to state a claim and that counsel not be appointed
because Plaintiffs claims are "thin and his chances of prevailing are therefore poor." Id.
at 35 (internal quotation marks omitted). The R & R concluded that Plaintiffs Eighth
Amendment claim was "thin" because it failed to allege facts indicating that Plaintiff was
denied his multiple sclerosis medication as a result of deliberate indifference. Plaintiff
objects to the R & R's conclusion that Plaintiff has failed to state a claim under the Free
Exercise Clause. In analyzing Plaintiffs Free Exercise claim, the Magistrate Judge
assumed arguendo that Defendants had placed a substantial burden on Plaintiffs sincere

Plaintiff notes that he did not challenge recommendation that his RLUIP A claim be dismissed
because, without counsel, he is not clear as to "why or why not he mayor may not be covered."
(Doc. 63 at 2.) In other words, Plaintiff argues that his failure to understand the rights afforded
under RLUIPA supports his motion for appointment of counsel. Accordingly, the court will
consider this argument in conjunction with its consideration of the R & R's recommendation that
appointed counsel be denied.
3

5

religious beliefs by obstructing Plaintiff's ability to act as Mr. Morales's spiritual advisor.
Nevertheless, the Magistrate Judge recommended granting Defendants' motion to dismiss
because Plaintiff's Amended Complaint "has not identified any reason why Defendants'
actions might be considered wholly irrational." (Doc. 58 at 28.) Indeed, the Magistrate
Judge concluded that the connection between the actions taken and the goal of limiting
unsupervised contact between Plaintiff and Mr. Morales was "relatively tight." Id.
Plaintiff contests the Magistrate Judge's further recommendation to deny his
motion for appointment of counsel. Plaintiff objects to this conclusion as it relates to his
claim under the Eighth Amendment and also argues that he needs counsel to help him
understand the law and prepare his case. Accordingly, only Plaintiff's Free Exercise
claim and his motion for appointment of counsel remain at issue. 4

III.

Analysis and Conclusions of Law.
A.

Standard of Review.

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)(1); 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. See Thomas v. Arn, 474 U.S. 140,
150 (1985).
"'The objections of [self-represented] parties ... are generally accorded leniency
and should be construed to raise the strongest arguments that they suggest. ,,' Williams v.
4 The

court need not address certain of Plaintiffs objections as the R & R addresses those issues
in the manner Plaintiff proposes in his Objection. For example, Plaintiffs Objection notes that
his Christian faith is "sincer[e]." (Doc. 63 at 2.) The R & R "[a]ssume[s], without deciding, that
[Plaintiffs] beliefs are sincere." (Doc. 58 at 26.) Likewise, Plaintiff argues that his claims under
the Eighth and Fourteenth Amendments, and his retaliation claim under the First Amendment,
should not be dismissed. (Doc. 63 at 7, 11.) However, the R & R explicitly recommends leaving
those claims intact. (Doc. 58 at 31-32.)
6

Woodhull Med. & Mental Health Ctr., 891 F. Supp. 2d 301,310 (E.D.N.Y. 2012)
(quoting DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333, 340 (S.D.N.Y. 2009)).
Nevertheless, "even a [self-represented] party's objections to a [r]eport and
[r]ecommendation must be specific and clearly aimed at particular findings in the
magistrate's proposal, such that no party be allowed a second bite at the apple by simply
relitigating a prior argument." Dixon v. Ragland, 2007 WL 4116488, at *1 (S.D.N.Y.
Nov. 16,2007) (internal quotation marks omitted).

B.

Factual Objections.

Plaintiffs Objection takes issue with the following facts omitted from the R & R:

(1) Plaintiffs hours spent in CRCF's law library with Mr. Morales were in open space

and on camera; (2) all church services were monitored by cameras and prison ministry
volunteers; (3) the investigation concerning Mr. Morales originally included additional
inmates accused of sexually predatory behavior against Mr. Morales; and (4) whenever

Mr. Morales was present in Plaintiffs cell, the cell door was open so that prison officials
could monitor their activity. The court does not consider the first two factual objections
because they were not included in the Amended Complaint. The remaining two factual
objections were included in the Amended Complaint and thus are included in the court's
review of the R & R.

C.

Standard of Review for Motion to Dismiss.

When assessing a motion to dismiss pursuant to Rule 12(b)(6), the court takes the
complaint's "factual allegations to be true and draw[s] all reasonable inferences in the
plaintiffs favor." Harris v. Mills, 572 FJd 66, 71 (2d Cir. 2009). The court need not
credit '''legal conclusions'" in the complaint or '''[t]hreadbare recitals of the elements of
a cause of action, supported by mere conclusory statements.'" Id. at 72 (alteration in
original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). In its analysis under Rule
12(b)(6), the court must confine its consideration "to facts stated on the face of the
complaint, in documents appended to the complaint or incorporated in the complaint by
reference, and to matters of which judicial notice may be taken." Allen v. WestPoint­

Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991).
7

"[O]nly a complaint that states a plausible claim for relief survives a motion to
dismiss. Determining whether a complaint states a plausible claim for relief will ... be a
context· specific task that requires the reviewing court to draw on its judicial experience
and common sense." Iqbal, 556 U.S. at 679 (internal citation omitted). "While legal
conclusions can provide the framework of a complaint, they must be supported by factual
allegations. When there are weU·pleaded factual allegations, a court should assume their
veracity and then determine whether they plausibly give rise to an entitlement to relief."

Id.; see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555-56 (2007). Finally, pleadings
by self-represented litigants must be construed liberally. See Erickson, 551 U.S. at 94;

Chavis v. Chappius, 618 F.3d 162,171 (2d Cir. 2010).

D.

Free Exercise Claim.

"Prisoners have long been understood to retain some measure ofthe constitutional
protection afforded by the First Amendment's Free Exercise Clause." Ford v. McGinnis,
352 F.3d 582, 588 (2d Cir. 2003). Nevertheless, "a generally applicable policy will not
be held to violate a [prisoner's] right to free exercise of religion if that policy 'is
reasonably related to legitimate penological interests. '" Redd v. Wright, 597 F.3d 532,
536 (2d Cir. 2010) (quoting

o 'Lone v. Estate oJShabazz, 482 U.S. 342, 349 (1987».

This same standard applies "to an individual decision to deny a prisoner the ability to
engage in some requested religious practice," as is the case here. Ford, 352 F.3d at 595
n.15. "This approach ensures the ability of corrections officials to anticipate security
problems and to adopt innovative solutions to the intractable problems of prison
administration, and avoids unnecessary intrusion of the judiciary into problems
particularly ill suited to resolution by decree." 0 'Lone, 482 U.S. at 349-50 (internal
quotation marks omitted). It is also consistent with the "high level of deference" courts
must accord to prison officials. Ford, 352 F.3d at 595.
A prisoner mounting a Free Exercise challenge "must show at the threshold that
the disputed conduct substantially burdens his sincerely held religious beliefs."

Salahuddin v. Goord, 467 FJd 263,274-75 (2d Cir. 2006). Although the Second Circuit
has applied the "substantial burden" standard in its most recent Free Exercise cases, it has
8

done so while explicitly refusing to adopt or endorse the test. See id. at 274 n.3 ("We do
not decide today what effect the Supreme Court's decision in Employment Division v.

Smith, 494 U.S. 872 (1990), has on the

o 'Lone standards for judging prisoner [Free

Exercise] claims because neither party argues that Smith changes the analysis."); Ford,
352 F.3 d at 594 n.13 (applying the 0 'Lone framework where the government did not
argue that Smith altered the

o 'Lone standards).

Adopting for the purposes of this motion

to dismiss a substantial burden standard, "[t]he defendants then bear the relatively limited
burden of identifying the legitimate penological interests that justify the impinging
conduct." Salahuddin, 467 F.3d at 275. Once identified, "the burden remains with the
prisoner to show that these articulated concerns were irrational." Id. (internal quotation
marks and alteration omitted); see also Overton v. Bazzetta, 539 U.S. 126, l32 (2003)
(observing that, in a Free Exercise case, the burden "is not on the State to prove the
validity of prison regulations but on the prisoner to disprove it"). Courts consider the

Turner factors when evaluating the "reasonableness" of the official action:
whether the challenged regulation or official action has a valid, rational
connection to a legitimate governmental objective; whether prisoners have
alternative means of exercising the burdened right; the impact on guards,
inmates, and prison resources of accommodating the right; and the
existence of alternative means of facilitating exercise of the right that have
only a de minimis adverse effect on valid penological interests.

Salahuddin, 467 F.3d at 274 (footnote omitted) (citing Turner v. Safley, 482 U.S. 78, 90­
91 (1987)).
1.

Substantial Burden on Sincerely Held Religious Beliefs.

"An individual claiming violation of free exercise rights need only demonstrate
that the beliefs professed are sincerely held and in the individual's own scheme of things,
religious." Fifth Ave. Presbyterian Church v. City o/New York, 293 F.3d 570, 574 (2d
Cir. 2002) (internal quotation marks omitted). The First Amendment is not confined "to
only those religious practices that are mandatory." Ford, 352 F.3d at 593. Instead, the
"relevant question" is whether the religious practice at issue "is considered central or
important to [the prisoner's] practice of [his religion]." Id. at 593-94. Construing

9

Plaintiffs Amended Complaint liberally, he has alleged that counseling others is central
to his faith, and that, with respect to Mr. Morales, Plaintiff alleges that he introduced him
to the faith and that limiting their contact obstructs his efforts to act as Mr. Morales's
spiritual advisor. These factual allegations are sufficient to satisfy Plaintiffs threshold
burden of demonstrating that his religious beliefs are sincerely held and that the alleged
practice is central or important to the practice of his religion.
As part of his initial burden, Plaintiff must next allege a plausible claim that
Defendants' conduct substantially burdens his sincerely held religious beliefs. Here, he
points to Defendants' alleged limitations on his contact with Mr. Morales even when it
allegedly included religious fellowship and counseling. Plaintiff also alleges that he was
subjected to severe disciplinary measures for exercising his faith, such as terminating his
positions of employment and placing him in administrative segregation. These factual
allegations are also sufficient to meet Plaintiffs burden.
2.

Legitimate Penological Interests.

Defendants then "bear the relatively limited burden of identifying the legitimate
penological interests that justify the impinging conduct." Salahuddin, 467 F.3d at 275.
Generally, courts must not speculate as to the conceivable justifications for prison
officials' conduct or determine the basis of that justification from the complaint alone.

See id. ("Neither the district court nor [the Second Circuit] can manufacture facts out of
thin air."); Shakur v. Selsky, 391 F.3d 106, 115 (2d Cir. 2004) (explaining that courts will
generally not uphold prison regulations "on the face of the complaint alone") (internal
quotation marks omitted); Thomas v. Scully, 943 F.2d 259,260 (2d Cir. 1991) (per
curium) (holding that the district court erred by providing its own rationale for a prison
regulation on a motion to dismiss under Rule 12(b)(6) because doing so went "beyond the
face of the complaint and addressed the merits of the case"); Farid v. Smith, 850 F.2d
917,925-26 (2d Cir. 1988) (finding that prison officials must "articulate" the penological
interest with "record evidence" rather than "unsworn statement[ s]" from pleadings).
Nevertheless, '''there are regulations so obviously related to legitimate penological
concerns that challenges to them may be dismissed ... based simply on an (irrefutable)
10

common sense determination.'" Shakur, 391 F.3d at 115 n.4 (alteration in original)
(quoting Giano v. Senkowski, 54 F.3d 1050, 1059 (2d Cir. 1995) (Calabresi, J.,
dissenting)). At issue in this case is whether the Magistrate Judge erred in supplying
Defendants' penological justification for their alleged conduct by looking to Plaintiff's
Amended Complaint.
Plaintiff's Amended Complaint repeatedly alleges that Defendants justified their
conduct by advising both Plaintiff and Mr. Morales that Defendants suspected Plaintiff
was engaging in a predatory sexual relationship with Mr. Morales, an inmate designated
as "severely functionally impaired," and that the actions taken were designed to prevent
unsupervised contact between Plaintiff and Mr. Morales. 5 See Palmer v. Rustin, 2011
WL 2489820, at *9 (W.D. Pa. June 21,2011) (examining the factual allegations in the
plaintiff's complaint on a motion to dismiss under Rule 12(b)(6) for the penological
interest behind prohibiting the plaintiff from attending Muslim religious services).
However, Plaintiff also alleges that Defendants' purported concern was a ruse and was
unsubstantiated. In essence, he argues that Defendants had other means of monitoring his
actions with Mr. Morales that would have allowed Plaintiff an "alternative means of
exercising the burdened right," and that Defendants had the ability and resources to
"accommodate the right." Salahuddin, 467 F.3d at 274. He argues that these
accommodations would have "only a de minimis adverse effect on valid penological
interests." Id. Plaintiff further alleges that Defendants had no evidence that Plaintiff had
actually engaged in predatory sexual actions while incarcerated, and that Defendant Hale
admitted that Plaintiff may have been wrongfully convicted of aggravated sexual assault.
In sum, Plaintiff contends that "[n]one of [Defendant] Hale's actions seemed to add up."
(Doc. 57 at 21.) In other words, there was no actual justification for the disciplinary

For example, the Amended Complaint alleges that Defendant Hale stated to Plaintiff: "I'm
going to take away your law library job so you can't have access to predatorize Martin Morales."
(Doc. 57 at 23.) As for Plaintiff s job with the recreation department, Defendant Hale allegedly
reported to Mr. Morales: "Let me be clear about my intentions. I am trying to keep Shane Casey
away from you. He is ... a predator." Id. at 22. Defendant Hale also allegedly "claimed that
[Plaintiff! was sexually abusing [Mr.] Morales in his cell." Id. at 13.
5

11

actions taken against Plaintiff, which were not tailored to the alleged threat Defendants
sought to address.
Defendants' decision to separate Plaintiff and Mr. Morales so that they could no
longer share the same cell and have contact is clearly related to Defendants' penological
interest in discouraging sexual predation, and Plaintiff does not argue otherwise. It is less
clear, however, that all of Plaintiff's employment needed to be terminated to achieve this
same end. Because the court cannot make a common sense determination that
terminating Plaintiff's employment was reasonably related to legitimate penological
interests, the court must await Defendants' evidence on this issue. The court therefore
ADOPTS IN PART the R & R's conclusion regarding Plaintiff's Free Exercise claim and
dismisses all claims except those related to termination of Plaintiff's employment.

E.

Motion for Appointment of Counsel.

"A party has no constitutionally guaranteed right to the assistance of counsel in a
civil case." Leftridge v. Conn. State Trooper Officer No. 1283,640 F.3d 62,68 (2d Cir.
2011). However, 28 U.S.C. § 1915(e)(l) authorizes a district court to "request an
attorney to represent any person unable to afford counsel." The court "considers motions
for appointment of counsel by asking first whether the claimant has met 'a threshold
showing of some likelihood ofmerit.'" Johnston v. Maha, 606 F.3d 39, 41 (2d Cir. 2010)
(quoting Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989)). "Thus, even
though a claim may not be characterized as frivolous, counsel should not be appointed in
a case where the merits of the indigent's claim are thin and his chances of prevailing are
therefore poor." Carmona v. Us. Bureau ojPrisons, 243 F.3d 629,632 (2d Cir. 2001).
Only after finding that the plaintiff s claim is of substance, will the court consider
prudential factors such as:
the indigent's ability to investigate the crucial facts, whether conflicting
evidence implicating the need for cross-examination will be the major proof
presented to the fact finder, the indigent's ability to present the case, the
complexity of the legal issues and any special reason in that case why
appointment of counsel would be more likely to lead to a just
determinati on.

12

Hodge v. Police Officers, 802 F.2d 58,61-62 (2d Cir. 1986).

Plaintiff objects to the Magistrate Judge's recommendation that he be denied
appointed counsel to represent him in pursuing his Eighth Amendment claim. "In order
to state a cognizable claim [under the Eighth Amendment], a prisoner must allege acts or
omissions sufficiently harmful to evidence deliberate indifference to serious medical
needs." Estelle v. Gamble, 429 U.S. 97, 106 (1976). "[T]he official must both be aware
of facts from which the inference could be drawn that a substantial risk of serious harm
exists, and he must also draw the inference." Farmer v. Brennan, 511 U.S. 825, 837
(1994). Mere negligence is insufficient to establish deliberate indifference. Estelle, 429
U.S. at 106. "Because the Eighth Amendment is not a vehicle for bringing medical
malpractice claims, nor a substitute for state tort law, not every lapse in prison medical
care will rise to the level of a constitutional violation." Smith v. Carpenter, 316 F.3d 178,
184 (2d Cir. 2003).
Plaintiff argues that Defendant Hale was aware of Plaintiff s "serious health issues
and treatment needs" and was thus "clearly showing deliberate indifference" when he
transferred Plaintiff to another facility, thereby interfering with Plaintiffs prescribed
medical injections. 6 (Doc. 63 at 9.) Without facts supporting Plaintiffs allegation that
Defendants acted with the requisite state of mind, Plaintiffs claim under the Eighth
Amendment fails to satisfy "the threshold standard of likely merit." Johnston, 606 F.3 d
at 42; see also Shire v. Alves, 8 F. Supp. 2d 225,227 (W.D.N.Y. 1998) (declining to
appoint counsel for inmate's claim of deliberate indifference where complaint lacked
evidence of prison official's culpable mental state).
6 Plaintiff alleged in his Amended Complaint that when Defendant Hale transferred Plaintiff his
medication was not transported with him thereby interfering with his treatment schedule. (Doc.
57 at 27.) In his R & R, the Magistrate Judge notes that, based on those bare facts, Plaintiff had
not alleged that Defendant Hale acted with "deliberate indifference." (Doc. 58 at 34.) In his
Objection, Plaintiffrearticulates his allegations and explicitly contends that Defendant Hale
"clearly" acted with "deliberate indifference." (Doc. 63 at 9.) The court accepts this as a
refinement of Plaintiffs legal argument. See Wells Fargo Bank N.A. v. Sinnott, 2010 WL
297830, at *2 (D. Vt. Jan. 19,2010) ("[A] district court has the discretion to consider, or decline
to consider, an argument raised for the first time in an objection to a magistrate judge's report
and recommendation ....").

13

Plaintiffs RLUIPA claim fares no better. The court agrees with the R & R's
conclusions that RLUIPA does not permit claims for damages against Defendants, either
in their official or personal capacities, and that Defendant's request for injunctive relief is
rendered moot by his transfer to the new facility.
The prudential factors also weigh against granting counsel to Plaintiff. Plaintiff
was employed at two correctional facilities in the law library and has not demonstrated
any inability to establish facts or make legal arguments. Plaintiff s Amended Complaint
demonstrates that he is capable of articulating facts within the relevant constitutional
framework, and his filings indicate that he can cite to pertinent legal authority to support
his position. This case does not present novel or thorny legal issues, and the facts are not
complex. Although Plaintiff notes that he does not understand why his RLUIPA claim
was dismissed, the R & R thoroughly explains the grounds for dismissal. The court
therefore DENIES Plaintiff s motion for appointment of counsel.
CONCLUSION

For the reasons stated above, the court hereby ADOPTS IN PART the Magistrate
Judge's R & R. (Doc. 58.)
SO ORDERED.
Dated at Rutland, in the District of Vermont, this

1f

p\

day of December, 2013.

~

Christina Reiss, Chief Judge
United States District Court

14