Thurston v. Pallito et al

Filing 41

OPINION AND ORDER Adopting In Part 36 Report and Recommendation granting 30 Motion to Dismiss for Failure to State a Claim. All of Plaintiff's § 1983 claims against all Defendants are DISMISSED and any state-law claims the Plaintiff is alleging against Defendants are also DISMISSED. Plaintiff is hereby granted leave to file a Second Amended Complaint setting forth his claim under the Fifth Amendment, consistent with this Opinion and Order. Plaintiff must file a Second Amended Complaint, which will take place of any previously filed complaint, within thirty (30) days of this Opinion and Order. Signed by Chief Judge Christina Reiss on 3/11/2015. (pac)

U.S. DiSTRICT COURT
DISTRICT OF VERMONT
f=-ILED

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

CHRISTOPHER THURSTON,
Plaintiff,

v.
ANDREW PALLITO, SCOTT MORLEY,
BOB ARKLEY, CARL DAVIS,
BRIAN REED, and CHRIS MANDIGO,
Defendants.

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2015 HAR II PM 12: 22
CLER'"'

BY-.--.-~
DEf"t!T Y CLERt\

Case No. 5:13-cv-316

OPINION AND ORDER ADOPTING IN PART MAGISTRATE'S
REPORT AND RECOMMENDATION
(Doc. 30 & 36)
This matter came before the court for a review of the Magistrate Judge's January
13, 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 Andrew
Pallito, Scott Morley, Bob Arkley, Carl Davis, Brian Reed, and Chris Mandigo (Doc. 30).
In their motion, Defendants seek dismissal of Plaintiff Christopher Thurston's claims
brought under 42 U.S.C. § 1983, alleging that Vermont Department of Corrections
("DOC") staff wrongfully confiscated Plaintiffs journal as contraband and used it to
discipline him for the thoughts and beliefs contained therein. Defendants contend
Plaintiff has failed to state a claim upon which relief may be granted. Plaintiff opposes
dismissal.
Plaintiff filed a timely objection to the R & R (Doc. 39) to which Defendants have
filed a response (Doc. 40). Plaintiffs objection reiterates and supplements the factual
and legal basis of his claims, alleges that his Fifth Amendment privilege against self-

incrimination was violated when his journal was confiscated and used against him,
clarifies the sources of his physical injury and mental anguish, argues that DOC failed to
follow its own protocols and procedures, and states the basis on which he claims
Defendant Pallito was personally involved in the alleged constitutional violations.
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).
I.

The Complaint and the Amended Complaint.
In his thirty-eight pageR & R, the Magistrate Judge carefully reviewed the factual

allegations and legal claims in both the Complaint and Amended Complaint. At this
juncture, a brief summary of the relevant allegations is sufficient.
Plaintiff alleges that during his incarceration in a Vermont state correctional
facility, DOC's mental health services provided Plaintiff with a composition book in
which to record his thoughts. On January 18, 2013, during a search of Plaintiffs cell,
Defendant Arkley allegedly confiscated Plaintiffs journal and thereafter Defendant
Arkley and Defendant Morley questioned Plaintiff about it. When Plaintiff allegedly
failed to provide satisfactory answers, he was placed in a segregation unit. Either as part
of the journal or as a separate document, Plaintiff further alleges that DOC confiscated
the addresses of several of Plaintiffs friends, thereby depriving him of contact with them.
As for the contents of his journal, Plaintiff alleges that the journal explores the
challenges of incarceration, events and circumstances in Plaintiffs personal life and his
reactions to them, Plaintiffs thoughts about introducing contraband into the facility to
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make money to pay for a lawyer, and a jail break story in the first person which is based
in the St. Johnsbury correctional facility where Plaintiff was housed that Plaintiff hoped
to develop into a longer work of fiction.
Plaintiff alleges that, in addition to the allegedly wrongful confiscation of his
journal, in a hearing that followed thereafter, Defendant Arkley fabricated evidence in his
report and Defendant Mandigo failed to act as an impartial hearing officer and failed to
consider the contents of Plaintiffs journal to "corroborate" Defendant Arkley's report.
Plaintiff alleges that Defendant Davis mishandled his appeal by failing to note that it had
been filed. Plaintiff alleges that he was then transferred to a new correctional facility
which caused him to miss medical appointments and experience pain from a tom rotator
cuff and bicep tendon and that at the new facility he was in even more intensive
segregation and was not permitted to self-inject his required insulin. When Plaintiff
refused to allow a "stranger" to provide his insulin, he allegedly suffered adverse health
consequences which required hospitalization.
As a result of the confiscated journal, Plaintiff alleges that he was placed in
segregation on three separate occasions resulting in 268 days of segregation as of May
13, 2014. Plaintiff requests the court to order the return of his journal and seeks
compensatory and punitive damages.

II.

Conclusions of Law and Analysis.
When evaluating a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to

state a claim, a court assumes "all well-pleaded, nonconclusory factual allegations in the
complaint to be true[,]" Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 124 (2d Cir.
2010), and determines "whether they plausibly give rise to an entitlement to relief."
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The court also draws "all reasonable
inferences in the plaintiffs favor." Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir.
2009) (internal citation and quotation marks omitted). The court will not credit "legal
conclusions" or "[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements." Iqbal, 556 U.S. at 678. As a result, "[w]hile legal
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conclusions can provide the framework of a complaint, they must be supported by factual
allegations." Iqbal, 556 U.S. at 679.
The court is required to "liberally construe" Plaintiffs Complaint and Amended
Complaint and interpret these pleadings "to raise the strongest arguments they suggest."
Bertin v. United States, 478 F.3d 489, 491 (2d Cir. 2007) (citation and internal quotation
marks omitted). "Nonetheless, a prose complaint must state a plausible claim of relief."
Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013).
The R & R correctly concludes that to the extent the Complaint and Amended
Complaint may be construed to assert damages claims against Defendants in their official
capacities, Plaintiffs claims must be dismissed because such claims are not against a
"person" as required by 42 U.S.C. § 1983. In his objection, Plaintiff clarifies that he is
making official capacity claims for monetary damages. See Doc. 39 at 3 ("The Plaintiff
asserts his numerous rights, in which the Defendants violated, both under the color of law
and outside the scope of their authority, as officials and individually, and hence the claim
for monetary damages.") He does not, however, object to the R & R's conclusion that
those claims are not available against Defendants in their official capacities under § 1983.
See Spencer v. Doe, 139 F.3d 107, 111 (2d Cir. 1998) ("Neither a state nor one of its
agencies nor an official of that agency sued in his or her official capacity is a 'person'
under§ 1983"). Plaintiffs official capacity claims for monetary damages are hereby
DISMISSED.
The R & R further concludes that under the Prison Litigation Reform Act, 42
U.S.C. § 1997e(e) (the "PLRA"), Plaintiffs mental anguish claims need not be dismissed
even though "[n]o Federal civil action may be brought by a prisoner confined in a jail,
prison, or other correctional facility, for mental or emotional injury suffered while in
custody without a prior showing of physical injury[.]" 42 U.S.C. § 1997e(e). In his
objection, Plaintiff identifies his "physical injury" as the injuries he suffered when he was
not allowed to self-inject insulin. See Doc. 39 at 3 (identifying Plaintiffs physical injury

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as one caused by "denial of self-injection of life-saving insulin"). 1 In light of this
clarification, the court disagrees with the R & R's conclusion that Plaintiffs mental
anguish claims remain viable under the PLRA. Regardless of how liberally the court
construes Plaintiffs Complaint and Amended Complaint, it is not plausible that
Plaintiffs suffered a physical injury or was hospitalized because Defendants, or any one
of them, inflicted a physical injury on Plaintiff. Defendants are thus correct that Plaintiff
does not plausibly allege causation as any physical injury Plaintiff suffered was solely
and directly attributable to Plaintiffs decision to refuse any insulin that he could not selfadminister. Plaintiffs mental anguish claims must therefore be dismissed under the
PLRA. The court therefore does not adopt that portion of the R & R addressing the
application of the PLRA.
The Magistrate Judge concluded that although Plaintiff alleges the personal
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involvement of the named Defendants, other than Defendant Pallito, none of Plaintiffs
claims set forth a plausible claim of relief. The court finds the Magistrate Judge's
analysis thorough and well-reasoned and adopts it as the opinion of the court. Nothing in
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Plaintiff does not allege a physical injury as a result of the conditions of his confinement in
segregation, nor could he plausibly do so as it is apparent that none of the Defendants inflicted a
physical injury on Plaintiff at any time. This is also true of any medical appointments Plaintiff
missed as a result of his transfer to a new correctional facility. Any pain Plaintiff suffered as a
result of his pre-existing medical conditions was not caused by Defendants as there is no
allegation that the medical appointments would have alleviated that pain. See Bass v. Jackson,
790 F.2d 260, 263 (2d Cir. 1986) (holding complaint did not adequately connect a failure to
receive medical care to any of correction official, requiring dismissal of that claim.).
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In his objection, Plaintiff alleges the "personal involvement ofCommissioner Pallito" on the
grounds that he is "responsible for the actions of the staff under his direction and no official act
or implementation of any Directive, Policy or Procedure may commence without his signature
and/or approval." (Doc. 39 at 3.) This allegation is insufficient to state a claim of personal
involvement. See Grullon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) ("[W]e agree
with the district court that Grullon's complaint, as filed, did not sufficiently allege the Warden's
personal involvement in or awareness of the health, safety, and communications issues raised by
Grullon. There were no direct allegations; there were no indirect allegations sufficient to permit
an inference the Warden had acted or failed to act in any of the ways that would subject him to
personal liability for the deprivations alleged by Grullon.").
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Plaintiffs objection alters that conclusion or offers any grounds for concluding that he
has alleged a plausible claim for relief under§ 1983. The court therefore DISMISSES
WITHOUT PREJUDICE Plaintiffs federal claims as set forth in the Complaint and
Amended Complaint.

III.

Supplemental Jurisdiction Over Plaintiff's State Law Claims.

In his R & R, the Magistrate Judge recommended that the court refrain from
exercising supplemental jurisdiction over Plaintiffs state law claims. The court agrees
with this recommendation and adopts it. As the Supreme Court explained in CarnegieMellon Univ. v. Cohill, 484 U.S. 343 (1988), where "all federal-law claims are eliminated

before trial, the balance of factors to be considered under the [supplemental] jurisdiction
doctrine-judicial economy, convenience, fairness, and comity-will point toward
declining to exercise jurisdiction over the remaining state law claims." !d. at 350 n.7; see
id. at 350 ("When the balance of these factors indicates that a case properly belongs in

state court, as when the federal-law claims have dropped out of the lawsuit in its early
stages and only state-law claims remain, the federal court should decline the exercise of
jurisdiction by dismissing the case without prejudice.") (citing United Mine Workers v.
Gibbs, 383 U.S. 715, 726-27 (1966)).

IV.

Leave to Amend.

In his objection, Plaintiff raises what appears to be a new claim that his Fifth
Amendment privilege against self-incrimination was violated when his private thoughts
in his confiscated journal were used against him. This allegation is somewhat at odds
with Plaintiffs further claim that, in presiding over Plaintiffs administrative hearing,
Defendant Mandigo improperly failed to consider the contents of Plaintiffs journal in
order to corroborate Defendant Arkley's report.
The parties have not briefed Plaintiffs Fifth Amendment claim and the district
courts in the Second Circuit have concluded that the court has discretion to refuse to
consider a legal argument raised for the first time in an objection to an R & R. See
Amadasu v. Ngati, 2012 WL 3930386, at *5 (E.D.N.Y. Sept. 9, 2012) (collecting cases
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and citing six factor test set forth in Wells Fargo Bank N.A. v. Sinnott, 2010 WL 297830
(D. Vt. Jan. 19, 2010) as guidance for determine how discretion should be exercised). In
light of the Plaintiffs self-represented status, the court construes Plaintiffs objection as a
request to raise a new constitutional claim under the Fifth Amendment. The court will
grant Plaintiff leave to amend for this purpose. Plaintiff must file a Second Amended
Complaint, which will take the place of any previously filed complaint, within thirty (30)
days of this Opinion and Order. The Second Amended Complaint should only address
Plaintiffs Fifth Amendment claim and should clearly identify the defendant or
defendants against whom it is asserted, their personal involvement in the alleged
constitutional violation, and the nature of the relief Plaintiff seeks in light of the PLRA.
The court does not, at this time, extend leave to amend so that Plaintiff may supplement
claims that the court has dismissed. In order to reassert dismissed claims, Plaintiff must
explain why such supplementation should be allowed in the facts and circumstances of
this case and under Rule 15 of the Federal Rules of Civil Procedure.
CONCLUSION

For the foregoing reasons, the court hereby ADOPTS IN PART the Magistrate
Judge's R & R as the court's Order and Opinion, and GRANTS the Defendant's Motion
to Dismiss (Doc. 30). All of Plaintiffs§ 1983 claims against all Defendants are
DISMISSED and any state-law claims the Plaintiff is alleging against Defendants are also
DISMISSED. Plaintiff is hereby granted leave to file a Second Amended Complaint
setting forth his claim under the Fifth Amendment, consistent with this Opinion and
Order.
SO ORDERED.

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