Patient A v. Vermont Agency of Human Services et al

Filing 135

OPINION AND ORDER denying 116 Motion for Extension of Time to File Response/Reply as to 109 CROSS MOTION for Summary Judgment re: Counts I and II. Signed by Judge Geoffrey W. Crawford on 3/9/2016. (esb)

iJ.S.~otSlRlcr COURT
DISTRICT OF VERMONT

UNITED STATES DISTRICT COURT
FILED
FOR THE
20t& MAR -9 PH~:
DISTRICT OF VERMONT

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CLERK
PATIENT A,
Plaintiff,

v.
VERMONT AGENCY OF HUMAN
SERVICES, VERMONT DEPARTMENT
OF MENTAL HEALTH, PAUL DUPRE,
COMMISSIONER OF DEPARTMENT OF
MENTAL HEALTH, in his individual and
official capacity, CORRECT CARE
SOLUTIONS, VERMONT DEPARTMENT
OF CORRECTIONS, and ANDREW
PALLITO, COMMISSIONER OF
DEPARTMENT OF CORRECTIONS, in his
individual and official capacity,
Defendants.

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BY..DE HY CLERK
NI~
Case No. 5: 14-cv-000206

OPINION AND ORDER
(Doc. 116)
Plaintiff has filed a motion seeking to defer his response to the State Defendants' Cross
Motion for Summary Judgment (Doc. 109) until after he is able to depose Andrew Pallito,
former Commissioner of the Vermont Department of Corrections ("DOC"), and Paul Dupre,
former Commissioner of the Department of Mental Health ("DMH"). For the following reasons,
Plaintiff's motion (Doc. 116) is DENIED.

I.

Background
The court assumes the parties' familiarity with the underlying facts and allegations of this

case. Plaintiff's motion concerns the substance of his claim rather than a mere scheduling issue.
Both Commissioners have responded to written discovery and stated that they had no personal
involvement in decisions to hold plaintiff in solitary confinement or to transfer him to a hospital
for treatment of mental illness. Commissioner Pallito states that he first learned about Plaintiff's

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need for hospitalization through an email sent by Plaintiffs legal representatives on March 28,
2014. Plaintiff was transferred to a hospital a few days later. Commissioner Dupre states that he
does not recall exactly when he learned about Plaintiffs case but that he understood at some
point that DMH's care management team was "evaluating the situation on a regular basis and
would triage [Plaintiff] into an appropriate psychiatric bed as quickly as possible." (Doc. 109-22
at 6.)
Both Commissioners object to Plaintiff s request to depose them on the grounds that they
cannot be held personally liable based upon their supervision of their respective Departments.
Commissioner Pallito advances a second reason for declining to testify at a deposition, which is
the press of his current responsibilities as Commissioner ofthe Vermont Department of Finance
and Management. As a senior member of the executive branch, he invokes the requirement of
"exceptional circumstances" for any personal appearance at a deposition and argues that Plaintiff
has not and cannot make such a showing. See Lederman v. NYC. Dep 't ofParks & Recreation,
731 F .3d 199, 203 (2d Cir. 2013).

II.

Analysis
"It is well settled in this Circuit that personal involvement of defendants in alleged

constitutional deprivations is a prerequisite to an award of damages under § 1983." Wright v.
Smith, 21 F.3d 496,501 (2d Cir. 1994) (internal quotation marks and citations omitted).

"[S ]upervisor liability in a § 1983 action depends on a showing of some personal responsibility,
and cannot rest on respondeat superior." Hernandez v. Keane, 341 F.3d 137, 144 (2d Cir. 2003)
(emphasis in original) (citation omitted). Moreover, liability cannot be predicated on allegations
of simple negligence or a lack of reasonable care and attention. See Daniels v. Williams, 474
U.S. 327, 328 (1986) (Due Process Clause "not implicated by a negligent act of an official
causing unintended loss of or injury to life, liberty, or property" (emphasis in original)); see also
Dodd v. City ofNorwich, 827 F.2d 1,3 (2d Cir. 1987) ("[T]o establish a violation of the due

process clause [giving rise to § 1983 liability] a plaintiff must prove that defendant 'deprived'
him of life, liberty or property, a concept clearly satisfied by intentional conduct, but clearly not
satisfied by conduct that is merely negligent." (emphasis in original)).

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Personal involvement of a supervisory defendant may be shown, however, by evidence
of: gross negligence in the supervision of employees; failure to remedy a wrong after learning of
it; creating an unconstitutional practice through policy or custom; or exhibiting deliberate
indifference to the rights of inmates. See Colon v. Coughlin, 58 F 3d 865, 873 (2d Cir. 1995).
Here, Plaintiff offers no evidence that either Commissioner was personally involved in these
types of misconduct. The court therefore agrees that they need not appear for depositions in this
lawsuit. Both Commissioners have stated under oath that they had no involvement in Plaintiffs
conditions of incarceration or mental health care. This lack of direct, hands-on involvement is
not surprising for Department heads. As both Commissioners indicate in their interrogatory
answers, other employees within their Departments were responsible for making the decisions
about individual prisoners who required mental health services.
There is no legitimate basis upon which to require the Commissioners' in-person
testimony. Both Commissioners have described the minimal recollection they have of Plaintiffs
term in prison. If they are both on record stating that they have no specific recollection of these
events and the production of documentation shows nothing to the contrary, then asking the
Commissioners if they recall additional facts will add little to the information already available
to the parties. In the words of the recently-amended federal discovery rules, requiring the two
Commissioners to submit to depositions would not be "proportional to the needs of the case,"
given the tiny and remote possibility that their recollections will improve and they will be
capable of offering additional, relevant evidence when confronted by Plaintiffs counseL See
Fed. R. Civ. P. 26(b)(1). The court would see the issue differently if there were documents that
demonstrated greater knowledge and participation than the Commissioners describe in their
interrogatory answers. Plaintiff has brought no such documents to the court's attention.

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III.

Conclusion
For the reasons stated above, Plaintiffs Motion to Partially Defer Response in

Opposition to State Defendants' Cross Motion for Summary Judgment Pursuant to Rule 56(d)
(Doc. 116) is DENIED.
Dated at Rutland, in the District ofVennont, this 9th day of March, 2016.

Geoffrey W. Crawford, Judge
United States District Court

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