Morales v. Burke et al

Filing 162

ORDER adopting 161 Report and Recommendation; denying 157 Petition for Declaratory and Extraordinary Relief; denying 158 Motion Challenging the Constitutionality of the PLRA's Exhaustion Requirement; denying 159 Motion Requesting Additio nal Discovery, Motion to Postpone Ruling on Issue of Exhaustion. The court, therefore, DISMISSES Ms. Morales's Complaint WITH PREJUDICE and DENIES Ms. Morale's Petition for Declaratory and Extraordinary Relief; Motion Challenging Constitutionality of the PLRA's Exhaustion Requirement; and Motion Requesting Additional Discovery and Postpone Rule on Issue of Exhaustion. Signed by Chief Judge Geoffrey W. Crawford on 3/9/2023. (sjl)

Case 5:17-cv-00124-gwc-kjd Document 162 Filed 03/09/23 Page 1 of 4

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
SERENDIPITY MORALES,
Plaintiff,
V.

BARRY JOSEPH MACKENZIE and
CHAD NEWTON,
Defendants.

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2023 HAR -9 AN fl: 17

Case No. 5:l 7-cv-124

ORDER ADOPTING REPORT AND RECOMMENDATION
(Doc.161)
Plaintiff Serendipity Morales, a prisoner in the custody of the Vermont Department of
Corrections (DOC), has sued two former corrections officers, Barry Joseph Mackenzie and Chad
Newton, alleging that they assaulted her and discriminated against her, both in retaliation for her
provision of legal assistance to other DOC inmates. 1 (Doc. 19.) Defendant Newton moved for
summary judgment, arguing that Ms. Morales had failed to exhaust the administrative remedies
available to her, a statutory prerequisite to a federal lawsuit under the Prison Litigation Reform
Act (PLRA). (Doc. 44.) The parties litigated this issue further, culminating in this court denying
Mr. Newton's motion for summary judgment and permitting discovery limited to the issue of
exhaustion under the PLRA. 2 (See Docs. 68, 86, 87.)

1

Plaintiff initially named Deputy State's Attorney Alexander Burke as a defendant in this
action. (Doc. 19.) In May 2019, the parties stipulated to the dismissal of Mr. Burke from the case
without prejudice. (See Doc. 83.)
2

Judge Doyle explained the extensive procedural history of this case. (See Doc. 161 at 36, 9-10.) The court does not repeat it here.

Case 5:17-cv-00124-gwc-kjd Document 162 Filed 03/09/23 Page 2 of 4

After reviewing the parties' briefing and holding an evidentiary hearing on the exhaustion
issue, the Honorable Kevin Doyle, United States Magistrate Judge, issued his report and
recommendation that this court dismiss Ms. Morales's suit based on her failure to exhaust her
administrative remedies as required by the PLRA. (Doc. 161.) In addition, Judge Doyle
recommended that the court dismiss Ms. Morales's Petition for Declaratory and Extraordinary
Relief (Doc. 157); Motion Challenging the Constitutionality of the PLRA's Exhaustion
Requirement (Doc. 158); and Motion Requesting Additional Discovery and to Postpone Ruling
on the Issue of Exhaustion (Doc. 159). (Doc. 161.) No party objected to Judge Doyle's R&R. 3
As Judge Doyle explained in his well-reasoned and thorough analysis, Ms. Morales failed
to carry her burden of proving that she had properly exhausted the administrative remedies
available to her through the Vermont DOC's grievance process. (See Doc. 161 at 13-21.) While
Ms. Morales introduced evidence that she had filled out the requisite grievance forms required
by the DOC, she did not demonstrate that she had filed these forms. (See id. at 15-17 & n.6, 19.)
For that reason, Judge Doyle concluded that Ms. Morales had failed to exhaust as required by the
PLRA and recommended that the court dismiss her complaint. (Id. at 21.)
In addition, Judge Doyle recommended that the court dismiss with prejudice because Ms.
Morales's suit relates to an alleged assault in 2016, and the time for her to properly exhaust her
claim within the DOC has since expired. (See id. at 13-14, 21-22.)

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Where, as here, no party objects to a magistrate judge's report and recommendation, a
district court reviews it for clear error. Fed. R. Civ. P. 72(b) advisory committee's 1983 note;
Brown v. Peters, No. Civ.A. 95CV1641RSPDS, 1997 WL 599355, at *2 (N.D.N.Y. Sept. 22,
1997) (Pooler, J.) (collecting cases), ajf'd 175 F.3d 1007 (2d Cir. 1999) (summary order). Still, a
district court "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 ).

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Finally, Judge Doyle recommends that the court deny Ms. Morales's three most-recent
motions. He recommended that the court deny Ms. Morales's motion seeking a declaration that
the doctrine of qualified immunity is unlawful (Doc. 157) and her motion challenging the
constitutionality of the PLRA's exhaustion requirement (Doc. 158) on their merits. (Doc. 161
at 22-23.) The court agrees with each of these recommendations.
Judge Doyle also recommended that the court deny Ms. Morales's motion requesting
additional discovery and to postpone ruling on the issue of exhaustion. (Doc. 159.) According to
Ms. Morales, the Vermont DOC has recently recognized shortcomings in its internal grievance
processes. (Id. at 2.) Ms. Morales wants to conduct additional discovery to see if the DOC's
shortcomings relate to her alleged inability to exhaust her available remedies. It is true that the
Vermont State Auditor documented "significant deficiencies" in Vermont's prisoner grievance
process. Douglas R. Hoffer, Department of Corrections: Significant Deficiencies Demonstrate
Need for Overhaul of the Prisoner Grievance Process, Report of the Vermont State Auditor 1, I
(Dec. 16, 2022), https://auditor. vermont.gov/sites/auditor/files/documents/Final%20DOC%20
Grievance%20Report.pdf. But the report only studied grievances between January 1, 2021 and
June 30, 2022. Id. at 22. As Judge Doyle explained, Ms. Morales has not demonstrated how any
current documented shortcomings relate to her grievances in 2016. (Doc. 161 at 23.) Plus, Judge
Doyle recorded the numerous discovery extensions that the court has already granted
Ms. Morales throughout the course of this litigation, and she has not met her burden to reopen
discovery at this late stage. (Id. at 23-24.) The court agrees with Judge Doyle and denies this
motion as well.
For the foregoing reasons, the court ADOPTS Judge Doyle's Report and
Recommendation (Doc. 161) in full. The court, therefore, DISMISSES Ms. Morales's Complaint

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(Doc. 19) WITH PREWDICE and DENIES Ms. Morales's Petition for Declaratory and
Extraordinary Relief (Doc. 157); Motion Challenging the Constitutionality of the PLRA' s
Exhaustion Requirement (Doc. 158); and Motion Requesting Additional Discovery and Postpone
Ruling on Issue of Exhaustion (Doc. 159).
SO ORDERED.
Dated at Burlington, in the District of Vermont, this 9th day of March, 2023.
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Geoffrey W. Crawford, Chief Judge
United States District Court

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