Morales v. Burke et al

Filing 68

REPORT AND RECOMMENDATION AND ORDER recommending that Defendant Newton's 44 MOTION for Summary Judgment be denied. ORDERED: Plaintiff's 59 MOTION to Appoint Counsel is DENIED. Objections to R&R due by 2/8/2019. Signed by Judge John M. Conroy on 1/22/2019. (hbc)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Serendipity Morales,
Plaintiff,
v.

Civil Action No. 5:17–cv–124-gwc-jmc

Alexander N. Burke,
Barry Joseph MacKenzie,
Chad Newton,
Defendants.
REPORT AND RECOMMENDATION
(Doc. 44)
AND ORDER
(Doc. 59)
Plaintiff Serendipity Morales, a prisoner proceeding pro se, brings this action
under 42 U.S.C. § 1983 against Defendants Chad Newton and Barry Joseph
MacKenzie, two former Southern State Correctional Officers, as well as Defendant
Alexander Burke,1 a Bennington County Deputy State’s Attorney, all in their
individual capacities. (Doc. 19 at 2, ¶ 1.) Morales alleges in her Amended
Complaint that, while in the custody of the Vermont Department of Corrections
(DOC), she provided legal assistance to five inmates facing pending criminal
charges and that, to retaliate for that legal assistance, Burke directed Newton and
MacKenzie to assault and batter her in violation of her First Amendment rights and
her right to be free of discrimination based on her self-identification as “female, gay,

Previously, the undersigned Magistrate Judge issued a Report and Recommendation
recommending that the Court dismiss Morales’s claims against Burke, without prejudice. (Doc. 47.)
The Court has not yet considered that Report and Recommendation.
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mentally ill, Puerto Rican, and transgender.” (Id. at 2, ¶¶ 1, 5.) Morales seeks
monetary damages in the form of compensatory and punitive damages, and any
additional relief the Court may deem appropriate. (Id. at 2, ¶ 1; id. at 3–4, ¶¶ 4, 5.)
Presently before the Court is Newton’s Motion for Summary Judgment,2
which he filed instead of an Answer. (See Doc. 44 at 1.) In the motion, Newton
argues that Morales failed to exhaust her administrative remedies, as required by
the Prison Litigation Reform Act of 1995 (PLRA), Pub. L. 104-134, § 803(d),
110 Stat. 1321-71 (1996) (codified as 42 U.S.C. § 1997e). (Id. at 5.) Morales opposes
Newton’s motion. (See generally Doc. 49.) Also pending before the Court is
Morales’s Motion to Appoint Counsel. (Doc. 59.)
Concluding that the record contains material questions of fact regarding
Morales’s efforts to exhaust her administrative remedies, I recommend that
Newton’s motion for summary judgment be DENIED. (Doc. 44.) Further, for the
reasons set forth below, Morale’s Motion to Appoint Counsel (Doc. 59) is DENIED.
Factual and Procedural Background
The facts in this case are primarily drawn from Morales’s Amended
Complaint (Doc. 19), and the documents submitted in support of her pleadings.

Morales encountered difficulties serving Defendants Newton and MacKenzie, necessitating
an order from this Court allowing Morales limited discovery for the purpose of ascertaining any
addresses associated with Newton and Mackenzie. (Doc. 34.) After conducting limited discovery,
Morales determined that she had been unable to locate MacKenzie because she incorrectly believed
that his full name was Shane Mackenzie. After discovering that his correct name was Barry Joseph
MacKenzie, Morales filed a Motion to Amend Named Defendant (Doc. 64), which this Court granted.
(Doc. 66.) Based on this new information, Morales is presently attempting to serve MacKenzie;
however, service has not been completed, so the Court lacks personal jurisdiction over MacKenzie.
Omni Capital Int’l, Ltd. v. Rudolf Wolff & Co., 484 U.S. 97, 104 (1987) (“Before a federal court may
exercise personal jurisdiction over a defendant, the procedural requirement of service of summons
must be satisfied.”).
2

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(Docs. 7-1–7-8.) As required at this stage of the proceedings, the Court views the
disputed material facts in the light most favorable to Morales.
I.

DOC Offender Grievance System
Directive 320.01 governs the DOC offender grievance system and was in

place during the time relevant to Morales’s Complaint. (Doc. 45-1 at 1, ¶¶ 2–4);
see also Vt. Dep’t of Corr., Agency of Hum. Servs., Directive 320.01,
http://corrections.vermont.gov/about/policies/rpd/correctional-services-301-550/301335-facilities-general/320.01.pdf. Directive 320.01 sets forth a four-tiered process
beginning with an inmate submitting “Grievance Form #1, Informal Complaint &
Plan for Resolution Form.” (See Doc. 45-1 at 1, ¶ 5); Directive 320.01(7). If a plan to
resolve the informal complaint is not agreed upon within 48 hours, the inmate may
then proceed to the formal grievance process. See Directive 320.01(7)(a)(vi). The
first step of the formal grievance process is filing “Grievance Form #2,
Offender/Inmate Grievance Submission Form.” (See Doc. 45-1 at 1, ¶ 6.) The DOC
facility staff must then investigate and provide the inmate with a resolution within
20 business days. (Id.); see also Directive 320.01(10)(a)(vii)–(xii). If the inmate is
unsatisfied with the resolution, the inmate may then appeal that decision using
“Grievance Form #5, Decision Appeal to Corrections Executive” and then, if the
inmate remains unsatisfied, he or she may seek relief from the DOC Commissioner
through “Grievance Form #7, Decision Appeal to Commissioner.” Directive
320.01(15)(a), (b). There are no further administrative appeals after the DOC
Commissioner. Directive 320.01(15)(b)(iiii).

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II.

Morales’s Grievances Against Newton
Morales is an inmate in the custody of the DOC. (Doc. 19 at 2, ¶ 1.) She

identifies as “female, gay, mentally ill, Puerto Rican, and transgender.” (Id.)
Despite lacking a law license or formal legal training, Morales assists other
prisoners with their legal proceedings. (Id.) The DOC regulations allow so-called
“jailhouse layers” like Morales to communicate with other inmates “as long as the
Superintendent or designee knows the [jailhouse lawyer] customarily offers legal
advice to other inmates.” See Vt. Dep’t of Corr., Agency of Human Servs., Directive
409.05 at 8, ¶ 7(b)(iii) (2010), http://www.doc.state.vt.us/about/policies/rpd
/correctional-services-301-550/401-500-programs-security-and-supervision/409-05inmate-mail-publications-and-audio-video-regulations.
From approximately December 2015 to January 2016, Morales “assisted five
prisoners with respect to having drafted, filed, and litigated pro se pretrial
pleadings with respect to charged criminal offenses levied against them by Burke in
Bennington Criminal Division.” (Doc. 19 at 2, ¶ 1.) While Morales was providing
this legal assistance, she was incarcerated in Marble Valley Regional Correctional
Facility. (Id.) At some time in January 2016, she was transferred from Marble
Valley Regional Correctional Facility to Southern State Correctional Facility
(SSCF), where Defendants Newton and MacKenzie were employed as correctional
officers. (Id. at 3, ¶ 3.)
At approximately the same time that Morales was transferred, Burke filed an
information against Morales charging her with six counts of unauthorized practice
of law in violation of Vt. Stat. Ann. tit. 4, § 901, and Vermont Administrative Order

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No. 41, § 2. (Id. at 3–4, ¶ 4); see also In re Morales, 2016 VT 85, 202 Vt. 549,
151 A.3d 333. On August 5, 2016, the Vermont Supreme Court issued an opinion
concluding that the multiple counts of unauthorized practice of law were not
supported by probable cause and the Supreme Court dismissed the information.
In re Morales, 2016 VT 85, ¶ 30. Subsequently, Morales alleges that, on November
8, 2016, Newton and MacKenzie entered Morales’s jail cell and assaulted and
battered her (see Doc. 7-3), purportedly stating during the attack that “this comes
from Alex Burke . . . [t]his is what you get for fucking with his cases.” (Doc. 19 at 4,
¶ 5.)
Morales asserts that, after the purported assault and battery, she filed
several grievances against MacKenzie and Newtown seeking redress. (See Docs.
7-1–7-8.) Specifically, Morales asserts that on November 9, 2016, she filed
“Grievance Form #1, Informal Complaint & Plan for Resolution Form,” asking to
meet with a police officer to make a statement against MacKenzie and Newton.
(Doc. 7-1.) According to Morales, officials at SSCF did not reply to this grievance,
and on November 12, 2016, Morales submitted “Grievance Form #2,
Offender/Inmate Grievance Submission Form,” stating that her first grievance had
been received but had not been “signed, dated, and timed” and that she did not
receive a timely plan for resolution. (Doc. 7-3.) She also asked again to meet with a
police officer to report the alleged assault. (Id.) Morales claims that, on December
20, 2016, she filed “Grievance Form #5, Decision Appeal to Corrections Executive,”
in which she sought appeal of her previous two grievance forms, claiming that the
forms had been received but had been not signed, dated, and timed and repeating

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her request to speak with a police officer. (Doc. 7-5.) Finally, Morales alleges that
on January 29, 2017, she appealed her grievances to the DOC Commissioner using
“Grievance Form #7, Decision Appeal to Commissioner,” stating that she had not
received a timely response to any of her previous grievances and asking again to
meet with a policy officer. (Doc. 7-7.) Morales did not receive a response to this
final appeal and, on July 7, 2017, she instituted the present suit in this case.
(Doc. 1.)
Morales has provided the Court with purported copies of the unsigned
grievance forms that she submitted. (See Docs. 7-1, 7-3.) Newton challenges
Morales’s assertions, arguing that the DOC has no record that Morales filed the
forms. (Doc. 44 at 6; Doc 45 at 4, ¶ 16.) In support of this argument, Newton relies
on the affidavit of David Turner, the DOC’s Director of Policy Development and
Offender Due Process. (Doc. 45-1.) According to Turner, the DOC maintains a
database of grievance appeals that are sent to the executive level and those that are
sent to the Commissioner. (Id. at 2, ¶ 9.) After a search of this database, Turner
states that “there are no grievance appeals either to the superintendent or to the
Commissioner concerning the matters of which [Morales] complains in this lawsuit,”
nor are there paper copies of grievance appeals filed by Morales. (Id. at 2, ¶ 10.) In
addition, Turner asserts that he reviewed the grievance forms submitted by
Morales and determined that “none of these forms were received by Department
officials” because the forms were not signed by a Department staff person. (Id. ¶ 12;
id. ¶ 13.)

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III.

Procedural History
On July 7, 2017, Morales began the present action under 42 U.S.C. § 1983 in

this Court. (Doc. 1.) As noted above, because Newton is no longer employed by the
DOC, Morales initially encountered difficulties locating and serving Newton. (See
Docs. 29, 34.) Ultimately, this Court received Newton’s executed waiver of service
on April 19, 2018. (Doc. 37.)
In her Amended Complaint, Morales contends that, in retaliation for
providing legal assistance to fellow inmates, Burke directed Newton and MacKenzie
to assault and batter her in violation of the First and Fourteenth Amendment.
(Doc. 19 at 3–4, ¶¶ 3–5.) Morales also asserts that this retaliatory assault and
battery “discriminat[ed] against her based upon her open self-identification as
female, gay, mentally ill, Puerto Rican, and transgender.” (Id. at 2, ¶ 1; id. at 3–4,
¶¶ 2–5.) As noted above, in his Motion for Summary Judgment, Newton argues
that Morales failed to exhaust her administrative remedies, as required by the
PLRA. (Doc. 44 at 5); see also 42 U.S.C. § 1997e.
Analysis
I.

Summary Judgment Standard
“A party may move for summary judgment in lieu of an answer.” Mckinney v.

Prack, 170 F. Supp. 3d 510, 513–14 (W.D.N.Y. 2016); see also Fed. R. Civ. P. 56(b)
(providing that a party may file a motion for summary judgment “at any time until
30 days after the close of all discovery”). “The standard for granting summary
judgment is the same whether the motion is made in lieu of an answer or after

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discovery has occurred—the moving party must demonstrate that no genuine issues
of material fact exist and that it is entitled to judgment as a matter of law.”
Mckinney, 170 F. Supp. 3d at 514; see also Fed. R. Civ. P. 56(a). A “genuine
[dispute] as to any material fact” exists when factual issues materially affecting the
outcome could reasonably be resolved in favor of either party. McPherson v.
Coombe, 174 F.3d 276, 280 (2d Cir. 1999). In other words, “[t]he moving party is
entitled to summary judgment where ‘the plaintiff has failed to come forth with
evidence sufficient to permit a reasonable juror to return a verdict in his or her
favor’ on an essential element of a claim on which the plaintiff bears the burden of
proof.” Jean-Laurent v. Wilkerson, 461 F. App’x 18, 22 (2d Cir. 2012) (quoting In re
Omnicom Grp., Inc., Sec. Litig., 597 F.3d 501, 509 (2d Cir. 2010)).
In conducting this analysis, if there is a genuine dispute regarding the
material facts, those facts “must be viewed in the light most favorable to the
nonmoving party.” Scott v. Harris, 550 U.S. 372, 380 (2007). Although the Court
accepts as true a nonmoving party’s allegations that are supported by admissible
evidence, and also gives the nonmoving party the benefit of all reasonable doubts
and inferences, a nonmoving party’s “mere speculation and conjecture is insufficient
to preclude the granting of the motion.” Harlen Assocs. v. Inc. Vill. of Mineola,
273 F.3d 494, 499 (2d Cir. 2001). If no genuine issue of material fact exists and the
nonmoving party has had an adequate opportunity to address the issues involved by
developing facts necessary to oppose summary judgment, summary judgment is
proper. Fed. R. Civ. P. 56(e).

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II.

Failure to Exhaust
Concluding that the record presents an ambiguous account of Morales’s

efforts to complete the exhaustion process, Newton’s motion for summary judgment
should be DENIED.
Section 1997e(a) of the PLRA provides that “[n]o action shall be brought with
respect to prison conditions under section 1983 of this title, or any other Federal
law, by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” “[F]ailure to exhaust
is an affirmative defense,” Giano v. Goord, 380 F.3d 670, 675 (2d Cir. 2004) (citation
omitted); accordingly, “defendants bear the burden of proof[,] and prisoner plaintiffs
need not plead exhaustion with particularity.” McCoy v. Goord, 255 F. Supp. 2d
233, 248 (S.D.N.Y. 2003). To satisfy their initial burden, defendants must establish,
through “legally sufficient sources such as statutes, regulations, or grievance
procedures, that a grievance process exists and applies to the underlying dispute.”
Hubbs v. Suffolk Cty. Sheriff’s Dep’t, 788 F.3d 54, 59 (2d Cir. 2015) (internal
quotation marks and alteration omitted). “If the defendants meet this initial
burden, administrative remedies may nonetheless be deemed unavailable if the
plaintiff can demonstrate that other factors . . . rendered a nominally available
procedure unavailable as a matter of fact.” Id.; see also Rossi v. Fishcer, No. 13-CV3167 (PKC)(DF), 2015 WL 769551, at *4 (S.D.N.Y. Feb. 24, 2015); see also 42 U.S.C.
§ 1997e(a). With respect to a procedure’s availability, “[a] number of federal circuit
courts have held that a failure to respond to a grievance within the time limit
prescribed by the prison grievance process renders an administrative remedy

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unavailable for purposes of exhaustion,” Rossi, 2015 WL 769551, at *4 (citing cases).
However, the Second Circuit has not conclusively resolved this issue, only noting
that failing to respond to a grievance may render an administrative remedy
unavailable. See Hemphill v. New York, 380 F.3d 680, 686 n.6 (2d Cir. 2004),
abrogated on other grounds by Medina v. Napoli, 725 F. App’x 51, 53 (2d Cir. 2018).
Still, courts in the Second Circuit have generally “agreed with the proposition that
administrative remedies may be deemed unavailable when the prison fails to timely
respond to a grievance.” Rossi, 2015 WL 769551, at *5 (citing cases). This
conclusion makes sense because a prisoner who “has complied with all of the
administrative requirements and made a good-faith effort to exhaust, . . . should not
be denied the opportunity to pursue his [or her] grievance in federal court simply
because” administrative decision makers have failed to respond to the grievance.
Torres v. Carry, 672 F. Supp. 2d 338, 345 (S.D.N.Y. 2009)
In this case, viewing the record in the light most favorable to Morales, she
has submitted sufficient evidence for a reasonable factfinder to conclude that the
DOC grievance procedure was unavailable. See Hubbs, 788 F.3d at 59. The
grievance forms submitted by Morales demonstrate that she followed the four-tiered
process set forth in Directive 320.01: Morales first filed “Grievance Form #1,
Informal Complaint & Plan for Resolution Form” (Doc. 7-1), then filed “Grievance
Form #2, Offender/Inmate Grievance Submission Form” (Doc. 7-3), and finally
appealed her grievance by submitting “Grievance Form #5, Decision Appeal to
Corrections Executive” and “Grievance Form #7, Decision Appeal to Commissioner.”
(Docs. 7-5, 7-7.) At each stage, Morales waited the requisite amount of time under

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Directive 320.01 before filing the next grievance form. Further, according to
Morales, DOC administrators neither responded to these grievances, nor signed,
dated, and timed the grievance forms as required by Directive 320.01. (Doc. 49
at 6–7, ¶¶ 7–9.) Indeed, in each successive grievance, Morales asserted in writing
that she had not received a timely response to the prior grievance forms. (See Docs.
7-3–7.8.) At this stage, this evidence sufficiently demonstrates that a question of
fact exists as to Morales’s failure to exhaust.
Newton’s arguments to the contrary are not persuasive. Newtown correctly
states that “where an inmate claims that corrections officials would not process his
grievances, it does not excuse the inmate’s non-compliance with grievance
procedure ‘as [the inmate] could have re-filed any grievance or sought to appeal his
grievance when he did not receive a favorable response after attempting to file his
initial grievance.’” (Doc. 44 at 6–7 (quoting Mckinney, 170 F. Supp. 3d at 517).) But
Morales’s evidence—if credible—reveals that she did not fail to appeal her initial
grievance. Instead, after Morales was confronted by the DOC’s alleged inaction, she
proactively grieved her claim to completion. Cf. Parker v. McIntyre, No. 11–CV–
865, 2014 WL 5432153, at *3 (W.D.N.Y. Oct. 27, 2014) (“Courts repeatedly have
dismissed complaints . . . when an inmate confronted with facility inaction fails to
proactively grieve a claim to completion.” (alteration in original) (internal quotation
marks omitted)); Torres v. Carry, 691 F. Supp. 2d 366, 371 (S.D.N.Y. 2009)
(concluding that the record demonstrated that plaintiff failed to administratively
appeal his grievance). Similarly, Newton’s reliance on Turner’s affidavit does not
warrant summary judgment. Instead, Turner’s affidavit simply establishes a

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genuine factual dispute regarding whether Morales actually filed a grievance, and if
so, whether the DOC responded to the grievance. At this stage of the proceedings,
Turner’s affidavit is not sufficient for the Court to grant summary judgment
because a reasonable factfinder could conclude that a failure by the DOC to respond
to Morales’s grievance “rendered a nominally available procedure unavailable as a
matter of fact.” Hubbs, 788 F.3d at 59; see also Evans v. Jonathan, 253 F. Supp. 2d
505, 509 (W.D.N.Y. 2003) (denying defendants’ motion for summary judgment
where record contained “an ambiguous account of plaintiff’s efforts to complete the
exhaustion process”); Croswell v. McCoy, No. Civ. 9:01–CV–00547, 2003 WL 962534,
*4 (N.D.N.Y. Mar. 11, 2003) (denying summary judgment on issue of exhaustion
where the record was unclear regarding the efforts plaintiff took to exhaust his
remedies); Evans v. Nassau Cty., 184 F. Supp. 2d 238, 245 (E.D.N.Y. 2002) (question
of fact exists regarding plaintiff’s attempts to exhaust his administrative remedies).
Based on the foregoing I recommend that Newtown’s Motion for Summary
Judgment be DENIED.
III.

Motion for Appointment of Counsel
Next, concluding that the relevant factors do not weigh in Morales’s favor,

Morales’s Motion to Appoint Counsel is DENIED. (Doc. 59.)
“A party has no constitutionally guaranteed right to the assistance of counsel
in a civil case.” Leftridge v. Conn. State Trooper Officer # 1283, 640 F.3d 62, 68
(2d Cir. 2011); see also United States v. Coven, 662 F.2d 162, 176 (2d Cir. 1981).
Nevertheless, a party granted in forma pauperis status may move the Court for the
appointment of an attorney if unable to afford one on his or her own. See 28 U.S.C.

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§ 1915(e)(1). A court may ask an attorney to represent an indigent litigant under
§1915(e)(1), but Congress has not appropriated funds to pay an attorney who
accepts such an appointment. Clarke v. Blais, 473 F. Supp. 2d 124, 125 (D. Me.
2007). A court is granted “[b]road discretion” in deciding whether to grant a request
that an attorney represent a litigant pro bono. See Hodge v. Police Officers,
802 F.2d 58, 60 (2d Cir. 1986).
The Second Circuit has laid out a framework for determining whether
counsel should be appointed for in forma pauperis litigants in civil cases. Id. at 61.
First, a court must determine whether the indigent’s claim “is likely one of
substance.” Carmona v. U.S. Bureau of Prisons, 243 F.3d 629, 632 (2d Cir. 2001)
(citing Hodge, 802 F.2d at 61). “[E]ven though a claim may not be characterized as
frivolous, counsel should not be appointed in a case where the merits of the . . .
claim are thin and [the plaintiff’s] chances of prevailing are therefore poor.” Id.
(denying request for counsel where petitioner’s appeal was not frivolous but
nevertheless appeared to have little merit). Once satisfied that a plaintiff’s claims
are substantive, a court should then consider the following factors:
[T]he 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 . . . why appointment of counsel would be more likely to lead to a
just determination.
Hodge, 802 F.2d at 61–62.
In this case, the merits of Morales’s claims are thin. As noted above, this
Court has already recommended dismissing Morales’s claims against Burke for

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failure to plausibly allege that Morales engaged in constitutionally protected
conduct or that Burke unlawfully discriminated against her. (Doc. 47 at 17–23.)
Given that Morales’s claims against Newton arise from the same operative facts,
Morales’s chances of prevailing are not high. Furthermore, Morales has the
demonstrable ability to present her claims in a cogent and understandable manner.
Indeed, throughout these proceedings, Morales’s filings have demonstrated why
other inmates seek out her assistance for legal proceedings. She is plainly capable
of conducting effective legal research and presenting the results of that research in
an articulate manner, particularly because her claims are not overly complex.
Finally, although a possibility exists that Newton and MacKenzie may need to be
cross-examined to establish their roles in the purported assault and battery, it does
not appear at this early stage that the case will reach that point. Given that
Morales has proven that she can investigate the crucial facts of the case and
cogently present those facts despite being incarcerated, assigned counsel is not
necessary.
Conclusion
For the foregoing reasons, I recommend that the Court DENY Netwon’s
Motion for Summary Judgment. (Doc. 44.) Morales’s Motion for Appointment of
Counsel is DENIED. (Doc. 59.)
Dated at Burlington, in the District of Vermont, this 22nd day of
January 2019.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge

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Any party may object to this Report and Recommendation within 14 days
after service thereof, by filing with the Clerk of the Court and serving on the
Magistrate Judge and all parties, written objections which shall specifically identify
those portions of the Report and Recommendation to which objection is made and
the basis for such objections. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d),
72(b)(2); L.R. 72(c). Failure to timely file such objections “operates as a waiver of
any further judicial review of the magistrate’s decision.” Small v. Sec’y of Health &
Hum. Servs., 892 F.2d 15, 16 (2d Cir. 1989).

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