Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 2:98-CV-47.

Motions

Motion to amend : Denied

Motion to dismiss : Granted

Attorney(S)

Todd Gorton, Freehold, NJ, pro se. Nancy Goss Sheahan, McNeil, Leddy Sheahan, P.C., Burlington, VT, for Burlington Police Dept., Chittenden County, defendant. Geoffrey A. Yudien, Office of the Atty. Gen., Waterbury, VT, for Vermont Dept. of Corrections, defendant.

Judges

William K. Sessions

Acts

The Public Health And Welfare — Civil Rights — Generally — Civil Action For Deprivation Of Rights

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Smart Summary

Case Summary: Gorton v. Burlington Police Department & Vermont Department of Corrections

Factual and Procedural Background

Todd Gorton, a pro se state prisoner, brought a 42 U.S.C. § 1983 action seeking $5,000,000 in compensatory and punitive damages and release from custody, alleging verbal, sexual, and mental abuse while detained at Northwest State Correctional Facility from December 24, 1985 to August 18, 1989. Gorton entered a nolo contendere plea on December 24, 1985 to Assault, Robbery, and Attempted Sexual Assault; he was fifteen at the time and was sentenced as an adult to thirty-nine months for each conviction. On June 28, 1989 he filed a post-conviction relief petition under 13 V.S.A. § 7131, which was granted by Vermont Superior Court Judge Hilton H. Dier, Jr. on August 18, 1989, resulting in his discharge. Gorton alleges delayed revelation of harm until 1997 and contends his minor status prevented timely filing. He sued the Burlington Police Department and the Vermont Department of Corrections in federal court. Both defendants moved to dismiss under Fed. R. Civ. P. 12(b)(1) and 12(b)(6). On May 22, 1998 Gorton moved to amend the complaint to add Richard Turner and John Gorczyck as defendants.

Legal Issues Presented

Whether the Burlington Police Department is a suable entity under 42 U.S.C. § 1983.
Whether the Vermont Department of Corrections is immune from suit under the Eleventh Amendment and whether 42 U.S.C. § 1983 abrogates that immunity.
Whether Gorton's proposed amendment to add Richard Turner and John Gorczyck sufficiently alleges personal involvement to state a § 1983 claim against them in their individual capacities.
Related procedural question: disposition of pending motions to dismiss under Rules 12(b)(1) and 12(b)(6).

Arguments of the Parties

Plaintiff's Arguments

Claims of verbal, sexual, and mental abuse while incarcerated between December 1985 and August 1989, resulting in ongoing mental injury and need for counseling and therapy.
Request for $5,000,000 in compensatory and punitive damages and release from custody due to mental stress caused by incarceration.
Contends that being incarcerated as a minor and lacking education prevented timely filing within the statute of limitations.
Moved to amend complaint to name Richard Turner and John Gorczyck as defendants.

Defendants' Arguments

Burlington Police Department: moved to dismiss on grounds that a municipal police department is not a legal entity subject to suit under § 1983.
Vermont Department of Corrections: moved to dismiss on Eleventh Amendment grounds asserting state sovereign immunity; noted that § 1983 does not abrogate that immunity. The opinion notes Gorton did not oppose the Eleventh Amendment argument.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
HR v. Orleans County Sheriff's Department, No. 97-052, 1998 WL 560036 at *3 (Vt. July 28, 1998)	Supports that a municipal police department is not a legal entity subject to suit under § 1983.	Used to justify dismissal of Burlington Police Department as a non‑suable entity.
Hee v. Everlof, 812 F. Supp. 1350, 1351 (Vt. 1993)	Same proposition: police department not a suable legal entity under § 1983.	Applied to grant Burlington Police Department's motion to dismiss.
Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984)	Holds that absent consent, suit against a State or its agencies is barred by the Eleventh Amendment; § 1983 does not abrogate Eleventh Amendment immunity.	Applied to conclude the Vermont Department of Corrections (a state agency) is immune and Gorton's § 1983 claim against it is barred.
Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996)	States that a § 1983 plaintiff must allege personal involvement of defendants sued in their individual capacities.	Referenced in analyzing whether the proposed amendment adequately pleads personal involvement of Turner and Gorczyck.
Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996)	Defines personal involvement to require direct participation, failure to remedy, creation of policy/custom, or gross negligence in managing subordinates.	Used to explain the types of allegations required to hold supervisory defendants liable under § 1983.
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973))	Affirms that respondeat superior is not a basis for § 1983 liability; some showing of personal involvement is required.	Applied to deny Gorton's motion to amend because the proposed amendment did not allege personal involvement by the named individuals.

Court's Reasoning and Analysis

The court addressed each motion in turn. For the Burlington Police Department, the court held that a municipal police department is not a legal entity subject to suit under § 1983 and dismissed that defendant, citing HR and Hee. For the Vermont Department of Corrections, the court accepted the Department's Eleventh Amendment immunity argument (not opposed by Gorton), relied on Pennhurst to note that § 1983 does not abrogate state sovereign immunity, and observed that the Vermont Department of Corrections is a state agency under Vt.Stat.Ann. tit. 3, § 3002; thus the § 1983 claim against it is barred and dismissal was granted. Regarding Gorton's motion to amend, the court explained that to sue individuals in their personal capacities under § 1983 a plaintiff must plead personal involvement (direct participation, failure to remedy, policy creation, or gross negligence), and that respondeat superior is not sufficient. Because the proposed amendment alleged no specific personal involvement by Richard Turner or John Gorczyck, the amendment would be futile and was denied. The court noted that, given these dispositions, it did not reach defendants' statute-of-limitations arguments.

Holding and Implications

HOLDING: The court granted Defendant Vermont Department of Corrections' Motion to Dismiss, granted Defendant Burlington Police Department's Motion to Dismiss, and denied Plaintiff Todd Gorton's Motion to Amend. CASE DISMISSED.

Implications: The direct effect is dismissal of Gorton's § 1983 claims against the named defendants and denial of leave to add the proposed individual defendants because of inadequate allegations of personal involvement. The opinion does not announce or rely on any novel legal principle beyond the cited authorities.

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Todd GORTON, Plaintiff, v. BURLINGTON POLICE DEPARTMENT, and Vermont Department of Corrections, Defendants.

OPINION AND ORDER

SESSIONS, District Judge.

Plaintiff, Todd Gorton, ("Gorton") is a pro se state prisoner seeking relief pursuant to 42 U.S.C. § 1983. Gorton claims he was unlawfully incarcerated as a minor at the Northwest State Correctional Facility from December 24, 1985 until August 18, 1989. Gorton is suing the Burlington Police Department and the Vermont Department of Corrections for five million dollars in compensatory and punitive damages resulting from the verbal, mental and sexual abuse he allegedly suffered while an inmate during that time. Gorton also asks the Court to release him from the custody of the Commissioner of Corrections because of the mental stress he suffers while incarcerated. Pending before the Court are Defendants' Motions to Dismiss and Gorton's Motion to Amend.

I. Factual Background

On December 24, 1985, Gorton entered a plea of nolo contendere to the charges of Assault and Robbery and Attempted Sexual Assault. Gorton was fifteen years old when he allegedly committed the offenses. The Chittenden Superior Court sentenced Gorton as an adult to thirty-nine months for each conviction. On June 28, 1989, Gorton filed a petition for post-conviction relief through the Prisoner's Rights Office pursuant to 13 V.S.A. § 7131. Gorton alleged that the District Court lacked jurisdiction to convict and sentence him as an adult offender because he was a minor at the time he allegedly committed the offenses. Gorton also alleged that he did not receive effective assistance of counsel. Vermont Superior Court Judge Hilton H. Dier, Jr. granted the petition on August 18, 1989 and Gorton was discharged from custody.

Gorton alleges that while an inmate at Northwest State Correctional Facility between December 1985 and August 1989, he was subjected to verbal, sexual, and mental abuse. Gorton consequently sought protective custody status. Gorton further alleges that the abuse resulted in a diminished mental state prohibiting him from living as a normal member of society without continued counseling and therapy. He states that he did not reveal these feelings until he spoke with his wife in 1997 because he was trying to "escape reality." Furthermore, he claims that because he was incarcerated as a minor, he lacked the formal education and knowledge of the law to bring this lawsuit within the three year statutory limitation.

Gorton filed a pro se claim in this Court against the Burlington Police Department and the Vermont Department of Corrections. Both the Burlington Police Department and the Vermont Department of Corrections have filed Motions to Dismiss pursuant to rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. On May 22, 1998, Gorton filed a Motion to Amend the Complaint to add Richard Turner, Superintendent of the Northwest State Correctional Facility and John Gorczyck, Commissioner of Corrections as defendants.

II. Discussion

A. Defendant Burlington Police Department's Motion to Dismiss

Gorton is suing the Burlington Police Department for allowing him to be placed as a minor in the Northwest State Correctional Facility. A municipal police department is not a legal entity which can be sued under 42 U.S.C. § 1983. HR v. Orleans County Sheriff's Department, No. 97-052, 1998 WL 560036 at *3 (Vt. July 28, 1998); Hee v. Everlof, 812 F. Supp. 1350, 1351 (Vt. 1993). Therefore, Defendant Burlington Police Department's Motion to Dismiss (Paper 7) is granted.

B. Defendant Vermont Department of Corrections' Motion to Dismiss

The Vermont Department of Corrections has moved to dismiss this action on the grounds that as a state agency, it is immune from suit under the Eleventh Amendment. Since Gorton has not opposed this Eleventh Amendment argument, the Vermont Department of Corrections' Motion to Dismiss (Paper 11) is granted pursuant to local Rule 7.1.

Furthermore, 42 U.S.C. § 1983 does not abrogate a State's sovereign immunity. In Pennhurst State School Hospital v. Halderman, the Supreme Court stated: "in the absence of consent a suit in which the State or one of its agencies or departments is named as the defendant is proscribed by the Eleventh Amendment." Pennhurst State Sch. Hosp. v. Halderman, 465 U.S. 89, 100, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The Vermont Department of Corrections is a state agency of the Department of Human Services, pursuant to Vt.Stat.Ann. tit. 3, § 3002. Therefore, Gorton's Section 1983 claim against the Vermont Department of Corrections is barred by the Eleventh Amendment.

C. Plaintiff's Motion to Amend

Gorton has moved to amend his claim by substituting Richard Turner and John Gorczyck as defendants. In bringing a § 1983 action the Plaintiff must allege personal involvement of the defendants when suing them in their individual capacities. Koehl v. Dalsheim, 85 F.3d 86, 88 (2d Cir. 1996). An individual may not be held liable in a § 1983 action merely because he or she holds a position of authority: "[we] have construed personal involvement for these purposes to mean direct participation, or failure to remedy the alleged wrong after learning of it, or creation of a policy or custom under which unconstitutional practices occurred, or gross negligence in managing subordinates." Black v. Coughlin, 76 F.3d 72, 74 (2d Cir. 1996). The doctrine of respondeat superior is not applicable to a claim for money damages brought under § 1983; some showing of personal involvement by the defendants is required. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (citing Johnson v. Glick, 481 F.2d 1028, 1034 (2d Cir. 1973)).

Gorton makes no specific allegations against either Richard Turner or John Gorczyck in either their individual or official capacities. Nothing in the proposed amendment asserts that they were personally involved in any activity related to Gorton's claim. Therefore, Gorton's Motion to Amend (Paper 12) is denied on the ground that the amendment would be futile.

As a result of the disposition of these motions, the Court need not address Defendants' argument that the statute of limitations bars this suit.

III. Conclusion

Based on the foregoing analysis; Defendant Vermont Department of Corrections' Motion to Dismiss (Paper 11) is hereby GRANTED; Defendant Burlington Police Department's Motion to Dismiss (Paper 7) is hereby GRANTED; and Plaintiff Todd Gorton's Motion to Amend (Paper 12) is hereby DENIED. CASE DISMISSED.

GORTON v. BURLINGTON POLICE DEPT., (D.Vt. 1998)