Blatt v. Touchette ( 2019 )

Blatt v. Touchette, No. 286-5-19 Wncv (Tomasi, J., Sept. 17, 2019).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]
STATE OF VERMONT
SUPERIOR COURT CIVIL DIVISION
Washington Unit Docket No. 286-5-19 Wncv
Samuel Blatt,
Plaintiff
v.
Michael P Touchette,
Corey Wykel,
Defendants
Plaintiff has brought a number of claims against a number of defendants. It
appears, however, that he has effected service only on Defendant Michael
Touchette, in his official capacity as Commissioner of the Vermont Department of
Corrections. Defendant Touchette has moved to dismiss the action asserting that
he is not a proper defendant in this matter under federal or state law. The Plaintiff
opposes the motion to dismiss. The Court makes the following determinations.
I. The Federal Constitutional Claims
Plaintiff has asserted what amount to claims for deprivations of his
constitutional rights under the United States Constitution. Such claims must be
brought pursuant to 42 U.S.C. § 1983. As Defendant correctly argues, however, a
constitutional claim for retrospective money damages against a state official in his
official capacity cannot be maintained under Section 1983. The United States
Supreme Court has made clear that a state official in his “official capacity” is not “a
person” subject to suit under Section 1983. Will v. Michigan, 491 U.S. 58, 71 (1989);
Edelman v. Jordan, 415 U.S. 651, 663-65 (1974); accord J. Endres v. Ne. Ohio Med.
Univ., No. 18-3825, 2019 WL 4125263, at *10 (6th Cir. Aug. 30, 2019) (“state
defendants acting in their official capacities are not ‘persons’ under § 1983 with
respect to claims for monetary damages”).1
The federal claims against Defendant Touchette in his official capacity are
dismissed.
II. The State Tort Claims
Plaintiff also has brought tort claims against Defendant Touchette.
Defendant Touchette argues that he may not be sued for torts in his official capacity
and that the proper defendant is the State of Vermont. The Court agrees.
Under the Vermont Tort Claims Act (VTCA), the State has waived sovereign
immunity and allowed itself to be sued for the torts allegedly committed by its
employees. See 12 V.S.A. §§ 5601-06. Per the VTCA, however, the proper
defendant in such an action is the State itself, not the state employees in their
official capacities.
While a suit against a state official is sometimes viewed as a case against the
State for constitutional purposes, see, e.g., Kentucky v. Graham, 473 U.S. 159, 166
(1985), that is not the case with the VTCA. First, the language of the statute favors
that result. Section 5602(b) expressly provides that, for a claim alleging a tort
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A plaintiff may sue a state official under Section 1983 to obtain forward-looking
injunctive relief. Ex Parte Young, 209 U.S. 123, 159-60 (1908). It does not appear
to the Court that Plaintiff has sought such a remedy in this case.
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committed by a state employee, “the exclusive right of action shall lie against the
State of Vermont; and no such action may be maintained against the employee.”
Second, persuasive interpretations of the Federal Tort Claims Act (FTCA)
support that conclusion. The VTCA is “modeled” after the FTCA, Andrew v. State,
165 Vt. 252, 258 (1996), and Vermont often finds instructive decisions interpreting
the VTCA’s federal counterpart, Lane v. State, 174 Vt. 219, 224 (2002). Rulings
interpreting the FTCA have made plain that “a plaintiff may not bring tort claims
against federal officials in their official capacities or against federal agencies; the
proper defendant is the United States itself.” Coulibaly v. Kerry, 213 F. Supp. 3d
93, 125 (D.D.C. 2016). Accord Kennedy v. U.S.P.S., 143 F.3d 1077, 1078 (9th Cir.
1998); Robinson v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994);
Woods v. U.S., 720 F.2d 1451, 1452 n. 1 (9th Cir. 1983); Molina v. Wise Cty., Texas,
No. 4:17-CV-809-Y, 2019 WL 802060, at *2 (N.D. Tex. Feb. 21, 2019); Lewis v. U.S.,
No. 18-3423, 2018 WL 3619443, at * 2 (E.D. La. July 30, 2018); Woodard v. United
States, No. 1:17-cv-174, 2018 WL 4517624, at * 7 (E.D. Tex. Aug. 31, 2018), rep. and
rec. adopted, 2018 WL 4517495 (E.D. Tex. Sep. 19, 2018); Briscoe v. U.S., 268 F.
Supp. 3d 1, 5 (D.D.C. 2017); Piechowicz v. U.S., 685 F. Supp. 486, 493 (D. Md. 1988);
Francis v. U.S., No. 07-6125 JSW, 2008 WL 4447703, at *4 (N.D. Cal. Sept. 30,
2008), aff'd, 376 F. App’x 792 (9th Cir. 2010) -- (all dismissing official capacity
claims under FTCA on same ground).
The tort claims against Defendant Touchette in his official capacity are
dismissed.
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III. The Remaining Claims
Defendant Touchette asks the Court to address whether claims against him
in his individual capacity might also be subject to dismissal under various legal
theories. As he has not yet been served in his individual capacity, the Court
believes any such exercise would amount to an improper advisory opinion.
Additionally, Plaintiff has yet to effect service on the remaining individual
defendants and, in light of this opinion, may wish to amend his Complaint to seek
relief directly against the State. The Court expresses no views on whether such an
amendment would be allowed or whether such a claim would be successful.
IV. Conclusion
Based on the foregoing, the Motion to Dismiss the claims against Defendant
Touchette in his official capacity is granted.
Dated this 13th day of September, 2019, in Montpelier, Vermont.
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Timothy B. Tomasi
Superior Court Judge
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