Opinion

Thompson v. Liberty

Court: Superior Court of Maine
Filed: Jan 20, 2022
Status: Unpublished
On the bench: William R. Stokes
Cited by: 0 cases
Authority: More cited than 34.2%

"... ADA does not apply to prison employment situations ...."

How later courts described this case

"... ADA does not apply to prison employment situations ...."
possession of typewriter in prison cell would present safety and security concerns and impose an undue burden on jail personnel
"Security concerns, safety concerns, and administrative exigencies would all be important considerations to take into account."
prison inmate failed to show that he was an employee for purposes of Title I of the ADA

Written by the judges who cited it.

The opinion

STATE OF MAINE SUPERIOR COURT

KENNEBEC, SS. CIVIL ACTION

DOCKET NO. CV-18-0006

MICHAEL THOMPSON,

Plaintiff

DECISION AND ORDER ON

V. MOTION FOR SUMMARY JUDGMENT

RANDALL LIBERTY, ET ALS.,

Commissioner of the Maine

Department of Corrections,

Defendants 1

INTRODUCTION

Before the court is the Motion for Summary Judgment brought by all

Defendants except Defendant Joseph Chaplin. Throughout this Decision and Order

these Defendants will be referred to as the "Department" or "MDOC." The motion

seeks the entry of summary judgment on all counts of the Third Amended Complaint,

which is the operative complaint in this action.

Former Commissioner Joseph Fitzpatrick was originally named as a Defendant.

Current Commissioner Randall Liberty has been substituted as a Defendant in

accordance with M.R.Civ.P. 25(d)(l). Similarly, former Maine State Prison Warden

Randall Liberty was originally named as a party Defendant in that capacity. Current

Warden Matthew Magnusson has been substituted for former Warden Liberty. The

remaining Defendants are: Deputy Wardens of the Maine State Prison Troy Ross,

Robert Walden and Michael Tausek; Director of Classifications Scott McCaffery;

Maine Department of Corrections; the Maine State Prison, and; former Corrections

Officer Joseph Chaplin. All of the Defendants, with the exception of Mr. Chaplin,

are represented by the Office of the Attorney General. Mr. Chaplin is represented by

private counsel. As the court reads the Third Amended Complaint, the Plaintiff has

brought his claims against the Defendants in their official capacities, except as to

Counts 4-7 which are brought against Defendant Chaplin in his individual capacity.

The summary judgment record, and the case file in general, is voluminous.

This case has been aptly described as "sprawling." As an initial matter, the court is

compelled to point out that the Plaintiff's adherence to and compliance with the

requirements of M.R.Civ.P. 56, governing summary judgment practice, is deficient

in many respects. For example, in instances too numerous to count, the Plaintiff has

failed to present "a separate, short, and concise opposing statement." M.R.Civ.P.

56(h)(2). He routinely offers no, or inadequate record citations. He regularly adds

factual assertions and arguments without record citations, even when he has admitted

a statement of material fact made by the Department. He has commingled additional

facts, usually without sufficient record citation, in his opposing statement. Facts

contained in a supporting statement of material facts are deemed admitted "unless

properly controverted." M.R.Civ.P. 56(h)(4). Moreover, the court may disregard

any statement of fact not properly supported by a specific record citation.

The court has reviewed the entire summary judgment record and finds that the

Plaintiff's opposition to the Department's motion for summary judgment is replete

with failures to comply with Rule 56. 2 Accordingly, the court will deem as admitted

those statements of fact not properly controverted by the Plaintiff and will disregard

statements made by the Plaintiff that have not been properly supported by specific

record citations. Handlin v. Broadreach Public Relations, LLL, 2022 ME 2, 12, n.2.

The Plaintiff has also filed what is characterized as an "Objection" to the court's

consideration of certain affidavits submitted in support of the Department's motion

for summary judgment. The "Objection" consists of 14 pages of argument as to why

the court should not consider the affidavits in question. The Department describes

the objection as a motion to strike, which is explicitly not permitted by M.R.Civ.P.

56 (i)( 1). Having read the objection, it appears that most of it is based on the

Plaintiff's dissatisfaction with the Department's compliance with discovery. The

court concludes that the Plaintiff's objection is without merit and, therefore, denies

it.

In his Third Amended Complaint, the Plaintiff, Michael Thompson, an inmate

at MDOC 's correctional facilities since 1998, has set out a total of seven (7) counts.

In Count One, he asserts a cause of action of unlawful discrimination pursuant to 5

M.R.S. § 4592(1 )(E) (Maine Human Rights Act) by alleging that he was denied,

because of his disability of near blindness, "the services, programs or activities of a

public entity," i.e., MDOC.

In Count Two, Thompson asserts a cause of action of unlawful employment

discrimination pursuant to 5 M.R.S. § 4572(2) (Maine Human Rights Act) by alleging

that he was denied employment as an inmate at one or more of MDOC 's facilities

because of his visual disability.

In Count Three, Thompson asserts a claim of retaliation pursuant to 5 M.R.S.

§ 4633 by alleging that he was transferred from the Maine State Prison (MSP) to the

Maine Correctional Center (MCC) in November 2016 because he filed or was about

to file a complaint with the Maine Human Rights Commission.

In Count Four, Thompson asserts a cause of action for the violation of his civil

rights by Defendant Joseph Chaplin, a former MDOC employee, pursuant to 5 M.R.S.

4682 (Maine Civil Rights Act) and 42 U.S.C. § 1983, by alleging that Chaplin

sexually harassed him and physically assaulted him, and he seeks damages against

the MDOC Defendants "in their respective official capacities."

In Count Five, Thompson asserts a claim of sexual harassment as a form of

employment discrimination under 5 M.R.S. § 4572 (Maine Human Rights Act) and

seeks damages against the MDOC Defendants "in their respective official

capacities."

In Count Six - Negligence,3 Thompson asserts a cause of action for negligence

against Defendant Chaplin "and the remaining Defendants" and is presumably

brought pursuant to the Maine Torts Claim Act.

Finally, Count Seven of the Third Amended Complaint seeks injunctive relief.

FACTS

The following material facts, which the court determines to be undisputed, are

taken from the summary judgment record.

Thompson has been incarcerated at various MDOC facilities since 1998 and

remains so at this time. He is visually impaired. On several occasions during his

imprisonment Thompson has engaged in misconduct that resulted in disciplinary

action against him. Moreover, at various points in his incarceration Thompson has

sought a paying job at MSP and MCC, but his efforts to obtain such a paying prison

job were adversely affected by his history of misconduct, the limited number of

paying jobs available in the prison environment and his demand that he be paid at a

rate of pay more than what other inmates earned in similar jobs. Thompson alleges

that he was unlawfully denied employment while imprisoned because of his visual

disability and that MDOC failed to make reasonable accommodations for him so that

he could obtain a paying prison job.

In March 2019, Thompson was given a paid job at MCC in its recreation

department. He held that job, and other paid jobs until November 2020 (except for a

brief period when he was transferred to Mountain View Correctional Facility in July

The Third Amended Complaint is misnumbered, in that there are two causes of

action labelled Count Six. One Count Six alleges Assault and appears to be brought

solely against Defendant Chaplin "in his individual and official capacity." The other

Count Six is labelled Negligence and purports to be brought against Chaplin and the

"remaining Defendants."

2019), when he was discharged from a kitchen job for stealing sugar, an ingredient

that can be used to make alcohol.

In December 2015, Thompson was part of a special class at MSP for inmates

with disabilities who were preparing for the high school equivalency test (HiSET).

He took a large-print version of a test designed to assess his reading and math skills

and scored at an 11th grade level in reading and a 9th grade level in math. He applied

for and was granted an accommodation to take a large-print version of the HiSET

itself. Such an accommodation must be made to and approved by the private testing

company that administers the HiSET, not by MDOC. In support of his application,

Thompson submitted his personal statement and his doctor's note supporting his need

for a large-print accommodation.

Notwithstanding that accommodation, Thompson wanted to have a "reader"

someone who would read the test questions to him. Thompson's teacher at MSP

called the testing company and inquired whether he (Thompson) could be approved

for a "reader," and was told that, based on the medical information submitted by

Thompson, his vision impairment was too mild to merit a "reader" as an

accommodation. Thompson demanded to speak to the testing company himself, but

never followed up on that request. Thompson eventually stopped attending the class,

but later resumed his Hi SET preparation and passed the examination in October 2019.

In September 2016, Thompson filed a grievance because MSP would not allow

him to have a 19-inch television with a non-clear case. As a general policy, and for

security reasons, inmates at MSP and MCC (the maximum and medium security

prisons in the state) are permitted to have televisions with clear cases and have

screens no larger than 15 inches. These requirements are for security reasons, as

televisions are one of the largest items of property permitted to be possessed by

inmates and the inside of the television can be used to house weapons, drugs, and

other contraband.

MDOC officials determined that a 19-inch television would be a permissible

accommodation to Thompson, provided one could be found with a clear case. The

largest television available with a clear case was 15 inches. Accordingly,

Thompson's grievance was denied. At some later point in time, Thompson was

transferred to the minimum-security institution at Mountain View Correctional

Facility, where he was allowed to have a 19-inch television in a non-clear case. 4

On November 23, 2016, Thompson was transferred from MSP to MCC at the

recommendation and on the advice of then Assistant Attorney General Diane Sleek.

Ms. Sleek made the recommendation to transfer Thompson because she had recently

learned that Thompson might be at risk of harm from another inmate (who had

murdered another inmate at MSP), and who was still at MSP at the time. MDOC' s

Director of Classification agreed with Ms. Sleek's recommendation and Thompson

was transferred to MCC. Ms. Sleek was not aware, nor were the senior officials at

MSP aware, that Thompson had filed a complaint with the Maine Human Rights

Commission. 5

LEGAL STANDARD

Summary judgment is appropriate if, based on the parties' statements of

material fact and the cited record, there is no genuine issue of material fact, and the

moving party is entitled to a judgment as a matter of law. M.R. Civ. P. 56(c); Levine

v. R.B.K. Caty Corp., 2001 ME 77, ,r 4, 770 A.2d 653. It follows that to survive a

Thompson moved for partial summary judgment as to Count One based on his

claim that Mountain View's decision to allowed him to have a 19-inch television in

a non-clear case was an admission that was binding on the Department and that

entitled him to judgment on that portion of Count One. The court denied Thompson's

request for partial summary judgment in an Order dated December 9, 2021.

See ,r,r 256, 263-265 MDOC's Statement of Material Facts. Thompson's denials

do not comply with Rule 5 6 and the statements are deemed to be admitted because

they have not been properly controverted.

moving party's motion for summary judgment, the non-moving party must establish

a prima facie case for each of their claims and set forth specific facts showing there

is a genuine issue of material fact. Key Trust Co. of Maine v. Nasson College, 1997

ME 145,, 10, 697 A.2d 408; see also M.R. Civ. P. 56(e). As the Law Court has

recently stated: when a defendant moves for summary judgment, the defendant has

the burden of demonstrating "that there is no genuine issue of material fact and that

the undisputed facts" entitle the defendant to judgment as a matter of law. Toto v.

Knowles, 2021 ME 51, , 9. It then becomes the plaintiff's responsibility to make out

a prima facie case and show that there are disputed facts. Id. A fact is material if it

has the potential to affect the outcome of the suit. Id. To be considered "genuine,"

there must be sufficient evidence offered to raise a factual contest requiring a fact

finder to choose between competing versions of the truth. Rainey v. Langden, 2010

ME 56,, 23, 998 A.2d 342; Burdzel v. Sobus, 2000 ME 84,, 6, 750 A.2d 573. Further,

this showing "requires more than effusive rhetoric and optimistic surmise." Hennessy

v. City of Melrose, 194 F .3d 23 7, 251 (1st Cir. 1999). The Court must ignore

"conclusory allegations, improbable inferences, and unsupported speculation."

Carroll v. Xerox Corp., 294 F.3d 231, 237 (1st Cir. 2002).

DISCUSSION

Count One - Unlawfid Discrimination

Title 5 M.R.S. § 4592(l)(E) provides that unlawful discrimination includes the

following:

A qualified individual with a disability, by reason of that

disability, being excluded from participation in or being denied the

benefits ofthe services, programs or activities ofa public entity, or being

subjected to discrimination by any such entity.

Thompson claims that he was subjected to unlawful discrimination because (a) he

was not permitted to have a 19-inch non-clear case television in his cell while he was

incarcerated at MSP and MCC, and (b) he was not permitted to have a "reader" to

assist him in taking the Hi SET while at MSP.

In Scott v. Androscoggin County Jail, 2004 ME 143, ~ 19, 866 A.2d 88, the

Law Court recognized that " [e] ducational, recreational, medical and other programs

provided by a correctional facility are programs of a public entity." Citing

Pennsylvania Dep 't of Corr. v. Yeskey, 524 U.S. 206, 210 (1998) (state correctional

facility is a public entity covered by Title II of the Americans with Disabilities Act

ADA).

Moreover, because the Maine Human Rights Act mirrors the language of

similar provisions of the ADA, "it is appropriate to look to federal precedent for

guidance in interpreting the MHRA." Doyle v. Dep 't ofHuman Servs., 2003 ME 61,

~ 14 n.7, 824 A.2d 48, 52. Accordingly, Thompson must establish the following, in

order to recover under the MHRA: ( 1) that he is a qualified individual with a

disability, (2) that he was excluded from participating in or denied the benefits of the

public entity's services, programs, or activities, or otherwise discriminated against,

and (3) such exclusion, denial of benefits or discrimination was by reason of his

disability. Scott, 2004 ME 143, ~ 17. See also Parker v. Universidad de Puerto Rico,

225 F.3d 1, 5 (1st Cir. 2000). Public entities subject to Title II ofthe ADA are required

to make "reasonable modifications" to their policies, practices, or procedures when

necessary to avoid discrimination on the basis of disability. 6 Kiman v. N.H. Dep 't of

Corr. , 451 F .3d 274, 283 (1st Cir. 2006).

Finally, to be entitled to compensatory damages, Thompson must show

"intentional discrimination," namely, either a "discriminatory animus" or "deliberate

indifference." Scott, 2004 ME 143, 124. "Deliberate indifference" for purposes of

The ADA uses the term "reasonable modification," rather than "reasonable

accommodation." Nevertheless, it has been held that "these terms create identical

standards." McGary v. City ofPortland, 386 F.3d 1259, 1266 n. 3 (9th Cir. 2004).

Title II of the ADA (and the MHRA) is not the same standard that is used to evaluate

claims alleging cruel and unusual punishment under the Eighth Amendment. Rather,

in the context of the ADA and the MHRA, "deliberate indifference 'requires both

knowledge that a harm to a federally protected right is substantially likely, and a

failure to act upon that likelihood." Scott, 2004 ME 143, ~ 25 quoting Duvall v.

County ofKitsap, 260 F.3d 1124, 1138-39 (9th Cir. 2001). Moreover, when a public

entity receives a request for an accommodation/modification, it must "undertake a

fact-specific investigation" to determine "what accommodations are necessary." Id.

Under the ADA (and the MHRA) modifications or accommodations must be

"reasonable," and are not required if they would "fundamentally alter the nature of

the service, program, or activity." Kiman, 451 F.3d at 283; Kramer v. Conway, 962

F.Supp. 2d 1333, 1353 (N.D. Ga., 2013). In assessing the reasonableness of any

accommodation, the "totality of the circumstances" should be considered, including

the "reasonable requirements of effective prison administration." Gates v. Rowland

39 F.3d 1439, 1446 (9th Cir. 1994). See also Love v. Westville Corr. Ctr., 103 F. 3d

558, 561 (7th Cir. 1996) ("Security concerns, safety concerns, and administrative

exigencies would all be important considerations to take into account."); Kramer v.

Conway, 962 F.Supp. 2d at 1353 (possession of typewriter in prison cell would

present safety and security concerns and impose an undue burden on jail personnel);

James v. Va. Dep'tofCorr., 2018 U.S. Dist. LEXIS 51284, * 7 n. 4 (W.D. Va.).

Regarding the television set, the Department urges the court to follow the

holding in Aswegan v. Bruh!, 113 F.3d 109, 114 (8 1h Cir.), cert. denied sub nom.,

Aswegan v. Emmett, 522 U.S. 956 (1997), in which the court stated, without further

explanation, that the " ... cable television sought by Aswegan is not a public service,

program, or activity within the contemplation of the ADA." The holding in Aswegan,

however, has been questioned and distinguished. See Baker v. Tex. Dep 't of Crim.

Justice, 2013 U.S. Dist. LEXIS 175084 (S.D. Tex.) rejected and accepted in part,

2013 U.S. Dist. LEXIS 175079 (court not convinced that "television viewing is not

an activity covered by Title II ...."). See also Rosales v. Lavalley, 2014 U.S. Dist.

LEXIS 32499 (N.D. N.Y.) (distinguishing Aswegan).

The court need not address the general question of whether television viewing,

per se, is a service, program or activity within the scope of Title II of the ADA or the

MHRA as applied to the prison setting, because the court finds that the Department

is entitled to summary judgment on this claim on the basis that the undisputed

material facts show, as a matter of law, that the Department's actions were a

reasonable accommodation to Thompson. Specifically, MDOC officials agreed to

grant Thompson a modification from the general policy that restricted televisions to

15 inches with a clear case. For Thompson, the accommodation was to allow him to

have a 19-inch television, provided one could be found with a clear case. The

Department's search for such a television was unsuccessful, and Thompson has

produced no evidence to show that such a television was available. The Department

engaged in a fact-specific investigation into Thompson's grievance and granted him

a reasonable accommodation as required by law. Further, the Department's

insistence that any 19-inch television obtained by or for Thompson have a clear case,

was also reasonable as a matter of law. The safety and security concerns of a

maximum and minimum-security prison must be considered in evaluating the

reasonableness of the accommodation that is necessary. Here, it was eminently

reasonable for the Department to refuse to allow a non-clear case television since

such a piece of property can be, and has been, used to conceal weapons, drugs, or

other contraband. Finally, the fact that Thompson was later allowed to possess a 19

inch television with a non-clear case when he was transferred to the minimum

security facility at Mountain View is not relevant to the decisions made by officials

at MSP and MCC and does not negate the reasonableness of those decisions.

With respect to the claim that he was unlawfully discriminated against by not

being permitted to have a "reader" for the Hi SET, the undisputed material facts show

that MSP officials made inquiry of the private company that offers and administers

the test, and were told that, based on the information supplied by Thompson himself,

his vision impairment was not severe enough to warrant a "reader." Although

Thompson demanded to speak directly with the representative of the private testing

company, he never took any follow-up action to do so. Finally, Thompson was

granted a reasonable accommodation to take the HiSET, namely, the opportunity to

take the test using a large-print version. The MDOC Defendants are entitled to

summary judgment on this claim.

Count Two - Unlawful Employment Discrimination

Title 5 M.R.S. § 4572(2) provides:

A covered entity may not discriminate against a qualified

individual with a disability because of the disability of the individual in

regard to job application procedures, the hiring, advancement or

discharge of employees, employee compensation, job training and other

terms, conditions and privileges of employment. A qualified individual

with a disability, by reason of that disability, may not be excluded from

participation in or be denied the benefits of the services, programs or

activities of a public covered entity, or be subjected to discrimination by

any such covered entity relating to job application procedures, the

hiring, advancement or discharge of employees, employee

compensation, job training and other terms, conditions and privileges of

employment.

Thompson's claim of unlawful employment discrimination under the Maine

Human Rights Act fails because, as a prison inmate, he is not an employee. The

federal analog to 5 M.R.S. § 4572(2) is Title I of the ADA. The court may look for

guidance at federal precedent on the equivalent federal provisions to our state law.

See Jackson v. State, 544 A.2d 291, 296 n. 6 (Me. 1988). The federal law appears

clear that Title I of the ADA "does not apply to the employment of prisoners." Starry

v. Oshkosh Corr. Inst., 731 Fed. Appx. 517,519 (7th Cir. 2018). See also Positano v.

Commonwealth Dep 't of Corr., 2018 U.S. Dist. LEXIS 83351 (M.D. Pa) ("prison

inmates are not considered employees under Title I and are, thus, not entitled to that

Title's protections"). Accord White v. Colorado, 82 F.3d 364, 367 (1 oth Cir. 1996)

("... ADA does not apply to prison employment situations ...."); Battle v. Minn.

Dep 't ofCorr., 40 Fed. Appx., 308,310 (8th Cir. 2002) (prison inmate failed to show

that he was an employee for purposes of Title I of the ADA).

These holdings are consistent with the language of Maine's Human Rights Act

- 5 M.R.S. § 4572(2). For example, for purposes of the Fair Employment subchapter

of the MHRA ( subchapter 3 ), the term "covered entity means an employer,

employment agency, labor organization or joint labor-management committee." 5

M.R.S. § 4553(1-B). Similarly, an "employee means an individual employed by an

employer." 5 M.R.S. § 4553(3). Finally, an "employer includes any person in this

State employing any number of employees ...." 5 M.R.S. § 4553(4).

The federal precedent under Title I of the ADA and the explicit language of

the Maine Human Rights Act, leads the court to conclude that the unlawful

employment discrimination provisions of 5 M.R.S. § 4572(2) do not apply in the

context of prison jobs for incarcerated individuals.

Nevertheless, in his opposition to MDOC's motion for summary judgment,

Thompson has suggested that Count Two is based on 5 M.R.S. § 4592(1)(E), relating

to "programs, services or activities" of a public entity. As pointed out by the MDOC

Defendants, however, this is not the legal theory advanced by Thompson in his Third

Amended Complaint. Moreover, the argument that a prison job is a "program, service

or activity" within the meaning of Title II of the ADA (or the MHRA) has been

rejected. See Neisler v. Tuckwell, 807 F.3d 225, 227 (7th Cir. 2015) ("Title II of the

ADA does not cover a prisoner's claim that he suffered workplace discrimination on

the basis of a disability"). The majority view is that Title I of the ADA "is the

exclusive remedy under the Act for claims of disability discrimination in

employment." Id. See also Reyazuddin v. Montgomery Cnty., 789 F.3d 407,420 (4th

Cir. 2015 (collecting cases). Compare Positano v. Commonwealth Dep 't of Corr.,

2018 U.S. Dist. LEXIS 83351, * 26 (M.D. Pa) ( distinguishing Neisler v. Tuckwell on

the ground that a prison canine obedience training program was a "vocational"

program, not prison employment, and therefore was a "program" under Title II of the

ADA).

For the foregoing reasons, the MDOC Defendants are entitled to summary

judgment on Count Two of the Third Amended Complaint.

Count Three - Retaliation

Title 5 M.R.S. § 4633(1) provides:

A person may not discriminate against any individual because that

individual has opposed any act or practice that is unlawful under this

Act [MI-IBA] or because that individual made a charge, testified,

assisted or participated in any manner in an investigation, proceeding or

hearing under this Act.

Thompson alleges that in September 2016 he was preparing and planning to

file (and did file) a complaint with the Maine Human Rights Commission

(Commission) regarding his inability to get a paying job at MSP and his alleged

denial to meaningful access to the HiSET because of his visual impairment. In

November 2016, Thompson was transferred from MSP to the medium-security

facility at MCC. The transfer occun-ed approximately 6 days after then Assistant

Attorney General Diane Sleek learned of information that created a significant risk

of harm to Thompson from another inmate who was still at MSP. Thompson asserts

that his transfer was in retaliation for filing his complaint with the Commission two

months earlier.

The Law Court has held that in order to make out a retaliation claim under the

MHRA, a plaintiff must show that he engaged in "protected activity", that he suffered

"adverse action," and that "there was a causal link" between the two. Doyle v. Dep 't

ofHuman Servs., 2003 ME 61,120, 824 A.2d 48 quoting Bard v. Bath Iron Works

Corp., 590 A.2d 152, 154 (Me. 1991). If the adverse action occurs in "close

proximity" to the protected activity, the burden shifts to the defendant "to produce

some probative evidence to demonstrate a nondiscriminatory reason for the adverse

... action." DiCentes v. Michaud, 1998 ME 227, 1114-16, 719 A.2d 509, 514-15.

Once such evidence of a nondiscriminatory reason for the action has been presented,

the burden remains with the plaintiff to show that there was, "in fact," a causal

connection between the protected activity and the adverse action. Id.

The court agrees with the MDOC Defendants that Thompson has produced no

admissible evidence to show any causal connection between his filing of a complaint

with the Commission and his transfer to MCC, even assuming that such a transfer

should be considered an "adverse action," and further assuming that the 2-month

period between the September 2016 submission of the complaint and the November

2016 transfer was in "close proximity." The MDOC Defendants have produced

admissible evidence showing that the transfer was initiated by MDOC's legal

counsel, who had unexpectantly learned that Thompson's safety might be in

jeopardy. Thompson, for his part, has produced no admissible evidence to suggest

that Ms. Sleek' s concerns, and those of officials with MDOC and MSP, were

pretextual. As a matter of law, Thompson has failed to show any causal connection

between the filing of his complaint with the Commission and his transfer to MCC.

Accordingly, the MDOC Defendants are entitled to summary judgment on Count

Three of the Third Amended Complaint.

Count Four - Denial o[Civil Rights

Thompson alleges that he was subjected to sexual harassment, invasion of

privacy and assault, and thereby denied his rights as protected under both the United

States and Maine Constitutions, because of conduct allegedly engaged in by

Defendant Chaplin. Chaplin has been sued in his individual capacity, while the

MDOC Defendants have been sued in their official capacities only. Count Four has

been brought pursuant to 42 U.S.C. § 1983 and 5 M.R.S. 4682(1-A) (MCRA).

The Law Court has clearly held that "[a] state, including a state official in his

or her official capacity, is not a person within the meaning of§ 1983 or the MCRA .

. . ." Doe Iv. Williams, 2013 ME 24, ~ 74, 61 A.3d 718. All the MDOC Defendants

are either state agencies or state officials sued in their official capacities. Thus,

Thompson's claim for monetary damages under§ 1983 and the MCRA fails to state

a claim and, as a matter of law, the MDOC Defendants are entitled to summary

judgment on Count Four of the Third Amended Complaint.

Count Five - Sexual flarassment in Employment

Title 5 M.R.S. § 4572(1)(A) provides that it 1s unlawful employment

discrimination "[fJor any employer to ... discriminate with respect to ... terms,

conditions or privileges of employment or any other matter directly or indirectly

related to employment ... because of ... [the employee's] ... sex ...." See Johnson

v. York Hosp., 2019 ME 176, ~ 17, 222 A.3d 624. In Count Five of his Third

Amended Complaint Thompson asserts that Defendant Chaplin's alleged conduct of

sexually harassing and assaulting him constituted discrimination in employment,

since the actions of Chaplin are alleged to have occurred while Thompson held an

unpaid job as a recreational worker at MSP.

Thompson's claim of sexual harassment in employment, however, fails for the

same reason his claim of disability-based discrimination in employment fails under

Count Two, namely, he was not an employee. Summary judgment will be entered

for the MDOC Defendants on Count Five of the Third Amended Complaint.

Count Six - Negligence

Thompson alleges, in Count Six of his Third Amended Complaint, that the

"negligence of Defendant ... Chaplin and the remaining Defendants" caused him to

suffer the "physical injury, mental and emotional distress" described in his complaint.

Presumably, this count purports to be brought pursuant to the Maine Tort Claims Act.

The undisputed material facts show, as a matter of law, that Thompson's negligence

claim against the MDOC Defendants, as state agencies or state officials sued in their

official capacities, does not fall within any exception to the State's immunity from

tort liability. See 14 M.R.S. §§ 8103, 8104-A. Moreover, there is no genuine issue

of material fact that Thompson failed to comply with the notice of claim requirements

of 14 M.R.S. 8107. Summary judgment, therefore, must be granted to the MDOC

Defendants on Count Six of the Third Amended Complaint.

Count Seven - lniunctive Relief

The court agrees with the MDOC Defendants that Thompson's claim for

injunctive relief is moot. Thompson's claim to a 19-inch television set with a non

clear case does not justify any injunctive relief because he is now housed in a

minimum-security facility, which has provided him with such a television.

Moreover, Thompson has passed the Hi SET. At this point, any injunctive relief the

court could grant would be advisory in nature and would have no meaningful effect.

See Fordv. Bender, 768 F.3d 15, 29 (Pt Cir. 2014).

CONCLUSION

The entry is:

The Motion for Summary Judgment filed by the MDOC Defendants is

GRANTED. Judgment is entered in favor of the MDOC Defendants and against the

Plaintiff on all counts of the Third Amended Complaint.

The clerk is directed to incorporate these orders into the civil docket of this

case by notation reference in accordance with M.R.Civ.P. 79(a).

DATED: Januaiy 20, 2022

William R. Stokes

Justice, Maine Superior Court

Entered on the docket_J_/ 2 p J6 u:;2.2.

MICHAEL THOMPSON - PLAINTIFF SUPERIOR COURT

MAINE STATE PRISON 807 CUSHING ROAD KENNEBEC, ss.

WARREN ME 04864 Docket No AUGSC-CV-2018-00006

Attorney for: MICHAEL THOMPSON

VANESSA A BARTLETT - RETAINED

LAW OFFICE OF VANESSA A BARTLETT DOCKET RECORD

PO BOX 162

PORTLAND ME 04112-0162

Attorney for: MICHAEL THOMPSON

ANDREWS B CAMPBELL - RETAINED

CAMPBELL LAW

PO BOX 119

BOWDOINHAM ME 04008

JOSEPH FITZPATRICK - DEFENDANT

807 CUSHING ROAD

WARREN ME 04864

Attorney for: JOSEPH FITZPATRICK

JASON THEOBALD - WITHDRAWN 12/18/2018

CURTIS THAXTER LLC

PO BOX 7320

ONE CANAL PLAZA SUITE 1000

PORTLAND ME 04112-7320

Attorney for: JOSEPH FITZPATRICK

JAMES FORTIN - WITHDRAWN 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: JOSEPH FITZPATRICK

JONATHAN R BOLTON - RETAINED

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL STREET

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: JOSEPH FITZPATRICK

ALISA ROSS - RETAINED 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

RANDALL LIBERTY - DEFENDANT

807 CUSHING ROAD

WARREN ME 04864

Attorney for: RANDALL LIBERTY

JASON THEOBALD - WITHDRAWN 12/18/2018

CURTIS THAXTER LLC

PO BOX 7320

ONE CANAL PLAZA SUITE 1000

PORTLAND ME 04112-7320

Page l of 29 Printed on: 01/25/2022

AUGSC-CV-2018-00006

DOCKET RECORD

Attorney for: RANDALL LIBERTY

JAMES FORTIN - WITHDRAWN 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: RANDALL LIBERTY

JONATHAN R BOLTON - RETAINED

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL STREET

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: RANDALL LIBERTY

ALISA ROSS - RETAINED 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

TROY ROSS - DEFENDANT

807 CUSHING ROAD

WARREN ME 04864

Attorney for: TROY ROSS

JASON THEOBALD - WITHDRAWN 12/18/2018

CURTIS THAXTER LLC

PO BOX 7320

ONE CANAL PLAZA SUITE 1000

PORTLAND ME 04112-7320

Attorney for: TROY ROSS

JAMES FORTIN - WITHDRAWN 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: TROY ROSS

JONATHAN R BOLTON - RETAINED

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL STREET

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: TROY ROSS

ALISA ROSS - RETAINED 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

ROBERT WALDEN - DEFENDANT

807 CUSHING ROAD

WARREN ME 04864

Page 2 of 29 Printed on: 01/25/2022

AUGSC-CV-2018-00006

DOCKET RECORD

Attorney for: ROBERT WALDEN

JASON THEOBALD - WITHDRAWN 12/18/2018

CURTIS THAXTER LLC

PO BOX 7320

ONE CANAL PLAZA SUITE 1000

PORTLAND ME 04112-7320

Attorney for: ROBERT WALDEN

JAMES FORTIN - WITHDRAWN 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: ROBERT WALDEN

JONATHAN R BOLTON - RETAINED

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL STREET

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: ROBERT WALDEN

ALISA ROSS - RETAINED 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

ANTHONY CANTILLO (SUBSTITUTED) - DEFENDANT

807 CUSHING ROAD

WARREN ME 04864

Attorney for: ANTHONY CANTILLO (SUBSTITUTED)

JASON THEOBALD - WITHDRAWN 12/18/2018

CURTIS THAXTER LLC

PO BOX 7320

ONE CANAL PLAZA SUITE 1000

PORTLAND ME 04112-7320

Attorney for: ANTHONY CANTILLO (SUBSTITUTED)

JONATHAN R BOLTON - RETAINED

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL STREET

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: ANTHONY CANTILLO (SUBSTITUTED)

JAMES FORTIN - WITHDRAWN 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Page 3 of 29 Printed on: 01/25/2022

AUGSC-CV-2018-00006

DOCKET RECORD

Attorney for: ANTHONY CANTILLO (SUBSTITUTED)

ALISA ROSS - RETAINED 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

DEPARTMENT OF CORRECTIONS - DEFENDANT

807 CUSHING ROAD

WARREN ME 04864

Attorney for: DEPARTMENT OF CORRECTIONS

JASON THEOBALD - WITHDRAWN 12/18/2018

CURTIS THAXTER LLC

PO BOX 7320

ONE CANAL PLAZA SUITE 1000

PORTLAND ME 04112-7320

Attorney for: DEPARTMENT OF CORRECTIONS

JAMES FORTIN - WITHDRAWN 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: DEPARTMENT OF CORRECTIONS

JONATHAN R BOLTON - RETAINED

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL STREET

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: DEPARTMENT OF CORRECTIONS

ALISA ROSS - RETAINED

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

MAINE STATE PRISON - DEFENDANT

Attorney for: MAINE STATE PRISON

JAMES FORTIN - WITHDRAWN 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: MAINE STATE PRISON

JONATHAN R BOLTON - RETAINED

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL STREET

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Page 4 of 29 Printed on: 01/25/2022

AUGSC-CV-2018-00006

DOCKET RECORD

Attorney for: MAINE STATE PRISON

ALISA ROSS - RETAINED 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

JOSEPH CHAPLIN - DEFENDANT

100 REEF ROAD

WALDOBORO ME 04572

Attorney for: JOSEPH CHAPLIN

MARTIN RIDGE - RETAINED

BEAGLE STEEVES & RIDGE LLC

10 MOULTON STREET

PORTLAND ME 04101

Attorney for: JOSEPH CHAPLIN

JONATHAN R BOLTON - RETAINED

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL STREET

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

BENJAMIN BEAL (SUBSTITUTED) - DEFENDANT

Attorney for: BENJAMIN BEAL (SUBSTITUTED)

JONATHAN R BOLTON - RETAINED 07/13/2020

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL STREET

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

BENJAMIN BEAL (SUBSTITUTED) - DEFENDANT

Attorney for: BENJAMIN BEAL (SUBSTITUTED)

JAMES FORTIN - WITHDRAWN 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: BENJAMIN BEAL (SUBSTITUTED)

JONATHAN R BOLTON - RETAINED

ATTORNEY GENERAL OFFICE OF AG

111 SEWALL STREET

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Attorney for: BENJAMIN BEAL (SUBSTITUTED)

ALISA ROSS - RETAINED 07/01/2019

OFFICE OF THE ATTORNEY GENERAL

6 STATE HOUSE STATION

AUGUSTA ME 04333-0006

Page 5 of 29 Printed on: 01/25/2022

STATE OF MAINE SUPERIOR COURT

KENNEBEC, SS. CIVIL ACTION

DOCKET NO. CV-18-0006

MICHAEL THOMPSON,

Plaintiff

DECISION AND ORDER ON

V. PLAINTIFF'S PENDING MOTIONS

RANDALL LIBERTY, ET ALS.,

Commissioner of the Maine

Department of Corrections,

Defendants 1

Before the court for resolution are two motions brought by the Plaintiff,

Michael Thompson (Thompson), described as follows:

1. Motion for Partial Summary Judgment and for Temporary Restraining

Order or Preliminary Injunction dated March 4, 2021;

2. Motion for Sanctions dated March 4, 2021.