Petition for Writ of Certiorari — Christopher Daniel Everson, Petitioner v. Theresa Lantz, et al.

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Case 21-17, Document 44, 04/28/2021, 3088857, Pagel of 1

D. Conn.

20-cv-885

Covello, J.

United States Court of Appeals

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square,

in the City of New York, on the 27th day of April, two thousand twenty-one.

Present:

Robert D. Sack,

Raymond J. Lohier, Jr.,

Richard J. Sullivan,

Circuit Judges.

Christopher Daniel Everson,

Plaintiff-Appellant,

21-17

Theresa Lantz, Commissioner of Corrections, et al.,

Defendants-Appellees.

Appellees move to dismiss the appeal as untimely filed and for summary affirmance. Upon due

consideration, it is hereby ORDERED that the motion to dismiss as untimely is DENIED, but the

motion for summary affirmance is GRANTED because the appeal “lacks an arguable basis either

in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989); see also Fed. R. App. P.

26(a)(3).

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

Case 3:20-cv-00885-AVC Document 18 Filed 12/01/20 Page 1 of 1

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

CHRISTOPHER EVERSON,

Plaintiff

CASE NO. 3:20-cv-00885 (AVC)

THERESA LANTZ, COMMISSIONER OF

CORRECTIONS, JOHN ARMSTRONG,

NELVIN LEVESTER, and ROBERT

CARBONE

Defendants.

JUDGMENT

This action having come before the Court for consideration of the defendants

motion to dismiss, before the Honorable Alfred V. Covello, United States District Judge;

and

The Court having considered the motion and the full record of the case including

applicable principles of law, and having granted the defendants’ motion to dismiss on

November 30, 2020, it is hereby,

ORDERED, ADJUDGED and DECREED that judgment be and is hereby entered

in favor of the defendants.

Dated.at Hartford, Connecticut, this 1st day of December,. 2020.

ROBIN D. TABORA, Clerk

By: 1st Michael Bozek

Michael Bozek

Deputy Clerk

Entered on Docket: 12/1/2020

Case 3:20-cv-00885-AVC Document 17 Filed 11/30/20 Page 1 of 11

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

CHRISTOPHER EVERSON,

plaintiff,

Civil No. 3:20cv885(AVC)

THERESA LANTZ, et al. ,

defendants.

Ruling on the Defendants' Motion to Dismiss

This is an action for damages in which the plaintiff,

Christopher Everson, alleges that the defendants, Connecticut

Department of Correction (hereinafter "DOC") employees,

terminated his employment with the DOC in violation of his

constitutional rights.

1983.1

It is brought pursuant to 42 U.S.C. §

The defendants have filed a motion to dismiss based on,

inter alia, the doctrine of res judicata, because Everson has

filed two previous cases against these defendants.

For the

reasons that follow, the court concludes that Everson's prior

cases preclude the claims in this case.

FACTS

The complaint and the court's public docket records2 reveal

the following facts.

1 42 U.S.C. § 1983 provides in relevant part: "Every person who, under color

of any statute, ordinance, regulation, custom, or usage, of any State . . .

subjects, or causes to be subjected, any citizen of the United States . . .

to the deprivation of any rights, privileges, or immunities secured by the

Constitution and laws, shall be liable to the'party injured in an action at

law, suit in equity, or other proper proceeding for redress."

2 Federal Rule of Evidence 201 provides that the court may take judicial

notice of facts that "[are] not subject to reasonable dispute because [they]:

Case 3:20-cv-00885-AVC Document 17 Filed 11/30/20 Page 2 of 11

On March 5, 2004, Everson flled~a~compl-a-i-n-t_i.n__t_his court.

Everson v. Lantz, et al., 3:04cv387(RNC). In that case, Everson

claimed that the same defendants named in the within action,

violated his constitutional rights when they terminated his

employment with the DO'C.

On September 30, 2006, the court granted the defendants'

motion for summary judgment in part and rendered judgment for

the defendants on Everson's due process and "class of one" equal

protection claims.

On May 5, 2008, the defendants filed a

supplemental motion for summary judgment.

On February 4, 2009,

the court granted the motion, rendered judgment in favor of the

defendants and closed the case.

On March 2, 2009, Everson appealed the court's judgment and

on July 13, 2009, the second circuit dismissed the appeal.

On October 14, 2009, Everson filed a petition for writ of

certiorari to the U.S. Supreme Court.

Court denied the petition.

On October 4, 2010, the

On November 15, 2011, the Court

denied Everson's October 18, 2010 petition for rehearing.

(1) [are] generally known within the trial court's territorial

jurisdiction; or

(2) can be accurately and readfly determined from sources whose

accuracy cannot reasonably be questioned.

Fed. R. Evid. 201; see also Kramer v. Time Warner, 937 F.2d 767, ' 773 (2d Cir.

1991).

Case 3:20-cv-00885-AVC Document 17 Filed 11/30/20 Page 3 of 11

. '%

On January 19, 2016,

court.

ivers'on—f-i-l-ed—a—s.e.c.ond lawsuit in this

Everson v. Semple, et al., 3:16cv00077(RNC).

was based on the facts alleged in the first case.

That case

On September

16, 2016, the court approved and adopted the magistrate judge's

decision dismissing the case on res judicata grounds.

On October 4, 2016, Everson appealed the court's judgment

in the second case.

On November 1, 2017, the second circuit dismissed that

appeal.

On January 20, 2018, Everson filed a petition for writ of

certiorari to the U.S. Supreme Court regarding the second case

and on April 16, 2018, Court denied the petition. On June 11,

2018, the Court denied Everson's May 8, 2018 petition for

rehearing.

On July 27, 2018, Everson filed a motion for relief from

judgment in the first case. On March 25, 2019, the court denied Everson's motion,

brought pursuant .to rule 60(b), and on April 4, 2019, Everson

filed another appeal.

On September 25, 2019, the second circuit

dismissed the appeal.

The court concluded that the appeal

lacked "an arguable basis in law or fact."

Everson filed

another petition for a writ of certiorari to the Supreme Court,

which, on January 13, 2020, the Court denied.

Case 3:20-cv-00885-AVC Document 17 Filed 11/30/20 Page 4 of 11

On April 6, 2020, Everson filed a motion to vacate the

final judgment in the first case.

That motion remains pending

in that case.

On June 25, 2020, Everson filed the complaint in this case.

On July 21, 2020, he filed an amended complaint.

In the amended complaint, Everson states that "[t]his is an

[i]ndependent [ajction to obtain relief from a judgment in a

prior lawsuit,

Rule 60(d)(1)

[pjursuant to Federal Rules of Civil Procedure

He maintains that "[t]his [i]ndependent

action is to impeach and vacate a prior decree and judgment."

Everson makes reference to "the original action" entitled

Everson v. Lance, et al, 3:04cv387(RNC).

STANDARD

A court must grant a motion to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6), if a plaintiff fails to

establish a claim upon which relief may be granted.

Such a

motion "asses (es) the legal feasibility of the complaint,

does] not .

[it

. assay the weight of the evidence which might be

offered in support thereof."

Ryder Energy Distribution Corp. v.

Merrill Lynch Commodities, Inc., 748 F.2d 774, 779 (2d Cir.

1984) .

When ruling on a 12(b)(6) motion, the court must "accept

the facts alleged in the complaint as true, and draw all

reasonable inferences in favor of the plaintiff."

Broder v.

Cablevision Sys. Corp., 418 F.3d 187, 196 (2d Cir. 2005).

Case 3:20-cv-00885-AVC Document 17 Filed 11/30/20 Page 5 of 11

order to survive a motion to dismiss, the complaint must allege

"enough facts to state a claim to relief that is plausible on

its face."

(2007) .

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

The complaint must allege more than "[t]hreadbare

recitals of the elements of a cause of action, supported by mere

conclusory statements."

(2009) .

Ashcroft v. Iqbal, 556 U.S. 662, 678

The court may consider only those "facts stated on the

face of the complaint, in documents appended to the complaint or

incorporated'in the complaint by reference, and to matters of

which judicial notice may be taken."

Allen v. WestPoint-

Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991).

DISCUSSION

The defendants argue, inter alia, that Everson's claims are

barred by the doctrine of res judicata.3

Specifically, the

defendants state that the claims in Everson's two prior lawsuits

are based on the same facts as the instant case and those claims

have been fully litigated.

With respect to Everson's argument

that the court improperly failed to consider certain

"comparators" in dismissing the equal protection claims, the

defendants aver that such an argument could have been made in a

3 The defendants also argue that the claims in this case are barred by the

doctrine of collateral estoppel, the three year statute of limitations

applicable to 42 U.S.C. § 1983 claims, the Eleventh Amendment, and the fact

that Everson failed to properly serve the complaint on the individual

defendants. Because the court concludes that the case is barred by the

doctrine of res judicata, it does not reach these additional arguments.

Case 3:20-cv-00885-AVC Document 17 Filed 11/30/20 Page 6 of 11

prior case.

The defendants cite the fact that this case

involves the same parties and underlying claims as the prior

cases and the facts here satisfy the standard for application of

the doctrine of res judicata.

Everson argues in opposition that in this case he "pleads a

direct attack upon the final judgment of the original lawsuit"

and "that the final judgment and decision was 'wrong on the

merits, by accident or mistake. I u 4 He states that he "has no

other available or adequate remedy and the plaintiffs' own

fault, neglect or carelessness did not create the situation for

which he seeks equitable relief."

According to Everson, "[t]his

Independent Action does not plead the same claims and issues as

the prior 1983 tort action; as outlined in Paragraphs 29 through

46 of the Independent Action, the plaintiff here seeks equitable

relief, the cause of action is:

'if the truth and evidence of

the matter had been examined, the result of the judgment would

have been different .

/ ir

He argues that he is not

attempting to "re-litigate" claims from previous lawsuits and

that "res judicata does not preclude a litigant from making a

direct attack .... upon the judgment before the court which

rendered the judgment."

He cites Weldon v. United States, 70

4 He states that the "final judgment did in fact overlook and not mention or

examine any of the plaintiffs’ named comparators, and the plaintiff is

entitled to offer evidence to support his claim that the final judgment was

'wrong on the merits by result of accident or mistake. f n

Case 3:20-cv-00885-AVC Document 17 Filed 11/30/20 Page 7 of 11

F.3d 1, 5 (2d Cir. 1995), .Campaniello Imports Ltd. V. Saporiti

Italia, S.p.A., 117 F.3d 655, 662-663 (2d Cir. 1997), and "rule

60(b)'s 'savings clause. t II

Everson reiterates that he "did.in

fact exercise all proper diligence in the original action" and

states that the fact that DOC officials withheld his mail5 left

Everson "effectively unable to protect his appeal or monitor his

appeal."

Pursuant to the doctrine of res judicata, "[a] final

judgment on the merits of an action precludes the parties or

their privies from relitigating issues that were or could have

been raised in that action."

399 (2d Cir. 2000)

St. Pierre v. Dyer, 208 F.3d 394,

(quoting Federated Dept. Stores, Inc, v.

Moitie, 452 U.S. 394, 399 (1981)); Monahan v, N.Y. City Dep't of

Corr., 214 Fi3d 275, 284 (2d Cir. 2000).

judicata

\> X

Therefore, res

bar[s] litigations between the same parties if the

-claims in the later litigation arose -from the same transaction6

5 He notes that he was incarcerated at the time the court issued its opinion

dismissing the original 2004 case and did'” not receive it until approximately

7 days prior to the date on which a motion for reconsideration was due.

Everson points out that he did not receive the judgment in that case until

after the time a motion for reconsideration was due. He states he requested

an extension of time to appeal and that the DOC was holding his legal mail.

Everson states that he had to resort to sending legal mail to his parents

address in order to avoid the problem with the DOC holding his mail, which

caused significant delays. With respect to the second case he filed in 2016,

Everson states that he meant to file it as a request to set aside the

judgment in the original 2004 case, pursuant to 28 U.S.C. sec. 1651(a). In

2012, Everson hired an attorney who had health problems and subsequently

passed away. He avers this attorney was handling Everson's employment case

from 2012-2015.

6 The term W X transaction' refers to a 'common nucleus of operative facts. / n

AmBase Corp. v. City Investing Liquidating Trust, 326 F.3d 63, 73 (2d Cir.

Case 3:20-cv-00885-AVC Document 17 Filed 11/30/20 Page 8 of 11

that formed the basis of the prior adjudication.

f tt

AmBase

Corp. v. City Investing Liquidating Trust, 326 F.3d 63, 73 (2d

Cir. 2003)

(quoting Maldonado v. Flynn, 417 A.2d 378, 381 (Del.

Ch. 1980) ) .

The second circuit has recognized "the well-

established rule that a plaintiff cannot avoid the effects of

res judicata by 'splitting' his claim into various suits, based

on different legal theories (with different evidence 'necessary'

to each suit)."

Waldman v. Village of Kiryas Joel, 207 F.3d

105, 110 (2d Cir. 2000)

(citing Woods v. Dunlop Tire Corp., 972

F.2d 36, 39 (2d Cir. 1992)).

To determine whether a subsequent action is barred under

the doctrine of res judicata, courts consider whether the

earlier decision was "(1) a final judgment on the merits;

a court of competent jurisdiction;

(2) by

(3) in a' case involving the

same parties or their privies; and (4) involving the same cause

of action."

EDP Med. Computer Sys. V. U.S., 480 F.3d 621, 624

(2d Cir. 2007).

"It must first be determined that the second

suit involves the same claim—or nucleus of operative-rfact—as the

first suit."

Waldman v. Village of Kiryas Joel, 207 F.3d 105,

108 (2d Cir. 2000)

(internal quotations and citation omitted).

Everson cites Campaniello Imports Ltd. V. Saporiti Italia,

S.p.A., 117 F.3d 665 (2d Cir. 1997), for the proposition that

2003) (quoting Schnell v. Porta Sys. Corp., 1994 WL 148276, at *4 (Del. Ch.

April 12, 1994)).

Case 3:20-cv-00885-AVC Document 17 Filed 11/30/20 Page 9 of 11

"[r]es judicata 'does not preclude a litigant from making a

direct attack ... upon the judgment before the court which

rendered it. t tf Id. at 661 (quoting Weldon v. United States, 70

F.3d 1, 5 (2d Cir. 1995)

(quoting Watts v. Pinckney-/. 752 F.2d

406, 410 (9th Cir. 1985)).

However, in that case, involving a

challenge to a prior settlement agreement, the second circuit

cited rule 60(b) and noted that the "[c]laimants must (1) show

that they have no other available or adequate remedy;

(2)

demonstrate that movants' own fault, neglect, or carelessness

did not create the situation for which they seek equitable

relief; and (3) establish a recognized ground—such as fraud,

accident, or mistake—for the equitable relief."

Id. at 662.

that case, the second circuit concluded that the plaintiff had

failed to satisfy this standard and, therefore, "res

judicata 'preclude[d] the parties or their privies from

relitigating issues that were or could have been raised in that

action." Id. at 663 (quoting Federated Pep11 Stores, Inc, v.

Moitie, -452 U.S. 394, 398 (1981).

Further, in Weldon v. United

States, 70 F.3d 1 (2d Cir. 1995), the plaintiff framed her claim

as a "direct" action, but the second circuit concluded that "res

judicata barred this independent action to void the judgment"

where the claims "were raised or should have been raised by [the

plaintiff] during the pendency of the earlier case .

at 5 (internal quotation and quotation marks omitted).

Id.

Case 3:20-cv-00885-AVC Document 17 Filed 11/30/20 Page 10 of 11

The defendants' motion to dismiss is granted based on the

doctrine of res judicata.

Although Everson repeatedly argues

that this case is an "independent action" seeking to challenge

the validity of the court's earlier judgment, he in fact seeks

reversal of that judgment which, in turn, requires consideration

of the claims forming the basis of the court's prior decision.

The plaintiff has filed two previous cases, Everson v. Lantz, et

al., 3:04cv387(RNC) and Everson v. Semple, et al.,

3:16cv00077(RNC), based on the same claims that form the basis

of the allegations in this case.

Those cases both represent

"(1) a final judgment on the merits;

jurisdiction;

(2) by a court of competent

(3) in a case involving the same parties or their

privies; and (4) involving the same cause of action."

EDP Med.

Computer Sys., Inc, v. United States, 480 F.3d 621, 624.

The

court concludes that this case "involves the same claim—or

nucleus of operative fact" of those prior lawsuits.

Waldman,

207 F.3d at 108 (2d Cir. 2000).

Even assuming that this is an "independent action" to

challenge the validity of the court's earlier judgment, Everson

fails to state facts that satisfy the rule 60(b) standard

articulated in Campaniello Imports Ltd. V. Saporiti Italia,

S.p.A., 117 F.3d 665 (2d Cir. 1997).

He has failed to provide

any facts to support the existence of fraud or a sufficient

"mistake" to warrant the equitable relief he seeks.

Although he

Case 3:20-cv-00885-AVC Document 17 Filed 11/30/20 Page 11 of 11

disagrees with the court's underlying decision in the firstfiled lawsuit, he has failed to provide sufficient facts to

support a conclusion that the decision was a mistake or the

result of fraud.

With respect to his argument that the court

should have considered "comparators" in its prior decision,

Everson has failed to provide sufficient facts that such an

argument could not have been raised in the prior litigation.

CONCLUSION

For the foregoing reasons, the defendants' motion to

dismiss (document no. 10) is granted.

The plaintiff's motions

for extension of time (document no. 13) and to appoint a special

process server (document no 15) are denied.

The clerk is hereby directed to render judgment in favor of

the defendants and close this case.

It is so ordered this 30th day of November 2020, at

Hartford, Connecticut.

/s/

Alfred V. Covello

United States District Judge

Case 21-17, Document 52, 06/02/2021, 3112302, Pagel of 1

UNITED STATES COURT OF APPEALS

FOR THE

SECOND CIRCUIT

At a stated term of the United States Court of Appeals for the Second Circuit, held at the

Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the

2nd day of June, two thousand twenty-one.

Christopher Daniel Everson.,

Plaintiff-Appellant,

ORDER

Docket No: 21-17

Theresa Lantz, Commissioner of Corrections, John

Armstrong, Nelvin Levester, Robert Carbone,

Defendants-Appellees.

Appellant, Christopher Daniel Everson, filed a motion for panel reconsideration, or, in the

alternative, for reconsideration en banc. The panel that determined the appeal has considered the

request for reconsideration, and the active members of the Court have considered the request for

reconsideration en banc.

IT IS HEREBY ORDERED that the motion is denied.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk

Case 3:04-cv-00387-RNC

Document 132

UNITED STATES

Filed 02/04/09 Page

1 of 1

district COURT

district OF

CHRISTOPHER EVERSON

'6frr'*^r@r

CONNECTICUT

CIVIL NO.

nelvin\evesterJ°HJ? armstr°ng,

CARBONE

3:04CV38 7 (RNC)

VESTER and ROBERT

JUDGMENT

This

action

defendants'

Plaintiff

having

come

supplemental

motion

for

s cross-motion for

Robert N.

for

consideration

the

summary judgment

and

the

summary judgment before

the Honorable

Chatigny, United States

and

Ihe Court, having

considered the

record of the

including applicable

Principles of law, and

having issued a

and order granting the

defendants' motion and

motion/ it is hereby

ORDERED, ADJUDGED

and DECREED that

entered in favor of

judgment be and

defendants.

Dated at Hartford,

Connecticut, this 4th day of

ROBERTA D.

hereby is

February, 2009.

TABORA, Clerk

s/ JW________

Uo-Ann Walker

Deputy Clerk

\J . WT~0 V "UUUU / "I \IN O

L/U^UI I ICI II iOi

nieu v/uvmuij i-'age i ot y

ArP<*

-HN-PT-E-B—STA-T&S—DT’STRTCT-COURT'

DISTRICT OF CONNECTICUT

CHRISTOPHER EVERSON

Plaintiff,

CASE NO. 3:04-CV-387 (RNC)

THERESA LANTZ, JOHN ARMSTRONG,

NELVIN LEVESTER and

ROBERT CARBONE,

Defendants.

RULING AND ORDER

Pending for decision is a supplemental motion for summary

judgment filed by the defendants seeking dismissal of plaintiff's

claim under 42 U.S.C. § 1983 that his employment with the

Connecticut Department of Correction ("DOC") was terminated

because of his race in violation of the Equal Protection Clause

of the Fourteenth Amendment.

Plaintiff, an African American,

alleges that he was disciplined more harshly for off-duty

misconduct than similarly situated Caucasian and Hispanic

employees.

In a prior ruling, summary judgment was granted to

the defendants on the other claims in the complaint.

and Order, September 30, 2006 (Doc. 48).

See Ruling

Since then, defendants

have supplemented the record with additional materials showing

that plaintiff was not treated differently than similarly

situated individuals outside his protected group.

After careful

review of the whole record, I conclude that plaintiff has failed

to produce sufficient evidence to permit a jury to return a

v^aaco.UH-OV-UUOO/- kimu

uocumeni ±ji hiiea U2/U4/U9 Page 2 of 9

v-e-rd-i-ct-fo-r-h-im on'The racial discrimination claim.

Accordingly,

the defendants' supplemental motion for summary judgment on this

claim is granted.1

Facts

Plaintiff, while employed by the DOC as a corrections

officer, was arrested on two occasions and charged with various

off-duty offenses, including possession of marijuana and drug

paraphernalia.

He reported the arrests and the DOC commenced

investigations.

Plaintiff received accelerated rehabilitation on

some of f-he charges, including the drug charges, which were

dismissed after he successfully completed a period of probation.

Other charges were nolled.

Plaintiff failed to appear for a pre-

disciplinary conference with the DOC, after which his employment

was terminated.

denied.

He grieved the termination but the grievance was

The matter then proceeded to arbitration,

not participate in the arbitration process.

Plaintiff did

The arbitrator

concluded that the termination of plaintiff's employment was

supported by just cause.

II.

This suit followed.

Discussion

Summary judgment may be granted only if "there is no genuine

issue as to any material fact" and "the moving party is entitled

to judgment as a matter of law."

Fed. R. Civ. P. 56(c).

Plaintiff's cross-motion for summary judgment is denied.

^aoCo.u‘t-uv-uuoo/-r\iM^ uocumeni idi Hiea U2/U4/U9 Page 3 of 9

avoid summary judgment, pda-rn-td-f-f mirs‘t—p'odrrt—to—evidence—that—

would allow a reasonable jury to return a verdict in his favor.

See Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256 (1986);

Graham v. Long Island R.R.. 230 F.3d 34, 38 (2d Cir. 2000).

Plaintiff's equal protection claim under § 1983 is analyzed

using the same framework applied in! employment-discrimination

cases brought under Title VII (i.e., the burden-shifting

framework of McDonnell Douglas v. Green, 411 U.S. 792 (1973)).

See Feingold v. New York. 366 F.3d 138, 159 (2d Cir. 2004).

present a prima facie case, plaintiff must produce evidence that

his employment was terminated in circumstances giving rise

to an

inference of discrimination based on race.

See Patterson v.

County of Oneida. 375 F.3d 206, 221 (2d Cir. 2004).

Plaintiff

can satisfy this burden by showing that similarly situated

employees outside his protected group who engaged in conduct of

comparable seriousness were not terminated,

at 39.2

See Graham, 230 F.3d

If he makes this showing, the burden shifts to the

defendants to articulate a legitimate, nondiscriminatory

reason

for the termination.

See id.

Once such a reason is proffered,

the burden shifts back to the plaintiff to demonstrate by

issue2 of^f^c'telfo^n^'tj^LU^S

“

Graham, 230 F.3d at 38.

However, a court may properly grant summary judgment when no

reasonable jury could find that employees were similarly

situated.

See Harlen Assocs. v. Inc. Vill. of Minenla.

273 F.3d

494, 499 n. 2 (2d Cir. 2001).

uase 3:U4-cv-UU38/-RNC Document 131 Filed 02/04/09 Page 4 of 9

competent evidence that the defendants' explanation is a pretext

for discrimination, in other words, that the proffered

explanation is not true and that he was terminated because of his

race.

Id.

Plaintiff has satisfied his burden of presenting a prima

facie case.

He points to more than fifty similarly situated

corrections officers3 who faced criminal charges but were not

3These include, for example:

J.B., a white male corrections officer arrested and

charged first with assault on a police officer, driving while

intoxicated and criminal mischief and then again four months

later with disorderly conduct and assault in the third degree.

He was initially dismissed but then reinstated via stipulated

agreement.

(Def. Mem. S.J. Ex. 29 at 6.)

S.G., an Hispanic male corrections officer charged with

sexual assault in the first degree and burglary in the first

degree. There is no record of any disciplinary action against

him.

(Id. at 17.)

D.D., a white male corrections officer charged with

assault on a police officer, interfering with a police officer,

criminal mischief in the third degree, and driving under the

influence. He was initially dismissed but then allowed to return

via stipulated agreement.

(Def. Mem. S.J. Ex. 31 at 22.)

Among' those charged with drug offenses, plaintiff points to:

H.A., an Hispanic male corrections officer charged with

driving while intoxicated, speeding, failure to obey a traffic

signal, and possession of marijuana. He was placed on

administrative leave but then reinstated after two months.

(Def.

Mem. S.J. Ex. 29 at 2.)

C.C., a white male corrections officer charged with

larceny in the sixth degree, possession of marijuana, possession

and use of drug paraphernalia, and criminal trespass in the third

degree. He was placed on administrative leave while a DOC

investigation progressed, but allowed to return to service

thereafter.

(Id. at 9.)

J.F., a white male corrections officer arrested and

charged with disorderly conduct and possession of a controlled

substance. There is no mention of any discipline taken against

(continued...)

uase 3:u4-cv-UD387-RNC Document 131 Filed 02/04/09 Page 5 of 9

terminatedT4

Defendants Rave saT±s^±^^1rel^-buxdeTr-of—-_____

articulating a nondiscriminatory reason for the termination.

They state that plaintiff was terminated because he engaged in

drug related misconduct for which he received accelerated

rehabilitation and failed to participate in the DOC4 s

disciplinary process,

Defendants' explanation is supported by

admissible evidence sufficient to support a jury finding that

these are the true reasons for the termination,

Accordingly, to

avoid summary judgment, plaintiff must offer proof that would

permit a jury to find that the defendants' explanation is untrue

and that his race played a role in the termination.

Plaintiff has not carried this burden.

The DOC's policy of

treating drug offenses harshly has been sustained by the State

Board of Mediation and Arbitration, which has consistently found

that a drug offense provides just cause for terminating a

corrections officer.

(See, e

/ Def. Supp. Mem. S.J. Ex. 5)

("This Arbitrator has found many times in the past that the

3(...continued)

(Id. at 16.)

J.M. , an Hispanic male charged with driving under the

influence and possession of marijuana, He was initially

dismissed but allowed to return via a "last chance" stipulated

agreement. (Id. at 29.)

him.

Defendants' objection that these comparators are not

sufficiently similar is misplaced. At the prima facie stage, the

plaintiff's burden of production is "minimal." James v. New York

Rg.cinq Ass'n., 233 F.3d 149, 153 (2d,Cir. 2000) ." The defendants7

objections are better reserved for the nondiscriminatory- reason

and pretext stages of the analysis.

oase c5:u4-cv-uuc5«/-knu Document 131 Filed 02/04/09 Page 6 of 9

corrections op'exa-ti-o-n—can-net—be—r-un—by_o.fi:.i.c.exs who are involved

in any way in the sale or use of narcotics.

To allow this would

be to allow the inmate population, the corrections officers

guarding the inmate population[,] and the public itself to be

placed in harm's way.").

The disciplinary records defendants

have produced in this case show that the DOC has consistently

taken a hard line against drug offenders.

DOC arrest logs,

appended as exhibit 29 to defendants' first motion for summary

judgment, show that approximately 60% of DOC employees who were

charged with a drug offense were terminated.

(See id.)

addition, the arrest logs show that drug offenders of all races

were terminated at approximately the same rate, 58.33% for

African-Americans (seven out of twelve) compared to 58.14% for

Caucasians and Hispanics (twenty-five out of forty-three).

id. )

(See

Of those, like the plaintiff, with marijuana charges, one

of two African-American officers was terminated (50%), compared

with six of eleven Caucasian and Hispanic officers (55%)-.

those, like the plaintiff, with a non-distribution drug charge as

well as additional charges, three out of five African-Americans

(60%) were terminated compared to eight of fourteen Caucasians

and Hispanics (57.14%).

(See id.)

In addition, the record confirms that plaintiff's refusal to

participate in the disciplinary process was a significant factor

in the termination of his employment.

The vast majority of the

uase 3:u4-cv-uu3»/-KNU Document 131 Filed 02/04/09 Page 7 of 9

comparators plaintiff points to participated in pre^di-s^xpitina'ry

and arbitration proceedings.

Of the four Hispanic or Caucasian

individuals in the arrest logs who were not terminated despite

being similarly situated to the plaintiff in that they faced nondistribution drug charges accompanied by other charges, all

participated in the disciplinary process through pre-disciplinary

hearings or arbitration proceedings or both.5

This serves to

5These are:

H. A. r an Hispanic male corrections officer charged with

driving while intoxicated, speeding, failure to obey traffic

signals and possession of marijuana. Defendants note that H.A.

not only participated in the disciplinary process, but also had

his charges nolled prior to returning to service, unlike

plaintiff whose drug charges were only dismissed after a twentymonth period of probation under his accelerated-rehabilitation

agreement.

(Def. Mem. S.J. Ex. 29 at 2.)

C.C., a white male corrections officer arrested for

sixth-degree larceny, possession of marijuana, possession of drug

paraphernalia, and third-degree criminal trespass, He

participated in the disciplinary process and was allowed to

return to work pursuant to a stipulated agreement, Defendants

note that the charges in this case were based on out-of-state

conduct, making them more difficult to prove and that the officer

participated in a Step Three hearing at the Office of Labor

Relations. (Id. at 9.)

J.F., a white male corrections officer arrested for

disorderly conduct and possession of a controlled substance, He

availed himself of the negotiation process at arbitration and

entered into a stipulated agreement. In addition, defendants'

note that he had his charges nolled prior to returning to work,

whereas plaintiff's drug charges remained pending during his

period of probation. (Id. at 16.)

J-M., an Hispanic male corrections officer arrested for

under the influence and possession of marij uana. He was

dismissed but then allowed to return to work on a "last chance"

stipulated agreement. The defendants note that J.M. produced

drug tests taken immediately after his arrest showing that he had

no marijuana in his system, making it difficult for the state to

prove its case during the disciplinary process. Needless to say,

(continued...)

oase cs:u4-cv-uu38/-kimu uocument 131 Hied 02/04/09 Page 8 of 9

^xpl'a±n—wh-y-pl-a-i-n-fe-i-f-f—w-a-s—t-r.ea.te.d_mo.r.e__harshly than othpr

officers who were charged with off-duty drug offenses accompanied

by other offenses and yet were not terminated.

In his response to the defendants' supplemental motion for

summary judgment, plaintiff contends that he should be compared

with all officers arrested for off-duty misconduct, not just drug

offenders.

But he offers no proof that the DOC's policy and

practice of treating drug offenders more harshly than others is a

pretext for racial discrimination.

Plaintiff also contends that

participation in the DOC's disciplinary process is irrelevant.

He asserts that the DOC's process addresses whether there is good

cause for a termination, not whether the constitutional standard

of equal protection is satisfied.

This argument misses the

5(...continued)

J.M.'s participation in this process was material to its

favorable resolution in his case. (Id. at 29.)

Two other individuals had similar charges to the plaintiff

and were not directly addressed by defendants. P.R., a white

teacher, charged with driving while intoxicated and

possession of marijuana, resigned from state service after having

the possession charge nolled.

(Id. at 40.)

Defendants have

elsewhere noted that plaintiff never sought to resign from his

position. In addition, there are conflicting records with regard

to A.C. , an Hispanic male corrections officer charged with

possession of marijuana, driving while intoxicated, and failure

to wear a seatbelt. The Department's arrest log shows that he

was charged with these offense in 2005 and placed on

administrative leave.

at 11.) However, in the disciplinary

log, there is no mention of these offenses; rather A.C. is cited

only for tardiness and exhaustion of sick leave.

(Def. Mem. S.J.

Ex. 31 at 17.)

The lack of information surrounding these two

comparators is far from sufficient to establish that the

defendants articulated non discriminatory reasons for terminating

plaintiff were merely a pretext for discrimination.

uase 3:u4-cv-00387-RNC Document 131 Filed 02/04/09 Page 9 of 9

P©i_-n-t—

Defendants explain that plaintiff was terminated while a

few other officers charged with similar off-duty misconduct were

not because the others took advantage of the opportunity to

defend themselves and in some cases negotiated stipulated

agreements allowing them to return to state service,

Plaintiff

emphasizes that he was not notified of his opportunity to

participate in a pre-disciplinary hearing until after the hearing

was held.

It is undisputed, however, that several attempts were

made to contact him to schedule a pre-disciplinary conference and

the conference was rescheduled twice when he failed to

appear.

(See Def. Mem. S.J. Exs. 9, 10, 15, 16, 17, 18.) 6

IV.

Conclusion

Accordingly, the defendants' supplemental motion for summary

judgment (doc. # 114) is hereby granted,

Plaintiff's cross

motion for summary judgment (doc. # 121) is denied.

The Clerk

may close the file.

So ordered this 3d day of February 2009.

Is/ RNC

Robert N. Chatigny

United States District Judge

Because plaintiff has failed to present sufficient

evidence to support a finding that his employment was terminated

because of hxs race, it is unnecessary to consider defendants'

argument that they are entitled to qualified immunity.

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 1 of 14

UNITED STATES DISTRICT COURT

DISTRICT OF CONNECTICUT

CHRISTOPHER EVERSON,

Plaintiff,

CASE NO. 3:04-CV-387 (RNC)

THERESA LANTZ, COMMISSIONER OF :

CORRECTION; JOHN ARMSTRONG;

NELVIN LEVESTER; ROBERT CARBONE,:

Defendants.

RULING AND ORDER

Plaintiff, a former employee of the Connecticut Department

of Correction ("DOC"), brings this action pursuant to 42 U.S.C. §

1983 alleging that he was terminated in violation of his

constitutional rights to procedural due process and equal

protection.

Defendants have moved for summary judgment, and

plaintiff has filed a partial cross-motion for summary judgment.

For the reasons that follow, summary judgment is granted for

defendants on the due process and "class of one" equal protection

claims but denied on the race-based equal protection claim.

Facts

Plaintiff, an African-American male, began working as a

correction officer at DOC in 1984.

Statement 1 1.)

(Defs.' L. R. 56(a)!

At the time of the incidents that led to his

termination, he was not working because of a back injury and was

receiving workers' compensation benefits.

*9?e,Y\ohx V*

(PI.'s L. R. 56 (a)1

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 2 of 14

Statement ST 8 .)

Defendant Levester was the warden at Webster

Correctional Institution, where plaintiff was assigned to duty.

(PI.'s L. R. 56 (a)1 Statement 51 4, 7.)

Defendant Carbone was an

administrative captain at Webster Correctional Institution.

(Defs.' L. R. 56(a)! Statement 5 6.)

Defendant Armstrong was the

commissioner of the Department of Correction.

56(a)! Statement 5 3.)

(Defs.' L. R.

Defendant Lantz is the current

commissioner and is sued in her official capacity only.

(Defs.'

L.R. 56(a)! Statement 5 2.)

On October 27, 2000, a state court judge ordered plaintiff

to surrender all pistols and revolvers.

Statement 5 7.)

(See Defs.' L. R. 56(a)1

Hamden police officers subsequently executed a

search warrant at plaintiff's home seeking pistols and revolvers

that were known to be registered to him.

Statement 5 9.)

(Defs.' L. R. 56(a)!

According to the police report, plaintiff struck

a police officer executing the warrant and resisted arrest, and

the officers discovered 6.2 grams of marijuana, rolling papers,

and four marijuana roaches in a closet.

(See Defs.' Ex. 3.)

Plaintiff was arrested for interfering with execution of the

search warrant, disorderly conduct, assault on a police officer,

possession of marijuana, and possession of drug paraphernalia.

(Defs.' L. R. 56(a)! Statement 5 11.)

officer is a felony.

Assault on a police

See Conn. Gen. Stat. § 53a-167c.

Plaintiff

promptly reported the arrest to the DOC, and an investigation was

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 3 of 14

commenced.

(Defs.' L. R. 56(a)! Statement 151 15-19.)

In May

2001, plaintiff was granted accelerated rehabilitation.

January 2003, the charges were dismissed following a period of

probation.

(Defs.' L. R. 56(a)! Statement 5 47.)

On November 21, 2000, plaintiff was arrested on a warrant

charging him with threatening, harassment, sexual assault, and

criminal attempt to commit sexual assault.

Statement SI 21.)

Plaintiff reported this arrest to the DOC, and

. an investigation was commenced.

SIS! 22-24.)

(Defs.' L. R. 56(a)!

(Defs.7 L. R. 56(a)! Statement

The charges were nolled in December 2001.

(Defs.' L.

R. 56(a)! Statement SI 46.)

On January 10, 2001, defendant Carbone submitted to

defendant Levester investigation reports covering the two

arrests.

(See Defs.' L. R. 56(a)! Statement SISI 25-26, 30-31.)

In the course of his investigations, Carbone did not interview

anyone other than the plaintiff.

SISI 34-35.)

(PI.'s L. R. 56(a)! Statement

He believed that the purpose of the investigations

was to verify only the occurrence of the arrests, not the

underlying conduct precipitating the arrests.

56(a)! Statement SI 34.)

(Def.'s L. R.

He concluded that by virtue of

plaintiff's arrests on warrants there existed probable cause that

plaintiff had violated the Department's directive on employee

conduct.

(Defs.' L. R. 56(a)! Statement SISI 27, 32.)

A letter

was sent to plaintiff notifying him of a pre-disciplinary

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 4 of 14

conference.

(Defs.' L. R. 56(a)! Statement SI 35.)

not attend the conference.

Plaintiff did

(Defs.' L. R. 56(a)! Statement SI 36.)

The conference was rescheduled twice.

Plaintiff failed to appear

both times despite numerous notifications by mail and phone.

(Defs.' L. R. 56(a)! Statement SIS! 37-38, 42-43.)

Following the

pre-disciplinary conference on March 8, 2001, plaintiff's

employment was terminated for "just cause."

Statement SIS! 43-44.)

decision.

(Defs.' L. R. 56(a)!

Defendant Armstrong agreed with this

(Defs.' L. R. 56(a)! Statement SI 40.)

Plaintiff grieved his dismissal in March 2001.

(Defs.' L.

R. 56(a)! Statement SI 50.)

The grievance was denied.

R. 56(a)! Statement SI 51.)

The matter then proceeded to

arbitration.

(Defs.' L.

On April 22, 2002, the arbitrator denied

plaintiff's grievance and concluded that he had been terminated

for just cause.

(Defs.' L. R. 56(a)! Statement SI 52.)

Plaintiff

commenced this action on March 5, 2004.

II.

Discussion

Summary judgment may be granted only when "there is no

genuine issue as to any material fact" and "the moving party is

entitled to a judgment as a matter of law."

56(c) .

Fed. R. Civ. P.

The moving party has the burden of showing that no

genuine issue of material fact exists, and all reasonable

inferences must be drawn in favor of the nonmoving party.

Sec.

Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 5 of 14

77, 83 (2dCirT~2*0t)-4-)-7

•Qn-ee—the—moving party has demonstrated

the absence of a genuine issue of material fact, the nonmoving

party must go beyond the pleadings and point to evidence in the

record showing a genuine issue of material fact..

Celotex Corp.

v. Catrett. 477 U.S. 317, 324 (1986).

Plaintiff asserts both procedural due process and equal

protection claims.

He claims that defendants infringed his

procedural due process rights by terminating him in violation of

the Department's directives governing employee discipline and

disciplinary investigations.1

He also claims that he was treated

more harshly than similarly situated Caucasian and Hispanic

employees in that he was terminated because of off-duty arrests

before conviction on the resulting charges.

Defendants move for

summary judgment on the ground that plaintiff has not adduced

evidence to support these claims.

In addition, they contend that

they are entitled to summary judgment based on qualified

immunity.

Procedural Due Process

1 Plaintiff alleges a variety of irregularities in the

investigation of his misconduct and his termination. For

example, he alleges that defendant Carbone failed to interview

relevant witnesses to the incidents, in violation of Directive

1.10 SI 5.b, and that he based his conclusion that plaintiff had

engaged in misconduct solely on the fact of his arrests. He also

alleges that defendants Levester and Armstrong did not consider

whether the investigation was conducted fairly or whether

substantial evidence supported plaintiff's guilt when they

recommended termination, in violation of Directive 2.6 SI 13.

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 6 of 14

A procedural due process claim comprises two inquiries.

First, the court must determine whether the plaintiff has a

protected property or liberty interest.

Cleveland Bd. of Educ.

v. Loudermill. 470 U.S. 532, 538 & n.3 (1985).

Property

interests "are created and their dimensions are defined by

existing rules or understandings that stem from an independent

source such as state law,"

Id. at 538 (quoting Bd. of Regents v.

Roth, 408 U.S. 564, 577 (1972)).

The parties agree that

plaintiff had a protected property interest in his continued

employment because he could only be terminated for just cause.

Second, the court must determine what process is due.

541.

Id. at

This inquiry is a matter of federal law and requires

balancing the individual's interest, the government's interest,

which involves its interest in avoiding administrative burdens,

and the risk of erroneous deprivation.

See id. at 541-43 (citing

Mathews v. Eldridqe. 424 U.S. 319, 335 (1976)).

In Loudermill, the Court defined what process is due before

a state can deprive a public employee of a property interest in

continued employment.

After weighing the competing interests at

stake, the Court concluded that a "tenured public employee is

entitled to oral or written notice of the charges against him, an

explanation of the employer's evidence, and an opportunity to

present his side of the story."

Id. at 546.

The pre-termination

hearing need only be "a determination of whether there are

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 7 of 14

reasonable grounds to believe tKatn

; ag a-i-n-s-t —t-he------------

employee are true and support the proposed action" so long as the

employee has recourse to a post-termination hearing.

Id. at 545-

46.

Plaintiff appears to concede that defendants provided him

with the process due under Loudermill.

(See Doc. #38 at 17.)

argues instead that constitutional due process protections

require an agency to follow its own interna'l rules when

terminating employees, citing a line of cases originating in

Service v. Dulles. 354 U.S. 363 (1957).

Plaintiff misconstrues

these cases, which concern judicial review of federal agency

action under principles of administrative law.

Curators v. Horowitz, 435 U.S. 78, 92 n.8 (1978)

See Bd. of

(holding that

Service "enunciate[d] principles of federal administrative law

rather than of constitutional law binding upon the States").

Plaintiff cites no case holding that due process requires a state

agency to follow its own. internal procedures when terminating - an

employee.

In fact, Loudermill held just the opposite: "The

answer to [the] question [of how much process is due] is nob to

be found in the [state] statute."

470 U.S. at 541; see also

McDarby v, Dinkins, 907 F.2d 1334, 1337-38 (2d Cir. 1990)

("When

the minimal due process requirements of notice and hearing have

been met, a claim that an agency's policies or regulations have

not been adhered to -does not sustain an action for redress of

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 8 of 14

procedural due process violations." (quoting Goodrich v. Newport

News Sch. Bd., 743 F.2d 225, 227 (4th Cir. 1984))).2

The issue in a procedural due process claim is not whether

the state- decision was correct or complied with state procedural

regulations.

The Due Process Clause does not prohibit erroneous

deprivations of property; it requires that a person being

deprived of property receive due process.

This Court's role is

not to review the correctness of defendants' conclusion that just

cause existed for plaintiff's termination under the directives;

plaintiff already litigated this issue in arbitration.

Because

plaintiff has conceded that he received the process required

As one opinion cited by plaintiff stated:

It is not every disregard of its regulations by a

public agency that gives rise to a cause of action for

violation of constitutional rights. Rather, it is only

when the agency's disregard of its rules results in a

procedure which in itself impinges upon due process

rights that a federal court should intervene in the

decisional processes of state institutions.

While courts have generally invalidated

adjudicatory actions by federal agencies which violated

their own regulations promulgated to give a party a

procedural safeguard, we conclude that the basis for

such reversals is not . . . the Due Process Clause, but

rather a rule of administrative law.

Bates v. Sponbercr, 547 F.2d 325, 329-30 (6th Cir. 1976) (footnote

omitted).

Plaintiff has not articulated how defendants' alleged

failure to follow their internal rules resulted in a procedure

that itself impinged his rights, Rather, he broadly (and

incorrectly) asserts that a state employee's due process rights

are automatically violated when his employer does not follow its

internal rules.

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 9 of 14

-u-n-de-r—£ro-u-de-rml-i 1, he has failed to state a claim under the Due

Process Clause.3

Equal Protection

The crux of plaintiff's equal protection claim is that he

was terminated before the criminal charges brought against him

were resolved, whereas similarly situated Caucasian and Hispanic

employees were not terminated until after they were convicted.

Defendants argue that there is no issue of genuine fact regarding

whether similarly situated employees were treated differently.

cannot agree.

"The Equal Protection Clause requires that the government

treat all similarly situated people alike."

Harlen Assocs. v.

Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001).

selective treatment claim under the Equal Protection Clause

requires a showing that the plaintiff was treated differently

from others similarly situated and that the selective treatment

was based on impermissible considerations such as race.

See

Giordano v. City of N.Y Z-f 274 F.3d 740, 750 (2d Cir. 2001).

Alternatively, under a "class of one" theory, a plaintiff may

3 Plaintiff argues that, because defendants allegedly

terminated him for conduct that was not grounds for termination

under the Department's directives, he lacked "notice" that he

could be dismissed for such conduct.

(See Doc. #38 at 10 n.9.)

I do not understand plaintiff to be arguing that he lacked the

notice required by Loudermill because plaintiff does not allege

that he lacked notice of the charges against him in advance of

his Loudermill hearing.

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 10 of 14

demonstrate that he was treated differently from others similarly

situated and that there was no rational basis for the difference

in treatment.

564 (2000)

See Vill. of Willowbrook v. Olech, 528 U.S. 562,

(per curiam).4

A plaintiff must demonstrate that an employee with whom he

seeks to be compared is "similarly situated in all material

respects."

2000)

Graham v. Long Island R.R.. 230 F.3d 34, 33 (2d Cir.

(quoting Shumwav v. United Parcel Serv., Inc., 118 F.3d 60,

64 (2d Cir. 1997)).5

The plaintiff and comparison employee need

not be identical, but they must be "subject to the same workplace

standards,

and the conduct for which they were sanctioned must e

be "of comparable seriousness."

Id. at 40.

"The determination

that two acts are of comparable seriousness requires

addition to an examination of the acts - an examination of the

context and surrounding circumstances in which those acts are

evaluated."

Id.

Whether individuals are similarly situated is

thus usually an issue of fact for the jury.

See id. at 39; see

—^so ffarlen Assocs., 273 F.3d at 499 n.2 (whether individuals are

similarly situated is generally an iss-ue for the jury, but the

The Second Circuit has not yet decided whether Olech

requires a showing of malice or bad faith. See, e.g., Bizzarro

v. Miranda, 394 F.3d 82, 88 (2d Cir. 2005); Giordano. 274 F.3d at

750-51.

5 Graham is a Title VIIl case but the Second Circuit applies

the same "similarly situated test in equal protection cases.

See, e.q. , Harlen Assocs., 273 F.3d at 499 n.2.

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 11 of 14

issue can be decided on summary judgment "where it rs~cTear"1:Kar“

no reasonable jury could find the similarly situated prong met").

On the record before me, there are genuine issues of

material fact regarding whether plaintiff was treated differently

than similarly situated Caucasian and Hispanic employees.

Defendants have submitted records allegedly showing that

employees of all races were terminated both before and after

conviction for felony and drug-related offenses.

The records

lack sufficient detail for me to conclude that these individuals

were similarly situated to plaintiff.

For example, many of the

drug offenses resulting in termination involved possession of

cocaine.

As plaintiff argues, a rational jury could conclude

that plaintiff was not similarly situated to employees arrested

for cocaine possession because Connecticut law distinguishes

between possession of narcotics such as cocaine and possession of

less than four ounces of marijuana.

279.6

See Conn. Gen. Stat. § 21a-

Similarly, it is debatable'whether plaintiff should be

Defendants have submitted various letters and other

documents concerning disciplinary action taken against other

o;^'’‘cers

show that employees of all races have been terminated

for felony and drug-related offenses before and after conviction.

(See Defs.' Ex. 35.) My review of these documents revealed four

explicit mentions of marijuana possession. An African-American,

was terminated for off-duty possession of marijuana.

(See Doc.

#31 at 33.)

Two Caucasians were terminated following marijuanarelated offenses but were allowed to return to work pursuant to a

stipulation.

(See Doc. #31 at 13, 22.) A third Caucasian was

terminated following an marij,uana-related arrest but was

subsequently allowed to resign in lieu of termination

(See Doc.

#31 at 67.) A jury might or might not find these individuals

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 12 of 14

compared to individuals arrested for selling narcotics or

possessing narcotics with intent to sell.

Moreover, I cannot

discern from the records submitted by the defendants whether some

employees were terminated pre- or post-conviction.

By contrast, plaintiff has identified several Caucasian and

Hispanic employees whose employment was not terminated following

a felony arrest.

For example, a white male with two arrests, one

for a felony offense of risk of injury to a minor, was placed on

administrative leave but not terminated.

(See Doc. #29 at 2.)

Hispanic male was placed on leave following arrests for sexual

assault and burglary; however, he was not terminated and was

allowed to return to work following a "not guilty" verdict.

Doc. #29 at 17.)

(See

Similarly, employees with drug-related arrests,

some more serious than plaintiff's, were not terminated preconviction.

A white male arrested for possession and sale of a

controlled substance was placed on leave and, pursuant to a

stipulation, suspended for thirty days.

• Doc. #31 at 33.)

(See Doc. #29 at 19;

Another white male arrested for possession of

marijuana was given a last chance stipulation.

10; Doc. #31 at 14.)

(See Doc. #2 9 at

It is conceivable that a reasonable jury

could find these individuals similarly situated to plaintiff.

Because I find genuine issues of material fact going to

similarly situated to plaintiff, but the differences in treatment

raise issues of fact to be decided by a jury.

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 13 of 14

wHeTther plaintiff was treated differently than similarly situated

individuals, summary judgment must be denied on plaintiff's racebased equal protection claim.

However, I grant summary judgment

on plaintiff's "class of one" claim.

Plaintiff makes no attempt

to argue in opposition to defendant's motion for summary judgment

that there was no rational basis for the difference in treatment.

In the absence of any such argument, this claim is deemed waived.

Qualified Immunity

In the alternative, defendants argue that their actions are

protected by qualified immunity.

In assessing a defense of

qualified immunity, the relevant question is whether a reasonable

officer in the defendant's position could have believed the

defendant s actions lawful in light of clearly established law.

See Anderson v. Creighton. 483 U.S. 635, 641 (1987).

reasonable officer would have believed it lawful, in light of

clearly established law, to discipline African-American employees

more severely than.Caucasian or Hispanic employees,

Because

there are genuine issues of material fact going to whether

defendants treated plaintiff differently than similarly situated

Caucasian and Hispanic employees, I cannot determine at this

whether defendants are entitled to qualified immunity.

III. Conclusion

For the foregoing reasons, defendants' motion for summary

judgment [Doc. .#30] is hereby granted in part and denied in part.

Case 3:04-cv-00387-RNC Document 48 Filed 09/30/06 Page 14 of 14

Plaintiff"'!; mod~o'rr~fcrr a-ufMaa?-y-g-H4g-men-t__[.D.o:c.._.#J7_] is hereby

denied.

Count two ( class of one") and counts three and four

(procedural due process) are dismissed.

So ordered.

Dated at Hartford, Connecticut this 30th day of September

2006.

/s/

Robert N. Chatigny

United States District Judge

i K

•''ST £>f-coMN^N,)A

faffed*

UNITED STATES COURTOF APPEALS

FOR THE

SECOND CIRCUIT

OS-Oj-i&T

0/<vI6nV

At a stated Term of the United States Court of Appeals for the Second Circuit, held at the Daniel

Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 9 th

day of June, two thousand and nine,

Christopher Everson,

Plaintiff-Appellant,

JUNOSfMI

Commis sioner Of Corrections, Theresa Lantz,

John Armstrong, Nelvin A. Levester, Robert

Carbone,

Defendants-Appellees.

ORDER

Docket Number; 09-0903-cv

The Civil Appeals Management Plan of tins court directs that within the (10) days after filing a

Notice of Appeal, the appellant shall, inter alia, either pay docketing fee or move for leave to proceed

in forma pauperis, and that m the event of default of this requirement the Clerk may dismiss the appeal

without fbrther notice.

The appellant herein not having so proceeded, upon consideration thereof, it is

appeal from the order of 2-4-09 from the United States District Court of Connecticut Mi and

DISMISSED. Any motions pending prior to the entry of this order o f dismissals deem

For the Couft

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ORDER

Before: Jon 0, Newman, Circuit Judge

IT IS HEREBY ORDERED that the motion to recall the mandate is DENIED.

No showing of manifest injustice. See District Court opinion dismissing

discrimination claim.

v I x- ©‘t

FOR THE COURT:

Catherine O’Hagan Wolfe, Clefs

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AU8 12 WQ9

Case 16-3381, Document 63-1, 09/08/2017, 2119723, Pagel of 4

ndnc J.

4-6-3-38.1_______ __

Everson v. Armstrong et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY

MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE

NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at

the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,

on the 8th day of September, two thousand seventeen.

PRESENT:

Barrington D. Parker,

Susan L. Carney,

CircuitJudges.

Timothy C. Stanceu,

ChiefJudge, U. S. Court ofInt’l Trade. *

Christopher Everson,

Plaintiff-Appellant,

No. 16-3381

John Armstrong, Official and Individual Capacity,

Scott Semple, Commissioner of Correction,

Official and Individual Capacity,

Defendants-Appellees.

FOR APPELLANT:

Christopher Everson, pro se, Hamden, CT.

* Chief Judge Timothy C. Stanceu, of the United States Court of International Trade, sitting by designation.

aVP»^Lv r

Case 16-3381, Document 63-1, 09/08/2017, 2119723, Page2 of 4

-AM-ieUS-GURLAE:-

Carletha S.P. Texidor, Assistant Attorney

XjenefalrQffice~of~the-GoFineGticur^

Attorney General, Hartford, CT.

Appeal from a judgment of the United States District Court for the District of

Connecticut (Chatigny, J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court entered on

September 7, 2016, is AFFIRMED.

Appellant Christopher Everson appeals from a judgment entered after the district

court sua sponte dismissed his suit pursuant to 28 U.S.C. § 1915(e)(2). We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal, to which we refer only as necessary to explain our decision to affirm.1

We review de novo a district court’s sua sponte dismissal under § 1915(e)(2). Giano v.

Goord, 250 F.3d 146,149-50 (2d Cir. 2001). We conclude that the district court properly

dismissed Everson’s complaint on claim-preclusion grounds. Monahan v. N.Y.C. Dept, of Corr.,

214 F.3d 275, 285 (2d Cir. 2000) (A claim is precluded when “(1) the previous action

involved an adjudication on the merits; (2) the previous action involved the plaintiffs or

those in privity with them; [and] (3) the claims asserted in the subsequent action were, or

could have been, raised in the prior action.”). First, Everson’s 2004 action for damages under

42 U.S.C. § 1983 was resolved on the merits when the district court entered summary

judgment for defendants in 2009. Everson v. Comm’r of Corr., No. 04-cv-387 (Dkt. Nos. 48,

131); see also Beck v. Covering, 947 F.2d 639, 642 (2d Cir. 1991). Second, with the exception of

Commissioner Scott Semple, now sued in his individual capacity, the 2004 action and the

1 The named defendants were never served and, therefore, are not parties to this appeal. We directed the

Connecticut Attorney General’s Office to file a brief as amicus curiae in support of defendants’ position.

Case 16-3381, Document 63-1, 09/08/2017, 2119723, Page3 of 4

,«

current~action-involve-the-same-named.parries or those in privity with them. Third, in both

the 2004 action and the current action, Everson asserts claims under § 1983 based on his

allegedly discriminatory firing in 2001. Therefore, the district court properly determined that

the earlier dismissal of the 2004 action precludes Everson from pursuing the present claims

against the same parties.

Dismissal of Everson’s claim against Semple also was proper. The district court

dismissed this claim on claim-preclusion grounds even though it could have been argued that

Semple was not in privity with the plaintiffs in the 2004 action. We need not consider that

issue because the claim, even were it not so precluded, would be time-barred. See Lomsbury v.

Jeffries, 25 F.3d 131,133-34 (2d Cir. 1994). Moreover, to the extent Everson seeks in the

current action to hold Semple liable in his individual capacity as well as in his official

capacity, he fails to allege any facts to support an inference that Semple was personally

involved in the 2001 events giving rise to his claim. See, e.g., K <&A Radiologic Tech. Servs., Inc.

v. Comm’r ofDep’t ofHealth ofState ofN.Y., 189 F.3d 273, 278-79 (2d Cir. 1999) (stating that

[pjersonal involvement of the defendant in the alleged deprivation is a prerequisite to

recovery of damages under § 1983”).

Finally, Everson invokes this Court’s mandamus jurisdiction, seeking an order

directing the district court to revisit its 2009 summary judgment ruling. We deny the

requested relief. Everson has already had the opportunity to appeal the 2009 ruling, and

mandamus “[may] not be used as a substitute for the regular appeals process.” See, e.g, Cheney

v. U.S. Hist. Courtfor H.C., 542 U.S. 367, 380—81 (2004) (citation omitted).

- ' *..

: >1^.;

oaoc iu-oooi, uouumeru oo-i, ua/uo/zu i (, ziiarz'6, Page4 of 4

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-1-------------We_hay_e_cpnsidered Everson’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the district court’s judgment.

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court

■r

, , .

Case 3:16-cv-00077-RNC

Document 13

Filed 09/07/16

Page 1 of 2 _

UNITED STATES DISTRICT COURT /)

—DIST-RICT-OF-CONNECXLCUJ__^g^^^i

CHRISTOPHER EVERSON,

Plaintiff,

CASE NO. 3:16CV77 (RNC)

SCOTT SEMPLE, Commissioner of

Correction, Official and Individual

Capacity, and JOHN ARMSTRONG, Official

and Individual Capacity,

Defendants.

JUDGMENT

This action having come on for consideration of the paintiffs motion for leave to proceed

—forma PauPens dkt. # [2], and the plaintiff's motion for appointment of counsel

dkt. # [3] before the Honorable Robert N. Chatigny, United States District Judge

and, District Judge Robert N. Chatigny referred the matter to the Honorable Judge Do

nna F.

Martinez, United States Magistrate Judge and,

The Honorable Donna F. Martinez, US Magistrate Judge having considered the full

record of the case including applicable principles of law, and having filed

a recommended

ruling dkt. # [10] granting the plaintiffs motion to proceed in forma pauperis, denying his motion

for appointment of counsel and recommending that his complaint be dismissed

without

prejudice pursuant to 28 U.S.C. § 1915 (e) (2)(B). The Court having approved and adopted

objection; it is hereby

ORDERED, ADJUDGED AND DECREED that this case be dismissed.

Dated at Hartford, Connecticut, this 7th day of September, 2016.

ROBIN D. TABORA, Clerk

/s/ TG

Terri Glynn

Deputy Clerk

over

...

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nttH==&

U.S. District Court

United States District Court for the District

of Connecticut

Notice of Electronic Filing

The following transaction was

entered on 9/6/2016 at 9:59 AM EDT and filed

on 9/6/2016

Case Name:

Everson v. Semple et al

Case Number:

3:16-CV-0QQ77-R mo

Filer:

Document Number: 12(No document attached)

Docket Text:

"TD °f *he -commended

approved and adopted. Plaintiff contendoLf

■fIlf-nded rU,ing iS herebV

from relitigating the claims he raised in th^ *

J“d,cata does not prevent him

not adjudicated on the merits But thp ria- Pn°r acbon because the claims were

judgment, which

d,Sm!ssed

summary

ccmskier^'Vast rmo^nT'^of

re^Jud^0^^^3^*courtfaned^toGS

even

res judicata. Accordingly the Action k hprih"!? Wh®n the C,a'ms are barred bV

file. So ordered. Signed by Judge Robert NCh±fSm'SSed- Jhe C,erk will close the

Robert)

9 R°bert N‘ Chat|gny on 9/6/16. (Chatigny

AP/Viviik /c

f-|;

UNITED STATES DISTRICT COURT

---- DISTRICT OF CONNECTTPHT

CHRISTOPHER EVERSON,

Plaintiff,

CASE NO. 3:16cv77(RNC)

SCOTT SEMPLE, ET AL.

Defendants.

RECOMMENDED RULING

Plaintiff, Christopher Everson, brings this employment

discrimination action against defendants Scott Semple and John

Armstrong—the Commissioner and former Commissioner of the

Department of Correction ("DOC"), respectively.

Pending before

the court is plaintiff's motion for leave to proceed in forma

pauperis pursuant to 28 U.S.C. § 1915 (doc. #2) as well as his

motion for appointment of counsel.1 (Doc. #3.)

Based on

plaintiff's financial affidavit, the motion to proceed in forma

pauperis is GRANTED.

However, I recommend that his complaint be

dismissed without prejudice pursuant to 28 U.S.C. §

1915(e) (2) (B) .

His motion for appointment of counsel is DENTED.

Legal Standard

The same statute that authorizes the court to grant in

forma pauperis status to a plaintiff also contains a provision

^.S. District Judge Robert N. Chatigny referred the pending

motions to me on June 15, 2016. (Doc. #8.)

* V

»'

that protects against abuses of this privilege,

Subsection (e)

provides that the court "shall dismiss the case at any timeTf

the court determines that .

frivolous or malicious;

. the action .

(i) is

(ii) fails to state a claim upon which

relief may be granted; or (iii) seeks monetary relief against a

defendant who is immune from such relief."

28 U.S.C. §

1915(e) (2) (B) ; Neitzke v. Williams,. 490 U.S. 319, 325 (1989).

II.

Discussion

Plaintiff's complaint appears to challenge the court's

February 4, 2009 judgment against him in an earlier lawsuit he

filed in 2004.

See Everson v. Comm'r of Correction, Docket No.

04-cv-387(RNC)

(D. Conn. Feb. 4, 2009).

Plaintiff pleads the

same underlying facts as he did in the 2004 case.

He was

arrested in October and November 2000, but the charges later

were dismissed.

Immediately following both arrests, plaintiff

alleges that his employer, the Department of Correction ("DOC"),

"began its employee arrest procedure," with which plaintiff

maintains he cooperated fully.

Nonetheless, in March 2001, the

DOC terminated plaintiff's employment,

In April 2004, he filed

a complaint with this court pursuant to 42 U.S.C. § 1983,

alleging employment discrimination on the basis of his race.

February 2009, Judge Chatigny granted summary judgment in favor

of defendants .-

Plaintiff appealed to the Second Ci'rcuit, which

dismissed his appeal for failure to pay the filing fee.

filed a motion to reopen the case, which was denied,

Plaintiff

filed a petition for a writ of certiorari, which the United

States Supreme Court denied in November 2010.

"Under the doctrine of res judicata, or claim preclusion,

[a] final adjudication on the merits of an action precludes the

parties or their privies from relitigating issues that were or

could have been raised in that action."

F.3d 394, 399 (2d Cir. 2000)

St. Pierre v. Dyer, 208

(internal quotation marks omitted)

"Once a final judgment has been entered on the merits of the

case , that judgment will bar any subsequent litigation by the

same parties or those in privity with them concerning the

transactions out of which the first action arose .

The

doctrine of res judicata mandates the sua sponte dismissal of

the instant action."

Wasser v. Battista, No. 12-CV-2455

(RRM)(LB), 2012 WL 1901957, at *2 (E.D.N.Y. May 23, 2012).

Plaintiff's attempt to relitigate claims that already were

decided by this court is barred by the doctrine of res judicata

and thus,>; his complaint should be dismissed.

Eze v. Scott, No.

10-CV-1017, 2011 WL 4383140, at *4 (W.D.N.Y. Sept. 14, 2011)

("[R]epetitious litigation of virtually identical causes of

action is subject to dismissal under 28 U.S.C. § 1915 [e].")

(internal quotation marks omitted).

Turning to plaintiff's request for appointment of counsel,

a plaintiff in a civil case is not entitled to appointment of a

« V

free lawyer on request and the Second Circuit repeatedly has

cautioned district courts against the routine appointment of

counsel.

See, e-g., Hendricks v. Coughlin, 114 F.3d 390, 393

(2d Cir. 1997); Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d

Cir. 1989).

Because volunteer-lawyer time is in short supply, a

plaintiff seeking appointment of a free lawyer must show first

that he "sought counsel and has been unable to obtain it."

McDonald v. Head Criminal Court Supervisor Officer, 850 F.2d

121, 123 (2d Cir. 1988).

If the plaintiff has been unable to

obtain counsel, he must then demonstrate that his complaint

passes the test of "likely merit."

Cooper at 173.

This

standard reguires a plaintiff to show that the claims in the

complaint have a sufficient basis to justify appointing a

volunteer lawyer to pursue them.

In light of my recommendation

to dismiss plaintiff's complaint on res judicata grounds,

plaintiff's motion for appointment of counsel is DENIED.

III.

Conclusion

For these reasons, plaintiff's motion

to proceed --in

forma

----------------

pauperis (doc. #2) is GRANTED, but I recommend that his

complaint be dismissed without prejudice,

Plaintiff's motion

for appointment of counsel (doc. #3) is DENIED.

Any party may seek the district court's review of this

•recommendation.

See 28 U.S.C. § 636(b)

(written objections to

proposed findings and recommendations must be filed within

V *1> '

fourteen days after service of same); Fed. R. Civ. P. 6(a), 6(d)

& 72; Thomas v. Arn, 474 U.S. 140, 155 (1985); Frank v. Johnson,

968 F.2d 298, 300 (2d Cir. 1992)

(failure to file timely

objections to Magistrate Judge's recommended ruling waives

further review of the ruling).

Dated this 3rd day of August, 2016 at Hartford,

Connecticut.

___________ ;________ / S /________________ _

Donna F. Martinez

United States Magistrate Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.