Morgan v. Pallito, Nos. 309-5-14 Wncv and 568-9-14 Wncv (Teachout, J., Sept. 4, 2015).
[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the
accompanying data included in the Vermont trial court opinion database is not guaranteed.]

                                                       STATE OF VERMONT

SUPERIOR COURT                                                                                          CIVIL DIVISION
Washington Unit                                                                                         Docket Nos. 309-5-14 Wncv
                                                                                                        and 568-9-14 Wncv
MATTHEW MORGAN
    Plaintiff

           v.

ANDREW PALLITO, Commissioner,
Vermont Department of Corrections
     Defendant


                                                    DECISION
                                 The State’s Motions for Judgment on the Pleadings

         Inmate Matthew Morgan has filed two cases arising out of his incarceration.1 In each, the
only named defendant is Andrew Pallito, the Commissioner of the Vermont Department of
Corrections. In the case docketed as No. 309-5-14 Wncv, Mr. Morgan complains that the DOC
has failed to keep him safe from other identified prisoners who present an ongoing risk of harm
to him and in fact have attacked and injured him seriously more than once. In the case docketed
as No. 568-9-14 Wncv, Mr. Morgan complains that, while being housed in an out-of-state
facility, he was repeatedly placed in disciplinary segregation for periods substantially longer than
permitted under Vermont law. Based on the pleadings, the State seeks a ruling in each case that
Commissioner Pallito has absolute immunity as a matter of law and thus these cases should be
dismissed.

        The State’s motions are predicated on its narrow interpretation of the complaints. In each
case, the State characterizes Mr. Morgan’s claims as a form of common law negligence. It then
argues that the Commissioner Pallito has absolute immunity against such a claim. To the extent
that Mr. Morgan is attempting to assert common law negligence claims against Commissioner
Pallito in his individual capacity, he has absolute immunity as the State argues. See Curran v.
Marcille, 152 Vt. 247, 248–49 (1989) (explaining that the Commissioner of the Vermont
Department of Corrections is a high-level official with absolute immunity to a common law
negligence claim).

        However, the immunity doctrine on which the State relies applies only to state claims
against defendants in their individual capacity. See id. at 248 (explaining that sovereign
immunity is the doctrine that applies to claims against the State); Sec. 1983 Litig. Claims &
Defenses § 9.01(b)[2] (explaining that “state law immunity defenses and privileges do not apply”
to federal claims brought under 42 U.S.C. § 1983).

1
 These cases have not been consolidated pursuant to Rule 42. The pending motions are nearly identical and are
being decided in this joint decision in the interest of efficiency only. The parties are cautioned against submitting
any joint filings.
        In each case, Mr. Morgan alleges, in places, that Commissioner Pallito has been
negligent. In the inmate violence case, he also speaks of deliberate indifference to the risk of
harm to him, an Eighth Amendment claim. In the segregation case, he speaks of due process. In
both cases he seeks damages. He appears no longer to seek equitable relief in the inmate
violence case, but he appears to request it in the segregation case for several reasons. Equitable
relief would be available against the State, not Commissioner Pallito in his individual capacity.
In neither case has Mr. Morgan made clear that he has sued Commissioner Pallito in his
individual capacity alone.

        Mr. Morgan’s claims are not well developed at this point and they may prove in the end
to lack merit. However, at this stage of the pleadings, the State has interpreted them far too
narrowly to permit dismissal.


                                            ORDER

        For the foregoing reasons, the State’s motions for judgment on the pleadings is granted in
part and denied in part.

       Dated at Montpelier, Vermont this ____ day of August 2015.


                                                     _____________________________
                                                     Mary Miles Teachout,
                                                     Superior Judge




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