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10-669-pr
McGarry v. Pallito, et al.
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UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
_____________________
August Term, 2011
(Argued: March 7, 2012
Docket No. 10-669-pr
_____________________
FINBAR MCGARRY
Plaintiff-Appellant,
v.
ANDREW PALLITO, Commissioner, Vermont Department of Corrections (sued in
his individual
capacity), GREG HALE, Superintendent, Chittenden Regional Correctional
Facility (sued in his
individual capacity), RICHARD BYRNES, CLUS, Chittenden Regional
Correctional Facility (sued
in his individual capacity), RICHARD GALLOW, Chittenden Regional
Correctional Facility (sued
in his individual capacity), JOE WOLSKE, Chittenden Regional Correctional
Facility (sued in his
individual capacity), JOHN CANNON, Chittenden Regional Correctional
Facility (sued in his
individual capacity), FORCIER, CO, Chittenden Regional Correctional
Facility (sued in his
individual capacity), SHERYLYN MATTHANS, Chittenden Regional Correctional
Facility (sued in
her individual capacity), JEFF COBB, Chittenden Regional Correctional
Facility (sued in his
individual capacity), PAUL CROSS, Chittenden Regional Correctional
Facility (sued in his
individual capacity), SAMUEL SANTOS, Chittenden Regional Correctional
Facility (sued in his
individual capacity), MICHAEL LIFF, Chittenden Regional Correctional
Facility (sued in his
individual capacity), VARIOUS TURNKEYS, Chittenden Regional Correctional
Facility (sued in
their individual capacities), EVELYN CUSHINGS, Vermont Department of Labor (
sued in her
individual capacity), VARIOUS LAWYERS, Vermont Department of Labor (sued
in their individual
capacities), WILLIAM SORRELL, Office of Vermont Attorney General (sued in
his individual
capacity), STATE OF VERMONT,
1
Defendants-Appellees.
Before: KATZMANN, B.D. PARKER, and WESLEY, Circuit Judges.
Decided: August 3, 2012)
The Clerk of the Court is directed to amend the official caption of this
action to conform
to the caption listed above.
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Plaintiff-Appellant Finbar McGarry brought a suit pursuant to 42 U.S.C. §
1983 alleging
that Defendants-Appellees violated his Thirteenth Amendment right to be
free from involuntary
servitude. The United States District Court for the District of Vermont (
Murtha, J.) granted
defendants’ motion to dismiss, and McGarry appealed. We hold that McGarry
has stated a claim
for relief under the Thirteenth Amendment. Accordingly, the judgment below
is REVERSED
and REMANDED.
___________________
DANIEL ALLAN MCLAUGHLIN (ARAVIND RATNAM
GANESH, on the brief) Sidley Austin LLP, New
York, NY, for Plaintiff-Appellant.
DAVID MCLEAN, Assistant Attorney General, for
William H. Sorrell, Attorney General of the State of
Vermont, for Defendants-Appellees.
__________________________________________________________________________
BARRINGTON D. PARKER, Circuit Judge:
Plaintiff-Appellant Finbar McGarry appeals from a judgment of the United
States District
Court for the District of Vermont (Murtha, J.) dismissing his pro se
complaint, which alleged
that Defendants-Appellees (“defendants”) violated his Thirteenth Amendment
right to be free
from involuntary servitude.2
McGarry alleges that while he was a pretrial detainee at the
Chittenden Regional Correction Facility (“CRCF”) in Vermont, prison
officials compelled him
to work in the prison laundry under threat of physical restraint and legal
process. The district
court dismissed the complaint, reasoning that McGarry failed to state a
claim under the
Thirteenth Amendment because he did not allege that his work in the
laundry was “like the
In addition, McGarry’s pro se complaint alleged (1) violation of his First
Amendment
rights related to access to reading materials; (2) violation of his First
and Sixth Amendment rights arising
from restrictions on his access to mail and telephone communication with
his attorney; (3) and violations
of the Fair Labor Standards Act, 29 U.S.C. § 201. The district court
dismissed all claims. McGarry
appeals only from the dismissal of his Thirteenth Amendment claim.
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slavery that gave rise to the enactment of [the Thirteenth] Amendment.”
McGarry v. Pallito, No.
1:09-CV-128, 2010 WL 679056, at * 8 (D. Vt. Feb. 27, 2010). On appeal,
McGarry contests the
dismissal. We agree with him and hold that his complaint plausibly states
a claim under the
Thirteenth Amendment. We also hold that, at this preliminary stage in the
proceedings,
defendants have not established an entitlement to qualified immunity.
Accordingly, we reverse
the judgment of the district court and remand for further proceedings.
BACKGROUND
The following facts are drawn from McGarry’s pro se pleadings, which we
construe
liberally. See Weixel v. Bd. of Educ. of City of N.Y., 287 F.3d 138, 145-
46 (2d Cir. 2002). In
December 2008, Vermont police arrested McGarry on charges stemming from a
domestic
dispute. The State denied his bail application and remanded him to the
CRCF, where he
remained until his release in June 2009. All charges against him were
subsequently dismissed.
CRCF houses approximately 200 persons, including both federal and state
pretrial detainees and
sentenced inmates. The facility is divided into different living units,
referred to as Houses.
McGarry alleges that all inmates in House 1, including pretrial detainees,
are required to work in
the prison facility. Defendants essentially concede this point but seek to
justify the work
requirement for convicted inmates as well as pretrial detainees on the
ground that it serves a
legitimate rehabilitative interest in “educating offenders about real
world responsibilities.”
Appellees’ Br. at 3.
McGarry alleges that in mid-February 2009 defendants directed him to move
to House 1
and required him to work in the prison laundry over his repeated
objections. He alleges that he
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had no choice because defendants told him that his refusal to work would
result in his being
placed in administrative segregation or “put in the hole,” which, he
alleges, involves lock-up for
23 hours-a-day and the use of shackles. McGarry further alleges that
defendants told him that he
would receive an Inmate Disciplinary Report (“DR”) if he refused to work,
and that even minor
DRs affect when sentenced inmates are eligible for release.
McGarry alleges that he was compelled to work long hours in the prison
laundry in hot,
unsanitary conditions. He alleges that the bathroom adjacent to the
laundry room was bolted
shut and that, although he was required to handle other inmates’ soiled
clothing, he was not
provided with gloves or access to a sink or hand-cleaning products. He
further alleges that he
was required to work under these conditions on shifts lasting up to
fourteen hours per day, three
days a week. Finally, he alleges that his work in the laundry caused a
painful staph infection in
his neck that manifested itself as a series of reoccurring lesions.
After unsuccessfully grieving these conditions, McGarry filed a pro se
complaint against
various prison officials.3
Defendants moved under Rule 12(b)(6) to dismiss McGarry’s
complaint. The court referred the motion to Magistrate Judge John M.
Conroy, who issued a
Report and Recommendation (“R&R”) recommending, inter alia, that McGarry’s
Thirteenth
Amendment claim be dismissed. McGarry, 2010 WL 679056, at *1. The
Magistrate sua sponte
concluded that McGarry’s Thirteenth Amendment allegations were barred as a
matter of law
Because McGarry’s claim was dismissed solely on the ground that he failed
to state a
claim under the Thirteenth Amendment, the district court never reached the
question of whether the
complaint correctly named the responsible prison officials or sufficiently
pleaded the involvement of each
individual defendant. The adequacy of the complaint in this regard is best
considered in the first instance
by the district court. See Farricielli v. Holbrook, 215 F.3d 241, 246 (2d
Cir. 2000) (per curiam); see also
Fulton v. Goord, 591 F.3d 37, 45 (2d Cir. 2009).
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because being forced to work in the laundry was “nothing like the slavery
that gave rise to the
enactment of [the] Amendment.” Id. at *8. Finding that McGarry’s “laundry
claim” failed “to
allege labor that was akin to African slavery,” id. at *6 (internal
quotation marks omitted), the
Magistrate recommended dismissing his claim and denying leave to amend,
holding that any
other outcome would “trivialize the pain and anguish that the Thirteenth
Amendment sought to
remedy.” Id. (quoting Ford v. Nassau Cnty. Exec., 41 F. Supp. 2d 392, 401 (
E.D.N.Y. 1999)).
The district court adopted the R&R in full and dismissed the complaint. Id.
at *1. This appeal
followed.
On appeal, McGarry contends that his allegations of work compelled by
threats of
physical force or legal sanction state a claim under the Thirteenth
Amendment. Defendants
contend that compelled work is insufficient to state a claim and that
McGarry must also allege
that the work was similar to African slavery, a condition which --
defendants contend -- is not
present here, and that, in any event, they are entitled to qualified
immunity. We review the
dismissal of McGarry’s Thirteenth Amendment claim de novo. See Papelino v.
Albany Coll. of
Pharmacy of Union Univ., 633 F.3d 81, 88 (2d Cir. 2011). In conducting
this review, we
construe the complaint liberally, “accepting all factual allegations in
the complaint as true, and
drawing all reasonable inferences in the plaintiff’s favor.” Chase Grp.
Alliance LLC v. City of
N.Y. Dep’t of Fin., 620 F.3d 146, 150 (2d Cir. 2010) (internal quotation
marks omitted). We are
cautious about the hasty dismissal of complaints alleging civil rights
violations. See Gregory v.
Daly, 243 F.3d 687, 691 (2d Cir. 2001).
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DISCUSSION
The Thirteenth Amendment provides that “[n]either slavery nor involuntary
servitude,
except as a punishment for crime whereof the party shall have been duly
convicted, shall exist
within the United States, or any place subject to their jurisdiction.” U.S.
Const. amend. XIII, §1.
Shortly after its passage, the Supreme Court held that the Amendment “is
not a mere prohibition
of State laws establishing or upholding slavery, but an absolute
declaration that slavery or
involuntary servitude shall not exist in any part of the United States.”
Civil Rights Cases, 109
U.S. 3, 20 (1883). Contrary to the district court’s conclusion, it is well-
settled that the term
“involuntary servitude” is not limited to chattel slavery-like conditions.
The Amendment was
intended to prohibit all forms of involuntary labor, not solely to abolish
chattel slavery. See
Slaughter-House Cases, 83 U.S. 36, 69 (1872) (“The word servitude is of
larger meaning than
slavery . . . .”); see also Pollock v. Williams, 322 U.S. 4, 17-18 (1944) (
noting that the
“undoubted aim of the Thirteenth Amendment . . . was not merely to end
slavery but to maintain
a system of completely free and voluntary labor throughout the United
States”). Although
passed in response to the scourge of American slavery, the Amendment is “
not a declaration in
favor of a particular people,” Hodges v. United States, 203 U.S. 1, 16 (
1906), overruled in part
on other grounds, Jones v. Alfred H. Mayer Co., 392 U.S. 409 (1968), but
extends to “reach[]
every race and every individual,” id. In United States v. Nelson, 277 F.3d
164, 178 (2d Cir.
2002), for example, we held that Jews were among the “races” protected by
the Thirteenth
Amendment.
Because the Thirteenth Amendment “denounces a status or condition,
irrespective of the
manner or authority by which it is created,” Clyatt v. United States, 197
U.S. 207, 216 (1905),
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institutions housing pretrial detainees are not exempt from the
Amendment’s scope. McGarry
was not “duly convicted,” U.S. Const. amend XIII, and therefore does not
fall within the
category of persons to whom the Amendment, on its face, does not apply. Of
course, persons
sometimes may be detained in advance of securing a conviction. See United
States v. Salerno,
481 U.S. 739, 741 (1987). On entering state custody, pretrial detainees
surrender “[m]any of the
liberties and privileges enjoyed by other citizens” even though they are
still clothed in the
presumption of innocence.4
See Overton v. Bazzetta, 539 U.S. 126, 131 (2003). However,
although a state may subject a pretrial detainee to restrictions and
conditions of the detention
facility, such conditions may not violate the Constitution. See Bell v.
Wolfish, 441 U.S. 520,
533, 536-37 (1979). Pretrial detainees are not outside the ambit of the
Thirteenth Amendment’s
involuntary servitude provision.5
In United States v. Kozminski, 487 U.S. 931, 952 (1988), the Supreme Court
defined
involuntary servitude as “a condition of servitude in which the victim is
forced to work for the
defendant by the use or threat of physical restraint or physical injury,
or by the use or threat of
coercion through law or the legal process.” Kozminski did not break new
ground. This Court in
United States v. Shackney, 333 F.2d 475, 486 (2d Cir. 1964) concluded that
work obtained or
maintained by the use or threatened use of physical or legal coercion is “
akin to African slavery,
although without some of the latter’s incidents.” (internal quotation
marks omitted). Indeed, we
4
And it is obvious to us that conditions of confinement, pre-trial as well
as post-
conviction, are not intended to be -- and rarely are -- pleasant.
Consistent with that position, federal corrections regulations provide
that “[a] pretrial
inmate may not be required to work in any assignment or area other than
housekeeping tasks in the
inmates’ own cell and in the community living area, unless the pretrial
inmate has signed a waiver of his
or her right not to work.” 28 C.F.R. § 545.23(b).
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noted that it “would be grotesque to read ‘involuntary servitude’ as not
covering a situation
where an employee was physically restrained by guards,” or where servitude
was created “by a
credible threat of imprisonment.” Id.
McGarry’s allegations state a claim under the Thirteenth Amendment. He
alleges that his
work in the prison laundry was compelled and maintained by the use and
threatened use of
physical and legal coercion. He supports his allegations with well-pleaded
facts that the
defendants threatened to send him to “the hole” if he refused to work and
that he would thereby
be subjected to 23 hour-per-day administrative confinement and shackles.
These allegations
plausibly allege “threat of physical restraint or physical injury” within
the meaning of Kozminski.
See Kozminski, 487 U.S. at 952. Likewise, McGarry also plausibly alleges
facts supporting his
assertion that defendants coerced him through legal process by threatening
him with DRs, which
are alleged to be taken into consideration when making recommendations for
a release date and,
therefore, lengthen any period of incarceration.
On appeal, defendants do not seriously contest that what was required of
McGarry
constituted work or that it was coerced.6
Instead they contend that, on the face of the pleadings,
they are entitled to qualified immunity. “The doctrine of qualified
immunity protects
government officials ‘from liability for civil damages insofar as their
conduct does not violate
clearly established statutory or constitutional rights of which a
reasonable person would have
known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow v.
Fitzgerald, 457
Although defendants’ (12)(b)(6) motion to the district court argued that
McGarry’s work
was voluntary, they did not pursue this argument on appeal. On appeal,
they principally contend that his
claim must be dismissed because permitting it to go forward “would demean
and trivialize the deep
significance of the Thirteenth Amendment in the history of this country.”
Appellees’ Br. at 12.
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U.S. 800, 818 (1982)). Defendants are entitled to qualified immunity “if
either (a) the
defendant’s action did not violate clearly established law, or (b) it was
objectively reasonable for
the defendant to believe that his action did not violate such law.”
Anderson v. Recore, 317 F.3d
194, 197 (2d Cir. 2003) (internal quotation marks omitted). To be clearly
established, “[t]he
contours of the right must be sufficiently clear that a reasonable
official would understand that
what he is doing violates that right.” Anderson v. Creighton, 483 U.S. 635,
640 (1987). In
determining whether a right is clearly established, we consider “(1)
whether the right was
defined with reasonable specificity; (2) whether Supreme Court or court of
appeals case law
supports the existence of the right in question, and (3) whether under
preexisting law a
reasonable defendant would have understood that his or her acts were
unlawful.” Scott v.
Fischer, 616 F.3d 100, 105 (2d Cir. 2010). In assessing objective
reasonableness, we look to
whether “officers of reasonable competence could disagree on the legality
of the defendant’s
actions.” Lennon v. Miller, 66 F.3d 416, 420 (2d Cir. 1995) (internal
quotation marks omitted).
The defendants seek qualified immunity on two grounds. First, they contend
it was
objectively reasonable for defendants to believe they could compel
pretrial detainees to work
because the work program advances a legitimate interest in rehabilitation.
Specifically, they
contend it was permissible to compel pretrial detainees to work in order
to “impart skills and
habits that would ease the process of reintegrating into free society” in
light of the “State[’s]
legitimate interest in reforming its inmates.” Appellees’ Br. at 16.
Secondly, defendants
contend that a housekeeping exception for inmates exists under the
Thirteenth Amendment and,
consequently, it was objectively reasonable to assume that pretrial
detainees can be “required to
perform housekeeping chores while incarcerated.” Id. at 33.
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Turning to the first ground, we are mindful that federal courts must
afford “appropriate
deference and flexibility to state officials trying to manage a volatile [
prison] environment.”
Sandin v. Conner, 515 U.S. 472, 482 (1995). However, it is clearly
established that a state may
not “rehabilitate” pretrial detainees. The Supreme Court has unambiguously
and repeatedly held
that a state’s authority over pretrial detainees is limited by the
Constitution in ways that the
treatment of convicted persons is not. In McGinnis v. Royster, 410 U.S.
263, 273 (1973) the
Supreme Court concluded that “it would hardly be appropriate for the State
to undertake in the
pretrial detention period programs to rehabilitate a man still clothed
with a presumption of
innocence.” See also Bell, 441 U.S. at 536 (noting that a state may “
detain [a person] to ensure
his presence at trial and may subject him to the restrictions and
conditions of the detention
facility so long as those conditions and restrictions do not amount to
punishment, or otherwise
violate the Constitution.”) (emphasis added)); Houchins v. KQED, Inc. 438
U.S. 1, 37-38 (1978)
(Stevens, J., dissenting) (noting that certain penological objectives,
such as punishment,
deterrence, and rehabilitation, are inapplicable to pretrial detainees);
cf. Salerno, 481 U.S. at 747
(distinguishing between “impermissible punishment” and “permissible
regulation” of pretrial
detainees).
This Court also has held that, while the State has legitimate interests in
the health, safety,
and sanitation of the correctional facility and its inhabitants, where
pretrial detainees are
concerned, those interests do not include rehabilitation. See United
States v. El-Hage, 213 F.3d
74, 81 (2d Cir. 2000) (“Where the regulation at issue imposes pretrial,
rather than
post-conviction, restrictions on liberty, the legitimate penological
interests served must go
beyond the traditional objectives of rehabilitation or punishment.”) (
internal quotation marks
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omitted)). In light of this authority, it was clearly established that
prison officials may not
rehabilitate pretrial detainees, and it was not “objectively reasonable”
for defendants to conclude
otherwise.7
Defendants assert a second basis for qualified immunity, that “cases
addressing the rights
of pretrial detainees undermine the argument that a reasonable defendant
would have understood
that compelled housekeeping work violates constitutional rights.”
Appellees’ Br. at 33. In
Jobson v. Henne, 355 F.2d 129 (2d Cir. 1966), we assumed, without holding,
that the Thirteenth
Amendment does not foreclose states from requiring lawfully committed
inmates to perform
certain chores without compensation. Id. at 131. We premised this
assumption on the
understanding that the program in question “ha[s] a therapeutic purpose,
or [is] reasonably
related to the inmate’s housekeeping or personal hygienic needs.” Id. at
132 n.3. The “personal”
nature of the exception was required because “[a]ll understand . . . . [
the Thirteenth Amendment
to ban] a condition of enforced compulsory service of one to another.”
Hodges, 203 U.S. at 16
(emphasis added). Where a detainee is required to perform personally-
related chores, this work
is not “for another.” We made clear that “the Thirteenth Amendment may be
violated if a[n] . . .
institution requires inmates to perform chores which . . . are not
personally related, but are
required to be performed solely in order to assist in the defraying of
institutional costs.” Jobson,
355 F.2d at 132 n.3.
Normally, where it is alleged that a “a prison restriction infringes upon
a specific
constitutional guarantee,” this Court will evaluate the restriction “in
light of institutional security.
Security is the main objective of prison administration; prison officials
must have broad latitude to adopt
rules that protect the safety of inmates and corrections personnel and
prevent escape or unlawful entry.”
United States v. Cohen, 796 F.2d 20, 22 (2d Cir. 1986). Here, however,
defendants advance no security-
related rationale for compelling detainees to do the institution’s laundry.
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We are prepared to continue to assume that correctional institutions may
require inmates
to perform personally related housekeeping chores such as, for example,
cleaning the areas in or
around their cells, without violating the Thirteenth Amendment. However,
on a motion to
dismiss, “it is the defendant’s conduct as alleged in the complaint that
is scrutinized for objective
legal reasonableness.” Behrens v. Pelletier, 516 U.S. 299, 309 (1996) (
internal quotation marks
and emphasis omitted). As such, we look to the complaint to determine if,
at the pleading stage,
defendants are entitled to qualified immunity. It is clearly established
that requiring hard labor
of pretrial detainees -- persons not “duly convicted” -- violates the
Thirteenth Amendment. See
U.S. Const. amend. XIII, § 1. Reviewing the allegations of the complaint
in the light most
favorable to McGarry, we conclude that a pretrial detainee’s compelled
work in a laundry for up
to 14 hours a day for three days a week doing other inmates’ laundry
cannot reasonably be
construed as personally related housekeeping chores and that officers of
reasonable competence
could not disagree on these points. See Anderson, 483 U.S. at 639.
Accordingly, we conclude
that, at this stage of the proceeding, defendants have not demonstrated
that they are entitled to
qualified immunity.
CONCLUSION
The judgment of the district court is REVERSED and the case is REMANDED to
the
district court for further proceedings in accordance with this opinion.
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