Freeman v. Ellis, et al

Filing 55

DECISION AND ORDER. Signed by Hon. William K. Sessions III on 6/13/2022. (CGJ)

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 1 of 19

UNITED STATES DISTRICT COURT
FOR THE
WESTERN DISTRICT OF NEW YORK

MISTY FREEMAN,
Plaintiff,
v.
CITY OF JAMESTOWN POLICE OFFICER
ELLIS; CITY OF JAMESTOWN POLICE
SGT. BENDER; CITY OF JAMESTOWN
POLICE LT. JACKSON; and
CITY OF JAMETOWN POLICE OFC.
JOHN DOE(S)
Defendants.

:
:
:
:
:
:
:
:
:
:
:
:
:
:

Case No. 1:17-cv-683

OPINION AND ORDER FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff Misty Freeman of Jamestown, New York (“NY”)
brings this action against several City of Jamestown police
officers for allegedly violating her constitutional rights.
Specifically, Ms. Freeman alleges that Defendant Police Officer
Aaron Ellis unlawfully entered her home in violation of the
Fourth Amendment of the United States Constitution. She also
alleges that Officer Ellis, as well as Sergeant Robert Bender
and Lieutenant Timothy Jackson, engaged in false arrest.
Finally, she brings malicious prosecution and retaliatory action
claims against Sergeant Bender and Lieutenant Jackson. Officer
Ellis denies ever entering Ms. Freeman’s home. The remaining
Defendants argue that Ms. Freeman’s arrest was justified and

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 2 of 19

that they did not engage in malicious prosecution or retaliatory
conduct.
The Court held a two-day bench trial on May 16 and May 17,
2022. At the conclusion of the evidence, Defendants moved to
dismiss the unlawful entry and the unlawful arrest claims
against Officer Ellis, as well as the malicious prosecution and
retaliatory action claims against Lieutenant Jackson. The Court
granted Defendants’ motion as to the unlawful arrest claim
against Officer Ellis and reserved judgment on all other claims.
Based upon the testimony of witnesses, the evidence
submitted, and arguments made by counsel, the Court makes the
following findings of fact and conclusions of law, as required
by Rule 52 of the Federal Rules of Civil Procedure. In sum, the
Court finds for Defendants on all counts.
I.

Findings of Fact
1. Plaintiff Misty Freeman is a resident of Jamestown, NY.
On September 27, 2015, the date giving rise to the causes
of action now before the Court, she resided at 108 Pearl
Avenue, Jamestown, NY 14701 with her three children.
2. Defendant Police Officer Aaron Ellis, Defendant Sergeant
Robert Bender, and Defendant Lieutenant Timothy Jackson
were all employed by the City of Jamestown Police
Department (“Jamestown Police Department”) during the
period in question and were all acting in their
professional capacities during the events that gave rise
to this lawsuit.

2

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 3 of 19

3. During the summer of 2015, Ms. Freeman allowed Nicholas
Desnerck, Mr. Desnerck’s girlfriend, and Mr. Desnerck’s
dog to stay at her home in Jamestown, NY.
4. The couple left the residence in the middle of September,
leaving behind some personal items and the dog. Mr.
Desnerck asked Ms. Freeman to care for his dog while he
was away.
5. On September 24, 2015, Mr. Desnerck came to Ms. Freeman’s
home to discuss the return of his dog and property.
6. Ultimately, they could not agree on the return of that
property.
7. On September 27, 2015, Mr. Desnerck went to the Jamestown
Police Department, seeking assistance in obtaining his
property.
8. Mr. Desnerck told Officer Aaron Ellis that he had been a
resident of Ms. Freeman’s home and that his personal
belongings were inside the home.
9. Officer Ellis agreed to act as a peace officer and
accompany Mr. Desnerck to Ms. Freeman’s residence in an
effort to get the items.
10.

A peace officer’s sole purpose is to maintain the
peace while helping to facilitate stressful
interactions; it is not to engage in law enforcement
or investigative efforts.

11.

Upon arriving at Ms. Freeman’s residence, Mr. Desnerck
entered the mudroom.

12.

Officer Ellis walked behind Mr. Desnerck as they
approached the house.

13.

Mr. Desnerck testified that he saw Officer Ellis
behind him and on the steps of the residence but did
not see him in the mudroom.

14.

Officer Ellis testified that he never entered the
mudroom.
3

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 4 of 19

15.

Ms. Freeman testified that Officer Ellis walked behind
Mr. Desnerck and entered the mudroom.

16.

A shouting match between Ms. Freeman and Mr. Desnerck
ensued.

17.

Rebecca Freeman, Ms. Freeman’s daughter, testified
that Officer Ellis was “just kind of standing there”
and Mr. Desnerck testified that Officer Ellis was
“professional” during the encounter. Ms. Freeman
testified that Officer Ellis became threatening
towards her.

18.

Ms. Freeman ordered Mr. Desnerck and Officer Ellis to
leave her property and they complied.

19.

Ms. Freeman then went to the Jamestown Police
Department to report what had happened.

20.

Ms. Freeman was interviewed by Sergeant Robert Bender.

21.

According to Sergeant Bender’s deposition, Ms. Freeman
told him that Officer Ellis broke the lock and kicked
the door in.

22.

Sergeant Bender then told Lieutenant Jackson about Ms.
Freeman’s report, specifically that she alleged that
Officer Ellis kicked in her door.

23.

In her police report and supporting deposition, Ms.
Freeman attested that Officer Ellis and Mr. Desnerck
entered through her front door into the mudroom and
broke a lock on the outer door.

24.

After hearing Ms. Freeman’s allegation, Lieutenant
Jackson investigated Ms. Freeman’s residence.

25.

Lieutenant Jackson found no evidence of forceable
entry. He also testified that he spoke to Matthew
Freeman, and Matthew told him that nothing had
happened.

4

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 5 of 19

26.

Sergeant Bender and Lieutenant Jackson together
concluded that there was probable cause to believe
that Ms. Freeman had submitted a false statement.

27.

According to Sergeant Bender and Lieutenant Jackson,
the basis for this probable cause finding was Ms.
Freeman’s allegation that Officer Ellis had kicked in
her door, broken the lock, and illegally entered the
residence—an account that differed from the reports
given by Mr. Desnerck, Matthew Freeman, and Officer
Ellis.

28.

A City Court Judge in Jamestown, NY found probable
cause that Ms. Freeman had made a false written
statement and issued an arrest warrant.

29.

On October 3, 2015, members of the Jamestown Police
Department went to Ms. Freeman’s home to execute the
arrest warrant.

30.

While at her home, police officers were told that Ms.
Freeman was at her daughter’s football game.

31.

The officers called in for more officers and went to
the football game to arrest Ms. Freeman.

32.

Ms. Freeman was then arrested and escorted to the
police station.

33.

She was held at the police station until the following
day.

34.

The charge against Ms. Freeman was dismissed without
prejudice on April 27, 2016, by Judge Frederick
Larson.

35.

Ms. Freeman filed a Notice of Claim against members of
the Jamestown Police Department on June 27, 2016.

36.

Assistant District Attorney Bridget Kleinfelder sent
Sergeant Bender a memo on May 6, 2016, notifying him
that he could refile charges against Ms. Freeman.

5

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 6 of 19

37.

The Jamestown Police Department filed a new criminal
complaint against Ms. Freeman on July 29, 2016.

38.

Ms. Freeman was rearrested on August 3, 2016, on the
same charge of making a false written statement.

39.

The second charge was dismissed by Judge Frederick
Larson on November 10, 2016, because of a violation of
the speedy trial time limitations set forth in New
York State Criminal Procedure Law § 30.30.

II.

Conclusions of Law

A. Fourth Amendment Unlawful Entry Claim
Ms. Freeman claims that Officer Ellis unlawfully entered her
home in violation of the Fourth Amendment. The Fourth Amendment
makes it unlawful for a police officer to subject a person to
“unreasonable searches and seizures.” U.S. Const. amend. IV.
“The home has properly been regarded as among the most highly
protected zones of privacy, and the sanctity of private
dwellings is ordinarily afforded the most stringent Fourth
Amendment Protection.” Ayeni v. Mottola, 35 F.3d 680, 685 (2d
Cir. 1994) (footnotes, brackets, and internal quotation marks
omitted). The Supreme Court has recognized that under Fourth
Amendment law “searches and seizures inside a home without a
warrant are presumptively unreasonable.” Welsh v. Wisconsin, 466
U.S. 740, 749 (1984). Warrantless entry into a home is
considered reasonable only when it meets “an exception to the
warrant requirement.” Anthony v. City of New York, 339 F.3d 129,
135 (2d Cir. 2003). In making this assessment, the “core
6

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 7 of 19

question is whether the facts, as they appeared at the moment of
entry, would lead a reasonable, experienced officer, to believe
that there was an urgent need to render aid or take action.”
United States v. Klump, 536 F.3d 113, 117-18 (2d Cir. 2008)
(internal citation and quotation marks omitted); see also
Tierney v. Davidson, 133 F.3d 189, 196 (2d. Cir 2001) (holding
that warrantless entry by officers is justified “to render
emergency aid”). This inquiry is “objective” and requires that a
court consider “the totality of the circumstances confronting
law enforcement agents in the particular case.” Klump, 536 F.3d
at 117 (internal quotation marks omitted).
In this case, the Court finds that the “emergency aid”
exception, under which “officers may enter a home without a
warrant to render emergency assistance to an injured occupant or
to protect an occupant from imminent injury,” is applicable. See
Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006). Officer
Ellis and Mr. Desnerck both claim that Officer Ellis never
entered the residence, while Ms. Freeman alleges that he did.
The Court finds that Plaintiff has not proven Officer Ellis did
in fact enter her residence. The Court comes to this conclusion
because Plaintiff relies solely on her testimony and her
daughter’s testimony to prove unlawful entry. Both Mr. Desnerck
and Officer Ellis testified that Officer Ellis did not enter the
mudroom. Matthew Freeman testified that he saw the individuals
7

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 8 of 19

leaving the property on the stairs but did not see them
physically in the mudroom. Therefore, the extent of Ms.
Freeman’s evidence that Officer Ellis entered unlawfully is her
and her daughter’s testimony from which the Court cannot
conclude that Officer Ellis entered the mudroom.
However, even assuming Officer Ellis did enter the mudroom,
an exception for warrantless entry would apply here. Officer
Ellis was present as a peace officer. Given that multiple
witnesses testified that Mr. Desnerck and Ms. Freeman engaged in
a verbal fight with shouting, it would not have been
unreasonable for Officer Ellis to enter the mudroom to help keep
the peace. Therefore, a limited incursion into the mudroom in
this context does not violate Ms. Freeman’s Fourth Amendment
rights.
Furthermore, even if Officer Ellis’ alleged entry into the
mudroom was determined to be unreasonable, he would be protected
by qualified immunity. Qualified immunity shields 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 U.S. 800, 818 (1982)). In deciding
whether qualified immunity applies to a government official’s
actions, a court must consider (1) “whether the facts shown
8

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 9 of 19

‘make out a violation of a constitutional right’”; and (2)
“‘whether the right at issue was clearly established at the time
of defendant’s alleged misconduct.’” Taravella v. Town of
Wolcott, 599 F.3d 129, 133 (2d Cir. 2010) (quoting Pearson, 555
U.S. at 223). A right is considered “clearly established” when
“[t]he contours of the right . . . [are] sufficiently clear that
a reasonable official would understand that what he is doing
violates that right.” Okin v. Vill. of Cornwall-On-Hudson Police
Dep’t, 577 F.3d 415, 433 (2d Cir. 2004) (quoting Anderson v.
Creighton, 483 U.S. 635, 640 (1987)).
The Court is not aware of any case law which would make it
clear to a reasonable officer that entry under these
circumstances would violate Plaintiff’s clearly established
rights. See D.C. v. Wesby, 138 S. Ct. 577, 590 (2018) (internal
quotation marks omitted) (noting “the need to identify a case
where an officer acting under similar circumstances . . . was
held to have violated the Fourth Amendment”). Furthermore,
courts have given officers “great latitude” to justify
warrantless entry in the context of domestic disputes. See
Tierney, 133 F.3d at 197 (“Courts have recognized the
combustible nature of domestic disputes, and have accorded great
latitude to an officer's belief that warrantless entry was
justified by exigent circumstances . . . .”). Given that this
case involves a domestic dispute, the Court cannot conclude that
9

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 10 of 19

a reasonable officer would be on notice that entering the
mudroom of a person’s home to help keep the peace would violate
clearly established law. Furthermore, the fact that the
potential for danger or violence in this case was not imminent
is not enough to deny an officer qualified immunity. See Batt v.
Buccilli,

725 F. App’x 23, 27 (2d Cir. 2018) (citing Wesby,

138 S. Ct at 590) (emphasis omitted) (noting that a plaintiff
could not rely on cases “that involved obvious and overt
emergencies” to deny qualified immunity because “[t]he simple
fact that the officers in [those] cases acted properly does not,
by implication, ‘clearly establish’ that [an officer]
acted improperly.”). As such, Officer Ellis is entitled to
qualified immunity.
The Court thus finds for Officer Ellis on the unlawful
entry claim.
B. Fourth Amendment Wrongful Arrest Claim
The Fourth Amendment protects against “unreasonable searches and
seizures” including wrongful arrests. U.S. Const. amend. IV. To
establish a false arrest claim under 42 U.S.C. § 1983, which
provides a vehicle for suing state actors who violate the United
States Constitution, a plaintiff must show that “the defendant
intentionally confined him without his consent and without
justification.” Weyant v. Okst, 101 F.3d 845, 852 (2d Cir.
1996). Therefore, a false arrest claim will not be successful if
10

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 11 of 19

a police officer had probable cause or arguable probable cause
to make the arrest. See Figueroa v. Mazza, 825 F.3d 89, 99 (2d
Cir. 2016) (“The existence of probable cause to arrest—even for
a crime other than the one identified by the arresting officer—
will defeat a claim of false arrest under the Fourth
Amendment.”); Escalera v. Lunn, 361 F.3d 737, 743 (2d Cir.
2004)(“Even if probable cause to arrest is ultimately found not
to have existed, an arresting officer will still be entitled to
qualified immunity from a suit for damages if he can establish
that there was ‘arguable probable cause’ to arrest.”). Probable
cause to arrest a person exists when the officer has “knowledge
or reasonably trustworthy information of facts and circumstances
that are sufficient to warrant a person of reasonable caution in
the belief that the person to be arrested has committed or is
committing a crime.” Weyant, 101 F.3d at 852. Arguable probable
cause exists “if either (a) it was objectively reasonable for
the officer to believe that probable cause existed, or (b)
officers of reasonable competence could disagree on whether the
probable cause test was met.” Golino v. City of New Haven, 950
F.2d 864, 870 (2d Cir. 1991). This inquiry is based on the
“facts available to the officer at the time of the arrest and
immediately before it” and does not mandate “absolute certainty”
on the officer’s part. See Panetta v. Crowley, 460 F.3d 388, 395
(2d Cir. 2006) (internal quotation marks and emphasis omitted).
11

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 12 of 19

“Courts should look to the totality of the circumstances and
must be aware that probable cause is a fluid concept—turning on
the assessment of probabilities in particular factual contexts—
not readily, or even usefully, reduced to a neat set of legal
rules.” Id. (internal quotation marks omitted).
Ms. Freeman alleges false or wrongful arrest claims against
Sergeant Bender and Lieutenant Jackson.
i.

Sergeant Bender

As noted above, a plaintiff cannot prevail on a false
arrest claim if the officer had probable or arguable probable
cause to arrest. See Figueroa, 825 F.3d at 99; Escalera, 361
F.3d at 743.
The Court concludes here that probable cause existed for
Ms. Freeman’s arrest. Under New York State law, a person is
guilty of making a punishable false written statement if he or
she “knowingly makes a false statement, which he does not
believe to be true, in a written instrument bearing a legally
authorized form notice to the effect that false statements made
therein are punishable.” New York Penal Code § 210.45.
A full review of the testimony, along with the depositions
submitted into evidence, allows the Court to conclude that there
was probable cause to arrest Ms. Freeman for submitting false
information to law enforcement. Sergeant Bender testified that
Ms. Freeman told him that Officer Ellis broke her lock, kicked
12

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 13 of 19

in her door, and entered her mud room unlawfully. However,
investigation of the door by Lieutenant Jackson did not reveal
any signs of the alleged damage. Ms. Freeman also wrote in her
written statement to the Jamestown Police Department that
Officer Ellis had damaged the lock to the outer door of her
house, but Lieutenant Jackson testified that there was no
evidence of that damage. Mr. Desnerck also testified that
Officer Ellis did not enter Ms. Freeman’s home and that he did
not damage her door. The contradictory testimony in this case is
sufficient to be considered “reasonably trustworthy information
. . . to warrant a person of reasonable caution in the belief
that the person to be arrested has committed or is committing a
crime.” Weyant, 101 F.3d at 852
Furthermore, a City Court Judge for the City of Jamestown
issued an arrest warrant for Ms. Freeman. This supports the
conclusion that Ms. Freeman’s arrest was reasonable.
“Ordinarily, an arrest or search pursuant to a warrant issued by
a neutral magistrate is presumed reasonable because such
warrants may issue only upon a showing of probable
cause.” Walczyk v. Rio, 496 F.3d 139, 155–56 (2d Cir. 2007). “A
plaintiff who argues that a warrant was issued on less than
probable cause faces a heavy burden.” Rivera v. United
States, 928 F.2d 592, 602 (2d Cir. 1991). Ms. Freeman has not
met that heavy burden here, as she has not demonstrated that the
13

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 14 of 19

information submitted to the City Court Judge who issued the
arrest warrant was faulty or incorrect. Thus, the Court
concludes that Sergeant Bender had probable cause to arrest Ms.
Freeman.
However, even if Ms. Freeman’s arrest were unreasonable,
the Court finds that Sergeant Bender would be entitled to
qualified immunity. The Court is not aware of any case law that
establishes that it would be unreasonable for an officer to
arrest a person for filing a false statement after investigating
and finding no evidence of Plaintiff’s allegations, hearing
conflicting testimony, and securing an arrest warrant based on
probable cause. Under qualified immunity the inquiry is not
“what a lawyer would learn or intuit from researching case law,
but what a reasonable person in a defendant’s position should
know about the constitutionality of the conduct.” Young v.
County of Fulton, 160 F.3d 899, 903 (2d Cir. 1998). The Court
cannot conclude that any reasonable officer in these
circumstances would conclude that arresting Ms. Freeman would be
a violation of her Fourth Amendment rights. Furthermore, given
the facts of this case, “a rational jury could not find that the
officer’[s] judgment was so flawed that no reasonable officer
would have made a similar choice.” Lennon v. Miller, 66 F.3d
416, 424-25 (2d Cir. 1995) (emphasis omitted). Therefore,
Sergeant Bender is entitled to qualified immunity.
14

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 15 of 19

For the forementioned reasons, the Court finds for Sergeant
Bender.
ii.

Lieutenant Jackson

For the reasons outlined above, the Court has found probable
cause for Ms. Freeman’s arrest. The existence of probable cause
also defeats Ms. Freeman’s unlawful arrest claim against
Lieutenant Jackson. Additionally, like Sergeant Bender,
Lieutenant Jackson is also entitled to qualified immunity on
this claim.
D. Fourth Amendment Malicious Prosecution Claim
To prove a malicious prosecution claim, a plaintiff must
demonstrate “(1) that the defendant initiated a prosecution
against the plaintiff, (2) that the defendant lacked probable
cause to believe the proceeding could succeed, (3) that the
defendant acted with malice, and (4) that the prosecution was
terminated in the plaintiff's favor.” Posr v. Court Officer
Shield # 207, 180 F.3d 409, 417 (2d Cir. 1999) (citing Ricciuti
v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997)).
Under § 1983, to prevail on a malicious prosecution claim, a
plaintiff must also show “a sufficient post-arraignment liberty
restraint to implicate the plaintiff’s Fourth Amendment rights.”
Rohman v. New York City Transit Authority (NYCTA), 215 F.3d 208,
216 (2d Cir. 2000); see also Singer v. Fulton County Sheriff, 63
F.3d 110, 116-117 (2d Cir. 1995) (“The Fourth Amendment right
15

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 16 of 19

implicated in a malicious prosecution action is the right to be
free of unreasonable seizure of the person

. . . . A plaintiff

asserting a . . . malicious prosecution claim under § 1983 must
therefore show some deprivation of liberty consistent with the
concept of ‘seizure.’”).
Ms. Freeman alleges malicious prosecution claims against
Sergeant Bender and Lieutenant Jackson.
i.

Sergeant Bender

Given that the Court finds that Sergeant Bender had probable
cause to arrest Ms. Freeman, her malicious prosecution claim
cannot survive. Probable cause for an arrest will end the
inquiry into malicious prosecution. See Smith-Hunter v. Harvey,
734 N.E.2d 750, 752 (N.Y. 2000) (internal quotation marks
omitted) (noting that a plaintiff claiming malicious prosecution
must demonstrate a lack of probable cause). Therefore, the Court
finds for Sergeant Bender on this claim.
ii.

Lieutenant Jackson

For the same reasons the Court finds for Sergeant Bender on
Ms. Freeman’s malicious prosecution claim, the Court also finds
for Lieutenant Jackson. Specifically, the existence of probable
cause also defeats Ms. Freeman’s malicious prosecution claim
against Lieutenant Jackson.
E. First Amendment Retaliation Claim

16

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 17 of 19

Ms. Freeman also claims that the Jamestown Police
Department retaliated against her. To prevail on a First
Amendment retaliation claim, a plaintiff must plausibly allege
that “(1) his [or her] speech or conduct was protected by the
First Amendment; (2) the defendant took an adverse action
against him [or her]; and (3) there was a causal connection
between this adverse action and the protected speech.” Montero
v. City of Yonkers, New York, 890 F.3d 386, 394 (2d Cir. 2018)
(citing Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d 267,
272 (2d Cir. 2011)). Retaliation claims based on false arrest
will be defeated if probable cause exists at the time of the
arrest. See Fabrikant v. French, 691 F.3d 193, 218 (2d Cir.
2012) (internal quotation marks omitted). (holding that
“[b]because probable cause existed . . . [plaintiff’s] First
Amendment retaliation claims must fail”). “An individual does
not have a right under the First Amendment to be free from
criminal prosecution supported by probable cause. . . .”
Mozzochi v. Borden, 959 F.2d 1174, 1180 (2d Cir. 1992). This is
true even when that prosecution “is in reality an unsuccessful
attempt to deter or silence criticism of the government.” Id.
Ms. Freeman alleges that both Sergeant Bender and
Lieutenant Jackson retaliated against her in violation of her
First Amendment rights. Specifically, Ms. Freeman alleges that
the refiling of criminal charges against her after she filed a
17

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 18 of 19

claim against the Jamestown Police Department constitutes
retaliation.
i.

Sergeant Bender

Retaliation claims based on false arrest will be defeated
if probable cause exists at the time of the arrest. See
Fabrikant, 691 F.3d at 218. Therefore, because the Court has
already found that probable cause existed for Ms. Freeman’s
arrest, her retaliation claim cannot survive. It is also worth
noting that Assistant District Attorney Bridget Kleinfelder sent
Sergeant Bender a memo on May 6, 2016, notifying him that he
could refile charges against Ms. Freeman. Given that the
memorandum encouraging the refiling of charges came from a
neutral body outside of the Jamestown Police Department, this
context further supports the Court’s conclusion that there is no
evidence of retaliation. The Court therefore finds for Sergeant
Bender on Ms. Freeman’s retaliation claim.
ii.

Lieutenant Jackson

For the same reasons the Court finds for Sergeant Bender on
Ms. Freeman’s retaliation claim, the Court also finds for
Lieutenant Jackson. Specifically, the existence of probable
cause also defeats Ms. Freeman’s retaliation claim against
Lieutenant Jackson.

18

Case 1:17-cv-00683-WKS Document 55 Filed 06/13/22 Page 19 of 19

F. Damages
Plaintiff has the burden of proving damages. For each claim
she must demonstrate that (1) she has or will have loss or harm
and (2) that loss or harm was caused by the legal fault of the
Defendant. Damages must be proven without speculation. Given
that Ms. Freeman has not prevailed on any of her claims, the
Court need not address damages. The Court notes, however, that
Plaintiff has not adequately proven compensatory damages.
Specifically, she has not demonstrated any actual,
documented loss from which the Court could calculate
compensatory damages.
III. Conclusion
For the foregoing reasons, the Court orders judgment in
favor of Defendants on all counts.
DATED at Burlington, Vermont, this 13th day of June, 2022.

/s/ William K. Sessions III
William K. Sessions III
U.S. District Court Judge

19