Bourn v. Gauthier et al

Filing 50

OPINION AND ORDER: Denying 44 Motion to Appoint Counsel without prejudice. Granting in part and denying in part 46 Motion to Dismiss. The proposed schedule shall be filed by 7/27/2012. Signed by District Judge J. Garvan Murtha on 6/25/2012. (wjf)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Paul Bourn,

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Plaintiff,
v.
Town of Bennington,
Officer Bull,
Trooper Zink,
Defendants.

Case No. 1:09-cv-212-jgm

OPINION AND ORDER
(Docs. 44 and 46)
Pro se plaintiff Paul Bourn brings this action claiming
that he suffered serious injuries when he crashed his
motorcycle into a police roadblock at a speed of
approximately 100 miles per hour.

Pending before the Court

are Bourn’s motion for appointment of counsel and Defendants’
motion to dismiss.

Defendants argue that the Amended

Complaint fails to state a claim for relief against the Town
of Bennington, and that the claims against Officer Bull and
Trooper Zink are untimely.
For the reasons set forth below, the motion for
appointment of counsel (Doc. 44) is DENIED, and the motion to
dismiss (Doc. 46) is GRANTED in part and DENIED in part.

Factual Background 1
On the night of September 17, 2007, Bourn rode his
motorcycle to a gas station in Bennington, Vermont.

After

putting gas in the motorcycle, he allegedly discovered he was
not carrying any money and drove away without paying.
Bennington Police Officer David Faden received a report of
the incident, saw Bourn, and stopped his police car to speak
with him.

Bourn testified in his deposition that when he saw

Officer Faden, he “panicked” and drove off toward his home.
(Doc. 32-3 at 18-19.)

Officer Faden followed, but did not

immediately activate his blue lights.
When Bourn arrived at his home, he parked his motorcycle
behind the building.

He then walked toward the front,

ostensibly to retrieve his wallet, whereupon Officer Faden
pointed a spotlight towards him.

Bourn again fled, returned

to his motorcycle and drove away at a speed that approached
100 miles per hour.

Officer Faden pursued with his blue

lights and siren now on.

1

Although some of this factual background is derived
from materials that are beyond the pleadings, Defendants’
motion to dismiss will be considered only in light of the
facts alleged in Bourn’s Amended Complaint. See Goldberg v.
Danaher, 599 F.3d 181, 183-84 (2d Cir. 2010) (holding that
when reviewing sufficiency of a complaint under Fed. R. Civ.
P. 12(b)(6), court is limited to facts “contained within the
four corners of the complaint”).
2

As he was fleeing Officer Faden in a northbound
direction, Bourn noted two southbound police cruisers coming
towards him.

He testified at his deposition that “[t]hey

were both coming at me in both lanes . . . .
go . . . .
killed me.”

I had no choice but to stop.
Id. at 31.

I had no way to

They would have

Bourn claims that the drivers of the

two cruisers disobeyed Officer Faden’s order to discontinue
pursuit, and “malicously creat[ed] obstacles to travel.”
(Doc. 39 at 1.)

Bourn applied his brakes, the brakes locked,

and the motorcycle began to skid on its side.

Bourn became

separated from the motorcycle, and he allegedly hit his head
on what he believes to have been the bumper of one of the
southbound cruisers.
Bourn subsequently pled guilty to petit larceny for
stealing the gasoline, attempting to elude a police officer,
and negligent operation of a motor vehicle.

In his Amended

Complaint, he claims to have suffered head trauma and
abrasions as a result of the crash.

He also complains of

continued headaches, nightmares and flashbacks.

For relief,

Bourn is seeking “real damages” of $250,000 from each
Defendant, and $100 million in punitive damages from the Town
of Bennington.

(Doc. 39.)

3

Procedural Background
Bourn filed his Complaint on September 14, 2009,
approximately two years after his accident.

Defendants in

the original Complaint included: Richard Gauthier; Officer
Dean; Officer Stemp; Officer Faden; and the Bennington Police
Department.

Defendants filed an Answer on November 16, 2009.

After the parties commenced discovery, Bourn moved to
amend his Complaint to add Officers Thomas Bull (Doc. 22) and
Robert Zink (Doc. 26) as Defendants, claiming that these were
the officers who drove the southbound cruisers during the
September 2007 pursuit.

The motions to amend were filed on

January 6, 2010, and February 8, 2010, respectively.
In an Opinion and Order dated May 3, 2010, the Court
denied the motions to amend, concluding that they did not
comply with the Court’s Local Rules for amended pleadings.
(Doc. 29 at 7-8).

The Court denied the motion without

prejudice, noting that a proper motion to amend would still
be considered.

The Court further stated that if leave to

amend “is granted, the Court will order that the amended
complaint be docketed, and the newly-added defendants will be
served in accordance with the Court’s prior ruling on Bourn’s
motion to proceed in forma pauperis.”

4

Id.

The Court issued its next substantive Order on March 29,
2011, granting summary judgment in favor of all Defendants.
As of that date, Bourn had not yet filed a second motion to
amend to add Officers Bull and Zink.

Nonetheless, the Court

stated in its Opinion and Order that “[g]iven the alleged
roles of Officers Bull and Zink . . . justice requires
granting Bourn one more opportunity to amend his Complaint.”
Id. at 15.

The Court thus allowed Bourn 30 days in which to

file an Amended Complaint.
On April 7, 2011, Bourn filed two separate motions to add
Thomas Bull and Robert Zink as a parties.

(Docs. 35 and 36.)

On April 26, 2011, he filed another motion to amend, together
with a proposed Amended Complaint naming Officer Bull and
Zink as Defendants.

(Doc. 37).

The Court subsequently

granted the motions to amend, and the Amended Complaint has
been docketed.
Defendants now argue that the claims against Defendants
Bull and Zink are untimely because the statute of limitations
expired in September 2010, several months before Bourn’s most
recent motions to amend.

Defendants further contend that the

Amended Complaint fails to state a claim of municipal
liability against the Town of Bennington.

Also before the

Court is Bourn’s motion for appointment of counsel.
5

Discussion
I.

Motion to Dismiss
A.

Legal Standard

Defendants bring their motion to dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6).

In deciding a

motion to dismiss under Rule 12(b)(6), the Court must accept
all allegations in Bourn’s Amended Complaint as true and draw
all reasonable inferences in his favor.

See Grandon v.

Merrill Lynch & Co., Inc., 147 F.3d 184, 188 (2d Cir. 1998).
Furthermore, a complaint filed by a pro se plaintiff must be
construed liberally and interpreted to raise the strongest
arguments it suggests.

See Graham v. Henderson, 89 F.3d 75,

79 (2d Cir. 1996) (internal citation omitted).

The factual

allegations set forth in the Amended Complaint, however,
“must be enough to raise a right to relief above the
speculative level.”
544, 555 (2007).

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

The Amended Complaint must plead sufficient

facts to state a claim that is plausible, and “a formulaic
recitation of the elements of a cause of action will not do.”
Id.

A pleading satisfies the plausibility standard “when the

plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable

6

for the misconduct alleged.”

Ashcroft v. Iqbal, 554 U.S.

662, 678 (2009).
B.

Municipal Liability

Defendants first argue that Bourn has failed to state a
claim of municipal liability against the Town of Bennington
(“Town”).

The Amended Complaint alleges that Officers Bull

and Zink “acted on behalf of the town of Bennington under
color of law, and performed unnecessary, dangerous and
unauthorized roadblocks . . . .”

(Doc. 39 at 3.)

The

Amended Complaint also asserts that “[i]f a municipal
government such as Bennington, Vermont ‘puts a man at risk of
harm from private citizens, and then fails to protect, it
cannot be heard their role was merely passive; it is as much
an active role as if they had thrown him into a snake pit.’”
(Doc. 39 at 4.) 2
Bourn’s first allegation, that Officers Bull and Zink
acted on behalf of the Town, appears to assert a claim of
vicarious liability.

The claims against the officers

themselves allege constitutional violations, and are brought
2

Bourn’s “snake pit” quotation, though un-cited and
not repeated precisely, is most likely based upon Bowers v.
DeVito, 686 F.2d 616, 618 (7th Cir. 1982) (“If the state
puts a man in a position of danger from private persons and
then fails to protect him, it will not be heard to say that
its role was merely passive; it is as much an active
tortfeasor as if it had thrown him into a snake pit.”).
7

under 42 U.S.C. § 1983.

It is well established that “[a]

municipality may only be found liable under 42 U.S.C. § 1983
when the alleged unlawful action was implemented or executed
pursuant to a government policy or custom.

A municipality

may not be held liable under section 1983 on a theory of
vicarious liability.”

Marte v. N.Y. City Police Dep’t, 2010

WL 4176696, at *2 (S.D.N.Y. Oct. 12, 2010) (citing Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)).
Furthermore, a plaintiff must establish “a direct causal link
between a municipal policy or custom and the alleged
constitutional deprivation.”

City of Canton v. Harris, 489

U.S. 378, 385 (1989).
Bourn’s allegations, that Bull and Zink acted “on behalf
of the town,” offers no suggestion of a policy or custom, or
of any link to municipal decision-making.

(Doc. 39 at 4.)

Instead, it merely alleges that the police acted as municipal
employees at the time of the alleged roadblock.

Because

there is no vicarious liability under § 1983, this claim is
insufficient.
Construing the Complaint liberally, Bourn may also be
claiming that the Town failed to properly train or supervise
its officers.

Such claims may be alleged under § 1983, but

in doing so, Bourn must demonstrate that the Town’s failures
8

constituted “deliberate indifference” to its citizens’
constitutional rights.

Walker v. City of New York, 974 F.2d

293, 297 (2d Cir. 1992) (citing City of Canton v. Harris, 489
U.S. 378, 389-90 (1989)).

If Bourn is claiming that the

police department failed to implement certain policies or
customs regarding high-speed chases, the deliberate
indifference standard again applies, and liability may be
established “where the need to act is so obvious, and the
inadequacy of current practices so likely to result in a
deprivation of federal rights, that the municipality or
official can be found deliberately indifferent to the need.”
See Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007)
(citing City of Canton v. Harris, 489 U.S. 378, 390 (1989)).
Furthermore, and to the extent that Bourn is claiming
either that the Town failed to supervise or failed to put
proper policies in place, he must allege “‘a specific
deficiency . . . such that it actually caused the
constitutional deprivation.’”

Jenkins v. City of New York,

478 F.3d 76, 94 (2d Cir. 2007) (quoting Green v. City of New
York, 465 F.3d 65, 81 (2d Cir. 2006)).

Conclusory

allegations are insufficient to state a claim under civil
rights statutes, Barr v. Abrams, 810 F.2d 358, 363 (2d Cir.
1987), and a plaintiff cannot establish municipal liability
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solely by inference from evidence of the occurrence of the
incident in question.

Fiacco v. City of Rensselaer, 783 F.2d

319, 328 (2d Cir. 1986, cert. denied, 480 U.S. 922 (1987).
These standards were explained to Bourn previously (Doc.
29 at 3-6), and yet he still does not allege a specific
deficiency in either the Town’s training or its policies
resulted in his injuries.

In fact, the Amended Complaint

states that Officers Bull and Zink disobeyed an order to
discontinue pursuit, and instead acted on their own accord in
establishing a blockade.

(Doc. 39 at 3.)

Accordingly, the

Complaint does not assert a plausible claim of municipal
liability on the basis of a specific deficiency in either
supervision or training.

While the Court acknowledges that

there is no heightened pleading standard for municipal
liability claims, see Leatherman v. Tarrant Cnty. Narcotics
Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993),
Bourn’s single-sentence allegation that Bull and Zink acted
“on behalf of” the Town falls short of stating a plausible
claim of municipal liability.
Bourn’s second claim, that the Town effectively “thr[ew]
him into a snake pit,” may be construed as a claim of state
created danger.

See, e.g., Pena v. Deprisco, 432 F.3d 98,

109 (2d Cir. 2005).

However, the facts of this case do not
10

lend themselves to such a claim, as the state created danger
doctrine involves “conduct by the state that puts a person in
danger of harm from a private actor.”

Elliot v. City of New

York, 2008 WL 4178187, at *11 (S.D.N.Y. Sept. 8, 2008)
(emphasis supplied) (citing Pena, 432 F.3d at 108).
Bull and Zink were not private actors.

Officers

Moreover, there is no

indication in the Amended Complaint that the Town encouraged
these officers to act at they did.

In fact, the allegations

suggest that the officers disobeyed their orders.

Bourn’s

“snake pit” claim thus lacks any factual underpinning.

The

motion to dismiss the Town of Bennington is therefore
GRANTED, and the claims against the Town are DISMISSED
without prejudice.
C.

Statute of Limitations

Defendants next argue that Bourn’s allegations against
Officers Bull and Zink are barred by the relevant statute of
limitations.

For cases filed in the District of Vermont, the

limitations period applicable to Section 1983 actions is
three years.

See Owens v. Okure, 488 U.S. 235, 249–51 (1989)

(holding that the most appropriate statute of limitations in
a § 1983 action is found in the “general or residual [state]
statute [of limitations] for personal injury actions”); 12
V.S.A. § 512(4) (establishing three-year limitations period
11

for personal injury actions); see also Morse v. Univ. of
Vermont, 973 F.2d 122, 126 (2d Cir. 1992).

The events

alleged in this case occurred on September 17, 2007.
Consequently, the limitations period expired in September
2010.
Bourn filed this case in 2009.

In early 2010, he moved

to amend to add Officers Bull and Zink as parties.

In May

2010, the Court denied to the motions because they did not
comply with the Local Rules, while allowing that a proper
motion to amend could still be filed.

In March 2011, the

Court dismissed all Defendants, but again allowed Bourn leave
to file a motion to amend to add Officers Bull and Zink.
Bourn filed his motions to amend in April 2011, the motions
were granted, and the Amended Complaint was docketed in
October 2011.
Defendants contend that the March 2011 motions to amend
were untimely, as the statute of limitations had expired in
September 2010.

If “a complaint is amended to include an

additional defendant after the statute of limitations has
run, the amended complaint is not time barred if it ‘relates
back’ to a timely filed complaint.”

VKK Corp. v. Nat’l

Football League, 244 F.3d 114, 128 (2d Cir. 2001).

Pursuant

to Rule 15(c), “[a]n amendment to a pleading relates back to
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the date of the original pleading” when three conditions are
met: (1) the new claims “arose out of the conduct,
transaction, or occurrence” set forth in the original
pleading, and (2) “within the period provided for by Rule
4(m) for serving the summons and complaint,” the new party
“received such notice of the action that it will not be
prejudiced in defending on the merits,” and (3) during the
Rule 4(m) service period the new party “knew or should have
known that the action would have been brought against it, but
for a mistake concerning the proper party’s identity.”
R. Civ. P. 15(c)(1)(C).

Fed.

The Rule 4(m) service period is 120

days after the complaint is filed.

Fed. R. Civ. P. 4(m).

In this case, there is no dispute that the claims against
Officers Bull and Zink arose out of, and in fact consisted
of, the same conduct alleged in Bourn’s initial Complaint.
The analysis therefore turns to the question of timely
notice, as well as the question of whether the failure to
name Officers Bull and Zink was the sort of “mistake”
contemplated under Rule 15(c)(1)(C).
The United States Supreme Court has made clear that
“[t]he linchpin [of Rule 15(c)] is notice, and notice within
the limitations period.”
31 (1986).

Schiavone v. Fortune, 477 U.S. 21,

“While actual notice is preferable, ‘constructive
13

notice’ may suffice in some instances.”

Smith v. Westchester

Cnty. Dep’t of Corr., 2012 WL 527222, at *4 (S.D.N.Y. Feb.
15, 2012).

“Under the constructive notice doctrine, the

court can impute knowledge of a lawsuit to a new defendant
government official through his attorney, when the attorney
also represented the officials originally sued, so long as
there is some showing that the attorney knew that the
additional defendants would be added to the existing suit.”
Berry v. Vill. of Millbrook, 2010 WL 3932289, at *5 n.6
(S.D.N.Y. Sept. 29, 2010) (quoting Muhammad v. Pico, 2003 WL
21792158, at *20 (S.D.N.Y. Aug. 5, 2003)) (internal quotation
marks and alteration omitted); see also Velez v. Fogarty,
2008 WL 5062601, at *5 (S.D.N.Y. Nov. 20, 2008); Smith, 2012
WL 527222, at *5 (“In deciding whether the shared attorney
has the requisite knowledge, the appropriate inquiry is
whether that attorney knew or should have known that the
prospective defendants would be named.”).
Defendants have not argued lack of notice, either actual
or constructive.

The Court nonetheless notes that Bourn

filed his Complaint in September 2009, and filed his motion
to add Officer Bull within 120 days thereafter.

The motion

to amend to add Officer Zink was filed just beyond the 120day window.

There is no dispute that all Defendants,
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including Officers Bull and Zink, have been represented by
the same attorney.

Accordingly, the Court may apply the

constructive notice doctrine in this case, and conclude that
counsel either knew or should have known that both Bull and
Zink would be added to the case.
Moreover, it is undisputed that the initial motions to
amend were filed prior to the expiration of the limitations
period.

“[I]n the majority of cases in this Circuit applying

the constructive notice doctrine, the attorneys have clear
knowledge of the identity of the unidentified defendant,
within the limitations period, such that it would be logical
to assume that a reasonable attorney would either (1) inform
his client of the prospective lawsuit or (2) take steps to
begin preparing a defense.”

Velez, 2008 WL 5062601, at *6.

Because Bourn first moved to add Officers Bell and Zink
several months before the limitations period expired, it is
“logical to assume” that counsel for Defendants notified both
individuals of their prospective addition to the case, or at
least took steps to begin preparing their defense.

Id.; see

also Moslev v. Jablonsky, 209 F.R.D. 48, 53 (E.D.N.Y. 2002)
(complaint technically only named the city and the
supervising officer as defendants but the body of the
complaint identified the un-named officers accused of
15

mistreating plaintiff and, therefore, corporation counsel
knew or should have known that these officers would be added
as defendants).
Defendants argue that by naming the wrong police
officers, Bourn’s error was not the sort of “mistake”
contemplated by Rule 15(c).

Indeed, the Second Circuit has

held that a “mistake” under Rule 15(c) must be “an error,
such as a misnomer or misidentification,” and that when “new
names were added not to correct a mistake but to correct a
lack of knowledge, the requirements of Rule 15(c) for
relation back are not met.”

Barrow v. Wethersfield Police

Dep’t, 66 F.3d 466, 470 (2d Cir. 1995).

However, the United

States Supreme Court recently clarified that the key inquiry
under Rule 15(c)(1)(C) is “whether [the defendant to be
added] knew or should have known that it would have been
named as a defendant but for an error.”

Krupski v. Costa

Crociere S.p.A., 130 S. Ct. 2485, 2493 (2010).
In Krupski, the Supreme Court emphasized that the purpose
of the relation back doctrine is “to balance the interests of
the defendant protected by the statute of limitations with
the preference . . . for resolving disputes on their merits.”
Id. at 2494.

The Court further stated:

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a prospective defendant who legitimately believed
that the limitations period had passed without any
attempt to sue him has a strong interest in repose.
But repose would be a windfall for a prospective
defendant who understood, or who should have
understood, that he escaped suit during the
limitations period only because the plaintiff
misunderstood a crucial fact about his identity.
Id.

The Supreme Court also allowed district courts to

consider the extent to which “plaintiff’s postfiling conduct
informs prospective defendant’s understanding of whether
plaintiff initially made a mistake . . . .”

Id. at 2496-97

(internal quotation omitted).
Here, it is plain that both Defendants Bull and Zink knew
or should have known that they were going to be named as
parties, and that they obtained this knowledge prior to the
expiration of the limitations period.

Furthermore, to the

extent there was a “mistake” that allowed the limitations
period to expire, that mistake was not a failure to name
proper parties, but instead a failure to comply with the
requirements of the Local Rules with respect to amended
pleadings.

Accordingly, the Barrow decision does not govern

this case, and Bourn’s ultimately-successful motions to
amend, although filed after the limitations period had
expired, related back to his original Complaint.

17

The Court further finds that because counsel had timely
notice that Officers Bull and Zink would be added to the
case, any delay in filing and docketing the Amended Complaint
did not prejudice those Defendants.
at 128-29.

See VKK Corp., 244 F.3d

Defendants’ motion to dismiss the claims against

Officers Bull and Zink as untimely is therefore DENIED.
II.

Motion for Appointment of Counsel
Bourn has filed a motion for appointment of counsel.

This is his third such motion.

(Doc. 44.)

Bourn states that

he “has a meritorious claim,” that he does not have the
resources to retain private counsel, and that his requests
for pro bono counsel have gone unanswered.

Id.

Litigants in civil cases have no constitutional right to
counsel.

See In re Martin-Trigona, 737 F.2d 1254, 1260 (2d

Cir. 1984).

Moreover, while a court may “request an attorney

to represent any person unable to afford counsel,” 28 U.S.C.
§ 1915(e)(1), it cannot compel an attorney to accept a civil
case pro bono.

Mallard v. U.S. Dist. Court for the S. Dist.

of Iowa, 490 U.S. 296, 301-02 (1989).
The decision as to whether or not to assign counsel lies
within the Court’s discretion.
F.2d at 1260.

In re Martin-Trigona, 737

Assuming that the movant has shown that he is

sufficiently indigent, the factors to be considered by the
18

Court include the following: (1) whether the indigent’s
claims seem likely to be of substance; (2) whether the
indigent is able to investigate the crucial facts concerning
his claim; (3) whether conflicting evidence implicating the
need for cross-examination will be the major proof presented
to the fact finder; (4) whether the legal issues involved are
complex; and (5) whether there are any special reasons why
appointment of counsel would be more likely to lead to a just
determination.

Hendricks v. Coughlin, 114 F.3d 390, 392 (2d

Cir. 1997) (citing Hodge v. Police Officers, 802 F.2d 58, 6162 (2d Cir. 1986)); see also Carmona v. United States Bureau
of Prisons, 243 F.3d 629, 632 (2d Cir. 2001).
At this stage in the case, it is difficult to discern
whether Bourn’s claims are likely to be of substance.

In

Scott v. Harris, 550 U.S. 372 (2007), a police officer
engaged in a high-speed chase after observing the plaintiff
speeding.

The officer intentionally rammed plaintiff’s car

with his bumper, causing the plaintiff’s car to crash and
plaintiff to suffer severe injuries.

The plaintiff

subsequently sued the officer alleging the officer used
excessive force to arrest him in violation of the Fourth
Amendment.

The Supreme Court concluded that the officer did

not use excessive force under the circumstances, because he
19

was reasonably stopping an actual and imminent threat to the
lives of any nearby pedestrians, motorists, and officers.
Scott, 550 U.S. at 383.

Whether Scott controls the facts of

this case has not yet been determined, although the Supreme
Court’s holding certainly casts some doubt on the viability
of Bourn’s claims.
Assuming, for the sake of argument, that the case has
sufficient merit to warrant further analysis, it is difficult
to determine whether Bourn will be able to investigate the
crucial facts.

To the extent that those facts involve the

police, the necessary evidence should be available through
discovery, and there is no reason to believe at this time
that Bourn will be unable to engage in the discovery process.
There is no evidence of a need for cross-examination, as
nothing has been presented to indicate disputes of fact with
respect to Officers Bull and Zink.

The legal issues are of

questionable complexity, and the Court sees no reason at this
time why the appointment of counsel would be more likely to
lead to a just determination.

Bourn’s motion for appointment

of counsel (Doc. 44) is therefore DENIED without prejudice.
Conclusion
For the reasons set forth above, Defendants’ motion to
dismiss the claims being brought against the Town of
20

Bennington (Doc. 46) is GRANTED, and those claims are
DISMISSED without prejudice.

Defendants’ motion to dismiss

the claims against Officers Bull and Zink (Doc. 46) is
DENIED.

Bourn’s motion for appointment of counsel (Doc. 46)

is DENIED without prejudice.
The parties shall confer and jointly prepare and file a
discovery schedule providing for the completion of discovery
by February 25, 2013.

The proposed schedule shall be filed

by July 27, 2012 and comply with Rule 26(a)(4) of the Local
Rules of Procedure.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this
25 th day of June, 2012.

/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge

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