Shatney et al v. LaPorte et al

Filing 33

MEMORANDUM AND ORDER: Defendants' 20 , 22 , 24 Motions to Dismiss are granted such that Count III alleging "malfeasance" is dismissed as to all defendants, and all claims against Officers Dziobek, Glodgett, Gero and Blanchard are Dismissed. Plaintiffs voluntarily Dismiss all claims against Greensboro Selectboard member Marsha Gadoury. All claims against the remaining Greensboro Selectboard Defendants are Dismissed. Signed by District Judge J. Garvan Murtha on 7/18/2012. (wjf)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
RAY SHATNEY; JANET STEWARD;
GREENFIELD HIGHLAND BEEF, LLC;
SHAT ACRES HIGHLAND CATTLE, LLC;
SHATNEY TREE SERVICE, LLC;
individually and jointly as owners
of the above businesses,
and as separate business entities,

:
:
:
:
:
:
:
:
Plaintiffs,
:
:
v.
: File No. 1:12-cv-00023-jgm
:
JOSEPH LaPORTE, KEVIN BLANCHARD,
:
TANNER ATWOOD, WILLIAM FIELD,
:
JAMES DZIOBEK, MIKE GLODGETT,
:
MICHAEL GERO, Officers with the
:
Hardwick Police Department,
:
:
ANNE STEVENS, PETER GEBBIE,
:
JEFFERSON TOLMAN, PEGGY LIPSCOMB, :
MARSHA GADOURY, Members of the
:
Greensboro Selectboard,
:
:
CAROL PLANTE, Executive Director
:
of Hardwick-Greensboro Restorative :
Justice,
:
Defendants.
:
__________________________________ :
MEMORANDUM AND ORDER
ON DEFENDANTS= MOTIONS TO DISMISS
(Docs. 20, 22, 24)
Defendant Hardwick Police Officers Tanner Atwood, William
Field, James Dziobek, Mike Glodgett, Michael Gero, together with
Executive Director of Hardwick-Greensboro Restorative Justice Carol
Plante, move under Federal Rule of Civil Procedure 12(b)(6) to

dismiss various counts in Plaintiffs‟ Amended Complaint.
“Police Officers‟ Motion.”)

(Doc. 20,

The Greensboro Selectboard (“GSB”)

defendants separately move for dismissal under the same rule.
24).

(Doc.

Defendant Hardwick Police Officer Kevin Blanchard moves

separately to join in his co-defendants‟ motion to dismiss, and
alternatively, for a more definite statement under Federal Rule of
Civil Procedure 12(e).

(Doc. 22.)

Police Chief Joseph LaPorte has

answered the Amended Complaint and has not filed a motion to dismiss.
For the reasons that follow, the Motions to Dismiss are granted.
I.

DISCUSSION
The Amended Complaint (Doc. 5)1 details allegations by Ray

Shatney, his wife Janet Steward, and Greenfield Highland Beef, LLC,
Shat Acres Highland Cattle, LLC, and Shatney Tree Service, LLC, three
companies they jointly own, against the named Hardwick police
officers, Carol Plante, and members of the Greensboro Selectboard.
The Amended Complaint asserts ten counts, including negligence,
violation of Vermont‟s Open Meeting laws, “malfeasance,” malicious
prosecution, defamation, fraud, interference with business
relations, intentional infliction of emotional distress,
conspiracy, and finally, a claim alleging violation of Plaintiffs‟

1

The Selectboard defendants removed the case from Vermont
Superior Court on the basis of federal question jurisdiction.
2

rights to equal protection under both the U.S. Constitution and the
Constitution of the State of Vermont.2

(Doc. 5.)

The facts underlying these claims are detailed in the 45-page
Amended Complaint, and essentially describe long-standing
grievances between the Plaintiffs and various members of the Shatney
family, stemming from financial and family issues surrounding the
family‟s cattle business.

The Amended Complaint alleges that the

Hardwick Police Department, which contracts with Greensboro to
provide patrol services, and the Greensboro Selectboard failed to
respond appropriately to Plaintiffs= reports of numerous incidents
of harassment and vandalism.
Some of these incidents included reports Plaintiffs‟ family
members had allegedly stolen and forged checks; that a calf had been
shot and killed; theft of guns and other items from Plaintiffs‟ home;
reports that hundreds of nails, broken glass, and tires had been
thrown, in separate incidents, into the Plaintiffs‟ barnyard and
pasture; reports of mail theft; reports that family members blew car
horns while passing Plaintiffs‟ property to disturb the cattle;
vandalism of Plaintiffs‟ cabin; the mishandling of assault
allegations against Ray Shatney, for which the charges were
eventually dropped; and various other incidents.
2

See generally,

The federal constitutional claim against the state officials
is construed as being brought pursuant to 42 U.S.C. § 1983.
3

Amended Compl. (Doc. 5).

The essence of Plaintiffs‟ Amended

Complaint is that the Defendants failed to investigate their reports
and protect them.
A.

Standard on a Motion to Dismiss

To survive a Rule 12(b)(6) motion to dismiss, “a complaint must
contain sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.”

Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009) (internal quotations omitted).

The allegations

must “raise a right to relief above the speculative level on the
assumption that all of the complaint‟s allegations are true.”

Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007).
The Court must draw all reasonable inferences in plaintiff=s
favor on a motion to dismiss.

Bolt Elec., Inc. v. City of New York,

53 F.3d 465, 469 (2d Cir. 1995).

“But where the well-pleaded facts

do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged -- but it has not „show[n]‟-„that the pleader is entitled to relief.‟”

Iqbal, 556 U.S. at 679

(quoting Fed. R. Civ. P. 8(a)(2)).
B.

Police Officers‟ Motion
1.

Count III Alleging Malfeasance Is Dismissed

The Police Officers‟ Motion to Dismiss (Doc. 20) asserts Vermont
law does not recognize an independent tort of “malfeasance.”
Plaintiffs, in their brief, concede “the courts in the State of
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Vermont have neither defined nor directly addressed the tort of
malfeasance.”

Pls.‟ Resp. in Opp. to Mot. to Dismiss at 4 (Doc. 29).

This Court declines to recognize or create a novel tort under state
law, and therefore Count III of the Amended Complaint is dismissed.
2.

All Claims Against Officer Dziobek Are Dismissed

The Police Officers‟ Motion also asserts that all claims against
Defendant Officer Dziobek, except the claim of interference with
business relations, are time barred under Vermont‟s three-year
statute of limitations applicable to personal injury torts and civil
rights claims brought under 42 U.S.C. § 1983.

See Morse v. Univ.

of Vermont, 973 F.2d 122, 126-27 (2d Cir. 1992) (finding § 1983 claims
subject to Vermont‟s three-year limitations period).
Here, Dziobek stepped down as police chief January 7, 2008 and
thereafter served as sergeant only until November 11, 2008, when he
left the force.

Plaintiffs filed their original complaint in state

court on November 18, 2011, a week beyond the end of the applicable
three-year limitations period.

Although Plaintiffs argue their

allegations against Dziobek are timely because the limitations
period was tolled under the “discovery rule,” because they claim they
were unaware of their cause of action until after Dziobek‟s
departure, Defendants correctly counter that the Amended Complaint
alleges facts indicating Plaintiffs were on notice of a potential
claim before November 28, 2008.

See Amended Compl. ¶ 56 (alleging
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Dziobek apologized for the slow pace of investigation when Plaintiffs
complained to him about inaction in March 2007).
Accordingly, all claims against Dziobek other than interference
with business relations are dismissed as time-barred.
Defendants assert the remaining claim for interference with
business relations -- presumably based on Plaintiffs‟ business
losses following the publicity of Ray Shatney‟s arrest and
arraignment -- should be dismissed because the Amended Complaint
fails to allege Dziobek was personally involved in causing these
losses.

Shatney‟s arrest and February 2009 arraignment occurred

long after Dziobek stepped down as police chief in January 2008 and
left the department entirely on November 11, 2008, and the Amended
Complaint does not allege he played any part in events following his
departure.
Accordingly, the interference-with-business relations claim
against Officer Dziobek is dismissed for lack of personal
involvement.
3.

All Claims Against Defendants Glodgett and
Gero Are Dismissed

Finally, the Police Officers‟ Motion asserts the Amended
Complaint fails to allege Officers Glodgett and Gero were personally
involved in either the § 1983 claim or state law torts.

“It is well

settled in this Circuit that personal involvement of defendants in
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alleged constitutional deprivations is a prerequisite to an award
of damages under § 1983.”

Wright v. Smith, 21 F.3d 496, 501 (2d Cir.

1994) (internal quotation omitted).

A government official “is only

liable for his or her own misconduct.”

Iqbal, 556 U.S. 662, 677.

With respect to state law claims, a defendant cannot be subject to
vicarious liability for torts committed by another unless plaintiff
can show an employer-employee or principal-agent relationship with
the tortfeasor.

In re Desautels Real Estate, Inc., 142 Vt. 326, 337

(1982) (employer can be vicariously liable “for the acts of an
employee, or a principal for the torts and contracts of his agent”).
Here, the Amended Complaint mentions Officer Glodgett by name
only once, in paragraph nine, and merely states he was employed by
the Hardwick Police Department.

It fails to allege any tortious

conduct by Glodgett, or any basis for vicarious liability for harm
caused by others.
Defendant Officer Gero is also identified in paragraph nine as
a Hardwick Police Department employee.
more in the Amended Complaint.

He is mentioned only twice

The mention in paragraph 60 alleges

Officer Gero was threatened by Leo Shatney (Plaintiff Shatney‟s
brother) on April 13, 2008, but fails to allege Gero himself committed
any wrong.

Paragraph 206 states that on October 17, 2011, Gero

accompanied Defendant Atwood to Plaintiff Shatney‟s farm in response
to Shatney‟s complaint that his fences had been broken.
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According

to paragraph 206, Gero was merely present when Defendant Atwood
suggested Plaintiff Shatney install a camera to see who was driving
through his fence.

Paragraph 206‟s allegations also fail to assert

Gero was personally involved in, or vicariously liable for,
wrongdoing.

Accordingly, all claims against Defendants Glodgett

and Gero are dismissed.
C.

All Claims Against Officer Blanchard Are Dismissed

Officer Blanchard moves separately under Rule 12(b)(6) to
dismiss for failure to state a cause of action against him, and
alternatively for a more definite statement under Rule 12(e).
22.)

(Doc.

He also joins his co-defendants= motion to dismiss.
Officer Blanchard argues he is mentioned in only three

paragraphs of the Amended Complaint: first, he is described as
angrily shouting into the phone to tell Ray to call Blanchard‟s
supervisor and slamming down the phone (¶ 62); second, he is alleged
to have been “present and standing at attention” when Plaintiffs met
one day with Chief Laporte, at which time Blanchard is merely said
to have “clarified relevant facts,” (¶ 66); and finally, Blanchard
allegedly called Janet to scream at her regarding her claim the HPD
lost “no trespass” orders, although he confirmed HPD lost an original
order, slamming down the phone (¶ 104).

None of these factual

allegations state a claim under any count, and therefore the Amended
Complaint does not state a cognizable claim against Officer
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Blanchard.

Accordingly, all claims against Officer Blanchard are

dismissed.
D.

All Claims Against Greensboro Selectboard Are Dismissed

Defendant current or former members of the Greensboro
Selectboard also move to dismiss the claims against them.

(Doc. 24.)

The Selectboard Defendants argue the Amended Complaint fails to
allege their personal involvement in all the state law claims other
than the Vermont Open Meeting Law claim.
Plaintiffs voluntarily dismiss all claims against Defendant
Marsha Gadoury because Gadoury joined the Selectboard in March 2010,
and therefore she was not involved in any of the events underlying
Plaintiffs‟ complaints.

Regarding the other Selectboard

Defendants, Plaintiffs counter that the Amended Complaint
sufficiently alleges wrongdoing apart from the Open Meeting Law
claim, described in ¶¶ 189-197, because other paragraphs allege a
lack of responsiveness to Plaintiffs‟ calls.

See Pls.‟ Resp. in Opp.

to Mot. to Dismiss at 22 (Doc. 29-1) (listing allegations in other
paragraphs).

The Court notes these other paragraphs describe

Plaintiffs‟ contacts and attempts to contact and meet with GSB
members, but are devoid of any facts supporting claims of negligence,
interference with business relations, or intentional infliction of
emotional distress against Selectboard Defendants.

These other

state law claims against Selectboard Defendants are dismissed.
9

While GSB Defendants concede paragraphs 189-197 of the Amended
Complaint allege their personal involvement in violating the Open
Meeting Law, they argue the Open Meeting Law claim should be dismissed
because Plaintiffs fail to seek any relief available under that law
-- equitable injunctive relief or declaratory judgment -- and appear
to seek only money damages.

Even if money damages were available

under the Open Meeting Law, GSB Defendants argue this claim fails
for lack of specificity, and for failure to plead any injury to
Plaintiffs.
Indeed, while title 1, section 314(b) of the Vermont Statutes
Annotated provides for injunctive relief or declaratory judgment for
violations of the Open Meeting Law, it provides no private remedy
for damages.

Vt. Stat. Ann. tit. 1, § 314(b); Rowe v. Brown, 157

Vt. 373, 378 (1991) (finding “no indication” in Open Meeting Law “of
legislative intent, explicit or implicit, to create a private tort
remedy).

Here, Plaintiffs‟ Amended Complaint merely states

Plaintiffs “were harmed by defendant GSB‟s conduct,” (Doc. 5 at ¶
242) and appears to seek money damages (id. at pp. 44-45) rather than
equitable relief.

Because the Open Meeting law creates no private

right of action for damages, this claim is dismissed.
Finally, with respect to the § 1983 claim, Selectboard
Defendants argue the Complaint fails to allege Selectboard members
were personally involved in any federal constitutional violation.
10

The alleged violations of Vermont‟s Open Meeting Law, even if they
were sufficient, cannot support liability under § 1983.

See Felder

v. Casey, 487 U.S. 131, 139 (1988) (Section 1983 “does not create
a remedy for the violation of purely state-created rights”).
Because the Amended Complaint fails to allege any federal
constitutional violation by the Selectboard Defendants, the § 1983
claim against them is also dismissed.
II.

CONCLUSION
Therefore, the Defendants‟ Motions to Dismiss (Docs. 20, 22,

24) are granted such that Count III alleging “malfeasance” is
dismissed as to all defendants, and all claims against Officers
Dziobek, Glodgett, Gero and Blanchard are dismissed.

Plaintiffs

voluntarily dismiss all claims against Greensboro Selectboard member
Marsha Gadoury.

All claims against the remaining Greensboro

Selectboard Defendants are dismissed.
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 18th day
of July, 2012.

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

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