Buckner v. Shumlin et al

Filing 44

ORDER: Pltf's 5 Motion to Expedite and 6 Motion to Subpoena are DENIED. Dft's 12 , 15 , 36 , and 42 Motions to Dismiss are GRANTED. Pltf's 37 Motion to Amend Complaint is GRANTED to the extent that all Defendants, with the ex ception of Defendants Kalfus, Cutting, and Rieseberg, may be named andserved in their individual capacities, and Buckner may amend his claims against Defendants Marsh and Soares. The motion to amend is otherwise DENIED. All claims against Defendants Kalfus, Cutting, and Rieseberg are DISMISSED.Plaintiff shall file an amended complaint, consistent with this Opinion and Order, on or before April 5, 2013. Signed by District Judge J. Garvan Murtha on 3/5/2013. (kak)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

Sean Buckner,
Plaintiff,
v.
Peter Shumlin, William
Sorrell, Keith W. Flynn,
Robert D. Ide, Howard A.
Kalfus, Robert Appel,
Joseph Bahr, Nelson
Campbell, Paul Erlbaum,
Tom Marsh, Chief Steven
Soares, Erik McNeice,
William Jenkins, James
Beraldi, Linda Shedd,
Richard Slusser, John
Zonay, Glenn Cutting,
Hunter Reiseberg,
Defendants.

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File No. 1:12-cv-90-jgm

OPINION AND ORDER
(Docs. 5, 6, 12, 15, 36, 37, 42)
Plaintiff Sean Buckner, proceeding pro se, brings this
action claiming he has been the victim of racial profiling,
and that public officials have conspired to violate his
rights.

Pending before the Court are Defendants’ motions to

dismiss, as well as Buckner’s motion to expedite trial, motion
for a subpoena, and motion to amend his Complaint.

For the

reasons set forth below, the motions to dismiss are GRANTED,
Buckner’s motion to amend his Complaint is GRANTED in part and
DENIED in part, and his remaining motions are DENIED.

Factual Background
For purposes of the pending motions, the facts alleged in
the Complaint will be accepted as true.

On May 17, 2011,

Buckner stopped his vehicle on the shoulder of Interstate 91
due to “an emergency condition.”

(Doc. 4 at 8.)

Vermont

State Trooper Erik McNiece subsequently pulled up behind
Buckner’s vehicle and performed a routine license plate check
before exiting his cruiser.

Trooper McNiece then requested

Buckner’s license, registration, and insurance information.
He also asked for identification from both Buckner and his
passenger, and inquired as to who owned the car.
Buckner is a black male.
female.

His passenger was a white

The vehicle had North Carolina license plates.

When Trooper McNiece asked for identification, Buckner
informed him that he felt uncomfortable, and requested that
another officer be present.

Trooper McNiece reportedly told

Buckner his behavior (visibly nervous, smoking a freshly-lit
cigarette, asking for another officer to be present) was
suspicious.

Trooper McNiece ultimately returned the

occupants’ identification papers and “released” them.

Id. at

4.
Buckner was unable to start his car due to a low battery,
and a tow truck was called.

Trooper McNiece subsequently

contacted Windsor Police Sergeant James Beraldi to ask if

2

Sergeant Beraldi had any information about Buckner.

Sergeant

Beraldi responded that he knew of Buckner, and allegedly
described him as “a crackhead.”

Id. at 9.

Based upon this

information, Trooper McNiece ordered an exterior dog sniff of
the vehicle.
Trooper Richard Slusser arrived with a dog and a sniff
was conducted.

The dog did not indicate the presence of

contraband in the vehicle.

Trooper McNiece ultimately issued

Buckner a written warning for lack of proof of insurance.
State Police Lieutenant William Jenkins later reviewed
the “tape” of Buckner’s interactions with Trooper McNiece, and
found no wrongdoing by McNiece.

Id. at 10.

Lieutenant

Jenkins also informed Buckner he must send in his proof of
insurance, and that failure to do so would result in a ticket.
Buckner allegedly “told Lieutenant William Jenkins that I
would not send in proof of insurance and to send me the ticket
because I will use that to take them to court.”

Id.

Buckner

reports he never received the ticket.
Buckner later filed a complaint with the Vermont Human
Rights Commission (“VHRC”).

VHRC investigator Nelson Campbell

interviewed both Buckner and Sergeant Beraldi.

Sergeant

Beraldi allegedly told Campbell that he did not have any
reason to suspect Buckner of being “a crackhead,” and

3

according to the Complaint, the Town of Windsor now denies
Sergeant Beraldi ever made such a characterization.
The VHRC ruled against Buckner in a 3-0 vote.

Id.
Buckner

alleges that prior to the vote, he requested a recording of
his interview with Campbell, as well as notes from Campbell’s
interview of Sergeant Beraldi.

He claims the interview

recording was not produced because, according to the VHRC, it
was “‘either erased or damaged’” when moved from one computer
to another.

Id. at 11.

Other state officials, including Vermont Department of
Public Safety Commissioner Keith W. Flynn, Vermont Department
of Motor Vehicles Commissioner Robert Ide, and Special
Assistant Attorney General Howard A. Kalfus have allegedly
declined to find that Buckner was “treated like a criminal.”
Id.

Buckner claims these findings are evidence of “systemic

oppression within the state government,” and that he lives in
“a state of apartheid in the State of Vermont.”

(Doc. 37-1 at

8.)
Buckner further claims that according to an “unconfirmed
rumor,” the Windsor Police Department was conspiring with the
Vermont State Police a few months prior to the May 2011
incident “to for lack of better words ‘get me.’”

Id.

Buckner

reported this rumor to Windsor Town Manager Steven Cottrell
and Windsor Police Chief Steven Soares who, together with

4

Sergeant Beraldi, allegedly “escorted [Buckner] out as if the
complaint was frivolous.”

Id. at 12.

Buckner next alleges that he was “physically assaulted by
the Town of Windsor on November 10, 2010,” and that he was
“coerced to do a body search by the Town of Windsor on
November 10, 2010.”

Id.

It is not clear whether this

allegation is related to Buckner’s other claims, or whether it
constitutes an independent allegation.
Finally, Buckner complains about an incident involving a
traffic stop in January 2008.

While driving home on

Interstate 91, he was allegedly stopped by Trooper McNiece for
a routine license plate inspection.

Trooper McNiece then

arrested Buckner for driving under the influence of alcohol
(“DUI”).

Buckner contends that his breath alcohol content was

.049, while the threshold for a DUI conviction in Vermont is
.08.

Although he was never convicted, Buckner reports “[t]he

State of Vermont testified that my prior arrest for DUI was
probable cause for further investigating me for illegal
activity.”

Id. at 13.

This latter allegation may relate to

Buckner’s subsequent interaction with Trooper McNiece in May
2011.
Buckner’s Complaint asserts federal constitutional
claims, as well as state law claims such as defamation,
slander, and intentional infliction of emotional distress.

5

Buckner also asks the Court to initiate a Department of
Justice investigation, and to declare Vermont’s interstate
highway rules, “exterior sniff law,” and “Fair housing and
Public Accommodations law” unconstitutional.

Id. at 14.

Other requested relief includes exemplary, actual,
compensatory and statutory damages.
Discussion
I.

Motions to Dismiss
A.

Legal Standard

Pending before the Court are four motions to dismiss
submitted by Defendants.

Each of the four motions is filed

under Federal Rule of Civil Procedure 12(b)(6), arguing that
Buckner has failed to state a claim upon which relief may be
granted.
When ruling on a motion to dismiss pursuant to Rule
12(b)(6), the Court must accept all factual allegations in the
Complaint as true and draw all reasonable inferences in the
plaintiff’s favor.

Famous Horse Inc. v. 5th Ave. Photo Inc.,

624 F.3d 106, 108 (2d Cir. 2010).

However, the Court is not

required to credit “mere conclusory statements” or
“[t]hreadbare recitals of the elements of a cause of action.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007)).

“To survive a

motion to dismiss, a complaint must contain sufficient factual

6

matter . . . to ‘state a claim to relief that is plausible on
its face.’”

Id. (quoting Twombly, 550 U.S. at 570).

A claim is facially plausible “when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged.”

Id. (citing Twombly, 550 U.S. at 556).

More

specifically, the plaintiff must allege sufficient facts to
show “more than a sheer possibility that a defendant has acted
unlawfully.”

Id.

If the plaintiff has not “nudged [his]

claims across the line from conceivable to plausible, [the]
complaint must be dismissed.”

Twombly, 550 U.S. at 570; see

Iqbal, 556 U.S. at 680.
In ruling on a motion to dismiss under Rule 12(b)(6), a
district court must construe a pro se complaint liberally, see
Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011), and
interpret the claims as raising the strongest arguments that
they suggest.

Triestman v. Fed. Bureau of Prisons, 470 F.3d

471, 474 (2d Cir. 2006).
B.

Defendants Marsh, Soares, and Beraldi

The first motion to dismiss before the Court is that of
Defendants Tom Marsh, Stephen Soares, and James Beraldi.
(Doc. 12.)

Marsh is being sued in his official capacity as

Town Manager of the Town of Windsor.

Soares is sued in his

official capacity as the Windsor Chief of Police.

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Beraldi is

sued in his official capacity as a Sergeant in the Windsor
Police Department.
These Defendants first argue the Complaint fails to
allege that Town Manager Marsh and Police Chief Soares were
personally involved in any unlawful conduct.

With respect to

Buckner’s constitutional claims, “[i]t is well settled in this
Circuit that ‘personal involvement of defendants in alleged
constitutional deprivations is a prerequisite to an award of
damages under § 1983.’”
Cir. 1994).

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

If the defendant is a supervisor, personal

involvement must be shown by evidence of direct participation
in the challenged conduct, or by evidence of the official’s
“(1) failure to take corrective action after learning of a
subordinate’s unlawful conduct, (2) creation of a policy or
custom fostering the unlawful conduct, (3) gross negligence in
supervising subordinates who commit unlawful acts, or (4)
deliberate indifference to the rights of others by failing to
act on information regarding the unlawful conduct of
subordinates.”

Hayut v. State Univ. of New York, 352 F.3d

733, 753 (2d Cir. 2003); see also Back v. Hastings on Hudson
Union Free Sch. Dist., 365 F.3d 107, 127 (2d Cir. 2004);
Johnson v. Newburah Enlarged Sch. Dist., 239 F.3d 246, 254–55
(2d Cir. 2001).

“The fact that [a defendant] was in a high

position of authority is an insufficient basis for the

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imposition of personal liability.”

Al–Jundi v. Estate of

Rockefeller, 885 F.2d 1060, 1065 (2d Cir. 1989); see also
Back, 365 F.3d at 127; Black v. Coughlin, 76 F.3d 72, 74 (2d
Cir. 1996).
As to state law claims, “[u]nder the settled doctrine of
respondeat superior, an employer or master is held vicariously
liable for the tortious acts of an employee or servant
committed during, or incidental to, the scope of employment.”
Brueckner v. Norwich Univ., 169 Vt. 118, 122-23, 730 A.2d
1086, 1090 (1999).

For a claim under respondeat superior to

succeed, “it is essential that there be a master servant
relationship, and that the servant is subject to the master’s
control.”

Verrill v. Dewey, 130 Vt. 627, 635, 299 A.2d 182,

186 (1972).
The Complaint names Town Manager Marsh in the caption,
and again as a Defendant being sued in his official capacity.
However, Buckner does not allege any specific wrongdoing by
Marsh.

Nor is there any claim that Marsh supervised other

Defendants.

Furthermore, Buckner does not allege any sort of

policy, custom, or deliberate indifference that might
establish supervisor liability.

The motion to dismiss with

respect to Defendant Marsh is therefore GRANTED.
Police Chief Soares is alleged to have met with Buckner
about the “unconfirmed rumor” that the Police Department and

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the State Police were conspiring to “get” him.

Soares is also

alleged to have “escorted” Buckner out of the meeting “as if
the complaint was frivolous.”

(Doc. 37-1 at 12.)

these allegations states a claim for relief.

Nothing in

The Supreme

Court has explained that a complaint must do more that infer
“the mere possibility of misconduct.”

Iqbal, 556 U.S. at 679.

Chief Soares’ alleged action – dismissing an unconfirmed rumor
of a conspiracy – does not support even an inference of
misconduct.

There is no claim that Chief Soares denied

Buckner access to public officials, or that his actions
violated Buckner’s rights in any way.

Nor is there a claim

that Chief Soares bears responsibility as a supervisor for
Sergeant Beraldi’s alleged statements about Buckner’s drug
history.

Accordingly, the motion to dismiss with respect to

Soares is GRANTED.
Furthermore, because Marsh, Soares and Beraldi are being
sued in their official capacities, the claims against them
must be analyzed as claims against the Town of Windsor.

See

Hafer v. Melo, 502 U.S. 21, 25 (1991); Kentucky v. Graham, 473
U.S. 159, 165 (1985) (explaining that official capacity suits
“‘generally represent only another way of pleading an action
against an entity of which an officer is an agent.’” (quoting
Monell v. N.Y. City Dep’t of Soc. Servs., 436 U.S. 658, 690

10

n.55 (1978))).

The Complaint must therefore satisfy the

applicable standards for municipal liability.
“‘Congress did not intend municipalities to be held
liable [under § 1983] unless action pursuant to official
municipal policy of some nature caused a constitutional
tort.’”

Hayes v. Cnty. of Sullivan, 853 F. Supp. 2d 400, 438

(S.D.N.Y. 2012) (quoting Monell, 436 U.S. at 691).
Specifically,
[a] plaintiff may assert the existence of a
municipal policy in one of four ways: (1) a formal
policy officially endorsed by the municipality; (2)
actions taken by the government officials
responsible for establishing municipal policies
related to the particular deprivation in question;
(3) a practice so consistent and widespread that it
constitutes a custom or usage sufficient to impute
constructive knowledge of the practice to
policymaking officials; or (4) a failure by policy
makers to train or supervise subordinates.
McLaurin v. New Rochelle Police Officers, 373 F. Supp. 2d 385,
399-400 (S.D.N.Y. 2005).

A municipality may not be held

liable for the actions of its employees on the basis of
respondeat superior.

See Blyden v. Mancusi, 186 F.3d 252, 264

(2d Cir. 1999).
Here, Buckner does not allege any Town of Windsor policy
that led to a violation of his constitutional rights.

Indeed,

he makes no connection whatsoever between Town policymakers
and his allegations of racial profiling.
failure to train or supervise.

Nor does he allege a

His constitutional claims

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against Marsh, Soares and Beraldi in their official capacities
are therefore DISMISSED.
C.

Defendants Rieseberg and Cutting

Defendants Hunter Reiseberg and Glenn Cutting present the
same arguments in their motion to dismiss as those presented
by Marsh, Soares, and Beraldi: lack of personal involvement
and failure to plead municipal liability.

(Doc. 15.)

Rieseberg is sued in his official capacity as Town Manager of
the Town of Hartford.

Cutting is sued in his official

capacity as Chief of Police for the Town of Hartford.
As with Defendant Marsh, there are no specific
allegations of wrongdoing by either Rieseberg or Cutting.
Both are named in the caption, and subsequently as Defendants,
but there is no further reference to either in the Complaint.
Nor is there any allegation to satisfy the requirements for a
claim of municipal liability against the Town of Hartford.
The motion to dismiss Defendants Rieseberg and Cutting is
therefore GRANTED.1
D.

State Defendants

The next motion before the Court is filed by Defendants
Shumlin, Sorrell, Flynn, Ide, Appel, Bahr, Campbell, Erlbaum,
McNiece, Jenkins, Slusser and Zonay (collectively “State

1

The Court notes that in his proposed Amended Complaint,
Buckner deletes any reference to Rieseberg and Cutting. (Doc. 37-1
at 2, 17.)

12

Defendants”).

(Doc. 36.)

The State Defendants assert that

they have only been named, and served, in their official
capacities.

Consequently, their sole argument for dismissal

is on the basis of Eleventh Amendment immunity from suit in
federal court.
To the extent Buckner asserts constitutional claims
against these Defendants in their official capacities, his
claims for money damages are indeed barred by the Eleventh
Amendment.

See Graham, 473 U.S. at 169.

The Eleventh

Amendment generally provides immunity to state officials,
acting in their official capacity, from suits for monetary
damages in federal court.

See Pennhurst State Sch. & Hosp. v.

Halderman, 465 U.S. 89, 97–98 (1984).

Only two narrow

situations limit this principle: (1) when a state expressly
consents to suit, see Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 54 (1996), or (2) when Congress overrides this
immunity by exercising its powers under the Fourteenth
Amendment, see Kimel v. Florida Bd. of Regents, 528 U.S. 62,
80 (2000).
Here, the State of Vermont has not consented to proceed
with this lawsuit.

In fact, the State expressly retains its

Eleventh Amendment immunity.

See 12 V.S.A. § 5601(g)

(“Nothing in this chapter waives the rights of the state under
the Eleventh Amendment of the United States Constitution.”);

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see also 12 V.S.A. § 5602 (providing that any tort claim
against a state employee “shall lie” exclusively “against the
state of Vermont”).

Nor has Congress abrogated Vermont’s

immunity through enacting appropriate legislation.

See Quern

v. Jordan, 440 U.S. 332, 342 (1978) (holding 42 U.S.C. § 1983
does not abrogate States’ Eleventh Amendment immunity).

The

State Defendants’ motion to dismiss Buckner’s official
capacity claims is therefore GRANTED.2
E.

Defendant Howard A. Kalfus

The final motion to dismiss is that of Defendant Howard
A. Kalfus, sued in his official capacity as a Special
Assistant Attorney General for the State of Vermont.
42.)

(Doc.

The sole factual allegation in the Complaint pertaining

to Kalfus is that he “said that [Buckner] was not treated like
a criminal by Trooper Erik McNiece.”

(Doc. 4 at 11.)

Defendant Kalfus first moves for dismissal in his
official capacity on the basis of Eleventh Amendment immunity.
As set forth above, the Eleventh Amendment bars damages claims
brought against state officials sued in federal court in their
official capacities.

Id.

Such claims against Kalfus are

therefore DISMISSED.

2

Although the Complaint mentions injunctive
request is non-specific. The Court therefore finds
apply the exception to Eleventh Amendment immunity,
claims for prospective injunctive relief, set forth
Young, 209 U.S. 123 (1908).

14

relief, the
no basis to
pertaining to
in Ex parte

Kalfus further argues that the facts alleged, even if
accepted as true, fail to set forth a plausible cause of
action under any of Buckner’s various legal theories.

For

example, Kalfus notes that Buckner brings a claim under the
Thirteenth Amendment, and argues that an alleged failure to
characterize Buckner as having been “treated like a criminal”
did not subject Buckner to “‘slavery or involuntary
servitude.’”
§ 1.)

(Doc. 42 at 7) (quoting U.S. Const. amend. XIII,

The Court agrees.

Further, Buckner has failed to

allege any facts to support his state law claims, of which
only defamation and intentional infliction of emotional
distress (“IIED”) could conceivably apply.

As to defamation,

Kalfus is not alleged to have said or published any false or
defamatory statement about Buckner.

See Ryan v. Herald Assoc.

Inc., 152 Vt. 284, 291, 576 A.2d 441, 446 (1990).

Nor was his

alleged conduct – declining to find Trooper McNiece’s conduct
criminal – “beyond all bounds of decency” as required for an
IIED claim.

See Jobin v. McQuillen, 158 Vt. 322, 327, 609

A.2d 990, 993 (1992).

The claims against Kalfus are therefore

DISMISSED.
II.

Buckner’s Motion to Amend Complaint
In light of Defendants’ arguments for dismissal, Buckner

has moved to amend his Complaint to: (1) sue each Defendant in
an individual as well as official capacity; (2) add criminal

15

charges; and (3) add factual allegations against the Town of
Windsor, Defendants Marsh and Soares, and the VHRC.
37, 37-1.)

(Docs.

Rule 15(a)(2) of the Federal Rules of Civil

Procedure provides that “the court should freely give leave
[to amend a pleading] when justice so requires.”

Thus,

“[w]hen a party requests leave to amend its complaint,
permission generally should be freely granted.”

Anderson

News, L.L.C. v. Am. Media, Inc., 680 F.3d 162, 185 (2d Cir.
2012).

However, “[l]eave to amend may properly be denied if

the amendment would be futile,” id. (citing Foman v. Davis,
371 U.S. 178, 182 (1962)), or “where necessary to thwart
tactics that are dilatory, unfairly prejudicial or otherwise
abusive.”

Ching v. United States, 298 F.3d 174, 180 (2d Cir.

2002).
Looking first at Buckner’s proposal to add criminal
charges, the Supreme Court has long held that “a private
citizen lacks a judicially cognizable interest in the
prosecution or nonprosecution of another.”
Timmerman, 454 U.S. 83, 85 (1981).

Leeke v.

This portion of the motion

to amend is therefore DENIED.
The motion to amend to name the State Defendants in their
individual capacities is unopposed, and is therefore GRANTED.
Defendants Marsh and Soares argue the proposed factual
allegations against them “would not cure the deficiencies in

16

the present Complaint.”

(Doc. 41 at 2-3, n.1.)

Those

allegations are that the Town of Windsor, with the cooperation
of Marsh and Soares, initiated a drug task force
investigation, and the investigation was in retaliation for
Buckner’s filing with the VHRC.
The parties have not fully briefed the question of
whether initiation of an investigation, alone, might violate a
plaintiff’s constitutional rights.

The Court notes, however,

that at least in the employment context, courts have declined
to enter judgment as a matter of law in favor of defendants on
such a claim.

See, e.g., Everitt v. DeMarco, 714 F. Supp. 2d

122, 134 (D. Conn. 2010) (finding that initiating an
investigation against the plaintiff in retaliation for
protected speech, by itself, could be an adverse employment
action, thereby preventing the court from granting the
defendant’s motion for summary judgment); but see McInnis v.
Town of Weston, 375 F. Supp. 2d 70, 84 (D. Conn. 2005).

The

Court will therefore allow the amended claims against Marsh
and Soares, in their individual capacities, at this time.
Finally, the motion to amend is opposed by Defendant
Kalfus.

Kalfus argues that suing him in his individual

capacity, without further factual allegations, would be
futile, since the sole allegation against him is that he “said
[Buckner] was not treated like a criminal by Trooper Erik

17

McNiece.”

(Doc. 4 at 11.)

For the reasons discussed

previously, this allegation does not support a plausible cause
of action under either state or federal law.

The motion to

amend to add claims against Kalfus is therefore DENIED.
III. Buckner’s Motions to Expedite and for Subpoena
Buckner also filed a motion to expedite trial, and a
motion for subpoena.

(Docs. 5, 6.)

As a basis for the motion

to expedite, Buckner states: “the above parties should face
their alleged crimes in a timely fashion for legal and
practical reasons.”

(Doc. 5 at 2.)

Because this case has not

yet entered the discovery phase, the motion to expedite trial
is DENIED as premature.
The motion to subpoena, submitted under Fed. R. Civ. P.
45, seeks documents from Defendant Appel and the VHRC.
6.)

(Doc.

To the extent that Appel and the VHRC are parties in this

case, a subpoena is not necessary, as information may be
sought through document requests under Fed. R. Civ. P. 34.
Furthermore, a party generally need not file a motion in order
to obtain a subpoena.

See Fed. R. Civ. P. 45(a)(2).

The

motion to subpoena is therefore DENIED.
Conclusion
For the reasons set forth above, Buckner’s motion to
expedite (Doc. 5) and motion to subpoena (Doc. 6) are DENIED.
Defendants’ motions to dismiss (Docs. 12, 15, 36, 42) are

18

GRANTED.

Buckner’s motion to amend (Doc. 37) is GRANTED to

the extent that all Defendants, with the exception of
Defendants Kalfus, Cutting, and Rieseberg, may be named and
served in their individual capacities, and Buckner may amend
his claims against Defendants Marsh and Soares.
amend is otherwise DENIED.

The motion to

All claims against Defendants

Kalfus, Cutting, and Rieseberg are DISMISSED.
Plaintiff shall file an amended complaint, consistent
with this Opinion and Order, on or before April 5, 2013.
Dated at Brattleboro, in the District of Vermont, this
5th day of March, 2013.

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

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