Buckner v. Shumlin et al

Filing 79

OPINION AND ORDER: granting in part and denying in part 46 , 61 , 64 and 65 Motions to Dismiss ; denying 72 Motion for Injunctive Relief to Refrain from Destroying Evidence; denying 72 Motion to Produce Evidence Requested ; denying 73 Motion to Enforce. This case is DISMISSED with leave to amend. Plaintiff may file a Second Amended Complaint within 30 days of this Opinion and Order. Failure to file a timely Amended Complaint by January 13, 2014 will result in the dismissal of all federal claims with prejudice, and all state law claims without prejudice. Signed by District Judge J. Garvan Murtha on 12/13/2013. (wjf)

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,
Defendants.

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

OPINION AND ORDER
(Docs. 46, 61, 64, 65, 72, 73)
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 two motions filed by Buckner seeking,
among other things, injunctive relief.

For the reasons set

forth below, the motions to dismiss are GRANTED in part,
Buckner’s motions are DENIED, and this case is DISMISSED with
leave to amend.

Factual Background1
On May 17, 2011, Buckner stopped his vehicle on the
shoulder of Interstate 91 due to “an emergency condition.”
(Doc. 45 at 5.)

Vermont State Trooper Erik McNeice

subsequently pulled up behind the vehicle and performed a
routine license plate check before exiting his cruiser.
Trooper McNeice then requested Buckner’s license,
registration, and insurance information.

He also asked for

identification from Buckner’s passenger and inquired as to who
owned the car.
Buckner is an African-American male.
white female.

His passenger was a

The vehicle had North Carolina license plates.

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

Trooper McNeice reportedly told

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

Trooper McNeice subsequently returned the

1

For purposes of the pending motions, the facts alleged
in the Amended Complaint will be accepted as true. See Famous
Horse Inc. v. 5th Avenue Photo Inc., 624 F.3d 106, 108 (2d
Cir. 2010). Those facts were summarized in the Court’s prior
Opinion and Order. (Doc. 44.) Although Buckner has since
amended his Complaint, the factual allegations remain
substantially the same. Accordingly, the Court’s previous
statement of facts is largely repeated here.
2

occupants’ identification papers and “released” them.

Id. at

13.
Buckner was unable to start his car due to a low battery,
and a tow truck was called.

Trooper McNeice contacted his

“personal friend,” Windsor Police Sergeant James Beraldi, to
ask if Sergeant Beraldi had any information about Buckner.
Id.

Sergeant Beraldi responded that he knew of Buckner, and

allegedly described him as “a crackhead.”

Id.

Based upon

this information, Trooper McNeice 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 McNeice 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 McNeice, and
found no wrongdoing by McNeice.

Id. at 14.

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 [he]
would not send in proof of insurance and to send [him] the
ticket because [he would] use that to take them to court.”
Id.

Buckner reports he never received the ticket.

3

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
according to the Amended Complaint, the Town of Windsor now
denies Sergeant Beraldi ever made such a characterization.
Id.2
The VHRC ruled against Buckner in a 3-0 vote.

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 15.

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

2

Elsewhere in the Amended Complaint, Buckner alleges
that he received a letter from the Town of Windsor’s attorney
“stating that the basis of calling [Buckner] a crackhead was
not fact but Officer Beraldi’s opinion.” Id. at 9.
4

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

Id. at 5.

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

Id. at 15.

Buckner reported this rumor to Windsor Town Manager Steven
Cottrell and Windsor Police Chief Steven Soares who, together
with Sergeant Beraldi, allegedly “escorted [Buckner] out as if
the complaint was frivolous.”

Id. at 16.

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 his other claims, or whether it
constitutes an independent claim.

No individual defendants

are named in this allegation.
Buckner also complains about an incident involving a
traffic stop in January 2008.

While driving home on

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

Trooper McNeice 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

5

.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 16.

This latter allegation appears to

provide background for Buckner’s subsequent interaction with
Trooper McNeice in May 2011.
Buckner contends that since filing this case, he has
continued to be the subject of “harass[ment]” by State Police
and the Windsor Police Department.

Id. at 6.

Specifically,

he cites being pulled over by Trooper Slusser on Interstate 89
in September 2012; another stop on Interstate 91 in November
2012; and entry into his home by Windsor police in September
2012, reportedly because they “thought [Buckner] was breaking
into the place.”

Id. at 9.

During the November 2012 traffic

stop, Buckner’s passenger was allegedly assaulted by a State
Police officer.

A complaint was lodged with the State Police

internal affairs division, but Buckner “nor [his] passenger
has heard anything regarding the investigation.”

Id. at 10.

The Amended Complaint asserts federal constitutional
claims, as well as state law claims such as defamation,
slander, assault, and intentional infliction of emotional
distress.

Buckner also asks the Court to initiate a

Department of Justice investigation, and to declare Vermont’s
intertate highway rules, “exterior sniff law,” and “Fair

6

housing and Public Accommodations law” unconstitutional.
at 18.

Id.

Other requested relief includes exemplary,

compensatory and statutory damages.
Defendants previously moved to dismiss, and the Court
dismissed all of Buckner’s claims against them in their
official capacities.

The Court also granted Buckner leave to

amend his Complaint to add individual capacity claims as to
all Defendants except Defendant Howard Kalfus.

Buckner filed

a timely Amended Complaint, and Defendants again move to
dismiss.
Also pending before the Court are Buckner’s “Motion for
Injunctive Order to Refrain from Destroying Evidence and to
Produce Evidence Requested” and “Motion to Enforce.”
72, 73).

(Docs.

The first motion seeks the production and/or

preservation of video and audio recordings regarding a traffic
stop by Vermont State Police Officer Christopher Lora.
Officer Lora is not a party in this case.

The “Motion to

Enforce” requests relief against Attorney Christopher Callahan
for his alleged involvement in “facilitating a ‘drug task
force’ investigation” of Buckner.
Callahan is also not a party.

7

(Doc. 73.)

Attorney

Discussion
I.

Motions to Dismiss
A.

Legal Standard

Two motions to dismiss are before the Court.

The first

is submitted by Defendants Tom Marsh, Steven Soares, and James
Beraldi (collectively the “Town Defendants”).

(Doc. 46.)

The

second is filed on behalf of Defendants Peter Shumlin, William
Sorrell, Keith Flynn, Robert D. Ide, Robert Appel, Joseph
Bahr, Nelson Campbell, Erik McNeice, Richard Slusser, William
Jenkins and John Zonay (collectively the “State Defendants”).
(Doc. 61.)

Both motions seek dismissal under Fed. R. Civ. P.

12(b)(6), asserting failure to state a claim upon which relief
may be granted.
When ruling on a motion to dismiss under 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., 624 F.3d at 108.

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 matter . . . to ‘state a claim to relief

8

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 they
suggest.

Triestman v. Fed. Bureau of Prisons, 470 F.3d 471,

474 (2d Cir. 2006).
B.

Federal Law Claims

The Court has jurisdiction in this case because Buckner
has asserted claims under federal law.

See 28 U.S.C. § 1331.

Before considering any state law claims, the Court will
address the federal claims brought against the Town Defendants
and the State Defendants in turn.

9

1.

Town Defendants

The Town Defendants first move for dismissal of Buckner’s
claims asserted under federal criminal statutes.

The criminal

statutes cited in the Amended Complaint are 18 U.S.C. § 241;
18 U.S.C. § 242; 18 U.S.C. § 1001; and portions of the Rome
Statute of the International Criminal Court.

The Town

Defendants argue that Buckner has no right to bring such
claims in a civil pleading.
The Supreme Court has long held that “a private citizen
lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.”
85 (1981).

Leeke v. Timmerman, 454 U.S. 83,

Moreover, criminal statutes such as those cited in

the Amended Complaint do not provide private causes of action.
See Robinson v. Overseas Military Sales Corp., 21 F.3d 502,
511 (2d Cir. 1994) (regarding federal criminal statutes); see
also United States v. De La Pava, 268 F.3d 157, 164 (2d Cir.
2001) (“[T]here is a strong presumption against inferring
individual rights from international treaties.”); Garza v.
Lappin, 253 F.3d 918, 924 (7th Cir. 2001) (“[A]s a general
rule, international agreements, even those benefitting private
parties, do not create private rights enforceable in domestic

10

courts.”).

All claims brought pursuant to criminal statutes

are therefore DISMISSED.3
The Town Defendants next move to dismiss Buckner’s claims
brought under 42 U.S.C. §§ 3789d and 14141.

Section 3789d

prohibits exclusion from participation in federally-funded
activities, and thus has no application to this case.

Section

14141, which authorizes the Department of Justice to initiate
a civil action against a law enforcement agency, does not
provide a private right of action.

See Rangel v. Reynolds,

607 F. Supp. 2d 911, 925 n.6 (N.D. Ind. 2009); Inkel v. Bush,
2004 WL 2381747, at *3 (D. Conn. Oct. 19, 2004).

Those causes

of action are therefore DISMISSED.
The Town Defendants further argue for dismissal of
Buckner’s Thirteenth Amendment claim.

The Thirteenth

Amendment provides that “[n]either slavery nor involuntary
servitude, except as a punishment for crime whereof the party
shall have been duly convicted, shall exist within the United
States, or any place subject to their jurisdiction.”
Const. amend. XIII, § 1.

U.S.

In United States v. Kozminski, 487

U.S. 931, 952 (1988), the Supreme Court defined involuntary
servitude as “a condition of servitude in which the victim is
forced to work for the defendant by the use or threat of

3

The Court notes that it previously denied leave to
amend the criminal claims. (Doc. 44 at 16.)
11

physical restraint or physical injury, or by the use or threat
of coercion through law or the legal process.”

In this case,

Buckner does not allege any facts suggesting he was subjected
to involuntary servitude.

The Thirteenth Amendment claim is

therefore DISMISSED.
Buckner also accuses the Town Defendants of helping to
initiate a retaliatory investigation.

Specifically, he claims

that Town Manager Marsh and Police Chief Soares were involved
in the commencement of a drug task force investigation after
he filed charges with the VHRC.

The Town Defendants have

appropriately interpreted this as a claim under the First
Amendment.4
“To state a First Amendment retaliation claim, a
plaintiff must establish that: (1) his speech or conduct was
protected by the First Amendment; (2) the defendant took an
adverse action against him; and (3) there was a causal
connection between this adverse action and the protected
speech.”

Cox v. Warwick Valley Cent. Sch. Dist., 654 F.3d

267, 272 (2d Cir. 2011).

The U.S. Supreme Court has held that

“[o]fficial reprisal for protected speech ‘offends the
Constitution [because] it threatens to inhibit exercise of the

4

In its prior Opinion and Order, the Court invited
further briefing on “the question of whether initiation of an
investigation, alone, might violate a plaintiff’s
constitutional rights.” (Doc. 44 at 17.)
12

protected right,’ and the law is settled that as a general
matter the First Amendment prohibits government officials from
subjecting an individual to retaliatory actions, including
criminal prosecutions, for speaking out.”

Hartman v. Moore,

547 U.S. 250, 256 (2006) (alteration in original and citations
omitted).
The Town Defendants do not dispute Buckner’s assertion
that his VHRC complaint constituted protected speech.

They

also concede that a criminal prosecution in retaliation for
protected speech would have provided him with a plausible
First Amendment claim.

In this case, however, Buckner alleges

a retaliatory investigation.

The Town Defendants argue that

an investigation does not give rise to a constitutional claim.
The Second Circuit has not determined whether an
investigation can give rise to a First Amendment retaliation
claim.

In Hartman, the Supreme Court mentioned, but did not

resolve, the issue: “No one here claims that simply conducting
a retaliatory investigation with a view to promote a
prosecution is a constitutional tort. . . .

Whether the

expense or other adverse consequences of a retaliatory
investigation would ever justify recognizing such an
investigation as a distinct constitutional violation is not
before us.”

547 U.S. at 262 n.9.

Federal courts in other

circuits have determined that a retaliatory investigation does

13

not form the basis of a constitutional claim.

See, e.g.,

Rehberg v. Paulk, 611 F.3d 828, 850 n.24 (11th Cir. 2010)
(“The initiation of a criminal investigation in and of itself
does not implicate a federal constitutional right.”); YazidMazin v. McCormick, 2013 WL 5758716, at *4 n.5 (D.N.J. Oct.
24, 2013) (“Simply conducting a retaliatory investigation with
a view to promote a prosecution does not state a claim under §
1983.”); Roark v. United States, 2013 WL 1071778, at *5 (D.
Or. Mar. 12, 2013) (denying a motion to amend complaint
because “plaintiff cannot evince the existence of a
constitutional tort based on a retaliatory investigation”)
(citing Rehberg, 611 F.3d at 850-51).
The Town Defendants also assert that, even assuming
Buckner can state a constitutional claim for retaliatory
investigation, they are protected by qualified immunity.

“The

doctrine of qualified immunity protects government officials
‘from liability for civil damages insofar as their conduct
does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.’”

Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).

In

determining whether this defense applies, courts often conduct
a two-step analysis, first considering whether there has been
a “violation of a constitutional right,” and then considering

14

whether the right was “clearly established at the time.”
Pearson, 555 U.S. at 232.

“In answering that [second]

question, we look to whether (1) the right was defined with
reasonable clarity, (2) the Supreme Court or the Second
Circuit has confirmed the existence of the right, and (3) a
reasonable defendant would have understood from the existing
law that his conduct was unlawful.”

Bailey v. Pataki, 708

F.3d 391, 404–405 (2d Cir. 2013).
Here, the Court finds that qualified immunity bars
Buckner’s claim because the law with respect to retaliatory
investigations is not clearly established.

See Pearson, 555

U.S. at 236 (permitting lower court judges to determine “which
of the two prongs of the qualified immunity analysis should be
addressed first”). As discussed above, the U.S. Supreme Court
has explicitly declined to resolve the question, and there is
no Second Circuit authority directly on point.

To the extent

that rulings from other jurisdictions may be instructive, the
cases cited above suggest that merely initiating an
investigation does not constitute First Amendment retaliation.
“Where the defendant seeks qualified immunity, a ruling
on that issue should be made early in the proceedings so that
the costs and expenses of trial are avoided where the defense
is dispositive.”

Saucier v. Katz, 533 U.S. 194, 200 (2001),

overruled in part on other grounds by Pearson, 555 U.S. 223.

15

When the defense of qualified immunity is raised as part of a
12(b)(6) motion, a court must decide whether the complaint has
plausibly alleged that the government official claiming
immunity violated a constitutional right and whether that
right was “clearly established” at the time of the alleged
misconduct.

Id. at 232.

Here, the Court finds that the law

concerning allegedly retaliatory investigations was not
clearly established, and accepting the allegations in the
Amended Complaint as true, concludes the Town Defendants are
entitled to qualified immunity on that claim.

All federal

claims against the Town Defendants are therefore DISMISSED.
2.

State Defendants

Buckner also brings various federal law claims against
the State Defendants.

Those Defendants first argue that all

claims brought against Governor Shumlin, Attorney General
William Sorrell, Commissioner Keith Flynn of the Vermont
Department of Public Safety, and Commissioner Robert Ide of
the Department of Motor Vehicles must be dismissed for lack of
personal involvement.
“It 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.’”

Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994).

the defendant is a supervisor, personal involvement must be

16

If

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); Colon v. Coughlin, 58
F.3d 865, 873 (2d Cir. 1995).

“The fact that [a defendant]

was in a high position of authority is an insufficient basis
for the 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).
Attorney General Sorrell is named only in the caption of
the Amended Complaint.

Absent any substantive allegations

against Sorrell, the claims against him are DISMISSED.

See

Carrasquillo v. City of New York, 324 F. Supp. 2d 428, 435
(S.D.N.Y. 2004) (dismissing pro se complaint against
individual defendants not mentioned in body of complaint).

As

to Commissioners Ide and Flynn, Buckner claims that they each

17

concluded he “was not treated like a criminal by” Trooper
McNiece.

(Doc. 45 at 15.)

Buckner does not allege any

specific federal violations with respect to these claims, and
even construing the Amended Complaint liberally, the Court is
unable to discern a cause of action.

The claims against

Defendants Ide and Flynn are therefore DISMISSED.
With respect to Governor Shumlin, Buckner claims that
“[t]he [VHRC] authorized and supported the Town of Windsor to
initiate a drug task force investigation.

The State of

Vermont did this willfully and intentionally through Nelson
Campbell under the direction of Robert Appel and Robert Appel
under the direction of Peter Shumlin.”

Id. at 17.

A fair

reading of this claim is that a VHRC investigator took action
while under the supervision of VHRC Executive Director Appel,
who was in turn appointed by the Governor.

Given this

reading, Governor Shumlin cannot be held liable merely because
he held a position of authority.

Al–Jundi, 885 F.2d at 1065.

Even assuming, for the sake of argument, a claim that Governor
Shumlin actively directed the VHRC Executive Director to
direct his investigator to, in turn, direct the Town of
Windsor to initiate a drug task force investigation, the
allegation is unsupported, conclusory, and implausible, and is
therefore DISMISSED.

See Hayden v. Paterson, 594 F.3d 150,

18

162 (2d Cir. 2010) (setting aside conclusory allegations made
in intentional discrimination claim).
The State Defendants next argue that Buckner has failed
to state a claim for relief against State Troopers McNeice,
Slusser, Jenkins, and Zonay.

Their first argument is that

Trooper McNeice did not violate Buckner’s constitutional
rights while Buckner was broken down on the side of Interstate
91 in May 2011.

As set forth above, the relevant facts are

that while Buckner was broken down, Trooper McNeice asked
Buckner and his passenger for identification, and subsequently
ordered a dog sniff while the car was stationary.
With respect to any potential Fourth Amendment claim, a
Fourth Amendment seizure occurs only when “the officer, by
means of physical force or show of authority, has in some way
restrained the liberty of a citizen.”
U.S. 429, 434 (1991).

Florida v. Bostick, 501

“Even when officers have no basis for

suspecting a particular individual, they may generally ask
questions of that individual, ask to examine the individual’s
identification, and request consent to search his or her
luggage – so long as the police do not convey a message that
compliance with their requests is required.”

Id. at 434-35.

Here, although Buckner claims that McNeice’s actions made
him uncomfortable, there is no allegation that McNeice
restrained his liberty.

See United States v. Glover, 957 F.2d

19

1004, 1009 (2d Cir. 1992) (no seizure found where defendant
was asked in a non-threatening manner about his travel and
identification).

The Amended Complaint states that McNeice

asked for identification, noted that Buckner was visibly
nervous, and “released [Buckner] to go.”

(Doc. 45 at 13.)

Nothing in these facts suggests a Fourth Amendment seizure.
As to the subsequent sniff search, the factual
allegations do not set forth a constitutional violation.

In

Illinois v. Caballes, 543 U.S. 405 (2005), the Supreme Court
held that “the use of a well-trained narcotics-detection dog
. . . during a lawful traffic stop, generally does not
implicate legitimate privacy interests” and thus does not
constitute a search for Fourth Amendment purposes.
409.

Id. at

The Supreme Court further held, however, that a traffic

stop justified “solely by the interest in issuing a warning
ticket to the driver can become unlawful if it is prolonged
beyond the time reasonably required to complete that mission.”
Id. at 407.

That said, “[a]n officer’s inquiries into matters

unrelated to the justification for the traffic stop . . . do
not convert the encounter into something other than a lawful
seizure, so long as those inquiries do not measurably extend
the duration of the stop.”

United States v. Harrison, 606

F.3d 42 (2d Cir. 2005) (quoting Arizona v. Johnson, 555 U.S.
323 (2009)).

20

Here, there was no traffic stop.

Buckner’s car was

broken down, and Trooper McNeice called for a dog sniff.
There is no allegation that McNeice “measurably” extended
Buckner’s time on the side of the road.

Id.

In fact, the

Amended Complaint states that Trooper McNeice “released”
Buckner prior to the dog sniff.

(Doc. 45 at 13.)5

Accordingly, even accepting all facts alleged in the Amended
Complaint as true, the allegations do not support a claim of
either unlawful search or seizure.
It is not clear from the Amended Complaint whether
Buckner is alleging Fourth Amendment claims against Defendants
Zonay and Jenkins.

Zonay, a Department of Motor Vehicles

Inspector who was allegedly called at Buckner’s request to
observe Trooper McNeice, is claimed to have stated that
Buckner appeared nervous.

State Police Lieutenant Jenkins is

claimed to have reviewed the video of McNeice’s interactions
with Buckner and concluded that McNeice did nothing wrong.
Jenkins also allegedly required Buckner to provide proof of
insurance.

The Court finds these allegations do not support a

Fourth Amendment claim.

5

The only suggestion that Buckner might have been
delayed is the claim that “McNeice said the tow truck had
arrived but he was still going to do an exterior sniff.” Id.
This allegation does not give rise to an inference of a
measurable delay. As set forth below, the Court grants
Buckner leave to amend his claim of an unlawful seizure.
21

The State Defendants also address Buckner’s
discrimination claim, brought under the Fourteenth Amendment,
and presumably the Equal Protection Clause.
was the victim of racial profiling.

Buckner claims he

(Doc. 45 at 12.)

More

specifically, he contends that “what I think happened” is that
when Trooper McNeice “saw the race of me and my passenger, he
suspected that we were into illegal activity” and “started his
spontaneous investigation into our personal business.”

Id. at

5.
The Equal Protection Clause “is essentially a direction
that all persons similarly situated should be treated alike.”
City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432,
439 (1985).

Buckner may pursue an equal protection claim

under a number of theories, including that McNeice treated him
differently than a similarly situated individual as a result
of intentional or purposeful discrimination, or that McNeice
applied a facially-neutral law or policy in an intentionally
discriminatory race-based manner.

Doe v. Vill. of Mamaroneck,

462 F. Supp. 2d 520, 543 (S.D.N.Y. 2006).
While Buckner need not show that he was treated
differently than similarly situated persons, see Pyke v.
Cuomo, 258 F.3d 107, 108–109 (2d Cir. 2001), his
discrimination claim must still plead sufficient facts to
“nudge his claims of invidious discrimination across the line

22

from conceivable to plausible.”

Iqbal, 556 U.S. at 680; see

also id. at 678 (“[T]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do
not suffice.”).

Indeed, the Amended Complaint must “permit a

court to ‘infer more than the mere possibility of
[discriminatory] misconduct.’”

Kajoshaj v. New York Dep’t of

Educ., 2013 WL 5614113, at *3 (2d Cir. Oct. 15, 2013) (summary
order) (quoting Iqbal, 556 U.S. at 679).
Despite alleging “facts consistent with a discrimination
claim[,]” Buckner’s claim “nevertheless ‘stops short of the
line between possibility and plausibility of entitlement to
relief,’ because plaintiff[ ] do[es] not allege any facts
supporting an inference of racial animus.”

Sanders v.

Grenadier Realty, Inc., 367 F. App’x 173, 175 (2d Cir. 2010)
(quoting Iqbal, 556 U.S. at 678).

As this Court noted

previously, “no court has apparently held that mere knowledge
of a person’s race, coupled with an arguably excessive
response, will suffice.”

Burwell v. Peyton, 2013 WL 1386290,

at *5 (D. Vt. Apr. 4, 2013) (citing Lizardo v. Denny’s, Inc.,
270 F.3d 94, 102 (2d Cir. 2001) (“Although mistreatment by
defendants is not irrelevant in assessing the strength of
plaintiffs’ circumstantial evidence of race-based animus, it
is certainly not sufficient to establish it.”); Bishop v. Toys
“R” US–NY, LLC, 2009 WL 440434, at *6 (S.D.N.Y. Feb. 19, 2009)

23

(“Hostile conduct may support an inference of discrimination,
but is not alone sufficient.”)).

Indeed, “it is hornbook law

that the mere fact that something bad happens to a member of a
particular racial group does not, without more, establish that
it happened because the person is a member of that racial
group.”

Williams v. Calderoni, 2012 WL 691832, at *7

(S.D.N.Y. Mar. 1, 2012); see also Johnson v. City of New York,
669 F. Supp. 2d 444, 450 (S.D.N.Y. 2009) (“The mere fact that
plaintiff and defendants are of different races, standing
alone, is simply insufficient as a factual pleading to allege
racially motivated discrimination[.]”).
Buckner concludes that the investigative actions taken by
Trooper McNeice were based upon race.

However, “[b]ecause the

majority of plaintiff’s allegations do ‘little more than cite
to [his] mistreatment and ask the court to conclude that it
must have been related to [his] race’ . . . the allegations in
the complaint do not plausibly give rise to a claim for
discriminatory intent.”

See Garzon v. Jofaz Transp., Inc.,

2013 WL 783088, at *3 (E.D.N.Y. Mar. 1, 2013) (quoting
Lizardo, 270 F.3d at 104).

This claim is therefore DISMISSED,

with leave to amend as set forth below.
The State Defendants next address the claims brought
against VHRC Executive Director Appel, and VHRC investigator
Campbell.

The allegations against Campbell pertain to her

24

investigation of Buckner’s complaint, and her alleged failure
to disclose certain investigative files.

With respect to the

investigation, Campbell allegedly suggested that Sergeant
Beraldi was unlikely to lie, and declined to include in her
report Beraldi’s alleged admission that he had no basis for
calling Buckner a “crackhead.”
The State Defendants submit that Buckner has failed to
assert a federal law cause of action against Campbell.
Indeed, reading the Amended Complaint liberally, it is
difficult to discern such a cause of action aside from general
discrimination, which, as discussed above, requires factual
support.

See Twombly, 550 U.S. at 570.

Because Buckner

offers no such support, the claims against Campbell are
DISMISSED.
Buckner also claims that Appel and Campbell “authorized
and supported” a drug task force investigation.
1.)

(Doc. 45 at

The State Defendants adopt and incorporate the Town

Defendants’ arguments on this point, asserting that there is
no First Amendment right to be free from investigation.
e.g., Rehberg, 611 F.3d at 850 n.24.

See,

The State Defendants

also contend that this claim is implausible, as the VHRC has
no authority to initiate drug task force investigation.
V.S.A. § 4551.

See 9

The Court agrees on both points (to the extent

25

qualified immunity applies to the First Amendment claim), and
this claim is DISMISSED.
Buckner has also named Joseph Bahr as a Defendant,
contending that Bahr, together with Appel and Campbell,
“assured” him that he “would receive the interview as well as
the interview notes with Windsor Sergeant James Beraldi.”
(Doc. 45 at 15.)

This claim is not linked to any cause of

action, and the Court is unable to identify such a cause,
therefore the claim against Defendant Bahr is DISMISSED.
The remaining federal claims against the State
Defendants, such as Buckner’s citations to criminal statutes
and laws authorizing action by the U.S. Attorney General, are
without merit for the reasons set forth above in the analysis
of the Town Defendants’ motion to dismiss.

Moreover, his

constitutional challenges to Vermont statutes are unsupported
by either facts or legal authority.

Accordingly, Buckner’s

federal law claims against the State Defendants are DISMISSED.
II.

State Law Claims and Leave to Amend
Given that the Court is dismissing all federal law

claims, and there is no allegation of diversity of
citizenship, the Court declines to exercise supplemental
jurisdiction over Buckner’s state law claims in the absence of
a viable federal claim.

See 28 U.S.C. § 1367(c) (granting

courts discretion with respect to claims brought pursuant to

26

supplemental jurisdiction when the underlying federal claims
are dismissed); see also Matican v. City of New York, 524 F.3d
151, 154–55 (2d Cir. 2008) (“[I]f [plaintiff] has no valid
claim under § 1983 against any defendant, it is within the
district court’s discretion to decline to exercise
supplemental jurisdiction over the pendent state-law
claims.”); see also Valencia ex rel. Franco v. Lee, 316 F.3d
299, 305 (2d Cir. 2003) (“Needless decisions of state law
should be avoided both as a matter of comity and to promote
justice between the parties, by procuring for them a
surer-footed reading of applicable law.”).

The instant

litigation is still in the early stages, dismissal without
prejudice will not inconvenience the parties, and Buckner will
be able to re-file his claims in state court.

See 28 U.S.C. §

1367(d) (tolling statute of limitations for thirty days after
dismissal unless state law provides for a longer time period).
There remains the matter of leave to amend.

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.”

Where a pro se complaint fails to state

a cause of action, the court generally “should not dismiss
without granting leave to amend at least once when a liberal
reading of the complaint gives any indication that a valid
claim might be stated.”

Cuoco v. Moritsugu, 222 F.3d 99, 112

27

(2d Cir. 2000) (internal quotation and citation omitted).
However, an opportunity to amend is not required where “the
problem with [the plaintiff’s] causes of action is
substantive” such that “better pleading will not cure it.”
Id. (citation omitted).
Here, many of Buckner’s claims are futile, including his
claims of criminal violations, his Thirteenth Amendment claim,
and his retaliatory investigation claim.

As these are the

only identifiable federal law claims being brought against the
Town Defendants, the Court will not grant leave to amend with
respect to those Defendants.
With respect to the State Defendants, Buckner’s claims of
unconstitutional conduct do not raise plausible causes of
action.

Nonetheless, his claims of racial profiling and an

improper Fourth Amendment seizure of his vehicle by Trooper
McNeice may benefit from “better pleading.”

Id.

Accordingly,

the Court grants Buckner limited leave to amend only those
claims brought against McNeice under the Fourth and Fourteenth
Amendments.

If plaintiff amends to successfully allege a

timely and plausible federal cause of action, the Court will
entertain plaintiff’s state law claims at that time.
Conversely, if plaintiff fails to state a viable federal
claim, the Court will continue to decline supplemental
jurisdiction over the state law claims.

28

Accordingly, the

Defendants’ motions to dismiss Buckner’s state law claims are
denied without prejudice and may be renewed if Buckner amends
to adequately plead a plausible federal cause of action.

See,

e.g., Clement v. United Homes, LLC, 914 F. Supp. 2d 362, 377
(E.D.N.Y. 2012).
III.

Buckner’s Motions
Buckner has filed two motions for injunctive relief.

The

first (Doc. 72) asks the Court to order the preservation of
records pertaining alleged misconduct by Vermont State Trooper
Christopher Lora.

Trooper Lora is not currently a party in

this case, therefore the Court has no jurisdiction to order
such relief.

See Fed. R. Civ. P. 65(d)(2) (“Every order

granting an injunction . . . binds only . . . the parties
. . . .”); United States v. Regan, 858 F.2d 115, 120 (1988)
(discussing the “proposition [, supported by both statute and
case law] that a court generally may not issue an [injunctive]
order against a nonparty.”).

Moreover, the State Defendants

have confirmed their commitment and obligation to preserve
materials in their possession under Fed. R. Civ. P. 26.

(Doc.

75 at 2.)
Buckner also asks the Court to order injunctive relief
against Attorney Christopher Callahan.

(Doc. 73.)

Attorney

Callahan is alleged to have been counsel for the Town of
Windsor, and to have been involved in ordering a drug task

29

force investigation.

Like Trooper Lora, Attorney Callahan is

not currently a party to this case.

Accordingly, no such

relief will be ordered.
Conclusion
For the reasons stated herein, Defendants’ motions to
dismiss (Docs. 46, 61, 64 and 65)6 are GRANTED with respect to
all federal law claims, and DENIED without prejudice as to
Buckner’s state law claims.
72 and 73) are DENIED.

Buckner’s pending motions (Docs.

Buckner may file a Second Amended

Complaint, pursuant to the limitations set forth above, within
30 days of this Opinion and Order.

Failure to file a timely

Amended Complaint by January 13, 2014 will result in the
dismissal of all federal claims with prejudice, and all state
law claims without prejudice.
Dated at Brattleboro, in the District of Vermont, this
13th day of December, 2013.

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

6

Documents 64 and 65 move for dismissal of an Amended
Complaint (Doc. 63) filed on June 21, 2013 without leave of
the Court. There is no substantive difference between that
Amended Complaint and its predecessor (Doc. 45). Accordingly,
these motions to dismiss are also GRANTED.
30