Mason v. Taylor et al
Filing
23
ORDER granting in part and denying in part 7 Motion to Dismiss; granting 11 Motion for Leave to File; granting 14 Motion for Leave to File. Signed by District Judge J. Garvan Murtha on 2/10/2015. (esb)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
RHONDA TAYLOR, Individually and as
Personal Representative of the estate of
MACADAM LEE MASON, by and through its
Administratrix, RHONDA TAYLOR,
:
:
:
:
:
Plaintiffs,
:
:
v.
:
:
VERMONT STATE SENIOR TROOPER
:
DAVID SCHAFFER1, in his individual and official :
capacities; VERMONT STATE POLICE DET.
:
SGT. DAVID ZORN, in his individual and official :
capacities; COL. THOMAS L’ESPERANCE,
:
COMMANDER OF THE VERMONT STATE
:
POLICE, in his individual and official capacities;
:
and COMMISSIONER KEITH FLYNN, in his
:
individual and official capacities,
:
:
Defendants.
:
__________________________________________:
Case No. 1:14-cv-123-jgm
ORDER ON MOTION TO DISMISS AND
MOTION FOR LEAVE TO FILE SUPPLEMENTAL PLEADINGS
(Docs. 7, 11, 14)
I.
Introduction
Macadam Lee Mason died after Defendant David Shaffer, a Vermont State Police officer,
deployed a taser against him on June 20, 2012. Mason’s mother, Rhonda Taylor, brings suit on
behalf of his estate for violations of his Fourth and Fourteenth Amendment rights under 42 U.S.C. §
1983, § 504 of the Rehabilitation Act, Title II of the Americans with Disabilities Act, common law
assault and battery, and common law negligence. In her personal capacity, Taylor brings claims for
1
Defendants state the names of David Shaffer and Jacob Zorn are misspelled in the caption of the
Complaint. (Doc. 7 at 1, n.1.) The Clerk is directed to correct the docket caption to reflect the correct
spelling of each name.
parental loss of consortium and intentional infliction of emotional distress. Defendants moved to
dismiss these claims. (Doc. 7.)
Plaintiff Taylor subsequently moved for permission to file supplemental pleadings. (Doc.
11.) The supplemental materials support her argument that she was in fact the administratrix of
Mason’s estate at the time she filed her Complaint. After the Civil Division of the Orange County
Superior Court reappointed her administratrix of Mason’s estate, Taylor again moved to file
supplemental pleadings. (Doc. 14.) Defendants oppose both motions. (Docs. 13, 21.)
Based on the following, Taylor’s Motions for Leave to File Supplemental Pleadings (Docs.
11, 14) are GRANTED. Defendants’ Motion to Dismiss (Doc. 7) is GRANTED in part and
DENIED in part.
II.
Background
The facts are taken from the Complaint. On June 20, 2012, Macadam Lee Mason died after
Defendant David Shaffer, a Vermont State Police (“VSP”) officer, deployed a taser against him.
(Doc. 1 (Compl.) ¶ 4.) The Complaint alleges that Mason suffered from a seizure disorder due to
traumatic brain injury (Id. ¶¶ 20-21) and several other diagnosed mental disorders (Id. ¶¶ 22, 34, 35).
On June 19, 2012, Mason suffered a seizure. (Id. ¶ 23.) The next day he exhibited erratic
behavior and called his mental health case worker to report he was having a difficult time and
experiencing suicidal ideations. (Id. ¶ 26.) The case worker told Mason to call his neurologist at
Dartmouth Hitchcock Medical Center (“DHMC”). (Id. ¶ 27.) DHMC later called VSP to report a
call from an unidentified man who had stated he wanted to slit his throat in the back yard. (Id. ¶ 2829.) A reverse phone check indicated the caller was Mason, who was at the home of Theresa
Davidonis, his life partner. (Id. ¶ 30.) DHMC asked the police the check on Mason’s welfare.
2
(Id. ¶ 21.) Mason subsequently called DHMC a second time and informed them if police came to
his location he hoped they would shoot him. (Id. ¶ 33.) DHMC reported this to VSP. (Id.)
In response to the first call from DHMC, VSP dispatched three troopers, Defendant
Trooper Jacob Zorn, Trooper Abigail Drew, and Trooper Charles Schulze, to Davidonis’ home to
conduct a welfare check on Mason. (Id. ¶ 38.) The police called Davidonis and requested she
return to her home. (Id. ¶ 41.) Davidonis told the police no one should be in her house (Id. ¶ 42)
and there were no guns at her home (Id. ¶ 43). When she arrived at home she informed Troopers
Drew and Schulze of Mason’s seizure the previous day and told them he needed to be left alone.
(Id. ¶ 46.) She asked VSP to leave the property and told them she would take care of Mason. (Id.
¶¶ 47-48.) After Davidonis returned to work, VSP continued to watch her home (Id. ¶ 65), calling
her to report someone was in her house. (Id. ¶ 64.) Davidonis again told the police to leave Mason
alone, as this was the best response to his “post-epileptic seizures.” (Id. ¶ 67.) Davidonis returned
when VSP told her they would enter her home if she did not return as soon as possible. (Id. ¶ 68.)
Defendant Trooper Shaffer, who had dealt with Mason in the past, arrived at 6:20 p.m. (Id.
¶¶ 71, 73.) Shaffer had read the report stating the welfare check on Mason was prompted by a call
from DHMC indicating Mason was in the midst of a mental health episode. (Id. ¶ 70.) Zorn
instructed Shaffer to help set up a perimeter of the residence. (Id. ¶ 73.) In the perimeter, Shaffer
observed Mason walking out of the woods. (Id. ¶ 78.) Shaffer approached Mason with his M4 rifle
aimed at Mason and requested he show his hands. (Id. ¶ 80.) He ordered Mason to lie down on the
ground, and Mason slowly complied. (Id. ¶ 84.) When Shaffer approached Mason, Mason got up
and swore at Shaffer, stating “Why don’t you just go ahead and shoot me?” (Id. ¶ 85.) Shaffer then
switched from his rifle to an X26 Taser. (Id. ¶ 86.) Shaffer claims Mason was walking toward him
with his right hand flipping him off and his left hand clenched (Id.), but Davidonis and her son,
3
Eriks Davidonis, claim Mason walked toward Shaffer with his hands in the air (Id. ¶ 87.) Shaffer
claims he felt threatened by Mason, and shot Mason in the chest with his taser. (Id. ¶ 89.) Mason
immediately collapsed and VSP handcuffed him, only to remove the handcuffs in order to perform
CPR on him. (Id. ¶¶ 111-16.) Shaffer called for EMT and paramedic assistance at 6:23 p.m. (Id.)
After being taken to the hospital, Mason died at 7:40 p.m. (Id. ¶ 127.)
Plaintiff Taylor, Mason’s mother, was originally appointed administratrix of Mason’s estate
without objection, but on February 20, 2014 the Probate Division of Orange County Superior Court
removed her and appointed Corinna Megalhaes, the mother of Mason’s child. (Doc. 7-1.) Taylor
contested this decision, and on November 3, 2014 the Civil Division of Orange County Superior
Court entered an order affirming Taylor’s continuous appointment as administratrix of Mason’s
estate. (Doc. 14-2.)
III.
Discussion
Defendants move to dismiss the Complaint, principally on the ground that Taylor lacked
standing to file it. (Doc. 7.) Taylor opposes the Motion to Dismiss and moves to allow
supplemental pleadings in opposition. (Docs. 11, 14). The supplemental pleadings support her
assertion she was the proper administratrix of Mason’s estate at the time she filed her Complaint.
A.
Standard of Review
When a motion to dismiss cites Rule 12(b)(1) as a grounds for dismissal, “the court should
consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject
matter jurisdiction, the accompanying defenses and objections become moot and do not need to be
determined.” Rhulen Agency, Inc. v. Alabama Ins. Guaranty Ass’n, 896 F.2d 674, 678 (2d Cir.
1990) (citation omitted). When deciding a motion to dismiss under Rule 12(b)(1), the burden is on
the party invoking federal jurisdiction to prove facts to establish that jurisdiction. See Taite v.
4
Shinseki, No. 5:10-cv-270, 2011 WL 2414316, at *2 (D. Vt. June 14, 2011). The court may consider
affidavits and other materials beyond the pleadings to resolve the jurisdictional issue. See Zappia
Middle E. Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000).
To survive a motion to dismiss under Rule 12(b)(6) “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“The plausibility standard is not akin to a ‘probability requirement,’ but asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. at 678. “[C]ourts must consider the complaint
in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6)
motions to dismiss, in particular, documents incorporated into the complaint by reference, and
matters of which a court may take judicial notice.” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551
U.S. 308, 322 (2007).
B.
Administratrix Status
To sue on behalf of Mason’s estate, Taylor must be the proper administratrix under
Vermont law. See Fed. R. Civ. P. 17(b)(3) (for all parties other than an individual or a corporation,
capacity to sue is determined “by the law of the state where the court is located”); Weinstein v. Med.
Ctr. Hosp. of Vt., Inc., 358 F. Supp. 297, 298 (D. Vt. 1972) (“Since the plaintiff instituted the suit as
administratrix, her capacity to maintain the action is determined according to the law of Vermont.”).
Vermont law provides that “[a]n executor or administrator may commence . . . in the right of the
deceased, actions which survive to such executor or administrator and are necessary for the recovery
and protection of the property rights of the deceased.” 14 V.S.A. § 1401. Survival causes of action
for personal injury may be “commenced and prosecuted by or against the executor or
administrator.” 14 V.S.A. § 1453. Actions for wrongful death must be brought by the deceased’s
5
“personal representative.” 14 V.S.A. § 1492. Taylor only has “capacity to maintain the present
action” if she “has authority to proceed” from the probate court. Weinstein, 358 F. Supp. at 299.
Taylor was not administratrix on the date she filed suit, but the Civil Division of Orange
County Superior Court has since reappointed her with retroactive effect. Taylor was originally
appointed administratrix of Mason’s estate on August 9, 2012, but was removed by the Orange
County Probate Division on February 20, 2014. Taylor filed her Complaint on June 18, 2014. On
November 3, 2014 the Civil Division appointed Taylor administratrix by an order that applied
retroactively -- it affirmed “the continuous appointment of Rhonda Taylor [as administratrix of
Mason’s estate] made by the Probate Division on August 9, 2012.” (Doc. 14-2.)
1.
Leave to File Supplemental Pleadings (Docs. 11, 14)
Taylor moves for leave to file supplemental pleadings supporting her status as administratrix,
attaching documents from the Probate Division and Civil Division. (Docs. 11, 14.)
As an initial matter, Defendants argue Taylor failed to attempt to contact and confer with
Defendants’ counsel to obtain agreement to the relief requested in the Plaintiffs’ Motion, as required
by the Local Rules. See D. Vt. L.R. 7(a)(7) (“A party filing a non-dispositive motion must certify
that the party has made a good faith attempt to obtain the opposing party’s agreement to the
requested relief.”). Local Rule 7(a)(7) is more than a pro forma requirement:
Plaintiffs must . . . seek Defendant’s consent to their proposed Amended Complaint
before . . . [filing]. This requirement is not a meaningless gesture. It allows the
parties through the consent process to narrow the scope of any dispute regarding the
proposed amendments prior to seeking judicial involvement regarding the same. Of
course, it further follows that a defendant may withhold its consent only on a good
faith basis.
Norton-Griffiths v. Wells Fargo Home Mortg., No 5:10-cv-169, 2011 WL 884456, at *5 (D. Vt.
Mar. 11, 2011). Indeed, had Taylor sought Defendants’ consent before moving to file supplemental
pleadings, the parties may have had opportunity to clear up an ambiguity the Court presently faces:
6
whether Taylor merely wishes to supplement her Complaint with attachments (Docs. 14-1, 14-2) or
if she intends to file a supplemental pleading. Defendants express concern that they cannot raise
defenses to the supplemental pleadings with specificity until Taylor files proposed supplemental
pleadings. (Doc. 13, at 3 n.1.)
If Taylor wishes to file an actual supplemental pleading beyond the attachments, she must
first seek Defendants’ consent, as required by Local Rule 7(a)(7). See Norton-Griffiths, 2011 WL
884456, at *5 (extending deadline for plaintiffs to seek defendant’s consent to file an amended
complaint). Nonetheless, the Court will consider the state court filings attached to Taylor’s Motions
for Leave to File Supplemental Pleadings in resolving the Motion to Dismiss. See Blue Tree Hotels
Inv. (Canada), Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004)
(a court may take judicial notice of public records, including state court filings, in deciding a motion
to dismiss).
The Court finds it will not prejudice Defendants’ rights to consider these additional materials
supporting Taylor’s status as administratrix. At this point Defendants have thoroughly stated their
arguments concerning Taylor’s administratrix status. See Docs. 7, 10, 13, 21. The attachments, and
presumably any additional forthcoming pleading, merely support what Taylor has already pleaded:
that she is “the administratrix and sole legal representative of the estate of her son.” (Compl. ¶ 3.)
If Taylor ultimately seeks leave to file supplemental pleadings and those pleadings go beyond the
scope of establishing Taylor’s status as administratrix, Defendants may seek leave of the Court to
assert new defenses. See 1 Motions in Fed. Court § 5:240 (3d ed.) (if “a pleading is merely
supplemented, no new counterclaims or affirmative defenses are permitted unless they are in
response to the portions of the pleading that are supplemented”).
7
2.
Standing As Administratrix
Defendants argue that Counts I, II, III, IV, and V which are all survival claims brought by
Taylor on behalf of Mason’s estate, should be dismissed because Taylor was not the administratrix
of the estate at the time she filed the Complaint and therefore did not have standing when she sued.2
See Dutil v. Mayette, 395 F. Supp. 922 (D. Vt.), aff’d 517 F.2d 936 (2d Cir. 1975) (dismissing a
wrongful death action when plaintiff failed to obtain administratrix status in Vermont); Weinstein,
358 F. Supp. at 299 (“Since the plaintiff must respond to the orders of the state court having
jurisdiction to determine the beneficiaries and decree the proceeds, she is without capacity to
maintain the present action until she has authority to proceed by way of ancillary letters of
administration.”). In her briefing, Taylor first explains she will regain administratrix status and
asserts standing is proper, see Doc. 8, at 2-4, and later announces she has obtained administratrix
status with retroactive effect, see Doc. 14.
Although cases brought by a purported administratrix who has not met the requirements of
Vermont law have been dismissed, see e.g., Weinstein, 358 F. Supp. 297, courts have generally
allowed cases to proceed when a plaintiff can establish administratrix status after filing her
complaint. See, e.g., Porter v. Dartmouth Coll., 678 F. Supp. 2d 15 (D.N.H. 2010) (finding parents
have standing to maintain their wrongful death suit when they filed within the statute of limitations
but were not appointed administrators of their daughter’s estate until after the limitations period);
Wozniak v. United States, 701 F. Supp. 259, 261 (D. Mass. 1988) (plaintiff “satisfies the
administratrix requirement . . . in that her later appointment as an administratrix ‘related back’ to her
prior actions on behalf of the estate”). In Dutil and Weinstein, where courts in this district
2
Taylor’s federal civil rights claims are survival claims. See Murray v. Connetquot Cent. Sch.
Dist. of Islip, 54 F. App’x 18, at *2 (2d Cir. 2002) (“A § 1983 claim survives death if applicable state
law creates a right of survival.”) (citations and quotations omitted).
8
dismissed claims brought by individuals who had not acquired administratrix status under Vermont
law, the plaintiffs unsuccessfully argued their adminstratrix status in other jurisdictions was
sufficient. Here, Taylor sought to establish her status as administratrix under Vermont law,
ultimately with success. Accordingly, the Court finds Taylor has standing to proceed with her
action, and the Motion to Dismiss is denied to the extent it seeks dismissal based on standing.3
3.
Statute of Limitations
Defendants also argue that even if Taylor now has standing as administratrix, the two-year
statute of limitations expired on June 20, 2014.4 (Doc. 21.) This argument is not distinguishable
from the argument that Taylor lacked standing at the time she filed her Complaint and fails for
similar reasons. Courts have found claims by plaintiffs who only obtain administratrix status after
the statute of limitations has expired relate back to a timely complaint. See, e.g., Davis v. Piper
Aircraft Corp., 615 F.2d 606 (4th Cir.), cert. denied, 448 U.S. 911 (1980) (granting leave to amend a
complaint when plaintiff’s appointment as administrator occurred after the applicable statute of
limitations had run); Richardson v. Reinforced Plastic Co., 33 Fed. R. Serv. 2d 445, at *2
3
Defendants also argue that Count VI, a claim for loss of consortium Taylor brought in her
personal capacity, should be subsequently dismissed under 28 U.S.C. § 1367(c)(3) because it is a state
law claim this Court lacks subject matter jurisdiction to hear unless it is pendent to federal claims.
See Brzak v. United Nations, 597 F.3d 107, 113-14 (2d Cir. 2010) (stating “if a plaintiff’s federal
claims are dismissed before trial, the state claims should be dismissed as well”) (quotations omitted).
Because the survival claims, which include federal claims, are not dismissed, the Court has
supplemental jurisdiction over the related claim in Count VI.
4
Vermont has a two-year statute of limitations for wrongful death actions, running from the
“discovery of the death of the person.” 14 V.S.A. § 1492(a). Vermont also has a two-year statute of
limitations for survival actions, running from the date of the appointment of the administrator of the
estate. See 12 V.S.A. § 557(a); see also Estate of Harris v. Eichel, 152 Vt. 180, 182 (1988)
(interpreting 12 V.S.A. § 557(a) to provide a “two-year post-appointment limitations period”).
Mason died on June 20, 2012 and Taylor was first appointed administratrix on August 9, 2012; the
Probate Court reappointed Taylor administratrix on November 3, 2014, more than two years after
both Mason’s death and her initial appointment.
9
(D. Me. 1982) (declining to dismiss plaintiff’s claim based on the statute of limitations when she
obtained administratrix status after the statute expired because the claim related back to the timely
commencement of the action); Kiley v. Lubelsky, 315 F. Supp. 1025, 1028 (D.S.C. 1970) (“In a great
majority of the cases . . . it has been held that such an appointment [as administratrix] made after the
statute [of limitations] has run against a claim will relate back to validate actions taken on the claim
within the statutory period by the person subsequently appointed administrator thus barring reliance
upon the defense of limitations by the party against whom the claim is asserted on behalf of the
estate.”). Accordingly, the statute of limitations does not bar Taylor’s claims, and the Motion to
Dismiss is denied to the extent it seeks dismissal based on the statute of limitations.
C.
ADA Claims (Counts II and III)
In Counts II and III Taylor alleges all Defendants violated Mason’s rights under § 504 of the
Rehabilitation Act and Title II of the Americans with Disabilities Act (“ADA”), both in their
individual capacities and as state officials.
Title II of the ADA provides that “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the services, programs,
or activities of a public entity, or be subject to discrimination by any such entity.” 42 U.S.C. § 12132
(1990). Because the language in § 504 of the Rehabilitation Act, 29 U.S.C. § 794, is substantially
similar, the same analysis applies to those claims. See Hargrave v. Vermont, 340 F.3d 27, 35 (2d Cir.
2003). Neither of these statutes provides for actions against state officials in their individual
capacities. See Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir. 2001).
Thus, the Motion to Dismiss Counts II and III against Defendants in their individual capacities is
granted. Taylor only states ADA claims against Defendants in their official capacities.
10
To prove an ADA claim a plaintiff must establish “(1) that he is a ‘qualified individual’ with
a disability; (2) that he was excluded from participation in a public entity’s services, programs, or
activities or was otherwise discriminated against by a public entity; and (3) that such exclusion or
discrimination was due to his disability.” Hargrave, 340 F.3d at 34-35. These requirements apply to
claims under § 504 as well. See id. at 35. Defendants argue the ADA was inapplicable to Mason’s
arrest.
Claims stemming from a police arrest fit oddly into the ADA framework because it is not
readily clear a police encounter qualifies as a “program, service or activity.” See Ryan v. Vt. State
Police, 667 F. Supp. 2d 378, 386 (D. Vt. 2009). Courts have, however, recognized two types of
ADA claims in the context of a police encounter: (1) a “wrongful arrest claim,” in which police
arrest a suspect based on his disability rather than any criminal activity; and (2) a claim alleging
“failure to provide reasonable accommodations,” where police execute a proper arrest but “fail to
reasonably accommodate [a plaintiff’s] disability during the investigation or arrest, causing him to
suffer greater injury or indignity than other arrestees.” Id. at 387.
Taylor’s ADA claim appears to fall into the latter category. She alleges VSP “failed to accept
and act upon [Davidonis’] request for reasonable accommodations” when they refused to leave the
area outside her home. (Compl. ¶ 141.) Defendants argue the ADA required the VSP to “provide
arrestees who are disabled with reasonable accommodations once an arrest of a disabled person had
been accomplished,” and therefore did not require the VSP provide reasonable accommodations to
Mason before he was arrested. Valanzuolo v. City of New Haven, 972 F. Supp. 2d 263, 273-74 (D.
Conn. 2013) (emphasis added) (citing Ryan, 667 F. Supp. 2d at 389). In addressing a police officer’s
use of deadly force against a mentally disturbed man approaching the officer with a knife, the Fifth
Circuit found “[o]nce the area was secure and there was no threat to human safety, the [defendants]
11
would have been under a duty to reasonably accommodate [plaintiff’s] disability in handling and
transporting him to a mental health facility.” Hainze v. Richards, 207 F.3d 795, 802 (5th Cir. 2000);
see also De Boise v. Taser Int’l, Inc., 760 F.3d 892, 899 (8th Cir. 2014) (ADA did not apply to an
arrest of a man with schizophrenia because “[d]ue to the unexpected and rapidly evolving
circumstances, the officers were not required to hesitate and consider other possible actions in the
course of making such split-second decisions”) (quotations and citation omitted); Buchanan v.
Maine, 469 F.3d 158, 178 n.13 (1st Cir. 2006) (“It is questionable whether the ADA was intended to
impose any requirements on police entering a residence to take someone into protective or other
custody beyond the reasonableness requirement of the Fourth Amendment.”).
Taylor argues the exigency present in Hainze did not exist when Shaffer deployed a taser
against Mason. (Doc. 11, at 4.) Hainze explains courts should consider whether the police had (1)
secured the scene and (2) ensured there was no threat to human life. See id. If the scene was not
secure or there was a threat to human life, it is likely Shaffer’s use of force was reasonable. See, e.g.,
Salinas v. City of New Braunfels, 557 F. Supp. 2d 771, 775 (W.D. Tex. 2006) (“Hainze stands for the
limited proposition that an on-the-street police response to a disturbance involving a mentally or
physically disabled suspect does not fall within the ambit of Title II prior to the officer’s securing of
the scene and ensuring that there is no threat to human life.”). This is because “where the incident
presents an immediate danger because the individual is armed and charging at police” or “the police
have no information regarding the potential danger to others who may be present where a call has
been made because of a ‘tense situation’ . . . then no reasonable accommodation of a disability may
be required or possible.” Wingard v. Pa. State Police, No. Civ. A. 12 1500, 2013 WL 3551109, at *6
(W.D. Pa. July 11, 2013) (internal citation omitted); see also Anthony v. City of New York, No. 00civ-4688, 2001 WL 741743, at *11 (S.D.N.Y. July 2, 2001), aff’d 339 F.3d 129 (2d Cir. 2003)
12
(adopting Fourth Amendment reasonableness analysis as the test to determine whether police
violated the ADA in making an arrest). If a jury were to find, however, “the situation had been
defused sufficiently” at the time Shaffer deployed his taser against Mason, then the Hainze
exception to the ADA does not apply and the use of force may have been unreasonable. Sheehan v.
City & Cnty. of San Francisco, 743 F.3d 1211, 1233 (9th Cir.), cert. granted sub nom. City & Cnty.
of San Francisco, Cal. v. Sheehan, 135 S. Ct. 702 (2014).
In Sheehan, plaintiff stopped taking medication and threatened her social worker, who then
called the police. See id. at 1215. When the police arrived to take her into custody, she grabbed a
knife and threatened to kill them. The officers retreated to the hallway for safety and called for
backup, but then reentered plaintiff’s room before backup had arrived. When plaintiff again
threatened them, the police shot her. See id. at 1216. Plaintiff sued, raising an ADA claim based on
a failure to accommodate her disability. The court explained plaintiff bore “the initial burden of
producing evidence of the existence of a reasonable accommodation,” and she met that burden at
the motion to dismiss stage by asserting “the officers should have respected her comfort zone,
engaged in non-threatening communications and used the passage of time to defuse the situation
rather than precipitating a deadly confrontation.” Id. at 1233. The Ninth Circuit declined to uphold
the district court’s dismissal of plaintiff’s claim, “acknowledg[ing] that the officers were forced to
make split-second decisions” but concluding a jury “could find that the situation had been defused
sufficiently, following the initial retreat from Sheehan’s room, to afford the officers an opportunity
to wait for backup and to employ less confrontational tactics, including the accommodations that
[plaintiff] asserts were necessary.” Id.
On the pleadings, the Defendants’ encounter with Mason resembles the encounter in
Sheehan. Taylor alleges the Defendants knew of Mason’s disability (Compl. ¶ 138), the Defendants
13
could have accommodated that disability by granting Davidonis’ request to “leave him to his own
devices” (Id. at ¶ 141), the scene was secure (Id. at ¶¶ 60-61), and there was no threat to human life
because Mason did not have a weapon (Id. at ¶ 88). Furthermore, Taylor alleges facts suggesting
any exigency Shaffer faced arose only after VSP had secured the perimeter. (Id. ¶¶ 76-82.) Under
these facts, a jury could find Shaffer faced no exigency when he approached Mason, he knew of
Mason’s disability, he could reasonably accommodate Mason’s disability by leaving him be, and he
failed to accommodate Mason’s disability. See, e.g., Morais v. City of Philadelphia, No. 06 Civ. A.
582, 2007 WL 853811, at *12 (E.D. Pa. Mar. 19, 2007) (denying motion for summary judgment on
ADA claims when “the exigency of the situation is a materially disputed fact”); Salinas, 557 F. Supp.
2d 771 (denying a motion to dismiss when deaf plaintiff alleged the scene was secure, she posed no
threat to officer safety, and she had requested and been denied an interpreter).
Accordingly, the Motion to Dismiss Counts II and III against Defendants in their official
capacities is denied.
D.
Eleventh Amendment Sovereign Immunity for Official Capacity Claims (Counts I,
IV, V, VI, and VII)
“[T]he Eleventh Amendment bars suits seeking damages in federal court by private citizens
against a state, its agencies, or its officials unless the state has waived its immunity or Congress has
properly abrogated that immunity.” Thompson v. Pallito, 949 F. Supp. 2d 558, 571 (D. Vt. 2013).
Vermont has not waived sovereign immunity under § 1983, see 12 V.S.A. § 5601(g), and therefore
“Vermont state officials cannot be subject to suit in their official capacities for retrospective relief,
such as money damages, under § 1983.” Id. at 572. The Eleventh Amendment bars Counts I, IV,
V, VI, and VII to the extent those claims are brought against Defendants in their official capacities.
14
The Court dismisses those claims to that extent under Fed. R. Civ. P. 12(b)(1).5 See Woodman v.
State Police (St. Johnsbury), No. 1:12-cv-43, 2012 WL 5409662, at *2 (D. Vt. Nov. 6, 2012) (finding
the VSP protected by sovereign immunity and dismissing claims against it).
E.
Common Law Individual Capacity Claims Against L’Esperance and Flynn (Count V)
In Count V, Taylor asserts VSP Commander L’Esperance and VSP Commissioner Flynn
“were grossly negligent in their hiring, training and retention of Shaffer” and “in their issuing
Defendant Shaffer the Taser weapon used to kill Mason given that Shaffer had not been trained in
interacting with persons experiencing mental crises.” (Compl. ¶¶ 154-55.) In the Motion to
Dismiss, Defendants construe Count V to raise federal constitutional claims and argue § 1983
requires dismissal because the Complaint does not allege personal involvement by L’Esperance and
Flynn. (Doc. 7, at 13-14.) Taylor, however, frames Count V as containing pendent state common
law negligence claims against L’Esperance and Flynn in their individual capacities. See Doc. 8, at 89. Thus, Defendants’ § 1983 arguments are inapposite, and the Court denies the Motion to Dismiss
Count V against L’Esperance and Flynn in their individual capacities.6
5
Counts II and III, Taylor’s claims under the ADA discussed above in Part C, are not
dismissed based on Eleventh Amendment sovereign immunity even though those claims are
brought against Defendants in their official capacities. Although “courts normally consider
Eleventh Amendment issues before the merits, in the ADA context, an examination of the merits is
the first step of the Eleventh Amendment analysis.” Elbert v. N.Y.S. Dep’t of Corr., 751 F. Supp.
2d 590, 596 n.5 (S.D.N.Y. 2010) (citing United States v. Georgia, 546 U.S. 151, 159 (2006)). This is
because Defendants’ sovereign immunity under Title II depends on the facts, as “sovereign
immunity will be abrogated under Title II when a plaintiff can demonstrate an actual Fourteenth
Amendment violation.” Hilton v. Wright, 928 F. Supp. 2d 530, 556 (N.D.N.Y. 2013) (rejecting
sovereign immunity defense without prejudice when it cannot be determined as a matter of law that
a Fourteenth Amendment violation did not occur). Section 504, however, abrogates sovereign
immunity as a matter of law. See id. (finding “it is well-established that sovereign immunity has
been validly abrogated under Section 504"). Defendants have not raised Eleventh Amendment
sovereign immunity as a defense to the Title II claim at this time. (Doc. 10, at 7.)
6
To the extent Count V could be construed as raising claims under § 1983, it is dismissed
due to Taylor’s failure to plead “personal involvement” of defendants in alleged constitutional
15
IV.
Conclusion
Taylor’s Motions for Leave to File Supplemental Pleadings (Docs. 11, 14) are GRANTED.
Defendants’ Motion to Dismiss (Doc. 7) is GRANTED in part and DENIED in part. The
Motion to Dismiss is GRANTED as to claims against Defendants in their official capacities as
enumerated in Counts I, IV, V, VI, and VII, and as to claims against Defendants in their individual
capacities as to Counts II and III. The Motion to Dismiss is DENIED as to Counts I, IV, V, VI,
and VII against Defendant Shaffer in his individual capacity; as to Counts IV, V, and VI against
Defendant Zorn in his individual capacity; as to Counts V and VI against Defendants L’Esperance
and Flynn in their individual capacities; and as to Counts II and III against Defendants in their
official capacities.
Dated at Brattleboro, in the District of Vermont, this 10th day of February, 2015.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge
deprivations. Moffitt v. Town of Brookfield, 950 F.2d 880, 886 (2d Cir. 1991). The Complaint does
not plead sufficient facts to show either that L’Esperance or Flynn “knew or should have known of
a problematic pattern of employee actions,” Raspardo v. Carlone, 770 F.3d 97, 117 (2d Cir. 2014),
or that L’Esperance or Flynn was on notice of any prior unconstitutional conduct by Shaffer, see
Kucera v. Tkac, No. 5:12-cv-264, 2013 WL 1414441, at *7 (D. Vt. Apr. 8, 2013). Although it is
somewhat odd to permit common law negligence actions against the police where a § 1983 claim
would be denied, the unavailability of a § 1983 claim does not preclude liability for common law
negligence. See Alexander v. D.C., No. 95-1400, 1997 WL 51717, at *3 n.2 (D.D.C. Feb. 6, 1997).
16
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?