Sanborn et al v. Jennings et al

Filing 49

MEMORANDUM OPINION AND ORDER denying 42 Motion to Reconsider and/or Alter Judgment. Signed by Judge William K. Sessions III on 10/22/2013. (jam)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT

CEDRIC SANBORN and
LESLIE SANBORN,
Plaintiffs,
v.
WILLIAM JENNINGS and the
CITY OF MONTPELIER,
Defendants.

:
:
:
:
:
:
:
:
:
:
:

No.

2:12-cv-00228-wks

MEMORANDUM OPINION AND ORDER
This suit arose out of Cedric and Leslie Sanborn’s arrests
and citations for unlawful trespass by Officer William Jennings
of the Montpelier Police Department for kayaking on Berlin Pond
in the Town of Berlin.

The Sanborns brought claims against the

City of Montpelier and Officer Jennings in his individual and
official capacities claiming that no legal basis existed for the
arrests and citations.

On August 8, 2013, the Court granted

Defendant Jennings’s Motion for Summary Judgment on qualified
immunity grounds.

The Sanborns filed a Motion to Reconsider

and/or Alter Judgment (“Motion to Reconsider”) on the basis that
the court failed to address their request for further discovery
and that disputed facts precluded a finding of summary judgment.
For the reasons described below, the Court denies the Sanborns’
Motion to Reconsider.

DISCUSSION
The Court’s August 8, 3012 Opinion and Order (“Opinion”)
set forth a detailed version of the facts of this case, which
need not be repeated here.

The Court found that Officer

Jennings was entitled to summary judgment for all claims based
on qualified immunity.
In their Motion to Reconsider, the Sanborns argue that
genuine disputed issues of material fact existed that require
the Court to reconsider its decision to grant summary judgment.
They contend that the Court did not address the disputed facts
set forth in their Rule 56(a) Statement.

In their Motion to

Reconsider, the Sanborns present numerous facts that the Court
assumes represent those facts they believe are in dispute and
preclude summary judgment.
It is well settled that “[t]he standard for granting a
motion to reconsider is strict, and reconsideration will
generally be denied unless the moving party can point to
controlling decisions or data that the court overlooked—matters,
in other words, that might reasonably be expected to alter the
conclusion reached by the court.” Shrader v. CSX Transp., Inc.,
70 F.3d 255, 257 (2d Cir .1995). “[A] motion to reconsider
should not be granted where the moving party seeks solely to
relitigate an issue already decided.” Id. “[A] party may move for
reconsideration and obtain relief only when the defendant
2

identifies ‘an intervening change of controlling law, the
availability of new evidence, or the need to correct a clear
error or prevent manifest injustice.’”

Kolel Beth Yechiel

Mechil of Tartikov, Inc. v. YLL Irrevocable Trust, 2013 WL
4609100, *8 (2d Cir. 2013) (quoting Virgin Alt. Airways, Ltd. V.
Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir. 1992)).
The Sanborns present a list of allegedly disputed facts.
They assert that Berlin Pond was owned and managed by the State
of Vermont at the time of their arrests and citations and that
Montpelier failed to investigate or acknowledge that fact.

They

argue that the Montpelier Police Department could not have
relied on the 1926 State Health Order for their authority over
the Pond because officers, including Officer Jennings, were
unaware of the Order’s existence.

The Sanborns also claim that

the Court wrongly concluded that the record held no evidence
suggesting that Officer Jennings was aware of either the
Washington County State’s Attorney’s Office’s decision not to
prosecute the Barnett case—involving a related trespassing
arrest—or the decision’s impact on future prosecutions for
trespass on Berlin Pond.

As evidence of Jennings’s knowledge,

the Sanborns refer the Court to a communication between Officer
Jennings and Chief Facos about their case and the depositions of
the officers.

The Sanborns also discuss Chief Facos’s

involvement in the Barnett case and his investigations into the
3

ownership of Berlin Pond.

They allege that “all individuals

within the [Montpelier Police] [D]epartment” knew about Chief
Facos’s discussions with the State’s Attorney’s Office about the
status of Berlin Pond.

Mot. to Reconsider 8, ECF No. 42.

Finally, the Sanborns state that although Jennings believed that
Montpelier owned and controlled Berlin Pond, his belief was
based on an inexcusable ignorance of the law and a failure to
investigate.
The Sanborns also claim that the Court failed to consider
their Rule 56(d) request to conduct further discovery.

The

request cited unfair restrictions on the discovery process based
on Defendants’ allegedly inconsistent factual representations, a
limit on depositions, and claims of attorney-client privilege.
The Sanborns argue that they should have been able to pursue
discovery to clarify Jennings’s allegedly inconsistent
statements regarding the 1926 Health Order and a rumor that
during his time as Police Chief of the Town of Berlin Jennings
believed that Montpelier did not have the right to regulate
Berlin Pond.

The Sanborns also allege that the Court failed to

address their objections to Jennings’s attorney’s assertions of
the attorney-client privilege.

Specifically, they allege that

Chief Facos was instructed during his depositions not to answer
certain questions due to attorney-client privilege, but later
Jennings used that same information to obtain summary judgment.
4

In the Sanborns’ Motion to Reconsider, they cite neither
controlling decisions nor facts that the Court overlooked that
could reasonably be expected to alter the conclusion reached by
the Court.

Rather, the Sanborns simply reassert their claims of

existing disputed facts in an attempt to relitigate the issues
that the Court decided in its order granting summary judgment.
Because the Sanborns did not meet the standard for
reconsideration, the motion is denied.
Assuming the Sanborns had met the standard for a motion to
reconsider, the Court would reach the same conclusion.

The

Court’s summary judgment decision rested on the finding that
Officer Jennings did not violate a clearly established right
held by the Sanborns, and even if he did, that he acted on the
objectively reasonable belief that the Sanborns violated the law
by kayaking on Berlin Pond.

Therefore, Officer Jennings was

entitled to qualified immunity.

The Court also found that

Jennings was immune from the common law negligence claim because
he was not required to investigate further the Sanborns’ claims
that they were lawfully present on the Pond.

The alleged

factual disputes do not support a contrary conclusion.
The Opinion addressed the allegedly disputed facts.

The

Court recognized that the City of Montpelier regulated the use
of Berlin Pond even though it owned only lands surrounding the
Pond and not the Pond itself.

Op. 2.
5

The validity of

Montpelier’s regulations remained part of an on-going dispute
until a 2012 decision by the Vermont Supreme Court.

Op. 8–9.

Regarding the 1926 Board of Health order which led to the
dispute about regulating the Pond, the Court acknowledged the
order in its Opinion, but did not indicate that Jennings
specifically relied on it.

Op. 4, 8–9.

It is undisputed that Officer Jennings acted pursuant to
the City of Montpelier’s regulations creating a duty to patrol
the Pond, and at that time no court had decided that the law did
not support that policy.

Op. 8–9.

Based on the state of the

law, Officer Jennings made a reasonable decision to arrest and
cite the Sanborns.

Op. 9.

As a result, any further discovery

regarding Jennings’s reliance on the 1926 Health Order would not
reveal disputed facts material to the summary judgment decision.
The Sanborns themselves admit that “[t]he 1926 State Health
Order issue is irrelevant to this matter.”

Mot. to Reconsider

4.
To be regarded as true for a summary judgment
consideration, factual disputes must be backed by affidavits or
other evidence.
Cir. 1992).

See Cartier v. Lussier, 955 F.2d 841, 845 (2d

The Sanborns argue that Officer Jennings was aware

of the State’s Attorney’s decision concerning the Barnett case
and its impact on future prosecutions for trespassing on Berlin
Pond.

They offer no evidence to support their assertion.
6

Both

officers stated under oath that they could not remember
specifically discussing the State’s Attorney’s Office’s
treatment of the Barnett case prior to the Sanborns’ arrests and
citations. Jennings Dep. 18, 42–43, 67, ECF No. 29-4; Facos Dep.
86–88, 107, ECF No. 29-6.

The Sanborns speculate that Jennings

knew about the controversy over Berlin Pond, but Officer
Jennings testified that he had “no recollection” of hearing
about Chief Facos having problems with the State’s Attorney’s
Office prosecuting the Barnett case.
29-4.

Jennings Dep. 18, ECF No.

Although testimony indicates that officers in the

department were aware of the Barnett case, the record held no
evidence that Chief Facos discussed the position of the State’s
Attorney’s Office with Jennings.
The Sanborns argue that a fax to Jennings from the State’s
Attorney’s Office is evidence of Officer Jennings’s knowledge.
See ECF No. 36-9.

Although the fax is not dated, the subject

line indicates that it relates to Cedric Sanborn and the body of
the fax discusses the possible prosecution of the ordinance
violation and unlawful trespass charge.

Id.

A note affixed to

the fax states that the City Attorney agrees and “has a Plan B”
and that there would be more to come.

Id.

The Sanborns imply

that if a “Plan B” was discussed, then a “Plan A” must have been
also, and that “more to come” meant that there were other
discussions about Berlin Pond.

Mot. to Reconsider 5–6.
7

They

provide no evidence to support the idea that a “Plan A,” or any
other related matter, had been discussed prior to their arrests
and citations.

The signature on the note is not clear, though

the Sanborns claim that it belongs to Chief Facos.

Pl.’s

Response to Def.’s Local Rule 56A Statement of Undisputed
Material Facts 19.

Regardless of who wrote the note, the fax

was clearly written after the Sanborns’ arrests and citations
and included no evidence indicating that Officer Jennings had
prior knowledge of the Berlin Pond issue.

The Court

specifically found that no evidence suggested that Jennings was
aware of the State’s Attorney’s Office’s decision regarding the
Barnett case.

Op. 3.

Other allegedly disputed facts regarding

Chief Facos’s investigation into the status of Berlin Pond are
irrelevant because he did not communicate his findings to
Officer Jennings.

Facos Dep. 107, ECF No. 29-6.

Concerning Officer Jennings’s allegedly negligent failure
to investigate, the Court found that Jennings had the discretion
not to investigate further or to assess the credibility of the
Sanborns’ unverified claims that they were legally present on
Berlin Pond.

Op. 9–10.

Law enforcement officers are not

required to research the legal validity of regulations they are
called upon to enforce.

Officer Jennings performed a

discretionary duty within the scope of his employment and was
entitled to qualified immunity from the negligence claims.
8

Op.

10.

Therefore, the Sanborns’ arguments about disputed facts

regarding Jennings’s lack of investigation are irrelevant.
The Sanborns failed to follow the procedure required by
Rule 56(d) of the Federal Rules of Civil Procedure for further
discovery.

The Rule requires that a litigant submit an

affidavit that includes “the nature of the uncompleted
discovery; how the facts sought are reasonably expected to
create a genuine issue of material fact; what efforts the
affiant has made to obtain those facts; and why those efforts
were unsuccessful.”

Paddington Partners v. Bouchard, 34 F.3d

1132, 1138 (2d Cir. 1994).

The Sanborns provided some of the

required information within their Memorandum in Opposition to
the summary judgment motion, but failed to submit an affidavit
supporting their Rule 56(d) request.
Even if the Sanborns had properly submitted their request,
it would still have been denied.

As noted above, the Sanborns’

request for further discovery about Jennings’s reliance on the
1926 Health Order would have no impact on the summary judgment
decision.

The Sanborns also objected to Defendants claiming

attorney-client privilege for communications with the City
Attorney’s office and refusing to allow deposition of certain
individuals.

The Sanborns, however, failed to follow the

appropriate procedure for discovery disputes and did not move to
compel the requested information.
9

The communications between

opposing counsel provided by the Sanborns show that the
attorney-client privilege issue has been disputed since midMarch 2013, giving the Sanborns plenty of time to file such a
motion.

Mem. in Opp’n to Def. Jennings’ Mot. for Summ. J., Ex.

18, ECF. No. 37-2.

The Sanborns provided the Court with no

basis for granting relief, so their request for further
discovery was properly denied.

CONCLUSION
For the aforementioned reasons, the Court denies Cedric and
Leslie Sanborn’s Motion to Reconsider and/or Alter Judgment.
Dated at Burlington, in the District of Vermont, this 22nd
day of October, 2013.

/s/William K. Sessions III
William K. Sessions III
U.S. District Court Judge

10