Simuro et al v. Shedd et al

Filing 166

OPINION AND ORDER granting the Town of Windsor's 122 Motion for Judgment on the Pleadings; granting in part and denying in part defendant Shedd's 141 Motion for Summary Judgment; denying as moot the Town of Windsor's 142 Motion for Summary Judgment. Signed by Judge William K. Sessions III on 3/31/2016. (law)

UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

ERNEST SIMURO, & ERNEST SIMURO
On behalf of K.S., a minor,
Plaintiffs,
v.
LINDA SHEDD, TOWN OF WINDSOR,
& DOES I through X
Defendants.

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Case No. 2:13-cv-30

Opinion and Order
Plaintiffs Ernest Simuro and Simuro on behalf of his
grandson, K.S., bring the present action against Defendants
Linda Shedd, a former sergeant of the Windsor Police Department,
the Town of Windsor, and Does I through X.1

In their amended

complaint, Plaintiffs assert a number of claims pursuant to
42 U.S.C. § 1983 and Vermont state law.

The claims arise out of

Simuro’s arrest and prosecution based on allegations that he
sexually assaulted his daughter and K.S., and the resulting
seizure of K.S. by the Vermont Department for Children and
Families.
Currently pending before the Court are (1) Defendant Town
of Windsor’s motion for judgment on the pleadings; (2) Defendant

1

On September 4, 2015, the Court granted Plaintiffs’ unopposed motion to
dismiss all claims against Defendants Erin Keefe and Janet Melke, social
workers employed by the Vermont Department for Children and Families. See
ECF No. 145.

Town of Windsor’s motion for summary judgment; and (3) Defendant
Shedd’s motion for summary judgment.

For the reasons set forth

below, the Court grants the Town of Windsor’s motion for
judgment on the pleadings, and grants in part and denies in part
Shedd’s motion for summary judgment.

Because the Town of

Windsor is dismissed from this case, the Court denies as moot
its motion for summary judgment.
BACKGROUND
I.

The Undisputed Facts
Ernest Simuro has two children, Debra and Steven, whom he

raised with his late wife Laureen in and around Windsor,
Vermont.

Debra was born in 1985, and Steven was born in 1983.

In 2003, at the age of 17, Debra gave birth to a son, K.S.
Debra developed a drug dependency prior to her pregnancy, and
K.S. was born with heroin in his system.

From birth, K.S. lived

with his grandparents, while Debra moved in and out of the
family home.

In 2004, when K.S. was roughly 18 months old, the

Probate Court for the District of Windsor appointed Simuro and
Laureen as K.S.’s co-guardians.

Laureen later passed away from

cancer in September 2007.
In February 2008, while residing at the Valley Vista
Alcohol and Chemical Dependency Inpatient Treatment Center,
Debra made claims to both the Windsor Police Department and the
Vermont Department for Children and Families (“DCF”) that Simuro
2

had sexually abused her since she was a child.

Debra further

alleged that Simuro was K.S.’s biological father and that K.S.
had told her that Simuro was physically abusive with him.
Windsor Police Sergeant Linda Shedd responded to Debra’s
allegations of child abuse by visiting Simuro’s home and
speaking with K.S.

K.S. denied that Simuro had hurt him, and

Shedd did not discover any physical evidence of abuse.

In

addition, Windsor Police Sergeant Phil Call investigated Debra’s
claims of her own sexual abuse.

Call interviewed Debra and

indicated in a written report that she recanted her accusations.2
Over the next two years, as Simuro cared for K.S., Debra
continued to move in and out of the family home.

In October

2010, however, after discovering that someone had stolen K.S.’s
ADHD medication, Simuro ordered Debra and her then-husband
Michael Pitts to leave the house.

Debra was eight months

pregnant at the time, and Simuro reported the incident to DCF.
Due to a prior police report expressing concern that Debra was
using illegal drugs during her pregnancy, DCF had already opened
a case on Debra.

DCF social worker Erin Keefe had been assigned

to that case.
On October 18, 2010, Keefe met with Debra at the motel
where Debra was staying.

During their conversation, Debra told

Keefe that Simuro had sexually abused her throughout her

2

A DNA test conducted in 2011 confirmed that Simuro is not K.S.’s biological
father.

3

childhood.

Debra also alleged that Simuro had sexually

assaulted K.S. and showed Keefe a video that she had taken of
K.S. approximately a year and a half earlier.

The video shows

K.S. playing in the bathtub while Debra asks him a series of
questions.

Their conversation proceeds as follows:

Debra: You’re recording.
K.S.: I’m recording?
Debra: Yup. Hey buddy, what were you talking about
earlier about penis in your butt?
K.S.: There’s a penis in my butt.
Debra: There’s a penis in your butt?
K.S.: Yup.
Debra: Did Grandpa stick his penis in your butt?
K.S.: Uh-huh. My name is Charlie. See you later.
(Unintelligible). Bye. Bye bye.
Debra: No, [K.S.], Mommy’s serious--did Grandpa stick
anything in your butt?
K.S.: Uh-yeah.
Debra: Yes?
K.S.: My penis.
Debra: What?
K.S.: My penis.
K.S.: He stuck his penis in your butt?
Debra: Yeah.
ECF No. 155-15, Video #1.

K.S. laughs throughout the video.

The following day, on October 19, 2010, Keefe filed a
report with DCF.

In her report, Keefe indicated that “Debbie is

concerned that [K.S.] is living with [Simuro],” and that
“Debbie . . . also stated that she had been sexually abused by
her father from the time she was young until she was 18.”
No. 155-67 at 2.

ECF

With respect to the bathtub video, Keefe wrote

that “Mom said ‘I want you to tell me [K.S.] what you just said
a minute ago.’

[K.S.] said ‘granpa puts his penis in my butt.’”
4

ECF No. 155-67 at 2.

The report did not include any other

commentary regarding the video.

Keefe then contacted the

Windsor Police Department and gave Shedd a copy of her report.
Shedd was assigned to handle the case.
That afternoon, Keefe and Shedd each spoke with K.S. in two
successive interviews.

During Keefe’s interview with K.S.,

which Shedd watched on a closed-circuit video in another room,
K.S. indicated that he felt safe at home with Simuro and that no
one had touched him anywhere that made him feel unsafe.
No. 155-20.

See ECF

K.S. further stated that Simuro did not give him

any bad touches other than “a spank . . . when [he’s] bad.”

ECF

No. 155-20 at 12.
Next, during his interview with Shedd, K.S. again indicated
that he felt safe at home, and he replied negatively to the
question of whether anyone ever touched him in the “area where
the bathing suit covers.”

ECF No. 155-21 at 2.

Shedd later

gave K.S. a stuffed animal and asked K.S. to “show me what kind
of touching people touch you like.”

ECF No. 155-21 at 6.

K.S.

responded, “Boing . . . like Grandpa . . . unpants my pants,
then he goes ‘psst,’” while making a slapping motion against the
animal’s rear.

ECF No. 155-21 at 6.

K.S. proceeded to clarify

that Simuro pokes his thumb “on the bum” and not in the bum, and
“on top” of his clothes and not under his clothes.
21 at 6-7.

Finally, K.S. stated that Simuro pokes him on the
5

ECF No. 155-

bum when he gets in trouble, and that nothing ever goes in his
bum.

ECF No. 155-21 at 7.
Later that day, Shedd met with Simuro at the Windsor Police

Department.

During an hour-long interrogation in which Shedd

told Simuro that “we have [K.S] on videotape telling us that you
put your penis inside his butt,” Simuro repeatedly denied that
he had ever touched K.S. in an inappropriate manner.
155-23 at 12.

ECF No.

Simuro acknowledged that he used his hands to

bathe K.S., and he admitted that “it might be a little strange”
that he typically washed K.S. in the evenings despite the fact
that K.S. frequently wet the bed.

ECF No. 155-23 at 11.

Simuro

went on to state, however, that with respect to bathing K.S., he
has “never thought of it as sexual.”

ECF No. 155-23 at 20.

In

addition, Simuro agreed to take a lie detector test, permit a
medical examination of K.S., consent to a search of his home
computers, and take a DNA test to prove that he was not K.S.’s
biological father.
At the conclusion of the interrogation, Shedd advised
Simuro that he was being placed under arrest for sexual assault
on a child and lewd and lascivious conduct with a child.3

Shedd

3

The parties disagree as to whether Shedd called Debra to speak about the
bathtub video prior to informing Simuro that he was under arrest. According
to Shedd’s affidavit, she contacted Debra after completing her interrogation
of Simuro, but before issuing Simuro a citation. Shedd’s affidavit indicates
that Debra confirmed that she filmed the bathtub video in response to K.S.’s
disclosure that “grampa puts his penis in my butt.” ECF No. 160-14 at 4.
Simuro disputes that Shedd spoke with Debra prior to his arrest. In support

6

informed Simuro that he was no longer free to leave, and issued
a citation requiring him to appear in court the next day.
Simuro was then released on his own recognizance.

As a

condition of his release, Simuro was prohibited from leaving
Windsor County without the court’s permission.

He was further

prohibited from contacting K.S. or any other individual under
the age of 18.
Later that night, Shedd drafted a probable cause affidavit
in support of Simuro’s prosecution.

In the affidavit, Shedd

notes that “Keefe states that she has . . . viewed the tape in
which KS tells his mother ‘Grandpa put his penis in my butt.’”
ECF No. 160-14 at 1.

Shedd then briefly describes Keefe’s

interview with K.S., and proceeds to characterize her own
interaction with K.S. as follows:
I then return to KS with a Mother Goose stuffed
animal. KS immediately takes the goose from me and
begins to look under her dress. He then pulls down
the stuffed animals [sic] undergarments as he states
that ‘grampa pulls my pants down’ and then KS takes
his hand and extends his thumb and shoves it into the
backside of the goose as he tells me that ‘grampa
pokes me in the butt with his thumb.’ KS is very
clear that Simuro pulls his pants down often and then
pokes him in the butt as he demonstrates on the
stuffed animal. Soon after making that disclosure, KS
states that he is done talking and wants to leave the
interview room.
ECF No. 160-14 at 2.

The affidavit concludes with summaries of

Shedd’s interrogation of Simuro and her alleged telephone call

of his position, Simuro cites Keefe’s deposition, in which she states that
she does not recall Shedd making the call. ECF No. 155-10 at 114.

7

with Debra.

When finished, Shedd submitted the affidavit to the

State’s Attorney’s Office, and on October 20, 2010, the State
charged Simuro with lewd and lascivious conduct in violation of
13 V.S.A. § 2602, as well as sex assault on a minor in violation
of 13 V.S.A. § 3252(d).
Several days later, Keefe prepared an affidavit in support
of a CHINS4 petition seeking to place K.S. in the legal custody
of DCF.

Simuro had moved out of his house to allow K.S. to

continue living in the home with his uncle, Steven, and Keefe
now asserted that Steven was an inappropriate caregiver.

In

support of her position, Keefe stated that Steven “states a lack
of belief that his father Ernest is a sexual abuser,” and “is
preventing any contact between [K.S.] and his mother.”
155-72 at 4.

ECF No.

Keefe also expressed concern that she had no

assurance that Steven would prevent Simuro from contacting K.S.
Keefe attached Shedd’s probable cause affidavit to her petition,
which the State’s Attorney’s Office filed on October 24, 2010.
The following day, the family court granted the State’s request,
and K.S. was placed in foster care for nearly a month before DCF
permitted him to resume living with Steven.
On December 19, 2010, as Simuro’s charges related to K.S.
were pending, Shedd met with Debra, who again indicated that
Simuro had physically and sexually abused her throughout her

4

CHINS stands for “Child in Need of Care or Supervision.”

8

childhood.

During her interview, Debra claimed that Simuro beat

her “whenever he was in a bad mood.
Sometimes more.”

Sometimes once a week.

ECF No. 155-6 at 1.

She further stated that

Simuro raped her “at least once a month” from the time that she
was 12 years old until her husband moved into the home.
155-6 at 2-3.

ECF No.

Debra reiterated her allegation that Simuro may

be K.S.’s biological father, and stated that she had
communicated Simuro’s abuse to her ex-boyfriend Benjamin Harper
and his mother, Dawn.
Over the next ten days, Shedd spoke with Benjamin, Dawn,
and Nicole Boucher, an employee of Valley Vista.

Each of them

stated that Debra had made allegations in the past about her
father’s abusive behavior.

According to Shedd, Benjamin stated

that he did not report the accusations previously because he did
not believe them to be true until Simuro was charged with
sexually assaulting K.S.
On June 3, 2011, Shedd issued Simuro a citation for
sexually assaulting Debra and for violating his conditions of
release.

Shedd’s affidavit in support of the sex assault charge

indicates that probable cause arose from her conversations with
Debra, Benjamin, Dawn, and Boucher.

As grounds for the COR

violation, the affidavit notes that one of Simuro’s conditions
of release provided that he “must not be charged with or have
probable cause found for a new offense while this case is open.”
9

ECF No 160-38 at 5.

In addition, Simuro allegedly left Windsor

County without permission and breached the condition prohibiting
him from contacting minors.

The State subsequently charged

Simuro with one count of violating his conditions of release and
four counts of sexual assault on Debra.
Together with his attorney, Simuro challenged both the
criminal charges brought against him and the DCF decision to
substantiate the allegations that he had sexually abused K.S.
At Simuro’s request, DCF reviewed the bathtub video, the
recorded interviews with K.S. and Simuro, and several other
relevant documents, and concluded that it was “not appropriate
for [Simuro’s] name to be placed on the Vermont Child Protection
Registry.”

ECF No. 155-68 at 4.

The State’s Attorney’s Office

also determined that Shedd’s recitation of her conversation with
K.S. was misleading, and it did not oppose Simuro’s motion to
dismiss the charges relating to K.S.
that motion on August 9, 2011.

The criminal court granted

Several months later, on

November 14, 2011, the State dismissed all remaining charges.
In February 2012, DCF permitted Simuro and K.S. to regain
contact.

Debra and Michael Pitts subsequently relinquished

their parental rights, and on July 31, 2012, Simuro adopted K.S.
II.

Plaintiffs’ Claims and the Pending Motions
In their amended complaint, Plaintiffs assert fourteen

separate counts against Shedd, Keefe, Janet Melke, and the Town
10

of Windsor.

Because the Court has granted Plaintiffs’ unopposed

motion to dismiss all claims against Keefe and Melke, see ECF
No. 145, twelve counts against Shedd and the Town of Windsor
remain.
In Count I, Simuro asserts that Shedd violated 42 U.S.C.
§ 1983 by initiating his false arrest and malicious prosecution
on the charges related to K.S.

Count II similarly alleges that

Shedd violated 42 U.S.C. § 1983 by initiating Simuro’s false
arrest and malicious prosecution on the charges related to
Debra.

Counts III, V, and VI5 all relate to Simuro’s separation

from K.S.

In Counts III and VI, respectively, Simuro and Simuro

on behalf of K.S. assert that Shedd violated 42 U.S.C. § 1983 by
depriving them of their rights to familial association.

In

Count V, Simuro on behalf of K.S. alleges that Shedd breached
42 U.S.C. § 1983 by causing K.S. to be unlawfully seized by DCF.
As to the remaining causes of action, Simuro brings Counts
VII through XIII6 against Shedd and the Town of Windsor pursuant
to Vermont law.

Specifically, Simuro asserts claims of false

arrest (Count VII), malicious prosecution (Count VIII), and
gross negligence (Count IX)7 based on the charges related to K.S.

5

Count IV has been dismissed as it was brought solely against Keefe and
Melke. See ECF No. 74 at 25.
6
Count XIV has also been dismissed because it was brought against only Keefe.
See ECF No. 74 at 34.  
7
In its July 23, 2013 Order, the Court dismissed Count IX as it pertains to
Shedd. The claim is currently brought against only the Town of Windsor. See
ECF No. 29.

11

Simuro also alleges claims of false arrest (Count X), malicious
prosecution (Count XI), and gross negligence (Count XII)8 based
on the charges related to Debra.

Finally, in Count XIII, Simuro

asserts a claim of intentional infliction of emotional distress.
There are presently three motions pending before the Court.
The Court begins by addressing the Town of Windsor’s motion for
judgment on the pleadings.

Because that motion is granted, the

Town of Windsor’s motion for summary judgment is denied as moot.
The Court next considers Shedd’s motion for summary judgment.
DISCUSSION
I.

Defendant Town of Windsor’s Motion for Judgment on the
Pleadings (ECF No. 122)
A. Legal Standard
In assessing a motion for judgment on the pleadings

pursuant to Federal Rule of Civil Procedure 12(c), courts apply
the same legal standard applicable to motions to dismiss under
Rule 12(b)(6).

Altman v. J.C. Christensen & Assocs., Inc., 786

F.3d 191, 193 (2d Cir. 2015).

Thus, in order to survive a Rule

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

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (internal quotation omitted); see also Johnson v. Rowley,
569 F.3d 40, 44 (2d Cir. 2009).

A claim is facially plausible

8

The Court also dismissed Count XII as it pertains Shedd in its July 23, 2013
Order. Thus, that claim as well is brought against only the Town of Windsor.
See ECF No. 29.

12

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

Iqbal, 556 U.S. at 678 (internal

citation omitted).
B. Municipal Immunity
In its motion for judgment on the pleadings, the Town of
Windsor acknowledges that there are two means by which a
plaintiff may endeavor to hold a municipality liable for a tort
allegedly committed by its employee.

First, a plaintiff may

rely on the common law doctrine of respondeat superior.

Second,

a plaintiff may invoke a statute such as 24 V.S.A. § 901a.

The

Town of Windsor first directs its attention toward the doctrine
of respondeat superior, arguing that municipal immunity bars
Simuro from advancing his claims against the Town pursuant to
such a theory.
“Under 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.”

Doe v. Forrest, 853 A.2d 48, 54

(Vt. 2004) (internal quotation omitted).

Here, as the Court has

previously acknowledged, the parties do not dispute that “Shedd
was acting within her authority as a law enforcement officer
regarding the conduct asserted in the complaint.”
6.

Indeed, “[c]onducting an investigation, making an arrest,
13

ECF No. 29 at

and participating in a prosecution are all duties within the
scope of a law enforcement officer’s authority.”

Id.; see also

Long v. L’Esperance, 701 A.2d 1048, 1052 (Vt. 1997) (holding
that police officer who made wrongful arrest was “acting within
the scope of his authority”).
Where a municipality faces suit under a theory of
respondeat superior, however, Vermont law has long provided that
municipal immunity may serve as a shield to liability.

See

Morway v. Trombly, 789 A.2d 965, 968 (Vt. 2001) (recognizing
that “[m]unicipal immunity is a common-law doctrine dating back
to the mid-1800s in Vermont”); see also Decker v. Fish, 126 F.
Supp. 2d 342, 346 (D. Vt. 2000) (finding municipality immune
from state law claims brought under the doctrine of respondeat
superior).

“Municipal immunity protects municipalities from

tort liability in cases where the municipality fulfills a
governmental rather than a proprietary function.”

Sobel v. City

of Rutland, 60 A.3d 625, 630 (Vt. 2012) (internal quotation
omitted).

The rationale for distinguishing between those two

functions is that “municipalities perform governmental
responsibilities for the general public as instrumentalities of
the state,” whereas “they conduct proprietary activities only
for the benefit of the municipality and its residents.”
Hillerby v. Town of Colchester, 706 A.2d 446, 447 (Vt. 1997).

14

Although the distinction between governmental and
proprietary functions has been criticized as difficult to apply,
see, e.g., Clain v. City of Burlington, 202 F.2d 532, 533 (2d
Cir. 1953), courts in Vermont have repeatedly found police work
to be a governmental function.

See, e.g., Franklin Cnty.

Sheriff’s Office v. St. Albans City Police Dep’t, 58 A.3d 207,
214 (Vt. 2012) (“[T]he provision of police services in Vermont
occurs outside the realm of commerce because it involves no
interchange of goods or commodities on the open market.

It is a

government function provided only by governmental entities for
the benefit of the public.”); Carty’s Adm’r v. Vill. of
Winooski, 62 A. 45, 46 (Vt. 1905) (“One of the powers of
government inherent in every sovereignty is the governing and
regulating of its internal police. . . . [T]his power may be
delegated by a state to municipal corporations, to be exercised
within their corporate limits; but, whether the power be so
delegated or otherwise, it is a governmental function, founded
upon the duty of the state to protect the public safety, the
public health, and the public morals.”); see also Kucera v.
Tkac, 2013 WL 1414441, at *11 (D. Vt. Apr. 8, 2013) (“Courts in
Vermont have consistently found that police work is a
governmental function.”); Decker, 126 F. Supp. 2d at 346
(“[T]here can be little question that police work is a
quintessential governmental function.”).
15

Accordingly, to the

extent that Simuro brings his claims against the Town of Windsor
under the theory of respondeat superior, such claims are barred
by the doctrine of municipal immunity.9
C. Section 901a
Beyond the doctrine of respondeat superior, 24 V.S.A.
§ 901a provides an additional legal avenue through which a
municipality may be held liable for the torts of its employees.
Pursuant to Section 901a,
(b) When the act or omission of a municipal employee
acting within the scope of employment is alleged to
have caused damage to property, injury to persons, or
death, the exclusive right of action shall lie against
the municipality that employed the employee at the
time of the act or omission; and no such action may be
maintained against the municipal employee or the
estate of the municipal employee.
(c) When a municipality assumes the place of a
municipal employee in an action as provided in
subsection (b) of this section, the municipality may
assert all defenses available to the municipal
employee, and the municipality shall waive any defense
not available to the municipal employee, including
municipal sovereign immunity.

9

In his response brief, Simuro argues that municipal immunity does not shield
the Town of Windsor from liability for his state constitutional claims. He
cites In re Town Highway No. 20, 45 A.3d 54 (Vt. 2012) in support of his
position. In In re Town Highway No. 20, the Vermont Supreme Court determined
that the Common Benefits Clause in Article 7 of the Vermont Constitution
provides a self-executing private right of action, and that litigants may
recover monetary relief for such a claim. 45 A.3d at 78. The court further
held that, under the circumstances of that case, the Town could not maintain
a municipal immunity defense in light of its violation of the plaintiff’s
Article 7 rights. Id. at 76. Because the holding In re Town Highway No. 20
was limited to Article 7 violations, and because there are alternative
remedies to meaningfully compensate Simuro’s injuries, see id. at 67-71, the
Court declines to extend the logic of In re Town Highway No. 20 to the claims
presented in this case.

16

The protection afforded to municipal employees under Section
901a(b) does not extend “to an act or omission . . . that was
willful, intentional, or outside the scope of the employee’s
authority.”

24 V.S.A. § 901a(e).

As noted above, the parties do not dispute that Shedd was
acting within the scope of her authority as a law enforcement
officer when she engaged in the conduct at issue.

The parties

do dispute, however, whether her actions were “willful” or
“intentional” within the meaning of 24 V.S.A. § 901a(e).
With respect to Simuro’s claims of gross negligence, the
Court has previously ruled that “gross negligence ‘falls short
of being such reckless disregard of probable consequences as is
equivalent to a wil[l]ful or intentional wrong.’”

ECF No. 29 at

6-7 (quoting Shaw v. Moore, 162 A. 373, 374 (Vt. 1932)).
Accordingly, because Section 901a requires willful or
intentional conduct to hold a municipal employee individually
liable, Shedd’s claims of gross negligence “must be brought
exclusively against the Town of Windsor.”

ECF No. 29 at 8.

Section 901a(c) precludes the Town of Windsor from raising a
municipal immunity defense to those claims.
Regarding Simuro’s remaining claims against the Town,
however, Section 901a does not afford Shedd similar protection,
for false arrest, malicious prosecution, and intentional
infliction of emotional distress are all properly classified as
17

intentional torts.

As the Town of Windsor notes, “[w]here the

meaning of a statute is plain, there is no necessity for
construction and the court is required to enforce the statute
according to its express terms.

Moreover, there is a

presumption that the ordinary meaning of the statutory language
was intended by the legislature.”

State v. Hull, 143 Vt. 353,

354 (Vt. 1983).
Here, there is no doubt that claims of false arrest,
malicious prosecution, and intentional infliction of emotional
distress all require a showing of an intentional or willful act.
See Connary v. Field, No. 2012-276, slip op. at 3 (Vt. 2013)
(“false arrest requires showing that defendant intended to
confine plaintiff without plaintiff’s consent, and that
confinement was not otherwise privileged”); Anello v. Vinci, 458
A.2d 1117, 1119 (Vt. 1983) (“[t]o recover for malicious
prosecution the claimant must establish that the person against
whom the claim is asserted instituted the proceeding against him
(1) without probable cause, (2) with malice, and that (3) the
proceeding terminated in claimant’s favor”); Sheltra v. Smith,
392 A.2d 431, 433 (Vt. 1978) (holding that IIED claim requires
proof of “outrageous conduct, done intentionally or with
reckless disregard of the probability of causing emotional
distress, resulting in the suffering of extreme emotional
distress, actually or proximately caused by the outrageous
18

conduct.”).

In addition, contrary to Simuro’s assertion, there

is no language in the statute suggesting that Section 901a
contemplates a “darker” mental state than is typically
associated with willful or intentional actions.

Thus, because

Section 901a(e) plainly excludes “willful” and “intentional”
acts from the scope of the statute’s mandate, the Town of
Windsor does not assume Shedd’s place in Simuro’s claims for
false arrest, malicious prosecution, and intentional infliction
of emotional distress under Section 901a(b).

See Shatney v.

LaPorte, No. 5:12-cv-23, slip op. at 23 (D. Vt. Nov. 7, 2014)
(“Section 901a also does not protect [defendant police officers]
from plaintiffs’ remaining state-law claims against them-malicious prosecution and intentional infliction of emotional
distress--because these are intentional torts.

Such claims must

be brought against the individual defendants.”).

The Town of

Windsor is therefore shielded from liability by the doctrine of
municipal immunity, and Simuro may pursue those claims against
Defendant Shedd alone.10

Accordingly, the Court grants the Town

10

Simuro makes an additional argument that the Town of Windsor may be liable
for Shedd’s intentional torts pursuant to 24 V.S.A. § 901. Section 901
provides that actions brought against “any appointed or elected municipal
officer” shall be brought against the municipality, and that “[t]he
municipality shall assume all reasonable legal fees incurred by an officer
when the officer was acting in the performance of his duties and did not act
with any malicious intent.” Even assuming that Shedd is an appointed
municipal officer within the meaning of the statute, however, Section 901
does not provide for the waiver of municipal immunity. Thus, to the extent
that the Town of Windsor faces liability for Shedd’s actions pursuant to
Section 901, municipal immunity prevents any claims from moving forward under
such a theory.

19

of Windsor’s motion for judgment on the pleadings with respect
to Counts VII, VIII, X, XI, and XIII of the amended complaint.
D. Gross Negligence Claims
Lastly, the Town of Windsor asserts that it is entitled to
judgment on the pleadings on Simuro’s claims of gross negligence
because Shedd did not owe Simuro a legally enforceable duty of
care under the circumstances of this case.
Pursuant to Vermont law, a claim of negligence requires a
showing that the defendant owed the plaintiff a legal duty, that
the defendant breached that duty, that the breach was the
proximate cause of the plaintiff’s injury, and that the
plaintiff suffered actual loss or damage.
A.2d 336, 340 (Vt. 2008).

Endres v. Endres, 968

“Duty, the first element, is central

to a negligence claim, and its existence is primarily a question
of law.”

Id.

As plaintiff, Simuro bears the burden of

establishing the duty’s existence.

See Iqbal, 556 U.S. at 678

(holding that although courts must accept all of a complaint’s
factual allegations as true, this tenet “is inapplicable to
legal conclusions,” and thus, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).
Here, Simuro argues that Shedd had “duties to arrest Mr.
Simuro only upon probable cause, and to conduct proper
investigations.”

ECF No. 134 at 19-20.
20

Simuro cites no

authority recognizing the existence of such duties in the
context of Vermont state tort law, however, and instead points
solely to the prohibition against unreasonable seizures
expressed in the Fourth Amendment to the U.S. Constitution and
Article 11 of the Vermont Constitution.

In addition, of those

jurisdictions that have addressed the question at bar, the Court
is unaware of a single case holding that such legal duties
exist.

See, e.g., Pourny v. Maui Police Dep’t, 127 F. Supp. 2d

1129, 1146 (D. Haw. 2000) (holding that plaintiff’s negligence
claim fails as a matter of law because “[t]here is no ‘duty’ to
not arrest without probable cause.”); Smith v. State, 324 N.W.2d
299, 300 (Iowa 1982) (declining to recognize “an independent
tort for negligent investigation of crime by law enforcement
officers.”); Boose v. City of Rochester, 421 N.Y.S.2d 740, 744
(N.Y. App. Div. 1979) (rejecting plaintiff’s negligence claim
even though she had presented a prima facie case that her arrest
was unsupported by probable cause on the grounds that “she must
proceed by way of the traditional remedies of false arrest and
imprisonment and malicious prosecution.”).
Because Vermont courts have yet to address the question of
whether law enforcement officers have legal duties to conduct
reasonable criminal investigations and effect arrests only upon
probable cause, and because courts in other jurisdictions have
rejected the existence of such duties, the Court declines to
21

find that those duties exist in the context of Vermont tort law.
Accordingly, the Court grants the Town of Windsor’s motion for
judgment on the pleadings with respect to Counts IX and XII of
the amended complaint.

The Town of Windsor is therefore

dismissed from this case, and its motion for summary judgment is
denied as moot.
II.

Shedd’s Motion for Summary Judgment (ECF No. 141)

A. Legal Standard
The Court turns next to Shedd’s motion for summary
judgment.

As is well known, summary judgment is appropriate “if

the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law.”

Fed. R. Civ. P. 56(a).

A genuine dispute of material

fact exists “if the evidence is such that a reasonable jury
could return a verdict for the nonmoving party.”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

Anderson v.
Accordingly,

when ruling on a motion for summary judgment, courts must
examine the evidence in the light most favorable to the
nonmoving party, Sheppard v. Beerman, 317 F.3d 351, 354 (2d Cir.
2003), and “resolve all ambiguities and draw all permissible
inferences in favor of the party against whom summary judgment
is sought,” Sec. Ins. Co. of Hartford v. Old Dominion Freight
Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).

22

Although the moving party bears the burden of establishing
the absence of any genuine issue of material fact, Anderson, 477
U.S. at 256, in defending against a motion for summary judgment,
the nonmoving party may not rely on “mere conclusory
allegations, speculation or conjecture,” Cifarelli v. Village of
Babylon, 93 F.3d 47, 51 (2d Cir. 1996).

Rather, the nonmoving

party “must do more than simply show that there is some
metaphysical doubt as to the material facts,” Matsushita Elec.
Indus. Co., Ltd. V. Zenith Radio Corp., 475 U.S. 574, 586
(1986), and must “make a showing sufficient to establish the
existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial,”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In deciding a motion for summary judgment, the trial
court’s function “is not to weigh the evidence or resolve issues
of fact, but to decide instead whether, after resolving all
ambiguities and drawing all inferences in favor of the nonmoving party, a rational juror could find in favor of that
party.”

Pinto v. Allstate Ins. Co., 221 F.3d 394, 398 (2d Cir.

2000).

23

B. Simuro’s False Arrest and Malicious Prosecution Claims
Based on the Charges Related to K.S.
Shedd first moves for summary judgment on Simuro’s
42 U.S.C. § 1983 and Vermont state law claims of false arrest
and malicious prosecution based on the charges related to K.S.
An action for false arrest brought under § 1983 requires a
plaintiff to show that “(1) the defendant intended to confine
him, (2) the plaintiff was conscious of the confinement, (3) the
plaintiff did not consent to the confinement and (4) the
confinement was not otherwise privileged.”

Ackerson v. City of

White Plains, 702 F.3d 15, 19 (2d Cir. 2012).

A false arrest

action is substantially the same under Vermont state law, which
necessitates proof that the “defendant intended to confine
plaintiff without plaintiff’s consent, and that confinement was
not otherwise privileged.”

Connary v. Field, No. 2012-276, slip

op. at 3 (Vt. 2013) (citing Ackerson, 702 F.3d at 19).

As to a

claim for malicious prosecution, such an action brought pursuant
to § 1983 is governed by state law.
33, 36 (2d Cir. 1995).

Russell v. Smith, 68 F.3d

Vermont law provides that a plaintiff

filing suit for malicious prosecution must establish that the
defendant “instituted the proceeding against him (1) without
probable cause, (2) with malice, and that (3) the proceeding
terminated in claimant’s favor.”
1117, 1119 (Vt. 1983).

24

Anello v. Vinci, 458 A.2d

In her motion for summary judgment, Shedd asserts that the
undisputed facts establish that there was probable cause to
arrest and prosecute Simuro for both lewd and lascivious conduct
and sexual assault of K.S.

Consequently, she submits that

Simuro’s claims must fail as a matter of law.

In addition,

Shedd maintains that Simuro was not subject to a custodial
arrest; that his criminal suits did not terminate in his favor;
and that the state’s attorney independently decided to prosecute
Simuro.

The Court will address each of those arguments in turn.

1. Whether Probable Cause Existed to Arrest and Charge
Simuro
“The existence of probable cause to arrest constitutes
justification and is a complete defense to an action for false
arrest, whether that action is brought under state law or under
§ 1983.”

Gonzalez v. City of Schenectady, 728 F.3d 149, 155 (2d

Cir. 2013) (internal quotation omitted); see also Kent v. Katz,
327 F. Supp. 2d 302, 306 (D. Vt. 2004), aff’d, 125 F. App’x 334
(2d Cir. 2005) (ruling that both a federal and a state claim for
false arrest “must fail if there was probable cause for the
arrest”).

“Given that a lack of probable cause is a necessary

element for malicious prosecution,” the existence of probable
cause is a complete defense to a claim of malicious prosecution
as well.

Lay v. Pettengill, 38 A.3d 1139, 1151 (Vt. 2011).

25

Under both state and federal law, “[p]robable cause exists
when the facts and circumstances known to an officer are
sufficient to lead a reasonable person to believe that a crime
was committed and that the suspect committed it.”

State v.

Chicoine, 928 A.2d 484, 487 (Vt. 2007); see also Brinegar v.
United States, 338 U.S. 160, 175-76 (1949).
Accordingly, a court considering a summary judgment
motion in a false-arrest or malicious-prosecution case
must construe in favor of the non-moving party any
factual disputes regarding what circumstances were
known to the officer at the relevant time. After
that, however, the court must undertake a neutral,
legal analysis of whether those (assumed)
circumstances satisfy the probable cause standard. In
other words, the court should resolve in favor of the
non-moving party any disputes about what information
the officer knew, but it should neutrally determine
whether that information gave rise to probable cause.
An objectively reasonable police officer applying the
probable-cause standard would not automatically or
necessarily construe all available information in
favor of a particular individual, and neither should
the court.
Benn v. Kissane, 510 F. App’x 34, 37 (2d Cir. 2013) (internal
citation omitted).
Moreover, “under federal law, a police officer is entitled
to qualified immunity where (1) his conduct does not violate
clearly established statutory or constitutional rights of which
a reasonable person would have known, or (2) it was ‘objectively
reasonable’ for him to believe that his actions were lawful at
the time of the challenged act.”
478 F.3d 76, 87 (2d Cir. 2007).

Jenkins v. City of New York,
Because “the right to be free

26

from arrest without probable cause” was “clearly established” at
the time of Simuro’s arrest, Shedd is entitled to summary
judgment if her “probable cause determination was objectively
reasonable.”

Id.

“An officer’s determination is objectively

reasonable if there was ‘arguable’ probable cause at the time of
arrest,” id., which “exists if either (a) it was objectively
reasonable for the officer to believe that probable cause
existed, or (b) officers of reasonable competence could disagree
on whether the probable cause test was met,” Zalaski v. City of
Hartford, 723 F.3d 382, 390 (2d Cir. 2013) (internal quotation
omitted).

The same standard for qualified immunity exists under

Vermont state law.

See Stevens v. Stearns, 833 A.2d 835, 840

(Vt. 2003).
Here, with respect to his alleged abuse of K.S., Simuro was
arrested for and charged with lewd and lascivious conduct in
violation of 13 V.S.A. § 2602 and sex assault on a minor in
violation of 13 V.S.A. § 3252(d).

Under § 2602(a)(1), the law

prohibits individuals from “willfully and lewdly commit[ting]
any lewd or lascivious act upon or with the body, or any part or
member thereof, of a child under the age of 16 years, with the
intent of arousing, appealing to, or gratifying the lust,
passions, or sexual desires of such person or of such child.”
“The determination of whether an act is ‘lewd’ under § 2602
depends on the nature and quality of the contact, judged by
27

community standards of morality and decency in light of all the
surrounding circumstances, accompanied by the requisite,
specific lewd intent on the part of the defendant.”
Squiers, 896 A.2d 80, 85 (Vt. 2006).

State v.

Section 3252(d) prohibits

individuals from engaging “in a sexual act with a child who is
under the age of 18 and is entrusted to the actor’s care by
authority of law or is the actor’s child, grandchild, foster
child, adopted child, or stepchild.”
Construing the facts in favor of Simuro, as the Court must
on summary judgment, Shedd was aware of the following
circumstances when she arrested Simuro on the charges at issue.
On October 19, 2010, Shedd received a report from DCF social
worker Erin Keefe indicating that Debra was concerned about K.S.
living with Simuro.

The report stated that K.S. had a black eye

at some point in the past, and that Debra showed Keefe a video
recording in which K.S. told Debra “grandpa puts his penis in my
butt.”

ECF No. 155-67 at 2.

The report also provided that

Debra claimed that Simuro had repeatedly sexually abused her
throughout her childhood.
After viewing the report, Shedd arranged to interview K.S.
Shedd first watched on a closed-circuit video as K.S. spoke with
Keefe.

K.S. told Keefe that he felt safe at home with Simuro

and that no one had touched him anywhere that made him feel
unsafe.

K.S. also indicated that Simuro did not give him any
28

bad touches other than “a spank . . . when [he’s] bad.”
155-20 at 12.

Shedd then interviewed K.S. herself.

ECF No.

During the

conversation, K.S. again expressed that he felt safe at home,
and he replied negatively to the question of whether anyone ever
touched him in the “area where the bathing suit covers.”
No. 155-21 at 2.

ECF

Then, when given a stuffed animal and asked to

demonstrate how people touch him, K.S. stated, “Boing . . . like
Grandpa . . . unpants my pants, then he goes ‘psst,’” while
making a slapping motion against the animal’s rear.
155-21 at 6.

ECF No.

In response to Shedd’s follow-up questions, K.S.

clarified that Simuro pokes his thumb “on the bum” and not in
the bum, and “on top” of his clothes and not under his clothes.
ECF No. 155-21 at 6-7.

When asked whether “anything ever go[es]

in [his] bum,” K.S. twice replied “never.”

ECF No. 155-21 at 7.

Later that day, Shedd spoke with Simuro at the Windsor
Police Department.

During their conversation, Simuro repeatedly

denied that he had ever touched K.S. in an inappropriate manner.
Simuro acknowledged that he used his hands to bathe K.S., and he
recognized that “it might be a little strange” that he typically
washed K.S. in the evenings despite the fact that K.S.
frequently wet the bed.

ECF No. 155-23 at 11.

Simuro proceeded

to state, however, that with respect to bathing K.S., he had
“never thought of it as sexual.”

29

ECF No. 155-23 at 20.

At the

conclusion of the interrogation, Shedd arrested Simuro for lewd
and lascivious conduct and sexual assault on K.S.
In the Second Circuit, “[i]t is well-established that a law
enforcement official has probable cause to arrest if he received
his information from some person, normally the putative victim
or eyewitness, unless the circumstances raise doubt as to the
person’s veracity.”
Cir. 2006).

Panetta v. Crowley, 460 F.3d 388, 395 (2d

Here, Shedd’s determination of probable cause was

based solely on K.S.’s statements--those that Keefe, albeit
inaccurately, included in her DCF report, and those that K.S.
made in his interview with Shedd.

There was no physical

evidence of sexual abuse, there were no other witnesses, and
Shedd did not conduct any additional interviews with K.S.’s
doctors, therapists, teachers, or family members.11

Because

there were several circumstances that raised doubt as to K.S.’s
veracity, the Court finds that K.S.’s statements alone were
insufficient to establish probable cause as a matter of law.
First, K.S. was five years old at the time of the bathtub
video and seven years old when he spoke with Shedd.

As many

courts have recognized, police officers must exercise extreme

11

Shedd’s probable cause affidavit states that Debra told Shedd on the
telephone that K.S. told her that “grampa puts his penis in my butt.” ECF
No. 160-14 at 4. Simuro disputes that Shedd spoke with Debra prior to his
arrest, however, based on Keefe’s statement that she does not recall Shedd
making such a call. At the summary judgment stage, the Court must resolve
this ambiguity in favor of Simuro. See Sec. Ins. Co. of Hartford v. Old
Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir. 2004).

30

caution in crediting the statements of young children.

See,

e.g., United States v. Shaw, 464 F.3d 615, 624 (6th Cir. 2006)
(holding that a young child’s uncorroborated hearsay allegations
were too unreliable to form the basis for probable cause); Stoot
v. City of Everett, 582 F.3d 910, 920 (9th Cir. 2009) (“In cases
involving very young child victims, the courts have repeatedly
emphasized the need for some evidence in addition to the
statements of the victim to corroborate the allegations and
establish probable cause”); see also Diana Younts, Evaluating
and Admitting Expert Opinion Testimony in Child Sexual Abuse
Prosecutions, 41 Duke L.J. 691, 697 (1991) (“[S]tudies examining
children’s suggestibility have found children to be prone to
conforming their stories to the beliefs of the questioning
adult.”).

In fact, as the Sixth Circuit recently acknowledged,

“it appears that no federal court of appeals has ever found
probable cause based on a child’s allegations absent some other
evidence to corroborate the child’s story.”

Wesley v. Campbell,

779 F.3d 421, 430 (6th Cir. 2015).
Second, K.S. was medicated for ADHD, and the video
recording of his conversations with Keefe and Shedd makes clear
that he had difficulties concentrating on the topic of
discussion.

Shedd recognized as much in her probable cause

affidavit, writing that “KS is all over the room and appears to
have a short attention span as he goes from playing with the
31

toys in the room to drawing, to the window watching the
construction crews outside.”

ECF No. 160-14 at 1.

Third, K.S. made inconsistent statements regarding Simuro’s
abuse.

It is now clear that K.S. did not state in the bathtub

video that “granpa puts his penis in my butt.”
155-67 at 2, with ECF No. 155-15, Video #1.

Compare ECF No.

Nonetheless, Keefe

had written that statement in her report, and it was reasonable
for Shedd to rely on it during her investigation.

Even assuming

that Shedd attributed that statement to K.S., however, K.S. made
a number of contradictory remarks in his interviews with both
Keefe and Shedd.

K.S. indicated to Keefe that no one touched

him anywhere that made him feel unsafe, and that Simuro did not
give him any bad touches other than spanks.

Further, after

completing his demonstration with the stuffed animal in front of
Shedd, K.S. stated that Simuro touched him “on top” of his
clothes and not under the clothes, and “on the bum” and not in
the bum.

ECF No. 155-21 at 6-7.

K.S. made clear that nothing

ever went in his bum.
When taken together, those circumstances cast significant
doubt on the veracity of K.S.’s statements.

Accordingly, a

reasonable jury could find that such statements, without further
investigation and corroboration,12 provided an insufficient basis

12

Shedd claims that Debra’s allegation that Simuro had sexually assaulted her
throughout her childhood, which was present in Keefe’s DCF report, serves to
corroborate K.S.’s purported statements. Given that Shedd had previously

32

for Shedd to reasonably believe that Simuro had committed the
crimes of lewd and lascivious conduct13 and sexual assault on a
child.

See Stoot, 582 F.3d at 920 (holding that a child’s

statements alone were not sufficiently reliable to establish
probable cause).

The Court, therefore, cannot find that

probable cause existed as a matter of law.
In her motion, Shedd urges that she is entitled to summary
judgment simply because the state criminal court in which
Simuro’s cases were filed found that probable cause existed for
Simuro’s prosecutions.

Yet while “[t]he mere fact that a

criminal tribunal found probable cause normally provides a
presumption that probable cause existed,” that presumption “is
rebuttable . . . if a plaintiff can demonstrate that the earlier
finding of probable cause was based on misleading, fabricated,
or otherwise improper evidence.”
1139, 1147 (Vt. 2011).

Lay v. Pettengill, 38 A.3d

In other words, a litigant may

successfully challenge a trial court’s probable cause
determination by presenting “a plausible suggestion that the
finding of probable cause would not have been reached were it
not for some irregularity or impropriety.”

Id.

investigated false accusations made by Debra, however, that fact does not
adequately verify K.S.’s statements so as to establish probable cause as a
matter of law. Nor does the fact, also cited by Shedd, that Simuro bathed
K.S. at night despite K.S.’s tendency to wet the bed.
13
The Court recognizes Shedd’s argument that Simuro indicated that he helped
K.S. bathe by washing K.S.’s body with soap. Given the unreliability of
K.S.’s statements, however, a reasonable jury could find that there was
insufficient evidence that Simuro possessed the requisite lewd intent.

33

In the present case, the undisputed facts reveal that
Shedd’s arrest warrant contained several misstatements and
omissions that were material to the finding of probable cause.
First, when describing K.S.’s demonstration with the stuffed
animal, Shedd misquotes K.S. as stating “‘grampa pulls my pants
down’” and “‘grampa pokes me in the butt with his thumb.’”
No. 160-14 at 2.

ECF

Second, Shedd inaccurately describes K.S.’s

comments by writing that he “is very clear that Simuro pulls his
pants down often and then pokes him in the butt as he
demonstrates on the stuffed animal.”

ECF No. 160-14 at 2.

Third, Shedd makes no mention that, in response to her
questions, K.S. proceeded to clarify that Simuro touched him on
top of the clothes and on the butt, not under the clothes or in
the butt.

She also does not write that K.S. twice replied

“never” to her question of whether anything ever goes in his
butt.

Finally, Shedd omits K.S.’s indication that he felt safe

with Simuro and that no one ever touched him in anywhere that
made him feel unsafe.
Based on the misstatements and omissions in Shedd’s
affidavit, a reasonable jury could find that Shedd fabricated
evidence and misled the trial court in its probable cause
determination.

Accordingly, Plaintiffs have successfully

overcome the presumption expressed in Lay, as the undisputed
facts suggest that the trial court would not have reached its
34

finding of probable cause were it not for the inaccuracies of
Shedd’s affidavit.
Finally, the misstatements and omissions in Shedd’s
affidavit could also lead a reasonable jury to find that Shedd
lacked even arguable probable cause, thereby defeating Shedd’s
argument for qualified immunity.

As stated above, with all

inferences drawn in favor of Simuro, the undisputed facts could
allow a factfinder to conclude that Shedd intentionally omitted,
fabricated, and mischaracterized evidence in her probable cause
affidavit.

The Court has little trouble finding that such

action, if true, is not “objectively reasonable.”

See Jenkins

v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007).

Moreover,

viewed in the light most favorable to Simuro, the circumstances
raising doubt as to K.S.’s veracity would prevent officers of
reasonable competence from disagreeing as to whether probable
cause existed.

See Zalaski v. City of Hartford, 723 F.3d 382,

390 (2d Cir. 2013).

For those reasons, the Court finds that

Shedd is not entitled to qualified immunity at summary judgment.
See Golino v. City of New Haven, 950 F.2d 864, 871 (2d Cir.
1991) (“Where an officer knows, or has reason to know, that he
has materially misled a magistrate on the basis for a finding of
probable cause, as where a material omission is intended to
enhance the contents of the affidavit as support for a

35

conclusion of probable cause, the shield of qualified immunity
is lost.”).
2. Whether Simuro was Confined
Shedd next argues that even if arguable probable cause did
not exist, she remains entitled to summary judgment on Simuro’s
claims of false arrest because Simuro was not subjected to a
custodial arrest on the charges related to K.S.
It is well-established that an individual is seized within
the meaning of the Fourth Amendment “if, in view of all of the
circumstances surrounding the incident, a reasonable person
would have believed that he was not free to leave.”
States v. Mendenhall, 446 U.S. 544, 554 (1980).

United

The Second

Circuit has further explained that “when an officer even briefly
detains an individual and restrains that persons [sic] right to
walk away, he has effected a seizure and the limitations of the
Fourth Amendment become applicable.”

Posr v. Doherty, 944 F.2d

91, 97 (2d Cir. 1991) (internal quotations omitted).

Under

Vermont law, “to constitute an arrest, there must be some real
or pretended legal authority for taking the party into custody;
that he must be restrained of his liberty; that, if he submits,
and is within the power of the officer, it is sufficient without
an actual touching of his person.”
791 (Vt. 1904).

36

Goodell v. Tower, 58 A. 790,

Here, Shedd’s argument that her issuance of a citation did
not amount to an arrest is belied by her very own affidavit.
According to Shedd, at the conclusion of her interview with
Simuro, she “advised Simuro that he was being placed under
arrest for Sexual assault on KS and no longer free to leave.”
ECF No. 155-24 at 4.

Such a statement could allow a jury to

find that Simuro’s liberty was restrained, as it could have
undoubtedly caused a reasonable person to believe that, in fact,
he was not free to leave.

Accordingly, Shedd has failed to

establish that Simuro was not confined as a matter of law.
3. Whether Simuro’s Criminal Suits Terminated in his Favor
Shedd also contends that Simuro’s malicious prosecution
claims cannot proceed because Simuro’s prosecution on the
charges related to K.S. did not terminate in his favor.
In determining whether a prosecution terminated favorably
for the purpose of a malicious prosecution claim, both the
Second Circuit and the Vermont Supreme Court have adopted the
approach of the Restatement (Second) of Torts.

See Janetka v.

Dabe, 892 F.2d 187, 189-90 (2d Cir. 1989); Siliski v. Allstate
Ins. Co., 811 A.2d 148, 151 (Vt. 2002).

Pursuant to that

approach, “if the manner of termination, including dismissal,
reflects negatively on the merits of the case, it will be
considered favorable to the defendant.”
151.

By contrast, “if the reason for dismissal is not
37

Siliski, 811 A.2d at

inconsistent with a defendant’s wrongdoing, it will not be
considered a favorable termination.”

Id. at 152.

“If the

circumstances surrounding dismissal are ambiguous on this point,
the determination should be left for trial.”

Id.; see also

Janetka, 892 F.2d at 189 (“When a termination is indecisive
because it does not address the merits of the charge, the facts
surrounding the termination must be examined to determine
whether the failure to proceed implies a lack of reasonable
grounds for the prosecution.”).
In the present case, Simuro filed two motions to dismiss
the charges of lewd and lascivious conduct and sexual assault of
K.S.

The first, filed under Vermont Rule of Criminal Procedure

12(d)(1) on June 30, 2011, asserted that the State’s evidence
failed to establish a prima facie case.

ECF No. 155-32.

The

second, filed pursuant to the United States and Vermont
Constitutions and Vermont Rule of Criminal Procedure 7(b) on
July 1, 2011, argued that the State’s allegations were
impermissibly vague.

ECF No. 141-15.

The State did not oppose

either motion, and on August 9, 2011, the trial court granted
Simuro’s motions in an unwritten decision.

ECF No. 155-33.

In her deposition, Deputy State’s Attorney Martha Neary
asserted a privilege in response to the question of why her
office did not oppose Simuro’s motions to dismiss.
18 at 114-115.

Neary did provide, however, that Windsor County
38

ECF No. 155-

State’s Attorney Robert Sand had become involved in the case
because “there was concern about the state of the evidence in
the case and information that was contained in affidavits or
documentation.”

ECF No. 155-18 at 115.

Sand himself even

drafted a letter to the presiding criminal court judge,
indicating that “[t]he State based its charges on the officer’s
sworn affidavit and the representations contained therein.

It

is now evident to the State, having reviewed the recordings,
that the officer’s affidavit is misleading and that the
disclosure by KS to the officer did not support the filing of
sexual offenses.”

ECF No. 155-28 at 1.

At the very least, the undisputed facts create an ambiguity
as to whether the dismissal of Simuro’s charges reflected
negatively on the merits of his case.

Accordingly, summary

judgment is inappropriate, for such a determination must be
placed in the hands of a jury.
4. Whether the State’s Attorney Independently Decided to
Prosecute Simuro
Finally, Shedd submits that Simuro’s claims of malicious
prosecution based on the charges related to K.S. must fail
because Deputy State’s Attorney Neary exercised independent
judgment in deciding to file suit.
“[W]here [an] allegation of misconduct is directed at
police, a malicious-prosecution claim cannot stand if the

39

decision made by the prosecutor to bring criminal charges was
independent of any pressure exerted by police.”
Moore, 547 U.S. 250, 263 (2006).

Hartman v.

“In cases against police

officers, ‘plaintiffs have overcome the presumption that a
prosecutor exercises independent judgment in deciding whether to
initiate a criminal proceeding where they have shown that the
officer either (1) created false information and forwarded it to
prosecutors or (2) withheld relevant and material information.’”
Bailey v. City of New York, 79 F. Supp. 3d 424, 449 (E.D.N.Y.
2015) (quoting Breeden v. City of N.Y., 2014 WL 173249, at *10
(E.D.N.Y. Jan. 13, 2014)).
Here, as discussed previously, Simuro has presented
evidence demonstrating that Shedd misstated and omitted material
facts in the probable cause affidavit that she submitted to the
Windsor Police Department.

Deputy State’s Attorney Neary then

relied on Shedd’s affidavit in filing the lewd and lascivious
conduct and sexual assault charges against Simuro.

ECF No. 155-

18 at 173 (indicating that she based Simuro’s information on
“[t]he affidavit and . . . any other supporting documentation
that was provided from [Shedd].”).

Those facts are sufficient

to allow a jury to find that Shedd played an active role in
initiating Simuro’s prosecution.

See Ricciuti v. N.Y.C. Transit

Authority, 124 F.3d 123, 130 (2d Cir. 1997) (“[A] jury could
find that [the officer] played a role in initiating the
40

prosecution by preparing the alleged false confession and
forwarding it to prosecutors.”).

As a result, Shedd has failed

to show that she is entitled to judgment as a matter of law.
In sum, the Court holds that a jury could find in Simuro’s
favor on his false arrest and malicious prosecution claims based
on the charges related to K.S.

Accordingly, the Court denies

Shedd’s motion for summary judgment with respect to Counts I,
VII, and VIII.
C. Simuro’s False Arrest and Malicious Prosecution Claims
Based on his Alleged Sexual Assault on Debra and Violation
of Conditions of Release
Shedd next moves for summary judgment on Simuro’s false
arrest and malicious prosecution claims based on his alleged
sexual assault on Debra and violation of conditions of release.
Shedd again asserts that Simuro’s claims fail as a matter of law
because there was probable cause for his arrest and prosecution.
As explained above, “[p]robable cause exists when the facts
and circumstances known to an officer are sufficient to lead a
reasonable person to believe that a crime was committed and that
the suspect committed it.”

State v. Chicoine, 928 A.2d 484, 487

(Vt. 2007); see also Brinegar v. United States, 338 U.S. 160,
175-76 (1949).

In the Second Circuit, “a law enforcement

official has probable cause to arrest if he received his
information from some person, normally the putative victim or
eyewitness, unless the circumstances raise doubt as to the
41

person’s veracity.”

Panetta v. Crowley, 460 F.3d 388, 395 (2d

Cir. 2006).
In the instant action, as Simuro argues, several
circumstances may have led a reasonable police officer to doubt
the veracity of Debra’s allegations.

First, Debra had

previously made claims that Simuro had physically and sexually
abused her throughout her childhood, which she recanted when
questioned by an officer from the Windsor Police Department.
ECF No. 155-5.

Second, Debra had recently engaged in a dispute

with Simuro regarding her living arrangement, and she expressed
her frustration with her father during her interview with Shedd.
ECF No. 155-6 at 18 (“He’s living his perfectly happy life.
still has his family.
his son--whatever.

He

I’m sure he’s seeing [K.S.]–-talking to

And I have nothing.

I’m living in a hotel.

No money and I can’t even see my kid . . . it’s not fair.”); see
also Mistretta v. Prokesch, 5 F Supp. 2d 128, 133 (E.D.N.Y.)
(“The most common situation in which such doubts arise [about a
victim’s veracity] is when there exists a prior relationship
between the victim and the accused that gives rise to a motive
for a false accusation.

When such a relationship exists, and is

known to the arresting officer before the arrest is made, the
complaint alone may not constitute probable cause; the officer
may need to investigate further.”).

Third, Shedd had spoken

with Steven, Debra’s brother who grew up in the family home and
42

lived periodically as an adult with Debra and Simuro, and Steven
indicated that Debra’s claims were unreliable.

ECF No. 160-20

at 79; ECF No. 160-51 at 78.
At the same time, however, there are several reasons as to
why a reasonable police officer may have decided to credit
Debra’s accusations.

To begin, Shedd spoke with Benjamin

Harper, an ex-boyfriend of Debra, who informed her that Debra
had repeatedly told him that her father was sexually abusing
her.

Although Benjamin indicated that he initially doubted the

truth of Debra’s claims, he also noted that he had seen bruises
on Debra that she attributed to Simuro.

Moreover, Shedd spoke

with Dawn Harper, Benjamin’s mother, and Nicole Boucher, an
employee at Valley Vista.

Both Dawn and Boucher also stated

that Debra had disclosed her father’s abuse in the past.
Finally, while a reasonable officer could interpret the tension
between Debra and Simuro as a motive for Debra to make a false
accusation, it is similarly conceivable that Debra’s bitterness
arose from years of sexual abuse.

See Tabor v. New York City,

2013 WL 4775608, at *5 (E.D.N.Y. Sept. 6, 2013) (recognizing
that the complaining witness’s “admitted dislike of [the alleged
perpetrator] may have been the understandable result of unwanted
sexual advances.”).
On balance, given the circumstances casting doubt on
Debra’s veracity, the Court cannot conclude as a matter of law
43

that probable cause existed to arrest and prosecute Simuro for
sexual assault on Debra.

Nonetheless, there are sufficient

facts that weigh in favor of accepting Debra’s account such that
reasonable officers could disagree as to whether Debra was
credible.

As provided previously, “[e]ven where a reviewing

court . . . concludes that probable cause to arrest was lacking
in a given case, an officer will still be entitled to qualified
immunity if he can establish that there was arguable probable
cause to arrest.

Arguable probable cause exists if either (a)

it was objectively reasonable for the officer to believe that
probable cause existed, or (b) officers of reasonable competence
could disagree on whether the probable cause test was met.”
Zalaski v. City of Hartford, 723 F.3d 382, 390 (2d Cir. 2013)
(internal quotations omitted).

Here, because there was arguable

probable cause to arrest and prosecute Simuro for sexual assault
on Debra, Shedd is shielded from liability by the doctrine of
qualified immunity.14

Accordingly, the Court grants Shedd’s

motion for summary judgment with respect to Counts II, X, and
XI.

14

Based on the statements of multiple witnesses indicating that they had seen
Simuro outside of Windsor County, as well as Simuro’s own admission, the
Court similarly finds that, at the very least, there was arguable probable
cause to support Simuro’s arrest and prosecution for a violation of his
conditions of release. See ECF No. 160-29.

44

D. Plaintiffs’ Familial Association Claims and K.S.’s Unlawful
Seizure Claim
Shedd also moves for summary judgment on Plaintiffs’
familial association claims and the unlawful seizure claim
brought on behalf of K.S.

In the amended complaint, Simuro and

Simuro on behalf of K.S. bring claims pursuant to 42 U.S.C.
§ 1983 alleging that Shedd “negligently, intentionally and
recklessly” deprived Plaintiffs of their liberty interests in
remaining with their family “without coercive government
interference in violation of the Fourteenth Amendment of the
Constitution of the United States.”

ECF No. 74 at 24, 27.

Simuro on behalf of K.S. also asserts a § 1983 claim in which he
submits that Shedd “negligently, recklessly, intentionally, and
in bad faith deprived . . . K.S. of his right to be free of
unreasonable searches and seizures, as secured by the Fourth and
Fourteenth amendments, by causing the seizure of plaintiff K.S.,
and thereafter causing plaintiff K.S. to be held in DCF custody
despite the lack of probable cause or a reasonable basis.”
No. 74 at 26.

ECF

Shedd now argues that such claims cannot succeed

as a matter of law, as the separation of Simuro and K.S.
involved independent decisions by DCF and the family court.
1. K.S.’s Familial Association Claim
As an initial matter, Simuro’s familial association claim
brought on behalf of K.S. is not properly pleaded as a

45

substantive due process claim.

“Where another provision of the

Constitution provides an explicit textual source of
constitutional protection, a court must assess a plaintiff’s
claims under that explicit provision and not the more
generalized notion of substantive due process.”

Southerland v.

City of New York, 680 F.3d 127, 142-43 (2d Cir. 2011) (internal
quotation omitted).

“For child removal claims brought by the

child . . . the Constitution provides an alternative, more
specific source of protection than substantive due process.
When a child is taken into state custody, his or her person is
‘seized’ for Fourth Amendment purposes.

The child may therefore

assert a claim under the Fourth Amendment that the seizure of
his or her person was ‘unreasonable.’”

Id. at 143.

Because

K.S.’s claim is cognizable under the Fourth Amendment, he cannot
assert an additional substantive due process claim.
Accordingly, the Court grants Shedd’s motion for summary
judgment with respect to Count VI of the amended complaint.
2. Simuro’s Familial Association Claim
The Court next addresses the familial association claim
brought by Simuro himself.

To establish a violation of a

substantive due process right, a plaintiff must demonstrate (1)
a protected interest; and (2) state interference with that
interest that was “so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience.”
46

Id. at

151.

The Supreme Court has long held that parents and guardians

of minor children have protected interests in the care, control,
and custody of those children.

See, e.g., Troxel v. Granville,

530 U.S. 57, 65-66 (2000).
Because “protective services caseworkers [must] choose
between difficult alternatives in the context of suspected
abuse,” van Emrik v. Chemung Cnty. Dept. of Soc. Servs., 911
F.2d 863, 866 (2d Cir. 1990), the Second Circuit has recognized
the need for “unusual deference in the abuse investigation
context,” Kia P. v. McIntyre, 235 F.3d 749, 758 (2d Cir. 2000)
(internal quotation omitted).

Accordingly, an investigation

passes constitutional muster as long as a caseworker has a
“reasonable basis for [her] findings of abuse.”
quotation omitted).

Id. (internal

Nonetheless, a caseworker may not

substantiate a claim of abuse “by ignoring overwhelming
exculpatory information or by manufacturing false evidence.”
Wilkerson v. Russell, 182 F.3d 89, 104 (2d Cir. 1999).
Here, as discussed above, a reasonable jury could conclude
that Shedd both ignored significant exculpatory evidence and
manufactured false evidence when preparing her probable cause
affidavit.

Shedd’s affidavit was then attached to and

incorporated into Keefe’s affidavit, ECF No. 155-72 at 3, which
provided the factual basis for the CHINS petition that the State
submitted to family court, ECF No. 155-72.
47

The family court

proceeded to rely on the affidavits of Keefe and Shedd in
granting the State’s request to transfer temporary legal custody
of K.S. to DCF, specifically noting its concern with the
“allegations [of] sexual abuse of [K.S.].”

ECF No. 155-84.

Contrary to Shedd’s argument, the family court’s approval
of the State’s petition does not insulate Shedd from liability.
The Second Circuit has held that once “court confirmation of the
basis for removal is obtained, any liability for the
continuation of the allegedly wrongful separation of parent and
child can no longer be attributed to the officer who removed the
child.”
omitted).

Southerland, 680 F.3d at 153 (internal quotation
Yet, as at least one other court has recognized,

“when the facts upon which the judicial tribunal relies are
themselves false or misleading, court confirmation will not
suffice to show that the caseworker’s conduct had an objectively
reasonable basis.”

Estiverne v. Esernio-Jenssen, 833 F. Supp.

2d 356, 374 (E.D.N.Y. 2011) (internal quotation omitted).

Here,

both the CHINS petition and the family court’s temporary custody
order relied on Shedd’s affidavit.

Thus, because a reasonable

jury could find that the misstatements and omissions in Shedd’s
affidavit were sufficiently egregious so as to shock the
temporary conscience, Shedd cannot prevail as a matter of law.15

15

Although Shedd does not address qualified immunity, the Court notes that
she is not entitled to such a defense on summary judgment, as a reasonable
jury could find that her misstatements and omissions were not “objectively

48

The Court therefore denies Shedd’s motion for summary judgment
with respect to Count III of the amended complaint.
3. K.S.’s Unlawful Seizure Claim
As stated previously, “[w]hen a child is taken into state
custody, his or her person is ‘seized’ for Fourth Amendment
purposes.

The child may therefore assert a claim under the

Fourth Amendment that the seizure of his or her person was
‘unreasonable.’”

Southerland, 680 F.3d at 143.

For the purposes of the Fourth Amendment, the removal of a
child from his parents’ or guardians’ custody is generally
considered to be reasonable when it is executed pursuant to a
court order.

See Hernandez v. Foster, 657 F.3d 463, 474 (7th

Cir. 2011).

“However, when caseworkers, in their petition for

removal, make intentionally or recklessly false statements that
are necessary to a court’s finding of probable cause, they are
subject to Fourth Amendment liability.”

Estiverne, 833 F. Supp.

2d at 379; see also Southerland, 680 F.3d at 148-49 (denying
summary judgment for an allegedly illegal search based on a
removal petition, where there were issues of material fact as to
whether the caseworker “knowingly or recklessly made false
statements in his affidavit” and as to whether “such false
statements were necessary to the court’s finding of probable
cause”); Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007)

reasonable.”
2007).

See Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir.

49

(internal citation omitted) (holding that “[a] seizure conducted
pursuant to a warrant obtained by judicial deception violates
the Fourth Amendment.”).
In the present case, Plaintiffs have presented sufficient
evidence to allow a reasonable jury to find that Shedd
intentionally omitted and misstated facts in her probable cause
affidavit.

Because the affidavit was incorporated into the

State’s CHINS petition, and because the temporary custody order
specifically mentioned the allegations of sexual assault as one
of the bases for removal, the Court cannot find, as a matter of
law, that Shedd’s affidavit was not material to the family
court’s decision to seize K.S.16

See Estiverne, 833 F. Supp. 2d

at 379 (denying summary judgment on a child’s Fourth Amendment
seizure claim due to a “genuine issue of material fact as to
whether the petition for removal was either intentionally or
recklessly false.”).

For those reasons, the Court denies

Shedd’s motion for summary judgment with respect to Count V of
the amended complaint.
E. Simuro’s Claim for Intentional Infliction of Emotional
Distress
Finally, Shedd moves for summary judgment on Simuro’s claim
of intentional infliction of emotional distress.

In support of

16

Again, although Shedd does not raise the issue, the Court notes that she is
not entitled to qualified immunity because a reasonable jury could find that
her misstatements and omissions were not “objectively reasonable.” See
Jenkins v. City of New York, 478 F.3d 76, 87 (2d Cir. 2007).

50

her position, she asserts that her behavior was not sufficiently
outrageous to satisfy the elements of such a claim.
“To avoid summary judgment on a claim for [intentional
infliction of emotional distress], [P]laintiff must show that
[Defendant] ‘engaged in outrageous conduct, done intentionally
or with reckless disregard of the probability of causing
emotional distress, resulting in the suffering of extreme
emotional distress, actually or proximately caused by the
outrageous conduct.’”

Cate v. City of Burlington, 79 A.3d 854,

862-63 (Vt. 2013) (quoting Fromson v. State, 848 A.2d 344, 347
(Vt. 2004)).

“The test is objective; the plaintiff must show

that the harm resulting from the inflicted distress was so
severe that no reasonable person could be expected to endure
it.”

Farnum v. Brattleboro Retreat, Inc., 671 A.2d 1249, 1256

(Vt. 1995).

“It is for the court to determine as a threshold

question whether a jury could reasonably find that the conduct
at issue meets this test.”

Jobin v. McQuillen, 609 A.2d 990,

993 (Vt. 1992).
As discussed previously, a reasonable jury could find that
Shedd intentionally omitted and misstated facts in her probable
cause affidavit that inculpated Simuro on the charges related to
K.S.

She then submitted her affidavit to the State’s Attorney’s

Office, which relied on her statements in its decision to
prosecute Simuro for lewd and lascivious conduct and sexual
51

assault on a minor.

As a result, Simuro was separated from his

grandson for more than a year.

He also faced significant jail

sentences and a lifetime of social stigma.

Viewing the facts in

the light most favorable to Simuro, it cannot be said as a
matter of law that Shedd’s conduct was not “so outrageous in
character and so extreme in degree as to go beyond all possible
bounds of decent and tolerable conduct in a civilized
community.”

Farnum, 671 A.2d at 1256.

must be made by a jury.

Such a determination

Accordingly, the Court denies Shedd’s

motion for summary judgment with respect to Count XIII of the
amended complaint.
CONCLUSION
As explained above, the Court grants the Town of Windsor’s
motion for judgment on the pleadings (ECF No. 122).

The Town of

Windsor is therefore dismissed from this case, and the Court
denies its motion for summary judgment (ECF No. 142) as moot.
Defendant Shedd’s motion for summary judgment (ECF No. 141) is
granted in part and denied in part.

The Court grants summary

judgment on Counts II, VI, X, and XI, and denies summary
judgment on Counts I, III, V, VII, VIII, and XIII.

Finally,

Counts IV and XIV are dismissed, as the defendants against whom
those claims were brought have been dismissed from this suit.
Counts IX and XII are also dismissed, as they were brought
against only the Town of Windsor.
52

Dated at Burlington, in the District of Vermont, this 31st
day of March, 2016.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

53