Simuro et al v. Shedd et al
Filing
29
ORDER AND OPINION granting 20 Motion to Dismiss without prejudice in regard to Shedd's individual liability for gross negligent conduct, which forms the legal basis of Counts IX and XII. Signed by Judge William K. Sessions III on 7/23/2013. (law)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
ERNEST SIMURO, and ERNEST SIMURO :
On behalf of K.S., a minor,
:
:
PlaintiffS, :
:
v.
:
:
LINDA SHEDD, ERIN KEEFE, TOWN OF :
WINDSOR, DOES I through X,
:
:
Defendant. :
:
Case No. 2:13-cv-30
ORDER AND OPINION
This is an action brought by Ernest Simuro to recover
damages stemming from his arrest and prosecution based on
allegations that he sexually abused his daughter and grandson.
Before the Court is Defendant Linda Shedd’s motion to dismiss
pursuant to Rule 12(b)(6), or alternatively to strike pursuant
to Rule 12(f),
pertain to her.
Counts IX and XII of the complaint as they
For the reasons stated below, the motion to
dismiss is granted without prejudice in regard to Shedd’s
individual liability for gross negligent conduct, which forms
the legal basis of Counts IX and XII.
BACKGROUND
Ernest Simuro’s daughter, Debra Pitts, was receiving
treatment at Valley Vista in February of 2008 when she told an
employee that Simuro had sexually assaulted her from when she
1
was ten years old to when she was twenty years old.
16.
Compl. ¶
Pitts quickly recanted her story when questioned by
officers from the Windsor Police Department (“WPD”).
Id.
But
four days later she alleged that Simuro had abused her son,
K.S., for whom Simuro had been the primary caretaker since
K.S.’s birth in 2003 and court appointed guardian since 2004.
Id. ¶¶ 5, 16-17.
Linda Shedd, a law enforcement officer with
the WPD, investigated the allegation that Simuro abused K.S.,
but found no evidence of abuse.
Id. ¶ 17.
More than two years later, Pitts again alleged that Simuro
had abused her and K.S. during a meeting with Vermont Department
of Children and Families (“DCF”) social worker Erin Keefe.
¶ 20.
Id.
Keefe reported the allegations to the WPD and conducted
her own investigation.
Compl. ¶ 22.
Shedd and Keefe both
interviewed Simuro and K.S. separately on October 19, 2010.
Id.
¶¶ 25, 28, 34.
Shedd arrested Simuro immediately following the interview.
Id. ¶ 39.
The next day, Shedd filed an affidavit with alleged
misstatements and omissions regarding her investigation, K.S.’s
statements during the interview, and Pitts’s history.
Id. ¶ 41.
Based on Shedd’s affidavit, Simuro was charged with one count of
lewd conduct with a minor and one count of sexual assault of a
child.
Simuro was released on conditions, including that he
have no contact with K.S. or leave Windsor County.
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Id. ¶ 42.
Pitts again alleged that Simuro had abused her during an
interview with Shedd on December 19, 2010.
Compl. ¶ 48.
Pitts
also claimed that she had seen Simuro outside of Windsor County
in violation of his Conditions of Release.
Id. ¶ 48.
On June
3, 2011, Simuro was arrested for sexually assaulting Pitts and
violating his Conditions of Release.
Id. ¶ 50.
Shedd filed
another affidavit two days later, which included alleged
misstatements and omissions regarding her interview with Pitts
and her investigation of Simuro.
Id. ¶ 51.
Based in part on
Shedd’s affidavit, Simuro was charged with four counts of sexual
assaulting Pitts.
Id. ¶ 53.
On June 30, 2011, Simuro filed a motion to dismiss the
charges relating to the alleged abuse of K.S., citing the
alleged misrepresentations and omissions in Shedd’s affidavit,
as well as the lack of evidence to substantiate the charges.
Compl. ¶ 58.
The State did not respond and the superior court
dismissed the charges on August 9, 2011. Id.
appeal.
Id.
The State did not
Simuro then filed a motion to dismiss the charges
relating to the alleged abuse of Pitts on October 13, 2011,
which also cited alleged misrepresentations and omissions in
Shedd’s affidavit.
On November 14, 2011, the State dropped all
charges against Simuro.
Id. ¶ 60.
As a result of this ordeal, Simuro lost custody of K.S. for
twenty-one months, was denied contact with K.S. for fifteen
3
months, and had to defend against two criminal prosecutions for
sexual assault.
Simuro also claims that he was subjected to
“extreme humiliation, scorn, and embarrassment in his community”
and that he “suffered severe mental anguish, continuing pain and
suffering, loss of income, medical costs, legal costs, the cost
of living outside his own home, and bail bond costs.”
Id. ¶ 64.
DISCUSSION
In this action Simuro asserts fourteen separate counts
against Shedd, Keefe, and the Town of Windsor.
The counts
relevant to this motion are Counts IX and XII, which seek to
hold Shedd and the Town of Windsor liable for Shedd’s gross
negligent conduct.
Counts IX and XII allege that Shedd was
grossly negligent by breaching duties of care not to arrest
Simuro without probable cause, not to file false or misleading
affidavits, and to investigate further the allegations against
Simuro.
Compl. ¶¶ 116, 132.
Count IX specifically relates to
Shedd’s conduct regarding the allegation that Simuro sexually
assaulted K.S.
See id. ¶¶ 114-118.
Count XII involves Shedd’s
conduct regarding the allegation that Simuro sexually assaulted
Pitts. See id. ¶¶ 130-134.
Shedd moved to dismiss Counts IX and
XII pursuant to Rule 12(b)(6) insofar as those counts seek to
hold her individually liable for gross negligence.
Dismiss at 2.
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Mot. to
In reviewing a Rule 12(b)(6) motion to dismiss, courts
consider “the legal sufficiency of the complaint, taking its
factual allegations to be true and drawing all reasonable
inferences in the plaintiff’s favor.”
66, 71 (2d Cir. 2009).
Harris v. Mills, 572 F.3d
Courts “apply a plausibility standard in
determining if plaintiff states a complaint for which relief may
be granted.”
La. Stadium & Exposition Dist. v. Fin. Guar. Ins.
Co., 701 F.3d 39, 42-43 (2d Cir. 2012).
A plausible claim is
one where “the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 556 (2007)).
Although the Court must construe the
plaintiff’s factual allegations as true and draw all reasonable
inferences from them, an assumption of truth is not afforded to
legal conclusions.
Id.
Section 901a provides that “[w]hen 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.”
added).
Vt. Stat. Ann. tit. 24, § 901a(b) (emphasis
An exception in the statute permits actions to be
brought individually against a municipal employee for willful or
5
intentional conduct, or when the employee acts outside the scope
of her authority.
tit. 24, § 901a(e).1
Thus, Section 901a
requires that claims are brought exclusively against a
municipality unless the conduct of the employee is “willful,
intentional, or outside the scope of the employee’s authority.”
Id.; see also State v. Fletcher, 996 A.2d 213, 217 (Vt. 2010)
(“[Courts] enforce the statute according to its plain terms.”).
It is not disputed that Shedd was acting within her
authority as a law enforcement officer regarding the conduct
asserted in the complaint.
Conducting an investigation, making
an arrest, and participating in a prosecution are all duties
within the scope of a law enforcement officer’s authority.
E.g., Long v. L’Esperance, 701 A.2d 1048, 1052 (1997) (noting
that a police officer acted within his authority despite making
a wrongful arrest).
The critical question here is whether gross
negligence charged in the complaint is equivalent to the
willfulness or intent required to hold a municipal employee
individually liable under section 901a.
The Vermont Supreme Court stated that gross negligence
“falls short of being such reckless disregard of probable
consequences as is equivalent to a wil[l]ful or intentional
1
Section 901a, while similar to 12 V.S.A § 5602—the statute governing
official immunity for state employees—is distinct insofar as the exception
allowing individual liability for municipal employee requires a showing of
willfulness or intent, whereas an action can be brought individually against
a state employee for either gross negligence or willful misconduct. Vt.
Stat. Ann. tit. 12, § 5602(b).
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wrong.”
Shaw v. Moore, 162 A. 373, 374 (Vt. 1932); Sorrell v.
White, 153 A. 359, 362 (Vt. 1931) (“The terms ‘negligence’ and
‘wil[l]fulness’ are incompatible and the opposite of each other,
because negligence arises from inattention, thoughtlessness or
heedlessness, while wil[l]fulness cannot exist without purpose
of design.”); see also Behr v. Hook, 787 A.2d 499, 504 (Vt.
2001) (relying on Shaw to deny “Plaintiff’s attempt to equate an
allegation of gross negligence with willful and wanton
conduct.”).
In Sorrell, the Vermont Supreme Court confronted
the term “wil[l]ful negligence” included in a state tort
statute.2
153 A. at 360.
The Court noted the distinction
between willful negligence from gross negligence is that willful
negligence contains an element of intent, whereas gross
negligence does not.
Id. at 362-63.
Because section 901a requires willful or intentional
conduct to hold a municipal employee individually liable, the
claims of gross negligence asserted in Counts IX and XII are
legally insufficient to hold Shedd individually liable for her
conduct.
2
Instead, claims predicated on the gross negligence of
Act 78 of the 1929 Session of the Vermont General Assembly provided:
“The owner or operator of a motor vehicle shall not be liable in
damages for injuries received by any occupant of the same
occasioned by reason of the operation of said vehicle unless such
owner or operator has received or contracted to receive pay for
the carriage of said occupant, or unless such injuries are caused
by the gross or willful negligence of the operator.”
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a municipal employee must be brought exclusively against the
Town of Windsor. See tit. 24, § 901a(b).
CONCLUSION
To the extent that Simuro seeks to hold Shedd individually
liable in Counts IX and XII, section 901a intercedes to shield
Shedd from allegations of gross negligence.
As such, Counts IX
and XII, as they pertain to Shedd, are dismissed without
prejudice.
Dated at Burlington, in the District of Vermont, this 23rd
day of July, 2013.
/s/William K. Sessions III__
William K. Sessions III
U.S. District Court Judge
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