Simuro et al v. Shedd et al

Filing 73

MEMORANDUM OPINION AND ORDER granting 63 Motion for Leave to File First Amended Complaint. Signed by Judge William K. Sessions III on 4/15/2014. (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 1 through X,
:
Defendants.
:

Case No. 2:13-CV-00030

Memorandum Opinion and Order
Plaintiffs Ernest Simuro and Simuro on behalf of K.S., a
minor, bring this case against Defendants Erin Keefe, a former
Department Children and Families (“DCF”) social worker, Linda
Shedd, a former sergeant with the Windsor Police Department,
Does I through X, and the Town of Windsor.

Plaintiffs assert

that the Defendants’ investigation, arrest, and prosecution of
Simuro based on allegedly false reports that Simuro sexually
abused his grandson and ward, K.S., as well as DCF’s seizure of
K.S., violated their rights under the Fourth and Fourteenth
Amendments.

Before the Court is Plaintiffs’ motion to amend

their Complaint.

Shedd and Keefe oppose the motion insofar as

it adds Shedd to Count V and Keefe to Counts I, VII, and VIII.
Because the Court finds that these amendments would not be
futile at this early stage, Plaintiffs’ motion to amend is
GRANTED.

The unopposed proposed amendments are GRANTED as well.
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Background
K.S., Simuro’s grandson, was born in 2003 and has remained
almost exclusively in Simuro’s care since his birth.
12, ECF No. 1.

Compl. ¶

Sometime during or around 2009, Debra Pitts,

Simuro’s daughter and K.S.’s mother, recorded a video of K.S. in
which K.S. answered affirmatively to his mother’s question
regarding whether Simuro had sexually abused him.

¶ 18.

A year

later, Pitts showed the video to Keefe, a DCF social worker.
20.

¶

Keefe visited Simuro’s home, but although she could not

confirm or refute Pitts’s claims, she wrote in her report to DCF
that K.S. had made a specific disclosure indicating sexual
abuse.

¶¶ 21-22.

Keefe then contacted Shedd, a police

sergeant, and the two of them interviewed K.S. and Simuro.
23, 25-38.

¶¶

At the end of her interview with Simuro, Shedd

arrested Simuro and booked him for sexual assault and lewd
conduct with a child.

¶ 39.

The next day, Shedd provided an affidavit in support of
Simuro’s prosecution, in which she claimed that K.S. had clearly
indicated he had been sexually abused.

¶ 40.

Four days later,

Shedd’s affidavit was attached, along with an affidavit written
by Keefe, to a CHINS1 petition, which resulted in DCF taking
custody of K.S.

¶¶ 44-45.

In the summer of 2011, the criminal

1

“CHINS” stands for a “child in need of care or supervision.”
Vt. Stat. Ann. tit. 33 § 5102(3) (2013).
2

charges were dismissed and a DCF review found that both the
video and the two interviews were insufficient to indicate K.S.
had been abused.

¶¶ 58-59.

Simuro was allowed to see K.S. in

February 2012, and he adopted K.S. in July 2012.

¶¶ 61-63.

Discussion
Plaintiffs have moved to amend their complaint.

In

general, courts should freely give leave to amend “when justice
so requires.”

Fed. R. Civ. P. 15(a)(2); see Foman v. Davis, 371

U.S. 178, 182 (1962).

“The Second Circuit has held that a

motion to amend should be denied ‘only for such reasons as undue
delay, bad faith, futility of the amendment, and perhaps most
important, the resulting prejudice to the opposing party.’”
Balentine v. Tremblay, No. 5:11-CV-196, 2012 WL 1999859, at *3
(D. Vt. June 4, 2012) (quoting Richardson Greenshields Secs.,
Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir. 1987)).

“An

amendment to a pleading will be futile if a proposed claim could
not withstand a motion to dismiss pursuant to Rule 12(b)(6).”
Dougherty v. Town of N. Hempstead Bd. of Zoning Appeals, 282
F.3d 83, 88 (2d Cir. 2002).

As with a Rule 12(b)(6) motion, the

Court accepts all factual allegations as true and draws all
reasonable inferences in favor of Plaintiffs.
Doe, 727 F.3d 248, 252-53 (2d Cir. 2013).
I.

Shedd

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See Askins v.

Plaintiffs seek to add Shedd to Count V, regarding the
seizure of K.S.

Shedd argues that this would be futile because

she did not have the authority to seize K.S., and therefore she
was not personally involved in DCF’s seizure of K.S.

An

official must be “personally involved” in the constitutional
violation to be liable under Section 1983.
F.3d 496, 501 (2d Cir. 1994).

Wright v. Smith, 21

However, this does not make the

amendment futile because Plaintiffs have plausibly pled facts
indicating that it was reasonably foreseeable that K.S. would be
put in DCF custody as a result of Shedd’s affidavit.

See Kerman

v. City of New York, 374 F.3d 93, 127 (2d Cir. 2004) (“The fact
that the intervening third party may exercise independent
judgment in determining whether to follow a course of action
recommended by the defendant does not make acceptance of the
recommendation unforeseeable or relieve the defendant of
responsibility.”); Warner v. Orange Cnty. Dep’t of Prob., 115
F.3d 1068, 1071 (“[A]n actor may be held liable for those
consequences attributable to reasonably foreseeable intervening
forces, including the acts of third parties.”) (internal
citation and quotation marks omitted).

It is reasonably

foreseeable that a social worker would seek to remove a child
from his guardian’s care after learning that the police officer,
with whom she was closely working, had arrested the guardian and
submitted an affidavit supporting his prosecution for sexually
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assaulting the child.

Thus, amending Count V would not be

futile.
II.

Keefe

Plaintiffs also seek to add Keefe to Counts I, VII, and
VIII, regarding Simuro’s arrest and prosecution, which Keefe
opposes on the same grounds that Shedd opposes her inclusion in
Count V.

As with Shedd, Plaintiffs have pled sufficient facts,

which if true, make it plausible that Simuro’s arrest and
prosecution were reasonably foreseeable due to Keefe’s conduct.
Plaintiffs allege that Keefe told Shedd in their initial
conversation that K.S. had made a disclosure that he had been
sexually abused by Simuro.

Further, Keefe had the initial

interview with K.S. and was present for Shedd’s interviews with
K.S. and Simuro.

It is reasonable to infer that Keefe’s

characterization of K.S.’s statements in the video colored
Shedd’s initial understanding of the situation, and that her
involvement with the interviews contributed to Shedd’s decision
to arrest Simuro and submit an affidavit in support of his
prosecution for the sexual abuse of K.S.

Because it was

reasonably foreseeable that Shedd would be arrested and
prosecuted for sexually abusing K.S. based on Keefe’s actions,
Plaintiffs have met their burden to show that amending these
counts would not be futile at this early stage.

5

Conclusion
For the reasons stated above, Plaintiffs’ motion to amend
is GRANTED in full.
DATED at Burlington, in the District of Vermont, this 15th
day of April, 2014.
/s/ William K. Sessions III
William K. Sessions III
United States District Judge

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