Gauthier et al v. Kirkpatrick et al
Filing
60
OPINION AND ORDER: Defendants Troy Kirkpatrick and Weiland Ross's 34 MOTION for Partial Dismissal is GRANTED, the City of Barre's 35 MOTION to Dismiss is GRANTED, and State Defendants' 49 and Judge Howard VanBenthuysen's 50 MOTIONS to Dismiss for Lack of Jurisdiction are GRANTED. Plaintiffs are allowed 30 days to file an Amended Complaint. Signed by Judge John M. Conroy on 12/9/2013. (hbc)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
David Gauthier, Edward Gauthier,
Plaintiffs,
v.
Civil Action No. 2:13-cv-187
Troy Kirkpatrick, Barre, Vermont,
Weiland Ross, Judge Howard VanBenthuysen,
Newport Correctional Facility, Rick Wade,
Michael Mathieu, Nicholas Fortier,
Jeff Poginy, Thomas Kelly, Megan Campbell,
State Trooper Leblanc, State Trooper Maurice,
Bonnie Goode, and Tiffany Stark,
Defendants.
OPINION AND ORDER
(Docs. 34, 35, 49, 50)
Plaintiffs David Gauthier and Edward Gauthier, proceeding pro se, bring this suit
under 42 U.S.C. §§ 1983, 1985, 1986, 1988 and the Fourth, Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution against Defendants Tiffany Stark, the City
of Barre and its “municipal judges,” the “Newport Correctional Facility,”1 and various
state and municipal officials, each in their personal and official capacities. (Doc. 6 at 1–
6.) Plaintiffs’ claims stem from Defendants’ seizure or arrest of Plaintiffs, the
proceedings in David Gauthier’s state court criminal case, and Plaintiffs’ treatment at
1
The Complaint names the “Newport Correctional Facility” as a defendant, but there does not
appear to be an entity existing under that name. Because the only correctional facility located in
Newport, Vermont is the Northeast State Correctional Facility (“NSCF”) (Doc. 49 at 1 n.1), the Court
assumes NSCF is the party Plaintiffs intended to sue. NSCF has waived service of the Complaint. (Doc.
9.)
correctional facilities during the state court proceedings. Plaintiffs seek $6.825 million in
compensatory damages and $850,000 in punitive damages against all Defendants jointly
and severally, as well as costs and attorney’s fees. (Id. at 12.)
All of the municipal Defendants have moved to dismiss. Defendants Kirkpatrick
and Ross have filed a Rule 12(b)(6) Motion for Partial Dismissal of Plaintiffs’ claims
against them, arguing that they cannot be sued in their official capacities. (Doc. 34 at 1.)
These Defendants also seek dismissal of Plaintiffs’ claims against them under 42 U.S.C.
§§ 1985, 1986, and 1988, and under the Fifth, Eighth, and Fourteenth Amendments. (Id.)
The City of Barre has filed a separate Rule 12(b)(6) Motion to Dismiss, arguing that
Plaintiffs have failed to state a claim for § 1983 municipal liability. (Doc. 35 at 3.)
Defendants NSCF and all of the other state officials have also moved to dismiss.
Judge Howard VanBenthuysen seeks dismissal of the claims against him, asserting
Eleventh Amendment immunity, absolute judicial immunity, and failure to state a claim.
(See Doc. 50-1 at 1–2.) Finally, the other state entities and officials—all of whom are
represented by the Office of the Attorney General—have moved to dismiss Plaintiffs’
claims against them, arguing Eleventh Amendment immunity, lack of personal
involvement or failure to state a claim, absolute prosecutorial immunity, qualified
immunity, and failure to state a claim of conspiracy under 42 U.S.C. §§ 1985 and 1986.
(See Doc. 49 at 1–2.)
The Court held a hearing on the pending Motions on November 13, 2013, at which
both David and Edward Gauthier appeared. All parties have consented to direct
2
assignment to the undersigned Magistrate Judge. (Docs. 33, 37, 38, 41, 53, 55.) For the
reasons discussed below, the Court GRANTS each of Defendants’ Motions to Dismiss.
Background
For purposes of the Motions to Dismiss, all facts alleged in the Complaint (Doc. 6)
are accepted as true.2 On or about January 4, 2012 at approximately 7:15 p.m., Barre
police officers Troy Kirkpatrick and Weiland Ross knocked on the door of Edward
Gauthier’s apartment and then entered the apartment without cause or a warrant, without
identifying themselves as policemen, and without Edward Gauthier’s consent. Both
Kirkpatrick and Ross were acting as “State employed” police officers for the City of
Barre. (Doc. 6 at 5, ¶¶ 3, 6.) At no time, however, did Ross have a valid oath of office.
Kirkpatrick and Ross then “interrogated” Edward, asking him if David—who is
Edward’s brother—was there at Edward’s apartment.3 (Id. at 6, ¶ 3.) David was in the
bathroom and did not hear Kirkpatrick and Ross enter the apartment. David came out of
the bathroom and observed Kirkpatrick and Ross standing in the kitchen.
Kirkpatrick said that he had a complaint and paperwork for David. David
observed the paperwork and told Kirkpatrick that he had received the same paperwork
the day before from the Sheriff’s office. Kirkpatrick then took David’s paperwork from
the Sheriff’s office and put it in his back pocket. David asked Kirkpatrick to give him his
paperwork back and Kirkpatrick said that he did not have it. David pointed out that
2
The allegations against Defendant Tiffany Stark are not summarized here because there is no
pending motion relating to them.
3
For clarity the Court refers to Plaintiffs by their first names.
3
Kirkpatrick had it in his back pocket. Kirkpatrick then said, “[O]h I thought it was my
paperwork,” and returned it to David. (Id. at 7, ¶ 11.)
Kirkpatrick instructed Ross to go out to the car and get a citation book. Ross left
the apartment and—over David’s objection—re-entered with a citation book. Kirkpatrick
then instructed Ross to write and issue to David a citation to appear in court because
David would not accept their paperwork. David objected and refused the citation.
At that instant, Kirkpatrick and Ross grabbed Edward, slammed him on the
counter, and handcuffed him. Ross reached out to grab David’s telephone because David
was recording the event. Ross then threw David on the floor and put his knee on David’s
back. Kirkpatrick pointed a taser at David’s face and threatened to shoot. David was
then handcuffed.
David objected, citing his constitutional rights. Ross slammed David onto the
floor, saying, “[F]uck your constitutional rights you don’t have any constitutional rights.”
(Id. at 8, ¶ 18.) As he was being taken to a police car, David observed two Vermont State
Troopers arriving at the scene—Defendants Leblanc and Maurice—and he told Trooper
Leblanc that his constitutional rights were being violated. Trooper Leblanc responded,
“[Y]ou’ll have to take that up with the Judge.” (Id. at 8, ¶ 19.) While being seized,
David asked Ross to lock the door to Edward’s apartment. Ross would not lock the door,
and as a result some of Edward’s personal property was later stolen from the apartment.
David asked Ross to be taken before a judge immediately, but Ross told him he
would have to wait in jail overnight because there was no judge available that late at
night. David was taken to the Barre police department, and Ross put him in a cell. David
4
spent the night in jail, and was taken before Judge Howard VanBenthuysen the next
morning.
Although it is not entirely clear from the Complaint, it appears that Judge
VanBenthuysen ordered David jailed pre-trial. The Judge told David he was going to
jail, and gave no time limit. The Complaint alleges that the charges in the criminal case
have since been dismissed, but that David spent three months and a day in jail
(presumably as a pre-trial detainee). Plaintiffs allege a variety of errors with the criminal
proceedings, including denial of counsel and denial of a speedy trial, some of which
Plaintiffs seem to attribute to Deputy State’s Attorney Megan Campbell as the
“Prosecuting Attorney.” (Id. at 3.) State’s Attorney Thomas Kelly was not present
during David’s court appearance.
The Complaint also alleges that David spent four days in jail in St. Johnsbury, and
that while he was there the jailors told him that if he did not sign certain paperwork he
would not be given any food.4 David asserts that he signed the paperwork under duress
for fear of starvation. David was then transferred to the Northeast State Correctional
Facility (“NSCF”) in Newport, where he spent 88 days. While at NSCF, for three weeks,
David was denied medication that was prescribed by the Washington County Mental
Health Facility. He also suffered starvation because he is allergic to fish but was denied a
special diet. The Complaint is in some instances unclear about what happened to which
4
Since Plaintiffs served Defendants Fortier, Mathieu, Poginy, and Wade at the Northeast
Regional Correctional Facility in St. Johnsbury, Plaintiffs appear to be alleging that they were the
individuals who told David he would not be given any food if he did not sign the paperwork. (See Doc. 6
at 2.)
5
Plaintiff, but at the November 13, 2013 hearing, Edward stated that he, too, was
incarcerated and denied medication.
Plaintiffs have also included Bonnie Goode, the administrator of the Vermont Sex
Offender Registry, as a Defendant in this case. According to Plaintiffs, Goode was
presented with papers from the Maine Sex Offender Registry instructing her to remove
David from the Vermont Sex Offender Registry, apparently because David had
completed his requirement to remain on the Maine Registry for ten years. Goode,
however, decided not to remove David from the Vermont Registry.
Analysis
I.
Standard of Review
At the outset, the Court notes that some of the named Defendants seek dismissal
not only under Rule 12(b)(6), but also under Rule 12(b)(1) on immunity grounds. As the
Second Circuit has noted, the distinction is potentially significant because in evaluating a
Rule 12(b)(1) motion, a court may resolve disputed factual issues by reference to
evidence outside the pleadings. State Emps. Bargaining Agent Coal. v. Rowland, 494
F.3d 71, 77 n.4 (2d Cir. 2007). Here, however, the Defendants seeking dismissal under
Rule 12(b)(1) have not presented affidavits or evidence that they contend should be
considered in resolving any factual issue. The Court therefore constrains its review to the
documents permissible under Rule 12(b)(6).
To survive a Rule 12(b)(6) motion to dismiss, “‘a complaint must contain
sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its
face.’” Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60, 65 (2d Cir.
6
2012) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Although the Court must
“accept as true all factual statements alleged in the complaint and draw all reasonable
inferences in favor of the non-moving party,” McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 191 (2d Cir. 2007), a plaintiff’s “[f]actual allegations must be enough to raise a
right to relief above the speculative level,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007). Indeed, “[c]onclusory allegations or legal conclusions masquerading as factual
conclusions will not suffice to [defeat] a motion to dismiss.” Achtman v. Kirby,
McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (alterations in original)
(quotation marks omitted).
Where, as here, the plaintiffs are proceeding pro se, courts are obligated to
construe the pleadings liberally. See, e.g., Sealed Plaintiff v. Sealed Defendant, 537 F.3d
185, 191 (2d Cir. 2008); McEachin v. McGuinnis, 357 F.3d 197, 200 (2d Cir. 2004).
Nevertheless, a pro se plaintiff’s complaint must state a claim to relief that is plausible on
its face. Walker v. Schult, 717 F.3d 119, 124 (2d Cir. 2013).
Plaintiffs have filed no written opposition to the Motions to Dismiss, but their
failure to respond in writing does not warrant dismissal; the Court is still required to
review the Motions and determine whether the Complaint is sufficient to state a claim on
which relief can be granted. McCall v. Pataki, 232 F.3d 321, 322–23 (2d Cir. 2000).
II.
Kirkpatrick and Ross’s Motion for Partial Dismissal
Defendants Kirkpatrick and Ross move to dismiss all of Plaintiffs’ claims against
them in their official capacities, and further move to dismiss Plaintiffs’ claims under 42
7
U.S.C. §§ 1985, 1986, and 1988. They also seek dismissal of Plaintiffs’ claims under the
Fifth, Eighth, and Fourteenth Amendments.
A.
Official-Capacity Claims
Kirkpatrick and Ross argue that Plaintiffs’ claims against them in their official
capacities must be dismissed as redundant to Plaintiffs’ claims against the City of Barre.
(Doc. 34 at 5.) The Court agrees. “A claim asserted against an individual in his official
capacity . . . is in effect a claim against the governmental entity itself, rather than a suit
against the individual personally, for ‘official-capacity suits generally represent only
another way of pleading an action against an entity of which an officer is an agent.’”
Lore v. City of Syracuse, 670 F.3d 127, 164 (2d Cir. 2012) (quoting Monell v. Dep’t of
Soc. Servs., 436 U.S. 658, 691 n.55 (1978)). Here, Plaintiffs have also named as a
defendant the City of Barre—the principal for whom Kirkpatrick and Ross were working
as agents. Plaintiffs’ claims against Kirkpatrick and Ross in their official capacities are
therefore duplicative of the action against the City. See Nolen v. City of Barre, Vt., No.
2:10-CV-241, 2011 WL 805865, at *5 (D. Vt. Mar. 1, 2011) (dismissing claims against
individual Barre City officials in their official capacities as duplicative of the action
against the City). Plaintiffs’ claims against the City of Barre are discussed in Part III,
infra.
B.
Conspiracy Claims Under 42 U.S.C. §§ 1985 and 1986
The three subsections of 42 U.S.C. § 1985 proscribe conspiratorial activity that
interferes with the following five categories of activities: “(a) the performance of official
duties by federal officers; (b) the administration of justice in federal courts; (c) the
8
administration of justice in state courts; (d) the private enjoyment of ‘equal protection of
the laws’ and ‘equal privileges and immunities under the laws’; and (e) the right to
support candidates in federal elections.” Kush v. Rutledge, 460 U.S. 719, 724 (1983).
The civil remedy for a violation of any of the three subsections of § 1985 is found at the
end of § 1985(3). Id. Kirkpatrick and Ross maintain that § 1985(1) and (2) do not apply
to the facts alleged in the Complaint, and that Plaintiffs fail to allege an essential element
to a claim under § 1985(3)—namely, class-based invidious discriminatory animus. (Doc.
34 at 6–8.)
Section 1985(1) proscribes conspiracies that interfere with the performance of
official duties by federal officers. See Kush, 460 U.S. at 724. The Complaint in this case
contains no allegations that Kirkpatrick and Ross engaged in such a conspiracy. Section
1985(2) prohibits conspiracies that interfere with the administration of justice in state and
federal courts. See id. Here, the Complaint alludes to a court proceeding in that
Kirkpatrick and Ross were attempting to deliver a complaint and paperwork to David.
However, the alleged facts do not suggest that Kirkpatrick and Ross were acting to
obstruct that proceeding or any other court proceeding by, for example, intimidating a
party, witness, or juror. To the extent that David was a party to the proceedings
described in the paperwork, the Complaint does not allege or suggest that the force used
or other actions taken by Kirkpatrick and Ross did deter or were designed to deter David
from attending court or testifying, or to retaliate for having testified.
Section 1985(3) proscribes conspiracies that interfere with the right to support
candidates in federal elections, and that interfere with the private enjoyment of “equal
9
protection of the laws” and “equal privileges and immunities under the laws.” Id. at 724.
Here, the Complaint does not suggest any attempt to interfere with Plaintiffs’ right to
support candidates in federal elections. However, the Complaint does allege violations of
the Fourteenth Amendment, which prohibits state action that abridges citizens’ privileges
and immunities or denies the equal protection of the laws. Thus Plaintiffs are presumably
alleging a conspiracy under § 1985(3)’s “deprivation” clause, its “hindrance” clause, or
both. See Jenkins v. Miller, No. 2:12-CV-184, 2013 WL 5770387, at *22 (D. Vt. Oct. 24,
2013) (distinguishing those two clauses of § 1985(3)).
In order to state a claim under either the deprivation clause or the hindrance
clause, a plaintiff must allege that the conspiracy was motivated by invidiously
discriminatory intent. See id. at *23, *29 (citing Libertad v. Welch, 53 F.3d 428, 448 (1st
Cir. 1995)). The Complaint in this case lacks any allegations of class-based
discrimination underlying Kirkpatrick and Ross’s actions, and thus fails to state a claim
under § 1985(3). See Posr v. Court Officer Shield No. 207, 180 F.3d 409, 419 (2d Cir.
1999); Lucas v. New York City, 842 F. Supp. 101, 104 (S.D.N.Y. 1994) (dismissing
complaint for failure to state a claim under § 1985(3) because it was “devoid of any
allegation of a ‘class-based, invidious discriminatory animus’”) (quoting Tuaha Mian v.
Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)); see also
Young v. Suffolk Cnty., 705 F. Supp. 2d 183, 208 (E.D.N.Y. 2010) (same; citing Lucas).
In sum, Plaintiffs have failed to state a claim under any of the provisions of
§ 1985. As a result, Plaintiffs’ claim under 42 U.S.C. § 1986 must also fail. See Brown
v. City of Oneonta, N.Y., 221 F.3d 329, 341 (2d Cir. 2000) (“[A] § 1986 claim must be
10
predicated on a valid § 1985 claim.”) (quoting Mian v. Donaldson, Lufkin & Jenrette Sec.
Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (per curiam)); Posr, 180 F.3d at 419 (“[N]o
§ 1986 claim will lie where there is no valid § 1985 claim.”) (citing Gagliardi v. Vill. of
Pawling, 18 F.3d 188, 194 (2d Cir. 1994)). And the Court need not consider Kirkpatrick
and Ross’s alternative argument that Plaintiffs’ claim under § 1986 is time-barred under
that statute’s one-year limitations period. (See Doc. 34 at 8.)
C.
Section 1983 Claims
Federal law provides a civil claim for damages against “[e]very person who, under
color of any statute . . . of any State . . . subjects, or causes to be subjected, any citizen
. . . to the deprivation of any rights, privileges, or immunities secured by the Constitution
and laws.” 42 U.S.C. § 1983. “The purpose of § 1983 is to deter state actors from using
the badge of their authority to deprive individuals of their federally guaranteed rights and
to provide relief to victims if such deterrence fails.” Wyatt v. Cole, 504 U.S. 158, 161
(1992). “Section 1983 itself creates no substantive rights; it provides only a procedure
for redress for the deprivation of rights established elsewhere.” Thomas v. Roach, 165
F.3d 137, 142 (2d Cir. 1999) (citing City of Oklahoma City v. Tuttle, 471 U.S. 808, 816
(1985)). “To prevail on a § 1983 claim, a plaintiff must establish that a person acting
under color of state law deprived him of a federal right.” Id.
11
Here, Plaintiffs claim that Kirkpatrick and Ross were acting under color of state
law when they deprived Plaintiffs of their rights under the Fourth, Fifth, Eighth,5 and
Fourteenth Amendments. (Doc. 6 at 4.) Kirkpatrick and Ross move to dismiss each of
these claims except the Fourth Amendment claim. (Doc. 34 at 1.)
1.
Fifth Amendment Claim
Plaintiffs cite the Fifth Amendment in their Complaint, but it is not clear which
provision of that Amendment they allege was violated. Kirkpatrick and Ross assume the
claim is that they violated Plaintiffs’ rights against self-incrimination. (Doc. 34 at 9.)
They assert that the Complaint’s allegation that they “interrogated” Edward about
David’s whereabouts is “the closest the Plaintiffs get to making a Fifth Amendment
claim.” (Id. at 9 n.7.) Kirkpatrick and Ross maintain that the Complaint does not allege
that any unwarned self-incriminating assertion by either Plaintiff was introduced at any
trial against them, and that as a result Plaintiffs have failed to state a Fifth Amendment
claim. (Id. at 9–10.)
The Fifth Amendment protects the right against self-incrimination. See United
States v. Chiochvili, 81 F. Supp. 2d 393, 394–95 (N.D.N.Y. 1999) (“Pursuant to the Fifth
Amendment privilege against self-incrimination it is well established and well known
that a person taken into custody by law enforcement officials must be advised of her
rights, including, among others, the right to remain silent.”) (footnote omitted) (citing
Miranda v. Arizona, 384 U.S. 436, 467–68 (1966)). To the extent that Plaintiffs are
5
Plaintiffs unambiguously cite the Eighth Amendment in their Complaint (Doc. 6 at 4), but there
is some question about whether they are asserting any Eighth Amendment claim against Defendants
Kirkpatrick, Ross, and the City of Barre. That issue is discussed in Part II.D.2 below.
12
alleging a violation of the Fifth Amendment privilege against self-incrimination, the
Court finds that the Complaint fails to state a claim for damages under § 1983 for any
such violation. The Complaint does not allege that any unwarned statements made by
Plaintiffs were used against them at trial, but even if it did, the remedy would not be
damages under § 1983. See Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 346 (2d
Cir. 1998) (“The remedy for a violation of the right against self-incrimination is ‘the
exclusion from evidence of any ensuing self-incriminating statements’ and ‘not a § 1983
action.’”) (quoting Neighbor v. Covert, 68 F.3d 1508, 1510 (2d Cir. 1995) (per curiam)).6
In addition to the right against self-incrimination, the Fifth Amendment guarantees
four additional categories of rights: (1) the right to grand juries in most criminal cases;
(2) a prohibition on double jeopardy; (3) a due process and equal protection guarantee;7
and (4) a “just compensation” clause for federal government takings of private property.
See U.S. Const. amend. V. Of those, the only potentially relevant category in this case is
the due process and equal protection guarantee.8 However, the analysis of due process
and equal protection under the Fifth Amendment is “basically the same” as the analysis
6
As the court in Neighbour explained, this is because “Miranda warnings are a procedural
safeguard rather than a right explicitly stated in the Fifth Amendment.” 68 F.3d at 1510.
7
The Fifth Amendment does not explicitly guarantee equal treatment under the law, but “the
liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against
denying to any person the equal protection of the laws.” United States v. Windsor, 133 S. Ct. 2675, 2695
(2013); see also Able v. United States, 155 F.3d 628, 631 (2d Cir. 1998) (“The Due Process Clause of the
Fifth Amendment assures every person the equal protection of the laws, ‘which is essentially a direction
that all persons similarly situated should be treated alike.’”) (quoting City of Cleburne v. Cleburne Living
Ctr., Inc., 473 U.S. 432, 439 (1985)).
8
To the extent that Plaintiffs might be asserting that Kirkpatrick and Ross’s failure to lock the
apartment door constituted a “taking,” that claim would be meritless because the Complaint alleges that
the personal property was stolen, not taken by the government for “public use.” U.S. Const. amend. V.
13
under the Fourteenth Amendment. Chew v. Dietrich, 143 F.3d 24, 28 n.4 (2d Cir. 1998);
see Nicholas v. Tucker, 114 F.3d 17, 19 (2d Cir. 1997) (“The standards for analyzing
equal protection claims under either amendment [i.e., the Fifth or the Fourteenth] are
identical.”). Given that Plaintiffs also allege violations of the Fourteenth Amendment,
the Court treats all of the allegations of due process and equal-protection violations
together, infra, in the course of analyzing Plaintiffs’ Fourteenth Amendment claim.
2.
Eighth Amendment Claim
The Complaint alleges that David has suffered:
[P]hysical and emotional cruel and unusual punishment, in direct violation
of the Eighth Amendment, by [the] combined unreasonable actions of
Defendants John Does as shown above and it is unreasonable that any jailor
would not have known that to physically torture a prisoner by not allowing
him to have allocations of sufficient food, or receive medical treatment,
would be a violation of his rights.
(Doc. 6 at 11.) Parsing that allegation, Kirkpatrick and Ross note that Plaintiffs appear to
limit their Eighth Amendment claims to “Defendants John Does,” but contend that, even
if the claims are also directed at them, they fail. (Doc. 34 at 10 & n.8.) The Court agrees
that the above-quoted paragraph does not allege any Eighth Amendment claim against
Kirkpatrick or Ross. However, the Complaint asserts elsewhere that, “[a]t all time[s]
relevant, all defendants, especially Kirkpatrick, Ross, and Judge VanBenthuysen, were
acting within the scope of their duties . . . when depriving Gauthier of his rights . . .
protected by the 4th, 5th, 8th, and 14th amendments.” (Doc. 6 at 10–11.)
14
To the extent that Plaintiffs are attempting to allege an Eighth or Fourteenth
Amendment9 violation against Kirkpatrick and Ross, the Complaint contains only a
conclusory allegation that Kirkpatrick and Ross violated the constitutional provisions
regarding conditions of confinement. Plaintiffs have alleged no facts suggesting that
either Kirkpatrick or Ross was involved in any of the alleged unconstitutional conditions
of confinement. Kirkpatrick or Ross did, according to the Complaint, place David in jail
for one night before he appeared in court, but Plaintiffs’ only attack on that act is directed
at the fact—not the conditions—of the confinement. Even when viewed in the light most
favorable to Plaintiffs, the Complaint does not suggest that Kirkpatrick or Ross was
involved in the allegedly unconstitutional conditions at either of the correctional facilities
where David was incarcerated after he appeared before Judge VanBenthuysen.
Therefore, the Court need not consider Kirkpatrick and Ross’s additional argument that,
even if they were responsible for withholding medication or food, those acts or omissions
do not rise to the level of a serious medical condition. (See Doc. 34 at 11.)10
3.
Fourteenth Amendment Claim
Kirkpatrick and Ross note that the precise nature of Plaintiffs’ Fourteenth
Amendment claim is not clear from the Complaint. (Doc. 34 at 12.) However,
9
Because the only confinement alleged in the Complaint appears to have occurred pretrial, the
claim would properly be analyzed under the Fourteenth Amendment’s Due Process Clause rather than
under the Eighth Amendment. See Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (“[A] person
detained prior to conviction receives protection against mistreatment at the hands of prison officials under
the Due Process Clause of the Fifth Amendment if the pretrial detainee is held in federal custody, or the
Due Process Clause of the Fourteenth Amendment if held in state custody.”). That is a distinction
without much difference, however, given that the analysis is the same under either Amendment. See id. at
70–71.
10
The Court will address the issue, however, in the context of the Attorney General’s motion to
dismiss the claims against the John Does. See infra, Part V.C.4.
15
Kirkpatrick and Ross identify three potential Fourteenth Amendment claims that
Plaintiffs might be attempting to assert against them: (1) a procedural due-process claim
arising out of the personal property stolen from Edward’s apartment; (2) a substantive
due-process claim arising out of Kirkpatrick and Ross’s entry into the apartment and the
arrests they effected; and (3) an equal-protection claim premised on the same entry and
arrests. (Id. at 12–16.) Kirkpatrick and Ross maintain that the procedural due-process
claim fails for lack of state action; that the substantive due-process claim fails because it
is trumped by Plaintiffs’ Fourth Amendment claim; and that any equal-protection claim
fails because the Complaint does not allege that Kirkpatrick or Ross treated Plaintiffs
differently from others similarly situated, that their actions were racially motivated, or
that they were treated differently without a rational basis for such treatment. (Id.)
The Court agrees that Plaintiffs have failed to state a procedural due-process claim
based on a third party’s theft of personal property from Edward’s unlocked apartment.
As the Supreme Court has stated, “the Due Process Clause is simply not implicated by a
negligent act of an official causing unintended loss of or injury to life, liberty, or
property.” Daniels v. Williams, 474 U.S. 327, 328 (1986). Even an intentional
deprivation of property by a state employee “does not constitute a violation of the
procedural requirements of the Due Process Clause of the Fourteenth Amendment if a
meaningful post[-]deprivation remedy for the loss is available.” Hudson v. Palmer, 468
U.S. 517, 533 (1984). “For intentional, as for negligent deprivations of property by state
employees, the state’s action is not complete until and unless it provides or refuses to
provide a suitable post[-]deprivation remedy.” Id. (footnote omitted). Here, Kirkpatrick
16
or Ross’s failure to lock the apartment door may have been a negligent act or omission
causing a subsequent theft, but that act or omission does not constitute a due-process
violation. Moreover, whether the failure to lock the apartment was negligence or an
intentional act, the State of Vermont provides a suitable post-deprivation remedy in the
form of an action for negligence or conversion.
The Court also agrees that Plaintiffs’ claims arising out of Kirkpatrick and Ross’s
entry into Edward’s apartment and arrest of both Plaintiffs should not be analyzed as
substantive due-process claims under the Fourteenth Amendment. Insofar as Plaintiffs
challenge Kirkpatrick and Ross’s entry into Edward’s apartment as an unreasonable
search, that claim should be analyzed under the Fourth Amendment, not the Fourteenth.
Conn v. Gabbert, 526 U.S. 286, 293 (1999). Similarly, Plaintiffs’ claim that Kirkpatrick
and Ross used excessive force in effecting the arrests must be analyzed under the Fourth
Amendment rather than under a “substantive due process” approach. Graham v. Connor,
490 U.S. 386, 395 (1989). This is because “the Fourth Amendment provides an explicit
textual source of constitutional protection” against unreasonable searches and seizures,
and thus that Amendment should be the guide for analyzing such claims, as opposed to
the “more generalized notion of ‘substantive due process.’” Id.
Finally, the Court concludes that Plaintiffs have failed to state a claim against
Kirkpatrick and Ross under the Fourteenth Amendment’s Equal Protection Clause. “The
Equal Protection Clause requires that the government treat all similarly situated people
alike.” Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 (2d Cir. 2001) (citing
City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985)). “Under the Equal
17
Protection Clause, certain ‘suspect’ classifications are subject to strict judicial scrutiny.”
Pyke v. Cuomo, 567 F.3d 74, 77 (2d Cir. 2009) (per curiam). “Quasi-suspect”
classifications receive “intermediate scrutiny.” Windsor v. United States, 699 F.3d 169,
185 (2d Cir. 2012), aff’d, 133 S. Ct. 2675 (2013). “When a party challenges a
government classification that does not involve a suspect class or burden fundamental
rights, courts apply rational basis scrutiny.” Spavone v. N.Y. State Dep’t of Corr. Servs.,
719 F.3d 127, 136 (2d Cir. 2013). “Individuals who allege no specific class membership
but are nonetheless subject to invidious discrimination at the hands of government
officials” may bring a “class of one” equal protection claim. Harlen, 273 F.3d at 499
(citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)).
Here, Plaintiffs allege that Kirkpatrick and Ross failed to apply the law correctly
and violated Plaintiffs’ fundamental rights, but that is different from a claim that they
failed to apply the law equally on the basis of some classification. Even construed
liberally, the Complaint does not allege or suggest that any “discriminatory intent” was a
motivating factor in Kirkpatrick and Ross’s actions. Okin v. Vill. of Cornwall-on-Hudson
Police Dep’t, 577 F.3d 415, 438 (2d Cir. 2009).
III.
The City of Barre’s Motion to Dismiss
As noted above, Plaintiffs contend that the City of Barre maintains a practice of
depriving individuals of their liberty and property rights, neglected to properly train or
supervise its police officers and “municipal judges,” and is vicariously liable for the
actions of its employees. (Doc. 6 at 10–11.) The City of Barre moves to dismiss each of
Plaintiffs’ claims against it.
18
A.
The City’s Liability for Judge VanBenthuysen’s Acts
Plaintiffs have failed to state a facially plausible claim under which the City of
Barre might be liable for failing to properly train or supervise Judge VanBenthuysen, or
vicariously for his allegedly wrongful judicial acts. Judge VanBenthuysen is not a
municipal judge, and the City of Barre has no supervisory authority over him. It is a
matter of public record11 that Judge VanBenthuysen is—and was in January 2012—a
Superior Judge for the State of Vermont. See 4 V.S.A. § 1 (establishing unified state
court system); Assignment and Designation No. 11-2011 (Vt. Super. Ct. May 2011)
(Davenport, J.), available at https://www.vermontjudiciary.org/JC
/Shared%20Documents/2011-2012Assignments.pdf (listing Judge VanBenthuysen as a
Superior Judge for the Vermont Superior Courts).12 The City of Barre cannot be liable
directly for failing to train or supervise a Vermont Superior Judge, nor can it be liable
vicariously for the Judge’s allegedly wrongful judicial acts.13
B.
Other Claims against the City of Barre
Plaintiffs’ claim that the City is vicariously liable for the allegedly wrongful acts
of Officers Kirkpatrick and Ross fails because respondeat superior is not a basis for
rendering a local government liable for constitutional violations committed by its
employees. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978)
11
The Court may rely on matters of public record in deciding a Rule 12(b)(6) motion. Pani v.
Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d Cir. 1998).
12
As Judge VanBenthuysen notes, Vermont abolished municipal courts in 1965. (See Doc. 50-1
at 7.)
13
Plaintiffs’ claims against Judge VanBenthuysen himself in his official and personal capacities
are discussed in Part IV, infra.
19
(“[A] municipality cannot be held liable under §1983 on a respondeat superior theory.”).
However, “a municipality can be held liable under Section 1983 if the deprivation of the
plaintiff’s rights under federal law is caused by a governmental custom, policy, or usage
of the municipality.” Jones v. Town of E. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing
Monell, 436 U.S. at 690–91). Plaintiffs have in fact asserted that the City of Barre
maintains a practice of depriving individuals of their liberty and property rights. (Doc. 6
at 10.) But they have included no facts to support that allegation. Plaintiffs have not
alleged that the City of Barre has formally adopted an unconstitutional policy that caused
them harm, nor have they asserted other instances of allegedly unconstitutional conduct
that would suggest a pattern or practice. Plaintiffs’ conclusory allegation of a practice of
constitutional deprivations is insufficient to defeat a motion to dismiss.
Plaintiffs also allege that the City of Barre is directly liable for failing to properly
train and supervise Kirkpatrick and Ross. Municipal liability may be “premised on a
failure to train employees when inadequate training ‘reflects deliberate indifference to . . .
constitutional rights.’” Okin v. Vill. of Cornwall-on-Hudson Police Dep’t, 577 F.3d 415,
440 (2d Cir. 2009) (quoting City of Canton, Ohio v. Harris, 489 U.S. 378, 392 (1989));
see also Jenkins v. City of New York, 478 F.3d 76, 94 (2d Cir. 2007) (citing City of
Canton, 489 U.S. at 389) (municipality’s alleged failure to train and supervise is a
permissible theory under § 1983). To prove deliberate indifference, Plaintiffs must show:
(1) that a policymaker knows to a moral certainty that her employees will
confront a given situation; (2) that the situation either presents the
employee with a difficult choice of the sort that training or supervision will
make less difficult or that there is a history of employees mishandling the
20
situation; and (3) that the wrong choice by the . . . employee will frequently
cause the deprivation of a citizen’s constitutional rights.
Okin, 577 F.3d at 440 (internal quotation omitted). “[A] plaintiff pleading failure to train
must provide more than a ‘simple recitation’ of the theory of municipal liability.”
Kucera v. Tkac, No. 5:12-CV-264, 2013 WL 1414441, at *9 (D. Vt. Apr. 8, 2013).14
Here, Plaintiffs have supplied only a bare assertion that the City of Barre failed to
train or supervise Officers Kirkpatrick and Ross. They have alleged no facts on any of
the elements of deliberate indifference. The Complaint’s simple recitation of a failure-totrain theory is insufficient and cannot survive Defendants’ motion to dismiss.
IV.
Judge VanBenthuysen’s Motion to Dismiss
Judge Howard VanBenthuysen seeks dismissal of the claims against him, asserting
Eleventh Amendment immunity, absolute judicial immunity, and failure to state a claim.
(See Doc. 50-1 at 1–2.) The Court addresses these arguments below, beginning with the
claims against Judge VanBenthuysen in his official capacity.
A.
Official-Capacity Claims
Plaintiffs’ claims against Judge VanBenthuysen in his official capacity are barred
by the Eleventh Amendment. The Eleventh Amendment bars suits in federal court for
damages against states, state agencies, and state officials acting in their official capacity,
absent the state’s consent to suit or an express or statutory waiver of immunity. See
14
In Amnesty America v. Town of West Hartford, the Second Circuit stated:“[i]t is unlikely that a
plaintiff would have information about the city’s training programs or about the cause of the misconduct
at the pleading stage, and therefore need only plead that the city’s failure to train caused the constitutional
violation.” 361 F.3d 113, 130 n.10 (2d Cir. 2004). As this Court explained in Kucera, however, Amnesty
was decided prior to Iqbal and Twombly, which require more than a simple recitation of a failure-to-train
theory of municipal liability.
21
Woods v. Rondout Valley Cent. Sch. Dist. Bd. of Educ., 466 F.3d 232, 236 (2d Cir. 2006)
(“The immunity recognized by the Eleventh Amendment extends beyond the states
themselves to ‘state agents and state instrumentalities’ that are, effectively, arms of a
state.”) (quoting Regents of the Univ. of Cal. v. Doe, 519 U.S. 425, 429 (1997)). A state
may waive its Eleventh Amendment immunity so long as the waiver is unequivocally
expressed. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 238 n.1 (1985).
Additionally, Congress may abrogate the Eleventh Amendment pursuant to Section 5 of
the Fourteenth Amendment. Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976).
Congress has not abrogated Vermont’s sovereign immunity from a § 1983 suit in federal
court, and the State of Vermont has expressly preserved its immunity under the Eleventh
Amendment. See, e.g., 12 V.S.A. § 5601(g). Moreover, the United States Supreme
Court has held that Congress did not intend to abrogate sovereign immunity by enacting
§ 1983. See Quern v. Jordan, 440 U.S. 332, 340–41 (1979).
Here, Judge VanBenthuysen’s allegedly wrongful acts were done in his official
capacity. Indeed, the Complaint explicitly states that Judge VanBenthuysen was “acting
as a duly elected official and was . . . performing his duties as a magistrate.” (Doc. 6 at
5.) Accordingly, Judge VanBenthuysen’s Motion to Dismiss Plaintiffs’ claims for
damages against him in his official capacity under § 1983 is GRANTED. The Court also
GRANTS Judge VanBenthuysen’s Motion to Dismiss Plaintiffs’ claims for damages
against him in his official capacity under §§ 1985 and 1986. See Browdy v. Karpe, 131
F. App’x 752–53 (2d Cir. 2005) (“To the extent [plaintiff] sues defendants in their
‘official capacity’ as employees of the Connecticut Public Defender Services, a state
22
agency, his §§ 1983, 1985, and 1986 claims for money damages are barred by the
Eleventh Amendment.”) (citation omitted).
B.
Personal-Capacity Claims
Plaintiffs’ claims against Judge VanBenthuysen in his personal capacity also fail.
These claims are not sufficiently stated to survive a motion to dismiss, and are barred by
the doctrine of absolute judicial immunity. “Judges are, of course, immune from liability
for damages under many circumstances.” Huminski v. Corsones, 396 F.3d 53, 74 (2d Cir.
2005). Judges enjoy this immunity because, if they were threatened with personal
liability for their judicial actions, it could prevent them from “exercis[ing] their functions
with independence and without fear of consequences.” Id. (internal quotation marks
omitted). The general rule is that, “if the relevant action is judicial in nature, the judge is
immune so long as it was not taken in the complete absence of jurisdiction.” Id. at 75.
Acts done in excess of jurisdiction are not necessarily done in the “complete” absence of
jurisdiction. See Stump v. Sparkman, 435 U.S. 349, 356–57 (1978) (“A judge will not be
deprived of immunity because the action he took was in error, was done maliciously, or
was in excess of his authority; rather, he will be subject to liability only when he has
acted in the ‘clear absence of all jurisdiction.’”) (quoting Bradley v. Fisher, 80 U.S. (13
Wall.) 335, 351 (1871)).
Before considering Plaintiffs’ specific allegations against Judge VanBenthuysen, it
is necessary to review certain facts taken from the Vermont Superior Court, Washington
23
Criminal Division’s docket sheet in an underlying matter involving David (Doc. 50-2).15
On January 5, 2012, David appeared before Judge VanBenthuysen and was arraigned on
four counts: violation of an abuse prevention order, violation of conditions of release,
resisting arrest, and impeding a public officer. (Doc. 50-2 at 1.) Judge VanBenthuysen
found probable cause on each of the four counts, and set bail in the amount of $7,500.
(Id.) Following David’s plea of not guilty, the court issued a mittimus for failure to give
bail, and committed David to custody. (Id. at 2.) Public Defender Maggie Vincent stood
in for the arraignment, and was assigned to David’s case on January 9, 2012. (Id.) On
March 15, 2012,Vincent filed a motion for bail review, and on March 21, 2012, the court
reduced the bail amount to $5,000 with a $500 deposit. (Id.) Cash bail was posted, and
David Gauthier was released subject to conditions on March 22, 2012. (Id.) On
August 29, 2012, David waived his right to counsel. (Id. at 3.) On March 8, 2013, the
State dismissed the charge stemming from the alleged violation of an abuse-prevention
order. (Id. at 4.) As of August 14, 2013, the court proceedings on the remaining three
counts were ongoing. (See id. at 5.)
The three specific allegations against Judge VanBenthuysen in the Complaint are
as follows: (1) “[Judge] VanBenthuysen communicated to [David] that [David] was
going to jail and gave no time limit”; (2) “[Judge] VanBenthuysen incarcerated [David]
15
The docket sheet is not part of Plaintiffs’ Complaint, but it is a public record and the Court
may therefore take judicial notice of it and consider it in this procedural context. See Tellabs, Inc. Makor
Issues & Rights, Ltd., 551 U.S. 308, 322 (2007) (“[C]ourts must consider the complaint in its entirety, as
well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in
particular, documents incorporated into the complaint by reference, and matters of which a court may take
judicial notice.”); Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir. 2006) (“[D]ocket sheets are
public records of which the court could take judicial notice . . . .”) (citing Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67, 75 (2d Cir. 1998)).
24
for three months and a day for charges that have been dismissed since [David’s] initial
arrest [on] Jan[uary] 4, 2012”; and (3) David “was denied [counsel], denied a complaint,
denied a speedy trial and/or the ability to make a plea.” (Doc. 6 at 8–9.) Plaintiffs’ first
allegation against Judge VanBenthuysen—that the Judge failed to give David a time limit
on his jail time—is premised on an omission rather than an action. Plaintiffs appear to
assert that Judge VanBenthuysen should have placed a time limit on David’s pretrial
detention. But Plaintiffs cite no authority to support this proposition, and the Supreme
Court has refused to quantify the speedy trial right into “a specified number of days or
months.” Vermont v. Brillon, 556 U.S. 81, 89–90 (2009). Moreover, Judge
VanBenthuysen is immune from personal liability based on this omission because his
statements (or omissions) made to David during the arraignment are undoubtedly judicial
in nature. Moreover, the omissions were not made in the absence of jurisdiction. Judge
VanBenthuysen’s refusal to set a time limit for David’s pretrial detention did not violate
David’s constitutional rights; rather, it would have been inconsistent with the speedy-trial
analysis for the Judge to attempt to state with certainty how long the detention might last.
Plaintiffs’ second allegation against Judge VanBenthuysen is that his order to
place David in jail was wrongful because at least one of the charges against David has
been dismissed. However, David’s pre-trial detention was the result of his failure to post
bail, and the Judge’s decision to set bail is indisputably a judicial act that is well within
the Superior Court’s jurisdiction. See 13 V.S.A. § 7554 (describing judge’s authority to
set conditions to assure the defendant’s appearance and to protect the public). Moreover,
the judge’s decision is based on the “available information” at the time. Id. § 7554(b).
25
Here, Judge VanBenthuysen did not know in January 2012 that one of the four charges
would be dismissed in March 2013, and even if he did, Plaintiffs have not shown why the
Judge would have been without jurisdiction to enter the same order based on the three
other charges.
Third, Plaintiffs contend that David “was denied [counsel], denied a complaint,
denied a speedy trial and/or the ability to make a plea.” (Doc. 6 at 8–9.) Each of those
alleged denials are judicial acts, and Plaintiffs’ allegations do not hint that they were
made in the absence of jurisdiction. Determining whether to assign publicly funded
counsel is a judicial act within the Superior Court’s jurisdiction. See, e.g., 13 V.S.A.
§ 5236(a) (providing that “the court shall determine, with respect to each proceeding,
whether the person is a needy person” entitled to public defender services). Moreover,
the docket sheet plainly establishes that, for all times during which Judge VanBenthuysen
was presiding over David’s case, David was in fact represented by a public defender. To
the extent that Plaintiffs are alleging that David received ineffective assistance of
counsel, that cause of action is inappropriate in a proceeding brought under § 1983.
Bourdon v. Loughren, 386 F.3d 88, 90 (2d Cir. 2004).
Plaintiffs’ allegation that Judge VanBenthuysen denied “a complaint” is unclear.
But if Plaintiffs expected the Superior Court to act to remedy some alleged wrong, that
remedial act could only have been of a judicial nature. And there is nothing in the
Complaint to suggest that Judge VanBenthuysen’s denial of Plaintiffs’ request was done
in the absence of jurisdiction. The Judge’s acts or omissions that may have caused the
alleged speedy-trial violation are also judicial acts, and are also within the Superior
26
Court’s jurisdiction. See State v. Brillon, 2008 VT 35, ¶ 4, 955 A.2d 1108, 1112, rev’d
on other grounds, 556 U.S. 81 (2009) (trial courts have ultimate control over, and
responsibility for, their own proceedings). Finally, Judge VanBenthuysen is immune
from Plaintiffs’ claim that he denied David the ability to make a plea, as the docket sheet
indisputably establishes that David entered a not guilty plea on January 5, 2012. (Doc.
50-2 at 2.) Even assuming David was unable to make a plea, hearing a defendant’s plea
is a judicial function and thus within the Superior Court’s jurisdiction.
The Complaint also alleges that Judge VanBenthuysen’s acts constitute a
conspiracy and treason. (Doc. 6 at 4.) But the Second Circuit has held that “an allegation
that an act was done pursuant to a conspiracy has no greater effect than an allegation that
it was done in bad faith or with malice, neither of which defeats a claim of absolute
immunity.” Dorman v. Higgins, 821 F.2d 133, 139 (2d Cir. 1987) (“absolute immunity
spares the [government] official any scrutiny of his motives”). And because Judge
VanBenthuysen had jurisdiction to resolve the underlying criminal case, he is entitled to
absolute judicial immunity from Plaintiffs’ claims that he committed treason based on his
actions or inactions therein. See Sibley v. Breyer, 456 F. Supp. 2d 43, 45 (D. D.C. 2006)
(holding that because they had jurisdiction to resolve plaintiff’s earlier action, the Justices
of the United States Supreme Court and three judges of the Court of Appeals were
entitled to absolute judicial immunity in an action alleging that they violated plaintiff’s
rights and committed treason by failing to recuse themselves in a prior case); see also
Gordon v. City of Hoisington, Kan., No. 07-3161-SAC, 2008 WL 347692, at *2 (D. Kan.
Feb. 7, 2008) (“[P]laintiff’s claims for damages against the state court judges are barred
27
by judicial and prosecutorial immunity notwithstanding plaintiff’s allegation of treason
by the state court judge”). Accordingly, Plaintiffs’ claims against Judge VanBenthuysen
for conspiracy and treason do not overcome the Judge’s absolute immunity.
Even if Judge Van Benthuysen were not immune, Plaintiffs have offered no more
than conclusory allegations of conspiracy and treason. Moreover, treason is a crime, see
U.S. Const. art. III, § 3; 18 U.S.C. § 2381, and Plaintiffs cannot prosecute an alleged
crime by private complaint, see Conn. Action Now, Inc. v. Roberts Plating Co., 457 F.2d
81, 86–87 (2d Cir. 1972) (“It is a truism, and has been for many decades, that in our
federal system crimes are always prosecuted by the Federal Government, not as has
sometimes been done in Anglo-American jurisdictions by private complaints.”).
Finally, Plaintiffs have failed to state a claim against Judge VanBenthuysen under
42 U.S.C. § 1985, for the same reasons stated above regarding Plaintiffs’ similar claim
against Officers Kirkpatrick and Ross, supra Part II.B. Subsections (1) and (2) of § 1985
do not apply here, and Plaintiffs have not alleged any racial or class-based discriminatory
animus, as required to state a claim under subsection (3). As also stated above, because
Plaintiffs have not stated a § 1985 claim, their § 1986 claim must also fail. See Brown v.
City of Oneonta, N.Y., 221 F.3d 329, 341 (2d Cir. 2000) (“[A] § 1986 claim must be
predicated on a valid § 1985 claim.”) (quoting Mian v. Donaldson, Lufkin & Jenrette Sec.
Corp., 7 F.3d 1085, 1088 (2d Cir. 1993) (per curiam)).
28
V.
The State Defendants’ Motion to Dismiss
All of the remaining Defendants16 except Defendant Tiffany Stark (the “State
Defendants”) move to dismiss Plaintiffs’ claims against them on the grounds of Eleventh
Amendment immunity, lack of personal involvement or failure to state a claim, absolute
prosecutorial immunity, qualified immunity, and failure to state a claim of conspiracy
under 42 U.S.C. §§ 1985 and 1986. (See Doc. 49 at 1–2.)
A.
Damages Claims against NSCF
Plaintiffs’ §§ 1983, 1985, and 1986 claims against NSCF must be dismissed on
Eleventh Amendment immunity grounds and for failure to state a claim. NSCF is an arm
of the State of Vermont, and claims for damages against it are barred by the Eleventh
Amendment. See Davis v. New York, 316 F.3d 93, 101 (2d Cir. 2002) (claims for
damages against the Attica Correctional Facility were barred by the Eleventh
Amendment). In addition, NSCF is not a “person” within the meaning of §§ 1983, 1985
and 1986. See Allison v. Calif. Adult Auth., 419 F.2d 822, 823 (9th Cir. 1969) (state
prison was not a “person” for purposes of the Civil Rights Act, including § 1985); Sweet
v. N. Neck Regional Jail, 857 F. Supp. 2d 595, 597 (E.D. Va. 2012) (dismissing
plaintiff’s § 1983 claim against a regional jail because the jail is not a “person” within the
meaning of the statute); Powell v. Cook Cnty. Jail, 814 F. Supp. 757, 758 (N.D. Ill. 1993)
(county jail was not a “person” under § 1983).
16
The remaining Defendants are: Thomas Kelly, Megan Campbell, Bonnie Goode, Raymond
Leblanc, Crista Maurice, Rick Wade, Michael Mathieu, Nicholas Fortier, Jeff Poginy, NSCF, and Tiffany
Stark.
29
B.
Official-Capacity Claims
For the same reason that Plaintiffs’ damages claims against Judge VanBenthuysen
in his official capacity must be dismissed, supra Part IV.A, Plaintiffs’ damages claims
against the individual State Defendants in their official capacities must also be
dismissed.17 As noted above, the Eleventh Amendment bars suits in federal court for
damages against states, state agencies, and state officials acting in their official capacity,
absent the state’s consent to suit or an express or statutory waiver of immunity. The State
of Vermont has not consented to suit, nor is there any express or statutory waiver of
immunity. Since the individual State Defendants are state officials, and their allegedly
wrongful acts were done in their official capacities, Plaintiffs’ damages claims against
them in their official capacities under §§ 1983, 1985, and 1986 are all barred under the
Eleventh Amendment.
C.
Personal-Capacity Claims
Before addressing the individual State Defendants’ argument against liability
under § 1983, the Court disposes of Plaintiffs’ claims against all of the State Defendants
under §§ 1985 and 1986. The analysis is the same with respect to the individual State
Defendants as it was for Officers Kirkpatrick and Ross, supra Part II.B, and for Judge
VanBenthuysen, supra Part IV.B. Subsections (1) and (2) do not apply, and Plaintiffs
have not alleged any racial or class-based discriminatory animus that would be necessary
17
It appears that the “Defendants John Does” named in the Complaint are also state employees
or agents, as they are described as “any jailor.” (Doc. 6 at 11.) The personal-capacity claims against
these “John Doe” Defendants are discussed in Part V.C.4, below.
30
to state a claim under subsection (3). Since Plaintiffs have not stated a § 1985 claim,
their § 1986 claim must also fail.
1.
State’s Attorney Kelly and Deputy State’s Attorney Campbell
Defendants Kelly and Campbell assert that dismissal of the claims against them is
proper because the Complaint does not make any specific allegation against either of
them, and because they are both entitled to absolute prosecutorial immunity. For the
reasons discussed below, the Court agrees.
The Complaint names Campbell and Kelly as Defendants, but fails to make any
specific allegations of wrongful conduct against either of them. See Davidson v. Mann,
129 F.3d 700, 701 (2d Cir. 1997) (“[T]o state a civil rights claim under § 1983, a
complaint must contain specific allegations of fact which indicate a deprivation of
constitutional rights.”). The only specific allegation against Defendant Kelly is that he
was not present in the courtroom during David’s appearance. (Doc. 6 at 9.) A state’s
attorney’s failure to attend a defendant’s appearance at a criminal proceeding does not
amount to wrongful or improper conduct, as Vermont law does not require an elected
state’s attorney to be present for every criminal proceeding.
Reading the Complaint liberally, Plaintiffs allege that Campbell was the
prosecuting attorney in the criminal proceedings commencing against David in January
2012, and made constitutional errors in those proceedings: David was allegedly “denied
[counsel], denied a complaint, [and] denied a speedy trial and/or the ability to make a
plea.” (Doc. 6 at 8–9.) To the extent Plaintiffs are arguing that the prosecution did not
offer David a plea bargain, there is no constitutional violation, as the government is not
31
required to offer any defendant a plea agreement. Weatherford v. Bursey, 429 U.S. 545,
561 (1977). The Complaint does not otherwise specify how Defendants Campbell or
Kelly might have contributed to the alleged violations. Moreover, all of Plaintiffs’
allegations against Defendants Campbell and Kelly appear to be related to their
involvement as advocates in the criminal judicial process against David, and the law
clearly provides that they are absolutely immune from these claims. See Simon v. City of
New York, 727 F.3d 167, 171 (2d Cir. 2013) (“A prosecutor acting in the role of an
advocate in connection with a judicial proceeding is entitled to absolute immunity for all
acts ‘intimately associated with the judicial phase of the criminal process.’”) (quoting
Imbler v. Pachtman, 424 U.S. 409, 430 (1976)).
2.
Troopers Leblanc and Maurice
Defendants Troopers Leblanc and Maurice argue that Plaintiffs’ claims against
them must be dismissed because the Complaint contains no allegation of wrongdoing by
either of them, and because they are entitled to qualified immunity. The Court agrees. It
appears from the Complaint that the Troopers’ role in this case was limited to being
present while Officers Kirkpatrick and Ross were leading David to a police car, and
failing to take action as David protested that his constitutional rights were being violated.
It is true that a police officer “has an affirmative duty to intercede on the behalf of
a citizen whose constitutional rights are being violated in his presence by other officers.”
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997) (quoting O’Neill v.
Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988)). “Failure to intercede to prevent an unlawful
arrest can be grounds for § 1983 liability.” Id. “To recover on that ground, of course, a
32
plaintiff must still overcome the hurdle of qualified immunity.” Id. “A police officer
cannot be held liable in damages for failure to intercede unless such failure permitted
fellow officers to violate a suspect’s ‘clearly established statutory or constitutional rights’
of which a reasonable person would have known.” Id. (quoting Harlow v. Fitzgerald,
457 U.S. 800, 818 (1982)). “Further, the failure to intercede must be under
circumstances making it objectively unreasonable for him to believe that his fellow
officers’ conduct did not violate these rights.” Id.
Here, there is no allegation in the Complaint that the Troopers had any information
about the circumstances of David’s arrest. According to the Complaint, the Troopers
were arriving on the scene as David was being led to a police car. The alleged
constitutional violations all occurred prior to that time and outside the Troopers’
presence. The Troopers observed David being led to a police car and heard his
protestation that his rights were being violated. It was not objectively unreasonable for
the Troopers to believe that Kirkpatrick and Ross’s conduct did not violate David’s
rights. Thus, the Troopers are entitled to qualified immunity, and Plaintiffs have failed to
state a claim against Troopers Leblanc and Maurice.
3.
St. Johnsbury Employees Wade, Mathieu, Fortier, and Poginy
Defendants Fortier, Mathieu, Poginy, and Wade (the “St. Johnsbury Employees”)
are apparently corrections officers or employees at the Northeast Regional Correctional
Facility in St. Johnsbury. Reading the Complaint in the light most favorable to Plaintiffs,
Plaintiffs allege that the St. Johnsbury Employees told David that he could not be given
anything to eat if he did not sign certain paperwork. Plaintiffs have failed to offer
33
sufficient factual allegations to raise a right to relief. Coercing an inmate into signing
documents does not amount to cruel and unusual punishment. Davis v. Commonwealth,
No. 06-4952, 2007 WL 788828, at *4 (E.D. Pa. Mar. 12, 2007). This type of coercion is
more properly analyzed under the Due Process Clause. See id. But even accepting as
true the allegation that David was coerced into signing a document, it does not follow that
his due-process rights were violated. See Harris v. Doherty, No. 97-30095, 1997 WL
574819, at *1 (5th Cir. Aug. 18, 1997) (per curiam) (summarily affirming conclusion that
prisoner’s due-process rights were not violated when he was forced to sign a legal
document before his admission to a halfway house as a special condition of his
supervised release). The Complaint does not indicate the nature of the document that
David was allegedly coerced into signing, and does not state any facts suggesting that he
suffered any deprivation of life, liberty, or property as a consequence of the signing.18
Plaintiffs have therefore failed to state a claim against Defendants Wade, Mathieu,
Fortier, and Poginy.
18
At the November 13, 2013 hearing, David explained that he objected to signing the paperwork
because doing so would violate his oath as a “free sovereign.” The Second Circuit has described
“sovereign citizens” as “a loosely affiliated group who believe that the state and federal governments lack
constitutional legitimacy and therefore have no authority to regulate their behavior.” United States v.
Ulloa, 511 F. App’x 105, 107 n.1 (2d Cir. 2013). Sovereign citizens apparently also believe that, by
entering into contracts with the federal government or by receiving benefits from it, they lose their
birthright of sovereign citizenship. Francis X. Sullivan, Comment, The “Usurping Octopus of
Jurisdictional/Authority”: The Legal Theories of the Sovereign Citizen Movement, 1999 Wis. L. Rev.
785, 798 (1999). The “sovereign citizen” ideology has been described by other courts as “completely
without merit,” “patently frivolous,” United States v. Jagim, 978 F.2d 1032, 1036 (8th Cir. 1992), and
having “no conceivable validity in American law,” United States v. Schneider, 910 F.2d 1569, 1570 (7th
Cir. 1990). The Court therefore concludes that, to the extent David’s claims are premised on his rights as
a “free sovereign,” they fail.
34
4.
John Does
Although not listed in the Complaint’s caption, Plaintiffs assert that “John Does”
failed to allocate sufficient food to David and failed to provide David with medical
treatment. (Doc. 6 at 11, ¶ 27.) The Court presumes that the John Does were employees
or officers at NSCF during David’s 88-day incarceration there. The John Does are
apparently the individuals who denied David his mental health medication for three
weeks, and denied him a special diet to accommodate his fish allergy.
The Attorney General suggests that, to the extent that the John Does are state
actors, any claims against them should be dismissed because the pseudonyms do not
appear in the caption of the Complaint as required by Fed. R. Civ. P. 10(a). The Court
rejects that argument. “Although Rule 10(a) of the Federal Rules of Civil Procedure
requires that every party to an action be named in a complaint’s caption, the caption itself
is normally not determinative of the identity of the parties or of the pleader’s statement of
claim.” Heicklen v. U.S. Dep’t of Homeland Sec., No. 10 Civ. 2239(RJH)(JLC), 2011
WL 3841543, at *10 n.12 (S.D.N.Y. Aug. 30, 2011).19
The Attorney General does not seek dismissal of the claims against the John Does
on any basis other than Rule 10(a). The Court may not dismiss an action for failure to
state a claim based upon grounds not raised or briefed by the parties. See Volvo N.A.
Corp. v. Men’s Int’l Prof’l Tennis Council, 857 F.2d 55, 65 (2d Cir. 1988). However, in
19
This Court finds Gilhooly v. Armstrong unpersuasive insofar as it held that failure to list John
Does in the caption—but referred to elsewhere in the complaint—meant that they were not defendants in
the case. No. 3:03 CV 1798 MRK WIG, 2006 WL 322473, at *2 (D. Conn. Feb. 9, 2006). In any event,
the result in that case was not dismissal of the claims against the John Does, but rather denial of the
motion to dismiss the claims as moot. Id.
35
their Motion to Dismiss, Officers Kirkpatrick and Ross asserted that, assuming they were
responsible for withholding medication or pushing a fish diet, the circumstances do not
rise to the level of a serious medical condition. (See Doc. 34 at 11.) The Court therefore
concludes that the objective component of the Eighth Amendment analysis has been
raised and briefed—even if not by the Attorney General—and that it is proper for the
Court to consider it. Cf. United States v. Mojac Constr. Corp., 190 F. Supp. 622, 631
(E.D.N.Y. 1960) (where reasons for summary judgment for some cross-claim defendants
were equally applicable to other cross-claim defendants who had not moved for summary
judgment, no purpose would be served in requiring them to move specially for
judgment); see also, e.g., Gray v. Bagley, Civil No. JFM-11-1117, 2011 WL 8227134, at
*1 (D. Md. July 28, 2011) (granting defendants’ motion to dismiss, including claims
against non-moving defendant who had not been served).
As noted above, because David was a pretrial detainee at the time of the alleged
deprivations, the Due Process Clause of the Fourteenth Amendment—rather than the
Eighth Amendment—applies here. But the distinction makes no difference because the
analysis is the same under either Amendment. See Caiozzo v. Koreman, 581 F.3d 63, 70–
71 (2d Cir. 2009). In Estelle v. Gamble, the United States Supreme Court determined
that “deliberate indifference to serious medical needs of prisoners constitutes the
‘unnecessary and wanton infliction of pain’ proscribed by the Eighth Amendment.” 429
U.S. 97, 104 (1976) (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)). A prisoner
must therefore demonstrate both that the alleged deprivation is, in objective terms,
“sufficiently serious,” and that, subjectively, the defendant is acting with a “sufficiently
36
culpable state of mind.” Hathaway v. Coughlin, 37 F.3d 63, 66 (2d Cir.1994). Both the
objective and subjective components must be satisfied in order for a plaintiff to prevail.
Hathaway v. Coughlin, 99 F.3d 550, 553 (2d Cir. 1996). Estelle’s requirement applies to
psychiatric and mental health care as well as physical health care. Langley v. Coughlin,
888 F.2d 252, 254 (2d Cir. 1989).
Under the objective component, in assessing whether a medical condition is
“sufficiently serious,” the Court considers all relevant facts and circumstances, including
whether a reasonable doctor or patient would consider the injury worthy of treatment, the
impact of the ailment upon an individual’s daily activities, and the severity and
persistence of pain. See Chance v. Armstrong, 143 F .3d 698, 702 (2d Cir.1998). “The
absence of adverse medical effects or demonstrable physical injury is one such factor that
may be used to gauge the severity of the medical need at issue.” Smith v. Carpenter, 316
F.3d 178, 187 (2d Cir. 2003). A serious medical condition exists where the failure to
treat a prisoner’s condition could result in further significant injury or the unnecessary
and wanton infliction of pain. Chance, 143 F.3d at 702. The Second Circuit has held
that the alleged deprivation must be “sufficiently serious, in the sense that a condition of
urgency, one that may produce death, degeneration, or extreme pain exists.” Hemmings
v. Gorczyk, 134 F.3d 104, 108 (2d Cir.1998). Where, as here, a prisoner claims a
temporary delay or interruption in the provision of otherwise adequate medical treatment,
“it is appropriate to focus on the challenged delay or interruption in treatment rather than
the prisoner’s underlying medical condition alone” in performing the objective analysis.
Smith, 316 F.3d at 185.
37
Plaintiffs’ conclusory statement that David suffered “starvation” as a result of not
being able to eat the fish served at NSCF is not sufficient to avoid dismissal. It is true
that “under certain circumstances a substantial deprivation of food may well be
recognized as being of constitutional dimension.” Robles v. Coughlin, 725 F.2d 12, 15
(2d Cir. 1983) (per curiam). Allegations that would be sufficient to survive a motion to
dismiss include assertions that an inmate was served only one meal a day, or was
deprived of all food for four consecutive days. Id. at 15–16. The allegations in this case
fall short of such deprivations. There is no suggestion that fish was the only food served
at meals. Even assuming that fish was frequently part of the menu, Plaintiffs have not
alleged that David’s medical need to forego eating the fish that was served resulted in
death, degeneration, or extreme pain. See Williams v. Lamas, No. 08-5520RJB/JRC,
2009 WL 1615525, at *3 (W.D. Wash. June 9, 2009) (granting motion to dismiss because
inmate, who had potentially fatal fish allergy, did not allege any serious physical or
emotional injury as a result of the decision not to provide a no-fish alternative).
As to Plaintiffs’ claim regarding the deprivation of medication, since a mental
health facility prescribed medication to David, the Court presumes that he had been
diagnosed with and suffered from serious underlying mental health conditions. Of
course, the focus for present purposes is not on the underlying conditions but on the
effect of the interruption in treating them. Plaintiffs do not allege any consequences
stemming from the denial of David’s mental health medication; the only allegation is that
David was deprived of the medication for three weeks. Plaintiffs have not alleged that
David’s symptoms presented an urgent situation that might produce death, degeneration,
38
or extreme pain. See Bellotto v. Cnty. of Orange, 248 F. App’x 232, 237 (2d Cir. 2007)
(risk of harm was not substantial where alleged missed medication dosages and
inadequate monitoring of medications resulted in an anxiety attack but no physical
injuries or “acute distress”); Hamm v. Hatcher, No. 05 Civ. 403(ER), 2013 WL 71770, at
*9 (S.D.N.Y. Jan. 7, 2013) (no significant risk of serious harm where delay in access to
medication allegedly resulted in “exacerbated depression, nightmares, hopelessness, and
suicidal thoughts”). Plaintiffs have presented no evidence that, without his medication,
David’s underlying mental health conditions worsened, he suffered an acute or extreme
mental health consequence, or he was in immediate danger of doing physical harm to
himself. To the extent that Edward alleges similar deprivations of medication, his claim
fails for the same reasons.
5.
Defendant Goode
Plaintiffs assert that Defendant Bonnie Goode’s decision not to remove David’s
name from the Vermont Sex Offender Registry “constitutes a legal judgment against
[David]” and is a “clear violation of the Right to a fa[ir] trial.” (Doc. 6 at 11.) Goode
maintains that Plaintiffs have failed to state a claim on these grounds, and that she is
entitled to qualified immunity.
“The right to a fair trial is guaranteed to state criminal defendants by the Due
Process Clause of the Fourteenth Amendment.” Ramchair v. Conway, 601 F.3d 66, 73
(2d Cir. 2010) (quoting Cone v. Bell, 556 U.S. 449, 451 (2009)) (alterations omitted).
“While ‘[t]he Constitution guarantees a fair trial through the Due Process Clauses, . . . it
defines the basic elements of a fair trial largely through the several provisions of the
39
Sixth Amendment.’” Id. (quoting United States v. Gonzalez-Lopez, 548 U.S. 140, 146
(2006)). Here, Goode’s refusal to remove David’s name from the Vermont Sex Offender
Registry was neither a “trial” nor a court “judgment.” At best, Plaintiffs attempt to assert
a due-process claim—not arising out of an unfair trial, but out of Goode’s allegedly
improper decision to retain David’s name on the Vermont Registry.
Plaintiffs’ § 1983 claims against Goode fail because Vermont provides adequate
post-deprivation proceedings in the form of an administrative process for individuals who
believe they are improperly on the Registry. The Complaint does not suggest that
Goode’s refusal to remove David from the Registry was part of any established state
procedure. Rather, reading the Complaint liberally, it alleges that Goode’s refusal to do
so was a random and unauthorized act.20 In that circumstance, the Due Process Clause is
not violated as long as the State provides a “meaningful post[-]deprivation remedy.”
Hellenic Am. Neighborhood Action Comm. v. City of New York, 101 F.3d 877, 880 (2d
Cir. 1996).
The State of Vermont provides a post-deprivation remedy for individuals who
believe they are improperly on the Registry or the Vermont Sex Offender Registry web
site:
An individual who believes that he or she is improperly on the sex offender
registry or on the Vermont Sex Offender Registry Web Site, or who
believes that incorrect information is included in the registry or on the
Vermont Sex Offender Registry Web Site may challenge his or her status
by contacting the Director [of the Vermont Crime Information Center] in
20
It is unclear how a document from Maine could compel a Vermont official to remove an
individual’s name from the Vermont Registry. But the Court assumes for present purposes that Goode’s
refusal to remove David’s name from the Registry was unauthorized.
40
writing. The Director, or his or her designee, in cooperation with DOC,
shall investigate the alleged discrepancy within 3 business days of receipt
of notification. The Director is limited to correcting clerical errors,
reviewing orders from the Court, confirming the identity of registrants and
researching matters of law.
Code of Vt. Rules 28-050-002, § 5.1 (2013), available at http://www.lexisnexis.com/
hottopics/codeofvtrules (click “I Agree” and navigate to “Agency 28,” then to “SubAgency 050,” and then “Chapter 002”; click on the “28 050 002” hyperlink).21
Moreover, judicial review of the Director’s determination is potentially available under
V.R.C.P. 75. The Court concludes that this remedy is meaningful, and Plaintiffs have
therefore failed to state a claim against Goode for any due-process violation.
VI.
Attorney’s-Fees Claim under 42 U.S.C. § 1988
Several Defendants maintain that, even if Plaintiffs prevail on any of their claims,
they would not be entitled to recover attorney’s fees under 42 U.S.C. § 1988 because pro
se plaintiffs who are not lawyers are not entitled to such fees under that provision. (Doc.
34 at 8–9; Doc. 49 at 4 n.4.) The Court concurs, see Kay v. Ehrler, 499 U.S. 432, 435
(1991) (cases holding that a pro se litigant who is not a lawyer is not entitled to attorney’s
21
The cited Rule is in accordance with 13 V.S.A. § 5402(c), which authorizes the Vermont
Departments of Corrections and of Public Safety to adopt rules to implement the provisions of Vermont
law concerning sex offender registration. A similar notice appears on the Vermont Criminal Information
Center’s website:
An individual who believes that they are not required to have their information posted on
the Vermont Sex Offender Registry web site, or who believes the information on the web
site contains errors, may challenge their status by contacting the Director of the Vermont
Criminal Information Center in writing clearly identifying themselves, the information in
question and the reason the information is in error. The Director, or a designee, will
investigate and resolve the alleged discrepancy within three (3) business days of receipt
of the complaint.
Vermont Criminal Information Center, Internet Information, http://vcic.vermont.gov/sex_offender/
internet (last visited Nov. 25, 2013).
41
fees were correctly decided),22 and thus concludes that Plaintiffs’ § 1988 claims against
all Defendants should be dismissed.
VII.
Leave to Amend
The Second Circuit has cautioned that district courts should not dismiss pro se
complaints with prejudice without granting leave to amend at least once “when a liberal
reading of the complaint gives any indication that a valid claim might be stated.”
Thompson v. Carter, 284 F.3d 411, 416 (2d Cir. 2002) (internal quotation marks
omitted); see also Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave when
justice so requires.”). Nonetheless, leave to amend may be denied in certain
circumstances, including futility or “repeated failure to cure deficiencies by amendments
previously allowed.” Ruotolo v. City of New York, 514 F.3d 184, 191 (2d Cir. 2008)
(internal quotation marks omitted).
Here, Plaintiffs have not previously amended their Complaint, and it is possible
that better pleading might cure some of the problems with Plaintiffs’ claims. The Court
will therefore grant leave to amend. Any amended filing shall be entitled “Amended
Complaint” and must contain all claims against all parties as it will supersede the original
Complaint in all respects.23 An Amended Complaint, if any, shall be filed within 30 days
of the filing of this Opinion and Order. Failure to amend will result in the dismissal with
prejudice of all claims that are the subject of the pending Motions (Docs. 34, 35, 49, 50).
22
The holding in Kay was that even a pro se litigant who is a lawyer is not entitled to attorney’s
fees under § 1988. Id. at 438.
23
Consistent with Fed. R. Civ. P. 10(a) and the discussion in Part V.C.4 above, Plaintiffs should
include the “John Does” in the caption of any Amended Complaint if Plaintiffs intend to maintain claims
against those individuals.
42
Conclusion
Defendants Troy Kirkpatrick and Weiland Ross’s Motion for Partial Dismissal
(Doc. 34) is GRANTED. Defendant the City of Barre’s Motion to Dismiss (Doc. 35) is
GRANTED. The State Defendants’ Motion to Dismiss (Doc. 49) is GRANTED.
Defendant Judge Howard VanBenthuysen’s Motion to Dismiss (Doc. 50) is GRANTED.
Plaintiffs are allowed 30 days to file an Amended Complaint. Failure to so amend will
result in the dismissal with prejudice of all claims that are the subject of the pending
Motions (Docs. 34, 35, 49, 50).
Dated at Burlington, in the District of Vermont, this 9th day of December, 2013.
/s/ John M. Conroy
.
John M. Conroy
United States Magistrate Judge
43
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