Sage v. City of Winooski et al

Filing 37

OPINION AND ORDER granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim, motion is GRANTED with respect to pltf's tort claims and is otherwise DENIED; granting in part and denying in part as moot 14 Motion to D ismiss for Failure to State a Claim, motion is GRANTED as to the ADA & Rehabilitation Act claims brought against dft Noke in his individual and official capacities, although his request for dismissal of ADA & Rehabilitation Act claims on the grounds argued by the City is DENIED AS MOOT; granting in part and denying in part 17 Motion to Amend/Correct Complaint in accordance with all rulings set forth in this order. Signed by Judge William K. Sessions III on 3/22/2017. (jam)

UNITED STATE DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
DORIS SAGE, as limited
guardian of her son,
ISAAC SAGE,
Plaintiff,
v.
CITY OF WINOOSKI, through
its Police Department, and
JASON NOKES in both his
individual and official
capacities,
Defendants.

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Case No. 2:16-cv-116

OPINION AND ORDER
Plaintiff Doris Sage, as the mother and personal
representative of Isaac Sage, brings this action claiming that a
Winooski police officer wrongfully shot her mentally-ill son in
2013.

Defendants City of Winooski and Corporal Jason Nokes have

filed motions to dismiss certain counts in the Complaint.
Sage has moved to amend her Complaint.

Ms.

All motions are opposed.

For the reasons set forth below, the pending motions are each
granted in part and denied in part.
Factual Background
For purposes of the pending motions to dismiss, the facts
alleged in the Complaint will be accepted as true.

At 1:40 p.m.

on April 25, 2013 Corporal Jason Nokes and Officer Chris
MacHavern of the Winooski Police Department responded to a report
of a person trespassing at the Woolen Mill Health Club in

Winooski.

That person was Isaac Sage, a Winooski resident with a

long history of mental health issues.
When the officers arrived at the scene, they were told by
health club employees that Mr. Sage had left the property at
their request.

The employees nonetheless asked the officers to

serve him with a notice of trespass.

The officers then returned

to their cruisers and began to search for Mr. Sage.
At 1:46 p.m., Corporal Nokes notified police dispatch that
he had spotted Mr. Sage on West Allen Street.

The Complaint

alleges that Mr. Sage was walking to the Winooski Police
Department to report mistreatment by health club staff.

Officer

MacHavern arrived at the West Allen Street location, saw Corporal
Nokes speaking with Mr. Sage, and exited his cruiser.
When Corporal Nokes asked Mr. Sage for identification, Mr.
Sage responded that Corporal Nokes should already know him as a
resident of Allen House.

The Complaint describes Allen House as

“a residence owned and operated by the Howard Center . . . for
persons with chronic and persistent serious mental illness.”
No. 1 at 3, ¶ 3.

ECF

Plaintiff asserts that Winooski police are

occasionally called to Allen House to address disturbances, and
that the reference should have alerted the police officers that
Mr. Sage was mentally disabled.
When Mr. Sage declined to provide identification, Corporal
Nokes asked if he preferred to be arrested and proceeded to open

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a handcuff case.

Seeing the handcuff case, Mr. Sage struck

Corporal Nokes in the face, causing Corporal Nokes to back away
and move toward his cruiser.

Officer MacHavern grabbed Mr. Sage,

but Mr. Sage was able to spin away.

Officer MacHavern then

deployed his Taser and shot Mr. Sage with two Taser barbs.

When

the first Taser cartridge had no effect, Officer MacHavern fired
the Taser a second time.

At that point Mr. Sage was flailing,

and Officer MacHavern moved toward him to deploy his Taser in
“drive stun” mode.
Before Officer MacHavern could again deploy his Taser,
Corporal Nokes, who was ten to fifteen feet away from Mr. Sage,
fired his service weapon and hit Mr. Sage in the leg.

The

Complaint alleges Mr. Sage was not moving toward either officer
when he was shot.

Mr. Sage fell to the ground and was taken to

the hospital for treatment.

He was later transported to the

Vermont State Police barracks in Williston.
Immediately after the incident, Corporal Nokes told Officer
MacHavern that he thought Mr. Sage was holding a knife at the
time of the shooting.

Corporal Nokes subsequently made similar

statements to other officers.

According to the Complaint,

however, Corporal Nokes later admitted that he did not see
anything in Mr. Sage’s hand, and a subsequent investigation
determined that Mr. Sage had not been carrying a weapon.
In addition to suing Corporal Nokes, the Plaintiff has

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brought claims against the City of Winooski for negligent hiring,
training, and retention.

In support of the negligent retention

claim, the Complaint alleges that Corporal Nokes has “a
substantial history of malfeasance, dishonesty and character
weakness,” including a 2008 drunk driving incident.
Procedural Background
The Complaint consists of five causes of action: (1)
unreasonable use of deadly force in violation of the Fourth and
Fourteenth Amendments; (2) failure to provide reasonable
accommodations in violation of Section 504 of the Rehabilitation
Act; (3) failure to provide reasonable accommodations in
violation of the Americans with Disabilities Act (“ADA”); (4)
intentional tort claims of assault, battery, and intentional
infliction of emotional distress; and (5) negligent hiring,
training, and retention by the City of Winooski.

For relief, the

Complaint seeks compensatory damages, punitive damages, and
attorneys fees and costs.
Currently pending before the Court are motions to dismiss
filed by the City of Winooski and Corporal Nokes.

The City’s

motion argues for dismissal of the ADA and Rehabilitation Act
claims for failure to state a claim, and for the dismissal of all
state law tort claims on the basis of municipal immunity.
Corporal Nokes moves to dismiss only the ADA and Rehabilitation
Act claims.

Plaintiff has since moved for leave to file an

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Amended Complaint, with the primary amendment being an additional
cause of action under the Vermont Fair Housing and Public
Accommodations Act.

The motion to amend is opposed.
Discussion

I.

Motions to Dismiss
A.

Legal Standard

Defendants’ motions are each filed pursuant to Fed. R. Civ.
P. 12(b)(6), which permits the Court to dismiss a complaint that
“fail[s] to state a claim upon which relief can be granted.”
When ruling on such a motion, the Court must “‘accept all
allegations in the complaint as true and draw all inferences in
the non-moving party’s favor.’”

LaFaro v. New York

Cardiothoracic Grp., PLLC, 570 F.3d 471, 475 (2d Cir. 2009)
(quoting Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300
(2d Cir. 2003)).

To survive a Rule 12(b)(6) motion, a complaint

must plead “enough facts to state a claim to relief that is
plausible on its face.”
544, 570 (2007).

Bell Atl. Corp. v. Twombly, 550 U.S.

“A claim has facial plausibility when 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)

(citation omitted).
B.

The City’s Motion to Dismiss

i.

Application of Disability Laws to Arrests
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The City first argues that the ADA and Section 504 of the
Rehabilitation Act may not apply to arrests.

Title II of the ADA

prohibits any public entity from discriminating against
“qualified individual[s]” with disabilities “in the provision or
operation of public services, programs, or activities.”
Tennessee v. Lane, 541 U.S. 509, 517 (2004).

To prove a

violation of Title II of the ADA, a plaintiff must demonstrate:
“(1) that he is a ‘qualified individual’ with a disability; (2)
that he was excluded from participation in a public entity’s
services, programs or activities or was otherwise discriminated
against by a public entity; and (3) that such exclusion or
discrimination was due to his disability.”
340 F.3d 27, 34–35 (2d Cir. 2003).1

Hargrave v. Vermont,

The purpose of the Act is to

“eliminate discrimination on the basis of disability and ensure
evenhanded treatment between the disabled and the able-bodied.”
Doe v. Pfrommer, 148 F.3d 73, 82 (2d Cir. 1998).
The Second Circuit “has not addressed the issue of whether
an arrest itself is a ‘program, service or activity’ under the
1

Since “[t]hese requirements apply with equal force to
plaintiffs’ Rehabilitation Act claims,” courts generally analyze the
claims in tandem. Id. at 35; see Powell v. Nat’l Bd. of Med. Exam’rs,
364 F.3d 79, 85 (2d Cir. 2004) (“Since the standards adopted by Titles
II and III of the ADA are, in most cases, the same as those required
under the Rehabilitation Act, . . . we consider the merits of these
claims together.”); Henrietta D. v. Bloomberg, 331 F.3d 261, 273 (2d
Cir. 2003) (“[U]nless one of those subtle distinctions [between the
Rehabilitation Act and the ADA] is pertinent to a particular case, we
treat claims under the two statutes identically.”). Accordingly, the
Court’s analysis of Plaintiff’s ADA claim incorporates the
Rehabilitation Act claims as well.

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ADA.”

Ryan v. Vermont State Police, 667 F. Supp. 2d 378, 386 (D.

Vt. 2009).2
question.

The Supreme Court recently declined to resolve the
See City and Cty. of San Francisco v. Sheehan, 135 S.

Ct. 1765, 1773 (2015).
Other courts have considered the ADA’s application to
arrests and “generally found that Title II applies, but the
reasonableness of the accommodation required must be assessed in
light of the totality of the circumstances of a particular case.”
Williams v. City of New York, 121 F. Supp. 3d 354, 365 (S.D.N.Y.
2015) (citations omitted); see also Sheehan v. City and Cty. of
San Francisco, 743 F.3d 1211, 1217 (9th Cir. 2014) (joining the
“majority of circuits” in holding that the ADA applies to police
interactions), rev’d in part on other grounds, cert. dismissed in
part sub nom. City & Cty. of San Francisco v. Sheehan, 135 S. Ct.
1765 (2015).

Courts have also recognized two types of claims:

(1) wrongful arrest, where a suspect is arrested because police
misperceived the effect of his disability as criminal activity,
and (2) a failure to provide reasonable accommodations, “where
police properly arrest a suspect but fail to reasonably
accommodate his disability during the investigation or arrest,
causing him to suffer greater injury or indignity than other

2

The term “arrest” is often construed broadly in this context
to include not only arrests themselves, but also pre-arrest
investigations and confrontations with arrestees. See, e.g., Hainze
v. Richards, 207 F.3d 795, 800 n.28 (5th Cir. 2000); Gohier v.
Enright, 186 F.3d 1216, 1220 n.2 (10th Cir. 1999).

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arrestees.”

Ryan, 667 F. Supp. at 387 (citations omitted).

This

case alleges a lack of reasonable accommodation, and the Court
will follow the majority position and apply the ADA to the facts
presented in the Complaint.
In addition to arguing that the ADA and other discrimination
statutes may not apply to police interactions, Defendants contend
that even assuming such applications, Plaintiff’s claims should
be dismissed.

Defendants first argue that Plaintiff does not

allege sufficient facts to show that Mr. Sage is disabled.

The

ADA defines “disability” as “(A) a physical or mental impairment
that substantially limits one or more of the major life
activities of such individual; (B) a record of such an
impairment; or (C) being regarded as having such an impairment.”
42 U.S.C. § 12102(1).

The regulations implementing the ADA set

forth examples of such major life activities, which include:
“functions such as caring for oneself, performing manual tasks,
walking, seeing, hearing, speaking, breathing, learning, and
working.”

29 C.F.R. § 130.2(I).

The Complaint asserts that Mr. Sage has “a longstanding
history of mental health issues, which have at times been
sufficiently severe to warrant involuntary commitment to a
psychiatric institution.”

The Complaint also alleges that Mr.

Sage has been found incompetent to stand trial in a criminal
case.

While these allegations do not identify specific life

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activities, they imply serious mental health issues that have
prevented Mr. Sage from managing himself in society.

Indeed, it

is his mother, Doreen Sage, who has been granted legal guardian
status to bring this action on his behalf.

The Court will

therefore infer, for purposes of the pending motions, that Mr.
Sage suffers from mental disabilities sufficient to bring him
within the protections of the ADA.

See generally In re

Scholastic Corp. Securities Litigation, 252 F.3d 63, 69 (2d Cir.
2001) (holding that on a motion to dismiss, courts must “draw[]
all reasonable inferences in favor of plaintiffs.”).
Defendants next argue that Mr. Sage was not entitled to ADA
protection because he presented a direct threat.

Federal

regulations do “not require a public entity to permit an
individual to participate in or benefit from the services,
programs, or activities of that public entity when that
individual poses a direct threat to the health or safety of
others.”

28 C.F.R. § 35.139(a).

Most often applied in the

employment context, “[t]he term direct threat means a significant
risk to the health or safety of others that cannot be eliminated
by a modification of policies, practices, or procedures or by the
provision of auxiliary aids or services.”
12182(B)(3).

42 U.S.C.A. §

It is the defendant’s burden to establish that a

plaintiff poses a direct threat of harm to others.
F.3d at 35.

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Hargrave, 340

The facts presented here involve a mentally-ill individual
accused of trespassing who became violent only after being
threatened with arrest and shown a handcuff case.

Again making

all reasonable inferences in the Plaintiff’s favor, the violent
behavior could arguably have been avoided if the officers had
acknowledged and accommodated Mr. Sage’s mental illness.
Moreover, the pleadings suggest a potential question of fact as
to whether, and to what extent, Mr. Sage presented a danger to
the officers at the time of the shooting.

Accordingly, the Court

will not, at this early stage in the case, dismiss on the basis
of Defendants’ “direct threat” defense.
Defendants also argue that Plaintiff’s ADA claim fails
because Mr. Sage never made a demand for accommodations.

The

Second Circuit has held, however, that reasonable accommodations
are required if the disability is obvious.

See Brady v. Wal-Mart

Stores, Inc., 531 F.3d 127, 135 (2d Cir. 2008) (holding that “an
employer has a duty reasonably to accommodate an employee’s
disability if the disability is obvious——which is to say, if the
employer knew or reasonably should have known that the employee
was disabled”).

Here, the Complaint alleges that Mr. Sage’s

reference to Allen House should have communicated to the police
that they were dealing with a mentally ill person.

Accepting

that allegation as true, Mr. Sage was not required to request an
accommodation when approached by the police.

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Defendants further argue that Mr. Sage has failed to
identify what accommodations should have been made.

The most

specific allegation in this regard is found in the proposed
Amended Complaint, albeit in a newly-asserted claim under the
state law analog to the ADA: the Vermont Fair Housing and Public
Accommodations Act, 9 V.S.A. §§ 4501 et seq. (“VFHPAA”).

The

VFHPAA claim alleges that Corporal Nokes should have provided
reasonable accommodations by “not laying his hands on Mr. Sage”
and instead contacting a Howard Center counselor “who was no more
than several hundred yards away from the scene of the incident.”
ECF No. 17-1 at 21, ¶ 80.
The Ninth Circuit, in a factually similar case, addressed
this same question of whether the pleadings adequately asserted
accommodations that should have been made by police.
Sheehan, 743 F.3d at 1216.

See

In Sheehan, a mentally-ill person was

threatening police with a knife.

The court explained that while

the plaintiff bore “the initial burden of producing evidence of
the existence of a reasonable accommodation,” she had met her
burden at the motion to dismiss stage by asserting that “the
officers should have respected her comfort zone, engaged in
non-threatening communications and used the passage of time to
defuse the situation rather than precipitating a deadly
confrontation.”

Id. at 1233.

Here, Mr. Sage alleges that the police could have

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accommodated him by avoiding physical contact and calling a
nearby mental health counselor.

As in Sheehan, these allegations

are sufficient to overcome the City’s motion to dismiss under
Rule 12(b)(6).

The City’s motion to dismiss Mr. Sage’s ADA and

Rehabilitation Act claims is therefore denied.
ii.

Municipal Immunity from Tort Claims

The City next contends that it is immune from Plaintiff’s
state law tort claims.3

Those claims include both the

intentional torts alleged in the fourth Count of the Complaint,
and the claims of negligent hiring, training, and retention.

By

asserting that the City “aided and abetted” Corporal Nokes, ECF
No. 1 at 20, ¶ 78, Plaintiff seeks to hold the City liable for
Corporal Nokes’s alleged misconduct.
Under Vermont law, a municipality can sometimes assert
immunity from claims of liability for an employee’s actions.

See

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

3

The Court has supplemental jurisdiction over Plaintiff’s state
law claims pursuant to 28 U.S.C. § 1367(a) and is required to apply
Vermont law to substantive issues. See Promisel v. First Am.
Artificial Flowers, Inc., 943 F.2d 251, 257 (2d Cir. 1991) (“In
applying pendent jurisdiction, federal courts are bound to apply state
substantive law to the state claim.”).

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Specifically, the Vermont Supreme Court has held that
“[m]unicipal immunity protects municipalities ‘from tort
liability in cases where the municipality fulfills a governmental
rather than a proprietary function.’”

Sobel v. City of Rutland,

2012 VT 84, ¶ 14, 192 Vt. 538, 60 A.3d 625 (quoting Courchesne v.
Town of Weathersfield, 2003 VT 62, ¶ 9, 175 Vt. 585, 830 A.2d 118
(mem.)).

Vermont courts have also determined that police work is

a governmental function.

See, e.g., Franklin Cty. Sheriff’s

Office v. St. Albans City Police Dep’t, 2012 VT 62, ¶ 12, 192 Vt.
188, 196, 58 A.3d 207, 214 (“[T]he provision of police services
in Vermont occurs outside the realm of commerce because it
involves no interchange of goods or commodities on the open
market.

It is a government function provided only by

governmental entities for the benefit of the public.”); Carty’s
Adm’r v. Vill. of Winooski, 62 A. 45, 46 (Vt. 1905) (“One of the
powers of government inherent in every sovereignty is the
governing and regulating of its internal police.”); see also
Decker, 126 F. Supp. 2d at 346 (“[T]here can be little question
that police work is a quintessential governmental function.”).
Accordingly, the City’s hiring, training and supervision of
Corporal Nokes was a purely government function, and it cannot be
held liable for his allegedly-tortious actions.
Plaintiff also claims that the City is liable for its own
conduct in the form of grossly negligent hiring, training and
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retention.

Municipal immunity again applies, as this and other

courts have consistently held that training and supervision of
police officers are governmental functions and, as such, cannot
be grounds for tort liability.

See, e.g., MacLeod v. Town of

Brattleboro, 2012 WL 5949787, at *21 (D. Vt. Nov. 28, 2012)
(“Most courts, including this one, have concluded that training
police officers and evaluating their conduct both fall within the
governmental function of police work.”) (citations omitted).
Plaintiff’s tort claims against the City of Winooski are
therefore dismissed.
C.

Corporal Nokes’s Motion to Dismiss

Corporal Nokes has moved to dismiss the claims brought
against him under the ADA and the Rehabilitation Act, arguing
that those claims cannot be maintained against him in his
individual capacity.

The Second Circuit has made clear that

“neither Title II of the ADA nor § 504 of the Rehabilitation Act
provides for individual capacity suits against state officials.”
Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98,
107 (2d Cir. 2001).

All individual capacity claims brought

against Corporal Nokes under the ADA and the Rehabilitation Act
are dismissed.
Corporal Nokes also submits that he cannot be sued for
damages in his official capacity.

“Within the Second Circuit,

where a plaintiff names both the municipal entity and an official
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in his or her official capacity, district courts have
consistently dismissed the official capacity claims as
redundant.”

Phillips v. Cty. of Orange, 894 F. Supp. 2d 345, 385

(S.D.N.Y. 2012) (collecting cases).

Vermont law dictates that,

with the exception of willful or intentional acts, claims for
acts or omissions of a municipal employee must be brought against
the municipality itself.

24 V.S.A. § 901a(b), (e).

In light of

these principles, the Court will consider Plaintiff’s claims
against Corporal Nokes in his official capacity as claims brought
against the City of Winooski, and the official capacity claims
with respect to Corporal Nokes himself are dismissed.
Finally, Corporal Nokes requests dismissal of the ADA and
Rehabilitation Act claims on the grounds asserted by the City in
its motion to dismiss.

Because the Court has dismissed those

claims with respect to Corporal Nokes, that request is moot and
is therefore denied.
II.

Plaintiff’s Motion to Amend
The Plaintiff has moved to amend her Complaint to make minor

changes to her factual allegations and assert a new cause of
Action under the VFHPAA.

As discussed above, the VFHPAA claim is

brought as a state law analog to the federal ADA and
Rehabilitation Act claims asserted in the initial Complaint.
Defendants do not oppose the minor additions to the Complaint,
but do oppose the effort to add the VFHPAA cause of action.
15

Rule 15(a) of the Federal Rules of Civil Procedure governs
a trial court’s discretion in the determination of whether to
allow parties to amend their pleadings, providing that “the
[C]ourt should freely give leave [to amend] when justice so
requires.”

Fed. R. Civ. P. 15(a).

Where amendment of the

pleading is “unlikely to be productive,” the Court may deny leave
because further amendment would be futile.

Ruffolo v.

Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993).

The

futility of such an amendment is gauged by whether the proposed
claim could withstand a motion to dismiss pursuant to Rule
12(b)(6).

Lucente v. IBM, 310 F.3d 243, 258 (2d Cir. 2002).

In opposing the motion to amend, Defendants assert the same
arguments as set forth in their motions to dismiss the ADA and
Rehabilitation Act claims.

Specifically, Defendants contend that

it “remains questionable” whether the VFHPAA applies to arrests;
that Mr. Sage is not entitled to protection because he posed a
direct threat; and that Plaintiff fails to assert plausible
claims of either wrongful arrest or failure to accommodate, in
part because the Complaint does not allege that specific
accommodations were either requested or available.

For the same

reasons that the Court denies the City’s motion to dismiss with
respect to the ADA and Rehabilitation Act claims, the Court now
finds that the addition of a claim under the VFHPAA is not futile
with respect to the City of Winooski.

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The Court further finds that just as the ADA and
Rehabilitation Act claims cannot be brought against Corporal
Nokes, the VFHPAA claim is similarly barred.

Other claims

dismissed above would also be futile when presented in an amended
pleading.

The motion to amend is therefore granted in part and

denied in part in accordance with all rulings set forth above.
Conclusion
For the reasons set forth above, the City’s motion to
dismiss (ECF No. 8) is granted with respect to Plaintiff’s tort
claims and is otherwise denied.

Corporal Nokes’s motion to

dismiss the ADA and Rehabilitation Act claims brought against him
in his individual and official capacities (ECF No. 14) is
granted, although his request for dismissal of those claims on
the grounds argued by the City is denied as moot.

Plaintiff’s

motion to amend her Complaint (ECF No. 17) is granted in part and
denied in part, subject to the Court’s rulings above.
DATED at Burlington, in the District of Vermont, this 22nd
day of March, 2017.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge

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