Beaudry v. McKnight et al
Filing
85
OPINION AND ORDER Granting 48 , 49 , 50 , 51 Defendants' Motions to Dismiss. Plaintiff's 45 Second Amended Complaint is DISMISSED. Plaintiff may file a motion seeking leave to amend within twenty (20) days of this Order. Failure to file a Third Amended Complaint in the time period provided shall result in the dismissal of this case. Signed by Judge Christina Reiss on 3/21/2019. (pac)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
NEIL BEAUDRY,
Plaintiff,
V.
JAMES MCKNIGHT, in his individual
and official capacities; JAMES WARDEN,
in his individual and official capacities;
UNKNOWN DEFENDANT, in his/her
individual and official capacities; TOWN
OF SHELBURNE; and PAUL BOHNE,
in his individual and official capacities,
Defendants.
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l019HAR 21 f'H ~: 13
CLERK
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Case No. 2:17-cv-23
OPINION AND ORDER
GRANTING DEFENDANTS' MOTIONS TO DISMISS
(Docs.48,49,50, 51)
Plaintiff Neil Beaudry, who is self-represented, brings this action against
Defendants in their individual and official capacities alleging violations of his civil rights,
conspiracy, and state-law claims. His claims arise from a traffic stop of a vehicle he was
operating on a Vermont public highway in the early morning hours of February 11, 2014.
Pending before the court are Defendants' motions to dismiss. (Docs. 48, 49, 50, 51.)
In his Second Amended Complaint ("SAC"), Plaintiff alleges Town of Shelburne
("Shelburne") Police Officer James McKnight issued him a speeding ticket and charged
him with operating under the influence of alcohol ("DUI") in violation of Vermont law.
Based on the initial stop and succeeding events, Plaintiff alleges thirteen claims:
(1) unlawful seizure pursuant to 42 U.S.C. § 1983; (2) fabrication of evidence;
(3) unlawful arrest; (4) malicious prosecution; (5) assault and battery and excessive force;
(6) violation of due process; (7) supervisory liability against former Shelburne Town
Manager Defendant Paul Bohne; (8) supervisory liability against former Shelburne Police
Chief Defendant James Warden; (9) municipal liability against Shelburne; (10) abuse of
process; (11) conspiracy under 42 U.S.C. § 1983; (12) conspiracy under 42 U.S.C.
§ 1985; 1 and (13) intentional infliction of emotional distress. Plaintiff seeks
compensatory and punitive damages.
Defendants have moved to dismiss Plaintiffs SAC under Federal Rule of Civil
Procedure l 2(b)( 6), arguing that it fails to state a claim for which relief can be granted.
In the alternative, Defendants argue that Plaintiffs arrest and prosecution were supported
by probable cause or arguable probable cause, entitling Defendants to qualified
immunity. Plaintiff opposes the motions.
I.
Procedural History and Background.
On February 10, 2017, Plaintiff filed his Complaint and notice of self-represented
appearance. On May 3, 2017, without serving the Complaint, Plaintiff filed an Amended
Complaint. On August 1, 2017, Plaintiff sought and received an extension of time to
serve the Amended Complaint, which he understood "superseded the original
complaint[.]" (Doc. 4 at 2.) Returns of service demonstrating service were filed.
On August 28, 2017, Shelburne moved to dismiss the Complaint and the Amended
Complaint. On August 30, 2017, former Shelburne Supervisor Bohne filed a separate
motion to dismiss arguing: ( 1) Plaintiff failed to accomplish service within ninety days of
commencing the action; (2) the Amended Complaint failed to comply with Fed. R. Civ.
P. 15; and (3) the Amended Complaint failed to state a claim upon which relief can be
granted. Following Defendants' filings, on September 4, 2017, Plaintiff filed a second
motion to extend time for service of the original Complaint because "[t]here is a
question[] ... that Defendant[] s may have been served with an improper amended filing
of the complaint, in which case I ask to extend the time so that the proper original
1
In Count Twelve, Plaintiff asserts a claim under 42 U.S.C. § 1985(3) for conspiracy against all
Defendants. In his opposition to Shelburne's motion to dismiss, he purports to "enter[] nolle
prosequi" as to this claim. (Doc. 67 at 11.) The term "nolle prosequi" refers to "legal notice that
a lawsuit or prosecution has been abandoned." Black's Law Dictionary (10th ed. 2014). The
court construes Plaintiffs statement as indicating his abandonment of this claim. Accordingly,
Count Twelve is DISMISSED.
2
[C]omplaint may be served[.]" (Doc. 13 at 4.) The court granted an extension until
October 23, 2017. Returns of service demonstrating service were filed.
On October 19, 2017, former Police Chief Warden, Officer McKnight, and Mr.
Bohne moved to dismiss the original Complaint pursuant to Fed. R. Civ. P. 12(b)(5) for
insufficient service of process on the grounds Plaintiff failed to accomplish service within
ninety days of commencing the action. They further asserted that Plaintiffs Complaint
failed to state a claim upon which relief can be granted under Fed. R. Civ. P. 12(b)(6).
On October 23, 2017, Shelburne filed a supplemental motion to dismiss the Complaint
and Amended Complaint, "in response to Plaintiffs service of his Complaint to the
Town[,]" under Fed. R. Civ. P. 12(b)(6). (Doc. 29 at 1 n.1.) On November 17, 2017,
Plaintiff responded to these filings with a motion for leave to amend his original
Complaint and to withdraw the "improperly filed first [A]mended [C]omplaint." (Doc.
30 at 1.)
On March 26, 2018, the court issued an Entry Order granting Plaintiff leave to
amend his Complaint and denying as moot Defendants' motions to dismiss. (Doc. 44.)
Plaintiffs SAC was filed that same day. Defendants thereafter renewed their motions to
dismiss for failure to state a claim upon which relief can be granted.
II.
The SAC's Allegations.
In the early morning hours of February 11, 2014, Plaintiff was driving a vehicle in
Charlotte, Vermont when Defendant Officer McKnight allegedly "rushed upon" him at a
high speed in a car with its headlights on high-beam. (Doc. 45 at 2, ,, 10-11.) Officer
McKnight followed Plaintiff for approximately 1.5 miles before effecting a traffic stop of
Plaintiffs vehicle. Plaintiff asserts that a video of the pursuit, observation, and stop
shows that Plaintiff adhered to all traffic laws and committed no traffic violations.
Officer McKnight informed Plaintiff that he stopped him for speeding and
crossing the white fog line four times. After Plaintiff refused to perform dexterity
exercises and submit to a preliminary breath test ("PBT"), Officer McKnight issued
Plaintiff a speeding ticket and arrested and charged him DUI in violation of 23 V.S.A.
§ 120l(a)(2). Plaintiff alleges that although he did not resist arrest, as he exited his
3
vehicle, Officer McKnight allegedly "unnecessarily and forcibly twisted Plaintiffs arm
behind his back in his effort to handcuff him." (Doc. 45 at 8, ,r 58.) Plaintiff allegedly
suffered bruising and a cut as a result. Plaintiff asserts he did not complain of the
allegedly excessively tightened handcuffs because he was too afraid to do so. A second
officer seat-belted Plaintiff in the patrol car.
Plaintiff alleges that, during the transport to the police station, he leaned forward
in an effort to reduce the pain caused by the handcuffs. Officer McKnight asked him
what he was doing and commanded him to "sit back and stay there[.]" Id. at 9, ,r 68
(internal quotation marks omitted). Officer McKnight pumped the brakes as he said "sit
,r 69 (internal quotation marks omitted). Plaintiff asked Officer
Id. ,r 70 (internal quotation marks omitted). Officer McKnight
down ... sit down[.]" Id.
McKnight: "or what?"
then abruptly stopped the patrol car, exited and opened Plaintiffs door, and asked
Plaintiff if "he wanted to get tazed" to which Plaintiff responded "no." Id.
,r 71 (internal
quotation marks omitted). Officer McKnight stated there was a "safety issue" and
Officer McKnight contacted another officer for "his cage[.]" Id. at 10, ,r 78 (internal
quotation marks omitted). Officer McKnight asked Plaintiff what he was reaching for
and reported to dispatch that Plaintiff was being uncooperative. He told a second officer
Plaintiff was standing up in his seat. Officer McKnight allegedly told Plaintiff "things
can go very smoothly or very complicated, and you're making them as complicated as
possible." Id. at 11, ,r 84 (internal quotation marks omitted).
Plaintiff alleges that Officer McKnight's affidavit described Plaintiffs conduct as
follows:
While transporting [Plaintiff] to Shelburne Police Dept. for processing
[Plaintiff] became unruly in the back seat of my uncaged cruiser. On two
accounts he was seen trying to stand up in the backseat with his hands
being pushed downward in what appeared to be an attempt to retrieve
something from his waistline or slip his cuffs under his feet. He was
moved to another cruiser with a protective barrier. As I was walking
[Plaintiff] to the second cruiser [Plaintiff] swung his head and hit the open
front passenger's cruiser door. He then asked why I had hit him or pushed
him into the door. He then tried to do it to the rear door as well but I was
able to prevent him from hurting himself anymore. When he was asked to
4
step into the cruise he told me to push him in. His behavior was extremely
odd.
Id. at 8-9,
,r 64. 2
Plaintiff alleges that he was being "cooperative and not resistant as Defendant
McKnight escorted him [and] was then suddenly shoved by Defendant McKnight into the
open door as they passed it, striking PlaintiffI']s head and causing him injury and
emotional distress." Id. at 11-12, ,r 91. In response, Plaintiff asked "why did you do that
to me? That's fucked up." Id. at 12, ,r 92 (internal quotation marks omitted). Officer
McKnight then allegedly "slammed Plaintiff's back up against the patrol SUV[,]" and
said, "knock it off, alright, you're acting like an idiot, smacking yourself into the door[,]"
to which Plaintiff responded, "I didn't do anything." Id.
,r,r 93-95 (internal quotation
marks omitted).
Plaintiff asked Officer McKnight for assistance entering the SUV, saying "help
me, please, push me." Id.
,r 96.
When he was seated inside the vehicle, Plaintiff alleges
Officer McKnight "told Plaintiff he tried to kick him." Id.
,r 97.
Plaintiff contends he
"did not kick, or attempt to kick Defendant McKnight, and responded that 'I didn't kick
you.'" Id.
,r 98.
While he was seat belting Plaintiff, Officer McKnight purportedly said
to Plaintiff "if you want to act like a 2-year old we'll treat you like one" before
transporting Plaintiff to the Shelburne Police Department for DUI processing. Id.
,r,r 99-
100 (internal quotation marks omitted).
On February 13, 2014, Officer McKnight forwarded his affidavit of probable
cause to the State of Vermont's attorney. Plaintiff alleges Officer McKnight knowingly
and intentionally fabricated material facts in the affidavit, including that Plaintiff was
swerving, crossed the white fog line at least four times, and braked suddenly before
crossing the center line as he made a right-hand tum. Plaintiff further alleges Officer
McKnight "made allegations, attempting to paint Plaintiff as acting 'mad"' during the
2
While Plaintiff purports to quote Officer McKnight's affidavit in the SAC, see Doc. 45 at 5, 7,
,i,i 34, 47-50, he does not attach the affidavit to the SAC and it has not otherwise been submitted
for the court's consideration.
5
encounter. Id at 7, ,r 50. Plaintiff asserts these allegations are untrue and that Officer
McKnight lacked probable cause for the DUI charge. As a result of the DUI charge,
Plaintiffs license to operate a motor vehicle was suspended for several months and he
suffered a loss of his liberties by virtue of court-ordered conditions of release. Because
Plaintiff was self-employed and relied on his ability to drive to operate his business, he
alleges he suffered severe emotional distress.
On February 19, 2014, Plaintiff requested the video recording of the traffic stop in
accordance with 23 V.S.A. § 1203(k). He alleges he received the video on March 6,
2014, after the ten-day statutory deadline for its production.
On April 9, 2014, the Vermont Superior Court held hearings on both Plaintiffs
civil suspension and DUI charge. 3 In connection with Plaintiffs motion to suppress
evidence and motion to dismiss, the state court reviewed the video recording of the
February 11, 2014 traffic stop. At the hearing, Officer McKnight testified consistent with
his affidavit. In an April 28, 2014 decision, Plaintiff asserts the state court noted its
"concern[] that the cruiser video fail[ ed] to corroborate much of Officer McKnight's
testimony[.]" (Doc. 45 at 6-7, ,r 46) (internal quotation marks omitted) (first alteration
added). Specifically, the state court found Officer McKnight's testimony that he
3
Shelburne has submitted Vermont Superior Court's Findings and Order and related filings.
(Docs. 69-1, 69-2, 69-3.) In evaluating a motion to dismiss, "a district court may consider the
facts alleged in the complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint." DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104,
111 (2d Cir. 2010). The court may also consider a document that is "integral to" the complaint,
if the plaintiff relied on the terms and effect of that document in drafting the complaint, Glob.
Network Commc'ns, Inc. v. City ofNew York, 458 F.3d 150, 156 (2d Cir. 2006), and may take
"judicial notice of a document filed in another court not for the truth of the matters asserted in
the other litigation, but rather to establish the fact of such litigation[.]" Id. at 157. "Even where
a document is not incorporated by reference, the court may nevertheless consider it where the
complaint relies heavily upon its terms and effect, which renders the document integral to the
complaint." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (internal
quotation marks omitted). "[I]t must be clear on the record that no dispute exists regarding the
authenticity or accuracy of the document." Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).
Because Plaintiff relies on the Vermont Superior Court's April 23, 2014 Findings and Order in
his SAC, see Doc. 45 at 6-7, ,r,r 46-54, and there is no dispute regarding its authenticity, it is
properly before the court.
6
observed Plaintiff's vehicle swerving back and forth and making an abrupt right-hand
tum and that Plaintiff's speech was mumbled and slurred was not corroborated by the
cruiser video. The court, however, also found: "[a]ccording to the cruiser video, it took
approximately 45 seconds to establish visual contact with the vehicle. Officer McKnight
is certain that the vehicle he stopped was the same vehicle he observed speeding. The
court so finds." (Doc. 69-3 at 2 (State v. Beaudry, No. 622-2-14 Cncr, No. 60-2-14 Cncs
(Vt. Super. Ct. Apr. 23, 2014)).) The court noted that during the subsequent roadside
encounter, Officer McKnight became "slightly more confrontational[,]" while Plaintiff
was "polite and courteous with the officer." Id. at 2. The court found the cruiser video:
reveals that once [Plaintiff] declined the invitations to exit the car, take
dexterity tests, and submit to a PBT [preliminary breath test], Officer
McKnight became more aggressive with him. Officer McKnight advised
[Plaintiff] that since he could smell alcohol and suspected him of drinking,
going home was not going to happen .... Faced with the threat of arrest,
[Plaintiff] agreed to submit to the PBT .... When [Plaintiff] failed to give a
sufficient sample of breath, Officer McKnight asked [him] ifhe wanted "to
blow or not." ... When [Plaintiff] refused to submit to the PBT, Officer
McKnight opened the driver's door and began to physically remove
[Plaintiff] from the vehicle. [Plaintiff] did not resist, but faced with the
prospect of arrest for the second time, he agreed to submit to the PBT
agam.
(Doc. 69-3 at 3-4.) After several more attempts to administer the PBT, Plaintiff was
arrested and transported to the Shelburne Police Department for DUI processing. The
Vermont Superior Court made no rulings that Officer McKnight physically assaulted
Plaintiff or that Plaintiff sustained any injuries in the course of his arrest. At the police
station, Officer McKnight contacted the on-call Public Defender. After consulting with
both the Public Defender and his private attorney, Plaintiff agreed to submit an
evidentiary breath sample which reflected a blood alcohol content ("BAC") of .130 at
3 :31 a.m. Vermont law prohibits operating a motor vehicle on a public highway with a
blood alcohol content of .08 or greater. See 23 V.S.A. § 1201(a)(l). Plaintiff was cited
and released.
The Vermont Superior Court held:
7
While the court is concerned that the cruiser video fails to corroborate much
of Officer McKnight's testimony, the court is satisfied that reasonable
suspicion for the stop existed as a result of the speeding violation .... After
carefully reviewing the officer's testimony and cruiser video, the court
concludes that the State has not met its burden to establish the validity and
justification for the exit orders. The court recognizes that in the vast
majority of traffic stops, drivers readily agree to do what the officer asks.
Submission to authority, couched in terms of "requests" to do things, is
natural. It is rare to come across someone who understands his legal rights
and declines repeated "requests" to perform roadside tests "that will only
help him." This is such a case. The original justification for the stop was
speeding and erratic operation, but ... the video does not corroborate the
erratic operation described by the officer. Momentary touching of a fog line
is not a traffic violation. Moreover, the video confirms that [Plaintiff] was
polite and courteous while invoking his right not to submit to dexterity or
PBT tests. It was the officer, not [Plaintiff], who grew more aggressive as
the process unfolded. At best, the exit order was based on a slight odor of
alcohol and a speeding violation. The sole reason [Plaintiff] agreed to
submit to the PBT was the clear threat that a failure to submit to the test
would result in his arrest. Suffice it to say, at the time the threat was made,
there was no probable cause for any arrest. ... Based on the credible and
objective facts and circumstances, the court concludes that there was
insufficient reasonable suspicion to justify the exit order. Accordingly, all
evidence obtained following the unlawful exit order must be suppressed ....
Apart from the unlawful exit order, there was no probable cause to arrest
[Plaintiff] for DUI.
(Doc. 69-3 at 6-7.) 4 Because the Vermont Superior Court granted the motion to suppress,
the State of Vermont could not use Plaintiffs evidentiary breath test result in the civil
suspension proceeding and thus the court held that "the State has not met its burden of
establishing, by a preponderance of the evidence, each element of23 V.S.A. §
1205(h)(l)(A) through (E)." Id. at 7. Judgment was entered for Plaintiff in the civil
suspension hearing. In the criminal case, Plaintiffs motion to dismiss was granted.
4
Under Vermont law, "the test to determine whether an exit order was justified under Article 11
[of the Vermont Constitution] is whether the objective facts and circumstances would support a
reasonable suspicion that the safety of the officer, or of others, was at risk or that a crime has
been committed." State v. Sprague, 2003 VT 20, 1 16, 175 Vt. 123, 129, 824 A.2d 539, 545.
The Sprague court identified a need "to investigate a suspected crime" as justification for an exit
order. Id. 120, 175 Vt. at 130, 824 A.2d at 546.
8
On November 20, 2014, Plaintiff appeared at a hearing before the Vermont
Judicial Bureau contesting the citation for a speeding violation. The hearing officer ruled
against Plaintiff who appealed the decision. Plaintiff alleges the speeding citation
"ultimately terminated in [his] favor when the State declined to pursue the charge through
jury trial and dismissed the ticket." (Doc. 45 at 14, ,r 118.)
Finally, Plaintiff alleges that the Shelburne Police Department had an "internal,
public award program for most motor vehicle stops and DUI[s.]" Id. at 21, ,r 161. He
asserts this program led to the violation of his constitutional rights when Officer
McKnight stopped him in February 2014. Plaintiff alleges Defendant Warden, the
Shelburne Chief of Police at the time, sanctioned the program and required his officers to
perform more traffic stops. He further alleges Shelburne was on notice of the
unconstitutional actions of its officers when Wallace Nolen of Barre, Vermont informed
the Shelburne Selectboard at an August 2013 meeting that there seemed to be a pattern of
"the issuance of 'bogus' tickets by Shelburne police officer[s.]" Id. at 18, ,r 140. He
alleges that Officer Lawton was the subject of a civil rights claim filed by Roderick
Maclver in the United States District Court in September of 2013 and sets forth facts
regarding that incident in the SAC.
III.
Conclusions of Law and Analysis.
In adjudicating a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the court must
"accept as true all of the allegations contained in a complaint" and determine whether the
complaint states a claim for relief that is "plausible on its face." Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (internal quotation marks omitted). "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." Id. "[T]he tenet that a
court must accept as true all of the allegations contained in a complaint is inapplicable to
legal conclusions." Id.
A court must liberally construe a complaint filed by a self-represented litigant
because it "must be held to less stringent standards than formal pleadings drafted by
lawyers[.]" Erickson v. Pardus, 551 U.S. 89, 94 (2007); see also Ahlers v. Rabinowitz,
9
684 F.3d 53, 60 (2d Cir. 2012) (noting a document filed by a self-represented litigant
must be liberally construed). While "lenity ... must attend the review of pro se
pleadings[,]" Harris v. Mills, 572 F.3d 66, 68 (2d Cir. 2009), self-represented litigants
nevertheless must satisfy the plausibility standard set forth in Iqbal and Fed. R. Civ. P. 8
and 12(b)(6).
A.
Shelburne's Motions to Dismiss under 24 V.S.A. § 901a.
Shelburne moves to dismiss all claims against it as well as those against its
employees and officers "to the extent it is obligated to stand in the place of its employees
under 24 V.S.A. § 901a." (Doc. 48 at 2.)
Section 901 a provides, in pertinent part:
(b) When the act or omission of a municipal employee acting within
the scope of employment is alleged to have caused damage to property,
injury to persons, or death, the exclusive right of action shall lie against the
municipality that employed the employee at the time of the act or omission;
and no such action may be maintained against the municipal employee[;]
(c) When a municipality assumes the place of a municipal employee
in an action as provided in subsection (b) of this section, the municipality
may assert all defenses available to the municipal employee, and the
municipality shall waive any defense not available to the municipal
employee, including municipal sovereign immunity.
24 V.S.A. § 90la(b)-(c). "[F]alse arrest, malicious prosecution, and intentional infliction
of emotional distress are all properly classified as intentional torts." Simuro v. Shedd,
176 F. Supp. 3d 358,373 (D. Vt. 2016). Because the protection afforded to municipal
employees under § 901 a(b) does not extend "to an act or omission ... that was willful,
intentional, or outside the scope of the employee's authority[,]" id. § 901 a( e), 5 Shelburne
does not stand in the place of individual Defendants Officer McKnight, former Chief of
Police Warden, or former Town Manager Bohne with regard to Plaintiffs intentional tort
5
Plaintiff does not allege whether Defendant Bohne, as Shelburne Town Manager, or Defendant
Warden, as Shelburne' s Chief of Police, was an appointed or elected municipal officer. Vermont
law provides that actions brought against "any appointed or elected municipal officer" shall be
brought against the municipality, and that "[t]he municipality shall assume all reasonable legal
fees incurred by an officer when the officer was acting in the performance of his or her duties
and did not act with any malicious intent." 24 V.S.A. § 901.
10
claims. Those claims therefore may be brought against those individual employees, but
not against their employer. As a result, Plaintiffs claims against Shelburne for unlawful
arrest, malicious prosecution, fabrication of evidence, assault, battery, and excessive
force are DISMISSED.
B.
Plaintiff's Section 1983 Claim for Unlawful Seizure.
In Count One, Plaintiff asserts a§ 1983 claim against Officer McKnight for
unlawful seizure under the Fourth and Fourteenth Amendments. Specifically, he alleges
that Officer McKnight lacked "reasonable suspicion" for the traffic stop. (Doc. 45 at 22,
,i 169.) Defendants argue that Officer McKnight had a reasonable suspicion for the stop
and, even if reasonable suspicion was lacking, that Officer McKnight is entitled to
qualified immunity.
Section 1983 provides that:
Every person who, under color of any statute, ordinance, regulation,
custom, or usage, of any State[,] ... subjects, or causes to be subjected ...
[any] person within the jurisdiction [of the United States] to the deprivation
of any rights, privileges, or immunities secured by the Constitution and
laws, shall be liable to the party injured in an action at law ... or other
proper proceeding for redress[.]
42 U.S.C. § 1983. The statute is "not itself a source of substantive rights" but rather
provides "a method for vindicating federal rights elsewhere conferred[.]" Patterson v.
Cty. of Oneida, 375 F.3d 206,225 (2d Cir. 2004) (quoting Baker v. McCollan, 43 U.S.
137, 144 n.3 (1979)). To prevail on a claim under§ 1983, a plaintiff "must allege
(1) 'that some person has deprived him of a federal right,' and (2) 'that the person who
has deprived [the plaintiff] of that right acted under color of state ... law."' Velez v.
Levy, 401 F.3d 75, 84 (2d Cir. 2005) (quoting Gomez v. Toledo, 446 U.S. 635, 640
(1980)). It is well settled that§ 1983 "is to be read in harmony with general principles of
tort immunities and defenses rather than in derogation of them." Imbler v. Pachtman,
424 U.S. 409,418 (1976). Shelburne does not dispute that Officer McKnight was acting
under color of state law.
11
"The Fourth Amendment permits brief investigative stops ... when a law
enforcement officer has a particularized and objective basis for suspecting the particular
person stopped of criminal activity or a traffic violation." United States v. Diaz, 802 F .3d
234,238 (2d Cir. 2015) (internal quotation marks omitted). Though a "mere hunch" is
insufficient, the "reasonable suspicion" standard requires "considerably less than proof of
wrongdoing by a preponderance of the evidence, and obviously less than is necessary for
probable cause." Navarette v. California, 572 U.S. 393, 397 (2014) (internal quotation
marks and citation omitted). A reasonable suspicion requires "some minimal level of
objective justification[.]" Diaz, 802 F.3d at 239 (internal quotation marks omitted). The
objective inquiry asks "whether a reasonable officer would suspect unlawful activity
under the totality of the circumstances" and disregards the officer's subjective
motivation. Id. ("The objective reasonableness of an officer's suspicion preceding any
given traffic stop depends on the totality of the circumstances leading to that stop and on
the traffic law at issue.").
Plaintiff alleges he did not cross the white fog line and was not speeding. The
Vermont Superior Court, however, held that it was "satisfied that reasonable suspicion
for the stop existed as a result of the speeding violation." (Doc. 69-3 at 6.) Plaintiff
cannot avoid this finding by making allegations to the contrary. See L-7 Designs, Inc. v.
Old Navy, LLC, 647 F.3d 419,422 (2d Cir. 2011) (noting that a court need not accept the
truth of a plaintiffs allegations when they are contradicted by documents attached to the
complaint); see also Gene Codes Forensics, Inc. v. City ofNew York, 2012 WL 1506166,
at *3 (S.D.N.Y. Apr. 26, 2012) ("[A]t th[e motion to dismiss stage,] ... if the allegations
are flatly contradicted by documentary evidence, they are not presumed to be true, or
even accorded favorable inference.") (internal quotation marks omitted). Because Officer
McKnight had a reasonable suspicion that Plaintiff was speeding, the traffic stop was not
in violation of the Fourth Amendment. Plaintiff has therefore failed to state a§ 1983
claim against Officer McKnight for an unlawful traffic stop. Count One for an unlawful
seizure is therefore DISMISSED against all Defendants.
12
C.
Plaintiff's Fabrication of Evidence Claim.
Plaintiff alleges Officer McKnight created a false affidavit "that resulted in the
deprivation of Plaintiff{']s right[]s and liberty, including the loss of his license to drive
and court[-]ordered conditions of his release[.]" (Doc. 45 at 22, ,i 170.) Defendants
assert that Plaintiff has failed to allege sufficient facts to state a plausible claim for
fabrication of evidence.
"When a police officer creates false information likely to influence a jury's
decision and forwards that information to prosecutors, he violates the accused's
constitutional right to a fair trial[.]" Ricciuti v. NYC Transit Auth., 124 F.3d 123, 130
(2d Cir. 1997). To state a claim for fabrication of evidence, Plaintiff must allege: "an
(1) investigating official (2) fabricate[d] evidence (3) that is likely to influence ajury's
decision, (4) forward[ ed] that information to prosecutors, and (5) the plaintiff suffer[ ed] a
deprivation of [life, liberty, or property] as a result." Garnett v. Undercover Officer
C0039, 838 F.3d 265, 277 (2d Cir. 2016).
Plaintiff alleges that Officer McKnight, an investigating official, included certain
information in his affidavit that was forwarded to prosecutors regarding Plaintiff's
operation of his vehicle that was substantially contradicted by the cruiser video and that
was therefore allegedly fabricated. 6 In particular, Plaintiff claims he was not operating
erratically and that although the court found that his vehicle touched the fog line, it did
not find that it crossed it. Because the Vermont Superior Court's suppression of evidence
does not apply in this case, Plaintiff's suppressed evidentiary breath test result may be
considered in determining whether Plaintiff plausibly alleges that Officer McKnight
fabricated evidence in support of a DUI charge. See Townes v. City ofNew York, 176
6
In State v. Freeman, the Vermont Supreme Court acknowledged that indicia of intoxication
such as the odor of alcohol and watery or bloodshot eyes are not likely to be corroborated by a
cruiser video. 2004 VT 56, ,r 8, 177 Vt. 478, 480, 857 A.2d 295, 298 (noting the lower court
"refused to substitute its judgment of the events captured in the tape for the trooper's testimony,
which the court found credible. Given the inherent difficulty in evaluating demeanor,
mannerisms, and tone of voice, in addition to the quality of testimony itself, we defer to the
factfinder's determination of the credibility of the witness, and the persuasive effect of his
testimony").
13
F.3d 138, 145 (2d Cir. 1999) ("The fruit of the poisonous tree doctrine ... is inapplicable
to civil§ 1983 actions."); see also Wong Sun v. United States, 371 U.S. 471, 484-88
( 1963) (stating the fruit of the poisonous tree doctrine is an evidentiary rule that operates
in the context of criminal procedure). A jury would thus be entitled to consider
Plaintiffs BAC as well as his refusal to submit to a PBT and dexterity exercises. By
statute, motorists in Vermont give "implied consent" to provide an evidentiary breath
sample for testing. 23 V.S.A. § 1202(a). While the statute grants a motorist the right to
refuse the test, the refusal may be introduced in a subsequent criminal proceeding. Id.
§ 1202(b). Against this backdrop, it is not plausible that the allegedly fabricated evidence
of Plaintiffs crossing the fog line and uncooperative behavior would influence a jury's
decision whether to convict or acquit Plaintiff of DUI.
Because Plaintiff has not plausibly alleged the essential elements of a fabrication
of evidence claim, that claim is DISMISSED against all Defendants.
D.
Plaintiff's§ 1983 Unlawful Arrest Claim.
A claim for false arrest under§ 1983 requires a plaintiff to allege that: "(l) the
defendant intended to confine him, (2) the plaintiff was conscious of the confinement,
(3) the plaintiff did not consent to the confinement and (4) the confinement was not
otherwise privileged." Ackerson v. City of White Plains, 702 F.3d 15, 19 (2d Cir. 2012)
(per curiam) (internal quotation marks omitted). A false arrest claim action under
Vermont law contains these same elements. See Connary v. Field, No. 12-276, slip op.
at 3 (Vt. Feb. 14, 2013) (requiring proof the defendant "intended to confine plaintiff
without plaintiffs consent, and that confinement was not otherwise privileged").
Probable cause is a complete defense to a claim of false arrest. 7 Ackerson, 702
F.3d at 19. Probable cause exists when an officer has "knowledge or reasonably
trustworthy information of facts and circumstances that are sufficient to warrant a person
7
This is because probable cause to arrest constitutes justification. See Escalera v. Lunn, 361
F.3d 737, 743 (2d Cir. 2004) ("Because probable cause to arrest constitutes justification, there
can be no claim for false arrest where the arresting officer had probable cause to arrest the
plaintiff1. ]").
14
of reasonable caution in the belief that the person to be arrested has committed or is
committing a crime." Dufort v. City ofNew York, 874 F.3d 338, 348 (2d Cir. 2017)
(internal quotation marks omitted).
Whether probable cause exists depends on the "totality of the circumstances."
Maryland v. Pringle, 540 U.S. 366, 371 (2003). Probable cause need only be shown for
one of the charged offenses, even if a plaintiff was arrested for more than one offense.
See Marcavage v. City ofNew York, 689 F.3d 98, 109 (2d Cir. 2012) ("A Fourth
Amendment claim turns on whether probable cause existed to arrest for any crime, not
whether probable cause existed with respect to each individual charge.").
The Vermont Superior Court ruled that Officer McKnight lacked probable cause
to arrest Plaintiff because at the time of the traffic stop, Plaintiff had refused both a PBT
and dexterity exercises and the court refused to credit Officer McKnight's observations
regarding indicia of intoxication. See Doc. 69-3 at 7 ("Apart from the unlawful exit
order, there was no probable cause to arrest [Plaintiff] for DUI."). In doing so, the
Vermont Superior Court properly did not consider the suppressed evidentiary BAC test.
Based on this evidence, Plaintiff has plausibly alleged that there was no probable cause
for his arrest. However, under federal law, if probable cause is lacking, a law
enforcement officer acting under the color of state law may still be entitled to qualified
immunity if there is arguable probable cause. See Zalaski v. City ofHartford, 723 F.3d
382, 390 (2d Cir. 2013) ("Even where a reviewing court[] ... concludes that probable
cause to arrest was lacking in a given case, an officer will still be entitled to qualified
immunity ... ifhe can establish that there was arguable probable cause to arrest.")
(internal quotation marks omitted). This is because "[q]ualified immunity shields
government officials from civil damages liability unless the official violated a statutory or
constitutional right that was clearly established at the time of the challenged conduct."
Reichle v. Howards, 566 U.S. 658, 664 (2012); see also Malley v. Briggs, 475 U.S. 335,
341 (1986) (observing that qualified immunity "provides ample protection to all but the
plainly incompetent or those who knowingly violate the law.").
15
"Arguable probable cause exists if either (a) it was objectively reasonable for the
officer to believe that probable cause existed, or (b) officers of reasonable competence
could disagree on whether the probable cause test was met." Escalera v. Lunn, 361 F.3d
737, 743 (2d Cir. 2004) (internal quotation marks omitted). "In other words, an officer is
entitled to qualified immunity unless no officer of reasonable competence could have
made the same choice in similar circumstances." Kass v. City ofNew York, 864 F.3d
200, 206 (2d Cir. 2017) (internal quotation marks omitted).
The Vermont Superior Court found that Officer McKnight permissibly stopped
Plaintiffs vehicle because it was speeding. It further found that Plaintiffs vehicle
touched the fog line but did not find this sufficient evidence of erratic driving. Although
Plaintiff denies Officer McKnight's observations that Plaintiff emitted an odor of alcohol,
the Vermont Superior Court acknowledged the potential existence of this evidence. See
Doc. 69-3 at 7 ("At best, the exit order was based on a slight odor of alcohol and a
speeding violation."). 8 Plaintiff did not submit to a PBT or dexterity exercises, which is
evidence probative of guilt. See State v. Blouin, 716 A.2d 826, 828 (Vt. 1998)
("Evidence that a motorist refused to perform a sobriety test is probative of guilt, and
therefore relevant.").
Because officers of reasonable competence could differ as to whether there was
probable cause for Plaintiffs arrest based on his speeding, indicia of intoxication, and
refusal to submit to a dexterity test and a PBT, arguable probable cause exists. Officer
McKnight is therefore entitled to qualified immunity and Plaintiffs false arrest claim
against him is DISMISSED.
8
In determining whether there is arguable probable cause, a jury would also be entitled to
consider evidence that the Vermont Superior Court's conclusion that the exit order was unlawful
was in error. In State v. Freeman, 2004 VT 56, 177 Vt. 478, 857 A.2d 295, the Vermont
Supreme Court upheld an exit order even though the trial court "conceded that it was difficult to
corroborate the trooper's observations" from the cruiser videotape based on the police officer's
notation on a pre-printed DUI processing form that the defendant had "very slight" slurred
speech. Id. ,r,r 5, 9, 177 Vt. at 480-81, 857 A.2d at 297-98.
16
E.
Plaintiff's § 1983 Malicious Prosecution Claim.
To state a§ 1983 claim for malicious prosecution, Plaintiff must allege "a seizure
or other perversion of proper legal procedures implicating his personal liberty and
privacy interests under the Fourth Amendment[,]" as well as that "criminal proceedings
were initiated or continued against him, with malice and without probable cause, and
were terminated in his favor." Lanning v. City of Glens Falls, 908 F.3d 19, 24 (2d Cir.
2018) (internal quotation marks and alterations omitted). State tort law may "serve[] only
as a source of persuasive authority ... in defining the[] elements" of the claim. Id.
Under Vermont law, a claim of malicious prosecution requires Plaintiff to
plausibly allege: "a party instituted a proceeding against the individual without probable
cause, that the party did so with malice, that the proceeding terminated in that
individual's favor, and that the individual suffered damages as a result of the
proceeding." Siliski v. Allstate Ins. Co., 811 A.2d 148, 151 (Vt. 2002). "[I]fthe
dismissal somehow indicates that the [plaintiff] is innocent of wrongdoing, it will be
considered a favorable termination. On the other hand, if the reason for dismissal is not
inconsistent with a [plaintiff's] wrongdoing, it will not be considered a favorable
termination." Id. at 151-52 (internal quotation marks and citation omitted).
Plaintiff was charged with DUI in violation of23 V.S.A. § 1201(a)(2). In order to
allege a claim of malicious prosecution, Plaintiff must plausibly allege that Officer
McKnight rather than the state's attorney initiated the charges against him. See 24
V.S.A. § 36l(a) ("A State's Attorney shall prosecute for offenses committed within his or
her county, and all matters and causes cognizable by the Supreme and Superior Courts on
behalf of the State"). Under Vermont law, an individual police officer cannot institute a
criminal proceeding. Even if Plaintiff could overcome this hurdle, he must further
plausibly allege that the proceeding terminated in his favor. See Heck v. Humphrey, 512
U.S. 477,484 (1994) ("One element that must be alleged and proved in a malicious
prosecution action is termination of the prior criminal proceeding in favor of the
accused."). In the Second Circuit, "affirmative indications" of innocence are required to
plausibly allege the "favorable termination" element. Lanning, 908 F .3d at 25 ("Our
17
prior decisions requiring affirmative indications of innocence to establish 'favorable
termination' therefore continue to govern§ 1983 malicious prosecution claims[.]").
Because the Vermont Superior Court granted Plaintiffs motion to suppress, and
all evidence obtained following the unlawful exit order was suppressed, the DUI charge
was dismissed for lack of evidence. There was no affirmative finding that Plaintiff was
innocent of any wrongdoing or that he had not in fact operated his vehicle on a public
highway under the influence of alcohol. Dismissal for lack of evidence following a
successful suppression motion is not a "favorable termination" for malicious prosecution
purposes. See Margheim v. Buljko, 855 F.3d 1077, 1089 (10th Cir. 2017) ("Dismissal of
the Drug Case was not a favorable termination for malicious prosecution purposes ....
Dismissal based on the suppression of evidence on technical grounds having no or little
relation to the evidence's trustworthiness is not favorable") (internal quotation marks
omitted); see also Dobiecki v. Palacios, 829 F. Supp. 229, 235-36 (N.D. Ill. 1993) (noting
"if the evidence was only suppressed on 'technical' grounds having little or no relation to
the evidence's trustworthiness, then the fact that there was not other sufficient evidence
would not be indicative of innocence").
Because Plaintiff has not plausibly alleged a malicious prosecution claim, this
claim against all Defendants must be DISMISSED.
F.
Plaintiff's Excessive Force Claim.
In Count Five, Plaintiff asserts "Defendant McKnight intended to unlawfully use
force against Plaintiff and that force caused Plaintiff to suffer pain and injury violating
the Fourth Amendment[.]" (Doc. 45 at 23, ,i 173.) With the exception of bruising and a
cut from the handcuffs, Plaintiff does not specify the type of injury he sustained. The
court construes his claim as one for excessive force under § 1983.
"Whether the force used to effect an arrest is 'reasonable' or 'excessive' turns on
'a careful balancing of the nature and quality of the intrusion on the individual's Fourth
Amendment interests against the countervailing government interests at stake."'
Figueroa v. Mazza, 825 F.3d 89, 105 (2d Cir. 2016) (quoting Graham v. Connor, 490
U.S. 386, 396 (1989)). Among other things, the court must consider "the need for the
18
application of force, the relationship between the need and the amount of force that was
used, the extent of injury inflicted, and whether force was applied in a good faith effort to
maintain or restore discipline[.]" Id. (internal quotation marks omitted). "The subjective
motivations of the individual officers have no bearing on whether a particular seizure is
unreasonable under the Fourth Amendment." Bryant v. City ofNew York, 404 F.3d 128,
136 (2d Cir. 2012) (internal quotation marks and alterations omitted). The court must
make "allowance[ s] for the fact that police officers are often forced to make split-second
judgments-in circumstances that are tense, uncertain, and rapidly evolving-about the
amount of force that is necessary in a particular situation." Graham, 490 U.S. at 397.
Plaintiff alleges handcuffs were "excessively-tightened" and caused him to suffer
bruising and a cut. (Doc. 45 at 8-9, ,r,r 59, 67.) "[T]ight handcuffing does not constitute
excessive force unless it causes some injury beyond temporary discomfort." See Lynch v.
City ofMount Vernon, 567 F. Supp. 2d 459,468 (S.D.N.Y. 2008).
Plaintiff further alleges that he did not complain about the excessively tight
handcuffs or notify the officers of his injuries. Because Plaintiff did not bring his
condition to Officer McKnight's attention, there is no allegation that it was deliberately
ignored. It would be unreasonable to find a plausible claim of a Fourth Amendment
violation in such circumstances. See Davis v. Rodriguez, 364 F .3d 424, 436 (2d Cir.
2004) ("The Supreme Court has explained that all claims that law enforcement officers
have used excessive force-deadly or not-in the course of an arrest, investigatory stop,
or other 'seizure' of a free citizen should be analyzed under the Fourth Amendment and
its 'reasonableness' standard"') (internal quotation marks omitted).
Plaintiff further alleges that he was cooperative as he was led to the second patrol
car but was "suddenly shoved by Defendant McKnight into the open door as they passed
it, striking PlaintiffT']s head and causing him injury[.]" Id. at 11-12, ,r 91. He alleges that
he stated: "why did you do that to me? That's fucked up." Id. at 12, ,r 92 (internal
quotation marks omitted). Officer McKnight allegedly told Plaintiff: "knock it off,
alright, you're acting like an idiot, smacking yourself into the door." Id.
,r 94 (internal
quotation marks omitted). Plaintiff denied this and asked Officer McKnight "help me,
19
please, push me." Id. ,i 96. The two then allegedly discussed whether Plaintiff had
attempted to or actually kicked Officer McKnight which Plaintiff denied.
Plaintiff contends he suffered an unspecified injury as a result of Officer
McKnight's striking Plaintiff's head against an open cruiser door and slamming
Plaintiff's back against the cruiser. Even minor injuries can support an excessive force
claim if the force in question was umeasonable. See Maxwell v. City ofNew York, 380
F.3d 106, 108-10 (2d Cir. 2004) (affirming district court's decision which "permitted a
plaintiff's claim to survive summary judgment on allegations that, during the course of an
arrest, a police officer twisted her arm, 'yanked' her, and threw her up against a car,
causing only bruising[.]"). However, "[n]ot every push or shove, even if it may later
seem unnecessary in the peace of a judge's chambers, violates the Fourth Amendment."
Graham, 490 U.S. at 396 (internal quotation marks and citation omitted).
Even if a § 1983 claim of excessive force is plausibly alleged, Officer McKnight
may be entitled to qualified immunity if the right at issue was not clearly established.
Use of excessive force is an area of the law "in which the result depends very much on
the facts of each case, and thus police officers are entitled to qualified immunity unless
existing precedent 'squarely governs' the specific facts at issue." Kisela v. Hughes, 138
S. Ct. 1148, 1153 (2018) (per curiam) (internal quotation marks omitted). A defendant
police officer "cannot be said to have violated a clearly established right unless the right's
contours were sufficiently definite that any reasonable official in the defendant's shoes
would have understood that he was violating it." Plumhojf v. Rickard, 572 U.S. 765,
778-79 (2014 ).
Arguably, the Supreme Court's most recent decisions have required an even closer
match between the facts at issue and controlling precedent for the "clearly established"
prong to apply. In White v. Pauly, the Court held that the defendant officer who fatally
shot an individual without first providing a warning after the officer "arrived late at an
ongoing police action and ... witnessed shots being fired by one of several individuals in
a house surrounded by other officers" did not violate clearly established law, noting that
the Tenth Circuit "failed to identify a case where an officer acting under similar
20
circumstances as [the defendant officer] was held to have violated the Fourth
Amendment." 137 S. Ct. 548, 549, 552 (2017) (per curiam). In Kisela v. Hughes, in
deciding whether a police officer engaged in excessive force when he used deadly force
to kill a woman exhibiting erratic behavior with a knife, the Court concluded that "[t]his
[was] far from an obvious case in which any competent officer would have known" that
the use of deadly force violated the Fourth Amendment, 138 S. Ct. at 1153, and because
"not one of the decisions relied on by the [Ninth Circuit]" squarely governed the specific
facts at issue, the Court held that the officer did not violate clearly established law. Id.
at 1154.
A clearly established right is sufficiently clear when every reasonable official
would have understood that what he or she is doing violates that right. Reichle, 566 U.S.
at 664. Plaintiff points to no controlling precedent establishing that deliberate shoving in
the course of an arrest without causing any specified temporary or permanent injury rises
to the level of a Fourth Amendment violation. Cf Maxwell, 380 F.3d at 109-10
(reversing grant of summary judgment in favor of police officer on excessive force claim
where plaintiff was shoved into a police car and suffered pain, bumps, bruises, and postconcussive syndrome). In the absence of an allegation of a temporary or permanent
injury that is not de minimis, reasonable officers could differ as to whether the shoving in
this case violates the Fourth Amendment. See Figueroa, 825 F.3d at 105 (noting in
conducting the balancing test to determine whether the force used to effect an arrest is
reasonable or excessive, the court must consider "the extent of injury inflicted") (internal
quotation marks omitted). Emotional distress without a corresponding physical injury is
unlikely to suffice. See Warren v. Ewanciw, 2019 WL 589488, at *9 (S.D.N.Y. Feb. 13,
2019) ("[E]motional distress unaccompanied by any physical injury has been held to be
insufficient to support a claim for excessive force") (internal quotation marks omitted);
see also Gonzalez v. Bronx Cty. Hall ofJustice Court Officer Mark Hirschman Shield
7421, 2017 WL 435829, at *4 (S.D.N.Y. Jan. 31, 2017) (granting summary judgment in
officer's favor where plaintiff "expressly disavowed any physical injury from the
incident, stating that her claims are limited to garden variety emotional distress and
21
include no physical injury" on the basis that plaintiffs injury "was de minimis and,
therefore, insufficient to support a claim of excessive force") (internal quotation marks
omitted). Because Plaintiff has not plausibly alleged an excessive force claim,
Defendants' motions to dismiss Plaintiffs excessive force claim are GRANTED.
G.
Plaintiff's Claim for Violation of Due Process.
In Count Six, Plaintiff alleges an unknown employee of Shelburne violated his
Fifth and Fourteenth Amendment rights by not timely delivering a copy of the video of
the February 11, 2014 stop in violation of23 V.S.A. § 1203(k). He asserts his damages
were exacerbated by the violation because the time he was without his driver's license
and other restrictions on his liberty were prolonged.
"The Fifth Amendment's Due Process Clause protects citizens against only federal
government actors, not State officials." Ambrose v. City ofNew York, 623 F. Supp. 2d
454, 466 (S.D.N.Y. 2009) (internal quotation marks omitted). Because Plaintiffs
allegations are not directed to federal government actors, his Fifth Amendment due
process claims must be DISMISSED against all Defendants.
Even if Plaintiff could plausibly allege a municipal employee deprived him of
timely production of the cruiser video, "a public official's failure to follow state law ...
is not equivalent to a federal constitutional injury." Tallman v. City of Chautauqua, 335
F. App'x 92, 94 (2d Cir. 2009). Such a claim is "properly pursued in state court." Id. at
94; see also Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 106 (1984) ("[I]t
is difficult to think of a greater intrusion on state sovereignty than when a federal court
instructs state officials on how to conform their conduct to state law."). Plaintiffs
Fourteenth Amendment due process claims against all Defendants are DISMISSED.
H.
Plaintiff's Claim against Defendant Bohne.
Plaintiff alleges Defendant Bohne, in his capacity as a Shelburne policymaker,
deliberately supported and allowed performance-based award and reward incentive
programs for a purpose other than the administration of justice which led to the violations
of Plaintiffs constitutional rights pursuant to the Fourth and Fourteenth Amendments of
the United States Constitution.
22
With regard to Plaintiffs claims under the Fourth and Fourteenth Amendments,
"[t]o establish the liability of a supervisory official under § 1983, a plaintiff must show
the defendant's personal involvement in the alleged constitutional violations."
Richardson v. Goard, 347 F.3d 431, 435 (2d Cir. 2003); see also Iqbal, 556 U.S. at 667
("In a§ 1983 suit ... the term 'supervisory liability' is a misnomer. Absent vicarious
liability, each Government official, his or her title notwithstanding, is only liable for his
or her own misconduct."). Prior to the Supreme Court's decision in Ashcroft v. Iqbal, the
Second Circuit required a plaintiff to plausibly allege one or more of the following
categories for supervisory liability under § 1983:
( 1) the defendant participated directly in the alleged constitutional
violation, (2) the defendant, after being informed of the violation through a
report or appeal, failed to remedy the wrong, (3) the defendant created a
policy or custom under which unconstitutional practices occurred, or
allowed the continuance of such a policy or custom, (4) the defendant was
grossly negligent in supervising subordinates who committed the wrongful
acts, or (5) the defendant exhibited deliberate indifference to the rights of
[persons] by failing to act on information indicating that unconstitutional
acts were occurring.
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). A plaintiff must also demonstrate
"an affirmative causal link between the supervisor's inaction and [his or] her injury."
Poe v. Leonard, 282 F.3d 123, 140 (2d Cir. 2002).
"The Second Circuit has recognized that, in light of Iqbal, not all of the Colon
factors may have survived, but it has yet to definitively identify which factors remain
applicable." Kucera v. Tkac, 2013 WL 1414441, at *4 (D. Vt. Apr. 8, 2013) (citing
Reynolds v. Barrett, 685 F.3d 193,205 n.14 (2d Cir. 2012)). 9 The "majority view" of the
district courts in the Second Circuit is that "the five Colon categories supporting personal
liability of supervisors still apply as long as they are consistent with the requirements
9
See also Shaw v. Prindle, 661 F. App'x 16, 18 n.2 (2d Cir. 2016) (noting that Iqbal "may have
heightened the requirements for showing a supervisor's personal involvement with respect to
certain constitutional violations[]" but declining to "reach Iqbal's impact on Colon in this case");
Grullon v. City ofNew Haven, 720 F.3d 133, 139 (2d Cir. 2013) (same).
23
applicable to the particular constitutional provision alleged to have been violated." Id.
at *5 (collecting cases) (internal quotation marks omitted).
Because Plaintiff fails to allege Defendant Bohne's personal involvement in any
alleged Fourth Amendment violations, his claim against Defendant Bohne must be
DISMISSED.
I.
Plaintiff's Monell Claims against the Town of Shelburne and
Individual Capacity Claim against Defendant Warden.
In Counts Eight and Nine, Plaintiff asserts § 1983 claims against Defendant
Warden, former Shelburne Police Chief, and against Shelburne based on allegations of
incentive-based performance award and reward programs. (Doc. 45 at 24-26,
,r,r 176-77.)
Plaintiff alleges Defendant Warden was a "top policy maker" for Shelburne's police
department and, in that capacity, he created and sanctioned the reward programs. Id. at
24-25, ,r 176. Plaintiff further asserts that Shelburne, through these reward programs,
"continued a municipal policy, custom or usage that was deliberately indifferent to
citizen motorist's and other[']s [constitutional] right[]s[.]" Id. at 26, ,r 177.
Under§ 1983, "local governments are responsible only for their own illegal acts[;]
... [t]hey are not vicariously liable under§ 1983 for their employees' actions." Connick
v. Thompson, 563 U.S. 51, 60 (2011) (internal quotation marks and citations omitted)
(concluding municipalities can be held liable "if the governmental body itself subjects a
person to a deprivation of rights or causes a person to be subjected to such deprivation").
A municipality may be liable under§ 1983 only "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 ofE. Haven, 691 F.3d 72, 80 (2d Cir. 2012) (citing Monell
v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)). "Absent such a custom, policy, or
usage, a municipality cannot be held liable on a respondeat superior basis for the tort of
its employee." Id. The plaintiff therefore must plead "three elements: (1) an official
policy or custom that (2) causes the plaintiff to be subjected to (3) a denial of a
constitutional right." Wray v. City ofNew York, 490 F.3d 189, 195 (2d Cir. 2007)
(internal quotation marks omitted). "Official municipal policy includes the decisions of a
24
government's lawmakers, the acts of its policymaking officials, and practices so
persistent and widespread as to practically have the force of law." Connick, 563 U.S.
at 61. Because Plaintiff has failed to plausibly allege a denial of a constitutional right, his
Monell claim at this point cannot proceed.
Even if Plaintiff could plausibly allege a constitutional violation, he must further
allege a causal link between Shelburne's alleged incentive and reward programs and his
alleged injuries. This is because the "first inquiry in any case alleging municipal liability
under§ 1983 is the question whether there is a direct causal link between a municipal
policy or custom and the alleged constitutional deprivation." City of Canton v. Harris,
489 U.S. 378,385 (1989); see also Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir.
2007) ("Although City of Canton addressed a claim of a failure to train, the stringent
causation ... requirement[] set out in that case ha[ s] been applied to a broad range of ...
claims."). "[A] municipality can be liable under§ 1983 only where its policies are the
'moving force [behind] the constitutional violation."' City of Canton, 489 U.S. at 389
(quoting Monell, 436 U.S. at 694 and Polk Cty. v. Dodson, 454 U.S. 312, 326 (1981)).
Assuming without deciding that Plaintiff has adequately alleged the existence of a
municipal policy, see Davis v. City ofNew York, 228 F. Supp. 2d 327, 336 (S.D.N.Y.
2002), ajf'd, 75 F. App'x 827 (2d Cir. 2003) ("In determining municipal liability, it is
necessary to conduct a separate inquiry into whether there exists a 'policy' or 'custom'"),
because the Vermont Superior Court ruled it was "satisfied that reasonable suspicion for
the stop existed as a result of the speeding violation[,]" (Doc. 69-3 at 6), Plaintiff has not
plausibly alleged the traffic stop was caused by Shelburne's policy of conducting "bogus"
DUI stops. (Doc. 45 at 18, ,r 140(e)); see Zahrey v. Coffey, 221 F.3d 342, 350 (2d Cir.
2000) (describing causation as an element of municipality liable under§ 1983).
Plaintiffs claims for municipal liability against Shelburne and for liability of a
supervisory official under§ 1983 against Defendant Warden in his individual capacity
are therefore be DISMISSED.
25
J.
Plaintiff's Abuse of Process Claim.
In Count Ten, Plaintiff alleges a claim for abuse of process arising from Officer
McKnight's affidavit that allegedly contained false information. To state a§ 1983 claim
for abuse of process, a plaintiff must plausibly allege "the defendants had an improper
purpose in instigating the action and that they aimed to achieve a collateral purpose
beyond or in addition to his criminal prosecution." Morales v. City ofNew York, 752
F.3d 234,238 (2d Cir. 2014) (internal quotation marks and alterations omitted). Under
Vermont law, a plaintiff "alleging abuse of process must demonstrate 1) an illegal,
improper or unauthorized use of a court process; 2) an ulterior motive or an ulterior
purpose; and 3) resulting damage to the plaintiff." Weinstein v. Leonard, 2015 VT 136, ,r
22, 200 Vt. 615, 625, 134 A.3d 547, 554-55 (internal quotation marks omitted).
Plaintiff alleges that Officer McKnight acted for his "benefit and ulterior and
collateral objectives beyond plaintiffs criminal prosecution, and that caused plaintiff a
loss of his liberties, as well as monetary and emotional damages[.]" (Doc. 45 at 27,
,r 178.)
This vague allegation is insufficient under Iqbal and Twombly. Even if it were
sufficient, Plaintiff does not plausibly allege that Officer McKnight used the court
process illegally, improperly, or without authorization. When Officer McKnight
forwarded his affidavit in support of probable cause to the prosecuting attorney, Plaintiff
had provided an evidentiary blood alcohol test well in excess of the legal limit. There
was also uncontested evidence that Plaintiff had operated a vehicle on a public highway
immediately prior to the stop. Under Vermont law, it was the state's attorney, not Officer
McKnight, who charged Plaintiff and initiated the court process. See 24 V.S.A. § 36l(a).
Plaintiff makes no allegation that the state's attorney acted in concert with Officer
McKnight in engaging in an illegal, improper, or unauthorized use of a court process.
Plaintiff thus fails to plausibly allege the essential elements of an abuse of process claim
and this claim against Officer McKnight is DISMISSED.
K.
Plaintiff's § 1983 Conspiracy Claim.
In Count Eleven, Plaintiff alleges the Defendants conspired to subject motorists to
unlawful seizures in violation of the Constitution. To state a§ 1983 conspiracy claim, a
26
plaintiff must allege "(1) an agreement between two or more state actors ... ; (2) to act in
concert to inflict an unconstitutional injury; and (3) an overt act done in furtherance of
that goal causing damages." Pangburn v. Culbertson, 200 F.3d 65, 72 (2d Cir. 1999).
In support of his conspiracy claim, Plaintiff alleges the Defendants "engaged in all
of the overt acts alleged in this complaint[.]" (Doc. 45 at 27, 1180.) The SAC alleges
Defendant Warden informed the Shelburne Selectboard "we're pushed by the Federal
government to get all the DUI[]s we could, and all the motor vehicle stops we could[.]"
Id. at 19, 1150. Even assuming an agreement between Defendants, without specific
allegations of overt acts done in furtherance of the alleged conspiracy and a plausible
allegation of a constitutional violation, Plaintiffs § 1983 conspiracy claim must be
DISMISSED. See Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) ("It is well settled
that claims of conspiracy containing only conclusory, vague, or general allegations of
conspiracy to deprive a person of constitutional rights cannot withstand a motion to
dismiss.") (internal quotation marks omitted).
L.
Plaintiff's Claim for Intentional Infliction of Emotional Distress.
In Count Thirteen, styled as a claim for "Outrageous Conduct," Plaintiff alleges
"[b]y their intentional acts and omissions, the Defendants acted outrageously and caused
Plaintiff to suffer severe emotional distress." (Doc. 45 at 28, 1185.) The court construes
this as a state-law claim for intentional infliction of emotional distress ("IIED").
In Vermont, a claim for IIED requires Plaintiff allege conduct that ( 1) is "extreme
and outrageous," (2) is "intentional or reckless," and (3) "causes severe emotional
distress." Baptie v. Bruno, 2013 VT 117,124, 195 Vt. 308,318, 88 A.3d 1212, 1219
(internal quotation marks omitted). "The conduct must be so outrageous in character, and
so extreme in degree, as to go beyond all possible bounds of decency, and be regarded as
atrocious, and utterly intolerable in a civilized community." Denton v. Chittenden Bank,
655 A.2d 703, 706 (Vt. 1994) (internal quotation marks and alterations omitted). "The
test is objective; the plaintiff must show that the harm resulting from the inflicted distress
was so severe that no reasonable person could be expected to endure it." Farnum v.
Brattleboro Retreat, Inc., 671 A.2d 1249, 1256 (Vt. 1995). The Vermont Supreme Court
27
has "declined to find outrageous conduct based solely on the alleged illegal motives
underlying the conduct[.]" Fromson v. State, 2004 VT 29, ,i 18, 176 Vt. 395, 402, 848
A.2d 344, 349.
Plaintiffs bare allegation that "[b]y their intentional acts and omissions, the
Defendants acted outrageously and caused Plaintiff to suffer severe emotional distress[,]"
(Doc. 45 at 28, ,i 185), contains insufficient factual content to allow the court to infer any
Defendant is liable for the intentional infliction of emotional distress. Simply stating the
elements of the tort is insufficient. See Iqbal, 556 U.S. at 678 ("Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.");
see also Sheehy v. Brown, 335 F. App'x 102, 104 (2d Cir. 2009) (noting allegations that
"are so vague as to fail to give the defendants adequate notice of the claims against them"
are subject to dismissal).
Because Plaintiff is self-represented and the court must read his SAC liberally and
to construe it to raise the strongest arguments it suggests, Harris v. Miller, 818 F.3d 49,
57 (2d Cir. 2016) (per curiam) (instructing a reviewing court to afford "special
solicitude" to self-represented litigants), Plaintiffs allegations may be construed as
claiming Officer McKnight caused him an unspecified injury when Plaintiff was
slammed into the open door and back of a police cruiser after Officer McKnight had
wrongfully accused Plaintiff of uncooperative conduct. Although a close question,
without additional factual content, the alleged conduct does not satisfy the exacting
standard required for an IIED claim under Vermont law. See Dulude v. Fletcher Allen
Health Care, Inc., 807 A.2d 390, 398 (Vt. 2002) ("[W]hether a jury could reasonably find
that the conduct at issue meets this test[]" is a "threshold question" for "the court to
determine[.]"); see also Soojung Jang v. Trs. ofSt. Johnsbury Acad., 331 F. Supp. 3d
312, 328 n.11 (D. Vt. 2018) (dismissing IIED clam under Vermont law at pleading
stage); Hovey v. Vermont, 2017 WL 2167123, at *9-10 (D. Vt. May 16, 2017) (noting the
"allegations in this case, taken as true, fall short of establishing outrageous conduct" and
dismissing at the pleading stage). Plaintiffs IIED claim is therefore DISMISSED against
all Defendants.
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M.
Leave to Amend.
Plaintiff has twice amended his Complaint, and thus the court will not grant leave
to amend sua sponte. Because the Second Circuit has cautioned that the court "should
not dismiss a pro se complaint 'without granting leave to amend at least once,"' Garcia v.
Superintendent of Great Meadow Corr. Facility, 841 F.3d 581, 583 (2d Cir. 2016) (per
curiam) (quoting Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000)), Plaintiff may file
a motion seeking leave to amend within twenty (20) days of this Order. See Salahuddin
v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988) ("As a general matter ... the district court has
discretion whether or not to grant leave to amend, and its decision is not subject to review
on appeal except for abuse of discretion[.]") (internal quotation marks and alterations
omitted). In doing so, he should identify the claim or claims he seeks to amend and the
reason or reasons why leave to amend should be granted.
In addition to his motion for leave to amend, Plaintiff should include a proposed
amended filing which shall be entitled "Third Amended Complaint" and shall consist of
numbered paragraphs containing short and plain factual allegations, a short and plain
statement of each legal claim Plaintiff asserts, and a clear and concise statement of the
relief requested. See Fed. R. Civ. P. 8(a) (listing required contents of a pleading that
states a claim for relief). In the Third Amended Complaint, Plaintiff must allege all
claims and name all defendants that Plaintiff intends to include, as the Third Amended
Complaint will take the place of the SAC in all respects. Failure to file a Third Amended
Complaint in the time period provided shall result in the dismissal of this case.
CONCLUSION
The court GRANTS Defendants' motions to dismiss (Docs. 48, 49, 50, 51) and
DISMISSES Plaintiffs Second Amended Complaint.
sf
SO ORDERED.
Dated at Burlington, in the District of Vermont, this
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;2/
day of March, 2019.
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