Rivard v. Town of Brattleboro
| Docket Number | 22-CV-03222 |
| Decision Date | 07 November 2023 |
| Citation | 2023 Vt Super 110701 |
| Parties | Jeffrey Rivard v. Town of Brattleboro |
| Court | Superior Court of Vermont |
ENTRY REGARDING MOTION
Title Motion for Summary Judgment (Motion: 5)
Filer Brian P. Monaghan
This matter was brought by Plaintiff Jeffrey Rivard and consists of various allegations against Defendant Town of Brattleboro. Plaintiff alleges a course of discriminatory conduct negligence, and various other ill-defined improprieties.
Before the court now is Defendant's motion under Rule 56 of Vermont Rules of Civil Procedure for a summary judgment and dismissal of the matter on all counts with prejudice. Defendant asserts that none of Plaintiff s claims actually suggest that the Town Defendant or any of its employees were ever in violation of any law or are in any way liable to Plaintiff. Defendant provides a memorandum of law, statement of undisputed facts, and supporting exhibits. Plaintiff opposes Defendant's motion in various filings and addenda, provides his own "Facts in Dispute," supporting exhibits, and in one of his responses appears to move the court for a summary judgment in his favor. For the reasons to follow, Defendant's motion for summary judgment is GRANTED. To the extent that Plaintiffs "Sur Reply" can be considered a motion for summary judgment it is DENIED for not following the pleading rules or satisfying the legal standard.
Summary judgment is appropriate where the moving party "shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." V.R.C.P. 56(a). The initial burden falls on the moving party to show an absence of dispute of material fact. See Couture v. Trainer, 2017 VT 73, ¶ 9, 205 Vt. 319 (citing V.R.C.P. 56(a)). And while the moving party has the burden of proof, courts construe "the facts presented in the light most favorable to the nonmoving party," Vanderbloom v. State, Agency of Transp., 2015 VT 103, ¶ 5, 200 Vt. 150, such that "the nonmoving party receives the benefit of all reasonable doubts and inferences. Tettersen v. Monaghan Safar Ducham PLLC, 2021 VT 16, ¶ 9; Robertson v. Mylan Laboratories, Inc., 2004 VT 15, ¶ 15, 176 Vt. 356.
Indeed, in determining the existence of genuine issues of material fact, courts "accept as true the allegations made in opposition to the motion for summary judgment, so long as they are supported by affidavits or other evidentiary material." Robertson, 2004 VT 15, ¶ 15. A fact is material only if it might affect the outcome of the case. O'Brien r. Synnott, 2013 VT 33, ¶ 9, 193 Vt. 546.
Vermont Rule of Civil Procedure 56(c) sets out a mandatory procedure for demonstrating that "a fact cannot be or is genuinely disputed." V.R.C.P. 56(c)(1). The party asserting that a fact is not disputed, or is disputed, must file "a separate and concise statement of undisputed material facts" with "specific citations to particular parts of materials in the record." Id. The requirements of Rule 56 are important and where a party does not adequately dispute a statement of undisputed facts, a court may accept those facts as admitted. See V.R.C.P. 56(e) ( that where a party fails to properly support an assertion, the court may, among other options, consider the fact as undisputed); see also Stone v. Town of Irasbmg, 2014 VT 43, ¶ 55, 196 Vt. 356.
To survive a motion for summary judgment, the non-moving party must respond with specific facts to raise a triable issue and demonstrate sufficient admissible evidence to support a prima facie case. Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 79 (2002). The non-moving party's opposition to summary judgment "may not rest upon the mere allegations or denials in its pleadings, but. . . must set forth specific facts showing that there is a genuine issue for trial." White v. Quechee Rakes Landowners' Ass'n, Inc., 170 Vt. 25, 28 (1999) (internal quotations omitted). When a defendant moves for a summary judgment, he satisfies his legal burden by presenting "at least one legally sufficient defense that would bar plaintiff's claim." Gore v. Green Mountain Lakes Inc., 140 Vt. 262, 266 .
Here, Defendant's motion conforms to the requirements of Rule 56(c)(1) in that it is supported by the required statement of undisputed facts citing to the record. Plaintiff's response, including any implicit Rule 56 motion of his own, however, does not meet the pleading requirements such replies or motions. Plaintiff's "Facts in Dispute" does not contain "specific citations to particular parts of materials in the record" as required by V.R.C.P. 56(c)(2). Instead, Plaintiff generally disclaims that the record is inaccurate, offers his version of the events, and recounts that "it is obvious" that the police in Brattleboro "have come after [him]."
Pursuant to V.R.C.P. 56(e), "[i]f a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may: ... consider the fact undisputed for the purposes of the motion...." V.R.C.P. 56(e)(2). As such, the court concludes that Plaintiff has not adequately disputed Defendant's statement of undisputed facts and the Court accepts those facts as admitted pursuant to V.R.C.P. 56(e)(2). See Reporter's Notes, V.R.C.P. 56, 2003 Amendment ().
On February 2, 2022, Plaintiff was involved in an automobile crash. At the time of the incident, Plaintiff was a resident of the Town of Brattleboro. Another driver attempted to pass Plaintiff in a no passing zone, sped to attempt to pass him, and drove to the right crossing into his lane. Plaintiff intentionally hit the other driver's vehicle. Officer Ryan Washburne and Officer Tyler Law of the Brattleboro Police Department responded to the crash. After investigating the incident, neither officer issued a traffic citation to either party to the accident. Officer Law took from Plaintiff a small envelope that contained his auto documents.
Plaintiff filed this lawsuit against the Town Defendant on September 28, 2022, alleging that the Town undertook illegal action against him in the form of discrimination and retaliation. An additional basis of Plaintiff's complaint is that officers should have cited the other driver with a traffic infraction. Plaintiff's complaint alleges that the Brattleboro Police Officers' improprieties constitute discrimination and retaliation that caused Plaintiff to be removed from a homeless shelter, caused him to be denied emergency housing benefits, and all of this ultimately caused him to become homeless. However, the staff at Plaintiff's shelter actually asked Plaintiff to leave the temporary housing in December 2019 because he was verbally abusive and used threatening language. Plaintiff alleges that officers discriminated against him because of his status as an individual with a history of mental health concerns, including depression, anxiety, bipolar disorder with delusions, and intermittent bouts of rage.
Plaintiff submitted citizen complaints to the Department in August 2020, February 2021, May 2021, and February 2022. All of these complaints have been investigated and resolved. On February 18, 2021, Plaintiff filed Citizen complaint #21BB01076. The complaint made several allegations related to Officer Ryder Carbone's investigation of a motor vehicle accident, dated between June and September of 2020. Interim Chief Carignan wrote Plaintiff a letter detailing the investigation into the complaint and explaining that all matters were determined either unfounded or that the Officer was exonerated.
On February 2, 2022, Plaintiff filed Citizen complaint #22BB000827. This Complaint alleged that Officer Bradley Penniman did not include certain statements Plaintiff made in his narrative report. Chief Norma Hardy wrote Plaintiff a letter dated February 7, 2022, reporting that there was no misconduct, and explaining that it is not uncommon for officers to summarize and include general details in writing incident reports. Officer Penniman re-listened to the recorded interview and added the minor omission. In May of 2021 Plaintiff filed a Citizens complaint alleging that Officer Kerylow called him a vulgarity ("Dink"). After speaking with a Brattleboro Police Department investigator, Plaintiff determined that it was no longer necessary to pursue the complaint.
As a result of his dealings with the Brattleboro Police Department, Plaintiff experienced sleeplessness and physical pain from the anxiety, paranoia, and insecurity that police would not respond to his concerns. Plaintiff did not seek and has not provided a record of any counseling or treatment for any alleged emotional distress. Plaintiff explains that the provider he had been seeing was "closed and was subject to complaints." Plaintiff claims emotional damages in the amount of $800.00.
Plaintiff filed his original complaint on September 14, 2022. On September 19, 2022, this court issued an order requiring Plaintiff to submit an amended complaint due to his failure to comply with Rule 8(a) of Vermont Rules of Civil Procedure.[1] See Entry Order dated September 19, 2022. The original complaint contained a bare list of statutes, and various...
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