Rivard v. Windham Cnty. State's Attorney Office
| Docket Number | 23-CV-03108 |
| Decision Date | 14 November 2023 |
| Citation | 2023 Vt Super 111401 |
| Parties | Jeffrey Rivard v. Windham County State's Attorney Office, et al |
| Court | Superior Court of Vermont |
Title Motion to Dismiss (Motion: 4)
Filer Briana T Hauser
Filed Date: August 28, 2023
ENTRY REGARDING MOTION
Before the court are Plaintiff Jeffrey Rivard's claims against multiple State Defendants. In Count 1, Plaintiff asserts a claim of malicious prosecution against the Windham County Deputy State's Attorney ("DSA") Dana J. Nevins. In Count 2, Plaintiff asserts that the Vermont Department of State's Attorneys and Sheriffs ("SAS") failed to provide oversight over prosecutorial activities of DSA Nevins.
Defendants move the court to dismiss the complaint pursuant to V.R.C.P 12(b)(6), for failure to state a claim upon which relief can be granted, on all counts. Plaintiff opposes the motion. Additionally, Plaintiff apparently moves the court to allow him to amend his complaint to include a negligence claim against Dana J. Nevins in his personal capacity. Defendants oppose that motion. To the extent that Plaintiffs "Motion to Amend Complaint" can be considered a motion, it is DENIED.[1] Defendants' motion to dismiss is GRANTED.
On July 21, 2023, Plaintiff filed his complaint and accompanying affidavit in Windham Superior Court. Complaint dated July 21, 2023; "Statement" dated July 21, 2023. Although not immediately apparent, after thorough analysis, the court finds that Plaintiff s complaint alleges two causes of action against the State Defendants. In Count 1, Plaintiff asserts a malicious prosecution claim against DSA Dana J. Nevins. See Complaint; Plaintiff s "Statement" at 1-3. Plaintiff alleges that his malicious prosecution caused him invasion of privacy, defamed him, caused him mental and emotional distress, hurt his ability to provide for his household, and caused him to incur travel and medical expenses.[2] In Count 2, Plaintiff asserts a negligent supervision claim against SAS. See Complaint; Plaintiff's "Statement" at 1. Plaintiff's complaint and the accompanying affidavit, however, never explicitly identify under which legal theory or theories Plaintiff wishes to pursue his claim. Defendants assume that Plaintiff is asserting claims under Vermont tort law and 42 U.S.C. § 1983. State Defendants' Motion to Dismiss at 1-2. To the extent that Plaintiff attempts to allege additional claims throughout his submissions, these are not considered, as Plaintiff never requested to amend the complaint to include them, and they are, therefore, not property before the court.
On August 28, 2023, Defendants filed a motion to dismiss Plaintiff's complaint on all counts for failure to state a claim upon which relief can be granted pursuant to V.R.C.P. 12(b)(6). State Defendants' Motion to Dismiss dated August 28, 2023. Plaintiff opposes the motion. Plaintiff's Opposition to Motion to Dismiss subtitled "Motion to Amend Complaint" dated August 30, 2023. On August 30, 2023, Plaintiff filed a document titled "Opposition to Motion to Dismiss" and subtitled "Motion to Amend Complaint." Id. To the extent that Plaintiff's submission constitutes a motion to amend the complaint, it seeks to add a new personal injury claim against Dana J. Nevins in his personal capacity.[3] Id. at 1-2. Additionally, Plaintiff seeks to amend his claim of malicious prosecution to be against the Windham County State's Attorney. Id. at 8-9.
As noted above, Plaintiff seeks to amend the complaint to include a personal injury claim against Dana J. Nevins in his personal capacity and to amend the malicious prosecution claim to be against the Windham County State's Attorney. In response, Defendants contend that Plaintiff's motion to amend the complaint should be denied as futile. To the extent that Plaintiff's motion seeks any other amendments, these are not considered, as the court cannot ascertain what those purport to be.[4]
Leave to amend a pleading "shall be freely given when justice so requires." V.R.C.P. 15(a). Courts must liberally permit amendments to a party's pleadings to allow maximum opportunity for each claim to be decided on the merits and to enable a party to assert a claim that was overlooked or unknown at an earlier stage. Lillicrap v. Martin, 156 Vt. 165, 170 (1989) (quoting Bevins v. King, 143 Vt. 252, 255 (1983)). "When there is no prejudice to the objecting party, and when the proposed amendment is not obviously frivolous nor made as a dilatory maneuver in bad faith, it is an abuse of discretion to deny the motion [to amend]." Bevins, 143 Vt. 254-55.
In rare cases, however, denial of leave to amend may be justified due to "(1) undue delay; (2) bad faith; (3) futility of amendment; and (4) prejudice to the opposing party." Colly v. Umbrella, Inc., 2008 VT 20, ¶ 4, 184 Vt. 1 (quoting Perkins v. Windsor Hosp. Corp., 142 Vt. 305, 313 (1982)). Indeed, the “court may deny a motion to amend when, among other reasons, amendment would be futile.” Vasseur v. State, 2021 VT 53, ¶ 7, 215 Vt. 224. See also Gus' Catering, Inc. v. Menusoft Sys., 171 Vt. 556, 559 (2000) (mem.) (affirming trial court's refusal to allow amendment of complaint where amendment would have been futile given substantive law). Amendment would be futile if the amended complaint cannot withstand a motion to dismiss. Prive v. Vt. Asbestos Grp., 2010 VT 2, ¶ 13, 187 Vt. 280 (). “The purpose of a motion to dismiss for failure to state a claim upon which relief can be granted is to test the law of the claim, not the facts that support it.” Samis v. Samis, 2011 VT 21, ¶ 9, 189 Vt. 434. In considering a motion to dismiss, courts accept “all facts alleged in the complaint as true and in the light most favorable to the nonmoving party.” Coutu v. Town of Cavendish, 2011 VT 27, ¶ 4, 189 Vt. 336.
In his motion to amend, Plaintiff states that on or about December 3, 2019, "Dana J. Nevins had purposefully bumped his pull cart off [Plaintiff's] bags causing a wincing pain in [his] back and [Nevins] did not apologize for the incident[;] [and] though he claims it was an accident, he is not charged with [d]isorderly [c]onduct or [s]imple [a]ssault." Plaintiff's "Motion to Amend Complaint" at 1-2. The court was initially unsure whether Plaintiff's complaint is that Dana J. Nevins was not criminally charged for the alleged act, or whether the motion asserts an additional civil claim. Ultimately though, Plaintiff's statement, "... I seek damages for negligence and maintain such claim herein," appears to clarify that Plaintiff asserts a distinct personal injury claim. Plaintiff's "Motion to Amend Complaint" at 2.
2005 VT 117, ¶ 22, 179 Vt. 117 (citations cleared up). There is no allegation here that Plaintiff discovered his injuries until some later time. Conversely, Plaintiff must have discovered the injury at or around the time of the incident. This is because he states that the incident caused him "wincing pain," that Mr. Nevins "did not apologize," and that he complained about the incident to the Brattleboro Police. Plaintiffs "Motion to Amend Complaint" at 2; Plaintiff's "Sur Reply" dated September 13, 2023, at 1; Plaintiff's Pre Trial Exhibit 3. Accordingly, the statute of limitations period began to run in December 2019. Therefore, the latest Plaintiff could have brought his claim was December 2022. And since Plaintiff sought to amend his complaint to include personal injury only in August 2023, his claim is time-barred. As a result, the amendment would not survive a motion to dismiss and would be futile.
Next, Plaintiff requests the court to amend his claim of malicious prosecution to be against the Windham County State's Attorney. Plaintiff's "Motion to Amend Complaint" at 9. Defendants argue that the amendment would be futile because the malicious prosecution claim against the Windham County State's Attorney would be barred by absolute prosecutorial immunity. State Defendants' Reply in Support dated September 13, 2023, at 9.
As the court explains fully in section III.B., the Windham County State's Attorney enjoys absolute prosecutorial immunity from civil suits for her activities within that context. Otherwise, the court's analysis in section III.B. is fully applicable to Plaintiff's request to amend his claim of malicious prose...
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