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Simuro v. Shedd

United States District Court, D. Vermont

March 31, 2016

ERNEST SIMURO, & ERNEST SIMURO On behalf of K.S., a minor, Plaintiffs,
LINDA SHEDD, TOWN OF WINDSOR, & DOES I through X, Defendants.



Plaintiffs Ernest Simuro and Simuro on behalf of his grandson, K.S., bring the present action against Defendants Linda Shedd, a former sergeant of the Windsor Police Department, the Town of Windsor, and Does I through X.[1] In their amended complaint, Plaintiffs assert a number of claims pursuant to 42 U.S.C. § 1983 and Vermont state law. The claims arise out of Simuro's arrest and prosecution based on allegations that he sexually assaulted his daughter and K.S., and the resulting seizure of K.S. by the Vermont Department for Children and Families.

Currently pending before the Court are (1) Defendant Town of Windsor's motion for judgment on the pleadings; (2) Defendant Town of Windsor's motion for summary judgment; and (3) Defendant Shedd's motion for summary judgment. For the reasons set forth below, the Court grants the Town of Windsor's motion for judgment on the pleadings, and grants in part and denies in part Shedd's motion for summary judgment. Because the Town of Windsor is dismissed from this case, the Court denies as moot its motion for summary judgment.


I. The Undisputed Facts

Ernest Simuro has two children, Debra and Steven, whom he raised with his late wife Laureen in and around Windsor, Vermont. Debra was born in 1985, and Steven was born in 1983.

In 2003, at the age of 17, Debra gave birth to a son, K.S. Debra developed a drug dependency prior to her pregnancy, and K.S. was born with heroin in his system. From birth, K.S. lived with his grandparents, while Debra moved in and out of the family home. In 2004, when K.S. was roughly 18 months old, the Probate Court for the District of Windsor appointed Simuro and Laureen as K.S.'s co-guardians. Laureen later passed away from cancer in September 2007.

In February 2008, while residing at the Valley Vista Alcohol and Chemical Dependency Inpatient Treatment Center, Debra made claims to both the Windsor Police Department and the Vermont Department for Children and Families ("DCF") that Simuro had sexually abused her since she was a child. Debra further alleged that Simuro was K.S.'s biological father and that K.S. had told her that Simuro was physically abusive with him. Windsor Police Sergeant Linda Shedd responded to Debra's allegations of child abuse by visiting Simuro's home and speaking with K.S. K.S. denied that Simuro had hurt him, and Shedd did not discover any physical evidence of abuse. In addition, Windsor Police Sergeant Phil Call investigated Debra's claims of her own sexual abuse. Call interviewed Debra and indicated in a written report that she recanted her accusations.[2]

Over the next two years, as Simuro cared for K.S., Debra continued to move in and out of the family home. In October 2010, however, after discovering that someone had stolen K.S.'s ADHD medication, Simuro ordered Debra and her then-husband Michael Pitts to leave the house. Debra was eight months pregnant at the time, and Simuro reported the incident to DCF. Due to a prior police report expressing concern that Debra was using illegal drugs during her pregnancy, DCF had already opened a case on Debra. DCF social worker Erin Keefe had been assigned to that case.

On October 18, 2010, Keefe met with Debra at the motel where Debra was staying. During their conversation, Debra told Keefe that Simuro had sexually abused her throughout her childhood. Debra also alleged that Simuro had sexually assaulted K.S. and showed Keefe a video that she had taken of K.S. approximately a year and a half earlier. The video shows K.S. playing in the bathtub while Debra asks him a series of questions. Their conversation proceeds as follows:

Debra: You're recording.
K.S.: I'm recording?
Debra: Yup. Hey buddy, what were you talking about earlier about penis in your butt?
K.S.: There's a penis in my butt.
Debra: There's a penis in your butt?
K.S.: Yup.
Debra: Did Grandpa stick his penis in your butt?
K.S.: Uh-huh. My name is Charlie. See you later.
(Unintelligible). Bye. Bye bye.
Debra: No, [K.S.], Mommy's serious-did Grandpa stick anything in your butt?
K.S.: Uh-yeah.
Debra: Yes?
K.S.: My penis.
Debra: What?
K.S.: My penis.
K.S.: He stuck his penis in your butt?
Debra: Yeah.

ECF No. 155-15, Video #1. K.S. laughs throughout the video.

The following day, on October 19, 2010, Keefe filed a report with DCF. In her report, Keefe indicated that "Debbie is concerned that [K.S.] is living with [Simuro], " and that "Debbie... also stated that she had been sexually abused by her father from the time she was young until she was 18." ECF No. 155-67 at 2. With respect to the bathtub video, Keefe wrote that "Mom said I want you to tell me [K.S.] what you just said a minute ago.' [K.S.] said granpa puts his penis in my butt.'" ECF No. 155-67 at 2. The report did not include any other commentary regarding the video. Keefe then contacted the Windsor Police Department and gave Shedd a copy of her report. Shedd was assigned to handle the case.

That afternoon, Keefe and Shedd each spoke with K.S. in two successive interviews. During Keefe's interview with K.S., which Shedd watched on a closed-circuit video in another room, K.S. indicated that he felt safe at home with Simuro and that no one had touched him anywhere that made him feel unsafe. See ECF No. 155-20. K.S. further stated that Simuro did not give him any bad touches other than "a spank... when [he's] bad." ECF No. 155-20 at 12.

Next, during his interview with Shedd, K.S. again indicated that he felt safe at home, and he replied negatively to the question of whether anyone ever touched him in the "area where the bathing suit covers." ECF No. 155-21 at 2. Shedd later gave K.S. a stuffed animal and asked K.S. to "show me what kind of touching people touch you like." ECF No. 155-21 at 6. K.S. responded, "Boing... like Grandpa... unpants my pants, then he goes psst, '" while making a slapping motion against the animal's rear. ECF No. 155-21 at 6. K.S. proceeded to clarify that Simuro pokes his thumb "on the bum" and not in the bum, and "on top" of his clothes and not under his clothes. ECF No. 155-21 at 6-7. Finally, K.S. stated that Simuro pokes him on the bum when he gets in trouble, and that nothing ever goes in his bum. ECF No. 155-21 at 7.

Later that day, Shedd met with Simuro at the Windsor Police Department. During an hour-long interrogation in which Shedd told Simuro that "we have [K.S] on videotape telling us that you put your penis inside his butt, " Simuro repeatedly denied that he had ever touched K.S. in an inappropriate manner. ECF No. 155-23 at 12. Simuro acknowledged that he used his hands to bathe K.S., and he admitted that "it might be a little strange" that he typically washed K.S. in the evenings despite the fact that K.S. frequently wet the bed. ECF No. 155-23 at 11. Simuro went on to state, however, that with respect to bathing K.S., he has "never thought of it as sexual." ECF No. 155-23 at 20. In addition, Simuro agreed to take a lie detector test, permit a medical examination of K.S., consent to a search of his home computers, and take a DNA test to prove that he was not K.S.'s biological father.

At the conclusion of the interrogation, Shedd advised Simuro that he was being placed under arrest for sexual assault on a child and lewd and lascivious conduct with a child.[3] Shedd informed Simuro that he was no longer free to leave, and issued a citation requiring him to appear in court the next day. Simuro was then released on his own recognizance. As a condition of his release, Simuro was prohibited from leaving Windsor County without the court's permission. He was further prohibited from contacting K.S. or any other individual under the age of 18.

Later that night, Shedd drafted a probable cause affidavit in support of Simuro's prosecution. In the affidavit, Shedd notes that "Keefe states that she has... viewed the tape in which KS tells his mother Grandpa put his penis in my butt.'" ECF No. 160-14 at 1. Shedd then briefly describes Keefe's interview with K.S., and proceeds to characterize her own interaction with K.S. as follows:

I then return to KS with a Mother Goose stuffed animal. KS immediately takes the goose from me and begins to look under her dress. He then pulls down the stuffed animals [sic] undergarments as he states that grampa pulls my pants down' and then KS takes his hand and extends his thumb and shoves it into the backside of the goose as he tells me that grampa pokes me in the butt with his thumb.' KS is very clear that Simuro pulls his pants down often and then pokes him in the butt as he demonstrates on the stuffed animal. Soon after making that disclosure, KS states that he is done talking and wants to leave the interview room.

ECF No. 160-14 at 2. The affidavit concludes with summaries of Shedd's interrogation of Simuro and her alleged telephone call with Debra. When finished, Shedd submitted the affidavit to the State's Attorney's Office, and on October 20, 2010, the State charged Simuro with lewd and lascivious conduct in violation of 13 V.S.A. § 2602, as well as sex assault on a minor in violation of 13 V.S.A. § 3252(d).

Several days later, Keefe prepared an affidavit in support of a CHINS[4] petition seeking to place K.S. in the legal custody of DCF. Simuro had moved out of his house to allow K.S. to continue living in the home with his uncle, Steven, and Keefe now asserted that Steven was an inappropriate caregiver. In support of her position, Keefe stated that Steven "states a lack of belief that his father Ernest is a sexual abuser, " and "is preventing any contact between [K.S.] and his mother." ECF No. 155-72 at 4. Keefe also expressed concern that she had no assurance that Steven would prevent Simuro from contacting K.S. Keefe attached Shedd's probable cause affidavit to her petition, which the State's Attorney's Office filed on October 24, 2010. The following day, the family court granted the State's request, and K.S. was placed in foster care for nearly a month before DCF permitted him to resume living with Steven.

On December 19, 2010, as Simuro's charges related to K.S. were pending, Shedd met with Debra, who again indicated that Simuro had physically and sexually abused her throughout her childhood. During her interview, Debra claimed that Simuro beat her "whenever he was in a bad mood. Sometimes once a week. Sometimes more." ECF No. 155-6 at 1. She further stated that Simuro raped her "at least once a month" from the time that she was 12 years old until her husband moved into the home. ECF No. 155-6 at 2-3. Debra reiterated her allegation that Simuro may be K.S.'s biological father, and stated that she had communicated Simuro's abuse to her ex-boyfriend Benjamin Harper and his mother, Dawn.

Over the next ten days, Shedd spoke with Benjamin, Dawn, and Nicole Boucher, an employee of Valley Vista. Each of them stated that Debra had made allegations in the past about her father's abusive behavior. According to Shedd, Benjamin stated that he did not report the accusations previously because he did not believe them to be true until Simuro was charged with sexually assaulting K.S.

On June 3, 2011, Shedd issued Simuro a citation for sexually assaulting Debra and for violating his conditions of release. Shedd's affidavit in support of the sex assault charge indicates that probable cause arose from her conversations with Debra, Benjamin, Dawn, and Boucher. As grounds for the COR violation, the affidavit notes that one of Simuro's conditions of release provided that he "must not be charged with or have probable cause found for a new offense while this case is open." ECF No 160-38 at 5. In addition, Simuro allegedly left Windsor County without permission and breached the condition prohibiting him from contacting minors. The State subsequently charged Simuro with one count of violating his conditions of release and four counts of sexual assault on Debra.

Together with his attorney, Simuro challenged both the criminal charges brought against him and the DCF decision to substantiate the allegations that he had sexually abused K.S. At Simuro's request, DCF reviewed the bathtub video, the recorded interviews with K.S. and Simuro, and several other relevant documents, and concluded that it was "not appropriate for [Simuro's] name to be placed on the Vermont Child Protection Registry." ECF No. 155-68 at 4. The State's Attorney's Office also determined that Shedd's recitation of her conversation with K.S. was misleading, and it did not oppose Simuro's motion to dismiss the charges ...

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