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Simuro v. Shedd

United States District Court, D. Vermont

March 7, 2017

ERNEST SIMURO, and ERNEST SIMURO On behalf of K.S., a minor, Plaintiffs,
LINDA SHEDD, Defendant.


          William K. Sessions III, United States District Court Judge.

         Plaintiffs Ernest Simuro (“Simuro”) and Simuro on behalf of his grandson, K.S., brought the present action against Defendant Linda Shedd (“Shedd”), other government officials and the Town of Windsor. In their amended complaint, Plaintiffs asserted a number of federal constitutional claims and torts claims under Vermont state law related to Ernest Simuro's arrest and prosecution for his alleged sexual abuse of his grandson, and for K.S.' subsequent placement into the custody of the Vermont Department of Children and Families (“DCF”).

         Factual Background

         Simuro is currently the adoptive parent of his biological grandson, K.S., who was born in 2003. In K.S.'s early childhood years, Simuro was appointed to be K.S.'s legal guardian because his daughter, Debra Simuro (“Debra”) was unable to care for her child due to an addiction problem. In 2007, Debra became a co-guardian of K.S. with Simuro, and at various points lived in Simuro's home with her son and her partner. According to Simuro, he eventually asked his daughter and her partner to leave the house because he suspected that his daughter and her partner were repeatedly stealing K.S.'s medication.

         K.S. is a special-needs child with significant developmental and emotional challenges, and has received medication for Attention Deficit Hyperactivity Disorder from a young age. His therapist, Dr. Patricia Corrigan, testified that K.S. had apparent relational issues and significant anxiety, which she attributed to his mother's repeated abandonment of K.S., his grandmother's death and other family stressors. K.S. had difficulty cooperating with other children and demonstrated aggressive behavior towards them at times. According to Dr. Corrigan, there were also reports from K.S.'s school of his sexualized behavior. For example, at one point, K.S. talked about having “cocks or penises” for breakfast, masturbated publicly in school, and made drawings depicting his mother and grandfather naked, with representations of their genitalia. She reported these incidents to DCF, and expected that another person would investigate any potential sexual abuse. However, she also testified that these behaviors could be a form of anxiety relief, and that she did not see themes of sexual abuse in K.S.'s play therapy. She testified that there were reports of K.S. wetting his bed every night, another potential, but not decisive, sign of abuse. She described Simuro as an active, positive figure in K.S.'s life, who often advocated for K.S. to receive additional support services at school. Dr. Corrigan also provided supportive counseling to Simuro while she served as K.S.'s therapist.

         In late 2010, when K.S. was seven years old, Debra informed a DCF worker, Erin Keefe (“Keefe”), that K.S. had reported to her that his grandfather “stuck his penis in his butt.” She showed Keefe a video in which she filmed K.S. taking a bath. In the video, Debra prompts K.S. to repeat what he allegedly had told her before she began filming the video. K.S., giggling, eventually responds “yeah” to his mother's question of whether “grandpa” puts his penis in K.S.'s butt. The video was over a year old by the time Debra disclosed it to Keefe. Debra also told Keefe that, as she had asserted to the authorities before, Simuro had sexually abused her as a teenager. Keefe did not obtain a copy of the video during that visit with Debra.

         After speaking with Debra, Keefe called the Windsor Police Department and later received a return call from then-sergeant Linda Shedd (“Shedd”), who was the designated officer at the Department for sexual abuse investigations. Keefe testified that she informed Shedd of the nature of the investigation, and that she believes that her conversation with Shedd on that occasion was brief. Shedd asked Keefe to meet with her at the Child Advocacy Center, where she would interview K.S. Keefe testified that she went to Simuro's home and spoke to Simuro, informing him of the situation and notifying him that she was not allowed to transport K.S. to the interview. Dr. Corrigan eventually took K.S. to the CAC.

         Both Keefe and Shedd then interviewed K.S. at the CAC. Plaintiffs' expert, Dr. Phillip Kinsley, testified about his professional evaluation of Shedd and Keefe's forensic interview techniques after reviewing video footage of the CAC interviews. He characterized Keefe's interview as “not bad, ” stating that she established good rapport with K.S., that she allowed the child to talk openly and that she asked open-ended question. He concluded that K.S. did not make any disclosures of sexual abuse during this interview. Dr. Kinsley was much more critical of Shedd's subsequent interview, however. First, he testified that he did not believe that, given the lack of disclosures produced in Keefe's interviews, it was necessary for Shedd to do a second interview at all. He also opined that Shedd violated all of the forensic interview “rules” to ensure reliability over the course of her interview. According to Dr. Kinsley, Shedd exhibited confirmatory bias, inappropriately introduced herself as an authority figure, did not accept the child's “denials, ” and cornered and “funneled” the child with leading questions. At one point, Shedd asked K.S. to show her how people touch him on a mother goose doll. K.S. looked under the doll's clothing, and said, “‘boing'. . . like Grandpa . . . unpants my pants, then he goes ‘pssst'.” The child then touched the doll on the rear with his thumb. After further questioning by Shedd, the child stated that the touching occurs over the clothes and on his bum, not under the clothes or in his bum.

         Shedd then interviewed Simuro directly. During this interview, Simuro reported that he washed the child with his hands and that he typically bathed him at night rather than in the morning, despite K.S.'s tendency to wet the bed. In the middle of this interview, Shedd called the State's Attorney's office to request guidance on how to proceed with the case. She also alleged that she called Debra Simuro at this time. After making these calls, Shedd placed Simuro under arrest and issued a flash citation for him to appear in court the next day. Shedd and Keefe then accompanied Simuro to his house in order to permit him to pack some belongings. At this time, they interacted with Steven Simuro (“Steven”), Simuro's son and Debra's brother, who stated that he did not believe that Simuro had abused K.S. and that he believed that Debra was a liar.

         Shedd drafted an affidavit outlining her version of the evidence against Simuro and faxed it to the State's Attorneys' office that night. The State's Attorney pursued charges against Simuro based on the facts included in the affidavit, and the charges were eventually dismissed after the State failed to oppose Simuro's motion to dismiss. In addition, the State brought a case against Simuro in family court pursuant to a Child in Need of Care or Supervision (“CHINS”) petition. Steven was permitted to care for the child temporarily immediately following Simuro's arrest, but K.S. was later placed in foster care for several months due to Steven's alleged interference with Debra's relationship with K.S. Steven eventually became a foster parent himself, allowing him to care for K.S. once again until the criminal and family court proceedings against Simuro came to an end.

         Procedural Background

         On September 4, 2015, this Court granted Plaintiffs' motion to dismiss all claims against Defendants Erin Keefe and Janet Melke, social workers employed by DCF. The Court also granted the Town of Windsor's motion for judgment on the pleadings and dismissed the Town of Windsor from the case on April 1, 2016. On that same date, this Court granted in part and denied in part Defendant Shedd's motion for summary judgment. Finally, on November 7, 2016, the Court denied Defendant Shedd's motion for judgment on the pleadings. As a consequence, the only claims remaining for trial were Simuro's claims against Defendant Shedd for false arrest and malicious prosecution under federal and state law, for interference with his constitutional right to familial association, and for intentional infliction of emotional distress, along with K.S.' claim against Defendant Shedd for unlawful seizure.

         The Court held a jury trial on these remaining claims between November 9 and 21, 2016. On November 21, the jury issued a general verdict in favor of Simuro on his federal and state malicious prosecution claims (Counts I and VIII), but against the Plaintiffs on all other counts. It awarded Simuro $100, 000 in compensatory damages and $200, 000 in punitive damages. In addition, the verdict form included a special interrogatory that stated:

If you found in favor of either Plaintiff on any of the above counts, please answer the following questions:
A. Do you find that it was objectively reasonable for Defendant Shedd to believe that probable cause existed?
B. Do you believe that officers of reasonable competence could disagree on whether Defendant Shedd had probable cause to arrest Plaintiff Ernest Simuro?

         The jury answered both questions in the affirmative. After reading the verdict form, the Court noted that the jury's response to the special interrogatory could potentially conflict with the jury's general verdict, and requested that the parties address the potential inconsistency in their post-trial motions. In response, Simuro and Shedd filed cross motions for entry of judgment. Shedd asserts that the special interrogatory is consistent with the jury's general verdict, but requires the Court to grant her qualified immunity on both Simuro's false arrest counts and his malicious prosecution counts. She also contends that the evidence adduced at trial failed to establish the elements of the malicious prosecution counts. Simuro argues that the jury's verdict on malicious prosecution should be honored because the trial record provides a legally sufficient evidentiary basis for a reasonable jury to find for him on those claims. In addition, he requests that the Court enter judgment in his favor on the malicious prosecution counts because the jury's responses to the special interrogatories do not require the Court to grant Shedd qualified immunity on the malicious prosecution claims. Finally, Simuro has submitted a “placeholder” motion for attorneys' fees to preserve his ability to file a full motion after the Court decides the substantive motions for entry of judgment. Both parties recognize that the motion is not ripe yet.

         Separately, Plaintiff K.S. filed a motion for a new trial pursuant to Rule 59 of the Federal Rules of Civil Procedure, arguing that the Court's instructions to the jury were erroneous because they precluded a finding of liability on K.S.' sole claim of unlawful seizure on the basis of one theory previously upheld by the Court. Shedd asserts that the Court's instruction was not erroneous and that any potential error would be harmless. For the reasons outlined below, the Court denies Defendant Shedd's motions and K.S.'s motion for a new trial, and grants Simuro's motion for entry of judgment on his malicious prosecution counts.


         1. Whether Defendant Shedd is entitled to qualified immunity on Simuro's malicious prosecution counts

         Rule 49 of the Federal Rules of Civil Procedure requires a court to approve, for entry under Rule 58, an appropriate judgment on the basis of a jury's verdict and answers to special interrogatories where these two sets of responses are consistent. Fed.R.Civ.P. 49(b)(2). However, “[w]hen the answers are consistent with each other but one or more is inconsistent with the general verdict, the court may: (A) approve, for entry under Rule 58, an appropriate judgment according to the answers, notwithstanding the general verdict; (B) direct the jury to further consider its answers and verdict; or (C) order a new trial.” Fed.R.Civ.P. 49(b)(3). When faced with seemingly irreconcilable answers from the jury, courts must “harmonize the jury's several pronouncements if possible rather than use the answers to special questions as weapons for destroying the general verdict.” Julien J. Studley, Inc. v. Gulf Oil Corp., 407 F.2d 521, 526 (2d Cir. 1969). Courts favor reading these responses in a manner that allows the court to uphold the general verdict, so as to protect the parties' Seventh Amendment right to a jury trial. See Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, Ltd., 369 U.S. 355, 364 (1962); Kerman v. City of N.Y., 374 F.3d 93, 121 (2d Cir. 2004).[1]Thus, the Defendant here must overcome the Court's inclination to read the answer to the interrogatory in a manner that upholds the jury's finding of liability for malicious prosecution, as this is the purpose behind judicial efforts to reconcile verdicts with special interrogatories.

         Both parties urge the Court to interpret the jury verdict to be “consistent” with the special interrogatory, but in different ways. Defendant asserts that the jury's general verdict does not encompass an analysis of arguable probable cause, because the jury instruction on probable cause for the malicious prosecution count merely cross-referenced the general definition of probable cause. As a result, the jury likely concluded that it should only analyze whether there was arguable probable cause in the context of false arrest.[2] Nevertheless, she also maintains that the jury would have understood the special interrogatories to apply to Shedd's decision to arrest Simuro and to initiate his prosecution. Therefore, she concludes, the special interrogatory may properly be found to apply to the qualified immunity analysis on the malicious prosecution count as well as the false arrest count. Accordingly, she asserts that the answers to the special interrogatories immunize Shedd from the only count for which the jury found her to be liable.

         In contrast, Plaintiffs contend that the jury verdict and special interrogatory can be read in a manner which permits the jury's verdict of liability on malicious prosecution to stand. They first assert that the jury's pronouncements could stand for the conclusion that the jury found Shedd not liable for false arrest on qualified immunity grounds alone, despite concluding that she conducted the arrest without probable cause. However, they do not explain why this possibility would require the Court to uphold the malicious prosecution verdict.[3] Thus, Simuro's first argument lacks logical weight. Second, Simuro also asserts that the jury's answers could be reconciled if interpreted to mean that Shedd had actual and arguable probable cause to arrest, but that she lacked actual and arguable probable cause to prosecute because new information became available between the time that the arrest was conducted and the prosecution was initiated that reversed Shedd's initial probable cause determination. Since he contends that the special interrogatory response need not apply to the arguable probable cause determination for the prosecution, Simuro maintains that the special interrogatory does not require the Court to grant Shedd immunity from malicious prosecution.

         Although the scope of the special interrogatories is pertinent to the Court's qualified immunity analysis, they are not binding on ...

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