United States District Court, D. Vermont
OPINION AND ORDER GRANTING DEFENDANTS' MOTIONS TO
DISMISS (DOCS. 48, 49, 50, 51)
CHRISTINA REISS, DISTRICT JUDGE.
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.)
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 Shelbume; (10) abuse of process;
(11) conspiracy under 42 U.S.C. § 1983; (12) conspiracy
under 42 U.S.C. § 1985; and (13) intentional infliction
of emotional distress. Plaintiff seeks compensatory and
have moved to dismiss Plaintiffs SAC under Federal Rule of
Civil Procedure 12(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
Procedural History and Background.
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"superseded the original complaint[.]"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.
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 Defendants 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 [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.
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.l.) 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 l.)
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.
The SAC' s Allegations.
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
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. § 1201(a)(2).
Plaintiff alleges that although he did not resist arrest, as
he exited his vehicle, Officer McKnight allegedly
"unnecessarily and forcibly twisted Plaintiffs arm
behind his back in his effort to handcuff him." (Doc. 45
at 8, ¶ 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.
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, ¶ 68 (internal quotation marks
omitted). Officer McKnight pumped the brakes as he said
"sit down ... sit down[.]" Id. ¶ 69
(internal quotation marks omitted). Plaintiff asked Officer
McKnight: "or what?" Id. ¶ 70
(internal quotation marks omitted). Officer McKnight 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. ¶ 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, ¶ 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, ¶ 84 (internal
quotation marks omitted).
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 step into the cruise he told me to push him in. His
behavior was extremely odd.
Id. at 8-9, ¶ 64. 
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 Plaintiff[']s head and causing him
injury and emotional distress." Id. at 11-12,
¶ 91. In response, Plaintiff asked "why did you do
that to me? That's fucked up." Id. at 12,
¶ 92 (internal quotation marks omitted). Officer
McKnight then allegedly "slammed Plaintiffs 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.
¶¶ 93-95 (internal quotation marks omitted).
asked Officer McKnight for assistance entering the SUV,
saying "help me, please, push me." Id.
¶ 96. When he was seated inside the vehicle, Plaintiff
alleges Officer McKnight "told Plaintiff he tried to
kick him." Id. ¶ 97. Plaintiff contends he
"did not kick, or attempt to kick Defendant McKnight,
and responded that T didn't kick you."'
Id. ¶ 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.
¶¶ 99-100 (internal quotation marks omitted).
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 turn. Plaintiff
further alleges Officer McKnight "made allegations,
attempting to paint Plaintiff as acting 'mad'"
during the encounter. Id. at 7, ¶ 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.
February 19, 2014, Plaintiff requested the video recording of
the traffic stop in accordance with 23 V.S.A. § l203(k).
He alleges he received the video on March 6, 2014, after the
ten-day statutory deadline for its production.
April 9, 2014, the Vermont Superior Court held hearings on
both Plaintiffs civil suspension and DUI
charge. 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, ¶ 46)
(internal quotation marks omitted) (first alteration added).
Specifically, the state court found Officer McKnight's
testimony that he observed Plaintiffs vehicle swerving back
and forth and making an abrupt right-hand turn and that
Plaintiffs 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] if he 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
(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)(1). Plaintiff was cited and released.
Vermont Superior Court held:
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]
(Doc. 69-3 at 6-7.) 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 of 23 V.S.A.
§ 1205(h)(1)(A) through (E)." Id. at 7.
Judgment was entered for Plaintiff in the civil suspension
hearing. In the criminal case, Plaintiffs motion to dismiss
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, ¶
Plaintiff alleges that the Shelburne Police Department had an
"internal, public award program for most motor vehicle
stops and DUI[s.]" Id. at 21, ¶ 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, ¶ 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.
Conclusions of Law and Analysis.
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."
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, 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).
Shelburne's Motions to Dismiss under 24 V.S.A. §
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 ...