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Miller v. Zink

United States District Court, D. Vermont

August 20, 2019

DEBI MILLER, Plaintiff
v.
ROBERT ZINK, CHRISTOPHER MURPHY, AND STACEY EDMUNDS-BRICKELL, Defendants.

          OPINION AND ORDER

          William K. Sessions III District Court Judge.

         Plaintiff Debi Miller (“Miller”) owned and operated Dooda's Daycare in North Bennington, Vermont. On May 13, 2016, Miller and her employees at the daycare center noticed that one of the children in their care was not well. Miller called 911 and the child was taken to a hospital. Once in medical care, the child was diagnosed with a serious virus, received treatment, and made a full recovery.

         After this incident, Miller was charged with reckless endangerment and cruelty to a child. The Vermont Department for Children and Families brought an allegation that she placed a child at risk of harm. Eventually, all charges and allegations against Miller were dismissed. Miller brought this suit against various government actors alleging false arrest, malicious prosecution, intentional infliction of emotional distress, and deprivation of her Fourth and Fourteenth Amendment rights. Defendants now move for summary judgment.

         For the reasons set forth below, Defendants' Motion for Summary Judgment is granted in part and denied in part. Summary judgment is granted as to Count II. Summary judgment is granted on Counts I, III, and IV as they relate to Defendant Zink. Summary judgment is denied on Counts I, III, and IV as they relate to Defendants Murphy and Edmunds-Brickell.

         Background

         The Incident on May 13, 2016

         The following narrative of the morning comes from Miller's statements to investigators. While the parties dispute the exact times and certain particulars of the morning, it is undisputed that the following is what she told to investigators and represents her version of the facts.

         According to Miller, the child, S.L., was dropped off asleep at 7:45 a.m. with employee Kristie Clough. ECF 46 at ¶ 25-26. Miller alleges that Clough asked the child's father how her evening was and whether the child had taken any medications. Id. The father did not mention that anything might be wrong with the child. Id. Miller arrived sometime between 8:00 and 8:15 a.m., at which point S.L. was still asleep. Id. at ¶ 27. After Miller's arrival, Clough attempted to wake the child up but S.L. would fall back asleep almost immediately. Id. at ¶ 27, 29. Miller took S.L. from Clough and noted that S.L. seemed “really droggy [sic].” Id. at ¶ 30.

         Miller told Clough to call S.L.'s mother, but S.L.'s mother could not provide an explanation for the child's symptoms. ECF 46 at ¶ 31. Miller instructed Clough to tell the mother to come pick up S.L. Id. at ¶ 32. The mother said she would call right back. Id. at ¶ 33.

         The mother called back at 8:53 a.m. and Miller told her that the child “really needs to be picked up.” Id. at ¶ 35, 54. The mother said it would take her about 20 minutes to get there. Id. Miller responded that she was not comfortable waiting 20 minutes. ECF 46 at ¶ 36. At that point, Miller does not remember if she told the mother she was calling 911 or if she just hung up the phone. Id.

         The mother called S.L.'s doctor's office at 8:57 a.m. Id. at ¶ 55. After speaking with S.L.'s mother, the doctor's office called Dooda's Daycare. Id.

         According to Miller, just as she was holding the phone to call 911, she received a call from S.L.'s doctor's office. Id. at ¶ 37. Miller explained to the doctor's office that S.L. was very sleepy and lethargic. Id. The doctor's office asked if she had called 911 and Miller told them she was just about to do so. ECF 46 at ¶ 39.

         After hanging up with the doctor's office, Miller called 911. 911 records show that the call was received at 9:05 a.m. Id. at ¶ 56, ECF 51-1 at ¶ 56.

         Miller maintains that it was only after placing the 911 call that the child's symptoms started to change for the worse. ECF 46 at ¶ 57. S.L. became pale and started to display stutter breath. Id. Medical personnel took S.L. to the Emergency Department of the Southwestern Vermont Medical Center in Bennington, Vermont, where she was treated by Dr. Paul Vinsel. Id. at ¶ 22. S.L. arrived at the hospital at 9:28 a.m. S.L. was eventually transported to Albany Medical Center via the LifeNet helicopter. Id. at ¶ 85.

         The Investigation

         Later during the day on May 13, 2016, S.L.'s doctor submitted a complaint to the Child Development Division (“CDD”) of the Vermont Department for Children and Families (“DCF”). ECF 46 at ¶ 4. The complaint stated:

A parent called me in tears this morning as Dooda's had called her to come pick up her 12 month old who whey were having trouble awakening - would only open eyes briefly and had shallow breathing. Mom did not have a car and was waiting for a ride. My nurse case manager (at my direction) called Dooda's to urge them to call 911. My nurse reports that Debbie (at Dooda's) seemed to be fairly nonchalant. The child was transported by EMS but required intubation (a breathing tube) and transfer to Albany Medical Center (Cause is still unknown). I am concerned that they don't have a firm grasp on handling emergencies or even what constitutes an emergency. I have had parent's tell me that their children are not allowed to attend the daycare the day after immunizations. This doesn't make sense and is amplified by not understanding on their own that this was a 911 emergency.

Id. Because the complaint concerned a daycare provider, it was referred to the Residential Licensing and Special Investigations Unit (“RLSIU”) of DCF. Id. at ¶ 7. Defendant Stacey Edmunds (now Stacey Edmunds-Brickell) accepted the complaint and assigned the case to Defendant Chris Murphy. Id. at ¶ 8.

         Detective Sergeant Robert Zink, another Defendant in this action and detective with the Vermont State Police Special Investigations Unit, was notified of a possible child abuse investigation and coordinated with the investigators from RLSIU. Id. at ¶ 11.

         Between May 23 and 26 of 2016, Trooper Zink interviewed nine witnesses about the incident, including Clough, other employees of Dooda's Daycare, Dr. Vinsel, and S.L.'s mother. ECF 46 at ¶ 15-24. Zink interviewed Miller twice. Id.

         Trooper Zink alleges that during his investigation, he uncovered multiple discrepancies between Miller's version of events and those offered by other employees and S.L.'s parents. ECF 45.

         First, despite what was said by Dooda's Daycare employees, S.L.'s father denied ever being asked any questions about S.L.'s evening and if she had taken any medications. ECF 46 at ¶ 41. Second, the records of interviews with other employees of Dooda's Daycare revealed slightly different timelines. ECF 46 at ¶ 42-45; ECF 45 at 17; ECF 51-1 at ¶ 28, 34, 41, 42, 44. There were inconsistencies as to when Miller arrived and when Clough and Miller first tried to wake the child. Id. Third, employees of Dooda's Daycare who were present that morning disagreed over whether S.L.'s temperature was ever taken. ECF 46 at ¶ 46. There were also discrepancies, in Miller's own telling, of when employees began using a washcloth to try and wake S.L. Id. at ¶ 47 .

         During Zink's investigation, he also spoke with Dr. Vinsel. Id. at ¶ 88. Vinsel stated that “[t]he child was so altered that, you know, the mental status was so abnormal that I have a hard time believing that a daycare would see that and not recognize, hey, this is really bad.” Id.

         Zink also discovered that while there were video cameras installed inside the daycare center, the actual recording unit had not been working for some months prior to the incident. ECF 46 at ¶ 92-97, Ex. O at 4-6. Miller told Zink the recording unit was not ...


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