United States District Court, D. Vermont
OPINION AND ORDER
William K. Sessions III District Court Judge.
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.
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.
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
Incident on May 13, 2016
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.
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.
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.
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.
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.
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.
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.
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.
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
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
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.
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.
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
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.
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 .
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
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 ...