rivard v. brattleboro ( 2023 )

Vermont Superior Court
Windham Unit
Fi'e“
11/7/2023
VERMONT SUPERIOR COURT 1
fl4 CIVIL DIVISION
Windham Unit Case N0. 22-CV-03222
7 Court Street
Newfane VT 05345
802-365-7979 fifi
wwwvermontjudiciaryorg
Jeffrey Rivard v. Town of Brattleboro
ENTRY REGARDING MOTION
Title: Motion for Summary Judgment (Motion: 5)
Filer: Brian P. Monaghan
Filed Date: July 21, 2023
This matter was brought by Plaintiff Jeffrey Rivard and consists of various allegations against
Defendant Town of Brattleboro. Plaintiff alleges a course of discriminatory conduct, negligence,
and various other ill-defined improprieties.
Before the court now is Defendant’s motion under Rule 56 of Vermont Rules of Civil
Procedure for a summary judgment and dismissal of the matter on all counts with prejudice.
Defendant asserts that none of Plaintiff’ s claims actually suggest that the Town Defendant or any of
its employees were ever in Violation of any law or are in any way liable to Plaintiff. Defendant
provides a memorandum of law, statement of undisputed facts, and supporting exhibits. Plaintiff
opposes Defendant’s motion in various filings and addenda, provides his own “Facts in Dispute,”
supporting exhibits, and in one of his responses appears to move the court for a summary judgment
in his favor. For the reasons to follow, Defendant’s motion for summary judgment is GRANTED.
To the extent that Plaintiff’ s “Sur Reply” can be considered a motion for summary judgment, it is
DENIED for not following the pleading rules or satisfying the legal standard.
I. Summary Judgment Standard
Summary judgment is appropriate where the moving party “shows that there is no genuine
dispute as to any material fact and the movant is entitled to a judgment as a matter of law.” V.R.C.P.
56(a). The initial burden falls on the moving party to show an absence of dispute of material fact.
See Coutztre v. Trainer, 2017 VT 73, flj 9, 205 Vt. 319 (citing V.R.C.P. 56(a)). And while the moving
party has the burden of proof, courts construe “the facts presented in the light most favorable to the
nonmoving party,” Vanderb/oom p. State, Ageng/ omeflm, 2015 VT 103, flj 5, 200 Vt. 150, such that
“the nonmoving party receives the benefit of all reasonable doubts and inferences.” Petterrefl I).
Momgbzm Sczfar Dav/mm PLLC, 2021 VT 16, 1] 9; Robemon v. Mia” Laboratories, Ina, 2004 VT 15, 1] 15,
176 Vt. 356.
Entry Regarding Motion Page 1 of 6
22—CV—03222 Jeffrey Rivard v. Town of Brattleboro
Indeed, in determining the existence of genuine issues of material fact, courts “accept as true
the allegations made in opposition to the motion for summary judgment, so long as they are
supported by affidavits or other evidentiary material.” Robertson, 2004 VT 15, ¶ 15. A fact is material
only if it might affect the outcome of the case. O’Brien v. Synnott, 2013 VT 33, ¶ 9, 193 Vt. 546.
Vermont Rule of Civil Procedure 56(c) sets out a mandatory procedure for demonstrating
that “a fact cannot be or is genuinely disputed.” V.R.C.P. 56(c)(1). The party asserting that a fact is
not disputed, or is disputed, must file “a separate and concise statement of undisputed material
facts” with “specific citations to particular parts of materials in the record.” Id. The requirements of
Rule 56 are important and where a party does not adequately dispute a statement of undisputed
facts, a court may accept those facts as admitted. See V.R.C.P. 56(e) (stating that where a party fails
to properly support an assertion, the court may, among other options, consider the fact as
undisputed); see also Stone v. Town of Irasburg, 2014 VT 43, ¶ 55, 196 Vt. 356.
To survive a motion for summary judgment, the non-moving party must respond with
specific facts to raise a triable issue and demonstrate sufficient admissible evidence to support a
prima facie case. Dulude v. Fletcher Allen Health Care, Inc., 174 Vt. 74, 79 (2002). The non-moving
party’s opposition to summary judgment “may not rest upon the mere allegations or denials in its
pleadings, but . . . must set forth specific facts showing that there is a genuine issue for trial.” White
v. Quechee Lakes Landowners’ Ass’n, Inc., 170 Vt. 25, 28 (1999) (internal quotations omitted). When a
defendant moves for a summary judgment, he satisfies his legal burden by presenting “at least one
legally sufficient defense that would bar plaintiff’s claim.” Gore v. Green Mountain Lakes Inc., 140 Vt.
262, 266 (quoting 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2734, at 647
(1973)).
Here, Defendant’s motion conforms to the requirements of Rule 56(c)(1) in that it is
supported by the required statement of undisputed facts citing to the record. Plaintiff’s response,
including any implicit Rule 56 motion of his own, however, does not meet the pleading requirements
such replies or motions. Plaintiff’s “Facts in Dispute” does not contain “specific citations to
particular parts of materials in the record” as required by V.R.C.P. 56(c)(2). Instead, Plaintiff
generally disclaims that the record is inaccurate, offers his version of the events, and recounts that
“it is obvious” that the police in Brattleboro “have come after [him].”
Pursuant to V.R.C.P. 56(e), “[i]f a party fails to properly support an assertion of fact or fails
to properly address another party’s assertion of fact as required by Rule 56(c), the court may: …
consider the fact undisputed for the purposes of the motion….” V.R.C.P. 56(e)(2). As such, the
court concludes that Plaintiff has not adequately disputed Defendant’s statement of undisputed facts
and the Court accepts those facts as admitted pursuant to V.R.C.P. 56(e)(2). See Reporter’s Notes,
V.R.C.P. 56, 2003 Amendment (“… entitlement to summary judgment is based on a review of the
pleadings and other documents in the record, the relevant provisions of those documents must be
referred to in the statement of material facts required by Rule 56 (c)(2) in order for them to be
considered by the court in ruling on the motion” (emphasis added)).
Entry Regarding Motion Page 2 of 6
22-CV-03222 Jeffrey Rivard v. Town of Brattleboro
II. Undisputed Facts
On February 2, 2022, Plaintiff was involved in an automobile crash. At the time of the
incident, Plaintiff was a resident of the Town of Brattleboro. Another driver attempted to pass
Plaintiff in a no passing zone, sped to attempt to pass him, and drove to the right crossing into his
lane. Plaintiff intentionally hit the other driver’s vehicle. Officer Ryan Washburne and Officer Tyler
Law of the Brattleboro Police Department responded to the crash. After investigating the incident,
neither officer issued a traffic citation to either party to the accident. Officer Law took from
Plaintiff a small envelope that contained his auto documents.
Plaintiff filed this lawsuit against the Town Defendant on September 28, 2022, alleging that
the Town undertook illegal action against him in the form of discrimination and retaliation. An
additional basis of Plaintiff’s complaint is that officers should have cited the other driver with a
traffic infraction. Plaintiff’s complaint alleges that the Brattleboro Police Officers’ improprieties
constitute discrimination and retaliation that caused Plaintiff to be removed from a homeless shelter,
caused him to be denied emergency housing benefits, and all of this ultimately caused him to
become homeless. However, the staff at Plaintiff’s shelter actually asked Plaintiff to leave the
temporary housing in December 2019 because he was verbally abusive and used threatening
language. Plaintiff alleges that officers discriminated against him because of his status as an
individual with a history of mental health concerns, including depression, anxiety, bipolar disorder
with delusions, and intermittent bouts of rage.
Plaintiff submitted citizen complaints to the Department in August 2020, February 2021,
May 2021, and February 2022. All of these complaints have been investigated and resolved. On
February 18, 2021, Plaintiff filed Citizen complaint #21BB01076. The complaint made several
allegations related to Officer Ryder Carbone’s investigation of a motor vehicle accident, dated
between June and September of 2020. Interim Chief Carignan wrote Plaintiff a letter detailing the
investigation into the complaint and explaining that all matters were determined either unfounded or
that the Officer was exonerated.
On February 2, 2022, Plaintiff filed Citizen complaint #22BB000827. This Complaint
alleged that Officer Bradley Penniman did not include certain statements Plaintiff made in his
narrative report. Chief Norma Hardy wrote Plaintiff a letter dated February 7, 2022, reporting that
there was no misconduct, and explaining that it is not uncommon for officers to summarize and
include general details in writing incident reports. Officer Penniman re-listened to the recorded
interview and added the minor omission. In May of 2021 Plaintiff filed a Citizens complaint alleging
that Officer Kerylow called him a vulgarity (“Dink”). After speaking with a Brattleboro Police
Department investigator, Plaintiff determined that it was no longer necessary to pursue the
complaint.
As a result of his dealings with the Brattleboro Police Department, Plaintiff experienced
sleeplessness and physical pain from the anxiety, paranoia, and insecurity that police would not
respond to his concerns. Plaintiff did not seek and has not provided a record of any counseling or
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22-CV-03222 Jeffrey Rivard v. Town of Brattleboro
treatment for any alleged emotional distress. Plaintiff explains that the provider he had been seeing
was “closed and was subject to complaints.” Plaintiff claims emotional damages in the amount of
$800.00.
III. Analysis
Plaintiff filed his original complaint on September 14, 2022. On September 19, 2022, this
court issued an order requiring Plaintiff to submit an amended complaint due to his failure to
comply with Rule 8(a) of Vermont Rules of Civil Procedure.1 See Entry Order dated September 19,
2022. The original complaint contained a bare list of statutes, and various isolated terms and
phrases. See Plaintiff’s Original Complaint dated September 14, 2022. The complaint failed to
include “a short and plain statement of claim showing that [Plaintiff] is entitled to relief….” See Id.
and Entry Order dated September 19, 2022.
Plaintiff filed an amended complaint on September 26, 2022. The amended complaint was
still difficult to parse and comprehend. The court was forced to engage in speculation to determine
what in particular Plaintiff alleges and seeks. The court ultimately interprets that Plaintiff asserts two
causes of action against Defendant.
In Count 1, Plaintiff alleges specifically that the Brattleboro Police Department Officers
Washburn and Law did not, but should have, issued a traffic infraction to a motor vehicle operator
involved in a crash with Plaintiff on February 2, 2022. Plaintiff’s remaining claim was difficult to
decipher. Ultimately, the court interprets Plaintiff’s claim in Count 2 to allege that the general
course of Defendant’s conduct toward Plaintiff and his family constitutes discrimination and
retaliation. To the extent that Plaintiff asserts additional claims scattered throughout his
submissions, the court does not consider these as they are not asserted in the amended complaint.
Plaintiff never requested the court to amend his complaint to include these claims and they are,
therefore, not properly before the court. The court addresses both counts in turn.
A. Specific Claim that “Officers Did Not But Should Have Issued a Traffic Infraction”
This claim relates to Plaintiff’s driving incident from February 2, 2022. Plaintiff asserts that
Defendant had an obligation to issue a ticket to the other party to the incident. Plaintiff’s Amended
Complaint dated September 26, 2022. Plaintiff does not cite any applicable rule or law to support
his position. Indeed, it appears that law enforcement officers do not have a statutory or common
law duty to issue tickets. Conversely, “[a] well established tradition of police discretion has long
coexisted with apparently mandatory arrest statutes.” Kane v. Lamothe, 2007 VT 91, ¶ 10, 182 Vt. 241(citing Town of Castle Rock v. Gonzales, 545 U.S. 748, 760 (2005). See also V.R.Cr.P. 3(a), (b) (“A law
enforcement officer may arrest without warrant a person whom the officer has probable cause to
1 “A pleading which sets forth a claim for relief, whether an original claim, counterclaim, cross-claim, or third-party
claim, shall contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a
demand for judgment for the relief the pleader seeks.” V.R.C.P. 8(a).
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22-CV-03222 Jeffrey Rivard v. Town of Brattleboro
believe has committed or is committing a felony [or a misdemeanor in the officer’s presence].”
(emphasis added)).
Although there appears to be no implicit or explicit authority mandating law enforcement
officers to issue tickets, Plaintiff’s claim would still fail even if the claim was based in negligence.
“Common law negligence has four elements: a legal duty owed by defendant to plaintiff, a breach of
that duty, actual injury to the plaintiff, and a causal link between the breach and the injury.” Ziniti v.
New England Cent. R.R., Inc., 2019 VT 9, ¶ 15, 209 Vt. 433 (quoting Demag v. Better Power Equip., Inc.,
2014 VT 78, ¶ 6, 197 Vt. 176). Dismissal of a negligence action is appropriate where the plaintiff
has not pled facts that, if true, could establish that the defendant had a duty of care to the plaintiff.
Smith v. Day, 148 Vt. 595, 597 n.1 (1987) (holding that without “a duty of care, an action for
negligence must fail” (quotation omitted)). “The existence of a duty is a question of law to be
decided by the court.” Sorge v. State, 171 Vt. 171, 174 (2000).
As the Vermont Supreme Court held in Kane v. Lamothe,
[t]he State’s law enforcement duties are provided for by statute. The Department of Public
Safety was created “to promote the detection and prevention of crime generally.” 20 V.S.A. §
1811. Included within the Department are the state police, who “shall be peace officers and
shall have the same powers with respect to criminal matters and the enforcement of law
relating thereto as sheriffs, constables, and local police.” Id. § 1914. As the trial court
concluded, the statutes create no special relationship between crime victims and law
enforcement personnel: “The officer’s duty is owed to the community as a whole. It
obviously encompasses the protection of crime victims, but it is shaped primarily by the
need to investigate and prosecute crimes.” Cf. Corbin v. Buchanan, 163 Vt. 141, 144 (1994)
(noting “the absence in Vermont of any general inference of a private action based on
government regulations whose clear purpose is the general welfare”). The statutes do not set
forth any mandatory acts, much less mandatory acts for the protection of a particular class of
persons … the statutes do not create a special duty….
2007 VT 91, ¶ 9, 182 Vt. 241. Accordingly, since a law enforcement officer owes his duty to the
“community as a whole,” and there can be no special duty established in the present case, nor is
there any additional statutory duty to issue a ticket, Plaintiff’s claim in Count 1 must fail.
B. Discriminatory Course of Conduct
The court determines that Plaintiff’s other claim involves what he perceives as a
discriminatory course of conduct by Defendant against Plaintiff and his family. The court infers this
by scrutinizing Plaintiff’s complaint holistically. Plaintiff states that Officer Law took “1 small
envelope which was used to store driver’s insurance and other auto/driver documents but returned
all else [–] a petit larceny, where the envelope is not returned….” Plaintiff’s Amended Complaint
dated September 26, 2022. Plaintiff also mentions “discrimination and retaliation” in the context of
the driving incident, his interactions with the Brattleboro Police in other matters, his unsuccessfully
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22-CV-03222 Jeffrey Rivard v. Town of Brattleboro
attempting to reach out to Brattleboro Police Chief to discuss his issues, and generally not
responding to Plaintiff’s complaints and concerns adequately. This, coupled with the specific
allegation in Count 1 leads the court to believe that the gist of Plaintiff’s complaint is that he is
generally dissatisfied with the way that the Police Department in Brattleboro deals with his concerns,
and he alleges that this constitutes discrimination. And while the court may empathize with
Plaintiff’s perceived situation, there is no remedy a court may offer when Plaintiff’s complaint
includes allegations in a confused detail and does not contain a specific legal provision or a rule
under which to assess alleged discrimination. Plaintiff, in other words, cannot invoke the court’s
jurisdiction to adjudicate free-floating grievances untethered from any law. See Miller v. Human Rights
Commissioners, No. 2022-AP-116, 2022 WL 8012522, at *1 (Vt. Oct. 14, 2022) (unpublished
memorandum). Plaintiff has failed to clearly identify a cognizable legal claim and show how the
evidence in the record supports its legal elements (which also remain unidentified).
If the nonmoving party fails to establish an essential element of its case on which it has the
burden of proof at trial, the moving party is entitled to summary judgment as a matter of law. State v.
G.S. Blodgett Co., 163 Vt. 175, 180 (1995). In the present case, Defendant is entitled to summary
judgment as a matter of law on all counts, as Plaintiff has failed to demonstrate any triable issue and
has not successfully opposed Defendant’s motion for summary judgment, or supported any such
motion he may be considered to have brought.
Order
For the foregoing reasons, Defendant’s motion for summary judgment is GRANTED and
the complaint is dismissed on all counts. To the extent that Plaintiff’s “Sur Reply” can be
considered a motion for summary judgment, it is DENIED for the reasons stated above.
Signed electronically November 7, 2023 pursuant to V.R.E.F 9(d).
_________________________________________
David Barra
Superior Court Judge
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22-CV-03222 Jeffrey Rivard v. Town of Brattleboro