Whitehouse v. State ( 2024 )

Termont Superior Court
Filed 10/08/24
Washington Unit
VERMONT SUPERIOR COURT or ¥
ER} CIVIL DIVISION
Washington Unit Case No. 24-CV-01287
65 State Street
Montpelier VT 05602
802-828-2091 Zar
www.vermontjudiciary.org
Wade Whitehouse v State of Vermont et al
Opinion and Order on the State's Motion for Summary Judgment
Plaintiff Wade Whitehouse claims that State police used unconstitutionally
excessive force while arresting and processing him for violating a court-imposed curfew
condition-of-release late in the evening on January 1, 2023. His principal complaints
appear to be that the police should not have administered Narcan when he slumped over
and became nonresponsive and either should not have placed him in handcuffs or should
not have done so in a manner causing him pain. Mr. Whitehouse characterizes the
alleged excessive force as violating numerous federal constitutional provisions and seeks
$100,000,000 in compensatory damages under 42 U.S.C. § 1983; he does not seek
injunctive relief. The State has filed raa
summary judgment motion addressing the
substance of Mr. Whitehouse's claim.
As a preliminary matter, the Court notes that named defendants include the State
of Vermont and "Unknown Officers," which presumably refers to the police officers
involved in the arrest. The only proof of service in the record relates to the State; there is
no proof of service regarding any individual police officers. Counsel for the State, Debbie
Stevens, Esq., entered her appearance in this case on behalf of the State only.
Nevertheless, counsel expressly seeks summary judgment on the substance of Mr.
Whitehouse's § 1983 claim on behalf of both the State and the "Unknown Officers," even
Order Page 1 of 10
24-CV-01287 Wade Whitehouse v State of Vermont et al
though damages claims are not permissible under 42 U.S.C. § 1983 against the State,
and the Unknown Officers have never been identified and served. See Will v. Michigan,
491 U.S. 58, 71 (1989) (the State is not a person subject to damages claims under § 1983);
Heleba v. Allbee, 160 Vt. 283, 286 (1992). As neither party has raised any issues or
objections to these conceptual and procedural matters, and because the motion poses a
straightforward legal matter, the Court will proceed to rule on the motion as presented.
I. Procedural Standard
Summary judgment procedure is “an integral part of the . . . Rules as a whole,
which are designed ‘to secure the just, speedy and inexpensive determination of every
action.’” Morrisseau v. Fayette, 164 Vt. 358, 363 (1995) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 327 (1986)). Summary judgment is appropriate if the evidence in the
record, referred to in the statements required by Vt. R. Civ. P. 56(c)(1), shows that there
is no genuine issue as to any material fact and that the movant is entitled to judgment as
a matter of law. Vt. R. Civ. P. 56(a); Gallipo v. City of Rutland, 163 Vt. 83, 86 (1994)
(summary judgment will be granted if, after adequate time for discovery, a party fails to
make a showing sufficient to establish an essential element of the case on which the
party will bear the burden of proof at trial). The Court derives the undisputed facts from
the parties’ statements of fact and the supporting documents. Boulton v. CLD
Consulting Engineers, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413, 427. A party opposing
summary judgment may not simply rely on allegations in the pleadings to establish a
genuine issue of material fact. Instead, it must come forward with deposition excerpts,
affidavits, or other evidence to establish such a dispute. Murray v. White, 155 Vt. 621,
Order Page 2 of 10
24-CV-01287 Wade Whitehouse v State of Vermont et al
628 (1991). Speculation is insufficient. Palmer v. Furlan, 2019 VT 42, ¶ 10, 210 Vt. 375,
380.
The State’s motion rigorously complies with Rule 56(c)(1). It is supported by a
detailed statement of undisputed material facts with citations to the record, an affidavit
from one of the police officers involved in Mr. Whitehouse’s arrest plainly based on his
personal knowledge, and numerous video exhibits (both body camera and wall-mounted
footage from the police station) extensively documenting Mr. Whitehouse’s arrest and
treatment at the station.
Mr. Whitehouse was specifically informed through a court notice of the need for
his response to comport with Rule 56. Mr. Whitehouse’s opposition filing does not come
close to complying with Rule 56(c)(2), which requires as follows:
A nonmoving party responding to a statement of undisputed material facts
and asserting that a fact is genuinely disputed, that the materials cited do
not establish the absence of a genuine dispute, or that the moving party
cannot produce admissible evidence to support the fact, must file a
paragraph-by-paragraph response, with specific citations to particular parts
of materials in the record that the responding party asserts demonstrate a
dispute, including depositions, documents, electronically stored information,
affidavits, stipulations (including those made for purposes of the motion
only), admissions, interrogatory answers, or other admissible materials. The
responding party must reproduce each numbered paragraph of the moving
party's statement before including the response thereto. To the extent that
the responding party asserts that there are additional material facts that
should be considered, the party may file a separate and concise statement of
additional material facts in numbered paragraphs, with specific citations to
particular parts of admissible materials in the record.
Mr. Whitehouse filed nothing resembling a “paragraph-by-paragraph response,
with specific citations to particular parts of materials in the record that the responding
party asserts demonstrate a dispute” of fact. Nor did he file any statement of additional
material facts. Though “pro se litigants receive some leeway from the courts, they are
Order Page 3 of 10
24-CV-01287 Wade Whitehouse v State of Vermont et al
still ‘bound by the ordinary rules of civil procedure.’” Zorn v. Smith, 2011 VT 10, ¶ 22,
189 Vt. 219, 228 (citation omitted). Overlooking Mr. Whitehouse’s noncompliance with
the Rule in the circumstances of this case would wholly undermine the purpose of
summary judgment procedure. “As the United States Supreme Court has pointed out,
‘[s]ummary judgment procedure is properly regarded not as a disfavored procedural
shortcut, but rather an integral part of the . . . Rules as a whole, which are designed ‘to
secure the just, speedy and inexpensive determination of every action.’ The central
purpose of summary judgment is ‘to avoid a useless trial.’” Morrisseau v. Fayette, 164 Vt.
358, 363 (1995) (citations omitted).
Accordingly, under Vt. R. Civ. P. 56(e)(2), the Court treats the well-supported facts
asserted in the State’s statement of material facts to be undisputed.
II. Analysis
It helps to review the applicable law before reviewing the facts and how the law
applies to them.
A. Excessive Force
Although Mr. Whitehouse cites numerous constitutional amendments as bases for
his claim, the U.S. Supreme Court has been clear that “all claims that law enforcement
officers have used excessive force—deadly or not—in the course of an arrest,
investigatory stop, or other ‘seizure’ of a free citizen should be analyzed under the Fourth
Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395
(1989). Once it is established that there was a seizure, and here there can be no doubt
that there was one, the following principles guide the analysis:
Determining whether the force used to effect a particular seizure is
“reasonable” under the Fourth Amendment requires a careful balancing of
Order Page 4 of 10
24-CV-01287 Wade Whitehouse v State of Vermont et al
“‘the nature and quality of the intrusion on the individual’s Fourth
Amendment interests’” against the countervailing governmental interests at
stake. Our Fourth Amendment jurisprudence has long recognized that the
right to make an arrest or investigatory stop necessarily carries with it the
right to use some degree of physical coercion or threat thereof to effect it.
Because “[t]he test of reasonableness under the Fourth Amendment is not
capable of precise definition or mechanical application,” however, its proper
application requires careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the
suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by
flight.
The “reasonableness” of a particular use of force must be judged from
the perspective of a reasonable officer on the scene, rather than with the
20/20 vision of hindsight. The Fourth Amendment is not violated by an
arrest based on probable cause, even though the wrong person is arrested,
nor by the mistaken execution of a valid search warrant on the wrong
premises. With respect to a claim of excessive force, the same standard of
reasonableness at the moment applies: “Not every push or shove, even if it
may later seem unnecessary in the peace of a judge’s chambers,” violates the
Fourth Amendment. The calculus of reasonableness must embody
allowance for the fact that police officers are often forced to make split-
second judgments—in circumstances that are tense, uncertain, and rapidly
evolving—about the amount of force that is necessary in a particular
situation.
As in other Fourth Amendment contexts, however, the
“reasonableness” inquiry in an excessive force case is an objective one: the
question is whether the officers’ actions are “objectively reasonable” in light
of the facts and circumstances confronting them, without regard to their
underlying intent or motivation.
Id. at 396–97.
With these standards in mind, it is clear that Mr. Whitehouse’s focus on whether
the police should have exercised their discretion to give him a citation for the curfew
violation rather than arresting him has marginal relevance. Certainly, the police had
probable cause to arrest him. They knew he was in violation of a court-imposed condition
of release. Violations of conditions of release are punishable by up to a “fine of $1,000.00
or imprisonment for six months, or both.” 13 V.S.A. § 7559(a). They are misdemeanors.
Order Page 5 of 10
24-CV-01287 Wade Whitehouse v State of Vermont et al
See 13 V.S.A. § 1 (“Any other provision of law notwithstanding, any offense whose
maximum term of imprisonment is more than two years, for life, or which may be
punished by death is a felony. Any other offense is a misdemeanor.”). In this case, the
misdemeanor was occurring in the police officers’ presence. “A law enforcement officer
may arrest without a warrant a person whom the officer has probable cause to believe
has committed or is committing a misdemeanor in the presence of the officer.” Vt. R.
Crim. P. 3(b). Even if it had not occurred in the officers’ presence, one may be arrested
without a warrant for a curfew violation. See Vt. R. Crim. P. 3(c)(12)(A). Vermont’s
Conditions of Release form expressly advises:
IF YOU VIOLATE ANY OF THESE CONDITIONS, YOU MAY BE
CHARGED WITH A NEW CRIME.
Each violation is subject to prosecution for criminal contempt with a
maximum possible penalty of imprisonment for six months, a $1,000 fine, or
both. Violation of certain conditions may result in your immediate arrest,
and a violation of any condition may result in the issuance of a warrant
seeking your arrest. In addition, the Court may consider revoking your bail,
or you may be subject to more stringent conditions of release. You must
follow these conditions until your case is closed or until the Court changes
the conditions.
Vermont Bail and Conditions for Release Order Form, available at
https://www.vermontjudiciary.org/sites/default/files/documents/200-00344%20-
%20Bail%20%26%20Conditions%20of%20Release%20Order%20-
%20JustUsNet%20%26%20public%20site%20%26%20ODY.pdf. Whatever confusion Mr.
Whitehouse may have had about the matter at the time of his arrest may inform some of
his subjective motivations the night of his arrest, but it has little, if any, relevance to his
excessive force claim.1
1 Mr. Whitehouse cites to page 7 of DOC Directive 430.11 (Response to Furlough
Violations), as though that DOC Policy means something relevant to whether the police
Order Page 6 of 10
24-CV-01287 Wade Whitehouse v State of Vermont et al
B. The Undisputed Facts
The undisputed material facts, as accepted by the Court, may be summarized as
follows. Mr. Whitehouse was shopping in a grocery store late at night. Police officers
were informed that he had a court-imposed curfew condition of release that he was
violating by several hours. They decided to arrest him. Mr. Whitehouse became angry,
rude, and was not cooperative. He did not attempt to flee or fight the officers, but he was
oppositional and struggled as they placed him in handcuffs. Once he was in the police
car, his girlfriend was permitted to hug and kiss him, and she can be seen reaching into
the car.
On the ride to the police station, Mr. Whitehouse became completely silent. Once
there, the rear door was opened, revealing that Mr. Whitehouse was slumped over and
completely nonresponsive to the police officer, who was attempting to get his attention.
He appeared to be completely unconscious. An officer determined to give him two doses
of Narcan. See State v. Finkle, 2018 VT 111, ¶ 2 n.1, 209 Vt. 76, 80 (“Narcan is a brand
name for a nasal-spray form of naloxone, a drug used for emergency treatment of opioid
overdoses.”). He did not immediately revive. The officer then appears to have quickly
and firmly rubbed his chest, and he revived immediately. Upon doing so, he protested
that he had just been sleeping, and that he was very tired after having “partied” so much
over the last few days. Emergency medical technicians (“EMT”) were summoned.
Inside the station, Mr. Whitehouse’s behavior deteriorated promptly and severely.
He started rocking, swaying, and convulsing and could not keep still. Initially he
had authority to arrest him for a violation of a court-imposed condition of release. It does
not. Page 7 has the DOC graduated sanctions rubric for furlough violation purposes. It
has no bearing on this case.
Order Page 7 of 10
24-CV-01287 Wade Whitehouse v State of Vermont et al
complained of the handcuffs. An officer managed to uncuff his hands in response, at
which point one hand was attached to a ring on the wall and the other was free.
Thereafter, the rocking, swaying, and convulsing continued, and he largely was unable to
communicate with the officers or the EMT once they arrived. The EMT promptly took
him to a hospital, ending any police interaction relevant here.
The above narrative is documented almost in its entirety in the video recordings in
the evidence.
C. The Legal Issues
Mr. Whitehouse objects that the police affidavit submitted by the State in support
of summary judgment is not admissible and that the extensive video evidence is
misleading because it does not include the entire course of events the night of the arrest.
The Court perceives no issue as to the admissibility of the police affidavit. It was
authored by one of the police officers involved in the arrest, plainly is based on his
personal knowledge, and is completely consistent with the extensive video recordings of
the events of the evening. Nor the does the Court see any issue as to the extensive video
footage in the record. It covers much of the evening, if not all, and Mr. Whitehouse does
not explain, per Rule 56, evidence of what any missing footage would have revealed.
Mr. Whitehouse appears to view as excessive force the fact that he was handcuffed
and that the police administered Narcan when he was (as he alleges) only sleeping. Mr.
Whitehouse immediately was uncooperative when the police first began the arrest.
There was nothing unreasonable about placing him in handcuffs. To the extent he
argues that the handcuffs injured him in some unreasonable way, there is no evidence of
it in the record. And, when he complained about the handcuffs at the station, the police
Order Page 8 of 10
24-CV-01287 Wade Whitehouse v State of Vermont et al
acted to uncuff him, clearly to avoid any unnecessary discomfort or injury while keeping
him restrained.
Mr. Whitehouse’s Narcan argument also has no merit. The argument appears to
be that he did not need Narcan because he was only sleeping. But the test is one of the
objective reasonableness of the conduct and the need for the use of force. On this record,
the circumstances appearing to the officers reasonably looked like Mr. Whitehouse may
have overdosed on opioids. He was slumped over and entirely nonresponsive. The police
officers who administered the two Narcan doses clearly were trying not to hurt Mr.
Whitehouse but to save his life. Moreover, there is no evidence, supported by a proper
submission, that the Narcan harmed Mr. Whitehouse in any way.2 The record does not
support his claim concerning the use of Narcan. Cf. McFall v. Bass, Case No. 3:20-CV-
973, *2, 2023 WL 2241432 (N.D. Ind. Feb. 24, 2023) (evidence did not support due
process violation of prisoner over alleged wrongful administration of Narcan).
Speaking more broadly, the course of events of the evening is well documented in
the video footage in the record. There is nothing in the video record that comes close to
an unconstitutional excessive force.
Given those rulings, it is unnecessary to address the remaining issues in the
parties’ briefs.3
2 Mr. Whitehouse asserts in argument that the Narcan—rather than any opioids
consumed by him—caused him to experience the witnessed symptoms of overdose. There
is no evidentiary foundation for that allegation. Both parties submitted into the record
documents with certain information about Narcan. Mr. Whitehouse asks the Court to
strike the one submitted by the State. The Court has disregarded both documents for
purposes of this decision and considers Mr. Whitehouse’s request moot.
3
As noted at the outset of the opinion, the State is not a “person” that may be sued under
Section 1983. Will, 491 U.S. at 71. Summary judgment is entered in its favor on that
Order Page 9 of 10
24-CV-01287 Wade Whitehouse v State of Vermont et al
Conclusion
For the foregoing reasons, the State’s motion for summary judgment is granted.
Electronically signed on Monday, October 7, 2024, per V.R.E.F. 9(d).
_______________________
Timothy B. Tomasi
Superior Court Judge
basis as well. Also, while the Court has found in Defendant’s favor, on this record, as to
the merits of the excessive force claim, summary judgment is also supported in favor of
the individual defendants based on qualified immunity. Under these facts, it cannot be
said that the officers acted outside of the scope of their discretionary authority or that
they acted in violation of clearly established law. On that basis, they are also entitled to
qualified immunity. See, e.g, Jones v. Treubig, 963 F.3d 214, 224 (2d Cir. 2020)
(discussing immunity standard).
Order Page 10 of 10
24-CV-01287 Wade Whitehouse v State of Vermont et al