     16-1018
     Tucker v. Decker


                                     UNITED STATES COURT OF APPEALS
                                        FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER

     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
     SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY
     FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
     WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
     MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
     NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
     COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 16th day of March, two thousand seventeen.
 4
 5   PRESENT:
 6              PIERRE N. LEVAL,
 7              GUIDO CALABRESI,
 8              SUSAN L. CARNEY,
 9                          Circuit Judges.
10   _________________________________________
11
12   MARTHA TUCKER,
13
14                      Plaintiff-Appellant,
15
16                              v.                                   No. 16-1018
17
18   LYLE DECKER,
19
20              Defendant-Appellee.
21   _________________________________________
22
23   FOR APPELLANT:                                    PIETRO J. LYNN, Lynn, Lynn, Blackman &
24                                                     Manitsky, P.C., Burlington, VT.
25
26   FOR APPELLEE:                                     KATE T. GALLAGHER, Assistant Attorney
27                                                     General, Montpelier, VT.
28
 1          Appeal from judgment of the United States District Court for the District of
 2   Vermont (Murtha, J.).

 3          UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
 4   ADJUDGED, AND DECREED that the March 23, 2016 judgment entered by the
 5   District Court is AFFIRMED.

 6          Plaintiff Martha Tucker, a former school superintendent of the Caledonia Central
 7   Supervisory Union in Vermont, brought this action against defendant Lyle Decker, a
 8   Vermont State Trooper, alleging that his actions in connection with her prosecution for
 9   failure timely to report an allegation of child abuse violated her rights under the U.S.
10   Constitution and Vermont state law. The charges against Tucker were ultimately dismissed.
11   In her complaint, she alleged that she “suffered significant professional, reputational and
12   other harm as a consequence of Decker’s conduct.” Joint Appendix at 12. Tucker appeals
13   from the judgment entered pursuant to the District Court’s orders (1) granting in part
14   Decker’s motion to dismiss Tucker’s 42 U.S.C. § 1983 malicious prosecution and invasion of
15   privacy claims and (2) granting Decker’s motion for summary judgment as to the remaining
16   § 1983 defamation claim and state law claims. We assume the parties’ familiarity with the
17   underlying facts and the procedural history of the case, to which we refer only as necessary
18   to explain our decision to affirm.

19     I.   Motion to Dismiss

20          We review a district court’s dismissal under Rule 12(b)(6) de novo, accepting as true all
21   factual allegations in the complaint and drawing all reasonable inferences in the plaintiff’s
22   favor. Segarra v. Fed. Reserve Bank of N.Y., 802 F.3d 409, 411 (2d Cir. 2015) (per curiam). “To
23   survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
24   true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678
25   (2009) (internal quotation marks omitted).

26          The District Court dismissed Tucker’s federal malicious prosecution claim,
27   concluding that Decker was entitled to qualified immunity with respect to the claim. A law
28   enforcement officer is entitled to qualified immunity in a suit for malicious prosecution if he
                                                       2
 1   can establish that he had at least arguable probable cause to charge the plaintiff. “Arguable
 2   probable cause exists if either (a) it was objectively reasonable for the officer to believe that
 3   probable cause existed, or (b) officers of reasonable competence could disagree on whether
 4   the probable cause test was met.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (citation
 5   omitted). An officer has probable cause “when he or she has knowledge or reasonably
 6   trustworthy information of facts and circumstances that are sufficient to warrant a person of
 7   reasonable caution in the belief that the person to be [charged] has committed or is
 8   committing a crime.” Id. (citation omitted).

 9          Tucker argues that, based on the knowledge attributed to Decker in the complaint’s
10   allegations, Decker did not have arguable probable cause to issue a citation to her for failure
11   to comply with Vermont’s mandatory reporter statute. During the period relevant to this
12   action, the statute required a person who is a mandatory reporter to notify the state’s
13   Department for Children and Families within 24 hours if he or she has “reasonable cause to
14   believe that any child has been abused or neglected.” Vt. Stat. Ann. tit. 33, § 4913(a) (2013).
15   Because the phrase “reasonable cause to believe” has not been authoritatively interpreted by
16   the Vermont courts, reasonable officers confronted with the knowledge attributed to Decker
17   in the complaint could disagree as to whether there was probable cause to issue a citation.
18   Tucker pointed to the phrase as supporting her own determination not to report
19   immediately the allegation at issue here, which had been presented to her as not credible; but
20   Decker’s interpretation was not unreasonable, either. Decker is therefore entitled to qualified
21   immunity on this claim, and the claim was properly dismissed by the District Court.

22          The District Court also dismissed Tucker’s federal invasion of privacy claim,
23   concluding that because Tucker could not show that she had a reasonable expectation of
24   privacy in her fingerprints and photograph, Decker was entitled to qualified immunity. We
25   believe the District Court may have erred in finding no reasonable expectation of privacy,
26   but agree that given the state of law on this issue, Decker was entitled to qualified immunity
27   on this claim too.

28


                                                     3
 1   II.    Motion for Summary Judgment

 2          After the District Court ruled on Decker’s motion to dismiss, the parties conducted
 3   discovery. Decker then sought and the District Court granted summary judgment on the
 4   remaining claims. We review a district court’s grant of summary judgment de novo, construing
 5   all evidence and drawing all reasonable inferences in favor of the nonmoving party. Mitchell v.
 6   City of New York, 841 F.3d 72, 77 (2d Cir. 2016). We will affirm only if “there is no genuine
 7   dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
 8   Fed. R. Civ. P. 56(a).

 9          The District Court awarded Decker summary judgment on Tucker’s state law
10   malicious prosecution claim, concluding that Decker was entitled to qualified immunity on
11   this claim. Under Vermont law, a defendant is entitled to qualified immunity if he was
12   “(1) acting during the course of [his] employment and acting, or reasonably believing [he
13   was] acting, within the scope of [his] authority; (2) acting in good faith; and (3) performing
14   discretionary, as opposed to ministerial, acts.” Murray v. White, 155 Vt. 621, 627 (1991). Good
15   faith under Vermont law may be found “where an official’s acts did not violate clearly
16   established rights of which the official reasonably should have known.” Id. at 630. The good
17   faith inquiry “does not ask whether plaintiff’s rights were violated,” but rather, whether “the
18   contours of the right [were] sufficiently clear that a reasonable official would understand that
19   what he is doing violates that right,” such that the unlawfulness of his action is “apparent”
20   when considered “[i]n the light of pre-existing law.” Id. (citation omitted). After review of
21   the undisputed facts here, and noting again the uncertain scope of the mandatory reporter
22   statute, we cannot say that a reasonable officer confronted with the facts known to Decker
23   when Tucker was charged would have known that Tucker’s actions did not subject her to
24   criminal liability. Decker is therefore entitled to qualified immunity on this claim as well.

25          The District Court also granted Decker’s motion for summary judgment on Tucker’s
26   federal “stigma-plus” claim based, in part, on its determination that Tucker failed to
27   demonstrate the necessary “plus” factor. To succeed on a stigma-plus claim, a plaintiff must
28   present evidence of stigma—“the utterance of a statement sufficiently derogatory to injure
29   [plaintiff’s] reputation, that is capable of bring proved false, and that he or she claims is
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 1   false”—and a “plus”—a “material state-imposed burden or state-imposed alteration of the
 2   plaintiff’s status or rights.” Vega v. Lantz, 596 F.3d 77, 81 (2d Cir. 2010) (citation omitted).
 3   We agree with the District Court that Tucker has failed to show a material dispute of fact
 4   regarding the “plus” element. Tucker was not subjected to a “state-imposed burden”: she
 5   admits that she voluntarily resigned from her position following her citation by Decker, and,
 6   although she has presented evidence of numerous adverse news reports, she has made no
 7   showing that she was constructively dismissed. Decker is therefore entitled to summary
 8   judgment on this claim.

 9          Finally, the District Court granted Decker’s motion for summary judgment on
10   Tucker’s state defamation and invasion of privacy claims. Regardless of whether we agree
11   with the District Court’s reasoning on these claims, we affirm because we conclude that,
12   under state law, these claims lie exclusively against the state of Vermont. The Vermont Tort
13   Claims Act provides that if a claim arises out of an “act or omission of an employee of the
14   state acting within the scope of employment,” then “the exclusive right of action shall lie
15   against the state of Vermont.” Vt. Stat. Ann. tit. 12, § 5602(a). Tort claims may be brought
16   against the individual employee instead of the state only for the employee’s “gross negligence
17   or willful misconduct.” Id. § 5602(b). Here, we think that no reasonable jury could conclude
18   from the undisputed facts that Decker’s actions amounted to willful misconduct or gross
19   negligence. Tucker’s defamation and invasion of privacy claims therefore lie exclusively
20   against the state of Vermont and were properly dismissed by the District Court.

21                                            *       *      *

22          We have considered plaintiff’s remaining arguments on appeal and find them to be
23   without merit. The judgment of the District Court is AFFIRMED.

24

25                                                        FOR THE COURT:
26                                                        Catherine O’Hagan Wolfe, Clerk of Court




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