Note: Decisions of a three-justice panel are not to be considered as precedent before any tribunal.



                                           ENTRY ORDER

                           SUPREME COURT DOCKET NO. 2016-267

                                       JANUARY TERM, 2017

Ronald W. Bryan, Jr.                                   }    APPEALED FROM:
                                                       }
                                                       }    Superior Court, Chittenden Unit,
   v.                                                  }    Civil Division
                                                       }
                                                       }
State of Vermont                                       }    DOCKET NO. 1149-12-15 Cncv

                                                            Trial Judge: Helen M. Toor

                          In the above-entitled cause, the Clerk will enter:

      Plaintiff appeals from the dismissal of his lawsuit against the State of Vermont and state
employees claiming damages as the result of an alleged unlawful arrest and detention. We affirm.

         Plaintiff alleged the following facts in his amended complaint. In December 2012, he was
sentenced to four-to-five days on work crew.* Because he was a resident of Chittenden County,
his case was transferred to the Burlington office of Probation and Parole, a unit of the Vermont
Department of Corrections (DOC). In the spring of 2013, plaintiff met with his probation officer,
who suggested that he complete his work crew at the Cathedral of the Immaculate Conception in
Burlington. Plaintiff agreed to the assignment and worked at the church for six days in the spring
of 2013, as can be verified by an employee of the church. Having fulfilled his obligation, plaintiff
“believed that he was all set and he never heard anything more from his probation officer.” A year
later, in the spring of 2014, plaintiff was arrested at his residence at 10:00 p.m. in front of his wife
and young daughter. Despite his protests that he had completed the required work crew and that
the officers should check with his probation officer, he was taken to jail, where he served his four-
to-five-day sentence. Based on those facts, plaintiff alleged two counts against the State of
Vermont, his probation officer, and an unnamed employee of the DOC: (1) intentional infliction
of emotional distress (IIED); and (2) unlawful arrest and detention, in violation of the Vermont
and federal constitutions and 42 U.S.C. § 1983.


        *
          The sentencing mittimus stated that the sentence, pursuant to the Pre-Approved Furlough
Community Restitution Program, was to be served up to eight hours a day on a schedule to be
determined by the Department of Corrections. The mittimus also warned plaintiff that if he did
“not show up for the sentence as scheduled or . . . follow DOC’s directions,” he would “go directly
to jail and serve the remainder of this sentence in jail without a hearing.” The State asked the
superior court to take judicial notice of this document because its contents were referenced in the
complaint. See Kaplan v. Morgan Stanley & Co., 2009 VT 78, ¶ 10, n.4, 186 Vt. 605 (mem.)
(stating general rule that documents relied upon in complaint merge with complaint and may
properly be considered in connection with motion to dismiss). Plaintiff did not object to this
request and has included the document in his printed case, thus waiving any objection.
         The State filed a motion to dismiss pursuant to Vermont Rule of Civil Procedure 12(b)(6),
arguing that it and its employees were entitled to immunity from suit and that plaintiff had not
alleged facts sufficient for relief to be granted on any of his claims. Plaintiff filed a brief response
that did not address the State’s legal arguments but essentially stated only that his pleading was
sufficient to put defendants on notice that he was suing them for his wrongful incarceration.
Plaintiff stated that further specificity without discovery was not possible because of defendants’
failure to disclose any information concerning what had occurred to cause his arrest. The superior
court granted the State’s motion to dismiss on a motion-reaction form, stating that “[d]efendants
have cited legal authority to support their position that sovereign immunity bars the claim here,
and plaintiff offers no legal argument whatsoever in response.” Plaintiff filed a motion for
reconsideration in which he responded to the State’s claims of immunity. The court denied the
motion, stating that motions for reconsideration are not “a chance for a do-over” or “an opportunity
to raise legal arguments [plaintiff] chose not to make the first time around.”

        On appeal, plaintiff argues that the superior court erred by dismissing the complaint
because the pleading put defendants on notice of his claim that their actions caused his unlawful
arrest and detention, resulting in emotional distress. With respect to the State’s immunity
arguments, plaintiff asserts that one could reasonably assume that defendants’ actions or nonaction
leading to his unlawful detention were ministerial in nature and not done in good faith. The State
responds that the superior court’s decision should be affirmed because: (1) plaintiff did not initially
provide the court with any legal basis to rule in his favor; (2) his complaint failed to state a claim
upon which relief could be granted; and (3) defendants were entitled to immunity from suit.

        At the outset, we reject the State’s suggestion that the superior court’s decision can be
affirmed based solely on plaintiff’s initial failure to respond to the State’s substantive legal
arguments. We review de novo the superior court’s disposition of a motion to dismiss, taking all
facts alleged in the complaint as true. Nichols v. Hoffman, 2010 VT 36, ¶ 4, 188 Vt. 1. The
superior court’s decision to dismiss the complaint must be supported by the law, irrespective of
the strength of plaintiff’s response to the State’s motion to dismiss. See Amy’s Enterprises v.
Sorrell, 174 Vt. 623, 625 (2002) (“Failure to respond to a Rule 12(b)(6) motion to dismiss for
failure to state a claim does not necessarily warrant granting the motion for dismissal, unless the
complaint does not sufficiently state a claim upon which relief can be granted.”); Goldberg v.
Danaher, 599 F.3d 181, 183-84 (2d Cir. 2010) (stating that plaintiff’s failure to respond to motion
to dismiss does not necessarily warrant dismissal because “the sufficiency of a complaint is a
matter of law that the district court is capable of determining based on its own reading of the
pleading and knowledge of the law” (quotation omitted)). As noted, in this case the court
dismissed the complaint because defendants “cited legal authority to support their position that
sovereign immunity bars the claim here, and plaintiff offers no legal argument in response.” We
presume that the court found the State’s arguments to be persuasive, irrespective of plaintiff’s
limited response.

        We now turn to whether plaintiff’s complaint stated a claim upon which relief could be
granted. “In determining whether a complaint can survive a motion to dismiss under Rule 12(b)(6),
courts must take the factual allegations in the complaint as true, and consider whether it appears
beyond doubt that there exist no facts or circumstances that would entitle the plaintiff to relief.”
Colby v. Umbrella, Inc., 2008 VT 20, ¶ 5, 184 Vt. 1 (quotation omitted). Courts are not required
to accept as true, however, “conclusory allegations or legal conclusions masquerading as factual
conclusions”) (quotation omitted). Id. ¶ 10. Moreover, although a complaint need not set forth a
detailed statement of facts, it must set forth a statement of the claim along with sufficient factual
clarity to support the elements of the claims and to enable a reasonable response. Id. ¶¶ 7, 10
                                                   2
(upholding dismissal of plaintiff’s IIED claim because complaint failed to allege any facts
supporting claim other than conclusory allegations).

        Notably, in this case, plaintiff is not alleging negligence on the part of defendants but rather
intentional or willful conduct with respect to both of the counts set forth in the complaint. Yet, the
complaint alleges no facts suggesting any intentional or willful conduct on the part of defendants.
Indeed, the complaint does not even indicate whether plaintiff informed his probation officer or
the DOC that he had completed his work crew assignment—even though he certainly would be
aware of that critical information. Nor does the complaint indicate any duty or protocol concerning
the communication of completion of work crew assignments. In short, there is simply nothing in
the complaint to support plaintiff’s conclusory allegations regarding any intentional or willful
conduct on the part of defendants. Cf. Amy’s Enterprises, 174 Vt. at 625 (upholding dismissal of
claim of gross negligence against state employees, who were immune from suit pursuant to 12
V.S.A. § 5602 except for gross negligence or willful conduct, because complaint failed “to assert
facts sufficient to meet requirements of § 5602”). Plaintiff suggests that this lack of information
in the complaint is due to defendants’ failure to disclose the information, but as noted, plaintiff
would necessarily be aware of at least some of this information vital to his claims.

       Affirmed.

                                                  BY THE COURT:


                                                  _______________________________________
                                                  Paul L. Reiber, Chief Justice

                                                  _______________________________________
                                                  John A. Dooley, Associate Justice

                                                  _______________________________________
                                                  Marilyn S. Skoglund, Associate Justice




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