Whiting v. Lillicrap, No. 35-1-15 Oscv (Tomasi, J., September 8, 2015)

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                                                  VERMONT SUPERIOR COURT
                                                      ORLEANS UNIT
                                                      CIVIL DIVISION

                                                                         │
Mark Whiting,                                                            │
 Plaintiff,                                                              │
                                                                         │
  v.                                                                     │      Docket No. 35-1-15 Oscv
                                                                         │
James Lillicrap, et al.,                                                 │
 Defendants.                                                             │

                     Opinion and Order on Plaintiff’s Motion for Default Judgment and
                                  Defendants’ Motion to Dismiss

           Plaintiff Mark Whiting is a pretrial detainee currently in in the custody and

control of Defendant Vermont Department of Corrections (the “Department”), who

is incarcerated at Northern State Correctional Facility (“NSCF”). Plaintiff is

awaiting trial on twelve criminal charges in a case pending in the Criminal Division

of this Unit, Docket No. 566-10-13 Oscr. The charges include four counts of

aggravated sexual assault, four counts of lewd and lascivious conduct with a child,

two counts of obstruction of justice, and one count of violation of an abuse

prevention order.

           In this civil action, Plaintiff seeks money damages totaling $162 million for

alleged wrongful prosecution and detention in connection with his pending criminal

case. Plaintiff filed suit against several individuals who were state employees at

the time the Information was filed, as well as others who were involved in his

criminal case. Against the state defendants -- former Deputy State’s Attorney

James Lillicrap, former Vermont State Police detective Andrew Jensen, and
Department of Children and Families (“DCF”) social worker Renee Hamel --

Plaintiff alleges that they pursued the case against him “in bad faith,” by relying on

false statements made against him by complaining witnesses.

      Plaintiff also seeks damages from several “civilian” (i.e., non-state employee)

individuals, among whom are: complaining witnesses Mykala Longe and Rebecca

Murray; Brittany Lavoie, the mother of Plaintiff’s child (Mason James Whiting);

Jeremy Merriam, Ms. Lavoie’s domestic partner; and Jeremy Stover, who plaintiff

alleges to have abused his child. All of the defendants are being sued in their

individual capacities, although Plaintiff does not identify any particular legal theory

under which his claims are asserted.

      Plaintiff sought a default judgment as against all parties on February 19,

2015, which the Court denied because Plaintiff had not completed service upon the

defendants. The non-state defendants still have not waived service. Plaintiff asks

the Court to reconsider its denial of a default judgment as to the non-state employee

defendants.

      On March 9, 2015, the state defendants waived formal service of process,

pursuant to Vt. R. Civ. P. 4(l). The state defendants, represented by Assistant

Attorney General Megan J. Shafritz, have now moved to dismiss this action under

Vt. R. Civ. P. 12(b)(6). Plaintiff has opposed the motion.

      After reviewing the parties’ memoranda, the Court concludes that Plaintiff is

not entitled to a default judgment and that Plaintiff’s claims against two of the




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state defendants must be dismissed. As to Ms. Hamel, the Court grants Plaintiff

leave to amend his complaint.

                                  Conclusions of Law

      I.     The Standard of Review

      The Vermont Supreme Court disfavors Rule 12(b)(6) motions to dismiss.

“Dismissal under Rule 12(b)(6) is proper only when it is beyond doubt that there

exist no facts or circumstances consistent with the complaint that would entitle

Plaintiff to relief.” Bock v. Gold, 2008 VT 81, ¶ 4, 184 Vt. 575, 576 (mem.). In

analyzing a motion to dismiss, the Court “assume[s] that all factual allegations

pleaded in the complaint are true, accept[s] as true all reasonable inferences that

may be derived from plaintiff's pleadings, and assume[s] that all contravening

assertions in defendant's pleadings are false.” Mahoney v. Tara, LLC, 2011 VT 3,

¶ 7, 189 Vt. 557, 558-59 (mem.) (internal quotation, brackets, and ellipses omitted).

      Despite that rigorous standard, a complaint must still meet a minimum

standard of pleading. Vt. R. Civ. P. 8 requires that a complaint’s allegations show

“the pleader is entitled to relief.” Further, a complaint must contain factual

allegations supporting each element of the claims asserted. Colby v. Umbrella, Inc.,

2008 VT 20, ¶ 10, 184 Vt. 1, 8.




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       II.    Analysis

       A.     The Motion for Default

       Plaintiff states that, on January 16, 2015, he sent waiver-of-service forms to

the non-state defendants and that they have not replied. On this basis, Plaintiff

claims to be entitled to a default judgment. Plaintiff misreads Vt. R. Civ. P. 4(l).

       Under the Vermont Rules of Civil Procedure, defendants are entitled to

personal service of documents that commence legal proceedings, such as the

complaint and summons. Vt. R. Civ. P. 4(d). Rule 4(l) is meant to provide a cheaper

and faster alternative by allowing service of process through the mail. If a

defendant accepts service in this manner, he or she is afforded additional time to

respond to the complaint. If a defendant does not accept service by mail, the Court

will impose the costs subsequently incurred by Plaintiff in effecting personal service

-- unless there is “good cause” for the defendant’s failure to waive personal service.

Vt. R. Civ. P. 4(l)(3).

       The fact that the non-state defendants have refused to waive personal service

does not entitle Plaintiff to judgment on his claim. Vt. R. Civ. P. 4(l)(3); 10A Alan

Wright, Arthur R. Miller, Mary Kay Kane, Federal Practice and Procedure: Civil 3d

§ 2682 (“Before a default can be entered, the court must have jurisdiction over the

party against whom the judgment is sought, which also means that the party must

have been effectively served with process.”). Instead, to commence this action

against the non-state defendants, Plaintiff is now required to effect personal service

on them.



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        Furthermore, the non-state defendants were not even properly served by mail

under Rule 4(l), which requires delivery of documents to each named defendant.

Plaintiff’s certificate of service indicates that he sent a single first-class letter

containing the necessary documents to Ms. Lavoie, with instructions that she

distribute copies of the summons and complaint to the other defendants. While pro

se litigants are often afforded some leeway concerning court procedures, see

Sandgate Sch. Dist. v. Cate, 2005 VT 88, ¶ 9, 178 Vt. 625, 627 (mem.), they are still

bound to follow the ordinary rules of civil procedure, Valteich v. Knott, 139 Vt. 588,

590–91 (1981). Plaintiff’s attempt to comply with Rule 4(l) falls well short of the

mark.

        The Court will grant Plaintiff thirty days from the date of this order to make

personal service upon the non-state defendants in accordance with Rule 4. Failure

to do so may result in dismissal of those claims.

        B.    The Motion to Dismiss

        The state defendants [hereinafter the “State”] argue that all of Plaintiff’s

claims are subject to dismissal on various grounds.1 The State asserts that former

DSA Lillicrap is protected by prosecutorial immunity and that any claim for


1 As noted above, Plaintiff does not identify any particular legal theories under
which he is bringing his claims. The State assumes that Plaintiff is asserting
claims under Vermont tort law and 42 U.S.C. § 1983. In his responsive
memorandum, Plaintiff denies making such claims and contends that his suit arises
under “Rule 3 of the Vermont Rules of Civil Procedure.” To the extent that Plaintiff
means that his arrest violated Vermont Rule of Criminal Procedure 3, which
governs arrest powers, the Court rejects that claim. As discussed, infra at Section
II(B)(2), Plaintiff was arrested by Defendant Jensen for violating facially valid
conditions of release, and such conduct is not actionable. Horton v. Chamberlain,
152 Vt. 351, 353-54 (1989).
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malicious prosecution fails because the underlying criminal proceeding has not

terminated in Plaintiff’s favor. The State contends that any claim for false arrest

against Detective Jensen because his actions were based on probable cause.

Finally, the State argues that Ms. Hamel is protected by the absolute litigation and

quasi-prosecutorial immunities, because the “false claims” alleged by Plaintiff were

made in the context of a DCF proceeding. The Court will examine each of these

issues in turn.

      1.     Malicious Prosecution

      A malicious prosecution claim can potentially state a cause of action for

deprivation of rights under the United States Constitution, pursuant to the

procedural umbrella of 42 U.S.C. § 1983. Section 1983 creates a private right of

action for the “deprivation of any rights, privileges, or immunities secured by the

Constitution and laws” of the United States.” Under Section 1983 (and Vermont

law as well), prosecutors are absolutely immune from civil suits for damages for

acts undertaken within their quasi-judicial authority. Buckley v. Fitzsimmons, 509

U.S. 259, 273 (1993) (“acts undertaken by a prosecutor in preparing for the

initiation of judicial proceedings or for trial, and which occur in the course of his

role as an advocate for the State, are entitled to the protections of absolute

immunity”); Shmueli v. City of New York, 424 F.3d 231, 236 (2d Cir. 2005);

O’Connor v. Donovan, 2012 VT 27, ¶ 6, 191 Vt. 412, 416-17 (Vermont law); see

Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). The immunity is meant to protect

“independence in the charging decision,” and to serve the public trust by ensuring



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that prosecutors are not constrained in their decisions by fear of potential civil

liability. Harrington v. Almy, 977 F.2d 37, 40 (1st Cir. 1992); Warney v. Monroe

County, 587 F.3d 113, 126 (2d Cir. 2009).

      Because charging decisions are well within a DSA’s quasi-judicial power,

even if former DSA Lillicrap had knowingly relied on false testimony as alleged, he

would be protected from suit. See Shmueli 424 F.3d at 237 (“’initiation and pursuit

of a criminal prosecution are quintessential prosecutorial functions”). Absolute

immunity protects prosecutors from all acts, regardless of malicious motive or

intent. Levinsky v. Diamond, 151 Vt. 178, 193–94 (1989); Muzzy v. State, 155 Vt.

279, 281 (1990) (“[prosecutor’s] motive for acting is not subject to inquiry in a

private suit even if there is a claim of willful or malicious conduct” (quotation and

citation omitted)). Any claim raised against former DSA Lillicrap for malicious

prosecution is, therefore, barred by absolute prosecutorial immunity.

      Even if that were not true, Plaintiff’s malicious prosecution cause of action

would be subject to dismissal for failure to state a claim. To amount to malicious

prosecution, a plaintiff must allege and establish that the defendant instituted a

proceeding against him: (1) without probable cause; (2) with malice; and that (3) the

proceeding terminated in the plaintiff’s favor. Anello v. Vinci, 142 Vt. 583, 587

(1983). A proceeding is only “terminated” in a plaintiff’s favor for purposes of a

malicious prosecution claim if it can be determined that the defendant is not guilty

of wrongdoing. Lay v. Pettengill, 2011 VT 127, ¶ 32, 191 Vt. 141, 160

(“[p]roceedings are ‘terminated in favor of the accused’ ... only when their final



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disposition is such as to indicate the innocence of the accused” (internal quotation

omitted)); Kent v. Katz, 146 F. Supp. 2d 450, 460-61 (D. Vt. 2001) (even a

termination by compromise is not sufficient to meet the requirements for a

malicious prosecution case). Here, Plaintiff specifically alleges that his criminal

case remains pending. See Compl. ¶ 3. Accordingly, Plaintiff’s claims for malicious

prosecution cannot be maintained that this juncture.

       2.    False Arrest

       Plaintiff’s cause of action for false arrest against Detective Jensen shares a

similar fate. In Vermont, the tort of false arrest is the “unlawful restraint by one

person of the physical liberty of another.” State v. May, 134 Vt. 556, 559 (1976). It

is similar to false imprisonment in that: (1) the defendant must have intended to

confine the plaintiff; (2) the plaintiff was conscious of the confinement; and (3) the

plaintiff did not consent to the confinement. See Restatement (Second) of Torts

§ 35(1).

       In this instance, the allegedly unlawful arrest was due to a “clerical error” in

Plaintiff’s conditions of release. Plaintiff claims that he had been released on bail

and was arrested by Detective Jensen for residing in Essex County instead of

Orleans County. Plaintiff asserts that the clerical error was made by the court in

drafting his conditions of release because it was intended that he be permitted to

reside at his home in Essex County. See Compl. ¶ 7. Plaintiff does not allege that

Detective Jensen lacked probable cause to arrest him. Instead, he effectively claims

that his conditions of release were transcribed incorrectly by the court. Such



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allegations simply do not amount to a false arrest claim under either state or

federal law.

      Our Supreme Court has long held that an officer’s liability for false

imprisonment based on defective legal process depends upon whether the error is

discoverable by an examination of the instrument itself. Horton v. Chamberlain,

152 Vt. 351, 353-54 (1989). Plaintiff does not allege that the defects in his

conditions of release were readily discoverable. Indeed, the implication from the

complaint is that the conditions of release appeared valid on their face. As a result,

Detective Jensen is entitled to dismissal of the state-law false arrest claim.

      To the extent that Plaintiff also makes a false arrest claim under Section

1983, it fails for the same reason. To state such a claim under Section 1983, the

plaintiff must establish that the officers lacked probably cause for the arrest.

Weyent v. Okst, 101 F.3d 845, 853 (2d Cir. 1996). Officers arresting pursuant to a

warrant that is valid on its face do not lack probable cause even it is later

discovered that the warrant was defective. Dawson v. City of New York, No. 13-CV-

5956, 2014 WL 5020595, at *2 (S.D.N.Y. Oct. 8, 2014). As numerous courts have

held, an “arrest pursuant to a facially valid warrant is normally a complete defense

to a federal constitutional claim for false arrest or false imprisonment made

pursuant to § 1983.” Voyticky v. Village of Timberlake, 412 F.3d 669, 677 (6th

Cir.2005); see Brooks v. City of Aurora, 653 F.3d 478, 483 n.5 (7th Cir. 2011) (noting

same). Accordingly, any federal claim for false arrest must be dismissed.




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      3.     The Claims Against Ms. Hamel

      Lastly, Plaintiff asserts that social worker Hamel made an official report

against him containing false claims and information that she knew to be false.

Compl. ¶ 11(c). Plaintiff does not make any allegation as to the nature of the

report, what was written about him, or whether any harm resulted. The Court can

discern no actionable claim that can be maintained on such allegations.

      While Vermont requires only notice pleading, as noted above, a complaint

must still show that “the pleader is entitled to relief,” and it must contain factual

allegations supporting each element of the claims asserted. Colby, 2008 VT 20,

¶ 10, 184 Vt. at 8.

      Here, the allegations against Hamel fail to provide her notice of the precise

misconduct at issue, other than a vague reference to the fact that she made a “false

report;” the legal basis for any claim based on that conduct; and a description of the

harm that allegedly followed from that conduct. Such information is vital in this

instance because various strains of immunity may apply to Ms. Hamel’s conduct,

depending upon the precise acts at issue. See, e.g., Wilkinson ex rel. Wilkinson v.

Russell, 182 F.3d 89, 104 n.8 (2d Cir. 1999) (discussing types of immunity

potentially available to social workers). The limited allegations of the current

complaint against Ms. Hamel, however, simply do not state any actionable claim.

      Nevertheless, the Court is cognizant that motions to dismiss are disfavored,

and the allegations made by Plaintiff against Ms. Hamel could constitute the

nucleus of a valid claim with additional information. Owing to Plaintiff’s pro se



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status, Zorn v. Smith, 2011 VT 10, ¶ 22, 189 Vt. 219, 228, and in the interest of

resolving this case on the merits, Desjarlais v. Gilman, 143 Vt. 154, 157 (1983), the

Court will not dismiss the claims against Hamel at this time. Instead, it will grant

Plaintiff thirty days from the date of this Order to file and serve an amended

complaint providing further explanation as to his claims against Hamel. Any

answer or renewed motion to dismiss by the State shall be filed within thirty days

of service of the amended complaint.

      III.   Conclusion and Order

      Wherefore, the State’s Motion to Dismiss relative to Defendants Lillicrap,

and Jensen is granted. It is denied without prejudice as to Ms. Hamel. Plaintiff

shall have thirty days from the date of this Order to file and serve any amended

complaint as to Ms. Hamel.

      Plaintiff’s Motion for Default Judgment against Defendants Longe, Murray,

Lavoie, Merriam, and Stover is denied. Plaintiff shall have thirty days from the

date of this order to effectuate service upon those Defendants.

      Dated at Newport, Vermont this ____ day of September, 2015.



                                       _____________________
                                       Timothy B. Tomasi
                                       Superior Court Judge




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