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KIM M. TREON, II v. TREVOR WHIPPLE, individually and in his official
capacity, and the CITY OF BARRE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF VERMONT
July 9, 2002, Decided
July 9, 2002, Filed
(Papers 28 and 31)
The plaintiff alleges the City
of Barre and one of its police officers violated his rights during an
investigation which resulted in his arraignment in Washington Superior Court,
first on a charge of sexual assault, and later on charges of violating his
conditions of release. Both defendants have moved for summary judgment, relying
primarily on the availability of immunity from suit under federal and state
law. For the reasons set forth below, the defendants' Motions for Summary Judgment are GRANTED.
I.
Background
On
a motion for summary judgment, the moving party has the initial burden of
informing the Court of the basis for its motion and of identifying the absence
of a genuine issue of material fact. See, e.g., Chambers v. TRM Copy Centers
Corp., 43 F.3d 29, 36 (2d Cir. 1994). Where, as here, a motion for summary
judgment is supported by affidavits or other documentary evidence, the party
opposing that motion must set forth specific facts showing there is a genuine,
material issue for trial. See Rexnord
Holdings, Inc. v. Bidermann, 21 F.3d 522, 526 (2d Cir. 1994).
To
avoid summary judgment, the opposing party must come forward with enough
evidence to support a verdict in his favor. See Salahuddin v. Coughlin, 781 F.2d 24, 29 (2d Cir. 1986). A
party cannot defeat a pending motion by presenting irrelevant arguments or
metaphysical doubt, conjecture or surmise concerning the facts. See Matsushita Elec. Ind. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). Only
disputes over facts which might affect the outcome of the suit under the
governing law preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986).
Upon review of the submissions
of the parties, the Court finds the following undisputed, material facts. In
December 1997, City of Barre Police Chief Trevor Whipple was a corporal and
juvenile officer assigned to investigate sexual abuse or assault allegations
involving juvenile complainants. See Aff. of Trevor Whipple (appended to Paper
33 as Ex. A) (hereinafter referred to as "Whipple Aff.") at para. 2.
On December 3, 1997, the assistant principal at Spaulding High School told Cpl.
Whipple that a female student, M.W., had reported that she had been sexually
assaulted by the plaintiff, a fellow student at Spaulding. See Whipple Aff. at
para. 3.
M.W. had dated the plaintiff in
September 1997. In her taped statement to Cpl. Whipple made on December 15,
1997, M.W. indicated the plaintiff was intoxicated and had forced her to engage
in sexual intercourse. See Whipple Aff. at paras. 9-10. When confronted, the
plaintiff first denied the assault, and then admitted having sex with M.W.
which perhaps was "too rough." See Whipple Aff. at para. 7. He also
admitted that he had been drinking alcohol and was dealing drugs at school. Id.
Cpl. Whipple presented his
preliminary finding to the Washington County State's Attorney's Office. At the
behest of the State's Attorney's Office, Whipple performed additional
investigation of M.W.'s allegations. See Aff. of Terry Trono (appended to Paper
33 as Ex. E) at paras. 2-4. His investigation included obtaining a statement
from one of the plaintiff's former girlfriends. Like M.W., she indicated the
plaintiff had forced her to have sex, that he had physically abused her during
their relationship, and that he consumed [*288] alcohol and smoked marijuana
regularly. See Whipple Aff. at paras. 11-16.
Cpl. Whipple prepared an affidavit of
probable cause in which he summarized his supplemental investigation. Upon
review, the State's Attorney's Office determined probable cause existed to
arrest and prosecute the plaintiff for sexual assault. See Trono Aff. at para.
4.
On March 9, 1998, Washington
District Court Judge Walter Morris, Jr. found probable cause to arraign the
plaintiff on the sexual assault charge. The Court imposed conditions of
release, including that the plaintiff not come within 500 feet of M.W.
M.W. subsequently contacted Cpl.
Whipple and indicated that, on several occasions, the plaintiff had violated
the "500 feet" condition of release. See Whipple Aff. at para. 24.
Upon investigation of this allegation, Whipple obtained complainant and witness
statements attesting to the fact that the plaintiff had come within 500 feet of
M.W. See Whipple Aff. at para. 26.
The State's Attorney's Office
presented Whipple's affidavit of probable cause to the Washington District
Court. On March 25, 1998, the court arraigned the plaintiff on two counts of
violating his conditions of release. Approximately one month later, the State's
Attorney's Office dismissed the violation of conditions of release charge,
ostensibly to focus the office's attention on the pending sexual assault
charge. See April 29, 1998 Letter from Deputy State's Attorney Stephanie Ilberg
(appended to Paper 33 as Ex. G.).
On April 6, 1998, the plaintiff filed a
motion to dismiss the sexual assault charge on the ground that Cpl. Whipple's
affidavit failed to establish probable cause for the commission of the crime
alleged. On October 20, 1998, Judge Morris issued his Decision and Order. He
concluded:
We agree with the Defendant's
contentions as to the form of the officer's fourteen page probable cause
affidavit in this case. While the officer apparently intended to provide a full
sequential account of his investigation and evidence gathered in the course
thereof, the manner in which the officer recites the evidence renders it
difficult to sort out the evidence which is deemed to be inculpatory and
probative of the conclusion that probable cause exists to believe that an
offense had been committed and that the Defendant committed it.
Notwithstanding poor
draftsmanship, we find and conclude that substantial evidence is presented in
the officer's affidavit to establish probable cause for the allegation against
the Defendant. The affidavit sets forth the alleged victim's account of the
circumstances of the offense, events which preceded the offense, the location
and manner of the Defendant's actions and his course of conduct. Sufficient
detail is presented as to the circumstances of the offense, with corroborative
circumstances and events including the manner and circumstances of revelation of
the alleged offense, as to enable a finding by a preponderance of the evidence,
and excluding modifying evidence, that an offense had been committed and that
the Defendant had committed it.
Paper 33 at Exh. K, attachment 3 at pg. 2
(emphasis in original). Upon independent review and as discussed infra, this
Court finds these conclusions are supported by the record.
In
March 1999, the state dismissed the sexual assault charge against the
plaintiff, citing concern about the impact of the prosecution on M.W. See Aff.
of Stephanie Ilberg (appended to Paper 33 as Ex. F) at para. 7.
On
March 8, 2001, the plaintiff filed the complaint underlying this suit in
Washington Superior Court. Because of plaintiff's reliance on 42 U.S.C. § 1983, the defendants [*289] removed the
matter to this Court on March 29, 2001. See Notice of Removal (Paper 1) at
paras. 3 and 4.
The gravamen of the plaintiff's
complaint is that "Mr. Whipple failed to conduct any type of reasonable
investigation or any type of investigation at all that would be recognizable
and sufficient under any standard of investigation or protocol that was in
effect at the time." Pl's Mem. in Opp. to Barre's Mot. for Summ. J. (Paper
52) at 2. He further claims: "Instead, Whipple admittedly accepted the
story of the complaining witness as true without any critical inquiry of the
truth or veracity of the allegations or the credibility of the witness despite
the many inconsistencies and exculpatory information that was recklessly or
purposely omitted or mischaracterized in his Affidavit as a result of his
incompetence and/or bias." Pl's Mem. in Opp. to Whipple's Mot. for Summ.
J. (Paper 50) at 2. Because the defendants initiated state criminal
prosecutions against him without probable cause, the plaintiff asserts they
have violated his rights under a variety of federal constitutional and state
common law provisions.
II.
Discussion
A.
Municipal Liability
The
plaintiff alleges the City of Barre is responsible for Cpl. Whipple's alleged
"violations and torts [because they] were committed as a result of the
failure of the City of Barre to train or supervise Trevor Whipple and was a
result of their [sic] customs and/or policies." Complaint (Paper 6) at
para. 2. The record before the Court, however, provides no basis for imposing
liability on the City of Barre.
"It is well established that a municipality may not be held liable
[under 42 U.S.C. § 1983] solely on the basis of respondeat superior." Powell
v. Gardner, 891 F.2d 1039, 1045 (2d Cir. 1989). To impose liability on a
municipality, the plaintiff must demonstrate the existence of an
unconstitutional policy or custom adopted by municipal decisionmakers. Bd. of County Comm'rs of Bryan County,
Oklahoma v. Brown, 520 U.S. 397, 403-04, 137 L. Ed. 2d 626, 117 S. Ct. 1382
(1997).
Furthermore,
it is not enough for a § 1983 plaintiff
merely to identify conduct properly attributable to the municipality. The
plaintiff must also demonstrate that, through its deliberate conduct, the
municipality was the "moving force" behind the injury alleged. That
is, a plaintiff must show that the municipal action was taken with the
requisite degree of culpability and must demonstrate a direct causal link
between the municipal action and the deprivation of federal rights.
Id. at 404 (emphasis in original).
The plaintiff has not identified
an unconstitutional policy or custom which has been adopted by Barre's
decision-makers, nor has he presented a sufficiently direct causal link between
his alleged injuries and municipal conduct. He complains about Barre's participation in or
cooperation with the Washington Investigative Network ("WIN").
According to the plaintiff, WIN is a multi-disciplinary unit of police
investigators, prosecutors, and an advocate coordinator who work together to
conduct investigations involving domestic
violence and sexual abuse. See Pl's Mem. in Opp. to Barre's Mot. for
Summ. J. (Paper 52) at 5 et seq. However, the record contains no evidence that
the City's association with WIN has been undertaken for the purpose of denying
the plaintiff or any other male his civil rights. See Kent v. Katz, 146 F. Supp. 2d 450, 458 (D. Vt. 2001) ("In
general, a single incident will not suffice to raise an inference of the
existence of a custom or policy."). The plaintiff's unsupported
speculation that WIN has a secret, sinister agenda and a "real and
[*290]perceived anti-male attitude" which resulted in his arrest, see
generally Paper 52 et seq, provides an insufficient basis for imposing
liability on the City.
Likewise, the plaintiff's
allegation that the City of Barre was negligent in failing to train or
supervise Cpl. Whipple is unsupported. "Only where a municipality's
failure to train its employees in a relevant respect evidences a 'deliberate
indifference' to the rights of its inhabitants can such a shortcoming be
properly thought of as a city 'policy or custom' that is actionable under
Section 1983." City of Canton v. Harris, 489 U.S. 378, 389, 103 L. Ed. 2d
412, 109 S. Ct. 1197 (1989). The record indicates Officer Whipple acted as a
well-trained investigator of patently credible allegations against the
plaintiff. See generally Supplemental Whipple Aff. (appended to Paper 30) at
para. 3 et seq. (setting forth Whipple's training relating to criminal
investigation techniques in general and to the investigation of sexual assault
and child-victim cases). When conducting his investigation, he consulted with
the Office of the State's Attorney for Washington County. In fact, it was the
State's Attorney's Office which determined that Cpl. Whipple's investigation had
yielded probable cause to arrest and prosecute. See Trono Aff. at para. 2. In
short, there is no evidence the City of Barre failed to train or supervise Cpl.
Whipple in conjunction with the investigation of M.W.'s charges against the
plaintiff. See Board v. Brown, 520
U.S. at 411 (A finding of municipal culpability "must depend on a finding
that this officer was highly likely to inflict the particular injury suffered
by the plaintiff.") (emphasis in original).
Lastly, the City of Barre is entitled to immunity from the plaintiff's
state law claims. "In Vermont, as in most jurisdictions, municipalities
can only be held liable for injuries arising from their proprietary, as opposed
to governmental duties." Decker v. Fish, 126 F. Supp. 2d 342, 346 (D. Vt.
2000). In this regard, "there can be little question that police work is a
quintessential governmental function." Id. Therefore, the City of Barre is
immune from plaintiff's state law claims.
B.
Individual Liability
The essence of the plaintiff's
complaint against Cpl. Whipple is that his investigation of M.W.'s sexual
assault charge was inept, incomplete and biased; therefore, he lacked probable
cause to charge or arrest him. See generally Pl.'s Mem. in Opp. to Individual
Def's Mot. for Summ. J. (Paper 50). In response, Cpl. Whipple has asserted
qualified immunity.
"Qualified immunity protects a government official from suit for
any actions that did not violate a clearly established constitutional right and
those actions as to which the official had an objectively reasonable good faith
belief that the action taken was lawful." Smith v. Garretto, 147 F.3d 91,
94 (2d Cir. 1998). "The first inquiry to be made concerning qualified
immunity is whether the plaintiff has 'alleged the violation of a clearly
established constitutional
right'." Id. (citing Siegert v. Gilley, 500 U.S. 226, 231, 114 L. Ed. 2d
277, 111 S. Ct. 1789 (1991)). If the court finds no constitutional right has
been violated, the action is subject to dismissal. See, e.g., Poe v. Leonard,
282 F.3d 123, 132 (2d Cir. 2002).
On
the other hand, if the court finds a violation has occurred, then it must
examine whether the right was clearly established at that time. Id. Viewed
objectively, if officials of "reasonable competence could disagree on the
legality of the defendant's actions" under the circumstances, then that
individual is entitled to immunity." See Thomas v. Roach, 165 F.3d 137, 143 (2d Cir. 1999).
"Without a doubt, the right not to be arrested without probable
cause is clearly established." Martinez v. Simonetti, 202 F.3d 625, 634
[*291] (2d Cir. 2000). But the fact that the charges against the plaintiff
eventually were dismissed does not, in and of itself, suggest Cpl. Whipple did
not have probable cause to arrest or charge him. That is true where, as here,
the dismissals were not tantamount to a finding of "not guilty."
See Murphy v. Lynn, 118 F.3d 938,
948-49 (2d Cir. 1997), cert. denied, 522 U.S. 1115, 140 L. Ed. 2d 114, 118 S.
Ct. 1051 (1998).
"Probable cause to arrest exists when the authorities have
knowledge or reasonably trustworthy information sufficient to warrant a person
of reasonable caution in the belief that an offense has been committed by the
person to be arrested." Lennon v. Miller, 66 F.3d 416, 424 (2d Cir. 1995)
(citation and quotations omitted). "An arresting officer advised of a
crime by a person who claims to be the victim, and who has signed a complaint
or information charging someone with the crime, has probable cause to effect an
arrest absent circumstances that raise doubt as to the victim's veracity."
Singer v. Fulton County Sheriff, 63 F.3d 110, 119 (2d Cir. 1995), cert. denied,
517 U.S. 1189, 134 L. Ed. 2d 779, 116 S. Ct. 1676 (1996).
The
officer's motivation to arrest is irrelevant to the question of probable cause.
Lee v. Sandberg, 136 F.3d 94, 103 n.5 (2d Cir. 1997). When analyzing probable
cause in the context of a qualified immunity defense, the Court need only find
that the defendant had "arguable" probable cause to arrest. See Martinez, 202 F.3d at 634; Lee, 136 F.3d
at 103.
The undisputed facts demonstrate
Cpl. Whipple had probable cause to initiate the charges against the plaintiff.
Both the plaintiff and M.W. were students at the same high school and had dated
during September 1997. In a taped statement, M.W. reported the plaintiff had
forced her to engage in sexual intercourse. An assistant principal reported the
plaintiff initially had denied the incident, but then admitted to having "rough"
sexual intercourse with M.W. When Cpl. Whipple attempted to speak with the
plaintiff about the complaint, the plaintiff made a contradictory statement and
denied that he had been alone with M.W. on the night the assault allegedly took
place. See Whipple Aff. at para. 16.
Later, Cpl. Whipple learned from
one of plaintiff's former girlfriends that, during their brief
relationship, the plaintiff had been
physically and sexually abusive and had frequently used alcohol and marijuana.
See Paper 33 at Ex.A. para. 13. This report supported M.W.'s allegations that,
when intoxicated, the plaintiff had sexually assaulted her.
Cpl. Whipple also had probable
cause to charge the plaintiff with violating
his conditions of release. After his arraignment on March 9, 1998, M.W.
reported that the plaintiff had begun to menace her by waiting for her in the
hallways at school. Cpl. Whipple confirmed this report with other witnesses.
See Whipple Aff. at paras. 25-26.
Lastly, as a municipal officer,
Whipple is entitled to qualified official immunity from the plaintiff's state
law claims. The Vermont Supreme Court has applied the doctrine of qualified
official immunity in cases involving municipal employees. See, e.g., Morway v.
Trombly, 789 A.2d 965, 969 (Vt. 2001); Hudson v. Town of East Montpelier, 161
Vt. 168, 171, 638 A.2d 561 (1993). "Qualified immunity is a judicially
created doctrine that shelters state and municipal officials from suits for
acts performed in the course of their duties." Morais v. Yee, 162 Vt. 366,
410, 648 A.2d 405 (1994). Qualified immunity protects these employees when they
are "(1) acting during their employment and acting, or reasonably believing
they are acting, within the scope of their authority; (2) acting in good faith;
and (3) performing discretionary, [*292]as opposed to ministerial acts." LaShay
v. Dep't of Soc. and Rehab. Serv., 160 Vt. 60, 65, 625 A.2d 224 (1993).
Cpl. Whipple's investigation certainly was part of his employment and
within the scope of his authority, and it involved discretionary actions. See Decker,
126 F. Supp. 2d at 348. Moreover, the State of Vermont has adopted the
objective "good faith" test from § 1983 qualified immunity cases.
See Sabia v. Neville, 165 Vt. 515,
521, 687 A.2d 469 (1996). In this context, the Court's finding that Cpl.
Whipple acted with arguable probable cause under federal law also indicates he
is entitled to qualified immunity under state law. See Kent, 146 F. Supp. 2d at
461, 463 (malicious prosecution is one initiated without probable cause).
Conclusion
The
City of Barre's Motion for Summary Judgment is GRANTED. Defendant Whipple's
Motion for Summary Judgment is GRANTED.
SO ORDERED.
Dated at Brattleboro, Vermont, this 9TH day of July, 2002.
J.
Garvan Murtha
United States District Judge
JUDGMENT IN A CIVIL CASE
Decision by Court. This action came to trial
or hearing before the Court. The issues have been tried or heard and a decision
has been rendered.
Date: July 9, 2002
JUDGMENT ENTERED ON DOCKET