Barrette v. Vill. of Swanton

1

DEVEN BARRETTE, Plaintiff, v. VILLAGE OF SWANTON, HOWARD CENTER, INC., d/b/a/ HOWARD CENTER, KYLE GAGNE, ROBERT RECORE, LEONARD STELL, JORDAN MICHAEL MOSHER, and JOHN AND JANE DOES I-X, Defendants.

No. 2:22-cv-00129

United States District Court, D. Vermont

March 19, 2024

OPINION AND ORDER GRANTING DEFENDANT THE HOWARD CENTER'S MOTION TO DISMISS THE AMENDED COMPLAINT

(DOC. 86)

Christina Reiss, United States District Court District Judge

Plaintiff Deven Barrette (“Plaintiff') brings this action against Defendants the Village of Swanton; Howard Center Inc., doing business as Howard Center (the “Howard Center”); Kyle Gagne (“Defendant Gagne”) Jordan M. Mosher (“Defendant Mosher”); Robert Recore (“Defendant Recore”); and Leonard Stell (“Defendant Stell”); as well as John and Jane Does I-X (the “Doe Defendants”).

Plaintiffs claims arise from his detention by Swanton Village Police Department (“SVPD”) officers on the night of April 1, 2020, and subsequent treatment by those officers and Northwest State Correctional Facility (“NSCF”) employees. The Amended Complaint (“AC”) asserts eight claims: violation of his Fourth and Fourteenth Amendment rights against excessive force under 42 U.S.C. § 1983 against Defendants Recore, Gagne, and Mosher (Count I); violation of his Fourth and Fourteenth Amendment rights against unlawful detention or seizure under 42 U.S.C. § 1983 against Defendants Recore, Gagne, and Mosher (Count II); violation of his Fourth and Fourteenth Amendment rights against unlawful imprisonment under 42 U.S.C. § 1983 against Defendants Recore, Gagne, and Mosher (Count III); unconstitutional policies, customs, and practices under 42 U.S.C. § 1983 against the Village of Swanton (Count IV); assault and battery against Defendants Recore, Gagne, and Mosher (Count V); violation of the Vermont Constitution, Chapter 1, Article 11, against the Village of Swanton (Count VI); intentional infliction of emotional distress (“IIED”) against Defendants Recore, Gagne, and Mosher (Count VII); and negligence against the Howard Center and Doe Defendants (Count VIII).

Plaintiff is represented by Colin R. Hagan, Esq., David J. Shlansky, Esq., and Frances F. Workman, Esq. The Village of Swanton and Defendants Gagne and Stell are represented by James F. Carroll, Esq. The Howard Center is represented by Richard J. Windish, Esq. Defendant Recore is represented by Brian P. Monaghan, Esq. Defendant Mosher is represented by Andrew C. Boxer, Esq., and Oliver A. Abbott, Esq.

I. Pertinent Procedural Background.

On June 9, 2022, Plaintiff filed the original Complaint in this action. (Doc. 1.) On June 6, 2023, the court issued an Opinion and Order granting in part and denying in part Defendants' motions to dismiss and granting in part Plaintiffs request for leave to amend (the “Opinion and Order”). (Doc. 65.) In its Opinion and Order, the court granted the Howard Center's motion to dismiss Plaintiffs claims against it. Plaintiff filed an AC on July 6, 2023. (Doc. 74.)

On July 20, 2023, the Howard Center filed the instant motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Doc. 86.) Plaintiff responded on August 18, 2023, (Doc. 95), and the Howard Center replied on August 31, 2023. (Doc. 97.) On December 26, 2023, the court held oral argument, at which time it took the pending motion under advisement.

II. Allegations in the Amended Complaint.

Plaintiff resides in Vermont and asserts claims arising out of his arrest and detention. At the time of the alleged events, Defendants Recore and Gagne were SVPD officers, and Defendant Stell was the SVPD Police Chief. Defendant Mosher is a Correctional Facility Shift Supervisor at NSCF in Swanton, Vermont.

The Howard Center is a non-profit corporation registered in Vermont with its principal place of business in Burlington, Vermont. The Doe Defendants are “natural persons who have been involved in the wrongful actions alleged in th[e] [AC], including unknown Howard Center and Vermont Department of Corrections (‘[V]DOC') agents.” (Doc. 74 at 3, ¶ 14.) Plaintiff alleges that some of the Doe Defendants are employed by the Howard Center.

A. Defendants Recore and Gagne Take Plaintiff into Custody.

On April 1, 2020, Plaintiff had ankle surgery for a “serious injury.” Id. at 4, ¶ 19. “While recovering,” Plaintiff played cards, ate snacks, and drank alcohol with his girlfriend and a friend at his girlfriend's friend's house in Swanton, Vermont. Id. ¶ 20. During the game, Plaintiff became upset by the pain caused by his surgical wound and “general stressf]” and began yelling, prompting his girlfriend to call the SVPD at approximately 9:35 p.m. Id. ¶ 21.

Plaintiff called his roommate to ask for a ride home before his girlfriend called the police. He alleges that despite being under the influence of alcohol and wearing a knee-high cast boot on one leg, he was able to talk and walk. Plaintiff left the house and began walking to a gas station across the street to wait for his roommate to pick him up. He contends that he was “responsibly awaiting his ride[]” and was neither armed nor belligerent. Id. at 5, ¶ 23.

At approximately 9:52 p.m., Plaintiff was pursued on foot and then stopped by Defendant Gagne, with whom he went to high school. Defendant Gagne made statements such as, “We can't let you walk[,]” “We're going to make sure you're safe[,]” and “I'm just trying to get you home here.” Id. ¶ 26 (internal quotation marks omitted). Plaintiff alleges that Defendant Gagne made these statements in bad faith because he knew Plaintiff s home address, knew that he had a friend coming to give him a ride home, and had no probable cause to believe that Plaintiff was committing any crime or posing a danger to anyone else. Audio and video evidence allegedly “shows that they did not perceive any serious risk and knew [Plaintiff] was harmless.” (Doc. 74 at 5, ¶ 27.)

Plaintiff was handcuffed and claims that the officers were aware that he was limping and “had a noticeable surgical boot on[]” before Defendant Gagne “coordinated [Defendant] Recore tackling” Plaintiff to the ground. Id. at 6, ¶ 30.

Plaintiff alleges that the officers were aware that he had a surgical wound but nevertheless placed him into the back seat of a police cruiser that could not accommodate his knee-high cast boot. Plaintiffs roommate arrived at the gas station during Plaintiffs interaction with Defendants Recore and Gagne and saw Plaintiff in the police cruiser as it drove away.

Defendant Gagne's official report of the incident states:

I arrived on scene and observed a male who I know from previous [] professional encounters as [Plaintiff]. After briefly speaking with [him] I observed indicators of intoxication. [Plaintiff] then walked away from me and I followed him. . . . [Defendant] Recore and I grabbed [Plaintiff] to take him into protective custody. [Plaintiff] briefly resisted and was taken into custody. [He] was transported to Detox where he was denied and ultimately brought to [NSCF], Nothing Further.

Id. ¶ 31 (fifth alteration in original).

Defendant Gagne's police report indicates that Plaintiff was “intoxicated[]” under Vermont law so Defendant Gagne could only allegedly “assistf]” Plaintiff with his “consent.” Id. at 6-7, ¶¶ 36, 38 (internal quotation marks omitted) (citing 18 V.S.A. § 4810(a)). Plaintiff asserts that because he was not “incapacitated” under 18 V.S.A. § 4802, he was not subject to law enforcement intervention pursuant to 18 V.S.A. § 4810, which allows officers to take incapacitated individuals into protective custody. Id. at 7-8, ¶¶ 40-42 (internal quotation marks omitted). He contends that Vermont law would only allow law enforcement to take him to a correctional facility if a qualified evaluator determined that he was “indeed incapacitated.” Id. at 8, ¶¶ 42-43 (internal quotation marks omitted).

B. The Howard Center.

Rather than allow him to go home, at approximately 10:30 p.m., Plaintiff alleges Defendants Recore and Gagne drove him to the Howard Center's substance abuse treatment and recovery facility in St. Albans, Vermont, known as the “Public Inebriate Center.” (Doc. 74 at 6, ¶ 34) (internal quotation marks omitted). Howard Center staff allegedly did not screen Plaintiff, engage with him, offer him a blood alcohol content (“BAC”) or breathalyzer test, nor provide him with any “alcohol-incapacitated” (“incap”) services. Id. at 9, ¶ 46 (internal quotation marks omitted). Instead, the Howard Center staff interacted with only one police officer whose body camera was off. Video surveillance footage allegedly shows “that no one at the Howard Center paid any attention to [Plaintiff] - he was ‘refused,' with no inquiry.” Id. at 12, ¶ 66.

According to the AC, Defendant Recore testified, “I don't recollect anybody actually assessing [Plaintiff] as far as like the Howard Center staff goes[,]” Id. ¶ 65 (internal quotation marks omitted), although he understood that the Howard Center's job was to “sit, assess and make sure that the person becomes sober before leaving.” Id. ¶ 64 (internal quotation marks omitted). He further testified that “out of the approximately [twenty] individuals brought to the Howard Center by [him] alone, ... he only brought one individual inside the Howard Center.” Id. at 13, ¶ 71.

The Howard Center's report of the incident indicates that Plaintiff was under the influence of alcohol but was “discharged[]” instead of being “referred to treatment[.]” (Doc. 74 at 12, ¶ 67) (alteration adopted) (internal quotation marks omitted). Plaintiff alleges that the report falsely states “that there was an evidence-based determination of [Plaintiffs] ‘incapacitation[]'” and that he was not admitted because of “Violence Concerns, Uncooperative Refused[,]” when in fact the Howard...