Pigeon v. State

7ermont Superior Court

Filed 12/05/24

Chittenden UUnit

VERMONT SUPERIOR COURT CIVIL DIVISION

Chittenden Unit Case No. 23-CV-05407

175 Main Street

Burlington VT 05401

802-863-3467

www.vermontjudiciary.org

Allen Pigeon v. The State of Vermont, et al

DECISION ON STATE'S MOTION TO DISMISS

This malicious prosecution and civil rights action arises from Plaintiff Allen Pigeon's April

2020 arrest and subsequent criminal prosecution in Franklin County, for which he alleges that no

reasonable belief in probable cause existed at the time. Mr. Pigeon brings various claims against

certain state officials and employees, including state troopers, prosecutors, and the former state

attorney general, as well as one private citizen. He also alleges that the State of Vermont is vicariously

liable for the actions of its employees and officials. The State Defendants move to dismiss pursuant to

V.R.C.P. 12(b)(6).

Alleged Facts

At 24 pages and 271 paragraphs, Mr. Pigeon's Complaint overshoots the "short and plain

statement of the claim" targeted by V.R.C.P. 8. The answer to a long and complicated complaint,

however, is not necessarily a long and complicated decision. Instead, the court provides only a brief

summary of the core allegations below, with additional facts discussed later as necessary. These facts

are alleged in the Complaint or appear in the Information and Affidavit of Probable Cause from the

underlying criminal case, which are incorporated into the Complaint by reference. See Kaplan v.

Morgan Stanley & Co., 2009 VT 78, § 10 n. 4, 186 Vt. 605 (mem.). The court makes no determination

as to their accuracy at this stage of the proceeding. See Montague v. Hundred Acre Homestead, LLC,

2019 VT 16, J 10, 209 Vt. 514 ("On a motion to dismiss, the court must assume that the facts pleaded

in the complaint are true and make all reasonable inferences in the plaintiff's favor.").

On April 19, 2020, state troopers arrested and detained Mr. Pigeon after interviewing him at the

St. Albans barracks. Following the interview, Sgt. Clark Lombardi prepared and signed an Affidavit of

Probable Cause. Briefly, the affidavit alleged that Mr. Pigeon's son, Zachary Pigeon (a St. Albans

Decision on State's Motion to Dismiss Page 1 of 10

23-CV-05407 Allen Pigeon v. The State of Vermont, et al

police officer at the time) had molested Mr. Pigeon’s stepdaughter, McKenna Stone, as a child, and

that Mr. Pigeon and Zachary had invaded McKenna’s home and assaulted her two weekends prior,

after McKenna’s sister had told another police officer about the alleged molestation. Based on the

affidavit, Franklin County Deputy State’s Attorney Diane Wheeler charged Mr. Pigeon with Simple

Assault (13 V.S.A. § 1023(a)(1)), Felony Obstruction of Justice (13 V.S.A. § 3015), Burglary (13

V.S.A. § 1201(c)(1)), Kidnapping—Bodily Injury or Fear (13 V.S.A. § 2405(a)(1)(C)), and Unlawful

Restraint, Second Degree (13 V.S.A. § 2406(a)(3)). Mr. Pigeon was arraigned on April 20, 2020, and

released on conditions. News of Mr. Pigeon’s arrest was reported in the media.

In June 2020, the Vermont Attorney General’s office took over the case, and investigated the

charges further over the next several months. In December 2020, the State dismissed all charges

against Mr. Pigeon without prejudice. The Attorney General issued a press release: “The State

provided notice that it cannot meet the elements of the charged crimes beyond a reasonable doubt at

this time.” On November 14, 2022, the court expunged the charges and sealed the case. Zachary

Pigeon was also eventually fully exonerated for the same alleged crimes.

The Parties

Mr. Pigeon has sued the following defendants:

 The State of Vermont

State Police

 John Bruzzi

 Ashley Farmer

 Clark Lombardi

 Michael Mattuchio

 Daniel R. Burrows

 Drew Cota

 Darren P. Annis

 Matthew Hill

Prosecutors

 Diane C. Wheeler, Esq. (Franklin County Depute State’s Attorney)

 Linda A. Purdy, Esq. (Assistant Attorney General)

 Ultan J. Doyle, Esq. (Assistant Attorney General)

 Thomas J. Donovan, Jr., Esq. (former Vermont Attorney General)

Private Citizen

 Hazen Stone (McKenna Stone’s father)

Decision on State’s Motion to Dismiss Page 2 of 10

23-CV-05407 Allen Pigeon v. The State of Vermont, et al

The Claims

Mr. Pigeon brings the following claims:

 Count 1: Malicious Prosecution (all individual defendants)

 Count 2: Assault & Battery (Diane Wheeler, all individual state police defendants, and Hazen

Stone)

 Count 3: False Arrest (Diane Wheeler, all individual state police defendants, and Hazen Stone)

 Count 4: False Imprisonment (all individual defendants)

 Count 5: Defamation (all individual defendants)

 Count 6: Intentional Infliction of Emotional Distress (all individual defendants)

 Count 7: Respondeat Superior (State of Vermont)

 Count 8: Civil Conspiracy (Diane Wheeler, all individual state police defendants, and Hazen

Stone)

 Count 9: Civil Rights Violations under 42 U.S.C. § 1983 (all individual defendants)

 Count 10: Failure to Intervene under 42 U.S.C. § 1983 (all individual state police defendants)

Discussion

All State Defendants move to dismiss pursuant to Rule 12(b)(6).1 The State contends that all of

its named employees are protected by sovereign, official, prosecutorial, or qualified immunity, and that

the existence of probable cause is a complete defense to many of the claims. Additionally, it contends

that Mr. Pigeon’s claims for civil conspiracy, intentional infliction of emotional distress, and

defamation are otherwise without merit.

Probable Cause

The State contends that the Complaint’s allegations demonstrate that probable cause existed at

the time of the arrest, and that this provides a complete defense. The absence of probable cause is an

element of a malicious prosecution claim. “[T]o recover for malicious prosecution, plaintiff must prove

that defendant initiated or continued the case without probable cause, that defendant acted with malice,

and that the earlier case terminated in plaintiff’s favor.” Bacon v. Reimer & Braunstein, LLP, 2007 VT

57, ¶ 4, 182 Vt. 553 (citing Anello v. Vinci, 142 Vt. 583, 586–87 (1983)). Additionally, virtually all of

Mr. Pigeon’s other claims are also premised—directly or indirectly—on an alleged lack of probable

cause. See Compl. ¶¶ 236, 239, 242, 246, 255, 263–64, 269.

Importantly, here, Sgt. Lombardi’s affidavit of probable cause was confirmed by the

prosecutor’s filing of an Information in criminal court and the court’s subsequent finding of probable

cause. “The mere fact that a criminal tribunal found probable cause normally provides a presumption

that probable cause existed in the context of a subsequent wrongful prosecution claim.” Lay v.

1 The sole private citizen defendant, Hazen Stone, has answered the Complaint and has not moved to dismiss.

Decision on State’s Motion to Dismiss Page 3 of 10

23-CV-05407 Allen Pigeon v. The State of Vermont, et al

Pettengill, 2011 VT 127, ¶ 22, 191 Vt. 141. This presumption “is rebuttable only if a plaintiff can

demonstrate that the earlier finding of probable cause was based on misleading, fabricated, or

otherwise improper evidence.” Id. A plaintiff, however, cannot “merely plead the insufficiency of the

evidence that was available to the criminal court at the time.” Id. Thus, “[t]here must be a plausible

suggestion that the finding of probable cause would not have been reached were it not for some

irregularity or impropriety.” Id.

Mr. Pigeon’s attempt to rebut the presumption of probable cause fails. The following core facts

formed the basis of the arrest:

 After being stopped for a DUI, McKenna Stone reported to state police that a few weeks prior,

Mr. Pigeon and his son Zachary had entered her home at night, assaulted her, threw her down

some stairs and off her porch, handcuffed her, and burned her back with a cigar. Compl. ¶¶ 41–

46.

 When Ms. Stone was at the state police barracks, Detective Mattuchio observed several small

scars across her back. Aff. of Probable Cause at 2 (Ex. A).

 State Police spoke with two individuals—Joey Vaillancourt and Jeremy West—who reported

they had heard about the incident, and had seen burn marks on Ms. Stone’s back. Aff. at 4–5

(Ex. A).

 Ms. Stone also reported the following to state police: that she was sexually abused by her

stepbrother Zachary Pigeon starting when she was in fourth grade and continuing until she

moved in with her father in eighth grade; that she had told her sister, Hailee Stone, about the

abuse, who then told her boyfriend Jonathan Warner; that Mr. Warner was arrested for

operating a car without a license by Zachary Pigeon in February 2020; that Mr. Warner told St.

Albans police officers at that time that Zachary had sexually assaulted McKenna Stone when

she was younger; that after that incident, she started receiving threatening messages and

voicemails from Mr. Pigeon, who stated that he was going to slit her throat; and that she had

deleted the voicemails. Aff. at 3 (Ex. A).

 State police confirmed that, according to a St. Albans police report, Zachary Pigeon had

arrested Mr. Warner after a traffic stop on February 16, 2020, and transported him back to the

St. Albans police station for processing. Id.

 On April 18, 2020, Det. Mattuchio and Det. Sgt. Lombardi spoke with Hailee Stone, who

reported that she was with Mr. Warner when Zachary Pigeon arrested him in February, and that

she had also advised another police officer on the scene that Zachary had molested her sister.

Aff. at 5 (Ex. A).

 Later that same day, detectives interviewed Mr. Warner, who confirmed his February 2020

arrest by Zachary, and stated that while he was at the police station, he told Zachary that he had

“heard a lot of things about him.” Id.

Decision on State’s Motion to Dismiss Page 4 of 10

23-CV-05407 Allen Pigeon v. The State of Vermont, et al

 Also on April 18, state police interviewed Ms. Stone a second time, and had her draw a

diagram of her residence and explain how the incident with Zachary and Allen Pigeon

happened. Ms. Stone told the troopers that she had told her father “yesterday” “about the issues

with Zachary and Allen.” Aff. at 4.

 The same day, state police went to Ms. Stone’s residence to gather evidence and photograph

the scene. Troopers searched the firepit and found a black cigar tip that was photographed and

obtained as evidence. This was consistent with Ms. Stone’s earlier statement that she had

located the cigar tip (that she believed was the one used to burn her) near her front steps, and

threw it in her fire pit. Aff. at 5 (Ex. A).

 On April 19, state police interviewed Zachary Pigeon, who: confirmed that he had arrested

Jonathan Warner about a month prior and that Hailee Stone was in the car at the time; denied

ever having a sexual relationship with McKenna Stone; recanted his denial and admitted to

having consensual sex with McKenna in 2018; denied smoking; stated that he and his father

(Allen Pigeon) are very close; reported that he did not work the weekend of the alleged

incident; stated that he stayed at home with his girlfriend the entire weekend of April 3rd, 4th,

and 5th and “did not leave to go anywhere”; stated that at some point he and his father drove

around Swanton looking at house at 10am but was unsure of the exact date; and denied that he

ever went to McKenna’s residence or threatened her. Aff. at 5–7 (Ex. A).

 On April 19, state police spoke with Allen Pigeon at the barracks. Mr. Pigeon said that he had

not had contact with McKenna Stone in over a year and dislikes her, that he does not smoke,

and that on Sunday April 5 at midmorning he picked up a gun safe at Tractor Supply and later

went house hunting with Zachary. Aff. at 7–8 (Ex. A).

Unquestionably, probable cause existed at the time of the arrest based on these recitals. In summary,

McKenna Stone reported the alleged assault and a potential motivation to suppress allegations of

sexual abuse of McKenna by Zachary Pigeon; she described cigar burns as part of the assault, and

detectives observed scars on her back; witnesses stated that they had also heard about the alleged

incident and seen burn marks on McKenna’s back; McKenna diagrammed her residence and explained

where the cigar tip might be located; detectives located the cigar tip in the location indicated; Zachary

Pigeon denied ever having a sexual relationship with McKenna before recanting that denial; and

Zachary also stated that he was off-duty the weekend of the alleged incident. These facts demonstrate a

reported crime, a complaining witness who made consistent statements to others, and the suspects’

motivation and opportunity to commit the crime.

Mr. Pigeon contends, however, that probable cause was lacking because McKenna Stone was

an unreliable witness and because Sgt. Lombardi’s affidavit omitted or overlooked exculpatory

evidence and other key facts. Pl.’s Opp’n at 7–26. This contention is meritless. Mr. Pigeon points to

the facts that McKenna lied at the initial DUI stop about not drinking, was an “admitted alcoholic”

who drank every night, had ADHD, drove drunk with an unsecured, loaded gun within arm’s reach,

Decision on State’s Motion to Dismiss Page 5 of 10

23-CV-05407 Allen Pigeon v. The State of Vermont, et al

and was involved with a passionate family dispute with Allen Pigeon, who was foster parenting her

daughter. Most of these facts have nothing to do with propensity to tell the truth. While lying about

drinking at the DUI stop and the family dispute with Allen Pigeon certainly present reasons to exercise

caution with respect to McKenna’s claims about Allen and Zachary Pigeon—and would have provided

fodder for cross-examination at trial—they do not negate the finding of probable cause. The police

investigated these claims by interviewing multiple witnesses and viewing the alleged crime scene prior

to arresting Allen.

Mr. Pigeon argues essentially that all witness statements are unreliable because they ultimately

trace back to McKenna’s. Those witness statements, however, demonstrate that McKenna made

consistent statements about the alleged incident to others before reporting it to the police.

Mr. Pigeon further provides a list of facts that were omitted from the Affidavit of Probable

Cause. These omissions, he contends, affect the affidavit’s “integrity” and demonstrate “a lack of

candor with the criminal court.” Pl.’s Opp’n at 16–18. Bluntly, none of these facts come close to

negating probable cause.

Mr. Pigeon also spills a great deal of ink detailing a number of so-called “irregularities”

involved with the reporting of McKenna’s DUI car crash, which he appears to cast as a grand

conspiracy. Pl.’s Opp’n at 18–25. He takes issue with the fact that McKenna’s father, Hazen Stone,

called Sgt. Bruzzi on Bruzzi’s personal cell phone to report McKenna’s claims against Allen and

Zachary Pigeon, and that Hazen Stone might also have been the first to report McKenna’s DUI crash to

authorities through an undisclosed call. Mr. Pigeon also complains that Trooper Farmer was

“disingenuous” in not making clear that she knew that McKenna was the driver of the DUI crash

before arriving on scene. It is not clear why it matters that these facts were omitted from the affidavit

of probable cause, or how they would even remotely affect the finding of probable cause. There is

certainly no requirement that such affidavits include every minute detail to pass muster. Mr. Pigeon’s

non-conclusory allegations fail to demonstrate that the finding of probable cause was based on any

“misleading, fabricated, or otherwise improper evidence.” Lay, 2011 VT 127, ¶ 22. Instead, his

allegations “merely plead the insufficiency of the evidence that was available to the criminal court at

the time”—which is exactly what our Supreme Court has said is not sufficient to rebut the presumption

of probable cause. Id. Thus, there is no “plausible suggestion that the finding of probable cause would

not have been reached were it not for some irregularity or impropriety.” Id.

Mr. Pigeon further asserts that, even if probable cause existed at the time of his arrest, it ceased

to exist at some point during the ensuing eight months as the continuing investigation turned up

Decision on State’s Motion to Dismiss Page 6 of 10

23-CV-05407 Allen Pigeon v. The State of Vermont, et al

evidence in his favor. See generally 52 Am. Jur. 2d Malicious Prosecution § 52 (“Probable cause to

pursue a claim can be lost during the course of an action, and thereafter, liability for malicious

prosecution may arise, even though the proceeding was commenced with probable cause, if the action

is prosecuted after it later appears there is no probable cause.”) (footnote omitted); Dobbs’ Law of

Torts § 588 (2d ed.) (“When liability is based upon continuance rather than initiation of the

prosecution, probable cause must be judged on appearances at the time the accuser acts to continue the

prosecution, as where he refuses to withdraw his complaint even after he has learned of the accused’s

innocence.”). Thus, he argues, the prosecutors should have dropped the charges long before they

eventually did so in December 2020. This assertion, too, is meritless.

On June 8, 2020, the Attorney General’s office took over the case from the Franklin County

State’s Attorney’s office, and Attorneys Donovan, Purdy, and Doyle directed the state police to

conduct further investigation into the basis of the charges against Mr. Pigeon. This included obtaining

search warrants to retrieve all the data in both Pigeons’ cell phones and social media accounts, and

DNA testing of the handcuffs seized from Zachary’s residence. On July 15, 2020, the prosecutors

learned of negative DNA results for the handcuffs. Depositions began in October 2020. On October

22nd, law enforcement obtained a forensic examination of Mr. Pigeon’s cellphone data. This

examination revealed that Mr. Pigeon never left McKenna threatening voicemails, that his cellphone

last communicated with McKenna’s in April 2019, and contained no evidence that his phone was near

McKenna’s home the night of April 4–5, 2020. In November 2020, the prosecutors ordered a forensic

examination of McKenna’s cellphone, which revealed that she lied about the timing that she went to

sleep on the night of the alleged incident and never mentioned the incident that night or the next day to

her boyfriend, even though they had texted all day on April 5th. At her deposition on December 14th,

McKenna was hostile, refused to answer many questions, and contradicted her prior sworn statements.

After two hours of questioning, she stormed out and refused to complete the deposition.

There is no indication that probable cause ceased to exist at some point during the timeline

described above. It is true that, as the prosecutors continued their investigation and discovery in

preparation for trial, certain investigative results were returned in Mr. Pigeon’s favor. This did not

defeat probable cause because they still had the complaining witness’s testimony, though some of the

investigative results could certainly affect the weight of that testimony. The prosecutors continued their

due diligence until, after McKenna’s deposition, they determined that they could not prove their case

beyond a reasonable doubt; they then dropped the charges. This does not negate probable cause; rather,

it appears to be an example of the criminal justice system working as it should. See Coombs v. Hot

Decision on State’s Motion to Dismiss Page 7 of 10

23-CV-05407 Allen Pigeon v. The State of Vermont, et al

Springs Vill. Prop. Owners Ass’n, 254 S.W.3d 5, 11 (Ark. Ct. App. 2007) (“We find nothing in this

record constituting substantial evidence that the original probable cause was later undermined by the

developing facts but the prosecution continued nonetheless.”).

Immunity

In any event, the prosecutors are entitled to immunity for their decision to continue with the

charges until December 2020. “Judicial officers, including prosecutors, have absolute immunity from

civil suits to the extent that the actions complained of are associated with the judicial phase of the

criminal process and are within the general authority of the officer.” Muzzy v. State By & Through

Rutland Cnty. State’s Att’y, 155 Vt. 279, 279 (1990). This protection “encompasses any act closely

associated with litigation or potential litigation, but does not cover administrative . . . or investigative

functions that are not a part of the judicial function.” Id. (citations omitted). Thus, absolute immunity

extends “to prosecutorial activities that concern, among other things, the decision whether to

prosecute.” Id. This immunity extends to Mr. Pigeon’s federal claims: “the same absolute immunity

[applies] under 42 U.S.C. § 1983 that the prosecutor enjoys at common law.” Imbler v. Pachtman, 424

U.S. 409, 427 (1976).

Mr. Pigeon’s core claim here is that the prosecutors should have dropped the charges against

him earlier than they did based on the information discovered in the Attorney General’s Office’s

follow-on investigation detailed above. The decision to continue or discontinue a prosecution is a core

prosecutorial function, committed to a prosecutor’s sole discretion. Because the acts complained of

plainly fall within the scope of this function, the prosecutors here are protected by absolute immunity.

See 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”).

Mr. Pigeon contends that the challenged actions are “investigative or administrative functions

not covered” by absolute immunity. Pl.’s Opp’n at 29. Not so. While the prosecutors directed the

police to investigate further the basis for the charges against Mr. Pigeon, these actions obviously did

not “occur prior to the initiation of a prosecution.” Burns v. Reed, 500 U.S. 478, 496 (1991). Moreover,

these acts were not a “random ‘fishing expedition,’ ” but rather “involved [] activit[ies] legally

sanctioned as part of the investigative process, a process necessary to the effective operation of the

prosecutors’ office.” Levinsky v. Diamond, 151 Vt. 178, 194 & n.7 (1989). Indeed, “a prosecutor . . .

must be afforded reasonable means to reach the decision to prosecute without fear of legal retaliation.”

Id. at 194 n.7; see also Blake v. Rupe, 651 P.2d 1096, 1104 (Wyo. 1982) (quoting Forsyth v.

Decision on State’s Motion to Dismiss Page 8 of 10

23-CV-05407 Allen Pigeon v. The State of Vermont, et al

Kleindienst, 599 F.2d 1203, 1215 (3d Cir. 1979) (“ ‘To grant a prosecuting attorney absolute immunity

over his decision to initiate a prosecution while subjecting him to liability for securing the information

necessary to make that decision would only foster uninformed decisionmaking and the potential for

needless actions.’ ”).2

Remaining Claims

Because the existence of probable cause and the prosecutors’ official immunity is apparent on

the face of the complaint, and because virtually all of Mr. Pigeon’s claims are premised an alleged lack

of probable cause and the prosecutors’ decision to continue the prosecution, the State Defendants are

entitled to dismissal of all claims. To the extent it is necessary to address certain claims individually,

however, they are disposed of easily.

As to the assault and battery claims, the Complaint itself recognizes that lack of probable cause,

in the context of the various individual Defendants’ actions, is an essential element. Compl. ¶ 236

(“These actions were taken intentionally and without the reasonable belief that there was probable

cause.”). The discussion above therefore defeats that claim. Moreover, there is no indication in the

Complaint that the arrest of Mr. Pigeon involved excessive force or was otherwise unprivileged. See

generally Simonelli v. Mt. Snow, Ltd, No. 080111, 2013 WL 9348806, at *3 (Vt. Super. Ct. Mar. 07,

2013) (Carroll, J.); Mayo v. Winn, No. S0952-05 CnC, 2009 WL 8103582 (Vt. Super. Ct. May 14,

2009) (Pearson, J.).

As to the false arrest and imprisonment claims, once there has been a valid legal process—here,

a prosecution commenced on probable cause—there can be no false arrest or imprisonment claim. See

Dobbs’ Law of Torts § 44 & n.2 (2d ed.):

When the confinement takes place as a result of legal process such as a

warrant for arrest, the plaintiff will seldom have an actionable claim for

false imprisonment, since the legal process ordinarily furnishes a

privilege or defense. If the legal proceeding against the plaintiff was

itself brought without probable cause and for bad motives, the plaintiff

may have a claim for malicious prosecution rather than false

imprisonment.

...

Once a formal charge has been made and the plaintiff is confined by

judicial order after arraignment, the false imprisonment is terminated and

the claim for any remaining damages must ordinarily be one for

malicious prosecution.

2 To the extent the Attorney General’s press release does not fall within the scope of absolute immunity, it clearly meets the

standard for qualified immunity. See O’Connor v. Donovan, 2012 VT 27, ¶ 12, 191 Vt. 412.

Decision on State’s Motion to Dismiss Page 9 of 10

23-CV-05407 Allen Pigeon v. The State of Vermont, et al

As to the IIED claim, none of the alleged facts amount to “outrageous conduct” as

contemplated by Vermont case law and the Restatement. See Davis v. Am. Legion, Dep’t of Vermont,

2014 VT 134, ¶¶ 19–20, 198 Vt. 204; Restatement (Second) of Torts § 46 cmt. d (1965). As to

defamation, Mr. Pigeon has failed to plead both: (1) a “false and defamatory statement,” given the

existence of probable cause; and (2) a “lack of privilege,” given that the State Defendants (prosecutors

and state troopers) made the alleged statements as part of their official duties. See Skaskiw v. Vermont

Agency of Agric., 2014 VT 133, ¶¶ 8–12, 198 Vt. 187.

As for the civil conspiracy claim, the analysis above makes clear that there is no actionable

underlying tort, see Davis v. Vile, No. 2002-465, 2003 WL 25746021, at *3 (Vt. Mar. 2003) (unpub.

mem.) (“[a]ssuming that there continues to be an independent cause of action for the tort of civil

conspiracy,” and citing cases from other states holding that civil conspiracy is not actionable in and of

itself); Dobbs, The Law of Torts § 435 (discussing conspiracy under a treatise section titled “other

bases for vicarious liability”), and even assuming that conspiracy were an independent tort, Mr. Pigeon

has not pled an “illegal purpose” or “illegal means.” Catamount Radiology, P.C. v. Bailey, No. 1:14-

CV-213, 2015 WL 5089104, at *3 (D. Vt. Aug. 27, 2015) (quoting Boutwell v. Marr, 71 Vt. 1, 42 A.

607, 609 (1899)). The respondeat superior “claim” against the State similarly fails because Mr. Pigeon

has pled no actionable underlying tort, and also because the State is protected by sovereign immunity

here under the discretionary function exception to the Tort Claims Act. See Ingerson v. Pallito, 2019

VT 40, ¶¶ 11, 210 Vt. 341 (“the discretionary function exception often applies in the context of state

investigations”); Earle v. State, 2006 VT 92, ¶¶ 22–23, 180 Vt. 284; Searles v. Agency of Transp., 171

Vt. 562, 563–64 (2000); see also Nieves Martinez v. United States, 997 F.3d 867, 881 (9th Cir. 2021)

(“Because [t]he investigation of crime involves policy judgments at the core of the executive branch[,]

the nature of the agents’ conduct at issue here clearly involves the type of policy judgment protected

by the discretionary function exception.”) (quotations omitted).

Order

The court grants the State Defendants’ motion to dismiss. The remaining parties—Allen Pigeon

and Hazen Stone—shall submit a proposed discovery schedule within 21 days.

Electronically signed pursuant to V.R.E.F. 9(d): 12/5/2024 8:52 AM

___________________________

Samuel Hoar, Jr.

Superior Court Judge

Decision on State’s Motion to Dismiss Page 10 of 10

23-CV-05407 Allen Pigeon v. The State of Vermont, et al