Jeffrey Rivard v. Windham State Attorney

VERMONT SUPREME COURT Case No. 25-AP-305
109 State Street
Montpelier VT 05609-0801
802-828-4774
www.vermontjudiciary.org

Note: In the case title, an asterisk (*) indicates an appellant and a double asterisk (**) indicates a cross-
appellant. Decisions of a three-justice panel are not to be considered as precedent before any tribunal.

ENTRY ORDER

DECEMBER TERM, 2025

Jeffrey Rivard* v. Windham State Attorney et al. } APPEALED FROM:
} Superior Court, Windham Unit,
} Civil Division
} CASE NO. 25-CV-02411
Trial Judge: Rachel M. Malone

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

Plaintiff appeals the dismissal of his civil complaint against defendants. We affirm.

In June 2025, plaintiff filed a complaint in the civil division against the State, the
Department of State’s Attorneys and Sheriffs, the Windham County State’s Attorney’s Office,
and Deputy State’s Attorney Johns Congdon, alleging that defendants abused legal process and
maliciously prosecuted him by charging him with violating a no-trespass order issued by his
child’s school. Specifically, plaintiff alleged that Attorney Congdon charged him with criminal
trespass despite being “aware of facts which do not constitute a crime,” argued for conditions of
release that were overly restrictive and unrelated to the charge, and withheld exculpatory
evidence. He asserted that defendants prosecuted him to cover up misconduct by school officials
and police.

Defendants moved to dismiss, arguing that they were immune from plaintiff’s claims and
plaintiff failed to state a claim upon which relief could be granted. In his opposition to
defendants’ motion, plaintiff stated that he did not object to the court taking judicial notice of the
filings in the criminal matters, and agreed to dismiss the State and the Department of State’s
Attorneys and Sheriffs as defendants. He also moved for a preliminary injunction prohibiting the
State’s Attorney from using certain criminal records against him in the criminal case.

The trial court held that plaintiff failed to state a claim for abuse of legal process because
he did not allege any actions by defendants that constituted an improper use of legal process.
Likewise, it concluded that plaintiff failed to state a claim for malicious prosecution because the
court found probable cause for the criminal charges and the proceedings had not yet terminated.
Finally, it held that defendants were entitled to prosecutorial immunity from these claims. It
therefore granted defendants’ motion to dismiss the action.

Plaintiff subsequently moved to “vacate dismissal for lack of personal jurisdiction,”
arguing that he had named Attorney Congdon as a defendant but that the sheriff had never served
Congdon. The trial court denied the motion because plaintiff’s complaint failed to state a claim
against Congdon in his individual capacity. This appeal followed.

Before considering plaintiff’s arguments on appeal, we address an important threshold
issue. In his brief, plaintiff cited several purported decisions of this Court, including “Slayton v.
Willing, 2010 VT 56, ¶ 14, 188 Vt. 216, 4 A.3d 1155,” “Sorrell v. Wigginton, 154 Vt. 301, 303
(1990),” “Morrison v. City of Montpelier, 2011 VT 9, ¶ 10,” “Thrall v. Rowan, 161 Vt. 451, 456
(1994),” and “EcoScience Corp. v. United States, 156 Vt. 185, 193 (1991),” among others. The
Vermont Reports citations provided by plaintiff correspond to entirely different opinions than
those named. We were unable to identify any existing case that corresponds to the citations
provided in plaintiff’s brief.

We remind plaintiff that by presenting a document to this Court, he is certifying that:

to the best of [his] knowledge, information, and belief, formed
after an inquiry reasonable under the circumstances: . . . (2) the
claims, defenses, and other legal contentions therein are warranted
by existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of
new law.

V.R.C.P. 11(b)(2); see V.R.A.P. 25(d)(2) (“By presenting a document to the Court—whether by
signing, filing, submitting, or later advocating it—an attorney or self-represented party is making
the certification provided by V.R.C.P. 11(b) as to that paper.”). Self-represented litigants
“receive some leeway from the courts” but are nonetheless bound by the ordinary rules of
procedure, “includ[ing] the obligations of Rule 11 and sanctions for noncompliance.” Zorn v.
Smith, 2011 VT 10, ¶ 22, 189 Vt. 219. Plaintiff is warned that future conduct of this nature may
result in sanctions. See V.R.A.P. 25(d)(3) (“If after notice and a reasonable opportunity to
respond, the Court determines that V.R.C.P. 11(b) has been violated, the Court may, subject to
V.R.C.P. 11(c), impose an appropriate sanction on those violating the rule or responsible for the
violation.”).

We turn to plaintiff’s arguments concerning the dismissal of his complaint. We review a
decision granting a motion to dismiss de novo, using the same standard as the trial court.
Birchwood Land Co. v. Krizan, 2015 VT 37, ¶ 6, 198 Vt. 420. We “will uphold a motion to
dismiss for failure to state a claim only if it is beyond doubt that there exist no facts or
circumstances that would entitle the plaintiff to relief.” Id. (quotation omitted).

Plaintiff contends that the trial court erred in concluding that he failed to state a claim for
abuse of process because he alleged in his complaint that Attorney Congdon obtained a no-
stalking condition based on a false representation that the victims had requested it. He further
argues that the court erred in dismissing his malicious-prosecution claim because his criminal-
trespass charge lacked probable cause.

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The trial court properly dismissed these claims because the facts as alleged show that
defendants were immune from suit. “[P]rosecutors 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 [their] general authority . . . .” Muzzy v. State, 155 Vt. 279, 279 (1990).
Here, the acts alleged by plaintiff are the filing and prosecution of criminal charges against him.
The duties of a state’s attorney include “prosecut[ing] for offenses committed within [the state’s
attorney’s] county, and all matters and causes cognizable by the Supreme and Superior Courts on
behalf of the State, [and] fil[ing] informations and prepar[ing] bills of indictment.” 24 V.S.A.
§ 361(a). Thus, it is undisputed that the acts alleged by plaintiff were within defendants’ general
authority. See Levinsky v. Diamond, 151 Vt. 178, 186-87 (1989) (holding that prosecutor’s acts
of filing charges against defendant and allegedly directing witnesses to make false statements at
bail hearing were within scope of authority and shielded from civil liability by absolute
immunity), overruled in part on other grounds by Muzzy, 155 Vt. at 280. Defendants are
therefore absolutely immune from plaintiff’s claims, even if their acts were allegedly motivated
by improper purposes. O’Connor v. Donovan, 2012 VT 27, ¶ 27, 191 Vt. 412 (“That defendant
was allegedly motivated by ill will or a malicious design to interfere with plaintiff’s livelihood
does not diminish the absolute immunity afforded conduct otherwise within the general scope of
defendant’s authority.”); see also Imbler v. Pachtman, 424 U.S. 409, 427 (1976) (acknowledging
that granting prosecutors absolute immunity under 42 U.S.C. § 1983 “does leave the genuinely
wronged defendant without civil redress against a prosecutor whose malicious or dishonest
action deprives him of liberty,” but concluding that lesser immunity “would disserve the broader
public interest”).

Plaintiff claims that the civil division was required to allow discovery before deciding
whether defendants were entitled to immunity from his claims. The decision plaintiff cites in
support of this proposition does not appear to exist, and our review of case law indicates the
contrary: “discovery is not generally allowed until the immunity question is resolved.” Billado
v. Appel, 165 Vt. 482, 498 (1996).

To the extent plaintiff argues that the court should have authorized discovery into this
issue under Vermont Rule of Civil Procedure 56(d), he has not shown that he requested such
relief from the civil division. Although plaintiff asserts that in his reply brief that he requested
the trial court allow discovery under Rule 56(d) “to show investigatory misdeeds and ultra vires
acts,” the record belies this assertion. We have reviewed plaintiff’s filings and the only
references to discovery are defendants’ alleged discovery violations in the criminal proceeding
and in plaintiff’s motion to vacate dismissal, where he referred to a case where discovery of
sheriff’s records was permitted. Plaintiff identifies no place in the record where he sought
discovery on the issue of immunity. The issue was therefore not preserved for our review. See
Bull v. Pinkham Eng’g Assocs., 170 Vt. 450, 459 (2000) (“Contentions not raised or fairly
presented to the trial court are not preserved for appeal.”); see also V.R.A.P. 28(a)(4) (stating
that arguments in appellant’s brief “must contain . . . the issues presented, how they were
preserved, and appellant’s contentions and the reasons for them—with citations to the
authorities, statutes, and parts of the record on which the appellant relies”). Nor does plaintiff
explain how Rule 56(d), which applies to motions for summary judgment, would have provided
relief to plaintiff here.

Because the trial court properly dismissed plaintiff’s complaint, it did not err in denying
plaintiff’s motion for a preliminary injunction. To the extent plaintiff argues that the sheriff’s

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alleged failure to serve defendant Congdon mandates reversal, he has not adequately briefed that
argument. See In re Snyder Grp., Inc., 2020 VT 15, ¶ 26 n.10, 212 Vt. 168 (declining to address
inadequately briefed argument).

Affirmed.

BY THE COURT:

Paul L. Reiber, Chief Justice

William D. Cohen, Associate Justice

Nancy J. Waples, Associate Justice

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