benware v vitalcore

Termont 	Superior 	Court
Filed_08/04/26
Windham 	Unit
VERMONT 	SUPERIOR 	COURT 	CIVIL 	DIVISION
Windham 	Unit 	Case 	No. 	25-CV-01839
Court 	Street
Newfane 	VT 	05345
802-365-7979
www.vermontjudiciary.org
Dawn 	Benware, 	et 	al 	v. 	VitalCore 	Health 	Strategies, 	LLC, 	et 	al
DECISION 	AND 	ORDER 	ON 	MOTIONS 	TO 	DISMISS 	(¥# 	32, 33,
34, 	and 	35)
This 	is 	a 	personal 	injury 	and 	wrongful 	death 	action 	arising 	from 	Alexander
Kelley's 	death, 	which 	Plaintiff 	Dawn 	Benware 	alleges 	was 	the 	result 	of insufficient
medical 	care 	while 	Kelley 	was 	incarcerated. 	Defendants 	Stacy 	Switzer, 	Thomas
Marleau, 	Samantha 	Bartlett, 	and 	Amergis 	Healthcare 	Staffing, 	Inc. 	(Amergis") 	move 	to
dismiss 	under 	V.R.C.P. 	12(b)(6). 	For 	the 	reasons 	discussed 	below, 	Defendants' 	Switzer,
Marleau, 	and 	Bartlett's 	motions 	to 	dismiss 	are 	denied. 	Amergis's 	motion 	to 	dismiss 	is
denied 	in 	part 	and 	granted 	in 	part 	as 	described 	below.
The Vermont 	Supreme 	Court 	has 	described 	the 	familiar 	standard 	for 	Rule
12(b)(6) 	motions 	to 	dismiss 	for 	failure 	to 	state 	a 	claim 	as 	follows:
"A 	motion 	to 	dismiss 	... 	is 	not 	favored 	and 	rarely 	granted."
This 	is 	especially 	true 	"when 	the 	asserted 	theory 	of liability 	is
novel 	or 	extreme," 	as 	such 	cases 	"should 	be 	explored 	in 	the
light 	of facts 	as 	developed 	by 	the 	evidence, 	and, 	generally,
not 	dismissed 	before 	trial 	because 	of the 	mere 	novelty 	of the
allegations." 	In 	reviewing 	a 	motion 	to 	dismiss, 	we 	consider
whether, 	taking 	all 	of the 	nonmoving 	party's factual
allegations 	as 	true, 	"'it 	appears 	beyond 	doubt' 	that 	there 	exist
no 	facts 	or 	circumstances 	that 	would 	entitle 	the 	plaintiff to
relief." 	We 	treat 	all 	reasonable 	inferences 	from 	the 	complaint
as 	true, 	and 	we 	assume 	that 	the 	movant's 	contravening
assertions 	are 	false.
Alger 	v. 	Dep't 	ofLabor 	& Indus., 	2006 	VT 	115, 	112, 	181 	Vt. 	309 	(citations 	omitted); 	see
also 	5B 	A. 	Benjamin 	Spencer, 	et 	al., 	Fed. 	Prac. 	& Proc. 	Civ. 	§ 	1357 	(4th 	ed.)
("Ultimately, 	the 	burden 	is 	on 	the 	moving 	party 	to 	prove 	that 	no 	legally 	cognizable 	claim
for 	relief 	exists.").
Background
The 	Court 	recounts 	the 	following 	allegations from 	the 	Third 	Amended 	Complaint
strictly 	for 	the purpose 	of 	resolving 	these 	motions 	to 	dismiss. 	Plaintiff 	alleges 	that
1

2
Switzer, Bartlett, and Marleau are nurses under the control and direction of VitalCore
Health Strategies, LLC (“VitalCore”), which provided medical services to prisoners at
Southern State Correctional Facility (“SSCF”). VitalCore contracted with Maxim
Healthcare Staffing (“Maxim”) to provide nursing services at SSCF. In the Third
Amended Complaint, Plaintiff names Amergis. For the purposes of this motion, the
court assumes that the allegations articulated against Maxim are amended to be against
Amergis.
On March 1, 2023, Kelley was held without bail at SSCF pending a hearing on an
extraditable warrant from New Hampshire. At medical intake, Kelley allegedly reported
that he had used illicit drugs within the past two to three days, and he tested positive for
cocaine and opiates. VitalCore intake staff identified Kelley as “currently detoxing/risk
for detox.” Third Amended Complaint (“Complaint”), ¶ 31. A VitalCore physician’s
assistant issued an opiate withdrawal order (“COWS order”). That order provided a list
of conditions upon which staff should “contact HCP” and ordered that Kelley be placed
on medical observation. Id., ¶ 34. The COWS order specified that nurses observing
Kelley should contact an HCP if Kelley became unresponsive or unstable, experienced
changes in mental status, or had seizures, temperature above 101.1 F, heart rate above
120, or a COWS score above 13. Id.
Switzer observed Kelley during the morning on March 5, 2023. After this point,
several nurses observed Kelley, but for purposes of this motion, the Court limits the
summary of alleged facts to the nurses who are the subject of the pending motions to
dismiss.
Bartlett observed Kelley during the morning on March 7, 2023. She allegedly
noted that his heart rate was 175. She called Dr. Fisher, who ordered an EKG and
tapered the Subutex. Bartlett observed Kelley again on March 8, 2023. His heart rate
was elevated above 120. She called Dr. Fisher, who allegedly issued no new orders.
At 8 p.m. on March 8, 2023, Marleau observed Kelley, and did not document his
vitals or condition.
On March 10, 2023, nurses at SSCF allegedly observed Kelley, who was
experiencing tremors. Id., ¶ 54. His heart rate was above 120. Shortly after noon, Dr.
Leppman saw Kelley and noted that he “may have ongoing withdrawal symptoms” but
“part of his problem is probably inactivity.” Id., ¶ 55.
In the morning on March 11, 2023, Barlett observed Kelley and documented
sweating, tremors, upset GI, aches, and a heart rate above 165. She contacted Dr.
Fisher, who ordered a urinalysis, which was not completed. Id., ¶ 66. That afternoon,
Barlett observed Kelley again. She documented a COWS score of 15, and noted “Detox
Nurse Progress Note w/phonecall” but did not further document any call. Id., ¶ 67.
On March 12, 2023, Bartlett observed that Kelley’s heart rate was over 120. The
Complaint alleges that she did not contact any provider on this occasion.

3
Around 8 a.m. on March 13, 2023, Switzer observed Kelley. She documented
sweating, tremors, and aches, heart rate at 120, and respirations at 22 and 24. She
noted a COWS score of 17. She entered “Detox Nurse Progress Note w/phonecall” but
did not further document any call with a provider.
Around 7:30 p.m. on March 13, 2023, Marleau observed Kelley. He entered his
notes in the medical chart around 2 a.m. the next day and entered further notes around
6 a.m. on March 14, 2023. Id., ¶¶ 77-78. He noted that he had seen Kelley lying on his
bed at 11:10 p.m. with a respiratory rate of 24 per minute.
Kelley was last seen breathing around 12:55 a.m. on March 14, 2023. At 1:09
a.m. that night, Corrections Officer Wilke observed Kelley was non-responsive and did
not appear to be breathing. Kelley was declared dead around 1:42 a.m. on March 14,
2023.
An autopsy revealed that bacterial endocarditis caused Kelley’s death.
Discussion
1. Motions 32, 33, and 34
The Court first addresses Switzer, Marleau, and Bartlett’s motions to dismiss
Count I (deliberate indifference to a serious medical need, § 1983), Count VI (gross
negligence), and Count VII (medical negligence). They argue that Plaintiff’s claims
cannot succeed against them because they are entitled to immunity. They also contend
that their alleged conduct does not constitute deliberate indifference to a serious
medical need, gross negligence, or medical negligence.
A. Immunity
Defendants first argue that the nurses are entitled to qualified and sovereign
immunity. According to Defendants, since Plaintiff makes the claim for deliberate
indifference to a serious medical need against the nurses in their official capacities as
nurses at SSCF and asserts that the nurses acted under color of law, each nurse “is the
equivalent of a state official” eligible for qualified immunity. See Defendant Stacy
Switzer’s Motion to Dismiss Third Amended Complaint (“Switzer MTD”) at 6;
Defendant Thomas Marleau’s Motion to Dismiss Third Amended Complaint (“Marleau
MTD”) at 7; and Defendant Samantha Bartlett’s Motion to Dismiss Third Amended
Complaint (“Bartlett MTD”) at 7.
Section 1983, under which Plaintiff brings the claim of deliberate indifference to
a serious medical need, “basically seeks ‘to deter state actors from using the badge of
their authority to deprive individuals of their federally guaranteed rights’ and to provide
related relief.” Richardson v. McKnight, 521 U.S. 399, 403 (1997) (quoting Wyatt v.
Cole, 504 U.S. 158, 161 (1992)). Defendants do not dispute in the context of this motion
that as nurses employed by a contractor to provide medical services in a state prison,
they are the sort of private parties acting under color of law such that section 1983

4
liability may attach. See id. at 403. The question is whether they may avail themselves
of qualified immunity.
“Qualified immunity shields federal and state officials from money damages
unless a plaintiff pleads facts showing (1) that the official violated a statutory or
constitutional right, and (2) that the right was ‘clearly established’ at the time of the
challenged conduct.” Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The “the mere performance of a
governmental function” does not necessarily entitle a private party susceptible to section
1983 liability to qualified immunity, “especially for a private person who performs a job
without government supervision or direction.” Richardson, 521 U.S. at 408–09
(citation omitted).
In Richardson, the Supreme Court determined that privately employed prison
guards worked in an “organizational structure [that was] subject to the ordinary
competitive pressures that normally help private firms adjust their behavior in response
to the incentives that tort suits provide—pressures not necessarily present in
government departments.” Richardson, 521 U.S. at 412. Therefore, in the absence of
“special reasons significantly favoring an extension of governmental immunity,” the
Court concluded that “private prison guards, unlike those who work directly for the
government, do not enjoy immunity from suit in a § 1983 case.” Id.
Still, Richardson “was not meant to foreclose all claims of immunity by private
individuals,” but rather, “the particular circumstances of that case—‘a private firm,
systematically organized to assume a major lengthy administrative task (managing an
institution) with limited direct supervision by the government, undertak[ing] that task
for profit and potentially in competition with other firms’—combined sufficiently to
mitigate the concerns underlying recognition of governmental immunity under § 1983.”
Filarsky v. Delia, 566 U.S. 377, 393 (2012) (quoting Richardson, 521 U.S. at 413). In
Filarsky, the Supreme Court concluded that circumstances similar to those in
Richardson were not involved where an individual attorney “was retained by the City to
assist in conducting an official investigation into potential wrongdoing” in a municipal
department. Id. at 393. It followed that the attorney, who had been hired to perform a
discrete assignment, was eligible for qualified immunity. Id. at 393–394.
The circumstances in this case, in which the State has contracted with a private
firm to provide medical services in a prison, and that firm has in turn hired another firm
to employ nurses for those services, resemble the situation in Richardson rather than
Filarsky. Defendants attempt to draw a similarity with Filarsky because of the
temporary nature of the traveling nurses’ assignments. But the defendant in Filarsky
was brought on to deal with a particular case due to his particular qualifications for that
task, and there is no indication that the nurses here were hired individually to treat the
decedent. The Court concludes that, for similar reasons to those articulated in
Richardson, Switzer, Marleau, and Bartlett are not eligible for qualified immunity. Cf.
Est. of Clark v. Walker, 865 F.3d 544, 551 (7th Cir. 2017) (privately employed nurse
working at a county jail was not eligible for qualified immunity); McCullum v. Tepe, 693

5
F.3d 696, 704 (6th Cir. 2012). The court therefore declines to dismiss on the basis of
qualified immunity.
Switzer, Marleau, and Bartlett also contend that they are also entitled to
sovereign immunity. There is no indication here that they are being sued in their official
capacity. The court declines to apply the doctrine of sovereign immunity to dismiss
claims that have not been made.
B. Deliberate indifference to a serious medical need,
“To prove a deliberate indifference claim, the [plaintiff] must satisfy two prongs:
‘(1) an objective prong that requires proof of serious medical need, and (2) a subjective
prong that mandates a showing of prison administrators’ deliberate indifference to that
need.’ ” Off. of Pub. Guardian v. Elliot Hosp., 626 F. Supp. 3d 520, 532 (D.N.H. 2022)
(quoting Kosilek v. Spencer, 774 F.3d 63, 82 (1st Cir. 2014)). “The objective ‘medical
need’ element measures the severity of the alleged deprivation, while the subjective
‘deliberate indifference’ element ensures that the defendant prison official acted with a
sufficiently culpable state of mind.” Smith v. Carpenter, 316 F.3d 178, 183–84 (2d Cir.
2003).
Like the motions to dismiss that the court decided on January 12, 2026, many of
the nurse defendants’ dismissal arguments are variations on the theme that the factual
allegations are conclusory or incomplete. As in the January 12, 2026 decision, the court
declines to parse the details of the arguments because they contradict the applicable
procedural standard. Treating all reasonable inferences from the facts pleaded in the
complaint as true, the court cannot say for certain that even after the evidence and facts
are developed, there is no possibility that Plaintiff would be entitled to relief for this
count. Defendants have adequate notice of the claims that Plaintiff asserts against
them. V.R.C.P.8(a)(1). Once the evidence of the decedent’s condition while in
Defendants’ care is developed in discovery and future motion practice, the parties will
have the opportunity to explore the question of whether the evidence would support a
conclusion that the nurses were deliberately indifferent to a serious medical need.
C. Gross negligence
Defendants argue that the allegations with regard to each nurse defendant do not
make out claims against them for gross negligence. “Gross negligence is negligence that
is more than an error of judgment; it is the failure to exercise even a slight degree of
care, owed to another.” Sutton v. Vermont Reg’l Ctr., 2019 VT 71A, ¶ 56, 212 Vt. 612
(quoting Kennery v. State, 2011 VT 121, ¶ 41, 191 Vt. 44) (citations omitted). “In other
words, to establish gross negligence, a plaintiff must show a defendant ‘heedlessly and
palpably violated a legal duty owed to plaintiff.’” Id. (quoting Amy’s Enters. v. Sorrell,
174 Vt. 623, 624 (2002)). “Whether a defendant’s conduct rose to the level of ‘[g]ross
negligence is ordinarily a question of fact for the jury, and an allegation of gross
negligence may be dismissed by the court only if reasonable minds cannot differ.’” Id.
(quoting Kennery, 2011 VT 121, ¶ 41).

6
Again, Defendants’ argument is at odds with the applicable procedural standard.
Plaintiff has alleged facts that, if taken as true, show that the nurses each observed the
decedent in an increasingly distressed state. Defendants characterize the allegations as
“simple incompetence, inaccurate record keeping, and clerical errors” such as those in
Powers v. Off. of Child Support, 173 Vt. 390, 399 (2002). Here, the complaint contains
allegations that beg for development of a factual record. The court cannot at this time
rule out the possibility that the nurses did not call the providers at all times when they
should have. When they did make the calls, did they accurately report the conditions?
Did they accurately record and execute the instructions they were given? Based on their
actual observations, how apparent was it that further action should have been taken?
See Johnson v. State of Vermont, No. 22-CV-00029, 2023 WL 3548801, at *11 (D. Vt.
May 18, 2023). It is simply not possible to rule out that discovery will reveal evidence
that their acts and omissions were grossly negligent, or to conclude at this early stage in
the litigation that this claim cannot succeed. The court declines to dismiss the claim of
gross negligence at this juncture.
D. Medical negligence
Defendants contend that the allegations do not support a claim of medical
negligence against the nurses. “In a medical-malpractice case, “plaintiff has the burden
of proving the applicable standard of care, that defendant breached that standard, and
that as a proximate result plaintiff suffered injuries that would not otherwise have
occurred.” Watrous v. Porter Med. Ctr., 2025 VT 47, ¶ 8 (quoting Taylor v. Fletcher
Allen Health Care, 2012 VT 86, ¶ 12, 192 Vt. 418) (quotation omitted). Again, the
allegations are sufficient to survive the motion to dismiss, and to the extent that
Defendants argue that “it is unclear how these actions reflect a lack of degree of
knowledge, skill or care,” that is something that can be tested in a motion for summary
judgment after development of the evidence, or at trial. Switzer MTD at 20. Because
the court cannot say with certainty at this time that the medical negligence claims
against the nurse will necessarily fail, it declines to dismiss those claims.
2. Motion 35
Amergis moves to dismiss Count V (negligent training); Count VI (gross
negligence via respondeat superior); Count VII (medical negligence via respondeat
superior); and Count I (deliberate indifference via respondeat superior).
A. Negligent training
One paragraph in the Third Amended Complaint alleges that Maxim (Amergis)
“failed to adequately train defendant nurses on matters of following standing medical
orders, identifying possible life-threatening conditions, how and when to contact
doctors for immediate patient care, or how to document vital signs.” Third Amended
Complaint, ¶ 140. The court construes this as a variation on a claim for negligent
training and supervision.

7
Amergis states that it “is a nationwide nurse staffing agency that does not
conduct facility-specific trainings, and is not privy to the specific medical needs of the
patients cared for by the nurses it has staffed in correctional facilities.” Amergis MTD at
10. “After arrangements were made to staff the licensed nurses at SSCF, Amergis had no
control over the actions taken by the nurses in treating patients, and had no ability (or
contractual responsibility) to supervise or require the nurses to complete additional
training courses.” Id. “Plaintiff fails to recognize that Amergis is not the entity that
bears responsibility for conducting facility-specific trainings on things like ‘how and
when to contact doctors for immediate patient care’ or ‘following standing medical
orders’ or ‘how to document vital signs’ in a specific facility’s electronic medical record
system.” Id. These are factual assertions on Amergis’s part that have no place in the
consideration of a motion to dismiss for failure to state a claim.
Amergis further argues that Plaintiff “fails to explain how Maxim/Amergis’
training program was inadequate, and provides no evidence as to how better or different
training could have prevented Mr. Kelley’s death.” Amergis MTD at 11. Again,
Amergis’s argument is out of place in the context of a motion under V.R.C.P. 12(b)(6).
Specific explanations and evidence are not needed at this stage, and Amergis will have
the opportunity in later procedural stages to argue that evidence of negligent training is
insufficient to support the claim.
B. Gross negligence and medical negligence claims against Amergis via
respondeat superior
Amergis contends that the claims for gross negligence and medical negligence
against the nurses are not sufficiently pleaded, and therefore those claims fail as well
against Amergis. As discussed above, those claims survive, and the court declines to
dismiss them as to Amergis.
C. Amergis’s liability via respondeat superior for the § 1983 claims against its
nurses
Amergis requests that to the extent that the complaint seeks to impute liability to
Maxim/Amergis for the § 1983 claims that it asserts against the nurse defendants, the
court should dismiss those claims because respondeat superior is not available in a §
1983 action. Indeed, with the exception of cases where a plaintiff claims that the § 1983
violations by employees of a private company stemmed directly from a company policy,
private employers are not liable under a theory of respondeat superior for the
constitutional torts of their employees. See Smith v. Centurion of Vermont, LLC, No.
5:20-CV-6, 2022 WL 19519879, at *5 (D. Vt. Sept. 13, 2022), report and
recommendation adopted, No. 5:20-CV-6, 2023 WL 2446298 (D. Vt. Mar. 10, 2023)
(quoting Rojas v. Alexander's Dep’t Store, Inc., 924 F.2d 406, 408 (2d Cir. 1990)); cf.
Iskander v. Vill. of Forest Park, 690 F.2d 126, 128 (7th Cir. 1982) (collecting cases).
Plaintiff has not included allegations that directly connect the alleged § 1983 violations
to a Maxim/Amergis policy. The court will therefore dismiss the § 1983 claims against
Amergis.

8
To the extent that Amergis’s argument about respondeat superior liability for §
1983 veers into an attempt to claim that as a “state actor” fulfilling a discretionary
function, it is eligible for qualified and sovereign immunity not only for the § 1983
claims but also for the other tort claims, the court declines to extend immunity to
Amergis for the reasons discussed in part 1.A, above.
Order
For the reasons discussed above, Defendant Switzer, Marleau, and Bartlett’s
motions to dismiss Count I (deliberate indifference to a serious medical need, § 1983),
Count VI (gross negligence), and Count VII (medical negligence) are denied. Defendant
Amergis’s motion to dismiss is denied as to Count V (negligent training), Count VI
(gross negligence via respondeat superior), and Count VII (medical negligence via
respondeat superior); and granted as to Count I (deliberate indifference to a serious
medical need (§ 1983) via respondeat superior).
Electronically signed: 8/4/2026 10:03:34 AM pursuant to V.R.E.F. 9(d)
_________________________________________
John R. Treadwell
Superior Court Judge