HIGGINS v. REED et al

Filing 32

ORDER ON DEFENDANTS MOTIONS FOR SUMMARY JUDGMENT granting 12 Motion for Summary Judgment; granting 13 Motion for Partial Summary Judgment By JUDGE NANCY TORRESEN. (dfr)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JEFFREY HIGGINS,
Plaintiff,
v.
KEVIN REED and JOSEPH BUBAR,
in his official capacity as Chief of
Police of the City of Fort Fairfield,
Maine,
Defendants.

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ORDER ON DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT
BACKGROUND
On May 26, 2007, Officer Kevin Reed of the Fort Fairfield Police Department
(“FFPD”) responded to a complaint that Jeffrey Higgins had exposed himself to
children outside his mother’s apartment building in Fort Fairfield, Maine. An
altercation between Officer Reed and Mr. Higgins ensued, and Officer Reed drew
his Taser1 and shot Mr. Higgins three times. Mr. Higgins was then arrested on
charges of disorderly conduct and refusing to submit to arrest. Mr. Higgins brought
a six-count Complaint against Officer Reed in his individual capacity and Chief
Joseph Bubar in his official capacity as Chief of the FFPD,2 alleging violations of 42
U.S.C. § 1983, the Maine Civil Rights Act (MCRA), Title II of the Americans with
A Taser is a weapon that fires two probes connected to high-voltage insulated wires that
attach to a subject’s body or clothes and transmit a .26 watt electrical signal that physically
2
Because Chief Bubar is sued only in his official capacity, he is not entitled to qualified
immunity. Kentucky v. Graham, 473 U.S. 159, 167, 105 S. Ct. 3099, 87 L. Ed. 2d 114 (1985).
1

Disabilities Act (ADA), and the Maine Human Rights Act (MHRA). Officer Reed
filed for partial summary judgment on counts III, IV, and V, and Chief Bubar filed
for summary judgment on all counts. For the reasons that follow, the Court hereby
GRANTS Officer Reed’s Partial Motion for Summary Judgment on Counts III, IV,
and V, and GRANTS Chief Bubar’s Motion for Summary Judgment.
FACTS
The parties have presented widely disparate versions of the facts. The Court
is required on motion for summary judgment to make all reasonable inferences in
the nonmovant’s favor. The facts viewed in the light most favorable to the Plaintiff3
are as follows. Mr. Higgins is a gay man who has been diagnosed with depression,
paranoia, and delusional disorder. Mr. Higgins has never been hospitalized because
of his mental illness, and his symptoms of depression and paranoia are controlled
by medication.
On May 26, 2007, FFPD Officer Kevin Reed4 responded to a complaint from a
neighbor that Mr. Higgins had exposed himself to the complainant’s young

The Plaintiff complicated matters by both admitting the Defendants’ version of the facts and
setting forth additional facts diametrically opposed to those he admitted. See Plaintiff’s Response to
Statement of Facts (Doc. 20). In accordance with the Court’s request at a conference of counsel held
June 21, 2012, the Plaintiff submitted a new Response that for the most part denied the Defendants’
statements of fact that were inconsistent with the Plaintiff’s version of the arrest. See Plaintiff’s
Response to Statement of Facts to Clarify the Record (Doc. 28).
3

Officer Reed has worked for the FFPD as a patrolman since May of 2004. Before becoming a
police officer, Officer Reed served for about twelve years in the military where he was trained on use
of force, investigation, sexual discrimination, and interview and interrogation techniques. In April of
2004, before joining the FFPD, Officer Reed completed a 100-hour reserve/part-time officer training
course through the Maine Criminal Justice Academy. After being hired by the FFPD, Officer Reed
participated in field training, and on December 16, 2005, he received a certificate for completing the
Basic Law Enforcement Training Program. Officer Reed was provided with the Standard Operating
Procedures of the FFPD. He also developed the FFPD’s Taser policy and was trained in Taser use.
4

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daughters.5 Officer Reed spoke to the complainant, and then went to the apartment
where Mr. Higgins was living with his mother, Maxine Higgins. Mrs. Higgins told
Officer Reed that her son had gone to bed, that she was concerned that he was
mixing liquor with prescription drugs, and that he had returned very drunk from a
friend’s house that day.6 Officer Reed told Mrs. Higgins about the neighbor’s
complaints and suggested that Mrs. Higgins seek mental health treatment for Mr.
Higgins from Aroostook Mental Health Center. Officer Reed left without asking
Mrs. Higgins to wake Mr. Higgins, hoping that Mr. Higgins would sleep off the
intoxication and realize that he had been inappropriate. Officer Reed returned to
the neighbor and told him to call the police if Mr. Higgins exposed himself again.
According to Mr. Higgins’s version of the arrest,7 Mr. Higgins woke up
shortly after Officer Reed left Mrs. Higgins and saw Officer Reed speaking to the
neighbor. As Mr. Higgins was standing in the doorway, Officer Reed, who was a few

The Plaintiff challenges the admissibility of the neighbor’s complaints to Officer Reed,
arguing that they are inadmissible hearsay under Federal Rule of Evidence 802. The Court uses
these statements not for the truth of the matters asserted but rather for the permissible purpose of
explaining what Officer Reed did next. United States v. Bailey, 270 F.3d 83 (1st Cir. 2001) (“Out of
court statements offered not for their truth but ‘offered only for context’ do not constitute hearsay.”).
5

The Plaintiff challenges Mrs. Higgins’s statements as hearsay. The Court uses these
statements not for the truth of the matter asserted but rather for the permissible purpose of showing
Officer Reed’s state of mind. United States v. Murphy, 193 F.3d 1, 5 n.2 (1st Cir. 1999) (“[A]n out-ofcourt statement might be offered to show that the declarant had certain information, or entertained
a specific belief . . . or it might be offered to show the effect of the words spoken on the listener (e.g.
to supply a motive for the listener’s action).”).
6

The Defendants’ account of the arrest is very different from the Plaintiff’s. Officer Reed
testified in his deposition that after leaving the complainant’s apartment, he saw and heard Mr.
Higgins standing in his driveway yelling and swearing in front of neighborhood children. According
to the Plaintiff’s deposition and his clarification of the facts, Mr. Higgins did not go outside onto the
driveway; he did not yell or swear; and Officer Reed charged at and barged into Mr. Higgins’s home.
October 6, 2011 Higgins Deposition at 63:2-12 (Doc. 20-7).
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hundred feet away, caught sight of Mr. Higgins and ran towards his apartment.8 As
Officer Reed approached the apartment, Mr. Higgins, who stood in the doorway,
told Officer Reed that he would be complaining to the Attorney General’s Office, the
Hate Crime Unit, and his attorneys about FFPD Officer James Chartier’s visit the
previous night on another indecent exposure complaint. Officer Reed barged into
the apartment, stating that he had a complaint relating to Mr. Higgins’s “shorts
dragging and urinating.” In a normal voice, Mr. Higgins denied that his shorts were
dragging or that he had urinated outside. This exchange lasted about fifteen to
twenty seconds. Officer Reed was able to smell alcohol on Mr. Higgins during the
exchange.
After pushing his way into the apartment, Officer Reed raised his handcuffs,
snapped them at Mr. Higgins, and told Mr. Higgins that he was being arrested for
disorderly conduct. Mr. Higgins took several steps back into the kitchen and denied
that he was being disorderly. Officer Reed dropped his handcuffs. As he picked
them up, he stepped on Mr. Higgins’s toe, causing Mr. Higgins to fall to the floor.
Once Mr. Higgins was down on the floor, Officer Reed drew his Taser and shot Mr.
Higgins three times.9

In the Complaint and his Response to Defendants’ Motions for Summary Judgment, the
Plaintiff claims that Officer Reed said something about a “faggot” on his charge to Higgins’s
apartment. The Plaintiff provides no record support for this claim.
8

The Plaintiff’s own Statement of Additional Material Facts (Doc. 20) (PSAMF) contradicts
itself on whether Mr. Higgins fell to the floor after the first shot, id. at ¶ 208, or was on the floor for
all three Taser firings. Id. at ¶¶ 185-87. Mr. Higgins testified in his October 6, 2011 deposition that
he fell down when Officer Reed stepped on his toe and was Tased once he was on the ground. October
6, 2011 Higgins Deposition at 67:22-25, 68:1-4.
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According to Mr. Higgins’s account, he was not outside immediately before
the arrest; he was not screaming or swearing; he was not threatening to make
Officer Reed pay for years of discrimination; and he was not defying Officer Reed or
resisting arrest. Officer Reed told Mr. Higgins that he was being arrested for
disorderly conduct only once; he did not order Mr. Higgins to submit to arrest; and
he did not warn Mr. Higgins that he would fire the Taser. At no point before or after
he started using the Taser did Officer Reed tell Mr. Higgins to get on his stomach or
give him any instructions on submitting to arrest. Mr. Higgins lay on the floor
groaning in pain and never tried to stand up or do anything after the first shot. Mr.
Higgins denied that he had been mixing alcohol with his prescription drugs as his
mother had claimed, and he said that his mother probably thought his sodas were
alcoholic beverages.
When Mr. Higgins was taken to the Aroostook Medical Center to have the
Taser probes removed after his arrest, he refused to take a breathalyzer test.
Mr. Higgins was charged with disorderly conduct, 17-A M.R.S.A. § 510-A, and
refusing to submit to arrest, 17-A M.R.S.A. § 751-B. After the arrest Officer Reed
issued Mr. Higgins a summons for indecent exposure, 17-A M.R.S.A. § 854. All of
the charges brought against Mr. Higgins were ultimately dismissed.10
Chief Bubar reviewed Officer Reed’s arrest report and was satisfied that
probable cause existed for the crimes charged and that Officer Reed had not

Although the record is silent as to why the disorderly conduct and resisting arrest charges
were dropped there is a suggestion that the indecent exposure charge was dropped because the
evidence that Mr. Higgins exposed his genitals was insufficient. Reed Deposition at 79 (Doc. 14-8).
10

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violated the Fort Fairfield Standard Operating Procedures by not calling for
backup.11 Chief Bubar also believed that Officer Reed was justified in cycling his
Taser three times to gain Mr. Higgins’s compliance.12 The record does not contain
the incident reports that were reviewed by the Chief, so it is unclear to the Court
exactly what Chief Bubar was approving.
Prior to this incident, Officer Reed did not consider Mr. Higgins to be
mentally ill. Officer Reed did not believe that Mr. Higgins was in a mental health
crisis during the incident, although he did suggest to Mrs. Higgins before the
incident that Mr. Higgins get mental health help, and he did describe Mr. Higgins’s
behavior as “bizarre.” As part of the Basic Law Enforcement Training Program,

The FFPD’s Standard Operating Procedures recognized that the following situations may
require two law enforcement officers to respond:
11

a.
b.
c.
d.
e.
f.
g.

Potential or actual assault on law enforcement officer
Possibility of or actual on-scene arrest for a felony or violent misdemeanor.
Potential or actual resistance to arrest.
Possibility of or actual use of force.
Crime in progress.
Fleeing suspect.
Domestic violence calls.

PSAMF Attachment 2 at 2 (Doc. 20-2). Law enforcement officers are directed to request back-up
assistance in these situations.
The FFPD Taser policy “is for the X-26 Advanced Taser to be used to lower the risk of
suspect and Officer injury when the use of force is lawfully justified.” Defendants’ Joint Statement of
Material Facts (DJSMF) at ¶ 58 (Doc. 14). The Taser “may be used to control a dangerous or violent
subject when deadly physical force does not appear to be justified and/or necessary; or attempts to
subdue the subject by other conventional tactics have been, or will be unsafe for Officers to approach
within contact range of the subject.” DJSMF Additional Attachment 3 at 1 (Doc. 15-3).
12

The policy enumerates a number of circumstances when the Taser may be used, including
when “[t]he suspect is punching or kicking,” “[t]he suspect is threatening to punch or kick,” “[l]esser
force options are ineffective,” “[t]he Officer reasonably believes the suspect poses a credible threat,”
or “[t]he suspect poses a threat from a distance, and the Officer is at risk of injury if he/she attempts
to close in.” DJSMF at ¶ 59. The policy specifically prohibits using the Taser in a punitive or coercive
manner. Id. at ¶ 60.

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Officer Reed was trained on the Americans with Disabilities Act, specifically that
police officers must accommodate individuals with mental health issues.13
In May of 2007, the FFPD had a General Order in place, entitled “Response
to Behavior of Persons in Mental Health Crisis,” (the “Crisis Policy”), setting forth
the agency’s policy on contact with individuals having a mental health crisis.
The Crisis Policy also establishes a Crisis Intervention Team (CIT) to provide
the Department with officers trained in handling an individual in mental health
crisis. The Crisis Policy also states that “law enforcement officers will attempt to
consult a CIT law enforcement officer prior to the use of physical control techniques

Officer Reed testified in his deposition that he took the training on ADA awareness, believed
he had seen the training material, and was “sure” that it was included in his training manuals from
the Academy. Officer Reed Deposition at 43:10-18. The ADA training materials stated:
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There are a number of physical disabilities and medical conditions that mimic
criminal behavior. To comply with the Americans with Disabilities Act which forbids
discrimination against people with disabilities, law enforcement officers must
recognize that such disabilities and medical conditions exist. The basic ADA
awareness class will provide officers with an overview of disabilities that may mimic
criminal behavior.
DJSMF Additional Attachment 1 at 1 (Doc. 15-1). Officer Reed also received a Maine Criminal
Justice Academy “All Points Bulletin” dated Fall 1994 that explained the holding and ramifications
of this Court’s decision in Jackson v. Inhabitants of the Town of Sanford, Civ. No. 94-12-P-H, 1994
WL 589617 (D. Me. Sept. 23, 1994). DJSMF ¶ 39. The Bulletin explained that: “Law enforcement
employees are not required to be doctors. However, they are required to be alert to the possibility of
encountering people with disabilities and the different types of disabilities.” Id.
Also included in Officer Reed’s training materials was a paragraph entitled “Criminal
Behavior or Signs of Illness?”, which instructed:
Law enforcement officers are not expected to be doctors and perform diagnoses on the
streets. When confronted with a situation, the officer must deal with it as it appears.
If someone with swinging fists rushes an officer, the officer must control the attacker
first and ask questions later. However, when there is no immediate danger, all
officers should take the time to assess what is going on. Observe. Ask questions. Do
not jump to conclusions. Evaluate. The decision you then make will be the best one
possible.
DJSMF Additional Attachment 1 at 6.

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on a person in mental health crisis.” DJSMF Additional Attachment 2 at 5 (Doc. 152). However, in May of 2007, the FFPD had neither a CIT nor a CIT Officer.
SUMMARY JUDGMENT STANDARD
Under Federal Rule of Civil Procedure 56, the Court shall grant summary
judgment if the movant shows “that there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of law.” “In applying this
principle, it is important to bear in mind that not every genuine factual conflict
necessitates a trial. It is only when a disputed fact has the potential to change the
outcome of the suit under the governing law if found favorably to the nonmovant
that the materiality hurdle is cleared.” Martinez v. Colon, 54 F.3d 980, 984 (1st Cir.
1995).
If the moving party will not bear the burden of proof at trial, the moving
party can make a prima facie case that it is entitled to summary judgment by either
submitting evidence that negates an essential element of the nonmoving party’s
claim, or demonstrating that the nonmoving party’s evidence is insufficient to
establish an essential element of its claim. Celotex Corp. v. Catrett, 477 U.S. 317,
106 S. Ct. 2548 (1986) (White, J., concurring). The nonmoving party may defeat the
movant’s prima facie entitlement to summary judgment by demonstrating to the
Court specific facts in the record overlooked or ignored by the moving party that
support the essential elements of the party’s claim. Id. at 2557; see Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 89 L. Ed.
2d 538 (1986).

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“’Even in [disability] discrimination cases where elusive concepts such as
motive or intent are at issue,’ summary judgment is appropriate if the non-moving
party rests ‘merely upon conclusory allegations, improbable inferences, and
unsupported speculation.’” Forestier Fradera v. Municipality of Mayaguez, 440 F.3d
17, 21 (1st Cir. 2006) (quoting Benoit v. Technical Mfg. Corp., 331 F.3d 166, 173 (1st
Cir. 2003) (quoting Feliciano de la Cruz v. El Conquistador Resort & Country Club,
218 F.3d 1, 5 (1st Cir. 2000))).
DISCUSSION
I.

Municipal Liability – Defendant Bubar’s Motion for Summary
Judgment on Counts I, II and VI
A. Background
Count I of the Complaint alleges that Officer Reed violated the Plaintiff’s

First and Fourth Amendment rights in violation of 42 U.S.C. § 1983.14 Count II
alleges that Officer Reed violated the Plaintiff’s rights under the Maine
Constitution in violation of the MCRA, 5 M.R.S.A. § 4682.15 In Count VI, the
Plaintiff alleges that the FFPD should be held liable for Officer Reed’s violations of
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of
any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in
an action at law, suit in equity or other proper proceeding for redress . . . .” 42 U.S.C. § 1983.
14

“Whenever any person, whether or not acting under color of law, intentionally interferes or
attempts to intentionally interfere by physical force or violence against a person, damage or
destruction of property or trespass on property or by the threat of physical force or violence against a
person, damage or destruction of property or trespass on property with the exercise or enjoyment by
any other person of rights secured by the United States Constitution or the laws of the United States
or of rights secured by the Constitution of Maine or laws of the State or violates section 4684-B, the
person whose exercise or enjoyment of these rights has been interfered with, or attempted to be
interfered with, may institute and prosecute in that person’s own name and on that persons’ own
behalf a civil action for legal or equitable relief.” 5 M.R.S.A. § 4682(1-A).
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42 U.S.C. § 1983 and 5 M.R.S.A. § 4682 because the FFPD did not properly train
Officer Reed and was deliberately indifferent to the risk of constitutional violations.
Chief Bubar has moved for summary judgment on Counts I, II and VI,
arguing that the Plaintiff has failed to demonstrate any deficient FFPD policies or
customs that were the moving force behind the alleged constitutional violations.
B. Applicable Law
In order to hold a municipality liable for the constitutional violations of its
employee, the plaintiff must meet two elements. First, a municipal employee must
have violated the plaintiff’s constitutional rights, and second, the municipality must
be responsible for that violation. Young v. City of Providence ex rel. Napolitano, 404
F.3d 4, 26 (1st Cir. 2005). To establish that a municipality is responsible for a
violation, the Plaintiff must show that the alleged municipal action constitutes a
“policy or custom” attributable to the city. The second element has its own two
components:
1) that the municipal policy or custom actually have caused the
plaintiff’s injury, and 2) that the municipality possessed the requisite
level of fault, which is generally labeled in these sorts of cases as
deliberate indifference.
Id. (internal citations omitted). See Monell v. Dep’t of Social Servs. of City of New
York, 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978) (municipality can be
liable for the constitutional violations of an employee, not on a respondeat superior
theory, but because official policy or custom caused the constitutional deprivation);
Bordanaro v. McLeod, 871 F.2d 1151, 1155 (1st Cir. 1989).

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In the absence of an unconstitutional “policy, statement, ordinance,
regulation, or decision officially adopted and promulgated by that body’s officers,” a
municipality may be held liable for “constitutional deprivations visited pursuant to
governmental ‘custom’ even though such a custom has not received formal approval
through the body’s official decisionmaking channels.” Monell, 436 U.S. at 690. The
Eighth Circuit has succinctly summed up the requirements for establishing a
municipal custom. The Plaintiff must show:
1) The existence of a continuing, widespread, persistent pattern of
unconstitutional misconduct by the governmental entity’s
employees;
2) Deliberate indifference to or tacit authorization of such conduct by
the governmental entity’s policymaking officials after notice to the
officials of that misconduct; and
3) That plaintiff was injured by acts pursuant to the governmental
entity’s custom, i.e. that the custom was the moving force behind
the constitutional violation.
Jane Doe A v. Special Sch. Dist. of St. Louis Cnty., 901 F.2d 642, 646 (8th Cir. 1990).
See also Bordanaro, 871 F.2d at 1156; Buchanan v. Maine, 417 F. Supp. 2d 45, 65
(D. Me. 2006).
A municipality can also be liable for a municipal employee’s constitutional
violation when the municipality had a “policy” of inadequately training its
employees to avoid constitutional violations in usual and recurring situations.
Again, the plaintiff must establish fault and causation: “the inadequacy of police
training may serve as the basis for § 1983 liability only where the failure to train
amounts to deliberate indifference to the rights of persons with whom the police
come into contact” and “the identified deficiency in a city’s training program must

11

be closely related to the ultimate injury.” City of Canton v. Harris, 489 U.S. 378,
388, 390, 109 S. Ct. 1197, 103 L. Ed. 2d 412 (1989).
“‘Deliberate indifference’ is a stringent standard of fault, requiring proof that
a municipal actor disregarded a known or obvious consequence of his action.” Board
of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 410, 117 S. Ct. 1382, 137
L. Ed. 2d 626 (1997). The Supreme Court has explained:
A pattern of similar constitutional violations by untrained employees is
“ordinarily necessary” to demonstrate deliberate indifference for
purposes of failure to train. . . . Without notice that a course of training
is deficient in a particular respect, decisionmakers can hardly be said
to have deliberately chosen a training program that will cause
violations of constitutional rights.
Connick v. Thompson, 131 S. Ct. 1350, 1360, 179 L. Ed. 2d 417 (2011). Fault is
established “[w]hen city policymakers are on actual or constructive notice that a
particular omission in their training program causes city employees to violate
citizens’ constitutional rights.” Id.
There are a number of cases that have helpfully defined the contours of
deliberate indifference. Bordanaro, Canton and Young teach that in the absence of a
pattern of constitutional violations, there has to be an egregious single incident or a
single incident and some additional evidence suggesting deliberate indifference. In
Bordanaro, the First Circuit affirmed a verdict against a municipality based on
indirect evidence of the Chief of Police’s constructive knowledge of a longstanding,
widespread, facially unconstitutional custom at the Everett Police Department of
breaking down doors without a warrant. The evidence at trial showed that the
police broke down doors without a warrant often and that officers were provided

12

with a sledge hammer for that purpose. The evidence also showed that the Chief of
Police used an “extensive report review process to monitor the conduct of his
officers.” Bordanaro, 871 F.2d at 1156-57. The Bordanaro court noted that “a ‘single
incident’ of misconduct, without other evidence, cannot provide the basis for
municipal liability under § 1983. Such a result would be the equivalent of imposing
respondeat superior liability upon the municipality.” Id. at 1161 n.8.
In Canton, the Supreme Court left open the possibility that a plaintiff could
prevail on a failure to train claim based on a single incident. The Court posited that
in a narrow range of circumstances where a constitutional violation was a highly
predictable consequence of the failure to train officers to handle recurring
situations, a single incident might suffice. Brown, 520 U.S. at 409 (discussing
Canton, 489 U.S. at 390 n.10).
The First Circuit found such a case in Young, which involved the friendly fire
killing of an off-duty police officer who was mistaken for a criminal when he
responded to a crime scene. Although the plaintiff pointed to no evidence of any
prior friendly fire shootings, there was testimony that the police department had an
“always armed/always on duty” policy and was aware of the high risk that without
training on avoiding off-duty misidentifications, friendly fire shootings were likely
to occur. In Young, the evidence was sufficient for a jury to have found deliberate
indifference even absent a widespread pattern.
There are a number of cases involving disastrous encounters between police
officers and mentally ill individuals which shed light on deliberate indifference in

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facts closer to those presented by the instant case. In a case closer to home, Judge
Woodcock found that the plaintiff had failed “under either the Bordanaro recurring
or Young single incident standards.” Buchanan, 417 F. Supp. 2d at 68. See
Bordanaro, 871 F.2d at 1161 n.8; Young, 404 F.3d at 28. In Buchanan, two police
officers went to check on Michael Buchanan, an individual with known mental
illness who was demonstrating bizarre, paranoid behavior. One of the officers
decided that he should take Buchanan into protective custody. When the officer
attempted to reach for Buchanan, he resisted and retreated into his home. The
officer followed Buchanan into the home and encountered him holding a knife.
Buchanan stabbed the officer and the second officer drew his gun and fatally shot
Buchanan. Buchanan’s estate sued Lincoln County alleging that it was liable under
section 1983 because, among other things, it failed to provide adequate training to
its deputy sheriffs for encounters with mentally ill individuals. With no evidence
that Lincoln County faced situations like Mr. Buchanan’s on a regular and
recurring basis, no evidence of what Lincoln County’s policies and procedures were,
and no evidence that the police were following or ignoring their standards, the
district court concluded that the single incident shown by the plaintiffs was
inadequate to establish that the County acted with deliberate indifference and
granted summary judgment for the defendants.
In another deadly force case, Valle v. City of Houston, 613 F.3d 536 (5th Cir.
2010), the Fifth Circuit held that the Houston Police Department did not have
municipal liability for its failure to provide adequate CIT training to all of its

14

officers. Plaintiffs argued that the city’s failure to train officers in crisis intervention
team tactics caused the police to break down the door and shoot a suicidal mentally
ill individual who had barricaded himself inside his parents’ home. A CIT-trained
officer was present and was negotiating with the mentally ill person. Without
consulting with the CIT officer, the commanding officer ordered officers who were
not trained in CIT to enter the home. The situation rapidly escalated and the
unarmed mentally ill individual was shot and killed. The Fifth Circuit found that
the plaintiffs, the decedent’s parents, had failed to establish deliberate indifference
on the part of the city, because they “did not link this potential for constitutional
violations to a pattern of actual violations.” Valle, 613 F.3d at 548 (emphasis in
original). Although the Valles presented evidence that the Houston Police received
approximately forty calls per day involving situations in which CIT tactics would be
appropriate, the Fifth Circuit found that they had failed “to meet the high hurdle of
showing that excessive force was an obvious consequence of non-CIT officers
responding to CIT situations.” Id. at 550. See also Norton v. City of S. Portland,
Case No. 2:10-cv-287-GZS, 2011 WL 6140918 at *20-23 (D. Me. Dec. 9, 2011)
(plaintiff failed to establish City of South Portland’s liability for mentally ill man’s
death during standoff with police officers because city had no notice of training
deficiencies and there was no pattern of violations).

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C. Unconstitutional Policy or Custom
1. FFPD Custom of Taser Misuse
What began in the Complaint as a claim that Chief Bubar failed to properly
train and supervise Officer Reed in Taser use evolved in the Plaintiff’s Response to
Defendants’ Motions for Summary Judgment into an argument that the FFPD had
a custom of Taser misuse.16 The Plaintiff has never claimed that the FFPD Taser
policy itself is unconstitutional, and the record contains undisputed evidence that
Officer Reed received Taser training.
Assuming for the purposes of the Defendants’ Motions that Officer Reed’s use
of the Taser was an unconstitutional use of force,17 the Plaintiff has shown no
evidence of a widespread pattern of unconstitutional Taser use. There are no
statistics showing the frequency of Taser use by the FFPD, there is no evidence of
similar complaints, and the Plaintiff concedes that the FFPD Taser training was
adequate. Without evidence of a pattern of similar violations by the FFPD, the
Plaintiff has failed to establish an FFPD custom of Taser misuse. The FFPD cannot
be held liable under § 1983 for a custom of Taser misuse.

The Plaintiff has not put forth any argument or submitted facts to support the additional
allegations in the Complaint that the FFPD has municipal liability for failure to properly train and
supervise in warrantless entry, arrest, discrimination based on sexual orientation, and freedom of
speech. The Court will deem these claims waived. See e.g. Berry v. City of S. Portland, 525 F. Supp.
2d 214, 233 (D. Me 2007); Dressler v. Cmty. Serv. Commc’ns, Inc., 275 F. Supp. 2d 17, 25-26 (D. Me.
2003).
16

The Fourth Amendment protects against excessive use of force by police during arrests.
Graham v. Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 104 L. Ed. 2d 443 (1989).
17

16

2. FFPD Failure to Implement Crisis Policy
What began in the Complaint as a claim that the FFPD failed to train its
officers on how to deal with people with mental health disabilities narrowed after
discovery to a claim that the FFPD should be liable for its failure to implement its
Crisis Policy.18 Plaintiff’s Response to Defendants’ Motions for Summary Judgment
at 18.
The stated purpose of the Crisis Policy is “to assist persons in mental health
crisis in which law enforcement officers will make an arrest or protective custody
determination to assist said person or protect the general public.” DJSMF
Additional Attachment 2 at 1 (Doc. 15-2). The Crisis Policy defines a mental health
crisis as:
Behavior that creates a condition, either physical or psychological in
nature, which presents a threat of imminent and substantial harm to
that person or to other persons. This behavior is characterized by
symptoms such as: loss of contact with reality, extreme agitation,
severe depression, imminent suicidal or homicidal tendencies, or the
inability to control behavior to the extent that the symptoms are of
sufficient severity that they cause such a degree of mental dysfunction
that requires professional evaluation.
Id. at 2.
The Crisis Policy establishes a Crisis Intervention Team:
[T]o provide this agency with qualified personnel trained in the
handling of individuals in mental health crisis. The primary goal of the
CIT is to ensure the proper disposition of individuals who come into
contact with law enforcement officers while in crisis. This is
accomplished through the use of skills involving identification of types
of crisis and the de-escalation of individuals.

It is clear from the record that the FFPD does train its officers in how to deal with mentally
ill individuals. See supra text accompanying note 13.
18

17

Id. at 4. The Crisis Policy states that “law enforcement officers will attempt to
consult a CIT law enforcement officer prior to the use of physical control techniques
on a person in mental health crisis.” Id. at 5. The Plaintiff has shown that Officer
Reed did not attempt to consult a CIT officer before using the Taser on Mr. Higgins.
Even if he had, his attempt would have been futile, because, despite the Crisis
Policy, the Plaintiff has established that the FFPD has not created a CIT or
provided CIT training for any FFPD officers.
The Court assumes for the purpose of Defendants’ Motions for Summary
Judgment that Officer Reed violated the Plaintiff’s constitutional rights. Even
though the Plaintiff has not established that the situation confronted by Officer
Reed was a usual and recurring situation faced by FFPD officers, the fact that the
FFPD actually had a Crisis Policy that it failed to implement is minimally sufficient
to create a triable issue for the jury on the question of whether the FFPD was
deliberately indifferent to the rights of people suffering mental health crises.19
The Plaintiff’s claim fails, however, because he cannot establish that having a
Crisis Policy, including a CIT-trained officer and a CIT team, would have made a

The Court is cognizant of the FFPD’s limited resources and personnel. The FFPD consists of
only 4 full-time officers — Chief Bubar, a Sergeant, and two patrol officers — and 6-8 part-time
officers who fill in when full-time officers are sick or on vacation or for special events. DJSMF at ¶
41. The Supreme Court cautioned in Canton:
19

In virtually every instance where a person has had his or her constitutional rights
violated by a city employee, a § 1983 plaintiff will be able to point to something the
city ‘could have done’ to prevent the unfortunate incident. . . . It would also engage
the federal courts in an endless exercise of second-guessing municipal employeetraining programs. This is an exercise we believe the federal courts are ill suited to
undertake, as well as one that would implicate serious questions of federalism.
Canton, 489 U.S. at 392.

18

difference in his case. In other words, he fails to establish that the failure to
implement the Crisis Policy was the moving force behind the violation. This is
because the Plaintiff has not presented a factual basis to establish that he was
suffering a mental health crisis at the time of his arrest, and there is no evidence to
suggest that Officer Reed should have understood the Plaintiff to have been a
person suffering a mental health crisis.
According to the Plaintiff’s own version of the events, he was behaving
normally when he was assaulted by a police officer who charged into his apartment
to effectuate an unlawful arrest for disorderly conduct. The Plaintiff denies that
there was any incident which occurred outside the apartment. According to the
Plaintiff, he did not provoke the arrest; he was not acting in a disorderly manner; he
spoke calmly and did not swear or raise his voice; and he did not resist arrest.
Based on the Plaintiff’s version of the event, no reasonable law enforcement officer
would have understood the Plaintiff to have been suffering a mental health crisis.
Even if the Court were to consider the Defendants’ facts, on the theory that
although they are denied by the Plaintiff, they are more favorable to him at least on
this claim,20 the Plaintiff would be unable to establish that he was in a mental
health crisis. The facts asserted by Officer Reed describe a more pugnacious Mr.
Higgins, but they do not establish that Mr. Higgins was undergoing a mental health
The Eleventh Circuit has rejected an argument that the Court accept a mixed description of
the facts for summary judgment. “[W]e accept the nonmovant’s version of the events when reviewing
a decision on summary judgment. When the nonmovant has testified to events, we do not (as urged
by Plaintiffs’ counsel) pick and choose bits from other witnesses’ essentially incompatible accounts
(in effect, declining to credit some of the nonmovant’s own testimony) and then string together those
portions of the record to form the story that we deem most helpful to the nonmovant. Instead when
conflicts arise between the facts evidenced by the parties, we credit the nonmoving party’s version.”
Evans v. Stephens, 407 F.3d 1272, 1278 (11th Cir. 2005).
20

19

crisis as defined by the Crisis Policy.

Mr. Higgins did not present a threat of

imminent and substantial harm to himself or others. He did not appear to have lost
contact with reality. He was neither severely depressed nor suffering from
imminent suicidal or homicidal tendencies. Although he was feisty, his behavior did
not suggest a degree of mental dysfunction which would have required professional
evaluation.
Officer Reed understood (from Mrs. Higgins and from his own observations)
that Mr. Higgins was intoxicated. While Officer Reed thought that Mr. Higgins’s
neighborhood displays were bizarre and even suggested to Mrs. Higgins that he
seek mental health help, Officer Reed did not perceive Mr. Higgins to be someone
suffering a mental health crisis.
While the Plaintiff has established that he suffers from some mental illness,
he has not established that at the time of his arrest he was in a mental health crisis
as defined by the Crisis Policy. Because, under either the Plaintiff’s or the
Defendants’ factual scenario, the record does not permit a reasonable inference that
the failure to implement the Crisis Policy caused any constitutional violations, the
Court must grant summary judgment on Counts I and VI as against Defendant
Bubar. Because municipal liability under the Maine Civil Rights Act is coterminous
with municipal liability under section 1983, Berube v. Conley, 506 F. 3d 79, 84 (1st
Cir. 2007), Forbis v. City of Portland, 270 F. Supp. 2d 57, 61 (D. Me. 2003), the
Court must also enter summary judgment against the Plaintiff on Count II, the
Maine Civil Rights Act claim, as against Defendant Bubar.

20

II.

Americans with Disabilities Act

In Count III, the Plaintiff alleges that Officer Reed arrested Mr. Higgins,
unlawfully entered Mr. Higgins’s home, and Tased Mr. Higgins because of his
mental illness, thereby providing unequal access to police and safety services in
violation of § 12132 of Title II of the ADA.
A. ADA Statute of Limitations
Defendants ask the Court to apply the two-year statute of limitations found
in the MHRA, 5 M.R.S.A. § 4613(C), to Plaintiff’s action, rendering it time-barred.
The Court declines the Defendants’ request to revisit Judge Carter’s holding in
Conners v. Maine Med. Ctr., 42 F. Supp. 2d 34 (D. Me. 1999), that Maine’s six-year
statute of limitations for civil actions applies to actions under the ADA. 21
The Defendants also argue that even if the six-year statute of limitations
applies to actions brought under Title III of the ADA, a different statute of
limitations should apply to actions brought under Title II. However, other courts
The Defendants argue that “the thoughtful exposition of the MHRA in the District of Maine
in more recent years,” specifically in Rooney v. Sprague Energy Corp., 519 F. Supp. 2d 131 (D. Me.
2007), Brown v. Hartt Transp., 725 F. Supp. 2d 210 (D. Me. 2010), and Laksham v. Univ. of Maine
Sys., 328 F. Supp. 2d 92 (D. Me 2004), warrants revisiting the appropriate statute of limitations for
ADA claims. Yet, none of the cited cases cast any doubt on Judge Carter’s decision in Conners to
apply 14 M.R.S.A. § 752’s statute of limitations to ADA claims, particularly as Conners explicitly
recognized that the MHRA is most analogous to the ADA yet nonetheless held that 14 M.R.S.A. §
752 should apply.
Conners relied on the Supreme Court’s analysis in Wilson v. Garcia, 471 U.S. 261, 105 S. Ct.
1938, 85 L. Ed. 2d 254 (1985), which encouraged characterizing civil rights claims generally and
applying a single statute of limitations to all § 1983 claims rather than looking to the particular facts
of each claim. Conners, 42 F. Supp. 2d at 51. When a federal statute does not contain a statute of
limitations, Wilson directs courts “to adopt a local time limitation as federal law if it is not
inconsistent with federal law or policy to do so.” Wilson, 471 U.S. at 266-67. In Wilson, the Court
held that claims under § 1983 for violations of constitutional rights are best characterized as
personal injury claims. Wilson, 471 U.S. at 277-80. A decision to apply the MHRA statute of
limitations to an ADA claim would create inconsistency in the applicable statutes of limitations for
ADA and Rehabilitation Act claims and defeat Wilson’s consistency mandate.
21

21

have not differentiated between Titles II and III of the ADA. See Soignier v. Am.
Bd. of Plastic Surgery, 92 F.3d 547, 551 n.3 (7th Cir. 1996) (collecting cases). The
Court sees no reason to apply a different statute of limitations here.
For all of these reasons, the Court finds that Plaintiff’s claim under the ADA
is timely.
B. Proper Defendants
Defendant Reed seeks summary judgment on Count III because Title II of the
ADA applies to governmental entities only; it does not apply to individual
employees. Norton v. City of S. Portland, No. 2:10-cv-287-ZS, 2011 WL 6140918, at
*17 (D. Me. 2011) (citing Ms. K v. City of S. Portland, 407 F. Supp. 2d 290, 296 n.3
(D. Me. 2003) (collecting cases)). The Court agrees.
C. The Merits of the Title II ADA Claim
Title II of the ADA addresses discrimination by public entities in their
services, programs, and activities. Section 12132 specifically provides that “no
qualified individual with a disability shall, by reason of such disability, be excluded
from participation in or be denied the benefits of the services, programs, or
activities of a public entity, or be subjected to discrimination by any such entity.” 42
U.S.C.A. § 12132 (2005).
1. Qualified Individual with a Disability
A qualified individual is defined by the ADA as:
[A]n individual with a disability who, with or without reasonable
modifications to rules, policies, or practices, the removal of
architectural, communication, or transportation barriers, or the
provision of auxiliary aids and services, meets the essential eligibility

22

requirements for the receipt of services or the participation in
programs or activities provided by a public entity.
§ 12131(2). The ADA defines a disability as: “(A) a physical or mental impairment
that substantially limits one or more of the major life activities of such individual;
(B) a record of having such an impairment; or (C) being regarded as having such an
impairment.” § 12102(2).
The Defendants argue that the record evidence does not establish that the
Plaintiff has a mental impairment that substantially limits a major life activity or
that the Plaintiff was regarded by Officer Reed as having such an impairment. The
Plaintiff responds that the record contains evidence that he has a mental health
disability, that Officer Reed and Chief Bubar perceived him to have a mental health
disability, and that his mental illness substantially limits his ability to work.22
The Court sidesteps this issue because it finds that the Plaintiff cannot
prevail on his Title II claim even if he is a qualified individual with a disability.
2. Denial of Benefits Because of Disability
A plaintiff bringing a claim under Title II of the ADA must prove “that he
was either excluded from participation in or denied the benefits of some public
entity’s services, programs, or activities or was otherwise discriminated against”
and “that such exclusion, denial of benefits, or discrimination was by reason of the
plaintiff’s disability.” Buchanan 469 F.3d at 170-71 (quoting Parker v. Universidad
de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000)). Federal courts recognize two theories
The Court notes that the Plaintiff has produced only the barest of factual support for Mr.
Higgins’s disability. There is some dated evidence in the record that Mr. Higgins suffered from
mental illness, but there is also evidence in the record that Mr. Higgins’s symptoms were controlled
by medication.
22

23

of discrimination under Title II of the ADA arising from arrests: wrongful arrest
and failure to reasonably accommodate during arrest. In Gohier, the Tenth Circuit
explained the two:
The first is that police wrongly arrested someone with a disability
because they misperceived the effects of that disability as criminal
activity. The second is that, while police properly investigated and
arrested a person with a disability for a crime unrelated to that
disability, they failed to reasonably accommodate the person’s
disability in the course of investigation or arrest, causing the person to
suffer greater injury or indignity in that process that other arrestees.
Gohier v. Enright, 186 F.3d 1216, 1220-21 (10th Cir. 1999) (internal citations
omitted).23 In Gohier, the plaintiff represented the estate of Mr. Lucero, a paranoid
schizophrenic, who was fatally shot by a police officer when he advanced on the
officer holding what looked like a knife. The Tenth Circuit characterized the nature
of the plaintiff’s ADA claim as:
Logically intermediate between the two archetypes . . . Officer Enright
did not use force on Mr. Lucero because he misconceived the lawful
effects of his disability as criminal activity, inasmuch as Lucero’s
assaultive conduct was not lawful. Neither did Enright fail to
accommodate Lucero’s disability while arresting him for some crime
unrelated to his disability. Instead, Enright used force on Lucero while
Lucero was committing an assault related to his disability.
See Jackson v. Town of Sanford, No. 94-12-P-H, 1994 WL 589617, at *1 (D. Me. Sept. 23,
1994) (summary judgment against plaintiff on Title II ADA claim denied where police arrested
plaintiff because they mistook slurred speech and swaying caused by stroke as drug or alcohol
impairment); Gorman v. Bartch, 152 F.3d 907, 913 (8th Cir. 1998) (paraplegic arrestee who was not
provided with accommodations in post-arrest transportation stated claim for discrimination under
Title II of ADA); Lewis v. Truitt, 960 F. Supp. 175, 178 (S.D. Ind. 1997) (summary judgment against
plaintiff on Title II ADA claim denied where police officers knew that plaintiff was deaf yet arrested
him for not responding appropriately). Cf. Bates ex rel. Johns v. Chesterfield Cnty., 216 F.3d 367, 373
(4th Cir. 2000) (Bates not arrested because of his disability but because there was probable cause to
believe that he assaulted a police officer, thus, the stop, the use of force, and the arrest of Bates were
not by reason of Bates’s disability, but because of Bates’s objectively verifiable misconduct); Scozzari
v. City of Clare, 723 F. Supp. 2d 974, 980 (E.D. Mich. 2010) (officer’s perception of Scozzari’s conduct
as criminal assault was based on nature of the underlying conduct, not because his disability made
conduct appear unlawful).
23

24

Gohier, 186 F.3d at 1221 (internal citations and quotation omitted).
The Plaintiff fails to articulate his theory for recovery under Title II of the
ADA other than to state that “he was deprived of equal access to police services
because of a mental health disability.” Plaintiff’s Response to Defendants’ Motions
for Summary Judgment at 11. Plaintiff lays down the following dots but fails to
connect them: 1) Officer Reed’s arrest of the Plaintiff for disorderly conduct was
illegal; 2) the basis of Officer Reed’s actions were Plaintiff’s verbal protests of
Officer Reed’s actions; 3) Plaintiff’s verbal protests are protected speech under the
First Amendment; 4) Plaintiff’s verbal protests were a manifestation of his paranoid
delusions; and 5) Plaintiff’s verbal protests so angered Officer Reed that he later
filed a false indecent exposure probable cause affidavit.
As legal support for his theory, Plaintiff relies on Barber v. Guay, 910 F.
Supp. 790 (D. Me. 1995). Although Barber brought a Title II ADA claim asserting
that he had been denied proper police protection and fair treatment due to
psychological and alcohol problems, and although the claim survived a motion for
summary judgment, it is clear that the defendant in Barber had a limited argument
for summary judgment different from what is being asserted here. The Tenth
Circuit explained the limitations of Barber as follows:
In the brief part of the opinion declining to dismiss Barber’s ADA
claim, the court did not specify how the police may have violated Title
II in his arrest. The ADA discussion is cursory, as it serves only to
reject a misguided argument that, because Barber was not an
employee under ADA’s Title I, the ADA did not apply at all. Barber

25

thus offers little help in deciding when Title II claims are viable in an
arrest context.
Gohier, 186 F.3d at 1221 n.3 (internal citations omitted).
Whether the Plaintiff is proceeding under a wrongful arrest theory, a failureto-accommodate-during-arrest theory, or some hybrid of the two, an essential
element of any theory would be that the discrimination be “by reason of the
Plaintiff’s disability.” Buchanan, 469 F.3d at 171. Under the Plaintiff’s version of
the events, the Plaintiff made a single comment to Officer Reed about the previous
night’s involvement with Officer Chartier. This exchange took 15 to 20 seconds and
the Plaintiff spoke in a normal tone of voice. He made no verbal outbursts. He did
not swear. He did not resist arrest. He did not defy Officer Reed. Plaintiff fails to
explain how Officer Reed could have been motivated by verbal outbursts which were
manifestations of Plaintiff’s paranoid delusions when the Plaintiff claims that he
made no verbal outbursts. The Plaintiff has not established a factual predicate
sufficient to allow a reasonable factfinder to infer that he engaged in any behavior
that could have been perceived as stemming from his disability. Because he has
failed to establish that any discrimination by Officer Reed was because of Plaintiff’s
disability, the Title II claim under the ADA fails.
The Plaintiff’s argument that Officer Reed baselessly charged Mr. Higgins
with indecent exposure also does not provide a basis for an ADA claim. The
inference that the Plaintiff asks the Court to draw, that Officer Reed completed the
probable cause affidavit for indecent exposure out of anger at the (non-existent)
verbal outbursts caused by Mr. Higgins’s mental illness, and not because Mr.

26

Higgins exposed his backside and pubic hair to neighborhood children, causing
affront and alarm, is not supported by record evidence and is not reasonable.
Although Officer Reed may have been wrong to complete the probable cause
affidavit when he did not have adequate evidence that Mr. Higgins showed his
genitals, there is no evidence that he did so because of animus towards Mr. Higgins
on account of his mental illness.
To the extent that the Plaintiff is making an argument that the FFPD
violated Title II of the ADA for failing to sufficiently train its officers, this argument
is foreclosed by the First Circuit’s decision in Buchanan. The First Circuit did not
decide whether Title II imposes a duty on police departments to have policies and
training on the needs of the mentally ill, but did find that if a police department
does have policies and training, “[a]n argument that police training, which was
provided, was insufficient does not present a viable claim that Buchanan was
‘denied the benefits of the services . . . of a public entity’ by reason of his mental
illness, as required under 42 U.S.C. § 12132.” Buchanan, 469 F.3d at 177. As
discussed above, the FFPD did generally train its officers in dealing with the needs
of the mentally ill. The absence of a CIT team or CIT trained officer is not fatal
here, because the Plaintiff has not established evidence that the situation called for
a CIT response.

27

III.

Count IV: Maine Human Rights Act Disability Discrimination

The parties agree that Count IV of the Complaint, alleging violations of the
MHRA, Title 5 M.R.S.A. § 4591,24 is time-barred by the MHRA’s two-year statute of
limitations.25 The incident between Officer Reed and Mr. Higgins that is the basis
for this suit is alleged to have occurred “on or about May 27, 2007,” well over two
years from April 13, 2011, when Plaintiff commenced this action.
IV.

Count V: Maine Human Rights Act Sexual Orientation
Discrimination

In his Complaint, the Plaintiff bases his claim under the MHRA, 5 M.R.S.A. §
4552 et seq. Section 4613(2)(C) of the MHRA provides a two-year statute of
limitations for actions under the MHRA’s civil action provision, 5 M.R.S.A. § 4621.
The Plaintiff argues in his Response that his action could be brought under 5
M.R.S.A. § 4682, the civil action provision of the MCRA. However, it was not
brought under this provision. Therefore, the Plaintiff’s claim of discrimination in
access to police and safety services on May 27, 2007, is untimely.
V.

Punitive Damages
Punitive damages are not available against a municipality. City of Newport v.

Fact Concerts, Inc., 453 U.S. 247, 271 (1981). Both parties agree that punitive
damages are not available against Chief Bubar.

See also 5 M.R.S.A. 4592(1) (“unlawful discrimination also includes . . . E. A qualified
individual with a disability, by reason of that disability, being excluded from participation in or
being denied the benefits of the services, programs or activities of a public entity, or being subjected
to discrimination by any such entity.”).
24

“The action must be commenced not more than either 2 years after the act of unlawful
discrimination complained of . . . .” 5 M.R.S.A. § 4613(2)(C).
25

28

CONCLUSION
Defendant Bubar’s Motion for Summary Judgment is hereby GRANTED.
Defendant Reed’s Partial Motion for Summary Judgment on Counts III, IV, and V is
hereby GRANTED.

SO ORDERED.
Dated this 2nd day of August, 2012.
/s/ Nancy Torresen
United States District Judge

29