HANDLER et al v. MAYHEW et al
Filing
171
ORDER granting 153 Motion for Partial Summary Judgment as to Count XIII. By JUDGE JOHN A. WOODCOCK, JR. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ELEANOR HANDLER, et al.,
Plaintiff,
v.
MARY MAYHEW, et al.,
Defendant.
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1:11-cv-00308-JAW
ORDER GRANTING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY
JUDGMENT ON COUNT XIII
Russell and Eleanor Handler sought civil relief in this Court for a variety of
alleged statutory and constitutional wrongs related to Maine state court
proceedings terminating their parental rights. Count XIII of the Third Amended
Complaint alleges that Bryant White, Scott Story, Waldo County, and the Waldo
County Sheriff’s Department (the Waldo County Defendants) are liable under 42
U.S.C. § 1983 for the unlawful arrest or malicious prosecution of Russell Handler.
Before the Court is the Waldo County Defendants’ Motion for Partial Summary
Judgment as to Count XIII. Mr. Handler’s § 1983 claim is grounded on the success
of his malicious prosecution theory. In order to prevail on his malicious prosecution
claim, however, Mr. Handler must show that the criminal proceeding terminated
favorably to him; the undisputed facts of the summary judgment record, even
viewed in a light most favorably to Mr. Handler, show that he pleaded nolo
contendere to the criminal charges. Accordingly, the Waldo County Defendants are
entitled to judgment as a matter of law on Count XIII.
I.
LEGAL STANDARD
A court may grant summary judgment under Federal Rule of Civil Procedure
56 if the record demonstrates that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P.
56(a). “Material” means that the fact “‘has the potential to change the outcome of
the suit under the governing law if the dispute over it is resolved favorably to the
nonmovant.’” Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001) (quoting
McCarthy v. Nw. Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995)). “Genuine” means
that “‘the evidence about the fact is such that a reasonable jury could resolve the
point in favor of the nonmoving party.’” Id. (quoting McCarthy, 56 F.3d at 315).
The Court must examine the record evidence “in the light most favorable to, and
drawing all reasonable inferences in favor of, the nonmoving party.” Feliciano de la
Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir. 2000).
Summary judgment should be entered “against a party who fails to make a showing
sufficient to establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
A party may support or oppose a statement of fact using an affidavit, but the
affidavit must be made on personal knowledge. FED. R. CIV. P. 56(c)(4). The Court
2
need not credit statements of “fact” that are argumentative or conclusory. Wynne v.
Tufts Univ. Sch. of Med., 976 F.2d 791, 796 (1st Cir. 1992).
II.
FACTS
A.
Procedural Posture
The Handlers1 filed their first Complaint on August 12, 2011. Compl. (ECF
No. 2).
They filed a First Amended Complaint on November 21, 2011, which
Defendants White and Robert Tiner answered on December 12, 2011. First Am.
Compl. (ECF No. 11); Answer to Am. Compl. (ECF No. 19). Four days later, on
December 16, 2011, the Handlers filed a Second Amended Complaint. Second Am.
Compl. (ECF No. 27).
Following a series of dispositive motions by the Maine State Defendants, the
Handlers requested leave to file a proposed Third Amended Complaint on December
10, 2012. Pls.’ Mot. for Leave to File Second Am. Compl. Joining Additional Defs.
(ECF No. 107).
The Court granted that motion on January 17, 2013.
Order
Granting Mot. to Amend (ECF No. 118). The Handlers filed their Third Amended
Complaint the next day, Third Am. Compl. (ECF No. 12), and Defendants White,
Story, Tiner, Waldo County, and the Waldo County Sheriff’s Department answered
on January 23, 2013. Answer to Am. Compl. (ECF No. 121).2
Although Eleanor Handler was terminated as a party by the Court’s dismissal of most of the
counts against the State Defendants, the Court refers to the plaintiffs as “the Handlers” for clarity
and consistency with earlier orders.
2
The Defendants claim that the operative pleading here should be referred to as a “Second
Amended Complaint,” Mot. for Partial Summ. J. at 1 n.2 (ECF No. 153) (June 14, 2013), but the
docket shows an initial Complaint and three amendments. The Handlers filed the first amendment
as a matter of course under Federal Rule of Civil Procedure 15(a) since it was filed before service.
FED. R. CIV. P. 15(a)(1)(A). On December 16, 2011, the Handlers filed an unopposed motion to file a
1
3
The Waldo County Defendants moved for partial summary judgment as to
Count XIII on June 14, 2013. Mot. for Partial Summ. J. (ECF No. 153) (Defs.’ Mot.).
They included a set of Stipulated Facts and an additional Defendants’ Statement of
Material Facts. Stipulated Statement of Material Facts (ECF No. 151) (Stip.); Defs.
Bryant White, Scott Story, Waldo Cnty. and the Waldo Cnty. Sheriff’s Dep’t’s
Statement of Material Facts in Support of Mot. for Summ. J. (ECF No. 152) (DSMF).
With the Defendants’ facts came affidavits from Detective White, DSMF Attach. 3
Aff. of Bryant White (ECF No. 152) (White Aff.), Deputy Merl Reed, DSMF Attach. 4
Aff. of Merl Reed (ECF No. 152) (Reed Aff.), and Sheriff Story, DSMF Attach.7 Aff.
of Scott Story (ECF No. 12) (Story Aff.).
The Handlers filed an opposition to the motion on July 12, 2013. Pl.’s Resp.
to Def.’s Mot. for Partial Summ. J. (ECF No. 160) (Pl.’s Opp’n). They filed a reply
statement of material facts, Pl.’s Resp. to Def.’s Statement of Material Facts (ECF
No. 161) (PRDSMF), and a statement of additional material facts. Pl.’s Statement of
Material Facts (ECF No. 162) (PSAMF).
Both Russell Handler and Eleanor
Handler filed affidavits as well. Pl.’s Opp’n Attach. 2 Aff. of Russell Handler (ECF
No. 160) (Russell Handler Aff.); Pl.’s Opp’n Attach. 3 Aff. of Eleanor Handler (ECF
No. 160) (Eleanor Handler Aff.).
The Waldo County Defendants replied to the Handlers’ opposition on July 31,
2013. Def.’s Reply Mem. in Support of Mot. for Partial Summ. J. (ECF No. 168)
second amended complaint and on the same day, the Court granted the motion. Unopposed Mot. to
Am. Compl. (ECF No. 26); Order Granting Without Objection Unopposed Mot. to Am. Compl. (ECF
No. 29). As noted, on January 17, 2013, the Court granted the Handlers’ motion to file third
amended complaint. The Third Amended Complaint therefore is the operative pleading.
4
(Defs.’ Reply). These Defendants accompanied this opposition with a response to the
Handlers’ motions to strike and with a response to the Handlers’ statement of
additional material facts. Defs. Bryant White, Scott Story, Waldo Cnty., and the
Waldo Cnty. Sheriff’s Dep’t’s Resp. to Pl.’s Req. to Strike Paragraphs from Defs.’
Statement of Material facts and Resp. to Additional Material Facts (ECF No. 169)
(Defs.’ Opp’n to Mot. to Strike) (DRPSAMF).
The Waldo County Defendants
included with their reply an affidavit from Officer Randy Fox of the Waldo County
Corrections Facility, DRPSAMF Attach. 1 Aff. of Randy Fox (ECF No. 169) (Fox
Aff.), and a second affidavit from Sheriff Story. DRPSAMF Attach. 2 Aff. of Scott
Story (ECF No. 169) (Second Story Aff.).
B.
Summary Judgment Facts3
The parties agreed to thirty-three stipulated facts. Stip. The Defendants
supplied twenty-seven additional facts, DSMF, and the Handlers supplied forty-one
additional facts. PSAMF.
1.
Stipulated Facts
Detective Bryant White worked as a domestic violence coordinator at the
Waldo County Sheriff’s Department beginning in May 1999. Stip. ¶ 1. Detective
White worked at the Waldo County Sheriff’s Department until he retired in 2009.
Id. ¶ 2.
As domestic violence coordinator, Detective White’s duties were to
Unlike some of the earlier orders in this case, the parties have not filed this portion of the
case under seal nor have they suggested that the Court’s Order should be sealed. The Defendants
did move to seal Exhibits J and K to their Statement of Material Facts to protect personal identifier
information. Defs.’ Mot. to Seal (ECF No. 154). Magistrate Judge Rich granted that motion on June
17, 2013. Order Granting Mot. to Seal (ECF No. 157). As the Court has avoided referencing
personal identifiers in its Order, the full Order on this motion will be publicly filed.
3
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coordinate any investigations and prosecutions of domestic violence cases. Id. ¶ 3.
Scott Story has been the Sheriff of Waldo County since 2000. Id. ¶ 4.
On August 14, 2005, Russell Handler was arrested by Waldo County Sheriff’s
Deputy Merl Reed. Id. ¶ 5. On September 20, 2005, Russell Handler was arraigned
on an original assault charge stemming from the August 14, 2005 arrest along with
three added counts of assault. Id. ¶ 6.
An Amended Order for Protection from Abuse was issued on February 6,
2006, prohibiting Russell Handler from having any contact with Eleanor Handler
except “‘[i]n the presence of counsel for divorce proceedings and meditation [sic,
mediation],’” “‘[b]y telephone, but only for such calls initiated by Plaintiff [Eleanor
Handler],’” and “‘[i]n person for the purpose of meeting to discuss sale of marital
real estate and to meet with realtors and prospective buyers for said purpose.’” Id.
¶ 7 (quoting Stip. Attach. 1 Am. Order for Protection from Abuse (ECF No. 151)
(Feb. 6, 2006) (2006 PFA)). The Amended Order for Protection from Abuse was
served in hand on Russell Handler on February 9, 2006 by Sergeant Mark Schade.
Id. ¶ 8.
Detective White prepared an Affidavit in support of arrest warrant and
submitted it to the Maine District Court on March 3, 2006.
Id. ¶ 9.
Russell
Handler was arrested on March 4, 2006, in New York by the King’s Point Police
Department. Id. ¶ 10.
On April 14, 2006, the Governor of Maine, John Baldacci, signed and sealed a
Requisition to the Governor of the State of New York requiring that Russell
6
Handler be apprehended and delivered to Sheriff Story of the Waldo County
Sheriff’s Office. Id. ¶ 11. On May 2, 2006, the Governor of New York, George
Pataki, signed and sealed a Governor’s Warrant requiring that Russell Handler be
delivered to Maine. Id. ¶ 12. Russell Handler was released from jail on August 28,
2006. Id. ¶ 13.
During his entire tenure at the Waldo County Sheriff’s Office, Detective
Bryant White received only the one hour online video professional training related
to individuals who deal with mental illness. Id. ¶ 14. Detective White worked
closely with the Waldo County District Attorney’s Office. Id. ¶ 15.
Detective White received hundreds of pages of Eleanor Handler’s mental
health records. Id. ¶ 16. He received a package from Attorney Don Brown on
October 13, 2005, containing Ms. Handler’s medical records from MacLean Hospital,
Acadia Hospital, and Arbor-HRI Hospital. Id. ¶ 17.
Detective White made a
statement in his notes that he did not believe that these mental health records
provided by Attorney Brown were discoverable, and he recommended that they not
be released to the Defendant in a criminal case as discovery because he deemed
them not relevant to the Defendant. Id. ¶ 18.
Detective White received more medical records of Ms. Handler on October 26,
2005. Id. ¶ 19. Ms. Handler was actively telling Detective White that she was not
mentally ill around October 2005. Id. ¶ 20. However, Ms. Handler, on numerous
7
occasions,4 recanted the allegations she had made toward Mr. Handler. Id. ¶ 21.
Detective White never consulted with a mental health expert to go over the mental
health records he received on October 13 and 26, 2005. Id. ¶ 22.
Detective White believed the protection order that Ms. Handler had against
Mr. Handler in Maine applied outside the state of Maine. Id. ¶ 23. Detective White
understood that Ms. Handler had no protection order against Mr. Handler in New
York. Id. ¶ 24. Detective White agrees that around October 2005, the Handler case
was consuming “a lot of his time.” Id. ¶ 25.
Captain Tiner and Deputy Michael Dudley transferred Mr. Handler from
Nassau County in Long Island, New York to Belfast, Maine in July 2006. Id. ¶ 26.
Captain Tiner and Deputy Dudley were given the task of collecting Mr. Handler in
New York because they were “sworn,” and the policy of their police department is
“to have sworn staff go.” Id. ¶ 27.5
Deputy White aided Ms. Handler in obtaining a Protection from Abuse Order
against Mr. Handler in the fall of 2005. Id. ¶ 28. Deputy White described Mr.
Handler’s attitude in the jail in 2006 as within normal limits. Id. at¶ 29. Mr.
Handler maintains that he did not call Ms. Handler and violate the order of
protection. Id. ¶ 30. Mr. Handler states that he was called from unlisted numbers
and blocked numbers. Id. ¶ 31.
The Stipulated Facts do not identify when Ms. Handler recanted these accusations. It is
unclear from the Stipulated Facts when, relative to October 2006, Ms. Handler recanted. The
parties’ additional facts do not shed any light on the chronology.
5
The parties do not identify Deputy Dudley other than by title; he is not a named party and
does not appear in the Third Amended Complaint. See Third Am. Compl. The Court assumes from
the context that he is a Waldo County Deputy Sheriff.
4
8
All of the conduct alleged against Mr. Handler in 2006 as a violation of his
protection order occurred in the state of New York. Id. ¶ 32. None of the conduct
for which he was extradited occurred within the state of Maine. Id. ¶ 33.
2.
The Defendants’ Facts
As Sheriff of Waldo County, Scott Story is the final decision-maker at the
Waldo County Sheriff’s Department, including for matters related to both law
enforcement and corrections.
DSMF ¶ 1; PRDSMF ¶ 1.6
As Sheriff of Waldo
County, Mr. Story has to officially approve all policies and procedures at the Waldo
County Sheriff’s Department. DSMF ¶ 2; PRDSMF ¶ 2.7
Other than this case, there have been no complaints, lawsuits, or notices of
claim of false arrest or malicious prosecution against any employee of the Waldo
County Sheriff’s Department during Scott Story’s tenure as Sheriff. DSMF ¶ 3;
The Handlers interpose a qualified response, and also move to strike DSMF ¶ 1 under Local
Rule 56(e). They claim that “it is unclear if the affiant can produce admissible evidence to support
this fact,” and furthermore that “it is vague as to what ‘final decisions’ Sheriff Story can make on the
law enforcement and corrections sides.” PRDSMF ¶ 1. The motion to strike is overruled. A movant
for summary judgment may support his statement of facts with a sworn affidavit made on personal
knowledge. FED. R. CIV. P. 56(c)(1)(A). The affidavit serves as a proxy for trial testimony. Here, the
Defendants supported paragraph 1 with a citation to Sheriff Story’s affidavit. His statement as to
his role at the Sheriff’s Department reflects his personal knowledge. This is sufficient to support the
assertion of paragraph 1. Nor is the assertion, as far as it goes, “vague,” as the Handlers claim.
Furthermore, the Handlers’ qualified response is inappropriate. The purpose of a “qualified”
response is to allow the party opposing the assertion to explain why he cannot provide record
material in support of his opposition—not to challenge the sufficiency of the other side’s evidence. In
unusual cases, a “qualified” response may also be used to explain why additional information,
available in the record, is necessary to prevent the assertion from being materially incomplete or
otherwise misleading. It is not, however, an appropriate platform to make legal arguments, offer
unnecessary factual context, or introduce entirely new facts. The Court deems the Handlers’
qualified response admitted for the purpose of summary judgment under Local Rules 56(f), (g).
7
The Handlers’ motion to strike is overruled. See supra note 6. The Handlers also argue that
any “reference to policies and procedures is inadmissible hearsay.” PRDSMF ¶ 2. This is incorrect.
Hearsay is an out of court statement, offered to prove the truth of the matter asserted. FED. R. EVID.
801(c). The assertion of paragraph 2 does not include the contents of any policies; it only goes to
what Sheriff Story did as part of his official duties. The Court deems paragraph 2 admitted under
Local Rule 56(f), (g).
6
9
PRDSMF ¶ 3.8 Other than this particular case, Sheriff Story is unaware of any
prior allegations of false arrest or malicious prosecution against any employee of the
Waldo County Sheriff’s Department during his tenure as Sheriff.
DSMF ¶ 4;
PRDSMF ¶ 4.9
On August 14, 2005, Deputy Reed went to the Handlers’ residence in
response to a 911 call. DSMF ¶ 5; PRDSMF ¶ 5. He had been told by a dispatcher
that Eleanor Handler had called from a neighbor’s house, claiming her husband had
thrown her in a dumpster with no clothes. DSMF ¶ 5; PRDSMF ¶ 5.10 When he
arrived on the scene he spoke to Ms. Handler, who told him that Mr. Handler had
grabbed her by the arm, “placed” her outside, naked, and made her get into a
The Handlers’ motion to strike is overruled. See supra note 6. The record support for the
assertion of paragraph 3 is Sheriff Story’s affidavit, which is not hearsay, and contrary to the
Handlers’ claim that paragraph 3 is “open to a multitude of interpretations,” the assertion is
extremely specific. The Court deems paragraph 3 admitted under Local Rule 56(f), (g).
9
The Handlers’ motion to strike is overruled. The assertion of paragraph 4 is neither
“unsupported” nor “conclusory,” as the Handlers claim. To the contrary, it is supported by Sheriff
Story’s affidavit, and asserts a concrete, historical fact. A “conclusory” statement is one that asserts
a legal conclusion (e.g., “The Defendant’s negligence caused the Plaintiff’s injury”), asserts a
subjective fact (e.g., “The Defendant and the Plaintiff were best friends”), or asserts a complex fact
that must be proven by subsidiary facts (e.g., “The Defendant had extensive business dealings with
the Plaintiff”). Paragraph 4 makes a categorical but specific claim: that, other than this case, Sheriff
Story is unaware of any alleged false arrest or malicious prosecution by his staff during his tenure.
This is entirely appropriate for a statement of material facts. The Court deems paragraph 4
admitted under Local Rule 56(f), (g).
10
The Handlers’ motion to strike is overruled. The first ground for this motion is that the
assertion is not in the form of separately numbered paragraphs, as required by Local Rule 56(b).
PRDSMF ¶ 5. Nothing about Local Rule 56(b) requires each assertion to be a single sentence. The
second ground for objection is that the statement is inadmissible double hearsay. Id. However, as
the Defendants point out, the statement is offered to show Detective Reed’s motive for visiting the
residence, not to show that Mr. Handler had in fact thrown Ms. Handler naked into a dumpster. The
final ground for objection, authenticity, id., is irrelevant; the assertion does not go to the content of
the 911 call.
The Handlers also interpose a qualified response, but the qualification does not change the
substance of paragraph 5. See supra note 6. The Court deems paragraph 5 admitted under Local
Rule 56(f), (g).
8
10
dumpster. DSMF ¶ 6; PRDSMF ¶ 6.11 Deputy Reed arrested Mr. Handler and
charged him with assault in violation of 17-A M.R.S. § 207. DSMF ¶ 7; PRDSMF ¶
7.12
Before arresting Mr. Handler on August 14, 2005, Deputy Reed did not
communicate with Detective White concerning either Russell or Eleanor Handler.
DSMF ¶ 8; PRDSMF ¶ 8. Detective White was not present during the arrest of Mr.
Handler on August 14, 2005. DSMF ¶ 9; PRDSMF ¶ 9.
On August 14, 2005, Mr. Handler’s bail conditions stated that he would have
no direct or indirect contact with Ms. Handler. DSMF ¶ 10; PRDSMF ¶ 10.13 After
Deputy Reed arrested Mr. Handler, whether and how to prosecute the case against
Mr. Handler was in the hands of the prosecutor at the Waldo County District
Attorney’s Office. DSMF ¶ 11; PRDSMF ¶ 11.14
On August 15, 2005, Eleanor Handler wrote out a statement describing what
had happened the day before. DSMF ¶ 12; PRDSMF ¶ 12. She gave the statement
to Bryan White and told him that it was true. DSMF ¶ 12; PRDSMF ¶ 12.15
The Handlers interpose a qualified response, but the qualification does not change the
substance of paragraph 5. See supra note 6. The Court deems paragraph 6 admitted under Local
Rule 56(f), (g).
12
The Handlers’ motion to strike is overruled. See supra note 6. The Court deems paragraph 7
admitted under Local Rule 56(f), (g).
13
The Handlers’ motion to strike is overruled. See supra note 10. The Handlers also claim
that the record support for the Defendants’ paragraph 10 is inadmissible hearsay. PRDSMF ¶ 10.
However, the exhibit could be admitted as a record of a regularly conducted activity under Federal
Rule of Evidence 803(6), or as the statement of a party opponent under Rule 801(d)(2) because it was
signed by Mr. Handler.
14
The Handlers raise a relevancy objection to paragraph 11; that objection is overruled. The
assertion is relevant to Detective White’s qualified immunity defense.
15
The Handlers’ motion to strike is overruled. See supra note 10. The Handlers also interpose
a qualified response, but the qualification does not change the substance of paragraph 12. See supra
note 6. The Court deems paragraph 12 admitted under Local Rule 56(f), (g).
11
11
On September 20, 2005, Mr. Handler’s bail bond was amended and his bail
conditions stated that he would have no direct or indirect contact with Ms. Handler
or Sandra Flewellin. DSMF ¶ 13; PRDSMF ¶ 13. Mr. Handler signed this form.
DSMF ¶ 13; PRDSMF ¶ 13.16
A Protection from Abuse Order was issued on
October 3, 2005, which prohibited Mr. Handler from directly or indirectly contacting
Ms. Handler except in the presence of counsel for divorce proceedings and
mediation. DSMF ¶ 14; PRDSMF ¶ 14.17
On February 27 and 28, 2006, Russell and Eleanor Handler were present
together at the John F. Kennedy School in New York. DSMF ¶ 15; PRDSMF ¶ 15.18
On March 2, 2006, Detective White received a phone call from Claudia Kjer, a
Maine Department of Health and Human Services (MDHHS) caseworker. DSMF ¶
16; PRDSMF ¶16.
Ms. Kjer told Detective White that Mr. Handler and Ms.
Handler had been together to register their son at a school in New York. DSMF ¶
16; PRDSMF ¶ 16.19
On March 3, 2006, Detective White received a fax that
included a letter from the principal of the John F. Kennedy School in New York,
The Handlers’ motion to strike is overruled. See supra note 10. The Handlers also object
that the record support for paragraph 13 is inadmissible hearsay and also that it is not a certified
copy of the bail bond. Both grounds lack merit. See supra note 13. The Court deems paragraph 13
admitted under Local Rule 56(f), (g).
17
The Handlers’ motion to strike is overruled. See supra notes 10, 13. The Court deems
paragraph 14 admitted under Local Rule 56(f), (g).
18
The Handlers interpose a qualified response, but the qualification does not change the
substance of paragraph 15. See supra note 6. The Court deems paragraph 15 admitted under Local
Rule 56(f), (g).
19
The Handlers’ motion to strike is overruled. See supra note 10. The Handlers also object
that the phone call itself is hearsay unless Ms. Kjer testifies. PRDSMF ¶ 16. However, the contents
of the phone call are not being offered to prove that Mr. Handler was actually with Ms. Handler in
the school; that would be irrelevant to the malicious prosecution count. Rather, it is offered to show
Detective White’s state of mind on March 2, 2006. This makes the phone call admissible nonhearsay. The Court deems paragraph 16 admitted under Local Rule 56(f), (g).
16
12
which stated that Russell and Eleanor Handler had been together at the school on
February 27 and 28, 2006.
DSMF ¶ 17; PRDSMF ¶ 17. 20
On the same day,
Detective White received another fax that included sign in sheets from the John F.
Kennedy School in New York, which showed that Eleanor and Russell Handler had
both signed in at the school at 10:20 AM on February 27, 2006, and 9:20 AM on
February 28, 2006. DSMF ¶ 18; PRDSMF ¶ 18.21 That same day, Detective White
spoke to Wendy Higgins and Milton Higgins, who both told him that they had
spoken to Russell Handler on the phone that day and they had heard Eleanor
Handler in the background. DSMF ¶ 19; PRDSMF ¶ 19.22 On March 3, Detective
White also received a copy of an Affidavit of Claudia Kjer that stated that MDHHS
had learned that on February 28, 2006, Russell and Eleanor Handler had been
present together at a school in New York with their son. DSMF ¶ 20; PRDSMF ¶
20.23
On March 3, 2006. based on Detective White’s Affidavit in Support of Arrest
Warrant, District Court Judge W. Anderson24 authorized and issued an arrest
warrant charging Russell Handler with violating a protective order under 19-A
M.R.S. § 4011(1) and violating a condition of release under 15 M.R.S. § 1092(1)(A).
The Handlers’ motion to strike is overruled. See supra note 19. Detective White is
competent to testify to the contents of a fax that he received. The Court deems paragraph 17
admitted under Local Rule 56(f), (g).
21
The Handlers’ motion to strike is overruled. See supra note 20. The Court deems paragraph
18 admitted under Local Rule 56(f), (g).
22
The Handlers’ motion to strike is overruled. See supra note 20. The Court deems paragraph
19 admitted under Local Rule 56(f), (g).
23
The Handlers’ motion to strike is overruled. See supra note 20. The Court deems paragraph
20 admitted under Local Rule 56(f), (g).
24
The exhibit supporting paragraphs 21 and 22 shows the signature of a “W. Anderson, Judge,
District Court.”
20
13
DSMF ¶¶ 21-22; PRDSMF ¶¶ 21-22.25
Mr. Handler challenged extradition to
Maine. DSMF ¶ 23; PRDSMF ¶ 23. However, on July 6, 2006, Justice Frank A.
Gulotta, Jr., acting Supreme Court Justice in New York, ordered Mr. Handler to be
released to the Sheriff of Waldo County or his designee. DSMF ¶ 23; PRDSMF ¶
23.26
On July 17, 2006, the state of Maine filed a Motion for Revocation of PreConviction Bail, which was granted by a state court after a hearing. DSMF ¶ 24;
PRDSMF ¶ 24.27 On August 28, 2006, Mr. Handler pleaded nolo contendere to
violation of protective order and violation of condition of release.
DSMF ¶ 25;
PRDSMF ¶ 25.28 On the same day, Mr. Handler pleaded nolo contendere to one
assault charge and violation of conditions of release. DSMF ¶ 26; PRDSMF ¶ 26.29
Mr. Handler was sentenced to five months for the assault charge and ten days for
The Handlers’ motion to strike is overruled. See supra note 20. In addition, the assertions of
paragraphs 21 and 22 are supported by Detective White’s affidavit, made on personal knowledge.
White Aff. at ¶ 12. The Handlers also deny “that Detective White was forthcoming in his ‘Affidavit in
Support of Arrest Warrant’ regarding the territorial applicability of Russell Handler’s alleged
conduct to the State of Maine.” PRDSMF ¶ 21. This is a legal conclusion, not a fact. The Court will
address in due course whether Detective White committed a legal error in his affidavit. However,
the affidavit is factually correct; it states repeatedly that Mr. Handler’s conduct took place in the
state of New York. DSMF Attach. 15 Aff. in Support of Arrest Warrant, at 1-2. The Court deems
paragraphs 21 and 22 admitted under Local Rule 56(f), (g).
26
The Handlers’ motion to strike is overruled. They claim that the record evidence supporting
paragraph 23, Story Aff. Exs. G, H (ECF No. 152), is inadmissible because it is not a certified copy
and is hearsay. PRDSMF ¶ 23. They also make reference to certain unidentified “authenticity
issues” with Exhibit G. As the Defendants correctly note, none of these issues shows that there is no
admissible form of the evidence that would support the assertion. The Handlers have not made any
concrete allegation that the documents are inauthentic, and both can be self-authenticated through
certification. Both are also admissible as public records under Federal Rule of Evidence 803(8). The
Court deems paragraph 23 admitted under Local Rule 56(f), (g).
27
The Handlers’ motion to strike is overruled. See supra note 26. The Court deems paragraph
24 admitted under Local Rule 56(f), (g).
28
The Handlers’ motion to strike is overruled. See supra note 26. The Court deems paragraph
25 admitted under Local Rule 56(f), (g).
29
The Handlers’ motion to strike is overruled. See supra note 26. The Court deems paragraph
26 admitted under Local Rule 56(f), (g).
25
14
the violation of conditions of release charge, to be served concurrently. DSMF ¶ 27;
PRDSMF ¶ 27. He was also sentenced to ten days for the violation of protective
order charge and the violation of condition of release charge, to be served
concurrently with each other and the other charges. DSMF ¶ 27; PRDSMF ¶ 27.30
3.
The Handlers’ Facts31
a.
Ms. Handler’s Mental Illness
Ms. Handler had heard voices in her head since she was a child. PSAMF ¶ 4;
DRPSAMF ¶ 4. The voices became progressively worse through the years. PSAMF
¶ 5; DRPSAMF ¶ 5. Ms. Handler’s paranoia, fear, and delusions became so severe
that she had to go to a mental hospital in 2002. PSAMF ¶ 6; DRPSAMF ¶ 6. She
has been in and out of mental health hospitals regularly since that time. PSAMF ¶
7; DRPSAMF ¶ 7.
Ms. Handler authored a letter to David Abbot, a minister, on May 20, 2005,
in which she discussed her jealousy of Mr. Handler and her desire to see him fail.
PSAMF ¶ 27; DRPSAMF ¶ 27. She admits that she lied to Mr. Handler about
wanting children, because she never really wanted children.
PSAMF ¶ 27;
DRPSAMF ¶ 27.
The Handlers’ motion to strike is overruled. See supra notes 10, 26. The Court deems
paragraph 27 admitted under Local Rule 56(f), (g).
31
The Defendants claim that a number of the Handlers’ facts are not legally relevant to Count
XIII. Def.’s Reply at 9 n.3. However, the Defendants, deferring to this Court’s admonition at the
Rule 56(h) conference, did not move to strike any of these purportedly immaterial facts. The Court
recites the Handlers’ undisputed facts where there is a colorable claim of relevance to Count XIII,
and will analyze in detail their relevance in due course.
30
15
b.
Mr. Handler’s Arrest in 2005
At the time of the “dumpster incident” on August 14, 2005, Russell and
Eleanor Handler had just moved to the Cross Street residence in Maine. PSAMF ¶
10; DRPSAMF ¶ 10. That night, Ms. Handler had been up all night in a manic
rage, drinking and drugged. PSAMF ¶ 11; DRPSAMF ¶ 11. 32 She spent the night
throwing things out of the upstairs window into the dumpster.
PSAMF ¶ 11;
DRPSAMF ¶ 11. She did not hit the dumpster every time, and she was not sure
what she had thrown out, so she sometimes went downstairs in the dark and
climbed into the dumpster to sort through what she had thrown out. PSAMF ¶ 11;
DRPSAMF ¶ 11. She did this repeatedly all night. PSAMF ¶ 12; DRPSAMF ¶ 12.33
The next morning, Mr. Handler saw all of the things lying around the
dumpster and asked Ms. Handler: “How did this get here?”
PSAMF ¶ 13;
The Defendants deny all of the assertions of paragraph 11. DRPSAMF ¶ 11 (citing DSMF
Attach. 9 Morning of 8/14/05 (ECF No. 152) (undated) (E. Handler Written Statement). They point
out that Ms. Handler’s written statement describing the events of August 13 and 14, 2005
contradicts this assertion, and that she acknowledged in her deposition that she told police at the
time that the contents of her written statement were true. Id. (citing DSMF Attach. 2 Dep. of
Eleanor Handler (ECF No. 152) (Jan. 22, 2013) (Def.’s E. Handler Dep. Tr.)). Under some
circumstances, the Court is required to ignore an affidavit that contradicts earlier deposition
testimony. Colantuoni v. Alfred Calcagni & Sons, Inc., 44 F.3d 1, 4-5 (1st Cir. 1994). However, this
is not such a situation; the conflicting evidence here is a contemporaneous written statement to
police and a later deposition transcript. The Defendants do not argue that Eleanor Handler’s
affidavit contradicts her deposition transcript.
Record evidence supports the assertions of paragraph 11. Def.’s E. Handler Dep. Tr. at 42:646:2; Eleanor Handler Aff. at ¶ 5. Viewing this evidence in a light most favorable to the Handlers,
and drawing all reasonable inferences in their favor, a fact-finder could conclude that Ms. Handler’s
deposition testimony is true, and that her written statement to the police regarding the events of
August 13 and 14, 2005 was false. At the summary judgment stage, this is sufficient to support an
assertion of fact. Because the Defendants have not controverted the factual assertions of paragraph
11, the Court deems their denied response admitted under Local Rule 56(f), (g).
33
The Court deems the Defendants’ denied response admitted under Local Rule 56(f), (g). See
supra note 32.
32
16
DRPSAMF ¶ 13.34 Ms. Handler told him that she was in a rage. PSAMF ¶ 14;
DRPSAMF ¶ 14.35 She then ran out of the house, climbed into the dumpster, and
started throwing things out of the dumpster. PSAMF ¶ 14; DRPSAMF ¶ 14. The
gardener asked Ms. Handler what she was doing, and she told him to call the police.
PSAMF ¶ 15; DRPSAMF ¶ 15.
The voices in Ms. Handler’s head convinced her that staying at a mental
institution “was my fate.” PSAMF ¶ 16; DRPSAMF ¶ 16. She wanted Mr. Handler
arrested for putting her in the dumpster so that she did not have to go to a mental
institution again. PSAMF ¶ 17; DRPSAMF ¶ 17.36 The injuries she suffered the
night of the dumpster episode were self-inflicted. PSAMF ¶ 18; DRPSAMF ¶ 18.37
The night of the “dumpster incident,” Ms. Handler was “falling down drunk.”
PSAMF ¶ 19; DRPSAMF ¶ 19.
c.
The Contact Between Eleanor and Russell Handler
in February, 2006
In February 2006, Eleanor Handler was in a manic rage, drinking heavily,
and taking numerous drugs. PSAMF ¶ 1; DRPSAMF ¶ 1. Ms. Handler was also
delusional and paranoid. PSAMF ¶ 2; DRPSAMF ¶ 2. In her manic rage, she did
The Court
supra note 32.
35
The Court
supra note 32.
36
The Court
supra note 32.
37
The Court
supra note 32.
34
deems the Defendants’ denied response admitted under Local Rule 56(f), (g). See
deems the Defendants’ denied response admitted under Local Rule 56(f), (g). See
deems the Defendants’ denied response admitted under Local Rule 56(f), (g). See
deems the Defendants’ denied response admitted under Local Rule 56(f), (g). See
17
not recall what court orders existed at what times. See PSAMF ¶ 3; DRPSAMF ¶
3.38
In February, 2006, Ms. Handler drove her “former son,” D.H., to Russell
Handler’s mother’s house in New York. PSAMF ¶ 8; DRPSAMF ¶ 8. She intended
to put D.H. in a good school in New York. PSAMF ¶ 8; DRPSAMF ¶ 8. At that
time, Mr. Handler was staying at his mother’s house in New York. PSAMF ¶ 9;
DRPSAMF ¶ 9.
Around January or February 2006, Russell Handler was living with his
mother in King’s Point, New York. PSAMF ¶ 20; DRPSAMF ¶ 20. He had no
knowledge that Ms. Handler was coming to New York when she appeared at his
mother’s house around February or March 2006. PSAMF ¶ 21; DRPSAMF ¶ 21.
Mr. Handler believed that the protection order only prevented him from having
contact with Ms. Handler within the state of Maine. PSAMF ¶ 22; DRPSAMF ¶
22.39
The Handlers’ paragraph 3 reads: “Eleanor Handler was in a manic rage and that she did not
remember the orders that existed at what point in time.” PSAMF ¶ 3.
39
The Handlers claim that “Russell Handler understood that the protection order only
prevented him from having contact with Eleanor Handler within the State of Maine.” PSAMF ¶ 22
(citing Pl.’s Opp’n Attach. 7 Dep. of Russell Handler, at 65 (ECF No. 160) (Jan. 22, 2013) (Pl.’s R.
Handler Dep. Tr.) and Russell Handler Aff. at ¶ 2). The Defendants interpose a qualified response,
disclaiming any knowledge of what Mr. Handler subjectively believed. DRPSAMF ¶ 22. They also
point out that Mr. Handler admitted to receiving an Amended Order for Protection from Abuse that
prohibited him from having any contact with Ms. Handler with certain enumerated exceptions, none
of which involved the territory of the state of Maine. Id. (citing 2006 PFA and Stipulated Facts ¶¶ 78). The Court adjusted paragraph 22 to reflect that it represents Mr. Handler’s subjective belief.
The Court deems the Defendants’ qualified response to the modified assertion admitted under Local
Rule 56(f), (g).
38
18
The Handlers’ statement of additional material fact does not include a
paragraph 23. The Court does not credit the Handlers’ paragraph 24.40
d.
Mistreatment of Mr. Handler At the Waldo County
Jail
The Court does not credit the Handlers’ paragraph 33.41
Russell Handler needed to be fed with a feeding tube while at the Waldo
County Jail. PSASMF ¶ 34; DRPSAMF ¶ 34. Between July 14, 2006 and August
28, 2006, he “did not get fed most times” and was not given consistent access to his
syringes and tubes. PSAMF ¶ 34; DRPSAMF ¶ 34.42 Donald Leach, an expert
witness for the Defendants, documented in his deposition certain dates on which jail
records indicate that Mr. Handler was given food, Gatorade, water, and ice: 7/28,
8/1, 8/2, 8/10, 8/11, 8/14, 8/16, 8/17, 8/19, 8/20, 8/23, 8/24, 8/25, 8/26, 8/27, 8/28.
PSAMF ¶ 35; DRPSAMF ¶ 35.43 On the dates on which the Jail records show Mr.
In paragraph 24, the Handlers claim that “Bryant White arrested Russell Handler as a
result of Eleanor Handler’s delusions or hallucinations.” This is a conclusory statement, and for that
reason the Court need not credit it. Wynne, 976 F.2d at 796. It is also, as the Defendants point out,
unsupported by the record. DRPSAMF ¶ 24. Deputy Reed arrested Mr. Handler on August 14,
2005, Stip. ¶ 5, and the King’s Point, New York Police Department arrested Mr. Handler on March 4,
2006. Id. ¶ 10. Detective White did not at any time arrest Mr. Handler. Once a party agrees to a
stipulated fact, he may not contradict that fact in his own statement of facts.
41
In paragraph 33, the Handlers claim that “Russell Handler did not receive proper food and
nutrition at the Waldo County Jail between July 14, 2006 and August 28, 2006. PSAMF ¶ 33 (citing
Pl.’s R. Handler Dep. Tr. at 116:14-21). The assertion that Mr. Handler’s food and nutrition were not
“proper” is conclusory, and the Court does not credit it. Wynne, 976 F.2d at 796.
42
The Defendants interpose a qualified response, claiming that “Handler took some food
through the feeding tube, but he also ate soft foods through his mouth while incarcerated at the jail.”
DRPSAMF ¶ 34 (citing Fox Aff. at ¶ 3). The Court must resolve all factual disputes in favor of the
non-movant, and the Handlers’ version is supported by record evidence. Pl.’s R. Handler Dep. Tr. at
116:14-21. Because the Defendants have not shown record evidence that requires alteration of the
assertion of paragraph 34, the Court deems their qualified response admitted under Local Rule 56(f),
(g).
43
The Handlers’ version of paragraph 35 states: “Defendant’s expert, Mr. Leach, documented in
his deposition the dates the Jail records indicate that Russell Handler was given food/ Gatorade/
water/ice . . . .” PSAMF ¶ 35 (citing PSAMF Attach. 4 Dep. of Donald L. Leach, at 109:9-112:11 (ECF
40
19
Handler receiving food, water, and ice, those records sometimes only show this
happening once or twice a day. PSAMF ¶ 36; DRPSAMF ¶ 36.44
Mr. Handler requires 2,500 calories per day; each can of food he takes
contains about 375 calories. PSAMF ¶ 37; DRPSAMF ¶ 37. Mr. Handler tries to
feed himself around every two hours during the day. PSAMF ¶ 38; DRPSAMF ¶
38.45
From July 14 to July 19, 2006, Mr. Handler was placed in a cell above a
boiler room, which was hot.
PSAMF ¶ 39-40; DRPSAMF ¶ 39-40.46
The
temperature outside on July 14 was 91 degrees; on July 15, 85 degrees; on July 17,
87 degrees; on July 18, 93 degrees; and on July 19, 81 degrees. PSAMF ¶ 41;
DRPSAMF ¶ 41.
No. 160) (Apr. 18, 2013) (Pl.’s Leach Dep. Tr.)). The Defendants interpose a qualified response,
claiming that this list is not exhaustive of the dates on which Mr. Handler was given food and water.
It is not clear from Mr. Leach’s deposition testimony whether the list is exhaustive, and the Court
adjusted the assertion to account for this ambiguity. The Court deems the Defendants’ qualified
response to the modified assertion admitted under Local Rule 56(f), (g).
44
The Handlers’ version of paragraph 36 states: “On the dates there are records of Handler
receiving some food/ water/ice, sometimes this occurred only once or twice a day.” PSAMF ¶ 36. The
Defendants interpose a qualified response, similar to their qualification for paragraph 35. The Court
adjusted the wording of the assertion for the same reasons detailed above. See supra note 43.
45
The Handlers’ version of paragraph 38 simply states that “Mr. Handler tries to feed himself
around every two hours.” PSAMF ¶ 38. The Defendants interpose a qualified response, pointing out
that Mr. Handler testified that he does not follow this routine at night. DRPSAMF ¶ 38 (citing Pl.’s
R. Handler Dep. Tr. at 38). The Court adjusted the assertion to reflect this qualification, and deems
the Defendants’ qualified response to the modified assertion admitted under Local Rule 56(f), (g).
46
The Handlers’ version of paragraph 39 states that the cell was “extremely hot and
unbearable.” PSAMF ¶ 39 (citing Def.’s Reply Attach. 5 Dep. of Russell Handler, at 91:1-25 (ECF No.
169). The Defendants interpose a qualified response, submitting that Mr. Handler’s deposition
testimony only establishes that the cell was above a boiler, and that it was hot. DRPSAMF ¶ 39.
The Court adjusted the assertion of paragraph 39 to reflect this, and deems the Defendants’ qualified
response to the modified assertion admitted under Local Rule 56(f), (g).
20
Detective White was present in the room on at least one occasion when Mr.
Handler was being sodomized.
PSAMF ¶ 30; DRPSAMF ¶ 30.47
While being
sodomized, Mr. Handler was told to “plead, sign a piece of paper, and we’ll get you
right out of here.” PSAMF ¶ 31; DRPSAMF ¶ 31.48
e.
Mr. Handler’s 2006 Nolo Contendere Plea
On August 28, 2006, in the midst of a change of plea hearing before a state
court, Mr. Handler tried to fire his attorney; however, the presiding state judge told
him that he could not fire his attorney, and that he had to change his plea. PSAMF
¶ 25; DRPSAMF ¶ 25.49
Mr. Handler told the judge in open court that he was
The Defendants deny paragraph 30. DRPSAMF ¶ 30 (citing Def.’s White Dep. Tr. at 88:1-25).
However, Mr. Handler’s deposition testimony supports the assertion, Pl.’s R. Handler Dep. Tr. at
106:19-25, and the Court must resolve all factual disputes in favor of the non-movant. The Court
deems the Defendants’ denied response admitted under Local Rule 56(f), (g).
48
The Defendants deny paragraph 31. DRPSAMF ¶ 31 (citing Def.’s White Dep. Tr. at 39:1-25).
However, Mr. Handler’s deposition testimony supports the assertion, Pl.’s R. Handler Dep. Tr. at
100:4-7, and the Court must resolve all factual disputes in favor of the non-movant. The Court
deems the Defendants’ denied response admitted under Local Rule 56(f), (g).
49
The Handlers claim that “[o]n August 28, 2006, Russell Handler remember was [sic] coerced
into signing the documents to plea nolo contendre [sic] to violation of the protection order and
violation of conditions of release, among other crimes.” PSAMF ¶ 25. As written, this statement is
conclusory, and not creditable as a fact. Wynne, 976 F.2d at 796. The Court adjusted it to represent
the historical facts to which Mr. Handler actually testified in his deposition. Pl.’s Opp’n Attach. 7
Dep. of Russell Handler, at 84:17-21 (ECF No. 160) (Jan. 22, 2013) (Pl.’s R. Handler Dep. Tr.).
The Defendants deny the original assertion, citing to a transcript designated “Exhibit L” and
to the deposition of Bryant White. DRPSAMF ¶ 25. The Court is unable to locate an Exhibit L, nor
any exhibit matching the description “Transcript of Change of Plea and Sentencing.” Id. The
Defendants also direct the Court to page 39 of Bryant White’s deposition transcript, but that page
does not contain any testimony that addresses the assertion of paragraph 25. See Def.’s Reply
Attach. 3 Dep. of Bryant White, at 39 (ECF No. 169) (Feb. 5, 2013) (Def.’s White Dep. Tr.). At most,
Detective White denies that he told Mr. Handler that he could get out of jail if he pleaded guilty.
Page 39 does not disclose a date or the charge to which Detective White denies he told Mr. Handler
to plead guilty. See id. Other, adjacent pages from the deposition transcript are not in the summary
judgment record.
Record evidence supports the Court’s non-conclusory wording of paragraph 25, Pl.’s R.
Handler Dep. Tr. at 84:17-21. Because the Defendants have not properly controverted the assertion
of paragraph 25, the Court deems their denied response admitted under Local Rule 56(f), (g).
47
21
being coerced by his attorney to enter a plea. PSAMF ¶ 29; DRPSAMF ¶ 29.50 Mr.
Handler pleaded nolo contendere under protest because he was told by Detective
White and the Assistant District Attorney that if he did not plead to the charges
that he would be held in jail for another year. PSAMF ¶¶ 28, 32; DRPSAMF ¶¶ 28,
32.51
The Court does not credit the Handlers’ paragraph 26.52
III.
DISCUSSION
A.
Position of the Parties
1.
The Waldo County Defendants
The Waldo County Defendants argue that Detective White is entitled to
summary judgment on Count XIII whether Count XIII is construed to address the
2005 arrest or the 2006 arrest.
Defs.’ Mot. at 7.
As to the 2005 arrest, the
Defendants point out that the summary judgment record contains no assertion that
The Defendants deny paragraph 29, again citing to “Exhibit L.” Because this exhibit is not
before the Court, the denial fails. The assertion of paragraph 29 is supported by record evidence,
Pl.’s R. Handler Dep. Tr. at 89:11-15. The Court deems the Defendants’ denied response admitted
under Local Rule 56(f), (g).
51
The Defendants deny paragraph 28. DRPSAMF ¶ 28 (citing “Exhibit L” and Def.’s White
Dep. Tr. at 39). However, as noted above, Exhibit L is not in the summary judgment record. Supra
note 49. Although Detective White’s deposition testimony could be read to contradict the portion of
paragraph 28 that relates to him—assuming it refers to the same plea—the Court must resolve all
factual disputes in favor of the non-movant. A fact-finder viewing the evidence in a light most
favorable to the Handlers could credit Mr. Handler’s testimony and discount Detective White’s
testimony, concluding that Detective White did tell Mr. Handler that if he did not plea he would
spend another year in jail. As for the “woman by the name of Zianna or Zienna” to whom Mr.
Handler refers as participating in the conversation with Detective White, Pl.’s R. Handler Dep. Tr. at
87:24-25, the fact-finder could reasonably conclude that this was Assistant District Attorney Leane
Zainea. Def.’s White Dep. Tr. at 26:7-17. Because the Defendants have not controverted the
Handlers’ paragraph 28, the Court deems their denied response admitted under Local Rule 56(f), (g).
52
In paragraph 26, the Handlers claim that “Bryant White continuously ignored Russell
Handler’s statements regarding Eleanor Handler’s mental illness.” Id. at ¶ 26 (citing Russell
Handler Aff. at ¶ 5). This statement is conclusory and not based on Mr. Handler’s personal
knowledge. The Court does not credit it. FED. R. CIV. P. 56(c)(4); Wynne, 976 F.2d at 796.
50
22
Detective White was involved. Id. at 7-8. As to the 2006 arrest, they contend that
Detective White is entitled to qualified immunity. Id. at 8-9.
In support of their qualified immunity defense, the Waldo County Defendants
first argue that Mr. Handler’s 2006 arrest in New York did not violate any of his
constitutional rights.
Id. at 9-11.
This is so, they claim, because there was
sufficient probable cause to arrest Mr. Handler for having contact with Ms.
Handler. Id. at 10-11. Furthermore, they argue, Detective White did not make any
false statements in his affidavit in support of the arrest warrant, nor did he
intentionally or recklessly omit any exculpatory information. Id. at 11-12. The
Defendants also argue that even if the information sworn to by Detective White was
false, he did not violate any clearly established constitutional right because he
reasonably relied on information and documents he received from others in his
affidavit. Id. at 12. In a footnote, they suggest that Mr. Handler’s New York arrest
was valid, in part, because of 18 U.S.C. § 2265, “which gives full faith and credit to
protection orders issued by another state.” Id. at 11 n.6.
The Defendants next argue that Sheriff Story and Waldo County are also
entitled to summary judgment. First, they contend that neither Sheriff Story nor
Waldo County committed any constitutional violation with respect to Mr. Handler’s
2005 and 2006 arrests. Id. at 12-13. Second, they argue that there is no record
evidence of a widespread and pervasive custom or practice within Waldo County,
Third Am. Compl. ¶¶ 319-20, that would give rise to municipal liability. Defs.’ Mot.
at 13. Third, in response to the Handlers’ accusation that the County failed to
23
adequately train its employees, Third Am. Compl. ¶¶ 321-22, the Defendants argue
that “[t]here is no evidence of any prior claims of false arrest or malicious
prosecution by Waldo County officers, let alone evidence of a need for more or
different training.”
Defs.’ Mot. at 14-15.
Finally, the Defendants oppose the
Handlers’ claim for supervisory liability in Sheriff Story, Third Am. Compl. ¶¶ 32324, arguing that the record evidence supports none of the elements required for a
claim of “deliberate indifference.” Defs.’ Mot at 15. Specifically, they assert that
there is no evidence that a grave risk of harm actually existed; no evidence that
Sheriff Story was or should have been aware of such a risk; and no evidence that
any easily available measures were available to address a risk of which Sheriff
Story should have known. Id.
In the alternative, the Waldo County Defendants argue that the Handlers
should be barred from seeking damages for Mr. Handler’s incarceration. Id. at 1516. They first point out that Mr. Handler’s nolo contendere plea amounts to “‘a
statement of unwillingness to contest the government’s charges and an acceptance
of the punishment that would be meted out to a guilty person.’” Id. at 16 (quoting
Olsen v. Correiro, 189 F.3d 52, 59 (1st Cir. 1999)). They go on to argue that Olsen
bars Mr. Handler from seeking damages for his incarceration because it would
“‘undermine the finality of plea bargains,’” “‘jeopardize society’s interest in a system
of compromise resolution of criminal cases,’” and “‘lead to inconsistency and an
undermining of the criminal process.’” Id. (quoting Olsen, 189 F.3d at 69).
24
2.
The Handlers
The Handlers first claim that Detective White’s affidavit in support of the
2006 arrest warrant was constitutionally deficient because he represented to the
judge that Mr. Handler’s contact with Ms. Handler in New York violated the Maine
protection from abuse order. See Pl.’s Opp’n at 3. They argue that Maine’s statute
governing the territorial applicability of its criminal law, 17-A M.R.S. § 7(1)(A)
(1983), does not provide for criminal liability when a person who subject to a
protection from abuse order has contact with a forbidden person outside the borders
of the state. Id. at 6. Because it is undisputed that Detective White knew that Mr.
Handler’s contact with Ms. Handler occurred in the state of New York, they
conclude that his sworn affidavit amounts to a constitutional violation. See id.
The Handlers also oppose Detective White’s qualified immunity defense.
They renew their contention that Detective White’s affidavit in support of the arrest
warrant was a violation of Mr. Handler’s constitutional rights. Id. at 8. They next
argue that “the territorial applicability statute in Title 17-A Section 7 was clearly
established in 2006.” Id. at 8. Finally, they argue that a reasonable police officer
would have been aware that conduct in New York could not violate Mr. Handler’s
Maine protection from abuse order. See id. They argue that Detective White had
the burden to establish, in his affidavit in support of the search warrant, that the
conduct was within the territorial reach of Maine’s criminal law. See id.
The Handlers then return to the subject of Detective White’s allegedly
unconstitutional conduct, arguing that the conduct amounts to malicious
prosecution, which “may be actionable” under 42 U.S.C. § 1983. Id. at 9 (citing
25
Albright v. Oliver, 510 U.S. 266 (1994); Malley v. Briggs, 475 U.S. 335 (1986); and
Calero-Colon v. Betancourt-Lebron, 68 F.3d 8 (1995)). They view Landrigan v. City
of Warwick, 628 F.2d 736, 745 (1st Cir. 1980) as establishing the elements of a
“cause of action for malicious prosecution,” Pl.’s Opp’n at 9, and they argue that
Britton v. Maloney, 196 F.3d 24, 28-29 (1st Cir. 1999), established that “a plaintiff
seeking to bring a malicious prosecution claim under Section 1983 must do more
than simply satisfy the elements of the common law tort of malicious prosecution.”
Id. In their view, the plaintiff must “‘show a deprivation of liberty, pursuant to
legal process, that is consistent with the concept of a Fourth Amendment seizure.’”
Id. (quoting Harrington v. City of Nashua, 610 F.3d 24, 30 (1st Cir. 2010)).
The Handlers maintain that there was no probable cause for the 2006 arrest
because the allegedly wrongful conduct occurred in New York, not Maine. Id. at 910. They also contend that Detective White acted with “actual malice.” Id. at 9-11
(citing facts relating to Mr. Handler’s alleged mistreatment at the Waldo County
Jail and the alleged coercion of his 2006 guilty plea).
Finally, they urge that
Detective White made intentionally or recklessly false statements in his affidavit in
support of the warrant because “Detective White omitted the fact that all of the
alleged criminal conduct . . . did not even occur in the State of Maine.” Id. at 11.
Turning to Sheriff Story, the Handlers argue that he exhibited “deliberate
indifference” to Mr. Handler’s constitutional rights. Id. at 12. They contend that
there is a reasonable inference, based on Sheriff Story’s decision-making authority,
that Detective White “would need Story’s permission /authority to get the warrant
26
for arrest.” Id. at 13. They also argue that there is a “grave risk of harm” by not
“following Maine law on territorial applicability of alleged criminal conduct” and
“not following the policies and procedures for securing proper arrest warrants.” Id.
In their view, Sheriff Story could easily have reviewed the warrant application—of
which they infer he was aware based on his position as Sheriff—and rejected it
based on the alleged territorial infirmity. Id. They conclude that this establishes
supervisor liability in Sheriff Story. Id.
Finally, the Handlers argue that Olsen should not bar damages for “wrongful
incarceration.” Id. at 13-14. This is so, they maintain, because a nolo contendere
plea is different than a guilty plea; it is not, in their view, “an express admission of
guilt by the pleader.” Id. at 14.
The Handlers do not address the Defendants’ arguments regarding the lack
of any widespread or pervasive custom or practice, or failure to train. See id. at 114.
3.
The Waldo County Defendants’ Reply
The Waldo County Defendants rebut the Handlers’ argument that a Maine
protection from abuse order could not legally give rise to Maine criminal liability for
conduct committed in New York. Def.’s Reply at 3-8. They quote the text of the
statute itself:
“[A] person may be convicted under the laws of this State for any crime
committed by the person's own conduct or by the conduct of another for
which the person is legally accountable only if . . . A. Either the
conduct that is an element of the crime or the result that is such an
element occurs within this State or has a territorial relationship to this
State . . . .”
27
Id. at 3-4 (quoting 17-A M.R.S. § 7(1)). They argue that the New York conduct has a
“territorial relationship” to the state of Maine because it amounts to a violation of a
Maine court order. Id. at 4 (citing State v. Stewart, 706 A.2d 171, 172 (N.H. 1998);
Pennington v. State, 521 A.2d 1216 (Md. 1987); and Farmers’ State Bank v. State, 13
Okla Crim. 283, 284-85 (Okla. Crim. App. 1917)). They further contend that “the
law does not allow [Mr. Handler] to circumvent jurisdiction in Maine by committing
these acts [violating Maine court orders] in another state.” Id. at 5.
The Defendants also dispute that Detective White “‘acted in reckless
disregard, with a high degree of awareness of the probable falsity of the statements
made in support of the arrest warrant,’” or committed “‘the intentional or reckless
omission of material exculpatory facts from the information presented to the
magistrate.’” Id. at 6 (quoting Burke v. Town of Walpole, 405 F.3d 66, 81 (1st Cir.
2005)). They point out that, contrary to the Handlers’ claims, Detective White made
it clear in the affidavit that all of the allegedly wrongful actions took place in New
York. Id. (citing DSMF Attach. 15 Aff. in Support of Arrest Warrant (ECF No. 152)
(March 3, 2006)).
As a fallback, the Defendants argue that, even if the affidavit represented an
unconstitutional misrepresentation to the magistrate, Detective White is entitled to
qualified immunity because there was no case law that would have alerted him to
the fact that he was violating Mr. Handler’s constitutional rights. Id. at 8.
The Defendants argue that the Handlers waive any claim to municipal
liability because they declined to address the Defendants’ arguments on this point
28
in their opposition to the Motion. Id. at 8-9 (citing Grenier v. Cyanamid Plastics,
Inc., 70 F.3d 667, 678 (1st Cir. 1995) and Dykstra v. First Student, Inc., 324 F. Supp.
2d 54, 68-69 (D. Me. 2004)).
As to Sheriff Story, the Defendants limit their reply to disputing that Sheriff
Story’s decision-making authority generates a reasonable inference that he was
aware of Detective White’s warrant application before it was submitted. Id. at 9.
Finally, the Defendants claim that the Handlers have waived any argument
that Mr. Handler should be able to recover damages for harm from his
incarceration. Id. at 10 (citing Pl.’s Opp’n at 2 and Schneider v. Local 103 I.B.E.W.
Health Plan, 442 F.3d 1, 3 (1st Cir. 2006)).
B.
Analysis
Count XIII recites both “unlawful arrest” and “malicious prosecution” as
grounds for the action under 42 U.S.C. § 1983. Third Am. Compl. at 54. However,
in opposing this Motion for Summary Judgment, the Handlers only argued that Mr.
Handler was the subject of malicious prosecution, not of a false or unlawful arrest.
See Pl.’s Opp’n.53 The Defendants agree that malicious prosecution is the proper
theory, Defs.’ Mot. at 9, so the Court deems any argument as to false arrest waived.
The Handlers devote considerable briefing in Section I of their Opposition to reciting facts
from the record, concluding that “Russell Handler’s constitutional rights were violated.” Pl.’s Opp’n
at 2-6. The Handlers do not supply any argument or case law in Section I identifying a theory of
constitutional liability. Section II, applying a qualified immunity analysis, states that “Section I of
this argument detailed how Detective White violated Russell Handler’s constitutional right,” but is
similarly oblique as to the nature of that right. Id. at 8. Section III identifies malicious prosecution
as a theory of liability, so the Court assumes from the context that Section I and Section II claim a
constitutional right grounded in malicious prosecution.
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The First Circuit has, for three decades, pointedly refused to hold that
malicious prosecution gives rise to a cause of action under 42 U.S.C. § 1983.
Harrington, 610 F.3d at 30; Britton, 196 F.3d at 28; Roche v. John Hancock Mut.
Life Ins. Co., 81 F.3d 249, 256 (1st Cir. 1996); Landrigan, 628 F.2d at 745-46.54 In
Britton, the First Circuit observed that “[e]very circuit to have considered the
question since Albright [v. Oliver, 510 U.S. 266 (1994)] has expressed general
agreement with the view that state actors who pursue malicious prosecutions
against others may be held to have violated the Fourth Amendment, thereby risking
the imposition of liability under 42 U.S.C. § 1983.” Britton, 196 F.3d at 28. Thus,
in Britton and other cases, the First Circuit has “assume[d], without deciding, ‘that
malicious prosecution can embody a Fourth Amendment violation and, thus, ground
a cause of action under § 1983.’” Moreno-Medina v. Toledo, 458 Fed. App’x 4, 7 (1st
Cir. 2012) (unreported) (quoting Harrington, 610 F.3d at 30)). Nevertheless, when
confronted with the question, the First Circuit has consistently disposed of cases by
concluding that plaintiffs failed to meet the requirements of common law malicious
prosecution as it might become actionable under § 1983. E.g., Moreno-Medina, 458
Fed. App’x at 7-8.
Following that guidance, this Court assumes, without deciding, that the
particular brand of malicious prosecution enunciated in Britton, 196 F.3d at 28-30,
creates a viable constitutional claim under 42 U.S.C. § 1983. The Court further
assumes that Calero-Colon supplies the elements of malicious prosecution, with the
The First Circuit decided Landrigan v. City of Warwick on August 27, 1980.
628 F.2d at 736.
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Landrigan,
additional “deprivation of liberty” requirement of Britton.
Id. at 29 (“[T]he
constitutional violation lies in the ‘deprivation of liberty accompanying the
prosecution’ rather than in the prosecution itself”). In sum, to succeed on their §
1983 claim under a malicious prosecution theory, the Handlers would have to prove
“(1) the commencement or continuation of a criminal proceeding by the defendant
against the plaintiff; (2) the termination of the proceeding in favor of the accused;
(3) the absence of probable cause for the criminal proceeding; . . . (4) actual malice,”
Calero-Colon, 68 F.3d at 3 n.5, and (5) that the wrongful proceedings amounted to a
“seizure” within the meaning of the Fourth Amendment, Britton, 196 F.3d at 28-30.
The parties both argue that the viability of Mr. Handler’s malicious
prosecution claim turns on the propriety of Detective White’s sworn statement that
Mr. Handler’s New York conduct violated the Maine protection from abuse order.
Defs.’ Mot. at 9-12; Pl.’s Opp’n at 8-12; Def.’s Reply at 3-8. The Handlers are of the
opinion that it was constitutionally infirm for Detective White to assert to the judge
that Mr. Handler’s conduct outside the state of Maine could violate the Maine court
order; the Defendants view this as perfectly proper. This disagreement, in turn,
narrows to the parties’ differing interpretations of 17-A M.R.S. § 7(1)(A), which
requires that the “conduct that is an element of the crime or the result that is such
an element occurs within this State or has a territorial relationship to this State.”
In the Handlers’ view, a Maine protection from abuse order could never give rise to
criminal liability for contact occurring outside of Maine’s borders. Pl.’s Opp’n at 6,
11-12.
In the Defendants’ view, the New York conduct had a “territorial
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relationship” to the state of Maine within the meaning of section 7(1)(A). Def.’s
Reply at 3-8. However, neither side cites a Maine decision in support of its position;
the Handlers cite no case law at all, while the Defendants offer only analogous cases
from New Hampshire, Maryland, and Oklahoma. The Court is likewise unable to
locate a decision of any Maine court applying section 7(1)(A) to out-of-state conduct
allegedly violating a Maine court order.55
Fortunately, a determination about the geographic reach of the statute is
unnecessary.
The Handlers’ malicious prosecution claim fails for the entirely
independent reason that Mr. Handler’s undisputed nolo contendere plea, DSMF ¶¶
25-26, demonstrates that the allegedly wrongful proceeding was not “terminat[ed] . .
. in favor of the accused” as required by Calero-Colon. 68 F.3d at 3 n.5.
The alleged malfeasance surrounding Mr. Handler’s nolo contendere plea—
deliberate starvation, torture by forcible sodomy, and judicial railroading at the
change of plea hearing—would of course be deeply troubling, if true. However, the
legal question is not whether the conviction was procedurally or substantively
correct, but whether the proceedings were terminated in Mr. Handler’s favor. This
civil action for damages is not an appropriate vehicle for challenging the validity of
a state criminal conviction. Heck v. Humphrey, 512 U.S. 477, 484-87 (1994). The
In State v. Branch-Wear, 1997 ME 110, ¶ 14 n.4, 695 A.2d 1169, the Maine Supreme Judicial
Court suggested that the act of removing a witness from Maine to another state and taking
“affirmative steps to prevent her from testifying” at another trial bore sufficient territorial nexus to
the state to support jurisdiction under section 7(1)(A). Interfering with a witness is partially
analogous to violating a court order in that it directly interferes with the proper operation of justice
in the courts. However, Branch-Wear has an obvious factual difference from this case: in BranchWear, at least some of the wrongful conduct occurred in Maine. Thus, while Branch-Wear is
suggestive, it is not close enough to these facts to provide definitive guidance.
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Court may not disturb the result in the state court unless Mr. Handler proves “that
the conviction or sentence has been reversed on direct appeal, expunged by
executive order, declared invalid by a state tribunal authorized to make such
determination, or called into question by a federal court's issuance of a writ of
habeas corpus.”
Id. at 487.
The Handlers have not shown that any of these
conditions exist with respect to his nolo contendere plea, and the Court concludes
that any possible action under § 1983, grounded in malicious prosecution, must fail.
This conclusion disposes of the other Defendants as well.
Without an
underlying constitutional violation, Sheriff Story, Waldo County, and the Waldo
County Sheriff’s Department cannot be vicariously liable. The undisputed facts in
the summary judgment record demonstrate that all Defendants are entitled to
judgment as a matter of law on Count XIII.
IV.
CONCLUSION
The Court GRANTS the Defendants’ Motion for Partial Summary Judgment
(ECF No. 153) as to Count XIII.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
CHIEF UNITED STATES DISTRICT JUDGE
Dated this 30th day of December, 2013
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