EDSON v. LEPAGE et al
ORDER granting in part and dismissing in part 65 Motion to Dismiss. By JUDGE JOHN A. WOODCOCK, JR. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
CENTER, et al.,
ORDER ON DEFENDANT MARY MAYHEW’S MOTION TO DISMISS
INDIVIDUAL CAPACITY CLAIMS
This case arises out of an incident that took place on December 2, 2013, in
which staff at Riverview Psychiatric Center allegedly pepper sprayed, restrained,
secluded, and failed to treat a patient without good cause. The patient filed a lawsuit
against a number of state of Maine defendants in both their official and individual
capacities. Mary Mayhew, the Commissioner of the Maine Department of Health and
Human Services, moves to dismiss all individual capacity claims brought against her.
The Court grants the motion to dismiss with respect to the constitutional claims
pursuant to 42 U.S.C. § 1983 because the Plaintiff failed to plead sufficient facts to
demonstrate that the Commissioner herself violated the patient’s rights or acted or
failed to act with deliberate indifference to them. The Court dismisses without
prejudice the motion to dismiss the negligent supervision claim under Maine law
because this aspect of the motion has not been thoroughly briefed and the Court is
not sufficiently confident about the status of the tort in Maine to grant or deny the
motion to dismiss.
On December 1, 2015, Arlene Edson filed a complaint in Kennebec County
Superior Court for the state of Maine against Riverview Psychiatric Center
(Riverview) and a number of other state of Maine entities and individuals, including
Mary Mayhew, Commissioner of the Maine Department of Health and Human
Services (MDHHS), in her official and individual capacities. Aff. of John J. Wall, III
Attach. 3 Compl. (ECF No. 7). On February 10, 2016, Jamie Meader, a named
Defendant, removed the case to this Court. Notice of Removal (ECF No. 1). On June
22, 2016, Commissioner Mayhew moved to dismiss the Complaint insofar as it made
allegations against her in her individual capacity.
Def. Mary Mayhew’s Mot. to
Dismiss Individual Capacity Claims (ECF No. 65) (Def.’s Mot.). On July 12, 2016,
Ms. Edson filed her opposition to the motion to dismiss. Pl.’s Opp’n to Def. Mary
Mayhew’s Mot. to Dismiss Individual Capacity Claims (ECF No. 71) (Pl.’s Opp’n). On
July 26, 2016, Commissioner Mayhew filed a reply. Def. Mary Mayhew’s Reply in
Supp. of Mot. to Dismiss Individual Capacity Claims (ECF No. 73) (Def.’s Reply).1
On May 16, 2016, the Magistrate Judge recommended that the Court grant the Plaintiff’s
motion to amend her Complaint, Recommended Decision on Pl.’s Mot. to Amend and Defs.’ Mots. to
Dismiss at 4 (ECF No. 52), and on June 8, 2016, the Court affirmed the recommendation. Order
Affirming the Recommended Decision of the Magistrate Judge (ECF No. 57). On June 8, 2016, the
Plaintiff filed her first amended complaint. First Am. Compl. (ECF No. 60). On August 5, 2016, after
all the memoranda on Commissioner Mayhew’s motion to dismiss had been filed, the Plaintiff filed a
motion for leave to amend the complaint a second time. Consent Mot. for Leave to File Second Am.
Compl. (ECF No. 74). The purpose of the motion was to correct “the following scrivener’s errors:
renumbering the counts; and to remove Defendants Mary Mayhew and Mary L. McEwen from
paragraph 120 of the amended complaint.” Id. at 1. The Court granted the consented-to motion to
amend the complaint on August 5, 2016. Order (ECF No. 75).
THE ALLEGATIONS IN THE SECOND AMENDED COMPLAINT2
Arlene Edson has been a patient at Riverview since 2011. Second Am. Compl.
She has profoundly serious psychiatric illnesses and was involuntarily
committed to Riverview after being found Not Criminally Responsible on arson and
assault charges. Id. ¶¶ 1, 19. On December 2, 2013, Ms. Edson was pepper sprayed
by Riverview employees, restrained in five-point restraints, and kept isolated for
hours before anyone responded to her pleas for help. Id. ¶ 1. During all times
relevant to this civil action, including December 2, 2013, Mary Mayhew was the
Commissioner and policymaker for MDHHS. Id. ¶¶ 5, 26.
In Count VII of the First Amended Complaint, Ms. Edson alleged in paragraph 120:
“Defendants Mayhew, McEwen, Lord, Lavigne and Taylor acted recklessly and/or with callous
indifference to Ms. Edson’s substantive due process rights by subjecting her to unnecessary violence,
isolating her from other patients, denying her medical attention, and by concealing the abuse Ms.
Edson was subjected to.” First Am. Compl. ¶ 120. Paragraph 120 in Count VII of the Second Amended
Complaint now reads the same way, except it eliminates any reference to Defendants Mayhew and
McEwen. Second Am. Compl. ¶ 120.
In her motion to dismiss, Ms. Mayhew anticipated the fact that paragraph 120 as it appeared
in the First Amended Complaint was an error. Def.’s Mot. at 4 n.3. She did not therefore argue that
Count VII should be dismissed. As the later amendment of the Complaint does not affect the substance
of the pending motion to dismiss, the Court considers the Second Amended Complaint the operative
complaint for purposes of the motion.
Consistent with First Circuit authority, the Court accepts as true the well-pleaded allegations
in the Second Amended Complaint and draws all reasonable inferences in the pleader’s favor for
purposes of the motion only. Román-Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 45 (1st Cir. 2011).
The Court may supplement such “facts and inferences with data points gleaned from documents
incorporated by reference into the complaint, matters of public record, and facts susceptible to judicial
notice.” Guadalupe-Báez v. Pesquera, 819 F.3d 509, 514 (1st Cir. 2016) (quoting Haley v. City of Boston,
657 F.3d 39, 46 (1st Cir. 2011)).
The Court has recited only those facts relevant to Ms. Edson’s claims against Mary Mayhew
based on her individual liability because Commissioner Mayhew has not requested dismissal of the
official capacity claims. Def.’s Mot. at 4 n.2.
MDHHS is a state agency responsible for overseeing Riverview. Id. ¶ 14.
Riverview is a state-operated forensic hospital located in Augusta, Maine that
provides psychiatric services to the corrections and judicial systems, including care
for those committed under Maine statutes for observation and evaluation, persons
found not criminally responsible, and for those found incompetent to stand trial. Id.
Since 1990, Riverview has been operating under a Consent Decree and
incorporated Settlement Agreement. Id. ¶ 16. According to the Consent Decree,
Riverview3 failed to meet constitutional, statutory, and regulatory standards which
deprived patients of fundamental rights, including freedom from restraint and
freedom from abuse. Id. ¶ 17. The Consent Decree is a contract between MDHHS
and class members, which includes all patients admitted to Riverview on or after
January 1, 1988; Ms. Edson is a member of this protected class. Id. ¶ 18.
Riverview is a Medicaid and/or Medicare participating hospital that has
accepted federal funds. Id. ¶ 20. Following two highly publicized incidents of client
abuse and subsequent investigation, the United States Centers for Medicaid and
Medicare Services (CMS) found that Riverview violated constitutional, statutory, and
regulatory standards. Id. ¶ 21. As a result of Riverview’s multiple violations, it was
decertified by CMS on or about September 2, 2013 for failing to comply substantially
with Title XVIII of the Social Security Act and implementing regulations of the
Technically, the Consent Decree involved Augusta Mental Health Institute (AMHI), but after
entering into the Consent Decree, AMHI changed its name to Riverview. Except as otherwise required,
the Court has used Riverview to refer to the state-operated mental health institution in Augusta before
and after the name change.
Secretary of Health and Human Services specified at 42 C.F.R. Part 482, Conditions
of Participations for Hospitals. Id. ¶ 22. For approximately two years, Riverview
operated without court supervision under the Consent Decree until about October 25,
2013, when State Superior Court supervision was reinstated. Id. ¶ 23.
The December 2, 2013 Incident
A special relationship existed between Arlene Edson and Riverview because
the law required her to be in Riverview’s physical custody. Id. ¶ 24. As a result of
the special relationship, Mary Mayhew had a duty to control the conduct of parties to
prevent them from harming Ms. Edson. Id. ¶ 25. On December 2, 2013, Ms. Edson
was a forensic patient at Riverview, housed in the Lower Saco Unit, which Riverview
used to house forensic patients. Id. ¶¶ 28–29.
During the evening of December 2, 2013, William Lord, Jr. was the Registered
Nurse and the Nurse on Duty in the Lower Saco Unit. Id. ¶ 30. During that evening,
Kelly Lavigne and Carlos Taylor, III were working as corrections officers (COs) in the
Lower Saco Unit under contract between Riverview and/or MDHHS and the Maine
Department of Corrections. Id. ¶ 31. Corrections Officers Lavigne and Taylor wore
video camera recording devices while on duty at Riverview that evening. Id. ¶ 32.
Riverview also had surveillance video cameras, which recorded the hall and nurses’
station in the Lower Saco Unit. Id. ¶ 33.
On December 2, 2013 at approximately 8:15 p.m., Ms. Edson left a bathroom
and walked into a conference room. Id. ¶ 34. When she walked into the conference
room, Ms. Edson was followed by a corrections officer but no clinical staff. Id. ¶ 35.
Ms. Edson asked to be left alone, but the corrections officer confronted her about a
comment she had made earlier in the evening. Id. ¶ 36. Ms. Edson left the conference
room and began to undress as she walked back to her room. Id. ¶ 37. Nurse Lord
said to Ms. Edson: “I’ll go with a three-strike rule basically, if we gotta do that.” Id.
¶ 38. After that, Ms. Edson put her clothing outside the door leading to the hallway.
Id. ¶ 39. Nurse Lord and three other Riverview employees saw Ms. Edson put her
clothes in the hallway. Id. ¶ 40. A corrections officer picked up Ms. Edson’s clothing
and placed it in the doorway of her room, after which Ms. Edson kicked her clothes
back into the hallway. Id. ¶ 41. Out of view of Riverview’s surveillance cameras, a
corrections officer picked up Ms. Edson’s clothes and removed them from the hallway.
Id. ¶ 42.
On December 2, 2013 at approximately 8:58 p.m., Ms. Edson was standing
naked in her room with her back against a wall, shoulders hunched forward,
displaying no signs of assaultive, violent or aggressive behavior. Id. ¶ 43. Without
provocation, Corrections Officer Lavigne sprayed Ms. Edson with pepper spray,
causing her to cough, spit, choke and double over in pain. Id. ¶ 44. Corrections Officer
Taylor asked Nurse Lord: “Do you want [Ms. Edson] cuffed?” Id. ¶ 45. After Nurse
Lord said “yes,” Corrections Officer Taylor handcuffed Ms. Edson while she was on
the floor, even though she was not assaultive, violent or aggressive. Id. ¶ 46.
Ms. Edson told Corrections Officers Lavigne and Taylor that she could not
breathe and asked for a shower to remove the pepper spray, but her requests were
ignored. Id. ¶ 47. Ms. Edson was wrapped in a sheet, taken to another room, placed
on her back, and placed in five-point restraints. Id. ¶ 48. Ms. Edson told those
present that the pepper spray was running down her nose and once again begged for
a shower to remove the pepper spray. Id. ¶ 49. While Ms. Edson was begging for a
shower, a male Riverview staff member could be heard on the recording coughing
from the pepper spray used against Ms. Edson. Id. ¶ 50. A video recording shows
that at 9:04 p.m., Ms. Edson continued to beg for a shower and asked for someone to
speak with the nurse. Id. ¶ 51. The video recording shows a mental health worker
wiping his or her face off with a wash cloth in an effort to remove the pepper spray
affecting him or her. Id. ¶ 52.
On December 2, 2013, Nurse Lord talked on the telephone and stood at the
nurses’ station for approximately fifteen minutes after Ms. Edson was pepper
sprayed. Id. ¶ 53. Ms. Edson continued to cough, beg and whimper from the effects
of the pepper spray and was denied a blanket and the water she asked for. Id. ¶ 54.
A Riverview video recording shows Ms. Edson was still restrained at 9:18 p.m., while
she continued to ask for a nurse. Id. ¶ 55. Ms. Edson told a Riverview nurse on duty
that her side was burning, and in response, Staff said: “If it was burning that bad,
you would know what to do to get out of here, but you aren’t,” after which they left
her still in restraints with the corrections officers.
Id. ¶¶ 56–57.
surveillance video shows that Ms. Edson was passive and cooperative throughout
these events. Id. ¶ 58.
Ms. Edson was not seen by a nurse until 11:30 p.m., almost three hours after
she was pepper sprayed.
Id. ¶ 59.
The nurse who saw Ms. Edson discussed
“boundaries” with her, after which she released her from the restraints and allowed
her to take a shower. Id. ¶ 60. Ms. Edson suffered extreme physical and mental pain
and humiliation by being pepper sprayed and restrained without cause or provocation
while Riverview staff and corrections officers ignored her pleas for help. Id. ¶ 61.
Riverview Policies and Arlene Edson
Riverview’s policy on the use of restraints stated that physical “[r]estraint will
be used only when there exists an imminent risk of danger to the individual or others
and no other safe and effective intervention is possible.” Id. ¶ 62. Riverview policy
defined “imminent threat” as “making verbal threats to harm, posturing to physically
harm, brandishing an item that could be used as a weapon, concealing a weapon that
they are refusing to surrender, taking a hostage, holding an item to themselves and
threatening to harm themselves or others, or attempting to escape.” Id. ¶ 63. Ms.
Edson’s behavior during the events of December 2, 2013 did not satisfy the definition
of “imminent threat” under Riverview policy. Id. ¶ 64.
Riverview’s policy on the use of restraints also stated: “Law enforcement
restraints will never be used for the purposes of discipline, coercion, active treatment,
staff convenience or as a replacement for adequate levels of staff.” Id. ¶ 65. Riverview
policy defined abuse as “the infliction of injury, unreasonable confinement,
intimidation or cruel punishment that causes, or is likely to cause, physical harm or
pain or mental anguish, sexual abuse or sexual exploitation.”4 Id. ¶ 66. In accordance
Paragraph sixty-six reads: “Riverview’s policies mandated that allegations of patient
mistreatment, including abuse, neglect, or exploitation, and defined abuse as ‘the infliction of injury,
unreasonable confinement, intimidation or cruel punishment that causes, or is likely to cause, physical
with Riverview’s policies, staff was responsible for taking “action to protect clients
from abuse” and to immediately “report abuse . . . which they have witnessed or
have knowledge of.” Id. ¶ 67. On December 2, 2013, Riverview’s Documentation
Standards and Requirements’ Protocol and Procedure stated: “Accurate, detailed
documentation shows the extent and quality of care provided, the outcome of that
care and the treatment and education that the client still needs.” Id. ¶ 68.
The Defendants actively concealed the abuse inflicted on Ms. Edson by
Riverview staff and corrections personnel.5 Id. ¶ 69. The Defendants failed to follow
the law, policies, guidelines, protocols and terms of the Consent Decree in regard to
the events leading to the abuse inflicted on Ms. Edson. Id. ¶ 70. The Defendants
filled out false and misleading paperwork and reports about what happened to Ms.
Edson. Id. ¶ 71. A December 2, 2013 nursing note falsely stated that Ms. Edson was
“unable to deescalate with multiple attempts . . . began banging head and kicking,
[Corrections Officers] intervened as client was kicking holes and
picking shards of wall, warned client several times.” Id. ¶ 72. In fact, Ms. Edson did
not bang her head, kick or hit the walls, display any threatening behavior, or put a
hole in the wall of her room during the incident. Id. ¶ 73.
harm or pain or mental anguish, sexual abuse or sexual exploitation.’” Second Am. Compl. ¶ 66. The
first part of this paragraph is garbled and the Court has not included it.
By including these factual allegations regarding the concealment of the true facts of this
incident, the Court does not treat them as made against Mary Mayhew. Second Am. Compl. ¶¶ 67–
84. Even taking the allegations in the Second Amended Complaint as true, the Court knows of no
basis for Ms. Edson to claim that Ms. Mayhew personally knew about this incident on or about the
time it occurred or that she was directly involved in any way with the alleged cover-up. In fact, Ms.
Edson’s counts against Ms. Mayhew do not include any theory of her direct, contemporaneous
involvement in this event. The Court included the allegations to provide the context for Ms. Edson’s
improper supervision claims against Ms. Mayhew. See id. Counts IV, V, VI, IX, and XII.
On December 2, 2013, Julia Wise, PA-C, filled out a Medical Staff Restraint
and SRC Progress Note which stated Ms. Edson “was maced, put back in restraints,
see CO/Nursing notes for more details” at 9:00 p.m. and never mentioned the use of
pepper spray against Ms. Edson.6 Id. ¶ 74. Riverview Psychiatric Center Incident
Report #5255 dated December 2, 2013 and signed by Nurse Lord at 9:00 p.m. stated:
“Client cont’d banging, kicking, property destruction despite several attempts to
redirect and deescalate verbally . . . CO’s Lavigne/Taylor intervened, gave the client
several warnings to gain control of behavior . . . Client sprayed by CO-behavior ceased
immediately-staff/patient [without] injury.” Id. ¶ 75.
Riverview’s “Seclusion and Restraint Events Policy” stated: “Seclusion and
restraints are considered emergency measures or interventions of last resort to
protect clients in imminent danger of harming him/herself or others . . . seclusion and
restraint will be used only when there exists an imminent risk of danger to the
individual or others and no other safe and effective intervention is possible.” Id. ¶
76. Ms. Edson was pepper sprayed and placed in five-point restraints, even though
she was not in imminent danger of harming herself or others. Id. ¶ 77.
Riverview’s “Seclusion and Restraint Events Policy” required a physician,
physician’s assistant, or nurse practitioner to evaluate the client within thirty
minutes of the initiation of restraint and to document the findings of the evaluation
Again, the Court is required to accept the well-pleaded allegations in a complaint as true for
purposes of a motion to dismiss. The Court has qualms about this allegation. In her December 2, 2013
note, Physicians’ Assistant (PA) Wise expressly mentions that Ms. Edson was maced. Second Am.
Compl. ¶ 74 (“Ms. Edson ‘was maced’”). To allege that PA Wise did not mention pepper spray is
technically true, but it assumes that mace is not equivalent to pepper spray in this context, that PA
Wise would have known the difference between mace and pepper spray, and that she would have
known specifically which of the two self-defense products was actually used.
in a progress note. Id. ¶ 78. Riverview had no documentation showing that Ms.
Edson was given a physical examination after she was pepper sprayed. Id. ¶ 79.
Even though Maine law required Riverview staff and corrections personnel to
immediately report Ms. Edson’s abuse to MDHHS, her abuse was not reported to
Maine’s Adult protective services until February 27, 2014. Id. ¶ 80.
Between February 27, 2014 and March 10, 2014, Thomas Woodman, RN, HSC
II and Alelia Hilt-Lash, RN, BSN, MBA, HSS conducted an investigation at
Riverview, #ME00015398. Id. ¶ 81. Investigation #ME00015398 substantiated the
complaint for abuse and inappropriate use of restraints on Ms. Edson. Id. ¶ 82.
THE COUNTS AGAINST MARY MAYHEW
The Second Amended Complaint contains sixteen counts; Ms. Edson directs six
against Ms. Mayhew: (1) Count IV—failure to train pursuant to 42 U.S.C. § 1983; (2)
Count V—supervisory liability pursuant to 42 U.S.C. § 1983; (3) Count VI—custom,
practice and policy liability pursuant to 42 U.S.C. § 1983; (4) Count VIII—Americans
with Disabilities Act (ADA) pursuant to 42 U.S.C. § 12132; (5) Count IX—equal
protection pursuant to 42 U.S.C. § 1983; and (6) Count XII—negligent supervision
under Maine state law. Second Am. Compl. at 1–26. Ms. Edson’s Second Amended
Complaint specifies that she is bringing Count VIII, the ADA claim, against
Commissioner Mayhew only in her official capacity. Id. at 18 (“Riverview Psychiatric
Center, Mayhew & McEwen in their Official Capacities”). Therefore, the pending
motion does not reach Count VIII. The remaining five Counts against Ms. Mayhew,
all of which make claims against her in her individual capacity, may be broadly
categorized into two theories: constitutional rights claims and a state tort claim.7
THE PARTIES’ POSITIONS
Mary Mayhew’s Motion
In her motion to dismiss, Mary Mayhew moves for the dismissal of the Counts
against her only to the extent those Counts assert claims against her in her
individual, not official capacity. Def.’s Mot. at 1. Regarding the constitutional rights
claims, Ms. Mayhew points out that a supervisor may not be held responsible under
§ 1983 based solely on her position of authority and instead the law requires that the
plaintiff allege some individual misconduct on the part of the supervisor to violate
the plaintiff’s constitutional rights. Id. at 5–6. Citing First Circuit law, Ms. Mayhew
says that a supervisor may be liable under § 1983 if she is the “primary violator or
direct participant in the right-violating incident” or if she “supervises, trains, or hires
a subordinate with deliberate indifference toward the possibility that deficient
performance of the task eventually may contribute to a civil rights deprivation.” Id.
at 6 (quoting Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st Cir. 2009) (quoting
Camilo-Robles v. Zapata, 175 F.3d 41, 43–44 (1st Cir. 1999))). Ms. Mayhew quotes
the First Circuit’s three-part test for the deliberate indifference inquiry: “(1) ‘that the
officials had knowledge of facts,’ from which (2) ‘the official[s] can draw the inference’
The Second Amended Complaint does not state whether Ms. Edson is bringing suit against
Commissioner Mayhew on both an official and individual basis. Second Am. Compl. But Ms. Edson’s
response clarifies that Counts IV, V, VI, IX, and XII in the First Amended Complaint, which are the
same counts in the Second Amended Complaint, are being brought against Commissioner Mayhew in
her official and individual capacities. Pl.’s Opp’n at 2.
(3) ‘that a substantial risk of serious harm exists.’” Id. at 6 (quoting Ramírez-Lluveras
v. Rivera-Merced, 759 F.3d 10, 20 (1st Cir. 2014) (quoting Ruiz-Rosa v. Rullán, 485
F.3d 150, 157 (1st Cir. 2007))). She says that the plaintiff must also demonstrate that
there is a “strong causal connection between the supervisor’s conduct and the
constitutional violation,” id. (quoting Ramírez-Lluveras, 759 F.3d at 19), and that the
supervisor’s conduct “led inexorably to the constitutional violation.”
Id. at 6–7
(quoting Ramírez-Lluveras, 759 F.3d at 19–20 (emphasis added) (quoting Hegarty v.
Somerset Cty., 53 F.3d 1367, 1380 (1st Cir. 1995))). Finally, she notes that the
“supervisor must have notice of the unconstitutional condition said to lead to the
claim.” Id. at 7 (quoting Ramírez-Lluveras, 759 F.3d at 20).
Applying these standards, Ms. Mayhew sees three potential bases in the
Second Amended Complaint for liability: (1) that she was involved in the decision to
place correctional officers at Riverview; (2) that she failed to properly train Riverview
staff; and (3) that she failed to properly supervise Riverview staff. Id. Turning to the
first theory, the placement decision, Ms. Mayhew points to the allegations in Ms.
Edson’s Count IV, where Ms. Edson claims that Ms. Mayhew with Mary Louise
McEwen and William Lord, Jr. made a decision “to use corrections officers at
Riverview” and to “put the officers in direct contact with vulnerable and mentally ill
at-risk patients, including Ms. Edson.” Id. (quoting Second Am. Compl. ¶ 101). Ms.
Mayhew argues that this decision “does not support a Section 1983 claim against
[her]” because this decision did not lead “‘inexorably’ to Ms. Edson being peppersprayed and placed into restraints.” Id.
Even if Ms. Edson’s complaint could be
construed as meeting this standard, Ms. Mayhew contends that Ms. Edson’s
complaint does not allege facts sufficient to establish that, in staffing Riverview with
corrections officers, she was deliberately indifferent as to the consequences of this
decision on the civil rights of patients, including Ms. Edson, or that she had
knowledge of facts from which she could have drawn the inference that to do so would
place the patients at a “substantial risk of serious harm.”
Id. at 7–8 (quoting
Ramírez-Lluveras, 759 F.3d at 20).
Regarding the second theory, failure to train, Ms. Mayhew notes that Ms.
Edson has alleged in Count IV that she, Ms. McEwen and Mr. Lord “failed to train
Riverview employees [on] how to deal with, interact, and protect mentally ill
patients.” Id. at 8 (quoting Second Am. Compl. ¶ 102). Even assuming that this
allegation is sufficient to allege inadequate training, Ms. Mayhew argues that there
are no specific allegations that she, “the head of the entire Department of Health and
Human Services, was responsible for training Riverview employees.”
Mayhew contends that without specific allegations, this theory amounts to an
attempt to hold Ms. Mayhew responsible under the doctrine of respondeat superior,
which is not applicable to § 1983 claims. Id. at 9.
Finally, on the third theory, the failure to supervise found in Count VI, Ms.
Mayhew quotes the allegation, which states that she failed to end a “workforce
culture” that “made patient abuse at Riverview likely because staff members
routinely provoked responses from patients and ostracized and/or marginalized
employees who reported patient abuse.” Id. (quoting Second Am. Compl. ¶ 115).
Here, Ms. Mayhew argues that there is no allegation that she was “directly involved
in the management of Riverview such that she can be held responsible for the
December 2 incident.” Id. In support of her position, Ms. Mayhew cites Ashcroft v.
Iqbal, 556 U.S. 662 (2009), and maintains that the Supreme Court’s dismissal of the
Attorney General and the Director of the Federal Bureau of Investigation suggests
the same result should obtain here. Id. at 9–10. She also cites Feliciano-Hernández
v. Pereira-Castillo, 663 F.3d 527, 533–34 (1st Cir. 2011), where the First Circuit
concluded that similar allegations against “very high-level officials” with “vast
responsibilities” could not be subject to suit based on “conclusory allegations.” Id. at
Next, Ms. Mayhew maintains that even if Ms. Edson has successfully stated a
§ 1983 claim, Ms. Mayhew is entitled to qualified immunity “insofar as [her] conduct
does not violate clearly established statutory or constitutional rights of which a
reasonable person would have known.” Id. at 11 (quoting Pearson v. Callahan, 555
U.S. 223, 231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))).
Finally, Ms. Mayhew says that Ms. Edson has failed to state a negligent
supervision claim under Maine law. Id. at 13–15. Ms. Mayhew argues that Maine
law allows negligent supervision tort claims to proceed only against an employer, not
against an individual supervisor, that there is no allegation she directly supervised
any of the direct actors in this case, and that there is no allegation that any of the
individuals directly involved were ever previously involved in a similar incident such
that she would be put on notice of the potential for an incident like the one alleged
here. Id. at 14–15.
Arlene Edson’s Response
In general, Ms. Edson agrees with the analytic framework set forth in Ms.
Mayhew’s motion concerning § 1983 claims based on individual supervisory liability.
Pl.’s Opp’n at 4–5. Ms. Edson first says that her constitutional rights were violated
by Kelly Lavigne, Carlos Taylor, III, and William Lord, Jr., when they peppersprayed, handcuffed and restrained her. Id. at 5. Although she concedes that Ms.
Mayhew did not personally participate in the pepper-spraying, handcuffing or
restraint, she points out that her Complaint alleges that “it was Mayhew who decided
to place [COs] at Riverview with vulnerable, mentally ill patients” and, “[a]fter being
put on notice that the presence of COs [was] placing Riverview patients in immediate
jeopardy, Mayhew continued to allow them to remain at Riverview, armed with
handcuffs and pepper spray.”8 Id. at 5.
Ms. Edson argues that Ms. Mayhew’s actions in placing COs “armed with
handcuffs, Tasers and pepper spray at Riverview, and her failure to remove the COs,
amounted to deliberate indifference.” Id. at 6. Ms. Edson points to the following as
evidence of Ms. Mayhew’s prior notice of the potential for constitutional violations:
(1) the Consent Decree between a certified class of plaintiffs and the state of Maine
One of the mysteries in this case is when precisely Commissioner Mayhew made the decision
to place COs in the forensic unit called the Lower Saco Unit and when they were actually deployed
there. The Court searched the record and could find no direct reference to either date. In her reply,
Commissioner Mayhew concedes that her May 24, 2013 email shows that she “was aware that
correctional officers carried pepper spray.” Def.’s Reply at 3–4 n.1. This leads the Court to infer that
Commissioner Mayhew had made the decision to deploy COs by May 24, 2013 and that they were on
Lower Saco by then.
from 1990, concerning what was then Augusta Mental Health Institute’s deprivation
of fundamental rights of its patients, including freedom from restraint and abuse,
Second Am. Compl. Attach. 1 Settlement Agreement (Consent Decree); (2) a 2013 CMS
Statement of Deficiencies Report of May 10, 2013, Pl.’s Opp’n Attach. 1 Summ.
Statement of Deficiencies (CMS 2013 Report); (3) Ms. Mayhew’s May 23, 2013 email
about COs and pepper spray, id. Attach. 2 Email from Mary Mayhew to Michael
Cianchette and Kevin Wells (Mayhew May 2013 Email); and (4) the issuance of a
conditional license from the Maine Division of Licensing and Regulatory Services on
September 13, 2013, Second Am. Compl. Attach. 2 Prelim. Statement of Whistleblower
Protection Act Violation at 4 n.3 (Conditional License). Pl.’s Opp’n at 6–10. Ms. Edson
says that these documents placed Ms. Mayhew on notice of patient abuse at
Riverview but that she failed to act to correct the abuses, justifying the charge of
deliberate indifference. Id. at 10–11.
Ms. Edson acknowledges that she must also prove causation, namely that Ms.
Mayhew’s conduct led inexorably to the constitutional violation. Id. at 11. However,
she states that she can “prove causation by showing inaction in the face of a ‘known
history of widespread abuse sufficient to alert a supervisor to ongoing violations.’” Id.
(quoting Maldonado-Denis v. Castillo-Rodriguez, 23 F.3d 576, 582 (1st Cir. 1994)).
Ms. Edson cites the 1990 Consent Decree, the 2013 CMS Report, the May 2013
Mayhew email, and the 2013 Conditional License and quotes excerpts from the postincident investigation report as evidence that there was a pre-existing problem of
abuse with the COs of which Ms. Mayhew had actual and constructive notice. Id. at
11–12. She argues that “[h]ad Mayhew removed the COs entirely, or, at a minimum,
removed the handcuffs and pepper spray, [her] constitutional rights would not have
been violated on December 2, 2013.” Id. at 12.
Regarding Ms. Mayhew’s alleged failure to train and supervise, Ms. Edson
points out that Ms. Mayhew was “the Commissioner and policymaker for DHHS and
Riverview.” Id. at 12. She alleges that the Consent Decree outlines “specific training
obligations for Mayhew, as Commissioner of the Department of Health and Human
Services.” Id. (citing Consent Decree ¶¶ 34(a), 118–19, 205–07, 213–19). Ms. Edson
asserts that Jeanne Carroll, a whistleblower, believes that Ms. Mayhew terminated
her in part for bringing the abuse of Ms. Edson to light. Id. Ms. Edson also highlights
complaints that other Riverview workers made about the adequacy of training and
supervision. Id. at 13. She claims that this lack of training and oversight caused the
COs and others to abuse her. Id. at 13–14.
Addressing Ms. Mayhew’s qualified immunity, Ms. Edson describes the legal
standard to be “(1) whether the facts alleged or shown by the plaintiff make out a
violation of a constitutional right; and (2) if so, whether the right was ‘clearly
established’ at the time of the defendant’s alleged violation.” Id. at 14 (quoting Ayotte
v. Barnhart, 973 F. Supp. 2d 70, 78 (D. Me. 2013) (citing Rocket Learning Inc. v.
Rivera-Sánchez, 715 F.3d 1, 8 (1st Cir. 2013) (quoting Maldonado v. Fontanes, 568
F.3d 263, 269 (1st Cir. 2009)))). Ms. Edson rejects Ms. Mayhew’s contention that her
position as Commissioner makes her immune because, she says, Ms. Mayhew’s
“conduct violated clearly established statutory and constitutional rights, of which a
reasonable person would have known.” Id. at 15. She claims that Ms. Mayhew
ignored “warnings” about the potential for constitutional violations. Id. at 16. She
maintains that Ms. Mayhew was placed “on luminously clear notice that she might
become liable in her supervisory capacity should her actions and omissions contribute
to the continuation of the pathologies described in the Consent Decree and the CMS
Statement of Deficiencies.” Id. at 16–17.
Finally, as to the negligent supervision claim under Maine state law, Ms.
Edson disputes Ms. Mayhew’s contention that her supervisory position eliminates her
duty of care to Riverview’s patients, including herself. Id. at 17–18. Ms. Edson
contends that Ms. Mayhew owed a special duty to her because she was required by
law to be in the physical custody of Riverview, id. at 17, and that Ms. Mayhew
breached that duty by placing the COs in Riverview and by allowing them to remain
there. Id. at 18.
Mary Mayhew’s Reply
In her reply, Ms. Mayhew asserts that there is “little dispute regarding the
applicable law.” Def.’s Reply at 1. Ms. Mayhew points out that Ms. Edson has
conceded that she cannot be held liable individually on the theory of respondeat
superior and that she may be legally responsible only if through her own actions, she
has violated the Constitution. Id. Ms. Mayhew observes that Ms. Edson has agreed
that she cannot maintain a claim against her merely by showing that one of her
subordinates violated Ms. Edson’s constitutional rights; Ms. Edson has accepted the
obligation to show that Ms. Mayhew’s “action or inaction was affirmatively linked to
the behavior in the sense that it could be characterized as supervisory
encouragement, condonation [or] acquiescence or gross negligence amounting to
deliberate indifference.” Id. (quoting Pl.’s Opp’n at 4). Finally, Ms. Mayhew says
that Ms. Edson has admitted that she must demonstrate that Ms. Mayhew’s conduct
“led inexorably to the constitutional violation.” Id. (quoting Pl.’s Opp’n at 4).
Ms. Mayhew asserts that Ms. Edson has made no serious effort to argue that
she “somehow encouraged, condoned, or acquiesced in the behavior at issue here.” Id.
at 2. Ms. Mayhew frames Ms. Edson’s argument as being premised on the faulty
notion that Ms. Mayhew could have foreseen that this incident would have occurred.
Id. Specifically, Ms. Mayhew disputes Ms. Edson’s contention that the Consent
Decree entered into in 1990 can plausibly be construed as placing her on notice about
the possibility of an incident occurring on December 2, 2013. Id. at 3. Ms. Mayhew
makes a similar argument about the September 13, 2013 conditional license. Id.
Finally, Ms. Mayhew disagrees with Ms. Edson’s argument that the May 10, 2013
Statement of Deficiencies placed her on notice of anything about the COs’ potential
for harm to Riverside patients because the report dealt with the conduct of the
Kennebec County Sheriff’s Office. Id. at 4. Ms. Mayhew also distinguishes the facts
in Guadalupe-Báez v. Pesquera, 819 F.3d 509 (1st Cir. 2016), a case upon which Ms.
Edson relied in her opposition. Id. at 4–5.
Regarding the deliberate indifference claim, Ms. Mayhew stresses that to be
successful, a plaintiff must demonstrate a “strong causal connection between the
supervisor’s conduct and the constitutional violation,” which requires “proof the
supervisor’s conduct led inexorably to the constitutional violation.”
Id. at 5–6
(quoting Ramírez-Lluveras, 759 F.3d at 19–20) (emphasis in original). Ms. Mayhew
also quotes the First Circuit as saying that a plaintiff may “prove causation by
showing inaction in the fact of a ‘known history of widespread abuse sufficient to alert
a supervisor to ongoing violations’” and “isolated instances of unconstitutional
activity” are not sufficient.
Id. at 6 (quoting Guadalupe-Báez, 819 F.3d at 515
(quoting Maldonado-Denis, 23 F.3d at 582)). Applying these standards, Ms. Mayhew
contends that Ms. Edson has not alleged a “known history of widespread abuse” as
required by the law. Id.
Finally, turning to the failure to train and supervise allegation, Ms. Mayhew
argues that Ms. Edson “fails to allege facts establishing that Commissioner Mayhew,
the head of DHHS, was somehow responsible for supervising and training individual
Riverside employees.” Id. at 7. As Ms. Mayhew views it, Ms. Edson is attempting to
hold her responsible under the theory of respondeat superior, which is not allowed
under § 1983. Id. Furthermore, to prove the failure to train and supervise theory,
Ms. Edson would have to demonstrate that Ms. Mayhew was on notice that conduct
such as that at issue here was likely, and Ms. Mayhew contends Ms. Edson has not
alleged such notice. Id.
LEGAL STANDARD FOR MOTION TO DISMISS
Rule 12(b)(6) requires dismissal of a complaint that “fail[s] to state a claim
upon which relief can be granted.” FED. R. CIV. P. 12(b)(6). Under the general
pleading standards, a complaint must contain “a short and plain statement of the
claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). In
Ashcroft v. Iqbal, 556 U.S. 662 (2009), the United States Supreme Court elaborated
on this pleading standard in the context of a motion to dismiss: “To survive a motion
to dismiss, a complaint must contain sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” 556 U.S. at 678 (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
The First Circuit explained that “[t]he plausibility inquiry necessitates a twostep pavane.” García-Catalán v. United States, 734 F.3d 100, 103 (1st Cir. 2013)
(citing Rodríguez-Reyes v. Molina-Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013)). “First,
the court must distinguish ‘the complaint’s factual allegations (which must be
accepted as true) from its conclusory legal allegations (which need not be credited).’”
Id. (quoting Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224 (1st Cir. 2012)). “Second,
the court must determine whether the factual allegations are sufficient to support
‘the reasonable inference that the defendant is liable for the misconduct alleged.’” Id.
(quoting Haley v. City of Boston, 657 F.3d 39, 46 (1st Cir. 2011) (quoting Iqbal, 556
U.S. at 678)).
Individual Capacity Claims Under § 1983
Mary Mayhew’s motion has been narrowly drawn to challenge only one aspect
of Ms. Edson’s Second Amended Complaint, namely whether Ms. Edson has alleged
sufficient facts to state claims against Ms. Mayhew as an individual. Def.’s Mot. at 1
(“Mary Mayhew . . . respectfully requests that the individual capacity claims plaintiff
Arlene Edson asserts in her [Second] Amended Complaint be dismissed”). In this
motion to dismiss, Mary Mayhew has not addressed Ms. Edson’s claims against her
in her capacity as Commissioner of MDHHS. Id. at 4 n.2 (“Commissioner Mayhew
does not presently seek dismissal of official capacity claims”).
As the First Circuit observed, “[u]nlike an official-capacity § 1983 claim, in
which the state itself is liable for damages, an individual-capacity § 1983 claim
threatens the personal assets of the state officer only.” Mulero-Carrillo v. RománHernández, 790 F.3d 99, 108 (1st Cir. 2015) (citing Hafer v. Melo, 503 U.S. 21, 25
(1991)). As a consequence, a state official “sued in [her] personal capacity cannot
invoke a defense of sovereign immunity.” Id. At the same time, a “general executive
official,” like Ms. Mayhew, is protected by “qualified immunity.” Id. at 109 (citing
Harlow, 457 U.S. at 807). “[Q]ualified immunity shields government officials ‘from
liability for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.’”
Alfano v. Lynch, No. 16-1914, 2017 WL 430077, at *2 (1st Cir. Feb. 1, 2017) (quoting
Matalon v. Hynnes, 806 F.3d 627, 632–33 (1st Cir. 2015) (quoting Harlow, 457 U.S.
Ms. Edson advances four theories to show that Ms. Mayhew, in her
individual capacity, violated Ms. Edson’s constitutional rights: (1) failure to act; (2)
failure to train; (2) unlawful custom, practice, and policy; and (4) equal protection
Failure to Act
In Count V, Ms. Edson asserts a § 1983 claim against Ms. Mayhew premised
on a theory of supervisory liability alleging that Ms. Mayhew knew about the patient
abuse and failed to act. Second Am. Compl. ¶¶ 108–114. More specifically, she argues
that “[a]fter being put on notice that the presence of COs [was] placing Riverview
patients in immediate jeopardy, Mayhew continued to allow them to remain at
Riverview, armed with handcuffs and pepper spray.” Pl.’s Opp’n at 5.
It is axiomatic that “[g]overnment officials may not be held liable for the
unconstitutional conduct of their subordinates under a theory of respondeat
superior,” Sanchez, 590 F.3d at 49 (quoting Iqbal, 556 U.S. at 676), nor can liability
rest solely on the supervisor’s position of authority. Guadalupe-Báez, 819 F.3d at 515
(citing Ramírez-Lluveras, 759 F.3d at 19). Rather, supervisor officials may only be
held liable “if the plaintiff can establish that her constitutional injury resulted from
the direct acts or omissions of the official, or from indirect conduct that amounts to
condonation or tacit authorization.” Rodríguez-García v. Miranda-Marín, 610 F.3d
756, 768 (1st Cir. 2010) (citing Rodriguez-Garcia v. Mun. of Caguas, 495 F.3d 1, 10
(1st Cir. 2007)). In other words, a supervisor may be held liable under § 1983 either
as a “primary violator or direct participant in the rights-violating incident” or under
a deliberate indifference theory. Sanchez, 590 F.3d at 49.
As Ms. Mayhew concedes, as she must, that for purposes of this motion to
dismiss, “Ms. Edson’s allegations that she was pepper-sprayed for no reason and then
restrained for three hours before she was allowed to wash away the pepper spray are
taken as true.” Def.’s Reply at 2. By the same token, Ms. Edson concedes, as she
must, that Ms. “Mayhew did not personally participate in the pepper spraying,
handcuffing or restraint.” Pl.’s Opp’n at 5. Ms. Edson’s concession eliminates the
“primary violator or direct participant” theory against Ms. Mayhew.
The Court turns to Ms. Edson’s “deliberate indifference” theory of supervisor
liability. To establish “deliberate indifference,” the plaintiff must show “(1) that the
officials had knowledge of facts, from which (2) the officials can draw the inference
(3) that a substantial risk of serious harm exists.” Guadalupe-Báez, 819 F.3d at 515
(internal quotations omitted).
However, “deliberate indifference alone does not
equate with supervisory liability; a suitor also must show causation.” Camilo-Robles
v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998) (citing Maldonado-Denis, 23 F.3d at 582); see
also Guadalupe-Báez, 819 F.3d at 515 (“Causation remains an essential element, and
the causal link between a supervisor’s conduct and the constitutional violation must
be solid”). “This causation requirement ‘contemplates proof that the supervisor's
conduct led inexorably to the constitutional violation.’” Guadalupe-Báez, 819 F.3d at
515 (quoting Hegarty, 53 F.3d at 1380). “That is a difficult standard to meet but far
from an impossible one: a plaintiff may, for example, prove causation by showing
inaction in the face of a ‘known history of widespread abuse sufficient to alert a
supervisor to ongoing violations.’” Id. (quoting Maldonado-Denis, 23 F.3d at 582).
“‘[I]solated instances of unconstitutional activity’ will not suffice.”
Maldonado-Denis, 23 F.3d at 582). Finally, a supervisor must be on notice of the
violation. Id. (citing Ramirez-Llulveras, 759 F.3d at 20). Such notice may be actual
or constructive. Id.
To support her claim that Ms. Mayhew’s inaction amounted to deliberate
indifference, Ms. Edson points to four documents, the contents of which the Court
accepts as true for purposes of the motion to dismiss: (1) the 1990 Consent Decree, (2)
the May 10, 2013 CMS Statement of Deficiencies Report, (3) the Mayhew May 23,
2013 email, and (4) the 2013 Conditional License. Pl.’s Opp’n at 6–11. Essentially,
Ms. Edson argues that these documents put Ms. Mayhew on notice that the presence
of COs on the Lower Saco Unit created a substantial risk of harm of unlawful
restraint and abuse at Riverview. Id. at 6.
The Consent Decree, in effect since 1990, originated from a fifteen count
complaint made by patients alleging deprivations of rights, including, among others,
freedom from unnecessary seclusion and restraint and protection against physical
and psychological abuse. Consent Decree ¶ 6. The Consent Decree establishes the
standards governing Riverview’s treatment of patients, including standards for the
use of seclusion, restraint, and protective devices, id. ¶¶ 180–191, abuse, neglect, and
exploitation, id. ¶¶ 192–97, and training, id. ¶¶ 213–19. The Consent Decree also
states that the “Commissioner and Department of Human Services shall be
responsible for assuring that each class member public ward is provided all the
benefits of this Agreement. On a quarterly basis, they shall prepare and issue a
report regarding each such ward identifying the treatment plan for that period, the
steps taken to comply with the treatment plan, any obstacles identified in achieving
the stated goals, and plans for overcoming such obstacles, if any.” Id. ¶ 281.
Ms. Edson did not cite any specific provision of the Consent Decree that
addresses the presence of COs at Riverview. Therefore, the only implication from the
Consent Decree favorable to Ms. Edson’s theory of individual responsibility against
Ms. Mayhew is that by virtue of the Consent Decree, Ms. Mayhew was on notice that
at some point in the past and continuing into the present, sufficient concerns had
been raised about the status of Riverview patients to require the State to enter into
a Consent Decree to protect their constitutional rights, including the rights Ms. Edson
generally asserts were violated in this case. This document, though, does not provide
Ms. Mayhew with facts from which she could draw the reasonable inference that the
COs involved in the December 2, 2013 incident would violate Ms. Mayhew’s rights.
In fact, Ms. Edson states in her Second Amended Complaint that Riverview had in
place policies and standards related to the use of restraint and seclusion when the
incident took place. Second Am. Compl. ¶¶ 62–63, 65–67, 76. It is not foreseeable
that terms of the Consent Decree provide a basis to conclude that the COs, who were
not at Riverview during the problems that gave rise to the Consent Decree, would
violate institutional policies and use restraints or seclusion without good cause.
Ms. Edson relies upon a second document, the CMS Statement of Deficiencies
Report of May 10, 2013. In her opposition, Ms. Edson writes that “[i]n its Statement
of Deficiencies, CMS found that Riverview patients were in immediate jeopardy
resulting from the presence of CO’s armed with handcuffs and Tasers.” Id. at 8. She
cites A000, A115, A144, A145, A154, and A164 of the CMS report. Id. A000 states:
The hospital failed to ensure that patients were free from all forms of
abuse or harassment based on the inappropriate use of Tasers and
handcuffs identified on May 10, 2013 (see Tags A-0115 and A-0145). The
role of law enforcement personnel on the unit was not limited to the
supervision of prisoners who were also patients of the Hospital. The
Hospital permitted law enforcement personnel to used (sic) Tasers and
handcuffs on any patient in the unit, and allowed them to intervene for
any patient who they perceived as demonstrating threatening behavior.
This practice placed all patients on the unit at risk of being handcuffed
or Tasered by law enforcement personnel, regardless of their status.
CMS Report A100 at 1. However, a review of the CMS Report confirms that its
reference to “law enforcement personnel” was not to COs, but to the “Kennebec Sheriff
Officers (KSO).” Id. Similarly, A115 addresses “the use of a Taser in a patient who
was in a non-threatening position on the floor and the use of hard handcuffs by sheriff
officers to escort patients to seclusion and restraint would be that patients were
placed in danger of physical harm, pain and mental anguish.” Id. A115 at 7 (emphasis
supplied). A144, A145, A154 and A164 also involve members of the Kennebec County
Sheriff’s Department. See id. A144 at 9–10 (“In an interview with KSO Officer 1”);
A145 at 12 (“KSO will observe for any situation that appears to be escalating and
may intervene without staff request if there is imminent danger”); A154 at 18 (“Taser
was deployed by the KSO officer . . . Client was handcuffed”); A164 at 20 (“In an
interview with KSO Officer 1”). Furthermore, the CMS Report recommendations
were not directed to COs, but to members of the Kennebec Country Sheriff’s
Department, and were for education of staff and of the sheriff deputies and for
internal clarification and review:
The interim safety plan included immediate education for staff and
Kennebec Sheriff Officers (KSO), clarification of protocols, and review of
all incidents by the hospital.
Id. A100 at 1. The KSOs have since been removed from Riverview.9 Second Am.
Compl. ¶ 104 n.1, http://www.pressherald.com/2014/09/21/at-state-run-riverviewdanger-and-dysfunction-pervasive/ (Herald Article).
The most that can be gleaned from the CMS Report is that it placed Riverview
officials and perhaps Commissioner Mayhew on generalized notice that the
occasional presence of law enforcement officers at Riverview with Tasers and
handcuffs would require education of both the staff and the deputies. Again, though,
the CMS Report says nothing about a history of abuse by COs generally or by the
COs involved in the incident on December 2, 2013. Therefore, this Report does not
demonstrate that Ms. Mayhew knew of and disregarded complaints concerning the
COs’ misconduct. See Andrews v. Fowler, 98 F.3d 1069, 1079 (8th Cir. 1996) (holding
that complaints about former officers’ conduct, other than the officer involved in the
alleged incident, were not sufficient to demonstrate that the Mayor acted with
deliberate indifference). Moreover, even assuming this document put Ms. Mayhew
Although Commissioner Mayhew distinguishes between the deputy sheriffs and the COs, the
Second Amended Complaint and its attachments do not explain why Commissioner Mayhew
promulgated a policy to substitute COs for deputy sheriffs. Ms. Edson vigorously contends that the
decision to place COs on the Lower Saco Unit was not only without justification but led inexorably to
Based on this record alone, however, it is not unreasonable to infer that COs specifically
assigned the Lower Saco Unit, who receive special training on how to deal with psychiatric patients,
and who have daily interactions with the staff and the patients, would be at least as capable of
responding appropriately to conflict within the Unit as deputy sheriffs who are charged with handling
the wide range of criminal matters in Kennebec County, and whose contact with the Lower Saco Unit
would largely be restricted to transporting patients to and from the facility and responding to
emergency calls from the Unit. This is especially true where, as here, there is no known history of
abuse by the COs that Commissioner Mayhew decided to employ.
Of course, there would be a concomitant risk generated by placing untrained COs equipped
with pepper spray and handcuffs directly on a Unit housing forensic patients. One of the key issues
in this lawsuit, as the parties acknowledge, is whether the COs were properly trained and in this
motion, whether, if not, the responsibility for the failure may be placed with Commissioner Mayhew,
not as a state government official but as an individual.
on generalized notice that placing law enforcement officers in the presence of at-risk
patients could result in constitutional violations, the Report only identifies three
incidents of allegedly inappropriate conduct by officers. CMS Report A154 at 18–19;
B148 at 32–33. Three instances is not sufficient to put Ms. Mayhew on notice of
“‘widespread’ abuse.” Ramírez-Lluveras, 759 F.3d at 20.
The Court recognizes that there are some facial similarities between this case
In that case, the First Circuit held that a DOJ report
concluding that the Puerto Rico Police Department (PRPD) was “broken in a number
of critical and fundamental respects” and that PRPD officers had “engage[d] in a
pattern of practice of excessive force in violation of the Fourth Amendment” was
sufficient to cross the plausibility threshold because the Report demonstrated that
“such random and anonymous violence appears to be a predictable culmination of the
systemic problems documented in the Report.” Guadalupe-Báez, 819 F.3d at 512,
516–17. Similarly here, the Consent Decree and the CMS Report show generally that
Riverview has had problems with patient abuse, including abuse by the KSOs.
However, unlike in Guadalupe-Báez, in which the Report directly addressed the
issues within the PRPD, which was the police department to which the rightsviolators belonged, here, the CMS Report and Consent Decree say nothing about the
COs who allegedly violated Ms. Edson’s rights. It is hard to see how Ms. Mayhew
could have inferred, from these documents, that the COs would violate Ms. Edson’s
Additionally, as already discussed, the three instances concerning law
enforcement officers in the CMS Report in this case do not demonstrate the same
“pattern of practice” or “systemic problems” with the law enforcement officers that
the DOJ report revealed about the PRPD.
Id. at 516.
Therefore, neither Ms.
Mayhew’s decision to use COs at Riverview nor her failure to remove the COs based
on the information from the Consent Decree and CMS Report amounts to deliberate
The final two documents do little to advance Ms. Edson’s argument against
Ms. Mayhew in her individual capacity. The third document is a May 2013 email
exchange between Mary Louise McEwen, the Riverview Superintendent at the time
of the incident, and a number of individuals, including Commissioner Mayhew.
Mayhew May 2013 Email at 1–2. Superintendent McEwen’s May 23, 2013 email
addressed the use of Tasers at Riverview. Id. at 2. Apparently, Commissioner Morris
of the Department of Public Safety vetoed the use of Tasers at Riverview and, in her
email, Superintendent McEwen noted that “[r]ight now they have pepper spray which
if deployed will probably necessitate the evacuation of the unit. I have advised them
to call 911 for assistance either before and/or after use.” Id. Superintendent McEwen
noted discussions about using “other chemical devises that might pose less
environmental concerns” and referenced a meeting with Commissioner Morris “to
talk about long term solutions that will protect the safety of all.” Id. Finally, she
observed that while she and another person were on the unit, “there was a stat call
and one of our employees was injured and is on his way to the hospital.” Id.
The next day, Commissioner Mayhew forwarded Superintendent McEwen’s
email to two individuals whose titles are not part of this record, but it is apparent
that she is requesting that they perform a legal review. Id. at 1 (“I would really
appreciate it if the two of you could connect today related to the statutory and
regulatory interpretations governing these issues”) (emphasis supplied). To describe
the problem, Commissioner Mayhew listed hundreds of staff injuries at Riverview
over the last two plus years, including instances in which staff members had been
punched seventeen times before staff could stop the client, punched in the face when
a client was in five-point restraints, attacked by a client causing broken bones in the
ankle and foot necessitating surgery, and stabbed by a client in the face with a pen,
requiring surgical removal. Id. She said that all of these incidents had happened in
the last year and were forensic clients. Id.
Again, the most the Court can infer from these emails is that there were some
potential concerns about the use of Tasers and pepper spray by COs at Riverview.
This alone is not enough to put Ms. Mayhew on notice that the COs presented a
“substantial, unusually serious, or grave risk” of harm to patients’ rights.
Ramírez-Lluveras, 759 F.3d at 21 (internal quotations omitted). The information
contained in the emails does not make it reasonably foreseeable that the COs would
violate policies and use Tasers or pepper spray without good cause or in an unsafe
manner. Additionally, the email itself suggests that Ms. Mayhew was seeking advice
about what actions MDHHS could legally take “to make sure that the staff and other
patients are safe.” Mayhew May 2013 Email at 1. This inquiry hardly evinces
“reckless or callous indifference to the constitutional rights of others.” Guadalupe-
Báez, 819 F.3d at 515 (quoting Febus-Rodriguez v. Betancourt-Lebron, 14 F.3d 87, 92
(1st Cir. 1994)).
The last document is entitled “Jeanne Carroll v. State of Maine, Riverview
Psychiatric Center, Preliminary Statement of Whistleblower Protection Act
Violation.” Conditional License. Within her whistleblower statement is a footnote
that states in part that on September 13, 2013, the MDHHS Division of Licensing
and Regulatory Services issued a “conditional license to Riverview, informing the
administration that immediately upon the effective date of the conditional license the
hospital ‘shall promote and ensure patients’ rights,’ and ‘shall ensure that patients
are free from abuse.’” Id. at 4 n.3. In addition, according to the whistleblower
statement, the conditional license required Riverview within two weeks of the date of
the conditional license to “ensure that the least restrictive intervention which is
effective will be utilized in cases of restraint or seclusion.” Id. This document just
discusses the general obligations to ensure that patients’ rights are not violated.
In addition to the four cited documents, Ms. Edson discusses two post-incident
documents: (1) a newspaper article from the Portland Press Herald dated September
21, 2014, and (2) a licensure complaint investigation report dated March 27, 2014.
As described in the Second Amended Complaint, the Portland Press Herald article
quotes Cary Cromwell, a former mental health worker, as saying that mental health
workers had “little direction and training from supervisors” and that annual training
was “non-existent.” Second Am. Compl. ¶ 104; Herald Article. The Second Amended
Complaint also quotes Dr. Jean-Joseph Dansereau, a psychiatrist on temporary
assignment to Riverview, who said “They have created the most dangerous
psychiatric unit I’ve ever seen.” Id. ¶ 105; Herald Article. Ms. Edson alleges that the
deficiencies identified in the article about “non-existent” training were likely to result
in violations of the constitutional rights of the patients, including Ms. Edson. Second
Am. Compl. ¶ 106.
In the Investigation Report, staff members said that “the presence of the COs
was outside the culture of the recovery model” and that “[i]t wasn’t working . . .
[n]obody knew what to do or when to do it.”
Second Am. Compl. Attach. 3
Investigation Report #ME00015398 at 4. They also say that the use of pepper spray
on Ms. Edson was excessive and that its use was a “system failure.” Id.
Of course, both the newspaper article and the Investigation Report
substantially post-date the December 2, 2013 Edson incident, and are relevant to this
case only to the extent that they imply conditions at Riverview were so egregious that
Commissioner Mayhew must have been on notice of them. In this sense, these
documents confirm the contents of the other documents, namely that Riverview has
had systemic problems for decades. Nevertheless, the issue here is the decision to
place COs at Riverview10 and other than Ms. Edson’s incident with the COs, neither
Although her opposition focuses on Ms. Mayhew’s decision to place COs at Riverview and her
failure to remove them, Ms. Edson, at times, also appears to be asserting a claim that Ms. Mayhew
was deliberately indifferent to patient abuse committed by Riverview staff in general. See, e.g., Second
Am. Compl. ¶¶ 108–14. The documents relied upon by Ms. Edson suggest systemic problems with
Riverview staff in general and thus provide sufficient facts from which Ms. Mayhew could have drawn
the inference that a substantial risk of harm exists at Riverview. Nevertheless, Ms. Edson does not
plead any facts to suggest that Ms. Mayhew failed to act in light of this abuse. In fact, the documents
suggest that a number of steps were taken to address the issues. For example, MDHHS entered into
the Consent Decree to protect patients, Second Am. Compl. ¶¶ 16, 18; developed policies to address
patient abuse, id. ¶¶ 62–63, 65–68, 76, 78; and replaced the KSOs, as well as the Superintendent.
the Investigation Report nor the article discusses any other specific instances of
misconduct by the COs. Like the Consent Decree, the article just discusses the
patient neglect and abuse in general. To put Ms. Mayhew on notice that the COs
presented a grave risk of harm, Ms. Edson needed to demonstrate that the COs’ abuse
was truly widespread. See Ramírez-Lluveras, 759 F.3d at 20. The only instance of
misconduct by the COs mentioned is Ms. Edson’s incident, but isolated instances of
unconstitutional activity are insufficient. See id.
Nothing cited by Ms. Edson would have alerted Ms. Mayhew that the COs
would violate the policies for restraint, seclusion or abuse by pepper spraying and
restraining Ms. Edson without cause. There are no allegations of prior instances of
violations by these COs or of a widespread history of abuse by the law enforcement
officers at Riverview generally. Therefore, Ms. Mayhew cannot be held liable under
a deliberate indifference theory for her assignment of COs to Riverview, her failure
to remove the COs, or her failure to remove their handcuffs, Tasers, or pepper spray.
Failure to Train
In Count IV, Ms. Edson asserts a § 1983 claim against Ms. Mayhew premised
on a theory of a failure to train.
Second Am. Compl. ¶¶ 100–07.
supervisory liability in general, a responsible official may be liable if she “supervises,
trains, or hires a subordinate with deliberate indifference toward the possibility that
deficient performance of the task eventually may contribute to a civil rights
deprivation.” Sanchez, 590 F.3d at 49 (quoting Zapata, 175 F.3d at 44).
Herald Article. Therefore, there are also not sufficient facts to suggest that Ms. Mayhew was
deliberately indifferent to patient abuse by Riverview employees generally.
Ms. Edson pleads sufficient facts to establish that there may have been
inadequate training and that Ms. Mayhew may have had notice that placing law
enforcement officers at Riverview without education of the staff and officers could
result in constitutional violations.
See CMS Report A100 at 1 (recommending
education for staff and KSOs at Riverview); Second Am. Compl. ¶ 104 (“[M]ental
health workers had little direction and training from supervisors and . . . annual
training was non-existent”) (internal quotations omitted).
However, Ms. Edson fails to plead any affirmative link of this failure to train
to Ms. Mayhew. Ms. Edson must establish that Ms. Mayhew had some degree of
control over the training of the COs or staff at Riverview. See Zapata, 175 F.3d at 44
(“[L]iability attaches if a responsible official supervises, trains, or hires a subordinate
with deliberate indifference”) (emphasis added); see also Maldonado-Denis, 23 F.3d
at 582 (holding supervisor can be liable for deliberate indifference “if he had the power
and authority to alleviate it”) (emphasis added). Ms. Edson states that Ms. Mayhew
is the Commissioner and policymaker for MDHHS and Riverview.
Compl. ¶ 5. As Commissioner, Ms. Mayhew oversees multiple departments and has
vast responsibilities, and she cannot by her role or position of authority alone be said
to be individually liable. See Guadalupe-Báez, 819 F.3d at 515.
Ms. Edson also cites Ms. Mayhew’s “training obligations” in the Consent
Decree. Pl.’s Opp’n at 12. However, the cited portions of the Consent Decree have
nothing to do with Ms. Mayhew’s responsibilities over the training of the COs or staff.
See Consent Decree ¶¶ 34(a), 118–29, 205–07, 213–19. The Decree just places general
obligations on the defendants, including the Commissioner, to assure the protection
of patients’ constitutional rights. See Feliciano-Hernández, 663 F.3d at 534 (“[W]e
have repeatedly held that . . . broad allegations against high-ranking government
officials fail to state a claim”). In fact, Ms. Edson admits that it is the Superintendent
of Riverview who is involved in the day-to-day operations at Riverview. Second Am.
Compl. ¶ 6. The only connection that Ms. Edson establishes between Ms. Mayhew
and the COs is that Ms. Mayhew made the decision to place COs at Riverview and
that the contract was between MDHHS and the Maine Corrections Department.
Second Am. Compl. ¶¶ 31, 101. The mere fact that Ms. Mayhew made a policy
decision that led to the MDHHS’s employment of the COs is not sufficient to hold her
liable for a failure to train. See Marrero-Rodríguez v. Mun. of San Juan, 677 F.3d
497, 503 (1st Cir. 2012).
Custom, Practice & Policy Liability
In Count VI, Ms. Edson asserts a § 1983 claim premised on a theory of custom,
practice, and policy liability.
Second Am. Compl. ¶¶ 115–19.
In Morales v.
Chadbourne, 793 F.3d 208 (1st Cir. 2015), the First Circuit wrote that supervisory
liability may proceed under § 1983 for “formulating a policy, or engaging in a custom,
that leads to the challenged occurrence.” Id. at 222 n.5 (quoting Maldonado-Denis,
23 F.3d at 582).
Here, there is no allegation that the Riverview policies led to the December 2,
2013 incident. Nor has Ms. Edson claimed that the policies in place at Riverview
were themselves deficient. To the contrary, in her Second Amended Complaint, Ms.
Edson quotes the then-existing Riverview policies on the use of force, Second Am.
Compl. ¶¶ 62–63, 65–68, 76, 78, and alleges that the COs violated those policies when
they pepper-sprayed and handcuffed her and that the staff again violated those
policies when they failed to document and report the incident accurately. Id. ¶¶ 64,
69–75, 77, 79, 80.
Instead, Ms. Edson alleges that an unlawful “custom” concerning the reports
of abuse led to the challenged occurrence. In her Second Amended Complaint, Ms.
Edson says that the Portland Press Herald article reports that there was a “workplace
culture” of provoking responses from patients and ostracizing and/or marginalizing
employees who reported abuse. Id. ¶ 115. She also alleges that the hospital’s culture
was to “look the other way” when patients were abused. Id. ¶ 117. However, Ms.
Edson does not suggest that Ms. Mayhew herself engaged in this custom. In fact, she
suggests that the staff actively concealed the abuse and failed to report the incident
immediately to MDHHS. Id. ¶¶ 69, 80. The only statement connecting Ms. Mayhew
to this “custom” is that Ms. Mayhew “knew or had reason to know of the ‘look the
other way’ culture toward patient abuse at Riverview, but . . . took no action to end
it.” Id. ¶ 118. This statement, which essentially parrots the standard for deliberate
indifference, is not sufficient. See Feliciano-Hernández, 663 F.3d at 534. Ms. Edson
does not plead facts to show that there was a history or widespread culture of covering
up this kind of abuse sufficient to put Ms. Mayhew on notice. The single incident of
alleged misreporting after Ms. Edson’s instance is not enough.
Equal Protection Claim
In Count IX, Ms. Edson brings a claim against Ms. Mayhew under the Equal
Protection Clause. Second Am. Compl. ¶¶ 131–34. Neither party briefed the Equal
Protection issue. However, the Court finds the same defects present in this claim
that are present in the other constitutional claims against Ms. Mayhew as an
individual. The only possible Equal Protection allegations in the Second Amended
Complaint state that “[t]here is no rational basis for the different treatment inflicted
on Ms. Edson on or about December 2, 2013, and other similarly situated Riverview
patients” and that “[t]he Defendants’ conduct was the legal cause of the violation of
Ms. Edson’s federally protected rights.” Id. ¶¶ 133–34. These statements simply
mimic the legal elements for an Equal Protection violation, without explaining how
Ms. Mayhew’s own direct actions violated the Equal Protection Clause or how she
was deliberately indifferent to other individuals’ violations. These sort of conclusory
statements are not sufficient to overcome a motion to dismiss. Feliciano-Hernández,
663 F.3d at 534 (“These are exactly the sort of ‘unadorned, the-defendant-unlawfullyharmed-me accusation[s]’ that both we and the Supreme Court have found
insufficient”) (quoting Iqbal, 556 U.S. at 678).
In sum, the Court grants the Motion to Dismiss with respect to the individual
capacity constitutional claims against Ms. Mayhew. The Court’s decision not to hold
Ms. Mayhew liable is in line with precedent. The Supreme Court and the First Circuit
have been reluctant to impose personal liability under § 1983 and similar statutes
against high government officials who administer large agencies. In the seminal case
of Iqbal, the Supreme Court rejected a claim against Attorney General John Ashcroft
and Federal Bureau of Investigation (FBI) Director Robert Mueller, which had
attempted to fix liability on the ground that Attorney General Ashcroft was the
“principal architect” of the policy that led to the plaintiff’s detention and that Director
Mueller was “instrumental” in adopting and executing it. Iqbal, 556 U.S. at 669. The
Iqbal Court deemed those allegations too conclusory to be entitled to an assumption
of truth. Id. at 681.
Subsequently, in Soto-Torres v. Fraticelli, 654 F.3d 153 (1st Cir. 2011), the
First Circuit rejected a claim against the Special Agent in Charge (SAC) of the FBI’s
Puerto Rican operations, who had been sued in his individual capacity, for the alleged
use of excessive force by FBI agents in executing an arrest warrant upon the plaintiff.
Id. at 155–57.11 In Soto-Torres, the First Circuit addressed the SAC’s qualified
immunity defense and wrote that “all high officials in charge of a government
operation ‘participate in’ or ‘direct’ the operation.” Id. at 159. But the First Circuit
interpreted Iqbal as ruling that this type of involvement is “plainly insufficient to
support a theory of supervisory liability and fails as a matter of law.” Id.
A good example of the application of this principle is Marrero-Rodriguez v.
Municipality of San Juan, 677 F.3d 497 (1st Cir. 2012), which arose out of a tragic
accident during police training. Id. at 500–01. In violation of a number of protocols,
a lieutenant in the San Juan police force shot another officer during a training
exercise, causing the officer’s death. Id. The decedent’s wife and two sons filed suit
Soto-Torres was a Bivens-action, but as the First Circuit has written, a Bivens action is “the
federal analog to § 1983 suits against state officials.” Hernandez-Cuevas v. Taylor, 836 F.3d 116, 118
n.1 (1st Cir. 2016) (quoting Hernandez-Cuevas v. Taylor, 723 F.3d 91, 93 n.1 (1st Cir. 2013) (quoting
Soto-Torres, 654 F.3d at 158)).
under § 1983 against the Municipality of San Juan, the Mayor of San Juan,
supervisory officers, and the officers who were directly involved in the incident. Id.
at 501. The Marrero-Rodriquez Court found that the complaint stated a claim against
the officers directly involved in the incident. Id. at 502. Emphasizing their direct
role in the conduct of the training exercises, their involvement in the structuring of
the lethal training that day, and their failure to implement policies, protocols, or
correct training, the First Circuit also determined that the complaint stated a claim
against “the police defendants not present that day, but with direct responsibility for
training.” Id. at 502–03. As regards the mayor, however, the First Circuit stated
that “[i]t takes more than this . . . to assert a § 1983 claim against those who have no
personal involvement of any sort in the events, such as the Mayor.” Id. at 503. The
First Circuit pointed out that the “Mayor is not amenable to suit, as pled in the
complaint, merely because he is Mayor.” Id. The First Circuit allowed the case to
proceed against the officers directly involved, the officers directly responsible for
training and supervising the officers directly involved, but not against the Mayor. Id.
As there is no evidence in this case that Riverview did not have appropriate
policies in place or that Ms. Mayhew was on notice that the COs would violate these
policies, and as there is no allegation that Ms. Mayhew as Commissioner of MDHHS
was or should have been more directly involved in the actual training of the COs or
staff, Ms. Mayhew becomes like the Mayor of San Juan, subject to dismissal.
Negligent Supervision under Maine Law
In her motion, Ms. Mayhew agrees that the Maine Supreme Judicial Court
adopted the tort of negligent supervision in Fortin v. The Roman Catholic Bishop of
Portland, 2005 ME 57, ¶ 39, 871 A.2d 1208. Def.’s Mot. at 13–14. The Fortin Court
wrote that “if a plaintiff asserts the existence of facts that, if proven, establish a
special relationship with a defendant in accordance with section 315(b) of the
Restatement (Second) of Torts, an action may be maintained against the defendant
for negligent supervision liability in accordance with section 317 of the Restatement.”
Fortin, 2005 ME 57, ¶ 39, 871 A.2d 1208. Ms. Mayhew assumes for purposes of her
motion that a person, like Ms. Edson, who had been committed to Riverview, would
thereby qualify as having “special relationship” with the state of Maine. Def.’s Mot.
at 14 (“Assuming for sake of argument that there was a special relationship here”).
Despite this assumption, Ms. Mayhew contends that the tort of negligent
supervision in Maine is available only against an employer, not against an individual.
Ms. Edson disagrees and argues that the tort of negligent supervision is
sufficiently broad in Maine to include a claim against the individual negligent
supervisor.12 Pl.’s Opp’n at 17–18.
The Maine Supreme Judicial Court was not called upon to address this issue
in Fortin because the sole defendant in the lawsuit was The Roman Catholic Bishop
Ms. Edson vigorously argues that she had a special relationship with Commissioner Mayhew,
a point conceded for the sake of argument by Commissioner Mayhew. Compare Pl.’s Opp’n at 17–18,
with Def.’s Mot. at 14. The Commissioner’s concession is consistent with the Maine Supreme Judicial
Court’s conclusion in Dragomir v. Spring Harbor Hosp., 2009 ME 51, ¶ 21, 970 A.2d 310 (concluding
that a patient admitted to a psychiatric hospital had “alleged facts that, if proven, would constitute a
special relationship . . . to survive a motion to dismiss”).
of Portland, whom the Fortin Court referenced as “the Diocese”; there is no indication
in the opinion that the Bishop was sued in his individual capacity.13 Although the
Maine Supreme Judicial Court has addressed the tort of negligent supervision on a
number of occasions since Fortin, it has not been called on to resolve whether under
Maine law, a plaintiff may make a claim against the supervisor as an individual for
negligent supervision. See Picher v. Roman Catholic Bishop of Portland, 2013 ME
99, 82 A.3d 101 (claim against the Bishop of Portland, a corporate sole); Gniadek v.
Camp Sunshine at Sebago Lake, Inc., 2011 ME 11, 11 A.3d 308 (claim against Camp
Sunshine, a nonprofit corporation); Dragomir v. Spring Harbor Hosp., 2009 ME 51,
970 A.2d 310 (claim against psychiatric hospital). In general, the tort of negligent
supervision has been described as arising “in the context of the duty an employer
might owe for the conduct of an employee.” See Laurence v. Howard Sports-Topsham,
No. BATSC-CV-07-062, 2009 Me. Super. LEXIS 129, at *16 (Me. Super. Ct. May 5,
Most of the decisional law in Maine after Fortin has focused on whether a
special relationship exists between the plaintiff and the defendant, not whether a
supervisor may be held individually responsible under the tort of negligent
The parties cited no Maine law on this narrow issue, but each found one case
Commissioner Mayhew cited a decision from New Jersey, Duran v. Warner, No. 075994 (JBS/AMD), 2013 WL 4483518, at *8 (D.N.J. Aug. 20, 2013), which she said
In Picher v. Roman Catholic Bishop of Portland, 2013 ME 99, ¶ 1, 83 A.3d 101, the Maine
Supreme Judicial Court referred to the Roman Catholic Bishop of Portland as “a corporation sole.”
holds that the tort of negligent supervision does not permit a claim against the
individual supervisor. Def.’s Mot. at 14. Ms. Edson cited a decision from New York,
Krystal G. v. Roman Catholic Diocese of Brooklyn, 933 N.Y.S.2d 515, 522 (N.Y. Sup.
Ct. 2011), which she says stands for the proposition that individual liability may
attach. Pl.’s Opp’n at 18.
In Duran, the United States District Court for the District of New Jersey wrote
unequivocally that “[u]nder New Jersey law, a negligent supervision claim can only
be brought against the employer entity and is not cognizable against the individual
supervisor.” 2013 WL 4483518, at *8; see PJ Food Serv. v. APCO Petroleum Corp.,
No. 16-1853, 2016 U.S. Dist. LEXIS 170401, at *20 n.5 (D.N.J. Dec. 9, 2016). By
contrast, the Krystal G. case does not directly address whether the tort of negligent
supervision may be brought against a supervisor as an individual. 933 N.Y.S.2d at
525. The Krystal G. Court concluded that “a corporate officer or agent may be found
liable for negligently supervising a third party that was responsible for the plaintiff’s
injury, even if that corporate officer was acting in his or her official capacity.” Id.
Although the New York Supreme Court held that the named person could be held
liable under a theory of negligent supervision “even if . . . acting in his or her official
capacity,” it did not explain whether the individual could also be held liable in a
personal capacity. Id.
Given the sparse, out-of-state authority the parties have cited for a proposition
of Maine law, the Court is not sufficiently confident about the status of the tort of
negligent supervision in Maine to grant or deny the pending motion to dismiss.
Instinctively, it may well be that the tort of negligent supervision in Maine allows a
lawsuit only against the employer or an employee in her official capacity, a result
that would be consistent with the Court’s conclusion regarding the § 1983 claims.
Nevertheless, the argument is so undeveloped that the Court prefers to defer ruling.
Instead, the Court will dismiss the motion without prejudice, allowing Commissioner
Mayhew to regroup and challenge this part of the lawsuit on a fuller record and more
The Court GRANTS in part and DISMISSES in part Mary Mayhew’s Motion
to Dismiss Individual Capacity Claims (ECF No. 65). The Court GRANTS Mary
Mayhew’s motion to dismiss as to all counts alleging a violation of 42 U.S.C. § 1983,
including Counts IV, V, VI, and IX. The Court DISMISSES without prejudice Mary
Mayhew’s motion to dismiss Count XII.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 28th day of February, 2017
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