WILLIAMS v. EVERY JUDGE IN MAINE et al

Filing 5

REPORT AND RECOMMENDED DECISION re 1 Complaint,,, filed by BRADLEY PAUL WILLIAMS. Objections to R&R due by 8/8/2016. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

BRADLEY PAUL WILLIAMS,

)
)
Plaintiff,
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)
v.
)
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EVERY JUDGE, DISTRICT ATTORNEY, )
POLICE OFFICER, et al.,
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)
Defendants
)

1:16-cv-00235-DBH

RECOMMENDED DECISION AFTER SCREENING PLEADING PURSUANT TO
28 U.S.C. § 1915
In this action, Plaintiff Bradley Paul Williams alleges that Defendants violate the
Constitution when a bail commissioner fee is paid in Maine and not refunded following dismissal
of the charge that required the posting of bail.
Plaintiff filed an application to proceed in forma pauperis, which application the Court
granted. (ECF Nos. 3, 4.) In accordance with the in forma pauperis statute, a preliminary review
of Plaintiff’s complaint is appropriate.

28 U.S.C. § 1915(e)(2).

Following that review, I

recommend the Court dismiss Plaintiff’s complaint.
BACKGROUND
Plaintiff asserts he was arrested and detained in Belfast for mailing a court document to the
opposing party in a state court protection from harassment proceeding.1 (Complaint at 4, ECF No.
1.) The bail commissioner set bail at $500 and imposed a $60 fee, which amounts Plaintiff paid.

1

In another matter, Plaintiff has asserted a claim against the City of Belfast and others regarding the alleged false
arrest. Williams v. Waldo County, No. 1:16-cv-00211-DBH. Based on a review of the complaint in that action, it
appears that the arrest occurred in 2014.

(Id.) More than a year later, the state dismissed the charges against Plaintiff. Plaintiff received a
refund of the $500 bail, but not the $60 fee. (Id.)
Plaintiff requests a refund of the $60 fee. He also asks the Court to overturn “the offensive
laws,” to order refunds for everyone who has paid the bail commissioner’s fee, and to award
punitive damages. (Id. at 5.) The $60 bail commissioner fee paid by Plaintiff is the maximum fee
permitted by Maine law. 15 M.R.S. § 1023(5).2
DISCUSSION
The federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure meaningful
access to the federal courts for those persons unable to pay the costs of bringing an action. Because
the waiver of fees might encourage some individuals to file suit regardless of the merits, the statute
authorizes the court to dismiss actions that fail to state a viable claim or that present frivolous,
malicious, or repetitive claims. 28 U.S.C. § 1915(e)(2)(B). “Dismissals on these grounds are often
made sua sponte prior to the issuance of process, so as to spare prospective defendants the
inconvenience and expense of answering such complaints.” Neitzke v. Williams, 490 U.S. 319,
324 (1989).
A.

Standard of Review
When deciding whether to dismiss a claim or action for failure to state a claim, the court

must accept as true the factual allegations of the complaint, draw all reasonable inferences in favor
of the plaintiff that are supported by the factual allegations, and determine whether the complaint,
so read, sets forth a plausible basis for recovery. Trans-Spec Truck Serv., Inc. v. Caterpillar Inc.,

2

The bail commissioner provision is a section of the larger Maine Bail Code, 15 M.R.S. §§ 1001 et seq. The statute
contains two provisions for indigent relief from the bail commissioner’s fee. The first provides that “[t]he sheriff of
the county in which the defendant is detained may create a fund for the distribution by the sheriff or the sheriff’s
designee for the payment in whole or in part of the $60 bail commissioner fee for those defendants who do not have
the financial ability to pay that fee.” Id. Additionally, “[t]he Chief Judge of the District Court may adopt rules
requiring a bail commissioner to appear and set bail regardless of whether the defendant is indigent and unable to pay
the bail commissioner’s fee.” Id. § 1023(8).

2

524 F.3d 315, 320 (1st Cir. 2008). To assert a civil action in federal court, a plaintiff cannot simply
allege that a defendant acted unlawfully; a plaintiff must affirmatively allege facts that identify the
manner by which the defendant subjected the plaintiff to a harm for which the law affords a
remedy. Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
When the plaintiff is a pro se litigant, the court will review his or her complaint subject to
“less stringent standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S.
519, 520 (1972). Additionally, the pleadings of pro se plaintiffs are generally interpreted in light
of supplemental submissions. Wall v. Dion, 257 F. Supp. 2d 316, 318 (D. Me. 2003).
B.

Analysis
Under 42 U.S.C. § 1983, an individual may bring an action in federal court against another

person who subjects him to the deprivation of a federal right through an exercise of state authority.3
42 U.S.C. § 1983; Gutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 559 (1st Cir. 1989).
Accordingly, in this case, this Court’s jurisdiction is founded on § 1983. In order to maintain a §
1983 action in federal court against those who exercise state authority, Plaintiff must assert a claim
that describes a deprivation of a federal right. Baker v. McCollan, 443 U.S. 137, 145 n.3 (1979)
(explaining that section 1983 “is not itself a source of substantive rights, but a method for
vindicating federal rights elsewhere conferred by those parts of the United States Constitution and
federal statutes that it describes”).

3

Section 1983 provides, in relevant part, as follows:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State
or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United
States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress, except that in any action brought against
a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief
shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable.
…
42 U.S.C. § 1983.

3

The Due Process Clause of the Fourteenth Amendment prohibits a state from depriving a
person of “life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1.
The analysis of a due process claim proceeds in two stages. The Court first considers “whether
there exists a liberty or property interest of which a person has been deprived,” and if so, it then
considers “whether the procedures followed by the State were constitutionally sufficient.”
Swarthout v. Cooke, 562 U.S. 216, 219 (2011). “[T]he processes required by the Clause with
respect to the termination of a protected interest will vary depending upon the importance attached
to the interest and the particular circumstances under which the deprivation may occur.” Walters
v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 320 (1985).
Plaintiff alleges facts related to his payment of a $60 fee, through which payment, together
with the cash bail, Plaintiff secured his release on bail. Plaintiff, therefore, has not alleged a denial
of his liberty.4 Indeed, given that Plaintiff alleges he was arrested on a “Friday night” (i.e., after
regular court hours), the bail commissioner system allowed Plaintiff to secure his pretrial release
without spending one night in detention. 5
Because Plaintiff was not deprived of his liberty, the issues are whether the $60 bail
commissioner fee is refundable and, if not, whether the loss of the fee is a non de minimis
deprivation of property amounting to a punishment for being arrested. Plaintiff alleges that the
bail commissioner simply arrived at the county jail, determined how much money Plaintiff had in
his wallet ($560), set the bail at $500, and took the remaining $60 as his fee. (Complaint at 4.)

4

Under Maine law, certain crimes are “bailable as of right preconviction.” 15 M.R.S. § 1003(3).

“Bail … is basic to our system of law ….” Schilb v. Kuebel, 404 U.S. 357 (1971) (explaining that the prohibition
against excessive bail stated in the Eighth Amendment “has been assumed to have application to the States through
the Fourteenth Amendment”). I am unaware of any authority to suggest that the imposition of a $60 fee to obtain bail
would offend the Eighth Amendment prohibition against excessive bail, particularly on facts demonstrating that the
plaintiff was not denied access to bail. Persuasive authority is to the contrary. Broussard v. Parish of Orleans, 318
F.3d 644, 651 (5th Cir. 2003).
5

4

Plaintiff further contends that there is no means of recovering the $60 bail commissioner fee
through any postdeprivation procedure, particularly as bail commissioners are immune under state
law against civil liability pursuant to 15 M.R.S. § 1023(3). (Id. at 5.)
1.

Allegations Against Named Defendants

Plaintiff attempts to assert a claim against all of the state court judges, including some
named individually, the state district attorneys, various law enforcement officials and agencies, a
bail commissioner, and the state’s attorney general. In support of his attempt, Plaintiff asserts that
the “theft” or “extortion” of the $60 fee has been sanctioned by “every judge, cop and prosecutor
in the State of Maine.” (Id.)
First, with respect to police officers, district attorneys, the attorney general, and the Maine
State Bar Association, Plaintiff has not alleged any facts regarding their involvement in the
assessment, collection or retention of the bail commissioner fee in his case. Accordingly, dismissal
of Plaintiff’s complaint against them is warranted.6
With respect to Defendant Crowley, to the extent Plaintiff seeks to recover punitive
damages against Defendant Crowley in his individual capacity for a constitutional violation, given
that Maine law authorizes Defendant Crowley to collect the fee for his services, Plaintiff’s
complaint would not support a finding that Defendant Crowley’s retention of a $60 fee for bail
services reflects “evil motive or intent” or “reckless or callous indifference to the federally
protected rights of others,” which is the standard that governs an award of punitive damages in a
§ 1983 claim. Smith v. Wade, 461 U.S. 30, 56 (1983).

6

Plaintiff cannot pursue a claim on behalf of every person ever assessed a bail fee in connection with an arrest resulting
in charges that were later dismissed. “The federal courts have consistently rejected attempts at third-party lay
representation. By law an individual may appear in federal courts only pro se or through legal counsel.” HerreraVenegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982) (citing United States v. Taylor, 569 F.2d 448, 450 – 51
(7th Cir.), cert. denied, 435 U.S. 952 (1978), and 28 U.S.C. § 1654). As a pro se litigant, Plaintiff cannot represent
the interests of other persons in this court. Id.

5

Plaintiff’s action thus is a claim for equitable relief in the form of a refund and a request
that the Court declare the bail commissioner fee provision of the Maine Bail Code unconstitutional.
Plaintiff’s claim is inherently a claim against an official acting on behalf of the state, i.e., an
“official capacity” claim. In the context of an official capacity claim requesting a refund of a fee
paid in connection with the administration of the Maine Bail Code, Plaintiff has not alleged any
facts upon which one could conclude that Defendant Crowley is charged with the administration
of refund requests or with determining the availability of refunds as a matter of state policy.
Because Plaintiff must pursue his claim against an official or entity charged with such authority,
Ex parte Young, 209 U.S. 123, 159 – 60 (1908), and because Plaintiff has not asserted facts to
support an official-capacity claim against Defendant Crowley, Plaintiff has not stated an actionable
claim against Defendant Crowley.
Finally, as to Plaintiff’s claim against the judicial officers, the only conceivable claim he
could have would be a claim against the judicial officer who presided over the dismissal of the
criminal charges arising from Plaintiff’s allegedly unlawful arrest.

Judges can be proper

defendants “when they promulgate rules or have individual authority to initiate enforcement
measures,” Fellows v. Raymond, 842 F. Supp. 1470, 1471 (D. Me. 1994), and where they possess
“administrative responsibilities” in connection with the challenged statutory scheme. Rivera-Puig
v. Garcia-Rosario, 983 F.2d 311, 318 (1st Cir. 1992). However, even if the presiding judicial
officer who entered the order dismissing the charges against Plaintiff might be an appropriate
defendant, Plaintiff has not identified that judicial officer. In addition, Plaintiff has not alleged
that he ever made a request of that judicial officer for the refund of the bail commissioner’s fee,
that the judicial officer had the authority to refund the fee, or that he would lack a state law remedy
had the judicial officer denied a request for the return of the bail commissioner’s fee. Furthermore,
in the specific context of a § 1983 civil action challenging the State’s administration of the Bail
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Code, Plaintiff has not alleged any facts that would support the conclusion that the presiding
judicial officer has the authority to promulgate rules on behalf of the state court or otherwise to
establish state policy regarding the refund of bail commissioner fees. Plaintiff, therefore, has not
stated a claim against a judicial officer.
2.

The Merits of Plaintiff’s Constitutional Claims

Even if the Court determined that Plaintiff had joined a proper defendant in his challenge
to the bail commissioner fee, dismissal is appropriate because Plaintiff has failed to state an
actionable claim.
a. Relevant authority
In Schilb v. Kuebel, 404 U.S. 357 (1971), the Supreme Court reviewed the Illinois bail
system, which provided arrestees the option to obtain pretrial release through either the payment
of the entire bail amount, in which case compliance with the bail bond would result in a complete
refund, or through the payment of 10 percent of the bail amount, in which case a fee of 1 percent
of the amount of bail would be retained by the court regardless of compliance with the bail bond
terms. Id. at 362. The Court held that the system did not violate due process and equal protection
given that the choice to use the 10 percent bail option was “reserved to the accused,” id., and
because the “1% cost-retention provision,” id. at 365, was nothing more than a modest
administrative fee supported by a valid administrative rationale (payment for the bail bond option,
which payment offset the increased risk of bail jumping) rather than a cost imposed by the court
against the not-guilty person. Id. at 363 – 371.7

The Court observed that the Illinois system was a significant improvement on Illinois’s historic use of a bail
bondsmen system, which system required the payment, as costs, of a fee measured by 10% of the amount of bail.
Schilb, 404 U.S. at 366.
7

7

In Payton v. County of Carroll, 473 F.3d 845 (7th Cir. 2007), the Seventh Circuit
considered whether the Illinois bail system violated the Constitution where it permitted a detainee
to obtain bail from the sheriff rather than the court, subject to an administrative fee set and retained
by the sheriff.8 Id. at 846. The Court affirmed dismissal of due process claims, noting that the
Supreme Court held in Schilb that such a small administrative cost readily survived rational basis
review. Id. at 848. The Court was not persuaded that prepayment of the fee made a difference to
the analysis. Id. at 849. The Court also considered the potential impact of the fee on an indigent
defendant, and concluded that the Illinois system could “address the problem of the indigent
defendant” because the Illinois courts could exercise discretion in setting the amount of the bond,
effectively reducing the bond to offset any fee. Id. at 849 – 50.
In Broussard v. Parish of Orleans, 318 F.3d 644 (5th Cir. 2003), the Fifth Circuit affirmed
the dismissal of a challenge to Louisiana statutes that required payment of a fee to obtain release
on bail. Id. at 647. The fee was $15, unless the fee was suspended by a judge. Id. Additionally,
the fee would be refunded on a finding of not guilty or dismissal of the charges. Id. Material to
the court’s analysis of the procedural due process claim was a record establishing that the various
parish statutes at issue were “capable of adequately providing a refund” or “some opportunity to
request that a judge suspend the fee.” Id. at 656.9 On the substantive due process analysis, the
court held that in light of Schilb, the fee for bail need only be reasonable and that the $15 fee
satisfied that standard. Id. at 657. Unlike the statutes at issue in Broussard, the Maine statute
permits a maximum fee of $60, but allows the bail commissioner to charge less, evidently based
on an exercise of discretion. 15 M.R.S. § 1023(5).

8

The fee described in the discussion in Payton was $33. 473 F.3d at 851.

9

However, in its concluding summary, the court did not identify the availability of a refund as a reason for its
affirmation of the district court’s dismissal of the case. Broussard, 318 F.3d at 663.

8

In Buckland v. County of Montgomery, 812 F.2d 146 (3d Cir. 1987), the Third Circuit
affirmed the dismissal of a challenge to Pennsylvania court rules related to a bail procedure that
authorized the county to retain a “reasonable charge relating to the costs of administering the
percentage cash bail program.” Id. at 147. Under that program, a detainee could deposit 10 percent
of the bail set, rather than satisfying bail by other means, but subject to payment of the fee. Id.
Depending on the county, the program set the fee at between 2 and 3 percent of the total bail. Id.
The plaintiffs paid fees ranging from $200 to $1,500. Id. The state courts had ruled that the fees
bore a reasonable relationship to the costs of administering the program. Id. at 147 – 48. The
Third Circuit found no basis on which to disagree, concluding that if a particular transaction
resulted in a greater cost than necessary, it was in any event cheaper than the bail bondsmen
alternative, was on the whole rational, and presumptively produced significant fees only where
there was also a more significant risk of bail jumping. Id. at 149.
In Markadonatos v. Village of Woodbridge, 760 F.3d 545 (7th Cir. 2014) (per curiam), the
Seventh Circuit affirmed a district court order dismissing a case in which the plaintiff paid a $30
booking fee following arrest on a charge of shoplifting and, allegedly, the charges against him
were dismissed without a guilty finding because of his satisfactory completion of a diversionary
program. Id. at 545 – 46.10

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The Court in Markadonatos was divided on the basis for the dismissal. Judges Posner, Flaum and Kanne, reasoned
that being “forced to pay even a small amount of money for being falsely arrested may present serious constitutional
issues,” but explained that the ability to obtain release on bail or bond to avoid jail time is a benefit rather than a
deprivation and that the $30 fee charged for this “service” was therefore lawful. Id. at 546 – 47. In their view the
right to bail is “a valuable right for which the person seeking it, whether guilty or innocent, must pay,” and they
concluded that this was the essential holding of both Schilb and Payton. Id. at 547. Judge Easterbrook, joined by
Judge Tinder, concluded that the statute actually imposed a $30 fee on all persons arrested, he reasoned that the fee
was constitutional only if the detainee was arrested on probable cause. Id. (concluding further that a loss of $30 does
not entail deprivation of a “fundamental” right). The dissent maintained that the ordinance must be understood to
impose an arrest fee because of the defendant’s “actual practice of collecting arrest fees.” Id. In light of this
understanding, the dissent determined that a “fee based on the unreviewable say-so of one police officer is an arbitrary
deprivation of property.” Id. at 568.

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b. Equal protection claim
“The Fourteenth Amendment’s Equal Protection Clause prohibits a state from treating
similarly situated persons differently because of their classification in a particular group.” MuleroCarrillo v. Roman-Hernandez, 790 F.3d 99, 105 – 106 (1st Cir. 2015), cert. denied, 136 S. Ct. 808
(2016). Generally, to state an equal protection claim, a plaintiff must allege facts capable of
supporting a plausible inference that “compared with others similarly situated, the plaintiff was
selectively treated based on impermissible considerations such as race, religion, intent to inhibit
or punish the exercise of constitutional rights, or malicious or bad faith intent to injure a person.”
Id. at 106 (quoting Barrington Cove Ltd. P’ship v. R.I. Hous. & Mortg. Fin. Corp., 246 F.3d 1, 7
(1st Cir. 2001)). Absent such facts, decisions related to a person’s rights, privileges, and benefits
under state law require only a rational basis. Id.
Here, Plaintiff has not alleged facts that might suggest selective treatment based on
impermissible considerations. In other words, Plaintiff has not alleged that the fee is applied
differently to him based on an unlawful reason. Plaintiff, therefore, has failed to state an equal
protection claim based on differential class-based treatment. Compare Schilb, 404 U.S. at 369 –
70 (considering an equal protection theory because the 1% fee discussed in Schilb would only be
imposed on those detainees who opted to secure their release by paying 10% of the bail amount).
See also Broussard v. Par. of Orleans, 318 F.3d 644, 654 (5th Cir. 2003) (“The fee provisions at
issue here apply to all arrestees, regardless of whether they enlist the services of a bail bondsmen
or use their own funds to pay bail. Thus, the fact that the Louisiana statutes fail to classify dooms
arrestees’ equal protection claims and prevents them from positively distinguishing their challenge
from the facts of Schilb, at least on equal protection grounds.”).

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c. Due process claim
Preliminarily, the authority discussed above establishes that the imposition of a modest
administrative fee does not constitute a constitutional violation. In this case, the Maine Bail Code
reflects that the $60 fee is paid as the bail commissioner’s fee. See 15 M.R.S. § 1023(5). In this
way, the fee is an administrative fee. Insofar as a bail commissioner is required, as in Plaintiff’s
case, to appear promptly at the jail to assess bail when a person is arrested outside of normal
business hours, the $60 fee cannot rationally be considered unreasonable.
In addition, even if the purpose and amount of the fee generate any constitutional concerns,
Plaintiff has failed to allege facts that would support a due process claim. The Supreme Court
“has recognized, on many occasions, that where a State must act quickly, or where it would be
impractical to provide predeprivation process, postdeprivation process satisfies the requirements
of the Due Process Clause.” Gilbert v. Homar, 520 U.S. 924, 930 (1997). Given that Plaintiff
complains that the fee was not returned after the criminal charges were dismissed, Plaintiff’s due
process claim can be fairly characterized as a challenge to the post-deprivation process (i.e., the
process that follows the payment of the fee). Plaintiff thus would have to demonstrate the absence
of an adequate post-deprivation process in order to sustain a constitutional challenge. See
Mickelson v. Cty. of Ramsey, No. 14-3164, 2016 WL 2342925, at *6 – 7 (8th Cir. May 4, 2016)
(concluding that county’s collection of a $25 booking fee did not violate due process where the
county provided a post-deprivation procedure through which individuals who were wrongfully
arrested, not charged, or not convicted could recover the booking fee).
In this case, Plaintiff has not asserted any facts to support the conclusion that the State of
Maine lacks a process by which a person can seek the return of the fee under certain circumstances.
Instead, he simply asserts that he cannot recover the fee because bail commissioners are immune
from suit. The immunity afforded bail commissioners does not mean that the state does not provide
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a post-deprivation process for Plaintiff to obtain the fee. Importantly, Plaintiff has not alleged that
he requested the fee from and was denied the fee by a person or entity one would reasonably expect
to be authorized to return the fee to him.11 Plaintiff, therefore, has not alleged facts to support a
due process claim based on an inadequate post-deprivation process.12
CONCLUSION
Based on the foregoing analysis, after a review in accordance with 28 U.S.C. § 1915(e)(2),
I recommend the Court dismiss Plaintiff’s complaint.
NOTICE
A party may file objections to those specified portions of a magistrate
judge’s report or proposed findings or recommended decisions entered pursuant to
28 U.S.C. § 636(b)(1)(B) for which de novo review by the district court is sought,
together with a supporting memorandum, within fourteen (14) days of being served
with a copy thereof. A responsive memorandum shall be filed within fourteen (14)
days after the filing of the objection.
Failure to file a timely objection shall constitute a waiver of the right to de
novo review by the district court and to appeal the district court’s order.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 20th day of July, 2016.

Plaintiff refers generally to the fee as “non-refundable,” but does not assert any facts to suggest that he asked for
and was denied the fee.

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12

Challenges to the constitutionality of a statute are generally characterized as either facial challenges or as-applied
challenges. Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 331 (2010). Because Plaintiff’s claim concerns
the availability of a refund following dismissal of the criminal prosecution, a matter that is not addressed in the Maine
Bail Code, his claim is an “as-applied” challenge. Although the distinction between as-applied and facial challenges
does not change the standard for pleading a claim, id., whether Plaintiff’s due process claim is construed as an asapplied challenge or a facial challenge, Plaintiff’s denial-of-a-refund claim requires an allegation that he pursued a
refund from the state that was denied on the ground that no such relief is permitted under Maine law.

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