BARNARD v. STATE OF MAINE et al
Filing
68
REPORT AND RECOMMENDED DECISION re 58 MOTION for Summary Judgment filed by BARTON TOKAS, TROY BIRES. Objections to R&R due by 4/5/2019. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JEFFREY PAUL BARNARD,
Plaintiff
v.
STATE OF MAINE, et al.
Defendants
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1:16-cv-00276-LEW
ORDER ON MOTIONS FOR COPIES AND TO APPOINT COUNSEL
AND RECOMMENDED DECISION ON DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
In this action, Plaintiff claims Defendants Troy Bires and Barton Tokas, police
officers employed by the City of Ellsworth, used excessive force during an encounter with
Plaintiff on May 31, 2014. (Amended Complaint at 1, ECF No. 16.) The matter is before
the Court on Defendants’ motion for summary judgment, (ECF No. 58), Plaintiff’s motion
for copies, (ECF No. 60), Plaintiff’s motion to delay summary judgment ruling, (ECF Nos.
60, 62, 63), Plaintiff’s motion for additional discovery, (ECF Nos. 60, 62, 63), Plaintiff’s
motion to amend the complaint, (ECF Nos. 60, 62, 63), and Plaintiff’s motion to appoint
counsel. (ECF Nos. 62, 63.)
Following a review and consideration of the parties’ submissions and the record, I
deny the motion for copies, deny the motion to delay summary judgment ruling, deny the
motion to amend the complaint, and deny the motion to appoint counsel. I also recommend
the Court grant in part and deny in part Defendants’ motion for summary judgment.
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I.
MOTION FOR COPIES, MOTION TO DELAY SUMMARY JUDGMENT RULING,
MOTION FOR DISCOVERY, AND MOTION TO AMEND COMPLAINT
Plaintiff requests that he be provided, at Defendants’ expense, copies of the
documents found in the first twenty-eight docket entries of this case because his own copies
of those documents, along with other legal materials and records, were lost or destroyed
when he was transferred from the Somerset County Jail to Federal Bureau of Prisons
custody. (Motion for Copies, ECF No. 60.) Plaintiff also moves for an extension or
“equitable tolling” of the discovery deadline and requests the Court delay ruling on the
summary judgment motion until after he has conducted additional discovery.
(Id.;
Plaintiff’s Response to Defendant’s Summary Judgment Motion at 13 – 16, 38, ECF No.
62, 63). Furthermore, Plaintiff seeks to amend his Amended Complaint to add claims for
retaliation and destruction of evidence against Defendants and other government actors.
(Id.; Plaintiff’s Response to Defendant’s Summary Judgment Motion at 14 – 17.)
“Rule 16(b) requires that the district court enter a scheduling order setting certain
deadlines,” including a deadline for the parties to amend the pleadings and a deadline for
discovery. Somascan, Inc. v. Philips Med. Sys. Nederland, B.V., 714 F.3d 62, 64 (1st Cir.
2013) (citing See Fed.R.Civ.P. 16(b)(1)). To obtain an amendment of the scheduling order,
a party must demonstrate “good cause.” Johnson v. Spencer Press of Maine, Inc., 211
F.R.D. 27, 30 (D. Me. 2002); El–Hajj v. Fortis Benefits Ins. Co., 156 F. Supp. 2d 27, 34
(D. Me. 2001); Fed. R. Civ. P. 16(b)(4). A court’s decision on good cause “focuses on the
diligence (or lack thereof) of the moving party more than it does on any prejudice to the
party-opponent.” Steir v. Girl Scouts of the USA, 383 F.3d 7, 12 (1st Cir. 2004).
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Rule 56(d) allows a court to permit discovery and “defer considering” a summary
judgment motion if “a nonmovant shows by affidavit or declaration that, for specified
reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d).
The party seeking delay or discovery “must (1) articulate a plausible basis for the belief
that discoverable materials exist which would raise a trialworthy issue, and (2) demonstrate
good cause for failure to have conducted the discovery earlier.” Price v. Gen. Motors
Corp., 931 F.2d 162, 164 (1st Cir. 1991).
Plaintiff fails to establish good cause to support his requests. Plaintiff maintains he
has been without the files since early 2017, but does not explain why he could not have
pursued discovery within the original deadline without the missing files, and offers no
explanation for his lengthy delay in bringing the issue to the Court’s attention.
Furthermore, Plaintiff does not explain how the documents would alter the Court’s
summary judgment analysis.
Plaintiff has also not shown good cause for another amendment to his complaint.
Plaintiff offers only bald and conclusory allegations to support his contention that
Defendants were involved in the events that allegedly caused Plaintiff to become separated
from his file materials. For that reason, Plaintiff has not established the necessary cause
for the amendment, nor a basis for Defendants to incur the cost of producing copies of the
docket entries. The Court, however, will direct the Clerk to forward to Plaintiff a copy of
the Court’s docket sheet in the case. If upon review of the docket sheet, Plaintiff determines
there are specific documents he needs, Plaintiff can renew his request, with a supporting
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explanation, for the documents. If Plaintiff files such a motion, the Court will assess
whether to order the production of the documents.
Finally, as part of his request to amend, Plaintiff seeks to join individuals who are
not currently parties to the case. Given the length of time this action has been pending, I
am not persuaded that the joinder of new parties at this stage of the proceedings is
warranted. To the extent Plaintiff believes he has a cause of action against any individuals
who are not parties to this case, Plaintiff can pursue the claims in separate action.
II.
MOTION TO APPOINT COUNSEL
Plaintiff asks the Court to “[a]ppoint professional counsel to represent this plaintiff
in this civil rights action at this time to allow him meaningful access to the courts.”
(Plaintiff’s Response to Defendant’s Summary Judgment Motion at 43, ECF No. 62, 63).
“There is no absolute constitutional right to a free lawyer in a civil case.”
DesRosiers v. Moran, 949 F.2d 15, 23 (1st Cir. 1991). The in forma pauperis statute
provides that the Court “may request an attorney to represent any person unable to afford
counsel.” 28 U.S.C. § 1915(e)(1). The appointment of counsel under the statute is
discretionary, but generally is limited to “exceptional circumstances.” DesRosiers, 949
F.2d at 23. “[A] court must examine the total situation, focusing, inter alia, on the merits
of the case, the complexity of the legal issues, and the litigant’s ability to represent
himself.”
Id. at 24.
For example, the presence of “readily mastered facts and
straightforward law” would suggest that a request for counsel “should be denied in a civil
case.” Id. Denial of an indigent plaintiff’s request for counsel is error only if the denial
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“was likely to result in fundamental unfairness impinging on his due process rights.” Id.
at 23.
This Court has already considered and denied an earlier motion to appoint counsel
for Plaintiff. (ECF Nos. 13, 18.) The Court reasoned that the law and facts relevant to
Plaintiff’s case are sufficiently straightforward so that Plaintiff would be able to represent
himself. Id. Plaintiff has not presented any reasons or new arguments that might change
the Court’s conclusion. Accordingly, Plaintiff’s motion for appointed counsel is denied.
III.
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
SUMMARY JUDGMENT STANDARD
“The court shall grant summary judgment if the movant shows that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter
of law.” Fed. R. Civ. P. 56(a). “After the moving party has presented evidence in support
of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with
respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact
reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st
Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir. 1998)).
A court reviews the factual record in the light most favorable to the non-moving
party, resolving evidentiary conflicts and drawing reasonable inferences in the nonmovant’s favor. Perry v. Roy, 782 F.3d 73, 77 (1st Cir. 2015). If a court’s review of the
record reveals evidence sufficient to support findings in favor of the non-moving party on
one or more of the Plaintiff’s claims, a trial-worthy controversy exists, and summary
judgment must be denied as to any supported claim. Id. (“The district court’s role is limited
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to assessing whether there exists evidence such that a reasonable jury could return a verdict
for the nonmoving party.” (internal quotation marks omitted)). Unsupported claims are
properly dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
SUMMARY JUDGMENT RECORD
When presented with a summary judgment motion, a court ordinarily considers only
the facts included in the parties’ statements of material facts, which statements must be
supported by citations to evidence of record. Federal Rule of Civil Procedure 56(c) and
District of Maine Local Rule 56(b) – (d) require the specific citation to record evidence.
In addition, Local Rule 56 establishes the manner by which parties must present their
factual statements and the evidence on which the statements depend. A party’s pro se status
does not relieve the party of the obligation to comply with the court’s procedural rules. 1
Ruiz Rivera v. Riley, 209 F.3d 24, 27 – 28 & n. 2 (1st Cir. 2000); Marcello v. Maine, 489
F. Supp. 2d 70, 77 (D. Me. 2007).
By rule, a party seeking summary judgment must file, in addition to its summary
judgment motion, a supporting statement of material facts setting forth each fact in a
separately numbered paragraph, with each factual statement followed by a citation to
evidence of record that supports the factual statement. D. Me. Loc. R. 56(b). A party
opposing a motion for summary judgment must file an opposing statement in which it
“[T]he Court is required to maintain a strict neutrality between opposing parties and even though a more
forgiving reading may be appropriate for a pro se party in the summary judgment context, it is also true that
‘[j]udges and magistrate judges who review these filings must be able to rely on procedural rules so as to
avoid becoming the lawyer for the unrepresented [party] or devoting an excessive portion of their time to
such cases.’” United States v. Baxter, 841 F. Supp. 2d 378, 383 (D. Me. 2012) (quoting Clarke v. Blais,
473 F. Supp. 2d 124, 129 (D. Me. 2007)).
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admits, denies, or qualifies the moving party’s statements by reference to each numbered
paragraph, with citations to supporting evidence, and in which it may set forth additional
facts, in separately numbered paragraphs, with citation to supporting evidence. D. Me.
Loc. R. 56(c). If an additional statement is introduced by the non-moving party, the moving
party must file a reply statement in which it admits, denies, or qualifies the non-moving
party’s additional statements by reference to each numbered paragraph, with citations to
supporting evidence. D. Me. Loc. R. 56(d).
“Facts contained in a supporting or opposing statement of material facts, if
supported by record citations as required by this rule, shall be deemed admitted unless
properly controverted.” D. Me. Loc. R. 56(f). Additionally, “[t]he court may disregard
any statement of fact not supported by a specific citation to record material properly
considered on summary judgment.” Id. Finally, “[t]he court shall have no independent
duty to search or consider any part of the record not specifically referenced in the parties’
separate statement of facts.” Id.
Nevertheless, the factual assertions contained in the verified pleadings and affidavits
filed by a pro se litigant generally will be considered in the review of a summary judgment
motion. That is, where a pro se litigant has failed to comply strictly with the summary
judgment rules, this Court has considered the sworn assertions of record. See Clarke v.
Blais, 473 F. Supp. 2d 124, 128 – 30 (D. Me. 2007) (“The First Circuit has not addressed
this notice debate directly, but has said, in the summary judgment context, that
unrepresented plaintiffs’ opposing affidavits and opposition papers are to be read
‘liberally.’” (citing Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir.
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1988), and Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir. 1980));
Demmons v. Tritch, 484 F. Supp. 2d 177, 182 – 83 (D. Me. 2007). The First Circuit has
determined that:
a verified complaint ought to be treated as the functional equivalent of an
affidavit to the extent it satisfies the standards explicated in Rule 56(e) (in
summary judgment milieu, affidavits “shall be made on personal knowledge,
shall set forth such facts as would be admissible in evidence, and shall show
affirmatively that the affiant is competent to testify to the matters stated
herein”)
Sheinkopf v. Stone, 927 F.2d 1259, 1262 (1st Cir. 1991) (citations omitted).
In this case, Plaintiff’s operative pleading, the amended complaint (ECF No. 16),
was filed under the penalty of perjury and Plaintiff’s attestation was notarized. In addition,
in his statement of disputed facts filed in response to the motion for summary judgment,
Plaintiff asserts additional facts under the penalty of perjury. (PRDSMF, ECF No. 64.)
Although Defendants challenge the sufficiency of the submissions, the declarations are in
substantial compliance with 28 U.S.C. § 1746 and Federal Rule of Civil Procedure
56(c)(4), and thus appropriate for the Court to consider.2
Defendants also challenge Plaintiff’s submissions as untimely. Defendants filed the motion for summary
judgment on November 7, 2018; Plaintiff filed his response, including his statement of disputed facts, on
December 20, 2018. As part of his response, Plaintiff asserts that his ability to respond to the motion was
hindered because his legal files have been destroyed. Without commenting on the merits of Plaintiff’s
contention that the defendants in this action were responsible for the destruction of the files, given that
Plaintiff is incarcerated, given that had Plaintiff requested an extension to file his response by December
20, the Court likely would have granted the request, and given that Defendants had the opportunity to file
a reply in response to Plaintiff’s submissions, I will consider Plaintiff’s submissions.
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FACTUAL AND PROCEDURAL BACKGROUND3
A.
The Parties
In the spring of 2014, Plaintiff and his wife were living in a thirty-foot travel trailer
parked on a property owned by James Thibodeau at 303 North Street, Ellsworth, Maine.
(Amended Complaint ¶ 11 – 12.) Pursuant to a verbal or “handshake” agreement, Plaintiff
installed a septic tank on the property, used a shop on the property, and acted as a caretaker
for the property. (Id.) The agreement also permitted Plaintiff to use a Kubota tractor. (Id.)
Plaintiff used the tractor to position the travel trailer close to the shop, and to pull the travel
trailer away from the shop so that he could hook up the trailer to the hitch on his truck. (Id.
¶ 15.) Plaintiff had a set of tractor keys. (DSMF ¶ 5.)
In the spring of 2014, Defendant Bires and Defendant Tokas were employed as City
of Ellsworth police officers. (DSMF ¶ 1.) On May 16 or 18, 2014, Defendant Tokas went
to the property at 303 North Street to address a dispute between Plaintiff and Mr. Thibodeau
about the tractor. (Amended Complaint ¶ 13; PRDSMF ¶ 5.) Defendant Tokas informed
Plaintiff and Mr. Thibodeau that their dispute was a civil matter and advised that one of
them should file a civil complaint to resolve the issue. (Amended Complaint ¶¶ 22 – 23;
PRDSMF ¶ 5.)
The following facts are drawn primarily from the Amended Complaint and Defendants’ statement of
material facts. (ECF No. 59, hereinafter “DSMF”.) Some of the facts asserted in the Amended Complaint
are also asserted in Plaintiff’s statement of disputed facts. (PRDSMF, ECF No. 64.) Where a genuine
dispute of fact exists between the parties, both versions are included, or the facts are recounted in the light
most favorable to Plaintiff.
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B.
The Attempt to Move the Tractor
On the morning of May 31, 2014, two men arrived at the property to load the tractor
onto a flat-bed truck. (Amended Complaint ¶ 16, PRDSMF ¶ 5.) Mr. Thibodeau had
apparently made a spare tractor key and given it to one of the men, James Jordan, in order
to move the tractor off the property. (Amended Complaint ¶ 15, PRDSMF ¶ 4 – 5.) When
one of the men started the tractor, Plaintiff tried to grab the key and shut the tractor down.
(Amended Complaint ¶ 16.) One of the men grabbed Plaintiff’s forearm; and Plaintiff
warned the man not to touch him. (Id.) Plaintiff subsequently “planted this person [into]
the tractor seat at chest level pinning him,” shut down the tractor, and removed the key
from the tractor. (Id.)
Plaintiff’s wife called 911 about the dispute between Mr. Thibodeau and Plaintiff
over the tractor. (PRDSMF ¶ 4.)
C.
The Confrontation with Defendant Bires
At approximately 8:30 a.m. on May 31, 2014, Defendant Bires was dispatched to
the property to address the dispute between Mr. Thibodeau and Plaintiff. (DSMF ¶ 3.)
Defendant Bires spoke to Mr. Jordan first, and then spoke to Plaintiff. (DSMF ¶ 4;
PRDSMF ¶ 4.) Plaintiff told Defendant Bires that Plaintiff had a verbal agreement, not a
written one, with Mr. Thibodeau for use of the tractor, and that he had taken the key out of
the tractor’s ignition so that the tractor could not be moved. (DSMF ¶¶ 5 – 6; PRDSMF ¶
5 – 6.) Defendant Bires then spoke with Mr. Thibodeau, who denied having any lease
agreement with Plaintiff. (DSMF ¶ 7.)
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Defendant Bires returned to Plaintiff’s trailer to speak with Plaintiff again, but
Plaintiff had gone inside the trailer. (Id. ¶ 8.) There was a fence for Plaintiff’s dog made
of wooden pallets that obstructed access to the trailer’s door, so Defendant Bires knocked
on the side of the trailer to get Plaintiff’s attention. (DSMF ¶ 9; PRDSMF ¶ 9.)
1.
Plaintiff’s Version of the Confrontation
Plaintiff asserts that the noise from Defendant Bires striking the travel trailer was so
loud that it startled Plaintiff and his wife, and caused his service dog to start barking.
(Amended Complaint ¶ 18.) Plaintiff went to the screen door of the trailer, where the dog
was standing, and grabbed her by the collar before opening the door. (Id.) Plaintiff leaned
his head out, holding the screen door with one hand and his dog with the other. (Id.)
As Plaintiff started to tell Defendant Bires that he would come out, Defendant Bires
pulled out his service pistol and pointed it at Plaintiff’s head, screaming at Plaintiff to show
his other hand. (Id.) Plaintiff said, “You know I am holding my dog.” (PRDSMF ¶ 13.)
Plaintiff told his wife to grab the dog because the officer had a gun pointed at his head;
Defendant Bires screamed even louder, “Show me your f*****g hand now!” (Amended
Complaint ¶ 19.) As his wife took the dog, Plaintiff responded, “Easy, easy, I’m bringing
my other hand out right now real slowly.” (Id.) Plaintiff slowly brought his other hand out
to show Defendant Bires and stepped down one stair, exposing his whole body so that
Defendant Bires could see that he had no weapons. (Id.)
Defendant Bires continued yelling at Plaintiff, ordering him to hand over the tractor
key. (Id.) Plaintiff interpreted this as an attempt to threaten and intimidate him. (Id.)
Plaintiff responded, “No, I will not give you the key, I already explained to you that this
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was a civil matter.” (Id.) Defendant Bires screamed even louder, telling Plaintiff that if
Plaintiff did not give Defendant Bires the key, he would come into the home, get the key,
and arrest Plaintiff for theft and assault. (Id.) Defendant Bires kept his gun pointed at
Plaintiff during this exchange. (Id.)
Plaintiff became angry and started yelling at Defendant Bires, stepping down to the
ground and facing the officer, who was about fifteen feet away. (Id. ¶ 20.) Plaintiff
repeated that he would not turn over the tractor key. (Id.) Plaintiff pointed to the middle
of his own forehead and yelled, “Take your best shot. F**k you. I will not give you the
key, I told you this is a civil matter.” (Id.)
Defendant Bires placed his weapon back into his holster, turned, and walked away
from Plaintiff, yelling that he would be back. (Id. ¶ 21.) Plaintiff asserts Defendant Bires
pointed his gun at Plaintiff for more than five minutes during the confrontation. (PRDSMF
¶ 19.)
2.
Defendant Bires’ Version of the Confrontation4
According to Defendant Bires, when Plaintiff came to the door, Defendant Bires
told Plaintiff that he would be charged with theft if he did not return the tractor keys, at
which point “Plaintiff became very agitated and sent his dog out of the camper to get
Defendant Bires.” (DSMF ¶ 11.) The dog ran outside, growling at Defendant Bires.5 (Id.
Defendant Bires’ version is recounted to illustrate the factual dispute. Because summary judgment
requires the Court to view contested facts in the light most favorable to the non-movant, I assess the motion
for summary judgment based on Plaintiff’s version of the events.
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According to Plaintiff, his dog was growling at the door because she was startled by the loud noise from
Defendant Bires striking the side of the trailer, but Plaintiff did not send his dog to attack Defendant Bires
and his dog never ran outside at Defendant Bires. (PRDSMF ¶¶ 12 – 13.)
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¶ 12.)
When Defendant Bires saw Plaintiff standing in the doorway of the trailer
concealing his right hand from view, Defendant Bires ordered Plaintiff to show his hands.
(Id. ¶ 13.) Plaintiff responded by saying, “No, f**k you, shoot me.” (Id. ¶ 14.) Because
Defendant Bires believed Plaintiff might be holding a weapon in his concealed hand,
Defendant Bires sought cover and drew his service pistol, continuing to give commands to
Plaintiff to show his hands. (Id. ¶ 15.)
Plaintiff ignored Defendant Bires’ commands to show his hands and repeatedly told
Defendant Bires to shoot him. (Id. ¶ 17.) Defendant Bires maintains that Plaintiff never
showed his right hand to Defendant Bires before going back inside the trailer, that
Defendant Bires had his pistol drawn for approximately one minute, and that Defendant
Bires never aimed the pistol at Plaintiff’s head. (Id. ¶¶ 18 – 19.)
D.
The Confrontation with Defendant Tokas
Defendant Bires returned to his cruiser to request backup, and Defendant Tokas
responded to the scene. (DSMF ¶ 20.) Mr. Jordan informed Defendant Tokas that as he
started the tractor, Plaintiff pulled the key out of the ignition. (Id. ¶ 21.) Defendant Bires
also advised Defendant Tokas that Plaintiff was very agitated, that Plaintiff might have a
weapon in the trailer, that Plaintiff had refused to show his hands to Defendant Bires, and
that Defendant Bires had drawn his pistol as a result. (Id. ¶¶ 22 – 23.)
Because Defendant Tokas had interacted with Plaintiff previously and believed he
had established a good rapport with him, Defendant Tokas went to the trailer to attempt to
defuse the situation and convince Plaintiff to return the tractor key. (Id. ¶ 24.)
When
Defendant Tokas spoke with Plaintiff at the doorway of the trailer, Plaintiff denied
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Defendant Tokas’ request to return the tractor key. (Id. ¶ 25.) Defendant Tokas warned
Plaintiff that he would be charged with theft if he did not return the key. (Id. ¶ 26.) Plaintiff
reiterated that he considered the dispute to be a civil matter. (Amended Complaint ¶ 23.)
At the end of his earlier confrontation with Defendant Bires, Plaintiff had picked up
a five-gallon gas can and brought it into the trailer. (Amended Complaint ¶ 21.) While
speaking with Defendant Tokas, Plaintiff picked up the gas can, pointed to it with his other
hand, and told Defendant Tokas, “Nobody is coming into my home, I’m not kidding.”
(PRDSMF ¶ 30.) Plaintiff said, “I’ve told you, I’m not giving you the tractor key, and if
you all try to come into my home and attempt taking it by force, I will use this to stop you.”
(Amended Complaint ¶ 23.) Defendant Tokas replied, “Look, you don’t want to do this,
all you’re going to accomplish is a police standoff, and it will not turn out good for you.”
(Id.) Plaintiff slammed the door. (Id.; DSMF ¶ 31.)
E.
The Standoff
Defendant Tokas cleared residents from nearby homes and police officers formed a
perimeter around Plaintiff’s residence. (DSMF ¶¶ 32 – 34.) Officers made telephone
contact with Plaintiff inside the trailer while waiting for a tactical team to arrive to take
over the scene. (Id. ¶ 34.) Defendant Bires left the scene to prepare requests for a search
warrant and an arrest warrant, which requests were approved by a Justice of the Peace. (Id.
¶ 36.) Defendant Tokas remained at the scene monitoring the situation. (Id. ¶ 38.)
Defendant Bires went off duty at approximately 9:00 p.m. on May 31, 2014 and had
no further involvement in the standoff. (Id. ¶ 37.) Defendant Tokas left the scene at
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approximately 8:40 p.m. on May 31, 2014 and had no further involvement in the standoff.
(Id. ¶ 38.)
Throughout the night of May 31 and into the morning of June 1, police officers tried
to end the standoff by various methods, including using a robot to break a window, and
approaching the trailer in an armored vehicle to introduce a smoke box into the trailer.
(Amended Complaint ¶ 24; Order at 12 – 13, ECF No. 50.) At approximately 3:30 a.m. or
4:30 a.m. on June 1, as the trailer filled with smoke, Plaintiff exited the trailer holding a
rifle and raised it at the police officer who inserted the smoke box into the trailer. (Order
at 12 – 13, ECF No. 50.) Another police officer shot Plaintiff, striking him in the head.
(Amended Complaint ¶ 23 – 24.)
F.
Legal Proceedings
On June 7, 2016, Plaintiff pled guilty to a felon in possession of a firearm charge
based on his possession of a rifle. United States v. Barnard, (Minute Entry, ECF No. 234),
1:14-cr-0088-JAW. The Court imposed a sentence that included seventy-eight months of
incarceration. United States v. Barnard, (Judgment, ECF No. 279), 1:14-cr-00088-JAW.
Plaintiff initiated this action by depositing the complaint into an institutional
mailbox on June 1, 2016. (DSMF ¶ 44.) Plaintiff’s complaint was docketed on June 3,
2016, (ECF No. 1), and an amended complaint was docketed on August 19, 2016. (ECF
No. 16.)
Plaintiff alleged that police officers and state entities violated his Fourth
Amendment rights during the conflict, and Plaintiff asserted that other state actors
subsequently violated his Eighth Amendment rights during his time in prison. In a series
of orders after review of Plaintiff’s claim pursuant to 28 U.S.C. §§ 1915 & 1915A, and in
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response to a motion to dismiss, the Court dismissed all defendants and claims except the
claims against Defendants Bires and Tokas. (ECF Nos. 4, 14, 29, 50.)
SUMMARY JUDGMENT DISCUSSION
A.
Excessive Force
The Fourth Amendment prohibits unreasonable searches and seizures and provides
that no warrant shall issue except on a showing of probable cause. U.S. Const. amend. IV.
Excessive force claims are evaluated under the Fourth Amendment’s “objective
reasonableness” standard. Graham v. Connor, 490 U.S. 386, 388 (1989). “Determining
whether the force used to effect a particular seizure is ‘reasonable’ under the Fourth
Amendment requires a careful balancing of ‘the nature and quality of the intrusion on the
individual’s Fourth Amendment interests’ against the countervailing governmental
interests at stake.” Id. at 396 (some internal quotation marks omitted) (quoting United
States v. Place, 462 U.S. 696, 703 (1983)). In the context of force applied to make an
arrest, the relevant factors for consideration include “the severity of the crime at issue,
whether the suspect poses an immediate threat to the safety of the officers or others, and
whether he is actively resisting arrest or attempting to evade arrest by flight.” Id. (the socalled Graham factors).
“The ‘reasonableness’ of a particular use of force must be judged from the
perspective of a reasonable officer on the scene, rather than with the 20/20 vision of
hindsight.” Graham, 490 U.S. at 396. A court’s assessment must also account for the fact
that “police officers are often forced to make split-second judgments—in circumstances
that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary
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in a particular situation.” Id. at 396 – 97. The test is an objective one: courts ask “whether
the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Id. at 397.
1.
Fourth Amendment Claim Against Defendant Tokas
According to Plaintiff’s version of events, Defendant Tokas did not use any force
during their encounter on the morning of May 31, 2014. Furthermore, because this Court’s
prior rulings prohibit Plaintiff from challenging the reasonableness of the shooting, (Order,
ECF No. 50), to the extent Plaintiff contends Defendant Tokas contributed to the shooting,
Plaintiff’s claim fails.6
2.
Fourth Amendment Claim Against Defendant Bires
a.
Defendant Bires Seizure of Plaintiff
“To make out a Fourth Amendment excessive force claim, a plaintiff must show, as
an initial matter, that there was a seizure within the meaning of the Fourth Amendment,
and then that the seizure was unreasonable.” Stamps v. Town of Framingham, 813 F.3d
27, 35 (1st Cir. 2016). “A Fourth Amendment seizure occurs when a police officer ‘has in
some way restrained the liberty of a citizen’ through ‘physical force or show of authority.’”
United States v. Camacho, 661 F.3d 718, 725 (1st Cir. 2011) (quoting Terry v. Ohio, 392
U.S. 1, 20 n.16 (1968)). “To determine whether an officer has restricted an individual’s
freedom of movement, courts determine the ‘coercive effect of the encounter’ by asking
6
For the same reason, Defendant Tokas would also be entitled to summary judgment on the state law claim
for assault, even if that claim were not barred by the statute of limitations. See supra part A-3.
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whether ‘a reasonable person would feel free to decline the officers’ requests or otherwise
terminate the encounter.’” Id. (quoting Brendlin v. California, 551 U.S. 249, 255 (2007)).
Examples of circumstances that might indicate a seizure, even where the
person did not attempt to leave, would be the threatening presence of several
officers, the display of a weapon by an officer, some physical touching of the
person of the citizen, or the use of language or tone of voice indicating that
compliance with the officer's request might be compelled.
United States v. Mendenhall, 446 U.S. 544, 554 (1980). “The show of authority effects a
seizure only when the defendant actually yields or submits to the show of authority.”
United States v. Fields, 823 F.3d 20, 25 (1st Cir. 2016) (citing California v. Hodari D., 499
U.S. 621, 628–29(1991)).
Defendant Bires argues that he did not seize Plaintiff because Plaintiff refused to
comply with Defendant Bires’ orders. According to Plaintiff’s version of the encounter,
Defendant Bires drew his weapon, pointed the weapon at Plaintiff’s head, and told Plaintiff
to reveal his other hand. Plaintiff asserts he submitted to the show of authority by slowly
revealing his hand and stepping out of his trailer in order to show Defendant Bires that he
did not have a weapon. Given the display of the weapon and the nature of the confrontation
as asserted by Plaintiff, which included Defendant Bires directing orders to Plaintiff,
Plaintiff ultimately following Defendant Bires’ command to show his other hand, and
Plaintiff exiting the trailer, the encounter can reasonably be construed as “a seizure rather
than a consensual encounter.” Camacho, 661 F.3d at 725.
b.
Defendant Bires’ Use of his Service Pistol
Under certain circumstances, police use of force “may be unreasonable under the
Fourth Amendment even if officers do no more than threaten the occupants with firearms.”
18
Terebesi v. Torreso, 764 F.3d 217, 240 (2d Cir. 2014). “[P]ointing a loaded gun at a
suspect, employing the threat of deadly force, is use of a high level of force.” Espinosa v.
City & Cty. of San Francisco, 598 F.3d 528, 537 (9th Cir. 2010). “While police are not
entitled to point their guns at citizens when there is no hint of danger, they are allowed to
do so when there is reason to fear danger.” Baird v. Renbarger, 576 F.3d 340, 346 (7th
Cir. 2009). “The display of weapons, and the pointing of firearms directly at persons
inescapably involves the immediate threat of deadly force. Such a show of force should
be predicated on at least a perceived risk of injury or danger to the officers or others, based
upon what the officers know at that time.” Holland ex rel. Overdorff v. Harrington, 268
F.3d 1179, 1192 – 93 (10th Cir. 2001); see also Mlodzinski v. Lewis, 648 F.3d 24, 37 – 40
(1st Cir. 2011) (applying the Graham factors to an officer’s conduct in pointing a weapon);
Stamps, 813 F.3d at 40 – 41 (same).
Defendant Bires contends the nature and duration of the encounter, including that
Plaintiff did not reveal his other hand and that the entire exchange took less than one
minute, establishes the reasonableness of his conduct. If Defendant Bires’ account was
uncontroverted on the record, Defendant’s argument for summary judgment might be
persuasive. According to Plaintiff, however, Defendant Bires pointed his gun at Plaintiff’s
head almost immediately after Plaintiff opened the trailer door and continued to do so after
Plaintiff showed his other hand, exited the trailer, and demonstrated that he did not have a
weapon. Plaintiff asserts Defendant Bires displayed the weapon for approximately five
minutes. Furthermore, the subject matter that prompted police involvement did not suggest
an obvious safety concern. The matter (i.e., the dispute regarding the tractor) was relatively
19
minor and arguably, as Defendant Tokas reportedly informed Plaintiff and Mr. Thibodeau,
was a civil matter. See Robinson v. Solano Cty., 278 F.3d 1007, 1014 (9th Cir. 2002)
(finding that pointing a gun at a plaintiff’s head constituted excessive force because “[t]he
crime under investigation was at most a misdemeanor; the suspect was apparently unarmed
and approaching the officers in a peaceful way”).7
Moreover, under Plaintiff’s version of the facts, even assuming that Defendant
Bires’ decision to display his weapon was initially reasonable, Defendant Bires’ decision,
as alleged by Plaintiff, to point his gun at Plaintiff after Plaintiff had revealed his other
hand and stepped out of the trailer to reveal that he did not have a weapon, could be
considered unreasonable. See Mlodzinski, 648 F.3d at 39 (“And the gun pointed at Tina
was not, on her version, lowered as soon as it was clearly safe to do so.”) Los Angeles Cty.,
California v. Rettele, 550 U.S. 609, 615 (2007) (deploying force “any longer than
necessary” can render a search unreasonable); Stiegel v. Peters Twp., 600 F. App’x 60, 67
(3d Cir. 2014) (no Fourth Amendment violation because officer only drew his weapon “for
a short amount of time and holstered it once the situation was under control”). If a fact
finder accepts Plaintiff’s version as credible, the fact finder could reasonably conclude
Defendant Bires’ continuing use of the weapon was excessive. “Where a person has
Plaintiff’s subsequent threat to use gasoline and his resistance to arrest would support Defendant Bires’
argument that Plaintiff was noncompliant and represented a danger to Defendant Bires’ safety. Defendant
Tokas also asserts Plaintiff told Defendant Tokas that he had caused a prolonged police standoff previously.
DSMF ¶ 28. Defendant Bires’ actions, however, must be analyzed from the perspective of a reasonable
officer at the time, “rather than with the 20/20 vision of hindsight.” Graham, 490 U.S. at 396. The record
does not establish that Defendant Bires was aware of those alleged facts when he pointed the gun at Plaintiff
in the manner Plaintiff described.
7
20
submitted to the officers’ show of force without resistance, and where an officer has no
reasonable cause to believe that person poses a danger to the officer or to others, it may be
excessive and unreasonable to continue to aim a loaded firearm directly at that person, in
contrast to simply holding the weapon in a fashion ready for immediate use.” Holland,
268 F.3d at 1192 – 93.
In sum, in this case, when the facts are viewed most favorably to Plaintiff, a fact
finder could reasonably conclude that even if the initial display of the gun was reasonable,
Defendant Bires’ display of the gun for the duration and under the circumstances alleged
by Plaintiff, including after Plaintiff showed his other hand and exited the trailer and while
Defendant Bires demanded the key to the tractor,8 was unreasonable.
c.
Qualified Immunity
A government official is entitled to qualified immunity unless she or he violates a
constitutional right that was “clearly established” when they engaged in the conduct at
issue. Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014). “Qualified immunity shields an
officer from suit when she makes a decision that, even if constitutionally deficient,
reasonably misapprehends the law governing the circumstances she confronted.” Brosseau
v. Haugen, 543 U.S. 194, 198 (2004) (citing Saucier v. Katz, 533 U.S. 194, 206 (2001)).
“This strain of immunity aspires to ‘balance [the] desire to compensate those whose rights
are infringed by state actors with an equally compelling desire to shield public servants
8
According to Plaintiff, Defendant Bires continued to point his gun at Plaintiff while demanding the key
to the tractor after Plaintiff had shown his hands, exited the trailer, and demonstrated that he did not have a
weapon. (Amended Complaint ¶¶ 18-19; PRDSMF ¶ 18-19.)
21
from undue interference with the performance of their duties and from threats of liability
which, though unfounded, may nevertheless be unbearably disruptive.’” Cox v. Hainey,
391 F.3d 25, 29 (1st Cir. 2004) (quoting Buenrostro v. Collazo, 973 F.2d 39, 42 (1st Cir.
1992)).
Defendants’ claim to qualified immunity requires a court to assess: (1) “whether the
facts, taken most favorably to the party opposing summary judgment, make out a
constitutional violation” and (2) “whether the violated right was clearly established at the
time that the offending conduct occurred.” Ford v. Bender, 768 F.3d 15, 23 (1st Cir. 2014).
When a court considers whether the constitutional right was clearly established at the time,
the court must determine (a) “whether the contours of the right, in general, were sufficiently
clear,” and (b) “whether, under the specific facts of the case, a reasonable defendant would
have understood that he was violating the right.” Id.
The constitutional prohibition against the use of excessive force has long been
clearly established. See, e.g., Morelli, 552 F.3d 12, 23 – 24 (1st Cir. 2009) (describing the
law in this area as “crystal clear”). The qualified immunity analysis, however, requires a
consideration of the particularized facts of the case, not broad general propositions. Hunt,
773 F.3d at 368. Thus, “the relevant question is not whether the Fourth Amendment
generally prohibited excessive force.”
Id.
“[T]he clearly established law must be
‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017). “Such
specificity is especially important in the Fourth Amendment context, where the Court has
recognized that ‘[i]t is sometimes difficult for an officer to determine how the relevant legal
doctrine, here excessive force, will apply to the factual situation the officer confronts.’”
22
Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam) (quoting Saucier v. Katz, 533
U.S. 194, 205 (2001)). “To be clearly established, the contours of this right must have been
‘sufficiently definite that any reasonable official in the defendant’s shoes would have
understood that he was violating it.’” Id. (quoting Plumhoff v. Rickard, 134 S. Ct. 2012,
2023 (2014)). “In other words, ‘existing precedent must have placed the ... constitutional
question beyond debate.’” Id. (quoting Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011)).
“[I]mmunity protects all but the plainly incompetent or those who knowingly violate the
law.” White, 137 S. Ct. at 551 (citation and internal quotation marks omitted).
Case law from the First Circuit and nearly every other circuit “plainly put police
officers . . . on notice that pointing a firearm at a person in a manner that creates a risk of
harm incommensurate with any police necessity can amount to a Fourth Amendment
violation.” Stamps, 813 F.3d at 42; see also, Robinson, 278 F.3d at 1015 (although the
right was not clear in 1995, “[t]he development of the law with respect to arrests and
detentions now allows us to recognize as a general principle that pointing a gun to the head
of an apparently unarmed suspect during an investigation can be a violation of the Fourth
Amendment, especially where the individual poses no particular danger”); Checki v. Webb,
785 F.2d 534, 538 (5th Cir. 1986) (a police officer that unjustifiably “brandish[es] a cocked
gun in front of that civilian’s face may not cause physical injury, but he has certainly laid
the building blocks for a section 1983 claim against him”).
The law also was clearly established that even if the initial display of a firearm might
be reasonable, the continue display of the weapon after the perceived risk had been
mitigated could be unreasonable. In Mlodzinski v. Lewis, 648 F.3d 24 (1st Cir. 2011) and
23
Stamps v. Town of Framingham, 813 F.3d 27 (1st Cir. 2016), the First Circuit denied
qualified immunity at summary judgment to law enforcement officers who aimed their
weapons at unarmed citizens after it became clear that the citizens did not present a threat,
Mlodzinski v. Lewis, 648 F.3d 24 (1st Cir. 2011) and Stamps v. Town of Framingham, 813
F.3d 27 (1st Cir. 2016). Defendant Bires attempts to distinguish the cases in part by noting
that the plaintiffs in Mlodzinski and Stamps were bystanders, whereas Plaintiff was a
suspect. While the status of the plaintiffs was a factor in the First Circuit’s reasoning, the
court’s reasoning does not suggest the fact was determinative. Indeed, in other cases where
an officer pointed a weapon at a suspect of an investigation, other courts conducted the
same inquiry that the First Circuit applied to bystanders in Mlodzinski and Stamps. See
Stiegel v. Peters Twp., 600 F. App’x 60, 66 (3d Cir. 2014); Baird, 576 F.3d at 343;
Robinson, 278 F.3d 1007, 1014 (9th Cir. 2002).
Defendant Bires also contends that the cases are distinguishable because he is
alleged to have displayed his weapon for a shorter period of time. For instance, in
Mlodzinski, a plaintiff was held at gunpoint for seven to ten minutes, a longer period than
the five minutes alleged here. Mlodzinski does not suggest a meaningful distinction
between five and seven minutes. The First Circuit’s logic centered on the fact that the
officers kept their weapons pointed “far beyond the time it took” to determine whether
there was a danger requiring the threat of imminent use of deadly force. Mlodzinski, 648
F.3d at 38; see also, Barton v. Clancy, 632 F.3d 9, 21 – 22 (1st Cir. 2011) (“This does not
mean that an official action is protected by qualified immunity unless the very action in
question has previously been held unlawful, but rather that in the light of pre-existing law
24
the unlawfulness must be apparent”) (internal quotation marks omitted); Hall v. Ochs, 817
F.2d 920, 925 (1st Cir. 1987) (“The fact that no court had put these pieces together in the
precise manner we do today does not absolve defendants of liability”). The specific amount
of time the weapon is displayed is not controlling – the established Fourth Amendment
standard is whether the display of force continued “any longer than necessary.” Rettele,
550 U.S. at 615. While “qualified immunity can protect officers from litigation based on
misjudgments about where lies the ‘sometimes hazy border between excessive and
acceptable force,’” Defendant Bires’ alleged delay was not substantially closer to the hazy
boundary than the officers in Mlodzinski. See Asociacion De Periodistas De Puerto Rico
v. Mueller, 680 F.3d 70, 81 (1st Cir. 2012) (quoting Saucier v. Katz, 533 U.S. 194, 206
(2001)).
Under Plaintiff’s version of the facts, Defendant Bires aimed his weapon at
Plaintiff’s head immediately upon Plaintiff’s appearance at the trailer door, and he
continued to point his gun at Plaintiff after Plaintiff had shown his hands, exited the trailer,
and demonstrated that he did not have a weapon. In addition, and not insignificantly,
Plaintiff asserts Defendant Bires continued to point the gun at him as he ordered Plaintiff
to give him the tractor key. Plaintiff’s possession of the tractor key did not present concern
for Defendant Bires’ safety. If believed, the facts alleged by Plaintiff could support a
finding that Defendant Bires violated a clearly established constitutional right (i.e., to be
free from excessive force in the form of a pointed gun in a situation in which any safety
25
concern had been alleviated and no other reason for the display and threat of force existed).
Defendant Bires, therefore, is not entitled to qualified immunity.9
3.
State Law Tort Claim
Plaintiff also asserts a claim against Defendants for the tort of assault under Maine
law. (Amended Complaint ¶ 58.) The Maine Tort Claims Act (MTCA), 14 M.R.S. §§
8101–8118, applies a policy of broad liability for the conduct of governmental employees,
subject to several enumerated limitations and exceptions. See Carroll v. City of Portland,
1999 ME 131, ¶ 6, 736 A.2d 279, 282. One MTCA limitation is that “[e]very claim against
a governmental entity or its employees permitted under this chapter is forever barred from
the courts of this State, unless an action therein is begun within 2 years after the cause of
action accrues.” 14 M.R.S. § 8110. When state law governs a claim adjudicated in federal
court, the federal court applies the relevant state’s statute of limitations, including its
accrual rules. Quality Cleaning Prod. R.C., Inc. v. SCA Tissue N. Am., LLC, 794 F.3d 200,
205 (1st Cir. 2015).
“[A] cause of action in tort is deemed to accrue when the plaintiff sustains a
judicially cognizable injury: the moment when a wrongful act produces an injury for which
the plaintiff is entitled to seek judicial vindication.” Myrick v. James, 444 A.2d 987, 994
(Me. 1982) (superseded by statute on other grounds). Here, the incident began in the
morning hours of May 31, 2014, and the Defendants went off duty that same evening. The
In similar situations, the First Circuit has reiterated that a “denial of immunity on plaintiffs’ version of the
events” at the summary judgment stage “leaves these claims for trial, where defendants may try to persuade
the jury that they did not do what they are accused of doing.” Mlodzinski, 648 F.3d at 40; Stamps, 813 F.3d
at 42.
9
26
only conduct that might give rise to liability for assault was Defendant Bires’ pointing his
service pistol at Plaintiff on the morning of May 31, 2014. The record reflects Plaintiff
forwarded the complaint to the Court on June 1, 2016.
Plaintiff cannot rely on the ultimate shooting early in the morning of June 1, 2014,
as a basis for a state tort claim. Under Maine law, defendants are only liable for harms
“proximately caused” by their wrongful actions. Webb v. Haas, 1999 ME 74, ¶ 20, 728
A.2d 1261, 1267. “Proximate cause” refers to “that cause which, in natural and continuous
sequence, unbroken by an efficient intervening cause, produces the injury, and without
which the result would not have occurred.” Id. (internal quotation marks omitted). An
intervening cause of a plaintiff’s harm is called a superseding cause, severing a defendant’s
liability, when the intervening cause is “neither anticipated nor reasonably foreseeable.”
Ames v. Dipietro-Kay Corp., 617 A.2d 559, 561 (Me. 1992).
The conduct that plausibly supports an excessive force claim against Defendant
Bires is Defendant Bires’ display of his weapon on May 31, 2014; importantly, it is not the
shooting by another officer on June 1, 2014. Plaintiff’s state law claim arose, if at all, on
May 31, 2014. Plaintiff did not initiate this lawsuit until June 1, 2016, one day after the
statute of limitations period elapsed. Accordingly, any state law claim is barred by the
MTCA’s two-year statute of limitations, and Defendants are entitled to summary judgment
on the state law claim. See United States v. Marcello, 212 F.3d 1005, 1010 (7th Cir. 2000)
(denying a claim because it was filed one day later than permitted under the statute of
limitations) (cited approvingly in Lattimore v. Dubois, 311 F.3d 46, 54 (1st Cir. 2002)).
27
CONCLUSION
Based on the foregoing analysis, I deny without prejudice Plaintiff’s motion for
copies (ECF No. 60), but order the Clerk to forward to Plaintiff a copy of the Court’s docket
sheet in the case; I deny Plaintiff’s request to delay summary judgment ruling, (ECF Nos.
60, 62, 63); I deny Plaintiff’s request for discovery, (ECF Nos. 60, 62, 63); I deny Plaintiff’s
motion to amend the complaint, (ECF Nos. 60, 62, 63); and I deny Plaintiff’s motion to
appoint counsel, (ECF Nos. 62, 63.) In addition, I recommend the Court deny Defendants’
motion for summary judgment on the federal claim against Defendant Bires based on
Plaintiff’s assertion regarding Defendant Bires’ use of his service pistol during his
encounter with Plaintiff on May 31, 2014. I recommend the Court grant the motion for
summary judgment on all other claims. (ECF No. 58.)
NOTICE
Any objections to an order issued herein shall be filed, in accordance
with Federal Rule of Civil Procedure 72, within 14 days of being served with
a copy of the order.
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 22nd day of March, 2019.
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