PLOURDE v. HIGGINS et al

Filing 79

REPORT AND RECOMMENDED DECISION re 62] MOTION to Dismiss for Failure to State a Claim, 68 MOTION to Dismiss, Moot or Strike. Objections to R&R due by 3/24/2025. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
GLEN PLOURDE,
Plaintiff
v.
EDWIN LEWIS, et al.,
Defendants

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1:23-cv-00323-JAW

RECOMMENDED DECISION ON MOTION TO DISMISS
In this action, Plaintiff alleges the City of Bangor, the Bangor Police Department,
and Bangor Police Department Officers Edwin Lewis, Shannon Davis, Nick Huggins,
Daniel Gastia, and Dustin Dow violated his state and federal constitutional rights.
Defendants have moved to dismiss the complaint. (Motion to Dismiss, ECF No. 62.)
Through their motion, Defendants argue (i) Plaintiff failed to state an actionable
claim against the City of Bangor and the Bangor Police Department; (ii) Defendants
Huggins, Lewis, and Davis did not violate Plaintiff’s Fourth Amendment rights on August
21, 2017, as alleged; (iii) qualified immunity precludes Plaintiff’s claims; (iv) Plaintiff has
not sufficiently pled an Equal Protection claim; (v) Plaintiff’s claims against Defendants
Gastia and Dow are barred by the statute of limitations; and (vi) as to the individual
defendants, there is insufficient process and insufficient service of process. (Id. at 5–13.).
As part of his response to the motion to dismiss, Plaintiff filed a motion to dismiss, moot,
or strike the motion to dismiss. (Motion to Strike, ECF No. 68.)

After consideration of the parties’ arguments, I recommend the Court grant in part
Defendants’ motion to dismiss. I also recommend the Court dismiss Plaintiff’s motion to
dismiss, moot, or strike Defendants’ motion to dismiss.
FACTUAL BACKGROUND
The following facts are derived from Plaintiff’s Third Amended Complaint. A court
evaluating a motion to dismiss “accept[s] as true the complaint’s well-pleaded factual
allegations, and draws all reasonable inferences in favor of the non-moving party.” See
McKee v. Cosby, 874 F.3d 54, 59 (1st Cir. 2017).
A.

August 21, 2017, Incident
According to Plaintiff, during the afternoon of August 21, 2017, while he was alone

in his apartment, Defendants Huggins, Lewis, and Davis arrived. (Third Amended
Complaint ¶¶ 14, 16, ECF No. 58.)

Plaintiff alleges the officers did not identify

themselves, explain why they were there, or have a search warrant. (Id. ¶¶ 17–19.) Plaintiff
asserts that an unknown individual removed an interior screen of an open window adjacent
to Plaintiff’s front door, reached into Plaintiff’s apartment, unlocked his front door from
the inside, and opened his front door from the outside. (Id. ¶ 21.) The officers then entered
Plaintiff’s apartment. (Id. ¶ 22.)
Plaintiff alleges he was naked at the time due to a heating problem in his apartment.
(Id. ¶ 24.) Prior to the officers entering his apartment, Plaintiff had been napping on the
floor and he remained on the floor after the officers entered his apartment. (Id. ¶¶ 25, 27.)
As the officers entered the apartment, they left the front door wide open, allowing a crowd
to gather to observe what occurred in the apartment. (Id. ¶¶ 28–29.)
2

Plaintiff alleges the officers stated they thought Plaintiff was bleeding and ordered
Plaintiff to stand up, put his arms over his head, and rotate in a circle. (Id. ¶ 30.) Plaintiff
maintains that after the officers determined that Plaintiff was not bleeding or injured, they
stated they were concerned about Plaintiff’s mental health. (Id. ¶ 35.) At this point, the
officers began to ask Plaintiff the same question repeatedly. (Id. ¶ 38.) After approximately
thirty minutes, Plaintiff demanded the names and badge numbers of the officers, which the
officers provided. (Id. ¶¶ 39–40.) Shortly thereafter, the officers left Plaintiff’s apartment.
(Id. ¶ 42.)
B.

September 8, 2017, Incident
Plaintiff alleges that on September 8, 2017, while he was alone in his apartment,

officers from the Bangor Police Department arrived and tried to access Plaintiff’s
apartment by way of a window and door, which were “locked and secure.” (Id. ¶¶ 55, 57–
58.) Plaintiff asserts that an officer then began to knock loudly on Plaintiff’s door and ring
the doorbell for approximately ten minutes. (Id. ¶ 58.) According to Plaintiff, the officers
did not provide a reason for being at his apartment. (Id. ¶ 67.)
After ten minutes of knocking on the door and ringing the doorbell, an officer 1 went
to Plaintiff’s bedroom window, which was slightly open, reached in with his hand, forced
the window down further, reached through the open window, and moved aside the
cardboard box that was obscuring the view. (Id. ¶ 69.) Plaintiff asserts that the officer

Plaintiff initially believed this officer was Defendant Huggins. (Third Amended Complaint ¶ 59.)
Defendants’ filings stated that Defendants Gastia and Dow were present at Plaintiff’s apartment on
September 8, 2017, not Defendant Huggins. (Id.) Plaintiff is unsure whether the officer in question is
Defendant Gastia or Defendant Dow.
1

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asked Plaintiff to step into view of the bedroom window to make sure Plaintiff was okay
as he was worried about Plaintiff. (Id. ¶ 74.) Plaintiff demanded to know how the officers
could come to his apartment under the circumstances, informed the officers that they were
engaging in unwanted harassment, and demanded they leave. (Id. ¶¶ 76, 79.) Plaintiff
alleges that after a quiet conversation, the officers returned to their vehicles. (Id. ¶¶ 80,
82.)
PROCEDURAL BACKGROUND
Plaintiff began this action with the filing of the complaint on August 18, 2023.
(Complaint, ECF No. 1.) On October 13, 2023, Defendants filed a motion to dismiss and,
on October 23, 2023, moved to amend the motion to dismiss. (Motion to Dismiss, ECF No.
7; Motion to Amend Motion to Dismiss, ECF No. 8.) Plaintiff filed an amended complaint
on November 6, 2023. (Amended Complaint, ECF No. 14.)
On November 16, 2023, Defendants filed a motion to dismiss Plaintiff’s amended
complaint. (Motion to Dismiss Amended Complaint, ECF No. 17.) Plaintiff moved to file
a second amended complaint on March 22, 2024, (Motion to Amend Complaint, ECF No.
29), which motion the Court granted on August 22, 2024. (Order Granting Motion to
Amend Complaint, ECF No. 45.) On September 10, 2024, Plaintiff moved for leave to file
a third amended complaint. (Motion to Amend Complaint, ECF No. 50.) To prevent any
confusion regarding the operative pleading and motions, on September 20, 2024, the Court
dismissed without prejudice Defendants’ motion to dismiss, which motion, the Court
noted, could be renewed after the Court ruled on the motion to amend. (Order Dismissing
Motions Without Prejudice, ECF No. 53.)
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On October 25, 2024, the Court granted the motion to amend, and Plaintiff
subsequently filed the amended complaint. (Order Granting Motion to Amend Complaint,
ECF No. 55; Third Amended Complaint, ECF No. 58.) Defendants filed an answer to the
third amended complaint on November 25, 2024. (Answer, ECF No. 60.) Defendants later
filed the pending motion to dismiss the third amended complaint.
DISCUSSION
A.

Timing of Motion to Dismiss
Plaintiff argues that Defendants’ motion to dismiss, which seeks dismissal under

Rule 12(b)(6), must be denied because Defendants filed the motion after they filed their
answer to the complaint. Defendants argue their motion should be considered given
Plaintiff’s “history of the serial filings,” and the September 20, 2024, order dismissing their
earlier motions to dismiss without prejudice, which provided that “[i]f the Court grants
[Plaintiff’s] latest motion to amend, the Defendants may elect to file a new motion to
dismiss the third amended complaint, but if the Court denies [Plaintiff’s] motion, the
Defendant may either refile their dismissed motion or file a new motion to dismiss the
second amended complaint.” In the alternative, Defendants ask the Court to construe the
motion as a motion for judgment on the pleadings in accordance with Rule 12(c).
The filing of a motion to dismiss after an answer does not necessarily preclude a
court from considering the motion to dismiss:
If [a] defendant decides to assert a Rule 12(b) defense by motion, then he
must do so before filing the answer. . . . A strict interpretation of the timing
provision’s language leads to the conclusion that the district judge must deny
any Rule 12(b) motion made after a responsive pleading is interposed as

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being too late. However, federal courts have allowed untimely motions if
the defense has been previously included in the answer.
5C C. Wright and A. Miller, Federal Practice and Procedures § 1361 (3d ed. 2024); Fed.
R. Civ. P. 12(b); Tobin v. Univ. of Me. Sys., 59 F. Supp. 2d 87, 89 (D. Me. 1999); Gerakaris
v. Champagne, 913 F. Supp. 646, 650–51 (D. Mass. 1996); Puckett v. United States, 82 F.
Supp. 2d 660, 663 (S.D. Tex. 1999) (“If the defendant has previously included in the
answer the defense raised in the motion, thereby giving notice, then courts generally allow
Rule 12(b)(6) motions filed after the answer.”). Courts have also construed motions to
dismiss filed after answers as motions for judgment on the pleadings under Rule 12(c).
Delta Truck & Tractor, Inc. v. Navistar Int’l Transp. Corp., 833 F. Supp. 587, 588 (W.D.
La. 1993).
Here, Defendants’ answer “reserved the right to assert, as appropriate at trial” the
following defenses: failure to state a claim, statute of limitations, insufficiency of process
and/or service of process, immunity, and qualified immunity. (Answer at 1–2.) Through
their answer, therefore, Defendants notified Plaintiff of the defenses that Defendants now
raise in a motion to dismiss. Because one or more of the defenses could be dispositive,
judicial economy weighs in favor of the Court’s assessment of the defenses before trial.
The Court discerns no prejudice to Plaintiff if the Court considers and rules on the motion
to dismiss. 2

Alternatively, the Court will construe the motion as a motion for judgment on the pleadings. A motion
for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is “ordinarily accorded much
the same treatment” as a motion to dismiss for failure to state a claim. Aponte-Torres v. Univ. of P.R., 445
F.3d 50, 54 (1st Cir. 2006).
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B.

Failure to State a Claim
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss

a claim for “failure to state a claim upon which relief can be granted.” In reviewing a
motion to dismiss under Rule 12(b)(6), a court “must evaluate whether the complaint
adequately pleads facts that ‘state a claim to relief that is plausible on its face.’” Guilfoile
v. Shields, 913 F.3d 178, 186 (1st Cir. 2019) (quoting Bell Atl. Corp. v. Twombly, 550 U.S.
544, 570 (2007)). In doing so, a court “assume[s] the truth of all well-pleaded facts and
give[s] the plaintiff the benefit of all reasonable inferences therefrom.” Id. (quoting Thomas
v. Rhode Island, 542 F.3d 944, 948 (1st Cir. 2008)). The complaint, however, may not
consist entirely of “conclusory allegations that merely parrot the relevant legal standard.”
Young, 717 F.3d at 231. Rule 12(b)(6) “demands more than an unadorned, the-defendantunlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To
evaluate the sufficiency of the complaint, therefore, a court must “first, ‘isolate and ignore
statements in the complaint that simply offer legal labels and conclusions or merely rehash
cause-of-action elements,’ then ‘take the complaint’s well-pled (i.e., non-conclusory, nonspeculative) facts as true, drawing all reasonable inferences in the pleader’s favor, and see
if they plausibly narrate a claim for relief.’” Zell v. Ricci, 957 F.3d 1, 7 (1st Cir. 2020)
(alteration omitted) (quoting Zenon v. Guzman, 924 F.3d 611, 615-16 (1st Cir. 2019)).
“A self-represented plaintiff is not exempt from this framework, but the court must
construe his complaint ‘liberally’ and hold it ‘to less stringent standards than formal
pleadings drafted by lawyers.’” Waterman v. White Interior Sols., No. 2:19-cv-00032-

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JDL, 2019 U.S. Dist. LEXIS 191506, at *4 (D. Me. Nov. 5, 2019) (quoting Erickson v.
Pardus, 551 U.S. 89, 94 (2007)).
1.

Claims against the City of Bangor and the Bangor Police Department

Plaintiff alleges claims against the City of Bangor and the Bangor Police
Department under 42 U.S.C. § 1983 and 5 M.R.S. § 4682. Because the Bangor Police
Department and the City of Bangor are one legal entity, see Henschel v. Worcester Police
Dept., 445 F.2d 624, 624 (1st Cir. 1971) (per curiam), and because 5 M.R.S. § 4682 is the
Maine analogue to 42 U.S.C. § 1983, only one analysis is necessary to assess the claims.
Cohen ex rel. Cohen v. City of Portland, 110 F.4th 400, 404 (1st Cir. 2024) (quoting Berube
v. Conley, 506 F.3d 79, 85 (1st Cir. 2007)) (“The disposition of a [section] 1983 claim also
controls a claim under the [analogous Maine statute].”).
A municipality cannot be vicariously liable for a constitutional deprivation simply
because the deprivation was caused by a municipal employee. Welch v. Ciampa, 542 F.3d
927, 941 (1st Cir. 2008) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 691 (1978)).
For a municipality to be liable for a constitutional deprivation, the record must include
evidence that a municipal policy, custom, or practice caused the deprivation. Id. A plaintiff
must “identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. of
Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997).
a.

Municipal Policy

Plaintiff argues that while he is unaware of any specific policy, he is certain one
exists and will be unearthed through discovery. He also contends that Defendants admitted
to a policy through their motion to dismiss.
8

Plaintiff appears to suggest the City of Bangor has a policy allowing its police
officers to conduct warrantless searches absent exigent circumstances in violation of the
Fourth Amendment.

Plaintiff, however, alleges no facts to support his supposition.

Without any supportive facts, Plaintiff’s contention is not plausible. See Grajales v. P.R.
Ports Auth., 682 F.3d 40, 44–45 (1st Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)) (“To cross the plausibility threshold a claim does not need to be probable, but it
must give rise to more than a mere possibility of liability.”)
Plaintiff’s argument that Defendants admitted to a policy is also unavailing. In
support of his contention, Plaintiff cites the following statement in Defendants’ motion to
dismiss: “The police officers were not alone in the belief that there was an extension of
warrantless exceptions in cases like this.” (Response to Motion at 10, ECF No. 65; Motion
to Dismiss at 10.) Plaintiff contends that this sentence implies that there “was probably a
department-wide policy. . . .” (Response to Motion at 10.) The language cannot reasonably
be construed as an admission that the City or is police department had a policy to permit
unlawful warrantless searches.
b.

Municipal Custom

To hold a municipality liable for a custom or practice, a plaintiff must satisfy a twoprong test:
First, the custom or practice must be attributable to the municipality. In other
words, it must be so well settled and widespread that the policymaking
officials of the municipality can be said to have either actual or constructive
knowledge of it yet did nothing to end the practice. Second, the custom must
have been the cause of and the moving force behind the deprivation of
constitutional rights.

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Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989) (citations omitted).
Plaintiff argues that by dispatching the officers to his apartment, the Bangor Police
Department condoned the actions of the officers. Plaintiff also alleges the unconstitutional
conduct he describes is “endemic” to the Bangor Police Department. Plaintiff, however,
does not cite any incidents other than those that are the subject of his claim. By dispatching
of an officer to a location, a police department does not condone the conduct of the officers
who respond to the dispatch. In addition, the alleged incidents are insufficient in number
to constitute a custom.

Cf. Bordanaro, 871 F.2d at 1156 (finding custom existed when

behavior was longstanding and widespread); City of Oklahoma City v. Tuttle, 471 U.S. 808,
823–24 (1985) (“Proof of a single incident of unconstitutional activity is not sufficient to
impose [municipal] liability. . . .”).
In sum, Plaintiff has not identified a municipal policy or custom that would support
a finding of the City of Bangor’s municipal liability.
2.

Equal Protection Claims Against All Defendants

Defendants argue Plaintiff’s Equal Protection Claims must be dismissed because
Plaintiff failed to allege facts that would support a finding that similarly situated individuals
were treated differently.
The Fourteenth Amendment provides under the Equal Protection Clause that “[n]o
State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”
U.S. Const. amend XIV, § 1. For a plaintiff to allege a claim under the Equal Protection
Clause, the plaintiff must establish that she or he was “treated differently from others
similarly situated.” Estate of Bennett v. Wainwright, 548 F.3d 155, 166 (1st Cir. 2008);
10

City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see Vill. of
Willowbrook v. Olech, 538 U.S. 562, 564 (2000); Santos v. Fed. Emergency Mgmt. Agency,
327 F. Supp. 3d 328, 341 (D. Mass. 2018). This requirement “demands more than lip
service” and “is meant to be ‘a very significant burden.” Cordi-Allen v. Conlon, 494 F.3d
245, 251 (1st Cir. 2007) (quoting Discovery House, Inc. v. Consol. City of Indianapolis,
319 F.3d 277, 283 (7th Cir. 2003)); see Barrington Cove Ltd. P’ship v. R.I. Hous. And
Mortg. Fin. Corp, 246 F.3d 1, 8 (1st Cir. 2001) (affirming Rule 12(b)(6) dismissal because
plaintiffs failed the “similarly situated” test).
Plaintiff states that his neighbor in the apartment building is a similarly situated
individual because the person is about his age and rents an apartment in the same complex.
Plaintiff alleges this person was treated differently than Plaintiff because Plaintiff has
complained numerous times of “excess noise and harassment” from the individual and no
action was ever taken by the apartment complex manager or the police. The connection
between this person, the police officers’ behavior on the dates in question, and the alleged
reason for the officers’ behavior 3 is unclear. The mere fact that an individual in Plaintiff’s
apartment complex was not visited by the police in response to a complaint is insufficient

Plaintiff asserts the police officers’ behavior is in response to a white paper he submitted to various state
and federal government offices detailing how he was tortured at his prior job while working as a government
contractor.

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to satisfy the similarly situated pleading requirement. Plaintiff has not alleged sufficient
facts to state a claim under the Equal Protection Clause. 4
3.

Fourth Amendment Claims

Defendants argue that Plaintiff has not alleged an actionable Fourth Amendment
claim against Defendants Lewis, Davis, and Huggins.
The Fourth Amendment to the U.S. Constitution provides “[t]he right of the people
to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures. . . .” U.S. Const. amend. IV. “A search within the meaning of the Fourth
Amendment occurs whenever the government intrudes upon any place and in relation to
any item in which a person has a reasonable expectation of privacy.” United States v. Moss,
936 F.3d 52, 58 (1st Cir. 2019). “[W]hen it comes to the Fourth Amendment, the home is
first among equals.” Florida v. Jardines, 569 U.S. 1, 6 (2013). Although warrantless
searches in a home are presumptively unreasonable, Brigham City v. Stuart, 547 U.S. 398,
403 (2006), “the exigencies of the situation [may] make the needs of law enforcement so
compelling that the warrantless search is objectively reasonable.” Mincey v. Arizona, 437
U.S. 385, 393–94 (1978). “Accordingly, law enforcement officers may enter a home
without a warrant to render emergency assistance to an injured occupant or to protect an
occupant from imminent injury.” Brigham, 547 U.S. at 403; accord United States v.
Samboy, 433 F.3d 154, 158 (1st Cir. 2005) (quoting Fletcher v. Town of Clinton, 196 F.3d

Because a plaintiff must allege that he or she was treated differently than someone similarly situated for
any type of Equal Protection claim, Plaintiff has failed to allege a “class of one” claim or a claim based on
his alleged suspect class. See Estate of Bennett, 548 F.3d at 166; Vill. of Willowbrook, 538 U.S. at 564.

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41, 49 (1st Cir. 1999) (“To show exigent circumstances, the police must reasonably believe
that ‘there is such a compelling necessity for immediate action as will not brook the delay
of obtaining a warrant.’”).
The First Circuit has also recognized a community caretaker exception to the
warrant requirement. In 2014, the First Circuit wrote, “we have recognized (in the motor
vehicle context) a community caretaking exception to the warrant requirement.

In

delineating this exception, we held ‘the imperatives of the fourth amendment are satisfied
in connection with the performance of … community caretaker tasks so long as the
procedure employed (and its implementation) is reasonable.’” MacDonald v. Town of
Eastham, 745 F.3d 8, 12 (1st Cir. 2014) (quoting United States v. Rodriguez-Morales, 929
F.2d 780, 785 (1st Cir. 1991)); see also Boudreau v. Lussier, 901 F.3d 65, 71 (1st Cir.
2018) (citation and internal quotation marks omitted) (“The ‘community caretaking
function’ is one of the various exceptions to the Fourth Amendment’s requirement that law
enforcement officers have probable cause and obtain a warrant before effecting a search or
seizing property.”).
In March 2020, the First Circuit extended application of the community caretaker
exception from a motor vehicle to the home. Caniglia v. Strom, 953 F.3d 112 (1st Cir.
2020). On May 17, 2021, the Supreme Court reversed, reasoning in part that “this
recognition that police officers perform many civic tasks in modern society was just that—
a recognition that these tasks exist, and not an open-ended license to perform them
anywhere.” Caniglia v. Strom, 593 U.S. 194, 199 (2021).

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a.

Fourth Amendment Claims Against Defendants Lewis, Davis, and
Huggins

Plaintiff alleges that Defendants entered his home without a warrant. Plaintiff also
has not alleged that exigent circumstances existed to justify a warrantless entry on August
21, 2017. Because Plaintiff alleges that the officers, after entering his apartment, stated
they were concerned about Plaintiff’s mental health, the alleged facts alleged could be
viewed to raise the possibility of exigent circumstances. The alleged facts, however, do
not require a finding of exigent circumstances. 5 Because the facts alleged in Plaintiff’s
complaint, when viewed most favorably to Plaintiff, could support a finding that the
officers entered Plaintiff’s apartment without a warrant in the absence of exigent
circumstances, Plaintiff has sufficiently alleged a Fourth Amendment violation against
Defendants Lewis, Davis, and Huggins. See Groh v. Ramirez, 540 U.S. 551, 564 (2004).
b.

Fourth Amendment Claims Against Defendants Gastia and Dow 6

As pled by Plaintiff, on September 8, 2017, either Officer Gastia or Dow reached
into Plaintiff’s bedroom window, opened the window further, and removed an item
obstructing the view into the window. When viewed most favorably to Plaintiff, the
alleged facts do not establish exigent circumstances that would permit a warrantless entry

In their motion to dismiss, Defendants assert that the officers went to Plaintiff’s apartment with Plaintiff’s
mother and suggest that viewing Plaintiff naked on his floor created exigent circumstances allowing the
officers to enter the apartment without a warrant. On a motion to dismiss, the Court considers the wellpled facts within a complaint. The Court does not consider unsupported factual assertions in memoranda
filed in connection with the motion.
5

Although Defendants do not argue Plaintiff failed to state a claim under the Fourth Amendment as to
Defendants Gastia and Dow, because it is relevant to the qualified immunity analysis, see discussion infra,
I address it here.

6

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by the officer. The allegations, therefore, are sufficient to state a claim under the Fourth
Amendment. 7 See United States v. Jones, 565 U.S. 400, 410 (2012); United States v.
Maple, 348 F.3d 260, 262 (D.C. Cir. 2003) (“[A]ny deliberate governmental intrusion into
a closed space—opening a door or a closed compartment—is a search regardless of the
reasons for the intrusion.”); Hopkins v. Claroni¸ No. 1:13-CV-229-DBH, 2015 WL
2371654, at *5 (D. Me. May 18, 2015) (police officer reaching through car window may
be search under Fourth Amendment but dismissing claim on qualified immunity grounds);
see also United States v. Brown, No. 623-017, 2025 WL 25957, at *8–9 (S.D. Ga. Jan. 3,
2025) (encouraging police dog to stick head into vehicle violated Fourth Amendment).
C.

Qualified Immunity
Qualified immunity protects police officers and other governmental officials from

personal liability for money damages in civil rights actions, provided the officer’s actions
did not violate rights clearly established by the governing law. Ciolino v. Gikas, 861 F.3d
296, 302 (1st Cir. 2017). “In practice, the doctrine affords government officials a ‘margin
of error’ to make reasonable mistakes in the course of their work.” Morse v. Cloutier, 869
F.3d 16, 22 (1st Cir. 2017). When the qualified immunity defense is raised, a court initially
asks whether the plaintiff alleged sufficient facts to state a claim for violation of a
constitutional right. Id. at 303. As discussed above, Plaintiff has alleged sufficient facts

To the extent Plaintiff argues the officer or officers “banging” on his door is a violation of the Fourth
Amendment, Supreme Court precedent teaches that it is not. See Kentucky v. King, 563 U.S. 452, 472
(2011) (holding police officer banging on door as loud as they could and announcing it was the police “was
entirely consistent with the Fourth Amendment.”)

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to state a claim under the Fourth Amendment for the August 21, 2017, and September 8,
2017, incidents.
The next step in a qualified immunity analysis is to consider whether the right was
clearly established when the alleged violation occurred. Id. “A clearly established right is
one that is ‘sufficiently clear that every reasonable official would have understood what he
is doing violates that right.’” Mullenix v. Luna, 577 U.S. 7, 11 (2015) (Reichle v. Howards,
566 U.S. 658, 664 (2012)). To determine if something is “clearly established”, courts must
first “ask whether the contours of the right would have been ‘sufficiently well-defined at
the critical time’ and, if so, ‘whether it would have been clear to an objectively reasonable
official, situated similarly to [the defendants], that the actions taken or omitted contravened
the clearly established right.’” Haley v. City of Boston, 657 F.3d 39, 48 (1st Cir. 2011)
(quoting Limone v. Condon, 372 F.3d 39, 48 (1st Cir. 2004)); see also Anderson v.
Creighton, 483 U.S. 635, 640 (1987); Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir.
2009) (describing the First Circuit’s qualified immunity approach as three-part test).
Defendants contend that at the time of the incidents, while the First Circuit
recognized a community caretaking exception to the warrant requirement, its application
to the home was uncertain and thus not clearly established. Defendants argue, therefore,
that given the lack of clarity regarding application of the exception to the home until the
Supreme Court’s decision in Caniglia, “there was no reason to believe the entry was not
justified and Constitutional.” (Motion at 10.)
Even if the scope of the exception was not clearly established and the officers could
have reasonably believed that the community caretaking exception applied to the home,
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dismissal is not appropriate based on qualified immunity. The circumstances of the
officers’ entry are disputed and, therefore, a more developed record is required to determine
the relevancy of the community caretaker exception to the qualified immunity analysis. See
Jakuttis v. Town of Dracut, 656 F. Supp. 3d 302, 318 (D. Mass. 2023) (“Factual disputes
or undeveloped facts relevant to qualified immunity may preclude an early decision in such
cases.”); Chamberlain Estate of Chamberlain v. City of White Plains, 960 F.3d 100, 110
(2d Cir. 2020); see also Abubardar v. Gross, 542 F. Supp. 3d 69, 75, 77 (D. Mass. 2021)
(“The rejection of a qualified immunity defense at the motion to dismiss stage does not
preclude a party from reasserting the defense after further factual development.”).
D.

Statute of Limitations
Defendants argue the claims against Defendants Gastia and Dow should be

dismissed because the statute of limitations expired before Plaintiff added them as
defendants.
For an amended complaint as to new defendants to relate back to the date of the
filing of the original pleading, in accordance with Federal Rule of Civil Procedure 15(c),
the following conditions must be satisfied:
First, the claim asserted against the newly-designated defendant . . . must
arise ‘out of the conduct, transaction, or occurrence set out—or attempted to
be set out—in the original pleading. Second, ‘within the period provided . .
. for serving the summons and complaint, the party to be brought in by
amendment’ must have ‘received such notice of the action that it will not be
prejudiced in defending on the merits.’ Third, it must appear that within the
same time frame the newly-designated defendant either “knew or should
have known that the action would have been brought against it, but for a
mistake concerning the proper party’s identity.”

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Morel v. DaimlerChrysler AG, 565 F.3d 20, 26 (1st Cir. 2009) (quoting Fed. R. Civ. P.
15(c)) (citations omitted); Fed. R. Civ. P. 15(c). Courts may find constructive notice under
the shared attorney method or the identity of interest method. Singletary v. Pa. Dept. of
Corrections, 266 F.3d 186, 196 (3d Cir. 2001); Miller v. Hassinger, 173 F. App’x 948, 955
(3d Cir. 2006); see also Chao v. Ballista, 630 F. Supp. 2d 170, 181–82 (D. Mass. 2009).
Defendants do not dispute that the claim against Defendants Gastia and Dow is the
same conduct set forth in the original pleading. Plaintiff evidently did not originally
include Defendants Gastia and Dow as defendants due to a mistaken belief that the officers
present at the September incident were the same officers who were present at the August
incident. See Phoenix v. Day One, No. 20-cv-152-WES-PAS, 2020 WL 7310498, at *4
(D.R.I. Dec. 11, 2020) (discussing requirement that Plaintiff be mistaken concerning a
defendant’s identity). Whether Gastia and Dow had notice and knew or should have known
about this action, however, requires a more developed record. The Court cannot at this
stage of the proceedings determine whether the statute of limitations bars Plaintiff’s claim.
See Miller, 173 F. App’x at 956 (finding district court erred in not providing plaintiff
“sufficient opportunity to conduct discovery on the issue of notice.”).
CONCLUSION
Based on the foregoing analysis, I recommend the Court grant Defendants’ motion
to dismiss as to all claims against the City of Bangor and the Bangor Police Department,
and as to individual defendants on Counts IV, V, and VI (equal protection claims). I
recommend the Court deny the motion as to Counts I, II, and III as to the individual
defendants. I further recommend the Court dismiss as unnecessary and as mooted by this
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recommended decision, Plaintiff’s motion to dismiss, moot, or strike the motion to
dismiss. 8
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
and 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 10th day of March, 2025.

Defendants also assert insufficiency of process and lack of service of the complaint upon the individual
defendants. The individual defendants have participated in the motion practice, which suggests a lack of
prejudice to the defendants if the Court were to allow Plaintiff more time to serve the defendants.
Accordingly, if the Court adopts the recommended decision and the case proceeds against one or more
individual defendants who have not been served, I recommend the Court extend the time for service and
not dismiss based on a lack of service or the insufficiency of process.
8

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