BROWN v. STATE OF MAINE et al

Filing 82

ORDER re: 28 Motion to Dismiss; 32 Motion to Dismiss for Lack of Jurisdiction; 33 Motion to Dismiss for Failure to State a Claim; 39 Motion to Dismiss; 44 Motion to Amend. ; 45 Motion for Extension of Time to Answer; 47 Motion for Sanctions; 48 Motion to Strike ; 50 Motion to Continue; 50 Motion to Amend. ; 54 Motion to Strike ; 55 Motion to Strike ; 57 Motion to Extend Time; 64 Motion to Strike By JUDGE JOSEPH A. DICLERICO, JR. (mjlt)

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MAINE

Craig Brown

v.

Civil No. 11-cv-426-JD

State of Maine, et al.
0 R D E R

Craig Brown, who is proceeding pro se, 1 brought suit against
the United States, the State of Maine, the Town of Camden, state
and federal judges, the Maine Attorney General, district
attorneys, and his former attorney, alleging claims arising from
Brown's boundary dispute with his neighbor and his previous
unsuccessful litigation in state and federal courts.

The

defendants moved to dismiss under Federal Rule of Civil Procedure
12(b) (6).

The United States filed a motion to amend the motion

to dismiss and a motion to extend the time for the federal judges
to file answers.

Brown filed a letter to clarify his filings, a

motion to continue, and a separate "justification" of his motion
to continue.

The Town of Camden moved for sanctions against

Brown and moved to strike the letter filed by Brown.

Other

defendants also moved to strike the letter and the justification
filed by Brown.

Although Brown describes himself as proceeding "in propria
persona," there is no difference in this case between the terms
"prose" and "propria persona." See Savage v. Estelle, 924 F.2d
1459, 1460 n.1 (9th Cir. 1991); El v. O'Brien, 2012 WL 2367096,
at *1 n.1 (E.D.N.Y. June 20, 2012).
1

Background2
Brown's claims in this case began as a result of a dispute
with his neighbor, Michael Ferrara, about the boundary between
their two properties in the Stonehurst Subdivision located in
Camden, Maine. 3

After Brown tore down part of Ferrara's fence in

early 2009, he was prosecuted and convicted in state court on a
criminal mischief charge.

State v. Brown, ROCSC-CR-2009-00083.

The prosecution was handled by Assistant District Attorney
Lindsay Jones.

Geoffrey Rushlau was District Attorney.

Jeffrey L. Hjelm presided at the trial.

Judge

Brown was found guilty

in March of 2010.
Ferrara sought a protective order against Brown, which was
granted by Judge Westcott in Rockland (Maine) District Court, on
April 17, 2009, based on the parties' signed agreement.

Brown

was ordered to allow the fence to be constructed on Ferrara's
property.
Ferrara brought suit against Brown in May of 2009 in Maine
Superior Court, seeking to establish the boundary between them
The background facts are taken from Brown's amended
complaint, decisions in the other related federal cases, and
exhibits Brown submitted with his objection to the Maine
defendants' motion to dismiss.
2

Brown had had an acrimonious relationship with Ferrara
before the fence incident. He filed actions in state court
against Ferrara. Three court orders, dated October 11, 14, and
17, 2008, respectively, were issued in these three separate
cases. Brown was warned that if he filed another frivolous suit
against'Ferrara, the court would not allow further filings absent
court approval.
3

2

and to recover the cost of the damage Brown caused to his fence.
Ferrara v. Brown, ROCSC-RE-2009-00010.

Brown brought a

counterclaim to establish the boundary in the place he asserted
it should be.

Attorney Steven Petersen represented Brown.

Brown

argued, and has continued to argue in subsequent cases, that the
boundary between his property and Ferrara's property is shown on
a subdivision plan for the Stonehurst Subdivision.
Judge Hjelm also presided in the boundary case.

The court

ruled on November 8, 2010, based on summary judgment entered on
November 18, 2009:
that the parties' common boundary line is marked and
defined by the existing monuments and surveying pins
that were placed in the ground as part of the original
subdivision development; that these monuments and pins
are clearly visible; that the parties' common boundary
line is as shown in the survey prepared by Nathaniel
Beal; that the fence erected by the Ferrara [sic] is
located on the plaintiff's [Ferrara's] property; that
the defendant [Brown] damaged, destroyed or threw down
the fence; and that the cost to repair the fence was
$4,038.19.
The court denied Ferrara's request for punitive damages.
Judgment entered on March 9, 2010.
Brown filed complaints with the Maine Board of Licensure for
Professional Land Surveyors against Nathaniel Beal, a surveyor
who provided a survey of the property boundary between Ferrara
and Brown, and the survey companies that did surveys for the
Stonehurst Subdivision.

Elwood Ellis was a complaint officer

with the Board of Licensure.

3

Brown filed four related cases in federal court:

Brown v.

Camden, 10-cv-063-GZS (D. Me. judgment entered May 10, 2010)
(Camden); Brown v. Ferrara, 10-cv-523-GZS (D. Me. judgment
entered June 15, 2012)

(Ferrara); and Brown v. Wodruff, 12-cv-

168-GZS (D. Me. dismissed May 31, 2012)

(Wodruff).

have been entered against Brown in the three cases.

Judgments
Brown filed

this case on November 10, 2011.

A.

United States's Motions to Amend and to Extend Time
By filing the motion to dismiss on behalf of the United

States and the two federal judges, Assistant United States
Attorney ("AUSA") Roth appeared on behalf of all three federal
defendants.

See Local Rule 83.2(a) . 4

Once an attorney appears

on behalf of a party, the attorney must file a motion to
withdraw, seeking leave of court to end the representation.
Local Rule 83.2(c).

AUSA Roth did not move to withdraw but

instead filed a motion to amend the motion to dismiss, asking the
court to grant amicus curiae status to the United States and to
deem the motion to dismiss as having been filed by the United
States on its own behalf and in support of the federal judges.
An amicus curiae is not a party, does not represent another

party, and cannot raise issues that have not been asserted by a
party.

See Upper Blackstone Water Pollution Abatement Dist. v.

4 Local

Rules of the United States District Court for the
District of Maine.
4

U.S.E.P.A., 690 F.3d 9, 29 n.25 (1st Cir. 2012); United States v.
Mullet,

F. Supp. 2d ---, 2012 WL 2330905, at *5 (N.D. Ohio

May 31, 2012).

The reasons for this procedural anomaly,

presented by the motion to amend, are not apparent to the court.
The motion to amend is denied.

Therefore, the motion to extend

time is unnecessary.

B.

Plaintiff's Motion for Continuance and to Amend Response
Brown filed a motion for a continuance and for leave to

amend his response to the motion to dismiss filed by the United
States and federal judges.
motion.

The defendants objected to the

In response, Brown filed "Plaintiff Justification for

Motion for Continuance and to Extend Time to File Response to
[Federal Defendants'] Motion to Dismiss."

The defendants filed

objections to that filing.
In support of his motion, Brown states that he has been
abused by police and by federal court staff and asks for time to
document the abuse.

He also states that he "is seeking

additional legal help from the Senate and House of Representative
Judicial Councils, so that the correct actions are taken to purge
the Portland Federal District Court and the Maine 'legal' system
of criminals."

He further represents that he needs more time to

document violations of his rights by the defendants.

In his

justification for the motion, Brown asks the court to review his
list of accusations of wrongdoing.
5

Brown has not provided any cognizable basis for a
continuance or for leave to amend his response to the federal
defendants' motion to dismiss.

After he filed the motion for a

continuance and to amend his response, Brown filed responses to
other motions filed by the defendants, moved for my recusal, and
objected to the order denying his motion for recusal.

Neither

Brown's motion nor the record in this case supports his requests
for a continuance and for leave to amend his response.

C.

Letter to Clarify and Motions to Strike
In the filing titled "Plaintiff Letter to Clarify Filings

and Response to Defendants Motions," Brown states that he would
like to explain his efforts to vacate the judgment in a different
case, Ferrara, 10-cv-523-GZS, and the relationship between that
case and the present case.

The letter continues with pages of

accusations of misfeasance by judges, police, court staff, and
others, along with argument to support Brown's claims and
accusations.

The Town of Camden, the Maine defendants, and

Steven Petersen move to strike the letter on the grounds that it
is not a proper filing and that it contains new allegations not
otherwise part of this case. 5

The defendants also ask that Brown

be sanctioned under Federal Rule of Civil Procedure 11 for making
frivolous filings.

The state defendants appear to have filed their motion to
strike twice: document number 55 and document number 64.
5

6

The defendants are correct that the Federal Rules of Civil
Procedure require a party to file a motion to request action by
the court.

Fed. R. Civ. P. 7(b).

the requirements of a motion.

Brown's letter does not meet

In addition, to the extent Brown

intended his letter to augment his responses to the motions to
dismiss, that also is not a proper filing, as Brown should
realize based on his litigation experience in the four cases he
has brought in this court.

Therefore, the letter will not be

considered in this case.
The defendants' request for sanctions is considered below.

D.

Motions to Dismiss
All of the defendants move to dismiss the claims against

them under Federal Rule of Civil Procedure 12(b) (6).
claims are alleged in fifteen counts.

Brown's

Counts 1 and 2 are

identified as claims of violations of 42 U.S.C.

§

1983 and

§

1985

and fraud against the court, brought against the State of Maine
and Judge Westcott.

Counts 3, 4, and 5 are identified as claims

of violations of 42 U.S.C

§

1983 and

§

1985, fraud against the

court, and RICO predicate acts, brought against the State of
Maine, Geoff Rushlau, and Lindsay Jones. 6

Counts 7 and 8 are

identified as claims of violations of 42 U.S.C.

§

1983 and

§

1985

and professional misconduct by a lawyer, brought against the

6

RICO is the Racketeer Influenced and Corrupt Organization

Act.
7

State of Maine, Judge Jeffery Hjelm, and Attorney Steven
Petersen. 7

Counts 10 and 11 are identified as claims of

violations of 42 U.S.C.

§

1983 and

§

1985 and obstruction of

justice and retaliation, brought against the State of Maine, the
Maine Attorney General, and Complaint Officer Elwood Ellis.
Counts 12 and 13 are identified as claims of violations of 42
U.S.C.

§

1983 and

§

1985 and fraud against the court, brought

against the United States and Magistrate Judge Margaret Kravchuk.
Count 14 is identified as a claim of violations of 42 U.S.C.
1983 and

1985, brought against the United States and Judge

§

Sandra Lynch.
42 U.S.C.

§

§

Count 15 is identified as a claim of violations of

1983 and

§

1985, brought against the State of Maine

and the Town of Camden.
To avoid dismissal under Rule 12(b) (6), the plaintiff must
allege "a plausible entitlement to relief," meaning "a claim to
relief that is plausible on its face."
Twombly, 550

u.s.

544, 570 (2007).

Bell Atl. Corp. v.

The Rule 12(b) (6)standard

"demands more than an unadorned, the-defendant-unlawfully-harmedme accusation.

A pleading that offers labels and conclusions or

a formulaic recitation of the elements of a cause of action will
not do."

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Instead,

the complaint must provide sufficient factual matter, that when
accepted as true, supports a plausible claim.

Id.

Although the prayer for relief for Counts 7 and 8 mentions
Count 9, Count 9 is omitted from the title.
7

8

Brown brings claims against many of the defendants under 42
U.S.C.

§

1983 and

§

substantive rights.

1985.

Neither

§

1983 nor

§

1985 creates

D.B. ex rel. Elizabeth B. v. Esposito, 675

F.3d 26, 44 (1st Cir. 2012).

Section 1985, as might be

applicable here, provides a private right of action against two
or more persons who conspire to interfere with specific federal
civil rights.

See Soto-Padro v. Pub. Bldgs. Auth., 675 F.3d 1, 4

(1st Cir. 2012); Connor v. Mass. Comm'n Against Discrimination,
2012 WL 3686182, at *2 (D. Mass. Aug. 15, 2012).
Although Brown identified

1985 as a cause of action, he

§

did not allege facts to support the elements of a claim under
§

1985 against any of the defendants.

under

§

1.

Therefore, all claims

1985 are dismissed.

Federal Defendants' Motion to Dismiss

The United States, Magistrate Judge Kravchuk, and Judge
Lynch move to dismiss the claims against them.

The United States

asserts sovereign immunity, and the judges assert absolute
judicial immunity.

The federal defendants also contend that

Brown has not alleged cognizable causes of action against them.
In response, Brown argues that Judge Kravchuck ignored Maine law
which resulted in fraud on the court; that various police
officers, judges and court personnel, and others have stalked,
harassed, and bullied Brown and his wife, and that Judge Lynch
and others have made the judicial complaint process void.
9

a.

United States

"Absent a waiver, sovereign immunity (which is jurisdictional in nature) shields the United States from suit."
Villanueva v. United States, 662 F.3d 124, 126 (1st Cir. 2011).
The United States has not waived its sovereign immunity for
purposes of civil rights claims under

§

1983 or RICO.

See

Jachetta v. United States, 653 F.3d 898, 907-08 (9th Cir. 2011);
Wilson v. U.S. Dept. of Educ., 2012 WL 1443274, at *9 (D. Or.
Apr. 24, 2012); Wallace v. Miller, 2012 WL 1106759, at *9 (M.D.
Pa. Mar. 6, 2012); Papadopoulos v. Astrue, 2011 WL 5244942, at
*10 (S.D.N.Y. Nov. 2, 2011).

State law tort claims against the

United States must be brought pursuant to the limited waiver
provided under the Federal Tort Claims Act.

Davis v. United

States, 670 F.3d 48, 52 (1st Cir. 2012).
Brown's federal claims against the United States are barred
by sovereign immunity.

Brown has not alleged a claim or complied

with the requirements of the Federal Tort Claims.

Therefore, all

of Brown's claims against the United States are dismissed.

b.

Judges

Brown's claims against Magistrate Judge Kravchuk are based
on her decisions that were not in his favor in his prior cases.
He contends that Magistrate Judge Kravchuk was biased against
him, failed to follow Maine law, and did not follow the Federal
Rules of Civil Procedure.

Brown argues that Magistrate Judge
10

Kravchuk violated his unspecified urights, privileges or
immunities secured by the Constitution or by Federal Law."
Brown's claims against Judge Lynch arise from his complaint about
Magistrate Judge Kravchuk to the First Circuit Court of Appeals.
He alleges that Judge Lynch denied his unspecified urights,
privileges or immunities secured by the Constitution or by
Federal Law. "
Absolute judicial immunity protects judges from liability
for actions taken in their judicial capacity that are within the
jurisdiction of the court.

Mireles v. Waco, 502 U.S. 9, 11

(1991); Forrester v. White, 484 U.S. 219, 225-26 (1988).
Judicial immunity applies to claims brought under
v. Sparkman, 435 U.S. 349, 356 (1978).

§

1983. 8

Stump

Decisions made in the

course of a court case are judicial actions protected by
immunity.

Id. at 362.

Immunity protects judges even when they

are accused of acting maliciously or corruptly.

Mireles, 502

U.S. at 11.
Brown attacks Magistrate Judge Kravchuk's decisions, which
were made in her judicial capacity.

He provides no basis to

conclude that Magistrate Judge Kravchuk lacked jurisdiction to

Further, federal officials are not subject to suit under
1983 which applies to state actors acting under state law.
8

§

11

make the decisions.

Therefore, Brown's claims are barred by

absolute judicial immunity. 9
Judge Lynch is chief judge of the Court of Appeals of the
First Circuit.

Brown's claims against Judge Lynch are based on

his dissatisfaction with the result of his judicial conduct
complaint against Magistrate Judge Kravchuk.

He contends that

Judge Lynch failed to supervise Magistrate Judge Kravchuk and
improperly failed to immediately disqualify Magistrate Judge
Kravchuk from Brown's cases.
A claim that a chief judge failed to properly supervise
another judge is barred by absolute judicial immunity.

Foley v.

Marquez, 2004 WL 603566, at *3 (N.D. Cal. Mar. 22, 2004).

The

chief judge of a circuit court of appeals is authorized by
statute to review complaints of judicial misconduct, see 28
U.S.C.

§§

351 and 352, and the judicial council is authorized to

make decisions on such complaints, 28 U.S.C.

§

354.

Actions by a

judge in reviewing and deciding issues pertaining to judicial
conduct complaints and participation in the Judicial Council are
taken in her capacity as a judge and are within the judicial
function protected by absolute judicial immunity.

Overton v.

Torruella, 183 F. Supp. 2d 295, 300 (D. Mass. 2001).

9 To

Therefore,

the extent Brown intended to allege a state law cause of
action, which is far from clear, that claim too is barred by
absolute judicial immunity. See Richards v. Ellis, 233 A.2d 37,
38 (Me. 1967).
12

Brown's claims against Judge Lynch are barred by absolute
judicial immunity.

2.

The Maine Defendants' Motion to Dismiss

The Maine defendants are the State of Maine, the Maine
Attorney General, Geoff Rushlau, Lindsay Jones, Elwood Ellis,
Judge Hjelm, and Judge Westcott.

The Maine defendants move to

dismiss the claims against them on the grounds of judicial
immunity, failure to state a claim, res judicata, prosecutorial
immunity, and Eleventh Amendment immunity.

To the extent any

state law claims would survive, the Maine defendants ask the
court not to exercise supplemental jurisdiction over them under
28

u.s.c.

§

1367.

In response, Brown argues that sovereign immunity does not
apply because he sued the state actors in their official and
individual capacities.

He contends that judicial immunity does

not apply because the state judges lacked jurisdiction to decide
matters entrusted to local planning boards and that Judge Hjelm
ignored exculpatory evidence in his favor.

He also contends that

res judicata does not apply to the decisions against him on his
claims against the prosecutors.

a.

State of Maine, Maine Attorney General, and Elwood
Ellis

The Maine Attorney General and Elwood Ellis in their
official capacities are the equivalent of the State of Maine.
13

Sovereign immunity under the Eleventh Amendment precludes any
federal suit against a state, absent its consent or valid federal
legislation abrogating immunity, except under the exception for
prospective injunctive and declaratory relief.

Consejo de Salud

de la Comunidad de la Playa de Ponce. Inc. v. Gonzalez-Feliciano,
F.3d ---, 2012 WL 3553610, at *17 (1st Cir. Aug. 20, 2012).
The State of Maine has not consented to suit by Brown in this
case, and Brown's claims are not based on a valid statutory
abrogation of sovereign immunity.

See id. at *18.

Therefore

sovereign immunity bars all of Brown's claims against the State
of Maine and the state defendants in their official capacities.
Brown states in his objection that he also brought his
claims against the Maine Attorney General in his individual
capacity.

Sovereign immunity does not bar suits against state

officials in their individual capacities as long as the relief
sought would come from the officer personally.

Guillemard-

Ginorio v. Contreras-Gomez, 585 F.3d 508, 530-31 (1st Cir. 2009).
Brown's allegations against the Maine Attorney General pertain to
his failure to supervise judges, prosecutors, and Ellis.
As is noted above, Brown does not allege a claim against the
Attorney General that meets the elements of

§

1985.

Section 1983

does not recognize claims under a theory of respondeat superior.
See Marrero-Rodriguez v. Municipality of San Juan, 677 F.3d 497,
503 (1st Cir. 2012).

Instead, "liability for public officials

under section 1983 arises only if a plaintiff can establish that

14

his or her constitutional injury resulted from the directs acts
or omissions of the official, or from indirect conduct that
amounts to condonation or tacit authorization."
Ports Auth., 682 F.3d 40, 47 (1st Cir. 2012)

Graiales v. P.R.

(internal quotation

marks omitted).
Brown's allegations are insufficient to state a claim of
supervisor liability under§ 1983.

He offers only conclusory

allegations that the Attorney General had a duty to supervise and
failed to do so.

Brown states that the Attorney General and the

Maine Board of Professional Licensing had a duty to investigate
Brown's complaints and that their failure to do so violated
Brown's "Civil Rights" but does not identify the source of the
duty or the rights violated.

Brown also alleges that the

Attorney General was required by state law to take action against
the surveyor who provided a survey in the criminal action against
Brown, but that theory is based on state rather than federal law.
Brown fails to allege any facts to support a claim against
Elwood Ellis.

Brown speculates that if Ellis had investigated

his complaints against certain surveyors, Brown would not have
been convicted in the criminal action.

Such implausible

speculation does not state a claim under § 1983 or state law.

b.

Prosecutors

Brown alleges that District Attorney Geoff Rushlau and
Assistant District Attorney Lindsay Jones prosecuted the criminal

15

mischief charges against Brown.

They move to dismiss the claims

against them on the grounds of res judicata and absolute
prosecutorial immunity.

Brown asks the court to vacate the

judgments against Brown in Camden, 10-cv-063-GZS, and Ferrara,
12-cv-523-GZS.

Brown also argues that the state court judgments

do not have preclusive effect because of fraud by the Camden and
Rockport police, surveyors, and lawyers and that the prosecutors
withheld exculpatory evidence in the criminal prosecution against
him.
To the extent Brown bases his objection to the prosecutors'
motion to dismiss on his request to vacate the judgments in
Camden and Ferrara, his objection is frivolous.

The judgments

entered in those cases cannot be reconsidered in this case.
The doctrine of res judicata or claim preclusion protects a
party in a legal action against being required to relitigate the
same issue with the same party, or his privy, and promotes
judicial economy.
(1st Cir. 2011).

FleetBoston Fin. Corp. v. Alt, 638 F.3d 70, 79
A party asserting a defense based on the res

judicata effect of a federal court decision must establish: "(1)
a final judgment on the merits in an earlier suit,

(2) sufficient

identicality between the causes of action asserted in the earlier
and later suits, and (3) sufficient identicality between the
parties in the two suits."
omitted) .

Id.

(internal quotation marks

"The doctrine of res judicata dictates that a final

judgment on the merits of an action precludes the parties from

16

relitigating claims that were or could have been raised in the
prior action."

Haag v. Shulman, 683 F.3d 26, 30 (1st Cir. 2012).

In this case, the prosecutors assert that Brown did or could
have raised the present claims in the Camden case brought in this
court against both prosecutors.

In Camden, Brown brought claims

arising from his arrest and prosecution for taking down part of
Ferrara's fence.
including

§

He cited a list of civil rights statutes

1983 as the legal grounds for his claims.

In

support, he alleged that Rushlau failed to supervise Jones, that
Rushlau and Jones prosecuted Brown on a charge of criminal
mischief without evidence, that Rushlau and Jones erred in taking
the word of various witnesses which prevented Brown from
confronting witnesses, and that Rushlau and Jones failed to
provide exculpatory evidence.

He claimed that those actions

violated his Fifth and Sixth Amendment rights and caused other
harm.
The court concluded that Rushlau and Jones were entitled to
absolute prosecutorial immunity from liability for all of Brown's
federal claims and declined to exercise supplemental jurisdiction
as to any state law claims alleged.

The defendants' motions to

dismiss were granted, and judgment was entered against Brown.
The claims Brown alleges here either were or could have been
raised in Camden.
Camden.

A final judgment was entered against Brown in

10-cv-063-GZS (D. Me. May 10, 2010).

appeal that judgment.

Brown did not

Therefore, Brown's claims against Rushlau

17

and Jones in this case are barred by the doctrine of res
judicata.

c.

Judges

In Counts 1 and 2, Brown alleges that "[t]he award of a
Collateral Estoppels decision to Ferrara by Judge Westcott was a
premeditated attempt to defraud [Brown] of his property rights,
and violate [Brown's] Civil Rights, by using an Order for
Protection hearing to make an illegal change to the lot lines in
a Maine Subdivision without going through the Planning Board
Process" as required by Maine statutes and Camden subdivision
ordinances.

In Counts 4 and 5, Brown alleges that Judge Hjelm

would not provide the discovery Brown sought.

In Counts 7 and 8,

Brown alleges that Judge Hjelm denied him due process at a
pretrial hearing when he rejected certain evidence Brown sought
to introduce and taunted Brown by repeating "Maine Rules of
Evidence," refused to recuse himself, did not respond to Brown's
motions asking the court to provide copies of documents
supporting the indictment against Brown, and violated due process
by ignoring 30-A

M.R.S.A.

§§

4406 and 4407, made false

statements in his decision, knew that Ferrara's asserted lot line
was illegal, and intimidated Brown's attorney.
As is discussed above, judges are entitled to immunity from
suit for all actions taken in their judicial capacity unless they
act in the clear absence of jurisdiction.

18

Mireles, 502 U.S. at

11-12; Stump, 435 U.S. at 357.

Absolute judicial immunity

protects state judges from suit under§ 1983.
U.S. at 356.

See Stump, 435

Maine holds that judges are entitled to absolute

immunity from suits for damages arising from their judicial acts.
Richards, 233 A.2d at 38.
All of the actions Brown alleges were taken by the judges in
their judicial capacities.

Brown provides no basis to conclude

that the judges were acting without jurisdiction.

Therefore,

Judge Hjelm and Judge Westcott are entitled to absolute judicial
immunity, and all claims against them are dismissed.

3.

Camden's Motion to Dismiss

Camden challenges Brown's allegations on the ground that the
same allegations were deemed insufficient to support his claims
in prior litigation.

With respect to the present claim, Camden

contends that the allegations fail to state a cognizable claim
for municipal liability.

In response, Brown reviews his previous

litigation, argues that prior court decisions should be vacated,
and contends that his new claim against Camden based on its
zoning policy states a claim. 10
Brown alleges his claim against Camden in Count 15, as a
violation of § 1983 and § 1985.

As is noted above, Brown

provides no plausible basis for his

§

1985 claim.

Section 1983

To the extent Brown argues theories based on police action
and other matters, those are not pleaded in Count 15, which is
his only claim against Camden in this case.
10

19

provides a private right of action "against a person who, under
color of state law, deprives another of rights secured by the
Constitution or by federal law."
F.3d 226, 231 (1st Cir. 2012)
Municipal liability under

§

Mead v. Independence Ass'n, 684

(internal quotation marks omitted).

1983 attaches only when the

deprivation of a federally secured right occurred through an
official policy or custom.

Rodriguez v. Municipality of San

Juan, 659 F.3d 168, 181 (1st Cir. 2011).
In Count 15, Brown alleges in a general and conclusory
fashion that the State of Maine "knowingly, recklessly, or with
gross negligence failed to instruct, supervise, control and
discipline on a continuing basis the Town of Camden in their
duties to refrain from denying the Plaintiff and his rights,
privileges or immunities secured by the Constitution or by
Federal Law."

Am. Compl.

~

167.

Brown further alleges that

Maine and Camden were required by statute "to ensure that the
Stonehurst Subdivision complied to all State, Local and Federal
Law per the Maine Development Act and the Town Ordinances, but
failed to do so."

Am. Compl.

~

168.

The only specific

allegations pertaining to Camden are that the Camden Zoning
Office allowed houses to be built in an area protected by a Maine
Department of Environmental Protection Plan and allowed the
Ferraras to build a house that was too big for the lot.

Brown

also states that two other houses were improperly located in the
subdivision.

By way of relief, he asks for an order that, among

20

other things, directs Camden to "dismantle and move the houses."
The claims against the State of Maine have been dismissed.
Brown has not alleged a deprivation of a federally secured
right or any facts to make out a plausible claim that Camden
deprived him of a federally secured right.

Therefore, Brown's

allegations against Camden do not state a claim under either
§ 1983 or§ 1985 and are dismissed under Rule 12(b) (6).

4.

Steven Petersen's Motion to Dismiss

Brown alleges that Steven Petersen represented him in the
state court civil case brought against Brown by Ferrara.

The

only claim or claims against Petersen appear in Counts 7 and 8,
which are identified as violations of § 1983 and § 1985 and as
"Professional Misconduct by a Lawyer."

The focus of Counts 7 and

8 is Judge Hjelm, and the claims against Judge Hjelm have been
dismissed.

With respect to Petersen, Brown alleges only:

All that the Plaintiff's Attorney, Steven Petersen
would have had to do to get the case dismissed, was to
submit a Motion to Dismiss with a copy of Title 30-A,
M.R.S.A. 4407; which prohibits making changes to the
lot lines in a Maine Subdivision without going through
the Planning Board Process.
The Plaintiff contends
that Petersen's failure to file Motions to get the case
dismissed constitute Professional Misconduct by
Petersen.
Am.Compl.

~

127.

Because Brown has not alleged that Petersen was a state
actor, he has not alleged a § 1983 claim against Petersen.

See

The Real Estate Bar Ass'n for Mass., Inc. v. Nat'l Real Estate

21

Information Servs., 608 F.3d 110, 121 (1st Cir. 2010).
above, Brown provided no basis to support a
Petersen or any of the defendants.

§

As stated

1985 claim against

Therefore, to the extent

Brown intended to bring a civil rights claim against Petersen
under either

§

1983 or

§

1985, those claims are dismissed.

Brown may have intended to bring a legal malpractice claim
against Petersen, based on his title of "Professional Misconduct
by a Lawyer."

Petersen contends that Brown did not allege

sufficient facts to support that claim and, alternatively, that
the court should decline supplemental jurisdiction over the state
law claim.
Under Maine law, a legal malpractice claim consists of the
following elements: (1) that the defendant breached a duty owed
to his client to conform to the applicable standard of conduct;
and (2) that the breach harmed the plaintiff.
976 A.2d 940, 946 (2009).

Garland v. Roy,

Harm for purposes of legal malpractice

is that the plaintiff would have achieved a more favorable result
but for the defendant's breach of the standard of care.

Id.

Petersen contends that Brown's conclusory allegations do not
allege the elements of a legal malpractice claim.

Specifically,

Peterson argues that Brown's allegation that Ferrara's case would
have been dismissed if Petersen had moved to dismiss based on 30A M.R.S.A.

§

4407 is contrary to the circumstances of the case.

Judge Hjelm ruled in Ferrara's favor based on the existing
boundary markers "that were placed in the ground as part of the

22

original subdivision development

"

Ferrara v. Brown, RE-

09-10 (Maine Superior Court Nov. 8, 2010).

Because the decision

against Brown was based on the original subdivision markers,
M.R.S.A.

§

4407, which pertains to revisions to a subdivision

plan, was inapplicable.

Therefore, Brown has not provided

plausible allegations that his theory based on

§

4407 would have

provided a more favorable result.
Because Brown's legal malpractice claim is dismissed on the
merits, the court need not consider the application of
supplemental jurisdiction under 28 U.S.C.

E.

§

1367(c).

Motions for Sanctions
The Town of Camden moves for sanctions against Brown on the

grounds that his allegations against Camden repeat claims that
were dismissed from other cases Brown filed and that to the
extent Brown makes new claims, they are frivolous.

Camden seeks

an award of attorneys' fees against Brown as a sanction for
filing frivolous claims in this case against Camden.

Camden, the

Maine defendants, and Steven Petersen move for sanctions against
Brown to bar him from making any additional filings in this court
without prior court approval.
The Federal Rules of Civil Procedure apply to all litigants
and "impose an obligation, both on counsel and on individuals
acting as their own counsel, to comply with court rules and not
file frivolous motions."

United States v. Gomez-Rosario, 418

23

F.3d 90, 101 (1st Cir. 2005).

By signing a filing, a party

proceeding pro se certifies to the court "that to the best of
[his] knowledge, information and belief, formed after an inquiry
reasonable under the circumstances:"
made for an improper purpose,
are warranted,

(1) the filing is not being

(2) the contentions in the filing

(3) the factual allegations are supported by

evidence, and (4) denials of factual contentions are warranted.
Fed. R. Civ. P. 11(b).

Violation of Rule 11(b) may result in

imposition of sanctions that are sufficient to deter repetition
of the conduct that violated Rule 11(b) or similar conduct.
R. Civ. P. 11(c).

Fed.

A party required to defend a frivolous lawsuit

may be awarded the attorneys' fees incurred in the litigation.
Fed. R. Civ. P.11(c); McCarty v. Verizon New England, Inc., 674
F.3d 119, 123 (1st Cir. 2012).

1.

Camden's Motion for an Award of Attorneys' Fees

Camden seeks sanctions under Rule 11.

In response, Brown

argues that Camden and the judges in prior cases "disregarded the
Federal Rules of Civil Procedure" and "refused to cooperate with
the Rules of Discovery."

Brown also asserts that the court in

Ferrara, 10-cv-523-GZS, would not hear his theory that his state
criminal conviction was obtained by fraud and that federal judges
and court staff conspired against his rights.

He further asserts

that he has brought a new claim against Camden in this case
alleging that he was harassed by the Camden police, which

24

affected his ability to prosecute his claims in Ferrara, and that
Camden's policies and Camden police violated Brown's equal
protection rights in this case.
Brown previously brought suit against Camden, and others, in
Camden, 10-cv-63.
§

The claims against Camden, brought under

1983, were based on actions by Camden police and were

dismissed because Brown failed to allege any basis for municipal
liability.

Judgment was entered in Camden on May 10, 2010.

Undeterred, Brown filed a second suit in federal court on
December 20, 2010, which included claims against his neighbor,
Michael Ferrara, the Town of Camden, and others.

In Ferrara, 10-

cv-523-GZS, Brown brought federal claims in which he alleged
Camden's responsibility for the actions of others related to the
Stonehurst subdivision and the actions of the Camden police.

The

court dismissed Brown's claims against Camden on June 7, 2011,
based on the preclusive effect of the dismissal of his claims in
Camden.
After the claims against Camden were dismissed in Ferrara,
Brown incurred warnings from the court in response to his
frivolous filings.

The court warned Brown repeatedly that he

would face sanctions for further frivolous filings. 11

Despite

the repeated warnings in Ferrara, Brown continued to make
frivolous filings.

11

The court, nevertheless, declined to impose

See Ferrara, docket nos. 134, 203, 261, and 356)
25

sanctions on Brown in that case.

Judgment was entered against

Brown in Ferrara on June 15, 2012.
Brown filed this action, on November 10, 2011, again naming
the Town of Camden as a defendant, along with a long list of
other defendants.

As is discussed above, Camden's motion to

dismiss is granted, based on res judicata.

Camden is correct

that Brown's claims in this case against Camden are frivolous.
Brown filed a fourth suit in federal court on May 20, 2012,
again naming the Town of Camden as a defendant, along with thirty
other defendants.

Brown v. Wodruff, 12-cv-168-GZS.

In Wodruff,

the court found that "Plaintiff's Complaint is frivolous and
reflects a pattern of being an abusive litigant - a problem for
which [Brown] has received previous warnings," noting the three
warnings in Ferrara.

The court dismissed the complaint as

frivolous, and judgment was entered on May 31, 2012.
Brown's accusations and theories have been refuted in the
course of his years of litigation on these issues in state and
federal courts.

At this point, Brown no longer can hold a good

faith belief that a filing which makes the same accusations is in
compliance with Rule ll(b).

Brown has been warned repeatedly

that his frivolous filings will result in sanctions being imposed
against him, but he has ignored the warnings.

In view of this

lengthy history of frivolous filings, the time has arrived to
impose sanctions.

26

Camden's motion for an award of attorneys' fees incurred in
filing the motion to dismiss and the reply is granted.

2.

Motion to Require Prior Leave for Additional Filings

Camden, the Maine defendants, and Steven Petersen ask the
court to restrict Brown from making any further filings in this
court, including filing new actions, without prior leave of
court.

In support, the defendants cite Brown's history of

frivolous and abusive litigation and the prior warnings he has
received.
uFederal courts 'possess discretionary powers to regulate
the conduct of abusive litigants.'"

United States v. Gomez-

Rosario, 418 F.3d 90, 101 (1st Cir. 2005)

(quoting Cok v. Family

Court of R.I., 985 F.2d 32, 34 (1st Cir. 1993)).

uThis power

includes the ability to enjoin a party - even a pro se party from filing frivolous and vexatious motions."
F.3d at 101.

Gomez-Rosario, 418

Before an injunction issues, however, the party to

be enjoined must be warned that sanctions are being considered.
Cok, 985 F.2d at35.
As has been noted above, Brown has filed four actions in
this court pertaining to the same underlying matters:

his

boundary dispute with his neighbor that led to state criminal
proceedings against Brown and to a state court decision that
located the boundary in accord with the neighbor's position.
Brown has made conclusory and frivolous accusations against a

27

host of defendants who have been involved in some aspect of his
boundary dispute, court cases, and interactions with police.

The

court has warned Brown repeatedly that his claims and filings are
frivolous and that sanctions will be imposed for further
frivolous filings.

Nevertheless, Brown has continued to pursue

his meritless allegations.
One of our great rights and privileges as American citizens
is the right of access to our courts.

However, with rights come

responsibilities to exercise those rights in a reasonable manner.
When an individual uses the courts to promote his or her
vexatious intentions, for whatever reasons, by repeatedly
bringing meritless claims, then that individual has abused the
right of access to the courts.

Neither the judicial system nor

the parties who must respond can reasonably be expected to expend
their time and resources on such meritless actions.

Unfortun-

ately, when a point is reached where vexatious litigants by their
own actions have seriously compromised their right of access to
the courts, the courts, in the exercise of discretion, can place
reasonable restrictions on that right.
Therefore, to prevent Brown from continuing to abuse the
judicial process, from wasting judicial resources, and from
wasting the resources of parties who must respond to his
frivolous lawsuits, he will be enjoined from making new filings
in this court without prior permission of this court, except for
a filing, if any, challenging this order and a filing, if any, in
response to Camden's anticipated motion for attorneys' fees.
28

Summary of Rulings on Pending Motions
For the foregoing reasons, the motions are resolved as
follows.
The federal defendants' motion to amend (document no. 44)
and motion for extension of time (document no. 45) are denied.
The plaintiff's motion for a continuance (document no. 50)
and justification (document 57) are denied.
The defendants' motions to strike (documents no. 48, 54, 55,
and 64) are granted.

"Plaintiff Letter to Clarify Filings and

Response to Defendants Motions" (document no. 46) is struck from
the record.
The federal defendants' motion to dismiss (document no. 39)
is granted.

All claims against the federal defendants are

dismissed with prejudice.
The Maine defendants' motion to dismiss (document no. 32) is
granted.

All claims against the Maine defendants are dismissed

with prejudice.
The Town of Camden's motion to dismiss (document no. 28) is
granted.

All claims against the Town of Camden are dismissed

with prejudice.
Steven Petersen's motion to dismiss (document no. 33) is
granted.

All claims against Steven Petersen are dismissed with

prejudice.
The Town of Camden's motion for sanctions (document no. 47)
is granted.

Camden shall file a motion for an award of
29

reasonable attorneys' fees incurred in defending the claims
against Camden in this case on or before November 21, 2012.
Brown shall have fourteen days from the date the motion is filed
to respond.

Injunction
Now, therefore, based on the findings,

rulings, and history

of litigation that have been set forth in this order, the court
issues the following permanent injunction against Craig Brown.

Craig Brown is hereby permanently enjoined, restrained, and
otherwise prohibited from making any further filings or
initiating any further actions in the United States District
Court for the District of Maine without the prior permission of
this court, except for filings,

if any, challenging this order

and a response, if any, to Camden's motion for reasonable
attorneys' fees.
If Brown seeks to make any other filings in this court,
including initiating any new suits or actions, he must first file
a motion, not to exceed three pages, for permission to make that
filing.

As part of a motion for permission to file, Brown must:

(1) succinctly explain the type of filing he intends to
make,
(2) clearly state the claims he seeks to raise,

30

(3) attach an affidavit in which he certifies, under penalty
of perjury, that his claims made are new and have not been raised
previously in this court or any other court, and
(4) attach the proposed filing to the motion.
A judge of this court will review the motion and the proposed
filing and will determine in a written order whether to grant or
deny permission for the filing.

In the same order, the court

will direct the clerk of court either to docket the filing or to
return it to Craig Brown.
This injunction is effective forthwith.

Conclusion
The clerk of court shall enter judgment accordingly.

The

issue of attorneys' fees will be resolved in due course as
provided in this order.
SO ORDERED.

~~\~w~~·
OShA.Diclerico, Jr.
United States District Judge
(Sitting by designation.)
November 7, 2012
cc:

Craig Brown, pro se
James M. Bowie, Esq.
Frederick F. Costlow, Esq.
Ronald W. Lupton, Esq.
Evan J. Roth, Esq.

31