MCBRIDE et al v. CITY OF WESTBROOK
Filing
57
DECISION AND ORDER ON DEFENDANT CITY OF WESTBROOK'SMOTION FOR SUMMARY JUDGMENT ON PLAINTIFF McBRIDE'S CLAIMS denying 29 Motion for Summary Judgment By JUDGE D. BROCK HORNBY. (rmb)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KEVIN MCBRIDE,
PLAINTIFF
V.
CITY OF WESTBROOK,
DEFENDANT
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CIVIL NO. 2:13-CV-272-DBH
DECISION AND ORDER ON DEFENDANT CITY OF WESTBROOK’S
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF McBRIDE’S CLAIMS
After oral argument on February 9, 2015, and after considering the parties’
supplemental briefs, I DENY the City of Westbrook’s motion for summary
judgment against the plaintiff McBride. (I previously granted the City’s motion
as to the plaintiff Blake, and the individual defendant law enforcement officers’
motion as to both plaintiffs. See Dec. & Order on Defs.’ Mot. for Summ. J. dated
Nov. 19, 2014 (ECF No. 47).)
This is a case that cries out for factual
determinations before I make further legal rulings.
First, McBride’s status as a tenant-at-will is in dispute. It appears that if
he does not have that status, he will not be able to proceed further against the
City, and that is the end of the case. If he does have that status and the landlords
did not bring an Forcible Entry & Detainer (“FED”) proceeding against him and
obtain and serve a Writ of Possession, see 14 M.R.S.A. §§ 6001-05, his presence
in the apartment may not have been criminal trespass under 14 M.R.S.A. § 402
and the notice that the police served upon him may have been a nullity.
Second, the Westbrook Police Department’s role requires factual
determination. I am left uncertain to what extent the officers merely served the
notice (probably not alone enough for section 1983 liability) and to what extent
they affirmatively removed McBride (calling him to the apartment from his work
site, giving him 30 minutes to remove his belongings, telling him “you are being
evicted,” and requesting his keys).1
Third, on this record I cannot determine the scope of the Westbrook Police
Department’s policy or custom. I have already decided that there is a factual
issue here, Decision and Order on Defendants’ Motion for Summary Judgment
at 9, in the sense that the summary judgment record provides enough evidence
for a factfinder to conclude that Westbrook had a custom or practice of serving
the criminal trespass notices upon a landlord’s request (City pre-printed forms,
and police officers’ testimony2). But whether the custom or policy is to serve the
1 The City of Westbrook appears to object to my considering record deposition testimony in
denying the motion (particularly, reference to City officers taking McBride’s keys) on the basis
that the plaintiff does not cite this evidence in the statements of material or additional facts.
Def.’s Pre-Hearing Supplemental Mem. of Law in Supp. of Mot. for Summ. J. at 3, n.1 (ECF No.
53). However, the First Circuit has approved such a practice, finding it “consistent with the
language in the District of Maine Local Rule 56(f).” Packgen v. BP Exploration, Inc., 754 F.3d
61, 70 (1st Cir. 2014) (quoting District of Maine Local Rule 56(f), “which provides that the court
‘may disregard any statement of fact not supported by a specific citation to record material
properly considered on summary judgment.’” (emphasis in original)).
2 The Notice served on McBride is captioned “WESTBROOK POLICE CRIMINAL TRESPASS
NOTICE” and has a police “case #.” Stipulations Ex. 5 (ECF No. 31). These are City of Westbrook
Police Department notices, comprised of a printed form with blanks that the officers fill in as
needed. Dep. of Thomas Roth at 15 (ECF No. 34); Stipulations Ex. 5. Westbrook’s criminal
trespass notices state that the Westbrook police are acting as the “agent or representative” of the
landlords. Stipulations Ex. 5. At deposition, Westbrook Police Captain Roth testified that it was
the custom of the Westbrook Police Department to “follow the criminal trespass statute . . . if a
person has a place under their control and they request somebody removed or be kept from that
location, then we follow that.” Dep. of Thomas Roth at 9-10. He testified that he had served
“hundreds and hundreds” of criminal trespass notices “for a variety of reasons and
circumstances.” Dep. of Thomas Roth at 9. It is undisputed that “Captain Roth often helps
landlords in situations similar to the one in this case.” Pls.’ Statement of Additional Material
Facts ¶ 38; Defs.’ Response to Pls.’ Statement of Additional Facts ¶ 38. Officer May’s testimony
likewise evidences a custom of deference to the landlord in issuance of no trespass notices. For
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notices only on named persons or “occupants” who are listed in a Writ of
Possession (at oral argument the City’s lawyer argued that at most a negligent
error occurred here in serving McBride3), or whether the custom or policy is to
take the landlord’s word for who is a tenant in serving the notices, remains an
open question.4
Fourth, the parties have furnished me precious little information about
the use of criminal trespass notices elsewhere for private residential disputes
under Maine’s statute, how and why Westbrook’s pre-printed form was drafted
as it was, how other municipalities use such notices in connection with private
residential real estate, etc.
That seems to me to be important contextual
information for an injunctive or declaratory relief decision likely to have broad
ramifications, however it comes out.
At this stage, therefore, I decline to determine whether any process is due.
(The plaintiff urges that due process requires that for residential real property
the City issue criminal trespass notices only when presented with a Writ of
instance, Officer May testified at deposition that “[i]f the owner of the property requests a criminal
trespass notice to be served, then it will be served.” Dep. of Melissa May at 6 (ECF No. 36). Upon
being asked, “How do you determine who owns the property,” May replied, “I mean, if it’s a
landlord, then the landlord owns the property.” Id. at 7. When asked, “How do you determine if
the landlord owns the property that they say they own,” May responded, “I go on their word.” Id.
3 I remain uncertain whether this case can properly be assessed under the holding in Daniels v.
Williams, 474 U.S. 327 (1986), that negligent takings are not actionable under section 1983;
here the police officers intentionally sought McBride’s removal; if there was negligence—and I do
not yet know that—it was in treating McBride as lacking any tenant’s rights in the apartment.
That seems different from Daniels where there was no evidence of intent to injure the plaintiff
and the conduct was a jail employee’s allegedly leaving a pillow on the jail stairs, which caused
the plaintiff inmate to fall and injure himself. Here, a factfinder could find that the Westbrook
police intended to remove McBride from the apartment.
4 If the Westbrook Police Department’s policy is to serve the notices only on persons named in a
successful FED lawsuit and if what occurred here was simply a mistake, I am perplexed why the
parties are still in conflict over declaratory judgment and injunctive relief, since the plaintiff’s
lawyer at oral argument seemed to say that was the very relief requested.
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Possession naming the person to be served or naming “occupants.” The City
urges that Maine provides an adequate post-deprivation remedy by allowing an
improperly evicted tenant to sue the landlord under 14 M.R.S.A. § 6014. In turn,
the plaintiff argues that he has no remedy there. Neither party has cited me any
Maine cases applying that statute in analogous circumstances. In any event,
these arguments seem to implicate cases like Fuentes v. Shevin, 407 U.S. 67
(1972), cited by McBride,5 and Logan v. Zimmerman Brush Co., 455 U.S. 422
(1982), which neither party cites, as to when pre-deprivation hearings are
required.6)
As for Westbrook’s argument that I should grant it summary judgment on
McBride’s associational rights claim to have Blake visit him in his apartment, I
DENY the motion because I do not understand that to be McBride’s claim.
Instead, he is claiming that his property interests under Maine law include the
right to have visitors and that it is part of the property interests taken from him
without due process of law. Pls.’ Opp’n to Defs.’ Mot. for Summ. J. at 14 (ECF
No. 39). Therefore, that issue remains open as well.
SO ORDERED.
DATED THIS 17TH DAY OF FEBRUARY, 2015
/S/D. BROCK HORNBY
D. BROCK HORNBY
UNITED STATES DISTRICT JUDGE
Pls.’ Opp’n to Defs.’ Mot. for Summ. J. at 6 (ECF No. 39); Pls.’ Supplemental Mem. at 10 (ECF
No. 52).
6 I observe that Maine statutes provide pre-deprivation procedural protections for occupants who
are tenants under Maine Law. See 14 M.R.S.A. §§ 6001 et seq.
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