DOYLE v. TOWN OF SCARBOROUGH et al

Filing 36

ORDER adopting 27 Report and Recommended Decision for 16 Motion to Dismiss for Failure to State a Claim filed by TOWN OF SCARBOROUGH, SCARBOROUGH TOWN COUNCIL MEMBERS, 24 Renewed Motion to Dismiss filed by TOWN OF SCARBOROUGH, SCARBOROUGH P OLICE DEPARTMENT, THOMAS HALL, SCARBOROUGH TOWN COUNCIL MEMBERS, and 26 Supplemental Motion to Dismiss filed by KATHERINE ST. CLAIR, TOWN OF SCARBOROUGH, SCARBOROUGH POLICE DEPARTMENT, SHAWN BABINE, THOMAS HALL, WILLIAM DONOVAN, SCARBOROUGH TOWN COUNCIL MEMBERS, JEAN MARIE CATERINA, JESSICA HOLBROOK, PETER HAYES, EDWARD BLAISE; granting in part and denying in part 16 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 24 Renewed Motion to Dismiss; granting in part and denying in part 26 Supplemental Motion to Dismiss. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MICHAEL DOYLE,
Plaintiff,
v.
TOWN OF SCARBOROUGH, et al.,
Defendants.

)
)
)
)
)
)
)
)
)

2:15-cv-00227-JAW

ORDER AFFIRMING THE RECOMMENDED DECISION
OF THE MAGISTRATE JUDGE
Michael Doyle, a resident of Falmouth, claims that his First Amendment rights
were violated when the Scarborough Town Council demanded that he stop speaking
during the public comment period of two town meetings, and threatened to remove
him from the meetings if he continued to speak.
Before the Court are Defendants’ Motion to Dismiss (ECF No. 16), Renewed
Motion to Dismiss (ECF No. 24), and Supplemental Motion to Dismiss (ECF No. 26).
The United States Magistrate Judge filed with the Court on February 23, 2016 his
Recommended Decision on the Motions to Dismiss (ECF No. 27). The Plaintiff filed
his objection to the Recommended Decision on March 2, 2016 (ECF No. 29) and a
memorandum in support of his objection on March 7, 2016 (ECF No. 31). On March
23, 2016, Defendants filed their response to the objection (ECF No. 34).
Mr. Doyle objects to the Recommended Decision on two grounds. First, Mr.
Doyle argues that if the Town of Scarborough remains as a defendant, then the Town

Council should also remain as a defendant because it adopted and misapplied the
rules for addressing the Council in violation of his free speech rights. However, this
Court agrees with the Magistrate Judge that any claims against the Town Council as
a distinct entity should be dismissed. To the extent that Mr. Doyle alleges that there
is a custom or practice of violating his First Amendment rights through a contentbased application of the forum rules, the Town of Scarborough, and not the Town
Council, is the proper defendant under 42 U.S.C. § 1983. See Monell v. Dep’t of Soc.
Servs. of the City of New York, 436 U.S. 658, 694 (1978) (A local government is
responsible under section 1983 “when execution of [the] government’s policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly
be said to represent official policy, inflicts the injury”); Silva v. Worden, 130 F.3d 26,
31 (1st Cir. 1997) (A municipality may be liable where a custom or practice is so “wellsettled 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”); see also Cronin v. Town of Amesbury, 895 F. Supp. 375, 383 (D. Mass.
1995), aff'd, 81 F.3d 257 (1st Cir. 1996) (citing Tucker v. City of Montgomery, 410 F.
Supp. 494, 511 (M.D. Ala. 1976) (city council is not a person for section 1983
purposes)).
Additionally, Mr. Doyle argues that all of the councilmembers should be liable
because they failed to mitigate the violations of his First Amendment rights by not
objecting to certain members’ allegedly illegal conduct. However, as the Magistrate
Judge explains, the liability of individuals under § 1983 “must be gauged in terms of

2

their own actions.” Recommended Decision on Motions to Dismiss at 9 (ECF No. 27)
(Rec. Dec.) (citing Rogan v. Menino, 175 F.3d 75, 77 (1st Cir. 1999)); Welch v. Ciampa,
542 F.3d 927, 936 (1st Cir. 2008) (same); Vélez-Rivera v. Agosto-Alicea, 437 F.3d 145,
156 (1st Cir. 2006) (“It is well-established that ‘only those individuals who
participated in the conduct that deprived the plaintiff of his rights can be held liable’”)
(quoting Cepero-Rivera v. Fagundo, 414 F.3d 124, 129 (1st Cir. 2005)).
Although the First Circuit has recognized that an individual may be liable in
certain limited circumstances for a failure to intervene and stop potential civil rights
violations by other individuals, those circumstances are not present here. For
example, the First Circuit has imposed liability on individuals under § 1983 based on
a failure to intervene theory in the context of excessive force claims against police
officers and mental hospital staff. See e.g., Torres-Rivera v. O’Neill-Cancel, 406 F.3d
43, 52 (1st Cir. 2005) (“[A]n officer who is present at the scene and fails to take
reasonable steps to protect the victim of another officer’s excessive force can be held
liable under section 1983 for his nonfeasance”) (citing Gaudreault v. Municipality of
Salem, 923 F.2d 203, 207 n.3 (1st Cir. 1990)); Davis v. Rennie, 264 F.3d 86, 114 (1st
Cir. 2001) (holding that a nurse at the state mental hospital had a duty to intervene
and stop her supervisee’s use of excessive force). The First Circuit reasoned that
because police officers and the staff at a state mental hospital have a legal,
affirmative duty to protect individuals in their custody, they may be liable for
nonfeasance when they do not intervene to stop the use of excessive force by a fellow
officer or supervisee. Davis, 264 F.3d at 114.

3

This same rationale does not apply to Mr. Doyle’s First Amendment claims.
He is not in the custody of the Town Council, nor do the Town Councilmembers have
a legal, affirmative duty to act to protect Mr. Doyle. Additionally, as the Magistrate
Judge explained, nothing in the facts alleged or the law cited by Mr. Doyle suggests
that an individual councilmember has supervisory authority over a fellow member or
over a town manager. Rec. Dec. at 9 n.7. Thus, Defendants Babine, Blaise, Caterina,
Donovan, and Hayes may not be held liable for their failure to object when
Defendants Holbrook, St. Clair, and Hall allegedly violated Mr. Doyle’s First
Amendment rights.
Having performed a de novo determination of all matters adjudicated by the
Magistrate Judge, the Court concurs with the recommendations of the Magistrate
Judge for the reasons set forth in his Recommended Decision and for the additional
reasons set forth herein.
Over the objection of the Plaintiff, the Court ORDERS that the Recommended
Decision on Motions to Dismiss (ECF No. 27) is hereby AFFIRMED. The Court
hereby GRANTS IN PART and DENIES IN PART the Defendants’ Motion to Dismiss
(ECF No. 16), Renewed Motion to Dismiss (ECF No. 24), and Supplemental Motion
to Dismiss (ECF No. 26). Specifically, the Court GRANTS the motions to dismiss the
claims against the Scarborough Police Department and Defendants Babine, Blaise,
Caterina, Donovan, and Hayes. The Court also GRANTS the motions to dismiss the
claims against the Town of Scarborough based on Mr. Doyle’s facial challenge to the
Town’s written policy and based on the doctrine of respondeat superior. The Court

4

DENIES the motions to dismiss the claims against Defendants Holbrook, St. Clair,
and Hall. The Court also DENIES the motions to dismiss the claims against the Town
of Scarborough based on Mr. Doyle’s allegation of a custom or practice of violating the
Plaintiff’s rights.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 13th day of September, 2016

5