BERNARD, JR v. TOWN OF LEBANON MAINE

Filing 17

ORDER dismissing 16 Plaintiff's Motion for Leave to File a Motion to Amend; granting 13 Defendant's Motion to Dismiss. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
PAUL BERNARD, JR.,
Plaintiff,
v.
TOWN OF LEBANON, MAINE,
Defendant.

)
)
)
)
)
)
)
)
)

2:16-cv-00042-JAW

ORDER ON MOTION TO DISMISS
A former paramedic student has brought suit against a municipality, alleging
that the municipality violated his procedural due process rights when the chief of the
municipality’s rescue department publicly associated him with an investigation into
missing fentanyl. The former paramedic student asserts that as a result of the
defamatory statement, he was dismissed from the paramedic program at his
community college, and that his career as an EMT and future paramedic has been
destroyed. In addition to the procedural due process claim, the former paramedic
student also asserts a standalone claim for punitive damages.
The municipality moves to dismiss for failure to state a claim. The Court
dismisses the procedural due process claim because the former paramedic student
has not shown that the chief was involved in the community college’s decision to
dismiss the former paramedic student, and because the burdens on the student’s
future employment prospects, without more, are not constitutionally cognizable
injuries. Furthermore, the Court dismisses the punitive damages claim because

punitive damages are a remedy, not a standalone count. However, the Court grants
the student fourteen days to file a motion for leave to amend his complaint with a
properly framed amended pleading.
I.

BACKGROUND
A.

Procedural History

On January 26, 2016, Paul Bernard, Jr., filed a complaint against the town of
Lebanon, Maine (Town). Compl. (ECF No. 1) (Compl.). On March 10, 2016, the Town
filed a motion to dismiss for failure to state a claim. Def. Town’s Mot. to Dismiss Pl.’s
Compl. (ECF No. 4). Mr. Bernard responded on March 23, 2016. Obj. of Pl. Paul
Bernard, Jr. to the Def. Town of Lebanon’s Mot. to Dismiss Pl.’s Compl. (ECF No. 5).
In the final sentence of his response, Mr. Bernard moved for leave to amend his
complaint “to include a Due Process claim pursuant to 42 U.S.C. § 1983.” Id. at 11;
Mot. to Amend Compl. (ECF No. 6). The Town replied to Mr. Bernard’s response on
April 5, 2016. Def. Town’s Reply to Pl.’s Resp. to the Town’s Mot. to Dismiss Pl.’s
Compl. (ECF No. 8).
On July 22, 2016, the Magistrate Judge issued a recommended decision in
which he recommended that the Court grant Mr. Bernard’s motion to amend the
complaint. Recommended Decision on Mot. to Dismiss and Mot. to Amend at 1 (ECF
No. 9) (Recommended Decision).

On August 15, 2016, the Court adopted the

Magistrate Judge’s recommendation without objection and permitted Mr. Bernard
ten days to file an amended complaint, following which the Court would deny the
Town’s motion to dismiss, but failing which the Court would grant the motion with

2

prejudice. Order Affirming the Recommended Decision of the Magistrate Judge at 1
(ECF No. 10) (Order). Mr. Bernard filed an amended complaint on August 23, 2016,
First Am. Compl. (ECF No. 11) (Am. Compl.), and the Court denied the Town’s motion
to dismiss the same day. Order Den. Mot. to Dismiss for Failure to State a Claim
(ECF No. 12).
On September 13, 2016, the Town filed a motion to dismiss Mr. Bernard’s
amended complaint. Def. Town’s Mot. to Dismiss Pl.’s Am. Compl. (ECF No. 13)
(Def.’s Mot.). On September 22, 2016, Mr. Bernard filed a response. Obj. of Pl. Paul
Bernard Jr. to the Def. Town of Lebanon’s Mot. to Dismiss Pl.’s Am. Compl. (ECF No.
14) (Pl.’s Resp.). The Town replied on October 6, 2016. Def. Town’s Reply to Pl.’s Obj.
to Town’s Mot. to Dismiss Pl.’s Am. Compl. (ECF No. 15) (Def.’s Reply).
B.

The Alleged Facts1

Paul Bernard, Jr., is a resident of Dover, New Hampshire. Am. Compl. ¶ 1.
Mr. Bernard became an EMT in 2008. Id. ¶ 7. In September 2012, Mr. Bernard
began attending Northern Essex Community College (NECC) in Massachusetts to
become a paramedic.

Id.

Mr. Bernard started a field internship with Cataldo

Ambulance, a Massachusetts company, in December 2013. Id. ¶ 8. In January 2014,
Mr. Bernard went on a Cataldo Ambulance call during which a patient was
administered an entire pre-filled syringe (2 mg) of Narcan. Id. ¶ 9. After transporting

In considering a motion to dismiss, a court is required to “accept as true all the factual
allegations in the complaint and construe all reasonable inferences in favor of the plaintiff [].” Sanchez
v. Pereira-Castillo, 590 F.3d 31, 41 (1st Cir. 2009) (quoting Alternative Energy, Inc. v. St. Paul Fire &
Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001)).
1

3

the patient to the hospital, Mr. Bernard’s supervisor asked if Mr. Bernard wanted to
keep the empty vial of Narcan for training purposes. Id. ¶ 10. Mr. Bernard replied,
“Yes, as long as it’s okay,” and the supervisor gave him the empty vial. Id.
On about January 28, 2014, Mr. Bernard had a telephone conversation with
Mario Stefano, an employee of the Lebanon Rescue Department. Id. ¶ 11. Mr.
Bernard had been working as an EMT for the Lebanon Rescue Department since
August 2013. Id. The conversation revolved around another employee and possible
missing Fentanyl—a matter that Mr. Bernard alleges had nothing to do with him.
Id. During the conversation, it came up that the other employee possessed empty
vials, and Mr. Stefano opined that this was illegal. Id. Mr. Bernard immediately told
Mr. Stefano about the Narcan vial that his supervisor at Cataldo Ambulance
permitted him to keep for training. Id. Mr. Bernard stated he did not believe it was
illegal to possess the empty vial but that he would nevertheless discard the vial the
following day, which he did. Id.
Mr. Bernard alleges that Lebanon Rescue Chief Raymond Parent then ordered
Mr. Stefano to call Cataldo Ambulance regarding Mr. Bernard. Id. ¶ 12. On January
29, 2014, Mr. Bernard received a call from the Clinical Director of Cataldo Ambulance
informing him that he was being suspended due to an “ongoing investigation” but did
not refer to the empty vial. Id. ¶ 13. Later that day, Rory Putnam, Mr. Bernard’s
Clinical Advisor at NECC asked Mr. Bernard, “What’s going on in Lebanon?” Id. Mr.
Bernard responded that he did not know what Mr. Putnam was talking about. Id.
Mr. Putnam informed Mr. Bernard that there was a “fentanyl investigation” and that

4

someone from the Lebanon Rescue Department had called Cataldo Ambulance and
said that Mr. Bernard was being investigated for fentanyl and the vial. Id.
Mr. Bernard alleges that he has never been the subject of a fentanyl
investigation. Id. ¶ 14. Further, Mr. Bernard asserts that as a result of the Lebanon
Rescue Department’s communication with Cataldo Ambulence, he was dismissed
from the paramedic program at NECC and his career as an EMT and future
paramedic has been effectively destroyed. Id.
C.

Counts in the Amended Complaint

In Count I, Mr. Bernard asserts:
Defendant, Town of Lebanon, through its duly authorized agents,
engage[d] in conduct . . . that directly deprived Plaintiff of his
constitutional due process rights not only through their own individual
acts and conduct, but by setting in motion a series of acts by others
which Defendant knew, or reasonably should have known, would cause
Plaintiff to be deprived of his constitutional rights of due process and
would result in his losing his career and livelihood and to suffer other
direct and consequential damages.
Id. ¶ 19. Specifically, Mr. Bernard alleges that the Town, through its agents, made
defamatory statements to Cataldo Ambulance that culminated in his dismissal from
the paramedic program at NECC. Id. ¶¶ 12, 14, 16.

Mr. Bernard states that the

Town’s conduct resulted in damage to his reputation, the loss of his career, a loss of
income and earning capacity, emotional distress, attorney’s fees, and other direct and
consequential damages. Id. ¶¶ 16, 19–21.
In Count II, Mr. Bernard asserts that the Town’s conduct was “motivated by
ill will” or that its conduct was “so outrageous that malice toward [Mr. Bernard] can
be implied.” Id. at 23. Consequently, Mr. Bernard states that he is entitled to an
5

award of punitive damages. Id. ¶¶ 22–24. The Town seeks dismissal of both counts
in Mr. Bernard’s Amended Complaint. Def.’s Mot. at 1.
II.

LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) provides that a court may dismiss a

complaint for “failure to state a claim upon which relief can be granted.” FED. R. CIV.
P. 12(b)(6). To state a claim, a complaint must contain, among other things, “a short
and plain statement of the claim showing that the pleader is entitled to relief.” FED.
R. CIV. P. 8(a)(2).

“[T]he pleading standard Rule 8 announces does not require

‘detailed factual allegations[.]’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Towmbly, 550 U.S. 544, 555 (2007)). Rather, to survive a motion
to dismiss, a complaint must contain “sufficient factual matter, accepted as true, to
‘state a claim to relief that is plausible on its face.’” Id. (quoting Twombly, 550 U.S.
at 570). A claim is facially plausible when “the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
Although a court must accept as true the factual matter contained in the
complaint, the court is “not bound to credit ‘bald assertions, unsupportable
conclusions, and opprobrious epithets.’” Campagna v. Mass. Dep’t of Envtl. Prot., 334
F.3d 150, 155 (1st Cir. 2003) (quoting Dartmouth Review v. Dartmouth Coll., 889 F.2d
13, 16 (1st Cir. 1989), overruled on other grounds by Educadores Puertorriqueños en
Acción v. Hernández, 367 F.3d 61, 64 (1st Cir. 2004)). “A pleading that offers ‘labels
and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not

6

do.’” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). The First Circuit
summarized the proper analytic path in Schatz v. Republican State Leadership
Comm., 669 F.3d 50 (1st Cir. 2012):
Step one: isolate and ignore statements in the complaint that simply
offer legal labels and conclusions or merely rehash cause-of-action
elements. Step two: take the complaint’s well-pled (i.e., non-conclusory,
non-speculative) facts as true, drawing all reasonable inferences in the
pleader’s favor, and see if they plausibly narrate a claim for relief.
Id. at 55 (internal citations omitted).
III.

DISCUSSION
A.

Procedural Due Process

In evaluating a procedural due process claim under the Fourteenth
Amendment, the Court must determine “whether [the plaintiff] was deprived of a
protected interest, and, if so, what process was his due.” Garcia-Gonzalez v. PuigMorales, 761 F.3d 81, 88 (1st Cir. 2014) (quoting Logan v. Zimmerman Brush Co.,
455 U.S. 422, 428 (1982) (alteration in original)).

Accordingly, “[t]o establish a

procedural due process violation, the plaintiff must identify a protected liberty or
property interest and allege that the defendants, acting under color of state law,
deprived [him] of that interest without constitutionally adequate process.

Id.

(quoting Gonzelez-Droz v. Gonzalez-Colon, 660 F.3d 1, 13 (1st Cir. 2011) (internal
quotation marks omitted) (alterations in original)). In other words, procedural due
process claims require three distinct allegations: “(i) the existence of an interest that
falls within the definition of either ‘property’ or ‘liberty’; (ii) deprivation of that
interest by a person acting under color of state law; (iii) without constitutionally

7

adequate process.” Temple v. Inhabitants of Belfast, 30 F. Supp. 2d 60, 65 (D. Me.
1998); N. Creek Farm, Inc. v. Inhabitants of Phippsburg, No. 08-43-P-S, 2009 U.S.
Dist. LEXIS 1469, *43–44 (D. Me. Jan. 8, 2009), aff’d 2009 U.S. Dist. LEXIS 8970 (D.
Me. Feb. 6, 2009).
In its motion to dismiss, the Town first argues that Mr. Bernard cannot make
out a procedural due process claim against the Town in connection with his
employment as an EMT with the Town’s Rescue Department. Def.’s Mot. at 5. The
Town asserts that Mr. Bernard has failed to allege that his employment at the
Lebanon Rescue Department is a protected property interest. Id. Additionally, the
Town points out that there is no indication that Mr. Bernard ever lost his job as an
EMT with the Lebanon Rescue Department. Id. Because there is no allegation that
the Town deprived Mr. Bernard of his employment with the Department, the Town
argues Mr. Bernard has failed to assert a procedural due process violation. Id. (citing
Temple, 30 F. Supp. 2d at 65 ). Turning next to Mr. Bernard’s dismissal from the
paramedic program at NECC, the Town argues that the decision of a community
college in Massachusetts to remove Mr. Bernard from its paramedic program cannot
form the basis of a procedural due process claim against the Town. Id.
Mr. Bernard’s response does not engage the Town’s arguments. Rather, Mr.
Bernard simply reiterates that the Town employed Mr. Bernard and insists that “as
a result of [the Town’s] violation of [Mr. Bernard’s] constitutional due process rights,
[Mr. Bernard] lost his livelihood, his career, and suffered economic damages, all of
which are property rights.”

Pl.’s Resp. at 3.

8

However, Mr. Bernard offers no

argument and cites no case law in support of his conclusion that the Town violated
his procedural due process rights.
As far as the Court can tell from the face of his Amended Complaint, Mr.
Bernard alleges that the Town violated his procedural due process rights when
Lebanon Rescue Chief Parent ordered Mr. Stefano to contact Cataldo Ambulance and
to provide the ambulance company with allegedly false information regarding Mr.
Bernard’s involvement with an ongoing fentanyl investigation. Am. Compl. ¶¶ 11–
13. Mr. Bernard asserts that “due to the defamation perpetrated by agents and
employees of the Town of Lebanon,” id. ¶ 14, Mr. Bernard suffered “damage to his
reputation.” Id. ¶ 16. Further, Mr. Bernard alleges that based on the defamatory
statement, Mr. Bernard was dismissed from NECC’s paramedic program and that his
career as an EMT and future paramedic “has been effectively destroyed.” Id. ¶ 14.
Although he does not label it as such, Mr. Bernard essentially advances a socalled “stigma plus” claim. In Wisconsin v. Constantineau, 400 U.S. 433 (1971), the
Supreme Court held that an individual has a protectable due process interest in his
or her reputation. “Where a person’s good name, reputation, honor, or integrity is at
stake because of what the government is doing to him, notice and an opportunity to
be heard are essential.” Id. at 437. However, the Supreme Court subsequently
clarified that a due process claim cannot rest upon reputational harm alone. See Paul
v. Davis, 424 U.S. 693, 701–02 (1976). Rather, when a person alleges that he has
suffered stigmatization at the hands of a government actor, he “must show an adverse
effect on some interest more tangible than reputational harm.” Mead v. Independence

9

Ass’n, 684 F.3d 226, 233 (1st Cir. 2012) (quoting URI Student Senate v. Town of
Narragansett, 631 F.3d 1, 10 (1st Cir. 2011)). That is, “the reputational injury must
be accompanied by a change in the injured person’s status or rights under substantive
state or federal law.” Id. (quoting Silva v. Worden, 130 F.3d 26, 32 (1st Cir. 1997)).
In other words, the plaintiff must satisfy a “stigma plus” standard. Id. (citing URI
Student Senate v. Town of Narragansett, 631 F.3d 1, 10 (1st Cir. 2011)).
In the present case, Mr. Bernard clearly satisfies the “stigma” prong. It is a
fair inference that an individual in the healthcare field who is accused of being linked
to an investigation into prescription drug abuse faces stigmatization and serious
reputational harm.

With respect to the “plus” prong, the Amended Complaint

identifies two “more tangible” adverse effects that flowed from the allegedly
defamatory statement: (1) Mr. Bernard’s dismissal from NECC’s paramedic program,
and (2) the burdens on his future employment prospects. The Court addresses these
consequences in turn.
1.

Dismissal from NECC2

Although Mr. Bernard asserts that he was dismissed from the NECC paramedic program as a
result of the alleged defamation, he has not alleged that he lost his employment as an EMT with the
Lebanon Rescue Department. Nor is it clear from his Amended Complaint whether Mr. Bernard lost
his internship with Cataldo Ambulance. Mr. Bernard’s original Complaint, however, states that Mr.
Bernard “was dismissed and/or suspended from both his field internship at Cataldo Ambulance and
the Paramedic program and Northern Essex Community College . . . .” Compl. ¶ 32.
Even if Cataldo Ambulance did dismiss Mr. Bernard as a result of the alleged defamation, Mr.
Bernard cannot use the loss of his internship to satisfy the “stigma plus” standard because it appears
that Cataldo Ambulance is a private employer. In Pendleton v. City of Haverhill, 156 F.3d 57 (1st Cir.
1998), the First Circuit explained that “a violation of constitutional proportions under a stigma plus
theory exists only if, and to the extent that, the opportunities lost are government benefices denied as
a result of government action.” Id. at 63. Although the government may regulate Cataldo Ambulance
and provide it with some funding, there is no indication in the Amended Complaint that Cataldo
Ambulance is a government employer for purposes of a procedural due process claim. Therefore, Mr.
Bernard may not base his procedural due process claim on the loss of his internship with Cataldo
Ambulance.
2

10

To satisfy the “plus” prong of the “stigma plus” standard, Mr. Bernard must
show that the government’s alleged defamation was “accompanied by a change in
[his] status or rights under substantive state or federal law.” Mead, 684 F.3d at 233
(quoting Silva v. Worden, 130 F.3d at 32).

As an initial matter, Mr. Bernard’s

dismissal from the paramedic program at his community college constitutes a change
in his rights under substantive state or federal law. See Gorman v. University of
Rhode Island, 837 F.2d 7, 12 (1st Cir. 1988) (holding that a student’s interest in
pursuing an education is included within the Fourteenth Amendment’s protection of
liberty and property, and thus a student facing expulsion or suspension from a public
university is entitled to the protections of due process).
However, in order for a defendant to be liable under a “stigma plus” theory, the
defendant must be responsible for both the reputational harm as well as the loss of
the government benefit. See Johnson v. Collins, Civil No. 02-531-B, 2004 U.S. Dist.
LEXIS 806 at *16–17 (D.N.H. Jan. 23, 2004) (citing Hawkins v. R.I. Lottery Comm’n,
238 F.3d 112, 115 (1st Cir. 2001)). For instance, in Johnson—a case factually similar
to this one—a public high school student and his parents brought suit against a town
and its police chief, claiming that that the police chief defamed the student by
conducting a “public campaign” of false accusations that led to the student’s
expulsion. Id. at *7–8. The District of New Hampshire granted summary judgment
in favor of the police chief and the town on the plaintiffs’ “stigma plus” claim because
the police chief did not participate in the school board’s decision to expel the student.
Id. at *16–17 (citing Hawkins, 238 F.3d 112, 115–16); see also URI, 631 F.3d at 10

11

(“The [stigma plus] standard requires that the change in rights or status be directly
attributable to the challenged governmental action. Where the stigma and the
incremental harm—the ‘plus' factor—derive from distinct sources, a party cannot
make out a viable procedural due process claim”) (emphasis added); Pendleton v. City
of Haverhill, 156 F.3d 57, 63 (1st Cir. 1998) (holding that the plaintiff did not have a
valid “plus” because the alleged defamation and the decision to terminate the plaintiff
came from two separate, unrelated sources); Mead, 684 F.3d at 233 (same).
Here, there is no allegation that any of the agents of the Town, including Chief
Parent or Mr. Stefano, were directly involved in the decision to remove Mr. Bernard
from the NECC paramedic program. In fact, there is no indication that anyone from
the Town communicated with NECC at all. Rather, Chief Parent instructed Mr.
Stefano to contact Cataldo Ambulance, who then presumably notified NECC. Am.
Compl. ¶ 12. Because there is no evidence that any agents of the Town were involved
with the decision to dismiss Mr. Bernard from his educational program, First Circuit
precedent establishes that Mr. Bernard is unable to satisfy the “plus” prong based on
his dismissal from the NECC paramedic program. See URI, 631 F.3d at 10.
2.

Burdens on Employment Prospects

Mr. Bernard also alleges that due to the Town’s defamatory statement to
Cataldo Ambulance, his career as an EMT and future paramedic “has been effectively
destroyed.” Id. ¶ 14. However, Mr. Bernard’s “plus” cannot be “the imposition of
tangible burdens on [his] future employment prospects.” Mead, 684 F.3d at 235
(citing Siegert v. Gilley, 500 U.S. 226, 233–34 (1991) (holding that neither

12

reputational harm nor the consequent impairment of future employment
opportunities are constitutionally cognizable injuries)).
Some circuits hold that a plaintiff who faces stigmatization at the hands of the
government may have a valid “plus” in cases where a statute—rather than mere
reputational harm—impairs a plaintiff’s employment prospects. See Valmonte v.
Bane, 18 F.3d 992, 1001–02 (2nd Cir. 1994) (holding that a plaintiff who faced
stigmatization when the government included her name on a registry of child abusers
had a valid “plus” where a statute required potential employers to consult the registry
before making any hires); Humphries v. Cty. of Los Angeles, 554 F.3d 1170, 1187–92
(9th Cir. 2009), rev’d on other grounds, Los Angeles Cty. v. Humphries, 562 U.S. 29
(2010) (holding that plaintiffs who faced stigmatization when the government
included their names on a database of child abusers had a valid “plus” where a statute
required state agencies to check the database before granting certain licenses). In
the present case, however, Mr. Bernard does not allege that any statutory scheme
prevents him from pursuing a career as an EMT or a paramedic as a result of Chief
Parent and Mr. Stefano’s alleged defamation. Accordingly, the Court concludes that
Mr. Bernard is unable to satisfy the “plus” prong either by reference to his dismissal
from the NECC paramedic program or to the burdens on his future employment.
Because Mr. Bernard asserts no other grounds on which the Court can find a
plausible procedural due process claim, the Court dismisses Count I of Mr. Bernard’s
complaint.

13

B.

Municipal Liability

Notably, Mr. Bernard did not bring suit against Chief Parent or Mr. Stefano;
rather, he filed suit only against the town of Lebanon. Even assuming that Chief
Parent and Mr. Stefano’s conduct violated Mr. Bernard’s procedural due process
rights when they contacted Cataldo Ambulance and relayed the allegedly defamatory
statements, it does not follow that the Town is necessarily liable as well. “[M]unicipal
liability is not vicarious.” Estate of Bennett v. Wainwright, 548 F.3d 155 (1st Cir.
2008); see also Gaudreault v. Municipality of Salem, Mass., 923 F.2d 203, 209 (1st
Cir. 1990). In order to succeed on a claim of municipal liability, a plaintiff must show
(1) that the municipality adopted a policy or custom that evidenced a “deliberate
indifference” to the constitutional rights of its inhabitants, and (2) that this policy or
custom was the cause of, and moving force behind, the plaintiff’s alleged
constitutional injury. See Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756, 769
(quoting Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir. 2008)); Young v. City of
Providence ex rel. Napolitano, 404 F.3d 4, 26 (1st Cir. 2005); Foley v. City of Lowell,
Mass., 948 F.2d 10, 14 (1st Cir. 1991). Mr. Bernard makes no argument that the
Town adopted a policy or custom that evidenced a deliberate indifference to the rights
of its inhabitants, nor does Mr. Bernard allege any facts that suggest the existence of
such a policy. For this reason as well, the Court concludes that Mr. Bernard has
failed to state a claim in Count I.

14

C.

Punitive Damages

Count II of the Amended Complaint states a separate demand for punitive
damages for the Town’s alleged violations of Mr. Bernard’s due process rights. Am.
Compl. ¶¶ 22–24. However, “a claim for punitive damages ‘is not a separate and
distinct cause of action under Maine law. Rather, it is a type of remedy.” Goldenson
v. Steffens, 802 F. Supp. 2d 240, 270 (D. Me. 2011) (quoting Frank v. L.L. Bean, Inc.,
352 F. Supp. 2d 8, 13 (D. Me. 2005)). In other words, Mr. Bernard may attempt to
secure a punitive damages remedy against the Town on Count I, but he may not
assert a claim of punitive damages as a standalone cause of action. The Court
therefore dismisses Count II.3
D.

Motion for Leave to File Motion to Amend the Complaint

In the final sentence of his response to the Town’s original motion to dismiss,
Mr. Bernard requested leave to amend his complaint “to include a Due Process claim
pursuant to 42 U.S.C §1983.” Obj. of Pl. Paul Bernard, Jr. to the Def. Town of
Lebanon’s Mot. to Dismiss Pl.’s Compl. at 11. The Magistrate Judge explained, “In
this court, a plaintiff seeking leave to amend a complaint should file a separate
motion, which should include as an exhibit the proposed amended complaint.”
Recommended Decision at 1, n.1. Despite Mr. Bernard’s failure to observe the proper
filing requirements, the Magistrate Judge nevertheless recommended that the Court

The Defendants also argue that Count II should be dismissed because punitive damages are
not available under the Maine Tort Claims Act or 42 U.S.C. § 1983. Defs.’ Mot. at 6–7. The Court does
not reach this argument as Count II fails because standalone counts for punitive damages are not
permissible. Furthermore, the issue may not be amenable to resolution by a motion to dismiss. See
e.g. McLain v. Milligan, 847 F. Supp. 970, 981, n.13 (1994); McCue v. City of Bangor, No. 1:14-cv00098-GZS, 2014 U.S. Dist. LEXIS 97980, at *4, n.3 (D. Me. June 13, 2014),
3

15

grant Mr. Bernard leave to amend his complaint. Id. at 5–6. The Magistrate Judge
reasoned that the Court had not yet issued a scheduling order in the case, and
consequently, the liberal standard of Federal Rule of Civil Procedure 15(a) applied—
namely, that leave to amend should be “freely given when justice so requires.” Id.
(citing Steir v. Girl Scouts of the USA, 383 F.3d 7, 11–12 (1st Cir. 2004)). The Court
adopted the Magistrate Judge’s recommendation and granted Mr. Bernard leave to
amend his complaint. Order at 1.
Mr. Bernard filed an amended complaint, Am. Compl., and the Town moved
once again to dismiss. Def.’s Mot. As before, in final line of his response, Mr. Bernard
requests “the opportunity to file a Motion for Leave to Amend Complaint to more
specifically plead facts that set forth the prima facie elements for a cause of action for
[a] violation of procedural due process rights.” Pl.’s Resp. at 6 (separately docketed
as Mot. for Leave to File Mot. to Amend Compl. (ECF No. 16)). However, Mr. Bernard
does not need the Court’s permission to file a motion for leave to amend his complaint.
Therefore, the Court DISMISSES as moot Mr. Bernard’s motion for leave to file a
motion to amend the complaint.
As the Magistrate Judge previously made clear, a plaintiff seeking leave to
amend a complaint should file a separate motion, which should include as an exhibit
the proposed amended complaint. Levitt v. Sonardyne, Inc., No. 2:12-cv-00032-JAW,
2012 U.S. Dist. LEXIS 154875, at *4 (D. Me. Oct. 29, 2012). A plaintiff may properly
move for leave to amend the complaint at any time before the entry of judgment, even
after a dismissal for failure to state a claim. See U.S. ex rel. Ge v. Takeda Pharm.

16

Co., 737 F.3d 116, 128 (1st Cir. 2013) (citing Palmer v. Champion Mortg., 465 F.3d
24, 30 (1st Cir. 2006)).
The purpose of submitting a separate motion along with the proposed
amended complaint is to enable the Court to evaluate the nature of the proposed
amendment and its sufficiency. Levitt, 2012 U.S. Dist. LEXIS 154875, at *4. Without
more than the single sentence in Mr. Bernard’s response, the Court is unable to
determine whether to grant Mr. Bernard leave to amend his complaint. See also Gray
v. Evercore Restructuring LLC, 544 F.3d 320, 327 (1st Cir. 2008) (“As [the plaintiff]
failed to request leave to amend, the district court cannot be faulted for failing to
grant such leave sua sponte”). Indeed, the Court has already given Mr. Bernard one
opportunity to cure the defects of his Complaint, and granting further amendments
without any justification risks prejudice not only to the Town, but also to its taxpayers
who fund the ongoing litigation. See also Foman v. Davis, 371 U.S. 178, 182 (1962)
(holding that leave to amend should be “freely given” in the absence of, among other
things, “repeated failure to cure deficiencies by amendments previously allowed” and
“undue prejudice to the opposing party by virtue of allowance of the amendment”).
If Mr. Bernard desires to amend his Complaint, he must set forth his
justifications in a separate motion and attach his proposed amended complaint as an
exhibit before the Court enters judgment. To give Mr. Bernard an opportunity to
properly file his motion for leave to amend his complaint, the Court will withhold
issuing final judgment for fourteen (14) days following this Order. If Mr. Bernard

17

fails to file a proper motion in this period, he will have waived his right to file a motion
for leave to further amend his complaint.
IV.

CONCLUSION
The Court GRANTS the Town of Lebanon’s Motion to Dismiss Plaintiff’s

Amended Complaint. (ECF No. 13). The Court DISMISSES Counts I and II of Mr.
Bernard’s First Amended Complaint and Demand for Jury Trial (ECF No. 11). The
Court DISMISSES Mr. Bernard’s motion for leave to file a motion to amend the
complaint. (ECF No. 16). The Court withholds issuing final judgment for fourteen
(14) days following this Order to give Mr. Bernard an opportunity to file a motion for
leave to amend his amended complaint.
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of April, 2017

18