ADAMS v. LANDRY et al

Filing 32

REPORT AND RECOMMENDED DECISION re 27 MOTION for Partial Summary Judgment filed by SCOTT MCCAFFERY, GLEAN BROWN, PENNY BAILEY. Objections to R&R due by 9/20/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
JON R. ADAMS,

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Plaintiff
v.
SCOTT LANDRY et al.,
Defendants

2:17-cv-00357-JAW

RECOMMENDED DECISION ON DEFENDANTS’ MOTION
FOR PARTIAL SUMMARY JUDGMENT
In this action, Plaintiff contends that while he was confined at the Maine
Correctional Center in Windham, Defendants violated his constitutional right to protection
against a serious threat posed by another prisoner.
The matter is before the Court on Defendants’ Motion for Partial Summary
Judgment. (ECF No. 27.) Plaintiff did not file a response to the motion.
Following a review of the record, and after consideration of Defendants’ arguments,
I recommend the Court grant the motion.
Background
On July 17, 2015, Plaintiff commenced a prior action in which he asserted the same
claims he asserts in this action. Adams v. Landry, No. 2:15-cv-00282-JAW (Am. Compl.,
ECF No. 25) (the prior action). In the prior action, on September 28, 2015, Plaintiff
informed the Court that he was no longer in state custody, and provided the Court with a
new address. (Prior Action, ECF No. 31.) On November 27, 2015, Plaintiff advised the

Court that he was confined at the Cumberland County Jail, and he requested information
regarding the “status of [his] pending suits in this Court.”1 (Prior Action, ECF No. 36.)
On December 7, 2015, Plaintiff informed the Court that he was soon to be released to a
rehabilitation center in Auburn, Maine, and he provided the address of the center. (Prior
Action, ECF No. 37.)
In January, 2016, the U.S. Postal Service returned to the Court articles of mail the
Court sent to Plaintiff. The Postal Service stamped the envelopes “not deliverable as
addressed, unable to forward,” and the writing on both envelopes suggested that Plaintiff
had moved from the rehabilitation center. (Prior Action, ECF Nos. 40, 41.) Plaintiff did
not inform the Court of any further change of address or otherwise make filings or
communicate with the Court for more than six months. The Court subsequently granted
Defendants’ Motion to Dismiss the prior action based on Plaintiff’s failure to prosecute,
and entered judgment dismissing the action without prejudice. (Prior Action, ECF Nos.
48, 49.)
In June 2017, Plaintiff filed a motion to “refile” or “reopen” the prior action. (Prior
Action, ECF No. 51.) At the time, Plaintiff again was confined at the Maine Correctional
Center. The Court denied Plaintiff’s request to reopen the case, but noted that Plaintiff
could refile the action. (Prior Action, ECF No. 56.)
Plaintiff filed the complaint in this action on September 14, 2017. (ECF No. 1.)
Plaintiff was released from custody, and he provided the Court with notice of a new

Plaintiff’s other civil action was Adams v. Cummings, et al., No. 2:15-cv-00370-JAW. On December 8,
2015, the Court dismissed that action after a review pursuant to 28 U.S.C. § 1915 and 28 U.S.C. § 1915A.
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address, which notice the Court docketed on January 2, 2018. (ECF No. 18.) On May 1,
2018, upon a review pursuant to 28 U.S.C. §§ 1915 and 1915A, the Court dismissed four
individuals named as defendants in the complaint, leaving as defendants Penny Bailey,
Glean Brown, and Scott McCaffery. (Order Affirming Recommended Decision and
Addressing Other Motions, ECF No. 19.) When the Court sent Plaintiff copies of its May
2018 decision and related orders, the U.S. Postal Service returned the mail with the notation
“return to sender, not deliverable as addressed, unable to forward.” (ECF Nos. 24, 25.)
On July 9, 2018, Defendants filed the pending Motion for Partial Summary
Judgment. (ECF No. 27.) In the motion, Defendants report that after his release from the
Maine Correctional Center, Plaintiff violated the terms of his probation, was arrested on or
about June 25, 2018, and at the time of the filing of the motion, was confined at the
Cumberland County Jail. (Id. at 6.) Defendants sent a copy of the motion to Plaintiff,
addressed to the Cumberland County Jail. 2 (Id. at 12.)
Summary Judgment Facts
This action arises from the March 31, 2015, assault against Plaintiff while Plaintiff
was incarcerated at the Maine Correctional Center, in Windham Maine. (Defendants’
Statement of Material Facts, ¶¶ 1, 2, 3.) In both the prior action and in this action, Plaintiff
alleged that Defendants were deliberately indifferent to his safety, and failed to protect him

According to the confined inmate list maintained by the Cumberland County Sheriff’s Office, see
http://www.cumberlandso.org/235/Confined-Inmate-List (last visited September 4, 2018). Plaintiff
remains confined at the Cumberland County Jail and his release date is March 7, 2019.
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from the assault. (Id. ¶¶ 6, 7, 13.) In this action, Plaintiff also asserted a claim for negligent
supervision. (Id. ¶ 15.)
At all times relevant to this action, Defendants Penny Bailey, Glean Brown, and
Scott McCaffery were employees of the Maine Department of Corrections. (Id. ¶ 18.) The
Maine Department of Corrections is a cabinet-level department and State agency
established by the Maine Legislature. (Id. ¶ 19, citing 34-A M.R.S.A. §§ 1201-1202.)
Plaintiff asserts his claims against Defendants Penny Bailey, Glean Brown, and
Scott McCaffery in both their individual and official capacities as employees of the Maine
Department of Corrections. (Id. ¶ 20, citing Plaintiff’s Complaint § III, ¶¶ 4, 6 – 7.)
Discussion
Through the motion, Defendants contend (1) that Plaintiff’s request for declaratory
relief should be dismissed because Plaintiff no longer is confined at the Maine Correctional
Center (Motion at 4 – 7); and (2) that Plaintiff’s state law negligence claim is barred by the
applicable statute of limitations. (Motion at 7 – 11.) Defendants have not challenged in the
motion Plaintiff’s Eighth Amendment claim.
A. Declaratory Relief
In his complaint, Plaintiff in part requests the “issuance of a Declaratory Judgment
stating that the acts, failure and omissions of the Defendants have violated Plaintiff’s
Rights under the United States Constitution, and state Defendants duties and obligations
with respect to Plaintiff’s Rights.” (Complaint at 13, § VIII.1.)
Citing Ford v. Bender, 768 F.3d 15 (1st Cir. 2014), Defendants argue Plaintiff’s
claim for declaratory relief is moot because he no longer is confined in the facility at which
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they work. In Ford, the First Circuit reviewed a challenge to a judicial determination that
prison officials violated the plaintiff’s constitutional rights. After concluding that the
officer defendants were entitled to qualified immunity on the plaintiff’s claim for damages,
in addition to vacating the district court’s award of damages, the First Circuit also vacated
the district court’s award of declaratory and injunctive relief. Id. at 27 – 28. The First
Circuit held that because the plaintiff was no longer in custody, his “claims for equitable
relief no longer present a live case or controversy.” Id. at 28. The First Circuit also
observed that “[w]ith limited exceptions … issuance of a declaratory judgment deeming
past conduct illegal is [] not permissible as it would be merely advisory.” Id. at 29 (quoting
Am. Civil Liberties Union of Mass. v. U.S. Conference of Catholic Bishops, 705 F. 3d 44,
53 (1st Cir. 2013)).
Here, Plaintiff has offered no evidence or authority that would support an exception
to the general rule, or any other basis that would support the continuation of his claim for
declaratory judgment.3

Defendants, therefore, are entitled to summary judgment on

Plaintiff’s claim for declaratory relief.

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Some courts have concluded that where a claim for monetary damages exists, a declaratory judgment
action can proceed as a predicate to the claim for damages. See, e.g., Crue v. Aiken, 370 F.3d 668, 677 (7th
Cir. 2004) (“When a claim for injunctive relief is barred but a claim for damages remains, a declaratory
judgment as a predicate to a damages award can survive”). In this case, however, Plaintiff has offered no
basis for the request for declaratory relief to continue. Under the circumstances, the reasoning of the Fourth
Circuit is instructive:
Mootness questions often arise in cases involving inmate challenges to prison policies
or conditions, and courts, including our own, have held that the transfer of an inmate
from a unit or location where he is subject to the challenged policy, practice, or
condition, to a different unit or location where he is no longer subject to the challenged
policy, practice, or condition moots his claims for injunctive and declaratory relief, even
if a claim for money damages survives.
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B. Statute of Limitations
The Maine Tort Claims Act, which governs Plaintiff’s negligent supervision claim,
provides a two-year statute of limitations on state law claims asserted against a
governmental entity or its employees. 14 M.R.S. § 8110. Because a tort action accrues
“when the plaintiff sustains harm to a protected interest,” Chiapetta v. Clark Assocs., 521
A.2d 697, 699 (Me. 1987), Plaintiff’s negligence claim accrued, at the latest, on March 31,
2015, the date on which he was assaulted.
After the Court dismissed without prejudice Plaintiff’s complaint in the prior action
for failure to prosecute, Plaintiff first notified the Court of his intention to reinstitute his
claims in a motion filed on June 29, 2017. (No. 2:15-cv-282-JAW, ECF No. 51.) Plaintiff
eventually filed the complaint in this action on September 14, 2017. (ECF No. 1.) Whether
the Court considers the June or the September date as the relevant date for statute of
limitations purposes, Plaintiff filed this action more than two years after his negligence
claim accrued.

Unless the limitation period was tolled as the result of Plaintiff’s

imprisonment or Plaintiff’s filing of the prior action, Plaintiff’s negligent supervision claim
would be barred by the two-year statute of limitations.
Maine law provides for the tolling of a limitation period in certain situations when
the claimant is imprisoned. 14 M.R.S. § 853. Section 853, however, does not apply to the
Maine Tort Claims Act’s two-year statute of limitations. According to its express terms,

Incumaa v. Ozmint, 507 F.3d 281, 286 – 87 (4th Cir. 2007); see also Doe v. Madison Sch. Dist. No. 321,
177 F.3d 789, 798 (9th Cir. 1999) (student’s graduation moots claims for declaratory relief and injunctive
relief, but it does not moot claims for money damages.)
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section 853 applies only to actions that could be commenced under 14 M.R.S. §§ 752 –
754, 851, and 852, and to actions under 24 M.R.S. § 2902. Section 853 does not reference
or incorporate a claim under the Maine Tort Claims Act. When the Maine legislature
intended to incorporate a tolling provision into the Maine Tort Claims Act, it did so
expressly. See 14 M.R.S. § 8110 (providing for tolling of the limitation period for MTCA
claims based on minority, but not based on imprisonment). The legislature included no
such provision in the Maine Tort Claims Act for imprisoned individuals.
In addition, there appears to be no authority that would support the tolling of the
limitation period during the pendency of the prior action. To the contrary, relevant
authority suggests the limitation period is not tolled. Lopez-Gonzalez v. Municipality of
Comerio, 404 F.3d 548, 554 (1st Cir. 2005) (“involuntary dismissal made without prejudice
but as a sanction does not toll the statute of limitations under common law and equitable
principles”); cf. Garcia Morales v. Instituto Comercial de Puerto Rico Junior Coll., 215
F.3d 1311 (1st Cir. 2000) (dismissal without prejudice for failure to prosecute was
“effectively converted to a dismissal with prejudice … by the running of the statute of
limitations”). 4

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Under federal law, if a court dismisses a case because the court declined to exercise supplemental
jurisdiction over the case, the limitation period is tolled, pursuant to 28 U.S.C. § 1367(d), for a period of
time. The statute provides: “The period of limitations for any claim asserted under subsection (a), and for
any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of
the claim under subsection (a), shall be tolled while the claim is pending and for a period of 30 days after
it is dismissed unless State law provides for a longer tolling period.” 28 U.S.C.A. § 1367(d). The provision
is generally understood to apply only where the district court has declined to exercise supplemental
jurisdiction. 13D Charles Alan Wright et al., Federal Practice & Procedure, Juris. § 3567.4 (3d ed.) (“It
seems that Congress intended the subsection to apply only to dismissals under § 1367(c).”). The Court
dismissed the prior action based on Plaintiff’s failure to prosecute; the Court did not dismiss the prior action
pursuant to 28 U.S.C. § 1367(d).
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Because Plaintiff filed this action more than two years after the alleged cause of
action accrued, and because the two-year limitation period that governs claims under the
Maine Tort Claims Act was not tolled due to Plaintiff’s imprisonment or his filing of the
prior action, Defendants are entitled to summary judgment on Plaintiff’s negligent
supervision claim.
Conclusion
Based on the foregoing analysis, I recommend the Court grant Defendants’ Motion
for Partial Summary Judgment. (ECF No. 27.)
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
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 6th day of September, 2018.

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