DASTINOT v. AUBURN POLICE DEPARTMENT et al
Filing
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REPORT AND RECOMMENDED DECISION re 14 MOTION to Dismiss filed by MARK LEMOS, CANNINE OFFICER ROCKY, SCOTT WATKINS, PHILLIP L CROWELL, JR, CITY OF AUBURN, AUBURN POLICE DEPARTMENT, TYLER HAM. Objections to R&R due by 10/5/2018. By MAGISTRATE JUDGE JOHN C. NIVISON. (MFS)
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
ROMELLY DASTINOT,
Plaintiff
v.
AUBURN POLICE DEPARTMENT,
et al.,
Defendants
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2:18-cv-00166-JAW
RECOMMENDED DECISION ON DEFENDANTS’
PARTIAL MOTION TO DISMISS
In this action, Plaintiff alleges Defendants deprived him of certain constitutional
rights in connection with his arrest. (Complaint ¶ IV, ECF No. 1.)
The matter is before the Court on Defendants’ Partial Motion to Dismiss. (Motion
to Dismiss, ECF No. 14.) Through their motion, Defendants contend Plaintiff has failed
to allege sufficient facts to support all of his claims.
Following a review of the relevant pleadings and after consideration of Defendants’
arguments,1 I recommend the Court grant in part the motion.
Background
The following facts are derived from Plaintiff’s complaint and are accepted as true
for purposes of evaluating the pending motion to dismiss. McKee v. Cosby, 874 F.3d 54,
59 (1st Cir. 2017).
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Plaintiff did not file an opposition to Defendants’ motion.
According to Plaintiff, on February 15, 2014, while Plaintiff was waiting for a taxi
outside a business establishment, Defendant Watkins, an officer with the Auburn Police
Department, grabbed Plaintiff, put him against a car, and held him there. When Plaintiff
asked why he was being arrested, another officer, Defendant Lemos, used a taser on
Plaintiff, which caused Plaintiff to fall to the ground. Plaintiff alleges that while he was
on the ground, the officers pressed Plaintiff’s face into the pavement, and held him on the
ground. A third officer, Defendant Ham, then instructed his police canine to attack
Plaintiff, and the canine bit Plaintiff in the leg. At the police station, Plaintiff overhead an
unidentified officer instruct the booking officers to assign a high bail. (Complaint at 6 –
8.) Ultimately, according to Plaintiff, all charges against Plaintiff were dismissed. (Id. at
9.)
Plaintiff asserts Defendants violated his rights under the First Amendment, the
Fourth Amendment, and the Eighth Amendment.2 He also alleges state law claims of
assault and battery, false arrest, abuse of process, infliction of emotional distress, and
negligence. (Id. at 4 – 5.) Plaintiff further asserts that Defendant Crowell, the Auburn
Chief of Police, is liable for the conduct of his subordinate officers. (Id. at 6.) In the
caption of his complaint, Plaintiff included the City of Auburn as a defendant.3 (Id. at 1.)
2
Plaintiff cited the Federal Tort Claims Act (FTCA) as the basis for a potential federal claim. (Complaint
at 4.) Defendants correctly argue (Motion to Dismiss at 5 – 6) that the defendants are not subject to liability
under the FTCA because they are not federal officers.
3
Plaintiff also asserted his claims against the police canine that bit him. Defendants correctly argue (Motion
to Dismiss at 4 – 5) that a canine is not a proper defendant.
2
Discussion
A.
Motion to Dismiss Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may seek dismissal of
“a claim for relief in any pleading” if that party believes that the pleading fails “to state a
claim upon which relief can be granted.” In its assessment of the motion, a court must
“assume the truth of all well-plead facts and give the plaintiff[] the benefit of all reasonable
inferences therefrom.” Blanco v. Bath Iron Works Corp., 802 F. Supp. 2d 215, 221 (D.
Me. 2011) (quoting Genzyme Corp. v. Fed. Ins. Co., 622 F.3d 62, 68 (1st Cir. 2010)). To
overcome the motion, a plaintiff must establish that the allegations raise a plausible basis
for a fact finder to conclude that the defendant is legally responsible for the claim at issue.
Id.
Although a pro se plaintiff’s complaint is subject to “less stringent standards than
formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972), this is
“not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a
claim, Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980). To allege a civil action in
federal court, it is not enough for a plaintiff merely to allege that a defendant acted
unlawfully; a plaintiff must affirmatively allege facts that identify the manner by which the
defendant subjected the plaintiff to a harm for which the law affords a remedy. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
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B.
Failure to State a Claim
Defendants contend Plaintiff has failed to state an actionable claim except for his
claims against Defendants Ham, Lemos, and Watkins for unlawful arrest and excessive
force.
1. First Amendment
The First Amendment, the substantive protections of which are incorporated into
the Fourteenth Amendment and thereby made applicable to the states, Janus v. Am. Fed’n
of State, Cty., & Mun. Emp., 138 S. Ct. 2448, 2463 (2018), prohibits a governmental actor
from retaliating against a citizen based on the citizen’s exercise of rights protected under
the First Amendment. Gericke v. Begin, 753 F.3d 1, 6 (1st Cir. 2014). “In a section 1983
claim of retaliatory … activity, a plaintiff must prove that [his] conduct was
constitutionally protected and was a substantial or motivating factor for the retaliatory
decision, and that there was no probable cause for the criminal charge.” Id. (internal
quotation marks and citation omitted).
Defendants argue Plaintiff’s First Amendment claim should be dismissed because
his allegations are conclusory and not fact-based. (Motion to Dismiss at 10.) Although
Plaintiff has not alleged detailed facts regarding his communication with Defendants, he
has asserted that when he asked for the reason for his arrest, one of the defendants used a
taser, which caused him to fall to the ground. Accepted as true, and giving Plaintiff the
benefit of all reasonable inferences, Plaintiff’s allegation is sufficient to state a plausible
First Amendment claim. Hopkins v. Claroni, No. 1:13-cv-229-DBH, 2015 WL 2371654,
at *3 (D. Me. May 18, 2015).
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2. Eighth Amendment
The Eighth Amendment, which similarly applies to the states through the Fourteenth
Amendment, Miller v. Alabama, 567 U.S. 460, 503 (2012), prohibits “[e]xcessive bail” and
“cruel and unusual punishments.” U.S. Const. Amend. VIII.
Defendants argue Plaintiff’s Eighth Amendment claim should be dismissed because
the Cruel and Unusual Punishments Clause applies only to convicted prisoners. (Motion
to Dismiss at 10, citing Whitley v. Albers, 475 U.S. 312, 318 – 19 (1986).) In Whitley, the
Supreme Court wrote: “The Cruel and Unusual Punishments Clause ‘was designed to
protect those convicted of crimes,’ and consequently the Clause applies ‘only after the State
has complied with the constitutional guarantees traditionally associated with criminal
prosecutions.’” Whitley, 475 U.S. at 318 (quoting Ingraham v. Wright, 430 U.S. 651, 664
(1977)). Given that Plaintiff does not allege he was convicted of any crime, Plaintiff’s
claim does not implicate the Eighth Amendment.
Defendants also persuasively contend that Plaintiff’s allegations concerning bail are
insufficient. Plaintiff has failed to assert any facts regarding the bail process, the amount
of bail established, or any other facts that would support an excessive bail claim.
3. City of Auburn and Chief Crowell
Defendants argue Plaintiff has not alleged sufficient facts to support a claim against
the City of Auburn or Defendant Crowell, the city’s Chief of Police. (Motion to Dismiss at
6 – 9.)
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a. Municipal liability
A municipality may be liable to those subjected to the deprivation of a constitutional
right by a municipal officer if the deprivation is shown to be the product of a municipal
policy or custom. Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 694
(1978) (“We [hold] that a local government may not be sued under § 1983 for an injury
inflicted solely by its employees or agents. Instead, it is when execution of a 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 that the government as an entity
is responsible under § 1983.”)
Plaintiff has asserted no facts that would support a plausible inference that the
alleged retaliatory arrest and excessive force employed by Defendants Ham, Lemos, and
Watkins were the product of or in accordance with an official policy or custom of the City
of Auburn or Defendant Crowell.
b. Supervisory liability
[A] supervisor is not liable under § 1983 for the actions of a subordinate on
a respondeat superior theory. See Maldonado–Denis v. Castillo–Rodriguez,
23 F.3d 576, 581 (1st Cir. 1994). Rather, the supervisor is liable for the
subordinate’s actions if the subordinate’s behavior led to a constitutional
violation and if “the supervisor’s action or inaction was affirmatively linked
to that behavior in the sense that it could be characterized as supervisory
encouragement, condonation or acquiescence or gross negligence amounting
to deliberate indifference.” Estate of Bennett v. Wainwright, 548 F.3d 155,
176–77 (1st Cir. 2008) (brackets omitted) (quoting Pineda v. Toomey, 533
F.3d 50, 54 (1st Cir. 2008)).
Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016).
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Plaintiff has not alleged facts to suggest Defendant Crowell directed the conduct
about which Plaintiff complains, or that he encouraged, condoned, acquiesced in, or
demonstrated deliberate indifference to the conduct.
4. State Law Claims
Defendants argue the state law claims are barred by the Maine Tort Claims Act
(MTCA) because Plaintiff failed to file suit within two years of the accrual of his claim.
(Motion to Dismiss at 6.)
“Granting a motion to dismiss based on a limitations defense is entirely appropriate
when the pleader’s allegations leave no doubt that an assert claim is time-barred.”
LaChapelle v. Berkshire Life Ins. Co., 142 F.3d 507, 509 (1st Cir. 1998). Under the MTCA,
“[e]very claim against a governmental entity or its employees permitted under this chapter
is forever barred from the courts of this State, unless an action therein is begun within 2
years after the cause of action accrues.” 14 M.R.S. § 8110. Here, Plaintiff alleges the
incident underlying his claims occurred on February 15, 2014. Plaintiff commenced this
action with the filing of his complaint on April 23, 2018, more than four years after the
incident. Plaintiff’s state law claims, therefore, are barred because he did not file the claims
within the applicable two-year statute of limitations.4
According to Plaintiff’s complaint, he previously filed suit in Maine Superior Court, in May of 2017,
which complaint was dismissed. (Complaint at 2.) Plaintiff’s state law claims were barred by the MTCA
even as of May, 2017, which was more than three years after the accrual of his claims.
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Conclusion
Based on the foregoing analysis, I recommend the Court grant in part Defendants’
Partial Motion to Dismiss Plaintiff’s complaint. (ECF No. 14.) Specifically, I recommend
the Court dismiss all of Plaintiff’s claims except Plaintiff’s claims under 42 U.S.C. § 1983
against Defendants Ham, Lemos, and Watkins for unlawful arrest, excessive force, and
retaliation for the exercise of Plaintiff’s First Amendment rights.
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 21st day of September, 2018.
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