JACKSON v. TOWN OF WALDOBORO

s gun three times, but later learned that he actually fired five times. A forensic examination of Officer Curtis' gun later showed that the muzzle had Mr. Jackson's blood on it, indicating that the gun had been pressed directly against Mr. Jackson when it was fired. Although Officer Curtis intended for all of the fired shots to go into Mr. Jackson's side, the final shot apparently traveled up Mr. Jackson's back, striking the back of Mr. Jackson's head, which was immediately above Officer Curtis' own head.

By the time Officer Curtis' reinforcements arrived on the scene, Mr. Jackson was deceased. Even so, the deputy sheriff who first arrived on the scene used Officer Curtis' handcuffs to handcuff Mr. Jackson before attending to Officer Curtis. After additional officers came, Officer Curtis was taken by ambulance to the hospital where he was treated for abrasions to his face, neck, arms and hands. Officer Curtis also experienced considerable pain and burning in his eyes; the Emergency Room doctor advised him that this pain and burning was due to the lack of oxygen he experienced while being choked by Mr. Jackson.

At all times relevant to the claims made by Plaintiffs, Defendant Zachary Curtis was employed as a reserve police officer by the Town. By contrast, Defendant William Post was not employed with the Town at the time of the incident giving rise to this lawsuit; he has been employed with the Town as its Town Manager from March 10, 2008 through the present. Defendant William Labombarde was not employed with the Town at the time of the incident giving rise to this lawsuit; he began his employment with the Town as its Chief of Police on November 19, 2007.

On September 23, 2007, liability coverage for the Town and its employees was provided by the Town's membership in the Maine Municipal Association Property Casualty Pool, a self-insured municipal risk pool. Under the Pool agreement, coverage for claims arising under state law is only available if the entity or the employees do not enjoy immunity under state law. The Town does not have any policy of liability insurance that provides indemnity to the Town or its employees for civil liability arising out of the events of September 23, 2007.

IV. DISCUSSION

Following these tragic events, Natalie and Millard Jackson — acting as personal representatives of the Estate of Gregori S. Jackson — filed suit against the Town of Waldoboro, Officer Zachary Curtis (both individually and in his capacity as Town Police Officer), William Labombarde (in his official capacity as the Town's Police Chief), and William Post (in his official capacity as Town Manager). Specifically, the Complaint contains five counts undifferentiated among the Defendants: (1) 42 U.S.C. § 1983 action alleging violation of the Fourth, Fifth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections Five and Nine of the Maine Constitution, and 15 M.R.S.A. § 704; (2) Maine Civil Rights Act, 5 M.R.S.A. § 4681, et seq.; (3) Maine's Wrongful Death Statute, 18-A M.R.S.A. § 2-804(a), as incorporated within the Maine Tort Claims Act, 14 M.R.S.A. § 8104-C; (4) Wrongful Death Statute survival claim; and (5) a negligence claim. Plaintiffs seek a declaration that their eighteen-year-old son was deprived of his rights and an award of unspecified compensatory and punitive damages. Defendants collectively have moved for summary judgment on all counts. The Court addresses each count in turn below.

A. Count I: 42 U.S.C. § 1983

In Count I, Plaintiffs assert under Section 1983 of the federal Civil Rights Act violations of the Maine State constitution and the state statute, 15 M.R.S.A. 704, prohibiting the wanton or oppressive use of force when making warrantless arrests. By its own terms, however, Section 1983 is a federal remedy statute enabling individuals to pursue civil actions to vindicate federal constitutional and statutory rights when they have suffered a deprivation at the hands of a state actor. See 42 U.S.C. § 1983; see also Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) ("Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred.") (citations and internal punctuation omitted); Gagliardi v. Sullivan, 513 F.3d 301, 306 (1st Cir. 2008) (explaining that an essential element of a claim under 42 U.S.C. § 1983 is that the alleged conduct "must have deprived the plaintiff of rights secured by the Constitution or by federal law").
Thus, to the extent Plaintiffs assert any state constitutional or statutory claims in Count I, Defendants are entitled to summary judgment and the Court will limit its consideration of Count I to alleged federal violations.

The central allegation of Count I is that Defendant Curtis used excessive force against Jackson. While Plaintiffs claim this alleged use of excessive force implicates rights secured by the Fourth, Fifth, Eighth, and Fourteenth Amendments, it is well established that " all claims that law enforcement officers have used excessive force — deadly or not — in the course of an arrest, investigatory stop, or other `seizure' of a free citizen should be analyzed under the Fourth Amendment and its `reasonableness' standard[.]" Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989); see also id. ("[T]he Fourth Amendment provides an explicit textual source of constitutional protection against this sort of physically intrusive governmental conduct, that Amendment . . . must be the guide for analyzing these claims."). Thus, to the extent Plaintiffs assert violations of the Fifth, Eighth and Fourteenth Amendments in Count I, Defendants are entitled to summary judgment. See e.g., Estate of Bennett v. Wainwright, 548 F.3d 155, 163 (1st Cir. 2008). 1. Individual Liability for Officer Curtis

Plaintiffs nowhere allege, for example, that Curtis lacked the legal right to arrest Jackson; in fact, the Amended Complaint states as facts that Curtis received information that Jackson was out on bail, observed Jackson to be in violation of bail conditions, and therefore determined that he was subject to arrest. ( See Am. Compl. ¶¶ 11-12.)

In any event, it is also long established that: the lack of alleged conduct by any federal actors necessitates dismissal of a Fifth Amendment claim, see, e.g., Martinez-Rivera v. Sanchez Ramos, 498 F.3d 3, 8-9 (1st Cir. 2007); the Eighth Amendment applies to protect convicted prisoners from cruel and unusual punishment due process, see, e.g., Elliott v. Cheshire Cnty., 940 F.2d 7, 10 n. 2 (1st Cir. 1991); that the due process clause of the Fourteenth Amendment applies to pre-trial detainees who are in custody but are not yet convicted, see, e.g., id. (citing City of Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244, 103 S.Ct. 2979, 77 L.Ed.2d 605 (1983)); and that a substantive due process claim under the Fourteenth Amendment can only advance where no other constitutional claim is available, Estate of Bennett, 548 F.3d at 163 (citing Coyne v. Cronin, 386 F.3d 280, 287 (1st Cir. 2004) (stating that substantive due process "may itself be invoked to challenge executive conduct where no other constitutional provision more directly applies")); see also Graham, 490 U.S. at 395, 109 S.Ct. 1865.

In moving for summary judgment on Plaintiffs' Fourth Amendment claim against Officer Curtis, Defendants contend that no constitutional violation took place because Officer Curtis' actions were reasonable under the circumstances, and in the alternative, that Curtis is entitled to qualified immunity despite any violation.

"An arrest is a form of fourth amendment seizure and the use of force to effect it must be reasonable under all the circumstances." Statchen v. Palmer, 623 F.3d 15, 17-18 (1st Cir. 2010) (citing Graham, 490 U.S. at 396, 109 S.Ct. 1865); see also Estate of Bennett, 548 F.3d at 173 (citations omitted) ("A violation of the Fourth Amendment premised on excessive force is established if an officer exerts force against a plaintiff that is unreasonable under the circumstances.") (citations omitted). "Reasonableness in this context is an objective inquiry based, not on the officer's underlying motivation, but on facts and circumstances that `must be judged from the perspective of a reasonable officer on the scene.'" Id. (quoting Graham, 490 U.S. at 396, 109 S.Ct. 1865). In assessing reasonableness, the Court must remain mindful that "police officers are often forced to make split-second judgments — in circumstances that are tense, uncertain, and rapidly evolving — about the amount of force that is necessary in a particular situation." Graham, 490 U.S. at 397, 109 S.Ct. 1865.

In Graham, the United States Supreme Court gave specific guidance on the "proper application" of this test of objective reasonableness: the Court here is to pay "careful attention to the facts and circumstances of [the] case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight." Id. at 396, 109 S.Ct. 1865; see also Morelli v. Webster, 552 F.3d 12, 23 (1st Cir. 2009) (describing the Graham factors as a "non-exclusive list of criteria for determining the objective reasonableness of a police officer's use of force"). Accepting the Defendants' version of events as true — as the Court must, in light of Plaintiffs' failure to place a single one of Defendants' facts in dispute — all three Graham factors weigh strongly in Defendants' favor.

First, any initial doubt as to the severity of Jackson's alleged crime — a violation of bail conditions based on the consumption of alcohol by a minor, see 15 M.R.S.A. § 1092(1) (violation of conditions of release generally is a Class E crime) — was erased when Jackson assaulted Officer Curtis in the dark of the woods by throwing a log at his face. Next, the Plaintiffs' own complaint makes plain that Jackson both resisted arrest by Defendant Curtis and attempted to evade arrest by flight. ( See Am. Compl. ¶ 12 ("Officer Curtis attempted to place . . . Jackson under arrest. After a brief struggle . . . Jackson ran down the road on which the car was stopped and into adjoining woods.").) More importantly, the evidence presented also reveals that at the point the fatal injury occurred, Jackson continued to actively resist arrest.

The Court turns, finally, to whether Curtis posed an immediate threat to Officer Curtis. At the time Curtis made the decision to use deadly force against Jackson, Curtis had already used his hands, pepper spray, and an impact weapon in his attempt to overcome Jackson's resistance to being taken into custody. None of these methods proved effective. Throughout, Jackson was both heavily intoxicated and extremely agitated. Once Jackson jumped Curtis in the woods, Curtis — who was on his back with Jackson on top of him — was not able to overcome the position of physical superiority Jackson had gained. Jackson had already struck Officer Curtis in the face with a log, which both stunned him and impacted his ability to see due to the loss of his glasses. Jackson fought with Curtis to try to get control of the officer's handgun and, in fact, did gain control of the gun briefly before Curtis was able to wrestled it away from him; in the course of this struggle, four unfired bullets were ejected from the gun and onto the ground. Based on these facts, there is more than sufficient evidence that Jackson posed a considerable and immediate risk to the safety, and indeed the life, of Officer Curtis. See, e.g., Graham, 490 U.S. at 396, 109 S.Ct. 1865 (cautioning that reasonableness "must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight"); Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007) (finding an officer acted reasonably when, in an emergency situation and faced with an imminent threat, "she made a split-second judgment" and "fired a fusillade" of bullets at her attacker); Gonzalez v. Keeler, Civ. No. 07-11201-RGS, 2009 WL 3152887 (D.Mass. Sept. 29, 2009) (finding no constitutional violation in fatal shooting of individual actively attempting to assault a police officer).

Thus, given these extreme circumstances and the clear, imminent threat, the Court concludes a rational jury could, "without serious question," find that the force used by Curtis was not "so disproportionate as to offend the Fourth Amendment." Morelli, 552 F.3d at 23; see also Estate of Bennett, 548 F.3d at 175 ("While the result is tragic, we cannot conclude that the officers' actions were so deficient that no reasonable officer in their position would have made the same choices under these circumstances."). The conclusion that the force exerted by Officer Curtis was reasonable under the circumstances means that Plaintiffs' Section 1983 claim fails due to lack of a constitutional violation. Likewise, a similar analysis of the reasonableness of Curtis' actions by the Court readily yields the conclusion that Curtis also is entitled to qualified immunity for his use of deadly force. See Pearson v. Callahan, 555 U.S. 223, ___, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (Qualified immunity "protects government officials from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.") (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982)); Roy v. Inhabitants of Lewiston, 42 F.3d 691, 694-95 (1st Cir. 1994) (noting the reasonableness determination is properly made by the court in the context of qualified immunity). In short, Defendant Curtis is entitled to summary judgment on Count I based on qualified immunity and the lack of evidence to support a finding of excessive force.

In Pearson, the Supreme Court established that the qualified immunity is a two part test. "A court must decide: (1) whether the facts alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if so, whether the right was `clearly established' at the time of the defendant's alleged violation." Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009) (citing Pearson, 129 S.Ct. at 815-16); Guillemard-Ginorio v. Contreras-Gómez, 585 F.3d 508, 526 n. 20 (1st Cir. 2009).
Even if the Court were to assume Plaintiff could make out a violation of a constitutional right, the Court would alternatively conclude that Officer Curtis was entitled to qualified immunity under the second part of the Pearson test. See Statchen v. Palmer, No. 08-cv-128-JD, 2009 WL 2997982 (D.N.H. Sept. 15, 2009) (indicating that, post-Pearson, the qualified immunity analysis has only two steps, although the second step has two parts) (citing Maldonado, 568 F.3d at 269). Under this second stage of the qualified immunity inquiry, despite a clearly established and well-known right to be free from excessive deadly force, a reasonable officer standing in Curtis' shoes — struggling in the woods against an out-of-control and intoxicated young man resisting arrest — would not have understood that his actions amounted to excessive force proscribed by the Fourth Amendment. See, e.g., Estate of Bennett, 548 F.3d at 176 (holding that officers were entitled to qualified immunity on excessive force claim because they reasonably — even if mistakenly — could have believed that the decedent posed a continuing, imminent threat); Roy, 42 F.3d at 695 (noting that the standard is that of "the `reasonable officer' and what `could reasonably have been thought lawful' by such an officer, terms suggesting a measure of deference" (internal citation omitted)); Berube, 506 F.3d at 85 (holding that the officers' decision to fire even after the attacker went to the ground was a split-second judgment in an emergency situation). As such, Officer Curtis' use of deadly force is entitled to qualified immunity.

2. The Other Defendants

In Count I, Plaintiffs have also asserted corresponding vicarious and municipal liability claims against the Town. ( See Am. Comp. ¶ 27) (alleging that the Town, Town Manager, and Police Chief "maintain[ed] a custom or policy that failed to ensure the adequate training, supervision and control of the Waldoboro police officers . . . and thereby failed to enforce the laws concerning the use of excessive and deadly force"); id. at ¶¶ 25-26 (alleging that the Police Chief failed to supervise the training of Officer Curtis and to enforce the applicable laws governing the use of force); id. at ¶ 28 (alleging the Town failed to require the Police Chief to have adequate policies and procedures on the use of firearms). In moving for summary judgment on Plaintiffs' Fourth Amendment claim against the Town, Defendants assert that there is no basis for either a vicarious liability claim or a municipal liability claim for any alleged failure to adequately train, supervise or control a Town police officer.

As stated above, while Defendant Post is the current Town Manager and Defendant Labombarde is the current Police Chief for the Town of Waldoboro, neither served in this capacity at the time of the events giving rise to this lawsuit. Accordingly, Plaintiffs properly have sued both only in their official capacities. ( See Am. Compl. ¶¶ 5-6.). Any claims against these individual defendants, however, are duplicative of the claims against the Town of Waldoboro, which has also been named as a party. See, e.g., Surprenant v. Rivas, 424 F.3d 5, 19 (1st Cir. 2005) ("A suit against a public official in his official capacity is a suit against the governmental entity itself."); Burrell v. Hampshire Cnty., 307 F.3d 1, 7 (1st Cir. 2002) ("A damages suit against an official in an official capacity is tantamount to a suit against the entity of which the official is an agent[.]"). The Court's reference in the following discussion to "the Town" therefore encompasses Plaintiffs' claims against both the Town of Waldoboro and Defendants Post and Labombarde.

First, to the extent the Court just determined that Defendant Curtis did not violate Jackson's Fourth Amendment rights, Plaintiffs' contention against the Town for vicarious liability also fails. See, e.g., Hayden v. Grayson, 134 F.3d 449, 456 (1st Cir. 1998) ("Normally . . . a municipality cannot be held [vicariously] liable unless its agent actually violated the victim's constitutional rights."). As to any municipal liability claim against the Town based on a failure to train Officer Curtis, the "liability criteria" for such claims "are exceptionally stringent." Id. (citing City of Canton v. Harris, 489 U.S. 378, 388-89, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989)):

Only if the failure to train "amounts to deliberate indifference to the rights of persons with whom the police come into contact," and is "closely related" to, or "the moving force" behind, the constitutional injury, can the claim against the municipality prevail.

Id.; see also Estate of Bennett, 548 F.3d at 177.

In this case, the record is devoid of any evidence of an unconstitutional custom, policy or practice or deliberate indifference to the supervision, control, disciplining or training of personnel. Nor is there any evidence in the record to infer that any custom or practice was the moving force behind the deprivations alleged. Rather, the undisputed facts before the Court establish that the Town Police Department had adopted a specific policy regarding the lawful use of force. The facts also show that Officer Curtis received use of force training, including the use of deadly force, at the Maine Criminal Justice Academy, the Kennebunkport Police Department, and at the Town Police Department before he was ever allowed to patrol alone in the Town. This training included classroom instruction, written testing, and demonstrated hands-on proficiency at various tasks associated with his job, including demonstrating his knowledge of the lawful use of force. Curtis had never previously been the subject of a use of force complaint. In short, the Court finds that no theory of municipal liability exists that would support liability against the Town. See, e.g., Estate of Bennett, 548 F.3d at 177-78.

In sum, the Court concludes that all Defendants are entitled to summary judgment on all of Count I.

B. Count II: Maine Civil Rights Act

In Count II, Plaintiffs allege that Defendants are liable under the Maine Civil Rights Act ("MCRA"), 5 M.R.S.A. § 4681 et seq., because they engaged in "intentional interference . . . with Gregori Jackson's enjoyment of [Count I's] federal and state constitutional and statutory rights[.]" (Am. Compl. ¶ 32.) The MCRA, which provides a general remedy for violations of federal and state constitutional and statutory rights, is "patterned" after Section 1983. LaPlante v. United Parcel Serv., Inc., 810 F.Supp. 19, 22 (D.Me. 1993). As such, disposition of a claim under Section 1983 controls a claim brought under MCRA. Berube, 506 F.3d at 85; see also Forbis v. City of Portland, 270 F.Supp.2d 57, 61 (D.Me. 2003). This includes a defense of qualified immunity. See, e.g., Jenness v. Nickerson, 637 A.2d 1152, 1159 (Me. 1994).

Thus, Defendants are entitled to summary judgment as to the allegations of Count II for the same reasons they are entitled to summary judgment on Plaintiffs' Section 1983 claim in Count I.

In Count I, Plaintiffs also included a claim that Defendants acted in violation of 15 M.R.S.A. 704, ( see Am. Compl. ¶ 22), which allows a person injured by a warrantless arrest in which the arresting officer acted "wantonly or oppressively" to recover damages for his injuries. To the extent this part of Count I survives, the Court concludes that just as Curtis' use of force was reasonable and not excessive, he is entitled to summary judgment for any claim based on it being wanton or oppressive. Cf. Berube, 506 F.3d at 86; Creamer v. Sceviour, 652 A.2d 110, 115 (Me. 1995); Leach, 599 A.2d at 426.

C. Counts III-V: Maine Tort Claims Act, Wrongful Death Statute and Negligence

In moving for summary judgment on Plaintiffs' remaining state law claims, Defendants correctly assert that these claims are all subject to the provisions of the Maine Tort Claims Act ("MTCA"), 14 M.R.S.A. § 8101 et seq.

Section 8111(1) of the MTCA confers absolute immunity from civil liability to governmental employees who, inter alia, are performing "discretionary" functions and/or "intentional act[s] or omission[s] within the course and scope of employment," unless those intentional (in) actions are "found to have been in bad faith." Id. § 8111(1)(C) (E). "A law enforcement official's use of force is a discretionary act." Dimmitt v. Ockenfels, 220 F.R.D. 116, 125 (D.Me. 2004) (quoting Comfort v. Town of Pittsfield, 924 F.Supp. 1219, 1236 (D.Me. 1996)). As such, a police officer's use of force is subject to absolute immunity absent conduct "so egregious as to clearly exceed any discretion the officer[] could have possessed under the circumstances." Berube, 506 F.3d at 86 (quoting Dimmitt, 220 F.R.D. at 125). Because the Court has already found that Officer Curtis' conduct was reasonable under the circumstances, that conduct cannot be said to be so egregious as to deprive the officer of the immunity defense. See, e.g., id.; Leach v. Betters, 599 A.2d 424, 426 (Me. 1991) ("At best, the record supports the conclusion that the officers may have used more force than was necessary but it contains no suggestion that they used more force than they reasonably thought to be necessary. There is no hint of ill will, bad faith, or improper motive. The officers may have been mistaken, but their conduct cannot be characterized as wanton or oppressive.").

To the extent Plaintiffs allege violations of Maine's Wrongful Death Statute in both Counts III and IV, these statutes simply provide a means for a claim by a decedent's personal representative, either for the death itself or suffering prior to death. See 18-A M.R.S.A. § 2-804. As such, it does not confer any separate cause of action, but depends on an independent cause of action to exist under the law. See Shaw v. Jendzejec, 717 A.2d 367, 369 (Me. 1998) (noting that the "wrongful death cause of action" is "dependent on a cause of action that the deceased would have possessed had death not ensued"); Farrington v. Stoddard, 115 F.2d 96, 99-100 (1st Cir. 1940) (clarifying that no new rights are conferred pursuant to this statute other than to allow a class of cases to proceed that were formerly barred under current law).

Finally, the Court determines that none of the conduct alleged falls within the exceptions to immunity found in Section 8104-A of the MTCA, as limited by 8104-B. Moreover, although the Town's right to immunity may be waived by the purchase of a policy of liability insurance, see 14 M.R.S.A. § 8116, the Town has not done so.

As such, the Court concludes that the Defendants are entitled to summary judgment as to all remaining state law claims.

V. CONCLUSION

For the reasons explained herein, the Court GRANTS Defendants' Motion for Summary Judgment (Docket #21). The Court ORDERS judgment be entered in favor of Defendants.

SO ORDERED.