GRENDELL v. STATE OF MAINE

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

MICHAEL S. GRENDELL, )

)

Plaintiff, )

)

v. ) 1:19-cv-00419-JDL

)

STATE OF MAINE, et al., )

)

Defendant. )

ORDER ON DEFENDANTS’ MOTIONS TO DISMISS

The Plaintiff, Michael S. Grendell, has brought this action against twenty-five

defendants, including the State of Maine; the Maine State Police, eighteen of its

troopers and officers, and its Police Bomb Team; and Brian MacMaster of the Maine

Attorney General’s Office. The complaint also names as defendants an unidentified

“Government Agency A” and unidentified individuals, John and Jane Doe. The

identified defendants have filed two partial motions to dismiss the complaint (ECF

Nos. 9, 30).1 For reasons I will explain, the motions are granted in part and denied

in part.

I. FACTUAL BACKGROUND

Grendell’s complaint alleges the following facts. Beginning in mid-June 2018,

Grendell started experiencing mental health issues, and he began behaving

abnormally.

1 The second motion to dismiss concerns one individual defendant, Detective Tucker Bonnevie, and

its arguments mirror those brought in the first motion to dismiss. For ease of reference, I refer to both

On June 27, Grendell had several encounters with a friend in an effort to

recover mail Grendell believed the friend had stolen from him. During the

encounters, Grendell “inappropriate[ly] use[d] . . . firearms or a hatchet, including

[by] discharging [a] firearm.” ECF No. 1 ¶ 14. The following day, the friend notified

the police that Grendell had shot at him. The friend told the police that he thought

Grendell was having a mental health crisis and that he wanted to get help for

Grendell.

On June 28, at 1:43 p.m., Sergeant Alden Bustard, Trooper Jeremy Caron, and

Trooper Bryan Creamer went to Grendell’s home in Dixmont, Maine. Grendell had

no telephone. Using a public address system, the officers ordered Grendell to come

out of the residence with his “hands out.” ECF No. 1 ¶ 17. After several minutes,

Grendell walked out of the front door wearing only underwear and asked the officers

if they were the “real police.” The officers identified themselves and directed Grendell

to walk away from the residence. Grendell responded by walking back into his house

and closing the door.

Trooper Creamer moved to the rear of the residence “to establish perimeter

security around” it, and Trooper Bustard contacted Detective Gregory Roy, the

assistant commander of the Maine State Police’s Tactical Team. ECF No. 1 ¶¶ 21–

22. Detective Roy then activated the Tactical Team. At 2:25 p.m., an Assistant

District Attorney approved charges against Grendell for “Reckless Conduct with a

Firearm.” ECF No. 1 ¶ 23. Officers at some point also obtained arrest and search

warrants. From 2:42 p.m. until 4:07 p.m., various law enforcement officers, including

Maine State Police negotiators, arrived at the scene.

At approximately 6:02 p.m., Grendell exited his home with a handgun in one

hand and a dog on a leash in the other hand. Grendell also had a Civil War replica

rifle strapped on his shoulder. A member of the Crisis Negotiation Team ordered

Grendell to drop the gun, but Grendell did not comply and instead reentered his home

and activated his truck’s alarm. At approximately 3:00 a.m. the next morning, June

29, Grendell activated the alarm on his truck a second time. At 3:30 a.m. on June 29,

Grendell fired a gun inside the house and activated his truck’s alarm a third time.

At 5:15 a.m., officers used an armored truck (referred to as a “LENCO”) to

breach a window in Grendell’s house. Grendell responded by firing at the truck. A

four-hour firefight then ensued between Grendell and the officers, during which

Grendell shot at the LENCO, and bullets hit trees near several troopers.

About three hours into the firefight, Detective Roy stated that he was going to

ask the Maine State Police’s “Bomb Team” to create an explosive breaching charge to

“take down the wall of the residence so [officers] could at least visually see where

inside the residence Grendell was.” ECF No. 1 ¶ 56. The officers intended to use a

robot to insert the breaching charge through a window.

At 9:15 a.m., the Bomb Team drove the robot toward the house with the

breaching charge, but Grendell shot the robot, disabling it. Sergeant Christopher

Harriman reported to Major Christopher Grotton that the robot was “dead” but that

the charge could still be detonated at the side of the house. ECF No. 1 ¶ 68. Sergeant

Harriman, with instructions from Major Grotton, detonated the charge. The

detonation caused the house to collapse.

As a result of the explosion, Grendell was concussed, suffered from at least

temporary deafness, and at least temporarily lost the cognitive ability to hear and

understand generally. He emerged from the debris with a baseball bat and then

picked up a rifle. While trying to load the rifle, Grendell was shot by Troopers Caleb

McGary and Andrew Hardy. The complaint asserts that “[a]t no time was an

appropriate warning given to Grendell before [the bomb was detonated or before] he

was shot.”2 ECF No. 1 ¶¶ 71, 73.

II. LEGAL ANALYSIS

To survive a motion to dismiss, the complaint “must contain sufficient factual

matter to state a claim to relief that is plausible on its face.” Rodríguez–Reyes v.

Molina–Rodríguez, 711 F.3d 49, 53 (1st Cir. 2013) (quoting Grajales v. P.R. Ports

Auth., 682 F.3d 40, 44 (1st Cir. 2012)). Courts apply a two-pronged approach in

resolving a motion to dismiss. Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12

(1st Cir. 2011). First, courts must identify and disregard statements in the complaint

that merely offer legal conclusions couched as factual allegations. Id. (citing Ashcroft

v. Iqbal, 556 U.S. 662, 678 (2009)). Second, courts “must determine whether the

remaining factual content allows a reasonable inference that the defendant is liable

for the misconduct alleged.” A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st

Cir. 2013) (quotation marks and citation omitted). Courts accept all well-pleaded

facts as true and draw all reasonable inferences in the plaintiff’s favor. Rodríguez–

Reyes, 711 F.3d at 52−53. Determining the plausibility of a claim is “a context-specific

2 The Defendants specifically dispute this allegation but acknowledge that the Court must consider

task that requires the reviewing court to draw on its judicial experience and common

sense.” Id. at 53 (quoting Iqbal, 556 U.S. at 679).

The Defendants now move to dismiss certain defendants and claims in

Grendell’s sixteen-count complaint. In particular, the Defendants seek the dismissal

of: (1) all claims as to nine individual Defendants; (2) five claims as to all Defendants;

(3) two claims as to the State of Maine, the Maine State Police, and the individual

Defendants named in their official capacities; and (4) one claim as to all individual

Defendants.

A. Dismissal of Certain Individual Defendants

The Defendants maintain that the claims against nine individual

Defendants—Trooper Brian Bean, Detective Tucker Bonnevie, Trooper Robert Burke,

Trooper Bernard Campbell, Trooper David Coflesky, Sergeant Jeffrey Mills,

Detective Jonah O’Roak, Detective Benjamin Sweeney, and Sergeant Chris

Tremblay—should be dismissed because Grendell’s complaint does not allege that

they engaged in wrongful conduct. Grendell maintains that the motions to dismiss

should be denied as to these nine individual Defendants because they witnessed the

events of June 28 and 29 and took no preventative action to prevent the bombing and

shooting.3

“[A] bystander-officer who has a realistic opportunity to prevent the use of

excessive force by a fellow officer may in certain circumstances be held liable for a

failure to intervene [under § 1983].” Calvi v. Knox Cty., 470 F.3d 422, 428 n.3 (1st

3 Grendell’s complaint also alleges that these Defendants are liable under 42 U.S.C. §§ 1985(3), 1986.

Because I dismiss the causes of action arising under those statutes against all Defendants, see infra

Cir. 2006). However, an officer’s “mere presence at the scene, without more, does not

by some mysterious alchemy render him legally responsible . . . for the actions of a

fellow officer.” Id. at 428 (citing Gaudreault v. Municipality of Salem, 923 F.2d 203,

207 n.3 (1st Cir. 1990)). In evaluating whether an officer had a realistic opportunity

to intervene, the duration of the incident is a “salient consideration.” Morris v.

Tivnan, No. CV 14-40164-DHH, 2017 WL 1217109, at *5 (D. Mass. Mar. 31, 2017)

(collecting cases). Grendell’s complaint alleges that his shootout with the police

lasted about four hours and that law enforcement took at least forty-five minutes to

plan and execute the bombing. I now evaluate the complaint’s allegations against

the nine individual Defendants for whom the Defendants seek dismissal,

distinguishing between those whom the complaint alleges were present at the scene

during the events of June 28 and 29 and those whom it does not.

1. Individual Defendants Not Alleged to Have Been Present at the

Scene

Grendell’s complaint contains little mention of Defendants Bonnevie, Burke,

Campbell, Mills, O’Roak, or Sweeney. The complaint does not discuss Defendant

O’Roak at all, and its only mention of Bonnevie, Burke, Mills, and Sweeney is that

each is a member of the Maine State Police. The complaint describes Campbell

similarly, but also alleges that he was the commander of the Crisis Negotiation Team,

whom Detective Roy allegedly called “about contacting Grendell’s physician or a

mental health physician on communication with Grendell.” ECF No. 1 ¶ 30. Thus,

Grendell’s complaint has not alleged that any of these six Defendants—Bonnevie,

Burke, Campbell, Mills, O’Roak, or Sweeney—were present at the scene. Grendell’s

bombing or firefight or even had knowledge of them. On a motion to dismiss,

“[m]erely reciting elements of a claim will not do, . . . [n]or will alleging facts that are

too meager, vague, or conclusory to remove the possibility of relief from the realm of

conjecture.” Lydon v. Local 103, Int’l Bhd. of Elec. Workers, 770 F.3d 48, 53 (1st Cir.

2014) (internal citation and quotation marks omitted). Thus, the complaint does not

plausibly state a claim against these six individual Defendants. See, e.g., Rolón-

Merced v. Pesquera, Civil No. 14-1757 (DRD), 2017 WL 888219, at *6 (D.P.R. Mar. 6,

2017).

2. Individual Defendants Plausibly Alleged to Have Been Present at

the Scene

Grendell’s complaint provides slightly more detail as to the other three

individual Defendants for whom the Defendants seek dismissal: Bean, Coflesky, and

Tremblay. Specifically, the complaint alleges that an individual stated that Bean had

arrived at the scene at some point during the standoff. The complaint further alleges

that Coflesky was informed by another officer that he would be “responding to a

barricaded male subject in Dixmont.” ECF No. 1 ¶ 34. Finally, the complaint alleges

that Tremblay was a member of the “Reactionary Team,” that Tremblay drove the

LENCO at some point, and that Tremblay escorted the Dixmont Fire Department to

the destroyed house to close the valves on the propane tanks.

Although these allegations are not especially detailed, the First Circuit has

explained that “the plausibility inquiry properly takes into account whether discovery

can reasonably be expected to fill any holes in the pleader’s case.” García-Catalán v.

United States, 734 F.3d 100, 104 (1st Cir. 2013). And a district court has discretion

to allow “modest discovery” where such discovery “may provide the missing link.”

Menard v. CSX Transp., Inc., 698 F.3d 40, 45 (1st Cir. 2012). That is the case here.

Although the complaint’s allegations are fairly vague as to when, or if, Bean,

Coflesky, and Tremblay appeared at the scene, drawing all reasonable inferences in

Grendell’s favor, and given the length of the alleged shootout and bombing, the Court

can infer they arrived before those events ended. See Jorge v. Galarza-Soto, 124 F.

Supp. 3d 57, 68 (D.P.R. 2015) (denying a motion to dismiss on a failure to intervene

claim even where “the facts as pleaded by Plaintiffs are decently vague, particularly

with respect to when [a defendant] arrived to the scene . . . [because] it can be

reasonably inferred that [that defendant] arrived on scene before or shortly after” the

alleged use of excessive force); see also Jellyman v. City of Worcester, 354 F. Supp. 3d

95, 99 (D. Mass. 2019) (denying a motion to dismiss on a failure to intervene claim

since the information needed was within the defendants’ control); Rolón-Merced, 2017

WL 888219, at *3, *6 (same).

Accordingly, the Defendants’ Partial Motions to Dismiss are granted as to

Defendants Bonnevie, Burke, Campbell, Mills, O’Roak, and Sweeney, and denied as

to Defendants Bean, Coflesky, and Tremblay.

B. Dismissal of Certain Claims as to All Defendants

The Defendants maintain that certain claims in Grendell’s complaint should

be dismissed as to all Defendants, including claims of (1) an unlawful conspiracy

under 42 U.S.C § 1985(3) and an unlawful refusal to stop the conspiracy’s wrongs

under 42 U.S.C. § 1986; (2) a negligent failure to protect the rights of a mentally ill

person under 34-B M.R.S.A. §§ 3805 and 3862; (3) violations of federal and state

statutes concerning explosives and abnormally dangerous activities; (4) strict liability

for sellers of defective products under 14 M.R.S.A. § 221; and (5) spoliation of

evidence. I discuss each of these claims in turn.

1. Unlawful Conspiracy; Failure to Stop Unlawful Conspiracy

Grendell’s complaint alleges that the Defendants acted in concert to deny him

the protections of the United States Constitution in violation of 42 U.S.C. § 1985(3).

It also alleges that the Defendants, knowing of such a conspiracy, unlawfully

neglected or refused to prevent such wrongs under 42 U.S.C. § 1986. Because a §

1986 claim is dependent on the presence of a conspiracy under § 1985, I begin with

the § 1985(3) claim. See Hahn v. Sargent, 523 F.2d 461, 470 (1st Cir. 1975). A §

1985(3) claim has four elements: (1) a conspiracy; (2) a conspiratorial purpose to

deprive the plaintiff of the equal protection of the laws; (3) an overt act in furtherance

of the conspiracy; and (4) either an injury to person or property, or a deprivation of a

constitutionally protected right. See Parker v. Landry, 935 F.3d 9, 17–18 (1st Cir.

2019) (citing Pérez-Sánchez v. Pub. Bldg. Auth., 531 F.3d 104, 107 (1st Cir. 2008)).

As to the second element—that there was a conspiratorial purpose to deprive

Grendell of the equal protection of the laws—“[i]t has long been established that a

claim under § 1985(3) requires ‘some racial, or perhaps otherwise class-based,

invidiously discriminatory animus behind the conspirators’ action.’” Pérez-Sánchez,

531 F.3d at 107 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)).

Grendell’s complaint does not sufficiently allege a discriminatory animus

behind the conspirators’ actions. Specifically, Grendell’s complaint alleges only that

the Defendants “knew that Michael Grendell was mentally incompetent . . . and that

he was suffering some kind [of] severe mental breakdown,” and that the Defendants

were motivated to act by “Grendell’s class-based status as an elderly, single, white

male with severe mental health disorders, deafness and inability to comprehend, all

of which involved the conspiracy.” ECF No. 1 ¶¶ 113, 115. A plaintiff cannot avoid

dismissal with only “[t]hreadbare recitals of the elements of a cause of action,

supported by mere conclusory statements.” Iqbal, 556 U.S. at 678. Grendell’s

complaint therefore fails to “allege facts that would permit [a court] plausibly to infer

an agreement among the defendants, motivated by some discriminatory animus . . .

.” Parker, 935 F.3d at 18. Accordingly, I grant the Defendants’ Partial Motions to

Dismiss as to the § 1985(3) claim.4

Because “a § 1986 claim must be predicated upon a valid § 1985 claim,” the

Defendants’ Partial Motions to Dismiss are also granted as to the § 1986 claim. Oberg

v. City of Taunton, 972 F. Supp. 2d 174, 201 (D. Mass. 2013) (quoting Mian v.

Donaldson, Lufkin & Jenrette Sec. Corp., 7 F.3d 1085, 1088 (2d Cir. 1993)); cf. Maymí

v. P.R. Ports Auth., 515 F.3d 20, 31 (1st Cir. 2008) (“[A]bsent a showing of conspiracy,

[a plaintiff] has no claim under § 1986, which extends liability to those who knowingly

failed to prevent conspiracies under § 1985.”).

2. Negligent Failure to Protect the Rights of a Mentally Ill Person

Under 34-B M.R.S.A. §§ 3805 and 3862

Grendell’s complaint also asserts that the Defendants negligently failed to

protect his rights as a mentally ill person in violation of 34-B M.R.S.A. §§ 3805 and

4 Because Grendell has not sufficiently stated a claim based on any of his purported classes (race,

gender, marital status, age, and sensory and mental disabilities), I need not determine whether, as a

3862. The complaint alleges that Grendell began experiencing mental health issues

in mid-June 2018, and no party contests that Grendell met the relevant statute’s

definition of a “mentally ill person” on June 28 and 29. See 34-B M.R.S.A. § 3801(5)

(“‘Mentally ill person’ means a person having a psychiatric or other disease that

substantially impairs that person’s mental health . . . .”).

Grendell’s complaint alleges that 34-B M.R.S.A. § 3862 required the

Defendants to protect Grendell and that the Defendants’ failure to do so permits

Grendell to bring a civil cause of action against them.5 However, § 3862 does not

support Grendell’s assertion that law enforcement has a duty to protect the mentally

ill by taking them into protective custody. Rather, as its title makes evident, the

provision concerns a “law enforcement officer’s power” to take a mentally ill person

into protective custody:

If a law enforcement officer has probable cause to believe that a person

may be mentally ill and that due to that condition the person presents a

threat of imminent and substantial physical harm to that person or to

other persons, . . . the law enforcement officer . . . [m]ay take the person

into protective custody . . . .

34-B M.R.S.A. § 3862(1)(A) (West 2020) (emphasis added). The statute thus does not

require that police officers take mentally ill persons into protective custody; it merely

permits them to do so under certain circumstances. Cf. Johnson v. City of Biddeford,

No. 2:17-cv-00264-JDL, 2020 WL 1877964, at *7 (D. Me. Apr. 15, 2020) (explaining

that a police department’s general order, which provided certain circumstances under

5 Grendell’s complaint frequently mentions that he suffered from an “inability to make an informed

decision” as that term is defined in 34-B M.R.S.A. § 3801(10) and that the Defendants had an obligation

to protect Grendell from a “likelihood of serious harm” as that term is defined in 34-B M.R.S.A §

3801(4-A). Neither of these defined terms appears in the specific statutory provisions cited within

which an officer “shall be empowered” to take a person into protective custody, did

not require an officer to do so).

Grendell asserts that a second statutory provision, 34-B M.R.S.A. § 3805(2),

makes the actions authorized by § 3862 mandatory. That provision prohibits the

“denial to any person of any of the rights accorded to him under [the] subchapter”

containing § 3805. 34-B M.R.S.A. § 3805(2) (West 2020). However, while § 3805(2)

prohibits an officer from violating a person’s rights as enumerated in other sections,

see, e.g., 34-B M.R.S.A. § 3803 (“Patient’s rights”), it does not itself convert § 3862’s

provision about a “law enforcement officer’s power” into a grant of rights.

Moreover, the Maine Law Court has explained that it “will recognize a private

cause of action to enforce a statute only where the legislative intent to create such a

remedy is clear.” Hottentot v. Mid-Me. Med. Ctr., 549 A.2d 365, 367 (Me. 1988) (citing

Larrabee v. Penobscot Frozen Foods, Inc., 486 A.2d 97, 101 (Me. 1984)); see also

Charlton v. Town of Oxford, 774 A.2d 366, 372 (Me. 2001). The penalty for a violation

of one’s rights under § 3805 is a criminal punishment, not a civil remedy. See 34-B

M.R.S.A. § 3805(3) (“[C]ausing a denial of rights is a Class C crime.”). Thus, the

Legislature demonstrated no intent to provide a civil remedy for violations of § 3805.

Accordingly, even if 34-B M.R.S.A. § 3805 and § 3862, individually or in tandem,

required the officers to take Grendell into protective custody, Grendell would not be

able to maintain a cause of action against the Defendants under them.6 Accordingly,

the Defendants’ Partial Motions to Dismiss are granted on this count.7

3. Violations of State and Federal Laws and Maine Common Law

Concerning Explosives

Grendell’s complaint alleges that the Defendants violated various state and

federal laws concerning the transportation and usage of explosives. Specifically,

Grendell’s complaint asserts that the Defendants violated a federal criminal statute,

18 U.S.C. § 844(d); a Maine state statute, 17 M.R.S.A. § 2791; and the Maine common

law for strict liability associated with abnormally dangerous activities. I review each

of these allegations in turn.

First, Grendell’s complaint seeks to hold the Defendants civilly liable under 18

U.S.C. § 844(d), which in pertinent part provides that, “[w]hoever transports or

receives . . . in interstate or foreign commerce any explosive with the knowledge or

intent that it will be used to kill, injure, or intimidate any individual or unlawfully to

damage or destroy any building, vehicle, or other real or personal property, shall be”

imprisoned or fined or both. 18 U.S.C.A. § 844(d) (West 2020). Section 844 is the

penalties provision of a criminal statute, 18 U.S.C. § 842, which itself provides no

civil cause of action. See Lazore v. Ky. Powder Co., 178 F.3d 1295, 1999 WL 97248,

at *2 (6th Cir. Feb. 19, 1999) (unpublished table decision) (affirming summary

6 Grendell’s complaint also suggests that this count, which alleges that the Defendants should have

taken protective custody of him, is cognizable under the common law of negligence. Grendell, however,

has not identified a duty that obligated the Defendants to take him into protective custody.

7 Because I dismiss the count for the reasons stated above, I do not address the Defendants’

additional argument that, under the facts alleged in Grendell’s complaint, the Defendants had no

opportunity to take Grendell into protective custody because Grendell refused to speak with them and

judgment for defendant since “Congress did not intend to provide a cause of action

under § 842”); see also Cok v. Cosentino, 876 F.2d 1, 2 (1st Cir. 1989) (noting that

various other statutory sections under Title 18 “do not give rise to a civil action for

damages”). It follows that § 844, the penalties provision of that criminal statute, also

does not give rise to a civil cause of action.8

Second, Grendell’s complaint seeks to hold the Defendants liable under 17

M.R.S.A. § 2791, which provides that, “[p]ersons engaged in blasting lime rock or

other rocks shall before each explosion give seasonable notice thereof, so that all

persons or teams approaching shall have time to retire to a safe distance from the

place of said explosion” and that “[n]o such explosion shall be made after sunset.” 17

M.R.S.A. § 2791 (West 2020). The case here does not involve persons engaged in

blasting lime rock or other rocks. Cf. Dyer v. Me. Drilling & Blasting, Inc., 984 A.2d

210, 218 (Me. 2009) (noting that 17 M.R.S.A. § 2791 “deals with blasting ‘lime rock or

other rocks,’ requiring blasters to give seasonable notice so that those approaching

stay a safe distance from the explosion”); id. at 223 (Alexander, J., concurring in part)

(noting that 17 M.R.S.A. § 2791 established “strict liability in blasting cases in

certain, very limited, circumstances”). Thus, § 2791 is inapplicable here.

Third, Grendell’s complaint seeks strict liability for the use of a bomb under

Maine common law. The Maine Law Court has adopted the Restatement (Second) of

Tort’s §§ 519–520 (1977) as to strict liability for abnormally dangerous activities. See

8 Grendell’s complaint also alleges that the Defendants negligently failed to obtain certificates of

insurance necessary to transport and use the explosive. Grendell, however, does not point to any

statute under which the Defendants could be held civilly liable for this alleged failure.

Dyer, 984 A.2d at 215. The Defendants did not address whether dismissal of this

claim is proper, and I therefore decline to dismiss it.

In sum, the Defendants’ motions to dismiss are granted as to Grendell’s claims

under 18 U.S.C. § 844(d) and 17 M.R.S.A. § 2791 and denied as to the strict liability

claim under Maine common law.

4. Liability under Maine’s Strict Liability Statute for Defective

Products

Grendell’s complaint alleges strict liability for the use of a bomb under 14

M.R.S.A. § 221. That statute provides that, subject to certain conditions, “[o]ne who

sells any goods or products in a defective condition unreasonably dangerous to the

user or consumer or to his property is subject to liability for physical harm thereby

caused to a person.” 14 M.R.S.A. § 221 (West 2020). The complaint does not allege

that any of the Defendants were sellers of the bomb that blew up Grendell’s home,

and therefore dismissal of this count is warranted. See Stanley v. Schiavi Mobile

Homes, Inc., 462 A.2d 1144, 1147–48 (Me. 1983) (dismissing complaint against

defendant who “did not sell the product in question, defective or otherwise, and thus

lacked the status of ‘one who sells’”); see also Austin v. Raybestos-Manhattan, Inc.,

471 A.2d 280, 284 (Me. 1984) (noting that 14 M.R.S.A. § 221 “imposes liability only

on the person who sells the product in question”).9

9 Grendell, citing 14 M.R.S.A § 161 and the Restatement (Second) of Torts § 402A cmt. f (1965),

asserts that he may nevertheless maintain a claim for strict liability, because privity is not a required

element. However, the presence or absence of privity between Grendell and the Defendants does not

bear on the issue here, which is whether the Defendants were sellers of the bomb used on Grendell’s

house.

5. Spoliation of Evidence

Grendell’s complaint contains a claim for spoliation of evidence, which is

apparently based on the allegation that the Defendants arranged for a private

company to “bulldoze and destroy” Grendell’s home sometime after the explosion on

June 29. See ECF No. 9 at 10.

“There is no precedent in Maine, state or federal, recognizing a tort cause of

action for negligent destruction of a cause of action or for negligent spoliation of

evidence prior to litigation.” Koken v. Auburn Mfg., Inc., No. CIV. 02-83-B-C, 2004

WL 51100, at *3 (D. Me. Jan. 8, 2004). “Although most state courts of last resort have

not addressed the issue, it appears that of those that have been asked to recognize

the cause, most have declined the invitation.” Id. (collecting cases). Moreover, “[i]n

the few states that recognize an independent tort for spoliation of evidence, courts

have required, [among other things], that a party show a causal relationship between

the act of spoliation and the inability of the complainant to prove her lawsuit.”

Malinowski v. Documented Vehicle/drivers Sys., Inc., 66 F. App’x 216, 222 (1st Cir.

2003). Grendell’s complaint does not allege that the Defendants’ conduct resulted in

the spoliation of any evidence necessary to his case. Therefore, the claim for

spoliation of evidence is dismissed. See Gagne v. D.E. Jonsen, Inc., 298 F. Supp. 2d

145, 147–48 (D. Me. 2003) (concluding that a party’s proposed addition of a spoliation

claim to the complaint would be futile, in part, because it did “not allege all of the

elements of such a claim as it is recognized in other jurisdictions”).

C. Dismissal of Certain Claims as to the State of Maine, the Maine State

Police, and the Individuals Defendants Sued in Their Official

Capacities

The Defendants seek dismissal of certain claims contained in Grendell’s

complaint against the State of Maine, the Maine State Police, and the individual

Defendants in their official capacities. In particular, the Defendants seek dismissal

of claims for the alleged (1) violations of the United States Constitution under 42

U.S.C. § 1983; (2) unlawful conspiracy under 42 U.S.C § 1985(3); (3) unlawful refusal

to stop the conspiracy’s wrongs under 42 U.S.C. § 1986; and (4) violations of the

United State Constitution and the Maine Constitution under the Maine Civil Rights

Act, 5 M.R.S.A §§ 4681–4685. Each of these statutory sections provides for liability

against a “person.” The Defendants maintain that the State of Maine, the Maine

State Police, and the individual Defendants in their official capacities are not

“persons” within the meaning of these statutes, and thus cannot be held liable under

them.

As an initial matter, I note that claims brought against the individual

Defendants acting in their official capacities and against the Maine State Police are

the same as the claims brought against the State. As the Supreme Court has

explained, “a suit against a state official in his or her official capacity is not a suit

against the official but rather is a suit against the official’s office,” which “is no

different from a suit against the State itself.” Will v. Michigan Dep’t of State Police,

491 U.S. 58, 71 (1989) (citations omitted). Accordingly, I review whether the plaintiff

may assert his claims against the State under the four statutory provisions at issue.

For reasons I will explain, precedent firmly establishes that he cannot.

As to claims under § 1983, the Supreme Court has explained that “neither a

State nor its officials acting in their official capacities are ‘persons’ under § 1983.”

Id.; accord Nieves-Marquez v. Puerto Rico, 353 F.3d 108, 124 (1st Cir. 2003) (“No

cause of action for damages is stated under 42 U.S.C. § 1983 against a state, its

agency, or its officials acting in an official capacity.”). The same holds true for claims

brought under § 1985 and § 1986. See Woodward v. Chautauqua Cty., No. 15-CV-

0246-RJA-MJR, 2016 WL 4491712, at *2 (W.D.N.Y. July 5, 2016) (“The Supreme

Court’s logic [in Will] extends to sections 1985 and 1986, which similarly refer only

to wrongs committed by ‘persons’ and not by states.”), adopted by 2016 WL 4475044

(W.D.N.Y. Aug. 25, 2016); Santiago v. Keyes, 839 F. Supp. 2d 421, 428 (D. Mass. 2012)

(collecting cases); see also Parker v. Dall-Leighton, No. 2:17-CV-216-GZS, 2017 WL

6210892, at *7 n.9 (D. Me. Dec. 8, 2017). Finally, the Maine Civil Rights Act’s

protections and immunities are generally “coextensive with those afforded by 42

U.S.C. § 1983,” Estate of Bennett v. Wainwright, 548 F.3d 155, 178–79 (1st Cir. 2008),

and the Maine Law Court has acknowledged that “the State is not a ‘person’ within

the scope of the statute,” Jenness v. Nickerson, 637 A.2d 1152, 1158 (Me. 1994). See

also Doe I v. Williams, 61 A.3d 718, 739 (Me. 2013) (“A state, including a state official

in his or her official capacity, is not a person within the meaning of § 1983 or the

MCRA . . . .”).

Accordingly, the Defendants’ Partial Motions to Dismiss are granted as to the

§ 1983, § 1985(3), § 1986, and Maine Civil Rights Act claims brought against the State

of Maine, the Maine State Police, and the individual Defendants in their official

capacities.

D. Dismissal of Claims Under Title II of the Americans with Disabilities

Act and Section 504 of the Rehabilitation Act as to All Individual

Defendants

Grendell’s complaint also asserts that the Defendants violated Title II of the

Americans with Disabilities Act, 42 U.S.C. § 12132, and Section 504 of the

Rehabilitation Act, 29 U.S.C. § 794. “Both statutes provide, in nearly identical

language, that ‘no qualified individual with a disability shall, by reason of such

disability, be excluded from participation in or be denied the benefits of the services,

programs, or activities of a public entity, or be subjected to discrimination by any

such entity.’” Nunes v. Mass. Dep’t of Corr., 766 F.3d 136, 144 (1st Cir. 2014) (quoting

42 U.S.C. § 12132 and citing 29 U.S.C. § 794(a)); see also Toledo-Colon v. Puerto Rico,

812 F. Supp. 2d 110, 117 (D.P.R. 2011) (“In accordance with the approach taken by

the parties and other courts, the court construes Plaintiff’s ADA and Rehabilitation

Act counts as presenting a single claim.”). Grendell’s complaint alleges, among other

things, that the Defendants treated Grendell without regard for his disabilities:

The Defendants refused proper, appropriate and adequate services,

auxiliary aids, or proper commands [for Grendell], and then became

annoyed, impatient and perturbed with [him], even though they knew

or should have known [he] could not understand or hear their commands

and they intentionally and with deliberate indifference, failed and

refused to wait for, or provide, psychological or mental health experts to

arrive and assist with providing those necessary services and programs

to [Grendell] regarding his disabilities.

ECF No. 1 ¶ 130. The Defendants maintain that claims under Title II of the

Americans with Disabilities Act and Section 504 of the Rehabilitation Act may not be

brought against individuals acting in their individual capacities.

The Defendants are correct. “This Court and other courts have held that there

is no individual liability under Title II of the ADA or section 504 of the Rehabilitation

Act.” Gross v. Landry, No. 1:17-CV-00297-JAW, 2017 WL 5509995, at *5 (D. Me. Nov.

17, 2017) (citing DeCotiis v. Whittemore, 842 F. Supp. 2d 354, 363 n.5 (D. Me. 2012)),

adopted by No. 1:17-CV-00297-JAW, 2017 WL 6454235 (D. Me. Dec. 18, 2017). Accord

Abbott v. Town of Salem, No. CIV. 05-CV-127-SM, 2006 WL 276704, at *4 (D.N.H.

Feb. 2, 2006) (“[N]either Title II of the ADA nor § 504 of the Rehabilitation Act

provides for individual capacity suits against state officials.” (alteration in original)

(quoting Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 107 (2d Cir.

2001))). Accordingly, the Defendants’ Partial Motions to Dismiss are granted as to

all the individual Defendants for the claims under Title II of the ADA and section 504

of the Rehabilitation Act.

III. CONCLUSION

For the foregoing reasons, the Defendants’ Partial Motions to Dismiss (ECF

Nos. 9, 30) are hereby:

1. GRANTED in part as to Defendants Tucker Bonnevie, Robert Burke,

Bernard Campbell, Jeffrey Mills, Jonah O’Roak, and Benjamin Sweeney as

to all claims;

2. GRANTED in part as to the remaining Defendants as to:

a. Count II (Conspiracy Under 42 U.S.C § 1985(3); Unlawful Refusal to

Stop the Conspiracy’s Wrongs under 42 U.S.C. § 1986);

b. Count VIII (Negligent Failure to Protect the Rights of a Mentally Ill

Person under 34-B M.R.S.A. §§ 3805 and 3862);

c. Count X’s claims (Liability for Explosives and Unreasonably Dangerous

Devices and Failure to Warn) under 18 U.S.C. § 844(d) and 17 M.R.S.A.

§ 2791;

d. Count XI (Strict Liability for Sellers of Defective Products under 14

M.R.S.A. § 221); and

e. Count XV (Spoliation of Evidence);

3. GRANTED in part as to Defendants the State of Maine, the Maine State

Police, and the individual Defendants named in their official capacities as

to:

a. Count I (Violations of Rights Under the United States Constitution

Pursuant to 42 U.S.C. § 1983);

b. Count II (Conspiracy Under 42 U.S.C § 1985(3); Unlawful Refusal to

Stop the Conspiracy’s Wrongs Under 42 U.S.C. § 1986); and

c. Count IX (Violations of Rights under the United States and Maine

Constitutions Pursuant to the Maine Civil Rights Act, 5 M.R.S.A §§

4681–4685);

4. GRANTED in part as to all individual Defendants in their individual

capacities as to Count III (Violations of Title II of the Americans with

Disabilities Act, 42 U.S.C. §§ 12132, and Section 504 of the Rehabilitation

Act, 29 U.S.C. § 794);

5. DENIED in part as to Defendants Brian Bean, David Coflesky, and Chris

Tremblay as to all claims not otherwise dismissed as to them; and

6. DENIED in part as to Count X’s claim (Liability for Explosives and

Unreasonably Dangerous Devices and Failure to Warn) for strict liability

under Maine common law regarding the use of explosives.10

10 The Motions to Dismiss did not address several other Defendants and counts contained in

Grendell’s complaint, which therefore remain part of the case. The other named individual Defendants

include Brian MacMaster of the Maine Attorney General’s Office and various members of the Maine

State Police including, Colonel John E. Cote, Major Christopher Grotton, Sergeant Alden Bustard,

Trooper Jeremy Caron, Trooper Bryan Creamer, Trooper Andrew Hardy, Sergeant Christopher

Harriman, Trooper Caleb McGary, and Detective Gregory Roy. The counts not addressed by this Order

include state-law claims for assault and battery, negligence, negligent and intentional infliction of

SO ORDERED.

Dated: July 10, 2020

/s/ JON D. LEVY

CHIEF U.S. DISTRICT JUDGE