JURKENAS v. CITY OF BREWER

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

JOSEPH JURKENAS, et al., )

)

Plaintiffs )

)

v. ) 1:20-cv-00183-JDL

)

CITY OF BREWER, et al., )

)

Defendants )

ORDER ON PLAINTIFFS’ REQUEST FOR LEAVE TO AMEND COMPLAINT

AND RECOMMENDED DECISION ON DEFENDANTS’ MOTION TO DISMISS

Plaintiffs allege various claims pursuant to 42 U.S.C. § 1983 against the City of

Brewer and two municipal employees arising from a series of events related to their

occupancy and alleged removal from certain real property in Brewer, Maine. (Amended

Complaint, ECF Nos. 1, 6.)

Upon review of Plaintiffs’ amended complaint pursuant to 28 U.S.C. § 1915(e)(2),

I recommended the Court dismiss Plaintiffs’ claims except for the claim that Defendants

unlawfully deprived Plaintiffs of their home. (Recommended Decision, ECF No. 9.)

Because Plaintiffs subsequently requested leave to amend their complaint, the Court

deferred consideration of the Recommended Decision to permit an assessment of Plaintiffs’

motion to amend (Motion to Amend, ECF No. 17), the issues raised in Plaintiffs’ objection

to the Recommended Decision (Objection, ECF No. 10), and Defendants’ motion to

dismiss and/or for judgment on the pleadings. (Motion to Dismiss, ECF No. 16.)

Following a review of the pleadings and after consideration of the parties’

arguments, I deny Plaintiffs’ request for leave to amend the complaint. Additionally, I

recommend that the Court grant in part and deny in part Defendant’s motion to dismiss.1

BACKGROUND

A. Factual Background

The facts are drawn from Plaintiffs’ amended complaint, including the attached

exhibits, and Plaintiffs’ subsequent pleadings. See Waterman v. White Interior Sols., No.

2:19-cv-00032-JDL, 2019 U.S. Dist. LEXIS 191506, at *4 (D. Me. Nov. 5, 2019) (stating

that a court may “consider other filings by a self-represented plaintiff, ‘including his

response to the motion to dismiss, to understand the nature and basis of his claims’”

(quoting Wall v. Dion, 257 F. Supp. 2d 316, 318 (D. Me. 2003)). Plaintiffs’ factual

allegations are deemed true when evaluating a Motion to Dismiss. McKee v. Cosby, 874

F.3d 54, 59 (1st Cir. 2017).

Plaintiffs Joseph and Patricia Jurkenas lived at a home in Brewer with Patricia’s

mother, Marie Pozniak. Marie was hospitalized in December 2012 and, later, was

discharged and cared for at the home in Brewer. (Attachment, No. 1-5.) Plaintiffs allege

that beginning in October 2013, they began having difficulties with City officials and local

1 Plaintiffs filed two sur-replies in connection with Defendants’ motion to dismiss. (Sur-replies, ECF Nos.

22, 27.) After Plaintiffs filed the first sur-reply, Defendants moved to strike the sur-reply as unauthorized

by the applicable civil rules and because the sur-reply was not limited to addressing the issues raised in

Defendants’ reply memorandum. (Motion to Strike, ECF No. 23.) As Defendants note, in the sur-reply,

Plaintiffs reiterate their prior arguments. The second sur-reply also does not raise any new issues. Because

Plaintiffs filed a sur-reply, I allowed Defendants to file additional exhibits related to the motion to dismiss.

(Orders, ECF Nos. 26, 28.) Upon review of the sur-replies, I discern no prejudice to Defendants if the sur-

replies are not stricken. I, therefore, deny the motion to strike. Plaintiffs, however, are advised that a sur-

reply is not permitted without leave of court. If Plaintiffs file a sur-reply on any motion in the future without

leave of court, the sur-reply will be stricken.

police. (Attachment, ECF Nos. 1-3, 1-4, 1-5.) Plaintiffs assert the difficulties centered on

the adequacy of care Marie was receiving at home and Plaintiffs’ requests for ambulance

services. (Attachment, ECF Nos. 1-3, 1-4, 1-5; Objection at 6.)

According to Plaintiffs, on May 24, 2014, City officials, including Defendant

Brooks, who was the City’s code enforcement officer, used baseless reasons to remove

Plaintiffs from their home and to prevent them from returning. (Attachment, ECF No. 1-

1, 1-3, 1-4; Objection at 2-5.) As alleged, the stated reasons included, in part, a report of a

fire at the home and the City’s subsequent response to that fire; an oil spill at the home;

and safety and electrical violations. (Attachment, ECF Nos. 1-3, 1-4; Objection at 3-4.)

Plaintiffs allege that as the result of the actions of City officials, Marie was removed from

the home and transferred to a local hospital. (Attachment, ECF No. 1-4.) Plaintiffs also

maintain that City officials did not allow Plaintiffs to enter the property, declared the home

a “bio-hazard,” and disconnected the electrical supply to the home. (Attachment, ECF Nos.

1-1, 1-4; Objection at 2-4.) Plaintiffs allege that on June 2, 2014, Joseph and Patricia met

with the City Manager, Defendant Bost, to discuss the events, but Defendant Bost was

dismissive of their concerns and called the police to remove them from his office.

(Attachment, ECF No. 1-2.)

On June 12, 2014, Plaintiffs received a “Notice of Violation/Order for Corrective

Action” from the City’s Code Enforcement Officer. (Attachment, ECF No. 8-6.) The

notice informed Plaintiffs that their property violated various City ordinances and building

codes. (Id.) Additionally, the notice sought to declare the home a “dangerous building” in

accordance with Maine law. See 17 M.R.S. § 2851. (Id.) The notice described the actions

necessary to correct the alleged violations and stated that Plaintiffs had a right to appeal

the notice within thirty days pursuant to the City’s land use code. (Id.) Plaintiffs filed an

appeal from the notice of violation in August 2014.2 (Objection at 9; see Attachment, ECF

No. 10-9.) Subsequently, on September 16, 2014, the City Council scheduled a public

hearing to determine whether, pursuant to 17 M.R.S. § 2851, Plaintiffs’ home constituted

a “dangerous building.”3 (Attachment, ECF No. 10-7.) Plaintiffs allege that the hearing

did not occur at an October 14, 2014, meeting of the City Council. (Objection at 9; see

Attachment, ECF No. 10-8.)

Marie died on April 27, 2015. (Attachment, ECF No. 1-4; Objection at 10.)

Plaintiffs allege that the City has approved tenants to rent the same structure in the

following years but continues to prevent Plaintiffs from occupying the property.

(Attachment, ECF No. 1-4; Objection at 2.) Plaintiff Joseph Jurkenas was provided

“limited access” to the home in September 2014 to make electrical repairs. (Objection at

8.)

B. Procedural History

On May 22, 2020, Plaintiffs filed a complaint in this Court asserting various claims

against the City and two municipal employees related to their alleged removal from their

2 Attached to their objection, Plaintiffs provided an “Appeal” letter, which was dated June 16, 2014, and

addressed to the Brewer Zoning Board of Appeals. (Attachment, ECF No. 10-5.) It is unclear whether this

is the same appeal letter that was later filed in August 2014. (See Objection at 9, ECF No. 10; Attachment,

ECF No. 10-9.)

3 Plaintiffs submitted a “Notice of Unfit for Human Habitation” placard that was posted on Plaintiffs’ home

on September 18, 2014. (Notice, ECF No. 10-11.)

property on May 24, 2014.4 The complaint was accompanied by a Motion for Leave to

Proceed in Forma Pauperis, which the Court granted on May 24, 2020. (Motion, ECF Nos.

2, 3.) On June 6, 2020, the Court also granted Plaintiffs’ motion to amend the complaint,

permitting Plaintiffs to add the Estate of Marie L. Pozniak as a party. (Motion to Amend,

ECF Nos. 6, 7.)

After a preliminary review of Plaintiffs’ complaint in accordance with 28 U.S.C.

1915(e)(2), I concluded that “because Plaintiffs’ allege that they were unable to participate

in the proceeding at which the decision to remove them from the property was made,

Plaintiffs have asserted enough facts to proceed on their claim that the defendants

wrongfully deprived them of their home under color of state law.” (Recommended

Decision at 7.) I also recommended the Court dismiss Plaintiffs’ remaining claims, which

included a request to initiate criminal charges against one of the defendants. (Id. at 5.)

On August 5, 2020, Plaintiffs filed an objection to the Recommended Decision,

seeking “to present additional evidence, add detail, and plead the court [to] reconsider” the

July 23 recommended decision. (Objection at 1.) Plaintiffs ask the Court to recognize a

violation of their due process rights in connection with the alleged removal from their home

on May 24, 2014, and request leave to amend their complaint in order to add a claim for

wrongful death. (Id. at 2, 12.)

On August 14, 2020, Defendants returned an executed waiver of service. (ECF No.

13.) On September 8, Defendants moved to dismiss Plaintiffs’ amended complaint.

4 The form complaint named Joseph Jurkenas and his wife, Patricia Jurkenas, as plaintiffs. Joseph Jurkenas

signed the complaint. The complaint included six attachments that further described Plaintiffs’ allegations.

Defendants raise various procedural and substantive deficiencies in Plaintiffs’ amended

complaint and assert a qualified immunity defense. (Motion at 4-17.)

DISCUSSION

A. Plaintiffs’ Request for Clarification of Recommended Decision

As part of their objection to the Recommended Decision, Plaintiffs ask for a

clarification of the Recommended Decision. (Objection at 1.) To clarify, after a review of

the facts alleged in Plaintiffs’ amended complaint, and when viewing the facts in the

amended complaint as true and drawing reasonable inferences in favor of the Plaintiffs, see

McKee, 874 F.3d at 59, I determined that Plaintiffs have alleged a claim that Defendants

unlawfully deprived them of their home under the color of state law and without due

process.5 See Doyle v. Town of Falmouth, No. 2:19-cv-00229-NT, 2019 U.S. Dist. LEXIS

183409, at *5 (D. Me. Oct. 23, 2019) (“If a pro se plaintiff provides sufficient facts, a court

can intuit the correct cause of action.” (internal quotation marks omitted)). Plaintiffs have

thus alleged a violation of their substantive and procedural due process rights.

B. Plaintiffs’ Request to Amend Complaint

Plaintiffs seek leave to amend the amended complaint to add a claim for wrongful

death. (Objection at 12.) Federal Rule of Civil Procedure 15(a) governs amendments to

pleadings before trial. In certain instances, “[a] party may amend its pleading once as a

matter of course.” Fed. Civ. P. 15(a)(1). “Otherwise, as here, ‘a party may amend its

pleading only with the opposing party’s written consent or the court’s leave,’ and ‘[t]he

5 As noted in the Recommended Decision, such a claim may be characterized in several closely-related

ways. (Recommended Decision at 3.)

court should freely give leave when justice so requires.’” Old Town Util. & Tech. Park,

LLC v. Consol. Edison Sols., Inc., No. 2:19-cv-00029-JDL, 2020 U.S. Dist. LEXIS 94294,

at *10-11 (D. Me. May 29, 2020) (quoting Fed. Civ. P. 15(a)(2)). However, “this ‘does

not mean . . . that a trial court must mindlessly grant every request for leave to amend.’”

Mulder v. Kohl’s Dep’t Stores, Inc., 865 F.3d 17, 20 (1st Cir. 2017) (alteration in original)

(quoting Aponte-Torres v. University of P.R., 445 F.3d 50, 58 (1st Cir. 2006)). “[A] district

court may deny leave to amend when the request is characterized by ‘undue delay, bad

faith, futility, [or] the absence of due diligence on the movant’s part.’” Nikitine v.

Wilmington Trust Co., 715 F.3d 388, 390 (1st Cir. 2013) (quoting Palmer v. Champion

Mortg., 465 F.3d 24, 30 (1st Cir. 2006)). When considering whether an amendment is

futile, “[a court] view[s] futility through the lens of Federal Rule of Civil Procedure

12(b)(6).” Parker v. Landry, 935 F.3d 9, 13 (1st Cir. 2019). “[A] proposed amendment is

futile if it fails to ‘state a claim to relief that is plausible on its face.’” Id. (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

A claim for wrongful death under Maine law is governed by 18-C M.R.S. § 2-807.

In relevant part, the statute provides that “[e]very wrongful death action must be brought

by and in the name of the personal representative or special administrator of the deceased

person. . . .” 18-C M.R.S. § 2-807(2). Moreover, any wrongful death action brought

against a “governmental entity” is limited by the Maine Tort Claims Act (MTCA). Id. §

2-807(4); see 14 M.R.S. 8104-C. Under the MTCA, to assert an action against a

governmental entity or its employees, a claimant must first file a notice with the

governmental entity “[w]ithin 365 days after any claim or cause of action” accrues. 14

M.R.S. § 8107(1). Additionally, the MTCA provides that “[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. Maine law “define[s] the time of accrual as the time

the plaintiff sustains a judicially cognizable injury.” McKinnon v. Honeywell Int'l, Inc.,

2009 ME 69, ¶ 11, 977 A.2d 420 (internal quotation marks omitted).

Here, Plaintiffs do not propose to assert the wrongful death claim “in the name of

the personal representative or special administrator,” 18-C M.R.S. § 2-807(2), of the Estate

of Marie Pozniak. Further, because their cause of action accrued, at the latest, on April 27,

2015 (Objection at 12), Plaintiffs have failed to meet the time requirements set forth in the

MTCA for bringing a wrongful death claim against a governmental entity or its employees.

See 14 M.R.S. §§ 8107, 8110. Because the record does not reflect that Plaintiffs are legally

authorized to act on behalf of the Estate of Marie Pozniak and because Plaintiffs have not

otherwise satisfied the requirements of the MTCA, Plaintiffs’ requested amendment would

be futile.6

6 Even if the failure to file the required notice of claim and the expiration of the statute of limitations are

deemed affirmative defenses that would be more appropriately considered if Defendants asserted the

defenses in response to an amended complaint, given that the record (including Plaintiffs’ pleadings) lacks

any evidence that Plaintiffs have been appointed personal representative(s) of the Estate of Marie Pozniak,

Plaintiffs cannot assert a wrongful death claim.

C. Defendants’ Motion to Dismiss7

1. Proper Plaintiffs

Defendants argue that Plaintiffs Patricia Jurkenas and the Estate of Marie Pozniak

are not proper plaintiffs in this matter because neither Patricia nor a representative of the

Estate had signed the complaint. (Motion at 4-5.) As to the Estate of Marie Pozniak,

Defendants contend that there was “neither a legal Estate created nor a Personal

Representative formally appointed” through which such an entity could have brought a

claim in this matter. (Id.) Because neither Patricia nor the Estate signed the complaint as

amended, Defendants assert that there was not proper service of the complaint as to Patricia

and the Estate. See Fed. R. Civ. P. 12(b)(4)-(5). In effect, Defendants argue that Joseph

Jurkenas is the only proper plaintiff in this matter.

Federal Law provides that “[i]n all courts of the United States the parties may plead

and conduct their own cases personally or by counsel as, by the rules of such courts,

respectively, are permitted to manage and conduct causes therein.” 28 U.S.C. § 1654.

Although the law permits a party to “conduct their own cases personally,” id., the First

Circuit has “interpreted [section 1654] as barring a non-lawyer from representing anyone

but himself,” O'Diah v. Volkswagen of Am., Inc., 91 Fed. App’x 159, 160 (1st Cir. 2004);

see Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982) (“The federal

7 Defendants have also characterized their motion to dismiss as a motion for judgment on the pleadings.

See Fed. R. Civ. P. 12(c). However, because the Defendants have not yet filed an answer to the amended

complaint, a motion pursuant to Rule 12(c) is premature. Accordingly, the Court will treat Defendants’

motion as a motion to dismiss pursuant to 12(b)(6). See Grajales v. P.R. Ports Auth., 682 F.3d 40, 44 (1st

Cir. 2012) (noting that when “a motion for judgment on the pleadings under Federal Rule of Civil Procedure

12(c) is employed as a vehicle to test the plausibility of a complaint, it must be evaluated as if it were a

motion to dismiss under Federal Rule of Civil Procedure 12(b)(6)”).

courts have consistently rejected attempts at third-party lay representation. By law an

individual may appear in federal courts only pro se or through legal counsel.” (citations

omitted)). Moreover, “[e]very pleading, written motion, and other paper must be signed

by at least one attorney of record in the attorney's name—or by a party personally if the

party is unrepresented.” Fed. R. Civ. P. 11(a).

The complaint, as amended, lists Joseph, Patricia, and the Estate of Marie Pozniak

as Plaintiffs, and is signed only by Joseph Jurkenas.8 Although Joseph may “plead and

conduct [his] own case[] personally,” 28 U.S.C. § 1654, he is “barr[ed] . . . from

representing anyone but himself,” O'Diah, 91 Fed. App’x at 160. Because Joseph has

signed the amended complaint, he may represent himself in this matter. Patricia, however,

did not sign the amended complaint and is unable to assert her claims through Joseph’s pro

se representation on her behalf. Additionally, as referenced above, the record lacks any

evidence or assertion that Joseph has been appointed as a personal representative for the

Estate of Marie Pozniak and, even if so, whether Joseph is acting in such a capacity. See

18-C M.R.S. § 3-103 (requiring appointment of a personal representative “to acquire the

powers and undertake the duties and liabilities” of administering an estate).

In short, Joseph Jurkenas is the only plaintiff to sign the complaint, as amended. As

a pro se litigant, he cannot represent other parties in this matter. See O'Diah, 91 Fed. App’x

at 160. To the extent that Plaintiffs’ amended complaint asserts claims on behalf of Patricia

8 In subsequent filings, Joseph Jurkenas has purported to sign “for” both Patricia and the Estate.

or the Estate of Marie Pozniak, dismissal of the claims is warranted unless the parties enter

a proper appearance.

2. Plaintiffs’ Claim Under 42 U.S.C. § 1983

Defendants also contend Plaintiffs have failed to assert an actionable claim.

Plaintiffs assert their claims pursuant to 42 U.S.C. § 1083. (Complaint at 3, ECF No. 1.)

A party may seek dismissal of a claim for “failure to state a claim upon which relief

can be granted.” Fed. R. Civ. P. 12(b)(6). “In ruling on a motion to dismiss under Rule

12(b)(6), a court ‘must assume the truth of all well-plead facts and give the plaintiffs 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)). However, Federal Rule of Civil Procedure 12(b)(6) “demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal,

556 U.S. 662, 678 (2009). In evaluating the sufficiency of a complaint, therefore, a court’s

“task is to ‘first disregard conclusory allegations that merely parrot the relevant legal

standard’ and ‘then inquire whether the remaining factual allegations state a plausible,

rather than merely possible, assertion of defendants' liability.’ Dumont v. Reilly Foods Co.,

934 F.3d 35, 39-40 (1st Cir. 2019) (quoting Young v. Wells Fargo Bank, N.A., 717 F.3d

224, 231 (1st Cir. 2013)). “A self-represented plaintiff is not exempt from this framework,

but the court must construe his complaint ‘liberally’ and hold it ‘to less stringent standards

than formal pleadings drafted by lawyers.’” Waterman v. White Interior Sols., No. 2:19-

cv-00032-JDL, 2019 U.S. Dist. LEXIS 191506, at *4 (D. Me. Nov. 5, 2019) (quoting

Erickson v. Pardus, 551 U.S. 89, 94 (2007)).

“Section 1983 provides a cause of action when an individual, acting under color of

state law, deprives a person of constitutional rights.” Saldivar v. Racine, 818 F.3d 14, 18

(1st Cir. 2016); see 42 U.S.C. §1983. It does not by itself “endow plaintiffs with any

substantive rights independent of those already granted under federal law.” Clark v.

Boscher, 514 F.3d 107, 112 (1st Cir. 2008). To prevail on such a claim, therefore, “a

plaintiff must show that ‘the challenged conduct [is] attributable to a person acting under

color of state law’ and that ‘the conduct must have worked a denial of rights secured by

the Constitution or by federal law.’” Freeman v. Town of Hudson, 714 F.3d 29, 37 (1st

Cir. 2013) (quoting Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997)). “[U]nder § 1983,

local governments are responsible only for ‘their own illegal acts.’” Connick v. Thompson,

563 U.S. 51, 60 (2011) (emphasis in original) (quoting Pembaur v. Cincinnati, 475 U.S.

469, 479 (1986)). “[A]lthough a municipality may not be held liable under a theory of

respondeat superior for an employee's constitutional violation, it may be held liable when

‘execution of [the municipality's] policy or custom . . . inflicts the injury’ and is the ‘moving

force’ behind the employee's constitutional violation.” Saldivar, 818 F.3d at 20 (quoting

Monell v. Dep't of Soc. Servs., 436 U.S. 658, 694 (1978)).

As noted above, Plaintiffs’ amended complaint has been construed to assert claims

for the violation of Plaintiffs’ rights to procedural and substantive due process.

a. Procedural Due Process

“Procedural due process guarantees that a state proceeding which results in a

deprivation of property is fair. . . .” Licari v. Ferruzzi, 22 F.3d 344, 347 (1st Cir. 1994).

In other words, it “assures individuals who are threatened with the deprivation of a

significant liberty or property interest by the state notice and an opportunity to be heard ‘at

a meaningful time and in a meaningful manner.’” Ford v. Bender, 768 F.3d 15, 24 (1st

Cir. 2014) (quoting Amsden v. Moran, 904 F.2d 748, 753 (1st Cir. 1990)) A procedural

due process claim “must allege ‘that [the plaintiff] was deprived of constitutionally

protected property because of Defendants' actions, and that the deprivation occurred

without due process of law.’” Lambert v. Fiorentini, 949 F.3d 22, 28 (1st Cir. 2020)

(alteration in original) (quoting Rumford Pharmacy, Inc. v. City of E. Providence, 970 F.2d

996, 999 (1st Cir. 1992)). “The constitutional violation actionable under § 1983 is not

complete when the deprivation occurs; it is not complete unless and until the State fails to

provide due process.” Zinermon v. Burch, 494 U.S. 113, 126 (1990). Moreover, “[t]he

procedural due process inquiry ‘examine[s] the procedural safeguards built into the

statutory or administrative procedure of effecting the deprivation, and any remedies for

erroneous deprivations provided by statute or tort law.’” Lambert, 949 F.3d at 28 (quoting

Zinermon, 494 U.S. at 126 (1990)). “A procedural due process claim that does not ‘allege

the unavailability of constitutionally-adequate remedies under state law’ fails.” Id.

(quoting Rumford, 970 F.2d at 999).

In this case, Plaintiffs allege that they were deprived of their property when City

officials removed them from and prevented their return to their home on May 24, 2014.

(Attachment, ECF Nos. 1-1, 1-3, 1-4; Objection at 2-5.) As alleged, the City provided

Plaintiffs with certain “procedural safeguards,” Lambert, 949 F.3d at 28 (quoting

Zinermon, 494 U.S. at 126 (1990)), after the alleged deprivation of their property.

Under Maine law, “a municipality has the right to secure buildings that pose a

serious threat to the public health and safety” and, in certain instances, need not provide

notice “before securing the building if the threat to the public health and safety requires

prompt action.” 17 M.R.S. § 2856. The City provided Plaintiffs with a Notice of Violation

on June 12, 2014, which informed Plaintiffs that the state of their property was in violation

of various statutes, City ordinances, and building codes. (Attachment, ECF No. 8-6.) The

notice described the actions necessary to correct the alleged violations and stated that

Plaintiffs had a right to appeal the notice within thirty days pursuant to the City’s land use

code. (Id.)

Pursuant to Maine law, code enforcement officers are permitted to administer and

enforce land use law and local ordinances. 30-A M.R.S. § 4452. “[A] notice of violation

or an enforcement order by a code enforcement officer under a land use ordinance is

reviewable on appeal by the board of appeals and in turn by the Superior Court under the

Maine Rules of Civil Procedure, Rule 80B.” 30-A M.R.S. § 2691(4); see Raposa v. Town

of York, 2019 ME 29, ¶ 11, 204 A.3d 129; M.R. Civ. P. 80B. The City allows for an appeal

from a notice of violation to be taken within thirty days from the date of the notice of

violation. (Attachment, ECF No. 8-6; Motion, ECF No. 16-1.) A notice of violation “that

is not timely appealed is subject to the same preclusive effect as otherwise provided by

law.” 30-A M.R.S. § 2691(4).

Plaintiffs allege that they appealed from the notice of violation in August 2014.

(Objection at 9; see Attachment, ECF No. 10-9.) The appeal, however, was filed after the

time required by the City’s ordinance; Plaintiffs’ challenges to the contents of the notice of

violation, therefore, were precluded from review by the City or, later, by review in state

court. See 30-A M.R.S. § 2691(4). The pleadings thus establish that Plaintiffs were

provided a process to challenge the notice of violation, but Plaintiffs failed to assert timely

their rights under the process. Plaintiffs have thus failed to assert a claim based on the

notice process.

The notice of violation declaring the home a “dangerous building” was also issued

in accordance with Maine law. See 17 M.R.S. § 2851. (Attachment, ECF No. 8-6.)

Although Plaintiffs did not appeal from the notice of violation, a determination that a

building is “dangerous”9 requires a municipality to follow separate, statutory procedures.

See id. Specifically, a municipality may “adjudge a building to be a nuisance or dangerous”

after notice and hearing is provided to the property owner. Id. A property owner may

appeal a municipality’s decision to Maine’s Superior Court. 17 M.R.S. § 2852.

The record reveals that the City Council scheduled a public hearing to determine

whether Plaintiffs’ home constituted a “dangerous building.” (Attachment, ECF No. 10-

7.) The hearing was scheduled for October 14, 2014. (Objection at 9, ECF No. 10; see

Attachment, ECF No. 10-8.) Plaintiffs, however, allege that the hearing did not occur.

(Objection at 9; see Attachment, ECF No. 10-8.)

9 “To adjudge a building to be a nuisance or dangerous, the municipal officers or county commissioners

must find that the building is structurally unsafe, unstable or unsanitary; constitutes a fire hazard; is

unsuitable or improper for the use or occupancy to which it is put; constitutes a hazard to health or safety

because of inadequate maintenance, dilapidation, obsolescence or abandonment; or is otherwise dangerous

to life or property.” 17 M.R.S. § 2851(2-A).

At this stage of the proceeding, where the Court “must assume the truth of all well-

plead facts and give the Plaintiffs the benefit of all reasonable inferences therefrom,”

Blanco, 802 F. Supp. 2d at 221 (internal quotation marks omitted), because Plaintiffs have

alleged that the hearing on whether their home constituted a “dangerous building” did not

occur, Plaintiffs have alleged a claim that they were wrongfully deprived of occupying

their home without due process of law.10 As alleged, Plaintiffs were not afforded hearing

at which the City Council was to determine whether Plaintiffs’ home was “unsuitable or

improper for the use or occupancy to which it is put; constitute[d] a hazard to health or

safety because of inadequate maintenance, dilapidation, obsolescence or abandonment; or

[was] otherwise dangerous to life or property.” 17 M.R.S. § 2851(2-A).

b. Substantive Due Process

The right to substantive due process “protects individuals from state actions that are

arbitrary and capricious, run counter to the concept of ordered liberty, or appear shocking

or violative of universal standards of decency.” Ford, 768 F.3d at 23 (internal quotation

marks omitted). “In order to assert a viable substantive due process claim, a plaintiff has

10 Defendants maintain that the City should be dismissed because Plaintiffs have not alleged that the actions

of the individual defendants were the product of a municipal policy or practice. A municipality cannot be

vicariously liable for a constitutional deprivation simply because the deprivation was caused by a municipal

employee. Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir.2008) (citing Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 691 (1978)). For a municipality to be liable for a constitutional deprivation, the record must

include evidence that a municipal policy, custom, or practice caused the deprivation. Id. The applicable

standard requires a plaintiff to “identify a municipal ‘policy’ or ‘custom’ that caused the plaintiff’s injury.”

Bd. of the Cnty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997). While Plaintiffs have not explicitly alleged

that the actions of a City policy or custom, because they have alleged a basis for a § 1983 claim against

City employees, recognizing that 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), judicial economy

militates in favor of maintaining the City as a party until further development of the record regarding

whether a hearing on the “dangerous building” issue was provided.

‘to prove that [the plaintiff] suffered the deprivation of an established life, liberty, or

property interest, and that such deprivation occurred through governmental action that

shocks the conscience.’” Najas Realty, LLC v. Seekonk Water Dist., 821 F.3d 134, 145

(1st Cir. 2016) (emphasis in original) (quoting Clark v. Boscher, 514 F.3d 107, 112 (1st

Cir. 2008)). “In the context of land use disputes, ‘[s]ubstantive due process is a

constitutional cause of action that leaves the door slightly ajar for federal relief in truly

horrendous situations.’” Id. (quoting Clark, 514 F.3d at 112).

Plaintiffs have failed to allege facts that would support a finding that the deprivation

of their property “occurred through governmental action that shocks the conscience.”

Najas Realty, LLC, 821 F.3d at 145 (internal quotation marks omitted). As noted above,

“a municipality has the right to secure buildings that pose a serious threat to the public

health and safety” and may do so without notice when such a threat “requires prompt

action.” 17 M.R.S. § 2856. Plaintiffs’ filings reflect that on May 24, 2014, a fire occurred

at the home, the home was contaminated as a result of an oil spill, and that the home had

documented safety and building code violations. (Attachment, ECF Nos. 1-3, 1-4;

Objection at 3-4.) Plaintiffs’ allegations do not support a finding that the actions taken by

Defendants to secure Plaintiffs’ home on May 24 were “egregiously unacceptable,

outrageous, or conscience-shocking.” Lambert, 949 F.3d at 28 (internal quotation marks

omitted).

3. Qualified Immunity

Defendants contend that Plaintiffs’ amended complaint and its attached exhibits

“clearly establish a basis for Qualified Immunity.” (Motion at 17.)

“Qualified immunity provides government officials with ‘breathing room to make

reasonable but mistaken judgments’ by shielding officials from liability for civil damages

for actions that do not violate clearly established statutory or constitutional rights of which

a reasonable person would have known.” Gericke v. Begin, 753 F.3d 1, 5 (1st Cir. 2014)

(quoting Stanton v. Sims, 571 U.S. 3, 6 (2013)). To determine whether a defendant is

entitled to qualified immunity, a court must engage in a two-pronged analysis: “[f]irst, ‘the

court must determine whether the plaintiff’s version of the facts makes out a violation of a

protected right[,]’” and “[s]econd, the court must determine ‘whether the right at issue was

'clearly established' at the time of defendant's alleged misconduct.’” Norton v. Rodrigues,

955 F.3d 176, 184 (1st Cir. 2020) (quoting McKenney v. Mangino, 873 F.3d 75, 81 (1st

Cir. 2017). This second step is further divisible into two sub-parts. “Sub-part one requires

the plaintiff to ‘identify either controlling authority or a consensus of cases of pervasive

authority sufficient to signal to a reasonable [official] that particular conduct would violate

a constitutional right[,]’” and “[s]ub-part two requires [a court] to consider ‘whether a

reasonable [official] in the defendant's position would have known that his conduct violated

the established rule.’” Id. (quoting Morse v. Cloutier, 869 F.3d 16, 23 (1st Cir. 2017)).

“These inquiries are carried out with the understanding that qualified immunity is meant to

shield ‘all but the plainly incompetent or those who knowingly violate the law.’”

McKenney, 873 F.3d at 81 (quoting White v. Pauly, 137 S. Ct. 548, 551 (2017)).

The law requires that the City afford Plaintiffs an opportunity to be heard before

Plaintiffs were deprived of their property. Ford, 768 F.3d at 24. As alleged, a hearing in

accordance with the applicable statute was scheduled to determine whether Plaintiffs’

home constituted a “dangerous building,” but the City did not conduct the hearing.

Plaintiffs, therefore, have alleged that Defendants violated a clearly established law when

it did not conduct the hearing. Qualified immunity does not apply under the circumstances.

CONCLUSION

Based on the foregoing analysis, I

(1) clarify the Recommended Decision as set forth herein;

(2) deny Plaintiffs’ motion for leave to amend their complaint to add a claim for

wrongful death;

(3) recommend that the Court grant in part and deny in part Defendants’ motion to

dismiss as follows: dismiss the claims asserted by Plaintiffs except the claim pursuant to

42 U.S.C. § 1983 that the City of Brewer violated their procedural due process rights by

failing to hold a hearing on whether their home constituted a dangerous building, and

dismiss the procedural due process claim asserted on behalf of Patricia Jurkenas and the

Estate of Marie Pozniak, unless within 14 days of the Court’s order, Patricia and the Estate

enter a proper appearance;11 and

(4) recommend the Court dismiss as moot Defendants’ motion for judgment on the

pleadings.

NOTICE

Any objections to the order on the motion to amend or motion to strike

shall be filed within 14 days in accordance with Federal Rule of Civil

Procedure 72.

11 Because this recommendation addresses the claims addressed in the prior Recommended Decision (ECF

No. 9), the prior Recommended Decision is moot.

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 29th day of December, 2020.