MERRILL v. STATE OF MAINE

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

MARC L. MERRILL, )

)

Plaintiff, )

)

v. ) No. 2:19-cv-00391-JDL

)

STATE OF MAINE, a/k/a STATE )

POLICE OF THE STATE )

OF MAINE, et al., )

)

Defendants . )

ORDER ON MOTION TO DISMISS

Marc L. Merrill brings this case arising out of an allegedly flawed 2013 child

pornography investigation and prosecution in Maine state court. Merrill, who is

proceeding pro se, has filed a Complaint with this Court against the Maine State

Police (MSP); the Maine State Police Computer Crimes Unit (MCCU); and six MSP

and MCCU officers and employees acting in their individual and official capacities:

Robert Williams, Jason Bosco, David Armstrong, Glenn Lang, Jessica Langford,1 and

John Moran (collectively, the “Individual Defendants”), asserting claims under 42

U.S.C.A. § 1983 (West 2020), as well as Maine tort law (ECF No. 1). The Defendants

move pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) to dismiss all

of Merrill’s claims (ECF No. 25). For the reasons that follow, I grant the motion.

1 Merrill’s complaint names Langford under her former name, Jessica Miller. I refer to her using the

name “Jessica Langford.”

I. LEGAL STANDARD

A. Rule 12(b)(1)

When a defendant moves to dismiss pursuant to Rule 12(b)(1), the plaintiff

bears the burden of demonstrating that the court has jurisdiction. Aversa v. United

States, 99 F.3d 1200, 1209 (1st Cir. 1996). The moving party may use “affidavits and

other matter to support the motion,” while the plaintiff may establish the existence

of subject-matter jurisdiction through materials outside the pleadings. 5B Charles

Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1350 (3d ed., Oct.

2020 Update); see also Aversa, 99 F.3d at 1210; Hawes v. Club Ecuestre el

Comandante, 598 F.2d 698, 699 (1st Cir. 1979) (question of jurisdiction decided on

basis of answers to interrogatories, deposition statements, and an affidavit).

In this case, the Defendants have appended a document to their motion, the

Affidavit of Amy J. Oliver (ECF No. 25-2), in support of the proposition that this Court

lacks jurisdiction over Merrill’s state-law tort claims. I have taken that document

into account for that purpose.

B. Rule 12(b)(6)

The U.S. Supreme Court has stated:

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does

not need detailed factual allegations, a plaintiff’s obligation to provide

the grounds of his entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of

action will not do. Factual allegations must be enough to raise a right

to relief above the speculative level . . . .

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations and internal

punctuation omitted). This standard requires the pleading of “only enough facts to

state a claim to relief that is plausible on its face.” Id. at 570. “A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to draw

the reasonable inference that the defendant is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Determining the plausibility of a claim “is a context-specific task that requires

the reviewing court to draw on its judicial experience and common sense.” Saldivar

v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (citation and internal quotation marks

omitted). While “the plaintiff bears the burden of plausibly alleging a viable cause of

action,” Hochendoner v. Genzyme Corp., 823 F.3d 724, 730 (1st Cir. 2016), the

defendant bears the burden of demonstrating that a complaint does not state a

legally cognizable claim for which relief can be granted, see 5B Charles Alan Wright

& Arthur R. Miller, Federal Practice and Procedure § 1357 (3d ed., Oct. 2020 Update).

In ruling on a motion to dismiss under Rule 12(b)(6), a court assumes the truth

of all well-pleaded facts in the complaint and draws all reasonable inferences in favor

of the plaintiff. Román-Oliveras v. P.R. Elec. Power Auth., 655 F.3d 43, 45 (1st Cir.

2011). The First Circuit has instructed that a court addressing a Rule 12(b)(6) motion

“should begin by identifying and disregarding statements in the complaint that

merely offer legal conclusions couched as fact or threadbare recitals of the elements

of a cause of action.” Ocasio-Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir.

2011) (citation and internal punctuation omitted). “Non-conclusory factual

allegations in the complaint must then be treated as true, even if seemingly

incredible.” Id. “If that factual content, so taken, allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged, the claim

has facial plausibility.” Id. (citation and internal quotation marks omitted).

Ordinarily, in weighing a Rule 12(b)(6) motion, “a court may not consider any

documents that are outside of the complaint, or not expressly incorporated therein,

unless the motion is converted into one for summary judgment.” Alt. Energy, Inc. v.

St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). “There is, however,

a narrow exception for documents the authenticity of which are not disputed by the

parties; for official public records; for documents central to [the plaintiff’s] claim; or

for documents sufficiently referred to in the complaint.” Id. (citation and internal

quotation marks omitted).

In this case, the Defendants have submitted three documents that are central

to Merrill’s claim and sufficiently referred to in the complaint to warrant

consideration in the Rule 12(b)(6) context: (1) a redacted Affidavit and Request for

Search Warrant, which incorporates an Affidavit by Defendant Bosco (ECF No. 25-

1); (2) an Order on Defendant’s Third Motion to Suppress, State v. Merrill, Docket No.

CR-2013-234 (Me. Super. Ct. May 23, 2015), which is docketed in this case at ECF

No. 25-3; and (3) an Order on Defendant’s Motion to Dismiss for Speedy Trial

Violations, State v. Merrill, Docket No. CR-2013-234 (Me. Super. Ct. Apr. 19, 2018),

docketed at ECF No. 25-4. I have taken these documents into account as well.

Although a pro se plaintiff’s complaint is subject to “less stringent standards

than formal pleadings drafted by lawyers,” Haines v. Kerner, 404 U.S. 519, 520 (1972),

the complaint may not consist entirely of “conclusory allegations that merely parrot

the relevant legal standard,” Young v. Wells Fargo Bank, N.A., 717 F.3d 224, 231 (1st

Cir. 2013); see also Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980) (explaining

that the liberal standard applied to the pleadings of pro se plaintiffs “is not to say

that pro se plaintiffs are not required to plead basic facts sufficient to state a claim”).

II. BACKGROUND

Merrill brings a claim against all of the Defendants pursuant to 42 U.S.C.A. §

1983 for violations of the Fourth, Fifth, Eighth, and Fourteenth Amendments to the

United States Constitution (Count One); a claim against the MSP, the MCCU,

Williams, and Lang under § 1983 for failure to adequately hire, staff, and supervise

computer crimes staff (Count Two) and for failure to adequately train computer

crimes staff (Count Three); a claim against all of the Defendants for false arrest and

malicious prosecution under Maine law (Count Four); a claim against all of the

Defendants for defamation (Count Five); a claim against all of the Defendants for

intentional infliction of emotional distress (IIED) (Count Six); and a claim against all

of the Defendants for negligent infliction of emotional distress (NIED) (Count

Seven).2 The Complaint sets forth the following relevant factual allegations.3

A. The Defendants

The MSP is a political subdivision of the State of Maine and the chief law

enforcement agency of the State of Maine. The MCCU is a department within the

2 The complaint also invokes the Maine Constitution; however, Merrill does not contest the

Defendants’ characterization of Counts One through Three as § 1983 claims and Counts Four through

Seven as common-law tort claims, and I do not address any Maine constitutional claims.

3 Merrill has included legal arguments in many of the paragraphs in his recitation of the alleged

facts. ECF No. 1 ¶¶ 17, 20-21, 27-28, 35-36, 40, 47, 49, 55, 62, 64-69, 77, 88-89. I have omitted those

legal arguments from this recitation and addressed them, where appropriate, in my discussion below.

MSP that is responsible for the investigation of all state child pornography

allegations within the State of Maine. Bosco is a law enforcement officer who was

employed by the MSP or the MCCU at all relevant times and was the primary

investigator in the criminal investigation involving Merrill. Armstrong, Langford,

and Moran are law enforcement officers who were employed by the MSP and/or the

MCCU at all relevant times. Lang is a law enforcement officer who was employed by

the MSP or the MCCU at all relevant times and was the law enforcement officer in

charge of Bosco, Armstrong, and the MCCU. At all relevant times, Williams was the

Chief of the MSP and as such was responsible for the training, supervision, and

discipline of subordinate officers as well as the implementation of MSP and MCCU

practices. Williams, Lang, the MSP, and the MCCU were responsible for the training,

supervision, and hiring of employees such as Bosco, Armstrong, Langford, and Moran

and the customs, policies, and practices of the MCCU and its employees during the

relevant period.

The MCCU relies on federal funding from the Department of Justice (DOJ)

under the Internet Crimes Against Children (ICAC) Task Force designation. The

requirements for a state ICAC Task Force to receive federal grant money are detailed

in a memorandum of understanding between the Office of Juvenile Justice and

Delinquency Prevention and the Attorney General of the United States. The ICAC

Task Force must strictly adhere to training and operational standards, with

acknowledgement of liability if those standards are not met. The more arrests an

ICAC Task Force makes, the more federal funding it receives.

The MCCU uses a database clearing house (Data Base One, or DB1) that

collects and collates Internet Protocol (IP) addresses from a specialized law

enforcement program called RoundUp eMule (“RoundUp”). RoundUp is re-

engineered software from a popular freeware peer-to-peer file sharing program called

eMule or eDonkey. RoundUp was developed by entities and individuals including the

University of Massachusetts Department of Computer Science, the Georgetown

University Department of Computer Science, and former Pennsylvania State Police

Computer Crimes supervisor Robert Erdely, among others. It is used by law

enforcement to surveil and record potential IP address targets, along with their

geographic locations, who may be intentionally downloading child pornography files.

This data is then used to apply for search warrants.

B. Investigation of Merrill and Search Warrant Application

Merrill, his wife, and their two children moved to Rockland, Maine, in May

2013 after he secured employment in Camden. The family purchased land in

Rockport on which they planned to build a home, and rented a home in Rockland

while the new home was being built.

On August 27, 2013, Defendant Bosco applied for a search warrant with the

state court for Merrill’s home, supported by an affidavit. In his affidavit, Bosco stated

that the MCCU had opened a peer-to-peer child pornography investigation when

forensic analyst Langford, while signed onto the DB1 website, observed IP address

74.78.186.209 as a potential target. He stated that the “IP address was seen by law

enforcement sharing files of interest on June 24, 2013 at [4:02 a.m.]” and, “[a]t this

time[,] there were approximately 11 different files in the shared file folder with titles

indicative of child pornography.” ECF No. 25-1 at 2.

Bosco stated that DB1 monitors activity on peer-to-peer networks, which are

“designed to facilitate the sharing of electronic files between participating members

over the Internet.” Id. He added, “[t]o become a member of a peer-to-peer network,

a user installs a computer program that creates a ‘sharing folder’ on their computer,

into which they insert any electronic files that they wish to make available for other

members of the network to copy,” and that the user, “in turn, gain[s] the ability to

copy any electronic files that the other network members have made available on

their computers.” Id. Bosco stated that law enforcement agents had discovered that,

“by joining a peer-to-peer file sharing network and submitting a request for an

electronic file known to contain child pornography, as verified by the file’s hash

value,[4] they can readily identify the IP addresses of other network members who

have attempted to disseminate that particular piece of child pornography by making

it available to be copied.” Id. at 2-3. He added that the DB1 database “stores the IP

addresses that have been identified as offering electronic files known to contain child

pornography” and “identifies the general geographic area of the subscriber to whom

each IP address was assigned.” Id. at 3.

4 Bosco defined a “hash value” as “a very long series of numbers and letters . . . that is calculated by

applying a standard mathematical algorithm to the electronic data that is contained in an electronic

file[,]” explaining that “[o]nly identical electronic files will have the same hash value.” ECF No. 25-1

at 2.

Bosco added that the information from DB1 identified the internet service

provider (ISP) as Time Warner Cable (TWC). He stated that an assistant attorney

general had subpoenaed TWC requesting subscriber information associated with IP

address 74.78.186.209 at 4:02 a.m. on June 24, 2013, and had received a response

showing that this IP address was assigned to Merrill.5

Bosco stated that on August 19, 2013, he conducted research on IP address

74.78.186.209 using DB1, and that this IP address “was observed by law enforcement

sharing approximately 55 files of interest using a peer to peer file[] sharing program

called EMule.” ECF No. 25-1 at 3. He stated that, using an Excel spreadsheet, he

determined that there were “11 unique sha1’s” in the IP address history.6 Id. Bosco

searched DB1, which contains a list of sha1’s known to law enforcement as child

pornography files, and attached one of these sha1’s to his affidavit, describing it as a

still image from a child pornography video.

Bosco stated that based on his education, training, and experience, there was

probable cause to believe that a computer located in Merrill’s residence had been used

to possess and disseminate child pornography and that the residence contained

computers, related equipment, and other evidence used in the commission of those

crimes.

5 Merrill alleges that TWC’s subpoena response “was not clear as to what the subscriber record

indicated,” and that “[n]o network data logs were provided to confirm that at [4:02 a.m.] on June 24th,

the IP address belonged to” him. ECF No. 1 ¶ 30. However, Merrill does not actually allege that the

IP address was not assigned to his TWC account at that time, and indeed, that connection is implied

by several other statements in his complaint, as I discuss below.

6 Neither Bosco’s affidavit nor the parties’ filings in this case define the term “sha1,” but from the

parties’ usages of the term in context, it appears to be a particular type of hash value.

Based on Bosco’s affidavit, a Maine District Court Judge issued a warrant to

search Merrill’s residence, motor vehicles, and any persons located in the residence

at the time of the search for “[e]vidence of the crimes of dissemination of sexually

explicit material in violation of 17-A M.R.S.A. § 283 and possession of sexually explicit

material in violation of 17-A M.R.S.A. § 284,” including images of child pornography

“in any form” and “[c]omputers and digital storage media of any kind.” ECF No. 25-

1 at 1-2.

C. Merrill’s Allegations of Errors in the Bosco Affidavit

In his complaint, Merrill alleges that an IP address alone does not identify a

person and in some cases is insufficient to identify the location of suspected illegal

activity, and that “[t]here was never any evidence presented that the IP address

74.78.186.209 was downloading or attempting to access illegal files at 4:02 a.m. on

June 24, 2013.” ECF No. 1 ¶¶ 28, 32. An expert named Benjamin Birney7 analyzed

the DB1 spreadsheet created by the Defendants and concluded that the investigative

actions taken on June 24, 2013, were unsuccessful attempts to verify the existence of

certain files on a computer. ISP subscribers typically are assigned dynamic IP

addresses, meaning that IP address assignments are random and reused by ISP

computers as needed to support the network. Therefore, they can change at any time.

At the time, TWC’s policy documentation confirmed the use of dynamic IP address

assignments as the default service for internet subscribers. Subscriber records do not

7 Merrill’s complaint does not fully identify Birney—from context, I presume that he is a forensic

computer analyst that Merrill hired—or describe the source or nature of his analysis. For purposes of

resolving the Defendants’ motion to dismiss, I treat Merrill’s factual allegations as true no matter their

evidentiary source.

identify a specific person involved in illegal internet activity. They simply show the

street address where the service is being provided and the name of the person who is

paying the bill for the internet services.

With respect to Bosco’s statement that there were 55 files of interest in a

shared folder, Merrill alleges that at no time was there any evidence presented

regarding the existence of 55 files in a shared folder, nor were such files found after

seizure and forensic review. With respect to Bosco’s statement that at 4:02 a.m. on

June 24, 2013, there were 11 different files in a shared file folder with titles indicative

of child pornography, Birney concluded that “it was not accurate to state that even

one file, much less 11, was being shared at IP address 74.78.186.209 on that date.”

ECF No. 1 ¶¶ 38-39. “The file log did not contain the names of any files allegedly

being shared at IP address 74.78.186.209.” ECF No. 1 ¶ 39.

In a digital environment, a file of any type of content can have any title or file

name; therefore, a user cannot know the actual contents of a file based only on the

file name. Additionally, the eMule client does not download files in a sequential

stream of data from beginning to end; rather, it downloads files in chunks that are

then randomly assembled based on the availability of chunks from other users. It is

very unlikely that a user would know the content of a file in this partially constructed

state. Partial or incomplete downloads generally cannot be viewed or disseminated

and, therefore, a user typically does not know what the content of the file is until it

is completely downloaded.

Every file in the investigation of Merrill was documented by law enforcement’s

own DB1 logs as either 0% downloaded or partially downloaded. There weren’t any

files that were found to be 100 percent downloaded in any shared folder on Merrill’s

computer. According to Birney’s analysis and report, the mere presence of a hash

value associated with an IP address in RoundUp “does not lead to a reliable

conclusion, or even a strong probability, that a computer [associated with the] IP

address actually possesses the contraband identified by the hash value.” ECF No. 1

¶ 43.

The child pornography file that Bosco attached to his search warrant affidavit

was never found in subsequent state forensic reviews of the computer that was

eventually found to have eMule installed. Birney alleges that Bosco did not obtain

the attachment from the computer at IP address 74.78.186.209 and that it could not

be verified to exist in any complete or viewable form at that IP address. According to

Birney, Bosco used the sha1 value from a spreadsheet and then used the National

Center for Missing and Exploited Children (NCMEC) database to determine the

imagery associated with that file. Birney stated that law enforcement has the

capability through the tools in RoundUp to confirm that a particular file is in

possession of a target computer, but that they did not do so or were unable to do so in

this case. He concluded that, “without file verification, the RoundUp tool used in this

way is not a reliable indicator that a computer at the IP address possesses the

contraband indicated by the hash value in any usable form.” ECF No. 1 ¶ 51.

D. Search and Arrest

On the morning of August 28, 2013, Merrill’s wife had just returned home after

dropping off their six-year-old daughter at school when Defendants Bosco and

Armstrong knocked on the door, identifying themselves as policemen. Merrill was in

the bathroom wearing fleece pajamas, and his three-year-old son was playing in the

living room. Merrill’s wife invited the policemen inside and went to get Merrill, who

came out to speak with them. Bosco and Armstrong indicated that they were

investigating a crime and hoped that Merrill could help them. Merrill asked, “Do I

need to talk to an attorney about something?” ECF No. 1 ¶ 56. Bosco responded,

“That’s a choice that you have to make[.] I can’t make any of those decisions for you.”

Id. The police officers restricted Merrill’s movements and separated him from his

wife and son. Merrill alleges that when he was separated from his wife, the pressure

on him to give statements was amplified. The following exchange occurred:

Bosco: And I think it makes your life a lot easier in the long run. Umm.

Merrill: And you want?

Bosco: We are here to tell you, we’re not just going to go away without

finding our answers. So, it’s, I think it behooves you to help us.

Merrill: Yeah.

Bosco: And to try to figure out why this is happening.

Id. ¶ 57. Bosco continued to reiterate, “We’re not going away with no answers.” Id.

¶ 58. During the questioning, Merrill and Bosco had the following exchange:

Merrill: Can I get some clothes on?

Bosco: Yeah, sure. I gotta go with you if you’re goin’.

Merrill: Oh.

Bosco: Anywhere you go, I’m comin’ with you.

Id. ¶ 59. Bosco and Armstrong repeatedly told Merrill that they would tear his house

apart if he did not give them the information they wanted; for instance, Armstrong

stated:

I’m going to say this, I can tear this house apart, ok? I don’t want to do

that, ok? I’m personally losing my patience alright so if you want me to

do that to try to find it, because no one says it’s probably at my office.

It’s either at your office or somewhere within this premise, be it car,

whatever. So just give it to me so I don’t have to go tear everything.

Id. ¶ 60. An additional officer was called in to guard Merrill while the search and

seizure was taking place.

The police seized a total of thirteen items, including computers, laptops,

storage devices/drives, digital cameras, smart phones, and cell phones. After forensic

review, twelve of those items were found to contain nothing of evidentiary value.

The interrogation and search lasted between two and a half and three hours,

after which Merrill was handcuffed and forced to sit on his front porch. Bosco drove

Merrill to the Knox County Jail for processing, during which time he continued to

question him even after his Miranda rights were read.8 Although no warrant had

been issued for the arrest, Bosco decided to arrest him, which according to the

complaint was “for reasons that are not understood.” ECF No. 1 ¶ 72. Bosco admitted

during cross-examination in a subsequent hearing that the police typically do not

arrest suspects in these types of cases when there is no confession.

8 According to Merrill, “Bosco had two prior Miranda violations attributed to him in other cases.”

ECF No. 1 ¶ 76.

E. Forensic Analysis and Prosecution

In a forensic report dated April 25, 2013, Defendant Langford, a forensic

analyst, noted that she located “approximately 160 files in allocated space” in a

directory folder called “New Folder 2” on the computer allegedly associated with

contraband. ECF No. 1 ¶ 87. However, she did not note that New Folder 2 was set

to “hidden” or that there was no evidence that the files were ever accessed or viewed.

In a report dated May 22, 2014, Defendant Moran, another forensic analyst,

stated with respect to the same computer, “Malware scans were performed on the

evidence in this case; no evidence of malware that would have allowed unauthorized

remote access was found.” Id. ¶¶ 84-85. According to Merrill, Moran’s “own scans

did find trojans,” and Birney’s examination of the computer turned up “numerous

malware, viruses, and a RAT (Remote Access Trojan).” Id. ¶¶ 85-86. RATs allow

unauthorized remote access.

Merrill was indicted in December 2013 for possession of child pornography in

violation of 17-A M.R.S.A. § 284 (West 2020) and arraigned in February 2014.

Despite multiple requests that Knox County Assistant District Attorney Christopher

Fernald provide Merrill with state forensic reports, no reports were produced until

June 2014. Merrill moved to suppress the statements that he made after Armstrong

threatened to “tear this house apart” on Miranda grounds, and sought discovery

related to the software tools used by law enforcement to produce the information on

which the warrant application was based, including the DB1 website. Merrill also

moved for a hearing pursuant to Franks v. Delaware, 438 U.S. 154 (1978).9

Merrill’s motion to suppress, as well as his request for a Franks hearing, were

denied based largely on the affidavit and testimony of Defendant Lang. Lang

submitted an affidavit stating that the MCCU “does not utilize or enable fake file

sharing as part of the [RoundUp] program and it was not done during this

investigation.” ECF No. 1 ¶ 98. Lang repeated this assertion at the hearing on the

motion to suppress. ECF No. 1 ¶ 99. Regarding this statement, Birney concluded:

We cannot agree with [this sentence]. The eMule History spreadsheet,

which apparently documents the investigation of IP address

74.78.186.209, contains Log Type 5 entries. These entries are recorded

“[i]f actual sharing or fakeshare is enabled and we get a request for part

of a file.” ICACCops.com webpage. This is contrary to . . . Lang’s

assertion . . . .

Id. ¶ 98. Lang’s affidavit also stated:

P2P software is open source and is free of charge. This allowed Law

Enforcement officers to create unique versions of a number of common

P2P clients. These versions allowed for the automated logging of the

officer’s observation. In some cases, an officer can start the search for

contraband and the software continues to run until stopped by the

officer. All of the observations are of publicly available files.

Id. According to Birney, Lang’s final sentence was false or misleading: “[T]here is a

very high likelihood that the files ‘observed’ through the use of RoundUp eMule are

not ‘publicly available files’ because they have not been completely downloaded to be

9 A Franks hearing is required if “the defendant makes a substantial preliminary showing that a

false statement knowingly and intentionally, or with reckless disregard for the truth, was included by

the affiant in the warrant affidavit, and if the allegedly false statement is necessary to the finding of

probable cause.” United States v. D'Andrea, 648 F.3d 1, 12-13 (1st Cir. 2011) (citation and internal

quotation marks omitted).

made available for sharing,” and no files associated with Merrill’s IP address had

been more than 50% downloaded. Id.

Following an evidentiary hearing on Merrill’s motion to suppress, Maine

Superior Court Justice Daniel I. Billings suppressed certain statements that Merrill

made after his arrest on Miranda grounds. Regarding the search warrant’s validity,

Justice Billings determined that (1) the search warrant “had particularity,” was not

overbroad, and was based on probable cause; (2) “the minor issues with the drafting

of the affidavit did not make the contents misleading so as to undermine the validity

of the issuance of the warrant”; (3) “the search conducted was within the scope of the

warrant and the manner in which it was conducted was reasonable”; and (4) “[t]he

affidavit supporting the warrant established sufficient probable cause that a crime

had been committed at the location to be searched.” ECF No. 25-3 at 1-2.

On April 19, 2018, Justice Billings dismissed the case against Merrill on

speedy trial grounds, concluding that the lengthy delay in the case was attributable

to the prosecution and that further delay would prejudice Merrill’s defense,

particularly the ability of Birney to testify.

The complaint asserts that the arrest and prosecution “had profound

consequences to [Merrill’s] employment, reputation, liberty, parental rights, and

financial status.”10 ECF No. 1 ¶ 74. “He lost his job, work computer, and smart phone

10 After Merrill was released on bail following his arrest, Bosco requested that the Maine Department

of Health and Human Services (DHHS) open a case against him. Merrill hired an attorney to represent

him in the DHHS case, and after an investigation, DHHS concluded that there was no threat to the

children and dropped the case.

from which he conducted his real estate business.” Id. “He lost credibility in the local

community, . . . lost the right to be with his children without supervision for nearly 5

years,” and had to hire and pay “an attorney to defend himself [against] felony

charges.” Id.

III. DISCUSSION

A. Constitutional Claims

Construed liberally, Merrill’s complaint alleges that Bosco, Armstrong,

Langford, Moran, and Lang, in their personal capacities, violated his Fourth, Fifth,

Eighth, and Fourteenth Amendment rights, and seeks damages under 42 U.S.C.A. §

1983.11 The Defendants argue that no constitutional violation occurred and that, in

any event, they are entitled to qualified immunity for any violation, warranting the

dismissal of these claims. I agree.

The First Circuit has explained that when a defendant invokes qualified

immunity, a court must undertake a two-step analysis:

First, the court must determine whether the plaintiff’s version of the

facts makes out a violation of a protected right. Second, the court must

determine whether the right at issue was clearly established at the time

of [the] defendant’s alleged misconduct. The second step itself has 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. Sub-part two requires us to consider

whether a reasonable official in the defendant’s position would have

known that his conduct violated the established rule. These inquiries

are carried out with the understanding that qualified immunity is

11 Because “[n]o 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,” Nieves-Márquez v. Puerto Rico, 353 F.3d 108, 124

(1st Cir. 2003), I dismiss Merrill’s § 1983 claims against the MSP, the MCCU, and the six Individual

Defendants in their official capacities.

meant to shield all but the plainly incompetent or those who knowingly

violate the law.

Norton v. Rodrigues, 955 F.3d 176, 184 (1st Cir. 2020) (citations, alterations, and

internal quotation marks omitted). “Taken together, these steps normally require

that, to defeat a police officer’s qualified immunity defense, a plaintiff must identify

a case where an officer acting under similar circumstances was held to have violated

the [Constitution].” Gray v. Cummings, 917 F.3d 1, 10 (1st Cir. 2019) (quoting City

of Escondido v. Emmons, 139 S. Ct. 500, 504 (2019) (per curiam)). “Although such a

case need not arise on identical facts, it must be sufficiently analogous to make

pellucid to an objectively reasonable officer the unlawfulness of his actions.” Id.

(footnote and citations omitted); see also District of Columbia v. Wesby, 138 S. Ct. 577,

590 (2018). Additionally, “[a] circuit split does not foreclose a holding that the law

was clearly established, as long as the defendants could not reasonably believe that

[the controlling Circuit] would follow the minority approach.” Irish v. Fowler, --- F.3d

---, 2020 WL 6504296, at *10 (1st Cir. Nov. 5, 2020).

“Unless the plaintiff’s allegations state a claim of violation of clearly

established law, a defendant pleading qualified immunity is entitled to dismissal

before the commencement of discovery.” Guzmán-Rivera v. Rivera-Cruz, 98 F.3d 664,

667 (1st Cir. 1996) (quoting Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)).

1. Fourth Amendment Claims

Merrill’s complaint is fairly characterized as asserting five distinct Fourth

Amendment violations: (1) the search warrant was unsupported by probable cause,

(2) the warrant was overbroad, (3) the search was carried out in an unconstitutional

manner, (4) he was arrested without probable cause, and (5) he was subjected to

malicious prosecution.

a. Probable Cause for Search Warrant

Probable cause to issue a search warrant exists when, “given all the

circumstances set forth in the affidavit[,] there is a fair probability that contraband

or evidence of a crime will be found in a particular place.” United States v. Reiner,

500 F.3d 10, 15 (1st Cir. 2007) (quoting Illinois v. Gates, 462 U.S. 213, 238 (1983)

(alteration omitted)). As the Defendants point out, this Court does not write on a

blank slate in determining whether the Bosco affidavit established probable cause to

search Merrill’s home for the enumerated items: not only did the judge issuing the

warrant find it sufficient, but Justice Billings—viewing the warrant application in

the clearer light of the adversarial process—agreed.

However, “an officer who obtain[s] a warrant through material false

statements which resulted in an unconstitutional search may be held personally

liable for his actions under § 1983.” Jordan v. Town of Waldoboro, 943 F.3d 532, 540

(1st Cir. 2019) (alterations and quotation marks omitted). “[A] search warrant must

be voided if (1) a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the warrant affidavit; and (2)

the affidavit’s remaining content is insufficient to establish probable cause.” Id. at

540 (quoting Franks, 438 U.S. at 155-56).

Merrill argues that “Bosco purposely misrepresented” the results of the DB1

search and TWC’s “ambiguous subpoena response,” asserting that Birney “proved

DB1 logs themselves do not confirm content of files or that there was even one file

possessed by the target IP address” and that “the IP address was never confirmed to

belong to a subscriber account at Plaintiff’s home.” ECF No. 30 at 13. Merrill also

represents that Justice Billings denied his request for a Franks hearing. Justice

Billings’s decision on that request is not in the record, and it is not clear whether he

considered the same arguments that Merrill advances here. However, even if he did

not, I independently conclude that the complained-of misrepresentations and

omissions did not undermine probable cause for the search, for the following reasons.

Merrill does not dispute that (1) a DB1 search on June 24, 2013, identified IP

address 74.78.186.209 as a potential child pornography target; (2) TWC was the ISP

associated with that IP address; and (3) in response to a subpoena, TWC identified

that IP address as assigned to him. While Merrill alleges that “[t]he reply back from

TWC was not clear as to what the subscriber record indicated,” ECF No. 1 ¶ 30, he

does not explain this apparent lack of clarity. His allegation that “[n]o network data

logs were provided to confirm that at 4:02AM on June 24th, the IP address belonged

to subscriber Marc Merrill,” id., does not undermine Bosco’s representation in his

affidavit that TWC identified the IP address at issue as assigned to Merrill. Indeed,

the complaint elsewhere alleges that such subscriber records “merely show the street

address of where the service is being provided, and the name of the person who is

paying the bill.” Id. ¶ 35.

Moreover, as the Defendants correctly observe, the presence on Merrill’s

computer of at least partially downloaded files with hash values associated with child

pornography is implied by several allegations in Merrill’s Complaint. Merrill alleges,

for example, that (1) “[t]here was never any evidence presented that IP Address

74.78.186.209 was downloading or attempting to access illegal files at 4:02AM EST

on June 24th, 2013,” ECF No. 1 ¶ 32 (emphasis added); (2) Birney “concluded that the

mere presence of a hash value associated with an IP address in RoundUp does not

lead to a reliable conclusion, or even a strong probability, that a computer at the IP

address actually possesses the contraband identified by the hash value,” id. ¶ 43; (3)

“every file in this case was documented by law enforcement’s own DB1 logs as either

0% downloaded or partially downloaded,” id. ¶ 44; and (4) “[t]here was not one file in

this case that was 100% downloaded in a shared folder,” id. In short, even taking

Merrill’s allegations as true, Bosco’s affidavit established a connection between an IP

address associated with Merrill, and the partial download of files with hash values

associated with child pornography. The fact that the files would not necessarily have

been viewable, nor their contents known to the end user, in this partial state did not

negate that connection or undermine probable cause.

Merrill notes that, in United States v. Falso, 544 F.3d 110 (2d Cir. 2008), the

United States Court of Appeals for the Second Circuit held that a warrant to search

a defendant’s home for evidence of child pornography was unsupported by probable

cause when it alleged only that it “‘appear[ed]’” that the defendant had “‘gained access

or attempted to gain access’” to a child pornography website. ECF No. 1 ¶ 27 (quoting

Falso, 544 F.3d at 121 (emphasis omitted)). Falso is distinguishable in that the

affidavit submitted in support of the requested warrant to search and seize evidence

of child pornography from the defendant’s home lacked any allegations (1) that the

defendant had “gained access” to the specific child pornography website at issue,

“much less that he was a member or subscriber of any child-pornography site,” or (2)

that would “support an inference that the sole or principal purpose of the [web site at

issue] was the viewing and sharing of child pornography, much less that images of

child pornography were downloadable from the site.” Falso, 544 F.3d at 124. The

court noted that “the absence of membership” in a child-pornography website “would

not be dispositive if other factors—such as evidence that the defendant otherwise

downloaded illegal images—were present.” Id. at 120. The undisputed facts

contained in Bosco’s affidavit here, by contrast, were sufficient to support an

inference that partially downloaded files with hash values associated with child

pornography were present, at least to the probable cause standard.

Merrill also points to an amicus brief filed in United States v. Bosyk, 933 F.3d

319 (4th Cir. 2019), in which the Electronic Frontier Foundation urged the Fourth

Circuit to adopt the Second Circuit’s approach, arguing that evidence that an IP

address accesses or attempts to access a randomized URL from a file-sharing website

that allegedly contains contraband is insufficient to establish probable cause to

search a suspect’s home or electronic devices. But the Fourth Circuit expressly

rejected that proposition, stating that “a reasonable inference that someone using

[the defendant’s] IP address clicked [a] link knowing that it contained child

pornography” made it “fairly probable that criminal evidence would have been found

at [the defendant’s] address.” Bosyk, 933 F.3d at 325. The same is true here.

As the Defendants argue, even if these facts ultimately were insufficient to

support a conviction, and even if Bosco’s affidavit had accurately and fully described

the incompleteness and nature of the files that he had observed as having been

partially downloaded at Merrill’s home, the uncontested facts in Bosco’s affidavit

were sufficient to establish a fair probability that contraband—namely, evidence of

the crimes of dissemination of sexually explicit material in violation of 17-A M.R.S.A.

§ 283 or possession of sexually explicit material in violation of 17-A M.R.S.A. § 284—

would be found in Merrill’s home.12

Accordingly, Merrill fails to state a claim that Bosco’s alleged

misrepresentations and omissions undermined probable cause for the issuance of the

warrant to search his home.

b. Overbreadth of Search Warrant

To the extent that Merrill argues that the scope of the warrant was overbroad,

Justice Billings found otherwise, and I agree. Merrill notes that “[w]hen a warrant

12 “A person is guilty of dissemination of sexually explicit material,” a Class C crime, “if . . . the person

intentionally or knowingly disseminates or possesses with intent to disseminate any book, magazine,

newspaper, print, negative, slide, motion picture, videotape, computer data file or other mechanically,

electronically or chemically reproduced visual image or material that depicts any person who has not

in fact attained 16 years of age who the person knows or has reason to know is a person under 16 years

of age engaging in sexually explicit conduct, except that it is not a violation of this paragraph if the

person depicted is 14 or 15 years of age and the person is less than 5 years older than the person

depicted.” 17-A M.R.S.A. § 283(1)(A) (West 2020). “A person is guilty of possession of sexually explicit

material,” a Class D crime, “if that person . . . [i]ntentionally or knowingly transports, exhibits,

purchases, possesses or accesses with intent to view any book, magazine, newspaper, print, negative,

slide, motion picture, computer data file, videotape or other mechanically, electronically or chemically

reproduced visual image or material that the person knows or should know depicts another person

engaging in sexually explicit conduct, and . . . [t]he other person has not in fact attained 16 years of

age; or . . . [t]he person knows or has reason to know that the other person has not attained 16 years

of age,” unless “the person depicted is 14 or 15 years of age and the person is less than 5 years older

than the person depicted.” Id. § 284(1)(A).

fails ‘to describe with any particularity the items to be seized, the warrant is

indistinguishable from the general warrants repeatedly held [. . .] to be

unconstitutional.’” ECF No. 1 ¶ 68 (quoting United States v. Kow, 58 F.3d 423, 427

(9th Cir. 1995)). Merrill complains that, in this case, the search warrant used the

language “in any form” and “of any kind” in detailing the items to be seized. However,

the search warrant authorized the seizure only of images, records, and evidence “in

any form” pertaining to child pornography, computers, digital storage media, camera

equipment, and storage media “of any kind,” and records “in any form” evidencing

occupancy or ownership of the premises to be searched or ownership or use of the

computer equipment and other evidence to be seized. ECF No. 25-1 at 1-2. The

search warrant was sufficiently tailored to the circumstances.

In the alternative, the Defendants are entitled to qualified immunity. Merrill

identifies no controlling Supreme Court or First Circuit authority for the proposition

that the language at issue is overbroad, instead relying on inapposite cases from other

jurisdictions. See United States v. Griffith, 867 F.3d 1265 (D.C. Cir. 2017)); Millender

v. County of Los Angeles, 620 F.3d 1016 (9th Cir. 2010), rev’d sub nom. Messerschmidt

v. Millender, 565 U.S. 535 (2012); United States v. Hunter, 13 F. Supp. 2d 574 (D. Vt.

1998). These cases do not represent “a consensus of cases of pervasive authority

sufficient to signal to a reasonable” officer in Bosco’s or Armstrong’s shoes that his

conduct “would violate a constitutional right.” Rodrigues, 955 F.3d at 184. Indeed,

Millender was reversed by the Supreme Court, which concluded that the officers were

entitled to qualified immunity, see Messerschmidt, 565 U.S. at 539, 556, and Hunter

and Griffith are distinguishable.13

c. Reasonableness of Search Warrant’s Execution

Merrill next challenges the manner in which the warrant was executed,

arguing that Bosco and Armstrong engaged in “a concerted and deliberate effort to

get [him] to confess to a crime.” ECF No. 1 ¶ 55. He alleges, for example, that Bosco

told him that the police would not go away without answers; that Bosco and

Armstrong, with the aid of a third officer who was called in, restricted his movements

and separated him from his family; and that their tone was sometimes aggressive,

for example, threatening to tear the house apart if he did not disclose the location of

a laptop.

“The Fourth Amendment prohibits ‘unreasonable searches and seizures.’”

United States v. McCarty, 475 F.3d 39, 43 (1st Cir. 2007) (quoting U.S. Const. amend.

IV). “Even a search conducted pursuant to a warrant may be ‘unreasonable’ given

the manner in which the search has been conducted.” Id. The Fourth Amendment’s

“general touchstone of reasonableness” guides an assessment of whether the “method

of execution of the warrant” is constitutional. United States v. Ramirez, 523 U.S. 65,

71 (1998). In assessing reasonableness, the court “must assess the totality of the

circumstances, including ‘the scope of the particular intrusion, the manner in which

13 In Hunter, the breadth of the warrant was problematic because it involved a search of an attorney’s

records, which contained confidential and privileged material. 13 F. Supp. 2d at 578, 584. Griffith

concerned a warrant to seize all cell phones and other electronic devices in the context of alleged

possession of a firearm by a convicted felon. The warrant was determined to be overbroad because it

allowed the seizure of any electronic device in the defendant’s home, regardless of the device’s

ownership. 867 F.3d at 1268, 1276. Here, by contrast, the alleged crime itself was linked only to the

home, and not yet to a specific person living there.

it is conducted, the justification for initiating it, and the place in which it is

conducted.’” United States v. Cofield, 391 F.3d 334, 336 (1st Cir. 2004) (quoting Bell

v. Wolfish, 441 U.S. 520, 559 (1979)).

Again, in undertaking this exercise, I do not write on a blank slate. While

Justice Billings found that the officers’ interrogation became custodial when

Armstrong threatened to tear the house apart, warranting the suppression of all of

Merrill’s statements from that point until he was read his Miranda rights, he

separately concluded that “[t]he search conducted was within the scope of the warrant

and the manner in which it was conducted was reasonable.” ECF No. 25-3 at 1-2.

Bosco and Armstrong arrived during daylight hours, identified themselves as

police officers, were invited into the home by Merrill’s wife, and completed their

search in a matter of hours. That Merrill’s movements were restricted and that the

officers at times took an aggressive and threatening tone did not render the manner

of the search as a whole unreasonable. Taking the complaint’s factual allegations as

true, the search did not violate the Fourth Amendment, and even if it did, Bosco and

Armstrong are entitled to qualified immunity.

d. Probable Cause for Arrest

Merrill further contends that he was arrested without probable cause in

violation of his Fourth Amendment rights, stating that Bosco decided to arrest him

“for reasons that are not understood.” ECF No. 1 ¶ 72. He alleges that Bosco

admitted during cross-examination during a subsequent hearing on a motion to

suppress that the police typically do not arrest suspects in these types of cases when

there is no confession, and that Justice Billings “agree[d]” that there was “no reason

to make an arrest in this case,” id. ¶ 73, stating, in his order dismissing the case on

speedy trial grounds, “If the perceived risk to the Defendant’s children was an actual

jeopardy, the State has other ways to seek protection for the children other than a

bail order,” ECF No. 25-4 at 4 n.1.14 Merrill asserts that, even after a three-hour

interrogation during which Miranda violations were committed, officers remained

“unclear as to who or what was responsible for the alleged contraband” and, thus,

lacked probable cause to arrest him. ECF No. 30 at 11.

Probable cause to arrest “exists when an officer, acting upon apparently

trustworthy information, reasonably can conclude that a crime has been or is about

to be committed and that the suspect is implicated in its commission.” United States

v. Flores, 888 F.3d 537, 543 (1st Cir. 2018) (internal quotation marks omitted).

“Probable cause must be assessed on the basis of the totality of the circumstances.”

Id. “Probable cause is not a high bar,” and “requires only a probability or substantial

chance of criminal activity, not an actual showing of such activity.” Wesby, 138 S. Ct.

at 586 (citations and internal quotation marks omitted). The test of whether probable

cause exists is an objective one: “[A]n arresting officer’s state of mind (except for the

facts that he knows) is irrelevant to the existence of probable cause.” Devenpeck v.

Alford, 543 U.S. 146, 153 (2004). “[T]he fact that the officer does not have the state

of mind which is hypothecated by the reasons which provide the legal justification for

14 I have corrected the plaintiff’s misquotation of Justice Billings’s speedy trial order.

the officer’s action does not invalidate the action taken as long as the circumstances,

viewed objectively, justify that action.” Id. (internal quotation marks omitted).

As the Defendants correctly point out, Justice Billings did not agree that there

was no probable cause to arrest Merrill. Rather, he dismissed the case for speedy

trial violations, observing:

If the State is going to choose to make an arrest and bring charges, they

need to have the resources to prosecute such cases in a timely fashion.

The State could have chosen to delay this prosecution until after the

forensic evaluation was completed, as is often done in these cases.

ECF No. 25-4 at 4. The sentence highlighted by Merrill appears in a footnote to the

second sentence: “If the perceived risk to the Defendant’s children was an actual

jeopardy, the State has other ways to seek protection for the children other than a

bail order.” Id. at 4 n.1. In context, this remark bore on the timing of the arrest and

prosecution, not on a lack of probable cause to arrest Merrill. Additionally, although

the Defendants argue that “the fact that an IP address registered to [Merrill] at

[Merrill’s] home was identified as sharing files known to contain child pornography

is itself sufficient to support an arrest for possession of child pornography,” they do

not cite to any authority in support of that proposition. ECF No. 25 at 24.

Nevertheless, for the reasons that follow, I conclude that probable cause to arrest

Merrill was at least arguable based on his own version of events.

Accepting, as I must, the well-pleaded facts of the Complaint and drawing all

reasonable inferences therefrom, Bosco did not have any more information at the

conclusion of his interrogation that Merrill had committed any child pornography

crimes than he had at its inception. To the contrary, he possessed additional

information that Merrill was not the only resident of the home or the only person who

potentially had access to the computer suspected of downloading child pornography.

Yet, on similar facts, the United States Court of Appeals for the Sixth Circuit recently

concluded that there was probable cause to arrest a suspect for the promotion of the

sexual performance of a minor based on evidence that an unlawful video had been

uploaded through his router. See Jones v. Clark Cty., 959 F.3d 748, 757 (6th Cir.

2020).

In Jones, as here, officers had secured a search warrant and, at the point of

arrest, knew that the suspect “owned the router associated with the illegal download.”

Id. They learned only later that the suspect “was alone the night of the download,

[and] that his router was password-protected.” Id. Nonetheless, the court held, “[t]he

fact that [the suspect] owned the router that [police] records indicated was used to

upload child pornography and that the router was located in [the suspect’s]

apartment could warrant a prudent man in believing that [the suspect] had

committed or was committing an offense.” Id. at 758 (internal quotation marks

omitted). The court elaborated: “Notwithstanding that the charges against [the

suspect] were eventually dismissed, it is reasonable to think that because an

individual owns a router that was indisputably used to upload child pornography,

that individual may have been the one to have uploaded the unlawful material.” Id.

Similarly, in this case, when Bosco arrested Merrill, he knew that a computer

using an IP address assigned to Merrill had at least partially downloaded child

pornography. Although in this case another adult was in the home at the time of the

search, a probable cause determination “does not require the fine resolution of

conflicting evidence that a reasonable-doubt or even a preponderance standard

demands, and credibility determinations are seldom crucial in deciding whether the

evidence supports a reasonable belief in guilt.” Gerstein v. Pugh, 420 U.S. 103, 121

(1975); cf. Maryland v. Pringle, 540 U.S. 366, 372 (2003) (“We think it an entirely

reasonable inference . . . that any or all three of the occupants [of a vehicle] had

knowledge of, and exercised dominion and control over, the cocaine [found in the

vehicle]. Thus, a reasonable officer could conclude that there was probable cause to

believe [one of the three occupants] committed the crime of possession of cocaine,

either solely or jointly.”). Additionally, the TWC subscription that was assigned the

IP address at the relevant time was in Merrill’s name, not his wife’s.

Moreover, I need not decide whether Bosco definitively had probable cause to

arrest Merrill. The Supreme Court has held that courts have discretion to bypass the

first prong of the qualified immunity analysis (whether there has been an underlying

constitutional violation) and skip to the clearly-established prong, see Pearson v.

Callahan, 555 U.S. 223, 236 (2009), and I exercise that discretion here. Merrill does

not identify “either controlling authority or a consensus of cases of pervasive

authority sufficient to signal to a reasonable” officer in Bosco’s shoes that his conduct

“would violate a constitutional right.” Rodrigues, 955 F.3d at 184 (internal quotation

marks omitted).

Accordingly, Bosco is entitled to qualified immunity with respect to the claim

that he arrested Merrill without probable cause.

e. Malicious Prosecution

Merrill also makes a claim of malicious prosecution predicated on the alleged

failure of Moran and Langford to provide certain allegedly exculpatory evidence to

the prosecutor, as well as Lang’s alleged misstatements regarding MCCU’s use of

honeypotting (that is, the fake sharing or holding out of illicit files in order to lure

people seeking child pornography) and the public availability of the files observed

being downloaded at Merrill’s IP address.

To establish a claim of “malicious prosecution in violation of the Fourth

Amendment,” a plaintiff must show that the defendant “(1) caused (2) a seizure of

[the plaintiff] pursuant to legal process unsupported by probable cause, and (3)

criminal proceedings terminated in [the plaintiff’s] favor.” Hernandez-Cuevas v.

Taylor, 836 F.3d 116, 124 (1st Cir. 2016) (internal quotation marks omitted). To

establish causation, a plaintiff must “demonstrate that law enforcement officers were

responsible for his continued, unreasonable pretrial detention.” Id. at 125 (internal

quotation marks omitted). “Such responsibility may be established by showing that

the officers made, influenced, or participated in the decision to prosecute by, for

example, (1) lying to or misleading the prosecutors; (2) failing to

disclose exculpatory evidence; or (3) unduly pressuring the prosecutor to seek the

indictment.” Id. (citations, alterations, and internal quotation marks omitted).

Merrill argues that Langford and Moran failed to give the prosecutor “accurate

information that was clearly exculpatory, and most certainly influenced his decision

to continue the prosecution.” ECF No. 1 ¶ 89. But Merrill does not explain how or

why any of the information about the hidden folder or malware was material to the

continued prosecution, or why Langford’s and Moran’s alleged failure to disclose it

caused the prosecution to continue. To the contrary, the Complaint indicates that the

prosecution continued even after the prosecutor became aware of the results of

Birney’s forensic analysis, until it was dismissed on speedy-trial grounds. Similarly,

the complaint does not sufficiently allege that Lang’s affidavit or testimony

impermissibly contributed to Merrill’s prosecution. Justice Billings appears to have

been aware of Birney’s disagreements with Lang’s characterizations, and Merrill does

not explain why or how that court was misled.

Moreover, there is good reason to be skeptical that these statements would be

material to the prosecution. First, regarding Langford’s report, as the Defendants

point out, “a hidden directory is in no way unusual in a child pornography case.” ECF

No. 25 at 26. And the fact that the files were not accessed or viewed would not

preclude prosecution for a crime of possession. See 17-A M.R.S.A. §§ 283-284.

Second, contrary to Merrill’s implication, Moran’s reports that the computer

contained “trojans” but that there was “no evidence of malware that would have

allowed unauthorized remote access,” ECF No. 1 ¶ 85, are not internally inconsistent.

After all, the obvious alternative explanation is that Moran discovered trojan horse

viruses that would not have allowed unauthorized remote access. Merrill points to

Birney’s determination that the computer had at least one Remote Access Trojan, but

does not suggest that there is only one acceptable method of forensic computer-

security analysis; indeed, this seems like a quintessential dispute between expert

opinions. In short, even if Birney would have prevailed in an eventual battle of the

experts, Merrill does not explain how or why Moran knew or should have known that

his own analysis was wrong.

Finally, Merrill does not explain, and it is difficult to see, why Lang’s

statements about the MCCU’s use of honeypotting and the public availability of the

files observed via RoundUp—even assuming that those statements were inaccurate—

would have had any bearing on the prosecution. Regarding honeypotting, Merrill

does not contest the essential historical facts underlying probable cause: that an IP

address associated with his name and address was observed to have partially

downloaded files with hash values of known child pornography files, albeit in

incomplete and unviewable chunks. Whether those download requests were for “real”

contraband or for honeypot files would not have changed these basic facts. As for the

“public availab[ility]” of the files, Birney’s analysis of Lang’s statement suggests that

his point of disagreement with Lang was about Lang’s use of the term “available.”

But Merrill’s prosecution was not predicated on his having shared illegal files;

instead, the prosecution was focused on his alleged downloading and possession of

the files. Birney’s analysis does not contradict the material fact in Lang’s statement:

that the files—or, to be precise, unviewable chunks of them—were observed being

downloaded at Merrill’s IP address.

Accordingly, Merrill fails to state a claim against Langford or Moran for

malicious prosecution.15

15 In the alternative, Langford, Moran, and Lang are entitled to qualified immunity on this claim.

Again, while the Defendants raised this issue in their motion, Merrill addressed it only in passing in

2. Fifth Amendment Claim

Merrill alleges that Bosco and Armstrong violated his Fifth Amendment due

process rights, a claim that he ties to the Miranda violations found by Justice Billings.

“The basic due process constraint, where substance and not procedure is

involved, is against behavior so extreme as to shock the conscience.” Hasenfus v.

LaJeunesse, 175 F.3d 68, 72 (1st Cir. 1999) (internal quotation marks omitted).

“Outside of a few narrow categories, like the safeguarding of prisoners who have been

wholly disabled from self-protection, this means conduct that is truly outrageous,

uncivilized, and intolerable.” Id.

The allegations in Merrill’s Complaint do not suffice to demonstrate behavior

so extreme as to shock the conscience. Bosco and Armstrong were invited into

Merrill’s home by his wife during the daytime and remained for two-and-a-half to

three hours. Merrill does not allege that Bosco or Armstrong prevented him from

contacting an attorney when he inquired whether he needed one. The fact that

Merrill’s movement was sufficiently restricted, and the officers’ tone sufficiently

threatening, to amount to a custodial interrogation in the absence of Miranda

warnings does not demonstrate behavior so extreme as to shock the conscience. And,

for reasons I have already explained, Justice Billings’s order suppressing certain

statements does not supply the predicate for such a finding. Finally, Merrill’s

allegation that Bosco was found in two prior cases to have violated other defendants’

his response, and cited no caselaw in support of his argument. He therefore has failed to carry his

burden to identify sufficient authority “to signal to a reasonable” officer in these Defendants’ shoes

that his or her conduct “would violate a constitutional right.” Rodrigues, 955 F.3d at 184.

Miranda rights is concerning, but does not render his conduct on the day in

question—as described by the complaint—so extreme as to shock the conscience.

Thus, Merrill’s complaint does not state a claim of a Fifth Amendment violation.

3. Eighth Amendment Claim

Merrill next alleges that the Defendants violated his Eighth Amendment right

“to be free from ‘cruel and unusual punishments.’” ECF No. 1 ¶ 110. He argues that

“[t]he reality is enduring a five[-]year prosecution with court ordered isolation from

your own children, loss of employment, and limited access to public places is ‘cruel

and unusual’ for a citizen who had no prior convictions or arrests.” ECF No. 30 at 3.

However, the Eighth Amendment pertains to punishments inflicted following a

person’s conviction of a crime. See, e.g., Wilson v. Seiter, 501 U.S. 294, 296-97 (1991)

(noting that the Eighth Amendment “prohibits the infliction of

‘cruel and unusual punishments’ on those convicted of crimes.”); Ingraham v. Wright,

430 U.S. 651, 671 n.40 (1977) (“[T]he State does not acquire the power to punish with

which the Eighth Amendment is concerned until after it has secured a formal

adjudication of guilt.”). Because Merrill does not allege that he was convicted of a

crime, he fails to state a claim of cruel and unusual punishment in violation of his

Eighth Amendment rights. Thus, the Defendants are entitled to the dismissal of the

Eighth Amendment claim.

4. Fourteenth Amendment Claim

Merrill generally alleges that the defendants violated his “procedural and

substantive due process rights” under the Fourteenth Amendment. ECF No. 1 ¶ 110.

The Defendants construe this claim to implicate Brady v. Maryland, 373 U.S. 83

(1963), a fair characterization that Merrill does not dispute.16

To state such a claim, a plaintiff must allege, inter alia, that he or she was

convicted of a crime. See, e.g., Drumgold v. Callahan, 707 F.3d 28, 48 (1st Cir. 2013)

(“To recover damages under § 1983, Drumgold must show more than

a Brady violation. He also must demonstrate by a preponderance of the evidence a

causal link between the Brady violation and his conviction.”) (citations omitted).

Merrill makes no such allegation. His complaint therefore fails to state a Fourteenth

Amendment claim, entitling the Defendants to the dismissal of this claim.

B. Counts Two and Three: Supervisory Liability

As with Merrill’s § 1983 claims in Count One, the MSP, the MCCU, and

Williams and Lang in their official capacities are entitled to dismissal of Counts Two

and Three against them. They are not “persons” who may be sued pursuant to § 1983.

See, e.g., Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989) (“[N]either a State

nor its officials acting in their official capacities are ‘persons’ under § 1983.”); Nieves-

Márquez, 353 F.3d at 124. Williams and Lang, in their personal capacities, also seek

16 While the Fourteenth Amendment Brady claim and the Fourth Amendment malicious prosecution

claim both implicate Langford’s and Moran’s alleged failure to disclose evidence to the prosecutor, the

two claims are distinct. See Solomon v. Dookhan, No. 13-10208-GAO, 2014 WL 317202, at *7 (D. Mass.

Jan. 27, 2014) (“Even where Brady is not implicated, state actors nevertheless violate an accused’s due

process rights when they engage in a deliberate deception.”) (internal quotation marks omitted).

to dismiss the supervisory liability claims on the basis that Merrill’s complaint fails

to allege sufficient personal involvement. I agree.

“Supervisory personnel are liable under § 1983, upon a showing of a

constitutional violation, when: (1) the supervisor’s conduct or inaction amounts to

either deliberate, reckless or callous indifference to the constitutional rights of others,

and (2) an affirmative link exists between the street-level constitutional violation and

the acts or omissions of the supervisory officials.” Comfort v. Town of Pittsfield, 924

F. Supp. 1219, 1231 (D. Me. 1996). “An important factor in making the determination

of liability is whether the official was put on some kind of notice of the alleged

violations, for one cannot make a ‘deliberate’ or ‘conscious’ choice to act or not to act

unless confronted with a problem that requires the taking of affirmative steps.”

Lipsett v. Univ. of P.R., 864 F.2d 881, 902 (1st Cir. 1988) (citation omitted). “The

showing of causation must be a strong one, as that requirement contemplates proof

that the supervisor’s conduct led inexorably to the constitutional violation.” Ramírez-

Lluveras v. Rivera-Merced, 759 F.3d 10, 19-20 (1st Cir. 2014) (internal quotation

marks omitted).

Merrill argues that his complaint demonstrates how and why Williams and

Lang were directly involved: (1) they were the Commanding Officers (COs) of the

MSP and the MCCU, respectively; (2) their decisions to hire and train personnel,

follow correct law enforcement protocols/standards, and undertake criminal

investigations, which led to the alleged constitutional harms on which the complaint

is based, begin and end with them and took place under their watch; and (3) if they

were not sufficiently involved, there is negligence and improper supervision with

respect to adherence to MSP/MCCU standards, federally funded ICAC Task Force

requirements (e.g., proper training and investigation protocols), and general law

enforcement requirements with respect to the constitutional rights of citizens.

Merrill points out that a significant part of his complaint “is rooted in violations of

constitutional rights, due to egregious negligence, non-adherence to ICAC standards,

poor judg[]ment, false and perjured affidavits/testimony, [and] improper training of

subordinate police officers under their command,” for which he contends Williams

and Lang are personally and professionally liable. ECF No. 30 at 10.

At the end of the day, however, the law requires Merrill to demonstrate an

affirmative link between the supervisory defendants and the alleged constitutional

violations. Merrill’s complaint does not succeed: “These are exactly the sort of

‘unadorned, the-defendant-unlawfully-harmed-me accusations’ that both [the First

Circuit] and the Supreme Court have found insufficient” to state a claim

of supervisory liability for purposes of section 1983. Feliciano-Hernández v. Pereira-

Castillo, 663 F.3d 527, 534 (1st Cir. 2011) (quoting Iqbal, 556 U.S. at 678 (alteration

omitted)); see also, e.g., Johnson v. City of Biddeford, 2:17-cv-00264-JDL, 2018 WL

1173428, at *4 (D. Me. Mar. 6, 2018) (“[The plaintiff’s] allegations ask the Court to

infer [supervisory] liability from a conclusory allegation of a violated policy, and are

thus insufficient to state a claim pursuant to § 1983.”).

Williams and Lang, accordingly, are entitled to the dismissal of Counts Two

and Three against them.

C. State-Law Claims

The Defendants next contend that Merrill’s state-law claims for false arrest

and malicious prosecution (Count Four), defamation (Count Five), IIED (Count Six),

and NIED (Count Seven)—which he brings against all the Defendants—must be

dismissed because he failed to serve the notice of claim required by the Maine Tort

Claims Act (“MTCA”), 14 M.R.S.A. §§ 8101-8118 (West 2020), therefore depriving the

Court of subject-matter jurisdiction to adjudicate those claims. The Defendants are

correct.

When tort claims are asserted against Maine governmental entities and

employees, the MTCA requires that the claimant substantially comply with certain

“notice requirements” before bringing a civil action in court. 14 M.R.S.A. § 8107(1),

(4); Darling v. Augusta Mental Health Inst., 535 A.2d 421, 430 (Me. 1987) (noting that

the MTCA’s notice requirements pertain to suits against both government entities

and employees). The MTCA provides, in relevant part:

Within 180 days after any claim or cause of action permitted by this

chapter accrues, or at a later time within the limits of section 8110, when

a claimant shows good cause why notice could not have reasonably been

filed within the 180-day limit, a claimant or a claimant’s personal

representative or attorney shall file a written notice containing:

A. The name and address of the claimant, and the name and

address of the claimant’s attorney or other representative, if any;

B. A concise statement of the basis of the claim, including the

date, time, place and circumstances of the act, omission or

occurrence complained of;

C. The name and address of any governmental employee

involved, if known;

D. A concise statement of the nature and extent of the injury

claimed to have been suffered; and

E. A statement of the amount of monetary damages claimed.

14 M.R.S.A. § 8107(1) (Westlaw through Sept. 18, 2019).17 Absent compliance with

the MTCA’s notice of claim provisions, this Court lacks jurisdiction to entertain

Merrill’s tort claims against any of the Defendants. See, e.g., Cataldo v. U.S. Dep’t of

Justice, No. 99-264-B-C, 2000 WL 760960, at *4 (D. Me. May 15, 2000).

The last of Merrill’s claims accrued in April 2018, when the criminal charges

against him were dismissed on speedy trial grounds. See Heck v. Humphrey, 512 U.S.

477, 489 (1994) (“[A] cause of action for malicious prosecution does not accrue until

the criminal proceedings have terminated in the plaintiff’s favor.”). Therefore, he had

until October 2018 to file a notice of claim. Merrill neither alleges in his complaint

that he complied with this requirement nor contests the Defendants’ assertion that

he did not. Indeed, Oliver, a custodian of all notices of tort claims filed with the Maine

Office of the Attorney General, found no record of a notice of claim filed by Merrill

during the period from the beginning of 2014 through January 17, 2020.

Merrill argues, however, that because the “[t]he common law tort claims

emerge from the same operative facts as the Section 1983 claims,” allowing this Court

to exercise supplemental jurisdiction over them, and “the Law Court has interpreted

the MTCA notice and limitations requirements as not applying to a Section 1983

17 The MTCA’s 180-day limit has recently been extended to allow a claimant 365 days within which

to file the required notice, but the amendment is applicable only to causes of action accruing on or

after January 1, 2020. See P.L. 2019, ch. 214, § 1 (effective Sept. 19, 2019). Because Merrill’s claims

accrued before then, the amendment is not relevant to this case.

claim,” the MTCA requirements likewise should not “apply to the common law tort

claims arising out of the same nucleus of operative facts.” ECF No. 30 at 2 (citing

Mueller v. Penobscot Valley Hosp., 538 A.2d 294 (Me. 1988)).

As the Defendants rejoin, Mueller does not salvage Merrill’s tort claims. On

the contrary, the Law Court has held that summary judgment should enter in favor

of defendants on a plaintiff’s tort claims where the plaintiff has failed to comply with

the notice of claim requirement of 14 M.R.S.A. § 8107. See Mueller, 538 A.2d at 297.

Because this Court lacks jurisdiction to adjudicate Counts Four through

Seven, those claims are dismissed pursuant to Rule 12(b)(1).

IV. CONCLUSION

For the foregoing reasons, it is ORDERED that the Defendants’ Motion to

Dismiss Complaint (ECF No. 25) is GRANTED and the complaint (ECF No. 1) is

DISMISSED.

SO ORDERED.

Dated: November 25, 2020

/s/ Jon D. Levy

CHIEF U.S. DISTRICT JUDGE