BROWN v. CUMBERLAND COUNTY

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

JADEN BROWN, )

)

Plaintiff, )

)

v. ) Docket No. 2:20-cv-00478-NT

)

CUMBERLAND COUNTY, et al., )

)

Defendants. )

ORDER ON DEFENDANTS’ MOTION TO DISMISS

Plaintiff Jaden Brown alleges that the Defendants1 violated her rights under

the U.S. Constitution and Maine law when they handcuffed her when she was thirty-

five weeks pregnant and when officers were present in the hospital delivery room

when she gave birth to her child. The Defendants have moved to dismiss all claims

(ECF No. 8). For the reasons set forth below, the Defendants’ motion is GRANTED

IN PART and DENIED IN PART.

BACKGROUND2

In July of 2018, Ms. Brown—who had an outstanding warrant of arrest for a

probation violation—turned herself in at the Cumberland County Jail (“CCJ”).

Compl. ¶¶ 30–31 (ECF No. 1). She was sentenced to fifteen months on the probation

1 The Plaintiff names seven defendants: Cumberland County; Kevin Joyce, the sheriff of

Cumberland County; Timothy Kortes, the head administrator of the Cumberland County Jail (“CCJ”);

and Mark Renna, Sam Dickey, Deputy Brady, and Deputy Haskell, all corrections officers at CCJ.

Compl. ¶¶ 7, 14, 20, 22, 24, 26 (ECF No. 1).

2 The facts below are drawn from the allegations in the Complaint, which I take as true for the

purposes of deciding a motion to dismiss. Maloy v. Ballori-Lage, 744 F.3d 250, 251 (1st Cir. 2014)

(citing A.G. ex rel. Maddox v. Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013)).

violation. Compl. ¶ 32. Ms. Brown was pregnant when she turned herself in, and the

Defendants were aware of her pregnancy during the entire time relevant to this

Complaint. Compl. ¶¶ 33, 41.

At some point before December of 2018, Ms. Brown was transferred to the

Prerelease Center, which is across the parking lot from the main building at CCJ.

Compl. ¶¶ 34–35. On December 29 or 30, 2018, Ms. Brown was transferred back to

the main jail building.3 Compl. ¶¶ 37, 39, 42. Ms. Brown states that she did not pose

a safety or security risk to anyone. Compl. ¶ 44. Defendant Mark Renna, a corrections

officer at CCJ, was tasked with taking Ms. Brown back to the main jail from the

Prerelease Center. Compl. ¶ 42. Defendant Renna handcuffed Ms. Brown—who at

the time was thirty-five weeks along in her pregnancy and visibly pregnant—and

walked with her across the parking lot. Compl. ¶¶ 40, 43.

Defendant Renna later realized he had violated jail policy4 by handcuffing a

pregnant inmate, and he reported the matter to his supervisor, Lieutenant William

Brady. Compl. ¶¶ 46–47. Lieutenant Brady failed to report the incident to his

supervisors and signed off on a report of Ms. Brown’s transfer that failed to note that

handcuffs were used.5 Compl. ¶ 48. According to Ms. Brown, Defendant Kevin Joyce,

the sheriff of Cumberland County, was not made aware of the incident until February

3 Ms. Brown alleges that other inmates in the Prerelease Center complained to corrections

officers that she was threatening to turn them in for using drugs. Compl. ¶ 37. Ms. Brown denies

threatening other inmates and states that she in fact had reported other inmates for using drugs at

the Prerelease Center. Compl. ¶ 38.

4 The Plaintiff avers that Defendant Renna also violated a Maine statute, 30-A M.R.S. § 1582,

but that he was unaware of that violation. Compl. ¶¶ 45, 47.

5 Lieutenant Brady is not named as a defendant.

of 2019, when Plaintiff’s counsel informed him. Compl. ¶ 49. The Plaintiff alleges that

this was not the first time that deputies and supervisory staff at CCJ had handcuffed

a pregnant inmate in violation of Maine law. Compl. ¶ 50.

Ms. Brown went into labor on February 11, 2019, and she was transported from

CCJ to Maine Medical Center to give birth. Compl. ¶¶ 51–52. Throughout her twenty-

hour labor, CCJ corrections officer were present in the labor and delivery room, even

though Ms. Brown posed no escape or security risk and medical professionals had not

asked them to be present. Compl. ¶¶ 54–55. Corrections officers from the jail were

freely coming and going from Ms. Brown’s room, using their cell phones, drinking

coffee, and joking that Ms. Brown should name her child after the jail. Compl. ¶ 58.

Defendants Deputy Dan Haskell, Deputy Sam Dickey, and Deputy Carrie Brady6

were all present in the labor and delivery room at some point, and Deputies Brady

and Dickey were in the room when Ms. Brown’s child was born and saw both Ms.

Brown’s and her child’s naked and exposed bodies. Compl. ¶¶ 56–57, 59.

The Plaintiff asserts that the presence of the corrections officers in her labor

and delivery room violated state law and that Defendants Joyce and Kortes have

admitted the violation. Compl. ¶¶ 60, 62. According to the Plaintiff, Sheriff Joyce is

the chief policy maker for the Cumberland County Sheriff’s Department, and he is

responsible for training and supervising Defendants Dickey, Brady, Haskell, and

Renna. Compl. ¶ 63. The Plaintiff alleges that Sheriff Joyce failed to either train or

6 Deputies Haskell and Dickey are male corrections officers, and Deputy Brady is a female

corrections officer, not to be confused with Lieutenant Brady. Compl. ¶¶ 24, 26; see Def.’s Mot. 9.

supervise the Defendants as they were acting in their capacity as corrections officers.

Compl. ¶ 64. Major Timothy Kortes is a policy maker for the Cumberland County

Sheriff’s Department and is also responsible for training and supervising the

identified corrections officers, duties that the Plaintiff alleges he failed to fulfill.

Compl. ¶¶ 14, 65–66. Finally, the Plaintiff asserts that Cumberland County also

failed to train and supervise correctional officers and that the county has a pattern

and practice of failing to adequately train and supervise officers. Compl. ¶¶ 67–68.

The Plaintiff states that as a result of the Defendants’ actions, she suffered

anxiety, embarrassment, shame, and degradation. Compl. ¶ 69. She has brought

eleven claims against the Defendants. In Count I, she alleges that the Defendants

engaged in concert to violate her constitutional rights by covering up violations by

Officer Renna and by failing to train and supervise officers on their treatment of

pregnant inmates. Compl. ¶¶ 70–74 (asserting claim pursuant to 42 U.S.C. § 1985).

Counts II, III, IV, and V assert § 1983 claims against Defendants Renna, Dickey,

Brady, and Haskell, respectively, alleging that the corrections officers violated the

Plaintiff’s Eighth and Fourteenth Amendment rights. Compl. ¶¶ 75–114. In Counts

VI, VII, and VIII, the Plaintiff asserts § 1983 claims against Sheriff Joyce, Major

Kortes, and Cumberland County for violating her constitutional rights, and she

alleges that those constitutional violations stemmed from the Defendants’ grossly

negligent policies and customs and their deliberate, reckless, or callous indifference

to her constitutional rights. Compl. ¶¶ 115–28.

The Plaintiff also brings three state-law claims against the Defendants.7 In

Count IX, the Plaintiff asserts that the Defendants violated 30-A M.R.S. § 1582 when

she was handcuffed while pregnant. Compl. ¶¶ 136–40. In Count X, the Plaintiff

asserts a claim for civil conspiracy, alleging that the Defendants acted in concert to

commit the unlawful acts through unlawful means and in bad faith. Compl. ¶¶ 132–

35. Finally, in Count XI, the Plaintiff alleges that the Defendants violated the Maine

Civil Rights Act (“MCRA”), 5 M.R.S. § 4682, by intentionally attempting to interfere

with the Plaintiff’s exercise and enjoyment of her rights. Compl. ¶¶ 129–30.

The Defendants moved to dismiss the case pursuant to Federal Rule of Civil

Procedure 12(b)(6) on March 31, 2021 (ECF No. 8). They argue that the individual

officers are entitled to qualified immunity; that the Plaintiff fails to state a claim for

supervisory liability against Sheriff Joyce and Major Kortes and for municipal

liability against Cumberland County; that there is no private right of action under

30-A M.R.S. § 1582; and that the Plaintiff has not stated a claim for civil conspiracy

under 42 U.S.C. § 1985(3) or any other law.

LEGAL STANDARD

A court reviewing a motion to dismiss under Rule 12(b)(6) follows two steps.

First, the court must “isolate and ignore statements in the complaint that simply offer

legal labels and conclusions or merely rehash cause-of-action elements.” Schatz v.

Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012) (citing Ocasio-

7 The state-law claims are not in numerical order in the Complaint but are identified here based

on the numbers assigned to them.

Hernández v. Fortuño-Burset, 640 F.3d 1, 12 (1st Cir. 2011)). Second, the court must

“take the complaint’s well-pled (i.e., non-conclusory, non-speculative) facts as true,

drawing all reasonable inferences in the pleader’s favor, and see if they plausibly

narrate a claim for relief.” Id. (citing Ocasio-Hernández, 640 F.3d at 12).

DISCUSSION

I. Qualified Immunity

The Defendants argue that the individual officers are entitled to qualified

immunity both for handcuffing the Plaintiff while she was pregnant and for being

present in the hospital delivery room when the Plaintiff gave birth to her child. Thus,

they seek the dismissal of Counts II, III, IV, and V which assert § 1983 claims against

Defendants Renna, Dickey, Brady, and Haskell.

The U.S. Supreme Court has long held that “officers are entitled to qualified

immunity under § 1983 unless (1) they violated a federal statutory or constitutional

right, and (2) the unlawfulness of their conduct was ‘clearly established at the

time.’ ” District of Columbia v. Wesby, 138 S. Ct. 577, 589 (2018) (quoting Reichle v.

Howards, 566 U.S. 658, 664 (2012)); see also Guadalupe-Báez v. Pesquera, 819 F.3d

509, 517 (1st Cir. 2016) (applying standard at motion to dismiss stage). Within this

second prong—the “clearly established” inquiry—the First Circuit recognizes two

elements. Castagna v. Jean, 955 F.3d 211, 219–20 (1st Cir. 2020). The first element

“focuses on the clarity of the law at the time of the violation,” while the second

“focuses more concretely on the facts of the particular case and whether a reasonable

defendant would have understood that his conduct violated the plaintiff’s

constitutional rights.” Penate v. Hanchett, 944 F.3d 358, 366 (1st Cir. 2019) (quoting

Drumgold v. Callahan, 707 F.3d 28, 42 (1st Cir. 2013)).

The central question in the “clearly established inquiry” is whether “the law

was sufficiently clear that every reasonable official would understand that what he

is doing is unlawful.” Wesby, 138 S. Ct. at 589 (internal quotations omitted). The legal

principle at issue “must have a sufficiently clear foundation in then-existing

precedent,” and it must be “dictated by controlling authority or a robust consensus of

cases of persuasive authority”—not just “suggested” by precedent. Id. at 589–90

(internal quotations omitted). This is a “demanding standard” that “protects ‘all but

the plainly incompetent or those who knowingly violate the law.’ ” Id. at 589 (quoting

Malley v. Briggs, 475 U.S. 335, 341 (1986)). It “requires a high ‘degree of specificity,’ ”

meaning that the legal principle must “clearly prohibit the officer’s conduct in the

particular circumstances before him.” Id. at 590 (quoting Mullenix v. Luna, 577 U.S.

7, 13 (2015)). Still, officers can “be on notice that their conduct violates established

law even in novel factual circumstances,” Irish v. Fowler, 979 F.3d 65, 76 (1st Cir.

2020) (quoting Hope v. Pelzer, 536 U.S. 730, 741 (2002)), and the Supreme Court and

circuit courts have held “that cases involving materially similar facts are not

necessary to a finding that the law was clearly established,” id. at 77 (collecting

cases); see also id. at 76 (explaining that “[a] ‘robust consensus’ does not require the

express agreement of every circuit” and that “sister circuit law [can be] sufficient to

clearly establish a proposition of law when it would provide notice to every reasonable

officer that his conduct was unlawful”).

Questions involving qualified immunity should be resolved “at the earliest

possible stage in litigation,” Haley v. City of Boston, 657 F.3d 39, 47 (1st Cir. 2011)

(quoting Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam)), and thus in some

cases, this defense “can be raised and evaluated on a motion to dismiss,” id. (citing

Siegert v. Gilley, 500 U.S. 226, 232–33 (1991)); see also Maldonado v. Fontanes, 568

F.3d 263, 268 (1st Cir. 2009); Mitchell v. Forsyth, 472 U.S. 511, 526 (1985) (“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.”).

Nevertheless, “[t]he plausibility standard creates tension at this stage of

litigation between developing the requisite facts for a well-informed qualified

immunity determination and preserving a government official’s right to avoid the

burdens of pretrial matters, including discovery.” Reed v. Palmer, 906 F.3d 540, 548

(7th Cir. 2018) (citing Behrens v. Pelletier, 516 U.S. 299, 308 (1996)). Under the

motion-to-dismiss standard, a court must scrutinize “the defendant’s conduct as

alleged in the complaint . . . for objective legal reasonableness.” Behrens, 516 U.S. at

309 (internal quotations omitted).

A. Handcuffing of Ms. Brown

The Plaintiff asserts that, when she was thirty-five weeks pregnant, Defendant

Renna handcuffed her to walk her across the parking lot from the Prelease Center

back to the main jail. Compl. ¶¶ 40, 42–43. She contends that this action violated her

rights under the Eighth and Fourteenth Amendments, framing the latter as a

violation of her due process rights, Compl. ¶¶ 76–77, and she notes that it also

constituted a violation of 30-A M.R.S. § 1582, Compl. ¶ 45.

The Defendants argue that the Plaintiff has failed to establish both prongs of

the qualified immunity test with regard to this incident, but I sidestep whether the

Defendant Renna’s conduct violated the Plaintiff’s constitutional rights8 because I

ultimately find that a reasonable officer would not have understood that his conduct

violated the Plaintiff’s constitutional rights in the circumstances that Defendant

Renna faced. See Rivera-Corraliza v. Morales, 794 F.3d 208, 215 (1st Cir. 2015)

(judges are free to jump to the “clearly established” step).

On the “clearly established” prong, the Defendants assert that “[t]here is no

case law that clearly establishes” that it is unlawful to handcuff a pregnant inmate

who is not in labor for a short walk across a parking lot. Defs.’ Mot. 6. In the cases

where courts have held that the handcuffing of a pregnant inmate was

unconstitutional, the inmate was restrained during or immediately after labor. See

Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1252–54 (9th Cir. 2016) (collecting cases

discussing the dangers of restraining inmates when they are in labor); Villegas v.

Metro. Gov’t of Nashville, 709 F.3d 563, 574 (6th Cir. 2013) (concluding that “the

shackling of pregnant detainees while in labor offends contemporary standards of

8 In order to show that a defendant has violated the Eighth Amendment, a plaintiff must

demonstrate that (1) the alleged conduct is “objectively, sufficiently serious”; and (2) that the prison

official had a “sufficiently culpable state of mind,” meaning “deliberate indifference to inmate health

or safety.” Farmer v. Brennan, 511 U.S. 825, 834 (1994). To show that the defendant has violated the

plaintiff’s substantive due process rights under the Fourteenth Amendment, the plaintiff generally

“must allege facts ‘so extreme and egregious as to shock the contemporary conscience.’ ” Abdisamad v.

City of Lewiston, 960 F.3d 56, 59–60 (1st Cir. 2020) (quoting DePoutot v. Raffaelly, 424 F.3d 112, 118

(1st Cir. 2005)); see also Coyne v. Cronin, 386 F.3d 280, 287–89 (1st Cir. 2004).

human decency such that the practice violates the Eighth Amendment’s prohibition

against the ‘unnecessary and wanton infliction of pain’—i.e., it poses a substantial

risk of serious harm”); Nelson v. Corr. Med. Servs., 583 F.3d 522, 534 (8th Cir. 2009)

(holding that existing Supreme Court and lower court precedent “would have made

it sufficiently clear to a reasonable officer . . . that an inmate in the final stages of

labor cannot be shackled absent clear evidence that she is a security or flight risk”);

Remlinger v. Lebanon Cnty., No. 1:18-CV-00984, 2020 WL 3104008, at *4–5 (M.D. Pa.

June 11, 2020) (denying motion to dismiss and rejecting defendants’ argument that

it did not violate any clearly established right to shackle a pregnant inmate

throughout labor and immediately after emergency C-section); Brawley v.

Washington, 712 F. Supp. 2d 1208, 1219–21 (W.D. Wash. 2010) (denying defendants’

summary judgment motion because plaintiff showed she was exposed to an

unnecessary risk of harm when she was shackled during and immediately after

labor); Women Prisoners of D.C. Dep’t of Corr. v. District of Columbia, 877 F. Supp.

634 (D.D.C. 1994) (holding that shackling a woman “in labor and shortly thereafter

. . . is inhumane”), vacated in part and modified in part, 899 F. Supp. 659 (D.D.C.

1995).

While it may be clearly established that handcuffing a pregnant woman who

is in labor violates the woman’s constitutional rights, that is not what the Plaintiff

has alleged here. A court must “inquire whether a reasonable defendant would have

understood whether his particular conduct violated Plaintiff’s rights.” Cosenza v. City

of Worcester, 355 F. Supp. 3d 81, 96 (D. Mass. 2019) (citing Ashcroft v. Al-Kidd, 563

U.S. 731, 742 (2011) (instructing courts “not to define clearly established law at a

high level of generality”)). The key question is “whether the violative nature of

particular conduct is clearly established.” Al-Kidd, 563 U.S. at 742. Here, the Plaintiff

does not identify a single case in which a court has held that it was unconstitutional

to handcuff a pregnant woman who is not in labor or immediately post-partum.9

The Plaintiff emphasizes that state law prohibits the practice of handcuffing

pregnant inmates. Section 1582 provides:

A jail may not use restraints on a prisoner or juvenile known to be

pregnant, including during transport to a medical facility or birthing

center, labor, delivery and postpartum recovery, unless the jail

administrator or the designee of the jail administrator makes a

determination that the prisoner or juvenile presents an extraordinary

circumstance as described in subsection 2.

30-A M.R.S. § 1582(1). Subsection 2 then identifies limited scenarios in which

restraints may be used on pregnant inmates, and subsection 3 sets forth the

procedures—including written documentation—that must be followed when such

restraints are used. The Plaintiff alleges that none of the circumstances spelled out

in § 1582(2) were present when she was handcuffed, Compl. ¶ 138, and she suggests

that no written documentation was made, Compl. ¶ 48.

9 Although certain conduct can violate clearly established law even where no precise precedent

exists, courts typically reach such a conclusion when reviewing conduct that is inherently cruel and

“antithetical to human dignity.” Hope v. Pelzer, 536 U.S. 730, 745–46 (2002). At least one court has

held that there is “obvious cruelty inherent in” the practice of shackling “an inmate in the final stages

of labor” and that the practice is “both degrading and dangerous.” Nelson v. Corr. Med. Servs., 583

F.3d 522, 534 (8th Cir. 2009) (internal quotations omitted). And the cases involving the shackling of

women immediately before and during labor have also detailed the severe injuries that have resulted

from the practice, including permanent hip injury, torn stomach muscles, an umbilical hernia, and

injured and deformed hips. See Mendiola-Martinez v. Arpaio, 836 F.3d 1239, 1253 (9th Cir. 2016)

(explaining that “shackling women in labor exposes them to a risk so serious that it amounts to a

constitutional violation”).

While a violation of state law, may “bolster[] the plaintiff’s argument . . . that

‘a reasonable officer in the officer’s circumstances would have believed that his

conduct violated the Constitution . . .’ ” it “does not, in and of itself, establish a

constitutional violation.” Irish, 979 F.3d at 77 (quoting Stamps v. Town of

Framingham, 813 F.3d 27, 32 n.4 (1st Cir. 2016)). Without case law that establishes

widespread acceptance of a federal constitutional right, state law is not enough. See

Lopera v. Town of Coventry, 652 F. Supp. 2d 203, 216 (D.R.I. 2009) (explaining that

state law cannot “determine whether federal law was clearly established”); see also

Davis v. Scherer, 468 U.S. 183, 194 (1984) (“Officials sued for constitutional violations

do not lose their qualified immunity merely because their conduct violates some

statutory or administrative provision.”); Goyco de Maldonado v. Rivera, 849 F.2d 683,

687–88 (1st Cir. 1988).

For these reasons, Deputy Renna is entitled to qualified immunity, and Count

II is dismissed.

B. Officers in the Hospital Delivery Room

Defendants Haskell, Dickey, and Brady also claim that they are entitled to

qualified immunity. The Plaintiff alleges that these deputies violated her

constitutional rights by being present in the delivery room and observing the birth of

her child without her permission when she posed no security risk and when medical

personnel had not requested their presence. Compl. ¶¶ 59–61. In her Complaint, she

tethers these counts to a violation of her Eighth and Fourteenth Amendment rights,

but she invokes her Fourth Amendment right to privacy in her opposition to the

motion to dismiss.10 Pl.’s Resp. in Opp’n to Defs.’ Mot. to Dismiss (“Pl.’s Opp’n”) 7–8

(ECF No. 22).

For these three deputies, the Defendants focus their argument on the second

prong of the qualified immunity test. They assert that it was not clearly established

that it was unlawful for the officers to be present during the birth of the Plaintiff’s

child. Defs.’ Mot. 9–10. They contend that there is no Supreme Court, First Circuit,

or sister circuit precedent for such a position, and they argue that cases involving

strip searches or body cavity searches—including in the presence of officers of the

opposite sex—are distinguishable and would not have put officers in this case on

notice that their presence in the delivery room was unlawful. Defs.’ Mot. 9–11.

In response, the Plaintiff argues that the “Defendants’ reliance on the strip-

search line of cases is instructive, but not the final inquiry” because these cases

“explain the circumstances under which the right to privacy can be reasonably

infringed when balanced with legitimate penological interests.” Pl.’s Opp’n 7. The

Plaintiff then suggests that I should balance the loss of the Plaintiff’s privacy against

any legitimate penological needs, emphasizing that there was no emergency situation

and that her body was repeatedly exposed during the prolonged delivery. Pl.’s Opp’n

9. She argues that her privacy interests were infringed by the presence of corrections

officers in the delivery room during a time when she was naked and vulnerable. To

support her claim, she relies primarily on a First Circuit opinion which involved strip

10 The Complaint elsewhere asserts a violation of the Plaintiff’s Fourth Amendment rights. See

Compl. ¶ 1.

searches of male inmates that were conducted in response to a prison riot and were

supervised by a female corrections officer. See Pl.’s Opp’n 9 (citing Cookish v. Powell,

945 F.2d 441, 447 (1st Cir. 1991)). Although the Plaintiff appears to concede that “the

caselaw has not addressed this specific fact-pattern,” she asserts that the case law

puts the Defendants on notice that the Fourth Amendment itself confers privacy

interests on inmates and “delineates the ways in which that privacy interest can be

curtailed consistent with the interests of incarceration.” Pl.’s Opp’n 10. Finally, the

Plaintiff reiterates that the Defendants’ conduct was prohibited by state statute. Pl.’s

Opp’n 10 (“It does not pass the straight-face test that Defendants were unaware that

they were in direct violation of the Constitution’s right to privacy with the existence

of a statute specifically on point with respect to the conduct of their chosen

profession.”).

In Cookish,11 the First Circuit recognized that individuals—including

prisoners—retain a right to privacy12 in their bodies and have a right to shield their

11 Cookish v. Powell involved strip searches of male inmates conducted after a prison riot that

were supervised by a female prison guard. See generally 945 F.2d 441 (1st Cir. 1991). In holding that

the corrections officers were entitled to qualified immunity, the First Circuit focused on “the official’s

reasonable, although mistaken, conclusion regarding the existence of an emergency permitting a

visual body cavity search although conducted within the visual range of a prison guard of the opposite

sex.” Id. at 449.

12 While the First Circuit seems to have rooted this right to privacy in the Fourth Amendment,

other courts have rooted it elsewhere. See Everson v. Mich. Dep’t of Corr., 391 F.3d 737, 757 n.26 (6th

Cir. 2004) (collecting cases). Some describe it as a liberty interest protected by the Due Process Clause

of the Fourteenth Amendment. See Blanco v. Cnty. of Kings, 142 F. Supp. 3d 986, 996 (E.D. Cal. 2015)

(citing York v. Story, 324 F.2d 450 (9th Cir. 1963)). Others have held that it originates in the Fourth

Amendment’s prohibition of unreasonable searches and seizures. See Cornwell v. Dahlberg, 963 F.2d

912, 916 (6th Cir. 1992). Still others have found that an inmate’s Eighth Amendment rights can be

implicated when she is forced to expose her body to guards of the opposite sex. See Jordan v. Gardner,

986 F.2d 1521, 1531 (9th Cir. 1993) (en banc) (holding that a cross-gender clothed body search policy

at a women’s prison constituted cruel and unusual punishment because many of the inmates had

histories of sexual or physical abuse by men and because cross-gender bodily searches, even if

conducted properly, would likely inflict psychological trauma); Kent v. Johnson, 821 F.2d 1220, 1227–

naked bodies from view from members of the opposite sex. See 945 F.2d at 447. The

First Circuit found that “the trend, if not the clearly established law, was that an

inmate’s constitutional right to privacy is violated when guards of the opposite sex

regularly observe him/her engaged in personal activities, such as undressing,

showering, and using the toilet.” Id. at 446. Summarizing the state of the law as of

October 1987, the First Circuit stated that:

(1) inadvertent, occasional, casual, and/or restricted observations of an

inmate’s naked body by a guard of the opposite sex did not violate the

Fourth Amendment and (2) if the observation was other than

inadvertent, occasional, casual, and/or restricted, such observation

would (in all likelihood) violate the Fourth Amendment, except in an

emergency condition.

Id. at 447.

Other circuits have reached similar conclusions. See Everson v. Mich. Dep’t of

Corr., 391 F.3d 737, 757 (6th Cir. 2004) (“Our court has recognized that a convicted

prisoner maintains some reasonable expectations of privacy while in prison,

particularly where those claims are related to forced exposure to strangers of the

opposite sex, even though those privacy rights may be less than those enjoyed by non-

prisoners.” (internal quotations omitted)); Hill v. McKinley, 311 F.3d 899, 903–04 (8th

28 (6th Cir. 1987) (holding that plaintiff sufficiently alleged a violation of his Eighth Amendment

rights where he alleged “that female prison guards have allowed themselves unrestricted views of his

naked body in the shower, at close range and for extended periods of time, to retaliate against, punish

and harass him for asserting his right to privacy”). The Plaintiff has referenced all three constitutional

amendments in her Complaint. See Semelbauer v. Muskegon Cnty., No. 1:14-cv-1245, 2015 WL

9906265, at *3–4 (W.D. Mich. Sept. 11, 2015) (permitting plaintiff to proceed on separate claims that

the viewing of female inmates by male guards violated both her Fourth and Eighth Amendment

rights).

Cir. 2002) (holding that prisoner’s “Fourth Amendment rights were violated when the

defendants allowed her to remain completely exposed to male guards for a substantial

period of time after the threat to security and safety had passed”); Hayes v. Marriott,

70 F.3d 1144, 1146 (10th Cir. 1995) (“[P]risoners do retain a limited constitutional

right to bodily privacy, particularly as to searches viewed or conducted by members

of the opposite sex.”); Strickler v. Waters, 989 F.2d 1375, 1387 (4th Cir. 1993) (“[W]e

have held that, when not reasonably necessary, exposure of a prisoner’s genitals to

members of the opposite sex violates his constitutional rights.” (citing Lee v. Downs,

641 F.2d 1117, 1119 (4th Cir. 1981))); Michenfelder v. Sumner, 860 F.2d 328, 333–34

(9th Cir. 1988) (“Shielding one’s unclothed figure from the view of strangers,

particularly strangers of the opposite sex is impelled by elementary self-respect and

personal dignity.”).

Still other courts have found that, regardless of the gender of the parties, it is

clearly established “that, absent a legitimate reason, individuals maintain a right to

bodily privacy, in particular the right not to have their genitals exposed to onlookers.”

Mitchell v. Stewart, 608 F. App’x 730, 735 (11th Cir. 2015); see also Stoudemire v.

Mich. Dep’t of Corr., 705 F.3d 560, 575 (6th Cir. 2013) (stating that gender “is just

one fact for the court to consider” and suggesting that other facts include whether

others were able to view the inmate’s body, the humiliating nature of the strip search,

and whether the search was reasonably related to a legitimate penological interest).

Put another way, “gratuitous invasions of privacy violate the Fourteenth

Amendment.” Hydrick v. Hunter, 500 F.3d 978, 1000 (9th Cir. 2007) (citations

omitted), vacated and remanded on other grounds, 556 U.S. 1256 (2009); see also

Salem v. Mich. Dep’t of Corr., 643 F. App’x 526, 530 (6th Cir. 2016). “[S]trip searches

performed in view of other inmates without a legitimate penological justification

violate[ ] inmates’ clearly established” constitutional rights); Riley v. Glover, No. 4:17-

cv-00234-CDL-MSH, 2019 WL 1338911, at *3 (M.D. Ga. Mar. 4, 2016) (denying

motion to dismiss on qualified immunity grounds where plaintiff alleged that the

defendant forced him to walk through a prison with his genitals exposed). And

because assessing whether an invasion of privacy is “gratuitous” is a “highly factual

inquiry,” dismissal on qualified immunity grounds is often not appropriate at the

motion to dismiss stage. James v. Lee, 485 F. Supp. 3d 1241, 1260 (S.D. Cal. 2020).

Although the Plaintiff has not cited a case holding that the right to privacy

extends to the circumstances of labor, officers “can still be on notice that their conduct

violates established law even in novel factual circumstances.” Irish, 979 F.3d at 76

(quoting Hope, 536 U.S. at 741). The key question is whether the “contours” of the

right “were sufficiently definite that any reasonable official in the defendant’s shoes

would have understood that he was violating it.” Kisela v. Hughes, 138 S. Ct. 1148,

1153 (2018) (quoting Plumhoff v. Rickard, 572 U.S. 765, 778–79 (2014)). This means

that, in the “obvious case,” there need not be a materially similar case for the right to

be clearly established. See Wesby, 138 S. Ct. at 582 (citing Brosseau v. Haugen, 543

U.S. 194, 199 (2004)); see also Taylor v. Riojas, 141 S. Ct. 52, 53–54 (2020).

As discussed above, where there is a broad consensus in the case law, the fact

that the specific conduct also constitutes a violation of state law can “bolster[ ] the

plaintiff’s argument . . . that ‘a reasonable officer in the officer’s circumstances would

have believed that his conduct violated the Constitution.” Irish, 979 F.3d at 77

(quoting Stamps, 813 F.3d at 32 n.4). Maine law provides that “[w]hen a prisoner or

juvenile is admitted to a medical facility or birthing center for labor or childbirth, a

corrections officer may not be present in the room during labor or childbirth unless

specifically requested by medical personnel.” 30-A M.R.S. § 1582(4) (adding that, “[i]f

a corrections officer’s presence is requested by medical personnel, the corrections

officer must be female if practicable”).

In this case, the Plaintiff identifies three deputies who were allegedly in the

delivery room when she gave birth—two male deputies and one female deputy. The

Plaintiff alleges that Deputy Haskell and Deputy Dickey, both male corrections

officers, were “present in the labor and delivery room without Plaintiff’s permission

during the birth of her child.” Compl. ¶ 59. She also alleges that Deputy Dickey and

Deputy Brady saw her naked and exposed body,13 Compl ¶ 57, and she contends that

she “did not pose a security risk or danger to anyone,” Compl. ¶ 61. As discussed

above, precedent from the First Circuit and other circuits indicates that such viewing

of an inmate’s naked body by officers of the opposite sex can violate clearly established

law, particularly when there are no exigent circumstances or penological

13 Although the Plaintiff does not specifically allege that Deputy Haskell ever saw her exposed

body, she does allege that he was in the delivery room during the birth of her child. Compl. ¶ 59. Given

the nature of childbirth and the dearth of facts about the layout of the delivery room, I find it difficult

to distinguish between these two male deputies at this stage of the proceeding.

justifications. And other courts have extended this rule to officers of the same sex.14

Here, the Plaintiff does not merely allege that the officers saw brief glimpses of her

naked body. Rather, she alleges that—over the course of twenty hours—the officers

were present in her hospital room during the highly intimate act of childbirth, while

she had little opportunity or control to shield her body or protect her privacy.

To be sure, at this early stage, the facts regarding the extent and intrusiveness

of the deputies’ conduct are limited and thus it is difficult to fully assess their conduct.

They may still be entitled to qualified immunity if the facts show that their conduct

did not violate clearly established law. Mills v. City of Barbourville, 389 F.3d 568, 579

(6th Cir. 2004) (on motion for summary judgment, holding that officer was entitled to

qualified immunity for accidentally walking past female arrestee when she was being

searched and her breasts were exposed, but noting that if the officer “planned or

intended to see her during the search, he would not be entitled to qualified

immunity”). At the motion to dismiss stage, however, I accept the allegations in the

Complaint as true and draw any inferences in the light most favorable to the Plaintiff.

Those inferences suggest that Deputies Haskell, Dickey, and Brady placed

themselves in a position to observe the Plaintiff’s naked body during the course of her

twenty hours of labor and without any readily apparent penological justification or

exigent circumstances. Ashann-Ra v. Virginia, 112 F. Supp. 2d 559, 565 (W.D. Va.

2000) (at summary judgment stage, concluding that court was “unable to hold that

14 I recognize that it may be more difficult for the Plaintiff to prove that Deputy Brady, who is

female, violated clearly established law. However, at this point, the Defendants have not argued that

the deputies’ conduct should be viewed differently based on their sex.

the defendants reasonably believed that they were not violating one of the plaintiff's

‘clearly established’ constitutional rights” where female correctional officers were

able to view inmates showering). Thus, I conclude that dismissal of the § 1983 claims

against them is not warranted.

II. Supervisory Liability – Claims against Joyce and Kortes

The Plaintiff alleges that Sheriff Joyce and Major Kortes are both responsible

for the training and supervision of the named Defendant deputies, and she asserts

that the “constitutional and statutory violations of Plaintiff’s rights committed by all

other Defendants were caused by the acts and/or omissions of Defendant[s] Joyce [and

Kortes], including, but not limited to, [their] grossly negligent policies, customs

and/or pattern of practice in recruitment, training, supervision, and discipline of all

other Defendants.” Compl. ¶¶ 116–17, 120–21. The Defendants assert that these

claims should be dismissed because the Plaintiff does not allege that either Sheriff

Joyce or Major Kortes was aware of prior instances in which pregnant inmates were

handcuffed or officers were present in the delivery room when an inmate gave birth

and she does not even allege that the latter has ever occurred before. Defs.’ Mot. 12–

13.

Generally, a supervisor’s liability under § 1983 “ ‘must be premised on his or

her own acts and omissions’ and does not attach automatically even if a subordinate

is found liable.” Justiniano v. Walker, 986 F.3d 11, 20 (1st Cir. 2021) (quoting

Guadalupe-Báez, 819 F.3d at 515). “To connect the liability dots successfully between

supervisor and subordinate,” a plaintiff must show two things: (1) “that one of the

supervisor’s subordinates abridged the plaintiff’s constitutional rights” and (2) “that

the supervisor’s (in)action ‘was affirmatively linked to that behavior in the sense that

it could be characterized as gross negligence amounting to deliberate indifference.’ ”

Id. (quoting Guadalupe-Báez, 819 F.3d at 514–15). Deliberate indifference, which Ms.

Brown alleges both Sheriff Joyce and Major Kortes showed here, in turn requires a

plaintiff to allege “(1) a grave risk of harm, (2) the defendant’s actual or constructive

knowledge of that risk, and (3) his failure to take easily available measures to address

the risk.” Id. (quoting Camilo-Robles v. Hoyos, 151 F.3d 1, 7 (1st Cir. 1998). But, as

the First Circuit has stressed, deliberate indifference alone “does not equate with

supervisory liability” because there must also be a solid “causal link between a

supervisor’s conduct and the constitutional violation.” Guadalupe-Báez, 819 F.3d at

515 (quoting Figueroa–Torres v. Toledo–Dávila, 232 F.3d 270, 279 (1st Cir. 2000)).

The First Circuit has also “cautioned that ‘the liability criteria for failure to train

claims are exceptionally stringent.’ ” Justiniano, 986 F.3d at 20 (quoting Hayden v.

Grayson, 134 F.3d 449, 456 (1st Cir. 1998)).

Ms. Brown alleges that staff at CCJ had previously handcuffed pregnant

inmates. Compl. ¶ 50. She also alleges that officers from the jail “were freely coming

and going from [her delivery] room[,] using their cell phones, joking that [she] should

name her child after the jail[,] and drinking coffee.” Compl. ¶ 58. She states that

Sheriff Joyce is “responsible for the training, supervision, and conduct” of the

Defendant officers; that he is “responsible for enforcing the regulations of the

Cumberland County Sheriff’s Department, making and enforcing police department

policies that protect the constitutional rights of citizens, and for ensuring that the

correctional officers of the [CCJ] obey” federal and state laws; and that he is

“responsible for ensuring that all inmates received appropriate medical care in

compliance with” federal and state law. Compl ¶¶ 9–11; see also Compl. ¶ 63

(“Defendant Joyce is the chief policy maker for the Cumberland County’s Sheriff’s

Department.”). She asserts that Sheriff Joyce “failed in his duty to either train or

supervise the [correctional officer Defendants],” Compl. ¶ 64, and she alleges that the

violations of her constitutional and statutory rights “committed by all other

Defendants were caused by the acts and/or omission of Defendant Joyce, including,

but not limited to, his grossly negligent policies, customs and/or pattern of practice in

recruitment, training, supervision, and discipline of all other Defendants.” Compl.

¶ 117. The Plaintiff adds that Sheriff Joyce’s “acts and/or omissions amount to

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

including Plaintiff.” Compl. ¶ 118. Her allegations regarding Major Kortes are

essentially identical. See Compl. ¶¶ 16–18, 65–66, 121–22.

Although the Complaint is short on specifics—particularly regarding Sheriff

Joyce’s and Major Kortes’s liability in connection with the handcuffing incident15—

certain inferences can be drawn from what the Plaintiff does allege. From the

allegations that multiple officers nonchalantly joked and drank coffee in the labor

and delivery room, I can infer that those officers were not trained about how to handle

15 The Plaintiff briefly alleges that her handcuffing incident “was not the first time” deputies at

the jail handcuffed a pregnant inmate, Compl. ¶ 50, but she does not allege when such other violations

occurred, who was involved, or even how many other such incidents there were. And she does not

allege that either Sheriff Joyce or Major Kortes had any knowledge about such incidents. In fact, the

Plaintiff concedes that Sheriff Joyce “was not made aware of the incident” where she was handcuffed

until February of 2019 when Plaintiff’s counsel alerted him. Compl. ¶ 49.

pregnant inmates or about their duties under state law. That other officers came and

went throughout her labor allows me to infer that none of the officers understood that

the deputies in the labor and delivery room were violating state law, suggesting that

the lack of training was widespread. Finally, the allegation that multiple corrections

officers were coming and going during the twenty-hour labor allows me to infer that

supervisors were coordinating the assignment of officers and were at least generally

aware of the situation.

To hold Sheriff Joyce and Major Kortes liable, the Plaintiff will have to show

that these officials’ actions “evince[d] reckless or callous indifference to the

constitutional rights of others,” and “mere negligence will not suffice.” Justiniano,

986 F.3d at 20 (quoting Guadalupe-Báez, 819 F.3d at 515); see also Guadalupe-Báez,

819 F.3d at 516 (explaining that the “supervisor must be on notice”—either actual or

constructive—of the violation (citations omitted)). The Plaintiff will also have to

establish their “conduct led inexorably to the constitutional violation.” Id. at 515

(quoting Hegarty v. Somerset Cnty., 53 F.3d 1367, 1380 (1st Cir. 1995)).

But at the pleading stage, it is unlikely that the Plaintiff has access to any

information about similar incidents. If female inmates are sent to the hospital to have

their babies, other female inmates are not in a position to observe how they are

guarded. And, for a variety of reasons, female inmates might not wish to go public

with their own childbirth stories. The Defendants, on the other hand, are in a better

position to know about the treatment of other pregnant inmates. Indeed, they are

required by state law to keep records pertaining to pregnant inmates. See 30-A M.R.S.

§ 1660(4).16 In such cases, the First Circuit has instructed that “ ‘some latitude may

be appropriate’ in applying the plausibility standard.” Saldivar v. Racine, 818 F.3d

14, 23 (1st Cir. 2016) (quoting García–Catalán v. United States, 734 F.3d 100, 104

(1st Cir. 2013)); see also Murphy v. Baker, No. 17-30021-MGM, 2019 WL 1437825, at

*4 (D. Mass. Mar. 29, 2019) (concluding that, though plaintiff’s complaint was

“couched in general terms,” it “contain[ed] sufficient factual content to survive a

motion to dismiss,” particularly because the defendants “possess[ed] information that

[was] otherwise beyond Plaintiff’s reach but is necessary to prove his claims”

(quotations omitted)). And the First Circuit has reiterated that “the plausibility

inquiry properly takes into account whether discovery can reasonably be expected to

fill any holes in the pleader’s case,” thus explaining that dismissal may not be

warranted when “it is reasonable to expect that modest discovery may provide the

missing link that will allow the [plaintiff] to go to trial on her claim.” García–Catalán,

734 F.3d at 104–05 (internal quotations omitted).

It is certainly possible that, after discovery, the facts will reveal that Sheriff

Joyce and Major Kortes were unaware of the actions of the correctional officers or

that the Plaintiff’s experience was an isolated incident not caused by the supervisors’

action or inaction. But at this stage, given the nature of the Plaintiff’s claims, I

conclude that her claims against these supervisors should survive dismissal. See

Murphy, 2019 WL 1437825, at *4 (stating that the question at the motion to dismiss

16 The Plaintiff has alleged that Lieutenant Brady failed to note in his report of the Plaintiff’s

transfer back to the main jail that she was handcuffed.

stage “is whether [the plaintiff] has alleged facts that paint a ‘plausible picture’ and

if proven would support a finding of individual liability” (quoting Haley, 657 F.3d at

52)).

III. Municipal Liability – Claim against Cumberland County

As with the claims against Sheriff Joyce and Major Kortes, the Defendants

contend that the Complaint fails to state a claim against Cumberland County because

it does not allege a widespread practice of handcuffing pregnant inmates and because

its allegations regarding the officers’ presence in the delivery room “relate only to a

discrete, one-time event.” Defs.’ Mot. 13.

In § 1983 suits, a municipality may be liable “if the governmental body itself

‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to

such deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (quoting Monell v.

N.Y. City Dep’t of Social Servs., 436 U.S. 658, 692 (1978)). But municipalities “are not

vicariously liable under § 1983 for their employees’ actions.” Id. Rather, they “are

responsible only for ‘their own illegal acts.’ ” Id. (quoting Pembaur v. Cincinnati, 475

U.S. 469, 479 (1986)). Thus, a plaintiff who seeks to impose § 1983 liability on a

municipality—like Cumberland County—must prove that municipal employees acted

pursuant to official policy or custom in causing her injury. See id.; see also Saldivar,

818 F.3d at 19–20.

“A plaintiff can establish the existence of an official policy by showing that the

alleged constitutional injury was caused . . . by a person with final policymaking

authority.”17 Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir. 2008). She can establish

the existence of a municipal custom by identifying a practice that is “so well-settled

and widespread that the policy making officials of the municipality can be said to

have either actual or constructive knowledge of it yet did nothing to end” the practice.

Walden v. City of Providence, 596 F.3d 38, 57–58 (1st Cir. 2010) (quoting Bisbal–

Ramos v. City of Mayagüez, 467 F.3d 16, 24 (1st Cir. 2006)); see also Connick, 563

U.S. at 61 (“Official municipal policy includes the decisions of a government’s

lawmakers, the acts of its policymaking officials, and practices so persistent and

widespread as to practically have the force of law.”). In some “limited circumstances,”

a municipality’s “decision not to train certain employees about their legal duty to

avoid violating citizens’ rights may rise to the level of an official government policy

for purposes of § 1983.” Connick, 563 U.S. at 61.

The Plaintiff alleges that “Defendant Cumberland County is also responsible

for the training and supervision of the correctional officers and failed in its duty to

either train or supervise the Defendants.” Compl. ¶ 67. She further asserts that

Cumberland County “has a pattern and practice of failing to . . . adequately train and

supervise police officers as they are constitutionally required.” Compl. ¶ 68. The

Plaintiff then alleges that the “policy, customs and practices of Cumberland County

and its policy makers comprise the cause of and the moving force behind the

17 There is an overlap between municipal liability and supervisory liability because the former is

based on the decisions of policymakers, who are often also supervisors. See Quinn v. US Prisoner

Transp. Inc., No. 2:18-cv-00149-DBH, 2019 WL 257980, at *8 (D. Me. Jan. 17, 2019), report and

recommendation adopted, No. 2:18-cv-149-DBH, 2019 WL 1474389 (D. Me. Apr. 3, 2019).

constitutional violations at issue in this complaint.” Compl. ¶ 124. She adds that the

County’s “policies and customs caused the deprivation” of her constitutional and

statutory rights and “are tantamount to reckless, callous, or deliberate indifference”

to her rights. Compl. ¶ 127.

As with the supervisory liability claims, I acknowledge that the Plaintiff’s

allegations are scarce on details, particularly details about municipal policymakers

exuding deliberate indifference to the risk of harm to her. But, again, she is likely not

in a position to access or know facts about other possible instances in which officers

were present during an inmate’s childbirth. See García–Catalán, 734 F.3d at 104–05.

At this stage, then, it is hard to see how she could piece together other possible

instances in order to show that there was a pattern or practice amongst officers.18

What she has pleaded, however, suggests that Cumberland County employees were

potentially uninformed about the proper treatment of pregnant inmates under

federal and state law, poorly trained about their duties, or part of a culture of

indifference about how to treat pregnant inmates. While she has not alleged that

other pregnant inmates had similar experiences, her allegations involve multiple

CCJ officers. And from her allegations, it appears that no officers at the hospital had

18 I see a difference between the handcuffing incident and the presence of the officers at the birth

of the Plaintiff’s child. For example, the Plaintiff indicates that CCJ had a policy against handcuffing

pregnant inmates. See Compl. ¶ 47 (alleging that “Defendant Renna realized he had violated jail policy,

but not the statute, by handcuffing Plaintiff and reported this matter to Lt. Brady”); see also

Abdisamad, 960 F.3d at 60–61 (holding that complaint failed to allege a municipal policy or custom

where it “include[d] no facts whatsoever about a [city] policy that would be unconstitutional” and

instead alleged that child’s death resulted from defendants’ failure to follow their own protocols). But

the Plaintiff has only asserted one municipal liability claim against Cumberland County, and because

I conclude that she has sufficiently alleged a claim stemming from the presence of the officers in the

delivery room, I will not parse that claim based on different grounds or theories of liability.

any qualms about being present in the delivery room when she gave birth—or about

any of the other officers being present either. See Compl. ¶¶ 54, 58 (alleging that

multiple officers “were freely coming and going from [her delivery] room,” using their

cell phones, and making jokes over the course of the twenty hours that she was in

labor). Her Complaint thus paints a plausible picture that Cumberland County had

a custom of disregarding pregnant inmates’ rights or failed to properly train its

employees with regard to those rights.

Although the Plaintiff will need to develop more facts in order to prevail on her

claim against Cumberland County, I conclude that Count VIII should not be

dismissed at this stage.

IV. MCRA Claim

In Count XI, the Plaintiff asserts that the Defendants violated the MCRA when

they “intentionally attempted to interfere with the exercise and enjoyment of

Plaintiff’s rights.” Compl. ¶ 130. The MCRA’s “protections and immunities are

generally ‘coextensive with those afforded by 42 U.S.C. § 1983.’ ” Johnson v. City of

Biddeford, 454 F. Supp. 3d 75, 92 (D. Me. 2020) (quoting Estate of Bennett v.

Wainwright, 548 F.3d 155, 178–79 (1st Cir. 2008)). Thus, because the § 1983 claim

against Defendant Renna is dismissed, any claims against him that arise under the

MCRA are dismissed as well. Count XI remains only as to the claims against

Defendants Haskell, Dickey, Brady, Joyce, Kortes, and Cumberland County.

V. Section 1985 Claim

The Defendants argue that Count I—asserting a conspiracy to interfere with

the Plaintiff’s civil rights under 42 U.S.C. § 1985—should be dismissed because the

Plaintiff does not allege any type of agreement or conspiratorial purpose for either

the handcuffing incident or the presence of officers in the delivery room. Defs.’ Mot.

15 (adding that “there are no allegations that would permit the court to infer an

agreement, motivated by some discriminatory animus, among the Defendants to

deprive [the Plaintiff] of her constitutional rights”).

In a few sentences, the Plaintiff responds that the conspiracy claim should not

be dismissed because “Defendant Officers discussed the fact that they were present

in her labor and delivery room, and one of the officers confirmed that they did not

have to be present in the room, yet they continued to come and go in violation of her

above-enumerated rights.”19 Pl.’s Opp’n 13 (adding that the “Defendants knew they

were violating her right to privacy and agreed to continue to do so”).

“Section 1985 provides a remedy for acts of civil conspiracy in which two or

more individuals conspire for the purpose of depriving another of rights or privileges

accorded to them by law.” Alston v. Spiegel, 988 F.3d 564, 577 (1st Cir. 2021) (citing

42 U.S.C. § 1985). To plead an actionable claim under this statute, a plaintiff “must

allege the existence of a conspiracy, allege that the purpose of the conspiracy is to

deprive the plaintiff of the equal protection of the laws, describe at least one overt act

in furtherance of the conspiracy, and show either injury to person or property, or a

deprivation of a constitutionally protected right.” Id. (internal quotations and citation

omitted). To adequately plead the existence of a conspiracy “a plaintiff must plausibly

19 Nowhere in the Complaint does the Plaintiff allege that one of the officers confirmed that they

did not have to be present in the delivery room.

allege facts indicating an agreement among the conspirators to deprive the plaintiff

of [her] civil rights” or “plausible factual allegations sufficient to support a reasonable

inference that such an agreement was made.” Id. at 577–78 (internal quotations and

citation omitted). Put simply, “[v]ague and conclusory allegations about persons

working together, with scant specifics as to the nature of their joint effort or the

formation of their agreement, will not suffice to defeat a motion to dismiss.” Id. at 578

(citing Parker v. Landry, 935 F.3d 9, 18 (1st Cir. 2019)).

Like the plaintiff in Alston, Ms. Brown’s Complaint offers vague allegations

and scant specifics. It alleges no facts suggesting a conspiratorial agreement or

purpose. Although a court can infer that an agreement was made when direct

evidence is lacking, such an inference must still be based on sufficient and plausible

factual allegations. Ms. Brown alleges that the actions of Lieutenant Brady, “in

covering up for the violations of Defendant Renna,” and “the failure to train and

supervise officers regarding their obligations for treatment of pregnant inmates are

specific acts done in concert in furtherance of this conspiracy.” Compl. ¶ 72. But even

if those actions were done with the purpose of violating the Plaintiff’s constitutional

rights,20 she still alleges no facts suggesting the existence of an agreement. On the

first “specific act[ ],” she merely alleges that Lieutenant Brady—who is not named as

a defendant in this case—“failed to make his supervisors aware of Defendant Renna’s

20 Importantly, the crux of the Plaintiff’s claim regarding her handcuffing was that the act itself

violated her constitutional rights. It is unclear if she is also asserting that the alleged coverup of that

incident also violated her constitutional rights, particularly because she does not assert any claims

against Lieutenant Brady whom she credits with “sign[ing] off on an inaccurate report of [her] transfer

back to the main jail by failing to note that handcuffs were applied to [her].” Compl. ¶ 48.

violation and signed off on an inaccurate report.” Compl. ¶ 48. She does not allege

any facts suggesting that there was an agreement amongst the Defendants to omit

information from the report, let alone any facts suggesting that the purpose of such

an agreement was to violate her constitutional rights. For the second “specific act[ ],”

the alleged failure to train and supervise officers in the treatment of pregnant

inmates, the same deficiencies exist, but the Complaint also fails to even identify

which Defendants supposedly conspired. See Compl. ¶ 72. These vague allegations

and legal conclusions about the existence of a conspiracy are insufficient. “A pleader

is entitled to have reasonable inferences drawn in his favor, but he is not entitled to

the benefit of speculation unanchored to sufficiently supportive facts.” Alston, 988

F.3d at 578; see also Thomas v. Town of Chelmsford, 267 F. Supp. 3d 279, 307 (D.

Mass. 2017) (“The plaintiffs cannot defeat a motion to dismiss based on conclusory

allegations of conspiracy that are not supported by references to material facts. The

plaintiffs plead no facts to support the existence of an agreement between parties to

violate their federal constitutional rights, so they fail to cross the plausibility

threshold.”). Thus, Count I is dismissed.

VI. State Civil Conspiracy Claim

The Defendants also argue that Count X—which raises a civil conspiracy claim

under state law—should be dismissed. They note that “civil conspiracy” is not an

independent tort in Maine, but rather must be tied to other tort claims, and point out

that the Plaintiff asserts no other tort claim in this action. Defs.’ Mot. 15–16. The

Plaintiff does not address this specific point in her opposition. Instead, she states that

the Complaint sufficiently pleaded the elements of her “conspiracy claim,” without

specifying the conspiracy claim to which she is refers. Pl.’s Opp’n 13.

The Defendants are correct that because civil conspiracy is not an independent

tort under state law, “liability ordinarily may not be imposed on this basis alone.”

Johnson, 454 F. Supp. 3d at 93 (citing Fiacco v. Sigma Alpha Epsilon Fraternity, 484

F. Supp. 2d 158, 176 & n.18 (D. Me. 2007)); see also Potter, Prescott, Jamieson &

Nelson, P.A. v. Campbell, 1998 ME 70, ¶ 8, 708 A.2d 283, 286 (Me. 1998). By not

asserting any other tort claim, the Plaintiff has failed to properly assert a civil

conspiracy claim. Moreover, as with her § 1985 claim, her civil conspiracy claim is

also insufficient because she fails to allege facts that would establish the elements of

such a state law claim. See Johnson, 454 F. Supp. 3d at 93 (explaining that the

elements of a civil conspiracy claim under Maine law are: “(1) two or more persons;

(2) an object to be accomplished; (3) a meeting of minds on the object or course of

action; (4) one or more unlawful acts; and (5) damages” (quoting Smith v. Coyne, No.

CV-03-405, 2004 WL 1433638, at *4 (Me. Super. Ct. Apr. 12, 2004))). For example,

there are no facts in the Complaint suggesting that there was a “meeting of minds”

among any Defendants. Thus, Count X is also dismissed.

VII. Claim Under 30-A M.R.S. § 1582

The Defendants argue that Count IX should be dismissed because there is no

express private right of action under 30-A M.R.S. § 1582. Defs.’ Mot. 14–15.

The Law Court has explained that “[a] statute may provide for a private right

of action by express language or by implication.” Wawenock, LLC. v. Dep’t of Transp.,

2018 ME 83, ¶ 5, 187 A.3d 609, 612 (Me. 2018). But it has also stated that a private

right of action is most commonly found from express language, emphasizing that if

the Legislature “had intended that a private party have a right of action, it would

have either expressed its intent in the statutory language or legislative history or,

more likely, expressly enacted one.” Id. (quotation omitted); see also Charlton v. Town

of Oxford, 2001 ME 104, ¶ 15, 774 A.2d 366, 372 (Me. 2001) (“We are hesitant to imply

a private right of action where the legislature has not expressly stated that a cause

of action exists.”). When assessing whether a private right of action may be implied,

the Law Court examines: “(1) whether the plaintiff is a member of the class for whose

benefit the statute was enacted; (2) whether there is any indication of legislative

intent, explicit or implicit, either to create such a remedy or deny one; (3) whether it

is consistent with the underlying legislative scheme to imply such a remedy; and (4)

whether the cause of action is one traditionally relegated to one jurisdiction rather

than another.” Goodwin v. Sch. Admin. Dist. No. 35, 1998 ME 263, ¶ 12, 721 A.2d

642, 646 (Me. 1998) (citation omitted).

The Plaintiff does not appear to assert that § 1582 contains an express private

right of action, nor do I see one in the statute. Rather, in her opposition, the Plaintiff

seems to argue that there is an implied private right of action in § 1582. See Pl.’s

Opp’n 11–13. First, the Plaintiff contends that § 1582 must have done more than just

set a policy because jails were already required to promulgate policies and similar

policies were already being drafted when the provision was enacted. Thus, it would

render this statute superfluous to conclude that there was no private right of action.

Second, the Plaintiff argues that, “[i]f the court does not construe the statute as

conferring a private right of action, there is no enforcement mechanism to a violation

of this statute,” adding that concluding “ the legislature would enact a superfluous

statute violates the canons of statutory construction.” Pl.’s Opp’n 12–13.

Neither of the Plaintiff’s arguments identifies any grounds for finding a private

right of action in the statute or in its legislative history. Her first argument does not

identify any clear indication of legislative intent to authorize private individuals to

enforce § 1582. As to her second argument, the Law Court has rejected the notion

that “the mere presence of the words ‘must’ and ‘shall’ in a statute . . . mean[s] that a

private right of action exists to enforce it.” Wawenock, 2018 ME 83, ¶ 9, 187 A.3d at

615. And, although I recognize that § 1582 was likely enacted to benefit individuals

such as the Plaintiff, a pregnant inmate, there still must be some “indication of

legislative intent to create . . . a private remedy” and “the existence of such a remedy

[must be] consistent with the underlying purpose of the legislative scheme.” In re

Wage Payment Litig., 2000 ME 162, ¶ 8, 759 A.2d 217, 222 (Me. 2000).

The Plaintiff is requesting that I find a private right of action in a state

statute—a question that the Law Court has not yet addressed. It is generally not the

role of federal courts to make new state law or expand state law. See Jordan v.

Hawker Dayton Corp., 62 F.3d 29, 32 (1st Cir. 1995); Pimentel v. City of Methuen, 323

F. Supp. 3d 255, 274 (D. Mass. 2018) (“[I]t is emphatically not the role of the federal

courts to develop and expand upon state law. If this Court were to conclude that such

a right existed, no Massachusetts court would have an opportunity to consider that

decision—including, among other things, an opportunity to consider the wisdom of

the policy embedded in such a decision and the potential consequences for litigants

and the courts.”); Dionne v. Amatucci, Civil No. 10–cv–230–PB, 2011 WL 4915550, at

*7 (D.N.H. Oct. 17, 2011) (“Litigants who choose a federal forum . . . cannot expect a

federal court to push the boundaries of state law.”)

Given the lack of evidence that the Maine Legislature intended to create a

private right of action and the novelty of this state law question, I decline to exercise

supplemental jurisdiction over Count IX. See 28 U.S.C. § 1367 (“The district courts

may decline to exercise supplemental jurisdiction over a claim . . . if (1) the claim

raises a novel or complex issue of State law . . . .”). Count IX is thus dismissed.

CONCLUSION

For the reasons stated above, the Court GRANTS IN PART and DENIES IN

PART the Defendants’ motion to dismiss (ECF No. 8). Counts I–II and IX–X are

DISMISSED. Counts III–VIII, and XI21 are not dismissed.

SO ORDERED.

/s/ Nancy Torresen

United States District Judge

Dated this 18th day of August, 2021.

21 Any claim against Defendant Renna under Count XI is dismissed.