CHASE v. CITY OF BANGOR

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

DANIEL L. CHASE, )

)

Plaintiff, )

)

v. ) 1:20-cv-00287-JAW

)

CITY OF BANGOR, et al., )

)

Defendants )

RECOMMENDED DECISION ON DEFENDANTS’

MOTION FOR SUMMARY JUDGMENT

In his amended complaint, Plaintiff alleged that various defendants violated his

constitutional rights and the Americans with Disabilities Act (ADA) in connection with

Plaintiff’s arrest in April 2018. (Complaint, ECF No. 1.) On Defendants’ motion to

dismiss, the Court dismissed Plaintiff’s claims except for Plaintiff’s claim against

Defendant City of Bangor under Title II of the ADA and Plaintiff’s claim against

Defendant Kinney for excessive force. (Recommended Decision, ECF No. 18; Order

Affirming Recommended Decision, ECF No. 34.) The matter is before the Court on

Defendants’ motion for summary judgment. (Motion, ECF No. 39.)

Following a review of Defendants’ motion and the record, I recommend the Court

grant Defendants’ motion for summary judgment.

BACKGROUND FACTS1

During the evening of April 16, 2018, Plaintiff was stopped for an expired

registration on the motor vehicle he was operating. (DSMF ¶¶ 1, 5.) Plaintiff pulled his

vehicle into a private driveway and exited the vehicle. (Id. ¶ 3.) Defendant Kinney

instructed Plaintiff to return to his vehicle, but he did not and approached Defendant

Kinney. (Id. ¶¶ 4, 6.)

When Plaintiff was within arm’s reach of Defendant Kinney, Defendant Kinney

pushed him out of arm’s reach using an open-handed push. (Id. ¶¶ 7, 8.) Defendant Kinney

decided to arrest Plaintiff and tried to gain control of Plaintiff’s hands, but Plaintiff was

non-compliant. (Id. ¶ 9.) Defendant Kinney threatened use of a spray to gain compliance,

but he did not use the spray. (Id. ¶ 10.) As Defendant Kinney attempted to gain control of

Plaintiff’s hands, Plaintiff kicked Defendant Kinney in the shin; Defendant Kinney then

decided to take Plaintiff to the ground for safety reasons. (Id. ¶¶ 12, 13.)

Plaintiff requested not to be handcuffed and subsequently asked to be handcuffed in

front. (Id. ¶ 17.) Defendant Kinney used two sets of handcuffs to place Plaintiff’s hands

at his sides, which was a position Defendant Kinney observed Plaintiff maintain his hands

prior to application of the handcuffs. (Id. ¶¶ 18-20.) Defendant Kinney believed the

1 The facts are derived from Defendants’ statement of material facts (DSMF, ECF No. 40). District of Maine

Local Rule 56 requires that as part of the summary judgment practice, the parties file statements of material

facts “as to which the moving party contends there is no genuine issue of material fact.” D. Me. Loc. R.

56(b). A party who opposes a motion for summary judgment must “admit, deny or qualify the facts by

reference to each numbered paragraph of the moving party’s statement of material facts and unless a fact is

admitted, shall support each denial or qualification by a record citation as required by [Local Rule 56].” D.

Me. Loc. R. 56(c). Plaintiff has not complied with Local Rule 56. The facts, therefore, are derived from

Defendants’ statement of material facts.

handcuffs were necessary for his safety and that use of two sets of handcuffs would not

injure Plaintiff. (Id. ¶ 20.) Plaintiff sustained no injury and refused medical treatment at

the scene. (Id. ¶¶ 14, 15.)

SUMMARY JUDGMENT STANDARD

“The court shall grant summary judgment if the movant shows that there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter

of law.” Fed. R. Civ. P. 56(a). “After the moving party has presented evidence in support

of its motion for summary judgment, ‘the burden shifts to the nonmoving party, with

respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact

reasonably could find in his favor.’” Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st

Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir.1998)).

A court reviews the factual record in the light most favorable to the non-moving

party, resolving evidentiary conflicts and drawing reasonable inferences in the non-

movant’s favor. Hannon v. Beard, 645 F.3d 45, 47-48 (1st Cir. 2011). If the court’s review

of the record reveals evidence sufficient to support findings in favor of the non-moving

party on one or more of his claims, there exists a trial-worthy controversy and summary

judgment must be denied as to the supported claims. Unsupported claims are properly

dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) (“One of the principal

purposes of the summary judgment rule is to isolate and dispose of factually unsupported

claims or defenses.”).

DISCUSSION

A. Excessive Force Claim

Plaintiff contends Defendant Kinney applied excessive force when he took him

down to the ground and applied two sets of handcuffs. The Fourth Amendment prohibits

unreasonable searches and seizures and provides that no warrant shall issue except on a

showing of probable cause. U.S. Const. amend. IV. Excessive force claims are evaluated

under the Fourth Amendment’s “objective reasonableness” standard. Graham v. Connor,

490 U.S. 386, 388 (1989). “Determining whether the force used to effect a particular

seizure is ‘reasonable’ under the Fourth Amendment requires a careful balancing of ‘the

nature and quality of the intrusion on the individual’s Fourth Amendment interests’ against

the countervailing governmental interests at stake.” Id. at 396 (some internal quotation

marks omitted) (quoting United States v. Place, 462 U.S. 696, 703 (1983)). In the context

of force applied to make an arrest, the relevant factors for consideration include “the

severity of the crime at issue, whether the suspect poses an immediate threat to the safety

of the officers or others, and whether he is actively resisting arrest or attempting to evade

arrest by flight.” Id. (the so-called Graham factors).

“The ‘reasonableness’ of a particular use of force must be judged from the

perspective of a reasonable officer on the scene, rather than with the 20/20 vision of

hindsight.” Graham, 490 U.S. at 396. A court’s assessment must also account for the fact

that “police officers are often forced to make split-second judgments—in circumstances

that are tense, uncertain, and rapidly evolving—about the amount of force that is necessary

in a particular situation.” Id. at 396 – 97. The test is an objective one: courts ask “whether

the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances

confronting them, without regard to their underlying intent or motivation.” Id. at 397.

The record establishes that when Plaintiff refused to comply with the officers’

directives and continued to approach Defendant Kinney, Defendant Kinney pushed

Plaintiff with an open hand. After Plaintiff kicked Defendant Kinney, Defendant Kinney

took Plaintiff to the ground and decided to handcuff him. Rather than use one set of

handcuffs, Defendant Kinney used two sets to accommodate Plaintiff’s concern about

being handcuffed in the back. The record lacks any evidence of injury to Plaintiff.

A reasonable fact finder could not make an excessive force determination because

the facts show nothing more than use of that “‘degree of physical coercion’ typically

attendant to an arrest.” Pena-Borrero v. Estremeda, 365 F.3d 7, 12 (1st Cir. 2004) (quoting

Graham, 490 U.S. at 396.) Defendant Kinney, therefore, is entitled to summary judgment

on Plaintiff’s excessive force claim.2

B. ADA Claim

In his amended complaint, Plaintiff alleges that the City of Bangor satisfied its

obligations under Title II of the ADA, which provides that “no qualified individual with a

disability shall, by reason of such disability, be excluded from participation in or be denied

2 Even if the record generated a factual issue in dispute as to whether Defendant Kinney’s actions were

objectively reasonable, Defendant Kinney would be entitled to qualified immunity. A government official

is entitled to qualified immunity unless she or he violates a constitutional right that was “clearly established”

when they engaged in the conduct at issue. Hunt v. Massi, 773 F.3d 361, 367 (1st Cir. 2014). “[T]he clearly

established law must be ‘particularized’ to the facts of the case.” White v. Pauly, 137 S. Ct. 548, 552 (2017).

The Court is not aware of any authority that clearly established that an officer who takes an individual to

the ground after the individual kicked the officer, who uses two sets of handcuffs to handcuff the individual

more comfortably, and who does not injure the individual, violated clearly established law regarding the

appropriate use of force under the circumstances.

the benefits of the services, programs, or activities of a public entity, or be subjected to

discrimination by any such entity.” 42 U.S.C. § 12132. The First Circuit has noted that

“the services, programs, and activities of a municipal police department are generally

subject to the provisions of Title II of the ADA.” Gray v. Cummings, 917 F.3d 1, 16 (1st

Cir. 2019) (citing Haberle v. Troxell, 885 F.3d 170, 179-80 (3d Cir. 2018); Gorman v.

Barth, 152 F.3d 907, 912 (8th Cir. 1998)). As explained in the recommended decision on

Defendants’ motion to dismiss, however, several questions exist regarding the extent to

which Title II applies to Plaintiff’s encounter with Defendant Kinney. (Recommended

Decision at 12-16.)

Assuming, as the First Circuit did in Gray, that Title II applies, to prevail on his

claim, Plaintiff must establish

(1) that he is a qualified individual with a disability; (2) that he was either

excluded from participation in or denied the benefits of some public entity’s

services, programs, or activities or was otherwise discriminated against; and

(3) that such exclusion, denial of benefits, or discrimination was by reason

of the plaintiff’s disability.

Buchanan v. Maine, 469 F.3d 158, 170-71 (1st Cir. 2006) (quoting Parker v. Universidad

de Puerto Rico, 225 F.3d 1, 5 (1st Cir. 2000)).

Courts have recognized at least two types of Title II claims applicable to

arrests: (1) wrongful arrest, where police wrongly arrest someone with a

disability because they misperceive the effects of that disability as criminal

activity; and (2) reasonable accommodation, where, although police properly

investigate and arrest a person with a disability for a crime unrelated to that

disability, they fail to reasonably accommodate the person’s disability in the

course of investigation or arrest, causing the person to suffer greater injury

or indignity in that process than other arrestees.

Sheehan v. City & Cnty. of San Francisco, 743 F.3d 1211, 1232 (9th Cir. 2014) (citing

Waller ex rel. Estate of Hunt v. City of Danville, 556 F.3d 171, 174 (4th Cir. 2009); Gohier

v. Enright, 186 F.3d 1216, 1220–21 (10th Cir. 1999)).

If the Court assumes Plaintiff is disabled due to a back condition as alleged in the

amended complaint, the principal issue is whether Plaintiff can satisfy the second element

of a Title II claim. As discussed in the recommended decision, the First Circuit has

identified two general theories for meeting the second prong of a claim under Title II when

an officer is alleged to have violated the ADA in executing an arrest:

The first such theory (which we shall call the “effects” theory) holds that a

violation may be found when “police wrongly arrested someone with a

disability because they misperceived the effects of that disability as criminal

activity.” Gohier v. Enright, 186 F.3d 1216, 1220 (10th Cir. 1999). The

second such theory (which we shall call the “accommodation” theory) holds

that a violation may be found when police officers “properly investigated and

arrested a person with a disability for a crime unrelated to that disability, [but]

they failed to reasonably accommodate the person’s disability in the course

of the investigation or arrest, causing the person to suffer greater injury or

indignity in that process than other arrestees.” Id. at 1220-21.

Gray, 917 F.3d at 15. (Recommended Decision at 14-15.)

On Defendants’ motion to dismiss, the Court determined that Plaintiff’s allegations

did not support an “effects” claim, but could support an “accommodation” claim based on

the manner in which Plaintiff was handcuffed. (Recommended Decision at 15-16.) The

summary judgment record establishes that Defendant Kinney granted Plaintiff’s request

not to be handcuffed behind his back and thus accommodated Plaintiff’s disability.

Defendant Kinney used two sets of handcuffs to place Plaintiff’s hands at his sides, a

position Plaintiff placed his hands voluntarily without apparent discomfort before he was

handcuffed. Given the lack of record evidence to the contrary, there is no issue or trial-

worthy controversy regarding the reasonableness of the accommodation Defendant Kinney

provided. Accordingly, Defendant City of Bangor is entitled to summary judgment on

Plaintiff’s ADA claim.

CONCLUSION

Based on the foregoing analysis, I recommend the Court grant Defendants’ motion

for summary judgment and enter judgment in favor of Defendants on Plaintiff’s remaining

claims.

NOTICE

A party may file objections to those specified portions of a magistrate

judge’s report or proposed findings or recommended decisions entered

pursuant to 28 U.S.C. 636(b)(1)(B) for which de novo review by the district

court is sought, together with a supporting memorandum, within fourteen (14)

days of being served with a copy thereof. A responsive memorandum shall

be filed within fourteen (14) days after the filing of the objection.

Failure to file a timely objection shall constitute a waiver of the right

to de novo review by the district court and to appeal the district court's order.

/s/ John C. Nivison

U.S. Magistrate Judge

Dated this 16th day of November, 2021.