The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DANIEL L. CHASE, )
)
Plaintiff, )
)
v. ) No. 1:20-cv-00287-JAW
)
CITY OF BANGOR, et al., )
)
Defendants. )
ORDER AFFIRMING THE RECOMMENDED DECISION OF THE
MAGISTRATE JUDGE
On August 6, 2020, Daniel Chase filed a pro se complaint against the City of
Bangor and eight Bangor police officers (Defendants) in connection with an incident
in which he was allegedly “repeatedly assaulted by Bangor officers.” Compl. at 4
(ECF No. 1). On July 30, 2021, the Court affirmed the recommended decision of the
Magistrate Judge to grant in part and deny in part the Defendants’ motion to dismiss.
Order Affirming the Recommended Decision of the Magistrate Judge (ECF No. 34)
(Order Affirming Recommended Decision on Mot. to Dismiss); see also Order on Mot.
for Leave to Amend Compl. and Mot. to Appoint Counsel/Recommended Decision on
Defs.’ Mot. to Dismiss at 1 (ECF No. 18). Pursuant to that order the Court dismissed
all claims except Mr. Chase’s Americans with Disabilities Act (ADA) claim against
the city of Bangor and Mr. Chase’s excessive force claim against Officer Jeffrey
Kinney pursuant to 42 U.S.C. § 1983. See Order Affirming Recommended Decision
on Mot. to Dismiss at 4.
On August 3, 2021, the remaining Defendants, Jeffrey Kinney and the city of
Bangor, filed a notice of intent to file a motion for summary judgment. Defs., City of
Bangor and Jeffrey Kinney’s Notice of Intent to File Mot. for Summ. J. and Need for
Pre-Filing Conference (ECF No. 35). On September 2, 2021, the Court held a Local
Rule 56(h) pre-filing conference with the parties. Min. Entry (ECF No. 38). On
September 14, 2021, the Defendants filed their motion for summary judgment with
supporting exhibits, Defs., City of Bangor and Jeffrey Kinney’s Joint Mot. for Summ.
J. (ECF No. 39), and their statement of material facts, Defs., City of Bangor and
Jeffrey Kinney’s, Joint Statement of Material Facts (ECF No. 40). Mr. Chase did not
respond to the Defendants’ motion for summary judgment.
On November 16, 2021, the Magistrate Judge issued a recommended decision
on the Defendants’ motion for summary judgment recommending that the Court
grant summary judgment in favor of the Defendants. Recommended Decision on
Defs.’ Mot. for Summ. J. at 8 (ECF No. 41) (Recommended Decision). After admitting
all the Defendants’ facts pursuant District of Maine Local Rule 56,1 see Recommended
Decision at 1-2 & n.1, the Magistrate Judge concluded that Officer Kinney was
entitled to summary judgment on Mr. Chase’s excessive force claim, and that the city
1 The Court agrees with the Magistrate Judge’s treatment of the facts under Local Rule 56.
Because Mr. Chase did not respond to the Defendants’ motion for summary judgment, and therefore
did not contest the Defendants’ statements of material fact, it was proper for the Magistrate Judge to
admit all of the Defendants’ facts, which are adequately supported by record citations. See also Perez-
Corder v. Wal-Mart P.R., 440 F.3d 531, 533-34 (1st Cir. 2006) (“When a non-moving party fails to file
a timely opposition to an adversary’s motion for summary judgment, the court may consider the
summary judgment motion unopposed, and take as uncontested all evidence presented with that
motion. While an unopposed summary judgment motion still must be scrutinized in accordance with
Fed. R. Civ. P. 56, . . . [i]n most cases, a party’s failure to oppose summary judgment is fatal to its
case”).
of Bangor was entitled to summary judgment on Mr. Chase’s Americans with
Disabilities Act claim. See id. at 4-8.
Regarding Mr. Chase’s excessive force claim against Officer Kinney, the
Magistrate Judge concluded that under the reasonableness factors enumerated in
Graham v. Connor, 490 U.S. 386, 388 (1989), “[a] reasonable fact finder could not
make an excessive force determination [in this case] because the facts show nothing
more than use of that ‘“degree of physical coercion” typically attendant to an arrest.’”
Recommended Decision at 4-5 (quoting Pena-Borrero v. Estremeda, 365 F.3d 7, 12 (1st
Cir. 2004)). Citing the factual record, the Magistrate Judge reasoned that Mr. Chase
“refused to comply with the officers’ directives” and “kicked Defendant Kinney,” at
which point “Defendant Kinney took Plaintiff to the ground and decided to handcuff
him.” Id. at 5. However, “[r]ather than use one set of handcuffs, Defendant Kinney
used two sets to accommodate Plaintiff’s concern about being handcuffed in the back.”
Id. The Magistrate Judge further reasoned that even if Officer Kinney had not acted
in an objectively reasonable manner, he would nonetheless be entitled to qualified
immunity because it was not “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.” Id. at 5 n.2.
The Magistrate Judge also recommended granting summary judgment on Mr.
Chase’s ADA claim in favor of the city of Bangor. The Magistrate Judge concluded
that the facts did not support Mr. Chase’s “accommodation” claim under Title II of
the ADA based on the manner in which Mr. Chase was handcuffed. See id. at 7-8.
The Magistrate Judge explained that based on the record, “Defendant Kinney
granted Plaintiff’s request not to be handcuffed behind his back and thus
accommodated Plaintiff’s disability.” Id. at 7. The Magistrate Judge noted in
particular that “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.” Id. at 7-8. The Magistrate Judge concluded
that “[g]iven the lack of record evidence to the contrary, there is no issue or trial-
worth controversy regarding the reasonableness of the accommodation Defendant
Kinney provided.” Id. at 8.
Neither Mr. Chase nor the Defendants objected to the Magistrate Judge’s
Recommended Decision and, as just described, the Court views the Magistrate
Judge’s factual findings and legal analysis as compelled by the record before him.
The Court reviewed and considered the Magistrate Judge’s Recommended
Decision, together with the entire record, and made a de novo determination of all
matters adjudicated by the Magistrate Judge’s Recommended Decision. The Court
concurs with the recommendations of the Magistrate Judge for the reasons set forth
in his Recommended Decision.
1. The Court AFFIRMS the Recommended Decision of the
Magistrate Judge (ECF No. 41).
2. The Court GRANTS the Defendants’ Motion for Summary
Judgment (ECF No. 39)
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 7th day of March, 2022