# COHEN v. CITY OF PORTLAND

> District Court, D. Maine · May 4, 2022

URL: https://www.frixlaw.com/law-library/cases/10211411

## Case

- **Court:** District Court, D. Maine
- **Decided:** May 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10211411

## How later opinions describe it (automated extraction)

- explaining that discretionary function immunity does not apply where “the defendant's egregious conduct clearly exceeded, as a matter of law, the scope of any discretion he could have possessed in his official capacity as a police officer” (emphasis deleted)

## Opinion text

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE

JOHN COHEN, )
)
Plaintiff, )
)
v. ) Docket No. 2:21-cv-00267-NT
)
CITY OF PORTLAND, et al., )
)
Defendants. )

ORDER ON DEFENDANTS’ MOTION TO DISMISS
Before me is the Defendants’ motion to dismiss the Plaintiff’s Fourth Amended
Complaint (the “Complaint”). Defs.’ Mot. to Dismiss (“MTD”) (ECF No. 28).1 For the
reasons stated below, the motion is GRANTED IN PART and DENIED IN PART.
FACTUAL BACKGROUND2
It was shortly after 1:00 p.m. on April 12, 2020, when the Portland Police
Department received a 911 call about a male subject, Eric Cohen, who had just

1 I held a conference of counsel on April 27, 2022, during which I granted the Plaintiff’s oral
motion to amend his complaint for the purpose of referencing certain exhibits he wished for me to
consider in evaluating the Defendants’ motion to dismiss (ECF No. 38). At the conference, the parties
agreed that I should treat the Defendants’ motion to dismiss the Plaintiff’s Third Amended Complaint
(“MTD”) (ECF No. 28) as a motion to dismiss the Plaintiff’s Fourth Amended Complaint (the
“Complaint”) (ECF No. 39).
2 The facts below are drawn from the allegations in the Complaint, which I take as true for the
purpose of deciding a motion to dismiss. Alston v. Spiegel, 988 F.3d 564, 571 (1st Cir. 2021). In addition,
the Plaintiff asks me to consider three exhibits attached to his opposition to the Defendants’ motion:
the body camera footage of the incident at issue here (the “Bodycam Video”); the Portland Police
Department’s Standard Operating Procedure regarding “Mental Health Crisis Intervention and
Protective Custody” (the “Mental Health SOP”); and the Police Department’s Standard Operating
Procedure regarding “Law Enforcement Role and Authority” (the “Role and Authority SOP”). See
Pl.’s Obj. to MTD Exs. 1–3 (ECF Nos. 30-1, 30-2, and 30-3). “Ordinarily, [on a motion to dismiss,] a
court may not consider any documents that are outside of the complaint, or not expressly incorporated
therein . . . .” Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001). The
First Circuit recognizes “narrow exceptions” to this rule “for documents the authenticity of which are
assaulted his girlfriend, was pacing around naked, and appeared to be in the midst
of a mental health crisis. Fourth Am. Compl. (“Compl.”) ¶ 11 (ECF No. 26). The 911
caller reported that Cohen had fled toward Interstate 295, in the direction of the Back

Cove. Compl. ¶ 11. When the police arrived, at approximately 1:23 p.m., they chased
Cohen into the frigid, shallow waters of the Back Cove. Compl. ¶¶ 13, 52.3 The air
temperature at that time was around forty-three degrees and the water temperature
was around forty-one degrees. Compl. ¶ 14.
At 1:23 p.m., Defendant Christopher Gervais of the Portland Police requested
a boat, the Marine 3, from the Portland Fire Department for a water rescue. Compl.
¶¶ 16–17. Gervais and two other officers then drove from the Back Cove to the Maine

State Pier where the Marine 3 was docked; this took approximately eleven minutes.
Compl. ¶¶ 16–18.
At 1:33 p.m. Defendant Michael Rand of the Portland Police arrived at the
Back Cove and spoke with Officer Blake Cunningham, a former U.S. Coast Guard

not disputed by the parties; for official public records; for documents central to plaintiffs’ claim; or for
documents sufficiently referred to in the complaint.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993).
The Defendants do not dispute the authenticity of any of the exhibits, which are specifically referred
to in the Complaint and central to the Complaint. See Compl. ¶¶ 49–50. I note that the Mental Health
SOP and the Role and Authority SOP are also official documents posted to a government website. See
Kader v. Sarepta Therapeutics, Inc., Civil Action No. 1:14-cv-14318-ADB, 2016 WL 1337256, at *11 (D.
Mass. Apr. 5, 2016). I conclude that the exhibits are appropriate to consider.
3 The circumstances surrounding Cohen’s decision to enter the water are not entirely clear.
While the Complaint asserts that the Portland Police Department “chas[ed] . . . Cohen into the . . .
water[ ],” Compl. ¶ 52, at another point the Complaint merely asserts, “Eventually, officers arrived
and traveled to the Back [Cove], where at approximately 1:23 p.m., Mr. Cohen had entered the . . .
water[ ]. Compl. ¶ 13. In the Bodycam Video, Officer Cunningham, who was present at the beginning
of the incident, answers in the affirmative when asked whether the police officers had been “chasing
[Cohen] or something.” At this stage, taking the alleged facts as true and making all reasonable
inferences in the Plaintiff’s favor, I credit the Plaintiff’s assertion that the police chased Cohen into
the water.
swimmer, who was standing on the shore. Compl. ¶¶ 19, 20, 33. Cunningham told
Rand: “The problem is, this guy has about fifteen minutes to live. If he begins to
struggle, I will strip . . . , [and] go in and cover him.” Compl. ¶ 20. Rand responded:

“We should have the fire boat right off, but I understand what you gotta do.” Compl.
¶ 20.
By 1:39 p.m., approximately nine police officers and fire-rescue personnel,
along with a K-9 unit, lined the shore. Compl. ¶¶ 22–24. One officer stood with a less-
than-lethal weapon drawn. Compl. ¶ 25. Rand stated to his fellow officers, “[Cohen]
has done a good job of staying afloat in this temperature for so long.” Compl. ¶ 22. At
that point, Cohen was thirty feet offshore and in waist-deep water. Compl. ¶ 22. Rand

turned to Cunningham and said, “I don’t want you going out there [and] fighting with
him.” Cunningham responded, “I have watched a lot of people drown and it’s not long
now.” Compl. ¶ 27. “Oh, I know,” replied Rand. Compl. ¶ 27. After a pause, Rand
continued, “If they have a life jacket or anything of that sort you can put on, I’d be
okay with it, but I don’t want you going out there without it.” As other first responders
arrive on the scene, Rand began to ask around whether anyone had a life jacket

available. Defendant Ronald Giroux of the Portland Fire Department yelled from the
shore, “I will kick his ass if he comes out of the water.” Compl. ¶¶ 8, 26. Thus far into
the incident, no personnel on the shore made any attempt to rescue Cohen. Compl. ¶
28.
At 1:42 p.m., Cunningham reported that Cohen had gone under the water.
Compl. ¶ 29. Cunningham remarked: “He is dead,” to which Rand responded, “Yup.”
Compl. ¶ 30. At 1:45 p.m., Cunningham again offered to go rescue Cohen, stating: “If
you give me a life jacket, I’ll go save this guy’s life.” Compl. ¶ 33. Rand agreed to allow
Cunningham to enter the water. Compl. ¶ 33. But, just as Cunningham began

removing his tactical vest, the Marine 3 reported that it was about 100 feet from
Cohen. Compl. ¶¶ 33–34. Rand told Cunningham not to enter the water because
Marine 3 was nearing the body. Compl. ¶ 35.
At 1:46 p.m., twenty-three minutes after Cohen entered the water, Rand asked
whether an ambulance was en route. Compl. ¶ 36. None had yet been assigned, and
so an ambulance was summoned. Compl. ¶ 37.
At 1:47 p.m., Gervais, who was on board the Marine 3, reported that the boat

had retrieved Cohen’s body. Compl. ¶ 38. Gervais was unable to find a pulse on
Cohen, though Rand stated that he saw “shallow breathing.” Compl. ¶ 39. At 1:49
p.m., Cohen was brought to shore. Compl. ¶ 40. He lay naked for almost two minutes
until a firefighter removed his jacket and put it around Cohen’s shoulders. Compl. ¶¶
40, 41, 43. Life-saving measures were not commenced until four minutes after he was
removed from the water. Compl. ¶ 45.

At 1:53 p.m., the ambulance arrived and emergency personnel administered
CPR and other resuscitating measures. Compl. ¶ 45. The ambulance left the Back
Cove at 2:26 p.m., and, at 2:52 p.m., Cohen was pronounced dead at Maine Medical
Center. Compl. ¶¶ 46–47. The Medical Examiner ruled that the causes of Cohen’s
death were drowning and hypothermia. Compl. ¶ 48.
The Portland Police Department’s Standard Operating Procedure regarding
“Mental Health Crisis Intervention and Protective Custody” (the “Mental Health
SOP”) emphasizes that when interacting with a person suspected to be experiencing

a mental health crisis, officers should utilize a crisis intervention team and attempt
de‐escalation techniques. Pl.’s Obj. to MTD Ex. 2, at 2 (ECF No. 30-2). In addition,
the Mental Health SOP states that all sworn officers must complete a forty-hour crisis
intervention training/certification program. Pl.’s Obj. to MTD Ex. 2, at 4. The Police
Department’s Standard Operating Procedure regarding “Law Enforcement Role and
Authority” (the “Role and Authority SOP”) states that, “[w]hile on duty, officers
shall at all times take appropriate action to . . . protect life . . . [and] provide

emergency first aid to the injured.” Pl.’s Obj. to MTD Ex. 3, at 4 (ECF No. 30-3).
Following Eric Cohen’s death, his father, John Cohen, brought suit as a
personal representative of his deceased son’s estate against the City of Portland and
Gervais, Rand, and Giroux, alleging numerous violations of state and federal law.
The Defendants now move to dismiss the Plaintiff’s Complaint for failure to state a
claim upon which relief can be granted.

LEGAL STANDARD
The Defendants’ motion to dismiss invokes Federal Rule of Civil Procedure
(“Fed. R. Civ. P.”) 12(b)(6). “[I]n adjudicating motions to dismiss under Rule 12(b)(6),
the district court must apply the notice pleading requirements of [Fed. R. Civ. P.]

8(a)(2).” Rivera v. Rhode Island, 402 F.3d 27, 33 (1st Cir. 2005). Under Rule 8(a)(2),
the complaint need only include “a short and plain statement of the claim showing
that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “This statement must
give the defendant fair notice of what the plaintiff's claim is and the grounds upon
which it rests.” Rivera, 402 F.3d at 33 (internal quotation marks omitted).

When evaluating a motion to dismiss, I take “as true all well-pleaded facts
alleged in the complaint and draw all reasonable inferences therefrom in the pleader’s
favor.” Alston v. Spiegel, 988 F.3d 564, 571 (1st Cir. 2021) (quoting Santiago v. Puerto
Rico, 655 F.3d 61, 72 (1st Cir. 2011)). “[A] complaint will survive a motion to dismiss
when it alleges ‘enough facts to state a claim to relief that is plausible on its face.’ ”
Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is
“plausible” if the facts alleged give rise to a reasonable inference of liability. Id.

“Plausible” means “more than merely possible.” Germanowski v. Harris, 854 F.3d 68,
71 (1st Cir. 2017) (quoting Schatz v. Republican State Leadership Comm., 669 F.3d
50, 55 (1st Cir. 2012)).
Importantly, “[i]n substantive due process cases, the Supreme Court has held
that such claims must be carefully scrutinized to determine if the alleged facts
support the conclusion that the state has violated an individual’s constitutional

rights.” Rivera, 402 F.3d at 33. This scrutiny entails two steps. First, I must assess
“whether the facts alleged state a claim for violation of constitutional rights.” Id.
Then, “[i]f such a claim is stated, there is a second inquiry as to whether the
allegations meet the separate set of requirements as to particular categories of
defendants to establish a claim within 42 U.S.C. § 1983.” Id.
DISCUSSION
I. Substantive Due Process and the State-Created Danger Doctrine
The Plaintiff alleges that the City of Portland, Gervais, Rand, and Giroux
deprived Cohen of his life in violation of the state and federal constitutions.4 Compl.

¶¶ 52, 57, 79, 101. In Counts I, II, VI and X, the Complaint alleges that the
Defendants violated the Fourteenth Amendment, which states that “[n]o State shall
. . . deprive any person of life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. In Counts IV, VIII, and XII, the Plaintiff alleges violations of
state and federal constitutional rights under the Maine Civil Rights Act (the
“MCRA”), 5 M.R.S.A. § 4682.5 “The MCRA . . . is ‘patterned’ after Section 1983. As
such, disposition of a claim under Section 1983 controls a claim brought under [the]

MCRA.” Jackson v. Town of Waldoboro, 751 F. Supp. 2d 263, 275 (D. Me. 2010)
(internal citation omitted); accord Abdisamad v. City of Lewiston, 960 F.3d 56, 61 n.2
(1st Cir. 2020).
The Due Process Clause has both procedural and substantive components.
In its procedural aspect, due process ensures that government, when
dealing with private persons, will use fair procedures. In its substantive

4 The mechanism for redressing violations of the U.S. Constitution is found in 42 U.S.C. § 1983.
See Freeman v. Town of Hudson, 714 F.3d 29, 37 (1st Cir. 2013). Section 1983 provides in pertinent
part: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any
State . . . subjects, or causes to be subjected, any citizen of the United States, or other person within
the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the
Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other
proper proceeding for redress . . . .” 42 U.S.C. § 1983. The Complaint does not mention Section 1983 in
Counts I, II, VI, orX, which it styles “Due Process” claims, but it styles Counts III, VII, and XI, which
are based on alleged violations of the Eighth Amendment, as “Section 1983” claims. I will assume that
all claims asserting violations of the federal Constitution are brought under Section 1983.
5 Title 5 M.R.S. § 4682, like 42 U.S.C. § 1983, “provides a general remedy for violations of federal
and state constitutional and statutory rights.” Jackson v. Town of Waldoboro, 751 F. Supp. 2d 263,
275 (D. Me. 2010).
aspect, due process safeguards individuals against certain offensive
government actions, notwithstanding that facially fair procedures are
used to implement them.
DePoutot v. Raffaelly, 424 F.3d 112, 118 (1st Cir. 2005) (internal citation omitted).
Generally, “a State’s failure to protect an individual against private violence . . . does
not constitute a violation of the Due Process Clause.” DeShaney v. Winnebago Cnty.
Dep’t of Soc. Servs., 489 U.S. 189, 197 (1989); see also Souza v. Pina, 53 F.3d 423, 427
(1st Cir. 1995) (“[T]he Due Process Clause does not require the state to protect
citizens from ‘private violence’ in whatever form, including suicide.”). There is,
however, an exception to this general rule. A substantive due process violation may
occur where officers “fail[ ] to protect plaintiffs from danger created or enhanced by

[the officers’] affirmative acts.” Irish v. Fowler, 979 F.3d 65, 67 (1st Cir. 2020), cert.
denied, 142 S. Ct. 74 (2021). To make out a cognizable state-created danger claim, the
plaintiff must allege:
“(1) that a state actor or state actors affirmatively acted to create or
enhance a danger to the plaintiff;

(2) that the act or acts created or enhanced a danger specific to the
plaintiff and distinct from the danger to the general public;

(3) that the act or acts caused the plaintiff’s harm; and

(4) that the state actor’s conduct, when viewed in total, shocks the
conscience.”
Id. at 75; see also Abdisamad, 960 F.3d at 59–60 (explaining that a cognizable
substantive due process claim must allege facts that are so extreme and egregious
that they shock the contemporary conscience).
I interpret the Complaint to be asserting substantive due process, state-
created danger claims in Counts I, II, VI, and X under § 1983 and under the MCRA
in Counts IV, VIII, and XII. These Counts are premised on the Plaintiff’s contention

that the Defendants “created a significant danger to Mr. Cohen.” Compl. ¶¶ 52, 57,
79, 101. The Defendants contend that Count I, asserted against the City, fails because
it does not adequately allege a basis for municipal liability, and that Counts II, VI,
and X (and the related MCRA claims), asserted against the individual Defendants,
fail to state plausible state-created danger claims. MTD 5–14. The Defendants
further argue that even if the Complaint does allege viable state-created danger
claims, the individual Defendants are each entitled to qualified immunity. MTD 14–

17. I address the Defendants’ arguments in turn.
A. The Due Process Claim against the City of Portland (Count I)
The Defendants challenge Count I on the ground that it does not adequately
allege a basis for municipal liability. Local governments are “persons” who can be
held liable for civil rights violations pursuant to § 1983. Monell v. Dep’t of Soc. Servs.
of N.Y., 436 U.S. 658, 690 (1978). “But ‘liability can be imposed on a local government
only where that government’s policy or custom is responsible for causing the

constitutional violation or injury.’ ” Abdisamad, 960 F.3d at 60 (quoting Kelley v.
LaForce, 288 F.3d 1, 9 (1st Cir. 2002)). “Municipal liability ‘cannot be based on
respondeat superior but requires independent liability based on an unconstitutional
policy or custom of the municipality itself.’ ” Id. (quoting Dirrane v. Brookline Police
Dep’t, 315 F.3d 65, 71 (1st Cir. 2002)).
While there are several ways a municipality can be held liable, the Plaintiff’s
opposition to the motion to dismiss clarifies that the Plaintiff is pursuing a theory
that the City of Portland failed to train its officers. Pl.’s Obj. to Defs.’ MTD 5–6. “A

city’s policy of inadequately training its police force can serve as a basis for § 1983
liability if the city's failure to train ‘amounts to deliberate indifference to the rights
of persons with whom the police come into contact.’ ” Whitfield v. Meléndez-Rivera,
431 F.3d 1, 9–10 (1st Cir. 2005) (quoting City of Canton v. Harris, 489 U.S. 378, 388
(1989)). “[T]o state a claim for municipal liability, a plaintiff must plead more than
mere insufficiency of a municipality’s training program.” Marrero-Rodríguez v. Mun.
of San Juan, 677 F.3d 497, 503 (1st Cir. 2012). “[A] training program must be quite

deficient in order for the deliberate indifference standard to be met: the fact that
training is imperfect or not in the precise form a plaintiff would prefer is insufficient
to make such a showing.” Young v. City of Providence ex rel. Napolitano, 404 F.3d 4,
27 (1st Cir. 2005). “[D]eliberate indifference will be found where the municipality fails
to provide adequate training notwithstanding an obvious likelihood that inadequate
training will result in the violation of constitutional rights.” Whitfield, 431 F.3d at

10. “The plaintiff must also prove that ‘the deficiency in training actually caused the
police officers’ indifference’ to the public’s constitutional rights.” Id. (quoting City of
Canton, 489 U.S. at 391).
Though the Complaint is scarce on details regarding the deficiencies of the
City’s training program, it alleges sufficient facts to support a plausible claim for
municipal liability on a failure-to-train theory. The Complaint alleges that the
Portland Police Department was informed that Cohen was experiencing a mental
health crisis and that officers chased him into the frigid waters of the Back Cove.
Ultimately, nine officers and fire-rescue personnel and a police dog lined the shore

and watched Cohen, about thirty feet offshore, flounder in the water. Compl. ¶¶ 22–
24. The officers were aware that if Cohen remained in the water, he had a very limited
time to live, yet they made no attempts to coax Cohen out of the waist-deep water or
to rescue him using available equipment, such as a rope or ring. Compl. ¶ 28. Rather,
compounding the tension, one officer stood at the shore with a K-9 unit; another
officer stood with a weapon drawn; and Giroux yelled that he would “kick [Cohen’s]
ass if he c[ame] out of the water.” Compl. ¶¶ 23, 25–26. Although Cohen was in the

water for approximately twenty-four minutes, no ambulance was summoned until
moments before Cohen was removed from the water. Compl. ¶¶ 37–38. Once Cohen
was brought to shore, there was no equipment available to attend to him, not even a
blanket to warm him up. Compl. ¶ 41. Cohen remained naked for several minutes,
until a Portland Firefighter removed his jacket and placed it over Cohen’s upper body.
Compl. ¶ 43. Resuscitation efforts were not made until an ambulance arrived on the

scene, four minutes after Cohen was brought to shore. Compl. ¶ 45.
Taken together, these facts suggest that numerous members of the Portland
Police and Fire Departments were unprepared to deal with situations involving
people experiencing mental health crises and/or those in need of water rescue,
allowing me to draw an inference that the City failed to train its officers.
Furthermore, the Complaint plausibly alleges facts that allow me to infer that the
deficiency in training caused the officers’ indifference to Cohen’s constitutional rights,
ultimately leading to Cohen’s death. Thus, the motion to dismiss Count I is denied.
B. The Due Process Claims (Counts II, VI, and X) and MCRA Claims
(Counts IV, VIII, and XII) Based on Violations of Due Process
against Gervais, Rand, and Giroux
The Defendants contend that the Plaintiff fails to state a plausible substantive
due process claim against any of the individual Defendants. Specifically, the
Defendants contend that the state-created danger claims fail against the individual
Defendants because the Plaintiff voluntarily assumed the risks posed by entering the
frigid waters, and because the Complaint fails to allege affirmative acts by the
individual Defendants, as required under the state-created danger doctrine. MTD 9.

I begin with the concept that Cohen voluntarily assumed the risk of drowning
by entering the frigid waters of the Back Cove. Under the state-created danger
doctrine, a “government official must actually have created or escalated the danger
to the plaintiff and the plaintiff cannot have ‘voluntarily assume[d] those risks.’ ”
Irish, 979 F.3d at 74 (quoting Vélez-Díaz v. Vega-Irizarry, 421 F.3d 71, 81 (1st Cir.
2005)). The Defendants acknowledge that the Complaint alleges that the police
chased Cohen into the water, but they argue that “this vague allegation cannot

overcome the well-pled fact that Mr. Cohen entered Back Cove of his own accord.”
MTD 9. As discussed above, see supra note 3, both the Complaint and Cunningham’s
comment on the Bodycam Video support the allegation that the police were chasing
Cohen when he entered the water. Moreover, the Plaintiff has alleged that Cohen
appeared to be psychotic and/or suffering a mental health crisis. Neither party
addresses whether an individual in a psychotic state could have acted “voluntarily,”
and this is an area that would benefit from further factual and legal development. At
the motion to dismiss stage, I decline to state as a matter of law that, on the facts
alleged, no viable state-created danger claim is presented based on Cohen’s

assumption of risks.
The Defendants next assert that the Complaint fails to plausibly allege that
the state officials “created” the danger to Cohen and that the Plaintiff’s state-created
danger claim fails because “the focus of the [Complaint] is upon alleged failures to act
by various personnel, rather than affirmative acts as required to support a viable
state-created danger claim.” MTD 9. While the Defendants are correct that mere
“state inaction” is not cognizable as a substantive due process violation, see Rivera,

402 F.3d at 36 (internal quotation marks omitted), viewed in total and with all
inferences drawn for the Plaintiff, the Complaint plausibly alleges a series of
affirmative actions that created or enhanced the danger to Cohen sufficient to assert
a state-created danger claim against the City. But in asserting a § 1983 claim against
individual officers, a plaintiff must show that each officer’s own actions, “could give
rise to a state-created danger claim.” Welch v. City of Biddeford Police Dep’t, 12 F.4th

70, 75–76 (1st Cir. 2021) (“Officers are not liable under § 1983 for the actions of other
officers.”). Accordingly, I address the claims with respect to each individual
Defendant separately.
1. Christopher Gervais
I agree with the Defendants that the facts alleged in the Complaint do not
support a state-created danger claim as to Gervais. According to the Complaint, right
when Gervais arrived at the Back Cove he requested that the Fire Department
provide a rescue boat to assist Cohen. Compl. ¶¶ 13, 16. The Complaint alleges that
it took eleven minutes for Gervais to drive from the Back Cove to the Marine 3 rescue
boat, Compl. ¶ 17–18, but there are no facts indicating that the decision to meet the

Marine 3 or the length of the drive could be characterized as “conscience shocking.”
And, although Gervais’ efforts to rescue Cohen were ultimately unsuccessful, the
Complaint does not allege facts indicating that Gervais took any affirmative acts that
created or enhanced the danger to Cohen.6 Even if Gervais took too long to travel to
the rescue boat or negligently failed to provide first aid to Cohen once Cohen was
aboard, “mere negligence would be insufficient to maintain a claim of substantive due
process violation.” Abdisamad, 960 F.3d at 60 (internal quotation marks omitted).

Thus, the motion to dismiss Count II is granted. Because I have dismissed the
constitutional claim against Gervais under § 1983, and because disposition of a § 1983
claim controls a claim brought under the MCRA, the motion to dismiss the MCRA
count against Gervais (Count IV) is also granted.
2. Michael Rand
Though it is a closer question, I also find that the Plaintiff has not alleged
enough facts to establish a state-created danger substantive due process violation

against Rand. Specifically, the Complaint does not allege any affirmative acts on the
part of Rand that created or enhanced the danger to Cohen. The Complaint alleges
that Rand arrived at the Back Cove about ten minutes after Cohen entered the water

6 Notably, the Plaintiff does not respond to the Defendants’ argument that Gervais cannot be
held individually liable pursuant to § 1983.
and that he did not attempt to personally rescue Cohen or coax him out of the water.
While these are troubling details that raise questions about the Police Department’s
training on these matters, they do not rise to the level of affirmative acts. “Because

the line between an affirmative act and an omission may be difficult to draw, in
determining the affirmative act question, courts in other jurisdictions have analyzed
whether a government official’s alleged specific act placed the individual ‘in a position
of relatively less safety than [he or she] enjoyed before the affirmative act.’ ” Hayes v.
Town of Dalton, Case No. 3:21-cv-30055-KAR, 2022 WL 488466, at *6 (D. Mass. Feb.
17, 2022) (quoting Doe v. Round Valley Unified Sch. Dist., 873 F. Supp. 2d 1124, 1132
(D. Ariz. 2012)). Although the acts of the officers as a group arguably enhanced the

danger to Cohen, placing him in a position of relatively less safety, the Complaint
does not plausibly allege that Rand’s acts alone increased the danger to Cohen.
In addition, Rand’s discussions with Cunningham cannot support a state-
created danger claim. The Plaintiff asserts that Rand “prohibited Officer
Cunningham from rescuing Mr. Cohen multiple times.” Pl.’s Obj. to MTD 7–8. The
video, however, tells a different story. Cunningham offered to go in and rescue Cohen

three times. The first time, Rand did not forbid Cunningham from entering the water,
but rather told him “I understand what you gotta do.” Compl. ¶ 20. The video shows
that, a few minutes later, Cunningham offered to go in again and Rand agreed that
Cunningham could go in if he had a life jacket. Rand then called out to the other
officers present asking if anybody had a life jacket. The third time Cunningham
offered to go in, Rand affirmatively authorized him to enter the water. Compl. ¶ 33.
But, just as Cunningham began to remove his tactical vest, Marine 3 reported that it
was close by. Compl. ¶¶ 33–34. Rand then told Cunningham not to enter the water,
“since Marine Rescue 3 was nearing Mr. Cohen’s body.” Compl. ¶ 35. The video

provides support for the decision to have Cunningham stay on the shore as the boat
can be seen approaching Cohen just as Cunningham steps into the water. There is no
evidence that this single instance in which Rand prohibited Cunningham from
entering the water enhanced the danger to Cohen, as Marine 3 reported that it had
retrieved Mr. Cohen’s body just two minutes later. See Compl. ¶ 38 (stating that
Marine 3 reported that it had Mr. Cohen’s body on board at 1:47 p.m.). Because the
Complaint does not allege that Rand undertook any affirmative acts that created or

enhanced the danger to Cohen, the motion to dismiss Count VI is granted.7 Because
I have dismissed the constitutional claim against Rand under § 1983, and because
disposition of a § 1983 claim controls a claim brought under the MCRA, the motion
to dismiss the MCRA count against Rand (Count VIII) is also granted.
3. Ronald Giroux
The facts alleged in the Complaint are minimally sufficient to support the due
process claim against Giroux. According to the Complaint, Giroux shouted from the

shore, “I will kick his ass if he comes out of the water.” Compl. ¶ 26. The Defendants
levy two attacks on the due process claim against Giroux, but I do not find either
convincing. First, the Defendants argue that “[t]here is no allegation that Mr. Cohen

7 The Complaint does not allege that Rand was in command of the scene, although that inference
can be drawn from the video. But the Plaintiff makes no argument that Rand’s status as a commander
should change the analysis in any way.
even heard [Giroux’s] comment.” MTD 10. While the Complaint does not specifically
allege that Mr. Cohen heard this comment, at the motion to dismiss stage, I must
make all reasonable inferences in the Plaintiff’s favor. Here, I can infer that Cohen

heard Giroux’s comment.
Second, the Defendants assert that “Mr. Giroux cannot be held liable for simply
being present.” MTD 10. But the Plaintiff is not seeking to hold Giroux liable for
simply being present; rather, he has alleged facts demonstrating that Giroux’s
affirmative act, yelling a threat, enhanced the danger to Cohen. Moreover, this
affirmative act is at least arguably conscience-shocking, particularly since it was
made when Cohen was about to drown. Although “[f]ear or emotional injury which

results solely from verbal harassment or idle threats is generally not sufficient to
constitute an invasion of an identified liberty interest,” this “does not mean that
under no circumstances will verbal threats or harassment rise to the level of a
constitutional violation.” Pittsley v. Warish, 927 F.2d 3, 7 & n.3 (1st Cir. 1991),
abrogated on other grounds by Martinez v. Cui, 608 F.3d 54 (1st Cir. 2010). Conduct
that is “intended to injure in some way unjustifiable by any government interest is

the sort of official action most likely to rise to the conscience-shocking level.” Cnty. of
Sacramento v. Lewis, 523 U.S. 833, 849 (1998). Thus, while this is a close call given
the limited involvement of Giroux, the Plaintiff has plausibly alleged a state-created
danger claim as to Giroux.
The Defendants assert that if the Plaintiff has established a viable state-
created danger claim as to any of the individual Defendants, qualified immunity
should apply. MTD 14–15. “The doctrine of qualified immunity protects government
officials ‘from liability for civil damages insofar as their conduct does not violate
clearly established statutory or constitutional rights of which a reasonable person

would have known.’ ” Pearson v. Callahan, 555 U.S. 223, 231 (2009) (quoting Harlow
v. Fitzgerald, 457 U.S. 800, 818 (1982)). To overcome a qualified immunity defense, a
plaintiff suing government officials must “show (1) that [the officer violated] federal
rights and (2) that these rights were so clearly established that a reasonable officer
should have known how they applied to the situation at hand.” Justiniano v. Walker,
986 F.3d 11, 26 (1st Cir. 2021) (quoting Belsito Commc’ns, Inc. v. Decker, 845 F.3d 13,
23 (1st Cir. 2016)). Because I find that the Complaint plausibly alleges Giroux

violated Cohen’s substantive due process rights through affirmative acts that shock
the conscience, I go on to consider whether a reasonable officer in Giroux’s position
would have known his conduct violated clearly established law.
“A rule is clearly established either when it is ‘dictated by controlling authority
or a robust consensus of cases of persuasive authority.’ ” Irish, 979 F.3d at 76 (quoting
District of Columbia v. Wesby, 138 S. Ct. 577, 589–90 (2018)). “[A]lthough there need

not be a case directly on point, existing precedent must have placed the statutory or
constitutional question beyond debate.” Eves v. LePage, 927 F.3d 575, 583 (1st Cir.
2019) (en banc) (internal quotation marks omitted). “The salient question . . . is
whether the state of the law at the time of the defendants’ conduct gave them fair
warning that their alleged treatment of the plaintiffs was unconstitutional.” Irish,
979 F.3d at 76 (alteration in original) (quoting Hope v. Pelzer, 536 U.S. 730, 741
(2002)). In addition, “[a] defendant’s adherence to proper police procedure bears on
all prongs of the qualified immunity analysis.” Id. at 77. “A lack of compliance with
state law or procedure does not, in and of itself, establish a constitutional violation,

but when an officer disregards police procedure, it bolsters the plaintiff’s argument
both that an officer’s conduct ‘shocks the conscience’ and that ‘a reasonable officer in
the officer’s circumstances would have believed that his conduct violated the
Constitution.’ ” Id. (quoting Stamps v. Town of Framingham, 813 F.3d 27, 32 n.4 (1st
Cir. 2016)).
In Irish v. Fowler, the First Circuit held that the state-created danger doctrine
was clearly established as of 2015. Id. at 77–78. The Defendants acknowledge Irish’s

holding, but they argue that it does not preclude qualified immunity here. MTD 15.
First, the Defendants argue that “[t]his case does not involve any affirmative actions
by the Individual Defendants that created or enhanced a danger to Mr. Cohen.” MTD
15. Second, the Defendants assert that “a greater degree of particularity is required
when evaluating whether a right is clearly established” and that the factual
circumstances of Cohen’s death distinguish it from Irish and other “clearly

established” law. MTD 15 (internal quotation marks omitted). As for the first
argument, I disagree with the Defendants that this case does not involve affirmative
actions by Giroux that created or enhanced a danger to Cohen. The Complaint
adequately alleges that Giroux committed at least one affirmative act that created or
enhanced the danger to Cohen.
I am also not convinced by the Defendants’ second argument regarding the
degree of particularity required in defining the right in question. As the First Circuit
has explained, “judges must ‘not . . . define clearly established law at a high level of

generality’ . . . . Rather, a ‘more particularized’ inquiry is required.” Belsito Commc’ns,
845 F.3d at 23 (first alteration in original) (quoting Ashcroft v. al-Kidd, 563 U.S. 731,
742 (2011)). Here, the Defendants define the right at issue in Irish as “implicat[ing]
police decisions that created a risk to a witness in criminal case,” whereas they define
the right at issue in this case as “involv[ing] police decisions as to how to carry out a
rescue of a civilian who has waded into frigid waters after assaulting another person
. . . without endangering the lives of rescue personnel.” MTD 15.

As the First Circuit has warned, however:
[J]ust as a court can generalize too much, it can generalize too little. If
it defeats the qualified-immunity analysis to define the right too broadly
(as the right to be free of excessive force), it defeats the purpose of § 1983
to define the right too narrowly (as the right to be free of needless
assaults by left-handed police officers during Tuesday siestas).
Belsito Commc’ns, 845 F.3d at 23 n. 9 (quoting Hagans v. Franklin Cnty. Sheriff’s
Off., 695 F.3d 505, 508–09 (6th Cir. 2012)). To define the right at issue here so
narrowly would arguably tread dangerously close to undermining the purpose of
§ 1983. Moreover, Irish itself does not support as limited a definition as the
Defendants suggest. In Irish, the court emphasized that what was clearly established
was the state-created danger theory itself, the doctrine holding “that a state official
may incur a duty to protect a plaintiff where the official creates or exacerbates a
danger to the plaintiff.” Irish, 979 F.3d at 77. And, as the Irish court clarified, even
absent factually similar cases, “a general proposition of law may clearly establish the
violative nature of a defendant's actions, especially when the violation is egregious.”
Id. at 78. I am satisfied at this early stage in the litigation that Irish’s general
proposition of law clearly establishes the violative nature of Giroux’s actions.

Finally, the fact that officers violated state law or official procedure can lend
support to a finding that a reasonable officer would have known the conduct violated
constitutional rights. See id. at 77 (“A lack of compliance with state law or procedure
does not, in and of itself, establish a constitutional violation, but when an officer
disregards police procedure, it bolsters the plaintiff's argument . . . that ‘a reasonable
officer in [the officer's] circumstances would have believed that his conduct violated
the Constitution.’ ” (second alteration in original) (quoting Stamps, 813 F.3d at 32

n.4)). Although I do not know at this stage the policies and procedures of the Fire
Department (Giroux’s employer), I am hopeful that more discovery can shed light on
this issue.
The motion to dismiss Count X is denied. Because I find that the Plaintiff has
adequately alleged a due process violation against Giroux, the Motion to Dismiss the
MCRA claim (Count XII) is also denied.

II. Eighth Amendment (Counts III, VII, and XI)
The Plaintiff alleges that the individual Defendants (Gervais, Rand, and
Giroux) violated the Eighth Amendment of the U.S. Constitution. The Eighth
Amendment, which applies to the states through the Fourteenth Amendment, Zingg
v. Groblewski, 907 F.3d 630, 634–35 (1st Cir. 2018), prohibits “cruel and unusual
punishments,” U.S. Const. amend. VIII. However, “[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 in accordance with due process of law.” City of
Revere v. Mass. Gen. Hosp., 463 U.S. 239, 244 (1983) (quoting Ingraham v. Wright,
430 U.S. 651, 671–72 n.40 (1977)); accord Martínez-Rivera v. Sánchez Ramos, 498

F.3d 3, 9 (1st Cir. 2007); Marrero-Rodríguez, 677 F.3d at 501. Because the Complaint
does not allege that the state had secured a formal adjudication of guilt, or that Cohen
was otherwise incarcerated or in custody, when the events in question unfolded, the
Complaint fails to state a claim for violation of the Eighth Amendment.8 The motion
to dismiss Counts III, VII, and XI is granted.
III. Wrongful Death (Counts V, IX, and XIII)
The Defendants assert that the Plaintiff’s wrongful death claims against

Gervais, Rand, and Giroux should be dismissed because these Defendants are
entitled to discretionary function immunity. MTD 18–19. A claim for wrongful death
under Maine law is governed by 18-C M.R.S. § 2-807, which provides a cause of action
“[w]henever the death of a person is caused by a wrongful act, neglect or default, and
the act, neglect or default is such as would, if death had not ensued, have entitled the
party injured to maintain an action and recover damages in respect thereof.” 18-C
M.R.S. § 2-807(1). Tort claims brought under the wrongful death statute are subject

to the Maine Tort Claims Act (the “MTCA”), 14 M.R.S. § 8101 et seq. 18-C M.R.S. § 2-
807(4); Jackson, 751 F. Supp. 2d at 276. The MTCA confers absolute immunity on
government employees for “[p]erforming or failing to perform any discretionary
function or duty, whether or not the discretion is abused.” 14 M.R.S. § 8111(1)(C).

8 For the same reasons, any MCRA claims based on the Eighth Amendment also fail.
A four-part test is used to determine whether discretionary function immunity
applies:
(1) Does the challenged act, omission, or decision necessarily involve a
basic governmental policy, program[,] or objective?

(2) Is the questioned act, omission, or decision essential to the
realization or accomplishment of that policy, program, or objective as
opposed to one which would not change the course or direction of the
policy, program, or objective?

(3) Does the act, omission, or decision require the exercise of basic policy
evaluation, judgment, and expertise on the part of the governmental
agency involved?

(4) Does the governmental agency involved possess the requisite
constitutional, statutory, or lawful authority and duty to do or make the
challenged act, omission, or decision?
Lawson v. Willis, 2019 ME 36, ¶ 9, 204 A.3d 133 (per curiam) (alteration in original)
(quoting Darling v. Augusta Mental Health Inst., 535 A.2d 421, 426 (Me. 1987)).
Here, Gervais and Rand are entitled to discretionary function immunity.
“Actions taken by a law enforcement officer in response to an emergency implicate
the discretionary judgment of the officer and the immunity protecting governmental
entities and their employees extends to those actions.” Norton v. Hall, 2003 ME 118,
¶ 9, 834 A.2d 928. Immunity extends to both the decisions “whether to respond” and
“how to respond” to an emergency. Id. Moreover, the Plaintiff does not allege that the
Police Department lacked the requisite authority to make the challenged decisions.
The Plaintiff argues that the Defendants are not entitled to discretionary
function immunity because the Mental Health SOP and Role and Authority SOP
required the officers to respond in a specific way to the emergency, thus removing any
discretion on their parts. Pl.’s Obj. to MTD 10. But the Maine Law Court has held
that conduct “does not lose its discretionary character merely because there are policy
guidelines delineating how the discretion should be exercised.” Selby v. Cumberland
Cnty., 2002 ME 80, ¶ 10, 796 A.2d 678; accord Doucette v. City of Lewiston, 1997 ME

157, ¶ 6, 697 A.2d 1292. Thus, Gervais and Rand are entitled to discretionary function
immunity. The motion to dismiss Counts V and IX is granted.
I am not convinced, however, that Giroux is entitled to discretionary function
immunity. The MTCA’s immunity provision applies to discretionary acts committed
by government employees “within the scope of their employment.” Darling, 535 A.2d
at 424. “Immunity exists even when the official lacked the authority to do the act, or
abused the discretion,” but “[a] governmental official will not be shielded from

liability . . . for actions that so clearly exceed the scope of the official’s authority that
the official cannot be said to be acting in an official capacity.” Selby, 2002 ME 80, ¶ 6
& n.5, 796 A.2d 678 (emphasis deleted); see also Polley v. Atwell, 581 A.2d 410, 414
(Me. 1990) (explaining that discretionary function immunity does not apply where
“the defendant's egregious conduct clearly exceeded, as a matter of law, the scope of
any discretion he could have possessed in his official capacity as a police officer”

(emphasis deleted)). Here, the Defendants have not explained how Giroux’s conduct—
i.e., his decision to yell “I will kick his ass if he comes out of the water”—falls within
the scope of his employment or within the scope of the discretion he possessed as a
firefighter. Because it is not clear to me whether Giroux can be said to have been
acting in an official capacity when he made this statement, see Selby, 2002 ME 80,
¶ 6 n.5, I decline to find at this stage that Giroux is entitled to immunity. Thus, the
motion to dismiss Count XIII is denied.

CONCLUSION
For the reasons stated above, the Court GRANTS IN PART and DENIES IN
PART the Defendants’ motion to dismiss (ECF No. 28). The motion is GRANTED as
to Counts II, III, IV, V, VI, VII, VIII, IX, and XI. The motion is DENIED as to Counts
I, X, XII, and XIII.

SO ORDERED.
/s/ Nancy Torresen
United States District Judge
Dated this 4th day of May, 2022.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10211411. Public record. Not legal advice.