VANETTEN v. DAIGLE

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

MICHAEL VANETTEN, )

)

Plaintiff )

)

v. ) 2:22-cv-00291-JDL

)

JUDITH DAIGLE, ARAMARK, and )

YORK COUNTY JAIL )

)

Defendants )

RECOMMENDED DECISION ON

DEFENDANTS’ MOTIONS TO DISMISS

Plaintiff seeks to recover damages allegedly resulting from several incidents that

occurred while he was incarcerated at the York County Jail. (Complaint, ECF No. 1.)1

Plaintiff joined as defendants, York County,2 Aramark, which provided food services at

the jail, and Judith Daigle, who worked for Aramark at the jail. Defendants move to

dismiss Plaintiff’s complaint. (Motions to Dismiss, ECF Nos. 23, 25.)

1 Throughout their memorandum of law, Defendants Daigle and Aramark refer to Plaintiff’s complaint as

a “purported complaint.” (Memorandum of Law, ECF No. 25-1.) Defendants evidently question the court’s

docketing of Plaintiff’s filing as a complaint. (Memorandum of Law at 2 – 3.) As this District recently

reiterated, “‘as a general rule, [courts] are solicitous of the obstacles that pro se litigants face, and while

such litigants are not exempt from procedural rules, we hold pro se pleadings to less demanding standards

than those drafted by lawyers and endeavor, within reasonable limits, to guard against the loss of pro se

claims due to technical defects.’” Roussel v. Mayo, No. 1:22-cv-00285-JAW, 2023 WL 1100308, at *2 (D.

Me. Jan. 30, 2023) (quoting Dutil v. Murphy, 550 F.3d 154, 158 (1st Cir. 2008)). The docketing of

Plaintiff’s filing as a complaint is consistent with this principle.

2 Plaintiff named York County Jail as a party to this action. Although the jail is not a proper party to this

action, the Court can reasonably construe Plaintiff’s allegations as attempting to assert a claim against York

County. See, e.g., Gurhan v. City of Saco, No. 2:19-cv-00349, 2019 WL 5589044, at *1 n.2 (D. Me. Oct.

30, 2019).

Following a review of the record and after consideration of the parties’ arguments,

I recommend the Court grant the motions of Defendants York County and Aramark but

deny Defendant Daigle’s motion.

FACTUAL BACKGROUND3

Plaintiff alleges that while he was incarcerated at York County Jail, he worked as

an “inmate kitchen trusty earning time off [his] sentence.” (Complaint, at 1.) Plaintiff

alleges that for about two weeks during his employment in July-August 2020, Defendant

Daigle, who was employed by Aramark and was his “superior” in the kitchen, “made

sexual comments,” “invaded [his] personal space,” and “placed her hand on [his] genitals”

on three occasions. (Id.) Plaintiff alleges that he told Defendant Daigle that her actions

and comments made him uncomfortable. (Id.)

Plaintiff asserts that on one occasion, Defendant Daigle followed him in the walk-

in refrigerator, closed the door behind her, and touched Plaintiff on his genitals. (Id.)

Plaintiff asked her to stop. (Id.) Plaintiff further alleges that she left the walk-in, returned

a minute later and asked Plaintiff to engage in a sexual act. (Id. at 1 – 2.)

Plaintiff quit his job the next day and reported the incidents to unidentified York

County Jail officials. (Id. at 2.) According to Plaintiff, Defendant Daigle was “suspended

pending [an] internal investigation.” (Id.) Plaintiff alleges that after reporting the incident

to the proper officials, he has been “threatened with criminal allegations.” (Id.) Plaintiff

3 The facts set forth below are derived from Plaintiff’s complaint. Plaintiff’s factual allegations are deemed

true when evaluating a motion to dismiss. McKee v. Cosby, 874 F.3d 54, 59 (1st Cir. 2017).

alleges that the encounters with Defendant Daigle have caused him to suffer emotionally.

(Id.)

STANDARD OF REVIEW

A. Rule 12(b)(6) Motion to Dismiss

In reviewing a motion to dismiss under Rule 12(b)(6), a court “must evaluate

whether the complaint adequately pleads facts that ‘state a claim to relief that is plausible

on its face.’” Guilfoile v. Shields, 913 F.3d 178, 186 (1st Cir. 2019) (quoting Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). In doing so, a court must “assume the truth

of all well-pleaded facts and give the plaintiff the benefit of all reasonable inferences

therefrom,” but need not “draw unreasonable inferences or credit bald assertions [or] empty

conclusions.” Id. (alteration in original) (internal quotation marks omitted); see Bruns v.

Mayhew, 750 F.3d 61, 71 (1st Cir. 2014) (“[A] court is ‘not bound to accept as true a legal

conclusion couched as a factual allegation.’” (quoting Twombly, 550 U.S. at 555)). Federal

Rule of Civil Procedure 12(b)(6) “demands more than an unadorned, the-defendant-

unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

To evaluate the sufficiency of the complaint, therefore, a court must “first, ‘isolate

and ignore statements in the complaint that simply offer legal labels and conclusions or

merely rehash cause-of-action elements,’ then ‘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.’” Zell v. Ricci, 957 F.3d

1, 7 (1st Cir. 2020) (alteration omitted) (quoting Zenon v. Guzman, 924 F.3d 611, 615-16

(1st Cir. 2019)).

“A self-represented plaintiff is not exempt from this framework, but the court must

construe his complaint ‘liberally’ and hold it ‘to less stringent standards than formal

pleadings drafted by lawyers.’” Waterman v. White Interior Sols., No. 2:19-cv-00032-

JDL, 2019 WL 5764661 at *2 (D. Me. Nov. 5, 2019) (quoting Erickson v. Pardus, 551

U.S. 89, 94 (2007)).

B. Rule 12(b)(1) Motion to Dismiss4

“‘Federal courts are courts of limited jurisdiction,’ possessing ‘only that power

authorized by Constitution and statute.’” Gunn v. Minton, 568 U.S. 251, 256 (2013)

(quoting Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994)).

Accordingly,“[f]ederal courts are obliged to resolve questions pertaining to subject-matter

jurisdiction before addressing the merits of a case.” Acosta-Ramírez v. Banco Popular de

Puerto Rico, 712 F.3d 14, 18 (1st Cir. 2013).

“A motion to dismiss an action under Rule 12(b)(1) . . . raises the fundamental

question whether the federal district court has subject matter jurisdiction over the action

before it.” United States v. Lahey Clinic Hosp., Inc., 399 F.3d 1, 8 n.6 (1st Cir. 2005)

(quotation marks omitted). On such a motion, the court must “credit the plaintiff’s well-

pled factual allegations and draw all reasonable inferences in the plaintiff’s favor.”

Merlonghi v. United States, 620 F.3d 50, 54 (1st Cir. 2010). The court “may also ‘consider

whatever evidence has been submitted.’” Id. (quoting Aversa v. United States, 99 F.3d

4 Defendants Daigle and Aramark move for dismissal in part pursuant to Rule 12(b)(1). Although

Defendant York County did not cite Rule 12(b)(1) in support of its motion, it argues that because Plaintiff

failed to comply with the Maine Tort Claims Act (Motion at 7 – 8), the Court lacks jurisdiction over

Plaintiff’s state law claims.

1200, 1210 (1st Cir. 1996)). The burden of proving subject matter jurisdiction falls to the

party invoking the court’s jurisdiction. Skwira v. United States, 344 F.3d 64, 71 (1st Cir.

2003).

DISCUSSION

A. Plaintiff’s Failure to Respond to the Motions

Generally, a plaintiff’s lack of objection to the motion to dismiss “does not relieve

the district court of the obligation to examine the complaint itself to see whether it is

formally sufficient to state a claim.” Vega-Encarnacion v. Babilonia, 344 F.3d 37, 41 (1st

Cir. 2003); see also Moore v. Doe¸ 2:21-cv-00220-JAW, 2022 WL 684383 at *1 (D. Me.

Mar. 8, 2022) (assessing the merits of the complaint and motion to dismiss to be confident

“that equity would not be offended by the dismissal”). However, “[w]hen a district court

has promulgated a local rule, such as the District of Maine’s Local Rule 7(b), which

requires a party to file a written objection to any motion, it is within the district court’s

discretion to dismiss an action based on a party’s unexcused failure to respond to a

dispositive motion.” Parham v. Pelletier, No. 2:11-cv-00435-DBH, 2012 WL 987336 at

*3 (D. Me. Mar. 21, 2012). The discretion is limited to dismissing cases “when the result

does not clearly offend equity” or “conflict with a federal rule.” Pomerleau v. W.

Springfield Pub. Sch., 362 F.3d 143, 145 (1st Cir. 2004) (quoting NEPSK, Inc. v. Town of

Houlton, 283 F.3d 1, 7 (1st Cir. 2002)).

Plaintiff was evidently released from jail to a form of transition/temporary housing

approximately two months before the filing of the motions. (Notice, ECF No. 15.) He was

to remain at the location for approximately forty-two days. (Id.) There is some question,

therefore, whether he was at the location when the motions were filed. Plaintiff thus might

not have received the motions. Given the uncertainty as to whether Plaintiff received the

motions and given that following his release from jail, Plaintiff expressed his intention to

pursue this action, Plaintiff’s failure to respond to the motions is not necessarily the product

of his lack of interest or deliberate disregard of court rules. The equities, therefore, militate

in favor of a review of the merits of the motions rather than a dismissal based solely on

Plaintiff’s failure to respond to the motions.

B. Motion to Dismiss of Defendant York County

1. Plaintiff’s Constitutional Claim

Although Plaintiff did not specifically reference a federal theory of recovery,

Plaintiff’s pleadings can reasonably be construed to allege that Defendant Daigle violated

his Eighth Amendment rights. Defendant York County argues that Plaintiff’s

constitutional claim against it fails because Defendant Daigle is not employed by York

County, Plaintiff has not alleged the conduct was the product of a York County policy or

custom, and Plaintiff’s harassment allegations do not constitute a constitutional violation.

(Motion to Dismiss at 5.)

Plaintiff’s constitutional claim is authorized and governed by 42 U.S.C. § 1983.

Section 1983 does not provide substantive rights but is a vehicle “for vindicating federal

rights elsewhere conferred.” Albright v. Oliver, 510 U.S. 266, 271 (1994) (quoting Baker

v. McCollan, 443 U.S. 137, 144 n.3 (1979)). To maintain a claim under section 1983, a

plaintiff must establish: “1) that the conduct complained of has been committed under color

of state law, and 2) that this conduct worked a denial of rights secured by the Constitution

or laws of the United States.” Barreto-Rivera v. Medina-Vargas, 168 F.3d 42, 45 (1st Cir.

1999).

The Eighth Amendment prohibition on cruel and unusual punishments governs

prisoners’ treatment after conviction. See City of Revere v. Mass. Gen. Hosp., 463 U.S.

239, 243 (1983). “Prison officials have a duty to provide humane conditions of

confinement; prison officials must ensure that inmates receive adequate food, clothing,

shelter, and medical care, and must take reasonable measures to guarantee the safety of the

inmates.” Giroux v. Somerset, 178 F.3d 28, 31 (1st Cir. 1999) (citations and quotation

marks omitted). To establish an Eighth Amendment violation, an inmate must plead a two-

step standard. Hudson v. McMillan, 503 U.S. 1, 4 (1992). “First, the deprivation alleged

must be, objectively, ‘sufficiently serious’” and second, the “prison official must have

‘sufficiently culpable state of mind.’” Farmer v. Brennan, 511 U.S. 834 (1994) (citations

omitted). The “sexual assault of an inmate by a prison guard5 violates the Eighth

Amendment.” Covington v. Paris, No. 19-cv-384-JD, 2021 WL 1430715, at *1 (D.N.H.

Apr. 15, 2021) (citing Brown v. Flowers, 974 F.3d 1178, 1185-86 (10th Cir. 2020); see

also Chao v. Ballista, 630 F. Supp. 2d 170, 180 (D. Mass. 2009) (collecting cases).

For a governmental entity to be liable for a constitutional deprivation, the record

must include evidence that the entity’s policy, custom, or practice caused the deprivation.

Welch v. Ciampa, 542 F.3d 927, 941 (1st Cir. 2008). The applicable standard requires a

5 Although Defendant Daigle is not a corrections officer, she would likely be considered a state actor while

performing a traditionally public function. See discussion infra section C.

plaintiff to “identify a [governmental entity] ‘policy’ or ‘custom’ that caused the plaintiff’s

injury.” Bd. of Cty. Comm’rs v. Brown, 520 U.S. 397, 403 (1997).

Plaintiff has not identified a policy or custom that resulted in the alleged deprivation

of his constitutional rights. Plaintiff, therefore, has not pled a plausible constitutional claim

against Defendant York County.

2. Plaintiff’s State Law Claims

Defendant York County moves to dismiss any state law claim Plaintiff seeks to

assert because Plaintiff failed to comply with the Maine Tort Claims Act, 14 M.R.S. §§

8101-8118, and otherwise failed to allege an actionable state law claim. (Motion to

Dismiss at 7.)

Plaintiff’s allegations can be construed to assert a state law tort claim for the

intentional infliction of emotional distress or assault and battery. A tort claim brought

against a “governmental entity” such as York County is actionable only as permitted by

the Maine Tort Claims Act (MTCA). 14 M.R.S. § 2-807(4); 14 M.R.S.§ 8104-C. Under

the MTCA, to assert an action against a governmental entity, a claimant must first file a

notice with the governmental entity “[w]ithin 365 days after any claim or cause of action”

accrues. 14 M.R.S. § 8107(1). After the notice, the governmental entity has 120 days to

“act thereon and notify the claimant in writing of its approval or denial of the monetary

damages claimed.” Id. § 8108. This provision “acts as a jurisdictional bar if a plaintiff

fails to wait 120 days before filing suit.” Learnard v. Inhabitants of Town of Van Buren,

164 F. Supp. 2d 35, 40 (D. Me. 2001) (dismissing the “state law tort claims without

prejudice” for lack of subject matter jurisdiction).

Plaintiff has not alleged, and the record does not otherwise reflect, that Plaintiff

complied with the MTCA. Furthermore, given Plaintiff’s lack of response to Defendant’s

motion, Plaintiff has not challenged Defendant’s contention that he failed to comply with

the MTCA. Accordingly, to the extent Plaintiff’s complaint is construed to allege a state

law claim, dismissal is warranted.

C. Motion to Dismiss of Defendants Aramark and Daigle

Plaintiff’s complaint against Defendants Daigle and Aramark can reasonably be

construed as asserting a claim pursuant to 42 U.S.C. § 1983 for the violation of the Eighth

Amendment.6

Although Defendant Aramark is a private corporation and Defendant Daigle is a

private employee, because they provide a service the jail must provide, they are considered

“state actors” for purposes of the federal civil rights statute 42 U.S.C. § 1983. See Farmer,

511 U.S. at 833 (“prison officials must ensure that inmate receive adequate food, clothing,

shelter, and medical care”); Rodriguez-Garcia v. Davila, 904 F.2d 90, 98 (1st Cir. 1990)

(asserting that “prisons are public functions that, when ‘privatized’ still retain their public

nature, and action under color of law may still be found.”); Hallec Ravan v. Talton, No.

21-11036, 2023 WL 2238853, at *5 n.8 (11th Cir. Feb. 27, 2023) (stating the private food

service that provides food to the prison, “is a state actor because it feeds incarcerated

people.”)

6 See discussion supra section B.1.

1. Defendant Daigle

Plaintiff alleges Defendant Daigle made “sexual comments and ‘jokes’ that made

[him] feel uncomfortable. (Complaint at 1.) Defendant Daigle’s comments alone are not

enough to state a claim because “verbal and sexual harassment does not give rise to section

1983 liability in the prison context.” Collins v. Graham, 377 F. Supp. 2d 241, 243 (D. Me.

2005). Plaintiff, however, alleges more than just the unwanted sexual comments. He

alleges that Defendant Daigle inappropriately touched him three times. “[S]exual assault

occurs when ‘a prison staff member, acting under color of law and without legitimate

penological justification, touches the prisoner in a sexual manner or otherwise engages in

sexual conduct for the staff member’s own sexual gratification, or for the purpose of

humiliating, degrading, or demeaning the prisoner.’” Covington, 2021 WL 1430715, at *1

(quoting Bearchild v. Cobban, 947 F.3d 1130, 1144 (9th Cir. 2020). Plaintiff has alleged

an actionable federal claim against Defendant Daigle. Plaintiff has also alleged a plausible

state law claim against Defendant Daigle for the assault/battery and the intentional

infliction of emotional distress.7

7 Although Defendant Daigle would under certain circumstances be considered a governmental employee

under the MTCA, see Hamilton v. Woodsum, 2020 ME 8, ¶ 28, 223 A.3d 904, 910, (question is whether

the person or “entity was performing a governmental function on behalf of a governmental entity”), the

conduct alleged cannot reasonably be construed as the performance of a governmental function. The

protections of the MTCA, therefore, do not operate as a bar to the state law claims against Defendant Daigle.

2. Defendant Aramark

Defendant Aramark argues that Plaintiff’s constitutional claim against it fails

because there is no vicarious liability under § 1983 and because Plaintiff has not alleged

existence of a policy or custom. (Motion to Dismiss at 10 – 11.)

“Government officials may not be held liable for the unconstitutional conduct of

their subordinates under a theory of respondeat superior.” Ashcroft, 556 U.S. at 676.

“Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that

each Government-official defendant, through the official’s own individual actions, has

violated the Constitution.” Id.8 The mere fact that Plaintiff has alleged a plausible § 1983

claim against Defendant Daigle thus does not result in potential liability for Defendant

Aramark.

A private contractor such as Aramark, which provides services at a state or county

jail, is generally treated as a municipality for purposes of section 1983 claims. See Wall v.

Dion, 257 F. Supp. 2d 316, 319-20 (D. Me. 2003); see also Witham v. Corizon, Inc., No.

2:12-cv-00146-NT2012 U.S. Dist. LEXIS 152869, at **20-21 & n. 4 (D. Me. Sep. 17,

2012). “[A]lthough a municipality may not be held liable under a theory of respondeat

superior for an employee’s constitutional violation, it may be held liable when ‘execution

8 “This does not mean, however, that for section 1983 liability to attach, a supervisor must directly engage

in a subordinate’s unconstitutional behavior.” Guadalupe-Baez v. Pesquera¸ 819 F.3d 509, 515 (1st Cir.

2016). “[L]iability may attach ‘if responsible official supervises, trains, or hires a subordinate with

deliberate indifference toward the possibility that deficient performance of the task eventually may

contribute to a civil rights deprivation.” Sanchez v. Pereira-Castillo¸ 590 F.3d 31, 49 (1st Cir. 2009)

(quoting Camilo-Robles v. Zapata¸ 175 F.3d 41, 44 (1st Cir. 1999). Defendants address this argument in

the motion to dismiss, but the Court does not construe Plaintiff’s complaint to allege a failure to train cause

of action.

of [the municipality’s] policy or custom . . . inflicts the injury’ and is the ‘moving force’

behind the employee’s constitutional violation.” Saldivar v. Racine, 818 F.3d 14, 20 (1st

Cir. 2016) (quoting Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).

Plaintiff has not identified an Aramark policy or custom that resulted in the alleged

deprivation of his constitutional rights. Dismissal of Plaintiff’s federal claim against

Defendant Aramark, therefore, is warranted.

Dismissal of any state law claim against Defendant Aramark is also appropriate.

Because Plaintiff has not alleged any facts to support an independent state law claim

against Defendant Aramark, Plaintiff’s state law claims against Defendant Aramark would

be based on vicarious liability as it employed Defendant Daigle at the time of her alleged

tortious conduct. Because Defendant Daigle’s alleged conduct cannot reasonably be

considered as within the scope of her employment, Plaintiff cannot sustain a vicarious

liability claim against Defendant Aramark. See Mahar v. StoneWood Transport, 2003 ME

63 ¶ 14, 823 A.2d 540, 544 (quoting Lyons v. Brown¸ 158 F.3d 605, 609-10 (1st Cir. 1998)

(“Acts relating to work and done in the workplace during work hours are within the scope

... while serious intentional wrongdoing is outside it.”)

CONCLUSION

Based on the foregoing analysis, I recommend:

1. The Court grant Defendant York County’s motion to dismiss and dismiss

Plaintiff’s claims against Defendant York County;

2. The Court grant Defendant Aramark’s motion to dismiss and dismiss Plaintiff’s

claims against Defendant Aramark; and

3. The Court deny Defendant Daigle’s motion to dismiss.

Because Plaintiff did not file a response to the motion and because Plaintiff has not

otherwise communicated with the Court since February 21, 2023, I also recommend the

Court dismiss Plaintiff’s complaint against Defendant Daigle for the failure to prosecute

unless Plaintiff, within fourteen days of the date of this recommended decision, notifies the

Court of his intention to continue to pursue his claim against Defendant Daigle.9

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 22nd day of June, 2023.

9 “A district court, as part of its inherent power to manage its own docket, may dismiss a case sua sponte

for any of the reasons prescribed in Fed. R. Civ. P. 41(b).” Cintron-Lorenzo v. Dep’t de Asumtos del

Consumidor, 312 F.3d 522, 526 (1st Cir. 2002) (citing Link v. Wabash R.R. Co., 370 U.S. 626, 629 – 31

(1962)). Federal Rule of Civil Procedure 41(b) authorizes the Court to dismiss an action for a party’s failure

to prosecute. As noted above, there is some uncertainty as to whether Plaintiff resides at the address listed

on the court’s docket. If Plaintiff fails to advise the court of his intention to pursue this action and if the

copy of the recommended decision mailed to Plaintiff is returned to the court because Plaintiff no longer

resides at the address, dismissal is nevertheless warranted for failure to prosecute. A party to litigation has

a duty to inquire periodically regarding the status of the litigation and to keep the court informed of her or

his current address and contact information. United States v. Guerrero, 302 Fed. App’x 769, 771 (10th Cir.

2008); Lewis v. Hardy, 248 Fed. App’x 589, 593 (5th Cir. 2007) (per curiam); Carvel v. Durst, No. 1:09-

cv-06733, 2014 WL 787829, at *1 n.5 (S.D.N.Y. Feb. 25, 2014); Am. Arbitration Ass’n, Inc. v. Defonseca,

No. 1:93-cv-02424, 1997 WL 102495, at *2 (S.D.N.Y. Mar. 6, 1997) (“[A] litigant’s obligation to promptly

inform the Court and the opposing party of an address change is a matter of common sense, not legal

sophistication.”)