BRADLEY v. YORK COUNTY SHERIFF

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

GEORGE E. BRADLEY, )

)

Plaintiff )

)

v. ) 2:22-cv-00178-JAW

)

YORK COUNTY SHERIFF, et al., )

)

Defendants )

RECOMMENDED DECISION ON

DEFENDANT’S MOTION TO DISMISS

Plaintiff seeks to recover damages resulting from an incident that occurred when he

was shot multiple times by two law enforcement officers who entered his home in March

2019. (Complaint, ECF No. 1.) Defendant Portland City Police (Defendant) has moved to

dismiss Plaintiff’s complaint. (Motion, ECF No. 26.) Plaintiff did not file an opposition

to the motion.

Following a review of the complaint and after consideration of Defendant’s motion

to dismiss, I recommend the Court grant the motion.

BACKGROUND

The facts set forth below are derived from Plaintiff’s complaint and the record.

Plaintiff’s factual allegations are deemed true when evaluating a motion to dismiss. McKee

v. Cosby, 874 F.3d 54, 59 (1st Cir. 2017).

Plaintiff alleges that on March 21, 2019, two law enforcement officers, one with the

York County Sheriff’s office and one with the Portland Police Department, entered his

home without a warrant and discharged their weapons, shooting him three times.

Plaintiff joined the York County Sheriff, the Portland Police Department,1 and two

John Doe individuals as defendants. Defendant asserts Plaintiff has not alleged an

actionable claim against it and moves, pursuant to Federal Rule of Civil Procedure

12(b)(6), for dismissal.

LEGAL STANDARD

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

1 Plaintiff named the Portland City Police as a party to this action. The Portland Police Department,

however, is “not a suable entity.” Dwan v. City of Boston, 329 F.3d 275, 278 n.1 (1st Cir. 2003). Although

the police department is not a proper party to this action, the Court can reasonably construe Plaintiff’s

allegations as attempting to assert a claim against City of Portland. 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).

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)).

DISCUSSION

Under District of Maine Local Rule 7(b), a party is expected to file an objection to

a motion if the party contests the motion, and unless the party files an objection, the party

is “deemed to have waived objection.” D. Me. Loc. R. 7(b). “When 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)). The record lacks any evidence to suggest the equities would militate

against dismissing the claim against Defendant. Dismissal, therefore, would be warranted

based solely on Plaintiff’s lack of objection to Defendant’s motion to dismiss. Even if

Plaintiff had not waived objection, however, dismissal is warranted.

Although Plaintiff does not assert a specific legal theory of recovery, his complaint

could be construed to allege a violation of his constitutional rights. Plaintiff’s claim,

therefore, would be governed by the federal civil rights statute, which provides in pertinent

part:

Every person who, under color of any statute, ordinance, regulation, custom,

or usage ... 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 ....

42 U.S.C. § 1983. 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).

A municipality, such as Defendant, cannot be vicariously liable for a constitutional

deprivation simply because the deprivation was caused by a municipal employee. Welch

v. Ciampa, 542 F.3d 927, 941 (1st Cir. 2008) (citing Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 691 (1978)). A municipality can be held liable under § 1983 “only for [its] own

unconstitutional acts.” Haley v. City of Boston, 657 F.3d 39, 51 (1st Cir. 2011). “Thus, a

plaintiff who brings a section 1983 action against a municipality bears the burden of

showing that, ‘through its deliberate conduct, the municipality was the moving “force

behind” the injury alleged.’” Id. (quoting Bd. of Cnty. Comm'rs of Bryan Cnty. v. Brown,

520 U.S. 397, 404 (1997)). For a municipality to be liable for a constitutional deprivation,

the record must include evidence that a municipal policy, custom, or practice caused the

deprivation. Welch, 542 F.3d at 941. The applicable standard thus requires a plaintiff to

“identify a municipal ‘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 in his complaint

a municipal policy or custom that resulted in the alleged deprivation of his constitutional

rights. Plaintiff, therefore, has not stated a section 1983 claim against Defendant.

CONCLUSION

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

to dismiss.

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 6th day of July, 2023.