PLOURDE v. MASON

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

GLEN PLOURDE, )

)

Plaintiff )

)

v. ) 1:24-cv-00291-LEW

)

KEN MASON, et al., )

)

Defendants )

RECOMMENDED DECISION AFTER REVIEW

OF PLAINTIFF’S COMPLAINT

Plaintiff seeks to recover damages allegedly resulting from Defendants’ failure to

respond to Plaintiff’s reports of criminal activity. (Complaint, ECF No. 1.) Plaintiff also

filed a motion to proceed without payment of fees, which motion the Court granted.

(Motion, ECF No. 4; Order, ECF No. 6.)

In accordance with the statute governing actions filed without the prepayment of

fees, a preliminary review of Plaintiff’s complaint is appropriate. 28 U.S.C. § 1915(e)(2).

Following a review of Plaintiff’s complaint, I recommend the Court dismiss the matter.

FACTUAL BACKGROUND

Plaintiff alleges that he has filed numerous reports describing criminal acts

committed against him with the Kennebec County Sheriff’s Office (KCSO). (Complaint

¶ 75, ECF No. 1.) The reports were filed on August 15, 2018; August 20, 2018; August

22, 2018; August 24, 2018; August 31, 2018; September 7, 2018; September 14, 2018;

September 26, 2018; and October 5, 2018. (Id.) Plaintiff asserts that the KCSO and the

other defendants did not contact him about the events described in his reports nor do

anything to assist Plaintiff. (Id. ¶¶ 76, 78.) Based on this alleged inaction, Plaintiff seeks

to assert federal and state claims against Kennebec County,1 the KCSO, Kennebec County

Commissioner George Jabar II, KCSO Office Manager Tom Feeney, and Kennebec

County Sheriff Ken Mason.2 Defendants Jabar, Feeney, and Mason are sued in their

individual capacities. (Id. ¶ 101.)

LEGAL STANDARD

28 U.S.C. § 1915 is designed to ensure meaningful access to the federal courts for

individuals unable to pay the cost of bringing an action. When a party is proceeding

pursuant to § 1915, however, “the court shall dismiss the case at any time if the court

determines,” inter alia, that the action is “frivolous or malicious” or “fails to state a claim

on which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B). “Dismissals [under § 1915]

are often made sua sponte prior to the issuance of process, so as to spare prospective

defendants the inconvenience and expense of answering such complaints.” Neitzke v.

Williams, 490 U.S. 319, 324 (1989).

1 “[A] plaintiff seeking to impose liability on a municipality under § 1983 . . . [must] identify a municipal

‘policy’ or ‘custom’ that caused the plaintiff’s injury.” Bd. Of County Comm’rs v. Brown, 520 U.S. 397,

403 (1997). In his complaint, Plaintiff does not identify a specific policy or custom of Kennebec County

but instead states that he expects evidence of such a policy or custom to be uncovered during discovery.

(Complaint ¶ 54.) Because Plaintiff also names county employees in their individual capacity as

defendants, I address whether Plaintiff’s allegations are sufficient to allege a constitutional violation

regardless of whether he has alleged a claim of municipal liability.

2 The claims against Defendants KCSO, Jabar, Feeney, and Mason, might be barred or limited by qualified

immunity. Cf. Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“[Q]ualified 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.”). Because I conclude

that Plaintiff has not alleged a constitutional violation (see below), I do not reach the question of qualified

immunity.

When considering whether a complaint states a claim for which relief may be

granted, courts must assume the truth of all well-plead facts and give the plaintiff the

benefit of all reasonable inferences therefrom. Ocasio-Hernandez v. Fortuno-Burset, 640

F.3d 1, 12 (1st Cir. 2011). A complaint fails to state a claim upon which relief can be

granted if it does not plead “enough facts to state a claim to relief that is plausible on its

face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). “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)). “This

is not to say that pro se plaintiffs are not required to plead basic facts sufficient to state a

claim.” Ferranti v. Moran, 618 F.2d 888, 890 (1st Cir. 1980).

DISCUSSION

Plaintiff, citing 42 U.S.C. § 1983 and 5 M.R.S. § 4682 as authority for his claims,

alleges Defendants violated his rights secured by the Fifth and Fourteenth Amendments to

the United States Constitution and Section 6-A of the Maine State Constitution.

A. Plaintiff’s Federal Claims

Plaintiff cites 42 U.S.C. § 1983 as a basis for this Court’s jurisdiction. Pursuant to

the federal civil rights statute:

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.

Section 1983 “‘is not itself a source of substantive rights,’ but merely provides ‘a

method 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).

Plaintiff alleges that Defendants’ conduct was under color of state law. The issue

is whether Plaintiff has alleged sufficient facts to assert an actionable claim based on the

denial of rights secured to him under the Constitution.

1. Fifth Amendment

The Due Process Clause of the Fifth Amendment provides that “[n]o person shall .

. . be deprived of life, liberty, or property without due process of law. . . .” U.S. Const.

amend. V. “The Fifth Amendment Due Process Clause . . . applies ‘only to actions of the

federal government—not to those of state or local governments.” Martinez-Rivera v.

Sanchez Ramos, 498 F.3d 3, 8 (1st Cir. 2007) (quoting Lee v. City of Loss Angeles, 250

F.3d 668, 687 (9th Cir. 2001). Because none of the defendants in this case is a federal

actor, Plaintiff has not alleged an actionable claim under the Fifth Amendment.

2. Fourteenth Amendment

a. Due Process Claim

The Fourteenth Amendment’s Due Process Clause prohibits state deprivations of

“life, liberty, or property, without due process of law.” U.S. Const. amend. XIV, § 1. The

Supreme Court explained in DeShaney v. Winnebago County Department of Social

Services that the Due Process Clause does not

require[] the State to protect the life, liberty, and property of its citizens

against invasion by private actors. The Clause is phrased as a limitation on

the State’s power to act, not as a guarantee of certain minimal levels of safety

and security. It forbids the State itself to deprive individuals of life, liberty,

or property without ‘due process of law,’ but its language cannot fairly be

extended to impose an affirmative obligation on the State to ensure those

interests do not come to harm through other means. . . . [The Due Process

Clause’s] purpose was to protect people from the State, not to ensure that the

State protected them from each other. The Framers were content to leave the

extent of governmental obligation in the latter area to the democratic political

process. Consistent with these principles, [] cases have recognized that the

Due Process Clauses generally confer no affirmative right to governmental

aid, even where such aid may be necessary to secure life, liberty, or property

interests of which the government itself may not deprive the individual. . . .

If the Due Process Clause does not require the State to provide its citizens

with particular protective services, it follows that the State cannot be held

liable under the Clause for injuries that could have been averted had it chosen

to provide them. As a general matter then, we conclude that a State’s failure

to protect an individual against private violence simply does not constitute a

violation of the Due Process Clause.

DeShaney v. Winnebago Cty. Dept. of Soc. Servs., 489 U.S. 189, 195–96 (1989) (using

State to refer “generically to state and local governmental entities and their agents.”); see

also Warren v. District of Columbia, 444 A.2d 1, 4 (D.C. App. 1981) (affirming lower

court’s holding recognizing “the well-established rule that official police personnel and the

government employing them are not generally liable to victims of criminal acts for failure

to provide adequate police protection.”).

Here, Plaintiff alleges a Fourteenth Amendment violation based on Defendants’

inaction in response to his complaints about criminal activity perpetrated against him.

Under the reasoning of DeShaney, Plaintiff’s allegations do not support a due process

claim. See Stow v. Sloper, No. 18-cv-1108-LM, 2020 WL 1516557, at *1 (D.N.H. Jan. 3,

2020), rec’d dec. aff’d, 2020 WL 1517062 (D.N.H. Mar. 27, 2020) (“There is no cause of

action under 42 U.S.C. § 1983 for the failure to investigate a crime, as there is no federal

constitutional right to have criminal wrongdoers investigated or brought to justice.”) (citing

Linda R. S. v. Richard D., 410 U.S. 614 (1973)).

b. Equal Protection Claim

The Fourteenth Amendment provides under the Equal Protection Clause that “[n]o

State shall . . . deny to any person within its jurisdiction the equal protection of the laws.”

U.S. Const. amend XIV, § 1. For a plaintiff to allege a claim under the Equal Protection

Clause, the plaintiff must establish that she or he was “treated differently from others

similarly situated.” Estate of Bennett v. Wainwright, 548 F.3d 155, 166 (1st Cir. 2008)

(affirming grant of summary judgment on Equal Protection claim when plaintiff’s

pleadings did not compare treatment of plaintiff to treatment of any person similarly

situated); City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985); see Vill. of

Willowbrook v. Olech, 538 U.S. 562, 564 (2000); Santos v. Fed. Emergency Mgmt. Agency,

327 F. Supp. 3d 328, 341 (D. Mass. 2018). This requirement “demands more than lip

service” and “is meant to be ‘a very significant burden.” Cordi-Allen v. Conlon, 494 F.3d

245, 251 (1st Cir. 2007) (quoting Discovery House, Inc. v. Consol. City of Indianapolis,

319 F.3d 277, 283 (7th Cir. 2003)); see Barrington Cove Ltd. P’ship v. R.I. Hous. And

Mortg. Fin. Corp, 246 F.3d 1, 8 (1st Cir. 2001) (affirming Rule 12(b)(6) dismissal because

plaintiffs failed the “similarly situated” test).

Plaintiff asserts that he was intentionally treated differently from other residents of

Kennebec County seeking police assistance. (Complaint ¶ 52.) Plaintiff’s relevant

allegations are conclusory; he does not allege any facts that would support the disparate

treatment necessary to support an equal protection claim.3

B. Plaintiff’s State Law Claims

5 M.R.S. § 4682 is the Maine analogue to 42 U.S.C. § 1983. Cohen ex rel. Cohen

v. City of Portland, 110 F.4th 400, 404 (1st Cir. 2024). “The disposition of a [section]

1983 claim also controls a claim under the [analogous Maine statute].” Id. (quoting Berube

v. Conley, 506 F.3d 79, 85 (1st Cir. 2007)). Therefore, the above analyses apply to any

claims brought under 5 M.R.S. 4682 alleging violations of the Fifth and Fourteenth

3 Even if Plaintiff had alleged enough facts to support a finding that he was treated differently from similarly

situated individuals, Plaintiff’s allegations would likely not allege an actionable equal protection claim. If

Plaintiff had an equal protection claim, the claim would undoubtedly be a “class of one” claim. See Snyder

v. Gaudet, 756 F.3d 30, 34 (1st Cir. 2014) (When an individual alleges the government singled that person

out for reasons unique to the person, rather than for the person’s membership in any group, that “class of

one” claim requires the individual to show that he or she was “intentionally treated differently from others

similarly situated and that there is no rational basis for the difference in treatment”) (quoting Vill. of

Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (per curiam)). In Engquist v. Oregon Department of

Agriculture, the Supreme Court held that class of one claims do not apply to “forms of state action . . .

which by their nature involve discretionary decisionmaking based on a vast array of subjective,

individualized assessments.” 553 U.S. 591, 603 (2008) (holding class of one claim not applicable to public

employment); see also Cousins v. Higgins, No. 1:14-cv-515-DBH, 2015 WL 3755272, at *5 (D. Me. June

15, 2015) (holding class of one claim not applicable to response of firefighters to ongoing fire). Given law

enforcement’s discretion to decide whether and how to respond to the complaints it receives, Plaintiff has

not alleged and would likely be unable to allege facts that would support an actionable class of one claim.

Amendments to the U.S. Constitution. Because Plaintiff has not alleged an actionable

claim based on the violation of a federal right or law, Plaintiff cannot proceed on his claims

based on an alleged violation of the Maine State Constitution.

CONCLUSION

Based on the foregoing analysis, after a review of Plaintiff’s complaint in

accordance with 28 U.S.C. § 1915, I recommend the Court dismiss the matter.

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.

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 4th day of October, 2024.