Opinion

Watson v. Somerset County Sheriff's Dept.

Court
Superior Court of Maine
Filed
Jun 13, 2005
Status
Unpublished
On the bench
Jeffrey L. Hjelm
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

STATE OF MAINE SUPERIOR COURT

PENOBSCOT, SS. CIVIL ACTION

Docket No. CV-05-32

David B. Watson Sr. et al.,

Plaintiffs

¥. Order

FILES & ENTERED

SUPERIOR COURT

Somerset County Sheriff’s . .

Department et al., JUN 13 2008

Defendants

PENOBSCOT COUNTY |

Several motions are pending before the court in this action. The court has

reviewed the parties’ submissions on those motions.

1. Plaintiffs’ motions for entry of default and default judgment

These motions must be denied. The plaintiffs filed the two motions (dated March

4 and March 9) on the ground that the defendants failed to file timely responses to the

complaint. The plaintiffs, however, have failed to make proper service of the complaint

on the defendant, and in any event, by virtue of the order of enlargement dated March 22,

2005, the defendants’ response was timely.

2. Plaintiffs’ motion to reconsider

In a motion filed on April 6, the plaintiffs seek reconsideration of the court’s prior

order denying their motions to recuse and to confirm that they had made proper service.’

The court denies the motion to reconsider.

3. Defendants’ motion to dismiss and motion for summary judgment

In their complaint, the plaintiffs allege that plaintiff David Watson, Sr. was

forcibly removed from a Wal-Mart store by a Somerset County deputy sheriff. On the

basis of this factual allegation, the plaintiffs have made claims against the Somerset

’ A review of the court file suggests that this order actually appears to have been issued in

another action filed by the plaintiffs at bar.

County Sheriff's Department and “Somerset County,” including claims for assault and

battery (paragraph 2 of the complaint), intentional infliction of emotional distress

(paragraph 3), negligence (paragraph 4), interference with economic advantage and

relations (paragraph 5), fraud (paragraph 5), negligent misrepresentation (paragraph 5),

defamation (paragraph 6), invasion of privacy (paragraph 6), and violation of federal

constitutional rights (paragraph 10). The defendants move for entry of summary

judgment on the state law tort claims on several grounds, including an argument that the

plaintiffs failed to comply with the notice of claim requirements set out in the Maine Tort

Claims Act, 14 M.R.S.A. § 8107. Section 8107(1) requires a claimant to serve a notice of

a tort claim on the prospective respondent within 180 days of the date that such claim

accrues.

Summary judgment is proper only if the record on summary judgment shows that

there are no genuine issues of material fact and that the movant is entitled to judgment as

a matter of law. See M.R.Civ.P. 56. Here, the record on summary judgment establishes

that the plaintiffs have not filed a notice of claim under section 8107. The plaintiffs have

not argued that any exceptions to the notice requirement apply here, and none are

apparent from the record. Because the plaintiffs have not satisfied the predicate to a court

action based on tort claims, judgment must be entered for the defendants on the tort

claims.’

The defendants have moved to dismiss the federal constitutional cause of action

asserted in the complaint, in part on the ground the complaint does not allege conduct by

the Somerset County Sheriff's Department or Somerset County that would constitute a

constitutional deprivation for which either movant could be held liable. See M.R.Civ.P.

12(b)(6). In considering a motion to dismiss for failure to state a claim on which relief

can be granted, the court takes the allegations as true, Brown v. Maine State Employees,

1997 ME 24, 9 5, 690 A.2d 956, 958, and examines the complaint “to determine whether

it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to

relief pursuant to some legal theory.” McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994).

* The parties have presented arguments on whether in fact the defendants are immune

from tort liability under the MTCA. The court need not and does not reach that issue,

because the plaintiffs have not brought their tort claims properly.

Title 42 U.S.C. § 1983 renders liable any person who subjects or causes to be

subjected another person to a constitutional deprivation, when the alleged wrongdoer acts

“under color of any statute, ordinance, regulation, custom or usage... .” The plaintiffs

have brought this action, not against the individual officer who they claim forcibly

removed David Watson, Sr. from the store, but against the Somerset County Sheriff's

Department and Somerset County. A governmental agency cannot be held liable under

section 1983 merely because of an employment relationship with the alleged wrongdoer.

Monell v. New York City Department of Social Services, 436 U.S. 658, 691 (1978).

Rather, any such departmental liability must rest on a showing that it was involved in the

constitutional deprivation through one of the ways set out in section 1983 itself. In

opposing the defendants’ motion, the plaintiffs do not make any persuasive argument that

the defendants allegedly acted under color of a statute, ordinance or regulation.

Therefore, any departmental liability could only be by virtue of a “custom or usage.”

This requires proof (or, at this stage of the proceedings, an allegation) that “the injury

results from an officially sanctioned policy or custom.” Bordanaro v. McLeod, 871 F.2d

1151, 1155 (1st Cir. 1989). See also Monell, 436 U.S. at 694. The plaintiffs have not

alleged that the Somerset County Sheriff’s Department or Somerset County itself, as an

institution, has engaged in any conduct that resulted in harm to any of the plaintiffs.

There is no allegation, for example, of improper official policies regarding the removal of

individuals from business establishments, or of improper training. Therefore, on this

complaint, the plaintiffs have not alleged any ground for relief against the defendants for

any constitutional deprivation.

In their objection to the motion at bar, the plaintiffs may be seen to seek leave to

amend their complaint to allege a violation of 42 U.S.C. § 1983 and its state analogue, 5

MLR.S.A. §4681 ef seg. The request has not been presented as a proper motion. Even if

it had been presented properly, the court would deny it, because it would be unavailing to

the plaintiffs. As is noted above, the court has examined the sufficiency of the

allegations as a section 1983 claim, and the Maine Human Rights Act does not give

protection against state action that is broader than those afforded under section 1983.

Forbis v. City of Portland, 270 F.Supp.2d 57, 61 (D. Me. 2003) (excessive force claim).

For these reasons, the defendants are entitled to dismissal of the plaintiff's

constitutional claims. The court need not and does not address the defendants’ remaining

arguments in support of their motion to dismiss.

The entry shall be:

The plaintiffs’ motions for default, default judgment and reconsideration are

denied.

The defendants’ motion for summary judgment is granted. Summary judgment is

entered for the defendants on all state law tort claims. On the remaining claim, alleging

violation of constitutional rights, the defendants’ motion to dismiss is granted, and the

claim for violation of constitutional rights is dismissed. The defendants are awarded their

costs of court. The court intends this order to constitute a final adjudication of all claims

set out in the complaint.

|

Dated: June 13, 2005 (Ve ZL

: yg ¥ :

Justice, Niainy - Superior Court

Jeffrey L. ‘Hjelm

DAVSE-B-IATSON SR - PLAINTIFF

21 WILLOW DRIVE

NEWPORT ME 04953

LINDA M WATSON) -

21 WILLOW DRIVE

NEWPORT ME 04953

DAVID B WATSON JR -

21 WILLOW DRIVE

NEWPORT ME 04953

DANIEL L WATSON -

21 WILLOW DRIVE

NEWPORT ME 04953

ANDREW A WATSON -

21 WILLOW DRIVE

NEWPORT ME 04953

PLAINTIFF

PLAINTIFF

PLAINTIFF

PLAINTIFF

VS

SOMERSET COUNTY SHERIFFS DEPARTMENT -

11 HIGH ST

SKOWHEGAN ME 04976

Attorney for: SOMERSET COUNTY SHERIFFS DEPARTMENT

PETER MARCHESI - RETAINED 02/25/2005

WHEELER & AREY PA

PO BOK 376

27 TEMPLE ST

WATERVILLE ME 04903-0376

DEFENDANT

SOMERSET COUNTY - DEFENDANT

41 COURT STREET

SKOWHEGAN ME 04976

Attorney for: SOMERSET COUNTY

PETER MARCHESI - RETAINED 02/25/2005

WHEELER & AREY PA

PO BOX 376

27 TEMPLE ST

WATERVILLE ME 04903-0376

Filing Document: COMPLAINT

Filing Date: 02/14/2005

Docket Events:

02/15/2005 FILING DOCUMENT - COMPLAINT FILED ON 02/14/2005

02/15/2005 Party(s): SOMERSET COUNTY SHERIFFS DEPARTMENT

SUMMONS /SERVICE - CERTIFIED MAIL RETURN RECEIPT SERVED ON 02/09/2005

Minor Case Type:

SUPERIOR COURT

PENOBSCOT,

Docket No

53.

BANSC-CV-2005-90032

DOCKET RECORD

GENERAL

INJUNCTIVE RELIEF

AS TO DEFENDANT SOMERSET COUNTY SHERIFF'S DEPARTMENT BY KAREN BLODGETT

02/15/2005 Party(s): SOMERSET COUNTY SHERIFFS DEPARTMENT

SUMMONS /SERVICE ~ CERTIFIED MAIL RETURN RECEIPT FILED ON 02/14/2005

BY PLAINTIFFS PRO SE

02/15/2005 Party({s): SOMERSET COUNTY

SUMMONS/SERVICE - CERTIFIED MAIL RETURN RECEIPT SERVED ON 02/11/2005

AS TO DEFENDANT SOMERSET COUNTY BY ROBIN WEEKS.

Page 1 of 6

Printed on: 06/14/2005

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.