# Shulenburg v. Jamieson > Superior Court of Maine · June 13, 2018 URL: https://www.frixlaw.com/law-library/cases/10811637 ## Case - **Court:** Superior Court of Maine - **Decided:** June 13, 2018 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Judges:** Wayne R. Douglas - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment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/10811637 ## Opinion text STATE OF MAINE SUPERIOR COURT YORK, ss. Civil Action Docket No. CV-16-0 l 7 4 DAVID A. SHULENBURG Plaintiff, MEMORANDUM OF DECISION V. AND ORDER ON MOTION FOR SUMMARY JUDGMENT DAVID W. JAMrESON and DARRELL P. ! . Me. l 994) (in a rrcsliug plaintiff for clisorderly condu 'l, police twisted plairtt1ll's arm s beh ind his bn k; p ickco him up o!T the floor ond c::irricd him uut of apartme11t; kick d h is legs Oll l fr m und r him; forced him tn his k.u es; slammed his c.;h(!S l and face. 11n l(> concrete; kn eed him in his hac k ; and slammed his face onto the pavement) ." Richard~, 2001 ME 132, 'I{ 26, 780 A.2d 281. 11 holding the force used to be excessive "would have made it clear to a reasonable police officer" that the force alleged to have been used against Richards could be held unlawful. fd. (Emphasis added.) Defendants contend that this case is distinguishable from Richards in numerous respects, including: Shulcnburg is male; he was resisting arrest and disobeying lawful commands; he presented a threat to the officers; he was not knocked to the ground; and his injuries were not as pronounced as those of Ms. Richards upon examination at the hospital. See Defendants' Reply Memorandum, at 4. True, the instant case does not involve some of the pertinent facts in Richards; however, in light of the record the differences are not so material as to support summary judgment. There are facts in dispute concerning the circumstances prompting the officers' use of force to take Shulenburg into protective custody as well as the nature and extent of the force employed. Plaintiff alleges that defendants were frustrated and angry with him; aggressively and without provocation grabbed and cuffed him; applied the handcuffs forcefully and in a manner that injured his wrists; forcibly injured his finger and punched him in the kidneys multiple times.4 Viewing the record in the light most favorable to plaintiff, the court cannot conclude as a matter of law that defendants are entitled to invoke qualified immunity at this stage of the case. Even though this case did not involve an arrest for purposes of enforcing a violation of law, Richards and the caselaw it cited present a sufficient foundation of authority to give a "clear signal" to a reasonable police officer about what conduct "falls shorl of the constitutional norm." The conduct alleged Ly Shl1lcnburg (which the officers deny) may or may not bear out 4 Defendants take issue not only with the nature of the force Shulcnburg alleges but also with the extent of injuries he claims to have suffered. See, e.g., (Dc:f."s Repl. 5 -6; Def.'s Add1 S.M.F. 1 2 .) Under Richards, the cxlt:nt of injuries is only H factor involved in the exccssiv force analysis. RicJmrd , 2001 ME 132, ,i '.W , 780 A.2d 28L. These are issues properly addressed at !rial. 12 al trial. In the context of a motion for summary judgment, however, it is sufficient to overcome the defense of qualified immunity. Consequently, the motion for summary judgment is denied as to count I. C. Maine Civil Rights Act Claim Based on 34-B M.R.S. § 3862. Count ll asserts a claim under section 4682(1 A) of the Maine Civil Rights Act, which authorizes a private right of action against one who "intentionally interferes or attempts to intentionally by physical force or violence" with a person's rights under the law. 5 M. R.S. § 4682(1-A) . The claim in count II is expressly predicated on the assertion that defendants "intentionally interfered by physical force with plaintiff's statutory right not to be involuntarily hospitalized" under 34-B M.R.S. § 3862.5 Section 3862(1) authorizes a law enforcement officer to take a person into protective custody if there is probable cause to believe that the person "may be mentally ill and due to that condition the person presents a threat of imminent and substantial physical harm" to himself or others. Id. § 3862(1). Defendants were not acting pursuant to sect.ion 3862(1). There is no suggestion that they were attempting to place Shulenburg in protective custody on the basis of mental illness or because he needed involuntary hospitalization for psychiatric reasons. Defendants assert, and the court agrees, that they had authority and probable cause to take plaintiff into protective custody for emergency medical reasons. For authority, they rely on Maine Department of Public Safety regulations, specifically the Medical Direction and Practice Board (MOP) protocols of the Emergency Medical · ,ou nl II do s not c1ss rt a ·ivil rig hts clai m bas<.:d ge nerally u pon fa lse imprisonm~nl or upun iUegal sei7.ur ·, nor upon a clci.m of u nlawful entry into hi s residence in vio la liun of his fo'o u rth Amqndm ·nL rights . (r\nd plaintiff did no t dci r · ·s defen dants ' argu m en ts on ll ' Int ' r issue in his op position to dcfi ,ru.lams' motion for su rnuinry judgment, and therefore that issue is waived. See Meftlliom v. Derl;y , 2006 M..: 110,111 ,905 A.2d 290 .) 13 Services Bureau. (D.S.M.F. 11 58-59.) The protocols include procedures for treatment and transport of patients. Once a determination of medical urgency is made, if a patient rduses to be transported a further determination is made as to whether the person has capacity to make that decision. A patient without decision··making capacity is "one who has one of the following: altered mental status or intoxicated, confused, delirious, psychotic, comatose, unable to understand the language, or is a minor, el.c." {D.S.M.F. ,i 64.) Here, the paramedic on scene concluded that Shulenburg did not have decision­ making capacity based on a potential head injury; observed symptoms of combativeness and other behaviors; had concerns about Shulenburg's mixed use of alcohol and prescription medications and about his irrational disregard of the potential risk of serious hann and even death posed without immediate medical evaluation. Dr. Nilson at Medical Control confirmed and directed that Shulenburg be transported to the hospital, either voluntarily or by protective custody. (D.S.M.F. n 65, 66, 70-76.) Probable cause is determined under an objective standard. State u. Parkinson, 389 A.2d l, 8 (Me. 1978). The court's determination of whether the involuntary transport was reasonable "turns on whether an objectively reasonable officer would have believed he had probable cause to take [plaintiffj into protective custody . . . . » Alfano, 847 F.3d at. 79. Plaintiff contends that defendants lacked probable cause because of the conflicting opinion given by Shulenburg's primary physician that. he had the present decision-making capacity to refuse treatment (though Dr. Major concurred that he should be Lransported to the hospital). At the same lime, Dr. Major was not present at the scene and did not have all of the information that was available to the on--scene paramedic and Dr. Nilson at Medical Control. Even in light. of the conflicting opinions being offered, based on the information available at the time an objectively reasonable 14 officer would have been justified in believing that medical urgency existed, further medical evaluation was necessary, and Shulenburg was confused to the point where he was incapable of making a rational decision. This was sufficient to establish probable cause to take plaintiff into protective custody. See, e.g. Alfano v. Lynch, 847 F.3d 71, 79 (1st Cir. 2017), citing Cox u. Hainey, 391 F.3d 25, 31 (1st Cir. 2004) (For probable cause, facts known at time would have had to 'give rise to a reasonable likelihood,' of intoxication and incapacity); Crossroads Managed Care Systems, Inc., 195 F.3d 584, 590-91, 594 (10th Cir. 1999) (probable cause to take incapacitated individual into protective custody under a municipal civil protection policy.) The court concludes that defendants had authority and probable cause to take Shulenburg into protective custody. The issue is whether they exercised their authority in a manner that was unreasonable and involved use of excessive force--and that is t.he essence of the claim in count I. Summary judgment as to count IT is granted. D. Punitive Damages Defendants' request for summary judgment on the claim of punitive damages is denied. Punitive damages are available when express or implied malice is found by clear and convincing evidence. Batchelder v. Realty Res. Hosp., LLC, 2007 ME 17,, 13, 914 A.2d 1116, citing Tuttle u. Raymond, 494 A.2d 1353, 1361-1363 (Me. 1985). Plaintiff has asserted facts which support at least a primafacie punitive damage claim, including the element of malice, such as the alleged statements made 1.iy the officers at. the time as recounted above. Though disputed, these and other allegations establish a basis for a prima facie case sufficient to survive summary judgment. Conclusion and Order Fort he foregoing reasons, there are questions of material f'Act concerning whether defendants used excessive force in Laking Shulenburg into protective custody in order 15 to transport him to the hospital and whether the defense of qualified immunity is available. Defendants' motion for summary judgment is therefore denied as to plaintiff's excessive force claim in count l. As to count ll, plaintiff has not established a violation the Maine Civil Rights Act as set out therein; has not established that defendants lacked probable cause to take him into protective custody; and/or or has waived any additional claims in counl IT. Partial summary judgment is wa1Tanted as to count II. Accordingly, it is hereby ordered and the entry shall be: "Defendants' motion for summary judgment granted as to count II and denied as to count I." The clerk may incorporate this Memorandum of Decision and Order on Motion for Summary Judgment by reference on the docket pursuant to M.R. Civ. P 79(a). SO ORDERED. Dated: June 13, 2018 eNTEREo ON THE DOCKET ON: 16 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10811637. Public record. Not legal advice.