52 F. Supp.2d 117 (1999) | Cited 0 times | D. Maine | May 6, 1999


This action arises out of the May 5, 1996 arrest of PlaintiffJoel Hodsdon ("Plaintiff") in Greenville, Maine on a charge ofcriminal OUI pursuant to Me.Rev.Stat. Ann. tit. 29-A, § 2411.Defendants are Officer Steven Hinckley ("Hinckley"), GreenvillePolice Chief Duane Alexander ("Alexander"), and the Town ofGreenville ("the Town"). Plaintiff claims that he was seizedwithout probable cause and by means of excessive force inviolation of his rights under the Fourth Amendment of the UnitedStates Constitution and various state statutes. Plaintiff alsoasserts a number of common law tort claims including assault,battery, intentional infliction of emotional distress, andnegligence.1 Before the Court is Defendants' Motion forSummary Judgment on all Counts of Plaintiff's Complaint. For thereasons set forth below, Defendants' Motion for Summary Judgmentis GRANTED IN PART and DENIED IN PART.


Summary judgment is appropriate in the absence of a genuineissue as to any material fact and when the moving party isentitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Anissue is genuine for these purposes if "the evidence is such thata reasonable jury could return a verdict for the nonmovingparty." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106S.Ct. 2505, 91 L.Ed.2d 202 (1986). A material fact is one thathas "the potential to affect the outcome of the suit under theapplicable law." Nereida-Gonzalez v. Tirado-Delgado,990 F.2d 701, 703 (1st Cir. 1993). Facts may be drawn from "the pleadings,depositions, answers to interrogatories, and admissions on file,together with the affidavits." Fed.R.Civ.P. 56(c). For thepurposes of summary judgment the Court views the record in thelight most favorable to the nonmoving party. See McCarthy v.Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995).


At approximately 11:00 P.M. on May 5, 1996, Plaintiff wasdriving his pick-up truck home from an establishment known asWhiskey Cove in Greenville, Maine. Plaintiff drove his truck ontoWashington Street and turned left onto Prospect Street. At theend of Prospect Street, Plaintiff signaled, stopped, and turnedright onto Pleasant Street. After proceeding on Pleasant Streetfor approximately four miles, Plaintiff signaled, came to a"rolling stop," and took a left onto Scammon Road. At theintersection of CCCRoad and Scammon Road, Plaintiff signaled, stopped, and turnedright onto CCC Road. While driving on CCC Road, Plaintiff swervedto avoid numerous potholes.

At some point while Plaintiff was on CCC Road, Hinckley, apolice officer for the town of Greenville, signaled to Plaintiffby turning on the lights of his police car that Plaintiff shouldpull over. Plaintiff stopped his truck and rolled down his windowwhen Hinckley approached. Plaintiff asked Hinckley why he hadbeen stopped and Hinckley replied that Plaintiff had run a stopsign. Hinckley then asked whether Plaintiff had been drinking.Plaintiff told Hinckley that he had had "two beers and spacedthem out." Plaintiff admits that the odor of alcohol possibly wasdetectable on his breath during this exchange. Hinckley nextasked Plaintiff to produce his driver's licence, registration,and proof of insurance. Plaintiff gave Hinckley his licence, butwas told to "forget about" the registration and proof ofinsurance when he had difficulty retrieving the documents fromthe glove box. Plaintiff asserts that the glove box had a brokenhinge and was blocked by items piled on the passenger seat.

Plaintiff claims that when he did not hand over hisregistration and insurance documentation, Hinckley becameagitated and began to shout at him, causing him to feel the earlysymptoms of a panic attack. Hinckley ordered Plaintiff to get outof his truck and sit in the police car where he was subjected toa series of field sobriety tests. At Hinckley's request,Plaintiff successfully recited the alphabet and performed amanual dexterity test.2 He also was able to tip his head backand touch his nose with the index finger of each hand and performa heel-to-toe sobriety test, despite the fact that it wasconducted on a slope dotted with potholes.3 Plaintiff wasunable to comply with Hinckley's request to write the alphabet,but he explains that this was due to the loud volume of thepolice radio and to anxiety caused by Hinckley's shouting.

Following the field sobriety examination, Hinckley informedPlaintiff that he was under arrest for driving under theinfluence. According to Plaintiff, Hinckley shouted at him to puthis hands on the hood of the car and spread his legs. Plaintiffcalled Hinckley a "jerk", but followed his orders. Hinckley thenkicked Plaintiff in the calf and handcuffed him behind his back.Plaintiff claims that Hinckley fastened the handcuffs in anunnecessarily tight manner and slammed his head down on thepolice car, denting the hood. Plaintiff responded by callingHinckley obscene names.

After handcuffing Plaintiff, Hinckley attempted to place him inthe police car. Plaintiff resisted. Hinckley then orderedPlaintiff to lie face down on the ground. When Plaintiffhesitated, Hinckley tackled him and held him on the ground byplacing a knee in Plaintiff's back while pulling up on thehandcuffs. According to Plaintiff, Hinckley grabbed him by thehair and slammed his face onto the gravel road severaltimes.4

Hinckley got off Plaintiff but tackled him again when heattempted to get up, hitting him in the ribs and pushing his faceinto the ground. During this altercation, Plaintiff shouted atHinckley to stop hitting him. These shouts were overheard byVincent Waldron, Plaintiff's friend, who was listening to apolice scanner.

While Hinckley was holding Plaintiff on the ground for thesecond time, Alexander arrived at the scene. According toPlaintiff, Alexander and Hinckley placed him in the police carwith unnecessary force.When Plaintiff complained to the officers about being"manhandled" one of them struck him on the head from behind witha baton or flashlight. On the way to the police station,Alexander and Hinckley stopped the police car, removedPlaintiff's handcuffs, and allowed him to urinate. The officersthen replaced the handcuffs and proceeded to the policestation.5

Plaintiff was charged with operating a motor vehicle whileunder the influence of alcohol in violation of Me.Rev.Stat.Ann.tit. 29-A, § 2411.


A. Fourth Amendment

Count I of Plaintiff's Complaint asserts that Defendantsviolated his Fourth Amendment rights by arresting him withoutprobable cause and by means of excessive force, and seeks damagespursuant to 42 U.S.C. § 1983. In their Motion for SummaryJudgment, Defendants argue that Hinckley had probable cause toarrest Plaintiff and that the arrest was accomplished withoutexcessive force. Defendants further argue that Hinckley andAlexander are entitled to qualified immunity. As discussed indetail below, the Court concludes that there was probable causefor Plaintiff's arrest, but that genuine issues of material factpreclude summary judgement as to Hinckley on the excessive forceclaim.

1. Probable Cause

The Fourth Amendment requires that warrantless arrests be basedon probable cause. See Gerstein v. Pugh, 420 U.S. 103, 113-14, 95S.Ct. 854, 43 L.Ed.2d 54 (1975); Alexis v. McDonald's Restaurantsof Mass., Inc., 67 F.3d 341, 349 (1st Cir. 1995). The measure ofprobable cause is whether "at the time of the arrest, the factsand circumstances known to the arresting officers were sufficientto warrant a prudent person in believing that the defendant hadcommitted or was committing an offense," United States v. Bizier,111 F.3d 214, 217 (1st Cir. 1997) (internal quotations omitted).Thus, while "probable cause requires more than mere suspicion, itdoes not require the same quantum of proof as is needed toconvict." Logue v. Dore, 103 F.3d 1040, 1044 (1st Cir. 1997).

In his Response to Defendants' Motion for Summary Judgment,Plaintiff argues that there is a genuine issue of material factas to whether Hinckley and Alexander had probable cause to arresthim for driving under the influence. Plaintiff points to evidencethat he stopped his vehicle at intersections, produced hisdriver's licence at Hinckley's request, and passed several fieldsobriety tests. Plaintiff also notes that there are reasonableexculpatory explanations for why his truck swerved on CCC Street,why he failed to produce his registration and insuranceinformation, and why he was unable to write the alphabet and mayhave appeared unable to perform the heel-to-toe test.

While there may be genuine issues of material fact as to someaspects of Plaintiff's behavior, the Court finds that there ismore than enough undisputed evidence to support a prudentofficer's belief that Plaintiff was driving his vehicle under theinfluence of alcohol. First, Plaintiff admits that he rolledthrough the stop sign at the corner of Pleasant Street andScammon Road shortly before being pulled over by Hinckley forfailing to stop. Second, Hinckley observed Plaintiff's truckswerving as it proceeded on CCC Street. While Plaintiff contendsthat he was swerving to avoid potholes, his driving neverthelesswould have appeared erratic from the perspective of a reasonableofficer in Hinckley's position. Third, Plaintiff told Hinckleythat he had been drinking and conceded that, as Hinckley claims,theofficer may have smelled alcohol on his breath. Fourth, Plaintiffdid not promptly produce his registration and insuranceinformation. Though Plaintiff maintains this was because thehinge on his glove compartment was faulty and there were itemspiled on the passenger seat of his truck, he does not argue thatthese problems were so obvious that Hinckley could not havereasonably concluded that the delay was due to alcoholimpairment. Finally, Plaintiff was unable comply with Hinckley'sorder to write the alphabet. Plaintiff suggest that the Courtshould discount this fact based on his explanation that he wasdistracted by the noise of the police radio and Hinckley'sshouting. The Court concludes, however, that a prudent officerwould not expect the sound of a police radio to distractPlaintiff to the extent that he was unable to write the alphabet.Moreover, even assuming that Hinckley was shouting, Plaintiffdoes not allege that Hinckley's behavior was such that areasonable person in Hinckley's position would have believed thathis own conduct, rather than the influence of alcohol, preventedPlaintiff from writing the alphabet.

The Court is satisfied that undisputed evidence in this caseamounts to probable cause as a matter of law.6 Thus, summaryjudgment is granted with respect to all Defendants on Count I tothe extent that it alleges a claim for a Fourth Amendmentviolation based on lack of probable cause.

2. Excessive Force

In addition to prohibiting arrests without probable cause, theFourth Amendment protects individuals against the unreasonableuse of force by police. Plaintiff alleges that Hinckley andAlexander used force in excess of that permitted by the FourthAmendment to execute his arrest. He further claims that underSection 1983 the Town is liable for the officers' constitutionalviolation and Alexander is liable for Hinckley's unreasonable useof force based on his failure to train, supervise, and disciplinethe junior officer.7

a. Officers' Substantive Liability

In determining whether force employed in connection with anarrest was reasonable, a court looks to "the specific facts atissue, paying particular attention to the crime committed, itsseverity, the threat of danger to the officer and society, and`whether [the suspect] is actively resisting arrest or attemptingto evade arrest by flight.'" Comfort v. Town of Pittsfield,924 F. Supp. 1219, 1228 (Me. 1996) (quoting Graham v. Connor,490 U.S. 386, 396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)). Thisdetermination is informed by the principle that reasonablenessmust be judged from the perspective of the officer at the scene,rather than hindsight, and a recognition that "police officersare often forced to make split-second judgments . . . incircumstances that are tense, uncertain and rapidly evolving."Id. (quoting Graham, 490 U.S. at 397, 109 S.Ct. 1865).

In response to Plaintiff's claim of excessive force againstHinckley and Alexander, Defendants argue both that the degree offorce used was appropriate and reasonable under the circumstancesand that the officers are entitled to qualified immunity.Regardless of the rubric under which the issue is analyzed,however, the Court finds that the focus of its inquiry in thiscase must be the reasonableness of the officers' actions. As theFirst Circuit has observed in connection with a similar claim ofexcessive force,

[i]n theory, substantive liability and qualified immunity are two separate questions and, indeed, may be subject to somewhat different procedural treatment. In police misconduct cases, however the Supreme Court has used the same "objectively reasonable" standard in describing both the constitutional test of liability and the Court's own standard for qualified immunity.

Roy v. Inhabitants of the City of Lewiston, 42 F.3d 691, 695 (1stCir. 1994) (internal citations omitted); but see Hilaire v. Cityof Laconia, 885 F. Supp. 349, 355-358, aff'd, 71 F.3d 20 (1995)(finding police officer entitled to qualified immunity where lawconcerning whether officer "who legitimately uses deadly force inself-defense nevertheless violates the Fourth Amendment byincreasing the likelihood that deadly force will become necessarywas not clearly established").

i. Hinckley

The reasonableness of Hinckley's conduct depends on the factssurrounding Plaintiff's arrest, many of which are in dispute.Plaintiff claims that Hinckley kicked him in the leg, handcuffedhim tightly enough to cause pain, and slammed his head onto thehood of the police car. Plaintiff also alleges that Hinckley"manhandled" him into the police car despite his lack ofresistance. After he responded by resisting and Hinckley wrestledhim to the ground, Plaintiff claims that Hinckley grabbed him bythe hair and slammed his head into the gravel road several times.When he attempted to get up, Hinckley tackled him again, hittinghim in the ribs. Plaintiff presents evidence that at about thistime, he was overheard on a police scanner asking someone to stophitting him.

Plaintiff further claims that Hinckley and Alexander placed himin the police car with unnecessary force and that someone hit himover the head with a baton or flashlight when he complained aboutthe rough treatment. Plaintiff also states that his handcuffswere removed and he was allowed to urinate on the way to thepolice station.

Defendants counter that in the face of Plaintiff's admittedprofanity and resistance, it was objectively reasonable to takephysical hold of Plaintiff, restrain his movements, hold him onthe ground, and physically place him in the cruiser. They denythat Hinckley kicked Plaintiff, slammed his face into the ground,or hit him with a baton or flashlight.

While not every shove in the course of arrest gives rise to aconstitutional violation, see Graham v. Connor, 490 U.S. 386,396, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), the Court isconvinced that a reasonable jury, accepting Plaintiff's versionof events, could find Hinckley's actions unreasonable. See McLainv. Milligan, 847 F. Supp. 970, 976 (Me. 1994) (finding thatalleged conduct of police officer who, after handcuffingplaintiff, "kicked [his] legs out from under him, forced him tohis knees, slammed his chest and face onto the concrete, placedhis knee down on Plaintiff's back, picked his head up by the hairand slammed his face down on to the pavement," if true, violatedFourth Amendment). Unlike the plaintiff in McLain, Plaintiffadmits that he resisted Hinckley's efforts to put him in thepolice car, but alleges that this resistance was a response toHinckley's rough treatment. Under these circumstances, slammingPlaintiff's face into the road could be viewed as an extremeresponse to anysafety or flight risk that he posed, especially given the factthat Hinckley and Alexander released him from the police car andhandcuffs on the way to the police station. Moreover, Plaintiff'sallegation that before he offered any resistance, Hinckley kickedhim, banged his head on the hood of the police car forcefullyenough to dent it, and handcuffed him with unnecessary forcecreates a genuine issue of fact as to the reasonableness ofHinckley's conduct.

ii. Alexander

Alexander did not arrive on the scene until much of the actionabout which Plaintiff complains had already occurred. Plaintiffalleges only that Alexander helped Hinckley "manhandle" him intothe police car for the second time and that while Alexander waspresent, someone hit him over the head with a baton or flashlightwhen he asked a question. While a gratuitous blow to the headwith a blunt instrument would clearly constitute excessive force,there is no evidence that it was Alexander who dealt this blow,nor is there evidence that Alexander would have had a "realisticopportunity" to prevent Hinckley from delivering such a swift andspontaneous attack. See Gaudreault v. Municipality of Salem,923 F.2d 203, 207 n. 3 (1st Cir. 1990) (finding that although officerat scene "who fails to take reasonable steps to protect thevictim of another officer's use of excessive force can be heldliable under section 1983 for his nonfeasance," officer cannot beheld liable if he could not have prevented attack). The Courtfinds that Plaintiff's vague allegation of manhandling, standingalone, is not sufficient to create a genuine issue of fact as toexcessive force.

b. Alexander's Supervisory Liability

To demonstrate a supervisor's liability under Section 1983 forthe constitutional violation of a subordinate, a plaintiff mustshow that (i) "the supervisor's conduct or inaction amounts toeither deliberate, reckless or callous indifference to theconstitutional rights of others," and that (ii) "an affirmativelink exists between the street-level constitutional violation andthe acts or omissions of the supervisory officials." Comfort v.Town of Pittsfield, 924 F. Supp. 1219, 1231 (Me. 1996) (citingGutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.1989)). In this case, Plaintiff has put forth no evidencewhatsoever concerning Alexander's training and discipline ofHinckley or lack thereof prior to Plaintiff's arrest, let aloneany evidence showing that such training or disciplinecontributed, to Hinckley's alleged use of excessive force.Indeed, Plaintiff's sole argument is that Alexander negligentlyfailed to supervise Hinckley to the extent that Alexander was"acting in a supervisory capacity on May 5, 1996" and "actuallyparticipated in the constitutional violation." (Pl's Resp. toDefs.' Mot. Summ. J. at 9.) Plaintiff's attempt to piggyback asupervisory liability claim onto his substantive liability claimmust fail, however, given the Court's grant of summary judgmentto Defendants with regard to Alexander's substantive liabilityfor use of excessive force.

3. Municipal liability

A municipality may incur Section 1983 liability when itsofficial policies or customs cause a constitutional deprivation.See Comfort, 924 F. Supp. at 1233. To prevail on a municipalliability claim, a plaintiff must show (1) a municipal custom orpolicy, and (2) that this custom or policy was "the cause of andthe moving force behind the deprivation of constitutionalrights." Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir.1989). Here, Plaintiff argues that the Town is liable forviolating his Fourth Amendment rights "based on Alexander'sconduct, and his authority as the decision maker over policepolicy." (Pl.'s Resp. to Defs.' Mot. Summ. J. at 10.)

This argument is not persuasive. Regardless of whetherAlexander could be characterized as a policymaker, see Comfort,924 F. Supp. at 1233-34, Plaintiff haspresented absolutely no evidence that he was subjected toexcessive force by Hinckley pursuant to some police policyinstituted or acquiesced to by Alexander. See. id. (denyingsummary judgment based on genuine issue of fact as to whetherpolice actions were taken pursuant to police policy in light ofevidence that police chief "encouraged, demanded and evenapplauded the use of unconstitutionally excessive force againstarrestees"); Bordanaro, 871 F.2d at 1156 (finding court properlydenied defendants' motion for judgment notwithstanding verdict onmunicipal liability claim based on evidence that policedepartment had "longstanding, wide-spread, and faciallyunconstitutional practice of breaking down doors without awarrant when arresting a felon"). The Court grants summaryjudgment to Defendants on Count I with respect to the municipalliability claim.

B. State Statutory Claims

In Count II of his Complaint, Plaintiff seeks recovery, againstall three Defendants under the MCRA for violation of his rightsunder Me.Rev.Stat.Ann. tit. 17, § 2931, Me.Rev.Stat.Ann. tit.17-A, §§ 107-108, and Maine Rev. Stat. Ann. tit. 15, §7048 As an initial matter, the Court observes thatMe.Rev.Stat, Ann. tit. 17, § 29319 and. Me.Rev.Stat.Ann.tit. 17-A, §§ 107-10810 are criminal statutes and as suchcannot form a basis for civil liability under the MCRA. SeeMcLain v. Milligan 847 F. Supp. 970, 972 n. 1 (Me. 1994)(noting with approval plaintiff's withdrawal of claim underMe.Rev.Stat.Ann. tit, 17, § 2931 "as that provision islimited to criminal, not civil actions"). In contrast,Me.Rev.Stat.Ann. tit. 15, § 704 provides for civil liabilityagainst police officers who act "wantonly or oppressively" inexecuting an arrest.11 In light of the Court'sfindings with regard to Plaintiff's Fourth Amendment claims, theSection 704 claim against Hinckley alone survives Defendants'Motion for Summary Judgment because there exists a genuine issueof material fact concerning his use of force.

C. Tort Claims

Counts III and VI of Plaintiff's Complaint assert claimsagainst Hinckley and Alexander for assault, battery, intentionalinfliction of emotional distress (Count II), and negligence(Count VI). Defendants seek summary judgment on these claimsbased on the personal immunity provision of the Maine Tort ClaimsAct, Me.Rev.Stat, Ann. tit. 14, § 8111 ("MTCA"). The MTCAgenerally immunizes governmental employees from civil liabilityfor intentional and discretionary acts.12 A police officer'suse of force to execute a warrantless arrest is considereddiscretionary conduct under the MTCA. See Leach v. Betters,599 A.2d 424, 426 (Me. 1991); McLain v. Milligan, 847 F. Supp. 970,977 (Me. 1994). An officer is immune from civil liability fordiscretionary conduct unless the conduct so "clearly exceeded, asa matter of law, the scope of any discretion he could havepossessed in his official capacities as a police officer." Polleyv. Atwell, 581 A.2d 410, 414 (Me. 1990).

Applying this standard, the Court finds that Alexander isentitled to discretionary immunity as a matter of law for hislimited role in Plaintiff's arrest. "Manhandling" Plaintiff intothe police car does not clearly exceed the scope of Alexander'sdiscretion as a police officer, and Plaintiff sets forth noevidence that it was Alexander who hit him with the flashlight orbaton. The Court further finds, however, that the existence of agenuine issue of material fact as to whether Hinckley's conductclearly exceeded the scope of his discretion precludes summaryjudgment with respect to him. See Comfort, 924 F. Supp. at 1237(finding genuine issue of material fact as to whether policeofficers exceeded scope of discretion based on evidence that theyhandcuffed plaintiff, hit him in head, and shoved head againstdoor jamb).


For the reasons stated above, the Court GRANTS IN PART andDENIES IN PART Defendants' Motion for Summary Judgment.Specifically, the Court:

(1) GRANTS Defendants' Motion for Summary Judgment on Counts I &II as they relate to arrest without probable cause in violationof the Fourth Amendment;

(2) DENIES Defendants' Motion for Summary Judgment on Counts I &II as they relate to Hinckley's alleged use of excessive force inviolation of the Fourth Amendment and GRANTS summary judgment onCounts I & II as they relate to Alexander's alleged use ofexcessive force in violation of the Fourth Amendment and to theTown's liability for the alleged use of excessive force byAlexander and Hinckley;

(3) GRANTS Defendants' Motion for Summary Judgment on Counts I &II as they relate to the Fifth and Fourteenth Amendment of theUnited States Constitution;

(4) GRANTS Defendants' Motion for Summary Judgment on Count II asit relates to Article 1 Sections 1, 6, and 6-A of the MaineConstitution, Me.Rev.Stat.Ann. tit. 17, § 2931, andMe.Rev.Stat.Ann. tit, 17-A, §§ 107-108;

(5) DENIES Defendants' Motion for Summary Judgment on Count II atit relates to Hinckley's violation of Me.Rev.Stat.Ann. tit. 15,§ 704 and GRANTS Defendants' Motion as it relates toAlexander and the Town's violation of Me.Rev.Stat.Ann. tit. 15,§ 704;

(6) DENIES Defendants' Motion for Summary Judgment on Count IIIas it relates to the assault, battery, and intentional inflictionof emotional distress claims against Hinckley and GRANTS summaryjudgment as it relates to the assault, battery, and intentionalinfliction of emotional distress claims against Alexander;

(7) GRANTS Defendants' Motion for Summary Judgment on the CountIV common law negligence claim against the Town;

(8) GRANTS Defendants' Motion for Summary Judgment on the Count Vclaim against Alexander for negligent supervision; and

(9) DENIES Defendants' Motion for Summary Judgment on Count VI asit relates to the negligence claim against Hinckley and GRANTSsummary judgment as it relates to the negligence claims againstAlexander.


1. In his six-count Complaint, Plaintiff asserts claimsagainst all Defendants for violation of his rights under theFourth, Fifth, and Fourteenth Amendments of the United StatesConstitution (Count I), as well as his rights under Article I,Sections 1, 6, and 6-A of the Maine Constitution, andMe.Rev.Stat.Ann. tit. 15, § 704, Me.Rev.Stat.Ann. tit. 17,§ 2931, and Me.Rev.Stat.Ann. tit. 17-A, §§ 107-108 (CountII) for which he seeks damages under 42 U.S.C. § 1983 and theMaine Civil Rights Act, Me.Rev.Stat.Ann. tit. 5, § 4682("MCRA"). The Complaint also asserts claims for assault, battery,intentional infliction of emotional distress (Count III), andnegligence (Count VI), against Hinckley and Alexander, negligenceagainst the Town (Count IV), and negligent supervision againstAlexander (Count V).

In his Response to Defendants' Motion for Summary Judgment,Plaintiff states that he does not oppose summary judgment withrespect to his claims under the Fifth Amendment, Article I,Sections 1, 6, and 6-A of the Maine Constitution, and hisnegligence claim against the Town. Plaintiff also withdraws hisdemand for punitive damages.

The Court grants summary judgment as in the FourteenthAmendment claim in Counts I and II to the extent that it isasserted as an independent constitutional violation sincePlaintiff has articulated no theory of liability.

2. Hinckley claims that Plaintiff was unable to recite thealphabet.

3. Hinckley denies that Plaintiff was unable to touch his noseor walk heel-to-toe.

4. Defendants deny that Hinckley shouted at Plaintiff, kickedhim, applied the handcuffs too tightly, slammed his head into theground, or otherwise acted inappropriately or with excessiveforce.

5. Defendants deny that Hinckley and Alexander "manhandled"Plaintiff into the police car or hit him on the head.

6. The Court need not reach the issue of qualified immunityraised by Defendants with respect to this claim because Plaintiffhas failed to establish a Fourth Amendment violation based on theabsence of probable cause. See Aversa v. United States,99 F.3d 1200, 1215 (1st Cir. 1996) ("a court may . . . bypass thequalified immunity analysis if it would be futile because currentlaw forecloses the claim on the merits").

7. In his Response to Defendants' Motion for Summary Judgment,Plaintiff refers to his Section 1983 municipal liability claim asCount IV of his Complaint. After careful examination of theComplaint, however, the Court finds that the municipal liabilityclaim. is contained in Count I, while Count IV states a claimagainst the Town for common law negligence. As noted above,Plaintiff has withdrawn his negligence claim against the Town.

As made clear by his Response to Defendants' Motion for SummaryJudgment, Plaintiff's Section 1983 claim against Alexander forsupervisory liability is stated in Count V of his Complaint,notwithstanding Defendants' treatment of Count V as a claim forcommon law negligence in their Motion for Summary Judgment.

8. To the extent that Count II also seeks damages for a FourthAmendment violation pursuant to the MCRA, the Court disposes ofthis claim in the same way that it disposed of Plaintiff's FourthAmendment claims under Section 1983. See Grenier v. KennebecCounty, 733 F. Supp. 455, 458 n. 6 (Me. 1990) (noting that MCRA"was patterned after 42 U.S.C. § 1983"); Comfort, 924 F.Supp. at 1236 (granting summary judgment on Section 1983 and MCRAexcessive force claims on same basis).

9. The statute provides:

No person may, by force or threat of force, intentionally injure, intimidate or interfere with, or intentionally attempt to injure, intimidate or interfere with or intentionally oppress or threaten any other person in the free exercise or enjoyment of any right or privilege, secured to him by the Constitution of Maine or laws of the State or by the United States Constitution or laws of the United States.

Me.Rev.Stat.Ann. tit. 17, § 2931 (West Supp. 1998-99).

10. Me.Rev.Stat.Ann. tit. 17-A, § 107 is entitled"Physical force in law enforcement," while Me.Rev.Stat.Ann. tit.17-A, § 108 is entitled "Physical force in defense of aperson."

11. The statute provides in relevant part:

Every . . . police officer shall arrest and detain persons found violating any law of the State or any legal ordinance or bylaw of a town, until a legal warrant can be obtained and may arrest and detain such persons against whom a warrant has been issued though the officer does not have the warrant in his possession at the time of the arrest, and they shall be entitled to legal fees for such service; but if, in so doing, he acts wantonly or oppressively, or detains a person without a warrant longer than is necessary to procure it, he shall be liable to such person for the damages suffered thereby.

Me.Rev.Stat.Ann. tit. 15, § 704 (West 1980).

The statute has been assumed to prohibit the unreasonable use offorce as well as arrests without probable cause. See Leech v.Betters, 599 A.2d 424, 426 (Me. 1991) (presuming unreasonable useof force constitutes wanton and oppressive conduct).

There has been some uncertainty about whether Me.Rev.Stat.Ann.tit. 15, § 704 survived the enactment of the Maine TortClaims Act, Me.Rev.Stat.Ann. tit. 14, § 8111. Addressing thisissue in 1991, the Maine Law Court assumed "that section 704remain[ed] in effect and vital after the enactment of the MaineTort Claims Act." See Leach, 599 A.2d at 426. Writing for the.District of Maine, Judge Hornby later found that the MTCAabrogates Section 704, but noted that the Court would "grantsummary judgment in favor of defendant" even if "an exception toimmunity for `wanton and oppressive' conduct still existed."Jackson v. Inhabitants of the Town of Sanford, Civ. No.94-12-P-H, 1994 WL 589617 at *7 n. 2 (Me. Sept.23, 1994). In 1995, theMaine Law Court explicitly declined to reach the abrogationissue, yet concluded that "assuming that section 704[was]applicable to the instant case," the defendants did not engagedin wanton and oppressive conduct. See Creamer v. Sceviour,652 A.2d 110, 115 (Me. 1995). One year later, this Court deniedsummary judgment to defendants on a Section 704 claim, butreserved judgment as to the statute's ultimate validity. SeeComfort, 924 F. Supp. at 1236 n. 15 (Brody, J.).

Against this uncertain precedential backdrop and in the absenceof any discussion of the issue by Defendants, the Court cannotconclude that Plaintiff's claim is foreclosed.

12. The MTCA provides in relevant part:

Notwithstanding any liability that may have existed at common law, employees of governmental entities shall be absolutely immune from personal civil liability for the following:

C. Performing or failing to perform any discretionary function or duty, whether or not the discretion is abused; and whether or not any statute, charter, ordinance, order, resolution, rule or resolve under which the discretionary function or duty is performed is valid;

E. Any intentional act or omission within the course and scope of employment provided that such immunity shall not exist in any case in which an employee's actions are found to have been in bad faith.

Me.Rev.Stat.Ann. tit. 14, § 8111(1)(C) & (E) (West1997).

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