242 F. Supp.2d 24 (2002) | Cited 0 times | D. Maine | December 31, 2002


No objections having been filed to the Magistrate Judge's RecommendedDecision filed December 5, 2002 the Recommended Decision is accepted.Accordingly, it is ORDERED that Defendant Thomas Richmond's Motion forSummary Judgment on Count II and the Town of Carmel's Motion to RemandCount I are GRANTED and Plaintiff's Motion for Partial Summary Judgmentis DISMISSED WITHOUT PREJUDICE.


Plaintiff Earle McSorley sued Defendants Thomas Richmond and the Townof Carmel in Penobscot Superior Court on May 20, 2002 with a Complaintalleging two counts, a state law claim against the Town to quiet title ina certain parcel of land and a federal civil rights claim against ThomasRichmond, the Town's manager. Defendants removed the case to this Courton June 3, 2002 due to the existence of federal question jurisdiction. OnAugust 15, 2002, Plaintiff moved for partial summary judgment on hisquiet title claim. On October 17, 2002, Defendants moved for summaryjudgment against the federal claim and for remand of the quiet titleclaim. I RECOMMEND that the Court DISMISS Plaintiff's Motion withoutprejudice, GRANT Defendant Thomas Richmond's Motion on Count II, andDefendant Town of Carmel's Motion to remand Count I to the state court.

Summary Judgment Material Facts

Summary judgment is warranted only if "the pleadings, depositions,answers to interrogatories, and admissions on file, together with theaffidavits, if any, show that there is no genuine issue as to anymaterial fact and that the moving party is entitled to a judgment as amatter of law." Fed.R.Civ.P. 56(c); Santiago-Ramos v. Centennial P.R.Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000). The following facts aredrawn from the parties' Local Rule 56 statements of material facts, foundin the court's record at docket numbers 9, 15, 18, 27 and 29.1

Plaintiff Earle McSorley and his wife, Party-in-Interest GlennisMcSorley, reside together in the Town of Carmel on a piece of propertysituated along the Horseback Road ("the subject parcel"). According toMr. McSorley, he and Glennis McSorley are "joint owners" of the subjectparcel. Docket No. 29, ¶ 2. In September 1993, the Town closed a sectionof the Horseback Road because a gravel pit operation Mr. McSorleyconducted on the property had undermined the road's foundation,jeopardizing the safety of the traveling public. The Town conductedlitigation against Mr. McSorley for causing the dangerous condition andobtained relief in an order issued by the Penobscot County Superior Courton October 25, 1994. The order mandated that Mr. McSorley refill andregrade his gravel pitby August 31, 1995 and called for sanctions of$50.00 per day in the event of non-compliance. Mr. McSorley failed tocomply and was found in contempt of court on August 31, 1999 by theSuperior Court. The contempt order imposed sanctions of $2,600.00, and$50.00 per day until the pit should be refilled. The Town also obtained arenewal writ of execution, which amounted to $41,050.00 as of October16, 2001. Docket No. 15, ¶¶ 5, 7-10.

Sometime in the course of the ensuing year, the Town decided to levy onits writ of execution by means of a sheriff's sale. To this end, theTown's municipal counsel, Bernstein Shur Sawyer & Nelson, prepared aNotice of Sale and directed the Penobscot County Sheriff's Department topost the Notice in the Town of Carmel and in two adjacent towns as well.See 14 M.R.S.A. § 2202. Municipal counsel further arranged forpublication of the Notice in the Bangor Daily News for three consecutiveweeks, with the first publication occurring 30 days or more prior to thesale. See id. On September 26, 2001, municipal counsel delivered a copyof the Notice to Glennis McSorley at her residence. Municipal counsel didnot, however, deliver a copy of the Notice to Earle McSorley. Docket No.15, ¶¶ 13-5, 17; Docket No. 9, ¶¶ 3-4. Rather than delivering a copy ofthe Notice to Mr. McSorley, municipal counsel sent a copy of the Noticeto Mr. McSorley's counsel with cover stating that "you are being sent acopy of this notice of sheriff's sale as counsel to the judgment debtorin a civil action brought by the Town of Carmel against Earle McSorley."Docket No. 18, ¶ 23. Personnel at the office of Mr. McSorley's counselsigned for the certified letter on September 26, 2001, more than 30 daysprior to the sale. Municipal counsel apparently sent the Notice to Mr.McSorley's counsel because Mr. McSorley's counsel had previouslyinstructed municipal counsel not to serve any documents directly uponMr. McSorley, but to "simply direct them to my attention with anacceptance of service on his behalf which I would then sign." Docket No.18, ¶ 19. Municipal counsel did not include with the Notice an acceptanceof service form for Mr. McSorley's counsel to sign. At his subsequentdeposition, Mr. McSorley testified under oath that he never "received"notice of the sale from his counsel or any other source. Docket No. 15, ¶23; Docket No. 29, ¶ 10.2

On October 25, 2001, five days before the scheduled date of the sale,Mr. McSorley's counsel mailed a letter to the Town's counsel and to thePenobscot County Sheriff in which he objected to the sale based on thefact that "procedural requisites for a sheriff's sale have not been met."Docket No. 18, ¶ 24 (see also 14 M.R.S.A. § 2202). Municipal counselreceived the objection, but rather than jettisoning the pending sale andstarting over, the sale proceeded as scheduled. On October 30, 2001,Deputy Sheriff Alan Cole conducted the sale and conveyed the property tothe Town by sheriff's deed. Docket No. 18, ¶¶ 24, 25.

With respect to Defendant Thomas Richmond's conduct, Plaintiff McSorleyoffers only this: that it was Thomas Richmond who placed the Town's bidat the sheriff's sale.3 Docket No. 29, ¶ 20.


Title 42 U.S.C. § 1983 confers upon every United States citizen aright to redress against any person who, acting under color of statelaw, causes a deprivation of his or her "rights, privileges, orimmunities secured by the Constitution and laws" of the United States.Earle McSorley contends that Thomas Richmond violated his FourteenthAmendment rights to substantive and procedural due process by failing to"serve" him with notice of the sheriff's sale, by permitting the sale togo forward despite the lack of service, and by bidding on behalf of theTown without first obtaining express authorization from the Town.Plaintiff's Memorandum of Law in Opposition to Defendants' Motion forSummary Judgment and Remand, Docket No. 28, at 2, 5. The § 1983 claimis advanced solely against Defendant Thomas Richmond. The Town is notnamed as a defendant in this claim. See Complaint, Count II.

There are at least two reasons why the facts relating to Mr. Richmond'sauthority to bid cannot support a § 1983 claim premised on dueprocess. Most fundamentally, whatever may or may not have transpiredbetween the Town and Mr. Richmond in relation to Mr. Richmond'sauthorization to participate in the sheriff's sale, it was something thatwas preliminary to the sale and did not itself work a deprivation of Mr.McSorley's property rights. Secondly, and almost as fundamentally, Mr.McSorley did not have a right to "process" in relation to the Town'sinternal deliberations on this administrative matter. He possessed noright to receive notice or to be heard concerning whether or not the Townwould levy its execution by means of the sheriff's sale. Consequently,the only colorable issues raised by Mr. McSorley are whether his failureto receive actual notice and Thomas Richmond's participation in thebidding can support a civil rights claim against Thomas Richmond.

Defendant Thomas Richmond bases his motion for summary judgment on theParratt-Hudson doctrine and the doctrine of qualified immunity. However,it is not at all clear whether the Parratt-Hudson doctrine is applicableto the facts of this case4and a full-scale qualified immunityanalysis is unnecessary, given that there are more fundamental obstaclesto Mr. McSorley's § 1983 claim against Thomas Richmond: nocausation.

When qualified immunity is raised in this Circuit, the analyticalsequence of events is supposed to be (1) whether the allegations or factsmake out a constitutional violation; if so, (2) whether theconstitutional right at issue was clearly established; and, if so, (3)whether a reasonable office holder in the defendant's position would,under similar circumstances, recognize that his or her acts would work aconstitutional deprivation. Suboh v. District Attorney's Office,298 F.3d 81, 90 (1st Cir. 2002). Of course, tied into the question ofwhether a constitutional violation occurred is the question of who causedthe violation. This question could be addressed as an aspect of the thirdqualified immunity element, or as a more basic element of a proper §1983 claim. Because a § 1983 claim is defendant-specific, a plaintiffmust show how each defendant's own, personal conduct caused the plaintiffto be deprived of a constitutional right. 42 U.S.C. § 1983 (creatingliability for "[e]very person who . . . subjects, or causes to besubjected, any citizen . . . to the deprivation of any rights, privilegesor immunities. . . ."); Maldonado-Santiago v. Velazquez-Garcia,821 F.2d 822, 831 (1st Cir. 1987) ("Section 1983 imposes a causationrequirement similar to that of ordinary tort law."). On balance, it seemsmore appropriate to address the issue of causation outside of thequalified immunity context in order to avoid opining about whether someperson not named as a defendant in this action might have subjected Mr.McSorley to a constitutional deprivation.

1. Thomas Richmond was not responsible for providing Plaintiff with notice.

Mr. McSorley does not contend that he was entitled to a hearing priorto the sheriff's sale. After all, the Town's right to levy on the writ bymeans of the sheriff's sale is conclusively established. The writ arosefrom a judicial proceeding in the Superior Court and there is nosuggestion that that proceeding did not comply with due process.Instead, the gravamen of Mr. McSorley's claim is that he did not receiveadequate notice of the sale. The provision of adequate notice isinherently a procedural due process concern. To be adequate for purposesof the Fourteenth Amendment, "notice must be of such nature as reasonablyto convey the required information, and it must afford a reasonable timefor those interested to make their appearance. Mullane v. Central HanoverTr. Co., 339 U.S. 306, 313 (1950).

Title 14 M.R.S.A. § 2202 reflects the Maine Legislature'sprescription for providing notice to parties interested in asheriff'ssale or "levy by sale." Although non-compliance with this state statutedoes not necessarily mean that the United States Constitution has beenviolated, Mr. McSorley contends that the facts of his case reflectviolations of both the statutory and constitutional standards.Ultimately, this Court need not determine whether either standard hasbeen breached. The levy by sale statute clearly places the duty ofproviding notice on the sheriff, not on the party holding the writ ofexecution. Furthermore, Mr. McSorley admits that it was the PenobscotCounty Sheriff's Office and the Town's municipal counsel who undertook toprovide Mr. McSorley with notice, not Thomas Richmond. Docket No. 15, ¶14; Docket No. 18, ¶ 14.

Mr. McSorley has not presented any other facts reflecting conduct onthe part of Thomas Richmond that contributed to the non-provision ofactual notice. In sum, Thomas Richmond cannot be held liable fordepriving Mr. McSorley of property without constitutionally adequatenotice because Thomas Richmond was not responsible for and did not assumeresponsibility for providing notice.

2. Thomas Richmond's participation in the bidding process did not cause a deprivation of Plaintiff's due process rights.

This aspect of Mr. McSorley's § 1983 claim does not implicatesubstantive due process rights any more than the last. Mr. Richmond'smere participation in the bidding process did not amount to "conscienceshocking" or "abusive" conduct. County of Sacramento v. Lewis,523 U.S. 833, 847 (1998). Nor did his participation transgress any ofMr. McSorley's "fundamental" rights and liberties. Washington v.Glucksberg, 521 U.S. 702, 720 (1997). As for procedural due process, itis plain that Mr. McSorley was not entitled to notice or an opportunityto be heard in connection with whether or how much Thomas Richmond wouldbid. Mr. McSorley's only constitutional entitlement was to reasonableadvance notice of the time and place of the sale and this was anentitlement that someone other than Thomas Richmond was obliged toprovide.


For the reasons stated herein, I RECOMMEND that the Court GRANTDefendant Thomas Richmond's Motion for Summary Judgment on Count II andthe Town of Carmel's Motion to Remand Count I and DISMISS Plaintiff'sMotion for Partial Summary Judgment WITHOUT PREJUDICE.

1. For counsels' benefit the following docket numbers correspond tothe following summary judgment filings:

Docket No. 9-Plaintiff's Statement of Material Facts;

Docket No. 15-Defendants' Opposing Statement of Material Facts;

Docket No. 18-Plaintiff's Reply Statement of Material Facts;

Docket No. 27-Defendants' Statement of Undisputed Material Facts;

Docket No. 29-Plaintiff's Response to Defendants' Statement of Material Facts and Statement of Additional Material Facts.

2. I am willing to assume this fact for purposes of summary judgment,although I note that Mr. McSorley's deposition testimony is anything butclear on this point. Deposition of Earle McSorley at 41-44 (indicating,among other things, that he had "heard rumors about [the sale]"). Thedeposition transcript is appended to Defendants' Statement of UndisputedMaterial Facts, Docket No. 27.

I am also concerned by the following statement by Mr. McSorley'scounsel, which seems to demand an inference that Mr. McSorley heard morethan rumors from his own wife:

"At no point between the receipt of [the Notice] and the actual sheriff's sale . . . did I have any discussions with Earle McSorley. Nor did I ever mail the sheriff's sale notice and enclosure letter to Mr. McSorley. . . . I assumed that Mr. McSorley would be personally served or have service left at his usual place of abode, as required by 14 M.R.S.A. § 2202. . . . At some point . . . I became aware, through a conversation with Glennis McSorley, that Earle McSorley had never been personally served, nor served at his usual place of abode."

Declaration of Arthur J. Greif, Docket No. 31, at 2. One has to questionhow Glennis McSorley knew that Mr. McSorley had not received notice.Finally, the record does establish that the Notice was given to GlennisMcSorley at the McSorley residence. It is hard to imagine how this didnot also amount to "leaving [written notice] at [Mr. McSorley's] last andusual place of abode." 14 M.R.S.A. § 2202. Nothing in the statutesuggests that a single notice cannot provide notice to more than oneperson. The Notice can be found at Exhibit 8 to the Affidavits of WendyParadis, Esq. and Thomas Richmond, Docket No. 14.

3. Mr. McSorley also offers that the Town never publicly authorizedMr. Richmond to bid on the property during any prior town meeting andthat the Town did not pay a deposit in order to be eligible to bid, acondition that was apparently imposed on other bidders. Docket No. 29, ¶¶18-20. Neither of these facts reveals conduct on the part of ThomasRichmond, as distinct from "the Town."

4. In O'Neill v. Baker, the First Circuit Court of Appeals suggestedin dicta that a state actor's failure to follow procedures established bystate law might amount to "random and unauthorized" conduct under theParratt-Hudson doctrine. 210 F.3d 41, 47 n. 6 & 50 (2000) (Selya,J., "disassociat[ing]" himself from this statement by Lynch, J., andBoudin, C.J.) (panel decision). However, the doctrine applies in only tworelatively narrow circumstances, where there is "the necessity of quickaction by the State" or where the provision of meaningful predeprivationprocess is otherwise impractical. Parratt v. Taylor, 451 U.S. 527, 539(1981). The facts of this case do not give rise to any exigency, norwould pre-deprivation process be impractical considering thatpre-deprivation process was called for by state law. Thus, the point ofdeparture for Parratt-Hudson appears to be whether a meaningfulpre-deprivation procedure could be followed rather than whether anexisting pre-deprivation procedure was followed. If compliance with thedue process clause requires that pre-deprivation procedures be provided,the availability of post-deprivation remedies is irrelevant. Thus, inZinermon v. Burch, the Supreme Court recognized a procedural due processclaim where pre-deprivation procedures were appropriate and available,but were not provided, even though meaningful post-deprivation remediesmay have existed. 494 U.S. 113, 138-39 (1990).

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