MILLER v. KENNEBEC COUNTY

63 F. Supp.2d 75 (1999) | Cited 0 times | D. Maine | August 30, 1999

ORDER AND MEMORANDUM OF DECISION

This civil rights action arises out of the arrest andsubsequent incarceration of Plaintiff Carmen Miller ("Ms.Miller") in connection with an outstanding warrant for failure toappear and failure to pay a fine. Defendants are the Town ofRockport and Rockport Police Officer Brent Davis; KennebecCounty, Kennebec County Sheriff Bryan T. Lamoreau, and Jane Doeof KennebecCounty; and Knox County, Knox County Sheriff Daniel G. Davey, andKnox County Corrections Officer Jeffrey Fuller ("Defendants").Ms. Miller and her husband, Lawrence Miller ("Plaintiffs"),allege generally that her arrest and imprisonment violated theFourth, Fifth, Eighth and Fourteenth Amendments of theConstitution as well as various provisions of state tortlaw.1 Plaintiffs seek compensation for pain and suffering,emotional distress, medical expenses, lost wages, and loss ofconsortium, as well as punitive damages and attorney's fees.Before the Court are two motions for summary judgment: onesubmitted by Davis and Rockport, the other filed on behalf of allother defendants. For the reasons discussed below, both Motionsfor Summary Judgment are GRANTED.

I. SUMMARY JUDGMENT

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).

II. BACKGROUND

On April 13, 1996, the Saturday of the Patriot's Day longweekend, Ms. Miller was operating a motor vehicle with an expiredinspection sticker on Route 90 in Rockport, Maine. She wasstopped by Rockport Police Officer Brent Davis ("Davis") at 1:19P.M. Davis radioed Rockport dispatch and requested that it run acheck on Ms. Miller for outstanding warrants. According to theteletype printout for the Maine Wanted list received by RockportDispatcher Jessika Tassinari ("Tassinari"), Ms. Miller had anoutstanding arrest warrant in Kennebec County arising out of herfailure to appear in court and failure to pay a fine.2 In atelephoneconversation with Tassinari, Kennebec County Dispatcher KennethHatch ("Hatch") confirmed the existence of the warrant andadvised her that a notation on the top of the warrant indicatedthat it was to be executed "by bringing the defendant immediatelybefore a sitting judge."3 Hatch told Tassinari that thisnotation meant that the person named in the warrant was subjectto arrest Monday through Friday during the day.

Tassinari advised Davis by radio of the outstanding warrant andtold him that the warrant required that Ms. Miller be taken"before a judge immediately," and that it specified $235 cashhail.4 Davis acknowledged receipt of Tassinari's message andtold her that he was taking Ms. Miller to the Knox County jailand that she should request Kennebec County to fax writtenconfirmation of the outstanding warrant to that facility.

After speaking with Tassinari, Davis informed Ms. Miller thatshe was under arrest for an unpaid fine. Davis directed Ms.Miller to park her car in a nearby parking lot, then placed her,unhandcuffed, in the back seat of the police car. Davis seatedMs. Miller's passenger, a young girl, in the front seat of thepolice car and proceeded to Ms. Miller's residence where hedropped the child off with Ms. Miller's husband, Lawrence Miller("Mr. Miller"). Davis told Mr. Miller that his wife's arrest wasbased on an outstanding Superior Court warrant for failure to paya fine. Mr. Miller told Davis that the fine had been paid andthat he had the canceled check to prove it. Davis did not waitfor Mr. Miller to produce the canceled check, but insteadtransported Ms. Miller to the Knox County Jail.

Since the Town of Rockport ("Rockport") has no jail facilitiesof its own, persons arrested by Rockport police officers are heldat the Knox County jail. Davis claims that bail is handled by theKnox County Sheriffs Office. Plaintiffs dispute this and contendthat bail is handled by a Bail Commissioner or by the Court.

Upon arriving at the Knox County Jail, Davis had twoconversations with Kennebec County Dispatcher Hatch. In the firstconversation, Hatch told Davis that the warrant could be executedonly on Monday through Friday during the day and that the subjectmust be brought before a sitting judge. Hatch admitted, however,that he was unfamiliar with this type of warrant and did not knowits purpose. Hatch then consulted fellow dispatcher Mark Graham("Graham") who said that in his one experience with this type ofwarrant, law enforcement waited to arrest the person during theweek.5 Davis told Keiththat he was considering contacting a Bail Commissioner to getfurther guidance.

During his second call to Hatch, Davis asked for and was givencontact numbers for several on-duty assistant district attorneysin Kennebec County. Davis then phoned Kennebec County AssistantDistrict Attorney James Mitchell ("ADA Mitchell"), who advisedDavis that Ms. Miller should remain in custody until a judge wasavailable on the following Tuesday.6 Davis did not tell ADAMitchell that Mr. Miller claimed that the fine had been paid.

Davis departed the Knox County jail at approximately 3:00 P.M.after speaking with ADA Mitchell, leaving Ms. Miller at the jailin the custody of the Knox County Sheriffs Department. Aroundthis time, a Kennebec County dispatcher told Sargent Daniel ofthe Knox County Sheriffs Office that Ms. Miller's warrantindicated that she was to be taken directly to a judge. No one atthe Knox County Jail called Desjardin, Clerk of the KennebecCounty Superior Court, for guidance as to the meaning of thewarrant's language.

Later that day, Mr. Miller arrived at the Knox County jailbearing the canceled check proving that his wife's fine had beenpaid. He told an unidentified Knox County deputy that he had thecanceled check and he was there to bail out his wife. The deputytold Mr. Miller that there was no bail regardless of the canceledcheck. Mr. Miller left, but later called the Knox County jail andagain attempted to arrange bail. An unidentified Knox Countycorrections officer told him that his wife could not be freed onbail.

As part of the intake process at the Knox County jail, Ms.Miller was required to shower and submit to a strip search. Whilenaked, Ms. Miller was further required to squat and cough. Shethen was placed in a maximum security cell. Male inmates in thetwo adjoining cells taunted her throughout her stay. After avisit from her husband and another from her in-laws, Ms. Millerwas subjected to strip searches and required to squat and cough.The Policies and Procedures Manual of the Knox County Jail("Manual") authorizes strip searches of pre-trial inmates who arebeing held for murder, and Class A, B or C crimes or when thereis reasonable suspicion to believe that an inmate is concealingcontraband and is about to come in contact with other inmates ofthe facility. Body cavity searches are authorized only when thereis probable cause to believe an inmate is concealing contrabandor evidence inside a body cavity, and then only with a warrant,unless there are exigent circumstances. Jeffrey Fuller ("Fuller")was a corrections officer on duty at the Knox County jail onSaturday, April 13, 1996. Daniel G. Davey ("Davey") was theSheriff of Knox County during the time relevant to Plaintiffs'claims.

Following several calls on Ms. Miller's behalf by AttorneyPamela Ames, Mr. Miller was allowed to bail out his wife onMonday, April 15, 1996 with the condition that she appear inKennebec County Superior Court the next day.

III. DISCUSSION

As specified above, Plaintiffs' Complaint asserts thatDefendants violated Ms. Miller's rights under several differentconstitutional amendments. In their (Corrected) Response toDefendants' Motions for Summary Judgment, however, Plaintiffsconcede that "for purposes of liability under Section 1983, thiscase should be analyzed under the Fourth amendment standardsgoverning unreasonable searchesand seizures as applied to the States through the FourteenthAmendment to the United States Constitution." ((Corrected) Resp.Defs.' Mots. Summ. J. at 6.) The Court therefore will confineitself to an examination of the Fourth Amendment liability of (1)Davis and Rockport arising out of Ms. Miller's arrest, (2)Lamoreau, Jane Doe, and Kennebec County for their role in Ms.Miller's arrest and incarceration at the Knox County Jail, and(3) Davey, Fuller, and Knox County for events at the jail.Following its analysis of the Fourth Amendment claims, the Courtbriefly will address Plaintiffs' tort claims.

A. Fourth Amendment

1. Liability of Davis and Rockport

a. Davis

The Fourth Amendment guarantees "[t]he right of the people tobe secure in their persons . . . against unreasonable searchesand seizures." U.S. Const. amend. W. Plaintiffs correctly assertthat Ms. Miller was seized within the meaning of the FourthAmendment when Davis informed her that she was under arrest,placed her in the back seat of a police car, and transported herto the Knox County Jail. They claim that this seizure wasunreasonable because it contravened the arrest warrant specifyingthat the subject must be taken immediately before a judge.

Davis contends that he acted reasonably on the basis of afacially valid arrest warrant and that, in any case, he isentitled to qualified immunity because a reasonable officer wouldnot have known that what he was doing violated clearlyestablished law.

While objective reasonableness is the standard by which a courtdetermines both substantive liability under the Fourth Amendmentand qualified immunity under 42 U.S.C. § 1983, the SupremeCourt has recognized that a police officer who violates theFourth Amendment nevertheless may enjoy qualified immunity. SeeAnderson v. Creighton, 483 U.S. 635, 643, 107 S.Ct. 3034, 97L.Ed.2d 523 (1987). In this case, since the Court is satisfiedthat Davis is entitled to qualified immunity, it need not reachthe question of whether his conduct constituted a FourthAmendment violation.

To assess a claim of qualified immunity a court must determine(i) whether the plaintiff has alleged the violation of a clearlyestablished right, and (ii) whether a reasonable, similarlysituated defendant would have understood that the challengedconduct violated that clearly established right. See Swain v.Spinney, 117 F.3d 1, 9 (1st Cir. 1997); Comfort v. Town ofPittsfield, 924 F. Supp. 1219, 1227 (D.Me. 1996). Davis arguesthat a reasonable officer would not have believed that an arrestof Ms. Miller was unreasonable under the circumstances. Asevidence of the reasonableness of his conduct, Davis points tothe undisputed fact that the arrest warrant for Ms. Miller wasfacially valid. Davis also claims that the language of the arrestwarrant itself was ambiguous. He contends that he actedreasonably in the face of such ambiguity by seizing Ms. Miller,consulting with ADA Mitchell as soon as possible after theseizure, and following his advice. Davis further claims that hewas under no reasonable obligation to rely on the Kennebec Countydispatcher's interpretation of the warrant.

While "an arrest executed pursuant to a facially valid warrantgenerally does not give rise to a cause of action," Fair v.Fulbright, 844 F.2d 567, 569 (8th Cir. 1988) (citing Baker v.McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979)),Plaintiffs maintain that the seizure of Ms. Miller violated theFourth Amendment because that it exceeded the scope of thewarrant. According to Plaintiffs, the warrant unequivocallymandated that Ms. Miller immediately be brought before a sittingjudge. Because Davis was aware that there was no judge availableuntil the Tuesday, his seizure of Ms. Miller on Saturday wasunauthorized by the warrant and therefore unreasonable.

Plaintiffs provide no support for the proposition that arrestswhich exceed the scope of the warrant are per se unreasonable.Nevertheless, generalizing from case law concerning the executionof search warrants, the Court assumes that an arrest supportedonly by a warrant must be conducted within the constraints ofthat warrant. See United States v. Upham, 168 F.3d 532, 536 (1stCir. 1999) (observing that "[i]t is settled law that the searchand seizure conducted under a warrant must conform to thewarrant"). The Court does not accept, however, Plaintiffs'argument that the language on the particular warrant at issue inthis case was unambiguous. For one thing, the heading of thewarrant directing the arresting officer to "bring[] defendantimmediately before a sitting judge" arguably is contradicted bylanguage in the body of the warrant commanding the officer to"arrest said defendant and bring her before the court," as wellas by language regarding bail which suggests that the defendantcould be brought to jail rather than to court. Moreover, theevidence indicates that even between Kennebec County dispatcherand ADA Mitchell there was disagreement as to the meaning of thewarrant.

Fortunately, the Court does not need to construe the languageof the warrant to decide the issue at hand. It is enough to findthat when confronted with this ambiguity, Davis did everything areasonable officer could be expected to do. After confirming theexistence of the warrant with Kennebec County via the Rocklanddispatcher, Davis certainly was not unreasonable in rejecting theadvice of the Kennebec County dispatcher and deciding to takecustody of Ms. Miller pending further clarification of thewarrant's language since the dispatcher had no supervisoryauthority over him and no legal training. Moreover, though Daviscould have elected to wait at the Miller residence until Mr.Miller produced the canceled check, he was not unreasonable indeclining to do so. See Baker v. McCollan, 443 U.S. 137,145-46, 99 S.Ct. 2689, 61 L.Ed.2d 432 (1979) (finding thatpolice officer "executing an arrest warrant is not required toinvestigate every claim of innocence"); Whiting v. Kirk,960 F.2d 248, 252 (1st Cir. 1992). Davis also was not unreasonable inabiding by the advice of ADA Mitchell, the most qualified personavailable to interpret the language of the warrant.7 SeeArnsberg v. United States, 757 F.2d 971, 981-82 (9th Cir.1985) (finding that "it would be plainly unreasonable to rulethat the arresting officers . . . must take issue with theconsidered judgment of an assistant United States Attorney andthe federal magistrate"); Lavicky v. Burnett, 758 F.2d 468, 476(10th Cir. 1985) ("If the sheriffs duty is unclear, it should bea defense that he relied upon the advice of the prosecutingattorney's office."). Though Davis did not tell ADA Mitchellabout Mr. Miller's claims that the fine had been paid and that hehad the canceled check, Davis had not seen the check or any otherdocument confirming Ms. Miller's claims of innocence when hespoke to Mitchell.

The First Circuit's opinion in Torres Ramirez v. BermudezGarcia, 898 F.2d 224 (1st Cir. 1990), cited by Plaintiffs, can bedistinguished on its facts. In Torres Ramirez, the First Circuitheld that the district court did not err in finding that thedefendant was not entitled to qualified immunity because therewas evidence that the defendant processed an arrest warrant thathe knew or should have known had been vacated. See TorresRamirez, 898 F.2d at 228. Here, Davis had no reason to know thatthe warrant should have been recalled, nor had he reason to knowhow it was to be executed.

The Supreme Court has held that qualified immunity is designedto protect "all but the plainly incompetent or those whoknowingly violate the law" from liability for money damages incivil rights actions. Hunter v. Bryant, 502 U.S. 224, 229, 112S.Ct. 534, 116 L.Ed.2d 589 (1991). On the record in this case, noreasonable jury could find that Davis knowingly violated the lawwhen he arrested Ms. Miller nor could it characterize his actionsas incompetent under the circumstances. The Court thereforegrants Davis's Motion for Summary Judgment as to Count III.8

b. Rockport

A municipality may incur liability under 42 U.S.C. § 1983when its official policies or customs cause a constitutionaldeprivation. See Comfort v. Town of Pittsfield, 924 F. Supp. 1219,1233 (D.Me. 1996). To prevail on a municipal liabilityclaim, a plaintiff must show (1) a municipal custom or policy,and (2) that this custom or policy was "the cause of and themoving force behind the deprivation of constitutional rights."Bordanaro v. McLeod, 871 F.2d 1151, 1156 (1st Cir. 1989). "[T]heinadequacy of police training may serve as the basis for §1983 liability" against a municipality but "only where thefailure to train amounts to deliberate indifference to the rightsof persons with whom the police come in contact." City of Cantonv. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989).

Assuming for the sake of argument that Davis's arrest of Ms.Miller constituted a violation of the Fourth Amendment,Plaintiffs have presented no evidence whatsoever that Rockportpromulgated any policy or tolerated any custom that encouraged orcondoned unconstitutional arrests of this type by its policeofficers. There also is no evidence that such any such custom orpolicy, as opposed to the individual judgment exercised by Davis,was the moving force behind the assumed constitutionaldeprivation. Likewise, beyond the bare fact that the arrestoccurred, there is no evidence that Davis's training with respectto the execution of warrants was inadequate or resulted in thearrest of Ms. Miller. See Bordanaro v. McLeod, 871 F.2d 1151,1159-60 (1st Cir. 1989) (upholding jury finding that citywas liable for policy regarding training and supervision ofpolice officers because "jury was not asked to infer theexistence of this policy based solely on [the particular incidentgiving rise to the suit]").

Rockport's Motion for Summary Judgment is granted as to CountII.

2. Liability of Lamoreau, Jane Doe, and Kennebec County

It is undisputed that an employee of the Kennebec CountySuperior Court failed to recall the arrest warrant for Ms. Millerafter she paid her fine and that Kennebec County dispatchers aswell as ADA Mitchell conferred with Davis as to the properexecution of the arrest warrant. There is no evidence, however,that any Kennebec County employee, including Jane Doe,9affected a Fourth Amendmentseizure of Ms. Miller. Because no employee of Kennebec Countyinflicted a constitutional injury on Ms. Miller, Plaintiffs'claims of supervisory and municipal liability against KennebecCounty and its employees pursuant to section 1983 claim mustfail. See City of Los Angeles v. Heller, 475 U.S. 796, 799, 106S.Ct. 1571, 89 L.Ed.2d 806 (1986) (holding that municipalitycannot be held liable under Fourth Amendment if there is nounderlying constitutional violation by individual officer); Evansv. Avery, 100 F.3d 1033, 1039-40 (1st Cir. 1996); Natalv. City of New Bedford, 37 F. Supp.2d 74, 75 (D.Mass. 1999)("If . . . this Court grants [police officer's] summary judgmentmotion on the issue of liability rather than qualified immunity,[plaintiffs] claims against the City and [the mayor and the chiefof police] are moot.").

The Court grants summary judgment in favor of Lamoreau and JaneDoe as to Count II and in favor of Kennebec County as to CountIII.

3. Liability of Fuller, Knox County, and Davey

Plaintiffs allege that Ms. Miller's Fourth Amendment rightswere violated when she was forced to endure multiple stripsearches and body cavity searches during her three day stay atthe Knox County Jail. Defendants deny this allegation and argue,in the alternative, that if the searches did occur, they wereconstitutionally sound.

The First Circuit and other courts have recognized that stripsearches and visual body cavity searches "constitute an extremeintrusion upon personal privacy as well as an offense to thedignity of the individual." Wood v. Clemons, 89 F.3d 922, 928(1st Cir. 1996) (referring to strip searches); Swain v. Spinney,117 F.3d 1, 6 (1st Cir. 1997) (discussing strip searches andvisual body cavity searches). For this reason, the FourthAmendment requires that "strip and visual body cavity searchesmust be justified by at least a reasonable suspicion that thearrestee is concealing contraband or weapons." Swain, 117 F.3d at7. In the present case, there is ample evidence from which a jurycould conclude that the strip and body cavity searches to whichMs. Miller was subject while in the custody of the Knox Countyjail were not supported by the requisite level of suspicion. Mostsignificant is the fact that the nature of the offense for whichMs. Miller was detained — failure to pay a fine —gave jail personnel absolutely no grounds to suspect that shepossessed contraband or weapons. The issue here, then, is notwhether the searches violated Ms. Miller's constitutional rights,but whether any of the defendants named in the Complaint can beheld responsible for the violation.10 The Court finds thatthey cannot.

a. Fuller

In his deposition, Fuller acknowledges that he was working as acorrections officer at the Knox County Jail when Ms. Miller wasbrought there on April 13, 1996. There is no evidence, however,that Fuller was personally involved in the strip search or visualbody cavity search of Ms. Miller on that day at any other timeduring her detention. There also is no allegation that Fullerparticipated in the searches in any type of supervisory capacity.Thus, section 1983 provides no basis upon which to find Fullerliable for the deprivation of Ms. Miller's constitutional rights.The Courtgrants summary judgment in favor of Fuller on Count W.

b. Knox County

As set forth above in Part III.A.1.b, a municipality is subjectto liability under 42 U.S.C. § 1983 when its policies orcustoms cause a constitutional deprivation. To the extent thatPlaintiffs' claim against Knox County is based on the depositiontestimony of Fuller that the Knox County Jail had a policy ofstrip searching anyone who could not make bail, the Court findsthat this policy (if it existed) is not attributable to KnoxCounty.

Liability for an unconstitutional policy or custom may beattributed to a municipality only if it is "so well settled andwidespread that the policymaking officials of the municipalitycan be said to have either actual or constructive knowledge of ityet did nothing to end the practice." Bordanaro v. McLeod,871 F.2d 1151, 1156 (1st Cir. 1989). Even assuming that Davey couldbe classified as a policymaker for these purposes, there is noevidence that he had actual knowledge that strip and body cavitysearches were being conducted in contravention of Knox County'swritten policy and pursuant to the unwritten custom to whichFuller alludes. In addition, Plaintiffs have produced no evidenceof similar searches from which a jury could infer that "`thepractices have been so widespread or flagrant that in the properexercise of [his] official responsibilities [Davey] should haveknown of them.'" Id. (reciting standard for constructiveknowledge) (quoting Spell v. McDaniel, 824 F.2d 1380, 1387 (4thCir. 1987)); see also Altman v. Kelly, 36 F. Supp.2d 433, 435(D.Mass. 1999) ("The law is exceedingly clear that such a policyor custom cannot be established on the basis of a single eventalone.") (citing Mahan v. Plymouth County House of Corrections,64 F.3d 14, 16-17 (1st Cir. 1995)).

The Court therefore grants summary judgment in favor of KnoxCounty as to Count II.

c. Davey

Davey was the Sheriff of Knox County during the period relevantto Plaintiffs' claims. As supervisor of the Knox County Jail,Davey is potentially liable for constitutional violationsperpetrated on pre-trial detainees such as Ms. Miller. Todemonstrate a supervisor's liability under Section 1983 for theconstitutional violation of a subordinate, a plaintiff must showthat (i) "the supervisor's conduct or inaction amounts to eitherdeliberate, 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 (D.Me. 1996) (citingGutierrez-Rodriguez v. Cartagena, 882 F.2d 553, 562 (1st Cir.1989)).

In this case, Plaintiffs rely on the theory that employees werenot adequately trained. Specifically they state, "although KnoxCounty has written policies with respect to strip searches in thejail, apparently staff was given no practical training withrespect to the application of those policies since they were notfollowed in this case."11 (Pls.'s Resp. Defs.'s Mot.Summ. J. at 16.) Such an inference is entirely unwarranted. SeeColon v. Rivera, 846 F. Supp. 156, 162 (D.P.R. 1993) (finding nosupervisory liability for officers' use of force where there wasno evidence of any prior civilian complaints against officers norany other evidence that officers were prone to misconduct).Plaintiffs not only have failed to adduce direct evidenceconcerning the training of the particular employee or employeeswho performed the searches at issue, they have failed to putforth evidence tending to show a deficiency in the training ofany Knox County Jail employee. Without such evidence, areasonable jury could not possibly conclude that there was acausal link between the acts or omissions of Davey and theconstitutional violations.

The Court grants summary judgment in favor of Davey as to Count111.12

B. Tort Claims

Plaintiffs have asserted claims against one or more Defendantsfor negligence, negligent and intentional infliction of emotionaldistress, and loss of consortium. In light of the fact that theCourt has granted summary judgment in favor of Defendants onPlaintiffs' constitutional claims, the Court declines to exerciseits supplemental jurisdiction over these remaining state lawclaims. See 28 U.S.C. § 1367 (c)(3); see also Mercado-Garciav. Ponce Federal Bank, 979 F.2d 890, 896 (1st Cir. 1992) ("Oncethe court dismissed some of the federal claims and resolved theothers before trial by summary judgment, it had the discretionalso to dismiss the pendent state claims."); Martinez v. Colon,54 F.3d 980, 990 (1st Cir. 1995) ("once the court determined sofar in advance of trial that no legitimate federal questionexisted, the jurisdictional basis for plaintiffs pendent claimsunder Puerto Rico law evaporated"). Plaintiffs may pursue theseclaims in state court.

IV. CONCLUSION

For the reasons stated above, Defendant's Motions for SummaryJudgment are GRANTED as to Counts II and III. The Court declinesto exercise its jurisdiction over the remaining state claims.

SO ORDERED.

1. Plaintiffs' seven-count Complaint is not a model pleading.As far as the Court can determine, it asserts the followingclaims: (1) negligence on the part of Davis, Lamoreau, Fuller,and Jane Doe (Count 1); (2) municipal liability on the part ofKennebec County, Knox County, and the Town of Rockport pursuantto 42 U.S.C. § 1983 (Count II); (3) violations by allDefendants of the Fourth, Fifth, Eighth, and FourteenthAmendments of the United States Constitution pursuant to42 U.S.C. § 1983 (Count III); (4) intentional infliction ofemotional distress by all Defendants (Count IV); (5) negligentinfliction of emotional distress by all Defendants (Count V); (6)loss of consortium (Count VI); and (7) a violation by allDefendants of the Maine Civil Rights Act, Me.Rev.Stat. Ann. title5, § 4681 (Count VII).

The Court notes in passing that while the Plaintiffs' Complaintrefers to the "City of Rockport," Rockport is apparently a town.(Davis & Rockport Mot; Summ. J. Ex. G.)

2. In 1988, Ms. Miller was convicted of operating under theinfluence and was ordered to pay a fine of $350.00 within 90 daysof the date of her sentencing. As of May 18, 1994, Ms. Miller hadfailed to pay some $235 of that fine. On that date, KennebecCounty Superior Court issued a Motion and Order to Appear, a copyof which was sent to Ms. Miller by regular mail. Ms. Millerclaims that she never received this order and that it was returnedto the Kennebec County Superior Court and is currently in herfile. In any event, Ms. Miller failed to appear at the June 1994hearing as directed by the Order and a warrant for her arrest wasissued on September 13, 1994.

On March 24, 1995, the Kennebec County Superior Court issued asecond Motion and Order to Appear ordering Ms. Miller to appearin court on April 25, 1995. Ms. Miller paid the outstandingbalance of the fine on April 20, 1995. The Kennebec CountySuperior Clerk's Office, however, failed to recall the warrant.Thus, as of April 13, 1996, there existed a facially validwarrant for Ms. Miller's arrest.

Nancy Desjardins, Clerk of the Kennebec County Superior Court,was named as a defendant in this case. By order dated June 22,1998, the Court granted Desjardins unopposed Motion for SummaryJudgment.

3. The words "this warrant to be executed by bringingdefendant immediately before a sitting judge" do, in fact, appearin capital letters and bold type across the top of the warrant.The body of the warrant directs law enforcement to "arrest saiddefendant and bring her before the court, forthwith at KennebecCounty, so that s/he may show cause why s/he should not besentenced to be imprisoned for nonpayment." The bottom of thewarrant contains the following notation with respect to bail:"$235 cash only, (defendant to contact court.)" (Statement ofMaterial Facts in Support of Mot. Summ. J. by Knox and KennebecCounty Defs. Ex. A-2.)

4. Plaintiff claims that Tassarini told Davis exactly whatHatch told her, that is, that the warrant could be executed onlyduring the day on Monday through Friday. The transcript of theconversation between Tassarini and Davis reveals, however, thatTassarini relayed to Davis only that "according to the paperworkat Kennebec, as soon as that paperwork is served the subjectneeds to be brought before a Judge immediately." (Pls.' Resp. Ex.C at call 1.)

5. Kennebec County Sheriff Bryan T. Lamoreau ("Lamoreau") wasthe sheriff of Kennebec County at all times relevant to theseevents. Lamoreau has at least some responsibilities with respectto the training of dispatchers. There are no training manuals forKennebec County dispatchers concerning the execution ofwarrants.

6. Shortly before or after his conversation with Davis, ADAMitchell told a Kennebec County dispatcher that he believed thephrase "he brought immediately before a judge" printed on thewarrant meant "immediately within a reasonable time period."

7. Plaintiffs cite Burns v. Reed, 500 U.S. 478, 111 S.Ct.1934, 114 L.Ed.2d 547 (1991) to support the proposition thatpolice misconduct is not immunized from liability even when it isbased on erroneous legal advice. The issue in Burns, however,was whether a prosecutor was entitled to absolute or qualifiedimmunity from liability for erroneous advice he gave police.See Burns, 500 U.S. at 496, 111 S.Ct. 1934.

8. The Court also grants summary judgment in favor of Davis onCount I to the extent that it states a Fourth Amendment claim forthe use of excessive force since Ms. Miller herself admits thatshe was not so much as handcuffed during the arrest.

Similarly, Plaintiffs have not provided evidence that Davis hadthe power or the responsibility to arrange bail for Ms. Miller,nor have they explained how a denial of bail might constitute aFourth Amendment violation.

9. The Court also has no personal jurisdiction over Jane Doeas Plaintiffs have not made any progress in locating or servingher in the 16 months since this suit was filed. See Figueroa v.Rivera, 147 F.3d 77, 82-83 (1st Cir. 1998) ("underFed.R.Civ.P. 4(m), a district court may dismiss a complaintwithout prejudice as to a particular defendant if the plaintifffails to serve that defendant within 120 days after filing thecomplaint"); Glaros v. Perse, 628 F.2d 679, 685 (1st Cir. 1980)(holding that district court prepared to act on dispositivemotions is not "obliged to wait indefinitely for [plaintiff] totake steps to identify and serve `unknown' defendants").

10. Though the deadline for completion of discovery in thiscase was April 20, 1999, Plaintiffs have failed to present anyevidence as to the identity of the person or persons whoconducted the strip and body cavity searches of Ms. Miller. Forpurposes of deciding these motions, however, the Court is willingto infer that whoever conducted the searches was an unidentifiedKnox County employee, but the Court cannot impose liability for aclear violation of constitutional rights when there is noevidence presented us as to who violated those rights.

11. At least insofar as they were applicable to Ms. Miller,the Court finds constitutional Knox County's policy on strip andbody cavity searches. The Knox County Policy and Procedure Manualprovides in relevant part:

3. Strip searches will NOT be conducted at the time of arrest or admission on pretrial inmates charged with class D, E, or other misdemeanor offense unless the officer has REASONABLE SUSPICION to believe that an inmate is concealing contraband and is about to come in contact with other inmates of the facility.

4. BODY CAVITY SEARCHES, other than searches of the mouth, shall be conducted in compliance with the following rules:

a. ONLY when authorized by the Jail Administrator when there is PROBABLE CAUSE to believe an inmate is concealing inside a body [sic] cavity contraband or evidence of a crime; and

b. Conducted pursuant to a warrant issued upon probable cause. The warrant may be dispensed with, however, in cases of consent (in writing or witnessed by two officers), or exigent circumstances;

(Pls.'s Statement of Material Facts Ex. D.)

12. Since Plaintiffs have articulated no legal theorywhatsoever as to how the failure of Knox County to release Ms.Miller on bail violated her Fourth Amendment rights, the Courtdeclines to speculate on this issue.

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