213 F. Supp.2d 1 (2002) | Cited 0 times | D. Maine | July 31, 2002


Before the Court is Defendant's Motion for Summary Judgment (DocketNo. 5), supported by Defendant's Statement of Material Facts (Docket No.6). Plaintiff has filed no response to the motion.

Plaintiff has filed this action under 42 U.S.C. § 1983, allegingthat "Defendant stopped Plaintiff and without consent, or probablecause, searched his person," a search that included unbucklingPlaintiff's pants and allowing them to drop. Complaint at ¶¶ 3-4. Atall times relevant to the instant case, Roger Landry was employed by theCity of Lewiston as a police officer. See Affidavit of Roger Landryattached hereto as Exhibit 1 at ¶ 1. Prior to January 20, 2000, thedate of Plaintiff's arrest, Officer Landry had graduated from the MaineCriminal Justice Academy and been certified by the State of Maine tofunction as a police officer in this state. See Exhibit 1 at ¶ 1.As part of Officer Landry's training at the Maine Criminal JusticeAcademy, he received training in proper arrest procedures, as well asconducting lawful warrantless searches. See Exhibit 1 at ¶ 1. As apolice officer employed by the City of Lewiston, Officer Landry alsoreceived in-house training regarding proper arrest procedures, as well asconducting lawful warrantless searches, and had received such trainingprior to January 20, 2000. See Exhibit 1 at ¶ 1.

On or about January 20, 2000, Officer Landry was riding as a passengerin a marked City of Lewiston police cruiser being driven by Officer GregBoucher. See Exhibit 1 at ¶ 2. While traveling on Park Street inLewiston, Officers Landry and Boucher saw a Camero approaching them atwhat Officer Landry felt was an excessive rate of speed. Id. At theintersection of Park Street and Birch Street, the vehicle swerved intothe snowbank adjacent to the road, putting the passenger tires in thesnowbank. Id. The vehicle was sliding into the intersection, seeminglyunable to stop, and it appeared to Officer Landry that the driver wastrying to use the snowbank to help stop the vehicle's forward motionbefore it slid through the stop sign and into the intersection. Id.Officer Boucher turned the cruiser around, and the officers approachedthe vehicle from the rear. See Exhibit 1 at ¶ 3.

As the officers approached the vehicle, Officer Landry saw the vehicledrive up on a curb, then down off the curb, and come to a stop. Id. Atthis point, Officer Boucher activated his blue lights and pulled to astop behind the vehicle, due to the erratic vehicle operation theofficers had observe. Id. Before the officers could get out of thecruiser, Officer Landry saw what appeared to him to be two persons exitthe passenger side of the vehicle and run into one of the apartmenthouses adjacent to where the vehicle as stopped. Id. As it wasapproximately 10:30 p.m. when this occurred, it was difficult to seewhether the passengers were male or female, or to determine whichapartment they had entered because of the darkness. Id.

The license plate on the Camero was "TEX 1," a Maine registeredvehicle. See Exhibit 1 at ¶ 4. Officer Boucher advised OfficerLandry that he had received information a few days earlier from a drugenforcement agent with the Maine Drug Enforcement Agency ("MDEA") that avehicle with this "TEX 1" plate was believed to be involved in thetrafficking of crack cocaine. Id. Because of the information from theMDEA, and the actions of the passengers in fleeing into the apartmentbuilding, Officers Boucher and Landry requested additional backup units,including a city K-9 unit. Id.

A Lewiston K-9 unit arrived at the scene, but that officer advised thathis dog was not yet certified for drug searches. Id. An AndroscogginCounty Sheriff's Office Deputy, Corporal James Jacques, was in the area,however, and his dog was certified to do searches for drugs. Id.Corporal Jacques came to the scene, and brought his dog over to where theCamero was parked. Id.

Prior to the arrival of Corporal Jacques, Officer Landry had taken thelicense and registration given him by Justin Moody, the driver of theCamero, and returned to the cruiser to run a license and registrationcheck. See Exhibit 1 at ¶ 5; see also Deposition transcript of JasonMoody at p. 20 (lines 13-25). (The original deposition transcript ofJustin Moody is part of the record. Officer Landry also needed to writea summons to Mr. Moody for failing to provide proof of insurance, as hewas unable to produce any evidence the vehicle was insured. See Exhibit1 at ¶ 4.

When Officer Landry went back to his cruiser, other officers arrived atthe scene including the Androscoggin County Sheriff with his K-9 dog.See Exhibit 2 at pp. 20 (lines 12-25) — 21 (line 12). During thetime the dog was searching Mr. Moody, Officer Landry was doing somethingelse and a different officer was involved in the search. Id. at pp. 23(line 3) — 24 (line 25). Mr. Moody believes it was a differentofficer than Officer Landry who searched him. Id. at pp. 24 (line 17)— 26 (line 18). Mr. Moody only has Officer Landry's name becausehe was the officer who took Mr. Moody's paperwork back to the cruiser andsigned the summons he received. Id. at p. 26 (lines 3-23). Whateversearching of Mr. Moody and/or his vehicle occurred, it occurred whileOfficer Landry was in the cruiser parked behind Mr. Moody's vehicleobtaining license and registration information through dispatch andwriting a summons for failing to provide proof of insurance. See Exhibit1 at ¶ 4.

Although Officer Landry was the officer who signed the summons that wasgiven to Mr. Moody, he was not involved in any search of Mr. Moody or hisvehicle. See Exhibit 1 at ¶ 4. Officer Landry never observed Mr.Moody with his pants down as he alleges occurred during a search of hisperson by some other officer on thescene. See Exhibit 1 at ¶ 4.After Officer Landry completed the paperwork in the cruiser, he returnedMr. Moody's license and registration to him, and also gave him a summonsfor failing to provide proof of insurance. See Exhibit 1 at ¶ 5; seealso Exhibit 2 at p. 26 (lines 8-23).

The charge against Mr. Moody was later dismissed by the state when heprovided evidence that the car had, in fact, been insured on January 20,2000. See Exhibit 1 at ¶ 5. Officer Landry did not arrest Mr.Moody, or use any force against him. See Exhibit 1 at ¶ 5; see alsoExhibit 2 at p. 30 (lines 1-4). Officer Landry also had no role in anyalleged search of Mr. Moody's person or his vehicle. See Exhibit 1 at¶ 5; see also Exhibit 2 at pp. 23 (line 25) — 24 (lines 1-25).Officer Landry's only role in the police contact with Mr. Moody was toobtain license and registration information, relay that information todispatch so it could be checked, and complete and deliver a summons toMr. Moody for failing to have proof of insurance in his vehicle. SeeExhibit 1 at ¶ 5. Mr. Moody concedes that his vehicle was not stoppedby the police, but that the police cruiser pulled up behind him after hehad parked the vehicle. Exhibit 2 at p. 16 (lines 11-20).

Summary Judgment Standard

Summary judgment is appropriate when the record shows "that there is nogenuine issue as to any material fact and that the moving party isentitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). Anissue is "genuine" if, based on the record evidence, a reasonable jurycould return a verdict for the nonmoving party. Anderson v. Liberty,477 U.S. 242, 248 (1986). A fact is "material" when it has thee"potential to affect the outcome of the suit under applicable law."Nereida-Gonzalez v. Tirado-Delgado, 990 F.2d 701, 703 (1st Cir. 1993).The court reviews the summary judgment record in the light most favorableto the nonmoving party. Levy v. FDIC, 7 F.3d 1054, 1056 (1st Cir.1993). The moving party must demonstrate an absence of evidencesupporting the nonmoving party's case. Celotex Corp. v. Catrett,477 U.S. 317, 325 (1986). Where this preliminary showing has been metand where the nonmoving party bears the burden of proof at trial, thenonmoving party must go beyond the pleadings to establish the existenceof an element essential to that party's case, and on which that partywill have the burden of proof at trial." Id. at 322.

By failing to file the required response within the time prescribed by the applicable local rule, the non-moving party [here, the Plaintiff], waives the right to controvert the facts asserted by the moving party in the motion for summary judgment and the supporting materials accompanying it. The court will accept as true all material facts set forth by the moving party with appropriate record support. If those facts entitle the moving party to judgment as a matter of law, summary judgment will be granted.

Jaroma, 873 F.2d at 21 (emphasis added); see also McDermott, 594 F.Supp. at 1321 (same). Nepsk, Inc. v. Town of Houlton, 283 F.3d 1 (1stCir. 2002).


The claim set forth in the Complaint is to be evaluated under thestandards of the Fourth Amendment, and Defendant Landry's conduct must beevaluated under that provision's "reasonableness" standard. DefendantLandry would also be entitled to qualified immunity if a Fourth Amendmentviolation on his part was even suggested by the uncontroverted facts inthe case. In order to defeat that immunity, Plaintiff is required todemonstrate thathis "clearly established" rights have been violated andthat "a reasonable officer situated in the same circumstances should haveunderstood that the challenged conduct violated that established right."Burns v. Loranger, 907 F.2d 233, 235-36 (1st Cir. 1990); Miller v.Kennebec County, 219 F.3d 8, 11 (D.Me. 2000).

Here, the undisputed factual record demonstrates ample basis for thereasonableness of Officer Landry's conduct in stopping Plaintiff'svehicle because of its erratic operation. Likewise, ample evidenceexists in the record to establish the reasonableness of his citing, bysummons, Plaintiff for operating an uninsured vehicle. As to the conductof the alleged search, there is absolutely no evidence in the recordwhatever to establish that, in point of fact, Officer Landry participatedin such a search. Further, no claim is pleaded, nor is any evidenceoffered to show, that Officer Landry unreasonably failed to intervene inthe conduct of other officers or that their conduct was observed by himto be inappropriate. There is no evidence in fact of any suchcircumstance in this case. Accordingly, the proof, on this record, failsto demonstrate that any search of the nature alleged was ever conductedby Officer Landry. There is no genuine issue of material fact as to hisconduct of the search, the reasonableness of his actions, or anyviolation by him of the clearly established right of Plaintiff.

Likewise, there is no evidence in the record that would be sufficientto establish any basis for assertion of liability of the City.

Accordingly, it is hereby ORDERED that the motion be, and it ishereby, GRANTED, and judgment shall enter for Defendants herein.

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