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Shuper v. Austin

United States District Court, D. Maine

December 15, 2014

DAN AUSTIN, Defendant


For DAN AUSTIN, Falmouth Police Department, Defendant: EDWARD R. BENJAMIN, JR., THOMPSON & BOWIE, LLP, PORTLAND, ME.



Feeling anxious, on February 27, 2013, Alla Iosifovna Shuper called 911 because she had received a notice from the Internal Revenue Service saying that she may have been the victim of identity theft. Ms. Shuper speaks and writes English but it is not her native language, and she also suffers from mental and physical health problems. When Officer Dan Austin of the Falmouth Police Department arrived at her home in response to her 911 call, he attempted to summon her for misuse of the 911 system and when she refused to sign the summons, he arrested her.

Ms. Shuper, acting pro se, brought a civil action against Officer Austin and perhaps against the Town and its Police Department under various legal theories. Addressing Officer Austin's motion to dismiss and performing its own § 1915 review of claims against the Town of Falmouth and the Falmouth Police Department, the Court concludes that her 42 U.S.C. § 1983 claim against Officer Austin for warrantless arrest and for excessive force survives dismissal, that her § 1983 equal protection claim against Officer Austin must be dismissed, that her pleadings do not state a § 1983 municipal liability claim against the Town or its Police Department, and that her Americans with Disabilities Act (ADA) and Maine Human Rights Act (MHRA) claims survive summary dismissal but only as claims against the Town of Falmouth Police Department restricted to Officer Austin's arrest and detention of Ms. Shuper.


A. Legal Standard

When evaluating a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted, a court must determine " whether, construing the well-pleaded facts of the complaint in the light most favorable to the plaintiffs, the complaint states a claim for which relief can be granted." Ocasio--Herná ndez v. Fortuño--Burset, 640 F.3d 1, 7 (1st Cir. 2011). A court need not assume the truth of conclusory allegations, and the complaint must state at least a " plausible claim for relief." Ashcroft v. Iqbal, 556 U.S. 662, 678-79, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). However, " [n]on-conclusory factual allegations in the complaint must ... be treated as true, even if seemingly incredible." Ocasio--Herná ndez, 640 F.3d at 12. A court may not " attempt to forecast a plaintiff's likelihood of success on the merits." Id. at 13.

Furthermore, courts should be " solicitous of the obstacles that pro se litigants face, and ... endeavor, within reasonable limits, to guard against the loss of pro se claims due to technical defects." Dutil v. Murphy, 550 F.3d 154, 158-59 (1st Cir. 2008). In deciding a Rule 12(b)(6) motion, a court may consider any documents attached to the complaint as well as any other documents " integral to or explicitly relied upon in the complaint, even though not attached to the complaint." Trans-- Spec Truck Serv., Inc. v. Caterpillar Inc., 524 F.3d 315, 321 (1st Cir. 2008) (quoting Clorox Co. P.R. v. Proctor & Gamble Commercial Co., 228 F.3d 24, 32 (1st Cir. 2000)).

B. Factual Background[1]

Ms. Shuper alleges that she suffers from a mental health impairment, lives alone with her service dog, and suffers from bouts of angina. Compl . at 4; id. Attach. 8, Memo from Yudi Shuper at 2 (ECF No. 1). She also has a " pretty bad" health condition that " requires a close medical attention because of the very serious side effects of the medications I have been taking." Second Am. Compl . at 8 (ECF No. 15). Although Ms. Shuper speaks and writes English, she apparently requires interpretive services. Id. at 1. Ms. Shuper's mental health symptoms and her language skills have complicated her encounters with law enforcement officers and other members of the community. Id. at 1-16.

On February 27, 2013, Ms. Shuper was suffering from a panic attack brought on by her receipt of a notice from the Internal Revenue Service that it suspected she was the victim of identity theft. Id. at 4. Ms. Shuper's anxiety made her feel unsafe and " what I had in my mind at that time is to call Public Safety." Id. Despite having difficulty understanding Ms. Shuper, the dispatcher did not call for interpretive services and did not understand whether she was requesting services of an ambulance, the Fire Department, or the Police Department. Id. She responded that she " did not feel safe and I do not know who supposed to be called in such situations." Id. The dispatcher replied that he " has a protocol and should follow it." Id. Ms. Shuper determined that the dispatcher was not going to help her. Id. at 3-4. Ms. Shuper's anxiety heightened and she " remembered only the words of the Social Worker and the Case Worker, saying that in case of Emergency call 911." Id. at 4. Ms. Shuper called 911. Id. at 4-5.

In about ten minutes, Officer Dan Austin arrived at Ms. Shuper's home. Id. at 5. Officer Austin asked what the emergency was; Ms. Shuper mentioned the IRS letter, said that she felt unsafe because of the suspected identity theft, and told the Officer that she feared someone wanted to kill her. Id. She told Officer Austin " about a huge stress I had experienced." Id. Officer Austin did not understand Ms. Shuper and did not call for interpretive services or for the services of a crisis worker. Id. at 5-6. Instead, " in about 5 minutes" Officer Austin " brought the summons" for misuse of the 911 system. Id. at 6. Ms. Shuper " knew that I did not do anything wrong and refused to sign the summons." Id. Officer Austin called for assistance and he and Officer Mazziotti handcuffed Ms. Shuper, who was in her pajamas and slippers, and " physically forced me to go outside." Id. Ms. Shuper remained in detention for approximately 18 hours. Id. She was accused of misuse of 911 and refusal to sign a summons. Id. She says she " never violated" the 911 law. Id. at 7.

Ms. Shuper subsequently obtained information concerning the number of calls she placed to 911, which she says confirm that she only called the " Falmouth 911" on February 27, 2013. Id. at 7-8. According to filings attached to her pleadings, Ms. Shuper was charged with misusing the 911 system and with refusing to sign a summons; on June 12, 2013, the District Attorney eventually " filed" these charges for a one-year period beginning June 12, 2013. Compl . Attach. 9, Docket Record at 4.

Ms. Shuper later filed three administrative complaints against Officer Austin; one with the Falmouth Police Department, another with the Cumberland County Sheriff's Office, and a third with the Maine Human Rights Commission. Second Am. Compl . at 9.

In addition to the February 27, 2013 incident, Ms. Shuper alleges what she calls " assaults" and " humiliation" related to subsequent encounters with the Falmouth Police Department. Id. at 10-11. These encounters involve being told that there was a harassment notice pertaining to calls Ms. Shuper made to the New England Poison Control Center, which information was false, id. at 11; a caution that she stop calling the Falmouth Police Department's non-emergency phone line to discuss her case or face arrest, id.; a response police made to a call placed by an employee of Shaw's Supermarket concerning Ms. Shuper, in which response a police officer made the manager apologize to her for having the police called, id. at 12; a trespass notice initiated by Staples due to an encounter Ms. Shuper had with an employee in a Staples Copy Center who declined to give her the store's " policies", id. at 13; a description of Ms. Shuper's speech as rambling, which was made in a Falmouth Police Department filing with the Maine Human Rights Commission, id. at 14-16; and, two calls to Ms. Shuper in which a dispatcher or officer reported to her that someone called and said there was a " protection order" or " cease harassment order" against her, which was not true. Id. at 16.

Based on these allegations, Ms. Shuper alleges a violation of her civil rights, citing § 1983; a violation of the Fourteenth Amendment; a violation of " ADA Chapter 126"; and a violation of Chapter 337, subchapter 5 of the Maine Human Rights Act. Id. at 17. For relief, she requests emotional and physical damages, complaining of two hospitalizations and three visits to a Crisis Stabilization Unit maintained by Crisis & Counseling Centers of Maine. Id. at 17-18.

C. The Parties' Positions

1. Daniel Austin's Motion

On October 16, 2014, Daniel Austin moved to dismiss the Second Amended Complaint for failure to state a claim pursuant to Federal Rules of Civil Procedure 8 and 12(b)(6). Def. Daniel Austin's Mot. to Dismiss for Failure to State a Claim (ECF No. 38) ( Def.'s Mot .). Officer Austin points out that many of the allegations in the Second Amended Complaint are not directed against him. Id. at 1-3. He also disputes whether his arrest of Ms. Shuper constituted an " assault" as legally defined. Id. at 2. He maintains that Ms. Shuper failed to allege facts sufficient to conclude that she has a disability within the meaning of the ADA. Id. Officer Austin points to Ms. Shuper's Second Amended Complaint and its acknowledgement that she refused to sign the summons as conceding that " probable cause to support her arrest" existed and refuting " any right she has to bring an unlawful arrest claim under § 1983." Id. at 3. Turning to the " only portion of Plaintiff's Complaint that appears to implicate Officer Austin", namely the events leading to her arrest, Officer Austin says that he summoned Ms. Shuper for the criminal violation of misuse of the 911 system because he understood " she did not have any kind of emergency that would justify her use of the 911 emergency line." Id. at 3-4. Officer Austin then says that once she refused to sign the summons, she was committing a Class E offense in his presence and this " provided the probable cause necessary for him to lawfully arrest her." Id. at 4.

Regarding the claims underpinning the § 1983 action, citing Graham v. Connor, 490 U.S. 386, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989), Officer Austin maintains that routine arrests--like the one in this case--do not constitute a Fourth Amendment violation. Id. at 7. In fact, he writes that " [a]n arrest supported by probable cause cannot support a § 1983 claim for violation of the 4th Amendment." Id. at 8. As in his view, Ms. Shuper committed " an arrestable offense in [his] presence", her Second Amended Complaint fails to state a claim that can survive a motion to dismiss. Id. at 8.

2. Alla Iosifovna Shuper's Response

On October 16, 2014, Ms. Shuper filed a response in opposition to the motion. Opp'n to Def.'s Mot . (ECF No. 39) ( Pl.'s Opp'n ). In her opposition, Ms. Shuper maintains that she has stated a claim both under ยง 1983 and under the ADA against Officer Austin, ...

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