United States District Court, D. Maine
DECISION AND ORDER ON DEFENDANT CITY OF WESTBROOK'S MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF McBRIDE'S CLAIMS
D. BROCK HORNBY, District Judge.
After oral argument on February 9, 2015, and after considering the parties' supplemental briefs, I DENY the City of Westbrook's motion for summary judgment against the plaintiff McBride. (I previously granted the City's motion as to the plaintiff Blake, and the individual defendant law enforcement officers' motion as to both plaintiffs. See Dec. & Order on Defs.' Mot. for Summ. J. dated Nov. 19, 2014 (ECF No. 47).) This is a case that cries out for factual determinations before I make further legal rulings.
First, McBride's status as a tenant-at-will is in dispute. It appears that if he does not have that status, he will not be able to proceed further against the City, and that is the end of the case. If he does have that status and the landlords did not bring an Forcible Entry & Detainer ("FED") proceeding against him and obtain and serve a Writ of Possession, see 14 M.R.S.A. §§ 6001-05, his presence in the apartment may not have been criminal trespass under 14 M.R.S.A. § 402 and the notice that the police served upon him may have been a nullity.
Second, the Westbrook Police Department's role requires factual determination. I am left uncertain to what extent the officers merely served the notice (probably not alone enough for section 1983 liability) and to what extent they affirmatively removed McBride (calling him to the apartment from his work site, giving him 30 minutes to remove his belongings, telling him "you are being evicted, " and requesting his keys).
Third, on this record I cannot determine the scope of the Westbrook Police Department's policy or custom. I have already decided that there is a factual issue here, Decision and Order on Defendants' Motion for Summary Judgment at 9, in the sense that the summary judgment record provides enough evidence for a factfinder to conclude that Westbrook had a custom or practice of serving the criminal trespass notices upon a landlord's request (City pre-printed forms, and police officers' testimony). But whether the custom or policy is to serve the notices only on named persons or "occupants" who are listed in a Writ of Possession (at oral argument the City's lawyer argued that at most a negligent error occurred here in serving McBride), or whether the custom or policy is to take the landlord's word for who is a tenant in serving the notices, remains an open question.
Fourth, the parties have furnished me precious little information about the use of criminal trespass notices elsewhere for private residential disputes under Maine's statute, how and why Westbrook's pre-printed form was drafted as it was, how other municipalities use such notices in connection with private residential real estate, etc. That seems to me to be important contextual information for an injunctive or declaratory relief decision likely to have broad ramifications, however it comes out.
At this stage, therefore, I decline to determine whether any process is due. (The plaintiff urges that due process requires that for residential real property the City issue criminal trespass notices only when presented with a Writ of Possession naming the person to be served or naming "occupants." The City urges that Maine provides an adequate post-deprivation remedy by allowing an improperly evicted tenant to sue the landlord under 14 M.R.S.A. § 6014. In turn, the plaintiff argues that he has no remedy there. Neither party has cited me any Maine cases applying that statute in analogous circumstances. In any event, these arguments seem to implicate cases like Fuentes v. Shevin, 407 U.S. 67 (1972), cited by McBride,  and Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982), which neither party cites, as to when pre-deprivation hearings are required.)
As for Westbrook's argument that I should grant it summary judgment on McBride's associational rights claim to have Blake visit him in his apartment, I DENY the motion because I do not understand that to be McBride's claim. Instead, he is claiming that his property interests under Maine law include the right to have visitors and that it is part of the property interests taken from him without due process of ...