United States District Court, D. Maine
Represented By Richard Hopkins, Pro Se James Hopkins, Pro Se 105 Damon Ridge Road Charlotte, ME 04666
Represented By John J. Wall, III, Monaghan Leahy, LLP, P.O. Box 7046, Portland, ME 04112-7046, (207) 774-3906.
DECISION AND ORDER ON CROSS-MOTIONS FOR SUMMARY JUDGMENT AND DEFENDANT'S MOTION TO STRIKE
D. BROCK HORNBY, District Judge.
Calais police officer David Claroni has moved for partial summary judgment on the claims of two pro se plaintiffs, Richard and James Hopkins (the Hopkins Brothers, as they call themselves). They, in turn, have moved for summary judgment on some of their claims. All the claims arise out of Officer Claroni's traffic stop of the Hopkins Brothers and their vehicle (Richard Hopkins was driving; James Hopkins was the passenger) in Calais, Maine, at around 6 p.m. on November 14, 2008. I GRANT IN PART AND DENY IN PART the defendant's motion for partial summary judgment ("Def.'s Mot.") (ECF No. 66). In doing so, I view the facts in the light most favorable to the Hopkins Brothers as the non-moving parties, and I also consider the 2010 Advisory Committee Note to Rule 56(e) that "[m]any courts take extra care with pro se litigants, advising them of the need to respond and the risk of losing by summary judgment if an adequate response is not filed. And the court may seek to reassure itself by some examination of the record before granting summary judgment against a pro se litigant." In that light, I DENY the defendant's motion to strike the plaintiffs' response in opposition to the motion for partial summary judgment (ECF No. 76). I also DENY the plaintiffs' motion for summary judgment ("Pls.' Mot.") (ECF No. 80).
Based upon a telephone call from off-duty sheriff's deputy Thomas Chambers, whom Officer Claroni knew, Claroni pulled over the Hopkins vehicle for running a stop sign. The Hopkins Brothers both denied the traffic infraction. The succeeding interchange between Officer Claroni and the Hopkins Brothers became increasingly testy; Richard Hopkins refused to wind his window down sufficiently to the officer's satisfaction; Claroni claimed to smell alcohol coming from the vehicle; he wanted to ascertain whether the driver had been drinking (which the driver denied); the passenger asked for the officer's name and badge number and challenged Claroni's right to obtain the passenger's identification; at some point, Claroni reached through the driver-side window, which led to Richard Hopkins rolling the window up completely; the occupants of the vehicle took the gear shift out of park and revved the engine; Claroni threatened to break the driver's window with his baton if it was not wound down. Eventually, Claroni had Richard Hopkins exit the vehicle.
Richard Hopkins was escorted to Claroni's cruiser by Deputy Chambers, whom Claroni had earlier called for back-up. Claroni asked Duane McLellan, a firefighter whom he knew (McLellan had come from his home across the street to observe what was going on) to watch Richard Hopkins while Claroni and Chambers approached the Hopkins vehicle. Me. Superior Ct. (Washington Cnty.) Trial Proceedings Tr., Vol. II Excerpts ("Trial Tr."), pp. 174-80, Page ID #402-03 (ECF No. 70-2). Claroni then got into the Hopkins vehicle on the driver's side- he says to remove the keys, but the Hopkins Brothers say to assault passenger James Hopkins-and a physical altercation ensued. In the truck during the altercation, Claroni saw a shotgun pointing toward the floor (it turned out to be unloaded and belonged to Richard, who had been hunting that day). At some point, Claroni sprayed mace on James Hopkins and James Hopkins exited the vehicle on his own, by force, or by some combination of the two. During the altercation in the vehicle, Richard Hopkins was yelling at Claroni not to injure his brother, who has had six previous skull fractures. Trial Tr., p. 21, Page ID #358. McLellan, thinking Richard Hopkins was getting agitated to the point that he might intervene in the Claroni/James Hopkins altercation, moved to grab Richard Hopkins, and in the process tripped over his own untied shoelaces. As a result, both he and Hopkins fell to the ground. Other law enforcement personnel arrived on the scene at some point.
Claroni arrested both brothers, Richard for disorderly conduct and James for assault. Law enforcement seized the shotgun and vehicle. A blood alcohol test on Richard at the jail showed no alcohol. Richard was released on bail and regained possession of his gun and vehicle that same evening. Law enforcement took James to the hospital for treatment before he was returned to the jail. Richard bailed James the next morning.
On January 6, 2009, with Richard Hopkins present, a District Court judge in Calais made a finding of "no complaint" on the disorderly conduct charge, thus ending the case against Richard. See State of Maine v. Richard Hopkins, No. CALDC-CR-2008-00492 (Calais, Maine). James was tried for assault and, after a mistrial, entered a nolo contendere plea. See State of Maine v. James Hopkins, No. MACSC-CR-2009-00006 (Machias, Maine).
The Hopkins Brothers filed their pro se complaint in this court suing the Calais Police Department and a number of officers and individuals, asserting claims under 42 U.S.C. § 1983 for violation of their constitutional rights. Subsequently, they dismissed all defendants but Officer Claroni and Duane McLellan. I eventually granted McLellan's motion to dismiss because he was never properly served with process. Order Granting Mot. to Dismiss (ECF No. 31). Thus, the case now is proceeding against only Officer Claroni, and the only pertinent claims remaining in the complaint are seven counts against Claroni on behalf of Richard Hopkins and seven counts on behalf of James Hopkins. Claroni has moved for summary judgment on all but James Hopkins' excessive force claim. The Hopkins Brothers have responded and claimed summary judgment in return.
(1) False Arrest and First Amendment Claims (Counts 1 & 4-Both Plaintiffs)
There are genuine issues of material fact on whether there was probable cause for Officer Claroni to arrest Richard Hopkins for disorderly conduct, and whether qualified immunity applies. Officer Claroni says that he arrested Richard Hopkins "for disorderly conduct based upon his refusal to comply with Officer ...