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Cousins v. Higgins

United States District Court, D. Maine

June 15, 2015



D. BROCK HORNBY, District Judge.

This federal lawsuit arises out of a December 4, 2013, fire that destroyed the plaintiffs' restaurant and home in Bass Harbor, part of Tremont Maine. If the plaintiffs' assertions of fact are true, a serious injustice occurred. But even accepting the untested assertions as true, I conclude that they do not demonstrate a federal claim, and I therefore GRANT the defendants' motion to dismiss the federal claims with prejudice. I GRANT the motion to dismiss the state law claims without prejudice to their assertion in state court. I DENY the plaintiffs' motion to amend their complaint because the amendment is futile (and I have considered the proposed amended complaint's allegations in granting the motion to dismiss). In all of this, I take as true the plaintiffs' factual assertions and view them in the light most favorable to the plaintiffs as the non-moving parties on the motion to dismiss. I also take into account that pro se complaints are to be construed "liberally." Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 75 (1st Cir. 2014); see also Guerro v. Mulhearn, 498 F.2d 1249, 1256 (1st Cir. 1974) (the court must "read the allegations of a pro se complaint liberally, and not dismiss the action unless it appears beyond doubt that the plaintiff can prove no set of facts... which would entitle him to relief.'") (quoting Haines v. Kerner, 404 U.S. 519, 521 (1972).


Robert and Judy Cousins ("the Cousins") operated a restaurant, Cap'n Nemo's, and lived in the upper floors of the building (apparently known as the "lighthouse"). On December 4, 2013, a fire began on the fifth (top) floor. Proposed Amended Compl. ¶ 71 (ECF No. 16-1) (hereafter "Proposed Compl."). The Tremont Volunteer Fire Department ("Tremont FD") responded to the blaze. Id . ¶¶ 72-82. The Cousins say that when the volunteer firefighters arrived, the fire was small enough that one more fire extinguisher would have put out the fire. Id . ¶ 75. But instead, the fire chief told the firefighters that they were not allowed to go inside, and that they would respond to the fire with a "defensive attack." Id . ¶ 76. Robert Cousins told Captain Heath Higgins[1] that "I almost have it out, I just need another extinguisher, " but Heath Higgins said, "You have to leave, it is mine, now." Id . ¶ 75. The Cousins assert that the fire chief did not direct sufficient water to the fire on their premises, but emptied an entire truckload of water on a building 25 feet away from the flames, Compl. ¶ 16 (ECF No. 1), failed to communicate on the appropriate radio channel, and directed fire departments from neighboring towns to "stand down" when they arrived to assist the Tremont firefighters with controlling the fire. Id . ¶ 18. The outcome was that the Cousins family lost their home and their restaurant to the fire.[2] Compl. at 3.

The Cousins complain that these actions were the result of "bad blood" between Tremont firefighters including Chief Higgins, on the one hand, and the Cousins family (or Cap'n Nemo's), on the other hand. The Cousins describe conflict going back to 2007 over various permits, occupancy limits, karaoke hours, parking, and purported safety violations. Compl. ¶¶ 6-11. They say that, before the fire, there were "rumors" that the Tremont Fire Department would let Cap'n Nemo's burn if the restaurant were ever to catch fire. Compl. ¶ 3.


Robert and Judy Cousins filed their pro se complaint in this Court against twenty people, many of whom were firefighters for the Tremont Volunteer Fire Department. The Cousins asserted both federal and state law claims. On the Magistrate Judge's sua sponte recommended decision under 28 U.S.C. § 1915(e)(2)(B), this Court immediately dismissed the claims against all but five of the named defendants.[3] Report and Recommended Dec. at 2 (ECF No. 6), adopted December 30, 2014 (ECF No. 8).

The remaining defendants are all Tremont firefighters: Heath Higgins, Keith Higgins, Tadd Jewett, Matthew Lindsley, and Matthew Tetreault. They have moved to dismiss the Cousins' complaint for failure to state a claim and for lack of jurisdiction. The Cousins have opposed the motion and request permission to file an amended complaint, alleging claims against the remaining defendants, the Town of Tremont, the Tremont Volunteer Fire Department, a Tremont selectman, [4] and eight additional defendants (some of them previously dismissed).[5]


Unlike most state courts, federal courts have only limited jurisdiction. They can entertain only disputes that involve a "federal question" or are between citizens of different states. Here, the plaintiffs and all the defendants are citizens of Maine. For this Court to have jurisdiction over this case, the Cousins must have sufficiently pleaded a federal question. 28 U.S.C. § 1331.


The Cousins assert federal claims under 42 U.S.C. §§ 1983, 1985, 1986, the Americans with Disabilities Act, and "RICO." I discuss each in turn.

(1) Section 1983 Claims

In order to state a claim under 42 U.S.C. § 1983, the Cousins must allege that a defendant (1) violated a right protected by the Constitution or laws of the United States; and (2) in doing so, acted under color of law. Gagliardi v. Sullivan, 513 F.3D 301, 306 (1st Cir. 2008); 42 U.S.C. § 1983. In their opposition to the defendants' motion to dismiss the section 1983 claims and in their proposed amended complaint, the Cousins identify a number of constitutional or statutory rights that they say the defendants ...

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