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McBride v. City of Westbrook

United States District Court, D. Maine

September 4, 2015

KEVIN McBRIDE, Plaintiff,
v.
CITY OF WESTBROOK, Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

D. BROCK HORNBY, District Judge.

This case challenges the constitutionality of Westbrook Police Department procedures in requiring a residential tenant at will-who had not been named in a Forcible Entry and Detainer ("FED")[1] Action or served with a writ of possession-to vacate his apartment. I previously granted summary judgment in favor of the individual police officers because I concluded that they were entitled to qualified immunity against suit.[2] I also granted summary judgment against a co-tenant who had been named in an FED action and served with a writ of possession.[3] I denied the City of Westbrook's motion for summary judgment against the remaining plaintiff, Kevin McBride.[4]

The remainder of the case-McBride v. City of Westbrook-proceeded to jury trial on the issue whether McBride actually was a tenant at will. The jury concluded that he was.[5] The parties agreed that I should resolve all remaining issues in the case[6] and, on August 4, 2015, I conducted a bench trial. I conclude that although the police treatment of McBride produced dire consequences, the City of Westbrook has no federal liability under 42 U.S.C. § 1983 because McBride has failed to show that the police officers acted pursuant to Westbrook custom or policy.

The following are my findings of fact and conclusions of law under Fed.R.Civ.P. 52.

FINDINGS OF FACT[7]

1. The jury in this case concluded that on July 9, 2013, the plaintiff Kevin McBride was a tenant at will at 277 Main Street, Apartment 2, Westbrook, Maine.[8] Jury Verdict Form, No. 2:13-cv-272-DBH (June 22, 2015) (ECF No. 111). There was no signed written lease. Testimony of A. LeClerc, Jury Trial (June 22, 2015) (landlord provided a written lease, but it was never executed).

2. The owners and landlords for the building were Amie and Marc LeClerc. Id .; Testimony of A. LeClerc, Bench Trial (Aug. 4, 2015).

3. McBride shared the apartment with Anne Blake, his domestic partner of over fifteen years. Testimony of K. McBride, Bench Trial (Aug. 4, 2015).

4. Blake and McBride moved there because Blake's daughter and grandchildren, for whom Blake babysat, lived in a separate apartment in the same building. Testimony of A. Blake, Jury Trial (June 22, 2015).

5. The agreed-upon rent was $1, 000 monthly, which did not include the cost of heat or utilities. Testimony of K. McBride, Bench Trial (Aug. 4, 2015).

6. By mid-2013, the rent arrearage on Apartment 2 was $1600. Judgment Forcible Entry and Detainer (Pl.'s Ex. 3).

7. The landlords brought a successful FED lawsuit against Blake to evict her for nonpayment of rent. Id .; Complaint for Forcible Entry and Detainer (Pl.'s Ex. 2). They secured a Writ of Possession against her (Pl.'s Ex. 4), and caused it to be served upon her on July 5, 2013. Id . The landlords did not name McBride in the FED lawsuit, Complaint for Forcible Entry and Detainer (Pl.'s Ex. 2), or the Writ of Possession (Pl.'s Ex. 4). Although the Maine FED statute provides that "[w]hen there are multiple occupants of an apartment or residence, the process of forcible entry and detainer is effective against all occupants if the plaintiff names as parties all other occupants ' together with all adult individuals whose names appear on the lease or rental agreement for the premises or whose tenancy the plaintiff has acknowledged by acceptance of rent or otherwise, " 14 M.R.S.A. § 6001 (emphasis added), the LeClercs failed to name "all other occupants" in their FED lawsuit, and the writ of possession named only Blake. Complaint for Forcible Entry and Detainer (Pl.'s Ex. 2); Writ of Possession (Pl.'s Ex. 4).

8. McBride knew at the time about the FED lawsuit and Writ of Possession against Blake. Testimony of K. McBride, Bench Trial (Aug. 4, 2015).

9. In 2013, Captain Thomas Roth was second-in-command of the Westbrook Police Department. Testimony of T. Roth, Bench Trial (Aug. 4, 2015). It was Roth's role to direct other officers and ensure that they were trained. Id.

10. Westbrook's police chief was the ultimate decisionmaker on matters of policy for the department. Id.

11. In the spring of 2013, Amie LeClerc contacted Captain Roth about a problem she was having with a tenant. Testimony of T. Roth, Bench Trial (Aug. 4, 2015). Roth told her that she would have to go through a court process before the Westbrook police could assist her. Id.

12. On July 9, 2013, LeClerc brought to Captain Roth the civil eviction papers (the FED judgment and the writ of possession) she had obtained against Blake for 277 Main Street, Testimony of T. Roth, Bench Trial (Aug. 4, 2015), the documents that named only Anne Blake and did not refer to "all Other Occupants." Judgment Forcible Entry and Detainer (Pl.'s Ex. 3); Writ of Possession (Pl.'s Ex. 4). LeClerc specifically requested a no trespass notice, by name, against Anne Blake. Testimony of A. LeClerc, Bench Trial (Aug. 4, 2015).

13. LeClerc's goal in contacting the City of Westbrook Police Department was that they "execute the writ of possession and give [the LeClercs] back possession of the apartment." Testimony of A. LeClerc, Bench Trial (Aug. 4, 2015). LeClerc told Captain Roth that she had "reason to believe" that, in addition to Blake, there "may be at least two other people in the apartment." Testimony of A. LeClerc, Bench Trial (Aug. 4, 2015); see also Testimony of T. Roth, Jury Trial (June 22, 2015). LeClerc had no discussion with Captain Roth about serving trespass notices on anyone other than Blake. Testimony of A. LeClerc, Bench Trial (Aug. 4, 2015). But she "hoped that [she] would gain possession of [her] apartment again so [she] could get in there and clean it and rent it to someone who could pay." Id.

14. The Police Department had official trespass notice forms[9] bearing the City's name that were considered part of an officer's "standard equipment, " carried in the trunk of a cruiser and maintained in the records office to be available for use. Testimony of T. Roth, Bench Trial (Aug. 4, 2015). Aside from the criminal trespass notice forms themselves, the Westbrook Police Department had nothing in writing about issuance and service of criminal trespass notices.[10] Testimony of T. Roth, Bench Trial (Aug. 4, 2015). Captain Roth (second in command), a sergeant, and a patrol officer all testified consistently to that effect. Id .; Testimony of T. Morrell, Bench Trial (Aug. 4, 2015); Testimony of M. May, Bench Trial (Aug. 4, 2015). The forms were used most often for retail establishments or public spaces like parks, but they were occasionally used for residential situations. Testimony of T. Roth, Bench Trial (Aug. 4, 2015). Other municipalities have similar forms. Id.

15. Westbrook police officers believed that having police serve official trespass notice forms served two useful purposes: documenting that a person had received notice in the proper wording that he or she was no longer welcome at a particular location, Testimony of T. Morrell, Bench Trial (Aug. 4, 2015), and having a police presence when the property owner was changing the locks or regaining possession, often a "contentious" situation. Testimony of T. Roth, Bench Trial (Aug. 4, 2015).

16. The Westbrook Police Department's policy was not to evict tenants. Testimony of T. Roth, Bench Trial (Aug. 4, 2015); Testimony of T. Morrell, Bench Trial (Aug. 4, 2015). Instead, the police department required that property owners demonstrate proper documentation that they had previously engaged successfully in a civil eviction process. Testimony of T. Roth, Bench Trial (Aug. 4, 2015).

17. The Westbrook Police Department had no procedure for a person to appeal or seek rescission of a trespass notice that had been served upon him or her. Testimony of T. Roth, Bench Trial (Aug. 4, 2015). (In contrast, the City of Portland's notice refers to "Appeals Information" and gives an official, the Neighborhood Prosecutor of the Portland Police Department, and a phone number to call. (Pl.'s Ex. 16).)

18. Captain Roth recruited Sergeant Timothy Morrell to assist in the LeClerc request, telling him that LeClerc wanted "assistance in standing by and trespassing anyone who was there while they had the locks changed." Testimony of T. Roth, Bench Trial (Aug. 4, 2015). Morrell in turn recruited ...


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