United States District Court, D. Maine
ORDER ON DEFENDANT MARY MAYHEW'S MOTION TO
DISMISS INDIVIDUAL CAPACITY CLAIMS
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
case arises out of an incident that took place on December 2,
2013, in which staff at Riverview Psychiatric Center
allegedly pepper sprayed, restrained, secluded, and failed to
treat a patient without good cause. The patient filed a
lawsuit against a number of state of Maine defendants in both
their official and individual capacities. Mary Mayhew, the
Commissioner of the Maine Department of Health and Human
Services, moves to dismiss all individual capacity claims
brought against her. The Court grants the motion to dismiss
with respect to the constitutional claims pursuant to 42
U.S.C. § 1983 because the Plaintiff failed to plead
sufficient facts to demonstrate that the Commissioner herself
violated the patient's rights or acted or failed to act
with deliberate indifference to them. The Court dismisses
without prejudice the motion to dismiss the negligent
supervision claim under Maine law because this aspect of the
motion has not been thoroughly briefed and the Court is not
sufficiently confident about the status of the tort in Maine
to grant or deny the motion to dismiss.
December 1, 2015, Arlene Edson filed a complaint in Kennebec
County Superior Court for the state of Maine against
Riverview Psychiatric Center (Riverview) and a number of
other state of Maine entities and individuals, including Mary
Mayhew, Commissioner of the Maine Department of Health and
Human Services (MDHHS), in her official and individual
capacities. Aff. of John J. Wall, III Attach. 3
Compl. (ECF No. 7). On February 10, 2016, Jamie
Meader, a named Defendant, removed the case to this Court.
Notice of Removal (ECF No. 1). On June 22, 2016,
Commissioner Mayhew moved to dismiss the Complaint insofar as
it made allegations against her in her individual capacity.
Def. Mary Mayhew's Mot. to Dismiss Individual
Capacity Claims (ECF No. 65) (Def.'s Mot.).
On July 12, 2016, Ms. Edson filed her opposition to the
motion to dismiss. Pl.'s Opp'n to Def. Mary
Mayhew's Mot. to Dismiss Individual Capacity Claims
(ECF No. 71) (Pl.'s Opp'n). On July 26,
2016, Commissioner Mayhew filed a reply. Def. Mary
Mayhew's Reply in Supp. of Mot. to Dismiss Individual
Capacity Claims (ECF No. 73) (Def.'s
THE ALLEGATIONS IN THE SECOND AMENDED
Edson has been a patient at Riverview since 2011. Second
Am. Compl. ¶ 1. She has profoundly serious
psychiatric illnesses and was involuntarily committed to
Riverview after being found Not Criminally Responsible on
arson and assault charges. Id. ¶¶ 1, 19.
On December 2, 2013, Ms. Edson was pepper sprayed by
Riverview employees, restrained in five-point restraints, and
kept isolated for hours before anyone responded to her pleas
for help. Id. ¶ 1. During all times relevant to
this civil action, including December 2, 2013, Mary Mayhew
was the Commissioner and policymaker for MDHHS. Id.
¶¶ 5, 26.
is a state agency responsible for overseeing Riverview.
Id. ¶ 14. Riverview is a state-operated
forensic hospital located in Augusta, Maine that provides
psychiatric services to the corrections and judicial systems,
including care for those committed under Maine statutes for
observation and evaluation, persons found not criminally
responsible, and for those found incompetent to stand trial.
Id. ¶ 15. Since 1990, Riverview has been
operating under a Consent Decree and incorporated Settlement
Agreement. Id. ¶ 16. According to the Consent
Decree, Riverview failed to meet constitutional, statutory,
and regulatory standards which deprived patients of
fundamental rights, including freedom from restraint and
freedom from abuse. Id. ¶ 17. The Consent
Decree is a contract between MDHHS and class members, which
includes all patients admitted to Riverview on or after
January 1, 1988; Ms. Edson is a member of this protected
class. Id. ¶ 18.
is a Medicaid and/or Medicare participating hospital that has
accepted federal funds. Id. ¶ 20. Following two
highly publicized incidents of client abuse and subsequent
investigation, the United States Centers for Medicaid and
Medicare Services (CMS) found that Riverview violated
constitutional, statutory, and regulatory standards.
Id. ¶ 21. As a result of Riverview's
multiple violations, it was decertified by CMS on or about
September 2, 2013 for failing to comply substantially with
Title XVIII of the Social Security Act and implementing
regulations of the Secretary of Health and Human Services
specified at 42 C.F.R. Part 482, Conditions of Participations
for Hospitals. Id. ¶ 22. For approximately two
years, Riverview operated without court supervision under the
Consent Decree until about October 25, 2013, when State
Superior Court supervision was reinstated. Id.
The December 2, 2013 Incident
special relationship existed between Arlene Edson and
Riverview because the law required her to be in
Riverview's physical custody. Id. ¶ 24. As
a result of the special relationship, Mary Mayhew had a duty
to control the conduct of parties to prevent them from
harming Ms. Edson. Id. ¶ 25. On December 2,
2013, Ms. Edson was a forensic patient at Riverview, housed
in the Lower Saco Unit, which Riverview used to house
forensic patients. Id. ¶¶ 28-29.
the evening of December 2, 2013, William Lord, Jr. was the
Registered Nurse and the Nurse on Duty in the Lower Saco
Unit. Id. ¶ 30. During that evening, Kelly
Lavigne and Carlos Taylor, III were working as corrections
officers (COs) in the Lower Saco Unit under contract between
Riverview and/or MDHHS and the Maine Department of
Corrections. Id. ¶ 31. Corrections Officers
Lavigne and Taylor wore video camera recording devices while
on duty at Riverview that evening. Id. ¶ 32.
Riverview also had surveillance video cameras, which recorded
the hall and nurses' station in the Lower Saco Unit.
Id. ¶ 33.
December 2, 2013 at approximately 8:15 p.m., Ms. Edson left a
bathroom and walked into a conference room. Id.
¶ 34. When she walked into the conference room, Ms.
Edson was followed by a corrections officer but no clinical
staff. Id. ¶ 35. Ms. Edson asked to be left
alone, but the corrections officer confronted her about a
comment she had made earlier in the evening. Id.
¶ 36. Ms. Edson left the conference room and began to
undress as she walked back to her room. Id. ¶
37. Nurse Lord said to Ms. Edson: “I'll go with a
three-strike rule basically, if we gotta do that.”
Id. ¶ 38. After that, Ms. Edson put her
clothing outside the door leading to the hallway.
Id. ¶ 39. Nurse Lord and three other Riverview
employees saw Ms. Edson put her clothes in the hallway.
Id. ¶ 40. A corrections officer picked up Ms.
Edson's clothing and placed it in the doorway of her
room, after which Ms. Edson kicked her clothes back into the
hallway. Id. ¶ 41. Out of view of
Riverview's surveillance cameras, a corrections officer
picked up Ms. Edson's clothes and removed them from the
hallway. Id. ¶ 42.
December 2, 2013 at approximately 8:58 p.m., Ms. Edson was
standing naked in her room with her back against a wall,
shoulders hunched forward, displaying no signs of assaultive,
violent or aggressive behavior. Id. ¶ 43.
Without provocation, Corrections Officer Lavigne sprayed Ms.
Edson with pepper spray, causing her to cough, spit, choke
and double over in pain. Id. ¶ 44. Corrections
Officer Taylor asked Nurse Lord: “Do you want [Ms.
Edson] cuffed?” Id. ¶ 45. After Nurse
Lord said “yes, ” Corrections Officer Taylor
handcuffed Ms. Edson while she was on the floor, even though
she was not assaultive, violent or aggressive. Id.
Edson told Corrections Officers Lavigne and Taylor that she
could not breathe and asked for a shower to remove the pepper
spray, but her requests were ignored. Id. ¶ 47.
Ms. Edson was wrapped in a sheet, taken to another room,
placed on her back, and placed in five-point restraints.
Id. ¶ 48. Ms. Edson told those present that the
pepper spray was running down her nose and once again begged
for a shower to remove the pepper spray. Id. ¶
49. While Ms. Edson was begging for a shower, a male
Riverview staff member could be heard on the recording
coughing from the pepper spray used against Ms. Edson.
Id. ¶ 50. A video recording shows that at 9:04
p.m., Ms. Edson continued to beg for a shower and asked for
someone to speak with the nurse. Id. ¶ 51. The
video recording shows a mental health worker wiping his or
her face off with a wash cloth in an effort to remove the
pepper spray affecting him or her. Id. ¶ 52.
December 2, 2013, Nurse Lord talked on the telephone and
stood at the nurses' station for approximately fifteen
minutes after Ms. Edson was pepper sprayed. Id.
¶ 53. Ms. Edson continued to cough, beg and whimper from
the effects of the pepper spray and was denied a blanket and
the water she asked for. Id. ¶ 54. A Riverview
video recording shows Ms. Edson was still restrained at 9:18
p.m., while she continued to ask for a nurse. Id.
¶ 55. Ms. Edson told a Riverview nurse on duty that her
side was burning, and in response, Staff said: “If it
was burning that bad, you would know what to do to get out of
here, but you aren't, ” after which they left her
still in restraints with the corrections officers.
Id. ¶¶ 56-57. Riverview's surveillance
video shows that Ms. Edson was passive and cooperative
throughout these events. Id. ¶ 58.
Edson was not seen by a nurse until 11:30 p.m., almost three
hours after she was pepper sprayed. Id. ¶ 59.
The nurse who saw Ms. Edson discussed
“boundaries” with her, after which she released
her from the restraints and allowed her to take a shower.
Id. ¶ 60. Ms. Edson suffered extreme physical
and mental pain and humiliation by being pepper sprayed and
restrained without cause or provocation while Riverview staff
and corrections officers ignored her pleas for help.
Id. ¶ 61.
Riverview Policies and Arlene Edson
policy on the use of restraints stated that physical
“[r]estraint will be used only when there exists an
imminent risk of danger to the individual or others and no
other safe and effective intervention is possible.”
Id. ¶ 62. Riverview policy defined
“imminent threat” as “making verbal threats
to harm, posturing to physically harm, brandishing an item
that could be used as a weapon, concealing a weapon that they
are refusing to surrender, taking a hostage, holding an item
to themselves and threatening to harm themselves or others,
or attempting to escape.” Id. ¶ 63. Ms.
Edson's behavior during the events of December 2, 2013
did not satisfy the definition of “imminent
threat” under Riverview policy. Id. ¶ 64.
policy on the use of restraints also stated: “Law
enforcement restraints will never be used for the purposes of
discipline, coercion, active treatment, staff convenience or
as a replacement for adequate levels of staff.”
Id. ¶ 65. Riverview policy defined abuse as
“the infliction of injury, unreasonable confinement,
intimidation or cruel punishment that causes, or is likely to
cause, physical harm or pain or mental anguish, sexual abuse
or sexual exploitation.” Id. ¶ 66. In
accordance with Riverview's policies, staff was
responsible for taking “action to protect clients from
abuse” and to immediately “report abuse . . .
which they have witnessed or have knowledge of.”
Id. ¶ 67. On December 2, 2013, Riverview's
Documentation Standards and Requirements' Protocol and
Procedure stated: “Accurate, detailed documentation
shows the extent and quality of care provided, the outcome of
that care and the treatment and education that the client
still needs.” Id. ¶ 68.
Defendants actively concealed the abuse inflicted on Ms.
Edson by Riverview staff and corrections
personnel. Id. ¶ 69. The Defendants
failed to follow the law, policies, guidelines, protocols and
terms of the Consent Decree in regard to the events leading
to the abuse inflicted on Ms. Edson. Id. ¶ 70.
The Defendants filled out false and misleading paperwork and
reports about what happened to Ms. Edson. Id. ¶
71. A December 2, 2013 nursing note falsely stated that Ms.
Edson was “unable to deescalate with multiple attempts
. . . began banging head and kicking, hitting walls.
[Corrections Officers] intervened as client was kicking holes
and picking shards of wall, warned client several
times.” Id. ¶ 72. In fact, Ms. Edson did
not bang her head, kick or hit the walls, display any
threatening behavior, or put a hole in the wall of her room
during the incident. Id. ¶ 73.
December 2, 2013, Julia Wise, PA-C, filled out a Medical
Staff Restraint and SRC Progress Note which stated Ms. Edson
“was maced, put back in restraints, see CO/Nursing
notes for more details” at 9:00 p.m. and never
mentioned the use of pepper spray against Ms.
Edson. Id. ¶ 74. Riverview
Psychiatric Center Incident Report #5255 dated December 2,
2013 and signed by Nurse Lord at 9:00 p.m. stated:
“Client cont'd banging, kicking, property
destruction despite several attempts to redirect and
deescalate verbally . . . CO's Lavigne/Taylor intervened,
gave the client several warnings to gain control of behavior
. . . Client sprayed by CO-behavior ceased
immediately-staff/patient [without] injury.”
Id. ¶ 75.
“Seclusion and Restraint Events Policy” stated:
“Seclusion and restraints are considered emergency
measures or interventions of last resort to protect clients
in imminent danger of harming him/herself or others . . .
seclusion and restraint will be used only when there exists
an imminent risk of danger to the individual or others and no
other safe and effective intervention is possible.”
Id. ¶ 76. Ms. Edson was pepper sprayed and
placed in five-point restraints, even though she was not in
imminent danger of harming herself or others. Id.
“Seclusion and Restraint Events Policy” required
a physician, physician's assistant, or nurse practitioner
to evaluate the client within thirty minutes of the
initiation of restraint and to document the findings of the
evaluation in a progress note. Id. ¶ 78.
Riverview had no documentation showing that Ms. Edson was
given a physical examination after she was pepper sprayed.
Id. ¶ 79.
though Maine law required Riverview staff and corrections
personnel to immediately report Ms. Edson's abuse to
MDHHS, her abuse was not reported to Maine's Adult
protective services until February 27, 2014. Id.
February 27, 2014 and March 10, 2014, Thomas Woodman, RN, HSC
II and Alelia Hilt-Lash, RN, BSN, MBA, HSS conducted an
investigation at Riverview, #ME00015398. Id. ¶
81. Investigation #ME00015398 substantiated the complaint for
abuse and inappropriate use of restraints on Ms. Edson.
Id. ¶ 82.
THE COUNTS AGAINST MARY MAYHEW
Second Amended Complaint contains sixteen counts; Ms. Edson
directs six against Ms. Mayhew: (1) Count IV-failure to train
pursuant to 42 U.S.C. § 1983; (2) Count V-supervisory
liability pursuant to 42 U.S.C. § 1983; (3) Count
VI-custom, practice and policy liability pursuant to 42
U.S.C. § 1983; (4) Count VIII-Americans with
Disabilities Act (ADA) pursuant to 42 U.S.C. § 12132;
(5) Count IX-equal protection pursuant to 42 U.S.C. §
1983; and (6) Count XII-negligent supervision under Maine
state law. Second Am. Compl. at 1-26. Ms.
Edson's Second Amended Complaint specifies that she is
bringing Count VIII, the ADA claim, against Commissioner
Mayhew only in her official capacity. Id. at 18
(“Riverview Psychiatric Center, Mayhew & McEwen
in their Official Capacities”). Therefore, the
pending motion does not reach Count VIII. The remaining five
Counts against Ms. Mayhew, all of which make claims against
her in her individual capacity, may be broadly categorized
into two theories: constitutional rights claims and a state
THE PARTIES' POSITIONS
Mary Mayhew's Motion
motion to dismiss, Mary Mayhew moves for the dismissal of the
Counts against her only to the extent those Counts assert
claims against her in her individual, not official capacity.
Def.'s Mot. at 1. Regarding the constitutional
rights claims, Ms. Mayhew points out that a supervisor may
not be held responsible under § 1983 based solely on her
position of authority and instead the law requires that the
plaintiff allege some individual misconduct on the part of
the supervisor to violate the plaintiff's constitutional
rights. Id. at 5-6. Citing First Circuit law, Ms.
Mayhew says that a supervisor may be liable under § 1983
if she is the “primary violator or direct participant
in the right-violating incident” or if she
“supervises, trains, or hires a subordinate with
deliberate indifference toward the possibility that deficient
performance of the task eventually may contribute to a civil
rights deprivation.” Id. at 6 (quoting
Sanchez v. Pereira-Castillo, 590 F.3d 31, 49 (1st
Cir. 2009) (quoting Camilo-Robles v. Zapata, 175
F.3d 41, 43-44 (1st Cir. 1999))). Ms. Mayhew quotes the First
Circuit's three-part test for the deliberate indifference
inquiry: “(1) ‘that the officials had knowledge
of facts, ' from which (2) ‘the official[s] can
draw the inference' (3) ‘that a substantial risk of
serious harm exists.'” Id. at 6 (quoting
Ramírez-Lluveras v. Rivera-Merced, 759 F.3d
10, 20 (1st Cir. 2014) (quoting Ruiz-Rosa v.
Rullán, 485 F.3d 150, 157 (1st Cir. 2007))). She
says that the plaintiff must also demonstrate that there is a
“strong causal connection between the supervisor's
conduct and the constitutional violation, ”
id. (quoting Ramírez-Lluveras, 759
F.3d at 19), and that the supervisor's conduct “led
inexorably to the constitutional violation.”
Id. at 6-7 (quoting
Ramírez-Lluveras, 759 F.3d at 19-20 (emphasis
added) (quoting Hegarty v. Somerset Cty., 53 F.3d
1367, 1380 (1st Cir. 1995))). Finally, she notes that the
“supervisor must have notice of the unconstitutional
condition said to lead to the claim.” Id. at 7
(quoting Ramírez-Lluveras, 759 F.3d at 20).
these standards, Ms. Mayhew sees three potential bases in the
Second Amended Complaint for liability: (1) that she was
involved in the decision to place correctional officers at
Riverview; (2) that she failed to properly train Riverview
staff; and (3) that she failed to properly supervise
Riverview staff. Id. Turning to the first theory,
the placement decision, Ms. Mayhew points to the allegations
in Ms. Edson's Count IV, where Ms. Edson claims that Ms.
Mayhew with Mary Louise McEwen and William Lord, Jr. made a
decision “to use corrections officers at
Riverview” and to “put the officers in direct
contact with vulnerable and mentally ill at-risk patients,
including Ms. Edson.” Id. (quoting Second
Am. Compl. ¶ 101). Ms. Mayhew argues that this
decision “does not support a Section 1983 claim against
[her]” because this decision did not lead
“‘inexorably' to Ms. Edson being
pepper-sprayed and placed into restraints.”
Id. Even if Ms. Edson's complaint could be
construed as meeting this standard, Ms. Mayhew contends that
Ms. Edson's complaint does not allege facts sufficient to
establish that, in staffing Riverview with corrections
officers, she was deliberately indifferent as to the
consequences of this decision on the civil rights of
patients, including Ms. Edson, or that she had knowledge of
facts from which she could have drawn the inference that to
do so would place the patients at a “substantial risk
of serious harm.” Id. at 7-8 (quoting
Ramírez-Lluveras, 759 F.3d at 20).
the second theory, failure to train, Ms. Mayhew notes that
Ms. Edson has alleged in Count IV that she, Ms. McEwen and
Mr. Lord “failed to train Riverview employees [on] how
to deal with, interact, and protect mentally ill
patients.” Id. at 8 (quoting Second Am.
Compl. ¶ 102). Even assuming that this allegation
is sufficient to allege inadequate training, Ms. Mayhew
argues that there are no specific allegations that she,
“the head of the entire Department of Health and Human
Services, was responsible for training Riverview
employees.” Id. Ms. Mayhew contends that
without specific allegations, this theory amounts to an
attempt to hold Ms. Mayhew responsible under the doctrine of
respondeat superior, which is not applicable to § 1983
claims. Id. at 9.
on the third theory, the failure to supervise found in Count
VI, Ms. Mayhew quotes the allegation, which states that she
failed to end a “workforce culture” that
“made patient abuse at Riverview likely because staff
members routinely provoked responses from patients and
ostracized and/or marginalized employees who reported patient
abuse.” Id. (quoting Second Am.
Compl. ¶ 115).
Ms. Mayhew argues that there is no allegation that she was
“directly involved in the management of Riverview such
that she can be held responsible for the December 2
incident.” Id. In support of her position, Ms.
Mayhew cites Ashcroft v. Iqbal, 556 U.S. 662 (2009),
and maintains that the Supreme Court's dismissal of the
Attorney General and the Director of the Federal Bureau of
Investigation suggests the same result should obtain here.
Id. at 9-10. She also cites
Feliciano-Hernández v. Pereira-Castillo, 663
F.3d 527, 533-34 (1st Cir. 2011), where the First Circuit
concluded that similar allegations against “very
high-level officials” with “vast
responsibilities” could not be subject to suit based on
“conclusory allegations.” Id. at 10-11.
Ms. Mayhew maintains that even if Ms. Edson has successfully
stated a § 1983 claim, Ms. Mayhew is entitled to
qualified immunity “insofar as [her] conduct does not
violate clearly established statutory or constitutional
rights of which a reasonable person would have known.”
Id. at 11 (quoting Pearson v. ...