United States District Court, D. Maine
ARTHUR J. LONG, Plaintiff,
OFFICER BRENT D. ABBOTT, et al., Defendants.
SUMMARY JUDGMENT ORDER
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
Plaintiff brings a 42 U.S.C. § 1983 claim against an
officer of the Portland Police Department (PPD) alleging
various constitutional violations associated with his arrest
on August 9, 2014. The Plaintiff also asserts tort claims of
assault and unlawful arrest against the officer under Maine
state law. Additionally, the Plaintiff brings suit against
the chief of the PPD and the city of Portland under the
theories of supervisory and municipal liability,
on the Defendants' motion for summary judgment, the Court
concludes that there are no genuine issues of material fact
on the claims against the chief of the PPD and the city of
Portland and that they are entitled to judgment as a matter
of law. The Court determines that the Maine Tort Claims Act
(MTCA) bars the Plaintiff's state law claims against the
officer because the Plaintiff failed to give timely notice of
his claims under the statute. However, the Court concludes
that genuine disputes of material fact preclude summary
judgment on the Plaintiff's constitutional claims against
the officer and that qualified immunity does not bar the
Plaintiff's suit on those claims.
22, 2015, Arthur J. Long brought suit against (1) the city of
Portland, Maine; (2) James Craig, the chief of the PPD; and
(3) Brent Abbott, an officer with the PPD. Compl.
and Demand for Jury Trial (ECF No. 1) (Compl.).
The following day, Mr. Long filed an amended complaint that
corrected minor typographical errors. First Am. Compl.
and Demand for Jury Trial (ECF No. 3). On August 21,
2015, Mr. Long amended his complaint a second time to
substitute Michael Sauschuck for James Craig as the chief of
the PPD. Second Am. Compl. and Demand for Jury Trial
(ECF No. 4). The city of Portland, Chief Sauschuck, and
Officer Abbott (the Defendants) filed an answer on October 9,
2015. Answer, Aff'tive Defenses and Jury Trial
Demand (ECF No. 8).
December 8, 2015, Mr. Long moved to amend his second amended
complaint, Assented to Mot. to File Third Am. Compl.
(ECF No. 13), and prospectively filed the third amended
complaint with the Court. Third Am. Compl. and Demand for
Jury Trial (ECF No. 14). The Court granted the motion
without objection on December 9, 2015. Order Granting
Without Obj. Mot. to Amend (ECF No. 15). The Defendants
answered on December 18, 2015. Answer and Aff'tive
Defenses to Third Am. Compl. and Jury Trial Demand (ECF
April 12, 2016, Mr. Long moved to amend his third amended
complaint. Mot. to File Am. Compl. (ECF No. 22). The
Defendants objected on May 2, 2016. Defs.' Obj. to
Pl.'s Mot. to File Am. Compl. (ECF No. 23). Mr. Long
replied the following day. Reply Mem. Supporting Mot. to
File Third Am. Compl. (ECF No. 24). On May 16, 2016, the
Court granted the motion to amend. Oral Order Granting
Mot. to Am. Compl. (ECF No. 27). Mr. Long filed the
Fourth Amended Complaint on May 17, 2016. Fourth
(and last) Am. Compl. and Demand for Jury Trial
(ECF No. 28) (Fourth Am. Compl.). The Defendants
answered on May 25, 2016. Answer and Aff'tive
Defenses to Fourth Am. Compl. and Jury Trial Demand (ECF
No. 29) (Answer).
Summary Judgment Filings
15, 2016, the Defendants moved for summary judgment on all
counts in Mr. Long's Fourth Amended Complaint,
Defs.' Mot. for Summ. J. (ECF No. 30)
(Defs.' Mot.), and provided a supporting
statement of material facts. Defs.' Statement of
Material Facts in Supp. of Mot. for Summ. J. (ECF No.
31) (DSMF). Mr. Long opposed the Defendants' motion on
July 6, 2016. Pl.'s Opp'n to Defs.' Mot. for
Summ. J. (Pl.'s Resp.). Mr. Long also
submitted a response to the Defendants' statement of
material facts, Pl.'s Opp'n, Attach. 1,
Pl.'s Resp. to Defs.' Statement of Material Facts
and Pl.'s Statement of Fact at 1-21 (ECF No. 35)
(PRDSMF), as well as a statement of additional material
facts. Id. at 21-39 (PSAMF). On August 10, 2016, the
Defendants replied to Mr. Long's opposition.
Defs.' Reply in Supp. of Mot. for Summ. J. (ECF
No. 40). The Defendants also filed a reply to Mr. Long's
statement of additional materials facts. Defs.' Resp.
to Pl.'s Statement of Additional Facts (ECF No. 41)
SUMMARY JUDGMENT FACTS
Arthur J. Long
J. Long, the Plaintiff in this case, lived in Portland,
Maine, from his birth until his twenties. PSAMF ¶ 12;
DRPSAMF ¶ 12. He last lived in Portland on a regular
basis in 1978. PSAMF ¶ 13; DRPSAMF ¶ 13. From 1972
to 1978, Mr. Long worked as a reserve officer for the
Portland Police Department. PSAMF ¶ 16; DRPSAMF ¶
16. Mr. Long attended the Maine Criminal Justice Academy and
graduated in 1978. PSAMF ¶ 15; DRPSAMF ¶ 15. From
1977 to 1992, Mr. Long worked as a full-time law enforcement
officer at the following departments: Thomaston Police, York
County Sheriff's Office, Old Orchard Beach Police, and
Kittery Police. PSAMF ¶ 16; DRPSAMF ¶ 16. Mr. Long
is currently self-employed as a contractor. PSAMF ¶ 17;
DRPSAMF ¶ 17.
Events Leading to the Arrest
August 9, 2014, Arthur J. Long drove to Portland for a visit
and arrived at approximately 6:00 PM. PSAMF ¶ 2;
DRPSAMF ¶ 2. Mr. Long has a sister who lives on Munjoy
Hill in Portland, and he visited her on August 9, 2014. PSAMF
¶ 14; DRPSAMF ¶ 14. He spent the evening walking
throughout the Old Port and peninsula. PSAMF ¶ 2;
DRPSAMF ¶ 2. People of all ages were out walking and
enjoying the evening. Id. Others were taking
advantage of the warm night temperature by eating outside in
front of their respective eateries. Id.
around 10:00 PM, Mr. Long entered an establishment called
“Asylum.” PSAMF ¶ 3; DRPSAMF ¶ 3.
There, he ordered food and consumed less than two glasses of
beer before leaving at around 11:00 PM. Id. Mr. Long
started to walk toward his vehicle, which was parked on Park
Avenue in Portland near the Post Office. PSAMF ¶ 4;
DRPSAMF ¶ 4.
walk, he encountered an individual-identified in the record
as Peter Bowers-sitting on the stairs in front of a building
at 24 Preble Street. Id. As Mr. Long approached, Mr.
Bowers, whom Mr. Long did not know, said “great night,
huh?” Id. The two men struck up a
conversation. Id. As the conversation continued, Mr.
Long sat down on the stairs with Mr. Bowers. Id. Mr.
Bowers started talking about his girlfriend, and how they had
had a falling out and she had left. Id. Mr. Bowers
R. 56(c). The Court interprets this subsection as
incorporating a modicum of common sense. The subsection does
not mean that each statement of material fact must be limited
to one sentence only. Its purpose is to require the proposing
party to clearly provide record support for his proposed
facts and to allow the responding party to isolate specific
facts and object to them. Although Mr. Long has occasionally
stretched the spirit of the local rule, the Defendants have
been able to interpose objections and the Court has been able
to rule on them. The Court overrules each of the
Defendants' Local Rule 56(c) objections. was drinking
from a beer can, and Mr. Long noticed another open beer can
to the left of where Mr. Long was seated. Id. Mr.
Long did not sip from any of the several cans of beer on or
near the stairway at 24 Preble Street. PSAMF ¶ 27;
DRPSAMF ¶ 27.
Mr. Long's Refusal to Provide Identification
Brent Abbott, who began serving as a patrol officer for the
PPD in 2011, was on duty on the evening of August 9, 2014.
DSMF ¶¶ 1-2; PRDSMF ¶¶ 1-2. Shortly
before midnight, Officer Abbott and another Portland police
officer, Michael Bennis, received a call from dispatch to
respond to a complaint of four to five males drinking in
public and loitering at 24 Preble Street. DSMF ¶ 3;
PRDSMF ¶ 3; PSAMF ¶¶ 18, 53-54; DRPSAMF
¶¶ 18, 53-54. When Officers Abbott and Bennis
arrived at 24 Preble Street, they found two white males-a
younger man and an older man- seated on the steps in front of
the building. DSMF ¶ 4; PRDSMF ¶ 4. Mr. Long was
one of the two men. DSMF ¶ 7; PRDSMF ¶ 7. At no
time did Mr. Long see a group of 4-5 males drinking on the
stoop. PSAMF ¶ 19; DRPSAMF ¶ 19.
Long observed the two Portland police cruisers arrive. PSAMF
¶ 5; DRPSAMF ¶ 5. Officer Abbott exited the first
cruiser and donned a pair of leather gloves. Id.
There were several cans of beer near the stairway, including
an open can approximately seven feet from Mr.
Long. DSMF ¶¶ 5, 8; PRDSMF
¶¶ 5, 8; PSAMF ¶ 26; DRPSAMF ¶ 26. The
lighting where the incident occurred was adequate but not
very bright. PSAMF ¶ 24; DRPSAMF ¶ 24. There was no
overhead lighting at 24 Preble Street, and the closest
overhead light was approximately 200 feet away. Id.
According to Officer Abbott, the beer cans had a “sweat
line” on them, indicating that they contained
beer. DSMF ¶ 6; PRDSMF ¶ 6; PSAMF
¶ 25; DRPSAMF ¶ 25.
at no point prior to arresting Mr. Long did Officer Abbott
touch or approach within seven feet of any beer can. PSAMF
¶ 25; DRPSAMF ¶ 25.
Abbott regularly patrolled the area around 24 Preble
Street. DSMF ¶ 11. According to the
Defendants, at the time Officer Abbott encountered the two
men on August 9, 2014, he believed that the city of Portland
had posted signs prohibiting drinking at intervals of
approximately 200 feet in the area encompassing 24 Preble
Street and that there was such a sign within 200 feet of the
address. DSMF ¶¶ 9- 11. By contrast,
Mr. Long states that he returned to the area shortly after
August 9, 2014, and there were no signs prohibiting drinking
within 200 feet of 24 Preble Street. PSAMF ¶ 28;
DRPSAMF ¶ 28. Despite Mr. Long's long association
with the city of Portland, PSAMF ¶ 29; DRPSAMF ¶
29, he asserts that over a span of forty-five years, he has
never observed a location in the city of Portland, with the
exception of Wharf Street, where there are signs prohibiting
drinking posted at intervals of 200 feet.,  PSAMF
¶¶ 29; 31-32; DRPSAMF ¶¶ 29, 31-32. The
only places in the city of Portland where Mr. Long has
observed posted signs prohibiting drinking and referencing
the drinking in public ordinance are in the parts of the city
with the densest concentrations of drinking establishments,
including the Old Port on Wharf Street, Fore Street, and
Commercial Street, the bottom of Exchange and Market Streets,
Congress Street near High Street and near the intersection of
Washington Avenue, next to the Snug Pub and Sulky
Lounge. PSAMF ¶ 30; DRPSAMF ¶ 30.
Abbott believed that it was PPD policy to issue a warning to
a person suspected of drinking in public-unless that person
had already received a warning earlier in the calendar
year. DSMF ¶ 13; PRDSMF ¶ 13. As
Officer Abbott understood it, the officers ask for a
suspect's identification to determine if a suspect
previously received a warning and to generate a report if a
warning is necessary. DSMF ¶ 14; PRDSMF ¶ 14.
Officer Abbott asked both Mr. Long and Mr. Bowers for
identification. PSAMF ¶ 5; DRPSAMF ¶ 5.
Officer Abbott did not inform Mr. Long of the PPD's
warning policy. PSAMF ¶¶ 37-38; DRPSAMF
¶¶ 37-38. Mr. Bowers provided Officer Abbott with
identification. DSMF ¶ 15; PRDSMF ¶ 15; PSAMF
¶ 5; DRPSAMF ¶ 5. The officers gave Mr. Bowers a
warning not to drink in public and advised him to move along.
DSMF ¶ 16; PRDSMF ¶ 16.
Long asked Officer Abbott why he wanted him to produce
identification. PSAMF ¶ 5; DRPSAMF ¶ 5. Officer
Abbott said to Officer Bennis, “Oh, we got a wise guy
here.” Id. Officer Abbott stated to Mr. Long,
“Didn't you know that it's against the law to
drink in public?” Id.; PSAMF ¶ 34;
DRPSAMF ¶ 34. Mr. Long immediately told Officer Abbott
that he was not drinking in public. PSAMF ¶¶ 5, 27;
DRPSAMF ¶ 5, 27. Officer Abbott referred to the open
beer can to Mr. Long's left, and Mr. Long explained that
the beer can was there before he arrived. PSAMF ¶ 5;
DRPSAMF ¶ 5. Officer Abbott never observed Mr. Long take
a drink from the nearby beer cans, PSAMF ¶ 57, DRPSAMF
¶ 57, and Mr. Long repeatedly denied that he had been
drinking in public. PSAMF ¶¶ 34-35, 58; DRPSAMF
¶¶ 34-35, 58. While Officer Abbott confronted Mr.
Long, Officer Bennis went looking without success for a sign
posted within 200 feet prohibiting drinking. PSAMF
¶ 70; DRPSAMF ¶ 70.
Abbott again requested Mr. Long's identification, and Mr.
Long again asked why. PSAMF ¶ 6, 36; DRPSAMF ¶ 6,
36. Officer Abbott asked Mr. Long, “Do you live
here?” PSAMF ¶ 6; DRPSAMF ¶ 6. Mr. Long
replied that he did not. Id. Officer Abbott stated,
“You're trespassing.” Id. Mr.
Long formerly served as a police officer in Maine and did not
believe that he was trespassing. Id.; PSAMF
¶¶ 15- 16; DRPSAMF ¶¶ 15-16. The stoop
was approximately ten feet across and Mr. Long and Mr. Bowers
were not blocking entry or exit from the
building. PSAMF ¶¶ 21, 23. To Mr.
Long's knowledge, no one complained to them or about them
regarding their blocking public access to the building or
committing any other act. PSAMF ¶ 22;
DRPSAMF ¶ 22.
Abbott said, “Let's see some ID or you're going
to fucking jail.” PSAMF ¶ 7; DRPSAMF ¶ 7;
DSMF ¶ 21; PRDSMF ¶ 21. Mr. Long protested Officer
Abbott's decorum and language and asked why he would be
going to jail. Id. Officer Abbott responded,
“For not providing ID.” PSAMF ¶ 7; DRPSAMF
¶ 7. Mr. Long replied, “I'm not giving you my
ID.” Id.; DSMF ¶¶ 17, 20, 22; PRDSMF
¶¶ 17, 20, 22.
point, Mr. Long told Officer Abbott that he was going to
video tape the incident on a cell phone. PSAMF ¶ 42;
DRPSAMF ¶ 42. Immediately thereafter, Officer Abbott
ordered Mr. Long to stand up, turn around, and put his hands
behind his back. PSAMF ¶¶ 8, 43; DRPSAMF
¶¶ 8, 43. According to the Defendants, both when
Officer Abbott requested Mr. Long's identification and
when he made the arrest, Officer Abbott believed that he had
probable cause that Mr. Long was drinking in public and
loitering. DSMF ¶ 28; PRDSMF ¶ 28;
PSAMF ¶ 56; DRPSAMF ¶ 56. At no time during the
encounter did Officer Abbott believe that he was in any kind
of danger. PSAMF ¶ 85; DRPSAMF ¶ 85.
Long was getting up and beginning to turn around and put his
hands behind his back, Officer Abbott shoved Mr. Long from
behind. DSMF ¶ 30; PRDSMF ¶ 30; PSAMF ¶¶
8, 44; DRPSAMF ¶¶ 8, 44. Mr. Long could not tell
whether he was shoved by one hand or two. DSMF ¶ 32;
PRDSMF ¶ 32. Mr. Long was not punched or struck with any
implement. DSMF ¶ 31; PRDSMF ¶ 31. Mr. Long fell
face down onto the steps, hitting the second stair with his
chest. PSAMF ¶¶ 8, 77; DRPSAMF ¶¶ 8, 77;
DSMF ¶ 33; PRDSMF ¶ 33. Officer Abbott then placed
handcuffs on Mr. Long. PSAMF ¶ 8; DRPSAMF ¶ 8; DSMF
¶ 34; PRDSMF ¶ 34. Although Mr. Long never
consented to Officer Abbott touching him in any manner, Mr.
Long did not resist. PSAMF ¶¶ 40-41, 84; DRPSAMF
¶¶ 40-41, 84. As Officer Abbott helped Mr. Long to
his feet, Mr. Long requested to see a supervisor. PSAMF
¶ 8; DRPSAMF ¶ 8. Mr. Long did not sustain a
bruise, nor did he seek any medical treatment as a result of
the incident. DSMF ¶ 35; PRDSMF ¶ 35; PSAMF ¶
46; DRPSAMF ¶ 46.
the supervisor arrived, Officer Abbott reached into Mr.
Long's front left pocket and removed Mr. Long's
wallet. PSAMF ¶ 9; DRPSAMF ¶ 9.
Sometime later, prior to being transported to the
Sheriff's office and while still in handcuffs, Mr. Long
asked Officer Abbott if he still had Mr. Long's wallet.
Id. Officer Abbott looked around as if he had
misplaced it. Id. Mr. Long scanned the area and
located his wallet resting on the stairs. Id.
Officer Abbott said, “There's no ID in it.”
Id.; DSMF ¶ 25; PRDSMF ¶ 25. Mr. Long did
not keep his identification in his wallet; rather, he kept
his identification and credit cards in a hard case that was
located in his front right pocket. PSAMF ¶ 9; DRPSAMF
¶ 9. However, the wallet did contain over $700 in cash.
Id. Officer Abbott asked for Mr. Long's
identification one more time, and Mr. Long again refused.
DSMF ¶ 26; PRDSMF ¶ 26.
the supervisor arrived, Mr. Long related his version of the
events, including what he perceived to be Officer
Abbott's unprofessional, profane language and
conduct. PSAMF ¶ 10, DRPSAMF ¶ 10.
Subsequently, the officers transported Mr. Long to the
Cumberland County Jail where he went through a booking
process. PSAMF ¶ 11, DRPSAMF ¶ 11. Mr. Long was
charged with failure to give a correct name and date of
birth, in violation of 17-A M.R.S. § 15-A(2). DSMF
¶ 36; PRDSMF ¶ 36. Officer Abbott did not arrest or
cite Mr. Long for the offenses of drinking in public or
loitering. PSAMF ¶¶ 72, 76, DRPSAMF ¶¶
72, 76. Mr. Long engaged a criminal defense attorney to
defend him against the charges, and despite the fact that the
case was dismissed early on, he paid a flat fee of $1, 500.
PSAMF ¶ 52; DRPSAMF ¶ 52.
The Internal Investigation
August 10, 2014-one day after the arrest-Mr. Long typed a
statement of facts that described his version of the events
the night before. PSAMF ¶ 50; DRPSAMF ¶ 50.
Dep. of Arthur Long, Ex. 3, Statement of Arthur
J. Long at 32-33 (ECF No. 34) (Long Statement).
Almost four months later, on December 4, 2014, Mr. Long sent
his statement of facts along with a letter entitled
“Complaint of Officer and Department Conduct” to
Lieutenant Robert Martin of the Internal Affairs Division of
the PPD. Dep. of Arthur Long, Ex. 3, Compl. of
Officer and Dep't Conduct at 31 (ECF No. 34)
(Long Letter); DSMF ¶ 42; PRDSMF ¶ 42;
PSAMF ¶ 50; DRPSAMF ¶ 50. The letter notified
Lieutenant Martin that Mr. Long was submitting the statement
of facts “as a formal complaint against the arresting
officer and against those individuals who may be either
directly or indirectly involved in this matter.”
Long Letter at 31. In his complaint, Mr. Long did
not specifically state that the officers lacked probable
cause for the arrest or that the officers conducted an
unlawful search; nevertheless, the context of the letter
suggested that Mr. Long was complaining that he had been
arrested without probable cause. DSMF ¶ 43; PRDSMF
Julie Cannafarina investigated Mr. Long's complaint.
Dep. of Arthur J. Long at 26 (ECF No. 34) (Long
Dep.). She determined that Mr. Long's letter
contained two allegations: (1) that Officer Abbott used
excessive force, and (2) that Officer Abbott used profane and
unprofessional language. Id. at 26; DSMF ¶ 45;
PRDSMF ¶ 45. On July 23, 2015, Assistant Chief Vernon
Malloch reviewed Sergeant Cannafarina's investigation and
recommended “a finding of not sustained for both
allegations against Officer Abbott.” Long Dep.
at 27. On July 28, 2015, Chief Sauschuck concurred with
Assistant Chief Malloch and concluded that Mr. Long's
allegations were not sustained. Id. at 28-29; DSMF
¶ 46; PRDSMF ¶ 46; PSAMF ¶ 93; DRPSAMF ¶
93. Because the investigation did not address the issue of
probable cause, Chief Sauschuck did not evaluate that
issue. DSMF ¶ 37.
February 18, 2015, while the PPD investigated Mr. Long's
December 4, 2014 letter, Mr. Long visited Attorney Michael
Waxman. PSAMF ¶ 47; DRPSAMF ¶ 47. Attorney Waxman
drafted a “Notice of Claim” and sent it to the
PPD by certified mail on February 20, 2015. PSAMF
¶ 49; DRPSAMF ¶ 49; DSMF, Attach. 2, Pl.'s
Resp. to Req. for Production at 8-9 (ECF No. 31).
Chief Michael Sauschuck
Sauschuck has been the Chief of Police in Portland since
2012. DSMF ¶ 37; PRDSMF ¶ 37. Chief Sauschuck was
not present for the incident involving Mr. Long and had no
physical contact with Mr. Long on August 9, 2014. DSMF
¶¶ 38, 40; PRDSMF ¶¶ 38, 40. Chief
Sauschuck was not involved in the decision to arrest Mr.
Long, nor was he involved in any searches of Mr. Long. DSMF
¶¶ 39, 41; PRDSMF ¶¶ 39, 41.
maintains policies with regard to arrests, searches, and the
use of force. DSMF ¶ 56; PRDSMF ¶ 56. The PPD
requires that officers receive regular training on these
policies. DSMF ¶ 57. According to the
Defendants, Officer Abbott is familiar with the PPD policies
regarding arrests, searches, and the use of
force.DSMF ¶ 59. Since Officer Abbott
started with the PPD, he has received training in warrantless
arrests, lawful searches, the use of force, and requests for
identification. DSMF ¶¶ 60-63; PRDSMF
¶¶ 60, 62-63. The Defendants allege that from the
time of Chief Sauschuck's employment in 2012 through the
evening of August 9, 2014, Chief Sauschuck was not aware of
any pattern or practice of Portland police officers-including
Officer Abbott-making arrests without probable cause, using
excessive force, requesting identification without a proper
justification, or conducing unlawful searches. DSMF
¶¶ 48-55, 58.
Mr. Long's Fourth Amended Complaint
Long asserts the following claims:
Counts I-III (Violations of 42 U.S.C. § 1983)
Count I, Mr. Long alleges that Officer Abbott, under color of
state law, subjected Mr. Long to a deprivation of his
constitutional rights, specifically his rights to (1) bodily
integrity, (2) freedom from the use of unreasonable force,
(3) freedom from unreasonable warrantless searches, (4)
freedom from arrest except upon a finding of probable cause,
and (5) procedural and substantive due process. Fourth
Am. Compl. ¶ 53.
Count II, Mr. Long alleges that Chief Sauschuck's
“failure to a) properly supervise and/or discipline
Officer Abbott and/or b) promulgate appropriate policies
regarding arrests upon probable cause, and the use of force
and c) train his officers, including Officer Abbott, on
arrest upon probable cause and the appropriate use of
force” displayed a “reckless or callous disregard
of, or indifference to, the rights of Mr. Long.”
Count III, Mr. Long alleges Chief Sauschuck, as a policymaker
for the city of Portland, “adopted a custom or policy
of abdicating any appropriate level of supervision and/or
discipline” of Officer Abbott. Id. ¶ 73.
Mr. Long also asserts that Chief Sauschuck “adopted a
custom or policy of permitting his officers to make arrests
without establishing probable cause and to use force under
circumstances which do not in fact require such force, and to
conduct unreasonable searches.” Id. ¶ 74.
Mr. Long contends such an approach to the use of arrests and
force amounts to an unconstitutional custom or policy that
represented a “reckless or callous disregard of, or
indifference to, the rights of Mr. Long.” Id.
¶¶ 75, 77.
Counts IV (Assault) and V (Unlawful Arrest)
Count IV, Mr. Long alleges that Officer Abbott's actions
constituted an unjustified assault upon Mr. Long.
Id. ¶ 79. Further, in Count V, Mr. Long asserts
that Officer Abbott arrested him in bad faith and without
probable cause. Id. ¶ 82- 83.
The Defendants' Motion for Summary Judgment
Defendants request summary judgment on all counts in Mr.
Long's Fourth Amended Complaint. First, the Defendants
argue that the record evidence does not indicate that any of
the Defendants committed constitutional violations. Next, the
Defendants contend that qualified immunity protects Officer
Abbott and Chief Sauschuck from liability for alleged
constitutional violations. Finally, the Defendants claim that
Officer Abbott is entitled to summary judgment on Mr.
Long's state law claims because Officer Abbott is
entitled to discretionary function immunity and because Mr.
Long failed to comply with the procedural requirements of the
Mr. Long's Constitutional Claims
Probable Cause to Arrest Mr. Long
Defendants state that Officer Abbott arrested Mr. Long for
failure to give a correct name or date of birth in violation
of 17-A M.R.S. 15-A(2). Defs.' Mot. at 3. That
statute provides in relevant part that “[a]ny person
who a law enforcement officer has probable cause to believe
has committed or is committing a crime...who intentionally
fails or refuses to provide to that officer reasonably
credible evidence of that person's correct name, address
or date of birth commits a Class E crime[.]” 17-A
M.R.S. § 15-A(2).
Defendants claim that Officer Abbott had probable cause to
believe that Mr. Long committed the crime of drinking in
public in violation of 17 M.R.S. § 2003-A(2). According
to the Defendants:
Long's presence where males were reported to have been
drinking in public, and the fact that Mr. Long was next to an
open and partially full can of beer in an area the City
routinely posts with signs prohibiting public drinking,
constitute sufficient information to establish the elements
of the crime [of drinking in public.]” Defs.'
Mot. at 5.
the Defendants assert that Officer Abbott had probable cause
to believe that Mr. Long was loitering in violation of the
city of Portland's Code of Ordinances. Id. at 6.
The Defendants claim that Officer Abbott was aware of a
report of males loitering at 24 Preble Street and found Mr.
Long sitting on the stairs in front of that address.
Id. Given Mr. Long's presence at the point of
ingress and egress to 24 Preble Street, the Defendants argue
that Officer Abbott was justified in concluding that Mr. Long
was loitering. Id. Accordingly, the Defendants
contend that because Officer Abbott had probable cause to
believe that Mr. Long was drinking in public and loitering,
he also had probable cause to arrest Mr. Long for failing to
provide identification. Id.
response, Mr. Long asserts that the record fails to establish
that Officer Abbott had probable cause to arrest Mr. Long for
drinking in public and loitering. Pl.'s Resp. at
1-2 (citing, inter alia, PSAMF ¶¶ 65-67,
which includes Assistant Chief Malloch's deposition
testimony concerning whether probable cause existed to arrest
Mr. Long). Mr. Long points out that Officer Abbott did not
observe him drinking in public or “hindering access of
a public way to any person or vehicle.” Id. at
2. Because Officer Abbott lacked probable cause to suspect
that Mr. Long committed any underlying crime, Mr. Long
contends that Officer Abbott had no authority to arrest him
for refusing to provide identification. Id.
Therefore, Mr. Long asserts that the arrest violated his
right to be free from unreasonable seizures under the Fourth
Defendants reply that Mr. Long's opposition to summary
judgment “is premised on speculation, inadmissible
evidence, and conclusory assertions, but not upon a genuine
issue of material fact.” Defs.' Reply at
1. The Defendants assert, for instance, that Mr. Long has not
demonstrated that there was no sweat line on the beer can,
nor has he demonstrated that there was no sign prohibiting
drinking within 200 feet of 24 Preble Street. Id.
More generally, the Defendants contend that Mr. Long has
presented no evidence that would undermine Officer
Abbott's stated belief that a sign was posted nearby.
the Defendants take issue with Mr. Long's reliance on
certain statements by Assistant Chief Vernon Malloch.
Id. at 2. They point out that Mr. Long cannot rely
on Assistant Chief Malloch's opinions because Mr. Long
did not designate him as an expert. Id. at 2 (citing
Harriman v. Hancock County, 627 F.3d 22, 33 (1st
Search Incident to Arrest
Defendants assert that “[i]t is established law that a
law enforcement officer may search a person incident to a
valid arrest without the requirement of a warrant.”
Defs' Mot. at 7 (quoting United States v.
Robinson, 414 U.S. 218, 235 (1973)). The Defendants
acknowledge that Officer Abbott removed Mr. Long's wallet
before he announced that Mr. Long was under arrest.
Id. However, they contend that Officer Abbott's
conduct was nevertheless a lawful search incident to arrest
because Officer Abbott had probable cause to arrest Mr. Long
for failing to provide identification at the time he removed
Mr. Long's wallet. Id.
Long responds that Officer Abbott performed an unlawful
search when he reached into his pocket to extract his wallet.
Pl.'s Resp. at 2-3. He argues that the search
was not incident to an arrest because Officer Abbott
conducted the search before arresting him. Id. at 4.
Moreover, Mr. Long claims that the search did not constitute
a permissible frisk under Terry v. Ohio, 392 U.S. 1
(1968), because Officer Abbott was not concerned for his
safety or the safety of others. Id. at 3-4.
reply, the Defendants state that a search that occurs
immediately before a formal arrest is valid provided that
probable cause existed before the search. Defs.'
Reply at 2-3 (collecting cases). Because Officer
Abbott demonstrated that he had probable cause at the time he
removed Mr. Long's wallet, and because the formal arrest
occurred immediately thereafter, the Defendants argue that
the search was valid under the Fourth Amendment as incident
to arrest. Id. at 3.
Defendants contend that Officer Abbott's alleged actions
cannot support a claim of excessive force under the Fourth
Amendment because his alleged actions were “not
objectively unreasonable as a matter of law.”
Defs.' Mot. at 8. They point out that the
Supreme Court has held that “not every push or
shove” constitutes excessive force, id.
(citing Graham v. Connor, 490 U.S. 386, 396 (1989)),
and liken the case to Fernandez-Salicrup v.
Figueroa-Sancha, 790 F.3d 312 (1st Cir. 1990), in which
the First Circuit held that an officer did not use excessive
force when he shoved an individual face-first into a wall for
a minor violation, even though the individual did not pose an
immediate threat to the officer. Id. at 8-9.
Moreover, they claim that the amount of force that Officer
Abbott used can be “reliably informed by the
fact” that Mr. Long did not suffer any injuries or seek
any medical treatment. Id. at 10 (citing Dean v.
City of Worcester, 924 F.2d 364, 369 (1st Cir. 1991)).
Therefore, the Defendants claim that Officer Abbott's use
of force was not objectively unreasonable, and that they are
entitled to summary judgment. Id. at 11.
response, Mr. Long argues that Officer Abbott's
“gratuitous and completely unnecessary use of
force” violated his Fourth Amendment rights.
Pl.'s Resp. at 4-8. First, Mr. Long argues that
whether the use of force violates the Fourth Amendment
“is largely informed by the gravity of the
crime[.]” Id. at 5. Thus, he attempts to
distinguish Fernandez-Salicrup arguing that in that
case, the plaintiff was suspected of “rioting and
causing aggravated damages, ” whereas Mr. Long merely
refused to produce identification. Id. at 4.
Likewise, Mr. Long points out that the officers in
Dean suspected that the arrestee was an escaped
armed felon. Id. at 5-6. Mr. Long also contends that
serious harm is not necessary in order to make out a claim of
excessive force, and therefore the fact that Mr. Long did not
report any injury does not preclude his excessive force
claim. Id. at 6 (citing Lester v. Chicago,
830 F.2d 706, 714 (7th Cir. 1987)).
Mr. Long asserts that Officer Abbott's use of force
served “no legitimate penological purpose[.]”
Id. at 7. Instead, Mr. Long surmises that Officer
Abbott “felt justified in meting out some revenge
against Mr. Long for refusing to capitulate to his
demands.” Id. at 5. Mr. Long urges the Court
to allow a factfinder to determine whether Officer
Abbott's shove was sufficiently gratuitous and
unnecessary to constitute a violation of his Fourth Amendment
rights. Id. at 7-8 (citing Burbank v.
Davis, 227 F.Supp.2d 176, 186 (D. Me. 2002) (“if
[the officer] gratuitously and unnecessarily hit and
manhandled [the arrestee] for no legitimate law enforcement
reason it could not be objectively reasonable for it to be
non-apparent to him that his actions violated [the
Defendants reply that Mr. Long fails to distinguish
Fernandez-Salicrup, which they characterize as
controlling. Defs.' Reply at 3. They also assert
that Mr. Long's reliance on Burbank is misplaced
because the use of force in that case was dramatically
different from a single push in the back. Id. The
Defendants admit that Officer Abbott's alleged push of
Mr. Long “may have been unnecessary, but it was not
unreasonable.” Id. (citing
Fernandez-Salicrup, 790 F.3d at 327).
Supervisory Liability Claim Against Chief Sauschuck
the Defendants assert that the summary judgment record does
not support a claim of supervisory liability against Chief
Sauschuck. Defs.' Mot. at 11- 13. They contend
that there is no evidence that Chief Sauschuck directly
participated in the events on August 9, 2014, or that he was
deliberately indifferent in a manner that had “some
causal connection to the subsequent tort.” Id.
at 11-12 (citing Sanchez v. Pereira-Castillo, 590
F.3d 31, 49 (1st Cir. 2009)). In particular, the Defendants
claim that Chief Sauschuck was not aware of “any custom
or practice of the Portland police officers generally-or
Officer Abbott in particular-engaging in any of the
violations alleged by Mr. Long” or any
“deficiencies” in training, supervision, or
hiring that would cause the alleged violations. Id.
at 12. As such, the Defendants request the Court to enter
summary judgment on all claims against Chief Sauschuck.
Id. at 13.
to Mr. Long, on the other hand, Chief Sauschuck is liable as
a supervisor because he has “completely abdicated his
duty to supervise and train his officers in the field”
on the issue of probable cause. Pl.'s Resp. at
8-9. He asserts that Chief Sauschuck's deposition
testimony evidences a deliberate indifference to the
constitutional rights of the people with whom his officers
interact, and that “such deliberate indifference was
the moving force behind the constitutional violations
complained of in this case.” Id. at 9.
Therefore, Mr. Long contends that he may maintain his claims
against Chief Sauschuck under a theory of supervisory
liability. Mr. Long asserts no caselaw in support of his
reply, the Defendants assert that Mr. Long mischaracterizes
Chief Sauschuck's testimony. Defs.' Reply at
4. They repeat that “there is no evidence of deliberate
indifference on the part of Chief Sauschuck” and that
he was “not aware of any custom or practice of Portland
police officers generally-or Officer Abbott in
particular-engaging in any of the violations alleged by Mr.
Long.” Id. at 5.
Municipal Liability Claim Against the City of
Defendants explain that governmental entity liability under
42 U.S.C. § 1983 requires that the governmental entity
adhere to a policy or custom that causes the constitutional
violation at issue. Defs.' Mot. at 13 (citing
City of Canton, Ohio v. Harris, 489 U.S. 378, 385
(1989)). Moreover, the Defendants assert that “the
policy or custom must be the result of acts or omissions of
the municipality's policymakers that exhibit
‘deliberate indifference' to the rights of the
municipality's inhabitants.” Id. (quoting
City of Canton, 489 U.S. at 387-90). According to
the Defendants, Mr. Long provides no evidence of such
deliberate indifference, much less a policy, custom, or
practice that was the motivating force behind the alleged
violations. Id. at 14.
response, Mr. Long defends his claims against the city of
Portland on a theory of municipal liability. Pl.'s
Resp. at 10. In particular, Mr. Long asserts that Chief
Sauschuck is a policy-maker for the city of Portland whose
“policy of abdication and ignorance of the law”
was a moving force behind the alleged ...