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McKenney v. Mangino

United States District Court, D. Maine

April 12, 2017

VICKI MCKENNEY, individually, and as Next Friend of Stephen McKenney, and as Personal Representative of the Estate of Stephen McKenney, Plaintiff,


          Jon D. Levy U.S. DISTRICT JUDGE

         Plaintiff Vicki McKenney brings this action against Defendants Nicholas Mangino, Cumberland County, and the Town of Windham alleging claims arising out of the fatal shooting of her late husband, Stephen McKenney, by Mangino, a Deputy Sheriff employed by the Cumberland County Sheriff's Office.[1] ECF No. 3-2 at 1. Defendants have moved for summary judgment on all claims. ECF No. 43; ECF No. 45. For the reasons explained below, I grant the Town of Windham's motion to dismiss, and grant in part and deny in part Deputy Mangino and Cumberland County's motion to dismiss.


         On April 12, 2014, Windham Police Officers James Cook and Seth Fournier were dispatched to the McKenney residence in Windham, in response to Mrs. McKenney's call to the police indicating that her husband was possibly suicidal. Officers Cook and Fournier were advised by dispatch that Stephen wanted to shoot himself, that the residence contained multiple firearms that were not locked up, and that Stephen had become increasingly “physical” or “aggressive” with Mrs. McKenney.

         Officers Cook and Fournier arrived at the McKenney residence at approximately 6:20 a.m. and parked their cruisers in the driveway. Cumberland County Sheriff's Deputy Nicholas Mangino also responded to the residence to serve as backup to the Windham officers, arriving shortly after Cook and Fournier. Deputy Mangino had a civilian riding along with him in his cruiser at the time he responded to the call, though he did not advise the Windham officers of that fact. The civilian remained in Mangino's cruiser throughout the incident.

         Officers Cook and Fournier met Mrs. McKenney in the driveway and she informed them that her husband was emotionally disturbed and had “snapped” that morning after months of dealing with severe back pain. She also told the officers that the guns were located in a back bedroom, while her husband was in the front room, and that there was no one else in the house. There are two doors leading into the house: a front door and a door leading from the house into the garage. The overhead garage door was open when the officers arrived. The house is part of a condominium development, and is connected to an adjacent home.

         Approximately one minute after arriving at the house and speaking with Mrs. McKenney, the officers entered the house to make contact with Stephen. Officers Cook and Fournier entered through the door to the garage, while Deputy Mangino entered through the front door. Fournier was armed with a Taser, while Cook and Mangino carried their drawn service pistols. The officers announced their presence to Stephen by saying “police department” and requested him to “come out.” Approximately 30 seconds later, Stephen appeared on the far side of the living room from where the officers were taking cover behind a wall in the front hallway, approximately 12 or more feet from the officers. Stephen was holding an object in his right hand, and when asked by the officers what the object was, he replied “.357 Magnum.” The officers told Stephen to put the gun down, and told him that they wished to get him help. At this point, Officer Fournier holstered his Taser and drew his handgun, based on his belief that a Taser was not an appropriate response to the threat posed by Stephen's firearm. McKenney contends that the Taser would have been an appropriate response to the threat. Throughout the encounter inside the house, Officers Cook and Fournier kept their service pistols by their sides at the “low ready” position, and never aimed their firearms at Stephen. Stephen likewise never pointed his gun at any of the officers while inside the house.

         The officers decided to back out of the house, and Officer Cook told Stephen that they were “going to go outside” and would call him. The officers left the house through the door to the garage and met Mrs. McKenney, who was waiting outside. As the officers left the house, Deputy Mangino headed down the driveway to his cruiser and advised the others that he was going to get his long gun. Cook directed Officer Fournier to put Mrs. McKenney in his cruiser and take her away for her safety. Mrs. McKenney was distraught and in tears. Approximately 10 seconds after the officers left the house, Officer Fournier was escorting Mrs. McKenney to his cruiser when he observed Stephen in the doorway leading from the house to the garage and alerted the other officers to Stephen's presence. Fournier then put Mrs. McKenney in his cruiser, backed out of the driveway, and drove to a cul-de-sac at the end of the street, a few hundred yards from the McKenney residence. From this location, Fournier was the only officer on the scene who had a view into the McKenneys' garage.

         At this point, Officer Cook had retreated behind the McKenneys' house and Deputy Mangino had taken cover behind his cruiser, which was parked at the end of the driveway away from the house. Officer Fournier could see Stephen throughout the incident. From his position behind his cruiser, Deputy Mangino could see Stephen at times, but also relied on Fournier to relay information about Stephen's location. The civilian in Mangino's cruiser remained crouched down in the front seat throughout the incident. Officer Cook was dependent upon Fournier to relay information about Stephen's location and activities. Shortly after the officers left the house, Sergeant James Boudreau of the Windham Police was dispatched to the scene, in response to a request from Officer Cook. Cook also informed Fournier that he was to transport Mrs. McKenney away from the scene as soon as another unit arrived to replace him.

         Approximately two minutes after the officers left the inside of the McKenney residence, Officer Fournier saw Stephen, who was still holding his handgun, come out of the house and head in the direction of Officer Cook, who was at the rear of the building. Fournier radioed to Cook and told him that Stephen was “heading right toward you.” At this time Officer Cook, who was behind the building, did not know the exact location of either Deputy Mangino or Stephen, but heard Mangino yell three times at Stephen to “drop the gun.” The parties agree that Stephen had a vacant stare and acted as though he had not received or acknowledged the commands to drop the gun. ECF No. 61 at 12, ¶ 62. For the next two to three minutes, Stephen walked around in the driveway in the vicinity of Officer Cook's cruiser and the garage area, and he entered and exited the house several times. It is disputed whether, as the Town of Windham claims, this forced Officer Cook to retreat further to the rear of the building to avoid being seen by Stephen. During this time, Officer Fournier kept Mangino and Cook apprised of Stephen's location and activities, including at one point telling Deputy Mangino to “stay down, he's looking right at you.” At one point, Stephen pointed his gun up into the air, and Deputy Mangino asserts that he thought Stephen was pointing the gun at him. Mangino said he wanted to move his cruiser from its position on the street in front of the residence, but Fournier advised him to “hold tight, he's back at the front of the garage.” Officer Cook retreated further along the back of the house to the adjacent street, where he met with Sergeant Boudreau and Sergeant Marc Marion of the Cumberland County Sheriff's Office, who arrived at the scene approximately five minutes after the officers had first exited the house. Their position on the adjacent street did not afford them a view of Deputy Mangino, Officer Fournier, or Stephen, so Cook explained where each person was located. Shortly thereafter, Windham Police Officer Ernest MacVane arrived at the scene, and was directed by Sergeant Boudreau to block traffic on the adjacent street to prevent any vehicle from accessing the street where the McKenney house was located.

         Officer Fournier continued to apprise the other officers of Stephen's location and activities. He also spoke with Mrs. McKenney, who was still in his cruiser, about the police wanting to make phone contact with Stephen, and conveyed the phone number she provided to Officer Cook. Approximately one and a half minutes after Cook met with Sergeants Boudreau and Marion on the adjacent street, Officer Fournier reported that Stephen was right inside the front of the garage. Thirty seconds later, Fournier radioed to Deputy Mangino and said “I can't tell, but he might be pointing that, ” and told Mangino to be careful. Thirty seconds after that, Fournier observed Stephen walking down the driveway in the direction of Deputy Mangino's cruiser, as Mangino continued to crouch on the opposite side of his vehicle and the civilian continued to crouch in the front seat. Throughout this time, Deputy Mangino had his rifle aimed at Stephen.

         Officer Fournier radioed Deputy Mangino that Stephen was “walking toward your car right now.” As Stephen was walking down the driveway, he had a vacant stare and appeared to be “not at home” mentally. ECF No. 61 at 15, ¶ 75. He walked down the driveway in a nonchalant manner, and held his handgun dangling at his side. Id. at 15, ¶ 77. Stephen did not raise his gun or point it in the direction of Mangino's cruiser; nor did he make any sudden or evasive movements. Id. at 15, ¶¶ 78-80. Approximately six minutes had elapsed since Stephen raised the gun above his head by the garage, and Deputy Mangino thought that Stephen pointed the gun at him. It had also been approximately six minutes since Deputy Mangino ordered Stephen three times to drop his gun. ECF No. 61 at 16-17, ¶¶ 86, 88.[2]

         Officer MacVane, who had parked his cruiser on the adjacent street to block traffic, took his patrol rifle and began walking between houses toward Deputy Mangino's cruiser. As he approached, Officer MacVane saw Stephen walking from his home and down the driveway in the direction of Mangino's cruiser. MacVane was approximately 100 feet from Stephen at this time. Because Stephen continued to walk in the direction of the cruiser, Officer MacVane believed that Stephen was going to kill Deputy Mangino. McKenney contends that this belief was not reasonable. When Stephen was approximately halfway down the driveway, Officer MacVane stopped walking and aimed his patrol rifle at Stephen. At the same time, Deputy Mangino came around to the front of his vehicle and fired his rifle two times in quick succession at Stephen, who fell to the ground. The first shot missed Stephen, but the second shot struck him in the head and killed him. Stephen's gun remained at his side at the time he was shot.

         To summarize the events leading up to the shooting, after the officers spoke with Stephen inside and then left the McKenney residence, they first saw Stephen in the doorway leading to the garage at approximately 6:24 a.m. They observed Stephen walk in and out of his house and around the driveway for approximately seven and a half minutes, between 6:24 a.m. and 6:32 a.m. At approximately 6:26 a.m., Deputy Mangino yelled at Stephen three times and ordered him to drop his gun. A few seconds later, Mangino observed Stephen raise the gun over his head, and thought Stephen was pointing the gun at him. Approximately five minutes later, at 6:31 a.m., Officer Fournier radioed to Deputy Mangino and said “I can't tell, but he might be pointing that.” At 6:31:30 a.m., Stephen began walking down the driveway in the direction of Deputy Mangino's cruiser. Deputy Mangino testified that Stephen was walking nonchalantly, and held his gun dangling down by his side. Stephen did not make any sudden movements or point the gun in the direction of Mangino's cruiser. At 6:31:41 a.m., Deputy Mangino fired two shots at Stephen, hitting him once and killing him. At the moment he was shot and killed, Stephen was 69 feet away from Deputy Mangino.

         Officer MacVane approached Stephen as he lay on the ground and observed that he had a firearm in his right hand. MacVane asserts that the gun was cocked and loaded, but McKenney contends that the gun was not cocked. Stephen was in lawful possession of his gun at all times leading up to the shooting. Officer MacVane removed the gun from Stephen's hand, handcuffed him, and then rolled him over so he could begin resuscitative efforts, but quickly realized the shooting was fatal. Approximately ten minutes elapsed between the time the officers first arrived on the scene, and when Deputy Mangino shot Stephen.


         The Complaint[3] asserts a total of ten claims against Defendants: (1) violation of the Fourth Amendment's prohibition on use of excessive force, under 42 U.S.C. § 1983; (2) violation of the Maine Civil Rights Act, 5 M.R.S.A. § 4682; (3) violation of the Fourteenth Amendment's due process guarantee, under § 1983;[4] (4) negligence, based on violation of the duty to protect; (5) violation of the Fourth Amendment for failure to train law enforcement officers, under § 1983; (6) violation of the Americans with Disabilities Act;[5] (7) assault; (8) intentional infliction of emotional distress; (9) negligent infliction of emotional distress; and (10) wrongful death under 18-A M.R.S.A. § 2-804. ECF No. 3-2. Defendants have moved for summary judgment on all claims. ECF No. 43; ECF No. 45.

         A. Summary Judgment Standard

         Summary judgment is appropriate only if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). In making that determination, a court must view the evidence in the light most favorable to the non-moving party. Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013). “[A] judge's function at summary judgment is not to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (citations and quotations omitted).

         Local Rule 56 defines the evidence that this court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment. First, the moving party must file a statement of material facts that it claims are not in dispute, with each fact presented in a numbered paragraph and supported by a specific citation to the record. See Loc. R. 56(b). Second, the non-moving party must submit its own short and concise statement of material facts in which it admits, denies, or qualifies the facts alleged by the moving party, making sure to reference each numbered paragraph of the moving party's statement and to support each denial or qualification with a specific citation to the record. Loc. R. 56(c). The non-moving party may also include its own additional statement of facts that it contends are not in dispute. Id. These additional facts must also be presented in a numbered paragraph and be supported by a specific citation to the record. Id.

         Third, the moving party must then submit a reply statement of material facts in which it admits, denies, or qualifies the non-moving party's additional facts, if any. Loc. R. 56(d). The reply statement must reference each numbered paragraph of the non-moving party's statement of additional facts and each denial or qualification must be supported by a specific citation to the record. Id.

         The court may disregard any statement of fact that is not supported by a specific citation to the record, Loc. R. 56(f), and the court has “no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts.” Id.; see also, e.g., Packgen v. BP Exploration, Inc., 754 F.3d 61, 70 (1st Cir. 2014); Fed.R.Civ.P. 56(e)(2). Properly supported facts that are contained in a statement of material or additional fact are deemed admitted unless properly controverted. Loc. R. 56(f).

         B. Claims against the Town of Windham

         1. Claims under § 1983 and the Maine Civil Rights Act

         McKenney asserts that the Town of Windham's conduct during the incident that led to her husband's death violated the Fourth Amendment to the United States Constitution, as well as the Maine Civil Rights Act, 5 M.R.S.A. § 4682 et seq. ECF No. 3-2 at 6-12. Windham asserts that there is no basis for liability on the part of the Town in the evidentiary record and that it is entitled to summary judgment in its favor.

         As an initial matter, I note that the outcome of McKenney's claim under the Maine Civil Rights Act will follow from the disposition of the federal constitutional claims under 42 U.S.C.A. § 1983. Berube v. Conley, 506 F.3d 79, 85 (1st Cir. 2007) (“The disposition of a 42 U.S.C. § 1983 claim also controls a claim under the MCRA.”). I therefore address the § 1983 claims first.

         Count I of McKenney's Complaint alleges that the Defendants violated Stephen's Fourth Amendment rights by using excessive force against him. It is undisputed that the only physical force applied to Stephen by any Windham officer occurred after the shooting, when Officer MacVane handcuffed Stephen and removed the gun from his hand. See ECF No. 51 at 7, ¶¶ 74-75. For liability to attach to Windham, McKenney must show that one of the Windham officers violated Stephen's constitutional rights. See Wilson v. Town of Mendon, 294 F.3d 1, 6 (1st Cir. 2002) (“If, however, the officer has inflicted no constitutional harm, neither the municipality nor the supervisor can be held liable.”).

         Viewed in the light most favorable to the Plaintiff, there is no factual basis in the record for finding that any of the Windham officers used excessive or unreasonable force against Stephen. The only force used by a Windham officer was when Officer MacVane handcuffed Stephen, removed his gun from his hand, and turned him over to begin resuscitative efforts. ECF No. 51 at 7, ¶ 75. The actions taken by Officer MacVane do not rise to the level of excessive force required to violate the Fourth Amendment. See Fernández-Salicrup v. Figueroa-Sancha, 790 F.3d 312, 327 (1st Cir. 2015) (finding no excessive force where officer, pursuant to “standard police practice, ” shoved suspect against wall and handcuffed her).

         Based on the foregoing, the Town of Windham is entitled to summary judgment on Count I of the Complaint.

         Count V of the Complaint asserts a failure to train claim against Windham under the Fourth Amendment. ECF No. 3-2 at 10-12. McKenney contends that Windham's failure to adequately train its officers amounted to deliberate indifference to the rights of the persons with whom the officers came into contact. ECF No. 52 at 8. It is established, however, that “the inadequate training of a police officer cannot be a basis for municipal liability under section 1983 unless a constitutional injury has been inflicted by the officer or officers whose training was allegedly inferior.” Calvi, 470 F.3d at 429. As discussed above, the undisputed facts establish that none of the Windham officers violated Stephen's constitutional rights. Thus, because the Town of Windham cannot be liable on a failure-to-train theory, it is entitled to summary judgment on Count V of the Complaint.

         As mentioned above, McKenney's claim asserted in Count II under the Maine Civil Rights Act is controlled by the outcome of her § 1983 claims. See Berube, 506 F.3d at 85. Because I conclude that the Town of Windham is entitled to summary judgment on the ยง 1983 claims asserted ...

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