United States District Court, D. Maine
DECISION AND ORDER ON DEFENDANTS' MOTION FOR
Brock Hornby United States District Judge
case involves law enforcement actions that occurred during
the arrest of Byron Manchester at his Casco home on November
19, 2013. Manchester and his former wife, Tara-Lee Campbell,
have alleged that detective Brian Ackerman and his fellow
Cumberland County Sheriff deputies applied excessive force to
both of them in violation of the Maine and United States
Constitutions, the Maine Civil Rights Act, 42 U.S.C. §
1983, and state tort law, or failed to intervene to prevent
the use of such force, and that the County has liability for
failing to train its officers. The defendants have moved for
summary judgment. Construing the facts in a light most
favorable to the plaintiffs, I conclude that the defendants
nevertheless are entitled to summary judgment on both
plaintiffs' state tort law claims, both plaintiffs'
claims that Cumberland County unconstitutionally failed to
train its deputies, and Byron Manchester's (but not
Tara-Lee Campbell's) claim of excessive force. However,
there are genuine issues of material fact on the excessive
force claims of Tara-Lee Campbell and the failure to
intervene claims of Byron Manchester. I therefore Grant the
defendants' motion in part, and Deny it in part.
November 19, 2013, the defendant Brian Ackerman, a detective
for the Cumberland County Sheriff's Office, along with
other law enforcement officers executed a search warrant on
the property of Byron Manchester and Tara-Lee Campbell.
See Defs.' Statement of Material Fact ¶ 1
(ECF No. 39) (Defs.' SMF); Pls.' Response to
Defs.' Statement of Material Facts ¶ 1 (ECF No. 44)
(Pls.' RSMF). The parties have presented considerably
different accounts of the events that night. According to the
plaintiffs, Ackerman was standing right next to Manchester as
a group of law enforcement officers, including Assistant Team
Leader Scott Jordan, Deputy Lucas Hallett, and John Fournier,
dragged Manchester from his home and held him down on the
ground. Pls.' RSMF ¶¶ 3- 4. Also according to
the plaintiffs, Ackerman dragged Campbell from her doorway
over rocks and gravel, through her yard, and into the
driveway. Pls.' RSMF ¶¶ 1-2.
to the defendants, Ackerman did not use any physical force on
either Manchester or Campbell during the execution of the
search warrant on November 19, Ackerman did not observe any
other officers use physical force on the plaintiffs,
Defs.' SMF ¶¶ 1-3, and neither Manchester nor
Campbell can identify Ackerman as the one who dragged them
across the ground or otherwise restrained them or stood by as
they were allegedly being subjected to excessive force,
Defs.' SMF ¶¶ 4-6.
amended complaint asserted the following causes of action:
(1) excessive force by Ackerman and failure to train by
Cumberland County in violation of the Maine Civil Rights Act,
5 M.R.S. § 4682; (2) state law assault and battery by
Ackerman under the Maine Tort Claims Act (MTCA), 14 M.R.S.
§ 8101; (3) Ackerman's failure to intervene to
prevent excessive force; and (4) excessive force by Ackerman
and failure to train by Cumberland County in violation of 42
U.S.C. § 1983. Pls.' First Am. Compl. (ECF No. 22).
The plaintiffs sought leave to file a second amended
complaint naming additional law enforcement officer
defendants and enlarging their legal theories of relief (ECF
No. 35), but I denied that motion in a written order (ECF No.
a Local Rule 56(h) Pre-Filing Conference (ECF No. 33), the
defendants moved for summary judgment (ECF No. 38).
1. Assault and Battery Claims Against Ackerman
MTCA provides that “[w]ithin 180 days after any claim
or cause of action permitted by this chapter accrues, or at a
later time . . . when a claimant shows good cause why notice
could not have reasonably been filed within the 180-day
limit, a claimant . . . shall file a written notice”
with the relevant governmental entity. 14 M.R.S. §
8107(1). A plaintiff cannot commence an action “against
a governmental entity or employee . . . unless the foregoing
notice provisions are substantially complied with.” 14
M.R.S. § 8107(4); Deschenes v. City of Sanford,
2016 ME 56, ¶ 12, 137 A.3d 198 (“[F]ailure to
comply with the notice provision bars the claim . .
.'” (quoting Cushman v. Tilton, 652 A.2d
650, 651 (Me.1995)).
plaintiffs do not dispute that neither Ackerman nor
Cumberland County was ever served with notice pursuant to 14
M.R.S. § 8107. Defs.' SMF ¶ 11; Pls.' SMF
¶ 11. Moreover, the plaintiffs do not argue that they
have shown “good cause why notice could not have
reasonably been filed within the 180-day limit.” 14
M.R.S. § 8107(1); Peters v. City of Westbrook,
2001 ME 179, ¶¶ 5-10, 787 A.2d 141. Because the
plaintiffs have not presented any arguments in opposition to
the defendants' motion for summary judgment on the state
law assault and battery claims or attempted to “tie
[their] allegations to a tangible theory of recovery, ”
they have waived any such arguments. Snyder v.
Collura, 812 F.3d 46, 51 (1st Cir. 2016), cert.
denied, 136 S.Ct. 2517 (2016).
result, the defendants are entitled to summary judgment on
Failure to Train Claims Against Cumberland County (Count One,
Maine Civil Rights Act; Count Four, 42 U.S.C. §
Supreme Court has ruled that “the inadequacy of police
training may serve as the basis for § 1983 liability
only where the failure to train amounts to deliberate
indifference to the rights of persons with whom the police
come into contact.” City of Canton, Ohio v.
Harris, 489 U.S. 378, 388 (1989). To succeed on a
failure to train claim against Cumberland County, the
plaintiffs must show that (1) the “failure to train
reflects a ‘deliberate' or ‘conscious'
choice by a municipality-a ‘policy, '”
Canton, 489 U.S. at 389, and (2) “the
deficiency in training actually caused” the excessive
force violation, id. at 391. The Supreme Court has
emphasized that “the focus must be on adequacy of the
training program in relation to the tasks the particular
officers must perform.” Id. at 390. In the
typical case, “the existence of a pattern of tortious
conduct by inadequately trained employees may tend to show
that the lack of proper training . . . is the ‘moving
force' behind the plaintiff's injury.” Bd.
of Cnty. Comm'rs of Bryan Cnty., Oklahoma v. Brown,
520 U.S. 397, 407-08 (1997) (quoting Canton, 489
U.S. at 389-91). In this case, the plaintiffs have advanced
no evidence of a “pattern of tortious conduct” by
Cumberland County deputies. But the Supreme Court has not
“foreclose[d] the possibility, however rare, that the
unconstitutional consequences of failing to train could be so
patently obvious that a city could be liable under §
1983 without proof of a pre-existing pattern of
violations.” Connick v. Thompson, 563 U.S. 51,
64 (2011). In Canton, for example, ...