SETH T. CAREY, Plaintiff,
v.
MAINE BOARD OF OVERSEERS OF THE BAR, et al., Defendants.
ORDER ON MOTIONS TO DISMISS & M.R. CIV. P. SOC
APPEAL OF ADMINISTRATIVE ACTION
WILLIAM R. ANDERSON, JUSTICE, MAINE SUPERIOR COURT
Contents
of Order
BACKGROUND............................................................................................................................1
I.
Timeline of Underlying Disciplinary Proceedings Against
Plaintiff..................................3
LEGAL
STANDARD.....................................................................................................................5
MOTIONS
TO
DISMISS...............................................................................................................9
I.
State
Defendants.................................................................................................................9
A. Tort
Claims.....................................................................................................................9
1.
Governmental
Entities................................................................................................9
2.
Governmental Employee
Immunity..........................................................................12
a. BBO
Defendants' Motion to
Dismiss...................................................................16
i.
Discretionary Function
Immunity.....................................................................18
ii.
Prosecutorial
Immunity.....................................................................................22
iii.
Conclusion........................................................................................................25
b.
Judicial Defendants' Motion to
Dismiss...............................................................25
i.
Jurist Defendants (Judge Nancy Carlson, Judge Maria Woodman,
Justice Lance
Walker)...................................................................26
ii.
Administrative Defendants (Elizabeth Maddaus, Laureen Pratt,
Darlene
Richards)............................................................................30
c.
MCILS Defendant John Pelletier's Motion to
Dismiss........................................32
d.
Statements During BBO Proceedings by Judge Carlson, Judge
Woodman, Justice Walker, Elizabeth Maddaus, Laureen Pratt,
Darlene Richards, and John Pelletier
...............................................................................................................................36
e.
Conclusion............................................................................................................40
B.
Non-Tort
Claims...........................................................................................................41
1.
MUTPA and
RICO...................................................................................................41
2.
Plaintiffs M.R. Civ. P. 80C Appeal of Administrative
Action................................46
3.
Counts XXIII and XXIV (Requests for Declaratory
Judgment)..............................49
II. Dr.
Donovan's Motions to
Dismiss..................................................................................49
A. Dr.
Donovan's Special Motion to Dismiss First Amended
Complaint Pursuant to 14 M.R.S.A.
§556..................................................50
B. Dr.
Donovan's Motion to Dismiss Pursuant to Rule
12(b)(6)......................................56
III.
The Journal's Motion to
Dismiss......................................................................................56
A.
Background...................................................................................................................56
B.
Legal
Discussion...........................................................................................................58
1.
Counts That Clearly Do Not Apply to the
Journal...................................................58
2.
Publication
Counts....................................................................................................58
a.
Negligence, Defamation and Violation of
Privacy...............................................59
i.
Negligence and
Defamation..............................................................................59
ii.
Violation of
Privacy..........................................................................................60
3.
RICO.........................................................................................................................61
4.
Remaining
Counts.....................................................................................................63
Order
Presently
before the Court in this matter are the Motions to Dismiss
pursuant to M.R. Civ. P. 12(b) filed by the following
parties: (1) the Maine Board of Overseers of the Bar
("BBO"), Bar Counsel J. Scott Davis, Deputy Bar
Counsel Aria Eee, and Jacqueline M. Rogers (collectively, the
"BBO Defendants"); (2) Judge Maria Woodman, Judge
Nancy Carlson, Justice Lance Walker, the Maine District
Court, the Office of Clerk of Courts, the Maine Commission on
Indigent Legal Services ("MCILS"), Clerk Darlene
Richards, Clerk Laureen Pratt, Director John Pelletier, and
Manager Elizabeth Maddaus (collectively, the
"Judicial/MCILS Defendants"); (3) Matthew Donovan,
M.D. ("Dr. Donovan"); and (4) the Lewiston Sun
Journal (the "Journal"). Dr. Donovan also filed a
Special Motion to Dismiss First Amended Complaint Pursuant to
14 M.R.S.A. § 556. Separately, Plaintiff filed a M.R.
Civ. P. 80C Appeal of Administrative Action.
BACKGROUND
Plaintiff
Seth T. Carey-a licensed member of the Maine Bar-filed a
complaint on January 17, 2017, against the Defendants listed
above. Before any parties filed responsive pleadings, and in
conformity with M.R. Civ. P. 15(a), Plaintiff filed a First
Amended Complaint ("FAC") on February 3, 2017. The
claims in Plaintiffs FAC generally arise out of the
Defendants' involvement in relation to a November 21,
2016, disciplinary Order-and the various interactions and
stages of the BBO proceedings leading up to it-issued by a
single Justice appointed by the Supreme Judicial Court
pursuant to M. Bar R. 13(g) regarding Plaintiffs conduct as
an attorney.
Plaintiff
asserts the following claims in his FAC: Count I
(Negligence); Count II (Negligence); Count III (Negligence
& Abuse of Process); Count IV (Invasion of Privacy &
Disclosure); Count V (Defamation & False Light); Count VI
(Malicious Prosecution); Count VII[1] (Malicious Prosecution &
Abuse of Process); Count VIII (Fraud Upon the Court); Count
IX (Misrepresentation); Count X (Conspiracy); Count XI
(Malicious Prosecution, Negligence, Abuse of Process); Count
XII (Tortious Interference with Prospective and Actual
Economic Advantage, Tortious Interference with Contractual
Relations); Count XIII (Violation of Maine Unfair Trade
Practices Act ("MUTPA")); Count IXX[2] [sic] (Negligent
Infliction of Emotional Distress); Count XX (Intentional
Infliction of Emotional Distress); Count XXI[3] (Violation of
Racketeer Influenced and Corrupt Organizations Act
("RICO")); Count XXII (M.R. Civ. P. 80C Appeal of
Administrative Action); Count XXIII (Declaratory Judgment);
Count XXIV (Declaratory Judgment); Count XXV (Invasion of
Privacy-False Light); Count XXVI (Punative [sic] Damages);
Count XXVII (Retraining [sic] Order); and, Count XXVIII
(Attorneys [sic] Fees).
On an
initial note, Plaintiffs Counts XXVI (Punative [sic] Damages)
and XXVII (Attorneys [sic] Fees) are not substantive but are
properly brought as part of a damages request. These counts
are dismissed. Further, Plaintiffs Count XXVII (Retraining
[sic] Order) is discussed in Motions to Dismiss Section
III(B)(4), infra, because it is clear from
Plaintiffs FAC that Count XXVII is directed solely at the
Journal and does not apply to other Defendants. Although
Count XXII does not necessarily specify which Defendants it
is pleaded against in the way that other Counts do, it is
clear Count XXII deals solely with MCILS' affirmation of
John Pelletier's decision to remove Plaintiff from the
MCILS' roster of attorneys. Thus, Count XXII is not
considered against other Defendants because it clearly does
not apply to them. The specific Counts addressed in this
paragraph are not discussed in this Order with respect to
Defendants they clearly do not apply to, except to the extent
necessary to clarify any aspect of the Order.
All
Defendants moved to dismiss Plaintiffs FAC. The BBO
Defendants and Judicial/MCILS Defendants based their
respective Motions to Dismiss on both governmental immunity
provided by the Maine Tort Claims Act ("MTCA"), 14
M.R.S. §§ 8101-8118 (2016), and failure to state a
claim upon which relief could be granted.[4] Plaintiff has not
objected to the assertion of governmental immunity at this
stage and has instead addressed the issue on the merits.
Because Plaintiffs FAC is rich with factual detail describing
what the BBO Defendants, Judicial Defendants, and MCILS
Defendants allegedly did to harm Plaintiff, the Court finds
this to be one of the rare instances in which it is
appropriate to address the issue of governmental immunity at
the M.R. Civ. P. 12(b)(6) stage. See Bussell v. City of
Portland, 1999 ME 103, ¶ 2, 731 A.2d862.
All
told, due to the number of Defendants and the number of civil
claims for damages asserted against each Defendant,
Plaintiffs FAC contains 224 individual counts which the Court
must address in this Order.
I.
Timeline of Underlying Disciplinary Proceedings Against
Plaintiff[5]
Because
Plaintiffs FAC does not provide a coherent chronology of the
events complained of, the Court has constructed this timeline
based on Plaintiffs FAC and the various orders issued during
the BBO proceedings against Plaintiff which form the basis of
this lawsuit. On December 14, 2014, Maria Woodman-a Family
Law Magistrate at the time-filed a complaint with the BBO
regarding her concerns about Plaintiffs competence as an
attorney based on his appearances before her. (Pl's Amnd.
Compl. ¶¶ 70-75, 88-106; GC Order 1; J. Brennan
Order 2.) In May 2015, Dr. Donovan filed a grievance
complaint with the BBO against Plaintiff wholly independent
from Judge Woodman's based on his interactions with
Plaintiff during a Maine Workers' Compensation Board
proceeding in which Plaintiff represented the claimant.
(Pl's Amnd. Compl. ¶¶ 196-216; J. Brennan Order
3.) Pursuant to M. Bar R. 13(d)(6), Bar Counsel J. Scott
Davis brought Dr. Donovan's grievance directly to a
Single Justice of the Supreme Judicial Court because it was
filed during the pendency of an already-existing disciplinary
proceeding against Plaintiff, i.e., the one based on Judge
Woodman's grievance complaint. (J. Brennan Order 3 n.2.)
On June
19, 2015, the BBO brought a disciplinary petition against
Plaintiff to a panel of the Grievance Commission of the BBO.
(GC Order 1.) The Grievance Commission conducted a public
hearing in late 2015 pursuant to M. Bar R. 13(e)(7), which
spanned the dates of September 17-18, October 19, and
November 20. (Pl's Amnd. Compl. ¶ 18; GC Order 1.)
Before the Grievance Commission issued its Order, legal
counsel for Bangor Savings Bank- with whom Plaintiff
maintained his IOLTA account-filed a grievance complaint
against Plaintiff on January 25, 2016, alleging misuse of the
account. (Pl's Amnd. Compl. ¶ 76; J. Brennan Order
7.) Similar to Dr. Donovan's grievance complaint, Bar
Counsel brought Bangor Savings Bank's grievance directly
to a Single Justice of the Supreme Judicial Court pursuant to
M. Bar R. 13(d)(6). (J. Brennan Order 7 n.3.) When the
Grievance Commission finally issued its Order on February 2,
2016, it sanctioned Plaintiff with a public reprimand for
violating M.R. Prof. Conduct 1.1. (GC Order 6.) The Grievance
Commission imposed probation against Plaintiff with
particular requirements Plaintiff was to comply with. (GC
Order 7.)
On
March 7, 2016, Justice Gorman granted Plaintiffs request for
a stay in the matter and temporarily relieved Plaintiff from
having to comply with the requirements of the Grievance
Commission's Order. (J. Gorman Interim Order 1.) However,
on May 18, 2016, Justice Gorman found probable cause that the
disciplinary proceeding against Plaintiff could result in
suspension or disbarment and directed Bar Counsel to file an
Information and proceed as an attorney discipline action
pursuant to M. Bar R. 13(g). (J. Gorman Order to File 1.) The
result of that attorney discipline action was Justice
Brennan's November 21, 2016, Order.
LEGAL
STANDARD
When
deciding a motion to dismiss pursuant to M.R. Civ. P.
12(b)(6), [6] "all well-pleaded material
allegations are taken as admitted and construed in the light
most favorable to the plaintiff." Vahlsing Christina
Corp. v. Stanley, 487 A.2d 264, 267 (Me. 1985) (emphasis
added). While the Court must accept as true all well-pleaded
factual allegations in the complaint, it is "not bound
to accept the complaint's legal conclusions."
Bowen v. Eastman, 645 A.2d 5, 6 (Me. 1994) (citing
Robinson v. Wash. Cty., 529 A.2d 1357, 1359 (Me.
1987)).
In
order for dismissal of a complaint for failure to state a
claim to be proper, "it must appear 'beyond doubt
that [the] plaintiff is entitled to no relief under any set
of facts that might be proven in support of the
claim.'" Dragomir v. Spring Harbor Hosp.,
2009 ME 51, ¶ 15, 970 A.2d 310 (quoting
Plimpton v. Gerrard, 668 A.2d 882, 885 (Me. 1995)).
A motion to dismiss tests the legal sufficiency of the
complaint, and is a pure question of law. Persson v.
Dep't of Human Servs., 2001 ME 124, ¶ 8, 775
A.2d 363; In re: Wage Payment Litig. v. Wal-Mart Stores,
Inc., 2000 ME 162, ¶ 3, 759 A.2d 217. A complaint
only needs to consist of a short and plain statement of the
claim to provide fair notice of the cause of action.
Johnston v. Me. Energy Recovery Co., Ltd.
P'ship, 2010 ME 52, ¶ 16, 997 A.2d 741. While
Maine is a notice pleading state, that does not mean a
plaintiff could "proceed on a cause of action if that
party's complaint has failed to allege facts that, if
proved, would satisfy the elements of the cause of
action." Burns v. Architectural Doors &
Windows, 2011 ME 61, ¶¶ 16-17, 19 A.3d 823.
Thus, the plaintiff must "allege facts sufficient to
demonstrate that [he] has been injured in a way that entitles
him or her to relief"[7] Id. ¶ 17.
On a
motion to dismiss for failure to state a claim, the Court
generally cannot consider documents outside the pleadings
without treating the motion as one for summary judgment.
See M.R. Civ. P. 12(b); see also Moody v. State
Liquor & Lottery Comm'n, 2004 ME 20, ¶ 8,
843 A.2d 43. However, the Court can consider "official
public documents, documents that are central to the
plaintiffs claim, and documents referred to in the complaint
. . . when the authenticity of such documents is not
challenged." Id. ¶ 11 When the Court does
consider such documents, those documents merge into the
pleadings. Id. ¶ 10.
The BBO
Defendants, the Judicial/MCILS Defendants, and Dr. Donovan
each attached one such document to their respective Motions
to Dismiss-and the Journal directed the Court to the same
document-which the Court has considered in its determinations
on the numerous dismissal motions. That document is the Order
issued by Justice Brennan on November 21, 2016, in Plaintiffs
underlying disciplinary proceeding before the BBO ("J.
Brennan Order"). See Bd. of Overseers of the Bar v.
Carey, BAR-16-15 (Nov. 21, 2016) (Brennan, A.R.J.). The
Court believes this fits within the Moody exception
for several reasons.
First,
it was issued during the pendency of a disciplinary action
against a licensed attorney pursuant to the Maine Bar Rules,
which are promulgated by the head of the Judicial Branch-the
Supreme Judicial Court of Maine. See 4 M.R.S.
§§ 1-58 (2016). Specifically, "[t]he Supreme
Judicial Court has general administrative and supervisory
authority over the judicial branch and shall make and
promulgate rules, regulations and orders governing the
administration of the judicial branch." Id.
§ 1. The Supreme Judicial Court also has "inherent
authority ... to regulate attorney conduct, " which it
has done through the official Maine Bar Rules. M. Bar R.
Preamble. Second, the document is disseminated publicly.
See M. Bar R. 19. It is maintained on the BBO's
public website, accessible by any member of the public who
wishes to view it.[8] See Bd. of Overseers of the Bar v.
Seth T. Carey, Esq., Order, M. Bar R. 13(g), Board of
Overseers of the Bar (Nov. 21, 2016),
http://www.mebaroverseers.org/dah_schedule/decisions.html?id=722117.
The BBO maintains this information on its website because it
is required by the Maine Bar Rules to "inform the public
about the existence and operation of the system and the
disposition of each matter in which public discipline has
been imposed . . . ." M. Bar R. 1(h)(7). Third, it is
central to Plaintiffs claims because many of his allegations
stem from the underlying disciplinary proceeding and the
various parties involved, and this document represents the
culmination of that proceeding. Lastly, Plaintiff has
knowledge of the contents of this document because he
consented to its entry, and he has not challenged the
document's authenticity.
Because
the Court is considering the aforementioned document in
deciding these Motions to Dismiss and it fits within the
categories detailed in Moody, it is deemed merged
into the pleadings. See Moody, 2004 ME 20, ¶
10, 843 A.2d 43.
Further,
there are several other documents from the underlying
disciplinary proceeding before the BBO-while not attached to
the Motions to Dismiss-of which the Court takes judicial
notice. See M.R. Evid. 201(b)(2) (courts may take
judicial notice of facts which "[c]an be accurately and
readily determined from sources whose accuracy cannot
reasonably be questioned); see also King v. King,
2013 ME 56, ¶ 4 n.1, 66 A.3d 593 (where the Law Court
took "judicial notice of the dockets of the U.S.
District Court for the District of Maine and the U.S. Court
of Appeals for the First Circuit. See Guardianship of
Jewel M., 2010 ME 80, ¶ 24, 2 A.3d 301 (stating
that a court may take judicial notice of pleadings and docket
entries in other cases)").[9]
First
is the Report of Findings and Order of Panel C of the
Grievance Commission ("GC Order"). See Bd. of
Overseers of the Bar v. Carey, GCF-14-529 (Feb. 2,
2016), but not for the purpose of adopting the evidence
presented with regard to any allegations against Mr. Carey.
Second is the Interim Order issued by Justice Gorman which
stayed the Grievance Commission's Report of Findings and
Order ("J. Gorman Interim Order"). See Bd. of
Overseers of the Bar v. Carey, BAR-16-8 (Mar. 7, 2016)
(Gorman, J.). Last is the Order issued by Justice Gorman
directing Bar Counsel to file information with the Court and
for the matter to be conducted as an attorney discipline
action pursuant to M. Bar R. 13(g) ("J. Gorman Order to
File"). See Bd. of Overseers of the Bar v.
Carey, BAR-16-8 (May 18, 2016) (Gorman,
J.).[10]
MOTIONS
TO DISMISS
I.
State Defendants A. Tort Claims
1.
Governmental Entities
The
common law of sovereign immunity in Maine "has been
entirely displaced and supplanted by the enactment of the
[MTCA]." Moore v. City of Lewiston, 596 A.2d
612, 614 (Me. 1991) (citing Darling v. Augusta Mental
Health Inst., 535 A.2d 421, 424 (Me. 1987)).
Accordingly, "[e]xcept as otherwise expressly provided
by statute, all governmental entities shall be immune from
suit on any and all tort claims seeking recovery of
damages." 14 M.R.S. § 8103(1) (2016). Under the
MTCA, a '"[g]overnmental entity' [is] the State
. . . [which includes] the State of Maine or any office,
department, agency, authority, commission, board,
institution, hospital or other instrumentality of the
State." Id. §§ 8102(2), (4).
Practically
speaking, the MTCA provides governmental entities with a
broad grant of immunity from tort claims, subject to specific
statutory exceptions. See Darling, 535 A.2d at 424.
Through the MTCA, the State has only waived immunity for its
negligent operation of vehicles, negligent building and road
construction and maintenance, and negligent discharge of
pollutants, as well as "to the limits of the insurance
coverage" when the State purchases liability insurance
for coverage in areas in which it would normally be immune.
See 14 M.R.S. §§ 8104-A, 8116. When a
governmental entity has not waived the immunity granted by
the MTCA through the purchase of liability insurance,
"the governmental entity against whom a claim is made
bears the burden of establishing that it does not have
insurance coverage for that claim." Danforth,
667 A.2d at 848. Governmental immunity can successfully be
used in a motion to dismiss only when "the complaint
contains within its four corners allegations of sufficient
facts to show the existence and applicability of the
immunity." Id. When the "absence
of liability insurance is not apparent from [the plaintiffs]
complaint, " dismissal pursuant to M.R. Civ. P. 12(b)(6)
is not proper. Id.
It is
readily apparent that the BBO, the Maine District Court, the
Office of Clerk of Courts, and MCILS are governmental
entities within the meaning of the MTCA. The BBO is an
attorney disciplinary board established by the Maine Bar
Rules promulgated by the Supreme Judicial Court, the Maine
District Court is an arm of the State of Maine
Judicial Branch, the Office of Clerk of Courts is a part of
the legislatively-created Administrative Office of the Courts
and part of the Judicial Branch, and MCILS is a
legislatively-created commission. Each governmental entity
Defendant is covered by the provisions of the MTCA. 14 M.R.S.
§§ 8102(2), (4). Thus, they are immune unless that
immunity has been waived. See Darling, 535 A.2d at
424.
Plaintiff
has not alleged any facts that the governmental entities
themselves have waived the broad immunity granted to them
under the MTCA (i.e., he has not alleged any of the subject
entities engaged in any negligent operation of vehicles,
negligent building and road construction and maintenance, or
negligent discharge of pollutants). Because of this, the only
way Plaintiff could potentially recover from the entities is
if any of the entities maintains insurance coverage in areas
for which they would otherwise be immune under the MTCA.
While the BBO and Judicial/MCILS Defendants attached a
"Statement Relating to Self-Insurance Pursuant to 14
M.R.S.A. § 8116" to their respective Motions to
Dismiss in an attempt to show the entities do not maintain
liability insurance in areas they would otherwise be immune,
these cannot be dispositive of the issue at this stage in the
proceeding because the absence of liability insurance is not
apparent from Plaintiffs FAC. See Danforth, 661 A.2d
at 848. This document is not being accepted as a
Moody exception because it is not particularly clear
what it is and whether it was prepared for litigation
purposes.
However,
because the BBO and Judicial/MCILS Defendants have provided
the Court with this information, this is a proper
circumstance in which to convert the Motions to Dismiss filed
by the governmental entities to motions for summary judgment.
See M.R. Civ. P. 12(b) (When "matters outside
the pleading are presented to and not excluded by the court,
the motion shall be treated as one for summary judgment and
disposed of as provided in Rule 56, and all parties shall be
given reasonable opportunity to present all material made
pertinent to such a motion by Rule 56."). This is a
straightforward issue: either the governmental entities here
have procured insurance for areas in which they are immune or
they have not.
The
Court ORDERS the BBO, the Maine District Court, the Office of
Clerk of Courts, and MCILS to file all material-including
supporting affidavits-required by M.R. Civ. P. 56 and M.R.
Civ. P. 7 within twenty-one days of the date of this order.
Subsequent briefing shall proceed pursuant to the time limits
established in M.R. Civ. P. 7. Only the portions of the
Motions to Dismiss filed by these entities which are directed
at the state law tort claims from which these entities may
immune pursuant to the MTCA are converted to motions for
summary judgment. These entities' Motions to Dismiss with
respect to non-tort claims will still be discussed in the
subsequent sections as necessary.
2.
Governmental Employee Immunity
Because
the BBO and Judicial/MCILS employee-Defendants asserted
governmental employee immunity as a defense, the relevant
legal background is provided first in order to avoid
repeating it extensively throughout this Order. Whereas Maine
governmental entities are granted the broad immunity
discussed above, "liability is the rule and immunity the
exception" when it comes to employees of governmental
entities. Day's Auto Body, Inc. v. Town of
Medway, 2016 ME 121, ¶ 20, 145 A.3d 1030. Under the
MTCA, an employee is defined as "a person acting on
behalf of a governmental entity in any official capacity,
whether temporarily or permanently, and whether with or
without compensation from local, state or federal funds,
including elected or appointed officials . . . ." 14
M.R.S. § 8102(1). Among other immunities provided in the
MTCA, employees of governmental entities are absolutely
immune from liability for "[undertaking or failing to
undertake any judicial or quasi-judicial act, "
id. § 8111(1)(B), "[p]erforming or failing
to perform any discretionary function or duty, whether or not
the discretion is abused, " id. §
8111(1)(C), and "[p]erforming or failing to perform any
prosecutorial function involving civil, criminal or
administrative enforcement..., " id. §
8111(1)(D).
The law
is most thoroughly developed in Maine with respect to
discretionary function immunity. Discretionary function
absolute immunity applies as long as the "discretionary
act is reasonably encompassed by the duties of the
governmental employee" and is "available to all
governmental employees . . . who are required to exercise
judgment or discretion in performing their official
duties."[11] Id. § 8111(1) (emphasis
added). On the other hand, discretionary function immunity
does not apply to ministerial acts such that the
"questioned conduct has little or no purely governmental
content but instead resembles decisions or activities carried
on by people generally . . . ." Rodriguez v. Town of
Moose River, 2007 ME 68, ¶ 22, 922 A.2d 484
(citing Adriance v. Town of Standish, 687
A.2d 238, 241 (Me. 1996)).
If'"the
duties of the government employee in question' are not
clear, [the Court uses] a four[-]factor test... to determine
whether the employee's actions were encompassed within
the discretionary function immunity." Gove v.
Carter, 2001 ME 126, ¶ 14, 775 A.2d 368. Those four
factors are as follows:
(1) Does the challenged act, omission, or decision
necessarily involve a basic governmental policy, program, or
objective?
(2) Is the questioned act, omission, or decision essential to
the realization or accomplishment of that policy, program, or
objective as opposed to one which would not change the course
or direction of the policy, program, or objective?
(3) Does the act, omission, or decision require the exercise
of basic policy evaluation, judgment, and expertise on the
part of the governmental agency involved?
(4) Does the governmental agency involved possess the
requisite constitutional, statutory, or lawful authority and
duty to do or make the challenged act, omission, or decision?
Darling, 535 A.2d at 426. "The first, second,
and fourth factors help determine whether the governmental
employee was performing or failing to perform an official
function or duty. The third factor helps determine whether
that function or duty was discretionary in nature, as opposed
to merely ministerial." Carroll v. City of
Portland, 1999 ME 131, ¶ 7, 736 A.2d 279. If the
Legislature clearly provides the duties of the employee in a
statute and the plain language of the statute is clear, then
the Court does "not invoke the aid of the four factors
to guide [the] analysis." Gove, 2001 ME 126,
¶ 14, 775 A.2d 368.
Further,
the Law Court has explicitly stated that the "bad
faith" provision in 14 M.R.S. § 8111(1)(E),
[12]
which negates intentional act immunity, does not apply to the
absolute immunities in subsections (A) through (D), including
discretionary function immunity. See Grossman, 1999
ME 9, ¶ 9, 722 A.2d 371 ("the 'bad faith
proviso' of subparagraph E does not apply to the
remainder of section 8111(1)"). However,
"discretionary function immunity does not extend to
actions 'that so clearly exceed the scope of the
official's authority that the official cannot be said to
be acting in an official capacity."' Doe v.
Graham, 2009 ME 88, ¶ 19, 977 A.2d 391 (quoting
Selby v. Cumberland Cty., 2002 ME 80, ¶ 6 n.5,
796 A.2d 678). As long as the decisions are made in
furtherance of a governmental program or policy, the
governmental actor is shielded by the discretionary function
immunity in the MTCA, even if the discretion is abused.
Id.
When
distinguishing between a discretionary act which is entitled
to immunity and a ministerial act that is not entitled to
immunity, the Law Court has noted "[a]
discretionary act requires judgment or choice,
whereas a ministerial act is mandatory and requires
no personal judgment or choice." Carroll, 1999
ME 131, ¶ 9, 736 A.2d 279. As the United States Supreme
Court previously stated when analyzing the Federal Tort
Claims Act, "[w]here there is room for policy judgment
and decision there is discretion. It necessarily follows that
acts of subordinates in carrying out the operations of
government in accordance with official directions cannot be
actionable." Dalehite v. United States, 346
U.S. 15, 36 (1953).
Over
the years, the Law Court has analyzed different scenarios in
cases that have come before it and provided a general roadmap
as to what types of decisions or acts are or are not entitled
to discretionary function immunity.[13] For example, when a
corrections officer decided to close a cell door which
incidentally severed the finger of a prisoner, the Law Court
determined this was a discretionary decision which was
related to the legitimate governmental function of management
and care of prisoners. Roberts v. State, 1999 ME 89,
¶¶ 9-10, 731 A.2d 855. Along the same lines,
correctional officers' "actions in setting policies,
training and supervising personnel, and taking precautions to
protect inmate safety are protected by discretionary
immunity." Erskine v. Comm'r of Corr., 682
A.2d 681, 686 (Me. 1996). Additionally, the Law Court has
also found
[a] police officer's decision to initiate and conduct a
high speed chase [to constitute] a discretionary decision and
act related to the legitimate governmental function of law
enforcement in Selby, 2002 ME 80, ¶ 10, as did
a police dispatcher's failure to inform officers that a
person was suicidal in Doucette v. City of Lewiston,
1997 ME 157, 16, 697 A.2d 1292, 1294, an officer's
decision to respond in an emergency manner to a particular
complaint in Norton v. Hall. . ., 2003 ME 118 ¶
7, 834 A.2d 928, 931, and an officer's decision not to
give a passenger of an arrested person a ride home in
Moore v. City of Lewiston, 596 A.2d 612, 616 (Me.
1991). A Department of Human Services caseworker's
decision to not tell prospective foster parents that the
foster child they were adopting had made false sexual abuse
claims against foster parents in the past was a discretionary
function. Polley v. Atwell, 581 A.2d 410, 413 (Me.
1990).
Day's Autobody. Inc. v. Town of Medway, No.
BANSCCV-2013-156, 2015 WL 8484348, at *3 (Me. Super. Mar. 5,
2015). The Law Court's determinations of when certain
actions qualify for the protections of discretionary immunity
seemingly turn on the issue of whether the challenged actions
"[were] associated with a plan or policy developed at a
high level of government" and whether they involved
"discretionary decisions that were integral to the
accomplishment of a uniquely governmental policy or
program." Tolliver, 2008 ME 83, ¶¶
19-20, 948 A.2d 1223.
a.
BBO Defendants' Motion to Dismiss
As an
initial matter, the Court notes that Plaintiff pleaded no
factual information whatsoever detailing what exactly
Jacqueline Rogers did to harm Plaintiff. Despite this
absence-either by way of naming "All" Defendants in
a count or by specifically listing Rogers by name-Plaintiff
is attempting to hold her liable for eleven state law tort
claims, violation of MUTPA, and violation of RICO. Despite
that, the only two times Jacqueline Rogers' name even
appears in the FAC is in the initial paragraph listing all of
the named Defendants, and in the heading of Count III.
However, Count III specifically complains of Plaintiff losing
his court-appointed work. Jacqueline Rogers works for the BBO
and Plaintiff pleaded no facts at all to explain how she
could have any effect on the decision to cease giving
Plaintiff court-appointed work. Nor has Plaintiff alleged any
facts constituting wrongful conduct on Jacqueline Rogers'
part at all for which she should be held liable. It
"appear[s] beyond doubt that [Plaintiff] is entitled to
no relief under any set of facts that might be proven in
support of [his] claim [s]" against Jacqueline Rogers
because he has not pleaded anything Jacqueline Rogers did
from which the Court could accept as true and draw reasonable
inferences from. Dragomir, 2009 ME 51, ¶ 15,
970 A.2d 310 (citations and quotations omitted). Accordingly,
Counts I, III, IV, V, VI, VIII, IX, X, XII, XIII, IXX [sic],
XX, and XXI as they pertain to Jacqueline Rogers are
dismissed, thus the BBO Defendants' Motion to Dismiss
with respect to Jacqueline Rogers is GRANTED.
Plaintiff
asserts Counts I, IV, V, VI, VIII, IX, X, XII, XIII, IXX
[sic], XX, and XXI against all BBO Defendants. He asserts
Counts III, XI, and XXV against the BBO and J. Scott Davis.
Because the issue of whether or not the BBO is immune from
suit on the tort claims is being converted to a motion for
summary judgment, this section will discuss the immunity
arguments of Bar Counsel J. Scott Davis and Deputy Bar
Counsel Aria Eee. Plaintiff has described over the course of
almost 400 paragraphs of the FAC complaints against the
Defendants in this case, many of which are directed at Davis
and Eee. The information contained within these paragraphs
explains the allegedly actionable conduct in great detail.
Despite Plaintiffs complaints about Davis's and Eee's
actions, they are immune from Plaintiffs state law tort
claims under the MTC A and the facts giving rise to the
existence of this immunity are contained within the four
corners of Plaintiffs FAC and Justice Brennan's November
21, 2016, Order which has merged into the pleadings pursuant
to the Moody exception.
Plaintiffs
chief complaints against Davis and Eee essentially distill
down to allegations that both zealously prosecuted
disciplinary complaints in BBO proceedings against Plaintiff
in bad faith and did not dismiss those grievance complaints
outright when they should have, due to a lack of merit to the
grievance complaints. (See, e.g., Pl's Amnd.
Compl. ¶¶ 10, 13-17, 76-79, 99, 106, 167-69, 178,
180-81, 295-97.) Plaintiff made it clear in his FAC that he
felt aggrieved by the disciplinary proceedings conducted
against him by Davis and Eee. Despite all of these
allegations about Davis's and Eee's actions during
these disciplinary proceedings, the Court finds their actions
to be of the type that are protected both by the
discretionary function immunity and the prosecutorial
immunity provided to government employees pursuant to the
MTCA.
i.
Discretionary ...