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Carey v. Maine Board of Overseers of Bar

Superior Court of Maine, Kennebec

October 25, 2017

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 ...


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