United States District Court, D. Maine
SUSAN JOHNSON, individually and on behalf of her minor son, B.L., and on behalf of Derrick Thompson, deceased. Plaintiff,
CITY OF BIDDEFORD, et al. Defendants.
ORDER ON MAINE DEPARTMENT OF PUBLIC SAFETY AND
COMMISSIONER JOHN E. MORRIS' MOTION TO DISMISS
LEVY, U.S. DISTRICT JUDGE.
Maine Department of Public Safety (“DPS”) and its
Commissioner, John E. Morris (collectively, the “State
Defendants”) have moved to dismiss the two counts of
the complaint against them (Counts I and V) that allege
federal claims under 42 U.S.C.A. §§ 1983 and 1985.
They also move to dismiss the remaining state law claims
brought against them (Counts VI through XIII), urging the
Court not to exercise supplemental jurisdiction. For the
reasons that follow, I grant the State Defendants' Motion
to Dismiss (ECF No. 18) as to Counts I and V, and deny the
Motion as to Counts VI through XIII.
December 29, 2012, James Pak entered Susan Johnson's
apartment in Biddeford and shot Johnson, her son Derrick
Thompson, and Thompson's girlfriend Alivia Welch, while
Johnson's minor son, B.L., listened from another room in
the apartment. Thompson and Welch both died from their
to the shooting, Derrick Thompson had called the police to
report that Pak, his landlord, was making death threats
because of a landlord-tenant dispute over parking. Two
officers from the Biddeford Police Department-both defendants
in this case-reported to the scene and talked with Pak,
Thompson, and Johnson in their apartments for roughly 40
minutes. Pak allegedly admitted to making death threats, told
the officers he had a gun, and warned the officers that if
they did not do something about the parking situation
“there is going to be a bloody mess.” ECF No. 1
at ¶ 23. The officers did not arrest Pak or search Pak
for weapons before leaving. Shortly after the officers left,
Pak entered Susan Johnson's apartment and began shooting.
brings this action on her own behalf, on behalf of her minor
son, B.L., and as the representative of her deceased son,
Derrick Thompson (collectively, “Johnson”),
seeking money damages based on the law enforcement response
to the altercation that preceded and led to the shootings.
Johnson alleges that DPS and Morris, as DPS Commissioner,
were responsible for implementing and monitoring police
training, and that they provided inadequate training to the
police officers and officials involved in responding to
Derrick Thompson's call to the police. In so doing,
Johnson alleges, the State Defendants acted in concert to
deny her the protections of the Constitution in violation of
§ 1983 and § 1985.
survive a motion to dismiss under Federal Rule of Civil
Procedure 12(b)(6), a complaint “must contain
sufficient factual matter to state a claim to relief that is
plausible on its face.” Saldivar v. Racine,
818 F.3d 14, 18 (1st Cir. 2016) (quoting Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)) (internal quotation
marks and alterations omitted). The Court accepts all
well-pleaded facts as true and may ignore conclusory legal
allegations, id., and all reasonable inferences are
drawn in favor of the non-moving party. Id. at 16.
The complaint must contain facts that support a reasonable
inference “that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678.
Determining the plausibility of a claim is a context-specific
task that requires the court “to draw on its judicial
experience and common sense.” Saldivar, 818
F.3d at 18 (quoting Decotiis v. Whittemore, 635 F.3d
22, 29 (1st Cir. 2011) (quotation marks omitted)). The
defendant bears the burden of demonstrating that a complaint
does not state a legally cognizable claim for which relief
can be granted. See 5B Charles A. Wright &
Arthur R. Miller, Federal Practice and Procedure § 1357
(3d ed. 2017 Update).
address, in order, the State Defendants' argument for
dismissal of Johnson's (1) § 1985 claim against the
State Defendants (Count I), (2) § 1983 claim against
Morris (Count V),  and (3) state law claims (Counts VI
42 U.S.C.A. § 1985
State Defendants argue that Johnson fails to state a claim
pursuant to § 1985(3) because, first, Johnson has not
pleaded particularized facts alleging a conspiracy, and
second, there are no allegations of “racial, or . . .
otherwise class-based, invidiously discriminatory
animus.” See Griffin v. Breckenridge, 403 U.S.
88, 102 (1971).
opposition, Johnson has neither objected nor responded to the
State Defendants' first argument that there are
insufficient allegations of conspiracy to state a claim
pursuant to § 1985. Pursuant to Local Rule 7(b),
“[f]ailure to respond to a motion to dismiss means that
opposition to the motion is waived . . . and the motion may
be granted for that reason alone[.]” Andrews v. Am.
Red Cross Blood Servs., New England Region, 251
F.Supp.2d 976, 979 (D. Me. 2003). However, in an excess of
caution, I address the merits of the State Defendants'
claim of conspiracy must allege facts that suggest a
conspiracy rather than set out conclusory allegations that
the defendants made an unlawful agreement.” Boyle
v. Barnstable Police Dep't, 818 F.Supp.2d 284, 318
(D. Mass. 2011); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 556 (2007). Here, Johnson has not alleged any facts
that could suggest a conspiracy or an agreement of any kind
between the State Defendants, or between the State Defendants
and any other party. The only alleged connection the State
Defendants have to the events giving rise to this case is
that at the time of the shooting, DPS was responsible for
monitoring police training and conduct, and Morris was the
Commissioner of DPS. These allegations are insufficient to
state a claim for § 1985(3) conspiracy. See
Rolón v. Rafael Rosario & Assocs., Inc., 450
F.Supp.2d 153, 159 (D.P.R. 2006) (“Generally, a
conspiracy requires a meeting of the minds to ...