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Johnson v. City of Biddeford

United States District Court, D. Maine

March 6, 2018

SUSAN JOHNSON, individually and on behalf of her minor son, B.L., and on behalf of Derrick Thompson, deceased. Plaintiff,
v.
CITY OF BIDDEFORD, et al. Defendants.

          ORDER ON MAINE DEPARTMENT OF PUBLIC SAFETY AND COMMISSIONER JOHN E. MORRIS' MOTION TO DISMISS

          JON D. LEVY, U.S. DISTRICT JUDGE.

         Defendants Maine Department of Public Safety (“DPS”) and its Commissioner, John E. Morris (collectively, the “State Defendants”)[1] 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.

         I. BACKGROUND

         On 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 gunshot wounds.

         Prior 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.

         Johnson 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.

         II. LEGAL STANDARD

         To 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).

         III. ANALYSIS

         I 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), [2] and (3) state law claims (Counts VI through XIII).

         A. 42 U.S.C.A. § 1985

         The 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).[3]

         In 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' argument.

         “[A] 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 ...


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