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Jordan v. Town of Waldoboro

United States District Court, D. Maine

September 28, 2018

SCOTT JORDAN, JR., Plaintiff
v.
TOWN OF WALDOBORO, et al., Defendants

          MEMORANDUM DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT[1]

          John H. Rich III United States Magistrate Judge.

         In this action stemming from the arrest and prosecution of the plaintiff on charges of theft of his late father's property, the remaining five defendants, the Town of Waldoboro, Maine (“Town”), Waldoboro Chief of Police William Labombarde, and Waldoboro police officers Lawrence W. Hesseltine, Jr., Jeffrey Fuller, and Andrew Santheson, seek summary judgment as to all 26 counts against them. See Defendants' Motion for Summary Judgment (“Motion”) (ECF No. 37) at 1-3; Second Amended Complaint (“Operative Complaint”) (ECF No. 29) ¶¶ 73-237.[2]

         For the reasons that follow, I find no triable issue as to any of the plaintiff's claims, and, accordingly, grant the Motion.

         I. Applicable Legal Standards

         A. Federal Rule of Civil Procedure 56

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). “A dispute is genuine if ‘the evidence about the fact is such that a reasonable jury could resolve the point in favor of the non-moving party.” Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013) (quoting Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). “A fact is material if it has the potential of determining the outcome of the litigation.” Id. (quoting Maymi v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008)).

         The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Johnson, 714 F.3d at 52. Once the moving party has made a preliminary showing that no genuine issue of material fact exists, the nonmovant must “produce specific facts, in suitable evidentiary form, to establish the presence of a trialworthy issue.” Brooks v. AIG SunAmerica Life Assur. Co., 480 F.3d 579, 586 (1st Cir. 2007) (quoting Clifford v. Barnhart, 449 F.3d 276, 280 (1st Cir. 2006) (emphasis omitted)); Fed.R.Civ.P. 56(c). “As to any essential factual element of its claim on which the nonmovant would bear the burden of proof at trial, its failure to come forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation omitted).

         B. Local Rule 56

         The evidence that the court may consider in deciding whether genuine issues of material fact exist for purposes of summary judgment is circumscribed by the local rules of this district. See Loc. R. 56. The moving party must first file a statement of material facts that it claims are not in dispute. See Loc. R. 56(b). Each fact must be set forth in a numbered paragraph and supported by a specific record citation. See id. The nonmoving party must then submit a responsive “separate, short, and concise” statement of material facts in which it must “admit, deny or qualify the facts by reference to each numbered paragraph of the moving party's statement of material facts[.]” Loc. R. 56(c). The nonmovant likewise must support each denial or qualification with an appropriate record citation. See id. The nonmoving party may also submit its own additional statement of material facts that it contends are not in dispute, each supported by a specific record citation. See id. The movant then must respond to the nonmoving party's statement of additional facts, if any, by way of a reply statement of material facts in which it must “admit, deny or qualify such additional facts by reference to the numbered paragraphs” of the nonmovant's statement. See Loc. R. 56(d). Again, each denial or qualification must be supported by an appropriate record citation. See id.

         Local Rule 56 directs that “[f]acts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted.” Loc. R. 56(f). In addition, “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment” and has “no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of fact.” Id.; see also, e.g., Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Fed.R.Civ.P. 56(e)(2) (“If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]”).

         II. Factual Background

         A. Stipulated Facts and Other Relevant Facts

         The parties' stipulated facts, as well as relevant statements of material facts credited to the extent admitted or supported by record citations in accordance with Local Rule 56, with disputes resolved in favor of the plaintiff as nonmovant, reveal the following.[3]

         At all relevant times, plaintiff Scott Jordan, Jr. (“Junior” or “the plaintiff”) was employed by the Cumberland County Sherriff's Office as a Lieutenant in the corrections division. Stipulated Facts (ECF No. 34) ¶ 1. At all relevant times, defendant Labombarde was employed by the Town as the Chief of Police of the WPD, defendants Hesseltine and Fuller were employed by the Town as patrol officers for the WPD, and defendant Santheson was employed by the Town as a reserve patrol officer for the WPD. Id. ¶¶ 2-5.

         Junior is the son of Scott M. Jordan, Sr. (“Senior”). Id. ¶ 6. As of May 2014, Senior was living independently in his own home in Waldoboro. Id. ¶ 7. Senior and Junior had made a plan for Senior to move in with Junior and Junior's minor daughter. Id. ¶ 8. On or about May 12, 2014, Senior was taken by ambulance to the emergency department of the Pen Bay Medical Center in Rockport, Maine, and admitted to the hospital. Id. ¶ 9.

         On May 15, 2014, Senior executed an Appointment of Agent Financial Power of Attorney (“POA”) appointing Junior as his agent and attorney-in-fact. Id. ¶ 10. The POA was drafted by Senior's attorney Wayne R. Crandall of Crandall, Hanscom & Collins, P.A., in Rockland, Maine. Id. ¶ 11. Senior executed the POA before Elizabeth Hilchey, a notary public, and Kylie Wadsworth, a witness, while he was still an inpatient at Pen Bay Medical Center. Id. ¶¶ 12-13. Senior was discharged from the hospital on or about May 23, 2014. Id. ¶ 14.

         In a letter dated July 31, 2014, Senior revoked the POA he had previously granted to Junior. Id. ¶ 15. An attorney for Senior, William D. Pease of The Pease Law Firm, sent a letter to Junior dated August 6, 2014. Id. ¶ 16. Junior sent Pease a written response dated August 12, 2014. Id. ¶ 17.

         In the fall of 2014, Hesseltine had a number of conversations with Senior in which Senior complained that Junior had taken property belonging to him and refused to return it. Defendants' Statement of Material Facts Not in Dispute (“Defendants' SMF”) (ECF No. 38) ¶ 12; Plaintiff's Amended Opposing Statement of Material Facts, etc. (“Plaintiff's Amended Opposing SMF”) (ECF No. 57) ¶ 12. Senior was 67 years old at the time. Id. ¶ 13.

         On or about October 17, 2014, Senior made a complaint to the WPD about Junior. Stipulated Facts ¶ 18. Fuller took the complaint from Senior on that date. Id. ¶ 19. Senior told Fuller that he had recently been hospitalized as the result of a liver condition that at times caused toxins to build up in his body, causing him to become confused and not act normally. Defendants' SMF ¶ 16; Plaintiff's Amended Opposing SMF ¶ 16.[4] Senior told Fuller that, while he was hospitalized, he had executed a POA presented to him by his son. Id. ¶ 17.

         Senior reported to both Fuller and Hesseltine that, while Junior had the POA, he had taken Senior's 2003 Chevrolet pickup truck and transferred its title ownership to himself. Id. ¶ 20. Senior reported to both Fuller and Hesseltine that Junior was refusing his demands to return his truck, with an appropriate title. Id. ¶ 21. Hesseltine confirmed that the title to Senior's truck was now in Junior's name. Id. ¶ 22. Senior also advised both officers that Junior had taken several firearms belonging to him and was refusing to return them, as well. Id. ¶ 23. Senior requested that the WPD help him recover his pickup truck and firearms. Id. ¶ 25.

         When Fuller took Senior's complaint on October 17, 2014, he asked him to provide him a copy of the POA, and Senior delivered a copy of it to the Waldoboro police station the following day, October 18, 2014. Id. ¶ 26; Stipulated Facts ¶ 19. Fuller spoke by telephone with Junior on October 17, 2014, and Junior said that he would return Senior's truck but without changing the title owner and would not return his firearms. Defendants' SMF ¶ 28; Plaintiff's Amended Opposing SMF ¶ 28. When Fuller asked Junior to explain where the money he had obtained from selling Senior's possessions while he was hospitalized had gone, Junior said that it had all been spent either to pay Senior's bills or fix up Senior's house. Id. ¶ 29.

         Junior told Fuller that he and Senior had agreed to fix up Senior's house and sell it and then have Senior move in with Junior at Junior's house in Standish, Maine. Id. ¶ 30. Junior told Fuller that after Senior was released from his various hospital stays during the May through July time period, he had changed his mind about selling his house and moving and instead decided he wanted to stay in his own home. Id. ¶ 31.[5] Junior claimed to Fuller that he had spent a large amount of his own time and money trying to fix up his father's home before Senior changed his mind about selling it. Id. ¶ 32. Fuller asked Junior to provide him a written statement in response to Senior's complaint. Id. ¶ 33. Junior delivered to the police station copies of the August 6, 2014, letter from Pease and his August 12, 2014, written response, as well as some receipts for vehicle repairs to Senior's truck and the purchase of some building materials. Id. ¶ 34; Stipulated Facts ¶ 22.

         Because Senior had also spoken to Hesseltine about his complaints against his son, and because Fuller was about to leave for an extended vacation, it was determined that Hesseltine would handle the investigation of Senior's complaints going forward. Defendants' SMF ¶ 35; Plaintiff's Amended Opposing SMF ¶ 35. Hesseltine received the documents that both Senior and Junior had provided to Fuller. Id. ¶ 40.

         On November 1, 2014, Hesseltine met with Senior at his home to obtain information about his complaint against his son. Id. ¶ 41. Senior claimed to Hesseltine that he should not have been asked by Junior to sign the POA on that date because he was still suffering from confusion, that he did not read it, and that he felt almost pressured by Junior to sign it. Id. ¶ 45.

         Senior told Hesseltine that Junior had sold personal property of his valued at more than $3, 000 while he was hospitalized. Defendants' SMF ¶ 49; Affidavit of Lawrence Hesseltine (“Hesseltine Aff.”) (ECF No. 38-2), attached to Defendants' SMF, ¶ 6.[6] Senior also told Hesseltine that Junior had sold a trailer belonging to Senior for $2, 000 but did not use a portion of the sale proceeds to pay Senior's property tax bill as he had instructed him to do. Defendants' SMF ¶ 50; Hesseltine Aff. ¶ 6.[7]

         Senior advised Hesseltine that Junior had possession of Senior's debit card until he was released from the hospital in July 2014 and, upon his release, Senior learned that more than $2, 000 in Social Security and Veterans Administration benefits that had been direct-deposited in his bank account while he was hospitalized had been withdrawn by Junior and was unaccounted for. Defendants' SMF ¶ 51; Hesseltine Aff. ¶ 6.[8]

         Senior provided Hesseltine with detailed written statements containing his allegations of theft of his property and money by Junior while he held the POA, along with lists of missing property. Defendants' SMF ¶ 52; Hesseltine Aff. ¶ 6.[9] Senior told Hesseltine that, because Junior was using the powers granted by the POA to take actions that were not in Senior's interest and against his expressed wishes, he sent Junior a letter on July 31, 2014, revoking the POA and demanding that Senior's truck be returned to him with title in Senior's name. Defendants' SMF ¶ 53; Hesseltine Aff. ¶ 7.[10] Senior also provided Hesseltine with a copy of the second letter sent to Junior, drafted by his attorney and dated July 31, 2014, that revoked the POA and demanded the return of Senior's truck and firearms. Defendants' SMF ¶ 54; Plaintiff's Amended Opposing SMF ¶ 54.

         Senior gave Hesseltine a copy of Pease's August 6, 2014, letter to Junior demanding the return of Senior's truck and firearms and an accounting of the financial activities Junior undertook on Senior's behalf during the period the POA was in effect, including an explanation for the $3, 000 worth of antiques Senior believed had been sold by Junior. Id. ¶ 55.[11] Fuller had provided Hesseltine a copy of the August 12, 2014, letter from Junior to Pease responding to Pease's August 6, 2014, demand letter. Id. ¶ 56.

         On November 18, 2014, Senior came to the Waldoboro police station and reported that he had learned that Junior was planning to sell his truck. Id. ¶ 62. Hesseltine was able to locate an advertisement on Craiglist of Senior's truck for sale for $7, 900. Id. ¶ 63. The seller's listed telephone number was Junior's cell phone number. Id.

         On the same day, November 18, 2014, Senior provided Hesseltine with a copy of a bill that he had received from AT&T Wireless for $305 for a cell phone account that had been opened in his name. Id. ¶ 66. The cell phone number on the account was that of Junior, although Senior was responsible for the bill because the account had been opened in his name. Id. ¶ 67.

         On November 20, 2014, Hesseltine authored and filed in the Maine District Court in Wiscasset, Maine, an Affidavit and Request for Search Warrant for the residence of Junior, located in the Town of Standish, Maine, and any and all vehicles, boats and/or outbuildings on the premises, including but not limited to listed items of personal property claimed to belong to Senior and any financial documentation, to include bank records and receipts showing the disposition of Senior's claimed property. Stipulated Facts ¶ 24; see also Affidavit and Request for Search Warrant (“S.W. Aff.”) (ECF No. 33-2), attached to Stipulated Record. Items sought to be seized included Senior's truck and his firearms. Defendants' SMF ¶ 70; Plaintiff's Amended Opposing SMF ¶ 70.

         Before Hesseltine filed the affidavit and application in the Maine District Court, Labombarde reviewed it, and Hesseltine submitted it to Assistant District Attorney Andrew Wright for his review and approval. Id. ¶ 69. On the same day, a Maine District Court Judge granted the request. Stipulated Facts ¶ 25.

         On November 21, 2014, Hesseltine, accompanied by Santheson and Maine State Police officers, executed a search of Junior's residence and property pursuant to the search warrant dated November 20, 2014. Id. ¶ 26. Junior was arrested without an arrest warrant at his residence in Standish, Maine, by Hesseltine. Id. ¶ 27. Hesseltine served Junior with a Uniform Summons and Complaint dated November 21, 2014, for violation of Title 17-A section 353.1A.2 Class B Theft by Unauthorized Taking/Transfer. Id. ¶ 28. Junior was transported to Two Bridges Jail by Hesseltine and Santheson and released the same day on $5, 000 unsecured bail with conditions of release pursuant to a bail bond. Id. ¶¶ 29-30.

         Santheson had one prior encounter involving Senior and Junior when he was dispatched to a complaint by Senior that Junior had assaulted him on July 27, 2014. Defendants' SMF ¶ 106; Plaintiff's Amended Opposing SMF ¶ 106.[12] Santheson spoke to Junior by telephone, and Junior advised him that the dispute had begun with an argument over Junior's decision to re-register Senior's truck in his own name. Id. ¶ 108.[13] Because neither Senior nor Junior would give a statement to Santheson, and both indicated that they did not wish to press criminal charges, Santheson did no further investigation of any complaints that Senior may have had with Junior's use of the POA. Defendants' SMF ¶ 109; Affidavit of Andrew Santheson (“Santheson Aff.”) (ECF No. 38-4), attached to Defendants' SMF, ¶¶ 22-23.[14]

         The truck was in plain view when officers arrived at Junior's home to execute the search warrant, and Santheson already knew, from speaking to Junior in July 2014 following Senior's assault complaint, that Junior had the truck. Statement of Additional Material Facts in Support of Opposition to Defendants' Motion for Summary Judgment (“Plaintiff's Additional SMF”), commencing on page 32 of Plaintiff's Amended Opposing SMF, ¶ 86; Defendants' Reply Statement of Material Facts, etc. (“Defendants' Reply SMF”) (ECF No. 61) ¶ 86. Hesseltine could see Senior's truck parked in Junior's driveway. Defendants' SMF ¶ 84; Plaintiff's Amended Opposing SMF ¶ 84. Junior was arrested because he was found in possession of the truck and guns; however, he had not tried to hide that fact, and it was known that he had them. Plaintiff's Additional SMF ¶ 96; Defendants' Reply SMF ¶ 96. Hesseltine would not have charged Junior with theft if he had given the truck and firearms back, but he never contacted Junior after he took over the investigation. Id. ¶ 97.[15]

         Junior told Hesseltine that all of Senior's personal property had been sold and was not on the premises. Defendants' SMF ¶ 85; Plaintiff's Amended Opposing SMF ¶ 85. Hesseltine located the title to Senior's truck in the glove compartment, along with a bill of sale purportedly signed by Senior indicating that Senior had sold the truck to Junior. Defendants' SMF ¶ 86; Hesseltine Aff. ¶ 12.[16] When Hesseltine showed Senior the document indicating that he had voluntarily transferred ownership to Junior, Senior indicated that he had never signed such a document and that his signature had been forged by Junior. Defendants' SMF ¶ 87; Plaintiff's Amended Opposing SMF ¶ 87.

         Hesseltine published to the media on November 25, 2014, shortly after Junior's arrest, that the WPD searched Junior's home and recovered items that led to his arrest, but would not say what items were recovered other than the gun. Plaintiff's Additional SMF ¶ 91; Defendants' Opposing SMF ¶ 91.

         Labombarde was quoted, on November 29, 2014, on the website privateofficer.com, in an article titled “Cumberland County Jail Employee Is Accused of Stealing from His Own Father, ” as stating that “the theft happened between May and August of this year.” Id. ¶ 92.

         After Junior's arrest, Hesseltine prepared an investigative report for the District Attorney's Office that was accompanied by all documents that he had received from Senior, Senior's hospital records from the period in which he signed the POA naming Junior as his agent, a written statement from Floyd Oliver attesting to Senior's observed confusion on the day he signed the POA, bank records for Senior and Junior that had been obtained by Grand Jury subpoena, receipts supplied by Junior as evidence of the disposition of Senior's money, and the POA and correspondence relating to the rescinding of the POA and demands for financial accounting involving Junior, Senior, and Pease that had been provided to Fuller in October 2014. Defendants' SMF ¶ 91; Hesseltine Aff. ¶ 13.[17]

         Hesseltine's narrative report and investigative file, including all supporting materials, were turned over to the District Attorney's Office for its consideration of Senior's claim that Junior had used the POA to take actions that were not in Senior's interest and against his expressed directives and that Senior had been financially exploited by his son by the theft of his personal property and money. Defendants' SMF ¶ 92; Hesseltine Aff. ¶ 13.[18]

         At the conclusion of his investigation, Hesseltine was called to testify before a Lincoln County Grand Jury convened by Wright. Defendants' SMF ¶ 93; Plaintiff's Amended Opposing SMF ¶ 93. Both Senior and Junior also testified before the Grand Jury. Id. ¶ 94. The District Attorney used the POA when questioning Hesseltine during his Grand Jury testimony. Id. ¶ 95. During his Grand Jury testimony, Junior was able to explain that the POA was drafted by Senior's attorney and not by him and that the reason he refused to return Senior's firearms was because he thought his father might be suicidal. Id. ¶ 96. During his Grand Jury testimony, Junior admitted that he had placed Senior's truck up for sale on Craigslist. Id. ¶ 97.

         On March 10, 2015, the Grand Jury returned a five-count indictment against Junior in the matter State of Maine v. Scott Jordan, Jr., Lincoln County Superior Court, Docket No. CR-14-406, for three counts of violation of 17-A M.R.S.A. § 353(1)(B)(2), Theft by Unauthorized Taking, Class B, one count of violation of 17-A M.R.S.A. § 353(1)(B)(1), Theft by Unauthorized Taking, Class B, and one count of violation of 17-A M.R.S.A. § 358(1)(B)(1), Theft by Misapplication of Property, Class B. Stipulated Facts ¶ 31.

         After the Grand Jury returned its indictment on March 10, 2015, Hesseltine responded to media requests about the case, describing it as a case of “elder abuse” based on his knowledge that the Grand Jury had found probable cause to believe Junior had committed theft and financial exploitation of his elderly father. Defendants' SMF ¶ 99; Plaintiff's Amended Opposing SMF ¶ 99.

         In addition, after the indictment had been returned, Labombarde responded to media requests about the case, describing it as a case of “elder abuse” based on his knowledge that the Grand Jury had found probable cause to believe that Junior had committed theft of property and misappropriation of money that belonged to his elderly father. Defendants' SMF ¶ 100; Affidavit of Chief William Labombarde (“Labombarde Aff.”) (ECF No. 38-1), attached to Defendants' SMF, ¶ 6.[19]

         Senior died on or about September 1, 2015. Stipulated Facts ¶ 34. On September 14, 2015, the criminal proceedings against Junior were dismissed by the Lincoln County District Attorney's Office pursuant to M. R. Crim. P. 48(a) with the stated reason for the dismissal: “[X]Other The victim and key witness in the case for the State, Scott Jordan Sr, has died[.]” Id. ¶ 35.

         Junior was unable to see his ill father due to bail conditions, and Senior died without Junior being there. Plaintiff's Additional SMF ¶ 74; Defendants' Reply SMF ¶ 74. Any possible relationship between Junior and Senior at the end of Senior's life was destroyed due to Junior's arrest and prosecution. Plaintiff's Additional SMF ¶ 75; Plaintiff Scott Jordan, Jr.'s Answers to Defendants' First Set of Interrogatories to Plaintiff Scott Jordan, Jr. (ECF No. 38-13), attached to Defendants' SMF, ¶ 16, at Page ID # 826.[20]

         The only liability coverage available to the Town of Waldoboro and its employees in the action brought by the plaintiff is the limited liability coverage provided as a result of the Town's membership in the Maine Municipal Association Property & Casualty Pool, a self-insured municipal risk pool. Defendants' SMF ¶ 103; Plaintiff's Amended Opposing SMF ¶ 103. Limited liability coverage for state law claims is provided in those areas where the Town and its employees do not enjoy immunity under the Maine Tort Claims Act, as described in the Member Coverage Certificate. Id. ¶ 104.

         B. Facts Taken at Face Value

         Even accepting at face value a number of the plaintiff's asserted facts, they are not outcome-determinative. The majority of these facts bear on the defendant officers' failure, prior to seeking a warrant to search the plaintiff's home or placing him under arrest, to verify Senior's allegations and take into account evidence bearing negatively on Senior's credibility and positively on that of the plaintiff. See, e.g., Plaintiff's Additional SMF ¶¶ 43, 67 (Hesseltine failed to verify Senior's information despite Senior's known credibility problems).[21]

         As a matter of law, these asserted facts are not outcome-determinative because, as the defendants note, see Defendants' Reply Memorandum in Support of Motion for Summary Judgment (“Reply”) (ECF No. 60) at 5-6, “probable cause does not require officers to rule out a suspect's innocent explanation for suspicious facts[, ]” District of Columbia. v. Wesby, 138 S.Ct. 577, 588 (2018). See also, e.g., Cox v. Hainey, 391 F.3d 25, 32 n.2, 34 (1st Cir. 2004) (noting that “[a] reasonable police officer is not required to credit a suspect's story” and that “the practical restraints on police in the field are greater with respect to ascertaining intent and, therefore, the latitude accorded to officers considering the probable cause issue in the context of mens rea crimes must be correspondingly great”).

         For the reasons discussed below, the following categories of evidence also are not outcome-determinative: (i) whether Senior was competent to execute the POA, see Plaintiff's Additional SMF ¶¶ 2-4, 30, 59, 62, 119, (ii) whether Hesseltine and other officers crossed the threshold of Junior's home to place him under immediate arrest prior to conducting a search pursuant to the warrant, see Id. ¶¶ 16-25, (iii) Hesseltine's subjective state of mind in determining whether and at what point he had probable cause to arrest the plaintiff, see id. ¶¶ 5-8, and (iv) statements that Hesseltine made to the plaintiff's employer, see id. ¶ 122.

         In taking these facts into consideration in determining whether the defendants have demonstrated their entitlement to summary judgment, I have not reached the merits of any requests by the defendants to strike them or determined whether, if denied, they are supported by the citations given.

         III. Discussion

         A. Unlawful Search & Seizure (Counts I-VI) (All Defendants)

         The plaintiff alleges in Counts I and IV of his complaint, brought pursuant to the Maine Civil Rights Act (“MCRA”), 5 M.R.S.A. § 4682, and 42 U.S.C. § 1983, respectively, that the individual defendants (Labombarde, Hesseltine, Fuller, and Santheson) violated both his Maine constitutional rights and his rights pursuant to the Fourth and Fourteenth amendments to the United States Constitution when they conducted an unlawful search of his home and seizure of his property pursuant to a search warrant obtained through falsehoods and omissions that undermined probable cause for the search. See Operative Complaint ¶¶ 73-82, 94-103.

         He alleges in Counts II, III, V, and VI, also brought pursuant to the MCRA and section 1983, that the Town and/or Labombarde are liable for those constitutional violations based on inadequate training, supervision, and/or discipline of the Town's police officers and the Town's unconstitutional or grossly negligent policies, pattern of conduct, customs, practices, and/or procedures. See id. ¶¶ 83-93, 104-14.

         The defendants seek summary judgment as to all six counts on the basis that there is no triable issue that the search warrant was unsupported by probable cause. See Motion at 4-9, 26. In the alternative, they argue that (i) Hesseltine, the author of the affidavit submitted in support of the warrant application, is entitled to qualified immunity, [22] (ii) Santheson, Fuller, and Labombarde are entitled to summary judgment because they had no role, or a minimal role, in procuring the warrant or conducting the search, and (iii) the plaintiff fails to make out a triable issue of deliberate indifference on the part of the Town or of Labombarde, acting in his supervisory capacity. See Motion at 9-13, 26-30. I find the first point dispositive in the defendants' favor and, hence, need not and do not reach their remaining points.

         1. Applicable Legal Standard

         As a threshold matter, as the plaintiff acknowledges, section 1983 claims for unlawful search and seizure are properly analyzed solely pursuant to the Fourth Amendment. See Motion at 4; Opposition to Defendants['] Motion for Summary Judgment (“Opposition”) (ECF No. 51) at 2-3; Reply at 3 n.5; Albright v. Oliver, 510 U.S. 266, 274 (1994) (“The Framers considered the matter of pretrial deprivations of liberty and drafted the Fourth Amendment to address it.”).

         In turn, analysis of the plaintiff's Fourth Amendment claims of unlawful search and seizure pursuant to section 1983 is dispositive of his parallel Maine constitutional claims pursuant to the MCRA. See, e.g., Jackson v. Town of Waldoboro, 751 F.Supp.2d 263, 275 (D. Me. 2010) (“The MCRA, which provides a general remedy for violations of federal and state constitutional and statutory rights, is ‘patterned' after Section 1983. As such, disposition of a claim under Section 1983 controls a claim brought under MCRA.”) (citations omitted).

         The Fourth Amendment provides that “no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. To satisfy this standard, an application for a search warrant must demonstrate probable cause to believe that (i) “a crime has been committed” (the “commission” element) and (ii) “enumerated evidence of the offense will be found at the place to be searched” (the “nexus” element). United States v. Cordero-Rosario, 786 F.3d 64, 69 (1st Cir. 2015) (citations and internal quotation marks omitted). “The task of the issuing magistrate is . . . to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, . . . there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983).

         When reviewing a magistrate's probable cause finding, the reviewing court gives “significant deference” to the magistrate's initial evaluation, and relief is warranted only if there is “no substantial basis” for the probable cause finding. Cordero, 786 F.3d at 69 (citation and internal quotation marks omitted). Probable cause is assessed in light of the totality of the circumstances contained in the search warrant affidavit, and is to be evaluated in light of “the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Gates, 462 U.S. at 230-31 (citation and internal quotation marks omitted).

         “[T]o show that a magistrate's facially valid probable cause determination was constitutionally unacceptable, the moving party must demonstrate that the police officer submitted to the magistrate evidence that was not ‘believed or appropriately accepted by the [officer] as true.'” Hernandez-Cuevas v. Taylor, 723 F.3d 91, 101 (1st Cir. 2013) (quoting Franks v. Delaware, 438 U.S. 154, 165 (1978)). Because this requirement flows from the “‘language of the Warrant Clause itself, which surely takes the affiant's good faith as its premise[, ]' . . . the magistrate's probable cause determination must not have relied upon evidence an officer submitted in bad faith.” Id. (quoting Franks, 438 U.S. at 164).

         “Franks, however, did not establish strict liability for police officers.” Id. at 102. “To show that the evidence presented to the magistrate was not ‘truthful' in the Franks sense, ‘[a]llegations of [police] negligence or innocent mistake are insufficient.'” Id. (quoting Franks, 438 U.S. at 171). “Rather, the plaintiff must demonstrate that law enforcement officers made statements in the warrant affidavit which amounted to ‘deliberate falsehood or . . . reckless disregard for the truth,' and that those deliberate falsehoods were necessary to the magistrate's probable cause determination.” Id. (quoting Franks, 438 U.S. at 171) (emphasis in original).

         “Reckless disregard for the truth in the submission of a warrant application may be established where an officer in fact entertained serious doubts as to the truth of the allegations or where circumstances evince[ed] obvious reasons to doubt the veracity of the allegations in the application.” Burke, 405 F.3d at 81 (citation and internal quotation marks omitted).

         In addition, “the intentional or reckless omission of material exculpatory facts from information presented to a magistrate may also amount to a Fourth Amendment violation.” Id. In that context, “recklessness may be inferred where the omitted information was critical to the probable cause determination.” Id. at 81-82 (citation and internal quotation marks omitted).

         In order to determine the materiality of alleged misstatements or omissions, courts “excise the offending inaccuracies and insert the facts recklessly omitted, and then determine whether or not the ‘corrected' warrant affidavit would establish probable cause.” Id. at 82. (citation and internal quotation marks omitted).

         2. Analysis

         The defendants seek summary judgment on the basis that the plaintiff cannot demonstrate, as a matter of law, the materiality of omissions to disclose that (i) the POA contained language conferring broad powers on the plaintiff, (ii) the plaintiff explained that he declined to return Senior's firearms because he believed that Senior was suicidal, and, (iii) in a July 2014 incident during which police responded to Senior's report that the plaintiff had assaulted him, the plaintiff reported that Senior had stolen his personal property and refused to return it. See Motion at 6-9; Operative Complaint ¶¶ 47-49.

         The plaintiff disagrees, cataloguing omissions and misstatements affecting nine paragraphs of the search warrant affidavit. See Opposition at 4-9. I conclude that, even construing the evidence in the light most favorable to the plaintiff, his showing fails to meet the Franks standard.

         a. ...


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