United States District Court, D. Maine
MEMORANDUM DECISION ON DEFENDANTS' MOTION FOR
H. Rich III United States Magistrate Judge.
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.
reasons that follow, I find no triable issue as to any of the
plaintiff's claims, and, accordingly, grant the Motion.
Applicable Legal Standards
Federal Rule of Civil Procedure 56
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.
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).
Local Rule 56
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.
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
Stipulated Facts and Other Relevant Facts
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.
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.
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.
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.
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.
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.
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. Senior told
Fuller that, while he was hospitalized, he had executed a POA
presented to him by his son. Id. ¶ 17.
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.
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.
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. 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 ¶
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.
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.
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. 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. ¶
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.
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. 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. 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.
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. 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.
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.
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.
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.
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.
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.
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. 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. 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,
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.
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. 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.
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 ¶
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.
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. ¶
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. ¶
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.
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 ¶
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.
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.
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.
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 #
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.
Facts Taken at Face Value
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
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
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.
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.
Unlawful Search & Seizure (Counts I-VI) (All
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.
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.
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,
(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.
Applicable Legal Standard
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.”).
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).
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
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).
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).
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).
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).
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).
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).
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 ¶¶
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