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Dastinot v. Auburn Police Department

United States District Court, D. Maine

February 7, 2019

ROMELLY DASTINOT, Plaintiff,
v.
AUBURN POLICE DEPARTMENT, et al., Defendants.

          ORDER ON RECOMMENDED DECISION ON DEFENDANTS' PARTIAL MOTION TO DISMISS

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Pro se plaintiff filed suit against a local police department and its individual police officers pursuant to 42 U.S.C. § 1983 claiming violations of his constitutional rights. The plaintiff also claims that the police department and officers violated the Federal Tort Claims Act by acting with gross negligence and by using excessive force against him. The plaintiff seeks declaratory and injunctive relief.

         The defendants moved to dismiss all the plaintiff's claims except for the unlawful arrest and excessive force claims against three individual defendants. The Magistrate Judge recommended that all the plaintiff's claims be dismissed except his claims under § 1983 for unlawful arrest, excessive force, and retaliation for the exercise of his First Amendment rights. Plaintiff objected. Because the plaintiff's objections are either procedurally barred or lack merit, the Court affirms the Magistrate Judge's Recommended Decision.

         I. BACKGROUND

         On April 23, 2018, Rommelly Dastinot filed a complaint against the city of Auburn police department, the chief of the Auburn police department, and other individual police officers (the Defendants), alleging violations of his First Amendment, Fourth Amendment, and Eighth Amendment rights under § 1983 as well as state tort claims of assault and battery, abuse of process, false arrest, infliction of emotional distress, and negligence.[1] Compl. at 4-5 (ECF No. 1). The Magistrate Judge outlined the alleged facts:

On February 15, 2014, while [Mr. Dastinot] was waiting for a taxi outside a business establishment, Defendant Watkins, an officer with the Auburn Police Department, grabbed [Mr. Dastinot], put him against a car, and held him there. When [Mr. Dastinot] asked why he was being arrested, another officer, Defendant Lemos, used a taser on [Mr. Dastinot], which caused [Mr. Dastinot] to fall to the ground. [Mr. Dastinot] alleges that while he was on the ground, the officers pressed [his] face into the pavement, and held him on the ground. A third officer, Defendant Ham, then instructed his police canine to attack [Mr. Dastinot], and the canine bit [Mr. Dastinot] in the leg. At the police station, [Mr. Dastinot] overhead an unidentified officer instruct the booking officers to assign a high bail. ([Compl.] at 6 - 8.) Ultimately, according to [Mr. Dastinot], all charges against [him] were dismissed.

Recommended Decision on Defs.' Partial Mot. to Dismiss, at 2. (ECF No. 16) (Recommended Decision). On August 9, 2018, the Defendants filed a partial motion to dismiss for failure to state a claim. Defs.' Partial Mot. to Dismiss (ECF No. 14) (Defs.' Mot.). Mr. Dastinot did not respond to the Defendants' motion.

         On September 21, 2018, the Magistrate Judge recommended dismissal of all Mr. Dastinot's claims except his claims under 42 U.S.C. § 1983 against Defendants Tyler Ham, Mark Lemos, and Scott Watkins for unlawful arrest, excessive force, and retaliation for the exercise of his First Amendment rights. Recommended Decision at 8. In a document dated October 1, 2018, Mr. Dastinot stated that he intended to file an objection to the Magistrate Judge's Recommended Decision and asked the Court to appoint him a lawyer for this suit. Notice of Obj. to Recommended Decision on Defs.' Partial Mot. to Dismiss, at 1-2 (ECF No. 18) (Pl.'s Notice of Obj.). On October 9, 2018, Mr. Dastinot sent a letter-dated October 2, 2018-to the Court reiterating his request for the appointment of counsel. Letter Mot. to Appoint Counsel (ECF No. 19). On October 10, 2018, the Magistrate Judge denied Mr. Dastinot's request for the appointment of counsel. Order on Pl.'s Mot. to Appoint Counsel (ECF No. 20).

         On October 12, 2018, the Defendants filed a response to Mr. Dastinot's notice of objection to the Recommended Decision. Defs.' Resp. to Pl.'s Obj. to Recommended Decision on Defs.' Partial Mot. to Dismiss (ECF No. 21) (Defs.' Opp'n). Then, on October 22, 2018, the Clerk's office docketed Mr. Dastinot's supplemental objection to the Recommended Decision-dated October 16, 2018. Pl.['s] Objs. to U.S. Magistrate Judge's Recommended Decision on Defs.' Partial Mot. to Dismiss (ECF No. 22) (Pl.'s Suppl. Obj.). On October 31, 2018, the Defendants' filed a response to Mr. Dastinot's supplemental objection. Defs.' Resp. to Pl.'s Suppl. Obj. to Recommended Decision on Defs.' Partial Mot. to Dismiss (ECF No. 23) (Defs.' Suppl. Opp'n).

         II. THE RECOMMENDED DECISION

         The Magistrate Judge concluded Mr. Dastinot failed to adequately allege facts to state a claim except his claims under § 1983 for unlawful arrest, excessive force, and retaliation for the exercise of his First Amendment rights against Defendants Watkins, Ham, and Lemos. Recommended Decision at 8.

         Taking Mr. Dastinot's allegations as true and all reasonable inferences in favor of Mr. Dastinot, the Magistrate Judge concluded Mr. Dastinot adequately alleged a First Amendment claim in claiming that “when he asked for the reason for his arrest, one of the defendants used a taser, which caused him to fall to the ground.” Id. at 4. The Magistrate Judge determined this stated a plausible First Amendment retaliation claim. Id. (citing Hopkins v. Claroni, No. 1:13-cv-229-DBH, 2015 WL 2371654, at *3 (D. Me. May 18, 2015)). The Defendants did not move to dismiss Mr. Dastinot's claims for unlawful arrest and excessive force against Defendants Ham, Lemos, and Watkins. Id. at 4; Defs.' Mot. at 9-10.

         The Magistrate Judge concluded that Mr. Dastinot failed to adequately state a claim under the Eighth Amendment. Recommended Decision at 5. He reasoned that because Mr. Dastinot does not allege he was convicted of any crime, the Cruel and Unusual Punishment Clause of the Eighth Amendment is inapplicable to him because it “applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions.'” Id. (citing Defs.' Mot. at 10) (citing Whitley v. Albers, 475 U.S. 312, 318)). The Magistrate Judge also concluded that Mr. Dastinot failed to adequately allege facts to support an excessive bail claim. Id.

         The Magistrate Judge determined that Mr. Dastinot failed to state sufficient facts to state a claim as to support his municipal liability claim against the city of Auburn and his supervisor liability claim against the Auburn Chief of Police, Phillip L. Crowell. Id. at 5-6. In regard to the former, the Magistrate Judge cited United States Supreme Court precedent, which provides that to bring a municipal liability claim under § 1983, a claimant must present facts establishing that the injury or violation brought upon by municipal employees was “the product or in accordance with an official policy of custom of the city of Auburn, or Defendant Crowell.” Id. at 6 (citing Monell v. Dep't of Soc. Servs. of City of New York, 436 U.S. 658, 694 (1978)). As for the supervisor liability claim, the Magistrate Judge concluded Mr. Dastinot did not allege facts showing that Chief Crowell “directed the conduct about which [he] complains, or that he encouraged, condoned, acquiesced in, or demonstrated deliberate indifference to the conduct[]” and thus failed to state a claim for supervisor liability.

         Lastly, the Magistrate Judge found that Mr. Dastinot's tort claims are barred under the Maine Tort Claims Act's (MTCA) two-year statute of limitations. Id. at 7. The Magistrate Judge reasoned that the underlying event Mr. Dastinot bases these claims on took place on February 15, 2014, and he filed the Complaint on April 23, 2018, making his tort claims untimely. Id. (citing 14 M.R.S. § 8110).

         III. POSITIONS OF THE PARTIES

         A. Mr. Dastinot's Objection[2]

         Mr. Dastinot states he “believes that he can prove at trial through witnesses and other evidence that his bail was in fact excessive and retaliatory[]”, and, in support, cites Herzog v. United States, 75 S.Ct. 349 (1955). Pl.'s Suppl. Obj. at 4. Mr. Dastinot also contends that the Magistrate Judge erred in concluding that his Maine state tort claims are untimely. Id. Mr. Dastinot asserts:

It is well settle[d] by the Supreme Court of the United States that a civil claim (in this case “State Law Claims”) cannot be use[d] as a vehicle for dismissing a criminal charge . . . [which] follows from a broader principle that a § 1983 claim should not function as a ...

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