United States District Court, D. Maine
ORDER ON RECOMMENDED DECISION ON DEFENDANTS'
PARTIAL MOTION TO DISMISS
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
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
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. 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.
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.
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.
THE RECOMMENDED DECISION
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.
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.
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.
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
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.
POSITIONS OF THE PARTIES
Mr. Dastinot's Objection
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.
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