446 F.3d 258 (1st Cir. 2006), 05-2727, McConkie v. Nichols

Docket Nº:05-2727.
Citation:446 F.3d 258
Party Name:Michael S. McCONKIE, Plaintiff, Appellant, v. Scott NICHOLS, Defendant, Appellee.
Case Date:May 15, 2006
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 258

446 F.3d 258 (1st Cir. 2006)

Michael S. McCONKIE, Plaintiff, Appellant,

v.

Scott NICHOLS, Defendant, Appellee.

No. 05-2727.

United States Court of Appeals, First Circuit.

May 15, 2006

Heard April 4, 2006.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE, Hon. John A. Woodcock, Jr., U.S. District Judge

Page 259

Christopher K. MacLean, for appellant.

William R. Fisher, Assistant Attorney General, with whom G. Steven Rowe, Attorney General of Maine, was on brief, for appellee.

Before Selya, Circuit Judge, Hug, [*] Senior Circuit Judge, and Howard, Circuit Judge.

HUG, Circuit Judge.

michael McConkie appeals the District Court's decision to grant summary judgment to Maine State Police Detective Scott Nichols. In his First Amended Complaint, McConkie alleged that he was entitled to relief under 42 U.S.C. §§ 1983 and 1988 because Nichols violated his constitutional right to substantive due process in the course of questioning him about suspected sexual abuse of a ten-year-old child. The District Court granted Nichols summary judgment on the ground that no reasonable factfinder could find that Nichols's conduct was conscience-shocking. We affirm.

McConkie's claim arose out of a tape-recorded, noncustodial interview with Detective Nichols on June 23, 1998. Nichols had set up the interview after speaking to

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a boy who said that McConkie had sexually abused him. The transcript of the interview indicates that Nichols was aware of McConkie's criminal history and that McConkie acknowledged to Nichols that he had been placed in an intense therapy program because of his sexual behavior.

During the interview, Nichols told McConkie that "this stuff stays confidential, especially because a juvenile is involved." Later in the interview, McConkie admitted to sexual contact with the child.

These admissions were introduced at McConkie's subsequent criminal trial, but McConkie does not base his claims on the use of the admissions; rather, he bases his claims on the tactics Nichols used in the interview. In particular, in his First Amended Complaint, McConkie alleged that Nichols intentionally deceived him about his Fifth Amendment right against self-incrimination when he made the statement that the information would stay confidential. He further alleged that this violated his substantive due process rights and that he therefore was entitled to relief under 42 U.S.C. §§ 1983 and 1988.

Nichols denied the material allegations of the complaint and asserted affirmative defenses, including that his conduct did not shock the conscience. On February 3, 2005, Nichols moved to dismiss the First Amended Complaint and, alternatively, moved for summary judgment on the ground that McConkie had not alleged conscience-shocking conduct, an essential element of a substantive due process claim. The...

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