Luce v. Hayden, Civ. No. 84-0328P.

• Citation: 598 F. Supp. 1101
• Decision Date: 13 December 1984
• Docket Number: Civ. No. 84-0328P.
• Parties: Texx LUCE, Plaintiff, v. Dennis HAYDEN, David W. Sinclair, and Allan H. Weeks, Chief, Maine State Police, Defendants.
• Court: U.S. District Court — District of Maine

598 F. Supp. 1101

Texx LUCE, Plaintiff, v. Dennis HAYDEN, David W. Sinclair, and Allan H. Weeks, Chief, Maine State Police, Defendants.

Civ. No. 84-0328P.

United States District Court, D. Maine.

December 13, 1984.

Texx Luce, pro se.

Michael E. Saucier, Hunt Thompson & Bowie, Portland, Maine, for defendants.

MEMORANDUM OF DECISION

GENE CARTER, District Judge.

This case is before the Court on Defendants' Motion to Dismiss Plaintiff's Complaint. Plaintiff, appearing pro se, filed a Complaint seeking compensatory and punitive damages pursuant to 42 U.S.C. § 1983 on September 24, 1984. Defendants are Trooper Dennis Hayden and Sergeant David W. Sinclair of the Maine State Police and Maine State Police Chief Allan H. Weeks. Plaintiff alleges, among other things, that Trooper Hayden arrested him in Greene, Maine on June 10, 1984; that Trooper Hayden then handcuffed Plaintiff behind his back and forced him to lie on his stomach; that Trooper Hayden then directed a trained state police dog to bite Plaintiff "on the rear part of his body"; and that the alleged dog attack caused serious physical, psychological and emotional injuries. Plaintiff claims that these actions violated his rights under the eighth amendment and the due process clause of the fourteenth amendment to the United States Constitution.

Plaintiff alleges that Defendant Sergeant David W. Sinclair knew of Trooper Hayden's actions and allowed said actions to be taken. Plaintiff claims that the Maine State Police Chief should be held liable for his alleged injury because Trooper Hayden's actions reflect a policy or practice of the Maine State Police.

In considering this Motion to Dismiss brought pursuant to Fed.R.Civ.P. 12(b)(6), the Court must accept the allegations in the Complaint as true and construe them in a light most favorable to Plaintiff. See Carr v. Learner, 547 F.2d 135, 137 (1st Cir.1976); Ballou v. General Electric Company, 393 F.2d 398, 399 (1st Cir.1968). In general, pro se complaints brought under 42 U.S.C. § 1983, "however inartfully pleaded," are held to less stringent standards than are formal pleadings drafted by lawyers. Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 175, 66 L.Ed.2d 163 (1980). Courts need not, however, conjure up facts that are not pleaded to support conclusory allegations of the complaint. Hurney v. Carver, 602 F.2d 993, 995 (1st Cir.1979).

Plaintiff does not contend that his arrest was made without probable cause, and it will be assumed that he claims that his rights were violated in the course of a lawful arrest.

I.

Defendants argue that the Complaint fails to state a claim against Defendant Hayden because it does not allege that there was a deprivation of constitutional rights or that the deprivation complained of was caused by Trooper Hayden.

Specifically, Defendants argue, among other things, that the Complaint contains only conclusory allegations or subjective characterizations that are insufficient as a matter of law to state a claim. See Dewey v. University of New Hampshire, 694 F.2d 1 (1st Cir.1982). In Dewey, the First Circuit stated:

although we must ask whether the "claim" put forward in the complaint is capable of being supported by any conceivable set of facts, we insist that the claim at least set forth minimal facts, not subjective characterizations, as to who did what to whom and why.

Id. at 3. Plaintiff alleges in his Complaint that he was asleep in a wooded area when approached by Trooper Hayden:

After Plaintiff was awakened, Plaintiff was handcuffed behind his back forced to lay on his stomach, and State Police Trooper Dennis Hayden brought a trained state police dog named Skipper over to Plaintiff and had this state police dog bite Plaintiff in the rear part of his body, than sic Trooper Dennis Hayden took this dog Skipper off the Plaintiff, and than sic again Trooper Dennis Hayden put this dog Skipper back onto Plaintiff. This Trooper Dennis Hayden than put a gun to Plaintiff sic head and stated go ahead move, I'd love to blow your fucking head off, while Plaintiff was secured.

Whatever this account lacks in felicity of expression or elaboration of detail, it certainly contains a sufficiently specific and concrete description of the alleged abuse to meet the standard of Dewey. The clear inferences to be drawn from this account are that Trooper Hayden, acting under color of state law, after arresting and obtaining physical control of Plaintiff, intentionally unleashed a state police dog on Plaintiff, which inflicted injury upon Plaintiff.

II.

Defendants further argue, even assuming the truth of the facts alleged in Plaintiff's Complaint, that such actions do not constitute deprivations of any identifiable constitutional rights. They cite the decisions of the Supreme Court in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) and Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In Paul, the Supreme Court held that mere damage to reputation, actionable under state law, does not violate the Constitution and will not support a civil rights action under 42 U.S.C. § 1983. In Parratt, the Supreme Court held, inter alia, that a negligent deprivation of property does not violate the fourteenth amendment where a state tort remedy provides adequate "due process of law." Paul stated, and Parratt reaffirmed, that the fourteenth amendment is not "a font of tort law." Paul, 424 U.S. at 701, 96 S.Ct. at 1160. See also, Baker v. McCollan, 443 U.S. 137, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).

It has been widely held that use of excessive force in the course of a lawful arrest may constitute a constitutional deprivation. See, e.g., Soto v. City of Sacramento, 567 F.Supp. 662, 670-71 (E.D.Cal.1983) and cases cited therein. Often, courts fail to specify which constitutional right is implicated in such cases. Id. at 671. Some courts have found that use of excessive force violates the fourth amendment. Soto, 567 F.Supp. 662; Carter v. Carlson, 447 F.2d 358, 363 (D.C.Cir.1971), rev'd on other grounds sub nom. District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), reh'g denied, 410 U.S. 959, 93 S.Ct. 1411, 35 L.Ed.2d 694 (1973); Jenkins v. Averett, 424 F.2d 1228, 1232 (4th Cir.1970); Davis v. Murphy, 559 F.2d 1098, 1102 (7th Cir.1977). Some have found that it violates the fourteenth amendment. Soto, 567 F.Supp. at 673; Davis v. Murphy, 559 F.2d at 1102; United States v. Delerme, 457 F.2d 156, 161 (3d Cir.1972). Others have found that it violates the eighth amendment. Howell v. Cataldi, 464 F.2d 272, 281-82 (3d Cir.1972).

The doctrinal difficulties posed by the impact of the Supreme Court's holdings in Paul v. Davis, Parratt v. Taylor, and Baker v. McCollan upon actions under Section 1983 for the use of excessive force during a lawful arrest have not been authoritatively resolved by the Supreme Court. Circuit courts and district courts have applied a number of different standards to the determination of whether excessive force rises to the level of a constitutional deprivation. See, e.g., cases cited in Soto, 567 F.Supp. at 670-71; Annot., 60 A.L.R.Fed. 204, 209 (1982); Schiller v. Strangis, 540 F.Supp. 605, 613 (D.Mass.1982). The First Circuit has not had occasion to articulate such a standard.

There has been articulated, however, a minimum standard below which police conduct cannot fall if it is to conform to the due process clause of the fourteenth amendment. Some conduct is so offensive to "`those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses'" that it is a violation of due process. Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 208, 96 L.Ed. 183 (1952) (quoting Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 788-89, 89 L.Ed. 1029 (1945) (Frankfurter, J., concurring)). The Court, per Justice Frankfurter, explained:

Due process of law is a summarized constitutional guarantee of respect for those personal immunities which, as Mr. Justice Cardozo twice wrote for the Court, are "so rooted in the traditions and conscience of our people as to be ranked as fundamental," Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674, or are "implicit in the concept of ordered liberty." Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288.

Id. at 169, 72 S.Ct. at 208. In Rochin, the police had forcibly extracted the contents of the defendant's stomach in order to obtain capsules he had swallowed for use as evidence. The Court concluded that the police conduct "shocks the conscience" and was therefore violative of due process.

The standard set forth in Rochin for a substantive due process violation is still the law of this nation. See Baker v. McCollan, 443 U.S. 137, 147-49, 99 S.Ct. 2689, 2696-97, 61 L.Ed.2d 433 (1979) (Blackmun, J., concurring); see also, Roberts v. Marino, 656 F.2d 1112 (5th Cir.1981); Schiller v. Strangis, 540 F.Supp. 605 (D.Mass.1982). Application of "such a vague and discretionary standard" can be difficult. See Schiller, 540 F.Supp. at 616. Judge Friendly made one notable attempt to elucidate the substantive due process standard:

Not every push or shove, even if it may later seem unnecessary in the peace of a judge's chambers, violates a prisoner's constitutional rights. In determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline or maliciously and sadistically for the very purpose of causing harm.

Johnson v. Glick, 481 F.2d 1028, 1033 (2d Cir.1973); see also, Shillingford v. Holmes, 634 F.2d 263, 265 (5th Cir.1981).

Reading Plaintiff's Complaint with the generosity required in pro se civil rights...