Barstow v. Kennebec County Jail

• Decision Date: 22 August 2000
• Docket Number: No. CIV. 99-0261-B.,CIV. 99-0261-B.
• Citation: 115 F.Supp.2d 3
• Parties: Brent BARSTOW, Plaintiff, v. KENNEBEC COUNTY JAIL et al., Defendants.
• Court: U.S. District Court — District of Maine

Page 3

115 F.Supp.2d 3

Brent BARSTOW, Plaintiff, v. KENNEBEC COUNTY JAIL et al., Defendants.

No. CIV. 99-0261-B.

United States District Court, D. Maine.

August 22, 2000.

Brent Barstow, Albion, ME, pro se.

Michael J. Schmidt, Wheeler & Arey, P.A., Waterville, ME, for Defendants.

MEMORANDUM OF DECISION AND ORDER

GENE CARTER, District Judge.

This action involves the search of Plaintiff Brent Barstow's ("Barstow") prison cell and temporary seizure of some of his papers. Acting pro se, Barstow filed a six-count complaint against Bryan Lamoreau, Sheriff of Kennebec County, Gilbert Turcotte ("Turcotte"), a Detective with Kennebec County Sheriff's Office, and Nancy Reins, Wes Kieltyka, and Zackery Matthews, each individually and in their capacity as present or former County Commissioners of Kennebec County, and the County itself.¹ He claims that his rights were violated under 42 U.S.C. § 1983 (Count II) and the Maine Civil Rights Act, 5 M.R.S.A. § 4682 (Count I). He also brings claims for conversion (Count III), emotional distress (Count IV), relief under Maine statutory provisions relating to criminal mischief and theft (Count V), and punitive damages (Count VI). Defendants file a motion for summary judgment and/or judgment on the pleadings on all claims (Docket No. 10). For the following reasons, the Court GRANTS the motion with regard to Counts I and II, and, since no federal question remains in the case and the parties are not diverse, declines to exercise jurisdiction over the remaining state law claims (Counts III, IV, V, and VI). See 28 U.S.C. § 1367(c); see also Penobscot Indian Nation v. Key Bank of Maine, 112 F.3d 538, 564 (1st Cir.1997) ("We emphasize that the decision to retain or disclaim jurisdiction over the remaining state law claims at issue in this case lies in the broad discretion of the district court."); Carey on Behalf of Carey v. Maine School Administrative Dist. No. 17, 754 F.Supp. 906, 926-27 (D.Me.1990) ("In the present case, all of Plaintiffs' federal claims will be disposed of prior to trial. Thus, ... this Court is without jurisdiction over Plaintiffs' state law claims and must dismiss the claims without prejudice.").

STANDARD

Because the Court has considered the Statement of Material Facts and affidavits filed by Defendants,² the Court treats Defendants' Motion as one for summary judgment. See Fed.R.Civ.P. 12(c) ("If, on a motion for judgment on the pleadings, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.").

Summary judgment is appropriate when the record shows that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law. See Fed.R.Civ.P. 56(c). Once the moving party has come forward identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any" which "it believes demonstrate the absence of a genuine issue of material fact," the adverse party may avoid summary judgment only by providing properly supported evidence of disputed material facts that would require trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The trial court must "view the entire record in the light most hospitable to the party opposing summary judgment, indulging all reasonable inferences in that party's favor." Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990). The court will not, however, pay heed to "conclusory allegations, improbable inferences [or] unsupported speculation." Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir.1990). The role of the trial judge at the summary judgment stage "is not ... to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

BACKGROUND³

On October 22, 1997, Susan Mounce contacted Detective Turcotte to inform him that she and her family had received a warning that Barstow was planning possible retaliatory reprisals against them. Defendants' Statement of Material Facts ("DSMF") (Docket No. 11) ¶ 1; Ex. 1, Aff. and Request for Search Warrant of Gilbert Turcotte, dated Oct. 30, 1997 ("Turcotte Aff. # 1") ¶ 1; Ex. 2, Aff. of Gilbert Turcotte dated Feb. 28, 2000 ("Turcotte Aff. # 2") ¶ 2. On the following day, Detective Turcotte met with the Mounce family. DSMF ¶ 2; Turcotte Aff. # 2 ¶ 3. They informed him that Scott Giles ("Giles"), Susan Mounce's son, received a telephone call from Ervin Mace ("Mace"), who told Giles that Barstow had declared that he was going to make trouble for the Mounce family upon his release from Kennebec County Jail. Id. Turcotte knew that Barstow was married to the Mounces' daughter, Jill Mounce Barstow, and that Jill had applied for and received a Protection from Abuse Order against Brent Barstow. DSMF ¶ 3; Turcotte Aff. # 1 ¶ 6. Based on this information, Turcotte interviewed Ervin Mace and discovered that Mace had been a cellmate of Barstow for 22 days, and that Mace had heard Barstow talk about what he was going to do to the Mounce family. DSMF ¶ 4; Turcotte Aff. # 2 ¶ 5. Mace also informed Turcotte that Barstow kept notes on the Mounce family in his cell. Id. After talking with Mace, Turcotte formed the impression that Barstow was planning or conceiving some type of retaliatory action against the Mounce family. Id.

Turcotte then met with Deputy District Attorney Alan P. Kelly, who advised Turcotte that it would be appropriate to get a search warrant prior to conducting a search of Barstow's cell. DSMF ¶ 5; Turcotte Aff. # 2 ¶ 6. Based on the above evidence, Turcotte believed he had probable cause to conduct such a search. DSMF ¶ 6; Turcotte Aff. # 2 ¶ 7. Turcotte then prepared an affidavit and request for a search warrant, which a justice of the peace signed on October 30, 1997.⁴ DSMF ¶ 7; Turcotte Aff. # 2 ¶¶ 7-8. On that same day, Turcotte searched Barstow's cell at the Kennebec County Jail between 2:30 p.m. and 2:40 p.m. DSMF ¶¶ 8-9; Turcotte Aff. # 2 ¶ 8; Ex. 4, Items Seized Report. He removed from Barstow's cell two documents that contained the names of and/or information about the Mounce family, took them back to his office to review them, and determined that they did not contain any statements that constituted the crime of terrorizing. DSMF ¶¶ 10-11; Turcotte Aff. # 2 ¶¶ 9-11. After reviewing the documents, Turcotte returned the items to Sam Tlumak, a corrections officer presumably at the Kennebec County Jail, for return to Barstow. DSMF ¶ 12; Turcotte Aff. # 2 ¶ 12; Ex. 4, Items Seized Report.

DISCUSSION

In support of his section 1983 claim, Barstow asserts that Turcotte's search and seizure of the documents from his cell violated his rights pursuant to the Fourth, Sixth, and Fourteenth Amendments of the United States Constitution. On behalf of his claim under the Maine Civil Rights Act, Barstow argues that the same search and seizure violated sections 5 (governing search and seizure) and 6A (due process) of Article I of the Maine Constitution.⁵ In support of these claims, Barstow contends that there was no probable cause to search his cell for evidence that he had committed the crime of terrorizing. (See P.'s Objection to Def.'s Mot. for Summ. J. at 3).

The crime of terrorizing is defined by statute as follows:

A person is guilty of terrorizing if that person communicates to any person a threat to commit or to cause to be committed a crime of violence dangerous to human life, against the person to whom the communication is made or another, and the natural and probable consequence of such a threat, whether or not such consequence in fact occurs, is:

A. To place the person to whom the threat is communicated or the person threatened in reasonable fear that the crime will be committed.

See 17-A M.R.S.A. § 210. In finding probable cause, the justice of the peace did not need to find that Barstow actually committed the crime of terrorizing. See Illinois v. Gates, 462 U.S. 213, 244 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) ("[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.").⁶

The Court concludes that the totality of the circumstances support the justice of the peace's finding of probable cause. This conclusion is not based merely on Mace's statements to the Mounce family and Detective Turcotte about Barstow's possible retaliatory plans, but also upon Turcotte's verification that Barstow and Mace were cell mates for twenty-two days and Turcotte's knowledge that the Jill Barstow had previously secured a Protection from Abuse Order against Plaintiff. Since the warrant was valid, the Court finds no support for Barstow's allegation that his Fourth Amendment rights were violated.⁷ Therefore, to the extent that Barstow's section 1983 claim is based upon a finding that his Fourth Amendment rights were violated, it fails.⁸

Barstow also claims that Defendants violated his rights under the Due Process Clause of the Fourteenth Amendment. The justice of the peace's review of Turcotte's warrant application and issuance of a search warrant, however, satisfies any due process concerns stemming from this search. Even if the warrant was invalid, the Supreme Court in Hudson v. Palmer, 468 U.S. 517, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), held that "an unauthorized intentional deprivation of property by a state employee does not constitute a violation of the procedural requirements of the Due Process Clause of the Fourteenth Amendment if a meaningful postdeprivation [sic] remedy for the loss is available." Id. at 533, 104 S.Ct. 3194. This Court is not clear what remedy is in order for Turcotte's removal of some of Barstow's papers from his prison cell, since Barstow admits that the materials were sent back to his attorney...