Briand v. Lavigne

• Decision Date: 14 August 2002
• Docket Number: No. CIV.NH 02-77-JD.,No. CIV.ME 02-40-P-H.,CIV.ME 02-40-P-H.,CIV.NH 02-77-JD.
• Parties: John BRIAND, Plaintiff, v. Kevin L. LAVIGNE, Defendant.
• Court: U.S. District Court — District of Maine

223 F.Supp.2d 241

John BRIAND, Plaintiff, v. Kevin L. LAVIGNE, Defendant.

No. CIV.ME 02-40-P-H.

No. CIV.NH 02-77-JD.

United States District Court, D. Maine.

August 14, 2002.

John Briand, Hooksett, NH, plaintiff pro se.

T. David Plourde, U.S. Attorney's Office, Concord, NH, for Kevin L. Levigne, defendant.

James Starr, Clerk, Office of the Clerk, Warren B. Rudman U.S. Courthouse, Concord, NH, for Labels, notice only.

ORDER AFFIRMING RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

HORNBY, Chief Judge.

The United States Magistrate Judge filed with the court on July 22, 2002, with copies to the parties, her Recommended Decision on Motion to Dismiss. The time within which to file objections expired on August 8, 2002, and no objections have been filed. The Magistrate Judge notified the parties that failure to object would waive their right to de novo review and appeal.

It is therefore ORDERED that the Recommended Decision of the Magistrate Judge is hereby ADOPTED. The defendant Lavigne is GRANTED SUMMARY JUDGMENT on Count V of the Petition and the remaining five counts are DISMISSED WITH PREJUDICE.

SO ORDERED.

RECOMMENDED DECISION ON MOTION TO DISMISS

KRAVCHUK, United States Magistrates Judge.

John Briand has filed a six-count complaint alleging that his United States Probation Officer, Kevin Lavigne, violated his civil rights in interactions he had with Briand concerning Briand's probationary court-ordered substance abuse/mental health counseling. (Docket No. 1.) Lavigne has responded with a motion seeking dismissal or, in the alternative, summary judgment. (Docket No. 15.)¹ For the following reasons I recommend that the court DISMISS with prejudice five counts because the statutes Briand relies upon do not create rights that are enforceable by individuals and GRANT Lavigne summary judgment on the remaining count which is premised principally on the Fourth Amendment and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971).²

DISCUSSION

A. Counts Amenable to Dismissal

1. Standard for Motion to Dismiss

In viewing Lavigne's motion to dismiss I,

must take as true "the well-pleaded facts as they appear in the complaint, extending [the] plaintiff every reasonable inference in his favor." Coyne v. City of Somerville, 972 F.2d 440, 442-43 (1st Cir.1992) (citing Correa-Martinez v. Arrillaga-Belendez, 903 F.2d 49, 51 (1st Cir.1990)). A complaint should not be dismissed under Federal Rule of Civil Procedure 12(b)(6) unless "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir.1987) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).

Medina-Claudio v. Rodriguez-Mateo, 292 F.3d 31, 34 (1st Cir.2002).

2. Counts I, II, III, IV, and VI: Congress Did Not Create Privately Enforceable Rights Under the Statutes Upon Which Briand Relies

There are two initial clarifications required as a consequence of the manner in which Briand postures these claims. In the title of his complaint Briand expressly frames his action as one seeking remedies under Bivens and 42 U.S.C. § 1983. Lavigne is a United States Probation Officer and thus, to the extent he was acting under the authority of his position he was acting under color of federal law. With respect to alleged constitutional violations this is properly characterized as a Bivens action. 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619. See also Day v. Mass. Air Nat'l Guard, 167 F.3d 678, 683 (1st Cir. 1999) (observing that Bivens comprehends constitutional violations under color of federal law, while § 1983 offers redress for constitutional violations under color of state law).

Second, with respect to the counts that allege violation of his rights under federal statutes, Briand, unlike § 1983 plaintiffs, does not need to cite Bivens as a vehicle to press the rights he identifies as established by the statutes. On this point I note that while in the past the United States Supreme Court has found a distinction of significance between actions directly under a federal statute and those seeking § 1983 relief for rights identified in a statute, this term it offered the following clarification vis-à-vis this facet of my inquiry:

[T]he initial inquiry — determining whether a statute confers any right at all — is no different from the initial inquiry in an implied right of action case, the express purpose of which is to determine whether or not a statute "confer[s] rights on a particular class of persons." California v. Sierra Club, 451 U.S. 287, 294, 101 S.Ct. 1775, 68 L.Ed.2d 101 (1981). This makes obvious sense, since § 1983 merely provides a mechanism for enforcing individual rights "secured" elsewhere, i.e., rights independently "secured by the Constitution and laws" of the United States. "[O]ne cannot go into court and claim a `violation of § 1983' — for § 1983 by itself does not protect anyone against anything." Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979).

A court's role in discerning whether personal rights exist in the § 1983 context should therefore not differ from its role in discerning whether personal rights exist in the implied right of action context. Both inquiries simply require a determination as to whether or not Congress intended to confer individual rights upon a class of beneficiaries. Accordingly, where the text and structure of a statute provide no indication that Congress intends to create new individual rights, there is no basis for a private suit, whether under § 1983 or under an implied right of action.

Gonzaga Univ. v. Doe, ___ U.S. ___, 122 S.Ct. 2268, 2276-77, 153 L.Ed.2d 309 (2002) (citations omitted from second paragraph). See also id. at 2275 ("[W]e ... reject the notion that our implied right of action cases are separate and distinct from our § 1983 cases. To the contrary, our implied right of action cases should guide the determination of whether a statute confers rights enforceable under § 1983.").

These preliminary concerns properly framed, I also find Gonzaga University helpful in setting the stage for my examination of the statutes at hand for a determination as to whether or not Congress intended to confer a private right of action on individuals benefited by the statutes. The Gonzaga University majority opinion begins by "reject[ing] the notion that [prior Supreme Court] cases permit anything short of an unambiguously conferred right to support a cause of action brought under § 1983." Id. at 2275. It elaborated:

Section 1983 provides a remedy only for the deprivation of "rights, privileges, or immunities secured by the Constitution and laws" of the United States. Accordingly, it is rights, not the broader or vaguer "benefits" or "interests," that may be enforced under the authority of that section.

Id. The Court stressed that "`rights-creating'" language was "critical to showing the requisite congressional intent to create new rights." Id. at 2277.

Though Lavigne views all of Briand's counts as turning on alleged violations of 42 U.S.C. § 290dd-2³ and argues only on this score, only Counts II, III, and IV are tethered to that statutory provision. In Count I, Briand asserts that Lavigne violated rights conferred on Briand by 42 U.S.C. § 9501. In Count VI Briand contends that Lavigne's actions ran afoul of a criminal statute, 18 U.S.C. § 241. Thus, I proceed to analyze these three distinct statutory provisions to determine if they are "right creating" and, therefore, create an implied right of action.

a. Count I: 42 U.S.C. § 9501/42 U.S.C. § 10841

Title 42 contains two statements of a "bill of rights" for individuals "admitted to a program or facility for the purpose of receiving mental health services." 42 U.S.C. §§ 9501(1), 10841(1). Section 9501, entitled simply "Bill of Rights," was enacted as part of title 42's "Mental Health Systems" chapter; section 10841 is entitled "Restatement of Bill of Rights for Mental Health Patients," and is in the "Protection and Advocacy for Mentally Ill Individuals" chapter of title 42. As the First Circuit recognized in Monahan v. Dorchester Counseling Center, Inc., 961 F.2d 987 (1st Cir.1992), § 10841 is a 1986 restatement of § 9501 that uses almost exactly the same language as § 9501. Monahan, 961 F.2d at 994.

Section 10841 of title 42 begins with the following paragraph:

It is the sense of the Congress that, as previously stated in title V of the Mental Health Systems Act [42 U.S.C.A. § 9501 et seq.], each State should review and revise, if necessary, its laws to ensure that mental health patients receive the protection and services they require, and that in making such review and revision, States should take into account the recommendations of the President's Commission on Mental Health[.]

§ 10841 (bracketed statutory reference in original). It then specifies that the states should admitted individuals a host of rights, the one relevant to Briand's action being "[t]he right to confidentiality of such person's records." § 10841(1)(H).

Two other provisions of this subchapter are of import to this right of action analysis. First, § 10851(a) provides that this subchapter "shall not be construed as establishing any new rights for individuals with mental illness." § 10851(a). Second, "the term `individual with mental illness' has the same meaning as in section 10802( [4]⁴)." § 10851(b). Section § 10802(4) provides:

(4) The term "individual with mental illness" means, except as provided in section 10804(d) of this title, an individual —

(A) who has a significant mental illness or emotional impairment, as determined by a mental health professional qualified under the laws and regulations of the State; and

(B)(i)(I) who is an inpatient or resident in a facility rendering care or treatment, even if the whereabouts of ...