Connors v. Town of Brunswick, Civil No. 99-331-P-C (D. Me. 8/16/2000), Civil No. 99-331-P-C.

• Decision Date: 16 August 2000
• Docket Number: Civil No. 99-331-P-C.
• Parties: DONNA CONNORS, Plaintiff, v. THE TOWN OF BRUNSWICK, SHAWN T. O'LEARY, MARK A. PHILLIPS and JERRY HINTON, Defendants.
• Court: U.S. District Court — District of Maine

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DONNA CONNORS, Plaintiff, v. THE TOWN OF BRUNSWICK, SHAWN T. O'LEARY, MARK A. PHILLIPS and JERRY HINTON, Defendants.

Civil No. 99-331-P-C.

United States District Court, D. Maine.

August 16, 2000.

ELIZABETH A. GERMANI, Esq., JENNIFER S. RIGGLE, ESQ. and KIERAN N. SHIELDS, ESQ., GERMANI & RIGGLE, LLC, PORTLAND, ME, for DONNA CONNORS, as Personal Representative for the Estate of Richard Weymouth plaintiff.

THOMAS V. LAPRADE, ESQ., LAMBERT, COFFIN, RUDMAN & HOCHMAN, PORTLAND, ME, for TOWN OF BRUNSWICK; SHAWN T. O'LEARY, Individually and In His Capacity as Police Officer for the Town of Brunswick; MARK A PHILLIPS, Individually and in His Capacity as a Police Office of the Town of Brunswick; BRUNSWICK POLICE CHIEF, defendant.

RECOMMENDED DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

DAVID M. COHEN, Judge.

The Town of Brunswick (the "Town"), Shawn T. O'Leary, Mark A. Phillips and Jerry Hinton seek summary judgment as to all counts against them in this civil-rights action brought by Donna Connors as personal representative of the estate of Richard Weymouth, who was shot and fatally wounded by police in Brunswick, Maine on November 6, 1997. Motion for Summary Judgment ("Defendants' Motion") (Docket No. 11); Complaint and Demand for Jury Trial ("Complaint") (Docket No. 1). For the reasons that follow, I recommend that the Defendants' Motion be granted in part and denied in part.

I. Summary Judgment Standards

Summary judgment is appropriate only if the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "In this regard, `material' means that a contested fact has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant. . . .

By like token, `genuine' means that `the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party. . . .'" McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995) (citations omitted). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Cadle Co. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, "the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trialworthy issue." National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995) (citing Celotex, 477 U.S. at 324); Fed.R.Civ.P. 56(e). "This is especially true in respect to claims or issues on which the nonmovant bears the burden of proof." International Ass'n of Machinists & Aerospace Workers v. City of LewistonWinship Green Nursing Ctr., 103 F.3d 196, 200 (1st Cir. 1996) (citations omitted).

II. Factual Context

The summary judgment record, with bona fide conflicts resolved in the light most favorable to the plaintiff, reveals the following regarding the events leading to the filing of the instant complaint:

On November 6, 1997 Sergeant Mark Phillips and Patrolman Shawn O'Leary of the Brunswick Police Department (the "Department") received a call from the police dispatcher telling them to respond to a disturbance and possible assault at 29 High Street, where paramedics were also being sent. Statement of Material Facts on Which There Is No Genuine Dispute ("Defendants' SMF") (Docket No. 13) ¶ 1; Plaintiff's Opposing Statement of Material Facts in Dispute in Opposition to Defendants' Motion for Summary Judgment ("Plaintiff's SMF") (Docket No. 20) ¶ 1. Phillips and O'Leary understood that a 911 call had been made for an ambulance because Richard Weymouth had been pushed out of his wheelchair and needed assistance getting back into it. Plaintiff's SMF ¶ 1; Defendants' Reply to Plaintiff's Statement of Material Facts ("Defendants' Reply SMF") (Docket No. 27) at 1.

Weymouth was paralyzed from the rib cage down. Plaintiff's SMF ¶ 38; Defendants' Reply SMF ¶ 38. He was missing one leg, was wheelchair-bound and was unable to walk or voluntarily move his body from the chest down. Id. He was not able to raise himself out of his chair by placing his weight on his one remaining foot. Id. The apartment at 29 High Street, which was leased to Raymond Bernier, consisted of a kitchen area measuring only 15" by 12" feet and an attached bedroom measuring only 15" by 12" feet. Defendants' SMF ¶¶ 3-4; Plaintiff's SMF ¶¶ 3-4.

While Phillips and O'Leary were en route to 29 High Street, a dispatcher told Phillips that there was an outstanding warrant for Weymouth's arrest with no bail. Defendants' SMF ¶ 2; Plaintiff's SMF ¶ 2. When the officers entered the apartment, Weymouth, whom O'Leary understood to have been the victim of the disturbance to which the police were responding, appeared to have had his face beaten. Defendants' SMF ¶ 5; Plaintiff's SMF ¶ 5; Defendants' Reply SMF at 2. Wet blood was on the bridge of his nose, and his face was puffy. Defendants' SMF ¶ 5; Plaintiff's SMF ¶ 5. The smell of alcohol filled the air. Defendants' SMF ¶ 6; Plaintiff's SMF ¶ 6.¹ Cherie Andrews also was present in the apartment. Defendants' SMF ¶ 4; Plaintiff's SMF ¶ 4.

The three people in the apartment were not unknown to O'Leary and Phillips. Defendants' SMF ¶ 7; Plaintiff's SMF ¶ 7. O'Leary and Phillips were well aware, from their previous interactions with Weymouth, that he was confined to a wheelchair and had physical limitations. Plaintiff's SMF ¶ 40; Defendants' Reply SMF ¶ 40. O'Leary knew in addition that Weymouth had been arrested for reckless conduct with a firearm, had caused disturbances on the streets of Brunswick through loud and disorderly conduct while intoxicated and was bitter toward the police, tending to blame them for a lot of his problems. Defendants' SMF ¶ 7; Plaintiff's SMF ¶ 7. He understood that Weymouth was in a wheelchair as a result of being shot while attempting the armed robbery of Dicky Stewart, a former police officer. Id.² O'Leary nonetheless had had no physical confrontations with Weymouth in his previous dealings with him. O'Leary Interview at 38. In fact, his previous interactions with Weymouth had been "positive." Plaintiff's SMF ¶ 47; Defendants' Reply SMF ¶ 47. O'Leary knew Bernier and Andrews to be alcoholics. Defendants' SMF ¶ 7; Plaintiff's SMF ¶ 7.

Phillips had occasionally picked up Weymouth when Phillips worked part time as a cab driver, during which times Weymouth usually was intoxicated. Id. Phillips knew that Weymouth was strong enough to lift himself out of his wheelchair into the back of the cab without assistance; Weymouth appeared to him "to have a lot of upper body strength." Id. Phillips also had previously encountered Weymouth when he assisted in arresting him for firing gun shots at the windows of the house of Kenny Maxwell on Maine Street in Brunswick. Id. He believed, based on newspaper accounts, that Weymouth had lost his leg while involved in an armed robbery. Id.³ However, on the previous occasions on which Phillips had dealt directly with Weymouth in Phillips' capacity as a police officer, Weymouth was not violent. Deposition of Mark A. Phillips ("Phillips Dep."), attached to Defendants' SMF, at 35. Phillips had dealt with Andrews and Bernier on numerous prior occasions, Bernier because of his alcoholism and Andrews through her involvement with the Kenny Maxwell incident and because "she was constantly calling the police department and harassing us." Defendants' SMF ¶ 7; Plaintiff's SMF ¶ 7.

Weymouth had no violent criminal history with the Department and no criminal convictions post-dating 1982. Plaintiff's SMF ¶ 45; Defendants' Reply SMF ¶ 45. In addition, Weymouth was not involved in an attempted robbery when shot by Richard Stewart on October 16, 1966. Affidavit of Donna Connors, Submitted in Support of Her Opposition to Motion for Summary Judgment ("Connors Aff.") (Docket No. 21) ¶¶ 6-8.⁴

After arriving and entering the apartment O'Leary told Weymouth that there was an outstanding warrant for his arrest for failing to appear in court to respond to a charge of operating a vehicle under the influence of alcohol. Defendants' SMF ¶ 8; Plaintiff's SMF ¶ 8. O'Leary then began to call dispatch to confirm details of the warrant and asked Phillips if there was any bail. Defendants' SMF ¶ 9; Plaintiff's SMF ¶ 9. When Phillips replied that there was none, Weymouth asked to be taken to Togus Veterans' Hospital. Plaintiff's SMF ¶ 10; Defendants' Reply SMF ¶ 10.⁵ The officers refused. Videotaped Deposition of Raymond A. Bernier ("Bernier Dep."), attached to Plaintiff's SMF, at 34-35. O'Leary and Phillips then noticed that Weymouth was holding an eight-to ten-inch-long knife. Deposition of Shawn T. O'Leary ("O'Leary Dep."), attached to Defendants' SMF, at 109, 115, 118; Phillips Dep. at 50, 55.

Once O'Leary and Phillips saw the knife they immediately retreated as they were trained to do away from the east wall of the apartment back toward the refrigerator, Phillips to the southwest corner of the kitchen and O'Leary to the threshold between the kitchen and bed/living room. Defendants' SMF ¶ 12; Plaintiff's SMF ¶ 12.⁶ Both officers immediately drew their firearms when they saw the knife. Defendants' SMF ¶ 13; Plaintiff's SMF ¶ 13.⁷ In O'Leary's estimation the retreat put only eight to eleven feet between Weymouth and himself; Andrews and Bernier testified that O'Leary was ten to fifteen feet away from Weymouth when he shot him. O'Leary Dep. at 116; Deposition of Cherie Ann Andrews ("Andrews Dep."), attached to Plaintiff's SMF, at 28-29; Bernier Dep. at 19-20.⁸

O'Leary...