Fonte v. Collins, Civ. No. 88-0267-P.

• Decision Date: 16 May 1989
• Docket Number: Civ. No. 88-0267-P.
• Citation: 713 F. Supp. 511
• Parties: Ronald FONTE, Plaintiff, v. John COLLINS, et al., Defendants.
• Court: U.S. District Court — District of Maine

713 F. Supp. 511

Ronald FONTE, Plaintiff, v. John COLLINS, et al., Defendants.

Civ. No. 88-0267-P.

United States District Court, D. Maine.

May 16, 1989.

Murrough H. O'Brien, Portland, Me., for plaintiff.

William J. Kayatta, Jr. and Pierce Atwood Scribner, Portland, Me., for defendants.

MEMORANDUM OF DECISION AND ORDER GRANTING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND REMANDING THE REMAINING ISSUES TO THE STATE COURT FOR FURTHER PROCEEDINGS

GENE CARTER, District Judge.

I. INTRODUCTION

The Court now considers Defendants' Motion for Summary Judgment, filed on March 17, 1989. Defendants, members of the Portland Police Department, bring this motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, claiming that there are no material issues of fact and that Defendants are entitled to judgment as a matter of law. Plaintiff's Complaint states four causes of action, three of which are based in state common law, with the fourth stating a violation of 42 U.S.C. section 1983. Plaintiff claims federal question jurisdiction under 28 U.S.C. section 1331, with pendent jurisdiction over the state claims.

For the reasons set out herein, the Court grants summary judgment for Defendant on Plaintiff's section 1983 claim. In the resulting absence of a federal claim, Plaintiff's basis for federal jurisdiction under 28 U.S.C. section 1331 fails. Accordingly, in the exercise of its discretion, the Court finds that it is without jurisdiction to hear the remaining state law claims, and remands these claims to the state courts for further proceedings.

II. FACTUAL BACKGROUND

The following facts are undisputed except as specifically indicated. On May 17, 1979, a decree was issued in the Cumberland County, Maine, District Court granting a divorce to Plaintiff Ronald Fonte and Irene Taylor Fonte, now Irene Ashjean. Ashjean was granted sole custody of their daughter, Adriene. Plaintiff was granted visitation rights at all reasonable and proper times. In recent years since the divorce, Adriene has lived with Ashjean in Lainsdown, Pennsylvania.

In 1986, Adriene, then ten years old, came to spend the summer with Plaintiff at his home on Long Island in Casco Bay. On or about August 14, 1986, Ashjean placed a telephone call from her Pennsylvania home to Plaintiff's home on Long Island and spoke with both former husband Plaintiff and daughter Adriene. The substance of these conversations is disputed. Defendant claims that Plaintiff told Ashjean that he did not plan to return Adriene to Ashjean at the end of the visitation period. Plaintiff claims that Adriene herself told Ashjean that she did not wish to return to Pennsylvania.

On August 16, 1986, Ashjean arrived in Portland after driving by car from her Pennsylvania home. Ashjean went directly to the Portland Police Department to request assistance in securing possession of Adriene. Defendants claim that Ashjean produced a certified copy of the divorce decree granting her sole custody of Adriene. Defendants also claim that Ashjean told Defendant Lieutenant Edward Guevin that Plaintiff threatened not to return Adriene, and that Plaintiff's previous behavior gave Ashjean reason to believe Plaintiff would carry out his threat. Plaintiff claims that the visitation period he had arranged with Ashjean for Adriene to stay in Maine was not to expire until August 23, 1989, and that Ashjean failed to relate this information to Defendant Guevin. Plaintiff claims that Ashjean's anxiety was caused by her conversation with Adriene, in which Adriene allegedly expressed reluctance to return to Pennsylvania, and that Plaintiff made no threats to keep Adriene with him past the August 23 return date upon which they had allegedly agreed.

In response to Ashjean's report, Defendant Guevin dispatched Defendants Sergeant John Collins and Officers Joseph Fagone and Steven Reece to accompany Ashjean to Long Island. Defendants claim they were sent to investigate whether Plaintiff was planning to hide Adriene from her custodial parent, and to check on Adriene's welfare. Plaintiff claims that Defendants were dispatched to retrieve Adriene and return her to her mother's custody.

Ashjean accompanied Defendants Collins, Fagone and Reece by police boat from Portland to Long Island, where they searched without success for Plaintiff and Adriene. On the return trip to Portland, Ashjean spotted Plaintiff's boat motoring toward Long Island.

From this point on, the facts are in dispute. Defendants claim that they activated the police siren and blue lights and pursued Plaintiff. Defendants allegedly had to give chase for three to four minutes, after which time Plaintiff stopped his boat and permitted Defendants to close the distance sufficiently to communicate with Plaintiff. Plaintiff claims simply that he stopped his boat as soon as he saw the police boat giving chase, and permitted Defendants to approach within communication distance. The boats were stopped in Hussey Sound, just off Long Island, where Defendants claim the swells were four to six feet. Plaintiff claims the swells were three to four feet.

Defendants claim at that point they communicated their desire to speak with Plaintiff and Adriene about Ashjean's custody concerns. Plaintiff claims that Defendants told him that they had a court order to pick up Adriene. Plaintiff offered to allow Defendants to transfer Adriene to their vessel, which Defendants allege they refused because of a perceived risk to Adriene in performing such an over-the-water exchange. It is undisputed that Adriene was not wearing a life preserver, but Plaintiff claims there were life preservers on board his vessel and that Adriene is an excellent swimmer.

Defendants ordered Plaintiff to proceed to the landing at Long Island. Defendants claim that Plaintiff "sped away" toward the landing, ahead of the police boat. Plaintiff agrees that he arrived ahead of the police boat but denies that he "sped away." He claims that no order was given to follow or accompany the police boat to the landing.

When Plaintiff's boat arrived at the landing, Adriene alighted from the vessel, onto the dock, and ran up the gangway onto the island. When the police boat arrived a few minutes later, Defendant Reece and Ashjean went ashore to find Adriene. Defendants claim that Defendant Reece and Ashjean found Adriene in a house on the island, sitting on a couch with four unidentified adult males. Defendants claim that Adriene told Defendant Reece and Ashjean that Plaintiff had instructed her to go there.

Defendants Fagone and Collins handcuffed Plaintiff and placed him under arrest. Plaintiff claims that Defendant Collins produced a piece of paper and stated that he had a court order to take possession of the child, and that Collins yelled at him for two minutes, calling him, among other things, a "terrible father." Defendants placed Plaintiff in the bow of the police boat and transported him to Portland. Defendant was charged with obstruction of government administration. That charge was dropped several months later.

On August 11, 1988, Plaintiff filed this action in the Superior Court in and for the County of Cumberland and State of Maine. Plaintiff's complaint names as Defendants Lieutenant Collins, Sergeant Guevin and Officers Fagone and Reece, and states four counts: Count I, violation of 42 U.S.C. section 1983; Count II, common law tortious assault; Count III, false imprisonment; and Count IV, malicious prosecution. Defendants petitioned for removal to this Court on September 22, 1988.

III. ANALYSIS

42 U.S.C. § 1983

Count I of Plaintiff's complaint states:

By their actions ... in arresting the Plaintiff without legal cause, in imprisoning or causing him to be imprisoned, in swearing out a judicial criminal complaint against him, and in interfering with and obstructing the divorce judgment of the Maine District Court, the Defendants violated the Plaintiff's federal constitutional rights as guaranteed to him under 42 U.S.C. Section 1983 ... Such conduct was willful, intentional reckless or grossly negligent.

Defendants move for summary judgment on this Count on the basis that Defendants are protected by qualified immunity from liability under section 1983.

In an action asserting liability under section 1983, the rule of qualified immunity shields government officials performing discretionary functions from personal liability for civil damages when "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982). Harlow establishes the standard as one of "objective reasonableness," and eliminates from consideration allegations about the official's subjective state of mind. Floyd v. Farrell, 765 F.2d 1, 4 (1st Cir.1985). An officer's qualified immunity is pierced only if there clearly was no probable cause at the time the arrest was made. Id. at 5.

According to this objective test, the question the Court must ask here is whether another officer, standing in Defendants' shoes and having the same information Defendants had, would reasonably have come to the conclusion that there was probable cause to arrest Plaintiff for obstruction of government administration. Id. 17-A M.R. S.A. section 751 says

a person is guilty of obstructing government administration if he uses force, violence, intimidation or engages in any criminal act with the intent to interfere with a public servant performing or purporting to perform an official function.

The Court has reviewed the elements required under section 751 to find a defendant guilty of obstructing government administration, and has determined that the elements required of a section 751 violation are lacking on the present record.

There is no question that the Defendant police officials were performing or purporting to perform an official function. 17-A M.R.S.A. ...