Johnson v. City of Biddeford

• Docket Number: 2:17-cv-00264-JDL
• Decision Date: 30 March 2023
• Citation: 665 F.Supp.3d 82
• Parties: Susan JOHNSON, individually and on behalf of her minor son B.L., and on behalf of Derrick Thompson, deceased; and Jocelyne Welch, as personal representative of the Estate of Alivia Welch, Plaintiffs, v. CITY OF BIDDEFORD, et al., Defendants.
• Court: U.S. District Court — District of Maine

665 F.Supp.3d 82

Susan JOHNSON, individually and on behalf of her minor son B.L., and on behalf of Derrick Thompson, deceased; and Jocelyne Welch, as personal representative of the Estate of Alivia Welch, Plaintiffs, v.CITY OF BIDDEFORD, et al., Defendants.

2:17-cv-00264-JDL

United States District Court, D. Maine

Signed March 30, 2023

Kristine C. Hanly, Garmey Law, Portland, ME, for Plaintiffs.

Joseph A. Padolsky, Pro Hac Vice, Douglas I. Louison, Louison Costello Condon & Pfaff, LLP, Boston, MA, for DefendantsRoger P. Beapure, Edward Dexter.

ORDER ON DEFENDANTS' RENEWED MOTION FOR SUMMARY JUDGMENT

JON D. LEVY, CHIEF UNITED STATES DISTRICT JUDGE

This case returns to the District Court after a remand from the United States Court of Appeals for the First Circuit entered on August 27, 2021(ECF Nos. 101, 102), and the subsequent filing of a Renewed Motion for Summary Judgment by the remaining Defendants, the City of Biddeford, Biddeford Police Chief Roger P. Beaupre, and Biddeford Police Officer Edward Dexter(ECF No. 113).

I.INTRODUCTION

On December 29, 2012, James Pak, a landlord in Biddeford, argued with his tenants, Susan Johnson and her son Derrick Thompson, as well as Thompson's girlfriend, Alivia Welch, about the number of cars that they were allowed to park in the property's driveway.The argument escalated: Pak made threats and Thompson, at his mother's request, called 9-1-1.Biddeford Police Officer Edward Dexter arrived on the scene, and he spoke with Johnson, Thompson, and Welch (collectively, "the tenants"¹).He then spoke separately with Pak² and Pak's wife Armit Pak in their residence, and Pak made a number of violent threats against the tenants during his conversation with Officer Dexter.Officer Dexter then met again with the tenants in their apartment attached to the Paks' residence.Officer Dexter explained to the tenants that there was not much he could do about the parking situation because it was a "civil issue" and he advised them to use caution.ECF No. 78at 24, ¶ 47.Minutes after Officer Dexter left the scene, Pak entered the tenants' apartment and shot Johnson, Thompson, and Welch.The attack killed Thompson and Welch and seriously wounded Johnson.Pak was arrested and ultimately pleaded guilty to two counts of homicide.

Johnson, on her own behalf and that of her minor son, B.L., and as personal representative of the Estate of Derrick Thompson, and Jocelyne Welch, as personal representative of the Estate of Alivia Welch(collectively, "the Plaintiffs"), bring this action³ against the Defendants, including Officer Dexter, the City of Biddeford, and Police Chief Roger P. Beaupre.The Plaintiffs bring claims under 42 U.S.C.A. § 1983(West 2022) and the Maine Civil Rights Act, 5 M.R.S.A. § 4682(1-A)(West 2022).In their Complaints, the Plaintiffs allege that Officer Dexter violated the tenants' Fourteenth Amendment substantive due process rights and request that he be held liable in both his individual and official capacities.The Plaintiffs further allege that the City of Biddeford should be held liable for the violation of the tenants' substantive due process rights under the doctrine established by Monell v. Department of Social Services,436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611(1978), and that Police Chief Roger P. Beaupre should be held liable in his individual and official capacities.⁴

II.PROCEDURAL HISTORY

The Defendants first moved for summary judgment in June 2019(ECF No. 66), contending, among other things, that there were no genuine disputes of material fact as to whether they could be held liable for the injuries caused by Pak because the Plaintiffs had failed to show that their rights had been violated under the state-created danger doctrine.After a hearing, I issued an Order granting the Defendants' Motion for Summary Judgment(ECF No. 88).SeeJohnson v. City of Biddeford,454 F. Supp. 3d 75, 95(D. Me.2020).The Plaintiffs appealed to the First Circuit (ECF Nos. 90, 95), which, with one Judge dissenting, affirmed the judgment in part and vacated and remanded the judgment in part (ECF Nos. 101, 102).SeeWelch v. City of Biddeford Police Dep't,12 F.4th 70, 72(1st Cir.2021).Specifically, the First Circuit vacated and remanded the grant of summary judgment as to the section 1983andMaine Civil Rights Act claims against Officer Dexter in his individual and official capacities, the claims against Chief Beaupre in his individual and official capacities, and the Monell claims against the City of Biddeford.Id. at 77-78.The First Circuit affirmed the grant of summary judgment in all other respects, including the grant of summary judgment with respect to Officer Jacob Wolterbeek.Id. at 78.

In its decision, the First Circuit noted that my order granting summary judgment preceded the First Circuit's decision in Irish v. Fowler("Irish II"), 979 F.3d 65(1st Cir.2020), which laid out the elements that a plaintiff must prove in order for government defendants to be held liable under the state-created danger doctrine for having increased the danger of third-party violence.Welch,12 F.4th at 76.The First Circuit identified several factors, drawn from Irish II, that would be relevant to the state-created danger analysis in this case, but it did not reach the merits of the Plaintiffs' argument that Officer Dexter violated the tenants' substantive due process rights.Id. at 76-77.The Court indicated that I "should address on remand whether Officer Dexter is entitled to qualified immunity and may choose to address the second step of the qualified immunity inquiry before addressing whether Officer Dexter violated the plaintiffs' substantive due process rights under the state-created danger doctrine."Id. at 77.

After remand, the remaining Defendants filed a Renewed Motion for Summary Judgment(ECF No. 113), supported by a separate memorandum of law (ECF No. 114).The Plaintiffs filed a Response in Opposition (ECF No. 118), and the Defendants filed a Reply (ECF No. 119).The Plaintiffs also filed an Addendum to their Additional Statements of Material Facts (ECF No. 108), to which the Defendants replied (ECF No. 109).

Two hearings were held on the Renewed Motion for Summary Judgment, with the first being held on July 27, 2022(ECF No. 121).Following that hearing, I directed the parties to submit additional memoranda addressing decisions from outside the First Circuit "that demonstrate whether it was clearly established in December 2012 that the state-created danger doctrine applied to claims based on an officer's decision to withdraw from a situation in which serious threats of violence had been made by a third-party, without taking effective action to protect or warn the targets of those threats."ECF No. 122at 2.In late summer and fall of 2022, the parties submitted the requested memoranda (ECF Nos. 123, 127, 130).

The second hearing was held on October 21, 2022(ECF No. 131).Because the parties' Statements of Material Facts did not capture all of the relevant conversations recorded by the WatchGuard recording system on Officer Dexter's person, I directed the parties to submit an agreed-to transcript of the audio recordings of the events of December 29, 2012.On December 12, 2022, the parties submitted the transcript (ECF No. 134), which they agree is, in almost all respects, an accurate transcription.⁵SeeECF No. 134at 1.

For the reasons that follow, I grant the Defendants' Renewed Motion for Summary Judgment.

III.FACTUAL BACKGROUND

At the summary judgment stage, the facts are viewed in the light most favorable to the Plaintiffs as the non-moving party.SeeBienkowski v. Ne. Univ.,285 F.3d 138, 140(1st Cir.2002).I previously set forth the relevant facts in my original order granting summary judgment.⁶SeeJohnson,454 F. Supp. 3d at 81-83.I revisit those facts here because the Plaintiffs have filed an Addendum to their Statement of Additional Material Facts since the remand.The following facts are primarily drawn from the parties' original Statements of Material Facts and responses thereto (ECF Nos. 68, 78, 84), the Plaintiffs' Addendum to their Additional Statements of Material Facts (ECF Nos. 108), and the Defendants' Response to the Addendum (ECF No. 109).Some facts are also drawn from the agreed-to portions of the transcript (ECF No. 134).However, the parties disagree as to the accuracy of several portions of the transcript, seesupra n.5, and they agree that the transcript does not constitute evidence in this case.I therefore disregard the disputed portions of the transcript and rely only on the portions to which the parties have agreed.

A.The Events of December 29, 2012

Susan Johnson and Derrick Thompson leased an apartment in Biddeford from the Paks.The apartment was attached to the Paks' residence, and the entryways to the two units were close to one another.On the evening of December 29, 2012, Thompson was outside shoveling snow when Pak appeared and began arguing with him about the number of cars that the tenants were permitted to park in the driveway of the property.After Pak made threatening hand gestures in the shape of a gun and said "Bang," Johnson, who had videotaped a portion of the argument on her smart phone, directed Thompson to call the police.Thompson called 9-1-1 and told the dispatcher that his landlord was "freaking out" on him, making death threats, and had made gestures toward him in the shape of a gun.ECF No. 78at 3, ¶ 7.After Thompson made the call, Thompson, Johnson, and Alivia Welch waited inside the apartment for the police to arrive.

Biddeford Police Officer Edward Dexter responded to the call.He was equipped with an operating WatchGuard recording system on his person.Officer Dexter spoke first with Johnson, Thompson, and Welch in their apartment.Thompson told Officer Dexter that Pak had started screaming at him about the number of cars parked in the driveway while Thompson had been shoveling snow and...