Jordan v. Town of Waldoboro, 112719 FED1, 18-2062

Docket Nº:18-2062
Opinion Judge:KAYATTA, CIRCUIT JUDGE.
Party Name:SCOTT JORDAN, JR., Plaintiff, Appellant, v. TOWN OF WALDOBORO; WILLIAM LABOMBARDE, Waldoboro Chief of Police; LAWRENCE W. HESSELTINE, JR., Waldoboro Police Officer; JEFFERY FULLER, Waldoboro Police Officer; ANDREW SANTHESON, Waldoboro Police Officer, Defendants, Appellees, WALDOBORO POLICE DEPARTMENT, Defendant.
Attorney:Karen Wolfram, with whom Fairfield & Associates, P.A. was on brief, for appellant. Kasia S. Park, with whom Edward R. Benjamin, Jr. and Drummond Woodsum were on brief, for appellees.
Judge Panel:Before Howard, Chief Judge, Kayatta and Barron, Circuit Judges. BARRON, Circuit Judge, concurring.
Case Date:November 27, 2019
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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SCOTT JORDAN, JR., Plaintiff, Appellant,

v.

TOWN OF WALDOBORO; WILLIAM LABOMBARDE, Waldoboro Chief of Police; LAWRENCE W. HESSELTINE, JR., Waldoboro Police Officer; JEFFERY FULLER, Waldoboro Police Officer; ANDREW SANTHESON, Waldoboro Police Officer, Defendants, Appellees,

WALDOBORO POLICE DEPARTMENT, Defendant.

No. 18-2062

United States Court of Appeals, First Circuit

November 27, 2019

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. John H. Rich III, U.S. Magistrate Judge]

Karen Wolfram, with whom Fairfield & Associates, P.A. was on brief, for appellant.

Kasia S. Park, with whom Edward R. Benjamin, Jr. and Drummond Woodsum were on brief, for appellees.

Before Howard, Chief Judge, Kayatta and Barron, Circuit Judges.

KAYATTA, CIRCUIT JUDGE.

Scott M. Jordan ("Senior"), his health failing, executed a Power of Attorney (POA) authorizing his son, Scott M. Jordan, Jr. ("Jordan"), to take control and dispose of Senior's property in any way Senior might do were he able. Unhappy with Jordan's subsequent decisions concerning his property, Senior revoked the POA and complained to the Waldoboro Police Department. Waldoboro Police Officers obtained a warrant to search Jordan's home for Senior's property, and after finding Senior's property there, arrested Jordan for theft. The district attorney dismissed the criminal prosecution after Senior died.

Jordan brought this civil rights action against the Town of Waldoboro, the Waldoboro Police Department, and several Waldoboro Police Officers. He alleged that the affidavit accompanying the search warrant contained intentional or reckless omissions and misstatements of fact, that an accurate affidavit would not have supported probable cause for the search of his home, and that there was no probable cause for his arrest. A magistrate judge, sitting as the district court with the consent of the parties, granted summary judgment for the defendants, dismissing all of Jordan's claims. Jordan timely appealed to this court. For the following reasons, we reverse in part and affirm in part.

I.

In this appeal from the entry of summary judgment, we take the facts in the light most favorable to Jordan. See Staples v. Gerry, 923 F.3d 7, 14 (1st Cir. 2019).

Jordan was employed in the corrections division of the Cumberland County Sheriff's office. As of May 2014, Senior was living independently at his home in Waldoboro, Maine, while Jordan and Jordan's daughter lived together in Standish, Maine. Jordan and Senior made plans for Senior to move in with Jordan and his daughter. They agreed that, in anticipation of the move, Jordan would help fix up Senior's home and sell some of Senior's property so that Senior's home could be rented or sold.

On May 12, 2014, Senior was taken by ambulance to the hospital, where he was admitted for progressive confusion. After improving, Senior was discharged on May 23, 2014, but the next day he was "[u]nresponsive" and "not able to provide any answers to questions" and returned to the hospital. Senior was in and out of the hospital through July of 2014.

In accordance with Senior and Junior's plan for Junior to sell some of Senior's property, on May 15, 2014, during Senior's initial hospitalization, Senior directed his attorney to draft an Appointment of Agent Financial Power of Attorney appointing Jordan as his agent and attorney-in-fact. Senior executed the POA before a witness and a notary public. The notary public noted that Senior was "alert and oriented." The POA granted Jordan "full power to exercise or perform any act, power, duty, right, or obligation whatsoever . . . relating to any person, matter, transaction, or property, real or personal, tangible, intangible, or mixed, now owned or hereafter acquired by [Senior], as [Senior] might or could do if personally present." It listed "by way of example" several "specifically enumerated powers" that did not limit the broad authority quoted above. One of those enumerated powers was to "make gifts of any property . . . as [Jordan] may consider advisable or appropriate, which gifts may be made to or for the benefit of [Jordan]." Another was to sell "any property whatsoever," "or any right or interest thereon, or any part thereof, upon such terms as [Jordan] shall think proper."

Central to this case are Senior's complaints about the actions Jordan took pursuant to the POA. Acting as Senior's agent and attorney-in-fact, Jordan either transferred to himself or sold much of Senior's personal property, and he also withdrew money from Senior's accounts. Jordan maintained that he took these actions in accordance with the plan he and Senior had developed and in order to facilitate and fund his efforts to take care of his father. Senior claimed that Jordan acted contrary to his wishes.

On July 27, 2014, while out of the hospital, Senior reported to the Waldoboro Police Department that Jordan had assaulted him. Defendant Andrew Santheson, a Waldoboro Police Officer, spoke to Jordan over the phone. Jordan said the dispute began with an argument over Jordan's decision to register Senior's truck in Jordan's name. Neither party desired criminal prosecution of the other, and neither provided a statement, so Santheson investigated no further.

Senior took no steps to revoke the POA until July 31, 2014, when he sent Jordan a notice of revocation. That day, and in the week or so following, Senior made several demands that Jordan explain or undo the actions he took under the POA. Of relevance here, Senior demanded: (1) the return of his truck; (2) the return of three firearms; and (3) an accounting of the financial activities Jordan undertook on Senior's behalf, including "an explanation of the $3, 000.00 worth of antiques which [Senior] believe[d] were sold." In a written response to Senior's attorney, Jordan explained that he and his father had agreed to put the truck in Jordan's name "in case [Senior] never came out of the hospital, and they went after his assets." Jordan refused to return the firearms, among other reasons, because he was concerned that Senior was suicidal. He also explained that, in selling Senior's property, he was acting as authorized under the POA, and that he did so to cover expenses associated with caring for his father and improving his father's house.

In the months that followed, Senior made multiple complaints to the Waldoboro Police Department about the actions Jordan took under the POA prior to its revocation. In a written statement dated October 10, Senior stated that, while hospitalized, "my son came to me about making him my power of attorney," and that "I did not read it and don't feel at this time I should have signed it." Senior conceded that he and Jordan planned to move in together in Standish, and that he had authorized Jordan to sell some of his things and do some work on his house, but complained that Jordan held the sale while Senior was hospitalized even though Senior wanted to be present.

On October 17, Senior told defendant Jeffrey Fuller, a Waldoboro Police Officer, that he had been hospitalized as a result of a liver condition that at times made him feel confused and act abnormally. He explained to Fuller and defendant Lawrence Hesseltine, also a Waldoboro Police Officer, that he had executed a POA and that, pursuant to it, Jordan had taken his truck, transferred ownership to himself, and was refusing Senior's demands to return it. Senior acknowledged that Jordan left his own truck for Senior to use, but said that Jordan's truck was too large for him. Hesseltine confirmed that the title to Senior's former truck was in Jordan's name. Senior also complained that Jordan was refusing to return several firearms. Fuller asked Senior to provide him a copy of the POA, which Senior delivered to the Waldoboro police station the next day.

Also on October 17, after taking Senior's complaint, Fuller spoke to Jordan by telephone. Jordan told Fuller about Senior's plan to move in with him and explained that he had started executing the plan before Senior changed his mind about it. Jordan said he had spent a large amount of time and money fixing up his father's home. When asked if he intended to return his father's firearms, Jordan responded that he did not because his father was not mentally stable. Jordan asked Fuller if the police department might take the firearms for safekeeping, but Fuller responded that the police would have no legal basis to refuse to return the firearms to Senior.

Hesseltine then took over the investigation from Fuller, who left for an extended vacation. Hesseltine received all the documents Senior and Jordan provided to Fuller, including the POA. On November 1, Hesseltine met with Senior about the complaint. Senior told Hesseltine that, while the POA was in effect, Jordan had sold upwards of $5, 000 of Senior's...

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