Marcello v. Maine, CV-06-68-B-W.

• Court: U.S. District Court — District of Maine
• Writing for the Court: Woodcock
• Citation: Marcello v. Maine, 489 F.Supp.2d 70 (D. Me. 2007)
• Decision Date: 06 April 2007
• Docket Number: No. CV-06-68-B-W.,CV-06-68-B-W.
• Parties: James C. MARCELLO, and Olivia Marcello, Plaintiffs, v. State of MAINE, et al., Defendants.

Page 70

489 F.Supp.2d 70

James C. MARCELLO, and Olivia Marcello, Plaintiffs, v. State of MAINE, et al., Defendants.

No. CV-06-68-B-W.

United States District Court, D. Maine.

April 6, 2007.

James C. Marcello, Stetson, ME, pro se.

Olivia A. Marcello, Stetson, ME, pro se.

Ronald W. Lupton, Maine Attorney General's Office, Augusta, ME, for State of Maine, William Anderson, Third Dist. Court of Newport.

Edward R. Benjamin, Jr., Thompson & Bowie, Portland, ME, for Travis Gould.

ORDER ON DEFENDANT TRAVIS GOULD'S MOTION FOR SUMMARY JUDGMENT

WOODCOCK, District Judge.

James and Olivia Marcello most earnestly do not wish to build the foundation under their trailer that the town of Stetson contends its building code requires. In 1997, the Town began an action against the Marcellos to force compliance with the ordinance. After losing at each critical stage in a multiplicity of protracted state proceedings, the Marcellos filed a civil rights action under 42 U.S.C. § 1983 against various parties, including the state of Maine, the law firm of Farrell, Rosenblatt & Russell, the Maine District Court, and Travis Gould, code enforcement dam for the town of Stetson. One by one, the Court granted dispositive motions until Travis Gould stood as the sole remaining defendant. Because Mr. Gould is absolutely immune from liability based on his testimony as a municipal officer and because he is entitled to qualified immunity for his entry onto their property, the Court grants his motion to dismiss and/or motion for summary judgment.

I. THE COMPLAINT ALLEGATIONS

The Marcellos's allegations as against Travis Gould revolve around two essential themes: (1) Mr. Gould's testimony at the state court contempt hearing; and, (2) Mr. Gould's inspection of the Marcellos's trailer to verify compliance — or noncompliance — with the Town's building code. The Court resolves the former on the Defendant's motion to dismiss. As the latter involves the application of the doctrine of qualified immunity to issues of fact, the Court resolves it on his motion for summary judgment.

With regard to the first set of allegations, the Marcellos assert that on November 23, 2005, Mr. Gould and others "conspired with Judge William Anderson of the Waterville Court to preside without authority and to induce plaintiff James Marcello to take the stand against his objection to the jurisdiction of the court by ways of t[h]reats violating his 5th Amendment Constitutional rights." Compl. ¶ 8. They further allege that on April 5, 2006, attorney Jon Haddow — counsel for the town of Stetson — persuaded Mr. Gould "to swear falsely in [an] affidavit to the extent that `... no foundation has been installed.' when in fact he observed on March 22nd and 29th, 2006 a perm[a]n[e]nt foundation had been installed in co[m]pliance with Section 3-E of Stetson Building Code Ordinance." Id. ¶ 10. Finally, Plaintiffs allege that "Defendant State of Maine committed constitutional violations at common law while defendants Judge William Anderson, attorney Jon A. Haddow, Esq, and Travis Gould, CEO, while in Waterville District Court held purported contempt proceedings against plaintiff James Marcello ... after special entry of appearance by said plaintiff objecting to the jurisdiction." Id. ¶ 21.

With regard to the Fourth Amendment allegations, the Marcellos allege that, on March 22, 2006 and March 29, 2006, Mr. Gould "knowingly and willingly [] broke the close of plaintiffs James & Olivia Marcello property ... with no trespassing signs posted and against the owners['] consent, entered the property and broke and entered into the outer skirting of their mobile home violating the plaintiffs['] 4th Amendment rights secured under the Constitutional laws of the land." Compl. ¶ 9. They further allege that Mr. Gould committed this same violation on March 15, 2006. Id. ¶ 20.

II. MOTION TO DISMISS.

A. Standard

Rule 12(b)(6) provides, in part:

Every defense, in law or fact, to a claim for relief in any pleading ... shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: ... (6) failure to state a claim upon which relief can be granted....

FED.R.CIV.P. 12(b)(6). "In ruling on a motion to dismiss [under Rule 12(b)(6)], a court must accept as true all the factual allegations in the complaint and construe all reasonable inferences in favor of the plaintiffs." Alternative Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir.2001) (citing Beddall v. State St. Bank & Trust Co., 137 F.3d 12, 16 (1st Cir.1998)). A defendant is entitled to dismissal only if it "`appeals to a certainty that the plaintiff would be unable to recover under any set of facts.'" State St. Bank & Trust Co. v. Denman Tire Corp., 240 F.3d 83, 87 (1st Cir.2001) (quoting Roma Constr. Co. v. aRusso, 96 F.3d 566, 569 (1st Cir.1996)); see also Nethersole v. Bulger, 287 F.3d 15, 18 (1st Cir.2002).

B. Defendant's Motion to Dismiss

Mr. Gould's first claim is that he is "absolutely immune from civil liability for [the] testimony he provided in the state court proceeding." Def's Mot. at 10. The Supreme Court's decision in Briscoe v. LaHue, 460 U.S. 325, 103 S.Ct. 1108, 75 L.Ed.2d 96 (1983) controls. The issue in Briscoe was whether "government officials who testify about the performance of their official duties may be held liable under § 1983 even if other witnesses may not." 460 U.S. at 326, 103 S.Ct. 1108. The three petitioners — each of whom had been convicted of crimes — sued police officers under § 1983, alleging that the officers had committed perjury during their trials, resulting in violations of their due process rights. In all three cases, the Seventh Circuit upheld dismissals in favor of the defendant police officers, holding that "all witnesses — police officers as well as lay witnesses — are absolutely immune from civil liability based on their testimony in judicial proceedings." Id. at 328, 103 S.Ct. 1108.

Addressing a circuit split, the Supreme Court compared the issue to other § 1983 immunity issues, noting first that "state judges are absolutely immune from liability for their judicial acts," citing Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) and Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978), and that "state prosecutors have absolute immunity from liability for their actions in initiating prosecutions." Id. at 335, 103 S.Ct. 1108. Furthermore, the Court discussed the answer to the question under common law:

In short, the common law provided absolute immunity from subsequent damages liability for all persons — governmental or otherwise — who were integral parts of the judicial process. It is equally clear that § 1983 does not authorize a damages claim against private witnesses on the one hand, or against judges or prosecutors in the performance of their respective duties on the other.

Id. at 336, 103 S.Ct. 1108. Also, after reviewing the legislative history of § 1983, the Court concluded that there was "no evidence that Congress intended to abrogate the traditional common law witness immunity in § 1983 actions." Id. at 337, 103 S.Ct. 1108. The Court noted that "[s]ubjecting government officials ... to damages liability under § 1983 for their testimony might undermine not only their contribution to the judicial process but also the effective performance of their other public duties." Id. at 343, 103 S.Ct. 1108.

Of particular relevance here, Briscoe noted that law suits alleging perjury by a public official "could be expected with some frequency." Id. at 343, 103 S.Ct. 1108. By its nature, an allegation of perjury, violative of a person's constitutional rights, would "often raise material questions of fact, inappropriate for disposition at the summary judgment stage." Id. at 343 n. 29, 103 S.Ct. 1108. Absent absolute immunity, summary judgment would often not be "feasible under these circumstances" and the result would be that the case would "proceed to trial and must traverse much of the same ground as the original ... Id. The Court expressed concern that "[t]his category of § 1983 litigation might well impose significant burdens on the judicial system and on law enforcement resources." Id. Briscoe held that that the three police officers were absolutely immune from § 1983 liability with respect to their testimony at trial. Id. at 345-46, 103 S.Ct. 1108.

Briscoe's holding has been extended beyond police officers to public officials. Briscoe clarifies that the twin rationales for absolute testimonial immunity are alternatively that "he can make a strong claim to witness immunity" or that, because he is "regarded as an official performing a critical role in the judicial process, ... he may seek the benefit afforded to other governmental participants in the same proceeding." Briscoe, 460 U.S. at 333, 103 S.Ct. 1108. These same rationales apply with equal force to public officials. Briscoe also is careful not to limit its reach to police officers alone: "Subjecting government officials, such as police officers, to damages liability under § 1983 for their testimony might undermine not only their contribution to the judicial process, but also the effective performance of their public duties."¹ Id. at 342-43, 103 S.Ct. 1108 (emphasis supplied). Thus, in Frazier v. Bailey, for example, the First Circuit, addressing claims against social workers, noted that it is "well established that public officers possess absolute immunity for activities that are intimately associated with the judicial process." 957 F.2d 920, 931 n. 12 (1st Cir.1992).

On several occasions, the First Circuit has applied Briscoe's absolute immunity doctrine to factual scenarios similar to the case at bar, and has dealt swiftly with § 1983 claims based on witness perjury. See, e.g., Young v. Knox County Deputy, No. 95-1064, 1995 WL 610338, *1, 1995 U.S.App. LEXIS 29229, at *2 (1st...