McLain v. Milligan, Civ. No. 93-129-P-C.

• Decision Date: 15 February 1994
• Docket Number: Civ. No. 93-129-P-C.
• Citation: 847 F. Supp. 970
• Parties: Larry McLAIN, Plaintiff, v. Tony MILLIGAN and Town of Rumford, Defendants.
• Court: U.S. District Court — District of Maine

847 F. Supp. 970

Larry McLAIN, Plaintiff, v. Tony MILLIGAN and Town of Rumford, Defendants.

Civ. No. 93-129-P-C.

United States District Court, D. Maine.

February 15, 1994.

COPYRIGHT MATERIAL OMITTED

Thomas S. Carey, Carey & Associates, Rumford, ME, for plaintiff.

Jeffrey T. Edwards, Edward R. Benjamin, Jr., Preti, Flaherty, Beliveau & Pachios, Portland, ME, for defendant.

MEMORANDUM OF DECISION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

GENE CARTER, Chief Judge.

This case arises out of the entry into the home and warrantless arrest of Plaintiff Larry McLain in the Town of Rumford, Maine, by Defendant police officer Tony Milligan. In a ten-count Complaint against Defendants Milligan and the Town of Rumford, Plaintiff alleges that Defendant Milligan and another police officer entered his home without consent, arrested him without probable cause, and used excessive force in carrying out his arrest. Plaintiff alleges that Milligan's actions render him and the Town liable for the commission of several state law torts, violation of various state statutes, and violation of his civil rights under the United States and the Maine Constitutions.¹ Plaintiff's Complaint (Docket No. 1).

Defendants have moved for summary judgment on all Counts. Motions by Defendant Rumford and Defendant Milligan for Summary Judgment (Docket Nos. 14 & 17, respectively). Under Federal Rule of Civil Procedure 56(c), this Court can grant summary judgment only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show 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). Because the Court finds that genuine issues of material fact are in dispute with respect to all of the factual allegations underlying Plaintiff's Complaint, this Court will deny summary judgment to Defendant Town of Rumford on all Counts. This Court will also deny summary judgment to Defendant Milligan on Counts IX and X with respect to the allegations of unlawful entry into Plaintiff's home, unlawful arrest, and excessive use of force in violation of Plaintiff's civil rights pursuant to section 1983 and the Maine Civil Rights Act. 42 U.S.C. § 1983 and 5 M.R.S.A. § 4682, respectively. This Court will further deny summary judgment to Defendant Milligan on Counts IV and VI with respect to the tort claim of excessive use of force and the statutory claim of using wanton or oppressive conduct in effecting Plaintiff's warrantless arrest, 15 M.R.S.A. § 704. This Court will grant summary judgment to Defendant Milligan on the remaining state law counts, finding that Defendant is immune from suit on these claims under the discretionary function provision of the Maine Tort Claims Act. 14 M.R.S.A. § 8111(1)(C).

I. FACTS

The undisputed facts in this case are stated in the light most favorable to Plaintiff for the purposes of these Motions for Summary Judgment. On the evening of October 26, 1992, the Rumford Police Department received a phone complaint from a neighbor complaining of loud and unreasonable noise coming from a party in Plaintiff's apartment. Affidavit of Defendant Officer Tony Milligan at ¶ 2 ("Milligan Affidavit"), attached as Exhibit A to Defendant Milligan's Statement of Uncontroverted Facts (Docket No. 19). Just after 10:00 p.m., two other neighbors knocked on Plaintiff's door to complain about the noise. In response, Plaintiff and several other people moved their party from the kitchen to the living room, cut off the music that was playing, and began watching television. Deposition of Larry McLain at 57-58 ("Plaintiff Depo."), attached to Plaintiff's Statement of Material Facts in Opposition to Defendant Tony Milligan's Motion for Summary Judgment (Docket No. 24).

Defendant Milligan and another police officer, Donald McKeen, went to Plaintiff's apartment to follow up on the initial complaint. Milligan Affidavit at ¶¶ 2-3. When the officers knocked, Plaintiff's roommate, Patti Shannon, answered the door. The officers told Shannon about the complaint, and said that they needed to speak to the guests. The officers then followed Shannon into the living room to ask everyone to keep the noise down.² Id. at ¶ 4 and Deposition of Patti Shannon at 47-50 ("Shannon Depo."), attached to Plaintiff's Statement of Material Facts in Opposition to Defendant Tony Milligan's Motion for Summary Judgment (Docket No. 24).

The officers proceeded to record everyone's name, social security number, and address, to facilitate filing charges of disorderly conduct in the event that they would have to return to the apartment in response to additional noise complaints. Milligan Affidavit at ¶¶ 4-5 and Plaintiff Depo. at 63. While the officers were collecting information from those in the room, Plaintiff, who had identified himself as a renter of the apartment, complained repeatedly that the noise problem had been taken care of, that the officers should leave his apartment, and that they should not be questioning his guests.³ Plaintiff Depo. at 62-68. Following Plaintiff's second complaint, Defendant Milligan threatened to arrest Plaintiff for disorderly conduct if he interrupted the officers again. When Plaintiff asked the officers to leave a third time, they arrested Plaintiff, took him out of the apartment, and forced him to the ground to be handcuffed.⁴ Milligan Affidavit at ¶¶ 7-9. During the events which occurred as the officers executed the arrest, Plaintiff suffered a laceration over his right eye requiring six stitches, two sprained wrists, a sprained back and a twisted neck. His injuries prevented him from working in his trade of hanging sheetrock for at least one week, and he has suffered a variety of complications since the incident. Plaintiff Depo. at 76 and 81 and Plaintiff's Second Deposition at 4-6, attached to Plaintiff's Statement of Material Facts (Docket No. 24).

II. LIABILITY OF DEFENDANT MILLIGAN

A. Qualified Immunity Defense under the Maine Civil Rights Act and 42 U.S.C. § 1983

Defendant Milligan raises the defense of qualified immunity to Plaintiff's allegations in Counts IX and X that his constitutional rights were violated, pursuant to the Maine Civil Rights Act and the federal civil rights statute. 5 M.R.S.A. § 4682⁵ and 42 U.S.C. § 1983, respectively; and Memorandum in Support of Motion of Defendant, Tony Milligan, for Summary Judgment (Docket No. 18) at 9-14. The relevant inquiry for assessing whether Defendant is entitled to qualified immunity is "whether a reasonable officer could have believed" that Defendant's actions were lawful "in light of clearly established law and the information" that Defendant possessed. Anderson v. Creighton, 483 U.S. 635, 641, 107 S.Ct. 3034, 3039, 97 L.Ed.2d 523 (1987). This Court has delineated a two-step analysis for assessing a claim of qualified immunity:

First, the court must consider the more general question of whether the law establishing the right allegedly violated was `clearly established' at the time the challenged action was taken. If the law was clearly established, the court must proceed to consider whether, in the specific circumstances of the challenged action, a `reasonable officer' could have believed that the challenged action was lawful in light of the information possessed by the officers.

Vitalone v. Curran, 665 F.Supp. 964, 973-74 (D.Me.1987).

Plaintiff alleges that Defendant violated his constitutional rights by (1) entering his home without a warrant and without consent; (2) arresting him without probable cause; and (3) using excessive force in executing his arrest. The parameters of a citizen's Fourth Amendment rights in these three areas have been `clearly established' in decisions issued by the United States Supreme Court and the Court of Appeals for the First Circuit. See Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371, 1374, 63 L.Ed.2d 639 (1980) (holding that the Fourth Amendment prohibits police from making a warrantless and nonconsensual entry into a private home); Hall v. Ochs, 817 F.2d 920, 925 (1st Cir.1987) (holding that the "right to be free from unreasonable seizures of the person was ... well established by 1980"); and Fernandez v. Leonard, 784 F.2d 1209, 1214-15 (1st Cir. 1986) (holding that the right to be free from the use of excessive force has been well established since 1976). Hence, the question for each alleged civil rights violation is narrowed to the issue of whether a reasonable officer could have believed that Defendant Milligan's actions were lawful, given the established law and the information that he possessed.

1. Consent

This Court will deny qualified immunity to Defendant Milligan on the issue of whether the officers obtained consent to enter Plaintiff's apartment because genuine issues of material fact are in dispute precluding summary judgment. Defendant Milligan asserts that prior to entering the apartment, he and officer McKeen informed Plaintiff's roommate, Patti Shannon, about the noise complaint and asked if they could speak with her guests. While unable to recall the exact words or gestures used by Shannon, Defendant asserts that Shannon freely and voluntarily invited the officers into the apartment and led them to the living room. Milligan Affidavit at ¶ 4. Shannon, on the other hand, states that she heard loud knocks on the door and opened it, without any knowledge of who was standing there. "Because the door opened inwards, I had to move out of the way to open the door, and when I opened the door the cops stepped in." Shannon Depo. at 49. Shannon asserts that she never consented by voice or by gesture to the officers' entry into the apartment:

The way they entered I presumed they had the right to do what they were doing. I was not going to argue with them. They wanted to know where the other people were. I told them they were in the living

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