Vincent v. Town of Scarborough, Civil No. 02-239-P-H (D. Me. 11/20/2003)

• Decision Date: 20 November 2003
• Docket Number: Civil No. 02-239-P-H.
• Parties: SUSAN VINCENT, CHRISTINA COOKSON, personal representatives of the ESTATE of JAMES LEVIER, Plaintiffs, v. TOWN OF SCARBOROUGH, et al., Defendants.
• Court: U.S. District Court — District of Maine

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SUSAN VINCENT, CHRISTINA COOKSON, personal representatives of the ESTATE of JAMES LEVIER, Plaintiffs, v. TOWN OF SCARBOROUGH, et al., Defendants.

Civil No. 02-239-P-H.

United States District Court, D. Maine.

November 20, 2003.

DANIEL G. LILLEY, DANIEL G. LILLEY LAW OFFICES, MARK L. RANDALL, MCARDLE LAW FIRM, PORTLAND, ME, for Plaintiff SUSAN VINCENT, as Personal Representative of the Estate of James Levier

MARK L. RANDALL, McARDLE LAW FIRM, PORTLAND, ME, for Plaintiff SUSAN VINCENT, as Personal Representative of the Estate of James Levier

DANIEL G. LILLEY, for Plaintiff CHRISTINA COOKSON, as Personal Representative of the Estate of James Levier

MARK L. RANDALL, McARDLE LAW FIRM, PORTLAND, ME, for Plaintiff CHRISTINA COOKSON, as Personal Representative of the Estate of James Levier

EDWARD R. BENJAMIN, THOMPSON & BOWIE, PORTLAND, ME, for Defendant TOWN OF SCARBOROUGH

EDWARD R. BENJAMIN, JR., for Defendant SCARBOROUGH POLICE DEPARTMENT

EDWARD R. BENJAMIN, JR., for Defendant ROBERT MOULTON, ROBERT MOORE, IVAN RAMSDELL, individually and as an employee of the Scarborough Police Department

WILLIAM R. FISHER, AUGUSTA, ME, for Defendant MAINE STATE POLICE

WILLIAM R. FISHER, for Defendant MICHAEL R SPERRY, MARK SPERREY, individually and as an employee of the Maine State Police

RECOMMENDED DECISION ON DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND MEMORANDUM DECISION ON MOTIONS TO STRIKE

DAVID COHEN, Magistrate Judge.

Defendants Town of Scarborough ("Town"), the Scarborough Police Department ("SPD") and Scarborough police officers Robert Moulton, Robert Moore and Ivan Ramsdell (collectively, "Town Defendants"), as well as defendants the Maine State Police ("MSP"), Colonel Michael R. Sperry and Trooper Mark A. Sperrey (collectively, "State Defendants") seek summary judgment as to all counts against them in this action brought by Susan Vincent and Christina Cookson ("Plaintiffs") as personal representatives of the estate of Jamies Levier, who was shot and killed by police in Scarborough, Maine on March 16, 2001. See Defendants Town of Scarborough, Scarborough Police Department, Robert Moulton, Robert Moore and Ivan Ramsdell's Motion for Summary Judgment, etc. ("Town S/J Motion") (Docket No. 11) at 1, 20; Amended Motion for Summary Judgment by the Maine State Police, Colonel Michael R. Sperry and Trooper Mark A[.] Sperrey ("State S/J Motion") (Docket No. 14) at 1-2.

Incident thereto, the Plaintiffs, the Town Defendants and the State Defendants (both groups, "Defendants") all have filed motions to strike. See Plaintiffs' Motion To Strike Portions of Defendants Town of Scarborough, Scarborough Police Department, Robert Moulton, Robert Moore and Ivan Ramsdell's Statement of Material Facts ("Plaintiffs' Motion To Strike") (Docket No. 17); Defendants Town of Scarborough, Scarborough Police Department, Robert Moulton, Robert Moore and Ivan Ramsdell's Motion To Strike Plaintiffs' Statement of Additional Facts, etc. (`Town Defendants' Motion To Strike Additional Facts") (Docket No. 25); Defendants Town of Scarborough, Robert Moulton, Robert Moore and Ivan Ramsdell's Motion To Deem Material Facts Admitted or, in the Alternative, Motion To Strike Plaintiffs' Response to the Defendants' Statement of Material Facts ("Town Defendants' Motion To Strike Opposing Facts") (Docket No. 26); Motion To Strike Plaintiffs' Statement of Additional Facts by State of Maine Defendants Maine State Police, Colonel Michael R. Sperry and Trooper Mark A. Sperrey ("State Defendants' Motion To Strike") (Docket No. 30). For the reasons that follow, I grant in part and deny in part the Plaintiffs' Motion To Strike, the Town Defendants' Motion To Strike Opposing Facts and the State Defendants' Motion To Strike, grant the Town Defendants' Motion To Strike Additional Facts, and recommend that the motions for summary judgment be granted.

I. Summary Judgment Standards

Summary judgment is appropriate only if the record shows "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). "In this regard, `material' means that a contested fact has the potential to change the outcome of the suit under the governing law ¶ the dispute over it is resolved favorably to the nonmovant. . . . By like token, `genuine' means that the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party. . . .'" McCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995) (citations omitted). The party moving for summary judgment must demonstrate an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

In determining whether this burden is met, the court must view the record in the light most favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its favor. Cadle Co. v. Hayes, 116 F.3d 957, 959(1st Cir. 1997). Once the moving party has made a preliminary showing that no genuine issue of material fact exists, "the nonmovant must contradict the showing by pointing to specific facts demonstrating that there is, indeed, a trial worthy issue." National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995) (citing Celotex, 477 U.S. at 324); Fed.R.Civ.P. 56(e). "This is especially true in respect to claims or issues on which the nonmovant bears the burden of proof." International Ass'n of Machinists & Aerospace Workers v. Winship Green Nursing Ctr., 103 F.3d 196, 200 (1st Cir. 1996) (citations omitted).

II. Factual Context

A. Town S/J Motion

1. Plaintiffs' and Town Defendants' Motions To Strike

a. Plaintiffs' Motion To Strike

The Plaintiffs' motion to strike paragraphs 9, 96,¹ 99, 101, 106, 108, 121, 136, 138-39, 142, 152, 155, 176, 228, 232, 237-38, 240-41, 260, 264, 275 and 277 ofthe Town Defendants' statement of material facts, see Plaintiffs' Motion To Strike at 1-2, is granted in part and denied in part as follows:

1. Paragraph 9: Granted While SPD chief Moulton is qualified to explain why his department has chosen not to adopt a specific policy, paragraph 9 is worded in such a way as to proclaim as a fact that "the presence of disability [does] not change the legal standards applicable to an officer's lawful use of force." Defendants Town of Scarborough, Scarborough Police Department, Robert Moulton, Robert Moore and Ivan Ramsdell's Statement of Uncontroverted Facts in Support of Their Motion for Summary Judgment ("Town Defendants' SMF") (Docket No. 12) ¶ see also Affidavit of Robert Moulton ("Moulton Aff"), attached as Exh. 1 to Town Defendants' SMF, ¶ 1. Moulton is not qualified to offer such an opinion.

2. Paragraph 96: Denied The testimony of SPD officer Thomas Chard, on which paragraph 96 is based, stems from direct personal observation. See Affidavit of Thomas Chard ("Chard Aff"), attached as Exh. 4 to Town Defendants' SMF, ¶¶ 1-2, 5. Chard is competent to describe the gestures he observed Levier make and his contemporaneous understanding of what those gestures meant, even assuming that, as a result of his lack of knowledge of American Sign Language ("ASL"), he did not understand the meaning of some or all of those gestures.

3. Paragraph 99: Denied While the Town Defendants' assertion that SPD officer Jeff Greenleaf "had to change positions to keep his cruiser between himself and the gunman" is a conclusion, it is supported by the stated fact that the distance between Greenleaf and Levier kept shifting as Levier moved-a circumstance in which the First Circuit has instructed that a conclusion is cognizable as a fact. See Town Defendants' SMF ¶ 99; Dartmouth Review v. Dartmouth Coll., 889 F.2d 13, 16(1st Cir. 1989)("Most often, facts are susceptible to objective verification. Conclusions, on the other hand, are empirically unverifiable in the usual case. They represent the pleader's reactions to, sometimes called inferences from,' the underlying facts. It is only when such conclusions are logically compelled, or at least supported, by the with id. at 2. stated facts, that is, when the suggested inference rises to what experience indicates is an acceptable level of probability, that conclusions' become `facts' for pleading purposes."); see also Perez v. Volvo Car Corp., 247 F.3d 303, 316 (1st Cir. 2001) (citing Dartmouth in summary-judgment context for proposition that "[w]hile the line between facts and non-facts often seems blurry, courts nonetheless must strive to plot it").

4. Paragraph 101: Denied.The Town Defendants' assertion that SPD officer Robert Moore had to change positions "for his own safety" is a conclusion; however, it is buttressed by the stated fact that Moore moved from side to side of the pickup truck behind which he had sought cover as Levier paced back and forth. See Dartmouth, 889 F.2d at 16.

5. Paragraph 106: Denied.The Town Defendants' assertion that the situation was "Very dangerous" is a conclusion; however, it is premised on affiant Greenleaf s observations of the way Levier was acting and the fact that Levier was holding what Greenleaf knew to be a high-powered rifle. See Dartmouth, 889 F.2d at 16.

6. Paragraph 108: Denied.Moore, who was present at the scene, see Affidavit of Robert Moore ("Moore Aff"), attached as Exh. 3 to Town Defendants' SMF, ¶¶ 1-5, is competent to testify as to his state of mind on the day in question and his observations as to Levier's appearance and conduct that day.

7. Paragraph 121: Denied.The Plaintiffs mischaracterize paragraph 121 as stating that "a civilian sign language interpreter could not be used safely." Compare Plaintiffs' Motion To Strike at 4 with Town Defendants' SMF ¶ 121.

8. Paragraphs 136, 138-39, 142: Denied.Greenleaf, who was present at the scene, is competent to testify as to his personal observations of Levier's gestures and what he contemporaneously understood them to mean, even assuming that as a result of lack of...