Cayer v. Town of Madawaska
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Opinion
STATE OF MAINE SUPERIOR COURT AROOSTOOK, ss Civil Action Docket No. CV-18-0135
RICHARD CAYER and ANN CAYER, ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY Plaintiffs JUDGMENT
V.
TOWN of MADAWASKA,
ROBERT OUELLET,
CHRISTINA THERRIEN,
VINCE FRALLICIARDI,
JEFF ALBERT,
DON CHASSE,
Defendants
The matter pending before the Court is a motion for summary judgment filed by
the defendants Town of Madawaska, Robert Ouellet, Christina Therrien, Vince
Frallicciardi, Jeff Albert, and Don Chasse. The motion seeks summary judgment on all
plaintiffs Ann Cayer and Richard Cayer' s claims against the defendants set forth in the
plaintiffs' complaint. Those claims are based on Defendants alleged conduct in bringing
and maintaining two civil enforcement actions against Plaintiffs on behalf of the Town of
Madawaska for purported land use violations relating to Plaintiffs' property at 57 Chapel
1 Road in Madawaska. Plaintiffs have asserted the following claims: (1) "wrongful use of
civil proceedings - 2010 Rule BOK enforcement action"; (2) "wrongful use of civil
proceedings - 2014 Rule 80K enforcement action"; (3) "abuse of process - 2010 Rule BOK
enforcement action"; (4) "abuse of process - 2014 Rule BOK enforcement action"; (5)
"violation of federal civil rights - 42 U.S.C. § 1983"; (6) "violation of Maine Civil Rights
Act - 5 M.R.S.A. § 4681 et seq."; (7) intentional infliction of emotional distress; (8)
negligent infliction of emotional distress. (Pls.' Amd. Compl. 9-14.) The Court has
reviewed all of the parties' submissions and the applicable law. The defendants' motion
is now in order for decision.
I. STANDARD OF REVIEW
The Court will grant a properly supported motion for summary judgment if "there
is no genuine issue as to any material fact" and the moving party "is entitled to judgment
as a matter of law." M.R. Civ. P. 56(c). "A material fact is one that can affect the outcome
of the case." Lougee Conservancy v. City Mortgage, Inc., 2012 ME 103, ,r 11, 48 A.3d 774. A
genuine issue exists "when there is sufficient evidence for a fact-finder to choose between
competing versions of the fact," Id. ,r 11, "even if one party's version appears more
credible or persuasive." York Cty. v. Propertyinfo Corp., 2019 ME 12, ,r 16,200 A.3d 803.
The moving party has the initial burden of proving the absence of any genuine,
material factual issues through a properly supported statement of material facts (S.M.F.)
and of proving that the facts presented in that S.M.F., left uncontroverted, would entitle
the moving party to judgment as a matter of law at trial. See M.R. Civ. P. 56(e); Jennings
v. Maclean, 2015 ME 42, ,r 5, 114 A.3d 667; see also 3 Harvey & Merritt, Maine Civil Practice
2 § 56:6.at 242 (3d, 2018-2019 ed.) ("The initial burden under Rule 56 lies with the moving
party to demonstrate clearly the absence of a genuine issue of material fact."). In
determining whether the summary judgment record reveals a genuine dispute of
material fact, the Court examines the facts, including any reasonable inferences that may
be drawn therefrom, in the light most favorable to the nonmoving party. See e.g.,
McCandless v. Ramsey, 2019 ME 111, ,r 11,211 A.3d 1157; Grant v. Foster Wheeler, LLC, 2016
ME 85, ,r 12, 140 A.3d 1242; Maine Civil Practice§ 56:6 at 242. The question of whether the
moving party has initially shown that he or she is entitled to judgment as a matter of law,
depends on whether the moving party bears the ultimate burden of proof on the
particular claim or defense at issue on the motion.
In this case, the defendants' have moved for summary judgment on the grounds
that the plaintiffs' claims are barred by the notice and filing deadline requirements of the
Maine Tort Claims Act (MTCA), other applicable statutes of limitation, governmental
immunity under § 8103 of the MTCA, discretionary immunity under § 8104-B of the
MTCA, and common law qualified immunity. All of these are affirmative defenses on
which the defendants would bear the ultimate burden of proof at triaL M.R. Civ. P. 8(c).
Accordingly, as to each affirmative defense, the defendants bear the initial burden of
proving that the facts presented in their S.M.F. establish each element of the defense such
that the defendants would be entitled to judgment as a matter of law on the issue if the
same evidence was presented at trial. See e.g., Ouellette v. Beaupre, 977 F.3d 127, 135 (1st
Cir. 2020); York Cty. v. Property Info Corp., 2019 ME 12, ,r 16, 200 A.3d 803; Cach, LLC v.
Kulas, 2011 ME 70, ,r,r 8-9, 21 A.3d 1015; Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
3 Cir. 1986). If the defendants produce such conclusive evidence, the burden shifts to the
plaintiffs to demonstrate that material factual issues exist for trial regarding the particular
defense. Ouellette v. Beaupre, 977 F.3d 127, 135 (1st Cir. 2020); M.R. Civ. P. 56(e).
The defendants have also moved for summary judgment on the grounds that
plaintiffs are unable to prove all of the elements of some of their claims. The defendants'
initial burden on these matters is less than their burden concerning their affirmative
defenses because at trial Plaintiffs would bear the ultimate burden of proving the
elements of their claims. To meet their initial burden as the moving party on these other
arguments, Defendants must show either that their S.M.F. presents certain facts that
would refute an essential element of Plaintiffs' claims or which indicate that Plaintiffs are
unable to muster the necessary evidence to set forth a prima facie case. See Fontenot v.
Upjohn Co., 780 F.2d 1190, 1194-97 (5th Cir. 1986); see also Waugh v. Genesis Healthcare LLC,
2019 ME 179, ,r 9, 222 A.3d 1063 (a defendant moving for summary judgment bears the
initial burden of establishing that no genuine dispute of material fact exists and that
undisputed facts entitle it to a judgment as a matter of law); M.R. Civ. P. 56(e)-(h). If the
defendants satisfy this burden~ the plaintiffs must .respond by producing the evidence II necessary to establish a prima. facie case for each element of [his or her] cause of action."
Lougee Conservancy, 2012 ME 103, ,r 12, 48 A.3d 774. This standard requires only that the II plaintiffs produce enough evidence to allow the [trier-of-fact] to infer the fact at issue
and rule in the party's favor." Id. If the plaintiffs fail to satisfy this burden as to any
essential element of their cause of action, the defendant is entitled to summary judgment
on that claim. Id. ,r 12; M.R. Civ. P. 56(e).
4 II. SUMMARY JUDGMENT RECORD
A. Defendants' Supporting Statement of Material Facts
The Cayers own land in Madawaska located at 57 Chapel Road (also known on
the Town's tax maps as Map 34, Lot 20). (Supp.'g S.M.F. ,r 1.) On or about June 3, 2010,
Plaintiffs received a notice from the Town's code enforcement officer, Robert Ouellet,
informing them that he had determined that Plaintiffs were using the property in a
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STATE OF MAINE SUPERIOR COURT AROOSTOOK, ss Civil Action Docket No. CV-18-0135
RICHARD CAYER and ANN CAYER, ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY Plaintiffs JUDGMENT
V.
TOWN of MADAWASKA,
ROBERT OUELLET,
CHRISTINA THERRIEN,
VINCE FRALLICIARDI,
JEFF ALBERT,
DON CHASSE,
Defendants
The matter pending before the Court is a motion for summary judgment filed by
the defendants Town of Madawaska, Robert Ouellet, Christina Therrien, Vince
Frallicciardi, Jeff Albert, and Don Chasse. The motion seeks summary judgment on all
plaintiffs Ann Cayer and Richard Cayer' s claims against the defendants set forth in the
plaintiffs' complaint. Those claims are based on Defendants alleged conduct in bringing
and maintaining two civil enforcement actions against Plaintiffs on behalf of the Town of
Madawaska for purported land use violations relating to Plaintiffs' property at 57 Chapel
1 Road in Madawaska. Plaintiffs have asserted the following claims: (1) "wrongful use of
civil proceedings - 2010 Rule BOK enforcement action"; (2) "wrongful use of civil
proceedings - 2014 Rule 80K enforcement action"; (3) "abuse of process - 2010 Rule BOK
enforcement action"; (4) "abuse of process - 2014 Rule BOK enforcement action"; (5)
"violation of federal civil rights - 42 U.S.C. § 1983"; (6) "violation of Maine Civil Rights
Act - 5 M.R.S.A. § 4681 et seq."; (7) intentional infliction of emotional distress; (8)
negligent infliction of emotional distress. (Pls.' Amd. Compl. 9-14.) The Court has
reviewed all of the parties' submissions and the applicable law. The defendants' motion
is now in order for decision.
I. STANDARD OF REVIEW
The Court will grant a properly supported motion for summary judgment if "there
is no genuine issue as to any material fact" and the moving party "is entitled to judgment
as a matter of law." M.R. Civ. P. 56(c). "A material fact is one that can affect the outcome
of the case." Lougee Conservancy v. City Mortgage, Inc., 2012 ME 103, ,r 11, 48 A.3d 774. A
genuine issue exists "when there is sufficient evidence for a fact-finder to choose between
competing versions of the fact," Id. ,r 11, "even if one party's version appears more
credible or persuasive." York Cty. v. Propertyinfo Corp., 2019 ME 12, ,r 16,200 A.3d 803.
The moving party has the initial burden of proving the absence of any genuine,
material factual issues through a properly supported statement of material facts (S.M.F.)
and of proving that the facts presented in that S.M.F., left uncontroverted, would entitle
the moving party to judgment as a matter of law at trial. See M.R. Civ. P. 56(e); Jennings
v. Maclean, 2015 ME 42, ,r 5, 114 A.3d 667; see also 3 Harvey & Merritt, Maine Civil Practice
2 § 56:6.at 242 (3d, 2018-2019 ed.) ("The initial burden under Rule 56 lies with the moving
party to demonstrate clearly the absence of a genuine issue of material fact."). In
determining whether the summary judgment record reveals a genuine dispute of
material fact, the Court examines the facts, including any reasonable inferences that may
be drawn therefrom, in the light most favorable to the nonmoving party. See e.g.,
McCandless v. Ramsey, 2019 ME 111, ,r 11,211 A.3d 1157; Grant v. Foster Wheeler, LLC, 2016
ME 85, ,r 12, 140 A.3d 1242; Maine Civil Practice§ 56:6 at 242. The question of whether the
moving party has initially shown that he or she is entitled to judgment as a matter of law,
depends on whether the moving party bears the ultimate burden of proof on the
particular claim or defense at issue on the motion.
In this case, the defendants' have moved for summary judgment on the grounds
that the plaintiffs' claims are barred by the notice and filing deadline requirements of the
Maine Tort Claims Act (MTCA), other applicable statutes of limitation, governmental
immunity under § 8103 of the MTCA, discretionary immunity under § 8104-B of the
MTCA, and common law qualified immunity. All of these are affirmative defenses on
which the defendants would bear the ultimate burden of proof at triaL M.R. Civ. P. 8(c).
Accordingly, as to each affirmative defense, the defendants bear the initial burden of
proving that the facts presented in their S.M.F. establish each element of the defense such
that the defendants would be entitled to judgment as a matter of law on the issue if the
same evidence was presented at trial. See e.g., Ouellette v. Beaupre, 977 F.3d 127, 135 (1st
Cir. 2020); York Cty. v. Property Info Corp., 2019 ME 12, ,r 16, 200 A.3d 803; Cach, LLC v.
Kulas, 2011 ME 70, ,r,r 8-9, 21 A.3d 1015; Fontenot v. Upjohn Co., 780 F.2d 1190, 1194 (5th
3 Cir. 1986). If the defendants produce such conclusive evidence, the burden shifts to the
plaintiffs to demonstrate that material factual issues exist for trial regarding the particular
defense. Ouellette v. Beaupre, 977 F.3d 127, 135 (1st Cir. 2020); M.R. Civ. P. 56(e).
The defendants have also moved for summary judgment on the grounds that
plaintiffs are unable to prove all of the elements of some of their claims. The defendants'
initial burden on these matters is less than their burden concerning their affirmative
defenses because at trial Plaintiffs would bear the ultimate burden of proving the
elements of their claims. To meet their initial burden as the moving party on these other
arguments, Defendants must show either that their S.M.F. presents certain facts that
would refute an essential element of Plaintiffs' claims or which indicate that Plaintiffs are
unable to muster the necessary evidence to set forth a prima facie case. See Fontenot v.
Upjohn Co., 780 F.2d 1190, 1194-97 (5th Cir. 1986); see also Waugh v. Genesis Healthcare LLC,
2019 ME 179, ,r 9, 222 A.3d 1063 (a defendant moving for summary judgment bears the
initial burden of establishing that no genuine dispute of material fact exists and that
undisputed facts entitle it to a judgment as a matter of law); M.R. Civ. P. 56(e)-(h). If the
defendants satisfy this burden~ the plaintiffs must .respond by producing the evidence II necessary to establish a prima. facie case for each element of [his or her] cause of action."
Lougee Conservancy, 2012 ME 103, ,r 12, 48 A.3d 774. This standard requires only that the II plaintiffs produce enough evidence to allow the [trier-of-fact] to infer the fact at issue
and rule in the party's favor." Id. If the plaintiffs fail to satisfy this burden as to any
essential element of their cause of action, the defendant is entitled to summary judgment
on that claim. Id. ,r 12; M.R. Civ. P. 56(e).
4 II. SUMMARY JUDGMENT RECORD
A. Defendants' Supporting Statement of Material Facts
The Cayers own land in Madawaska located at 57 Chapel Road (also known on
the Town's tax maps as Map 34, Lot 20). (Supp.'g S.M.F. ,r 1.) On or about June 3, 2010,
Plaintiffs received a notice from the Town's code enforcement officer, Robert Ouellet,
informing them that he had determined that Plaintiffs were using the property in a
manner that was in violation of the Town's shoreland zoning ordinance. (Id. ,r,r 2-3.) This
purported violation involved the unauthorized presence of a certain trailer on the
premises. (Id. ,r,r 2, 8.) The Town's Board of Selectpersons (BOS) held a meeting on June
29, 2010, concerning this purported violation. (Id. ,r,r 4-7.) Plaintiffs received notice of the
meeting, were present, and were given an opportunity to be heard on the matter. (Id.)
After a discussion, the BOS determined that Plaintiffs had violated the zoning ordinance
"and that the plaintiffs would be required to remove a trailer from the property, pay a
fine, and enter into a consent decree with the Town." (Id. ,r 7-8.)
Plaintiffs removed the trailer as requested but did not pay the assessed fine or
agree to the "consent agreement" offered by the Town. (Id. ,r 10.) In response, the BOS
held another meeting on the matter on July 13, 2010, which Plaintiffs were provided
notice of and were present at. (Id. ,r,r 13-14.) At this second meeting, the BOS determined
that Plaintiffs had not paid the fine or accepted the Town's offered agreement and, based
on these determinations, voted in favor of initiating a civil enforcement action against
Plaintiffs in the courts under M. R. Civ. P. 80K. (Id. ,r,r 13-15.) The Town commenced this
enforcement action by filing a complaint in the District Court on August 11, 2010. (Id. ,r
5 16.) It was then transferred to the Superior Court and docketed as Aro-CV-12-0155. The
Town's then attorney, Richard Currier, avers that he believed there "were good grounds
in fact and law to support the action" when he filed the complaint and during the course
of the litigation in that matter. (Id. ,r 21.) The Town's code enforcement officer, Ouellet,
and its town manager, Christina Therrien, worked with the Town's attorney regarding
this enforcement action when it was in the courts. (Id. ,r,r 23, 25.)
On or about June 4, 2013, Plaintiffs received another notice of violation from the
Town's code enforcement officer. (Id. ,r,r 27, 29.) This second notice of violation informed
them that the officer had determined that Plaintiffs had violated a Town ordinance by
exceeding the scope of a previously issued building permit when Plaintiffs purportedly
removed more than 50% of the value of a structure on their property. (Id. ,r,r 27-28.) The
Town's Planning Board held a meeting on this matter on July 9, 2013, to determine
whether Plaintiffs had removed more than 50% of the market value of the structure. (Id.
,r,r 31-33.) Plaintiffs were given notice of the meeting, were present at it, and were afforded an opportunity to be heard on the matter. (Id. ,r,r 34-35.) After a discussion, the
Planning Board determined that Plaintiffs had removed more than 50% of the market
value of the structure from their property. (Id. ,r 36.) The Planning Board then decided
to revisit the matter at a meeting on August 12, 2013. (Id. ,r 30.) After hearing from
Plaintiffs on the matter and a discussion of the issue, the Planning Board determined that
Plaintiffs had removed 100% of the market value of the structure that was on their
property. (Id. ,r,r 40-41.) Code enforcement officer Ouellet then served Plaintiffs with
another notice of violation on or about August 22, 2013. (Id. ,r 30.) This third notice of
6 violation "referenced a violation of the Town's ordinance with regard to changes to the
structure of their property." (Id.)
The BOS then held a meeting on September 3, 2013, concerning Plaintiffs'
purported violations resulting from their removal of a structure on their property. (Id.
,r,r 44-46.) Plaintiffs had notice of this meeting and on September 2, 2013, requested the BOS postpone the meeting for a later date. (Id. ,r,r 46-47.) At the September 3rd meeting,
the BOS rejected Plaintiffs' request to postpone, determined that "Plaintiffs had violated
the Town's ordinance by effecting certain changes to [their] property without a proper
permit", and to offer Plaintiffs an agreement resolving the violation. (Id. ,r,r 48-50.)
Plaintiffs received notice of these determinations in writing on or about September 18,
2013. (Id. ,r,r 51-52.) Apparently, Plaintiffs did not accept the Town's offer so, the BOS
held a follow up meeting on the matter on November 5, 2013, which Plaintiffs had notice
of and attended. (Id. ,r,r 51-57.) At this meeting, the BOS determined that Plaintiffs had
not accepted the Town's offer and decided to bring a civil enforcement action against
Plaintiffs under M.R. Civ. P. SOK. (Id. ,r,r 58-59.) The Town commenced this enforcement
action by filing a complaint in,the District Court on or about April 15, 2014. (Id. ,r 16.) It
was then transferred to the Superior Court and docketed as Aro-CV-14-0082. The Town's
then attorney, Richard Currier, avers that he believed there "were good grounds in fact
and law to support the action" when he filed the complaint and during the course of the
litigation in that matter. (Id. ,r 63.) The Town's manager, Christina Therrien, worked with
the Town's attorney regarding this enforcement action when it was in the courts. (Id. ,r
67.)
7 Justice Stewart of the Superior Court conducted a trial management conference
regarding the 2010 enforcement action and the 2014 enforcement action on September 6,
2016. (Id. ,r,r 69-70; Aro-CV-2012-0155; Aro-CV-2014-0082.) At this conference, the Cayers
accepted the Town's offer to dismiss the enforcement actions with prejudice and without
costs. (Id. ,r,r 69-70; Aro-CV-2012-0155; Aro-CV-2014-0082.) The Superior Court then
entered an order dismissing the cases with prejudice, closing the cases. (Id. ,r 71; Aro-CV
2012-0155; Aro-CV-2014-0082.)
Defendants assert that all of Plaintiffs' claims in the case at bar, are based on the
alleged conduct of the defendants leading to the two Rule 80K enforcement actions the
Town brought against Plaintiffs for their purported land use violations and based on the
defendants conduct during those enforcement actions. (Id. ,r,r 72-76.) They assert that the
only notice of claim that Plaintiffs gave to Defendants was a document mailed to
Defendants on November 16, 2016. (Id. ,r 73.)
Defendants had an insurance policy at the time that Plaintiffs commenced this suit.
(Id. ,r,r 99-102.) The insurance policy provides that the insurance coverage "is limited to
those areas for which governmental immunity has been expressly waived by 14 M.R.S.A.
§ 8104-A, as limited by 14 M.R.S.A. § 8104-B and 14 M.R.S.A. § 8104-A." (Id. ,r 101.)
Defendants assert that they have no other pertinent insurance coverage. (Id. ,r 103.)
B. Plaintiffs' Opposing Statement of Material Facts
M.R. Civ. P. 56(h)(2) provides that a party who opposes a motion for summary
judgment must "submit with its opposition a separate, short, and concise opposing
statement." In this opposing statement of material facts (Opp. S.M.F.) the nonmoving
8 party must make statements that "admit, deny, or qualify" each item of the moving
party's S.M.F, beginning each statement with the designation "Admitted," "Denied," or
"Qualified." If the nonmoving party chooses to "deny" or "qualify" an assertion in the
S.M.F., the party must support each denial or qualification with a specific citation to
evidentiary material that supports the assertion. The nonmoving party's Opp. S.M.F.
may also include objections to factual assertions in the moving party's S.M.F., with a brief
statement of the basis for the objection. The nonmoving party may also choose to submit
a separate statement with any additional facts (S.A.F.), set forth in separate numbered
paragraphs and supported by proper record citations, which the party contends raise a
disputed issue for trial. The court "need not consider any additional facts when, ..., they
are improperly commingled in the nonmoving party's paragraphs responding to the
moving party's material facts, ..., and are not set forth in a separate section of additional
facts organized in separate numbered paragraphs added pursuant to Rule 56(h)(2)."
Doyle v. Dep't of Human Servs., 2003 ME 61, ,r 11,824 A.2d 48. The moving party's S.M.F.
and the nonmoving party's Opp. S.M.F. and S.A.F. should be limited to factual matters
and are not spaces for the parties to engage in legal arguments with each other on the
merits of the issues. See e.g., Oceanic Inn, Inc. v. Sloan's Cove, LLC, 2016 ME 34, ,r 4 n.2, 133
A.3d 1021.
In response to Defendants' 18-page S.M.F., Plaintiffs filed a 194-page Opp. S.M.F
along with volumes of exhibits but without an accompanying S.A.F. Defendants contend
that the Court should disregard the entirety of Plaintiffs' response statement on the
grounds that Plaintiffs' submission blatantly fails to comply with the protocol set forth in
9 Rule 56(h) and explained by the courts. The defendants' characterization of the Opp.
S.M.F. is generally correct. The statement is the polar opposite of the "short" and
"concise" statement conceived in Rule 56. The Opp. S.M.F. is more than 10 times the
length of the S.M.F. Many of Plaintiffs responses improperly commingle legal argument
and commingle a great deal of additional facts that often go well beyond admitting,
denying, or qualifying the particular assertion in the S.M.F. being responded. Many of
Plaintiffs' responses to Defendants' assertions are laden with unnecessary and
inflammatory characterizations of the evidence and Plaintiffs own conclusions regarding
this evidence. Many responses are also repetitive and duplicative of each other. Many
of Plaintiffs assertions also are not properly supported by references to competent
evidentiary materials. The incessant commingling of additional facts, legal argument,
inflammatory characterizations of the evidence, and other issues often make Plaintiffs'
submission difficult to read and to parse what if any of the paragraphs in defendants'
S.M.F. are properly controverted or qualified by Plaintiffs' response.
In these circumstances, the Court would be well within its discretion to exclude
Plaintiffs Opp. S.M.F. from its consideration of Defendants' motion. See Oceanic Inn, Inc.
v. Sloan's Cove, LLC, 2016 ME 34, ,r 4 n.2, 133 A.3d 1021; First Tracks Invs., LLC v. Murray,
Plumb & Murray, 2015 ME 104, ,r,r 1-3, 121 A.3d 1279; Stanley v. Hancock County
Commissioners, 2004 ME 157, ,r,r 28-29, 864 A.2d 169. Nonetheless, the Court declines
Defendants' invitation to exercise this discretion in this case. The Court will not consider
any factual assertions in Plaintiffs' Opp. S.M.F. that are not appropriately supported by
proper references to evidentiary materials, nor will it consider any additional facts that
10 are improperly commingled in the statement. However, the Court will not discard the
entirety of Plaintiffs' response as Defendants' request. Because of the nature of Plaintiffs'
response, the Court will not attempt to summarize the contents of Plaintiffs' response
here but will instead address the matters raised in Plaintiffs' Opp. S.M.F. as necessary in
its analysis of the merits of this motion.
III. ANALYSIS
A. Maine Tort Claims Act
The Legislature enacted the MTCA, 14 M.R.S. §§ 8101-8118, to reestablish the
sovereign immunity of governmental entities in Maine from tort claims seeking money
damages, after the Law Court abrogated the common law immunity of these entities in
Davies v. City ofBath, 364 A.2d 1269, 1273 (Me. 1976). See Joseph & Catherine-Young v. Libby,
Cum-CV-96-473, 1997 Me. Super. LEXIS 206, *4-5 (July 17, 1997) (providing some of the
legislative history of the MTCA). Section 8103(1) of the MTCA provides that "except as
otherwise expressly provided by statute, all governmental entities shall be immune from
suit on any and all tort claims seeking recovery of damages." 14 M.R.S. § 8103(1).
Subsequent provisions in§ 8104-A set forth the limited circumstances under which the
Legislature has chosen to waive the immunity of governmental entities. 14 M.R.S. § 8104
A. Another waiver of immunity is found in§ 8116 providing that when a governmental
entity obtains liability insurance providing coverage for the tort claim brought against
the government entity, the governmental entity is deemed to have waived immunity to
11 the limits of the insurance coverage. 14 M.R.S. § 8116; Wilcox v. City ofPortland, 2009 ME
53, ,r,r 6, 12, 970 A.2d 295.
The MTCA additionally provides immunity to employees1 of governmental
entities in certain circumstances. These circumstances are set forth in§ 8111(1):
Notwithstanding any liability that may have existed at common law, employees of goverrunental entities shall be absolutely immune from personal civil liability for the following:
C. Performing or failing to perform any discretionary function or duty, whether or not the discretion is abused; and whether or not any statute, charter, ordinance, order, resolution, rule or resolve under which the discretionary function or duty is performed is valid;
D. Performing or failing to perform any prosecutorial function involving civil, criminal or administrative enforcement;
E. Any intentional act or omission within the course and scope of employment; provided that such immunity does not exist in any case in which an employee's actions are found to have been in bad faith; or
The absolute immunity provided by paragraph C shall be applicable whenever a discretionary act is reasonably encompassed by the duties of the goverrunental employee in question, regardless of whether the exercise of discretion is specifically authorized by statute, charter, ordinance, order, resolution, rule or resolve and shall be available to all governmental employees, ...
14 M.R.S. § 8111. The irnmunity provided to governmental entities and employees under
the MTCA extends to tort claims brought against cities and towns, their officials, and
1 The MTCA defines "employee" as meaning "a person acting on behalf of a governmental entity in any official capacity, whether temporarily or_ permanently, and whether with or without compensation from local, state or federal funds, including elected or appointed officials ..." 14 M.R.S. § 8102.
12 municipal employees. See 14 M.R.S. § 8102 (municipalities are governmental entities);
True v. Ladner, 513 A.2d 257, 1986 Me. LEXIS 844 (Me. 1986).
Other than governmental immunity, Defendants' principal argument for
summary judgment on many of Plaintiffs claims is that the claims are barred by the
MTCA' s limitations periods for providing a notice of claim and for commencing suit. The
MTCA establishes notice and filing deadlines for tort actions that are brought against
governmental entities or their employees. 14 M.R.S. §§ 8107, 8110. At the time this action
was commenced, § 8107 provided that a person bringing a tort claim against a
governmental entity or governmental employee must file a written notice of the claim
with the defendant "within 180 days" after the date the claim accrues, unless a claimant
shows "good cause" as to why "notice could not have reasonably been filed" within this
notice deadline. 14 M.R.S. § 8107 (2018). Section 8110 further provides that a person
seeking to recover on a claim covered by the MTCA must commence their suit in court
within 2 years after the cause of action accrues unless the claimant was a minor at the
time. 14 M.R.S. § 8110. If the person bringing the claim fails to comply with either§ 8107
or§ 8110, the claim may not proceed. 14 M.R.S. §§ 8107, 8110; Cushman v. Tilton, 652 A.2d
650, 651 (Me. 1995); Mueller v. Penobscot Valley Hosp., 538 A.2d 294,297 (Me. 1988).
In general, "a cause of action accrues when a plaintiff receive[s] judicially
recognized injury." McLaughlin v. Superintending Sch. Comm., 2003 ME 114, ,r 22, 832 A.2d
782. Tort claims, specifically, accrue "when the plaintiff sustains harm to a protected
interest." Id. "In other words, [a tort claim] accrues at the point at which a wrongful act
13 produces an injury for which a potential plaintiff is entitled to seek judicial vindication."
Id. 2
Civil rights claims brought under either the federal civil rights statute 42 U.S.C. §
1983 or the state civil rights statute are not "tort claims" that are subject to the MTCA's
limitations periods or immunity provisions. See Clifford v. Me. Gen. Med. Ctr., 2014 ME 60,
,r,r 48-51, 91 A.3d 567; Mueller v. Penobscot Valley Hosp., 538 A.2d 294, 295-298 & n.4 (Me. 1988) (holding that the MTCA "was not intended to apply to causes of action for "breach
of contract" or to "civil rights actions brought under 42 U.S.C. § 1983" and determining
that civil rights claims brought under § 1983 were not tort claims for purposes of the
MTCA); Doe Iv. Williams, 2013 ME 24, ,r 72, 61 A.3d 718 (the MCRA is patterned after 42
u.s.c. § 1983). Regarding the analysis of limitations defenses at the summary judgment stage, the
Law Court has stated that "[w]hen a defendant asserts in a motion for summary
judgment the affirmative defense of the expiration of a limitations period, the defendant
bears the burden of assembling a record of undisputed facts demonstrating that the
plaintiff's action is time-barred by the applicable statute of limitations." York Cty. v.
Propertylnfo Corp., 2019 ME 12, ,r 16, 200 A.3d 803. To withstand such a motion, the
plaintiff "bears the burden of demonstrating that the summary judgment record
generates a factual dispute about the running of the limitations period." Id.
2 The Law Court has recognized certain limited exceptions to this rule, but none are applicable in this case. McLaughlin, 2003 ME 114, ,r 22,832 A.2d 782.
14 B. Count I (Wrongful Use of Civil Proceedings)
To hold a defendant liable for wrongful use of civil proceedings the plaintiff must
demonstrate each of the following elements: (1) the defendant has "initiated, continued,
or procured civil proceedings without probable cause, (2) with a primary purpose other
than that of securing the proper adjudication of the claim upon which the civil
proceedings are based, and (3) the proceedings have terminated in favor of the party
against whom [the proceedings] are brought." Pepperell Trust Co., 1998 ME 46, ,r 17, 708
A.2d 651. The third element may be proven by demonstrating "the favorable
adjudication of the [allegedly wrongful civil] claim by a competent tribunal, the
withdrawal of the claim by the initial litigant, or the dismissal of the claim." Id. ,r 18.
Count I is a tort claim that is subject to the immunity and limitations provisions of
the MTCA. Relying on this fact, Defendants collectively argue that Plaintiffs cannot
proceed on Count I because: (i) the Town is entitled to governmental immunity and no
waiver of immunity applies and (ii) the Town's employees and officials, who Plaintiffs
have sued, are protected by discretionary function immunity pursuant to § 8111(1)(C).
Defendants' do not argue that Count I is barred by the limitations periods in §§ 8107 and
8110. See, Pepperell Tr. Co. v. Mountain Heir Fin. Corp., 1998 ME 46, ,r,r 17-21, 708 A.2d
651(a 'wrongful use of civil proceedings' claim accrues only when the underlying
proceeding concludes favorably to the party bringing the wrongful use of proceedings
claim).
Defendants are correct that Plaintiffs' wrongful use of civil proceedings claim
against the Town is barred by the MTCA's general grant of immunity. The Town is a
15 governmental entity covered by the MTCA and none of the enumerated waivers of
immunity in§ 8104-A are applicable. Nor do any facts in the summary judgment record
indicate that the Town has waived its immunity from the claim by acquiring insurance
coverage. (See Supp.'g S.M.F. ,r,r 99-103; Pls.' Opp. S.M.F. ,r,r 99-103.) Accordingly, the
Court grants summary judgment to the Town on Count I.
The individual Defendants' discretionary immunity argument requires a more
involved discussion. Maine's courts use a four-factor test to determine whether a
governmental employee is entitled to discretionary function immunity:
(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplislunent of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (3) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constilutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?
Lawson v. Willis, 2019 ME 36, ,r 9,204 A.3d 133. "The first, second, and fourth factors help
determine whether the governmental employee was performing or failing to perform an
official function or duty," while "[t]he third factor helps determine whether that function
or duty was discretionary in nature, as opposed to merely ministerial." Id. To qualify as
a "discretionary act" the defendant's activity must be one that "required the exercise of
judgment or choice." Id. The Law Court elaborated on this topic in Chiu v. City ofPortland,
2002 ME 8, ,r 20, 788 A.2d 183, explaining that "[c]onduct by a governmental employee
that involves the formulation of a basic government policy or that is pursuant to a statute,
regulation, or guideline that, expressly or impliedly, presumptively grounds the conduct
16 in government policy, is discretionary." In contrast, a mere "ministerial act11 - an action
that "is mandatory and requires no personal judgment or choice11 - does not qualify as a
"discretionary act11 under§ 8111(1)(C). Lawson, 2019 ME 36, ,r 9,204 A.3d 133.
"If an employee is entitled to discretionary function immunity, he will be shielded
from liability for those discretionary functions even if he abuses that discretion. 11
Hilderbrand v. Wash. Cly. Comm'rs, 2011 ME 132, ,r 9, 33 A.3d 425; 14 M.R.S. § 8111(1)(C)
(stating immunity exists "whether or not the discretion is abused"). However,
"discretionary function immunity does not extend to actions 'that so clearly exceed the
scope of the official's authority that the official cannot be said to be acting in an official
capacity."' Doe v. Graham, 2009 ME 88, ,r 19, 977 A.2d 391 (quoting Selby v. Cumberland
Cty., 2002 ME 80, ,r 6 n.5, 796 A.2d 678). Nonetheless, "[a]s long as the decisions are made
in furtherance of a governmental program or policy, the governmental actor is shielded
by the discretionary function immunity in the MTCA, even if the discretion is abused."
Carey v. Me. Bd. of Overseers of the Bar, 2017 Me. Super. LEXIS 269, at *21 (Oct. 25, 2017),
affd, 2018 ME 119, 192 A.3d 589 (explaining the Law Court's opinion in Graham); see also
Grossman v. Richards, 1999 ME 9, ,r 8, 722 A.2d 371 (concluding that a certain city's
"alderman11 was entitled to discretionary function immunity on claims arising from the
alderman's making of allegedly defamatory comments relating to the distribution of
public monies and conflicts of interest during a televised city council meeting, while the
alderman was acting as the alderman). "[T]he purpose of the discretionary function
immunity is to preserve ''independence of action without deterrence or intimidation by
the fear of personal liability and vexatious suits. 11 Grossman, 1999 ME 9, ,r 6, 722 A.2d 371;
17 see also Darling v. Augusta Mental Health Inst., 535 A.2d 421, 425 (Me. 1987) ("Tort liability
should not be imposed for conduct of a type for which the imposition of liability would
substantially impair the effective performance of a discretionary function.").
The particular challenged acts here are: (i) the actions that code enforcement officer
Ouellet and his supervisor, Christina Therrien, took in developing the Town's basis for
its first 80K enforcement action against Plaintiffs and recommending it for enforcement;
(ii) the decision of the Town's BOS member Don Chasse to authorize the suit along with
the other selectpersons; and (iii) Ouellet, Chasse, Therrien, Albert, and Fralliciardi' s
actions maintaining that 80K enforcement action. Defendant's S.M.F. establishes that all
of these acts and decisions plainly involved a basic governmental policy, the enforcement
of the Town's zoning ordinance. The S.M.F. also establishes that the actions of these
defendants such as, determining a violation existed, issuing a notice of violation, voting
that a violation had occurred, voting to bring the enforcement action, and choosing to
maintain that action in the courts, are all actions of a sort that denote activity undertaken
in furtherance of the Town's policy and objective of enforcing the zoning ordinance. It is
indisputable that the challenged actions by these defendants would require "the exercise
of basic policy evaluation, judgment, and expertise" regarding the Town's zoning
ordinance and the BOS's duties. It is also readily apparent from Defendants' S.M.F. that
the Town of Madawaska's BOS had the requisite authority to decide to initiate the
enforcement action and continue it, that the code enforcement officer had the requisite
authority to make a determination that Plaintiffs violated the ordinance, and that
18 Therrien had the authority to supervise Ouellet and attorney Currier's activities
concerning the enforcement action.
Plaintiffs argue in response that Ouellet, Therrien, and the BOS were aware that
Plaintiffs had not actually violated the Town's zoning ordinance when they, respectively,
issued the notice of violation and then decided to commence the enforcement action.
They argue that these defendants were aware that the suit was based on false claims and
that the defendants procured, instituted, and continued the action for the purpose of
punishing Plaintiffs for their involvement in local politics. Relying on these assertions,
Plaintiffs claim that all of these defendants were acting outside the scope of their
respective duties and that therefore, the defendants were not acting in their official
capacities. To support their assertions, Plaintiffs cite to various portions of the minutes
of the Town's BOS meetings on the matter, the Town ordinance, and documents such as
the notice of violation and complaint.
The Court has reviewed Plaintiffs' record references on these matters but contrary
to Plaintiffs' assertions, the court finds that those materials do not generate a reasonable
inference that the Defendants, individual or collectively, undertook or continued the
enforcement action against Plaintiffs in bad faith. Plaintiffs' assertions that the
defendants intentionally brought and maintained a bogus enforcement action against
Plaintiffs to punish them for their participation in the Town's government are merely
Plaintiffs' own speculative conclusions and skewed characterizations of the evidence.
Again, unless a governmental employee's actions while fulfilling his or her discretionary
function "clearly exceed[] the scope" of the employee's authority, the employee will be
19 deemed to have been acting in his or her official capacity. Hilderbrand, 2011 ME 132, ,r 9,
33 A.3d 425. Here, the evidence Plaintiffs have presented does not reasonably indicate
that any of the Defendants' conduct relating to the 2010 enforcement action clearly
exceeded the scope of any of their respective authorities and does not generate a genuine
factual dispute on the issue. Even if it were shown that Defendants were ultimately
incorrect that Plaintiffs violated the Town's ordinance, that finding would not lead to a
conclusion that Defendants were acting for an improper reason in undertaking and
maintaining the enforcement action.
Based on the parties' respective showings and the applicable law, the Court
concludes that there is no genuine issue of material fact in dispute and that the Town has
immunity from Count I under § 8103 of the MTCA. The Court further concludes that the
other defendants are protected from personal civil liability by discretionary function
immunity under § 8111. The Court therefore grants summary judgment to all Defendants
on Count I of the complaint.
C. Count II (Wrongful Use of Civil Proceedings)
The Court's analysis regarding Count I is the same as to Count II. The Town has
immunity from Count II as it constitutes a tort claim covered by the MTCA' s general
grant of immunity and no waiver of immunity is applicable. The individual defendants
are protected by the MTCA's discretionary immunity provision in§ 8111(1)(C), as they
claim, if these defendants are able show that their challenged actions were undertaken in
the course of fulfilling a discretionary function.
20 The challenged acts here consist of: (i) the actions the Town's employees and
officials undertook in issuing the notice of violation that formed the basis of the 2014
enforcement action; (ii) the actions of these individuals in recommending the purported
violation for enforcement; (iii) the decisions of the Town's BOS and Planning Board
members in determining that Plaintiffs violated the Town's ordinance; (iv) the respective
defendants' decisions to bring a civil suit against Plaintiffs for the violation and (v) the
respective defendants' decisions to maintain and litigate the enforcement action in the
courts. On these matters, the Defendant's S.M.F. contains factual assertions supported
by the record that establish that the defendants' actions involved a basis governmental
policy or function, that the defendants' actions and decisions were undertaken in
furtherance of the Town's policy and objective of enforcing its ordinance, that the
Defendants actions and decisions would "require the exercise of basic policy evaluation,
judgment, and expertise" regarding the Town's zoning ordinance and other applicable
rules, and that the defendants had the requisite authority to undertake their respective
actions and decisions regarding the 2014 enforcement action against Plaintiffs. The Town
defendants, therefore, are entitled to summary judgment on the grounds that they are
protected by discretionary function immunity under § 8111(1)(C), unless Plaintiffs
present facts which generate a genuine and material dispute on the issue.
Plaintiffs have responded by raising similar arguments to those they raised as to
Count I. They argue that the defendants never actually believed that Plaintiffs violated
the Town's ordinance and acted maliciously when they issued the notice of violation,
determined a violation existed, and then decided to commence the enforcement suit and
21 litigate it. They argue that the defendants brought this enforcement suit against Plaintiffs
knowing it was based upon false claims and for the purpose of punishing Plaintiffs.
Relying on these assertions, Plaintiffs claim that all of these defendants were acting
outside the scope of their respective duties and that therefore, the defendants were not
acting in their official capacities.
However, after reviewing the record, the Court finds that a reasonable fact-finder
could not find that the facts properly set forth in the summary judgment record show
that the defendants undertook their respective actions in bad faith and for the purpose of
punishing Plaintiffs. The record indicates that there is no genuine dispute as to whether
these defendants were acting outside the scope of their respective authorities during the
challenged acts at issue.3 Based upon the materials properly set forth in the record, the
3 As to defendant Albert, Plaintiffs' Opp. S.M.F. asserts that Albert impersonated a Town of Madawaska Planning Board Member at a board meeting on May 10, 2012, concerning Plaintiffs' application for the permit for which Code Enforcement Officer Ouellet eventually issued a noti.c for the violation on June 4, 2013. To support their assertion that Albert was impersonating a Planning Board member they refer to a document appearing to be a record of Albert's official oath of office and acceplance of appointment. Tilis document mdicates that Albert took the oath and accepted the office on June 28, 2012, after the May 10, 2012 Planning Board meeting. This document generates a factual dispute as to whether Albert acted in his official capacity at the May 10, 2012 planning board meeting. However, the Planning Board's actions at the May 10, 2012 meeting did not concern the 2014 enforcement action brought against Plaintiffs, it concerned only the issuance of the permit that the Town would eventually determine Plaintiffs violated. Plaintiffs' reference to Albert's official acceptance of appointment, does not indicate that Albert was acting outside his official capacity at the actual Planning Board meetmgs concerning Plaintiffs' June 4, 2013 notice of violation, which occurred after Albert was officially sworn in. The May 10, 2012 Planning Board meeting does not relate to the Town's 2014 enforcement. Accordingly, if Albert was in fact actmg as a member of the Planning Board at the May 10, 2012 meeting as Plaintiffs' claim, it would not support a determination that Albert was actmg outside of his official capacity at the actual Planning Board meetings when he voted and undertook the other actions that Plaintiffs base their wrongful use of civil proceedings claim against him upon. Moreover, the record does not indicate Albert was involved in the Town BOS's decision to commence the enforcement action against Plaintiffs nor involved in the litigation of that claim, nor does the record support Plaintiffs' conclusions that Albert was conspirmg with the other defendants to bring a meritless 80K enforcement action against the Town to punish them for their participation in local government.
22 Court concludes that all of the individual defendants are entitled to summary judgment
on Count II based on their immunity defense.
For all of the reasons set forth above, the Court grants summary judgment to all
Defendants on Count II of Plaintiffs' complaint.
D. Count III and Count VI (Abuse of Process)
An abuse of process claim may arise from "misuse of individual legal procedures,
such as discovery, subpoenas, and attachment, after a lawsuit has been filed, and the
misuse of the procedures for obtaining a lien." Jennings, 2015 ME 42, ,r 7, 114 A.3d 667.
"The filing of a lawsuit qualifies as a regular use of process and cannot constitute abuse
of process, even if the filing was influenced by an ulterior motive." Advanced Constr. Corp.
v. Pilecki, 2006 ME 84, ,r 22, 901 A.2d 189. To prove a defendant is liable for abuse of
process, the plaintiff must establish: (i) the defendant "initiated or used a court document
or process in a manner not proper in the regular conduct of proceedings, (ii) with the
existence of an ulterior motive, and (iii) resulting in damages to [the plaintiff]." Tanguay
v. Asen, 1998 ME 277, ,r 5, 722 A.2d 49; Jennings, 2015 ME 42, ,r 6, 114 A.3d 667; Saliem v.
Glovsky & Fogg, 132 Me. 402, 405-407 (1934); see also Simon v. Navon, 71 F.3d 9, 15 (1st Cir.
1995) (under Maine law, ''the two basic elements of abuse of process are a bad motive,
and the use of a legal process for an improper collateral objective").
The use of a legal process is improper if the defendant used the legal process "to
accomplish some unlawful end, or to compel the defendant to do some collateral thing
which he could not legally be compelled to do." See Saliem, 132 Me. 402, 405 (1934); see
also RESTATEMENT (SECOND) OF TORTS§ 682 (1977). "An 'ulterior motive' may consist of
23 seeking some collateral advantage or corresponding detriment to the plaintiff which is
outside the legitimate ends of the process." Thompson v. Brewster, Kno-CV-84-0015, 1988
Me. Super. LEXIS 129, at *47 (May 25, 1988). The existence of a wrongful motive may be
inferred from an improper act but an improper act cannot be inferred from a wrongful
motive alone. Simon, 71 F.3d at 17 (1st Cir. 1995) (applying Maine law); Saliem, 132 Me. at
405-407. If the defendant's use of process is "itself regular, the motive, ulterior or
otherwise, is immaterial" -the defendant's "bad intent must culminate in an actual abuse
of the process by perverting it to a use to obtain a result which the process was not
intended by law to effect." Saliem, 132 Me. at 405-406. In other words, there must be a
sufficient basis in the record for finding both that the defendant engaged in some
improper act and that this act was the means to further an improper purpose. Simon, 71
F.3d at 19.
Just as the Town has § 8103 immunity from Plaintiffs' wrongful use of civil
proceedings claims, it has§ 8103 immunity from Plaintiffs' abuse of process claims. It is
clearly established in the record that the Town is a governmental entity, Plaintiffs' abuse
of process claims are tort claims, and that none of the exceptions to governmental
immunity in§ 8104-A or the other sections of the MTCA apply to Plaintiffs' abuse of
process claims against the Town. Further analysis of the point is unnecessary. The Court
grants summary judgment to the Town on Count III and IV of Plaintiffs' complaint.
The Town's employees and officials raise affirmative defenses against this Count
based on the notice and filing limitation provisions found in § 8107 and § 8110 of the
MTCA and the immunity provisions in§ 8111(1). As to the notice of claim of defense, the
24 defendants assert that the only notice of claim provided to them was "mailed on
November 16, 2016." Relying on the 2018 version of§ 8107, Defendants argue that the
only legal processes that can be used to support Count III and IV are those legal processes
occurring in the 2010 and 2014 enforcement actions after May 20, 2016 (which is 180 days
prior to November 16, 2016.) They argue that the docket records in those actions show
that Defendants only engaged in two legal processes occurring after May 20, 2016, before
the cases were dismissed by agreement on September 7, 2016. These legal processes are
a subpoena to testify issued by the defendants to defendant Ouellet and Defendants'
attorney's participation in the September 7, 2016 conference that culminated in the
parties' agreement to dismiss. They argue that neither of these actions are indicative of
an improper act or ulterior motive and therefore, they are entitled to summary judgment
on Count III and IV. They further argue that the limitations period in§ 8110 bars Plaintiffs
from pursuing an abuse of process claim on any use of legal process that did not occur
within two years of the date they filed their complaint and that none of the defendants'
actions within that period provide the basis for an abuse of process claim. The Court will
address each of these matters in turn.
The Defendants have failed to establish their limitation defense related to the
notice of claim on this motion. As the Court previously noted, "[w]hen a defendant
asserts in a motion for summary judgment the affirmative defense of the expiration of a
limitations period, the defendant bears the burden of assembling a record of undisputed
facts demonstrating that the plaintiff's action is time-barred by the applicable statute of
limitations." York Cty., 20191\IB 12, ,r 16,200 A.3d 803. The defendants' assertion in ,r 73
25 of their S.M.F. that the only notice of claim Plaintiffs provided was on November 16, 2016,
is not properly supported by a record reference. ,r 73 cites solely to Plaintiffs' responses
to Defendants' requests for production, dated June 30, 2020, at request No. 13. The cited
portion of the discovery document indicates that Defendants requested Plaintiffs to
produce "all notices of claim or demands for payment. .. served by you or on your behalf.
. . that pertains to the occurrence or any injuries or damages that you claim were caused
by the occurrence" and that Plaintiffs responded by writing "See attached documents and
disk labelled 'USB."' Plaintiffs did not respond that the notice of claim was mailed on
November 16, 2016, nor are there documents or a "disk labelled USB" attached to
Defendant's S.M.F. exhibit indicating that the notice of claim was mailed on November
16, 2016. Because ,r 73 is not properly supported and no other portion of the S.M.F. sets
forth the date that Plaintiffs gave their notice of claim, Defendants have failed to carry
their burden of proof on their notice of claim limitation defense.
The Plaintiffs filed their complaint against Defendants with this Court on August
31, 2018.4 Section 8110 provides in pertinent part, "[e]very claim against a governmental
entity or its employees permitted under this chapter is forever barred from the courts of
this State, unless an action therein is begun within 2 years after the cause of action
accrues." 14 M.R.S. § 8110. The record reflects that the actions of the Defendants relative
to the Plaintiffs' claims set forth in Counts III and IV, that occurred after August 31, 2016
only involved participation in the September 7, 2016 conference that culminated in the
parties' agreement resulting in dismissal of all claims in both of the pending enforcement
4 The court notes the date of the filing in this matter pursuant to M.R.Evid. 201.
26 actions. Plaintiffs' claims for abuse of process based on conduct occurring before August
31, 2016 are barred by § 8110.
The success of Defendants' other defenses and arguments depends somewhat on
the level of involvement of each of the defendants in the 2010 and 2014 enforcement
actions after the Town decided to file suit in those actions. The summary judgment
record establishes that other than voting in favor of bringing the 2010 and 2014
enforcement actions against Plaintiffs at Town BOS meetings, defendants Fralliciardi and
Chasse were not involved in the litigation of the 2010 and 2014 enforcement suits. The
record also establishes that defendant Albert did not vote on bringing the actions against
Plaintiffs nor otherwise involved in litigating the Town's enforcement actions against
them. Plaintiffs' have failed to appropriately set forth facts that controvert those
assertions in Defendants' S.M.F. or set forth additional facts establishing Fralliciardi,
Chasse, or Albert's involvement in the Town's use of court process during those
enforcement actions. For these reasons, the Court concludes that Plaintiffs are unable to
and have failed to set forth a prima fade case of abuse of process against Fralliciardi,
Chasse, and Albert for actions pertaining to the 2010 and 2014 enforcement actions. The
Court therefore grants summary judgment to defendants Fralliciardi, Chasse, and Albert
on Counts III and IV.
The remaining claims in Count III and IV are those alleged against defendants
Therrien and Ouellet. As to Therrien and Ouellet, the Defendants' argument that
Plaintiffs are unable to prove the essential elements of the tort is not adequately
supported by their S.M.F. On this issue, Defendants assert only that (i) Therrien and
27 Ouellet monitored the work of and worked with the Town's attorney during that
litigation and (ii) "[a]ll of the documents filed and served on behalf of the Town in the
enforcement action filed in 2014 were used in a manner that was proper in the regular
conduct of the proceeding and they were not filed or served for any ulterior motive."
(Supp.'g S.M.F. ,r,r 23, 25, 64-65, 67.) None of these assertions are sufficient to refute an
essential element of Plaintiffs' claim or demonstrate that Plaintiffs are unable to obtain
evidence supporting those essential elements. Defendants' assertion in ,r 64 that all of
the legal documents filed and served on behalf of the Town were "used in a manner that
was proper" and "were not filed or for any ulterior motive" is a legal conclusion that
tracks the elements of the tort and is essentially taken verbatim from ,r,r 10 and 16 of
Town's attorney, Richard Currier's affidavit. Such an assertion is not a proper statement
of fact and does not lend support to Defendants' motion. See e.g., Levine v. R.B.K. Caly
Corp., 2001 ME 77, ,r 8 n.6, 770 A.2d 653; Town of Orient v. Dwyer, 490 A.2d 660, 662 (Me.
1985) ("Conclusions of fact and law do not properly belong in an affidavit filed in support
of a motion for summary judgment.").
The Court must proceed to review Defendants' Ouellet and Therrien S.l\lI.F. to
determine whether they have established that they are entitled to immunity under § 8111.
The portion of § 8111 most applicable in this circumstance is subsection (D) which
provides that governmental employees are "absolutely immune from personal civil
liability" for "performing or failing to perform any prosecutorial function involving civil,
criminal, or administrative enforcement." (emphasis added). In addition to the assertions
that Therrien and Ouellet monitored and worked with the Town's attorney Richard
28 Currier on the prosecution of the 2010 and 2014 enforcement actions, the S.M.F. also
asserts that Ouellet was "responsible for enforcement of the Town's land use and
development code" and that Town Manager Therrien was the direct supervisor of Ouellet
and "oversaw the administration of the Town of Madawaska including the execution of
all laws and ordinances." (Supp.'g S.M.F. ,r,r ,r,r 23, 25, 64-65, 78, 80-82.) These and the
other facts set forth in the S.M.F. are sufficient to establish that Therrien and Ouellet were
responsible for facilitating and overseeing the Town's prosecution of the 2010 and 2014
enforcement actions brought against Plaintiffs. It is also readily apparent that Ouellet
and Therrien' s part in monitoring and approving attorney Currier's litigation of these
enforcement actions fall within the broad scope of "performing or failing to perform any
prosecutorial function ..."that§ 8111(1)(D) refers to.
Plaintiffs again try to counter the Defendants' immunity defense by arguing that
Ouellet and Therrien' s uses of legal procedure while working with attorney Currier on
the 2010 and 2014 enforcement actions were undertaken in bad faith for the purpose of
punishing Plaintiffs for their participation in local politics. They argue that because
Ouellet and Therrien undertook these actions in bad faith, they were not acting in their
official capacity and cannot claim the protection of § 8111 immunity. The Court has
reviewed Plaintiffs' evidence as to these matters and finds that a jury could not
reasonably conclude that Ouellet and Therrien were acting in bad faith for the purpose
of punishing Plaintiff. Plaintiffs' assertions on these matters generally consist of their
own speculation and conclusions and are not properly supported by evidentiary
materials. The Court thus concludes that defendants Ouellet and Therrien have
29 established that they are immune from liability on Counts III and IV under§ 8111(1)(D)
and that Plaintiffs have failed to set forth facts generating a genuine material dispute on
the issue of immunity.
The Court grants summary judgment to the Town on Counts III and VI of the
complaint on the grounds that the Town is immune from suit under§ 8103 of the MTCA.
The Court grants summary judgment to defendants Chasse, Fralliciardi, and Albert on
Counts III and IV on the grounds that Plaintiffs are unable to sustain a prima fade case
of abuse of process against these defendants and based upon§ 8110. The Court grants
summary judgment to defendants Therrien and Ouellet on Counts III and N on the
grounds that they are immune from personal liability under§ 8111(1)(D) of the MTCA
and based upon § 8110.
E. Count V (Federal Civil Rights Claim, 42 U.S.C. § 1983)
Count V of the complaint alleges that all of the defendants are liable under 42
U.S.C. § 1983 for violating Plaintiffs' federal civil rights. 42 U.S.C. § 1983 provides
individuals with the right to bring a civil action against any person within the United
States jurisdiction who, acting under color state law, deprives the individual of his or
federal civil rights. The statute states in pertinent part:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State..., subjects, or causes to be subjected, any citizen of the United States...to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, ...
42 U.S.C. § 1983. To succeed in an action brought under§ 1983, the plaintiff must show
both: "(i) that the conduct complained of has been committed under color of state law,
30 and (ii) that this conduct worked a denial of rights secured by the Constitution or laws of
the United States." City of Old Town v. Dimoulas, 2002 ME 133, ,r 23,803 A.2d 1018; Collins
v. Nuzzo, 244 F.3d 246, 250 (1st Cir. 2001).5
In general, a governmental entity or governmental official sued in an official
capacity "is not a person subject to a section 1983 action for damages." Campaign for
Sensible Transp. v. Me. Tpk. Auth., 658 A.2d 213,216 (Me. 1995). However,§ 1983 permits
plaintiffs to "sue a governmental officer in [his or her] individual capacity for alleged
wrongs committed by the officer in [his or her] official capacity." Powell v. Alexander, 391
F.3d 1, 24 (1st Cir. 2004); Price v. Akaka, 928 F.2d 824, 828 (9th Cir. 1990); see also Melo v.
Hafer, 912 F.2d 628,636 (3d Cir. 1990), aff d, 502 U.S. 21 (1991). A plaintiff may maintain
a § 1983 action against a governmental employee in their personal capacity only if the
governmental employee is not entitled to qualified immunity. Creamer v. Sceviour, 652
A.2d 110, 112 (Me. 1995).
In addition, "[a] municipality or other local government" may be liable under §
1983 "if the governmental body itself 'subjects' a person to a deprivation of rights or
'causes' a person 'to be subjected' to such deprivation." Connick v. Thompson, 563 U.S. 51,
60 (2011) (quoting Monell v. Dept. of Soc. Servs. Of the City of New York, 436 U.S. 658, 692
(1978)). Local governmental entities "are not vicariously liable under § 1983 for their
employees' actions." Connick, 563 U.S. at 60. "Plaintiffs who seek to impose liability on
local governments under§ 1983 must prove that 'action pursuant to official municipal
5 The MTCA's limitation and immunity provisions are not applicable to federal civil ri h ts claims brought under§ 1983. See Oifford, 2014 ME 60, ,i 49, 91 A.3d 567; Mueller, 538 A2d 294, 295-298 & n.4 (Me. 1988) (holdin g that the MTCA, "was not .int nded to apply to causes of action for breach of contract" or to "civil rights actions brought under 42 U.S.C. § 1983.")
31 policy' caused their injury." Id. "Official municipal policy includes the decisions of a
government's lawmakers, the acts of its policymaking officials, and practices so persistent
and widespread as to practically have the force of law." Id.
Based on Plaintiffs' submissions on this motion, the Court understands that
Plaintiffs are grounding both their federal and state civil rights actions on their claims
that Defendants violated Plaintiffs' procedural due process rights, substantive due
process rights, and rights to equal protection. Collectively, Defendants seek summary
judgment on all of Plaintiffs' federal civil rights claims on the following grounds: (A) all
of Plaintiffs' claims that accrued outside of the applicable filing period i.e., namely, the
claims arising from the 2010 enforcement action are barred by the limitations period; (B)
Plaintiffs' have failed to/ are unable to present the elements of a prima facie case; and (C)
all of the individual defendants are protected by the common law doctrine of qualified
immunity. As noted earlier in this order, Plaintiffs' response to Defendants' statement of
material facts is disorganized, improperly presented, and in many places difficult to
understand. However, the Court will do its best to parse Plaintiffs' evidence and
arguments regarding their substantive due process, procedural due process, and equal
protection claims in the following sections and determine whether Defendants are
entitled to summary judgment on their federal claims. The Court will address Plaintiffs'
MCRA claims separately in another section of this order; however, the Court's analysis
of the federal civil rights claims should be seen as essentially coextensive with its analysis
of the state civil rights claims. See Clifford, 2014 ME 60, ,r 50, 91 A.3d 567; Doe v. Williams,
2013 ME 24, ,r 72, 61 A.3d 718.
32 i. Procedural Due Process
The due process clauses of the Fourteenth Amendment of the United States
Constitution and article 1, section 6-A of the Maine Constitution, protect "against the
exercise of arbitrary governmental power and guarantee[ ] equal and impartial
dispensation of law according to the settled course of judicial proceedings or in
accordance with fundamental principles of distributive justice." Duffy v. Town of Berwick,
2013 ME 105, ,r 15, 82 A.3d 148. The protections provided by the state and federal due
process clauses are normally separated into "substantive due process" and "procedural
due process" rights. "The basic difference between a substantive and a procedural due
process claim is that procedural due process requires that the procedures provided by
the state in effecting ~he deprivation of liberty or property be adequate in light of the
affected interest, while substantive due process imposes limits on what a state may do
regardless of what procedural protection is provided." Doe v. Bd. of Osteopathic Licensure,
2020 ME 134, ,r 20 n.8, 242 A.3d 182. To pursue either a substantive or procedural due
process claim, the plaintiff must be able to demonstrate "state interference with a
cognizable property or liberty interest." Carroll F. Look Constr. Co. v. Town of Beals, 2002
ME 128, ,r 11,802 A.2d 994.
The Law Court addressed the meaning of what constitutes procedural due process
in the context of municipal land use boards in Duffy. The Law Court remarked in that
opinion that "what constitutes due process in a municipal board hearing...depends
primarily upon the nature of the proceedings and the possible burden upon that
33 proceeding." Duffy, 2013 ME 105, ,r 16, 82 A.3d 148. The Law Court then provided the
following as an explanation of what process may be due in different municipal board
contexts:
[W]hen governmental agencies adjudicate or make binding determinations which directly affect the legal rights of individuals, it is imperative that those agencies use the procedures which have traditionally been associated with the judicial process. On the other hand, when governmental action does not partake of an adjudication, as for example, when a general fact finding investigation is being conducted, it is not necessary that the full panoply of judicial procedures be used ... The nature of the alleged right involved, the nature of the proceeding, and the possible burden on that proceeding, are all considerations which must be taken into account.
Duffy, 2013 ME 105, ,r 16, 82 A.3d 148. As further guidance, the Law Court has stated in
the municipal context that "[i]t is essential to a party's right to procedural due process
that he be given notice of and an opportunity to be heard at proceedings in which his
property rights are at stake." Mutton Hill Estates, Inc. v. Oakland, 468 A.2d 989, 992 (Me.
1983). It has further stated in the municipal context, that "the essential elements of
adjudication include the right to present evidence and rebut opposing evidence." Lamarre
v. Town of China, 2021 ME 45, ,r 13, 259 A.3d 764 (referencing Town of Ogunquit v. Cliff
House & Motels, Inc., 2000 ME 169, ,r 11, 759 A.2d 731). Of particular importance to this
case, the Law Court and the courts of other jurisdictions have held that a procedural due
process claim does not arise from an administrative proceeding where the law provides
access to judicial review of the administrative proceeding that would provide the means
to correct the alleged due process violation. See e.g., Cayer v. Town ofMadawaska, 2016 ME
143, ,r 16, 148 A.3d 707 (articulating, in relation to a civil rights claim for violations of due
process and First Amendment rights, that when direct review of a municipal proceeding
34 is available it is the "exclusive process for judicial review unless it is inadequate" and
holding that BOB review was available to "correct any process errors" that occurred
during a town's decision making process on a petition to secede); Mongeau v. City of
Marlborough, 462 F. Supp. 2d 144, 150 (D. Mass. 2006) ("Even a bad faith refusal to follow
state law in local administrative matters does not amount to a deprivation of due process
where the state courts are available to correct the error.")
After reviewing the record, it is apparent to the Court that if the facts which are
properly presented in Defendants' S.M.F. are not controverted and other facts are not
raised, Defendants would be entitled to summary judgment on Plaintiffs' procedural due
process claims on the grounds that Plaintiffs appear unable to sustain a prima facie case.
The burden is therefore on Plaintiffs to properly set forth the necessary facts to support
their claim. As previously mentioned, Plaintiffs' Opp. S.M.F. is generally not compliant
with the required procedure set forth in M.R. Civ. P. 56 and is, in general, difficult to
understand and filled with commingled legal arguments and additional matters that are
not appropriately included in an Opp. S.M.F. However, from the Court's reading of
Plaintiffs' submission, it appears that Plaintiffs are grounding their procedural due
process claim on the following:
• The Town a11d Defendants' conduct during the August 12, 2013, Planning Board Meeting, which was held for the Planning Board to "revisit" the matter of whether Plaintiffs had violated a previously issued permit by removing more than 50% of the value of the existing structure from their property.
o Plaintiff's claim that the Defendants violated Plaintiffs' due process rights at this meeting by maliciously:
• Ignoring or disregarding Plaintiffs' arguments and the information provided by the professional appraisal of the property at issue.
35 • Communicating (i.e., the Planning Board members) "ex parte" with a Department of Env:ironrnental Protection employee, Stephanie MacLagan about Plaintiffs' violation without communicating with Plaintiffs about these discussions • Allowing Jeff Albert to participate as a Planning Board member at the meeting when he was not officially a member of the board and when he wished to participate for the purpose of depriving/ denying Plaintiffs' their right to build and otherwise to hann Plaintiffs. • Determining at the meeting that Plaintiffs had removed 50% of the value of the structure on their property; when ·the Planning Board only had the authority to receive Plaintiffs' evidence and arguments and to discuss the issue.
• The Town's ordinance deprived Plaintiffs of the right to appeal the Planning Board's determination that Plaintiffs had removed more than 50% of the structure from their land covered by their permit.
• The Town and Defendant's conduct during the September 3, 2013 Board of Selectpersons meeting, which was held for the BOS to determine whether Plaintiffs had violated the terms of their building permit.
o Plaintiffs' claim that the Defendants violated Plaintiffs' due process rights at this meeting by maliciously:
• Failing to provide Plaintiffs with the BOS's communication with Department of Environmental Protection employee MacLagan concerning PlaintiffsJ building permit.
• Failing to postpone the meeting upon Plaintiffs' written request (a letter purportedly received by the BOS on September 2, 2013), which was based on Plaintiffs' claims that they needed time to review the DEP' s communications concerning their permit, claims that two members of the BOS were biased against them, and other matters.
• Failing to discuss Plaintiffs' purported violation of the building permit before voting and determining that Plaintiffs had violated the permit.
• The Town's ordinance did not provide them the right to appeal the BOS' s decision at this meeting.
36 • The Town, maliciously, amended its com.plaint:6 against Plaintiffs regarding Plaintiffs purported land use violation in 2010 by adding an additional land use violation claim without following the Town's procedw:e for taking land use enforcement actions against individuals. Regarding Plaintiffs' above assertions, the Court will first note that Plaintiffs have
generally failed to present these matters in the form required by Rule 56. This failure to
substantially comply with the applicable summary judgment procedure provides
sufficient grounds to conclude that Plaintiffs have failed to properly present a prima facie
case of a procedural due process claim that is remediable under the federal civil rights
statute.
However, even when these procedural failures are overlooked and Plaintiffs'
assertions and evidence are examined and viewed in the light most favorable to Plaintiffs,
a reasonable trier of fact could not conclude based on Plaintiffs' showing that Defendants
acted for the purpose of punishing them for participating in local politics or otherwise
for the purpose of harming Plaintiffs. More importantly, none of Plaintiffs' asserted
deprivations of process during the August 12, 2013 Planning Board meeting or the
September 3, 2013 Board of Selectpersons meeting can support a civil rights claim
founded on deprivation of procedural due process rights because the law afforded
Plaintiffs the ability to challenge the defendants' purported actions during these
proceedings and seek redress by bringing a timely petition for judicial review under M.R.
Civ. P. BOB. See Cayer, 2016 ME 143, ,r 16, 148 A.3d 707; Mongeau v. City ofMarlborough,
6 Although Defendants raise a statute of limitations defense as to the claims l'elated to the 2010 enforcement action,, U,e Court notes that the primary issues raised by Plaintiffs as to the 2010 enforcement action relates to the amended complaint filed after leave of Cowt granted on January 24, 2013 and actions at public meetings subsequent, all within the 6 year statute of limitations period. The Cou;rt m,ay only consider events that occurred within the limitations period and relate to the pending complaint.
37 462 F. Supp. 2d 144, 150 (D. Mass. 2006) ("Even a bad faith refusal to follow state law in
local administrative matters does not amount to a deprivation of due process where the
state courts are available to correct the error.") Plaintiffs' choice not to avail themselves
of the entirety of their procedural rights by pursuing a remedy for these alleged
deprivations through the Rule BOB judicial review process does not allow them to
afterward now claim that they were deprived of procedural due process rights in those
administrative proceedings. Because the BOB review process was available to correct
Plaintiffs' alleged deprivations of procedural due process during the administrative
proceedings at issue, it cannot be said that Plaintiffs were denied procedural due process
on these matters. This analysis remains the same even if it is assumed that Plaintiffs are
correct that the Town enacted an ordinance barring judicial review under Rule BOB and
even if Plaintiffs are correct that members of the Town's Planning Board and BOS were
biased and acting maliciously against them during the administrative proceedings.
Similarly, Plaintiffs' assertion regarding the Town's amendment of a complaint
against Plaintiffs, adding an additional and purportedly false land use enforcement
claim, is not supportive of their action for deprivation of procedural rights. If the Town's
amendment of its complaint somehow violated Plaintiffs procedural due process rights,
Plaintiffs were able to seek adequate remedies through the courts by opposing the Town's
amendment of the complaint through the normal judicial process. The procedure set
forth in the Maine Rules of Civil Procedure and Maine Rules of Appellate Procedure for
challenging such an activity was sufficient to safeguard Plaintiffs' procedural due process
rights relating to that matter.
38 For all of these reasons, the Court concludes that Plaintiffs have failed to show
that they are able to produce the necessary evidence to sustain a civil rights action for
deprivation of procedural due process rights under 42 U.S.C. § 1983. The Court grants
Defendants' summary judgment on Count V to the extent it seeks relief for alleged
deprivations of constitutional, procedural due process rights.
ii. Substantive Due Process
The substantive due process guarantee of the Fourteenth Amendment protects
against governmental actions that are arbitrary and oppressive. Cty. of Sacramento v.
Lewis, 523 U.S. 833, 845-46 (1998). To succeed on a substantive due process claim premised
on the actions of governmental employees or officials, as the Cayers' action is here, the
plaintiff must show that the government has engaged in conduct that "shocks the
conscience and violates the decencies of civilized conduct." LeGrand v. York Cnty. Judge of
Prob., 2017 ME 167, ,r 38, 168 A.3d 783 (quoting Lewis, 523 U.S. 833 at 846). This standard
is extremely difficult to satisfy. As the First Circuit Court of Appeals has explained, "[t]he
burden to show governmental conduct that 'shocks the conscience' is extremely high,
requiring 'stunning' evidence of 'arbitrariness and caprice' that extends beyond '[m]ere
violations of state law, even violations resulting from 'bad faith' to 'something more
egregious and more extreme."' J.R. v. Gloria, 593 F.3d 73, 80 (1st Cir. 2010); see also Lewis,
523 U.S. at 846 ("Our cases dealing with abusive executive action have repeatedly
emphasized that only the most egregious official conduct can be said to be arbitrary in
the constitutional sense."); DePoutot v. Raffaelly, 424 F.3d 112, 119 (1st Cir. 2005) ("Mere
violations of state law, even violations resulting from bad faith, do not necessarily
39 amount to unconstitutional deprivations of substantive due process.")i Collins v. Harker
Heights, 503 U.S. 115, 128-129 (1992) (stating that the substantive component of the
Fourteenth Amendment's Due Process Clause is violated by the actions of governmental
officers only when it"can properly be characterized as arbitrary, or conscience shocking,
in a constitutional sense.");
Turning again to the merits, the Court finds the facts presented in Defendants'
S.M.F. sufficient to shift the burden on this motion to Plaintiffs to produce evidence
sufficient to sustain a prima facie case for their substantive due process claims. The
substantive due process component of Plaintiffs' § 1983 claim appears to generally be
based on the following assertions:
• The Town and the named defendants who were or are employees or officials of the Town, conspired and acted together to violate Plaintiffs' constitutional rights by developing a false basis for and then issuing notices of violation on June 3, 2010 and June 4, 2013 against Plaintiffs for violating the Town's land use ordinance.
• The Town and the named defendants then continued to conspire and act together during administrative enforcement proceedings to harm Plaintiffs and deprive them of their rights by perverting the administrative proceedings, determining Plaintiffs were in violation of the Town's ordinance, and then deciding to bring civil enforcement actions against Plaintiffs based on the purportedly false notices of violation.
• The Town and named defendants then abused Plaintiffs rights further by filing and maintaining meritless SOK enforcement actions in the courts and purportedly making many false statements during these proceedings to support the purportedly meritless actions and doing all of this for the purpose of harming Plaintiffs.
• The Town and named defendants undertook all of the above actions for the malicious purpose of punishing Plaintiffs for their participation in local politics and harming them generally.
40 As the Court has previously discussed, Plaintiffs' Opp. S.M.F. does not properly present
facts from which a reasonable trier of fact could conclude that Defendants undertook the
actions Plaintiffs allege for the purpose of harming Plaintiffs or that Defendants
conspired together in bad faith to achieve that end. Plaintiffs' showing on those matters
amounts to little more than a collection of Plaintiffs' own speculative conclusions as to
Defendants' intentions. Even if Plaintiffs were able to successfully show that the Town
and its employees were wrong from the beginning in believing that Plaintiffs violated the
ordinance, that the Town's enforcement actions were in fact meritless, and that the Town
incorrectly applied its own laws and procedure during the administrative proceedings,
Plaintiffs would not be able to sustain a prima fade case on their substantive due process
claims. Having failed to present adequate evidence to support their conclusions that
Defendants acted against them for malicious purposes, Plaintiffs are unable to meet their
burden of producing "stunning evidence" of arbitrary and oppressive governmental
action that "shocks the conscience" in a "constitutional sense."
As Plaintiffs have failed to properly present facts that would sustain a prima fade
case for a federal civil rights claim seeking relief for a violation of substantive due process
rights, the Court grants Defendants' motion for summary judgment on Count V to the
extent it seeks relief for violations of substantive due process rights.
iii. Equal Protection
To prevail on a§ 1983 claim for the violation of equal protection rights, the plaintiff
must be able to prove that "compared with others similarly situated, the [plaintiff] was
selectively treated based on impermissible considerations such as race, religion, intent to
41 inhibit or punish the exercise of constitutional rights, or malicious or bad faith intent to
injure a person." Marshall v. Town of Dexter, 2015 ME 135, ,r,r 30-31, 125 A.3d 1141
(discussing the elements that must be alleged in a complaint seeking relief on an equal
protection claim); Tapalian v. Tusino, 377 F.3d 1, 5 (1st Cir. 2004). In this case, Plaintiffs do
not claim that they are a member of a particular class of persons with a particular attribute
but instead, claim that they were selectively treated differently as individuals. When "a
person alleges selective treatment as an individual and not a member of a specific class,
that class-of-one plaintiff bears the burden of showing that his comparators are similarly
situated in all respects relevant to the challenged government action." Marshall, 2015 ME
135, ,r 30, 125 A.3d 1141; Gianfrancesco v. Town of Wrentham, 712 F.3d 634, 640 (1st Cir.
2013). "Conclusive generalities asserting that the plaintiff was treated differently will not
suffice" to support the claim. Marshall, 2015 ME 135, ,r 31, 125 A.3d 1141; Polk, 2000 ME
152, ,r,r 15-16, 756 A.2d 510 ("vague allegations" about a municipal code enforcement
officer's "impermissible reason" for opposing a plaintiff's permit application were
insufficient to support an equal protection claim); see also Gianfrancesco, 712 F.3d at 640.
Instead, to prevail on an equal protection claim, the plaintiff must be able to produce
sufficient evidence from which a jury could reasonably determine that the challenged act
or omission had a discriminatory effect and that the challenged act or omission had a
discriminatory purpose. Marshall, 2015 ME 135, ,r 30, 125 A.3d 1141; Polk v. Town ofLubec,
2000 ME 152, ,r 14, 756 A.2d 510 ("In order to establish a constitutional equal protection
violation based on selective prosecution or selective enforcement, a plaintiff must at a
minimum establish 'that the challenged decision ... had a 'discriminatory effect and that
42 it was motivated by a discriminatory purpose. 1" ) ; see also Wayte v. United States, 470 U.S.
598,608 (1985).
Plaintiffs have failed to present sufficient evidence to support an equal protection
claim here. Plaintiffs' equal protection claim appears to be based on their assertions that
during various Town administrative proceedings on their land use violations, such as the
September 3, 2013 Board of Selectpersons meeting, Defendants treated Plaintiffs' more
harshly than other residents of the Town who were at the meeting for land use violations.
Plaintiffs also assert that the Town's decisions to commence the 2010 and 2014
enforcement actions were discriminatory, as such actions were not brought against other
similar land use violators. Plaintiffs' assertions on these points are largely based on their
own characterizations and conclusions regarding what occurred at the administrative
proceedings and their conclusion that the Town was acting maliciously to harm them as
punishment for their participation in local politics. Plaintiffs' showing is not sufficient to
allow a reasonable jury to conclude that Defendant's actions had a discriminatory effect
and were motivated by a discriminatory purpose. In particular, Plaintiffs' showing falls
far below what is necessary to proceed as "class-of-one" plaintiffs, as they have failed to
show that their comparators are similarly situated in all respects relevant to the
challenged actions by the Town and its employees and officials. See Marshall, 2015 ME
135, ,r 30, 125 A.3d 1141.
Having now concluded that Plaintiffs have failed to produce sufficient evidence
to sustain an equal protection claim under 42 U.S.C. § 1983, the Court grants Defendants'
motion for summary judgment on Count Vin its entirety.
43 F. Count VI (State Civil Rights Claim, 5 M.R.S. § 4682)
The Maine Civil Rights Act (MCRA) is "patterned after 42 U.S.C. § 1983." Jenness,
637 A.2d at 1158. Section 4682 of the MCRA authorizes a private civil action against"any
person" who "intentionally interferes or attempts to intentionally interfere by physical
force or violence, damage or destruction of property or trespass on property or by the
threat of physical force or violence against a person, damage or destruction of property
or trespass on property with the exercise or enjoyment by any other person of rights
secured by [state or federal constitutional or statutory law}." 5 M.R.S. § 4682(1-A);
Saunders v. Tisher, 2006 ME 94, ,r 24, 902 A.2d 830. An MCRA civil rights claim is not a
"tort claim" and therefore the MTCA's immunity and filing limitation provisions are
inapplicable to such claims. See Clifford, 2014 :t\IB 60, ,r 51, 91 A.3d 567.
After reading Plaintiffs' submission, it is apparent to the Court that Plaintiffs'
MCRA claim is based upon the same alleged deprivations of constitutional rights and
relies upon the same assertions upon which they based their§ 1983 claim. 7 For this reason
and the close relationship between the federal and state causes of action, the Court's
analysis of Plaintiffs' section 1983 claims is equally applicable to their MCRA claims.
Plaintiffs' Opp. S.M.F. does not properly present the necessary facts to sustain an MCRA
claim based on deprivations of procedural due process, substantive due process, or equal
protection rights, for the same reasons why the Court has determined that Plaintiffs' Opp.
S.M.F. is not adequate to sustain their§ 1983 claims. Plaintiffs' MCRA claims also fail
7 To support thei.rMCRA claim, Plaintiffs rely in particular on their assertion that Defendants comme'nced and maintained frivolous Land use enforcement actions against them in the M aine courts, resulting in damages and the deprivation of their civil rights.
44 because Plaintiffs' have not properly presented the necessary facts to establish, prima
fade, that Defendants "intentionally interfered" or attempted to "intentionally interfere"
by "physical force or violence, damage or destruction of property, or trespass on
property" or by the threat of such actions, with Plaintiffs' civil rights. Plaintiffs'
assertions in regard to Defendants' intent to interfere with Plaintiffs' civil rights in the
manner described in§ 4682 appear to be based on their own speculative conclusions
rather than on facts supported by competent evidence. For all of these reasons, the Court
concludes that Plaintiffs have failed to properly present the requisite facts necessary to
sustain their burden of proof and avoid summary judgment on Count VI. The Court
therefore grants summary judgment to all of the defendants on Count VI of the
Complaint.
G. Count VII (Intentional Infliction of Emotional Distress)
To hold a defendant liable for intentional infliction of emotional distress, a plaintiff
must prove four essential elements:
(1) either that the defendant intentionally or recklessly inflicted severe emotional distress or that his or her conduct was substantially certain to inflict severe emotional distress, (2) that the defendant's conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious and utterly intolerable in a civilized community, (3) that the defendant's conduct caused the plaintiff's emotional distress, and (4) that the emotional distress was so severe that no reasonable person could be expected to endure it.
Bratton v. McDonough, 2014 ME 64, ,r 22, 91 A.3d 1050. "Where reasonable people may
differ, it is for the jury ... to determine whether, in a particular case, the conduct has been
45 sufficient!y extreme and outrageous to result in liability." Id. (quoting Colford v. Chubb Life
Ins. of Am., 687 A.2d 609, 616 (Me. 1996)). Showing merely "serious emotional distress"
or"general feelings of upset and defeat" is"insufficient to establish a claim for intentional
infliction of emotional distress." Argereow v. Weisberg, 2018 ME 140, ,r 19, 195 A.3d 1210;
Lyman v. Huber, 2010 ME 139, ,r,r 19, 24-26, 10 A.3d 707 (holding that a plaintiff's "serious
emotional distress" resulting from 15 years of emotional abuse by her domestic partner
was not "so severe that no reasonable person could be expected to endure it.")
Plaintiffs' IIED claim against the defendants is subject to the provisions of the
MTCA. Defendants have established through their motion that the Town is a
governmental entity and has immunity from this tort claim under § 8103 unless an
exception to immunity applies to the claim. Upon review of the record, it is apparent that
none of the exceptions set forth in§ 8104-A or the other sections of the MTCA apply to
Plaintiffs' IIED claim against the Town. Accordingly, the Court grants summary
judgment in favor of the Town on Count VII.
The individual defendants make two main arguments that the Court should grant
summary judgment in their favor on Count VII, the affirmative defenses of discretionary
immunity under§ 8111 and limitations periods provided in§ 8107 and§ 8110. However,
the matters set forth in Defendants' motion also indicate, as an initial matter, that
Plaintiffs are unable to produce the facts necessary to sustain a prima facie case of IIED
against the defendants. Again, to prove a prima facie case of intentional infliction of
emotional distress, the plaintiff must be able to produce evidence from which a jury could
reasonably conclude that the defendant's "extreme" and "outrageous" conduct caused
46 the plaintiffs to suffer emotional distress that "was so severe that no reasonable person
could be expected to endure it." Bratton, 2014 ME 64, ,r 22, 91 A.3d 1050. As discussed in
previous sections of this Order, Plaintiffs' claims that the Town, the Town's code
enforcement officer, town manager, attorney, Planning Board members, and BOS
members acted to commence and maintain enforcement actions against Plaintiffs in bad
faith for the purpose of harming Plaintiffs and punishing them for participation in local
politics are not properly supported by competent evidence in the record but instead,
appear to be based merely on Plaintiffs' own speculative conclusions and
characterizations of the evidence. Even if Plaintiffs are correct that they did not actually
engage in any conduct that violated the Town's ordinance and that the Town was wrong
to bring enforcement actions against them, without a finding that Defendants acted in
bad faith in pursuing the enforcement actions, Plaintiffs' are unable to generate a genuine
dispute as to whether Defendants engaged in the requisite "extreme" and "outrageous"
conduct and are unable to generate a genuine dispute as to whether this purported
conduct caused Plaintiffs to suffer "severe" emotional distress within the meaning of
Maine's tort law. Without a finding that Defendants acted maliciously when pursuing
the enforcement actions against Plaintiffs, a jury could not reasonably conclude that by
undertaking the enforcement actions against Plaintiffs the defendants engaged in
conduct "so extreme and outrageous as to exceed all possible bounds of decency and
must be regarded as atrocious and utterly intolerable in a civilized community." Even if
ultimately incorrect as to whether a violation occurred, it cannot be legitimately argued
that a municipal employee or official engaged in actions that were "extreme",
47 "outrageous", and exceeded "all possible bounds of decency" by merely pursuing a land
use enforcement action against a resident of the municipality, when those actions are not
shown to be for a malicious purpose. Moreover, Plaintiffs have not properly presented
sufficient facts in response to the motion to support a finding that Defendants' conduct
caused Plaintiffs to suffer the high degree of emotional distress required to sustain an
IIED action in Maine. For all of these reasons, the Court concludes that Plaintiffs have
failed to meet their burden on this motion to properly present facts that would support a
prima fade case of IIED.
In sum, the Court concludes that Defendants' motion is sufficient to shift the
burden to Plaintiffs to produce and properly present the necessary facts to sustain a prima
fade case of IIED and that Plaintiffs have failed to meet this burden, as their showing
would not allow a jury to reasonably find that Defendants' engaged in "extreme" and
"outrageous" conduct nor allow a jury to find that this conduct caused Plaintiffs to suffer
"severe emotional distress" as required by Maine law. It is therefore unnecessary for the
Court to decide on whether the defendants' affirmative defenses apply to this claim.
Accordingly, the Court grants summary judgment in favor of Defendants on Count VII
of the Complaint.
H. Count VIII (Negligent Infliction of Emotional Distress)
To succeed on a claim for negligent infliction of emotional distress (NIED), the
plaintiff must "set forth facts from which it could be concluded that (1) the defendant
owed a duty to the plaintiff; (2) the defendant breached that duty; (3) the plaintiff was
harmed; and (4) the breach caused the plaintiff's harm." Coward v. Gagne & Son Concrete
48 Blocks, Inc., 2020 ME 112, ,r 14, 238 A.3d 254. "Plaintiffs claiming negligent infliction, ...,
face a signilicant hurdle in establishing the requisite duty" because "duty," in these
circumstances, "is not generated by traditional concepts of foreseeability." Curtis v. Porter,
2001 ME 158, ,r 18, 784 A.2d 18. In Maine, a defendant is only considered to have a duty
to avoid negligently causing emotional harm in three situations: (1) in "bystander liability
actions," if certain requirements are met; (2) where a "special relationship exists between
the actor and the person emotionally harmed"; and (3) "when the wrongdoer has
committed another tort" and the NIED claim is not "subsumed" in the award for
emotional or mental damages entered on the separate tort. Curtis, 2001 ME 158, ,r 19, 784
A.2d 18. Additionally, the Law Court has held that to recover on a NIED claim, the
plaintiff must prove "severe emotional distress." Id. ,r 20.
As the Court has concluded in this Order that Defendants are entitled to summary
judgment on all of Plaintiffs other tort claims, Plaintiffs may only proceed on Count VIII
if they are able to produce sufficient evidence to support the claim based on a "bystander
liability" theory or a "special relationship" theory. Curtis v. Porter, 2001 ME 158, ,r 19, 784
A.2d 18. However, Plaintiffs have not made any claim for liability based on a bystander
status theory nor have Plaintiffs advanced any claim for liability based on a "special
relationship" theory. Nor would such claims have prima facie support from facts in the
summary judgment record if such claims were made. Moreover, the Court's previous
conclusion that Plaintiffs have not properly presented prima facie proof that they have
suffered "severe emotional distress" as to their IIED claim is equally applicable to their
NIED claim. Curtis, 2001 ME 158, ,r 19, 784 A.2d 18 (to recover on an NIED claim, the
49 plaintiff must prove "severe emotional distress"). Accordingly, because Plaintiffs' have
failed to produce prima fade proof of all of the elements of the cause of action, they are
unable to proceed on their NIED claim against the defendants.
The Court concludes that Plaintiffs have failed to produce and properly present
the facts necessary to support a prima fade case for negligent infliction of emotional
distress in Maine. It is therefore unnecessary for the Court to decide on whether the
defendants' affirmative defenses apply to this claim. As Plaintiffs' have failed to meet
their burden as to this claim, Defendants' motion for summary judgment is granted as to
Count VIII.
IV. CONCLUSION
After fully reviewing the summary judgment record and the parties' arguments,
the Court has concluded that Defendants are entitled to summary judgment on all counts
of Plaintiffs' complaint. Accordingly, the Court grants Defendants' motion and enters
summary judgment against Plaintiffs on all Counts of the Complaint.
Entry:
Defendants' Motion for Summary Judgment is GRANTED.
The Clerk shall incorporate this order on the docket by reference pursuant to M.R.
Civ. P. 79(a).
Date
I ENTERED ON THE DOCKET ___ ~ 50 STATE OF MAINE SUPERIOR COURT CIVIL DOCKET AROOSTOOK, ss DOCKET NO. CARSC-CV-18-135
RICHARD CAYER and ) ANN CAYER ) PLAINTIFFS ) vs. ) ORDER REGARDING ) MEDIATION FEE ) RULE 16B ) TOWN OF MADAWASKA, et al ) DEFENDANT )
Before the court is the litigants' dispute regarding division of the mediation fee. Phone
conference with counsel was held May 3, 2019. Plaintiffs commenced this action against the
Town of Madawaska plus five individuals who each were employees or agents of the Town
during the time the causes of action accrued. The Plaintiffs assert there are six separate
defendants and therefore the defendants collectively should pay 617th of the mediation fee and
they pay 117th. The Defendants maintain that although there may be six different defendants
named, they are collectively one body, who all are under the umbrella of the Town. Defendants
further maintain that each individual defendant was an employee or agent of the Town, and in
the end, if any liability is established it will he assumed by the Town. From the discussion held
during the phone conference it was unclear whether liability could be established against any one
individual that would not be assumed by the Town or for which the Town would also be liable.
All of the defendants are represented by the same counsel.
Based on its limited perspective of the case, the court is left with the view that there is one
plaintiff party, Mr. and Mrs. Cayer, suing one defendant party, the Town of Madawaska and it's five employees or agents, on various theories of liability. Although the plaintiffs may perceive
that individual employees or agents of the Town may have wronged them, as alleged in their
various counts, it remains that it is the Town that is at the heart of the plaintiffs' claims of
wrongdoing. On the present record, the court is not persuaded that the defendants should be
counted as more than one party for the purpose of allocation the Rule 16B mediation fee.
Accordingly, the court orders that the Rule 16B mediation fee be divided equally, with Plaintiffs
Mr. and Mrs. Cayer to pay 50% and the Defendants Town of Madawaska and the five named
individuals to pay 50%, provided however the court reserves the right to reallocate this division
in the event the matter goes to final judgment and the court is required to make an order on a
request for bill of costs.
Pursuant to Rule 79(a) this order shall be incorporated by referenc
~ Dated: May/ , 2019 Harold L. Stewart, II Justice, Superior Court
Related
Cite This Page — Counsel Stack
Cayer v. Town of Madawaska, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cayer-v-town-of-madawaska-mesuperct-2022.