SHAUN GARRY ESQ 12 CITY CENTER PORTLAND ME 04101
RKOF COURTS mberland County :ury Street, Ground Floor rtland, ME 04101
JOSEPH GELBAND 540 CONGRESS ST #1 PORTLAND ME 04101 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION .~~~~~T~~· cv9 },~~6%0 (/ / /
JOSEPH GELBAND, JR., Plaintiff
V. DECISION AND ORDER
MICHAEL CUNNIFF, ESQ. & DANIEL HONDO, ; ~' '';.'::' Defendants r ' , ;c··... ''- ()ffice
INTRODUCTION r· 'i·· r:'"' ~· -~,-. ~. . - •.. . ;t"-t'" h -... /.' 'I~~ • ~ l~ -. ' '·' [!_ ;..,.._. !·""-• .. ·? !~~~ ljh""'\P. '. ... ·,., This case comes before the court on the defendants' motion to dismiss the -ll.,.,P·
plaintiff's complaint and the plaintiff's subsequent motion to amend the complaint. The
defendants have also filed a motion to extend the time for reply to the plaintiff's
opposition to the defendant's motion to dismiss.
1. Allegations of the Complaint
The motions pending before this court arose out of a deposition given in
connection with a federal court action that Joseph Gelband ("Gelband" or "Plaintiff'')
filed in the United States District Court against Police Officer Daniel Hondo and others. 1
1 The court takes judicial notice ofGelbandv. Hondo, 2010 U.S. Dist. LEXIS 136695 (D. Me. April 23, 201 0) (Docket No. 2:09-cv-0128-DBH) (hereinafter "Fed. Case"). The United States District Court entered a final judgment in favor of PO Hondo and all of his codefendants on June I, 2010. Fed. Case Doc. No. 99. Gelband appealed this decision to the United States Court of Appeals for the First Circuit, filed under Docket No. I 0- I 803. Fed. Case Doc. No.I 00. The decision was affirmed on February 23, 20 II. Defs.' Reply to Pl.'s Opp. Ex. B. Mr. Gel band moved for reconsideration of the affirmation but was denied. Previous history includes the following: On July 28, 2009, United States District Court Judge D. Brock Hornby adopted a recommended decision on motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) that had been issued by United States Magistrate Judge Margaret Kravchuk on June 16, 2009, resulting in dismissal of all but Fourth Amendment claims against PO Hondo. Fed. Case Doc. Nos. 24, 28. On September 28, 2009, Judge Hornby denied Gelband's motion for reconsideration of his order The complaint in the pending state court action alleges that Attorney Cunniff ("Cunniff')
and Police Officer Hondo ("PO Hondo") (collectively "Defendants") intentionally,
Compl. ~~ 13-31, and/or negligently, Compl. ~~ 32-37, inflicted severe emotional distress
upon Gel band during a deposition of PO Hondo that was conducted on December 21,
2009 in connection with Gelband's federal court action. Compl. ~~ 6, 7, 38, 39. Cunniff
acted as counsel to PO Hondo in his defense of the federal suit, which alleged that PO
Hondo and another officer arrested Gelband for aggravated assault without probable
cause on November 27, 2007. Compl. ~~ 8, 9. The United States District Court
dismissed Gelband's federal court action, finding that the officers, including PO Hondo,
had probable cause to arrest Gelband. Gelbandv. Hondo, 2010 U.S. Dist. LEXIS 136695
(D. Me. April23, 2010). 2
on dismissal. Fed. Case. Doc. No. 37. On May 27, 2010, Judge Hornby adopted a recommended decision on summary judgment motions rendered by Magistrate Judge Kravchuk on April23, 2010. Fed. Case Doc. Nos. 91-92, 97-98. 2 The Magistrate Judge concluded: "After all the effort by the parties and this court in working up and sifting through this factual record, it is evident to me that the resolution of this Fourth Amendment dispute is straight forward. Tully, Hondo, and Frazier are entitled to judgment as a matter of law on their motions for summary judgment and Gelband's motion for partial summary judgment must be denied. In his memorandum in support of his motion for summary judgment and his surreply to defendants' motions Gelband's most persistent argument is that Tully and Hondo did not sufficiently investigate his injuries when they made the determination that they had probable cause to arrest Gelband for the injuries to Hilton and Bates which Gelband does not dispute he caused. At best this is an argument that the officers might have had grounds to also charge Hilton and/or Bates with an assault on Gelband. This possibility does not defeat the officers' case that they had probable cause to arrest Gelband. Obviously brawl or (to use Gelband's phrasing) 'fracas' situations can potentially result in arrests of more than one ofthe participants in the fray; it is not a question of only being able to choose one person to arrest. Gel band does not dispute that he at no time requested that the officers charge Hilton and/or Bates, whereas both women requested that they charge Gelband. Gelband does not contest that he was responsible, by using a telephone as a weapon, for the injuries sustained by Bates and Hilton, both of whom required treatment, including stitches. Gelband's theory is that he acted in self- defense and that the officers did not sufficiently press him to explain this defense. However, ... Hondo and Tully were not in a position to hold a 'mini-trial' before they made the decision to arrest Gelband, ... and it would have been entirely inappropriate had they done so." Gelband v. Hondo, 2010 U.S. Dist. LEXIS 136695, *40-42 (citations and quotation marks omitted).
2 Gelband alleges in his state court complaint that his emotional distress damages 3
are due to PO Hondo's response to a question asked by Cunniff at the deposition and the
circumstances surrounding that question and response. Cunniff asked whether Gel band
had "confessed" and whether the "confession" had been a factor in determining probable
cause for Gelband's arrest. Compl. ~~ 23, 25, 28-31, 38-44. PO Hondo testified, in
response to this question, that Gel band had confessed. Compl. ~ 23. Gel band alleges that
this testimony was inconsistent with PO Hondo's previous written and oral statements
and inconsistent with Cunniffs previous representations and arguments in the federal
case. Compl. ~~ 10-12, 15-18, 25. Finally, Gelband alleges that PO Hondo's testimony
at the deposition regarding the confession was false and that Cunniff suborned PO
Hondo's perjury in the deposition. Compl. ~~ 15-24, 26-27, 33-37.
In the proposed amended complaint, Gelband adds a federal civil rights claim,
brought under 42 U.S.C. § 1983, to his state law tort claims. Gelband alleges that the
Defendants were acting under the color oflaw. Am. Compl. ~~ 4, 5. He further alleges
that Cunniff admitted suborning perjury, Am. Compl. ~~ 31-34, and that the conduct
alleged violated Gelband's Fourteenth Amendment right to due process of law. Am.
Compl. ~ 34.
Instead of filing an answer, the Defendants filed a motion to dismiss the
complaint on January 26, 2011. On February 26, 2011, instead of filing an opposition to
3 As damages, Gelband alleges, "Plaintiff was shocked and terrified to hear a police officer, under oath, effectively re-write an arrest report written two years previously to include a new and false allegation that plaintiff had made a confession." Compl. ~ 41. He further alleges in the complaint, "Plaintiff was shocked and terrified at the realization that Cunniff was able to, and in fact so easily and transparently suborned Officer Hondo's perjury during a short break at the tail end of a deposition." !d. ~ 42.
3 that motion, the Plaintiff filed a motion for leave to file an amended complaint and for
enlargement of time to respond to the Defendants' motion to dismiss. Defendants
objected to the Plaintiffs motion to amend the complaint. On March 23, 2011, Plaintiff
filed a reply to the Defendants' objection.
On June 9, 2011, this court issued an order indicating that the court would rule on
these two pending motions before any responsive pleadings must be filed. The court also
granted the Plaintiffleave to file an opposition to the motion to dismiss by July 8, 2011
and the Defendants leave to reply to that opposition by July 15, 2011. The Plaintiff filed
his opposition on July 11, 2011. Due to the Plaintiffs tardiness, on July 12, 2011, the
Defendants filed a motion for enlargement of time, until July 22, 2011, to reply to the
Plaintiffs opposition. The Defendants subsequently filed their reply on July 22, 2011.
The court will address below all pending motions.
DISCUSSION
1. Motion to Extend Time for Filing Reply
The court grants the Defendants' July 12, 20 II motion for enlargement of time
for filing their reply to the Plaintiffs opposition to the motion to dismiss. The court
notes that the Defendants have not objected to the Plaintiffs late filing and, by filing a
reply, have apparently acquiesced to the late filing. Also, the Plaintiff has not objected to
the Defendants' motion for enlargement oftime. It is within the court's discretion to
accept both filings.
2. Motion for Leave to File Amended Complaint
The Plaintiff moved for leave to amend the complaint in response to the
Defendants' motion to dismiss. The Defendants oppose this motion on three grounds: that
4 the Plaintiff has waived his right to amend as a matter of course because the Defendants'
motion to dismiss is a responsive pleading and because the Plaintiff filed a motion
seeking leave to amend rather than simply filing the amended complaint; that the
amendment is futile because the Plaintiff continues to fail to state a cause of action on
which relief may be granted; and because the Plaintiffs motion does not comply with
M.R. Civ. P. 7(3).
a. Standard for Granting Leave to Amend
A party may amend its pleading once as a matter of course before a responsive
pleading is filed. 4 Otherwise, a party may only amend its pleading by leave of the court,
which must be freely given when justice so requires. M.R. Civ. P. 15(a). 5
Notwithstanding the fact that pro se litigants are held to the same standards as represented
litigants, Richards v. Bruce, 1997 ME 61, ~ 8, 691 A.2d 1223, the policy of freely
granting leave to amend is applied even more liberally to the pleadings of pro se litigants.
Nowicki v. Loco Inc., 2005 Me. Super. LEXIS 108, *2 (September 22, 2005). Typically
this is done when the pro se litigant has failed to meet the technical requirements of
pleading rather than substantive matters. See id. at * 2-3.
Although a court will typically allow a motion to amend a pleading when there is
no bad faith or delay and when there is no prejudice to the other party, Chrysler Credit
4 The Maine Law Court has not yet ruled whether a motion to dismiss is considered a responsive pleading for the purposes of Rule 15. See Jones v. Suhre, 345 A.2d 515, 517 n.4 (Me. 1975) (The court suggested no opinion on "whether defendant's three-pronged Motion to Dismiss is in any part a responsive pleading" because this issue was not argued). It is unnecessary for the court to reach this argument because the motion is denied on other grounds. 5 Citing Coventry First, LLC v. McCarty, 605 F.Jd 865, 870 (11th Cir. 201 0), the Defendants argue that the Plaintiff, by filing a motion to amend the pleadings, waived the right to amend as a matter of course. This court does not reach whether the Plaintiff has waived his right to amend as a matter of course. However, because the Plaintiff has filed a motion seeking leave to amend, this court will treat this as inviting the court's ruling.
5 Corp. v. Bert Cote 's L/A Auto Sales, I998 ME 53 ~ I5, 707 A.2d I3II, when the
amendment would be futile the court may properly deny it despite lack of bad faith or
delay. Glynn v. City ofS. Portland, 640 A.2d I 065, I 067 (Me. I994). When the
complaint, as amended, would fail to state a claim on which relief can be granted under
the Rule I2(b)(6) standard, amendment is futile. Glassman v. Computervision Corp., 90
F.3d 6I7, 623 (1st Cir. I996).
Under M.R. Civ. P. 7(b)(3), a party must file, along with any motion, a
memorandum of law including citations to supporting authority, a draft order granting the
motion and stating specifically the relief to be granted by the motion, and a notice of
hearing if a hearing date is available. The purpose of filing a draft order is to inform the
court the specific relief being requested. See Thibodeau v. Cole, I999 ME I 50,~ 5, 740
A.2d 40. When the court is presented with no facts indicating what an amendment to a
pleading would entail the court has no choice but to deny the motion to amend. Bahre v.
Liberty Group, Inc., 2000 ME 75, ~ 7, 750 A.2d 558; Thibodeau, I999 ME 150, ~ 5, 740
A.2d 40.
b. Amendment of the Complaint Is Futile
The Plaintiffs proposed amended complaint, submitted to the court along with his
motion to amend, asserts an additional cause of action under 42 U.S.C. § 1983 against the
Defendants. Am. Compl. ~~ 15-34. The section 1983 cause of action and the claims of
intentional and/or negligent infliction of emotional distress are based on the same set of
facts alleged in the original complaint with the additional allegation that Cunniff admitted
that he suborned perjury. Am. Compl. ~~ 31-33. The court finds that the proposed
amended complaint is futile because it fails to state a claim under 42 U.S.C. § 1983 and
6 the additional allegation does not cure the defects of the original complaint. Because the
question of futility uses the same standard of review as a motion to dismiss for failure to
state a claim, the court will discuss both the amended complaint and the original
complaint together below.
Although the Plaintiff did not file a draft order with his motion to amend, as
required by M.R. Civ. P. 7(b)(3), he did file a proposed amended complaint. It cannot be
said that the court was not presented with facts indicating what relief the Plaintiff sought.
Unlike the situations in Thibodeau and Bahre, the Plaintiff has indicated how the
complaint would be amended if relief were granted. Regardless of whether the Plaintiff
sufficiently complied with M.R. Civ. P. 7(b), the motion is denied because it is futile.
3. Motion to Dismiss
The defendants seek a dismissal of the complaint and the proposed amended
complaint on the ground that plaintiff has failed to state a claim upon which relief may be
granted. They contend that they have an absolute privilege for relevant communications
and testimony made preliminary to and in the course of litigation. The Defendants also
argue that, even if they do not have such a privilege, the complaint fails to state a claim
for either intentional or negligent infliction of emotional distress. As to the proposed
amended complaint, the Defendants argue that allowing plaintiff to amend the complaint
would be futile because the amended complaint fails to state a claim under 42 U.S.C. §
1983 and because the litigation privilege also applies. Plaintiff counters that ( 1) this is a
case of first impression that presents unique circumstances, and (2) the policy
consideration underlying case law cited by defendants regarding immunity does not
apply.
7 a. 12(b)(6) Standard
Dismissal is warranted when it appears beyond doubt that the plaintiff is not
entitled to relief under any set of facts that might be proved to support the claim.
Johanson v. Dunnington, 2001 ME 169, ~ 5, 785 A. 2d 1244. The court must take the
well-pleaded material allegations of the complaint as admitted. Halco v. Davey, 2007
ME 48, ~ 6, 919 A.2d 626. However, the court is not bound by the legal conclusions
stated in the complaint. Seacoast Hangar Condo. II Ass 'n v. Martel, 2001 ME 112, ~ 16,
775 A.2d 1166. Immunities and other affirmative defenses may be raised on a motion to
dismiss as long as facts that give rise to the immunity or defense appear on the face of the
complaint. Munjoy Sporting & Athletic Club v. Dow, 2000 ME 141, ~ 17, 755 A.2d 531.
In deciding a motion to dismiss, the court must view the complaint "in the light
most favorable to the plaintiff to determine whether it sets forth elements of a cause of
action or alleges facts that would entitle the plaintiff to relief pursuant to some legal
theory." Napieralski v. United Church ofGreater Portland, 2002 ME 108, ~ 4, 802 A.2d
291. The general rule is that only the facts alleged in the complaint may be considered on
a motion to dismiss. Moody v. State Liquor & Lottery Comm 'n, 2004 ME 20, ~ 8, 843
A.2d 43. However, a narrow exception allows the court to consider "official public
documents, documents that are central to the plaintiff's claim, and documents referred to
in the complaint, without converting a motion to dismiss into a motion for a summary
judgment when the authenticity of such documents is not challenged." !d. at ~~ 9-10.
These documents then merge into the pleadings. !d. The Law Court has stated, "the
purpose for this exception is that if courts could not consider these documents, 'a plaintiff
with a legally deficient claim could survive a motion to dismiss simply by failing to
8 attach a dispositive document on which it relied."' !d. (quoting Pension Benefit Guar.
Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993)). The court
therefore takes judicial notice of public record in the federal action, Gelband v. Hondo,
Docket No. 2:09-cv-00128-DBH, that was the genesis of the state lawsuit and referenced
by Gelband in his complaint.
b. Absolute Privilege
The Maine Law Court has extended to parties, witnesses, and attorneys, an
absolute privilege for relevant communications and testimony made preliminary to and in
the course oflitigation. Dineen v. Daughan, 381 A.2d 663, 664-65 (Me. 1978); see also
Restatement (Second) of Torts §§ 587 (parties) & 588 (witnesses) (1977). The Law
Court reasoned that "public policy requires that witnesses shall not be restrained by the
fear of being vexed by actions at the instance of those who are dissatisfied with their
testimony." !d. (citation and quotation marks omitted). "A witness is absolutely
privileged to publish false and defamatory matter of another in communications
preliminary to a proposed judicial proceeding and as part of a judicial proceeding in
which he is testifying, if it has some relation thereto." Dunbar v. Greenlaw, 128 A.2d
218,223 (1957) (quoting Restatement ofthe Law, Torts,§ 588). The absolute privilege
applies so long as the offensive content of the testimony or pleadings is relevant to the
proceedings. Dineen, 381 A.2d at 665; Dunbar, 128 A.2d at 222-23.
Although this privilege has its origins in the law of libel and slander, it has been
expanded to all causes of action when it applies. Bradbury v. GMAC Mortg., LLC, 20 11
U.S. Dist. LEXIS 49810, * 5 (D. Me. May 9, 2011) (citing Jack H. Simmons et al., Maine
Tort Law§ 17:09 at 17-21 (2004)). See also Heavrin v. Nelson, 384 F.3d 199,202 n.2
9 (6th Cir. 2004) (applying Kentucky law applying privilege to claim of fraud); Hugel v.
Milberg, Weiss, Bershad, Hynes & Lerach, LLP, 175 F.3d 14, 17-18 (1st Cir. 1999)
(discussing New Hampshire and Massachusetts law and dismissing claim of malpractice
in addition to a defamation claim); Begier v. Strom, 54 Cal. Rptr. 2d 158, 161 (Cal. Ct.
App. 1996) ("[I]nsofar as plaintiff alleges defendant made false accusations within the
dissolution action, defendant's statements are privileged and cannot give rise to a cause
of action for intentional infliction of emotional distress."); Kachig v. Boothe, 99 Cal.
Rptr. 393, 403 (Cal. Ct. App. 1971) (applying the privilege to a claim for intentional
infliction of emotional distress); Levin, Middlebrooks, Mabie, Thomas, Mayes &
Mitchell, P.A. v. US. Fire Ins. Co., 639 So.2d 606, 608 (Fla. 1994) (tortious interference
with a business relationship); Hurley v. Towne, 156 A.2d 377, 379 (Me. 1959) (applying
the privilege to a claim of false imprisonment); Panitz v. Behrend, 632 A.2d 562, 564
(Pa. Super. Ct. 1993) ("[the privilege] has now been extended to include all tort actions
based on statements made during judicial proceedings"). Specifically, the doctrine of
absolute litigation privilege has been recognized to bar claims for intentional infliction of
emotional distress, Davis v. Currier, 1997 ME 199, ~ 6, 704 A.2d 1207, and claims under
42 U.S.C. § 1983, Briscoe v. Lahue, 460 U.S. 325, 331-32 (1983). The Supreme Court
has determined that police officers and witnesses are entitled to absolute immunity "even
if the witnesses knew the statements were false and made them with malice." Briscoe,
460 U.S. at 332; see also Young v. Biggers, 938 F.2d 565,569 (5th Cir. 1991) (holding
that prosecution witnesses are entitled to immunity under Briscoe). This immunity
extends to all persons, whether governmental, expert, or lay witnesses, who are "integral
parts ofthejudicial process." Briscoe, 460 U.S. at 335.
10 The Plaintiff argues that there is "ample precedent" for making exceptions to the
doctrine of absolute immunity in litigation. Pl.'s Reply Mot. to File Am. Compl. 2.
However, the only case cited by the Plaintiff does not actually create an exception.
Rather, it establishes that the party, a prosecutor, was not acting in the course of litigation
and, therefore, had not met the prerequisites for the privilege to apply. Van de Kamp v.
Goldstein, 129 S.Ct. 855, 861 (2009). The Supreme Court has specifically stated that the
policy reasons supporting the litigation privilege apply equally to police officers
testifying as witnesses and that there should be no exception for police officers even in
cases of alleged perjury. Briscoe, 460 U.S at 341-43. Allowing police officers immunity
in connection with acting as a witness prevents undermining their contribution to the
judicial process and prevents undermining the effective performance of their other public
duties. !d. at 343.
The complaint claims that PO Hondo's testimony that Gelband had "confessed"
and that the "confession" was "a factor in determining probable cause" for his arrest in
response to questions by Attorney Cunniffwas both false and the source ofthe emotional
distress damages that he allegedly suffered. Compl. ~~ 23, 25, 28-31 38-44. The
deposition of PO Hondo in the federal court action discloses the actual deposition
testimony:
Q. Now, back in the context of this case you asked, according to your testimony earlier, Mr. Gelband what happened; isn't that right?
A. Correct.
Q. And how did he respond to that question?
A. He said I am not sure, I may have hurt the girls.
Q. Now, is it fair to say that that was a confession?
11 A. Yes.
Q. And at the time that you were making a decision about whether to arrest Mr. Gelband how did that fit into other fact and circumstances that you considered before placing him under arrest?
A. It coincided with what the two females were telling us had occurred, Mr. Gelband had hurt them.
Q. And what about their physical appearances before you made the arrest of Mr. Gelband, how did that factor in?
A. Their injuries were significant, they were severe. Lacerations that required stitches- that we were informed required stitches. There was blood, bruising.
Q. And in terms of establishing probable cause, how did that condition of each of those two victims play in your decision making?
A. It helped us determine there was probable cause to arrest Mr. Gelband.
Fed. Case Doc. No. 65 at 69:5-70:3 (attached to Defs.' Mot. to Dismiss Ex. B).
The absolute privilege analysis requires the court first ascertain whether the
statement under scrutiny was made "preliminary to and in the course oflitigation." The
deposition took place during the discovery phase of the federal lawsuit, Gelband v.
Hondo. Compl. ,-r,-r 6-7, 14, 23, 25. This court concludes that the statements in question
took place preliminary to and in the course of litigation.
The absolute privilege analysis requires the court determine next whether the
statement at issue was "relevant to the proceedings." The central fact in the federal
lawsuit, Gelband v. Hondo, was PO Hondo's assessment of probable cause, which
included the facts and circumstances, as PO Hondo understood them, at the time of
Gelband's arrest for aggravated assault. 6 Compl. ,-r,-r 6-9. Statements made by PO Hondo
6 The Magistrate Judge Kravchuk characterized the issue in the federal action as follows: " ... Gelband focused on his contention that the arresting officers lacked probable cause for his
12 during a deposition regarding the facts and circumstances that he understood at the time
of Gelband's arrest were relevant to the judicial proceedings in Gelband v. Hondo.
Therefore, the complaint on its face has alleged facts that give rise to the applicability of
the litigation privilege and the court may consider that defense on the motion to dismiss.
The Plaintiff argues that he has presented a case of first impression because the
conduct and statements that are at the basis of Gelband's emotional distress and section
1983 claims were admittedly perjured. Pl.'s Opp. Defs.' Mot. Dismiss 1. However, the
public records in the federal action, to which the Plaintiff cites and attaches to his
memorandum opposing the motion to dismiss, do not support the Plaintiffs allegation
that Cunniff admitted to suborning perjury. Gelband points to a document written by
Cunniff, on behalf of PO Hondo, filed in the federal action and quotes the words "that he
improperly posed a deposition question to Officer Hondo" and "counsel for an opposing
party has an ethical duty to zealously defend his clientele .... " Pl.'s Opp. Defs.' Mot.
Dismiss Ex. A. Gelband fails to include in his exhibit the prior page (attached to the
Defendants' Reply to Plaintiffs Opposition to Defendants' Motion to Dismiss at Ex. A),
which makes clear that Cunniff was summarizing Gelband's argument, not making
admissions. The Plaintiff cannot survive a motion to dismiss by asserting a bald
accusation in the complaint when the provided support clearly belies the assertion.
The Plaintiff also argues that the policy interests supporting the privilege do not
apply to this case because the litigation he brings is not "vexatious" or "bothersome." As
the case law makes clear, the litigation privilege is designed to prevent exactly this type
arrest, honing in on his assertion that the police disregarded evidence, including his bleeding head wound, and 'all sorts of exculpatory evidence."' 2010 U.S. Dist. LEXIS 136695 *3 (D. Me. April23, 2010).
13 of case and is especially important when police officers are acting as witnesses. The fact
that the Plaintiff does not plan to undertake further discovery does not mean that the
lawsuit is not bothersome to the Defendants nor that it is not distracting from PO
Hondo's public duties.
The statements made by PO Hondo during the deposition in the federal action are
absolutely privileged under Maine law. Even, assuming the facts of the complaint are
true, as the court must on a motion to dismiss pursuant to Rule 12(b)(6), the complaint
must be dismissed with prejudice because the alleged perjurious statements are absolutely
privileged under Maine law.
Notwithstanding this absolute defense applicable to the two claims asserted in the
complaint and the additional claim asserted in the amended complaint, the court further
discusses whether the Plaintiffs complaint or amended complaint sufficiently pleads
each cause of action.
c. Intentional Infliction of Emotional Distress
In order to recover for intentional infliction of emotional distress, a plaintiff must
establish the following elements:
( 1) the defendant intentionally or recklessly inflicted severe emotional distress or was certain or substantially certain that such distress would result from [the defendant's] conduct; (2) the conduct was so extreme and outrageous as to exceed all possible bounds of decency and must be regarded as atrocious, utterly intolerable in a civilized community; (3) the actions of the defendant caused the plaintiffs emotional distress; and (4) the emotional distress suffered by the plaintiff was so severe that no reasonable person could be expected to endure it.
Lyman v. Huber, 2010 ME 139, ,-r 15, 10 A.3d 707 (quoting Curtis v. Porter, 2001 ME
158, ,-rio, 784 A.2d 18.).
14 The court, in performing its gatekeeper function, must determine whether the
alleged conduct may be "reasonably regarded as so extreme and outrageous to permit
recovery." Walton v. Nalco Chern. Co., 272 F.3d 13, 19 (1st Cir. 2001) (quoting
Champagne v. Mid-Maine Medical Ctr., 1998 ME 87, ~ 16, 711 A.2d 842 (1998)). This
is an extremely high standard and, in many cases, very bad conduct has been held to not
meet the standard. See, e.g., Champagne v. Mid-Maine Medical Ctr., 1998 ME 87, ~ 16,
711 A.2d 842 (1998) (nursing student bringing newborn to wrong mother to feed for
three to five minutes was unfortunate but was not extreme and outrageous); Batson v.
Shiflett, 602 A.2d 1191 (Md. 1992) (even though accusations of conspiracy, perjury and
falsification of records in labor dispute were defamatory, they did not satisfy the exacting
standard for extreme and outrageous conduct); see also Carraway v. Cracker Barrel Old
Country Store, Inc., 2003 U.S. Dist. LEXIS 12326, at* 42-43 (D. Kan. July 16, 2003)
(deciding that spreading false rumors to former coworkers and customers that "plaintiff
stole money, used drugs, had a drinking and/or gambling problem and was [a] lesbian"
was not extreme and outrageous conduct establishing intentional infliction of emotional
distress); Hanssen v. Our Redeemer Lutheran Church, 938 S.W.2d 85 (Tex. App. 1996)
(accusing employee of misappropriating church funds was not deemed extreme and
outrageous conduct). In Maine, conduct that alone is not extreme and outrageous may
become so when there exists a pattern of such conduct over a prolonged period of time.
Lyman v. Huber, 2010 ME 139, 10 A.3d 707.
The complaint alleges that the extreme and outrageous conduct here was that PO
Hondo, under questioning from Cunniff, improperly characterized Gelband's prearrest
15 statements as a confession. 7 Viewing all the facts and circumstances in a light most
favorable to Gelband, the conduct alleged in the complaint is not so extreme and
outrageous as to exceed all bounds of decency. There was no pattern of conduct alleged
and the conduct in question falls within the types of behavior regularly found to not
constitute extreme and outrageous conduct. Because Gelband has failed to assert a set of
facts showing that the Defendants' conduct was "extreme and outrageous," he cannot
state a claim for intentional infliction of emotional distress and the court does not address
whether he has met the other elements of the claim.
d. Negligent Infliction of Emotional Distress
To prevail on a claim of negligent infliction of emotional distress, a plaintiff must
establish that:
one, that the defendant was negligent, that is that the defendant acted or failed to act in a manner which a reasonably prudent person or corporation would act in the management of their affairs taking into account all of the circumstances of this case; two, that emotional distress to the plaintiff was a reasonably foreseeable result of the defendant's negligent act; and, three, that the plaintiff suffered serious emotional distress as a result of the defendant's negligence. Gayer v. Bath Iron Works Corp., 687 A.2d 617, 621-22 (Me. 1996). In order to prove the
first element the plaintiffs must demonstrate 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. Devine v. Roche Biomed. Labs., Inc., 637 A.2d 441,
447 (Me. 1994).
7 The amended complaint also asserts that the Defendants admit that this question and answer were perjurious. As noted in section 3(b) above, the Plaintiff has failed to sufficiently allege this admission because the documents attached as support are contrary to the allegation. Therefore, the court does not consider this allegation.
16 The establishment of a duty is a matter of law to be decided by the court. Bryan
R. v. Watchtower Bible & Tract Soc'y ofNY, Inc., 1999 ME 144, ~~ 12, 14,738 A.2d
839. There is no general duty to avoid negligently causing emotional harm to others.
Cole v. Porter, 2001 ME 158, ~ 18,784 A.2d 18. The Law Court has recognized that a
duty exists in two limited circumstances. The first is when there is a special relationship
between the parties. !d. at~ 19; see, e.g., Rowe v. Bennett, 514 A.2d 802, 807 (Me. 1986)
(allowing patient to proceed against her therapist for sexual involvement with the
patient's companion); cf Bryan R., 1999 ME 144, ~ 17, 738 A.2d 839 (concluding no
special relationship existed between minister and child of church members). And the
second is when "bystander liability" exists. Cole, 2001 ME 158, ~ 19. Also, negligent
infliction of emotional distress may lie when the emotional distress claimed is based on
an independent tort. !d.
Gelband has failed to state a claim for negligent infliction of emotional distress
because he fails to allege a duty of care. No special relationship has been alleged, nor
exists, sufficient to create a recognized duty under Maine law. The parties are related as
plaintiff/defendant and as police officer/arrestee. Neither of these relationships rises to
the level of creating a duty not to cause emotional harm like the therapist/patient
relationship recognized in Rowe. Bystander liability does not exist here because the
Plaintiff did not witness physical harm to another caused by the negligence of the
Defendants. Additionally, there is no independent tort supporting the claim for emotional
distress. The Plaintiffs claim for intentional infliction of emotional distress cannot
provide this support. Plaintiff has failed to state a cause of action under that claim
because the Defendants statements are absolutely privileged and not "extreme and
17 outrageous." Furthermore, there is no tort ofperjury. 8 Cole v. Chellis, 119 A. 623,623
(Me. 1923). The facts underlying the complaint do not establish an independent tort on
which the Plaintiff may recover any emotional distress damages. Accordingly, Gelband
has failed to state a claim for negligent infliction of emotional distress.
e. 42 USC§ 1983
The Plaintiff pleads that he was deprived of his Fourteenth Amendment right to
due process of law. Am. Compl. ~ 34. He also alleges that PO Hondo and Cunniff were
acting under color of state law. Am. Campi.~~ 4,5. Section 1983 of 42 U.S.C. creates a
private right of action for an individual who has been deprived of the rights guaranteed
under the United States Constitution or other laws, by a person acting under the color of
state law. To state a claim under 42 U.S.C. § 1983 a plaintiff must allege two essential
elements: (1) that a right secured by the Constitution or laws of the United States was
violated, and (2) that the alleged violation was committed by a person acting under the
color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
To classify conduct as occurring "under the color of state law" there must be a
misuse of power, possessed by the defendant by virtue of state law, and made possible
only because the wrongdoer was clothed with the authority of state law. Monroe v. Pape,
365 U.S. 167, 184 (1961 ), overruled on other grounds by Monell v. Dep 't Soc. Servs.,
436 U.S. 658 (1978). One's status as a state official does not mean that all actions are
done under color of state law. Bates v. New York City Transit Auth., 721 F. Supp. 1577,
8 Although there is a statutory cause of action for civil perjury, 14 M.R.S. § 870 (2011), the Plaintiff not only does not allege such a cause of action but would also fail to state a cause of action under this statute because no judgment was entered against him as a result of any perjury. Bean v. Cummings, 2008 ME 18, 939 A.2d 676 (stating the elements of civil perjury).
18 1580 (E.D.N.Y. 1989). It is the actions that the person undertakes, rather than their
status, which is determinative of whether he or she is acting under color of state law. !d.
A person does not "act under color of law" merely by testifying at trial. Brisco v.
LaHue, 460 U.S. 325, 329-30 (1983) ("It is beyond question that, when a private party
gives testimony in open court in a criminal trial, that act is not performed 'under color of
law.'"). The case law interpreting section 1983 makes clear that when a police officer
testifies about what he has done in the past using his state-granted powers, he is not also
acting pursuant to state power: that is, when testifying an officer is not acting under the
color of state law. See Bennett v. Passic, 545 F.2d 1260, 1263-64 (1Oth Cir. 1976)
(sheriff and other defendants who testified at criminal trial were not acting under color of
state law); Myers v. Bull, 462 F. Supp. 107, 108 (E. D. Mo. 1978), aff'd, 599 F.2d 863
(8th Cir. 1979) (police officer who knowingly and willfully gave perjured testimony in a
deposition under oath was not acting under color of state law); Edwards v. Vase!, 349 F.
Supp. 164, 166 (E.D. Mo. 1972), aff'd, 469 F.2d 338 (8th Cir. 1972) (police officer who
offered perjured testimony at a habeas corpus hearing was not acting under color of state
law).
Lawyers who participate in the trial of private state litigation are not considered to
be acting under color of state law for purposes of section 1983. Meier v. State Farm
Mutual Auto. Ins. Co., 356 F.2d 504,505 (7th Cir. 1966); Bates, 721 F. Supp. at 1581;
Stabler v. Dillon, 302 F. Supp. 1250, 1255 (S.D.N.Y. 1969). However, a private party
who is a willful participant in illegal joint action with a state or its agents is acting under
the color of state law. Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) (private parties bribed
19 judge and were held not only to be acting under color of state law but outside of the scope
of immunity for judicial acts, which the judge retained).
Accepting all of the Plaintiffs allegations as true, neither PO Hondo nor Cunniff
were acting under "color of state law" for the purposes of 42 U.S.C. § 1983. When PO
Hondo and Cunniff made the allegedly deprivatory statements, they were not cloaked in
the authority ofthe state. PO Hondo was testifying in a civil matter and Cunniff was a
private attorney assisting in that testimony. Even assuming that Cunniff and PO Hondo
conspired to commit perjury, neither was acting as the State or one of its agents, such that
their actions could be termed "under the color of state law" under Dennis. There is no
relief for Gel band under § 1983. Therefore, because this is the only addition sought in
the amended complaint, amendment would be futile.
The court concludes that all three claims asserted are barred by the absolute
litigation privilege. Furthermore, the Plaintiff has failed to state a claim on which relief
can be granted because he fails to allege facts supporting at least one element or each
cause of action.
The entry is
1) The Defendants' "Motion for Enlargement of Time to Reply to Plaintiff's
Opposition to Defendant's Motion to Dismiss" is GRANTED.
2) The Plaintiff's "Motion for Leave to File Amended Complaint" is
DENIED on the grounds of futility.
3) The Defendants' "Motion to Dismiss", with prejudice, is GRANTED
September 30, 2011
20 Plaintiff-Pro Se
Defendant-Shaun M Garry Esq.