Shulenburg v. Jamieson

• Court: Superior Court of Maine
• Decided: June 13, 2018
• Docket: YORcv-16-0174
• Status: Unpublished

Opinion

STATE OF MAINE SUPERIOR COURT YORK, ss. Civil Action Docket No. CV-16-0 l 7 4

DAVID A. SHULENBURG

Plaintiff, MEMORANDUM OF DECISION V. AND ORDER ON MOTION FOR SUMMARY JUDGMENT DAVID W. JAMrESON and DARRELL P. !<:ATON,

Defendants.

David A. Shulenburg filed a two-count complaint seeking compensatory and

punitive damages from David W. Jamieson a.nu Darrell P. Eaton, officers of the

Kennebunk Police Department., based on an incident that occurred on September 29,

2014. The complaint alleges that the officers used excessive force in restraining him for

transport to the hospital (count 1) and that their Actions constituted a violation of the

Maine Civil Rights Act, 5 M.R.S. § 4682( I -A), because they lacked authority to take him

into protective custody under 34-B M.R.S. §§ :3801 et seq. and acted maliciously in so

doing (count 2).

Defendants have moved for summary judgment on both counts. For the reasons

set out below, the motion is granted with respect to count '.2 and denied with respect to

count 1.

I. Summary Judgment Factual Record

On Sept.ember 29, 2014, Officer Jamieson and Sergeant Eaton arrived at

Shulcnburg's residence in response to a phone call from his estranged wife, Jean Gabriel

(formerly Shulenburg). (D.S.M.F. 1i 1, 6, 9.) Although Gabriel had already filed for divorce from Shulcnburg and was living in a different residence, she continued to work

in Shulenburg's business. (D.S . M.F. 1 4.)

On the morning of the day in question, Gabriel received a call from Shulenburg

explaining that he would be delayed coming to the office because he was going to be at

home ucornposing a letter tu her attorney regarding their divorce proceeding." (D.S.M.F.

1 6.) Sometime around 4 pm, Shulenburg called again to inform Gabriel that he had been knocked out after having tripped over something in his basement, hitting his head

on the floor. (D.S.M.F. 1 9.) Gabriel called Sanford Regional Dispatch for medical

assistance at approximately 4 :30 pm, explaining what had happened and expressing

concern for Shulenburg's health. (D.S.M.F. ,, 10-13.) She also noted in the call that

"(h)e didn't sound right to me. There was something -· it just didn't sound right . . .. He

didn't sound like himself." (D.S.M.F. 'I[ 14.) Noting that Shulenburg sounded "somewhat

combative, not combative but very angry," Gabriel requested to have police respond to

the scene as well. (D.S.M .F. 1 16.) Gabriel then locked up the office and drove to the

house to see if Shulenburg was alright. (D.S.M.F. t 18.) She arrived at the residence at

approximately 4 :45 pm. (D.S.M.F. 1 19.)

Officer Jamieson was the first to respond at Shulenhurg's residence. (D .S. M . F. ,i

20.) Jamieson rang the doorbell and knocked on the door, but no one answered .

(D.S.M.F. 1 20.) Jamieson then walked toward the back of the house, where he heard

a male voice coming through the open garage door. (D.S.M.l?. ,i 20.) ,Jamieson

recognized Shulenburg and asked if he could help. (D .S .M.F. ,i 20.) .Jamieson observed

a cut on Shulenburg's nose and swelling on his forehead above his right eye. (D.8.M.F.

t 21.) Additionally, Shulenburg's pants and shirt we re stained and he appeared

unsteady on his feet. (D .S.M . fi'. 1 21.)

2 Shulcnburg told Jamieson that he had fallen earlier in the day and struck his

head on the concrete floor of his basement. (D.S.M.F. ~ 23 .) He also stated that he was

unconsciOLts for approximately three hours. (D.S.M.F. , 23 .) During this conversation,

Jamieson noticed the smell of alcohol on Shulenburg's breath. (D.S.M.F. ,i 24.)

Jamieson told Shulenburg that a rescue unit was on the way to evaluate him for possible

serious injuries. (D.S.M.F. t 26.) Shu1enburg responded that he was fine and didn't

need any medical attention. (D.S. M.F. ,i 26 .)

When Gabriel arrived, she found Shulenburg sitting in a lawn chair and told him

that she was the one who had contacted the police because she was worried about the

fall . (D .S.M.F. 1 27.) Gabriel also saw dried blood on Shulenburg's face from his right

temple down to the right jaw line. (D.S.M.F. 1 27.) Gabriel noticed that Shulenburg's

speech pattern indicated that he was likely intoxicated, and that may have been the

reason for his fall. (D.S.M.F. 1, 31 -32 .) Shu1enburg denied drinking, but Gabriel

responded, "That doesn't mean a thing to me .. . . If you live with an alcoholic that's

what you expect to hear." (D .S.M.F. 1 33.) After observing Shulcnburg's condition,

Gabriel encouraged him to go to the hospital. (D .S.M.F'. 1 30.)

Because Kennebunk Rescue was busy with other calls, Arundel Rescue

responded to the scene at. 4:50 pm. (D .S. M.F. 1 37.j Paramedic Nicholas Pelletier began

asking Shulenburg questions about his medical condition. (D.S .M.F. ~ 39.) Shulenburg

told Pelletier that he had tripped on a carpet in the basement and hit his head on the

concrete. (D.S.M.F. 1 40.) Shulenburg also told Pelletier that he had taken some

prescribed medication, including an "unknown amount" of Tramadol and Valium at

some point during the rlay. (D .S.M.F. 1 41.) Shulenburg had also taken prescribed

Xanax before the fall but failed to disclose this. (D.S.M.F. 1 46 .) Shulenburg told rescue

personnel that he was unsure how long he had been unconscious and that he had not

3 slept in approximately three days. (D.S. M. F. 'i 49 .} Pelletier observed an odor of alcohol

on Shulenburg's breath and Shulenhurg admitted to drinking the night before.

(D.S.M.F. ,i 50.) Pelletier thought that Shulenburg was still intoxicated at the time of

evaluation. (D.S.M.F. ,i 52.l

Pelletier described Shulenburg as "uncooperative, refusing treatment and not

answering questions appropriately [by] continuously digressing from questioning about

his medical condition to talk about his divorce and lawyers." (D.S.M.F. 'V 53.) Pelletier

noted that Shulenburg was, "alert, refusing to answer orienting questions, ... speech

is slurred, sensory motor delayed, does not obey commands, gait is unsteady ... minor

abrasion on nose .... The rest of physical exam was not completed due to patient un­

cooperation and refusing treatment.» (D.S .M.F. 1 54.) As a result, Pelletier was unable

to complete routine assessments that he would typically perform. (D.S.M.F. 1 56.)

Nonetheless, Pelletier believed that Shulenburg may have suffered a dosed head injury,

which could have caused an altered mental state. (D.S.M.F. 1 71.)

Based on his evaluation, Pelletier advised Shulenburg to go to the emergency

room to be evaluated by a physician for a potential head injury. (D.S.M. F., 68.) Pelletier

told Shulenburg that he was risking potential death if he did not go to the emergency

room. (D.S. M.F. ,r 72.) Shulenburg again would not agree to go to the hospit.al. (D.S.M.fi'.

1 73 .) Pursuant to the Medical Direction and Practice Board protocol ("MDBP protocol"),

Pelletier called Medical Control at Southern Maine Health Center ("SMHC") because he

believed that Shulenburg may have a serious head injury. (D.S.M .F. ~ 74.) Pelletier

explained Shulenburg's condition to emergency room physician IJr. Douglas Nilson.

(D.S.M.fi'. 41 75 .) Upon lea rning of plaintiff's condition, Dr. Nilson ordcrcd Pelletier to transport him to the hospital, either voluntarily or in protective custody. (D.S.M.F. 'U

76-77.)

Pelletier informed Shulenburg that a doctor had ordered that he be transported

to the emergency room, but Shulenburg again refused to go to the hospital willingly.

(D.S.M.F. 1 78.) Under Emergency Medical Services protocol ("EMS protocol"),

paramedics are encouraged to ask for law enforcement aid lo carry out the order from

Medical Control. (D.S.M.F. 'j 79.) Pelletier informed Jamieson and Sergeant Eaton of

Dr. Nilson's directive, at which point they also began trying to convince Shulenburg to

go to the hospital willingly. (D.S.M.F. il'i 80 --96.)

During this process, Eaton called Shulenburg's primary physician, Dr. Michael

Major. (D.S.M.F. 1 83.) Although Dr. Major apparently was aware of Shulenburg's fall

from an earlier conversation with him that day, Shulenburg told him that he was taking

a nap on his floor and had not told him of medication or alcohol use. (D.S.M.F. 11 84­

85.J Dr. Major assumed that Shulenburg had been drinking that day. (D.S.M.F'. ,r 87.)

During their earlier conversation, Dr. Major had recommended thal Shulenburg go to

the emergency room bul told him that he (Dr. Major) thought he was still able to make

his own transport decisions. (D.S.M.F. n 88, 91-92.) Eaton told Dr. Major that SMHC Medical Control advised that Shulcnburg needed

to be seen at the hospital. (D.S.M.F. 1 94.) Dr. Major agreed that Shulenburg needed to

be transported (D.S.M.F. 1 95.), but also continued to maintain thal Shulenburg was

"competent to make his own decisions." (P.S.M.F ,i L) Officer Jamieson tried again to

convince Shulcnburg to go to the hospital voluntarily; Shulenburg refused, stating that

they were "going to fight." (D.S.M.F. 1 106.J Jamieson responded that he did not want

to fight, let alone force Shulenburg to go against his will. (D.S.M.F. "i 107.)

5 After multiple requests and explanations, Shulenburg appeared Lo agree to go to

the hospital voluntarily. (D.S.M.F. ,r 108.) Shulenburg asked to gu inside his house to

put on his shoes; Officer ,Jamieson accompanied him, fearing that he may fall again.

(D.S.M.F. 1 l09.) Shulenburg put on his shoes and began to walk out of the basement.

(D.S. M.F. n 110-111.) Jamieson walked out of the basement into the connected garage first. (D.S.M.F. 1 112.) When Jamieson exited the door to the garage, Shulenburg closed

the door and locked it behind him. (D.S.M.F. n 112-113.) Jamieson knocked and requested that Shulenburg open the door. (D.S.M.F. 1 114.) Shulenburg did not

respond. (D .S.M.F. t 115.) Jamieson kicked the door open, claiming that he feared for

Shulenburg's safety. (D.S.M.F. 1~ 116.) Upon re-entering the basement, Jamieson

noticed that the lights were off and Shulenburg was hiding behind the door. (D.S.M.F.

i! 119.) A physical confrontation ensued, the nature and extend of which is disputed.

Defendants claim that Shulenburg began flailing and pushing Jamieson away,

but that Jamieson was able to grab hold of Shu lcnburg's right arm and pull him through

the door into the garage. (D.S.M.F. 1,1 120-121.) Jamieson subdued Shulenburg by

holding his right arm behind his back while using his other arm to reach across

Shulenburg's body so that he would nol fall or go to the ground. (D.S.M.F. 1~ 122.)

Eaton grabbed Shulenburg's left arm. (U.S.M.F. 1 123.) Shulenburg continued to resist

throughout this entire confrontation, saying that he "wasn't going anywhere." (D.S.M.F.

i 124.) The officers placed Shulenburg in handcuffs behind his back. (D.S.M.F. ~,~ 125­ l26.) According to defendants, this whole process took approximately ten seconds.

(O.S.M.F. ~ 127.)

Shulcnburg disputes this version of events. Ile maintains that he did not flail or

push the officers but that they attacked him, causing injuries . (P.S.M.F. 11 3-4.) He

alleges that the officers broke his finger, hurt his wrists, and punched him in the kidney

6 four times. (P.S.M.F. ,r 2.) Shulenburg asserts that Jamieson exclaimed that he was

"really starting to piss me off' and "I am sick of this fucking shit." (P.S.M.F. 1 4;

Shulenburg Aff. ,r 9.) This is corroborated by Attorney Guillory, who was on the phone

with Shulenburg at the time. (Guillory Aff. 1 4.)

Once restrained, Shulenburg was walked to a stretcher and then to Arundel

Rescue to be transported to the hospital in protective custody. Shulenburg was placed

on the stretcher at a 45-degree angle with his hands cuffed behind him. (D.S.M.F. 1

130.) Shulenburg complained the handcuffs were too tight, "practically cutting off his

circulation." (D.S.M.F. 1 131.) Jamieson removed Shulenburg's handcuffs from behind

his back and replaced them on Shulenburg's wrists in the front. (D.S.M.F. 1132.) While

changing the handcuffs, Jamieson noticed that Shulenburg had several cuts on his

hands that were bleeding. (D.S.M.F. ,i 133.) At the hospital, Shulenburg also

complained of wrist abrasions and a sprained finger, for which he was given a splint to

wear. (D.S.M.F. 1,r 134.)

When he arrived at the hospital, Shulenburg was evaluated by Dr. Nilson.

(D.S.M.F. ,r,i 101-105.) Shulenburg remained largely uncooperative. (D.S.M.F. ,r 101.)

Shulenburg was released from the hospital after approximately two hours and after Dr.

Nilson believed he had gained the capacity to refuse treatment. (D.S.M.F. n 102-105.) II. Standard of Review

Summary judgment is appropriate if there is no genuine issue of material fact

and the moving party is entitled to judgment as a matter of law. M. R. Civ. P. 56(c); Dyer

v. Dep't of Transp., 2008 ME 106, ~ 14, 951 A.2d 821. "A material fact. is one that can

affect the outcome of the case. A genuine issue of material fact exists when the fact

finder must choose between competing versions of the truth." Dyer, 2008 ME 106, ,r 14,

951 A.2d 821. When deciding a motion for summary judgment, the court reviews the

7 evidence in the light most favorable to the non-moving party. id. In order to survive

defendants' motion for summary judgment, plaintiff must set forth a prima facie case of

each element of his cause of action. Bonin v. Crepeau, 2005 ME 59, ~ 8, 873 A.2d 346.

III. Discussion

A. Excessive Force

The reasonableness of force employed by a police officer is analyzed under the

Fourth Amendment standard of"objcctive reasonableness." Graham v. Connor, 490 U.S.

386, 397 (1989). The central question is "whether the officers' actions are 'objectively

reasonable' in light of the facts and circumstances confronting them, without regard to

their underlying intent or motivation." Id. This test requires "careful attention to the

facts and circumstances of each particular case, including the severity of the crime at

issue, whether the suspect poses an immediate threat to the safety of the officers or

others, and whether he is actively resisting arrest or attempting to evade arrest by

night." Id. at 396. L The issue before the court on summary judgment is whether the

record, viewed in the light most favorable to Shulcnburg, raises a "genuine dispute as

1 8 ome courts have de e rmined that res lra in l of a p~ rson's liberty for purposes of rendering m edical assistan e dues not c onstitute a ' seizure" within the mean ing of the Fourth Amt:n

8 to the reasonableness of the force used by the officers ." Richards v. Town of Eliot, 2001

ME 132, ,i 17,780 A.2d 281.

Plaintiff claims defendants broke down his door; that he did not resist arrest; and

that the officers nonetheless attacked him, breaking his finger, hurting his wrist, and

punching him four times in the kidney. (Pl.'s Opp'g S.M .F. i 2.) Defendants on the other

hand claim that Shulenburg physically resisted transport and thus necessitated the use

of force. The nature and extent of Shulenburg's injuries are also disputed. While the

extent of injuries may be considered in determining whether the force used was

reasonable under the facts and circumstances of a particular case, even minor injuries

may support a claim of excessive force. See Richards, 2001 ME 132, ,i 20, 780 A.2d

281.

Given the conflicting versions of what transpired surrounding the confrontation

with and eventual restraint of plaintiff, there clearly are genuine issues of material facts

in dispute as to whether the officers used an appropriate level of force. Because the

record must be viewed in the light most favorable to the plaintiff as the non-moving

party in the context of a summary judgment motion, the court cannot conclude as a

matter of law that he does not state a claim or that defendants are entitled to summary

judgment on that clairn.2

•1 D oft:ndants ar gi.1<.: lh ·il lh · y ar • ntit lcrl to dis Tetionary immunity under the Maine Tort Claims /\ct ("MTCA") from th state law excessive for e claim . (Def:s Mot. Su mm. ,J. 14 - 16.) Rc:cau c th ere w· questions of materi al fact relating t:n plaintifl's ~xccss ivc: force claim. (anct th e: dd nse of qu al ified immunity, see infra) summary judgmen t in defenda nts' t::i.vor in rela tion to the s lale law cxce siv · force dairn is d nied as wc:1 1. See ill. ; see als o McCue u. City of Hu11gor, 838 F.3d 55, 65 (1st Cir. 2016) ("F'or the sa me: r easons [given in rclallon to pl::iin tifrs Consti tu tion al excessive force claim!, granting immunity u n

9 B. Qualified Immunity

Defendants contend that even if there is a valid excessive force claim, they are

entitled to qualified immunity. Government officials may be shielded from liability for

civil damages arising out of the performance of discretionary duties as long as their

conduct "does not violate clearly established statutory or constitutional rights or which

a reasonable person would have known." Richards, 2001 ME 132, 123,780 A.2d 281,

quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Thus, a two--prong analysis is

involved in determining whether qualified immunity applies: "(l) whether the facts

alleged or shown by the plaintiff make out a violation of a constitutional right; and (2) if

so, whether the right was 'clearly established' at the time of the defendant's alleged

violation." Ciolino v. Gikas, 86 l F.3d 296, 303 (1st Cir. 2017). The "clearly established"

prong has two parts.

First, there must be "controlling authority or a consensus of cases of persuasive

authority that broadcasts a clear signal to a reasonable official that certain conduct falls

short of the constitutional norm." McKenney v. Mangino, 873 F.3d 75, 81 (1st Cir. 2017).

This does not require a "case directly on point"; but "existing precedent must have

placed the statutory or constitutional question beyond debate." White 11. Pauly,_ U.S.

_ , 137 S. Ct. 548 (2017) quoting Mullenix v. Luna, 577 U.S. · - ' 136 S. Ct. 305, 308

(2015) (per curiam).

Next, the court must "evaluate whether an objectively reasonable official in the

defendant's position would have known that his conduct violated that rule of law." Td.

The "ultimate inquiry [is] whether a reasonable factfinder could conclude that the

defondant['s] conduct was so deficient that no reasonable officer could have made the

same choices under the circumstances." Conlogue v. Hamilton, No. 1: 16-CV-296-GZS,

10 2017 U.S. Dist. LEXIS 187170, al *26-27 (U. Me. Nov. 13, 2017), quoting Estate of

Rennett v. Wainwright, 548 F.3d 1!15, 168 ( lst Cir. 2008) .

In Richards v. Town ofEliot, the Law Court vacated a grant of summary judgment

in favor of police officers on a claim of excessive force involved in arresting Ms. Richards

for a nonviolent. offense. The Court cited numerous cases3 to support its conclusion

that the "clearly established" prong of the qualified immunity test had been met in the

circumstances presented that case, namely the arrest of a woman for a nonviolent

offense who was not a threat to the officers' safety with the use of force sufficient to

knock her down and then handcuff and handle her so as to cause "severe pain;" and

that this constituted conduct that was "excessive and unreasonable." Richards, 2001

ME 132, 127,780 A.2d 281. Though none of the cases cited by the Court were identical

to the circumstances in Richards, "the number of cases with similar factLial scenarios"

J The Court noted:

"The federal court for the District of Maine has held that police officers in similar situations using similar degrees of force had violated plaintiffs' constitutional l"lghts. In c~ich of he followi ng cases the cou n denied s u mmary judgmen to the pnlicc oflicers on th e excessive fo re· dairn a nd th qua lified immuni ty d e fense , there by determining tha t th . plain tiffs version of the fac ts wa · ::tufficient, if believed by the fact!inder, to support a ju dgment again~ l the officers: Comfort u. Town of Pittsfield, 92'1 I•'. Su pp. 12 (D. Me. l 996) (after arresting plaintiIT for operali ng under the innu en e , poli rammed plaintiffs h ·ad into door jamh, causing him to fall and hit h ii:, head on the floor); Barber v. Guay, 9 10 F. Su pp. 79 l tD. M:e. 19<- 5) (i:ifll;r arresting plaintiff for theft, deputy wrc1tched pl· imirrs shoulder; twisted his wrist beh ind his back; and threw him into the cruiser head first); Urook.s v. Bailey . 19% U.S. Dist. LEXIS 18733, No. 95-22- P-H 1995 Wl 74 ,3,~o ( . M . IJ{' •. 8, 19 5) (in a rres ling plain tiff for rriminal trespa s s, police pus hed hi.in ar{ainst n tree; jcr kc.: . Me. l 994) (in a rrcsliug plaintiff for clisorderly condu 'l, police twisted plairtt1ll's arm s beh ind his bn k; p ickco him up o!T the floor ond c::irricd him uut of apartme11t; kick d h is legs Oll l fr m und r him; forced him tn his k.u es; slammed his c.;h(!S l and face. 11n l(> concrete; kn eed him in his hac k ; and slammed his face onto the pavement) ."

Richard~, 2001 ME 132, 'I{ 26, 780 A.2d 281.

11 holding the force used to be excessive "would have made it clear to a reasonable police

officer" that the force alleged to have been used against Richards could be held unlawful.

fd. (Emphasis added.)

Defendants contend that this case is distinguishable from Richards in numerous

respects, including: Shulcnburg is male; he was resisting arrest and disobeying lawful

commands; he presented a threat to the officers; he was not knocked to the ground; and

his injuries were not as pronounced as those of Ms. Richards upon examination at the

hospital. See Defendants' Reply Memorandum, at 4. True, the instant case does not

involve some of the pertinent facts in Richards; however, in light of the record the

differences are not so material as to support summary judgment.

There are facts in dispute concerning the circumstances prompting the officers'

use of force to take Shulenburg into protective custody as well as the nature and extent

of the force employed. Plaintiff alleges that defendants were frustrated and angry with

him; aggressively and without provocation grabbed and cuffed him; applied the

handcuffs forcefully and in a manner that injured his wrists; forcibly injured his finger

and punched him in the kidneys multiple times.4 Viewing the record in the light most

favorable to plaintiff, the court cannot conclude as a matter of law that defendants are

entitled to invoke qualified immunity at this stage of the case. Even though this case

did not involve an arrest for purposes of enforcing a violation of law, Richards and the

caselaw it cited present a sufficient foundation of authority to give a "clear signal" to a

reasonable police officer about what conduct "falls shorl of the constitutional norm."

The conduct alleged Ly Shl1lcnburg (which the officers deny) may or may not bear out

4 Defendants take issue not only with the nature of the force Shulcnburg alleges but also with the extent of injuries he claims to have suffered. See, e.g., (Dc:f."s Repl. 5 -6; Def.'s Add1 S.M.F. 1 2 .) Under Richards, the cxlt:nt of injuries is only H factor involved in the exccssiv force analysis. RicJmrd , 2001 ME 132, ,i '.W , 780 A.2d 28L. These are issues properly addressed at !rial.

12 al trial. In the context of a motion for summary judgment, however, it is sufficient to

overcome the defense of qualified immunity. Consequently, the motion for summary

judgment is denied as to count I.

C. Maine Civil Rights Act Claim Based on 34-B M.R.S. § 3862.

Count ll asserts a claim under section 4682(1 A) of the Maine Civil Rights Act,

which authorizes a private right of action against one who "intentionally interferes or

attempts to intentionally by physical force or violence" with a person's rights under the

law. 5 M. R.S. § 4682(1-A) . The claim in count II is expressly predicated on the assertion

that defendants "intentionally interfered by physical force with plaintiff's statutory right

not to be involuntarily hospitalized" under 34-B M.R.S. § 3862.5

Section 3862(1) authorizes a law enforcement officer to take a person into

protective custody if there is probable cause to believe that the person "may be mentally

ill and due to that condition the person presents a threat of imminent and substantial

physical harm" to himself or others. Id. § 3862(1). Defendants were not acting

pursuant to sect.ion 3862(1). There is no suggestion that they were attempting to place

Shulenburg in protective custody on the basis of mental illness or because he needed

involuntary hospitalization for psychiatric reasons.

Defendants assert, and the court agrees, that they had authority and probable

cause to take plaintiff into protective custody for emergency medical reasons. For

authority, they rely on Maine Department of Public Safety regulations, specifically the

Medical Direction and Practice Board (MOP) protocols of the Emergency Medical

· ,ou nl II do s not c1ss rt a ·ivil rig hts clai m bas<.:d ge nerally u pon fa lse imprisonm~nl or upun iUegal sei7.ur ·, nor upon a clci.m of u nlawful entry into hi s residence in vio la liun of his fo'o u rth Amqndm ·nL rights . (r\nd plaintiff did no t dci r · ·s defen dants ' argu m en ts on ll ' Int ' r issue in his op position to dcfi ,ru.lams' motion for su rnuinry judgment, and therefore that issue is waived. See Meftlliom v. Derl;y , 2006 M..: 110,111 ,905 A.2d 290 .)

13 Services Bureau. (D.S.M.F. 11 58-59.) The protocols include procedures for treatment

and transport of patients. Once a determination of medical urgency is made, if a patient

rduses to be transported a further determination is made as to whether the person has

capacity to make that decision. A patient without decision··making capacity is "one who

has one of the following: altered mental status or intoxicated, confused, delirious,

psychotic, comatose, unable to understand the language, or is a minor, el.c." {D.S.M.F.

,i 64.) Here, the paramedic on scene concluded that Shulenburg did not have decision­

making capacity based on a potential head injury; observed symptoms of combativeness

and other behaviors; had concerns about Shulenburg's mixed use of alcohol and

prescription medications and about his irrational disregard of the potential risk of

serious hann and even death posed without immediate medical evaluation. Dr. Nilson

at Medical Control confirmed and directed that Shulenburg be transported to the

hospital, either voluntarily or by protective custody. (D.S.M.F. n 65, 66, 70-76.) Probable cause is determined under an objective standard. State u. Parkinson,

389 A.2d l, 8 (Me. 1978). The court's determination of whether the involuntary

transport was reasonable "turns on whether an objectively reasonable officer would

have believed he had probable cause to take [plaintiffj into protective custody . . . . »

Alfano, 847 F.3d at. 79.

Plaintiff contends that defendants lacked probable cause because of the

conflicting opinion given by Shulenburg's primary physician that. he had the present

decision-making capacity to refuse treatment (though Dr. Major concurred that he

should be Lransported to the hospital). At the same lime, Dr. Major was not present at

the scene and did not have all of the information that was available to the on--scene

paramedic and Dr. Nilson at Medical Control. Even in light. of the conflicting opinions

being offered, based on the information available at the time an objectively reasonable

14 officer would have been justified in believing that medical urgency existed, further

medical evaluation was necessary, and Shulenburg was confused to the point where he

was incapable of making a rational decision. This was sufficient to establish probable

cause to take plaintiff into protective custody. See, e.g. Alfano v. Lynch, 847 F.3d 71,

79 (1st Cir. 2017), citing Cox u. Hainey, 391 F.3d 25, 31 (1st Cir. 2004) (For probable

cause, facts known at time would have had to 'give rise to a reasonable likelihood,' of

intoxication and incapacity); Crossroads Managed Care Systems, Inc., 195 F.3d 584,

590-91, 594 (10th Cir. 1999) (probable cause to take incapacitated individual into

protective custody under a municipal civil protection policy.)

The court concludes that defendants had authority and probable cause to take

Shulenburg into protective custody. The issue is whether they exercised their authority

in a manner that was unreasonable and involved use of excessive force--and that is t.he

essence of the claim in count I. Summary judgment as to count IT is granted.

D. Punitive Damages

Defendants' request for summary judgment on the claim of punitive damages is

denied. Punitive damages are available when express or implied malice is found by clear

and convincing evidence. Batchelder v. Realty Res. Hosp., LLC, 2007 ME 17,, 13, 914

A.2d 1116, citing Tuttle u. Raymond, 494 A.2d 1353, 1361-1363 (Me. 1985). Plaintiff

has asserted facts which support at least a primafacie punitive damage claim, including

the element of malice, such as the alleged statements made 1.iy the officers at. the time

as recounted above. Though disputed, these and other allegations establish a basis for

a prima facie case sufficient to survive summary judgment.

Conclusion and Order

Fort he foregoing reasons, there are questions of material f'Act concerning whether

defendants used excessive force in Laking Shulenburg into protective custody in order

15 to transport him to the hospital and whether the defense of qualified immunity is

available. Defendants' motion for summary judgment is therefore denied as to plaintiff's

excessive force claim in count l. As to count ll, plaintiff has not established a violation

the Maine Civil Rights Act as set out therein; has not established that defendants lacked

probable cause to take him into protective custody; and/or or has waived any additional

claims in counl IT. Partial summary judgment is wa1Tanted as to count II.

Accordingly, it is hereby ordered and the entry shall be: "Defendants' motion for

summary judgment granted as to count II and denied as to count I."

The clerk may incorporate this Memorandum of Decision and Order on Motion

for Summary Judgment by reference on the docket pursuant to M.R. Civ. P 79(a).

SO ORDERED.

Dated: June 13, 2018

eNTEREo ON THE DOCKET ON: