Cousins v. Higgins, 1:14-cv-00515-DBH

ROBERT L. COUSINS, et al., Plaintiffs, v. KEITH HIGGINS, et al., Defendants

1:14-cv-00515-DBH

UNITED STATES DISTRICT COURT DISTRICT OF MAINE

June 28, 2018

RECOMMENDED DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

In this matter, Plaintiffs allege that Defendants were negligent and violated their civil rights in connection with a fire that destroyed their home, restaurant and adjacent property on December 4, 2013. The matter is before the Court on Defendants' Amended Motion for Summary Judgment. (Defendants' Amended Motion for Summary Judgment, ECF No. 77.) Through their motion, Defendants assert that Plaintiffs have failed to demonstrate a factual basis for their claims, and that Plaintiffs' claims are barred by state and federal immunity doctrines.

Defendants consist of the Town of Tremont, the Tremont Volunteer Fire Department, Keith Higgins, Heath Higgins, Samuel Chisolm, Colton Sanborn, Tadd Jewett, Mathew Lindsley, and Matthew Tetreault. The pending claims are set forth in Count II (equal protection), Count IV (substantive due process), Count VIII (emotional distress), and Counts XI - XII (negligence).

Following a review of the record and after consideration of the parties' arguments, I recommend the Court grant Defendants' motion.

SUMMARY JUDGMENT STANDARD

"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "After the moving party has presented evidence in support of its motion for summary judgment, 'the burden shifts to the nonmoving party, with respect to each issue on which he has the burden of proof, to demonstrate that a trier of fact reasonably could find in his favor.'" Woodward v. Emulex Corp., 714 F.3d 632, 637 (1st Cir. 2013) (quoting Hodgens v. Gen. Dynamics Corp., 144 F.3d 151, 158 (1st Cir.1998)).

A court reviews the factual record in the light most favorable to the non-moving party, resolving evidentiary conflicts and drawing reasonable inferences in the non-movant's favor. Hannon v. Beard, 645 F.3d 45, 47-48 (1st Cir. 2011). If a court's review of the record reveals evidence sufficient to support findings in favor of the non-moving party on one or more of his claims, a trial-worthy controversy exists and summary judgment must be denied as to any supported claim. Id. Unsupported claims are properly dismissed. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986) ("One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses.").

THE SUMMARY JUDGMENT RECORD

When presented with a summary judgment motion, a court ordinarily considers only the facts included in the parties' statements of material facts, which statements must besupported by citations to evidence of record. Federal Rule of Civil Procedure 56(c) and District of Maine Local Rule 56(b) - (d) require the specific citation to record evidence. In addition, Local Rule 56 establishes the manner by which parties must present their factual statements and the evidence on which the statements depend. A party's pro se status does not relieve the party of the obligation to comply with the court's procedural rules. Ruiz Rivera v. Riley, 209 F.3d 24, 27 - 28 & n. 2 (1st Cir. 2000); Marcello v. Maine, 489 F. Supp. 2d 70, 77 (D. Me. 2007).

By rule, a party seeking summary judgment must file, in addition to its summary judgment motion, a supporting statement of material facts setting forth each fact in a separately numbered paragraph, with each factual statement followed by a citation to evidence of record that supports the factual statement. D. Me. Loc. R. 56(b). A party opposing a motion for summary judgment must file an opposing statement in which it admits, denies, or qualifies the moving party's statements by reference to each numbered paragraph, with citations to supporting evidence, and in which it may set forth additional facts, in separately numbered paragraphs, with citation to supporting evidence. D. Me. Loc. R. 56(c). If an additional statement is introduced by the non-moving party, then the moving party must file a reply statement in which it admits, denies, or qualifies the non-moving party's additional statements by reference to each numbered paragraph, with citations to supporting evidence. D. Me. Loc. R. 56(d).

"Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted." D. Me. Loc. R. 56(f). Additionally, "[t]he court may disregardany statement of fact not supported by a specific citation to record material properly considered on summary judgment." Id. Finally, "[t]he court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties' separate statement of facts." Id.

Defendants filed a statement of material facts in support of their motion. (ECF No. 76.) In support of each individual statement, Defendants cited record evidence, and attached to their statement the cited evidence. Defendants, therefore, have satisfied the requirements of Local Rule 56. Plaintiffs have not complied with the Rule. Specifically, Plaintiffs have not filed a direct response to Defendants' statement of material facts. Under the Local Rule, Defendants' statements are "deemed admitted" because Plaintiffs failed to dispute Defendants' statements - by denying or qualifying the statements, and by citing record evidence to support their denials and qualifications. D. Me. Loc. R. 56(f). Additionally, while Plaintiffs have provided a competing factual narrative (i.e., the portion of their opposition labeled "facts" in which they set forth 70 statements), none of the individual statements in the narrative is followed by a citation to record evidence. By Rule, "[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment." Id.

In their summary judgment submission, Plaintiffs include factual statements that could conceivably be material to the summary judgment assessment. Plaintiffs, however, do not cite to supporting record evidence. Without citation to the record, Plaintiffs' assertions do not constitute record evidence for purposes of summary judgment. "[T]he Court is required to maintain a strict neutrality between opposing parties and even thougha more forgiving reading may be appropriate for a pro se party in the summary judgment context, it is also true that '[j]udges and magistrate judges who review these filings must be able to rely on procedural rules so as to avoid becoming the lawyer for the unrepresented [party] or devoting an excessive portion of their time to such cases.'" United States v. Baxter, 841 F. Supp. 2d 378, 383 (D. Me. 2012) (quoting Clarke v. Blais, 473 F. Supp. 2d 124, 129 (D. Me. 2007)).

Nevertheless, the factual assertions contained in the verified complaint and affidavits filed in connection with the summary judgment motion can be considered. That is, where a pro se litigant has failed to comply strictly with the summary judgment rules, this Court has considered the sworn assertions of record. See Clarke v. Blais, 473 F. Supp. 2d 124, 128 - 30 (D. Me. 2007) ("The First Circuit has not addressed this notice debate directly, but has said, in the summary judgment context, that unrepresented plaintiffs' opposing affidavits and opposition papers are to be read 'liberally.'" (citing Posadas de Puerto Rico, Inc. v. Radin, 856 F.2d 399, 401 (1st Cir. 1988), and Mas Marques v. Digital Equip. Corp., 637 F.2d 24, 27 (1st Cir. 1980)); Demmons v. Tritch, 484 F. Supp. 2d 177, 182 - 83 (D. Me. 2007). In this case, in addition to the summary judgment record, I have considered Plaintiffs' verified complaint and the affidavits filed by Plaintiffs in this action to the extent the allegations in the complaint and the assertions in the affidavits include facts that would be admissible in evidence and otherwise comply with the requirements of Federal Rule of Civil Procedure 56(c)(4).¹

SUMMARY JUDGMENT FACTS

On December 4, 2013, a fire of undetermined origin destroyed Plaintiffs' restaurant and residence in Tremont, Maine. (Defendants' Stmt. of Material Facts (DSMF) ¶ 1, ECF No. 76.) A notable feature of the premises was a 40-foot tower/lighthouse built by Plaintiff Robert Cousins within the existing footprint of the preexisting restaurant/residence. (Id. ¶¶ 3, 5, 6.) The fire began on the top floor of the tower. Including the ground floor, the tower was a five story structure.

According to the report of the State Fire Marshal's Office, Plaintiff Judy Cousins reported that the fire started at approximately 7:15 p.m. (Id. ¶ 8.) Robert Cousins told investigators that he attempted to put out the fire with a fire extinguisher, and told Judy Cousins to dial 9-1-1. (Id. ¶¶ 9, 10.)

The record reflects that a woman named Paula Farrell called 9-1-1 at 7:44 p.m., and reported that the top of the lighthouse tower was "all in flames—it's all on fire—it's all engulfed." (Declaration of Nicholas Hardwick, Southwest Harbor Police Department, ECF No. 76-10/82-3; Ex. 4 to Hardwick Declaration (removable media file).) Upon receipt of Ms. Farrell's report, an officer sent an emergency tone to the Tremont Volunteer Fire Department at 7:45 p.m., reporting that the tower was on fire. (DSMF ¶ 12.)

Fire Chief Keith Higgins of the Tremont Volunteer Fire Department, a defendant in this action, then directed volunteer firefighters to the fire scene, and told the dispatcher to call both the Southwest Harbor and Mount Desert Fire Departments for assistance at the fire scene. (Id. ¶ 13.) Chief Higgins and several volunteer firefighters from the Tremont Volunteer Fire Department arrived at the fire scene at approximately 7:49 p.m. (Id. ¶ 14.)²

According to Plaintiffs, Defendant Heath Higgins was the first...