Simpson v. Cumberland County

JEFFREY E. SIMPSON, Plaintiff

v.CUMBERLAND COUNTY, MARK DION, EJ. BURKE, WAYNE PIKE, AND DANIEL HASKELL, Defendants

DOCKET NO. CV-04-765

Supreme Judicial Court of Maine

Date: April 1, 2011

ORDER ON CROSS

MOTIONS FOR SUMMARY

JUDGMENT

BEFORE THE COURT

Before the court is Defendants' Motion for Summary Judgment pursuant to M.R. Civ. P. 56, on Plaintiff's claims against Defendants Cumberland County, Mark Dion, E.J. Burke, Wayne Pike, and Officer Daniel Haskell. Also before the court is Plaintiff's Cross Motion for Summary Judgment.

PROCEDURAL BACKGROUND

The Plaintiff, Jeffrey Simpson is incarcerated in the United States Federal Penitentiary in Lewisburg, Pennsylvania. His expected release date is April 12, 2028. Simpson filed his Original Complaint on December 20, 2004, against Cumberland County for events Simpson alleges occurred while in custody at the Cumberland County Jail (CCJ) between October 2003 and July 2004. The Plaintiff filed an Amended Complaint on January 5, 2005, which in addition to Cumberland County, named Mark Dion, E.J. Burke, Wayne Pike, Officer Daniel Haskell, and an Unknown Officer as individual defendants. The CCJ and/or the Cumberland County Sheriff's Department employed each of the named individual defendants when Simpson was in custody in the CCJ. Count Iof the Complaint is a claim under the Maine Tort Claims Act (MTCA), which alleges Defendants negligently used pepper spray against a person in the jail cell next to Simpson's, causing Simpson to suffer physical pain from the pepper spray. Count II asserts negligent infliction of emotional distress and Count III asserts intentional infliction of emotional distress. Counts II and III both relate to Simpson's claim that the CCJ recorded his telephone calls.

On November 23, 2005, the Defendants filed a Motion for Summary Judgment. On December 9, 2005, Simpson filed a Motion for Leave to file an Amended Complaint, and submitted a Second Amended Complaint. On December 22, 2005, Plaintiff filed an Opposition to Defendant's Motion for Summary Judgment, and also filed a Cross Motion for Summary Judgment.

Simpson's Second Amended Complaint attempts to add Brian Cummings, Peter Crichton, Francine Breton, and Nancy Vigue as defendants, and also attempts to add additional claims, including: (1) an alleged violation of 15 M.R.S. § 711-which provides a civil damages remedy against those who intercept wire and oral communications; (2) fraud for using a pen register; (3) spoliation of evidence;¹ (3) invasion of privacy; (4) negligence for "the manner in which [the Defendants] intercepted the Plaintiff's dial impulses and communications occurring on the prisoner telephones;" (4) nuisance due to thealleged interference with phone communications; and (5) assault and battery related to the pepper spray incident.²

The Defendants oppose Simpson's Motion to Amend his Complaint alleging the addition of parties and claims is untimely. However, the court permits Simpson's Second Amended Complaint. The court will rule on the Cross Motions for Summary Judgment that are presently before the court and allows Defendants to address the additional parties and claims in a later motion, if they should chose to do so.

The court addresses the Defendants' Motion, and Plaintiff's Cross Motion for Summary Judgment below.

FACTUAL BACKGROUND

Jeffrey Simpson went into custody at the CCJ on October 9, 2003, where he remained until June 2004. Both of Simpson's claims arise from events that occurred while he was in custody at the CCJ.³

1. Facts of Alleged Telephone Recording

During the time that Simpson was in custody in the CCJ he requested to use a non-recorded telephone to call his attorney. He was advised that he could use the phone in the day room area of his cellblock to make a collect phone call.Simpson requested further information about the phone system, and he was advised that further information would not be provided because it presented a security issue to the facility. Simpson claims mat the CCJ's telephone system was capable of monitoring and recording prisoner phone conversations.⁴ However, the exhibits referenced in Simpson's Response to the Defendants' Statement of Material Facts do not support Simpson's contention.⁵ According to the Defendants, the CCJ did not have the ability to listen in on or record Simpson's phone calls when he was incarcerated.⁶

A now defunct company called T-NETIX designed the jail's phone system. The Maine County Jails obtained T-NETIX phones through its contract with BellAtlantic from February 2000 to February 2005. The phones were replaced when the contract expired and the Maine County Jails entered into a new contract. Simpson claims that in removing the T-NETIX system the CCJ failed to preserve evidence relevant to his claims. In his affidavit, Simpson states that the CCJ's computerized telephone system monitored phone calls. He claims that at least eight of his phone calls were intercepted and stored through the jail's telephone system. Relying on the T-NETIX brochure, Simpson claims that the T-NETIX telephones had real time monitoring and recording capability, and that the phones also recorded the phone numbers of calls. Simpson appears to infer that the jail had the technology to record conversations (as detailed in the brochure) based on the following: (1) a response to a grievance appeal from Mark Dion, in which Dion says: "The computerized phone system is standard in all correctional facilities;" and (2) a prior experience in the Penobscot County Jail in 2002, in which his conversations were recorded and he was prosecuted for witness tampering based on the recorded telephone conversations.

2. Facts of Pepper Spray Incident

On November 23, 2003, according to the Defendants, Corrections Officers Brian Cummings and Daniel Haskell were working in the maximum-security area of the CCJ. While conducting a security check, Cummings saw inmate Robert Anthony jump down from his sink, and Cummings advised Anthony that he is not allowed to stand on the sink. Anthony began to yell obscenities. Cummings attempted to speak through the crack on the edge of the cell door to calm Anthony down. When Cummings did so, Anthony threw warm soup in Cummings face, and yelled more obscenities. Officer Haskell responded by going to the officer's station, where he grabbed handcuffs. Haskell then openedthe food chute, and ordered Anthony to stop yelling and put his hands through the food chute. Anthony continued to yell obscenities and refused to comply with the order to place his hands through the food chute. In response to Anthony's refusal and his continued disruptive behavior, Cummings sprayed a quarter second burst of oleoresin capsicum (pepper spray) into Anthony's cell through the food slot. Approximately five minutes later Anthony became compliant and Haskell and Cummings were able to place handcuffs on Anthony's wrists and take him to the shower.

Anthony was given 15 minutes to wash his eyes out and shower and he declined to be evaluated by medical staff. Cummings and Haskell continued to work the maximum-security shift afterwards, and they were unaffected by the fumes from the capsicum spray. No other inmates were exposed to the capsicum fumes from the spray and none of the other inmates requested to shower to rinse the spray, or requested medical attention. Officer Cummings stated in his affidavit that the use of the spray was reasonable because if Anthony's behavior were left unchecked it would escalate and potentially create a risk either to the inmate or to jail staff.

The Cumberland County Sheriff's Department Field Services Guide General Order No. 2-23 governs the use of oleoresin capsicum spray.⁷ General Order No. 2-23 as well as pertinent sections of the training manual for the use ofoleoresin capsicum (pepper spray) were attached to Mark Dion's March 15, 2005 response to Simpson's request for documents and interrogatories. General Order No. 2-23 permits the use of pepper spray to subdue a violently resisting subject or to deter a person engaged in riotous conduct. The training manual states that an officer should use two quarter second bursts of the pepper spray to subdue a person when in still air and at a distance of 4-6 feet, and it says that an officer should repeat until the desired effect occurs.

According to Simpson, his cell was directly adjacent to Robert Anthony's cell and the doors to their cells were sliding doors. Simpson says that he and Anthony were able to see each other through the crack of the doors. Simpson provides a different account of the events after Anthony threw the soup at Cummings. Simpson says that prior to attempting to handcuff Anthony, Officers Haskell and Cummings discharged the capsicum spray into Anthony's cell for four to five seconds in retaliation. Approximately five minutes later, Anthony became compliant and Haskell and Cummings handcuffed Anthony. Simpson says that Officers Haskell and Cummings, as well as the nurse, exhibited adverse effects from the spray, and he claims that the vapors were not confined to Anthony's cell. Simpson says that he and fellow prisoner Douglas Lafrance also suffered from the capsicum spray. He claims that when he and Lafrance requested medical attention as well, the nurse said there was nothing she could do. Haskell and Cummings ignored his complaints about the vapors, and Simpson says he suffered from the fumes for about two hours.

DISCUSSION

I. Standard of Review

Summary judgment should be granted if there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. M.R. Civ. P. 56(c). In considering a motion for summary judgment, the court should consider the facts in the light most favorable to the non-moving party, and the court is required to consider only the portions of the record referred to and the material facts set forth in the parties' Rule 56(h) statements. E.g., Johnson v. McNeil, 2002 ME 99, ¶ 8, 800 A.2d 702, 704....