ELISENS v. MAINE INSTRUMENT FLIGHT et al

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
BRENT ELISENS, 	)
)
Plaintiff 	)
)
v. 	) 	No. 1:25-cv-00617-LEW
)
MAINE INSTRUMENT FLIGHT and 	)
UNIVERSITY OF MAINE SYSTEM, 	)
)
Defendants 	)
ORDER ON RECOMMENDED DECISION AND OBJECTION
On February 20, 2026, the United States Magistrate Judge filed with the court, with copies
to pro se Plaintiff Brent Elisens, his Recommended Decision After Review of Plaintiff’s Complaint
(ECF No. 8), in which the Magistrate Judge recommends that the case be dismissed. Plaintiff filed
his Objection (ECF No. 9) on February 21, 2026, and also filed a couple of exhibits thereafter
(ECF Nos. 10, 11). 	I have reviewed and considered the Recommended Decision, together with
the entire record, and I have made a de novo determination of all matters adjudicated by the
Recommended Decision. 	I incorporate by reference the Recommended Decision’s recitation of
the pleading standard as well as the components of an inverse possession case involving an
“avigation” easement.
Based on Plaintiff’s submissions, the University of Maine System allegedly is responsible
for the operation of an aircraft registered as N71UM and its instructors and students conducts
frequent, low altitude flights directly over and/or immediately adjacent to Plaintiff’s residence.
Reading Plaintiff’s Objection as presenting supplemental allegations, Plaintiff also alleges that
aircraft operators practice altitude and throttle adjustments directly over his property that maximize
engine noise. Although the standard for success on an avigation-easement, inverse condemnation
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claim appears to be rather demanding, I find that the allegations of the Complaint as supplemented
by the Objection are minimally sufficient to state a claim. 	The precise altitude, frequency, and
decibel levels of the alleged overflights do not need to be proven or stated in exacting detail at this
stage. 	Service of the Complaint on the University of Maine System is appropriate at this time,
without prejudice to the System’s ability to move to dismiss the claim based on the failure to name
the proper defendant, sovereign immunity, or other grounds.
As 	for 	Maine 	Instrument 	Flight, 	the 	other 	named 	Defendant, 	I 	agree 	with 	the
recommendation that the allegations do not suggest that this private company would be liable on
a takings claim since it does not appear to be a government entity. Additionally, based on my own
screening review, I dismiss summarily the intentional infliction of emotional distress (IIED) claim
for failing to state a claim for which relief may be granted. The elements of an IIED claim include
a requirement that the defendant’s 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.” Curtis v. Porter, 784 A.2d 18, 22-23 (Me. 2001) (quoting Champagne v. Mid-Maine
Med. Ctr., 711 A.2d 842, 847 (1998)). 	Plaintiff’s allegations offer enough to support a finding
that an objective, reasonable person would experience frustration and annoyance with the noise
associated with Defendants’ flights over Plaintiff’s property, but the allegations are not enough to
support a finding of conduct so extreme and outrageous as to exceed all possible bounds of decency
to qualify as atrocious and utterly intolerable. Since the Complaint does not state a viable claim
against Maine Instrument Flight, Maine Instrument Flight will be dismissed without prejudice.
Before concluding this Order, I note that Plaintiff’s supposition that he might recover a
money damages award in federal court against an agency of the State of Maine is problematic on
Eleventh Amendment grounds. The Eleventh Amendment, however, would not apply to a takings
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claim presented in a State of Maine court. See also Me. Const. Art. 1, § 21. It only applies in a
federal court.1
1 In a somewhat similar case, a judge in the Northern District of New York addressed an Eleventh
Amendment challenge as follows:
Plaintiffs argue that the “Supreme Court has never addressed the applicability of Eleventh
Amendment immunity to Takings Clause claims filed against States” and “[s]ubstantial
scholarship supports the view that the Eleventh Amendment is inapplicable to such
claims.” (Dkt. No. 37-1, at 19).
A district court in the United States District Court for the Eastern District of New York has
recently considered, and rejected, this argument. The court noted that while “neither the
Supreme Court nor the Second Circuit has decisively resolved” whether the Eleventh
Amendment immunizes a state agency from a takings claim brought in federal court, “[t]he
overwhelming weight of authority among the circuits” is that “sovereign immunity trumps
the Takings Clause – at least where ... the state provides a remedy of its own for an alleged
violation.” Cmty. Hous. Improvement Program v. City of New York, No. 19-cv-4087, 2020
WL 5819900, at * 3, 2020 U.S. LEXIS 181189, at *10 (E.D.N.Y. Sept. 30, 2020). The
court noted that the Second Circuit “recently affirmed a decision that held the Eleventh
Amendment to bar a takings claim, but in a non-precedential summary order that did not
analyze the question in detail.” Id. (citing Morabito v. New York, 803 F. App'x 463, 464-
65 (2d Cir. 2020)) (summary order) (affirming dismissal of Takings Clause claim against
New York, a state agency and state official in his official capacity because the Eleventh
Amendment “generally bars suits in federal courts by private individuals against non-
consenting states”), aff'g No. 17-cv-6853, 2018 WL 3023380, 2018 U.S. Dist. LEXIS
101502 (W.D.N.Y. June 18, 2018). The Eastern District of New York court concluded that
sovereign immunity barred a money damages takings claim against New York, a state
agency and a state official in his official capacity. Cmty. Hous. Improvement Program,
2020 WL 5819900 at *4, 2020 U.S. LEXIS 181189, at *14-15. Other district courts within
the Circuit have issued similar rulings. See MPHJ Tech. Invs., LLC v. Sorrell, 108 F. Supp.
3d 231, 242 (D. Vt. 2015) (ruling that “to the extent [Plaintiff] is seeking damages under
the Takings Clause, its claim against the Attorney General in his official capacity is barred
by the Eleventh Amendment); Gebman v. New York, No. 07-cv-1226, 2008 WL 2433693,
at *4, 2008 U.S. Dist. LEXIS 46125, at *11-12 (June 12, 2008) (ruling that the Eleventh
Amendment bars § 1983 due process and regulatory takings claims against the State).
This Court agrees and declines to rule, absent any persuasive authority,[] that a Takings
Clause claim abrogates Eleventh Amendment state sovereign immunity. Therefore, all of
Plaintiffs’ § 1983 claims against DOT for monetary relief and against Dominguez in her
official capacity for monetary relief must be dismissed because they are barred by the
Eleventh Amendment.[]
5465 Route 212, LLC v. New York State Dep’t of Transp., No. 1:19-cv-01510, 2020 WL 6888052, at *5-6
(N.D.N.Y. Nov. 24, 2020) (footnotes omitted). In addition to the Eleventh Amendment concern, if Plaintiff
decides to remain in this Court he may need to name as a defendant the officer responsible for the operation
of the Augusta State Airport. For now, however, the allegations are minimally sufficient to state a claim
and identify one seemingly responsible state agency.
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Based on my de novo screening analysis of Plaintiff’s pleadings, including supplemental
assertions found in his Objection, the Recommended Decision of the Magistrate Judge is
OVERRULED IN PART and AFFIRMED AND ADOPTED IN PART (ECF No. 8). 	Plaintiff’s
claim of intentional infliction of emotional distress is DISMISSED under 28 U.S.C. § 1915(e)(2)
for failure to state a claim. Additionally, Defendant Maine Instrument Flight is dismissed without
prejudice. The remaining claim for the alleged taking of property without just compensation will
be served on the University of Maine System by the United States Marshals Service.
S O O RDERED.
Dated this 17th day of April, 2026.
/s/ Lance E. Walker
C HIEF U.S. DISTRICT J UDGE
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