Wakelin v. Ambrose

STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. DOCKET NO. CV-21-019

GORDON W AKELIN, CELESTE )
CASSETTE, DARREN SETLOW, )
and JANICE O'ROURKE )
)
Plaintiffs, ) ORDER ON DEFENDANTS' MOTION
) FOR PARTIAL JUDGMENT ON THE
v. ) PLEADINGS
)
JAMES AMBROSE and MIA )
MARIETTA,

Defendants

Before this court is Defendants' Motion for Partial Judgment on the Pleadings and

Motion to Strike Plaintiffs' Recent Filings. For the following reasons, Defendants' Motion

for Judgment on the Pleadings is granted. Accordingly, Defendants' Motion to Strike is

denied as moot.

I. Factual Background

The Plaintiffs and Defendants are neighbors. The Plaintiffs allege that the

Defendants allow their dogs to behave in a manner that constitutes a nuisance, trespass,

and violates 7 M.R.S. § 3952-A. The Plaintiffs have previously filed a complaint about the

Defendants' dogs with the Yarmouth Police Department. The Plaintiffs also allege that

Defendant, James Ambrose, in his individual capacity, abused his authority as a law

enforcement officer in retaliation for that complaint. The following facts relevant to

Plaintiffs' abuse of authority claim are taken from the Plaintiffs' Complaint.

Defendant Ambrose is a Sherriffs Deputy with the Cumberland County Sherri££' s

Office. Plaintiffs allege that "in the past," Defendant Ambrose has "abused his authority

of that office by harassing Plaintiff Wakelin." (Pl's. Comp!. 'l[ 13.) The Complaint itself

details only one incident of alleged abuse of authority. The incident occurred on October

3, 2018, and it is alleged that Defendant Ambrose followed Plaintiff Wakelin from his

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home and performed an illegal stop of Plaintiff's vehicle for alleged speeding. Plaintiff

Wakelin alleges that Defendant Ambrose proceeded to "yell[] at Plaintiff Wakelin for

filing a complaint with the Yarmouth Police Department[.]" (Pl's. Compl. 'j[ 13.) Plaintiff

Wakelin, through counsel, filed a complaint regarding the incident with the Cumberland

County Sherriff's Office who "upon information and belief, found Ambrose's actions

unprofessional and in violation of his authority as a law enforcement officer." (Pl's.

Compl. 'j[ 14.)

The October 3 incident is the only allegation that suggests Defendant Ambrose

acted inappropriately with respect to his law enforcement authority. While Plaintiff

Wakelin has submitted an affidavit in support of the Complaint alleging that Defendant

Ambrose engaged in bullying behaviors on multiple other occasions, there are no

allegations that suggest these bullying incidents were done under the color of law or

performed while Defendant Ambrose was acting in his official capacity as a sheriff's

deputy.

The instant Complaint was filed on November 19, 2020. The Complaint alleges:

nuisance (Count I); violation of 7 M.R.S. § 3952-A (Count II); animal trespass (Count III);

and abuse of authority (Count IV). The Defendants have moved for partial judgment on

the pleadings in regard to Count IV. The Defendants allege that Count IV must be

dismissed because the claim is time barred by the statute of limitations found in the Maine

Tort Claims Act and, in the alternative, because "abuse of authority" is not a recognized

cause of action under Maine law.

II. Standard of Review

"After the pleadings are closed but within such time as not to delay the trial, any

party may move for judgment on the pleadings." M.R. Civ. P. 12(c). A motion for

judgment on the pleadings is treated the same as a motion to dismiss brought pursuant
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to M.R. Civ. P. 12(b)(6). See Wavenock, LLC. v. DOT, 2018 ME 83, 'l[ 4, 187 A.3d 609. A

motion to dismiss pursuant to M.R. Civ. P. 12(b)(6) "tests the legal sufficiency of the

allegations in the complaint, not the sufficiency of the evidence the plaintiffs are able to

present." Barnes v. McGough, 623 A.2d 144, 145 (Me. 1993)(internal citations omitted).

The court shall "consider the facts in the complaint as if they were admitted." Bonney v.

Stephens Mem. Hosp., 2011 ME 46, 'l[ 16, 17 A.3d 123. The complaint is viewed "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." Id. (quoting Saunders v. Tisher, 2006 ME 94, 'l[ 8, 902 A.2d 830). "Dismissal is

warranted when it appears beyond a doubt that the plaintiff is not entitled to relief under

any set of facts that he might prove in support of his claim." Id. The court is not bound

to accept legal conclusions in the complaint. See Seacost Hangar Condo. II Ass'n v. Martel,

2001 ME 112, 'l[ 16, 775 A.2d 1166.

Although the motion to dismiss "standard is forgiving, it must still give fair notice

of the cause of action by providing a short and plain statement of the claim showing that

the pleader is entitled to relief." Meridian Med. Sys., LLC v. Epix Therapeutics, Inc., 2021

ME 24, 'l[ 2, _ A.3d _ (quotations omitted). "The complaint must describe the essence

of the claim and allege facts sufficient to demonstrate that the complaining party has been

injured in a way that entitled him or her to relief." Id.

III. Discussion

The Defendants allege that Count IV, abuse of authority, is barred by the statute

of limitations found in the Maine Tort Claims Act. Civil actions against government

employees "shall be brought in accordance with the terms of the" MICA. 14 M.R.S. §

8103(1). "Every claim against a governmental entity or its employees permitted under

[the MICA] is forever barred ... unless an action therein is begun within 2 years after the
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cause of action accrues[.]" 14 M.R.S. § 8110. A government employee is defined as "a

person acting on behalf of a governmental entity in any official capacity[.]" 14 M.R.S. §

8102(1). Sheriffs and sheriff's deputies are government employees under the MTCA. See

30-A M.R.S. § 381 (statute governing appointment of sheriff's deputies); Hilderbrand v.

Wash. County Comm'rs, 2011 ME 132, 'l[ 11, 33 A.3d 425.

The MTCA governs Count IV because the Plaintiffs' allege that Ambrose abused

his authority while acting in his official capacity as a sheriff's deputy. However, the

Complaint only alleges the October 3rd incident to support the abuse of authority claim.

Although the Wakelin affidavit outlines additional instances of potentially abusive

conduct, these instances are not detailed within the four corners of the Complaint.

Moreover, the affidavit itself is unclear as to whether these instances occurred while

Ambrose was acting in his official capacity as a sheriff's deputy. Accordingly, the only

facts the Plaintiffs' might prove to support their abuse of authority claim occurred on

October 3, 2018.

The statute of limitations for a civil action arising out of Ambrose's stop of Wakelin

expired on October 3, 2020. The present action was not filed until November, 2020.

Accordingly, there are no set of facts alleged in the Complaint upon which the Plaintiff

would be entitled to relief because the actions giving rise to the cause of action occurred

more than two years before this action was filed. Accordingly, the Plaintiff has failed to

state a claim upon which relief could be granted in regards to Count IV.

The Plaintiffs' argument that dismissal is inappropriate because there are genuine

issues of material fact regarding the October 3 stop is unavailing. Whether there are

genuine issues of fact is a matter reserved for summary judgment under M.R. Civ. P. 56.

Although a motion for judgment on the pleadings may be converted to and disposed of

in accordance with the rules for summary judgment, such occurs if "matters outside the
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pleadings are presented to and not excluded by the court." M.R. Civ. P. 12(c). The

Defendants' Motion is limited to the allegations contained in the Complaint and the facts

that might be proven therefrom. It would therefore be inappropriate for this court to

convert the Motion to one for summary judgment.

V. Conclusion

Count N as alleged in the Complaint is barred by the statute of limitations found

in the Maine Tort Claims Act.

The entry is:

Defendants' Partial Motion to Dismiss is GRANTED and Count IV of Plaintiffs'

Complaint is hereby DISMISSED.

The Clerk is directed to incorporate this Order into the docket by reference

pursuant to Maine Rule of Civil Procedure 79(a).

Dated: June 1, 2021

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STATE OF MAINE SUPERIOR COURT
CUMBERLAND, ss. DOCKET NO. CV-21-019

GORDON WAKELIN, CELESTE )
CASSETTE, DARREN SETLOW, )
and JANICE O'ROURKE )
)
Plaintiffs, ) ORDER ON PLAINTIFFS' MOTION
) REQUEST FOR TEMPORARY
v. ) RESTRAINING ORDER
)
JAMES AMBROSE and MIA )
MARIETTA,

Defendants

Before the court is Plaintiffs' Motion for a Temporary Restraining Order. For the

following reasons, Plaintiffs' Motion is denied.

I. Facts

The Plaintiffs and Defendants are neighbors. The Plaintiffs allege that the

Defendants allow their dogs to behave in a manner that constitutes a nuisance, trespass,

and violates 7 M.R.S. § 3952-A. The Plaintiffs have previously filed a complaint about

the Defendants' dogs with the Yarmouth Police Department. The Plaintiffs also allege

that Defendant, James Ambrose, in his individual capacity, abused his authority as a law

enforcement officer in retaliation for the complaint to the Yarmouth Police Department.

The Plaintiffs have filed an affidavit from Plaintiff Gordon Wakelin in support of

this Motion. Wakelin alleges that the Defendants' dogs bark "almost constantly."

(Wakelin Aff. 'l[ 3.) Wakelin also alleges that Defendants' dogs are aggressive to such an

extent that the Plaintiffs' are unable to play with their own animals or enjoy their own

respective yards. W akelin also states that the barking begins every morning at

approximately 6:00 a.m. and that delivery drivers refuse to deliver packages past the end

of Plaintiffs' respective driveways. Although W akelin alleges that Animal Control has

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been notified about these issues, no evidence of any Animal Control investigation has

been provided in support of this Motion.

Defendant, James Ambrose, is a Sherriff's Deputy with the Cumberland County

Sherriff's Office. The Wakelin affidavit alleges multiple incidents where Defendant

Ambrose has engaged in bullying behavior and intentionally induced his dogs to start

barking or howling. Some of these incidents are alleged to have occurred while

Defendant Ambrose was in his Cumberland County patrol vehicle. Although the

affidavit states that Wakelin has video and photographic evidence of these and other

incidents, is has not been provided in support of this Motion.

The Plaintiffs filed this action alleging: common law public and private nuisance

(Count I); violation of 7 M.R.S. § 3952-A (Count II); animal trespass (Count III); and abuse

of authority (Count IV). The Plaintiffs' Complaint also requests a Temporary Restraining

Order and Preliminary Injunction on Counts I and IV:

II. Legal Standard

A court may grant a temporary restraining order if it concludes the following

criteria are met: (1) the plaintiff will suffer irreparable injury if the injunction is not

granted; (2) such injury outweighs any harm which granting the injunctive relief will

inflict on the Defendant; (3) the plaintiff has a likelihood of success on the merits; and, (4)

the public interest will not be adversely affected by granting the injunction. Bangor

Historic Track, Inc. v. Dep't of Agriculture, 2003 ME 140, 'l[ 9, 837 A.2d 129. "Failure to

demonstrate that any one of these criteria are met requires that injunctive relief be

denied." Bangor Historic Track, Inc. v. Dep't of Agric., Food & Rural Res., 2003 ME 140, 'l[10

837 A.2d 129 (citation omitted).

III. Discussion

A. Nuisance
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The elements of common law private nuisance are: (1) the defendant acted with

the intent of interfering with another's right to use and enjoy their own property; (2)

interference of the kind intended; (3) the interference was substantial such that it caused

a reduction in the value of the land; and (4) the interference was of such a nature,

duration, or amount as to constitute unreasonable interreference with the use and

enjoyment of the land. See Johnson v. Me. Energy Recovery Co., Ltd. P'ship, 2010 ME 52, 'I[

15, 997 A.2d 741. Conversely, a public nuisance is an unreasonable interference with a

right common to the general public and the plaintiff must show that they have suffered

some special or peculiar damages other than those sustained by the public generally. See

Charlton v. Town of Oxford, 2001 ME 104, 'I[ 27, 774 A.2d 366; see also Restatement (Second)

of Torts§ 821B (1979).

1. Likelihood of Success on the Merits

The Plaintiffs' must show that success on the merits of their nuisance claims is

"reasonably likely." See generally Bangor Historic Track Inc., 2003 ME 140, 'I[ 9, 837 A.2d

129; Department of Environmental Protection v. Emerson, 563 A.2d 762, 167-68 (Me. 1989).

Here, the Plaintiffs' have failed show that they are reasonably likely to succeed on the

merits for a public and private nuisance because there is insufficient evidence to establish

whether there has been an unreasonable interference with the use and enjoyment of

Plaintiffs' property. The only evidence presented to support Plaintiffs' nuisance claims

are the allegations contained in the Wakelin affidavit. These allegations, if proven, could

constitute an intentional and unreasonable interference with the Plaintiffs' use and

enjoyment of their property. However, no evidence has been presented to corroborate

Wakelin's allegations. Although Wakelin claims to have evidence that supports his

allegations, such claims are an insufficient substitute for the evidence itself. Without

more, the court cannot say that the Plaintiffs' have shown that they are reasonably likely
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to prove an unreasonable interference with the use and enjoyment of their property.

Accordingly, the Plaintiffs cannot show that they are entitled to a temporary restraining

order.

B. Abuse of Authority

The court has dismissed Plaintiffs' abuse of authority claim (Count IV).

Accordingly, the Plaintiffs' request for a TRO is moot with regard to Count IV.

Conclusion

The Plaintiffs' Motion for a Temporary Restraining Order is DENEID. Should the

Plaintiffs wish to present further evidence in support of their request for a preliminary

injunction, the Plaintiffs should either provide that evidence to the court by motion or

request an evidentiary hearing.

This Order is incorporated on the docket by reference pursuant to M.R.Civ.P.

79(a).

DATE: June 1, 2021
r ayKennedy
ce, Maine Super~ ourt
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