GUAY et al v. TOWN OF BERWICK

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DARREN GUAY, et al., 	)
)
Plaintiffs 	)
)
v. 	) 	No. 2:26-cv-00179-LEW
)
TOWN OF BERWICK, 	)
)
Defendant 	)
ORDER ON RECOMMENDED DECISION, RELATED ORDER TO SHOW
CAUSE, PLAINTIFFS’ MOTION FOR LEAVE TO FILE, EMERGENCY
MOTION FOR IMMEDIATE RULING AND MOTION FOR
PRELIMINARY INJUNCTION
This matter returns following service of the Defendant Town of Berwick and the
Town’s filing of its Opposition (ECF No. 28) to Plaintiff Mary Downing and Darren
Guay’s Motion for Preliminary Injunction (ECF No. 22), which, following Plaintiffs’
recent Reply (ECF No. 31), is now under advisement. 	Also ready for disposition are the
Magistrate Judge’s Recommended Decision (ECF No. 19) and the related order to show
cause contained in the June 17, 2026, Order on Motion and Procedural Order (ECF No.
24); Plaintiffs’ Motion for Leave to File Out of Time and Request that the Court Consider
the Attached Submissions Notwithstanding Lateness (ECF No. 29); and Plaintiffs’
Emergency Request for Immediate Ruling or Status Conference (ECF No. 30).
The following rulings are based on a familiar factual background and legal standards
that have been set out in prior orders concerning the evidentiary and legal requirements for
obtaining extraordinary relief in the form of a temporary restraining order or preliminary
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injunction. 	The reader’s familiarity with the facts and law stated in those prior orders is
assumed.
A. 	R ECOMMENDED D ECISION AND ORDER TO SHOW C AUSE
Rod Downing has never provided the Court with a suitable affidavit demonstrating
his inability to pay the filing fee. The Magistrate Judge recommended that he be dismissed
from the case unless he either attends to the need for a financial affidavit or else pays his
filing fee. 	In my Order on Motion and Procedural Order I reserved the recommendation
and extended the deadline for compliance. 	Mr. Downing has responded to the order to
show cause (see ECF No. 26), but he still has not complied with the affidavit requirement.
Instead, he proposes that the Court relieve him of the burden of proving his indigency
because the Town is, allegedly, responsible for his current financial difficulties, which he
does not otherwise demonstrate by affidavit. 	I now ACCEPT AND ADOPT the
Recommended Decision and DISMISS Rod Downing from this case for the reasons
outlined in the Recommended Decision and for his second failure to properly respond to
an order to show cause.1
B. 	P LAINTIFFS ’ M OTION F OR LEAVE TO F ILE
Plaintiffs did not file a timely reply to the Town’s Opposition. They did, however,
file a belated reply and a Motion for leave to do so. Plaintiff’s Motion for Leave (ECF No.
1 Plaintiffs Darren Guay and Mary Downing filed a document titled Irrevocable Authorization and Power of Attorney
(ECF No. 31-8) with which they evidently intend to establish their right to represent Rodney Downing “with respect
to all matters concerning the real property located at 17 Riley’s Run, Berwick, Maine.” The document appears to bear
an electronic signature by Mr. Downing. However, the document is not notarized. Additionally, even if the document
were notarized, it would not entitle Mr. Guay and Ms. Downing to represent Mr. Downing in this Court. As non-
lawyers, they may represent only themselves. Herrera-Venegas v. Sanchez-Rivera, 681 F.2d 41, 42 (1st Cir. 1982);
United States v. Ponte, 246 F. Supp. 2d 74, 80 (D. Me. 2003).
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29) is GRANTED and the Court will consider the belated Reply and related exhibits (ECF
No. 31).
C. 	PLAINTIFFS ’ EMERGENCY M OTION FOR IMMEDIATE RULING
Plaintiffs have filed an Emergency Request for Immediate Ruling or Status
Conference (ECF No. 30). 	As cause, they explain that the Town’s April order setting a
July deadline for demolition of the property has expired. They also note that the Town’s
underlying hearing and its order were merely noticed by the Town in newspapers and that
they did not receive personal notice of either the hearing or the resulting order.
Maine law does require notice, but only that notice be served on “the owner and
parties in interest.” 17 M.R.S. § 2857. Mr. Guay and Ms. Downing have not demonstrated
that they qualify as either owners or parties in interest for purposes of receiving notice of
a dangerous building proceeding. In fact, their declarations merely indicate that they were
occupants of the property. M. Downing Aff. ¶ 2 (ECF No. 31-6); D. Guay Aff. ¶ 2 (ECF
No. 31-5). Parties in interest are more than mere occupants. See 17 M.R.S. § 2851 (cross-
referencing 14 M.R.S. § 6321 (“‘Parties in interest’ includes mortgagors, holders of fee
interest, mortgagees, lessees pursuant to recorded leases or memoranda thereof, lienors and
attaching creditors . . . .”)). Assuming for the sake of argument that the Town’s effort to
serve Rod Downing was inadequate, neither Mr. Guay nor Ms. Downing may bring a
putative due process claim premised on lack of service on Mr. Downing’s behalf in this
forum, because neither Mr. Guay nor Ms. Downing is an attorney. See Herrera-Venegas,
681 F.2d at 42; Ponte, 246 F. Supp. 2d at 80. Moreover, Maine law provides a means of
redress in state court through a petition for judicial review. The alleged service defect can
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be presented in such a proceeding and presumably was ascertainable to Mr. Downing
within days of the Town’s hearing, given Mr. Guay’s observation of the same and his
related filings in this Court.
Plaintiffs also emphasize that they received only three days to retrieve property from
the wreckage. The fact that they received little time and little notice about the limitation
on their ability to freely retrieve items of personal property is not proof that extraordinary
relief is required now in the form of a preliminary injunction. 	The question for now is
whether they can access the personal property prospectively without a court order. 	For
reasons that will be addressed below in the context of the Motion for Preliminary Injunction
I conclude that they can.
Plaintiffs also assert that the Town determined that their former residence is
dangerous based on the mere representation of the Town’s code enforcement officer, since
no expert was asked to opine at the municipal hearing. They say that in the absence of an
expert opinion from an engineer the Town’s finding that the building is dangerous was not
supported by substantial evidence. I am not persuaded that Plaintiffs are likely to succeed
in showing that a violation of the United States Constitution occurred based on the quality
of the evidence of dangerousness presented at the municipal hearing. In particular, a review
of 	the 	photographic 	evidence 	does 	not 	strongly 	suggest 	that 	the 	assessment 	or
determination of dangerousness lacked support in the record (or in common sense). 	For
instance, it does not appear likely that this property is a candidate for rehabilitation rather
than demolition or that rummaging through the remains would not present a hazard.
Plaintiffs have never seriously suggested, let alone demonstrated, otherwise. As the party
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seeking the preliminary injunction, Plaintiffs are expected to make a strong showing in this
regard. They have not done so. Plaintiff’s Emergency Request with its updated challenges
is DENIED.
D. 	P LAINTIFFS ’ M OTION FOR PRELIMINARY INJUNCTION
Plaintiff’s Motion for Preliminary Injunction (see ECF Nos. 15 & 22) is now under
advisement. 	The Town’s Opposition to the Motion has proved helpful to the Court’s
assessment of whether a preliminary injunction is required to preserve Plaintiffs’ access to
the personal property situated in or on the condemned premises. It is not.
The Town of Berwick Findings and Order (ECF No. 28-5) specify, among other
things, “If there are personal items in the building that you plan to remove before
demolition, 	you 	must 	schedule 	that 	in 	advance 	with 	the 	Town 	and 	you 	must 	be
accompanied by a representative from the Town in order to access the building and remove
said items.” In its Opposition, the Town has reiterated this point, writing, “The Town has
no current plans to demolish the residence on the Property. The Town intends to wait until
this lawsuit is resolved before taking any further steps toward demolition of the residence
on the Property.” 	Opposition at 8 (ECF No. 28). 	Furthermore, “The Town would not
object to the Plaintiffs accessing the Property at their own risk to retrieve personal property
and perform mitigation measures, provided that the owner or his authorized agent obtain
the appropriate permit from the Town before engaging in any activities to demolish the
residence on the Property or to rebuild or repair the residence on the Property.” 	Id. 	In
other words, Plaintiffs can arrange for access at their own risk to retrieve personal property.
However, they cannot perform demolition or reconstruction without the required permit.
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Given this state of affairs, I see no cause for a hearing or need for a preliminary injunction.
The Court will not dictate the process through which Plaintiffs and the Town
coordinate the timing and circumstances of the removal of Plaintiffs’ personal property
from the premises. 	The parties will need to work cooperatively and in good faith to
facilitate that basic process and it perplexes me that it should take an order from a federal
court to say so. They should be up to the task. As for Plaintiffs’ assertion that they should
have free access to the building without any municipal representative being present, this
preference does not find any basis in the United States Constitution. 	The municipal
representative can be present for safety purposes without invading Plaintiffs’ privacy.
Plaintiffs have also introduced into their motion papers the idea that this Court
should issue a decree stating that they have the right to live somewhere else on the three-
acre property. 	Reply at 9 (ECF No. 31). But Plaintiffs are not the owners of the property
and cannot represent the owner or owners’ interest here. 	Moreover, Plaintiffs have not
made a strong showing that it would be a violation of their own constitutional rights to
condition their ability to inhabit some other corner of the property on the owner’s
observation of municipal permitting requirements. 	More directly to the point, the
administration of that permitting process is not likely to be by judicial decree, or even
subject to judicial review by a federal district court judge in the first instance, rather than a
state court judge with statutory authority to resolve such controversies on a petition for
judicial review under Rule 80B of the Maine Rules of Civil Procedure.
In short, the need for injunctive relief related to personal property access or
temporary housing is unsupported by a strong showing. 	The Town is willing to coordinate
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access to the property for personal property retrieval purposes. In the final analysis, “trial
courts have wide discretion in making judgments regarding the appropriateness of such
relief.” Francisco Sánchez v. Esso Standard Oil Co., 572 F.3d 1, 14 (1st Cir. 2009).
Because Plaintiffs have failed to demonstrate that the protection of substantial federal
rights depends on an award of preliminary injunctive relief allowing unfettered access to
the burned-out residence or permitting alternative housing elsewhere on the property,
Plaintiff’s Motion for Preliminary Injunction is DENIED.
CONCLUSION
Plaintiffs Mary Downing and Darren Guay’s Motion for Leave to File (ECF No. 29)
is GRANTED. 	Plaintiffs’ Renewed Motion for Temporary Restraining Order and
Preliminary Injunction (ECF No. 15), Emergency Ex Parte Motion for Temporary
Restraining Order and Preliminary Injunction (ECF No. 22), and Emergency Request for
Immediate Ruling or Status Conference (ECF No. 30) are DENIED.
The Recommended Decision (ECF No. 19) concerning Rodney Downing’s status
as a party plaintiff is ACCEPTED AND ADOPTED and the claims of Rodney Downing
are HEREBY DISMISSED WITHOUT PREJUDICE.
S O ORDERED .
Dated this 23rd day of July, 2026.
/S / Lance E. Walker
CHIEF UNITED STATES D ISTRICT JUDGE
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