Magistrate Recommends Dismissal of 10 Counts and 8 Defendants in Maine Fire Case

A federal magistrate judge in Maine has recommended that ten counts of a lawsuit filed against members of the Tremont Fire Department be dismissed.

Robert and Judy Cousins, owners of Cap’n Nemo’s restaurant in Tremont, accused the firefighters of intentionally allowing their building to burn down in December, 2013. Their suit in US District Court in Maine was dismissed in 2015, only to be reinstated in September 2016 by the US 1st Circuit Court of Appeals.

U.S. Magistrate Judge John Nivison issued his ruling on January 30, 2017 concluding that ten of the Cousins’ counts should be dismissed, as should eight of the named defendants.

To capture the essence of the Cousins’ allegations and the court’s ruling consider the following from Judge Nivison’s recommendation:

  • Plaintiffs commenced the action on December 3, 2014, with a thirteen-page complaint against twenty defendants…
  • The gravamen of the original complaint was Defendants’ alleged failure of extinguish a fire on the property of Plaintiffs’ home and business, the former Cap’n Nemo’s Restaurant
  • Plaintiffs alleged Defendants exercised complete authority over efforts to combat the fire, yet intentionally permitted the building and adjacent property owned by Plaintiffs and their son to burn to a total loss.
  • the [trial] Court concluded Plaintiffs failed to assert an actionable claim against certain individuals, and dismissed the claims asserted against the individuals.
  • The Court dismissed the federal claims with prejudice, denied as futile Plaintiffs’ attempt to assert additional federal claims, and declined to exercise supplemental jurisdiction over any remaining state law claims.
  • On appeal, the First Circuit “affirmed in part and vacated and remanded in part.”
  • The First Circuit upheld the dismissal with prejudice of Plaintiffs’ First Amendment claims, but reversed the dismissal of Plaintiffs’ substantive due process and equal protection claims.
  • The First Circuit did not address the Court’s futility assessment of Plaintiffs’ attempt to allege ADA and RICO claims and, consequently, the Court’s assessment was undisturbed.
  • Following remand, at the Court’s direction, Plaintiffs filed a further amended complaint which is now the operative pleading in the case.
  • In the amended complaint, however, Plaintiffs did not simply assert the claims within the scope of the First Circuit’s decision. Instead, Plaintiffs significantly expanded the action to include sixteen counts, including some counts against new defendants.
  • In 2008 and 2009, Plaintiffs were involved in a dispute with the Town regarding the width of the Flat Iron Road, which abuts Plaintiffs’ property.
  • The matter eventually was resolved favorably to Plaintiffs.
  • Plaintiffs allege that with respect to the selectperson meetings regarding the issue, the MD Islander “printed disparaging false light,” and that the “disparaging statements were intended to induce others not to deal with” Plaintiffs.
  • Plaintiffs assert they heard rumors that should their premises ever catch fire, the fire department would let it burn, and that the Tremont Volunteer Fire Department “bragged around town that they would not extinguish a fire at [Plaintiffs’ property] as witnesses have and will verify.”
  • On December 4, 2013, a fire started on Plaintiffs’ property. When the Tremont Fire Department responded, Plaintiff Robert Cousins informed Defendant Keith Higgins that the fire was only the size of a campfire and he simply needed one more fire extinguisher to put it out.
  • Defendant Keith Higgins instructed Plaintiff to leave, and then proceeded to let the structure burn.
  • Plaintiffs allege that an unidentified junior firemen stole a computer from the vehicle of Plaintiffs’ son, and that Defendants allowed a fishing boat on the property to burn and chopped holes in it to prevent salvage.
  • Defendants Tetreault and Lindsley, also firemen, removed a business sign from Plaintiffs’ property and the sign has not been returned.
  • Count I – Retaliation
  • Plaintiffs allege they have been targeted and subjected to “the episode of governmental overbite”
  • Regardless of whether Defendants acted with discriminatory intent, Plaintiffs have failed to allege any facts that would support a finding that Defendants’ alleged conduct was the result of Plaintiffs’ opposition to an act or practice prohibited by the Maine Human Rights Act, or that Plaintiffs assisted or participated in any manner in a matter arising under the Act
  • Count III – Due Process Retaliation
  • Plaintiffs allege that “Defendants” have arbitrarily prevented Plaintiffs from rebuilding, including by issuing a stop work order and denying Plaintiffs the “Due Process of a speedy resolution.”
  • To the extent Plaintiffs seek to assert a claim against Defendants, Plaintiffs’ claim fails. Plaintiffs have not alleged any facts to suggest that Defendants are involved in the permitting process.
  • Count V Retaliation free speech
  • Plaintiffs attempt to assert a claim of retaliation based on their free speech activity.
  • Plaintiffs have not asserted any facts to suggest Defendants were involved in the road dispute.
  • Instead, Plaintiffs’ claim appears to be directed to the alleged conduct of the new defendants.
  • Plaintiffs’ claim against Defendants thus fails.
  • Count VI, VII and IX — § 1985, § 1986, ADA
  • Plaintiffs allege Defendants conspired to deprive Plaintiffs of equal protection [and the ADA]
  • The Court addressed the claims in its earlier order of dismissal and concluded that Plaintiffs had not alleged sufficient facts to generate a plausible inference of class-based discriminatory animus other than economic or commercial animus.
  • The Court, therefore, dismissed the claims with prejudice, and the First Circuit did not disturb that portion of the Court’s decision.
  • Plaintiffs, therefore, cannot reassert the claim.
  • Counts X and XIV Arson
  • Plaintiffs allege “terroristic arson” and cite 17-A M.R.S. § 804… and cite 17-A M.R.S. § 802(1).
  • Plaintiffs do not have standing to prosecute criminal charges against others.
  • Plaintiffs’ arson-related proposed criminal counts are thus futile and dismissal is appropriate.
  • Count XV Maine Tort Claims Act
  • In Count XV, Plaintiffs cite 14 M.R.S. § 8111, the section of the Maine Tort Claims Act that governs personal immunity for government employees.
  • Plaintiffs, however, do not assert any facts in Count XV. The Act does not create a substantive claim.
  • Count XV, therefore, does not assert a claim for relief.
  • Count XVI – Defamation
  • Plaintiffs assert a defamation claim. Plaintiffs’ claim is focused on the conduct of the MD Islander, Alan Baker, Earl Brecklin, and Mark Good, based on articles published in the MD Islander.
  • Plaintiffs, therefore, have not alleged any facts that would support a defamation claim against Defendants.
  • Based on the foregoing analysis, I recommend the Court:
    • Dismiss Count I (Maine Human Rights Act retaliation based on protected conduct);
    • Dismiss Count V (the rod of roadway claim);
    • Dismiss Counts VI, VII, and IX (class-based discrimination claims);
    • Dismiss Counts X and XIV (arson);
    • Dismiss Count XIII (FOAA);
    • Dismiss Count XV (Maine Tort Claims Act immunity provision);
    • Dismiss Count XVI (defamation) and dismiss MD Islander, Alan Baker, Earl Brecklin, and Mark Good without service;
    • Dismiss Wayne Patton and Thomas Chisolm without service;
    • Dismiss Debbi Nickerson and Dana Reed without service; and
    • Order service of the amended complaint on the Town of Tremont, Colton Sanborn, and Samuel Chisolm.

It appears six counts remain viable. The decision whether to adopt, modify or reject the magistrate’s recommendation will rest with US District Court Judge D. Brock Hornsby.

Here is a copy of the decision: Cousins v Tremont RULING

About Curt Varone

Curt Varone has over 40 years of fire service experience and 30 as a practicing attorney licensed in both Rhode Island and Maine. His background includes 29 years as a career firefighter in Providence (retiring as a Deputy Assistant Chief), as well as volunteer and paid on call experience. He is the author of two books: Legal Considerations for Fire and Emergency Services, (2006, 2nd ed. 2011, 3rd ed. 2014) and Fire Officer's Legal Handbook (2007), and is a contributing editor for Firehouse Magazine writing the Fire Law column.
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