Abdisamad v. City of Lewiston ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1852
ALI ABDISAMAD, personal representative of the estate of R.I.,
Plaintiff, Appellant,
v.
CITY OF LEWISTON; LEWISTON SCHOOL DEPARTMENT; MAINE DEPARTMENT
OF AGRICULTURE, CONSERVATION, AND FORESTRY,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Torruella, Lynch, and Kayatta,
Circuit Judges.
Verne Paradie on brief for appellant.
Edward R. Benjamin, Jr., Kasia S. Park, and Drummond Woodsum
on brief for appellees City of Lewiston and Lewiston School
Department.
Jason Anton, Assistant Attorney General, Christopher C. Taub,
Deputy Attorney General, and Aaron M. Frey, Attorney General, on
brief for appellee Maine Department of Agriculture, Conservation
& Forestry.
June 2, 2020
LYNCH, Circuit Judge. Ali Abdisamad brought federal and
state civil rights claims and state wrongful death claims against
the City of Lewiston, the Lewiston School Department (together
"the City Defendants"), and the Maine Department of Agriculture,
Conservation, and Forestry ("DACF"). These claims were based on
his seventh-grade son R.I.'s death while on a Lewiston school field
trip to a state park. The district court dismissed his claims.
Abdisamad has waived any challenge to the district court's
dismissal of his claims against DACF, and his allegations are
insufficient to state a constitutional tort claim against the
municipal City Defendants. We affirm.
I.
A. Facts
"We recite the facts as alleged in the plaintiff['s]
complaint, accepting all well-pleaded facts as true and drawing
all reasonable inferences in favor of the non-moving party."
Squeri v. Mount Ida Coll., 954 F.3d 56, 61 (1st Cir. 2020) (citing
Penate v. Hanchett, 944 F.3d 358, 362 (1st Cir. 2019)).
The amended complaint's description of the events giving
rise to this case is unusually spartan. On June 12, 2018, R.I.
took part in "a school-sponsored field trip to Range Pond State
Park in Poland, Maine for a group of seventh-graders." One-hundred
eleven students were accompanied on the trip by eleven chaperones,
all of whom were Lewiston School Department employees. The amended
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complaint does not allege whether any parents accompanied the field
trip.
When the students arrived at Range Pond, "the team leader
discussed ground rules with the students." DACF "only provided
one lifeguard at the beach area" and "did not offer or provide a
lifeguard or other representative to discuss safety rules within
the group."
As to the circumstances of R.I.'s death, the amended
complaint alleges only that, at some point after 11 a.m.,
a student reported to a chaperone that he
could not locate R.I. According to witnesses,
the lifeguard on duty appeared not to know
what to do in the situation and asked other
chaperones to get in the water to look for
R.I. After rescue personnel arrived, they
were able to locate R.I. R.I. was taken to a
local hospital where he was pronounced dead
after arrival.
(numbering omitted). The amended complaint's final allegation is
that the defendants' "failure . . . to follow their protocols[]
created a danger to R.I. from which they had a duty to protect
him."
B. Legal Proceedings
On April 25, 2019, Abdisamad filed suit in the U.S.
District Court for the District of Maine. His amended complaint
brought four claims: a due process violation against the City
Defendants, a due process violation against DACF, a wrongful death
claim against the City Defendants, and a wrongful death claim
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against DACF. The amended complaint did not specify under which
statutes, if any, each claim was advanced.
On May 31, 2019, DACF filed a motion to dismiss, which
Abdisamad opposed. The district court granted the motion.
Abdisamad v. City of Lewiston, No. 2:19-CV-00175-LEW, 2019 WL
2552194, at *3 (D. Me. June 20, 2019). It held that sovereign
immunity, as protected by the Eleventh Amendment, insulated DACF
from Abdisamad's claims in federal court. Id. at *2.
On June 24, 2019, the City of Lewiston filed a motion to
dismiss, in which the Lewiston School Department joined. Abdisamad
opposed the motion. The district court granted the motion.
Abdisamad v. City of Lewiston, No. 2:19-CV-00175-LEW, 2019 WL
3307039, at *4 (D. Me. July 23, 2019). The court construed
Abdisamad's due process violation claim against the City
Defendants as a substantive due process claim under 42 U.S.C.
§ 1983 and the Maine Civil Rights Act, Me. Rev. Stat. Ann. tit. 5,
§ 4682. Id. at *1. It held that Abdisamad's complaint included
"no factual allegations that reveal any conscience-shocking
conduct on the part of the City Defendants' team leader or the
other chaperones," required to state such a claim. Id. at *3. As
to the remaining wrongful death claim under state law, the court
declined to exercise supplemental jurisdiction "[g]iven that the
case is still in the pleading stage and the matter now consists of
a solitary state law claim." Id. at *4.
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On July 25, 2019, Abdisamad filed a motion for
reconsideration of the district court's rulings on the motions to
dismiss, which the City Defendants opposed. The motion, which did
not seek leave to amend the complaint again, offered further
allegations in support of Abdisamad's claims. Abdisamad alleged
that the defendants "did not require . . . students to display
swimming proficiency or get information from parents regarding the
same prior to allowing them to go in the water," "had no mechanism
in place to inform the students of dangerous drop offs in the roped
in swimming area or to warn the students that could not swim of
the dangers of being in the water," "made no efforts to ensure
that the lifeguard g[a]ve any safety instructions whatsoever to
the students" before they swam, "did not engage a buddy system,"
did not "assign[ students] to specific areas based on their
swimming abilities," "allowed students in the water with only one
apparently inept lifeguard" despite a Lewiston policy requiring
more than one lifeguard to be on duty during field trips, and "were
not . . . as vigilant as they should have been," causing them not
to notice R.I.'s absence immediately. The district court denied
the motion in a minute order without explanation.
On August 21, 2019, Abdisamad timely appealed from the
district court's rulings on the two motions to dismiss and the
motion for reconsideration.
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II.
"We review the grant of a motion to dismiss de novo."
Starr Surplus Lines Ins. Co. v. Mountaire Farms Inc., 920 F.3d
111, 114 (1st Cir. 2019). To overcome a motion to dismiss, the
plaintiff's complaint "must contain sufficient factual matter
. . . to state a claim to relief that is plausible on its face."
Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (alteration in
original) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))
(internal quotation marks omitted). "If the factual allegations
in the complaint are too meager, vague, or conclusory to remove
the possibility of relief from the realm of mere conjecture, the
complaint is open to dismissal." Barchock v. CVS Health Corp.,
886 F.3d 43, 48 (1st Cir. 2018) (quoting SEC v. Tambone, 597 F.3d
436, 442 (1st Cir. 2010)).
On appeal, Abdisamad argues that "[a]ppellees were not
entitled to dismissal of [a]ppellant's claims on the basis that
they have qualified immunity for their actions," although the
district court did not reach qualified immunity in either of its
dismissal orders. He does not dispute at any point in his briefing
the district court's conclusion that the Eleventh Amendment
protected DACF from suit in federal court. Abdisamad has thus
waived any such argument. See Pignons S.A. de Mecanique v.
Polaroid Corp., 701 F.2d 1, 3 (1st Cir. 1983). Because the
district court's dismissal of the claims against DACF rested
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exclusively on its sovereign immunity, we need not go further to
affirm the dismissal as to DACF.1
As to the City Defendants, Abdisamad argues that the
district court's dismissal "flies directly in the face of" this
court's decision in Irish v. Maine, 849 F.3d 521 (1st Cir. 2017).
He argues that, under the holding of Irish, his allegation that
the defendants "departed from their established protocol,
procedures and/or training and . . . created a danger to R.I. as
the result" is sufficient by itself to state a claim of denial of
substantive due process against the City Defendants. But neither
the law of substantive due process nor Irish say any such thing.
"In the realm of executive action, the Due Process Clause
'does not entail a body of constitutional law imposing liability
whenever someone cloaked with state authority causes harm,' nor
does it 'guarantee due care' by government officials." DePoutot
v. Raffaelly, 424 F.3d 112, 118 (1st Cir. 2005) (quoting Cty. of
Sacramento v. Lewis, 523 U.S. 833, 848-49 (1998)). To be
cognizable, a substantive due process claim under 42 U.S.C. § 1983
1 Abdisamad's factual allegations as to DACF also fail to
shock the conscience as required for a substantive due process
claim. See Martínez v. Cui, 608 F.3d 54, 65 (1st Cir. 2010). He
alleges that DACF, who provided the lifeguard at the beach area,
"did not offer or provide a lifeguard or other representative to
discuss safety rules within the group" and that the lifeguard
appeared not to know what to do when R.I. was missing. This
alleged conduct is not sufficiently "arbitrary and egregious" to
have "constitutional significance." Id.
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must allege facts "so extreme and egregious as to shock the
contemporary conscience." Id. Only after "show[ing] a
constitutionally significant level of culpability" may a plaintiff
"turn to establishing that a protected right was offended."
Martínez, 608 F.3d at 65.
Abdisamad argues that his claims fall into a "state-
created danger" exception discussed in Irish. But that is simply
not accurate. Our opinion in Irish observed that other "circuits
have recognized the existence of the state-created danger theory"
but that "[w]hile this circuit has discussed the possible existence
of the state-created danger theory, we have never found it
applicable to any specific set of facts." 849 F.3d at 526. We
also noted that "we 'may elect first to address whether the
governmental action at issue is sufficiently conscience shocking'
before considering the state-created danger element," id. (quoting
Rivera v. Rhode Island, 402 F.3d 27, 36 (1st Cir. 2005)), and that
"mere negligence would be insufficient to maintain a claim of
substantive due process violation," id. at 528. The record in
Irish contained no information about police protocol and training.
Given the specific facts alleged as to the individual defendants,
these were "relevant both to the substantive due process and
qualified immunity inquiries," id., and we vacated the dismissal
and remanded for discovery, id. at 529. Abdisamad argues that
Irish requires vacatur of the dismissal in this case to allow him
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to take discovery about what protocol and training might have been
violated in the events that gave rise to this lawsuit. Not so.
This case does not resemble Irish for many reasons, including that
Irish dealt with the liability of individual police officers, not
municipal liability, and that Abdisamad does not allege that the
City Defendants' policies caused R.I.'s death, but rather that
R.I.'s death resulted from the City Defendants' failure to follow
those policies.
"[A] different standard is used to determine liability
for individual and municipal defendants." Kelley v. LaForce, 288
F.3d 1, 6 (1st Cir. 2002). Individual government officials may be
sued "for federal constitutional or statutory violations under
§ 1983," though "they are generally shielded from civil damages
liability under the principle of qualified immunity." Id. But
"liability can be imposed on a local government only where that
government's policy or custom is responsible for causing the
constitutional violation or injury." Id. at 9 (citing Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)). Municipal
liability "cannot be based on respondeat superior but requires
independent liability based on an unconstitutional policy or
custom of the municipality itself." Dirrane v. Brookline Police
Dep't, 315 F.3d 65, 71 (1st Cir. 2002). Although municipalities'
policies "not authorized by written law" can nevertheless be
actionable, they must be "so permanent and well settled as to
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constitute a 'custom or usage' with the force of law." Monell,
436 U.S. at 691 (quoting Adickes v. S. H. Kress & Co., 398 U.S.
144, 167–68 (1970)). A "municipality's failure to train or
supervise . . . only becomes a basis for liability when 'action
pursuant to official municipal policy of some nature caused a
constitutional tort.'" Kennedy v. Town of Billerica, 617 F.3d
520, 531–32 (1st Cir. 2010) (emphasis omitted) (quoting Monell,
436 U.S. at 691).
Abdisamad's amended complaint does not plausibly allege
that a Lewiston policy or custom led to R.I.'s death. Its factual
allegations do not support a plausible inference that the City
Defendants' actions resulted from an unconstitutional policy or
custom. They include no facts whatsoever about a Lewiston policy
that would be unconstitutional and create municipal liability. To
the contrary, the amended complaint alleges that R.I.'s death
resulted from defendants' "failure . . . to follow their
protocols," rather than from defendants' actions that were
consistent with a Lewiston policy or custom. That allegation
cannot serve as the basis for municipal liability and in fact
precludes such liability. See Dirrane, 315 F.3d at 71 (explaining
that a constitutional tort claim against a municipality "requires
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independent liability based on an unconstitutional policy or
custom of the municipality itself").2
Abdisamad does not argue that the district court's
decision not to exercise supplemental jurisdiction over his
wrongful death claim against the City Defendants was error. That
argument, too, is waived. Pignons S.A. de Mecanique, 701 F.2d at
3.3
III.
Affirmed.
2 Even if construed as an action under the Maine Civil
Rights Act, Me. Rev. Stat. Ann. tit. 5, § 4682, Abdisamad's claim
fails because "the disposition of a 42 U.S.C. § 1983 claim also
controls a claim under the [Maine Civil Rights Act]." Berube v.
Conley, 506 F.3d 79, 85 (1st Cir. 2007).
3 At any rate, "[w]e review a district court's decision
regarding the exercise of supplemental jurisdiction for abuse of
discretion." Allstate Interiors & Exteriors, Inc. v. Stonestreet
Constr., LLC, 730 F.3d 67, 72 (1st Cir. 2013). Given that "the
unfavorable disposition of a plaintiff's federal claims at the
early stages of a suit, well before the commencement of trial,
will trigger the dismissal without prejudice of any supplemental
state-law claims," we cannot say that the district court abused
its discretion. Rodríguez v. Doral Mortg. Corp., 57 F.3d 1168,
1177 (1st Cir. 1995).
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