author: CYR, Chief Judge.

text:
    Jong Hee SMALL, Personal Representative of the Estate of Delbert Small, Plaintiff, v. The INHABITANTS OF the CITY OF BELFAST and James Murphy, Defendants.
    No. Civ. 80-1125-B.
    United States District Court, D. Maine.
    Oct. 2, 1985.

      Harold L. Lichten, Stephen P. Sunenblick, Portland, Me., for plaintiff.
    Francis C. Marsano, Belfast, Me., Peter J. DeTroy III, James D. Poliquin, Portland, Me., for defendants.
   MEMORANDUM DECISION AND ORDER ACCEPTING MAGISTRATE’S RECOMMENDED DECISION

CYR, Chief Judge.

I. BACKGROUND

On August 25, 1980, plaintiff’s testate, Delbert Small (Small), filed the original complaint in this section 1983 action alleging that he was discharged from his position as security guard at the Waldo County General Hospital as a result of a communication from defendant James Murphy, City Manager of Belfast, Maine, informing the hospital that Small had been found in possession of a stolen snowplow and that Small’s appointment as a special police officer would be revoked. The court’s Memorandum Opinion and Order of September 23, 1982, see Small v. Inhabitants of Belfast, 547 F.Supp. 761 (D.Me.1982), details the allegations of the original complaint.

In its order of September 23, 1982, the court dismissed the original complaint on the basis that it was not filed within two years of the accrual of the cause of action. The court concluded that the section 1983 claim, though phrased in “due process” terms, essentially was predicated on the alleged defamatory communication by the city manager, which resulted in Small’s discharge by the hospital, a private employer, and injured Small’s reputation in the community. Accordingly, the court held that the most analogous state law cause of action would be defamation and that the statute of limitations to be “borrowed” would be Me.Rev.Stat.Ann. tit. 14, § 753 (1964), the two-year limitations period applicable to most intentional torts affecting personal interests, including slander and libel. The court rejected plaintiff’s argument that the residuary six-year limitations period of Me. Rev.Stat.Ann. tit. 14, § 752 (1964) applies to the claim by reason of its characterization as a denial of due process.

On October 7, 1982 plaintiff moved to amend the complaint. On February 2,1983 the court granted the motion to amend in order to permit plaintiff to assert a constitutional claim for deprivation of a property interest without due process of law, consisting of the city manager’s alleged revocation of Small’s status as a special police officer. The court denied the motion to amend the complaint insofar as it sought to assert a “due process” claim for injury to Small’s reputation, resulting from the alleged defamatory statements of the city manager.

An amended complaint was filed on February 9, 1983, alleging that Small had a property interest in his position as special police officer for the City of Belfast and that his status as a special police officer was revoked without due process. It is alleged that the denial of due process resulted in the loss of Small’s position at the Waldo County Hospital, impeded him in the search for other employment and damaged his reputation. Plaintiff also asserts pendent state statutory and constitutional claims.

On April 15, 1983, defendants moved to dismiss and, alternatively, for summary judgment, asserting that the amended complaint failed to state any claim not barred by the applicable statute of limitations. Defendants also assert that the pleadings, affidavits and depositions establish the absence of any genuine issue of material fact, thus entitling defendants to judgment as a matter of law. Following a hearing, the United States Magistrate issued a recommended decision on January 17, 1984, granting the motions to dismiss, as well as summary judgment for the defendants, on the basis that the two-year limitations period of the Maine Tort Claims Act, Me.Rev. StatAnn. tit. 14, § 8110 (1977), barred plaintiffs section 1983 claim. The Magistrate rejected defendants’ contention that the 30-day limitations period of Me.R.Civ.P. 80B should be borrowed for application to a section 1983 claim. Defendants’ other contentions, relating to the borrowing of the limitations period applicable to defamation claims, Me.Rev.Stat.Ann. tit. 14, § 753, and the period applicable to claims under the Maine Human Rights Act, Me.Rev.Stat. Ann. tit. 5, § 4613(2)(C) (Supp.1984-85), were not reached by the Magistrate. Nor did the Magistrate consider defendants’ arguments (1) that there remains no genuine issue as to the fact that Small’s special police officer status was never revoked by defendants, and (2) that Small had no constitutionally cognizable property interest in his status as a special police officer because the appointment gave rise to no employment relationship between Small and the city, but merely authorized Small to exercise certain police powers in the course of his private employment with the hospital. Plaintiff objected to the Magistrate’s recommended decision on January 25, 1984, arguing that the residuary six-year limitations period of section 752, rather than the two-year limitations period of the Maine Tort Claims Act, applies to the section 1983 claim alleged in the amended complaint.

Subsequent to the Magistrate’s recommended decision, the Supreme Court, in Burnett v. Grattan, — U.S. -, 104 S.Ct. 2924, 82 L.Ed.2d 36 (U.S.1984), issued a decision which buttressed the Magistrate’s conclusion that the 30-day limitations period of Me.R.Civ.P. 80B would not be appropriate for application to plaintiff’s section 1983 due process claim. Dictum in Burnett casts doubt on the propriety of applying Maine’s two-year tort limitations period to this section 1983 claim as recommended by the Magistrate. — U.S. at -n. 18, 104 S.Ct. at 2932 n. 18.

In another significant development following the Magistrate’s recommended decision, the Supreme Court, on October 2, 1984 granted certiorari, — U.S.-, 105 S.Ct. 79, 83 L.Ed.2d 28, to review a decision by the Tenth Circuit, Garcia v. Wilson, 731 F.2d 640 (10th Cir.1984), which examined the divergent approaches among the courts of appeals and chose to apply a single state limitations period to all section 1983 claims.

On April 17, 1985 the Supreme Court issued its decision in Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (U.S. 1985), and the parties briefed the issue of the impact of Wilson on the case at bar.

II. STATUTE OF LIMITATIONS

A. Wilson v. Garcia

The Magistrate’s recommendation that the Maine Tort Claims Act two-year limitations period should govern the present action, although supported by some authority at the time of his decision, is contrary to the direction provided in the recent Supreme Court decisions in Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (U.S.1985), and Burnett v. Grattan, — U.S.-, 104 S.Ct. 2924, 82 L.Ed.2d 36 (1984). Burnett and Wilson make it clear that the two-year limitations period of the Maine Tort Claims Act does not apply to plaintiff’s section 1983 claim.

In Burnett, the Court noted with approval the following statement from Pauk v. Board of Trustees, 654 F.2d 856 (2d Cir. 1984), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982).

“It would be anomalous for a federal court to apply a state policy restricting remedies against public officials to a federal statute that is designed to augment remedies against those officials, especially a federal statute that affords remedies for the protection of constitutional rights. [654 F.2d at 862.]”

— U.S. at-n. 18, 104 S.Ct. at 2932 n. 18.

In Wilson, the Court rejected the view of the New Mexico Supreme Court, De Vargas v. New Mexico, 97 N.M. 563, 642 P.2d 166 (1982), that the New Mexico Tort Claims Act supplied the appropriate limitations period for section 1983 actions, concluding instead that “Congress would not have characterized § 1983 as providing a cause of action analogous to state remedies for wrongs committed by public officials.” — U.S. at-, 105 S.Ct. at 1949.

Wilson also rejects the “settled practice” of most federal courts of appeals and state courts, which have looked to the facts underlying the particular section 1983 claim for an appropriate state law analog. See Wilson v. Garcia, — U.S. at -, 105 S.Ct. at 1950-52. (O’Connor, J., dissenting). Wilson holds that all section 1983 actions are to be characterized, for limitations purposes, as “tort action[s] for the recovery of damages for personal injuries,” — U.S. at-, 105 S.Ct. at 1949, and are to be governed by the state’s “one most appropriate statute of limitations for all § 1983 claims.” Id. Though in part fashioned with a view to simplifying the task of identifying the appropriate statute of limitations for section 1983 actions, id. at-, 105 S.Ct. at 1947, Wilson remains difficult to apply in jurisdictions, such as Maine, which have more than one limitations period for tort actions for the recovery of damages for personal injuries.

Section 753 of Me.Rev.Stat.Ann. tit. 14 (1964) prescribes a two-year limitations period for “[a]ctions for assault and battery, and for false imprisonment, slander, libel and malpractice of physicians and all others engaged in the healing art____” The six-year residuary limitations period of Me. Rev.Stat.Ann. tit. 14, § 752 (1964), while not mentioning “personal injury” claims, applies by default to all other such claims, except for those instituted against certain professionals.

Following the issuance of its en banc decision in Garcia v. Wilson, 731 F.2d 640, but prior to the Supreme Court’s affirmance, the Tenth Circuit had occasion to apply its own holding that “every section 1983 claim is in essence an action for injury to personal rights,” 731 F.2d at 651, for purposes of selecting the appropriate state limitations period. In McKay v. Hammock, 730 F.2d 1369 (10th Cir.1984), the court was faced with a Colorado statutory scheme with two “tort” limitations periods: a one-year period for “assault and battery, false imprisonment, slander, and libel,” Colo.Rev.Stat. § 13-80-102 (1973), and a six-year period for “actions of assumpsit, or on the case founded on any contract or liability, express or implied,” Colo.Rev.Stat. § 13-80-110 (1973).

The Tenth Circuit concluded that Colorado’s common law distinction between trespass actions and actions on the case rendered both the one-year and six-year limitations periods “irrelevant” and inapplicable to a section 1983 claim for unlawful arrest. The court declined to borrow either of these periods, but instead chose Colorado’s three-year residuary period, CololRev.Stat. § 13-80-108(l)(b).

In Mismash v. Murray City, 730 F.2d 1366 (10th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2111, 85 L.Ed.2d 476 (U.S. 1985), involving a claim of excessive force during an arrest, the court found no Utah statute of limitations “expressly applicable to actions for injury to the rights of others,” and, therefore, applied Utah’s four-year residuary period, Utah Code Ann. § 78-12-25(2) (1953), v/hich governs personal torts except for “libel, slander, assault, battery, false imprisonment or seduction,” the latter being governed by the one-year period in Utah Code Ann. § 78-12-29(4) (1953). 730 F.2d at 1367. The court provided no explanation for its choice between these two “personal torts” limitations periods.

In Hamilton v. City of Overland Park, Kansas, 730 F.2d 613 (10th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 2111, 85 L.Ed.2d 476 (U.S.1985), involving a claim for unlawful arrest, the court applied the Kansas two-year limitations period for “action[s] for injury to the rights of another, not arising on contract, and not herein enumerated,” Kan.Stat.Ann. § 60-513(a)(4) (1976), finding that this statute fit nicely with its own holding in Garcia v. Wilson, 731 F.2d 640, that all section 1983 claims “should be characterized as actions for injury to the rights of another.” 730 F.2d at 614. The statute of limitations selected by the district court, Kan.Stat.Ann. § 60-514(2) (1976) [one-year limitations period for “[a]n action for assault, battery, malicious prosecution, or false imprisonment”], was rejected by the Tenth Circuit without comment, notwithstanding that such torts also constitute injuries to the rights of another.

Thus, in Mismash and Hamilton the Tenth Circuit adopted limitations periods applicable principally to negligence personal injury actions. The result in McKay, which rejected both Colorado limitations periods applicable to personal injury actions and chose instead the Colorado residuary limitations period, is somewhat difficult to reconcile either with Mismash or Hamilton or with the Tenth Circuit’s holding in Wilson. However, inasmuch as McKay’s complaint was timely filed under the three-year residuary period, the court’s rejection of the six-year period for actions “on the case” does not appear to have been necessary to its decision that the complaint was timely filed.

Since the Supreme Court decision in Wilson v. Garcia, supra, the Eleventh Circuit has analyzed Alabama’s statutory scheme with a view to determining the appropriate limitations period for application to section 1983 actions. Jones v. Preuit & Mauldin, 763 F.2d 1250 (11th Cir.1985). Wilson presented the Jones court with the task of choosing between two Alabama limitations periods applicable to different types of tort claims for damages for “personal injuries,” id. at 1253. Alabama law prescribes a six-year period for actions “for any trespass to person or liberty, such as false imprisonment or assault and battery,” Ala. Code § 6-2-34(1) (1975), and a one-year period “for any injury to the person or rights of another not arising from contract and not specifically enumerated in this section.” Ala.Code § 6-2-39(a)(5) (1975). The six-year period applies to all Alabama “trespass” actions, whereas the one-year period applies to actions for “trespass on the case.” Id. at 1254. Unlike McKay, which found this distinction to be “irrelevant” for section 1983 purposes, the Jones court carefully analyzed the “essential nature” of a section 1983 claim “by searching the legislative history of the statute and isolating the particular type of wrong that was most paradigmatic, the one category of wrongs that legislators intended first and foremost to address,” id. at 1255. The Eleventh Circuit concluded that

[Pjersonal injuries sounding in trespass make up the most significant subset of claims within Section 1983. The paradigmatic personal injuries covered by the statute, those that motivated the Congress to take action, were acts of intentional and direct violence on the part of the Ku Klux Klan____
The extensive legislative history demonstrates that members of the 42d Congress considered direct acts of violence against black citizens to be the paradigmatic wrong addressed by the new statute. Hence, the essential nature of a Section 1983 claim fits the description of trespass under Alabama law. We conclude on the basis of Congressional intent and the Supreme Court’s opinion in Wilson v. Garcia, supra, that a Section 1983 claim should be characterized as a personal injury action along the lines of a trespass.

Id. at 1255-56. Thus, the court held that Alabama’s six-year limitations period for “trespass” actions would be borrowed in section 1983 actions.

In prescribing limitations periods Maine law does not explicitly distinguish between “trespass” actions and “actions on the case.” But Me.Rev.Stat.Arm. tit. 14, § 753 does distinguish most intentional torts for invasion of personal rights, including assault, battery, false imprisonment, libel and slander, from other personal injury actions. Certain other intentional torts, such as invasion of privacy and intentional infliction of emotional distress, were not recognized by Maine law until after the enactment of the two-year limitations period in section 753. See Estate of Berthiaume v. Pratt, 365 A.2d 792 (Me.1976) [recognizing tort of invasion of privacy]; Vicnire v. Ford Motor Credit Co., 401 A.2d 148, 154 (Me.1979) [recognizing tort of intentional infliction of emotional distress]; Wallace v. Coca-Cola Bottling Plants, Inc., 269 A.2d 117 (1970) [recognizing that plaintiff may recover for negligent infliction of emotional distress without physical injury, thus foreshadowing Vicnire ]. While it is uncertain whether Maine courts would apply the two-year limitations period in section 753, rather than the six-year residuary limitations period of section 752, to these newer intentional torts, but cf. Gashgai v. Liebowitz, 703 F.2d 10 (1st Cir.1983) [section 753 would apply to “false light” invasion of privacy although this newer tort is not listed in that section], the Maine statutory scheme, distinguishing the then-recognized intentional torts infringing on personal rights from other torts, is closely analogous to the Alabama law dichotomy between “trespass” and “trespass on the case; ” indeed, the distinction between intentional torts and negligence represents the modern version of the now-“antiquated” trespass-case dichotomy. See W. Prosser, Torts § 7 (4th ed. 1971).

Assault, battery, false imprisonment, slander and libel are intentional torts which directly infringe upon personal rights; as such, they are more akin to “the paradigmatic wrong” intended to be addressed by the 1871 congressional enactment of section 1983 — “direct acts of violence against black citizens,” Jones v. Preuit & Mauldin, 763 F.2d at 1256, than are the other, principally unintentional, personal injury torts which, by default, are governed by Maine’s six-year limitations period. Therefore, section 1983 claims arising in Maine are more appropriately governed by the two-year limitations period in section 753. See id.

This conclusion is at odds with the apparent view of the Tenth Circuit in cases decided prior to the Supreme Court decision in Wilson v. Garcia, supra. However, as previously noted, see text supra at 7, those cases were decided by the Tenth Circuit without benefit of the Supreme Court's discussion in Wilson and without any apparent recognition of the need in some jurisdictions, like Maine, to chose between two or more limitations periods applicable to tort actions for damages for personal injuries. The Tenth Circuit’s selection of the residuary limitations period in Mismash v. Murray City, supra, rather than the limitations period applicable to specific personal injury torts similar to the personal injury torts governed by the Maine limitations period found in section 753, was undertaken with no explicit consideration of the historical character of section 1983 claims.

Interestingly, while affirming the Tenth Circuit in Wilson, the Supreme Court followed a somewhat different course in reaching its conclusion as to the proper characterization of section 1983 claims. The Supreme Court examined the “historical catalyst for the Civil Rights Act of 1871,” — U.S. at-, 105 S.Ct. at 1949. The Tenth Circuit focused on the essential nature of a section 1983 claim as asserting a violation of “personal rights.” 731 F.2d at 651. Although this difference in analysis is inconsequential where a single state limitations period applies to “tort actions for the recovery of damages for personal injuries,” where there is more than one such state limitations period it seems more consistent with the Wilson theme to look to the “historical catalyst” for section 1983, as did the Eleventh Circuit in Jones, not only to identify the essential character of section 1983, but also to select the one most appropriate personal injury tort limitations period.

B. Retroactivity

Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971), prescribes the framework for analysis of the retrospective application of statutes of limitations:

First, the decision to be applied nonretroactively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, it has been stressed that “we must ... weigh the merits and demerits in each case by looking to the prior history of the rule in question, its purpose and effect, and whether retrospective operation will further or retard its operation.” Finally, we have weighed the inequity imposed by retroactive application, for “[wjhere a decision of this Court could produce substantial inequitable results if applied retroactively, there is ample basis in our cases for avoiding the ‘injustice or hardship’ by a holding of nonretroactivity.”

Id. at 106-07, 92 S.Ct. at 355 (citations omitted).

It is clear that Wilson v. Garcia established a new principle of law by requiring that federal courts select one state statute of limitations for all section 1983 claims and that this result was not “foreshadowed” by earlier Supreme Court decisions. However, in order to determine whether Wilson overruled “clear past precedent on which the litigants may have relied,” the court must examine the status of the law prior to Wilson, particularly prior to the time plaintiff filed this suit.

At the time the present action was commenced on August 25, 1980, Supreme Court precedent held that for closely related claims under 42 U.S.C. § 1981, the borrowing statute (42 U.S.C. § 1988) required application of “the most appropriate” limitations period provided by state law, Johnson v. Railway Express Agency, 421 U.S. 454, 462, 95 S.Ct. 1716, 1721, 44 L.Ed.2d 295 (1975), and that for purposes of section 1983 the Court would continue its historical practice of filling any federal statute of limitations void by borrowing “the state law of limitations governing an analogous cause of action,” Board of Regents v. Tomanio, 446 U.S. 478, 483-84, 100 S.Ct. 1790, 1794-95, 64 L.Ed.2d 440 (1980). The First Circuit, in selecting state limitations periods for application to section 1983 actions based on infringements of constitutionally protected nonproperty interests, had borrowed limitations periods applicable to tort actions or to actions for injuries to the person. See Walden, III, Inc. v. State of Rhode Island, 576 F.2d 945 (1st Cir. 1978) [action for warrantless search and seizure, improper arrest, and assault by state officials, controlled by three-year limitations period governing actions for injuries, including non-physical injuries, to the person, rather than general six-year period applicable to all other civil actions]; Graffals Gonzalez v. Garcia Santiago, 550 F.2d 687 (1st Cir.1977) (per curiam) [first amendment violations resulting in discharge from public employment actionable within Puerto Rico’s one-year tort limitations period].

The District of Maine had applied the two-year limitations period of the Maine Human Rights Act, rather than Maine’s six-year residuary period, to a section 1983 action alleging sex discrimination. Curran v. Portland Superintending School Committee, 435 F.Supp. 1063, 1080 (D.Me.1977) (Gignoux, C.J.). In a later unpublished decision, Chief Judge Gignoux concluded, without elaboration, that Curran called for the six-year residuary limitations period to be applied to a section 1983 claim that a contract teacher had been denied due process in her dismissal because defendants failed to comply with statutory procedures for the dismissal of contract teachers. Dow v. Board of Directors for S.A.D. No. 5, Civ. No. 76-14 SD (D.Me. August 9, 1977).

The amended complaint asserts that Small had a property interest in his position as special police officer and that he was “terminated” from that position without due process. The facts and injury alleged in the amended complaint appear to focus on the reputational damage caused by an alleged defamatory communication by the city manager to Small’s private employer, rather than on a wrongful termination of his special officer appointment resulting in the loss of wages he would otherwise have received from his private employer. However, for present purposes the court will treat the amended complaint as essentially asserting a denial of due process, arising out of a deprivation of plaintiff’s constitutionally protected property interest in the special police officer appointment, similar to the employment dismissal in Dow.

In 1977 the First Circuit held that an employee dismissal challenged on first amendment grounds was subject to Puerto Rico’s “tort” limitations period rather than its contract limitations period. Graffals Gonzalez v. Garcia Santiago, supra. However, unlike Puerto Rico, Maine has two statutes of limitations governing “torts,” one of which applies to contract actions as well.

Thus, unlike plaintiff’s original claim of deprivation of a liberty interest in one’s reputation, for which Maine provided a tort analog (defamation), plaintiff’s present claim of deprivation of a property interest in his special police officer appointment had no state law tort analog such as would have indicated that the two-year limitations period of section 753 would be borrowed for application to such a claim; nor did First Circuit precedent point to the borrowing of the two-year limitations period.

Two cases have considered whether the Supreme Court decision in Wilson v. Garcia should be applied retroactively. In Smith v. City of Pittsburgh, 764 F.2d 188 (3d Cir.1985), the Third Circuit held that the Wilson analysis required the application of Pennsylvania’s two-year limitations period (governing “injuries to the person ... caused by wrongful act or neglect,” 42 Pa.Cons.Stat.Ann. § 5524) to plaintiff’s claim for discharge without due process. In considering whether or not to apply the two-year period retroactively to bar plaintiff’s claim, the Smith court examined the state of the law at the time the suit was filed, and found that some of the federal district courts in Pennsylvania had applied the two-year limitations period to section 1983 claims, while others had applied a six-month limitations period. Thus, the court concluded that these decisions “should have put Smith on notice that it would not have been reasonable to wait more than two years ... to file suit.” Id. at 195.

In Winston v. Sanders, 610 F.Supp. 176 (C.D.Ill.1985), the court decided that Wilson should not be applied retroactively to bar a section 1983 claim. At the time the Winston complaint was filed, controlling Seventh Circuit precedent, Beard v. Robinson, 563 F.2d 331 (7th Cir.1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978), held that all civil rights claims in Illinois were to be commenced within the five-year residuary period, rather than the two-year “tort” limitations period. The Winston court was of the opinion that plaintiff reasonably relied upon Beard in failing to institute the action within Illinois’ two-year period as subsequently mandated by Wilson.

At the time this action was commenced there was no authority, either in this district or in the First Circuit, which would have indicated that Maine’s two-year limitations period for “assault, battery, and for false imprisonment, slander, libel and malpractice of physicians and all others engaged in the healing act ... ” would apply to plaintiff’s section 1983 claim for deprivation of a property interest in a public position without due process (a claim with no apparent state law tort analog). Moreover, the unpublished Dow decision of this court, in 1977, would indicate that Maine’s six-year residuary period would be applied to such a claim. Accordingly, consistent with the analysis in both Smith and Winston, the court concludes that plaintiff was not on notice, prior to the time the complaint was filed, that it would be unreasonable to wait more than two years to bring the present claim.

The remainder of the Chevron retroactivity analysis also counsels against the retroactive application of Wilson to plaintiff’s suit.

The decision in Wilson v. Garcia had several purposes. Most important, it was designed to further “federal interests in uniformity, certainty, and the minimization of unnecessary litigation.” 105 S.Ct. at 1947 [53 U.S.L.W. at 4485]. The choice of the personal injury limitation over other possible choices also minimized the risks that states would provide a discriminatorily short period of limitations or one inadequate to serve the federal interests of § 1983. Id. at 1949 [53 U.S.L.W. 4486].

Smith v. City of Pittsburgh, 764 F.2d at 195-96. These purposes will not be “retarded” by the nonapplication of Wilson to the present suit.

Finally, in view of the fact that Wilson represents a substantial departure from the earlier case-by-case approach to choosing the appropriate section 1983 limitations period and that retrospective application of Wilson would result in barring plaintiffs claim, “the equities very strongly lean in favor of the Plaintiff and against her removal from the courthouse by a retroactive application of Wilson v. Garcia,” Winston v. Sanders, 610 F.Supp. at 179.

III. DUE PROCESS CLAIM

Regardless of the appropriate limitations period, plaintiffs due process claim cannot withstand defendants’ motion for summary judgment unless Small had a constitutionally protected property interest in his status as a special police officer which was revoked without due process.

A. Property Interest

In support of her claim that Small had a property interest in his status as special police officer, plaintiff points to certain state, statutes, as well as the city personnel code.

It is well settled that due process protections apply “only when state action deprives a person of a liberty or property interest protected by the Fourteenth Amendment.” Daley v. Town of New Durham, 733 F.2d 4, 7 (1st Cir.1984). A property right in “a state position or state employment can be created by state law ... if state (or municipal) law provides ‘that a particular employment relationship will continue unless certain defined events occur’ or affirmatively recognizes ‘an entitlement to particular job conditions.’ ” Fredericks v. Vartanian, 694 F.2d 891, 892 (1st Cir.1982) (citations omitted), quoting Confederation of Police v. City of Chicago, 547 F.2d 375, 376 (7th Cir.1977).

The appointment of “[s]pecial police officers of limited jurisdiction for a term of not more than one year” is authorized by Me. Rev.Stat.Ann. tit. 30, § 2362 (Supp.1984-85). The amended complaint alleges that Small was first appointed a special police officer in April 1974 at the request of the hospital, which desired to employ Small as a security guard. Amended Complaint, 1111. Small’s appointment as special officer restricted the exercise of his special police powers to the confines of the hospital premises. Small was reappointed for one year on July 21, 1975, again as a special police officer for the hospital. Amended Complaint, 1113. Thus, Small’s status as a special police officer was linked to his continued employment as a hospital security guard.

Plaintiff alleges that, “[a]s a matter of Defendants’ policy, the appointment of police officers was automatically renewed by Defendants on an annual basis and would only be terminated for cause as contained in the Personnel rules.” Amended Complaint, 1113. Inasmuch as each appointment term of a special police officer is limited by statute to “not more than one year,” such a policy of automatic reappointment, insofar as it is supposed to constitute an entitlement to the status of special police officer beyond the one-year term then in force, would be contrary to the express mandate of the state statute.

Plaintiff has presented no evidence that there existed any such policy of automatic reappointment on the part of the City of Belfast. Small’s own reappointment in July 1975, after only one prior term, does not constitute evidence of such a policy. Where defendants have moved for summary judgment it is not sufficient for plaintiff to rest on the conclusory allegations of the complaint. Fed.R.Civ.P. 56(e); MicroSparc, Inc. v. Weinstock, 758 F.2d 790, 792 (1st Cir.1985). Thus, assuming that Small was entitled to a continuation of his status of special police officer during the period of his appointment, which ended on July 21, 1976, there is no evidence that he had any legitimate expectation of reappointment.

In order to determine whether Small had a legitimate expectation, founded in law, that his special police officer appointment would not be revoked prior to its automatic expiration, it is necessary to examine relevant provisions of the city personnel code and relevant Maine statutes.

Section 18 of the city personnel code prescribes certain procedures governing “disciplinary action against any municipal employee,” including “permanent dismissal from employment with the City of Belfast.” Section 3(a) of the personnel code expressly restricts its application to “persons in the employ of the City.” Small was not employed by the city as a special police officer. Rather, he was employed by the hospital, a private institution. His special officer appointment did not confer any right to employment by the city such as would render the city personnel code controlling. Compare Canning v. Butcher, 582 F.Supp. 1497 (D.Conn.1984) [city charter providing for removal for cause of “any officer or employee in its department that it has power to appoint” {emphasis added) applies to supernumerary (part-time reserve) police officers].

Next, plaintiff argues that Me.Rev.Stat. Ann. tit. 30, § 2361, which provides that “police officers ... may be removed for cause after notice and hearing,” applies to special police officers. But plaintiffs interpretation is belied by the structure of Sub-chapter III-A of Title 30, which contains three principal sections: (1) the aforementioned section 2361, which pertains to “police officers”; (2) section 2362, which pertains to “special police officers”; and (3) section 2363, which pertains to “constables.”

Although it is clear that section 2361 confers a constitutionally protected property interest in the position of “police officer,” see Barber v. Inhabitants of Town of Belfast, 460 A.2d 1001 (Me. 1983), the position of special police officer created by the Legislature in 1973, 1973 Me.Laws ch. 135, is dealt with in a separate section, which itself contains no such restrictions on removal.

Section 2362 reads, in pertinent part:

Special police officers of limited jurisdiction may be appointed for a term of not more than one year and as provided in section 2361, subsection 1 and shall have all powers of a police officer, except as specifically provided by municipal ordinance or the certificate of appointment. {Emphasis added.)

Stripped from its context the meaning and significance of the phrase — “and as provided in section 2361, subsection 1” — does become somewhat unclear. But subsection 2361(1) contains two sentences: the first authorizes municipal officers, except as otherwise provided by municipal ordinance, to appoint and fix the compensation of police officers for a definite term; the second sentence permits removal “for cause after notice and hearing.” Section 2362 specifically states that special police officers may be appointed “as provided in section 2361, subsection 1.” It is the first sentence of subsection 2361(1) which governs the appointment of police officers, not the second sentence, which deals with the removal of police officers. Moreover, the nature of the position of “special police officer of limited jurisdiction,” which permits employees of private parties to exercise police powers within the scope of their private employment, suggests that their “removal” is a matter for the private employer and that such removals are not constrained by the second sentence of section 2361(1) limiting the power of municipal officers to “re•move” police officers. Plaintiff does not claim that the defendants removed Small from a city position, but that the defendants revoked his appointment as special police officer for the hospital. The court concludes that the removal provision of section 2361(1) does not apply to Small’s special officer appointment so as to confer a constitutionally protected property interest in that office.

Another Maine statute pointed to by plaintiff, Me.Rev.Stat.Ann. tit. 30, § 2256 (1964), is similarly unavailing. At all relevant times, that statute provided:

§ 2256. Municipal functions
In addition to those offices and departments required by general law, a municipality may provide, by ordinance, for the performance of all necessary municipal functions. Except where specifically provided by statute or municipal ordinance, the municipal officers shall appoint all town officials and employees required by general law or by municipal ordinance and may remove such officials and employees for cause, after notice and hearing. Unless otherwise specified, the term of all municipal officials shall be one year. {Emphasis added.)

Thus, the statute by its own terms applies only to the appointment and removal of “town officials and employees required by general law or by municipal ordinance.” The appointment of special police officers is not “required” by law or ordinance. Rather, the relevant statutes provide that special police officers, like police officers, may be appointed. Me.Rev.Stat.Ann. tit. 30, §§ 2361-2362.

In short, neither the statutes nor the municipal ordinance provisions pointed to by plaintiff establish a legitimate claim of entitlement to the continuation of Mr. Small’s status as special police officer. Nor has plaintiff offered evidence of “mutually explicit understandings” or common practices and agreements derived from Mr. Small’s relationship with the city so as to create a legitimate expectation of the continuation of his status. See Perry v. Sindermann, 408 U.S. 593, 600-603, 92 S.Ct. 2694, 2699-2700, 33 L.Ed.2d 570 (1972).

B. Revocation of Appointment

As yet another ground for summary judgment, defendants contend that there is no genuine dispute as to the fact that Small’s special officer appointment was never revoked by the defendants. In support of this contention defendants present the May 16, 1983 affidavit of the defendant city manager, indicating that he took no action, nor is he aware of any action taken by others, to formally revoke Small’s appointment. The May 23, 1983 affidavit of the city clerk, stating that her examination of city records did not disclose any record of such a revocation, supports the city manager’s claim that no formal revocation took place.

Plaintiff’s own submissions do not indicate the contrary. According to the June 28, 1978 affidavit of the hospital administrator, Arthur Upton, the city manager called Upton and

advised me that he would ... be revoking Mr. Small’s appointment as a special officer for the Hospital. He asked that in order for him to pursue this matter I write him a letter requesting that Delbert Small be relieved as a special police officer for the Hospital.

Upton further avers that

[o]n February 6, 1976, in response to [the city manager’s] request, I wrote him requesting that Mr. Small’s appointment as special officer for the Hospital be rescinded, effective February 9, 1976. On February 9 I notified Mr. Small, that his services were terminated, effective that date____ The reason for Mr. Small’s termination was the representation to me by [the city manager] that Mr. Small’s special appointment was being terminated.

Small’s own deposition of May 7, 1983, at 56, contains the following:

Q. Did you ever receive anything from the City of Belfast or any employee from the City of Belfast stating that your special officer status had been terminated?
A. No.
Q. After your meeting with Mr. Upton where Mr. Upton stated that he was going to terminate you, did you receive any kind of telephone call or any other message other than in writing from anybody employed by the City of Belfast regarding your special officer status at the Waldo County Hospital?
A. I received the letter, my copy of the resignation as reserve officer.

Thus, the only evidence of “revocation” presented by plaintiff actually supports defendants’ assertion that no formal revocation took place. The city manager solicited a letter from the hospital administrator requesting the revocation of Small’s appointment. Instead of simply providing the requested letter, which could well have resulted in the eventual revocation of the special officer appointment by the city manager, the hospital administrator also discharged Small from his private employment with the hospital, including his non-police functions. As a result of this action by the hospital administrator, the special officer appointment, which limited Small’s jurisdiction to the hospital premises, became a nullity. Thus, it is not surprising that no formal revocation of that appointment ever took place, since Small could not act as a special police officer for the hospital once he was dismissed from his hospital employment.

To be sure, the city manager, according to Upton, intended to revoke the appointment and did solicit the letter for that purpose. However, the city manager’s announcement of his intentions did not preclude Upton from retaining Small along with his special officer appointment, if he so chose, unless and until an actual revocation took place. Indeed, absent such a revocation the hospital could have chosen to rehire Small after his discharge. Small’s own description of the events surrounding his discharge indicate that Upton was not blindly acquiescing to the city manager’s request for a letter. According to Small, Upton said to him on February 5, 1976, “They tell me that where you are not fit to be a reserve officer, you are also not fit to be a special officer, and I’m going to have to ask for your termination.” Small Deposition, at 50.

The constitutional deprivation asserted by plaintiff is the revocation of his special officer appointment by the city manager without due process. Regardless of what the city manager may have planned to do, no actual revocation ever took place. Instead, Small was discharged by the hospital, an act within the sole discretion of the hospital administrator, even though it seems clear that his decision was strongly influenced by the communication from the city manager. But to say that this communication amounted to a revocation of the special officer appointment overlooks the fact that the city manager’s communication to Upton had made it clear that the city manager contemplated taking future action himself with regard to the revocation, once he received the letter from Upton. Although it seems reasonable to suppose that revocation would have been sought had the hospital not dismissed Small first, there having been no revocation it is pure speculation on plaintiff’s part to assert that the revocation would have been accomplished without due process.

The crux of plaintiff’s claim in this case is that Small was discharged by his private employer in response to a communication from the city manager concerning Small’s alleged possession of a stolen snowplow and the city manager’s planned course of action. Although the city manager’s actions may have constituted defamation of Small’s character, those actions, as alleged by plaintiff, do not amount to a constitutional deprivation of a property interest in his status as a special police officer.

IV. CLAIM AGAINST CITY OF BELFAST

In addition to the arguments raised by both defendants, the defendant city, in particular, argues that it is not liable for the unconstitutional actions of the city manager alleged in the amended complaint.

In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Court held that although a city was a “person” within the meaning of section 1983, it would not be held liable on respondeat superior theory. Id. at 691, 98 S.Ct. at 2036. In order for cities to be liable, the constitutional wrong must be committed pursuant to official policy.

Cloutier v. Town of Epping, 714 F.2d 1184, 1191 (1st Cir.1983). The complaint does not allege, nor do the subsequent submissions by plaintiff indicate, that the actions of the city manager were undertaken pursuant to any official policy. On the contrary, plaintiff asserts that the city manager’s actions contravened official policy by not complying with established city personnel procedures. Nevertheless, plaintiff argues that the city manager’s conduct constituted “an official act of the City of Belfast.” This is no more than an argument for liability under respondeat superi- or. Although the city manager may have been acting “under color of” his position and discretionary authority as city manager, it does not follow that his actions were pursuant to any city policy. Accordingly, the defendant City of Belfast is entitled to a dismissal of the claims against it on this ground, as well as the grounds heretofore discussed.

V. CONCLUSION

Under the approach recently articulated in Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 85 L.Ed.2d 254 (U.S.1985), for determining the appropriate state limitations period to borrow for section 1983 claims, Maine’s two-year limitations period governing most intentional torts for personal injury damage, rather than its six-year residuary period, must now be applied to all section 1983 claims. However, this holding does not apply retroactively to bar plaintiff’s deprivation of property interest claim. Moreover, Wilson makes clear that applying the two-year limitations period in the Maine Tort Claims Act would contravene the policies behind the section 1983 remedy. Thus, plaintiff’s amended complaint is not time-barred.

Considering the alternative grounds for summary judgment presented by the defendants, the court concludes that plaintiff’s testate had no constitutionally protected property interest in his special police officer appointment and, even assuming the existence of such a constitutionally protected interest, there remains no genuine issue as to the fact that no deprivation of that interest ever occurred through the revocation of the special officer appointment without due process. In addition plaintiff has neither alleged nor submitted any evidence indicating any basis for imposing liability on the defendant city for the defendant city manager’s actions.

Upon the court’s de novo review of the Magistrate’s recommended decision granting summary judgment to defendants, that recommended decision is ACCEPTED, albeit for different reasons. Defendants’ motion for summary judgment is GRANTED. The Clerk is directed to enter final judgment for defendants dismissing all claims.

SO ORDERED.

      . See Aitchison v. Raffiani, 708 F.2d 96, 100-103 (3d Cir.1983); but see Pauk v. Board of Trustees, 654 F.2d 856 (2d Cir.1981), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982); Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir.1980); Pearman v. Walker, 512 F.Supp. 228 (D.R.I.1981).

      . Among these courts is the First Circuit. See, e.g., Gashgai v. Leibowitz, 703 F.2d 10 (1st Cir. 1983).

      . Negligence actions against architects and engineers are governed by a four-year limitations period, Me.Rev.Stat.Ann. tit. 14, § 7S2-A, and actions for "property damage, bodily injury or death against a ski area [or tramway] owner or operator ... or its employees” must be commenced within two years, Me.Rev.Stat.Ann. tit. 14, § 752-B.

      . The two-year limitations period for assault, battery, false imprisonment, slander and libel was first embodied in Rev.Stat.1916, ch. 86, § 87.

      . Professor Prosser has explained:
      The distinction [between trespass and case] was not one between intentional and negligent conduct. The emphasis was upon the causal sequence, rather than the character of the defendant’s wrong. Trespass would lie for all direct injuries, even though they were not intended, and the action in the case might be maintained for those which were intended but indirect.
      Modern law has almost completely abandoned the artificial classification of injuries as direct or indirect, and looks instead to the intent of the wrong doer, or to his negligence.

        Id. at 29.

      . The two-year limitations period of section 753, although shorter than Maine’s residuary period, is not so short that it "fails to take into account the practicalities that are involved in litigating federal civil rights claims and policies that are analogous to the goals of the Civil Rights Acts,” Burnett v. Grattan, — U.S.-,-, 104 S.Ct. 2924, 2930, 82 L.Ed.2d 36 (U.S.1984). In two post -Wilson decisions the First Circuit has reaffirmed the applicability of Puerto Rico’s one-year tort limitations period. Ayala Serrano v. Collazo Torres, 764 F.2d 47 (1st Cir.1985); Altair Corporation v. Pesquera de Busquets, 769 F.2d 30 (1st Cir.1985).
      Nor does the application of the two-year period tend to discriminate against federal claims, a concern which prompted the Supreme Court to call for the application of state tort limitations periods rather than state limitations periods for statutory claims or claims against public officials. Wilson v. Garcia, - U.S. at -, 105 S.Ct. at 1949-50.

      . Plaintiff has argued that Wilson calls for Maine's six-year residuary period to be applied to all section 1983 claims and, therefore, that her original claim for deprivation of a liberty interest in reputation, previously dismissed on statute of limitations grounds, should be reinstated by permitting her once again to amend the complaint. In view of the court's conclusion that Wilson does not require the application of a limitations period different from the pre-Wilson limitations period applicable to such a claim, this argument must be rejected.

      . Although the decision in Dow is not binding on this court and the deference to which that decision should be accorded under stare decisis principles is diminished by the fact that the decision was unpublished, it nevertheless buttresses plaintiffs claim of reasonable reliance on the applicability of the residuary limitations period.

      . On the other hand, plaintiff's reliance on the applicability of Maine's residuary limitations period for the original claim of reputational injury due to a deprivation of his liberty interest in his reputation was not reasonable. The analogy to a common law defamation was readily apparent, as indicated by plaintiff's own assertion of a pendent state law claim for defamation. Supreme Court and First Circuit authority had made it clear that this court should choose the limitations period for an analogous state law claim and that the analogy to a state law tort was entirely appropriate. See Graffals Gonzalez v. Garcia Santiago, 550 F.2d 687 (1st Cir.1977).
      Indeed, following this court’s order dismissing the original complaint, the First Circuit, in Gashgai v. Leibowitz, 703 F.2d 10 (1st Cir.1983), applied the aforementioned analysis and held that a physician's claim of denial of due process, arising out of the state defendants’ activities in investigating plaintiff's billing and diagnostic procedures and in placing Gashgai's license to practice medicine on "probation," was barred by Maine's two-year defamation limitations period. The court viewed the "gravamen" of the complaint as consisting of defendants’ alleged impairment of Gashgai’s "reputation, sensibilities and ability to practice medicine.” Id. at 12.
      By reasserting a claim for damages for reputational injury, plaintiff’s amended complaint comes perilously close to the claim in the original complaint which the court held to 'be time-barred, a conclusion reenforced by Gashgai. However, the constitutional violation asserted in the amended complaint, a deprivation of an asserted property interest in Small's position as special police officer, is distinct from any claim of deprivation of a liberty interest in his reputadon, see, e.g., Eames v. City of Logan, Utah, 762 F.2d 83, 85 (10th Cir.1985), and the court’s conclusion as to the different pre-Wilson limitations period applicable to the property interest claim in no way constitutes a ruling as to the damages to which plaintiff might be entitled if successful in establishing a wrongful revocation of Small’s appointment.

      . In 1976, when the events underlying this suit took place, that statute provided:
      § 2361. Police officers
      1. Appointment. Except as provided in municipal charter or section 2317, subsection 1, paragraph F, the municipal officers may appoint for a definite term, control and fix the compensation of police officers, unless the municipality has provided otherwise under section 2152, subsection 2. Police officers may be removed for cause after notice and hearing.
      According to the pleadings, affidavits and depositions, the city manager did not fix or control Small’s compensation as special police officer and the city itself did not otherwise provide for such compensation by ordinance under 30 M.R. S.A. § 2152(2). Small was appointed special police officer for the hospital for one year in April 1974. He was reappointed by the City on July 21, 1975, again for one year.

      . See note 10, supra.

      Indicative of the restricted meaning of the term "police officers,” as used in section 2361, is the Legislature’s 1979 amendment of that section, 1979 Me.Laws ch. 104, to provide that "police officers, including police chiefs may be removed for cause after notice and hearing.” (Emphasis added. ) Me.Rev.Stat.Ann. tit. 30, § 2361 (Supp. 1984-85). Thus, it is clear that “police officers” as used in this section does not include special police officers.

      . After the events in the present case, this section was amended in respects not pertinent to the present discussion. Me.Rev.Stat.Ann. tit. 30, § 2256 (Supp.1984).


source: Caselaw Access Project

author: STECKLER, District Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff, v. SEYMOUR RECYCLING CORP., et al., Defendants.
    No. IP 80-457-C.
    United States District Court, S.D. Indiana, Indianapolis Division.
    March 27, 1984.
    Linley E. Pearson, Atty. Gen., State of Ind., Indianapolis, Ind.
    Douglas F. Bauer, Amerace Corp., New York City, Richard R. McDowell, Hill, Fulwider, McDowell, Funk & Mathews, Indianapolis, Ind., for Amerace Corp. (Emconite Div.).
    Joseph B. Carney, Baker & Daniels, Indianapolis, Ind., James L. Wamsley, III, Jones, Day, Reavis & Pogue, Cleveland, Ohio, for American Greetings Corp.
    Ronald E. Elberger, Bose, McKinney & Evans, Indianapolis, Ind., Jon M. Sebaly, Smith and Schnacke, Dayton, Ohio, for Angelí Mfg. Co.
    Stephen W. Leermakers, Ashland Oil Inc., Lexington, Ky., John A. West, Marcus P. McGraw, Greenebaum, Doll & McDonald, Lexington, Ky., John A. Conlon, Indianapolis, Ind., for Ashland Oil.
    (James R. Adams, Cincinnati, Ohio, of counsel), William H. Hawkins, Vito C. Peraino, Frost and Jacobs, Cincinnati, Ohio, Ronald E. Elberger, Bose, McKinney & Evans, Indianapolis, Ind., for Aurora Casket, Lenk Mfg. Co. and Foster Transformer Co. (Seymour Electronics Div.).
    Joseph E. DeGroff, Richard W.. Fields, Martha Hollingsworth, Indianapolis, Ind., Jeffrey J. Lorenzo, Seymour, Ind., for Bd. of Aviation Com’rs of Seymour, Ind.
    James E. Rocap, Jr., Rocap, Rocap, Reese & Young, Indianapolis, Ind., for Centralab.
    Jerome C. Randolf, Keating, Muething & Kleekamp, Cincinnati, Ohio, Terrance P. Pohler, Indianapolis, Ind., John L. Spaulding, James T. Whittle, Jr., Spaulding, Grause & Phillips, Covington, Ky., Lawrence M. Reuben, Atlas, Jyatt & Reuben, Indianapolis, Ind., for Cloudsley Co.
    Joseph B. Carney, George W. Pendygraft, Baker & Daniels, Indianapolis, Ind., for Contractors United, Inc. and Emery Industries (Nat. Distillers and Chemical Corp.).
    John D. Dale, Jr., Taylorsville, Ky., for Custom Indus. Services, Inc.

      Tim E. Sleeth, Frank L. Hearns, Phillip I. Dillingham, Smith and Hulsoy, Jacksonville, Fla., for Dayton Press, Inc.
    Robert P. Palmer, V. Roch Grundman, Dresser Industries, Inc., Dallas, Tex., William P. Wooden, Wooden, McLaughlin & Sternes, Indianapolis, Ind., for Dresser Mfg.
    John C. Duffey, Anthony S. Benton, Stuart and Branigin, Lafayette, Ind., for Egyptian Lacquer Mfg. Co.
    William L. Schlosser, Baker, Orbison, Bales & Knowles, Indianapolis, Ind., James F. Allen, Elizabeth E. Tulman, Squire, Sanders & Dempsey, Columbus, Ohio, for Ferro Corp.
    John A. West, Marcus P. McGraw, Greenebaum, Doll & McDonald, Lexington, Ky., John A. Conlon, Indianapolis, Ind., for Guardsman Chemicals, Inc., E.H. Marcus Paint Co., Natico, Inc. and Porter Paint.
    Charles E. MacGregor, Richard T. Mullineaux, Wyatt, Tarrant, Combs & Orbison, New Albany, Ind., for Haas Cabinet Co., Inc.
    William G. Baker, Baker and McNichols, New Castle, Ind., Steven A. Tasher, Donovan, Leisure, Newton & Irvine, Washington, D.C., Sam Watkins, Duffy and Watkins, White Plains, N.Y., for Hudson Wire Co.
    Marvin L. Hackman, Lee B. McTurnan, Smith, Morgan & Ryan, Indianapolis, Ind., for I VC Indust. Coatings, Inc.
    Jerry P. Belkamp, John M. Kyle, III, Indianapolis, Ind., Allan J. Topol, Washington, D.C., for Intern. Business Machines, Inc.
    G. Robert Witmer, Jr., Nixon, Hargrave, Devans & Doyle, Rochester, N.Y., Walter F. Lockhart, Ruchelshaus, Roland, Has-brook & O’Connor, Indianapolis, Ind., for Jones Chemicals, Inc.
    William G. Baker, Baker & McNichols, New Castle, Ind., Jeffrey L. Dow, The Kendall Co., Boston, Mass., Steven A. Tasher, Donovan, Leisure, Newton & Irvine, Washington, D.C., for the Kendall Co.
    John Bickel, Thacker, Thacker, Bickel, Wetzel & Hodskins, Owensboro, Ky., John R. Hiner, Osborn & Hiner, Indianapolis, Ind., for Kentucky Electronics, Inc.
    John D. Tully, John V. Byl, Grand Rapids, Mich., for Lakeway Chemicals Co. (Bofors Nobel, Inc.).
    W.C. Blanton, Ice, Miller, Donadío & Ryan, Indianapolis, Ind., for Mobil Chemical Co.
    Brent J. Gilhausen, Monsanto Co., St. Louis, Mo., William C. Barnard, Frank J. Deveau, Sommer & Barnard, Indianapolis, Ind., for Monsanto Co.
    John R. Cromer, Mishkin, Cromer, Eaglesfield & Maher, Indianapolis, Ind., for Nat. Cash Register Corp.
    David M. Haskett, Locke, Reynolds, Boyd & Weisell, Indianapolis, Ind., King, Deep, Branaman & Farmer, Henderson, Ky., for P.B. & S. Chemical Co., Inc.
    Richard R. McDowell, Hill, Fulwider, McDowell, Funk & Matthews, Indianapolis, Ind., Stephen C. Muther, New York City, for Phelps Dodge Industries, Inc.
    Richard D. Wagner, Clifford W. Browning, Krieg, DeVault, Alexander & Cape-hart, Indianapolis, Ind., for Reynolds Metals Corp.
    Donald Harrison, Miller & Chevalier, Chartered, Washington, D.C., Valerie Tarzian, Bloomington, Ind., for Sarkes Tarzian, Inc.
    Ronald K. Lambring, Rothring, Lambring and Black, Seymour, Ind., for City of Seymour.
    Samuel A. Bleicher, Frank, Bernstein, Conaway & Goldman, McLean, Va., Arthur F. Beck, Cline, King, Beck & Harrison, Columbus, Ind., for Seymour Mfg. Co., Inc.
    Louis F. Cohen, Dillon & Cohen, Indianapolis, Ind., for Seymour Recycling (William Vance, Receiver).
    W.C. Blanton, Ice, Miller, Donadio & Ryan, Indianapolis, Ind., Joseph F. MichaelKenney, A.O. Smith Corp., Milwaukee, Wis., for A.O. Smith Corp.

      J. Christopher Jackson, Robin Madison DeMouth, Stewart-Warner Corp., Chicago, 111., Scott Smith, W.C. Blanton, lee, Miller, Donadío & Ryan, Indianapolis, Ind., for Stewart-Warner Corp.
    Michael S. Walsh, Lawrence, Carter, Gresk, Leer, Kemp and Walsh, Indianapolis, Ind., for Superior Oil Co.
    John R. Garry, Jr., New Albany, Ind., John J. Ford, Louisville, Ky., for Technical Products, Inc.
    Richard R. McDowell, Hill, Fulwider & McDowell, Indianapolis, Ind., Robert A. Mattews, Union Carbide Corp., Danbury, Conn., for Union Carbide.
    John R. Barker, U.S. Dept, of Justice, Land and Natural Resources Div., Environmental Enforcement Section, Washington, D.C., John Daniel Tinder, Charles Goodloe, Jr., Asst. U.S. Atty., Indianapolis, Ind., for U.S. of America.
    William L. Schlosser, Baker, Orbison, Bales & Knowles, Indianapolis, Ind., Stephen K. Todd, U.S. Steel Corp., Pittsburg, Pa., for U.S. Steel Corp.
    William G. Baker, Baker and McNichols, New Castle, Ind., Steven A. Tasher, Donovan, Leisure, Newton and Irvine, Washington, D.C., Richard J. Denney, Jr., Gen. Counsel, Fredrick S. Mueller, Environ. Counsel, Velsicol Chemical Corp., Chicago, Ill., for Velsicol Chemical Corp.
    James E. Markle, President, Wastex Research, Inc., East St. Louis, Ill., for Wastex Research, Inc.
    William R. Jacobs, Charles Atkins, Cincinnati, Ohio, for Whitten, Bruce A.
    William C. Barnard, Frank J. Deveau, Sommer and Barnard, Indianapolis, Ind., Special Appearance.
    Steven F. Schuster, Ogden, Robertson & Marshall, Louisville, Ky., for Blatz Paint Co.
    Don Owens, III, Memphis, Tenn., for Burke-Hall.
    Wayne F. Taylor, Corporate Counsel, Cincinnati Milicon, Cincinnati, Ohio, H. Terrance Smith, Warner, Norcross & Judd, Grand Rapids, Mich., for Carstab Corp.
    Isadora Bernstein, Columbia, S.C., for Columbia Organic Chemical Co.
    Frank Von Hagen, Cincinnati, Ohio, for Klor-Kleen, Inc.
    Jerry Randolf, Keating, Muething & Kleekamp, Cincinnati, Ohio, Lawrence M. Reuben, Atlas, Hyatt & Reuben, Indianapolis, Ind., for Muller Industries, Inc.
   ENTRY AND ORDER

STECKLER, District Judge.

The above-captioned matter came before the Court for a ruling on a motion for leave to intervene and to be heard on the disbursement of funds, filed by 94 of the 101 homes and/or businesses situated in a subdivision in Jackson County, Indiana, known as the Snyde Acres Subdivision. The motion to intervene was filed on October 6, 1983, and on November 21, 1983, the State of Indiana filed its response to the motion; the United States’ response was filed on December 13, 1983. Each response stated, essentially, a neutral position on the intervention; the United States noted that the Snyde Acres residents were not technically intervenors, but the United States approved of a hearing on the matter of the requested disbursement.

On January 16, 1984, the Court granted the motion to intervene. By entry, also dated January 16, 1984, the matter was scheduled for a hearing on February 27,

1984. The United States, on February 24, 1984, filed a Memorandum concerning petitioners’ motion to be heard on the disbursement of funds for an alternate water system for Snyde Acres.

On February 27,1984, the Court conducted a hearing on the requested disbursement of funds for a water system for Snyde Acres. Counsel who appeared during the hearing were:

Duge Butler, Esquire, for intervenors Ronald K. Lambring, Esquire, for the City of Seymour.
Robert K. Johnson, Esquire, for the State of Indiana.
Roger Field, Esquire, for the United States.
Robert D. Daniel, Esquire, for the United States.
Charles Goodloe, Jr., Esquire, for the United States.

In addition to the attorneys listed above, Ms. Beverly Kush, a United States Environmental Protection Agency engineer, who was assigned as on-scene coordinator during the surface cleanup at Seymour Recycling, attended the hearing. John Bottorff, John D. Roberts, Michael Sorensen and Keith W. Bossung, all residents of the Seymour area, attended the hearing. The hearing was also attended by a large contingent of interested citizens, and by numerous news media personnel.

The evidence of the intervenors was received; Messers. Bottorff, Roberts, Sorensen, and Bossung testified. The respondents (plaintiff and defendants) offered no evidence. The United States relied on its response to the motion to intervene and its memorandum of February 24, 1984.

Having considered the motion of the intervenors and the responses to the motion; having thoroughly studied the February 24, 1984, memorandum and attachment filed by the United States; having carefully considered the evidence offered during the hearing on this matter; and, having evaluated the materially pertinent statutes, the Court does now submit its ruling.

The Court hereby adopts the historical recitation of the applicable facts concerning the above-captioned matter, as recited in a memorandum entered on December 15, 1982, 554 F.Supp. 1334.

After the Court entered the consent decree on December 15, 1982, (which provided for a surface cleanup at the Seymour Recycling site), the United States collected approximately Three Million Dollars ($3,000,-000.00), pursuant to covenants between the plaintiffs and local officials and certain of the shippers and transporters of waste to the Seymour site. These funds were deposited in the Registry of the Court, pursuant to an August 10, 1983, motion filed by the United States and the Court’s order approving the motion.

The Court finds that there are approximately 101 homes and/or businesses in Snyde Acres, a subdivision located in Jackson County, Indiana. Snyde Acres is situated approximately 1,000 feet north of the acreage at Freeman Field, in Jackson County, which was the site of the Seymour Recycling Corporation.

The businesses and homes of the Snyde Acres Subdivision use well water; these wells draw water from the shallow aquifer, below the surface, and have a depth of approximately 18 to 30 feet. The United States has conducted preliminary studies of the soil and groundwater contamination around the Seymour Recycling site. Tests have also been made of the wells used by Snyde Acres residents. Tests of water from the wells in the Snyde Acres Subdivision indicate that such wells are not now contaminated by chemicals from the Seymour Recycling site; however, the preliminary scientific and engineering studies of the soil and the shallow aquifer around the Seymour Recycling site permit the inference that the wells could become contaminated by the movement of chemicals from the site.

The preliminary study, which was completed in February, 1982, has documented the contamination of the shallow aquifer that passes under the Seymour Recycling site. The study confirms that groundwater in the shallow aquifer flows to the North-Northwest of the site, in the direction of the Snyde Acres subdivision and other nearby residences. The study documented the release, from the Seymour Recycling site, of such hazardous substances as benzene, phthalates, trichlorethane and other organic compounds. The record before the Court clearly supports a finding that there has been a release of hazardous substances from the Seymour Recycling site that may present an imminent and substantial endangerment to the public health or the welfare of persons who use private wells that draw groundwater from the shallow aquifer downgradient of the Seymour Recycling site. Groundwater monitoring by U.S. EPA and the State of Indiana, however, has not shown that an immediate danger exists to people using the wells in the Snyde Acres area.

Irrespective of the fact that the Indiana State Board of Health and the United States Environmental Protection Agency have tested wells in and around the Snyde Acres Subdivision for contamination for several months, and such wells do not, at this time, show contamination, the residents of the Snyde Acres have a fear that the wells may become contaminated; some residents do not, now, use the water from their wells, except for bathing. The testimony established that some residents have not used their well water for drinking purposes for more than one year. The potential threat is, therefore, imminent within the meaning of the applicable statutory provisions because the groundwater in the shallow aquifer flows in the direction of Snyde Acres residences and the contaminants can be expected eventually to reach those residences.

Keith W. Bossung, the manager of Indiana-American Water Company, Inc. — Seymour District (hereafter Indiana-American), has testified that Indiana-American services the City of Seymour, and has sufficient capacity to serve Snyde Acres. Specifically, the evidence through the testimony of Mr. Bossung established:

“It is my understanding that there now is evidence that approximately 101 residential dwellings may initially be served from this proposed water main extension. Based on 1983 historical data, the average residential customer in Seymour utilized approximately 54,000 gallons of water per year. Anticipating the addition of 101 residential customers in the Snyde Acres area, the additional projected water usage for this area would be 5,454,000 gallons per year or an average of approximately 15,000 gallons per day. 1983 average daily pumpage was 1,368 million gallons. With the addition of the Snyde Acres customers a projected average daily pumpage of 1.383 million gallons could be anticipated.
In terms of peak daily requirements, it is anticipated that based on 1983 peak day residential usage, the addition of 101 residential customers may result in an additional 18,000 gallons per day peak usage. The historical peak day pumpage on record for the Seymour District is 2.102 million gallons. The addition of peak daily requirements for the 101 residential customers brings the projected peak day pumpage requirements to 2.120 million gallons per day.
Considering the average projected daily pumpage requirement of 1.368 million gallons and projected peak daily pumpage requirement of 2.120 million gallons and realizing that the existing rated capacity of the Seymour District water treatment and pumping facility is 2.7 million gallons per day, it is evident that the projected water demands of the Seymour water system can be easily met with the addition of the 101 Snyde Acres residential customers.” (Hearing Exhibit No. 3)

Indiana-American draws its water for the City of Seymour from the White River, approximately four miles upstream from Seymour, Indiana.

The manager for Indiana-American further testified that the total estimated cost for the installation of a water system would be approximately $300,000.00. It was established that Indiana-American has a 16 inch water main in existence and in use which terminates at a point less than 1,000 feet from Snyde Acres. The projection by the manager of Indiana-American called for installing a 12 inch main from the 16 inch main, to deliver water to the Snyde Acres Subdivision. Smaller lines would be used to deliver water to the individual residences and/or 'businesses. Indiana-American would contract for the installation of the water mains with a pipe laying company. A separate contract with a plumbing company would be required for the connection of water lines to the homes, from the water mains. The costs of the contract with a pipe laying company and a plumbing company were a part of the estimate by Indiana-American for the installation of the water system. Indiana-American’s estimate of the cost of the installation of the water system was based on the use of asbestos-cement pipe; it was established that the use of ductile iron pipe would cost more than asbestos-cement pipe (No evidence was taken on the acceptability, or cost effectiveness of one type pipe as opposed to the other type pipe).

The United States has undertaken new studies which are designed to define more precisely the extent and nature of the endangerment to the public health or welfare or to the environment, so that appropriate precise remedial measures can be developed. Although such studies are in process and no conclusions can be made, it is evident that any permanent remedial actions taken at the site will likely include the installation of a public drinking water supply at Snyde Acres.

The applicable statute [42 U.S.C. § 9601(24)] expressly includes the “provision of alternative water supplies” as a “remedy”. A public water system which is not contaminated by the Seymour Recycling site would remove the dangers that are presented by the contamination of the shallow aquifer around the site.

On consideration of the motion of the intervenors, the responses thereto, the memorandum of the United States, the evidence received during the hearing on February 27, 1984, and the statements of counsel, the Court does now submit its ruling.

It is hereby ordered, adjudged and decreed that, the Court has jurisdiction to order the installation of the water system in accordance with the materially pertinent statutes and regulations, that the health of the citizens of Snyde Acres may be affected by contamination moving from the Seymour Recycling Corporation site, that a public drinking water supply to Snyde Acres will remove that aspect of the potential health hazard, and that Indiana-American has the capacity to supply water from its facilities in the area to Snyde Acres.

Accordingly, on receipt of specifications and plans which have been considered and approved by the appropriate federal, state and local government entities, where required, and on being satisfied that funds from the Registry of the Court will be appropriately applied to the abatement of a potential health hazard, the Court will order the disbursement of funds from the Registry of the Court, for the installation of a public drinking water system to the Snyde Acres Subdivision, Jackson County, Indiana.

It is further hereby ordered that counsel for the intervenors, counsel for Jackson County, counsel for the City of Seymour, representatives of Indiana-American, and counsel for the United States, and other appropriate persons, or entities, shall meet forthwith and commence the formulation of a plan to be submitted to the Court for its approval.


author: DEVINE, Chief Judge.

text:
    Rose E. LIGHTBODY, Administratrix of the Estate of Louis S. Lightbody, Sr. v. The TOWN OF HAMPTON.
    Civ. No. 82-277-D.
    United States District Court, D. New Hampshire.
    July 31, 1984.

      Law Offices of James J. Railed by James J. Railed, Ossipee, N.H., for plaintiff.
    Shaines, Madrigan & McEachern by John H. McEachern, Portsmouth, N.H., Burns, Bryant, Hinchey, Cox & Shea, by Donald R. Bryant, Dover, N.H., for defendants.
   ORDER

DEVINE, Chief Judge.

Plaintiff Rose Lightbody, Administratrix of the Estate of Louis Lightbody, and a citizen of Massachusetts, sues defendant Town of Hampton, an incorporated New Hampshire town, for the wrongful death of Louis Lightbody. Jurisdiction ostensibly is founded upon diversity of citizenship. 28 U.S.C. § 1332. Hampton moves to dismiss Count II of the complaint for failure to state a claim upon which relief can be granted. Rule 12(b)(6), Fed.R.Civ.P. Matters outside the pleadings have been presented by both parties and considered by the Court, so the motion shall be treated as one for summary judgment as provided in Rule 56. Rule 12(b), Fed.R.Civ.P.

Count II claims that Hampton, in contravention of decedent’s civil rights, willfully and with wanton neglect confined decedent in a jail known by defendant to be inadequately designed and supervised, resulting in decedent’s death by suicide. The complaint in brief notes that on or about November 29, 1980, decedent was arrested by members of the New Hampshire State Police for driving while intoxicated, N.H. RSA 262-A:62. State Police officers brought decedent to the Hampton Jail and left him in the custody of the Hampton Police. Decedent was placed in a jail cell, and subsequently hung himself. Administratrix alleges that the confinement of the decedent in a facility that defendant knew was inadequately designed and supervised to prevent suicides, which deficiences defendant refused to correct despite four prior suicide attempts; and about which the Chief of Police of Hampton prior to decedent’s suicide stated that it was just a matter of time before someone hangs himself at the Jail, amounts to a deprivation of life and person in contravention of the Fourteenth Amendment, and cruel and unusual punishment under the Eight Amendment.

The facts are as follows. On November 29, 1980, at approximately 10:30 p.m., the decedent, Louis Lightbody, was stopped and arrested by New Hampshire State Troopers Colon Forbes and Robert Bruno for driving while under the influence of intoxicating liquor on Interstate 95 in Hampton Falls, New Hampshire. Light-body failed the field sobriety test performed at the request of the Troopers. The Troopers elected to transport Mr. Lightbody to the Hampton Police Department in lieu of transporting him to either a local hospital or another jail facility.

The Town of Hampton maintains a Jail at its Ashworth Avenue station. The lockup is used by the Hampton Police Department as well as the communities of Rye, Sea-brook, and North Hampton. The New Hampshire State Police also use the Hampton facility. The staffing and supervision of the Jail varies during the year due to seasonal fluctuations in the numbers of people using the New Hampshire seacoast area. During the summer, Hampton staffs its Jail with at least two booking officers. Off-season, the Jail is not staffed; the only person in the station throughout a shift is the dispatcher.

From the time decedent was placed in the cell until he was found hanged, the only Hampton employee in the station was the dispatcher. Hampton Police Department Rules and Regulations provided:

5.13 ... the prisoner shall under no circumstances be left in the custody of any civilian employee of the department except when absolutely necessary in any emergency.

The facts do not indicate whether the dispatcher was a civilian employee.

Upon arriving at the Hampton Police Department, where a blood alcohol content test was to have been performed, it was learned that the breathalyzer was inoperable. The decedent was transported to the Seabrook, New Hampshire, police station where a breath test revealed his blood alcohol content to be .30. The Alcoholic Influence Report indicates decedent had earlier taken Valium and was diabetic, last having taken insulin that morning. He was transferred back to the Hampton Police Department and was booked and held pending bail.

The arresting officers, Hampton and non-Hampton, book their own prisoners, following Hampton’s booking procedures, so far as they know them. Although Hampton has printed rules and regulations relating to jailing procedures, these are not made available to non-Hampton officers. Once a prisoner is placed in the Jail and the cell door closes, he is the responsibility of the Hampton Police Department. Thé Hamp-” ton Police Department learns that a prisoner has been placed in the Jail when the arresting officer tells the Hampton dispatcher. In this case, the dispatcher was advised that the decedent was in his cell. The shift supervisor is to be notified by the dispatcher if he is out on patrol when a prisoner is placed in the Jail. This is not a procedure that is always done. In this case, the dispatcher did not notify the shift supervisor that decedent had been brought in. The shift supervisor first learned of decedent’s presence when asked to respond to the suicide.

Hampton requires that the arresting officer enter on a Daily Prisoner Log his name; the prisoner’s name, age, and cell number; the time of arrest; the charge and bail; and Whether his phone call had been made. The arresting officer is to complete a Uniform Arrest Report. Neither the Daily Prisoner Log nor the Uniform Arrest Report calls for any information regarding a jailed person’s blood alcohol content, his physical or mental condition, or whether he had been taking any medications. There is no requirement that the non-Hampton arresting officers ascertain whether there is a Hampton officer physically present in the station before incarcerating a prisoner. Although the arresting officers might stay in the station after placing the person in a cell, they have no continuing responsibility for his care. The Troopers who had arrested and jailed decedent were still present in the Jail when decedent committed suicide.

After being booked, decedent was advised that his bail would be $275. He was allowed to make a telephone call per Hampton Police Department Rules and Regulations, Jail Procedure ¶ 5.01, and telephoned his mother, Rose Lightbody, informing her of his arrest and the amount of his bail. Trooper Forbes then spoke to Mrs. Light-body who stated that she would contact someone to bring bail to the Hampton Police Department. This information was passed on to decedent by Trooper Forbes. Shortly after the booking, Trooper Forbes received a telephone call from Mr. John Lightbody, decedent’s brother, who informed the Trooper that he was on his way to Hampton from Massachusetts with bail for the decedent. Decedent’s belt, shoes, and all personal belongings were taken from his person by the Troopers following Hampton Police Department Rules and Regulations, Jail Procedure 115.2. The Troopers allowed him to keep his socks, pants, undergarments, shirt, and a down vest because of the cool temperatures in the cell area. Lightbody was placed in a holding cell at approximately midnight.

From the time of his initial stop on Interstate 95 through his being booked and placed in a holding cell, a period of approximately one and one-half hours, decedent was cooperative and friendly. He was able to effectively communicate, dialing the telephone himself and speaking intelligently with his mother and the State Police Officers. His only stated concern was getting bail so that he could get to work at the Seabrook Nuclear Plant. There were no evident outward signs of anger, hostility, frustration, or depression, nor was there any outward indication that Lightbody might bring harm to himself or another person.

At approximately 1:30 a.m., on November 30, 1980, Lt. Dean Glover of the Sea-brook Police Department entered the cell-block area for the purpose of jailing several prisoners transported from Seabrook. Once inside, Lt. Glover found Mr. Light-body had committed suicide using his shirt to hang himself from the cell bars'. Resuscitation efforts by the Hampton Police Officers and the Hampton Police Emergency Medical Technicians were unsuccessful.

Hampton alleges that Lt. Glover entered the cellblock in order to check the cellblock prior to entering with prisoners, and that this check was performed within one and one-half hours after decedent had been put in his cell. Hampton Police Department Rules and Regulations provided:

5.04 All prisoners shall be visually checked at least once during every two hour interval to assure their safety and well being.

Plaintiff argues that decedent was not found during a cell check for the purpose of determining his well-being, and points out that some Hampton Police employees did not know of or regularly conform to the two-hour cell-check requirement. .

According to Hampton Police Chief Robert Mark, department regulations covered how to deal with a person who exhibited a predilection toward suicide. There are no guidelines used to identify a potential suicide. The only way the Department “knows” is if the prisoner says he is going to commit suicide. In that event, cell checks at fifteen-minute intervals are instituted whenever a person gives any indication of possible suicidal tendencies. Drunkenness also was sometimes a factor in determining frequency of checks. Any and all clothing and personal effects are promptly removed from such prisoners. According to the Chief, when the arrest is made by the State Police or some other town, the Hampton Police Department relies on their observations and recommendations in regard to suicide. If the arresting officer does not believe that a person shows a tendency to commit suicide, cell checks are not reported on the daily journal.

Chief Mark was aware of the potential for suicide in his Jail: “We have had to cut down four people who tried to hang themselves,” Mark said, “it’s just a question of time before we are caught.” He told the police station feasibility committee that lack of security at the beach station is a major item. Mark told the Hampton Union that the police had for years requested cameras for the cells and monitoring of the police parking lot, and fencing around the station, and it was “knocked out of the budget”. When Chief Mark was Deputy Chief he requested surveillance cameras; his request was rejected. With the exception of decedent’s suicide, Chief Mark knew of at least five attempted suicides. He has not kept special records of names, addresses, dates, and details of these various unsuccessful attempts at suicide.

Hampton arrests or holds 250 to 300 people per year for driving while intoxicated.- Hampton Police Department Rules and Regulations provided:

4.04 Whenever a person is arrested for a crime and taken to the police station, the duty supervisor shall immediately examine each prisoner booked and if he finds any bruises, cuts, or other injuries he shall forthwith report the matter by making a written report thereof to the Chief of Police. If, in the judgment of the officer-in-charge, the prisoner is suffering from wounds or injuries which require medical attention, physician shall be called.

Chief Mark has had no training in what medical concerns might arise for individuals incarcerated with a high blood alcohol count. Neither the Chief nor anyone in his department has the expertise to say that blood alcohol and the psychological makeup of an individual relate. He has no idea whether a high blood alcohol count raises concerns about a person’s health.

In order to succeed in its motion for summary judgment, defendant must demonstrate that, viewing the record in the light most favorable to plaintiff, documents on file reveal that there is no genuine issue as to any material fact and that defendants are entitled to a judgment as a matter of law. Early v. Eastern Transfer, 699 F.2d 552, 554-55 (1st Cir.), cert. denied, 464 U.S. 824, 104 S.Ct. 93, 78 L.Ed.2d 100 (1983). A dispute of fact is material if it affects the outcome of the litigation, and is genuine if manifested by the substantial evidence going beyond the allegations of the complaint. Pignons S.A. de Mecanique de Precision v. Polaroid Corporation, 657 F.2d 482, 486 (1st Cir.1981). The moving party bears the burden of showing that there is no genuine issue as to all the material facts necessary to entitle him to judgment. Donovan v. Agnew, 712 F.2d 1509, 1509, 1516 (1st Cir.1983). Defendant must affirmatively show there is no genuine issue of fact as to every relevant issue raised by the pleadings, and once it has done so, plaintiff cannot defeat summary judgment merely by standing on bare allegations. Emery v. Merrimack Valley Wood Products, Inc., 701 F.2d 985, 991 (1st Cir.1983); Mack v. Cape Elizabeth School Board, 553 F.2d 720, 722 (1st Cir.1977). Plaintiff must point to facts which if established at trial would entitle her to prevail. Over the Road Drivers, Inc. v. Transport Insurance Company, 637 F.2d 816, 818 (1st Cir.1980). Absent factual particulars that disclose triable issues of fact, a motion for summary judgment must be granted. White v. Hearst Corporation, 669 F.2d 14, 20 (1st Cir.1982).

Administratrix fashions a claim under the Eighth and Fourteenth Amendments to the Constitution of the United States. Hampton moves to dismiss, and finds its support in State Bank of St. Charles v. Camic, 712 F.2d 1140 (7th Cir.), cert. denied, 464 U.S. 995, 104 S.Ct. 491, 78 L.Ed.2d 686 (1983). In Camic, the Court of Appeals affirmed the district court’s grant of summary judgment to the City of Aurora and some of its police officers who had been accused of violating a decedent’s rights by prohibiting him from making a phone call to communicate with supportive persons prior to defendant’s placing him into a cell and/or failing adequately to supervise decedent so as to prevent him from committing suicide while he was incarcerated. The theory behind the Eighth Amendment claim was that decedent had a right to be protected from committing suicide. Camic, 712 F.2d 1145. Adopting the “deliberate indifference” standard of Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976), the Camic court held that even though 42 U.S.C. § 1983 embodies no state of mind requirement, the Eighth Amendment does. Camic, 712 F.2d 1146. The Court set as parameters of decedent’s state of mind “more than a mere suspicion” on the one hand, and “less than a moral certainty” on the other. Id. Finding that defendants had no knowledge of or reason to suspect suicidal tendencies on the part of decedent, even though decedent was intoxicated, uncooperative, had attempted to assault defendants, and was acting “freaky”, and finding that defendants did not act with deliberate disregard for the possibility that decedent would take his own life, even though defendants disregarded one or more of their established procedures, such as checking the cells every hour or effectively monitoring by visual or auditory systems the activities of prisoners, the Court held that if an Eighth Amendment right to be protected from suicide existed, it was not abrogated in this case because the defendants’ lack of knowledge and their exercise of reasonable precautions, i.e., removing decedent’s belt and shoelaces, precluding any possibility of their actions being characterized as deliberate or callous indifference. Id.

Camic is distinguishable. Camic focuses on the rigorous Eighth Amendment “deliberate or callous indifference” standard, but does not address the more lenient Fourteenth Amendment analysis. Although Count 2 claims violations of Eighth and Fourteenth Amendment rights, the latter properly supports plaintiff’s claim. The Eighth Amendment protects prisoners or pretrial detainees who allege either an express intent to punish or arbitrary or purposeless restrictions on conditions. Bell v. Wolfish, 441 U.S. 520, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Decedent was not a convict. He was presumed to be innocent, and any deprivation of his constitutional rights by the state was severely limited. Smith v. Sampson, 349 F.Supp. 268, 271 (D.N.H.1972). Decedent was not a pretrial detainee, i.e., one who had a judicial determination of probable cause as a, prerequisite to any extended restraint of liberty following arrest. Bell v. Wolfish, 441 U.S. 536, 99 S.Ct. 1872. Furthermore, plaintiff does not allege that defendant intended to punish or placed arbitrary or purposeless restrictions on conditions. Plaintiff therefore fails to state a claim under the Eighth Amendment. But plaintiff is not prisoner to the Camic court’s stringent Eighth Amendment analysis, because she states a claim for deprivation of those constitutional rights secured by the Due Process Clause of the Fourteenth Amendment. Bell v. Wolfish, 441 U.S. 535 n. 16, 99 S.Ct. 1872 n. 16; City of Revere v. Massachusetts General Hospital, 463 U.S. 239, 103 S.Ct. 2979, 2983, 77 L.Ed.2d 605 (1983).

Title 42 U.S.C. § 1983 gives to plaintiff the remedy for deprivation of constitutional rights. Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 617-18, 99 S.Ct. 1905, 1915-16, 60 L.Ed.2d 508 (1979). Plaintiff may proceed under section 1983 if the conduct complained of was committed while defendant acted under color of state law and when the conduct deprived decedent of rights, privileges, or immunities secured by the Constitution of the United States. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 1913-14, 68 L.Ed.2d 410 (1981). Liability under 42 U.S.C. § 1983 may be imposed for action that deprives a person of a constitutional right and for inaction when there is a duty to act to prevent such a deprivation. Clark v. Taylor, 710 F.2d 4, 9 (1st Cir.1983). Defendant acted under color of state law, and its inaction allegedly deprived decedent of his life. Allegations of such conduct that subjects a person to the deprivation of his life under color of state law without due process of law states a claim ipder 42 U.S.C. § 1983. Hirst v. Gertzeh, 676 F.2d 1252, 1262-63 (9th Cir.1982); Wagar v. Hasenkrug, 486 F.Supp. 47, 52-54 (D.Mont.1980).

More particularly, the death of an arrestee' while being held in custody is actionable under 42 U.S.C. § 1983. Pantoja v. City of Gonzales, 538 F.Supp. 335 (N.D.Cal.1982). In Pantoja, the Court analyzed an analogous situation to the case at bar, and under Parratt and its progeny concluded:

Under the reasoning of Parratt, as illuimnated by Logan [v. Zimmerman Brush Co., 455 U.S. 422, 102 S.Ct. 1148, 71 L.Ed.2d 265 (1982)], this case falls squarely within the category of cases attacking an established state procedure (including also the allegedly inadequate training of police officers), as opposed to those attacking random or unauthorized and hence unpredictable acts. Where the deprivation occurs as a result of the established practice, procedure or custom of the state authority, as alleged here, the result is not unpredictable and the state has a constitutional duty to prevent it. A post-deprivation hearing provided by the state in the course of a wrongful death action, which may satisfy due process in cases of random and unpredictable acts, is not adequate here.

Pantoja, 538 F.Supp. 338.

The various courts have struggled to determine the correct manner in which to analyze claims such as the present one which allege facts that are commonly thought to state a claim for commonlaw negligence. See Parratt v. Taylor, 451 U.S. 533, 101 S.Ct. 1911-12 (and cases cited therein). The Court is admonished not to “make of the Fourteenth Amendment a font of tort law to be superimposed upon whatever systems may already be administered by the states”. Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 1160, 47 L.Ed.2d 405 (1976); Parratt v. Taylor, 451 U.S. 544, 101 S.Ct. 1917. Then what is the standard of care — the duty created by this constitutional quasi-tort? The approach suggested by Justice Powell concurring in Parratt appears most appropriate on these facts where defendant allegedly deprived decedent of his life without due process of law. “A ‘deprivation’ connotes an intentional act denying something to someone, or, at the very least, a deliberate decision not to act to prevent a loss. The most reasonable interpretation of the Fourteenth Amendment would limit due process claims to such active deprivations.” Parratt v. Taylor, 451 U.S. 548, 101 S.Ct. 1919. The First Circuit adopts this approach, directing that although § 1983 will not afford relief on á complaint of negligence, if plaintiff can establish a sufficient combination of helplessness on the part of the deceased and wanton callousness on the part of defendant, plaintiff might cross the line from tort to a § 1983 case. Harper v. Cserr, 544 F.2d 1121, 1124 (1st Cir.1976). These elements are present in plaintiff’s complaint. Consequently, plaintiff states a claim under 42 U.S.C. § 1983. Facts outside the complaint reveal outstanding genuine issues of material fact and bar a grant of summary judgment. In light of these disputes and judicial reluctance in granting summary judgment on civil rights actions such as this, Pinto v. Nettleship, 737 F.2d 130 (1st Cir.1984), defendant’s motion is denied.

Accordingly, defendant’s motion for summary judgment on plaintiff’s Count II is denied.

SO ORDERED.

      . The civil rights violations alleged by administratrix are properly founded upon 28 U.S.C. § 1343, as authorized under 42 U.S.C. § 1983.