Calvi v. Knox County

United States Court of Appeals
For the First Circuit

No. 06-1843

MORGAN CALVI,

Plaintiff, Appellant,

v.

KNOX COUNTY ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, U.S. District Judge]
[Hon. David M. Cohen, U.S. Magistrate Judge]

Before

Boudin, Chief Judge,
Selya and Lynch, Circuit Judges.

Eric M. Mehnert, with whom Hawkes & Mehnert and Joseph
Baldacci were on brief, for appellant.
Edward R. Benjamin, Jr., with whom Thompson & Bowie, LLP was
on brief, for municipal appellees.
John J. Wall, III, with whom Monaghan Leahy, LLP was on brief,
for county appellees.

December 11, 2006
 SELYA, Circuit Judge. In this civil rights case, brought

pursuant to 42 U.S.C. § 1983, plaintiff-appellant Morgan Calvi

beseeches us to reverse the entry of summary judgment in favor of

various county and municipal defendants.1 In rapid-fire

succession, she attacks the constitutionality of summary judgment,

the district court's assessment of the evidence, and the court's

concomitant refusal to consider certain claims on the ground that

they were outside the compass of her complaint. Discerning no

error, we affirm.

I. BACKGROUND

The pivotal facts are laid out in considerable detail in

the recommended decision of the magistrate judge, see Calvi v. City

of Rockland, Civ. No. 05-11, 2006 WL 890687 (D. Me. Mar. 31, 2006),

and we assume the reader's familiarity with that decision.

On January 19, 2003, a 911 operator, reacting to a male

caller (later identified as Matthew Hayden) who had locked himself

in his room because a woman was brandishing a knife in his house,

dispatched Officer Kenneth Smith of the Rockland police department

to 89 Talbot Avenue, Rockland, Maine. Several people, most of them

unrelated, lived at that address. Smith was familiar with the

1
Calvi also sued under the Maine Civil Rights Act, Me. Rev.
Stat. Ann. tit. 5, § 4681 et seq. The issues on appeal, however,
have been briefed and argued exclusively in terms of section 1983.
Accordingly, we omit any further reference to the counterpart state
statute.

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locus, having gone there the day before to settle a dispute between

Calvi and another tenant, Kevin Warren.

The dispatcher told Smith that Calvi had been identified

as the knife-wielder. When Smith arrived at the residence, the

landlord (Lawrence Frier) agreed to go inside and find Calvi.

Around the same time, Warren — who had fled the scene — called the

dispatcher and asked if it was safe to go back. Upon learning that

the police were on the premises, he returned and played an

audiotape for Smith. Warren told Smith that four people — he,

Frier, Calvi, and Hayden — were present when the tape was made

inside the dwelling. Apparently, Calvi had begun yelling at Warren

because he "made faces" at her. When Warren (an alleged martial

arts expert) approached Calvi, she snatched a butcher knife from

the sinkboard.

On the tape, Calvi, obviously upset, could be heard

launching a series of accusations at Warren. Frier could be heard

imploring Calvi to be reasonable and, at one point, stating to her:

"Morgan, that's a felony." Warren eventually fled, and Hayden

called the police.

By the time that Frier located Calvi, another officer was

at the scene. Calvi told Smith that she wanted to tell her side of

the story. Smith, however, arrested her on the spot, charged her

with criminal threatening with a dangerous weapon, see Me. Rev.

Stat. Ann. tit. 17-A, § 209, and stated that she could relate her

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version later. Frier gave Calvi bail money and told Smith to be

gentle because she was frail and had recently undergone elbow

surgery.

Smith placed Calvi in handcuffs and double-locked them

behind her back so that they would not tighten. He then marched

her outside, deposited her in his cruiser, and belted her in for

transport to the Knox County jail. Smith's fellow officer,

Sergeant Jeffrey McLaughlin, was at the scene but had no real

interaction with Calvi; McLaughlin spent his time talking with

Warren and Hayden.

When handcuffing Calvi and assisting her into the back

seat of the cruiser, Smith, who had been trained as a paramedic,

did not observe any debilitating condition. He did notice,

however, that Calvi was crying during the five-to-six-minute drive

to the jail. All in all, Calvi was handcuffed for no more than

fifteen minutes.

While Calvi has several disabilities, the only one

relevant here is a birth defect that required surgical

straightening of three of the fingers on her left hand. Although

this disability is painful, it has never prevented Calvi from doing

routine activities such as dressing herself, feeding herself, or

working at Wal-Mart.

Upon arriving at the lockup, Smith transferred custody of

his prisoner to a Knox County correctional officer, Rebecca Gracie.

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Gracie unlocked the handcuffs, patted Calvi down, and placed her in

a holding cell. After other required aspects of the booking

process had been completed, another Knox County officer

fingerprinted Calvi. Gracie was present during the fingerprinting

but had no direct involvement with Calvi at that stage.

Calvi claims that the officer who fingerprinted her

repeatedly pushed her fingers down hard, in spite of being told

that she had a hand deformity. She further claims that the

fingerprinting caused injuries to her wrist and surgically repaired

middle finger. Calvi eventually was released on bail that same

day.

In due course, Calvi brought suit against Smith,

McLaughlin, and Gracie (in each instance alleging excessive force)

and against the City of Rockland, Knox County, and the county

sheriff, Daniel Davey (in each instance alleging secondary

liability, e.g., failure to supervise, failure to train). She did

not sue, and has never sued, the Knox County correctional officer

who fingerprinted her.

Following pretrial discovery, the various defendants

moved for summary judgment. The district court referred the

motions to a magistrate judge, see Fed. R. Civ. P. 72(b), who

recommended that they be granted. See Calvi, 2006 WL 890687, at *

1. Over Calvi's objection, the district judge adopted the

recommended decision and entered summary judgment in favor of all

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defendants.2 See Calvi v. City of Rockland, Civ. No. 05-11, 2006

WL 1139924 (D. Me. Apr. 26, 2006). This timely appeal ensued.

II. THE SUMMARY JUDGMENT STANDARD

It is common ground that appellate review of an order

granting summary judgment is de novo and is confined to the record

that was before the district court. See Mandel v. Boston Phoenix,

Inc., 456 F.3d 198, 204 (1st Cir. 2006). In effecting such review,

the court of appeals must take as true the facts documented in the

record below, resolving any factual conflicts or disparities in

favor of the nonmovant. See Houlton Citizens' Coal. v. Town of

Houlton, 175 F.3d 178, 184 (1st Cir. 1999). The court must draw

all reasonable inferences from the assembled facts in the light

most hospitable to the nonmovant. Id. If — and only if — the

facts, so marshaled, show "that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment

as a matter of law," Fed. R. Civ. P. 56(c), will the entry of

summary judgment be affirmed. See DePoutot v. Raffaelly, 424 F.3d

112, 117 (1st Cir. 2005).

In implementing the summary judgment standard, an issue

is considered genuine if "it may reasonably be resolved in favor of

either party" at trial. Garside v. Osco Drug, Inc., 895 F.2d 46,

48 (1st Cir. 1990). By like token, a fact is considered material

2
Because the district judge and the magistrate judge shared
the same appraisal of the case, we take an institutional view and
refer to the decision below as that of the district court.

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if it possesses "the capacity to sway the outcome of the litigation

under the applicable law." Nat'l Amusements, Inc. v. Town of

Dedham, 43 F.3d 731, 735 (1st Cir. 1995).

Of course, the nonmovant may defeat a summary judgment

motion by demonstrating, through submissions of evidentiary

quality, that a trialworthy issue persists. Celotex Corp. v.

Catrett, 477 U.S. 317, 322-24 (1986). Doing so, however, requires

more than the frenzied brandishing of a cardboard sword. As we

have warned, "a conglomeration of 'conclusory allegations,

improbable inferences, and unsupported speculation' is insufficient

to discharge the nonmovant's burden." DePoutot, 424 F.3d at 117

(quoting Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8

(1st Cir. 1990)).

It is with this standard in mind that we turn to Calvi's

claims of error.

III. THE CONSTITUTIONAL CLAIM

In a broadside directed at the district court proceedings

as a whole, Calvi contends that summary judgment is an

unconstitutional abridgement of her Seventh Amendment right to

trial by jury. That contention is hopeless.

Summary judgment has a unique place in federal civil

litigation. Its "role is to pierce the boilerplate of the

pleadings and assay the parties' proof in order to determine

whether trial is actually required." Wynne v. Tufts Univ. Sch. of

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Med., 976 F.2d 791, 794 (1st Cir. 1992). "The device allows courts

and litigants to avoid full-blown trials in unwinnable cases, thus

conserving the parties' time and money, and permitting courts to

husband scarce judicial resources." McCarthy v. Northwest

Airlines, Inc., 56 F.3d 313, 315 (1st Cir. 1995). So viewed, a

grant of summary judgment does not compromise the Seventh

Amendment's jury trial right because that right exists only with

respect to genuinely disputed issues of material fact. See Harris

v. Interstate Brands Corp., 348 F.3d 761, 762 (8th Cir. 2003).

Not uniquely, the District of Maine's local rules require

the filing, with every motion for summary judgment, of a short and

concise statement of the material facts, with appropriate record

references. See D. Me. R. 56(b). A related rule provides in

pertinent part that "[a] party opposing a motion for summary

judgment shall submit with its opposition a separate, short, and

concise statement of material facts [which] shall admit, deny or

qualify the facts by reference to each numbered paragraph of the

moving party's statement of material facts and unless a fact is

admitted, shall support each denial or qualification by a record

citation." Id. 56(c). Calvi asserts, without any citation to

persuasive authority, that these rules are unconstitutional because

they ensure a trial by paper that, in the final analysis, is no

trial at all. This assertion is baseless.

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 The District of Maine's local rules and similar local

rules in other districts within this circuit were developed in

response to this court's stated concern "that, absent such rules,

summary judgment practice could too easily become a game of cat-

and-mouse." Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000).

Such local rules are useful devices for focusing a district court's

attention on what is — and what is not — genuinely controverted.

Such rules are desirable in other ways as well. For one thing,

they have the capacity to dispel the smokescreen behind which

litigants with marginal or unwinnable cases often seek to hide.

For another thing, they greatly reduce the possibility that the

district court will fall victim to an ambush. Cf. Stepanischen v.

Merchants Despatch Transp. Corp., 722 F.2d 922, 931 (1st Cir. 1983)

(warning that, without such a rule, the justice system risks the

"specter of district court judges being unfairly sandbagged by

unadvertised factual issues").

In view of these considerations and the lack of any

cogent constitutional objection, we have regularly upheld

challenges to the constitutionality and fairness of such local

rules. See, e.g., Cosme-Rosado v. Serrano-Rodriguez, 360 F.3d 42,

45 (1st Cir. 2004); Ruiz Rivera, 209 F.3d at 28; Jaroma v. Massey,

873 F.2d 17, 20 (1st Cir. 1989). Calvi has offered us no sound

reason for revisiting these decisions. Consequently, we hold that

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D. Me. R. 56(b) and (c), like Fed. R. Civ. P. 56 itself, do not

violate the Seventh Amendment.

IV. THE EXCESSIVE FORCE CLAIMS

We turn next to Calvi's excessive force claims. Because

the City of Rockland defendants are situated somewhat differently

from the Knox County defendants, we divide this portion of our

analysis into two segments.

A. The Rockland Defendants.

Counts 1 and 4 of Calvi's complaint allege in substance

that the Rockland police officers used excessive force when

handcuffing Calvi. In order to prevail on such a claim, a

plaintiff must establish that the defendant's actions in

handcuffing her were objectively unreasonable in light of the

circumstances and the facts known to the officer at the time. See

Graham v. Connor, 490 U.S. 386, 397 (1989); Isom v. Town of Warren,

360 F.3d 7, 10-11 (1st Cir. 2004); see also Alexis v. McDonald's

Rest. of Mass., Inc., 67 F.3d 341, 352 (1st Cir. 1995). This

showing must take into account the reasonableness of the officer's

actions, viewed from the perspective of a prototypical officer

confronted with the same or similar circumstances. Graham, 490

U.S. at 396. All of the attendant facts must be considered. See

id. Police work is often carried out in fast-moving and poorly

defined situations, so it is especially unfair to judge an

officer's actions in hindsight. See id. at 396-97.

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 Applying this framework, it is readily apparent that the

entry of summary judgment in Sergeant McLaughlin's favor is

unimpugnable. There is not a shred of evidence that McLaughlin had

anything to do with Calvi's handcuffing. His mere presence at the

scene, without more, does not by some mysterious alchemy render him

legally responsible under section 1983 for the actions of a fellow

officer. See Gaudreault v. Municipality of Salem, 923 F.2d 203,

207 n.3 (1st Cir. 1990).3

The case against Smith is slightly more robust — but not

robust enough to fend off summary judgment. Smith was responding

to news that a civilian had been brandishing a knife in a dangerous

manner. Even if Smith knew that the knife-wielder, Calvi, had a

hand deformity, there is no evidence that he applied any excessive

force. Standard police practice called for cuffing an arrestee's

hands behind her back and Smith's decision not to deviate from this

practice was a judgment call, pure and simple. He handcuffed Calvi

in the customary manner and kept her in handcuffs for no more than

the time reasonably necessary to transport her to the lockup.

3
To be sure, a bystander-officer who has a realistic
opportunity to prevent the use of excessive force by a fellow
officer may in certain circumstances be held liable for a failure
to intervene. See, e.g., Martinez v. Colon, 54 F.3d 980, 985 (1st
Cir. 1995) (explaining that "police officers sometimes have an
affirmative duty to intervene that is enforceable under the Due
Process Clause"); Gaudreault, 923 F.2d at 207 n.3 (similar). Here,
however, Calvi did not timely charge McLaughlin with a failure to
intervene. See Part V, infra.

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 That is the end of the story. The totality of the

circumstances affords no legally sufficient basis for a finding

that Smith's handcuffing of Calvi represented a constitutionally

proscribed use of excessive force. Cf. Jackson v. City of

Bremerton, 268 F.3d 646, 653 (9th Cir. 2001) (concluding that

officer did not use excessive force in pushing suspect to the

ground and kneeling on her back, notwithstanding the suspect having

complained of preexisting injuries). Accordingly, the district

court did not err in granting summary judgment for Smith.

In addition to her claims against the two individual

members of the Rockland police department, Calvi attempts to hold

the City of Rockland responsible for the officers' alleged use of

excessive force. She argues that Rockland should be held liable

under section 1983 because it failed adequately to train its police

force.4 This argument is unavailing.

With respect to an allegation of failure to train,

liability ordinarily may be found "where the municipality fails to

provide adequate training notwithstanding an obvious likelihood

that inadequate training will result in the violation of

constitutional rights." Whitfield v. Meléndez-Rivera, 431 F.3d 1,

4
Calvi originally made a related argument: that the City had
a policy or custom that led to the violation of her civil rights.
She now backpedals, conceding that the Rockland police department
had adopted an appropriate policy for handcuffing disabled
individuals. Before us, she seeks to hold the City liable based
only on its alleged failure adequately to train Smith.

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10 (1st Cir. 2005). Showing that a single individual received

inadequate training is insufficient for municipal liability to

attach; the training program as a whole must be found faulty. See

City of Canton v. Harris, 489 U.S. 378, 390-91 (1989).

Here, Calvi has not presented a scintilla of evidence

demonstrating that Rockland's police force, overall, is

inadequately trained in how to handcuff disabled suspects. The

only record evidence is to the contrary: Rockland's officers must

attend the Maine Criminal Justice Academy, and training in

arresting individuals with physical disabilities is part of the

Academy's core curriculum.

We need not probe this point too deeply for — regardless

of the training afforded or the lack of training — it is only when

a governmental unit's employee inflicts a constitutional injury

that the governmental unit can be held liable under section 1983.

See Evans v. Avery, 100 F.3d 1033, 1039 (1st Cir. 1996). It

follows that the inadequate training of a police officer cannot be

a basis for municipal liability under section 1983 unless a

constitutional injury has been inflicted by the officer or officers

whose training was allegedly inferior. See Young v. City of Prov.

ex rel. Napolitano, 404 F.3d 4, 25-26 (1st Cir. 2005).

That ends this aspect of the matter. As explained above,

Calvi has utterly failed to generate a trialworthy issue as to the

use of excessive force in the handcuffing process by either Smith

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or McLaughlin. Since no Rockland police officer inflicted a

constitutional injury on Calvi, she cannot hold the City liable

under section 1983 for its officers' alleged lack of training.

B. The Knox Defendants.

Calvi claims that Knox County and its officers should be

held liable because of excessive force used during booking (and,

especially, during fingerprinting). This claim need not detain us.

Calvi never sued the officer who actually fingerprinted

her. Instead, her excessive force claim is directed at Gracie

(who, although a supervisory officer, was a mere observer of the

fingerprinting). Absent evidence of participation, concerted

action, or at least culpable knowledge, one officer cannot be held

jointly liable under section 1983 for another officer's use of

excessive force. See, e.g., Gaudreault, 923 F.2d at 207 n.3; see

also Monell v. Dep't of Social Servs., 436 U.S. 658, 692-94 (1978)

(holding that respondeat superior is inapplicable in section 1983

cases). There is no such evidence in this record. Thus, the

district court did not err in entering summary judgment in Gracie's

favor.

This leaves the claim against Knox County.5 The facts of

record, viewed in the light most favorable to Calvi, demonstrate

5
Although Sheriff Daniel Davey has been sued, Calvi
acknowledges that she sued him only in his official capacity. A
suit against a public employee in his official capacity is a suit
against the individual's employer, here, Knox County. See Will v.
Mich. Dep't of State Police, 491 U.S. 58, 71 (1989).

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that Knox County had in place an appropriate policy for

fingerprinting disabled persons. Even if that policy was not

followed in this instance, as Calvi alleges, that omission,

standing alone, would not amount to a constitutional violation

attributable to the county. See St. Hilaire v. City of Laconia, 71

F.3d 20, 29 (1st Cir. 1995).

There is, moreover, no evidence of any pervasive failure

to train county law enforcement officers in the implementation of

the county's fingerprinting policy. For that matter, there is no

evidence that the officer who actually fingerprinted Calvi lacked

proper training.

To say more on this point would be supererogatory. The

upshot is that the district court correctly concluded that the Knox

County defendants were entitled to summary judgment.

V. THE UNPLED CLAIMS

There is one more leg to our journey. Calvi objects to

the district court's determination that she failed properly to

plead certain claims (and, therefore, waived them). We turn now to

that objection.

The essential facts are as follows. In her opposition to

the defendants' motions for summary judgment, Calvi for the first

time asserted a false arrest claim against Smith and failure to

intervene claims against McLaughlin and Gracie. None of these

newly minted claims had been articulated, or even vaguely

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insinuated, in Calvi's complaint. The magistrate judge deemed the

claims waived, Calvi, 2006 WL 890687, at *7, and the district judge

agreed.

Calvi argues, in effect, that the Civil Rules require

only notice pleading, and that notice of the incident subsumes

within it notice of any and all claims arising out of the described

nucleus of operative facts. The first part of her premise is

correct; this court has held that there are no heightened pleading

standards for civil rights cases and that, therefore, notice

pleading rules apply to such actions. See Educadores

Puertorriqueños en Acción v. Hernández, 367 F.3d 61, 66-67 (1st

Cir. 2004). Thus, a plaintiff's complaint need only contain "a

short and plain statement of the claim showing that the pleader is

entitled to relief." Id. at 66 (citing Fed. R. Civ. P. 8(a)(2)).

The second part of Calvi's premise is incorrect. Notice

pleading rules do not relieve a plaintiff of responsibility for

identifying the nature of her claim. See Gooley v. Mobil Oil

Corp., 851 F.2d 513, 514 (1st Cir. 1988) (explaining that although

the requirements of Rule 8(a)(2) are minimal, "minimal requirements

are not tantamount to nonexistent requirements"). Consequently,

the statement of claim must, at a bare minimum, "give the defendant

fair notice of what the plaintiff's claim is and the grounds upon

which it rests." Educadores, 367 F.3d at 66 (quoting Conley v.

Gibson, 355 U.S. 41, 47 (1957)). This means that, in a civil

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rights action, as in any other civil action subject to notice

pleading requirements, the statement of claim must "at least set

forth minimal facts as to who did what to whom, when, where, and

why." Id. at 68.

As the district court recognized, Calvi's complaint

offends these rudimentary principles insofar as her unpled claims

are concerned. In her complaint, she alleges that "with reckless

and deliberate disregard for [her] rights," Smith "physically

abuse[d] her and treat[ed] her cruelly and callously, using force

far in excess of that necessary under the circumstances, all in

violation of her rights." This language is sufficient to plead an

excessive force claim but not a false arrest claim. At no point in

the complaint did Calvi say anything to place Smith on notice that

she was claiming false arrest.

Calvi's argument that her false arrest claim is implicit

in her excessive force claim lacks merit. Other courts have held

that an excessive force claim is not implicit in a false arrest

claim but, rather, must be stated distinctly. See, e.g., Bashir v.

Rockdale County, 445 F.3d 1323, 1331-32 (11th Cir. 2006); cf.

Iacobucci v. Boulter, 193 F.3d 14, 19 (1st Cir. 1999) (recognizing

that false arrest and excessive force are separate and distinct

claims). We think that the reverse is equally true: a false arrest

claim is not implicit in an excessive force claim but, rather, must

be stated distinctly.

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 Much the same is true of Calvi's nascent failure to

intervene claims. Her complaint named McLaughlin and Gracie as

defendants but limned only claims of excessive force against them.

Neither a duty to intervene nor a breach of that duty was alluded

to in any way, shape, or form. Calvi's argument rests, therefore,

on the proposition that a failure to intervene claim is implicit in

an excessive force claim directed at multiple defendants. We

reject that proposition.

The short of it is that, as the district court held,

Calvi was not entitled to raise new and unadvertised theories of

liability for the first time in opposition to a motion for summary

judgment. See Torres-Rios v. LPS Labs., Inc., 152 F.3d 11, 15-16

(1st Cir. 1998).

VI. CONCLUSION.

We need go no further. For the reasons elucidated above,

we uphold the district court's entry of judgment in the defendants'

favor.

Affirmed.

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