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UNITED STATES DISTRICT COURT DISTRICT OF MAINE

ARTHUR D. GOLDSTEIN, Plaintiff v. MARGOT JOLY, et al., Defendants

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Civil No. 98-0103-B

RECOMMENDED DECISION This action arises out of a contract between Plaintiff and James Boutilier under which Boutilier was to perform remodeling upon Plaintiff's property in Rangeley Plantation, Maine. In the most general terms, Plaintiff became dissatisfied with Boutilier's progress and billing, and the situation worsened to the point Boutilier contacted the police and complained that Plaintiff was refusing to permit Boutilier to collect his belongings from the job site. Plaintiff's home was searched, and items were seized. Some of the items belonged to Plaintiff and were thereafter returned to him. Plaintiff was charged with theft, which charges were later dismissed. Defendants Franklin County, Niles Yeaton, Raymond Meldrum, Lee Dalrymple, David Simpson, Thomas White, and Steven Lowell move for summary

judgment on the entirety of Plaintiff's Complaint. The individual Defendants are all members of the Franklin County Sheriff's Department.1 Discussion Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any 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). The Court views the record on summary judgment in the light most favorable to the nonmovant. Levy v. FDIC, 7 F.3d 1054, 1056 (1st Cir. 1993). "A trialworthy issue exists if the evidence is such that there is a factual controversy pertaining to an issue that may affect the outcome of the litigation under the governing law, and the evidence is `sufficiently open-ended to permit a rational factfinder to resolve the issue in favor of either side.'" De-Jesus-Adorno v. Browning Ferris Ind. Of Puerto Rico, 160 F.3d 839, 841-42 (1st Cir. 1998) (quoting National Amusements v. Town of Dedham, 43 F.3d 731, 735 (1st Cir. 1995)). However, summary judgment is appropriate "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's

The remaining Defendants were granted judgment on separate motions by Order Affirming the Recommended Decisions, filed September 21, 1999. 2

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case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once the moving party has presented evidence of the absence of a genuine issue, the nonmoving party must respond by "placing at least one material fact in dispute." Anchor Properties, 13 F.3d at 30 (citing Darr v. Muratore, 8 F.3d 854, 859 (1st Cir. 1993)). Plaintiff has not responded to Defendants' Motion for Summary Judgment. In this District, a party's failure to timely respond to a motion is generally construed to waive objection to the motion. D. Me. R. 7(c). However, the Federal Rules of Civil Procedure require us to examine the merits of a motion for summary judgment regardless of the opposing party's failure to object. FDIC v. Bandon Assoc., 780 F. Supp. 60, 62 (D. Me. 1991). Accordingly, we will examine the merits of Defendants' Motion for Summary Judgment based on Defendants' Statement of Material Facts, which reads in its entirety as follows: Statement of Facts Sometime before July of 1995, Plaintiff and James Boutilier entered into some type of arrangement whereby Boutilier was to perform renovations on Plaintiff's Rangeley Plantation residence and Plaintiff was to pay Boutilier for those renovations. That relationship soured and eventually, on July 9, 1995, Goldstein and Boutilier disagreed as to whether Boutilier was entitled to recover his construction tools and certain other material from Goldstein's residence.[] Goldstein made a complaint to the Franklin County Sheriff's Office to the effect that he had refused Boutilier's request to retrieve his (Boutilier's) carpentry
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tools and materials and that Boutilier had stated that he would break Goldstein's door down to get the tools if necessary.[] Sheriff's Deputy Raymond Meldrum responded to Goldstein's complaint and was met at Goldstein's residence by Goldstein and by Boutilier and Nathan Bean, a police officer from the Rangeley Police Department. Meldrum spoke with Goldstein and Goldstein stated that he had placed a "lien" on Boutilier's tools and that Boutilier had no right to remove them until the disagreement between Goldstein and Boutilier was resolved.[] Meldrum used his cellular phone to call Franklin County District Attorney Norman Croteau and was advised by Croteau to tell Goldstein that if he did not release Boutilier's tools, Goldstein could be charged with theft.[] Meldrum relayed this message to Goldstein, and Goldstein became irate and threatened to sue Meldrum, Croteau, and others.[] Goldstein then stated that Boutilier could have his (Boutilier's) tools, but that he (Goldstein) would not allow anybody onto the property to remove the tools and would not bring them out himself.[] Because of Goldstein's refusal to relinquish control over Boutilier's property, and because of the remote location and lack of assistance, Meldrum left the Goldstein residence.[] Meldrum communicated to his superior, Det. Sgt. Niles Yeaton, all that had transpired.[] On approximately July 11, 1995, Yeaton advised Sheriff's Deputy Steven Lowell of the information furnished by Meldrum, and asked Lowell to go to the Goldstein residence and explain to Goldstein that if he did not release Boutilier's tools, Goldstein would likely be charged with theft.[] Lowell did so, but Goldstein continued in his refusal to turn over Boutilier's tools.[] Lowell reported to Yeaton what had transpired.[] Yeaton met with Boutilier and Boutilier provided a specific list of each item of property that was left at the Goldstein residence, including specific descriptions of each such item of property.[] Additionally, Boutilier provided a statement as to the value of each item of property.[] Yeaton subsequently advised Boutilier that Goldstein claimed that certain items of property were actually Goldstein's (some building materials, pump jacks and roof brackets). Boutilier

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subsequently reaffirmed that all of the items on the personal property list were his.[] Yeaton knew Deputies Lowell and Meldrum to be reliable sources of information. Each of those individuals reported to Yeaton that Goldstein had admitted, implicitly and expressly, that he was holding Boutilier's tools.[] With the exception of the three categories of property referenced above, Goldstein never claimed ownership to the items on Boutilier's list, and never denied that Boutilier owned those items, but rather insisted that he had a right to retain control over them pursuant to some sort of "lien" until his dispute with Boutilier was resolved.[] Additionally, Yeaton believed that Boutilier's statement was reliable because (1) Boutilier was able to describe the items in question with specificity and (2) Boutilier gave a written statement to Yeaton acknowledging, in writing, that any false statements were punishable pursuant to 17-A [M.R.S.A.]

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