No. 98-2235 PHILLIP NAPIER, Plaintiff, Appellant, v. TOWN OF WINDHAM, RICHARD LEWSEN, RICHARD RAMSDELL, AND RONALD RAMSDELL, Defendants, Appellees. --APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE [Hon. D. Brock Hornby, U.S. District Judge] -Before Torruella, Chief Judge, Campbell, Senior Circuit Judge, and Boudin, Circuit Judge. Stuart W. Tisdale, Jr., with whom Mary A. Davis and Tisdale & Davis, P.A. were on brief, for appellant. William R. Fisher, with whom William R. Fisher, P.A. was on brief, for appellee. August 6, 1999 TORRUELLA, Chief Judge. Plaintiff-appellant Phillip Napier was shot by defendant-appellee Ronald Ramsdell ("Ronald") of the Windham Police Department during a response call at Napier's home by Ronald and his brother, defendant-appellee Richard Ramsdell ("Richard"). Napier brought suit against the Ramsdells, the Town of Windham, Maine ("the Town"), and Chief of Police Richard Lewsen, alleging state and federal civil rights claims and state law claims for assault, battery, and negligence. The district court adopted the magistrate's recommendation of summary judgment in favor of all defendants on all claims, and Napier appeals. We affirm in part and reverse in part. BACKGROUND On April 19, 1995, Phillip Napier was at his home, a converted hunting camp on the shores of Highland Lake in Windham, Maine. At approximately 6:00 p.m., Napier fired a rifle several times from his porch into a woodpile about fifteen feet away. A neighbor shouted to Napier and asked what was happening, to which Napier responded that he was getting rid of some old ammunition. The neighbor walked back inside his own house, and Napier continued to shoot into the woodpile. Meanwhile, the Windham Police Department received at least one telephone call from Napier's neighbors, complaining that Napier was firing a weapon from his home. Officer Richard Ramsdell responded to the complaint by driving to Napier's house. While driving, he radioed his brother, Sergeant Ronald Ramsdell, and asked for backup assistance. The police dispatcher told both officers that Napier was "possibly 1044," the code for "mentally disturbed." Richard arrived first at Napier's house and parked his car partially in Napier's driveway. This is where the parties' versions of the events diverge. Defendants claim that Richard cautiously approached Napier's home with his sidearm holstered and determined that Napier was not outside the house. Richard then waited for Ronald to arrive, at which time Richard walked toward the open front door with his hand on his still-holstered sidearm. Richard yelled, at least twice, "Police department, Phil, are you here?" Richard claims that he looked inside Napier's home and saw a rifle lying on a table and a hand holding a weapon extending out of a doorway inside the house. Richard then repeatedly shouted, "Police, drop the gun," but Napier did not do so. Instead, Napier walked toward Richard with his gun at his hip, pointed at Richard. Concerned for his safety, Richard jumped over a woodpile on the porch and continued to instruct Napier to drop the gun. Napier then stepped into the doorway, still holding the gun. From the driveway, Ronald saw Napier enter the doorway with a gun, so Ronald also shouted, "Police, drop the gun." Defendants claim that Napier leaned over the woodpile and pointed his gun at Richard, inducing Richard to run around the corner of Napier's house and to fire a shot at Napier while he ran. Ronald claims that when Napier raised his weapon toward Richard, Ronald fired a burst of three rounds at Napier. Ronald asserts that Napier then turned toward him with his gun still raised, so Ronald fired three more rounds at him. Napier was struck by one or more of the bullets and fell onto a bed just inside his front door. The Ramsdells then subdued Napier and placed him under arrest. Napier disputes this version. According to Napier, Richard attempted to conceal his presence by parking only partially in Napier's driveway and by skirting the house so as not to be detected. Napier claims that Richard did not announce his presence and carefully crept towards the front door with his gun drawn. Napier claims that he stepped out of a sideroom in his house, carrying a .22 revolver in his right hand, pointed downward. Napier then saw Richard standing in his doorway, pointing his gun at Napier. Napier says that he did not point his gun at Richard, but that he did step backwards and lose his balance. Panicking, Richard then jumped over or through a woodpile on the porch and fired a bullet at Napier, even though Napier did not raise his gun or fire a shot. The bullet missed, but Napier immediately came under fire from Ronald Ramsdell, who was standing in the driveway. Ronald fired two bursts of three bullets at Napier, who was hit by shots from the second burst. Napier fell onto a bed just inside the door of his house and pleaded with the officers not to shoot him again. The officers handcuffed Napier and asked him why he shot at them. Napier, falling in and out of consciousness, heard one of the Ramsdells say to the other, "Don't let anyone in." These disputed accounts first hit the courtroom in Napier's criminal trial. Napier was indicted on five charges arising out of the incident: (1) recklessly creating a substantial risk of serious bodily injury to Richard with a dangerous weapon; (2) intentionally or knowingly placing Richard in fear of imminent bodily injury with a dangerous weapon; (3) discharging a firearm within 100 yards of a dwelling; (4) intentionally or knowingly placing Ronald in fear of imminent bodily injury with a dangerous weapon; and (5) recklessly creating a substantial risk of serious bodily injury to Ronald with a dangerous weapon. Following a jury trial, Napier was convicted of discharging a firearm near a dwelling and of criminal threatening and reckless conduct with regard to Richard Ramsdell, but he was acquitted of the criminal threatening and reckless conduct charges with regard to Ronald Ramsdell. Napier's appeal of his convictions was denied. See State v. Napier, 704 A.2d 869 (Me. 1998). On April 19, 1997, Napier filed the present action, alleging six causes of action against Lewsen, the Ramsdells, and the Town. In Count I, Napier claimed under 42 U.S.C. § 1983 that the Ramsdells used excessive force against him in violation of his Fourth Amendment rights. In Counts II and III, Napier alleged that the Town and Chief Lewsen, respectively, were also liable under § 1983 because they failed to properly train and supervise the Ramsdells in the use of deadly force. Count IV alleged that Lewsen and the Ramsdells were liable for Napier's injuries under the state law theories of assault, battery, and negligence. Count V alleged that the Town was vicariously liable for the negligence of Lewsen and the Ramsdells. Finally, Count VI alleged that all defendants were liable under Maine civil rights law "on the same basis that all defendants [we]re liable under . . . § 1983." Proceedings in this action were stayed until the resolution of Napier's criminal appeal on January 8, 1998. Following discovery, all defendants moved for summary judgment. On August 19, 1998, Magistrate Judge David M. Cohen issued a recommended decision on defendants' motion, recommending the entry of summary judgment in favor of all defendants on all counts. On September 8, 1998, Napier filed his objections to the recommended decision and a memorandum of law opposing summary judgment. In a two-page order issued on October 1, 1998, Chief District Judge D. Brock Hornby adopted the recommended decision and granted defendants' motion for summary judgment in its entirety. Judgment entered the following day, and Napier filed a timely notice of appeal.
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