1983 and 80B, or what am I missing?

Practice area:

The Maine SJC issued a decision in November in a civil rights case consistent with a line of authority in which the result appears right to me, but the way the Court gets there makes me scratch my head.  Marshall v. Town of Dexter, 2015 ME 135

In Marshall, the plaintiff appealed from a dismissal of a civil rights action for failure to state a claim.  The gist of the allegations was that the town’s actions in stopping the development of his property (the ceo issuing stop work orders) violated 42 U.S.C. § 1983 because the town conduct was allegedly arbitrary and capricious and a deprivation of equal protection of law.  He sought injunctive relief. 

The SJC (Saufley, CJ.), affirmed the dismissal on the basis that (1) the complaint did not allege that the ceo’s actions were tied to any official policy of the town, and (2) failure to exhaust administrative remedies.  The Court then goes on to talk about how the doctrine of exhaustion of administrative remedies requires a party to seek administrative relief before initiating action in the courts.

There are other Law Court cases that reject 1983 claims on the ground that the plaintiff must exhaust administrative remedies, referencing Maine’s “exclusivity” rule, which basically says if you can get your relief under Rule 80B, then that’s your exclusive avenue of redress.  E.g., Antler’s Inn & Rest., LLC v. Dep’t of Pub. Safety, 2012 ME 143, ¶ 14, 60 A.3d 1248 and Gorham v. Androscoggin Cnty, 2011 ME 63, ¶ 22, 21 A.3d 115; Bushey v. Town of China, 645 A.2d 615, 619 (Me. 1994) (“Because the Busheys had an adequate state law remedy [through Rule 80B] for any alleged violation by the Town of their civil rights, they are precluded from seeking a federal remedy pursuant to Title 42 U.S.C. § 1983.”). 

Section 1983 is a federal cause of action.  In Patsy v. Board of Regents, 457 U.S. 496 (1982), the Supreme Court held that a plaintiff does not have to exhaust administrative remedies before suing under the civil rights act.  The Law Court previously appears to have acknowledged this general principle.  Levesque v. Commissioner, Dept. of Human Services, 508 A.2d 943, 948, n. 3 (Me. 1986) (“Moreover, since this matter arises under a complaint based on 42 U.S. C. § 1983, the plaintiff is not required to exhaust her administrative remedies,” citing Patsy.); Jackson v. Inhabitants of Town of Searsport, 456 A.2d 852 n. 20 (Me. 1983) (“After Patsy … it is clear that no exhaustion of state administrative remedies would be necessary prior to the institution of suit in federal court.”).

Hence, I am having a hard time reconciling some of the Law Court’s language about exhaustion and its exclusivity rule and the holding in Patsy.

In the end, whether the exclusivity rule applies or not in these cases doesn’t affect the ultimate outcome – dismissal – because the claims appear not to state a claim for other reasons.  For example, the vast majority of time, the constitutional violation claimed in a land use case is procedural due process.  These generally fail because the action complained of is random (e.g., the board ruled against them), and the Supreme Court has ruled that you don’t need pre-deprivation process for random acts.  Parratt v. Taylor, 451 U.S. 527, 538-544 (1981), overruled in part on other grounds by Daniels v. Williams, 474 U.S. 327 (1986); Nestor Colon Medina & Sucesores Inc. v. Custodio, 964 F.2d 32, 40 (1st Cir. 1992) (claim that “officials, acting under the malign influence of the governor and other politicians, violated and abused” review procedures failed under Parratt).

In Marshall, the plaintiff claimed a violation of equal protection, not due process (although the first count, “arbitrary and capricious,” could be translated as a claim of a procedural violation).  My guess is that the plaintiff is not from a suspect class, and the claim would fail for failure to allege facts showing a civil rights violation.  That basis for dismissal requires examining the factual allegations, and might raise the issue whether in Maine courts the federal standard for pleading set forth in Ashcroft v. Iqbal, 556 U.S. 662 (2009) applies – an issue that to my knowledge has never been ruled on by the Law Court.

As to the first ground for dismissal in Marshall, this relates to the Supreme Court’s ruling in Monell v. Dep’t of Social Services of NY, 436 U.S. 658, 691 (1978).  Monell basically eliminates respondeat superior liability in civil rights claims.  That doesn’t mean you can’t sue the individual government worker (e.g., the police officer) allegedly violating that right through random action.  It appears, however, that in Marshall, the plaintiff sued the town, not the ceo.  So I can understand the first ground for the Court’s ruling in Marshall.

Finally, the plaintiff in Marshall only seemed to be asking for injunctive relief, which avoided the whole damages issue, and whether the Law Court would find the exclusivity rule applies when damages are sought, since that remedy is not available under Rule 80B.

What does all this mean as a practical matter?  It seems to me:


  •  don’t sue under Section 1983 in any court, state or federal, if you are complaining about a random act unless or until you have pursued available post-deprivation administrative relief. 

  • if you are the defendant to Section 1983 claim in state court, then I suppose you cite the exclusivity rule, as well as any other ground you have for failure to state a claim.  I may not understand why that rule applies, but I am not the Court – it’s what those folks think that matters;       

  • Third, if you are a plaintiff even asserting something other than a procedural due process violation as the constitutional deprivation, then don’t sue in state court if you could have sought administrative relief and didn’t.  Go to federal court.  On the other hand, if you sue in federal court and it is a land use case, there is lots of First Circuit law rejecting that Section 1983 claims in land use cases, applying essentially a vigorous application of an Iqbar.  So you’d better have a good fact basis for the suit and plead them in detail. 

And if anyone can reconcile the Law Court’s application of the exclusivity rule in Section 1983 and Patsy, please let me know.  I await edification.