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Holland v. Sebunya, attorneys and footnotes

For plaintiff:

Rory C. Holland
P O Box 751
Portland, ME 04104

Attorneys for defendants:

John C. Rohde, Esq.
105 Falmouth Street, #3
Portland, ME 04103

James Michael Stovall, Esq.
245 Beechridge Road
Scarborough, ME 04074

Thomas B. Wheatley, Esq.
55 Highland Street
Portland, ME 04103-3042
FOOTNOTES******************************** {1} . Sebunya contends that the meetings of the Executive Committee of the Portland Branch are not open to the public, and non-Executive Committee members can attend only if they are invited by an Executive Committee member and have received prior approval from the President. Holland, however, presented contrary evidence. {2} . Although a member of neither the Executive Committee nor of the Portland Branch, Holland argues on appeal that his appointment as court liaison conferred on him a type of membership status. Holland did not make this argument below. An "issue raised for the first time at the appellate stage will be denied cognizance in the appellate review of the case." See Maine Real Estate Comm'n v. Kelby, 360 A.2d 528, 530 (Me. 1976). {3} . Sebunya's precise job title was "the Cultural Affairs Coordinator for the City of Portland." Although he was a police department employee, Sebunya did not have supervisory authority over any officers. {4} . The decision to call the police was made in accordance with the established procedures of the Portland Branch. {5} . Although Sebunya provides some evidence in support of this contention, and, indeed, bases part of his argument on it, that evidence is contradicted by Holland's evidence that the meeting was open to the public. {6} . Holland has not properly challenged the grant of a summary judgment as to his 42 U.S.C. §§ 1985 & 1986 claims and his prima facie tort claim. He does not mention the sections 1985 and 1986 claims in his brief to this Court. The failure to mention an issue in the brief or at argument is construed as either an abandonment or a failure to preserve that issue. See Atlantic Acoustical & Insulation Co. v. Moreira, 348 A.2d 263, 266 n.1 (Me. 1975); Sard v. Sard, 147 Me. 46, 59, 83 A.2d 286, 293 (1951); J.W. Stevens Ltd. v. Maine Lumber Products Corp., 147 Me. 135, 137, 83 A.2d 925, 926 (1951). Likewise, although Holland lists in his statement of issues a challenge to the grant of summary judgment as to his prima facie tort claim, the section of his brief ostensibly devoted to arguing that point contains only a restatement of the issue followed by a blank page. Even when an argument is mentioned in a "statement of points on appeal," it is nonetheless abandoned when it "was not briefed or argued." See MacArthur v. Dead River Co., 312 A.2d 745, 746 (Me. 1973). {7} . The only rights that have been specifically recognized as protected against private enforcement are "the Thirteenth Amendment right to be free from involuntary servitude, and, in the same Thirteenth Amendment context, the right of interstate travel . . . ." Bray v. Alexandria Women's Health Clinic, 506 U.S. 263, 277 (1993). {8} . In Martinez, there was no state action when an on duty uniformed police officer was "bent on a singularly personal frolic: tormenting an acquaintance." Id. 987. {9} . In Hughes, two county employees had assaulted the plaintiff in retaliation for the plaintiff's testimony before a grand jury regarding the alleged corruption of the state division that employed the employees and the plaintiff. See id. at 184. Though the assault occurred at the work site, the Fourth Circuit refused to find that the employees were state actors because there was no indication that they had used the authority of their positions to assist them in assaulting the plaintiff. See id. at 187. {10} . The 7(d) statements indicated that Chitwood wished to limit Sebunya's advocacy on this point, possibly out of a desire to prevent a challenge to the police by a police employee. {11} . The Court's opinion notes that Holland "does not dispute that, at the time of the expulsion, Sebunya was not acting in his capacity as an employee of the Portland Police Department and was therefore a private actor." (Emphasis added.) The record, however, does not appear to clearly support this proposition as will be discussed in more detail below. As a general matter, the essence of Holland's claim against Sebunya is that Sebunya prevented him from speaking at the Executive Committee meeting because of his position as an employee of the Portland Police Department. {12} . The defendants state in their Rule 7(d) statement of facts, "At no time on the evening of February 13, 1995 was Mr. Sebunya acting in his capacity as Cultural Affairs Coordinator." (Defendants' Rule 7(d) Statement 4.) While this may be true (certainly trying to suppress discussion of a police brutality incident involving a minority would not fall within his duties as Cultural Affairs Coordinator), it is not necessarily helpful in the analysis of whether Sebunya's actions constituted acts under the color of state law for purposes of a § 1983 claim. Rather the necessary determination is whether he was acting as an agent of the state or in conspiracy with one of its agents. Nowhere in his Rule 7(d) statement does Sebunya state that he was not acting as an agent of the police department or in conspiracy with an agent of the police department. {13} . While merely being an employee of the state may not be enough to constitute action under color of state law, acting at the direction of a supervisor arguably is, cf. Van Ort v. Estate of Stanewich, 92 F.3d 831, 838 (9th Cir. 1996) (noting that, in assaulting and attempting to rob plaintiffs, police officer was not acting "pursuant to any government or police goal" and ultimately concluding he was not acting under color of state law) (emphasis added), and, as noted above, even private individuals may be liable pursuant to section 1983 for otherwise private conduct if they engage in it in the course of a conspiracy with a state actor to deprive an individual of a constitutionally protected right. Sebunya's Rule 7(d) statement does not address these issues at all. Furthermore, assuming Sebunya's act of removing Holland from the meeting was based purely on private motivation in order to conclude that he was not acting under color of state law for purposes of section 1983 is begging the question, for that is the very material fact that is in dispute.

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