Bloomquist v. Albee (421 F. Supp. 2d 162, 2006)

ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE

SINGAD, Chief Judge.

The United States Magistrate Judge filed with the Court on January 9, 2006, her Recommended Decision (Docket No. 309). Plaintiff filed his Objection to the Recommended Decision (Docket No. 323) on February 21, 2006. Defendants Dion, Joyce, Downs and Cumberland County, filed their Response to Objection to Recommended Decision (Docket No. 326) on March 8, 2006.

I have reviewed and considered the Magistrate Judge’s Recommended Decisions, together with the entire record; I have made a de novo determination of all matters ■ adjudicated by the Magistrate Judge’s Recommended Decisions; and I concur with the recommendations of the United States Magistrate Judge for the reasons set forth in her Recommended Decision and determine that no further proceeding is necessary.

1. It is therefore ORDERED that the Recommended Decision (Docket No. 309) of the Magistrate Judge is hereby AFFIRMED.

2. The Motion for Summary Judgment (Docket No. 260) is GRANTED to Cumberland County, Mark Dion, Kevin Joyce and Dan Downs on all of Plaintiffs counts against them in this action.

RECOMMENDED DECISION ON COUNTY DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT [Docket No. 260]

KRAVCHUK, United States Magistrate Judge.

Defendants Mark Dion, Kevin Joyce, Dan Down and Cumberland County move for summary judgment (Docket No. 260) in this civil rights action filed by William Bloomquist. I recommend that the Court grant the motion as to all the counts against these four defendants for the reasons set forth below.

Discussion

Late Filed Statement of Fact and Statement of Additional Fact

Bloomquist began filing his reply statement of fact and his statement of additional facts close to midnight of September 7, 2005, and completed the electronic transaction at two minutes past 12:00 a.m. on September 8, 2005. (Receipt, Docket No. 284.) On September 6, 2005, Bloomquist moved for an extension of his time for filing these pleadings because this Court’s ECF and Pacer services were scheduled for a test conversion and would not be available between 5:00 p.m. and 12:00 a.m. on September 6, 2005, and these pleadings were to be filed by September 6, 2001. This Court entered an order giving Bio-omquist an extension until noon on September 7, 2005 (Docket No. 276) — an allowance which more than compensated Bloomquist for the seven hours he perceived he was loosing .due to the scheduled test-conversion. I also note that Bloom-quist was extremely tardy in filing several of his attachments with the Court, with several of these attachments being added as late as September 28, 2005.

The defendants now object to Bloom-quist’s statement of additional fact on the grounds that they were untimely filed and ask that the court not consider these facts. They also note that Bloomquist’s response to their statement of facts was likewise untimely. Although this approach is more fair to Bloomquist than to the defendants, I have considered Bloomquist’s responsive statement of facts and have disregarded his statement of additional facts.

Summary Judgment Standard

The defendants are entitled to summary judgment 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 they are “entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A fact is material if its resolution would “affect the outcome of the suit under the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), and the dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” id. I review the record in the light most favorable to Bloomquist and I indulge all reasonable inferences in his favor. See Feliciano de la Cruz v. El Conquistador Resort & Country Club, 218 F.3d 1, 5 (1st Cir.2000) (emphasis added).

The fact that Bloomquist is a pro se plaintiff does not free him from the pleading burden set forth in Rule 56. See Parkinson v. Goord, 116 F.Supp.2d 390, 393 (W.D.N.Y.2000) (“[Pjroceeding pro se does not otherwise relieve a litigant of the usual requirements of summary judgment, and a pro se party’s bald assertions, unsupported by evidence, are insufficient to overcome a motion for summary judgment.”); see also Sirois v. Prison Health Servs., 233 F.Supp.2d 52, 53-55 (D.Me.2002). While Bloomquist’s complaint may be held to a less stringent pleading standard under Haines v. Kerner, 404 U.S. 519, 520, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972), his pro se status does not shield him from Rule 56’s operative provision under subsection(e) requiring the pleader to “set forth such facts as would be admissible in evidence.”

Bloomquist has already faced multiple motions for summary judgment in this case and he is familiar with the local rules governing summary judgment pleadings. Subsection (c) of the District of Maine Local Rule provides:

A party opposing a motion for summary judgment shall submit with its opposition a separate, short, and concise statement of material facts. The opposing statement 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 as required by this rule. The opposing statement may contain in a separate section additional facts, set forth in separate numbered paragraphs and supported by a record citation as required by subsection (e) of this rule.

Subsection (e) directs:

Statement of Facts Deemed Admitted Unless Properly Controverted; Specific Record of Citations Required Facts contained in a supporting or opposing statement of material facts, if supported by record citations as required by this rule, shall be deemed admitted unless properly controverted. An assertion of fact set forth in a statement of material facts shall be followed by a citation to the specific page or paragraph of identified record material supporting the assertion. The court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. The court shall have no independent duty to search or consider any part of the record not specifically referenced in the parties’ separate statement of facts.

Dist. Me. Loe. R. 56(e).

The County Defendants’ Material Facts

According to the defendants, on November 26, 2001, Katariina Pulkkinen reported assaults and bizarre behavior by her husband, William Bloomquist. (Defs.’ SMF ¶ 1.) Bloomquist qualifies this assertion by indicating that it was Pulkkinen’s Attorney who contacted the police department and relayed a “lurid story of seventeen murders, rooms and rooms full of guns and ammunition, etc.” (Resp. SMF ¶ 1; Docket No. 284 Ex. 1.)

There is no dispute that .during her interview with Detective Daniel Down, Pulk-kinen reported that she and Bloomquist lived at a residence on Sunrise View Road in Baldwin, Maine, that she owned “the Baldwin residence,” (Defs.’ SMF ¶ 2; Down Aff. Aug. 4, 2005 Aff. ¶¶ 11,26 & Ex. 2), and that Pulkkinen was, in fact, the record title holder of the Baldwin residence (Defs.’ SMF ¶ 3; Resp. SMF ¶3). Bloomquist adds that Pulkkinen told Down that a basement room containing various weapons and ammunition and another room were locked and only Bloomquist had access to these rooms. (Resp. SMF ¶ 2; Down Aug. 4, 2005, Aff. Ex. 2 at 7.)

There is no genuine dispute that Pulkki-nen told Down that she had been hit and pushed by Bloomquist numerous times over the preceding months and Pulkkinen told Down that Bloomquist’s assaults sometimes involved weapons, such as a flash light, a stun gun, and a shower rod. (Defs.’ SMF ¶¶ 4, 5; Down Aff. Aug. 4, 2005, ¶¶ 5,11 & Ex. 2.)

Pulkkinen was able to provide Down with details concerning these incidents— including when exactly they occurred and what types of weapons were used when— after she gained entrance to the Baldwin residence. (Defs.’ SMF ¶ 6; Down Aug. 4, 2005, Aff. ¶ 6.) Pulkkinen told Down that Bloomquist had told her that he had killed seventeen people. (Defs.’s SMF ¶ 7; Down Aug. 4, 2005, Aff. ¶¶ 5, 11 & Ex. 2.) Pulkkinen also reported that Bloomquist had pointed out an obituary to her of a person named Eric Bunker and stated to her that he had killed Mr. Bunker. (Defs.’s SMF ¶ 8; Down Aug. 4, 2005, Aff. ¶¶ 5, 11 & Ex. 2.) There is no genuine dispute that Pulkkinen told Down that Blo-omquist was a convicted felon from Connecticut. (Defs.’s SMF ¶ 9; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2; Resp. SMF ¶ 9.)

There is no genuine dispute about the following. Pulkkinen told Down that Blo-omquist had failed the Maine Bar Examination ten times since graduating from law school. (Defs.’ SMF ¶ 10; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2.) She also told Down that Bloomquist had a gun room in the basement of the Baldwin residence (and Pulkkinen showed Detective Down a picture of her in the gun room) and that some of the guns kept there were operational. (Defs.’ SMF ¶ 11; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2.) She told Down that Bloomquist owned a tank that was being repaired in Bridgton, (Defs.’ SMF ¶ 12; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2); that Bloomquist had licenses for his weapons, (Defs.’ SMF ¶ 13; Down Aug. 4, 2005, Aff. ¶ 13 & Ex. 2); that the gun room is hidden behind a bookcase and that its door is locked and booby-trapped with something that will make a loud bang if the door is opened (Defs.’ SMF ¶ 14; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2); that the gun room was rigged with a mechanism — one detective described as a “novelty-style dime store popper”- — -that would make a loud bang if the door was opened (Defs.’ SMF ¶ 15; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2; Resp. SMF ¶ 15; Docket No. 284, Ex. 3), that Bloomquist had been smoking marijuana and had been growing five marijuana plants in the basement of the Baldwin residence. (Defs.’ SMF ¶ 16; Down Aug. 4, 2005, Aff. ¶¶ 5, 11 & Ex. 2); that she had gained access to the gun room and had taken photographs (and she provided the roll of film with the photos to Detective Down). (Defs.’ SMF ¶ 17; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2); that Bloomquist took numerous medications, including Zolof, Adarol and Ritalin. (Defs.’ SMF ¶ 18; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2); that Bloomquist had been behaving erratically since the suicide of a Mend about two years before. (Defs.’ SMF ¶ 19; Down Aug. 4, 2005, Aff. ¶¶ 5, 11 & Ex. 2); that she had discovered Bloomquist cross-dressing about two months before, that he wears her clothes, and that he had been pressuring her to put make-up on him. (Defs.’ SMF ¶ 20; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2); and that “she made Bloomquist hit her because she said she would report him to the police.” (Defs.’ SMF ¶ 21; Down Aug. 4, 2005, Aff. ¶¶ 11, 12 & Ex. 2 at 8; Resp. SMF ¶21).

Based on his experience with victims of domestic violence, Down found Pulkkinen’s comment about provoking the violence to be typical of someone who was being abused. (Defs.’ SMF ¶ 22; Down Aug. 4, 2005, Aff. ¶¶ 12-13.) The parties agree that Bloomquist never reported Pulkkinen to the police for assault. (Defs.’ SMF ¶ 23; Resp. SMF ¶ 23.)

Pulkkinen provided Detective Down with seven pictures of a woman in bondage who was believed to be a local tattoo shop owner. (Defs.’ SMF ¶ 24; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2.) Pulkkinen told Down that she was in fear for her life as to what Bloomquist might do. (Defs.’ SMF ¶ 25; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2.)

There is no genuine dispute as to the following. Pulkkinen had gone to court on November 26, 2001, and had obtained a protection from abuse order to be served on Bloomquist. (Defs.’ SMF ¶ 26; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2.) Pulkkinen stated that she needed to gain entrance into her house to obtain personal items and wanted to be advised as to when the protection order was served. (Defs.’ SMF ¶ 27; Down Aug. 4, 2005, Aff. ¶ 11 & Ex. 2.) Down spent a considerable amount of time with Pulkkinen and had an opportunity to assess her credibility. (Defs.’ SMF ¶ 28; Down Aug. 4, 2005, Aff. ¶ 7.) Down had — at the time — over twenty-three years of experience investigating complaints of domestic violence. (Defs.’ SMF ¶ 29; Down Aug. 4, 2005, Aff. ¶13.) Down found Pulkkinen to be a credible witness. (Defs.’ SMF ¶ 30; Down Aug. 4, 2005, Aff. ¶ 7.) Down also believed that Pulkkinen was in fear for her life. (Defs.’ SMF ¶ 31; Down Aff. Aug. 4, 2005, Aff. ¶ 9.) Down had Pulkkinen prepare several written statements, copies of which are attached to Down’s affidavits and the contents of which the defendants incorporate by reference. (Defs.’ SMF ¶ 32; Down July 13, 2005, Aff. ¶¶ 6, 9 & Exs. A, C; Down Aug. 4, 2005, Aff. ¶ 10 & Ex. 1.) Down performed background checks on Bloomquist. (Defs.’ SMF ¶ 33.) Down also contacted the Department of Alcohol, Tobacco and Firearms (ATF) concerning Bloomquist. (Defs.’ SMF ¶ 34.) According to Bloom-quist, the background checks indicated that there was no record of a criminal history apropos Bloomquist. (Resp. SMF ¶ 34; Docket No. 264, Ex. V). The parties do not dispute that Down learned that Bloomquist had federal licenses to possess and sell firearms. (Defs.’s SMF ¶ 35; Resp. SMF ¶ 35.)

Down received photocopies of machine gun license cards from ATF that reflected that Bloomquist held himself out as an attorney. (Defs.’ SMF ¶ 36; Down Aug. 4, 2005, Aff. ¶ 21 & Exs.6,7; Resp. SMF ¶ 36.) Bloomquist has acknowledged that such cards exist, that they were completed by him, and that they reflect his occupation to be “attorney.” (Defs.’ SMF ¶ 37); (Bloomquist Dep. at 92 & Exs. 4 & 5.)

Down met with Sergeant Donald Foss of the Cumberland County Sheriffs Office on the morning of November 27, 2001, and instructed him to serve Pulkkinen’s protection order on Bloomquist. (Defs.’s SMF ¶ 38.) Detective Down had the roll of film provided by Pulkkinen developed. (Defs.’s SMF ¶ 39; Resp. SMF 1138.) That afternoon Down learned that Sergeant Foss’s effort to serve Bloomquist with Pulkkinen’s protection order had been unsuccessful. (Defs.’s SMF ¶ 40; Resp. SMF ¶ 41.) ' Down reported Pulkkinen’s complaint to his superior officer, Defendant Captain Kevin Joyce. (Defs.’s SMF IT 41; Resp. SMF IT 42.) Joyce relayed Down’s report to Defendant Sheriff Mark Dion. (Defs.’s SMF ¶ 42; Resp. SMF ¶ 43.)

Dion was made aware of Pulkkinen’s circumstances and her fear of Bloomquist. (Defs.’s SMF ¶43; Resp. SMF IT 44.) Dion is aware, based on his experience as a police officer, that one of the most dangerous periods for a spouse who is leaving an abusive partner is the time frame surrounding the spouse’s initial departure from the marital residence. (Defs.’ SMF ¶ 44.) Dion decided that the situation warranted concerted action on the part of the Sheriffs Office to serve Pulkkinen’s protection order and to secure Bloom-quist’s weapons pending resolution of the complaint. (Defs.’ SMF ¶ 45.)

According to the defendants, on November 26, 2001, Pulkkinen, as owner of the Baldwin residence, had given the Sheriffs Office consent to search all parts of the residence. (Defs.’ SMF ¶46.) Based on his discussions with Pulkkinen, Down believed that she had the ability to authorize a search of all parts of the residence and property. (Id. ¶ 47.) Pulkkinen completed a form on November 26, 2001, that evidenced her consent to the Sheriffs Office to search all parts of the Baldwin residence. (Id. ¶48.) On November 27, 2001, Pulkkinen again gave the Sheriffs Office consent to search all parts of the residence. (Id. ¶ 49.) Pulkkinen completed a form on November 27, 2001, that evidenced her consent to search all parts of the Baldwin residence. (Id. ¶ 50.)

Bloomquist counters that he had exclusive access to the two rooms in the basement; Pulkkinen had no access. (Resp. SMF ¶ 47.) He points to the order of the state court determining that the search of those rooms fell afoul of the Fourth Amendment. (Id.; id. ¶ 51; Docket No. 264, Ex. P.) He stresses that in his report Down noted that Pulkkinen had told him that the room in the basement with the ammunition and weapons and another room were locked and only Bloomquist had access to these rooms. (Resp. SMF ¶ 48; Down July 13, 2005, Aff. Ex. D.) Bloom-quist asserts that Down knew at the time of Pulkkinen’s consent that Bloomquist had two protection orders against Pulkki-nen that he asserts prevented her from being on the property and having contact with Bloomquist. (Resp. SMF ¶¶ 48, 49, 50; Docket No. 284, Ex. 5.)

Numerous members of the Sheriffs Office, along with officers of the Maine State Police and the ATF, went-to the Baldwin residence on the late afternoon/early evening of November 27, 2001. (Defs.’ SMF ¶ 51.) They went to the Baldwin residence to serve Pulkkinen’s protection order, to protect Pulkkinen from further harm, and to afford Pulkkinen safe access to her belongings. (Id. ¶ 52.) Bloom-quist was not at the Baldwin residence when the officers arrived on the evening of November 27, 2001. (Id. ¶ 53.)

There is no dispute that the Baldwin residence is set back from the road approximately one half-mile. (Defs.’ SMF ¶ 54; Resp. SMF ¶ 55.) The land on either side óf the driveway approaching the Baldwin residence has been cleared. (Defs.’ SMF ¶ 55; Resp. SMF ¶56.) A mount for a machine gun was stationed on a deck facing the approach to the Baldwin residence. (Defs.’ SMF ¶ 56; Resp. SMF ¶ 57.) The machine gun mount could accommodate a number of weapons, including a 30-caliber machine gun and a 50-caliber machine gun. (Defs.’ SMF ¶ 57; Resp. SMF ¶ 58.).

Down and Officer Eric Marston found a boiler room in the basement of the Baldwin residence that was unlocked. (Defs.’ SMF ¶ 59.) This boiler room was the one Pulkkinen had stated that Bloomquist was using to grow marijuana. (Defs.’ SMF ¶ 59; Resp. SMF ¶ 60.) Inside the boiler room, Down found twelve marijuana plants, material to grow marijuana, and apparatus to grow marijuana. (Defs.’ SMF ¶ 60; Resp. SMF ¶ 61.) The twelve marijuana plants, material to grow marijuana, and apparatus to grow marijuana were cataloged by the officers and transported to the Sheriffs Office. (Defs.’ SMF ¶ 61; Resp. SMF ¶ 62.)

The officers found a door behind a bookcase, as Pulkkinen had described. (Defs.’ SMF ¶ 62.) The door had a rope or cord attached to it on the right side of the door jamb near the top. (Defs.’ SMF ¶ 63.) To Down the door appeared to be booby-trapped. (Id. ¶ 64.) The Maine State Police Bomb Unit disarmed the device, which turned out to be a novelty noisemaker. (Defs.’ SMF ¶ 65; Resp. SMF ¶ 66.) In fact, Bloomquist had rigged the door with a mechanism that would have made some sort of noise if the door was opened. (Defs.’ SMF ¶ 66; Resp. SMF ¶ 67.)

The officers found numerous firearms, rounds of ammunition and assorted weapons in the gun room. (Defs.’ SMF ¶ 67; Resp. SMF ¶ 68.) The officers cataloged numerous items from the gun room and transported those items to the Sheriffs Office. (Defs.’ SMF ¶68; Resp. SMF ¶ 69.) The officers secured the weapons and ammunition from the gun room for safety reasons. (Defs.’ SMF ¶ 69.) Sheriff Dion was never advised by any officer of the Sheriffs Office that the Sheriffs Office did not have the right to secure the weapons for safety reasons. (Defs.’s SMF ¶ 70; DionAff. ¶23.)

Bloomquist contacted his residence while the officers were there and spoke with Detective James Langella. (Defs.’s SMF ¶ 71; Resp. SMF ¶ 72.) Bloomquist told Detective Langella that he would secure the weapons he had with him and come to the Baldwin residence that evening. (Defs.’s SMF ¶72; Resp. SMF ¶ 73.) Bloomquist did not come to the residence while the officers were there on November 27, 2001. (Defs.’s SMF ¶ 73; Resp. SMF ¶ 74.) Bloomquist was not held for questioning by the officers at the Baldwin residence. (Defs.’s SMF ¶ 74; Resp. SMF ¶ 75.) The officers left the Baldwin residence in the early morning hours of November 28, 2001. (Defs.’s SMF ¶ 75; Resp. SMF ¶ 76.) As of the morning of November 28, 2001, Bloom-quist had not turned himself into the Sheriffs Office. (Defs.’s SMF ¶ 76; Resp. SMF ¶ 77.)

During the morning of November 28, 2001, Sheriff Dion notified the media that he was holding a press conference later that day. (Defs.’s SMF ¶ 77.) Bloomquist qualifies this statement with the assertion that Dion, in and through Chief Fagliano, had “direct” contact with the media as early as 8 p.m. on the evening of November 27, 2001. (Resp. SMF ¶ 78; Docket No. 284, Ex. 13.) Dion did not call for a press conference before the officers went to the Baldwin residence on November 27, 2001. (Defs.’s SMF ¶ 78.) At the press conference on November 28, 2001, Dion read a prepared statement. (Id ¶ 79; Resp. SMF ¶ 80.) The contents of Dion’s statement to the media are reflected in a printed press release attached to Dion’s Affidavit as Exhibit 1, the contents of which are incorporated into this statement of fact by reference. (Defs.’s SMF ¶ 80; Dion Aff. Ex. 1.)

Bloomquist voluntarily surrendered to Detective Down on the evening of November 28, 2001. (Defs.’ SMF ¶81; Resp. SMF ¶ 82.) His arrest was not pursuant to an arrest warrant. (Defs.’ SMF ¶ 82.) At the time he surrendered to Down, he (or his attorney) gave Down a protection from abuse order he had obtained against Pulkkinen on November 20, 2001. (Id ¶ 83.) The Sheriffs Office typically records all protection from abuse orders that it receives for service on the date the order is received. (Id ¶ 84.) The Sheriffs Office’s records do not reflect that Bloomquist’s protection order was received by it for service before the evening of November 28, 2001. (Id ¶ 85.) Down served Pulkkinen’s protection order on Bloomquist on the evening of November 28, 2001 (Defs.’ SMF ¶ 86; Resp. SMF ¶ 87) and he served Bloomquist’s protection order on Pulkkinen on the evening of November 28, 2001 (Defs.’ SMF ¶ 87; Resp. SMF ¶ 88).

Bloomquist was held overnight at the Cumberland County Jail from November 28, 2001 to November 29, 2001. (Defs.’ SMF ¶ 88; Resp. SMF ¶ 89.) Bloomquist was released on his own recognizance on November 29, 2001, and was not incarcerated with regard to the aggravated assault charges or the cultivation of marijuana charges after that date. (Defs.’ SMF ¶ 89.) Bloomquist considers that the fact that he had to pay a $20,000 bond means that he was not released on his own recognizance. (Resp.’SMF ¶ 90; Docket No. 284, Ex. 15.) Bloomquist was never held as a convicted inmate with regard to the assault or cultivation charges. (Defs.’ SMF ¶ 90; Resp. SMF ¶ 91.)

Bloomquist has no information to suggest that Sheriff Dion, Captain Joyce, or Detective Down influenced the conditions placed on Bloomquist’s bail.. (Defs.’ SMF ¶ 91.) Bloomquist’s bail was set by the Court. (Defs.’ SMF ¶ 91; Resp. SMF ¶ 92.) Down’s incident report reflected that Bloomquist was being arrested for aggravated assault and cultivation of marijuana. (Defs.’ SMF ¶ 93; Down Aug. 4, 2004, Aff. ¶ 11 & Ex. 2.) Bloomquist was charged by the District Attorney’s office with twelve counts of assault and two counts of terrorizing. (Defs.’ SMF ¶ 94; Resp. SMF ¶ 95.) Several weeks later, Bloomquist was charged with one count of cultivation of marijuana. (Defs.’ SMF ¶ 95; Resp. SMF ¶ 96.) It was up to the District Attorney’s office to decide what charges to move forward on. (Defs.’s SMF ¶ 96; Resp. SMF ¶ 97.)

The Sheriffs Office released most of Bloomquist’s weapons to Bloomquist’s agent on or about February 7, 2002, after the Court permitted the return to occur and after the ATF notified the Sheriffs Office that the weapons could be returned. (Defs.’ SMF ¶ 97.) The remaining three weapons were released to Bloomquist’s agent after the ATF notified the Sheriffs Office that the weapons could be returned. (Defs.’ SMF ¶ 98; Resp. SMF ¶ 99.)

Bloomquist has no information to suggest that Sheriff Dion, Captain Joyce or Detective Down took any steps to contact the Carroll County Sheriffs Office about picking up Bloomquist’s weapons. (Defs.’ SMF ¶ 99; Bloomquist Dep. at 133-134.) Sheriff Dion did nothing to impede the return of Bloomquist’s property. (Defs.’ SMF ¶ 100.)

Captain Joyce reported Bloomquist’s reported bizarre behavior to the ATF and requested that that office perform a psychological profile. • (Defs.’ SMF ¶ 101.) Detective Down received queries from an officer of the Carroll County Sheriffs Office concerning Bloomquist, Scott Floccher and Susan Benfield and security precautions for a hearing that was upcoming in Carroll County Court. (Defs.’ SMF ¶ 102.) According to the defendants, Detective Down relayed certain information he has received as part of his investigation so that the Carroll County deputy could make whatever safety precautions he felt were necessary. (Defs. SMF ¶ 103.) Down did not intend for his comments to be used in court and did not testify at any Carroll County hearing. (Id. ¶ 104.) Blo-omquist has no information that Sheriff Dion or Captain Joyce had any contact with Carroll County concerning Bloom-quist. (Id. ¶ 105.)

Bloomquist counters these statements by citing a memorandum by the Carroll County Sheriffs Office and a photocopy of an affidavit of Douglas D. Hendrick, Esq. that, quite irrelevantly, gives Hendrick’s views as to why the information in the memorandum is inaccurate. (Resp. SMF ¶¶ 103 & 104; Docket No. 264, Exs. I & J.) He contends that the information in the memorandum was for the most part unrelated to legitimate law enforcement concerns vis-a-vis the New Hampshire court proceedings.

Sheriff Dion did not tell the press that Bloomquist lost a student attorney position with the District Attorney’s Office because of a background check done by the Bridg-ton Police Department. (Defs.’ SMF ¶ 106.)

The DA dismissed the aggravated assault charges after Pulkkinen stated that she did not wish to press charges. (Id. ¶ 107.) The DA dismissed the marijuana cultivation charges after evidence obtained from the Baldwin residence was excluded by the Maine District Court. (Id. ¶ 108; Resp. SMF ¶ 109.) Bloomquist’s guilt or innocence with regard to all of these charges was never adjudicated. (Resp. SMF ¶ 109.)

Bloomquist is unaware of any written policies of Cumberland County concerning discriminatory treatment of males in domestic violence situations. (Defs.’ SMF ¶ 110.) Bloomquist’s belief that a practice of discriminatory treatment against males in domestic violence situations is based upon his experience in this case and an alleged statement made by Anne Berlind, a Cumberland County Assistant District Attorney. (Id. ¶ 111). Bloomquist is not aware of any instances (other than what he alleges happened to him) of the Sheriffs Office deputies refusing to serve protection orders on behalf of males. (Id. ¶ 112.) In fact, the Sheriffs Office does not have a custom, policy or practice of treating males differently from females with regard to enforcing, prosecuting, or investigating incidents of domestic violence. (Id. ¶ 113.)

Bloomquist is unaware of any written policies of Cumberland County concerning discriminatory treatment of males and their Second Amendment rights. (Id. ¶ 114.) The Sheriffs Office has no policy or practice to take weapons from citizens for no reason whatsoever. (Id. ¶ 115.)

Bloomquist was not prevented from filing lawsuits as a result of the defendants’ conduct. (Id. ¶ 117.) Bloomquist was never arrested by the Sheriffs Office based on statements he made. (Id. ¶ 118.) Bloomquist was never preemptively prevented from speaking out by the Cumberland County Defendants. (Id. ¶ 119.) Bloomquist has no evidence of anyone at Cumberland County willfully destroying evidence. (Id. ¶ 120.) Bloomquist qualifies this statement, suggesting: “The circumstantial evidence is such that it is clear that the CCSO Defendants are willfully destroying evidence and willfully removed the videotape to prevent Plaintiff from having it.” (Resp. SMF ¶ 123.) He cites to the police report narrative of Deputy Thorpe. (Docket No. 284, Ex. 3.) In this report Thorpe indicates that he assisted the evidence tech in filming during the search and made a video. (Id.)

The Sheriffs Office does not have a custom, policy or practice of creating false criminal histories and creating false or nonexistent criminal investigations about defendants whom they know are innocent. (Id. ¶ 121.) It does not have a custom, policy or practice of violating individuals’. First Amendment rights. (Id. ¶ 122.) It does not have a custom, policy or practice of conducting unlawful searches and seizures. (Id. ¶ 123.) It does not have a custom, policy or practice of pursuing malicious prosecutions. (Id.f 124.) It does not have a custom, policy or practice of providing less protection to male victims of domestic violence than to female victims. (Id. ¶ 125.) It does not have a custom, policy or practice of falsifying evidence or creating false criminal histories. (Id. ¶ 126.)

With regard to the destruction of property and ■ failure to secure the Baldwin residence, Bloomquist is relying upon events that allegedly took place on November 27, 2001, or during the early morning hours of November 28, 2001. (Defs.’ SMF ¶ 127.) Bloomquist’s trespass claim is based upon the Sheriffs Office entry into the Baldwin residence on November 27, 2001. (Id. ¶ 128; Resp. SMF ¶ 131.) Blo-omquist’s emotional distress claims are based upon the same events underlying the other tort claims. (Defs.’ SMF ¶ 129.)

For the periods of January 1, 2001, through December 31, 2001, and January 1, 2002, through December 31, 2002, Cumberland County was a member of the Risk Management Pool. (Defs.’ SMF ¶ 130; Resp. SMF ¶ 133.) The Member Coverage- Certificates issued to Cumberland County for those time periods describe the coverage available to Cumberland County under the Risk Management Pool. (Defs.’ SMF ¶ 131; Resp. SMF ¶ 134.) True and accurate copies of the Member Coverage Certificates are attached to Peter Crichton’s Affidavit as Exhibits A and B, and the text of those Exhibits is incorporated herein. (Defs.’ SMF ¶ 132; Resp. SMF ¶ 135.) Apart from the coverage afforded under the Risk Management Pool, the County did not have any liability insurance coverage for the calendar" years 2001 and 2002. (Defs.’ SMF ¶ 133; Resp. SMF ¶ 136.)

Recommended Disposition on Bloomquist’s Claims against the County Defendants

The County, Dion, Down, and Joyce have stayed out of the fray during an initial round of dispositive motions in this multi-defendant suit, so this is the first time these defendants have joined issues with Bloomquist. They have identified twenty-four counts against them implicating federal rights: equal protection/nondiscrimination, First Amendment, Second Amendment, Fourth Amendment, Sixth Amendment, Eighth Amendment, Fourteenth Amendment, a constitutional right to privacy, and 18 U.S.C. § 922. They also discern ten state law counts as being brought against them.

In his response to the defendants’ motion Bloomquist does not argue that the defendants have in anyway mischaracter-ized — in a manner unfavorable to him— the extent to which the complaint pertains to them Therefore, even if it is possible to view the complaint as stating yet more counts against these defendants I limit Bloomquist to those counts identified by the defendants in their summary judgment motion. With respect to the counts that the defendants identified as going against them to which Bloomquist has offered no defense to summary judgment, I will recommend below that the Court grant the defendants summary judgment in view of Bloomquist’s silence.

With respect to the counts that charge the County itself with liability:

In Monell v. N.Y. City Dept. of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court established both the fact that “municipalities and other local government units [were] included among those persons to whom § 1983 applies,” id. at 690, 98 S.Ct. 2018, and the limits of such actions. Most importantly, Monell held that “a municipality cannot be held liable under § 1983 on a respondeat superior theory.” Id. at 691, 98 S.Ct. 2018. Instead, municipal liability exists only “when execution of a government’s policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury.” Id. at 694, 98 S.Ct. 2018. We have identified three different ways in which a municipality or other local governmental unit might violate § 1983:(1) through an express policy that, when enforced, causes a constitutional deprivation; (2) through a “widespread practice” that although not authorized by written law and express policy, is so permanent and well-settled as to constitute a “custom or usage” with the force of law; or (3) through an allegation that the constitutional injury was caused by a person with “final decision policymaking authority.” McTigue v. City of Chi, 60 F.3d 381, 382 (7th Cir.1995).

Calhoun v. Ramsey, 408 F.3d 375, 379-381 (7th Cir.2005)

A. Equal Protection/Non-discrimination Counts One and Twenty-Nine

Count One asserts that Cumberland County has a policy, practice, and custom of subjecting males to disparate and discriminatory treatment with respect to domestic violence matters. (Am. ComplJ 217.) Count Twenty-nine alleges that Cumberland County has a policy or custom of providing less protection to male victims of domestic violence than to females. (Id. ¶ 412.)

Bloomquist goes on at some length in his opposition memorandum as to why he believes that these equal protection counts have merit. (Opp’n Mem. Mot. Summ. J. at 13-20.) However, to sustain a claim of this sort apropos a motion for summary judgment Bloomquist must generate a genuine dispute of fact material to the question of whether the County has a custom, policy, or practice that was the moving force behind the alleged constitutional violation.

Bloomquist makes it clear that he believes that the County has a “de facto, ” as opposed to an express, “policy, practice, and custom of discrimination against males in favor of females in Cumberland County.” (Id. at 20.) “[A]n act performed pursuant to a ‘custom’ that has not been formally approved by an appropriate deci-sionmaker may fairly subject a municipality to liability on the theory that the relevant practice is so widespread as to have the force of law.” Board of County Com’rs of Bryan County, Okl. v. Brown, 520 U.S. 397, 404, 117 S.Ct. 1382, 137 L.Ed.2d 626 (1997) (citing Monell v. Dep’t Soc. Servs. City of N.Y., 436 U.S. 658, 690-691, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), in turn, citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 167-168, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)). To proceed on such a theory Bloomquist must produce,

evidence that there is a true municipal policy at issue, not a random event. If the same problem has arisen many times and the municipality has acquiesced in the outcome, it is possible (though not necessary) to infer that there is a policy at work, not the kind of isolated incident that Brown held cannot support municipal liability.

Calhoun, 408 F.3d at 380.

Assuming for the sake of argument that a County defendant violated Bloomquist’s right to equal protection, he has not presented properly supported evidence that would get him by the standard for holding the County liable on these counts. For instance, Bloomquist states in his opposition memorandum that he “learned and heard first hand from Defendant Berlind that the DA’s office has a policy, practice, and custom of enforcing domestic violence charges against males to the detriment of males and favoring the unverified statements of females over males.” (Opp’n Mem. Mot. Summ. J. at 14.) Bloomquist’s affidavit statement is inadmissible to prove the existence of such a policy and it is certainly not sufficient to create a genuine dispute of fact as to this claim. Otherwise Bloomquist faults Down for believing Pulk-kinen, her attorney, and Benfield rather than Bloomquist (id. at 14-16, 18-20); Joyce’s decision to seek a psychological profile of Bloomquist based on this information from Pulkkinen, her attorney, and Benfield (16-17); Down and Joyce’s decision vis-a-vis audio tapes supplied by Bloomquist allegedly of Pulkkinen’s abuse of Bloomquist (id. at 17-18); and Dion’s decision to serve the protective order on Bloomquist on November 27, 2001, even though he allegedly knew Bloomquist was not home (id. at 18). Nothing in the record above furthers Bloomquist’s claims pertaining to these two counts.

It is patently clear that on the record before me Bloomquist has not created a genuine dispute of material fact as to his two counts charging the County with having an unwritten policy of discriminating against men involved in domestic violence incidents.

B. First Amendment — Counts Fourteen and Fifteen

In Count Fourteen of his amended complaint Bloomquist alleges that Dion, Down, and Joyce (as well as other defendants) deprived him of his First Amendment rights by:

intentionally and maliciously bringing fourteen unwarranted criminal charges against Plaintiff in an effort to chill his ability, willingness, and credibility to continue to advocate on behalf of pro-second amendment groups; to bring a lawsuit for Plaintiffs unlawful termination of employment; to bring other lawsuits then pending against Cumberland County to bring exposure to information that Plaintiff learned of Defendant Anderson’s cover-ups of serious misconduct by members of her staff, including but not limited to facilitating the sale of cocaine and directly lying to the trial judge in court.

(Am.ComplA 309.)

The First Circuit has indicated that in a First Amendment retaliation claim plaintiff must allege that his speech “was in fact chilled or intimidated” by the defendant’s complained-of action. Sullivan v. Carrick, 888 F.2d 1, 4 (1st Cir.1989). A mere allegation of harm is not enough, id. “Where a chilling effect is speculative, indirect or too remote, finding an abridgment of First Amendment rights is unfounded.” Id. (citing United States v. Harriss, 347 U.S. 612, 626, 74 S.Ct. 808, 98 L.Ed. 989 (1954)).

The defendants argue in their motion for summary judgment that Bloomquist must “show that any protected speech was in fact ‘chilled’ ” by something Berlind did (County Mot. Summ. J. at 10-11). As with his equal protection claim, Bloomquist goes on at length complaining of the conduct of these and other defendants apropos their embroiling of Bloomquist in legal proceedings. (Opp’n Mem Mot. Summ. J. at 21-25.) With respect to chilling his speech he argues: “Defendants Down and B[a]rry’s false statements that there was an ongoing sexual investigation and that Plaintiff was the suspect was all designed, timed, and intended to impede and chill Plaintiffs abilities to move forward with lawsuits against them.” (Id. at 21.) “In fact,” Bloomquist continues, he was “chilled by them and only filed his lawsuits at the last possible date and in one case, is still waiting to have them served, and in the current case did not dare have them have it served until he was fully sure the N.H. Protection from Stalking Order fraudulently obtained against him with the direct assistance of Defendant Down and others no longer in effect in Maine or New Hampshire.” (Id. 21-22.) Bloomquist indicates that he delayed fling his (unidentified) lawsuits out of fear of retaliation by the Defendants. (Id. at 22.) As it relates to these defendants, Bloomquist states that he had already served notice on the Cumberland County Defendants about his lawsuit pertaining to the April 11, 2001, Bridgton Courtroom assault giving them incentive to retaliate against Bloomquist. (Id. at 23.) However, Bloomquist does not have record evidence of this lawsuit and its travel. And he does not articulate how his efforts to sue these defendants “was in fact chilled or intimidated” by their conduct vis-a-vis the Pulkkinen investigation. In my view Bloomquist has not generated the material facts adequate to support Count Fourteen, let alone a statement of facts supported by record evidence.

In Count Fifteen Bloomquist alleges that “all the Defendants” deprived him of his right to travel and assemble “by their tortouos [sic] acts in obtaining a tainted New Hampshire Protection from Stalking Final Order against Plaintiff.” (Am. Compl.lffl 316, 317.) Bloomquist does not defend summary judgment on this count in his opposition memorandum (see Opp’n Mem. Mot. Summ. J. at 21-25) and the defendants have demonstrated their entitlement to judgment as a matter of law as to this count (see Mot. Summ. J. at 11.)

C. Second Amendment — Counts Two and Sixteen

In Count Two of his amended complaint Bloomquist alleges that Cumberland County has a policy, practice, and custom of depriving male citizens of their individual Second Amendment Rights without due process. (Am.Compl^ 224.) In Count Sixteen he charges “each and every Defendant” with “unlawfully conspiring to deprive Plaintiff of his Second Amendment rights or to question Plaintiffs right to keep military weapons.” (Id. ¶ 323.) He also asserts that Dion, Joyce and Down (as well as others) deprived him of his “ ‘right to keep and bear arms’ ” during the search of his residence and by seizing his firearms. (Id. ¶ 324.)

The defendants assert that both counts fail because the law in this circuit is that there is no individual Second Amendment right to bear arms. (Mot. Summ. J. at 12-14.) Bloomquist retorts: “Recent court cases in the Federal juris prudence show that the right of the people meant the individual people, not the collective right.” (Opp’n Mem. Mot. Summ. J. at 26.) However, he has not directed the court to any of these decisions.

It is true that the First Circuit’s Thomas v. Members of City Council of Portland, relying on United States v. Miller, 307 U.S. 174, 178, 59 S.Ct. 816, 83 L.Ed. 1206 (1939), supports the defendants’ position. 730 F.2d 41, 42 (1st Cir.1984). See also Lewis v. United States, 445 U.S. 55, 65 n. 8, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980); but see Printz v. United States, 521 U.S. 898, 932, 117 S.Ct. 2365, 138 L.Ed.2d 914 & ns. 1, 2 (1997) (Thomas, J., concurring). After reviewing these cases and the other authorities cited by the defendants, I conclude that with respect to Count Sixteen against the individual defendants, Dion, Down, and Joyce are entitled to summary judgment as they have asserted a qualified immunity defense (see Mot. Summ. J. at 7-8) and it is clear that — if Bloomquist has a constitutionally protected individual right under the Second Amendment — it is not a right that was (or is) clearly established. See Hope v. Pelzer, 536 U.S. 730, 736, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002); Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001); Savard v. Rhode Island, 338 F.3d 23, 27 (1st Cir.2003); see also Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 600-01, 160 L.Ed.2d 583 (2004) (Breyer, J, joined by Scalia, J. and Ginsburg, J., concurring) (observing that, while Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) requires that lower courts decide the constitutional question before deciding the qualified immunity question, the Supreme Court should reconsider the issue because “a rigid ‘order of battle’ makes little administrative sense and can sometimes lead to a constitutional decision that is effectively insulated from review”). And, as to the County’s liability under Count Two, as with his equal protection/anti-discrimination counts, Bloomquist has utterly failed to introduce record evidence to support a reasonable inference that there is a custom or policy. See Brown, 520 U.S. at 404, 117 S.Ct. 1382; Calhoun, 408 F.3d at 379-381.

D. Fourth Amendment — Counts Eighteen, Nineteen, Twenty, Twenty-One, Twenty Three, Twenty-Four, Twenty-Five, and Twenty-Six

The facts material to Bloomquist’s Fourth Amendment claims are that in Pulkkinen’s interview with Down, she reported that she and Bloomquist lived at a residence on Sunrise View Road in Baldwin, Maine, that she owned “the Baldwin residence,” and that Pulkkinen was, in fact, the record title holder. Pulkkinen did tell Down that a basement room containing various weapons and ammunition and another room were locked and only Bloomquist had access to these rooms. Pulkkinen did tell Down that she had gained access to the gun room and had taken photographs (and she provided the roll of film with the photos to Detective Down).

Pulkkinen, as owner of the Baldwin residence, had given the Sheriffs Office consent to search all parts of the residence and Down contends that he believed that she had the ability to authorize a search of all parts of the residence and property. Pulkkinen completed a form on November 26, 2001, that evidenced her consent to the Sheriffs Office to search all parts of the Baldwin residence. And on November 27, 2001, Pulkkinen again gave the Sheriffs Office consent to search all parts of the residence. And Pulkkinen completed a form on November 27, 2001, that evidenced her consent to search all parts of the Baldwin residence. Bloomquist does maintain that he had exclusive access to the two rooms in the basement and that Pulkkinen had no access. And the state court did determine that the search of those rooms fell afoul of the Fourth Amendment.

Down and Officer Eric Marston found a boiler room in the basement of the Baldwin residence that was unlocked. The boiler room was the one Pulkkinen had stated that Bloomquist was using to grow marijuana. Inside the boiler room, Down found twelve marijuana plants, material to grow marijuana, and apparatus to grow marijuana. The twelve marijuana plants, material to grow marijuana, and apparatus to grow marijuana were cataloged by the officers and transported to the Sheriffs Office. The officers found a door behind a bookcase, as Pulkkinen had described. The door had a rope or cord attached to it on the right side of the door jamb near the top and appeared to be booby-trapped. The Maine State Police Bomb Unit disarmed the device, which turned out to be a novelty noisemaker; Bloomquist had rigged the door with a mechanism that would have made some sort of noise if the door was opened.

In his opposition memorandum Bloom-quist makes clear that his Fourth Amendment claims,

are not for the arrest from which no doubt probable cause would of existed simply based upon the statements, but from the unlawful search of the rooms exclusively controlled by Plaintiff and the unlawful seizure of Plaintiffs weapons found there which all happened well before any probable cause developed through Plaintiffs ex-wife’s statements to believe he had assaulted his wife.

(Opp’n Mem. Mot. Summ. J. at 30.) It is also now clear that this claim runs against Down alone.

Understandably, Bloomquist believes that the order of the state court judge establishes that his Fourth Amendment rights were violated by the search of the two rooms in question. The order on that motion stated as relevant:

The Defendant and his wife were involved in an ongoing domestic disturbance that resulted in involvement by the Cumberland County sheriffs Department, Deputy Dan Down[] arrived at the Defendant’s residence where he met with defendant’s wife who gave her consent to search the house except for two rooms in the basement. She told Deputy Down[ ] that the Defendant had exclusive control over those rooms and that she had no access to them. The rooms were normally locked, although Deputy [D]own[] was able to open the doors to the rooms when he found them closed. Deputy [D]own took possession of evidence from those rooms.

Defendant’s wife did not have authority to give consent to Deputy Down[ ] to search the two rooms that were in the exclusive control of the Defendant. While she had been in the rooms in the past, she had agreed with the Defendant that he had the right to exclude her from those rooms and he in fact did so in ordinary circumstances. The fact that some of the house utilities were located in the rooms, or the fact that the doors were either unlocked or not securely locked on the day of the search does not change the fact that Defendant’s wife had no authority to give consent to search the two rooms. United States v. Matlock, 415 U.S. 164, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974); State v. Pinegar, 583 S.W.2d 217 (Mo.App.1979).

No other exceptions to the requirement that the Deputy obtain a search warrant before searching the two rooms under Defendant’s control apply in this case. The Deputy was clearly told that the Defendant had exclusive control of the two rooms and cannot claim to have relied in good faith on the erroneously given consent of Defendant’s wife who seemed to have authority to give consent. No exigent circumstance existed since the Deputy and others with him clearly had control of the house and could have excluded the Defendant for the time necessary to obtain a warrant without risk that any evidence would be destroyed.

(Order Mot. Suppress at 1, Docket No. 264, Ex. P.)

In making its determination as to whether Bloomquist can proceed to trial on this Fourth Amendment claim the court is not bound by the state court’s finding as a matter of fact that Down was not reasonable in relying on his belief that Pulkkinen had consented to the search of the two rooms. See Bilida v. McCleod, 211 F.3d 166, 170 (1st Cir.2000). The facts I consider are those in this summary judgment record, not the facts recited by the state court judge.

Although the state court’s analysis turned on whether Pulkkinen had apparent authority to consent to the search of the two rooms, I conclude, based on this record, that Bloomquist has not created a genuine dispute of fact that Pulkkinen had actual authority to consent to the search of the entire residence, including the two rooms in question. There is no dispute that Pulkkinen was the record title owner of the property. While she did tell Down that the two rooms were locked and only Bloomquist normally had access to these rooms this does not mean that she did not have legal authority to access these rooms. Indeed, as she told Down, she did access these rooms prior to her interactions with the authorities. And, there is no dispute that Pulkkinen demonstrated in her communications with Down respecting the rooms containing the weapons and the marijuana that she believed she could allow the officers access to these premises. Pulkkinen’s actual authority to consent to the search of these two rooms in these circumstances is not unlike the authority of a battered spouse to consent to the search of the prior marital home, even if the other spouse has changed the locks and the police have to break down a door. See United States v. Backus, 349 F.3d 1298 (11th Cir.2003); United States v. Gevedon, 214 F.3d 807, 810-11 (7th Cir.2000); United States v. Duran, 957 F.2d 499, 503-05 (7th Cir.1992). When analyzing this dispute in terms of whether or not Pulkkinen had actual authority, it does not matter what Down did or did not believe about her authority. If she had actual authority, there was no constitutional violation when the police conducted the search.

With respect to Bloomquist’s Fourth Amendment claims stemming from the New Hampshire proceedings, the defendants assert that Bloomquist has no competent evidence to support a conclusion that the Cumberland County Defendants did anything to influence — let alone in a false or fraudulent manner — the New Hampshire Court proceedings. (Mot. Summ. J. at 22.) Bloomquist retorts that he has competent evidence that Down attempted to influence these proceedings by communicating with Jonathan Hebert of the New Hampshire Carroll County Sheriffs department when Down knew that Hebert was preparing for the hearing the following day. (Opp’n Mem. Mot. Summ. J. at 34.) He elaborates:

The clear casual(sic) connection between the conduct of Defendant Down and the N.H. Stalking Orders is found in the two page so called court security document, previously detailed above and elsewhere, discovered by Plaintiff months after the hearing was over. PI’s Exhibits I, J, Pl.s MSJ. As stated previously above and elsewhere, that document contains numerous intentional, material, and malicious falsehoods about Plaintiff that had no direct relevance to Court security proceedings in N.H. In fact, Defendant Down (if Defendant Ber-lind’s affidavit is to be believed relied) solely on the statements of Defendant Benfield that he had obtained in phone conversations with her, as detailed previously above, to make the completely false allegation that Plaintiff had struck her in the April 11, 2001 Bridgton Courtroom.

Plaintiff also argues that whether Defendant Down knew or didn’t know that his evidence would end up in a foreign court proceeding is irrelevant as the fact is that he knowingly provided the false information across State lines to another law enforcement agency whom he knew was involved with Plaintiff and he knew the information was false and maliciously fabricated. In fact this false and maliciously fabricated information was delivered to the N.H. Carroll County Court by Officer Jonathan Hebert who had received the information directly from Defendant Down and so stated in the report, and this information was used to bolster the perjured testimony of Defendant Benfield, as previously detailed above.

Whether or not Defendant Down intended to influence the court or not, it is clear he intended to influence the N.H. Carroll County Sheriffs Department as well as other law enforcement agencies to become prejudiced towards Plaintiff by virtue of Defendant Down’s completely and utterly false and maliciously fabricated accusations that Plaintiff was accused and charged with sexual assault.

(Id. at 35-36.)

Considering the properly supported facts set forth above material to the New Hampshire events and Bloomquist’s argument, I conclude that Bloomquist simply does not have a viable Fourth Amendment claim against Down for his communications with Hebert.

Bloomquist also presses a malicious prosecution .claim against the individual defendants which the defendants have addressed under the Fourth Amendment rubric of their motion. The United States Supreme Court has yet to determine whether or not a plaintiff can even bring a 42 U.S.C. § 1983 action for malicious prosecution premised on a Fourth Amendment violation. See Albright v. Oliver, 510 U.S. 266, 271 n. 4, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994) (“As noted by the Court of Appeals below, the extent to which a claim of malicious prosecution is actionable under § 1983 is one ‘on which there is an embarrassing diversity of judicial opinion.’ Most of the lower courts recognize some form of malicious prosecution action under § 1983. The disagreement among the courts concerns whether malicious prosecutions, standing alone, can violate the Constitution.”) (internal citations omitted).

The First Circuit- is on the fence; in Nieves v. McSweeney the First Circuit reflected:

It is an open question whether the Constitution permits the assertion of a section 1983 claim for malicious prosecution on the basis of an alleged Fourth Amendment violation. As in previous cases, we will assume without deciding that malicious prosecution can, under some circumstances, embody a violation of the Fourth Amendment and thus ground a cause of action under section 1983.

241 F.3d 46, 54 (1st Cir.2001) (internal citations omitted). See also Castellano v. Fragozo, 352 F.3d 939, 953 (5th Cir.2003) (en banc) (“[Clausing charges to be filed without probable cause will not without more violate the constitution. So defined, the assertion of malicious prosecution states no constitutional claim.”); McCann v. Mangialardi, 337 F.3d 782, 786 (7th Cir.2003) (observing that the existence of a state law tort remedy locks out a constitutional claim for malicious prosecution).

Given the state of First Circuit precedent on the question, I conclude that Dion, Down, and Joyce are entitled to qualified immunity on Bloomquist’s malicious prosecution claims. See Rodriguez-Mateo v. Fuentes-Agostini, No. 02-1662, 66 Fed.Appx. 212, 213-14 (1st Cir. May 28, 2003) (unpublished decision) (“[W]e have explicitly held, after the events that gave rise to this case, that ‘[i]t is an open question whether the Constitution permits the assertion of a section 1983 claim for malicious prosecution on the basis of an alleged Fourth Amendment violation’ Such uncertainty in the legal landscape entitles state actors to qualified immunity.”)(internal citation omitted); see also Brosseau v. Haugen, 543 U.S. 194, 125 S.Ct. 596, 600-01, 160 L.Ed.2d 583 (2004) (Breyer, J, joined by Scalia, J. and Ginsburg, J., concurring) (observing that, while Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001) requires that lower courts decide the constitutional question before deciding the qualified immunity question, the Supreme Court should reconsider the issue because “a rigid ‘order of battle’ makes little administrative sense and can sometimes lead to a constitutional decision that is effectively insulated from review”).

Sixth and Eighth Amendment — Counts ThiHy-Seven and Twenty-Two

Bloomquist has waived his response to the defendants’ argument with respect to Count Thirty-seven of his amended complaint alleging a violation of his Sixth Amendment rights and Count Twenty-two alleging a violation of his Eighth Amendment Rights. (Opp’n Mem. Mot. Summ. J. at 36.) As these are counts to which Bloomquist has offered no defense to the defendants’ properly supported argument that they are entitled to summary judgment, I conclude that the Court should grant the defendants summary judgment as to these two counts.

Fourteenth Amendment — Counts Three, Thirty, Thirty-One, Thirty-Two, and Thirty-Three

All five of the counts Bloomquist frames as being under the Fourteenth Amendment are premised on Bloomquist’s allegations that:

Defendant Down and others did violate Plaintiffs due process rights by knowingly, willingly, and maliciously disseminating false and fraudulent information to the N.H. Carroll County Sheriffs Department, to the BATF, to the Cumberland County DA’s Office, and to others that the Plaintiff was convicted of a crime, that Plaintiff was a local sexual assault investigation, there is a sexual assault charge on his record, that Plaintiff had assaulted Defendant Benfield, and other false information, all of which Plaintiff has previously detailed above and elsewhere.

(Opp’n Mem. Mot. Summ. J. at 36.)

Bloomquist asks that the Court distinguish his Fourteenth Amendment claims from those involved in Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976). A case that involved the police department’s posting of the plaintiffs name and photo on a flyer of active shoplifters which was disseminated to local merchants, Davis held that this defamation of the plaintiff standing alone did not form the basis for a Fourteenth Amendment claim, id. at 694, 96 S.Ct. 1155, because it did not “deprive him of any ‘liberty’ or ‘property’ interests protected by the Due Process Clause.” Bloomquist asserts that his Fourteenth Amendment claims are different because “it was a fabrication and creation of false criminal histories, criminal charges, and criminal investigations by criminal investigators telling this to other law enforcement officials both Federally and within the State and without the State ... that they were being entered into the system of internal files and in-house files of law enforcement and Federal agencies and that they would be used against Plaintiff either legally or socially.” (Opp’n Mem. Mot. Summ. J. at 36-37.) However, Bloomquist does not specify where in the record above I can find a cognizable or comprehensible fact that supports Bloomquist’s con