Stewart Carney Jr. v. Hancock County

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2025 ME 36
Docket: Pen-24-224
Argued: December 12, 2024
Decided: April 15, 2025

Panel: STANFILL, C.J., and MEAD, HORTON, CONNORS, LAWRENCE, and DOUGLAS, JJ.

STEWART CARNEY JR. et al.

v.

HANCOCK COUNTY et al.

MEAD, J.

[¶1] The estate of an inmate who died by suicide at the Hancock County

Jail and the inmate’s surviving spouse filed a medical malpractice notice of

claim against the County and several county officials and employees. The

County and several of its employees1 (collectively the County Appellants) and

Jail Housing Officer Kayla Dumond appeal from an order entered in the

Superior Court (Penobscot County, A. Murray, J.) denying their motions for

summary judgment. This interlocutory appeal presents two issues:

(1) whether any or all of the defendants are “health care providers” within the

1 The employees that joined with the County in the motion for summary judgment were Scott
Kane, Timothy Richardson, Frank L. Shepard, Noah Lewey, Travis Young, Russell Wilson, Christoper
Stanley, and Jillian Jones. The other named defendants in this lawsuit—Alicia Lambert, William
A. Schaffer, Aroostook Mental Health Services, Inc. (AMHC), John Doe I, and John Doe II—did not
move for summary judgment or appeal.
2

meaning of the Maine Health Security Act, 24 M.R.S. §§ 2501-2988 (2025); and

(2) whether the defendants are immune from liability for the claim. Because

the first issue is not reviewable in an interlocutory appeal and we defer to the

federal court in which a comprehensive lawsuit regarding the second issue is

pending, we dismiss the appeal.

I. BACKGROUND

[¶2] The following facts are drawn from the summary judgment record2

and viewed in the light most favorable to Carney and the Estate as the

nonprevailing parties. See Fama v. Bob’s LLC, 2024 ME 73, ¶ 2, 322 A.3d 1247.

[¶3] Monica J. Johnson was incarcerated at the Hancock County Jail from

September 21, 2018, to September 29, 2018. At the time of Johnson’s

incarceration, Hancock County contracted with Aroostook Mental Health

Services, Inc. (AMHC) and Chelsea Howard, N.P., to provide mental health

services to those incarcerated at the Jail. The County’s contract provides that

AMHC will provide the Jail with the following services:

2 Maine Rule of Civil Procedure 56(h) limits the facts that the court may consider to the facts that

are set forth in the following statements and that are properly supported by admissible evidence
(which must be referenced in the statements): (1) the statement of materials facts of the moving
party or parties; (2) the opposing statement of material facts of any nonmoving parties; (3) the
additional statement of materials facts of any nonmoving parties; and (4) the reply statement of
materials facts of the moving party or parties. We consider only the facts that are in those statements
and supported by admissible evidence. See Berry v. MaineStream Fin., 2019 ME 27, ¶ 7, 202 A.3d
1195.
3

a. up to 4 hours per week of care coordination services with
qualified staff to assess the behavior needs of inmates,
consult with a psychiatrist about what interventions [are]
needed, coordinate with the medical provider to implement
recommendations made by the psychiatrist, [and] support
referrals to community resources when needed.

b. up to 3 hours per month of psychiatric services through
clinical consultation with the care coordinator and medical
staff.

AMHC assigned the “psychiatric services” portion of the contract to Community

Health and Counseling Services, who employed Dr. William A. Schaffer.

A separate contract with Howard required her to

a. review and approve all written medical policies established
for the Jail;

b. review all inmate medical requests and determine
appropriate responses to each inmate’s need;

c. conduct a physical exam, if requested, for each inmate within
8 days of being admitted; and

d. be available for telephone consultation 24 hours per day.

[¶4] The Jail also maintains the following policies establishing the

responsibilities of correctional officers to prevent inmate suicide:

 Policy A-203, titled “Housing Officer Post Orders,” details the duties of
Housing Officers, including the duty to “[w]rite incident reports for
unusual activities. Written incident reports are to be forwarded to the
shift supervisor before leaving shift unless giving permission to submit
at the beginning of next working shift.”
4

 Policy B-135, titled “Inmate Suicide,” states: “All personnel will
constantly be aware of the potential for inmate suicide attempts. Prompt
and effective response to suicide attempts is essential to minimize injury
and potential loss of life.”

 Policy C-112, titled “Prisoner Screening – Referrals,” states: “Hancock
County Jail recognizes that the sooner an inmate’s mental health and
substance abuse issues are identified, the greater the likelihood that
psychotic and substance abuse crises may be averted.” The policy goes
on to provide that “[w]hen an inmate is deemed to be suicidal, the
Corrections Officer shall implement the procedures outlined in
Policy D-243.”

 Policy D-205(B)(3), titled “Staff Briefing,” states: “Prior to being relieved
of duty, the Corrections Officer shall properly brief his/her relief of
important events, circumstances, and/or situations relative to the post
assignment.”

 Policy D-243, titled “Special Management Inmates,” states: “When
information is received regarding an inmate and / or an inmate’s
behavior indicates a risk for suicide, the inmate will be placed on Suicide
Watch.”

[¶5] Throughout Johnson’s incarceration, Dumond was a Housing Officer

at Hancock County Jail, and all her interactions with Johnson were in this

capacity; she was hired full-time on July 21, 2018, but worked as a part-time

officer before that. Dumond completed workplace training on suicide

prevention in May 2018. Dumond has never held any additional certification,

registration, or license in medicine or the healing arts. Dumond was not

involved in Johnson’s admission screening to the Jail. To Dumond’s knowledge,

Johnson was never placed on suicide watch at the Jail.
5

[¶6] On September 24, 2018, Johnson filled out an “Inmate Medical

Request Form,” writing, “Can I see the Psych doctor please ASAP!!!!” On

September 26, 2018, an AMHC crisis worker, Alicia Lambert, completed an

initial safety assessment on Johnson, in addition to a screening form for suicide

and for medical, mental, and developmental impairments. The following day,

Lambert provided Dr. Schaffer with a verbal summary of Johnson’s condition.

Dr. Schaffer conditionally diagnosed Johnson with substance-induced mood

disorder and recommended increasing the dosage of the medication she had

been prescribed at the Jail.

[¶7] On September 28, 2018, two other inmates informed Dumond that

Johnson was “crazy” and “was doing things that were crazy.” Dumond did not

report this information to the next shift’s staff or a supervisor, prepare an

incident report, or speak with Johnson about the reported conduct. Dumond

knew that “common sense” required her to brief the next shift’s staff and a

supervisor on any unusual activities that occurred during her shift.

[¶8] Johnson took actions to end her life on September 29, 2018, and died

as a result on October 4, 2018.

[¶9] On September 24, 2020, Carney and the Estate filed a notice of claim

in the Superior Court (Penobscot County) pursuant to the Maine Health
6

Security Act (MHSA).3 See 24 M.R.S. § 2853 (2025). The following day, Carney

and the Estate filed an amended notice of claim.4

[¶10] On September 25, 2020, Carney and the Estate also filed a

complaint in the United States District Court for the District of Maine. The

complaint names the same parties as the MHSA notice of claim and alleges the

same facts. The federal complaint contains three counts: (1) a claim under

42 U.S.C.A. § 1983 (Westlaw through Pub. L. No. 119-4) for deliberate

indifference to medical and mental health needs; (2) a claim under 42 U.S.C.A.

§ 1983 for failure to train and supervise employees; and (3) a claim under

18-A M.R.S. § 2-804 (2018)5 and 14 M.R.S. § 8104-C (2018)6 for wrongful death.

3This notice of claim was filed against Hancock County; Kane, in his individual capacity and
capacity as sheriff of Hancock County; Dumond; Lewey; Young; Stanley; Jones; Wilson; Lambert;
Richardson; Shepard; Schaffer; John Doe I; and John Doe II.

4 The amended notice of claim added AMHC as a defendant, in addition to the official capacities of

Richardson and Shepard as Hancock County Jail Administrator and Assistant Jail Administrator,
respectively.

5 The wrongful death statute is contained in Maine’s Probate Code. The Probate Code codified in

Title 18-A has since been repealed and replaced by a new Probate Code now codified in Title 18-C.
See P.L. 2017, ch. 402, §§ A-1, A-2 (repealing Title 18-A and replacing it with Title 18-C); P.L. 2019,
ch. 417 § B-14 (amending the effective date of the repeal and replacement from July 1, 2019, to
September 1, 2019). The replacement wrongful death statute has since been amended, though the
amendments are not relevant in the current appeal. See P.L. 2023, ch. 390, § 3 (effective Oct. 25,
2023) (codified at 18-C M.R.S. § 2-807 (2025)).

6 Title 14 M.R.S. § 8104-C has since been amended, though the amendment is not relevant to this

appeal. See P.L. 2017, ch. 402, § C-30 (replacing the reference to 18-A M.R.S. § 2-804 with 18-C M.R.S.
§ 2-807) (codified at 14 M.R.S. § 8104-C (2025)); P.L. 2019, ch. 417, § B-14 (amending the effective
date of the replacement from July 1, 2019, to September 1, 2019).
7

[¶11] In October 2020, the Chief Justice of the Superior Court (Mullen,

C.J.) appointed a chair of the prelitigation screening panel on the state court

claim. The County Appellants filed a motion to dismiss on the grounds that

(1) the notice of claim failed to allege professional negligence against them and

(2) they are not “health care providers or practitioners” within the meaning of

the MHSA. The prelitigation screening panel chair referred the motion to the

Superior Court, and on April 26, 2021, the court (A. Murray, J.) granted the

motion to dismiss because the amended notice of claim failed to allege claims

of professional negligence against the County Appellants, without reaching

whether they are subject to the MHSA.

[¶12] In March 2021, the federal district court (Rich, Mag.) stayed the

federal action and ordered that the federal lawsuit “will proceed on the merits

of the plaintiffs’ claims when either (i) the Superior Court determines that the

defendants are not medical providers subject to the MHSA, or (ii) the Superior

Court determines that the defendants are medical providers subject to the

MHSA, and all of the MHSA’s prelitigation requirements have been satisfied.”

Carney v. Hancock Cnty., No. 1:20-cv-00349-GZS, 2021 WL 966849, at *2

(D. Me. Mar. 14, 2021) (alteration and quotation marks omitted). In support of

the stay until the determination by the Superior Court regarding the MHSA on
8

the pendent state claim, the federal district court noted that to “proceed with

some but not all of the plaintiffs’ claims when they arise from the same nucleus

of alleged facts would be inefficient for the court and the parties.” Id.

(alterations and quotation marks omitted). In so ruling, it cited a previous

decision in which the federal district court made clear that it was “not

surrendering jurisdiction of the plaintiff’s suit to the state court . . . but [was]

instead merely allowing the state court to be the first to rule on a common issue

in the interest of economy and efficiency.” Dyer v. Penobscot Cnty.,

No. 1:20-cv-00224-NT, 2020 WL 5801081, at *4 (D. Me. Sept. 28, 2020)

(alteration and quotation marks omitted).

[¶13] On July 15, 2021, Carney and the Estate filed a new notice of claim

in Superior Court against Hancock County; Kane, in his individual capacity and

in his capacity as sheriff for Hancock County and Hancock County Jail;

Richardson, in his individual capacity and in his capacity as Hancock County

Assistant Jail Administrator; Shepard, in his individual capacity and in his

capacity as Hancock County Assistant Jail Administrator; Dumond; Lewey;

Young; Wilson; Stanley; Jones; John Doe I; and John Doe II. In June 2022, the

court (A. Murray, J.), on referral from the panel chair, granted Dumond’s motion

to dismiss the amended, initial notice of claim against her.
9

[¶14] The Chief Justice of the Superior Court (Mullen, C.J.) again

appointed a chair of the prelitigation screening panel on the new state court

claim. The County Appellants filed a motion to dismiss on the grounds that

(1) the notice of claim is barred by res judicata and other procedural defects

and (2) they are not “health care providers or practitioners” within the meaning

of the MHSA. Dumond filed a motion to dismiss on the same grounds. On

June 28, 2022, the court (A. Murray, J.), on referral from the panel chair, denied

both motions to dismiss. The panel chair subsequently consolidated the two

pending notices of claim.

[¶15] On July 10, 2023, the County Appellants and Dumond filed motions

for summary judgment. The assigned screening panel chair referred the

motions to the Superior Court for resolution, and Carney and the Estate

subsequently filed a cross-motion for summary judgment against Dumond.

After hearing oral arguments on the motions on April 8 and 12, 2024, the court

denied the cross-motions for summary judgment in a written order entered on

April 24, 2024. Specifically, the court determined that (1) it lacked jurisdiction

to determine the applicability of the MHSA, (2) the County Appellants and

Dumond failed to meet their burden in demonstrating that the claim is barred

by the immunity and limitations provisions in the Maine Tort Claims Act
10

(MTCA), 14 M.R.S. §§ 8103, 8110, 8111(1)(C), 8116 (2025), and (3) it lacked

jurisdiction to decide the cross-motion for summary judgment. The County

Appellants and Dumond timely appealed. See M.R. App. P. 2B(c)(1); 14 M.R.S.

§ 1851 (2025).

[¶16] On May 23, 2024, Carney and the Estate moved to dismiss these

appeals as interlocutory and not within an exception to the final judgment rule.

The County Appellants and Dumond filed oppositions to the motion, and we

ordered that the motion to dismiss be considered with the merits of the appeal.

II. DISCUSSION

A. Applicability of the MHSA

[¶17] We must first determine whether an exception to the final

judgment rule justifies our reaching the merits of the denial of a motion for

summary judgment. The County Appellants and Dumond argue that we can

properly review the court’s refusal to determine whether the MHSA applies to

them because their substantial rights will be irreparably lost without such

review due to the obligation to participate in the panel review process. Carney

and the Estate assert that Dumond and the County Appellants’ substantial

rights will not be lost because the panel findings are not binding on the
11

factfinder and the matter will be returned to the federal court after the

screening panel process.

[¶18] An appeal from an order denying a motion for summary judgment

is interlocutory, and we will generally not hear interlocutory appeals. See

Fama, 2024 ME 73, ¶ 7, 322 A.3d 1247. “The death knell exception to the final

judgment rule justifies consideration of issues raised on an interlocutory

appeal only if awaiting a final judgment will cause substantial rights of a party

to be irreparably lost. A right is irreparably lost if the appellant would not have

an effective remedy if the interlocutory determination were to be vacated after

a final disposition of the entire litigation. This exception is available only when

the injury to the appellant’s claimed right, absent appeal, would be imminent,

concrete and irreparable.” Salerno v. Spectrum Med. Grp., P.A., 2019 ME 139,

¶ 8, 215 A.3d 804 (alteration, citations, and quotation marks omitted.) “Cost or

delay alone is insufficient to establish the irreparable loss of a right.” Fiber

Materials, Inc. v. Subilia, 2009 ME 71, ¶ 14, 974 A.2d 918.

[¶19] We have previously held, in a case involving the application of the

MHSA, that an appeal met the death knell exception because the appellant

asserted that it was entitled to the “rights and protections provided by the

MHSA” screening process. Salerno, 2019 ME 139, ¶ 12, 215 A.3d 804. There,
12

the defendant asserted that the plaintiff’s claim was subject to the MHSA and,

because the claim was not timely under the MHSA, it should be dismissed. Id.

¶ 4. We agreed to review the denial of the motion to dismiss, reasoning that, if

the claim was in fact subject to the MHSA, allowing it to bypass the screening

process would irreparably deprive the appellant of the statutory mechanism

designed to encourage settlement, dissuade meritless litigation, and maintain

confidential pre-suit proceedings. Id. ¶¶ 12-14.

[¶20] The inverse of this holding, as advanced by the County Appellants

and Dumond, is not persuasive. The irreparable losses identified in Salerno do

not adhere here because the protections of the MHSA remain available to the

parties; the court’s denial of the motions for summary judgment will result in

the proceedings returning to the panel process with the protections identified

in Salerno. See 24 M.R.S. § 2853(5).

[¶21] We also reiterate that the Superior Court has limited jurisdiction

regarding the issues referred by the prelitigation screening panel. Once a claim

is pending before the prelitigation screening panel, the matters that may be

appropriately referred to the Superior Court include statute of limitations

defenses, allegations of failed notice, res judicata defenses, and “other ‘issues’

that can be adjudicated in a ‘preliminary’ fashion.” Gafner v. Down East Cmty.
13

Hosp., 1999 ME 130, ¶ 29, 735 A.2d 969 (quoting 24 M.R.S.A. § 2853(5) (Pamph.

1998)).7 These other issues include “[a] motion based on the assertion that the

cause of action upon which the claimant has based her claim before the panel

does not exist.” Gafner, 1999 ME 130, ¶ 30, 735 A.2d 969. The Superior Court,

however, must treat such a motion “as a motion to dismiss pursuant to M.R.

Civ. P. 12(b)(6), asserting a failure to state a claim upon which relief can be

granted. . . . If the claimant could not, under any set of facts, make out a cause

of action against the respondent, it would be senseless for the panel, the parties,

and the court to go through the motions of adjudicating the claim.” Id.

[¶22] Therefore, the contention that the County Appellants and Dumond

have a substantial right to be free from the MHSA panel process is not

persuasive. The Legislature declined to provide a procedure for parties seeking

exemption from the panel process and instead provided the Superior Court

with limited jurisdiction to decide certain matters referred to it. See 24 M.R.S.

§ 2853(5). A desire to avoid the codified procedures of the MHSA does not rise

to a substantial right being irreparably lost, especially because the MHSA

7 Title 24 M.R.S.A. § 2853 has since been amended, though the amendments are not relevant to
the present case. See P.L. 1999, ch. 668, § 102 (effective Aug. 11, 2000) (codified at 24 M.R.S. § 2853
(2025)).
14

provides no procedure for exempting claims from the panel process other than

the procedure already used by the parties.8

B. Immunity Pursuant to the MTCA

[¶23] We now turn to the County Appellants and Dumond’s claim that

they are immune from suit under the MTCA, see 14 M.R.S. §§ 8103, 8111(1)(C),

8116. Whether a defendant is immune from suit is typically reviewable in an

interlocutory appeal unless the issue has underlying fact questions that “must

be decided before the trial court can determine the applicability of immunities

as a matter of law.” Bean v. City of Bangor, 2022 ME 30, ¶ 4, 275 A.3d 324

(quotation marks omitted). Here, the Superior Court concluded that the County

Appellants and Dumond had not met their burden to show that they were

entitled to immunity as a matter of law, and they challenge that conclusion on

appeal.

[¶24] We, however, perceive a threshold issue that must be resolved

before contemplating any review of the immunity issue. There is a pending

comprehensive federal action that includes a state law claim, which some

parties may be immune from pursuant to the MTCA. When a plaintiff files a civil

rights claim under § 1983 with a pendent state law claim involving, as here, a

Because we conclude the appeal is interlocutory as to the applicability of the MHSA, we do not
8

address the parties’ additional arguments as to the applicability of the MHSA.
15

nucleus of operative fact in common with the federal claims, there is no

jurisdictional impediment to the federal court deciding whether immunity

prevents the pursuit of the pendent state claim. See 28 U.S.C.A. § 1367 (Westlaw

through Pub. L. No. 119-4). Hence, the federal court can and presumably will

decide that issue when addressing the pendent state claim. See, e.g., Steeves v.

City of Rockland, 600 F. Supp. 2d 143, 182-85 (D. Me. 2009); Martin v. Somerset

Cnty., 387 F. Supp. 2d 65, 81-83 (D. Me. 2005).9

[¶25] The issue, then, is whether it is appropriate to forgo ruling on the

immunity issue in deference to ongoing federal litigation. That question

depends on whether deference to the federal court serves the interests of

justice. Cf. Fitch v. Whaples, 220 A.2d 170, 172-73 (Me. 1966); Cutler Assocs.,

Inc. v. Merrill Tr. Co., 395 A.2d 453, 456-57 (Me. 1978). We believe that it does.10

III. CONCLUSION

[¶26] The issue of whether the defendants are exempt from the MHSA is

not immediately appealable. With regard to the claims of entitlement to

immunity, we decline to hear that interlocutory appeal in deference to the

9 In our federalist system, just as we may decide claims under § 1983, e.g., Hicks v. City of
Westbrook, 649 A.2d 328, 329-31 (Me. 1994), the federal court may decide pendent state claims.
See Haywood v. Drown, 556 U.S. 729, 731, 734 (2009); Felder v. Casey, 487 U.S. 131, 139 (1988).

10 Because we elect to forgo ruling on the immunity issue in deference to the ongoing federal
litigation, we decline to reach the arguments presented regarding the MTCA.
16

federal court. Hence, we dismiss the appeal with the understanding that the

screening process under the MHSA will proceed. After that screening process

is completed, it is our understanding that the federal district court intends to

proceed with the litigation pending before it.

The entry is:

Appeal dismissed.

Peter T. Marchesi, Esq. (orally), and Michael D. Lichtenstein, Esq., Wheeler &
Arey, P.A., Waterville, for appellants Hancock County, Scott Kane, Timothy
Richardson, Frank Shepard, Noah Lewey, Travis Young, Russell Wilson,
Christopher Stanley, and Jillian Jones

John J. Wall, III, Esq. (orally), Monaghan Leahy, LLP, Portland, for appellant
Kayla Dumond

Scott J. Lynch, Esq. (orally), Lynch & Van Dyke, P.A., Lewiston, for appellees
Stewart Carney Jr. and the Estate of Monica Jean Johnson

Aaron M. Frey, Attorney General, and Jonathan R. Bolton, Asst. Atty. Gen., Office
of the Attorney General, Augusta, for amicus curiae Attorney General

Penobscot County Superior Court docket number CIV-2021-74
FOR CLERK REFERENCE ONLY