KRISTIANSEN v. TOWN OF KITTERY et al

Filing 81

MEMORANDUM DECISION ON MOTION FOR SUMMARY JUDGMENT as 57 Motion for Summary Judgment By MAGISTRATE JUDGE JOHN H. RICH III. (nrg)

Case 2:18-cv-00420-JHR Document 81 Filed 09/06/21 Page 1 of 17

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KATHLEEN A. KRISTIANSEN,
Plaintiff
v.
TOWN OF KITTERY et al.,
Defendants

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No. 2:18-cv-00420-JHR

MEMORANDUM DECISION ON MOTION FOR SUMMARY JUDGMENT
In this civil rights action, the plaintiff alleges that various officers of the Kittery Police
Department failed to arrest a man who sexually assaulted her when she was a minor in the late
1970s and withheld that man’s written confession from her until 2011, when it was too late to
prosecute him. See Complaint for a Civil Suit (“Complaint”) (ECF No. 1). She seeks relief under
42 U.S.C. §§ 1983 and 1985 for what she claims were violations of her constitutional rights and a
conspiracy to cover up her assault. See id. at 9. The defendants remaining in this case – the Town
of Kittery, Edward F. Strong, Robert S. Hundley, and Steve Hamel – have filed a motion for
summary judgment on all claims. See Defendants’ Motion for Summary Judgment (“Motion”)
(ECF No. 57) at 1. Because I conclude that the plaintiff’s claims are time-barred, I grant the
defendants’ motion.
I. Summary Judgment Standard
Summary judgment is appropriate “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); Ahmed v. Johnson, 752 F.3d 490, 495 (1st Cir. 2014). “A dispute is genuine
if ‘the evidence about the fact is such that a reasonable jury could resolve the point in favor of the

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non-moving party.’”

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Johnson v. Univ. of P.R., 714 F.3d 48, 52 (1st Cir. 2013) (quoting

Thompson v. Coca-Cola Co., 522 F.3d 168, 175 (1st Cir. 2008)). “A fact is material if it has the
potential of determining the outcome of the litigation.” Id. (quoting Maymi v. P.R. Ports Auth.,
515 F.3d 20, 25 (1st Cir. 2008)).
The party moving for summary judgment must demonstrate an absence of evidence to
support the nonmoving party’s case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In determining whether this burden is met, the court must view the record in the light most
favorable to the nonmoving party and give that party the benefit of all reasonable inferences in its
favor. Johnson, 714 F.3d at 52. Once the moving party has made a preliminary showing that no
genuine issue of material fact exists, the nonmovant must “produce specific facts, in suitable
evidentiary form, to establish the presence of a trialworthy issue.” Brooks v. AIG SunAm. Life
Assur. Co., 480 F.3d 579, 586 (1st Cir. 2007) (quoting Clifford v. Barnhart, 449 F.3d 276, 280
(1st Cir. 2006) (emphasis omitted)); Fed. R. Civ. P. 56(c). “As to any essential factual element of
its claim on which the nonmovant would bear the burden of proof at trial, its failure to come
forward with sufficient evidence to generate a trialworthy issue warrants summary judgment to the
moving party.” In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001) (citation and internal punctuation
omitted).
The evidence that the court may consider in deciding whether genuine issues of material
fact exist for purposes of summary judgment is circumscribed by the local rules of this district.
See Local Rule 56. The moving party must first file a statement of material facts that it claims are
not in dispute. See Local Rule 56(b). Each fact must be set forth in a numbered paragraph and
supported by a specific record citation. See id. The nonmoving party must then submit a
responsive “separate, short, and concise” statement of material facts in which it must “admit, deny

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or qualify the facts by reference to each numbered paragraph of the moving party’s statement of
material facts[.]” Local Rule 56(c). The nonmovant likewise must support each denial or
qualification with an appropriate record citation. See id. The nonmoving party may also submit
its own additional statement of material facts that it contends are not in dispute, each supported by
a specific record citation. See id. The movant then must respond to the nonmoving party’s
statement of additional facts, if any, by way of a reply statement of material facts in which it must
“admit, deny or qualify such additional facts by reference to the numbered paragraphs” of the
nonmovant’s statement. See Local Rule 56(d). Again, each denial or qualification must be
supported by an appropriate record citation. See id.
Local Rule 56(f) directs that “[f]acts 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.” In addition, “[t]he court may disregard any statement of fact not
supported by a specific citation to record material properly considered on summary judgment” and
has “no independent duty to search or consider any part of the record not specifically referenced
in the parties’ separate statement of fact.”

Id.; see also, e.g., Borges ex rel. S.M.B.W. v.

Serrano-Isern, 605 F.3d 1, 5 (1st Cir. 2010); Fed. R. Civ. P. 56(e)(2) (“If a party fails to properly
support an assertion of fact or fails to properly address another party’s assertion of fact as required
by Rule 56(c), the court may . . . consider the fact undisputed for purposes of the motion[.]”).
II. Procedural History
The plaintiff filed her pro se complaint on October 11, 2018. See Complaint. Two
defendants – the Town of Kittery and the Kittery Police Department – filed a motion to dismiss
the claims against them, see Defendants Town of Kittery and Kittery Police Department’s Motion
to Dismiss (ECF No. 8), which was granted with respect to the Kittery Police Department and

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denied with respect to the Town of Kittery, see Recommended Decision on Motion to Dismiss
(ECF No. 11); Order Affirming Recommended Decision (ECF No. 20). Thereafter, the parties
consented to have me preside over all proceedings in this action, including the entry of judgment.
See Consent to Magistrate Judge (ECF No. 31).
The plaintiff obtained counsel, who entered his appearance in June 2020. See Notice of
Appearance by James P. Loring (ECF No. 41). In October 2020, the defendants filed a notice of
their intent to move for summary judgment, see Defendants’ Notice of Intent to File Summary
Judgment Motion and Request for Pre-Filing Conference (ECF No. 47), and I conducted a
pre-filing conference in November 2020 pursuant to Local Rule 56(h), see Report of Pre-Filing
Conference Under Local Rule 56(h) (ECF No. 56). The defendants filed their motion for summary
judgment and accompanying statement of material facts in January 2021. See Motion; Defendants’
Statement of Material Facts (DSMF) (ECF No. 60). Subsequently, the plaintiff’s attorney moved
to withdraw. See Assented-to Motion to Withdraw as Counsel for the Plaintiff (ECF No. 61).
While that motion to withdraw was pending, the plaintiff filed a pro se response to the defendants’
motion for summary judgment. See [Plaintiff’s Response in Opposition to Motion for Summary
Judgment] (“Response”) (ECF No. 63).
I held a hearing on the motion to withdraw in February 2021, see Minute Entry
(ECF No. 67), during which I indicated to the plaintiff that I would not normally permit counsel
to withdraw in the midst of summary judgment briefing due to the technical nature of the process.
The plaintiff and her attorney represented that when the attorney had become ill with COVID-19,
the plaintiff opted to draft her response to the defendants’ motion herself rather than request an
extension of time. They also assured me that (i) their parting was amicable, (ii) the attorney had
been available to the plaintiff during the drafting of her response had she asked for assistance with

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the more technical aspects of summary judgment, (iii) the plaintiff was comfortable proceeding
with her case on a pro se basis, and (iv) she was satisfied with her response to the defendants’
motion for summary judgment as she had drafted it. Based on those representations, I granted the
motion to withdraw. See Order Granting without Objection Motion to Withdraw as Attorney (ECF
No. 68).
The following month, the defendants filed their reply to the plaintiff’s response.
See Defendants’ Reply Memorandum in Support of Motion for Summary Judgment (“Reply”)
(ECF No. 69). They pointed out that the plaintiff had failed to admit, deny, or qualify any of the
facts contained in their statement of material facts in accordance with Local Rule 56(c) and argued
that their facts should, therefore, be deemed admitted. See id. at 1. Thereafter, the plaintiff filed
a document styled as an amended response to the defendants’ motion for summary judgment in
which she attempted to address the technical deficiencies identified by the defendants.
See Plaintiff’s Amended [Response] to Defendants[’] Motion for Summary Judgment with
Opposing Facts (“Amended Response”) (ECF No. 73). I subsequently permitted the defendants
to file a limited response in opposition to the plaintiff’s amended response, which they did in late
April 2021. See Order Granting Motion for Leave to File Limited Response (ECF No. 79);
Defendants’ Limited Response to Plaintiff’s Amended and Supplemental Summary Judgment
Filings (“Defendants’ Limited Response”) (ECF No. 80).
III. Factual Background
A. Defendants’ Facts Deemed Admitted
Before outlining the facts, I must first address the defendants’ assertion that the plaintiff
has failed to abide by Local Rule 56 in her summary judgment briefing and, if the defendants are
correct, how that failure impacts the facts I consider in deciding their motion.

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By way of background, the First Circuit has frequently emphasized the importance of local
summary judgment rules such as Local Rule 56. See, e.g., Cabán Hernández v. Philip Morris
USA, Inc., 486 F.3d 1, 7 (1st Cir. 2007). The procedural requirements of Local Rule 56, as outlined
above, are designed to focus the “court’s attention on what is – and what is not – genuinely
controverted[,]” Calvi v. Knox Cnty., 470 F.3d 422, 427 (1st Cir. 2006), and to prevent “parties
from shifting to the . . . court the burden of sifting through the inevitable mountain of information
generated by discovery in search of relevant material[,]” P.R. Am. Ins. Co. v. Rivera-Vázquez,
603 F.3d 125, 131-32 (1st Cir. 2010) (citation and internal quotation marks omitted). Given these
important purposes, the First Circuit has warned that litigants ignore the requirements of rules like
Local Rule 56 at their own peril. See Ruiz Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000),
abrogated on other grounds by De Aza-Paez v. United States, 343 F.3d 552 (1st Cir. 2003).
The plaintiff’s original response to the defendants’ motion contravenes Local Rule 56 in
several ways. Most importantly, it fails to admit, deny, or qualify any of the defendants’ 88
statements of fact. Compare DSMF with Response at 2-16; see also Local Rule 56(c); Learnard
v. Inhabitants of Van Buren, 182 F. Supp. 2d. 115, 119-20 (D. Me. 2002) (noting that it is not the
court’s job to “pore through the record and try to glean which of the Plaintiff’s statements admits,
denies, or qualifies which of the Defendants’”). Moreover, regardless of whether the plaintiff’s
response is construed as an “opposing” or an “additional” statement of facts, it fails to qualify as
“separate, short and concise” or to supply, with respect to every statement, “a citation to the
specific page or paragraph of identified record material supporting the assertion.” Local Rule
56(c), (f). Instead, the plaintiff’s response contains 37 numbered paragraphs, consisting of nearly
200 sentences, that set forth facts – interspersed with opinion and argument – that are largely
unsupported by any record citations. See Response at 2-16. And the few record citations that are

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included generally fail to point to specific pages or paragraphs in the cited material. See id.; Local
Rule 56(f) (“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.”).
The plaintiff’s attempt to fix these shortcomings in an amended response falls flat for two
reasons. First, because the plaintiff explicitly reaffirmed her confidence in her original response
during the hearing on her former counsel’s motion to withdraw, I agree with the defendants that
she has not shown good cause for allowing her a do-over after the defendants expended significant
time and energy replying to her original response. See Defendants’ Limited Response at 2-3.1
Second, even if I were to consider the plaintiff’s amended response, it fails to comply with Local
Rule 56 in much the same manner as her original response. Indeed, the only discernible difference
between the plaintiff’s original and amended responses is that she purports to admit and/or deny
the defendants’ facts in her amended response. Compare Response with Amended Response.
However, because she does not reference each of the defendants’ facts by paragraph number and,
more importantly, does not support her denials with any record citations, her amended response
does not properly controvert the defendants’ facts either. See Amended Response at 1-4; Local
Rule 56(c).2
The plaintiff’s pro se status does not excuse her noncompliance with Local Rule 56.
First and foremost, as the defendants point out, see Defendants’ Limited Response at 2-3, the

The plaintiff argues that Federal Rule of Civil Procedure 56(e) gives parties “the opportunity to amend their reply
to properly address the other parties’ assertion of facts[.]” Amended Response at 1. In actuality, the rule gives courts
discretion in deciding how to treat a party’s failure to properly address a fact. See Fed. R. Civ. P. 56(e). Courts may,
among other options, “give an opportunity to properly . . . address the fact” or “consider the fact undisputed for
purposes of the motion[.]” Id.
2
The plaintiff also filed a supplemental affidavit apparently to support to the facts she put forth in her response and
amended response. See Plaintiff’s Supplemental Affidavit in Support of Plaintiff’s Statement of Facts (ECF No. 71).
She did not, however, cite to the supplemental affidavit in her amended response, so it does nothing to remedy her
violations of Local Rule 56. See Local Rule 56(f) (“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.”).
1

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plaintiff was not unrepresented when she filed her response. Rather, she chose to draft her response
on her own and, in doing so, apparently opted not to utilize her counsel’s available expertise.
See FDIC v. Anchor Props., 13 F.3d 27, 31 (1st Cir. 1994) (noting that a plaintiff’s
“characterization of himself as a pro se litigant [wa]s at best dubious” when he appeared on his
own behalf at a summary judgment hearing but “had no fewer than two attorneys of record”).
Moreover, even if the plaintiff were a more typical pro se filer, the First Circuit has consistently
held that a party’s unrepresented status does not absolve her of the obligation to follow the court’s
procedural rules. See, e.g., Ruiz Rivera, 209 F.3d at 28 n.2; Anchor Props., 13 F.3d at 31; see also
Lacadie v. Town of Milford, Civ. No. 07-101-B-W, 2008 WL 1930410, at *2 (D. Me. May 1, 2008)
(rec. dec., aff’d June 19, 2008) (“Proceeding pro se does not otherwise relieve a litigant of the
usual requirements of summary judgment . . . .” (alterations, citations, and internal quotation marks
omitted)).
As Judge Hornby noted in a recent decision on summary judgment, “Judges reviewing
summary judgment motions must be able to rely on procedural rules so as to avoid becoming the
lawyer for the unrepresented plaintiff or devoting an excessive portion of their time to such cases.”
Murray v. Walmart Stores Inc., Civil No. 2:15-cv-00484-DBH, 2019 WL 6689900, at *5 (D. Me.
Dec. 6, 2019) (citation and internal quotation marks omitted). To excuse the plaintiff’s failures to
comply with Local Rule 56 would undermine the important functions served by the rule and leave
the court to do the plaintiff’s work of identifying whether there are any triable issues of fact; not
only would that exceed the court’s proper role, but it would also be unfair to the defendants.
See P.R. Am. Ins. Co., 603 F.3d at 132 (noting that local summary judgment rules “must be
administered evenhandedly and applied consistently” to ensure the “[f]undamental fairness” of the
process, and that courts may only deviate from such rules when there is “a sound reason for doing

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so” and “no party’s substantial rights are unfairly jeopardized”) (citation and internal quotation
marks omitted); Rodríguez-Díaz v. Cruz-Colón, 878 F. Supp. 2d 333, 338 (D.P.R. 2012) (“By
submitting completely non-responsive opposing statements of facts, Plaintiff asks the court to
reconcile [hundreds of] statements of fact and then discern whether any genuine issue of material
fact exists. That is not the proper role of the court and the court will not endeavor to do Plaintiff’s
work for him.”) (footnote omitted).
Accordingly, in light of the plaintiff’s failure to properly controvert the defendants’ facts
and or to set forth additional facts in accordance with the requirements of Local Rule 56, I deem
the defendants’ facts admitted and disregard the statements of fact in the plaintiff’s response and
amended response. See Cabán Hernández, 486 F.3d at 6-8 (affirming a district court decision to
deem a moving party’s statement of material facts admitted and disregard an opposing party’s
responsive statement where the opposing party failed to admit, deny, or qualify the moving party’s
statement of material facts and failed to support its facts with specific citations to the record in
contravention of the local summary judgment rules); Learnard, 182 F. Supp. 2d at 119-20 & n.1
(deeming a moving party’s statement of material facts admitted and disregarding the opposing
party’s responsive statement because it failed to admit, deny, or qualify any of the moving party’s
facts and contravened Local Rule 56 in several other ways); Dermalogix Partners, Inc. v. Corwood
Labs., Inc., No. Civ. 99-149-P-C, 2000 WL 760732, *1 n.1 (D. Me. Mar. 14, 2000) (deeming a
moving party’s statement of material facts admitted and disregarding the opposing party’s
responsive statement “altogether” because it failed to comply with Local Rule 56).3
Because I am disregarding the plaintiff’s facts, I need not consider the defendants’ reply to those facts or the
plaintiff’s opposition to the defendants’ reply. See Defendants’ Reply Statement of Material Facts (ECF No. 70);
Plaintiff’s Objections to Defendant[s’] Reply Statement of Material Facts (ECF No. 74); Rodríguez-Díaz, 878 F. Supp.
2d at 338 n.1 (“[A]s the court has excluded Plaintiff’s opposing statements of uncontested fact, the court need not
analyze Defendants[’] reply.”). I will, however, consider the legal arguments raised by the plaintiff in her original
response – to the extent they do not rely on facts not properly before me – and the defendants’ reply to those legal
arguments.
3

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That the defendants’ facts are the only ones properly before me does not, however,
automatically entitle them to summary judgment.

Rather, I must still inquire whether the

defendants have met their burden to demonstrate undisputed facts entitling them to summary
judgment as a matter of law. See Szillery v. Career Sys. Dev. Corp., No. CV-08-62-B-W,
2008 WL 2789492, at *2 (D. Me. July 17, 2008) (“[E]ven if the pro se plaintiff fails to respond to
the statements of material fact, the court is still required to inquire whether the moving party has
met its burden to demonstrate undisputed facts entitling it to summary judgment as a matter of
law.”) (citation and internal quotation marks omitted).
B. Undisputed Facts
For summary judgment purposes, the facts in the defendants’ statement of material facts,
deemed admitted to the extent they are supported by the record citations given, see Local Rule
56(f), reveal the following.
On March 12, 1978, the plaintiff’s father reported to the Kittery Police Department that the
plaintiff had run away from home in New Hampshire and had been seen at an apartment building
on Government Street in Kittery. DSMF ¶ 14. Kittery police officers were unable to locate her at
the Government Street apartment building, but Officer Ronald Avery obtained information
indicating that the plaintiff had been seen there drinking alcohol in the apartment of a 31-year-old
man named Glenn Erlandson. Id. ¶¶ 15-16, 77. After the plaintiff was located, she was interviewed
by Portsmouth Police Department Youth Aide Mary Larin; the plaintiff told Larin that Erlandson
had provided her and a friend with alcohol and had begun kissing and fondling her at which point
she freed herself from him and left. Id. ¶¶ 17-18. During an interview with Avery and Larin on
March 17, 1978, the plaintiff reported that she had been raped by Erlandson in August or
September 1977 while under the influence of alcohol that he had provided her. Id. ¶ 19.

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On March 24, 1978, Erlandson agreed to provide a written statement to Avery regarding
his relationship with the plaintiff. Id. ¶ 21. In his written statement, Erlandson admitted to meeting
the plaintiff in August or September 1977 but said he had first had sexual contact with her, which
did not include intercourse, a month or two after they first met. Id. ¶ 23. Erlandson wrote that the
plaintiff had told him she was 17 years old at the time, and he described any sexual contact between
them as voluntary and initiated by the plaintiff. Id. ¶¶ 24, 26. He did not state that he had provided
the plaintiff with any alcohol. Id. ¶ 26.
The day after obtaining Erlandson’s written statement, Avery met with York County
Assistant District Attorney Joseph Warnermarker. Id. ¶ 33. Warnermarker told Avery that the
District Attorney’s Office would pursue charges against Erlandson of assault and endangering the
welfare of a child. Id. ¶ 33. On April 3, 1978, however, Avery, Larin, the plaintiff, the plaintiff’s
parents, and Erlandson met and reached an agreement whereby Erlandson would be ordered to
stay away from the plaintiff, the plaintiff would be directed to stay out of Kittery, and no criminal
charges would be pursued. Id. ¶ 35.
Twenty-four years later, in 2002, the plaintiff contacted Kittery Police Detective Steve
Hamel regarding her 1970s rape allegation against Erlandson. Id. ¶ 83. Hamel told her that he
would investigate the matter but never contacted her to update her on the investigation and did not
respond when she attempted to contact him on several subsequent occasions. Id. ¶¶ 83-84.
In May 2011, Hamel received a call from Portsmouth Police Department Detective Kristyn
Bernier to discuss a complaint that she had received from the plaintiff regarding the alleged rape
in the 1970s. Id. ¶ 38. Bernier told Hamel that the plaintiff had supplied her with four handwritten
statements describing the reported rape and other interactions with Erlandson. Id. ¶ 39. That same
month, Hamel attended a videotaped interview of the plaintiff conducted by Bernier in which the

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plaintiff described an incident in January 1977 during which Erlandson had removed her clothes
and had intercourse with her. Id. ¶¶ 40-41. Following the interview, Hamel provided a recording
of the interview along with his report and the plaintiff’s handwritten statements to the York County
District Attorney’s Office for a decision regarding a criminal prosecution of Erlandson. Id. ¶ 42.
Thereafter, Hamel had a conversation with Avery and learned that Avery had investigated
an incident involving the plaintiff and Erlandson decades earlier. Id. ¶ 43. Avery couldn’t
remember much about the case except that it had ended without a criminal prosecution by
agreement of all involved. Id. In July 2011, Hamel located Avery’s original 1978 file and noted
that the August or September 1977 date of the alleged rape that the plaintiff provided to Avery and
Larin in March 1978 was inconsistent with the January 1977 date she provided in her interview
with Bernier. Id. ¶ 46. Hamel also originally believed that Erlandson admitted to having sex with
the plaintiff when she was 13, as she was claiming in 2011, but he later learned that the plaintiff
would have been 14 years old in the late summer and fall of 1977, which is when Erlandson
admitted to having sexual contact with the plaintiff. Id. ¶¶ 47-48. Hamel provided the entire
original 1978 investigative file, including Erlandson’s written statement, to the York County
District Attorney’s Office. Id. ¶ 50.
Assistant District Attorney Thaddeus West was assigned to determine whether a criminal
prosecution could be initiated against Erlandson in 2011 for an alleged rape that occurred in 1977.
Id. West reviewed the entire 1978 investigative file and determined that Erlandson had not
admitted to any conduct in his March 1978 statement for which he could have been charged with
rape or gross sexual misconduct in 1978. Id. ¶ 51. Based on his review of the plaintiff’s claims,
West concluded that the statute of limitations for charging Erlandson for the alleged 1977 rape
would have expired in the mid-1980s at the latest. Id. ¶¶ 52-55. At Hamel’s request, West met

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with the plaintiff and two victim advocates on March 8, 2012, and explained his conclusion that
the statute of limitations barred a prosecution of Erlandson at that time. Id. ¶¶ 56-58. The plaintiff
subsequently obtained a copy of the 1978 investigation file in March or April 2012. Id. ¶¶ 62-64.
IV. Discussion
In her complaint, the plaintiff alleges that the defendants violated her constitutional rights
when they failed to arrest and/or charge Erlandson in 1978 and conspired to hide his confession
from her until 2011, when it was too late to prosecute him. See Complaint at 6-9. She brings equal
protection and other constitutional claims pursuant to 42 U.S.C. § 1983, as well as a civil rights
conspiracy claim pursuant to 42 U.S.C. § 1985, against (i) Hamel, (ii) Hundley, who was the chief
of the Kittery Police Department in 1978, (iii) Strong, who was the chief of Kittery Police
Department when the plaintiff had contact with Hamel in 2002 and 2011-12, and (iv) the Town of
Kittery. See id. at 2-9; DSMF ¶¶ 1, 68. She originally also brought claims against both Avery and
Gary D. Finley, who worked for the Kittery Police Department in 1978. See Complaint at 2-3, 67. However, she did not object to the dismissal of her claims against Avery following his death in
March 2020, see Defendants’ Statement Noting Death of Party Pursuant to F.R.Civ.P. 25 (ECF
No. 35); Order Granting without Objection Motion to Dismiss (ECF No. 46), and stipulated to the
dismissal of her claims against Finley, see Stipulation of Dismissal [of Defendant Gary D. Finley]
(ECF No. 55).
Sections 1983 and 1985 “borrow the forum state’s statute of limitations for personal injury
claims[,]” Rodríguez-García v. Mun. of Caguas, 354 F.3d 91, 96 (1st Cir. 2004), “as well as its
coordinate tolling rules,” Ouellette v. Beaupre, 977 F.3d 127, 135 (1st Cir. 2020) (citation and

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internal quotation marks omitted).4 Maine’s statute of limitations for all unenumerated civil
actions, including personal injury torts, is six years from the date of accrual. See 14 M.R.S.A.
§ 752 (Westlaw through 2021 1st Special Sess.). Under Maine’s related tolling statute, a cause of
action that accrues while a plaintiff is a minor will not expire until six years after the plaintiff
reaches the age of majority. See 14 M.R.S.A. § 853 (Westlaw through 2021 1st Special Sess.);
Ouellette, 977 F.3d at 135.5
“Although federal courts look to state law for the statute of limitations and tolling
principles,” the date a section 1983 or 1985 claim accrues “is a question of federal law that is not
resolved by reference to state law.” Ouellette, 977 F.3d at 135. Generally, a claim accrues when
a “plaintiff has a complete and present cause of action, that is, when the plaintiff can file suit and
obtain relief.” Wallace v. Kato, 549 U.S. 384, 388 (2007) (citations and internal quotation marks
omitted). A “plaintiff has a complete and present cause of action when all of the acts comprising
the specific constitutional violation have been completed.” Ouellette, 977 F.3d at 136 (citations
and internal quotation marks omitted). “However, pursuant to the federal discovery rule, accrual
is delayed until the plaintiff knows, or should know of those acts.” Id. For section 1985 claims
involving a continuing conspiracy to violate civil rights, “the statute of limitations runs separately
from the occurrence of each civil rights violation that causes actual damage to the plaintiff (as long

4

The plaintiff cites Meiselman v. Richardson, 743 F. Supp. 143 (E.D.N.Y. 1990), for the proposition that there is no
statute of limitations for federal civil rights violations. See Response at 19-20. She is correct to a certain degree;
neither section 1983 nor section 1985 contain built-in statutes of limitations. However, as the Meiselman court noted,
“Congressional silence did not provide plaintiffs an unlimited time within which to commence” a section 1983 action.
Meiselman, 743 F. Supp. at 145. “Rather, the courts must look to an appropriate state statute to govern such actions[.]”
Id.
5
Section 752 has not been amended since 1978. See 14 M.R.S.A. § 752 (Westlaw) (listing the legislative history of
section 752 and noting that it was last amended in 1963). Section 853 has been amended twice since 1978, but not in
a substantive way. See 14 M.R.S.A. § 853 (Westlaw) (listing the legislative history of section 853 and noting that it
was amended in 1985 and 2013); P.L. 1985, ch. 343, § 2 (amending the cross-references in section 853); P.L. 2013,
ch. 329, § 1 (same).

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as the plaintiff knows or should have known of the injury).” Nieves v. McSweeney, 241 F.3d 46,
51 (1st Cir. 2001).
The plaintiff was 14 years old in March 1978 when Avery investigated her allegations
against Erlandson and failed to arrest or charge him. See DSMF ¶ 27. She reached the age of
majority in 1981. Thus, under Maine’s statute of limitations and tolling provision, she would have
had to bring any claims against the defendants that accrued in 1978 by no later than 1987.
See 14 M.R.S.A. §§ 752, 853 (Westlaw).
With regard to the plaintiff’s contact with Hamel in 2002 and his failure to investigate her
allegations against Erlandson and/or follow up with her, any claims that accrued during that time
period would have had to have been brought by approximately 2008. As the defendants point out,
see Motion at 15-16, even giving the plaintiff the benefit of the doubt and assuming that it took
her a few years to realize that Hamel was not going to do anything with her case, her October 2018
complaint is clearly untimely as to any claims that accrued by the mid-2000s. See 14 M.R.S.A. §
752 (Westlaw).
That leaves the 2011-12 time period. The plaintiff had contact with Hamel again in
May 2011, learned around that same time of the existence of Erlandson’s 1978 written statement,
was told by West in March 2012 that the York County District Attorney’s Office had concluded
that the statute of limitations barred prosecution of Erlandson, and received a copy of the entire
1978 investigation file, including Erlandson’s statement, no later than April 2012. See DSMF
¶¶ 40, 58, 61, 63-64, 66.
The plaintiff alleges that Erlandson’s statement was a confession that the defendants kept
hidden from her for decades and seems to suggest that the discovery of the statement illuminated
the defendants’ liability. See Complaint at 6. The defendants dispute that Erlandson confessed to

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any crime in his statement. See Motion at 9-11.6 Even accepting the plaintiff’s characterization
of the statement as a confession, however, and assuming that she could not have brought any of
her claims before she learned of its existence, she had a copy of the statement in her possession by
April 2012. See DSMF ¶¶ 63-64. Accordingly, all the facts underlying the plaintiff’s claims – the
failure to arrest and/or charge Erlandson, the failure to investigate in 2002, and the hiding of the
confession until 2011 when it was too late to prosecute Erlandson – were revealed to her by no
later than April 2012 and thus accrued more than six years before she filed her complaint in
October 2018. See Ouellette, 977 F.3d at 139 (noting that a claim accrues “once a plaintiff is
armed with the necessary factual predicate to file suit, including knowledge of both an injury and
the injury’s likely causal connection with the putative defendant[s]”).7
In summary, even when viewed in the light most favorable to the plaintiff as the nonmoving
party, the facts before me on summary judgment establish that the plaintiff’s claims – whether
based on conduct by the defendants in 1978, 2002, or 2011-12 – all accrued more than six years
before she filed her complaint in October 2018. They are, therefore, barred by Maine’s six-year
statute of limitations, and the defendants are entitled to summary judgment on that basis.
See 14 M.R.S.A. § 752 (Westlaw).8

6

The defendants correctly point out that Erlandson only admitted in his statement to having consensual sexual contact
with the plaintiff when she would have been 14, which was the age of consent in Maine in 1978. See Motion at 9-11;
[Statement of Glenn Erlandson dated March 24, 1978], contained in Exh. A to Declaration of Steven Hamel (ECF No.
60-1), at 22-25; 14 M.R.S.A. §§ 252, 253 (Pamph. 1978) (defining the crimes of rape and gross sexual misconduct).
7
The plaintiff also alleges in her complaint that Hamel failed to turn over evidence from his 2011 investigation to the
York County District Attorney’s Office. See Complaint at 8-9. Even if the plaintiff’s claims based on that alleged
failure accrued within six years of the filing of her complaint – which is unlikely given that the plaintiff seems to
suggest that she learned of this alleged failure in September 2011, see Response ¶ 19, and had possession by April
2012 of the file turned over to the District Attorney’s Office, see id. ¶ 22 – the claims nevertheless fail because the
plaintiff has not properly controverted the defendants’ statement of fact indicating that Hamel did turn over the
evidence from his 2011 investigation to the District Attorney’s Office, see DSMF ¶ 42.
8
Given this conclusion, I need not and do not reach the defendants’ additional arguments as to why they are entitled
to summary judgment. See Motion at 17-42.

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V. Conclusion
For the foregoing reasons, I GRANT the defendants’ motion for summary judgment as to
all claims against them.
Dated this 6th day of September, 2021.

/s/ John H. Rich III
John H. Rich III
United States Magistrate Judge

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