2004 | Cited 0 times | D. Maine | March 30, 2004


Defendants the Maine State Police ("MSP"), John R. Hainey and theOxford County District Attorney's Office ("DA's Office") (collectively,"State Defendants") seek summary judgment as to all counts against themin this action arising from the May 9, 2001 arrest of plaintiff John E.Cox, III, on drug-trafficking charges. See Amended Motion forSummary Judgment by the State of Maine Defendants, Maine State Police,Trooper John R. Hainey and the Oxford County District Attorney's Office("Defendants' S/J Motion") (Docket No. 19) at 1-2; Amended Complaint andJury Trial Demand ("Complaint"), attached as Exh. 6 to Petition &Notice of Removal of Defendants ("Removal Notice") (Docket No. 1), ¶10.1 Incident thereto, the State Defendants seek to strike certainportions of Cox'sPage 2statement of additional material facts. See Response to"Plaintiff's Statement of Material Facts in Dispute" with IncorporatedObjections and Motions To Strike by the State of Maine Defendants("Defendants' Reply SMF/Motion To Strike") (Docket No. 29). For thereasons that follow, I grant in part and deny in part the motion tostrike and recommend that the motion for summary judgment be granted inpart and denied in part.

I. Summary Judgment Standards

Summary judgment is appropriate only if the record shows "that there isno genuine issue as to any material fact and that the moving party isentitled to a judgment as a matter of law." Fed R. Civ. P. 56(c). "Inthis regard, `material' means that a contested fact has the potential tochange the outcome of the suit under the governing law if the disputeover it is resolved favorably to the nonmovant. . . . By like token,`genuine' means that `the evidence about the fact is such that areasonable jury could resolve the point in favor of the nonmovingparty. . . .'" McCarthy v. Northwest Airlines, Inc.,56 F.3d 313, 315 (1st Cir. 1995) (citations omitted). The party moving forsummary judgment must demonstrate an absence of evidence to support thenonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317,325 (1986).

In determining whether this burden is met, the court must view therecord in the light most favorable to the nonmoving party and give thatparty the benefit of all reasonable inferences in its favor. CadleCo. v. Hayes, 116 F.3d 957, 959 (1st Cir. 1997). Once the movingparty has made a preliminary showing that no genuine issue of materialfact exists, "the nonmovant must contradict the showing by pointing tospecific facts demonstrating that there is, indeed, a trialworthy issue."National Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 735(1st Cir. 1995) (citing Celotex, 477 U.S. at 324); Fed.R. Civ.P. 56(e). "This isPage 3especially true in respect to claims or issues on which thenonmovant bears the burden of proof." International Ass'n ofMachinists & Aerospace Workers v. Winship Green Nursing Ctr.,103 F.3d 196, 200 (1st Cir. 1996) (citations omitted).

II. Factual Context

A. Motion To Strike

As a threshold matter I address the State Defendants' motion to strike,which defines in part the factual backdrop against which their motion forsummary judgment must be decided The State Defendants object to, and moveto strike, three paragraphs of Cox's statement of additional materialfacts: paragraphs 8, 10 and 11. See Plaintiff's Statement ofMaterial Facts in Dispute ("Plaintiff's Additional SMF") (Docket No. 26)¶¶ 8, 10-11; Defendants' Reply SMF/Motion To Strike ¶¶ 8, 10-11. Irule as Mows:

1. Paragraph 8: Granted. The State Defendants object onhearsay grounds to Cox's statement (supported by his affidavit) thatattorney Thomas Hallett, who represented Cox's son, informed Cox thatAssistant District Attorney Richard Beauchesne told him that Cox's sonwas paying for the "sins of his father." See Defendants' ReplySMF/Motion To Strike ¶ 8. Cox rejoins that he offers the statementnot for the truth of the matter asserted — that his son was payingfor his sins — but to show bias and prejudice on the part ofBsauchesne and the DA's Office. See Opposition to Defendant's[sic] Motion To Strike Plaintiff's Statement of Material Facts in Dispute("Plaintiff's Strike Opposition") (Docket No. 31) at [1]-[2]. Cox'sargument is unpersuasive. The matter being asserted, in this case, isthat Beauchesne said the words attributed to him, and Cox offers thestatement for the truth of that proposition. In any event, as the StateDefendants note, see Defendants' Reply SMF/Motion To Strike¶ 8, for purposes of summary judgment an affiant's statements must bemade on personal knowledge, see Fed.R.Civ.Pro. 56(e). Cox hadno personal knowledge that Beauchesne made the statement in question.Page 4

2. Paragraph 10: Denied. The State Defendants object to Cox'sstatement that his bail conditions caused him emotional distress and painand suffering, asserting that (i) Cox adduces insufficient evidence thathe had personal knowledge of these matters within the meaning of FederalRule of Evidence 602 and (ii) the statement constitutes improper opiniontestimony pursuant to Federal Rule of Evidence 701. SeeDefendants' Reply SMF/Motion To Strike ¶ 10.2 Cox protests thatthis is counterintuitive. See Strike Opposition at [2]-[3].

To the extent that it is not self-evident that an individual would havepersonal knowledge that a certain event caused him or her emotionaldistress, Cox's affidavit adequately details the basis for suchknowledge: e.g., that he was wrongfully arrested on drugcharges, released on bail conditions that prohibited contact with anyoneunder nineteen years old (including his children) and that theseconditions caused him emotional distress. See Affidavit of JohnE. Cox III ("Cox Aff") (Docket No. 25) ¶¶ 11-29. Itaccordingly passes muster pursuant to Rule 602.

Nor does Cox's opinion constitute improper lay testimony for Rule 701purposes. While a lay witness is not competent to offer a self-diagnosisof the cause or nature of a mental impairment, see, e.g., Ferris v.Pennsylvania Fed'n Bhd. of Maint. of Way Employees, 153 F. Supp.2d 736,746 (E.D. Pa. 2001), such a witness is competent to offer an opinionthat certain events caused emotional injury or distress, see, e.g.,id.; Chladek v. Milligan, No. 97-0355, 1998 WL 334699, at*3 (E.D. Pa. June 23, 1998); see also, e.g., United States v.Vega-Figueroa, 234 F.3d 744, 755 (1st Cir. 2000) ("[T]hePage 5modern trend favors the admission of [lay] opinion testimonyprovided it is well founded on personal knowledge and susceptible tocross-examination."); Schultz v. YMCA of United States,139 F.3d 286, 289-90 (1st Cir. 1998) ("Schultz's own deposition testimony[concerning his emotional distress] was obviously competent under theformal requirements of Fed.R.Civ.P. 56(e). . . . [W]ithout thereport from the therapist, Schultz's own testimony would likely beevidence enough of emotional damage to avoid summary judgment, even if ajury might find it self — serving or not worth a significantaward"). The testimony in question accordingly also passes musterpursuant to Rule 701.

3. Paragraph 11: Granted. I agree with the State Defendants,see Defendants' Reply SMF/Motion To Strike ¶ 11, that Coxhas failed to lay an adequate foundation to establish the source of hispersonal knowledge as to the impact of the filing of criminal charges onhis reputation in the community, see generally Cox Aff.

B. Cognizable Facts

With the disposition of the motion to strike taken into account, theparties' statements of material facts, credited to the extent eitheradmitted or supported by record citations in accordance with LocalRule 56 and viewed in the light most favorable to Cox as the non-movant,reveal the following relevant to this recommended decision:3

During the time relevant to the Complaint, Cox was a resident of 178Perkins Valley Road, Woodstock, Oxford County, Maine. Statement ofMaterial Fact in Support of Motion for SummaryPage 6Judgment by the Defendants Maine State Police, Trooper John Haineyand Oxford County District Attorney's Office ("Defendants' SMF") (DocketNo. 18) ¶ 1; Plaintiff's Opposing Statement of Material Facts("Plaintiff's Opposing SMF") (Docket No. 24) ¶ 1. The MSP is alaw-enforcement agency of the State of Maine with statutorily definedduties. Id. ¶ 2. State troopers have a statutory duty toinvestigate and prosecute violators of the laws of Maine and the power"to arrest without warrant and detain persons found violating orattempting to violate any other penal law of the State until a legalwarrant can be obtained." Id. ¶ 3 (quoting 25 M.R.S.A. §1502). Hainey is a trooper employed by the MSP. Id. ¶ 4. Agraduate of the State Police Academy, he has been with the MSP for fiveyears, is assigned to Troop B and patrols Oxford County. Id. TheDA's Office is an agency of the State of Maine with statutorily definedduties. Id. ¶ 5. Its members prosecute all criminal cases inOxford, Franklin and Androscoggin counties. Id.

On April 5, 2001 Officer Warren Ellsworth of the Town of Norway PoliceDepartment served a subpoena on an individual whose snowmobile had beenstolen by Joseph Cox, who is Cox's son Id. ¶¶ 6, 14.4 Theindividual told Ellsworth that a co-worker of his had information thatJoseph Cox was selling drugs. Id. ¶ 6. Ellsworth spoke withthe co-worker ("Confidential Informant"), who told him that Joseph Coxhad been selling drugs to students at Oxford Hills High School ("OxfordHigh"). Id. ¶ 7. The Confidential Informant told Ellsworththat he would be willing to make a controlled buy from Joseph Cox tocorroborate that Joseph Cox was selling drugs. Id. ¶ 8.Page 7

On April 6, 2001 the Confidential Informant told Ellsworth that anOxford High student who had purchased drugs from Joseph Cox in the pastwas planning to do so again. Id. ¶ 9. On April 12, 2001Sergeant Rob Ferdico. of the Norway Police Department contacted Hainey,filled him in on the information Ellsworth had obtained from theConfidential Informant and asked him to assist with a drug purchase atthe Cox residence. Id. ¶ 10. On April 25, 2001 Hainey andFerdico. met with the Confidential Informant at the Town of Norway PoliceDepartment. Id. ¶ 11. The Confidential Informant told themthat he knew a student at Oxford High who claimed to have purchaseddrugs, including Ecstasy, from Joseph Cox. Id. ¶ 12. TheConfidential Informant agreed to set up a drug purchase from Joseph Cox.Id.

On April 28, 2001 Hainey and Ferdico. met with the ConfidentialInformant at the Town of Norway Police Department and made plans for himto purchase drugs from Joseph Cox at 178 Perkins Valley Road inWoodstock, Maine. Id. ¶ 13. At that time, Joseph Cox livedwith his father at that address. Id. ¶ 14. The ConfidentialInformant was searched for illegal drugs by Ferdico, supplied with anelectronic listening device — a transmitter — and givenpre-recorded currency to use as "buy money." Id. ¶ 15.The transmitter allowed Hainey and Ferdico. to record and hearconversation and sounds from and near the Confidential Informant.Id. ¶ 16. At approximately 7:45 p.m., the ConfidentialInformant traveled to the Cox residence in one vehicle, with Ferdicoand Hainey in another. Id. ¶ 17. Hainey and Ferdico. sawthe Confidential Informant enter the Cox residence, after which theylistened to and recorded conversations and sounds picked up by thetransmitter. Id. ¶ 18. Hainey heard conversations amongindividuals inside the residence that were consistent withdrug-trafficking activity, including the sale of Oxycodone by JosephCox to the Confidential Informant. Id. ¶ 19. Hainey heardJoseph Cox tell the Confidential Informant that John Cox had come backfrom North Carolina on a "drug run" and that he would have John Cox gethim "an eighth ofPage 8marijuana." Defendants' SMF ¶ 20; Deposition of Trooper JohnHainey ("Hainey Dep.") (Docket No. 27), at 16.5

During the time the Confidential Informant was in the Cox residence,Hainey did not hear John Cox participate in any conversations and did notknow if he was then home. Defendants' SMF ¶ 21; Plaintiff's OpposingSMF ¶ 21. John Cox was not then at home. Plaintiff's Additional SMF¶ 12; Defendants' Reply SMF/Motion To Strike ¶ 12. TheConfidential Informant was in the Cox residence for approximately ninetyminutes, after which Hainey saw him leave and get in his car. Defendants'SMF ¶ 22; Plaintiff's Opposing SMF ¶ 22. Hainey then met him at aprearranged location. Id. The Confidential Informant gave Haineya plastic bag containing four dosage units of Oxycodone Hydrochloride("Roxicodone") he had purchased from Joseph Cox for $15. Id.¶ 23. Hainey debriefed the Confidential Informant, who confirmed thatthe Oxycodone was purchased from Joseph Cox. Id. ¶ 24.Hainey also searched the Confidential Informant's car for illegal drugsand found none. Id. Roxicodone is a non-time-released version ofOxycontin. Id. ¶ 25.

On May 7, 2001 Hainey prepared an affidavit and request for a searchwarrant using information obtained from the controlled buy at the Coxresidence. Id. ¶ 26. As of that date, Hainey acknowledgedthat he did not believe he had probable cause to obtain an arrest warrantfor John Cox. Id. ¶ 27. Maine District Court Judge JohnBeliveau signed the search warrant at 2:40 p.m. on May 7, 2001.Id. ¶ 28. The search warrant authorized a daylight search ofthe Cox residence at 178 Perkins Valley Road for scheduled drugs,including Oxycodone, drug paraphernalia, papers and other effects relatedto drug furnishing or trafficking. Id. ¶ 29.Page 9

Hainey participated in the execution of the search warrant at the Coxresidence at 8:30 a.m. on May 9, 2001. Id. ¶ 30. TwoOxycodone tablets and drug paraphernalia were found in Joseph Cox'sbedroom. Id. A triple-beam scale with marijuana residue, anempty Roxicodone bottle and a bottle of sixty-five Roxicodone tabletswith a "tampered label" were found in the kitchen. Defendants' SMF ¶31; Maine State Police Continuation Report ("Hainey Report"), attached toMaine State Police Investigation Report, Exh. 1 to Hainey Dep., at4.6 In Hainey's experience, triple-beam scales are used for marijuanapackaging. Defendants' SMF ¶ 32; Hainey Dep. at 30. John Cox toldHainey that the scale was for his "personal use" and denied anyinvolvement in selling drugs. Defendants' SMF ¶ 32; Hainey Report at6.7 However, the next day, Matthew Ryerson of Oxford told Hainey thathe had purchased marijuana from John Cox on at least two occasions.Defendants' SMF ¶ 32; Hainey Report at 6-7.8

John Cox stayed in his home while Hainey and other law enforcementpersonnel conducted the search. Defendants' SMF ¶ 33; Plaintiff'sOpposing SMF ¶ 33. He informed Hainey that he had been prescribed theRoxicodone pills found in his house. Plaintiff's Additional SMF ¶ 4;Defendants' Reply SMF/Motion To Strike ¶ 4. He explained to lawenforcement that he had not provided the Roxicodone pills prescribed tohim to his son or to anyone else. Id. ¶ 5. He further toldHainey that he kept his pills with him "on his person" at all timesexcept when he slept. Defendants' SMF ¶ 33; Plaintiff's Opposing SMF¶ 33. Id. He told Hainey that he accounts for the number ofpills he uses and that if anyone had takenPage 10some of them, he would have known about it. Defendants' SMF ¶34; Hainey Report at 5. He also informed Hainey that he had questionedthe count of his pills with his pharmacist several weeks prior to May 9,2001. Plaintiff's Additional SMF ¶ 7; Cox Aff. ¶ 17.9 OnApril 21, 2001 John Cox had called his pharmacist because he felt that hewas missing a few of his Roxicodone pills. Plaintiff's Additional SMF¶ 2; Defendants' Reply SMF/Motion To Strike ¶ 2. The pharmacistlater noted that the plaintiff had questioned the quantity of pillsdispensed. Id.

During the time the search warrant was executed, no evidence ofdrug-trafficking or drug — furnishing activities was found thatcould be attributed to John Cox (other than a scale that would not beused in trafficking Oxycontin or Roxicodone). Plaintiff's Additional SMF¶ 3; Cox Aff. ¶ 13; Hainey Dep. at 29-32.10 Joseph Coxdenied that John Cox had ever given him Oxycodone tablets. Defendants'SMF ¶ 34; Hainey Dep. at 22.

Hainey conferred with Assistant District Attorney Richard Beauchesne atthe DA's Office. Defendants' SMF ¶ 35; Plaintiff's Opposing SMF ¶35. Hainey went over the items and information obtained during the searchof the Cox residence and discussed the existence of probable cause toarrest John Cox. Id. He believed that probable cause existed toarrest John Cox on May 9, 2001 based upon information and items obtainedduring the search, John Cox's prior marijuana and possession of drugPage 11paraphernalia arrests, John Cox's statement that if someone hadtaken any of his pills he would have known about it, the fact that JosephCox had possession of some of the pills, the fact that pills of the samesize and color were purchased by the Confidential Informant on April 28,2001, and Joseph Cox's claim that his father left the pills around thehouse. Defendants' SMF ¶ 36; Hainey Dep. at 18-21.11 Beauchesneagreed with Hainey that probable cause existed to arrest John Cox.Defendants' SMF ¶ 37; Plaintiff's Opposing SMF ¶ 37.

John Cox was thereafter arrested on drug charges. Id. Haineytold the Plaintiff that he was being arrested because he was not actingresponsibly with his pills. Plaintiff's Additional SMF ¶ 6; Cox Aff.¶ 16.12

John Cox was transported to the Oxford County Jail at approximately11:30 a.m. on May 9, 2001. Id. ¶ 38. He was released on bailat 2 p.m. that day. Id. His bail bond indicates that his"initial arrest" was for "aggravated furnishing" of a scheduled drug.Id. In a motion to amend bail conditions, he stated that he "wasarrested on or about May 9, 2001 for furnishing a Schedule W substance,namely, Roxicodone." Id. ¶ 39. The conditions of releaseaccompanying his bail bond indicated that he was required to appear foran arraignment in the Maine District Court in South Paris on June 25,2001 at 8:30 a.m. Id. ¶ 40. His initial bail conditions werethat he have no contact with anyone under the age of nineteen, whichprohibited him from having contact with his children. Plaintiff'sAdditional SMF ¶ 10;Page 12Defendants' Reply SMF/Motion To Strike ¶ 10. Bail was lateramended to provide for restricted contact with individuals under eighteenyears old. Id. These bail conditions caused the Plaintiffemotional distress and pain and suffering. Id.

Hainey's involvement in the allegations of the Complaint in this caseended on May 10, 2001, when his case was "closed by arrest." Id.¶ 41. John Cox was later charged with trafficking in a scheduleddrug, in violation of 17-A M.R.S.A. § 1105-A, by Assistant AttorneyGeneral David Fisher. Id. ¶ 42. Hainey did not make anyrecommendations as to which charges should be brought against John Cox.Id. ¶ 43. On June 19, 2001 Fisher issued a memorandum toLaura Nokes of the Maine District Court in South Paris stating that nocomplaint would be issued against John Cox for the offense of aggravatedtrafficking in a scheduled drug. Id. ¶ 44. The memorandumindicated that John Cox's scheduled arraignment date was June 25, 2001.Id. ¶ 45. John Cox mailed a notice of claim dated December13, 2001 pursuant to the Maine Tort Claims Act ("MTCA") to AndrewKetterer, Department of the Attorney General, 6 State House Station,Augusta, Maine 04333. Id. ¶ 46.

John Cox did not furnish Roxicodone to his son. Plaintiff's AdditionalSMF ¶ 1; Cox. Aff. ¶ II.13 For many years the Plaintiff'sfamily has felt harassed by local law enforcement. Plaintiff's AdditionalSMF ¶ 9; Defendant's Reply SMF/Motion To Strike 19.

III. Analysis

A. State-Law ClaimsPage 13

The Plaintiff asserts a number of state-law causes of action againstthe State Defendants, bringing claims against the MSP for wrongful arrest(Count I), false imprisonment (Count II), intentional infliction ofemotional distress ("IIED") (Count IV), negligent infliction of emotionaldistress ("NIED") (Count VI) and defamation (Count VIII); against theDA's Office for malicious prosecution (Count III), DED (Count V) and NIED(Count VIII); and against Hainey for defamation (Count VIII). Complaint¶¶ 85-125.

The State Defendants seek summary judgment as to all state-law countson the ground that the requisite MTCA notice of claim was untimely filed.See Defendants' S/J Motion at 3-4. The MTCA requires filing of awritten notice of claim with the appropriate governmental entity"[w]ithin 180 days after any claim or cause of action permitted by thischapter accrues, or at a later time within the limits of section 8110,when a claimant shows good cause why notice could not have reasonablybeen filed within the 180-day limit[.]" 14 M.R.S.A. § 8107(1) &(3). Absent substantial compliance with this requirement, no MTCA actionagainst a governmental entity or employee may be commenced in SuperiorCourt. Id. § 8107(4).

The State Defendants posit that (i) the Plaintiff's causes of actionaccrued on May 9, 2001 (when he was arrested and freed on bail), (ii) theDecember 13, 2001 filing thus came too late, and (iii) the Plaintiff hasshown no good cause for his tardiness. See Defendants' S/JMotion at 3-4.14 The Plaintiff rejoins that none of his causes ofaction accrued until June 19, 2001, when he was "no-complainted" by theDA's Office. See Plaintiff's S/J Opposition at 3-6.15

As the Law Court has noted:Page 14

The general test for determining when a cause of action accrues is when a plaintiff received a judicially recognizable injury. A tort claim accrues when the plaintiff sustains harm to a protected interest. In other words, it accrues at the point at which a wrongful act produces an injury for which a potential plaintiff is entitled to seek judicial vindication.McLaughlin v. Superintending Sch. Comm. of Lincolnville,832 A.2d 782, 788 (Me. 2003) (citations and internal quotation marksomitted).

While both sides acknowledge this general precept, each neglects toanalyze how it is applied in the context of the specific torts in issue(apart from that of malicious prosecution). See Defendants' S/JMotion at 3-4; Plaintiff's S/J Opposition at 3-6; Reply to Plaintiff'sOpposition to Motion for Summary Judgment by the Maine State Police,Trooper John R. Hainey and the Oxford County District Attorney's Office("Defendants' S/J Reply") (Docket No. 30) at 1-5. The parties arereminded that it is their responsibility in the first instance to fleshsuch concepts out. However, in the face of this failing, I haveendeavored to fill in the gaps.

Turning first to Counts I and II, my research reveals that the LawCourt has held that causes of action for both false arrest and wrongfulimprisonment accrue when a plaintiff is released from jail. SeeJedzierowski v. Jordan, 157 Me. 352, 352-53 (1961) (action for falsearrest and imprisonment accrued on day plaintiff was released on his ownrecognizance, not when plaintiff later was found not guilty of chargelodged against him); see also, e.g., Belflower v. Blackshere,281 P.2d 423, 425 (Okla. 1955) ("In an illegal arrest and falseimprisonment case, we are convinced that the . . . statute oflimitations begins to run . . . at the time plaintiff was releasedfrom his alleged illegal restraint and not when the proceedings by whichhis arrest occurred terminated, and that this particular action couldhave been prosecuted to a successful result at the time plaintiff wasreleased[.]") (cited with favor in Jedzierowski). Thus, in thiscase, Counts I and IIPage 15accrued on May 9, 2001.16 The Plaintiff neither timely filedthe requisite MTCA notice with respect to those claims nor demonstratesgood cause for its tardy riling, entitling the MSP to summary judgment asto Counts I and II.

With respect to Count III, the Plaintiff points out that a cause ofaction for malicious prosecution does not accrue until there has been "afavorable termination of the proceedings." See Plaintiff's S/JOpposition at 4 (quoting Nadeau v. State, 395 A.2d 107, 116 (Me.1978)). He relies on Bickford v. Lantay, 394 A.2d 281 (Me.1978), for the proposition that "a prosecutor's no complaint of acriminal charge" constitutes a favorable termination of proceedings forpurposes of a malicious-prosecution claim. See id. at 4-5.Accordingly, he argues, his cause of action for malicious prosecutionaccrued on June 19, 2001. See id. at 5. I agree.

The State Defendants respond that the instant case is distinguishablefrom Bickford inasmuch as in that case, the prosecutor entered anolle prosequi after criminal proceedings against the plaintiffhad commenced, whereas here, the prosecutor sent a no-complaint letter tothe clerk of the court before a criminal complaint issued or John Cox wasarraigned on criminal charges. See Defendants' S/J Reply at1-3. As a result, they reason, the no-complaint letter did notoperate as "an outcome favorable to the plaintiff' as did the nolleprosequi in Bickford, and any cause of action the Plaintiffhad for malicious prosecution accrued when he was arrested on May 9,2001. See id. at 2-3. This appears, in essence, to be anPage 16argument that the June 19, 2001 no-complaint letter cannot havebeen a favorable termination of "proceedings" against the Plaintiffinasmuch as no "proceedings" as yet had begun. See id.

I note, as a threshold matter, that Bickford does not purportto determine when "proceedings" commence for purposes of amalicious-prosecution claim. See generally Bickford,394 A.2d 281. Beyond this, there is no cognizable evidence that a criminalcomplaint was — or was not — filed against the Plaintiff Infact, the State Defendants acknowledge that at some point prior to theissuance of the no-complaint letter the DA's Office charged him with acrime. See Defendants' SMF ¶ 42. Inasmuch as appears, thisis enough to constitute the commencement of "proceedings" for purposes ofa malicious-prosecution action. See, e.g., Hilt v. Hurd, No.2:01CV00017, 2001 WL 1242091, at *2 (W.D. Va. Oct. 18, 2001) ("TheRestatement [(Second) of Torts § 654] defines `criminal proceedings'as proceedings where the government seeks to prosecute and impose apenalty. Criminal proceedings are instituted when criminal process isissued, an indictment is issued by the grand jury, an information isfiled or an arrest is made.") (citations omitted); compare, e.g.,Schroeder v. DeBertolo, 912 F. Supp. 23, 26 (D.P.R. 1996) ("It isnot enough that a mere complaint has been made to the proper authoritiesfor the purpose of setting prosecution in motion, where no officialaction ever has been taken.") (citation and internal quotation marksomitted); Stromberg v. Costello, 456 F. Supp. 848, 850 (D. Mass.1978) ("A Massachusetts court has stated that criminal proceedings may beconsidered commenced when complaints are signed. The allegations at barindicate merely that defendant applied unsuccessfully for the issuance ofsuch complaints.") (citation omitted).

The State Defendants thus fall short of demonstrating, for purposes ofsummary judgment, that any cause of action the Plaintiff may have formalicious prosecution accrued on May 9, 2001 rather than JunePage 1719, 2001, when the no-complaint letter issued. Accordingly, theyfail to demonstrate the DA's Office's entitlement to summary judgment asto Count III.17

Turning to the remaining counts, the parties do not cite, nor do Ifind, published Maine caselaw delineating when causes of action for IIED(Counts IV-V), NIED (Counts VI-VII) and defamation (Counts VIII)accrue. Nor do the parties cite any other authority shedding light onthese points. However, my research indicates that, as a general matter,(i) a cause of action for defamation accrues on the date the allegeddefamatory statement was published, see, e.g., Shively v.Bozanich, 80 P.3d 676, 686 (Cal. 2003); Abate v. Maine AntiqueDigest, No. 03-3759, 2004 WL 293903, at *1 (Mass. Super. Ct. Jan.26, 2004); and (ii) causes of action for both NIED and IIED accrue when aplaintiff suffers severe emotional distress — an essential elementof both, see, e.g., Russell v. Adams, 482 S.E.2d 30, 33 (N.C. CtApp. 1997); Curtis v. Porter, 784 A.2d 18, 22-23, 26 (Me. 2001)(for purposes of both NIED and IED, plaintiff must show, interalia, that he or she suffered severe emotional distress); seealso, e.g., Quinn v. Walsh, 732 N.E.2d 330, 332-33 (Mass. App. Ct.2000) (cause of action for IIED accrues "on the date a plaintiff firstexperiences anxiety or distress that is the intended result of thedefendant's conduct").Page 18

Against this backdrop, the Plaintiff's defamation claim against Haineyand the MSP (Count VIII) and his NIED and IIED claims against the MSP(Counts IV and VI) readily can be discerned to be time-barred. ThePlaintiff adduces no cognizable evidence that Hainey or the MSP engagedin any objectionable conduct after May 10, 2001. In fact, it isundisputed that Hainey's involvement in the allegations of the Complaintended on May 10, 2001, when the case was "closed by arrest." SeeDefendants' SMF ¶ 44; Plaintiff's Opposing SMF ¶ 44. Therefore,any defamation claim against Hainey and the MSP accrued, at the latest,by May 10, 2001. The Plaintiff neither timely filed the requisite MTCAnotice as regards this claim nor offers any good cause for its tardyfiling, entitling Hainey and the MSP to summary judgment as to CountVIII.

With respect to the NIED and IIED claims, the Plaintiff's onlycognizable evidence of emotional harm is his assertion that theimposition of bail conditions caused him pain and suffering and emotionaldistress. See Plaintiff's Additional SMF ¶ 10. Bailconditions were imposed on May 9, 2001. While the Plaintiff asserts thathis emotional distress continued until June 19, 2001, seePlaintiff's S/J Opposition at 5-6, he adduces no evidence of post-May 9conduct on the part of the MSP apart from the simple ministerial act ofclosing out his case on May 10, 2001. Lingering after-effects do not,alone, suffice to extend the statute of limitations, see, e.g.,McLaughlin, 832 A.2d at 789 n.6 ("The common law continuing tortdoctrine may be applied when no single incident in a chain of tortuous[sic] activity can fairly or realistically be identified as the cause ofsignificant harm. In such cases, the breach of duty is regarded as asingle continuing wrong that terminates when the exposure to the harmterminates.") (citations and internal quotation marks omitted);Feltmeier v. Feltmeier, 798 N.E.2d 75, 85 (III. 2003) ("Acontinuing violation or tort is occasioned by continuing unlawful actsand conduct, not by continual ill effects from an initial violation.").Thus, any causes of action that the Plaintiff had against the MSP forIIED or NIED accrued asPage 19of May 9, 2001. He neither timely filed the requisite MTCA noticewith respect to those claims nor demonstrates good cause for its tardyfiling, entitling the MSP to summary judgment as to Counts IV and VI.

I turn finally to the Plaintiff's IIED and NIED claims against the DA'sOffice (Counts V and VII), with respect to which I reach a differentresult. In this context the Plaintiff's continuing-harm argument,see Plaintiff's S/J Opposition at 5-6, carries weight. ThePlaintiff complains of emotional harm arising from the imposition of bailconditions. Those bail conditions were an integral part of the DA'sprosecution of the case against him and were not lifted until the DA'sOffice elected to cease prosecution on June 19, 2001. Thus, for purposesof Counts V and VII, the Plaintiff adequately sketches a scenario ofongoing harmful conduct terminating on that date.18 See, e.g.,Feltmeier, 798 N.E.2d at 89 ("[I]n the case of a continuing tort,such as the one at bar, a plaintiff's cause of action accrues, and thestatute of limitations begins to run, at the time the last injurious actoccurs or the conduct is abated."); McLaughlin, 832 A.2d at 789n.6 (noting that in the case of a continuing tort, the "breach of duty isregarded as a single continuing wrong that terminates when the exposureto the harm terminates."). Inasmuch as exposure to the harm terminated onJune 19, 2001, the Plaintiff's MTCA notice was timely filed with respectto his IIED and MED claims against the DA's Office. The DA's Officeaccordingly falls short of demonstrating entitlement to summary judgmentas to Counts V and VII of the Complaint.19Page 20

B. Federal Claims

The State Defendants finally seek summary judgment as to the remainingsubstantive count against them (Count IX), in which the Plaintiff seeksrelief pursuant to 42 U.S.C. § 1983 for alleged violations of hisfederal constitutional rights. See Defendants' S/J Motion at4-11; Complaint ¶¶ 126-40. As a threshold matter, the State Defendantsargue that the Eleventh Amendment bars the Plaintiff's section 1983action against the MSP and the DA's Office. See Defendants' S/JMotion at 4-5. The Plaintiff agrees that his federal claims against thosetwo defendants should be dismissed, see Plaintiff's S/JOpposition at 6 n.2, entitling them to summary judgment as to Count DCand its companion count, Count X, which requests attorney fees pursuantto 42 U.S.C. § 1988, see Complaint ¶ 141.

This leaves Hainey, who is alleged in Count DC to have violated thePlaintiff's (i) procedural due-process rights by violating his right toliberty, (ii) substantive due-process rights by engaging in arbitraryand/or conscience-shocking conduct, and (iii) Fourth, Fifth and EighthAmendment rights. See Complaint ¶¶ 137-39.

The State Defendants correctly construe the Eighth and Fifth Amendmentclaims as inapposite with respect to Hainey, observing that (i) a claimof cruel and unusual punishment pursuant to the Eighth Amendment properlyis invoked by a convicted prisoner and (ii) any due-process claim arisingfrom the Plaintiff's warrantless arrest would implicate Fourth Amendmentrather than Fifth Amendment jurisprudence. See Defendants' S/JMotion at 4 n.2; Whitley v. Albers, 475 U.S. 312, 318 (1986)("The Cruel and Unusual Punishments Clause was designed to protect thoseconvicted of crimes, and consequently the Clause applies only after theState has complied with the constitutional guarantees traditionallyassociated with criminal prosecutions.") (citations and internalquotation marks omitted); Westover v. Reno, 202 F.3d 475, 479n.4 (1st Cir. 2000) (claimed violations of due process arising fromPage 21warrantless arrest arise under Fourth Amendment, not FifthAmendment). With these clarifications, the State Defendants perceive theComplaint as alleging the commission of two constitutional torts byHainey (potentially bottomed on Fourteenth Amendment due-process orFourth Amendment search-and-seizure jurisprudence): malicious prosecutionand false arrest. See Defendants' S/J Motion at 5-11. ThePlaintiff implicitly agrees. See Plaintiff's S/J Opposition at6-13 (opposing summary judgment with respect to false-arrest,malicious-prosecution claims against Hainey).

The State Defendants suggest that in the circumstances of this case,the malicious-prosecution claim against Hainey is foreclosed by astraightforward application of First Circuit precedent. SeeDefendants' S/J Motion at 5-7. I agree. As the Plaintiff concedes, he hasno sustainable malicious-prosecution claim based on substantive orprocedural due process. See Plaintiff's S/J Opposition at 12-13n.4; see also, e.g., Nieves v. McSweeney, 241 F.3d 46, 53-54(1st Cir. 2001) ("It is perfectly clear that the Due Process Clausecannot serve to ground the appellants' federal malicious prosecutionclaim. No procedural due process claim can flourish in this soil becauseMassachusetts provides an adequate remedy for malicious prosecution.Similarly, a plurality of the Supreme Court has concluded thatsubstantive due process may not furnish the constitutional peg on whichto hang a federal malicious prosecution tort. We have followed theCourt's lead in this respect, and we hew to that line today.") (citationsand internal quotation marks omitted); Roche v. John Hancock Mut.Life Ins. Co., 81 F.3d 249, 256 (1st Cir. 1996)(same);Nadeau, 395 A.2d at 116 ("Malicious prosecution has longbeen recognized as an actionable tort in this jurisdiction.").

Nor, in view of the fact that Hainey's arrest of the Plaintiff waswarrantless, does the Plaintiff make out a sustainable Fourth Amendmentclaim for malicious prosecution. See, e.g., Nieves, 241 F.3d at54 ("The tort of malicious prosecution permits damages for a deprivationof liberty — a seizure — pursuant toPage 22legal process. Generally, the offending legal processcomes either in the form of an arrest warrant (in which case the arrestwould constitute the seizure) or a subsequent charging document (in whichcase the sum of post-arraignment deprivations would comprise theseizure). . . . The appellants were arrested without a warrant and, thus,their arrests — which antedated any legal process-cannot be part ofthe Fourth Amendment seizure upon which they base their section 1983claims.") (citations omitted) (emphasis in original).

Hainey accordingly is entitled to summary judgment with respect to thePlaintiff's federal malicious-prosecution claim.

Turning to the Plaintiff's federal false-arrest claim against Hainey,such a claim is made out by a showing of (i) intent to confine theplaintiff, (ii) awareness of the confinement by the plaintiff, (iii)absence of consent by the plaintiff and (iv) absence of privilege for theconfinement. See, e.g., Calero-Colon v. Betancourt-Lebron,68 F.3d 1, 3 n.6 (1st Cir. 1995). That an arrest was privileged may be shownby establishing that it was based on probable cause. See, e.g., Shainv. Ellison, 273 F.3d 56, 67 (2d Cir. 2001). The State Defendantsinvoke qualified immunity, arguing that Hainey's arrest of the Plaintiffwas privileged inasmuch as Hainey had either actual or arguable probablecause to arrest him and, in any event, did not violate his clearlyestablished rights. See Defendants' S/J Motion at 7-11.

As the First Circuit has clarified:

Determining whether qualified immunity is available to a particular defendant at a particular time requires a trifurcated inquiry. We ask, first, whether the plaintiff has alleged the violation of a constitutional right. If so, we then ask whether the contours of the right were sufficiently established at the time of the alleged violation. Finally, we ask whether an objectively reasonable official would have believed that the action taken or omitted violated that right.Page 23

Acevedo-Garcia v. Monroig, 351 F.3d 547, 563-64 (1st Cir.2003) (citations and internal quotation marks omitted).

In accordance with this tripartite analytical structure, I firstconsider whether the cognizable facts, viewed in the light most favorableto the Plaintiff, establish that Hainey arrested him without probablecause. See McDermott v. Town of Windham, 204 F. Supp.2d 54, 61(D. Me. 2002) ("The threshold inquiry is: relying on the facts alleged inthe summary judgment record, taken in the light most favorable to thePlaintiff, whether McDermott's arrest was based on probable cause."). TheFirst Circuit has described probable cause as "a fluid concept," noting: Its existence must be evaluated under the entirety of the circumstances. Probable cause to arrest does not demand either the same quantum of proof or the same degree of certitude as a conviction. Probable cause does, however, require reasonably trustworthy information such as would lead a prudent person to believe that the suspect likely had committed or was committing a criminal offense.United States v. Lee, 317 F.3d 26, 32 (1st Cir. 2003)(citations omitted).

Hainey arrested the Plaintiff for aggravated furnishing of a Schedule Wdrug (Roxicodone). Pursuant to Maine law, a person is guilty of unlawfultrafficking in a Schedule W drug "if the person intentionally orknowingly trafficks in what the person knows or believes to be ascheduled drug, which is in fact a scheduled drug[.]" 17-A M.R.S.A. §1103(1-A). A person is guilty of aggravated trafficking in a Schedule Wdrug if he or she (a) violates section 1103 and, (b) inter alia,"trafficks in a scheduled drug with a child who is in fact less than 18years of age" or, "[a]t the time of the offense, . . . enlists orsolicits the aid of or conspires with a child who is in fact less than 18years of age to traffick in a scheduled drug[.]" Id. §1105-A(1)(A) & (F).Page 24

I agree with the Plaintiff that the cognizable evidence, viewed in thelight most favorable to him, establishes that Hainey lacked probablecause to believe that he had committed the crime of aggravated furnishingof a Schedule W drug. See Plaintiff's S/J Opposition at 6-12.This was so inasmuch as, at the time of arrest, (i) neither theConfidential Informant nor the controlled buy had implicated John Cox inRoxicodone trafficking, (ii) the search of the Cox residence turned up noitem linking John Cox to Roxicodone trafficking (except, arguably, theempty Roxicodone bottle with the "tampered" label found in the Coxkitchen), (iii) Hainey knew that John Cox had a prescription forRoxicodone, and (iv) no statement had been made directly linking John Coxto Roxicodone trafficking.

Having answered the first of the three qualified-immunity questions inthe affirmative, I proceed to the second: whether the right Hainey isalleged to have violated was clearly established. The First Circuit hasleft no doubt that the answer is yes. See, e.g., Abreu-Guzman v.Ford, 241 F.3d 69, 73 (1st Cir. 2001) ("It has been clearlyestablished for a very long time that the Fourth Amendment requires thatarrests be based on probable cause.").

This brings me to the final question: "whether an objectivelyreasonable officer, performing discretionary functions, would haveunderstood his or her conduct violated that clearly establishedconstitutional right." Id. This question "itself is subject tocertain ground rules," among them that an officer's subjective intent isirrelevant, id., and that, in the context of a warrantlessarrest, "[p]olice are afforded immunity so long as the presence ofprobable cause is at least arguable," Fletcher v. Town ofClinton, 196 F.3d 41, 53 (1st Cir. 1999) (citation and internalquotation marks omitted).

Viewing the cognizable evidence in the light most favorable to thePlaintiff, I cannot conclude that the presence of probable cause wasarguable. In my view, a reasonable officer standing in Hainey's shoescould have (i) at least arguably found probable cause to believe John Coxguilty of trafficking in marijuanaPage 25and (ii) harbored sufficient suspicion to warrant furtherinvestigation into the possibility that he had been dealing in Roxicodoneas well. However, the points the State Defendants emphasize do not swayme that Hainey possessed arguable probable cause that John Cox wastrafficking in Roxicodone with (or to) youths, specifically:

1. That a controlled buy had occurred at the Cox residence on April 28,2001, and a subsequent search of the residence produced evidence relatedto drug offenses. See Defendants' S/J Motion at 9. Critically,neither the controlled buy nor the search linked John Cox to traffickingin Roxicodone pills.

2. That John Cox told Hainey he kept his Oxycodone with him at alltimes except when he slept, that he accounted for all of his tablets andthat he would have known if anyone had taken them. See id.Awareness that one's pills are missing is a far cry from intentional andknowing involvement in their illegal sale — particularly if thepills are out of one's possession and control during sleep. In any event,the evidence viewed in the light most favorable to the Plaintiffestablishes that (i) John Cox also told Hainey that he had questioned thecount of his pills with his pharmacist several weeks prior to May 9,2001, and (ii) the pharmacist was in a position to verify this (havinglater noted that the Plaintiff had questioned the quantity of pillsdispensed).

3. That John Cox had prior arrests for marijuana and drug-paraphernaliaoffenses. See id. Even assuming arguendo that thisvague information reveals a propensity to engage in drug dealing, itreveals nothing about sales of Roxicodone pills or involvement withyouths in drug sales.

4. That the pills obtained during the search of the Coxresidence werethe same size and color purchased by the Confidential Informant. Seeid. While this evidence certainly would bolster a finding thatPage 26Joseph Cox was dealing in his father's prescription pills, it begsthe critical questions of how the boy came by the pills and what, ifanything, the father knew.

5. That Joseph Cox's statements about how and where his father kept theOxycodone tablets conflicted with those of his father. See id.While this fact would permit a reasonable inference that either John Cox,his son or possibly both were being untruthful, the State Defendantsoffer no cogent argument as to how, in the context of the totality of theevidence then available, this fact tended to establish probable cause tobelieve that John Cox committed the crime for which he was arrested.

6. That Oxford District Attorney Beauchesne concluded that probablecause existed to arrest John Cox. See id. While this helpsexplain why Hainey concluded that probable cause existed, it is notitself a fact tending to establish the existence of probable cause.

At this stage of the proceedings, Hainey falls short of provingentitlement to qualified immunity with respect to the Plaintiff's federalconstitutional claim of false arrest. He therefore is not entitled tosummary judgment as to Counts DC and X.

The State Defendants finally move for summary judgment with respect tothe Plaintiff's claim against Hainey for punitive damages. SeeDefendants' S/J Motion at 11; Complaint at 20. "[A] jury may be permittedto assess punitive damages in an action under § 1983 when thedefendant's conduct is shown to be motivated by evil motive or intent, orwhen it involves reckless or callous indifference to the federallyprotected rights of others." Smith v. Wade, 461 U.S. 30, 56(1983). In this case, even viewing the record in the light most favorableto the Plaintiff, a reasonable trier of fact could not discern evilmotive or intent or reckless indifference on Hainey's part to thePlaintiff's Fourth Amendment rights. The Plaintiff adduces evidence thatfor many years his family has felt harassed by local law enforcement;however, he sheds no light on how he has been harassed or whether MSPtrooper Hainey had anything to do with suchPage 27harassment. Nor, despite a lack of probable cause for arrest, can atrooper who took the precaution of checking with the District Attorneyreasonably be found to have been recklessly indifferent to its existence.Hainey accordingly is entitled to summary judgment as to punitive damageswith respect to the federal false-arrest claim.

IV. Conclusion

For the foregoing reasons, I GRANT in part and DENYin part the State Defendants' motion to strike and recommend that theirmotion for summary judgment be GRANTED with respect to the MSP;GRANTED with respect to the DA's Office as to Counts DC and Xand otherwise DENIED; and GRANTED with respect toHainey as to Count VIII, and as to Counts DC and X to the extent theyrely on Fifth Amendment, Eighth Amendment or malicious —prosecution causes of action and entail a claim for punitivedamages, and otherwise DENIED. If this recommended decision isadopted, remaining for trial will be Counts III (malicious prosecution),V (IIED) and VII (NIED) as against the DA's Office, and Counts DC and X(federal constitutional and attorney-fee claims) as against Hainey withrespect to a false-arrest cause of action only, and with no triable issueas to punitive damages.


A party may file objections to those specified portions of amagistrate judge's report or proposed findings or recommended decisionsentered pursuant to 28 U.S.C. § 636(b)(1)(B) for which denovo review by the district court is sought, together with asupporting memorandum and request for oral argument before the districtjudge, if any is sought, within ten (10) days after being served with acopy thereof. A responsive memorandum and any request for oral argumentbefore the district judge shall be filed within ten (10) days after thefiling of the objection.

Failure to file a timely objection shall constitute a waiver ofthe right to de novo review by the district courtand to appeal the district court's order.

1. The Complaint also named as defendants the State of Maine, theNorway Police Department, the Town of Norway, Oxford County and theOxford County Sheriff's Department. See Complaint ¶¶ 2, 5-8.All claims against these additional defendants have been dismissed.See Notice of Dismissal Against Defendant State of Maine,attached as Exh. 2 to Removal Notice; Stipulation of Dismissal ofDefendants Norway Police Department, Town of Norway, Oxford County, andOxford County Sheriff's Department (Docket No. 21).

2. Federal Rule of Evidence 602 provides, in relevant part: "Awitness may not testify to a matter unless evidence is introducedsufficient to support a finding that the witness has personal knowledgeof the matter. Evidence to prove personal knowledge may, but need not,consist of the witness' own testimony." Federal Rule of Evidence 701provides, in its entirety: "If the witness is not testifying as anexpert, the witness' testimony in the form of opinions or inferences islimited to those opinions or inferences which are (a) rationally based onthe perception of the witness, (b) helpful to a clear understanding ofthe witness' testimony or the determination of a fact in issue, and (c)not based on scientific, technical, or other specialized knowledge withinthe scope of Rule 702."

3. Cox includes a number of facts in the body of his brief. Seegenerally Plaintiff's Opposition to Defendant's [sic] Motion forSummary Judgment ("Plaintiff's S/J Opposition") (Docket No. 23). To theextent these facts are not also properly presented in a statement ofmaterial facts as required by Local Rule 56, they are not cognizable onsummary judgment, and I have disregarded them. See, e.g., Pew v.Scopino, 161 F.R.D. 1, 1 (D. Me. 1995) ("The parties are bound bytheir [Local Rule 56] Statements of Fact and cannot challenge the court'ssummary judgment decision based on facts not properly presentedtherein.").

4. To avoid confusion, I shall henceforth refer to the plaintiff as"John Cox" or the "Plaintiff and to his son as "Joseph Cox."

5. The Plaintiff purports to dispute this assertion, seePlaintiff's Opposing SMF ¶ 20; however, his disputation is notsupported by a record citation as required by Local Rule 56(c) andis on that basis disregarded, see Loc. R. 56(e).

6. The Plaintiff purports to dispute that the label was tamperedwith, see Plaintiff's Opposing SMF ¶ 31; however, hisdisputation is not supported by a record citation as required by LocalRule 56(c) and is on that basis disregarded, see Loc. R. 56(e).The State Defendants acknowledge that they do not know what the term"tampered label" means. See Defendants' SMF ¶ 31 n.1.

7. The Plaintiff purports to dispute that he told Hainey the scalewas for his personal use, see Plaintiff's Opposing SMF¶ 32; however, his disputation is not supported by a recordcitation as required by Local Rule 56(c) and is on that basisdisregarded, see Loc. R. 56(e).

8. The Plaintiff purports to dispute that he has sold marijuana,see Plaintiff's Opposing SMF ¶ 32; however, his disputationis not supported by a record citation as required by Local Rule 56(c) andis on that basis disregarded, see Loc. R 56(e).

9. The State Defendants deny that John Cox told Hainey he hadquestioned the count of the pills in his prescription prior to the April28, 2001 controlled buy, see Defendants' Reply SMF/Motion ToStrike ¶ 7; however, I view the facts in the light most favorable tothe Plaintiff, as non-movant.

10. The State Defendants qualify this statement, seeDefendants' Reply SMF/Motion To Strike ¶ 3, asserting that (i) atriple-beam scale with marijuana residue was found in the kitchen hutch,see Maine Drug Enforcement Agency Crime Scene Evidence Log, Exh.2 to Hainey Dep., at 1 (Item No. 6), (ii) in Hainey's experience, suchscales are often used for measuring large quantities of marijuana,see Hainey Dep. at 30, (iii) John Cox admitted that the scalewas his, see Hainey Report at 6, and (iv) miscellaneous drugparaphernalia was also found in John Cox's bedroom, see HaineyDep. at 31. The State Defendants further qualify the statement by notingthat six plastic bags containing marijuana residue were found throughoutthe house in plain view, see Defendants' Reply SMF/Motion ToStrike ¶ 3; however, that assertion is inconsistent with theunderlying assertion to which it responds, and I view the cognizablerecord in the light most favorable to the Plaintiff as non-movant.

11. The Plaintiff purports to dispute that Joseph Cox claimed heleft pills around the house, see Plaintiff's Opposing SMF¶ 36; however, his disputation is not supported by a recordcitation as required by Local Rule 56(c) and is on that basisdisregarded, see Loc. R. 56(e).

12. The State Defendants qualify this statement, asserting that thePlaintiff was also told that he was arrested for aggravated furnishing ofa scheduled drug, see Defendants' Reply SMF ¶ 6; CommitmentOrder with Conditions of Release, attached as Exh. 5 to Complaint, at 2;however, I note that the document cited does not state that Hainey soinformed the Plaintiff.

13. The State Defendants qualify this statement, asserting that (i)during the execution of the search warrant at the Cox residence on May 9,2001 two Roxicodone tablets in a plastic bag were found in Joseph Cox'sbedroom, and (ii) John Cox told Hainey that he kept his pills on hisperson except when he was sleeping and that he would know if somebody hadbeen taking pills from him. See Defendants' Reply SMF/Motion ToStrike ¶ 1; Hainey Report at 4-5.

14. By my count, if the causes of action accrued on May 9, 2001 thenotice was due by November 5, 2001 and hence was untimely filed.

15. By my count, if the causes of action accrued on June 19, 2001the notice was due by December 16, 2001 and hence was timely filed.

16. To the extent the Plaintiff means to argue that false-arrest andwrongful-imprisonment claims do not accrue until a plaintiff is freed ofall restraints on his or her liberty (including restrictive bailconditions), he cites no authority for that proposition, seePlaintiff's S/J Opposition at 5-6, and I find none. Inasmuch as appears,the focus is on when a plaintiff physically is freed from custody.See, e.g., Mellett v. Fairview Health Servs., 634 N.W.2d 421,425 n.2 (Minn. 2001) (rejecting argument that plaintiff's falseimprisonment continued until her commitment petition was dismissedalthough she was physically released earlier; holding that "one of theelements of false imprisonment is actual confinement[.]").

17. In their reply memorandum, the State Defendants offer severaladditional arguments in support of summary judgment as to Count III,including (i) that the issuance of the no-complaint letter did notconstitute a "favorable termination" of any proceedings instituted, (ii)that the Plaintiff fails to generate issues of material fact as to keyelements of his malicious-prosecution claim, and (iii) that the realparty in interest is the State of Maine. See Defendants' S/JReply at 2 n.1 & 34. None of these points was raised in the StateDefendants' motion for summary judgment, which relied solely on theasserted tardiness of the MTCA notice filing. See Defendants'S/J Motion at 3-4. In a footnote in their reply memorandum, the StateDefendants note: "Since the Plaintiff argues that this claim is notbarred by his non-compliance with 14 M.R.S.A. § 8107, the Defenseaddresses the merits." Defendants' S/J Reply at 3 n.4. However, anopposition to summary judgment on statute-of-limitations grounds in which(as here) the plaintiff does not himself address the merits does notserve as an invitation for the movant belatedly to explore those meritsfor the first time in a reply brief. See, e.g., In re One BancorpSec. Litig., 134 F.R.D. 4, 10 n.5 (D. Me. 1991) (court generallywill not address an argument advanced for the first time in a replymemorandum). The belated arguments accordingly are disregarded.

18. The Plaintiff does not adduce cognizable evidence that hisemotional harm continued until June 19, 2001; however, that fact isreasonably inferable from the facts that are set forth, and on summaryjudgment all reasonable inferences must be drawn in favor of thenon-movant (here, the Plaintiff).

19. The State Defendants argue for the first time in their replymemorandum that, even assuming arguendo the timeliness of thetort claims, those claims yet fail on the bases of MTCA immunity andmisplaced reliance on a respondeat, superior theory ofliability. See Defendants' S/J Reply at 4-5. The new argumentsare not responsive to points raised by the Plaintiff, seePlaintiff's S/J Opposition at 5-6, and on that basis are disregarded,see, e.g., In re One Bancorp, 10 n.5 (courtgenerally will not address an argument raised for the first time in areply memorandum).

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