2005 | Cited 0 times | D. Maine | April 15, 2005


The defendants, York County and the York County Sheriff'sDepartment,1 move again2 for summary judgment onthe grounds that the plaintiff's claims are barred by the statuteof limitations and the doctrines of collateral estoppel, judicial estoppel and laches.Motion for Summary Judgment, etc. ("Summary Judgment Motion")(Docket No. 94) at 13-27. The plaintiff responds by contestingthe motion on its merits and with a motion to strike portions ofthe defendants' motion. Motion to Strike Portions of Defendants'Third Motion for Summary Judgment, etc. ("Motion to Strike")(Docket No. 98).3

I. Motion to Strike

The plaintiff seeks to strike all but section V of thedefendants' current motion for summary judgment. Motion to Strikeat 1. Section V consists of three paragraphs arguing that theplaintiff "is unable to generate any facts to establish herclaim." Summary Judgment Motion at 26-27. The preceding foursections deal with the statute of limitations and laches. 13-26. The plaintiff contends that "[i]t is fundamentallyunfair to permit Defendants to keep on filing multiple Motionsfor Summary Judgment on the same basic issue" and that "[t]heFirst Circuit has already ruled . . . that Dr. Schetky'stestimony satisfies the necessary standard" on this issue. Motionto Strike at 3-4, 5. She argues that the defendants are"collaterally estopped from asserting any deficiency with respectto the opinion testimony of Dr. Schetky" and, apparently, thatthis court's decision on the second motion for summary judgmentbars any further motion on the same issue. Id. at 3, 4-5.

At issue in the pending motion, as it was in the two previousmotions for summary judgment, is a Maine statute that provides anexception to the state's general six-year statute of limitations,found at 14 M.R.S.A. § 752. The exception states, in relevantpart, that section 752 is tolled when the person bringing theaction at issue was mentally ill when the cause of action accruedand for a sufficient period of time thereafter so that thecomplaint was filed within six years after the disability imposedby the mental illness ceased. 14 M.R.S.A. § 853; see generally Dasha v. Maine Med.Ctr., 665 A.2d 993, 994-96 (Me. 1995); Bowden v. Grindle,675 A.2d 968, 971 (Me. 1996). Under Maine law, a person is "mentallyill" for purposes of section 853 if she suffers from an overallinability to function in society that prevents her fromprotecting her legal rights. McAfee v. Cole, 637 A.2d 463, 466(Me. 1994).

My recommended decision on the first motion for summaryjudgment assumed for purposes of argument that the plaintiffcould establish that she was mentally ill at the time her causeof action accrued. Recommended Decision on Defendants' Motion forSummary Judgment ("First Recommended Decision") (Docket No. 37)at 11. I recommended that summary judgment be entered for thedefendants because the evidence in the summary judgment record"compel[led] a conclusion that the plaintiff was not suffering,from the date on which this cause of action accrued in 1971through May 4, 1996 (six years before this action was filed),from a mental illness that imposed an overall inability tofunction in society that prevented her from protecting her legalrights." Id. I specifically did not reach the defendants'argument based on the doctrine of laches. Id. at 11-12. Theplaintiff objected to the recommended decision and Judge Hornby,after hearing oral argument, entered summary judgment for thedefendants. Order Affirming Recommended Decision of theMagistrate Judge (Docket No. 42). However, Judge Hornby based hisdecision on his conclusion that the only evidence presented bythe plaintiff on the question whether she was mentally ill at thetime her cause of action accrued, an affidavit of Dr. Diane H.Schetky, was unclear on this point. Id. at 3-4. He specificallydid not reach the question of her ability to bring this actionafter the cause of action accrued. Id. at 4. He did not mentionthe laches defense. In ruling on the plaintiff's appeal from Judge Hornby'sdecision, the First Circuit held that the district court shouldhave considered a supplemental affidavit from Dr. Schetkyproffered by the plaintiff with her motion for reconsideration ofthat decision. Douglas v. York County, 360 F.3d 286, 289-91(1st Cir. 2004). Specifically, the First Circuit reversed andremanded because it found that the trial court's denial of theplaintiff's motion for reconsideration was an abuse of itsdiscretion in that it refused to consider the supplementalaffidavit. Id. at 290. In dicta, the First Circuit alsostated that "a correct application of the summary judgmentstandard to Dr. Schetky's first affidavit very well might haveobviated the need for a reconsideration motion." Id. Thisstatement cannot reasonably be read as the plaintiff would haveit, Motion to Strike at 3, as a "ruling" by the First Circuitthat Dr. Schetky's affidavit or affidavits "satisfie[d] thenecessary standard." It is nothing more than a suggestion, albeita strong one, that the district court consider whether thedoctor's affidavits were sufficient on the prong of the McAfeetest that requires proof that the plaintiff was mentally ill atthe time her cause of action accrued. It says nothing about therequirement that the plaintiff's mental illness also preventedher from bringing the action until a date less than six yearsbefore the day she filed this action.

After remand, the defendants again moved for summary judgmentbased on the reasoning in my first recommended decision. Motionfor Entry of Judgment on Alternative Grounds (Docket No. 56) at3-9. Laches was not mentioned in this motion. I again recommendedthat the motion be granted, on the grounds set forth in my firstrecommended decision. Recommended Decision on Defendants' Motionfor Entry of Summary Judgment (Docket No. 63) at 2-3. Chief JudgeSingal, to whom the case had been re-assigned, heard oralargument on the plaintiff's objection to the recommended decisionand ruled as I have noted in footnote 2 above. The plaintiff now contends that collateral estoppel bars thedefendants from raising the statute-of-limitations issue again.Motion to Strike at 4. The only authority cited by the plaintiffin support of this argument, Acevedo-Garcia v. Monroig,351 F.3d 547 (1st Cir. 2003), requires as one of several elementsnecessary for the application of collateral estoppel that anearlier resolution of the issue was final, i.e., that the issuewas determined by a valid and binding final judgment, id. at575. A ruling denying a party summary judgment can never becorrectly characterized as a valid and binding final judgment; byits very terms such a ruling contemplates further litigation ofthe claims asserted. Contrary to the plaintiff'scharacterization, the question "whether the opinion testimony ofDr. Diane Schetky [was] sufficient to create [a] jury question,"Motion to Strike at 4, was not finally decided by the FirstCircuit, nor would entry of a final judgment be appropriate as toany of the plaintiff's claims even if the characterization werecorrect.

The plaintiff next argues that, because discovery was initiallybifurcated, so that discovery was initially limited to thestatute-of-limitations question, the defendants may not now movefor summary judgment, after the initial period of discovery hasexpired, based on evidence discovered only after the expirationof that period. Motion to Strike at 4-5. The plaintiff cites noauthority in support of this novel contention. In any event, theargument cannot be sustained in the face of Judge Singal's rulingat the conclusion of oral argument on the second motion forsummary judgment, denying the motion "without prejudice for latermotions to be filed" and noting that "this is a close questionand one that future factual results may affect." Transcript at38. See generally Fisher v. Trainor, 242 F.3d 24, 29 n. 5 (1stCir. 2001) (initial denial of summary judgment does not foreclosesubsequent grant of summary judgment on amplified record).

The plaintiff asserts that "[t]he issue of laches was raisedand addressed in Plaintiff's initial Motion for Summary Judgment,and should not again be allowed to be argued." Motion to Strikeat 4 n. 2. Understandably, no authority is cited in support of thisargument. As noted above, the issue of laches was not reached inany decision made by the court in this case to date. There is noconceivable legal basis for the plaintiff's position on thelaches issue.

Finally, the plaintiff asks the court to order the defendantsto pay "all expert fees, costs and attorney's fees for thePlaintiff" if her motion is denied. Motion to Strike at 5. Theplaintiff apparently seeks payment of all such costs, regardlessof when they were incurred or to which issue they may relate.Contrary to the plaintiff's assertion, she will not be"dramatically prejudiced" if the court entertains the currentmotion for summary judgment. She would have incurred all of herexpert witness fees and most of her costs and attorney fees evenif the motion had not been brought. Whether the motion forsummary judgment is granted or not, the plaintiff has been"prejudiced," at most, to the extent of costs actually incurredsolely in connection with that motion. Because the plaintiff hasnot established that the motion was wrongfully brought by thedefendants, she is not entitled to an award of feeds or costs.

The motion to strike is denied.

II. Motion for Summary Judgment

A Summary Judgment Standards

1. Federal Rule of Civil Procedure 56

Summary judgment is appropriate only if the record shows "thatthere is no genuine issue as to any material fact and that themoving party is entitled to judgment as a matter of law."Fed.R.Civ.P. 56(c); Santoni v. Potter, 369 F.3d 594, 598 (1st Cir.2004). "In this regard, `material' means that a contested facthas the potential to change the outcome of the suit under thegoverning law if the dispute over it is resolved favorably to thenonmovant. By like token, `genuine' means that `the evidenceabout the fact is such that a reasonable jury could resolve thepoint in favor of the nonmoving party.'" Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001) (quotingMcCarthy v. Northwest Airlines, Inc., 56 F.3d 313, 315 (1stCir. 1995)).

The party moving for summary judgment must demonstrate anabsence of evidence to support the nonmoving party's case.Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). Indetermining whether this burden is met, the court must view therecord in the light most favorable to the nonmoving party andgive that party the benefit of all reasonable inferences in itsfavor. Santoni, 369 F.3d at 598. Once the moving party has madea preliminary showing that no genuine issue of material factexists, the nonmovant must "produce specific facts, in suitableevidentiary form, to establish the presence of a trial worthyissue." Triangle Trading Co. v. Robroy Indus., Inc.,200 F.3d 1, 2 (1st Cir. 1999) (citation and internal punctuation omitted);Fed.R.Civ.P. 56(e). "As to any essential factual element ofits claim on which the nonmovant would bear the burden of proofat trial, its failure to come forward with sufficient evidence togenerate a trialworthy issue warrants summary judgment to themoving party." In re Spigel, 260 F.3d 27, 31 (1st Cir. 2001)(citation and internal punctuation omitted).

2. Local Rule 56

The evidence the court may consider in deciding whether genuineissues of material fact exist for purposes of summary judgment iscircumscribed by the Local Rules of this District. See Loc. R.56. The moving party must first file a statement of materialfacts that it claims are not in dispute. See Loc. R. 56(b).Each fact must be set forth in a numbered paragraph and supportedby a specific record citation. See id. The nonmoving party mustthen submit a responsive "separate, short, and concise" statementof material facts in which it must "admit, deny or qualify thefacts by reference to each numbered paragraph of the movingparty's statement of material facts[.]" Loc. R. 56(c). Thenonmovant likewise must support each denial or qualification withan appropriate record citation. See id. The nonmoving party mayalso submit its own additional statement of material facts that it contends arenot in dispute, each supported by a specific record citation.See id. The movant then must respond to the nonmoving party'sstatement of additional facts, if any, by way of a replystatement of material facts in which it must "admit, deny orqualify such additional facts by reference to the numberedparagraphs" of the nonmovant's statement. See Loc. R. 56(d).Again, each denial or qualification must be supported by anappropriate record citation. See id.

Failure to comply with Local Rule 56 can result in seriousconsequences. "Facts contained in a supporting or opposingstatement of material facts, if supported by record citations asrequired by this rule, shall be deemed admitted unless properlycontroverted." Loc. R. 56(e). In addition, "[t]he court maydisregard any statement of fact not supported by a specificcitation to record material properly considered on summaryjudgment" and has "no independent duty to search or consider anypart of the record not specifically referenced in the parties'separate statement of fact." Id.; see also, e.g., Cosme-Rosadov. Serrano-Rodriguez, 360 F.3d 42, 45 (1st Cir. 2004) ("We haveconsistently upheld the enforcement of [Puerto Rico's similarlocal] rule, noting repeatedly that parties ignore it at theirperil and that failure to present a statement of disputed facts,embroidered with specific citations to the record, justifies thecourt's deeming the facts presented in the movant's statement ofundisputed facts admitted." (citations and internal punctuationomitted).

B. Factual Background

The parties have submitted extensive statements of materialfacts in connection with the motion for summary judgment, inaccordance with this court's Local Rule 56.4 I willrecite here only the undisputed material facts that differ from or expand upon those submitted bythe parties in connection with the two earlier motions forsummary judgment. Those facts are summarized in my recommendeddecision on the first motion for summary judgment.5

When the plaintiff was taken to the York County jail in 1971,she was unable to make bail. Defendants' Statement of MaterialFacts ("Defendants' SMF") (Docket No. 95) ¶ 197; Plaintiff'sResponse to Defendants' Statement of Material Facts ("Plaintiff'sResponsive SMF") (Docket No. 111) ¶ 197. When the plaintiff wasarraigned on these charges she was represented by a publicdefender. Id. ¶ 199. After the arraignment the plaintiffcontacted a lawyer who was a friend of the family and he agreedto represent her. Id. ¶¶ 200, 206. On October 20, 1971 theplaintiff, in the presence of her lawyer, executed a waiver ofindictment and petition acknowledging that she had been advisedof the nature of the charge against her, advised of her rights,and waived prosecution by indictment and consented to the caseproceeding against her by information. Id. ¶ 208. On October22, 1971 the plaintiff appeared in court and was convicted, basedon her guilty plea, of the offense of using a motor vehiclewithout the owner's consent. Id. ¶ 218.6 According to Dr. Schetky, the plaintiff has the ability toconcentrate and retain information, to obtain satisfactory gradeswhen tested on that information, to put together a resume oremployment application and to get a job. Id. ¶¶ 266-68. Atdeposition, Dr. Schetky could not give an opinion that theplaintiff was capable of functioning in society and protectingher legal rights at the time she entered the York County jail in1971 because she did not have enough data. Id. ¶ 275.7In Dr. Schetky's opinion, the fact that an individual isdepressed and has an adjustment disorder and personality disorderdoes not establish whether she is able to function in society andprotect her legal rights. Id. ¶ 277.

Dr. Schetky has also opined that the plaintiff has beendepressed since childhood and did not function well duringadolescence. Plaintiff's Additional Statement of Material Facts("Plaintiff's SMF") (Docket No. 112) ¶ 228; Defendants' Reply toPlaintiff's Statement of Additional Material Facts ("Defendants'Responsive SMF") (Docket No. 122) ¶ 228. When the plaintiffentered jail she was depressed and passively suicidal and haddifficulty with focus and concentration. Id. ¶ 230.

C. Discussion

1. Statute of limitations. The defendants contend that all ofthe plaintiff's claims are barred by the six-year Maine statuteof limitations. Summary Judgment Motion at 13-20. Their firstargument on this point asserts that the plaintiff cannot showthat she was mentally ill when her cause of action accrued. Withrespect to this issue, the only evidence in the record thatpostdates the oral argument before Chief Judge Singal that is discussed by the parties is the depositiontestimony and third affidavit of Dr. Schetky. Summary JudgmentMotion at 14; Plaintiff's Memorandum in Opposition to Defendants'Third Motion for Summary Judgment ("Summary Judgment Opposition")(Docket No. 110) at 19-21. The defendants rely solely on Dr.Schetky's responses to two questions at her deposition, which arepresented as paragraphs 275 and 276 in their statement ofmaterial facts. The defendants contend that these responses are"strikingly at odds with" statements in Dr. Schetky's secondaffidavit, which was dated May 27, 2003. Summary Judgment Motionat 14 n. 3.

I agree that paragraph 5 of that affidavit, Affidavit of DianeH. Schetky, Exh. 3 to Motion for Reconsideration (Docket No. 44)¶ 5, does appear to be inconsistent with the testimony cited inparagraphs 275 and 276 of the defendants' statement of materialfacts, Transcript, Deposition of Diane H. Schetky, M.D. ("SchetkyDep.") (Exh. P to Summary Judgment Motion) at 61-63. Thisdiscrepancy does not mean that the defendants are entitled tosummary judgment, however. The defendants cite Torres v. E.I.DuPont de Nemours & Co., 219 F.3d 13, 20 (1st Cir. 2000), insupport of their position. Summary Judgment Reply at 3. Thesituation in the present case is the reverse of that in Torres,where the party opposing summary judgment submitted affidavitsthat contradicted testimony the affiants had given at deposition.Torres, 219 F.3d at 20. The First Circuit upheld the strikingof the affidavits because no appropriate explanation was providedfor the changes. Id. at 20-21. Here, the moving party seeks torely only on the deposition testimony that appears to contradictstatements in the deponent's earlier affidavit. Unlike thesituation in Torres, Dr. Schetky has in this case submitted anexplanation of the apparent discrepancy. Affidavit of Diane H.Schetky (Exh. 6 to Summary Judgment Motion) ¶¶ 1, 5. Thedefendants contend that the court should not consider this mostrecent affidavit of Dr. Schetky because it "attempts to make adistinction that appears to be no more than gamesmanship."Summary Judgment Reply at 4. In connection with a motion for summary judgment the court may determine onlywhether a proffered explanation is satisfactory or appropriatebut not whether the affiant is credible. I conclude that theexplanation offered by Dr. Schetky is sufficient.

The defendants' next argument is that the plaintiff cannot showthat her mental illness continued from the time of the allegedrapes in 1971 to four or six years before she filed the complaintin this action. Summary Judgment Motion at 14-20. The evidencecited by the defendants in support of this contention that wasnot before the court at the time of Judge Singal's ruling appearsin the following paragraphs of their statement of material facts:170-72, 175, 182, 184, 187-88, 200-01, 205, 208, 211-15, 228,230, 234-36, 266-74, and 278-79. Compare Docket No. 17 withDocket No. 95. Of these, the plaintiff adequately disputesparagraphs 212-13, 215, and 271. She objects to paragraphs 228,230, 234-36, 269, 273-74 and 278-79. The objections to paragraphs228, 230 and 234-36 are well-taken, for the reasons set forth infootnote 6 above. The objections to paragraphs 269, 273-74 and278-79 are overruled. Consideration of the additional evidenceproperly before the court at this time — paragraphs 170-72, 175,182, 184, 187-88, 200-01, 208, 266-70, 272-74 and 278-79 of thedefendants' statement of material facts — leads me to theconclusion that the defendants are correct. The following facts,taken with the previously undisputed material facts, even whenconsidered in the light most favorable to the plaintiff, supporta conclusion that the defendants are entitled to judgment as amatter of law because the plaintiff is unable to establish thather mental illness continued throughout the relevant period oftime: that the plaintiff completed a one-year full-time dentalassistant program, ¶¶ 171-72; that she was a licensed dentalassistant for approximately 5 years in the mid- to late 1980s,id. ¶ 175; that she was hired after meeting with Dr. Fairchildand his wife, id. ¶ 182; that she had no trouble performing herjob as a dental assistant for Dr. Fairchild, id. ¶ 184; that aspart of her work for Dr. Fairchild the plaintiff brought patientsinto the surgery room, placed a surgical napkin on their chest, took and recordedtheir blood pressure, monitored their heart rates, held theirheads during the procedure and gave the patients post-opinstructions, id. ¶¶ 187-88; that she consulted a lawyer whowas a friend of the family after her arrest in 1971 and that sheknew that this lawyer's father was a judge and a good friend ofher grandfather, id. ¶¶ 200-01; that she executed a waiver ofindictment in connection with the 1971 arrest, id. ¶ 208; thatDr. Schetky testified that the plaintiff had the ability toconcentrate and retain information, to be tested on thatinformation and obtain satisfactory grades, to put together aresume or employment application and get a job and to sit down,be interviewed by a person who hired her and be perceived ashaving the necessary skills to do the job, id. ¶¶ 266-69; thatin her job as a dental assistant, the plaintiff exhibited hertraining, ability to recollect and a moderate to high level offunctioning, id. ¶ 270; that prior to her deposition onDecember 1, 2004 Dr. Schetky was not aware that the plaintiff hadretained lawyers to represent her in a worker's compensation caseand a Social Security claim, id. ¶ 272; that Dr. Schetky opinedthat the retention of these lawyers demonstrated her ability tofunction to protect her legal rights in the workplace, but it didnot help her with the social support needed to go through alawsuit involving emotional trauma such as rape, id. ¶¶ 273-74& Schetky Dep. at 51-52; and that Dr. Schetky understood thatcertain proceedings would have taken place when the plaintiff'sguilty plea was accepted by a court and that Dr. Schetkybelieved, assuming that the court deemed her competent to enter aplea, that the plaintiff was competent to enter a guilty plea toa charge of motor vehicle theft in the early 1970s, Defendants'SMF ¶¶ 278-79.8 Judge Singal stated, at the time of the oral argument beforehim on the second motion for summary judgment, that the questionwhether the plaintiff could establish that her mental illnesscontinued to prevent her from functioning in society so as to becapable of protecting her legal rights was a close one.Transcript at 37. It remains a close question, but, particularlygiven Dr. Schetky's deposition testimony that the plaintiffdemonstrated her ability to protect her legal rights on twooccasions during the relevant period by hiring lawyers, alongwith the other undisputed evidence set forth above, thedefendants are entitled to summary judgment because the plaintiffhas failed to offer evidence that would allow a reasonablefactfinder to conclude that she suffered from an overallinability to function in society that prevented her fromprotecting her legal rights continuously from the time of thealleged rapes to six or four years before this action wasbrought.

Because the question on the second prong of the McAfee testfor tolling of the statute of limitations is close, I willaddress the other issues raised by the defendants.

2. Estoppel. The defendants next contend that the plaintiffis collaterally and judicially estopped to contend that she wasmentally ill at all times between the alleged rapes in 1971 andsix or four years before this action was filed because sheentered guilty pleas to criminal charges in 1971 and 1974 andsuch pleas may not be accepted by a court unless it hasascertained that the defendant understands the charge and makesthe plea voluntarily. Summary Judgment Motion at 21. In theabsence of transcripts of the proceedings at which the plaintiffpleaded guilty in each instance, the defendants are asking thiscourt to draw a generous inference in their favor — that thecourts involved did in fact determine that the plaintiff wasentering the pleas voluntarily and knowingly. In considering amotion for summary judgment, this court may draw inferences only in favor of the party opposing the motion, andthen only reasonable inferences. Moreover, none of the case lawcited by the defendants supports their arguments that such a pleamay support collateral or judicial estoppel. The standards foraccepting a guilty plea and the definition of mental illnessapplicable to this case are not the same. See, e.g., Chasse v.Mazerolle, 580 A.2d 155, 157 (Me. 1990).

In addition, for purposes of collateral estoppel, acceptance ofa guilty plea in a criminal case cannot reasonably be construedas resolving the question whether the defendant in that criminalcase suffered from an overall inability to function in societythat prevented her from protecting her legal rights, the legalstandard at issue here.9 Collateral estoppel requires anidentity of issues. Monroig, 351 F.3d at 575. Similarly,"[j]udicial estoppel protects the integrity of the courts bypreventing a litigant who has obtained a benefit in one forumfrom invoking the authority of another court to escape theburdens of that bargain." Kinan v. Cohen, 268 F.3d 27, 32 n. 5(1st Cir. 2001). The plaintiff in this action may not reasonablybe said to have obtained a benefit when she was allowed to pleadguilty to criminal charges. Particularly where, as here, there isno evidence that the plaintiff received a lower sentence or thatsome charges were withdrawn in connection with her pleas, thereis no evidence that either plea involved a "bargain" that she isnow seeking to escape by claiming entitlement to tolling of theapplicable statute of limitations under 14 M.R.S.A. § 853. Thepleas provide some evidence that may be valuable to thefactfinder in determining whether the McAfee standard has beenmet, but they cannot stand as sufficient evidence to prove thatit has not. 3. Laches. The defendants next assert that the plaintiff'sdelay in bringing this action is unreasonable and has resulted inprejudice to the defendants, contending that the burden ofdisproving laches is on the plaintiff in this case. SummaryJudgment Motion at 25-26 & n. 9. In general, [t]he equitable doctrine of laches bars assertion of a claim where a party's delay in bringing suit was 1) unreasonable, and 2) resulted in prejudice to the opposing party.K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 911 (1stCir. 1989). When a plaintiff files a complaint within theapplicable statute of limitations, the burden is on the defendantto prove the elements of laches. Id. The Maine Law Court hasobserved that a statute of limitations enacted by the MaineLegislature "imposes a maximum time limit within which all civilactions may be brought, but does not prevent the shortening ofthis period pursuant to the application of the equitable doctrineof laches." Grindle, 651 A.2d at 350 n. 1. The Law Court hasalso defined laches as "an omission to assert a right for anunreasonable and unexplained period of time under circumstancesprejudicial to the adverse party." H.E. Sargent, Inc. v. Town ofWells, 676 A.2d 920, 925 (Me. 1996). In this case, Maine hasprovided by statute that the applicable statute of limitations istolled while a plaintiff is mentally ill, and the Law Court hasdefined mental illness for purposes of that tolling statute. Torequire the plaintiff to disprove laches in order to benefit, asthe legislature intended, from the tolling statute would be toweaken the statute to a point where it would be honored rarely,if at all. Extending a statute of limitations beyond six yearswill inevitably result in prejudice to the potential opposingparty. Here, the Legislature has determined as a matter of lawthat barring a mentally ill plaintiff from bringing suit becausethe statute of limitations ran during that mental illness isinherently unreasonable. The plaintiff's delay in bringing thisaction has been explained and cannot be unreasonable if sheestablishes that she meets the requirements of the statute andthe construing case law. 4. The Merits. The defendants' parting shot, presented inconclusory fashion at the close of their initial brief, assertsthat the plaintiff is unable to generate facts to establish thatthere was a custom, policy or habit at the York County jail in1971 of providing keys to the cells to an inmate trustee. SummaryJudgment Motion at 26-27. The plaintiff responds that she haspresented enough evidence to allow a jury to find that thedefendants were deliberately indifferent to a risk of seriousharm to female inmates of the jail in 1971. Summary JudgmentOpposition at 32. She cites evidence of a 1969 report by theMaine Department of Health and Corrections on the conditions ofthe York County jail with recommendations for change which shecontends were ignored by the defendants, evidence that inmateswere given keys to cells occupied by males and that keys to thecells were kept in an unlocked desk in a room which occasionallywas left without a corrections officer in it and to which inmateshad access, evidence that female inmates were housed in the samewing of the jail as male inmates and that female prisoners had towalk in front of cells occupied by male inmates, evidence thatmale guards rather than matrons held the keys to the cellsoccupied by females in violation of regulations promulgated bythe Department of Health and Corrections, and evidence thatcorrections officers were not give manuals or proper on-the-jobtraining. Id. at 32-37. The defendants respond that "many ofthe facts Plaintiff now offers to support her civil rights claimare either unclear, inadmissible, or contested by Defendants."Summary Judgment Reply at 13. Of course, if the asserted factsare "contested by Defendants," summary judgment is not availableby definition. The defendants do not identify those paragraphs ofthe plaintiff's statement of material facts which they contendare essential to support her argument and are "unclear" or"inadmissible."

While not all of the evidence cited by the plaintiff mayprovide the necessary "direct causal link" between a policy orcustom of the defendants and the alleged rapes, Burrell v.Hampshire County, 307 F.3d 1, 10 (1st Cir. 2002), some of it may well do so, and thatis all that is required in order to defeat a motion for summaryjudgment. The defendants are not entitled to summary judgment onthis basis.

III. Conclusion

For the foregoing reasons, the plaintiff's motion to strike(Docket No. 98) is DENIED and I recommend that the defendants'motion for summary judgment (Docket No. 94) be GRANTED. Theaction should also be dismissed as to any defendants other thanYork County and the York County Sheriff's Department.

1. The complaint in effect at this time also names asdefendants "Unknown Defendants, Deputy Sheriffs." AmendedComplaint and Jury Claim (Docket No. 11) at 1. Counsel for YorkCounty and the York County Sheriff's Department does notrepresent the unknown deputy sheriff defendants. Letter datedSeptember 4, 2002 from Gene R. Libby to William S. Brownell(Docket No. 10) at 1. By letter dated September 6, 2002 counselfor the plaintiff represented that he "does not wish to amend toexclude the unidentified defendants" and "seeks to leave inunnamed parties until such time as individuals may beidentified." Letter from Thomas F. Hallett to William S. Brownell(Docket No. 12). Two and one-half years later, there is noindication on the record that any such individuals have been"identified" or served, nor has any motion for default been filedwith respect to these individuals. The case should therefore bedismissed as against these defendants. Carreras-Rosa v.Alves-Cruz, 215 F.3d 1311 (table), 2000 WL 543968 (1st Cir. Apr.20, 2000), at **1-**2; Glaros v. Perse, 628 F.2d 679, 685(1st Cir. 1980).

2. This is the defendants' third motion for summary judgmenton the issues of the statute of limitations and the doctrine oflaches. The first, Docket No. 16, was granted on thestatute-of-limitations issue. Docket Nos. 37 (recommendeddecision), 42 (affirming decision on different basis). Theplaintiff appealed from that judgment, Docket No. 49, and theFirst Circuit reversed and remanded, Docket Nos. 53-55. Irecommended that the second motion for summary judgment, DocketNo. 56, be granted on the same basis as that set forth in myoriginal recommended decision, Recommended Decision onDefendants' Motion for Entry of Summary Judgment (Docket No. 63).After hearing argument on that recommended decision, Judge Singalheld that "there is [in] fact [a] genuine issue of materialfact? as to plaintiff's overall inability to function in societythat may have prevented her from protecting her legal rights" anddenied the motion. Transcript of Proceedings, Douglas v. YorkCounty, et al., Docket No. 02-102-P-S, July 13, 2004("Transcript"), at 37-38. The denial was specifically made"without prejudice for later motions to be filed." Id. at 38.

3. The portion of this motion that sought a stay pending thecourt's action on the motion to strike has been denied. MarginEndorsement, Motion to Strike.

4. The defendants have even submitted, without seeking leaveto do so, a "reply" to the plaintiff's response to the statementof material facts submitted by the defendants in support of theirmotion for summary judgment. Defendants' Reply to Plaintiff'sResponse to Defendants' Statement of Material Facts (Docket No.121). Such a "reply" is not contemplated by Local Rule 56. In theabsence of any request for leave to file this document, it willnot be considered.

5. For a summary of the other undisputed material evidence inthe summary judgment record, see First Recommended Decision at3-6.

6. The plaintiff objects to eleven subsequent paragraphs ofthe defendants' statement of material facts on the assertedground that they are based on an exhibit which was "not timelyoffered as F.R.Civ.P. 44 evidence, and [are], therefore,inadmissible." Plaintiff's Responsive SMF ¶¶ 227-28, 230-37. I donot rely on the information included in those paragraphs inreaching my recommended decision. I do note, however, that afterJudge Singal's ruling on the second motion for summary judgment,I issued a scheduling order which established December 17, 2004as the discovery deadline and as the deadline to identify andproduce Local Rule 44 records. Report of Scheduling Conferenceand Second Phase Scheduling Order (Docket No. 73) at 2. I assumethat it is the deadline for Local Rule 44 materials to which theobjection refers; the plaintiff does not mention this objectionin her memoranda. The discovery deadline was extended, at theplaintiff's request, to January 31, 2005. Margin endorsement,Plaintiff's Motion to Enlarge Discovery Period (Docket No. 84).Counsel for the defendants represents that the exhibit at issuewas provided to the plaintiff on January 31, 2005, the newdiscovery deadline. Reply to Plaintiff's Opposition toDefendants' Motion for Summary Judgment ("Summary JudgmentReply") (Docket No. 120) at 2. Counsel may not assume that thedeadline for Rule 44 documents was extended in a similar fashionsub silentio when the discovery deadline was stated separatelyin the initial scheduling order.

7. The plaintiff objects to this paragraph of the defendants'statement of material facts, contending that the question towhich Dr. Schetky gave the response set forth "is not anappropriate standard." Plaintiff's Responsive SMF ¶ 275. Theapplicable standard is not established by statute; it is found ina decision of the Law Court. Specifically, that court said inMcAfee that "[m]ental illness under the tolling statute refersto an overall inability to function in society that preventsplaintiffs from protecting their legal rights." 637 A.2d at 466(emphasis in original). I do not agree that the question whetherthe plaintiff "was overall capable of functioning in life andprotecting her legal rights" invokes "a different standardentirely," as the plaintiff asserts. Plaintiff's Responsive SMF ¶275. At most, the difference in wording between McAfee and thequestion posed goes to the weight to be given to Dr. Schetky'sresponse, not to its admissibility. The objection is overruled.

8. In addition to her objection which has been overruled, theplaintiff purports to deny paragraph 279 of the defendants'statement of material facts. Plaintiff's Responsive SMF ¶ 279.The denial offered by the plaintiff does not address thesubstance of Dr. Schetky's deposition testimony but rather itsweight, given the fact that Dr. Schetky seemed to backtrack fromthe testimony on which the defendants rely. Schetky Dep. at69-71. I have therefore treated the purported denial as aqualification. I note that Dr. Schetky apparently believes thatthe plaintiff at all relevant times suffered from an inability tofunction in society that prevented her from protecting her legalrights with respect to the claims raised in this action, but theMcAfee standard is not so narrowly drawn.

9. As an opinion cited by the defendants states, "[a] Rule 11determination that a plea was voluntary and intelligent subsumesand definitively determines that the plea was made by a competentdefendant," and competence is defined in this context as being"capable of understanding the nature and object of the chargesand proceedings against him, of comprehending his own conditionin reference thereto, and of conducting . . . his defense in arational and reasonable manner." State v. Vane, 322 A.2d 58, 61(Me. 1974). That definition of competence cannot be said to bethe equivalent of the McAfee standard.

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