Ouellette v. Beaupre

United States Court of Appeals
For the First Circuit
No. 19-2069
LAWRENCE ROLAND OUELLETTE,
Plaintiff, Appellant,
v.
ROGER BEAUPRE, individually and in his official capacity as
Chief of Police for the Biddeford Police Department;
CITY OF BIDDEFORD,
Defendants, Appellees,
NORMAN GAUDETTE,
Defendant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. Lance E. Walker, U.S. District Judge]
Before
Thompson, Lipez, and Kayatta,
Circuit Judges.
Walter F. McKee, Matthew D. Morgan, Kurt C. Peterson, and
McKee Law LLC, P.A. on brief for appellant.
Timothy J. Bryant, Jonathan G. Mermin, and Preti Flaherty on
brief for appellee, Roger Beaupre.
Keith R. Jacques and Woodman Edmands Danylik Austin Smith and
Jacques on brief for appellee, City of Biddeford.
October 7, 2020
LIPEZ, Circuit Judge. Appellant Lawrence Ouellette
alleges that he was sexually abused as a teenager in the late 1980s
by a Biddeford Police Department ("BPD") officer, Captain Norman
Gaudette. Although Ouellette reported the abuse to the BPD in
that same timeframe and an investigation ensued, Ouellette only
learned in 2015 through a series of social media posts that the
BPD, and specifically Chief of Police Roger Beaupre, allegedly
knew of at least one other report of Gaudette sexually abusing a
minor that pre-dated Ouellette's experience. The posts also
described a pattern of alleged sexual misconduct by BPD officers
over the past thirty years.
Armed with this newly discovered information, Ouellette
brought suit on October 29, 2015, pursuant to 42 U.S.C. § 1983,
against Gaudette, the City of Biddeford, and Beaupre alleging, as
relevant here, that the City and Beaupre were deliberately
indifferent to Gaudette's violation of his constitutional rights.
The City and Beaupre (collectively, "appellees") moved for summary
judgment, arguing, inter alia, that Ouellette's suit was barred by
the statute of limitations. In response, Ouellette asserted that,
pursuant to the federal discovery rule, his claims against the
City and Beaupre did not accrue until 2015, when he first learned
of their role in facilitating Gaudette's unconstitutional conduct.
The district court granted appellees' motion, agreeing
with their contention that Ouellette's claims are nearly twenty
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years late under the applicable statute of limitations. Finding
no basis for summary judgment on this ground, we vacate and remand
the case for further proceedings.
I.
A. Factual Background
We draw the factual background from the evidence in the
summary judgment record and the parties' statements of undisputed
facts. Ouellette first met Gaudette in late 1986 or early 1987,
when he was fifteen years old. Gaudette introduced himself as a
captain of the BPD and, with police radio in hand, offered
Ouellette a ride home from school, which Ouellette accepted. When
Gaudette dropped Ouellette off at home, he asked Ouellette's mother
if Ouellette could work at Twin City Cleaning, a commercial
cleaning business run by Gaudette and his wife. Ouellette's
mother, who apparently knew Gaudette, gave her permission, and
Ouellette began working for Twin City Cleaning.
According to Ouellette, he and Gaudette had their first
sexual encounter in the late summer or early fall of 1987 in a
KeyBank facility that Twin City Cleaning had been hired to service.
Gaudette allegedly asked Ouellette to accept fifty dollars in
exchange for engaging in oral sex with him. Thus began a series
of more than twenty encounters between 1987 and the fall of 1988
in which, Ouellette claims, he and Gaudette engaged in oral sex,
sometimes in exchange for money. According to Ouellette, these
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incidents frequently took place in Ouellette's mother's house
while Gaudette was on duty with his BPD police radio switched on.
Occasionally, Ouellette would meet Gaudette at the police station
before they went to his mother's house together; other times,
Gaudette would call Ouellette from his BPD office to make sure
that Ouellette was home before driving to meet him.
Ouellette also testified that Gaudette took him on
camping trips. During one camping trip to Naples, Maine, in the
spring of 1988, Gaudette allegedly provided liquor to Ouellette,
who passed out, and awoke with pain in his genitals, a torn rectum,
and blood and feces in his underwear. Ouellette believes that
Gaudette raped him while he was unconscious.
During this period of alleged abuse, Gaudette helped
Ouellette with legal problems on two occasions. Once, after
Ouellette had his learner's permit revoked, Gaudette "spoke to the
judge and got it straightened out." On another occasion, Gaudette
intervened on Ouellette's behalf after Ouellette was charged with
driving with a suspended license.
Ouellette first reported Gaudette's alleged abuse to BPD
Detective Terry Davis in 1988 or 1989. Davis, who had no prior
relationship with Ouellette, called Ouellette and told him that he
was worried about him. Shortly thereafter, Ouellette met with
Davis at the BPD station, and later also met with BPD Detective
Richard Gagne. He told both Davis and Gagne about the incident
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that occurred in Naples, but he did not share information about
the instances of oral sex.
In the fall of 1990, Gagne told Chief Beaupre about
Ouellette's allegations against Gaudette. Beaupre instructed
Gagne to refer the matter to the York County District Attorney's
office, which Gagne did. The York County District Attorney's
Office in turn referred the matter to the Maine Attorney General's
Office for further investigation.
Unbeknownst to Ouellette, by the time he reported
Gaudette's abuse to the BPD, the Department had already received
at least two complaints from individuals who claimed that Gaudette
had sexually abused them during their teenage years. In the early
1980s, a minor reported to BPD Officers Joanne Fisk and Alphee
Lambert, as well as BPD Detective Richard Gagne, that Gaudette had
engaged in inappropriate sexual contact with him.1 In the mid-
1980s, yet another individual reported to the BPD that Gaudette
had sexually assaulted him. That individual provided a written
statement to Deputy Chief Benoit Martin, which Martin forwarded to
Chief Beaupre. Although there is some dispute regarding the exact
steps, if any, that the BPD took to investigate these two reports,
1 BPD Officer Robert Devou also testified that he saw the
minor's statement in the possession of Deputy Chief Benoit Martin,
who told Devou that Chief Beaupre had assigned it to him to
investigate. Beaupre, however, denied having any recollection of
seeing that particular report.
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it is undisputed that no disciplinary action was taken in response
to these reports prior to Gaudette's alleged abuse of Ouellette.2
Meanwhile, in or around October 1990, the Maine Attorney
General's Office sent Investigator Michael Pulire to speak to
Ouellette. Ouellette reported some of his alleged experiences of
abuse to Pulire, including that Gaudette would offer him money for
oral sex and that Gaudette would touch Ouellette's genitals when
they went camping together. He did not tell Pulire about the
alleged rape in Naples, Maine.3
Pulire also visited Chief Beaupre and informed him that
he was conducting an investigation into allegations of sexual abuse
against Gaudette. Beaupre assigned two BPD officers to assist
Pulire with the investigation and placed Gaudette on
administrative leave after meeting with Pulire.
The Maine Attorney General's Office investigation
ultimately resulted in a presentation to the York County Grand
Jury. A few weeks before the grand jury presentation, Ouellette
2
Around the time Ouellette reported his alleged abuse to the
BPD, Chief Beaupre also received a report that a different BPD
officer, Sergeant Stephen Dodd, had allegedly engaged in sexual
abuse of a minor. Later, other individuals also reported alleged
sexual abuse by Dodd to the BPD and Beaupre, and yet another
individual alleged in a report to the BPD in 2008 that she had
been sexually assaulted by Devou.
3
At some point, however, Ouellette told a different
representative from the Maine Attorney General's Office --
Assistant Attorney General Eric Wright -- about that incident.
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met with York County District Attorney Michael Cantara and again
described the sexual abuse that he allegedly suffered at the hands
of Gaudette. However, the grand jury proceeding was ultimately
limited to a presentation regarding one of the other individuals
who had alleged that Gaudette sexually abused him. The grand jury
declined to indict Gaudette.
While the Maine Attorney General's Office investigation
was underway, but before it culminated in the grand jury
presentation, Chief Beaupre also initiated a separate BPD Internal
Affairs investigation into allegations of sexual abuse against
Gaudette. The deposition testimony given in this case reveals
that some of the details of this investigation are disputed. Chief
Beaupre testified, consistent with contemporaneous documentary
evidence, that he assigned Captain Royal Marcoux to lead the
Internal Affairs investigation. However, Marcoux testified that
he refused to lead an investigation into a fellow captain and that
Beaupre must have reassigned the investigation to someone else.
Additionally, Gagne testified that he invited Ouellette
to come to the BPD station to be interviewed for the Internal
Affairs investigation, but Ouellette never responded. Ouellette
testified that he was never invited to participate in the Internal
Affairs investigation and did not even know that such an
investigation was going on at the time. In any event, a memorandum
in the record from Chief Beaupre dated May 17, 1991, indicates
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that the Internal Affairs investigation was closed at that time
with a final disposition of "No Action Taken." After both the
Maine Attorney General's Office investigation and the BPD Internal
Affairs investigation were completed, Beaupre reinstated Gaudette
to his position.
Ouellette tried to move on with his life. However, in
2015, he saw numerous social media postings about allegations of
sexual abuse committed by multiple BPD officers, including
Gaudette. Through these social media postings and their subsequent
coverage in the local media, Ouellette learned for the first time
that the BPD and Chief Beaupre, although aware of allegations
against Gaudette that predated Ouellette's alleged abuse, had not
taken any disciplinary action against Gaudette.
This information surprised Ouellette, who never
suspected that "a police department that [he] trusted would ever
tolerate criminal and abusive behavior by an officer within its
ranks." Prior to the social media postings, none of the
allegations against Gaudette or any of the other BPD officers
accused of sexual misconduct were public. The BPD Internal Affairs
investigation, as well as the Maine Attorney General's
investigation and York County Grand Jury presentation, were kept
confidential and never publicized outside of the respective
offices responsible for them.
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B. Procedural History
Ouellette filed this lawsuit in state court on October
29, 2015 -- less than a year after the social media posts
publicized the stories of other alleged sexual abuse victims of
BPD officers, including Gaudette. In his complaint, Ouellette
asserted constitutional claims pursuant to 42 U.S.C. § 1983
against Gaudette and appellees, as well as a state law negligent
supervision claim against appellees. After the case was removed
to federal court on the basis of federal question jurisdiction,
Ouellette amended his complaint to add a state law sexual assault
claim against Gaudette and to clarify that he was not aware of
Beaupre and the City of Biddeford's role in violating his
constitutional rights until 2015.
Ouellette's constitutional claims against appellees are
based on a theory of deliberate indifference -- that appellees
knew about sexual misconduct by BPD officers, including Gaudette,
and tacitly condoned it by failing to supervise and train officers
regarding appropriate conduct, failing to adequately investigate
allegations of sexual assault, and failing to discipline bad actors
within the police force. According to Ouellette's amended
complaint, this deliberate indifference facilitated Gaudette's
sexual abuse of Ouellette and deprivation of his constitutional
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right to be free from violations of bodily integrity at the hands
of a state actor.4
Shortly after filing his complaint, Ouellette stipulated
to the dismissal of his § 1983 claim against Gaudette and his state
law negligent supervision claim against appellees, acknowledging
that both were time-barred on the face of the complaint. Discovery
then commenced as to the remaining state law sexual assault claim
against Gaudette, as well as the § 1983 claims against Beaupre and
the City of Biddeford. Over the course of several years, the
parties conducted more than seventy-five depositions, but a search
of the BPD's records for documents related to allegations of sexual
assault against Gaudette yielded no results.5
4 Although Ouellette does not use this explicit
characterization in his complaint, we understand him to bring a
Fourteenth Amendment substantive due process claim. See Martínez
v. Cui, 608 F.3d 54, 58 (1st Cir. 2010) (stating that a claim
alleging infringement by a state officer of the right to bodily
integrity is "appropriately characterized . . . as a Fourteenth
Amendment substantive due process claim").
5 The BPD had a policy of retaining offense reports, arrest
reports, and dispatch cards from prior to 1998 in storage trailers,
and access was strictly controlled by Beaupre, who kept the only
key in his office. A search of those trailers was conducted as
part of this case, but no documents relating to allegations against
Gaudette were found there.
The BPD did not have a specific policy for retention of
documents related to allegations of sexual misconduct against BPD
officers in the 1980s. Gaudette's personnel file, reviewed by the
parties during discovery in this case, did not contain any
references to reports of sexual misconduct.
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After discovery was complete, appellees moved for
summary judgment on Ouellette's § 1983 claims. They argued: (1)
the claims were time-barred pursuant to the statute of limitations;
(2) Gaudette was not acting under color of state law when he
allegedly sexually abused Ouellette; (3) there was insufficient
evidence to support Ouellette's allegations of supervisory
liability; and (4) Beaupre was entitled to qualified immunity.
The district court addressed only the first ground
asserted, granting summary judgment to appellees on the basis of
the statute of limitations and rejecting Ouellette's contention
that his claims against Beaupre and the City of Biddeford were
timely under the federal discovery rule. The court held that
Ouellette's awareness of Gaudette's affiliation with the BPD
provided Ouellette with enough information for his claims against
the City and Beaupre to accrue at the time of his injury, in the
late 1980s. See Ouellette v. Gaudette, No. 2:16-cv-00053-LEW,
2019 WL 4467633, at *4-5 & n.5 (D. Me. Sept. 18, 2019).
Alternatively, the court concluded that even if Ouellette's
awareness of Gaudette's affiliation with the BPD at the time of
his injury was not sufficient for purposes of accrual, it still
provided him with enough information to lead a reasonable person
in his position to investigate whether the City and Beaupre had a
role in causing his injury. See id. at *4. In the district
court's view, if Ouellette had diligently undertaken such an
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investigation, he would have uncovered enough information for his
claims to accrue at some unspecified point prior to 1995, six years
after he reached the age of majority, the end point of the
applicable statute of limitations. See id.
Ouellette timely appealed.
II.
We review a grant of summary judgment de novo, construing
the record in the light most favorable to the non-moving party.
See Lapointe v. Silko Motor Sales, Inc., 926 F.3d 52, 54 (1st Cir.
2019). Summary judgment is appropriate only "if the movant shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(a). Facts are deemed "material" if "they have the 'potential
to affect the outcome of the suit under the applicable law,'" and
a dispute is deemed "'genuine' if 'the evidence about the fact is
such that a reasonable jury could resolve the point in the favor
of the non-moving party.'" Cherkaoui v. City of Quincy, 877 F.3d
14, 23-24 (1st Cir. 2017) (quoting Sánchez v. Alvarado, 101 F.3d
223, 227 (1st Cir. 1996)).
Where, as here, a defendant moves for summary judgment
on the basis of an affirmative defense -- like the statute of
limitations -- the defendant bears the burden of proof and "cannot
attain summary judgment unless the evidence that he provides on
that issue is conclusive." See Torres Vargas v. Santiago Cummings,
- 13 -
149 F.3d 29, 35 (1st Cir. 1998). If the defendant produces such
conclusive evidence, "the burden shifts to the plaintiff to
establish that the statute of limitations does not apply."
Asociación de Suscripción Conjunta del Seguro de Responsabilidad
Obligatorio v. Juarbe-Jiménez, 659 F.3d 42, 50 n.10 (1st Cir.
2011).
A. Statute of Limitations for § 1983 Claims
To determine the statute of limitations for a § 1983
cause of action, federal courts look to "the law of the [s]tate in
which the cause of action arose." Wallace v. Kato, 549 U.S. 384,
387 (2007). Specifically, courts apply that state's designated
limitations period for general personal injury torts, see Owens v.
Okure, 488 U.S. 235, 236 (1989), as well as its "coordinate tolling
rules," see Bd. of Regents of Univ. of N.Y. v. Tomanio, 446 U.S.
478, 484 (1980). The parties agree that, for Ouellette's § 1983
claims against the City of Biddeford and Beaupre, the court should
use Maine's statute of limitations for all unenumerated civil
actions, including personal injury torts, which is six years from
the date of accrual. See Me. Stat. tit. 14, § 752 ("All civil
actions shall be commenced within 6 years after the cause of action
accrues and not afterwards . . . .").
Maine law also provides that the statute of limitations
for civil actions may be tolled until a plaintiff reaches the age
of majority. Id. § 853. Thus, the six-year statute of limitations
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for a § 1983 claim brought in the state of Maine based on an injury
that accrued when the plaintiff was a minor will not expire until
six years after the plaintiff turns eighteen. See id.
The application of these statutory provisions to
Ouellette's § 1983 claims is not in dispute. The facts in the
record reveal that Ouellette was a minor when he was allegedly
abused by Gaudette, and that he reached the age of majority in
June 1989. Six years after June 1989 was June 1995. Accordingly,
if Ouellette's claims against appellees, filed in 2015, accrued at
the time of his injury in the late 1980s or at any point prior to
1995, they are time-barred by nearly twenty years. This case thus
turns on our assessment of when a jury could reasonably find that
Ouellette's § 1983 claims against appellees accrued.
B. Accrual of § 1983 Claims
Although federal courts look to state law for the statute
of limitations and tolling principles, "the accrual date of a
§ 1983 cause of action is a question of federal law that is not
resolved by reference to state law." Wallace, 549 U.S. at 388
(emphasis omitted); see Conjugal P'ship Acevedo-Príncipe v. United
States, 768 F.3d 51, 56 (1st Cir. 2014). Under federal law, a
§ 1983 claim accrues when the putative "'plaintiff has a complete
and present cause of action,' . . . that is, when 'the plaintiff
can file suit and obtain relief.'" Wallace, 549 U.S. at 388
(quoting Bay Area Laundry & Dry Cleaning Pension Tr. Fund v. Ferbar
- 15 -
Corp. of Cal., 522 U.S. 192, 201 (1997)). In this context, a
§ 1983 plaintiff has "a complete and present cause of action" when
all of the acts comprising the specific constitutional violation
have been completed. See McDonough v. Smith, 139 S. Ct. 2149,
2155 (2019). However, pursuant to the federal discovery rule,
accrual is delayed until the plaintiff knows, or should know, of
those acts. Specifically, a plaintiff must, or should, be aware
of both the fact of his or her injury and the injury's likely
causal connection with the putative defendant. See Jardín de las
Catalinas Ltd. P'ship v. Joyner, 766 F.3d 127, 133 (1st Cir. 2014)
(citing United States v. Kubrick, 444 U.S. 111, 122 (1979)); see
also Skwira v. United States, 344 F.3d 64, 78 (1st Cir. 2003).
There are some cases in which this information is or
should be apparent to the plaintiff at the time of the injury.
For example, in Vega-Velez v. United States, we held that a claim
brought pursuant to the Federal Tort Claims Act ("FTCA") accrued
at the time that the plaintiff, a security guard working at a
federal courthouse, suffered a slip and fall while on duty. 800
F.2d 288, 289 (1st Cir. 1986) (per curiam). At that point, the
plaintiff knew both that he had been injured and that the federal
government (the owner and operator of the courthouse) was likely
liable for causing that injury.
In other cases, however, an injury may lie dormant
without manifestation until days, months, or even years after it
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has occurred.6 See Kubrick, 444 U.S. at 122; see also Villarini
Garcia v. Hosp. del Maestro, Inc., 8 F.3d 81, 84 (1st Cir. 1993)
(describing the classic case as "the sponge, negligently left
inside the patient during the operation, whose ill effects are not
apparent for several years"). And in other cases still, the injury
may be apparent, but "the facts about causation may be in the
control of the putative defendant, unavailable to the plaintiff or
at least very difficult to obtain." Jardín de las Catalinas, 766
F.3d at 133 (alteration omitted) (quoting Kubrick, 444 U.S. at
122). Under either of these circumstances, the federal discovery
rule delays accrual until "a reasonably prudent person similarly
situated" to the plaintiff would discover these two key pieces of
factual information -- namely, the existence of the injury and its
probable cause. See id. (quoting Nieves-Márquez v. Puerto Rico,
353 F.3d 108, 120 (1st Cir. 2003)); Kubrick, 444 U.S. at 118.
The nature of this information as "factual" is key. In
Kubrick, the seminal Supreme Court case establishing the federal
discovery rule,7 the Court was careful to distinguish between
6
This scenario is not before us, as Ouellette concedes that
he was aware of his injury at the time that it occurred, and he
did not suppress memories of Gaudette's abuse, although he tried
not to think about it because it was so upsetting.
7
Although Kubrick applied the federal discovery rule to a
medical malpractice claim brought pursuant to the FTCA, 444 U.S.
at 121-25, our circuit "has applied the discovery rule outside of
the medical malpractice context, making of it a general rule,"
Rakes v. United States, 442 F.3d 7, 19 (1st Cir. 2006). See id.
at 11, 19 (extortion); Skwira, 344 F.3d at 67-68, 74-75 (wrongful
- 17 -
ignorance of the facts, including an injury and its cause, and
ignorance of the law. See 444 U.S. at 122. As we explained in
McIntyre v. United States:
[T]he Court [in Kubrick] reasoned that a
claimant, once armed with knowledge of the
fact of injury and the identity of the parties
that caused the injury, is no longer at the
mercy of the [defendant(s)]. At that point,
claimants can go to others, such as doctors or
lawyers, who will tell them if they are
victims of malpractice. The same is not
necessarily true of plaintiffs who are
ignorant of the facts, particularly when the
[defendant(s)] may be in possession or control
of the necessary information.
367 F.3d 38, 52 (1st Cir. 2004) (citation omitted). Thus, a
plaintiff cannot plead ignorance of his or her legal rights to
delay accrual. Kubrick, 444 U.S. at 123-24.
In determining whether the facts necessary for a § 1983
plaintiff to file suit "are or should be apparent to a reasonably
prudent person similarly situated," Jardín de las Catalinas, 766
F.3d at 133 (quoting Nieves-Márquez, 353 F.3d at 119-20), we charge
the plaintiff with knowledge of two discrete, but related, sets of
data: (1) the "generally available information about the relevant
facts," and (2) "the likely results of any further inquiry that a
reasonable plaintiff, knowing these facts, would undertake,"
Donahue v. United States, 634 F.3d 615, 624 (1st Cir. 2011).
death); Attallah v. United States, 955 F.2d 776, 778, 780 (1st
Cir. 1992) (theft).
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Not all cases will require consideration of both sets of
information. In some cases, the generally available information
that alerted, or should have alerted, the plaintiff to both his or
her injury and its likely cause will come to light at some point
after the plaintiff suffered the injury but before the plaintiff
has undertaken any independent investigation or inquiry. This was
so in Skwira, in which we held that a wrongful death claim accrued
not at the time of the decedent's passing, but after autopsy
results were delivered to the decedent's family and the press had
published multiple stories detailing a government investigation
into similar deaths that had occurred in the same hospital where
the decedent had been treated. 344 F.3d at 80.
In other cases, the generally available information may
not be sufficient for accrual, but it may be sufficient to trigger
a suspicion in a reasonable person in the plaintiff's circumstances
regarding a putative defendant's role in causing the plaintiff's
injury. See McIntyre, 367 F.3d at 52 (explaining that "[a] claim
does not accrue when a person has a mere hunch, hint, suspicion,
or rumor of a claim, but such suspicions do give rise to a duty to
inquire into the possible existence of a claim in the exercise of
due diligence" (quoting Kronisch v. United States, 150 F.3d 112,
121 (2d Cir. 1998))). Under those circumstances, a plaintiff has
a duty to investigate or inquire further regarding his or her
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injury and the party responsible for causing it. See Donahue, 634
F.3d at 624; McIntyre, 367 F.3d at 52.
Our analysis of whether a plaintiff has a duty to inquire
employs an objective "reasonable person" standard but, at the same
time, it requires us to consider the circumstances of the plaintiff
and the context in which the alleged injury occurred. See
McIntyre, 367 F.3d at 52. In other words, the hypothetical
"reasonable person" must be "similarly situated" to the specific
plaintiff invoking the discovery rule and must have access to the
same information that was available to the plaintiff during the
timeframe relevant to the accrual analysis. See Cascone v. United
States, 370 F.3d 95, 104 (1st Cir. 2004).8
If, after considering all of the information available
to the plaintiff during that relevant timeframe, we conclude that
a duty to inquire has been established, we charge the plaintiff
with knowledge of the facts that the plaintiff should have
uncovered through a reasonably diligent investigation, and then
assess whether that information would be sufficient for purposes
of accrual. See McIntyre, 367 F.3d at 52. A claim will accrue at
8
For example, in Cascone, we held that a reasonable person,
similarly situated to the plaintiff, Nancy Cascone, would not have
had any reason to be suspicious about the circumstances of the
decedent's death because all of the information that might trigger
such a suspicion appeared in two regional newspapers outside of
the vicinity where Cascone lived. See 370 F.3d at 105 ("In these
circumstances, a plaintiff in Nancy Cascone's position could
reasonably be ignorant of the articles in those two newspapers.").
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the point during an investigation when a plaintiff, acting
diligently, obtained or would have obtained enough factual
information about his or her injury and its cause to file suit
against a defendant. See Rakes v. United States, 442 F.3d 7, 23
(1st Cir. 2006) (holding that if the plaintiffs had undertaken a
diligent investigation after their duty to inquire was triggered,
they would have discovered articles implicating the FBI in their
wrongful death action by the end of the year 1998, and thus their
claim accrued by late 1998). It is also at that point that the
statute of limitations begins to run.9
In some cases, however, we have found that even the most
diligent investigation would not have uncovered sufficient
information to allow a plaintiff to take action to preserve his or
her rights. In the past, we have reached this conclusion when a
defendant took steps to cover up its involvement or to keep
information about the plaintiff's injury and its cause
confidential. See McIntyre, 367 F.3d at 55-56 (holding that, even
assuming arguendo that the plaintiffs had a duty to inquire, their
claim would not have accrued during the relevant timeframe because
the necessary factual predicate for their claim "was hidden behind
a veil of secrecy"); Attallah v. United States, 955 F.2d 776, 780
(1st Cir. 1992) (holding that plaintiffs were entitled to a delayed
9Of course, in some cases, like this one, a tolling provision
will delay the running of the statutory period. See supra.
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accrual date where they had a duty to investigate the cause of the
death of their courier, but even a reasonably diligent
investigation -- which, in fact, the plaintiffs undertook -- would
not have revealed the predicate facts for their legal action).
As these cases illustrate, the existence of a duty to
inquire does not itself trigger accrual. A claim accrues only
when a plaintiff, through diligent investigation or inquiry,
uncovers or should have uncovered enough facts to take the
necessary steps to take legal action to preserve his or her rights.
Our case law has not always been a model of clarity
regarding this aspect of the discovery rule, perhaps due to our
use of the term "duty to inquire" (or similar formulations, like
"burden to inquire") to mean two different things. In many cases,
we have invoked the phrase to describe a putative plaintiff's
obligation to diligently investigate or "inquire" regarding the
factual predicate for his or her cause of action once a suspicion
or hunch has been triggered. See, e.g., Cascone, 370 F.3d at 104-
05; McIntyre, 367 F.3d at 52, 55-56. We adhere to this usage
throughout this opinion. The "duty to inquire" used in this sense
is a prelude to accrual.
However, in other cases, we have used the phrase to
describe the principle that a plaintiff, once armed with the
knowledge of his or her injury and its probable cause, cannot plead
ignorance of the law to delay accrual; rather, that plaintiff
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"bears the responsibility of inquiring among the medical and legal
communities" as to whether the facts already in his or her
possession, perhaps due to a diligent investigation already
undertaken, give rise to a viable legal theory. Gonzalez v. United
States, 284 F.3d 281, 289 (1st Cir. 2002) (emphasis added); see
also Callahan v. United States, 426 F.3d 444, 453-54 (1st Cir.
2005) (holding that claim accrued at point that "reasonable person
[would] inquire," specifically, "by seeking legal advice in order
to determine whether action should be taken against the government"
(emphasis added)). In these cases, accrual has already occurred
by the time a plaintiff makes an inquiry, and that inquiry is not
so much a "duty" as a prudent protective step to avoid running
afoul of the statute of limitations.
In summary, a § 1983 claim will accrue once a plaintiff
is armed with the necessary factual predicate to file suit,
including knowledge of both an injury and the injury's likely
causal connection with the putative defendant. Under certain
circumstances, this information will be apparent from the face of
things at the time of an injury, and the claim will accrue at that
point. In other cases, this information will only come to light
through the release of subsequent factual information that the
plaintiff learned or should have learned, even without the benefit
of an investigation. And in other cases still, the information
that comes to light will not give a putative plaintiff a "complete
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and present cause of action," but it will trigger enough of a
suspicion in a reasonable person, similarly situated to the
plaintiff, to cause that person to undertake a diligent
investigation or inquiry into the pertinent facts. In those
investigative scenarios, a claim will accrue at the point during
the investigation when sufficient facts are or should be uncovered
through the exercise of due diligence to give a plaintiff enough
information about his or her injury and its cause to file suit.
Regardless of how the predicate facts become (or should have
become) available to a putative plaintiff, the claim accrues at
that point, even if the plaintiff lacks knowledge of his or her
legal rights. And, subject to any tolling provision, the relevant
statute of limitations period will then begin to run.
Guided by these principles, we now turn to our analysis
of the accrual of Ouellette's claims.
C. Application of Accrual Analysis
1. Assessing Whether Ouellette Had a "Complete and Present
Cause of Action" at the Time of His Injury
The district court reasoned that Ouellette's "awareness
of his abuser's affiliation with the Biddeford Police Department
supplied [him] with enough information to lead a reasonable person
in his position to seek advice about a possible claim against
Defendants Beaupre and the City of Biddeford." See Ouellette,
2019 WL 4467633, at *4 (internal quotation marks omitted). In a
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footnote, the court clarified that, "given the nature of the
underlying claim, it is highly improbable that any [c]ourt would
have granted a motion to dismiss municipal and supervisory
liability claims had [Ouellette] advanced those claims at the
inception of a civil action within the limitations period." Id.
at *5 n.5. Taken together, these statements mean that, in the
district court's view, Ouellette's awareness of both his injury
and Gaudette's employment relationship with the BPD provided him
with a "complete and present cause of action" sufficient for him
to file a § 1983 suit against appellees within the six years after
he reached the age of majority, and that his failure to do so was
based exclusively on his ignorance of his legal rights. In other
words, if Ouellette had consulted a competent attorney shortly
after he was injured, that attorney would have advised him that he
was in a position to immediately file suit against Gaudette's
employer and supervisor because of Gaudette's relationship with
those defendants, and that he should do so promptly to comply with
the statute of limitations.
We disagree with this analysis. A constitutional
tortfeasor's employment with a municipality or supervision by a
superior state officer does not, on its own, give rise to a
"complete and present" § 1983 cause of action. It is well
established that the doctrine of respondeat superior, which
imposes vicarious liability on an employer for the torts of an
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employee undertaken in the course of his or her employment, does
not apply to § 1983. See, e.g., Ramírez-Lluveras v. Rivera-Merced,
759 F.3d 10, 19 (1st Cir. 2014) (collecting cases). Rather, a
§ 1983 claim premised on a theory of supervisory liability must
plead an "affirmative link between the behavior of a subordinate
and the action or inaction of his supervisor." Feliciano-Hernández
v. Pereira-Castillo, 663 F.3d 527, 533 (1st Cir. 2011) (quoting
Soto-Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011)).
Likewise, a § 1983 action brought against a municipality pursuant
to Monell v. Department of Social Services, 436 U.S. 658 (1978),
is proper only where the plaintiff pleads sufficient facts to
indicate the existence of an official municipal policy or custom
condoning the alleged constitutional violation. See Abdisamad v.
City of Lewiston, 960 F.3d 56, 60 (1st Cir. 2020).
Any knowledgeable attorney that Ouellette consulted
around the time of his alleged abuse would have told him of these
standards and would not have advised him to file a lawsuit against
Beaupre and the City of Biddeford in the absence of additional
information suggesting that they were also a cause of his injury.
Although there is no heightened pleading standard for § 1983
municipal liability claims, see Leatherman v. Tarrant Cnty.
Narcotics Intel. & Coordination Unit, 507 U.S. 163, 164 (1993), a
§ 1983 lawsuit against Beaupre and the City containing only a bare
recitation of the fact that Gaudette engaged in his abuse while on
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duty as a BPD officer would not likely survive a motion to dismiss.
Thus, Ouellette would not have the benefit of the discovery that
the district court suggests might have given him a chance of
uncovering facts like those he discovered in 2015, i.e.,
information directly implicating appellees in Gaudette's alleged
misconduct.
Significantly, roughly half of the sixty-three
paragraphs in the operative complaint in this case contain
information about the conduct and inaction of Chief Beaupre and
the City of Biddeford that Ouellette did not have at the time of
his injury in the late 1980s. For example, the complaint states:
Chief Roger Beaupre was given information
prior to Larry Ouellette’s abuse such that he
was aware of and/or should have been aware
that Norman Gaudette and at least one other
Biddeford Police Officer had been and were
sexually abusing young boys, including Larry
Ouellette. As Chief, Roger Beaupre turned a
blind eye and failed to prevent this abuse.
Chief Roger Beaupre's failure to act meant
that Norman Gaudette was able to sexually
assault Larry Ouellette.
Later, Ouellette's complaint specifically alleges:
Chief Beaupre engaged in a pattern of altering
BPD internal affairs policies and establishing
BPD policies that provided him with the
opportunity to control and manipulate BPD
policies to allow Officer Gaudette to remain
in his position during and after sexual abuse
allegations were made against Officer Gaudette
prior to the time that he sexually assaulted
Ouellette.
The complaint also states:
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Chief Beaupre also failed to provide mandatory
notification to the then-State of Maine
Department of Human Services ("DHS"), despite
his obligation to do so, of the sexual abuse
by Officer Gaudette. Had Chief Beaupre done
so, then DHS would have investigated Officer
Gaudette and that independent investigation
would have shown, prior to Ouellette's abuse
by Officer Gaudette, that Officer Gaudette had
abused minor boys through his position as an
officer of the BPD. Such an investigation
would have resulted in the separation of
Officer Gaudette from the BPD prior to the
time that Officer Gaudette, using his position
as an officer of the BPD, molested Ouellette.
These detailed allegations, reflecting information that
became available to Ouellette for the first time in 2015, present
the kind of assertions of causation that we have typically found
necessary to state a claim for supervisory or municipal liability.
See, e.g., Sanchez v. Pereira-Castillo, 590 F.3d 31, 50-51 (1st
Cir. 2009) (holding that plaintiff stated a Fourth Amendment claim
pursuant to § 1983 against sergeant of correctional facility
because the plaintiff "specifically allege[d]" the acts by the
sergeant that "set in motion" the chain of events leading to a
constitutional violation).
The need for a plaintiff to plead more than just an
employment relationship to hold a supervisor or municipality
liable for the constitutional torts of an employee, and to file a
lawsuit to stop the running of the statute of limitations,
distinguishes § 1983 claims from FTCA claims, which have produced
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much of our federal discovery rule jurisprudence. Accordingly,
the district court's reliance on our FTCA cases was misplaced in
these particular regards. See Ouellette, 2019 WL 4467633, at *4
(citing our FTCA decisions in Skwira, 344 F.3d at 84 (Boudin, C.J.,
concurring), and Donahue, 634 F.3d at 626). The FTCA, unlike
§ 1983, "[i]n substance . . . adopts respondeat superior liability
for the United States." Solis-Alarcón v. United States, 662 F.3d
577, 583 (1st Cir. 2011). Thus, in order to file an FTCA suit
against the federal government, a plaintiff must merely
demonstrate that he or she was the victim of a "negligent or
wrongful act or omission of any employee of the Government while
acting within the scope of his office or employment." 28 U.S.C.
§ 1346(b)(1).
Moreover, unlike § 1983, the FTCA does not even require
the filing of a lawsuit to comply with the statute of limitations.
See Morales-Melecio v. United States, 890 F.3d 361, 369-70 (1st
Cir. 2018). For a putative plaintiff to preserve his or her legal
rights in the context of the FTCA, he or she must merely file an
administrative claim indicating: "(1) sufficient information for
the agency to investigate the claims, and (2) the amount of damages
sought." Skwira, 344 F.3d at 70 (quoting Santiago-Ramirez v. Sec'y
of Dep't of Def., 984 F.2d 16, 19 (1st Cir. 1993)). The Department
of Justice has created a standardized form, just two pages long,
to facilitate the filing of such claims pursuant to the FTCA's
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notice requirement. See id.; see also Donahue, 634 F.3d at 627
(explaining that "[f]iling [an administrative] claim puts at most
a modest burden on plaintiffs"). In contrast, as we have
discussed, a plaintiff must file suit to preserve his or her rights
in the context of § 1983. This distinction, blurred by the
district court's analysis, is critical for analyzing accrual in
the context of § 1983.
In light of these considerations, we hold that the
district court erred in concluding that Ouellette's § 1983 claims
against appellees accrued at the time of his injury in the late
1980s because of his undisputed knowledge of Gaudette's
affiliation with the BPD. In the context of § 1983, knowledge of
a constitutional tortfeasor's employer and supervisor does not
necessarily equate to knowledge of a causal connection between the
tort and the employer and supervisor.
2. Assessing Whether Ouellette Had a Duty to Investigate
Prior to 2015
We must next consider the district court's alternative
holding -- that Gaudette's employment relationship with the BPD,
even if insufficient for accrual at the time of his injury, was
still sufficient as a matter of law to trigger a duty to
investigate whether the City of Biddeford and Chief Beaupre were
at least partially responsible for causing his alleged injury.
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Our analysis begins with the generally available
information regarding Beaupre and the City of Biddeford's alleged
deliberate indifference to sexual abuse by Gaudette. As appellees
acknowledge, such information was non-existent prior to 2015. None
of the other victims of abuse allegedly committed by Gaudette and
other BPD officers went public with their stories, and there was
no media coverage or public outcry regarding the BPD and Beaupre's
alleged custom of condoning or covering up sexual abuse by BPD
officers.
As for the specific information available to Ouellette
regarding the BPD and Beaupre's role in his alleged abuse,
Ouellette knew that Gaudette was a captain in the BPD -- indeed,
he occasionally met Gaudette at the police station, and Gaudette
frequently left his police radio on while he allegedly engaged in
sex acts with Ouellette. He also knew that Gaudette, on at least
two occasions, used his position as a BPD officer to help Ouellette
overcome legal trouble. He knew that after he reported Gaudette's
conduct to the BPD, the BPD and the State Attorney General's Office
initiated investigations into Gaudette.10 And he knew, or should
10 Although Ouellette claims that he did not know about the
Internal Affairs investigation -- an account that appellees
dispute -- he remembers speaking with multiple BPD officers
regarding his abuse. He also remembers meeting with Michael Pulire
and various investigators from the Maine Attorney General's Office
and telling them about his experiences with Gaudette.
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have known, that Gaudette was reinstated to his leadership position
in the BPD after being accused of sexually abusing him.
Although a reasonable jury might plausibly conclude
that, based on this information, someone in Ouellette's position
should have become suspicious of deliberate indifference by the
BPD, such a finding is not inevitable on the record before us. In
reaching a different conclusion, the district court, once again,
simply relied on Gaudette's affiliation with the BPD to conclude,
as a matter of law, that Ouellette should have been suspicious
that the City and Beaupre might be liable for causing his injury
and should have investigated accordingly. See Ouellette, 2019 WL
4467633, at *4-5. This was error.
There is no evidence in the record that Ouellette was
ever told that the investigations into Gaudette's misconduct were
provoked by allegations against Gaudette brought by additional
victims, or that there was a separate investigation into the BPD
on a larger scale regarding a pattern of sexual abuse by its
officers. The fact that Gaudette was a captain in the BPD and may
have used that role to take advantage of Ouellette hardly supports
the inference that Gaudette's higher-ups condoned his conduct, or
even knew about it. Indeed, to Ouellette's knowledge, no BPD
official ever learned that Gaudette had sexually abused a minor
until the day that Ouellette came forward. Moreover, when he did
report his abuse to the BPD, several officers followed up with
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him, and that report, at the behest of the BPD, triggered an
external investigation by the York County District Attorney's
Office and, subsequently, the Maine Attorney General's Office.
In these circumstances, we think a jury could reasonably
find that a reasonable person would believe that the BPD took the
allegations seriously and conducted an appropriate investigation.
In so concluding, we do not pass judgment on the adequacy of the
BPD's investigation into Ouellette's allegations of abuse.
Rather, we simply note that, based on the information available to
Ouellette in the early 1990s regarding the BPD's investigation, a
jury could reasonably find that a reasonable person in Ouellette's
shoes would have no reason to suspect that the BPD was not doing
its job, or worse, that it was covering up Gaudette's conduct.
Accordingly, a reasonable jury could conclude that Ouellette had
no duty before 2015 to do more to ascertain appellees' possible
role in his abuse.
We thus hold that the district court erred in concluding
that information available to Ouellette prior to 2015 necessarily
triggered a duty to inquire into claims against appellees.11
11
We disagree with Ouellette's contention that the district
court improperly resolved material factual disputes related to the
duty-to-inquire question. The district court's error was not that
it improperly chose between competing facts in the record --
indeed, the facts that the district court relied upon for its
summary judgment ruling are undisputed. Its error was the
conclusion that it drew from those facts, i.e., that the only
conclusion that a reasonable jury could reach is that Ouellete had
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3. Reasonably Diligent Investigation
In light of its erroneous conclusion as a matter of law
that Ouellette had a duty to investigate whether the BPD and
Beaupre were responsible for his injury at the time that it
allegedly occurred, the district court went on to address the
second component of the accrual analysis -- namely, assessing the
scope of a reasonably diligent investigation under the
circumstances and the contents of the information that such an
investigation would have uncovered. The district court also erred
in that analysis.
The district court suggested that a diligent
investigation into claims against the City of Biddeford and Chief
Beaupre simply required hiring an attorney and filing suit against
Gaudette in his individual capacity, and then conducting discovery
for documents related to appellees' facilitation of Gaudette's
alleged misconduct. See Ouellette, 2019 WL 4467633, at *5 ("Here,
for example, Plaintiff could have consulted an attorney, initiated
a civil action against Gaudette, conducted discovery for records
concerning any history of reports of similar conduct in the past,
a duty to inquire further into the BPD's role in his alleged abuse
as soon as he became aware of both his injury and Gaudette's
employment relationship with the BPD. See Villarini Garcia, 8
F.3d at 87 ("[E]ven where no raw facts are in dispute, the issues
of due diligence and adequate knowledge are still ones for the
jury so long as the outcome is within the range where reasonable
men and women can differ.").
- 34 -
taken appropriate depositions and amended his complaint to pursue
supervisory and municipal claims."). We disagree.
Perhaps a reasonable jury could find that Ouellette
should have consulted an attorney or other professional to assist
him in investigating potential claims against appellees. But the
same jury could easily conclude that even the most conscientious
lay person would not reasonably think that a diligent investigation
requires filing a lawsuit against one party to gain access to the
tools of civil discovery for the purpose of uncovering information
regarding other possible parties. Cf. Ortega Candelaria v.
Orthobiologics LLC, 661 F.3d 675, 681 (1st Cir. 2011) ("The
diligence required for equitable tolling purposes is reasonable
diligence, not maximum feasible diligence." (quoting Holland v.
Florida, 560 U.S. 631, 653 (2010)).
Accordingly, we decline to hold as a matter of law that
a putative plaintiff must file a lawsuit and undertake civil
discovery -- a very expensive step -- to satisfy the demands of
due diligence. Such a holding would, in effect, apply the statute
of limitations for a plaintiff's § 1983 claim against a known
individual state actor to any as yet unknown future claims against
different government employees or entities subject to distinct
theories of liability. Moreover, it might also encourage putative
plaintiffs to file lawsuits that would effectively function as
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fishing expeditions that could potentially run afoul of the rules
governing discovery in civil actions.12
We also reject the district court's conclusion that
Ouellette would have discovered facts implicating the BPD in
Gaudette's alleged misconduct if he had timely filed suit against
Gaudette. It is far from certain that permissible discovery in
such a case would aid his investigation into the City and Beaupre.
This uncertainty is only heightened by the fact that the record
contains at least some undisputed evidence suggesting that the BPD
did not appropriately maintain files containing even the reported
allegations against Gaudette. See supra note 5. We thus disagree
with the district court that a reasonably diligent investigation
would have necessarily provided Ouellette with a "complete and
present cause of action" prior to 2015.
III.
As an alternative argument, appellees assert that, under
our precedents, Ouellette's § 1983 claims against them must be
dismissed because his § 1983 claim against Gaudette is time-
barred.13 Notably, Ouellette has conceded that his § 1983 claim
12 Federal Rule of Civil Procedure 26(b)(1) provides that
"[p]arties may obtain discovery regarding any nonprivileged matter
that is relevant to any party's claim or defense and proportional
to the needs of the case."
13Although the district court did not decide the case on this
ground, appellees preserved the argument in their briefing before
the district court, and we may affirm on any basis supported by
the record. See López-Santos v. Metro. Sec. Servs., 967 F.3d 7,
- 36 -
against Gaudette accrued at the time of his injury, and thus that
the statute of limitations expired six years after he reached the
age of majority. For this reason, he voluntarily dismissed that
claim against Gaudette in the early stages of this litigation.
See supra Section I.B.
It is well established that, without a finding of a
constitutional violation on the part of a municipal employee, there
cannot be a finding of § 1983 liability on the part of a supervisor
or municipality. See, e.g., Martinez v. Colon, 54 F.3d 980, 990
(1st Cir. 1995) (supervisory liability); Evans v. Avery, 100 F.3d
1033, 1040 (1st Cir. 1996) (municipal liability). However,
contrary to appellees' assertion, we have never held that the
dismissal of a § 1983 claim against an individual officer on the
basis of the statute of limitations compels dismissal of timely
supervisory and municipal liability claims premised on that
officer's alleged constitutional violations.14
13 (1st Cir. 2020).
14
Appellees erroneously suggest that we reached such a
conclusion in Nieves v. McSweeney, 241 F.3d 46 (1st Cir. 2001).
Although we held in Nieves that the appellants' supervisory and
municipal claims were time-barred, given that the appellants'
claims against the individual tortfeasors were time-barred, that
was so only because there was no dispute that the claims against
all the defendants accrued at the same time. See id. at 50-53.
We thus did not comment on a situation, like the one presented
here, in which a plaintiff asserts that the supervisory and
municipal claims accrued at a later date than those brought
directly against the individual tortfeasor.
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Indeed, in Wilson v. Town of Mendon, we explicitly held
that "[t]here is . . . nothing to prevent a plaintiff from
foregoing the naming of an individual officer as a defendant and
proceeding directly to trial against the municipality." 294 F.3d
1, 7 (1st Cir. 2002). In reaching that conclusion, we rejected
the argument that such a scenario would require a court to
adjudicate the rights of an individual not before it. See id. at
8. Rather, we held that, for a plaintiff to prevail under such
circumstances, a jury would merely have to make "a factual finding
regarding the implications of [the individual officer's] conduct
for the possible liability of the [municipality] as her employer."
Id.
In this case, if Ouellette is to prevail on his § 1983
claims against appellees, he will have to convince a jury to make
a preliminary factual finding that Gaudette violated his
constitutional rights. Of course, that finding will not be binding
on Gaudette or subject him to damages liability, given that the
constitutional claims against him are barred by the statute of
limitations.15 See id. (noting that the appellant "was not seeking
15
We recognize that there may be "a visceral unease" at the
idea that Gaudette's actions could be "the subject of a jury's
condemnation" in a case to which he is not a party. Wilson, 294
F.3d at 8 n.17. But, as we explained in Wilson, our law permits
such scenarios: "[u]nindicted co-conspirators are frequently the
subject of adverse jury findings, as are employees whose employers
are sued directly on a theory of respondeat superior for their
alleged torts." Id. Moreover, Ouellette still has a live state
- 38 -
an adjudication of [the individual officer's] rights, nor a
judgment binding on her personally"). Rather, such a finding will
merely establish the possibility that appellees may be held
responsible for Gaudette's allegedly unconstitutional conduct
under Ouellette's theory of deliberate indifference.
IV.
The district court erred in concluding as a matter of
law that Ouellette's § 1983 claims against appellees accrued at
the time of his injury in the late 1980s exclusively because
Ouellette was aware of Gaudette's affiliation with the BPD.
Moreover, a reasonable jury could find that Ouellette had no duty
to diligently investigate his claims against appellees prior to
2015, when the social media posts and press coverage first
publicized Chief Beaupre and the City of Biddeford's alleged
deliberate indifference to the sexual abuse of minors by BPD
officers, thus alerting Ouellette that their actions or inaction
may have also been a cause of his injury. Accordingly, the
district court erred in withdrawing this duty-to-investigate
question from the jury and concluding that Ouellette's lawsuit,
filed less than a year after those social media posts were
law sexual assault claim against Gaudette, which might well be
adjudicated in the same trial as his § 1983 claims against Beaupre
and the City of Biddeford. (In Maine, there is no statute of
limitations for civil claims "based upon sexual acts toward
minors." See Me. Stat. tit. 14, § 752-C(1).)
- 39 -
publicized in October 2015, was time-barred. Finally, the district
court erred in concluding that, if Ouellette had undertaken a
diligent investigation of his claims subsequent to his injury, he
necessarily would have uncovered sufficient factual information to
file suit against Beaupre and the City prior to the expiration of
the statute of limitations in June 1995.
We vacate the grant of summary judgment and remand for
further proceedings consistent with this opinion. Costs are
awarded to appellant.
So ordered.
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