(
STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss. CIVIL ACTION DKT. NO. CV-18-470
KENNETH CAPRON,
Plaintiff,
V. ORDER
MAINE DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant. .Pfi=c~:-: r,u~:::, i~:_r, E.K!.~S ~~~ :J=Tf: i ~ ~? 1 .AMF: ~tt
Before the Court is a. motion by defendant Maine Department of Health and Human
Services for summary judgment on Kenneth Capron's complaint alleging public acconunodation
discrimination against the Department .under the Maine Human Rights Act (MHRA), 5 M.R.S. §
4592, and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101- 12213.
Like many cases, this case has been delayed by the pandemic. The deadline for dispositive
motions 'was March 30, 2020 but that deadline was extended under the various pandemic orders.
The Department filed its motion on May 1 and briefing was completed in mid-August. Since then
· the court has had almost no time to devote to civil proceedings due to the pandemic and the need
to focus on criminal cases. The lengthy submissions in the file have also delayed the court's ability
to review and decide the motion.
The court has now considered the parties' briefs, their statements of material fact, and the
summary judgment record, which includes 375 pages of documents submitted by Mr. Capron
along with his affidavit and Rule 56(h)(2) statement in opposition to the Department's motion.
Because a motion for summary judgment is decided based solely on the summary judgment record,
the court did not hold oral argument.
1 Summary Judgment Standard
Summary judgment should be granted ifthere is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law. "A material fact is one that can affect
the outcome of the case, and there is a genuine issue when there is sufficient evidence for a fact
finder to choose between competing versions of the fact." Lougee Conservancy v. CitiMortgage,
Inc., 2012 ME 103, 11, 48 A.3d 774.
In considering a motion for summary judgment, the court is required to consider only the
portions of the record referred to and the material facts set forth in the parties' Rule 56(h)
statements. E.g., Mahar v. Stone Wood Transport, 2003 ME 63, 8, 823 A.2d 540. The facts must
be considered in the light most favorable to the non-moving party. See Cormier v. Genesis
Healthcare LLC, 2015 ME 161, 7, 129 A.3d 944. Thus, for purposes of summary judgment, any
factual disputes must be resolved against the movant. Nevertheless, when the facts offered by a
party in opposition to summary judgment would not, if offered at trial, be sufficient to withstand
a motion for judgment as a matter of law, summary judgment should be granted. Kenny v.
Department ofHuman Services, 1999 ME 158, 3, 740 A.2d 560.
Summary Judgment Submissions in This Case
The paiiies have appended to their summary judgment submissions and have relied on
emails that were exchanged between Mr. Capron and DHHS and certain DHHS internal emails
concerning Mr. Capron's requests. No objection has been raised by either party to the authenticity
2 of those emails or to their admissibility. 1
However, the court's task in determining whether there are genuine issues of material fact
precluding summary judgment has not been facilitated by the Mr. Capron's submissions. First,
there is the sheer number of documents that he has submitted, the relevance of many of which to
the issues before the court is not explained.
Second, Mr. Capron's memorandum of law in response to the motion for summary
judgment does not cite to his Rule 56(h)(2) statement, which makes it difficult to tease out the
import of the 375 pages of documentation he submitted and how those aspects of the record relate
to his arguments. His response to the motion for summary judgment also appears to include some
factual assertions that are not contained in his Rule 56(h)(2) statement and therefore cannot be
considered by the court.
Third, many of the assertions in his opposing statement of material facts, in his statement
of additional material facts, and in his affidavit consist of legal conclusions and legal argument
that do not properly belong in an affidavit or a Rule 56(h) statement. See Kitchen v. City ofCalais,
666 A.2d 77, 79 (Me. 1995); Town a/Orient v. Dwyer, 490 A.2d 660,662 (Me. 1985).
The comi is aware that Mr. Capron is representing himself. Self-represented litigants are
not entitled to special consideration and are required to comply with the rules applicable to
summary judgment the same as any other party. E.g., Dumont v. Fleet Bank, 2000 ME 197,r 13,
760 A.2d 1049. The court also understands that Mr. Capron is an individual with disabilities, and
its decision below is not based on any technical noncompliance by Mr. Capron with summary
judgment procedure.
1 Most of those emails have Bates stamp numbers, e.g., "DHHS 000167," and in referring to emails, the court will identify them by date and will also list the Bates stamp number. References to documents submitted by Mr. Capron without any Bates stamp will be referred to by page number, e.g., "Capron 61."
3 Mr. Capron's complaint alleges that the Department discriminated against him when it
denied a request he made in April 2016 for what he characterized as reasonable accommodations
in light of his dementia. The specific accommodations he requested included monthly meetings
with officials in the Department's Office of Aging and Disability Services (OADS), a written
followup after each of those meetings, and a written acknowledgement of each email sent to the
Department's Acting Commissioner. See Complaint 1113-20.
While the Department's motion focuses on the facts surrounding those requests, Mr.
Capron has responded by raising a lengthy history of his dealings with the Department, which
include various complaints about other aspects of his treatment by the Department. Mr. Capron
contends that his history with the Department reflects "a pattern of discrimination that continues
today." Plaintiffs Response to Defendant's Motion for Summary Judgment dated July 31, 2020
at 3.
As set forth in the court's March 2, 2020 order, many of Mr. Capron' s complaints involve
actions as to which any claim of discrimination would be time-barred,2 and the court has already
ruled that the continuing violation doctrine is not applicable in this case. See Order dated March
2, 2020 11 2-3. Other of Mr. Capron's complaints involve actions by the Department that Mr.
Capron now claims were retaliatory. However, Mr. Capron previously stated on the record that he
is not pursuing a retaliation claim. See Order dated March 2, 2020 1 4. The court will therefore
focus on the specific facts relating to the claim set forth in the complaint that Mr. Capron was
denied certain reasonable accommodations.
2 Mr. Capron filed his complaint before the Maine Human Rights Commission on July 18, 2016. Under 5 M.R.S. § 4611, complaints must be filed with the Commission within 300 days of the alleged act of unlawful discrimination.
4 Summary Judgment Record
Mr. Capron is a person diagnosed with several medical and cognitive disabilities referred
to generally as "dementia." These cognitive disabilities prompted him to serve as the volunteer
Executive Director of Memory Works, which is an organization that provides free services to
people with dementia. MemoryWorks hosts what Mr. Capron terms "Memory Cafes," which he
describes as "informal gatherings when people impacted by dementia could gather without stigma
to share experiences and wisdom and to support each other as able." Capron Affidavit~ 1.
In his role as volunteer Executive Director of MemoryWorks, Mr. Capron has been
responsible for carrying out its mission statement, which makes it necessary for him to seek
information from DHHS staff, particularly the Department's Office of Aging and Disability
Services (OADS) with respect to OADS programs as well as Department, State, and Federal rules,
regulations, and statutes. From at least 2014 Mr. Capron has had interactions with officials at
DHHS on various subjects. Some of those involved whether Memory\Vorks could contract with
DHHS as a provider of services or could receive grants to hold conferences and events. Many of
those concerned complaints he made about the implementation by DHHS of programs for the
aging and allegations he made of fraud and/or mismanagement with respect to those programs.
Ricker Hamilton was the Deputy Commissioner ofDHHS in 2016. Gary Wolcott was the
Director of OADS in 2016. OADS is an office within the Department that supports older and
disabled adults by providing adult protective, brain injury, intellectual and developmental
disability, long-term care, and aging community services to the people of Maine.
In order to receive the healthcare and social services offered by the Department, including
OADS, individuals must apply and meet certain eligibility criteria. The Department contracts
5 either through a Request for Proposal process or by a sole source contract - with third-party
agencies and providers to distribute these services to its clients. During 2016 neither Mr. Capron
nor MemoryWorks held a contract with the Department to provide direct services to consumers of
the Department's benefits, services, or programs. Mr. Capron inquired via email in 2015 about
becoming a Social Adult Daycare and how to access Respite Care, but he never became a contract
or paid provider of either function. Nor was Mr. Capron a client of OADS or the Department
generally, meaning that he did not apply for or receive services from any of the Department's
offices or programs.
In his Rule 56(h)(2) statement, Mr. Capron largely disputes the Department's assertions in
the preceding paragraph, but the Department's statements are properly supported, and Mr.
Capron' s qualifications and denials do not controvert the substance of the Department's assertions.
See Doyle v. Department ofHuman Services, 2003 ME 61 ~ 11 & n.4, 824 A.2d 48. Instead, Mr.
Capron's attempted qualifications and denials of the facts in the preceding paragraph highlight one
of the key difference in the parties' characterizations of the relationship between Mr. Capron and
the Department. Mr. Capron does not actually dispute that he was not receiving healthcare or social
services from the Department, nor does he dispute that he was not a contract provider of services
with the Department.
Rather, Mr. Capron views his relationship with the Department and OADS as someone
who, as the operator of a nonprofit that helps persons for whom the Department administers
services, sought administrative and informational services from the Department. He refers to
himself as a "provider" within the meaning of the Department's regulations even though he does
not have a contract with the Department. 3 He appears to have participated in some stakeholder
3 Mr. Capron cites the definition of provider in 10-149 C.M.R. ch. 5, § 63.01 (GG) as any entity who offers or plans to offer in-home or community suppmi setvices. However, "in-home or community support
6 meetings, and he has frequently raised objections and criticisms of the programs run by OADS
and has also filed a number of FOAA requests.
Whether Mr. Capron has sent an inordinate number of emails to DHHS over the years is
disputed, but the record reflects that he has sent DHHS more than a few emails. One of those was
on December 31, 2015 (DHHS 000167), when Mr. Capron sent an email to Deputy Commissioner
Hamilton that reiterated certain of his criticisms of OADS programs, particularly with respect to
certain waivers provided to Area Agencies on Aging (AAA waivers). Mr. Capron refers to himself
in that email as "a citizen and an advocate."
The following day, on January 1, 2016, Deputy Commissioner Hamilton emailed Mr.
Capron offering to meet with him, stating that the DHHS responses to Mr. Capron's previous
emails had not been effective and that he wanted "to change how we address your concerns, FOAA
requests, complaints, and allegations" in the hope that the parties could move forward in a more
productive and collaborative marmer. (DHHS 000166). 4
Prior to the meeting, Mr. Capron forwarded a list of topics he wished to discuss. Some of
those involved MemoryWorks and whether it could qualify as a respite care provider or obtain
grant funds for conferences. At the same time, Mr. Capron asked for a separate meeting to discuss
AAA waivers, again referring to himself as a citizen and advocate and stating that unless there was
a separate meeting relating to waivers, he would proceed "as though OADS is an adverse or hostile
component of the multi,decade failure to enforce the Department rules." (DHHS 000400). Deputy
services" is defined as a state funded program conducted by providers operating under state-funded contracts. I0-149 C.M.R. ch. 5, § 63.0l(A). As Mr. Capron concedes, neither he nor MemoryWorks have contracted with the Depaitment to provide services nor are any of the services they provide funded by the state. 4 Behind the scenes, however, Deputy Commissioner Hamilton displayed impatience with Mr. Capron, emphasizing in internal emails that he only intended to meet with Mr. Capron once.
7 Commissioner Hamilton declined a separate meeting.
In late March 2016 DHHS held a stakeholders meeting on Home and Community Based
Services (HCBS). Mr. Capron contends that he was excluded from that meeting and from similar
meetings. He has not offered any evidence substantiating his exclusion, and DHHS has offered
evidence that notice of all public meetings of that nature was posted on its website and that Mr.
Capron would have been free to attend.
Deputy Commissioner Hamilton and Director Gary Wolcott met with Mr. Capron on April
1, 2016. The tenor of the meeting is subject to dispute. In their affidavits Hamilton and Wolcott
state that the meeting devolved into personal attacks by Mr. Capron. Mr. Capron, in contrast, while
aclmowledging that "aggressive posturing occurred by both parties,"5 asserts that Wolcott stated
at the end of the meeting that the meeting had been productive.
At the end of the meeting Mr. Capron requested to meet monthly with OADS. Director
Wolcott suggested bi-monthly meetings, which Mr. Capron declined. 6 On April 2 Mr. Capron sent
an email to Deputy Commissioner Hamilton (DHHS 000470-71; Capron 61) stating that based on
his disability - specifically involving his memory retention and anxiety issues - he was asking for
monthly meetings with OADS, which he characterized as one of several reasonable
accommodations. Another accommodation he requested was to receive a written followup of all
future meetings, which he said had been agreed at an early meeting with DHHS staff, to ascertain
that both parties had heard the same message. Although Deputy Commissioner Hamilton had
complained that he had been sending too many emails, Mr. Capron stated he needed to keep
sending emails on issues as they arose. As a final reasonable accommodation, Mr. Capron
5 Plaintiffs Statement of Additional Material Facts 'if 89. 6 In his affidavit, Wolcott says bi-monthly meetings were offered as a courtesy at that time.
8 requested written acknowledgment of any emails he sent.
Deputy Commissioner Hamilton forwarded Mr. Capron' s request for accommodations to
Kate Wentworth, the DHHS EEO Coordinator responsible for ADA issues. On April 21, 2016 Ms.
Wentworth wrote to Mr. Capron offering him the option of emailing his concerns or questions to
the Department through Scott Perkins, the Department's Constituent Services Coordinator, who
would forward the concerns to appropriate personnel for resolution. Ms. Wentworth explained
that Mr. Perkins would confirm receipt of Mr. Capron's communications and that Mr. Capron's
questions and concerns would be reviewed by an appropriate team of professionals in the
Department. Once appropriate Department personnel had the opportunity to review Mr. Capron's
concerns, they would respond to Mr. Capron via email or letter.
In his opposition to the motion for summary judgment, Mr. Capron notes that his April 2
request sought monthly meetings with "OADS," not with Deputy Commissioner Hamilton or
Director Wolcott specifically. However, several of Mr. Capron's requests were to meet or
communicate directly with Hamilton or Wolcott. When Mr. Capron rejected Ms. Wentworth's
proposal on May 1, he stated that "I need more direct and timely communications from subject
matter experts at DHHS. That includes Ricker Hamilton, Gary Wolcott, Nick Adolphsen, Debra
Halm and such." (DHHS 000530). Subsequently, on June 3, 2016, Mr. Capron emailed Deputy
Commissioner Hamilton and Director Wolcott with copies to Ms. Wentworth and DHHS counsel
Kevin Wells (DHHS 000581), stating, "I have not agreed to your proposed accommodations and
do not intend to" but also stating that he needed "time with Ricker and with Gary" to address
certain issues. That email also stated that he had filed a complaint with the Maine Human Rights
Commission7 and complained that he had not even gotten the bi-monthly meetings offered by
7 It appears that a complaint was actually not filed with the MHRC until July I8.
9 Director Wolcott at the April 1 meeting.
Relations between DHHS and Mr. Capron deteriorated from there. By the end of June Mr.
Capron was sending accusatory emails to Deputy Commissioner Hamilton telling him to step down
and accusing him of lying and mismanagement, and Hamilton was declining to respond. (DHHS
000665, 000667).
DHHS has offered evidence that DHHS staff did not offer regular individual meetings on
a monthly or bi-monthly schedule to clients, providers, or members of the general public during
2016 and that neither Deputy Commissioner Hamilton nor Director Wolcott met regularly with
any one provider, organization, or constituent. Defendant's Rule 56(h)(l) Statement'i['i[ 23, 24. Mr.
Capron disputes these assertions although most of the contt·ary evidence he offers is either
inadmissible hearsay or his own unfounded conjecture. He has submitted one additional item of
evidence - a DHHS announcement issued in June 2018 which stated that DHHS was changing its
system of meeting with stakeholders. This document is not from the 2016 time period, and it is
evident from the additional documents submitted by Mr. Capron that the stakeholder meetings
referred to in the June 2018 announcement were not individual meetings with stakeholders but
were group meetings open to stakeholders on a regional basis. Capron 323-25.
On July 18, 2016 Mr. Capron filed a complaint with the Maine Human Rights Commission
alleging that DHHS had discriminated against him on the basis of his disability, including the
claim that DHHS had not offered him the reasonable accommodations he had requested. On July
24, 2018 the MHRC dismissed his complaint, finding no reasonable grounds to believe that
unlawful discrimination had occurred. Capron 339. Mr. Capron then commenced this action.
10 Discussion
Mr. Capron contends the Department discriminated against him on the basis of his
disability under both the MHRA and the ADA. Although he has asserted causes of action under
five sections of the MHRA, the provisions of the MHRA that are pertinent to his claims are 5
M.R.S. § 4592(\)(B) and§ 4592(1)(E). The former provides that unlawful discrimination includes
"a failure to make reasonable modifications in policies, practices or procedures" when necessary
to afford services or accommodations to individuals with disabilities. The latter provides that
unlawful discrimination includes the exclusion of "a qualified individual with a disability, by
reason of that disability . . . from participation in or being denied the services, programs, or
activities of a public entity ... "
The ADA in turn provides in almost identical language that "no qualified individual with
a disability shall, by reason of such disability, be excluded from participation in or be denied the
benefits of the services, programs, or activities of a public entity, or be subjected to discrimination
by any such entity." 42 U.S.C. § 12132. Regulations under the ADA further provide that public
entities "shall make reasonable modifications in policies, practices, or procedures when the
modifications are necessary to avoid discrimination on the basis of disability, unless the public
entity can demonstrate that making the modifications would fundamentally alter the nature of the
service, program, or activity." 28 C.F.R. § 35.130(b)(7). 8
For purposes of its motion for summary judgment, DHHS does not dispute that Mr. Capron
is a qualified individual with a disability. Accordingly, the first issue in this case is whether
8 In this case the term "reasonable accommodation," derived from regulations under the Rehabilitation Act,
29 U.S.C § 794, has been used by the parties rather than "reasonable modification." There is no material difference between the terms. Nunes v. Massachusetts Dept. ofCorrections, 766 F.3d 138, 154 n.6 (1st Cir 2014).
11 meetings with officials of DHHS or OADS, as requested by Mr. Capron, constitute a "service,
program, or activity" ofDHHS as a public entity. Neither Mr. Capron nor Memory Works receives
direct services from DHHS nor do they qualify as providers. 9 However, the scope of "services,
programs, and activities" has been broadly construed. See Geness v. Admin. Office ofPa. Courts,
974 F.3d 263, 277 (3d Cir. 2020). At a minimum, Mr. Capron falls within the category of an
interested party - a stakeholder if you will - with respect to the activities of the Department
regarding the elderly and persons with dementia. DHHS interacts with stakeholders, and DHHS
does not contend that it could choose to deny a person the status of a stakeholder because that
person was disabled.
However, DHHS has offered evidence that it.did not offer regular individual meetings with
stakeholders. The ADA generally requires proof that a disabled person has been denied some
benefit that a public entity has extended to nondisabled people .... " Disability Rights NJ, Inc.
v. Commissioner, NJ Department ofHuman Services, 796 F.3d 293, 306 (3d Cir. 201 S)(emphasis
added). In this case Mr. ·capron has not demonstrated that the regular individual meetings he
sought were available to other parties.
More importantly, DHHS has offered evidence that it declined Mr. Capron's requests for
regular individual meetings because it concluded that such meetings were not necessary for either
Mr. Capron or for the Department. Defendant's Rule 56(h)(l) Statement ,i,i 22, 32. Nowhere in
Mr. Capron's opposition to the Department's motion does he offer evidence supporting his claim
that regular individual meetings with OADS - as opposed to the email responses offered by DHHS
- were needed to address the memory retention and anxiety limitations that he cited as resulting
9 Although Mr. Capron has inquired whether MemoryWorks could qualify as a respite care .provider or receive grants, he does not allege that he or MemoryWorks have wrongfully been denied provider status or have wrongfully been denied any grants.
12 from his disability. The court takes no position on whether the various criticisms of OADS made
by Mr. Capron were valid or invalid. However, the record demonstrates that the primary reason
Mr. Capron requested meetings is that he wanted to be able to convey those criticisms and his
other views - in many instances to Deputy Commissioner Hamilton and other high-ranking
officials - in person. The record demonstrates that Mr. Capron was fully capable of forcefully and
cogently expressing his views in the emails he sent to the Department and in responding to the
emails he received from the Department. To the extent that he may have believed his views and
criticisms would have greater effect if delivered in person, that is not a reason that was based on
any need to accommodate his disability.
To resist a motion for summary judgment, a plaintiff must establish at least a prima facie
case for every element of his case that is challenged on a motion for summary judgment. See, e.g.,
Corey v. Norman Hanson & DeTroy, 1999 ME 196 ,i 9, 742 A.2d 933. In this case Mr. Capron has
not demonstrated that there is a genuine issue for trial on whether the meetings he requested were
needed to assist him in overcoming any limitations imposed by his disability.
In this connection, Mr. Capron's request for regular individual meetings is the controlling
issue. Ifhe has not shown that such meetings were needed as a reasonable accommodation to avoid
discrimination against him on the basis of his disability, his request for written followup
memorializing such meetings is moot. Moreover, Ms. Wentworth's April 21 letter contemplated
that Mr. Capron could continue emailing to DHHS as he saw fit, and she agreed to his requested
accommodation that each email be acknowledged.
In sum, considering the evidence in the summary judgment record in the light most
favorable to Mr. Capron, the court nevertheless concludes that the Department's motion for
summary judgment should be granted.
13 The entry shall be:
The motion for summary judgment by defendant DHHS is granted and plaintiffs complaint is dismissed. The clerk is directed to incorporate this order in the docket by reference pursuant to Rule 79(a).
Dated: February I'?, 2021 J ~ Thomas D. Wa11'en Justice, Superior Court
Entered on the Docket: 0 z,/ I q/2-(
Plaintiff-Kenneth A Capron (Pro Se) Defendant-Kelly Morrell, MG
14 STATE OF MAINE SUPERIOR COURT CUMBERLAND, ss CIVIL ACTION DOCKETNO. CV-18-470
KENNETH CAPRON, et al.,
. Plaintiffs
.· v. ORDER
MAINE DEPARTMENT OF HEALTH' .··' A}JDHUMANSERVICES, '' '
:· Defenda~t .
·Thi~. will c~nfirni a'.iia s~pplerneri.t'rulings ~ta clistov~ry co~feren~e miJherecora th~t '.· ;as held.hithe abo-ve-captionecl'cas~;-()liJan.uary 27,.202(}·• ' . ·· :.' .. .-···::-...
·• ·' <.L·. Counsel for ,PHHS.has SGarcliedJor_ - 0
ariy eiµ_fiils felatiµg or 1:efer~ing_ to Kel111eth Capron .·. ,' .· ...·.·.:
:·•. _ill •. the ,te,?6u11ts_· of certai11 ·;pIIHs: .•~~pfoyee.s ·.a11dhaf _agreedJ(): s~at:?11; :iii the em~H·. accounts. ·of· ' '•. Went061jh .:an4•Halrn for ,tile period •. Japmtcy 1, '201_6' untjl July j 8; ·2016 (the, date theJvIHRC '. ' ·. ,7.
. ·. i i /t() a,ii.d frohl Wells wmiid be subject to. \Votk: pfodu~(privilege :fiom)uly 18., 2016 onwarcl, a : . ,:
·:.···.· .· se~rchshould' be trtad~·thlo~gh his 'em~n;::rroniJ~nuary-l,2016 ·to•Julf18, 2016ifon6,has ri~.-r··
'''. beehun4ertake11 previou~iy.
Plaintiff-Pro Se Defendant-Kelly Morrell, Esq. 3. The court understands that plaintiff agreed at the conference that he is not seeking a
search through the emails of any of the other individuals mentioned at the conference with the
exception of Merchant and Turyn, However, any search relating to Merchant and Turyn depends
on whether plaintiff is.entitled to-litigate matters that occurred prior to September 21, 2015. See ,r
8 below. The court reserves decision on that issue at this time.
4. In addition to responsive emails, counsel for DHHS shall also search for and produce
any documents or notes other than emails relating or referring to Kenneth Capron from January
1, 2016 to July 18, 2016. This shall include but is not limited to any documents, notes, or
minutes of (a) the meeting that occurred with Capron on April 1, 2016; (b) the April 22 meeting
"re: K_en Capron" that is referred to in plaintiffs second request for production of documents;
and (c).any other meeting relating to plaintiffs request for an accommod_ation on the basis of
disability.
5. Counsel for. DHHS shall search for and produce any daily meeting schedules that exist
for Hamilton foi· the period from June 1, 2015 to July 18, 2016. Plaintiffbelievessuch schedules
were created by Lawrenpe .
. 6. As stated at the conference, the work. product privilege would apply t.o litigation before
the Maine Human Rights Commission. Although there was discussion at the conference of
whether work product may be asserted for notes or communicatic:ms if they are not prepared by . . . or sent to an attorney, Rule 26(b)(3) refers to documents prepared in anticipation of litigation
"by or for a party" as well as by or for a party's representative. See Springfield Terminal Railway
Co. v. MDOT, 2000 .ME 126 ,r 18, 754 A.2d 353. Accordingly, the court 'Nlll agree that DHHS is
·entitled to assert work product privilege with respect to communications arnong_its employees as
well as with attorneys beginning on July 18, 2016, when the MHRC complaint was filed. All of
2 the events that are the subject of plaintiffs complaint occurred prior to his MHRC filing. The : .. . ..
court will not engage in an in camera review of the documents for which w·ork product ptivilege has been claimed unless plaintiff can demonstrate some basis for a belief that the. work· product
. privilege may not apply to some or all of the documents on the:privilege log. 2
7. . If the current DHHS policies relating to _non~discrimination - and reasonable
accomm_odations for persons with disabilities were not in effect during the period fron1 .January
__ .1, 20] 6_thrcmgh July 18, 2016, DHHS shaH produce any policie~ that-were in effect at that time. _
This should include any policies that would be ~applicable to ordinary ·citizens or "c~nstituents."
_,. · - · '8, Plaintiff stated a(the conference thaLhe_ is notp11rsuing a retaliation claim, but he' ;believes .· .. . there .is . . . . statutory . . . authority .. . for . Jum -· to.·. seek- ' . d~ct1ments . . . . ' relating . . to alieged . : - acts of . . ·.. ,-. '
.,_.: '._discri~1i11:ition thhtoccu1;ed prior fo Septerhbe1: 2J; 2015 /d~rilig ~ period of'tin1eWhich woµld: : '.
·. -_:_otherwfoe-he _·o~tside the itathte ofli111itations. Toe·cou1i~-agreed to -~liow plaintiffto pr_oyid~- the
•·statuto;y .auth.ority-_forthat ~g~e11{··-ana he sh~11 _do :So.o~ -ot b~f'ore-f~bruary 7,·-•2026 ·c;ith•iu1 -
<-. ~mailed b.~PY to tot1n~~l fo~DFiflS). Counsdfor IJHHS sha~Lhay{ t1nti1Fe~nia17 :1_4Jb r.~sp9n,d. ': : . \ -:.- : 9. How6v6r, -the ·cqt1rt haS revie,ved the file :-and_ plai11tiff s plyadings. arid ·co11clrid~s. that-•: ·
:_ ' . ::there: ~re two_-are~s )Vhere a search, should i11 ariy yVeht b~: bpiid~cted fof d?cuu,ieµts and ~mails ·prior , to .... .·· .- ... ,. September . . -'. . 2 i, . .201 s. Tp;is . .• is :because ·.· .. .-: the cloctirilentsi11 ..... '. . . . . . . · .. :·. .. : . que~tion .· ·: ·.. argu_ably .. ·. relate . . . . to the - .. . - .,.: ·: .,
:- reasoni._or~lleged_reasons ·fortheD:HFIS acp.orisin)\pri(2ofpthat~re the.subject of p_l~il:itiff s - : c~tu~l-~i~t··_ ·• ·:1 o·; Accordingly/whether . ·.... .- ·. .. ·or . . IJ,Ot pl~iptiff.lllay ~thetwise litigat~ eve~ts ·that took pface : ·_ ..·.· . . · .. : ·,· . . . ·,.· . ' ·' ·.·. ., ' ,'• . .
prior·tO September 21, 2015, coun~~l for DHHS shall seru-'¢ffor ruid produce any docunient{or.
' ..• : .e~ailsthafrelate to' th~Tef~rence :i11 a March_ 20l{MEDCJ\PS repbttto ,an individ~al''~ho ·was: '
- 2 All of _the dcfou~enis -· . on. the pdvileg·e . . . log post-dat!.l - . the - . 1VIHR.c fili~g.· '. ·. :- : .. so outspoken, opinionated and divisive that some individuals asked to be removed from the
stakeholder list." This shall include any documents relating or refen'ing to the allegedly divisive
behavior and any documents relating or referring to what the March 2014 report refers to as a
response of channeling all communications through Office Directors and ending monthly
stakeholder meetings.
11. In addition, without limitation to the period from September 21, 2015 to July 18,
2016, counsel for DHHS shall produce any documents or emails (if not already produced) that
relate to the statement in Hamilton's January 1, 2016 email that prior responses to Plaintiffs
emails "have not.been effective," including the prior responses to which Hamilton was referring.
12. The above rulings address the Rule 26(g) issues arising from defendant's response to
plaintiffs first request for production and certain of the follow-up requests contained m
plaintiffs untimely second request for production. Otherwise .DHHS need not r\"spond to
· plaintiffs second request because plaintiffwaited to serve it until ·9 or 1.0 days before the then
• existing discovery. deadline, because the requests. not included in the rulings ~bove do not appear
to be reasonably calculated to lead to discovery of relevant and admissible evidence, and because
the court .understands that plaintiff is not pursuing many of those requests.
13. The discovery deadline is extended to February 26, 2020 solely for the purpose of the
discovery set forth above. the parties shall have 30 days after the discovery deadline in which to
file any dispositive motions.
14. Plaintiff has moved to amend his complaint solely to add a rl)quest for .civil penal
damages under 14 M.R.S. § 4613(2)(B)(7). Civil penal damages, unlike compensatory damages,
would not generate additional issues for trial or convert this action into .one where a trial by jury
might be demanded. See Falmouth v. Long, 578 A.2d 1168,.1171-72 (Me. 1990). In addition,
4 .plaintiff is seeking attorney's fees but as a pro se litigant, he is likely not entitled to attorney's . . .
fees. See Kay v. Erler, 499 U.S. 432, 435 & n.5 (1991). As a result, the cot1rt will grant.the
motion to amend. The court retains the discretion to determine the amount of any civil penal
damages to assess - if plaintiff prevails. . . ..
15. The Depru.tment may file an answer to . the amended complaint if it chooses to do so .. . . . ..
on ~r before February ·: ·. : . 14, 2020. Because the amended complaint ·co.ntains no new factual . . . .. - ·.. ·. . -: : ,.
allegations, however, the Department's existing answer shall apply to the amended complaintif
.•·.:.. :•. the· Department ·does not file a separnte answer to the amended .complaint ...··
The entry shall he: ·.·..···.·.: C. iJ: Disccivery order entered.' · . ··.· •··. · ··. :· ·f. Discovery cleadline. erlertcled· to. F ebrmtry 26, 2020 ·foi the discovery referred to in.. thi~ ·....... · •· . • ·.· •.• ()rder> The parties shall have 30 days after the discovery de~clline in which to file any dispo~itiv~ .···•. ·.· .. . ·lhotions. :. ·• .· · · · ·· · - · · ·· · · ·· · ·· · ··
· 3.: Ph1iritiffSinotion to aip.erid is granted. . > . .
.. •Ruk79(~J'."e c1cik is \lirectOd \o ~cil'po~ tJns Pr(ier ffi \h{docket by iereren.;,, pllrsuall(\o .·•
··.h-~·····.·n.· . · . •_.·. ·.·.