Ouellette v. Beaupre

977 F.3d 127

• Court: Court of Appeals for the First Circuit
• Decided: October 7, 2020
• Docket: 19-2069P
• Status: Published

Opinion

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

- 3 - 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

- 4 - 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

- 5 - 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.

- 6 - 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.

- 7 - 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

- 8 - 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.

- 9 - 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

- 10 - 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.

- 11 - 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

- 12 - 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

- 14 - 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

- 16 - 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).

- 18 - 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

- 19 - 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.").

- 20 - 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.

- 21 - 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

- 22 - "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

- 23 - 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

- 24 - 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

- 25 - 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

- 26 - 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:

- 27 - 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

- 28 - 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

- 29 - 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.

- 30 - 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.

- 31 - 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

- 32 - 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

- 33 - 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

- 35 - 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.

- 37 - 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.

- 40 -