Douglas v. York County

United States Court of Appeals
For the First Circuit

No. 05-1940

KRISTIN DOUGLAS, a/k/a Tina Beth Martin,

Plaintiff, Appellant,

v.

YORK COUNTY; YORK COUNTY SHERIFF'S DEP'T;
UNKNOWN DEFENDANTS DEPUTY SHERIFFS,

Defendants, Appellees,

YORK COUNTY SHERIFF,

Defendant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. George Z. Singal, Chief U.S. District Judge]

Before

Boudin, Chief Judge,
Stahl, Senior Circuit Judge,
and Lynch, Circuit Judge.

Thomas F. Hallett, with whom Thomas Hallett Law Offices was
on brief, for appellant.
Michael J. Donlan, with whom Verrill Dana, LLP was on brief,
for appellees.

December 28, 2005
 LYNCH, Circuit Judge. The question presented is whether

a civil rights action brought in May 2002, for events thirty years

before, was brought too late under Maine's statute of limitations,

or whether the statute of limitations was tolled by the plaintiff's

mental illness.

The plaintiff, Kristin Douglas, alleges that she was gang

raped by male prisoners in the fall of 1971 when she spent 10 days

in the York County Jail in York, Maine. In the face of a clear

statute of limitations problem, Douglas argues that at the time of

the attack, and during a nearly twenty-five-year period thereafter,

she was mentally ill within the meaning of the Maine tolling

statute, Me. Rev. Stat. Ann. tit. 14, § 853. Section 853 provides

that if a person "is a minor, mentally ill, imprisoned or without

the limits of the United States when the cause of action accrues,

the action may be brought within the times limited herein after the

disability is removed." Id. By judicial construction, the term

"mentally ill" in the tolling statute "refers to an overall

inability to function in society that prevents plaintiffs from

protecting their legal rights." McAfee v. Cole, 637 A.2d 463, 466

(Me. 1994) (emphasis in original).

The plaintiff brought two claims. The first was under

state law for "negligence or misconduct of [the sheriff] or his

deputies." The applicable statute of limitations for this state

law cause of action is four years. Me. Rev. Stat. Ann. tit. 14,

-2-
§ 851. The second claim was brought under the federal civil rights

laws, 42 U.S.C. §§ 1983, 1988. Since there is no federal statute

of limitations for federal civil rights actions, courts look to the

state limitations period for personal injury actions. See Centro

Medico del Turabo, Inc. v. Feliciano de Melecio, 406 F.3d 1, 6 (1st

Cir. 2005) (citing Owens v. Okure, 488 U.S. 235, 240-41, 249-50

(1989)). The Maine statute of limitations for personal injury

actions is six years. Me. Rev. Stat. Ann. tit. 14, § 752. Thus

Douglas would have to show that she was mentally ill within the

meaning of § 853 until at least 1998 for the state law cause of

action and 1996 for the federal cause of action.1

The district court granted the defendants' motion for

summary judgment on the ground that a reasonable fact finder could

not conclude that Douglas was mentally ill under § 853 at all

points before 1996. We affirm.2

1
Douglas does not claim that she had periods where she was
not mentally ill, and so we do not directly address how the Maine
courts would deal with that situation, except to note that the
Maine Law Court has held that "a party cannot avail himself of a
succession of disabilities, but only of such as existed, when the
right of action first accrued." Butler v. Howe, 13 Me. 397, 402
(1836).
2
We assume arguendo that Douglas was mentally ill when her
cause of action accrued, which is a requirement of § 853. See
Dasha v. Me. Med. Ctr., 665 A.2d 993, 994-95 (Me. 1995) (tolling
statute not available to plaintiff who was "not mentally ill when
the cause of action accrued"). The district court here found that
there was an issue of material fact with respect to this question.
The defendants urge affirmance on the alternate ground that the
district court erred in denying them summary judgment on this
ground. We decline to address the issue, since we affirm on the

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 I.

We give the core facts, taking all reasonable inferences

in favor of Douglas. In the fall of 1971, Douglas was arrested for

traffic violations and spent ten days in the York County Jail. The

jail allowed male trustee prisoners to have access to the keys to

all the cells, including her cell. While she was incarcerated in

the York County Jail, a trustee prisoner used his key to enter her

cell and rape her, and then let in three other inmates to rape her

as well; these rapes continued for three or four days.

After being released from jail, Douglas traveled to New

York for an abortion. Her pregnancy was a result of the rapes.

After the abortion, Douglas went to stay with a friend in Newton,

Massachusetts, until after Thanksgiving of 1971. Douglas stole a

car in Massachusetts and drove to Colorado, where she had spent

some time earlier. Douglas got a job as a chambermaid in Aspen,

Colorado, where she stayed until March or April of 1972. She then

moved to California; on her way there, she stole another car and

sold the one she had earlier stolen in Massachusetts. In

California, Douglas was arrested for stealing clothes and food; she

spent six months in the San Bernardino jail.

After she was released in 1972, Douglas drove to Vermont

in a Jeep she had stolen in Arizona. In Vermont, she was arrested

same basis as the district court -- that Douglas cannot show that
she continued to be mentally ill within the meaning of the Maine
tolling statute during the relevant time period.

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for stealing a gun. Upon her arrest, the authorities discovered

the stolen car. She pled guilty to both crimes and was sentenced

to six months in local jail for theft of the gun and a maximum of

six years in federal prison for theft of the Jeep. Douglas spent

time in three different federal prisons. In each prison, she

worked for the prison dentist as a dental assistant. She also

helped her fellow inmates fill out forms so that they could receive

credit for time served. Because of disciplinary problems, her

sentence was extended. All told, she spent five years in jail,

from 1973 to 1978.

After her release in 1978, Douglas spent some time in

San Francisco -- six months in a halfway home and then another four

or five months in a shared apartment, where she held jobs and paid

rent. Sometime after September of 1979, Douglas moved to Austin,

Texas, where she held a number of odd jobs, including as a

paralegal at a legal aid clinic for two months and as a delivery

person for an alfalfa sprouts farm for under a year. In 1980,

Douglas returned to California, where she would spend the next few

years. During this time she rented a succession of apartments in

the San Francisco area and lived with roommates. She began

attending Alcoholics Anonymous meetings, which she continued to

attend sporadically over the next ten years.

Douglas lived in San Francisco for part of this period.

She first took a part-time job at a vegetable warehouse, loading,

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unloading, and moving vegetables. While working there, she

obtained an emergency medical technician certificate from a

community college. Then, for nearly a year in 1983 or 1984,

Douglas worked at a transportation company, where she drove elderly

people to various locations.

In the fall of 1985, Douglas began a one-year dental

assistant program at the City College of San Francisco. She

completed this program, and after doing fill-in work for a number

of dentists, she began working as a part-time dental assistant for

Dr. John Fairchild. She quit after less than a year because she

was not making enough money. She then worked as an apprentice

sheet metal worker for under a year, and then again as a dental

assistant, this time with the University of California Dental

School, for about a year.

Around 1990, Douglas moved to Marin County, California.

She attended college classes in Marin; she also worked for Dr. John

Johnson, an oral surgeon, for about two and a half years. She then

left her job and did not pursue new employment as a dental

assistant because she had been diagnosed with Hepatitis C, which

precluded her from taking a position where she was in contact with

other people's blood.

In 1993, the plaintiff moved in with a woman named Renie

Lindley. After moving a few times around Northern California,

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Douglas and Lindley moved to Hawaii, where they currently live.

Douglas has paid and continues to pay rent to Lindley.3

On two occasions over the years, Douglas hired attorneys

to aid her in pursuing legal claims. In 1992, Douglas hired an

attorney to represent her in a worker's compensation claim. In

1994, she hired another attorney to assist her with the appeals

process for her Social Security disability benefits. Douglas has

maintained a checking account continuously since 1971, with the

exception of the period she was in jail.

Douglas has received psychological treatment, off and on,

since 1982, but has never been committed to a psychiatric hospital.

In 1995, she was diagnosed with chronic depression by Dr. Hazem

Hashem. She also was diagnosed by two separate doctors as

suffering from bipolar disorder. She was later examined by expert

witnesses, as described below.

II.

This is the second time the case has been before this

court. See Douglas v. York County (Douglas I), 360 F.3d 286 (1st

Cir. 2004) (remanding the case).

To support her tolling argument, Douglas has relied

heavily on the opinion of her expert, Dr. Diane Schetky, a forensic

psychiatrist. Dr. Schetky conducted forensic evaluations of

3
The record does not contain any evidence of what Douglas has
done in terms of employment and or education since 1993.

-7-
Douglas on October 15, 2000, November 13, 2000, and November 22,

2002, and relied on Douglas' medical and psychiatric record. Dr.

Schetky diagnosed Douglas with "Bi-Polar Disorder with a current

depression, Post-Traumatic Stress Disorder and Mixed-Personality

Disorder, with borderline, dependent and anti-social features."

According to Dr. Schetky's affidavit, Douglas' pre-existing

depression was exacerbated by the rapes and "[s]he went on to

develop typical signs of Post Traumatic Stress Disorder related to

the rapes." Dr. Schetky concluded as follows: "It is my impression

that only recently (2000), with the help of treatment of her

depression and Post Traumatic Stress Disorder, has she been strong

enough to contemplate bringing a lawsuit for the rapes. . . . Given

Ms. Douglas' low level of functioning in general, it would have

been impossible for Ms. Douglas to have gathered enough emotional

and psychological strength to proceed forward in any type of

lawsuit concerning the jail house rapes."

The defendants countered with an affidavit from their own

expert, Dr. Carlyle Voss, a psychiatrist who examined Douglas in

October of 2002 and reviewed Douglas' medical history. Dr. Voss

stated: "Since the alleged rapes in 1971, Ms. Douglas'

psychological disorders have not resulted in an inability to

function in society in a way that prevented her from protecting her

legal rights. This is most notably established by [her] holding

several jobs after the alleged rapes, living independently, and

-8-
participating in a wide range of life activities." Dr. Voss'

affidavit also states: "Ms. Douglas did not report any direct

effect of the rapes on the pre-existing post-traumatic stress

disorder beyond her own report of increased difficulty in

sustaining intimate relationships."

The record is undisputed that Douglas could recall the

rapes when interviewed by the two experts and that Douglas

mentioned the rapes to others when she was in prison from 1973 to

1978. It is also undisputed that she told her family about the

rapes soon after they occurred. The defense expert, Dr. Voss,

focused on Douglas' cognitive awareness that she had been raped.

By contrast, Dr. Schetky focused on what she called the

overshadowing of Douglas' cognitive state by her emotional state.

As a result, Dr. Schetky considered this situation not as one of

repressed memory, but "suppressed memory"; by this she meant that

Douglas' emotional state made it "difficult to take any action on

the matter until recent years."

The magistrate judge initially found that Douglas could

not show that she was mentally ill after the rape within the

meaning of § 853 -- that she did not suffer from an "overall

inability to function in society that prevents [her] from

protecting [her] legal rights." McAfee, 637 A.2d at 466. The

magistrate judge noted that Dr. Schetky's testimony focused on the

plaintiff's inability to bring the instant lawsuit, but that the

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McAfee standard required more -- a showing of "the overall

inability to function in society, not just the inability to protect

the legal rights that might be at issue in the instant case." The

magistrate judge found that Douglas "demonstrated . . . an ability

to function in society which, while certainly not approaching

optimal or even perhaps average functioning, must be deemed

sufficient to have permitted her to protect her legal rights."

Indeed, the magistrate judge found it persuasive that on two

occasions -- in 1992 and 1994 -- she had protected her legal rights

and hired an attorney. In addition, the magistrate judge relied,

inter alia, on the following: that Douglas had maintained a

checking account through most of the period, made living

arrangements and paid rent, found employment, and obtained

certification as an emergency medical technician and a dental

assistant after taking classes. The magistrate judge recommended

dismissal of the case on limitations grounds.

On May 23, 2003, the district court, on review of the

magistrate judge's recommended decision, granted the defendant's

motion for summary judgment, though on different grounds than those

relied on by the magistrate judge. See Douglas I, 360 F.3d at 289.

The district court shifted the issue in the case, without giving

Douglas notice or an opportunity to respond, from whether Douglas

was mentally ill in the period after the alleged attack (the focus

of the evidence and the magistrate's decision) to whether she was

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mentally ill at the time of the alleged attack. Douglas moved for

reconsideration, tendering new evidence supporting her claim that

she suffered from mental illness at the time of the attack; the

district court denied the motion. Douglas I, 360 F.3d at 290-91.

We ruled that the district court abused its discretion, and

remanded. Id. At that time, we declined defendants' invitation to

affirm on the basis that the evidence "conclusively establishe[d]

that Douglas was not so mentally ill that she could not have

brought this lawsuit long before she did" because "the district

court never reached [the] issue." Id. at 291.

After remand, the defendants immediately moved for

summary judgment on the grounds originally relied on by the

magistrate judge. No new evidence was presented by either side.

The magistrate judge recommended that the motion be granted,

incorporating by reference the reasoning of his earlier

recommendation.

The district court denied the defendant's second motion

for summary judgment, finding that, based on the evidence on the

record at the time, there was a genuine issue of material fact as

to whether Douglas was mentally ill during the relevant time

period. The district court expressly noted, however, that this was

"a close question and one that future factual results may affect."

The case returned to the magistrate and the second phase of

discovery proceeded.

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 At the end of discovery, the defendants moved a third

time for summary judgment.4 This time, each side supported its

argument with full evidence. The defendants argued that Douglas

failed to demonstrate that she was mentally ill within the meaning

of § 853 during the relevant period of time after the rape. The

magistrate judge agreed and recommended that the defendants' motion

for summary judgment be granted on this ground. While there may

have been an issue of material fact when the district court denied

the defendants' second motion for summary judgment, the magistrate

judge found that further discovery had uncovered additional

evidence that made it clear there was no disputed issue of material

fact as to the post-rape period.

The new facts relied on by the magistrate judge included

the following. Douglas was a licensed dental assistant for about

five years in the mid- to late 1980s. She had been hired by Dr.

Fairchild after meeting Dr. Fairchild and his wife, and had no

trouble performing her job. As part of her job with Dr. Johnson,

the oral surgeon, Douglas escorted patients into the surgery room

and took their blood pressure. During operations, Douglas

4
Douglas responded with a motion to strike almost the
entirety of the defendants' motion on collateral estoppel grounds.
The magistrate judge denied the motion to strike, and Douglas
wisely does not appeal this determination. The defendants, in
turn, argued that Douglas' action was barred by the doctrines of
collateral estoppel, judicial estoppel, and laches. The magistrate
judge rejected these arguments, and the defendants do not appeal
these determinations.

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monitored patients' heart rates and raised any problems with the

heart rates with Dr. Johnson. After surgery, Douglas gave the

patients post-operation instructions. Further, the magistrate

judge noted that Dr. Schetky had testified at a deposition that

Douglas "had the ability to concentrate and retain information, to

be tested on that information and obtain satisfactory grades, to

put together a resume or employment application and get a job and

to sit down, be interviewed by a person who hired her and be

perceived as having the necessary skills to do the job." The

magistrate judge noted that Dr. Schetky had explained that Douglas'

hiring of attorneys on previous occasions "demonstrated her ability

to . . . protect her legal rights in the workplace, but it did not

help her with the social support needed to go through a lawsuit

involving emotional trauma such as rape."5

The magistrate judge concluded that, "particularly given

Dr. Schetky's deposition testimony that the plaintiff demonstrated

her ability to protect her legal rights on two occasions during the

relevant period by hiring lawyers," Douglas had "failed to offer

evidence that would allow a reasonable fact finder to conclude that

she suffered from an overall inability to function in society that

5
The magistrate judge also relied on Dr. Schetky's deposition
testimony that she "believed, assuming that the court deemed her
competent to enter a plea, that the plaintiff was competent to
enter a guilty plea to a charge of motor vehicle theft in the early
1970s." Douglas attacks this factual finding as being unsupported
by the record. It is unnecessary for us to resolve the issue
because it would not change the outcome of this appeal.

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prevented her from protecting her legal rights" during the period

after the attack. The district court affirmed in full the

magistrate judge's recommended decision and dismissed the case.

Douglas appeals, arguing that granting the defendant's motion for

summary judgment on the issue of tolling was inappropriate.

III.

Under Maine law, the question of whether the statute of

limitations is tolled by mental illness at all is a question of

fact in cases in which a jury is available. Bowden v. Grindle, 675

A.2d 968, 971 (Me. 1996).

We review the district court's decision to grant

defendant's motion for summary judgment on statute of limitations

grounds de novo, construing the record in the light most favorable

to the non-moving party. Hadfield v. McDonough, 407 F.3d 11, 15

(1st Cir. 2005). We will affirm if, based on our independent

review of the evidentiary record, there is no genuine issue of

material fact and the undisputed facts indicate that the moving

party is entitled to judgment as a matter of law. Fed. R. Civ. P.

56(c); Hadfield, 407 F.3d at 15.

Plaintiff's argument is that she has been continuously

mentally ill from the accrual of the cause of action until some

period within four years or six years of the date she filed suit in

2002, and that a reasonable fact finder could conclude in her

favor. While plaintiff has not given a precise date, she argues

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that the turning point -- when she was no longer disabled by mental

illness -- did not come until 2000. She asserts what really are

two different themes: (1) that the very marginality of the life she

has led shows that she did not have an overall ability to function

in society in a way that allowed her to protect her rights and (2)

that even if she had some ability to function, as to the specific

claim she asserts of rape, there was a question of fact about

whether she had an overall inability to function in society that

prevented her from protecting this specific right. Her

psychiatrist expressly distinguished Douglas' ability to pursue her

rights as to the cause of action for the rapes from her ability to

protect her legal rights in other contexts. Her second theme,

then, is that while she was aware all along that she had been

raped, her mental illness, which predated and was exacerbated by

the rapes, prevented her from acting to sue for those rapes, even

if she was capable of protecting other legal rights.

As a federal court sitting in diversity, we try to apply

our best understanding of the principles Maine has adopted. It is

not our role to expand Maine law; that is left to the courts of

Maine. See Jordan v. Hawker Dayton Corp., 62 F.3d 29, 32 (1st Cir.

1995).

No Maine case directly answers the question before us.

We look to the background of the adoption of the McAfee test, the

Maine Law Court's historical approach to both limitations and

-15-
tolling provisions, and analogous areas of Maine law. In

combination, they lead us to the view that Maine would reject the

tolling argument here.

A. The Tolling Statute and Interpretive Case Law

The tolling statute, which has deep roots in Maine

history, was amended in the 1950s and applies to four categories:

minors, the mentally ill, the imprisoned, and those outside the

limits of the United States when the cause of action accrues. In

such instances, the action may be brought within the times limited

"after the disability is removed." Me. Rev. Stat. Ann. tit. 14,

§ 853. In all of the other categories, save for the disability of

mental illness, it will be fairly evident when the disability has

been removed. The 1950s amendment substituted the phrase "mental

illness" for the word "insanity." See McCutchen v. Currier, 47 A.

923 (Me. 1900) (quoting prior tolling statute). Neither side has

provided us with any legislative history as to the reasons for this

change.

The Maine Law Court has had little opportunity to address

questions about the proper interpretation of the term "mental

illness" in the tolling statute. It did adopt the McAfee test,

stating that mental illness for the purposes of the tolling statute

means "an overall inability to function in society that prevents

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plaintiffs from protecting their legal rights."6 McAfee, 637 A.2d

at 466. There are no cases directly dealing with the configuration

of facts that characterizes this case.

The tolling statute itself does not define "mental

illness," nor does it provide any measure for evaluating when the

disability of mental illness has been removed. From case law, we

know that the standards for determining mental illness for purposes

of the tolling statute are not necessarily the same as when

determining mental competence for the ability to marry and divorce,

see Chasse v. Mazzerole, 580 A.2d 155, 157 (Me. 1990) (finding that

the fact that a mentally retarded woman had married and divorced,

standing alone, was not enough to show an absence of mental illness

under the tolling statute), or to stand trial, cf. State v. Bowman,

681 A.2d 469, 471 (Me. 1996) ("A defendant may suffer from a mental

disease or defect within the purview of [Maine's insanity defense

statute] and remain competent to stand trial."), or to avoid

appointment of a guardian, cf. Guardianship of Hughes, 715 A.2d

919, 925 (Me. 1998) (finding appointment of a guardian was proper

when "mental illness prevent[ed] [person] from making responsible

decisions in at least some areas of her life" (emphasis added)).

That is because, as Chasse says, "the legal standard of competency

varies for different purposes." 580 A.2d at 157.

6
This test was first articulated in McAfee, and has since
been adopted in Bowden, 675 A.2d at 971.

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 When the test was articulated in McAfee, 637 A.2d at 466,

the Maine Law Court drew on decisions from other states, citing

Smith v. Smith, 830 F.2d 11, 12 (2d Cir. 1987); Hildebrand v.

Hildebrand, 736 F. Supp. 1512, 1514 (S.D. Ind. 1990); Hickey v.

Askren, 403 S.E.2d 225, 229 (Ga. Ct. App. 1991); and Yannon v. RCA

Corp., 517 N.Y.S.2d 205, 206 (N.Y. App. Div. 1987). The cases on

which McAfee relies, to which we look for guidance, involve belated

lawsuits alleging sexual abuse, where the plaintiffs sought to toll

the statute of limitations based on repressed memories resulting

from post-traumatic stress disorder caused by the sexual abuse.

These other cases, however, interpret statutes providing for

tolling only in cases of "insanity" or "mental incompetence," and

not with "mental illness," the term used in the Maine statute. It

turns out that this distinction does not help the party seeking

tolling.

Smith, the lead case relied on by McAfee, involved

whether the New York statutory tolling provision for "insanity"

applied to a plaintiff alleging she had repressed her memories of

childhood sexual abuse by her father. 830 F.3d at 12. The

plaintiff's experts attributed the repressed memory to post-

traumatic stress disorder. Id. Smith held that the term

"insanity" did not apply to a person "claiming a mere post

traumatic neurosis," but applied only to those "who are unable to

protect their legal rights because of an over-all inability to

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function in society." Id. Smith, in turn, relied on McCarthy v.

Volkswagen of America, Inc., 435 N.E.2d 1072 (N.Y. 1982).

The term "mental illness" could easily have been read to

be more generous toward tolling than the New York statute's

"insanity" requirement.7 Indeed, it was important to the McCarthy

court in reaching its result that the New York Legislature had

declined to "broaden" the term "insanity" by replacing it with the

term "mental illness." 435 N.E.2d at 1074-75. Since the Maine

legislature, by contrast, did choose to replace the term "insanity"

with "mental illness," the Maine Law Court had a clear opportunity

to interpret the amendment as being more liberal toward tolling.

It has rejected such an interpretation.

Maine may have rejected a more liberal test for a reason

articulated in McCarthy. McCarthy expressly worried that a more

liberal interpretation might "inappropriately expand the class of

persons able to assert the toll for insanity and . . . weaken the

policy of the Statutes of Limitation as statutes of repose." Id.

at 1075. This is the same theme sounded by the Maine Law Court in

Nuccio v. Nuccio, 673 A.2d 1331, 1334-35 (Me. 1996) (denying

7
Similarly, the other cases cited by McAfee permitted tolling
only when there was mental incompetence -- arguably a more
restrictive term than "mental illness". See Hildebrand, 736 F.
Supp. at 1524 (holding that a sexually abused plaintiff did not
meet the standard of being "mentally incompetent" where the
evidence showed she could manage her ordinary affairs); Hickey, 403
S.E.2d at 228-29 (denying tolling based on "mental incompetency");
Yannon, 517 N.Y.S.2d at 206 (tolling statute of limitations for
"insanity" of plaintiff).

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equitable estoppel of statute of limitations in a repressed memory

case). The choice of a more restrictive interpretation of the

Maine statute belonged to the courts of Maine, and it binds us.

The parties have each relied on only one case applying

the McAfee test, Bowden, 675 A.2d 968, but Bowden is of little

assistance. In Bowden, the plaintiff filed suit three months after

the statute of limitations had expired, seeking rescission of a

deed she had conveyed to a relative soon after the death of her

husband. Id. at 970. Applying the McAfee test, the Maine Law

Court found sufficient evidence to uphold the trial court's finding

after trial that the plaintiff's mental illness was sufficient to

toll the statute of limitations.8 Id. at 971-72. This is a

different question than what evidence suffices to get to a jury on

the question of tolling.

In another case applying the McAfee rule, the Maine Law

Court has stressed that there must be evidence of "an overall

inability to function in society," see Morris v. Hunter, 652 A.2d

80, 82 (Me. 1994),9 and that a person could not be said as a matter

8
That evidence included the plaintiff's worsening mental
state after the death of her husband, such that she "became . . .
suicidal," that "she could not think, remember or understand what
was going on," that she "had difficulty cooking her own meals,
leaving the house, and driving," and that she had been
"hospitalized three times for psychiatric disorders." Bowden, 675
A.2d at 970-71.
9
The facts in Morris were quite different from those
presented here, and so it is of limited use. The case involved a
legal malpractice suit based on the attorneys' failure to alert the

-20-
of law to meet the definition when plaintiff "although perhaps

unable to make complex decisions without assistance, can do so if

provided with time and a careful explanation," id. at 82. The

court gave as an example that the plaintiff had signed a settlement

agreement for worker's compensation benefits in the relevant

period. Id. This also reflects a narrow approach.

B. General Approach to Limitations and Tolling

We look to the long history of statutory interpretation

of other provisions of the Maine tolling statutes. Under the pre-

1900 versions of § 853, which permitted tolling only for

"insanity," the Maine Law Court twice held that once the disability

was removed the statute of limitations began running, regardless of

whether there was a later period of disability. "[I]f disability

could be added to disability, claims might be protracted to an

indefinite period," and this was unacceptable. Butler v. Howe, 13

Me. 397, 402 (1836); see also McCutchen, 47 A. at 923 ("When the

statute of limitations has once begun to run, it is not interrupted

by a subsequent disability.").

plaintiff of the existence of medical malpractice claims before the
limitations period had run out. The attorneys' defense -- based on
no evidence -- was that there was no harm because the statute of
limitations was tolled due to the plaintiff's mental disability.
652 A.2d at 81-82. The trial court granted summary judgment for
the defendants. The Maine Law Court reversed, finding that there
was a genuine issue of material fact as to the plaintiff's mental
disability. Id.

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 Further, historically, Maine has held that relief under

the statute "is afforded . . . only when the disability existed

when the cause of action accrued." McCutchen, 47 A. at 923. If a

disability does not exist at the time of accrual, tolling is

unavailable.10 Dasha, 665 A.2d at 994-95. This may be true even

when it appears that the tort caused the disability to arise.

McCutchen, 47 A. at 923.

The Maine courts have also been noticeably and

consistently strict in interpreting the other aspects of tolling

provisions. A key principle is that these exceptions to statutes

of limitations must be narrowly construed. Dasha, 665 A.2d at 995-

96. The Maine Law Court has said that when "[t]he legislature has

explicitly outlined the contours of the statute of limitations" it

leaves no "room for [the courts] to carve out an exception to these

rules." Id. at 996.

Resort to analogy to related areas of law shows a similar

strict approach. The Maine courts have not been receptive to

quasi-tolling arguments about equitable estoppel of the limitations

defense or to equitable tolling itself, where plaintiffs claiming

repressed memories of childhood sexual abuse have tried to use

those doctrines to escape the strictures imposed on statutory

tolling. In McAfee itself, 637 A.2d at 465-66, in Harkness v.

10
We assume for present purposes that there was a material
issue of fact over whether plaintiff was mentally ill at the time
of the rapes.

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Fitzgerald, 701 A.2d 370, 372-73 (Me. 1997), and in Nuccio, 673

A.2d at 1334-35, the court rejected repressed memory claims as

grounds for tolling, estoppel, or creation of a "discovery rule."

We think the Maine Law Court is unlikely to be more generous to

claims where the plaintiff in fact recalls the event, but asserts

that her emotional condition "suppressed" her ability to act on it.

C. Evaluation of Douglas' Arguments

Douglas' first theory -- that she has shown a question of

fact about her overall inability to function in society that

prevents her from asserting any legal rights -- is easily defeated.

On this record, Douglas did function in general and did assert

other legal rights.

Douglas' stronger argument is her second one -- that the

McAfee standard should be read in reference to the specific claim

made, here of rape, and not to whether she otherwise had an ability

to function in society and to protect her other legal rights.

There may or may not be support for this view in a sentence in

Chasse. That case rejected defendant's argument that the mentally

retarded plaintiff was not mentally ill within the meaning of § 853

because she had been married and divorced: "Such evidence . . .

gives no indication that Chasse possessed sufficient competence to

comprehend and exercise her legal rights in the circumstances of

this case." 580 A.2d at 157 (emphasis added). The phrase may be

nothing more than a recognition that one could marry or divorce

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without necessarily being competent to function or protect one's

legal rights. Douglas reads it for more; she focuses on the final

phrase -- "in the circumstances of this case" -- to help make her

argument that only the legal rights at issue in the present case

are material for the second prong of the McAfee test. The

defendants argue that that would be an unnatural reading of McAfee11

and at tension with the first prong. In fairness, we think the

Maine Law Court has never been asked or resolved the precise

question.

Nevertheless, the Maine courts have consistently taken a

narrow approach to this tolling provision and have consistently

focused on the overall ability to function in society. As a

federal court sitting in diversity jurisdiction we have no license

to expand Maine law beyond its present limits. See Bucci v. Essex

Ins. Co., 393 F.3d 285, 293-95 (1st Cir. 2005). Moreover, there is

little reason to think the courts of Maine will suddenly shift to

a liberal interpretation. Douglas' second theory requires that the

overall inability to function portion of the test be minimized. We

think Maine law does not permit this. Because Douglas' second

11
McAfee presented a claim of repressed memory of childhood
sexual abuse; but the case turned on the failure of the complaint
to fairly notify the court and parties that plaintiff suffered from
an overall inability to function in society which prevented
plaintiff from protecting legal rights. 637 A.3d at 466-67. The
court did not say that a tolling defense could not be stated in
such sexual abuse cases, merely that claims of trauma and stress
did not suffice. Id.

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theory is premised on a broader view of the tolling provision at

issue here than the Maine courts would be willing to recognize, the

second theory must also fail.

We agree with the district court and the magistrate judge

that no reasonable fact finder could conclude that Douglas was

incapacitated from bringing her rape claim before 1996 (for the

federal claims) or 1998 (for the state claims). One can accept Dr.

Schetky's psychiatric testimony that Douglas lacked the emotional

and psychological "strength" to proceed in a lawsuit to address the

rapes. Against the evidence of her life as a whole, this

assessment is simply not enough to establish the mental illness

disability. Douglas remembered the rapes and told other people

about them, and thus confronted the rapes in several conversations

with others well before 1996. This demonstrates an ability to deal

with the fact that she had been raped. That her psychiatrist

opined she lacked the strength to take the further step of suing is

simply not enough against the entire record of background evidence

showing she did function in society to protect herself and her

legal rights. Douglas was reasonably self-sufficient throughout

the period in question, maintaining employment and paying rent, and

hiring counsel twice to protect her rights. She took action to

improve her lot by attending AA meetings for a decade and

completing two courses of study. Indeed, given Douglas' history,

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the story of her redeeming her life and becoming responsible is

independently praiseworthy.

Statutes of limitations serve important purposes,

including those of repose and fairness. Maine's allowance for

fairness to the mentally ill in its tolling provision simply cannot

be stretched so far as to toll Douglas' claim.

Given the approach that the Maine courts have taken in

the past to Maine's statute, the judgment of dismissal is affirmed.

No costs are awarded.

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