MAINE SUPREME JUDICIAL COURT                                             Reporter of Decisions
Decision: 2019 ME 88
Docket:   Pen-18-456
Argued:   May 16, 2019
Decided:  June 4, 2019

Panel:          SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.



                                  WILLIAM F. GALLAGHER

                                               v.

                      PENOBSCOT COMMUNITY HEALTHCARE et al.


JABAR, J.

         [¶1]     William F. Gallagher, M.D., appeals from the Superior Court’s

(Penobscot County, A. Murray, J.) grant of summary judgment in favor of

Penobscot Community Healthcare, Robert P. Allen, M.D., Noah Nesin, M.D.,

Terry White, and Lori Dwyer, Esq. (collectively, PCH). He argues that the court

abused its discretion by not, on its own accord, granting him accommodations,

appointing him a guardian ad litem, or ordering that his mental health be

evaluated when the court “knew [or] should have known, based on the material

that [he] had submitted to the [c]ourt, that he was suffering from a mental

disability that significantly impaired his mental health.”                 We affirm the

judgment.
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                                         I. BACKGROUND

        [¶2] As established in the summary judgment record, in April 2014,

Gallagher, a licensed physician, was terminated from his position as a

dermatology specialist at Penobscot Community Healthcare due to numerous

staff and patient complaints of rudeness, bullying, inattentiveness, and other

unprofessional behavior. Gallagher brought suit against PCH in late March

2016, alleging age discrimination, retaliation, breach of contract and various

other torts, seeking, among other remedies, reinstatement to his position at

Penobscot Community Healthcare.1 Although initially represented by two

different attorneys at points throughout this case, Gallagher was proceeding

without counsel as of January 2018.

        [¶3] In July 2018, PCH filed a motion for summary judgment on all of

Gallagher’s claims. Gallagher requested a sixty-day extension of the deadline to

file his opposition to the motion, which the court granted. As the deadline

approached, however, Gallagher filed another motion requesting a further


    1 Prior to this action, Gallagher filed a similar complaint in the United States District Court for the
District of Maine, alleging federal age discrimination and retaliation claims as well as state law tort
claims. See Gallagher v. Penobscot Cmty. Healthcare, No. 1:15-CV-244-DBH, 2016 U.S. Dist. LEXIS
33465 (D. Me. Mar. 15, 2016). However, because Gallagher failed to file a claim with the Equal
Employment Opportunity Commission prior to filing suit, the federal court dismissed his age
discrimination and retaliation claims. Id. at *7-8. The court declined to exercise supplemental
jurisdiction over the remaining state law tort claims and dismissed the entirety of Gallagher’s action.
Id. at *17-18.
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extension, citing the “challenges of organization[], preparation, typing, [and]

analysis [of] a vast amount of documents and audio transcripts[,]

. . . compounded by an injury to [his] hip,” depression, and “suicidal thought in

the past,” referring to November 2017. The court again granted Gallagher’s

request, but warned that it would be the “final continuance/extension” granted.

Despite this, Gallagher again requested an extension of his deadline on

October 4, 2018.    The court granted the extension to “accommodate his

asserted disability,” but also reminded Gallagher that “compliance with the

Rules of Civil Procedure [was] required.”

      [¶4] On October 15, 2018, Gallagher filed his opposition to PCH’s motion

for summary judgment. His filing included a document entitled “MEMO in

Opposition to SJ” and what is denoted on the docket record as a “box of

documents.” Gallagher’s “MEMO” did not include any statements of material

fact or citations to supporting evidence. See M.R. Civ. P. 56(h)(2). The court,

stating that “[i]t is not the [c]ourt’s responsibility to sift through the box of

documents filed by [Gallagher] to determine if there might be genuine issues of

material fact therein,” concluded that all of PCH’s asserted material facts were

supported by record evidence, deemed them admitted, and granted summary

judgment in favor of PCH on all claims.
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                                          II. DISCUSSION

        [¶5] At the outset, we note that the court did not err by granting

summary judgment in favor of PCH on all of Gallagher’s claims. Because they

were properly supported by record evidence, the court correctly deemed all of

PCH’s statements of material fact admitted by Gallagher because of his failure

to deny them as required by Maine Rule of Civil Procedure 56(h)(2). See also

M.R. Civ. P. 56(h)(4); Levine v. R.B.K. Caly Corp., 2001 ME 77, ¶ 9, 770 A.2d 653

(“The court is neither required nor permitted to independently search a record

to find support for facts offered by a party.”); Richards v. Bruce, 1997 ME 61,

¶ 8, 691 A.2d 1223 (“[P]ro se litigants are held to the same standards as

represented litigants.”). Because a de novo review of the record reveals “no

genuine issues of material fact,” PCH is entitled to judgment as a matter of law

on all claims. Berry v. Mainestream Fin., 2019 ME 27, ¶ 6, 202 A.3d 1195

(quotation marks omitted); see also M.R. Civ. P. 56(c), h(4).

        [¶6] We write further only to address Gallagher’s argument that the

court failed to properly accommodate his asserted disability.2 As we have



    2Gallagher also contends that the court abused its discretion by failing to order a mental health
evaluation, see M.R. Civ. P. 35(a), or appoint a guardian ad litem, see M.R. Civ. P. 17(b). Because
Gallagher raises this issue for the first time on appeal, it is not preserved. See Foster v. Oral Surgery
Assocs., P.A., 2008 ME 21, ¶ 22, 940 A.2d 1102. Regardless, because neither of the Rules cited by
Gallagher is applicable to this situation, we find no merit to his contention. See M.R. Civ. P. 17(b)
(allowing for the appointment of a guardian ad litem for unrepresented incompetent persons); 35(a)
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previously noted, “[a]n individual with a disability may request special

accommodations to ensure an equal opportunity to participate in a court

proceeding.” Blackhouse v. Doe, 2011 ME 86, ¶ 8, 24 A.3d 72 (emphasis added);

see also Me. Judicial Branch, Policy on Access for People with Disabilities,

https://www.courts.maine.gov/maine_courts/admin/ada/policy.html;                            Me.

Judicial Branch, Accommodation Request Procedure, https://www.courts.

maine.gov/maine_courts/admin/ada/accommodation.html.                         If the judge or

court official denies the requested accommodation, then a written explanation

for the denial must be provided along with a copy of the Judicial Branch’s

grievance procedure.           See Me. Judicial Branch, Accommodation Request

Procedure;          Me.        Judicial         Branch,         Grievance           Procedure,

https://www.courts.maine.gov/maine_courts/admin/ada/grievance.html.

       [¶7] In this case, the only “accommodations” Gallagher requested from

the court were three extensions of the deadline to file his opposition to PCH’s

motion for summary judgment.                The court granted each of his requests,

extending his deadline by almost three months.                    The record contains no




(permitting a court to order a mental health evaluation upon a “motion for good cause shown” when
mental health of a party is in controversy (emphasis added)).
6

indication that Gallagher requested any other accommodations at any time

prior to this appeal or that the court denied any accommodation requests.

        [¶8] Further, although proceeding unrepresented at the time of PCH’s

motion for summary judgment, Gallagher was represented between the filing

of his complaint in 2016 and October 2017, and then again between late

December 2017 and mid-January 2018. Neither attorney raised any issue of

incompetence or the need for accommodations. See In re Child of Mercedes D.,

2018 ME 149, ¶ 17, 196 A.3d 888 (“[A]n attorney bears the responsibility to

alert a court to his or her client’s possible incompetence.” (alterations and

quotation marks omitted)). Accordingly, we find no error or abuse of discretion

in the court’s handling of Gallagher’s requested accommodations.

        The entry is:

                           Judgment affirmed.



Gene Sullivan Jr., Esq. (orally), Bangor, for appellant William F. Gallagher

Karen Frink Wolf, Esq., and Rachel M. Wertheimer, Esq. (orally), Verrill Dana
LLP, Portland, for appellees Penobscot County Healthcare, Robert P. Allen, Noah
Nesin, Terry White, and Lori Dwyer


Penobscot County Superior Court docket number CV-2016-54
FOR CLERK REFERENCE ONLY
