OLSZEWSKI

UNITED STATES DISTRICT COURT

DISTRICT OF MAINE

ROBERT OLSZEWSKI, JR., et ux., )

)

Plaintiffs, )

)

v. ) 1:24-cv-00209-JAW

)

BARRY HUTCHINS, individually and as )

former selectman, et al., )

)

Defendants. )

ORDER ON MOTIONS FOR RECONSIDERATION AND TO AMEND

COMPLAINT

The court rejects the plaintiffs’ Federal Rule of Civil Procedure 59(e) motion to

amend or alter judgment in which the plaintiffs demanded that the court reconsider

its order dismissing their case under 42 U.S.C. § 1983 against a town selectman in

both his individual and official capacities and against the town. The court concludes

that the plaintiffs have not established that the court’s dismissal was based on a

manifest error of law or fact or that reconsideration is necessary to prevent a manifest

injustice.

I. BACKGROUND

A. Procedural History

On June 7, 2024, Robert and Julie Olszewski (Plaintiffs), husband and wife,

filed a complaint alleging that Barry Hutchins, individually and as former selectman

of the town of Dover-Foxcroft, and the town of Dover-Foxcroft (the town) (jointly, the

Defendants) violated the First and Fourteenth Amendments to the United States

Constitution, Article I of the Maine Constitution, the Maine Civil Rights Act (MCRA)

(Count One), 42 U.S.C. § 1983 (Count Two), the Maine Human Rights Act (MHRA)

(Counts Three, Four, and Five), and are liable for intentional infliction of emotional

distress (Count Six), negligent infliction of emotional distress (Count Seven), and

defamation and invasion of privacy (Count Eight). Compl. Including Req. for

Declaratory and Injunctive Relief at 9-17 (ECF No. 1) (Compl.). On August 2, 2024,

Plaintiffs filed an amended complaint, revising their allegations to assert violations

of 42 U.S.C. § 1983 (Count One), the First and Fourteenth Amendments to the U.S.

Constitution, Article I, Section 6-A of the Maine Constitution, and the MCRA (Count

Two), the MHRA (Counts Three, Four, and Five), and raising allegations of

intentional infliction of emotional distress (Count Six), negligent infliction of

emotional distress (Count Seven),1 and defamation and invasion of privacy (Count

Eight). Pls.’ First Am. Compl. Including Req. for Declaratory and Injunctive Relief at

10-20 (ECF No. 5) (Am. Compl.).

On October 2, 2024, the Defendants filed a motion to dismiss the complaint.

Defs.’ Mot. to Dismiss (ECF No. 9). On October 23, 2024, the Plaintiffs filed their

opposition to the motion to dismiss. Pls.’ Opp’n to Defs.’ Mot. to Dismiss (ECF No. 13)

(Pls.’ Opp’n to Mot. to Dismiss). On November 6, 2025, the Defendants filed their

reply. Defs.’ Reply in Support of Mot. to Dismiss (ECF No. 14) (Defs.’ Mot. to Dismiss

Reply). On February 19, 2025, Chief Judge Lance E. Walker recused himself from

this case, and the case was randomly assigned to Judge John Woodcock. Order of

Recusal (ECF No. 15). On July 29, 2025, this Court issued a seventy-one-page

1 The Plaintiffs later withdrew Count VII, the negligent infliction of emotional distress count.

Pls.’ Opp’n to Defs.’ Mot. to Dismiss at 19 (ECF No. 13).

decision, granting the motion to dismiss as to the federal claims and dismissing the

state claims without prejudice after declining to exercise supplemental jurisdiction.

Order on Mot. to Dismiss (ECF No. 18) (Order). The Clerk entered a judgment of

dismissal that same day. J. of Dismissal (ECF No. 19).

On August 25, 2025, the Plaintiffs moved for reconsideration and moved to file

a second amended complaint. Pls.’ Mot. and Mem. in Support to Recons. Order and

J. Date[d] July 29, 2025 Granting Dismissal and for Leave to File Am. Compl. (ECF

No. 20) (Pls.’ Mot.); Pls.’ Mot., Attach. 1, Pls.’ Second Am. Compl. Including Req. for

Declaratory and Injunctive Relief (Second Am. Compl.). On September 15, 2025, the

Defendants opposed the Plaintiffs’ motions. Defs.’ Opp’n to Pls.’ Mot. for Recons. and

for Leave to File Second Am. Compl. (ECF No. 21) (Defs.’ Opp’n). On September 28,

2025, the Plaintiffs filed their reply to the Defendants’ opposition. Pls.’ Reply to Defs.’

Opp’n to Pls.’ Mot. for Recons. and Alteration of the Ct.’s Dismissal of Pls.’ Mot. for

Recons. (ECF No. 22) (Pls.’ Reply).

B. The July 29, 2025 Order on Motion to Dismiss

1. The Facts Alleged in the Amended Complaint2

On July 29, 2025, after an extended discussion of the Olszewskis’ federal

claims, the Court dismissed the Olszewskis’ amended complaint, declining to exercise

supplemental jurisdiction over their many state-law based claims, dismissing them

without prejudice. Order at 1-71. The Olszewskis’ amended complaint describes in

2 Here, the Court is attempting to be synoptic, describing generally the allegations in the

amended complaint without citation to specific paragraphs. In its July 29, 2025 order, each allegation

is followed by a citation to the specific paragraph in the amended complaint. See Order at 3-17.

detail a long-running, intense, and nasty clash largely between Mr. Olszewski and

Barry Hutchins, who for most of the time was a member of the town of Dover-Foxcroft

Board of Selectmen. Mr. Olszewski has a mental disability caused by a motor vehicle

accident in 1989 that makes it difficult for him to converse and communicate in real

time and causes him to become irritable, frustrated, and agitated in certain

situations, including conversations in public with public officials.

Although there was something of a history between Mr. Olszewski and the

town, the immediate conflict began in January 2022 when Mr. Olszewski petitioned

the town government about impassable roads, which he thought restricted emergency

services. About this time, Mr. Olszewski met with Mr. Hutchins who was then a

selectman for the town. The two began communicating about the town roads and

matters escalated with Mr. Hutchins complaining to several town officials in March

2022 that Mr. Olszewski was unstable, a danger, and threat to the community. By

April 2022, Mr. Hutchins had publicly accused Mr. Olszewski of harassing him and

sending him aggressive emails.

Beginning April 13, 2022, Mr. Olszewski sent Mr. Hutchins a FOAA request

and later sent the same request and other FOAA requests to the town. Mr. Hutchins

responded to the FOAA request by threatening to have Mr. Olszewski jailed and

subsequently attempting to do so. Mr. Hutchins also aggressively responded to Mr.

Olszewski’s FOAA request on Facebook Messenger with vulgarity and warning him

that Mr. Hutchins would pursue criminal charges against him.

On April 27, 2022, Mr. Olszewski petitioned the Board of Selectmen to

terminate Mr. Hutchins, and at the close of the hearing, Mr. Hutchins aggressively

moved toward Mr. Olszewski. The dispute between Mr. Olszewski and Mr. Hutchins

continued at the May 9, 2022 Selectmen Meeting, and spilled out into the parking lot.

In May 2022, Mr. Olszewski complained to the Board that Mr. Hutchins was denying

his First Amendment rights, and Mr. Hutchins responded that he was within his own

First Amendment rights to say what he pleased outside town meetings.

The dispute persisted. At the June 6, 2022 Board meeting, Mr. Olszewski

presented seven complaints against Mr. Hutchins, but after that meeting, Mr.

Olszewski retreated from involvement and stopped attempting to involve himself in

town affairs because he thought he was being provoked and threatened by Mr.

Hutchins. Even so, on June 10, 2022, Mr. Hutchins wrote a couple of nasty emails to

Mr. Olszewski, demeaning his mental health issues.

On June 11, 2022, Mr. Olszewski contacted the Dover-Foxcroft police to

complain about Mr. Hutchins’s conduct, alleging that it constituted disability abuse.

Officer Ober of the Dover-Foxcroft Police Department investigated the complaint.

Even though Mr. Hutchins admitted to Officer Ober that he knew Mr. Olszewski had

mental disabilities and he was trying to get into Mr. Olszewski’s head, Officer Ober

denied that Mr. Hutchins’s conduct was abuse and posited that it might amount to

harassment.

On June 13, 2022, Mr. Olszewski petitioned the Maine District Court in Dover-

Foxcroft alleging that Mr. Hutchins had engaged in a continuing course of conduct to

harass and injure him in retaliation for his exercise of First Amendment and civil

rights and accused Mr. Hutchins of trying to break him down due to his disability.

Just before a June 30, 2022 court hearing, Mr. Hutchins filed his own petition for

protection from abuse against Mr. Olszewski. At the close of the hearing, the

presiding judge imposed a no-contact provision against Mr. Olszewski, barring him

from attending meetings of the Select Board or going to the town office for the period

of the harassment order. On January 19, 2023, the presiding judge mooted all

motions going forward.

On December 13, 2022, Mr. Olszewski went to the town office and discussed

the court order with Police Chief Matthew Grant to see if he could attend an upcoming

Selectmen’s meeting. Mr. Olszewski was particularly concerned about a “No

Recording” sign on the town office front door and feared it would interfere with his

ability to record town meetings and interact with town officials, given his disability.

The town subsequently took the position that the town office was not a public forum,

and it disallowed private audio and video recording of any town business in the town

office. Also on December 13, 2022, a Facebook profile appeared that falsely accused

Mr. Olszewski of being a pedophile. Mr. Olszewski says that a Christopher Johnson

created the Facebook profile, but he thinks Mr. Hutchins was behind the posting.

On March 6, 2023, Mr. Olszewski filed a petition with the Maine Human

Rights Commission against the town of Dover-Foxcroft and Mr. Hutchins and sent

notice of tort claims against each. Subsequently, Chief of Police Seth Burns together

with Mr. Hutchins sought to reopen the mooted harassment action and to subject Mr.

Olszewski to a contempt proceeding based on his December 13, 2022 visit to the town

office.

The no-contact order expired on September 1, 2023.3 Mr. Olszewski attended

the October 23, 2023 Selectmen’s meeting. When Mr. Olszewski spoke at the

meeting, he was interrupted by Selectwoman Jane Conroy, who imposed a five-

minute speaking rule. At the meeting, Selectwoman Conroy stated that Mr.

Olszewski was threatening her and said that if Mr. Olszewski said anything about

her actions, she would sue him.

2. The Court’s Decision

The Olszewskis’ Amended Complaint contained eight counts. Am. Compl.

¶¶ 60-107. The Court focused its attention on the two federal counts, dismissing each

of the state-law based counts for initiation, if the Olszewskis chose to do so, in state

court. Count One alleged a violation of 42 U.S.C. § 1983 and Count Two violations of

the United States Constitution, the Maine Constitution, and the Maine Civil Rights

Act. More specifically, Count One alleged that the town and Mr. Hutchins violated

Mr. Olszewski’s “rights under the First and Fourteenth Amendments of the United

States Constitution.” Am. Compl. ¶ 63. The Olszewskis also point to the Court’s

stated assumption that his raising of local grievances to the town board was a

protected activity, Order at 61, and its conclusion that it need not address whether

3 In paragraph 44 of the amended complaint, the Olszewskis allege that on January 19, 2023,

Judge Faircloth “‘mooted all motions going forward’ effectively concluding the matter on January 19,

2023.” Am. Compl. ¶ 44. In paragraph 56, the Olszewskis allege that the “protection order ended on

September 1, 2023.” Id. ¶ 56. The Olszewskis do not explain this apparent contradiction, but whether

the no contact order ended on January 19, 2023 or September 1, 2023 does not affect this Court’s

ruling.

the alleged constitutional violation took place under color of state law, id. at 67, the

Olszewskis maintain that these judicial statements reveal that the Court failed to

apply the correct standard for review of a motion to dismiss.

II. THE PARTIES’ POSITIONS

A. The Plaintiffs’ Motions

In their motions, the Olszewskis ask this Court to reconsider its decision under

Federal Rule of Civil Procedure 59(e) and to allow them to amend their complaint

under Federal Rule of Civil Procedure 15(a)(2). Pls.’ Mot. at 1.

First, the Olszewskis say that the Court failed to obey the directive to accept

their allegations as true in determining whether the factual allegations support the

reasonable inference that the Defendants were liable for the alleged misconduct. Id.

at 2. They give one example, where the Court wrote, “[e]ven taking Mr. Olszewski at

his word” which they say betrays an “erroneous legal approach.” Id. The Olszewskis

also point to the Court’s stated assumption that his raising of local grievances to the

town board was a protected activity, Order at 61, and its conclusion that it need not

address whether the alleged constitutional violation took place under color of state

law, id. at 67, the Olszewskis maintain that these judicial statements reveal that the

Court failed to apply the correct standard for review of a motion to dismiss. Pls.’ Mot.

at 2-3.

Second, the Olszewskis argue that the Court committed error by failing to

address “the central issue of qualified immunity.” Pls.’ Mot. at 3-4 (citing Cnty. of

Sacramento v. Lewis, 523 U.S. 833 (1997), Foote v. Ludlow Sch. Comm.,4 128 F.4th

336 (1st Cir. 2025); Green v. Thomas,5 734 F. Supp. 3d 532 (S.D. Miss. 2024), aff’d in

part and reversed in part 129 F.4th 877 (5th Cir. 2025)).

Third, the Olszewskis say that the Court erred in failing to address their claim

that the town and Mr. Hutchins violated Mr. Olszewski’s substantive due process

rights, saying that the Court should not have required them “to use the magical word

‘substantive due process.’” Id. at 4-7. The Olszewskis maintain that the Court should

have construed their amended complaint liberally to allege a substantive due process

claim as well as “new Fourth and Fifth Amendment claims not plead except by brief.”

Id. at 6-7.

Fourth, the Olszewskis ask for leave to amend their amended complaint to

“plead more fully the retaliatory First Amendment violation.” Id. at 7-12. They

complain that the Court’s characterization of Mr. Hutchins’s threats is too “tepid” and

“totally dilutes and excuses a potentially [criminal] and continuing threat.” Id. at 11.

Fifth, the Olszewskis maintain that the amended complaint as it exists “if

accepted as true” provides “strong grounds to establish motivation by Defendants to

conceal wrongdoing and to retaliate against Plaintiff.” Id. at 12. They point to the

“temporal proximity” between Mr. Olszewski’s protected speech and Mr. Hutchins’s

statement that he was unstable and a threat. Id. They also aver that the Court’s

4 The Plaintiffs cite Feet v. Ladle School Committee, but the volume and page lead to Foote v.

Ludlow School Committee, which the Court assumes to be the intended case.

5 The Plaintiffs cite Green v. Thomas, No. 32-3-CV-126-CWR-ASH, pp 41-62, affirmed in part no

24-60314 (5th Cir. 2025). The Court found the case of Green v. Thomas, 734 F. Supp. 3d 532 (S.D.

Miss. 2024), aff’d in part and reversed in part 129 F.4th 877 (5th Cir. 2025), which the Court cited in

the text.

decision “neglects to credit Plaintiff’s uncovering mismanagement of $200,000 public

funds during the same time period as his charging of road maintenance violations, as

a factor likely to result in retaliation.” Id. at 13-14.

Sixth, the Olszewskis criticize the Court’s reliance on the harassment order “as

establishing ground for ‘no contact’ rather than a silencing of Plaintiff,” arguing that

the Court “ignores that Defendants obtained a Protection from Harassment

proceedings without regard to their obligations under First Amendment by making

the Town Hall the place of employment of the Selectmen and Selectwomen’s place of

employment as well as the fact that a companion Order was issued against Hutchins

and the Town.” Id. at 14. The Olszewskis say that “[t]o the extent not clearly

indicated in pleadings, Plaintiff would establish this fact on Amendment.” Id.

Seventh, the Olszewskis contend that the order is flawed because it concluded

that the change in town policy was due not to retaliation against Mr. Olszewski but

to its determination that the town office was not a public forum. Id. at 15-16.

Eighth, the Olszewskis claim that whether the town office is a public forum is

a factual, not a legal issue. Id. at 16.

Finally, Ms. Olszewski argues that she should have been allowed to proceed

with her loss of consortium claim, and to the extent it requires greater specificity, she

should be allowed to amend the complaint to be more specific. Id. at 16-17.

B. The Defendants’ Opposition

In the Defendants’ opposition to the Olszewskis’ motions, the Defendants

contend that the Olszewskis have failed to establish “an intervening change in

controlling law, a clear legal error, or newly discovered evidence” that “warrants

modification of the judgment.” Defs.’ Opp’n at 2. The Defendants maintain that the

Olszewskis have failed to meet the standards for a Rule 59(e) motion because they

have failed to identify “an intervening change in controlling law” or “newly discovered

facts previously unknown to them.” Id. at 3. Thus, they assert that the only ground

for the Olszewskis’ Rule 59(e) motion is “clear error.” Id. The Defendants dispute

the Olszewskis’ contention that the Court failed to view their first amended complaint

in “their preferred way.” Id. at 3-4. They reject the Olszewskis’ assertion that the

Court should have considered a substantive due process claim that the Olszewskis

failed to plead or adequately present. Id. at 4. The Defendants dismiss the

Olszewskis’ complaints about the Court’s failure to address qualified immunity,

noting that because the Court concluded that they had failed to properly allege a

constitutional violation, qualified immunity did not apply. Id. at 5-6. Finally, the

Defendants say that Ms. Olszewski cannot “contest the Court’s observation that there

are no factual allegations in the amended complaint that support [her] claim.” Id. at

6.

Regarding the Olszewskis’ request for leave to file an amended complaint, the

Defendants proffer that Rule 15(a) “simply does not apply following entry of a

judgment that has not been vacated under some other rule or on appeal.” Id. at 7

(citing Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006), Pushor v. Mt.

Washington Observatory, Inc., No. 2:17-cv-354-NT, 2018 WL 3478892, at *2 (D. Me.

July 19, 2018) and Quirion v. United States, No. 1:05-cv-00006-JAW, 2012 WL

5903818, at *2 (D. Me. Nov. 26, 2012)).

C. The Plaintiffs’ Reply

In their reply, the Olszewskis reiterate their view that the Court should grant

the motion to amend the complaint. Pls.’ Reply at 1. They argue that justice requires

the Court to allow the amendment and maintain there would be no prejudice to the

Defendants. Id.

Next, the Olszewskis press their contention that the Court should reconsider

its order of dismissal to prevent a “manifest injustice” and pursuance of the “interests

of justice.” Id. at 2. They argue that the order of dismissal “does not square with the

law governing decision of a Rule 12(b)(6) Motion.” Id. They again point out that the

Court used the language, “[e]ven taking Mr. Olszewski at his word,” which they

reiterate reveals a “[b]egrudging concession” about the Plaintiff’s averments, the

“opposite of what the law demands.” Id. They argue that if the Court had taken Mr.

Olszewski at his word, it would have “accepted Plaintiffs’ averments that Hutchins,

from March 19, 2022 forward made false public posts and statements, . . . filed false

and perjurious complaints, . . . culminating in provocation and threats to break him

down and blow apart a person he know was, and targeted because he was, mentally

disabled.” Id. at 3 (emphasis in original). The Olszewskis also criticize the Court’s

description of Mr. Hutchins’s threats as an “unfortunate remark,” thereby

substituting its own judgment for the facts. Id.

Regarding causation, the Olszewskis distinguish Schatz v. Republican State

Leadership Committee, 669 F.3d 50, 55 (1st Cir. 2012), a case cited by the Defendants,

stressing that “where there is a choice between a reasonable inference favorable to

Plaintiffs and an inference that is unfavorable the Court must draw the favorable

inference.” Pls.’ Reply at 4.

Turning to municipal immunity, the Olszewskis say that the Defendants’

argument contradicts itself because they assert that it was not necessary for the

Court to decide municipal immunity, but that municipal immunity provides an

affirmative defense to their claims. Id. at 5-6.

Finally, the Olszewskis maintain that the Court erred in dismissing Ms.

Olszewski’s loss of consortium claim. Id. at 6.

III. LEGAL STANDARDS

A. Rule 59(e) Motion

Federal Rule of Civil Procedure 59(e) provides:

(e) Motion to Alter or Amend a Judgment. A motion to alter or

amend a judgment must be filed no later than 28 days after the entry of

judgment.

Fed. R. Civ. P. 59(e). “[A] motion ‘asking the court to modify its earlier disposition of

the case because of an allegedly erroneous legal result is brought under Federal Rule

of Civil Procedure 59(e).’” United States v. $23,000 in United States Currency, 356

F.3d 157, 165 n.9 (1st Cir. 2004). Rule 59(e) “includes motions for reconsideration.”

11 CHARLES ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL PRACTICE

AND PROCEDURE § 2810.1 (2012 ed.). “There are four basic grounds upon which a Rule

59(e) motion may be granted.” Id. They are: (1) the correction of a manifest error of

law or fact upon which the judgment is based, (2) newly discovered or previously

unavailable evidence, (3) the prevention of a manifest injustice, and (4) an

intervening change in controlling law. Id. As the Court reads the Plaintiffs’ motion,

it rests primarily on manifest error of law or fact and prevention of manifest injustice

grounds. Pls.’ Mot. at 1-17.

“The granting of a motion for reconsideration is an extraordinary remedy

which should be used sparingly.” Salmon v. Lang, 57 F.4th 296, 323 (1st Cir.

2022) (quotation omitted); accord Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st

Cir. 2006) (“Unless the court has misapprehended some material fact or point of law,

such a motion is normally not a promising vehicle for revisiting a party’s case and

rearguing theories previously advanced and rejected”). “To prevail on such a motion,

‘a party normally must demonstrate either that new and important evidence,

previously unavailable, has surfaced or that the original judgment was premised on

a manifest error of law or fact.’” Caribbean Mgmt. Grp., Inc. v. Erikon LLC, 966 F.3d

35, 44-45 (1st Cir. 2020) (quoting Ira Green, Inc. v. Mil. Sales & Serv. Co., 775 F.3d

12, 28 (1st Cir. 2014)).

B. Post-Judgment Motions to Amend Complaints

In their motion for reconsideration, the Olszewskis ask the Court for leave to

amend their complaint. With their motion for reconsideration, the Olszewskis filed

a motion to amend their complaint. “[A] district court cannot allow an amended

pleading where a final judgment has been rendered unless that judgment is first set

aside or vacated pursuant to Federal Rule of Civil Procedure 59 or 60.” Guilfoile v.

Shields, 913 F.3d 178, 195 n.17 (1st Cir. 2019) (quoting Maldonado v. Dominguez,

137 F.3d 1, 11 (1st Cir. 1998)). If the Olszewskis had filed a standalone motion to

amend without filing a motion for reconsideration, the motion to amend would have

been procedurally defective. Willis v. Vericel Corp., No. 23-cv-10830-NMG, 2024 U.S.

Dist. LEXIS 64195, at *1-2 (D. Mass. Apr. 8, 2024) (describing a standalone post-

judgment motion to amend as “procedurally defective”).

The Court views the Olszewskis’ motion to amend complaint in two ways.

First, it has considered the motion to amend as intertwined with the Olszewskis’

arguments for reconsideration, and next, it has assumed that the Olszewskis are

filing the motion to amend complaint on the assumption that the Court will grant

their motion for reconsideration. At the same time, if the Court denied the motion

for reconsideration, the motion to amend would fall of its own weight.

IV. DISCUSSION

A. The Motion for Reconsideration

1. Failure to Accept the Plaintiffs’ Allegations and

Reasonable Inferences as True

In their motion and reply, the Plaintiffs repeatedly contend that the Court

failed to obey the admonition of Rule 12(b)(6) because it failed to accept the Plaintiffs’

allegations as true and draw reasonable inferences from them. Simply put, the

Plaintiffs are wrong. First, in its opinion, the Court correctly quoted the first of the

“two-step analysis” the First Circuit requires of a district court to rule on a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6), including the obligation to

accept the complaint’s factual allegations:

This is a “two-step analysis. Cardigan Mountain Sch. v. N.H. Ins. Co., 787

F.3d 82, 84 (1st Cir. 2015). “First the court must distinguish ‘the complaint’s

factual allegations (which must be accepted as true) from its conclusory legal

allegations (which need not be credited).” García-Catalán [v. United States],

734 F.3d [100,] 103 [1st Cir. 2013)] (quoting Morales-Cruz [v. Univ. of P.R.],

767 F.3d [220,] 224 [(1st Cir. 2012)].

Order at 56. Thus, to credit the Plaintiffs’ argument, the Court would have to

conclude that despite knowing the correct standard for ruling on Rule 12(b)(6)

motions, the Court either deliberately or unconsciously applied a different standard,

refusing to accept the Plaintiffs’ allegations as true. The Court did no such thing.

The Plaintiffs’ chief issue on this point is the Court’s use of the phrase, “[e]ven

taking Mr. Olszewski at his word,” when discussing Mr. Olszewski’s First

Amendment retaliation claim. Id. at 63. Here, as the Court noted in its order, the

Court was discussing whether Mr. Olszewski’s charge that he raised issues of

municipal concern and “in response to this protected activity,” Selectman Hutchins

“retaliated in various ways, including by threatening to have Mr. Olszewski jailed,

refusing to give Mr. Olszewski certain emails he requested as part of his MHRC

complaint, sending him aggressive e-mails and messages through online platforms,

obtaining a protection from harassment order, and imposing a ‘no recording’ policy at

the Town Office.” Id. at 59. Thus, as the Court wrote, it construed Mr. Olszewski’s

allegation as a charge that “Defendants retaliated against [him] for exercising his

First Amendment rights, through various actions intended to deter, stop, and chill

the Plaintiff’s speech.” Id. at 58-59.

In the order, the Court quoted First Circuit caselaw that allows claims of

retaliation for the exercise of First Amendment rights under 42 U.S.C. § 1983. Id. at

59. The Court then discussed the requirement that a plaintiff in a such a retaliation

claim must establish that his speech was protected and that there was “a causal

connection between the alleged protected speech and the allegedly retaliatory

response.” Id. at 60 (quoting Goldstein v. Galvin, 719 F.3d 16, 30 (1st Cir. 2013)).

The Court observed that to prove causation between the speech and the retaliation,

a plaintiff must “show[] that the plaintiff’s conduct was a ‘substantial’ or ‘motivating’

factor in bringing about the allegedly retaliatory action.” Id. (quoting Goldstein, 719

F.3d at 30). The Court further quoted the United States Supreme Court’s

interpretation in Nieves v. Bartlett, 587 U.S. 391, 399 (2019) and Hartman v. Moore,

547 U.S. 250, 259-60 (2006) that held that the retaliatory animus prong must be the

“but-for” cause of the plaintiff’s injuries. Id.

Applying these principles to the facts alleged in the amended complaint, the

Court wrote first that it was assuming but not deciding that Mr. Olszewski’s raising

of local grievances was a protected activity under the First Amendment. Id. at 61.

The Olszewskis criticize this language, saying that the Court “appears to question”

whether Mr. Olszewski’s grievances were protected activity. Pls.’ Mot. at 2-3. But

the Court plainly meant exactly the opposite. In their motion to dismiss, the

Defendants seem to acknowledge that some of Mr. Olszewski’s comments were about

local matters, but they also maintained that “the law does not require that a member

of the public have unlimited access to Town government, or any particular person in

Town government.” Defs.’ Mot. to Dismiss at 8. Given the potential issue as to the

extent to which Mr. Olszewski’s comments were protected speech, the Court was

merely clarifying that it was not reaching that issue and instead, consistent with its

Rule 12(b)(6) obligations and Mr. Olszewski’s allegations, was treating Mr.

Olszewski’s comments as protected speech. The sentence the Plaintiffs now protest

was therefore in favor of the Plaintiffs, not in derogation of their claims.

Next, the Plaintiffs focus on the “[e]ven taking Mr. Olszewski at his word”

phrase in the order. Again, context matters. In the amended complaint, Mr.

Olszewski alleged that Mr. Hutchins had claimed that Mr. Olszewski had sent him

over 400 threatening and aggressive emails and at the same time conceded that Mr.

Hutchins had received a protection from harassment order against him. Compare

Am. Compl. ¶ 18, with ¶¶ 45-46. Mr. Olszewski claimed that Mr. Hutchins’s

allegation of four hundred emails was false. Am. Comp. ¶ 18. The allegation that

Mr. Hutchins lied when he claimed that Mr. Olszewski sent him hundreds of

threatening and aggressive emails was potentially contradicted by the fact that a

judge had issued a protective order in favor of Mr. Hutchins. Here, the Court was

merely assuring Mr. Olszewski that, even though some allegations in the amended

complaint could be viewed as equivocal or contradictory, the Court was taking him at

his word that Mr. Hutchins had lied about receiving hundreds of emails from him,

just as Rule 12(b)(6) requires.

In sum, on this issue, the Court concludes that the Olszewskis are wrong. The

Court was aware of its obligation to accept the allegations in their amended complaint

as true and it strictly adhered to this fundamental legal requirement.

2. Qualified Immunity

In its order, the Court determined that the Olszewskis failed to state a federal

cause of action against the town of Dover-Foxcroft or Barry Hutchins without regard

to whether the principles of qualified immunity applied to them. As the Court

concluded that it was not necessary to reach the issue of qualified immunity to decide

the motion, the Court did not reach qualified immunity. The Court is unclear why it

erred in failing to discuss a non-dispositive issue and render an advisory and

unnecessary opinion.

3. Substantive Due Process

In the Olszewskis’ motion, they argue that the Court should have addressed

their claim that the Defendants violated their substantive due process rights. Pls.’

Mot. at 4-7. Conceding that they did not use the “magical word,” the Olszewskis

characterize the failure of the Court to rule on their substantive due process claim as

an elevation of form over substance. Id. at 4. They also object to the Court’s

interpretation of their assertion of Fourth and Fifth Amendment claims in their

responsive memorandum as erroneously restricting their well pled averments and

impermissibly restricting the scope of § 1983. Id. at 7.

Here, neither the Plaintiffs’ eighteen-page complaint nor their twenty-two-

page amended complaint contains the phrase, substantive due process, Compl. at 1-

18; Am. Compl. at 1-22, and the Defendants’ original motion to dismiss did not

mention substantive due process. Defs.’ Mot. to Dismiss at 1-20. In a footnote in their

motion to dismiss, the Defendants noted that the allegations in the amended

complaint “refer specifically to a violation of Mr. Olszewski’s rights to freedom of

expression and to petition” but observed that “the reference to his Fourteenth

Amendment rights is simply because the Fourteenth Amendment adopted and

applied the First Amendment to the states.” Id. at 7 n.3.

In the Olszewskis’ response, however, they confirmed that they alleged First

Amendment violations in their amended complaint but also asserted that they

alleged “First, Four, Fifth, and Fourteenth Amendments, the Maine Constitution,

and the Maine Civil Rights Act, and the Maine Hu[m]an Rights Act. Plaintiff does

not just rely on the First Amendment.” Pls.’ Opp’n to Mot. to Dismiss at 7. The

Olszewskis described their substantive due process claim as based on “acts as

horrendous as the coercive threats of Hutchins.” Id. They say that Mr. Hutchins’s

actions “should shock and does shock the conscience and offend any ‘sense of justice.’”

Id. at 8 (quoting Breithaupt v. Abram, 352 U.S. 432, 435-36 (1957)).

In their reply, the Defendants objected to the inclusion of theories of liability

not alleged in the amended complaint. Defs.’ Mot. to Dismiss Reply at 1. They said

that the amended complaint makes only “conclusory references to the Fourteenth

Amendment in relation to the Plaintiff’s speech and petitioning activity.” Id. at 2.

Quoting the standards for a substantive due process claim as set forth in Clark v.

Boscher, 514 F.3d 107, 112 (1st Cir. 2008), they maintained that the allegations in

the first amended complaint do not state a substantive due process violation. Defs.’

Mot. to Dismiss Reply at 2.

“It is blackletter law that a plaintiff is the ‘master of the claim’ and may make

strategic decisions about its framing and purpose.” United States v. Newman, No.

2:22-cv-00373-JAW, 2025 U.S. Dist. LEXIS 131866, at *15 (D. Me. July 11, 2025);

Ortiz-Bonilla v. Federacion de Ajedrez de P.R., Inc., 734 F.3d 28, 36 (1st Cir. 2013)

(“The plaintiff is the ‘master of the claim’”). In other words, “it is the party suing, not

the party sued, who enjoys the right to frame the claims asserted in a complaint.”

Haley v. City of Boston, 657 F.3d 39, 49 (1st Cir. 2011). Here, both the Court and the

Defendants relied on what the Olszewskis alleged as theories for recovery in their

amended complaint, not the theories they posited in their memorandum to deflect a

pending motion to dismiss.

The Olszewskis have not explained why in evaluating the motion to dismiss

the complaint, the Court should have accepted the newly propounded theories in their

legal memorandum not found in their amended complaint. Allegations in a complaint

are meant “to ‘give the defendant fair notice of what the . . . claim is and the grounds

on which it rests.’” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting

Conley v. Gibson, 355 U.S. 41, 47 (1957)). Thus, it has long been the rule that

assertions in a lawyer’s memorandum are not the same as allegations in a complaint.

Ryan v. Newark Grp., Inc., 2025 U.S. Dist. LEXIS 267720 (D. Mass. Dec. 30. 2025);

Barrett v. Lombardi, 239 F.3d 23, 27 (1st Cir. 2001) (“allegations in a lawyer’s brief

or legal memorandum are insufficient, even under the relatively relaxed prima

facie standard, to establish jurisdictional facts”); see Gulf Oil Ltd. P’Ship v. Petro.

Mktg. Grp., 308 F. Supp. 3d 453, 462 n.8 (D. Mass. 2018) (disregarding plaintiff’s

assertions made in its brief when no similar allegations appeared in the complaint);

Folan v. Santander Consumer USA Inc., No. 1:25-cv-11341-JEK, 2025 WL 1707231,

at *3 n.8 (D. Mass June 18, 2025) (declining to consider assertions raised only in

plaintiff’s reply to defendant’s opposition brief and not alleged in the complaint); Ortiz

v. Jimenez-Sanchez, 98 F. Supp. 3d 357, 366 n.5 (D.P.R. 2015) (“[T]he plaintiffs’

oppositions introduce a plethora of new allegations and legal theories. But the

plaintiffs cannot, of course, add allegations or claims by furnishing them for the first

time in an opposition to a motion to dismiss”).

4. Amended Complaint

Even assuming the Court could have intuited a substantive due process claim

from the sparse allegations in the Olszewskis’ response, the Court is not convinced

that Mr. Hutchins’ aggressive and vulgar emails are sufficient to establish their new

claim of a violation of substantive due process. In their reply to the Olszewskis’

opposition to their motion to dismiss, the Defendants quote the First Circuit’s

formulation of a substantive due process claim in Clark v. Boscher: the plaintiffs must

establish “that they suffered the deprivation of an established life, liberty, or property

interest, and that such deprivation occurred through governmental action that shocks

the conscience.” Defs.’ Mot. to Dismiss Reply at 2 (quoting Clark, 514 F.3d at 102).

The Olszewskis correctly cite the recent First Circuit case of Wadsworth v.

Nygren, 129 F.4th 38, 52 n.8 (1st Cir. 2025), for the proposition that non-physical

conduct could shock the conscience. But the First Circuit also noted in Wadsworth

that it has “yet to encounter non-physical conduct that rises to that level.” Id. The

Wadsworth Court cited Souza v. Pina, 53 F.3d 423 (1st Cir. 1995), where a district

attorney was alleged to have driven a citizen to suicide by publicly and repeatedly

accusing him of being the serial murderer of local women, and Pittsley v. Warish, 927

F.2d 3 (1st Cir. 1991), where police officers told little children that they would never

see their mother’s live-in partner again and refused to allow them to hug and kiss

him goodbye when they arrested him. In neither case did the First Circuit find that

the conduct shocked the conscience. Like the First Circuit in Wadsworth, Souza, and

Pittsley, the Court is skeptical that Mr. Hutchins’s statements to Mr. Olszewski meet

the high standard the law demands for a non-physical substantive due process claim.

5. Temporal Proximity and the Harassment Order

In their motion, the Olszewskis point to the temporal proximity among Mr.

Olszewski’s protected speech, Mr. Hutchins’s nasty emails, and the town’s actions in

barring his presence at the town office as prima facie evidence that the Defendants’

actions were in retaliation for his protected speech. Pls.’ Mot. at 12-15. Although the

amended complaint is not a model of clarity, the Plaintiffs allege that Mr. Olszewski

began to bring matters of public concern, such as impassable road conditions, to the

attention of the town selectmen in January 2022. Am. Compl. ¶ 13. On March 19,

2022, Mr. Hutchins responded by asserting that Mr. Olszewski was “unstable and

clearly showing himself as a threat and a danger and threat to the community” and

continued to badger Mr. Olszewski. Id. ¶ 15. At the same time, Mr. Hutchins asked

Mr. Olszewski for reports confirming his allegations about poor road material, and

Mr. Olszewski provided the reports to Mr. Hutchins. Id. ¶ 17.

Matters escalated in April 2022 with Mr. Olszewski charging that the town

manager had paid Elwood Edgerly, the Chair of the Board of Selectmen, over

$200,000 in grant money and that the town had spent in excess of $10,000 of taxpayer

money for cakes, pastries, and party supplies for personal celebrations. Id. ¶ 23. Mr.

Olszewski also made FOAA requests for town records during this time, which the

town and Mr. Hutchins failed to respond to. Id. ¶¶ 19, 21.

During this period, Mr. Hutchins became more aggressive in his responses,

falsely claiming at an April 11, 2022 town meeting that Mr. Olszewski had sent him

over 400 “threatening and aggressive emails,” id. ¶ 18, threatening in a vulgar email

dated April 13, 2022 to pursue criminal charges against Mr. Olszewski, id. ¶ 24, and

attempting to get the Chief of Police to arrest Mr. Olszewski for sending the FOAA

request. Id. ¶ 25. At the May 9, 2022 selectmen meeting, Mr. Olszewski publicly

demanded Mr. Hutchins’s resignation, and Mr. Hutchins moved aggressively toward

him at the meeting and attempted to provoke a physical confrontation in the parking

lot. Id. ¶¶ 28-29. In May, Mr. Olszewski accused Mr. Hutchins of violating his First

Amendment rights and Mr. Hutchins responded that he had his own First

Amendment rights. Id. ¶¶ 30-31. Then on June 10, 2022, Mr. Hutchins wrote an

extremely aggressive email to Mr. Olszewski, saying that he likes to get into the

minds of weak people and “break them down little by little at a time until I am ready

to completely blow them apart.” Id. ¶ 32.

Things came to a head when Mr. Olszewski and Mr. Hutchins filed competing

protection from harassment petitions against each other in the Maine District Court

in June 2022. Mr. Olszewski says that he filed his petition on June 13, 2022 and that

Mr. Hutchins filed his two days before the protection from abuse hearing. Id. ¶¶ 39,

41. The amended complaint says that Judge Faircloth of the Maine District Court

presided over the June 30, 2022 hearing. Id. ¶¶ 43-45. The amended complaint

described the result of the dueling protection from harassment petitions:

At the request of Hutchins, on behalf of himself and Dover-Foxcroft, the

court imposed a no contact provision, which legally barred Plaintiff from

attending meetings of the Select Board or going to the Town Office at all

during the time period of the harassment order. While Plaintiff was not

allowed in the Town Office because of the order, The Town made no

provision for Plaintiff to conduct Town office business, vote in elections,

or attend Town Select Board Meetings. The omission on the part of The

Town effectively barred Plaintiff from all town business including the

right to vote.

Id. ¶ 45. In response to Judge Faircloth’s apparent ruling in favor of Mr. Hutchins

and the town, the Olszewskis alleged that Judge Faircloth had a conflict of interest

and should have recused herself from the proceeding because she had a professional

relationship with Attorney Benjamin Cabot, who was representing Mr. Hutchins. Id.

¶ 43. The Olszewskis also alleged that Judge Faircloth’s no contact order was the

direct and proximate result of Mr. Hutchins’ “false testimony and allegations that

Defendant had been ordered or noticed not to harass or have contact with Hutchins.”

Id. ¶ 46. Mr. Olszewski alleged that in June 2022, he “retreated from involvement

and ceased his vigorous attempts to be involved in Town affairs and attending of

Select Board meetings.” Id. ¶ 55. On January 19, 2023, Judge Faircloth mooted all

motions going forward, effectively concluding the matter. Id. ¶ 44.

Before Judge Faircloth’s January 19, 2023 dismissal, the next alleged event in

the amended complaint took place on December 13, 2022, when Mr. Olszewski went

to the town office and complained that Judge Faircloth’s no contact order prevented

him from coming to the town office and attending selectmen meetings. Id. ¶ 47.6 Mr.

Olszewski wished to attend an upcoming selectmen meeting because he wished to

voice his opinions about a proposal to forbid recording selectmen meetings that was

on the agenda at the next meeting. Id. ¶ 47. Mr. Olszewski’s short visit to the Town

Office in December 2022 precipitated a criminal investigation of Mr. Olszewski. Id.

¶ 52.

After the January lifting of the no contact order and in retaliation for Mr.

Olszewski’s filing a Maine Human Rights Act complaint against Mr. Hutchins, Mr.

Olszewski alleged that in March 2023, the Chief of Police connived with Mr. Hutchins

to renew criminal charges against Mr. Olszewski. Id. ¶ 51-52. But it is unclear from

the complaint whether any new criminal charges were actually instituted against Mr.

Olszewski. Next in September 2023, again after the no contact order had been lifted,

the Board of Selectmen imposed a five-minute speaking limit at a public meeting

when Mr. Olszewski attempted to speak. Id. ¶ 56.

6. The July 29, 2025 Order and the Allegations in the

Amended Complaint

In ruling on its July 29, 2025 order of dismissal, the Court was faced with a

somewhat inchoate and sprawling set of allegations involving a large cast of

6 Mr. Olszewski also says that on December 13, 2022, he was falsely labeled a pedophile by a

man named Christopher Johnson, and Mr. Olszewski says that Mr. Hutchins was the source of Mr.

Johnson’s allegations. Am. Compl. ¶ 47.

individuals from the town of Dover-Foxcroft. These included all the members of the

Board of Selectmen, the Chief of Police, the Town Manager, and several Dover-

Foxcroft police officers. Id. ¶ 4. But the heart of the complaint was the bad blood

between Mr. Olszewski and Mr. Hutchins.

Here, the amended complaint amply reflected Mr. Hutchins’ exceedingly rude

and nasty emails to Mr. Olszewski, including one that Mr. Olszewski interpreted as

a threat of physical violence. There was certainly evidence of excessive animosity

between Mr. Hutchins and Mr. Olszewski, and Mr. Hutchins’ language is obviously

deplorable as an elected public official. But the Court focused on what the complaint

revealed as to why Mr. Hutchins acted so egregiously against Mr. Olszewski. Here,

the amended complaint alleged that Mr. Olszewski and Mr. Hutchins faced off in

Maine State District Court before Judge Faircloth on June 30, 2022, and the amended

complaint alleges that the result of the evidentiary hearing was that Judge Faircloth

issued a no contact order against Mr. Olszewski. The amended complaint failed to

mention that Judge Faircloth issued a similar no contact order against Mr. Hutchins.

From the Court’s perspective, there were two consequences from the Faircloth

order. The first is that it broke the causation link between Mr. Olszewski’s First

Amendment claims and Mr. Hutchins’ nasty emails. Having determined that Mr.

Olszewski’s actions against Mr. Hutchins merited a no contact order and without

evidence that Mr. Hutchins’ actions against Mr. Olszewski did the same, the Court

had little choice but to conclude that there was no probative evidence that Mr.

Hutchins had retaliated against Mr. Olszewski for his exercise of First Amendment

rights. To the contrary, from the allegations in the amended complaint, which the

Court accepted as true, it was Mr. Olszewski alone who had merited a no contact

order following a full evidentiary hearing.

The second effect of the no contact order was that what followed from late June

2022 to at least January 2023 and perhaps September 2023 was the result of the no

contact order, not the result of Mr. Hutchins’ First Amendment retaliation. For the

period following January 2023 or September 2023, when the no contact order was

lifted, the allegation that the Chief of Police initiated a criminal investigation of Mr.

Olszewski did not on its face state a complaint against the Board of Selectmen or Mr.

Hutchins, since there is no allegation that they controlled the law enforcement

function. More significantly, as the Court understands the allegation against the

Police Chief, the reason for the investigation was Mr. Olszewski’s potential violation

of the no contact order, not his criticisms of the town. The final allegation that the

Board illegally limited presentations to five minutes at a meeting in September 2023

reflects the Board’s control of a public meeting, not limited to Mr. Olszewski but

applicable to the general public, and the claim of a First Amendment violation from

a time limit on all public presentations, including Mr. Olszewski, is unpersuasive.

7. Town Office as Public Forum

The Olszewskis complain that the town considered his presence at the town

office on December 13, 2022 and the town’s adoption of a non-recording policy as

violations of his First Amendment rights. They repeat their position in their motion

for reconsideration. The Court reviewed its discussion of this issue in its dismissal

order, Order at 63, including its footnote 12, and has nothing to add. See McBreairty

v. Sch. Bd. of RSU22, 616 F. Supp. 3d 79, 90-93 (D. Me. 2022) (discussing restrictions

imposed by a school board); Carlow v. Mruk, 425 F. Supp. 2d 225, 247-48 (D.R.I. 2006)

(discussing a prohibition against videotaping the meeting of a township planning

commission).

8. Loss of Consortium

Ms. Olszewski asks the Court to reconsider its dismissal of her loss of

consortium claim. The Court declines to change the dismissal because there is a

better rational for dismissal of her claim than her failure to specify her loss. Although

a loss of consortium claim is independent under Maine law and may be brought and

settled separately, it is also “derivative because it arises from the same act that gave

rise to the underlying claim and is therefore subject to the same rules and

limitations.” Steele v. Botticello. 2011 ME 72, ¶ 17, 21 A.3d 1023. Once the Court

determined that Mr. Olszewski’s federal claims failed, Ms. Olszewski’s loss of

consortium claim also failed for her federal claims. Grant v. Foster Wheeler, 2016 ME

85, ¶ 14 n.5, 140 A.3d 1242.

B. The Motion to Amend Complaint

Embedding within their motion for reconsideration, the Olszewskis reveal for

the first time that instead of issuing a no contact order against them only, Judge

Faircloth issued a no contact order against Mr. Hutchins and the town as well:

Plaintiff, granted petition to amend, would show the Order was against

the Town and Hutchins also.

Pl.’s Mot. at 14 (citing [Second] Am. Compl. ¶ 44, Dover Foxcroft DVDC PA 22-0035,

DVDC PA 22-0039).7 The new allegation is set forth in paragraph 43 of the Plaintiffs’

second amended complaint:

On June 13, 2022, Plaintiff then petitioned the Maine District Court in

Dover-Foxcroft alleging that Hutchins, a Selectman for the Town,

engaged in a continuing course of conduct to harass and injure Plaintiff

and to retaliate against him for the exercise of his First Amendment and

civil rights with particular expressed intent to break Plaintiff down due

to his disability. Plaintiff was granted an order prohibiting Defendant

Hutchins from harassing him. Dover-Foxcroft Maine District Court,

DVDC 22-0035.

Second Am. Compl. ¶ 43.

The Court agrees that it would have been helpful background if the Olszewskis

had revealed in their original or amended complaint that Judge Faircloth had issued

no contact orders against both Mr. Olszewski and Mr. Hutchins. From their original

allegations, it appeared that having presided over an evidentiary hearing concerning

the dispute between Mr. Olszewski and Mr. Hutchins, Judge Faircloth had ruled in

favor of Mr. Hutchins and against Mr. Olszewski and issued a no contact order solely

against Mr. Olszewski. Am. Compl. ¶¶ 45-46. The Court’s interpretation was

buttressed by the Olszewskis’ claim that Judge Faircloth should have recused herself

because of her professional relationship with Attorney Benjamin Cabot, an allegation

consistent with Mr. Olszewski’s dissatisfaction with Judge Faircloth’s ruling. Am.

Compl. ¶ 43.

7 The Olszewskis cite the wrong paragraph of the second amended complaint, but the Court

found the relevant allegation in the proposed amended complaint not at paragraph 44, but at

paragraph 43.

If the Olszewskis had correctly presented the Faircloth order in their amended

complaint, the Court would not have concluded that Judge Faircloth had ruled in

favor of Mr. Hutchins and against Mr. Olszewski in her June 2022 order, and it would

not have relied on this fact in making its decision on the motion to dismiss. Although

the ruling would have been closer, it would not have changed the result. The Court

is still not convinced that it erred when it dismissed their lawsuit.

The first problem is that after an evidentiary hearing in June 2022, Judge

Faircloth concluded that both Mr. Olszewski and Mr. Hutchins merited mutual no

contact orders. What the Court still faces is a set of allegations that Mr. Olszewski,

as a concerned citizen of Dover-Foxcroft, made a series of inquiries about the conduct

of town affairs and was met with an extraordinary barrage of vulgar invective from

one of the members of the Board of Selectmen. While the Court has expressed its

emphatic disapproval of Mr. Hutchins’s language, the Court is not convinced that

rude, even vulgar language from an elected leader to a citizen provides the basis for

a § 1983 claim, particularly after a state judge, upon hearing the countervailing

allegations, effectively ruled both were responsible for their separate roles in the

dispute.8

The second problem is that, as the Court understands the Olszewskis’

allegations, the gravamen of their complaint is that Mr. Hutchins and the town took

actions against Mr. Olszewski in retaliation for his exercise of his First Amendment

8 The Court expressly did not rule on the adequacy of the Olszewskis’ state claims. Order at 67-

69. The Olszewskis are free, if they wish to do so, to file a complaint in state court with the same

factual allegations unconstrained by the restrictions federal law imposes on § 1983 claims.

rights. Apart from Mr. Hutchins’s aggressive emails, the amended complaint claims

that the town retaliated against Mr. Olszewski by (1) initiating a no recording policy

in December 2022, Am. Compl. ¶ 47, (2) barring him from town business after the no

contact order, id. ¶ 47, (3) beginning a Chief of Police investigation against him in

March 2023, id. ¶ 51, and (4) attempting to silence him at a Board of Selectmen

meeting on October 23, 2023 by imposing a five-minute speaking rule. Id. ¶ 56.

But the Court has concluded that the imposition of generally applicable no

recording and five-minute speaking limitations policies do not amount to a violation

of First Amendment rights, and furthermore, based on the allegations in the amended

complaint, the no contact order was the cause of both Mr. Olszewski’s lack of access

to the town office and the Chief’s criminal investigation of him for violating the no

contact order. The bottom line is that the allegations in the second amended

complaint, if allowed, would not change the Court’s ruling. Thus, although the Court

considered the new allegations in the second amended complaint in ruling on the

motion for reconsideration, the Court concluded that the Olszewskis failed to

demonstrate that the Court should grant relief under their Federal Rule of Civil

Procedure Rule 59(e) motion, both with and without the allegations in the proposed

second amended complaint. Once the Court concluded that the Rule 59(e) motion

should not be granted, the Plaintiffs’ motion to amend their complaint necessarily

failed.

V. CONCLUSION

The Court DISMISSES without prejudice Robert Olszewski, Jr. and Julie

Olszewski’s Motion to Reconsider Order and Judgment Dated July 29, 2025 and for

Leave to File Amended Complaint (ECF No. 20).

SO ORDERED.

/s/ John A. Woodcock, Jr.

JOHN A. WOODCOCK, JR.

UNITED STATES DISTRICT JUDGE

Dated this 28th day of January, 2026