Flanagan v. Grant

Opinion

USCA1 Opinion

A      p      r      i      l   5      ,   1      9      9      5

                            UNITED STATES COURT OF APPEALS

                                FOR THE FIRST CIRCUIT



                                ______________________


No. 95-1962


CHARLOTTE FLANAGAN,



                                Plaintiff, Appellant,



                                          v.



                           GARY I. GRANT AND MERCIA GRANT,



                                Defendants, Appellees.



                                   _______________



                                     ERRATA SHEET
                                     ERRATA SHEET


The  opinion  of this  Court issued  on  March 27,  1996, is

          amended to reflect the following change on the cover sheet:



               James  B.  Krasnoo, with  whom Paul  J.  Klehm and  Keith B.
               __________________             _______________      ________

          Hughes were on brief for appellees.
          ______


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UNITED STATES COURT OF APPEALS 

                                FOR THE FIRST CIRCUIT



                                 ____________________



          No. 95-1962



                                 CHARLOTTE FLANAGAN,



                                Plaintiff, Appellant,



                                          v.



                           GARY I. GRANT AND MERCIA GRANT,



                                Defendants, Appellees.


____________________



                     APPEAL FROM THE UNITED STATES DISTRICT COURT



                          FOR THE DISTRICT OF MASSACHUSETTS



                   [Hon. Reginald C. Lindsay, U.S. District Judge]
                                              ___________________



                                 ____________________



                                        Before



                                 Selya, Circuit Judge,
                                        _____________



                           Campbell, Senior Circuit Judge,
                                     ____________________



                              and Stahl, Circuit Judge.
                                         _____________



                                 ____________________



               Carmen  L.  Durso, with  whom Mary  F.  McCabe and  Lynne A.
               _________________             ________________      ________

          Tatirosian were on brief for appellant.
          __________

               James  B.  Krasnoo, with  whom Paul  J.  Klehm and  Keith B.
               __________________             _______________      ________

          Hughes was on brief for appellees. 
          ______



                                 ____________________



                                    March 27, 1996

                                 ____________________


2



Per Curiam.  Plaintiff-appellant Charlotte Flanagan
                      __________



            filed this diversity action against her  parents, defendants-



            appellees  Gary  and  Mercia  Grant,  in  the  United  States



            District Court for the  District of Massachusetts on November



            12, 1993.   Her  complaint alleged  that her  father sexually



            abused her for  four years,  beginning in 1980  when she  was



            fourteen, and that her mother actively helped to cover up the



            abuse  and  to  coerce  her  to  drop charges  against  him.1



            Defendants  moved  for  summary  judgment, and,  in  a  well-



            reasoned  report and  recommendation,  the  magistrate  judge



            recommended  allowing  the  motion  on the  ground  that  the



            complaint  was  time-barred   by  the  applicable  three-year



            statute  of limitations.  Flanagan v. Grant, 897 F. Supp. 637
                                      ________    _____



            (D.   Mass.  1995).     The   district  court   accepted  the



            recommendation.  Plaintiff appeals. 



                      Having  considered the record, the parties' briefs,



            and  oral  argument,  we  essentially agree  with  the  lower



            court's reasoning and  result and see no need  to go over the



            same ground  in the same detail.   See In re  San Juan Dupont
                                               ___ ______________________



            Plaza Hotel Fire  Litig., 989  F.2d 36, 38  (1st Cir.  1993).
            ________________________



            The  magistrate  judge  correctly applied  the  Massachusetts



            discovery rule to the facts of this case, taking into account



            the controlling  Massachusetts  cases including  the  leading



                                
            ____________________



            1.   Plaintiff  claimed assault  and battery,  intentional or

            negligent   infliction  of  emotional   distress,  breach  of

            fiduciary duty, and violation of her civil rights.



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authority, Riley v. Presnell,  409 Mass. 239, 565  N.E.2d 780
                       _____    ________



            (1991).   Since issuance  of the lower  court's opinion,  the



            Appeals  Court  of  Massachusetts  has  handed  down  another



            relevant decision, Phinney v. Morgan, 39 Mass. App. Ct.  202,
                               _______    ______



            654 N.E.2d 77, rev.  denied, 421 Mass. 1104, 656  N.E.2d 1258
                           ____________



            (1995).   Phinney  gives  further support  to the  magistrate
                      _______



            judge's view  that the limitations period  and discovery rule



            considered in  Riley, a  malpractice case, will  apply here.2
                           _____



            It also lends support to  the present outcome, in that, in  a



            fairly analogous situation involving parental incest, summary



            judgment was awarded absent  plaintiffs' showing of a triable



            issue  as to  whether they  or a  reasonable person  in their



            position would have lacked sufficient notice of the cause  of



            their harm within  the applicable time period.   See Phinney,
                                                             ___ _______



            654 N.E.2d at 81-82.



                      Focusing, as the lower  court properly did, on when



            plaintiff knew or had  sufficient notice of the cause  of her


____________________



            2.    Plaintiff's attempt  to  apply  retroactively a  recent

            Massachusetts enactment codifying the discovery rule in cases

            of sexual abuse of a minor  does not carry her far.  Even  if

            Massachusetts  General Laws ch.260,   4C were to apply, as it

            became effective December 17, 1993, after plaintiff filed her

            complaint but  before the  answer was  filed, cf.  Riley, 565
                                                          ___  _____

            N.E.2d  at 788 & n.3 (looking at whether stage of proceedings

            governed  by legislative  change on  tolling had  passed), it

            appears in the present circumstances to set out substantially

            the same standard and criteria announced in Riley. 
                                                        _____



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harm,3  we  agree that  the  record  demonstrates no  triable



            issue over whether such knowledge or notice may have occurred



            only after November 12, 1990  (the relevant date, three years



            before  the  complaint was  filed).   The  record  contains a



            plethora of  undisputed  evidence showing  plaintiff's  early



            awareness of distress resulting from her father's abuse.  She



            filed, withdrew, and later refiled (in October 1990) criminal



            charges against her father.  She manifested  from 1984 onward



            her  strong  desire  to   escape  the  repeated  abuse  (and,



            subsequently, to help her  sister escape the risk  of abuse).



            Her own  suicidal  inclinations in  1984  are linked  in  her



            affidavit  with going  to the  police in  that year  with her



            mother and  sisters to  protest  her father's  conduct.   Her



            psychologist,  Dr.  Wayment,  opined  that   plaintiff  could


____________________



            3.   Appellant concedes, as  the magistrate judge found, that

            there is no  dispute over  the first prong  of the  discovery

            rule,  i.e., that plaintiff knew she had been harmed prior to
                   ____

            November  1990.    The  sole  issue  is  whether,  given  Dr.

            Wayment's   and  plaintiff's   affidavits  relating   to  her

            dissociation --  rendering her unable causally  to relate her

            psychological injuries to  her father's conduct  -- plaintiff

            or a reasonable person who had been subject to her experience

            would have lacked sufficient  knowledge until after  November

            12, 1990 that her father caused her injuries.  We believe, in

            this regard,  that the  magistrate judge misspoke  in resting

            her  prong  one  finding  solely  on  plaintiff's remembrance

            before then of "the incestuous acts."  Flanagan, 897 F. Supp.
                                                   ________

            at 642.  The relevant harm referred to in Riley is not simply
                                                      _____

            the  abusive  conduct  itself  but the  psychological  injury

            therefrom.   See Riley, 565  N.E.2d at 786.   Here, appellant
                         ___ _____

            considered suicide  and  manifested other  forms of  distress

            prior to November 1990, making it clear that she was aware of

            the psychological harm prior  to then so as to  satisfy prong

            one of the discovery rule.



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intellectually  understand  the   relationship  between   her



            father's  incest and her feelings, although she did not fully



            associate  emotionally   the  incestuous  conduct   with  her



            feelings until the fall of 1993.



                      Riley  held   that   even  though   emotional   and
                      _____



            psychological barriers  may prevent  a plaintiff  from taking



            action against an abusive  defendant, a plaintiff's knowledge



            of a causal association between  the abuse and the  resulting



            psychological  harm suffices  to trigger  the running  of the



            statute of limitations.   Riley, 565 N.E.2d at 787;  see also
                                      _____                      ________



            Phinney,  654 N.E.2d at 81-82.  We think the magistrate judge
            _______



            did  not  err  in finding  no  triable  issue  here, and  are



            constrained  to agree  with her conclusion  in this  sad case



            that  "[i]n the case at bar, although plaintiff did not fully



            experience the extent of the damage inflicted by  her father,



            she  nevertheless realized  that  her father  was the  likely



            cause of her injuries prior to November 12, 1990."  Flanagan,
                                                                ________



            897 F. Supp. at 643.



                      There is  no merit  in plaintiff's second  argument



            that  the district  court inadequately  performed its  review



            duties because it simply noted its approval on the magistrate



            judge's  report  itself.    Plaintiff  cites  no  caselaw  or



            particular fact supporting her claim and we discern none.    



                      Affirmed.   
                      ________


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