Waters v. Gaddy

Opinion

USCA1 Opinion

September 7, 1993
                                [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
                                FOR THE FIRST CIRCUIT
                                 ____________________

No. 93-1208 

                                    PHILIP WATERS,

                                Plaintiff, Appellant,

                                          v.

                                  KIM GADDY, ET AL.,

                                Defendants, Appellees.

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                     APPEAL FROM THE UNITED STATES DISTRICT COURT

                          FOR THE DISTRICT OF MASSACHUSETTS

                       [Hon. Rya W. Zobel, U.S. District Judge]
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                                 ____________________

                                        Before

                               Selya, Boudin and Stahl,
                                   Circuit Judges.
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                                 ____________________

            Philip Waters on brief pro se.
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            Albert  W.  Wallis,  Corporation  Counsel,   Kevin  S.  McDermott,
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        Assistant   Corporation   Counsel,   and   Roberta   James,  Assistant
                                                   _______________
        Corporation Counsel, on  brief for appellees Kim Gaddy, Dino Gonzales,
        John Kelly and Leo Ronan.
            Scott  Harshbarger,   Attorney  General,  and   Neil  S.   Tassel,
            __________________                              _________________
        Assistant Attorney  General, on brief for  appellee Assistant District
        Attorney James Larkin.

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Per Curiam.  Pro-se  appellant Philip Waters appeals the
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            district court dismissal  of his claims to have  been injured

            in  violation of state and federal civil rights laws, as well

            as of  state tort  law.   The  injuries are  alleged to  have

            stemmed  from a conspiracy on the part of police officers, an

            unidentified witness, and  the prosecuting assistant district

            attorney   to   secure  Waters'   conviction   through  false

            testimony.  The district court dismissed the  claims as time-

            barred.  We affirm.

                 In June 1987,  Waters was tried  and convicted of  arson

            and  assault to commit murder  in connection with  a fire the

            previous  year in  Dorchester,  Massachusetts.    During  the

            trial,   appellee   officers  testified   that   they  either

            dispatched or heard the name and description of Waters as the

            suspect of the arson.    Appellee Larkin was  the prosecuting

            attorney.   On  October 6,  1987, Waters  obtained  a written

            transcript of  police and fire  department communication logs

            concerning  the  Dorchester   fire.    After   examining  the

            transcript,  Waters concluded  that the  police  officers had

            perjured themselves  at  this trial.1    In August  1990,  he

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            1.    The alleged perjury appears to consist of the fact that
            at trial testimony was presented that two descriptions of the
            suspected arsonist were broadcast  by the police  immediately
            after  the fire.    The first described  the suspect as being
            five feet, ten inches tall, the second as being six feet, six
            inches  tall.  Waters alleges that only the first description
            was actually broadcast  and that the second was fabricated to
            accord with  the fact that  he is  six feet six  inches tall.
            The first  description did, however, identify  Waters by name

filed a motion for a new trial in state court on the basis of

            this alleged perjury.2

                 The instant  suit was commenced  on August 26,  1992, in

            the   Middlesex  County  Superior  Court,  after  Waters  had

            obtained  am  audio  transmission  of  the  police  and  fire

            department  communications   on  the  night  of   the  arson.

            Liberally construed, the suit alleges violations of state and

            federal civil rights laws, M.G.L. c.12,  11I; 42 U.S.C.  1981

            et. seq., and other  tortious conduct by police officers,  an
            __  ___

            unidentified bystander and the prosecuting attorney.   Waters

            sought declaratory, injunctive and damage relief.  On October

            15, 1992,  appellee Gaddy  removed the  suit to  the District

            Court  for  the District  of  Massachusetts,  pursuant to  28

            U.S.C.   1441(b).  The court granted the motion to dismiss of

            appellee officers  on the ground  that "the action  was filed

            after the statute  of limitations had run."    The  motion to

            dismiss of  appellee Assistant District  Attorney Larkin  was

            granted on  the grounds  that he possessed  absolute immunity

            from suit and that  the statute of limitations had run.  This

            appeal followed.

                 Each  of  Waters' claims  is  subject  to a  three  year

            statute of limitations.  Massachusetts law provides that both

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            on  the basis of eyewitness testimony of those present at the
            time the fire was set.

            2.  The  record does  not  indicate the  disposition of  this
            motion.

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actions arising  out of  alleged violations of  civil rights,

            M.G.L.  c.260,   5B, and  actions  sounding  in tort,  M.G.L.

            c.260,  2A, must  be commenced within three  years next after

            the  cause  of action  accrues.   The  same limit  applies to

            claims  under  the Massachusetts  Torts  Claim  Act.   M.G.L.

            c.258,  4.   Since the  federal civil rights  statute has  no

            specific period of limitation, the court is required to apply

            the period of limitation of the most appropriate or analogous

            state  statute.  Goodman v.  Lukens Steel Co.,  482 U.S. 656,
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            660  (1987).    This  court  has  found  that  a  three  year

            limitations period  applies to  federal  civil rights  claims

            arising  in Massachusetts.   Johnson  v. Rodriguez,  943 F.2d
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            104, 107 (1st Cir. 1991), cert. denied, 112 S.Ct. 948 (1992).
                                      ____  ______

                 Waters asserts  that the statute of  limitations in this

            case  was  tolled by  the  fact that  he  was unaware  of any

            perjured testimony until after the trial at which the alleged

            perjury occurred,  due to fraudulent concealment  of facts by

            the  appellees.   Under the  Massachusetts discovery  rule, a

            cause of action does  not accrue "until the facts  which gave

            rise to  the cause of  action .  . . either  became known  or

            should have become known to the injured party in the exercise

            of reasonable diligence."  Edwards v. John Hancock Mut.  Life
                                       _______    _______________________

            Ins.  Co., 973  F.2d  1027, 1029  (1st  Cir. 1992)  (applying
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            Massachusetts law); Catrone v. Thoroughbred Racing Ass'n, 929
                                _______    _________________________

            F.2d 881,  885 (1st  Cir. 1991) (applying  Massachusetts law)

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(citing cases).  The plaintiff need not be aware  of the full

            extent of the harm which  he has suffered for the  statute to

            run.  Bowen v. Eli Lilly & Co., Inc., 408 Mass. 204, 206, 557
                  _____    ____________________

            N.E.2d 739, 741  (1990).   "The important point  is that  the

            statute  of limitations starts to run when an event or events

            have  occurred  that  were   reasonably  likely  to  put  the

            plaintiff  on  notice  that  someone  may  have  cause  h[im]

            injury."  Id.  See also Malapanis v. Shirazi, 21 Mass.App.Ct.
                      __   ___ ____ _________    _______

            378,  383, 487  N.E.2d 533,  537 (1986) (action  accrues when

            reasonably  prudent  person   "reacting  to  any   suspicious

            circumstances of which he might have  been aware . . . should

            have discovered that he had been harmed").  While the accrual

            period  under the federal civil rights statute is a matter of

            federal law, Rivera-Muriente v.  Agosto-Alicea, 959 F.2d 349,
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            353 (1st Cir. 1992) (citing cases), the standard  is similar.

            "The  accrual  period  in  a [federal  civil  rights  action]

            ordinarily starts when the plaintiff knows, or  has reason to

            know,  of the  injury on  which  the action  is based."   Id.
                                                                      __

            (citing cases).

                 According  to  Waters, he  was  not  aware  that he  had

            suffered harm from  any perjury until September  1991 when he

            obtained  and listened to an  audio tape of  the actual radio

            transmission of the  police and fire department  on the night

            of  the  fire.   We  do  not agree.    Waters  admits in  his

            complaint  that  in  October  1987 he  received  the  written

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transcript of the  conversation which he  later heard on  the

            tape  and  that  "[t]his  transcript showed  [him]  that  the

            testimony of Defendants Gaddy, Gonzales, Kelly, and Ronan was

            false, and  known to them to be  false."  Complaint para. 39.

            Plaintiff  also admits that on the basis of this evidence, he

            filed a motion for a new trial in state court.  Id. para. 40.
                                                            __

            The  only new  information added  by the  audio tape  was the

            identification  of  the  voices  of  the  officers,  who  are

            identified on  the written transcript only by number.  Waters

            alleges  that  the audio  tape  indicates  that the  original

            description  was  broadcast  not  by Officer  Gaddy,  as  she

            testified at  trial, but by Officer  Gonzalez.  Nevertheless,

            Waters  also  alleges  that the  written  transcript  already

            provided the evidence that Officer Gaddy had perjured herself

            in  claiming  to have  broadcast  the  second, more  accurate

            description.   Thus,  even if,  as Waters  claims,  the audio

            transcript  provided  further  confirmation  of  the  alleged

            perjury,  Waters by  his own  admission was already  aware in

            October 1987 of sufficient  facts to give him reason  to know

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that  he had been harmed.3  Rivera-Muriente, 959 F.2d at 353;
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            Bowen, 408 Mass. at 206, 557 N.E.2d at 741.
            _____

                 Plaintiff's  cause of  action accrued  at the  latest in

            October  1987.  Hence, the  present suit, which  was filed in

            August  1992,   is  barred   by  the  relevant   statutes  of

            limitations.4  

                 The grant of the motions to dismiss is affirmed.
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            3.   Waters asserts that  his cause of action arises  not out
            of  the perjured testimony at  trial but out  of a conspiracy
            among the defendants to deprive him of his rights.  Howsoever
            the  cause of  action is  characterized, sufficient  facts to
            start the  limitations period  were possessed by  Waters upon
            his  reading of the transcript in October 1987.  See Edwards,
                                                             ___ _______
            973 F.2d at 1029  (cause of action accrues when  facts giving
            rise  to action,  not legal  theory, are  known or  should be
            known).

            4.  Having found  the  suit  to  be time-barred,  we  do  not
            address the  question of whether  appellee Assistant District
            Attorney Larkin was entitled to absolute immunity.

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