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Waters v. Gaddy, 93-1208 (1993)

Court: Court of Appeals for the First Circuit Number: 93-1208 Visitors: 3
Filed: Sep. 07, 1993
Latest Update: Mar. 02, 2020
Summary: September 7, 1993 [NOT FOR PUBLICATION] UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT ____________________ No. 93-1208 PHILIP WATERS, Plaintiff, Appellant, v. KIM GADDY, ET AL. The same limit applies to claims under the Massachusetts Torts Claim Act. Life _______ _______________________ Ins.
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[NOT FOR PUBLICATION]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.


____________________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

____________________

Before

Selya, Boudin and Stahl,
Circuit Judges.
______________

____________________

Philip Waters on brief pro se.
_____________
Albert W. Wallis, Corporation Counsel, Kevin S. McDermott,
__________________ ____________________
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.


____________________


____________________
















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,
_______ _______________

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
_______ _________

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,
_______________ _____________

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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Source:  CourtListener

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