MEMORANDUM AND ORDER RE: MOTIONS TO DISMISS
This memorandum addresses a second round of motions filed bythe defendants, motions which yet again seek to dismiss theplaintiffs' complaints. The first round was filed at various times in 2003, andresulted in a lengthy decision by this Court on July 17, 2003,Limone v. United States, 271 F. Supp. 2d 345 (D. Mass. 2003),which was affirmed on appeal, 372 F.3d 39 (1st Cir. June 10,2004).1 The Court has allowed the government to filethese additional motions, presumably raising new jurisdictionalissues, but no more.2 Resolution of these cases hasalready been delayed far too long.
The background of this case is fully detailed in the Court'sprior decision. However, since the specific allegations are sorelevant to these motions, they will be outlined yet again. SeeLimone, 271 F. Supp. 2d 345.
Plaintiffs accuse the defendants, the United States and variousfederal3 and state law enforcement officers, of framingPeter Limone ("Limone"), Henry Tameleo ("Tameleo"), Louis Greco ("Greco"), and Joseph Salvati ("Salvati") for the murder ofEdward "Teddy" Deegan ("Deegan") on March 12, 1965. As a resultof the defendants' misconduct, these men were convicted ofDeegan's murder in 1968 and sentenced to death; sentences thatwere later vacated and replaced with life imprisonment. By 2000,all charges were dismissed against the plaintiffs then living,amid a flurry of accusations of a government frame-up and coverupextending over thirty years.
Plaintiffs allege Deegan was killed by Federal Bureau ofInvestigation ("FBI") informants Vincent "Jimmy" Flemmi("Flemmi") and Joseph Barboza ("Barboza"), along with Roy French("French"), Ronald Cassesso ("Cassesso"), and Joseph Martin("Martin"). According to plaintiffs, the defendants not onlywithheld this information, but took affirmative steps to keep ithidden during the numerous court and parole proceedings after thetrial. Since the defendants wanted to develop Flemmi as aninformant, they did not want his participation in the Deeganmurders to be known. The result: Limone, Tameleo, Salvati, andGreco were each imprisoned for over thirty years. The complaints4 seek damages under a variety of federaland state law causes of action on behalf of the wrongfullyimprisoned individuals and their families.
The United States again insists that the plaintiffs' claims arejurisdictionally barred because the prosecutions andimprisonments at issue occurred prior to the waiver of sovereignimmunity under the Federal Tort Claims Act ("FTCA"),28 U.S.C. §§ 1346 and 2671-2680. In addition, the government presses a newargument for immunity based on the discretionary functionexception to the FTCA.5 [Limone docket entry # 183,Salvati docket entry # 6]. The United States also filed anadditional motion to dismiss the claims of plaintiff EdwardGreco, the son of Louis Greco, as time-barred or for failure tostate a claim [Greco docket entry # 7].
Defendants Dennis Condon ("Condon") and Frank Walsh ("Walsh")move separately to dismiss the claims asserted against themindividually. Specifically, Condon moves to dismiss the Bivensclaims brought by the Limone and Tameleo families because they do not allege conduct that was intentionally directed atinterfering with the family relationship. [Limone docket entry #217].6 Condon asserts the same defense against theSalvati family, and additionally moves that the Salvati complaintbe dismissed based on Condon's qualified and/or absolute immunity[Salvati docket entry # 17].7 Defendant Walsh asserts thesame arguments in support of dismissing the Bivens claimsasserted by the Salvati family [Limone docket entry # 221].
For the reasons discussed below, the United States' motions todismiss are DENIED (Limone docket entry # 183, Salvati docketentry # 6, 7). Walsh's motion is GRANTED (Limone docket entry #221). Condon's motion against the Limone and Tameleo familymembers is GRANTED (Limone docket entry # 217), and Condon's motion against the Salvati plaintiffs is GRANTED in part andDENIED in part (Salvati docket entry # 17).
II. LEGAL STANDARD
This case is still at a very preliminary stage. And as I havenoted in my first dismissal decision, in adjudicating motions todismiss under Fed.R. Civ. P. 12(b)(6), I must accept allallegations in the complaints as true and all reasonableinferences must be drawn in favor of the plaintiffs. SeeRockwell v. Cape Cod Hosp., 26 F.3d 254, 255 (1st Cir. 1994).The complaints should be dismissed only if "it is clear that norelief could be granted under any set of facts that could beproved consistent with the allegations." Hishon v. King &Spalding, 467 U.S. 69, 73 (1984).
A. Factual History
Agents Paul Rico ("Rico") and Dennis Condon ("Condon") werepartners working out of the Boston FBI office with responsibilityfor investigating organized crime in New England In the courseof their work, they cultivated a number of relationships withconfidential informants, including Flemmi and Barboza. Rico,Condon, other agents, and their supervisors, including SpecialAgent in Charge James Handley, "failed to follow proper procedures and guidelines" in handling these informants.Specifically, the agents knew that, notwithstanding theirrelationship with Flemmi, he kept on committing murders. Indeed,as early as May 22, 1964, the agents were told about a Flemmicomment — "all [he] wants to do now is kill people" and that hisstated aspiration was to become the number one "hit man." Again,on March 3, 1965, the agents were advised that alleged crime bossGennaro J. Angiulo had warned another alleged mobster, RaymondPatriarca, that Flemmi "did not use sufficient common sense whenit came to killing people."
Six days later, on March 9, 1965, less than a week beforeDeegan's murder (the man the plaintiffs were accused of killing),defendants and their supervisors were aware that Flemmi was inline to be a "Top Echelon" informant just when he was also"believed to be involved in the murders" of several persons.
1. Deegan Murder
In fact, the FBI's information was even more precise withrespect to the Deegan murder. The FBI received information during1964 and 1965 alerting them that Flemmi intended to kill Deegan.Agent Rico wrote in an October 19, 1964, memorandum that aninformant reported that Flemmi wanted to kill Deegan and hadasked the informant to go with him on the "hit." A memorandumfrom the Boston Office of the FBI to the Director of the FBIdated March 10, 1965, disclosed an informant's report that Flemmi and Barboza had contacted Patriarca to get his "OK" to killDeegan. That same day, another informant told Rico that Flemmibelieved Patriarca approved the "hit" and that a "dry run" hadbeen made. Neither Rico, Condon, Handley, nor any other FBIagents warned Deegan or took steps to prevent their informants,Flemmi and Barboza, from carrying out the plan.
Deegan was killed on March 12, 1965. The next day, an informanttold Rico that Flemmi had confessed his (Flemmi's) role in thecrime, together with Barboza, French, Cassesso, and Martin. Ricomemorialized this information in a report that was transmitted toOfficer Renfrew, then a captain in the Chelsea Police Department.On March 23, 1965, the FBI received information, which it deemedto be "very good," from an informant that Barboza claimed to haveshot Deegan with a .45 caliber handgun, one of the weapons theFBI knew was involved in the murder. The informant also reportedthat Roy French was with Deegan when he was shot by Barboza,together with two other individuals, one of whom the informantbelieved was Romeo Martin.
An FBI memorandum dated March 19, 1965, notes: Informants report that Ronald Casessa, Romeo Martin, Vincent James Flemmi, and Joseph Barboza, prominent local hoodlums, were responsible for the [Deegan] killing. They accomplished this by having Roy French, another Boston hoodlum, set Deegan up in a proposed `breaking and entering' in Chelsea, Mass. French apparently walked in behind Deegan when they were gaining entrance to the building and fired the first shot hitting Deegan in the back of the head. Casessa and Martin immediately thereafter shot Deegan from the front.The State and Chelsea Police Departments had reports similar tothose discussed above.
None of this information was revealed either during theprosecution or the lengthy post-conviction proceedings of Limone,Greco, Salvati, and Tameleo.
In the spring of 1967, FBI agents including Rico and Condonarranged to meet with Barboza. They induced Barboza to cooperatewith their investigation of the Deegan murder by conveying falseinformation to him that supposedly caused him to fear for hislife. As a result, Barboza told the agents that he would not,under any circumstances, implicate Flemmi in the murder. Instead,Barboza falsely implicated Greco, Limone, Salvati, and Tameleo.The agents continued to develop Barboza as a witness even thoughtheir information plainly contradicted his account of the Deeganmurder.8
Rico, Condon, and Walsh took a formal statement from Barboza onSeptember 12, 1967. As he promised, Barboza did not implicate Flemmi. In addition, he claimed that it was Greco who shot Deeganwith the .45 caliber handgun — a statement that contradicted thecredible informant information. In a word, Barboza intended toperjure himself before the grand jury investigating the Deeganmurder, and Rico and Condon knew it.
Barboza testified before the grand jury on October 25, 1967; anindictment was handed down the same day. Prior to his testimony,Rico and Walsh took at least one additional statement fromBarboza in which he contradicted himself in several materialrespects concerning Greco's alleged involvement. Barboza hadstated that Greco left the Ebbtide Restaurant on the night of themurder with the .45 handgun in his possession; that Greco waswearing a brown topcoat; and that after the murder, Grecoreturned to the Ebbtide Restaurant and informed Barboza that he(Greco) was among those who had killed Deegan. On October 16,1967, however, Barboza stated to Rico and Walsh that Greco didnot come into the Ebbtide Restaurant at all on the night of themurder; that he did not remember what Greco was wearing; and madeno mention of any "admission" by Greco. None of the documentsmemorializing these contradictory statements were revealed before2000, nearly forty years later.
Prior to the trial, Rico, Condon, and Walsh arranged a meetingbetween Barboza and Anthony Stathopolous, who was with Deegan atthe time of the murder. Previously, Stathopolous claimed to have seen only Cassesso and Martin at the murderscene. After this meeting, however, Stathopolous claimed — forthe first time — that the man with the gun looked like Greco.Barboza also told Stathopolous that he intended to keep Flemmiout of the Deegan murder trial and directed him not to mentionFlemmi at all.
Also prior to the trial, Boston Police Officer Frank Walshinterviewed a witness in Florida who provided an alibi for Greco.The witness, Barbara Brown, cared for Greco's children when Grecowas in Florida. She showed Walsh a calendar indicating that shewas with Greco's children on the night of the Deegan murder.Walsh falsely claimed that no such calendar existed.
In short, the state prosecution of Limone, Greco, Salvati, andTameleo was procured by the FBI and nurtured by both federalagents and state officers who knew that the charges were bogus.None of the agents or supervisors involved took steps to stop theprosecution. Indeed, they did just the opposite: A July 31, 1968,memorandum addressed to the Director of the FBI recommended thatletters of commendation be issued for the Suffolk County DistrictAttorney and staff as well as Rico and Condon, particularly inlight of Condon's testifying "in an excellent manner in thiscase." 3. Conviction and Cover-Up
In 1968, Greco, Limone, Salvati, and Tameleo were convicted ofthe Deegan murder in the Superior Court of Suffolk County,Massachusetts. Greco, Limone, and Tameleo received deathsentences, later vacated and replaced with sentences of lifeimprisonment. Salvati was convicted of accessory before the factand two counts of conspiracy; he was sentenced to lifeimprisonment.
Plaintiffs allege that at various times from the murder ofDeegan to the present, FBI agents Rico, Condon, John Morris, andJohn Connolly, other employees of the Department of Justice andFBI, and Officers Walsh and Renfrew, took affirmative steps tocover up the facts and to keep secret evidence that wouldexculpate Limone, Tameleo, Salvati, and Greco.
In or about 1970, Barboza recanted his trial testimony againstthe four men in statements to James Southwood, William Geraway,Attorney F. Lee Bailey, and Attorney Gerald Alch.9Defendants induced Barboza to withdraw his recantation and affirmhis earlier false trial testimony by promising to arrange for hisrelease from prison. In 1971 and 1972, Rico and Condon continued to help Barboza in order to ensure his silence, even going so faras to intercede on his behalf in a California first-degree murderprosecution. Barboza was permitted to plead guilty toseconddegree murder and was sentenced to only five years'imprisonment. He was released after serving less than threeyears.
In 1982, with the support of the Deegan family who believed inhis innocence, Limone filed a petition to commute his sentence.Defendants stonewalled, continuing to withhold information thatwould have exonerated Limone. Indeed, agents Morris and Connollyattempted to discourage members of the Massachusetts AdvisoryBoard of Pardons from recommending commutation for Limone byproviding false information directly and through then U.S.Attorney William Weld.
Notwithstanding this pressure, on August 1, 1983, the Boardvoted to recommend commutation of Limone's sentence. FBI agents,including Morris and Connolly, then channeled false informationto the office of the Governor to dissuade him from approving thecommutation petition. It worked. On September 20, 1983, GovernorDukakis denied the petition.
FBI agents, including Morris and Connolly, went so far as tocause state law enforcement officials to investigate members ofthe Advisory Board of Pardons who had voted in favor ofcommutation to determine if they were influenced by organizedcrime. On December 21, 1987, the Board unanimously denied a hearing on a subsequent petition for commutation by Limone, afterreceipt of more false information from defendants.
In 1983 and 1986, Greco also applied for commutation of hissentence. Again, on each occasion, the Board recommendedcommutation. Again, FBI agents sought to discourage GovernorDukakis in 1985, and Governor Weld in 1993, from granting thepetition. As a result, Greco's petition was turned down.
Salvati filed no fewer than five petitions for commutation ofhis sentence, an appeal of his conviction to the MassachusettsSupreme Judicial Court, and a motion for a new trial. In 1986,four of the seven members of the Parole Board voted to grantSalvati a hearing on his application. At a closed door session in1986, the Parole Board Chair, John Curran, told the Board thatunnamed FBI agents informed him that Salvati was under federalinvestigation and possible indictment for involvement in a Bostonloan-sharking operation run by an ex-convict named Frank Oreto.Curran recommended that Salvati be denied a hearing. Based onthat information, the Parole Board rescinded its prior vote. Itvoted unanimously to deny Salvati a hearing. The informationprovided by the FBI agents was false; Salvati was never indicted;rather Oreto was indicted in June of 1987.10
Throughout all of these post-trial proceedings, plaintiffs'attorneys requested exculpatory evidence. No information was disclosed until December 2000, when FBI documents and otherevidence were released in connection with an unrelated criminalprosecution.
Tameleo and Greco died in prison in 1985 and 1995,respectively, prior to the time when the facts recounted abovecame to light. Salvati was released after his sentence wascommuted on March 20, 1997, but remained on parole until January30, 2001. Limone stayed in prison until January 5, 2001. Hisconviction was vacated and a new trial ordered on January 8,2001. Salvati's conviction was also vacated in January 2001.
On January 30, 2001, the Suffolk County District Attorney'sOffice announced that it would drop all proceedings against bothLimone and Salvati. In a written nolle prosequi, the DistrictAttorney's Office stated that newly discovered evidence,including FBI documents, had undermined the credibility ofBarboza, the Commonwealth's principal witness, and theCommonwealth's theory of the murder. After a thorough review ofthe facts, the Commonwealth noted that it "does not now have agood faith basis — legally or ethically — to proceed with anyfurther prosecution of the defendant."11
5. Procedural History In July 2003, this Court denied defendants' first round ofmotions to dismiss. See Limone, 271 F. Supp. 2d 345. I foundthat (1) the FTCA's discretionary function exception did notapply to plaintiffs' malicious prosecution claims; (2) plaintiffssatisfied the initiation and favorable termination requirementsnecessary to their malicious prosecution claims; (3) plaintiffs'claims for intentional infliction of emotional distress were notjurisdictionally barred because they did not "arise out" ofintentional torts barred by FTCA; (4) plaintiffs' factualallegations regarding FBI agents' statements to the Board ofPardons were not barred by the FTCA's failure to waive immunityfor libel and slander because such factual claims provide supportfor their malicious prosecution claim; (5) plaintiffs' conspiracyclaims were not barred because the underlying tort claims werenot dismissed; and (6) defendants Rico, Condon, and Walsh werenot entitled to qualified or absolute immunity.12
Defendants' new arguments for dismissal of the claims againstthem are equally baseless, with a few exceptions noted below.
IV. UNITED STATES' MOTION TO DISMISS AGAINST ALL PLAINTIFFS A. Malicious Prosecution
It is axiomatic that claims for damages against the UnitedStates (as opposed to claims against individual defendants) maybe maintained only to the extent that the government hasconsented to be sued. The FTCA sets forth the categories ofactions for which the government has agreed to waive itstraditional immunity. See 28 U.S.C. § 1346(b). What thegovernment is arguing here is that plaintiffs' claims falloutside the area covered by that waiver and are thusjurisdictionally barred.
Before 1974, the FTCA waived the government's sovereignimmunity only for negligent actions of government agents actingwithin the scope of their employment — not for intentional torts.The government's position changed on March 16, 1974, after aseries of highly publicized and plainly illegal home raids byfederal agents in Collinsville, Illinois, see 1974 U.S.C.C.A.N.2789, 2791 (1973). On that date, Congress amended the FTCA,consenting to be sued for certain intentional torts committed byfederal law enforcement agents, the kind of official misconductwidely maligned in the Collinsville raids. But to avoid openingthe floodgates to historical claims, what the 1974 amendmentannounced — in less than clear legal language — was that, ineffect, from now on the government would allow itself to be sued for certain intentional torts.13 The governmentargues that plaintiffs' fall within the pre-amendment regime andthus, are barred. Plaintiffs situate their case in the proviso —the "from now on" clause.
The statute uses the words "claim arising on or after" toconvey the idea that the provision is prospective. The governmentinterprets these words to apply to acts alleged to have beencommitted by officials, not to claims, which are contingent ona host of legal factors. The acts at issue, they insist, are the"acts or omissions" of the law enforcement officers before andduring the 1968 trial. As such, plaintiffs' claims would havearisen before the government's waiver of sovereign immunity. Plaintiffs counter that the term "claim arising on or after" isa legal concept, which refers to the date on which their claimscould have been brought to court. The word "arise," they argue,is synonymous with the word "accrue." Thus, their causes ofaction arose in 2000 when Limone, Salvati, Greco, and Tameleo'sconvictions were vacated (or constructively reversed). Only then,having received the favorable termination essential to amalicious prosecution claim, could the plaintiffs have broughtsuit.14 In the alternative, plaintiffs contend that evenif the FTCA is interpreted as the government suggests thegovernment's motion should still fail. Plaintiffs have allegedpost-1974 misconduct, i.e. defendants' thirty-year activecover-up of the FBI's misdeeds. The malicious prosecution claim,they allege, both legally and factually straddles the date of theFTCA amendment.
I agree with plaintiffs. I do not have to delve too deeply intothe linguistic thicket of what the phrase "claims arising on orafter" means in § 2680 because of the nature of maliciousprosecution in general and the unique facts of this case. First,while most intentional torts — including those listed in the 1974amendment — "arise" and "accrue" at the same time, a maliciousprosecution claim requires an additional, later act to occur, namely that the plaintiff's conviction be terminated inhis favor. Unlike a plaintiff who claims that he or she waswrongly assaulted by an officer, who can proceed to court themoment after the punch lands, plaintiffs here had to wait thirtyyears before all elements of the claim were in place. It was notuntil 2000 that there was a favorable termination of their casesand their collective nightmare ended. Whatever "arise" means inother settings, for other intentional torts, in the context ofmalicious prosecution, it has to include the occurrence of allelements comprising the tort.
Second, even if I were to accept the government's fact-basedargument, plaintiffs' claims still survive. The government'sargument that the core misconduct — the 1968 conviction —determines when the claims "arose," ignores the post-1974 acts ofmisconduct, which are no less important. They have allegedaffirmative acts by law enforcement officers designed to cover upthe wrongful prosecution time after time, in legal proceedingafter legal proceeding. This was more than a continuing violationof their rights by FBI agents passively standing by as theyrotted in jail. This was a veritable campaign by the defendantsto ensure that the real perpetrators were never prosecuted.
In addressing the government's motion, I begin with the plainlanguage of the statute (section 1), the legislative history ofthe proviso (section 2), other court decisions (section 3), the elements of malicious prosecution (section 4)and finally, the acts which plaintiffs claim occurred after the1974 amendment (section 5).
1. Plain Meaning
In the absence of a statutory definition, courts construe astatutory term in accordance with its ordinary or naturalmeaning. Smith v. United States, 508 U.S. 223, 228 (1993).
a. The Definitions
Black's Law Dictionary defines "arise" in three differentcontexts: "1. To originate; to stem (from) 2. To result (from)
The use of the term "claim" in § 2680(h) provides furthersupport for the view that Congress was referring to anenforceable legal right. Black's defines "claim" to mean: 1. The aggregate of operative facts giving rise to a right enforceable by a court
But while the dictionary definition of "arise" and "accrue"suggests one interpretation of § 2680(h), the government arguesthat the words have a different meaning in the four corners ofthe provision. In the other parts of § 2680, which define claimsexempt from waiver, Congress uses the term "arise" linked toclaims that follow specific official acts — the loss of mail (§2680(b)), the assessment of a tax (§ 2680(c)), or certain genericcategories of acts, the combatant activities of the military (§ 2680(j)), the activities of the Tennessee Valley Authority (§2680(l)).15 Likewise, the government argues, the claimsat issue in § 2680(h) are those that follow specific acts — herethe act of an alleged wrongful conviction.
But § 2680(h) is more complex than the other sections. Each ofthe other lettered sections exclude all of the acts describedfrom suit — all combatant activities, all activities of theTVA, etc. It does not matter if the tort involving thoseactivities began pre-1974, and continued afterwards. Section2680(h), however, purports to distinguish between thoseintentional torts that are barred, and the proviso, which carvesout some of the same torts post-1974 that are actionable. Thus, the government'sanalysis does not adequately address cases — as here — thatinvolve conduct that begins before 1974 but continues afterwards.Nor does it deal with complex intentional torts like maliciousprosecution whose elements — legal and factual — straddle theproviso's effective date.
The government also points to the use of the terms "arise" and"accrue" elsewhere in the FTCA. In 28 U.S.C. § 1346(b)(1), forexample, the statute states that the courts have exclusivejurisdiction over "civil actions or claims against the UnitedStates, for money damages, accruing on and after January 1,1945, for injury or loss of property. . . ." (Emphasis added).Congress used the same language in setting the statute oflimitations under the FTCA in 28 U.S.C. § 2401(b): "A tort claimagainst the United States shall be forever barred unless it ispresented in writing. . . . within two years after such claimaccrues. . . ." (Emphasis added). In each case, "accrue" refersto legal claims, not to the occurrence of specificacts.16 When Congress amended the FTCA in 1974, so theargument goes, it intentionally used a different word, namely "arise" than the wordit had used before. It intended to convey a different meaning.
There is also another interpretation. If Congress had intendedto waive immunity only for specific acts occurring after 1974, itwould have been easy for it to have said so — i.e. "acts oromissions of law enforcement officers occurring on or after" agiven date. Instead, it used language laden with legal meaning —i.e. "claims arising on or after." It is just as reasonable tobelieve "arise" and "accrue" are synonymous in the statute, asthe plaintiffs suggest, as the opposite. Or, as described below,just because the word "accrues" has a certain legal meaning instatute of limitations contexts (i.e., when the plaintiffdiscovers the wrong) does not mean that the word "arise" pairedwith the word "claim" has no legal connotations. See section3, infra.
2. Legislative History
Given the provision's ambiguity, especially as applied tomalicious prosecution, it is appropriate to look to legislativehistory for guidance. See United States v. Fisher,6 U.S. 358, 400 (1805). Congress sought to amend the FTCA in response toa series of abusive and unconstitutional "no-knock" raids byFederal narcotics officers.17 It was disturbed that thevictims of these raids had no legal remedy to redress their harms,finding Bivens remedies against individual officersinsufficient because they were often judgment-proof. Thus,Congress provided a counterpart to Bivens and its progeny bywaiving sovereign immunity for certain intentional tortscommitted by law enforcement agents. Thus, the legislativehistory states "after the date of enactment of this measure,innocent individuals who are subjected to raids of the typeconducted in Collinsville, Illinois, will have a cause of actionagainst individual Federal agents and the Federal Government."1974 U.S.C.C.A.N. 2789, 2791 (1973).
The government argues that this language indicates Congress'intent to create only prospective relief. True enough where theplaintiff's injury is immediately apparent and actionable. Butmalicious prosecution claims are different, as described infra.Indeed, in light of Congress' concerns for the innocent victimsof the Collinsville raids, it is inconceivable that it would havemeant to exclude a sustained post-1974 effort by governmentofficers to keep plaintiffs behind bars for crimes that theofficers knew they did not commit.18 3. Case Law Interpreting § 2680(h)
Very few federal courts have addressed the meaning of "arise"in the context of § 2680(h). Most have not discussed the term atany length, and none considered a malicious prosecutionclaim.19 While the early cases support the government'sargument, they make cursory mention of § 2680(h) and offer nointerpretation of "arise" in connection with a maliciousprosecution claim. See Gaudet v. United States, 517 F.2d 1034(5th Cir. 1975) (two page decision affirming dismissal of falsearrest, assault, and malicious prosecution claims becauseunderlying acts occurred before March 16, 1974); Dupree v.Village of Hempstead, 401 F. Supp. 1398 (E.D.N.Y. 1975) (twopage decision granting motion for summary judgment on falsearrest and imprisonment claims because wrongdoings occurredbefore amendment); see also Pennington v. United States,406 F. Supp. 850, 851 (E.D.N.Y. 1976) (three page decision onlyassessing negligence claim against United States because assaultand battery occurred in 1973). The government relies on two later decisions, Liuzzo v. UnitedStates, 508 F. Supp. 923 (E.D. Mich. 1981), and Diminnie v.United States, 728 F.2d 301 (6th Cir. 1984), but they are notapplicable. In Liuzzo, children of a civil rights worker whowas murdered in 1965 by a group of Ku Klux Klan members includingone FBI informant, brought suit against the United States for itsrole in the murder and its negligent failure to supervise theinformant. To the extent the complaint alleged the government'swrongful participation in the murder, it was barred by § 2680(h);the government could not be liable for an assault and batterybefore the effective date of the amendment. To the extent thatthe claims involved negligent supervision, however, the claimswere not barred. The government had waived its immunity fornegligence with the initial passage of the FTCA in 1945. Liuzzov. United States, 485 F. Supp. 1274, 1283 (E.D. Mich. 1980). Ininterpreting the word "arise" as applied to the government'sdirect participation in the murder, the Court distinguished theterm "arise" in connection with waivers of a sovereign immunityclaim from "accrue" for the purpose of evaluating the statute oflimitations: [W]hen a claim `arises' for the purpose of the proviso to 28 U.S.C. § 2680(h) bears no relationship to when a claim `accrues' under the FTCA statute of limitations, 28 U.S.C. § 2401(b). The considerations and factors relevant to the accrual of a claim, and thus when a plaintiff must file his claim, do not affect whether or when Congress might decide to waive sovereign immunity for a claim. While due diligence is required in pressing a recoverable claim, Congress is certainly free to set an effective date for the waiver of sovereign immunity in this type of situation, and no amount of diligence on plaintiff's part can alter the fact that the wrong occurred prior to the date that immunity was waived.Liuzzo, 508 F. Supp. at 927-28 n. 2.
But even if the word "accrue" is laden with statute oflimitations concerns, like a plaintiff's diligence in bringing aclaim, and the word "arise" is not, the government overstates theargument.20 Just because "accrue" has those connotationsdoes not mean that "arise," particularly if paired with the word"claim," is devoid of any reference to legal rights. There issurely a difference between plaintiffs who cannot go to courtbecause they have not met the elements of a tort and plaintiffswho cannot go to court because they are unaware that a tort hasbeen committed or who committed it. In the former, the plaintiffsimply cannot sue because his claim is not actionable. In thelatter — like Liuzzo — the plaintiff has a ripe claim, but does not know it. With malicious prosecution, plaintiffs do not have alegal right or claim until their convictions are vacated. Whatthey knew or suspected before that point is irrelevant.
The government's reliance on Diminnie is equallyunpersuasive. In Diminnie, the Sixth Circuit affirmed summaryjudgment for the defendant on the plaintiff's assault, battery,false imprisonment, and malicious prosecution claims because they"all accrued at the time of the original arrest and indictmentin 1973, and thus prior to the 1974 amendment. . . ." (emphasisadded) 728 F.2d at 303. I decline to read into this sentence thesignificance that either party attaches to it. Defendant wasprosecuted for sending extortion letters and threatening to blowup buildings or planes. He was arrested and indicted in 1973, andconvicted in 1975. Prior to sentencing, an ATF agent confessed tohaving authored the letters. The trial court found plaintiff hadnot alleged the elements of malicious prosecution against eitherthe government or the agent. The latter had no role in initiatingthe prosecution. The former, since it did not know the agent wasculpable, had probable cause to charge plaintiffs. The claimagainst the government fell on the merits not the vagaries ofsovereign21 immunity or statute of limitations law. Dimminie v. United States, 522 F. Supp. 1192,(E.D. Michigan 1981).22
The government also points to the Supreme Court's discussion ofthe § 2680(c) exception for claims "arising in respect of . . .the detention of any goods or merchandise by any officer ofcustoms." See Kosak v. United States, 465 U.S. 848 (barringsuit by individual for injury to his belongings while they werein Customs Services' custody). The Court interpreted "arising inrespect of" to mean "arising out of" and analyzed the phrase interms of the conduct it addressed. 465 U.S. at 857. As notedabove, while the selected language provides some support for thegovernment's position, the Court did not address this language inthe context of when a claim arises because these provisions,unlike § 2680(h), do not distinguish between "conduct before" and"conduct after" a given date. See also Sosa v.Alvarez-Machain, ___ U.S. ___, 124 S.Ct. 2739, 2749 (June 29,2004) (assessing § 2680(k) foreign country exception and finding"arising in" referenced place where harm occurred). This District's interpretation of "arise" and "accrue" outsidethe FTCA context provides some support for plaintiffs' argument.In Ellis v. Ford Motor Company, 628 F. Supp. 849 (D. Mass.1986), the Court analyzed whether a 1981 amendment to the statuteof limitations for Massachusetts wrongful death claims applied tothe plaintiffs' claims. The decedent was injured in an autoaccident in 1973 but did not die until 1983. The statute inexistence at the time of the accident barred wrongful deathactions where the death did not occur within two years of theaccident. A 1981 amendment eliminated this requirement for all"causes of action arising on or after January 1, 1982."628 F. Supp. at 853.
The Court found that the amendment applied because plaintiff'scause of action arose on the later date, the date of death,rather than the earlier date, the date of the accident.
The issue is similar to the one at bar: A statute that purportsto change the law prospectively, and a claim that did not comeinto being until all elements of the tort were met, whichamounted to years after the original misconduct.
In contrast, the government relies on Heinrich v. Sweet,118 F. Supp. 2d 73, 79 (D.Mass. 2000) rev'd on sep. grounds308 F.3d 48 (1st Cir. 2002). Heinrich is distinguishable becauselike Liuzzo it involved claims that were entirely ripe at thetime of the injurious conduct but not discovered until yearslater. At issue was an amendment eliminating a damages cap forwrongful death that applied to "causes of action arising on or after[January 1, 1974]." Id. Certain deaths occurred in 1961 but theplaintiffs did not discover the tortious conduct (involuntaryhuman medical experimentation) until 1995. In reliance onMassachusetts law and the distinctions between the terms "arise"and "accrue," the Court found that the action arose when theconduct occurred in 1961, even though it did not accrue (becauseof tolling provisions) until 1995. Id. at 81. The differencebetween the plaintiffs here and the Heinrich plaintiffs isclear.23 The Heinrich plaintiffs had a completed legalclaim in 1961; they just did not realize it until 1995.
4. Malicious Prosecution Elements
In any event, malicious prosecution is different from all ofthe other torts listed in § 2680(h). Most causes of action ariseand accrue at the same time — when the harm occurs.24 A plaintiff claiming malicious prosecution, however, must show thatthe defendant instituted criminal proceedings against him withmalice, without probable cause, and that those proceedingsterminated in his favor. See Correllas v. Viveiros,410 Mass. 314, 318 (1991). Achieving the favorable terminationrequirement sadly often takes time; in the case at bar, it tookover thirty years.
Moreover, this requirement was not a clearly articulatedelement of the tort until 1994, twenty years after the FTCAamendment. In Heck v. Humphrey, 512 U.S. 477, 489 (1994), theSupreme Court underscored the importance of the favorabletermination requirement to prevent collateral attacks onconvictions. Id. at 485-86. The requirement
avoids parallel litigation over the issues of probable cause and guilt . . . and it precludes the possibility of the claimant . . . succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against the creation of two conflicting resolutions arising out of the same or identical transaction.Id. at 484 (quoting 8 S. Speiser, C. Krause, & A. Gans,American Law of Torts § 28.5, p. 24 (1991)). To argue thatplaintiffs' claim arose before 1974 — over fifteen years beforethey received "favorable termination" of the charges — would ignoreSupreme Court precedent and the policy underlying it.25
5. Post-1974 Misconduct
Even if I were to adopt the government's argument that Congressonly waived sovereign immunity for claims arising out of conductpost-dating the amendment, plaintiffs have clearly allegedmisconduct — and lots of it — after March 16, 1974.
The government counters that plaintiffs' argument is nothingmore than a continuing constitutional violation which started in1968, and relates back to that date. As such, it is notactionable under the FTCA.26 The argument isextraordinary: Just because the government was lucky enough tocommit one horrible act (or series of acts) before 1974 —enabling the conviction and life sentence of four innocentindividuals — its subsequent thirty years of illegal activityshould be immunized as somehow "relating back" to its originalmisconduct. This argument is both logically, not to mentionethically, flawed.
Plaintiffs cite to authority for holding officers liable forcontinuing a malicious prosecution. Whoever "takes an active part in continuing or procuring the continuation of criminalproceedings initiated . . . by another is subject to the sameliability for malicious prosecution as if he had then initiatedthe proceedings." Mitchell v. City of Boston,130 F. Supp. 2d 201, 215 (D. Mass. 2001) (articulatingstandard for continuing the prosecutions but concluding the factsdo not support the claim). See also Restatement (Second) of Torts §655 (1976); Jones v. City of Chicago, 856 F.2d 985, 994(7th Cir. 1988) (upholding verdict on § 1983 claim forconstitutional torts where police continued prosecution by concealinginformation and misrepresenting facts to prosecutors before chargesdismissed); Mitchell, 130 F. Supp. 2d at 215(acknowledging continuation of proceedings but facts did not supportclaim); Fordham v. Cole, 1991 WL 718188 (Mass.Super.Ct.1991) (favorably citing continuation of prosecution in context of"initiating" prosecution that terminated in plaintiff's favor onappeal from zoning board decision).
But while none of these cases involve post-convictionmisconduct, that is a distinction without a difference on thefacts of this case. After his conviction, Salvati filed no fewerthan five petitions for commutation of his sentence, an appeal ofhis conviction to the Massachusetts Supreme Judicial Court, and amotion for a new trial. The complaint does not specify the datesof all these requests, but at least one was post-1974. Limonefiled a petition for commutation in 1982 and filed for rehearing on his petition in 1987. Greco applied for commutation of hissentence in 1983 and again in 1986. Throughout thepost-conviction proceedings, plaintiffs' attorneys repeatedlydemanded exculpatory information, and the defendants repeatedlyignored them. In fact, plaintiffs allege that FBI agents took anactive role in impeding their commutations by conveyingmisinformation to the Parole Board, intimidating its members, andlobbying several different governors to deny the petitions.
Being bad once prior to the date of the FTCA does not give thegovernment the right to be bad forever.27 And this isespecially so when their conduct constitutes not only the passivecontinuation of the 1968 malicious prosecution, but also a newclaim for malicious prosecution for each proceeding in which thegovernment disseminated misinformation and covered-up the realfacts.
However one interprets "arise" and "accrue," the post-1974facts alleged in this case are unique and uniquely egregious. TheFTCA's goal of providing a remedy to innocent individuals subjected to abusive government conduct post-1974 can only beserved by allowing plaintiffs to proceed with their claims.
B. Derivative Claims
The United States argues that plaintiffs' claims for loss ofconsortium, intentional infliction of emotional distress,conspiracy, negligent selection, negligent retention, andnegligent supervision are barred because they "arise out of" thetorts of false imprisonment and malicious prosecution. Thesearguments were addressed in part in this Court's prior decisionin Limone, 271 F. Supp. 2d at 363. To the extent that I havenot already addressed defendants' arguments, I need not addressthem here because plaintiffs' malicious prosecution claims arenot barred.
C. Discretionary Function Exception
This Court already denied defendants' motion to dismiss basedon the discretionary function exception to the FTCA for claimsaddressing "how to conduct investigations, whom to prosecute,whether to disclose exculpatory evidence, and how to manageinformants." Limone, 271 F. Supp. 2d at 353. Defendants nowargue that the discretionary function exception protects themfrom plaintiffs' claims for negligent selection, retention andsupervision of FBI agents. This argument is equally unavailing.The FBI supervisors' actions were not discretionary or policyrelated. The "discretionary function" exception to the FTCA confersimmunity over claims "based upon the exercise or performance orthe failure to exercise or perform a discretionary function orduty on the part of a federal agency or an employee of theGovernment, whether or not the discretion involved be abused."28 U.S.C. § 2680(a). "The purpose of this exception is to `preventjudicial `second guessing' of legislative and administrativedecisions grounded in social, economic, and political policythrough the medium of an action in tort.'" Coyne v. UnitedStates, 270 F. Supp. 2d 104, 112 (D. Mass. 2003) (quotingBerkovitz v. United States, 486 U.S. 531, 536-37 (1988)).
The First Circuit described the analytical framework to usewhen evaluating a "discretionary function" defense: First, an inquiring court must identify the conduct that allegedly caused the harm. Then, in determining whether Congress sought to shelter that sort of conduct from tort liability, the court must ask two interrelated questions: (1) is the conduct itself discretionary? (2) If so, does the exercise of discretion involve (or is it susceptible to) policy-related judgments? If both of these queries yield an affirmative answer, the discretionary function applies and the government is shielded from liability.Muniz-Rivera v. United States, 326 F.3d 8, 15 (1st Cir. 2003)(citations omitted).
1. Conduct in Question Defendants again attempt to immunize their behavior with broadcharacterizations. Under the government's theory, choices thatbear any relationship to the FBI's authority to supervise itsemployees would be immune from liability. But that is hardly thelaw. "Courts consistently focus on the particular events thatproximately caused the injuries for which recovery is sought, notthe broad policy authority pursuant to which particular actionswere under taken." Coyne, 270 F. Supp. 2d. at 115. If it wereotherwise, the government could always avoid liability by viewingall of its actions at the highest level of abstraction.
Here, plaintiffs allege that FBI supervisors knowingly allowed(and at worst enabled) FBI agents to assist Barboza in providingfalse testimony and in working actively to obtain (and sustain)convictions against four innocent men, all to cover up Flemmi'scriminal activities. FBI higher-ups, allegedly knowing the facts,even went so far as to recommend commendations for Rico's andCondon's activities in the Deegan investigation.
2. Discretionary Decision
There can be no question that the alleged conduct of the FBIsupervisors in this case was not "discretionary" within themeaning of the statute. And even if it was, it is clear that thisis not the sort of discretion that Congress intended to protect.
In Berkovitz v. United States, the Supreme Court held: [T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action for an employee to follow. In this event, the employee has no rightful option but to adhere to the directive. And if the employee's conduct cannot appropriately be the product of judgment or choice, then there is no discretion in the conduct for the discretionary function exception to protect.486 U.S. at 536.
The government mandates conduct in a variety of ways, including"comprehensive regulatory schemes, administration of agencyprograms, adjudicatory proceedings and internal operatingguidelines." Flax v. United States, 847 F. Supp. 1183, 1188 n.6 (D.N.J. 1994) (finding discretionary function exception barredclaim for negligent surveillance of kidnapping suspects becauseFBI guidelines described surveillance in very broad termsrequiring agents' discretion); see Irving v. United States,162 F.3d 154, 164 (1st Cir. 1998) ("informal agency rules andsimilar pronouncements may at times bind agency personnel for thepurposes of discretionary function exception"); Coyne v. UnitedStates, 270 F. Supp. 2d at 116-18 (finding that accidentalrevelation of informant's identity and failure to protect hissafety did not seem discretionary and could not be assessed priorto discovery of FBI policies and procedures which might bear onconduct). And when those policies or regulations are violated,liability will necessarily follow. United States v. Gaubert,499 U.S. 315, 324 (1991). Plaintiffs cite several mandatory procedures that were violatedby FBI supervisors.28 See Plaintiffs' Joint Oppositionpp. 11-14.29 In particular, FBI policy required: 1. MRR § I(1)(A)91): "Special Agents in Charge (SACs) must report immediately any improper conduct of employees in their territory." (Emphasis added.)This directive is found in the MRR as early as March 29, 1963.
2. MRR § I(1)(A)(2): "All employees must report immediately neglect of duty or any conduct prejudicial to the best interests of the Bureau. . . ." (Emphasis added).This directive is found in the MRR as early as March 29, 1963.
3. MRR § I(9)(B): "There must be no delay in notifying the Bureau concerning any allegations of either misconduct or improper performance of duty on the part of Bureau personnel." (Emphasis added).This directive is found in the MRR as early as March 27, 1969.
4. MOI § 1008(IV) "While it is proper for the FBI to use informants in appropriate investigations, it is imperative that special care be taken not only to minimize their use but also to ensure that individual rights are not infringed and that the government itself does not become a violator of the law." (Emphasis added).This directive is found in the MOI as early as January 12, 1977.
5. MOI § 108(IV)(C)(1): "Under no circumstances shall the FBI take any action to conceal a crime by one of its informants." (Emphasis added).This directive appears in the MOI as early as January 12, 1977.
Defendants argue that the guidelines cited by plaintiffs werenot mandatory and did not dictate a specific course of conduct. Idisagree. At least on their face, these directives requiredsupervisors to report misconduct immediately and ensure thatindividuals' rights were not violated through the use ofinformants. The FBI supervisors, so the complaints allege,plainly violated them.
Defendants cite various cases for the proposition that issuesof employee supervision and retention generally involve policyjudgments and fall within the discretionary function exception.See, e.g., K.W. Thompson Tool Co., Inc. v. United States,836 F.2d 721, 728 (1st Cir. 1998) (affirming dismissal of negligentsupervision claim because law directing EPA to develop programsfor environmental control invoked use of agency discretion);Attallah v. United States, 955 F.2d 776, 784-85 (1st Cir. 1992)(finding decision whether Customs Service should undertake thelevel of supervision or surveillance necessary to predict futurecriminal conduct by agents was policy judgment). That may be soas a general matter, but not in this case. This case involves far more that the run-of-the-mill employmentsupervision decisions. It involves an intricate cover-up ofillegal behavior made possible by FBI supervisors ignoring or atworst assisting in the illegal conduct of their subordinates.
3. Policy Considerations
Even if this Court found the supervisory decisionsdiscretionary, that discretion could not possibly have involvedthe kind of policy decisions that Congress sought to protect. Forexample, in Tonelli v. United States, 60 F.3d 492, 496 (8thCir. 1995), the Eighth Circuit found that the discretionaryfunction exception could not apply to a supervisor's failure toact when he had notice of illegal behavior (stealing mail from apatron's box) by a subordinate postal employee. The court held: Issues of employee supervision and retention generally involve the permissible exercise of policy judgment and fall within the discretionary function exception. However . . . Failure to act after notice of illegal action does not represent a choice based on plausible policy considerations.60 F.3d at 496 (internal citations omitted).
The same analysis applies a fortiori in the case at bar.
V. UNITED STATES' MOTION TO DISMISS EDWARD GRECO'S CLAIMS
The United States has filed a separate motion to dismissagainst plaintiff Edward Greco. Edward Greco is the son of Louis Greco.30 Only eleven years old at the time of is father'sconviction, he alleges that he too suffered damages as a resultof his father's wrongful conviction, incarceration, and death inprison. He asserts claims under the FTCA and Massachusetts statelaw for intentional infliction of emotional distress and loss ofparental consortium (Counts I, II, V, and VI), civil conspiracy(Count III), and 42 U.S.C. § 1983 claims against state actors(Count VII). The government moves to dismiss on the grounds that(1) plaintiff's intentional infliction of emotional distressclaim is (a) time-barred because he failed to present anadministrative claim within two years of accrual, oralternatively (b) fails as a matter of law because such emotionaldistress was not substantially contemporaneous with the allegedoutrageous conduct; and (2) plaintiff's claims for loss ofconsortium and conspiracy fail because the underlying tort onwhich it is based is not actionable.
A. Intentional Infliction of Emotional Distress
Edward Greco's intentional infliction of emotional distressclaim is distinct from like claims asserted by the men who werewrongfully convicted.31 His claims turn on Massachusetts' bystander theory of recovery — the circumstances under whichfamily members who were not the direct victims of a defendant's"outrageous misconduct" may bring claims stemming from thatconduct.
The government asserts two related challenges to Edward Greco'sclaim based on the amount of time that elapsed between his injury— which they identify as the moment his father was convicted —and his discovery of the malefactors thirty years later. First,the United States argues that bystander liability law requiresthat Edward Greco suffer severe emotional distress simultaneouswith, and as a result of, the defendants' outrageous conduct.Whatever distress Edward felt, they argue, occurred during hisfather's conviction in 1968; he did not learn of the defendants'hand in it until later. Second, and related, the governmentargues that the claim is barred by the FTCA's statute oflimitations because it accrued at the time of the conviction in1968.32 I reject both of the government's technical traps as detailedbelow, at least on this record. I will allow Greco's claims toproceed.33
1. The Merits of the Claim
The government argues that Edward Greco's claim for intentionalinfliction of emotional distress does not meet the"contemporaneous" requirement of bystander liability because hedid not know about the FBI's "outrageous conduct" at the time ofhis father's trial. Edward Greco counters that he suffered severeemotional distress at the moment of his father's convictionprecisely because he knew his father was innocent; his father wasin Florida on the night of the Deegan murder. Based on hisfather's defense at trial, he believed that the FBI was involvedin framing him.34 Alternatively, he argues that the contemporaneous requirement should be waived given thegovernment's misfeasance in concealing its misconduct.35
The tort of intentional infliction of emotional distress is ofrelatively recent vintage. Courts were reluctant to recognizesuch torts, unaccompanied by physical harm, because emotionaldistress seemed ephemeral, and so easily contrived. Heinrich v.Sweet, 49 F. Supp. 2d 27, 39 (D.Mass. 1999). It was difficult todifferentiate between "genuine emotional injuries and fictitiousones as well as between those that are serious enough to warrantlegal redress and those that are not." Daniel Givelber, The Rightto Minimum Social Decency and the Limits of Evenhandedness:Intentional Infliction of Emotional Distress by OutrageousConduct, 82 Colum.L.Rev. 42, 44 (January, 1982). Moreover, itseemed inappropriate to provide a "judicial forum for everydispute that leaves someone feeling emotionally abused." Id.The remedy for these concerns was, for the most part, therequirement that the defendant's conduct be "extreme andoutrageous," beyond what a civilized society wouldpermit.36 If the defendants' conduct reached that level of malevolence,plaintiff's pain could almost be presumed. Massachusetts hasadopted this approach, requiring that direct victims demonstrate: (1) that the actor intended to inflict emotional distress or that he knew or should have known that emotional distress was the likely result of his conduct; (2) that the conduct was `extreme and outrageous,' was `beyond all possible bounds of decency' and was `utterly intolerable in a civilized community'; (3) that the actions of the defendant were the cause of the plaintiff's distress; and (4) that the emotional distress sustained by the plaintiff was `severe' and of a nature `that no reasonable man could be expected to endure it.'Agis v. Howard Johnson Co., 371 Mass. 140, 144-145 (1976)(internal citations omitted).
While the Supreme Judicial Court has expanded the tort ofintentional infliction of emotional distress beyond the immediatevictim to include recovery for family members, they, like allcourts, have done so cautiously. In addition to concerns aboutemotional distress claims in general, family member claims raiseconcerns about an expansive group of plaintiffs, creating theneed to limit the scope of liability to a finite class ofpotential plaintiffs. Migliori v. Airborne Freight Corp.,426 Mass. 629, 631 (1998). As the court noted in Migliori, "[e]veryinjury has ramifying consequences, like the ripplings of thewaters, without end. The problem for the law is to limit, legal consequences of wrongs to a controllable degree." Id. (quotingTobin v. Grossman, 24 N.Y.2d 609, 619 (1969)).37
The solution was to require that certain objective tests be metbefore a bystander-family member could bring the claim. Clearly,a family member could claim damage if he or she were actuallypresent when the defendant's extreme and outrageous conduct tookplace. Restatement (Second) of Torts § 46(2) (1965); Nancy P. v.D'Amato, 401 Mass. 516, 522 (1988) (adopting § 46 (2) inMassachusetts).38 But the Supreme Judicial Courtrecognized that actual presence could place the bar too high. Itsuggested, indeed, that where the wrongful conduct was intentional or reckless, the presence requirement might bereconsidered. Id. In any case, with or without presence, thecourt required "both (a) substantially contemporaneous knowledgeof the outrageous conduct and (b) a severe emotional response."Id.; Anthony H. v. John G., 415 Mass. at 199.
The question here is how to apply the "substantiallycontemporaneous" requirement in this case. What was it thatEdward Greco had to know, and when, in order to qualify: Was itenough to suffer distress because of the conviction itself, ordid he need to know it was a wrongful conviction (because he infact knew his father to be innocent), or a wrongful convictionfor which the FBI was the likely culprit, or did he need to knowthat is was a wrongful conviction actually caused by FBImisconduct?
The government argues that Greco's distress had to be caused byactual knowledge of the FBI's misconduct in suborning perjuryduring his father's trial, information which he did not haveuntil later. See Zachary v. Centrus Premier Home Care, Inc.,1999 WL 1295110, *2 (Mass.Super. Oct. 15, 1999) (permittingnegligent infliction of injury claim to proceed without presenceof family member at the time of the injury, rejecting intentionalinfliction claim because knowledge of the outrageous conduct didnot happen until the day after the conduct.) I disagree. There can be no doubt that the FBI's conduct inframing Greco's father for a crime he did not commit — if proved— was outrageous, beyond civilized standards. Greco did not knowthe FBI's involvement precisely at the moment his father wassentenced to death, but he suspected as much. He knew that hisfather had been in Florida at the time of Deegan's murder, and hesuspected FBI involvement. All of the concerns that the SJC hadwhen it applied the "contemporaneous" requirement are satisfiedby the facts here: Greco is not a member of an expansive class ofplaintiffs, far outside the zone of foreseeable victims of thegovernment's "outrageous" conduct. Nor are his claims frivolousor contrived. It is difficult to imagine conduct more outrageous,more removed from what this country stands for, than the conductalleged here.
Moreover, Greco's situation is distinguishable from thoseaddressed by the Massachusetts courts, where bystanders, who hadabsolutely no knowledge of the harm at the time it occurred,experienced distress later. In Nancy P., the Supreme JudicialCourt affirmed the dismissal of a mother's claim for intentionalinfliction of emotional distress based on the defendant's sexualabuse of her daughter. The mother did not know that the abusehad occurred at all until one year after the incident.39 In Heinrich v. Sweet, the court also dismissed familymembers' claims for intentional infliction of emotional distress.The family members suffered distress when they discovered thattheir relatives had been subjected to involuntary medicalexperimentation thirty or forty years before.49 F. Supp. 2d at 39-40.40 At thetime of the experimentation, however, the plaintiffs did not knowof the misconduct.
2. Statute of Limitations
If Greco knew enough about the defendants' wrongful conduct in1968 to satisfy the requirements of the bystander claims, so thegovernment argues, he should have sued two years after he hadattained the age of majority.41 Indeed, the governmentsuggests that Greco's argument that he knew enough to maintainhis emotional distress claim and did not know enough to bringsuit are mutually exclusive. These challenges are analytically distinct. One addresses whenthe elements of the cause of action were met. The otherchallenges Greco's diligence in bringing suit. The statute oflimitations rules and the rules limiting the scope of intentionalinfliction of emotional distress claims are not mirror images ofeach other. They were created to address very different concernsand eliminate potential claims for very different reasons. Thatthey both speak in terms of "time" does not mean they representpoints along a single line.
Edward Greco does not contest the fact that he did not presenthis administrative claim to the FBI until June 10, 2002. Hecontends, with reason, that he did not remotely have enoughinformation to sue anyone until 2000, when the government wasforced to disclose what it had done.
Under the FTCA's statute of limitations, a tort claim broughtagainst the United States is "forever barred" unless it ispresented in writing to the appropriate federal agency within twoyears after the claims accrues. 28 U.S.C. § 2401(b). It is ajurisdictional prerequisite. Skwira v. United States,344 F.3d 64, 71 (1st Cir. at 71. Moreover, the statute of limitations mustbe strictly construed. Kubrick, 444 U.S. 111, 117-118 (1979).
Here, the case law the government cited earlier — when a claim"accrues" — is relevant. While a tort claim generally accrues atthe time of the plaintiff's injury, Kubrick, 444 U.S. at 120, in certain circumstances, courts have tolled the runningof the statute of limitations. Edward Greco argues that thestatute should be tolled by the discovery rule, by the doctrineof equitable tolling, and because of the government's fraudulentconcealment of the truth.
I agree. In 1968, Edward Greco had only his strong suspicionsbut no proof of what the FBI had actually done; he could not getthe proof until 2000 because of the FBI's continuing malfeasance.
a. The Discovery Rule
The United States argues that Edward Greco knew or should haveknown of the FBI's alleged subornation of perjury through Barbozaat the time the trial and conviction based on two facts: EdwardGreco knew that his father was in Florida on the night of theDeegan murder and further, his father's defense was that the FBImanipulated Barboza's testimony. Edward Greco counters that evenassuming these facts to be true, knowing that his father wasinnocent and believing his father's defense, is not the samething as having proof sufficient to bring a suit. Indeed, thegovernment's position is profoundly disingenuous. Had EdwardGreco sued earlier, when the government was actively deceivingeveryone, including parole boards, not to mention governors, theeffort would have been fruitless. I agree with the plaintiff; thediscovery rule justifies filing the claim in 2002. Although the Supreme Court recognizes application of thediscovery rule in cases involving concealment, medicalmalpractice, and latent disease, it has not explicitly barred theuse of the discovery rule in cases like Edward Greco's. Seegenerally McIntyre v. United States, 367 F.3d 38 (1st Cir.May 10, 2004); see also Skwira, 344 F.3d at 74-75. Under therule, a claim accrues once a "plaintiff knows, or in the exerciseof reasonable diligence should have known, the factual basis ofthe cause of action, including the fact of the injury and theinjury's causal connection to the government." Cascone v. UnitedStates, 370 F.3d 95, 104 (1st Cir. May 27, 2004); McIntyre,367 F.3d at 60; see also Skwira, 344 F.3d at 82-83. Whether aplaintiff, in the exercise of reasonable diligence, should havediscovered the necessary facts is an objective inquiry.Cascone, 370 F.3d at 104. "A claim does not accrue when aperson has a mere hunch, hint, suspicion, or rumor of a claim,but such suspicions do give rise to a duty to inquire into thepossible existence of a claim in the exercise of due diligence."McIntyre, 367 F.3d at 52 (emphasis in original omitted)(quoting Kronisch v. United States, 150 F.3d 112, 121 (2d Cir.1998)).
In Bennett v. F.B.I., 278 F. Supp. 2d 104 (D.Mass. 2003), thecourt rejected a statute of limitations argument in a similar FBIcover-up. The plaintiff, administrator of the estate of anindividual allegedly killed by Flemmi in 1967, sued the FBI forwrongful death based on FBI agents' involvement in the murder and cover-up of Flemmi's involvement. The government argued that theadmission by the decedent's son that he witnessed FBI agentsvisit his family home and threaten his father days before themurder signaled that the son immediately suspected the FBI'sinvolvement. To the contrary, the Court found that although theplaintiff believed that Flemmi and Salemme killed his fatherduring the late 1960s (they had been indicted but charges weredropped), the "knowledge of the identity of the immediatetortfeasors did not then put the plaintiff . . . on notice thatthe FBI might have some responsibility for [the] death. Afterall, the FBI is generally thought to be concerned with lawenforcement and not an outlaw itself." Bennett,278 F. Supp. 2d at 10 (emphasis in original).
In McIntyre, the First Circuit supported this conclusion —that a plaintiff must be on notice of the government'sinvolvement — in the same FBI cover-up context.367 F.3d at 54-57. The facts in McIntyre were even more specific than thoseoffered here — numerous news reports and a court hearingdescribing Flemmi and Bulger's involvement in decedent's (an FBIinformant) murder, the FBI had compromised an investigation ofFlemmi and Bulger, and the FBI had leaked other informantidentities to Flemmi and Bulger. However, the Court tolled thestatute of limitations as to the estate of McIntyre because evena reasonable inquiry based on these facts would have been thwarted by the FBI's unwillingness to releaseinformation.42 Id.
Here, Edward Greco may have believed in his father's innocenceat the time of trial. He may have believed that Barboza committedperjury, and even suspected, based on his father's defense, thatthe FBI had a hand in it. But he could not have known — the factsas alleged are so shocking — that the FBI was enabling,encouraging, and covering up the perjury. Indeed, like theplaintiffs in Bennett and McIntyre, Edward Greco could nothave discovered the truth until 2000 no matter how hard he workedat it. The FBI's involvement was "inherently unknowable" even"incapable of detection by the wronged party through the exerciseof reasonable diligence." Gonzalez v. United States,284 F.3d 281, 288-89 (1st Cir. 2002); see also Attallah v. UnitedStates, 955 F.2d at 780 (applying discovery rule wheregovernment agents were indicted for underlying crime over fouryears after committed because plaintiffs could not discover government involvement, especially where police did nothave sufficient information to bring charges for fouryears.)43
b. Equitable Tolling and Fraudulent Concealment44
The same analysis applies to Edward Greco's claim of equitabletolling. The rebuttal presumption of equitable tolling applies tosuits against the United States. See Irwin v. Dep't ofVeterans Affairs, 498 U.S. 89, 95-96 (1990); Gonzalez,284 F.3d at 291-93 (analyzing whether FTCA statute of limitations wasequitably tolled but rejecting plaintiff's arguments on factualgrounds). The doctrine "suspends the running of the statute oflimitations if a plaintiff, in the exercise of reasonablediligence, could not have discovered information essential to thesuit." Gonzalez, 284 F.3d at 291. The similar doctrine offraudulent concealment tolls the statute of limitations "where aplaintiff has been injured by fraud and remains in ignorance ofit without any fault or want of diligence or care on his part."Salois v. Dime Sav. Bank of New York, FSB, 128 F.3d 20, 25 (1st Cir. 1997). The First Circuit has outlined the two conditionsunder which the statute will be tolled: First, the defendant raising the limitations defense must have engaged in fraud or deliberate concealment of material facts related to the wrongdoing. Second, the plaintiff must have failed to discover these facts within the normal limitations period despite his or her exercise of due diligence.Gonzalez, 284 F.3d at 292.
The Greco complaint meets these tests. The statute oflimitations should be tolled until 2000 — when the informationwas finally made available — making Edward Greco's claim timely.
B. Loss of Consortium
An action for loss of consortium may be maintained underMassachusetts law where such loss is shown to arise from tortiousinjury to one's family member caused by a third party. SeeAgis, 371 Mass. at 146; Mouradian v. General Elec. Co.,23 Mass. App. Ct. 538, 544 (1987). The government argues that a lossof consortium claim cannot be based on the tort of maliciousprosecution and that Edward Greco's claim in particular must failbecause it is based on his father's malicious prosecution claimthat did not survive his death.
The government relies on Suarez v. Belli, 1997 WL 39918(Mass.Super. Jan. 13, 1997), in which the court noted that it is"not aware of any authority that would permit loss of consortiumdamages for the . . . malicious prosecution claims against [thedefendant]." But the court did not explain its conclusion, much less cite to supporting authority. And it flies in the face ofother trends in Massachusetts law. For example, while othercourts have limited loss of consortium claims to those involvingan underlying claim for physical damages to the wronged spouse,see Browning-Ferris Indus., Inc. v. Lieck, 881 S.W.2d 288(Tex. 1994), Massachusetts has not. It allows for loss ofconsortium damages based on a spouse's non-physical injuries.See Agis, 371 Mass. at 146-47 (allowing a husband's loss ofconsortium claims deriving the wife's claim against formeremployer against the wife); Suarez, 1997 WL 33918 at *4(allowing loss of consortium recovery based on intentionalinfliction of emotional distress).
Indeed, even though the tort of loss of consortium is "derivedfrom the marital relationship and the rights attendant upon it,"Prosser and Keeton on Torts (5th Ed. 1984) at 932, Massachusettslater expanded it to include claims by children as well. Seealso, Ferriter v. O'Connell's Sons, Inc., 381 Mass. 507(1980) (recognizing child's claim for loss of parental societyand for mental anguish deriving from employer's negligence andobservations of their father's pain).45 See alsoProsser and Keeton supra at 931. While the most clear cutinjuries that would deprive a family member of services arephysical injuries to a parent, a spouse or child should be able to recover for other torts, including malicious prosecution, solong as an actual loss of consortium resulted. Id. at 932.
Numerous courts outside the jurisdiction have recognized thewisdom of this position. See Minion v. Gaylord's InternationalCorp., 541 So.2d 209 (4th Cir. 1989) (children could recover forloss of consortium based on mother's malicious prosecution claimwithout physical injury to mother); Lynch v. Omaha World-HeraldCo., 2003 WL 21339670 (D. Neb. June 10, 2003) (allowing loss ofconsortium recovery for malicious prosecution because claimshould not necessitate physical injury); Rivers v. Ex-Cell-OCorp., 300 N.W.2d 420 (Mich.Ct.App. 1980); Zalewski v.Gallagher, 150 N.J. Super. 360 (1977); Dunn v. Ala. Oil & GasCo, Inc., 299 S.W.2d 25 (Tenn.Ct.App. 1957).
Edward Greco clearly has alleged the loss of his father'sservices. His father was physically removed from the family forover twenty years, before he died in prison. He could not enjoy anormal relationship with his father and his father's financialsupport.
The government also argues that the loss of consortium claimcannot stand after the underlying claim has been extinguished bythe parent's death.46 I need not decide whether amalicious prosecution claim survives Louis Greco's death at this time.Edward Greco is not asserting a derivative claim for maliciousprosecution. Edward Greco is seeking redress for his injury,not his father's. I disagree with the government's argument thatany cause of action simply relating to malicious prosecutionnecessarily requires that I decide this issue. In any case, evenif Louis Greco's malicious prosecution claim does not survivedeath, that should only mean that his estate cannot recover forthe tort against him. It should not bar the introduction of proofregarding the malicious prosecution in the context of anindependent claim of emotional distress by his son, or loss ofconsortium claims by other family members.
The Supreme Judicial Court has held that a "claim for loss ofconsortium is independent of the damage claim of the injuredspouse" because each spouse is "enforcing an independent right."Fletch v. General Rental Co., 383 Mass. 603, 607-08 (1981) (andcases cited). Thus, a plaintiff claiming loss of consortium neednot surmount the defenses asserted against the injured party.See id.; Worcester Ins. Co. v. Fells Acres Day School,Inc., 408 Mass. 393, 414 (1990) (rejecting contention thatparent's loss of consortium claim based on assault of child wasbarred by insurance policy language affecting validity of child'sclaim); Fletch, 383 Mass. at 607-08 (finding wife's loss ofconsortium claim was not subject to same defenses — herecontributory negligence — as husband's negligence claim). If itis the case that Edward Greco's father may not bring the underlying maliciousprosecution action because he died in jail, that would notprevent Edward Greco from asserting his independent rights.
C. Civil Conspiracy
The United States argues that Greco's civil conspiracy claimshould be dismissed first, because the underlying torts fail andsecond, because the United States and its employees constitute asingle legal entity that cannot conspire with itself. As to thefirst claim, the government's argument fails because Edward Grecohas asserted valid underlying actions.
The second theory also fails. Under the intercorporateconspiracy doctrine, a corporate officer cannot be held toconspire with his own corporation. The idea is that a corporationcannot conspire with its own employees insofar as they are actingfor the corporation. The First Circuit has held that theexception should not be read broadly because
[t]he cases employing it have rested in large part on precedent drawn from the antitrust field, where considerations underlying the need for an `intracorporate' exception to ordinary conspiracy principles are very different. The evil at which the `conspiracy' section of the Sherman Act, 15 U.S.C. § 1, is aimed is an evil that exists only when two different business enterprises join to make a decision, such as fixing a price, that in a competitive world each would take separately. Moreover, an individual decision to do the same thing is not only legitimately socially useful but also may often require joint decision-making by managers within a single enterprise. . . . Indeed, we do not see why [the exception] should extend — if at all — beyond the ministerial acts of several executives needed to carry out a single discretionary decision.Stathos v. Bowden, 728 F.2d 15, 20-21 (1st Cir. 1984) (emphasisin original) (internal citations omitted).
Courts have refused to apply the exception in situations suchas that alleged by Edward Greco. Id. (finding exception did notapply to § 1985(3) conspiracy claim for employment discriminationby municipal officers); Broderick v. Roache, 1992 WL 512164 (D.Mass. Oct. 22, 1992) (refusing to apply exception where defendantpolice officers engaged in pattern of harassment and retaliationto limit plaintiff's speech). The FBI allegedly engaged in aseries of actions to cause Edward Greco emotional distress andloss of consortium and continued to conceal their actions fordecades. This activity can hardly be labeled as a ministerial actto carry out a single decision.
Thus, the United States' motion to dismiss claims by EdwardGreco is DENIED.
VI. CONDON'S AND WALSH'S MOTIONS TO DISMISS
Defendants Condon and Walsh move separately to dismiss theclaims against them. Specifically, Condon, an FBI agent, moves todismiss the Bivens claims, asserted by the family members ofPeter Limone and Enrico Tameleo because the families do notallege conduct that was intentionally directed at interferingwith the family relationship as required by the First Circuit [Limone docket entry # 217].47 Condon asserts the samedefense against Joseph Salvati's family members, and additionallymoves that the Salvati complaint be dismissed based on Condon'squalified and/or absolute immunity [Salvati docket entry # 17].Defendant Walsh, a Boston Police Officer, asserts identicalarguments in support of dismissing the § 1983 claims asserted byJoseph Salvati's family members [Limone docket entry # 221].
For the reasons discussed below, Walsh's motion is GRANTED,Condon's motion against the Limone and Tameleo family members isGRANTED, and Condon's motion against the Salvati plaintiffs isGRANTED in part and DENIED in part.
A. Claims by Family Members
Condon and Walsh argue that the family member plaintiffs (wivesand children of the individuals who were themselves maliciouslyprosecuted) in the Limone/Tameleo and Salvati actions have failedto state actionable Bivens claims against Condon and a § 1983claim against Walsh because the conduct they allege was notdirectly aimed at severing or affecting their familialrelationships.
The law with respect to constitutional causes of action (underBivens for the federal officials, and § 1983 for state officials) is quite different from that concerning state tortactions under the FTCA. Under First Circuit law family memberclaims of the sort alleged here cannot stand In ValdiviesoOrtiz v. Burgos, 807 F.2d 6, 8 (1st Cir. 1986), the FirstCircuit made clear that governmental action that affects a familyrelationship only incidentally is not a sufficient basis for aconstitutional due process claim. The Court affirmed the districtcourt's granting of summary judgment for defendants on a § 1983claim brought by the stepfather and siblings of an inmate beatento death by prison guards because the family did not have aconstitutionally protected interest in the companionship of theirson and brother. 807 F.2d at 8.
The Court noted that the Supreme Court has only protected theparent-child relationship in two types of situations: First, whenthe government interferes with certain particularly privatefamily decisions — whether to procreate, whether to school one'schildren in religious as well as secular matters, defining the"family" with whom one chooses to live — and second, when thegovernment interferes with the rearing of young children. SeeValdivieso Ortiz, 807 F.2d at 8. Neither interest wasimplicated in Valdivieso Ortiz, nor is it at issue here. Seealso Soto v. Flores, 103 F.3d 1056, 1062 (1st Cir. 1997);Gonzalez Rodriguez v. Alvarado, 134 F. Supp. 2d 451, 452 (D.Puerto Rico, 2001); Manarite v. Springfield, 957 F.2d 953, 960(1st Cir., 1992) (holding that a daughter had no liberty interestprotected by the due process clause in her familial relationship with her fatherin the absence of state interference with "certain particularlyprivate family decisions" (citing, e.g. Griswold v.Connecticut, 381 U.S. 479 (1965); Moore v. City of EastCleveland, 431 U.S. 494 (1977)) or a state attempt to change oraffect the relationship of parent and child in furtherance of alegitimate state interest (citing, e.g. Santosky v. Kramer,455 U.S. 745 (1982); Stanley v. Illinois, 405 U.S. 645(1972))).48
The Salvati plaintiffs attempt to shoehorn their claims into aBivens or § 1983 paradigm by alleging that Condon and Walshconspired to deprive them of their right to free access tocourts.49 Specifically, they allege that the cover-upconspiracy: preclud[ed] plaintiffs from learning the bases of their instant claims for relief; submitting, among other things, administrative claims for relief upon the FBI . . . and proceeding thereafter to the courts, to secure civil judgments and damages, on all claims, demands and causes of action which lie against all those responsible and otherwise answerable for the wrongful conviction of Joseph Salvati. . . . Plaintiffs are correct that there is a constitutional right of access to the courts. See Downes v. Bidwell, 182 U.S. 244, 282 (1901); Rogan v. City of Boston, 267 F.3d 24, 28 (1st Cir. 2001). The right is grounded in the Article IV Privileges and Immunities Clause, the First Amendment Petition Clause, the Fifth Amendment Due Process Clause, and the Fourteenth Amendment Equal Protection and Due Process Clauses. See Christopher v. Harbury, 536 U.S. 403, 415, n. 12. In a so-called "backward-looking" denial of access to courts claim,50 "the official acts claimed to have denied access may allegedly have caused the loss or inadequate settlement of a meritorious case, the loss of an opportunity to sue, or the loss of an opportunity to seek some particular order of relief". See id. at 414 (internal citations omitted).
However, where the right to access is ancillary to theunderlying claim, "without which a plaintiff cannot have sufferedinjury by being shut out of court," id. at 415, the SupremeCourt requires that the underlying cause of action be describedspecifically in the complaint, so as to provide notice to thedefendant and an opportunity to challenge its viability. Seeid. at 416. The complaint of the Salvati plaintiff family members is notsufficient. General statements regarding the "civil judgments anddamages, on all claims, demands and causes of action which lieagainst all those responsible," do not meet the level ofspecificity required by the Supreme Court. See id. (rejectingBivens claim by widow of murdered Guatemalan citizen torturedby captors affiliated with CIA and subjected to federalofficials' concealment of information about husband for lack ofspecificity in identifying underlying cause of action and remedynot currently available); Estate of Halloran v. United States,268 F. Supp. 2d 91, 97 (D. Mass. 2003) (estate of individualkilled by Flemmi failed to state denial of access claim becausegeneral statement that "estate was deprived its right to seek acivil remedy from 1982 to the date of this Complaint" wasinsufficient under Harbury).51
Therefore, Walsh and Condon's motions to dismiss the Bivensclaims individually asserted by the Limone, Salvati, and Tameleoplaintiff family members are GRANTED. These motions do notaffect the claims asserted directly by Peter Limone, EnricoTameleo, and Joseph Salvati or their representatives in any way.
B. Qualified and Absolute Immunity on all Bivens Claims Condon also argues that based on an individual analysis of thespecific conduct alleged against him that he is entitled toqualified immunity because his alleged conduct did not violateany Constitutional rights that were clearly established at thetime of the alleged offenses. Specifically, he claims qualifiedimmunity for non-disclosure of Brady materials and allegationsrelating to false testimony. He also claims absolute immunity forhis trial testimony.
I have already addressed the issues of qualified and absoluteimmunity for all of the defendants, including Condon, in my priordecision, Limone, 271 F. Supp. 2d at 365-68, which was upheldby the First Circuit. Limone, 372 F.3d 39. While the Salvatiplaintiffs were not party to the prior motion to dismiss, thesame reasoning clearly applies.
Condon's argument that his specific behavior warrants adifferent finding than that already reached by this Court is notremotely persuasive. The Salvati complaint specifically allegesthat Condon (1) was partners with Rico in November 1965; (2) Ricoand Condon were both members of the joint federal/state taskforce investigating the Deegan murder; (3) Rico, Condon, andother FBI agents failed to follow proper procedures andguidelines with respect to the selection, approval, andmonitoring of James Flemmi and Steven Flemmi as informants; (4)in March 1967 Rico and Condon targeted Barboza as an informant;(5) Rico and Condon had multiple meetings with Barboza; (6) Barboza told Rico and Condon that he would not implicate JamesFlemmi but would implicate Salvati; (7) Rico and Condon assistedthe Suffolk District Attorney in connection with the trial, inparticular preparing Barboza to testify; (8) Rico and Condon werepresent at a meeting between Barboza and Stathopolous where thetwo coordinated their testimony against Salvati; (9) Condontestified in the Deegan murder trial that he believed Barboza'stestimony was "pure" and that he had done everything in his powerto ensure that; (10) Rico and Condon provided Barboza as awitness knowing he would falsely implicate Salvati; and (11) in1971 Rico and Condon went to California to intercede on Barboza'sbehalf in criminal charges against him in an effort to ensureBarboza's continued silence regarding his false testimony in theDeegan murder trial.
In addition to the allegations discussed in my prior opinion,these facts asserted in the Salvati Complaint are sufficient tosurvive a motion to dismiss. Condon's renewed attempt at ashriveled caricature of the facts does not affect my priorfindings. Therefore, Condon's motion to dismiss all of the claimsagainst him on immunity grounds is DENIED.
For the foregoing reasons, the United States' motions todismiss [Limone docket entry # 183, Salvati docket # 6, and Grecodocket entry # 7] are hereby DENIED. Walsh's motion is GRANTED (Limone docket entry # 221). Condon's motion againstthe Limone and Tameleo family members is GRANTED (Limone docketentry # 217), and Condon's motion against the Salvati plaintiffsis GRANTED in part and DENIED in part (Salvati docket entry #17).
1. The First Circuit heard an interlocutory appeal on mydenial of motions to dismiss based on qualified immunity.
2. I made clear at the January 23, 2004, hearing on thesemotions that defendants would not be permitted interminablerounds of motions to dismiss. I ordered that any additionalmotions to dismiss had to be filed by February 6, 2004. Thisdecision addresses all remaining motions to dismiss. No furthermotions will be accepted by the Court.
3. Subsequent to filing these motions, defendant Paul Ricodied on January 16, 2004. His attorney has filed a Suggestion ofDeath [docket entry # 211]. Rico has since been terminated as aparty in this case and no personal representative has beenappointed. I have granted the plaintiffs' motion to extend timeto name Rico's personal representative as a defendant in thiscase.
4. There are four groups of plaintiffs in this case who havefiled separate complaints: the Limone/Tameleo plaintiffs (onbehalf of themselves and Henry Tameleo), the Werner plaintiffs,(on behalf of themselves and Louis Greco), plaintiff EdwardGreco, and the Salvati plaintiffs. The claims of the Salvatiplaintiffs were not addressed in my prior decision. All of theseactions have been consolidated. Each set of plaintiffs ispursuing separate claims and relief, but I address their claimstogether in this decision. I draw from the facts alleged in allfour complaints.
5. In its previous motion to dismiss, the government arguedthat plaintiffs' malicious prosecution claims were barred by thediscretionary function exception. I rejected that argument. Thegovernment now argues that the discretionary function exceptionbars plaintiffs' claims for negligent selection, supervision, andretention of the individual agents.
6. Condon also moves to dismiss claims by Edward Greco on thesame ground [Limone docket entry # 203]. This motion is mootbecause Edward Greco voluntarily dismissed his claims againstCondon [docket entry # 212] and Walsh [docket entry # 227]. Noneof Louis Greco's other family members assert Bivens claims ontheir own behalf.
7. Condon also moves to dismiss the state law claims assertedagainst him by the Salvati plaintiffs for false imprisonment,malicious prosecution, loss of consortium and intentionalinfliction of emotional distress (Counts V-IX). Under theWestfall Act, the Attorney General may certify that a federalemployee was acting within the scope of his/her employment at thetime of an incident that serves as the basis for a common lawtort against the employee. See 28 U.S.C. § 2679(d)(1). If theemployee is certified, then he or she is immune from common lawtort claims arising from certified conduct and the United Statesis substituted for those claims. Id. In this Court's prior decision in Limone, the United Stateswas substituted for several individuals, including Condon, aftercertification. 271 F. Supp. 2d at 365. The Salvati plaintiffswere not part of the case at the time of that decision. Now, theAttorney General has filed a certification of defendants Condon,Rico and Handley in the Salvati case [Salvati docket entry #28].Therefore, the claims against these individuals are DISMISSEDand the United States is substituted.
8. Plaintiffs' Complaints describe these allegations indifferent ways. Specifically, the Salvati Complaint alleges thatBarboza told Rico and Condon that he would falsely testify thatSalvati and not Flemmi was a participant in the murder becauseSalvati had borrowed $400 from a friend of Barboza's and had notrepaid the debt and that Salvati had "disrespected" Barboza. TheLimone/Tameleo Complaints only state that the agents knew Flemmiwas involved. The Werner Complaint states that the agents knewBarboza would commit perjury by testifying that Flemmi was notinvolved in the murder and by implicating Greco and otherinnocent persons in the murder.
9. Bailey testified about his conversation with Barboza beforea Congressional panel in 2000. According to Bailey, Barboza saidthat when Rico and Condon questioned him about the Deegan murder,he told Rico and Condon directly that he would falsely implicatepersons whom the FBI wanted to be convicted of murder if the FBIpermitted him, in turn, to falsely implicate other persons whomhe wanted incarcerated. One way or the other, plaintiffs allegethat Barboza falsely implicated Greco, Limone, Salvati, andTameleo in the murder.
10. Tamaleo's Complaint in this case does not detail the stepshe took to reverse his conviction before his death in prison in1985.
11. Although the Salvati Complaint does not specifically quotefrom the nolle prosequi issued in January 2001, since thecharges against both Limone and Salvati were dropped in the samecourt on the same day, I assume that Salvati was named in thesame nolle prosequi.
12. The Court did dismiss all state law claims brought by theLimone, Tameleo, and Werner plaintiffs against agents Rico,Handley, and Condon and substituted the United States as thedefendant on these claims because the Attorney General certifiedthat the agents were acting within the scope of their employmentduring the incidents alleged. Under the Westfall Act, suchcertification provides immunity to the individual officers.28 U.S.C. § 2679(d)(1); Lyons v. Brown, 158 F.3d 605 (1st Cir.1998).
13. The relevant portion of 28 U.S.C. § 2680 states: The provisions of this chapter and section 1346(b) of this title shall not apply to — (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, that, with regards to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising on or after the date of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. For purpose of this subsection, "investigative or law enforcement officer" means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law.28 U.S.C. § 2680(h).
14. As discussed infra, the Supreme Court has held that acause of action for malicious prosecution does not accrue untilafter the plaintiff's conviction has been terminated in hisfavor. Heck v. Humphrey, 512 U.S. 477, 489 (1994).
15. 28 U.S.C. § 2680 states: The provisions of this chapter and section 1346(b) of this title shall not apply to — . . . (b) Any claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter. (c) Any claim arising in respect of the assessment of collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs . . . (e) Any claim arising out of an act or omission of any employee of the Government in administering the provisions of sections 1-31 of Title 50, Appendix . . . (j) Any claim arising out of the combatant activities of the military . . . (l) Any claim arising from the activities of the Tennessee Valley Authority. (m) Any claim arising from the activities of the Panama Canal Company. (n) Any claim arising from the activities of a Federal land bank . . .
16. Several courts have interpreted the FTCA's effective dateprovision to apply to "when the claims accrued rather than whenthe allegedly tortious conduct occurred." W.C. & A.N. Miller Co.v. United States, 963 F. Supp. 1231, 1237 (D.D.C. 1997) (findingFTCA applied to injuries to property discovered after January 1,1945 — the FTCA effective date — but caused by Army's burial ofmunitions on property before 1945) (citing Carnes v. UnitedStates, 186 F.2d 648 (10th Cir. 1951) (FTCA permitted suit whenchild who took home an explosive device from a crashed Armyairplane in 1944 was injured in February 1945 when deviceexploded); In re Silver Bridge Disaster Litigation,381 F. Supp. 931 (S.D.W. Va. 1974) (negligence claim based on Army'sbuilding bridge in 1928 accrued in 1967 when the bridgecollapsed)).
17. During these raids, federal agents kicked in the doors ofindividuals' homes without warning, shouted obscenities andthreatened the occupants with drawn weapons. After a brief periodof terrorizing the inhabitants and ransacking the homes, theagents realized they entered the wrong homes and left without aword of apology or explanation. The history of the Collinsville,Illinois raids is fully detailed in The Federal Tort Claims ActIntentional Torts Amendment: An Interpretive Analysis, 54 N.C.L.Rev. 497, 500 (1976).
18. In an examination of the legislative history of thebroader act, the three objectives most often mentioned are:"ensuring that `certain government activities' not be disruptedby the threat of damage suits; avoiding exposure of the UnitedStates to liability for excessive or fraudulent claims; and notextending the coverage of the Act to suits for which adequateremedies were already available." Kosak v. United States,465 U.S. 848, 858 (1984). Adopting plaintiffs' interpretation of theact would not offend any of these rationales: (1) governmentactivities would not be disrupted because of the unique facts atissue; (2) for the same reason, this case does not expose thegovernment to excessive or fraudulent claims; and (3) plaintiffsdo not possess an alternative remedy against the United States,as Congress itself indicated in the legislative history to §2680(h), because Bivens claims alone are usually insufficientto rectify government misconduct because they are againstindividual officers who are often judgment-proof.
19. The favorable termination requirement was not even fullydeveloped when these cases were decided. See Heck,512 U.S. 477, 483-84.
20. In any event, the Salvati plaintiffs argue that the datetheir claims "arose" should be tolled because of the fraudulentconcealment of the underlying facts by the defendants. To besure, in an ordinary case, fraudulent concealment may relate onlyto the statute of limitations issues and not sovereign immunitywaivers. Liuzzo, 508 F. Supp. at 927-928; Heinrich v. Sweet,118 F. Supp. 2d 73, 80 (D. Mass. 2000) (holding "a tollingprovision, whether it be fraudulent concealment or the discoveryrule, does not alter the date on which the action arose" infinding that plaintiff's wrongful death claim under Massachusettslaw arose at the time of death even if it accrued at a laterdate), rev'd on other grounds 308 F.3d 48 (1st Cir. 2002).However, in this case the issue is murkier. The agents were notjust concealing what they had done in 1968; they compounded itwith new misconduct after 1974. I do not have to resolve theissue since I conclude that the malicious prosecution claim, as amatter of law and fact, did not "arise" until after 1974 becauseof new efforts to keep the plaintiffs from being exonerated.
21. In any case, Dimminie was decided before the SupremeCourt's decision in Heck v. Humphrey, which gave specialsignificance to the favorable termination element. See infrasection 4. Moreover, central to the court's conclusion inDimminie was the fact that there had been no fraudulentconcealment of the misconduct by defendants. Obviously, that doesnot apply here.
22. Plaintiffs cite to Ames v. United States, 600 F. 2d 183(8th Cir. 1979). In Ames, the Court affirmed the dismissal ofthe plaintiff's complaint for abuse of process, false arrest andfalse imprisonment because the only acts and omissions upon whichliability could have been based — plaintiff's arrest, confinementand indictment — occurred prior to March 16, 1974.600 F. 2d at 185. But, in a separate analysis, the Court disposed ofplaintiff's malicious prosecution claim. The Court noted thatsince Ames failed to show how the government acted improperlyprior to the grand jury indictment, the complaint lacked anessential element of malicious prosecution. While plaintiffs tryto tease out the holding that pre-1974 conduct could stillsupport a malicious prosecution claim, the opinion says no suchthing. It simply does not address the issue with which thisdecision is concerned.
23. In fact, Heinrich is a perfect example of thedistinction the Court made in Liuzzo, 508 F. Supp. at 927-28 n.2. The prospective application of the statute is set — it appliesto causes of actions arising after January 1, 1974. When thecause of action "accrued" have to do with plaintiff's diligencein finding out about the claim.
24. The same is true for the other causes of action includedin § 2680(h). To bring a suit for battery, a plaintiff need onlyallege that the defendant intended to cause harmful or offensivecontact with the plaintiff, or an imminent apprehension of suchcontact, and a harmful contact resulted. See Waters v.Blackshear, 412 Mass. 589, 590 (1992). An assault actionrequires proof of an attempted battery or putting another in fearof an imminent threatened battery. Commonwealth v. Gorassi,432 Mass. 244, 247 (2000). To bring an abuse of process claim, aplaintiff need only show that: "(1) `process' was used; (2) foran ulterior or illegitimate purpose; (3) resulting in damage."Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760,775-76 (1986) (quoting Jones v. Brockton Pub. Mkts., Inc.,369 Mass. 387, 389 (1975)). False arrest requires a showing ofunlawful confinement by force or threat. Ortiz v. HampdenCounty, 16 Mass. App. Ct. 138, 140 (1983). False imprisonmentrequires proof that defendants imposed by force or threats anunlawful restraint on the plaintiff's freedom of movement.Sarvis v. Boston Safe Deposit & Trust Co., 1994 WL 879797, *3(Mass.Super. 1994).
25. Indeed, one can argue that the favorable terminationrequirement is more than just an essential element of the legalclaim; it is one of the acts comprising it. The tort of maliciousprosecution does not end until there is a favorable termination.If the government believes that only acts are relevant to thedetermination of when a claim arises, then the acts comprisingmalicious prosecution continue until plaintiff is exonerated.
26. The FTCA does not provide a remedy for Constitutionalclaims, only those available under local state law. F.D.I.C. v.Meyer, 510 U.S. 471, 477-78 (1994).
27. In Jones v. City of Chicago, the Seventh Circuit statedin dicta that "at some point after a person is arrested, thequestion of whether his continued confinement or prosecution isunconstitutional passes over from the Fourth Amendment to the dueprocess clause (and after conviction to the Eighth Amendment'scruel and unusual punishments clause. . . .)" 856 F.2d at 994(finding police officers who misrepresented facts and hidexculpatory evidence, resulting in mistrial and dismissal ofcharges, could not be shielded from liability by prosecutor's orgrand jury's actions in furtherance of prosecution). Here, theissue is not just the government's continued withholding ofexculpatory evidence, but its active denials of plaintiffs'requests for such evidence at each judicial proceeding over athirty-year period.
28. These directives are included in the Limone and Tameleoplaintiffs' second amended complaint (attachment A to docketentry # 207), which I have allowed plaintiffs to file. Theamendment supplements plaintiffs' negligent supervision claimsbased on newly discovered facts included in the November 2003written report to the United States House of Representativessubcommittee investigating the FBI's misconduct in relation tothe Deegan murder. As the facts in the report were not availableprior to November 2003, plaintiffs have cause to amend.
29. According to plaintiffs, the United States has producedduring discovery certain editions (and published revisions) ofthe FBI's Manual of Instruction ("MOI"), Manual of InvestigativeOperations and Guidelines ("MIOG"), Manual of Rules andRegulations ("MRR", and Manual of Administrative Operations andProcedures ("MAOP"). The MRR was replaced by the MAOP in 1978.The MOI was replaced by the MIOG in 1977.
30. Edward Greco filed an action separate from his mother,Roberta Werner. Roberta Werner was Louis Greco's wife. RobertaWerner filed an action as the Executrix of the Estate of LouisGreco and the Executrix of the Estate of Louis Greco, Jr., aswell as on her own behalf.
31. The government apparently has not asserted these defensesagainst the other family member plaintiffs, apart from Greco.That is, they have only made the argument that Edward Greco doesnot qualify for "bystander liability" under the relevant caselaw.
32. Of course, the two arguments are somewhat at odds with oneanother: On the one hand, the government argues that Greco knewtoo little about the defendants' role in his father's convictionat the time it took place to qualify for bystander liability. Onthe other hand, it argues that he knew enough at the time of theconviction that he should have brought the case when theconviction took place.
33. As noted above, claims concerning this misconduct havebeen brought by Greco's son, Edward, and by his wife, asadministratrix of his estate, and in her own right; HenryTameleo's son, Saverio, as administrator of the Tameleo estate,and in his own right; and Tameleo's wife, Jeanette. Greco andTameleo died in prison.
34. Edward Greco also argues that the contemporaneousrequirement is inapplicable here because he was a direct victimof the government's misconduct — that the government knew orshould have known that the misconduct directed at Louis Grecowould cause Edward Greco severe distress. The claim stretches theconcept of "direct victim" to its breaking point. Nor is it clearthat Massachusetts law would allow such a claim. For example, inAnthony H. v. John G., 415 Mass. 196 (1993), the victim'syounger brother brought a claim against the defendant. Defendanthad abused the victim, so he argued, and it was foreseeable that,as a result of defendant's acts, the victim would abuse hisbrother in the same way. The Court rejected the claim — refusingto characterize it as a direct victim issue at all — even wherethe jury found the younger brother's abuse was foreseeable to thedefendant. Rather, the court put the case in the category of"bystander" liability and rejected it. There was no evidence thatthe younger brother suffered severe emotional distress uponlearning what happened to the victim.
35. Edward Greco also seems to argue that he suffered distressthroughout his father's incarceration, contemporaneous with theFBI's continuing cover-up. While I agree that the government'smalicious prosecution of the four individuals continued after1974, as described supra, Edward Greco's claim is slightlydifferent. Apart from the distress, he sues for the 1968conviction. To sue for the post-1974 period he must focus on eachindividual act. He has not asserted emotional distress claimssurrounding each of these incidents. The argument that thegovernment continued to commit misconduct every day while Greco,Salvati, Limone, and Tameleo remained imprisoned is too expansivean interpretation as applied to Edward Greco, a third-partyvictim.
36. Thus, while the 1934 Restatement of the Law of Tortsdenied recovery for emotional injury, "even when intentionallyinflicted, if the defendant's conduct did not otherwise amount toa tort," that position was reversed by 1948. Givelber, 82Colum.L.Rev. at 42.
37. As one commentator said: This limitation [of presence] may be justified by the practical necessity of drawing the line somewhere, since the number of persons who may suffer emotional distress at the news of a Presidential assassination is virtually unlimited and the distress of a woman who is informed of her husband's murder 10 years afterward may lack the guaranty of genuineness which her presence on the spot would afford.Restatement (Second) of Torts § 46 cmt. 1 (1965). At the sametime, the Restatement drafters leave open the possibility of abroader rule: The Institute expresses no opinion as to whether there may not be other circumstances under which the actor may be subject to liability for the intentional or reckless infliction of emotional distress.Restatement (Second) of Torts § 46 caveat 1 (1965).
38. Restatement (Second) of Torts § 46(2) states: Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress (a) to a member of such person's immediate family who is present at the time, whether or not such distress results in bodily harm, or (b) to any other person who is present at the time, if such distress results in bodily harm.
39. Even in Nancy P., where the "substantiallycontemporaneous" requirement was first outlined, the court basedits ruling on the lack of evidence of severe distress. It laid"little stress on the absence of substantially contemporaneousknowledge," because the defendant told the victim not to divulgehis conduct. Nancy P., 401 Mass. at 522. Likewise, I aminclined to place less emphasis on an alleged lack ofcontemporaneous knowledge because of the government's activeconcealment of its misconduct. Indeed, Edward Greco's argumentthat the contemporaneous requirement should be waived entirelybecause of the active concealment of the outrageous conduct ispersuasive. In Quinn v. Walsh, 49 Mass.App.Ct. 696 (2000), forexample, the Appeals Court recognized in dicta that where theharm is inherently unknowable, and thus the statute oflimitations is tolled, the court may not apply thecontemporaneous injury requirement. 49 Mass. App. Ct. at 699.While the context was different, the rationale is applicablehere. The courts' goal of limiting fraudulent claims and anexpansive plaintiff class does not comport with denying rightfulclaims for outrageous behavior that was concealed intentionallyfrom the plaintiff.
40. Analyzing the claims with a combination of New York andMassachusetts law, the court found that the plaintiffs did notexperience "`contemporaneous knowledge' of the injury" (NewYork's more liberal standard) and a severe emotional response.Id. at 39.
41. The statute of limitations would not have begun to rununtil Edward Greco reached the age of majority, approximatelyseven years after his father's conviction.
42. The Court held the statute of limitations should not betolled as to another plaintiff, the estate of Wheeler, who didknow the last piece of information necessary to file suit. Bothplaintiffs knew that Flemmi had murdered their family member. TheMcIntyre estate's claim, however, was based on the fact that theFBI had revealed to Flemmi that McIntyre was an informant — afact plaintiff did not know more than two years before filingsuit. The Wheeler estate's claim was based solely on the FBI'sfailure to properly supervise Flemmi as an informant and disclosehis conduct after it was committed — a fact known more than twoyears before suit was brought. Id. at 57-61.
43. The cases relied upon by the government do not alter thisresult, because the plaintiffs in those cases were aware of thegovernment's misconduct at the time of their injuries. SeeBrown v. Nationsbank Corp., 188 F.3d 579 (5th Cir. 1999)(finding statute of limitations accrued when government agentsrevealed scheme in which they had involved plaintiff and tried toconvince him to become an informant through threats andintimidation); Mitchell v. City of Boston, 130 F. Supp. 2d 201,214 (D. Mass. 2001) (finding plaintiff on notice of claim at timeof trial, conviction, and incarceration because he witnessedgovernment agent falsely testify to statements made by plaintiffhimself regarding commission of crime).
44. The equitable tolling and fraudulent concealment analysesare parallel. In the former, the plaintiff could not havediscovered the facts essential to his suit. In the latter, theplaintiff could not have discovered the facts because thedefendant was involved in concealing them.
45. Much of Ferriter was superceded by St. 1985, c. 572, §35, effective December 10, 1985, insofar as it applied toWorker's Compensation claims.
46. This argument — whether malicious prosecution claimssurvive the death of the victim, either under the FTCA or as acomponent of a constitutional claim — has not been raised by thegovernment in connection with the cases brought by other familymembers as administrators or administratrices of the estates ofTameleo or Greco. Thus it has not been fully briefed by theplaintiffs — apart from Edward Greco — directly affected by it.
47. Condon also moved to dismiss claims by Edward Greco onthis ground [Limone docket entry # 203]. This motion is mootbecause Edward Greco voluntarily dismissed his claims againstCondon [docket entry # 212] and Walsh [docket entry # 227]. Noneof Louis Greco's other family members assert Bivens claims ontheir own behalf.
48. If the parent-child relationship does not create dueprocess rights, clearly the spousal relationship will not. TheSupreme Court simply has not protected the relationship betweenmarital partners the way it has the relationship between parentsand their children in cases like Pierce v. Society of Sisters,268 U.S. 510 (1925) and Moore, 431 U.S. 494.
49. They also claim that Condon and Walsh conspired to deprivethem of their right to property, but that argument must either begrouped with access to courts (on the theory that they could havewon money based on state law claims), or with their loss of therelationship (on the theory that Salvati would have provided themwith money himself).
50. The other category of access claims identified by theCourt is "forward looking" because the claim has not been lost,just frustrated by systematic official action to prevent thepreparation or filing of suits — prisoner's access to a lawlibrary to prepare a case, a reader for an illiterate prisoner, alawyer, a challenge to an excessive filing fee, etc. SeeHarbury, 536 U.S. at 413.
51. The Limone/Tameleo plaintiffs filed a response to Condon'smotion [docket entry # 243] citing cases from otherjurisdictions, see, e.g., Baker v. Putnal, 75 F.3d 190 (5thCir. 1996); Curnow v. Ridgecrest Police, 952 F.2d 321 (9th Cir.1991); Bell v. City of Milwaukee, 746 F.2d 1205 (7th Cir.1984), to support the family members claims, but recognizing thatthe First Circuit has rejected these arguments.