Plaintiff's Opposition to DiPiano's Motion to Dismiss Under §1983 and Malicious Prosecution et cetera

#135 Drano Series

Plaintiff John Smith's Opposition to Divorce Attorney DiPiano's
Motion to Dismiss
John Smith's Second Action
Under 42 U.S.C. §1983 and Malicious Prosecution
et cetera
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MASSACHUSETTS
CIVIL ACTION: 03-CV-11895-MLW
François Gouin, Jr.
Plaintiff
v
.
Dori C. Gouin, Esq., a/k/a Dori Faith Chadbourne, in her professional and individual capacities,
John G. DiPiano, Esq., in his partnership, professional, and individual capacities,
Mauser & Mauser,
Timothy M. Mauser, Esq., in his partnership, professional, and individual capacities
Martha D. Mauser, Esq., in her partnership, professional, and individual capacities
Susan James, in her official and individual capacities,
City of Boston
Defendants

_____________________________________________

PLAINTIFF'S OPPOSITION AND MEMORANDUM IN SUPPORT OF HIS OPPOSITION TO MOTION TO DISMISS BY DEFENDANT JOHN DiPIANO

Now comes Plaintiff François Gouin ["Gouin"] of Massachusetts and submits this opposition and memorandum in support of his opposition to the Motion to Dismiss by Defendant John G. DiPiano ["DiPiano"]. A supporting affidavit accompanies this motion.
INTRODUCTION

Here, the facts are NOT in dispute. DiPiano has NOT denied any of the facts Gouin set out in his Verified Complaint. DiPiano claims only that he is not a state actor. DiPiano also has not argued that there are any missing elements of any of the causes of action – State or federal – pled by Gouin. DiPiano claims only that if the §1983 claims are dismissed, then the State claims should be dismissed.

But DiPiano has made numerous misrepresentations and bad-faith spins on known facts throughout his memorandum in support of his motion to dismiss the complaint against him. Most of them Gouin has put into Issue 2, infra. The first objectionable statement, however, appears on page 1 of his memorandum. It states that Gouin failed to mention other actions he has brought. Whether Gouin has brought other actions or not is totally irrelevant to the issues in the motion to dismiss. Its purpose was only a pejorative one: to cast some kind of shadow over Gouin and his counsel. Rather than be periphrastic, Gouin’s counsel prefers to counter DiPiano’s statement with a table. See Table 1.

DiPiano has also claimed throughout his memorandum that Gouin’s counsel made bald assertions, and so forth, but never once did DiPiano identify the page or the line or the sentence or the phrase about which he was periphrastically complaining. See Issue 2, item 9 at p.15, infra, for details and pages of his memorandum on which DiPiano levied his baseless allegations.

ISSUES

Where DiPiano was jointly engaged with the Boston Police Department, he was acting under color of law for purposes of §1983actions.

DiPiano’s nexus argument must fail.


Although DiPiano failed to address the point, he was not a "mere complainant" in this scenario, but was involved to a more "significant and blameworthy degree."

DiPiano acted with malice under color of law.

DiPiano (a) committed lies of omission and commission to the Boston Police Department and to this court, making dismissal of Gouin’s claims under §1983 and §1985(3) under his common-law claims inappropriate and (b) added spins, misrepresentations, and/or omissions in his memorandum.

DiPiano’s lies of omission and commission to the BPD

DiPiano’s spins, misrepresentations, and/or omissions in his memorandum.

State action is not necessary for a claim of conspiracy under §1985(3).

Gouin was deprived of his liberty interest to be free from being falsely accused of a criminal prosecution, to be free from having to answer charges of a baseless criminal prosecution, to be free of retaliation for exercising his right to petition.

Where DiPiano did not contend that Gouin failed to plead the essential elements of (a) malicious prosecution [Count 4], (b) malicious abuse of process [Count 5], (c) common-law conspiracy [Count 6], and (d) intentional infliction of emotional distress [Count 7], dismissal of Gouin's Counts 4 through 7 is inappropriate.

Table 1. Collateral Cases Cited by DiPiano in His Memorandum and in Exh. 1 to That Document

Case Name Docket Number Court Causes of Action Disposition Basis of Disposition

François Gouin, Jr. v. Dori Faith Chadbourne Gouin, Todd Posey, William Toner, Edward McMahon, City of Boston, Police Comm’r, arising out of alleged false arrest of Gouin at the family condo on January 5th, 2001
"COMPANION" CASE
01-CV-10890-RBC U.S. District Court of
Mass., Eastern District See below Active N/A

The causes of action brought were (1) violation of 42 U.S.C. §1983: arrest, (2) violation of 42 U.S.C. §1983: detention and confinement, (3) violation of 42 U.S.C. §1983: strip search, (4) violation of 42 U.S.C. §1983: conspiracy, (5) violation of 42 U.S.C. §1983: refusing or neglecting to prevent, (6) malicious prosecution, (7) malicious abuse of process, (8) violation of Mass. Civil Rights Act (M.G.L. c. 12, §11I), (9) false arrest and imprisonment, (10) assault, (11) battery, (12) conspiracy, (13) intentional infliction of emotional distress

François Gouin, Jr. v. The Honorable Nancy M. Gould, in her judicial and individual capacities, The Honorable Sean Dunphy, in his judicial and individual capacities, the Honorable John J. Irwin, Jr., in his individual and former judicial (CJAM) capacities, et al
THE "JUDGE" CASE
01-CV-11702-GAO U.S. District Court of
Mass., Eastern District See below Dismissed Judicial immunity

The causes of action brought were (1) declaratory judgment re the constitutionality of M.G.L. c. 215, §56A, (2) violation of 42 U.S.C. §1983 (due process and equal protection clauses), (3) violation of 42 U.S.C. §1985(3) (conspiracy), (4) violation of 42 U.S.C. §1983 (deprivation of parental rights by violation M.G.L. c. 208, §30), (5) violation of 42 U.S.C.§1983 (deprivation of parental rights by violation of MCCJA), (6) violation of 42 U.S.C. §1986 (refusing or neglecting to train and to protect and prevent the wrongs conspired to be done), (7) civil RICO, (8) common law conspiracy, (9) violation of G.L. c. 215, §56A, (10) violation of G.L. c. 208, §30 (the removal statue), (11) violation of G.L. c. 209B, §5(a), (12) account annexed (sum-certain debt of Commonwealth to Gouin), (13) intentional infliction of emotional distress, and (14) reserved for negligence claim.
After Judge Gould refused to hear Gouin’s aging motion to recuse, Gouin sued. Within a week of the justices being served, Judge Gould was removed from the case. For a summary of the primary reason for the motion to recuse, see ¶8 on p. 14, infra.

François Gouin, Jr. v. The Honorable Nancy M. Gould, in her judicial and individual capacities, The Honorable Sean Dunphy, in his judicial
and individual capacities,
The Honorable John J. Irwin, Jr., in his individual and for- mer judicial (CJAM) capa- cities, et al
APPEAL OF THE "JUDGE" CASE
02-1144 First Circuit Court of Appeals Appeal of dismis-sal on grounds of judicial immunity and the Eleventh Amendment Pending N/A

François Gouin, Jr. v. Dori Faith Chadbourne Gouin a/k/a Dori Faith hadbourne; E. Chouteau Merrill; Ray- mond Sayeg, Jr.; John G. DiPiano; Gerald L. Nissen- baum (all except Dori Gouin in their professional and individual capacities)
"APPRAISAL" CASE
02-CV-10873-JLT U.S. District Court of Mass., Eastern District Section 1983 action, attempted fraud of between $156,000 and $312,000 (by secreting evidence), and emotional distress Dismissed No state action for federal claim.
Pending state claims may be brought in Mass.

François Gouin, Jr. v The Honorable Lisa A. Roberts, Dori Faith Chadbourne Gouin, a/k/a Dori Faith Chadbourne, E. Chouteau Merrill, Brown Rudnick Berlack Israels, LLP , Gerald L. Nissenbaum, Probate & Family Court Dept. of the Trial Court of the Com. of Mass., Com. of Mass., (all in his or her profes- sional and individual capacities)
"ESCROW" CASE
02-CV-11039-JLT U.S. District Court of Mass., Eastern District Section 1983 causes of action, fraud (unlawful removal of $30,000+ funds from escrow account), §1985(3) (conspiracy), common- law conspiracy, and emotional distress. Dismissed Judicial immunity.
No state action for federal claim.

Pending state claims may be brought in Mass.

STANDARD OF REVIEW
When deciding a motion to dismiss under Rule 12(b)(6), the court must accept as true all well-pleaded factual assertions in plaintiff's complaint, and draw all reasonable inferences from those assertions in plaintiff's favor. Kiely v. Raytheon Co., 105 F.3d 734, 735 (1st Cir., 1997); Hogan v. Eastern Enterprise/Boston Gas, 165 F.Supp.2d 55, 57 (D. Mass., 2001). "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim that would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957) (footnote omitted). Nevertheless, the court may "eschew any reliance on bald assertions, unsupportable conclusions, and opprobrious epithets" [Dartmouth Review v. Dartmouth College, 889 F.2d 13, 16 (1st Cir. 1989) (internal quotations omitted)], as well as "subjective characterizations, optimistic predictions, or problematic suppositions." United States v. AVX Corp., 962 F.2d 108, 115 (1st Cir., 1992 (internal quotations omitted).

ARGUMENTS

Where DiPiano was jointly engaged with the Boston Police Department, he was acting under color of law for purposes of §1983 actions.

DiPiano contends that he cannot be held liable on Gouin's federal civil rights claims because he is a private individual and was not acting under color of state law on 13 May 2002. In a related case in this court, Civil Action #01-CV-10890-RBC, in which Defendant Dori Chadbourne Gouin argued that she, too, was a private individual not acting under color of state law, Magistrate/Judge Collings wrote (in sans serif typeface):

Indeed, . . . there is case law to the effect that people who are solely complainants to, or witnesses for, the police in connection with a prosecution are not deemed to be state actors as a result. See, e.g., Grow v. Fisher, 523 F.2d 875, 879 (7th Cir., 1975). That having been said, however, there is also case law supporting the proposition that to act under color of state law for §1983 purposes does not require that the defendant be an officer of the State. It is enough that he is a willful participant in joint action with the State or its agents. Private persons, jointly engaged with state officials in the challenged action, are acting see "under color" of law for purposes of §1983 actions. Adickes v. S. H. Kress & Co., 398 U.S. 144, 152, 90 S.Ct. 1598, 1605, 26 LEd.2d 142 (1970); United States v. Price, 383 U.S. 787, 794, 86 S.Ct. 1152, 1156, 16 L.Ed.2d 267 (1966).

Dennis v. Sparks, 449 U.S. 24, 27 (1980) (footnote omitted) (emphasis supplied). The First Circuit has reiterated the concept:

A private party's conduct is attributable to the state if the state "has so far insinuated itself into a position of interdependence with [the private party] that it must be recognized as a joint participant in the challenged activity." Barrios-Velazquez v. Asociacion De Empleados Del Estado LibreAsociado, 84 F.3d 487, 494 (1st Cir.l996) (citation and internal quotation marks omitted; alteration in the original).

Camilo-Robles v. Hoyos, 151 F.3d 1, 10 (1st Cir., 1998).
In the complaint the plaintiff alleges that Dori and Posey gave false information to the Toner and McMahon, to wit, "that Gouin had no legal right to be at the condominium property at 58 Temple Street" so as to induce the police to arrest him and thereby gain an advantage in the divorce proceedings and a free place to live respectively. (#1 ¶¶30-41, 63-4) The First Circuit has explained that:

We agree entirely with this appellant's premise that merely initiating a good-faith request for police protection would not attach liability for the subsequent unconstitutional conduct of arresting officers. See, e.g., Burnham v. Collateral Loan Co., 179 Mass. 268, 274, 60 N.E. 617. Such a person does no more than his duty; and to hold him answerable ... for the result of the mistake or misconduct of the officer would be to make the division line of compromise between the right of the individual to his liberty and the right of the public to protection trench too far upon the domain of the latter."); see also 32 Am.Jur.2d False imprisonment §45 "Merely summoning or calling on an officer for protection against a disturbance or trespass or to keep the peace, or to deal with a person accused of crime, is not sufficient participation to impose liability.…"). That tenet, however, does not carry the day, since the evidence presented in this case, albeit largely indirect, adequately supports the conclusion that Anderson was not a "mere complainant," but was implicated in Wagenmann's arrest and imprisonment to a more significant and blameworthy degree.

Wagenmann v. Adams, 829 F.2d 196, 210 (1st Cir., 1987). According to the pleadings, Dori and Posey were more than "mere complainants" in this scenario. Whether the evidence adduced in discovery will ultimately support the allegations that these two defendants are involved to a more "significant and blameworthy degree" is a question not yet ripe for decision.
Next the defendants argue that

Plaintiffs claims for malicious prosecution, malicious abuse of process, and false arrest [and imprisonment] must be dismissed for failure to allege an essential element, namely that Ms. Gouin [Dori] and Mr. Posey requested or procure Mr. Gouin's arrest or prosecution or that they made false statement (sic) leading to the plaintiffs arrest and prosecution.

Defendants Dori C. Gouin's and Todd D. Posey’s Memorandum of Law #22 at 9.
As just noted, however, the plaintiff does assert that Dori and Posey provided false information to the Boston police officers in order to obtain his arrest.[FN12] The defendants' factual foundation is faulty, and, as a consequence, their argument is unpersuasive. Counts 6, 7 and 9 shall not be dismissed.

[FN12] Inter alia, Gouin also alleges in paragraph 82 of the complaint:

(d) Dori recklessly made categorical statements to Officer Toner accusing the plaintiff of violating a court order by his presence at his home on Temple Street and those statements resulted in Gouin’s arrest.
(e) Dori instigated or participated in the prosecution by pressing police to arrest and apply for a complaint for an improper purpose.

(f) Posey instigated or participated in the prosecution by pressing police to apply for a complaint for an improper purpose.

a. DiPiano’s nexus argument must fail.

DiPiano’s argued that where the defendant amateur youth basketball club in Perkins v. Londonderry Basketball Club, 196 F.3f 13, 18 (1st Cir. 1999), was not deemed a state actor, he, too, should not be deemed a state actor. That argument must fail, for there is no parallel between the club and DiPiano. That is, in addition to the club not "assum[ing] a traditional public function" and not performing a "function exclusively reserved to the State" [Id. at 18-19],\1/ the club did not insinuate itself with the State. In the context of the instant case, that is key. Here, DiPiano did insinuate himself directly with the State, by calling 911 and alleging that Gouin was violating a restraining order when there was neither an existing Massachusetts order nor a foreign order that had been filed in the manner required for full faith and credit. See Camilo-Robles, supra.

DiPiano also relies on Slotnick v. Garfinkle, 632 F.2d 163 (1980), as being supportive of his contention that he was not a state actor on 13 May 2002. In Slotnick, the private attorneys only participated in litigation. Id., at 166. It also appears that of the six private attorneys, three of them did not testify; they only appeared in court. Two of them represented their associate, Defendant Garfinkle. Garfinkle had petitioned the court to find Slotnick in contempt for violating an order prohibiting Slotnick from slandering Garfinkle. Without more, participation as a litigator does not constitute state action. Id. Slotnick also failed to plead any facts whatsoever supporting his claim that the defendants conspired to commit him to a state hospital.

Clearly, there is nothing in Slotnick which is remotely similar to DiPiano’s conduct in calling 911 and falsely reporting to the police that Gouin was violating a restraining order by not leaving his condo on Temple Street.

There are other examples, of course, in addition to those cited in Issue 1, supra, of courts deeming private parties to be state actors or parties acting under the color of law within the contemplation of §1983. Diverse courts use diverse tests to make that determination. Three of those tests are those cited by DiPiano and used by the court in Perkins. Another court, for example, found a private company to be a state actor when a state allowed an ex parte attachment pursuant to a state statute that was "being challenged as being procedurally defective under the Due Process Clause." Lugar v. Edmondson Oil Co., 457 U.S. 922, 923 (1982). There in Lugar, the court determined that there was "sufficient nexus between state and individual to demonstrate state action and permit a §1983 suit against the individual who sought the attachment." Still another court, Gonzales-Morales v. Hernandez-Arencibia, 221 F.3d 45, 49 (1st Cir. 2000), citing Lugar, 457 U.S. at 942, determined that "a private party's joint participation with state officials in the seizure of disputed property is sufficient to characterize that party as a ‘state actor’ for purposes of the Fourteenth Amendment."

And in Wagenmann v. Adams, 829 F.2d 196, 209 (1st Cir. 1987), the court wrote:
Inasmuch as [he] is and was a private citizen, liability under 42 U.S.C. §1983 requires a showing that he collogued with state actors -- persons acting under color of state law -- to deprive the plaintiff of his civil rights. See Dennis v. Sparks, 449 U.S. 24, 27-28 (1980) ... Accord Adickes v. S.H. Kress & Co., 398 U.S. 144, 152 (1970); United States v. Price, 383 U.S. 787, 794 (1966). As the district court told the jury in its charge, "[a] §1983 defendant need not be an officer of the state. It is enough if he is a willful participant in joint activity with the state or its agents."
Id., at 209 (emphasis supplied).
"[T]he mere institution by a private litigant of presumptively valid state judicial proceedings, without any prior or subsequent collusion or concerted action by that litigant with the state officials who then proceed with adjudicative, administrative, or executive enforcement of the proceedings, constitutes action under color of state law within contemplation of §1983."
Lugar, 457 U.S. at 927 (cite omitted) (emphasis supplied).

Although DiPiano failed to address the point, he was not a "mere complainant" in this scenario, but was involved to a more "significant and blameworthy degree."

Gouin contends both that DiPiano made implicit and/or explicit false statements to the police and that his proof is contained in the documents marked as Complaint Exhs. F-G, I-M, R.
DiPiano ingenuously disputes that he made implicit and/or explicit false statements despite the contrary shown to be true in those exhibits.

For instance, there is a dispute as to whether DiPiano stated the material facts to the 911 call-taker with any concealment and expected the police to make further investigation.\2/ But for the falsity of DiPiano’s statements, there was no need for the police presence at the condominium and for Detective James to bring charges against Gouin: (a) The divorce court had given Gouin the exclusiveuse and occupancy of the condo [Complaint Exh. B], (b) had ordered him to make it available for an appraisal inspection at that time [Complaint Exh. G], (c) Maine order had not been filed in Massachusetts neither in accordance with §5A of M.G.L. c. 209A nor out of accordance with that statute, and (d) even assuming the Maine order was to be given full faith and credit, given that Gouin was at the condo by court order, the Maine order would not supersede the Massachusetts order. Com. v. Gouin, Boston Municipal Court, No 0201-CR-003706 (Horgan, J.) (dismissed because wife was using the criminal charge to gain a collateral advantage in the divorce and because a Maine order, even if filed in accordance with §5A, could not supersede the Massachusetts order). See Complaint Exh. T].

The content of DiPiano’s 911 phone call to the police station plus Dori’s later phone contact with James – coupled with the Boston Police Department ["BPD"] wanting to retaliate against Gouin for the first §1983 case against BPD officers -- made James act with such deliberate indifference or in reckless disregard of the known, provable facts in front of her. The only other possible reason for James deliberate indifference or reckless disregard of the known, provable facts in front of her is that James received egregiously inadequate training to do her assigned work or that she was simply incompetent at her job.

DiPiano argues in his motion to dismiss that Gouin should have had someone else show the condo to the appraiser [see DiPiano’s mem., p. 3 n. 3], but in the motion DiPiano filed in the divorce court seeking the court to compel the appraisal of the Temple Street property [Complaint Exh. F], he did not request that a third party show the condo [Complaint Exh. F]. Consequently, when the court allowed his motion, the court made no mention of a third party, even in the event Dori showed up for the appraisal [Complaint Exh. G, p. 2. ¶B]:
Husband shall make the Boston property available to Wife’s real estate appraiser and Wife’s attorney at 10:00 AM on May 13, 2002, . . . Wife may be present for the inspection of the Boston property . . . \3/ \4/
DiPiano, therefore, knew that his statement to the police -- "We're here for, uh, a property inspection and my client, my client has a restraining order, uh, and the husband is here with a video camera. And we asked him to leave the premises but he won't leave the premises" -- was made maliciously and with evil intent with the purpose of insinuating himself with the police prosecution [Complaint Exh. J; see also Exh I]. Camilo-Robles v. Hoyos, 151 F.3d 1, 10 (1st Cir., 1998).

DiPiano acted with malice under color of law.

Whether "malice" is an element in a §1983 action for malicious prosecution remains unclear. Compare Pinshaw v. Metropolitan Dist. Com'n, 402 Mass. 687, 698 n. 15 (1988) ("preclusion as to the issue of ‘malice,’ an element of the common law tort, but not necessarily of §1983, is inappropriate in this litigation"), quoting Beecy v. Pucciarelli, 387 Mass. 589, 593-596 (1982), with Gutierrez v. Mass. Bay Transp. Authority, 437 Mass. 396, 409 n. 12 (2002), quoting Rankin v. Evans, 133 F.3d 1425, 1436 (11th Cir.), cert. denied, 525 U.S. 823 (1998) ("plaintiffs had the burden of demonstrating the absence of probable cause in order to succeed in their §1983 claim").\5/
When a defendant knowingly makes a false statement to the police or recklessly disregards whether the reported statement is false, actual malice may be inferred. Sheraton Boston Corp. v. Bozzotto, 1995 WL 1308161 at *5 (Mass.Super. 1995) (Smith, J.), citing Aarco, Inc. v. Baynes, 391 Mass. 560, 563. Lewis v. Continental Airlines, Inc., supra, citing Hayter v. City of Mount Vernon, 154 F.3d 269, 275 (5th Cir.1998) (malice may be inferred from lack of probable cause or from finding that defendant acted in reckless disregard of the other person's right).

In the instant case, DiPiano, knowing that there was no Massachusetts restraining order and that the Maine order had not been filed in any Massachusetts court, clearly knew that his statement to the 911 intake person was false.\6/ He further deliberately concealed or deliberately failed to disclose to the 911 intake person that he had exculpatory information: to wit, that there was no Massachusetts order, that the Maine one had not been filed in the Commonwealth, and that Gouin was at the condominium because he had been ordered by the court to be there. [Complaint Exhs. I and J].
Maliciously tendering false information, or deliberately concealing or deliberately failing to disclose exculpatory information, can give rise to an inference that the defendant acted with malice in initiating or maintaining a prosecution. See Martin v. Thomas, 973 F.2d 449, 457 (5th Cir.1992); Sanders v. English, 950 F.2d 1152, 1163 (5th Cir.1992); Wheeler v. Cosden Oil & Chem. Co., 734 F.2d 254, 260 (5th Cir.1984); Richey, 952 S.W.2d at 519.
Lewis v. Continental Airlines, Inc., 80 F.Supp. 686 (S.D. Tex. 1999). When a person gives the police information which he knows is false to cause a criminal prosecution, that person may be deemed to have procured the criminal prosecution. Id.\7/

In White v. Standard Oil Co., 474 N.E.2d 366, 367-368 (Ohio App. 1984) (treatise cites omitted), the Ohio Appeals Court wrote, "Where a private citizen merely summons an officer for assistance [ ] and does not specifically request that the person be arrested nor supply the false information to the police which causes the arrest, the citizen is not liable." This is what DiPiano suggests this court should find. But the court in White continued, "... the procurement of false charges is the equivalent in words or conduct to `Officer, arrest that man!’" And this is what Gouin suggests is the appropriate conclusion in the context of the facts of this case: that DiPiano’s 911 phonecall to the police was equivalent to pleading "Officer, arrest that man!" "A jury may infer malice from the circumstances, however, even if a defendant testifies or otherwise protests his good faith." Sheraton, at *5.

2. DiPiano (a) committed lies of omission and commission to the Boston Police Department and to this court, making dismissal of Gouin’s claims under §1983 and §1985(3) under his common-law claims inappropriate and (b) added spins, misrepresentations, and/or omissions in his memorandum.

a. DiPiano’s lies of omission and commission to the BPD
DiPiano did

not tell the 911 intake person that there was no Massachusetts restraining order

not tell the 911 intake person that the Maine restraining order had not been filed in the Commonwealth

not identify for the 911 intake person the source of the "restraining order" – i.e., that it was from Massachusetts or from Maine -- that was allegedly being violated by Gouin:

"CLR STS HIS CLIENT DORIE CHADBOURNE HAS R/O AGAINST FRANCOIS GOUIN (HUSBAND) WHO IS AT ABV AND IS REFUSING TO LEAVE" [Complaint Exh. I]
"We're here for, uh, a property inspection and my client, my client has a restraining order, uh, and the husband is here with a video camera.\8/ And we asked him to leave the premises but he won't leave the premises" [Complaint Exh. J]

not tell the 911 intake person that there was an order compelling Gouin to be at the Temple Street condo at that time and day [Complaint Exh. I, five lines up from the bottom]

not admit to making the 911 call or to speaking to the 911 operator

not admit to the BPD officer who called back at 10:19:48 to DiPiano’s cellphone – 617-504-4334 (in the middle of the page on the far right-hand side of Exh. I -- that it was he, DiPiano, who had placed the call to the 911 operator.

CLR KNOWS NOTHING AND IS NOT THE RP [Complaint Exh. I]

There could be no mistake it was DiPiano answered the incoming call to his cellphone, for he was still at Temple Street awaiting the police detail which arrived on the scene at Temple at 10:26:47 [Complaint Exh. I]
"Truth can be distorted as readily by omission as by commission." Griffiths v. CIGNA Corp., 988 F.2d 457, 473 (3rd Cir. 1993). "[O]ther state courts have recognized such an interpretation of Section 653 [of the Restatement]. . . .

DiPiano’s spins, misrepresentations, and/or omissions in his memorandum.

DiPiano’s spins and/or misrepresentations in his memorandum include
but are not limited to the following:

1. Gouin attributes DiPiano’s diatribe on pages 2 and 3 to his anxiety in waiting for the decision after a divorce trial of 59 days (between 6/10/02 and 5/9/03), with hard-fought child-custody and property battles. Generally custody decisions in favor of the mother issue rapidly. That the parties are still awaiting a decision almost three months after all posttrial pleadings were filed is apparently taking its toll on DiPiano as well as on both Gouin and his counsel. Gouin does not know whether waiting is impacting his spouse.

2. DiPiano alleged that Gouin intentionally omitted including in his Complaint the fact that he brought an attempted fraud case. Believing that the "appraisal" case was not related to the instant case, Gouin, of course, did not include it as one of the facts. See Table 1 (p. 3) for descriptions and details of the "appraisal" case to which DiPiano refers. [DiPiano’s comment re trial, pp. 2 and 3 and the continuation of note 1 on p. 2 of his memorandum.]

3. DiPiano refers to other cases brought by Gouin. See Table 1 in this opposition for descriptions and details of the other case to which DiPiano refers. [DiPiano’s comment re trial, p. 3 and Exh. 1 of his memorandum.]

4. DiPiano wrote, "The case at bar turn on events surrounding an appraisal of marital real estate. . . ." This is a spin. The case at bar turns on DiPiano and Dori’s intent to get Gouin arrested again so that Dori could gain a collateral advantage in the divorce, the trial of which was scheduled to begin but a few weeks later. In fact, one of the reasons BMC Judge Horgan dismissed the criminal charge of violating a restraining order was Dori’s intention of gaining a collateral advantage in the divorce. See Table 1. [DiPiano’s comment re this issue on p. 3 of his memorandum.]

5. DiPiano left out the words "Husband shall" in his iteration of what the probate and family court judge wrote in the order that was operative on 13 May 2002. DiPiano wrote, "Gouin seems to base his entire case on a probate and family court order that stated that he was responsible to ‘make the premises available for inspection." [DiPiano’s comment on p. 3 of his memorandum.] The order, however, reads, "Husband shall make the Boston property available to Wife’s real estate appraiser and Wife’s attorney at 10:00 AM on May 13, 2002, . . . Wife may be present for the inspection of the Boston property . . . " See issue 2, supra.

6. An outright prevarication by DiPiano appears note 3 on p. 3 of his memo. DiPiano wrote "there was no order that he personally make the premises available." See issue 2, supra.

7. Also in note 3, DiPiano also wrote "He could have, and should have, done so through an agent," meaning Gouin should have had an agent there. The order does not require that Gouin spend money for an agent. The order reads, "Husband shall make…." Gouin also had no obligation to do as DiPiano suggests in note 3, to wit, to leave his home and let strangers and DiPiano and Dori – neither of whom Gouin has reason to trust -- into it so they could roam around and snoop.

8. On p. 4, DiPiano wrote, "Much has gone wrong for Gouin…." Agreed. While Gouin was represented by prior counsel, the judge assigned to the case contravened mandatory statutes. This was one reason Gouin sued the judge, Nancy M. Gould, and her superiors. See Table 1.
At the divorce trial, Gouin introduced documentary evidence that an Assistant First Register, Jack Scully, phoned Dori’s predecessor counsel, now Judge E. Chouteau Merrill, and said that there would be an evidentiary child-removal hearing, but the parties were not allowed to attend. That trial exhibit was not attached to the Complaint in this case because it is totally irrelevant to this case. It is only because of DiPiano’s ad hominem remark regarding Gouin’s other cases that Gouin mentions the document here. Gouin believes it is reasonable to conclude that the Register did not take that action on his own and that Judge Gould instructed him to make the call to then-just-plain-lawyer Merrill. That fact was not known by 29 September 2001, when Gouin filed the Complaint against the judges. It was not learned until the Spring of 2002. By that time, Judge Tauro had already dismissed the "judge case."

After successor counsel made her appearance, Dori, Merrill, and another woman misrepresented that Gouin had coached one of the Gouin twin sons to say -- during a taping session -- that his maternal grandfather had xxxxxxxx him. That none was present at the taping was ignored by the courts. The accusation was totally untrue. During the last three days of trial, Days 55-59, the parties learned from school records that the other twin was suffering from aaaaaaaaaaaa, often a symptom of xxxxxxxx. This appears not to be the first time Dori’s father was accused of pedophilia. He himself admitted on the stand on 2 April 2001 that he had a strained relationship with one of Dori’s sisters because – he believed – she suffered from the "false memory syndrome." Gouin also got into evidence that Dori’s brother-in-law told Gouin that Dori’s father had sexually molested the sister when she was a youngster.

Yes, there certainly was reason for Gouin to sue. Much went wrong not only for Gouin but for the Gouin twin boys. Although warned by Gouin, the guardian ad litem recommended and the court allowed the children to be removed to Dori’s father’s home without Gouin’s consent, without an investigation of the Maine environment to which the children were to be removed, and without an evidentiary hearing. The harm done the children is irremediable and the court has done nothing about returning them to Gouin’s care in Massachusetts.

It is the above-cited evidence that added fuel to Dori’s desire to have Gouin imprisoned. Gouin had been the primary caretaker of the children for the first five years of their life, and considerable evidence of his excellent care of the children was entered into the record of the trial. Given the regression of the children and mounting evidence that is consistent with sexual molestation, Dori, a Harvard-educated lawyer, fears she will lose custody to Gouin and have to pay him child support and alimony from her considerable income.

9. On pp. 5, 8 (in note 9), 10, and 16, DiPiano alleges that Gouin’s counsel wrote "bald assertions, periphrastic circumlocutions, unsubstantiated conclusion, outright vituperation," but nowhere does he identify the phrases or sentences in which such occur.
On p. 15, DiPiano adds "swamp of allegations" to the list, but again does not identify which paragraphs of Gouin’s precise Complaint fall or fell into the swamp!

On p. 15, DiPiano alleges that Gouin "attribute[s] certain statements to DiPiano specifically designed as ad hominum [sic], scandalous, and baseless attacks that are intended to mislead this court," but nowhere does DiPiano identify the phrases or sentences in which such occur.

On p. 17, DiPiano adds "frivolous, fraudulent, and false nature of the complaint itself," but nowhere does he identify the phrases or sentences in which such occur.

On p. 20, DiPiano further adds, "traffic-jammed-allegation-superhighway," but nowhere does he identify the phrases or sentences in which such traffic jam occurs.

On p. 18, DiPiano adds, "The nature of the circumlocutions," but nowhere does he identify the phrases or sentences in which such occur.

10. In note 9 on p. 8, DiPiano asserts that Gouin was "stonewalling" the appraisal of the condo, but produces no evidence of that. Objecting for valid reasons is not "stonewalling."

11. At the bottom of note 9 of p. 8, DiPiano opines that Gouin’s counsel should be embarrassed to say that she did not anticipate Dori’s presence at the condo on 13 May 2002. Gouin’s counsel relies on notice – either informally by FAX, phone, or email or formally by first-class mail – but notice. Speculation is unreliable. It is notice that she did not receive in any form from DiPiano.

12. A comparison of notes 8 and 9 on p. 8 of DiPiano’s memorandum is illustrative of his talent for spinning a straightforward order [Complaint Exh. G]. In note 8, he maintains that Gouin should not have been at the condo despite the language "Husband shall make available." In fact, DiPiano avoids using that language in his memorandum. His spin is on what the order did not say, rather than on what the order did say.
"does not specifically require Gouin himself to be present to comply with the order"
"does not require his continued presence during the appraisal"

"does not specifically state that it anticipates that it shall supersede a valid restraining order from a sister state entitled to full faith and credit within the Commonwealth of Massachusetts."\9/

And in note 9, DiPiano asserts that Dori did not have to give to Gouin or his counsel notice that she chose to be present at the appraisal because the order:

does not include an instruction to give notice. In other words, in note 8, he does not want the order to be interpreted literally, but in note 9, he wants to interpret it literally.
Gouin believes reading notes 8 and 9 together circumstantially make it reasonable to conclude that DiPiano and perhaps Dori saw an opportunity to trap the unsuspecting and innocent Gouin, who believed only that he was following the order, into a scenario that could conceivably enable them to get Gouin convicted – the chapter 209A law being a criminal statute not requiring mens rea -- and perhaps even jailed, guaranteeing an award of custody of the children to Dori (and perhaps also the real property).

13. The Maine order, marked as Complaint Exh. E, speaks for itself. The point is that the Maine order was not filed in any court in Massachusetts on 13 May 2002. More troubling to Gouin’s counsel is that the statute providing for full faith and credit does not include a provision for giving notice to the person against whom the restraining order has issued. There are, in other words, no safeguards to prevent abuse. The constitutionality of that section of the statute -- §5A or M.G.L. c. 209A – has not yet been tested.

14. On p. 12, DiPiano contended that "Gouin faced charges related to his admitted actions, while in Andickes [sic], the charges were wholly unrelated to Plaintiff’s actions." First, Adickes was not a plaintiff in the vagrancy case brought against her. She was a defendant, as was Gouin in Commonwealth v. Gouin. Second, Gouin admitted nothing except that he was at his condo as ordered by the court.

In both cases, Gouin and Adickes were victims of false charges. Adickes was not a vagrant and Gouin was also not where he should not have been. Adickes was lawfully where she was when arrested. Gouin was lawfully where he was when DiPiano maliciously phoned the police at the behest and encouragement of Dori, who was by his side at the time DiPiano made the call from his cellphone. And in both cases, there was a private conspiracy. Gouin was a member of the class of men, being discriminated against by the probate and family court and law-enforcement authority. The statistics on enforcement of c. 209A will bear this out.

15. On p. 13, DiPiano wrote, "Gouin’s charge arose from his having contact with Chadbourne, which contact Gouin admitteds [sic] was proscribed by court order, as contained in . . . [Complaint] Exh E." That is a misleading spin on the facts. The charge arose because DiPiano and/or Dori never gave notice to Gouin’s counsel or Gouin that she had decided to attend the appraisal of the condo on May 13th. Gouin was at his home. Dori came from Maine to the Boston condo unannounced. That is how the so-called "contact" arose. The video Gouin took with a videocamera of the event show that Dori walked up to DiPiano and pulled out the Maine order and gave it to him, whereupon without hesitation, DiPiano threatened Gouin to leave or he would call police. When Gouin suggested they just get on with the appraisal, DiPiano entered 911 into the keypad of his cellphone.

16. On p. 14, DiPiano contends that Gouin only pled that he had a "right to file the prior pending lawsuit." Gouin also pled that he has a liberty right to remain free of false criminal charges. See Issue 5.

17. DiPiano outright lies on pp. 16 and 17. He denies telling Nissenbaum that the appraisal of the condo did not go forward on May 13th, but see Complaint Exhs. M and N, both of which show that DiPiano did, indeed, lie to Nissenbaum on May 13th and then on 3 June 2002, lied to the court [seeComplaint Exh. R].

Then on p. 17, DiPiano misleads by misrepresenting that Attorney Nissenbaum’s testimony supported DiPiano’s rendition of the event on May 13.

19. In note 12 on p. 18, DiPiano lies outright once again: He wrote that after he said at the deposition that the appraisal did not go forward, Gouin’s counsel interrupted, but the transcript marked Complaint Exh. M clearly proves that DiPiano finished his statement that the appraisal did not go forward and that immediately Nissenbaum – not Johnson – asks DiPiano, "Why not?" [lines 19 and 20 of Complaint Exh. M]. A close reading of footnote 12 in entirety reveals that DiPiano is grasping for straws to cover up his lie. Outrageously, he says that "Johnson manufactured the issue." In fact, Gouin and Johnson attached to the Complaint documentary proof of who said what and who did what.

20. The audacity of DiPiano comes out in full bloom in note 13 on pp. 19-20. There he opines about what a world it would be were he to have a client with a valid order and he was unable to summons the police on Dori’s behalf "for fear of reprisal via a federal lawsuit." Now that is an ad hominem remark, one designed to appeal to the court’s feelings and prejudice rather than to its intellect. Webster’s Seventh New Collegiate Dictionary.

21. DiPiano failed to address his conduct that is akin to witness tampering. SeeComplaint Exh. K. The first page of Exh. K (page 5420) reflects Appraiser Goulet’s morning testimony:
A. "I’m not sure [DiPiano] wanted to come in [to the condo with the appraiser].
After lunch, cross-examination continued. Goulet had gone to lunch with DiPiano and they discussed his testimony (5564:1–5565:5). When trying to give a nonresponsive answer to a question about Gouin (5563:17-19), Goulet changed his testimony about DiPiano by inserting the word intent, causing a slight change in meaning and emphasis:

A. "I’m not sure what Mr. DiPiano’s intent was at that point. I don’t know. (5563:20-21)
Q. … Isn’t it true that you said earlier that it appeared that he did not want to enter? (5564:2-3)

A. I never said that. (5564:4)

Q. Here today? (5564:5)

A. I never said that. (5564:6)

In the morning (Exh. K, page 5421), Goulet testified that Dori did not appear to want to go inside (lines 3-8). In the afternoon, Goulet’s testimony became "I don’t remember knowing whether she had any interest in going in or not" (5565:lines19-23).

22. DiPiano failed to file the Maine order in accordance with section 5A of M.G.L. c. 209A, failed to address his failure or Dori’s failure to file it prior to 13 May 2002. In fact Dori did not file the Maine order in accordance with 209A:5A until 30 April 2003.

"[S]ome cases have stated that a private person may face liability if he ... did not disclose material information, ... [T]hose cases concerned persons who either knowingly provided false information ... or actually initiated the prosecution." Id. at 466. Byers v. Ward, 36 Pa. 416, 84 A.2d 307, 309 (Pa. 1951) (defendants accused of providing false testimony and documentary evidence). "[W]hen false or incomplete statements are made to a police officer, with an improper motive, one may be liable for malicious prosecution although he does not actually initiate the prosecution." Kauffman v. A.H. Robins Co., Inc., 223 Tenn. 515, 522-523, 448 S.W.2d 400, 403 (1969), citing Cohen v. Ferguson 47 Tenn. App. 165, 336 S.W.2d 949 (1959).
It is DiPiano’s ethical obligation as an attorney not to place false testimony before the court. Com. v. Mitchell, 438 Mass. 535, 449 (2003).

State action is not necessary for a claim of conspiracy under §1985(3).

DiPiano concentrated on contesting that he could not be deemed a state actor for a conspiracy count, but state action is not necessary for a claim of conspiracy under §1985(3). That section allows private conspiracies, i.e. conspiracies by private people who are not state actors.
In any event, whether a private or public conspiracy, "[t]he existence or nonexistence of a conspiracy is essentially a factual issue that the jury, not the trial judge, should decide." Adickes v. Kress & Co., 398 U.S. 144, 176 (1970) (Black, J. concurring in the judgment).

It is reasonable to conclude, however, that when DiPiano, with Dori’s encouragement, cell-phoned the BPD [Complaint Exhs. I and J], they hoped the police would arrive in time to arrest Gouin. At that point, they were participating actively in an activity that would have resulted in both the unlawful arrest and presumptively valid judicial proceeding. Although no preconceived plan or scheme was necessary, it is reasonable to conclude that they had one. That DiPiano failed to give Gouin’s counsel notice that Dori would appear at the condo was part of the plan to create a situation where it would appear Gouin was violating a restraining order. Circumstantial evidence of the scheme is found in DiPiano’s persistent interpretation of the subject order [Comp. Exh. G] in such a way so as to avoid the words "Husband shall" and make it appear that Gouin was at fault because he did not have some agent at the Boston property at the scheduled time of the appraisal.

Although DiPiano and Dori had had no prior contact with the police officers or those who then proceeded with the adjudicative proceedings, they were colluding with Detective James after 13 May 2002 [Complaint Exhs. O, P, and Q], making not only DiPiano but also Dori state actors or acting under the color of law as contemplated by §1983. Cf. Lugar, 457 U.S. at 926.

Moreover, a private party involved in such a conspiracy, even though not an official of the State, can be liable under §1983. "Private persons, jointly engaged with state officials in the prohibited action, are acting ‘under color’ of law for purposes of the statute. To act ‘under color’ of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents."
Adickes v. Kress & Co., 398 U.S. 144, 152 (1970), quoting United States v. Price, 383 U.S. 787, 794 (1966).

Gouin was deprived of his liberty interest to be free from being falsely accused of a criminal prosecution, to be free from having to answer charges of a baseless criminal prosecution, to be free of retaliation for exercising his right to petition.

DiPiano also contended that Gouin could not maintain a §1983 or §1985(3) action because he had not pled that he was deprived of a right secured by the Constitution and the laws of the United States. DiPiano’s reasoning is specious. Gouin was deprived of his absolute liberty interest to be free from baseless criminal prosecution. See Morrissey v. Brewer, 408 U.S. 471, 480 (1972). "[A]n otherwise private person acts ‘under color of’ state law when engaged in a conspiracy with state officials to deprive another of federal rights." Tower v. Glover, 467 U.S. (Or.) 914, 920 (1984), quoting Dennis v. Sparks, 449 U.S. 24, 27-28 (1980).

First, if in order to discourage conduct protected by the First Amendment or by some other provision of the Constitution, (FN10) a State brings or threatens to bring a criminal prosecution in bad faith for the purpose of harassment, the bringing of the prosecution or the threat is itself a constitutional deprivation since it subjects a person to a burden of criminal defense which he should not have to bear, and there then exists a situation 'in which defense of the State's criminal prosecution will not assure adequate vindication of constitutional rights.' (FN11)
Perez v. Ledesma, 401 U.S. (La.) 82, 117-118 (1971) (internal citations omitted).
That deprivation began almost immediately. Detective James was allegedly investigating the case from the outset, when she and Dori had contact. The arraignment date was originally scheduled for July 2002 and eventually occurred in September 2002. The instant civil case was filed on 29 September 2003, a year later, after the criminal charge initiated by DiPiano’s and Dori’s actions was dismissed by Judge Horgan in Boston Municipal Court [Complaint Exh. T]. So having been deprived of his right to be free from false, baseless criminal prosecution, Gouin was in jeopardy of losing his freedom and in a state of constant anxiety for almost a year and a half.

Where DiPiano did not contend that Gouin failed to plead the essential elements of (a) malicious prosecution [Count 4], (b) malicious abuse of process [Count 5], (c) common-law conspiracy [Count 6], and (d) intentional infliction of emotional distress [Count 7], dismissal of Gouin's Counts 4 through 7 is inappropriate.

DiPiano did not contend that the essential elements of the Counts 4 through 7 were not pled in the Complaint. Neither did he assert any legal defense that would support dismissal. It is reasonable to conclude, therefore, that the causes of action were properly pled, making dismissal inappropriate.
WHEREFORE, Plaintiff prays the Motion to Dismiss by John DiPiano motion be denied.

E N D N O T E S

FN1        In the instant case, Defendant Detective James performed a traditional public function exclusively reserved to the State: to wit, law enforcement.

FN2    If there were no concealment and no expectation, then DiPiano would not be liable for malicious prosecution. Burnham v. Collateral Loan Co., 179 Mass. 268, 273-274 (1901). If there was concealment of the true facts, then DiPiano is liable. Id.   Where the issue is in dispute, it raises in his claim for malicious prosecution, therefore, a question for the jury. Griffin v. Dearborn, 210 Mass. 308, 312-313 (1911).
FN3 In his supporting memorandum, DiPiano neither admitted nor denied his failure to give Gouin or his counsel notice that Dori had chosen to attend the appraisal. Instead, he wrote that Gouin’s counsel “should be embarrassed to [ ] admit” that she “did not anticipate Wife’s presence at the appraisal in light of the Exhibit G of the Complaint” [DiPiano, memo at 8 n.8].

FN4   On lines 3-5 of footnote 3 on page 3 of his memorandum, DiPiano falsely states that “there was no order that [Gouin] make the premises available; he could have, and should have, done so through an agent, and all about which the court is now forced to concern itself with would have been avoided.” One can only wonder what DiPiano thinks “Husband shall make the property available” means . . . given that on page 1 of the order, it is clearly stated that “Husband” is an alternate term of reference for “Gouin.”
FN5 When seeking punitive damages under §1983, a plaintiff needs only show that the “defendant's conduct is motivated by evil motive or intent, or involves reckless or callous indifference to the federally protected rights of others.” Kolstad v. American Dental Association, 119 S.Ct. 2118 (1999), 1999.SCT.42133 ¶49 <http://www.versuslaw.com>, quoting Smith v. Wade, 461 U.S. 30, 56 (1983). While “the Smith Court determined that it was unnecessary to show actual malice to qualify for a punitive award, id., at 45-48, its intent standard, at a minimum, required recklessness in its subjective form.”

FN6   In an action for malicious prosecution, probable cause becomes a question of law for the court only when the facts bearing upon it are undisputed. Griffin, 210 Mass. at 312-313, citing Casavan v. Sage, 201 Mass. 547, 553 (1909).   When the facts are in dispute, the question of probable cause is for the jury. Griffin, at 312-313. Here, the facts are NOT in dispute. DiPiano has NOT denied any of the facts Gouin has set out. DiPiano claims only that he is not a state actor.

FN7   A private individual who knowingly provides false information to the police is responsible for the institution of the proceedings, and thus can be held liable for malicious prosecution as he did not have a reasonable basis for making the accusation. Restatement (Second) of Torts, § 653, comment g (1977).

One of the ways a plaintiff may be held to have initiated such proceedings is to show "that the information furnished by him upon which the official acted was known to be false." Restatement (Second) of Torts § 653 cmt. g (1977). This limitation on the general non-liability rule flows from the reasonable premise that a public official who is provided false information is unable intelligently to exercise his or her discretion to decide whether to prosecute. It follows, ... that if it can reasonably be found that material information is deliberately withheld by a private individual when he or she provides information about possible criminal activity of an identified individual, such action amounts to knowingly supplying false information. In such a case that individual is responsible for having initiated the proceedings and thus fulfills that required element of a malicious prosecution action.
Griffiths v. CIGNA Corp., 988 F.2d 457, 473 (3rd Cir. 1993).
FN8   In the criminal case out of which the instant case arose, the assistant district attorney wrote in his bill of particulars that Gouin violated a Maine restraining order that prohibits Gouin from (a) molesting, (b) attacking, (c) harassing, or (d) otherwise abusing his wife, but did not say how .

FN9   The emphasis of underlined italics are supplied.

                                                Respectfully submitted,
                                                FRANÇOIS GOUIN, Jr.
                                                By his attorney,

                                                ___________________________________
3 November 2003                   Barbara C. Johnson
                                                6 Appletree Lane
                                                Andover, MA 01810-4102
                                                978-474-0833

AFFIDAVIT

I, Barbara C. Johnson, Esq., hereby depose that all statements and observations I attribute to myself saying or observing are true, and all other statements are true upon information and belief.

Sworn under the pains and penalties of perjury.

                                                ___________________________________
3 November 2003                   Barbara C. Johnson

CERTIFICATE OF SERVICE

I hereby certify that a true copy of the above document was served upon each party appearing pro se and the attorney of record for each other party by mail/in hand on 3 November 2003.

                                                ___________________________________
3 November 2003                   Barbara C. Johnson

Table 1. Collateral Cases Cited by DiPiano in His Memorandum and in Exh. 1 to That Document
Case Name	Docket Number	Court	Causes of Action	Disposition	Basis of Disposition
François Gouin, Jr. v. Dori Faith Chadbourne Gouin, Todd Posey, William Toner, Edward McMahon, City of Boston, Police Comm’r, arising out of alleged false arrest of Gouin at the family condo on January 5th, 2001 "COMPANION" CASE	01-CV-10890-RBC	U.S. District Court of Mass., Eastern District	See below	Active	N/A
	The causes of action brought were (1) violation of 42 U.S.C. §1983: arrest, (2) violation of 42 U.S.C. §1983: detention and confinement, (3) violation of 42 U.S.C. §1983: strip search, (4) violation of 42 U.S.C. §1983: conspiracy, (5) violation of 42 U.S.C. §1983: refusing or neglecting to prevent, (6) malicious prosecution, (7) malicious abuse of process, (8) violation of Mass. Civil Rights Act (M.G.L. c. 12, §11I), (9) false arrest and imprisonment, (10) assault, (11) battery, (12) conspiracy, (13) intentional infliction of emotional distress
François Gouin, Jr. v. The Honorable Nancy M. Gould, in her judicial and individual capacities, The Honorable Sean Dunphy, in his judicial and individual capacities, the Honorable John J. Irwin, Jr., in his individual and former judicial (CJAM) capacities, et al THE "JUDGE" CASE	01-CV-11702-GAO	U.S. District Court of Mass., Eastern District	See below	Dismissed	Judicial immunity
	The causes of action brought were (1) declaratory judgment re the constitutionality of M.G.L. c. 215, §56A, (2) violation of 42 U.S.C. §1983 (due process and equal protection clauses), (3) violation of 42 U.S.C. §1985(3) (conspiracy), (4) violation of 42 U.S.C. §1983 (deprivation of parental rights by violation M.G.L. c. 208, §30), (5) violation of 42 U.S.C.§1983 (deprivation of parental rights by violation of MCCJA), (6) violation of 42 U.S.C. §1986 (refusing or neglecting to train and to protect and prevent the wrongs conspired to be done), (7) civil RICO, (8) common law conspiracy, (9) violation of G.L. c. 215, §56A, (10) violation of G.L. c. 208, §30 (the removal statue), (11) violation of G.L. c. 209B, §5(a), (12) account annexed (sum-certain debt of Commonwealth to Gouin), (13) intentional infliction of emotional distress, and (14) reserved for negligence claim. After Judge Gould refused to hear Gouin’s aging motion to recuse, Gouin sued. Within a week of the justices being served, Judge Gould was removed from the case. For a summary of the primary reason for the motion to recuse, see ¶8 on p. 14, infra.

François Gouin, Jr. v. The Honorable Nancy M. Gould, in her judicial and individual capacities, The Honorable Sean Dunphy, in his judicial and individual capacities, The Honorable John J. Irwin, Jr., in his individual and for- mer judicial (CJAM) capa- cities, et al APPEAL OF THE "JUDGE" CASE	02-1144	First Circuit Court of Appeals	Appeal of dismis-sal on grounds of judicial immunity and the Eleventh Amendment	Pending	N/A
François Gouin, Jr. v. Dori Faith Chadbourne Gouin a/k/a Dori Faith hadbourne; E. Chouteau Merrill; Ray- mond Sayeg, Jr.; John G. DiPiano; Gerald L. Nissen- baum (all except Dori Gouin in their professional and individual capacities) "APPRAISAL" CASE	02-CV-10873-JLT	U.S. District Court of Mass., Eastern District	Section 1983 action, attempted fraud of between $156,000 and $312,000 (by secreting evidence), and emotional distress	Dismissed	No state action for federal claim. Pending state claims may be brought in Mass.
François Gouin, Jr. v The Honorable Lisa A. Roberts, Dori Faith Chadbourne Gouin, a/k/a Dori Faith Chadbourne, E. Chouteau Merrill, Brown Rudnick Berlack Israels, LLP , Gerald L. Nissenbaum, Probate & Family Court Dept. of the Trial Court of the Com. of Mass., Com. of Mass., (all in his or her profes- sional and individual capacities) "ESCROW" CASE	02-CV-11039-JLT	U.S. District Court of Mass., Eastern District	Section 1983 causes of action, fraud (unlawful removal of $30,000+ funds from escrow account), §1985(3) (conspiracy), common- law conspiracy, and emotional distress.	Dismissed	Judicial immunity. No state action for federal claim. Pending state claims may be brought in Mass.

1.	Gouin attributes DiPiano’s diatribe on pages 2 and 3 to his anxiety in waiting for the decision after a divorce trial of 59 days (between 6/10/02 and 5/9/03), with hard-fought child-custody and property battles. Generally custody decisions in favor of the mother issue rapidly. That the parties are still awaiting a decision almost three months after all posttrial pleadings were filed is apparently taking its toll on DiPiano as well as on both Gouin and his counsel. Gouin does not know whether waiting is impacting his spouse.

2.	DiPiano alleged that Gouin intentionally omitted including in his Complaint the fact that he brought an attempted fraud case. Believing that the "appraisal" case was not related to the instant case, Gouin, of course, did not include it as one of the facts. See Table 1 (p. 3) for descriptions and details of the "appraisal" case to which DiPiano refers. [DiPiano’s comment re trial, pp. 2 and 3 and the continuation of note 1 on p. 2 of his memorandum.]

3.	DiPiano refers to other cases brought by Gouin. See Table 1 in this opposition for descriptions and details of the other case to which DiPiano refers. [DiPiano’s comment re trial, p. 3 and Exh. 1 of his memorandum.]

4.	DiPiano wrote, "The case at bar turn on events surrounding an appraisal of marital real estate. . . ." This is a spin. The case at bar turns on DiPiano and Dori’s intent to get Gouin arrested again so that Dori could gain a collateral advantage in the divorce, the trial of which was scheduled to begin but a few weeks later. In fact, one of the reasons BMC Judge Horgan dismissed the criminal charge of violating a restraining order was Dori’s intention of gaining a collateral advantage in the divorce. See Table 1. [DiPiano’s comment re this issue on p. 3 of his memorandum.]

5.	DiPiano left out the words "Husband shall" in his iteration of what the probate and family court judge wrote in the order that was operative on 13 May 2002. DiPiano wrote, "Gouin seems to base his entire case on a probate and family court order that stated that he was responsible to ‘make the premises available for inspection." [DiPiano’s comment on p. 3 of his memorandum.] The order, however, reads, "Husband shall make the Boston property available to Wife’s real estate appraiser and Wife’s attorney at 10:00 AM on May 13, 2002, . . . Wife may be present for the inspection of the Boston property . . . " See issue 2, supra.

6.	An outright prevarication by DiPiano appears note 3 on p. 3 of his memo. DiPiano wrote "there was no order that he personally make the premises available." See issue 2, supra.

7.	Also in note 3, DiPiano also wrote "He could have, and should have, done so through an agent," meaning Gouin should have had an agent there. The order does not require that Gouin spend money for an agent. The order reads, "Husband shall make…." Gouin also had no obligation to do as DiPiano suggests in note 3, to wit, to leave his home and let strangers and DiPiano and Dori – neither of whom Gouin has reason to trust -- into it so they could roam around and snoop.

8.	On p. 4, DiPiano wrote, "Much has gone wrong for Gouin…." Agreed. While Gouin was represented by prior counsel, the judge assigned to the case contravened mandatory statutes. This was one reason Gouin sued the judge, Nancy M. Gould, and her superiors. See Table 1. At the divorce trial, Gouin introduced documentary evidence that an Assistant First Register, Jack Scully, phoned Dori’s predecessor counsel, now Judge E. Chouteau Merrill, and said that there would be an evidentiary child-removal hearing, but the parties were not allowed to attend. That trial exhibit was not attached to the Complaint in this case because it is totally irrelevant to this case. It is only because of DiPiano’s ad hominem remark regarding Gouin’s other cases that Gouin mentions the document here. Gouin believes it is reasonable to conclude that the Register did not take that action on his own and that Judge Gould instructed him to make the call to then-just-plain-lawyer Merrill. That fact was not known by 29 September 2001, when Gouin filed the Complaint against the judges. It was not learned until the Spring of 2002. By that time, Judge Tauro had already dismissed the "judge case." After successor counsel made her appearance, Dori, Merrill, and another woman misrepresented that Gouin had coached one of the Gouin twin sons to say -- during a taping session -- that his maternal grandfather had xxxxxxxx him. That none was present at the taping was ignored by the courts. The accusation was totally untrue. During the last three days of trial, Days 55-59, the parties learned from school records that the other twin was suffering from aaaaaaaaaaaa, often a symptom of xxxxxxxx. This appears not to be the first time Dori’s father was accused of pedophilia. He himself admitted on the stand on 2 April 2001 that he had a strained relationship with one of Dori’s sisters because – he believed – she suffered from the "false memory syndrome." Gouin also got into evidence that Dori’s brother-in-law told Gouin that Dori’s father had sexually molested the sister when she was a youngster. Yes, there certainly was reason for Gouin to sue. Much went wrong not only for Gouin but for the Gouin twin boys. Although warned by Gouin, the guardian ad litem recommended and the court allowed the children to be removed to Dori’s father’s home without Gouin’s consent, without an investigation of the Maine environment to which the children were to be removed, and without an evidentiary hearing. The harm done the children is irremediable and the court has done nothing about returning them to Gouin’s care in Massachusetts. It is the above-cited evidence that added fuel to Dori’s desire to have Gouin imprisoned. Gouin had been the primary caretaker of the children for the first five years of their life, and considerable evidence of his excellent care of the children was entered into the record of the trial. Given the regression of the children and mounting evidence that is consistent with sexual molestation, Dori, a Harvard-educated lawyer, fears she will lose custody to Gouin and have to pay him child support and alimony from her considerable income.

9.	On pp. 5, 8 (in note 9), 10, and 16, DiPiano alleges that Gouin’s counsel wrote "bald assertions, periphrastic circumlocutions, unsubstantiated conclusion, outright vituperation," but nowhere does he identify the phrases or sentences in which such occur. On p. 15, DiPiano adds "swamp of allegations" to the list, but again does not identify which paragraphs of Gouin’s precise Complaint fall or fell into the swamp! On p. 15, DiPiano alleges that Gouin "attribute[s] certain statements to DiPiano specifically designed as ad hominum [sic], scandalous, and baseless attacks that are intended to mislead this court," but nowhere does DiPiano identify the phrases or sentences in which such occur. On p. 17, DiPiano adds "frivolous, fraudulent, and false nature of the complaint itself," but nowhere does he identify the phrases or sentences in which such occur. On p. 20, DiPiano further adds, "traffic-jammed-allegation-superhighway," but nowhere does he identify the phrases or sentences in which such traffic jam occurs. On p. 18, DiPiano adds, "The nature of the circumlocutions," but nowhere does he identify the phrases or sentences in which such occur.

10.	In note 9 on p. 8, DiPiano asserts that Gouin was "stonewalling" the appraisal of the condo, but produces no evidence of that. Objecting for valid reasons is not "stonewalling."

11.	At the bottom of note 9 of p. 8, DiPiano opines that Gouin’s counsel should be embarrassed to say that she did not anticipate Dori’s presence at the condo on 13 May 2002. Gouin’s counsel relies on notice – either informally by FAX, phone, or email or formally by first-class mail – but notice. Speculation is unreliable. It is notice that she did not receive in any form from DiPiano.

12.	A comparison of notes 8 and 9 on p. 8 of DiPiano’s memorandum is illustrative of his talent for spinning a straightforward order [Complaint Exh. G]. In note 8, he maintains that Gouin should not have been at the condo despite the language "Husband shall make available." In fact, DiPiano avoids using that language in his memorandum. His spin is on what the order did not say, rather than on what the order did say. *"does not* specifically require Gouin himself to be present to comply with the order" "does not require his continued presence during the appraisal" "does not specifically state that it anticipates that it shall supersede a valid restraining order from a sister state entitled to full faith and credit within the Commonwealth of Massachusetts."\9/ And in note 9, DiPiano asserts that Dori did not have to give to Gouin or his counsel notice that she chose to be present at the appraisal because the order: does not** include an instruction to give notice. In other words, in note 8, he does not want the order to be interpreted literally, but in note 9, he wants to interpret it literally. Gouin believes reading notes 8 and 9 together circumstantially make it reasonable to conclude that DiPiano and perhaps Dori saw an opportunity to trap the unsuspecting and innocent Gouin, who believed only that he was following the order, into a scenario that could conceivably enable them to get Gouin convicted – the chapter 209A law being a criminal statute not requiring mens rea -- and perhaps even jailed, guaranteeing an award of custody of the children to Dori (and perhaps also the real property).

13.	The Maine order, marked as Complaint Exh. E, speaks for itself. The point is that the Maine order was not filed in any court in Massachusetts on 13 May 2002. More troubling to Gouin’s counsel is that the statute providing for full faith and credit does not include a provision for giving notice to the person against whom the restraining order has issued. There are, in other words, no safeguards to prevent abuse. The constitutionality of that section of the statute -- §5A or M.G.L. c. 209A – has not yet been tested.

14.	On p. 12, DiPiano contended that "Gouin faced charges related to his admitted actions, while in Andickes [sic], the charges were wholly unrelated to Plaintiff’s actions." First, Adickes was not a plaintiff in the vagrancy case brought against her. She was a defendant, as was Gouin in Commonwealth v. Gouin. Second, Gouin admitted nothing except that he was at his condo as ordered by the court.

	In both cases, Gouin and Adickes were victims of false charges. Adickes was not a vagrant and Gouin was also not where he should not have been. Adickes was lawfully where she was when arrested. Gouin was lawfully where he was when DiPiano maliciously phoned the police at the behest and encouragement of Dori, who was by his side at the time DiPiano made the call from his cellphone. And in both cases, there was a private conspiracy. Gouin was a member of the class of men, being discriminated against by the probate and family court and law-enforcement authority. The statistics on enforcement of c. 209A will bear this out.

15.	On p. 13, DiPiano wrote, "Gouin’s charge arose from his having contact with Chadbourne, which contact Gouin admitteds [sic] was proscribed by court order, as contained in . . . [Complaint] Exh E." That is a misleading spin on the facts. The charge arose because DiPiano and/or Dori never gave notice to Gouin’s counsel or Gouin that she had decided to attend the appraisal of the condo on May 13th. Gouin was at his home. Dori came from Maine to the Boston condo unannounced. That is how the so-called "contact" arose. The video Gouin took with a videocamera of the event show that Dori walked up to DiPiano and pulled out the Maine order and gave it to him, whereupon without hesitation, DiPiano threatened Gouin to leave or he would call police. When Gouin suggested they just get on with the appraisal, DiPiano entered 911 into the keypad of his cellphone.

16.	On p. 14, DiPiano contends that Gouin only pled that he had a "right to file the prior pending lawsuit." Gouin also pled that he has a liberty right to remain free of false criminal charges. See Issue 5.

17.	DiPiano outright lies on pp. 16 and 17. He denies telling Nissenbaum that the appraisal of the condo did not go forward on May 13th, but see Complaint Exhs. M and N, both of which show that DiPiano did, indeed, lie to Nissenbaum on May 13th and then on 3 June 2002, lied to the court [seeComplaint Exh. R].

	Then on p. 17, DiPiano misleads by misrepresenting that Attorney Nissenbaum’s testimony supported DiPiano’s rendition of the event on May 13.

19.	In note 12 on p. 18, DiPiano lies outright once again: He wrote that after he said at the deposition that the appraisal did not go forward, Gouin’s counsel interrupted, but the transcript marked Complaint Exh. M clearly proves that DiPiano finished his statement that the appraisal did not go forward and that immediately Nissenbaum – not Johnson – asks DiPiano, "Why not?" [lines 19 and 20 of Complaint Exh. M]. A close reading of footnote 12 in entirety reveals that DiPiano is grasping for straws to cover up his lie. Outrageously, he says that "Johnson manufactured the issue." In fact, Gouin and Johnson attached to the Complaint documentary proof of who said what and who did what.

20.	The audacity of DiPiano comes out in full bloom in note 13 on pp. 19-20. There he opines about what a world it would be were he to have a client with a valid order and he was unable to summons the police on Dori’s behalf "for fear of reprisal via a federal lawsuit." Now that is an ad hominem remark, one designed to appeal to the court’s feelings and prejudice rather than to its intellect. Webster’s Seventh New Collegiate Dictionary.

21.	DiPiano failed to address his conduct that is akin to witness tampering. SeeComplaint Exh. K. The first page of Exh. K (page 5420) reflects Appraiser Goulet’s morning testimony: A. "I’m not sure [DiPiano] wanted to come in [to the condo with the appraiser]. After lunch, cross-examination continued. Goulet had gone to lunch with DiPiano and they discussed his testimony (5564:1–5565:5). When trying to give a nonresponsive answer to a question about Gouin (5563:17-19), Goulet changed his testimony about DiPiano by inserting the word intent, causing a slight change in meaning and emphasis:

	A. "I’m not sure what Mr. DiPiano’s intent was at that point. I don’t know. (5563:20-21) Q. … Isn’t it true that you said earlier that it appeared that he did not want to enter? (5564:2-3) A. I never said that. (5564:4) Q. Here today? (5564:5) A. I never said that. (5564:6) In the morning (Exh. K, page 5421), Goulet testified that Dori did not appear to want to go inside (lines 3-8). In the afternoon, Goulet’s testimony became "I don’t remember knowing whether she had any interest in going in or not" (5565:lines19-23).

22.	DiPiano failed to file the Maine order in accordance with section 5A of M.G.L. c. 209A, failed to address his failure or Dori’s failure to file it prior to 13 May 2002. In fact Dori did not file the Maine order in accordance with 209A:5A until 30 April 2003.