#55, Drano Series
Opposition to Motion to Dismiss by Pocahontas*
Smith won this round!
The court DENIED
Pocahontas and Plumber's Motion to Dismiss.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MASSACHUSETTS------------------------------------------------
John Smith, Jr.
Plaintiff CIVIL ACTION:
v.Pocahontas Smith, Esq., in her professional
and individual capacities,
Sean Plumber,
Billy Colorone, in his official and
individual capacities,
Timothy McBroghan, in his official and
individual capacities,
Big City,
Big Honcho, Police Commissioner of
Big City, Mass., in his official
and individual capacities,
John Does,
Jane Doe
Defendants
-----------------------------------------------------------PLAINTIFF'S OPPOSITION AND MEMORANDUM IN SUPPORT OF HIS OPPOSITION TO MOTION TO DISMISS
BY POCAHONTAS SMITH AND SEAN PLUMBERNow comes Plaintiff John Smith ["Smith"] of Massachusetts and submits this opposition and memorandum in support of his opposition to the Motion to Dismiss by Defendants Pocahontas Smith ["Pocahontas"] and Sean Plumber ["Plumber"]. A supporting affidavit accompanies this motion.
NOTE Smith incorporates herein by reference in their entirety the facts and arguments in the following documents. It will save court time and resources by diminishing any repetition.
1. PLAINTIFF'S OPPOSITION AND MEMORANDUM IN SUPPORT OF HIS OPPOSITION TO MOTION TO DISMISS BY POLICE COMMISSIONER HONCHO IN HIS INDIVIDUAL CAPACITY2. PLAINTIFF'S OPPOSITION AND MEMORANDUM IN SUPPORT OF HIS OPPOSITION TO MOTION TO DISMISS BY THE CITY OF BOSTON AND HONCHO IN HIS OFFICIAL CAPACITY3. PLAINTIFF'S OPPOSITION AND MEMORANDUM IN SUPPORT OF HIS OPPOSITION TO MOTION TO DISMISS BY DEFENDANT POLICE OFFICERS COLORONE AND McBroghan
SUPPLEMENTAL FACTUAL BACKGROUNDSmith incorporates herein by reference the FACTUAL BACKGROUND in his Opposition and Memorandum in Opposition to Motion to Dismiss by Officers Colorone and McBroghan, and further supplements those facts as follows.
As to Pocahontas: Pocahontas's motive was to gain a collateral advantage in the couple's divorce. If Smith were to be arrested and convicted, Pocahontas would have had the issues of custody of the children, alimony (from her to him: Smith was the primary caregiver, the "house-husband"), and property distribution resolved outside of the Probate & Family Court: She would get the children and the Boston home, and would be free of alimony and potential child-support obligations.
To accomplish her goals, she elicited Plumber's help. Telling him that Smith had no right of access to the residence and that she had an order giving her the exclusive use and possession of it, she got him to move into Smith's residence. The phone in Plumber's name and installed in the couple's Temple Street property, was ordered prior to the old 209A expiring on 13 December 2000. She reiterated the falsehood on the phone to Plumber on, at the very least, the morning of January 5th, prior to the police arriving at the residence and arresting Smith. She reiterated it again when she spoke on the phone to Defendant Officer Colorone.
As to Plumber: Plumber aided and abetted Pocahontas to set up Smith for arrest by moving in to the residence, staying in wait for Smith's arrival, making a 911 call to report a breaking and entering in progress, telling Smith there was a restraining order against him, ordering Smith to leave, and -- contrary to Pocahontas's assertion that they just wanted Smith to be removed and not be arrested -- telling Smith that he was "subject to arrest" should he stay [[Complaint, Exh. A, p. 2, line 5], the latter being tantamount to a threat and intimidation to compel Smith to leave in fear of being arrested.
Plumber's motive was to help his stepsister and get cheap digs.
Plumber had the ulterior motive of helping his sister and getting a pleasant and convenient place to live in Downtown Boston for very low rent.
As a result, Smith was damaged in ways described in Issue 7, infra.
AS TO WHAT POCAHONTAS TOLD THE POLICE OFFICERS
Smith alleges that Pocahontas told the police that she had an order giving her exclusive use and possession of the couple's Temple Street property, which had been the marital home. The actions of the police officers bear this out, i.e., they support Smith's conclusion. They did not investigate. They should have consulted with their immediate supervisor. They did not. (This is what an internal investigations officer told Smith'' counsel.) The written BPD regulations are silent.
Given that Pocahontas has failed to file an affidavit or write anything about what she told the police, Smith's counsel has reviewed Pocahontas and Plumber's brief, written by Pocahontas herself, and has compiled what Pocahontas had to say regarding the Temple Street property. See Table. Clearly, Pocahontas, to this day, continues to contend that Smith had no right to access the property and it is likely that this is what she told the officers.
On 24 April 2001, Pocahontas testified in Probate & Family Court that she had an order giving her exclusive use and possession of the Temple Street property. Her evasiveness on the stand was evident. She babbled. She was circumlocutory. As a lawyer who graduated Harvard Law School cum laude, her "performance" was not credible. Shortly thereafter. her divorce lawyer tadmitted to the court that she could no such order in her file. On 26 April 2001, the court itself acknowledged to counsel and parties that there was no such order. The only order which restrained Smith from going to the property except to get the children for visitation was the 209A order which had expired on 13 December 2000 . . . and, of course, the new 209A which had not been served by January 5th, the day Smith was arrested.
Given also that the officers also have not filed any affidavits and the transcript gives only Colorone's side of the telephone conversation with Pocahontas, the affidavits of both Colorone and Pocahontas are critical. Their motions to dismiss should not be considered given their failure to provide affidavits under the pains and penalties of perjury.
STANDARD OF REVIEW
Incorporated herein by reference as stated in the NOTE above.
Page Pocahontas's assertions on her and Plumber's behalf that Smith
TABLE
was barred from the Temple Street home and that she had
exclusive use and possession
1 Pocahontas asserts that Smith was barred by 209 order to
go to the couple's Temple Street property1 Pocahontas got restraining order ["209A"]
2 Plumber informed police that the 209A not yet served
4 Pocahontas obtained a 209A order on 13 December 1999. It
expired on 13 December 2000. Pocahontas asserts that the old
order had restrained Smith from entering the couple's Temple
Street property4 Pocahontas got a new 209A order on 4 January 2001.
NOTE:Pocahontas does not seem to know that an unserved 209A is invalid until served, and that if difficulty is encountered in serving a 209A, a motion must be made asking the court either to accomplish service or waive it. Com. v. Munafo, infra.
5 Pocahontas acknowledges that Plumber and she, on 5 January
2001, told the police. after they arrived to reject Smith from the
home, that the 209A had not been served.6 Pocahontas repeats the 209A had not been served on Smith.
12 Pocahontas contends that the 209A issued on 4 January
2001 prohibited Smith from the Temple Street property and
that Smith "had no `right' to be living there"12 n. 10 Pocahontas re-asserts that by virtue of the unserved 209A,
Smith was not entitled to stay at the Temple Street property
until it was served. She does state that not knowing about the
209A, he could not "possess the mens rea necessary to support a
conviction"13 Pocahontas acknowledges that she and Plumber provided the
police with information14 Pocahontas re-asserts that Smith was legally barred by the
209A16 Pocahontas re-acknowledges that Plumber told police that the
209A had not been served on Smith16 Pocahontas writes, "all Ms. Smith did was talk to the police and
provide them with a fair statement of facts, including that the plaintiff
had not been served with the restraining order"NOTE:Pocahontas did not file an affidavit in support of her motion and other than the above statement, never described the details of her allegedly "fair statement"
ARGUMENTS
1. Where Pocahontas and Plumber were jointly engaged with Colorone and McBroghan, Pocahontas and Plumber were acting under color of law for purposes of section 1983 actions.
"Private persons, jointly engaged with state officials in the challenged action, are acting `under color' of law for purposes of Section(s) 1983 actions." Dennis v. Sparks, 449 U.S. 24, 27-28 (1980).
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."
Camilo-Robles v. Hoyos, 151 F.3d 1, 10 ((1st Cir. (Puerto Rico) 1998) (cite omitted). For instance, when a state allows an ex parte attachment pursuant to a state statute which is "being challenged as being procedurally defective under the Due Process Clause" [Lugar v. Edmondson Oil Co., 457 U.S. 922, 923 (1982)] there is "a sufficient nexus between state and individual to demonstrate state action and permit a § 1983 suit against the individual who sought the attachment." Gonzales-Morales v. Hernandez-Arencibia, 221 F.3d 45, 49 (1st Cir. 2000), citing Lugar, 457 U.S. at 942 ("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").
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." Wagenmann v. Adams, 829 F.2d 196, 209-210 (1st Cir. 1987) (emphasis supplied).. . . See 32 Am.Jur.2d False Imprisonment §§ 42 ("Persons other than those who actually effect an imprisonment may be so related to the act or proceeding as instigators or participants therein as to be jointly liable, for all who aid, direct, advise, or encourage the unlawful detention of a person are liable for the consequences."), 45 ("[T]he arrest by the officer must be so induced or instigated by the defendant that the act of arrest is made by the officer, not of his own volition, but to carry out the request of the defendant.").
"[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).
2. Where Pocahontas made implicit or explicit false statements to a law-enforcement officer, the private-citizen exception does not apply.
Pocahontas argues for herself that when she spoke to Colorone, she was acting in her individual capacity and not in her capacity as a lawyer, an officer of the court. Being "off-duty," Smith contends, does not protect her.
While she did not give it a name, Pocahontas appears to be invoking the "private-citizen exception" for her activity while conducting her personal business. That exception does not apply here. See Matter of Labovitz, 425 Mass. 1008, 1008 n. 1 (1997) and Matter of Concemi, 422 Mass. 326, 331 (1996) and the cases gathered in n. 5 about three attorneys who "received less substantial bar sanctions [for] conduct undertaken in their capacities as private citizens." Under Mass.R.Prof.C. 8.4(e), it is professional misconduct to "engage in conduct involving dishonesty, fraud, deceit, or misrepresentation, or under Mass.R.Prof.C. 8.4(h), to "engage in any other conduct that adversely reflects on his or her fitness to practice law."
For instance, where an attorney persisted in continued and wilful contempt of lawful foreign-court orders during the course of his personal divorce proceedings, he was suspended from the practice of law in Massachusetts for three months. In re Kersey, 432 Mass. 1020, 1020-1021 (2000). It is unclear whether or not Kersey was representing himself in his divorce. In Matter of Finnerty, 418 Mass. 821, 829 (1994), Finnerty was suspended for six months for misrepresenting his financial worth to court.
Here, Pocahontas, a Harvard-Law-School educated attorney, was using her expertise gained during her employment at Skadden, Arps and Goodwin, Procter, and Hoar, to gain a collateral advantage in the couple's divorce, the collateral advantage being to get Smith to surrender the property on Temple Street in Boston. Powers v. Leno, 24 Mass.App.Ct. 381, 383-384 (1987), quoting Cohen v. Hurley, 20 Mass.App.Ct. 439, 441-442 (1985), quoting from Prosser & Keeton, Torts, § 121, at 898 (1984), and citing American Velodur Metal, Inc. v. Schinabek, 20 Mass.App.Ct. 460, 470-471 (1985), cert. denied, 396 Mass. 101 (1985), cert. denied 475 U.S. 1018 (1986). If Smith got a record, he would find it next-to-impossible, if not impossible, to get the custody he was seeking of the couple's twin boys, for whom Smith had been the primary caregiver. He was the house-husband, as planned by the couple much prior to the conception of the twins. A quiet, gentle, good-natured man, not at all given to violence, or even anger, Smith did not give Pocahontas opportunity to muddy him up, as is fashionable and easy to do in today's divorce courts. So knowing that he had been coerced out of the house by judicial order, a bogus 209A, and wanted desperately to return home, she schemed to set him up. Let the police do it, Smith contends, she thought.
In sum, an attorney is rarely "off-duty," and certainly is not "off-duty" when dealing with matters involving the law. An analogy may be drawn to police officers. For instance, "an off-duty police officer who takes part in an arrest is, by definition, engaged in his official duties."Van Hull v. Marriott Courtyard, 87 F.Supp. 771, 777 (N.D. Ohio 2000) (cite omitted). "[A]n off-duty police officer, injured while arresting a shoplifter at his second job, is covered by the police department's workers' compensation insurance." Id. at 777. Similarly when an off-duty police officer makes an arrest as a security guard. Id. Like Deputy Slough in Van Hull, active participation in the incident "fatally undermines" Pocahontas's contention that she was acting as a mere civilian. Id.
3. Where there is a dispute as to whether Pocahontas and Plumber (a)maliciously instigated the prosecution of Smith, (b)made implicit and/or explicit false statements to the police, (c)acted with malice, the fact issues are questions for the jury, and dismissal of Smith's count against Pocahontas and Plumber for malicious prosecution, and false arrest and imprisonment claims is inappropriate.
MALICIOUS PROSECUTION. Smith contends that Pocahontas and Plumber instigated the prosecution against him both maliciously and without probable cause. Pocahontas and Plumber contend otherwise. The issue is in dispute and raises, therefore, a question for the jury. Griffin v. Dearborn, 210 Mass. 308, 312-313 (1911).
The first two elements: The first two elements, the commencement of a criminal proceeding and the termination of the proceeding in favor of Smith, of Smith's malicious prosecution claim are not in dispute. What is in dispute is whether Pocahontas and Plumber stated the material facts to Defendant Officer Colorone without any concealment and expected him to make further investigation. If so, then Pocahontas and Plumber 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 Pocahontas and Plumber are liable. Id.
A significant relevant and material fact is that the officers arrested and prosecuted Smith after speaking to Pocahontas and Plumber. Given the other facts which the officers knew from the documents shown to them by Smith -- (a) the deed showing that Smith was co-owner of the property, (b) the expired 209A order, (c) Pocahontas's return address on an envelope in which Smith received alimony from Pocahontas and which showed Pocahontas's address in XXXX -- the officers should have known (1) that no "breaking and entering" could have occurred (and they certainly did not see any crime being committed), (2) that no attempt to violate a 209A order had occurred, (3) that no violation of an existing 209A order had occurred, (4) that Smith's drill was not a burglarious tool, inasmuch as he could not burglarize his own home, and (5) that Smith had a right, with the exception of such changes which require permitting, to alter his own home as he saw fit.
Therefore, the inescapable conclusion is that Pocahontas and/or Plumber had to have caused the officers to arrest and charge Smith without the requisite probable cause . . . but the officers have failed to make that claim. And they have not made that claim because they knew they had an obligation, a duty, to investigate the matter further and that they did not do. To wit, they had either to ask Pocahontas to send them the court order which she so readily proclaimed both existed and showed that she had court-ordered exclusive use and occupancy and possession of the Temple Street property OR to seek out that order from the court itself, which was literally only a block away from their police station. They knew who Smith was and they knew where they could find him. There was no complaint of violence and no danger of imminent harm to anyone.
There simply was no need to arrest and imprison Smith. So it had to be something that Pocahontas or Plumber said during their phone calls to the police station or during their phone conversations with Colorone which made him and his partner, McBroghan, act with such deliberate indifference or in reckless disregard of the known, provable facts in front of them. The only other possible reason is that they received egregiously inadequate training to do their assigned work or that they were simply incompetent at their job.
The third element: The law of the third element, absence of probable cause for the charges, is discussed in Issue 3 of Smith's opposition to Colorone and McBroghan's motion to dismiss. The facts for the third element are discussed in Smith's opposition to the motion to dismiss by both the City of Boston and Honcho (in his official capacity). Both pleadings are incorporated herein by reference. Some additional law on probable cause in a malicious prosecution case is below.
The fourth element: The fourth element, actual malice, is inferable from the absence of probable cause. Griffin v. Dearborn, 210 Mass. 308, 312 (1911); Keefe v. Johnson, 304 Mass. 572 (1939), citing Griffin, at 312. Actual malice may also be inferred when a defendant knowingly makes a false statement to the police. Alternatively, actual malice "requires knowledge that a statement is false or reckless disregard of whether or not it is false." 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., infra (a case cited by Pocahontas and Plumber), citing Hayter v. City of Mount Vernon, 154 F.3d 269, 275 (5th Cir.1998): "Under Texas law, malice may be inferred from the lack of probable cause or from a finding that the defendant acted in reckless disregard of the other person's rights."
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., infra (cited by Pocahontas and Plumber but not for the above proposition).In White v. Standard Oil Co., 474 N.E.2d 366, 367-368 (Ohio App. 1984) (treatise cites omitted), another case cited by Pocahontas and Plumber, the 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 Pocahontas and Plumber suggest this court should find. But the court in White continued, "... but the procurement of false imprisonment is the equivalent in words or conduct to `Officer, arrest that man!'" And this is what Smith suggests is the appropriate conclusion in the context of the facts of this case: that two phonecalls to the police were equivalent to pleading "Officer, arrest that man!"
As both an accomplished litigator and a party to a divorce, Pocahontas knew, or should have known, that there was no order giving her exclusive use and possession of the property and that the information she was giving to Officer Colorone was false.
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.
"A jury may infer malice from the circumstances, however, even if a defendant testifies or otherwise protests his good faith." Sheraton, at *5. In the instant case, the Boston Police Incident Report which accompanied the Criminal Complaint stated that Smith was arrested because he tried to gain entry to his own house, but then he was not charged with "entering" because there was no basis for that charge. Clearly, the officers recklessly disregarded the true facts because they credited Pocahontas's iteration of the law because she is a woman,1 a lawyer, and an officer of the court.
1 Boston Police Department statistics will likely show that women are believed over the men approximately 95 per cent of the time. This fact will be verified during discovery should this court deem persuasive Smith's arguments against dismissal of his claims.Where Pocahontas could not produce over the telephone a court order showing that Smith had no right to be at his home, the information regarding the use and possession of the home was sufficiently unreliable or incomplete to support a finding that the officers could rely upon it without additional information. Carroll v. Gillespie, 14 Mass.App.Ct. 12, 20 (1982), cites omitted.In Griffin v. Dearborn, 210 Mass. 308, 313 (1911), cited by Carroll at 20, the defendant knew that his horse was taken by Griffin's minor son, but did not know whether the son did as he claimed, to wit, that he took the horse on order from Griffin. Griffin's immediate prosecution of the son without any "precedent investigation" could be found to lack reasonable grounds.
In Smith v. Eliot Sav. Bank, 355 Mass. at 548, the bank failed to pursue information as to whereabouts of Smith, in whose name unauthorized withdrawals were made and who had been identified as the forger by the teller seven months after the brief withdrawal transaction. The jury could have found that the identification was "so suspect that a 'man of ordinary caution and prudence' would not have relied upon it." Carroll, 14 Mass.App.Ct. at 20-21, quoting from Bacon v. Towne, 4 Cush. at 239.)
a. Where Pocahontas and/or Plumber gave false information to the police, Pocahontas and/or Plumber may be deemed responsible for the instigation of the prosecution against Smith, making dismissal of Smith's count against Pocahontas and Plumber for malicious prosecution, malicious abuse of process, and false arrest and imprisonment inappropriate.
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. Lewis v. Continental Airlines, Inc., 80 F.Supp. 686 (S.D. Tex. 1999), a case cited by Pocahontas and Plumber in their brief, but not for this proposition.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). The court continued:
Truth can be distorted as readily by omission as by commission. [] [O]ther state courts have recognized such an interpretation of Section 653. Thus, in Hirth v. Hall, 96 N.M. 58, 627 P.2d 1257, 1259 (N.M. Ct. App. 1981), the court relied on the Restatement in vacating an order granting summary judgment on a malicious prosecution claim where there was a genuine issue of material fact as to whether "defendant furnished false information by not disclosing ... several relevant aspects of the dispute...." Griffiths, 988 F.2d at 473.Similar support for the same legal proposition is found in Rose v. Whitbeck, 277 Ore. 791, 562 P.2d 188, 191, reh'g denied and opinion modified, 564 P.2d 671 (Or. 1977), where in discussing the Restatement, the court stated that "this rule contains the limitation that the defendant ... did not withhold information .... " Additionally, in Gustafson v. Payless Drug Stores Northwest, Inc., 269 Ore. 354, 525 P.2d 118, 123-24 (Or. 1974), in discussing the Restatement, the court stated that "the same rule applies if the private person knowingly fails to furnish information which the jury could find the private person knew was material to action by the official." This interpretation of the general rule was also recognized in Thomas v. Cisneros, 596 S.W.2d 313, 316-17 (Tex.Civ.App. 1980)....
"[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). Wainauskis v. Howard Johnson Co., 339 Pa.Super. 266, 488 A.2d 1117, 1123 (Pa.Super.Ct. 1985) (upholding verdict against initiator where jury "could have reasonably found that appellant's employees withheld material evidence and failed to make a full and fair disclosure of all relevant facts to the prosecuting authorities").
"[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).
"[a] private citizen is responsible for instigating a false arrest if he either directs that the arrest be made or provides false information that is material in the arrest occurring." This is a correct statement of the general rule. See, e.g., Johnson v. First National Bank & Trust Co., 207 Neb. 521, 300 N.W.2d 10, 13 (1980); Harrison v. Southland Corp., 544 S.W.2d 692, 693 (Tex.Civ.App.1976); 3 Lee & Lindahl, Modern Tort Law § 41.02 (rev. ed.1990); Restatement (Second) of Torts § 45A cmt. c (1965); Landis, Annotation, False Imprisonment: Liability of Private Citizen, Calling on Police for Assistance after Disturbance or Trespass, for False Arrest by Officer, 98 A.L.R.3d 542 § 2 (1980).
Wishnatsky v. Bergquist, 550 N.W.2d 394, 398 (N.D. 1996). Pocahontas and Plumber cited Wishnatsky for the other side of the coin. It is Pocahontas's obligation as an attorney to educate the court, not mislead it. In Van Hull v. Marriott Courtyard, 87 F.Supp. 771 (N.D. Ohio 2000), too, also cited by Pocahontas and Plumber, the court gave both sides of the coin. The other side was if the civilian took an "active part" in bringing about the arrest or imprisonment, the civilian could be held liable. Id. at 776.In Arrowsmith, infra, which Pocahontas and Plumber cited, the court wrote:
A private person who actively instigates or procures an arrest is generally regarded as the principal for whom an arresting officer acts. [Cites omitted.] However, if the decision to arrest or prosecute is left to the uncontrolled discretion of the officer, or if the officer makes an independent investigation or prosecutes for an offense other than the one charged by the private person, the latter will not be deemed as having instigated the proceedings.
Arrowsmith v. Williams, 331 S.E.2d 30, 33 (Ga.App. 1985) (cites omitted). Here, the officers did not eventually charge for "gain[ing] entry," but they did charge him, bizarrely, for attempting to violate a 209A and also for violating a 209A. As the TABLE, supra, shows, that was in line with what Pocahontas told them regarding the 209A, to wit, that it was valid. Indifferent to both the law and Smith, the officers followed her lead, and with the same deliberate indifference, they also failed to make an independent investigation. Of course, despite Pocahontas's continuing protestations to the contrary to this day, the unserved 209A was invalid. Com. v. Munafo, 45 Mass.App.Ct. 597, 601 (1998), cert. denied, 707 N.E.2d 1078 (1998) (since no judicial authorization to omit service of the complaint, there was no valid restraining order). Conclusion: Pocahontas's implicit and/or explicit false statement to Colorone was equivalent in words or conduct to "Officer, arrest that man!," as the White court pointed out.Harris v. Kelly, 218 N.W.2d 360 (1974), another case cited by Pocahontas and Plumber, bears no resemblance to the instant case. The police were summoned to remove from the Medical Society office a woman who was "screaming at the top of her lungs, standing, then sitting, and then lying and shaking." The officer reported that "he alone decided to take [the woman] to the [ ] hospital.' Id. at 363. No one at the Society made any request as to the handling of the woman. Id.
A person may be liable for false imprisonment not only when the person's own acts directly impose a restraint upon the liberty of another but also when that person, by providing false information, causes such restraint to be imposed. Karjavainen v. Buswell, 289 Mass. 419, 427 (1935) (questioned on other grounds by Mezullo v. Maletz, 331 Mass. 233, 239-240 [1954]). Restatement (Second) of Torts s 37 (1965) ("If an act is done with the intent to confine another, and such act is the legal cause of confinement to another, it is immaterial whether the act directly or indirectly causes the confinement").
Sarvis v. Boston Safe Deposit and Trust Co., 47 Mass.App.Ct. 86, 97-98 (1999).In Bemis v. Kelley, 671 F.Supp. 837 (D.Mass. 1987), which Pocahontas and Plumber cite for the proposition that where some defendants, who allegedly gave false information to the police, stood idly by while Bemis was arrested, their failure to stop the arrest was insufficient to form the basis of a conspiracy charge [Pocahontas's brief at 14].
The Bemis story is nothing like either Pocahontas's rendition or the instant case. Bemis was suspected and arrested for two felonies (larceny of a motor vehicle and motor vehicle parts) and was under suspicion in a federal arson investigation. Parts on his car were confirmed to be stolen parts. And at the time of the Bemis decision, Bemis, having pled guilty on several arson counts, was serving 30 years in federal prison. The defendants were the police officers on his tail.
The law appears to be well-settled across the country. Given that neither Pocahontas nor Plumber nor Colorone nor McBroghan filed any supporting affidavits with their motions, they have added no new pieces to the puzzle of what Pocahontas said to Colorone on the telephone. Only logic can guide this court. Given that Colorone and McBroghan knew that Smith was co-owner of the Temple Street property, that Pocahontas was living in XXXX, that an old 209A had expired and a new one was as yet unserved, that they did not see any "drilling," and that they did not see any crime being committed, on what basis did Colorone and McBroghan arrest Smith? Was it something Pocahontas or Plumber said or was it inadequate training that made them arrest Smith? Only discovery and/or a jury can answer the question.
Given that Pocahontas stated in her brief FOUR times that Smith access to the property was restricted by the court -- and we know that not to be true -- did she state it also to Colorone? Smith suggests that she did. She even testified to that fact on 24 April 2001 in Suffolk County Probate & Family Court. There is no reason to believe that she told Colorone otherwise.
For the above-mentioned reasons, dismissal of Smith's counts for malicious abuse of process and false arrest and imprisonment is inappropriate.
4. Where Pocahontas and Plumber used process to accomplish an ulterior or illegitimate purpose for which it was not designed or intended, which resulted in Smith being damaged, dismissal of Smith's count for abuse of process is inappropriate.
"The essential elements of the tort of abuse of process are (1) process was used; (2) for an ulterior or illegitimate purpose; (3) resulting in damage." Vittands v. Sudduth, 49 Mass.App.Ct. 401, 406 (2000) (internal quotes omitted), citing Kelley v. Stop & Shop Cos., 26 Mass.App.Ct. 557, 558 (1988), quoting from Datacomm Interface, Inc. v. Computerworld, Inc., 396 Mass. 760, 775-776 (1986). "More specifically, abuse of process has been described as a `form of coercion to obtain a collateral advantage, not properly involved in the proceeding itself, such as the surrender of property or the payment of money.'" Vittands, at 406, quoting Cohen v. Hurley, 20 Mass.App.Ct. 439, 442 (1985), quoting from Prosser & Keeton, Torts §121, at 898 (5th ed.1984).
"It is immaterial that the process was properly issued, [or] that it was obtained in the course of proceedings that were brought with probable cause and for a proper purpose.... The subsequent misuse of the process, though properly obtained, constitutes the misconduct for which the liability is imposed...." [Cites omitted.] Further, "[t]he ulterior motive may be shown by showing a direct demand for collateral advantage; or it may be inferred from what is said or done about the process." Ladd v. Polidoro, 424 Mass. 196, 198 (1997), quoting from Prosser & Keeton, Torts § 121, at 899 (5th ed.1984).
Vittands, 49 Mass.App.Ct. at 406.22 See also Gabriel v. Borowy, 324 Mass. 231, 236 (1949); Beecy v.Pucciarelli, 387 Mass. 589, 595-596 (1982); Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 389 (1975); Powers v. Leno, 24 Mass.App.Ct. 381, 383-384 (1987); Fishman v. Brooks, 396 Mass. 643 (1986); Restatement (Second) of Torts § 682, at 474 (1977); Prosser & Keeton, Torts § 121, at 899 (5th ed. 1984).
As to Pocahontas: Pocahontas wanted a collateral advantage in the couple's divorce, the collateral advantage being that if Smith were to be convicted, she could resolve the issues of custody of the children, alimony (from her to him), and property distribution outside the Probate & Family Court: She would get the children and the Boston home, and would be free of alimony and potential child-support obligations. To accomplish her goals, she elicited Plumber's help and carried out her plan to reach her goal as described above in the FACTUAL BACKGROUND section.
As to Plumber: Plumber had the ulterior motive of helping his sister and getting a pleasant and convenient place to live in Downtown Boston for very, very, very low rent.
As a result, Smith was damaged in ways described in Issue 7, infra.
5. Where Colorone, McBroghan, Pocahontas, and Plumber had the same object to be accomplished, an agreement on the object or course of action, committed one or more unlawful overt acts, and Smith's damages are a direct result of those acts, dismissal of Smith's count against Pocahontas and Plumber for conspiracy is inappropriate.3
3 Com. v. Silanskas, 433 Mass. 678, 2001 WL 363524 at *7 (2001). First, Smith incorporates herein by reference Issue 10 in its entirety from Smith's opposition to the motion to dismiss by Colorone and McBroghan.
Second "[a] conspiracy may be demonstrated by circumstantial evidence. Moore v. The Marketplace Restaurant, Inc. 754 F.2d 1336 (7th Cir. 1985) (private parties provided false information to arresting officer), citing Hanrahan v. Hanrahan, 600 F.2d 600 (7th Cir. 1979). Here, in the instant case, we have logic, too.
Third, under Massachusetts law, there are two causes of action called "civil conspiracy." The second type is what, Smith suggests, is akin to the facts here.
This second type of civil conspiracy is more akin to a theory of common law joint liability in tort. It is explicitly recognized in Massachusetts law. See Gurney v. Tenney, 197 Mass. 457 (1908); see also Phelan v. Atlantic Nat'l Bank, 301 Mass. 463 (1938) ("[A]verment of conspiracy does not ordinarily change nature of cause of action [sounding in tort] nor add to its legal force.").... Aetna Casualty Surety Co. v. P & B Autobody, 43 F.3d 1546, 1564 (1st Cir. 1994).[T]he concept is invoked to support liability of one person for a tort committed by another. For liability to attach on this basis, there must be, first, a common design or an agreement, although not necessarily express, between two or more persons to do a wrongful act and, second, proof of some tortious act in furtherance of the agreement....
Where two or more persons act in concert, each will be jointly and severally liable for the tort. See id.; see also New England Foundation Co. v. Reed, 209 Mass. 556 (1911) ("The gist of a civil action of this sort is not the conspiracy, but the deceit or fraud causing damage to the plaintiff, the combination being charged merely for the purpose of fixing
joint liability on the defendants."). According to the Restatement: For harm resulting to a third person from the tortious conduct of another, one is subject to liability if he (a) does a tortious act in concert with the other or pursuant to a common design with him....
The Supreme Judicial Court has implied that the Massachusetts common law of civil conspiracy encompasses liability of this nature, even if the elements of liability are not in all respects identical to those defined in this section of the Restatement.... Payton v. Abbott Labs, 512 F.Supp. 1031, 1035 (D.Mass.1981) ("The concert of action theory in Massachusetts tracks § 876(a) of the Restatement.").
Fourth, no preconceived plan or prior contact is necessary, contrary to what Pocahontas and Plumber assert on pages 9 and 14 of their memorandum, to plead conspiracy. When Pocahontas and Plumber both encouraged the police to arrest Smith and participated actively in both the unlawful arrest and presumptively valid judicial proceeding, Pocahontas and Plumber, without any prior contact with the police officers or those who then proceeded with the adjudicative proceedings, were colluding with them and were state actors as contemplated by § 1983. Cf.Lugar, 457 U.S. at 926.
If the defendants (a) had an object to be accomplished; (b) had an agreement on the object or course of action; (c) performed one or more unlawful overt acts; and (d) caused Smith damages that were a direct result of those acts, there is a conspiracy. There is no time limit within which the conspiracy must be completed, and, logically, all of the elements can be accomplished even in a day. In the instant case, a plan was preconceived in early December by Pocahontas and Plumber, and perhaps Jane Doe, for keeping Smith out of the Temple Street property forever, and in January, the opportunity for another overt act or two (to keep Smith out of the home) arose. As Defendant Jane Doe remarked on two days before Smith was arrested, when asked for the keys: "Never!!!"
As to Pocahontas: As described in Issue 4, supra, Pocahontas wanted a collateral advantage in the couple's divorce. To accomplish her goals, she elicited Plumber's help. Telling him that Smith had no right of access to the Temple Street property, and that she had an order giving her the exclusive use and possession of it, she got him to move into Smith's Temple Street property. The phone in Plumber's name was ordered prior to the old 209A expiring on 13 December 2000. She reiterated the falsehood on the phone to Plumber on, at the very least, the morning of January 5th, prior to the police arriving at the Temple Street property and arresting Smith. Then she had to have reiterated it again when she spoke on the phone to Defendant Officer Colorone.
A later fabrication by Pocahontas was that she took out the 209A because she feared that Smith would do something to Defendant Sean Plumber [transcript of hearing on 24 April 2001, page 137]. If that were the case, to wit, that Plumber was afraid, Pocahontas could have included Plumber's name on the 209A . . . but she did not.
Pocahontas and Plumber should not have misinformed the officers that Smith had no right to be at the Temple Street property and/or that there was an order giving her exclusive use and possession of the Temple Street property. Were there an order giving her exclusive use and possession of the Temple Street property, Pocahontas would not have needed a 209A to restrain Smith from going there.
Clearly, Plumber acted in reliance on Pocahontas because he had regard for the fact that she had attended Harvard Law School, graduated with honors, and had been a practicing litigator with prestigious lawfirms since her graduation. Had Plumber known the truth, to wit, that there was no valid court order prohibiting Smith from access to his Temple Street property, Plumber might (we speculate) not have suggested to Smith that the police be called. Plumber might also not have moved into the Temple Street property in December as soon as the previous 209A had expired. Given that Plumber did act, however, in concert with Pocahontas, Plumber is equally as liable for conspiring with Pocahontas to deprive Smith of access to his home, of his right to freedom of movement and privacy, of his right to be free of unjustified and unjustifiable arrest, imprisonment, and prosecution.
Smith suggests that Pocahontas has used poor judgment in representing not only only herself but also Plumber. She has a conflict of interest. Plumber's interest is different than hers in this action.
As to Plumber: Plumber conspiratorially aided and abetted Pocahontas to set up Smith for arrest by moving in to the Temple Street property, staying in wait for Smith's arrival, making a 911 call to report a breaking and entering in progress, telling Smith there was a restraining order against him, ordering Smith to leave, and -- contrary to Pocahontas's assertion that they just wanted Smith to be removed and not be arrested -- telling Smith that he was "subject to arrest" should he stay [Complaint, Exh. A, p. 2, line 5], the latter being tantamount to a threat and intimidation to compel Smith to leave in fear of being arrested.
Plumber's motive was to help his stepsister and get cheap digs.
As to Colorone and McBroghan: Because it was in their financial interest to do so, Colorone and McBroghan went along with the ruse Pocahontas was pulling; that is, (a) they accepted as true the false information that Pocahontas has an order for the exclusive use and possession of the home, (b) they, knowing that the old 209A had expired and that the new 209A had not been served -- thereby not making the new 209A valid yet -- lied to Smith and told him he should not be there because there was a restraining order against him [Complaint, Exh. A, p. 4, lines 10-11, (c) they, knowing that the old 209A had expired and that the new 209A had not been served, lied to Smith and told him he was not being arrested for a violation of a 209A, but, in fact, they charged Smith with 209A violations, (d) they, knowing that he was co-owner of the Temple Street property and that the new 209A had not been served, lied to Smith and told him he was being arrested because he tried "to gain entry" [Compl. Exh. A (transcript of arrest), p. 9 line 11], but, in fact, they did not charge Smith with "entering" because it was his property.
The officers' motive was to supplement their salaries by the "court-time pay" they would glean from attending the court session each time Smith's case was scheduled.
6. Where Pocahontas instructed Plumber what to tell Smith, and Plumber repeated to Smith the threat that he was subject to arrest if he did not leave the premises, the threat, intimidation, or coercion to compel Smith to relinquish his constitutional right to his personal liberty and property was sufficient to satisfy the Massachusetts Civil Rights Act, making Pocahontas and Plumber's motion to dismiss Smith's count for the violation of the MCRA is inappropriate.
During the morning phonecall on January 5th with Plumber, Pocahontas told him that he should tell Smith that Smith was subject to arrest should he not leave the Temple Street property. Acting in concert with Pocahontas, Plumber did as he was instructed [Compl. Exh. A, transc.]. This instruction by Pocahontas and overt act by Plumber was only part of the scheme Pocahontas set in motion to set up Smith for arrest.
It began when she learned during the first week in December that her husband wanted to move back into his home. Pocahontas then asked Plumber to move into the Temple Street property. He was to stay in wait for Smith's arrival and make a 911 call to report a breaking and entering in progress. Pocahontas's scheme began to fall apart because, living and working in XXXX, she never made it back to Probate & Family Court in Boston on time to renew the old 209A and serve Smith before he attempted to gain access to what he thought was his unoccupied property.
Telling Smith there was a restraining order against him, ordering Smith to leave, and -- contrary to Pocahontas's assertion that they just wanted Smith to be removed and not be arrested -- telling Smith that he was "subject to arrest" should he stay [Complaint, Exh. A, p. 2, line 5], was tantamount to a threat and intimidation to compel Smith to leave in fear of being arrested. "Coercion" is "the application to another of such force, either physical or moral, as to constrain him to do against his will something he would not otherwise have done" [Deas v. Dempsey, 403 Mass. 468, 471 (1988)] or "the active domination of another's will." Delaney v. Chief of Police of Wareham, 27 Mass.App.Ct. 398, 409 (1989). "Threat" is "acts or language by which another is placed in fear or injury or damage." "Intimidation" is the "creation of fear to compel conduct." Delaney, 27 Mass.App.Ct. at 409. In Sarvis, infra, intimidation was not only to "compel" but also to "deter" conduct.
Pocahontas's instruction to Plumber and Plumber's repeating of the statement "you're subject to arrest" can be deemed to be either a threat or intimidation under the MCRA.
7. Where Smith was emotionally injured while defendants were committing another tort, dismissal of Smith's count against Pocahontas and Plumber for intentional infliction of emotional distress is inappropriate.
Smith incorporates herein by reference Issue 11 in its entirety from Smith's opposition to the motion to dismiss by Colorone and McBroghan.
At the risk of repetition, Smith repeats one proposition which Pocahontas and Plumber missed in their brief: "Extreme and outrageous conduct is not required if the emotional distress resulted from the commission of another tort." American Velodur Metal, Inc. v. Schinabek, 20 Mass.App.Ct. 460, 470-471 1985), cert. denied, 396 Mass. 101 (1985), cert. denied 475 U.S. 1018 (1986). Smith expands on the proposition here.
This is not a case of recovery for the tort of intentional infliction of emotional distress as in Agis v. Howard Johnson Co., 371 Mass. 140 (1976), or of negligent causing of such distress. See Payton v. Abbott Labs, 386 Mass. 540 (1982). Recovery has been allowed in Massachusetts for wrongful use of process including "injury to ... the feelings of the injured person." Titcomb v. Bay State Grocery Co., 254 Mass. 599, 601 (1926). See Malone v. Belcher, 216 Mass. at 211-212. There seems to us to be a clear distinction between (a) mental and emotional distress caused by the commission of an independent and separate tort recognized at common law, and (b) distress constituting the separate tort recognized fairly recently in the Agis case, 371 Mass. at 142-146, and the tort discussed in the Payton case, 386 Mass. at 548-557. See the thorough opinion in George v. Jordan Marsh Co., 359 Mass. 244, 249-256 (1971).
American Velodur, 20 Mass.App.Ct. at 470. The George case reveals the rationale: The emotional distress does not come as a result where there was an intention to cause mental distress, the emotional distress arises out of another tort against the injured party. George. For instance, in Titcomb v. Bay State Grocery Cp., 254 Mass. 599, 601 (1926), the emotional distress arose out of the wrongful use of process of attachment, which caused damages to property and injury to the reputation and feeling of the injured person. And, as in Malone v. Belcher, 216 Mass. 209 (1913), the emotional distress arose when a creditor attached property not to secure his claim, but to prevent the conveyance of the property to someone else.44 In an action for abuse of process, a plaintiff may recover for injuries to "his business credit, [ ] his financial standing, and [ ] his feelings," and all such damages as are the natural and probable consequences of the acts complained of. Malone, 216 Mass. at 212.Notwithstanding that extreme and outrageous conduct is not an element Smith must satisfy, given the circumstances of this case, even were the court to assume that he did have to satisfy the second element, he could, under Agis v. Howard Johnson Co., 371 Mass. 140, 141 (1976) and Boyle, infra, both being cases in which the plaintiffs recovered emotional-distress damages for events less severe than those encountered by Smith. See incorporated brief.The three cases cited by Pocahontas and Plumber, Sholley v. Holliston, 49 F.Supp.2d 14 (D.Mass. 1999); Heinrich v. Sweet, 49 F.Supp.2d 27 (D.Mass. 1999), and Finucane v. Town of Belchertown, 808 F.Supp. 906 (D.Mass. 1992), set out the elements of the "new" tort of emotional distress, and add nothing to this issue.
As a direct result of being falsely arrested and imprisoned, and wrongly prosecuted, and having suffered an unlawful visual body cavity strip-search, Smith was caused a severe alteration of his sleeping patterns, a loss of appetite, embarrassment, worry, grief, stress, humiliation, anxiety, nausea, fear, nightmares, loss of concentration, loss of self-esteem, loss of trust, feelings of betrayal, shock, and emotional scarring, all compensable as emotional distress . . . and all of a much more serious nature than the emotional distress suffered by either Agis or Boyle.
* * * * *
WHEREFORE, Plaintiff prays that Pocahontas Smith and Sean Plumber's motion to dismiss be denied.
4 September 2001 Barbara C. Johnson, Esq.Respectfully submitted,.
PLAINTIFF JOHN SMITH, JR.
By his attorney,Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
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 on 4 September 2001. CERTIFICATE OF SERVICE
4 September 2001 Barbara C. Johnson
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Barbara C. Johnson, Attorney at Law
6 Appletree Lane, Andover, Massachusetts 01810-4102 Phone 978-474-0833