#72, Drano Series
Reply of Brown and Linnehan to Defendants' Appellee Briefs
The Primary arguments are immunity and state action, i.e., whether the defendants were state actors.
The Plaintiffs/Appellants Theodore S. Brown ["Brown"] and James Linnehan ["Linnehan"] hereby submit this Reply to the Briefs of Defendants/Appellees Sandra Fyfe ["Fyfe"]. Eileen Kern ["Kern"], Eli Newberger ["Newberger"], Amy Tishelman ["Tishelman"], Children’s Hospital ["Hospital"], John J. McCarthy ["McCarthy"], Department of Social Services ["DSS"], and the Trial Court ["Trial Court"] pursuant to Rule 28(c) of the Federal Rules of Appellate Procedure.1 1 Only Linnehan brought forward claims against Fyfe.In this brief, Brown and Linnehan identify and correct the factual errors made by the above-listed Defendants/Appellees in their appellate briefs, and note the legal significance of those errors.DEFENDANTS’ FACTUAL ERRORS AND PLAINTIFFS’ ARGUMENT
1. Whether certain parties were state actors or acted under color of law.
A. Sandra Fyfe
i. Whether the appointment of Sandra Fyfe’s employer
transforms her into a "derivative" state actor.
Factual error:On page 6 of her appellate brief, Fyfe contends that her employer, the Collis Center, was "appointed by a state court to perform a sexual abuse assessment on a child and the child's mother.Actual Fact:In paragraphs 117 and 118 of the Complaint, Linnehan wrote:
117. The first court-ordered sexual-abuse assessment was at the Collis Center, which Eileen Kern recommended to Judge Harper. The Complaint was filed in the U.S. District Court for the Eastern Division of Massachusetts on or around 29 May 2000.118. At the Collis Center, during May and June 1988, Defendant Sandra Fyfe, M.S., met with Brenden and with Robyn, and the Executive Director, Thomas "Tom" Tanguay, a licensed social worker, met with Linnehan. Although four therapists recommended that Linnehan be allowed visitation with his son, Fyfe wrote the report and included the recommendation that he not be allowed visitation -- with or without supervision -- with his son. Fyfe had no reasonable suspicion that Brenden had been sexually abused by anyone, including James Linnehan.
The opposition to Fyfe's Motion for Judgment on the Pleadings was served on 11 January 2001. In his opposition, Linnehan wrote: "The record does not appear to show that [the judge] accepted Kern's recommendation to appoint Collis Center to conduct the assessment." [App. II:340]. Linnehan found no document in the record confirming the appointment of her employer or her.
New evidence of the truth of this matter came to the attention of Linnehan's counsel sometime in late Summer or early Fall of 2001: i.e., Linnehan's counsel received from his child's lawyer a docket sheet of the New Bedford Juvenile Court case in re Linnehan's son [Affidavit, Supp.Rec.App.]. That docket sheet was not made available to Linnehan's counsel despite several requests for it. The manner and from whom in that Juvenile Court clerk's office in which the child's attorney got it is unknown.
On that sheet,2 neither Collis Center nor Sandra Fyfe's name is on it and neither is a reference of appointment of either the Center or Fyfe on it.
2 Filed simultaneously with this reply brief is a motion for permission to include that docket sheet as a supplement to the record-appendix, given that it is not part of the record below)Significantly, in her appellate brief, dated 8 March 2002, Fyfe asserts that her employer was appointed but she neither attached a document to confirm that appointment nor asserted there was such a document.That Fyfe did, indeed, file in court a report as if she were duly appointed is, however, not disputed. See also footnotes 7 and 8 of Linnehan's appellate brief, which are incorporated herein by reference.
Argument: At most Fyfe may be considered an independent contractor and a state actor, one, however, without immunity. Linnehan rationale follows.
By accepting Fyfe’s procedurally defective report without giving Linnehan the opportunity to cross-examine her on the report,3 the state court not only violated Linnehan's due process rights [seeLugar v. Edmondson Oil Co., 457 U.S. 922, 923 (1982)], the state "insinuated itself into a position of interdependence with [Fyfe] that it must be recognized as a joint participant in the challenged activity." Camilo-Robles, 151 F.3d 1, 10 (1st Cir. (P.R.) 1998). See P/As' brief at 37-38 and 29-30.
3 Fyfe also never interviewed Linnehan before she recommended that he be denied visitation. Such an act is an indice of her incompetence. Plain incompetence precludes immunity. See argument at P/As' Brief at 34.Further, "[p]rivate persons, jointly engaged with state officials in the challenged action, are acting `under color' of law for purposes of Section 1983 actions." Dennis v. Sparks, 449 U.S. 24, 27-28 (1980).Such joint participation as when a state allows an ex parte attachment, or as here, Linnehan contends, when the state accepted ex parte Fyfe's report, constitutes "a sufficient nexus between state and individual to demonstrate state action and permit a §1983 suit against the individual who sought the attachment." Cf.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").
ii. Whether Employee Fyfe is like a guardian ad litem.
Factual error: On page 10 of her appellate brief, Fyfe contends that she, as an employee of the Center, is to be treated as if she were a duly appointed guardian ad litem.Argument: Linnehan contends that there is a difference between an individual duly appointed and one not so appointed. That difference is process. For the duly appointed, the filing of the report is statutorily allowed. For the non-appointed, the filing of the report is procedurally defective. Safeguards of due process are absent. In the state court, Linnehan suffered the severe deprivation of due process: he was not interviewed by Fyfe, he did not see the report until well after it had been filed, he was never allowed to inspect Fyfe's file, he was never allowed to cross-examine her or the sources of alleged information in the report. It is well-settled in Massachusetts that all of the forementioned rights would have been Linnehan's had Fyfe been a duly appointed guardian ad litem.
Fyfe and her report were mutants unrecognized in the constitutional, statutory, and common law. Cok v. Cosentino, 876 F.2d 1 (1st Cir. 1989), cited by Fyfe, is inapplicable to the situation presented by the instant case. Neither, of course, does Watterson v. Page, 987 F.2d 1 (1st Cir. 1993), upon which Fyfe also relies.
B. Eileen Kern
i. Whether filing a mandated §51A transforms a private
actor into a state actor.Factual error: On page 2 of her appellate brief, Kern contends that "[s]imply adhering to a state statute [i.e., by filing the mandated §51A report] cannot and does not transform an otherwise private individual into an employee, servant, agent or actor of the state."
Argument: Not only is Kern’s assertion incorrect on its face, her argument is too broad and significantly without legal citation. See, for instance, Lugar, supra, for the proposition "that an alleged constitutional deprivation caused `by a rule of conduct imposed by the State' can satisfy the state action requirement." Lugar at 937. There rationale is that 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," 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." Id. at 923. See alsoGonzales-Morales, 221 F.3d at 49, 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").
ii. Whether Linnehan raised in the District Court the issue
of Kern acting under the color of law.Factual error: On pages 1 and 3 of her appellate brief, Kern contends that Linnehan did not raise the issue of her acting under the color of state law, and on page 5, that she was not a state actor.
Actual Fact: In paragraphs 182, 187 of the Complaint, Linnehan wrote:
182. At all times relevant herein, the conduct of all Defendants were subject to 42 U.S.C. §§1983 and 1988.4 The sentence in ¶182 implies that Kern was acting under the color of law, otherwise she would not have been subject to §§1983 and 1988. Although Kern was not court-appointed, she and the court acted jointly.
4 182 is in Count 4, Violation of 42 U.S.C. 1983.
187. Thus, under the alleged color of state law and the unlawful threat of imprisonment should he have violated the unlawful Massachusetts restraining order, Linnehan was threatened, intimidated, and coerced into not enforcing his right under the Maine order of visitation with his child.Argument: At most Kern may be considered an independent contractor and a state actor, one, however, without immunity. Linnehan rationale follows.
Filing the report without ever interviewing Linnehan was an act that indicates bad faith. A report filed with bad faith is a violation of §51A. By substantiating that report, DSS "insinuated itself into a position of interdependence with [Kern and [ ] must be recognized as a joint participant in the challenged activity." Camilo-Robles, 151 F.3d at 10. See discussion at P/As' brief at 37-38 and 29-30.
Further, "[p]rivate persons, jointly engaged with state officials in the challenged action, are acting `under color' of law for purposes of Section 1983 actions." Dennis, 449 U.S. at 27-28.
Such joint participation as when a state allows an ex parte attachment, or as here, Linnehan contends, when DSS accepts an ex parte report such as a §51A report, that participation constitutes "a sufficient nexus between state and individual to demonstrate state action and permit a §1983 suit against the individual who sought the attachment." Cf. Gonzales-Morales, 221 F.3d at 49, 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").
iii. Whether a contractual relationship exists between
Kern’s employer and the CommonwealthFactual error: On pages 7-17 of her brief, Kern contends that she is not a state actor. As a basis, she asserts (a) that a contractual relationship between her agency-employer and the state does not make her a state actor for §1983 purposes, (b) that five tests demonstrate that she is not a state actor, and (c) that statutory protection led to the conclusion that every person filing a §51A is a state actor.
(a) Whether the contractual relationship makes Kern
a state actor.This issue proves that dismissal was improper. There are genuine issues of material fact in dispute, and only with those facts can the issue of law be ruled upon. Linnehan assumed that there was a contractual relationship between Kern's employer and DSS, if not the Commonwealth itself, because DSS has contracts with many such community service corporations. Discovery in this case would have both proven or disproven that assumed fact and have disclosed the basis of Kern's employment with the local entity: whether she was an independent contractor or an employee. Such a dispute makes dismissal premature.
Assuming arguendo, as Linnehan did, that the employer and DSS or the Commonwealth did have a contract, then DSS and the Commonwealth did insinuate themselves into an interdependence with Kern as a joint participant, making Kern, an agent, servant, and/or employee of the assumed contracting party, a state actor for §1983 purposes. See argument with citations, supra.
(b)Whether the five tests demonstrate that Kern is a state actor.
(1) The Fair Attribution Test. Kern's argument must fail because she misinterpreted Gonzalez-Morales. In fact, she only cited one statement without the many exceptions to that statement within Gonzalez-Morales. Essentially, that case held that a plaintiff can, indeed, sue under §1983 if the ex parte procedures violated due process as a matter of law. Id. at 50 n. 5. The Gonzalez court went on to describe in assiduous detail how the Gonzalezes "fail[ed] even to allege that the procedures actually used by the Puerto Rico court were constitutionally defective." Id.In contrast, Linnehan has at all times alleged that the DSS policy and procedures not only do not allow cross-examination of the accuser and have no safeguards in place to assure the reliability and validity of the hearsay-filled report, they also do not even allow the accused to know who the accuser is!
Moreover, in Linnehan's case, DSS and the Commonwealth never had jurisdiction of the issue: there was a case pending in Maine which Kern, DSS, and the Trial Court ignored. Ultimately, Linnehan was ordered to dismiss the Maine case.
Lastly, Linnehan disagrees with Kern's "floodgate" argument. One strong case holding a §51A reporter responsible for bringing a case without reasonable cause would put all the workers on immediate notice not to file frivolous and serious life-changing charges. For the first time, those people heretofore protected by the statute would have to be accountable for their actions as expected of the remainder of the populace.
(2) The Nexus/Joint Action Test. Linnehan incorporates hereunder this test by reference his argument under B(ii), supra.
Further, the instant case is distinguishable from Rockwell v. Cape Cod Hospital, 26 F.3d 254 (1st Cir. 1994), upon which Kern relies to support her analysis of this case under the nexus/joint action test. In Rockwell, fully discussed in Linnehan's appellate brief, the court found that no state action was taken under M.G.L. c. 123, §12. That section, unlike §51A of chapter 119, does not threaten either doctors or the hospital of being fined. Here, Kern was so threatened by §51A, which is, thereby that threat, the source of state compulsion. Thus, there is here sufficient joint participation, a sufficient nexus, to deem Kern a state actor.
(3) The Public Function Test. How Kern would have been performing a public function escapes Linnehan, but he never said she performed a public function. He contended that she was compelled under a threat of fine to act if and when she had reasonable cause to believe the child had suffered injury by abuse. Therefore, it can be argued that the state did not compel her to act de jure, but the practical effect of §51A is to create a compulsion to act de facto. Perkins v. Londonderry Basketball Club, 196 F.3d 13, 20 (1st Cir. (N.H.) 1999), where Perkins could have prevailed had she demonstrated that the Town "significantly encouraged LBC's promulgation of the same-sex tournament rule or its decision to ban the appellant from tourney participation." Id. That Linnehan's case does not pass the public function test does not preclude him from prevailing under any one of the other tests, which are not limited to only the five tests set out in Kern's brief.
And as above, the floodgates argument is meritless in this context.
(4) The State Compulsion Test. See B(iii)(b)(2) and (3), supra.
(5) The Symbiotic Relationship Test. See Linnehan's argument in item B(ii). Consider also Ponce v. Basketball Federation of the Commonwealth of Puerto Rico et al, 760 F.2d 375, 382 (1st Cir. 1985), which was cited by Kern in note 44 of her brief, and which adds another ingredient, to wit, whether the state profited from the discriminatory activity. Here, the DSS and the state do profit handsomely by receiving incentive bonuses under the Child Abuse Prevention and Treatment Act (CAPTA), 42 U.S.C. 5101, and other Acts. See Linnehan's appellate brief at 25-26.
(c) Whether the M.G.L. c. 119, §51A penalty provision
supports the use of §1983 as a vehicle for
Plaintiffs’ challenge.Rhode Island Association of Realtors, Inc. v. Sheldon Whitehouse, 199 F.3d 26 (1st Cir. 1999), supports Linnehan's contentions that by filing a report pursuant to §51A, Kern became a state actor. In that case, the court held that where there is a statute such as §51, which carries a penalty and "the credible threat that the state will enforce it, . . . there is ample state action to support the use of 42 U.S.C. §1983 as a vehicle for the [plaintiff's] challenge." Rhode Island, at 37, citing Lugar, at 937, for the proposition "that an alleged constitutional deprivation caused "by a rule of conduct imposed by the State' can satisfy the state action requirement."
C. As to Eli Newberger, Amy Tishelman, and the hospital.
i. Whether not having contact with the families after
allegedly performing a sexual-abuse evaluation
precludes deeming Newberger, Tishelman, and the
hospital state actors.
Factual error: On pages 4-5 and 10 of their appellate brief, Newberger, Tishelman, and the hospital aver that Newberger was contacted to perform a sexual-abuse evaluation of Linnehan's and Brown's children, that Newberger had no further contact with the families, and therefore that Newberger, Tishelman, and the hospital are not state actors.Actual fact: Regardless of whether Newberger was contacted in either Brown's or Linnehan's case by the state court, (1) Newberger admitted [App. II:533] that he knew that the team's reports would be used in court [App. III:715], (2) his team's report was docketed in the Juvenile Court Care & Protection case involving Linnehan's child and was used there against Linnehan [Supp.Rec.App.], and (3) DSS used the Newberger/Hospital team's report against Brown [App. III:690-691].
Argument: Assuming arguendo that Newberger, Tishelman, and the hospital were private parties, they became state actors where both DSS and the Trial Court "insinuated [themselves] into a position of interdependence with [Newberger, Tishelman, and the hospital, and they] must be recognized as [ ] joint participants in the challenged activity." Camilo-Robles, 151 F.3d at 10 (internal cite omitted). See discussion at P/As' brief at 37-38 and 29-30.
Further, as stated above, "[p]rivate persons, jointly engaged with state officials in the challenged action, are acting `under color' of law for purposes of Section 1983 actions." Dennis, 449 U.S. at 27-28.
Such joint participation as when a state and/or its agencies accepts or relies upon an ex parte filing such as a sexual-abuse evaluation, that participation constitutes "a sufficient nexus between state and individual to demonstrate state action and permit a sec. 1983 suit against the individual who sought the attachment." Cf.Gonzales-Morales, 221 F.3d at 49, 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").
The entwinement theory: Where there is an allocation of traditional state functions, to private entities, Newberger, Tishelman, and the hospital are state actors. Tomaiolo v. Malinoff, 281 F.3d 1, 2002 U.S. App. Lexis 2524 (1st Cir. (R.I.) 2002) ("entwinement" state action theory). To be deemed a state actor under the entwinement theory, there must be a direct or close enough nexus to the state to be claims under §1983 or a violation of constitutional rights. Id. at 8. The classic indicia of entwinement are financial support from the state to the defendants or an allocation of traditional state functions to the private entities. Id. at 9.5
5 Defendants Newberger, Tishelman, and the hospital cited Yeo v. Town of Lexington, 131 F.3d 241, 248-249 & n. 3 (1st Cir. 1997), cert. granted, 118 S.Ct. 2058 (1998), 141 L.Ed.2d 136 (1998). The proposition for which they are citing it is unclear. In Yeo, the District Court found that the high school newspaper and yearbook did not engage in state action. Id. The First Circuit initially reversed, finding that the newspaper's and yearbook's refusal to print Yeo's advertisements constituted state action. The en banc Court of Appeals reversed. The Supreme Court has granted certiorari.
The inducement theory: The inducement theory "assumes that state actors do not exercise their independent judgment in the face of requests, but merely act as puppets." Tomaiolo, at 10. For instance, if "because of the citizen's influence `the . . . police felt constrained to jail the plaintiff notwithstanding the absence of any legal basis to do so,'" there is state action. Id., quoting Wagenmann v. Adams, 829 F.2d 196, 210-211 (1st Cir. 1987).The inducement theory is "acceptable only on extreme facts." Tomaiolo, at 11. Those extreme facts are present here. See discussion below.
ii. Whether any one of the three tests demonstrate that
Newberger, Tishelman, and the hospital are state
actors.On pages 11-13 of their memorandum, Newberger, Tishelman, and the hospital contend that Linnehan and Brown have not satisfied three tests used to determine whether a defendant is a state actor or acted under the color of law: (1) the financial or regulatory nexus test, (2) public function test, (3) the symbiotic test involving the sharing of profits.
The Financial or Regulatory Nexus Test. Linnehan and Brown incorporate herein by reference their argument about this test under item C(i). It is a matter of public record that Newberger and his Children's Hospital team have a usual contractual relationship with the Commonwealth and its agencies. Newberger himself has testified as an expert on behalf of the Commonwealth in, at the very least, the following cases: Adoption of Larry, 434 Mass. 456, 750 N.E.2d 475 (2001); Adoption of Ricardo, 50 Mass.App.Ct. 1101, 735 N.E.2d 1276 (2000); Adoption of Iris, 43 Mass.App.Ct. 95, 680 N.E.2d 1188 (1997); Com. v. Violet Amirault (consolidated with Com. v. Gerald Amirault), 424 Mass. 618, 677 N.E.2d 652 (1997); Com. v. Day, 409 Mass. 719, 569 N.E.2d 397 (1991); Com. v. Gerald Amirault, 404 Mass. 221, 535 N.E.2d 193 (1989); Com. v. Proulx, 23 Mass.App.Ct. 985, 504 N.E.2d 365 (1987); Com. v. Hutchinson, 395 Mass. 568, 481 N.E.2d 188 (1985); Custody of Two Minors, 19 Mass.App.Ct. 552, 476 N.E.2d 235 (1985); Com. v. Woodward, 427 Mass. 659 (1998).
It is unknown by Linnehan and Brown the total number of cases on which he worked and which were not appealed or in which decisions his name was simply not memorialized.
The abundance of cases in which Children's Hospital has allowed its staff to be experts is equally as impressive. Another member of Newberger's team, not one of the defendants here because she never signed either report, is Andrea van Deven. Although her name appeared only in two appellate cases,6 she has appeared in many other cases for which there are opinions but in which her name simply was not written: e.g., the case underlying Com. v. Souza, 39 Mass.App.Ct. 103 (1995), where she testified on behalf of the Commonwealth to twitching anuses and the size of an anus that has been entered for sexual purposes.
6 Com.v. Quincy Q., 434 Mass. 859 (2001), and Com. v. Allen, 40 Mass.App.Ct. 458 (1996).Newberger's wife, Carolyn, similarly associated with Children's Hospital, has also appeared as an expert on behalf of the Commonwealth; e.g., Adoption of Ramon, 41 Mass.App.Ct. 709 (1996).Newberger's team is, clearly, a cost center for Children's Hospital. Considerable financial gain and benefit is accrued by both the individual staffers and the hospital.
It is not known how much money Newberger, Tishelman, and the hospital have earned testifying on behalf of the Commonwealth.7 Nevertheless, it is clear from the public records alone that the Commonwealth is a source of considerable income for Newberger, team-member Tishelman, and the hospital.
7 As an individual, Newberger has testified that he has received between $475 and $750 per hour for his so-called expert services.
(2) The Public Function Test. When they are duly court-appointed, Newberger and his team and the hospital's work is deemed to be a quasijudicial function, a substitute for a public function which the judiciary is mandated to do. Linnehan and Brown object, of course, to the bestowing of quasijudicial immunity, as argued in their brief in chief, but contend that if courts deem the work of Newberger, Tishelman, and the hospital to be quasijudicial when they are duly appointed, their work must also be deemed a public function even when they are not officially and duly appointed.(3) The Symbiotic Relationship Test. See Linnehan's argument in item C(i). Consider also Ponce, 760 F.2d at 382, which was cited by Newberger, Tishelman, and the hospital on page 11 of their brief, and which adds another ingredient, to wit, whether the state profited from the discriminatory activity. Here, the state benefits by having the work done -- despite Linnehan and Brown's objection to the quality -- and paid for by entities other than the judiciary's budget.
D. As to John "Jack" McCarthy.
Factual error: On pages 7 and 9-13 of his appellate brief, McCarthy contends that Linnehan accuses him only of negligence.i. Whether immunity is available to McCarthy as a
defense.Actual fact: Linnehan accused McCarthy of also violating Linnehan's civil rights and of incompetence, which precludes the defense of any type of immunity.
The crux of Linnehan's complaint against McCarthy is that McCarthy (1) was appointed to be the child's therapist, (2) saw Brenden only one time, (3) met alone almost two dozen times with the exotic and very beautiful mother,8 who had already conceived twice out of wedlock,9
8On page 17 of his brief, McCarthy identifies Robyn, the mother, as Linnehan's ex-wife. This is error. Linnehan and Robyn were never wed. Because he refused to wed her was the root of Robyn's motives to bring the false allegation. The immediate reason was to stop the ongoing mediation in Maine for custody and visitation. She brought Brenden to Eileen Kern within a day of the mediation in Maine going sour for her.(4) never met with Linnehan, and (5) without any reliable basis, recommended that Linnehan be denied visitation, (6) relied on Newberger's team deficient report, did no therapy, but charged Linnehan directly and indirectly through Linnehan's insurance, and (7) was incompetent, and (8) while committing a fraud upon Linnehan, deprived him of his constitutional rights, to wit, a parental relationship with his son. It is unknown whether McCarthy filed reports with the Probation Office in either the Juvenile Court or the Probate & Family Court.9 After leaving Linnehan, the mother soon married a widower, whom she also caused a false report of child sexual abuse to be made to DSS. It was during that seven-year divorce that she met McCarthy, also a new widower. McCarthy neither considered nor ever reported that the mother was not living with her then-husband, was going through an acrimonious, tumultous divorce, and that the child's problems, if, indeed, there were any, more than likely was as a result of that turmoil.
To deprive a man unjustly of a meaningful, loving relationship with his son offends the substantive components of the due process clause. Cf. Manzano v. South Dakota Department of Social Services, 60 F.3d 505, 513 (8th Cir. 1995).
The thread through cases of this type -- cases brought against so-called mental-health workers -- runs also through the cases McCarthy cites10: that thread is one of allowing those defendants not to be accountable for the mental, emotional, or physical damage they cause, and thus violates article XI of the Declaration of Rights of the Massachusetts Constitution, which states, "Every subject of the Commonwealth ought to find a remedy, by having recurs to the laws, for all injuries or wrongs which he may receive in his person, property, or character. . . ." None of the cases cited by McCarthy meet the standard of that article.
10 Some of the cases cited were Watterson v. Page, 987 F.2d 1 ((1st Cir. (N.H.) 1993); Manzano, supra; Brown v. Ives, 127 F.3d 209 (1st Cir. (Maine) 1997); Frazier v. Bailey, 957 F.2d 920, 929 (1st Cir. (Mass.),1992). The name "Frazier" appears alternatively as "Fraser." . All were distinguished from the instant case in Linnehan's Opposition to McCarthy' s Motion to Dismiss in the District Court. See App. III:863-865. Linnehan incorporates herein by reference the arguments he presented there.
a. Whether McCarthy was incompetent.
Factual error: On page 10 of his brief, McCarthy contends that Brenden was traumatized when a prior therapist attempted to reconcile him with Linnehan and that his observations of the child were consistent with a history of abuse.Actual fact: Remarkably McCarthy (1) saw Brenden only one time, (2) relied on information in a stale report, (3) could not possibly have come to any valid conclusions after seeing Brenden only that one time, (4) made no differential diagnosis (the child, who, had not seen his father for seven years and clearly could have been upset by whatever his mother had told him allegedly about his father or by losing his stepfather11, and (5) had his own agenda.
11The child’s mother was in the middle of a stormy divorce at that time. In toto, her divorce took seven years: from 1994 through November 2001.
Not only was Linnehan denied an opportunity to confront McCarthy, he was also not allowed to examine the child. Assuming arguendo that McCarthy would be entitled to qualified immunity, where there is also genuine issues of material fact, Linnehan would be entitled, at the very least, to conduct discovery and examine McCarthy. See Linnehan's App. Brief, at issues 9 and 10, for citations.b. Where art. 5, Declaration of Rights, abrogates the
doctrine of absolute judicial and quasijudicial
immunity, McCarthy is not entitled to either
quasijudicial or even qualified immunity.
Factual error: On pages 13-20, McCarthy contends that he is entitled to qualified or absolute immunity.
Argument: Linnehan incorporates herein by reference his argument presented App. III:863ff. See also arguments at Issue 8 below. Further,
. . . state-conferred immunity cannot shield a state actor from liability under section 1983. See Martinez v. California, 444 U.S. 277, 284 n. 8 (1980) ("Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. sec. 1983 ... cannot be immunized by state law.") [cite omitted]. Indeed, a regime that allowed a state immunity defense to trump the imposition of liability under section 1983 would emasculate the federal statute. Seeid. We therefore reject the proposition that absolute immunity entitled the psychiatrists to summary judgment.
Camilo-Robles, 151 F.3d at 10 (nonemployee contract psychiatrists were not entitled to absolute or qualified immunity).
ii. Whether as a private party, McCarthy is subject to
liability under §1983..
Factual error: On pages 7 and 21-23 of his brief, McCarthy contends a private party is not subject to liability under sec. 1983.Actual fact: Linnehan assumed that the stipulation referred to on page 6 of McCarthy's brief had been filed with the court (a term and condition of the stipulation) and had been approved. Linnehan later learned that the report was not docketed and might not have been filed.12 What is clear is that the report was known by the state court -- likely in oral argument by the child's or mother's counsel -- and the state court adopted McCarthy's recommendation.
12 It was impossible to get the Juvenile Court docket. Linnehan's counsel received it only as a result of extraordinary circumstances.Therefore, whether McCarthy was duly appointed is irrelevant for the following reasons:(1) Because Linnehan had been denied visitation based on McCarthy's report, the state had "insinuated itself into a position of interdependence with [McCarthy and [ ] must be recognized as a joint participant in the challenged activity." Camilo-Robles, 151 F.3d at 10. See P/As' brief at 37-38 and 29-30.
And (2) "[p]rivate persons, jointly engaged with state officials in the challenged action, are acting `under color' of law for purposes of Section 1983 actions." Dennis, 449 U.S. at 27-28. Thus, the state became a joint participant when it relied on McCarthy's report to deny Linnehan visitation.
Such joint participation constitutes "a sufficient nexus between state and individual to demonstrate state action and permit[s] a sec. 1983 suit against the individual" who participated in the process. Cf. Gonzales-Morales, 221 F.3d at 49, 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").
E. As to DSS and the Trial Courti. Whether DSS and the Trial Court are persons
subject to §1983.
Aside from the fact that both Linnehan and Brown argued in the District Court that neither the DSS nor the Trial Court had jurisdiction over them when their children were taken into Massachusetts and the government stepped into the fray [App. I:253-261, generally 245-282], DSS and the Trial Court argue as they did below, that the Commonwealth and its agencies are not persons susceptible to suit under §1983. Their argument is contrary to the mandate of art. 5 of the Massachusetts Declaration of Rights, that the legislative, executive, and judicial branches of government be accountable at all times to the people. A grant of immunity or determination that they are not "persons" under a federal statute expressly passed to thwart unlawful behavior by state actors is an anathema to the Declaration of Rights. Such a ruling must not be countenanced. It would be intolerable and unacceptable.Interesting in this context is Woodbridge v. Worcester State Hospital, 384 Mass. 38 (1981), cited by DSS and the Trial Court. In that case, the court was interpreting sovereign immunity vis-á-vis M.G.L. c, 123 §23, but never reached the issue of the constitutional mandate: "In sum, we hold only that G.L. c. 123 §23, contains no waiver of sovereign immunity, and therefore affirm the judgment dismissing this action as to the Commonwealth and the hospital." Id. at 45.
Ironically, however, given that that same court wrote that "rules of construction governing statutory waivers of sovereign immunity are stringent" [id. at 42], it is curious that it never considered the express mandate of accountability in art. 5, Declaration of Rights.
More than just curious, however, is the courts’ avoiding of the purposes of §1983 and the Fourteenth Amendment. It is as if we are in Alice’s Wonderland, where "congress" speaks in riddles:
Section 1983 provides a federal forum to remedy many deprivations of civil liberties, . . . The Eleventh Amendment bars such suits unless the State has waived its immunity, Welch v. Texas Dept. of Highways and Public Transportation, 483 U.S. 468, 472-473 (1987) (plurality opinion), or unless Congress has exercised its undoubted power under §5 of the Fourteenth Amendment to override that immunity. . . .
Will v Michigan, 491 U.S. 58, 66 (1989). The ratified prong of the Eleventh Amendment does not affect suits by citizens against their own State, and Congress exercised none of its power to put the second prong into effect. There is more.
Given that a principal purpose behind the enactment of §1983 was to provide a federal forum for civil rights claims, and that Congress did not provide such a federal forum for civil rights claims against States, . . .
Id. But Congress did create a federal forum – through the Fourteenth Amendment – in order to allow civil rights claimants through §1983 to avoid state courts. Id.This Court of Appeals tried to restore logic in Camilo-Robles, supra:
. . . state-conferred immunity cannot shield a state actor from liability under section 1983. See Martinez v. California, 444 U.S. 277, 284 n. 8 (1980) ("Conduct by persons acting under color of state law which is wrongful under 42 U.S.C. sec. 1983 ... cannot be immunized by state law.") [cite omitted]. Indeed, a regime that allowed a state immunity defense to trump the imposition of liability under section 1983 would emasculate the federal statute. See id. We therefore reject the proposition that absolute immunity entitled the psychiatrists to summary judgment.
Camilo-Robles, 151 F.3d at 10 (nonemployee contract psychiatrists were not entitled to absolute or qualified immunity).Further, where sovereign immunity is unconstitutional in Massachusetts, thanks to Article 5 of the Massachusetts Declaration of Rights, and "a principal purpose behind the enactment of §1983 was to provide a federal forum for civil rights claims" [Will, supra], Massachusetts must be found a "person" under §§1983, 1985(3), 1986, and 1988. Otherwise the purpose is cruelly thwarted.
Despite the finding in Will that a State is not a "person" within the meaning of 42 U.S.C. §1983 when applying the second prong of the Eleventh Amendment, the application of sovereign immunity in cases between Massachusetts parties is, Plaintiffs contend, unconstitutional.
The basis of their contention is, as they stated in their briefs, (a) that Article 5 of the Massachusetts Declaration of Rights demands accountability from the state and the three branches of government and (b) that there was never a legislatively enacted amendment to the Constitution of the Commonwealth of Massachusetts repealing that article, Article 5 of the Declaration of Rights, which guaranteed accountability by all three branches of the government to the people.13
13 The application of the Eleventh Amendment to Massachusetts cases in federal courts could not have been contemplated by the drafters of that constitutional article.Therefore, DSS, the Trial Court, and/or the Commonwealth cannot invoke now, in federal or state court, sovereign immunity. It follows therefrom that each of the triumvirate must be found a "person" in the instant case . . . even if only to fulfill that constitutional guarantee of accountability.As the Court wrote post-Pennhurst in Will, "This does not mean ... that we think that the scope of the Eleventh Amendment and the scope of section 1983 are not separate issues. Certainly they are." Id. at 66. "The inference must be drawn, it is urged, that Congress must have intended to subject the States themselves toiability." Id. at 68. So the quantum leap from that statement immediately to "But the intent of Congress to provide a remedy for unconstitutional state action does not without more include the sovereign States among those persons against whom section 1983 would lie" [id.] does not pass the sniff test.
Plaintiffs, of course, are in agreement with the "Dictionary Act" argument set forth by the minority opinion in Will that the words "bodies politic and corporate" – before and after the time the Dictionary Act and section 1983 were passed -- were understood to include the States. Will, at 69-70 (majority opinion), 69 notes 8 and 9, and 73-77 (Justice Brennan, with whom Justices Marshall, Blackmun, and Stevens joined).
Plaintiffs assert, also, that the Commonwealth is a "person" under §§1983, 1985(3), 1986, and 1988 under Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 717 (1978), where the Court admitted that the "Senate Report stat[ed] that liability may be imposed [under sec. 1988] `whether or not the agency or government is a named party.’"
2.Whether Plaintiffs are suing the hospital for its own acts or under a theory of respondeat superior.
Factual error: On pages 13-16 of its brief, the hospital contends that there is no respondeat superior under 42 U.S.C. §1983 because there are no allegations that the hospital itself engaged in any wrongdoing.
Before the alleged evaluations were performed by Newberger and his team, Brown and Linnehan had to produce their insurance cards and sign admission forms and contracts with the hospital [Complaint, ¶¶39 and 131]. The hospital sent bills to Brown and Linnehan. They paid directly and/or indirectly through their insurance or benefits programs [Complaint, ¶225]. The hospital cannot hide behind its amorphous quality to escape liability, given that its bills and admission forms and contracts are not amorphous. It knew or should have known what services it was rendering and profiting from and the quality, or lack thereof, of those services.
Argument: Brown and Linnehan contend that their case is distinguishable from Rockwell v. Cape Cod Hospital, 26 F.3d 254 (1st Cir. 1994) in that they -- although under duress -- signed the admissions forms and other papers, in contrast to (1) Rockwell being involuntary admitted to the Cape Cod Hospital and having had no existing court action and (2) there having been no direct interaction between Cape Cod Hospital and the Commonwealth or its judiciary.
Harvey v. Harvey, 949 F.2d 1127 (11th Cir. 1992), presents a situation similar to Rockwell.
In Iskander v. VIllage of Forest Park, 690 F.2d 126 (7th Cir. 1982), state action for §1983 purposes was found against several of the defendants, including the village. No state action was found against Zayre's Department Store (after the jury verdict and award of money damages against Zayre's) because (1) its shoplifting procedures were not "impermissible policy" or "constitutionally forbidden" and (2) even assuming that Iskander's "detention by the store detective was without probable cause and invaded her civil rights, the single act of unconstitutional conduct does not support the inference that the conduct was pursuant to an impermissible Zayre policy.
In other words, the employer, Zayre's, was not off the proverbial hook because of the respondeat superior doctrine, but was let off that hook for other reasons.
Here, Children's Hospital has no other reason: it is continuously doing sexual abuse evaluations: doing them IS its business!
In Powell v. Shopco Laurel Co., 678 F.2d 504 (4th Cir. 1982), the defendant mall-owner did not "`cause'" the deprivation of Powell's federal rights. Id. at 506, quoting Monell, 436 U.S. at 691-692, 98 S.Ct. at 2037. In Powell, there is dicta inferring that a plaintiff would be able to sue a superior entity if liability was not laid on the superior solely on the principles of respondeat superior. Powell, at 505.
Here, Linnehan and Brown are suing Children's Hospital for its active participation in depriving them their federal rights: the hospital even charged Linnehan and Brown for its alleged services!
Under Monell and its progeny, like municipal corporations, private corporations are "liable under sec. 1983 only when an official policy or custom of the corporation causes the alleged deprivation of federal rights." Austin v. Paramount Parks, Inc., 195 F.3d 715, 728 (4th Cir. 1999), and cases gathered. 14
14 Cited by Newberger, Tishelman and the hospital, Jones v. Preuit & Mauldin, has generated no fewer than eight opinions, the majority concerned with the statute of limitations. One is 851 F.2d 1321 (11th Cir. 1988) (en banc), cert. granted, judgment vacated and case remanded 489 U.S. 1002 (February 21 1989), motion of respondents denied 489 U.S. 1002 (May 1, 1989).
In Jones, 876 F.2d 1480, while iterating that the United States Supreme Court held that in Alabama the statute of limitations for sec. 1983 claims should be 6 years and remanded the case, The Appeals Court of Alabama never reached the issue of respondeat superior.
And in 851 F.2d 1321, cited by Newberger, Tishelman, and the hospital, the first line reads, "Given our disposition of the case, we need not address P&M's arguments regarding . . . respondeat superior." Jones, 851 F.2d at 1328 n. 12. That which the court did not find was that Jones was not able to establish the crucial element of causation. Id. at 1331 (Tjoflat, J. Specially Concurring).
3. ImmunityA. Whether Newberger, Tishelman, and the hospitalFactual error: On page 16 of their appellate brief, Newberger, Tishelman, and the hospital contend that were they to be deemed state actors, they would be entitled to quasijudicial immunity. Linnehan and Brown oppose that proposition and incorporate herein by reference their argument in their appellate brief about this issue.
are precluded from having immunity as a defense.
4. Whether Linnehan’s and Brown’s claims against Newberger, Tishelman, and the hospital are time-barred.
Factual error: On pages 16 and 17 of Newberger, Tishelman, and the hospital's appellate brief, those defendants contend that Linnehan's and Brown's claims are time-barred. The District Court did not reach the statute of limitations issue and Newberger, Tishelman, and the hospital did not appeal the failure of the court to do so. Neither did Linnehan and Brown, because the action was dismissed on other grounds.
Actual fact: Linnehan and Brown did, however, argue the statute of limitations issue in their briefs below in opposition to the divers motions to dismiss and for judgments on the pleadings. They incorporate those arguments by reference as if set forth herein [App. III:708ff. (Linn.’s affidavit); II:337ff.; II:442ff.; II:547ff.].
Linnehan did have a statute of limitations problem but argued Riley v. Presnell, 409 Mass. 239 (1991), and Armstrong v. Lamy, 938 F.Supp. 1018 (1996) and had sufficient facts to support those arguments.
Brown did not have a statute of limitations problem. Newberger tried to alter dates. Brown proved Newberger's assertion of relevant dates to be untrue.
5. Whether the lower court erred in removing Newberger’s default.
Factual error: On pages 9 and 18 of Newberger’s appellate brief, Newberger contends that the District Court did not err in removing his default.
Actual fact: The argument as expressed by Newberger is meritless. Newberger simply had absolutely no credible excuse for failing to file a timely responsive pleading. The excuses he had were based on reasons proved by documentary evidence to be falsities. The lower court gave no reason based on law for removing the default. The citing of Little v. Dooyang, 147 F.3d 47 (1st Cir. 1998), was simply to create an opaque smokescreen between a clear rule of procedure which requires a reasonable excuse for a default and the actual fact that Newberger simply did not have one.
6. Whether Linnehan failed to raise the §1983 issue in the District Court.
Factual error: On page 4 of her memorandum, Kern contends that Linnehan failed to raise the §1983 issue in the District Court, and on page 5, that he referenced §1983 "but only vaguely and with no supporting facts."
Actual fact: This is incorrect: Linnehan included Kern in Count 4 of the Complaint. See ¶182 of the Complaint [Appendix I:41]
In addition to the supporting facts in the Complaint, facts specific to Kern are in Linnehan's opposition to Kern's Motion for Judgment on the Pleadings [Appendix II:444-445, and 448].
Significantly, Beaulieu v. United States, 865 F.2d 1351 (1st Cir. 1989), which Kern cites in notes 8 and 12 in her brief for propositions about notice pleading, does not stand for the propositions cited. Beaulieu's case was dismissed not because of her notice pleading, as Kern contends, but because she failed to comply with a magistrate's order to supply the "`details of the alleged violations of the Privacy Act.'" Id. at 1352. "The alleged violations concerned office gossip, rather than records protected by the Privacy Act." Id.
In contrast, Linnehan's case is not made up of gossip. The facts in the Complaint are clear: there was a Maine action for paternity and custody pending when the mother took off to Massachusetts with the child. It took Linnehan around 10 months to find them. Soon after he did, he moved to be near his son. Then the mother and he traveled to Maine together for mediation. Within a day of the mediation going against her, she brought the child to Kern, who immediately filed the §51A report.
Clearly, Kern reacted in a knee-jerk fashion with disregard of the order in Maine either because she was incompetent or because she had her own radical feminist, discriminatory agenda.
Once Kern espoused her unreasonable belief that she had reasonable cause to believe Linnehan had abused his son, then DSS and the Trial Court, neither of which had jurisdiction to hear the case for no emergency existed, insinuated itself into a position of interdependence with Kern in her challenged activity, and began denying Linnehan his rights to due process and el protection of the laws. In all these years, he has never had the opportunity to cross-examine his accusers or present evidence on his own behalf.
7. Whether the District Court erred in not distinguishing between a motion to dismiss and a motion for a judgment on the pleadings.
Factual error: On page 7 of her appellate brief, Fyfe contends that that the court acted properly when it allowed her motion for judgment on the pleading.
Argument: Significantly, Fyfe fails to address the difference between a motion to dismiss and a motion for judgment on the pleadings. Rather than repeat that which he argued below, Linnehan incorporates herein his argument in Issue 1 of his Opposition to Fyfe's Motion for Judgment on the Pleadings [Fyfe's Mot., App. II:321-336 and Linnehan's Opp., App. II:337-357].
8.Whether Linnehan waived his argument that art. 5 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts abrogates the doctrine of absolute judicial and quasijudicial immunity.
Factual error: On page 16 of her brief, Fyfe contends that Linnehan waived his argument that art. 5 of the Declaration of Rights of the Constitution of the Commonwealth of Massachusetts abrogates the doctrine of absolute judicial and quasijudicial immunity. That is not quite accurate: the issues of abrogation of immunity by articles 5 and 11 of the Declaration of Rights of Massachusetts and inapplicability of the Eleventh Amendment to the U.S. Constitution appear in the Appendix at pages I:246, 248, 261-266, and 275-276. And Linnehan briefly mentioned the supremacy clause at Appendix, III:931, although in a context different than that in which he mentioned it in his appellate brief.
Article 5 of the Declaration of Rights of Massachusetts forbids the Commonwealth from allowing the three branches of the state government from hiding behind immunity. 15
15 Linnehan incorporates herein by reference his argument presented in his Opposition to McCarthy's Motion to Dismiss [App. III:863ff.]Further, Linnehan, in the court below, had assumed that it was so clear that Fyfe, an unlicensed caseworker who had not been duly appointed, was not entitled to immunity that he did not see the need to take the immunity issue to the level he took it to in his appellate brief; nevertheless, his appellate argument is simply a detailed extension of what he had raised below.And, in his oppositions to motions to dismiss and for judgment on the pleadings, Linnehan also addressed the immunity issues from a "traditional" legal perspective in response to the "traditional" legal arguments levied by the defendants.
Of course, once Fyfe knew of the constitutional arguments that Linnehan set forth in his Opposition to the Judgment on the Pleadings, Fyfe could have supplemented her legal argument.
9. DSS and the Trial Court – and the other defendants -- failed to address the Plaintiffs’ argument regarding the two prongs of the Eleventh Amendment: the one properly ratified by Congress and the other judicially created without ratification by Congress.
Factual error: On page 8-9 of the DSS/Trial Court brief, they assiduously avoid mentioning the second prong of the Eleventh Amendment and speak of that immunity as if Congress had a hand in its making,
Actual fact: It didn’t. Congress was not at that party. Congress was not even invited to that party. Congress never formed any intent to amend the Eleventh Amendment. Congress only had the intent to give the People the right to petition to redress constitutional deprivations by their governments. And Congress did that by ratifying the Fourteenth Amendment.
Another error by DSS and Trial Court also appears on page 9 of their brief: that is the assertion that the States had "paramount Constitutional immunity." In Massachusetts, the opposite is true. Massachusetts’ Constitution requires accountability. Immunity precludes accountability. Immunity is violative of articles 5 and 11 of the Massachusetts Declaration of Rights.
Still another error: their assumption on pages 9-10 that the governmental wrongs against Brown and Linnehan are not continuing. They are. The men have not seen their children for years . . . because DSS so wrongly recommended and the Trial Court so wrongly and arbitrarily decided.
<>DSS and the Trial Court further claim on page 10 that a "single clear allegation" is insufficient as a basis for a claim. Logically that position is untenable. The power of both entities is so strong, so pervasive, so long-lasting that one severe infraction of power, as occurred in the cases of these men, is enough to last a lifetime.
10. The RICO action.Although Linnehan did not discuss the RICO count in his appellate brief, on pages 23-26, McCarthy discusses the RICO action, and on pages 5-6, DSS and the Trial Court discuss it. The latter call attention to 18 U.S.C. §1961(2), in which the "persons" vulnerable to a RICO claim are defined both specifically and broadly -- "or other legal entity – and does not specifically preclude the Commonwealth or its agents, servants, and/or employees."
As to DSS and the Trial Court’s argument that a "person" and the "enterprise" for §1983 purposes must be distinct and separate entities: Given that the DSS and the Trial Court are factually different entities – their governance; one is an agency; the other, the judicial branch of the government; one has alternate sources of revenue (state funding as well as bonus incentives from the federal government and revenue from subcontractors); the other, not as blessed; and so on – they are for all practical purposes different entities which are distinct and separate from the "Commonwealth" . . . a difference which Linnehan and Brown asserted from the outset in the lower court. It is because payment of potential award of damages would be from the Commonwealth’s coffers that their counsel has referred to the two separate entities as is they were one: the Commonwealth.
An analogy may be drawn to the facts in United States v. London, 66 F.3d 1227 (1st Cir. 1995), in which London’s "double-duty" argument was defeated. For example,
His argument overlooks the fact that M & L, though a sole
proprietorship, had at least one employee other than himself, and the fact that Heller's was incorporated and had several employees other than himself. No more is required to establish the separateness required by RICO. As Judge Posner explained in responding to a similar argument: If the one-man band incorporates, it gets some legal protections from the corporate form, such as limited liability; and it is just this sort of legal
shield for illegal activity that RICO tries to pierce. A one-man band that does not incorporate, that merely operates as a proprietorship, gains no legal protections from the form in which it has chosen to do business; the man and the proprietorship really are the same entity in law and fact. But if the man has employees or associates, the enterprise is distinct from him, and it then makes no difference, so far as we can see, what legal form the enterprise takes. The only important thing is that it be either formally (as when there is incorporation) or practically (as when there are people besides the proprietor working in the organization) separable from the individual.
London, 66 F.3d at versuslaw ¶¶ 119 and 120, citing McCullough v. Suter, 757 F.2d 142, 144 (7th Cir. 1985). If we equate the Commonwealth with M&L and the Commonwealth’s agencies and departments, for instance, with London’s few employees, there is established sufficient separateness to meet the requirement of RICO.11. Whether the court can exercise supplemental jurisdiction.
On pages 26-27, McCarthy discusses supplemental jurisdiction.
Should the lower court's dismissal of Linnehan and Brown's federal question claims be reversed, there would be no basis for the court to not to hear Linnehan and Brown's state-law actions.
Respectfully submitted,Barbara C. Johnson, Esq.
APPELLANTS BROWN AND LINNEHAN,
By their attorney,
Barbara C. Johnson
6 Appletree Lane
Andover, MA 01810-4102
978-474-0833
CERTIFICATE OF COMPLIANCEI, Barbara C. Johnson, hereby certify that above pleading (excluding certifications and signature sections) is 8,453 words and 800 lines in length, as measured by MSWord 97, within the limits of F.R.A.P. (32)(a)(7).
_________________________
7 April 2002 Barbara C. Johnson, Esq.
CERTIFICATE OF SERVICE