http://www.laborlawtalk.com/showthread.php?t=103474&page=1
Plaintiff was microchipped by DEA for tracking purposes since 1996.
When plaintiff was taken custody by law enforcers, he was asked to sign
documents permitting authority to surgical removal of the chips.
Could be interesting to some of you.
(2002) Implanted Microchip Lawsuit
42. Defendants GAMMEL, FARLEY, ROBERTO, KELLY, PETERSON, DESMOND,
CUNIFF, SOILES, QUIGLEY and several JOHN DOES AND JANE DOES, took part
in the arrest of Plaintiff stated in paragraphs number forty (40) and
forty-one (41) above.
43. While in the custody of agents, Plaintiff was approached by
Defendant ROBERTO, who attempted to gain Plaintiff's authorization and
signature on a document.
44. The document stated in paragraph forty-three (43) above was
purporting to be an "authorization" for the surgical removal of an
electronic device from Plaintiff's body.
45. Defendant [**9] ROBERTO, informed Plaintiff, that Plaintiff had
been implanted with an "a microchip tracking device" and law
enforcement (Drug Enforcement Agency/Federal Bureau Investigation) had
been tracing Plaintiff since on or about November 25, 1996.
46. Defendant ROBERTO, further stated to Plaintiff that it was on "on
loan" to Drug Enforcement Agency from the Central Intelligence Agency
(C.I.A.) and was a sophisticated state of the art piece of equipment,
cost a lot of money. Must be returned to the CIA.
47. Defendant ROBERTO, assured Plaintiff that he (Plaintiff) would be
released on bail if Plaintiff would [*249] sign documents and
consent to surgical removal of device.
48. Plaintiff refused to sign the consent forms. Defendant DESMOND
stated "Nobody will ever believe we did this".
49. Plaintiff was transported from Logan International Airport to the
Drug Enforcement Agency's New England Field Division Office (Field
Office) in Boston, Massachusetts.
50. While being transported from the Logan International Airport to
the field office, Defendant's FARLEY, and QUIGLEY, continued to entice
Plaintiff to consent to the surgical [**10] removal of the device.
++++++++++++++++++++++++
VINCENT MICHAEL MARINO, a/k/a Vincent Michael Portalla, Plaintiff v.
JOHN GAMMEL, FBI Agent, DAMIEN FARLEY, DEA Agent, ANTHONY ROBERTO, DEA
Agent, VINCENT KELLY, DEA Agent, NORMAN PETERSON, DEA Agent, JOSEPH
DESMOND, DEA Agent, MICHAEL CUNIFF, DEA Agent, JAMES SOILES, DEA,
Agent, THOMAS QUIGLEY, Massachusetts State Police, and JOHN AND JANE
DOES 1-20, Defendants
CIVIL ACTION NO. 01-10116-REK
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
191 F. Supp. 2d 243; 2002 U.S. Dist. LEXIS 4471
March 5, 2002, Decided
DISPOSITION: Defendants' motions to dismiss were granted, in part.
Plaintiff's discovery motions were denied. Plaintiff's other motions
were denied or dismissed.
COUNSEL: [**1] VINCENT MICHAEL MARINO aka Vincent Michael Portalla,
Plaintiff, Pro se, Atlanta, GA.
For JOHN GAMMEL, FBI Agent, DAMIEN FARLEY, DEA Agent, ANTHONY ROBERTO,
DEA Agent, VINCENT KELLY, DEA Agent, JOSEPH DESMOND, DEA Agent,
MICHAEL CUNIFF, DEA Agent, JAMES SOILES, DEA Agent, THOMAS QUIGLEY,
Massachusetts State Police, JOHN AND JANE DOES 1-20, Defendants: Anita
Johnson, United States Attorney's Office, Boston, MA.
For THOMAS QUIGLEY, Massachusetts State Police, Defendant: Marini
Torres-Benson, Office of the Attorney General, Boston, MA.
JUDGES: Robert E. Keeton, United States District Judge.
OPINIONBY: Robert E. Keeton
OPINION: [*245] Memorandum and Order
March 5, 2002
I. Pending Matters
Pending for decision are the matters associated with the following
filings:
(1) Federal Defendants' Motion to Dismiss (Docket No. 21, filed July
10, 2001), with accompanying memorandum in support (Docket No. 22,
filed July 10, 2001);
(2) Thomas Quigley's Motion to Dismiss or for Judgment on the
Pleadings (Docket No. 77, filed November 7, 2001), with accompanying
memorandum in support (Docket No. 18, filed June 12, 2001);
[*246] (3) Plaintiff's Response in Opposition to Motion to Dismiss
(Docket No. 50, filed November 2, 2001); [**2]
(4) Plaintiff's Motion for Disclosure and Production of Newly
Discovered Documents Pursuant to F.R.C.P. Rule 26 and Rule 34 (Docket
No. 53, filed December 3, 2001);
(5) Plaintiff's Motion for Disclosure and Production of Newly
Discovered Documents Pursuant to F.R.C.P. Rule 26 and Rule 34 (Docket
No. 56, filed December 6, 2001);
(6) Plaintiff's Motion to Clarify Medical Term Artifact (Docket No.
57, filed December 20, 2001);
(7) Plaintiff's Motion to Offer Caselaw to Prohibit Defense Attorneys
from Protection of Defendants who Continue to Conspire Together in
Furtherance of Conspiracy and Conspiracy of Silence to Cover Up
Discovery (Docket No. 59, filed January 7, 2002);
(8) Plaintiff's Notice via Sharing an Attorney with Original
Defendants and Also via Identify of Interest with Originally Named
Defendants (Docket No. 60, filed January 7, 2002);
(9) Plaintiff's Motion of Disclosure and Production of Newly
Discovered Documents re: United States Patent Number: 5,629,678 of
Human Implants of Tracking Devices and Other State of the Art
Capabilities, All Being Disclosed Pursuant to Fed. R. Civ. P. Rule 26
and Rule 34 (Docket No. 61, filed January 7, 2002);
(10) Plaintiff's Response [**3] in Opposition to Motion to Dismiss
(Docket No. 64, filed January 10, 2002);
(11) Plaintiff's Motion to Clarify Medical Term Artifact (Docket No.
62, filed January 10, 2002);
(12) Defendants' Reply to Marino's Opposition to Dismissal (Docket No.
71, filed January 24, 2002); and
(13) Federal Defendants' Motion to Dismiss (Docket No. 72, filed
February 7, 2002), with accompanying memorandum in support (Docket No.
73, filed February 7, 2002);
(14) Plaintiff's Additional Memorandum of Law in Support of Motion to
Dismiss (Docket No. 75, filed February 19, 2002); and
(15) Plaintiff's Motion of Newly Discovered Evidence Offered Pursuant
to Fed. R. Civ. P. Rule 26 and Rule 34 (Docket No. 76, filed February
19, 2002).
II. Facts Alleged in the Complaint
The state and federal officials named as defendants in this case have
all moved for dismissal pursuant to various subsections of Rule 12 of
the Federal Rules of Civil Procedure. I assume all well-pleaded facts
are as alleged in the complaint, and draw all-reasonable inferences in
favor of the plaintiff. See Washington Legal Foundation v.
Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir.1993).
The facts, as [**4] recited in the Complaint, are as follows:
12. On or about the 24th day of November 1996, at approximately 1:30
a.m. The Plaintiff was admitted, through the Emergency room, at
Massachusetts General Hospital (Massachusetts general Hospital) with a
gunshot wound to his lower back buttocks area.
13. Plaintiff was transported to Massachusetts General Hospital by the
Med Trans. Ambulance service.
14. Plaintiff was initially examined at approximately 2:00 a.m. by
attending Trauma Physician RALPH LOUNSBURRY WARREN, M.D. Surgeon.
15. DOCTOR Warren directed, and caused to be carried out, numerous
x-rays, MRI's CT-Scans, and various [*247] other tests to determine
damage to internal organs and ascertain location of projectile.
16. Upon completing a battery of tests, Plaintiff was transferred for
surgery to undergo surgery to extricate projectile and conduct a
Laprascopic Exploration procedure.
17. Surgical preparation began on Plaintiff at approximately 7:00 a.m.
on November 24, 1996.
18. General anesthesia was delivered and [unconsciousness] [sic]
inducted in Plaintiff at approximately 8:10 a.m.
19. During Plaintiff's surgery, an unknown [**5] law enforcement
agent John Doe or agents were in the operating room during Plaintiff's
surgery to supervise the removal of a bullet (projectile) from
Plaintiff.
20. Once projectile was extracted from Plaintiff, it was turned over
to Defendant Doe One, Law Enforcement Agent(s).
21. At approximately 10:00 a.m., Plaintiff was taken from surgery to
Massachusetts General Hospital Recovery/Intensive Care Unit.
22. Between the hours of 10:00 and 11:00 a.m., Plaintiff was
transferred from the Recovery/Intensive Care Unit to a general
residence area where Plaintiff was assigned a two (2) person room.
23. Once Plaintiff regained consciousness and his cognitive skills
returned, he noticed that his right leg had been shaved.
24. Plaintiff was advised by the attending nurse [Name Unknown] [sic]
that the Law Enforcement ordered specimens taken from Plaintiff which
accounted for his shaven leg.
25. On or about the 24th day of November, 1996, between the hours of
approximately 12:00 p.m. and 3:00 p.m., Plaintiff was interviewed by
Massachusetts General Hospital staff regarding his financial status
and ability to pay incurred hospital bills.
26. Shortly [**6] after being interviewed by Massachusetts General
Hospital staff, as stated in paragraph number twenty (25) [sic] above,
Plaintiff was advised by Massachusetts General Hospital personnel that
the Plaintiff was being discharged from the hospital due to
Plaintiff's inability pay [sic] medical costs.
27. Plaintiff was discharged from Massachusetts General Hospital. On
November 25, 1996, at approximately 2:41 p.m.
28. At approximately 3:00 p.m. Plaintiff was picked up at
Massachusetts General Hospital by family and friends.
29. On or about the 27th day of November 1996, at approximately 9:00
p.m. Plaintiff was again admitted at the Emergency Room of
Massachusetts General Hospital suffering from Abdominal Infection and
fever due to the previously incurred gunshot wound.
30. Upon arrival at Massachusetts General Hospital, Plaintiff was
examined by attending Trauma Physician and a wound swab and blood
cultures were conducted.
31. Plaintiff, was subsequently prescribed medication by Massachusetts
General Hospital doctor(s), which included medication to combat
infection and control pain.
32. Plaintiff left Massachusetts General Hospital after being seen by
the [**7] medical staff and prescribed medication.
[*248] 33. On or about the 28th day of November 1996, at
approximately 12:32 a.m. Plaintiff was admitted for a 3rd time at the
Massachusetts General Hospital Emergency Room, suffering from severe
Abdominal Infection and high fever.
34. Plaintiff was examined by attending trauma physician, JONATHAN N.
ADLER, M.D., who ordered, and caused to be carried out, X-rays of
Plaintiff.
35. Plaintiff was also seen by and spoke with two (2) other medical
staff from time to time. Those being:
PATRICK JACKSON, M.D. and Doctor LUKE MORONE.
36. Plaintiff was transferred to the Radiology Department at
approximately 2:00 a.m. where Plaintiff was seen by Radiologists MARK
J. RIEUMONT, M.D. and SUSIE Y. KIM.
37. Radiologists RIEUMONT and KlM conducted x-rays of Plaintiff, the
results of which were received by Plaintiff, through Collateral
Litigation, and showed the following:
(A). No definite Pneumonia.
(B). On the lateral view, there is a "linear opacity" in the abdomen
which most likely represents and "artifact".
38. Upon Completion of x-rays, the Plaintiff [**8] left Massachusetts
General Hospital at approximately 3:00. a.m. on November 28, 1996.
39. On or about the 15th day of December, 1996, Plaintiff and a
companion (Charles McConnell), were at the Logan International Airport
("L.I.A."), East Boston Massachusetts.
40. At approximately 10:00 a.m. while exiting the Logan International
Airport, the Plaintiff was confronted by several gun wielding
individuals, claiming to be law enforcement agents.
41. Plaintiff was forced to lie down where he was searched, handcuffed
and placed into custody by these agents.
42. Defendants GAMMEL, FARLEY, ROBERTO, KELLY, PETERSON, DESMOND,
CUNIFF, SOILES, QUIGLEY and several JOHN DOES AND JANE DOES, took part
in the arrest of Plaintiff stated in paragraphs number forty (40) and
forty-one (41) above.
43. While in the custody of agents, Plaintiff was approached by
Defendant ROBERTO, who attempted to gain Plaintiff's authorization and
signature on a document.
44. The document stated in paragraph forty-three (43) above was
purporting to be an "authorization" for the surgical removal of an
electronic device from Plaintiff's body.
45. Defendant [**9] ROBERTO, informed Plaintiff, that Plaintiff had
been implanted with an "a microchip tracking device" and law
enforcement (Drug Enforcement Agency/Federal Bureau Investigation) had
been tracing Plaintiff since on or about November 25, 1996.
46. Defendant ROBERTO, further stated to Plaintiff that it was on "on
loan" to Drug Enforcement Agency from the Central Intelligence Agency
(C.I.A.) and was a sophisticated state of the art piece of equipment,
cost a lot of money. Must be returned to the CIA.
47. Defendant ROBERTO, assured Plaintiff that he (Plaintiff) would be
released on bail if Plaintiff would [*249] sign documents and
consent to surgical removal of device.
48. Plaintiff refused to sign the consent forms. Defendant DESMOND
stated "Nobody will ever believe we did this".
49. Plaintiff was transported from Logan International Airport to the
Drug Enforcement Agency's New England Field Division Office (Field
Office) in Boston, Massachusetts.
50. While being transported from the Logan International Airport to
the field office, Defendant's FARLEY, and QUIGLEY, continued to entice
Plaintiff to consent to the surgical [**10] removal of the device.
51. Upon arrival at the Field Office, Defendant FARLEY, directed
Plaintiff's attention to an office door within the Field Office
building that displayed the name plate of one "Dr. STEIN."
52. Defendant FARLEY, advised Plaintiff that Dr. STEIN was the
individual responsible for conduction, or causing to have conducted,
the surgical implantation of the device, in Plaintiff.
53. While at the Field Office, Plaintiff was subjected to
identification process (i.e. Finger printing, Photographs, etc...).
While there Defendant SOILES stated "The implant in you, the devices
capabilities are tracking and listening. We used the Massachusetts
General Hospital Medical Doctors and Nurses and our own physician to
do a clean implant while you were under General Anesthesia". Defendant
JOHN GAMMEL agreed and said we knew where you were from Boston to
Nevada to Arizona. State of the Art Device.
54. Upon the completion of identification process Plaintiff was
transported to the Braintree Police Station (Braintree) for housing.
Defendants: DEA Agents; KELLY & PETERSON Transported Plaintiff and
[**11] also tried to convince plaintiff to consent to removal of
Device.
55. While being taken from the Field Office to a vehicle for
transportation to Braintree, one of the Principal Defendant's
(possibly Defendant CUNIFF), informed Plaintiff that, "He (Plaintiff),
was the only person with the device on the East Coast" and went on to
mention another person implanted with the device on the "West Coast".
56. During the discussion stated in paragraph number fifty-five (55),
above this Defendant further mentioned the source of "device" as the
Central Intelligence Agency.
57. Plaintiff was subsequently transported to, and housed at the
Braintree Station.
58. On or about the 16th day of December 1996, Plaintiff was taken to
the Boston Massachusetts Federal Building and arraigned on Federal
criminal Charges before U.S. Magistrate Judge LAWRENCE COHEN.
59. Plaintiff was transported from the Boston Federal Building, to the
Wyatt detention facility in Central Falls, Rhode Island where he
remained housed.
60. On the 6th day of January 1997, Plaintiff was brought before the
Honorable Magistrate Judge JUDGE ROBERT B. COLLINGS, U.S. District
[**12] Court Judge, for the purpose of a Bond Hearing.
[*250] 61. During the Bond Hearing stated in paragraph number sixty
(60) above; Defendant FARLEY, testified that he heard the conversation
at Logan International Airport between Defendant Roberto, and the
Plaintiff in which Defendant ROBERTO, informed Plaintiff about the
Plaintiff being implanted with a "device" which monitored Plaintiff
activities.
62. Defendant FARLEY, further testified that it was his belief that
ROBERTO, was merely joking with the Plaintiff regarding the "device".
63. Upon adjournment of the January 6th Bond Hearing Plaintiff was
returned to the Central Falls Facility for housing.
64. On June 14, 1999, a hearing was conducted (without the presence of
Plaintiff) at the Federal Court Building Worcester, Massachusetts
before the Honorable NATHANIEL M. GORTON, U.S. District Court Judge,
at which time Judge GORTON, ordered Assistant U.S. Attorney's JEFFREY
AUERHAHN, and CYNTHIA YOUNG, to ascertain whether or not agent's
discussed a device being implanted in Plaintiff, and whether such
implantation did occur.
65. As a result of Judge [**13] GORTON'S, June 14th Court Order the
record reflects that certain Defendant's did in fact advise Plaintiff
that a device was implanted in him, however, these Defendants were
allegedly joking and there was no implantation of such device in
Plaintiff.
66. On the 25th day of May, 2000, the Honorable JOSEPH TAURO, United
States District Judge, ordered the government to cause to be affected
and M.R.I. on Plaintiff to conclusively ascertain the existence of any
electronic device implanted in the Plaintiff.
67. Judge TAURO's, May 25th Judicial order stated in paragraphs number
66 above, has to this date not been effectuated.
68. Plaintiff was under Federal/State investigation and surveillance,
and monitoring at the time of and prior to Plaintiff's admission at
Massachusetts General Hospital for gunshot wound.
69. As a product of discovery process conducted in a malpractice
lawsuit against Massachusetts general Hospital, et al. (Case No:
99-5655H), Plaintiff has procured conclusive medical evidence that
there did exist a foreign "artifact" inside Plaintiff at time of
x-rays conducted at Massachusetts General Hospital, as set forth in
paragraph [**14] numbers 36 and 37 above. This device remains inside
Plaintiff.
Docket No. 1 at 5-14.
The docket entries in United States v. Vincent Portalla, a.k.a.
Vincent Marino, Criminal No. 97-10026 for the dates referred to in
paragraphs 58, 60-62, and 66 of the complaint are reproduced in
Attachment A. The docket entries in United States v. Vincent Michael
Marino, a.k.a. Gigi Portalla, Criminal No. 97-40009 for the
proceedings of June 14, 1999, referred to in paragraphs 64 and 65 of
the complaint are also reproduced in Attachment A
III. Interpretation of Pro-Se Pleadings
This court has a duty to construe pro se submissions with liberality,
and does so in this case as in others. See Hughes v. Rowe, 449 U.S. 5,
9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam); Haines v.
Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 [*251] S. Ct. 594
(1972) (per curiam); see also Lema v. United States, 987 F.2d 48, 54
n. 5 (1st Cir.1993). For this reason, even though the complaint is
unclear in relation to the precise nature of the claims being
asserted, I treat the complaint as sufficient to give notice to the
defendants and the court [**15] that the plaintiff is making Bivens
claims against federal defendants, see Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619,
91 S. Ct. 1999 (1971), and claims against state defendants remediable
under 42 U.S.C. § 1983.
IV. Verification of Pleadings
The court's obligation to accept alleged facts as true for the
purposes of rulings on a motion to dismiss is limited to well-pleaded
facts. Washington Legal Foundation, 993 F.2d at 971. Whether facts are
well-pleaded may depend on (1) the nature of those facts, (2) whether
reasonably expectable sources of verification are identified and, when
examined, do or do not verify the allegations, and (3) whether facts
that are well-pleaded identify reasons to expect that records and
witnesses who might verify allegations are accessible to a defendant
but not to the plaintiff. See, e.g., New England Data Servs., Inc. v.
Becher, 829 F.2d 286 (1st Cir. 1987).
The facts alleged in the complaint in this case include allegations
that multiple hearings were held before two magistrate judges and two
district judges of [**16] this court during which rulings were made.
The record now before the undersigned judge, however, does not include
docket entries, reporter transcripts, or memoranda and orders that
would either verify or show falsity of these allegations. Thus, on the
record now before me, I cannot determine whether many of these alleged
facts are well-pleaded facts.
For example, plaintiff asserts in paragraph 66 that Judge Tauro
ordered the government to cause to be affected and M.R.I. on Plaintiff
to conclusively ascertain the existence of any electronic device
implanted in the Plaintiff
on May 25, 2000. The record from plaintiff's criminal case, over which
Judge Tauro presided, does reflect that the plaintiff appeared before
Judge Tauro on that date, entered a guilty plea, and was sentenced.
Docket Nos. 102, 103, 104, and 106 in Criminal No. 97-10026. Nothing
in the record now before me suggests or refers to, even obliquely, any
statements by anyone at the hearing regarding an M.R.I. Therefore, I
cannot at this time determine that the allegations in paragraph 66 are
not well-pleaded. Also, I cannot determine whether the rule of
pleading explained in Becher does or does not apply. [**17]
V. Defendants' Motions to Dismiss
The federal defendants in this case have filed two separate Motions to
Dismiss (Docket Nos. 21 and 72). The later motion was filed on behalf
of three defendants who were served after the first motion was filed.
Because the memoranda supporting the motions make identical
substantive arguments, I treat them together.
A chief contention of the federal defendants is that plaintiff filed
this suit after his claims were barred under the applicable statute of
limitation. The federal defendants also assert that the action against
them is barred by the doctrine of sovereign immunity, that the
complaint fails to state a claim against them because it is cast as a
Section 1983 claim, and that the complaint should be dismissed as
frivolous.
The Commonwealth of Massachusetts urges that the case against Lt.
Thomas Quigley in his official capacity be dismissed because it is a
claim for damages against [*252] the state that is barred by the
Commonwealth's immunity under the Eleventh Amendment and that, in any
event, the complaint fails to state a claim on which relief may be
granted.
VI. More on the Claim Against the Federal Defendants
A. Failure to State [**18] a Claim
To the extent that the federal defendants seek dismissal because the
complaint is cast as a claim under 42 U.S.C. § 1983, their request
must be denied. As is noted above, pro se plaintiffs are not held to
the same strict standards of pleading that parties who are represented
by counsel are expected to meet. The court therefore treats the claims
against the federal defendants as Bivens claims and will not dismiss
this action merely because the complaint does not explicitly say that
plaintiff is asserting Bivens claims.
B. Frivolousness
The federal defendants characterize plaintiff's allegations as
"fantastic and delusional," and urge that the court dismiss the civil
action for lack of jurisdiction under Rule 12(b)(1) of the Federal
Rules of Civil Procedure. The cases cited by the federal defendants,
however, do not support the contention that a court has authority to
make such an order without a showing of grounds for concluding that no
reasonable adjudicator could credit enough of the allegations to
determine that a genuine dispute of material fact exists.
Bell v. Hood and its progeny arguably support a dismissal of federal
claims [**19] when those claims are patently frivolous as a matter of
law. 327 U.S. 678, 683, 66 S. Ct. 773, 90 L. Ed. 939 (1946). In Bell,
however, the Court did not determine whether the alleged facts were
credible. Rather, noting that "if the allegations have any foundation
in truth, the plaintiffs' legal rights have been ruthlessly violated,"
the Court reversed the district court's dismissal. Id.
The case on which the federal defendants rely most stridently, Neitzke
v. Williams, is wholly inapplicable on this issue. 490 U.S. 319, 109
S. Ct. 1827, 104 L. Ed. 2d 338 (1989). In that case, the Court
interpreted the term "frivolous" as it appears in 28 U.S.C. § 1915.
That section, which has since been amended in ways that are not
relevant here, allows a district court to dismiss a civil action in
which the plaintiff is proceeding in forma pauperis whenever the court
determines that the action is frivolous. The civil docket sheet for
this civil action and the stamp placed on the Complaint by the office
of the Clerk of this court both indicate that the plaintiff paid the $
150.00 filing fee. Therefore, Section 1915 and Neitzke are
inapplicable here.
C. Sovereign Immunity of Federal Defendants [**20] Sued in their
Official Capacities
Actions brought against federal employees in their official capacities
are actions against the United States. 28 U.S.C. § 2679; Hawaii v.
Gordon, 373 U.S. 57, 10 L. Ed. 2d 191, 83 S. Ct. 1052 (1963). Actions
against the United States are allowed only in the limited situations
where the United States has, by a specific statutory provision, waived
its immunity. Bivens actions, therefore, which do not arise under any
statute, may not be brought against the United States or its officials
acting in their official capacity. Rivera v. Riley, 209 F.3d 24, 28
(1st Cir. 2000).
In limited circumstances, the United States has waived its immunity
with respect to the intentional torts of federal law enforcement
officials. See 28 U.S.C. § 2680. That waiver, however, requires that a
claimant file a claim with the relevant federal agency within two
years after the claim has occurred. 28 U.S.C. § 2401; [*253] Roman
v. Townsend, 224 F.3d 24, 27 (1st Cir. 2000). Only after such a claim
is denied may a claimant resort to a suit [**21] against the United
States. 28 U.S.C. § 2675.
Plaintiff has not asserted that he filed a claim with the Drug
Enforcement Agency, Federal Bureau of Investigations, Central
Intelligence Agency, or any other federal entity. This failure
precludes this court from accepting this civil action as a suit for
damages against the United States and its officers in official
capacities.
Of course, the immunity of the United States does not preclude this
court from issuing an appropriate writ if one is required by the facts
of the case and applicable law, and does not preclude the maintenance
of a Bivens action against the federal officials in their individual
capacities. See Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000).
D. Timeliness
Ordinarily a federal court looks to the most closely analogous state
statute of limitation governing personal injury claims for guidance as
to the period of limitation to be applied to Bivens claims and Section
1983 claims. Wilson v. Garcia, 471 U.S. 261, 276-80, 85 L. Ed. 2d 254,
105 S. Ct. 1938 (1985) (Section 1983 claims); Roman v. Townsend, 224
F.3d 24, 29 (1st Cir. 2000) [**22] (Bivens actions). Massachusetts
has a three-year limitation period for personal injuries claims. Mass.
Gen. Laws c. 260, § 2A.
Even when the period of limitation is determined by analogy to state
law, the determination regarding the time of accrual of a cause of
action is governed by federal law. Nieves v. McSweeney, 241 F.3d 46,
52 (1st Cir. 2000). In this circuit, Bivens and Section 1983 claims
accrue at the moment the plaintiff knows, or has reason to know, of
the injury that is the basis for the claims. Id. See also Brackett v.
United States, 270 F.3d 60, 68 n.4 (1st Cir. 2001) ("in tort law under
the discovery rule, the running of the statute of limitations does not
begin until the fact of the injury becomes known, or should have
become known in the exercise of due diligence"). Federal courts may
adopt any state tolling rules that are not at odds with federal law.
Board of Regents v. Tomanio, 446 U.S. 478, 483-486, 64 L. Ed. 2d 440,
100 S. Ct. 1790 (1980).
The federal defendants assert that plaintiff's claim accrued on
December 15, 1996, (more than two years before plaintiff initiated
this civil action) when Defendant [**23] Roberto informed plaintiff
that "a microchip tracking device" was implanted in plaintiff, and
requested plaintiff's authorization for its removal. The court,
however, cannot at the same time credit federal defendants' assertion
that plaintiff's claim about the planting of a "microchip tracking
device" is frivolous and credit federal defendants' assertion that at
the time of that incident plaintiff knew or should have known "the
fact of injury" to the plaintiff.
Plaintiff asserts that he is the victim of an on-going conspiracy and
that the statute of limitation, therefore, has not yet run. Docket No.
50 at 33-35. In the alternative, plaintiff argues that the statute
should be tolled because he is incarcerated in a federal penitentiary,
has limited access to legal materials, and, at least during the
pendency of his criminal case, was incarcerated in a facility that
provided no access whatsoever to legal materials. Id. at 35-36.
Finally, plaintiff argues that his cause of action did not accrue
until November 24, 1999, when he reviewed an x-ray film report. Id. at
73.
Another issue arises from the fact that the federal defendants, under
oath at the plaintiff's criminal trial, [**24] Docket No. 1 P62 &
65, repudiated the comments allegedly made on December 15, 1996. In
these [*254] circumstances, I cannot at this time determine whether
plaintiff is or is not entitled to the benefit of a doctrine of
equitable tolling that would stand in the way of dismissal of this
civil action. See Andrews v. Arkwright Mutual Ins. Co., 423 Mass.
1021, 1021, 673 N.E.2d 40, 41 (Mass. 1996).
VII. More on the Claims Against the State Defendant
The state defendant, Lt. Thomas Quigley, is sued in both his
individual and official capacities. The Commonwealth of Massachusetts
moved to dismiss the claims brought against Lt. Quigley in his
official capacity only (Docket No. 18, filed June 12, 2001; Docket No.
77, filed November 7, 2001).
The Commonwealth of Massachusetts is the real party in interest when a
state police officer is sued for damages in his official capacity.
Hafer v. Melo, 502 U.S. 21, 25, 116 L. Ed. 2d 301, 112 S. Ct. 358
(1991). It is well-established that a state is not amenable to suit
under 42 U.S.C. § 1983 because a state is not a "person" within the
meaning of that statute. Will v. Michigan Dept. of State Police, 491
U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). [**25] For
these reasons, the Order below DISMISSES the claims that seek monetary
damages against the Commonwealth and against Lt. Quigley in his
official capacity.
Although injunctive relief may be available against state officials
sued in their official capacities, see, e.g., Ex Parte Young, 209 U.S.
123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), plaintiff's complaint fails
to state a viable claim for injunctive relief. The facts recited
above, viewed in the light most favorable to the plaintiff do not
establish that Lt. Quigley is engaged in a continuing violation of
federal law. Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S.
Ct. 1347 (1974). Injunctive relief, which is prospective in nature, is
not available to remedy past violations. Id. For these reasons, the
Order below DISMISSES claims for injunctive relief against Lt. Quigley
in his official capacity.
VIII. Plaintiff's Motions
A. Plaintiff's Motions for Disclosure and Production of Newly
Discovered Documents Pursuant to F.R.C.P. 26 and Rule 34 (Docket No.
53, filed December 3, 2001; Docket No. 56, filed December 6, 2001; and
Docket No. 76, filed February 19, 2002)
In Docket [**26] Numbers 53 and 56, which are identical in all
respects, plaintiff seeks to place two documents into evidence. In
Docket Number 76, plaintiff seeks to place various testimony and other
exhibits into evidence. At the present time, no motion for summary
judgment is before this court. Also, plaintiff has not identified any
other pending matter as to which the testimony presented in Docket No.
76 would be appropriately received in evidence.
For these reasons, the Order below DENIES Docket Nos. 53, 56, and 76.
This ruling is without prejudice to the later filing of an appropriate
request in support of or in opposition to a motion for summary
judgment or to the introduction of this evidence for a legitimate
reason at trial or any other hearing.
B. Plaintiff's Motion of Disclosure and Production of Newly Discovered
Documents re: United States Patent Number: 5,629,678 of Human Implants
of Tracking Devices and Other State of the Art Capabilities. All Being
Disclosed Pursuant to Fed. R. Civ. P. Rule 26 and Rule 34 (Docket No.
61, filed January 7, 2002)
As the caption above indicates, in Docket Number 61, plaintiff seeks
to place certain information related to various patents and inventions
[**27] into evidence. This information is not relevant to any issue
[*255] now before this court. For this reason, the Order below DENIES
Docket No. 61.
C. Motions to Clarify Medical Term "Artifact" (Docket Nos. 57, filed
December 20, 2001 and 62, filed January 10, 2002)
In Docket Numbers 57 and 62, which are identical in all respects,
plaintiff seeks to have the court clarify the term "artifact."
Plaintiff asserts that this term appears on at least one of his
medical records.
The definition of the term "artifact" in general is not decisive of
any issue now before the court. The meaning of that term as it appears
on plaintiff's medical record or records, however, may become
important in relation to a motion for summary judgment, at a trial on
the merits, or at an evidentiary hearing at which this evidence could
be received for a legitimate purpose.
For these reasons, the Order below DENIES Docket Nos. 57 and 62.
D. Motion to Offer Caselaw to Prohibit Defense Attorneys from
Protection of Defendants who Continue to Conspire Together in
Furtherance of Conspiracy and Conspiracy of Silence to Cover Up
Discovery (Docket No. 59, filed January 7, 2002)
The Order below DENIES Docket [**28] No. 59 as a Motion. The court
treats this pro-se submission as a memorandum of law, however and has
considered plaintiff's arguments of law presented in this document.
E. Motion of Notice via sharing an Attorney [AUSA Anita Johnson] with
Original Defendants and also via Identity of Interest with Originally
Named Defendants (Docket No. 60, filed January 7, 2002)
The Order below DISMISSES Docket No. 60 as moot in light of the
Statement of Defendant Regarding Service on Individuals (Docket No.
67, filed January 10, 2002) and the Declaration of Assistant U.S.
Attorney Regarding Service (Docket No. 68, filed January 10, 2002).
The Declaration indicates that the two named defendants have now been
served.
IX. Remaining Issues
In the order below, the defendants are directed to file their answer
or answers or other responsive pleadings no later than Monday, April
1, 2002.
Any party or attorney with knowledge of the x-ray and radiology report
referred to in P37 of the complaint and who asserts or may assert a
privilege with respect to those documents may file an application to
file the documents under seal.
In the Order below, any party receiving notice of this Order and
[**29] having custody of any documents, medical records, x-rays, or
other evidence related to the claims asserted in this civil action is
directed to preserve those items pending a further order of this
court.
All parties are directed to file a proposed schedule for the efficient
adjudication of this matter no later than April 15, 2002.
ORDER
For the reasons explained above, it is ORDERED:
(1) Federal Defendants' Motions to Dismiss (Docket No. 21, filed July
10, 2001 and Docket No. 72, filed February 7, 2002) are ALLOWED to the
extent that the complaint seeks damages from federal officials acting
in their official capacity, and are otherwise DENIED;
(2) Thomas Quigley's Motion to Dismiss (Docket No. 77, filed November
7, 2001) is ALLOWED to the extent that it seeks a dismissal of the
case against Lt. Quigley in his official capacity, and is otherwise
DENIED;
[*256] (3) Plaintiff's Motions for Disclosure and Production of
Newly Discovered Documents Pursuant to F.R.C.P. Rule 26 and Rule 34
(Docket No. 53, filed December 3, 2001 and Docket No. 56, filed
December 6, 2001) are DENIED;
(4) Plaintiff's Motion of Newly Discovered Evidence Offered Pursuant
to Fed. R. Civ. P. Rule 26 and Rule [**30] 34 (Docket No. 76, filed
February 19, 2002) is DENIED;
(5) Plaintiff's Disclosure and Production of Newly Discovered
Documents (Docket No. 61, filed January 7, 2002) is DENIED;
(6) Plaintiff's Motions to Clarify Medical Term Artifact (Docket No.
57, filed December 20, 2001 and Docket No. 62, filed January 10, 2002)
are DENIED;
(7) Plaintiff's Motion to Offer Caselaw to Prohibit Defense Attorneys
from Protection of Defendants who Continue to Conspire Together in
Furtherance of Conspiracy and Conspiracy of Silence to Cover Up
Discovery (Docket No. 59, filed January 7, 2002) is DENIED;
(8) Plaintiff's Notice via Sharing an Attorney with Original
Defendants and Also via Identify of Interest with Originally Named
Defendants (Docket No. 60, filed January 7, 2002) is DISMISSED as
moot;
(9) Any party receiving notice of this Order and having custody of any
documents, medical records, x-rays, or other evidence related to the
claims asserted in this civil action is directed to preserve those
items pending a further order of this court
(10) All defendants are directed to file their answer or answers or
other responsive pleadings no later than Monday, April 1, 2002. All
parties are directed [**31] to file a proposed schedule for the
efficient adjudication of this matter no later than April 15, 2002.
Robert E. Keeton
United States District Judge
Attachment A
Reproduction of Docket Entries in United States v. Vincent Portalla,
a.k.a. Gigi, a.k.a. Vincent Marino, Criminal No. 97-10026, for the
dates identified in the Complaint in Civil Action No. 01-10116-REKDate
Docket # Docket Entry
12/16/96 3 MOTION by USA as to Vincent Portalla, Charles McConnell to
unseal the Complaint, supporting Affidavit, filed.
[1:96-m-171] (ktb) [Entry date 12/27/96]
12/16/96 -- Mag. Judge Lawrence P. Cohen. ENDORSED ORDER as to Vincent
Portalla, Charles McConnell: granting [3-1] motion to
unseal the Complaint, supporting Affidavit as to Vincent
Portalla (1). [1:96-m-171] (ktb) [Entry date 12/27/96]
12/16/96 -- Initial appearance as to Vincent Portalla, Charles
McConnell held (Defendant informed of rights.).
[1:96-m-171] (ktb) [Entry date 12/27/96]
12/16/96 -- MOTION made in open court by USA as to Vincent Portalla,
Charles McConnell, for detention, to continue.
[1:96-m-171] (ktb) [Entry date 12/27/96]
12/16/96 -- Mag. Judge Lawrence P. Cohen. ORAL ORDER as to Vincent
Portalla, Charles McConnell granting [0-0] oral motion to
continue as to Vincent Portalla (1), Charles McConnell (2).
[1:96-m-171] (ktb) [Entry date 12/27/96]
12/16/96 4 Mag. Judge Lawrence P. Cohen. CLERK'S NOTES as to Vincent
Portalla re: Initial Appearance; set Detention Hearing for
2:00 p.m. on 12/18/96 for Vincent Portalla Court Reporter:
TAPE [1:96-m-171] (ktb) [Entry date 12/27/96]
. . .
01/06/97 -- Preliminary Examination as to Vincent Portalla held.
[1:96-m-171] (jam) [Entry date 01/09/97]
01/06/97 15 Mag. Judge Robert B. Collings for Mag. Judge
Cohen. CLERK'S NOTES as to Vincent Portalla, re:
Preliminary Exam. and Evidentiary Hearing held. Probable
cause found. Detention taken under advisement.; Court
Reporter: Tape [1:96-m-171] (jam) [Entry
date 01/09/97]
01/06/97 16 NOTICE of Appearance of counsel for Vincent Portalla, by
Attorney Robert L. Sheketoff. [1:96-m-171] (jam)
[Entry date 01/09/97]
01/06/97 17 Exhibit list by USA as to Vincent Portalla, filed.
[1:96-m-171] (jam) [Entry date 01/09/97]
05/25/00 -- Change of Plea Hearing as to Vincent Portalla held. (cmg)
[Entry date 06/01/00]
05/25/00 -- PLEA entered by Vincent Portalla. Court accepts plea.
Guilty: Vincent Portalla (1) count(s) 4s (cmg)
[Entry date 06/01/00]
05/25/00 102 Judge Joseph L. Tauro. CLERK'S NOTES as to Vincent
Portalla, re: change of plea. Deft present w/counsel for
change of plea. Court conducts plea colloquy. Deft enters
plea of guilty to Count 4. Counts 1,2,3 and 5 to be
dismissed by Govt upon sentencing. Govt's factual basis for
plea. Court accepts plea. Disposition immediately to be
concurrent w/D.J. Gorton sentence. P.S.R. is not completed.
Court Reporter: Teri Gibson (cmg) [Entry date 06/01/00]
05/25/00 -- Sentencing held Vincent Portalla (1) count(s) 4s. (cmg)
[Entry date 06/01/00]
05/25/00 103 Judge Joseph L. Tauro. CLERK'S NOTES as to Vincent
Portalla, re: sentencing. AT request of deft and Govt's
attorney, Court proceeds to sentencing phase. Joint
recommendation of parties is adopted by the Court and
imposed as follows: 10 years custody Atty. Gen. on Count 4
to be served currently w/CR 97-40009, 10.3 years Supervised
Release. No Fine. $ 100 special assessment. Court
recommends that deft serve his sentence as close to
Massachusetts as possible. Court Reporter: Teri Gibson
(cmg) [Entry date 06/01/00]
05/25/00 104 Plea Agreement as to Vincent Portalla, Marked as Exhibit
I,
FILED.(c/s) (cmg) [Entry date 06/01/00]
[**32]
[*257] Reproduction of Docket Entries in United States v. Vincent
Michael Marino, Criminal No. 97-40009, for the dates identified in the
Complaint in Civil Action No. 01-10116-REKDate Docket # Docket Entry
06/14/99 -- Status conference as to Robert F. Carrozza, Michael P.
Romano Sr., Anthony Ciampi, John J. Patti III, Eugene A.
Rida Jr., Vincent Michael Marino and Nazzaro Ralph Scarpa
held. (jb) [Entry date 06/23/99]
06/14/99 903 Judge Nathaniel M. Gorton. CLERK'S NOTES as to Robert F.
Carrozza, Michael P. Romano Sr., Anthony Ciampi, John J.
Patti III, Eugene A. Rida Jr., Vincent Michael Marino,
Nazzaro Ralph Scarpa, re: status conference; case called;
counsel and defendant Carrozza pro-se appear for status
conference. Hearing held on motions. Motion # 843, 861, 869
and 876 DENIED. Motions # 844, 858, 870 879 and 881
ALLOWED. Final status conference set for 9/8/99 at 3:30 pm.
set final status conference for 3:30 pm on 9/8/99 for
Robert F. Carrozza, for Michael P. Romano Sr., for Anthony
Ciampi, for John J. III, for Eugene A. Rida Jr., for
Vincent Michael Marino, Nazzaro Ralph Scarpa; Court
Reporter: C. Dahlstrom. (jb) [Entry date 06/23/99]
[**33]
