                  Not for publication in West's Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                          For the First Circuit

No. 03-1413

                               MARCUS KENNEDY,

                           Plaintiff, Appellant,

                                        v.

              UNITED STATES OF AMERICA and MARK RADCLIFF,

                          Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                   FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Joseph L. Tauro, U.S. District Judge]


                                     Before

                          Boudin, Chief Judge,
                       Torruella, Circuit Judge,
                and Oberdorfer,* Senior District Judge.


     Willie J. Davis and Davis, Robinson & White, LLP on brief for
appellant.
     Michael J. Sullivan, United States Attorney, and George B.
Henderson, II, Assistant United States Attorney, on brief for the
United States.


                              October 24, 2003




     *
      Of the District of the District of Columbia, sitting by
designation.
             PER CURIAM. Marcus Kennedy appeals the district court’s

order dismissing his complaint against the United States for

failure to state a claim.        See Fed. R. Civ. P. 12(b)(6).           We affirm

essentially    for    the    reasons   stated      in   the   district    court's

memorandum of decision, dated November 26, 2002, adding only the

following.

           We review de novo the district court's grant of a Rule

12(b)(6) motion to dismiss for failure to state a claim.                 Martin v.

Applied Cellular Tech., Inc., 284 F.3d 1, 5 (1st Cir. 2002).

Kennedy filed his complaint against the United States and Mark

Radcliff1 under the Federal Tort Claims Act, alleging that the

United   States      was    liable   for   false    imprisonment,    malicious

prosecution and infliction of emotional harm and distress because

of Radcliff’s actions.          Under the Federal Tort Claims Act, the

United States is liable for the acts of an employee only if the

employee was acting within the scope of his or her employment.                See

28 U.S.C.A. § 1346(b)(West 2003). The substantive law of the State

where the act or omission occurred governs this inquiry.                        In

Massachusetts, the “conduct of an agent is within the scope of

employment if it is of the kind he is employed to perform; if it

occurs substantially within the authorized time and space limits;

and if it is motivated, at least in part, by a purpose to serve the


     1
      Radcliff was also a named defendant, but he was never
properly served, leading the district court to dismiss, without
prejudice, all of the claims against him.

                                       -2-
employer.”     Wang Laboratories, Inc. v. Business Incentives, Inc.,

501 N.E.2d 1163, 1166 (Mass. 1986)(internal citations omitted),

quoted in Kelly v. United States, 924 F.2d 355, 357 (1st Cir.

1991).

          According to the complaint, Radcliff was, at the time in

question, an employee of the Department of Housing and Urban

Development.     During an evening of socializing and drinking with

Kennedy, he allegedly gave false and misleading information to the

Boston Police, leading them to search Kennedy’s home and car, find

Kennedy in possession of a firearm (left in his car by Radcliff),

arrest Kennedy and file several criminal charges against him, all

of which were subsequently dropped when the Boston Police realized

that Radcliff had intentionally given them false and misleading

information.    The complaint further alleges that Radcliff told the

police that he, Radcliff, was an undercover federal agent and that

Kennedy was his informant.

             The district court concluded that the allegations in the

complaint could not support a claim that Radcliff was acting within

the scope of his employment.      We agree.   As the district court

noted, Kennedy himself contends in Attachment A to the complaint

that Radcliff was lying when he told the Boston Police that he was

an undercover federal agent. Accepting that allegation as true, as

we must, it is impossible to conceive of a theory under which

Radcliff’s actions that evening could have been within the scope of


                                  -3-
his employment.   Accordingly, the complaint against the United

States was properly dismissed for failure to state a claim.

          Affirmed.




                              -4-
