
USCA1 Opinion

	




          September 7, 1993                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 93-1208                                     PHILIP WATERS,                                Plaintiff, Appellant,                                          v.                                  KIM GADDY, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                       [Hon. Rya W. Zobel, U.S. District Judge]                                           ___________________                                 ____________________                                        Before                               Selya, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ____________________            Philip Waters on brief pro se.            _____________            Albert  W.  Wallis,  Corporation  Counsel,   Kevin  S.  McDermott,            __________________                           ____________________        Assistant   Corporation   Counsel,   and   Roberta   James,  Assistant                                                   _______________        Corporation Counsel, on  brief for appellees Kim Gaddy, Dino Gonzales,        John Kelly and Leo Ronan.            Scott  Harshbarger,   Attorney  General,  and   Neil  S.   Tassel,            __________________                              _________________        Assistant Attorney  General, on brief for  appellee Assistant District        Attorney James Larkin.                                 ____________________                                 ____________________                 Per Curiam.  Pro-se  appellant Philip Waters appeals the                 __________            district court dismissal  of his claims to have  been injured            in  violation of state and federal civil rights laws, as well            as of  state tort  law.   The  injuries are  alleged to  have            stemmed  from a conspiracy on the part of police officers, an            unidentified witness, and  the prosecuting assistant district            attorney   to   secure  Waters'   conviction   through  false            testimony.  The district court dismissed the  claims as time-            barred.  We affirm.                 In June 1987,  Waters was tried  and convicted of  arson            and  assault to commit murder  in connection with  a fire the            previous  year in  Dorchester,  Massachusetts.    During  the            trial,   appellee   officers  testified   that   they  either            dispatched or heard the name and description of Waters as the            suspect of the arson.    Appellee Larkin was  the prosecuting            attorney.   On  October 6,  1987, Waters  obtained  a written            transcript of  police and fire  department communication logs            concerning  the  Dorchester   fire.    After   examining  the            transcript,  Waters concluded  that the  police  officers had            perjured themselves  at  this trial.1    In August  1990,  he                                            ____________________            1.    The alleged perjury appears to consist of the fact that            at trial testimony was presented that two descriptions of the            suspected arsonist were broadcast  by the police  immediately            after  the fire.    The first described  the suspect as being            five feet, ten inches tall, the second as being six feet, six            inches  tall.  Waters alleges that only the first description            was actually broadcast  and that the second was fabricated to            accord with  the fact that  he is  six feet six  inches tall.            The first  description did, however, identify  Waters by name            filed a motion for a new trial in state court on the basis of            this alleged perjury.2                 The instant  suit was commenced  on August 26,  1992, in            the   Middlesex  County  Superior  Court,  after  Waters  had            obtained  am  audio  transmission  of  the  police  and  fire            department  communications   on  the  night  of   the  arson.            Liberally construed, the suit alleges violations of state and            federal civil rights laws, M.G.L. c.12,  11I; 42 U.S.C.  1981            et. seq., and other  tortious conduct by police officers,  an            __  ___            unidentified bystander and the prosecuting attorney.   Waters            sought declaratory, injunctive and damage relief.  On October            15, 1992,  appellee Gaddy  removed the  suit to  the District            Court  for  the District  of  Massachusetts,  pursuant to  28            U.S.C.   1441(b).  The court granted the motion to dismiss of            appellee officers  on the ground  that "the action  was filed            after the statute  of limitations had run."    The  motion to            dismiss of  appellee Assistant District  Attorney Larkin  was            granted on  the grounds  that he possessed  absolute immunity            from suit and that  the statute of limitations had run.  This            appeal followed.                 Each  of  Waters' claims  is  subject  to a  three  year            statute of limitations.  Massachusetts law provides that both                                            ____________________            on  the basis of eyewitness testimony of those present at the            time the fire was set.            2.  The  record does  not  indicate the  disposition of  this            motion.                                         -3-            actions arising  out of  alleged violations of  civil rights,            M.G.L.  c.260,   5B, and  actions  sounding  in tort,  M.G.L.            c.260,  2A, must  be commenced within three  years next after            the  cause  of action  accrues.   The  same limit  applies to            claims  under  the Massachusetts  Torts  Claim  Act.   M.G.L.            c.258,  4.   Since the  federal civil rights  statute has  no            specific period of limitation, the court is required to apply            the period of limitation of the most appropriate or analogous            state  statute.  Goodman v.  Lukens Steel Co.,  482 U.S. 656,                             _______     _______________            660  (1987).    This  court  has  found  that  a  three  year            limitations period  applies to  federal  civil rights  claims            arising  in Massachusetts.   Johnson  v. Rodriguez,  943 F.2d                                         _______     _________            104, 107 (1st Cir. 1991), cert. denied, 112 S.Ct. 948 (1992).                                      ____  ______                 Waters asserts  that the statute of  limitations in this            case  was  tolled by  the  fact that  he  was unaware  of any            perjured testimony until after the trial at which the alleged            perjury occurred,  due to fraudulent concealment  of facts by            the  appellees.   Under the  Massachusetts discovery  rule, a            cause of action does  not accrue "until the facts  which gave            rise to  the cause of  action .  . . either  became known  or            should have become known to the injured party in the exercise            of reasonable diligence."  Edwards v. John Hancock Mut.  Life                                       _______    _______________________            Ins.  Co., 973  F.2d  1027, 1029  (1st  Cir. 1992)  (applying            ________            Massachusetts law); Catrone v. Thoroughbred Racing Ass'n, 929                                _______    _________________________            F.2d 881,  885 (1st  Cir. 1991) (applying  Massachusetts law)                                         -4-            (citing cases).  The plaintiff need not be aware  of the full            extent of the harm which  he has suffered for the  statute to            run.  Bowen v. Eli Lilly & Co., Inc., 408 Mass. 204, 206, 557                  _____    ____________________            N.E.2d 739, 741  (1990).   "The important point  is that  the            statute  of limitations starts to run when an event or events            have  occurred  that  were   reasonably  likely  to  put  the            plaintiff  on  notice  that  someone  may  have  cause  h[im]            injury."  Id.  See also Malapanis v. Shirazi, 21 Mass.App.Ct.                      __   ___ ____ _________    _______            378,  383, 487  N.E.2d 533,  537 (1986) (action  accrues when            reasonably  prudent  person   "reacting  to  any   suspicious            circumstances of which he might have  been aware . . . should            have discovered that he had been harmed").  While the accrual            period  under the federal civil rights statute is a matter of            federal law, Rivera-Muriente v.  Agosto-Alicea, 959 F.2d 349,                         _______________     _____________            353 (1st Cir. 1992) (citing cases), the standard  is similar.            "The  accrual  period  in  a [federal  civil  rights  action]            ordinarily starts when the plaintiff knows, or  has reason to            know,  of the  injury on  which  the action  is based."   Id.                                                                      __            (citing cases).                 According  to  Waters, he  was  not  aware  that he  had            suffered harm from  any perjury until September  1991 when he            obtained  and listened to an  audio tape of  the actual radio            transmission of the  police and fire department  on the night            of  the  fire.   We  do  not agree.    Waters  admits in  his            complaint  that  in  October  1987 he  received  the  written                                         -5-            transcript of the  conversation which he  later heard on  the            tape  and  that  "[t]his  transcript showed  [him]  that  the            testimony of Defendants Gaddy, Gonzales, Kelly, and Ronan was            false, and  known to them to be  false."  Complaint para. 39.            Plaintiff  also admits that on the basis of this evidence, he            filed a motion for a new trial in state court.  Id. para. 40.                                                            __            The  only new  information added  by the  audio tape  was the            identification  of  the  voices  of  the  officers,  who  are            identified on  the written transcript only by number.  Waters            alleges  that  the audio  tape  indicates  that the  original            description  was  broadcast  not  by Officer  Gaddy,  as  she            testified at  trial, but by Officer  Gonzalez.  Nevertheless,            Waters  also  alleges  that the  written  transcript  already            provided the evidence that Officer Gaddy had perjured herself            in  claiming  to have  broadcast  the  second, more  accurate            description.   Thus,  even if,  as Waters  claims,  the audio            transcript  provided  further  confirmation  of  the  alleged            perjury,  Waters by  his own  admission was already  aware in            October 1987 of sufficient  facts to give him reason  to know                                         -6-            that  he had been harmed.3  Rivera-Muriente, 959 F.2d at 353;                                        _______________            Bowen, 408 Mass. at 206, 557 N.E.2d at 741.            _____                 Plaintiff's  cause of  action accrued  at the  latest in            October  1987.  Hence, the  present suit, which  was filed in            August  1992,   is  barred   by  the  relevant   statutes  of            limitations.4                   The grant of the motions to dismiss is affirmed.                                                        ________                                            ____________________            3.   Waters asserts that  his cause of action arises  not out            of  the perjured testimony at  trial but out  of a conspiracy            among the defendants to deprive him of his rights.  Howsoever            the  cause of  action is  characterized, sufficient  facts to            start the  limitations period  were possessed by  Waters upon            his  reading of the transcript in October 1987.  See Edwards,                                                             ___ _______            973 F.2d at 1029  (cause of action accrues when  facts giving            rise  to action,  not legal  theory, are  known or  should be            known).            4.  Having found  the  suit  to  be time-barred,  we  do  not            address the  question of whether  appellee Assistant District            Attorney Larkin was entitled to absolute immunity.                                         -7-
