Opinion
Civil Action No. 01-CV-11376-PBS
July 30, 2002
Stephen Hrones, Hrones Garrity, Boston, MA, For FRANK BOLDUC, FRANCIS LARKIN Plaintiffs.
Roberta T. Brown, United States Attorney's Office, Boston, MA, For UNITED STATES OF AMERICA, Defendant.
MEMORANDUM AND ORDER
On February 26, 1991, Plaintiffs Frank Bolduc and Francis Larkin were convicted of two armed robberies they did not commit. The two men served almost nine years in prison. Not until January 1999 did Plaintiffs' attorneys learn that there had been exculpatory evidence not turned over to them in 1991. Six months later, another man confessed that his accomplice and he had committed the crimes for which Plaintiffs were convicted.
Plaintiff Francis Larkin died on November 27, 2001. As of yet, no representative of Mr. Larkin's estate has been substituted as a party to this litigation. On May 20, 2002, defendants informed this Court that a petition for probate of Mr. Larkin's will has been filed, and that counsel for the Executrix of Mr. Larkin's estate had anticipated that his client would be substituted into the case as a plaintiff soon after the petition's return. No motion has yet been filed to this effect.
Bolduc and Larkin allege various tort and constitutional claims against Defendants the United States and FBI Special Agent Daniel Craft, the case agent for the federal prosecution, arising out of their prosecution and conviction in Wisconsin in 1991. Plaintiffs claim that the United States is liable under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq., for torts of malicious prosecution, abuse of process, false imprisonment, and negligent supervision. Each of these alleged torts arises from the actions of Special Agent Craft. Plaintiffs also claim that Special Agent Craft is individually liable for violations of their constitutional right to Due Process. See Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971).
Defendants have each brought a Motion to Dismiss. The United States claims that Plaintiffs have failed to state a claim upon which relief may be granted. Agent Craft claims this Court lacks personal jurisdiction over him.
For the reasons set forth below, the United States' Motion to Dismiss (Docket No. 9) is DENIED with respect to the claim for negligent supervision and ALLOWED with respect to the remaining claims, and Special Agent Craft's Motion to Dismiss (Docket No. 6) is ALLOWED.
I. MOTION TO DISMISS STANDARD
Motions to dismiss are subject to limited inquiry, focusing not on "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). Under Fed.R.Civ.P. 12(b)(6), a court may grant dismissal only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Roeder v. Alpha Indus., Inc., 814 F.2d 22, 25 (1st Cir. 1987) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). This Court takes as true "the well-pleaded facts as they appear in the complaint, extending [the] plaintiff every reasonable inference in his favor." Coyne v. City of Somerville, 972 F.2d 440, 442-43 (1st Cir. 1992). Plaintiffs may not, however, rely upon "unsupported conclusions or interpretations of law." Murphy v. United States, 45 F.3d at 522 (citation omitted).
II. FACTS
For more than 25 years, two men dressed in trench coats, dubbed the "Trench Coat Robbers," robbed banks across the country. Three of these robberies took place in Wisconsin between 1988 and 1989.
In 1988, FBI agents Craft and Craig interviewed three eyewitnesses to the robberies. Each of the three witnesses was asked to pick the robbers out of a photograph array. Two witnesses identified the same two men, Allen Wildwerding and Daniel Thompson. The third identified only Wildwerding. The agents memorialized these interviews in three FBI 302 reports dated November 30, 1988.
As part of his Wisconsin-based investigation of these robberies, Agent Craft caused Bolduc and Larkin, then in the custody of the Massachusetts correctional system, to be brought to Wisconsin for a lineup on August 6, 1990. The two men were identified as the trench coat robbers and subsequently charged with the Wisconsin robberies.
Bolduc and Larkin stood trial in January 1991. The government did not provide the three FBI 302 reports to defense counsel at any point prior to or during the trial. An eyewitness testified at trial, identifying the Plaintiffs as the robbers. When asked whether she had viewed any other photographs of suspects prior to her picking the two Plaintiffs out of a photo array, she responded she had not. Agent Craft, sitting at the prosecution table, said nothing.
Bolduc and Larkin were convicted on February 26, 1991, for two of the robberies. Bolduc received a sentence of 580 months; Larkin received 390 months. Following the Plaintiffs' incarceration, more "trench coat robberies" took place.
On January 15, 1999, Robert Richman, defense counsel for a new trench coat robbery suspect, William Kirkpatrick, provided the Plaintiffs with the three 302 reports that had not been provided to Plaintiffs before their trial. Kirkpatrick later confessed to the trench coat robberies, including the 1988 and 1989 Wisconsin robberies for which the Plaintiffs were convicted. Kirkpatrick and his accomplice were convicted.
Bolduc and Larkin's resulting habeas corpus petitions led Judge Thomas Curran to vacate their convictions on June 11, 1999. Judge Curran later issued a certificate of innocence to Bolduc; Larkin did not request a certificate. Larkin was released in June 1999; Bolduc in November 1999.
III. MOTION TO DISMISS DEFENDANT UNITED STATES
Under the FTCA, the United States has granted a limited waiver of its sovereign immunity in "circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b)(1). To survive the United States' Motion to Dismiss, Plaintiffs must have adequately pled their claims for malicious prosecution, abuse of process, false imprisonment, and negligent supervision under Wisconsin tort law.
A. Malicious Prosecution
Under Wisconsin law, Plaintiffs' claim for malicious prosecution requires six elements: (1) a prior institution or continuation of judicial proceedings against Bolduc and Larkin; (2) the former proceedings were by or at the instance of the United States; (3) the prior proceedings terminated in Bolduc's and Larkin's favor; (4) malice on the part of the United States in instituting the former proceedings; (5) a want of probable cause for the institution of the former proceedings; and (6) injury or damage resulting to Bolduc and Larkin from the former proceedings. Kaminske v. Wisconsin Cent. Ltd., 102 F. Supp.2d 1066, 1073 (E.D.Wis. 2000) (citing Strid v. Converse, 331 N.W.2d 350 (1983)).
The United States first claims that Plaintiffs have failed to adequately plead the malice element. Plaintiffs contend that malice is established by the United States' persistent concealment of the identification of other individuals as the robbers.
Wisconsin recognizes two forms of malice: "malice in fact," in which the defendant is found to have acted chiefly from motives of ill will; and "malice at law," in which the defendant has a primary purpose "other than the social one of bringing an offender to justice." Meyer v. Ewald, 224 N.W.2d 419, 422 (Wis. 1974). The Complaint does not allege that Agent Craft or the United States either acted from ill will toward Bolduc and Larkin or had some other purpose than to find the trench coat robbers. The United States also argues that the Complaint fails to allege that Defendants lacked probable cause to prosecute Bolduc and Larkin. "Probable cause is the quantum of evidence that would lead an ordinary and reasonable layman in the circumstances, to believe that the plaintiff committed a crime." Kaminske, 102 F. Supp.2d at 1073 (E.D.Wis. 2000) (quoting Hajec v. Novitzke, 175 N.W.2d 193, 200 (Wis. 1970) (internal quotations omitted)).
Plaintiffs rely on Hajec to claim that the reversal of their convictions establishes a want of probable cause: "Where . . . a defendant in a criminal prosecution is discharged, that is prima facie evidence of want of probable cause." Hajec, 175 N.W.2d at 200. Plaintiffs misapprehend the meaning of "discharge," however. "[T]he Wisconsin Supreme Court has long distinguished between discharge of a criminal action by a magistrate on the examination of a criminal complaint (a probable cause determination) and an acquittal following trial." Johnson v. Hondo, Inc., 125 F.3d 408, 417 (7th Cir. 1997). While Plaintiffs' convictions were later reversed, this reversal is not equivalent to a magistrate's declaration that the case against the Plaintiffs lacked probable cause. Plaintiffs' post-trial exoneration, standing alone, does not establish a prima facie case for want of probable cause.
"[A] conviction in a court of record, even though reversed on appeal, is conclusive evidence of the existence of probable cause in a subsequent malicious prosecution action." Kreig v. Dayton-Hudson Corp., 311 N.W.2d 641, 644 (Wis. 1981). If the conviction was obtained by "collateral fraud," however, the conviction does not establish probable cause. See id.; Restatement (Second) of Torts § 667 (1977) ("The conviction of the accused by a magistrate or trial court, although reversed by an appellate tribunal, conclusively establishes the existence of probable cause, unless the conviction was obtained by fraud, perjury or other corrupt means."). When all reasonable inferences are drawn in favor of the Plaintiffs, the allegations regarding the government's intentional failure to turn over heartland exculpatory evidence are sufficient to establish that the conviction was obtained by collateral fraud or other corrupt means.
As the Complaint fails to allege malice, however, Plaintiffs' claim for malicious prosecution is DISMISSED.
B. Abuse of Process
Plaintiffs also allege abuse of process against the United States. To plead a claim for abuse of process under Wisconsin law, Plaintiffs must allege two elements: "(1) a purpose other than that which the process was designed to accomplish, and (2) 'a willful act in the use of process not proper in the regular conduct of the proceedings.'" Kaminske, 102 F. Supp.2d at 1077 (quoting Brownsell v. Klawitter, 306 N.W.2d 31 [ 306 N.W.2d 41] (Wis. 1981)). "Abuse of process is broader than malicious prosecution. . . . abuse of process lies even in those instances where . . . legal procedure had been set in motion in proper form, with probable cause and even with ultimate success, but nevertheless had been perverted to accomplish an ulterior purpose for which it was not designed." Id. (quoting Strid, 331 N.W.2d at 354).
Plaintiffs claim that the government's ulterior purpose was to make arrests rather than find the true perpetrators, though this contention is not obvious from their Complaint. A desire to "make arrests" is not the type of ulterior motive encompassed by Wisconsin's abuse of process tort. "Some definite act or threat not authorized by the process, or aimed at an objective not legitimate in the use of the process, is required; and there is no liability where the defendant has done nothing more than carry out the process to its authorized conclusion, even though with bad intentions." Thompson v. Beecham, 241 N.W.2d 163, 166 (Wis. 1976). "The plaintiff must allege and prove that something was done under the process which was not warranted by its terms. The existence of an improper purpose alone is not enough, for this improper purpose must also culminate in an actual misuse of the process to obtain some ulterior advantage." Id.
Plaintiffs have failed to adequately plead either an ulterior purpose or a "willful act in the use of process not proper in the regular conduct of the proceedings." Kaminske, 102 F. Supp.2d at 1077. Their claim for abuse of process is DISMISSED.
C. False Imprisonment
Wisconsin defines the tort of false imprisonment as, "[t]he unlawful restraint by one person of the physical liberty of another." Maniaci v. Marquette Univ., 184 N.W.2d 168, 172 (Wis. 1971) (quoting Lane v. Collins, 138 N.W.2d 264, 266 (Wis. 1965)). "[A] 'lawful' restraint does not constitute false imprisonment. . . ." Id. According to the Restatement (Second) of Torts:
In order for this Section [on false imprisonment] to be applicable to an arrest, it must be a false arrest, made without legal authority. One who instigates or participates in a lawful arrest, as for example an arrest made under a properly issued warrant by an officer charged with the duty of enforcing it . . . is not liable for false imprisonment, since no false imprisonment has occurred.
Restatement (Second) of Torts § 45A, com. b (quoted in Maniaci, 184 N.W.2d at 172).
The government correctly points out that Plaintiffs have made no allegation that any of the grand jury indictments or judicial procedures leading to their incarceration were illegal. Plaintiffs' claim for false imprisonment is DISMISSED.
D. Negligent Supervision
The United States would also be liable for the negligence of Agent Craft and any other agents in failing to disclose exculpatory negligence.
In Wisconsin, a plaintiff may assert claim of negligent hiring, training or supervision by pleading (1) that the employer has a duty of care, (2) that the employer breached that duty, (3) that the act or omission of the employee was the cause-in-fact of the plaintiff's injury, and (4) that the act or omission of the employer was a cause-in-fact of the wrongful act of the employee. See Miller v. Wal-Mart Stores, Inc., 580 N.W.2d 233, 267-68 (Wis. 1998). "Even if these elements are met, public policy considerations may nevertheless preclude imposing liability on the defendant." Id. at 260.
The government argues that Plaintiffs' allegations fall short regarding the acts or omissions of the employer, the United States, because the Complaint does not state that the acts or omissions were a cause-in-fact of any wrongful action by defendant Agent Craft. Plaintiffs allege that "Mr. Craft's supervisors failed to adequately supervise him to prevent his misconduct or to discover it after it had occurred." Complaint, ¶ 32. They also allege, "As a result of the actions of Agent Craft and the FBI, each of the Plaintiffs spent nine years in prison as innocent men." Id., ¶ 28.
The Federal Rules of Civil Procedure require only notice pleading, that is, "a short and plain statement of the claim showing that the pleader is entitled to relief." Facts must be accepted as alleged, but "bald assertions, subjective characterizations and legal conclusions" do not suffice. DM Research, Inc. v. Coll. of Am. Pathologists, 170 F.3d 53, 55 (1st Cir. 1999). "[T]he price of entry . . . is for the plaintiff to allege a factual predicate concrete enough to warrant further proceedings. . . ." Id.
For purposes of a motion to dismiss, Plaintiffs sufficiently allege this causation element. This is particularly true in light of their current allegation that, following Plaintiffs' incarceration, "similar ['trench coat'] robberies continued to take place," without any questioning on the part of the FBI as to whether they had convicted the correct persons. Complaint, ¶ 21. When all reasonable inferences are drawn in favor of Plaintiffs, the FBI was negligent in failing to disclose the 302s either at the time of the initial trial, or when subsequent events vitiated its bedrock assumption that it had caught the trench coat robbers. The United States' Motion is DENIED with respect to Plaintiffs' claim for negligent supervision.
IV. MOTION TO DISMISS AGENT CRAFT
On a motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of making a "prima facie showing" sufficient "to support findings of all facts essential to personal jurisdiction." Foster-Miller, Inc. v. Babcock Wilcox Canada, 46 F.3d 138, 145 (1st Cir. 1995) (quoting Boit v. Gar-Tec Prods., Inc., 967 F.2d 671, 675 (1st Cir. 1992)). The Court will "accept the plaintiff's (properly documented) evidentiary proffers as true for the purpose of the prima facie jurisdictional showing." Id.
Plaintiffs claim that this Court has specific jurisdiction over Agent Craft. Specific in personam jurisdiction "[h]inges on satisfaction of two requirements: first, that the forum in which the federal district court sits has a long-arm statute that purports to grant jurisdiction over the defendant; and second, that the exercise of jurisdiction pursuant to that statute comports with the strictures of the Constitution." Pritzker v. Yari, 42 F.3d 53, 60 (1st Cir. 1994). The Massachusetts long-arm statute, Mass. Gen. Laws ch. 223A, § 3 (1998), defines the jurisdiction of this Court over a nonresident in a diversity action. See Hahn v. Vermont Law Sch., 698 F.2d 48, 49 (1st Cir. 1983). It states, in pertinent part, that:
A court may exercise personal jurisdiction over a person, who acts directly or by an agent, as to a cause of action in law or equity arising from the person's . . .
(c) causing tortious injury by an act or omission in this commonwealth;
(d) causing tortious injury in this commonwealth by an act or omission outside this commonwealth if he regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in this commonwealth.
Mass. Gen. Laws ch. 223A, § 3.
Plaintiffs allege that Craft violated their Fifth and Sixth Amendment rights under the United States Constitution by failing to disclose exculpatory evidence, and that he maliciously prosecuted them. The only activity that Special Agent Craft undertook that even touches on Massachusetts, however, was the direction of a Writ of Habeas Corpus to the superintendents of the Massachusetts correctional facility in which Plaintiffs were then being held on unrelated matters. This writ merely commanded the presence of the Plaintiffs for a lineup in Wisconsin. Craft's direction of the writ to a Massachusetts authority did not cause tortious injury in the Commonwealth necessary to satisfy Mass. Gen. Laws ch. 223A, § 3(c).
The government sought, and the United States District Court for the District of Wisconsin issued, a Writ of Habeas Corpus ad prosequendum. As the Seventh Circuit ruled in United States v. Larkin, 978 F.2d 964, 967-68 (7th Cir. 1992), in an appeal of their convictions brought by these Plaintiffs, the Court should have issued a Writ ad testificandum, not ad prosequendum, to compel their appearance in a lineup. This mistake, however, does not form the basis for the tort claim.
Nor can Plaintiffs establish jurisdiction under § 3(d). Assuming, arguendo, that Plaintiffs could establish a tortious act or omission causing injury within the Commonwealth, they have not established those additional elements required by the long-arm statute. Special Agent Craft, in his individual capacity, did not regularly conduct or solicit business in Massachusetts. Mass. Gen. Laws ch. 223A, § 3(d). Nor did he "derive substantial revenue from goods used or consumed or services rendered" in Massachusetts. Id. Finally, Plaintiffs have not alleged that Agent Craft engaged in any persistent course of conduct in Massachusetts. They merely allege that he once directed the Writs to the Commonwealth.
Plaintiffs have failed to establish in personam jurisdiction under the Massachusetts long-arm statute. This Court need not conduct a further inquiry into the due process considerations for personal jurisdiction. Special Agent Craft's Motion to Dismiss is ALLOWED.
V. ORDER
For the reasons stated above, the United States' Motion to Dismiss (Docket No. 9) is DENIED on the claim of negligent supervision and ALLOWED on the remaining claims, and Special Agent Craft's Motion to Dismiss (Docket No. 6) is ALLOWED.