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[NOT FOR PUBLICATION]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.
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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)
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(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
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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
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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.
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