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FOR THE DISTRICT OF MASSACHUSETTS
THE ESTATE OF EDWARD BRIAN HALLORAN,
Plaintiff,
v.
UNITED STATES OF AMERICA et al.,
Defendants.
CIVIL ACTION NO. 01-11346-RCL
268 F. Supp. 2d 91
June 26, 2003, Decided
MEMORANDUM AND ORDER ON
DEFENDANT JAMES A. RING'S MOTION TO DISMISS
LINDSAY, District Judge.
I. Introduction
This action
arises out of the circumstances surrounding the shooting death of Edward Brian
Halloran ("Halloran") on May 11, 1982, allegedly at the behest of
reputed Boston organized crime leaders Steven Flemmi ("Flemmi") and
James "Whitey" Bulger ("Bulger"). The plaintiff in this
case is Halloran's estate (the "Estate"), represented by Patricia
Marie Halloran Maccarelli, its administratrix. The Estate has named, among
others, the United States of America (the "United States") as a
defendant pursuant to the Federal Tort Claims Act (28 U.S.C. § 2671 et seq.)
(the "FTCA") and the Massachusetts wrongful death statute (Mass. Gen.
L. c. 29), because the United States is alleged to be responsible for certain
actions and/or omissions of agents of the Boston office of the Federal Bureau
of Investigation (the "FBI") in their dealings with Bulger and Flemmi.
James A. Ring ("Ring") is named as a defendant in this action because
he was an agent of the FBI, serving as the supervisory Special Agent of the
Organized Crime Squad for the Boston Office of the FBI beginning early in 1983
and continuing to 1990. Compl. P 14. Several other defendants named in this
action -- H. Paul Rico, John Morris, John J. Connolly, Roderick Kennedy, Robert
Fitzpatrick, James Greenleaf and James Ahearn (collectively, the "FBI
Defendants") -- also served as agents in various capacities in the Boston
FBI office. Id. PP 9-13, 15-16. Also named as defendants are Flemmi, Bulger,
and one of their alleged criminal associates, Kevin Weeks. Id. 17-18. The
complaint asserts ten counts against Ring, each of which he has moved to
dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), for failure to state a claim.
II. Claims Asserted Against Defendant Ring.
The claims
asserted against Ring are as follows: (i) Ring participated in a civil conspiracy with the United States and
the FBI Defendants to preserve Flemmi and Bulger as upper-echelon law
enforcement informants, and that certain tortious and/or wrongful acts by the
participants in this conspiracy
resulted in Halloran's wrongful death, from which a claim arises under Mass.
Gen. L. c.229, § 2 (count I of the complaint); (ii) Ring, the United States,
and the FBI Defendants, through their negligent conduct, caused Halloran to
experience conscious suffering actionable under Mass. Gen. L. c.229 § 6 (count II of the complaint); (iii) Ring, the
United States and the FBI Defendants each committed negligent acts in
connection with the FBI's relationship with Bulger and Flemmi, which negligent
acts resulted in Halloran's death and are actionable under Mass. Gen. L. c.229
§ 2 (count III of the complaint); (iv) the negligent acts of each of Ring, the
United States and the FBI Defendants occasioned Halloran's conscious suffering
and are actionable under Mass. Gen. L. c.229 § 6 (count IV of the complaint);
(v) Ring and the FBI Defendants knowingly, intentionally and with actual malice
denied Halloran his substantive due process right not to be deprived of life
and liberty without due process of the law, constituting a Bivens claim of
violation of the Fifth Amendment to the United States Constitution (count X of
the complaint); (vi) Ring failed adequately to supervise the FBI agents
responsible for maintaining the FBI's relationship with Bulger and Flemmi,
giving rise to a Bivens claim for violation of Halloran's Fourth and Fifth
Amendment rights (a count also designated "count X" in the complaint,
and referred to [*94] below as "count XA"; (vii) Ring and the FBI
Defendants participated in a Bivens conspiracy to preserve Bulger and Flemmi as
FBI informants, allowing actions to occur that deprived Halloran of his Fourth
and Fifth Amendment rights (count XI of the complaint); and (viii) Ring and the
FBI Defendants participated in a Bivens conspiracy to preserve Bulger and
Flemmi as FBI informants, committing and permitting acts that had the effect of
depriving the Estate of its constitutional rights under the Fourth and Fifth
Amendments to access the courts (count XII of the complaint). The complaint
also contains a prayer for reasonable attorneys' fees and costs in the form of
a final count (count XIII) asserted against the United States, Ring, and the
FBI Defendants.
With
respect to counts I, II, III, IV, X, XA and XI, Ring's theory is essentially
that he cannot be held liable for any of the circumstances surrounding
Halloran's death because he had not yet joined the FBI unit implicated in the
Bulger/Flemmi saga. Ring's motion to dismiss also contends that count XII must
be dismissed because the Estate has not made a claim of deprivation of the
right to access the courts sufficient to survive a motion to dismiss under
recent Supreme Court jurisprudence, and that count XIII does not state a
separately cognizable cause of action. For the reasons stated below, Ring's
motion to dismiss is GRANTED.
III. Analysis
A. Counts III, IV, X and XA.
In its Opposition to Defendant James A. Ring's Motion to Dismiss
("Pl. Opp."), the Estate apparently concedes that no set of facts
consistent with the complaint could be shown that would render Ring liable
under counts III and IV (both premised on alleged negligence) or counts X and
XA (both Bivens claims based on alleged duties owed to Halloran). For the
reasons explained in more detail below, and because the plaintiff does not
oppose the dismissal of these counts, I GRANT Halloran's motion to dismiss each
of counts III, IV, X and XA.
B. Counts I and II.
Counts I and II are based on the same Massachusetts statute
providing remedies for wrongful death as counts III and IV, respectively. As in
any negligence action, to state a claim
for negligent causation of wrongful death, a plaintiff proceeding under this
statute must show that the defendant
owed a duty of care to the plaintiff, which duty the defendant breached,
and that the breach was a proximate cause of the plaintiff's injury (i.e., the
decedent's death). See, e.g., Sentinel
Products Corp. v. Platt, 2002 U.S. Dist. Lexis 13217, 2002 WL 1613713 (D. Mass.
July 22, 2002), at *2 (citing Glidden
v. Maglio, 430 Mass. 694, 722 N.E. 2d 971, 973 (Mass. 2000)). Ring, who argues
that counts I and II should be disposed of collectively with counts III and IV,
contends that the Estate can plead no set of facts that would show that he owed
Halloran any duty to protect; nor can the Estate show that any action by Ring
was a cause in fact of Halloran's death, because Ring was employed by the FBI
in Worcester and had no involvement with the FBI Defendants and/or Bulger and
Flemmi as informants until several months after Halloran was killed. See James
A. Ring's Memorandum in Support of His Motion to Dismiss ("Ring
Mem.") at 7-8. The Estate's rejoinder to this argument is that counts I
and II charge Ring with participation in a civil conspiracy, and that he can,
as a matter of law, be held liable for acts of co-conspirators committed before
he joined the conspiracy. Pl. Opp. at 7-8.
Civil conspiracy has been recognized by Massachusetts courts as
a valid cause of action under two separate theories: the [*95] first, sometimes
called "true conspiracy," requires an allegation that
"defendants, acting in unison, had some peculiar power of coercion over
plaintiff that they would not have had if they had been acting
independently." Aetna Cas. Sur.
Co. v. P&B Autobody, 43 F.3d 1546, 1564 (1st Cir. 1994) (quoting Jurgens v. Abraham , 616 F. Supp. 1381, 1386
(D. Mass. 1985) (internal quotation marks omitted). It has been noted that
actions of this type are rare, applying most frequently to "combinations
of employers or employees working together in 'concerted refusals to
deal.'" Grant v. John Hancock Mut.
Life Ins. Co., 183 F. Supp. 2d 344, 363 (D. Mass. 2002) (quoting Mass. Laborers' Health & Welfare Fund v.
Philip Morris, 62 F. Supp. 2d 236, 244 (D. Mass. 1999). The Estate relies on
the second, "concerted action" theory, in which "liability is
imposed on one individual for the tort of another." Kurker v. Hill. 44 Mass. App. Ct. 184, 689
N.E. 2d 833, 836 (Mass. App. Ct. 1998) (citing cases). This theory is further
expounded in the RESTATEMENT (SECOND) OF TORTS § 876 (1977). Specifically, §
876(b) provides:
For harm resulting to a
third person from the tortious conduct of another, one is subject to liability
if he
...
(b) knows that the other's
conduct constitutes a breach of duty and gives substantial assistance or
encouragement to the other so to conduct himself.
The Estate proceeds on this
basis, citing such cases as Kurker for the validity of its theory. The
Massachusetts Appeals Court in Kurker, however, was careful to note that this
section of the RESTATEMENT has not been explicitly adopted in Massachusetts, though
other appellate and trial courts have relied on it in various circumstances.
See Kurker, 689 N.E. 2d at 837 (citing Nelson v. Nason, 343 Mass. 220, 177 N.E. 2d
887 (Mass. App. Ct. 1961) and three federal decisions).
Uncertainty of the validity of § 876(b) in Massachusetts aside,
Ring opposes the Estate's reliance on this theory because "causation is
still an element of the plaintiff's case." Defendant James A. Ring's Reply
to Plaintiff's Opposition to Defendant's Motion to Dismiss ("Def. Reply")
at 6. Indeed, the commentary to the
RESTATEMENT itself states that one who encourages or provides assistance is a
tortfeasor if such encouragement or assistance "is a substantial factor in
causing the resulting tort[.]" RESTATEMENT (SECOND) OF TORTS, § 876, cmt.
(d). Ring's position is that the acts he is alleged to have committed in
furtherance of the conspiracy -- violating the Attorney General Guidelines,
failing adequately to investigate Halloran's death, and the like, as alleged in
the complaint at paragraphs 371-380 -- could not have caused or have been a
substantial factor in the causation of the torts actionable under Mass. Gen. L.
c. 229 §§ 2& 6.
The Estate
argues that Ring misconstrues the nature of its claim, and that the object of
the conspiracy alleged was the protection of Bulger and Flemmi at all costs.
This argument, however, suffers two fatal defects: first, the actual harm to
Halloran alleged in the complaint is his wrongful death (in the case of count
I) and his conscious suffering (in count II). Clearly, no claim can be made
that Ring entered a "common plan" to achieve Halloran's death, and in
fact no such claim is presented. The second flaw in the Estate's argument is
that the Estate is not able to show that the goal of protecting law enforcement
informants is wrongful or unlawful. (Indeed, I would posit that law enforcement
agents regularly form common plans to protect their sources as a matter of good
investigative practice.) Moreover, the Estate has not been able to [*96]
produce any authority for the argument that Ring's own alleged transgressions
(flouting of the Attorney General's guidelines for dealing with informants)
give rise to a private right of action, despite the Estate's repeated assertion
that this is "tortious conduct" on Ring's part, see, e.g., Pl. Opp.
at 6, 8. In essence, the Estate seeks to extend liability for an actionable
tort (wrongful death and conscious suffering) to a defendant against whom it
cannot plead direct liability for that tort, by alleging that the underlying
tort was committed in the furtherance of a civil conspiracy to achieve a wholly
different end. No action will lie against Ring, however, for engaging in a
conspiracy that resulted in torts actionable under the Massachusetts wrongful
death statute. The Estate has not pleaded a conspiracy to cause the harms
actionable under that statute, and the conspiracy it has pleaded does not give
rise to a cause of action on Halloran's behalf. Accordingly, Ring's motion to
dismiss counts I and II is GRANTED.
C. Count XI.
Count XI is
also a conspiracy claim, predicated in this instance not on rights vindicable
under Massachusetts law but on the rule in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.
Ct. 1999, 29 L. Ed. 2d 619 (1971), which allows suit against individual federal
officers for damages arising out of violations of constitutionally guaranteed
rights. The complained-of Fourth and Fifth Amendment violations and
"extreme and severe fright, shock, fear, horror, emotional distress and
wrongful death", Compl. P 464, experienced by Halloran all resulted from
actions taken before Ring joined the FBI's Boston office. As with the wrongful
death claims stated under Massachusetts law, the Estate resists Ring's motion to
dismiss, arguing that the law of conspiracy allows Ring to be held liable for
acts of co-conspirators that took place before he joined the conspiracy. See
Pl. Opp. at 9.
As
discussed above, the object of the alleged conspiracy in itself cannot be said
to have been unlawful or tortious. Indeed, the Bivens claim asserted is for
injuries that were not themselves the object of the conspiracy, and Ring's actions cannot be shown to have been a
proximate cause of Halloran's
alleged constitutional injuries. As with the wrongful death claims, the
Estate's attempt to add one deficient theory (a Bivens claim against Ring,
which must fail for lack of causation) to another (a civil conspiracy claim,
which must fail because the goal of the alleged conspiracy does not give rise
to an independent cause of action) to come up with one whole cause of action is
unavailing. Count XI is DISMISSED as asserted against defendant Ring.
D. Count XII.
In Count
XII, the Estate relies on Bivens to assert a claim against Ring for
interference with its First and Fifth Amendment rights to access the courts.
Ring relies on a recent Supreme Court decision, Christopher v. Harbury,
536 U.S. 403, 122 S. Ct. 2179, 153 L. Ed. 2d 413 (2002), in moving to dismiss
this claim. In Harbury, the Court discussed the pleading standard required to
state a claim for a so-called "backward-looking" denial of right of
access to courts. To survive a motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6), a plaintiff must allege an underlying cause of action that has been
lost through inappropriate actions by government officials, as well as a
"remedy that may be awarded as recompense but not otherwise available in
some suit that may yet be brought." Harbury, 536 U.S. 403, 415, 122 S. Ct. 2179, 2187, 153 L. Ed. 2d
413. The complaint asserts that the actions of the defendants [*97]
"prevented the plaintiff from learning the identities of those involved in
Halloran's death, precluding it from seeking civil judgment against those
responsible for his death...resulting in lost damages" because the
"Estate was deprived its right to seek a civil remedy from 1982 to the
date of this Complaint[.]" Compl. P 474. Under the rule announced in Harbury, this count of the complaint is not
specific enough either with reference to the lost cause of action or to the
remedy sought that could not be awarded in connection with any other claim. I
therefore DISMISS Count XII against Ring for failure to state a claim on which
relief may be granted.
E. Count XIII.
The final count in the complaint asserts a claim for reasonable
attorneys' fees and costs of suit. Because all of the other claims against Ring
have been dismissed, the Estate cannot recover the costs of pursuing its suit
against Ring. Count XIII as asserted against Ring is DISMISSED.
IV. Conclusion
For the reasons stated above, defendant James A. Ring's motion
to dismiss each count of the complaint asserted against him is GRANTED.
SO ORDERED.
/s/ REGINALD C. LINDSAY
United States District Judge
Dated: June 26, 2003