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Thread: (2002) Implanted Microchip Lawsuit

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    Default (2002) Implanted Microchip Lawsuit

    42. Defendants GAMMEL, FARLEY, ROBERTO, KELLY, PETERSON, DESMOND,
    CUNIFF, SOILES, QUIGLEY and several JOHN DOES AND JANE DOES, took part
    in the arrest of Plaintiff stated in paragraphs number forty (40) and
    forty-one (41) above.

    43. While in the custody of agents, Plaintiff was approached by
    Defendant ROBERTO, who attempted to gain Plaintiff's authorization and
    signature on a document.

    44. The document stated in paragraph forty-three (43) above was
    purporting to be an "authorization" for the surgical removal of an
    electronic device from Plaintiff's body.

    45. Defendant [**9] ROBERTO, informed Plaintiff, that Plaintiff had
    been implanted with an "a microchip tracking device" and law
    enforcement (Drug Enforcement Agency/Federal Bureau Investigation) had
    been tracing Plaintiff since on or about November 25, 1996.

    46. Defendant ROBERTO, further stated to Plaintiff that it was on "on
    loan" to Drug Enforcement Agency from the Central Intelligence Agency
    (C.I.A.) and was a sophisticated state of the art piece of equipment,
    cost a lot of money. Must be returned to the CIA.

    47. Defendant ROBERTO, assured Plaintiff that he (Plaintiff) would be
    released on bail if Plaintiff would [*249] sign documents and
    consent to surgical removal of device.

    48. Plaintiff refused to sign the consent forms. Defendant DESMOND
    stated "Nobody will ever believe we did this".

    49. Plaintiff was transported from Logan International Airport to the
    Drug Enforcement Agency's New England Field Division Office (Field
    Office) in Boston, Massachusetts.

    50. While being transported from the Logan International Airport to
    the field office, Defendant's FARLEY, and QUIGLEY, continued to entice
    Plaintiff to consent to the surgical [**10] removal of the device.

    ++++++++++++++++++++++++


    VINCENT MICHAEL MARINO, a/k/a Vincent Michael Portalla, Plaintiff v.
    JOHN GAMMEL, FBI Agent, DAMIEN FARLEY, DEA Agent, ANTHONY ROBERTO, DEA
    Agent, VINCENT KELLY, DEA Agent, NORMAN PETERSON, DEA Agent, JOSEPH
    DESMOND, DEA Agent, MICHAEL CUNIFF, DEA Agent, JAMES SOILES, DEA,
    Agent, THOMAS QUIGLEY, Massachusetts State Police, and JOHN AND JANE
    DOES 1-20, Defendants

    CIVIL ACTION NO. 01-10116-REK

    UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

    191 F. Supp. 2d 243; 2002 U.S. Dist. LEXIS 4471


    March 5, 2002, Decided

    DISPOSITION: Defendants' motions to dismiss were granted, in part.
    Plaintiff's discovery motions were denied. Plaintiff's other motions
    were denied or dismissed.

    COUNSEL: [**1] VINCENT MICHAEL MARINO aka Vincent Michael Portalla,
    Plaintiff, Pro se, Atlanta, GA.

    For JOHN GAMMEL, FBI Agent, DAMIEN FARLEY, DEA Agent, ANTHONY ROBERTO,
    DEA Agent, VINCENT KELLY, DEA Agent, JOSEPH DESMOND, DEA Agent,
    MICHAEL CUNIFF, DEA Agent, JAMES SOILES, DEA Agent, THOMAS QUIGLEY,
    Massachusetts State Police, JOHN AND JANE DOES 1-20, Defendants: Anita
    Johnson, United States Attorney's Office, Boston, MA.

    For THOMAS QUIGLEY, Massachusetts State Police, Defendant: Marini
    Torres-Benson, Office of the Attorney General, Boston, MA.

    JUDGES: Robert E. Keeton, United States District Judge.

    OPINIONBY: Robert E. Keeton

    OPINION: [*245] Memorandum and Order

    March 5, 2002

    I. Pending Matters

    Pending for decision are the matters associated with the following
    filings:

    (1) Federal Defendants' Motion to Dismiss (Docket No. 21, filed July
    10, 2001), with accompanying memorandum in support (Docket No. 22,
    filed July 10, 2001);

    (2) Thomas Quigley's Motion to Dismiss or for Judgment on the
    Pleadings (Docket No. 77, filed November 7, 2001), with accompanying
    memorandum in support (Docket No. 18, filed June 12, 2001);

    [*246] (3) Plaintiff's Response in Opposition to Motion to Dismiss
    (Docket No. 50, filed November 2, 2001); [**2]

    (4) Plaintiff's Motion for Disclosure and Production of Newly
    Discovered Documents Pursuant to F.R.C.P. Rule 26 and Rule 34 (Docket
    No. 53, filed December 3, 2001);

    (5) Plaintiff's Motion for Disclosure and Production of Newly
    Discovered Documents Pursuant to F.R.C.P. Rule 26 and Rule 34 (Docket
    No. 56, filed December 6, 2001);

    (6) Plaintiff's Motion to Clarify Medical Term Artifact (Docket No.
    57, filed December 20, 2001);

    (7) Plaintiff's Motion to Offer Caselaw to Prohibit Defense Attorneys
    from Protection of Defendants who Continue to Conspire Together in
    Furtherance of Conspiracy and Conspiracy of Silence to Cover Up
    Discovery (Docket No. 59, filed January 7, 2002);

    (8) Plaintiff's Notice via Sharing an Attorney with Original
    Defendants and Also via Identify of Interest with Originally Named
    Defendants (Docket No. 60, filed January 7, 2002);

    (9) Plaintiff's Motion of Disclosure and Production of Newly
    Discovered Documents re: United States Patent Number: 5,629,678 of
    Human Implants of Tracking Devices and Other State of the Art
    Capabilities, All Being Disclosed Pursuant to Fed. R. Civ. P. Rule 26
    and Rule 34 (Docket No. 61, filed January 7, 2002);

    (10) Plaintiff's Response [**3] in Opposition to Motion to Dismiss
    (Docket No. 64, filed January 10, 2002);

    (11) Plaintiff's Motion to Clarify Medical Term Artifact (Docket No.
    62, filed January 10, 2002);

    (12) Defendants' Reply to Marino's Opposition to Dismissal (Docket No.
    71, filed January 24, 2002); and

    (13) Federal Defendants' Motion to Dismiss (Docket No. 72, filed
    February 7, 2002), with accompanying memorandum in support (Docket No.
    73, filed February 7, 2002);

    (14) Plaintiff's Additional Memorandum of Law in Support of Motion to
    Dismiss (Docket No. 75, filed February 19, 2002); and

    (15) Plaintiff's Motion of Newly Discovered Evidence Offered Pursuant
    to Fed. R. Civ. P. Rule 26 and Rule 34 (Docket No. 76, filed February
    19, 2002).

    II. Facts Alleged in the Complaint

    The state and federal officials named as defendants in this case have
    all moved for dismissal pursuant to various subsections of Rule 12 of
    the Federal Rules of Civil Procedure. I assume all well-pleaded facts
    are as alleged in the complaint, and draw all-reasonable inferences in
    favor of the plaintiff. See Washington Legal Foundation v.
    Massachusetts Bar Foundation, 993 F.2d 962, 971 (1st Cir.1993).

    The facts, as [**4] recited in the Complaint, are as follows:
    12. On or about the 24th day of November 1996, at approximately 1:30
    a.m. The Plaintiff was admitted, through the Emergency room, at
    Massachusetts General Hospital (Massachusetts general Hospital) with a
    gunshot wound to his lower back buttocks area.

    13. Plaintiff was transported to Massachusetts General Hospital by the
    Med Trans. Ambulance service.

    14. Plaintiff was initially examined at approximately 2:00 a.m. by
    attending Trauma Physician RALPH LOUNSBURRY WARREN, M.D. Surgeon.

    15. DOCTOR Warren directed, and caused to be carried out, numerous
    x-rays, MRI's CT-Scans, and various [*247] other tests to determine
    damage to internal organs and ascertain location of projectile.

    16. Upon completing a battery of tests, Plaintiff was transferred for
    surgery to undergo surgery to extricate projectile and conduct a
    Laprascopic Exploration procedure.

    17. Surgical preparation began on Plaintiff at approximately 7:00 a.m.
    on November 24, 1996.

    18. General anesthesia was delivered and [unconsciousness] [sic]
    inducted in Plaintiff at approximately 8:10 a.m.

    19. During Plaintiff's surgery, an unknown [**5] law enforcement
    agent John Doe or agents were in the operating room during Plaintiff's
    surgery to supervise the removal of a bullet (projectile) from
    Plaintiff.

    20. Once projectile was extracted from Plaintiff, it was turned over
    to Defendant Doe One, Law Enforcement Agent(s).

    21. At approximately 10:00 a.m., Plaintiff was taken from surgery to
    Massachusetts General Hospital Recovery/Intensive Care Unit.

    22. Between the hours of 10:00 and 11:00 a.m., Plaintiff was
    transferred from the Recovery/Intensive Care Unit to a general
    residence area where Plaintiff was assigned a two (2) person room.

    23. Once Plaintiff regained consciousness and his cognitive skills
    returned, he noticed that his right leg had been shaved.

    24. Plaintiff was advised by the attending nurse [Name Unknown] [sic]
    that the Law Enforcement ordered specimens taken from Plaintiff which
    accounted for his shaven leg.

    25. On or about the 24th day of November, 1996, between the hours of
    approximately 12:00 p.m. and 3:00 p.m., Plaintiff was interviewed by
    Massachusetts General Hospital staff regarding his financial status
    and ability to pay incurred hospital bills.

    26. Shortly [**6] after being interviewed by Massachusetts General
    Hospital staff, as stated in paragraph number twenty (25) [sic] above,
    Plaintiff was advised by Massachusetts General Hospital personnel that
    the Plaintiff was being discharged from the hospital due to
    Plaintiff's inability pay [sic] medical costs.

    27. Plaintiff was discharged from Massachusetts General Hospital. On
    November 25, 1996, at approximately 2:41 p.m.

    28. At approximately 3:00 p.m. Plaintiff was picked up at
    Massachusetts General Hospital by family and friends.

    29. On or about the 27th day of November 1996, at approximately 9:00
    p.m. Plaintiff was again admitted at the Emergency Room of
    Massachusetts General Hospital suffering from Abdominal Infection and
    fever due to the previously incurred gunshot wound.

    30. Upon arrival at Massachusetts General Hospital, Plaintiff was
    examined by attending Trauma Physician and a wound swab and blood
    cultures were conducted.

    31. Plaintiff, was subsequently prescribed medication by Massachusetts
    General Hospital doctor(s), which included medication to combat
    infection and control pain.

    32. Plaintiff left Massachusetts General Hospital after being seen by
    the [**7] medical staff and prescribed medication.

    [*248] 33. On or about the 28th day of November 1996, at
    approximately 12:32 a.m. Plaintiff was admitted for a 3rd time at the
    Massachusetts General Hospital Emergency Room, suffering from severe
    Abdominal Infection and high fever.

    34. Plaintiff was examined by attending trauma physician, JONATHAN N.
    ADLER, M.D., who ordered, and caused to be carried out, X-rays of
    Plaintiff.

    35. Plaintiff was also seen by and spoke with two (2) other medical
    staff from time to time. Those being:

    PATRICK JACKSON, M.D. and Doctor LUKE MORONE.

    36. Plaintiff was transferred to the Radiology Department at
    approximately 2:00 a.m. where Plaintiff was seen by Radiologists MARK
    J. RIEUMONT, M.D. and SUSIE Y. KIM.

    37. Radiologists RIEUMONT and KlM conducted x-rays of Plaintiff, the
    results of which were received by Plaintiff, through Collateral
    Litigation, and showed the following:
    (A). No definite Pneumonia.

    (B). On the lateral view, there is a "linear opacity" in the abdomen
    which most likely represents and "artifact".


    38. Upon Completion of x-rays, the Plaintiff [**8] left Massachusetts
    General Hospital at approximately 3:00. a.m. on November 28, 1996.

    39. On or about the 15th day of December, 1996, Plaintiff and a
    companion (Charles McConnell), were at the Logan International Airport
    ("L.I.A."), East Boston Massachusetts.

    40. At approximately 10:00 a.m. while exiting the Logan International
    Airport, the Plaintiff was confronted by several gun wielding
    individuals, claiming to be law enforcement agents.

    41. Plaintiff was forced to lie down where he was searched, handcuffed
    and placed into custody by these agents.

    42. Defendants GAMMEL, FARLEY, ROBERTO, KELLY, PETERSON, DESMOND,
    CUNIFF, SOILES, QUIGLEY and several JOHN DOES AND JANE DOES, took part
    in the arrest of Plaintiff stated in paragraphs number forty (40) and
    forty-one (41) above.

    43. While in the custody of agents, Plaintiff was approached by
    Defendant ROBERTO, who attempted to gain Plaintiff's authorization and
    signature on a document.

    44. The document stated in paragraph forty-three (43) above was
    purporting to be an "authorization" for the surgical removal of an
    electronic device from Plaintiff's body.

    45. Defendant [**9] ROBERTO, informed Plaintiff, that Plaintiff had
    been implanted with an "a microchip tracking device" and law
    enforcement (Drug Enforcement Agency/Federal Bureau Investigation) had
    been tracing Plaintiff since on or about November 25, 1996.

    46. Defendant ROBERTO, further stated to Plaintiff that it was on "on
    loan" to Drug Enforcement Agency from the Central Intelligence Agency
    (C.I.A.) and was a sophisticated state of the art piece of equipment,
    cost a lot of money. Must be returned to the CIA.

    47. Defendant ROBERTO, assured Plaintiff that he (Plaintiff) would be
    released on bail if Plaintiff would [*249] sign documents and
    consent to surgical removal of device.

    48. Plaintiff refused to sign the consent forms. Defendant DESMOND
    stated "Nobody will ever believe we did this".

    49. Plaintiff was transported from Logan International Airport to the
    Drug Enforcement Agency's New England Field Division Office (Field
    Office) in Boston, Massachusetts.

    50. While being transported from the Logan International Airport to
    the field office, Defendant's FARLEY, and QUIGLEY, continued to entice
    Plaintiff to consent to the surgical [**10] removal of the device.

    51. Upon arrival at the Field Office, Defendant FARLEY, directed
    Plaintiff's attention to an office door within the Field Office
    building that displayed the name plate of one "Dr. STEIN."

    52. Defendant FARLEY, advised Plaintiff that Dr. STEIN was the
    individual responsible for conduction, or causing to have conducted,
    the surgical implantation of the device, in Plaintiff.

    53. While at the Field Office, Plaintiff was subjected to
    identification process (i.e. Finger printing, Photographs, etc...).
    While there Defendant SOILES stated "The implant in you, the devices
    capabilities are tracking and listening. We used the Massachusetts
    General Hospital Medical Doctors and Nurses and our own physician to
    do a clean implant while you were under General Anesthesia". Defendant
    JOHN GAMMEL agreed and said we knew where you were from Boston to
    Nevada to Arizona. State of the Art Device.

    54. Upon the completion of identification process Plaintiff was
    transported to the Braintree Police Station (Braintree) for housing.
    Defendants: DEA Agents; KELLY & PETERSON Transported Plaintiff and
    [**11] also tried to convince plaintiff to consent to removal of
    Device.

    55. While being taken from the Field Office to a vehicle for
    transportation to Braintree, one of the Principal Defendant's
    (possibly Defendant CUNIFF), informed Plaintiff that, "He (Plaintiff),
    was the only person with the device on the East Coast" and went on to
    mention another person implanted with the device on the "West Coast".

    56. During the discussion stated in paragraph number fifty-five (55),
    above this Defendant further mentioned the source of "device" as the
    Central Intelligence Agency.

    57. Plaintiff was subsequently transported to, and housed at the
    Braintree Station.

    58. On or about the 16th day of December 1996, Plaintiff was taken to
    the Boston Massachusetts Federal Building and arraigned on Federal
    criminal Charges before U.S. Magistrate Judge LAWRENCE COHEN.

    59. Plaintiff was transported from the Boston Federal Building, to the
    Wyatt detention facility in Central Falls, Rhode Island where he
    remained housed.

    60. On the 6th day of January 1997, Plaintiff was brought before the
    Honorable Magistrate Judge JUDGE ROBERT B. COLLINGS, U.S. District
    [**12] Court Judge, for the purpose of a Bond Hearing.

    [*250] 61. During the Bond Hearing stated in paragraph number sixty
    (60) above; Defendant FARLEY, testified that he heard the conversation
    at Logan International Airport between Defendant Roberto, and the
    Plaintiff in which Defendant ROBERTO, informed Plaintiff about the
    Plaintiff being implanted with a "device" which monitored Plaintiff
    activities.

    62. Defendant FARLEY, further testified that it was his belief that
    ROBERTO, was merely joking with the Plaintiff regarding the "device".

    63. Upon adjournment of the January 6th Bond Hearing Plaintiff was
    returned to the Central Falls Facility for housing.

    64. On June 14, 1999, a hearing was conducted (without the presence of
    Plaintiff) at the Federal Court Building Worcester, Massachusetts
    before the Honorable NATHANIEL M. GORTON, U.S. District Court Judge,
    at which time Judge GORTON, ordered Assistant U.S. Attorney's JEFFREY
    AUERHAHN, and CYNTHIA YOUNG, to ascertain whether or not agent's
    discussed a device being implanted in Plaintiff, and whether such
    implantation did occur.

    65. As a result of Judge [**13] GORTON'S, June 14th Court Order the
    record reflects that certain Defendant's did in fact advise Plaintiff
    that a device was implanted in him, however, these Defendants were
    allegedly joking and there was no implantation of such device in
    Plaintiff.

    66. On the 25th day of May, 2000, the Honorable JOSEPH TAURO, United
    States District Judge, ordered the government to cause to be affected
    and M.R.I. on Plaintiff to conclusively ascertain the existence of any
    electronic device implanted in the Plaintiff.

    67. Judge TAURO's, May 25th Judicial order stated in paragraphs number
    66 above, has to this date not been effectuated.

    68. Plaintiff was under Federal/State investigation and surveillance,
    and monitoring at the time of and prior to Plaintiff's admission at
    Massachusetts General Hospital for gunshot wound.

    69. As a product of discovery process conducted in a malpractice
    lawsuit against Massachusetts general Hospital, et al. (Case No:
    99-5655H), Plaintiff has procured conclusive medical evidence that
    there did exist a foreign "artifact" inside Plaintiff at time of
    x-rays conducted at Massachusetts General Hospital, as set forth in
    paragraph [**14] numbers 36 and 37 above. This device remains inside
    Plaintiff.


    Docket No. 1 at 5-14.

    The docket entries in United States v. Vincent Portalla, a.k.a.
    Vincent Marino, Criminal No. 97-10026 for the dates referred to in
    paragraphs 58, 60-62, and 66 of the complaint are reproduced in
    Attachment A. The docket entries in United States v. Vincent Michael
    Marino, a.k.a. Gigi Portalla, Criminal No. 97-40009 for the
    proceedings of June 14, 1999, referred to in paragraphs 64 and 65 of
    the complaint are also reproduced in Attachment A

    III. Interpretation of Pro-Se Pleadings

    This court has a duty to construe pro se submissions with liberality,
    and does so in this case as in others. See Hughes v. Rowe, 449 U.S. 5,
    9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam); Haines v.
    Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 [*251] S. Ct. 594
    (1972) (per curiam); see also Lema v. United States, 987 F.2d 48, 54
    n. 5 (1st Cir.1993). For this reason, even though the complaint is
    unclear in relation to the precise nature of the claims being
    asserted, I treat the complaint as sufficient to give notice to the
    defendants and the court [**15] that the plaintiff is making Bivens
    claims against federal defendants, see Bivens v. Six Unknown Named
    Agents of Federal Bureau of Narcotics, 403 U.S. 388, 29 L. Ed. 2d 619,
    91 S. Ct. 1999 (1971), and claims against state defendants remediable
    under 42 U.S.C. 1983.

    IV. Verification of Pleadings

    The court's obligation to accept alleged facts as true for the
    purposes of rulings on a motion to dismiss is limited to well-pleaded
    facts. Washington Legal Foundation, 993 F.2d at 971. Whether facts are
    well-pleaded may depend on (1) the nature of those facts, (2) whether
    reasonably expectable sources of verification are identified and, when
    examined, do or do not verify the allegations, and (3) whether facts
    that are well-pleaded identify reasons to expect that records and
    witnesses who might verify allegations are accessible to a defendant
    but not to the plaintiff. See, e.g., New England Data Servs., Inc. v.
    Becher, 829 F.2d 286 (1st Cir. 1987).

    The facts alleged in the complaint in this case include allegations
    that multiple hearings were held before two magistrate judges and two
    district judges of [**16] this court during which rulings were made.
    The record now before the undersigned judge, however, does not include
    docket entries, reporter transcripts, or memoranda and orders that
    would either verify or show falsity of these allegations. Thus, on the
    record now before me, I cannot determine whether many of these alleged
    facts are well-pleaded facts.
    For example, plaintiff asserts in paragraph 66 that Judge Tauro
    ordered the government to cause to be affected and M.R.I. on Plaintiff
    to conclusively ascertain the existence of any electronic device
    implanted in the Plaintiff


    on May 25, 2000. The record from plaintiff's criminal case, over which
    Judge Tauro presided, does reflect that the plaintiff appeared before
    Judge Tauro on that date, entered a guilty plea, and was sentenced.
    Docket Nos. 102, 103, 104, and 106 in Criminal No. 97-10026. Nothing
    in the record now before me suggests or refers to, even obliquely, any
    statements by anyone at the hearing regarding an M.R.I. Therefore, I
    cannot at this time determine that the allegations in paragraph 66 are
    not well-pleaded. Also, I cannot determine whether the rule of
    pleading explained in Becher does or does not apply. [**17]

    V. Defendants' Motions to Dismiss

    The federal defendants in this case have filed two separate Motions to
    Dismiss (Docket Nos. 21 and 72). The later motion was filed on behalf
    of three defendants who were served after the first motion was filed.
    Because the memoranda supporting the motions make identical
    substantive arguments, I treat them together.

    A chief contention of the federal defendants is that plaintiff filed
    this suit after his claims were barred under the applicable statute of
    limitation. The federal defendants also assert that the action against
    them is barred by the doctrine of sovereign immunity, that the
    complaint fails to state a claim against them because it is cast as a
    Section 1983 claim, and that the complaint should be dismissed as
    frivolous.

    The Commonwealth of Massachusetts urges that the case against Lt.
    Thomas Quigley in his official capacity be dismissed because it is a
    claim for damages against [*252] the state that is barred by the
    Commonwealth's immunity under the Eleventh Amendment and that, in any
    event, the complaint fails to state a claim on which relief may be
    granted.

    VI. More on the Claim Against the Federal Defendants

    A. Failure to State [**18] a Claim

    To the extent that the federal defendants seek dismissal because the
    complaint is cast as a claim under 42 U.S.C. 1983, their request
    must be denied. As is noted above, pro se plaintiffs are not held to
    the same strict standards of pleading that parties who are represented
    by counsel are expected to meet. The court therefore treats the claims
    against the federal defendants as Bivens claims and will not dismiss
    this action merely because the complaint does not explicitly say that
    plaintiff is asserting Bivens claims.

    B. Frivolousness

    The federal defendants characterize plaintiff's allegations as
    "fantastic and delusional," and urge that the court dismiss the civil
    action for lack of jurisdiction under Rule 12(b)(1) of the Federal
    Rules of Civil Procedure. The cases cited by the federal defendants,
    however, do not support the contention that a court has authority to
    make such an order without a showing of grounds for concluding that no
    reasonable adjudicator could credit enough of the allegations to
    determine that a genuine dispute of material fact exists.

    Bell v. Hood and its progeny arguably support a dismissal of federal
    claims [**19] when those claims are patently frivolous as a matter of
    law. 327 U.S. 678, 683, 66 S. Ct. 773, 90 L. Ed. 939 (1946). In Bell,
    however, the Court did not determine whether the alleged facts were
    credible. Rather, noting that "if the allegations have any foundation
    in truth, the plaintiffs' legal rights have been ruthlessly violated,"
    the Court reversed the district court's dismissal. Id.

    The case on which the federal defendants rely most stridently, Neitzke
    v. Williams, is wholly inapplicable on this issue. 490 U.S. 319, 109
    S. Ct. 1827, 104 L. Ed. 2d 338 (1989). In that case, the Court
    interpreted the term "frivolous" as it appears in 28 U.S.C. 1915.
    That section, which has since been amended in ways that are not
    relevant here, allows a district court to dismiss a civil action in
    which the plaintiff is proceeding in forma pauperis whenever the court
    determines that the action is frivolous. The civil docket sheet for
    this civil action and the stamp placed on the Complaint by the office
    of the Clerk of this court both indicate that the plaintiff paid the $
    150.00 filing fee. Therefore, Section 1915 and Neitzke are
    inapplicable here.

    C. Sovereign Immunity of Federal Defendants [**20] Sued in their
    Official Capacities

    Actions brought against federal employees in their official capacities
    are actions against the United States. 28 U.S.C. 2679; Hawaii v.
    Gordon, 373 U.S. 57, 10 L. Ed. 2d 191, 83 S. Ct. 1052 (1963). Actions
    against the United States are allowed only in the limited situations
    where the United States has, by a specific statutory provision, waived
    its immunity. Bivens actions, therefore, which do not arise under any
    statute, may not be brought against the United States or its officials
    acting in their official capacity. Rivera v. Riley, 209 F.3d 24, 28
    (1st Cir. 2000).

    In limited circumstances, the United States has waived its immunity
    with respect to the intentional torts of federal law enforcement
    officials. See 28 U.S.C. 2680. That waiver, however, requires that a
    claimant file a claim with the relevant federal agency within two
    years after the claim has occurred. 28 U.S.C. 2401; [*253] Roman
    v. Townsend, 224 F.3d 24, 27 (1st Cir. 2000). Only after such a claim
    is denied may a claimant resort to a suit [**21] against the United
    States. 28 U.S.C. 2675.

    Plaintiff has not asserted that he filed a claim with the Drug
    Enforcement Agency, Federal Bureau of Investigations, Central
    Intelligence Agency, or any other federal entity. This failure
    precludes this court from accepting this civil action as a suit for
    damages against the United States and its officers in official
    capacities.

    Of course, the immunity of the United States does not preclude this
    court from issuing an appropriate writ if one is required by the facts
    of the case and applicable law, and does not preclude the maintenance
    of a Bivens action against the federal officials in their individual
    capacities. See Rivera v. Riley, 209 F.3d 24, 28 (1st Cir. 2000).

    D. Timeliness

    Ordinarily a federal court looks to the most closely analogous state
    statute of limitation governing personal injury claims for guidance as
    to the period of limitation to be applied to Bivens claims and Section
    1983 claims. Wilson v. Garcia, 471 U.S. 261, 276-80, 85 L. Ed. 2d 254,
    105 S. Ct. 1938 (1985) (Section 1983 claims); Roman v. Townsend, 224
    F.3d 24, 29 (1st Cir. 2000) [**22] (Bivens actions). Massachusetts
    has a three-year limitation period for personal injuries claims. Mass.
    Gen. Laws c. 260, 2A.

    Even when the period of limitation is determined by analogy to state
    law, the determination regarding the time of accrual of a cause of
    action is governed by federal law. Nieves v. McSweeney, 241 F.3d 46,
    52 (1st Cir. 2000). In this circuit, Bivens and Section 1983 claims
    accrue at the moment the plaintiff knows, or has reason to know, of
    the injury that is the basis for the claims. Id. See also Brackett v.
    United States, 270 F.3d 60, 68 n.4 (1st Cir. 2001) ("in tort law under
    the discovery rule, the running of the statute of limitations does not
    begin until the fact of the injury becomes known, or should have
    become known in the exercise of due diligence"). Federal courts may
    adopt any state tolling rules that are not at odds with federal law.
    Board of Regents v. Tomanio, 446 U.S. 478, 483-486, 64 L. Ed. 2d 440,
    100 S. Ct. 1790 (1980).

    The federal defendants assert that plaintiff's claim accrued on
    December 15, 1996, (more than two years before plaintiff initiated
    this civil action) when Defendant [**23] Roberto informed plaintiff
    that "a microchip tracking device" was implanted in plaintiff, and
    requested plaintiff's authorization for its removal. The court,
    however, cannot at the same time credit federal defendants' assertion
    that plaintiff's claim about the planting of a "microchip tracking
    device" is frivolous and credit federal defendants' assertion that at
    the time of that incident plaintiff knew or should have known "the
    fact of injury" to the plaintiff.

    Plaintiff asserts that he is the victim of an on-going conspiracy and
    that the statute of limitation, therefore, has not yet run. Docket No.
    50 at 33-35. In the alternative, plaintiff argues that the statute
    should be tolled because he is incarcerated in a federal penitentiary,
    has limited access to legal materials, and, at least during the
    pendency of his criminal case, was incarcerated in a facility that
    provided no access whatsoever to legal materials. Id. at 35-36.
    Finally, plaintiff argues that his cause of action did not accrue
    until November 24, 1999, when he reviewed an x-ray film report. Id. at
    73.

    Another issue arises from the fact that the federal defendants, under
    oath at the plaintiff's criminal trial, [**24] Docket No. 1 P62 &
    65, repudiated the comments allegedly made on December 15, 1996. In
    these [*254] circumstances, I cannot at this time determine whether
    plaintiff is or is not entitled to the benefit of a doctrine of
    equitable tolling that would stand in the way of dismissal of this
    civil action. See Andrews v. Arkwright Mutual Ins. Co., 423 Mass.
    1021, 1021, 673 N.E.2d 40, 41 (Mass. 1996).

    VII. More on the Claims Against the State Defendant

    The state defendant, Lt. Thomas Quigley, is sued in both his
    individual and official capacities. The Commonwealth of Massachusetts
    moved to dismiss the claims brought against Lt. Quigley in his
    official capacity only (Docket No. 18, filed June 12, 2001; Docket No.
    77, filed November 7, 2001).

    The Commonwealth of Massachusetts is the real party in interest when a
    state police officer is sued for damages in his official capacity.
    Hafer v. Melo, 502 U.S. 21, 25, 116 L. Ed. 2d 301, 112 S. Ct. 358
    (1991). It is well-established that a state is not amenable to suit
    under 42 U.S.C. 1983 because a state is not a "person" within the
    meaning of that statute. Will v. Michigan Dept. of State Police, 491
    U.S. 58, 71, 105 L. Ed. 2d 45, 109 S. Ct. 2304 (1989). [**25] For
    these reasons, the Order below DISMISSES the claims that seek monetary
    damages against the Commonwealth and against Lt. Quigley in his
    official capacity.

    Although injunctive relief may be available against state officials
    sued in their official capacities, see, e.g., Ex Parte Young, 209 U.S.
    123, 52 L. Ed. 714, 28 S. Ct. 441 (1908), plaintiff's complaint fails
    to state a viable claim for injunctive relief. The facts recited
    above, viewed in the light most favorable to the plaintiff do not
    establish that Lt. Quigley is engaged in a continuing violation of
    federal law. Edelman v. Jordan, 415 U.S. 651, 39 L. Ed. 2d 662, 94 S.
    Ct. 1347 (1974). Injunctive relief, which is prospective in nature, is
    not available to remedy past violations. Id. For these reasons, the
    Order below DISMISSES claims for injunctive relief against Lt. Quigley
    in his official capacity.

    VIII. Plaintiff's Motions

    A. Plaintiff's Motions for Disclosure and Production of Newly
    Discovered Documents Pursuant to F.R.C.P. 26 and Rule 34 (Docket No.
    53, filed December 3, 2001; Docket No. 56, filed December 6, 2001; and
    Docket No. 76, filed February 19, 2002)

    In Docket [**26] Numbers 53 and 56, which are identical in all
    respects, plaintiff seeks to place two documents into evidence. In
    Docket Number 76, plaintiff seeks to place various testimony and other
    exhibits into evidence. At the present time, no motion for summary
    judgment is before this court. Also, plaintiff has not identified any
    other pending matter as to which the testimony presented in Docket No.
    76 would be appropriately received in evidence.

    For these reasons, the Order below DENIES Docket Nos. 53, 56, and 76.
    This ruling is without prejudice to the later filing of an appropriate
    request in support of or in opposition to a motion for summary
    judgment or to the introduction of this evidence for a legitimate
    reason at trial or any other hearing.

    B. Plaintiff's Motion of Disclosure and Production of Newly Discovered
    Documents re: United States Patent Number: 5,629,678 of Human Implants
    of Tracking Devices and Other State of the Art Capabilities. All Being
    Disclosed Pursuant to Fed. R. Civ. P. Rule 26 and Rule 34 (Docket No.
    61, filed January 7, 2002)

    As the caption above indicates, in Docket Number 61, plaintiff seeks
    to place certain information related to various patents and inventions
    [**27] into evidence. This information is not relevant to any issue
    [*255] now before this court. For this reason, the Order below DENIES
    Docket No. 61.

    C. Motions to Clarify Medical Term "Artifact" (Docket Nos. 57, filed
    December 20, 2001 and 62, filed January 10, 2002)

    In Docket Numbers 57 and 62, which are identical in all respects,
    plaintiff seeks to have the court clarify the term "artifact."
    Plaintiff asserts that this term appears on at least one of his
    medical records.

    The definition of the term "artifact" in general is not decisive of
    any issue now before the court. The meaning of that term as it appears
    on plaintiff's medical record or records, however, may become
    important in relation to a motion for summary judgment, at a trial on
    the merits, or at an evidentiary hearing at which this evidence could
    be received for a legitimate purpose.

    For these reasons, the Order below DENIES Docket Nos. 57 and 62.

    D. Motion to Offer Caselaw to Prohibit Defense Attorneys from
    Protection of Defendants who Continue to Conspire Together in
    Furtherance of Conspiracy and Conspiracy of Silence to Cover Up
    Discovery (Docket No. 59, filed January 7, 2002)

    The Order below DENIES Docket [**28] No. 59 as a Motion. The court
    treats this pro-se submission as a memorandum of law, however and has
    considered plaintiff's arguments of law presented in this document.

    E. Motion of Notice via sharing an Attorney [AUSA Anita Johnson] with
    Original Defendants and also via Identity of Interest with Originally
    Named Defendants (Docket No. 60, filed January 7, 2002)

    The Order below DISMISSES Docket No. 60 as moot in light of the
    Statement of Defendant Regarding Service on Individuals (Docket No.
    67, filed January 10, 2002) and the Declaration of Assistant U.S.
    Attorney Regarding Service (Docket No. 68, filed January 10, 2002).
    The Declaration indicates that the two named defendants have now been
    served.

    IX. Remaining Issues

    In the order below, the defendants are directed to file their answer
    or answers or other responsive pleadings no later than Monday, April
    1, 2002.

    Any party or attorney with knowledge of the x-ray and radiology report
    referred to in P37 of the complaint and who asserts or may assert a
    privilege with respect to those documents may file an application to
    file the documents under seal.

    In the Order below, any party receiving notice of this Order and
    [**29] having custody of any documents, medical records, x-rays, or
    other evidence related to the claims asserted in this civil action is
    directed to preserve those items pending a further order of this
    court.

    All parties are directed to file a proposed schedule for the efficient
    adjudication of this matter no later than April 15, 2002.

    ORDER

    For the reasons explained above, it is ORDERED:

    (1) Federal Defendants' Motions to Dismiss (Docket No. 21, filed July
    10, 2001 and Docket No. 72, filed February 7, 2002) are ALLOWED to the
    extent that the complaint seeks damages from federal officials acting
    in their official capacity, and are otherwise DENIED;

    (2) Thomas Quigley's Motion to Dismiss (Docket No. 77, filed November
    7, 2001) is ALLOWED to the extent that it seeks a dismissal of the
    case against Lt. Quigley in his official capacity, and is otherwise
    DENIED;

    [*256] (3) Plaintiff's Motions for Disclosure and Production of
    Newly Discovered Documents Pursuant to F.R.C.P. Rule 26 and Rule 34
    (Docket No. 53, filed December 3, 2001 and Docket No. 56, filed
    December 6, 2001) are DENIED;

    (4) Plaintiff's Motion of Newly Discovered Evidence Offered Pursuant
    to Fed. R. Civ. P. Rule 26 and Rule [**30] 34 (Docket No. 76, filed
    February 19, 2002) is DENIED;

    (5) Plaintiff's Disclosure and Production of Newly Discovered
    Documents (Docket No. 61, filed January 7, 2002) is DENIED;

    (6) Plaintiff's Motions to Clarify Medical Term Artifact (Docket No.
    57, filed December 20, 2001 and Docket No. 62, filed January 10, 2002)
    are DENIED;

    (7) Plaintiff's Motion to Offer Caselaw to Prohibit Defense Attorneys
    from Protection of Defendants who Continue to Conspire Together in
    Furtherance of Conspiracy and Conspiracy of Silence to Cover Up
    Discovery (Docket No. 59, filed January 7, 2002) is DENIED;

    (8) Plaintiff's Notice via Sharing an Attorney with Original
    Defendants and Also via Identify of Interest with Originally Named
    Defendants (Docket No. 60, filed January 7, 2002) is DISMISSED as
    moot;

    (9) Any party receiving notice of this Order and having custody of any
    documents, medical records, x-rays, or other evidence related to the
    claims asserted in this civil action is directed to preserve those
    items pending a further order of this court

    (10) All defendants are directed to file their answer or answers or
    other responsive pleadings no later than Monday, April 1, 2002. All
    parties are directed [**31] to file a proposed schedule for the
    efficient adjudication of this matter no later than April 15, 2002.

    Robert E. Keeton

    United States District Judge

    Attachment A

    Reproduction of Docket Entries in United States v. Vincent Portalla,
    a.k.a. Gigi, a.k.a. Vincent Marino, Criminal No. 97-10026, for the
    dates identified in the Complaint in Civil Action No. 01-10116-REKDate
    Docket # Docket Entry

    12/16/96 3 MOTION by USA as to Vincent Portalla, Charles McConnell to
    unseal the Complaint, supporting Affidavit, filed.
    [1:96-m-171] (ktb) [Entry date 12/27/96]

    12/16/96 -- Mag. Judge Lawrence P. Cohen. ENDORSED ORDER as to Vincent
    Portalla, Charles McConnell: granting [3-1] motion to
    unseal the Complaint, supporting Affidavit as to Vincent
    Portalla (1). [1:96-m-171] (ktb) [Entry date 12/27/96]

    12/16/96 -- Initial appearance as to Vincent Portalla, Charles
    McConnell held (Defendant informed of rights.).
    [1:96-m-171] (ktb) [Entry date 12/27/96]

    12/16/96 -- MOTION made in open court by USA as to Vincent Portalla,
    Charles McConnell, for detention, to continue.
    [1:96-m-171] (ktb) [Entry date 12/27/96]

    12/16/96 -- Mag. Judge Lawrence P. Cohen. ORAL ORDER as to Vincent
    Portalla, Charles McConnell granting [0-0] oral motion to
    continue as to Vincent Portalla (1), Charles McConnell (2).
    [1:96-m-171] (ktb) [Entry date 12/27/96]

    12/16/96 4 Mag. Judge Lawrence P. Cohen. CLERK'S NOTES as to Vincent
    Portalla re: Initial Appearance; set Detention Hearing for
    2:00 p.m. on 12/18/96 for Vincent Portalla Court Reporter:
    TAPE [1:96-m-171] (ktb) [Entry date 12/27/96]

    . . .

    01/06/97 -- Preliminary Examination as to Vincent Portalla held.
    [1:96-m-171] (jam) [Entry date 01/09/97]

    01/06/97 15 Mag. Judge Robert B. Collings for Mag. Judge
    Cohen. CLERK'S NOTES as to Vincent Portalla, re:
    Preliminary Exam. and Evidentiary Hearing held. Probable
    cause found. Detention taken under advisement.; Court
    Reporter: Tape [1:96-m-171] (jam) [Entry
    date 01/09/97]

    01/06/97 16 NOTICE of Appearance of counsel for Vincent Portalla, by
    Attorney Robert L. Sheketoff. [1:96-m-171] (jam)
    [Entry date 01/09/97]

    01/06/97 17 Exhibit list by USA as to Vincent Portalla, filed.
    [1:96-m-171] (jam) [Entry date 01/09/97]

    05/25/00 -- Change of Plea Hearing as to Vincent Portalla held. (cmg)
    [Entry date 06/01/00]

    05/25/00 -- PLEA entered by Vincent Portalla. Court accepts plea.
    Guilty: Vincent Portalla (1) count(s) 4s (cmg)
    [Entry date 06/01/00]

    05/25/00 102 Judge Joseph L. Tauro. CLERK'S NOTES as to Vincent
    Portalla, re: change of plea. Deft present w/counsel for
    change of plea. Court conducts plea colloquy. Deft enters
    plea of guilty to Count 4. Counts 1,2,3 and 5 to be
    dismissed by Govt upon sentencing. Govt's factual basis for
    plea. Court accepts plea. Disposition immediately to be
    concurrent w/D.J. Gorton sentence. P.S.R. is not completed.
    Court Reporter: Teri Gibson (cmg) [Entry date 06/01/00]

    05/25/00 -- Sentencing held Vincent Portalla (1) count(s) 4s. (cmg)
    [Entry date 06/01/00]

    05/25/00 103 Judge Joseph L. Tauro. CLERK'S NOTES as to Vincent
    Portalla, re: sentencing. AT request of deft and Govt's
    attorney, Court proceeds to sentencing phase. Joint
    recommendation of parties is adopted by the Court and
    imposed as follows: 10 years custody Atty. Gen. on Count 4
    to be served currently w/CR 97-40009, 10.3 years Supervised
    Release. No Fine. $ 100 special assessment. Court
    recommends that deft serve his sentence as close to
    Massachusetts as possible. Court Reporter: Teri Gibson
    (cmg) [Entry date 06/01/00]

    05/25/00 104 Plea Agreement as to Vincent Portalla, Marked as Exhibit
    I,
    FILED.(c/s) (cmg) [Entry date 06/01/00]
    [**32]

    [*257] Reproduction of Docket Entries in United States v. Vincent
    Michael Marino, Criminal No. 97-40009, for the dates identified in the
    Complaint in Civil Action No. 01-10116-REKDate Docket # Docket Entry
    06/14/99 -- Status conference as to Robert F. Carrozza, Michael P.
    Romano Sr., Anthony Ciampi, John J. Patti III, Eugene A.
    Rida Jr., Vincent Michael Marino and Nazzaro Ralph Scarpa
    held. (jb) [Entry date 06/23/99]

    06/14/99 903 Judge Nathaniel M. Gorton. CLERK'S NOTES as to Robert F.
    Carrozza, Michael P. Romano Sr., Anthony Ciampi, John J.
    Patti III, Eugene A. Rida Jr., Vincent Michael Marino,
    Nazzaro Ralph Scarpa, re: status conference; case called;
    counsel and defendant Carrozza pro-se appear for status
    conference. Hearing held on motions. Motion # 843, 861, 869
    and 876 DENIED. Motions # 844, 858, 870 879 and 881
    ALLOWED. Final status conference set for 9/8/99 at 3:30 pm.
    set final status conference for 3:30 pm on 9/8/99 for
    Robert F. Carrozza, for Michael P. Romano Sr., for Anthony
    Ciampi, for John J. III, for Eugene A. Rida Jr., for
    Vincent Michael Marino, Nazzaro Ralph Scarpa; Court
    Reporter: C. Dahlstrom. (jb) [Entry date 06/23/99]
    [**33]

  2. #2
    Junior Member
    Join Date
    May 2011
    Posts
    1

    Default So where does he stand?

    If he does have an "Artifact", then he is just supposed to live with it?

    Any idea if anything new is going on with him?

    Wonder how his health is.

  3. #3
    Super Moderator
    Join Date
    May 2005
    Location
    Massachusetts
    Posts
    37,134

    Default

    Since nothing has been added to this thread since 2004, I suspect we may just have to live without knowing.
    The above answer, whatever it is, assumes that no legally binding and enforceable contract or CBA says otherwise. If it does, then the terms of the contract or CBA apply.

  4. #4
    Super Moderator
    Join Date
    Apr 2007
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    Il.(near STL,Mo.)
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    14,675

    Default

    I'm going to close this thread since just got a recent post & I deleted 2 spam
    posts from this thread very early morning. This must be an interesting thread
    to post to.
    Too often we underestimate the power of a touch, a smile, a kind word, a listening ear, an honest compliment, or the smallest act of caring, all of which have the potential to turn a life around. Leo Buscaglia

    Live in peace with animals. Animals bring love to our hearts and warmth to our souls.

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