Opposition Brief — Bagley v. CMC Real Estate Corp.

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Supreme Court, U.S,

FILED

JAN 8 1992

No. 91-762

ee Susie |

IN THE

Supreme Court of the United States

October Term, 1991

HUGHES ANDERSON BAGLEY, JR.,

Petitioner-Plaintiff,

NORMAN PRINS; JAMES P. O'CONNOR;

DONALD E. MITCHELL; CMC REAL ESTATE

CORP.; and THE SOO LINE RAILROAD,

Respondents-Defendants.

RESPONDENTS CMC REAL ESTATE CORPORATION

AND THE SOO LINE RAILROAD'S

BRIEF IN OPPOSITION

TO PETITION FOR WRIT OF CERTIORARI

January 8, 1992

James C. Fowler

Attorney of Record

GRAHAM & DUNN

1420 Fifth Avenue, 33rd Floor

Seattle, Washington 98101-2390

(206) 624-8300

Attorneys for Respondents

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TABLE OF CONTENTS

It PAGE:

pe ee ee ys Sn a a er are |

eo Rs et, Fy gS - ri a be |

SUMMARY ° 1

FACTS : ss © & ee) os 6 4S 8 ee

A. Factual Background .....- 2

B. Procedural Background... . 7

Ze THE NINTH CIRCUIT'S DECISION IS IN

ACCORD WITH DEAKINS V. MONAGHAN AND

DOES NOT CONFLICT WITH THE SUPREME

COURT PRECEDENT CITED BY BAGLEY 10

A. The Ninth Circuit's Decision is

in Accord with This Court's

Decision in Deakins v.

os) a ce a ae A *

B. The Cases Cited by Bagley are

Miscited and/or

Distinguishable ...... 13

II. THE NINTH CIRCUIT'S DECISION IS IN

ACCORD WITH UNANIMOUS CASE LAW FROM

LOWER COURTS ...... +. +. -+ 20

Every Case Addressing This

Issue Agrees with the Ninth

CORGAS «4 a es 6 #& ws we. 23

No Court has Ruled in Favor of

Bagley's Position. .... 27

- Page ii -

C. The Cases Cited by Bagley are

Either Miscited or

Distinguishable ...... 28

III. THE NINTH CIRCUIT'S DECISION IS NOT

CONTRARY TO CASE LAW REGARDING

COLLATERAL ESTOPPEL ...... 37

IV. SOUND POLICY CONSIDERATIONS SUPPORT

THE NINTH CIRCUIT'S DECISION . . 40

CONCLUGION . 54+ 6 © ss + ss es ee Oe

Appendix - Complaint ......... la

- Page iii -

TABLE OF AUTHORITIES

SUPREME COURT CASES

Allen v. McCurry,

449 U.S. 90, 66 L.Ed.2d 308,

2023 8. CG. 411

ret ¢ « « i2, 13; 23, 29, 32

Carey v. Piphus,

435 U.S. 247, 55 L.Ed.2d 252,

98 S. Ct. 1042 (1978) oe «© @« s 39

Deakins v. Monaghan,

S54 Use. 193, 106 &. Ct. 523,

98 L.Ed.2d 529

ec. «6$0. 13, 12, 13, 20, 41

Fornaris v. Ridge Tool Co.,

400 U.S. 41, 91 8. Ct. 156,

) aceree 276 £1970) . .. 34, 38

Johnson v. Railway Express Agency,

421 U.S. 454, 44 L.Ed.2d 295,

95 S. Ct. 1716 (1975) » © « 20, 41

Pennsylvania Coal Company v. Mahon,

260 U.S. 393, 43 S&S. Ct. 156,

67 L.Ed. 322 (1922) a 2 a6, .af

United States v. Bagley,

473 U.S. 667, i105 S$. Ct. 3375,

Oy ueemsme 463 (1985) ..... 18

United States v. Kubrick,

444 U.S. iil, i100 S. Ct. 352,

62 L.Ed.2d 259 (1979) if oe tae fae re

U.S. v. Bagley,

105 S. Ct. 3375, 87 L.Ed.2d 481,

mee mums O67 (3965) . . 2 sw «© oo 7

- Page iv -

Williamson County Regional Planning

Commission v. Hamilton Bank,

473 U.S. 172, 105 S. Ct. 3108,

87 L.Ed.2d 126 (1985) . 14, 16, 17

Younger v. Harris,

401 U.S. 37, 91 S. Ct. 746,

a? Teotcae 669 (1971) .. + jak, i3

COURT OF APPEALS CASES

Bagley v. Lumpkin,

719 F.2d 1462

(9th Cir. 1983) = © «© «@ By fy OO

Bailey v. Ness,

733 F.2d 279 (3rd Cir. 1984) 23, 36

Crane v. Fauver,

762 F.24@ 325 (3rd Cir. 1985) .. 12

Connor v. Pickett,

522 F.2G S65 (Sth Cir. 1977) .. 22

Hadley v. Werner,

753 F.2d 514 (6th Cir. 1985) 24, 232

Jones v. Shankland,

800 F.2d 77 (6th Cir. 1986) 24, 32

Mastrachio v. Ricci,

498 F.2d 1257 (1st Cir. 1974),

cert. denied, 420 U.S. 909

es, |. Rr ee ae ee ee ee ee 23

McCurry v. Allen,

606 F.2d 795 (8th Cir. 1979)

rev'd on other grounds,

449 U.S.90, 101 S. Ct. 411,

66 L.Ed.2d 308

4. ere ° a + oe - ey

- Page v -

McNally v. Pulitzer Publishing Co.,

532 F.2d 69

(8th Cir. 1976) ° > oe? ae?

Muskegon Theaters, Inc. v. City of

Muskegon,

507 F.2d 199 (6th Cir. 1974) 34,

Prather v. Norman,

901 F.2d 915 (llth Cir. 1990)

Prince v. Wallace,

568 F.2d 1176 (5th Cir. 1978) ‘

Richardson v. Fleming,

651 F.2d 366 (5th Cir. 1981) 23,

Schweitzer v. Consolidated Rail Corp.,

758 F.2d 936 (3rd Cir. 1985),

cert. denied, 106 S. Ct. 183

Ses bo ts ae ee an

United States v. Bagley,

837 F.2d 371 (9th Cir. 1988) ie

Williams v. Red Bank Bd. of Ed.,

662 F.2d 1008 (3rd Cir. 1981)

Young v. Kenny,

887 F.2d 237 (9th Cir. 1989)

DISTRICT COURT CASES

Drum v. Nasuti,

648 F. Supp. 888

(E.D. Pa. 1986) . 24,

Triplett v. Azordegan,

478 F. Supp. 872 (N.D. Iowa,

oy, —_—er a6, 26, 36,33;

- Page vi -

STA COURT DECISIONS

Lafferty v. Nichel

663 P.2d 168 (Wy. 1983) coe won ae

Moeller v. State,

474 N.W.2d 728 (S.D. 1991) . 36, 37

STATUTES

23 U.8-C-

BS daguea -sceeeeveseeseseoaneveseee

- Page 1 -

SUMMARY

Bagley's Petition For Certiorari

should be denied. None of the grounds for

certiorari in Sup. Ct. R. 10 are present.

The Ninth Circuit's decision is in accord

with unanimous precedent from this Court

and other jurisdictions. There is no

conflict among jurisdictions that have

addressed the issue in this’ case.

Bagley's claim that the Ninth Circuit's

decision conflicts with other precedent is

based upon erroneous and strained

interpretations of decisions which are

unrelated to the issue in this matter. In

addition, judicial economy and the

policies behind statutes of limitations

support the Ninth Circuit's decision.

This Brief responds to the specific

points raised in Bagley's petition. For

the Court's convenience, the arguments in

this Brief are cross-referenced to the

- Page 2 -

portions of Bagley's brief to which they

respond.

FACTS

A. Factual Background.

Defendants O'Connor and Mitchell are

former security officers for the Chicago,

Milwaukee, St. Paul & Pacific Railroad

Company ("Milwaukee Road"). (Complaint,

copy attached in appendix, 9 17).

Defendants CMC Real Estate Corp. ("CMC")

and The Soo Line Railroad ("Soo") are

successors in interest to the Milwaukee

Road. (Complaint, 94§ 18-21). The

Milwaukee Road entered reorganization

proceedings in 1977, and emerged as the

Soo and CMC in 1985. Defendant Prins is

an agent for the Bureau of Alcohol,

Tobacco and Firearms (°BATF) .

(Complaint, § 4).

In April 1977, Prins asked Mitchell

and O'Connor to act as informants in an

investigation of Bagley. Mitchell and

- Page 3 -

O'Connor agreed, and the Milwaukee Road

approved. (Complaint, 99 23-25).

During the investigation, Mitchell

and O'Connor had numerous contacts with

Bagley. After each contact, they signed

sworn declarations stating, among other

things, that they did not expect any

reward for aiding the Bagley

investigation. (Complaint, 44 26, 27).

On May 3, 1977, Mitchell and O'Coanor

each signed a "Contract for Purchase of

Information and Payment of Lump Sum

Therefor" ("contracts"). Pursuant to

these contracts, Mitchell and O'Connor

each eventually received compensation for

their work in the Bagley case.

(Complaint, 9§ 29-31).

On May 11, 1977, Bagley was arrested

for controlled substance and firearms

violations. Prior to his trial, Bagley

requested that the U.S. Government

disclose all payments made or promises of

- Page 4 -

payments made to Mitchell and O'Connor.

The U.S. Attorney in charge of the case

was unaware that Mitchell and O'Connor had

Signed the contracts or received any

payments. Thus, the U.S. Attorney told

Bagley's defense counsel that no payments

had been made or promised to either

Mitchell or O'Connor. (Complaint, 4Q 35,

36, 37).

At his trial, Bagley did not seek to

discredit Mitchell or O'Connor on the

grounds that they had been promised pay

for their work. (Complaint, @ 38). At

the end of the trial, on December 23,

1977, Bagley was convicted of distribution

of a controlled substance and sentenced to

six months in prison and five years

probation. (Complaint, § 43).

Bagley served his sentence and was

released on probation in June 1978. Two

years later, in March 1979, Bagley was

~ Page 5 -

arrested for firearms violations and

imprisoned again.

In May 1980, while in prison, Bagley

discovered that Mitchell and O'Connor had

signed the contracts and received

compensation for assisting in the

investigation. (Complaint, § 56). Bagley

moved to vacate his conviction under

28 U.3.C. 5 225935, alleging that the

failure to disclose the contracts and the

payments to Mitchell and O'Connor violated

his Fifth and Sixth Amendment rights.

(Complaint, 4 57). Bagley did not,

however, file any claims against the

present defendants.

On May 12, 1982, the trial court

hearing Bagley's habeas motion found that

O'Connor and Mitchell ". . . did expect to

receive from the United States some kind

of compensation, over and above their

expenses for their assistance, although

perhaps not for their testimony." See

- Page 6 -

Bagley v. Lumpkin, 719 F.2d 1462, 1463

(9th Cir. 1983). The court refused to

vacate Bagley's conviction, however, on

the ground that disclosure of the payments

would not have altered Bagley's

conviction. Id. at 1464.

On July 9, 1982, Bagley was released

from jail.

On November 10, 1983, five years

before Bagley filed this suit, the Ninth

Circuit reversed the District Court's

denial of Bagley's habeas motion, and also

reversed Bagley's 1977 conviction. The

Court's decision stated that failure to

disclose the payments to Mitchell and

O'Connor required an automatic reversal.

Bagley v. Lumpkin, supra, 719 F.2d 1462

(9th Cir. 1983).

In January 1984, Bagley was again

arrested, this time for violation of

marijuana laws, and sent to prison a third

time.

- Page 7 -

On July 2, 1985, the United States

Supreme Court reversed the Ninth Circuit,

and remanded the case with instructions to

determine whether there was a reasonable

probability that Bagley would not have

been convicted if the payments had been

disclosed. U.S. Vv. Bagley, 105 Ss. Ct.

3375, 2200, @7 Eseecea 481, 473 U.S. 667

(1985). On September 2, 1986, the Ninth

Circuit on remand confirmed its earlier

reversal of the denial of Bagley's habeas

motion and its reversal of Bagley's 1977

conviction. Bagley v. Lumpkin, 798 F.2d

1297 (9tm@ Cir. 1986). On January 13,

1988, Bagley's 1979 conviction was vacated

on the grounds that it was the result of

Bagley's 1977 conviction. United States

v. Bagley, 837 F.2d 371 (9th Cir. 1988).

B. Procedural Background.

Bagley filed this action in July

1988, over eight years after learning of

the misconduct at his trial and filing his

- Page 8 -

habeas motion. Bagley's Complaint seeks

damages in excess of $100 million for his

wrongful conviction, imprisonment and the

deprivations of that imprisonment. These

damage claims are set forth in 4G 103-138

of Bagley's Complaint.

Paragraphs 100-102 of Bagley's

complaint set forth damage claims that are

unrelated to his conviction and

imprisonment. These include $3 million in

punitive damages for the conspiracy to

violate his Fifth and Sixth Amendment

Rights (Complaint, § 100). He also claims

$20 million in actual damages and

$20 million in punitive damages for the

violation of his Fifth Amendment due

process rights and his Sixth Amendment

right to confront witnesses. (Complaint,

G§ 101, 102).

In June 1989, defendants moved for

judgment on the pleadings on_ several

- Page 9 -

grounds, including expiration of the

statute of limitations.

On November 1, 1989 the Honorable

William L. Dwyer granted defendants'

motions. The Ninth Circuit affirmed on

June 22, 1991.

The primary issue in the appeal, and

the issue that Bagley wishes this court to

consider, is: when did Bagley's claims

accrue for purposes of the statute of

limitations? Bagley claims that his claim

did not accrue until 1988, when his habeas

proceedings’ ended. The respondents

assert, and the Ninth Circuit ruled, that

Bagley's claim accrued in 1980, when

Bagley learned of all the facts supporting

his claim. As is set forth below,

certiorari should not be granted because

the Ninth Circuit's decision is in accord

with unanimous precedent from this Court

and other jurisdictions, as well as sound

policy considerations.

- Page 10 -

THE NINTH CIRCUIT'S DECISION

IS IN ACCORD WITH

DEAKINS V. MONAGHAN AND

DOES NOT CONFLICT WITH THE

SUPREME COURT PRECEDENT

CITED BY BAGLEY.

(Rebutting pp. 7-11

of Bagley's brief).

There is no conflict between the

Ninth Circuit's decision and precedent

from this court. The Ninth Circuit's

decision is in accord with Deakins v.

Monaghan, 484 U.S. 193, 108 S. Ct. 523, 98

L.Ed.2d 529 (1988), the only Supreme Court

decision pertaining to the issue in this

case. The Supreme Court cases cited by

Bagley are not on point.

A. The Ninth Circuit's Decision is in

Accord with This Court's Decision in

Deakins v. Monaghan.

Deakins v. Monaghan, 108 S. Ct. 523,

484 U.S. 193, 98 L.Ed.2d 529 (1988), is

the only Supreme Court decision pertinent

to the issue in this case. Deakins is

analogous to this case and supports the

- Page ii -

Ninth Circuit's decision. In Deakins, the

plaintiffs sought monetary damages and

equitable relief when law enforcement

agencies allegedly seized their business

records illegally during a= criminal

investigation. The District Court

dismissed the claim on abstention grounds,

citing Younger v. Harris, 401 U.S. 37, 91

S. Ct. 746, 27 L.Ed.2d 669 (1971). The

Third Circuit reversed, holding that the

District Court should have stayed, rather

than dismissed, the suit. One of the

reasons for the Third Circuit's rule was

to protect plaintiffs against expiration

of statutes of limitations.

In Deakins, this Court specifically

approved of the rule, stating:

In reversing the district

Court's dismissal of the claims

for damages and attorney's fees,

the Court of Appeals applied the

Third Circuit rule that

requires a District Court to

stay rather than dismiss claims

that are not cognizable in the

parallel state proceeding. 798

- Page 12 -

F.2d, at 635, citing Crane v.

Fauver, 762 F.2d 325 (CA3 1985),

and Williams v. Red Bank Bd. of

Ed., 662 F.2d 1008 (CA3 1981).

The Third Circuit rule is

sound. . . . [Footnote 7].

* * *

[Footnote 7] In both Crane v.

Fauver, 762 F.2d 325, 329 (CA3

1985), and Williams v. Red Bank

Bd. of Ed., 662 F.2d 1008, 1024,

n. 16 (CA3 1981), the Court of

Appeals recognized that unless

it retained jurisdiction during

the pendency of the state

proceeding, a plaintiff could be

barred permanently from

asserting his claims in the

federal forum by the running of

the applicable statute of

limitations.

Deakins, supra, 2608. 3. CS. at 530,

including n.7.

In addition, Justice White wrote a

concurring opinion in Deakins that cited

and approved of the Eighth Circuit's

decision in McCurry v. Allen, 606 F.2d

795, 799 (8th Cir. 1979), rev'd on other

grounds, 449 U.S.90, 101 S. Ct. 411, 66

L.Ed.2d 308 (1980), which adopts a similar

rule:

- Page i3 -

Moreover, dismissal might

foreclose, on statute of

limitations grounds, the

subsequent pursuit of a damages

action in federal court in the

event that the state court holds

that a violation of

Constitutional rights took

place. No doubt this is why

Courts of Appeals which have

applied Younger to damages

actions have ordered stays, and

not dismissals, of damages

claims to which Younger applies

[Footncte 1}.

[Footnote 1] See, e.g., McCurry

v. Allen, 606 F.2d 795, 799 (CA8

1979), rev'd on other grounds,

449 U.S.90, 101 S. Ct. 411, 66

L. Ed. 2d 308 (1980).

Deakins, supra, 108 S. Ct. at 531-532,

including n.1.

Thus, precedent from this Court

supports the Ninth Circuit's decision.

B. The Cases Cited by Bagley are

Miscited and/or Distinguishable.

Further, the three Supreme Court

decisions that Bagley cites are either

miscited or distinguishable. Each of

these cases is discussed separately below.

None of these cases conflict with the

- Page 14 -

Ninth Circuit's decision or support

Bagley's position.

- Williamson County Regional

Planning Commission v. Hamilton Bank,

473 U.S. 172, 105 S. Ct. 3108, 87 L.Ed.2d

126 (1985). Williamson is unrelated to

the issues in Bagley's case. Williamson

involved a landowner's claim that certain

local government land use _ decisions

constituted a taking under the 5th

Amendment. The Williamson Court held that

the landowner's claim was not ripe. The

decision was based upon the fact that the

landlord had not’ received a ("final

decision" on the land use application and

all variance possibilities and had not

sought just compensation through available

state procedures:

Because respondent has not yet

obtained a final decision

regarding the application of the

zoning ordinance and subdivision

regulations to its property, nor

utilized the procedures

Tennessee provides for obtaining

- Page 15 -

just compensation, respondent's

claim is not ripe.

7 7 *

Although "the question of what

constitutes a 'taking' for

purposes of the Fifth Amendment

has proved to be a problem of

considerable difficulty,"

(citation omitted), this Court

consistently has indicated that

among the factors of particular

Significance in the inquiry are

the economic impact of the

challenge to action and the

extent to which it interferes

with reasonable investment-

backed expectations (citations

omitted). Those factors simply

cannot be evaluated until the

administrative agency has

arrived at a final, definitive

position regarding how it will

apply the regulations at issue

to the particular land in

question.

* * *

The Commission's’ refusal to

approve the preliminary plat

does not determine that issue;

it prevents respondent’ from

developing its subdivision

without obtaining the necessary

variances, but leaves open the

possibility that respondent may

develop the subdivision

according to its plat after

obtaining the variances. In

short, the Commission's denial

of approval does not

- Page 16 -

conclusively determine whether

respondent will be denied all

reasonable beneficial use of its

property, and therefore is not a

final, reviewable decision.

A second reason the taking claim

is not yet ripe is-7~ that

respondent did not seek

compensation through the

procedures the state has

provided for doing so.

Williamson, supra, 105 S. Ct. at 3116,

3118-3119, 3120.

The Williamson court also noted that

condemnation cases differ from other areas

of law because there is the presumption

that a governmental entity can impose some

injury or diminution in value without any

claim accruing:

Government hardly could go on if

to some extent values incident

to property could not be

diminished without paying for

every such change in the general

law. As long recognized, some

values are enjoyed under an

implied limitation and must

yield to the police power.

Williamson, supra, 105 S. Ct. at 3123,

quoting, Pennsylvania Coal Company v. .

eee a a aeaeaeeseesS— EOE EE

- Page i17 =

Mahon, 260 U.S. 393, 413, 43 S. Ct. 158,

67 L.Ed. 322 (1922).

There are no parallels between

Williamson and Bagley's case. Bagley's

claim is not for a taking by land use

regulations. The issue in Bagley's case

is the statute of limitations and not

ripeness. Bagley's reliance on Williamson

is misplaced.

2. United States _v. Kubrick, 444

U.S. 111, 100 S&S. Ct. 352, 62 L.Ed.2d 259

(1979). Kubrick is a personal injury case

which does not support Bagley's case. The

dicta relied upon by Bagley reads as

follows: |

We are unconvinced that for

statute of limitations purposes

a plaintiff's ignorance of his

legal rights and his ignorance

of the fact of his injury or its

cause should receive identical

treatment. That he has been

injured in fact may be unknown

or unknowable until the injury

manifests itself; and the facts

about causation may be in the

control of the putative

defendant, unavailable to the

- Page is =

plaintiff or at least very

difficult to obtain. The

prospect is not so bleak for a

plaintiff in possession of the

critical facts that he has been

hurt and who has inflicted the

injury. He is no longer at the

mercy of the latter.

Kubrick, supra, 444 U.S. at 122.

Here, Bagley knew of the respondent's

alleged wrongful acts and of his alleged

injury in 1980. He was in jail and had

been deprived of the right of cross-

examination. There were no facts in the

defendants' possession that Bagley needed

in order to bring his lawsuit. Kubrick

does not support Bagley's claim.

3. United States v. Bagley, 473 U.S.

667, i053 &@. Ct. 3375, 87 bsaBacaa #61

(1985). Bagley's argument regarding his

own prior case and "harmless error" fails

because it is contrary to his_- own

complaint. Bagley's argument implies that

he would not have had a cause of action if

the alleged misconduct had been found to

- Page i9 =

constitute "harmless error". Yet Bagley's

complaint states the opposite. For

example, paragraph 100 of his Complaint

seeks recovery of $3,000,000 of punitive

damages for the conspiracy to violate his

constitutional rights. Bagley also seeks

an additional $30,000,000 of damages for

infliction of emotional distress

(Complaint, * 1303, as well as,

$50,000,000 for loss of reputation

(Complaint, § 109). Bagley's ability to

pursue these claims did not depend upon

the outcome of his habeas motion.

The proper course in Bagley's

Situation was the course mandated by the

Ninth Circuit. If Bagley was concerned

about pursuing his claims before the final

decision on his habeas motion, filing and

staying his complaint would have

alleviated Bagley's concerns as well as

put the respondents on notice of the

Claim.

- Page 20 -

Finally, Bagley's claim that the

Ninth Circuit's decision will spawn a rash

of frivolous suits which will clog the

courts is unfounded. The simple answer is

to stay the suits once they have been

filed. This court has required this

procedure in several instances in the

past. See, e.g., Johnson v. Railway

Express Agency, 421 U.S. 454, 44 L.Ed.2d

295, 95 S. Ct. 1716 (1975); Deakins v.

Monaghan, 108 S. Ct. 523, 484 U.S. 193, 98

L.Ed.2d 529 (1988).

In short, this Court's decisions are

in complete accord with the Ninth

Circuit's decision in this case. There is

no conflict between the Ninth Circuit and

this court, and there is no reason to

review the Ninth Circuit's decision.

II.

THE NINTH CIRCUIT'S DECISION

IS IN ACCORD WITH UNANIMOUS CASE LAW

FROM LOWER COURTS.

(Rebutting pages 12-16

of Bagley's petition.)

- Page 21 -

The Ninth circuit's decision is in

accord with unanimous case law from other

jurisdictions. Bagley's argument that

there is a conflict among the lower courts

is based upon inaccurate and misleading

attempts to analogize to case law does not

address the issue in this case. Every

case addressing this issue agrees with the

Ninth Circuit. No case addressing this

issue supports Bagley's position. The

cases cited by Bagley either do not stand

for the propositions for which they are

cited or are factually distinguishable.

There is no conflict among the lower

courts on this issue.

A. Every Case Addressing This Issue

Agrees with the Ninth Circuit.

Case law from the Third, Fifth,

Eighth, Ninth and Eleventh Circuits holds

that statutes of limitations on § 1983

actions begin to run prior to exhaustion

of habeas corpus proceedings. These cases

- Page 22 -

have arisen when prisoners filed § 1983

damage claims prior to filing habeas

claims. In accordance with well

established law, the courts required the

prisoners to first exhaust their habeas

remedies prior to commencing § 1983

actions. However, the courts also ordered

that § 1983 actions be stayed, rather than

dismissed, to prevent statutes of

limitations on the § 1983 claims from

expiring during the habeas proceedings.

Connor v. Pickett, 522 F.2d 585 (5th

Cir. 1977), is a good example. In Connor

the Fifth Circuit stated:

There is a possibility that if

Connor is required to seek

habeas corpus relief his right

to sue for damages under § 1983

may be extinguished by the

expiration oof the’ relevant

Alabama statute of limitations.

Therefore we direct the district

court to take such steps as may

be necessary to protect Connor's

right to bring a § 1983 suit

after he has exhausted his

habeas corpus remedies. One way

of accomplishing this’ result

would be to stay the § 1983

- Page 23 -

action pending the outcome of

the state proceedings as the

district court did in Mastrachio

¥,. Biees, .

Connor, supra, 522 F.2d at 587.

Other decisions from the First,

Third, Fifth, Eighth, Ninth and Eleventh

Circuits are in accord with this rule.

See, e.g., Bailey v. Ness, 733 F.2d 279,

283 (ara Cir. 1984); Richardson v.

Fleming, 651 F.2d 366, 375 (Sth Cir.

1981); McCurry v. Allen, 606 F.2d 795, 799

(8th Cir. 1979), reversed on other

grounds, Allen v. McCurry, 449 U.S. 90, 66

L.Ed.2d 308, 101 S. Ct. 411 (1980); cf.

Prather v. Norman, 901 F.2d 915, 918-919

(11th Cir. 1990) (reversing and remanding

district court's sua sponte dismissal of

claim on several grounds, including

possibility that claim should have been

stayed rather than dismissed); cof.

Mastrachio v. Ricci, 498 F.2d 1257 (1st

Cir. 1974), cert. denied, 420 U.S. 909

- Page 24 -

(1975) (court stayed § 1983 action pending

completion of criminal appeal without

discussing statute of limitations); Young

v. Kenny, 887 F.2d 237, 240 (9th Cir.

1989).

In addition to these Circuit Court

decisions, the Eastern District of

Pennsylvania and the Supreme Court of

Wyoming have dismissed § 1983 cases

because the statutes. of limitations

expired during pendency of the plaintiffs'

criminal appeals. In Drum v. Nasuti, 648

F. Supp. 888 (E.D. Pa. 1986), the

plaintiff filed a § 1983 claim alleging

the defendants committed perjury during

his trial. The court held that the

plaintiff's cause of action accrued when

the plaintiff ". . . Knew or had reason to

know the injury that constitutes the basis

of this action, ...". This is the same

standard applicable in this case. Under

that standard, the court held that the

- Page 25 -

plaintiff knew of the perjury at the time

it was committed and that the § 1983 claim

accrued at that time, not when the court

of appeals affirmed his conviction:

[T)he date of accrual began when

the plaintiff had reason to know

of the alleged -false testimony

in his case.

, I must reject plaintiff's

argument that his claim was not

ripe until the court of appeals

denied his appeal from his

criminal contempt conviction in

the middle district on May 18,

1984 . . . The last act which

Drum complains of causing his

injury would have been during

his criminal contempt

proceedings, in June 1983, when

he 'kKnew' from Reif's testimony

of the conspiracy he claims. It

was then that the statute of

limitations accrued.

Drum, Supra, 648 F. Supp. at 903.

The court also rejected an argument

that the criminal appeal tolled the

statute of limitations, stating that the

proper procedure was to file and stay the

§ 1983 action:

Nor can plaintiff argue that the

reason he failed to file his

- Page 26 -

Section 1983 was that the same

issues were pending in another

proceeding. (Citation omitted).

Rather, in such a situation, the

court would stay the civil

rights proceeding until the

criminal proceedings had run

their course. Id. Thus, the

statute of limitation also bars

plaintiff's claims.

648 F. Supp. at 903-904.

In Lafferty v. Nichel, 663 P.2d 168

(Wy. 1983), the court held that the

statute of limitations on the plaintiff's

civil rights claims under § 1983 and

§ 1985 began running at the time of the

plaintiff's arrest, confinement and

prosecution and the accrual of his claims

was not delayed until his conviction was

overturned:

Appellant filed the present

civil action on November 27,

1981, more than two years after

nis arrest, imprisonment, and

conviction, but within two years

of the District Court's reversal

of his conviction in municipal

court.

- Page 27 =-

[Plaintiff] argues that’ the

municipal court convictions

effectively estopped him from

pursuing his civil claims

because of the implicit finding

of probable cause in those

convictions. Therefore, he

contends that either the claims

did not accrue until the

reversal of his municipal court

convictions or the convictions

tolled the running of the

statutes of limitations until

such reversal.

* * *

In this case the actions giving

rise to the alleged civil rights

violations arose upon

appellant's arrest, confinement,

and prosecution in March of

1979. At that time, appellant

had a cause of action which

could be brought against

appellees.

Lafferty, supra, 663 P.2d at 169-170.

In short, ample case law directly

Supports the Ninth Circuit's decision.

Bagley neither addresses nor mentions

these cases which are all in concurrence

with the Ninth Circuit.

B. No Court has Ruled in Favor of

Bagley's Position.

- Page 28 -

Further, no court from any

jurisdiction that has addressed this issue

holds, as Bagley opines, that a claim does

not accrue until habeas corpus proceedings

have ended. There is no case, from any

jurisdiction, which addresses facts

identical or closely analogous to the

facts of this case to support Bagley's

position. Bagley does not cite such a

case and, as the Ninth Circuit noted (923

F.2d at 761; p. 8a of Bagley's Petition),

none exists.

Cc. The Cases Cited by Bagley are Either

Miscited or Distinguishable.

Bagley cites five cases which he

argues are contrary to the Ninth Circuit's

decision. Each of these cases is discussed

below. None of them conflict with the

Ninth Circuit's decision and none of them

support Bagley's position.

i. Triplett v. Azordegan, 478 F.

Supp. 872 (N.D. Iowa, 1977). There are

- Page 29 -

two insurmountable problems with Bagley's

reliance on Triplett. First, Triplett

was decided in a District Court in the

Eighth Circuit. Subsequent to Triplett,

the Eighth Circuit ruled that the statute

of limitations begins running on § 1983

actions before habeas proceedings are

finished. McCurry v. Allen, supra. In

McCurry, the Eighth Circuit ordered that a

§ 1983 action be stayed, rather than

dismissed, to prevent the expiration of

the statute of iimitations while the

prisoner/plaintiff exhausted his criminal

appeals. McCurry, supra, 606 F.2d at

799°.

The second problem is that Bagley

mischaracterizes Triplett. Triplett is

court,

the opinion to mean

‘The Eighth Circuit's use of the word "tolling" at

page 799 of the McCurry opinion is confusing in

this context. Subsequent courts, including this

have unanimously interpreted that word in

"running" or “expiration".

See, e.g., Deakins v. Monaghan, 108 S. Ct.

531-532, 484 U.S. 193, 98 L.Ed.2d 529 (1988)

White, concurring).

- Page 30 -

based entirely on collateral estoppel. In

Triplett, the plaintiff was a former

inmate who had confessed to a murder after

being drugged. His criminal trial took

place in 1955. During the criminal trial, |

the propriety and admissability of his

drugged confession was addressed. In

1972, the court reversed its ruling on the

propriety of the drugged confession, and

reversed the conviction. Based upon that

reversal, the plaintiff filed his § 1983

suit claiming that his rights had been

violated because of the drugging.

The court ruled that the statute of

limitations did not begin running on the

§ 1983 suit until 1972. It did so because

the criminal trial court had specifically

ruled that the drugged confession was

proper, and this ruling would have

estopped the plaintiff from claiming that

his civil rights had been violated:

- Page 31 -

It is clear that the issues

surrounding the confession were

raised at trial and in post-

trial motions, but failed to

affect the conviction.

* * *

It is almost too evident to

warrant comment that plaintiff,

having been convicted of murder

by virtue of a confession which

in 1955 was deemed legal and

admissible, could not have, at

that time, pursued a § 1983

claim. (Citations omitted)

In fact, the Eighth Circuit

Court of Appeals has recognized

that issues determined at a

criminal trial may estop the

criminal defendant from

relitigating them in a civil

action based on § 1983. McNally

v. Pulitzer Publishing Co., 532

F.2d 69 (8th Cir. 1976).

It is well established that

prior criminal proceedings

can work an estoppel in a

Subsequent eivii

proceeding, so long as the

question involved was

"distinctly put in issue

and directly determined" in

the criminal action.

532 F.2d at 76.

The State District Court found

that the conviction was based on

the involuntary confession. The

issue of voluntariness was

- Page 32 -

sufficiently raised at the

original trial to warrant

estoppel until the court

reversed the conviction in 1972.

Triplett, supra, 478 F. Supp. at 875.

Triplett is distinguishable because

collateral estoppel does not apply in this

case. The alleged misconduct at Bagley's

criminal trial was neither addressed nor

discovered at the time of Bagley's

criminal trial. The ruling in Triplett is

unrelated to the issue of when Bagley's

claim accrued.

a McNally v. Pulitzer Publishing

Company, 532 F.2d 69 (8th Cir. 1976). For

the same reasons, Bagley's reliance on

McNally is erroneous. McNally is an

Eighth Circuit case that was decided prior

to McCurry v. Allen, supra. McNally is

also a collateral estoppel case:

In order to secure relief for

the deprivation of the right to

a fair trial, McNally must

demonstrate that the alleged

improper conduct in fact had

that result. This issue,

- Page 33 -

however, has already been

decided adversely to him in the

prior federal criminal

prosecution and appeal. It is

well established that prior

criminal proceedings can work an

estoppel in a subsequent civil

proceeding, so long as_ the

question involved was

"distinctly put in issue and

directly determined" in a

criminal action. .. . McNally

cannot now litigate again the

fairness of his criminal trial.

McNally, supra, 532 F.2d at 76.

as Prince v. Wallace, 568 F.2d 1176

(5th Cir. 1978). Prince is not pertinent

for two reasons. First, Prince is a Fifth

Circuit decision. The 5th Circuit decided

Connor v. Picket, supra, before Prince,

and Richardson v. Fleming, supra, after

Prince, both of which agree with the Ninth

Circuit's decision in this case. Second,

the decisive issue in Prince was whether

or not the one year statute of limitations

applied. After it as determined that the

one year statute was applicable, the

- Page 34 =

question of when the claim accrued became

moot.

4. Jones v. Shankland, 800 F.2d 77

(6th Cir. 1986). Jones does not support

Bagley's position. The Jones court noted

that one of its previous decisions, Hadley

v. Werner, 753 F.2d 514 (6th Cir. 1985),

affirmed the dismissal of a § 1983 case on

the ground that the plaintiff had not

exhausted his habeas corpus remedies. As

Bagley's brief mentions, the Jones court

acknowledged that the Hadley decision

"raised some question" regarding whether

the § 1983 claim accrued before the habeas

corpus proceedings ended. Bagley's brief

fails to disclose, however, that the Jones

court then questioned Hadley by referring

to the Fornaris and Muskegon Theater

cases, stating that those cases held it

error to dismiss civil rights claims where

abstention was appropriate:

- Page 35 -

The specific relief accorded in

Hadley would normally raise some

question whether, therefore, the

accrual of a petitioner's cause

of action for damages based upon

constitutional violations which

also effected his liberty, would

be suspended during the entire

time necessary to pursue the

habeas action to a successful

conclusion. In another context,

however, the Supreme Court in

Fornaris v. Ridge Tool Co., 400

Usm@e Sa, Fi S. Ct. a7e, a7

L.Ed.2d 174 (1970), and this

Circuit in Muskegon Theaters,

Inc. v. City of Muskegon, 507

F.2d 199 (6th Cir. 1974), held

it error to have dismissed

outright, even without

prejudice, causes of action

brought under the Civil Rights

Act where it was determined that

abstention pending the

resolution of state proceedings

was appropriate.

Jones, supra, 800 F.2d at 82-83.

Although Jones stated that there

". ..- is logic and support for both

positions, .. ." the Court's sua sponte

questioning of Hadley is an implicit |

rejection of the case. Jones does not

Support Bagley's position and does not

- Page 36 -

conflict with the Ninth Circuit's decision

in this case.

5. Schweitzer v. Consolidated Rail

Corp., 758 F.2d 936 (3rd Cir. 1985), cert.

denied, 106 S. Ct. 183 (1985). Schweitzer

is inapplicable for several reasons.

Schweitzer is an asbestosis case from the

Third Circuit and the Third Circuit has

already rejected Bagley's position in a

decision that is factually on point,

Bailey v. Ness, supra. Furthermore, the

plaintiff in Schweitzer did not know he

had been injured until he filed his claim.

In 1980 Bagley knew that he had not cross-

examined Mitchell and O'Connor because of

the failure to disclose the payments. He

also knew he was in jail.

6. Moeller v. State, 474 N.W.2d 728

(S.D. 1991). Moeller is distinguishable

both legally and factually. Legally,

Moeller construes South Dakota law, SDCL

21-32-2, not federal law. Factually,

- Page 37 -

Moeller involved procedural error, the

trying of the defendant as an adult rather

than a juvenile. The issue of how the

defendant should have been tried was

raised and decided upon at the trial court

level. Like Tripiett and McNally, the

trial court's decision was controlling

until it was overruled. In Bagley's case,

the misconduct was not addressed (or even

discovered) at the trial court level.

In short, unanimous case law supports

the ‘nth Circuit. No case addressing this

issue supports Bagley. Bagley's attempt to

portray this case as an illustration of

conflict between the Ninth Circuit and

other jurisdictions is not accurate.

There is no conflict among jurisdictions

on this issue.

III.

THE NINTH CIRCUIT'S DECISION

I8 NOT CONTRARY TO CASE LAW

REGARDING COLLATERAL ESTOPPEL.

(Rebutting pp. 17-19

of Bagley's brief.)

- Page 38 -

Bagley argument regarding collateral

estoppel, summarized, is as follows. In

May 1982 the District Court denied

Bagley's habeas motion because the alleged

misconduct ". . . would not have affected

the outcome of the criminal prosecution."

719 F.2d at 1463. Bagley equates this to

a ruiing that the Respondents' alleged

conduct was "harmless error." Bagley

argues that he could not have recovered

from the Respondents for "harmless error,"

and, therefore, that the District Court's

decision on his habeas motion estopped him

from proceeding.

Bagley's argument fails for at least

four independent reasons. First, Bagley's

argument is contrary to his own complaint.

Many of Bagley's claims, such as

conspiracy, emotional distress and harm to

reputation (Complaint, 4§ 100, 109, 110),

account for huge damage claims

($86,000,000), and were not dependant upon

- Page 39 -

reversal of Bagley's criminal conviction.

These claims could not have been estopped

or affected by the District Court's ruling

on the habeas motion.

Second, even if the alleged

misconduct was harmless error and no

actual damages resulted, case law from

this court allows both nominal and

punitive damages for constitutional claims

in appropriate circumstances. See, e.gq.,

Carey v. Piphus, 435 U.S. 247, 55 L.Ed.2da

252, 266-267, 98 S. Ct. 1042 (1978).

Although Bagley's Petition for Certiorari

Claims that he could not recover for

harmless error, Bagley's Complaint alleges

and seeks recovery of tens of millions of

dollars of nominal and punitive damages.

Third, Bagley's conviction, and the

District Court's denial of Bagley's § 2254

habeas motion, were reversed in the Ninth

Circuit on November 10, 1983. Bagley v.

Lumpkin, 719 F.2d 1462 (9th Cir. 1983).

- Page 40 -

Both the conviction and the denial of the

habeas motion lost all collateral

estoppel effect at that time. Yet Bagley

still waited five years to file his

complaint.

Fourth, the proper procedure would be

for Bagley to file his civil rights action

within the limitations period and ask the

District Court to stay the action pending

the outcome of his habeas motion. This

procedure would have prevented any

conceivable concern with collateral

estoppel in Bagley's case and will prevent

such concerns in the future.

IV.

SOUND POLICY CONSIDERATIONS SUPPORT

THE NINTH CIRCUIT'S DECISION.

(Rebutting pp. 19-25

of Bagley's brief.)

Strong policy considerations support

the Ninth Circuit's decision. Bagley's

policy argument is without merit. The

current law requiring that actions be

- Page 41 -

filed and stayed satisfies the policies

behind statutes of limitation as well as

the policy interests raised by Bagley:

judicial economy, the right of parties to

be free from litigation that might be

decided in a collateral matter, and

permitting meritorious civil rights

claims.

Requiring that claims be filed and

stayed promotes judicial economy because

no activity in the litigation will occur

until the habeas proceeding is decided.

The burden on the judiciary of receiving

and staying siilietites is nominal - this

court has ordered the procedure in the

past and referred to the burden as

"minimal". See Johnson v. Railway Express

Agency, 421 U.S. 454, 44 L.Ed.2d 295, 305,

95 S. Ct. 1716 (1975); see also, Deakins

Vv. Monaghan, supra. Further, Bagley's

dire prediction of "court clogging" is

belied by the actual experience of the

- Page 42 -

courts. The current law in all

jurisdictions which have addressed this

issue is that complaints be filed and

stayed, and there is no indication of any

resulting court congestion.

Staying proceedings will prevent

parties from expending resources on suits

that are ultimately decided in collateral

proceedings. The parties need only file a

stipulated order staying the proceedings.

In fact, expenses will be saved because

defendants will have notice of suits ina

timely manner. Thus, defendants will be

able to preserve relevant evidence rather

than having to dredge it up many years

after the fact.

Staying the proceedings will have no

effect on the rights to have meritorious

claims decided.

Finally, staying proceedings

satisfies all of the policies’. behind

statutes of limitation, including

- Page 43 -

protecting parties' rights to have notice

of claims, protecting parties from stale

claims, and preventing the injustices and

expense caused by the loss of evidence,

memory lapses, death or disappearance of

witnesses, and loss or destruction of

documents, all of which inevitably result

when parties are not given timely notice

of claims.

Bagley's policy argument is’ based

solely on preventing the nominal expense

of filing and staying complaints. The

"minimal" burden of staying complaints is

far exceeded by the expense and injustice

resulting from failing to give potential

defendants notice and an opportunity to

preserve evidence. This is particularly.

true since there is no_ statute of

limitations for habeas actions. Under

Bagley's position, there would be no

statute of limitations for civil rights

claims, since they would be tolled until

- Page 44 -

the plaintiff decided, at his/her whim, to

initiate his/her habeas proceedings.

CONCLUSION

The Ninth Circuit's decision is in

accord with unanimous case law from this

and other courts. Sound policy

considerations support these decisions.

There is no conflict among courts that

have addressed this issue. None of the

considerations for certiorari in Sup. Ct.

R. 10 are present in this case and

Bagley's Petition for Certiorari should be

denied.

Respectfully submitted this <*- day

of January, 1992.

GRAHAM & DUNN

James C. Fowler

a j

‘ aa eam.

By | ee

Attorneys for Respondents

- Page la -

APPENDIX

IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

HUGHES ANDERSON BAGLEY, JR., No. C88-1062

Plaintiff,

COMPLAINT

vs. FOR DAMAGES

AND

NORMAN W. PRINS, an Agent of INJUNCTIVE

the Bureau of Alcohol, RELIEF

Tobacco and Firearms, PURSUANT TO

Department of the Treasury, THE UNITED

in his Individual Capacity, STATES

CONSTITUTION

and, (BIVENS

ACTION) AND

JAMES P. O'CONNOR, TITLE 42

U.S.C. §1983

and, AND §1985

DONALD E. MITCHELL,

and

CMC REAL ESTATE CORP., a

Successor to the Chicago,

Milwaukee, St. Paul and

Pacific Railroad,

and

The Soo Line Railroad, a

- Successor to the Chicago,

Milwaukee, St. Paul and

Pacific Railroad,

Defendants.

)

- Page 2a -

NATURE OF THE ACTION

fi.) This is a civil suit for

monetary damages and injunctive relief

pursuant to the Fifth and Sixth

Amendments te the United States

Constitution (Bivens action) and Title 42

U.S.C. §1983 and §1985.

FACTS

q2.) At all times relevant hereto,

Plaintiff Hughes Anderson Bagley, Jr.

(hereinafter "Plaintiff") was a citizen

of the United States entitled to the

protection of the United States

Constitution.

q3.) All acts performed by the

individual Defendants Norman W. Prins

(hereinafter "Prins"), James P. O'Connor

(nereinafter "O'Connor") and Donald E.

- Page 3a -

Mitchell (hereinafter "Mitchell")

occurred within the Western District of

Washington.

q4.) At all times relevant hereto,

Defendant Prins was an agent of the

Bureau of Alcohol, Tobacco and Firearms

(BATF), a Bureau of the United States

Treasury Department, stationed in

Seattle, Washington.

q5.) At all times relevant hereto,

Defendant Prins was a federal law

enforcement officer acting as an agent of

the BATF.

q6.) At all times relevant hereto,

Defendant Prins was acting in concert

with Defendants O'Connor and Mitchell.

97.) Defendant Prins is a resident

of the State of Washington, residing at

23330 19th Place West, Brier, Washington

within the Western District of

Washington.

- Page 4a -

q8.) At all times relevant hereto,

Defendant O'Connor was a law enforcement

officer commissioned by the State of

Washington and was acting under color of

state law.

q9.) At all times relevant hereto,

Defendant O'Connor was acting in concert

with Defendants Prins and Mitchell.

910.) At all times reievant hereto,

Defendant O'Connor was employed by the

Chicago, Milwaukee, St. Paul and Pacific

Railroad Co. (hereinafter the "Milwaukee

Road"), a predecessor to Defendants CMC

Real Estate Corp. (hereinafter "CMC") and

Soo Line Railroad (hereinafter "Soo

Line"), as a state commissioned law

enforcement officer and was acting in

that capacity pursuant to instructions

from his superiors at the Milwaukee Road.

§11.) Defendant O'Connor is a

resident of the State of Washington,

- Page 5a -

residing at 419 West Fulton Street,

Seattle, Washington 98109, within the

Western District of Washington.

gi2.) At all times relevant hereto,

Defendant Mitchell was a law enforcement

officer commissioned by the State of

Washington and was acting under color of

state law.

q13.) At all times relevant hereto,

Defendant Mitchell was acting in concert

with Defendants Prins and O'Connor.

914.) At all times relevant hereto,

Defendant Mitchell was employed by the

Chicago, Milwaukee, St. Paul and Pacific

Railroad Co., a_predecessor to Defendants

CMC and Soo Line, as a state commissioned

law enforcement officer and was acting in

that capacity pursuant to instructions

from his superiors at the Milwaukee Road.

915.) Defendant Mitchell is a

resident of the State of Washington,

- Page 6a -

residing at

within the Western District of

Washington.

g16.) At all times relevant hereto,

the Milwaukee Road, a predecessor to

Defendants CMC and Soo Line, was a

corporation doing business within the

State of Washington and maintained

offices at First Avenue South and

Massachusetts Street, Seattle,

Washington, within the Western District

of Washington.

917.) At all times relevant hereto,

the Milwaukee Road, a predecessor to

Defendants CMC and Soo Line, employed

Defendants O'Connor and Mitchell as state

commissioned law enforcement officer and

supervised and approved of the actions of

Defendants O'Connor and Mitchell

complained of herein and giving rise to

this action.

- Page /a -

918.) Defendant Soo Line Railroad is

a successor to the Milwaukee Road, having

assumed the assets and undischarged

liabilities of the Milwaukee Road

pursuant to the Milwaukee Railroad

Restructuring Act, Title 45 U.S.C. §901-

§922 and an order of the United States

District Court for the Northern District

of Illinois issued on April 12, 1985.

919.) Defendant Soo Line is a

corporation and maintains headquarters at

Post Office Box 530, Minneapolis,

Minnesota 55440.

q20.) Defendant CMC is a successor

to the Milwaukee Road, having assumed the

non-railroad assets and undischarged

liabilities of the Milwaukee Road

pursuant to the Milwaukee Railroad

Restructing Act, Title 45 U.S.C. §901-

§922 and an order of the United States

- Page 8a -

District Court for the Northern District

of Illinois issued on April 12, 1985.

q21.) Defendant CMC is a

corporation maintaining headquarters at

547 West Jackson Street, Chicago,

Illinois 60606.

q22.) Sometime in late 1976 or

early 1977, Defendant Prins, acting as a

federal law enforcement officer employed

by the BATF, began an investigation of

Plaintiff.

g23.) In approximately April 1977,

Defendant Prins solicited the services of

Defendants O'Connor and Mitchell as

informants to aid in Defendant Prins'

investigation of Plaintiff.

924.) In approximately April 1977,

Defendants O'Connor and Mitchell agreed

to Defendant Prins' request for their

services in assisting Defendant Prins'

investigation of Plaintiff.

- Page 9a -

925.) Sometime in April, 1977,

acting through Defendants O'Connor's and

Mitchell's immediate supervisor, the

Milwaukee Road, a predecessor to

Defendants CMC and Soo Line, approved

Defendants O'Connor's and Mitchell's

assistance in Defendant Prins'

investigation of Plaintiff while

Defendants O'Connor and Mitchell were on

company time and while using company

facilities, including the Milwaukee Road

offices at First Avenue South and

Massachusetts Street in Seattle and a

company vehicle.

q26.) As part of their assistance in

Defendant Prins' investigation of

Plaintiff, Defendants O'Connor and

Mitchell, in the presence of Defendant

Prins, made sworn statements regarding

their contacts with Plaintiff after each

such contact.

- Page 10a -

q27.) Each of the sworn statements

referred to in 426 contained a disclaimer

of any reward or expectation of reward by

Defendants O'Connor and Mitchell for

their participation in Defendant Prins'

investigation of Plaintiff.

q28.) As Defendants Prins, O'Connor

and Mitchell well knew, the disclaimer of

expectations of reward for Defendants

O'Connor's and Mitchell's participation

in Defendant Prins' investigation of

Plaintiff contained in the sworn

statements described in 426 and §27 were

false.

929.) On May 3, 1977, prior to

making the last of the sworn statements

denying any expectation of reward for

their assistance in Defendant Prins'

investigation of Plaintiff, Defendants

O'Connor and Mitchell, in the presence of

- Page lla -

Defendant Prins, signed BATF Form 164-

A's.

G30.) BATF Form 164-A is a document

entitled "Contract For Purchase of

Information and Payment of Lump Sum

Therefor".

431.) Beginning in approximately

May, 1977, Defendants Prins, O'Connor and

Mitchell conspired among themselves to

violate Plaintiff's rights to Due Process

and Confrontation of Witnesses, as

guaranteed by the Fifth and Sixth

Amendments to the United States

Constitution, by concealing by means of

the false sworn statements referred to in

§26 and 427 the fact that Defendants

O'Connor and Mitchell were to be paid for

their services in Defendant Prins'

investigation of Plaintiff in order to

prevent Plaintiff from showing at trial

that Defendants O'Connor's and Mitchell's

- 1l11-

- Page 12a -

testimony was not credible because it had

been paid for, thereby increasing the

likelihood that Plaintiff would be

wrongly convicted at trial and imprisoned

as a result of that trial.

932.) The Milwaukee Road, a

predecessor to Defendants CMC and Soo

Line, failed to properly train and

supervise Defendants O'Connor and

Mitchell, as a result of which Defendants

O'Connor and Mitchell were able to enter

into and carry out the cdnspiracy to

conceal their expectation of payments as

described in 431.

933.) On May 11, 1977, as a result

ct the activities of Defendants Prins,

O'Connor and Mitchell, Plaintiff was

arrested by agent of the BATF.

934.) As a result of the activities

of Defendants Prins, O'Connor and

Mitchell, Plaintiff was indicted in the

- 12 -

- Page 13a -

Western District of Washington in case

number CR77-330V.

935.) About one month prior to

trial in case number CR77-330V, Plaintiff

requested the United States government to

disclose all rewards or promises of

rewards to be paid to Defendants O'Connor

and Mitchell for their participation in

Defendant Prins' investigation of

Plaintiff or their testimony at

Plaintiff's trial.

936.) Acting in reliance on the

sworn statements of Defendants O'Connor

and Mitchell, made in the presence of and

witnessed by Defendant Prins, Assistant

United States Attorney Francis Jerome

Diskin responded to Plaintiff's request

described in §35 by advising Plaintiff's

defense counsel that there were no

payments or promises of payments to

Defendants O'Connor and Mitchell.

- 13-

- Page l4a -

937.) Had Assistant United States

Attorney Francis Jerome Diskin known of

the existence of the signed contracts

providing for future payments to

Defendants O'Connor and Mitchell which

are described in §29, Diskin would have

disclosed those documents to Plaintiff's

trial counsel for use at trial in case

number CR77-330V.

938.) Because of the sworn

statements of Defendants O'Connor and

Mitchell, witnessed by Defendant Prins,

described in 426 and 427, denying any

payment or promise of payment for

Defendants O'Connor's and Mitchell's

participation in Plaintiff's prosecution,

Plaintiff's defense counsel did not cross

examine Defendants O'Connor and Mitchell

at trial in case number CR77-330V as to

their motive for their testimony or

- Page 15a -

otherwise seek to discredit their

testimony.

G39.) On December 23, 1977, solely

as a result of the testimony of

Defendants O'Connor and Mitchell,

Plaintiff was convicted of two felony

counts of distribution of valium

(diazepam) in violation of Plaintiff's

rights of Due Process and Confrontation

of Witnesses as guaranteed by the Fifth

and Sixth Amendments to the United States

Constitution.

940.) Between December 23, 1977 and

January 20, 1978, solely as a result of

the felony convictions described in 439,

Plaintiff was subjected to a presentence

investigation report by a United States

Probation Officer.

941.) Solely as a result of the

presentence investigation report

referenced in 940, Plaintiff was

- 15 -

- Page 16a -

subjected to an invasion of his personal

privacy by being required to disclose to

a United States Probation Officer

intimate details of his personal life,

including but not limited to, details of

his relationship with his former wife,

the names of friends and business

associates and his personal habits and

finances.

942.) Solely as a result of the

disclosures referenced in 441,

Plaintiff's former wife, friends,

business associates and family were

interviewed by United States Probation

Officers, resulting in further invasion

of Plaintiff's right to privacy.

943.) On January 20, 1978, solely

as a result of the conviction described

in §39, Plaintiff was sentenced to a term

of imprisonment of six months and a term

of probation of five years.

- 16 -

- Page 17a -

444.) Solely as a result of the

conviction set forth In 439, Plaintiff

was imprisoned between January 20, 1978

and mid-June, 1978.

945.) Solely as a result of the

conviction set forth in 439, from mid-

June, 1978 through March, 1979, Plaintiff

was subjected to limitations on his

personal liberty by being subjected to

probation and parole.

9446.) Solely as a result of the

conviction set forth in 439 and the

probation and parole described in 943 and

945, Plaintiff was required to report to

a United States Probation Officer and-was

required to disclose details of his

personal life, resulting in further

violation of Plaintiff's right to

privacy.

947.) On March 30, 1979, solely as

a result of information brought to the

oe 173 «

- Page 18a -

government's attention solely as a result

of the conviction described in 439 and

the probation and parole described in 443

and 445, Plaintiff was again arrested by

agents of the BATF and was charged in

case number CR79-108M in the Western

District of Washington.

eee 948.) Solely as a result of the

conviction described in §39 and the

probation and parole described in 443 and

945, Plaintiff was denied his :

~€onstitutional right to bail in case

number CR79-108M.

9449.) Solely as a result of the

conviction described in §3%, Plaintiff

was charged in case number CR79-108M with

multiple counts of being a felon in

receipt or possession of firearms.

950.) Solely as a result of the

conviction set forth in 439, Plaintiff

__was. forced to forego his right to testify

- 18 -

- Page 19a -

in his own behalf, as guaranteed by the

Sixth Amendment to the United States

Constitution, in order to prevent the

jury from learning of the nature of that

conviction.

951.) Solely as a result of the

conviction set forth in 439, Plaintiff

was convicted in case number CR79-108M of

four counts of being a felon in

possession or receipt of firearms.

52.) Because of the inability to

testify in his own behalf described in

950, Plaintiff was convicted in case

number CR79-108M of a single count of

engaging in the business of selling

firearms.

G{§53.) On August 2, 1979, solely as

a result of the conviction described in

939, Plaintiff was sentenced to an

enhanced term of imprisonment in case

number CR79-108M of twelve years.

- 19 -

- Page 20a -

q54.) In February, 1980, solely as

a result of the conviction described in

939, Plaintiff was ordered by the United

States Parole Commission to serve a term

of thirty months before parole, whereas

had it not been for that conviction,

Plaintiff would have been ordered to

serve not more than eighteen months

before parole.

955.) In April, 1986, solely as a

result of the conviction described in

939, Plaintiff was ordered to serve a

parole violator term of thirty four

months by the United states Parole

Commission, whereas had it not been for

the conviction described in 439,

Plaintiff would have been ordered to

serve a term of not more than twenty six

months.

g56.) In May, 1980, as the result

of a response to a request under the

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- Page 2la -

Freedom of Information and Privacy Acts,

Title 5 U.S.C. §552 and §552a, Plaintiff

learned for the first time that the sworn

statements described in q26 and §q27 made

by Defendants O'Connor and Mitchell in

the presence of Defendant Prins in which

Defendants O'Connor and Mitchell denied

any payments or promises of payments for

their part in Plaintiff's prosecution in

case number CR77-330V were false because

Defendants O'Connor and Mitchell had

Signed the BATF Form 164-A's described in

929 and 430 on May 3, 1977.

q57.) On September 30, 1986, after

more than six years of litigation, the

United States Court of Appeals for the

Ninth Circuit vacated Plaintiff's .

conviction in nun number CR77-330V in

Bagley v. Lumpkin, 798 F. 2d 1297 (9th

Dir. 1986), ruling that the conviction

had been obtained in violation of

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- Page 22a -

Plaintiff's riqhts to Due Process and

Confrontation of Witnesses, as quaranteed

by the Fifth and Sixth Amendments to the

United States Constitution.

q58.) On January 13, 1988, the

United States Court of Appeals for the

Ninth Circuit vacated all counts of felon

in possession or receipt of firearms in

case number CR79-108M, United States v.

Bagley, 837 F. 2d 371 (9th Cir. 1988),

because those counts were the result of

the unconstitutional conviction in case

number CR77-330V. The Court of Appeals

also found that Plaintiff had been

subjected to an enhanced sentence because

of that unconstitutional conviction.

III

JURISDICTION

959.) This Court has jurisdiction

over this matter under the provisions of

- 22-

Page 2ta

Title 28 U.S.C. 61331 fa)

because

action arises in part under the

States Constitution. The

jurisdiction under Title 28 U.S

because this action is alsn

violations of Title 42 WU.

§1985.

VENUE.

Venue lies in this District

te Title 28 U.s.c §1391 {b)

> =.

action arises from acts committ

te.

this

Mrpherl

Court al

st .

bases)

“~

.C. §1983

the District and al] individual

defendants reside within the

761.) The conspiracy

Plaintiff's Constitutional

lit a a ae

Process and Confrontation

r \_a--

Wiawtf i

~ >; | ~-

- ViOiat

-_ -—-_— = _

~~ gr44 = -

has

Aric)

~ ~

ed within

- Page 24a -

guaranteed by the Fifth and Sixth

Amendments to the United States

Constitution, as described in 431, is

actionable as a violation of Title 42

U.S.C. § 1985, which prohibits two or

more persons from conspiring to hinder or

obstruct or defeat the due course of

justice with intent to deny any citizen

equal protection of the laws.

962.) The non-disclosure of

information regarding the expectation of

payments by Defendants O'Connor and

Mitchell described in 4936 (hereinafter

-"non-disclosure"), as evidenced by-the

contracts described in 429 and 430, which

resulted from the conspiracy described in

931 and was concealed by the false sworn

statements described in §26 and (27,

constitutes a violation of Plaintiff's

right to Due Process, as guaranteed by

- Page 25a -

the Fifth Amendment to the United States

Constitution.

§63.) The non-disclosure of

information regarding the expectation of

payments by Defendants O'Connor and

Mitchell described in 436 (hereinafter

"non-disclosure"), as evidenced by the

contracts described in 429 and 430, which

resulted in the conspiracy described 431

and was concealed by the false sworn

statements described in 426 and 427,

constitutes a violation of Plaintiff's

right to Confront Witnesses, as

guaranteed by the Sixth Amendment to the

United States Constitution.

q64.) The conspiracy set forth in

{31 and the non-disclosure set forth in

{36 resulted in Plaintiff's wrongful

conviction in case number CR77-330V in

violation of the Due Process and

Confrontation clauses of the Fifth and

- 25 -

- Page 26a -

Sixth Amendments to the United States

Constitution.

965.) The conspiracy set forth in

931, the non-disclosure set forth in 436

and the wrongful conviction set forth in

939 and 464 resulted in violation of

Plaintiff's right to privacy by virtue of

Plaintiff's being subjected to coerced

disclosure of personal information during

the course of the presentence

investigation described in 440-442.

966.) Solely as a result of the

conspiracy set forth in 431, the non-

disclosure set forth in 436 and the

wrongful conviction set forth in 439 and

q64, Plaintiff was wrongfully deprived of

the Constitutional right to vote.

967.) Solely as a result of the

conspiracy set forth in 431, the non-

disclosure set forth in §36 and the

wrongful conviction set forth in 439 and

- 26 -

- Page 27a -

964, Plaintiff was wrongfully deprived of

the Constitutional right to associate

with persons of his choice.

968.) Solely as a result of the

conspiracy set forth in 431, the non-

disclosure set forth in 436 and the

wrongful conviction set forth in 439 and

964, Plaintiff was wrongfully deprived of

the Constitutional right of interstate

travel.

9§69.) Solely as a result of the

conspiracy set forth in 931, the non-

disclosure set forth in 436 and the

wrongful conviction set forth in 439 and

q64, Plaintiff was wrongfully deprived of

the Constitutional right to own firearms.

970.) Solely as a result of the

conspiracy set forth in 931, the non-

disclosure set forth in 436 and the

wrongful conviction set forth in 439 and

q64, Plaintiff was wrongfully subjected

- 37 «-

- Page 28a -

to loss of his good reputation from being

branded as a drug dealer.

971.) Solely as a result of the

conspiracy set forth in 431, the non-

disclosure set forth in §36 and the

wrongful conviction set forth in 439 and

964 and the various losses of

Constitutional rights set forth in §64-

970, Plaintiff was wrongfully subjected

to the intentional infliction of

emotional distress of an extreme nature

and for a period of several years.

972.) Solely as a result of the

conspiracy set forth in 431, the non-

- disclosure set forth in 436 and the

wrongful conviction set forth in 439 and

964, Plaintiff was falsely imprisoned as

set forth in §43 and 444.

973.) Solely as a result of the

false imprisonment set forth in 972,

Plaintiff was wrongfully subjected to

- 28 -

- Page 29a -

loss of income in the amount of

$5,000.00.

974.) Solely as a result of the

false imprisonment set forth in 472,

Plaintiff was wrongfully subjected to the

loss of household goods, furnishings,

clothing and other personal effects in

the amount of $10,000.00.

975.) Solely as a result of the

false imprisonment set forth in 472,

Plaintiff was wrongfully subjected to the

loss of his right of privacy in that his

incoming and outgoing mail was inspected

and read, his phone calls were monitored

and his belongings and person were

subjected to random searches.

476.) Solely as a result of the

false imprisonment set forth in §72,

Plaintiff was wrongfully subjected to

embarrassment and humiliation from random

strip searches, urinalysis and

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- Page 30a -

breathalyzer testing and being

transported in public places while

chained and manacled.

q77.) Solely as a result of the

false imprisonment set forth in 472,

Plaintiff Was wrongfully subjected to

physical distress from being forced to

subsist on sub-standard food and to sleep

on a steel bunk bed without adequate

mattress, resulting in an ulcer and back

pain.

q78.) Solely as a result of the

false imprisonment set forth in 972,

Plaintiff was wrongfully denied the

ability to exercise his visitation and

custody rights with his minor son.

979.) Solely as a result of the

false imprisonment set forth in 972,

Plaintiff was wrongfully subjected to the

intentional infliction of extreme

emotional distress from the false

- 30 -

- Page 31a -

imprisonment itself and from the various

hardships described in 973-478.

q80.) Solely as a result of the

wrongful and unconstitutional conviction

set forth in §39 and 464, plaintiff was

wrongfully denied his Constitutional

right to bail in case number CR79-108M

q48.

q¥81.) Solely as a result of the

wrongful and unconstitutional conviction

set forth in 439 and 464, Plaintiff was

wrongfully subjected to prosecution in

case number CR79-108M as a felon in

possession or receipt of firearms as set

forth in 449.

q¥82.) Solely as a result of the

wrongful and unconstitutional conviction

set forth in 439 and 464, Plaintiff was

wrongfully subjected to conviction on

multiple counts of being a felon in

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- Page 32a -

receipt or possession. .of firearms in case

number CR79-108M, as set forth in 951.

q¥83.) Solely as a result of the

wrongful and unconstitutional conviction

set forth in 439 and 464, Plaintiff was

wrongfully deprived of the right to

testify in his own behalf at trial in

case number CR79-108M, as set forth in

g50.

q¥84.) Solely as a result of the

wrongful and unconstitutional-conviction

set forth in 439 and 464 and the wrongful

conviction as a felon in possession or

receipt of firearms set forth in 482,

Plaintiff was wrongfully subjected to

false imprisonment in that he was

wrongfully required to serve substantial

additional time in custody as set forth

in 454.

q85.) Solely as a result of the

false imprisonment set forth in 484,

- 32 -

- Page 33a -

Plaintiff was wrongfully subjected to

loss of income in the amount of

$20,000.00.

q86.) Solely as a result of the

false imprisonment set forth in 9484,

Plaintiff was wrongfully subjected to a

violation of his Constitutional right of

privacy in that his incoming and outgoing

mail was inspected and read, his

telephone calls monitored, and his person

and belongings were subjected to random

searches.

487.) Solely as a result of the

false imprisonment set forth in 484,

Plaintiff was wrongly subjected to

humiliation and embarrassment from random

strip searches, urinalysis and

breathalyzer testing and being

transported in public places while

chained and manacled.

- 33-

- Page 34a -

q88.) Solely as a result of the

false imprisonment set forth in 484,

Plaintiff was wrongly subjected to

physical distress from being forced to

subsist on substandard food and to sleep

on various inadequate beds, resulting in

extreme back pain and an ulcer.

989.) Solely as a result of the

false imprisonment set forth in 484,

Plaintiff was wrongfully denied the

ability to exercise his visitation and

custody rights with his minor son.

990.) Solely as a result of the

false imprisonment set forth in 484,

Plaintiff was wrongfully denied the right

to visit his aging grandparents, with

whom he had an extremely close

relationship, and was prevented from

making a timely deathbed visit to his

grandfather.

- 34 -

- Page 35a -

991.) Solely as a result of the

false imprisonment set forth in 9484,

Plaintiff was wrongfully subjected to the

intentional infliction of extreme

emotional distress from the wrongful

imprisonment itself and from the varIous

deprivations set forth in 480-490.

992.) Solely as a reuslt of the

wrongful conviction set forth in 439 and

964, Plaintiff was wrongfully subjected

to false imprisonment by being required

to serve additional time in custody as

set forth in 955.

993.) Solely as a result of the

false imprisonment set forth in 955 and

(92, Plaintiff was wrongfully subjected

to loss of income in the amount of

$25,000.00.

994.) Solely as a result of the

false imprisonment set forth in 455 and

992, Plaintiff was wrongfully subjected

- 35 -

- Page 36a -

to a violation of his Constitutional

right to privacy in that his incoming and

outgoing mail was inspected and read, his

telephone calls were monitored, and his

person and belongings were subjected to

random searches.

995.) Solely as a result of the

false imprisonment set forth in 455 and

992, Plaintiff was wrongfully subjected

to humiliation and embarrassment from

random strip searches, urinalysis and

breathalyzer testing and being

transported in public places while

chained and manacled.

996.) Solely as a result of the

false imprisonment set forth in 955 and

992, Plaintiff was wrongfully subjected

to physical distress from being forced to

subsist on substandard food ard to sleep

on various inadequate beds, resulting in

extreme back pain and an ulcer.

- 36 -

- Page 37a -

997.) Solely as a result of the

false imprisonment set forth in 9455 and

992, Plaintiff was wrongfully denied the

ability to exercise his visitation and

custody rights with his minor son.

q98.) Solely as a result of the

false imprisonment set forth in §55 and

992, Plaintiff was wrongfully subjected

to the intentional infliction of

emotional distress from the wrongful

imprisonment itself and from the various

deprivations set forth in 993-497.

q99.) Solely as a result of the

wrongful conviction set forth in §39 and

964, the various false imprisonments set

forth in 443, 944, 472, §84 and 492 and

the loss of reputation set forth in 470,

Plaintiff was wrongfully denied the

opportunity to practice and advance in a

profession, resulting in the future loss

of wages in the amount of $1,000,000.

- 37 -

- Page 38a -

RELIEF SOUGHT

g100.) For the conspiracy to

violate Plaintiff's rights to Due Process

and Confrontation of khitnesses, as

guaranteed by the Fifth and Sixth

Amendments to the United States

Constitution, described in 931 and 461,

Plaintiff asks an award of punitive

damages in the amount of $1,000,000.00

each from Defendants Prins, O'Connor and

Mitchell.

9101.) For the actual violation of

Plaintiff's Fifth Amendment right to Due

Process set forth in 462, Plaintiff asks

an award of actual damages in the amount

of $2,000,000.00 each from Defendants

Prins, O'Connor, Mitchell, CMC and Soo

Line and an award of punitive damages in

the amount of $2,000,000.00 from each

Defendant.

- 38 -

- Page 39a -

g102.) For the actual violation of

Plaintiff's Sixth Amendment right to

Confrontation of Witnesses set forth in

963, Plaintiff asks an award of actual

damages in the amount of $2,000,000.00

each from Defendants Prins, O'Connor,

Mitchell, CMC and Soo Line and an award

of punitive damages in the amount of

$2,000,000.00 from each Defendant.

9103.) For the wrongful conviction

in case number CR7T-330V set forth in

Plaintiff asks an award of actual damages

in the amount of $1,000,000 .00 each from

Defendants Prins, O'Connor, Mitchell, CMC

and Soo Line and an award of punitive

damages in the amount of $1,000,000.00

from each Defendant.

9104.) For the violation of

Plaintiff's right to privacy set forth in

965, Plaintiff asks an award of actual

damages in the amount of $1,000,000.00

- 39 -

- Page 40a -

each from Defendants Prins, O'Connor,

Mitchell, CMC and Soo Line and an award

of punitive damages in the amount of

$1,000,000.00 from each Defendant.

g105.) For the wrongful denial of

the Constitutional right to vote set

forth in 966, Plaintiff asks an award of

actual damages in the amount of

$3,000,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $3,000,000.00 from each

Defendant.

9106.) For the wrongful deprivation

of the Constitutional right of

association set forth in 467, Plaintiff

asks an award of actual damages in the

amount of $3,000,000.00 each from

Defendants Prins, O'Connor, Mitchell, CMC

and Soo Line and an award of punitive

- 40 -

- Page 4la -

damages in the amount of $3,000,000.00

from each Defendant.

g107.) For the wrongful deprivation

of the Constitutional right of interstate

travel set forth in 468, Plaintiff asks

an award of actual damages in the amount

of $3,000,000.00 each from Defendants

Prins, O'Connor, Mitchell, CMC and Soo

Line and an award of punitive damages in

the amount of $3,000,000.00 from each

Defendant.

g108.) For the wrongful deprivation

of the Constitutional right to own

firearms set forth in 469, Plaintiff asks

an award of actual damages in the amount

of $5,000,000.00 each from Defendants

Prins, O'Connor, Mitchell, CMC and Soo

Line and an award of punitive damages in

the amount of $5,000,000.00 from each

Defendant.

os Ga =

- Page 42a -

g109.) For the wrongful loss of

reputation set forth in 470, plaintiff

asks an award of actual damages in the

amount of $5,000,000.00 each from

Defendants Prins, O'Connor, Mitchell, CMC

and Soo Line and an award of punitive

damages in the amount of $5,000,000.00

from each Defendant.

9110.) For the wrongful intentional

infliction of emotional distress set

forth in 471, Plaintiff asks an award of

actual damages in the amount of

$3,000,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $3,000,000.00 from each

Defendant.

g111.) For the false imprisonment

set forth in 972, Plaintiff asks an award

of actual damages in the amount of

$2,000,000.00 each from Defendants Prins,

- 42 -

- Page 43a -

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $2,000,000.00 from each

Defendant.

g112.) For the wrongful loss of

income set forth in 973, Plaintiff asks

an award of actual damages in the amount

of $1,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $50,000.00 from each Defendant.

9113.) For the loss of household

goods, furnishings, clothing and other

personal effects set forth in 474,

Plaintiff asks an award of actual damages

in the amount of $2,000.00 each from

Defendants Prins, O'Connor, Mitchell, CMC

and Soo Line and an award of punitive

damages in the amount of $50,000.00 from

each Defendant.

- 43 -

- Page 44a -

9114.) For the violation of the

Constitutional right to privacy set forth

in 475, Plaintiff asks an award of actual

damages in the amount of $1,000,000.00

each from Defendants Prins, O'Connor,

Mitchell, CMC and Soo Line and an award

of punitive damages in the amount of

$1,000,000.00 from each Defendant.

g115.) For the embarrassment and

humiliation set forth in 476, Plaintiff

asks an award of actual damages in the

amount of $5,000,000.00 each from

Defendants Prins, O'Connor, Mitchell, CMC

and Soo Line and an award of punitive

damages in the amount of $5,000,000.00

from each Defendant.

9116.) For the physical distress

set forth in 477, Plaintiff asks an award

of actual damages in the amount of

$1,000,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

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- Page 45a -

an award of punitive damages in the

amount of $1,000,000.00 from each

Defendant.

9117.) For the wrongful deprivation

of parental visitation and custody rights

set forth in 478, Plaintiff asks an award

of actual damages in the amount of

$2,000,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $2,000,000.00 from each

Defendant.

9118.) For the wrongful intentional

infliction of emotional distress set

forth in 479, Plaintiff asks an award of

actual damages in the amount of

$3,000,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $3,000,000.00 from each

Defendant.

- 45 -

- Page 46a -

9119.) For the wrongful deprivation

of the Constitutional right to bail set

forth in 480, Plaintiff asks an award of

actual damages in the amount of

$3,000,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $3,000,000.00 from each

Defendant.

9120.) For the wrongful prosecution

as a felon in possession or receipt of

firearms set forth in 481, Plaintiff asks

an award of actual damages in the amount

of $2,000,000.00 each from Defendants

Prins, O'Connor, Mitchell, CMC and Soo

Line and an award of punitive damages in

the amount of $2,000,000.00 from each

Defendant.

g121.) For the wrongful convictions

as a felon in possession or receipt of

firearms set forth in 482, Plaintiff asks

- 46 -

- Page 47a -

an award of actual damages in the amount

of $3,000,000.00 each from Defendants

Prins, O'Connor, Mitchell, CMC and Soo

Line and an award of punitive damages in

the amount of $3,000,000.00 from each

Defendant.

g122.) For the wrongful deprivation

of the Constitutional right to testify in

his own defense in case number CR79-108N

set forth in §83, Plaintiff asks an award

of actual damages in the amount of

$5,000,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $3,000,000.00 from each

Defendant.

g123.) For the wrongful false

imprisonment set forth in 984, Plaintiff

asks an award of actual damages in the

amount of $2,000,000.00 each from

Defendants Prins, O'Connor, Mitchell, CMC

- 47 -

- Page 48a -

and Soo Line and an award of punitive

damages in the amount of $2,000,000.00

from each Defendant.

9124.) For the wrongful loss of

income set forth in 485, Plaintiff asks

an award of actual damages in the amount

of $4,000.00 each from Defendants Prins,

C'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $50,000.00 from each Defendant.

g125.) For the wrongful violation

of Plaintiff's Constitutional right of

privacy set forth in 486, plaintiff asks

an award of actual damages in the amount

of $1,000,000.00 each from Defendants

Prins, O'Connor, Mitchell, CMC and Soo

Line and an award of punitive damages in

the amount of $1,000,000.00 from each

Defendant.

9126.) For the wrongfully inflicted

humiliation and embarrassment set forth

- 48 -

- Page 49a -

in §87, Plaintiff asks an award of actual

damages in the amount of $2,000,000.00

each from Defendants Prins, O'Connor,

Mitchell, CMC and Soo Line and an award

of punitive damages in the amount of

$2,000,000.00 from each Defendant.

9127.) For the wrongfully inflicted

physical distress set forth in 488,

Plaintiff asks an award of actual damages

in the amount of $2,000,000.00 each from

Defendants Prins, O'Connor, Mitchell, CMC

and Soo Line and an award of punitive

damages in the amount of $2,000,000.00

from each Defendant.

g128.) For the wrongful deprivation

of visitation and custody rights set

forth in §89, Plaintiff asks an award of

actual damages in the amount of

$2,000,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

- 49 -

- Page 50a -

amount of $2,000,000.00 from each

Defendant.

g129.) For the wrongful

interference with Plaintiff's

relationship with his grandparents set

forth in 490, Plaintiff asks an award of

actual damages in the amount of

$2,000,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $2,000,000.00 from each

Defendant.

9130.) For the wrongful intentional

infliction of emotional distress set

forth in 4991, Plaintiff asks an award of

actual damages in the amount of

$2,000,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $2,000,000.00 from each

Defendant.

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9131.) For the false imprisonment

set forth in 492, Plaintiff asks an award

of actual damages in the amount of

$1,000,600.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $1,000,000.00 from each

Defendant.

9132.) For the wrongfully imposed

loss of income set forth in 493,

Plaintiff asks an award of actual damages

in the amount of $5,000.00 each from

Defendants Prins, O'Connor, Mitchell CMC

and Soo Line and an award of punitive

damages in the amount of $50,000.00 from

each Defendant.

9133.) For the wrongful violation

of Plaintiff's Constitutional right to

privacy set forth in 994, Plaintiff asks

an award of actual damages in the amount

of $1,000,000.00 each from Defendants

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Prins, O'Connor, Mitchell, CMC and Soo

Line and an award of punitive damages in

the amount of $1,000,000.00 from each

Defendant.

9134.) For the wrongfully inflicted

humiliation and embarrassment set forth

in 9495, Plaintiff asks an award of actual

damages in the amount of $1,000,0006.00

each from Defendants Prins, O'Connor,

Mitchell, CMC and Soo Line and an award

of punitive damages in the amount of

$1,000,000.00 from each Defendant.

9135.) For the wrongfully imposed

physical distress set forth in 496,

Plaintiff asks an award of actual damages

in the amount of $1,000,000.00 each from

Defendants Prins, O'Connor, Mitchell, CMC

and Soo Line and an award of punitive

damages in the amount of $1,000,000.00

from each Defendant.

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g136.) For the wrongful deprivation

of parental visitation and custody rights

set forth in 497, Plaintiff asks an award

of actual damages in the amount of

$1,000,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $1,000,000.00 from each

Defendant.

9137.) For the wrongful intentional

infliction of emotional distress set

forth in 498, Plaintiff asks an award of

actual damages in the amount of

$1,000,000.00 each from Defendants Prins,

O'Connor, Mitchell, CMC and Soo Line and

an award of punitive damages in the

amount of $1,000,000.00 from each

Defendant.

9138.) For the wrongful loss of

future income set forth in 999 Plaintiff

asks an award of actual damages in the

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amount of $200,000.00 each from

Defendants Prins, O'Connor, Mitchell, CMC

and Soo and an award of punitive damages

in the amount of $1,000,000.00 from each

Defendant.

Vil

OTHER RELIEF SOUGHT

9139.) Plaintiff asks an award of

costs and attorney fees in an amount such

as the Court shall find reasonable.

9140.) Plaintiff asks for an award

of interest on the judgment in accordance

with the laws of the State of Washington.

9141.) Plaintiff asks for an order

expunging all records which were created

as a result of the wrongful conviction

and false imprisonments set forth above,

including but not limited to the entries

caused on Plaintiff's Federal Bureau of

Investigation "rap sheet", Plaintiff's

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Federal Bureau of Investigation

"Computerized Criminal History", record

maintained by the Department of Justice,

the Office of the United States Attorney

for the Western District of Washington,

the Federal Bureau of Prisons, the United

States Parole Commission, the Federal

Probation Service and an order directing

the Federal Bureau of Investigation to

send copies of Plaintiff's corrected

Federal Bureau of Investigation “rap

sheet" or "Computerized Criminal History"

to all agencies or persons who have

received that information since May 11,

1977.

VIII

JURY DEMAND

9142.) Plaintiff demands that the

case be tried to a jury.

DATED this 23rd day of June, 1988.

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Hugh Anerson bagley, Jr.

Plaintiff Pro Se

909 7th Street

Onawa, Iowa 51040

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.