# Opposition Brief — Bagley v. CMC Real Estate Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1992
- **Citation:** 502 U.S. 1091

## Text

‘a

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,
V.
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

aBCD Legal Printers Seattic Washington

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- Page i -

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

A.

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;

37

23

Sa

36

25

37

- 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 -

I.

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.

)
)
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- Page 2a -
I

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.

Il
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

- 20 -

- 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

- 21-

- 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.

IV

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)

re
“~

@)

S|

ri

.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 = -
=
a
7

has

43

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

- 29 -

- 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

- 31-

- 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 -
VI
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

- 44 -

- 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

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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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385010_2007%3A3. Public record. Not legal advice.