Tempest v. Remblad et al

1
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF RHODE ISLAND
____________________________________
)
RAYMOND D. TEMPEST, Jr. 	)
Plaintiff, 	)
)
v. 	) 	No. 1:20-cv-00523-MSM-LDA
)
RODNEY REMBLAD, et al. 	)
Defendants. 	)
____________________________________)
MEMORANDUM AND ORDER
Mary S. McElroy, United States District Judge.
This case brings to the Court’s attention a state criminal prosecution which
has received extraordinary notoriety in the crime annals of Rhode Island, stemming
largely from the nine years it took between the death of Doreen Picard1 and the
indictment of Raymond Tempest for murder; and not in small measure because of the
extent of the bad faith prosecutorial tactics uncovered in Mr. Tempest’s bid for relief
1 Susan Laferte, a tenant in the building in which Ms. Picard lived, was seriously
injured in the attack, and suffered significant memory loss.
	Tempest v. State, 141
A.3d 677, 680 (R.I. 2016). 	By referring to the Picard murder, the Court does not
intend to minimize at all the traumatic and critical injuries Ms. Laferte received.
Notwithstanding that one theory of the prosecution was that Mr. Tempest’s intended
victim was Ms. Laferte, and that Ms. Picard simply showed up at the wrong time, the
case has, in the courts and in the press, been most often referred to as the “Doreen
Picard murder.”
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after serving 23 years for a murder he maintains he did not commit.
	Tempest v.
State, No. PM20041896, 2015 WL 4389908, at *17-28 (R.I. Super. July 13, 2015).2
The 	defendants 	– 	the 	City 	of 	Woonsocket, 	then-Chief 	of 	Police 	Rodney
Remblad, and then-Police Detective Sgt. Ronald Pennington3 -- have moved to
dismiss, posing the question of whether there is any recourse available to Mr.
Tempest for law enforcement misconduct because, after serving 23 years and 7
months for second-degree murder, he voluntarily accepted a second conviction
following a successful appeal of his first conviction and failed to bring this action in
time.
Mr. Tempest brought this lawsuit seeking damages for many facets of the
prosecution. 	For the reasons explained below, the Court GRANTS the Motion to
Dismiss all counts except Count V.
2 The Rhode Island Supreme Court affirmed the grant of Mr. Tempest’s post-
conviction application. The trial court’s decision,
Tempest v. State, No. PM20041896,
2015 WL 4389908, at *1 (R.I. Super. July 13, 2015), is referred to throughout as
“
Tempest I.” The Supreme Court’s affirmance,
Tempest v. State, 141 A.3d 677, 680
(R.I. 2016), is referred to as “
Tempest II.”
3 Mr. Remblad is no longer Chief of Police, https://www.woonsocketri.org/police-
department; Mr. Pennington has been reported as retired. Woonsocket, investigators
seek dismissal of malicious-prosecution lawsuit (providencejournal.com) (April 7,
2021).
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I. 	BACKGROUND
This case has been written about many times. 	For years it was featured on
websites publicizing unsolved crimes.4 	The trial judge granting Mr. Tempest’s
application for post-conviction relief in 2015, did a yeoman’s job in succinctly
describing the now-40-year-old crime:
At approximately 3:20 on the afternoon of February 19, 1982, fifteen-
year-old Lisa Wells (Lisa or Ms. Ladue) came home to the triple-decker
apartment at 409 Providence Street in Woonsocket, Rhode Island. She
checked the mail, walked around the exterior of the building, and
entered the tenement home through the back door. En route, according
to her testimony at trial, she noticed an unfamiliar maroon car parked
in the driveway. 	When Lisa entered the building, she noticed three-
year-old Nicole Laferte (Nicole) sobbing in the hallway, saying that her
“mother was downstairs sick.” Lisa brushed off Nicole’s actions as a cry
for attention “because [she] heard some moving around downstairs” and
went up to her apartment.
Mr. Heath arrived home from work ten minutes later and, like Lisa,
entered the apartment building through the back. At the time he
arrived, the driveway was empty. When he walked in the rear hallway
on the first floor, he saw Nicole, still crying, and “[s]tanding at the door
to go down into the cellar.” Mr. Heath stopped and asked Nicole what
was wrong. Nicole replied that her mother was downstairs, “lying down.”
When Mr. Heath descended the stairs into the basement, he was met
with a grisly scene. As he stated at trial, “there was blood everywhere[;]
… it was on everything[,]… splattered … on the pipes[,] … on the washer
and the dryer [and] on the floor.” “[L]ooking across the cellar [,] [Mr.
4
	See, 	e.g., 	https://www.reddit.com/r/UnresolvedMysteries/comments/5h09qn/the_
1982_murder_of_doreen_picard_and_attempted/d Murder of Susan Laferte: Was an
Innocent 	Man 	Wrongly 	Convicted? 	(New 	“Trail 	Went 	Cold” 	Episode) 	:
UnresolvedMysteries (reddit.com). The Innocence Project included the case in its
“Guilty 	Plea 	Series.” 	https://innocenceproject.org/guilty-plea-series-the-case-of-
raymond-tempest/. 	The overturning of his conviction was similarly big news.
	See,
https://www.reuters.com/article/us-usa-rhode-island-tempest/rhode-island-mans-
1992-murder-conviction-overturned-on-dna-idUSKCN0PN2NA20150713;
https://www.dailymail.co.uk/news/article-3159633/Judge-overturns-Rhode-Island-
mans-1992-murder-conviction.html
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Heath] saw a body, a person, between the washer and the dryer sitting
.... [He] couldn’t recognize who th[e] person was [because there] was so
much blood[.]” Heath would later learn that this person was his upstairs
neighbor, twenty-two-year-old Doreen Picard. Next, he looked around
and saw Ms. Laferte on the left side of the basement, “lying face down
in a pile of -- puddle of blood.” Sensing the urgency of the situation, Mr.
Heath ran upstairs to call the police to get help for the two women who
had been so brutally attacked. He also grabbed two towels, presumably
hoping to render some first aid. However, when Mr. Heath returned
back to the cellar, he “just looked around” and realized “the towels
w[ould]n’t [be] of any help [.]”
Due to the extent of the injuries sustained and the deluge of blood at the
scene, first responders believed the attacks were the result of a shooting.
It was only later, upon Ms. Laferte’s admission to the hospital, that it
was learned the wounds were the result of blunt force trauma.
Tempest I at *2 (citations to state court record omitted).
The ensuing investigation was acknowledged by the prosecution to have been
“a disaster.”
Assistant Attorney General James Ryan (Mr. Ryan) stated at trial that
the severe lack of physical evidence was due to the fact that “the job [
i.e.,
the 	necessary 	investigatory 	procedures] 	didn’t 	get 	done” 	and 	that
“[e]very police officer from the Woonsocket Police Department seems to
have been there except for the ones who should have been there.”
Id. at
2066:20-23. Noting the “chaos” and “disorder” surrounding the collection
of evidence, Mr. Ryan went on to say that “the end result[ ] is that the
crime scene was contaminated.”
Id. at 2067:14-17. Nevertheless, four
days after the murder, the police were able to locate a lead pipe that Mr.
Ryan would later identify as the murder weapon at trial. Despite the
efforts of the Woonsocket Police Department, for nine long years no one
was charged in connection with this heinous act until, on June 5, 1991,
a Grand Jury indicted Mr. Tempest for the murder of Doreen Picard.
Id.
The chronology over the past four decades is important to this Court’s
discussion of the Motion to Dismiss.
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February 19, 1982: 	Doreen Picard found dead at her home.
June 5, 1991: 	Raymond Tempest indicted for murder.
April 1992: 	First trial, leading to conviction of 2nd degree murder.
Sentenced to 85 years in prison
January 11, 1995 : 	RI Supreme Court affirmed, 651 A.2d 1198 (RI 1995).
April 8, 2004: 	Post Conviction Relief (“PCR”) filed in Providence
Superior Court.
July 13, 2015: 	PCR granted, 2015 WL 4389908.
July 14, 2016: 	Grant of PCR affirmed, 141 A.3d 677 (RI 2016).
December 18, 2017: 	Tempest enters
Alford plea to 2nd degree murder,
sentenced to 23 years, 7 months’ time served.
December 17, 2020: 	Tempest files C.A. 1:20-cv-00523 in US District Court.
Law enforcement conduct throughout, encompassing the investigation, the first
conviction and, allegedly, the state’s continued prosecution after that conviction was
vacated, gave rise to the civil action now before this Court.
II. 	JURISDICTION AND STANDARD OF REVIEW
Mr. Tempest claims federal question jurisdiction, invoking 28 U.S.C. § 1331.
The core of his complaint is that the defendants violated his federal constitutional
rights, 	and 	he 	brings 	this 	action 	pursuant 	to 	42 	U.S.C. 	§ 	1983. 	He 	claims
supplemental jurisdiction over three state court claims. 	The instant matter is a
Motion to Dismiss, and the Court’s function is to examine the Complaint to determine
whether, with respect to each of the counts, it states a plausible claim for relief
pursuant to Fed. R. Civ. P. 12(b)(6). 	To survive a Motion to Dismiss, the plaintiff
must “plead[] factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged . . . . The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility
that a defendant has acted unlawfully.”
	Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
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(internal citation omitted). The reviewing court must assume the truth of all “well-
pleaded facts and give the plaintiff the benefit of all reasonable inferences therefrom.”
Thomas v. Rhode Island, 542 F.3d 944, 948 (1st Cir. 2008).
In this case the defendants do not contend that the Complaint lacks sufficient
factual allegations or fails the standard of “plausibility.” Instead, they seek dismissal
based on law: whether the malicious prosecution claims satisfy the legal elements of
the cause of action, whether the due process and related claims are barred by a rule
of judicial policy, and whether all claims run afoul of the statute of limitations.
III. 	ANALYSIS – SPECIFIC COUNTS
A. Counts I and VII - Malicious Prosecution; Count IX – Respondeat Superior
Count 	I 	sets 	forth 	a 	claim 	of 	constitutional-level 	malicious 	prosecution,
grounded 	in 	the 	Fourth 	and 	Fourteenth 	Amendments 	to 	the 	United 	States
Constitution. 	Count VII sets forth a common law state tort claim of malicious
prosecution. Both fail for the same reason. Also affected is that portion of Count IX
which claims that the City of Woonsocket is responsible on a respondeat superior
theory of liability for the malicious prosecution torts of its employees.
The constitutional and common law torts share three elements: “that ‘the
defendant 	(1) 	caused 	(2) 	a 	seizure 	of 	the 	plaintiff 	pursuant 	to 	legal 	process
unsupported by probable cause, and (3) criminal proceedings terminated in plaintiff’s
favor.’”
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 101 (1st Cir. 2013), quoting
Evans
v. Chalmers, 703 F.3d 636, 647 (4th Cir.2012) (constitutional claim);
Dyson v. City of
Pawtucket, 670 A.2d 233, 239 (R.I. 1996);
Clyne v. Doyle, 740 A.2d 781, 782 (R.I.
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1999) (common law claims). 	In the First Circuit until very recently, a termination
favorable to the plaintiff meant a disposition that at least “implie[s] innocence.”
Jordan v. Town of Waldoboro, 943 F.3d 532, 545 (1st Cir. 2019) (dismissal because
witness died did not imply innocence).
Accord, Jones v. City of Boston, 135 Fed. Appx.
439, 440 (1st Cir. 2005) (dismissal apparently as a compromise resolution was not
favorable).
While this Motion to Dismiss was pending, the United States Supreme Court
decided
Thompson v. Clark, ___ U.S. ___, 142 S. Ct. 1332 (Apr. 4, 2022). 	Rejecting
the basis of the First Circuit’s rule, the Court held that, as to the constitutional tort
of malicious prosecution, the prosecution at issue need only have ended without a
conviction.
Id., 142 S. Ct. at 1335. Although the Court did not explicitly mention the
First Circuit’s rule in its description of a conflict among the Circuits over the meaning
of “favorable termination,”
Jones had made clear that the phrase meant “facts
permitting the inference that the charges . . . were dismissed because [of] innocence
and there were no reasonable grounds to prosecute [].”
	Thompson has changed that
standard.
Mr. Tempest maintains that the
Alford plea he entered on December 18, 2017,
constituted a “favorable termination.” 	An
Alford plea is one in which a criminal
defendant maintains innocence while at the same time submitting to a judgment of
conviction and sentence. It takes its name from the case of
North Carolina v. Alford,
400 U.S. 25 (1970), in which the United States Supreme Court held that a criminal
trial court could enter a judgment of conviction and impose sentence on a defendant
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who protested innocence, so long as the prosecution provided a factual basis of guilt
for the plea. 	Ordinarily, 	a defendant’s
	nolo contendere or guilty plea would
demonstrate the factual basis required by Fed. R. Crim. P. 11 and comparable state
court rules. In the absence of that acknowledgment by a defendant claiming factual
innocence, the government’s proffer of facts amounting to guilt is sufficient.
Id.
Because it allows a criminal defendant to present a public persona of innocence
yet benefit from the negotiated sentence that generally accompanies a waiver of trial,
an
Alford plea may be considered a favorable outcome by a defendant reluctant to
publicly admit guilt whether because of actual innocence or an unwillingness to
acknowledge guilt.
	See generally Conklin, “The Alford Plea Turns Fifty: 	Why it
Deserves Another Fifty Years,” 54 Creighton L. Rev. 1 (2020). 	“An
Alford plea is an
arrangement in which a defendant maintains his innocence but pleads guilty for
reasons of self-interest.”
United States v. Taylor, 659 F.3d 339, 347 (4th Cir. 2011).
The law, however, is not concerned with a defendant’s public persona and both
Rhode Island and federal courts consider an
Alford plea, followed by the entry of a
judgment of conviction, to be an adjudication of guilt like a conviction entered after a
guilty plea. Rhode Island has held that an
Alford plea is the complete equivalent of
a guilty plea for purposes of conviction and is therefore not a “favorable termination”
as required for a malicious prosecution claim.
Armenakes v. State, 821 A.2d 239, 242
(R.I. 2003);
State v. Mattatall, 603 A.2d 1098, 1118 (R.I. 1992).
	Accord, Abimbola v.
Ashcroft, 378 F.3d 173, 181 (2d Cir. 2004) (“an Alford plea
is a guilty plea”) (emphasis
original). While an
Alford plea followed by conviction terminates the prosecution in
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a way that gives voice to the defendant’s claim of innocence, the resulting conviction
does not, on the part of the judicial institution, in any way imply innocence. 	To the
contrary, the court accepting the plea responds as if the plea were one of guilty.5
Because it
is a conviction, an
Alford plea does not meet the
Thompson standard and
the plea is fatal to both malicious prosecution claims. The Motion to Dismiss Counts
I and VII, and that portion of Count IX claiming respondeat superior liability on the
part of the City, is therefore GRANTED.6
5 This will come as no surprise to Mr. Tempest. At the time of the plea, the Superior
Court judge warned him that “if you enter an Alford plea, which is accepted by this
Court, that plea effectively constitutes a conviction regardless of the fact that you
maintain your innocence.” 	(ECF No. 12-3 at 2-3 (internal numbering), 12/18/17
hearing transcript.) 	Mr. Tempest responded that he understood.
	Id. Ordinarily a
Court is limited on a Motion to Dismiss to the allegations in the Complaint, but the
Alford plea is relied on by both parties who refer to it extensively and is incorporated
into Mr. Tempest’s Complaint as the basis for his contention that his case ended
“favorably.”
Cruz v. Melecio, 204 F.3d 14, 21 (1st Cir. 2000).
6 There is no room for flexibility or discretion in this ruling. 	State law establishes
that an
Alford plea results in a conviction, and both state and federal law now clearly
hold that any conviction fails to support a “favorable termination.” It is clear to the
Court that the state prosecutors deliberately used their leverage to push Mr. Tempest
into an
Alford plea, perhaps with intent to shield Woonsocket and its officers from a
subsequent civil action. 	Even a shred of consideration given to the effect of a
conviction on an action for damages would, in this Court’s opinion, border on malice
and amount to a violation of the prosecution’s public trust. The prosecution dangled
immediate release in front of Mr. Tempest as the carrot while wielding a powerful
sword: it informed him that if he were to stand trial a second time and be convicted,
the state would press for the same eighty-five years of jailtime (more being ordinarily
precluded by law) and appear at each and every one of his parole hearings to object
to parole for the rest of his natural life. (ECF No. 17-1, Affidavit of David Kendall, ¶
21.) While insisting after retrial on the same sentence is not itself either unusual or
indefensible, the threat to ensure that a first offender entitled by law to consideration
for parole
never gets it
is, in this Court’s experience, unusual. 	The trial judge’s
rulings, which clearly also influenced Mr. Tempest’s decisions, cannot be laid at the
feet of the prosecution but were invited by them. 	The state planned to
reintroduce
much of the evidence used in the first trial although it was contradicted by the
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B. 	Count II: Due Process
Multiple and egregious violations of due process in the prosecution of Mr.
Tempest turned what is supposed to be a level playing field into an uphill climb –
ultimately one he could not surmount at trial. 	The Court refers the reader to the
considered opinions of both the Rhode Island Superior Court
(Tempest I) and the
Supreme Court (
Tempest II) in vacating Mr. Tempest’s conviction on collateral
attack.
Adjectives such as “disast[rous]” used by a seasoned prosecutor in describing
the slipshod investigation that, nine years after Doreen Picard’s death swept Mr.
Tempest into a criminal courtroom, hardly do justice to the reality.
Meanwhile, the crime scene was “never properly secured” or “cordoned off”
while a swarm of officers packed into the basement. (Trial Tr. 2066:6-7, Apr.
20, 1992.) Nevertheless, the only person available to gather evidence was
“totally unfamiliar with B.C.I. procedures and the handling of the evidence.”
Id. at 2066:13-14. 	Midway through the night, the police captain arrived,
having “spent several hours in a bar” before taking the reins in directing the
processing of the scene.
Id. at 2068:7.
Tempest 	I 	at 	*2. 	The 	state 	conceded 	the 	crime 	scene 	was 	“contaminated,”
characterized by “chaos” and “disorder.”
Id.
But that was 	just the beginning. 	Preparing for trial, 	members 	of the
Woonsocket Police withheld favorable evidence, distorted evidence, and, at least in
spirit suborned perjury to bolster their case. 	Some examples from the extensive state
concealed exculpatory material.
	Id., ¶¶ 16, 17. 	In addition, the state moved –
successfully – to exclude testimony from an expert on police practices who the state
conceded was “phenomenally qualified” to testify. 	The rulings from the Superior
Court judge, predominantly in favor of the prosecution, reinforced Mr. Tempest’s fear
of re-conviction.
Id., ¶ 20.
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court decisions give but a flavor of the lengths to which Woonsocket law enforcement,
and the chief state prosecutor, went to ensure a conviction.7 	Donna Carrier, for
example, was an important potential witness who claimed that Mr. Tempest had
confessed to her. The state was in possession, however, of statements she had given
lead prosecutor James Ryan that contradicted her assertions about the involvement
of Mr. Tempest’s brother, Gordon Tempest, in allegedly concealing the crime.
These statements would have undermined her credibility about other matters.8
Tempest I at *19. 	Yet not only were those statements not disclosed to the defense,
but Mr. Ryan also actually
directed Ms. Carrier
not to include these “discrepancies”
in her testimony because, he wrote in his notes, “too late, don’t volunteer new info,
will cause big problems.”
Id. Woonsocket Sgt. Pennington9 admitted at trial that he
had coached witnesses, “suggest[ing] facts the witness had not raised to prod their
memory”; others in Woonsocket law enforcement “fed witnesses information in an
effort to move the case against Mr. Tempest forward.”
	Id. at 21. 	“[W]itnesses
adopt[ed] different or completely new versions of events to match theories held by
their police interviewers.”
Id.
Significantly, the state relied heavily on the testimony of fifteen-year-old
7 No individuals working on the prosecution in the Department of the Attorney
General have been sued.
8 The failure to turn over material evidence adversely affecting the credibility of
government witnesses comes within the
Brady rubric.
	Giglio v. United States, 405
U.S. 150
, 154 (1972).
9 Sgt. Pennington, who had only one year’s experience as a detective at the time,
headed the investigation.
Tempest I at *23.
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tenant Lisa Ladue that, when she arrived home in mid-afternoon, she saw a maroon
car in the driveway of 409 Providence Street where Doreen Picard was killed. 	The
government’s theory was that a friend of Mr. Tempest’s named Monteiro borrowed a
maroon vehicle owned by John McMann to drive Mr. Tempest to the Providence
Street apartment. The maroon car – coupled with the conjecture that it was used to
ferry Mr. Tempest around – was the only evidence linking Mr. Tempest to the crime
scene. 	Prosecutors, however, concealed the fact that both Mr. McMann and his son
Kevin, who often borrowed the car, told Woonsocket Police while the trial was ongoing
“that he never loaned it out” and specifically that he had not loaned it to Mr. Monteiro
that day.
	Tempest I at *17,
Tempest II at 690 (Suttell, CJ, concurring). 	Those
statements, Superior Court Judge Daniel A. Procaccini found, tended to show that
another witness was mistaken when she claimed to have seen Mr. Tempest standing
by the maroon car in the driveway, since the statements impeached the state’s theory
that Mr. Monteiro had driven him there.
Tempest I at *17.10 Woonsocket police even
10 “The statement by Ms. Ladue that she saw a maroon car upon returning home the
afternoon of the murder, and the corresponding testimony from Ms. Richards that
she saw Mr. Tempest standing by a maroon car driven by Mr. Monteiro that same
afternoon, constitute the evidence linking Mr. Tempest to the crime scene at the
appropriate time.”
	Tempest I at *19 (emphasis original). 	Due to the suggestive
questioning of Woonsocket police, Ms. Richard’s story over the ten times she was
interviewed (“a barrage of recurrent suggestive questioning”) “shifted in lockstep with
the State’s theory of the case.”
Id. at *26.
The 	extent 	to 	which 	law 	enforcement 	tried 	to 	influence 	witnesses 	to
incriminate Mr. Tempest was very clearly shown in a recording of a potential witness
named Shaw who was interviewed in a bar at 11 p.m. by defendant Remblad.
According to Judge Procaccini, the Commander “fed a motive” to the witness and
coached him on how the murder had taken place.
	Tempest I at *27. 	A piece of the
interview, in which Shaw referred to Mr. Tempest as “Beaver,” is the following:
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concealed this critical information from the lead prosecutor who never knew of it.
Mr. Tempest’s struggle to vacate his conviction – his “marked doggedness” as
described by Judge Procaccini in rejecting the state’s claim that he had delayed too
long -- was virtually Herculean.11	
Tempest I at *6-7. A high school dropout lacking
the funds to hire an attorney,
Tempest I at *5, Mr. Tempest first mounted a campaign
to find someone to take his case. Enlisting the help of volunteers, some without any
“Shaw: Beaver didn’t do it.
“Remblad: Well who did it then?
“Shaw: Beaver didn’t do it man.
“Remblad: Well who did it?
“[ … ]
“Shaw: I mean it, Beaver didn’t do it. Beaver didn’t do it.
“Remblad: Well then who did Danny?
“Shaw: You, you real, do you really think Beaver did it?
“Remblad: I do. [ … ] They’ve got good evidence the police.
“[ … ]
“Shaw: Through all your professional fucking … I think he did it too.”
Tempest I at *27 (citations to state court record omitted). Ultimately, Shaw did not
testify.
Id.
11 Judge Procaccini used precisely that term in describing “the Herculean task of
investigating 	Mr. 	Tempest’s 	case 	…. 	The 	staggering 	enormity 	of 	such 	an
undertaking.”
Tempest I at *8. He noted that a law firm representing Mr. Tempest
pro bono in state court “committed six lawyers to this case, expended over 6000
attorney and staff hours, and spent in excess of $161,000 in investigatory expenses
since 2012 in bringing Mr. Tempest’s [2015] petition.”
Id.
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legal training and one spending thousands of dollars out of her own pocket to hire an
investigator, he and the friends and family he recruited scoured records and mounted
a letter drive to obtain professional legal help. 	For three whole years, they reached
out to the New England Innocence Project (“NEIP”) until finally inducing the agency
to investigate the case in 2003. It took six years before the NEIP “expanded its case
review to include evaluation of [the instant] postconviction issues.”
	Id. at *6. 	The
next
decade was spent trying to obtain DNA testing; those results did not come until
2015.
Id.
In a case in which “not a shred of physical evidence tie[d] Mr. Tempest to the
scene,”
Tempest I at *16, the effect of the skewing of the evidence by prosecutorial
misdeeds cannot be overstated. 	But this Court need not assess the effect of that
misconduct in the criminal case: the state courts have done that already by vacating
his first conviction.
The task now at hand is to determine whether Mr. Tempest can proceed past
the gateway of Fed. R. Civ. P. 12(b)(6) in pursuing a demand to be compensated
monetarily for the injuries he suffered at the hands of those who were supposed to be
doing justice not only to the victims of the heinous attack at 409 Providence Street
but also to the man who was accused of carrying it out.
There is no question that Mr. Tempest has pled a plausible claim that his due
process and fair trial rights were violated.
Brady v. Maryland, 373 U.S. 83, 87 (1963),
has long required that the prosecution turn over to the defense requested evidence
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favorable to the accused.12 	Beyond
Brady, the government must conduct itself fairly
in its apprehension, investigation, and litigation tactics:
It is axiomatic that the government must turn square corners when it
undertakes a criminal prosecution. 	This axiom applies regardless of
whether the target of the prosecution is alleged to have engaged in the
daintiest of white-collar crimes or the most heinous of underworld
activities.
Ferrara v. United States, 456 F.3d 278, 280 (1st Cir. 2006) (plea vacated where
prosecution failed to disclose that key witness had recanted). 	At their core, rules
regarding the prosecutorial obligation to turn over material evidence to the defense
that casts doubt on the government’s case exist to safeguard the fundamental right
to a fair trial, the touchstone of due process.
	Smith v. Phillips, 455 U.S. 209, 219
(1982);
Conley v. United States, 415 F.3d 183, 193 (1st Cir. 2005) (failure to disclose
FBI memorandum undercut right to fair trial).
The first difficult obstacle that Mr. Tempest must overcome is not the need to
demonstrate a plausible claim. 	Instead, it is to surmount the hurdle that may be
presented by
Heck v. Humphrey, 512 U.S. 477 (1994).
	Heck reflected the Supreme
Court’s unwillingness to see civil actions substitute for habeas corpus petitions to
challenge criminal conviction.13 	Beyond that, its concerns were twofold: a desire to
12 The question of whether there is any estoppel effect from the state court fact-finding
may at some point need to be reached.
13 This concern has led some Circuits to hold that the
Heck bar does not apply to one
who has no recourse to a petition for habeas corpus, reasoning that if
habeas is
unavailable to the plaintiff, the civil action is not a subterfuge to avoid the collateral
attack. Thus, for example, in
Cohen v. Longshore, 621 F.3d 1311, 1316-17 (10th Cir.
2010), the plaintiff was an ICE detainee who had been transferred out of ICE custody,
rendering any
habeas challenging his detention moot. 	Because he no longer had a
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preclude parallel actions in the form of ongoing civil actions while a criminal
prosecution was still pending; and the desire to avoid inconsistent results (a favorable
civil action establishing unlawful defects in convictions still standing).
To avoid these unwanted situations, the Court crafted a rule that bars civil
litigation that impugns the integrity of a criminal conviction
unless the conviction
has already been questioned. 	It can be called into question by being “reversed on
direct appeal, expunged by executive order, declared invalid by a state tribunal
authorized to make such determination, or called into question by a federal court’s
issuance of a writ of habeas corpus.”
	Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir.
1998). Impugning the integrity of the conviction (or a sentence) means “imply[ing its]
invalidity.”
Thore v. Howe, 466 F.3d 173, 179 (1st Cir. 2006).
In this case, Mr. Tempest contends that constitutional due process violations
led to the conviction entered in 1995 following his trial.
	That conviction, whose
validity is (and, indeed, was) “called into question” by the claims in the instant civil
action,
was invalidated: it was vacated by the Rhode Island Superior Court, and that
ruling was upheld by the Rhode Island Supreme Court. The conviction that remains
remedy in habeas corpus, the Tenth Circuit held that
Heck was not a bar to a civil
action.
Id., 621 F.3d at 1317. The First Circuit has been described as unsympathetic
to this reasoning.
	Cohen at 1315-16, citing
Figueroa v. Rivera, 147 F.3d 77, 81 (1st
Cir. 1998), which noted that there is no “equitable exception” to
Heck in the case of
the estate of a convicted felon who had died before being able to pursue a
habeas
petition challenging his conviction.
	Accord, Entzi v. Redmann, 485 F.3d 998, 1003
(8th Cir. 2007) (if there is an exception to
Heck for those without recourse to habeas
corpus, it is for the United States Supreme Court to declare it).
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was not the product of the constitutional infirmities Mr. Tempest complains of - it
stemmed from an
Alford plea whose integrity is not impugned by the civil action.
Several courts have assessed
Heck in this context, where a first conviction
allegedly resulted from constitutional violations for which the defendant-turned-
plaintiff seeks civil recompense, but after which a second conviction was entered. If
the integrity of the second conviction is not impugned by the civil action, they have
ruled, there is no
Heck bar because the
first conviction that
is impugned had in fact
been invalidated. Where this has happened, a successful civil verdict does not even
implicitly challenge the second conviction, the only one left standing. 	There are no
parallel ongoing proceedings which could result in inconsistent determinations. And,
finally, since the “tainted” conviction has already been vacated, it cannot be attacked
by habeas corpus, so
Heck’s concern that the civil action not improperly substitute
for a
habeas petition is not implicated.
Support for this construct comes from a line of cases following
Poventud v. City
of New York, 750 F.3d 121 (2d Cir. 2014) (en banc).
Poventud articulated that
Brady
claims “necessarily imply the invalidity of the challenged conviction in the trial (or
plea)
in which the Brady violation occurred.” 	Id. at 132 (emphasis original). 	In
Poventud, where there was a conviction overturned and subsequent plea to a lesser-
included offense, the Court held that the civil action was not inconsistent with a
“clean 	conviction, 	untainted 	by 	the
	Brady 	violation 	associated 	with 	the 	1998
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conviction.”14	
Id. at 136. 	A helpful analytic piece is that
Poventud distinguished
between civil actions focused on the
process and those essentially challenging the
outcome.
Id. at 138.
Dennis v. City of Philadelphia, 379 F. Supp. 3d 420 (E.D. Pa. 2019), adopted
the
Poventud reasoning and re-framed the inquiry in a two-conviction case into a
helpful question: would success in the civil action undermine one or both convictions?
If so, has the conviction that would be undermined been invalidated?15 In that case,
the defendant had initially served twenty-five years on death row before ultimately
pleading
nolo contendere to a reduced charge. Because the civil action, alleging due
process and fair trial denials, bore only on the initial conviction and related to the
“process” rather than ultimate guilt or innocence, the district court held there was no
Heck bar.
Id. at 430.
Jackson v. Barnes, 749 F.3d 755 (9th Cir. 2014), involves facts similar to those
in
Poventud. 	The defendant was convicted of murder then, after reversal, he was
convicted again at a trial at which the illegally obtained evidence was not used. He
sued for a violation of
Miranda. Although the Court noted he would likely be entitled
only to nominal damages because of the subsequent conviction, it held the civil action
14 Poventud was convicted of attempted murder and other crimes. Those convictions
were ultimately vacated, and he pled guilty to a lesser crime for time served. He then
sued for
Brady violations. The Circuit reversed the district court which had held the
civil lawsuit
Heck-barred.
15 One district court has framed the question in an interesting way: “is there a “logical
inconsistency” between the civil action and the conviction? 	If so, the civil action is
Heck-barred.
	Veneziale v Deichman, C.A. No. 14-6015, 2018 WL 3122066, at *8
(D.N.J. June 25, 2018).
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not
Heck-barred. That conviction was already vacated when the Circuit had granted
an earlier
habeas petition, and a successful civil action would have no bearing on the
second conviction.
	Id. at 760.
	Easterling v. Moeller, 334 Fed. App’x 22, 24 (7th Cir.
2009), is consistent, finding no
Heck bar because the plaintiff’s civil action claiming
a Fourth Amendment violation did not imply the invalidity of a conviction produced
by a guilty plea: 	“[B]ecause Easterling was convicted following a guilty plea, ‘the
validity of that conviction cannot be affected by an alleged Fourth Amendment
violation because the conviction does not rest in any way on evidence that may have
been improperly seized.’”
Id., (quoting
Haring v. Prosise, 462 U.S. 306, 321 (1983)).
The correctness of an analysis separating the two convictions in this kind of
case and barring the civil action
only if the conviction whose integrity is impugned
has not been invalidated receives strong support from a First Circuit pre-
Poventud
opinion written by Chief Judge Sandra Lynch. 	A second pre-
Poventud opinion
provides support for the idea that in a case like this the two convictions are not
fungible, and the
Heck analysis is not broad-brush but instead affects only those
convictions “necessarily” impugned by the civil action.
Olsen v. Correiro, 189 F.3d 52
(1st Cir. 1999), involved a civil rights lawsuit for damages for prosecutorial failure to
disclose evidence. After his murder conviction was overturned, the defendant pleaded
to a charge of manslaughter in return for a sentence of time served. The First Circuit
held that the plaintiff could recover damages associated with the constitutionally bad
murder trial and conviction, but not for the incarceration since that was supported
by the untainted plea sentence.
	Id. at 69-70. 	While
Olsen focuses on the damages
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claim, it upheld the award of damages for the consequences of the constitutionally
infirm first conviction even though it had been followed by an untainted conviction
based on a plea that was still intact. Other Courts have held the same.
E.g.,
Taylor
v. County of Pima, 913 F.3d 930, 935 (9th Cir. 2019) (where plaintiff’s 2013 conviction
resulted in a plea and sentence to time served, he could not recover damages for
unlawful conviction resulting from his 1972 subsequently vacated conviction).
While
Brady cases analyzed under
Heck are less frequent,16 there is a strong
line of cases adopting the
Poventud reasoning where the civil action claims a
constitutional violation unrelated to guilt or innocence. In a pre-
Poventud decision,
the First Circuit held a § 1983 excessive force claim
not Heck-barred. The opinion in
Thore v. Howe, was based on the same logic as
Poventud, and reasoned that while a
claim based on the contention that the plaintiff did not commit an assault at all
was
barred, an excessive force claim would be similarly precluded only if it were
“interrelated factually” with the conviction. 	466 F.3d at 180.17 	A number of other
courts have ruled consistently with
Thore that success in an excessive force civil
action would not impugn the integrity of the conviction since the excessive force
claims concern independent police action occurring before the criminal proceedings.
E.g.,
Ballard v. Burton, 444 F.3d 391, 399-400 (5th Cir. 2006) (excessive force);
16
But see Rosales-Martinez v. Palmer, No. 3:10-cv-00748-MMD-VPC, 2017 WL
3710068 (D. Nev. Aug 28, 2017) (
Brady civil claims not
Heck-barred although a claim
relating to the lawfulness of the sentence was).
17
Thore noted but did not elaborate on Judge Selya’s comment in
Figueroa, supra at
n. 12, that there is no “equitable exception” to
Heck.
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Smithart v. Towery, 79 F.3d 951, 953 (9th Cir. 1996) (claim that plaintiff arrested
without probable cause barred by
Heck but excessive force claim not);
Vangilder v.
Baker, 435 F.3d 689, 692 (7th Cir. 2006) (excessive force challenge may be maintained
without implying the invalidity of the resisting arrest conviction).
Accord, Harden v.
Pataki, 320 F.3d 1289, 1298 (11th Cir. 2003) (actions challenging extradition are not
related to guilt or innocence “and therefore do not impugn [the] conviction or
sentence”);
Ove v. Gwinn, 264 F.3d 817, 823 (9th Cir. 2001) (civil challenge to blood
draw not
Heck-barred where convictions were “
derive[d] from their pleas, not from
verdicts obtained with supposedly illegal evidence. The validity of their convictions
does not in any way depend upon the legality of the blood draws.”) (emphasis in
original).
This view is supported by language in
Heck itself which suggested that because
of doctrines such as independent source or inevitable discovery a civil claim for
unlawful search might not necessarily imply that the conviction was unlawful.
Heck
v. Humphrey, 512 U.S. at 487, n.7.
See Lockett v. Ericson, 656 F.3d 892, 896-97 (9th
Cir. 2011) (§ 1983 action for warrantless search not
	Heck-barred because the
conviction was derived from a plea, not from evidence seized during search);
Moore v.
Sims, 200 F.3d 1170, 1171-72 (8th Cir. 2000) (no-probable-cause search claim not
barred by
Heck but claim that cocaine was planted was). 	The Supreme Court has
called attention to the fact that it used the word “necessarily” deliberately in holding
that actions are barred only if they “necessarily” call into question the lawfulness of
a conviction still outstanding.
Nelson v. Campbell, 541 U.S. 637, 647 (2004). In this
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case, Mr. Tempest’s claims are aimed at the first conviction, not the second and,
therefore, they are not barred by
Heck.
This would be the end of the matter and the due process claim of Count II could
proceed unimpeded were it not for a limitations question. While state law determines
the applicable limitations period, federal law determines the accrual date.
McIntosh
v. Antonino, 71 F.3d 29, 34 (1st Cir. 1995). 	The defendants maintain that the due
process action accrued when the first conviction was invalidated, removing any
Heck
bar. 	That would mean an accrual date of either July 13, 2015, when the state PCR
was granted or, at the latest, July 14, 2016, when the Supreme Court affirmed. 	In
either event, the limitations period would have expired at least 18 months before
December 18, 2020, when this action was filed. There is some support for this position
in
McDonough v. Smith, ___ U.S. ___, 139 S. Ct. 2149, 2158 (2019), which held that
the statute of limitations in a lawsuit for fabricated evidence accrued when the
criminal prosecution terminates in the plaintiff’s favor “or a resulting conviction has
been invalidated” within the meaning of
Heck. In that case, the acquittal marked the
end of the prosecution.
Mr. Tempest maintains that the action did not accrue until the prosecution
terminated with his
Alford plea, conviction, and sentence to time served. According
to him, the action was filed one-day shy of the limitation’s expiration.
See chronology,
supra at Part I.
The pivotal question is whether
Heck would have been a bar to filing this
lawsuit after the first conviction was overturned but while the criminal charges were
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still pending. 	According to the Complaint, the state threatened to use at a second
trial much of the very same infirm evidence that had caused the reversal in the first
place. 	(ECF No. 1, ¶ 250). 	And, indeed, again according to the Complaint, the
Superior Court had denied Mr. Tempest’s motions in limine to exclude that evidence
from the later prosecution. Thus, Mr. Tempest argues, had a conviction resulted after
a second trial, the civil action would “impugn” its validity and
Heck would be a bar.
He argues that he could not be expected to file this civil action until the possibility of
that prospect no longer existed.18
At one time, there was some federal support for that position. 	The Tenth
Circuit had held that because
Heck precludes a § 1983 claim relating to pending
charges if a judgment in the civil action for the plaintiff would “necessarily imply the
validity of any conviction or sentence that might result from prosecution of the
pending charges,” the civil action could not be brought until the criminal charges were
disposed of.
Beck v. City of Muskogee Police Dept., 195 F.3d 553, 557 (10th Cir. 1999),
and its progeny. 	That view, however, was undercut by
Garza v. Burnett, 672 F.3d
18 The Court is mindful of the fact that the state of the law with respect to
Heck allows
a situation to exist in which prosecutors who had committed or permitted the
commission of violations of constitutional rights would be incentivized to continue
prosecutions in order to protect themselves from the consequences of the earlier
constitutionally infirm prosecution. 	Instead of dismissing cases that should be
dismissed they would instead benefit from forcing a plea, even an
Alford plea, and
threatening 	lengthy 	further 	prison 	in 	order 	insulate 	themselves 	from 	the
consequences of their prior bad acts. While the Court does not opine about whether
that was the state of play in this case it is interesting to note that the prosecution’s
threat to use infirm evidence and seek more prison time had Mr. Tempest proceeded
to trial certainly indicates that it may well have been the case here. 	This systemic
flaw, however, is one that cannot be resolved within the context of this case.
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1217, 1218 (10th Cir. 2012), which recognized the holding of
Wallace v. Kato, 549 U.S.
384, 388 (2007), that “
Heck’s bar and its principle of deferred accrual do not apply to
anticipated conviction.” The Seventh Circuit, in a post-
Wallace decision has held that
Heck is not a bar to a civil action if criminal proceedings are simply pending and there
has yet been no conviction.
Jamison v. Urban, 411 Fed. Appx. 919, 921 (7th Cir. 2011)
(
Heck delays accrual only when there exists a conviction or sentence that has not
been invalidated; it does not bar suits that would call into question anticipated
convictions.).
The First Circuit has not addressed this question, but it seems clear under
Wallace v. Kato that Mr. Tempest’s argument that he was precluded by
Heck from
bringing this action until September 18, 2017, when the case finally terminated,
would not be successful.19 	The Court is thus constrained to hold that the cause of
action accrued no later than July 14, 2016, and the three-year statute of limitations
expired. The Motion to Dismiss Count II is therefore GRANTED.
19 Had Mr. Tempest brought this action while the criminal charges were pending, it
could have been stayed until such time as they were resolved, satisfying
Wallace v.
Kato. 	“[I]t is within the power of the district court, and in accord with common
practice, to stay the civil action until the criminal case or the likelihood of a criminal
case is ended. If the plaintiff is ultimately convicted, and if the stayed civil suit would
impugn that conviction,
Heck will require dismissal; otherwise, the civil action will
proceed, absent some other bar to suit.”
	Wallace, 549 U.S. at 393-94. 	That course
has been followed in this Circuit.
Crooker v. Burns, 544 F. Supp. 2d 59, 65 (D. Mass.
2008) (civil action stayed).
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C. Count III: Civil Rights Conspiracy
A conspiracy to violate civil rights, actionable under 42 U.S.C. § 1983, consists
of an agreement between two or more people to do an unlawful act or to commit a
lawful act by unlawful means.
	Sanchez v. Foley, 972 F.3d 1, 11 (1st Cir. 2020). 	In
addition to the agreement, which must have a common purpose among the co-
conspirators, a plaintiff must show that a deprivation of constitutional rights in fact
occurred.
	Id. 	“To establish a civil rights conspiracy, a plaintiff must show ‘not only
a conspiratorial agreement but also an actual abridgement of some federally secured
right.’”
	Id. (quoting
Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cit. 2001)). 	The
conspiracy is simply a construct by which persons who did not themselves commit the
unlawful act may be held liable for it because they were co-conspirators.
Sanchez, at
11. 	“[A] conspiracy under section 1983 permits a jury to hold co-conspirators liable
for the damages 	flowing from a constitutional deprivation that all of the co-
conspirators may not have personally carried out.”
Id.
The statute of limitations runs not from the date of the forging of the
agreement, but parallel with the limitations period of the alleged deprivations of
rights. “In the context of a conspiracy to violate civil rights, the statute of limitations
runs separately from each action constituting a civil rights violation that causes
actual damage to the plaintiff.”
	Nieves, 241 F.3d at 51. 	In this case, Mr. Tempest
has alleged that the conspiracy was pursued to maliciously prosecute him, coerce him,
deprive him of liberty without due process, and to deprive him of access to courts and
executive clemency. All the specific acts alleged to have been taken in furtherance of
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the conspiracy concern the investigation of the crime, the first trial, and the first
conviction: 	in short, the activities alleged to have been unlawful in Mr. Tempest’s
post-conviction relief action. 	The substantive deprivation of rights, then, which the
agreement was entered into to accomplish, occurred during
that prosecution which
resulted in the 1995 conviction. Ordinarily, then, the three-year statute of limitations
would have run.
If
Heck v. Humphrey had barred the due process claim until the
Alford plea in
2017, the conspiracy claim might not have accrued until then. 	But for the same
reasons that the
Heck bar was removed at least by 2016 with the affirmance of the
PCR, the limitations period had expired before this action was filed. Therefore, this
claim, insofar as it alleges a conspiracy to deprive of due process rights, is limitations
barred and the Motion to Dismiss Count III is therefore GRANTED.
D. 	Count IV: Failure to Intervene
A failure to intervene claim has three elements: (a) that there was in fact a
substantive violation of a plaintiff’s constitutional rights; (b) that a law enforcement
defendant had the opportunity to intervene in order to prevent that violation but did
not do so; and (c) that it was objectively unreasonable for the defendant to believe
that the plaintiff’s rights were not being violated.
Ying Liv. City of New York, 246 F.
Supp. 3d 578, 619 (E.D.N.Y. 2017). 	The acts alleged to support a claim that the
defendants failed to intervene to stop the deprivation of rights all occurred during the
investigation, prosecution, and trial the first time around. 	They are spelled out in
the Complaint:
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A. 	Failing to intervene to prevent or stop the fabrication of witness
statements by Ronald Vaz, John Guarino, Donna Carrier, Loretta
Rivard, Sherri Richards, and Lisa Ladue.
B. 	Failing to intervene to stop the concealment and suppression of
Brady material by AAG Ryan, including exculpatory statements by
witnesses Donna Carrier, Kevin McMann, and John McMann.
(ECF No. 1, ¶ 295.) It is not clear that
Heck v. Humphrey would even apply to this
claim, but if it did, it would not toll the statute of limitations for reasons expressed
above. 	Therefore, because all the acts comprising the alleged failure to intervene
were committed well prior to December 17, 2017, the statute of limitations ran. The
defendants’ Motion to Dismiss this Count is GRANTED.
E. 	Count V: Municipal Liability
Mr. Tempest alleges that the City of Woonsocket is liable pursuant to the
municipal liability doctrine of
Monell v. Dept. of Soc. Services of City of New York,
436 U.S. 658 (1978).
	Monell held that a municipality is liable for the actions of its
employees only if the constitutional violations committed by the employees grew out
of an official “policy or custom” of the municipality.
Id. at 694. Municipalities are not
liable for the actions of its tortfeasor employees by virtue of respondeat superior
. 	“[I]t
is when execution of a government’s policy or custom, whether made by its lawmakers
or by those whose edicts or acts may fairly be said to represent official policy, inflicts
the injury that the government as an entity is responsible under § 1983.”
Id.
In this kind of case, the plaintiff does not have to allege that municipal policy
actively
directed the failure to disclose exculpatory evidence, or trained police to
encourage perjured testimony. 	It is enough if the allegations make it “entirely
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plausible that the [unconstitutional] conduct was encouraged, or at least tolerated,
by the [municipality.]”
	Haley v. City of Boston, 657 F.3d 39, 53 (1st Cir. 2011).
Alternatively, municipal liability may be based on a failure to properly train its
officers, resulting in the commission of a constitutional tort.
	Kennedy v. Town of
Billerica, 617 F.3d 520, 531-32 (1st Cir. 2010).
The statute of limitations applicable to a
Monell claim against the municipality
is not necessarily the same as that which governs actions against individuals in the
employ of the municipality.
Since an actionable claim under § 1983 against a county or municipality
depends on a harm stemming from the municipalities ‘policy or custom,’
… a cause of action against the municipality does not necessarily accrue
upon the occurrence of a harmful act, but only later when it is clear, or
should be clear, that the harmful act is the consequence of a county
‘policy or custom.’”
Pinaud v. County of Suffolk, 52 F.3d 1139, 1157 (2d Cir. 1995).20
In
Ouellette v. Beaupre, 977 F.3d 127 (1st Cir. 2020), the statute of limitations
had run against the police officer who allegedly committed sexual assault on the
plaintiff. The Circuit held, though, that it did not even
begin to run until social media
postings many years later gave the plaintiff reason to learn of the City’s deliberate
indifference to allegations of sexual assault by members of the police force.
Id. at 133.
Here, Mr. Tempest contends that the conduct that could lead to
Monell liability
20 Although
Lawson v. Rochester City School Dist., 446 Fed. Appx. 327, 329 (2d Cir.
2011), cast some doubt on the viability of
Pinaud, it was specifically cited recently by
the Second Circuit which also quoted the same language.
Birch v. City of New York,
675 Fed. Appx. 43, 45 (2d Cir. 2017).
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against 	the 	City 	of 	Woonsocket 	occurred 	during 	the 	investigation 	and 	direct
prosecution, leading up to the 1995 conviction
The City of Woonsocket, by and through its final policymakers,
during
the time of Mr. Tempest’s wrongful arrest and conviction, and for years
beforehand, failed to properly train, supervise, discipline, transfer,
monitor, counsel, and/or otherwise control police officers in connection
with the fundamental investigative tasks implicating the constitutional
rights of witnesses and suspects, including but not limited to conducting
custodial interrogations and witness interviews, and documenting and
disclosing exculpatory and impeachment evidence.
(ECF No. 1, ¶ 300) (emphasis supplied). 	Mr. Tempest certainly learned of the
prosecutorial misconduct itself during the litigation of his post-conviction relief
application. Under
Ouellette, however, he had to have either known of, or had reason
to inquire about, whether the City of Woonsocket through its official policy or
practices facilitated, encouraged or otherwise “condon[ed] the alleged constitutional
violation.”
	Ouellette, 977 F.3d at 140. 	The employment relationship between
culpable police officers and their municipal employer is, by itself, not sufficient to put
a wronged plaintiff on notice of the causal link between the injury and the conduct of
the municipality.
In
Ouellette, the record concerning the plaintiff’s knowledge was sufficient to
establish a factual issue for a jury concerning the time when the plaintiff’s knowledge
would have caused the right of action against the City to accrue. In the instant case,
there are no factual allegations in the Complaint that would allow the Court, at this
juncture, 	to 	determine 	when 	the 	plaintiff 	gained 	sufficient 	knowledge 	of 	the
municipal policies he alleges, or even knowledge that would give rise to a duty to
inquire. 	Discovery may produce that information, and the plaintiff is entitled to the
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opportunity to engage in it to demonstrate that he filed this action within three years
of the accrual of the claim. The Motion to Dismiss Count V is DENIED.
F. Count VI: Abuse of Process – Count IX Respondeat Superior
The abuse of process claim is brought purely under state law. In Rhode Island,
the tort has two elements: 	that the defendant instituted proceedings against the
plaintiff and that the proceedings were used by the defendant for a perverted purpose
that they were not designed to accomplish.
	Fiorenzano v. Lima, 982 A.2d 585, 590
(R.I. 2009).
Abuse of process is a personal injury concept,
Pickering v. American Employers
Ins. Co., 282 A.2d 584, 588 (R.I. 1971), and the three-year statute of limitations of
R.I.G.L. § 9-1-14(b) therefore applies. 	Were Mr. Tempest alleging that the criminal
proceedings were tortious at their inception, manifested by his indictment in 1991,
the statute of limitations would have run long before he filed this action in 2020.
See
Phoenix v. Day One, No. 1:20-cv-152-MSM-PAS, 2021 WL 4193197, at *1 (where
allegation was that proceedings were instituted maliciously, abuse of process action
accrued when misdemeanors were charged). Rhode Island has not explicitly declared
when an abuse of process action accrues, but the Rhode Island Supreme Court has
said it “arises when a legal proceeding, although set in motion in proper form,
becomes perverted to accomplish an ulterior or a wrongful purpose for which it was
not designed.”
Hillside Assoc. v. Stravato, 642 A.2d 664, 667 (R.I. 1994).
The language from
Hillside makes clear that an abuse of process claim can,
and might well, accrue at some point
after the proceedings had been initiated – i.e.,
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at some point during the prosecution. 	In this way it differs from malicious
prosecution which focuses on the motivation of the proceedings at their inception and
alleges that the very commencement of the prosecution was tortious. 	As one state
court aptly put it, “the distinction between malicious prosecution and abuse of process
is that malicious prosecution requires a claim to be improperly instituted, whereas
abuse of process requires a wrongful or improper act after the institution of process.”
Fox v. City of Greensboro, 866 S.E.2d 270, 290 (N.C. App. 2021).
Mr. Tempest, in his Objection to the Motion to Dismiss, does not identify a date
when he maintains the abuse of process action accrued. Instead, he argues that “in
fairness,” he should not have been required to pursue it until the criminal charge was
finally disposed by his
Alford plea on December 18, 2017. 	If that were true, his
Complaint, filed on December 17, 2020, would be timely. (ECF No. 17, p. 23.) But he
offers no legal support at all for what would be a blanket “equity” exception to the
statute of limitations, much less support in Rhode Island law.21 	The Court, on its
own, cannot begin to pinpoint when in the course of these events an inference of
improper purpose could be drawn: 	When the prosecution began? 	When the
prosecution twisted and manipulated the evidence by use of suspect testimony and
concealment of exculpatory material to unfairly gain advantage resulting in a
conviction? 	When the state refused to
nol pros the indictment after Mr. Tempest’s
post-conviction relief application was granted in the Superior Court or after the
21 Rhode Island law does recognize “equitable tolling” of a statute of limitations in
very narrow circumstances.
Rivers v. American Com. Ins. Co., 836 A.2d 200, 204 (R.I.
2003).
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successful appeal? 	If any of these events, all occurring before December 17, 2017,
provided a basis to claim a perversion of the prosecution, Mr. Tempest’s abuse of
process claim would be time-barred.
	See Watson v. Mita, C.A. No. 16-40133-RSH,
2017 WL 4365986, at *4 (D. Mass. Sept. 29, 2017) (abuse of process accrued “at such
time as the criminal process is set in motion against the plaintiff, or when the plaintiff
was aware that ‘such process was employed for an inappropriate collateral objective’”
(quoting
Duamutef v. Morris, 956 F. Supp. 1112, 1118 (S.D.N.Y. 1997));
Wilson v.
Town of Fairhaven, No. 18-110990PBS, 2019 WKL 1757780, at *8 (D. Mass. March
4, 2019), R&R adopted 2019 WL 1760591 (D. Mass. March 19, 2019).
On the other hand, Mr. Tempest alleges that up to the actual
Alford plea itself,
the state was 	maintaining that if 	he were convicted a second time it would
recommend an eighty-five-year sentence
and object to his being paroled for the rest
of his natural life. In addition, he alleges that the state intended to use, at this second
trial, evidence that was tainted by its misconduct in the investigation22 and he
suggested that the state’s misconduct “may be ongoing.”23 (ECF No. 1, ¶ 248, 249.)
The threat alone, if made, would presumably have been for the purpose of persuading
Mr. Tempest to enter a plea to the charge and not insist on standing trial again. Mr.
22
See ¶¶ 249-250 of Complaint (ECF No. 1). Mr. Tempest brought pretrial motions
to exclude the evidence that was related to prosecutorial misconduct from his second
trial. Presumably the state objected, as two of the motions were denied. Decision on
the Motion to exclude testimony about the maroon car was deferred.
Id.
23 In ¶ 248 of his Complaint, Mr. Tempest alleges discovery in 2017 of information
from 	the 	state 	that 	may 	have 	indicated 	testimony 	in 	a 	2014 	deposition 	was
manipulated. (ECF No. 1.)
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Tempest has not specifically alleged that the state was motivated by a desire to avoid
paying civil damages for what both the state Superior and Supreme Courts had found
by that time were constitutional violations, but it is conceivable that the inference
could be drawn if an evidentiary basis for it were developed during discovery.24 	If
Mr. Tempest only became aware of such an improper motive then, the cause of action
would have accrued at that time.
	Ying Li v. City of New York, 246 F. Supp. 3d 578,
616 (E.D.N.Y. 2017) (claim for abuse of process did not accrue until plaintiff became
aware that police had a collateral motive of inducing her husband to plead guilty).
“[A]ccrual cannot be appropriate before such time as plaintiff is aware, or ought to be
aware, of those facts providing a basis for his claim.”
	Duamutef v. Morris, 956 F.
Supp. 1112, 1118 (S.D.N.Y. 1977) (Sotomayor, J.).
In his complaint, Mr. Tempest included only the following in the Count alleging
abuse of process: “Defendants initiated proceedings against Mr. Tempest and used
these proceedings for a wrongful purpose that the proceedings were not designed to
accomplish: 	the wrongful arrest, prosecution, and conviction of Mr. Tempest, an
innocent man.” 	(ECF No. 1 ¶ 304.) 	The act or acts constituting abuse of process,
24 Citing treatises, a Missouri appellate court has reasoned that the statute of
limitations on an abuse of process claim “begins to run[,] from the termination of the
acts which constitute the abuse complained of, and not from the completion of the
action in which the process issued.”
Corley v. Jacobs, 820 S.W.2d 668, 672 (Mo. App.
1991) (citing 1 ALR3d, Abuse of Process-Limitations statute, pp. 953-54 (1965) and
72 C.J.S. Process, § 112 (1987).
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then, are implied to be the prosecution leading up to the first conviction.25 	By
definition, then, the acts would have occurred prior to January 11, 1995, the date his
first conviction was affirmed on appeal and reduced to final judgment. 	By that
measure, the statute of limitations has run.
If the threat to again seek an eighty-five-year sentence or oppose parole forever
formed a part of the abuse of process alleged, the Court might well decide at this early
stage, without a fuller development of the record, that it cannot say that the statute
of limitations has expired on the abuse of process claim. 	But Mr. Tempest has not
alleged in his Complaint any conduct by the two individuals he sued that influenced
the state’s determination to retry him. 	Nor, when he refers to the state’s threat to
object to his parole for the rest of his life were he to turn down the plea option, are
there 	any 	facts 	alleged 	that 	would 	give 	rise 	to 	an 	inference 	of 	Woonsocket
participation in that decision. 	The complaint speaks of “the state” and names only
the state prosecutor.26 (ECF No. 1, ¶¶ 255-257.) 	Thus, even if the abuse of process
claim can withstand a statute of limitations defense because it relates to a perversion
of the prosecution occurring in 2017, Mr. Tempest has not pleaded any liability on
the part of the defendants he has actually sued for that distortion of the judicial
process. 	Therefore, the defendants’ Motion to Dismiss Count VI is GRANTED, but
25 “[Wrongful] conviction” can only refer to the first, vacated conviction since the
second 	conviction 	was 	the 	product 	of 	a 	voluntary 	plea 	and 	not, 	presumably,
considered “wrongful” by the plaintiff.
26
See, Suitor v. Nugent, 199 A.2d 722, 724-25 (R.I. 1964) (Attorney General, in
enforcing criminal law, performs a quasi-judicial function entitling him to immunity
from suit for malicious use of process).
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the plaintiff is permitted thirty (30) days in which to amend his complaint to reflect
a cause of action against persons sued that comes within the embrace of the three-
year statute of limitations. 	That portion of Count IX which alleges respondeat
superior liability on the part of Woonsocket for abuse of process committed by its
employees must follow the same course.
G. Count VIII: Intentional or Reckless Infliction of Emotional Harm
As is the case with Mr. Tempest’s abuse of process claim, a three-year statute
of limitations, accorded by state law, applies to the intentional or reckless infliction
of emotional distress.
	See Pirri, v. Toledo Scale Corp., 619 A.2d 429, 431 (R.I. 1993)
(limitations period of three years pursuant to R.I.G.L. § 9-1-14 applies to all “injuries
to the person”). 	Under Rhode Island law, a cause of action for infliction of emotional
distress accrues when the physical symptomatology required to maintain that cause
of action manifests.
Hill v. Rhode Island State Employees’ Retirement Bd., 935 A.2d
608, 617 (R.I. 2007) (complaint alleged “physical hardships,” including acid reflux,
occurring as early as his indictment). Physical symptomatology is required for both
intentional
and reckless infliction of emotional distress,
Reilly v. United States, 547
A.2d 894, 899 (R.I. 1988), and it is only logical that where the statute of limitations
is the same for each the point of accrual would be the same. 	In his complaint, Mr.
Tempest alleges no physical symptomatology.27 	In any event, the injury – the
distress, assuming it was recoverable – must have occurred no later than the first
27 The defendants have not moved for dismissal on this basis.
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conviction.28 	The Rhode Island Supreme Court has rejected applying a rule of
reasonable discovery to this cause of action,
Hill, 935 A.2d at 617, but even if it did
apply, the plaintiff clearly knew of the cause of the distress (the defendants’
malfeasance) by the time he filed his application for post-conviction relief. Whatever
the event that began the running of the limitations period on an emotional distress
claim, it happened more than three years before the filing of this action. Therefore,
Count VIII must be DISMISSED.
H. 	Count IX - Respondeat Superior Liability
A municipality, in this case the City of Woonsocket, is liable for the intentional
tortious conduct of its employees if the misconduct falls within the scope of the
employment.
Cruz v. Town of North Providence, 833 A.2d 1237, 1240 (R.I. 2003). Its
liability under this doctrine is purely vicarious: it is held responsible not for its own
conduct but for the employees’ conduct. 	While it may be debated whether the
misconduct at issue was carried on within the scope of law enforcement employment,
the simpler response at this point to this cause of action is that it must follow the
disposition of the torts alleged in Counts IV, VI, and VII.
28 Mr. Tempest’s complaint recites a list of adversities he suffered in connection with
his claim for damages. (ECF No. 1, ¶¶ 271 – 274.) He suffered “the loss of his freedom
for more than twenty-three years, pain and suffering, mental anguish, emotional
distress, indignities, degradation, and restrictions on all forms of personal freedom,
…” 	In addition, he was “deprived of his familial relationships,” and “sustained
economic 	injuries 	and 	damages, 	including 	loss 	of 	income 	and 	loss 	of 	career
opportunities.”
	Id. 	All these injuries occurred, at the latest, at the time of the first
conviction and incarceration.
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IV. 	CONCLUSION
“The primary responsibility of a prosecutor is to seek justice, which can only
be 	achieved 	by 	the 	representation 	and 	presentation 	of 	the 	truth.”
	National
Prosecution Standards (3rd ed.), promulgated by the National District Attorneys
Association, Standard 1-1.1. 	https://ndaa.org/wp-content/uploads/NDAA-NPS-3rd-
Ed.-w-Revised-Commentary.pdf. The ultimate responsibility for the integrity of the
evidence presented belongs to the prosecution.
Id. at Std. 3-1.3.
In this case, members of the Woonsocket Police Department laid a track
heavily infested with lies; the state prosecution not only provided the rails but led the
jury down it to obtain a conviction that was so suspect and so much a result of
misconduct that it was vacated by the state courts. 	That relief, however, gives
meaning to the phrase “too little, too late.” While Judge Procaccini’s decision released
Mr. Tempest from confinement, it could not compensate for what he had lost: 29
During 	the 	almost 	24 	years 	he 	spent 	in 	prison, 	Mr. 	Tempest’s
daughters―who were minors in his full custody at the time of his 1992
trial―grew 	up 	and 	had 	families 	of 	their 	own. 	While 	wrongfully
incarcerated, Mr. Tempest missed out on events and memories that
could never be recreated: walking his daughters down the aisle at their
weddings; being present for the births of his beloved grandchildren; and
celebrating holidays and birthdays with his family and friends.
29 In this case, Mr. Tempest was sentenced to time served following the
Alford plea,
so the imprisonment that was imposed on him was, strictly speaking, a consequence
of the plea. Whether he could recover for injuries caused by that imprisonment, even
if there were no other bars to recovery, might be doubtful, but he could recover for
injuries that resulted from the first trial and conviction.
Olsen, 189 F.3d at 69-70.
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(ECF No. 1, ¶ 262.) 	Unfortunately, this Court can neither compensate him for, nor
permit him to go forward with, most of his claims in his attempt to hold those
responsible civilly accountable.
The Motion to Dismiss (ECF No. 12) is GRANTED as to all Counts except
Count V, with the proviso that the plaintiff has thirty (30) days in which to amend
his claim for abuse of process so that it does not fail because of an expired statute of
limitations.
IT IS SO ORDERED:
______________________________________
Mary S. McElroy,
United States District Judge
July 19, 2022
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