#111, Drano Series
 
 
       
    John Smith's Second Section 1983 and Malicious Prosecution Complaint

    Please note the following:

    1. There is an exhibit to prove each fact in the Complaint.
    2. Each exhibit is attached to the Complaint. 
    3. There is no emotion and no name-calling in the Complaint. 
    4. The Complaint contains only PROVABLE, UNDISPUTABLE FACTS.
    5. There is a fact for each element of each cause of action (the claim in each count).
    6. The Complaint is a VERIFIED Complaint, 
    7. A VERIFIED Complaint acts as an affidavit, saving work at the other end.
    8. By including the exhibits with the Complaint, the facts in them are included in those assumed to be true by the court when the defendants come in with a Motion to Dismiss.
    9. Plan on having to oppose a Motion to Dismiss from each defendant named.
    10. If you do not include the exhibits with the Complaint, they will not "count" when you file your opposition.
    11. Note that the citations to case law and statutes are included in footnotes, not the body of the Complaint. A Complaint is for facts. Put the law in the footnotes if a legal issue is disputable. In this way, the law in the footnotes defuses a potential disagreement on the law. It also shows the court you are diligent and have researched the law ahead of time AND that the Complaint is not frivolous.
    12. As of the New Year, Smith received and opposed motions to dismiss by all defendants except Pocahontas. Perhaps Pocahontas has decided not to file one. Her motion to dismiss the first case against her was unsuccessful. It, too, was filed in federal court and is Drano Series #51: http://www.falseallegations.com/drano51-complaint-arrest-imprison-prosecution.htm
    13. Gouin has moved to assign this case to the same judge as the first and to consolidate this case with the first case. It would show a pattern by Pocahontas of bringing baseless criminal actions.
    14. This malicious prosecution action has been assigned to the judge hearing the first m-p action and consolidated with that action!!!  Hoorah!  1/20/04

    15.  

    UNITED STATES DISTRICT COURT
    EASTERN DISTRICT OF MASSACHUSETTS

                                                                                   CIVIL ACTION: 
    -----------------------------------------------------
    John Smith. 
                                                               Plaintiff 
    v.

    Pocahontas Smith., 
    in her professional and individual capacities, 
    John G. DiPiano, Esq., in his partnership, 
    professional, and individual capacities, 
    Mauser & Mauser, 
    Timothy M. Mauser, Esq., in his partnership,
    professional, and individual capacities
    Martha D. Mauser, Esq., in her partnership,
    professional, and individual capacities
    Susan James, in her official and individual 
    capacities, 
    City of Boston
                                                              Defendants 
    --------------------------------------------------------

      VERIFIED COMPLAINT
    JURY CLAIM AS TO ALL COUNTS

    INTRODUCTION

    John Smith ["Smith"], of Massachusetts hereby asserts the following claims against the defendants in the above-entitled action: 

    (1) violation of 42 U.S.C. §1983 retaliation for petitioning,
    (2) violation of 42 U.S.C. §1983 and 1985(3): conspiracy, 
    (3) violation of 42 U.S.C. §1983: refusing or neglecting to prevent, 
    (4) malicious prosecution, 
    (5) malicious abuse of process,
    (6) conspiracy,
    (7) intentional infliction of emotional distress.
    JURISDICTION

    1. Jurisdiction of this court arises under 28 U.S.C. §§ 1331, 1337, 1343(a) (civil rights and elective franchise), and 1367(a) (supplemental jurisdiction); 42 U.S.C. §§.1983 (civil action for deprivation of rights), 1985(3) (conspiracy to interfere with civil rights), 1986, and 1988 (proceedings in vindication of civil rights); and 18 U.S.C. §§ 1341, 1511; 1961 (and statutes cited therein) through 1967. 

    2. Jurisdiction of this court for the pendent claims is authorized by F.R.Civ.P. 18(a), and arises under the doctrine of pendent jurisdiction as set forth in United Mine Workers v. Gibbs, 383 U.S. 715 (1966). 

    PARTIES

    1. Plaintiff John Smith. ["Smith"], is a natural person residing at 00 Pleasant Street, Unit 2, Boston, Suffolk County, Massachusetts, United States of America; was a resident of Massachusetts during all relevant times of this action, and is the husband of Defendant Pocahontas Jones Smith, Esq.
    2. Defendant Pocahontas Jones Smith ["Pocahontas"], a/k/a Pocahontas Hope Jones, who is a natural person, a Prestige-Law-School-educated attorney, and member of the Massachusetts and Maine Bars, was residing at 00 Xxxxx Drive, Yyyyyyyyy, Yyyyyyyyy County, Maine 04xxx, United States of America, at all times relevant to this Complaint.
    3. Defendant John G. DiPiano ["DiPiano"], who is a natural person, an attorney and a member of the Massachusetts Bar, is a partner in fact or partner by estoppel and/or employed by the law firm known as Mauser & Mauser, 180 Canal Street, Suite 400, Boston, Massachusetts 02114-1804, and has been residing at 341 Main Street, Sturbridge, MA 01566, United States of America, at all times relevant to this Complaint. The phone number 508-347-6500, listed in DiPiano’s name and appearing on the Mauser & Mauser letterhead, serves both as a Mauser & Mauser satellite-office number and as DiPiano’s home number [Exhibit X].
    4. Defendant Mauser & Mauser is a lawfirm doing business as a partnership and located at 180 Canal Street, Suite 400, Boston, Massachusetts 02114-1804, United States of America, at all times relevant to this Complaint, and is liable for the acts of its partners and employees under the doctrine of respondeat superior or by .estoppel
    5. Defendant Timothy M. Mauser, who is a natural person, an attorney, and a partner of the lawfirm Mauser & Mauser, located at 180 Canal Street, Suite 400, Boston, Massachusetts 02114-1804, United States of America, has been residing at 8 East Street, Ipswich, MA 01938 (phone: 978-356-7732) at all times relevant to this Complaint; and is liable for the acts of his partners and employees under the doctrine of respondeat superior or by estoppel.
    6. Defendant Martha D. Mauser, who is a natural person, an attorney, and a partner of the lawfirm Mauser & Mauser, located at 180 Canal Street, Suite 400, Boston, Massachusetts 02114-1804, United States of America, has been residing at 8 East Street, Ipswich, MA 01938, at all times relevant to this Complaint; and is liable for the acts of her partners and employees under the doctrine of respondeat superior or by estoppel.
    7. Defendant Susan James ["James"], who is a natural person, was a resident of Boston, Suffolk County, Massachusetts, United States of America, and a duly-appointed police officer and detective in the Boston Police Department, with ID #8033, at all times relevant to this Complaint.
    8. Defendant City of Boston ["Boston"] is a Municipal Corporation, organized under the laws of the Commonwealth of Massachusetts. It is responsible for the policies, procedures, and practices implemented through its various agencies, agents, departments, and employees, and for injury occasioned thereby. It was also the public employer of Defendant James at all times relevant to this Complaint. 
    9. Defendant James is sued in her official and individual capacities. 
    10. At all times material to this Complaint, Defendant James acted toward plaintiff under color of the statutes, ordinances, customs, and usage of the Commonwealth of Massachusetts, City of Boston, and the Boston Police Department. 


    FACTS

    1. Defendant Pocahontas Smith sued for divorce on 13 December 1999. 

    2. On 5 January 2001, Pocahontas and her stepbrother called and summonsed the Boston Police Department to remove Smith from a condominium jointly owned by the Smiths and located at 00 Pleasant Street in Boston, MA. Subsequent to the police arriving at the condominium, Smith was arrested, imprisoned, strip-searched, and charged with four criminal acts as set forth in the margin [Exhibit A, Boston Municipal Court Docket # 0101-CR-xx].
         
        1 Smith was charged with (a) maliciously destroying property (the lock attached to Smith's's real property), (b) possessing burglarious tools (Smith's drill), (c) attempting to violate a 209A and (d) violating a 209A order. 

       
    3. On 26 April 2001, a judge sitting in the Suffolk Division of the Probate & Family Court gave Smith exclusive use and possession of the condominium at 00 Pleasant Street in Boston [Exhibit B (page 1 of 4)].
    4. On 30 April 2001, all four charges against Smith were dismissed [Exhibit C, docket sheet].
    5. On 1 May 2001, Smith took occupancy and possession of the Pleasant Street condominium.
    6. On 18 May 2001, Smith sued Pocahontas, her stepbrother, the two arresting police officers, the police commissioner, and the City of Boston. It is Docket # 01-CV-10890-RBC [Exhibit D, docket sheet].
    7. On 12 April 2002, Pocahontas obtained a no-contact restraining order, Docket # PORDC-PA-2001-00315, against Smith out of a state district court in Portland, Maine [Exhibit E, the Maine order].
    8. On 2 May 2002, Pocahontas filed a Consolidated Motion to Compel Real Estate Appraisals and to Quash Taking of Depositions in Suffolk Probate & Family Court [Paper 197], [Exhibit F, the motion].
    9. On 2 May 2002, a second judge sitting in the Suffolk Division of the Probate & Family Court (a) ordered Smith to make available the Pleasant Street condominium for inspec-tion by a real estate appraiser on 13 May 2002 and (b) gave Pocahontas permission to attend the appraisal if she so chose [Exhibit G, pages 1 and 2 of the Massachusetts order]. 
    10. Pocahontas and/or her counsel, Defendant DiPiano, never gave Smith or his counsel any notice that she intended to exercise her choice of attending the appraisal at Pleasant Street on 13 May 2002.
    11. On 13 May 2002, Smith was at the Pleasant Street condominium in compliance with the May 2d Massachusetts Probate & Family Court order, which commanded him to make the condominium available for inspection by Pocahontas’s appraiser.
    12. On 13 May 2002, Pocahontas and DiPiano appeared at the condominium and upon seeing Smith there at the doorway to effect access, Pocahontas walked up to DiPiano with the Maine restraining order in her hand [Exhibit E, Maine order].
    13. Both Pocahontas and DiPiano knew that there was no Massachusetts restraining order against Smith and both knew that the Maine restraining order had not been domesticated here in the Commonwealth [Exhibit H, Restraining Order History].\2/

    14.  
        2 Massachusetts G.L. c, 209A, §5A, sets forth the procedure to domesticate a foreign order.
    15. As lawyers, both Pocahontas and DiPiano are charged with knowing the law at all times.
    16. DiPiano, with Pocahontas at his side, cell-phoned the Boston Police Department and informed the call-taker (a) that Pocahontas had a restraining order against Smith and (b) that Smith was refusing to leave the condo [Exhibit I, 911 report, and Exhibit J, transcript of the 911 call by DiPiano]
    17. On 13 May 2002, Smith welcomed the appraisers, who entered the condominium and performed the inspection for the appraisal [Exhibit K (Appraiser Goulet’s trial testimony at pages 5420-21, 5563-65)].
    18. On 13 May 2002, the police arrived and subsequently Police Officer John Calisi filed an Incident Report [Exhibit L, incident report]
    19. According to the Incident Report, Pocahontas informed the police that she had an order allowing her to view the property, but did not inform the police that the same order commanded Smith to make the condo available [Exhibit G].
    20. On 13 May 2002, DiPiano reported to the Discovery Master Gerald L. Nissenbaum ["Nissenbaum"] that the appraisal in Boston did not go forward that morning of 13 May 2002 [Exhibit M, page 35 of Pocahontas’s deposition on 13 May 2002].
    21. According to Appraiser Richard Goulet, when he testified on 20 September 2002 as an expert appraiser in the couple’s divorce action, Pocahontas and DiPiano did not appear to want to enter the condominium on 13 May 2002 [Exhibit K].
    22. On 13 May 2002, Appraiser Richard Goulet and his associate, Daniel Pacheco, did, indeed, appraise the subject condominium in Boston [Exhibit N, first page of the appraisal]. 
    23. On 13 May 2002, upon completion of the appraisal inspection, Smith left the condominium in order to file in U.S. District Court a case in which he was suing DiPiano and Pocahontas (amongst others) for attempted fraud. That case was docketed # 02-CV-10873-JLT.
    24. Subsequent to the appraisal inspection, Pocahontas was in contact with Defendant Detective James of the Boston Police Department [Exhibit O (3 pages of James’ handwritten notes)].
    25. On 17 May 2002, Detective James filed an Application for Complaint, identifying Pocahontas as the Co-Complainant [Exhibit P, Application for Complaint and Exhibit Q, modified application]
    26. Pocahontas and DiPiano failed to tell Susan James that Smith was acting pursuant to an order of the Probate & Family Court.
    27. According to James’ Application for Complaint, Pocahontas and DiPiano failed to tell Susan James that neither of them gave notice to Smith or his counsel that Pocahontas would be present on 13 May 2002 for the appraisal at the condo [Exhibits P and Q]
    28. Having seen and heard DiPiano call the Boston Police Department, Smith contacted the police to learn whether any complaint or application for same issued as a result of Pocahontas and DiPiano’s contact with the police department on or around the 13 May 2002.
    29. Smith and his counsel learned that action was being taken on Pocahontas and DiPiano’s 911 call, and they met with Detective James at the Area A-1 police station.
    30. On 3 June 2002, DiPiano misrepresented to the court, "I never mentioned to Mr. Nissenbaum that the appraisal did not go forward" [Exhibit R, page 27 of transcript of the hearing on 3 June 2002)].
    31. Smith told Detective James (a) that a judge in the Suffolk Division of the Probate & Family Court ordered Smith to make available the condominium for inspection by a real estate appraiser on 13 May 2002. (b) that the Massachusetts court gave Pocahontas a choice to attend the appraisal if she so chose, (c).that Pocahontas gave him no notice that she would attend, (d) that Pocahontas’s purpose was to try to entrap Smith into having contact with her outside of the court, (e) that Pocahontas had levied false charges against him on 5 January 2001, and (f) that he brought suit in federal court against the BPD officers as well as Pocahontas and the other defendants.
    32. On 22 July 2002, with full knowledge and documentary and statutory evidence of the truth of Smith’s defenses, James brought the complaint forward at the Boston Municipal Court [Exhibit S, criminal complaint].
    33. Smith was arraigned on 30 September 2002 on the charge of violating a Maine restraining order by being at his condominium in Boston, Massachusetts, on 13 May 2002 [Exhibit T, docket sheet, Boston Municipal Court, Docket #0201-CR-003706].
    34. On 30 April 2003, almost a year after her criminal complaint, in order to domesticate the Maine restraining order, Pocahontas filed an Affidavit of Filing of Certified Copy of Foreign Protection Order in the Suffolk Division of the Massachusetts Probate & Family Court Department [Exhibit U].
    35. On 19 September 2003, after numerous court appearances and an interlocutory appeal, the charge of violating M.G.L. c. 209A was dismissed (Horgan, J.) [Exhibit T] on two grounds, primarily: that Pocahontas, the person named as Complainant on the Complaint,\3/ brought the case to gain a collateral advantage in the divorce, that even assuming arguendo that the Maine order was effective here in Massachusetts, the Maine order did not supercede the Massachusetts order that commanded Smith to make available the condominium for an appraisal inspection.
    36.  
      John DiPiano is named as the caller on the 911 report and Susan James is named as the Complainant on the application for the criminal complaint to issue.
    COUNT 1: VIOLATION OF 42 U.S.C. §1983: RETALIATION FOR PETITIONING

    1. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 45 above with the same force and effect as if herein set forth.
    2. At all times relevant herein, the conduct of all Defendants was subject to 42 U.S.C. §§1983, 1985, 1986, and 1988.
    3. Acting under the color of law, Defendants worked a denial of Smith's rights, privileges or immunities secured by the United States Constitution or by Federal law,\4/ to wit, by retaliating against him because he sued the City of Boston and two of its police officers for the false arrest and imprisonment, among other claims, an action still pending before this court , and by conspiring for the purpose of impeding and hindering the due course of justice, with intent to deny Smith equal protection of laws.
      1.  
        Soto v. Flores, 103 F.3d 1056, 1061 (1st Cir. 1997); McNamara v. Honeyman, 406 Mass. 43, 52 (1989). 
         
    4. As a result of the retaliation by the Defendants for Smith exerising his First Amendment right to petition, Smith has been deprived of his right to equal protection of the laws, and the due course of justice was impeded, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. §1983. 

    WHEREFORE, Plaintiff demands judgment for retaliation in violation of 42 U.S.C. 1983 against Smith for petitioning by all the Defendants jointly and severally, for actual, general, special, compensatory damages in the amount of $500,000 and further demands judgment against each of said Defendants jointly and severally, for punitive damages\5/ in the amount of $100,000, plus the costs of this action, including attorney's fees, and such other relief deemed to be just and equitable. 
    Punitive damages are recoverable in § 1983 suit where defendant's conduct is motivated by an evil motive or intent, or where it involves reck-less or callous indifference to plaintiff's federally protected rights). Smith v. Wade, 461 U.S. 30, 50-51 ((1983); Clark v. Taylor, 710 F.2d 4, 14 (1st Cir. 1983).  Miga v. Holyoke, 398 Mass. 343, 355 (1986).


    COUNT 2: VIOLATIONS OF 42 U.S.C. §§1983 AND 1985: CONSPIRACY

    1. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 49 above with the same force and effect as if herein set forth.
    2. As a result of their concerted unlawful and malicious conspiracy of all Defendants, Smith was deprived of his right to equal protection of the laws, and the due course of justice was impeded, in violation of the Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. §§ 1983 and 1985. 

    WHEREFORE, Plaintiff demands judgment for the conspiracy against all the Defendants jointly and severally, for actual, general, special, compensatory damages in the amount of $500,000 and further demands judgment against each of said Defendants, jointly and severally, for punitive damages in the amount of $100,000, plus the costs of this action, including attorney's fees, and such other relief deemed to be just and equitable. 
     

    COUNT 3: VIOLATIONS OF 42 U.S.C. §1983:
    REFUSING OR NEGLECTING TO PREVENT

    1. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 51 above with the same force and effect as if herein set forth.
    2. At all times relevant to this Complaint, Defendant James as a detective in the Boston Police Department was acting under the direction and control of the Boston Police Department and the Defendant City of Boston.
    3. Acting under color of law and pursuant to official policy or custom, the Boston Police Department and the City of Boston knowingly, recklessly, or with gross negligence failed to nstruct, supervise, control, and discipline on a continuing basis the Defendant detective in her duties to refrain from:

    4.  
        (a) unlawfully and maliciously harassing a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities, 

        (b) unlawfully and maliciously prosecuting a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities, 

        (c) conspiring to violate the rights, privileges, and immunities guaranteed to Plaintiff by the Constitution and laws of the United States and the laws of the Commonwealth of Massachusetts; and

        (d) otherwise depriving Plaintiff of his constitutional and statutory rights, privileges, and immunities.

    5. The Defendant City of Boston had knowledge, or should have had knowledge -- had it diligently exercised those duties to instruct, supervise, control, and discipline on a continuing basis -- that the wrongs conspired to be done, as heretofore alleged, were about to be committed. The Defendant City of Boston had power to prevent or aid in preventing the commission of said wrongs, could have done so by reasonable diligence, and knowingly, recklessly, or with gross negligence failed or refused to do so.
    6. The Defendant City of Boston directly or indirectly, under color of law, approved or ratified the unlawful, deliberate, malicious, reckless, and wanton conduct of Defendant Detective James heretofore described.
    7. As a direct and proximate cause of the negligent and intentional acts of Defendant City of Boston as set forth in paragraphs 52-56 above, Plaintiff suffered physical injury, loss of income, and severe mental anguish in connection with the deprivation of his constitutional and statutory rights guaranteed by the Fifth and Fourteenth Amendments of the Constitution of the United States and protected by 42 U.S.C. §1983.

    WHEREFORE, Plaintiff demands judgment against all the Defendant City of Boston for actual, general, special, compensatory damages in the amount of $500,000 and further demands judgment against said Defendant for punitive damages in the amount of $100,000, plus the costs of this action, including attorney's fees, and such other relief deemed to be just and equitable. 
     

    COUNT 4: MALICIOUS PROSECUTION

    1. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 57 above with the same force and effect as if herein set forth.
    2. Defendants instituted criminal process against the plaintiff with malice:
      1. Pocahontas and DiPiano played an active part in the initiation of the criminal proceedings; 
      2. Susan James played an active part in the initiation of the criminal proceedings; and signed the criminal complaint against Smith.
      3.  
    3. The charges were not based upon probable cause, that is, the state of the facts in the mind of the prosecutor would not lead a man of ordinary caution and prudence to believe, or entertain an honest or strong suspicion that Smith was guilty.\6/
      1.  
        Carroll v. Gillespie, 14 Mass.App.Ct. 12, 19 (1982), cites omitted.  Morreale v. DeZotell, 10 Mass.App.Ct. 281, 282 (1980); Nolan & Sartorio, 37 M.P.S., Torts, § 79, pg. 96 (2d ed. 1989 & 1993 Supp.).

    1. Defendant James had a duty to ascertain whether there was reasonable and probable cause for a prosecution.\7/ to wit, to learn whether Smith was ordered to be at Pleasant Street to make the property available and whether Pocahontas had given no notice to him or to his attorney that she would be there.\8/ The order for Smith to make the condo available for inspection was shown her by Smith, and Pocahontas could not and did not show that she gave notice to Smith that she would be at Pleasant Street for the appraisal inspection.
    2.  
        Carroll v. Gillespie, 14 Mass.App.Ct. 12, 18 (1982).

        8

          [I]nformation known to be [] sufficiently unreliable or incomplete to support a finding that it was unreasonable to rely upon it without addi-tional information.  See Griffin v. Dearborn, 210 Mass. 308, 313 (1911) (where defendant knew that his horse was taken by G's minor son, and did not know whether the son did so, as the son claimed, on order from G, (t)he defendant's immediate prosecution of the son without any precedent investigation" could be found to lack reasonable grounds); Smith v. Eliot Sav. Bank, 355 Mass. at 548, (where defendant bank failed to pursue information as to whereabouts of S, in whose name unauthorized withdrawals were made, and teller identified the plaintiff as forger seven months after brief withdrawal transaction, jury could have found that identification was "so suspect that a 'man of ordinary caution and prudence' would not have relied upon it," quoting from Bacon v. Towne, 4 Cush. at 239.) 

      Carroll v. Gillespie, 14 Mass.App.Ct. at 20-21.
         
    1. Defendant James breached her duty.
    2. Defendant James had a duty to ascertain the truth of the information she had been supplied and failed that duty.
    3. Pocahontas and DiPiano recklessly made categorical statements to Detective James and (nondefendant Officer Calisi) accusing the plaintiff of violating a court order by his presence at his home on Pleasant Street and those statements resulted in Smith being charged with a crime.\9/
      1.  
          9

          It is established in a related context that an individual's freedom of movement cannot be subject to the "'honest ... suspicion' of a shop-keeper ... (acting) on his own 'inarticulate hunches.'"  Coblyn v. Kennedy's, Inc., 359 Mass. at 325 (false arrest). 


        Carroll v. Gillespie, 14 Mass.App.Ct. at 24-25.

    4. Pocahontas and DiPiano instigated or participated in the prosecution by pressing police to apply for a complaint for an improper purpose.\10/
      1.  
        10  Conway v. Smerling, 37 Mass.App.Ct. 1, 3 (1994) ("Although distinct from the tort of abuse of process, see Bednarz v. Bednarz,[] 27 Mass.App.Ct. [668], 669, 673, there is in malicious prosecution the common ingredient of an improper purpose, i.e., using court proceedings primarily to gain a private advantage, because of hostility and ill will, and without belief by the accuser in the guilt of the accused.  Restatement (Second) of Torts § 668 comments c-g").

    5. The criminal proceeding terminated in favor of Smith when the court dismissed the charge after a hearing on his second Motion to Dismiss.\11/ 
           
          11 Correllas v. Viveiros, 410 Mass. 314, 318 (1991).  "A dismissal of a criminal complaint by the court . . . entered by a district attorney satisfies the requirement that the criminal prosecution has been terminated in favor of the plaintiff."  Sarvis v. Boston Safe Deposit and Trust Co., 1994 WL 879797 (Mass.Super. 1994), citing Wynne v. Rosen, 391 Mass. 797, 800 (1984).

    6. Defendants City of Boston, Mauser & Mauser, Timothy Mauser, and Martha Mauser are liable under the doctrine of respondeat superior or partnership by estoppel [Exhibits V, W and X, respectively the Mauser & Mauser bill, letter dated 9/19/03 from DiPiano to Smith’s counsel, and phone listing. See also Exhibit N for Mauser & Mauser’s involvement in case].

        WHEREFORE, Plaintiff Smith demands judgment against all Defendants for injunctive relief and actual, special, compensatory damages in an amount deemed at time of trial to be just, fair, and appropriate.
           

          COUNT 5: MALICIOUS ABUSE OF PROCESS

    7. Plaintiff repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 67 above with the same force and effect as if herein set forth.
    8. Defendants maliciously used a "legal process `to accomplish some ulterior purpose for which it was not designed or intended, or which was not the legitimate purpose of the particular process employed.'"\12/ 
        1.  
          12   Carroll v. Gillespie. 14 Mass.App.Ct. 12, 26 (1982), quoting Jones v. Brockton Pub. Mkts., Inc., 369 Mass. 387, 389 (1975), quoting from Quaranto v. Silverman, 345 Mass. [423,] 426 (1963).

    9. Pocahontas knew that the complaint initiated was groundless and made misrepresentations to Detective James and Officer Calisi to gain a collateral advantage in the divorce.\13/ 

        1.   13  A person may be liable for false imprisonment not only when the person's own acts directly impose a restraint upon the liberty of another but also when that person, by providing false information, causes such restraint to be imposed. Karjavainen v. Buswell, 289 Mass. 419, 427 (1935) (questioned on other grounds by Mezullo v. Maletz, 331 Mass. 233, 239-240 [1954]).  Restatement (Second) of Torts s 37 (1965) ("If an act is done with the intent to confine another, and such act is the legal cause of confinement to another, it is immaterial whether the act directly or indirectly causes the confinement"). 

    Sarvis v. Boston Safe Deposit and Trust Co., 47 Mass.App.Ct. 86, 97-98 (1999).
    1. DiPiano knew that the complaint initiated was groundless and made misrepresentations to the 911 intake person, Beya Masso, for revenge upon Smith for (a) complaining in the divorce case of DiPiano’s repeated prevarication, (b) complaining in the divorce case of DiPiano’s complicity in an attempted fraud of Smith and withholding specific material evidence, (c) moving in the divorce case for sanctions against DiPiano. 
    2. Defendant James knew or should have known that the complaint was groundless and she sought to use the process for an ulterior purpose, including, but not limited to, the purpose of retaliating for Smith suing the two other police officers and the department in the related case, arising out of the arrest on 5 January 2001.
    3. Defendant City of Boston knew or should have known that the complaint initiated was groundless (Smith’s counsel discussed the case with the City of Boston lawyer prior to the application being filed at the BMC).
    4. Defendant James used the legal process with the ulterior purpose, to wit, for personal financial benefit.
    5. Defendants City of Boston, Mauser & Mauser, Timothy Mauser, and Martha Mauser are liable under the doctrine of respondeat superior or partnership by estoppel [Exhibits V, W, X, and N].


    WHEREFORE, Plaintiff Smith demands judgment against all Defendants for injunctive relief and actual, special, compensatory damages, in an amount deemed at time of trial to be just, fair, and appropriate.

    COUNT 6: CONSPIRACY

    1. Smith repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 75 above with the same force and effect as if herein set forth.
    2. All the Defendants (a) had an object to be accomplished; (b)had an agreement on the object or course of action; (c) performed one or more unlawful overt acts; and (d) caused Smith damages that were a direct result of those acts. 
    3. In furtherance of their object, defendants did two or more overt acts against the plaintiff. Those unlawful overt acts include, but are not limited to, the following:
      1. Susan James and the City of Boston knew or should have known that Pocahontas had intentionally misrepresented facts about the use and occupancy of the condominium; 
      2. in concert with Pocahontas's and DiPiano’s representations and misrepresentations, Susan James prosecuted Smith on the grounds that (i) he violated a temporary restraining order issued in the State of Maine, although she knew or should have known (i) that Smith was ordered to make the condo available for the inspection on May 13th at 10 A.M. and (ii) that the Maine order had not been domesticated,
      3. the defendants agreed that the object or course of action was to charge and prosecute him maliciously with crimes.

      4.  
    1. Defendants City of Boston, Mauser & Mauser, Timothy Mauser, and Martha Mauser are liable under the doctrine of respondeat superior or partnership by estoppel [Exhibits V, W, X, and N]
    2. Plaintiff suffered harm and damages that are a direct result of those acts. 

    3.  
    WHEREFORE, Plaintiff demands judgment against all Defendants for injunctive relief and actual, special, compensatory and punitive damages, attorney's fees, costs, expenses, and interest in an amount deemed at time of trial to be just, fair, and appropriate.  


    COUNT 7: INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

    1. Smith repeats and realleges and incorporates by reference the allegations in paragraphs 1 through 80 above with the same force and effect as if herein set forth.
    2. Defendants intentionally and deliberately inflicted emotional distress on Smith by maliciously prosecuting Smith, or by abusing the lawful process by unlawful purpose, or by violating Smith's constitutional rights, or by conspiring against Smith. 
    3. Defendants knew or should have known that emotional distress was the likely result of their conduct.
    4. Defendants conduct was extreme and outrageous, beyond all possible bounds of decency and utterly intolerable in a civilized community.
    5. The actions of the Defendants were the cause of Smith's distress.
    6. Smith is a reasonable man.
    7. The emotional distress sustained by Smith was severe and of a nature that no reasonable man could be expected to endure.\14/
    8.  
        14 Agis v. Howard Johnson Co., 371 Mass. 140, 145 (1976).
         
    9. As a result of the Defendants' extreme and outrageous conduct, Plaintiff was, is, and with a high degree of likelihood, will continue to be emotionally distressed due to the intentional commission.\15/
    10.  
        15  "Extreme and outrageous conduct is not required if the emotional distress resulted from the commission of another tort.  American Velodur Metal, Inc. v. Schinabek. 20 Mass.App.Ct. 460, 470-471 (1985).
         
    11. Defendants City of Boston, Mauser & Mauser, Timothy Mauser, and Martha Mauser are liable under the doctrine of respondeat superior or partnership by estoppel [Exhibits V, W, X, and N].
    12. As a result of the Defendants' extreme and outrageous conduct, Smith has suffered and will continue to suffer mental pain and anguish, severe emotional trauma, embarrassment, and humiliation.

    WHEREFORE, Plaintiff demands judgment, including interest, jointly and severally against all Defendants in an amount deemed by this Court to be just and fair and in any other way in which the Court deems appropriate.

                                                                           Respectfully submitted,
                                                                          JOHN SMITH,.
                                                                          By his attorney,
     

                                                                          _____________________
    29 September 2003                                       Barbara C. Johnson, Esq.
                                                                          6 Appletree Lane
                                                                          Andover, MA 01810-4102
                                                                          978-474-0833
                                                                          BBO #549972
     
     

    PLAINTIFF'S VERIFICATION

    The undersigned, being duly sworn, deposes and says that I am the Plaintiff herein, and have read the foregoing pleading filed on my behalf, and the facts stated therein are true.

    29 September 2003                                    _________________________
                                                                       John Smith. 

    Subscribed and sworn to before me, this 29th day of September 2003. 

                                                                       _________________________
                                                                       Notary Public