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Widi v. McNeil

United States District Court, D. Maine

February 11, 2015

DAVID J. WIDI, JR., Plaintiff,
v.
PAUL MCNEIL, et al., Defendants

DAVID J WIDI, JR, Plaintiff, Pro se, WAYMART, PA.

For SA STEPHEN E HICKEY, JR, SA CHRISTOPHER J DURKIN, SA DALE L ARMSTRONG, SA BRENT MCSWEYN, SA GLENN N ANDERSON, SA GRASSO, SA MORRIS, SA KIRK, OFFICE OF THE UNITED STATES ATTORNEY, BUREAU OF ALCOHOL TOBACCO FIREARMS AND EXPLOSIVES, EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS, OFFICE OF INFORMATION POLICY, UNITED STATES OF AMERICA EXECUTIVE OFFICE FOR U.S. ATTORNEYS, Defendants: JOHN G. OSBORN, U.S. ATTORNEY'S OFFICE, DISTRICT OF MAINE, PORTLAND, ME.

For SA KEVIN CURRAN, DETECTIVE KEVIN CURRAN, Defendants: EDWARD R. BENJAMIN, JR., DRUMMOND WOODSUM, PORTLAND, ME.

SCREENING ORDER, ORDER VACATING IN PART EARLIER ORDER DENYING MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT AS TO SERVED DEFENDANTS, ORDER GRANTING IN PART MOTION TO FILE SECOND AMENDED COMPLAINT, ORDER STRIKING PORTIONS OF THE SECOND AMENDED COMPLAINT, AND ORDER DENYING MOTION TO STAY

JOHN A. WOODCOCK, JR., UNITED STATES DISTRICT JUDGE.

David J. Widi, Jr. is a bright and tenacious pro se litigator, who has a knack for creating procedural tangles. This case is no exception. After reconsidering its prior denial, the Court grants Mr. Widi's motion for leave to file a second amended complaint. However, in performing a § 1915A screening, the Court concludes that only a few of the counts in the Second Amended Complaint survive and that the Second Amended Complaint states a viable claim against only two additional potential Defendants.

I. BACKGROUND

On December 10, 2014, the Court issued an order in this procedural morass, confirming that, pursuant to 28 U.S.C. § 1915A, the Court would screen the Defendants not screened by the Magistrate Judge's July 13, 2012 Order for Service After Screening Complaint Pursuant to 28 U.S.C. § 1915A. Order Dismissing Pl.'s Mot. for Relief Pursuant to Fed. Rule of Civil Procedure 54(b), Denying in Part and Granting in Part Pl.'s Mot. for Recons., Denying Req. for Status Conference and Granting Mot. to Extend Time at 6-8 (ECF No. 268) ( Dec. 10, 2014 Order ). In her July 13, 2012 Order, the Magistrate Judge had authorized the United States Marshal to serve Special Agent Paul McNeil, TD BankNorth, N.A. (TD Bank), Special Agent Kevin Curran, Maine Probation Agent Denis R. Clark, and Maine Probation Agent Michael Lyon. Order for Serv. After Screening Complaint Pursuant to 28 U.S.C. § 1915A at 1 (ECF No. 6) ( Screening Order ). But she deferred ruling on the more than thirty remaining Defendants. Id. at 1-2.

In addition, on November 18, 2013, without filing a motion to amend or consent, Mr. Widi filed a second amended complaint. Second Am. Compl . (ECF No. 191). On November 19, 2013, the Magistrate Judge struck the Second Amended Complaint because under Federal Rule of Civil Procedure 15(a)(2), Mr. Widi could amend his First Amended Complaint only by the parties' written consent or upon leave of the Court and he had failed to present either. Order at 1 (ECF No. 192). Mr. Widi objected to the striking of his Second Amended Complaint and on December 13, 2013, he filed a motion for reconsideration. Mot. for Recons . (ECF No. 197).

In the meantime, on November 29, 2013, Mr. Widi filed a motion to amend the First Amended Complaint. Mot. for Leave to Amend (ECF No. 198). On September 13, 2014, the Court dismissed Mr. Widi's motion for reconsideration and denied his motion to amend the Amended Complaint. Order Dismissing Pl.'s Mot. for Recons. and Denying Pl.'s Mot. to Amend Am. Compl . (ECF No. 255) ( Sept. 13, 2014 Order ). On October 20, 2014, Mr. Widi filed a motion to reconsider the September 13, 2014 Order. Mot. for Recons. of Order Denying Leave to File Second Am. Complaint and Req. for Status Conference (ECF No. 261) ( Second Mot. for Recons .). Finally, on December 10, 2014, the Court indicated that it would review the allegations in the First Amended and Second Amended Complaints and determine whether any differences between the two were legally significant. Dec. 10, 2014 Order at 8.

A. Screening Standards

While the federal in forma pauperis statute, 28 U.S.C. § 1915, is designed to ensure meaningful access to the federal courts for persons unable to pay the costs of bringing an action, Congress directed that a district court " shall dismiss . . . at any time" cases or claims proceeding in forma pauperis, if the court determines that the action " fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2)(B)(ii). " Dismissals on these grounds are often made sua sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience and expense of answering such complaints." Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989).

" Ordinarily, before dismissal for failure to state a claim is ordered, some form of notice and an opportunity to cure the deficiencies in the complaint must be afforded." Brown v. Rhode Island, 511 F.App'x 4, 5 (1st Cir. 2013). However, " no such safeguards need be provided if it is 'crystal clear that . . . amending the complaint would be futile, ' i.e., if the complaint is 'patently meritless and beyond all hope of redemption.'" Id. (quoting Gonzalez-- Gonzalez v. United States, 257 F.3d 31, 37 (1st Cir. 2001)).

B. The First Amended Complaint

In addition to Special Agent Paul McNeil of the Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF), Mr. Widi's First Amended Complaint included the following ATF special agents as defendants:

(1) Stephen E. Hickey, Jr.;
(2) Christopher J. Durkin;
(3) Dale L. Armstrong;
(4) Brent McSweyn;
(5) Glenn N. Anderson;
(6) Grasso;
(7) Morris; and
(8) Kirk.

In addition to Special Agent Kevin Curran, the First Amended Complaint listed the following Maine Drug Enforcement Agency (MDEA) special agents as defendants:

(9) Paul Shaw;
(10) Scott C. Rochefant;
(11) Scott Durst;
(12) Stephen Borst; and
(13) Steve Mazziotti.

The First Amended Complaint listed the following town of Eliot Police Department (EPD) law enforcement Defendants:

(14) Chief Theodore Strong; [1]
(15) Lieutenant Kevin Cady;
(16) Detective Kevin Curran; [2]
(17) Officer Robert Brown;
(18) Officer Elliott Moya;
(19) Officer Adam C. Martin; and
(20) Officer Matthew Raymond.

The First Amended Complaint listed the following Maine State Police (MSP) Defendants:

(21) Corporal Jerome Carr;
(22) Trooper Michael Cook; and
(23) John Doe 1.

The First Amended Complaint listed the following Portsmouth, New Hampshire Police Department (PPD) Defendants:

(24) Lieutenant Dante Puopolo; and
(25) Officer Andre S. Wassouf.

The First Amended Complaint listed the following Somersworth, New Hampshire Police Department (SPD) Defendants:

(26) Detective Thomas Phelan;
(27) John Doe 2; and
(28) John Doe 3.

The First Amended Complaint listed the following U.S. Marshal Defendants from the Concord, New Hampshire office:

(29) John Doe 4; and
(30) John Doe 5.

In addition to TD Bank, the ATF, the Executive Office for the United States Attorneys (EOUSA), and the Office of Information Policy (OIP), and Probation Officers Clark and Lyon, the First Amended Complaint listed the following additional Defendants:

(31) United States Attorney's Office, Portland, Maine;
(32) Town of Eliot, Maine;
(33) Douglas Lara, Bronx, New York;
(34) Neil Vaccaro, Portsmouth, New Hampshire; and
(35) Ryan Cortina, Somersworth, New Hampshire.

II. FURTHER BACKGROUND

A. Introduction

Mr. Widi's fourteen-count First Amended Complaint concerns the circumstances surrounding his arrest, detention, and prosecution in the fall of 2008. First Am. Compl . at 1-22 (ECF No. 15). The First Amended Complaint references numerous events in his federal prosecution, United States v. Widi, 2:09-cr-00009-GZS, and, to provide context, the Court reviews the history of that criminal case. The Court then describes the allegations in the First Amended Complaint and the proposed eighteen-count Second Amended Complaint. Finally, the Court compares the allegations in the First Amended Complaint with the allegations in the proposed Second Amended Complaint.

B. United States v. Widi [3]

On November 28, 2008, ATF agents applied for and obtained a search warrant allowing them to search the premises at 150A Harold Dow Highway, Eliot, Maine. Order on Mot. for to Suppress and Supplemental Mot. to Suppress at 1 (ECF No. 136) ( Suppression Order ); Mot. to Suppress Evid. at 1 (ECF No. 92) ( Mot. to Suppress ). The warrant authorized the police to search for drug-related evidence and firearms and explosives. Id. Before executing the search warrant, the agents maintained surveillance over the residence and observed a vehicle leave the premises and proceed to a local Irving station. Id. There, the agents stopped Mr. Widi, who was walking out of the Irving station, placed him in handcuffs, and Agent Paul McNeil explained to Mr. Widi that they were going to execute a search warrant on his house. Id. Mr. Widi said he would like to be present during the search. Suppression Order at 2. Accordingly, the agents transported him by cruiser to 150A Harold Dow Highway in Eliot as the search proceeded. Id. During the search, the agents found ammunition and a gun safe as well as a marijuana grow operation. Id. at 2-3.

Mr. Widi's " van was parked outside of the apartment in the driveway." Id. at 3. " A trained K-9 unit performed a sniff test on the exterior of the van but did not alert positively for controlled substances." Id. Agent McNeil arranged to have the van towed to an impound lot and, once there, a second drug-detection dog performed a second sniff test. Id. This time, the dog alerted positively on the van and, after a second search warrant was issued authorizing search of the van, the officers searched it and " found a small box of ammunition, a small baggie containing marijuana, and a few marijuana roaches." Id.

On November 28, 2008, Christopher J. Durkin, Special ATF Agent, swore out a criminal complaint against Mr. Widi. Criminal Compl . (ECF No. 1). The Complaint alleged that Mr. Widi had been convicted of Reckless Conduct on December 15, 2004 in the state of New Hampshire and that on about November 28, 2008, he possessed four firearms: (1) a Weatherby, Model Vanguard, .300 Magnum bolt-action rifle, (2) a Maaci Co., unknown model, 7.62 x 39 rifle, (3) an Israeli Weapons Industry, Model Desert Eagle, .50 pistol, and (4) a Davis Industries, Model D-32, .32 two-shot pistol, all in violation of the federal criminal law, 18 U.S.C. § 922(g)(1), that prohibits possession of firearms by felons. Id. at 1. The Government filed a motion for detention with the Complaint. Mot. for Detention (ECF No. 3). Mr. Widi was temporarily detained pursuant to that motion and after a hearing, he was ordered detained pending trial on December 11, 2008. Order of Detention Pending Trial (ECF No. 13).

A federal grand jury indicted Mr. Widi for the same crime on January 6, 2009, except the number of weapons was expanded to add (1) a Bushmaster, Model M17S, .223 semi-automatic rifle, (2) a Winchester, Model 94, 30-30 rifle, and (3) an Israel Military Industries, Model Uzi, 9mm pistol, and added a forfeiture allegation for the weapons. Indictment at 1-2 (ECF No. 14). The grand jury also indicted Mr. Widi for manufacturing marijuana, a violation of 21 U.S.C. § 841(a)(1). Id. at 2.

On December 8, 2009, Mr. Widi filed a motion to suppress evidence. Mot. to Suppress . The motion to suppress was based on the following claims: (1) that the affidavit that formed the basis for the issuance of a search warrant to a premises located at 150A Harold Dow Highway, Eliot, Maine, did not establish probable cause for the search, (2) that the agents arrested Mr. Widi without probable cause, and (3) that the agents did not advise Mr. Widi of his Miranda [4] rights before they questioned him and elicited incriminating statements. Id. at 1-4. On February 2, 2010, Mr. Widi filed a supplementary motion, seeking to have the results of the van search suppressed. Supplemental Mot. to Suppress Evid. (ECF No. 117). A testimonial hearing on both the motion to suppress and the supplemental motion to suppress was held on February 22, 2010. Tr. of Proceedings (ECF No. 155) ( Suppression Tr .).

On February 23, 2010, the district court concluded that the affidavit supporting the search warrant of the apartment was sufficient, and even if not, the evidence need not be suppressed under the good faith exception in United States v. Leon, 468 U.S. 897, 922, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). Suppression Order at 4-6. The district court denied the motion to suppress the evidence found in the apartment as a result of the execution of the search warrant. Id. at 5-6.

The district court next addressed the admissibility of statements that Mr. Widi made to the police officers both before and after Miranda warnings were issued. The district court concluded that statements Mr. Widi made to the officers before they issued Miranda warnings were statements made while he was in custody and subjected to interrogation and the district judge suppressed those statements. Id. at 8. However, after marijuana and ammunition was found in Mr. Widi's apartment, " Agent McNeil notified [Mr. Widi] that he was under arrest and read him Miranda warnings." Id. The district court concluded that the statements Mr. Widi made to the police after being read his Miranda warnings were admissible. Id. at 10. Lastly, the district court concluded that the search of the van was impermissible and suppressed evidence obtained from the van search. Id. at 11-12.

On April 7, 2010, a grand jury issued a second superseding indictment, which contained the same charges but added (1) one hundred rounds of Winchester, 9mm Luger ammunition, (2) one round of Winchester Western, 32 caliber auto ammunition, (3) one round of Remington Peters, 32 caliber auto ammunition, and (4) six rounds of Speer, 50 caliber AE ammunition. Second Superseding Indictment (ECF No. 181). Beginning April 19, 2010, this case was presented to a federal jury and on April 20, 2010, the jury issued a verdict finding Mr. Widi guilty of both criminal charges. Verdict Form (ECF No. 205). On October 13, 2010, the district judge sentenced Mr. Widi to two concurrent terms of imprisonment: 108 months on Count One, the gun possession count, and 60 months on Count Two, the marijuana count. J . (ECF No. 258). Mr. Widi appealed his convictions and sentence to the First Circuit Court of Appeals and on July 6, 2012, the First Circuit affirmed the convictions and sentence, upholding the district court's ruling on the motion to suppress. United States v. Widi, 684 F.3d 216, 221-22, 226 (1st Cir. 2012).

C. The First Amended Complaint

1. Counts One and Two: False Arrest and False Imprisonment Against the ATF, MDEA, EPD and MSP Defendants

In Counts One and Two, Mr. Widi alleges that on the morning of November 28, 2008, " the ATF defendants, MDEA defendants, Eliot Police defendants, and the Maine State Police defendants gathered for a briefing prior to the execution of a search warrant on Mr. Widi's residence" and " hatched a plot to initiate a traffic stop and arrest Mr. Widi for driving without a license." First Am. Compl . at 4. He claims that, when he left the premises, these law enforcement officers arrested him at the Irving station when they knew they did not have probable cause to make an arrest. Id. at 4-5.

2. Count Three: Excessive Force Against Eliot Police Officer Robert Brown, Special Agents Kevin Curran and Paul McNeil, and Eliot Police Lieutenant Kevin Cady

In Count Three, Mr. Widi alleges that he told Eliot Police Officer Brown and Special Agent Curran that the handcuffs were on too tight and were hurting him. Id. at 5-6. He also claims that Special Agent McNeil and Lieutenant Cady " refused to loosen the handcuffs." Id. at 6. Mr. Widi says he was required to wear overtightened handcuffs for over an hour and he still suffers from wrist pain to this day. Id.

3. Count Four: Van Seizure Against ATF, MDEA, EPD, and MSP Defendants

Noting that the district judge concluded that the police seizure of the van was not authorized, Count Four alleges that the police unlawfully seized his van in violation of his Fourth, Fifth, and Fourteenth Amendment rights. Id. at 6-7.

4. Count Five: Omission of Probable Cause Factors Against ATF, MDEA, EPD, and MSP Defendants

In Count Five, Mr. Widi claims that when the drug-sniffing dog was first taken to his company van, it failed to alert on the van. Id. at 7. However, the affidavit for the search of the ...


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