United States District Court, D. Maine
DAVID J. WIDI, JR., Plaintiff,
PAUL MCNEIL, et al., Defendants.
ORDER ON MOTION FOR RECONSIDERATION AND MOTION PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60
JOHN A. WOODCOCK, JR UNITED STATES DISTRICT JUDGE.
David J. Widi, Jr. returns to this Court, urging it once again to reconsider its orders. In general, the Court refuses to change its earlier rulings. However, as Mr. Widi is challenging a screening order under 28 U.S.C. § 1915A and First Circuit law deems it preferable to allow a litigant whose claims may fail under § 1915A an opportunity to amend the complaint to cure any defects, the Court allows Mr. Widi thirty days to move to amend his Second Amended Complaint as to certain Counts. At the same time, because Mr. Widi seems to have shifted the facts to suit legal rulings, because the Court has previously determined that Mr. Widi’s factual claims against a government defendant were fanciful, and because Mr. Widi charges law enforcement officials with violations that could affect their reputations and professional and personal standing, the Court is requiring Mr. Widi to produce documentary evidence to support his newest set of allegations.
I. MOTION FOR RECONSIDERATION
A. The Bailey v. United States Argument
In his sixty-nine page Second Amended Complaint, Mr. Widi claimed in Count One that on the morning of November 28, 2008, a number of law enforcement officers unlawfully seized him at a local Irving Oil convenience store about 300 yards from his apartment, where they were executing a search warrant. Second Am. Compl. ¶¶ 56-65 (ECF No. 191) (Second Am. Compl.). On February 11, 2015, the Court issued a screening order pursuant to 28 U.S.C. § 1915A in which it held that Count One of the Second Amended Complaint must be dismissed because Michigan v. Summers, 452 U.S. 692, 705 (1981)-the controlling United States Supreme Court precedent in November 2008-allowed arrests of occupants incident to the execution of a search warrant. Screening Order, Order Vacating in part Earlier Order Denying Mot. for Leave to File Second Am. Compl. as to Served Defs., Order Granting in part Mot. to File Second Am. Compl., Order Striking Portions of the Second Am. Compl., and Order Denying Mot. to Stay (ECF No. 270) (Screening Order). Mr. Widi chafes at the Court’s dismissal and insists that under Bailey v. United States, 133 S.Ct. 1031 (2013) his arrest was unlawful.
The Court first explained its position on this issue on September 24, 2013, when it dismissed his claim against Special Agent Paul McNeil based on its conclusion that Agent McNeil was entitled to qualified immunity. Order Denying Pl.’s Mot. to Stay; Denying Pl.’s Mot. to Strike; and Granting Def. McNeil’s Mot. to Dismiss at 17-19 (ECF No. 170) (McNeil Order). The Court noted that to prevail in this claim, Mr. Widi had to demonstrate that the right he claims the law enforcement defendants violated was “clearly established” at the time of the alleged violation. Id. (quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)). The Court concluded that the arrest of Mr. Widi did not violate clearly established law as of 2008 and that Agent McNeil was entitled to qualified immunity. McNeil Order at 19. Since September 24, 2013, the Court has applied this rationale to the remaining officers that Mr. Widi has sued for his Irving Oil arrest. Screening Order at 31-32. Mr. Widi objects to the dismissals and now files a motion for reconsideration, arguing the Court erred. Mot. for Recons. at 1-4 (ECF No. 292) (Pl.’s Mot. for Recons.). In his motion, he contends that Michigan v. Summers was limited to the occupants of buildings to be searched and did not extend to persons stopped away from the searched building. Id.
In the Court’s view, Mr. Widi is simply wrong. Bailey itself demonstrates that the limitation on arrests pursuant to a search warrant was not clearly established in 2008. In Bailey, the police were preparing to execute a warrant to search a basement apartment for a handgun when they saw two men exit the gated area above the apartment and drive away. Bailey, 133 S.Ct. at 1036. The police followed them and stopped them about one mile away from the apartment. Id. The police did a patdown search of the men, and one of the men possessed keys that later turned out to fit the apartment. Id. The police handcuffed the men and drove them in a patrol car back to the apartment. Id. In Bailey, the Supreme Court concluded that the Summers detention rule was limited to the immediate vicinity of the premises to be searched. Id. at 1042-43.
The Bailey case came to the Supreme Court from the Second Circuit Court of Appeals. Bailey, 652 F.3d 197 (2d Cir. 2011). In its 2011 opinion, the Second Circuit ruled that the police stop and detention of the defendant about a mile from the searched residence was lawful under Summers. Id. at 206 (“[W]e have no trouble concluding that Bailey’s detention was lawful under the Fourth Amendment”). The Second Circuit noted that whether a detention of a person who had left the searched premises may be permitted under Summers had split the circuits, with three circuits concluding that such detentions were permissible and two concluding they were not. Id. at 204-06. In Bailey, the Second Circuit joined the majority in holding that such a detention was permissible under Summers. Finally, the Supreme Court was itself not unanimous. There were six justices in the majority, and three justices-Justices Breyer, Thomas, and Alito-dissented. Bailey, 133 S.Ct. at 1035-50.
This recitation demonstrates the error in Mr. Widi’s repeated argument. Mr. Widi would have the police officers who detained him in November 2008 be better judges of the scope of the Summers rule than three Justices of the United States Supreme Court and numerous judges of four courts of appeal. Based on the opinions of these distinguished jurists, the Court reiterates its conclusion that the right to be free from detention in Mr. Widi’s circumstances was not clearly established as of November 2008. Mr. Widi’s continued citation to Bailey and to cases that have followed Bailey do not change this Court’s view that before Bailey, the Bailey holding was not clearly established law, and that the police officers who detained him in November 2008 relying on Summers are entitled to qualified immunity.
B. Eliot Police Officer Elliot Moya
In Count Two of the Second Amended Complaint, Mr. Widi alleged that a number of police officers had applied his handcuffs too tightly and had failed to respond to his demands that the handcuffs be loosened. Second Am. Compl. ¶¶ 66-75. In its Screening Order, the Court let stand-despite substantial reservations- the claims against town of Eliot Police Officer Robert Brown and Lieutenant Kevin Cady. Screening Order at 32-36. However, reviewing Mr. Widi’s allegations against Officer Elliot Moya, the Court concluded that the allegations were insufficient to prevent dismissal. Id. at 35-36.
The sole allegations in the Second Amended Complaint against Officer Moya were:
Curran instructed Brown and Moya to transport Mr. Widi back to his residence at McNeil’s directive. Mr. Widi complained during the transport that the handcuffs were too tight. Moya said he’d have to take it up with the ATF. Brown and Moya had the ability to loosen the handcuffs and the keys to do so.
Second Am. Compl. ¶ 71. There is only one other mention of Officer Moya:
Brown’s use of handcuffs was unreasonable, excessive, and applied to cause harm to Mr. Widi. McNeil, Curran, Cady, and Moya had sufficient time and opportunity to intervene, yet they did not act to protect Mr. Widi from the excessive use of force and it was unreasonable for them to fail to prevent the excessive use of force. The defendants were deliberately indifferent to the harm being caused to Mr. Widi.
Id. ¶ 74. Based on a close reading of the allegations in the Second Amended Complaint against Officer Moya, which consisted of his presence in a police car for a brief interval as Mr. Widi was being brought from the gas station to his apartment, the Court concluded that the allegations were insufficient to support an excessive force claim. Screening Order at 35-36.
Mr. Widi returns and attempts to add allegations to his Second Amended Complaint not present in the Complaint itself, extending the time during which Officer Moya was present. Pl.’s Mot. for Recons. at 5-6. He now says that Officer Moya was present at the scene while Mr. Widi was handcuffed and that he drove Mr. Widi to the police station. Id. But these additional allegations appear nowhere in Mr. Widi’s sixty-nine page Second Amended Complaint. Second Am. Compl. at 1-69. The Court declines to consider them in this Order.
However, the First Circuit has written that “[o]rdinarily, 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 Fed.Appx. 4, 5 (1st Cir. 2013) (citing Chute v. Walker, 281 F.3d 314, 319 (1st Cir. 2002); Street v. Fair, 918 F.2d 269, 272-73 (1st Cir. 1990) (per curiam)). This Court is reluctant to prolong this unwieldy case any longer than necessary, but it is guided by the First Circuit. As with some of the other Counts, the Court will allow Mr. Widi to file a motion to amend the Second Amended Complaint setting forth more detailed allegations against Officer Moya. But, given his continually shifting allegations, the Court will require Mr. Widi to present more to the Court than his own say-so. To amend this Count against Officer Moya, Mr. Widi must present the Court with some documentation that is roughly contemporaneous with Officer Moya’s actions that substantiate his accusations or that demonstrate that someone other than Mr. Widi has provided a foundation for his allegations. Mr. Widi must file this motion to amend the Second Amended Complaint within thirty days of the date of this Order.
C. Special Agent Paul McNeil
On September 24, 2013, the Court addressed Special Agent Paul McNeil’s motion to dismiss or motion for summary judgment against the Amended Complaint in a thirty-six page order and granted his motion to dismiss. McNeil Order at 1-36. On November 18, 2013, Mr. Widi filed a Second Amended Complaint and made numerous specific allegations against Special Agent McNeil. Second Am. Compl. ¶¶ 7, 59, 61-62, 67-68, 71, 73-74, 86, 94-95, 101-02, 112-13, 115, 121, 123-24, 128, 132-33, 137-38, 142, 150, 154-55, 159. The Second Amended Complaint attempted to add certain allegations against Special Agent McNeil, most of which were contained in the earlier litigated pleading. See Second Am. Compl. Count III (Illegal Sniff Search), Count IV (Illegal Seizure of Tile Company Van), Count V (2nd Illegal Sniff Search). In its February 11, 2015 ruling, the Court declined to allow Mr. Widi to restate dismissed claims or assert new claims against Special Agent McNeil. Screening Order at 35 (citing McNeil Order).
In his motion for reconsideration, Mr. Widi asserts that the Court’s reasoning-that it would not allow a resurrected claim-is “not true as a matter of law.” Pl.’s Mot. for Recons. at 6. Citing Torres-Álamo v. Puerto Rico, 502 F.3d 20, 25 (1st Cir. 2007), Mr. Widi says that the First Circuit allows such amendments under Federal Rule of Civil Procedure 15(a). In Torres-Álamo, however, the First Circuit observed that there are legitimate reasons to deny a motion to amend including “undue delay, bad faith, futility, and the absence of due diligence on the movant’s part.” Id. (quoting Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). See also Home Orthopedics Corp. v. Rodriguez, 781 F.3d 521, 531 (1st Cir. ...