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Filler v. Hancock County

United States District Court, D. Maine

January 27, 2016

LADEK FILLER, Plaintiff,
HANCOCK COUNTY et al., Defendants.


JOHN A. WOODCOCK, Jr., District Judge.

This case involves the complicated saga of the state prosecution of Vladek Filler for the gross sexual assault and assault of his then wife Ligia Arugetta. What began as an indictment for five counts of gross sexual assault and two counts of assault ended, after two trials and two appeals to the Maine Supreme Judicial Court, with Mr. Filler being convicted of only one assault charge, a conviction he is now challenging in a post-conviction review proceeding. Unfortunately, the prosecution of Mr. Filler also resulted in the Maine Supreme Judicial Court's imposition of discipline against Assistant District Attorney Mary Kellett for a number of violations of the Maine Rules of Professional Conduct, the first disciplinary proceeding ever filed with the Maine Supreme Judicial Court by the Overseers of the Bar against a member of Maine's prosecutorial bar based on the prosecutor's representation of the State. In the wake of these extraordinary events, Mr. Filler filed a civil action against eighteen State Defendants, including Assistant District Attorney Kellett and her colleague Assistant District Attorney Paul Cavanaugh, who have filed a motion to dismiss the Amended Complaint. In this Order, with some exceptions, the Court denies the assistant district attorneys' motions to dismiss the Amended Complaint.


A. Procedural History

On January 9, 2015, Vladek Filler filed a civil complaint in Hancock County Superior Court for the state of Maine against Hancock County and fourteen other Defendants, alleging that he had been wrongfully arrested, prosecuted, and convicted by the Defendants and that he had suffered damages as a consequence. Notice of Removal Attach. 1 (ECF No. 1) ( Compl. ); State Court Docket Record Attach. 1 (ECF No. 6) ( Docket Record ). On January 9, 2015, Mr. Filler filed an amended complaint, expanding the number of Defendants to eighteen. Notice of Removal Attach. 2 (ECF No. 1) ( Am. Compl. ). On February 4, 2015, Defendants Paul Cavanaugh and Mary Kellett removed the case from state to federal court. Notice of Removal (ECF No. 1).

On March 16, 2015, Mary Kellett and Paul Cavanaugh separately filed motions to dismiss the amended complaint. Def. Mary Kellett's Mot. to Dismiss (ECF No. 14) ( Kellett's Mot. ); Def. Paul Cavanaugh's Mot. to Dismiss (ECF No. 15) ( Cavanaugh's Mot. ). On April 20, 2015, Mr. Filler separately filed oppositions to both motions. Pl.'s Opp'n to the Mot. to Dismss of Paul Cavanaugh (ECF No. 22) ( Pl.'s Cavanaugh Opp'n ); Pl.'s Opp'n to the Mot. to Dismiss of Mary Kellett (ECF No. 23) ( Pl.'s Kellett Opp'n ). On May 18, 2015, Ms. Kellett and Mr. Cavanaugh filed replies to Mr. Filler's responses. Def. Paul Cavanaugh's Reply Mem. in Support of Mot. to Dismiss (ECF No. 31) ( Cavanaugh's Reply ); Def. Kellett's Reply Br. in Support of Mot. to Dismiss (ECF No. 32) ( Kellett's Reply ).

B. The Amended Complaint[1]

The Amended Complaint consists of 103 pages and details the complex and tumultuous events leading up to the arrest, prosecution and conviction of Mr. Filler of three state crimes, including Class A Gross Sexual Assault and two misdemeanor charges of assault against his then wife, Ligia Arugetta Filler, the vacating of those convictions by the Maine Supreme Judicial Court, the retrial of Mr. Filler, and his subsequent conviction for one misdemeanor count of assault and the not guilty verdicts on the Gross Sexual Assault and the other misdemeanor assault charge. See Am. Compl. ¶¶ 2-3.

The Amended Complaint contains the following counts directed against Assistant District Attorneys (ADA) Kellett and Cavanaugh:

(1) Count One - 42 U.S.C. § 1983 - Denial of Rights to Due Process and a Fair Trial Under the Fifth, Sixth, and Fourteenth Amendments; Malicious Prosecution and Deprivation of Liberty Under the Fourth and Fourteenth Amendments Against ADA Kellett;
(2) Count Two - 42 U.S.C. § 1983 - Defamation; Malicious Prosecution and Deprivation of Liberty Under the Fourth and Fourteenth Amendments' Denial of Due Process Rights and a Fair Trial Under the Fifth, Sixth, and Fourteenth Amendments Against ADAs Kellett and Cavanaugh;
(3) Count Seven - Defamation - Against ADA Cavanaugh; and
(4) Count Eight - Negligent Infliction of Emotional Distress - Against ADA Cavanaugh.

Am. Compl. at 1-102.

1. An Overview

Vladek Filler and Ligia Arugetta were married in October 1995. Id. ¶ 43. Ms. Arguetta brought a fifteen year old daughter to the marriage and Mr. Filler and Ms. Arguetta subsequently had two sons. Id. ¶ 44. Unfortunately, by 2007 the marriage had deteriorated and Mr. Filler and Ms. Arugetta were in the process of separating and, as such, they were required to resolve the question of custody of their children. Id. ¶¶ 48-51. Mr. Filler alleges that in the spring of 2007, in order to gain physical custody of their children, Ms. Arguetta engaged the police and made numerous allegations of abuse, which resulted in the state of Maine Department of Health and Human Services (DHHS) taking temporary custody of the children and Mr. Filler's arrest. Id. ¶¶ 52-53. After a three-month investigation, on July 24, 2007, DHHS exonerated Mr. Filler and placed the couple's two sons in his custody. Id. ¶ 54.

On April 24, 2007, Ms. Arguetta alleged that she had been violently and brutally raped by her husband on April 6, 2007. Id. ¶ 204. On August 8, 2007, a Hancock County grand jury indicted Mr. Filler on five counts of Class A Gross Sexual Assault and two counts of Class D Assault.[2] Id. ¶ 55. ADA Kellett was responsible for making presentations to the grand jury and for prosecuting Mr. Filler once the grand jury indicted him. Id. A criminal trial was held from January 12 through 15, 2009 and the jury found Mr. Filler guilty of one count of gross sexual assault and two counts of misdemeanor assault. Id. ¶¶ 56-57. On March 2, 2009, the trial court granted a motion for new trial, based on ADA Kellet's prosecutorial misconduct. Id. ¶ 58. The state of Maine appealed the trial judge's order to the Maine Supreme Judicial Court; ADA Kellett represented the State during the appeal.[3] Id. ¶ 59.

While the State's appeal was pending, a final divorce hearing was held on November 16-18, 2009 and the Maine District Court found that Ms. Arguetta had abused the children, had knowingly made false accusations of child molestation, had publicly threatened to kill Mr. Filler and a Sheriff's deputy, had demonstrated her ability to lie and make up stories, and the District Court found that the Ms. Arguetta's allegations of spousal rape, the focal point of the criminal trial, did not meet the preponderance of the evidence standard. Id. ¶¶ 61-62. The District Court concluded that the children required protection from Ms. Arguetta and granted custody to Mr. Filler. Id. ¶ 63.

On September 9, 2010, the Maine Supreme Judicial Court affirmed the trial court's order requiring a new trial, citing improper evidentiary rulings and prosecutorial misconduct. Id. ¶ 65; see State v. Filler, 2010 ME 90, ¶¶ 8-9, 27, 3 A.3d 365. On October 6, 2010, ADA Kellett announced publicly through the Bangor Daily News that she intended to retry Mr. Filler. Id. ¶ 66.

The case was retried on May 24 through 27, 2011. Id. ¶ 68. This time ADA Paul Cavanaugh was the prosecutor. Id. On May 27, 2011, the jury acquitted Mr. Filler of the remaining count of gross sexual assault and of one of the two misdemeanor assault counts; it found Mr. Filler guilty of one misdemeanor assault count. Id. ¶ 68. This conviction was affirmed on appeal. Id. ¶ 69; see State v. Filler , No. Han-11-460, 2012 Me. Unpub. LEXIS 75 (Me. Supreme Ct. July 3, 2012). Subsequently, a Maine state court found sufficient cause to approve a post-conviction review for prosecutorial misconduct and inadequate representation. Id. ¶ 69. Mr. Filler's post-conviction review is still pending. Id. ¶ 74.

2. ADA Mary Kellett

In his response to the motion to dismiss, Mr. Filler clarified that:

[t]he three general categories or activities which support [his] claims are legal advice [ADA Kellett] rendered to police officers in derogation of [his] rights, falsification of evidence, and withholding of exculpatory evidence during the pre-indictment investigation phase in order to wrongfully, and without probable cause charge and convict [him] of sexual assault, and defamatory statements she made to the media for the purpose and effect of falsely informing and inflaming the passions of the populace of Hancock County.

Pl.'s Kellett Opp'n at 2-3. More specifically, he claims ADA Kellett's conduct in "three areas" violated his rights: (1) her advice to law enforcement, (2) her role in the preindictment investigation of Mr. Filler, and (3) her statements to the media. Id. Mr. Filler explains the legal bases for his claims:

First, by Kellett's actions [he] was denied his right to [a] fair trial as guaranteed by the [S]ixth [A]mendment without providing him with due process as required by the Fifth and Fourteenth Amendments to the U.S. Constitution. Second, Kellett's action constitutes a malicious prosecution and deprivation of Filler's liberty in violation of his Fourth Amendment without due process of law as guaranteed by the Fourteenth Amendment.

Id. at 3. The Court turns to the Amended Complaint's allegations supporting each theory of liability.

a. ADA Mary Kellett's Advice to Law Enforcement

In Count One of the Amended Complaint, Mr. Filler alleges that ADA Kellett "assumed the role of legal counsel to three law enforcement officers, Defendants Willey, Mycoff and Malloy, and advised them not to comply with lawful subpoenas which would have led to the production of exculpatory evidence and that she also asserted a legal privilege on behalf of a law enforcement officer (Off. Wilmot and the Ellsworth Police Department), again to prevent the production of exculpatory evidence." Pl.'s Kellett Opp'n at 9.

b. The April 11, 2007 Ellsworth Police Department Interview

The first claim of improper legal advice centers on an April 11, 2007 interview at the Ellsworth Police Department between Ellsworth Police Officer Chad Wilmot and Ms. Arguetta concerning Stephen Fay, the editor of the local newspaper. Am. Compl. ¶¶ 201-02. The Amended Complaint alleges that Ms. Arguetta told Officer Wilmot that she witnessed Mr. Fay push Mr. Filler, that she was afraid for her husband's safety, and that he should never be pushed because he was physically frail, had a bad back, and had trouble maintaining his balance. Id. ¶ 202. Mr. Filler maintains that the contents of the April 11, 2007 Ellsworth Police Department interview were exculpatory. Id. ¶ 205.

During his defense of Mr. Filler in the original trial, Attorney Daniel Pileggi sought to obtain the records of the April 11, 2007 Ellsworth Police Department interview from ADA Kellett through standard discovery procedures. Id. ¶¶ 206-08. On September 6, 2007, Attorney Pileggi made a written request to ADA Kellett for the contents of Officer Wilmot's April 11, 2007 interview and he renewed his request on October 5, 2007. Id. ¶¶ 206-07. ADA Kellett ignored the requests. Id. On October 12, 2007, Attorney Pileggi filed a motion for discovery, mentioning specifically the statement Ms. Arguetta gave the Ellsworth police on April 11, 2007. Id. ¶ 208.

On May 15, 2008, Attorney Pileggi served Officer Wilmot with a subpoena to appear in court on June 9, 2008 and to bring all his reports and witness statements of the April 11, 2007 Stephen Fay incident interview. Id. ¶ 210. Officer Wilmot spoke with Attorney Pileggi and agreed to voluntarily comply with the subpoena and bring the records to Attorney Pileggi's law office. Id. ¶ 211. Attorney Pileggi had discussed the subpoena with ADA Kellett and she offered no objection. Id. ¶ 212. However, on or after May 16, 2008, ADA Kellett instructed Officer Wilmot not to provide the subpoenaed records to Attorney Pileggi; Officer Wilmot complied with ADA Kellett's instructions. Id. ¶¶ 212-13.

On May 29, 2008, Attorney Pileggi wrote and faxed a complaint letter to ADA Kellett, citing prosecutorial misconduct, interference with a defense subpoena, a conflict of interest in ADA Kellett's legal advice to Officer Wilmot, and a violation of the Maine Rules of Professional Conduct. Id. ¶ 214. Justice William Anderson held a hearing on the discovery motion on June 3, 2008 and ordered ADA Kellett to provide Attorney Pileggi with all "reports concerning... # 3" including "any audio or videotapes that may exist." Id. ¶ 216. Number 3 read:

Ellsworth Police Department investigative reports: The reports include interviews with defendant and the alleged victim, and relating to an altercation between the defendant and a representative of a local newspaper. Upon information and belief, Ms. Filler made numerous statements bearing on Mr. Filler's physical limitations, and his lack of capacity to commit the acts for which he is charged in this action.

Id. ADA Kellett did not comply with the Superior Court Order of June 8, 2008. Id. ¶ 217. Attorney Pileggi testified before a Panel of the Grievance Commission of the Board of Bar Overseers for the state of Maine that ADA Kellett told him that there was only a brief Ellsworth Police Department report and there were no witness statements. Id. ¶ 218.

Months after the first criminal trial, Mr. Filler himself presented the Superior Court Order to the Ellsworth Police Department and received all witness statements and the police report directly from Ellsworth Police Chief DeLeo. Id. ¶ 222. At the disciplinary hearing before the Grievance Panel, ADA Kellett testified that she acted on behalf of Officer Wilmot by advising him about his response to the records request concerning the April 11, 2007 complaint. Id. ¶ 223. On December 5, 2012, the Grievance Panel found that ADA Kellett had violated seven of the Maine Rules of Professional Conduct, including her failure to produce the Stephen Fay incident interview witness statements. Id. ¶¶ 225-26.

c. The April 24, 2007 Washington County 911 Calls and Video/Audio Records

The second allegation of improper legal advice addresses a series of telephone calls from Ms. Arguetta to the 911 number at the Washington County Sheriff's Office, as well as a video and audiotape of Ms. Arguetta's later encounter with a Washington County Sheriff's Deputy, all on April 24, 2007.

The Amended Complaint alleges that Ms. Arguetta began calling the Washington County 911 number early on April 24, 2007, demanding that the police seize her ten-year-old son from her husband but primarily complaining about her missing cat. Id. ¶ 116. The Amended Complaint claims that Ms. Arguetta sounded delusional and psychotic one moment in one call and calm and calculating minutes later. Id. ¶ 117. The Amended Complaint states that Ms. Arguetta "immediately made clear her motives of winning the child custody dispute against her husband and his family, and repeatedly demanded Police immediately go back to [Mr. Filler's] house and remove their ten year old son by force." Id. ¶ 118. When the 911 dispatcher failed to comply with her demands, she called back with more accusations and claims against Mr. Filler "until she threatened to murder [Mr. Filler] and then claimed he sexually assaulted her." Id. ¶ 119. She went on to tell the dispatcher that she "believed the children were molested by [Mr. Filler] and that she was going to go kill [him] for what he did to the children if the Police [did not] immediately respond and take the ten year old child from [his] custody." Id. ¶ 120.

At that point, Ms. Arguetta attempted to convince her seventeen-year-old daughter to say that Mr. Filler had molested her. Id. ¶ 121. The daughter refused to do so and instead called 911 to inform the dispatcher that her mother was "crazy, " that her brother had chosen to live with his father, and that her mother was going to use criminal charges to try and get Mr. Filler convicted "of anything" so that her brother would have no choice but to live with her. Id. ¶ 122. The daughter also told the dispatcher that Ms. Arguetta had left their home on foot with their one-year-old in hand to go to Mr. Filler's house. Id. ¶ 123.

Deputy Travis Willey, Deputy Crabtree, and Lieutenant Denbow observed Ms. Arguetta running on the road barefoot "only in a bra" and pants with a child, screaming that she would cut her husband to pieces and kill Deputy Willey. Id. ¶ 124. Restrained in the cruiser, Ms. Arguetta was screaming and kicking the door, talking to herself in English and Spanish, chanting, laughing and crying. Id. ¶ 126. The full incident was captured on Deputy Willey's cruiser camera, both by video and audiotape. Id. ¶ 127. In addition, Deputy Willey used his portable pocket recorder as he entered and exited the cruiser where Ms. Arguetta was restrained. Id. ¶ 128.

During this encounter with law enforcement, Ms. Arguetta alleged that her husband had sexually molested her three children and might try to kill their tenyear-old son. Id. ¶ 129. Ms. Arugetta threatened to kill Deputy Willey and her husband. Id. ¶¶ 132-33. Deputy Willey also informed DHHS that Ms. Arguetta claimed she had left the marital home on April 21, 2007 because her husband had raped her seventeen-year-old daughter. Id. ¶ 135. Deputy Willey prepared a report of his encounter with Ms. Arguetta. Id. ¶ 232.

On May 29, 2007, Deputy Willey hand-delivered a copy of his report of the April 24, 2007 incident to ADA Kellett; his report was stamped "Received May 29, 2007." Id. ADA Kellett did not turn over the Willey report in the automatic discovery she provided to Attorney Pileggi in August 2007. Id. ¶ 233. Attorney Pileggi learned about the April 24, 2007 incident and renewed his requests on October 5, 2007. Id. ¶ 234. He then initiated a series of additional discovery requests seeking the Washington County Sheriff's Office records of the April 24, 2007 encounter. Id. On October 12, 2007, Attorney Pileggi filed a motion for discovery. Id. ¶ 235. On or about October 24, 2007, ADA Kellett provided only a brief five-page report with partial dispatch log of the incident, which was date stamped as having been in her office since May 29, 2007. Id. ¶ 237. Attorney Pileggi followed up with a request for photographs, videotape recordings, audio recordings, tapes and logs of the 911 calls referenced in Deputy Willey's report. Id. ¶ 238. ADA Kellett did not provide photographs, the requested video, audio or the 911 recordings. Id. ¶ 239.

On May 15, 2008, Attorney Pileggi subpoenaed documents from both the Gouldsboro Police Department and the Washington County Sheriff's Office relating to an incident "on or about April 24, 2007." Id. ¶ 240. ADA Kellett did not produce these documents. Id. ¶ 241. On May 16, 2008, Attorney Pileggi subpoenaed Washington County Deputy Sheriff Willey to produce "[a]ll reports, audio tape, video tape, radio log materials, photographs or other material relating to the Washington County Sheriff's Department's Interactions with Ligia Filler on or about April 24, 2007, including, but not limited to, emergency call records." Id. ¶ 242. On June 3, 2008, Justice Anderson of the Superior Court issued an order, requiring the State to provide all "reports concerning # 1" to Attorney Pileggi, "including any audio or videotapes that may exist." Id. ¶ 245. Item 1 read:

Washington County Sheriff's incident reports dated April 24, 2007. Deputy Sheriff Travis Willey and Lieutenant Denbow interviewed the alleged victim, Ligia Filler after intervening for a "crisis evaluation, " in which Ms. Filler chanted about "cutting up" the defendant while laughing and crying hysterically, swearing and kicking a door. It was reported that Ms. Filler made various statements about the facts giving rise to the charges in this matter.


On July 16, 2008, Attorney Pileggi wrote ADA Kellett reminding her that he was still awaiting copies of the audio and visual recordings as per Justice Anderson's order. Id. ¶ 246. Receiving no response, Attorney Pileggi wrote again on September 3, 2008, stating that he was going to be forced to seek a contempt finding or discovery sanctions. Id. ¶ 247. On September 3, 2008, ADA Kellett emailed Attorney Pileggi representing that the "video could not be copied" for production to the defense, that the video "doesn't really show anything, " that she would provide only a CD of the audio copied "from the video" tape, and if Attorney Pileggi still wanted to view the video, he should make his own arrangements and "go watch it." Id. ¶ 248. On September 15, 2008, ADA Kellett provided Attorney Pileggi with an edited noncontinuous audio recording of Deputy Willey's and Ms. Arguetta's interaction; the same day, Attorney Pileggi renewed his request for the full court-ordered videotape and he attempted to gain access to the video. Id. ¶ 249. In fact, the full continuous audio or videotapes contained exculpatory evidence. Id. ¶ 250. On December 18, 2008, Attorney Pileggi subpoenaed Deputy Willey to produce "[c]opies of all video recordings of Arguetta" but it was never provided. Id. ¶ 251.

After the first trial on March 29, 2009, Mr. Filler made a Freedom of Access Act (FOAA) request of the Washington County Sheriff's Office. Id. ¶ 252. Between May 7 and May 15, 2007, Mr. Filler spoke with Deputies Crabtree and Willey. Id. ¶ 257. On May 7, 2007, Deputy Willey told Mr. Filler that "the District attorney's office has everything we have... I don't have any video-right now." Id. ¶ 258. Deputy Willey informed Mr. Filler that "no one ordered him to provide the video to [Mr. Filler] and that his compliance with a subpoena would be "up to the district attorney's office." Id. Deputy Willey told Mr. Filler that "if [he] wanted to subpoena him or get any of his records it would have to be done through prosecutor Mary Kellett's office." Id. On May 14, 2009, the Washington County Sheriff's Office provided Mr. Filler with an audiotape copy of an "entire series of extremely important and exculpatory 911 phone calls made by Arugetta and her daughter Natasha on the morning of April 24, 2007." Id. ¶ 253.

On May 15, 2009, Mr. Filler "subpoenaed Deputy Willey and all his records, notes, and recordings concerning Arguetta for a hearing scheduled on June 15, 2009." Id. ¶ 261. On or about June 9, 2009, Deputy Willey spoke with ADA Kellett who advised him concerning Mr. Filler's subpoena and, after speaking with ADA Kellett, Deputy Willey telephoned Mr. Filler and informed him that he "would not comply with the subpoena, would not provide the records, would not even appear at the hearing that he was subpoenaed to, and for the first time Willey... reported that the court ordered April 24, 2007 video recording of Arguetta's statement [had] now been erased." Id. ¶¶ 262-63.

On December 5, 2012, the Grievance Panel found ADA Kellett had violated seven Bar rules and specifically found that the 911 recording from April 24, 2007 was a key piece of exculpatory evidence and "should have been produced pursuant to rules, a court order, case law and ethical obligations." Id. ¶ 256.

d. The April 24, 2007 Gouldsboro Police Records

On April 24, 2007, Ms. Arguetta communicated with the town of Gouldsboro, Maine's police department and told Gouldsboro Police Sergeant Charles Bagley that Mr. Filler had raped her seventeen-year-old daughter and that this was the reason Ms. Arguetta had left the marital home on April 21, 2007. Id. ¶¶ 272-74. Following Ms. Arguetta's report, Sergeant Charles Bagley was instructed to go to Mr. Filler's home and break into the residence, if necessary, to save Ms. Arguetta's daughter as a rape victim in Mr. Filler's physical custody. Id. ¶ 274. The interactions between the Gouldsboro Police Department and Ms. Arguetta were documented by police reports, including Ms. Arguetta's false report to the police that Mr. Filler had raped her daughter. Id. ¶ 272. The contents of these reports were potentially exculpatory. Id. ¶ 275. The Gouldsboro police department reports should have been provided as automatic discovery, in response to Attorney Pileggi's specific discovery requests, and after Attorney Pileggi subpoenaed them. Id. ¶ 278. However, they were not. Id.

On April 29, 2009, Mr. Filler spoke with Gouldsboro Police Sergeant James Malloy and Sergeant Malloy revealed to him that the Gouldsboro police records of the April 24, 2007 incident did exist and were available. Id. ¶ 272. During that conversation Sergeant Malloy agreed to provide Mr. Filler with these records, and following the conversation Mr. Filler subpoenaed Sergeant Malloy and the records to the June 15, 2009 civil hearing. Id. ¶ 276-77. When Sergeant Malloy appeared at the June 15, 2009 hearing, he informed Mr. Filler that ADA Kellett instructed him not to provide Mr. Filler with the Gouldsboro records unless ordered to do so by a court. Id. ¶¶ 279, 497. Sergeant Malloy showed Mr. Filler a sealed envelope containing the Gouldsboro police reports but said he would not provide it under ADA Kellett's orders. Id. ¶ 280.

During the disciplinary hearing before the Grievance Panel on October 23-24, 2012, ADA Kellett testified that Sergeant Malloy contacted her office seeking assistance in locating available reports for production to Mr. Filler. Id. ¶ 283. The Amended Complaint claims that ADA Kellett suppressed and refused to provide the Gouldsboro police reports to the defense. Id. ¶ 284.

e. ADA Kellett's Role in the Pre-indictment Investigation of Vladek Filler

Mr. Filler claims that:

The second category of activity alleged against Kellett for which she is not protected by absolute immunity are the pre-indictment investigatory acts, committed directly by her, which, in conspiracy with other police defendants served to withhold exculpatory information and falsify evidence in order to wrongfully arrest, and indict Filler for sexual assault despite the lack of probable cause in violation of his Fourth Amendment rights - acts which form the basis for Filler's malicious prosecution claim.

Pl.'s Kellett Opp'n at 12. Mr. Filler explains that ADA Kellett was acting in an investigatory capacity when she "participated in, or approved of the editing out of exculpatory information from the April 25, 2007 Arguetta interview." Id. at 13. Mr. Filler further asserts that ADA Kellett "chose to disregard the fact that Arguetta had falsely claimed that Filler had sexually molested his one year old and ten year old sons, as well as Arguetta's seventeen year old daughter in favor of prosecuting her clearly false claims of herself being gross sexually assaulted on five separated occasions and assault on another." Id.

The Amended Complaint alleges that on April 25, 2007, Gouldsboro Police Department Chief Wycoff and Detective Stephen McFarland gave a videotaped interview in which Ms. Arguetta's friend Linda Gleason, a nurse, was allowed to sit with her during the interview. Id. ¶ 148. After about one hour, Chief Wycoff briefly left the room and the video recorder was still recording as Ms. Arguetta admitted to her friend, Ms. Gleason, that "her report of sexual abuse against her husband was her way of fighting for the children.'" Id. ¶ 149. Nurse Gleason advised her to "cry stating that it wouldn't seem real' unless Arguetta cried during the interview." Id. ¶¶ 150-51. Ms. Arguetta told Nurse Gleason that she did not feel like crying, but Nurse Gleason "repeatedly urged her to cry." Id. ¶ 151. When Chief Wycoff returned to the interview room, Ms. Arguetta began crying hysterically. Id. ¶ 153.

When ADA Kellett provided Attorney Pileggi with initial discovery, it included a transcript of the Wycoff interview but omitted entirely the communications between Nurse Gleason and Ms. Arguetta. Id. ¶ 154. Subsequently, ADA Kellett provided two separate audio CDs which omitted the conversation between Nurse Gleason and Ms. Arguetta. Id. ¶ 155. Months later, Attorney Pileggi obtained the entire videotape from the Gouldsboro Police Department, which showed the missing conversation between Nurse Gleason and Ms. Arguetta. Id . ¶ 156.

In the Amended Complaint, Mr. Filler alleged that "[o]n or about April 25, 2007, and prior to indictment of Filler on August 8, 2007, Kellett engaged in or supported and approved of, the falsification of an April 25, 2007 videotape interview of Arguetta by Wycoff." Id. ¶ 495. The falsification of evidence claim appears to relate to the suppression of photographs taken by the police identifying the area where the sexual assault allegedly occurred and the presentation instead of staged photographs taken by Ms. Arguetta. On April 26, 2007, Detective McFarland and Chief Wycoff executed a search warrant of Mr. Filler's residence and specifically inspected the area where the sexual assault was alleged to have taken place. Id. ¶¶ 174-75. The Amended Complaint states that the "area where the bizarre and physically impossible sexual assault claim was alleged to have taken place was so small, 24" x 24", that one adult could barely fit standing in that area, let alone two people bent over as was alleged." Id. ¶ 176. During the search, an "official set of photographs" was taken of the bathroom. Id. ¶¶ 177-78.

The Amended Complaint states that on January 12, 2009, the first day of Mr. Filler's first trial, ADA Kellett "presented never released, illegally obtained, staged photographs of [Mr. Filler's] residence showing a different alleged crime scene than that in the indictments, and in discovery." Id. ¶ 312 (emphasis in original). The Amended Complaint alleges that these photographs "were completely different from the official photographs initially taken by police on April 26, 2007 using a search warrant." Id. ¶ 313. The admitted photographs showed a washing machine and dryer area, where ADA Kellett told the jury the sexual assault took place. Id. ¶¶ 315-16.

f. ADA Kellett's Statements to the Media

In Count Two, Mr. Filler alleges that ADA Kellett repeatedly released "information known to be false and/or defamatory to the media... and for the purpose of falsely informing, and inflaming the passions of the populace of Hancock County in order to maliciously prosecute and deprive Filler of his liberty, and ultimately to deny Filler a fair trial." Pl.'s Kellett Opp'n at 15.

Specifically, the Amended Complaint states that on April 27, 2007, ADA Kellett "provided to the press a copy of an alleged Affidavit in Support of Arrest Warrant' by Chief Wycoff for the arrest of [Mr.] Filler." Am Compl. ¶ 542. The Amended Complaint alleges that the affidavit contained "false information including that Filler had forced non-consensual anal sex with his wife on April 6, 2007, and that Arguetta kept a diary of Filler's assaultive behavior." Id. ¶ 544. In fact, no arrest warrant had ever been signed. Id. ¶ 548. In addition, ADA Kellett released to the press Mr. Filler's "mug shot, " which shortly thereafter appeared in a front page story in the Bangor Daily News. Id. ¶ 545. The rape allegations were subsequently broadcast on local television and written up in the local and regional newspapers. Id. ¶ 546. Moreover, in September 2008, ADA Kellett falsely informed guardian ad litem John Lorenz that she was in possession of a journal which detailed Mr. Filler's abuse of Ms. Arguetta. Id. ¶ 549. ADA Kellett's statement to Mr. Lorenz was false and she knew it was false when she made it. Id. Finally, on January 16, 2009, the Bangor Daily News quoted ADA Kellett as stating that Mr. Filler had engaged in "... sexual punishment [of his wife]... it was punitive and angry." Id. ¶ 550.

3. ADA Paul Cavanaugh

Paul Cavanaugh was employed as an Assistant District Attorney by Hancock County and the Hancock County District Attorney's Office. Id. ¶ 28. After the Maine Supreme Judicial Court issued its September 9, 2010 Order, affirming Justice Cuddy's order for a new trial, ADA Cavanaugh assumed responsibility for the re-trial of the case. Id. ¶ 362.

The Amended Complaint alleges that ADA Cavanaugh engaged in two discovery violations. First, it claims that he assured the new defense counsel, Stephen Smith, that all discovery had been provided, when in fact it had not. Id. Specifically, neither the April 24, 2007 exculpatory recordings from Washington County nor the Gouldsboro police records had been turned over. Id. Next, the Amended Complaint alleges that during the second trial, ADA Cavanaugh was allowed to present Ms. Arguetta with a photograph of a bruise that Chief Wycoff had taken and that she was allowed to speculate about where she got the bruise. Id. ¶ 364. Ms. Arguetta acknowledged at the second trial that she "didn't know what it was" when the bruise first appeared three days after the couple separated, but when she returned to the house with Chief Wycoff, "the chair was the only thing she could think of." Id. ¶ 365. During the second trial, Chief Wycoff and Gouldsboro Sergeant Harry Larrabee admitted that no one knew where Ms. Arguetta got the bruise and that it was Chief Wycoff who suggested that the chair may have caused it. Id. ¶ 366.

The Amended Complaint then turns to the defamation allegations against ADA Cavanaugh. It states that ADA Cavanaugh announced his candidacy for district attorney of Hancock and Washington Counties on January 17, 2014. Id. ¶ 367. It alleges that on February 19, 2014, ADA Cavanaugh gave a public campaign speech where he publicly stated:

Those two pieces of evidence that were so important and fundamental in the first trial were never used in the second trial-they did not have anything to do with the second trial.

Id. ¶ 368. In fact, the Amended Complaint alleges that the "Bar Judgment against Kellett specifically cited three pieces of exculpatory evidence that were not provided to [Mr. Filler]." Id. ¶ 369. During the speech, ADA Cavanaugh further blamed Mr. Filler:

Mr. Filler has now filed what we call a Post-Conviction Review, a PCR, where he's saying even that conviction should now be thrown out because his defense attorneys weren't competent. So one thing we can be clear of is that it was not Mr. Filler's fault; it was his wife's fault, and then it was the prosecution's fault, and now it's the defense attorney's fault that he had to do time for assaulting his wife.

Id. ¶ 370. The Amended Complaint states that ADA Cavanaugh "publicly attacked [Mr. Filler] and made false public statements about the facts and nature of the prosecutorial misconduct and even the pending issues of the Post-Conviction Review against his office." Id. ¶ 371. Additionally, Mr. Filler says that ADA Cavanaugh "grossly misrepresented the ongoing positive relationship [Mr. Filler] has with all his attorneys." Id.

In Counts Two, Seven and Eight of the Amended Complaint, Mr. Filler only made claims against ADA Cavanaugh involving the February 19, 2014 speech. Id. ¶¶ 553-54. Specifically, the Amended Complaint alleges that ADA Cavanaugh said:

(1) that the "Board of Bar Overseers Order regarding ADA Kellett was about only two piece[s] of evidence"; (2) that "Mary Kellett had done nothing wrong"; (3) that Mr. Filler "got away with criminal conduct against his wife because there was an evidentiary mistake"; (4) that "the two pieces of evidence that were so important that ADA Kellett was sanctioned [for] were never used in the second trial"; and (5) that Mr. Filler "improperly blamed everyone [including Kellett] but himself." Id. ¶¶ 554, 659, 664.


A. The Kellett Motion to Dismiss

1. ADA Kellett's Position

In her motion to dismiss, ADA Kellett argues that Mr. Filler's Amended Complaint fails to state a claim upon which relief may be granted. Kellett's Mot. at 1-20.

a. The Statute of Limitations Defense

ADA Kellett first poses a statute of limitations defense to many of the claims in Count One of the Amended Complaint. Id. at 3. ADA Kellett observes that Maine's six-year statute of limitations applies to Mr. Filler's claims. Id. (citing 14 M.R.S. § 752). As Mr. Filler filed his Complaint in the Hancock County Superior Court on January 9, 2015, ADA Kellett effectively argues that her actions before January 9, 2009 are barred by the statute of limitations. Specifically, she says that ADA Kellett's legal advice to Officer Wilmot not to comply with Attorney Pileggi's May 15, 2008 subpoena must have occurred before January 9, 2009 because Mr. Filler alleges that Attorney Pileggi wrote to ADA Kellett on May 29, 2008 complaining about ADA Kellett's actions. Id. (citing Am. Compl. ¶ 218). Next she points to Attorney Pileggi's subpoenas to Chief Wycoff on May 15, 2008 and to Deputy Willey on May 16, 2008 and December 18, 2008; she says that Mr. Filler never asserts that ADA Kellett advised Chief Wycoff or Deputy Willey not to comply with those subpoenas, but if she had, the claims would be time-barred. Id. at 3-4.

b. Absolute Prosecutorial Immunity for Legal Advice

ADA Kellett concedes that her advice to Deputy Willey and Sergeant Malloy in the spring of 2009 not to comply with Attorney Pileggi's subpoenas would not be barred by the statute of limitations. However, she maintains that she "is absolutely immune from suit for any claim that she wrongfully withheld Brady [4] materials or otherwise violated Plaintiff's due process rights by virtue of failing to turn over exculpatory evidence." Id. at 5. Acknowledging that Mr. Filler might claim that ADA Kellett does not enjoy absolute immunity for legal advice to law enforcement officials during the investigatory phase of a criminal case, ADA Kellett argues that Burns v. Reed, 500 U.S. 478 (1991), the United States Supreme Court case that carved out the legal advice exception to absolute immunity, does not apply to ADA Kellett's actions. Id. at 7-8. In contrast with Burns, here by the spring of 2009, the prosecution against Mr. Filler was already pending and therefore ADA Kellett argues she did not render legal advice during the investigatory stage. Id. at 9. Even if the Burns exception to absolute immunity applied, ADA Kellett contends that there is a functional equivalence between her failing to turn over discoverable evidence and her advising another to do the same. Id . at 9-10.

c. Absolute Prosecutorial Immunity from Malicious Prosecution

Citing Imbler v. Pachtman, 424 U.S. 409 (1976), ADA Kellett contends that she is absolutely immune from the civil action of malicious prosecution in both Counts One and Two. Id. at 10-11, 17.

d. Statute of Limitations for Malicious Prosecution

Noting that Mr. Filler alleges he was arrested and charged on April 26, 2007 and indicted on August 8, 2007, ADA Kellett contends his malicious prosecution claim is barred by Maine's six-year statute of limitations. Id. at 11.

e. Prima Facie Case for Malicious Prosecution

ADA Kellett argues that because Mr. Filler was ultimately convicted of one count of assault, he may not maintain a civil action for malicious prosecution because he did not receive "a favorable termination of the proceedings" required under Maine law for the tort of malicious prosecution. Id. at 11-12.

f. Defamation Claim and the Statute of Limitations

Turning to Count Two of the Amended Complaint, ADA Kellett applies her earlier statute of limitations argument to the claims of defamation. Id. at 12-13. ADA Kellett observes that the Amended Complaint alleges that in September, 2008 ADA Kellett provided: (1) the press a copy of the "Affidavit in Support of Arrest Warrant, " (2) the press the April 27, 2007 mug shot, and (3) false information about Mr. Filler to the guardian ad litem; all having occurred more than six years before January 9, 2015. Id.

g. The Remaining Defamation Claim and § 1983 Liability

ADA Kellett acknowledges that one allegedly defamatory statement took place within the six year statute of limitations. Id. at 13. Although ADA Kellett does not identify the statement, the Court notes that the Amended Complaint charges that on January 16, 2009, the Bangor Daily News quoted ADA Kellett as stating that Mr. Filler had engaged in "... sexual punishment [of his wife]... it was punitive and angry." Am. Compl. ¶ 550. Even so, citing Paul v. Davis, 424 U.S. 963 (1976), ADA Kellett argues that Mr. Filler may not maintain a defamation claim under 42 U.S.C. § 1983 ...

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