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Widi v. McNeil

United States District Court, D. Maine

January 10, 2017

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

          ORDER ON MOTION FOR RECONSIDERATION

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         In this long-pending lawsuit, the Court addresses the Plaintiff's motion to be allowed to proceed with numerous claims arising out of a law enforcement search and seizure that took place at his residence on November 28, 2008. The Court allows some of the claims to go forward against some defendants and rejects other claims against other defendants.

         I. PROCEDURAL HISTORY

         On February 11, 2015, the Court issued a forty-seven-page screening order in which it granted David J. Widi, Jr.'s motion for leave to amend his complaint as to certain counts and denied it as to others. Screening Order, Order Vacating in Part Earlier Order Den. 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 Den. Mot. to Stay (ECF No. 270) (Screening Order). On May 4, 2015, Mr. Widi filed a motion asking the Court to reconsider its screening order. Mot. for Recons. (ECF No. 292) (Recons. Mot.). On December 8, 2015, the Court issued an order denying Mr. Widi's motion for reconsideration of its screening order. Order on Mot. for Recons. and Mot. Pursuant to Fed.R.Civ.P. 60 (ECF No. 325) (Recons. Order). In that order, the Court required Mr. Widi to produce some documentary evidence to support the allegations set forth in certain counts in his Second Amended Complaint. Id. at 1.

         On March 24, 2016, Mr. Widi responded to the Court's order and filed a motion asking the Court to reconsider its December 8, 2015 order denying his motion to reconsider its screening order. Resp. to Order on Mot. for Recons. and Mot. Pursuant to Fed. R. Civ. Pro. 60 with Accompanying Documentary Evid. and Mot. for Disc. (ECF No. 351) (Widi Mot.). The Defendant, Special Agent Paul McNeil, filed an opposition on April 15, 2016. McNeil's Opp'n to Pl.'s Resp. to Order on Mot. for Recons. (ECF No. 354) (McNeil Opp'n). On May 5, 2016, Mr. Widi filed a reply. Reply to McNeil's Opp'n to Pl.'s Resp. to Order on Mot. for Recons. (ECF No. 356) (Widi Reply).

         The Court previously addressed two portions of Mr. Widi's March 24, 2016 motion. On October 3, 2016, the Court refused to reinstate the dismissed claims against Defendant Special Agent McNeil. Order Den. Mot. to Compel Disc. and Strike (ECF No. 368). On November 21, 2016, the Court denied Mr. Widi's demand for recusal. Recusal Order (ECF No. 384). The Court now turns to the remainder of the claims in Mr. Widi's March 24, 2016 motion.

         II. BACKGROUND

         A. The February 11, 2015 Screening Order

         On February 11, 2015, the Court issued a screening order, addressing the claims left unscreened by the Magistrate Judge's July 13, 2012 screening order. Screening Order. Mr. Widi's First Amended Complaint contained fourteen counts and named thirty-five defendants. First Am. Compl. (ECF No. 15). Mr. Widi's Second Amended Complaint contained eighteen counts and named fifty defendants. Second Am. Compl. (ECF No. 191). In its February 11, 2015 order, the Court granted Mr. Widi's motion for leave to amend to file a second amended complaint regarding Count Two (the Excessive Force Claim), Count Thirteen (the Unlawful Probation Search claim) as against Detective Kevin Curran only, and Count Eighteen (the Freedom of Information Act / Privacy Act claim) as against the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Executive Office of the United States Attorney, and the Office of Information Policy. Screening Order at 46-47. However, the Court did not allow Mr. Widi to proceed on a number of the counts in the proposed Second Amended Complaint. Id. at 46.

         B. The Motion to Reconsider and Order on Motion to Reconsider

         On May 4, 2015, Mr. Widi objected to the Court's screening order. Recons. Mot. On December 8, 2015, the Court declined to alter its screening order but allowed Mr. Widi thirty days to move to amend his Second Amended Complaint as to certain counts. Recons. Order at 1. However, worried that Mr. Widi was shifting the factual allegations to respond to the Court's rulings, the Court required him to produce documentary evidence to support his newest allegations. Id. at 1, 25.

         C. The Motion to Reconsider the Order on the Motion to Reconsider

         On March 24, 2016, Mr. Widi both objected to the Court's December 8, 2015 reconsideration order and responded to the Court's order for documentary evidence supporting his newest allegations. Widi Mot. at 1-27. Mr. Widi's first contention is that in performing its screening review under 28 U.S.C. § 1915A, the Court erred in imposing a summary judgment standard against him. Id. at 1-3. Mr. Widi next objects to the Court's analysis of Bailey v. United States, 133 S.Ct. 1031 (2013). Widi Mot. at 3-5. Mr. Widi also objects to the Court's conclusions about the timeliness of his claims against Special Agent McNeil. Id. at 5-9. Mr. Widi responds to the Court's stated concerns about his allegations against Officer Moya of the EPD. Id. at 9-12. He also explains his ownership of the van. Id. at 12-14. Next, he argues that the search warrant in this case did not authorize a sniff search of the van. Id. at 14-16. Mr. Widi turns to the grey trailer and explains why he contends the search was impermissible. Id. at 16-18. Mr. Widi next addresses the seizure of the motorcycle and why he contends the seizure was impermissible. Id. at 18-21. Mr. Widi then reviews his defamation claim and argues that his allegations meet legal standards. Id. at 21-23. Mr. Widi reargues the Court's order on the motion for summary judgment in the probation search. Id. at 23-25. Finally, Mr. Widi contests the Court's ruling on prosecutorial immunity. Id. at 25-27.

         D. Special Agent McNeil's Opposition

         Special Agent McNeil opposed Mr. Widi's motion for reconsideration. McNeil Opp'n. First, Special Agent McNeil contends that Mr. Widi failed to comply with the time deadlines of the Court's rules and orders. Id. at 4-6. Next, Special Agent McNeil defends the Court's decision to require Mr. Widi to present some documentary evidence confirming the allegations in his second amended complaint. Id. at 6-10.

         E. David Widi's Reply

         On May 5, 2016, Mr. Widi filed a reply. Widi Reply. Mr. Widi reiterates his arguments about the Court applying a summary judgment standard to his motion to amend the complaint. Id. at 2-4. He then accuses Special Agent McNeil of twisting facts and misleading the Court concerning the timeliness of his filings. Id. at 4-5. Mr. Widi also addresses both the motorcycle and van counts. Id. at 5-8. Finally, he turns to the Right to Financial Privacy count. Id. at 8-10.

         III. DISCUSSION

         A. Timeliness

         In his objection, Special Agent McNeil argues that Mr. Widi's motion for reconsideration is untimely. McNeil Opp'n at 4-5. Mr. Widi replies that he has had difficulty receiving his legal mail due to the policies of the Federal Correctional Institute Pollock. Widi Reply at 4-5. The Court is aware that Mr. Widi, as well as other inmates, have experienced difficulty obtaining legal mail sent to them by the Clerk's Office in the District of Maine because the name of the Clerk of Court did not appear on the return address.[1] Order Dismissing Mot. for Ct. Intervention and Granting Mot. to Enlarge Time to File Resp. (ECF No. 227); United States v. Nóbrega, No. 1:10-cr-00186-JAW, Order on Def.'s Mot. Concerning the Warden's Mail Practices (ECF No. 357). In light of this difficulty, the Court is unable to conclude that Mr. Widi failed to timely comply with the deadlines because it is unclear when he actually received the Court's orders.

         B. Applying a Summary Judgment Standard to a Screening Order

         The Court rejects Mr. Widi's accusation that by requiring him to produce some documentary evidence of his newest allegations, it is applying a summary judgment standard to its screening authority under 28 U.S.C. § 1915A and his motion for leave to amend under Federal Rule of Civil Procedure 15(a). The Court is doing nothing of the kind. Instead, the Court is attempting to manage the litigation that Mr. Widi filed on June 13, 2012, over three years ago-making it the second oldest civil case assigned to this Judge-so that frivolous claims are ejected and only potentially meritorious claims proceed.

         More significantly, based in part on the Court's past experience with Mr. Widi, [2]the Court became concerned that Mr. Widi was tailoring his factual allegations to meet the Court's rulings. The clearest example is his allegation concerning ownership of his company van. In its February 11, 2015 screening order, the Court observed that in his Second Amended Complaint, Mr. Widi listed Widi Tile Company LLC as a party plaintiff and had asserted claims on its behalf for an allegedly illegal seizure of the company van. Screening Order at 37-39 (citing Second Am. Compl. at 25-26). In its screening order, the Court ruled that Mr. Widi could not proceed with a claim on behalf of his incorporated business. Id. In response, Mr. Widi changed his allegation to assert that he, not Widi Tile Company LLC, was the true owner of the company van. Recons. Mot. at 9-10. The Court was naturally skeptical about this change in allegation, and before allowing Mr. Widi to proceed with his newest allegation of the ownership of the company van, the Court required Mr. Widi to produce some documentary evidence as to the true owner. Recons. Order at 12-16. As Mr. Widi had added new allegations to his other counts, the Court applied the same principle to them as well, requiring him to produce some evidence beyond his own say-so that the factual allegations were true. The Court is not convinced that it should reconsider this part of its order on Mr. Widi's motion to reconsider.

         C. United States v. Bailey

         Mr. Widi also objects to the Court's conclusions about whether Special Agent McNeil was entitled to qualified immunity. Widi Mot. at 3-5. On September 23, 2013, the Court dismissed Mr. Widi's claim against Special Agent McNeil on the basis of qualified immunity, concluding that at the time of Mr. Widi's arrest, the controlling precedent from the United States Supreme Court allowed the arrest of occupants incident to the execution of a search warrant. Order Den. Pl.'s Mot to Stay; Den. Pl.'s Mot. to Strike; and Granting Def. McNeil's Mot. to Dismiss at 13-14 (ECF No. 170). In its February 11, 2015 screening order, the Court applied this same principle to other Defendants. Screening Order at 31-32. On May 4, 2015, Mr. Widi again objected to the Court's reasoning. Recons. Mot. at 1-4. On December 8, 2015, the Court issued a third opinion on the issue of qualified immunity. Recons. Order at 2- 5. On March 24, 2016, Mr. Widi objected a third time to the Court's ruling. Widi Mot. at 3-5. For the reasons the Court has repeatedly explained, the Court rejects Mr. Widi's United States v. Bailey claim.

         D. Excessive Force Claim Against Elliot Police Officer Elliott Moya

         In its reconsideration order of December 8, 2015, the Court allowed Mr. Widi to amend his Second Amended Complaint if he could present the Court with roughly contemporaneous evidence against Officer Elliott Moya that would provide a foundation for his allegations. Recons. Order at 5-7. On March 24, 2016, Mr. Widi submitted a memorandum with an appendix that he claims substantiates his allegations of excessive force against Officer Moya, which is set forth in Count Two of his Second Amended Complaint. Widi Mot. at 9-12. The Court has reviewed the appendix and agrees that there is sufficient evidence to allow Mr. Widi to proceed with his excessive force claim against Elliot Police Department Officer Elliott Moya. The Court previously expressed its substantial reservations about a tight handcuff claim, without more, as the basis of a lawsuit against the officer. Screening Order at 35 n.7. Nevertheless, based upon the current state of the law, Mr. Widi may proceed against Officer Moya.

         E. Ownership of the Company Van

         In its reconsideration order, the Court allowed Mr. Widi to amend his Second Amended Complaint if he could provide the Court with documentary evidence that he, not Widi Tile Company LLC, was the owner of the van seized in November 2008. Recons. Order at 12-17. The Court reviewed Mr. Widi's appendix and agrees that he has presented sufficient evidence for the Court to conclude for purposes of judicial screening of his allegations that he was the owner of the seized van in November 2008.

         F. The First Sniff Search

         In its screening and reconsideration orders, the Court addressed Counts Three, Four, Five, and Six of the Second Amended Complaint. Screening Order at 36-39; Recons. Order at 10-17. Count Three alleges that law enforcement engaged in an illegal sniff search of his company van while they executed the November 28, 2008 search of his residence but that the sniff test came back negative. Second Am. Compl. ¶¶ 76-82. Count Four alleges that law enforcement seized the van by loading it on a flatbed causing Mr. Widi to suffer business damages. Id. ¶¶ 83-91. Count Five alleges that on November 30, 2008, law enforcement conducted a second sniff search of the van, which came back positive. Id. ¶¶ 92-98. Count Six alleges that law enforcement improperly obtained a search warrant of the van by omitting reference to the first negative sniff. Id. ¶¶ 99-104. In its reconsideration order, the Court stated that if Mr. Widi demonstrated that he, not Widi Tile Company LLC, owned the van, it would reinstate Counts Four, Five and Six of the Second Amended Complaint. Recons. Order at 16-17.

         This is not enough for Mr. Widi. He demands that the Court reinstate Count Three, which alleged that law enforcement engaged in an illegal sniff search of the van while executing the search warrant on November 28, 2008. Recons. Mot. at 14- 16. He points out that his van was parked in a parking lot behind his apartment building and was not visible from the street. Id. at 15. Thus, he argues that his van was located in a ‚Äúconstitutionally-protected area, ...


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