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Widi v. McNeil

United States District Court, D. Maine

September 19, 2017

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

          ORDER ON DEFENDANTS KEVIN CADY AND ROBERT BROWN'S MOTION TO DISMISS COUNTS IV, V AND VI

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

         The Court denies in part and grants in part a motion to dismiss three counts against two law enforcement officers, which allege that they participated in a conspiracy to violate a plaintiff's civil rights. The Court concludes that the plaintiff's allegations state plausible claims that the officers participated in a conspiracy to conduct an illegal seizure and search but does not state a plausible claim that they omitted probable cause factors from an affidavit in support of a search warrant.

         I. BACKGROUND

         The procedural history of Mr. Widi's claims against Kevin Cady and Robert Brown, leading to their motion to dismiss, is convoluted. To begin, Mr. Widi named Lieutenant Kevin Cady and Officer Robert Brown, officers with the town of Eliot Police Department, in his initial complaint filed on June 13, 2012. Compl. (ECF No. 1). On July 13, 2012, the Magistrate Judge screened the complaint and specifically authorized Mr. Widi to proceed against five defendants, but she did not address the claims against the remaining thirty-five defendants, including Lieutenant Cady and Officer Brown. Order for Service After Screening Compl. Pursuant to 28 U.S.C. § 1915A (ECF No. 6). Mr. Widi twice amended his complaint and on February 11, 2015, the Court screened the Second Amended Complaint as to those defendants not screened on July 13, 2012. 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). In its Screening Order, the Court allowed Mr. Widi to proceed against Lieutenant Cady and Officer Brown on Count II, excessive force, but not on Counts III, IV, V or VI. Id. at 35-39. Counts III and IV alleged illegal sniff searches of his company van and Counts V and VI alleged illegal seizure of the van and the omission of probable cause factors in obtaining a warrant to search the van. Second Am. Compl. ¶¶ 76-104 (ECF No. 191).

         On May 4, 2015, Mr. Widi moved for reconsideration of the Screening Order. Mot. for Recons. (ECF No. 292). On December 8, 2015, the Court reiterated its ruling on Count III of the Second Amended Complaint, but it allowed Mr. Widi to provide some proof for his assertions related to Counts IV, V, and VI. Order on Mot. for Recons. and Mot. Pursuant to Fed. R. of Civ. Pro 60 (ECF No. 325). On March 16, 2016, Mr. Widi responded to the December 8, 2015 order. Resp. to Order on Mot. for Recons. and Mot. Pursuant to Fed. R. of Civ. P. 60 with Accompanying Documentary Evid. and Mot. for Disc. (ECF No. 351). On January 10, 2017, the Court allowed Counts IV, V and VI to proceed against Lieutenant Cady and Officer Brown. Order on Mot. for Recons. (ECF No. 392).

         On January 24, 2017, Lieutenant Cady and Officer Brown moved to dismiss Counts IV, V and VI. Defs. Kevin Cady and Robert Brown's Mot. to Dismiss Counts IV, V and VI (ECF No. 403) (Defs.' Mot.). On June 26, 2017, Mr. Widi filed a response. Opp'n to Defs. Brown and Cady's Mot. to Dismiss for Failure to State a Claim with Regards to Counts IV, V and VI of the Second Am. Compl. (ECF#403) (ECF No. 455) (Pl.'s Opp'n). On July 10, 2017, Lieutenant Cady and Officer Brown filed their reply. Reply Mem. of Law in Support of Defs. Kevin Cady and Robert Brown's Mot. to Dismiss Counts IV, V and VI (ECF No. 460) (Defs.' Reply).

         II. THE SECOND AMENDED COMPLAINT

         David Widi's allegations against Lieutenant Cady and Officer Brown arise out of a series of incidents in November 2008, during which Mr. Widi was arrested, his residence searched, and his van towed and searched. Second Am. Compl. ¶¶ 76-104. Mr. Widi alleged that Lieutenant Cady and Officer Brown were employed by the town of Eliot Police Department. Id. ¶¶ 19-20. He stated that Lieutenant Cady “participated in the seizure of Mr. Widi and the search of his residence” and “was in charge of holding Mr. Widi at the Eliot Police Department and he refused Mr. Widi privacy to speak with his attorney.” Id. ¶ 19. He alleged that Lieutenant Cady “supervised the EPD (Eliot Police Department) officers.” Id. As regards Officer Brown, Mr. Widi alleged that he “participated in the seizure of Mr. Widi and the search of his residence.” Id. ¶ 20.

         A. Count IV - Illegal Seizure of Tile Company Van

         In Count IV, Mr. Widi alleges that the officers, including officers from the EPD, who were to participate in the search of Mr. Widi's home, gathered in a pre-search briefing where they “made plans and agreed to seize Mr. Widi's tile company van, even though it was not listed in the warrant.” Id. ¶ 84. He claims that Lieutenant Cady “attempted to get Mr. Widi's consent to allow the ATF and members of the search team to search his tile company van, ” but Mr. Widi “declined to allow the search.” Id. ¶ 85.

         Regarding Officer Brown, Mr. Widi claims that another officer “requested that [Officer] Brown return to Mr. Widi's residence, where [Officer] Curran directed him to observe the van being loaded on a flatbed.” Id. ¶ 86. Mr. Widi says that the search warrant “did not authorize the seizure of Mr. Widi's van” and his van “contained Mr. Widi's tile company tools and business papers, including contracts for tile jobs.” Id. ¶ 87. Mr. Widi cites a decision from this District during his criminal case that the van seizure “violated the Fourth Amendment. United States v. Widi, 686 F.Supp.2d 107, 114-15 (D. Me. 2010).” Id. ¶ 88. He alleges that the EPD defendants violated his constitutional rights by seizing the van and demanded damages. Id. ¶¶ 89-91.

         B. Count V - Second Illegal Sniff

         In Count V, Mr. Widi re-alleges the pre-search conference and the van seizure despite the fact that the van was not contained in the search warrant. Id. ¶¶ 92-93. After seizing the van, Mr. Widi says the police subjected the van to a second sniff test on November 30, 2008, which he acknowledged was positive. Id. ¶ 94. Specifically, he alleged that Officer Curran and Officer Short had Officer Carr conduct the second sniff search. Id. He claims that the officers of the EPD, among others, violated his constitutional rights. Id. ¶ 97.

         C. Count VI - Search Warrant and Omission of Probable Cause Factors

         In Count VI, Mr. Widi again alleges the pre-search conference and illegal van seizure despite the fact that the van was not contained in the search warrant. Id. ¶ 100. He alleges that after the second positive sniff, Officer Curran submitted an affidavit to Judge O'Neill at the York District Court per Agent McNeil and Officer Short's instruction. Id. ¶ 101. Mr. Widi alleges that “Curran, Short, McNeil, Armstrong, and Anderson agreed to omit information regarding the negative sniff with intentional and reckless disregard for the truth because that fact would have had an adverse affect ...


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