United States District Court, D. Maine
DAVID J. WIDI, JR., Plaintiff,
PAUL MCNEIL, et al., Defendants.
ORDER ON DEFENDANTS KEVIN CADY AND ROBERT BROWN'S
MOTION TO DISMISS COUNTS IV, V AND VI
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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).
THE SECOND AMENDED COMPLAINT
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.
Count IV - Illegal Seizure of Tile Company Van
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.
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.
Count V - Second Illegal Sniff
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.
Count VI - Search Warrant and Omission of Probable
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 ...