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Widi v. McNeil

United States District Court, D. Maine

April 23, 2018

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

          ORDER ON STEPHEN E. HICKEY AND MICHAEL GRASSO'S MOTION FOR SUMMARY JUDGMENT ON COUNT VII OF THE SECOND AMENDED COMPLAINT

          JOHN A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE

         Claiming that a grey trailer on his property was illegally opened and searched by law enforcement, a plaintiff claims that two law enforcement officers were the individuals involved in the allegedly illegal trailer search. In response, the officers have submitted sworn declarations that when they came upon the grey trailer, the door of the trailer was wide open and they observed and photographed items in plain view. Although the plaintiff is skeptical of the officers' sworn statements, the Court concludes that there is no evidence contradicting the officers' versions of the search of the grey trailer and that the officers are therefore entitled to summary judgment because they cannot be said to have illegally searched something in plain view.

         I. BACKGROUND

         On June 13, 2012, David J. Widi, Jr. filed a civil rights complaint against a host of defendants, including Alcohol, Tobacco and Firearms (ATF) Agents Stephen E. Hickey, Jr. and Michael Grasso. Compl. (ECF No. 1). On July 13, 2012, the Magistrate Judge issued a screening order and authorized service of process on five defendants, not including ATF Agents Hickey and Grasso; the Magistrate Judge did not address the viability of the claims against Agents Hickey and Grasso. Order for Serv. After Screening Compl. Pursuant to 28 U.S.C. § 1915A (ECF No. 6). On August 2, 2012, he amended the complaint. Am. Compl. (ECF No. 15). In the Amended Complaint, Mr. Widi made allegations against Agents Hickey and Grasso, arising out of a search of his residence on November 28, 2008. Id.

         On November 18, 2013, Mr. Widi filed a second amended complaint but failed to file a motion for leave to amend the first amended complaint. Second Am. Compl. (ECF No. 191). After straightening out a procedural tangle, the Court issued an extensive order on February 11, 2015, screening the allegations in the Second Amended Complaint and allowing some, but not all to go forward. 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). As a result of the February 11, 2015 order, the Second Amended Complaint became the operative complaint in this case.

         In the Second Amended Complaint, specifically in Count VII, Mr. Widi claimed that certain unnamed ATF and other law enforcement agents unlawfully searched his grey trailer on November 28, 2008. Second Am. Compl. at 29. However, in its February 11, 2015 screening order, the Court concluded that Count VII should not go forward because of its scattershot approach. Screening Order at 39. On May 4, 2015, Mr. Widi filed a motion asking the Court to reconsider its screening order. Mot. for Recons. (ECF No. 292) (First Recons. Mot.). On December 8, 2015, the Court issued a twenty-five page order denying Mr. Widi's motion for reconsideration of its screening order, and requiring Mr. Widi to present some documentary evidence supporting his allegations. Order on Mot. for Recons. and Mot. Pursuant to Fed.R.Civ.P. 60 (ECF No. 325) (First Recons. Order).

         On March 24, 2016, Mr. Widi filed another motion for the Court to reconsider its 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) (Mot. to Recons. Order on Mot. to Recons.). On January 10, 2017, the Court issued a thirty-three page order, granting the motion in part and denying it in part. Order on Mot. for Recons. (ECF No. 392) (Second Recons. Order). Acknowledging that Mr. Widi's allegations against Agents Hickey and Grasso were “thin”, the Court nevertheless allowed Mr. Widi to proceed against these Agents based on the allegation that the Agents opened up the grey trailer door and photographed a motorcycle inside a grey trailer on Mr. Widi's property for which there was no search warrant. Id. at 19-20. On March 31, 2017, Agents Grasso and Hickey answered the amended complaint. Stephen E. Hickey, Jr.'s Ans. to Second Am. Compl. and Affirmative Defenses (ECF No. 424); Michael Grasso's Ans. to Second Am. Compl. and Affirmative Defenses (ECF No. 425).

         On April 18, 2017, Agents Grasso and Hickey moved for summary judgment and submitted a statement of undisputed material facts. Stephen E. Hickey and Michael Grasso's Mot. for Summ. J. on Count VII of the Second Am. Compl. (ECF No. 428) (Defs.' Mot.); Statement of Undisputed Material Facts (ECF No. 429) (DSMF). After a series of extensions, on July 28, 2017, Mr. Widi filed a response, an opposing statement of material facts, and a set of additional facts. Opp'n to Hickey and Grasso's Mot. for Summ. J. on Count VII of the Second Am. Compl. (ECF No. 473) (Pl.'s Opp'n); Opposing Statement of Material Facts (ECF No. 474) (PRDSMF; PSAMF). On August 7, 2017, Agents Grasso and Hickey filed a reply memorandum and a reply to Mr. Widi's additional material facts. Stephen E. Hickey and Michael Grasso's Reply Br. in Support of Their Mot. for Summ. J. on Count VII of the Second Am. Compl. (ECF No. 479); Defs.' Resps. to Pl.'s Statement of Additional Fact (ECF No. 480) (DRPSAMF).

         II. LEGAL STANDARD

         A court may grant summary judgment under Federal Rule of Civil Procedure 56 if the record demonstrates that “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). “A ‘material' fact is a ‘contested fact [that] has the potential to change the outcome of the suit under the governing law if the dispute over it is resolved favorably to the nonmovant, ' and a ‘genuine issue' means that ‘the evidence about the fact is such that a reasonable jury could resolve the point in favor of the nonmoving party.'” McCarthy v. City of Newburyport, 252 Fed.Appx. 328, 332 (1st Cir. 2007) (quoting Navarro v. Pfizer Corp., 261 F.3d 90, 93-94 (1st Cir. 2001)) (internal quotation marks and citation omitted). The Court must examine the record evidence “in the light most favorable to [the nonmovant], and [must draw] all reasonable inferences in . . . favor [of the nonmoving party].” Foley v. Town of Randolf, 598 F.3d 1, 5 (1st Cir. 2010). At the same time, courts ignore “conclusory allegations, improbable inferences, and unsupported speculation.” Cortés-Rivera v. Dep't of Corr. & Rehab., 626 F.3d 21, 26 (1st Cir. 2010) (quoting Sullivan v. City of Springfield, 561 F.3d 7, 24 (1st Cir. 2009)).

         III. STATEMENT OF FACTS

         A. The Parties

         David J. Widi, Jr. was investigated for, charged with, and ultimately convicted of being a felon-in-possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1) and manufacturing marijuana in violation of 21 U.S.C. § 841(a)(1) in the District of Maine. DSMF ¶ 1; PRDSMF ¶ 1. Stephen E. Hickey and Michael Grasso are both currently employed as Special Agents of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). DSMF ¶ 2; PRDSMF ¶ 2. During November of 2008, Agents Hickey and Grasso were both assigned to the Portland office of ATF, along with Special Agent Paul J. McNeil. DSMF ¶ 3; PRDSMF ¶ 3.

         B. Events Leading up to the Search at Mr. Widi's Residence

         Special Agent Kevin Curran of the Eliot Police Department and the Maine Drug Enforcement Agency (MDEA) began investigating David J. Widi, Jr. after debriefing an informant in July of 2008. PSAMF ¶ 19; DRPSAMF ¶ 19. Agent Curran included Agent McNeil of ATF in the investigation and Agents Curran and McNeil worked closely together from the beginning of the investigation. Id. On November 25, 2008, Agent McNeil submitted an application and obtained a federal search warrant for Mr. Widi's residence. PSAMF ¶ 20; DRPSAMF ¶ 20. Agents McNeil and Curran arranged to have members of the ATF, the Eliot Police Department, the MDEA, and the Maine State Police jointly execute the warrant. Id.

         On November 28, 2008, the law enforcement personnel who were to be involved in the execution of the warrant held a pre-search briefing.[1] PSAMF ¶ 21; DRPSAMF ¶ 21. Agent Curran arranged to have a K-9 unit at the scene in order to conduct an external sniff of Mr. Widi's van when the search warrant was being executed.[2] Id.

         After law enforcement completed the briefing, Mr. Widi left his apartment and traveled to a gas station where he was subjected to a de facto arrest. PSAMF ¶ 22; DRPSAMF ¶ 22. It was Mr. Widi's common practice always to secure the premises before leaving and he ensured that the grey utility trailer was locked before he left. Id. After his arrest at the gas station, Mr. Widi was returned to his apartment in a patrol car and he observed that the grey trailer remained locked for the hour he was present. Id. Sometime after Mr. Widi was transported to the Eliot Police Station, the grey trailer was opened by someone using keys that Agent Curran took from him and gave to Agent McNeil.[3] Id. The search warrant did not authorize a search of the grey trailer. Id.

         C. The Search at Mr. Widi's Residence

         On the morning of November 28, 2008, Agents Hickey and Grasso participated in the execution of a federal search warrant at Mr. Widi's residence in Eliot, Maine; Agent McNeil had already obtained the search warrant. DSMF ¶ 4; PRDSMF ¶ 4. Agents Hickey and Grasso were assisted by state and local law enforcement officers, who were also present at the scene. Id. Although Mr. Widi continues to question whether the evidence was sufficient to warrant his convictions, the search yielded evidence that, with other evidence, was sufficient to support the arrest, prosecution, and ultimately the conviction of Mr. Widi on drug and firearms charges. DSMF ¶ 5; PRDSMF ¶ 5.[4]

         Before the search for contraband began on the morning of November 28, 2008, ATF agents conducted a preliminary security “sweep” of Mr. Widi's residence to ensure that no one was present inside. DSMF ¶ 6; PRDSMF ¶ 6. During the execution of the search warrant, ATF created three video segments that they said were a pre-search view of the apartment, a view of the shed, and a post-search view of the apartment. PSAMF ¶ 23; DRPSAMF ¶ 23. Videotaping the premises prior to the execution of any search warrant is standard ATF operating procedure. DSMF ¶ 8; PRDSMF ¶ 8. The sound and time-stamp features were intentionally turned off.[5]PSAMF ¶ 23; DRPSAMF ¶ 23. The video attached to Special Agent Douglas Kirk's declaration is the same video the prosecution submitted at Mr. Widi's criminal trial. Id. During Mr. Widi's criminal trial, Agent McNeil testified that the pre-search segment of the video was taken before the search. Id. ATF Agent Kirk videotaped the interior and exterior of Mr. Widi's residence as well as the yard and nearby shed in order to create a permanent record of the premises.[6] DSMF ¶ 7; PRDSMF ¶ 7. The video shows a .50 caliber barrel in a box on the kitchen table and the same .50 caliber barrel was photographed in the attic of the apartment.[7] Id. There was a draft Photo Log created during the execution of the search warrant captured in one of the photographs provided as part of the discovery in Mr. Widi's criminal case, and the copy submitted by Agent Hickey is not a true and accurate copy of the draft log generated during the search. PSAMF ¶ 24; DRPSAMF ¶ 24.[8]

         D. The Alleged Search of the Grey Trailer

         The videotape by Agent Kirk includes footage of the grey trailer and the motorcycle inside the trailer. DSMF ¶ 9; PRDSMF ¶ 9. At the time Agent Kirk filmed the trailer, it was wide open. Id.[9] Prior to the execution of the search warrant, Agent Hickey was assigned to take photographs of the premises and items found during the search. DSMF ¶ 11; PRDSMF ¶ 10. At some point during the day, while the search warrant was being executed, Agent Grasso asked Agent Hickey to take a photograph of the grey trailer, and Agent Hickey thereafter photographed the trailer and the Harley Davidson inside the trailer, which was in plain view.[10] DSMF ¶ 12; PRDSMF ¶ 12. Neither Agent Hickey nor Agent Grasso opened the trailer.[11] DSMF ¶ 13; PRDSMF ¶ 13. The trailer was already open when each of them first encountered it. Id. Agent Grasso does not recall “finding” the trailer.[12] DSMF ¶ 14; PRDSMF ¶ 14. In fact, he was not even “looking” for the trailer because it was not one of the locations they were focusing on during the execution of the search warrant. Id. Agent Hickey listed Agent Grasso as the individual who “found” the trailer simply because Agent Grasso was the one who asked him to photograph it. DSMF ¶ 15; PRDSMF ¶ 15. Agent Grasso's best guess as to why he asked Agent Hickey to take a picture of the trailer is that some other law enforcement officer at the scene asked if ATF could take a photograph of the trailer.[13] DSMF ¶ 16; PRDSMF ¶ 16.

         Neither Agent Hickey nor Agent Grasso has any information regarding who, if anyone, opened the trailer on November 28, 2008.[14] DSMF ¶ 17; PRDSMF ¶ 17. Indeed, they believe it is possible that the trailer was in that condition when law enforcement arrived to execute the search warrant that day. Id. Defendants' respective recollections regarding the condition of the trailer at the time they first encountered it (i.e. the fact that it was already open) are confirmed by the ...


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