United States District Court, D. Maine
DAVID J. WIDI, JR., Plaintiff,
PAUL MCNEIL, et al., Defendants.
ORDER ON STEPHEN E. HICKEY AND MICHAEL GRASSO'S
MOTION FOR SUMMARY JUDGMENT ON COUNT VII OF THE SECOND
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
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.
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.
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.
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).
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).
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).
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
STATEMENT OF FACTS
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.
Events Leading up to the Search at Mr. Widi's
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.
November 28, 2008, the law enforcement personnel who were to
be involved in the execution of the warrant held a pre-search
briefing. 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. Id.
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. Id. The search warrant did not
authorize a search of the grey trailer. Id.
The Search at Mr. Widi's Residence
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 ¶
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.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. 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. 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 ¶
The Alleged Search of the Grey Trailer
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. 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. DSMF ¶ 12; PRDSMF ¶ 12.
Neither Agent Hickey nor Agent Grasso opened the
trailer. 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. 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. DSMF ¶
16; PRDSMF ¶ 16.
Agent Hickey nor Agent Grasso has any information regarding
who, if anyone, opened the trailer on November 28,
2008. 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 ...