WIDI v. MCNEIL et al

Filing 325

ORDER denying 292 Motion for Reconsideration filed by DAVID J WIDI, JR. This Motion 292 is denied with the exceptions outlined in the Order. Denying 311 Motion for Relief under Fed.R.Civ.P. 60 filed by DAVID J WIDI, JR. By JUDGE JOHN A. WOODCOCK, JR. (MFS)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
DAVID J. WIDI, JR.,
Plaintiff,
v.
PAUL MCNEIL, et al.,
Defendants.

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2:12-cv-00188-JAW

ORDER ON MOTION FOR RECONSIDERATION AND MOTION
PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 60
David J. Widi, Jr. returns to this Court, urging it once again to reconsider its
orders. In general, the Court refuses to change its earlier rulings. However, as Mr.
Widi is challenging a screening order under 28 U.S.C. § 1915A and First Circuit law
deems it preferable to allow a litigant whose claims may fail under § 1915A an
opportunity to amend the complaint to cure any defects, the Court allows Mr. Widi
thirty days to move to amend his Second Amended Complaint as to certain Counts.
At the same time, because Mr. Widi seems to have shifted the facts to suit legal
rulings, because the Court has previously determined that Mr. Widi’s factual claims
against a government defendant were fanciful, and because Mr. Widi charges law
enforcement officials with violations that could affect their reputations and
professional and personal standing, the Court is requiring Mr. Widi to produce
documentary evidence to support his newest set of allegations.

I.

MOTION FOR RECONSIDERATION
A.

The Bailey v. United States Argument

In his sixty-nine page Second Amended Complaint, Mr. Widi claimed in Count
One that on the morning of November 28, 2008, a number of law enforcement officers
unlawfully seized him at a local Irving Oil convenience store about 300 yards from
his apartment, where they were executing a search warrant. Second Am. Compl. ¶¶
56-65 (ECF No. 191) (Second Am. Compl.). On February 11, 2015, the Court issued
a screening order pursuant to 28 U.S.C. § 1915A in which it held that Count One of
the Second Amended Complaint must be dismissed because Michigan v. Summers,
452 U.S. 692, 705 (1981)—the controlling United States Supreme Court precedent in
November 2008—allowed arrests of occupants incident to the execution of a search
warrant.

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). Mr. Widi chafes at the
Court’s dismissal and insists that under Bailey v. United States, 133 S. Ct. 1031
(2013) his arrest was unlawful.
The Court first explained its position on this issue on September 24, 2013,
when it dismissed his claim against Special Agent Paul McNeil based on its
conclusion that Agent McNeil was entitled to qualified immunity. Order Denying
Pl.’s Mot. to Stay; Denying Pl.’s Mot. to Strike; and Granting Def. McNeil’s Mot. to
Dismiss at 17-19 (ECF No. 170) (McNeil Order). The Court noted that to prevail in

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this claim, Mr. Widi had to demonstrate that the right he claims the law enforcement
defendants violated was “clearly established” at the time of the alleged violation. Id.
(quoting Maldonado v. Fontanes, 568 F.3d 263, 269 (1st Cir. 2009)). The Court
concluded that the arrest of Mr. Widi did not violate clearly established law as of 2008
and that Agent McNeil was entitled to qualified immunity. McNeil Order at 19. Since
September 24, 2013, the Court has applied this rationale to the remaining officers
that Mr. Widi has sued for his Irving Oil arrest. Screening Order at 31-32. Mr. Widi
objects to the dismissals and now files a motion for reconsideration, arguing the Court
erred. Mot. for Recons. at 1-4 (ECF No. 292) (Pl.’s Mot. for Recons.). In his motion,
he contends that Michigan v. Summers was limited to the occupants of buildings to
be searched and did not extend to persons stopped away from the searched building.
Id.
In the Court’s view, Mr. Widi is simply wrong. Bailey itself demonstrates that
the limitation on arrests pursuant to a search warrant was not clearly established in
2008. In Bailey, the police were preparing to execute a warrant to search a basement
apartment for a handgun when they saw two men exit the gated area above the
apartment and drive away. Bailey, 133 S. Ct. at 1036. The police followed them and
stopped them about one mile away from the apartment. Id. The police did a patdown
search of the men, and one of the men possessed keys that later turned out to fit the
apartment. Id. The police handcuffed the men and drove them in a patrol car back
to the apartment. Id. In Bailey, the Supreme Court concluded that the Summers

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detention rule was limited to the immediate vicinity of the premises to be searched.
Id. at 1042-43.
The Bailey case came to the Supreme Court from the Second Circuit Court of
Appeals. Bailey, 652 F.3d 197 (2d Cir. 2011). In its 2011 opinion, the Second Circuit
ruled that the police stop and detention of the defendant about a mile from the
searched residence was lawful under Summers. Id. at 206 (“[W]e have no trouble
concluding that Bailey’s detention was lawful under the Fourth Amendment”). The
Second Circuit noted that whether a detention of a person who had left the searched
premises may be permitted under Summers had split the circuits, with three circuits
concluding that such detentions were permissible and two concluding they were not.
Id. at 204-06. In Bailey, the Second Circuit joined the majority in holding that such
a detention was permissible under Summers. Finally, the Supreme Court was itself
not unanimous. There were six justices in the majority, and three justices—Justices
Breyer, Thomas, and Alito—dissented. Bailey, 133 S. Ct. at 1035-50.
This recitation demonstrates the error in Mr. Widi’s repeated argument. Mr.
Widi would have the police officers who detained him in November 2008 be better
judges of the scope of the Summers rule than three Justices of the United States
Supreme Court and numerous judges of four courts of appeal. Based on the opinions
of these distinguished jurists, the Court reiterates its conclusion that the right to be
free from detention in Mr. Widi’s circumstances was not clearly established as of
November 2008. Mr. Widi’s continued citation to Bailey and to cases that have
followed Bailey do not change this Court’s view that before Bailey, the Bailey holding

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was not clearly established law, and that the police officers who detained him in
November 2008 relying on Summers are entitled to qualified immunity.1
B.

Eliot Police Officer Elliot Moya

In Count Two of the Second Amended Complaint, Mr. Widi alleged that a
number of police officers had applied his handcuffs too tightly and had failed to
respond to his demands that the handcuffs be loosened. Second Am. Compl. ¶¶ 6675. In its Screening Order, the Court let stand—despite substantial reservations—
the claims against town of Eliot Police Officer Robert Brown and Lieutenant Kevin
Cady. Screening Order at 32-36. However, reviewing Mr. Widi’s allegations against
Officer Elliot Moya, the Court concluded that the allegations were insufficient to
prevent dismissal. Id. at 35-36.
The sole allegations in the Second Amended Complaint against Officer Moya
were:
Curran instructed Brown and Moya to transport Mr. Widi back to his
residence at McNeil’s directive. Mr. Widi complained during the
transport that the handcuffs were too tight. Moya said he’d have to take
it up with the ATF. Brown and Moya had the ability to loosen the
handcuffs and the keys to do so.
Second Am. Compl. ¶ 71. There is only one other mention of Officer Moya:

The Bailey Court allowed detention for persons in the “immediate vicinity” of the searched
premises. Bailey, 133 S. Ct. at 1042. It explained that the “immediate vicinity” requirement is
intended to limit detention to areas in which an occupant “poses a real threat to the safe and efficient
execution of a search warrant.” Id. Among the factors a court may weigh in determining whether a
person was in the “immediate vicinity” are “the lawful limits of the premises, whether the occupant
was within the line of sight of his dwelling, the ease of reentry from the occupant’s location, and other
relevant factors.” Id. Since Bailey, the United States Supreme Court used the term “near” to describe
the immediate vicinity requirement. Fernandez v. California, 134 S. Ct. 1126, 1136 (2014). The Court
does not reach whether Mr. Widi’s presence at a gas station 300 yards away from the searched
residence would be deemed in the “immediate vicinity.” There is no evidence in this record for some
of the Bailey factors, including line of sight.
1

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Brown’s use of handcuffs was unreasonable, excessive, and applied to
cause harm to Mr. Widi. McNeil, Curran, Cady, and Moya had sufficient
time and opportunity to intervene, yet they did not act to protect Mr.
Widi from the excessive use of force and it was unreasonable for them to
fail to prevent the excessive use of force. The defendants were
deliberately indifferent to the harm being caused to Mr. Widi.
Id. ¶ 74.

Based on a close reading of the allegations in the Second Amended

Complaint against Officer Moya, which consisted of his presence in a police car for a
brief interval as Mr. Widi was being brought from the gas station to his apartment,
the Court concluded that the allegations were insufficient to support an excessive
force claim. Screening Order at 35-36.
Mr. Widi returns and attempts to add allegations to his Second Amended
Complaint not present in the Complaint itself, extending the time during which
Officer Moya was present. Pl.’s Mot. for Recons. at 5-6. He now says that Officer
Moya was present at the scene while Mr. Widi was handcuffed and that he drove Mr.
Widi to the police station. Id. But these additional allegations appear nowhere in
Mr. Widi’s sixty-nine page Second Amended Complaint. Second Am. Compl. at 1-69.
The Court declines to consider them in this Order.2
However, the First Circuit has written that “[o]rdinarily, before dismissal for
failure to state a claim is ordered, some form of notice and an opportunity to cure the
deficiencies in the complaint must be afforded.” Brown v. Rhode Island, 511 Fed.

Mr. Widi says that the Second Amended Complaint makes reference to “incorporated
transcripts” and says that they contain information that supports his current contention that Officer
Moya was present “the entire time.” Pl.’s Mot. for Recons. at 6. Even though a plaintiff is entitled to
provide a “short and plain statement of the claim,” the short and plain statement must show that the
plaintiff is “entitled to relief.” FED. R. CIV. P. 8(a)(2). The Second Amended Complaint is Mr. Widi’s
third version of his claims and does not lack for detail. The Court will not fish through referenced
transcripts to provide sufficient detail to Mr. Widi’s claims and will hold him to what he has alleged
against Officer Moya, not what might appear somewhere in a referenced transcript.
2

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Appx. 4, 5 (1st Cir. 2013) (citing Chute v. Walker, 281 F.3d 314, 319 (1st Cir. 2002);
Street v. Fair, 918 F.2d 269, 272-73 (1st Cir. 1990) (per curiam)). This Court is
reluctant to prolong this unwieldy case any longer than necessary, but it is guided by
the First Circuit. As with some of the other Counts, the Court will allow Mr. Widi to
file a motion to amend the Second Amended Complaint setting forth more detailed
allegations against Officer Moya. But, given his continually shifting allegations, the
Court will require Mr. Widi to present more to the Court than his own say-so. To
amend this Count against Officer Moya, Mr. Widi must present the Court with some
documentation that is roughly contemporaneous with Officer Moya’s actions that
substantiate his accusations or that demonstrate that someone other than Mr. Widi
has provided a foundation for his allegations. Mr. Widi must file this motion to amend
the Second Amended Complaint within thirty days of the date of this Order.
C.

Special Agent Paul McNeil

On September 24, 2013, the Court addressed Special Agent Paul McNeil’s
motion to dismiss or motion for summary judgment against the Amended Complaint
in a thirty-six page order and granted his motion to dismiss. McNeil Order at 1-36.
On November 18, 2013, Mr. Widi filed a Second Amended Complaint and made
numerous specific allegations against Special Agent McNeil. Second Am. Compl. ¶¶
7, 59, 61-62, 67-68, 71, 73-74, 86, 94-95, 101-02, 112-13, 115, 121, 123-24, 128, 13233, 137-38, 142, 150, 154-55, 159.3 The Second Amended Complaint attempted to add
certain allegations against Special Agent McNeil, most of which were contained in

3

The Second Amended Complaint’s enumeration of allegations is not strictly sequential.

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the earlier litigated pleading. See Second Am. Compl. Count III (Illegal Sniff Search),
Count IV (Illegal Seizure of Tile Company Van), Count V (2nd Illegal Sniff Search).
In its February 11, 2015 ruling, the Court declined to allow Mr. Widi to restate
dismissed claims or assert new claims against Special Agent McNeil. Screening
Order at 35 (citing McNeil Order).
In his motion for reconsideration, Mr. Widi asserts that the Court’s
reasoning—that it would not allow a resurrected claim—is “not true as a matter of
law.” Pl.’s Mot. for Recons. at 6. Citing Torres-Álamo v. Puerto Rico, 502 F.3d 20, 25
(1st Cir. 2007), Mr. Widi says that the First Circuit allows such amendments under
Federal Rule of Civil Procedure 15(a). In Torres-Álamo, however, the First Circuit
observed that there are legitimate reasons to deny a motion to amend including
“undue delay, bad faith, futility, and the absence of due diligence on the movant’s
part.” Id. (quoting Palmer v. Champion Mortg., 465 F.3d 24, 30 (1st Cir. 2006). See
also Home Orthopedics Corp. v. Rodriguez, 781 F.3d 521, 531 (1st Cir. 2015)
(affirming district court’s denial of a party’s motion to amend where further
amendment would “do little more than further waste the time of the courts and
litigants”).
Here, Mr. Widi’s Complaint has been pending since June 13, 2012, making it
one of the oldest cases on this Court’s docket. Compl. (ECF No. 1). It was on October
15, 2012 that Special Agent McNeil filed a dispositive motion against Mr. Widi’s
Amended Complaint. Special Agent McNeil’s Mot. to Dismiss or for Summ. J. (ECF
No. 37). The motion was thoroughly briefed by both Special Agent McNeil and Mr.

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Widi. Mr. Widi filed his objection on March 4, 2013, David Widi’s Opp’n to McNeil’s
Mot. to Dismiss and for Summ. J. (ECF No. 102), and Special Agent McNeil filed his
reply on March 25, 2013. McNeil’s Reply to Pl.’s Opp’n (ECF No. 127). On September
24, 2013, the Court issued an extensive order on the dispositive motion and dismissed
Special Agent McNeil. McNeil Order at 1-36.
Now, more than two years after the Court dismissed all Counts against Special
Agent McNeil and more than three years after suit was filed, Mr. Widi seeks to bring
Special Agent McNeil back in under Rule 15(a). Even though Mr. Widi has not filed
a Rule 15(a) motion to allow him to state or restate claims against Special Agent
McNeil, the Court would not grant the motion. First, although he has recast some of
his claims against Special Agent McNeil, Mr. Widi’s new claims are at bottom the
same as the old ones that the Court considered in depth and dismissed. To reinitiate
dismissed claims would be an exercise in futility. Second, to the extent there are new
allegations (and Mr. Widi has not identified them if there are), it is much too late in
the disposition of this intractable action to start fresh, and Mr. Widi has given no
good reason for doing so. Third, Mr. Widi’s complaint about the Court’s September
24, 2013 Order is really a motion for reconsideration. Mr. Widi already filed a motion
for reconsideration of that Order, and the Court denied it. Mot. for Recons. and
Certificate for Appeal (ECF No. 180); Order Denying Pl.’s Mots. for Recons. of Orders
Granting Mot. to Dismiss to Paul McNeil and Mot. for Summ. J. to TD Bank (ECF
No. 213). Finally, there has to be a point in civil litigation where the disappointed
party accepts—for the time being—the rulings of the trial court and pins his hopes

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on the appellate court. For Mr. Widi, that moment has long since passed as regards
his claims against Special Agent Paul McNeil.
D.

Counts Three and Five: The Sniff Searches

In his Second Amended Complaint, Mr. Widi presented two Counts
complaining about law enforcement’s use of a drug detection dog on his company van,
first when it was parked in his driveway and next after it had been seized. Second
Am. Comp. ¶¶ 76-82, 92-98. In its Screening Order, the Court dismissed Counts
Three and Five by concluding that based on Supreme Court authority, law
enforcement was allowed to employ a drug detection dog without infringing on Mr.
Widi’s constitutional rights. Screening Order at 36-37.
Mr. Widi says the Court got it wrong. He cites Florida v. Jardines, 133 S. Ct.
1409, 1417-18 (2013) for the proposition that the use of drug detection dogs to search
the curtilage of a home violated the Fourth Amendment. Pl.’s Mot. for Recons. at 78. Next, he claims that to the extent the sniff search was conducted after law
enforcement had seized his van, it is “completely unreasonable to say that law
enforcement should be allowed to remove items from private property without a
warrant so that they can conduct a sniff search elsewhere.” Id. at 8. Citing Rodriguez
v. United States, 135 S. Ct. 1609 (2015), Mr. Widi observes that the Supreme Court
has not allowed law enforcement to hold a vehicle during a traffic stop to allow for
the retrieval of a drug detection dog, and Mr. Widi says that this principle should
disallow law enforcement’s removal of the van for the purpose of allowing a sniff
search. Pl.’s Mot. Recons. at 8.

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In his Second Amended Complaint, Mr. Widi alleged that law enforcement
executed a search warrant on his residence on November 28, 2008, Second Am.
Compl. ¶ 57, and that his company van was located in the private driveway of his
apartment. Id. ¶ 84-89. In Count Three, Mr. Widi alleged that while the search of
his apartment was taking place, law enforcement performed a sniff search of the van
and that it came back negative. Id. ¶ 77-78. Mr. Widi also alleged in Count Three
that this sniff search was illegal because it was not authorized by the search warrant.
Id. ¶ 80 (quoting United States v. Widi, 686 F. Supp. 2nd 107, 114 (D. Me. 2010)).
Then in Count Five, he claimed that after law enforcement illegally seized his van,
they conducted a second sniff search on November 30, 2008, which came back positive
this time.

Id. ¶ 94.

Mr. Widi asserted that this second sniff search was an

unconstitutional violation of his Fourth, Fifth, and Fourteenth Amendment rights.
Id. ¶ 97.
In its Screening Order, the Court dismissed Counts Three and Four on the
ground that law enforcement is allowed to use a drug sniffing dog to search cars and
luggage without violating the Fourth Amendment.

Screening Order at 36-37.

Turning first to Mr. Widi’s Florida v. Jardines objection, the Court views that case as
markedly different from what happened here. In Jardines, law enforcement brought
a drug sniffing dog onto a person’s porch without a warrant, and once the dog alerted,
the police obtained a warrant and searched the home. Jardines, 133 S. Ct. at 1413.
But here, the police had a warrant to enter onto Mr. Widi’s curtilage and to search

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his home.4 Unlike Jardines, the police in this case had a right to be where they were
when they brought the drug sniffing dog to the van parked in his driveway. The
search warrant makes this part of the search more like a legally-authorized traffic
stop than a privacy-violating porch snooping. See Illinois v. Caballes, 543 U.S. 405,
409 (2005). The Court dismisses Count Three.
As regards the November 30 sniffing, Mr. Widi’s complaint is not really with
the sniffing but with the seizure.5 What the Jardines Court says is that it matters
whether the police had a right to be where they were when the dog sniffed. If the van
seizure is illegal, then the police would not have had a right to have a dog sniff it—
they would in effect be on the Jardines’ porch. But if the van seizure is legal, the
police could use the sniffing dog—they would be in effect on the street doing a traffic
stop of Mr. Caballes. In short, the answer to the Count Five depends on Mr. Widi’s
challenge to the dismissal of Count Four: the van seizure count.
E.

Count Four and Six: The Van Seizure

In Counts Four and Six of his Second Amended Complaint, Mr. Widi claims
that a company called Widi Tile Company, LLC was the owner of a van parked in the
apartment of his driveway on November 28, 2008 and that the police unlawfully

Law enforcement had a search warrant in this case. However, as the van was apparently
parked in an area without any “indicia of privacy, such as an enclosure, barrier, or lack of visibility
from the street,” the First Circuit has held there is no “expectation of privacy in a driveway that is
exposed to the public.” United States v. Roccio, 981 F.2d 587, 591 (1st Cir. 1992). Indeed, “[i]f the
relevant part of the driveway is freely exposed to public view, it does not fall within the curtilage.”
United States v. Brown, 510 F.3d 57, 65 (1st Cir. 2007) (citations omitted).
5
Rodriquez is not determinative. If law enforcement had a right to seize the van, they had a
right to continue to seize it, at least for long enough to allow the dog sniff. If they did not have the
right to seize the van, they had no right to retain it for any period of time, including a period long
enough to allow the dog sniff.
4

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seized his “company van.” Second Am. Compl. ¶¶ 83-91, 99-104. One of the listed
plaintiffs in Mr. Widi’s Second Amended Complaint is Widi Tile Company, LLC. Id.
¶ 2. The Second Amended Complaint states that “at all times relevant to this
Complaint,” Widi Tile Company, LLC—of which Mr. Widi is “an owner and
operator”—“is mainly engaged in the business of ceramic tile and marble
installations.” Id. Noting that Mr. Widi alleged that Widi Tile Company was the
owner of the seized van, the Court observed that he was attempting to bring
constitutional claims on behalf of his company, and as he is not an attorney, he may
not represent a corporation, including a limited liability company. Screening Order
at 37-39.
In his motion for reconsideration, Mr. Widi attempts to change the allegations
in his Second Amended Complaint, stating that Widi Tile Company, LLC did not
really own the van, but he did personally. Pl.’s Mot. for Recons. at 9. Furthermore,
he now claims that he is the owner of Widi Tile Company, LLC and that he also did
business as a sole proprietor. Id. In general, he now maintains that Widi Tile
Company, LLC did commercial work and that he did residential work under his sole
proprietorship. Id.
The problem with his motion for reconsideration is that it is flatly contrary to
the allegations in his Second Amended Complaint regarding the “company van”:
“Widi Tile Company, LLC at all times relevant to this Complaint, is mainly engaged
in the business of ceramic tile and marble installations. Mr. Widi is an owner and
operator Widi Tile Company.”

Second Am. Compl. ¶ 2.

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The Second Amended

Complaint alleges that Mr. Widi is “an owner and operator,” id., whereas his motion
for reconsideration claims that he is also a sole proprietor and that “[t]he van in the
complaint was owned by Mr. Widi and was used by him to complete contracts for the
sole proprietorship.” Pl.’s Mot. for Recons. at 9.
Next, the Second Amended Complaint repeatedly describes the van as being
the “company van.” Id. ¶ 25 (“Curran submitted an application and affidavit to the
York County District Court to obtain a search warrant for Mr. Widi’s tile company
van . . . ”); ¶ 77 (“During the briefing the ATF, MDEA, EPD, and MSP defendants
made plans and agreed to have the MSP defendants enter Mr. Widi’s private property
during the execution of the search warrant to conduct a K-9 sniff on Mr. Widi’s tile
company van”); ¶ 78 (“During the search Curran had the MSP defendants conduct a
sniff of Mr. Widi’s tile company van at McNeil’s instruction, which came back
negative”); ¶ 79 (“The federal search warrant obtained by McNeil did not authorize
the search of Mr. Widi’s tile company van”); ¶ 84 (“During the briefing the ATF,
MDEA, EPD, and MSP defendants made plans and agreed to seize Mr. Widi’s tile
company van, even though it was not listed in the warrant”); ¶ 85 (“At the Eliot Police
Station, Cady attempted to get Mr. Widi’s consent to allow the ATF and members of
the search team to search his tile company van”); ¶ 91 (“Mr. Widi has also suffered
injuries through the seizure of his tile company van”); ¶ 93 (“At the briefing the ATF,
MDEA, EPD, and MSP defendants planned and agreed to unlawfully seize and search
Mr. Widi’s tile company van that was not included in the warrant”); ¶ 94 (“After the
seizure of Mr. Widi’s tile company van, . . . ); ¶ 95 (“The search of Mr. Widi’s tile

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company van . . . ”); ¶ 100 (“At the briefing the ATF, MDEA, EPD, and MSP
defendants planned and agreed to unlawfully search Mr. Widi’s tile company van . . .
”). To be fair to Mr. Widi, scattered within the Second Amended Complaint, he alleges
a few times that the van is his. Id. ¶ 33 (“Carr conducted a K-9 sniff of Mr. Widi’s
van during the search and again on November 30, 2008, at McNeil and Curran’s
[behest]”); ¶ 87 (“The search warrant did not authorize the seizure of Mr. Widi’s
van”).6 It is also true that he demanded damages for himself for the alleged violations
of Counts Four and Five. Id. at 64.
At this stage in the litigation, the Court is constrained. The First Circuit has
written that “[o]rdinarily, before dismissal for failure to state a claim is ordered, some
form of notice and an opportunity to cure the deficiencies in the complaint must be
afforded.” Brown, 511 Fed. Appx. at 5 (citations omitted). Still, the Court is deeply
skeptical.

The Court previously addressed a case in which Mr. Widi’s factual

allegations were so far from the truth as revealed in a videotape that the Court
dismissed his lawsuit. Widi v. U.S. DOJ, No. 1:11-cv-00113-JAW, 2013 U.S. Dist.
LEXIS 62269 (D. Me. May 1, 2013), aff’d No. 13-2112 (1st Cir. Oct. 20, 2015). Now,
more than three years from the filing of his Complaint and right after this Court
dismissed the Counts involving his van because the company, not he, owned the van,
Mr. Widi has just realized that he, not the company, owned the van all along. The
Court is very concerned that Mr. Widi is changing the facts to suit the law.

For all of the quoted passages in this paragraph, the Court has supplied the emphases where
they appear.
6

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Despite its significant reservations about the timing and content of Mr. Widi’s
representations, the Court will amend its earlier dismissal of Counts Four and Five
subject to the following:
(1) No later than thirty days after the date of this Order, Mr. Widi must
file a motion to amend his Second Amended Complaint to alter the
current allegations that Widi Tile Company, LLC was the owner of
the van that law enforcement searched and seized in November 2008
and to assert instead that he was the actual owner of the van.
(2) Before the Court will grant the motion to amend the Second
Amended Complaint, Mr. Widi must produce documentary proof that
he owned the van that was the subject of the search and seizure as
of November 2008. That proof must consist of copies of the certificate
of title to the van, the state of Maine registration of the van, and the
insurance certificate for the van—all confirming ownership in his
name, not the name of his company.
(3) In support of the motion, Mr. Widi must submit an affidavit,
declaring the contents of the motion are true and that the
documentary attachments are accurate.
If Mr. Widi produces satisfactory proof of the true ownership of the van, the Court
will grant the motion to amend the Second Amended Complaint and will vacate the
portion of the Screening Order that dismissed Counts Four and Five of the Second
Amended Complaint.

If he fails to satisfy the Court that the statements in his

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motion for reconsideration concerning the ownership of the van are true, the Court
will deny the motion and will consider whether to impose sanctions against Mr. Widi.
Finally, for Count Six, which contests law enforcement’s omission of the negative sniff
search of the van in the affidavit submitted in support of the search warrant to the
state court, the Court ruled in its Screening Order that Mr. Widi asserted
constitutional claims on behalf of his company and thereby dismissed the Count. The
Court will amend its earlier dismissal of Count Six subject to the same conditions it
has placed on Counts Four and Five.7
F.

Count VII: The Grey Trailer

The Second Amended Complaint contained a Count Seven, which alleged that
law enforcement searched his grey trailer. Second Am. Compl. ¶¶ 105-09. He says
that the grey trailer was not listed on the search warrant and that Judge Singal
determined that the search of the grey trailer was unauthorized by the warrant. Id.
¶¶ 106-07. The Second Amended Complaint names all twenty-four law enforcement
officers as participating in the illegal search. Id. ¶ 108. In its Screening Order, the
Court found that these allegations were so vague that they did not constitute a valid
claim, noting among other things that the Court would not know who among the
twenty-four law officer defendants actually searched the grey trailer and who should
be served with the lawsuit. Screening Order at 39.

To be clear, the Court has not reached the question of whether the contents of an affidavit in
support of a search warrant provide the basis for a § 1983 lawsuit. The Court’s disposition at this
point rests solely on whether Mr. Widi or his corporate business owned the van.
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Mr. Widi urges reconsideration, arguing that there are sufficient facts to allow
the claim to go forward. First, he claims that because Count Seven incorporated prior
allegations, the Court should have inferred that the search took place on November
28, 2008. Pl.’s Mot. for Recons. at 10. Mr. Widi acknowledged that the Court’s concern
about who performed the search “has some substance,” but he professes ignorance as
to who performed the search. Id. at 11.
First, Mr. Widi’s broad assertions about Judge Singal’s February 23, 2010
Order are inaccurate. Judge Singal’s opinion never mentioned a grey trailer; the only
vehicle referenced in the Order is the company van. See Widi, 686 F. Supp. 2d at 107115. Furthermore, although Judge Singal stated that the search warrant did not
authorize the search of any vehicles, the Court is unclear whether a trailer is a vehicle
within the meaning of Judge Singal’s Order. Id. at 114.
Second, the Court is not going to authorize suit against twenty-four officers
without some reason to believe that they were individually involved in the search
that Mr. Widi claims was illegal. The filing of a lawsuit against a defendant is not a
frivolous act. Mr. Widi is attempting to sue each of these officers in their individual
and official capacities, and once served, the officers will be required to obtain counsel,
to act to protect their own personal assets, to meet with defense counsel, and to
prepare a defense. The filing of a lawsuit and the service of a lawsuit affect police
officers’ reputations and divert the officers from their duties of public service. This is
one of the reasons Congress enacted 28 U.S.C. § 1915A; namely, to prevent
scattershot cases.

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It has now been more than three years since Mr. Widi initiated suit. It is past
time that he identify the people he is suing and why he is suing them. As with Counts
Four, Five, and Six, the Court will allow Mr. Widi thirty days to file a motion to amend
Count Seven to specify which officers he claims searched the so-called grey trailer
and to provide documentation substantiating his allegations. If he fails to do so
within thirty days of the date of this Order, the Court will deny his motion for
reconsideration on Count Seven.
G.

Counts Eight and Nine: Illegal Seizure of Neil Vaccaro’s
Motorcycle

In its Screening Order, the Court dismissed Counts Eight and Nine because
they spun such a strange and implausible tale that the Court determined they should
not proceed. Screening Order at 39 (noting the claims were “too fanciful to generate
a federal cause of action”). Mr. Widi objects, reasserting that law enforcement took
his collateral in order to “provide a quid pro quo payment to Vaccaro for his service
as a confidential informant” and indicating his claim that he held Neil Vaccaro’s
motorcycle as collateral for a $5,000 loan to Mr. Vaccaro is not on its face implausible.
Pl.’s Mot. for Recons. at 12.
Count Eight alleged that law enforcement unlawfully took a motorcycle located
on Mr. Widi’s property that was not included in the search warrant and that Mr. Widi
claimed he was holding as collateral for a $5,000 loan to a man named Neil B.
Vaccaro. Second Am. Complaint ¶¶ 110-19.
When combined with Count Eight, Count Nine presents a strange conspiracy
allegation.

Count Nine alleged that Mr. Vaccaro was acting as a confidential
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informant in the case against Mr. Widi and that ATF Special Agent McNeil agreed to
“give him the motorcycle with the condition that Mr. Vacarro say that the motorcycle
was stolen” and on the further condition that Mr. Vaccaro would say “Mr. Widi stole
the motorcycle.” Id. ¶ 121. To obtain the motorcycle, Count Nine alleged that Chief
Theodor Short instructed Eliot Police Officers Robert Brown and Matthew Raymond
to return to Mr. Widi’s property, enter his grey trailer, and observe the motorcycle
being loaded onto a flatbed. Id. ¶ 123. Count Nine also alleged that ATF Agent
McNeil “had Short and Curran seize the motorcycle because he claims he was told by
Vaccaro that Mr. Widi unlawfully possessed it.” Id. ¶ 124.
Count Nine then claimed that on December 4, 2008, Mr. Vaccaro contacted
Officer Andre Wassouf of the Portsmouth New Hampshire Police Department and
that Mr. Vaccaro told Officer Wassouf that “he needed a report stating Mr. Widi had
stolen his motorcycle so that he could gain possession of the motorcycle.” Id. ¶ 126.
Count Nine also claimed that Officer Wassouf “agreed to generate the false report”
and that Lieutenant Dante Puopolo of the Portsmouth Police Department “signed off
on the report as a supervisor knowing that it was false.” Id. Count Nine alleged that
during the search of Mr. Widi’s tile company van, Detective Kevin Curran of the Eliot
Police Department gave Mr. Vaccaro the motorcycle on instructions from ATF Special
Agent Paul McNeil and Eliot Chief of Police Theodore Short. Id. ¶ 128.
To knit this all together, Mr. Widi is alleging that an ATF Agent in Maine
conspired with a chief of police, a police detective, and two police officers for the town
of Eliot, Maine as well as a police officer and a police lieutenant for the city of

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Portsmouth, New Hampshire to steal a motorcycle from Mr. Widi and to give it to a
man named Neil Vaccaro, who agreed to falsely testify that Mr. Widi had stolen his
motorcycle in exchange for the stolen motorcycle. In effect, Mr. Widi is contending
that eight people, including seven police officers from three different agencies or
departments, engaged in a fairly elaborate conspiracy to frame him for a crime he did
not commit.

All of this is on Mr. Widi’s say-so alone.

The Court views these

allegations as the type of frivolous and malicious claims that Congress had in mind
when it enacted § 1915A. See Widi v. DOJ, 2013 U.S. Dist. LEXIS 62269, at *13-15.
As the Court is allowing Mr. Widi to supply information justifying other
Counts, the Court will do the same for Counts Eight and Nine, again within thirty
days of the date of this Order.

If Mr. Widi supplies documentary information

supporting his allegations, the Court will review his filings and reserve the right to
reinstate Counts Eight and Nine. However, based on its review of the allegations in
Counts Eight and Nine, the Court concludes that federal court is no place to spin out
wholly unsubstantiated conspiracy theories. If Mr. Widi fails to respond within thirty
days, the Court will deny his motion for reconsideration on Counts Eight and Nine.
H.

Count Ten: Defamation

The Court has reviewed Mr. Widi’s objections to its dismissal of Count Ten, the
defamation and libel count, and concludes that no further comment is necessary as
the Court adequately addressed his objections in its February 11, 2015 Order. See
Screening Order at 40-41.
I.

Count Thirteen: Unlawful Probation Search

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Mr. Widi again challenges the Court’s earlier conclusions about the legality of
whatever search Maine Probation Officers Denis R. Clark and Michael Lyon carried
out in November 2005. On April 21, 2014, the Court issued a twenty-page order
granting Probation Officers Clark and Lyons’ motion for summary judgment. Order
Granting the Renewed Mot. for Summ. J. by Defs. Clark and Lyon (ECF No. 236). On
May 12, 2014, Mr. Widi filed a motion for reconsideration; on July 25, 2014, he filed
a supplemental motion for reconsideration and a request for a discovery order; and
on August 14, 2014, Mr. Widi filed a second supplemental motion for reconsideration.
Pl.’s Mot. for Recons. of Order Granting Summ. J. to Defs. Clark and Lyon (ECF No.
242); Suppl. Mot. for Recons. under Fed. R. Civ. P. 59(e) and 60(b) with Accompanying
Req. for Disc. Order (ECF No. 246); Second Suppl. Mot. for Recons. under Fed. R. Civ.
P. 59(e) and 60(b) (ECF No. 248). On October 7, 2014, the Court issued a twentyeight page order, denying his motions for reconsideration. Order Denying Pl.’s Mots.
for Recons. (ECF No. 257).
When Mr. Widi filed his Second Amended Complaint on November 18, 2013,
the Court had not yet issued its orders on the viability of his claims against Probation
Officers Clark and Lyon. However, on May 4, 2015, Mr. Widi filed yet another motion
for reconsideration as to Count Thirteen. Pl.’s Mot. for Recons. at 16-18. The time to
challenge the Court’s rulings on Count Thirteen has long since passed and the
pending motion for reconsideration is not an appropriate vehicle for the Court to
revisit its April 21, 2014 Order.

The Court thoroughly examined the parties’

arguments concerning Mr. Widi’s claims against these officers and granted summary

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judgment in their favor. Mr. Widi has more than had his say about Count Thirteen,
and the Court has said all it is going to say about that Count as it applies to Probation
Officers Clark and Lyon.
J.

Count Seventeen: Right to Financial Privacy Act

In his motion for reconsideration, Mr. Widi correctly points out that the Court
did not address his claim against the Office of the United States Attorney (USAO) for
the District of Maine. Pl.’s Mot. for Recons. at 18-19. In Count Seventeen, Mr. Widi
says that because the USAO subpoenaed his financial records from TD Bank and
never presented them to the grand jury, he is entitled to sue the USAO for invasion
of his financial privacy. Second Am. Compl. ¶¶ 175-85. The Court concludes that
Mr. Widi’s claims against the USAO must fail because prosecutors are absolutely
immune from civil liability when performing activities “intimately associated with
the judicial phase of the criminal process.” Butz v. Economou, 438 U.S. 478, 510
(1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)); Goldstein v. Galvin,
719 F.3d 16, 24 (1st Cir. 2013) (quoting Bettencourt v. Bd. of Registration in Med. of.
Commonwealth of Mass., 904 F.2d 772, 782 (1st Cir. 1990)). Here, acknowledging
that he was the subject of a grand jury investigation, Mr. Widi has alleged that the
USAO acted in bad faith in the way it procured his financial records and in failing to
present those records to the grand jury. Second Am. Compl. ¶¶ 176-85. The actions
of the USAO fit squarely within activities intimately associated with the judicial
phase of the criminal process, and the USAO is absolutely immune from civil suit.
II.

MOTION FOR RELIEF UNDER FEDERAL RULE OF CIVIL
PROCEDURE 60
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On August 6, 2015, Mr. Widi filed a motion for relief under Rule 60 of the
Federal Rules of Civil Procedure, once again challenging the Court’s dispositive
rulings in favor of Probation Officers Clark and Lyon. Mot. for Relief under Fed. R.
Civ. P. 60 (ECF No. 311). Probation Officers Clark and Lyon responded on August
14, 2015. Opp’n to Mot. for Relief under F. R. Civ. P. Rule 60 (ECF NO. 314) (Defs.’
Opp’n). Mr. Widi replied on August 31, 2015. Reply to Defs.’ Opp’n to Mot. for Relief
Under Fed. R. Civ. P. 60 (ECF No. 319).
The Court agrees with the Defendants that Rule 60 does not provide a vehicle
for challenging the earlier summary judgment order. See Greene v. Unum Mut. Ins.
Co., 764 F.2d 19, 22 (1st Cir. 1985); Defs.’ Opp’n at 1. Instead, Mr. Widi’s motion is
properly seen as a motion for reconsideration. Defs.’ Opp’n at 1-2. As such, this is
Mr. Widi’s fourth motion for reconsideration of the Court’s summary judgment order
in favor of Probation Officers Clark and Lyon. Under First Circuit precedent, a court
should consider a motion for reconsideration under the “interest-of-justice” test.
United States v. Siciliano, 578 F.3d 61, 72 (1st Cir. 2009).
Here the interest of justice weighs strongly in favor of temporary finality. The
Court has done its best and has now written two exhaustive orders totaling fortyeight pages to explain its decision. See Order Granting the Renewed Mot. for Summ.
J. by Defs. Clark and Lyon (ECF No. 236); Order Denying Pl.’s Mots. for Recons. (ECF
No. 257). It is plain that Mr. Widi disagrees with the Court’s rulings and believes
them to be in error. Certainly this Court is not infallible, and Mr. Widi may be correct
that the Court of Appeals for the First Circuit will reverse the Court’s rulings. Time

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will tell. But more than eighteen months after the Court’s summary judgment ruling,
it is time for Mr. Widi to pursue those claims in this Court that the Court has found
viable and to save his arguments regarding the claims this Court has found nonviable for the First Circuit. If the First Circuit agrees with Mr. Widi, this Court will
accept its ruling and proceed accordingly. For now, the Court’s rulings stand.
III.

CONCLUSION
The Court DENIES Plaintiff’s Motion for Reconsideration (ECF No. 292) with

the following exceptions:
(1) If Mr. Widi elects to do so, he may file a motion to amend his Second
Amended Complaint within thirty days from the date of this Order;
(2) In the motion, he may move to amend Count Two as against Officer
Moya only; Counts Four, Five, and Six; Count Seven; and Counts
Eight and Nine;
(3) In making this motion, Mr. Widi must comply with the requirements
that the Court has imposed in this Order and failure to do so may
result in dismissal of all or part of the motion.
The Court DENIES Plaintiff’s Motion for Relief under Fed. R. Civ. P. 60 (ECF
No. 311).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR
UNITED STATES DISTRICT JUDGE
Dated this 8th day of December, 2015
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