WIDI v. MCNEIL et al

Filing 392

ORDER on Motion for Reconsideration - granting in part 198 Motion to Amend Complaint; granting in part and denying in part 351 Response to Order on Motion for Reconsideration and Motion Pursuant to Federal Rule of Civil Procedure 60 with Accompanying Documentary Evidence and Motion for Discovery; dismissing without prejudice 362 Motion for Issuance of Subpoena By JUDGE JOHN A. WOODCOCK, JR. (jwr)

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
In this long-pending lawsuit, the Court addresses the Plaintiff’s motion to be
allowed to proceed with numerous claims arising out of a law enforcement search and
seizure that took place at his residence on November 28, 2008. The Court allows
some of the claims to go forward against some defendants and rejects other claims
against other defendants.
I.

PROCEDURAL HISTORY
On February 11, 2015, the Court issued a forty-seven-page screening order in

which it granted David J. Widi, Jr.’s motion for leave to amend his complaint as to
certain counts and denied it as to others. Screening Order, Order Vacating in Part
Earlier Order Den. 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 Den. Mot. to Stay (ECF No. 270) (Screening Order).
On May 4, 2015, Mr. Widi filed a motion asking the Court to reconsider its screening
order. Mot. for Recons. (ECF No. 292) (Recons. Mot.). On December 8, 2015, the Court

issued an order denying Mr. Widi’s motion for reconsideration of its screening order.
Order on Mot. for Recons. and Mot. Pursuant to Fed. R. Civ. P. 60 (ECF No. 325)
(Recons. Order).

In that order, the Court required Mr. Widi to produce some

documentary evidence to support the allegations set forth in certain counts in his
Second Amended Complaint. Id. at 1.
On March 24, 2016, Mr. Widi responded to the Court’s order and filed a motion
asking the Court to reconsider its December 8, 2015 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) (Widi Mot.). The Defendant, Special Agent Paul McNeil, filed an opposition
on April 15, 2016. McNeil’s Opp’n to Pl.’s Resp. to Order on Mot. for Recons. (ECF No.
354) (McNeil Opp’n). On May 5, 2016, Mr. Widi filed a reply. Reply to McNeil’s Opp’n
to Pl.’s Resp. to Order on Mot. for Recons. (ECF No. 356) (Widi Reply).
The Court previously addressed two portions of Mr. Widi’s March 24, 2016
motion. On October 3, 2016, the Court refused to reinstate the dismissed claims
against Defendant Special Agent McNeil. Order Den. Mot. to Compel Disc. and Strike
(ECF No. 368). On November 21, 2016, the Court denied Mr. Widi’s demand for
recusal. Recusal Order (ECF No. 384). The Court now turns to the remainder of the
claims in Mr. Widi’s March 24, 2016 motion.
II.

BACKGROUND
A.

The February 11, 2015 Screening Order

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On February 11, 2015, the Court issued a screening order, addressing the
claims left unscreened by the Magistrate Judge’s July 13, 2012 screening order.
Screening Order. Mr. Widi’s First Amended Complaint contained fourteen counts
and named thirty-five defendants. First Am. Compl. (ECF No. 15). Mr. Widi’s Second
Amended Complaint contained eighteen counts and named fifty defendants. Second
Am. Compl. (ECF No. 191). In its February 11, 2015 order, the Court granted Mr.
Widi’s motion for leave to amend to file a second amended complaint regarding Count
Two (the Excessive Force Claim), Count Thirteen (the Unlawful Probation Search
claim) as against Detective Kevin Curran only, and Count Eighteen (the Freedom of
Information Act / Privacy Act claim) as against the Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF), the Executive Office of the United States Attorney,
and the Office of Information Policy. Screening Order at 46–47. However, the Court
did not allow Mr. Widi to proceed on a number of the counts in the proposed Second
Amended Complaint. Id. at 46.
B.

The Motion to Reconsider and Order on Motion to Reconsider

On May 4, 2015, Mr. Widi objected to the Court’s screening order. Recons. Mot.
On December 8, 2015, the Court declined to alter its screening order but allowed Mr.
Widi thirty days to move to amend his Second Amended Complaint as to certain
counts. Recons. Order at 1. However, worried that Mr. Widi was shifting the factual
allegations to respond to the Court’s rulings, the Court required him to produce
documentary evidence to support his newest allegations. Id. at 1, 25.
C.

The Motion to Reconsider the Order on the Motion to
Reconsider
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On March 24, 2016, Mr. Widi both objected to the Court’s December 8, 2015
reconsideration order and responded to the Court’s order for documentary evidence
supporting his newest allegations. Widi Mot. at 1–27. Mr. Widi’s first contention is
that in performing its screening review under 28 U.S.C. § 1915A, the Court erred in
imposing a summary judgment standard against him. Id. at 1–3. Mr. Widi next
objects to the Court’s analysis of Bailey v. United States, 133 S. Ct. 1031 (2013). Widi
Mot. at 3–5. Mr. Widi also objects to the Court’s conclusions about the timeliness of
his claims against Special Agent McNeil. Id. at 5–9. Mr. Widi responds to the Court’s
stated concerns about his allegations against Officer Moya of the EPD. Id. at 9–12.
He also explains his ownership of the van. Id. at 12–14. Next, he argues that the
search warrant in this case did not authorize a sniff search of the van. Id. at 14–16.
Mr. Widi turns to the grey trailer and explains why he contends the search was
impermissible. Id. at 16–18. Mr. Widi next addresses the seizure of the motorcycle
and why he contends the seizure was impermissible. Id. at 18–21. Mr. Widi then
reviews his defamation claim and argues that his allegations meet legal standards.
Id. at 21–23.

Mr. Widi reargues the Court’s order on the motion for summary

judgment in the probation search. Id. at 23–25. Finally, Mr. Widi contests the
Court’s ruling on prosecutorial immunity. Id. at 25–27.
D.

Special Agent McNeil’s Opposition

Special Agent McNeil opposed Mr. Widi’s motion for reconsideration. McNeil
Opp’n. First, Special Agent McNeil contends that Mr. Widi failed to comply with the
time deadlines of the Court’s rules and orders. Id. at 4–6. Next, Special Agent McNeil
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defends the Court’s decision to require Mr. Widi to present some documentary
evidence confirming the allegations in his second amended complaint. Id. at 6–10.
E.

David Widi’s Reply

On May 5, 2016, Mr. Widi filed a reply. Widi Reply. Mr. Widi reiterates his
arguments about the Court applying a summary judgment standard to his motion to
amend the complaint. Id. at 2–4. He then accuses Special Agent McNeil of twisting
facts and misleading the Court concerning the timeliness of his filings. Id. at 4–5.
Mr. Widi also addresses both the motorcycle and van counts. Id. at 5–8. Finally, he
turns to the Right to Financial Privacy count. Id. at 8–10.
III.

DISCUSSION
A.

Timeliness

In his objection, Special Agent McNeil argues that Mr. Widi’s motion for
reconsideration is untimely. McNeil Opp’n at 4–5. Mr. Widi replies that he has had
difficulty receiving his legal mail due to the policies of the Federal Correctional
Institute Pollock. Widi Reply at 4–5. The Court is aware that Mr. Widi, as well as
other inmates, have experienced difficulty obtaining legal mail sent to them by the
Clerk’s Office in the District of Maine because the name of the Clerk of Court did not
appear on the return address.1 Order Dismissing Mot. for Ct. Intervention and
Granting Mot. to Enlarge Time to File Resp. (ECF No. 227); United States v. Nóbrega,

As the Court noted in its April 7, 2014 order, the return address for mail from the Clerk’s Office
listed only that it was from the Clerk’s Office, and some federal correctional institutions interpreted
28 C.F.R. § 540.18(a) as requiring that a person’s name be identified in the return address. Order
Dismissing Mot. for Ct. Intervention and Granting Mot. to Enlarge Time to File Resp. at 1–3. As of
April 2014, however, the Clerk’s Office changed its practice and typed in the name of the Clerk of
Court for the District of Maine in the return address. Id. at 2–3. This change in practice seems to
have satisfied BOP requirements.
1

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No. 1:10-cr-00186-JAW, Order on Def.’s Mot. Concerning the Warden’s Mail Practices
(ECF No. 357). In light of this difficulty, the Court is unable to conclude that Mr.
Widi failed to timely comply with the deadlines because it is unclear when he actually
received the Court’s orders.
B.

Applying a Summary Judgment Standard to a Screening Order

The Court rejects Mr. Widi’s accusation that by requiring him to produce some
documentary evidence of his newest allegations, it is applying a summary judgment
standard to its screening authority under 28 U.S.C. § 1915A and his motion for leave
to amend under Federal Rule of Civil Procedure 15(a). The Court is doing nothing of
the kind. Instead, the Court is attempting to manage the litigation that Mr. Widi
filed on June 13, 2012, over three years ago—making it the second oldest civil case
assigned to this Judge—so that frivolous claims are ejected and only potentially
meritorious claims proceed.
More significantly, based in part on the Court’s past experience with Mr. Widi,2
the Court became concerned that Mr. Widi was tailoring his factual allegations to
meet the Court’s rulings.

The clearest example is his allegation concerning

ownership of his company van. In its February 11, 2015 screening order, the Court
observed that in his Second Amended Complaint, Mr. Widi listed Widi Tile Company

In 2013, the Court addressed another of Mr. Widi’s civil complaints against a host of
governmental defendants. Widi v. U.S. Dep’t of Justice, Civil Docket No. 1:11-cv-00113-JAW. Mr.
Widi made all manner of allegations against persons attempting to carry out an order of Judge George
Z. Singal. Fortunately, the activities of Mr. Widi and the Defendants were captured on videotape and,
once the Court viewed the videotape, it concluded that the “disparity between Mr. Widi’s allegations
and the actual contents of the disc are so extreme that the Court conclude[d] that allowing Mr. Widi
to proceed on his allegations would perpetuate a fiction and would only waste judicial time and
governmental resources.” Id., Order Dismissing Case (ECF No. 118). On October 20, 2015, the Court’s
dismissal was affirmed by the Court of Appeals for the First Circuit. Id., J. (ECF No. 134).
2

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LLC as a party plaintiff and had asserted claims on its behalf for an allegedly illegal
seizure of the company van. Screening Order at 37–39 (citing Second Am. Compl. at
25–26). In its screening order, the Court ruled that Mr. Widi could not proceed with
a claim on behalf of his incorporated business. Id. In response, Mr. Widi changed his
allegation to assert that he, not Widi Tile Company LLC, was the true owner of the
company van. Recons. Mot. at 9–10. The Court was naturally skeptical about this
change in allegation, and before allowing Mr. Widi to proceed with his newest
allegation of the ownership of the company van, the Court required Mr. Widi to
produce some documentary evidence as to the true owner. Recons. Order at 12–16.
As Mr. Widi had added new allegations to his other counts, the Court applied the
same principle to them as well, requiring him to produce some evidence beyond his
own say-so that the factual allegations were true. The Court is not convinced that it
should reconsider this part of its order on Mr. Widi’s motion to reconsider.
C.

United States v. Bailey

Mr. Widi also objects to the Court’s conclusions about whether Special Agent
McNeil was entitled to qualified immunity. Widi Mot. at 3–5. On September 23,
2013, the Court dismissed Mr. Widi’s claim against Special Agent McNeil on the basis
of qualified immunity, concluding that at the time of Mr. Widi’s arrest, the controlling
precedent from the United States Supreme Court allowed the arrest of occupants
incident to the execution of a search warrant. Order Den. Pl.’s Mot to Stay; Den. Pl.’s
Mot. to Strike; and Granting Def. McNeil’s Mot. to Dismiss at 13–14 (ECF No. 170).
In its February 11, 2015 screening order, the Court applied this same principle to

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other Defendants. Screening Order at 31–32. On May 4, 2015, Mr. Widi again
objected to the Court’s reasoning. Recons. Mot. at 1–4. On December 8, 2015, the
Court issued a third opinion on the issue of qualified immunity. Recons. Order at 2–
5. On March 24, 2016, Mr. Widi objected a third time to the Court’s ruling. Widi
Mot. at 3–5. For the reasons the Court has repeatedly explained, the Court rejects
Mr. Widi’s United States v. Bailey claim.
D.

Excessive Force Claim Against Elliot Police Officer Elliott Moya

In its reconsideration order of December 8, 2015, the Court allowed Mr. Widi
to amend his Second Amended Complaint if he could present the Court with roughly
contemporaneous evidence against Officer Elliott Moya that would provide a
foundation for his allegations. Recons. Order at 5–7. On March 24, 2016, Mr. Widi
submitted a memorandum with an appendix that he claims substantiates his
allegations of excessive force against Officer Moya, which is set forth in Count Two of
his Second Amended Complaint. Widi Mot. at 9–12. The Court has reviewed the
appendix and agrees that there is sufficient evidence to allow Mr. Widi to proceed
with his excessive force claim against Elliot Police Department Officer Elliott Moya.
The Court previously expressed its substantial reservations about a tight handcuff
claim, without more, as the basis of a lawsuit against the officer. Screening Order at
35 n.7. Nevertheless, based upon the current state of the law, Mr. Widi may proceed
against Officer Moya.
E.

Ownership of the Company Van

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In its reconsideration order, the Court allowed Mr. Widi to amend his Second
Amended Complaint if he could provide the Court with documentary evidence that
he, not Widi Tile Company LLC, was the owner of the van seized in November 2008.
Recons. Order at 12–17. The Court reviewed Mr. Widi’s appendix and agrees that he
has presented sufficient evidence for the Court to conclude for purposes of judicial
screening of his allegations that he was the owner of the seized van in November
2008.
F.

The First Sniff Search

In its screening and reconsideration orders, the Court addressed Counts Three,
Four, Five, and Six of the Second Amended Complaint. Screening Order at 36–39;
Recons. Order at 10–17. Count Three alleges that law enforcement engaged in an
illegal sniff search of his company van while they executed the November 28, 2008
search of his residence but that the sniff test came back negative. Second Am. Compl.
¶¶ 76–82. Count Four alleges that law enforcement seized the van by loading it on a
flatbed causing Mr. Widi to suffer business damages. Id. ¶¶ 83–91. Count Five
alleges that on November 30, 2008, law enforcement conducted a second sniff search
of the van, which came back positive. Id. ¶¶ 92–98. Count Six alleges that law
enforcement improperly obtained a search warrant of the van by omitting reference
to the first negative sniff. Id. ¶¶ 99–104. In its reconsideration order, the Court
stated that if Mr. Widi demonstrated that he, not Widi Tile Company LLC, owned the
van, it would reinstate Counts Four, Five and Six of the Second Amended Complaint.
Recons. Order at 16–17.

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This is not enough for Mr. Widi. He demands that the Court reinstate Count
Three, which alleged that law enforcement engaged in an illegal sniff search of the
van while executing the search warrant on November 28, 2008. Recons. Mot. at 14–
16. He points out that his van was parked in a parking lot behind his apartment
building and was not visible from the street. Id. at 15. Thus, he argues that his van
was located in a “constitutionally-protected area,” and the dog sniff violated his
Fourth Amendment rights under Florida v. Jardines, 133 S. Ct. 1409 (2013). Id. at
16.
The Court maintains substantial concerns about the viability of Count Three.
The Court accepts as a premise under United States v. Place, 462 U.S. 696 (1983) that
“a canine sniff is sui generis.” Id. at 707. As the Supreme Court explained in Place,
a “well-trained narcotics dog” not only does not require the object to be opened to
perform a sniff, but also “discloses only the presence or absence of narcotics, a
contraband item.” Id. Thus, the Place Court concluded that a canine sniff of luggage
in an airport “did not constitute a ‘search’ within the meaning of the Fourth
Amendment.” Id. Here, a canine sniff that revealed nothing about the contents of
Mr. Widi’s van falls generally under this principle.
In Jardines, the Supreme Court concluded that a canine sniff could constitute
a Fourth Amendment violation if the police without a warrant led the dog to the
homeowner’s front door and the dog alerted to the presence of drugs. 133 S. Ct. at
1415–16.

The focus of the Jardines Court was whether law enforcement could

undertake a warrantless search by entering onto the homeowner’s property and

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conducting a search without violating the Fourth Amendment.

One obvious

difference here is that the officers were executing a warrant, and they had a general
right to be where they were when they walked around Mr. Widi’s van with a trained
canine either because to perform the search they had to enter onto the property or
because the van was located in a part of the Widi lot that would not have required a
search warrant.
The Court is dubious about whether the van was truly within the curtilage of
the Widi home within the meaning of United States v. Dunn, 480 U.S. 294, 301 (1987)
and its progeny. Also, keeping in mind that Mr. Widi is complaining about a search
where the dog did not alert on anything inside the van, it is difficult to know exactly
what Mr. Widi could possibly gain by claiming damages from an uneventful dog sniff
wholly outside his van.
Nevertheless, the Court will relent and allow Count Three to proceed in this
case. A screening order under 28 U.S.C. § 1915A is an awkward place for the Court
to jettison a claim unless it is “patently meritless and beyond all hope of redemption.”
Brown v. Rhode Island, 511 Fed. Appx. 4, 5 (1st Cir. 2013). Here, Mr. Widi’s Count
Three remains on the extreme edge of futility, but it is better for the Court to address
the legal issues after defense counsel has entered an appearance, particularly since
Detective Curran will be represented in Counts Four, Five, and Six of the Second
Amended Complaint.
G.

The Van Seizure, the Second Sniff Search, and the Search
1.

The Allegations in Counts Four, Five, and Six of the
Second Amended Complaint
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In Count Four of the Second Amended Complaint, Mr. Widi says that during a
pre-search briefing, the ATF, the Maine Drug Enforcement Agency (MDEA), the town
of Eliot Police Department (EPD), and the Maine State Police (MSP) Defendants
“made plans and agreed to seize Mr. Widi’s tile company van, even though it was not
listed in the warrant.” Second Am. Compl. ¶ 84. He claims that while he was held
at the town of Eliot police station, Detective Kevin Cady of the EPD attempted to get
Mr. Widi to consent to a search of his company van, but Mr. Widi declined to give his
consent. Id. ¶ 85. Mr. Widi alleges that, despite the negative sniff, Special Agent
McNeil “directed the seizure of the van” and that Chief Theodore Short “requested
that [Officer Robert] Brown return to Mr. Widi’s residence, where [Detective Kevin]
Curran directed him to observe the van being loaded on a flatbed.” Id. ¶ 86. Mr. Widi
states that his company van contained his “company tools and business papers,
including contracts for tile jobs” and that the “seizure of the van prevented Mr. Widi
from completing his tile jobs.” Id. ¶¶ 87, 89. He seeks damages from being unable to
complete and enforce his tile contracts. Id. ¶ 91.
In Count Five, Mr. Widi again alleges that the ATF, MDEA, EPD, and MSP
Defendants planned to seize his tile company van even though it was not included in
the search warrant. Id. ¶ 93. He further states that Chief Short and Detective
Curran had Corporal Jerome Carr of the MSP “conduct a second sniff search on the
van at [Special Agent] McNeil’s direction on November 30, 2008, which now came
back positive.” Id. ¶ 94. Mr. Widi claims he suffered unspecified damages as a result
of this second sniff search. Id. ¶ 98.
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Finally, in Count Six, Mr. Widi says that Detective Curran submitted an
affidavit in support of a state search warrant to Judge O’Neill of the Maine District
Court in York, Maine, “per [Special Agent] McNeil and [Chief] Short’s instruction.”
Id. ¶ 101. However, he says Detective Curran, Chief Short, Special Agent McNeil,
ATF Agent Glenn Anderson, and ATF Resident Agent Dale Armstrong “agreed to
omit information regarding the negative sniff with intentional and reckless disregard
for the truth because that fact would have had an adverse [e]ffect on the
determination of probable cause.” Id. ¶ 102. Mr. Widi alleges unspecified damages.
Id. ¶ 104.
2.

Parties’ Positions

Although Mr. Widi responds to the Court’s concern as to whether he or his
company owned the company van, he does not anticipate the Court’s concern as to
who among all the law enforcement defendants was actually responsible for seizing
and searching the van. Widi Mot. at 12–16.
In his opposition, Special Agent McNeil argues that there is no evidence that
he was involved in the seizure and search of the company van. McNeil Opp’n at 10,
n.5. Special Agent McNeil points out that Judge George Singal’s February 23, 2010
order on Mr. Widi’s motion to suppress stated that “Agent McNeil arranged for the
van to be towed to the impound lot.” Id.; United States v. Widi, 2:09-cr-00009-GZS,
Order on Mot. [to] Suppress and Supp. Mot. to Suppress at 3 (ECF No. 136). On
March 1, 2010, however, the Government moved to correct the record to substitute
“Eliot Police [O]fficers” in place of Special Agent McNeil. Mot. to Correct Record at 1

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(ECF No. 147). On March 4, 2010, Mr. Widi through his counsel filed a notice that
he did not object to the Government’s motion to correct the record. Notice at 1 (ECF
No. 148). On March 4, 2010, Judge Singal struck Special Agent McNeil from the
suppression order and substituted Eliot Police Officers. Order on Mot. to Correct the
Record (ECF No. 149).
Mr. Widi replied by criticizing his criminal defense attorney, by claiming that
he had no opportunity to object to the motion to correct the record, and by saying that
it did not matter who had ordered the seizure and search in the criminal context.
Widi Reply at 8.
3.

Analysis

As with its prior order, the Court is reluctant to allow Mr. Widi to engage in a
scattershot complaint, naming law enforcement officers who may well have had
nothing to do with the seizure and search of the van. Specifically, the Court is not
convinced that Special Agent McNeil ordered its seizure; based on the representation
of the Assistant United States Attorney, the Court concludes that the officers of the
EPD were the ones who seized and searched the van.
Regarding the first canine sniff, which is the subject of Count Three, Mr. Widi’s
Second Amended Complaint mentions only one officer by name, Detective Curran,
other than dismissed Agent McNeil. Second Am Compl. ¶ 78.
As listed in Mr. Widi’s Second Amended Complaint, the police officers for the
town of Eliot involved in the van seizure were Chief Theodore Short, Second Am.
Compl. ¶ 18, Lieutenant Kevin Cady, id. ¶ 19, Officer Robert Brown, id. ¶ 20, and

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Detective Kevin Curran. Id. ¶ 25. The Second Amended Complaint does not allege
that other named Eliot police officers were involved in the seizure and search of the
van. Id. ¶ 21 (Officer Elliott Moya), ¶ 22 (Officer Adam C. Martin), ¶ 23 (Officer
Matthew Raymond). The Court will allow Mr. Widi to proceed against Detective
Curran on Count Three and Chief Short, Lieutenant Cady, Officer Brown, and
Detective Curran on Counts Four, Five, and Six.
H.

The Grey Trailer

In Count Seven of his Second Amended Complaint, Mr. Widi claims that a
number of law enforcement agencies held a briefing in which they “planned and
agreed to unlawfully search Mr. Widi’s grey trailer that was not listed on the federal
search warrant.” Second Am. Compl. ¶ 106. He also alleges that Judge Singal
determined that the search of the grey trailer was not authorized by the warrant. Id.
¶ 107. In its screening order, the Court noted that “[u]nlike his other counts, Mr.
Widi does not state when law enforcement searched his grey trailer, who among the
law enforcement officers searched his grey trailer, and what happened to the trailer
following the search.” Screening Order at 38. The Court concluded that “[s]uch vague
allegations do not permit the Court to authorize suit.” Id. Mr. Widi objected to the
Court’s order and urged reconsideration. Recons. Mot. at 10–11. The Court refused
to do so, but the Court allowed Mr. Widi to specify which officers he claimed actually
searched the grey trailer. Recons. Order at 19.
In his March 24, 2016 motion, after complaining that the delay in this lawsuit
has been caused by the Court and explaining that he was “not present” when the

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illegal search was conducted, Mr. Widi asserts that the Court may “reasonably infer”
that the decision to search his grey trailer was made by the twenty law enforcement
officers in the pre-search briefing meeting. Widi Mot. at 18. The Court disagrees and
will not allow Mr. Widi to maintain a lawsuit against twenty law enforcement officers
on the basis of such a speculative inference.
Lastly, Mr. Widi lists the officers he believes were actually involved in the
search of his grey trailer. Id. In his view, the officers were Officer Robert Brown,
Officer Matthew Raymond, Detective Kevin Curran, Eliot Police Chief Theodore
Short,3 Special Agent Paul McNeil, Special Agent Michael Grasso, and Special Agent
Stephen E. Hickey, Jr. Id.
According to Mr. Widi, his allegation against Detective Kevin Curran, Officer
Michael Brown, and Officer Matthew Raymond is based on the contention that
“Curran directed Brown and Raymond to observe the seizure of the ‘yellow HarleyDavidson motorcycle that was also inside’ the grey trailer.” Widi Mot. at 18. For this
proposition, Mr. Widi cites the testimony of Officer Brown. Id. (citing App. at A122).
The cited portion of the transcript reads:
When I was in the booking room[,] Officer Moya showed up and said that
Chief Short had requested me back at the—Mr. Widi’s residence. When
I got there[,] Detective Curran directed me to observe National Wrecker
loading Mr. Widi’s van onto a flatbed. I escorted the van to National
Wrecker, watched them offload it inside of their bay. At that point
Officer Matthew Raymond, he showed up. Myself and him secured the
vehicle with the evidence tape on all the doors and windows.

The Complaint and First Amended Complaint listed Theodore Strong as the Chief of the town
of Eliot Police Department. Compl. at 2, 13-14 (ECF No. 1); First Am. Compl. at 2, 13–14 (ECF No.
15). The Second Amended Complaint lists Theodore Short as the Chief of the Eliot Police Department.
Second Am. Compl. ¶ 18.
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I was requested to go back to Mr. Widi’s residence, escort the wrecker
back there, and when I arrived we was told there was a yellow HarleyDavidson motorcycle that was also inside—at Mr. Widi’s residence. And
I observed them load that onto the flatbed and drive it to their bay,
which is approximately a mile down the road, offload it, secure it with—
App. at A122:1–18.
As Officer Brown described his actions, they do not state a viable cause of
action against him. There is no evidence that Officer Brown actually searched the
grey trailer. He merely watched the wrecker company load the trailer onto a flatbed,
and he escorted the wrecker with the motorcycle to the wrecker company’s lot. Mr.
Widi’s allegations do not amount to a cognizable cause of action against Officer
Brown.
The allegations against Officer Raymond are even more attenuated. Although
Mr. Widi says that Officer Raymond observed the seizure of the motorcycle, Officer
Brown testified that Officer Raymond joined him at the wrecker lot and assisted him
in placing evidence tape around the company van. App. at A122:7–10. Officer Brown
did not testify that Officer Raymond went with him back to the Widi residence. Id.
at A122:11–16 (“I was requested to go back to Mr. Widi’s residence, escort the wrecker
back there, and when I arrived, we was told there was a yellow Harley-Davidson
motorcycle that was also inside—at Mr. Widi’s residence. And I observed them load
that onto the flatbed…”). Contrary to Mr. Widi’s representation, Officer Brown did
not say that Officer Raymond was present at the Widi residence when the motorcycle
was found or loaded onto the flatbed. Mr. Widi has not produced sufficient evidence
to proceed with his claim against Officer Matthew Raymond.

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Mr. Widi’s allegation against Detective Curran is that he “directed Brown and
Raymond to observe the seizure” of the motorcycle. Widi Mot. at 18. If Mr. Widi’s
allegations against Officers Brown and Raymond are insufficient, his claim against
Detective Curran must fail, too.
Mr. Widi’s allegation against Chief Short is that he “directed Brown to return
to Mr. Widi’s residence where Curran directed Brown and Raymond to observe the
seizure of the ‘yellow Harley-Davidson motorcycle that was also inside’ the grey
trailer.” Id. The fact that Chief Short ordered one of his officers to return to the Widi
residence does not implicate the Chief in the search of the grey trailer. In fact, Mr.
Widi expressly claims that it was Detective Curran, not Chief Short, who ordered
Officer Brown and Officer Raymond to “observe the seizure of the” Harley-Davidson
from the grey trailer. Id. Mr. Widi’s allegation against Chief Short is insufficient to
implead him in Mr. Widi’s lawsuit.
Finally, on October 3, 2016, the Court addressed and rejected Mr. Widi’s
attempt to reinitiate the dismissed claims against Special Agent Paul McNeil. Order
Den. Mot. to Compel Disc. and Strike (ECF No. 368). In addition, however, Mr. Widi’s
sole allegation against Special Agent McNeil is that he was “also present when the
motorcycle was impounded.” Widi Mot. at 18. In its September 24, 2013 order
granting Special Agent McNeil’s motion to dismiss, this Court quoted the First
Circuit Court of Appeals in Calvi v. Knox County, 470 F.3d 422, 428 (1st Cir. 2006)
as stating that the “mere presence” of an officer at a scene “without more, does not by
some mysterious alchemy render him legally responsible under [42 U.S.C. § 1983] for

18

the actions of a fellow officer.” Order Den. Pl.’s Mot. to Stay; Den. Pl.’s Mot. to Strike;
and Granting Def. McNeil’s Mot. to Dismiss at 20 (ECF No. 170). In his pending
motion, Mr. Widi has done no more than allege that Special Agent McNeil was
present at what Mr. Widi contends was an illegal seizure. This is not, as a matter of
law, sufficient to reinitiate his lawsuit against Special Agent McNeil.
This leaves Mr. Widi’s allegations against Special Agent Michael Grasso and
Special Agent Stephen E. Hickey, Jr. Mr. Widi’s allegations against Special Agents
Grasso and Hickey are based on the fact that their names appear on a Photo Log,
which lists “Grasso” for Photo 20 as the person who found the evidence, names the
location of the photograph as the “Utility Trailer w/ Harley,” and lists Stephen Hickey
as the photographer. Id., Attach. 2, App. at A32 (App.). Mr. Widi alleges in his motion
that this means that Special Agent Grasso found the utility trailer with the
motorcycle inside, and Special Agent Hickey took photographs of it. Widi Mot. at 18.
Mr. Widi attached Photograph 20, which shows an enclosed trailer with the door open
and a motorcycle inside. App. at A39.
Mr. Widi’s evidence against Special Agents Grasso and Hickey is thin.
However, there is at least some documentation that, if true, indicates that Special
Agent Grasso found the motorcycle listed in the grey trailer and that Special Agent
Hickey took a photograph of its contents. As Mr. Widi points out, the search warrant
in this case did not authorize a search of the grey trailer, and the First Circuit makes
clear that “[t]he authority to search conferred by a warrant is circumscribed by the
particular places delineated in the warrant and does not extend to other or different

19

places.” United States v. Fagan, 577 F.3d 10, 13 (1st Cir. 2009) (citing United States
v. Bonner, 808 F.2d 864, 868 (1st Cir. 1986)).
A search occurs when the government “physically occupie[s] private property
for the purpose of obtaining information.” United States v. Jones, 132 S. Ct. 945, 949
(2012). Likewise, a search occurs when the government violates an individual’s
subjective expectation of privacy that “society recognizes as reasonable.” Kyllo v.
United States, 533 U.S. 27, 33 (citing Katz v. United States, 389 U.S. 347, 361 (1967)
(Harlan, J., concurring). It appears that the agents opened the enclosed trailer and
inspected its contents as part of their wider search for contraband in the apartment
and the nearby sheds. Mr. Widi conceivably had a subjective expectation of privacy
in his trailer that was objectively reasonable. By opening the trailer and inspecting
and photographing its contents without a warrant, Special Agents Grasso and Hickey
arguably conducted a search that violated Mr. Widi’s rights under the Fourth
Amendment. Therefore, the Court will allow Mr. Widi to proceed against Special
Agent Michael Grasso and Special Agent Stephen Hickey, Jr.
I.

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 that the claims were “too fanciful to
generate a federal cause of action”). Counts Eight and Nine allege that during the
morning of November 28, 2008, the ATF, MDEA, EPD, and MSP held a pre-search
meeting to discuss the warranted search of Mr. Widi’s residence. Second Am. Compl.

20

¶ 111. Mr. Widi alleges that Neil Vaccaro was the owner of a motorcycle in the grey
trailer and that Mr. Widi was holding the motorcycle as collateral for a $5000 loan
that Mr. Widi had extended to Mr. Vaccaro. Id. ¶¶ 111, 117. Mr. Widi claims that
before the search, these law enforcement agencies conspired with Mr. Vaccaro to seize
his motorcycle, even though it was not listed in the warrant. Id. ¶¶ 111, 121. Mr.
Widi alleges that Mr. Vaccaro was acting as a confidential informant for Special
Agent McNeil against Mr. Widi, and that Mr. Vaccaro approached Special Agent
McNeil and suggested to Special Agent McNeil that the police agree to return the
motorcycle to Mr. Vaccaro in exchange for Mr. Vaccaro’s assistance to law
enforcement against Mr. Widi. Id. ¶ 121. Mr. Widi claims that Special Agent McNeil
agreed to give Mr. Vaccaro the motorcycle so long as Mr. Vaccaro claimed that Mr.
Widi had stolen it. Id.
During the search of the Widi residence, Mr. Widi says Special Agent McNeil
directed Eliot Police Chief Short and Detective Curran to seize the Vaccaro
motorcycle. Id. at 124. Mr. Widi alleges that Chief Short ordered Officers Brown and
Raymond back to the Widi residence where Detective Curran instructed them to
observe the motorcycle being loaded onto the flatbed. Id. ¶¶ 123–24.
Mr. Widi claims that on December 4, 2008, six days after the November 28,
2008 search, Mr. Vaccaro contacted the Portsmouth, New Hampshire Police
Department and spoke to Officer Andre Wassouf. Id. ¶ 126. Mr. Vaccaro supposedly
told Officer Wassouf that he needed a report stating that Mr. Widi had stolen his
motorcycle so that Mr. Vaccaro could regain possession of it. Id. Mr. Widi claims

21

that Officer “Wassouf agreed to generate the false report” and to have Lieutenant
Dante Puopolo of the Portsmouth Police Department sign off on the report as a
supervisor, even though Lieutenant Puopolo knew the report was false. Id.
Mr. Widi points out that he was never charged with theft of the motorcycle or
receiving stolen property, nor were any other proceedings initiated to dispossess him
of the motorcycle. Id. ¶ 127. He says that the police violated his constitutional rights
and deprived him of collateral for his $5000 loan to Mr. Vaccaro. Id. ¶ 130.
In its December 8, 2015 order, the Court wrote:
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 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 sayso 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.
Recons. Order at 20–21. Consistent with First Circuit authority, however, the Court
allowed Mr. Widi to provide proof of these allegations to allow them to go forward.
Id. at 21; see Brown, 511 Fed. Appx. at 5.
In his latest motion to reconsider, Mr. Widi refers to the appendix to support
his allegations. Widi Mot. at 19–21. To support his assertion that Mr. Vaccaro had
given him the motorcycle as collateral for the $5000 loan, Mr. Widi cites his own
testimony. Id. at 19 (citing App. at 137–38). Mr. Widi also points to his sworn

22

declaration that he heard Special Agent McNeil direct Officer Curran to seize the
motorcycle. Id. (citing Statement of Opposing Material Facts, Attach. 1, Decl. of David
J. Widi, Jr. Regarding S/A Paul McNeil ¶ 6) (ECF 103). He also cites his own
testimony to support his contention that Mr. Vaccaro had told Mr. Widi’s brother—
Billy Widi—that federal agents had told Mr. Vaccaro that if he did not claim that Mr.
Widi had stolen the motorcycle, they would seize it as drug proceeds. Id. at 20 (citing
Widi Mot., Attach. 1, Decl. of David J. Widi Jr. in Resp. to Order on Mot. for Recons.
and Mot. Pursuant to Fed. R. Civ. P. 60 ¶ 4 (ECF 351)).
Mr. Widi also points out that Officer Wassouf of the Portsmouth Police
Department did not interview Mr. Vaccaro about the stolen motorcycle until
December 4, 2008, six days after the motorcycle was seized. Id. at 20 (citing App. at
73). Mr. Widi also finds it strange that Mr. Vaccaro waited from November 25, 2008,
when the motorcycle went missing, to December 4, 2008, to report it missing. Id.
The Court is not convinced. Law enforcement seized the motorcycle on Friday,
November 28, 2008, the day after Thanksgiving. Given that the Portsmouth Police
Department was not involved in the November 28, 2008 search, the Court views it
unremarkable that it would take six days for the two police departments to
communicate and resolve how Mr. Vaccaro’s motorcycle ended up in Mr. Widi’s grey
trailer. Mr. Vaccaro’s statement that he thought Mr. Widi had taken his motorcycle,
but he was not sure, is also unremarkable, because it is undisputed that Mr. Widi

23

had stored Mr. Vaccaro’s motorcycle out of sight in Mr. Widi’s grey trailer when the
November 28, 2008 search took place.4
Nor is there any evidence that the police ever completed the supposed object of
the asserted conspiracy. Mr. Widi proposes that Special Agent McNeil told Mr.
Vaccaro that Mr. Vaccaro claimed that Mr. Widi had stolen the motorcycle, the police
would give him the motorcycle. Second Am. Compl. ¶ 121. Yet Mr. Widi admits that
he was never charged with stealing the motorcycle. Id. ¶ 127. Thus, from Mr. Widi’s
viewpoint, the object of this extensive conspiracy among several police departments
was to bring a false charge of theft against Mr. Widi by coopting Mr. Vaccaro. But
having successfully coopted Mr. Vaccaro and having risked their professional careers
by manufacturing evidence against Mr. Widi, the police decided against pressing the
theft charge against Mr. Widi.
Nor was Mr. Vaccaro useful as a witness in the federal charges. According to
the witness list at Mr. Widi’s trial for possession of firearms and ammunition by a
felon and for manufacturing marijuana, Mr. Vaccaro was never called as a witness
by either the Government or by Mr. Widi. United States v. Widi, 2:09-cr-9-GZS,
Witness List at 1 (ECF No. 208).

The police report reads: “Neil [Vaccaro] stated that he thought Mr. David Widi took it without
his permission but he was not sure.” App. at 74. To the extent that Mr. Widi is claiming that the
phrasing in the police report means that Mr. Vaccaro was sure that David Widi took his motorcycle
but was not sure whether Mr. Widi took it without his permission, the Court is dubious. Mr. Vaccaro
would have known whether he gave Mr. Widi permission to take his motorcycle, and the police
returned the motorcycle to Mr. Vaccaro on December 4, 2008, which would have been odd if Mr.
Vaccaro had given Mr. Widi permission to take it. The Court interprets Officer Wassouf’s report to
mean (1) that Mr. Vaccaro had last seen his motorcycle on November 25, 2008 at 6:00 a.m., (2) that he
suspected David Widi had taken it, and (3) Mr. Vaccaro had not given Mr. Widi permission to take it.
4

24

None of Mr. Widi’s repeated contentions or suggested inferences supports his
grand conspiracy theory. Rather, it appears to the Court that the police entered Mr.
Widi’s enclosed trailer without a warrant during the November 28, 2008 search and
discovered a stolen motorcycle, which they returned to its rightful owner. Because
the Court concludes that the motorcycle was stolen, Mr. Widi does not have standing
to bring a claim with respect to the seizure of the motorcycle. An individual asserting
that a seizure violated the Fourth Amendment must have a possessory interest in the
item seized. Accord United States v. Jeffers, 342 U.S. 48, 52 (1951) (“The respondent
unquestionably had standing to object to the seizure made without warrant or arrest
unless the contraband nature of the narcotics seized precluded his assertion, for
purposes of the exclusionary rule, of a property interest therein). Here, Mr. Widi had
no right to possess the motorcycle owned by Mr. Vaccaro located in the trailer.
Accordingly, Mr. Widi may not bring a civil rights claim against the officers to
vindicate a right that he did not have.
Although Mr. Widi puts a bizarre spin on these facts in which he alleges a
conspiracy among the rightful owner of the motorcycle and the numerous police
officers across several departments, the Court concludes, once again, that his theories
of liability are fanciful and that this part of Mr. Widi’s lawsuit should not be allowed
to go forward.
J.

The Defamation Count

Count Ten of Mr. Widi’s Second Amended Complaint alleges that a number of
the Defendants defamed him. Second Am. Compl. ¶¶ 131–43. In his pending motion,

25

Mr. Widi demands that the Court revisit its ruling concerning the viability of Count
Ten based on his conspiracy allegations regarding Mr. Vaccaro’s motorcycle. Widi
Mot. at 21–23. As the Court has determined that Mr. Widi’s conspiracy allegations
about Mr. Vaccaro’s motorcycle should not go forward, the defamation count falls of
its own weight.
K.

Probation Search

In its December 8, 2015 order, the Court refused to revisit its April 21, 2014
order granting summary judgment to Maine Probation Officers Denis R. Clark and
Michael Lyons. Recons. Order at 21–23. After the Court issued its April 21, 2014
order, Mr. Widi filed a motion for reconsideration on May 12, 2014; a supplemental
motion for reconsideration and a request for a discovery order on July 25, 2014; and
a second supplemental motion for reconsideration on August 14, 2014; all of which
the Court denied on October 7, 2014. 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. (ECF No. 246); Second Suppl. Mot.
for Recons. Under Fed. R. Civ. P. 59(e) and 60(b) (ECF No. 248); Order Den. Pl.’s Mots.
for Recons. (ECF No. 257). Mr. Widi’s May 4, 2015 motion for reconsideration was,
in effect, a motion to reconsider the Court’s denial of his multiple motions for
reconsideration of its April 21, 2014 order.

Because the second reconsideration

motion was untimely, on December 8, 2015, the Court declined to rule on Mr. Widi’s
May 4, 2015 motion for reconsideration. Recons. Order at 22–23. Mr. Widi’s third
motion for reconsideration fares no better.

26

As the Court wrote on December 8, 2015, the Court has said “all it is going to
say about that Count as it applies to Probation Officers Clark and Lyon.” Recons.
Order at 23. Indeed, in its December 8, 2015 order, the Court noted that it had “done
its best and has now written two exhaustive orders totaling forty-eight pages to
explain its decision.” Id. at 24. The Court readily acknowledged that it is hardly
infallible, which is precisely why there is an appeals court, and it advised Mr. Widi
that his recourse must be with the First Circuit. Id. at 24–25. The Court wrote that
“[i]f the First Circuit agrees with Mr. Widi, this Court will accept its ruling and
proceed accordingly.” Id. at 25.
Despite this admonition, Mr. Widi filed yet another motion for the Court to
reconsider its order. If Mr. Widi were represented by counsel, if the lawyer had filed
four motions to reconsider an order, if the Court had informed the lawyer that his
recourse must be with the First Circuit, and if the lawyer had filed a fifth motion, the
Court would have demanded that counsel explain why sanctions should not issue.
Despite the fact that Mr. Widi is representing himself, the Court expressly warns him
not to file another motion to reconsider the Court’s order on the Clark/Lyon summary
judgment order. If he does, the Court will impose a suitable sanction.
L.

Right to Financial Privacy Act

Mr. Widi objects to the Court’s conclusion that his claim against the Office of
the United States Attorney (USAO) under the Right to Financial Privacy Act (“the
RFPA”), 12 U.S.C. § 3417(a), is barred by absolute immunity. Widi Mot. at 25–27;
Recons. Order at 23. He asserts that his claim is “not against the prosecutor in her

27

individual capacity but is rather against [the USAO as an] ‘agency or department of
the United States’ for which the United States has assumed liability.” Widi Mot. at
26.

Mr. Widi argues that the RFPA constitutes a waiver of the United States’

sovereign immunity, and therefore his claim against the USAO may proceed.
The RFPA states that “[a]ny agency or department of the United
States…disclosing financial records or information contained therein in violation of
this chapter is liable to the customer to whom such records relate…” 12 U.S.C. §
3417(a). As an initial matter, the RFPA authorizes suits against “agenc[ies] or
department[s] of the United States,” not against individual agents or employees. See
Liffiton v. Keuker, 850 F.2d 73, 78 (2d Cir. 1988). Consequently, Mr. Widi is barred
from asserting any claims against individual prosecutors at the USAO under the
RFPA.
Under the principal of sovereign immunity, Mr. Widi may not maintain an
action against the USAO unless federal legislation specifically authorizes the suit.
“[A] waiver of sovereign immunity must be ‘unequivocally expressed’ in the statutory
text.” F.A.A. v. Cooper, 132 S. Ct. 1441, 1448 (2012) (quoting Lane v. Peña, 518 U.S.
187, 192 (1996)). Under the RFPA, agencies and departments of the United States
are liable if they “disclos[e] financial records or information” in violation of the
statute. 12 U.S.C. § 3417(a). The individual to whom the records relate may bring
an action to enforce the provisions of the RFPA “in any appropriate United States
district court without regard to the amount in controversy within three years from
the date on which the violation occurs or the date of discovery of such violation,

28

whichever is later.” 12 U.S.C. § 3416. Based on this statutory language, the Court
concludes that the RFPA “unequivocally expresse[s]” a waiver of sovereign immunity.
Id.; see also Raikos v. Bloomfield State Bank, 703 F. Supp. 1365, 1367 (S.D. Ind. 1989)
(“By allowing recovery from…the government agency to whom disclosure is made,
[the RFPA] operates as a limited waiver of sovereign immunity that otherwise
prevents suits against the United States”). Therefore, Mr. Widi may assert a claim
under the RFPA against the USAO.
Mr. Widi may or may not be correct when he alleges that his financial records
were never actually presented to the grand jury. Id. In light of the substantial
protections against the disclosure of what occurred during the grand jury proceeding,
it would be exceedingly odd that the federal prosecutors shared with Mr. Widi all of
the evidence they presented the grand jury.5 As he went to trial, and as he attached
transcripts of some of the grand jury testimony, Mr. Widi was presumably allowed to
review the so-called Brady or Jencks Act material generated in the grand jury
proceedings. See Brady v. Maryland, 373 U.S. 83, 87 (1963); 18 U.S.C. § 3500. But
these disclosure typically do not involve all evidence that was before the grand jury.

5

For example, to obtain transcripts of a grand jury proceeding, the movant must demonstrate
that his desire for the transcript is justified by a “particularized need” that “outweighs the public
interest in secrecy.” Douglas Oil Co. of Cal. v. Petrol Stops Northwest, 441 U.S. 211, 222–23 (1979).
Elsewhere, the Supreme Court has written that the “‘indispensable secrecy of grand jury
proceedings’…must not be broken except where there is a compelling necessity.” Procter & Gamble,
356 U.S. 677, 682 (1958) (quoting United States v. Johnson, 319 U.S. 503, 513 (1943)). Consistent with
these principles, Federal Rule of Criminal Procedure 6(e) “codifies the traditional practice of grand
jury secrecy. With specified exceptions, it prohibits grand jurors, interpreters, stenographers,
operators of recording devices, typists, government attorneys, or any person to whom disclosure is
made under paragraph (3)(A)(ii) from disclosing ‘matters before the grand jury.’” In re Grand Jury
Proceedings, Miller Brewing Co., 687 F.2d 1079, 1088 (7th Cir. 1982). In fact, individuals who violate
the secrecy of grand jury proceedings may be subject to criminal prosecution under 18 U.S.C. § 1503.
In re Grand Jury Proceedings, 814 F.2d 61, 70 (1st Cir. 1987).

29

Instead, to make this argument, Mr. Widi appears to be relying on the timing
of the indictment in his case—January 6, 2009—United States v. Widi, 2:09-cr-00009GZS, Indictment (ECF No. 14), and the date of the subpoena for his financial
records—January 20, 2009. Mot. for Recons. of Summ. J. for TD Bank, Attach. 1,
Subpoena to Test. before Grand Jury (ECF No. 174). He contends that the financial
records could not have been presented to the grand jury that indicted him because
the subpoena came after the indictment. Widi Reply at 8–10. But Mr. Widi discounts
the fact that on February 24, 2010, the grand jury issued a superseding indictment
against him.

United States v. Widi, 2:09-cr-00009-GZS, Superseding Indictment

(ECF No. 137). It is clear that the grand jury convened and received evidence after
it had issued the original indictment. The Court does not accept Mr. Widi’s timing
argument.
Nevertheless, in light of the contents of the Executive Office of the United
States Attorneys’ renewed motion for summary judgment on Count Eighteen, it may
well be that the Office of the United States Attorney for the District of Maine will be
able to provide a straightforward explanation for why the federal prosecutor
subpoenaed Mr. Widi’s financial records from TD Bank, whether they were actually
presented to the grand jury, and if not, what use was made of them. See EOUSA’s
Renewed Mot. for Summ. J. on Count XVIII (ECF No. 366). With some serious
misgivings, the Court will allow Mr. Widi to proceed with Count Seventeen, the Right
to Financial Privacy Act claim, against the Office of the United States Attorney for
the District of Maine.

30

M.

Requests for Discovery

In his motion, Mr. Widi requested that the Court authorize him to engage in
discovery to supply the evidence the Court is requiring. Widi Mot. at 27. Also, on
August 19, 2016, Mr. Widi moved for leave to issue a subpoena duces tecum to the
town of Eliot. Mot. for Subpoena Duces Tecum to Town of Eliot (ECF No. 362).
The Court DISMISSES without prejudice this part of Mr. Widi’s request for
relief in his motion for reconsideration and it DISMISSES without prejudice Mr.
Widi’s motion for subpoena duces tecum. The Court has allowed some of these claims
to go forward and has ruled against other claims. For those claims the Court has
declined to allow to proceed, it is not a matter of facts, it is a matter of law that
motivates the Court’s rulings. For those claims the Court has allowed to proceed, the
parties will be allowed to engage in discovery in the ordinary course.
IV.

CONCLUSION
The Court GRANTS in part and DENIES in part David J. Widi, Jr.’s Response

to Order on Motion for Reconsideration and Motion Pursuant to Federal Rule of Civil
Procedure 60 with Accompanying Documentary Evidence and Motion for Discovery
(ECF No. 351).
The Court concludes that David J. Widi, Jr. had stated a potential claim in
Count Two of the Second Amended Complaint against Officer Elliott Moya of the EPD
for excessive use of force involving the application of handcuffs; a potential claim
against Detective Kevin Curran in Count Three of the Second Amended Complaint
for unlawful search of the van; potential claims against Chief Theodore Short,

31

Lieutenant Kevin Cady, Officer Robert Brown, and Detective Kevin Curran in Counts
Four, Five, and Six of the Second Amended Complaint for unlawful seizure and
search of the van; a potential claim in Count Seven of the Second Amended Complaint
against Special Agent Michael Grasso and Special Agent Stephen Hickey, Jr. for an
unwarranted search of the grey trailer; and a potential claim against the United
States Attorney’s Office for the District of Maine in Count Seventeen of the Second
Amended Complaint. The Court thus GRANTS in part David J. Widi’s Motion for
Leave to Amend Complaint (ECF No. 198).
The Court instructs the Clerk’s Office to prepare the required documents for
service of the Second Amended Complaint against Elliott Moya, Theodore Short,
Michael Grasso, Stephen Hickey, Jr., and the United States Attorney’s Office for the
District of Maine. Kevin Curran, Robert Brown, and Kevin Cady are currently
represented Defendants in this case; Def. Kevin Curran’s Answer to Second Am.
Compl. (ECF No. 278); Answer, Affirmative Defenses and Jury Trial Demand (Def.
Robert Brown) (ECF No. 291); Answer, Affirmative Defenses and Jury Trial Demand
(Def. Kevin Cady) (ECF No. 297). Defendants Curran, Brown and Cady are ordered
to answer the Second Amended Complaint with its newly-permitted allegations in
accordance with the time limits provided in the Federal Rules of Civil Procedure.
The Court otherwise DENIES David J. Widi, Jr.’s Motion for Reconsideration
and Motion Pursuant to Federal Rule of Civil Procedure 60 with Accompanying
Documentary Evidence and Motion for Discovery (ECF No. 351).

32

The Court

DISMISSES without prejudice David J. Widi, Jr.’s Motion for Subpoena Duces Tecum
to Town of Eliot (ECF 362).
SO ORDERED.
/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 10th day of January, 2017

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