Bethea v. Plusch et al
Filing
29
OPINION and ORDER granting 13 , 20 and 21 Defendants' Motions to Dismiss and denying 18 Plaintiff's Motion to Amend. Any appeal taken in forma pauperis from this Order would not be taken in good faith because such an appeal would be frivolous. Signed by District Judge J. Garvan Murtha on 11/29/2011. (kak)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Craig Bethea,
Plaintiff,
v.
Michael Plusch, William
Wright, Nancy Corsones,
Bennington County, State
of Vermont, and United
States of America,
Defendants.
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Case No. 1:11-cv-57-jgm
OPINION AND ORDER
(Docs. 13, 18, 20 and 21)
Plaintiff Craig Bethea, a federal inmate proceeding pro se,
brings this action claiming the Defendants violated his
constitutional rights, including his Fourth Amendment right to be
free from unreasonable searches and seizures.
Judge Nancy Corsones, has been dismissed.
One Defendant,
The remaining
Defendants now move to dismiss on the basis of, among other
things, timeliness, prosecutorial immunity, and sovereign
immunity.
For the reasons set forth below, the motions to dismiss are
GRANTED and this case is DISMISSED.
Factual Background
Bethea alleges that in January 2006, Officer Michael Plusch
of the Bennington Police Department wrongfully obtained a warrant
to record conversations through electronic surveillance.
Officer
Plusch based his warrant application on statements from a
confidential informant.
The Complaint alleges the informant’s
statements were not corroborated by any evidence aside from
Bethea’s criminal history, and did not constitute probable cause.
Bethea claims that by using the informant’s statements to obtain,
and then execute the warrant, Officer Plusch violated the Fourth
Amendment.
Bethea also names former State’s Attorney William Wright as
a Defendant, claiming that Wright coerced the confidential
informant into cooperating with law enforcement, and prosecuted
the case in the absence of probable cause.
Although the wire warrant and a subsequent search warrant
were obtained in state court, Bethea was ultimately prosecuted in
federal court.
Bethea claims that the shift to federal court
amounted to unlawful “forum shopping,” and denied him the ability
to challenge the wire warrant.
(Doc. 5 at 12.)
He further
claims that the “combined efforts of the state and federal
officials” not only prevented him from challenging the warrant
and the informant’s “alleged free and voluntary consent,” but
also denied him effective assistance of counsel and “his right to
due process under the law.”
(Id. at 12-13.)
On December 10, 2008, Bethea entered a conditional guilty
plea to one count of conspiracy to distribute and possess with
intent to distribute cocaine, in violation of 21 U.S.C. § 846.
The plea was conditioned upon the appellate resolution of his pro
se motion to suppress, which challenged the validity of the wire
2
warrant.
On July 19, 2010, the Second Circuit upheld this
Court’s determination that the warrant was lawful.
United States
v. Bethea, 388 F. App’x 20, at *1-*2 (2d Cir. July 19, 2010).
Discussion
I.
Officer Plusch’s Motion to Dismiss
Officer Plusch moves to dismiss Bethea’s Complaint as
untimely.
The Complaint alleges that in late 2005 and early
2006, Officer Plusch acted wrongfully in obtaining the wire
warrant.
The Complaint was filed on April 13, 2011, over five
years after Officer Plusch’s alleged misconduct.
Bethea brings his claims against Officer Plusch under 42
U.S.C. § 1983.
(Doc. 5 at 1.)
Civil rights claims brought
pursuant to 42 U.S.C. § 1983 are subject to Vermont’s statute of
limitations for personal injury actions.
See Wilson v. Garcia,
471 U.S. 261, 266-67 (1985); Owens v. Okure, 488 U.S. 235, 249–51
(1989) (holding that the most appropriate statute of limitations
in a § 1983 action is found in the “general or residual [state]
statute [of limitations] for personal injury actions”); Chin v.
Bowen, 833 F.2d 21, 23-24 (2d Cir. 1987).
limitations is three years.
That statute of
See 12 V.S.A. § 512(4).
Consequently, without some form of tolling, Bethea’s claims are
untimely.
Bethea does not argue for tolling.
Instead, he contends
that his cause of action will not accrue until he is “provided
3
[a] decision in any court of law regarding the probable cause and
other questions of law” surrounding the search warrant obtained
by Officer Plusch. (Doc. 19 at 4.)
This argument is misplaced.
The parties agree that pursuant to federal law, Bethea’s
Fourth Amendment claim accrued whenever he knew or had reason to
know of his injury.
See Pearls v. City of Long Beach, 296 F.3d
76, 80 (2d Cir. 2002).
However, “[t]he reference to ‘knowledge
of the injury’ does not suggest that the statute does not begin
to run until the claimant has received judicial verification that
the defendants’ acts were wrongful.”
Veal v. Geraci, 23 F.3d
722, 724 (2d Cir. 1994) (brackets omitted).
“Rather, the claim
accrues when the alleged conduct has caused the claimant harm and
the claimant knows or has reason to know of the allegedly
impermissible conduct and the resulting harm.”
Id.
Bethea was aware of the wire warrant, and the affidavit in
support of that warrant, during his criminal case.
United States
v. Bethea, No. 1:07-cr-00003-jgm (Docs. 21, 23, 35, 47.)
Specifically, he filed a pro se motion to suppress on February
15, 2008, in which he challenged the validity of the confidential
informant’s consent, and attached copies of the warrant and
Officer Plusch’s affidavit.
Id. (Docs. 47, 47-1.)
He thus “had
reason to know of the allegedly impermissible conduct and
resulting harm” more than three years before he filed this
Complaint.
Veal, 23 F.3d at 724.
4
Because Bethea was aware in
February 2008 (if not sooner) of the facts underlying his current
claim against Officer Plusch, that claim is untimely, and Officer
Plusch’s motion to dismiss is GRANTED.
Cf. Wallace v. Kato, 549
U.S. 384, 397 (2007) (holding that Fourth Amendment false arrest
claim “begins to run at the time the claimant becomes detained
pursuant to legal process”); see also Dominguez v. Hendley, 545
F.3d 585, 589 (7th Cir. 2008) (Fourth Amendment claims for false
arrest or unlawful searches accrue at the time of the violation).
II.
State Defendants’ Motion to Dismiss
Defendants State of Vermont, Bennington County, and former
Bennington County State’s Attorney William Wright (collectively
“State Defendants”) have moved to dismiss, citing sovereign and
prosecutorial immunity.
State Defendants also argue that
Bethea’s claims are barred under the Supreme Court’s ruling in
Heck v. Humphrey, 512 U.S. 477 (1994).
A.
Heck v. Humphrey
As noted above, Bethea’s allegations against the State
Defendants are that Attorney Wright conducted a malicious
prosecution without probable cause, that Wright coerced the
confidential informant, and that there was a conspiracy among
state and federal parties to deprive him of an opportunity to
challenge the warrant.
Defendants’ first argument for dismissal
is that these claims are barred by the doctrine set forth in
Heck.
5
Heck established that a plaintiff may not bring a civil
rights claim under 42 U.S.C. § 1983 if “a judgment in favor of
the plaintiff would necessarily imply the invalidity of his
conviction or sentence.”
512 U.S. at 487.
Therefore, before a
plaintiff may bring such a claim, he must show that his
conviction “has been reversed on direct appeal, expunged by
executive order, declared invalid by a [] tribunal authorized to
make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.”
Id. at 486–87.
In this case, Bethea’s conviction was upheld on direct
appeal, and there is no suggestion in the record of it having
been expunged or declared invalid.
Heck thus bars his claims
unless the Court determines that this action, “even if
successful, will not demonstrate the invalidity of any
outstanding criminal judgment against the plaintiff . . . .”
at 487 (emphasis in original).
Id.
Bethea’s malicious prosecution
claim alleges that Defendant Wright brought a case against him
without probable cause.
Because probable cause was a requisite
basis for prosecution, judgment in Bethea’s favor would
necessarily imply the invalidity of his conviction.
His
malicious prosecution claim against Attorney Wright is therefore
DISMISSED.
See, e.g., Murphy v. Lynn, 118 F.3d 938, 947 (2d Cir.
1997); Collins v. Sovereign Bank, 482 F. Supp. 2d 235, 240-41 (D.
Conn. 2007).
6
The claim that Attorney Wright coerced the confidential
informant requires a separate analysis.
Reading Bethea’s claims
liberally, the Court assumes that by attacking the voluntariness
of the informant’s consent, Bethea seeks to undermine the
legality of the wire and, correspondingly, the use of evidence
obtained through electronic surveillance.
That evidence was
ultimately cited in Officer Plusch’s application for a search
warrant which, in turn, allowed for the discovery of evidence
used to secure Bethea’s conviction.
An attack on the validity of the search warrant would be
brought under the Fourth Amendment.
Heck expressly noted that
its holding might not apply to such an attack, since a Fourth
Amendment violation would not necessarily imply an unlawful
conviction.
512 U.S. at 487 n.7.
“For example, a federal
court’s finding of a Fourth Amendment violation would not
necessarily imply that a prior state conviction was unlawful if,
despite the constitutional violation, the subject evidence was
admissible based on such doctrines as independent source,
inevitable discovery, and harmless error.”
Williams v. Ontario
County Sheriff’s Dep’t, 662 F. Supp. 2d 321, 329 (W.D.N.Y. 2009)
(citing Heck, 512 U.S. at 487 n.7).
Here, it is not clear whether the information obtained as a
result of the wire constituted the sole support for the search
warrant.
It is also unclear whether the evidence obtained from
7
the search would have been admissible notwithstanding a
successful attack on the informant’s consent.
The Court
therefore finds that, based upon the limited factual record
currently before it, dismissal on the basis of Heck would be
inappropriate.
Bethea also claims that there was a conspiracy between state
and federal actors to deprive him of the ability to challenge the
wire warrant.
This claim presumably arises out of the fact that
once the criminal case was presented in federal court, the
informant’s consent rendered electronic surveillance legal under
the Federal Wiretap Statute.
Because the legality of the search
was governed by federal law, see United States v. Pforzheimer,
826 F.2d 200, 204 (2d Cir. 1987), analysis of the state warrant
was no longer necessary or relevant.
If Bethea can show a conspiracy, the harm arising out of
that conspiracy would be his inability to challenge the state
court wire warrant.
It is not clear from the papers whether that
challenge would be successful, or whether a successful challenge
would necessarily invalidate Bethea’s conviction.
Accordingly,
the Court will not dismiss the conspiracy claim on the basis of
Heck.
B.
Prosecutorial Immunity
State Defendants next contend that Attorney Wright’s alleged
actions in the course of Bethea’s prosecution are protected by
8
prosecutorial immunity.
“[A] prosecutor has absolute immunity
against a claim for damages based on [his] performance of tasks
as an advocate in the conduct of the prosecution.”
Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001).
Parkinson v.
In contrast, a
prosecutor is not entitled to absolute immunity when he is “not
acting as an officer of the court, but is instead engaged in . .
. investigative or administrative tasks.”
Van de Kamp v.
Goldstein, 129 S. Ct. 855, 861 (2009) (internal quotations
omitted).
“The ultimate question is whether the prosecutors have
carried their burden of establishing that they were functioning
as advocates when they engaged in the challenged conduct.”
Parkinson, 238 F.3d at 150 (internal quotations omitted).
Here, any claim that Attorney Wright brought a malicious
prosecution without probable cause is clearly barred by
prosecutorial immunity.
See Schmueli v. City of New York, 424
F.3d 231, 236 (2d Cir. 2005).
Also, to the extent Attorney
Wright played a role in the decision to bring charges in federal
court, those actions are equally immune.
See Peay v. Ajello, 470
F.3d 65, 68 (2d Cir. 2006) (prosecutors are immune from suit for
“activities involving the initiation and pursuit of
prosecution”).
As to Attorney Wright’s alleged involvement in securing the
cooperation of the confidential informant, however, absolute
immunity does not apply.
When a prosecutor performs an
9
investigative function such as orchestrating a sting, see Smith
v. Garretto, 147 F.3d 91, 94 (2d Cir. 1998), or authorizing or
directing the use of wiretaps, see Powers v. Coe, 728 F.2d 97,
103 (2d Cir. 1984), there is no absolute immunity from suit.
Here, the confidential informant was allegedly coerced by Wright
into consenting to a wire.
In assisting with the wire, Wright
was hoping “that his target would . . . furnish evidence on which
a prosecution could be based.
absolute immunity.”
Such conduct is not shielded by
Smith, 147 F.3d at 94.
The motion to
dismiss Bethea’s malicious prosecution claim is therefore
GRANTED, while the motion to dismiss his coercion claim on the
basis of prosecutorial immunity is DENIED.1
C.
Eleventh Amendment
State Defendants further contend that any claims against the
State of Vermont, as well as claims against state officials in
their official capacities, are barred by the Eleventh Amendment.
The Eleventh Amendment has long been held to prohibit federal
jurisdiction over actions brought against any state that has not
consented to such jurisdiction.
1, 10 (1890).
See Hans v. Louisiana, 134 U.S.
“Stated as simply as possible, the Eleventh
1
State Defendants argue in their reply memorandum that Wright
is also entitled to qualified immunity. Because the argument, set
forth in a footnote, is not fully briefed, and as it was first raised
in a reply, the Court will not consider it at this time. See Johnson
& Johnson v. Guidant Corp., 525 F. Supp. 2d 336, 359 (S.D.N.Y. 2007)
(arguments first raised in reply memorandum are not properly
considered).
10
Amendment means that, as a general rule, state governments may
not be sued in federal court unless they have waived their
Eleventh Amendment immunity, or unless Congress has abrogate[d]
the states’ Eleventh Amendment immunity when acting pursuant to
its authority under Section 5 of the Fourteenth Amendment.”
Gollomp v. Spitzer, 568 F.3d 355, 366 (2d Cir. 2009).
This
protection extends to state officials, as a suit against a state
official in his or her official capacity is considered a suit
against the State for Eleventh Amendment purposes.
Hafer v.
Malo, 502 U.S. 21, 25 (1991).
Here, there has been no waiver by the State of Vermont, and
no congressional abrogation.
Indeed, the Supreme Court has held
that Congress did not intend to abrogate sovereign immunity by
enacting Section 1983, see Quern v. Jordan, 440 U.S. 332, 340–41
(1979), and the State of Vermont has expressly preserved its
sovereign immunity under the Eleventh Amendment.
V.S.A. § 5601(g).
See, e.g., 12
Therefore, any federal constitutional claims
being brought against the State of Vermont, and against state
officials sued for damages in their official capacities, should
be DISMISSED.
There may be some question, however, as to which State
Defendants qualify as “state officials” for purposes of the
Eleventh Amendment.
Officer Plusch has been included as a “State
Defendant,” although it appears from the Complaint that he was a
11
member of the Bennington Police Department and the Southern
Vermont Drug Task Force.
Because, as set forth above, the claims
against Officer Plusch are untimely, the Court will not address
the question of whether he is entitled to protection under the
Eleventh Amendment.
Attorney Wright is said to be an employee of “the County of
Bennington Vermont.”
(Doc. 5 at 6.)
Notwithstanding this
allegation, there is little question that when prosecuting a
criminal matter, a State’s Attorney is acting as a representative
of the State.
See Ying Jing Gan v. City of New York, 996 F.2d
522, 529-30 (2d Cir. 1993); Baez v. Hennessy, 853 F.2d 73, 77 (2d
Cir. 1988) ("When prosecuting a criminal matter, a district
attorney . . . represents the State not the county.”).
Accordingly, Attorney Wright is entitled to Eleventh Amendment
immunity for damages claims brought against him in his official
capacity.
See Darcy v. Lippman, 356 F. App’x 434, 437 (2d Cir.
2009) (“The Eleventh Amendment likewise bars [plaintiff] from
pursuing a claim for damages against the individual defendants in
their official capacities.”).
Finally, Bennington County has joined in the State
Defendants’ motion to dismiss.
The Court will not consider
whether, as a county, this Defendant is entitled to protection
under the Eleventh Amendment, since Bethea’s claims against the
County are clearly frivolous.
See Fitzgerald v. First East
12
Seventh St. Tenants Corp., 221 F.3d 362, 363–64 (2d Cir. 2000).
Bennington County is alleged to be the employer of Officer
Plusch, Attorney Wright and Judge Corsones.
(Doc. 5 at 6.)
However, it clear from both the Complaint and the attached
documentation that Officer Plusch was a Detective in the
Bennington Police Department, and assigned to the Southern
Vermont Task Force.
(Doc. 5 at 3, 20.)
Furthermore, Judge
Corsones, as a state court judge, was an officer of the State of
Vermont, and Attorney Wright, as a State’s Attorney, was
similarly employed by the State.
See 3 V.S.A. § 1101(b)(1);
Richards v. State’s Attorneys Office, 40 F. Supp. 2d 534, 537 (D.
Vt. 1999); Daniel v. Safir, 135 F. Supp. 2d 367, 372 (E.D.N.Y.
2001) (official capacity immunity extend to state court judge
sued in her official capacity).
Accordingly, no Defendant was
employed by Bennington County, and the claims against the County
are DISMISSED.
D.
Timeliness
State Defendants contend that if the Court declines to
dismiss on the basis of these previous arguments, Bethea’s claims
must be dismissed as untimely.
As a result of the discussion
above, the only surviving claim against State Defendants is the
allegation that Attorney Wright wrongfully coerced the
confidential informant into cooperating with law enforcement.
13
Assuming the allegations are true, Attorney Wright’s conduct
would have taken place in late 2005 or early 2006.
The analysis with respect to the timeliness of Bethea’s
claims against Officer Plusch applies with equal force to his
coercion claim against Attorney Wright.
The relevant statute of
limitations is three years (see Wilson, 471 U.S. at 266-67; 12
V.S.A. § 512(4)) and the Complaint was filed over five years
after the confidential informant’s involvement in the case.
Bethea was aware of the confidential informant’s role in the
investigation over three years before he filed his Complaint, see
Bethea, No. 1:07-cr-00003-jgm (Docs. 47, 47-1), and his cause of
action therefore accrued at that time.
80.
See Pearls, 296 F.3d at
The Court thus finds that the coercion claim brought against
Attorney Wright is untimely, and must be DISMISSED.2
III.
United States’ Motion to Dismiss
The final Defendant in the case is the United States, which
has also moved to dismiss.
bases for dismissal.
The United States asserts several
First, it argues that Section 1983 does not
apply to federal defendants.
The United States acknowledges, however,
2
The Court further notes that the coercion claim against
Attorney Wright is unsupported. The only fact that might support the
claim is in the State Police wire warrant affidavit, which states that
“[t]he C.I. would be cooperating . . . in consideration for his/her
pending criminal charges.” (Doc. 5 at 20.) It has been held that
consent to have conversations recorded is not vitiated by governmental
promises of leniency. See, e.g., United States v. Franks, 511 F.2d
25, 30–31 (6th Cir.), cert. denied, 422 U.S. 1042 (1975).
14
that there is a federal common law analog under Bivens v. Six Unknown
Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and that
the Court might construe Bethea’s claims against it under Bivens.
(Doc. 21 at 4.)
Indeed, the Second Circuit has approved of converting
pro se Section 1983 claims against federal officials to Bivens
actions.
See, e.g., Tavarez v. Reno, 54 F.3d 109, 109-10 (2d Cir.
1995).
Even construing Bethea’s claim as a Bivens claim, however, it
fails as a matter of law.
First, Bivens actions may only be brought
against individual federal actors, and not against the United States
itself.
See Polanco v. U.S. Drug Enforcement Admin., 158 F.3d 647,
650 (2d Cir. 1998).
Furthermore, if Bethea were to substitute
individual defendants, his claims would necessarily involve the
decision to initiate and pursue a prosecution in federal court.
Such
claims would be barred by absolute prosecutorial immunity, and be ripe
for dismissal.
See Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).
The United States’ motion to dismiss is therefore GRANTED.
IV.
Bethea’s Motion to Amend
Also pending before the Court is Bethea’s request for leave to
amend his Complaint.
The motion to amend seeks to add more detail to
his claims of misconduct by Defendants Plusch and Wright with respect
to their dealings with the confidential informant.
(Doc. 17 at 2-3.)
For reasons set forth above, those claims are time barred.
The motion
to amend (Doc. 18) is therefore DENIED.
The Court also acknowledges that it “should not dismiss [a pro
se complaint] without granting leave to amend at least once when a
15
liberal reading of the complaint gives any indication that a valid
claim might be stated.”
2000).
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
Nevertheless, leave to amend is not necessary when it would be
futile, as when the complaint, even read liberally, does not
“suggest[] that the plaintiff has a claim that [he] has inadequately
or inartfully pleaded and that [he] should therefore be given a chance
to reframe.”
Id.
In this case, the majority of Bethea’s claims are
barred by sovereign and prosecutorial immunity.
are untimely.
flaws.
The remaining claims
A more detailed pleading could not cure any of these
The Court therefore declines to grant Bethea leave to amend
his Complaint.
Conclusion
For the reasons set forth above, Defendants’ motions to dismiss
(Docs. 13, 20 and 21) are GRANTED, Bethea’s motion to amend (Doc. 18)
is DENIED, and this case is DISMISSED.3
It is further certified that any appeal taken in forma pauperis
from this Order would not be taken in good faith because such an
appeal would be frivolous.
See 28 U.S.C. § 1915(a).
SO ORDERED.
Dated at Brattleboro, in the District of Vermont, this 29th day of
November, 2011.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge
3
To the extent that Bethea is bringing state law claims for
violations of the Vermont Constitution (Doc. 5 at 15-16), the Court
declines to exercise supplemental jurisdiction over those claims.
See 28 U.S.C. § 1367(c); United Mine Workers v. Gibbs, 383 U.S. 715,
726 (1966).
16
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