Levesque v. John and Jane Does of the US Attorneys Office/Justice Dept et al

Filing 6

OPINION AND ORDER Denying 5 Plaintiff's Motion to Reopen Case. Plaintiff's Motion for Reconsideration, Objection to the R&R, and Motion for Magistrate Judge Conroy to recuse himself are also denied. Signed by Chief Judge Christina Reiss on 12/17/2015. (pac)

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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT

20!5 DEC 17 AM 10: 09

ANDRE LEVESQUE,

)
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Plaintiff,
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v.
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)
)
JOHN and JANE DOES of the U.S.
ATTORNEYS OFFICE/JUSTICE
)
DEPARTMENT, EUGENIA A.P. COWLES, )
and JOHN and JANE DOES of the FEDERAL )
BUREAU OF INVESTIGATION,
)
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Defendants.
)

Case No. 2:15-cv-17

OPINION AND ORDER DENYING PLAINTIFF'S MOTION TO REOPEN CASE
(Docs. 1, 5)
This matter is before the court on Plaintiff Andre Levesque's motion to reopen
case filed on October 5, 2015 (Doc. 5). On January 27,2015, Plaintiff filed a motion to
proceed in forma pauperis ("IFP") (Doc. 1), as well as a proposed Complaint, alleging,
among other things, violations of his civil rights arising out of his prosecution in a
criminal matter pending in this court before the Honorable William K. Sessions III.
On March 5, 2015, Magistrate Judge John M. Conroy issued a Report and
Recommendation ("R & R") recommending that Plaintiffs motion for leave to proceed
IFP be denied for two reasons. First, Plaintiff did not submit a certified copy of the
account statement of his prison trust account, as required by 28 U.S.C. § 1915(a)(2).
Second, the Magistrate Judge found that the "three strikes" rule set forth in 28 U.S.C.

§ 1915(g) applies to Plaintiff. The three strikes rule prohibits the court from permitting
an incarcerated plaintiff who has brought three or more previous actions that have been
dismissed to proceed IFP. Because it was unclear from the allegations of Plaintiffs
proposed Complaint whether there was a risk of imminent physical injury, the Magistrate

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Judge concluded that Plaintiff was not eligible for the "imminent danger" exception to
§ 1915(g).
The deadline to object to the R & R was March 23, 2015. No objections were
filed. The court thereafter issued an Opinion and Order adopting the Magistrate Judge's
R & R on March 26, 2015. Plaintiff now seeks to reopen the case so that he may seek
reconsideration, interpose objections to the R & R, and request that Magistrate Judge
Conroy recuse himself. Plaintiff is self-represented. Defendants have not filed a
response, nor is it clear that they have been served. For the reasons set forth below,
Plaintiffs motion to reopen case is DENIED.

I.

Factual Background.
Plaintiff is charged in docket No. 2:14-cr-00062 with stalking in violation of 18

U.S.C. § 2261A(2), and was committed to the custody of the Federal Bureau of Prisons
for an evaluation of his competency to stand trial pursuant to 18 U.S.C. § 4241(a). On
August 4, 2014, Judge Sessions committed Plaintiff to the custody of the United States
Attorney General pursuant to 18 U.S.C. § 4241(d) for additional observation and
treatment upon a finding that Plaintiff was not competent to stand trial. On June 1, 2015,
Judge Sessions found that Plaintiff was competent to stand trial, and Plaintiff entered a
plea of guilty. The court deferred acceptance of the plea pending a psychological
examination of Plaintiff.
In his proposed Complaint, Plaintiff alleges that Assistant United States Attorney
("AUSA") Eugenia A.P. Cowles and unnamed Department of Justice ("DOJ") and
Federal Bureau of Investigation ("FBI") officials improperly harassed and attempted to
coerce him by prosecuting him in docket No. 2:14-cr-00062. He alleges that he is "being
prosecuted for calling the police station" and for calling "a mental health worker who
participated in trying to coerce and intimidate" him. (Doc. 1-2 at 2,

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6.) He claims that

the competency evaluation was "performed during 460 hours of continuous intense bright
light[,]" and that a person "tried to shove a stick in my [rectum,]" causing irreparable
harm, post-traumatic stress, and pain and suffering. !d. at 2, ~ 6; 3, ~ 8.

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Plaintiff claims that he did not have the opportunity to object to the R & R until
September 2015 because he has been continuously transferred between different Bureau
of Prisons facilities, denied access to his legal papers during transport, and unable to use
provided computer services to type and print material. He indicates that he has had
difficulty formulating his objections which are "on the same file as the lawsuit against the
[Bailiff] and Judge Conroy[.]" (Doc. 5 at 3.) Plaintiff also claims that the U.S. Marshals
Service denied him access to his legal paperwork while he was being transported.
Because of the "restrictions and stresses[] of prolong[ ed] confinement" and the "random
allowed time" for the use of a computer to type and print material, Plaintiff asks the court
to "ignore" any delay and reopen the case. (Doc. 5 at 1.)
If permitted to file an untimely objection, Plaintiff seeks to object to the R & Ron
the grounds that AUSA Cowles "did in fact [maliciously] with callous deliberate
indifference violate my constitutional rights when she abused the competency clause[.]"

!d. at 2. He also challenges the conclusion that DOJ has immunity from prosecution
because "it is well established that they can be held accountable for [malicious]
procedural errors, knowingly with deliberate indifference, such as in this case[]" !d. at 1.
Finally, Plaintiff asks Magistrate Judge Conroy to recuse himself, alleging that the
Magistrate Judge asked him to swear to "God the one true Nazi" in docket No. 2:14-cr00062. !d. at 2.

II.

Conclusions of Law and Analysis.
A.

Standard of Review.

Filings by self-represented parties are "to be liberally construed, and a [selfrepresented] complaint, however inartfully pleaded, must be held to less stringent
standards than formal pleadings drafted by lawyers." Erickson v. Pardus, 551 U.S. 89,
94 (2007) (internal quotation marks and citations omitted). The court must "liberally
construe pleadings and briefs submitted by [self-represented] litigants, reading such
submissions 'to raise the strongest arguments they suggest."' Bertin v. United States, 4 78
F.3d 489, 491 (2d Cir. 2007) (internal citation omitted) (quoting Burgos v. Hopkins, 14
F.3d 787, 790 (2d Cir. 1994)). Because Plaintiff asserts that factors outside ofhis control
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prevented him from responding to the R & R until September 2015, the court construes
Plaintiffs motion to reopen as a motion for relief from judgment pursuant to Fed. R. Civ.
P. 60(b).
Under Rule 60(b ), "[ o]n motion and just terms, the court may relieve a party or its
legal representative from a final judgment, order, or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect" Fed. R. Civ. P. 60(b)(l). "The
decision whether to grant a party's Rule 60(b) motion is committed to the sound
discretion ofthe district court[.]" Stevens v. Miller, 676 FJd 62, 67 (2d Cir. 2012)
(internal quotation marks omitted). "Since [Rule] 60(b) allows extraordinary judicial
relief, it is invoked only upon a showing of exceptional circumstances." Nemaizer v.
Baker, 793 F.2d 58, 61 (2d Cir. 1986).
B.

Whether Plaintifrs Failure to Timely Object to the R & R was
Excusable.

In evaluating whether neglect is excusable, the court considers: "the danger of
prejudice to the [non-movant], the length of the delay and its potential impact on judicial
proceedings, the reason for the delay, including whether it was within the reasonable
control of the movant, and whether the movant acted in good faith." Silivanch v.
Celebrity Cruises, Inc., 333 FJd 355, 366 (2d Cir. 2003) (citations omitted) (internal
quotation marks and alterations omitted). The Second Circuit has "focused on the third
factor: the reason for the delay, including whether it was within the reasonable control of
the movant." !d. (internal quotation marks omitted).
Defendants will be prejudiced if this matter is re-opened because they will be
forced to continue to defend against a lawsuit that fails to state a claim against them.
Plaintiff alleges that AUSA Cowles and unnamed DOJ and FBI officials improperly
harassed and attempted to coerce him by prosecuting him in docket No. 2:14-cr-00062.
As relief, Plaintiff seeks one hundred million British pounds.
Prosecutors are entitled to absolute immunity for decisions related to the
prosecution of a defendant. See Imbler v. Pachtman, 424 U.S. 409,427 (1976) ("We
conclude that the considerations outlined above dictate the same absolute immunity under
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[§] 1983 that the prosecutor enjoys at common law."). The objections Plaintiff seeks to
interpose would not alter this outcome. Plaintiffs assertion that AUSA Cowles violated
his constitutional rights by "abus[ing] the competency clause" (Doc. 5 at 2) cannot
succeed where a prosecutor requests a competency evaluation under a colorable claim of
authority and the court orders it to take place in accordance with applicable law. See

Bernard v. Cty. of Suffolk, 356 F.3d 495, 504 (2d Cir. 2004) (concluding that a prosecutor
"engaged in advocative functions will be denied absolute immunity only if he acts
'without any colorable claim of authority."').
Plaintiffs claim that DOJ may be "held accountable for [malicious] procedural
errors[,]" (Doc. 5 at 1), also fails because the underlying criminal case has not terminated
in his favor. See Poventudv. City ofNew York, 750 F.3d 121, 130 (2d Cir. 2014)
("[m]alicious prosecution suits require, as an element of the offense, the termination of
the proceeding in favor of the accused.") (internal quotation marks omitted). Plaintiffs
claims seeking monetary damages under 42 U.S.C. § 1983 for false arrest or malicious
prosecution are premature where, as here, the underlying criminal matter remains
pending. See Wallace v. Kato, 549 U.S. 384, 393-94 (2007) ("If a plaintiff files a falsearrest claim before he has been convicted ... it is within the power of the district court,
and in accord with common practice, to stay the civil action until the criminal case or the
likelihood of a criminal case is ended.").
The three strikes rule, 28 U.S.C. § 1915(g), requires Plaintiff to pay the standard
filing fee and requires him to effect service without the court's assistance. Service in this
case would be challenging as, other than AUSA Cowles, all other proposed defendants
are solely identified as "John and Jane Does." In such circumstances, re-opening this
case so that Plaintiff can assert belated objections that do not present colorable claims for
relief is not only prejudicial to the non-moving parties and to the court's allocation of
scarce public resources, but would likely be an abuse of discretion. See Lepkowski v.

US. Dep 't of Treasury, 804 F.2d 1310, 1314 (D.C. Cir. 1986) ("motions for relief under
Rule 60(b) are not to be granted unless the movant can demonstrate a meritorious claim
or defense"); see also United States v. Goist, 378 F. App'x 517,519 (6th Cir. 2010)
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("[t]he government would have been prejudiced by [reopening a case] because it would
have been subject to additional frivolous filings.").
The second factor, the length of the delay and its potential impact on the
proceedings, also weighs in favor of denying Plaintiffs motion. Pursuant to 28 U.S.C.
§ 636(b)(l), the deadline to object to the R & R was March 23, 2015 and Plaintiffs
motion was filed on October 5, 2015, a delay of six months and twelve days. The delay
is therefore substantial and has the potential to impact the proceedings because it would
require the court to re-open and revisit a case that has been closed without any significant
likelihood that the court could lawfully grant Plaintiff his requested relief. Generally,
failure to file a timely objection to a Report and Recommendation of a Magistrate Judge
"operates as a waiver of any further judicial review of the magistrate's decision." Small

v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989). Here, that result is
appropriate.
The third and most important factor, the reason for the delay, is arguably neutral
but it is unsupported by any documentary proof. Plaintiff alleges that the delay was not
within his control because he was transferred seventeen times between different Bureau
of Prisons facilities over the course of thirteen months. It is unclear, however, whether
all of those transfers occurred during the time period for objections. It is also unclear
whether Plaintiff can substantiate his claim that he was without access to legal resources
during the entire objection period. See Kotlicky v. US. Fid. & Guar. Co., 817 F.2d 6, 9
(2d Cir. 1987) ("[g]enerally, courts require that the evidence in support of the motion to
vacate a final judgment be 'highly convincing[]"'); Jedrejcic v. Croatian Olympic

Comm., 190 F.R.D. 60, 77 (E.D.N.Y. 1999) ("[t]he strict evidentiary requirements apply
as well to [self-represented] litigants."). As noted by the Supreme Court, there are a
"range of possible explanations for a party's failure to comply with a court-ordered filing
deadline":
At one end of the spectrum, a party may be prevented from complying by
forces beyond its control, such as by an act of God or unforeseeable human
intervention. At the other, a party simply may choose to flout a deadline.
In between lie cases where a party may choose to miss a deadline although
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for a very good reason, such as to render first aid to an accident victim
discovered on the way to the courthouse, as well as cases where a party
misses a deadline through inadvertence, miscalculation, or negligence.

Pioneer Inv. Servs. Co. v. BrunswickAssocs. Ltd. P'ship, 507 U.S. 380,387-88 (1993)
(emphasis omitted). Although Plaintiff alleges that events outside ofhis control
prevented him from interposing a timely objection to the R & R, there was ample time for
Plaintiff to at least file a simple request for additional time to file an objection. As the
Second Circuit has observed, "the legal system would groan under the weight of a
regimen of uncertainty in which time limitations were not rigorously enforced-where
every missed deadline was the occasion for the embarkation on extensive trial and
appellate litigation to determine the equities of enforcing the bar." Silivanch, 333 F.3d at
368.
For the foregoing reasons, Plaintiffs motion to re-open this case cannot be granted
under Fed. R. Civ. P. 60(b). See Nemaizer, 793 F.2d at 61 (limiting relief under this Rule
to "a showing of exceptional circumstances."). The court has identified no other basis for
granting the requested relief. In the event Plaintiff seeks to pursue a claim of false arrest
and malicious prosecution when the underlying criminal proceeding against him is
resolved, he must bear the standard filing fee and effect service upon the named
defendants without the court's assistance.
CONCLUSION

For the reasons stated above, the court DENIES Plaintiffs motion to reopen case
(Doc. 5). Plaintiffs Motion for Reconsideration, Objection to the R & R, and Motion for
Magistrate Judge Conroy to recuse himself are also DENIED.

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