Brewer v. Hashim
OPINION AND ORDER: Defendant's 17 MOTION to Dismiss 1 Complaint for Failure to State a Claim and Lack of Subject-Matter Jurisdiction is GRANTED and Plaintiff's 10 MOTION to Set Aside Forfeiture and 14 AMENDED MOTION to Set Aside Forfeiture are DENIED as moot. Signed by Judge John M. Conroy on 6/27/2017. (hbc)
UNITED STATES DISTRICT COURT
DISTRICT OF VERMONT
Civil Action No. 2:16-cv-326-jmc
OPINION AND ORDER
(Docs. 10, 14, 17)
Plaintiff Robert Brewer, proceeding pro se, brings this action against Defendant
Nader Hashim, a Vermont State Police (VSP) trooper. (Doc. 1.) Brewer’s claims arise
from an April 2013 traffic stop conducted by Hashim of Brewer’s vehicle, Hashim’s
seizure of a handgun found in the glove compartment of the vehicle, and a subsequent
press release about the incident issued by Hashim and the VSP. (Id.) Brewer asserts
claims under 42 U.S.C. § 1983 for violations of his constitutional rights, a “Computer
Fraud” claim brought under two federal statutes, and state law claims of fraud and libel.
Presently before the Court is Hashim’s Motion to Dismiss the Complaint under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). (Doc. 17.) All parties have
consented to direct assignment to the undersigned Magistrate Judge. (Docs. 7, 16.) See
28 U.S.C. § 636(c). For the reasons stated below, Hashim’s Motion to Dismiss (Doc. 17)
is GRANTED, and Brewer’s Complaint (Doc. 1) is DISMISSED.
The parties are largely in agreement regarding the relevant facts. Where they
disagree (see, e.g., Doc. 21 at 1), for purposes of ruling on the pending Motion to
Dismiss, the Court accepts as true the factual allegations contained in Brewer’s
Complaint (Doc. 1), as summarized below. See Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Traffic Stop and Firearm Seizure
On April 8, 2013, Brewer’s vehicle was stopped by several VSP officers while
Brewer was driving south on I-91 in Vermont. (Doc. 1 at 4–5.) The officers “ran an
NLETS query [which] . . . verified [Brewer’s] driver[’]s license and vehicle registration
as authentic.” 1 (Id. at 4, ¶ 9.) One of the officers asked Brewer if he had a weapon in his
vehicle, and Brewer replied that he did. (Id., ¶ 11; Doc. 21 at 1.) Asked where the
weapon was located, Brewer indicated that it was in the glove compartment. (Doc. 1 at 5,
¶ 12; Doc. 21 at 1–2.) The officer informed Brewer that, “under Vermont law, it [i]s not
a crime to posses[s] a weapon and store it in the glove compartment of a vehicle.”
(Doc. 1 at 5, ¶ 12.) Another officer then demanded that Brewer exit his vehicle. (Id.,
¶ 13.) Brewer complied, and a subsequent search of his person revealed nothing of
interest. (Id., ¶ 14.) After being informed that the VSP had probable cause to search his
NLETS is an acronym for the National Law Enforcement Telecommunications System, a
“federal database of criminal histories . . . that the police can access.” Culp v. Madigan, 840 F.3d 400,
403 (7th Cir. 2016). It is administered by the Federal Bureau of Investigation (FBI). See United States v.
Hutchinson, 408 F.3d 796, 799 (D.C. Cir. 2005).
vehicle, Brewer was asked to choose between signing a waiver consenting to the search
or having his car impounded. (Id., ¶ 15.) Brewer signed the waiver, and the officers
searched his car, finding “nothing they considered noteworthy.” (Id., ¶ 16.)
One of the officers then stated: “‘You have a conviction and your weapon is
therefore illegal. OK?’” (Id., ¶ 17.) Brewer replied: “‘It’s not OK. I have no
convictions. I disagree in the strongest possible language,’” and explained that the
conviction they referenced had been “set aside on appeal [in around 2005 or 2006],
resulting in no conviction.” (Id., ¶ 18.) Brewer alleges that he “carried in his car the
docket sheet showing the appeals court order overturning the lower court ruling”; he does
not, however, state that he showed this “docket sheet” to the officers during the traffic
stop. (Id.) The “docket sheet” is apparently attached as Exhibit A to the Complaint,
which appears to be an entry order from the Circuit Court of Mobile County, Alabama
indicating that an unspecified earlier order of that court was “set aside”; and that Brewer
was “placed on probation” for six months, was to have no contact with the victim, and
was to pay costs within six months.2 (Id. at 5, 12; see also Doc. 26.) On the top of the
document, the words “SET ASIDE” are handwritten. (Id.)
In any event, the officers “took” Brewer’s weapon. (Doc. 1 at 5, ¶ 19.) Brewer
requested a receipt for the weapon, and it was produced for him at the West Brattleboro
State Police Barracks. (Id.) The receipt listed “Officer Hashim” as “the case officer with
overall supervision for the highway stop.” (Id. at 5, ¶ 20, 13.)
The “docket sheet” attached as Exhibit A to the Complaint is mostly illegible. (See Doc. 1 at
12, labeled “Exhibit A Conviction Vacated on Appeal August 3, 2006.”) The Court therefore relies on
the copy of this document that was entered into evidence by agreement of the parties at the May 23, 2017
hearing on the pending Motion to Dismiss. (See Doc. 26.)
Press Release and Other Post-Stop Events
Brewer alleges that, “[s]hortly after leaving Vermont, [he] began seeing
newspaper [articles] on Google published by two area newspapers purporting to offer
accounts of [the subject] highway stop.” (Id. at 6, ¶ 31.) These articles referred to
Brewer as a “convicted person” and a “transient person,” implied or inferred that he had
violated federal gun laws, and stated that he was “under police investigation for criminal
activity.” (Id., ¶ 32.) The articles did not state that Brewer had successfully appealed his
prior conviction; nor did they state that Brewer had told the officers where his weapon
was located in his car, instead “impl[ying] [that] by dint of dumb luck, police got lucky
and ‘found’ [the] weapon in [Brewer’s] car.” (Id.)
On January 22, 2014, Attorney Tom Bowen of the New York law firm Coughlin
& Gerhart, telephoned Brewer and informed him that he “saw on the Internet one of the
[relevant] articles.” (Id. at 7, ¶ 34.) Months later, Attorney Jay Ward Brown of the
Washington, DC law firm Levine Sullivan Koch and Schultz, sent Brewer a letter dated
June 4, 2014, which enclosed a copy of an April 8, 2013 “Press Release” titled “Law
Supplemental Narrative” (referred to herein as the press release).3 (Id. at 5, ¶ 22; see id.
at 14, Ex. C.) The press release lists “Officer Nader Hashim” as its author (id.), and
Brewer attached a photocopy of the press release to his Complaint, but, like the “docket sheet”
attached as Exhibit A to the Complaint, it is mostly illegible. (See Doc. 1 at 14, labeled “Exhibit C
Officer Hashim’s Press Release of April 8, 2013 Claiming Conviction On My Record.”) The Court
therefore relies on the copy of the press release that is attached as Exhibit 1 to Hashim’s Motion to
Dismiss, to which Brewer has raised no objection. (See Doc. 17-1 at 2; see generally Doc. 21.)
On 04/08/2013, at approximately 1:30am, a member of the Vermont State
Police performed a motor vehicle stop at mile marker 14.4, on I-91. The
operator of the vehicle, identified as Mr. Robert Taylor Brewer, 64, was
found to be in possession of a .40 caliber handgun. Further investigation
revealed that Mr. Brewer has a prior conviction of domestic assault which,
under federal law, prohibits him from possessing a firearm. The firearm was
seized by the Vermont State Police, and the investigation is ongoing.
(Doc. 17-1 at 2; see also Doc. 1 at 14.) On June 26, 2014, Brewer and two friends
“Googled” Brewer’s name, retrieving results indicating that Brewer had a prior
conviction, was a transient, and had violated federal gun laws. (Doc. 1 at 8, ¶¶ 43–47.)
Brewer’s Complaint also details his attempts to attain an administrative remedy,
including correcting his record of conviction and regaining possession of his confiscated
weapon. Specifically, Brewer alleges that in November 2013, he sent a “Notice of
Claim” to Vermont’s Attorney General “in order to recover his property” (presumably,
the weapon confiscated during the traffic stop), “or receive compensation [for it].” (Id. at
6–7, ¶ 33.) In February 2014, Brewer twice telephoned “the officer in charge of internal
affairs for the [VSP],” seeking an administrative remedy, but “[n]o one answered the
phone on either occasion.” (Id. at 7, ¶ 35.) On February 7, 2014, an individual at the
VSP’s Brattleboro barracks advised Brewer that VSP officers are only authorized to rely
on prior convictions appearing on an “FBI computer file,” and thus even if Brewer had
shown the officers conducting the subject traffic stop the “docket sheet” indicating that
his conviction had been overturned, his weapon still would have been confiscated. (Id.,
Failing to obtain an administrative remedy with the VSP, Brewer attempted to file
a “criminal history challenge to the FBI’s criminal records database.” (Id., ¶ 37.) On
February 20, 2014, Brewer wrote a letter to the FBI’s “Criminal History Analysis Team
at its West Virginia headquarters[,] alleging fraud in the compiling, maintenance, [and]
distribution of his records dating back to the year 2006, pointing out [that] he was being
scammed because [the] records contained a lower court conviction while ignoring a
successful appeal.” (Id., ¶ 38.) About a month later, in March 2014, Brewer received a
written reply from Joseph Sensibaugh, Director of the FBI’s Biometric Division,
informing Brewer that, “on his behalf, an FBI representative had contacted the Alabama
Criminal Justice Information Center,” and that “his records challenge had failed, and a
non-[f]ederal conviction remained on his record.” (Id., ¶ 39.)
This is not the first legal action Brewer has brought in connection with his April 8,
2013 traffic stop: he filed a case involving substantially similar facts in the Northern
District of New York on July 31, 2014. See Brewer v. Rutland Herald, No. 3:14-cv-958
(GLS/DEP), 2016 WL 4435232, at *1 (N.D.N.Y. Aug. 18, 2016); see also No. 3:14-cv958, ECF No. 1 (Complaint). In that action, Brewer listed as defendants the Rutland
Herald and Brattleboro Reformer newspapers, two employees of the Alabama Criminal
Justice Information Center, four Google employees, Hashim, and others. Brewer, No.
3:14-cv-958, ECF No. 1 at 1, 2016 WL 4435232, at *1. At Brewer’s specific request,
however, Hashim was not served in that lawsuit and the period for proper service was
allowed to lapse. Brewer, 2016 WL 4435232, at *1 n.1. Accordingly, on August 18,
2016, the claims against Hashim were dismissed without prejudice for failure to timely
serve. Id. The court stated as follows with respect to that dismissal: “At the request of
Brewer, defendant Hashim . . . ha[s] not been served by the Unite[d] States Marshals
Service. Service has not been otherwise made on [Hashim], and, at this point, well over
 days has elapsed since the initial filing against them. Accordingly, the court
dismisses Hashim . . . without prejudice.” Id. (internal citations omitted). Brewer’s
claims against the remaining defendants in that case were dismissed on the same date, but
on different grounds. Id. at *6.
On December 9, 2016, Brewer filed this case in the Northern District of New
York. (Doc. 1.) Finding that venue was improper in that district, the court transferred the
case here, to the District of Vermont, where “the events giving rise to [Brewer’s] claims
occurred” and where Hashim “presumably” resides. (Doc. 4 at 3–4.) On February 21,
2017, Brewer filed a “Motion to Set Aside Forfeiture,” seeking the “return and
repatriation of [the] firearm” taken from his vehicle during the vehicle stop in April 2013.
(Doc. 10 at 6.) About a week later, on March 2, 2017, Brewer filed an “Amended Motion
to Set Aside Forfeiture; to Cure Improper Service,” seeking the same relief sought in the
initial “Motion to Set Aside Forfeiture” and requesting “the immediate return of [his]
firearm” or a “check in the amount of $450” to compensate him for the loss of his
weapon and related costs. (Doc. 14 at 8.) A few days after that filing, on March 6, 2017,
Hashim filed the pending Motion to Dismiss (Doc. 17), addressed herein. Thereafter,
Brewer filed an Opposition to the Motion to Dismiss (Doc. 21), and Hashim filed a Reply
to the Opposition (Doc. 23).
On May 23, 2017, the Court held a hearing on Hashim’s Motion to Dismiss, and
on June 6, 2017, at the Court’s request, each party submitted further briefing regarding
the issue of the statute of limitations governing Brewer’s claims. (Docs. 29, 30.) Finally,
on June 16, 2017, Brewer filed a document titled “Notice of Filing[:] FBI Concludes
Investigation Into Plaintiff’s Record.” (Doc. 32.) Therein, Brewer claims that, as a result
of his telephone inquiry to the FBI’s Albany, New York office and his submission of
“additional information related to the proceedings of Brewer v. Rutland Herald,” he
received a June 7, 2017 letter from William McKinsey, Section Chief of the FBI’s
Criminal Justice Information Services Division, informing that “his FBI record has been
updated to show [that] a conviction for domestic violence was dismissed on August 3,
2006.” (Id. at 2; see id. at 3, “Exhibit A[:] FBI letter to Plaintiff Page 1,” stating: “[T]he
Alabama authorities authorized the FBI’s CJIS Division to modify the disposition for
date of arrest September 20, 2005, to reflect that the charge was dismissed on August 3,
Brewer alleges that Hashim:4 (1) violated Brewer’s constitutional rights protected
by the Due Process Clause and the Privileges and Immunities Clause, in violation of 42
U.S.C. § 1983; (2) engaged in computer fraud under the Stored Communications Act
(SCA), 18 U.S.C. § 2701 et seq., and the Computer Fraud and Abuse Act (CFAA),
18 U.S.C. § 1030; and (3) committed the state law torts of fraud and libel. (Doc. 1 at
Brewer’s filings do not indicate whether Hashim is sued in his official or individual capacity.
(See Docs. 1, 21.) “[W]here a pro se litigant does not specify in what capacity the individual defendants
are being sued, courts generally liberally construe the complaint as alleging both official and individual
capacity claims.” Preterotti v. Souliere, Civil Action No. 2:16-cv-72-wks-jmc, 2016 WL 7971319, at *5
(D. Vt. Dec. 28, 2016) (alteration in original) (internal quotation marks omitted), report and
recommendation adopted, 2017 WL 318798 (D. Vt. Jan. 23, 2017). Therefore, the Court assumes Brewer
intended to sue Hashim in both capacities.
8–9.) For relief, Brewer seeks to enjoin Hashim, as well as “the State of Vermont, its
agents and employees,” from relying on the FBI record which, Brewer argues,
erroneously identifies him as having a prior conviction which would preclude him from
carrying a firearm. (Id. at 10, ¶ 63.) Brewer further seeks “[e]nactment of NYCPL
160.60 stipulating that when an individual wins on direct appeal . . . , a person’s legal
status is reset to where it was prior to arrest”; the “[r]eturn of [his] firearm,” which was
“seized erroneously” based on his inaccurate conviction record; pecuniary damages for
his “physical, emotional[,] and psychological suffering at the hands of [Hashim]”; and
any other relief the Court deems appropriate. (Id. at 10–11, ¶¶ 64–67.)
In the pending Motion, Hashim urges the Court to dismiss Brewer’s Complaint for
lack of subject-matter jurisdiction and failure to state a claim upon which relief may be
granted. (Doc. 17 (citing Fed. R. Civ. P. Rules 12(b)(1) and 12(b)(6).) Specifically,
Hashim contends that the Eleventh Amendment bars all claims against him in his official
capacity for lack of subject-matter jurisdiction, and that Brewer’s individual capacity
claims against him are barred by the applicable statutes of limitations. (Docs. 17, 23.)
He further asserts that, even if any of the individual capacity claims are not time-barred,
each fails to state a claim upon which relief may be granted. (Id.)
Standard of Review
Rule 12(b)(6) Motion to Dismiss
Hashim’s Motion to Dismiss is brought, in part, under Federal Rule of Civil
Procedure 12(b)(6). “To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (quoting Iqbal,
556 U.S. at 678). “A claim has facial plausibility when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
“Although plausibility is not a ‘probability requirement,’ [p]laintiffs must allege facts that
permit ‘more than a sheer possibility that a defendant has acted unlawfully.’” Turkmen v.
Hasty, 789 F.3d 218, 233 (2d Cir. 2015) (quoting Iqbal, 556 U.S. at 678).
Two principles guide a plausibility determination. “First, the tenet that a court
must accept as true all of the allegations contained in a complaint is inapplicable to legal
conclusions”; “[t]hreadbare recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “Second, only a
complaint that states a plausible claim for relief survives a motion to dismiss.” Id. at 679.
The determination of whether a complaint states a “plausible claim for relief” is “a
context-specific task that requires the reviewing court to draw on its judicial experience
and common sense.” Id.
In addition to considering these principles, where, as here, the complaint was filed
pro se, it “must be construed liberally with ‘special solicitude’ and interpreted to raise the
strongest claims that it suggests.” Hogan v. Fischer, 738 F.3d 509, 515 (2d Cir. 2013)
(quoting Hill v. Curcione, 657 F.3d 116, 122 (2d Cir. 2011)). “This policy of liberally
construing pro se submissions is driven by the understanding that ‘[i]mplicit in the right
of self-representation is an obligation on the part of the court to make reasonable
allowances to protect pro se litigants from inadvertent forfeiture of important rights
because of their lack of legal training.’” Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 475 (2d Cir. 2006) (alteration in original) (quoting Traguth v. Zuck, 710 F.2d 90, 95
(2d Cir. 1983)). When a party seeks dismissal of a pro se complaint under Rule 12(b)(6),
the court applies “a more flexible standard” to evaluate the complaint’s sufficiency than it
would use to review a complaint submitted by counsel. Thompson v. Pallito, 949 F.
Supp. 2d 558, 571 (D. Vt. 2013). Even so, a complaint filed by a pro se plaintiff “must
state a plausible claim for relief.” Hogan, 738 F.3d at 515.
42 U.S.C. § 1983
Reading Brewer’s Complaint liberally, his constitutional claims are brought under
42 U.S.C. § 1983. A claimant may bring a suit for damages under § 1983 “against
‘[e]very person who, under color of any statute . . . of any State . . . subjects, or causes to
be subjected, any citizen . . . to the deprivation of any rights, privileges, or immunities
secured by the Constitution and laws . . . .’” Wyatt v. Cole, 504 U.S. 158, 161 (1992)
(alterations in original) (quoting 42 U.S.C. § 1983). “The purpose of § 1983 is to deter
state actors from using the badge of their authority to deprive individuals of their
federally guaranteed rights and to provide relief to victims if such deterrence fails.” Id.
(citing Carey v. Piphus, 435 U.S. 247, 254–57 (1978)). “A § 1983 claim has two
essential elements: (1) the defendant acted under color of state law; and (2) as a result of
the defendant’s actions, the plaintiff suffered a denial of her federal statutory rights, or
her constitutional rights or privileges.” Annis v. Cty. of Westchester, 136 F.3d 239, 245
(2d Cir. 1998). “Section 1983 itself creates no substantive rights; it provides only a
procedure for redress for the deprivation of rights established elsewhere.” Thompson,
949 F. Supp. 2d at 569 (quoting Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993)).
Official Capacity Claims
Hashim argues that Brewer’s claims against him in his official capacity are barred
by the Eleventh Amendment doctrine of sovereign immunity. (Doc. 17 at 4–7.) The
Eleventh Amendment provides immunity to states and state agencies “from suits brought
by private parties in federal court.” In re Charter Oak Assocs., 361 F.3d 760, 765 (2d
Cir. 2004) (citing Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 54 (1996)). This
immunity also protects “state officials sued for damages in their official capacity.”
Minotti v. Lensink, 798 F.2d 607, 609 (2d Cir. 1986) (citing Kentucky v. Graham, 473
U.S. 159 (1985)). “[A] suit against a state official in his or her official capacity is not a
suit against the official but rather is a suit against the official’s office. As such, it is no
different from a suit against the State itself.” Will v. Mich. Dept. of State Police, 491 U.S.
58, 71 (1989) (citation omitted). Applied here, Brewer’s claims against Hashim in his
official capacity as a VSP trooper are considered claims against the State of Vermont
itself, and are barred by the doctrine of sovereign immunity.
There are, however, three exceptions to the sovereign immunity doctrine: (1) the
State has waived its immunity; (2) the State’s immunity is abrogated by a valid exercise
of Congressional authority; or (3) a state official is sued in an action seeking only
prospective injunctive relief. First, a state can choose to waive its sovereign immunity
under the Eleventh Amendment by “mak[ing] a ‘clear declaration’ that it intends to
submit itself to [a federal court’s] jurisdiction,” In re Charter Oaks Assocs., 361 F.3d
760, 767 (2d Cir. 2004) (second alteration in original) (quoting Coll. Sav. Bank v. Fla.
Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 676 (1999)), or “by voluntarily
invoking federal jurisdiction, as when the state itself brings a federal suit or removes a
case from state to federal court,” In re Deposit Ins. Agency, 482 F.3d 612, 617 (2d Cir.
2007). Second, “Congress by statute may abrogate state immunity.” Id.; see Will, 491
U.S. at 66 (“The Eleventh Amendment bars such suits unless the State has waived its
immunity, or unless Congress has exercised its undoubted power under § 5 of the
Fourteenth Amendment to override that immunity.” (citation omitted)).
These two exceptions do not apply here. Vermont has not waived its immunity
through an express declaration. See Thompson, 949 F. Supp. 2d at 572 (“Vermont has
not waived its sovereign immunity under § 1983.” (citing 12 V.S.A. § 5601(g) and noting
that the “Vermont Tort Claims Act reserves Eleventh Amendment immunity for all
claims not specifically waived”)). And the State has not invoked federal jurisdiction, as it
did not initiate this case or remove it to federal court. Moreover, Congress has not
abrogated Vermont’s immunity by statute. See Muhammad v. Gold, No. 1:05–CV–146,
2007 WL 3088133, at *2 (D. Vt. Oct. 23, 2007) (“There is no indication in 42 U.S.C. §
1983 that Congress intended to abrogate state sovereign immunity, and the Supreme
Court has specifically held that Congress did not intend to override well-established
immunities such as state sovereign immunity when it enacted § 1983.”); see also Quern
v. Jordan, 440 U.S. 332, 340–41 (1979).
Third, under the Ex parte Young exception to the sovereign immunity doctrine,
“[a] plaintiff may avoid the Eleventh Amendment bar to suit and proceed against
individual state officers, as opposed to the state, in their official capacities, provided that
[the] complaint (a) ‘alleges an ongoing violation of federal law’ and (b) ‘seeks relief
properly characterized as prospective.’” In re. Deposit Ins., 482 F.3d at 618 (quoting
Verizon Md. Inc. v. Pub. Serv. Comm’n of Md., 535 U.S. 635, 645 (2002)); see In re
Dairy Mart Convenience Stores, Inc., 411 F.3d 367, 372 (2d Cir. 2005); Ex parte Young,
209 U.S. 123, 154 (1908). “In determining whether the doctrine of Ex parte Young
avoids an Eleventh Amendment bar to suit, a court need only conduct a straightforward
inquiry into whether [the] complaint alleges an ongoing violation of federal law and
seeks relief properly characterized as prospective.” Verizon, 535 U.S. at 645 (alteration
in original) (internal quotation marks omitted). However, “the state officer against whom
a suit is brought ‘must have some connection with the enforcement of the act’ that is in
continued violation of federal law.” In re: Dairy Mart, 411 F.3d at 372–73 (quoting Ex
parte Young, 209 U.S. at 154).
Here, Brewer seeks prospective injunctive relief in the form of: (1) “[e]njoinment
and estoppel by Officer Hashim, the State of Vermont, its agents and employees[,] from
the further use and abuse of fraudulent data rife with material misrepresentations
concerning [Brewer]”; (2) “[e]nactment of NYCPL 160.60 stipulating that when an
individual wins on direct appeal[,] as [Brewer] did [here], a person’s legal status is reset
to where it was prior to arrest”; and (3) “[r]eturn of [Brewer’s] firearm.” (Doc. 1 at 10,
¶¶ 63–65.) Nonetheless, Hashim contends that the Ex parte Young exception is
inapplicable because Brewer “does not identify any ongoing violation of federal law as to
which this Court could grant prospective injunctive relief,” and because, “while Brewer
seeks the return of his handgun, he does not allege that Hashim is in any way connected
with the failure to return [the] gun or [its] continued retention.” (Doc. 17 at 6.) In
response, Brewer contends that Hashim’s connection to the alleged injuries can be
established by the following facts:5 the “Law Supplemental Narrative” can be construed
to establish Hashim as the author of the relevant press release and as the VSP officer who
had supervision over the subject vehicle stop; Brewer’s property receipt listed Hashim as
the “Case Officer” in charge of the case; and both the Rutland Herald and the Brattleboro
Reformer “offer[ed] . . . versions of the [subject vehicle] stop [which included] Officer
Hashim[ as having] supervision [over the stop].” (Doc. 21 at 8.) Furthermore, Brewer
contends that Hashim’s knowledge that Brewer’s prior conviction had been successfully
overturned was revealed by the fact that the receipt for his seized gun indicated that the
reason for the seizure was “Safekeeping” rather than “Court Evidence.” (Id. at 9.)
Brewer’s argument is unpersuasive. First, Brewer has not plausibly alleged that
Hashim’s involvement in the vehicle stop and subsequent conduct related thereto is
“ongoing.” Verizon, 535 U.S. at 645. The Complaint alleges only that Hashim used
inaccurate information in seizing Brewer’s firearm during the vehicle stop and thereafter
authored a false press release about the stop. (See Doc. 1 at 4–6.) Insofar as the
Complaint raises an argument that the continued retention of Brewer’s firearm constitutes
an ongoing violation of federal law, Brewer has not alleged that Hashim is connected
with that retention. Moreover, if the Complaint alleges a violation of state law with
Although Brewer concludes this section of his Opposition by stating that “[p]ersonal
involvement defeats a defense of ‘qualified immunity’” (Doc. 21 at 9), Hashim has not asserted a defense
of qualified immunity (see generally Docs. 17, 23). Brewer’s argument is, however, liberally construed
to apply here.
respect to the retention of Brewer’s firearm, a federal court may not “instruct state
officials on how to conform their conduct to state law.” See Pennhurst State Sch. &
Hosp. v. Halderman, 465 U.S. 89, 106 (1984) (concluding that the Ex parte Young
exception is “inapplicable in a suit against state officials on the basis of state law”).
Finally, Brewer’s arguments relating to the Rutland Herald and the Brattleboro Reformer
fail to allege any unlawful conduct on behalf of Hashim.
For these reasons, Brewer’s claims against Hashim in his official capacity are
barred by Eleventh Amendment immunity, and Hashim’s Motion to Dismiss is
GRANTED with respect to these claims.
Individual Capacity Claims
Next, Hashim urges that all claims against him in his individual capacity should be
dismissed on the grounds that they are “time-barred because they are more than three
years old.” (Doc. 17 at 7.) This case was commenced with Brewer’s filing of the
Complaint on December 9, 2016. (Doc. 1.) Hashim argues that each of the claims
alleged therein accrued more than three years earlier, on April 8, 2013: the date of the
vehicle stop, seizure of Brewer’s firearm, and press release regarding the incident. (Doc.
17 at 7.) Alternatively, Hashim asserts that the Complaint fails to state a viable claim
against him in his individual capacity and should be dismissed on that ground. (Id.)
Finally, with respect to Brewer’s state law individual capacity claims, Hashim argues
that, “even if [Brewer] had sufficiently pled state-law claims that were not time-barred,
this Court should decline to exercise jurisdiction over them absent allegations adequate to
establish diversity jurisdiction or any viable federal claims.” (Id. at 10 n.5.)
Statute of Limitations: Relation Back Doctrine and Tolling
Dismissal of a complaint on the grounds that the relevant statute of limitations has
run is appropriate on a motion to dismiss “only if a complaint clearly shows the claim is
out of time.” Riley v. Brook, Case No. 2:15-cv-00150, 2015 WL 7572308, at *2 (D. Vt.
Nov. 24, 2015) (citing Harris v. City of New York, 186 F.3d 243, 250 (2d Cir. 1999)).
Further, “[t]he burden of establishing a statute-of-limitations defense rests with the party
pleading it.” Beaupre v. O’Connor, No. 2:14-CV-256, 2015 WL 5530180, at *2 (D. Vt.
Sept. 18, 2015) (quoting Agency of Nat. Res. v. Towns, 724 A.2d 1022, 1025 (Vt. 1998)).
In opposition to Hashim’s statute-of-limitations argument, Brewer asserts that,
because “[t]his suit is the progeny of Brewer v[.] Rutland Herald[,] with a similar fact set
and defendant,” it is “protected by [the] Relat[ion] Back Doctrine.” (Doc. 21 at 8
(citation omitted).) But the relation back doctrine applies only to amended pleadings in
the same action. The Northern District of New York explained:
The relation back doctrine has application only in instances where an original
pleading is amended. If such an amendment satisfies the requirements of
[Federal Rule of Civil Procedure] 15(c), the amended pleading “relates back”
to the original pleading for statute of limitations purposes. The amendment
does not, however, relate back to any prior proceedings which are not part
of the action in question.
Rayo v. State of New York, 882 F. Supp. 37, 40 (N.D.N.Y. 1995) (emphasis added).
Therefore, “[a] [p]laintiff cannot . . . properly argue that his . . . claim relates back to any
separate action he initiated [earlier],” Lucchesi v. Experian Info. Solutions, Inc., 226
F.R.D. 172, 175 (S.D.N.Y. 2005), as “[t]he Federal Rules of Civil Procedure
contemplate the relation back of pleadings only in the context of a single proceeding,”
id. at 174–75 (emphasis added). See Palatkevich v. Choupak, 152 F. Supp. 3d 201, 226
(S.D.N.Y. 2016) (“the concept of relation back permits parties to modify claims already
filed, not to file entirely new lawsuits”). The Second Circuit has clearly rejected
application of the relation back doctrine to pleadings filed in separate actions. See
Reliance Ins. Co. v. PolyVision Corp., 292 F. App’x 106, 107–08 (2d Cir. 2008); see also
Warren v. Garvin, 219 F.3d 111, 114 (2d Cir. 2000).
Applied here, Brewer cannot bring this action within the applicable statute-oflimitations period by claiming that his Complaint, filed in December 2016, relates back to
the date he filed the Complaint in Brewer v. Rutland Herald et al., a separate action filed
in the Northern District of New York in 2014 and dismissed in August 2016. See
Brewer, No. 3:14-cv-958, ECF No. 1, 2016 WL 4435232; see also Gonzalez v. Portfolio
Recovery Assocs., LLC, Civ. No. 13-1350 (KM), 2013 WL 5334075, at *2 (D.N.J. Sept.
20, 2013) (“[W]hen an action is dismissed without prejudice, a separate, subsequently
filed action does not relate back to the date of the first action’s filing.”). Further, none of
the applicable statutes of limitations (discussed individually below) were tolled during
the period between when Brewer filed his first action against Hashim and other
defendants in July 2014, and when the claims against Hashim were dismissed in that case
in August 2016. See Brewer, No. 3:14-cv-958, ECF Nos 1, 89, 2016 WL 4435232, at *1
n.1. “As a general rule, statutes of limitations are not tolled by bringing an action that is
later voluntarily dismissed. Nor does the dismissal itself toll the running of the
limitations period.” Elgendy v. City of New York, No. 99 CIV. 5196(JGK), 2000 WL
1119080, at *5 (S.D.N.Y. Aug. 7, 2000) (citation omitted). “In fact, unless there is a
specific statute to the contrary, when an action is voluntarily dismissed, a party cannot
deduct from the statute of limitations the time during which the action was pending.” Id.6
Section 1983 Claims: Accrual of Statute of Limitations and Merits
“Because 42 U.S.C. § 1983 contains no express time limit for bringing claims, the
Supreme Court directs courts to apply the statute of limitations applicable to personal
injury claims in the state in which the tort is alleged to have occurred.” Vaden v.
Connecticut, 557 F. Supp. 2d 279, 283 (D. Conn. 2008) (citing Wilson v. Garcia, 471
U.S. 261, 280 (1985)); see Hogan v. Fischer, 738 F.3d 509, 517 (2d Cir. 2013); Pearl v.
City of Long Beach, 296 F.3d 76, 79 (2d Cir. 2002). The United States Supreme Court
explained in Wallace v. Kato, 549 U.S. 384, 387 (2007):
Section 1983 provides a federal cause of action, but in several respects . . .
federal law looks to the law of the State in which the cause of action arose.
This is so for the length of the statute of limitations: It is that which the State
provides for personal-injury torts.
Therefore, § 1983 actions that are filed in Vermont, as here, are subject to Vermont’s
three-year statute of limitations for personal injury actions. See 12 V.S.A. § 512(4).
However, “the accrual date of a § 1983 cause of action is a question of federal law
that is not resolved by reference to state law.” Wallace, 549 U.S. at 388 (first emphasis
added); see Spak v. Phillips, 857 F.3d 458, 462–63 (2d Cir. 2017); Kaiser v. Cahn, 510
F.2d 282, 285 (2d Cir. 1974). Under federal law, accrual occurs “when the plaintiff has a
complete and present cause of action, that is, when the plaintiff can file suit and obtain
As noted above, Brewer’s earlier claims against Hashim were essentially “voluntarily
dismissed,” as Brewer requested that Hashim not be served, which led to the dismissal of Brewer’s claims
for failure to timely serve. See Brewer, 2016 WL 4435232, at *1 n.1, *6.
relief.” Wallace, 549 U.S. at 388 (citations and internal quotation marks omitted). Stated
differently, the claim accrues and thus the statute of limitations begins to run, “when the
wrongful act or omission results in damages[,] . . . even though the full extent of the
injury is not then known or predictable.” Id. at 391 (quoting 1 C. Corman, Limitation of
Actions § 7.4.1, pp. 526–27 (1991) (footnote omitted)). The Second Circuit explained
that accrual occurs “when the plaintiff knows or has reason to know of the injury which is
the basis of his action.” Singleton v. City of New York, 632 F.2d 185, 191 (2d Cir. 1980)
(internal quotation marks omitted); see Holiday v. Martinez, Docket No. 02-7848, 2003
WL 21242641, at *2 (2d Cir. May 29, 2003) (three-year statute of limitations applies to §
1983 due process claim, which accrues when plaintiff knows or has reason to know of the
injury which is the basis of his action).
The timeliness of each of Brewer’s § 1983 individual capacity claims––including
the procedural due process claim and the privileges and immunities claim––is addressed
below, along with the substantive merit of these claims.
Procedural Due Process Claim
Brewer’s procedural due process claim appears to be primarily directed at the
seizure process during and after the subject April 2013 vehicle stop. (See Doc. 1 at 9.)
Brewer claims that he “had a right to a court hearing where he could explain his
circumstances, and possibly retrieve his property,” and that he “could have produced a
docket report he carried in his car to show conclusively [that] his conviction had been
vacated.” (Id., ¶ 53.)
The Complaint reveals that Brewer became aware of the seizure of his firearm on
April 8, 2013, the date of the traffic stop, when “[p]olice . . . took [his] weapon” from the
glove compartment of his car and provided a “weapons receipt” regarding the transaction
to him. (Id. at 5, ¶ 19.) Given the above law, he had until three years after the date of the
seizure––or until April 8, 2016––to file this lawsuit. But Brewer did not file the suit until
approximately eight months after that date, in December 2016. Brewer’s procedural due
process claim based on the seizure of his firearm is thus time-barred. Brewer’s due
process claim based on the press release, however, is not time-barred because the
Complaint could be read liberally to indicate that Brewer did not become aware of the
statements made therein until June 2014 (within three years of the December 2016 filing
of the Complaint), when Attorney Brown sent him a letter including the document.7 (Id.)
Nonetheless, Brewer has not pled sufficient facts to support an individual capacity
procedural due process claim against Hashim. “The Fourteenth Amendment’s Due
Process Clause protects persons against deprivations of life, liberty, or property[ without
due process of law,] and those who seek to invoke its procedural protection must
establish that one of these interests is at stake.” Graziano v. Pataki, 689 F.3d 110, 114
(2d Cir. 2012) (quoting Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). “[S]tandard
analysis under [the Due Process Clause] proceeds in two steps: We first ask whether there
A less liberal, and more reasonable, reading of the Complaint indicates that Brewer became
aware of the statements made in the press release within days of the April 2013 vehicle stop, making the
claim time-barred. In relevant part, the Complaint states: “Shortly after leaving Vermont, [Brewer] began
seeing newspaper stories on Google published by two area newspapers purporting to offer accounts of
[the] highway stop.” (Doc. 1 at 6, ¶ 31.) But given the ambiguity of the phrase “[s]hortly after,” and
because the Complaint does not plead on what date Brewer “left Vermont,” the Court does not rest its
decision on these grounds.
exists a liberty or property interest of which a person has been deprived, and if so we ask
whether the procedures followed by the State were constitutionally sufficient.”
Swarthout v. Cooke, 562 U.S. 216, 219 (2011). Thus, in evaluating due process claims,
“[t]he threshold issue is always whether the plaintiff has a property or liberty interest
protected by the Constitution.” Perry v. McDonald, 280 F.3d 159, 173 (2d Cir. 2001)
(alteration in original) (internal quotation marks omitted).
Applying this law here, the Complaint does not adequately plead a procedural due
process claim because it does not allege that: (1) Brewer had a property or liberty interest
in the issuance of an error-free press release regarding the April 2013 vehicle stop; (2)
Brewer was entitled to some pre- or post-deprivation process that he did not receive in
connection with the seizure of his handgun during the subject vehicle stop; or (3) Hashim
was responsible for the alleged failure to return the handgun to Brewer. (See Doc. 17 at
8; Doc. 23 at 4.) Moreover, despite Brewer’s allegation that the press release contains
false statements, including most significantly the statement that Brewer “has a
conviction” (Doc. 1 at 8, ¶ 49),8 the Complaint itself states that in March 2014, Brewer
was told by the “Director of the FBI’s Biometric Division” that a “conviction remained
on his record” in the “FBI’s criminal records database” (id. at 7, ¶ 39). As noted above,
the Complaint alleges that Brewer’s prior conviction “was set aside on appeal, resulting
in no conviction” (id. at 5, ¶ 18), but makes no further allegations supporting this claim
and attaches a document from the Circuit Court of Mobile County, Alabama that in fact
Specifically, as noted earlier, the press release states that Brewer “has a prior conviction of
domestic assault which, under federal law, prohibits him from possessing a firearm.” (Doc. 17-1 at 2.)
contests it, indicating that Brewer was “on probation,” was to have no contact with the
victim, and was to pay costs within six months (id. at 12; see also Doc. 26). Although the
words “SET ASIDE” are handwritten on the top of this document (id.), it is unclear who
or what entity wrote those words and what their legal significance is.
Furthermore, Brewer attaches Exhibits to his supplemental brief filed after the
May 23, 2017 hearing that reference his arrest for and conviction of a domestic violence
offense in Alabama, which would disqualify him from possessing a firearm under 18
U.S.C. § 922(g)(9). (Doc. 29 at 18, “Exhibit A[:] Lower Court Imposes [Two-Y]ear
Probation”; id. at 19, “Exhibit B[:] Appellate Court Sets Aside Conviction, Downward
Modifies Probation to [Six] Months.”) In yet another document recently submitted to the
Court by Brewer, he contends that, in a June 7, 2017 letter from the Section Chief of the
FBI’s Criminal Justice Information Services Division, he was informed that “his FBI
record has been updated to show [that] a conviction for domestic violence was dismissed
on August 3, 2006.” (Doc. 32 at 2, ¶ 6; see id. at 3.) This does not affect the Court’s
analysis here, however, as Hashim cannot have been required to know about this June
2017 letter back around the time when he was performing the vehicle stop of Brewer in
April 2013; and Brewer has not indicated where, if anywhere, this alleged “dismiss[al]”
was recorded as of the date of the vehicle stop and whether or how Hashim could have
known of it at that time.
The Complaint also fails to allege that Hashim was personally involved in the
VSP’s alleged failure to return Brewer’s firearm to him. (See Doc. 23 at 4.) “It is well
settled in this Circuit that personal involvement of defendants in alleged constitutional
deprivations is a prerequisite to an award of damages under § 1983.” Spavone v. N.Y.
State Dep’t of Corr. Servs., 719 F.3d 127, 135 (2d Cir. 2013) (quoting Colon v. Coughlin,
58 F.3d 865, 873 (2d Cir. 1995)). The Second Circuit instructed as follows regarding
how to demonstrate the personal involvement of a supervisory defendant like Hashim:
The personal involvement of a supervisory defendant may be shown by
evidence that: (1) the defendant participated directly in the alleged
constitutional violation, (2) the defendant, after being informed of the
violation through a report or appeal, failed to remedy the wrong, (3) the
defendant created a policy or custom under which unconstitutional practices
occurred, or allowed the continuance of such a policy or custom, (4) the
defendant was grossly negligent in supervising subordinates who committed
the wrongful acts, or (5) the defendant exhibited deliberate indifference to
the rights of inmates by failing to act on information indicating that
unconstitutional acts were occurring.
Colon, 58 F.3d at 873. Additionally, personal involvement “requires a showing of more
than the linkage in the prison chain of command; the doctrine of respondeat superior does
not apply.” Ayers v. Coughlin, 780 F.2d 205, 210 (2d Cir. 1985) (citing Williams v.
Vincent, 508 F.2d 541, 546 (2d Cir. 1974)).
The Complaint does not adequately plead Hashim’s personal involvement in the
seizure or continued retention of Brewer’s firearm. Moreover, the Complaint does not
allege, nor could it, that Brewer had a property or liberty interest in either the issuance of
an error-free press release or a particular pre- or post-deprivation process that he did not
receive. Therefore, Hashim’s Motion to Dismiss is GRANTED with respect to Brewer’s
procedural due process claims against Hashim in his personal capacity.
Privileges and Immunities Claim
Next, Hashim argues that the Complaint fails to adequately state a claim based on
an alleged violation of the Privileges and Immunities Clause, and that the claim is barred
by the applicable three-year statute of limitations. Brewer’s claim under the Privileges
and Immunities Clause is that “Officer Hashim’s Press Release Report[, which denied
him a hearing or other court action, constituted] . . . oppressive treatment because a
Vermont resident similarly situated would have received a court date.” (Doc. 1 at 9,
¶ 52.) In other words, Brewer claims that, as a resident of a different state, he was treated
differently than a resident of Vermont would have been treated after the traffic stop
because a Vermont resident would have been given the opportunity to participate in a
hearing presumably regarding both the vehicle stop and the seizure of his firearm.
Hashim argues that the claim fails because “the Supreme Court has long held that the
provisions of the Privileges and Immunities Clause were essentially nullified by its
decision in the Slaughter-House Cases, 83 U.S. 36 (1872).” (Doc. 17 at 8.)
It is unclear when the statute of limitations accrued on Brewer’s Privileges and
Immunities Clause claim, and Hashim has failed to develop this argument. (See
generally Docs. 17, 23, 30.) In any event, the Court finds that the claim is not adequately
pled. The Privileges and Immunities Clause provides that “[t]he Citizens of each State
shall be entitled to all Privileges and Immunities of Citizens in the several States.” U.S.
Const. art. IV, § 2. The object of the Clause is to “‘strongly . . . constitute the citizens of
the United States one people,’ by ‘plac[ing] the citizens of each State upon the same
footing with citizens of other States, so far as the advantages resulting from citizenship in
those States are concerned.’” Lunding v. N.Y. Tax Appeals Tribunal, 522 U.S. 287, 296
(1998) (alterations in original) (quoting Paul v. Virginia, 17 U.S. 168 (1868)).
There are two steps in an inquiry under the Privileges and Immunities Clause. The
plaintiff must first “demonstrate that the state has burdened nonresident activity that is
‘sufficiently basic to the livelihood of the Nation as to fall within the purview of the
Privileges and Immunities Clause.’” Schoenefeld v. Schneiderman, 821 F.3d 273, 279
(2d Cir. 2016) (quoting Supreme Court of Virginia v. Friedman, 487 U.S. 59, 64 (1988)).
The Second Circuit has emphasized that “constitutionally protected privileges and
immunities are burdened ‘only when [challenged] laws were enacted for [a] protectionist
purpose.’” Schoenefeld, 821 F.3d at 279 (alterations in original) (quoting McBurney v.
Young, 133 S. Ct. 1709, 1715 (2013)). Further, a mere “facial distinction” between
residents and nonresidents is insufficient to support an inference of protectionist purpose;
courts should instead give weight to the purpose of the law. Id at 282. If this showing is
made, the state must then demonstrate that “substantial reasons exist for the
discrimination and the degree of discrimination bears a sufficiently close relation to such
reasons.” Supreme Court of Virginia, 487 U.S. at 67.
The Supreme Court has held that the “right to travel” is protected under the
Privileges and Immunities Clause, as it is “firmly embedded in our jurisprudence” and “a
virtually unconditional personal right.” Saenz v. Roe, 526 U.S. 489, 498 (1999) (internal
quotation marks omitted). But the Complaint does not identify a state law or municipal
ordinance that may have been enacted for a protectionist purpose and was utilized to
Brewer’s detriment with respect to the vehicle stop or seizure of his firearm. Therefore,
Hashim’s Motion to Dismiss is GRANTED with respect to Brewer’s claims against
Hashim in his personal capacity under the Privileges and Immunities Clause.
Computer Fraud Claims under the CFAA and SCA
Next, the Court considers the Complaint’s allegations that Hashim engaged in
computer fraud in violation of the CFAA and SCA. (Doc. 1 at 8–9.) The CFAA
criminalizes “intentionally access[ing] a computer without authorization or exceed[ing]
authorized access, and thereby obtain[ing] . . . information from any protected computer,”
18 U.S.C. § 1030(a)(2)(C), and “intentionally access[ing] a protected computer without
authorization, and as a result of such conduct, caus[ing] damage and loss,” id. §
1030(a)(5)(C). See Sewell v. Bernardin, 795 F.3d 337, 340 (2d Cir. 2015); Penrose
Comput. Marketgroup, Inc. v. Camin, 682 F. Supp. 2d 202, 207 (N.D.N.Y. 2010). The
statute also provides a civil cause of action to “[a]ny person who suffers damage or loss
by reason of a violation of this section.” 18 U.S.C. § 1030(g). “Damage” is defined as
“any impairment to the integrity or availability of data, a program, a system, or
information.” Id. § 1030(e)(8).
Similarly, the SCA makes it a crime to “(1) intentionally access[ ] without
authorization a facility through which an electronic communication service is provided;
or (2) intentionally exceed[ ] an authorization to access that facility; and thereby obtain[
], alter[ ], or prevent[ ] authorized access to a wire or electronic communication while it is
in electronic storage in such system.” 18 U.S.C. § 2701(a); see Sewell, 795 F.3d at 340.
As with the CFAA, the SCA establishes a civil cause of action, providing that “any . . .
person aggrieved by any violation of this chapter in which the conduct constituting the
violation is engaged in with a knowing or intentional state of mind” may file suit. 18
U.S.C. § 2707(a).
Hashim correctly notes that a civil action under either the CFAA or the SCA is
subject to a two-year statute of limitations. (Doc. 17 at 10.) See Sewell, 795 F.3d at 340.
Specifically, to be timely under the CFAA, a civil claim must be filed “within 2 years of
the date of the act complained of or the date of the discovery of the damage.” 18 U.S.C.
§ 1030(g). And a civil action under the SCA must be commenced no “later than two
years after the date upon which the claimant first discovered or had a reasonable
opportunity to discover the violation,” 18 U.S.C. § 2707(f), meaning, “the limitations
period begins to run when the plaintiff discovers that, or has information that would
motivate a reasonable person to investigate whether, someone has intentionally accessed
the ‘facility through which an electronic communication service is provided’ and thereby
obtained unauthorized access to a stored electronic communication,” Sewell, 795 F.3d at
340 (quoting 18 U.S.C. § 2701(a)).
Applied here, the statute of limitations under the CFAA would have run within
two years of either the date of the act Brewer complains of or the date of Brewer’s
discovery of the damage under the Act. And under the SCA, the statute would have run
within two years of the date Brewer discovered or had a reasonable opportunity to
discover a violation under the Act. Affixing the accrual date at the latest date possible––
June 4, 2014, the date when the Complaint alleges Attorney Brown sent Brewer a copy of
the press release (see Doc. 1 at 5, ¶ 22)––Brewer’s filing of the Complaint in December
2016 was beyond the two-year limitations period and thus too late.
Even if the Complaint had been filed within the applicable two-year period, the
computer fraud claims fail to state a claim, as the Complaint makes no allegations to
support application of either the CFAA or the SCA against Hashim. For example, there
are no allegations that Hashim intentionally accessed, without authorization, a “facility
through which an electronic communication service is provided,” as required under the
SCA. 18 U.S.C. § 2701(a)(1). Nor are there allegations that Hashim “intentionally
accesse[d] a computer without authorization or exceed[ed] authorized access, and thereby
obtain[ed] . . . information from any protected computer,” as required under the CFAA.
18 U.S.C. § 1030(a)(2)(C).
For these reasons, Hashim’s Motion to Dismiss is GRANTED with respect to
Brewer’s computer fraud claims against Hashim in his personal capacity.
State Law Fraud and Libel Claims
Having dismissed each of Brewer’s federal claims against Hashim either for being
untimely filed or for failing to state a claim under Federal Rule of Civil Procedure
12(b)(6), as discussed above, all that remains are Brewer’s state law fraud and libel
claims against Hashim. (See Doc. 1 at 8–10.) Under the fraud claim, Brewer alleges that
Hashim’s statement that Brewer “‘has a conviction’” in the press release about the
subject vehicle stop, “was a fraud because the conviction was vacated years earlier on
direct appeal.” (Id. at 8, ¶ 49.) Under the libel claim, Brewer alleges that the press
release makes various false allegations, including that Brewer was convicted of domestic
violence and violating federal gun laws; was published by the Rutland Herald, the
Brattleboro Reformer, and various online sources; and caused Brewer to “experience
shame and disgrace, ridicule, contempt, suspicion[,] and added scrutiny by friends and
family, as well as physical, emotional, and psychological distress, in addition to property
loss in Vermont.” (Id. at 10, ¶ 59.) Brewer further alleges that the damage to his
reputation “is continuous and permanent” and has frustrated his attempts to seek
employment. (Id., ¶ 60.)
In any civil action in which original federal jurisdiction is established, “the district
courts shall have supplemental jurisdiction over all other claims that are so related to
claims in the action within such original jurisdiction that they form part of the same case
or controversy.” 28 U.S.C. § 1367(a). A court may decline to exercise supplemental
jurisdiction over state law claims, however, if the court “has dismissed all claims over
which it has original jurisdiction.” Id. § 1367(c)(3); see Matican v. City of New York, 524
F.3d 151, 154–55 (2d Cir. 2008) (“[I]f [the plaintiff] has no valid claim under § 1983
against any defendant, it is within the district court’s discretion to decline to exercise
supplemental jurisdiction over the pendent state-law claims.”).
Applying this law here, the Court declines to exercise supplemental jurisdiction
over Brewer’s state law claims. The general practice in the Second Circuit is that “if a
plaintiff’s federal claims are dismissed before trial, the state claims should be dismissed
as well.” Brzak v. United Nations, 597 F.3d 107, 113–14 (2d Cir. 2010) (internal
quotation marks omitted); see Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7
(1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the
balance of factors to be considered under the pendent jurisdiction doctrine—judicial
economy, convenience, fairness, and comity—will point toward declining to exercise
jurisdiction over the remaining state-law claims.”). Thus, Hashim’s Motion to Dismiss is
GRANTED with respect to Brewer’s state law claims of fraud and libel.
Leave to Amend
Where a pro se complaint fails to state a cause of action, the court generally
“should not dismiss without granting leave to amend at least once when a liberal reading
of the complaint gives any indication that a valid claim might be stated.” Cuoco v.
Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (internal quotation marks omitted). An
opportunity to amend is not required, however, where “[t]he problem with [the
complaint] is substantive,” such that “better pleading will not cure it” and thus
amendment is “futile.” Id. (a “futile request to replead,” even by a pro se litigant,
“should be denied”); see Ellis v. Chao, 336 F.3d 114, 127 (2d Cir. 2003) (“leave to
amend a complaint need not be granted when amendment would be futile”). An
amendment is “futile” if the amended pleading would not withstand a motion to dismiss.
See Jones v. Phelps Corp., No. 3:14–cv–84 (GLS/DEP), 2014 WL 2195944, at *3
(N.D.N.Y. May 22, 2014). Given the facts alleged in the Complaint, and for the reasons
discussed above,9 the Court finds that amendment would be futile, and thus Brewer is not
granted leave to file an amended complaint.
For these reasons, Hashim’s Motion to Dismiss (Doc. 17) is GRANTED and the
Complaint (Doc. 1) is DISMISSED without leave to amend. Given this ruling, Brewer’s
It is also noteworthy that this is at least Brewer’s second lawsuit against Hashim involving the
April 2013 vehicle stop and thus his second chance to adequately plead the claims alleged in the
Complaint. See Brewer, 2016 WL 4435232. In fact, Brewer himself states in his “Supplementary Filing
in Support of . . . May 23 Court Appearance” that this is his third lawsuit against Hashim which
“feature[s] the April 8, 2013 highway stop.” (Doc. 29 at 16.) Brewer asserts: “The claims put forward [in
this lawsuit and two earlier lawsuits] arise out of the same set of facts.” (Id.)
pending Motion to Set Aside Forfeiture (Doc. 10) and Amended Motion to Set Aside
Forfeiture; to Cure Improper Service (Doc. 14) are DENIED as moot. The Clerk of
Court is directed to enter judgment in favor of Defendant Hashim.
Dated at Burlington, in the District of Vermont, this 27th day of June, 2017.
/s/ John M. Conroy
John M. Conroy
United States Magistrate Judge
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