Aguiar v. Carter et al
Filing
115
OPINION AND ORDER granting 46 Motion to Dismiss (current AUSA dfts); granting 63 Motion to Dismiss for Failure to State a Claim (Myrick); granting 84 Motion to Dismiss for Failure to State a Claim (Laudete); granting 86 Motion to Dismiss for Failure to State a Claim (Doherty); granting 94 Motion to Dismiss (DEA dfts); granting 99 Motion to Dismiss (Hatch). The claims against thesedefendants are dismissed without leave to amend. The only known dfts remaining in the case are Michael Morris and John Lewis. Discovery as to all remaining parties shall proceed forthwith. Signed by Judge William K. Sessions III on 8/17/2018.
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
STEPHEN AGUIAR,
)
)
Plaintiff,
)
)
v.
)
)
RICHARD CARTER, JUSTIN
)
COUTURE, JARED HATCH,
)
ANDREW LAUDATE, MICHAEL
)
MORRIS, JOHN LEWIS, UNKNOWN
)
US DOJ GPS CONTRACTOR,
)
UNKNOWN GOVERNMENT AGENTS,
)
UNKNOWN GOVERNMENT EMPLOYEES, )
VERIZON WIRELESS, TRACFONE,
)
UNKNOWN COURT CLERKS,
)
UNKNOWN LEGAL ASSISTANTS,
)
EUGENIA A.P. COWLES, WENDY
)
FULLER, TIMOTHY DOHERTY,
)
PAUL J. VAN DE GRAAF,
)
KATHERINE MYRICK,
)
)
Defendants.
)
File No. 2:17-cv-121
OPINION AND ORDER
Plaintiff Stephen Aguiar, proceeding pro se, is currently
serving a 30-year prison term as a result of his 2011 conviction
for drug distribution and conspiracy.
In the instant civil
action, Aguiar claims that various parties who were involved in
the investigation and prosecution of his criminal case violated
his federal rights.
Defendants Richard Carter, Justin Couture,
Jared Hatch, Andrew Laudate, Eugenia Cowles, Wendy Fuller,
Timothy Doherty, Paul Van de Graaf, and Katherine Myrick have
filed motions to dismiss.
Defendants Verizon Wireless and
TracFone have already been dismissed.
The moving defendants contend, among other things, that
Aguiar’s claims are untimely, barred by collateral estoppel, and
should be dismissed on the basis of qualified immunity.
Defendants also assert protection under the Supreme Court’s
rulings in Heck v. Humphrey, 512 U.S. 477 (1994) and Ziglar v.
Abbasi, 137 S. Ct. 1843 (2017).
For the reasons set forth below,
the motions to dismiss are granted.
Factual Background
Aguiar has been convicted of federal drug and/or firearm
offenses three times in the District of Vermont: first in 1995,
again in 2001, and most recently in 2011.
He is currently suing
nine current and former named federal employees, in addition to
several unknown defendants, claiming constitutional and statutory
violations related to his 2011 conviction.
In 2009, Aguiar was indicted by a federal grand jury for
conspiracy to distribute cocaine and for distribution of cocaine.
In March 2010, his attorney filed a motion to suppress: (1) wire
communications intercepted pursuant to Title III warrants issued
by the Court on June 3, 2009, June 18, 2009, July 2, 2009, and
July 21, 2009, arguing that the government did not comply with
the requirements of Title III; (2) evidence discovered after an
April 3, 2009 order authorized a pen register and trap and trace
devices, arguing that the probable cause affidavit was
misleading; (3) evidence of data analysis of Aguiar’s phone,
arguing a Fourth Amendment violation; and (4) evidence seized by
2
installing GPS tracking devices on Aguiar’s vehicles, again
arguing a Fourth Amendment violation.
The Court denied the
motion to suppress initially and upon reconsideration.
After an eleven-day trial, the jury convicted Aguiar of one
count of conspiracy to distribute heroin and five kilograms or
more of cocaine, and six counts of distribution of cocaine.
Aguiar appealed his conviction.
On appeal, his arguments
included: (1) that the warrantless GPS tracking of his car
violated the Fourth Amendment; (2) that this Court erred in
denying him a Franks hearing regarding a discrepancy in an
affidavit supporting the April 3, 2009 pen register application;
(3) that the Court erred when it refused to suppress evidence
found pursuant to the warrantless search of Aguiar’s cell phone;
and (4) that the Court erred when it failed to hold an
evidentiary hearing based upon a missing page from the Title III
intercept memorandum for the July 2, 2009 application.
The
Second Circuit affirmed Aguiar’s conviction on December 13, 2013,
and denied rehearing.
United States v. Aguiar, 737 F.3d 251 (2d
Cir. 2013), cert. denied, 134 S. Ct. 400 (Oct. 20, 2014),
rehearing denied, 135 S. Ct. 886 (Dec. 15, 2014).
In September 2015, Aguiar filed a motion to vacate pursuant
to 28 U.S.C. § 2255, arguing ineffective assistance of counsel.
His Section 2255 motion claimed that defense counsel had failed:
(1) to argue that this Court lacked jurisdiction to authorize
3
installation of pen register and trap and trace devices and to
disclose records under Fed. R. Crim. P. 41; (2) to move for
suppression of evidence because the cell phones, wiretap
installations, and intercepted calls were rerouted and acquired
outside the Court’s territorial jurisdiction; (3) to move for
suppression of the Title III warrants under Franks, or to argue
that the government did not meet the necessity requirement under
18 U.S.C. § 2518; (4) to present sufficient exculpatory evidence
in arguing the motion to suppress evidence obtained pursuant to
the April 3, 2009 pen/trap order; (5) to make an appropriate
motion or objection when the government allegedly failed to
provide Aguiar with a complete copy of the June 3, 2009 and July
9, 2009 Title III applications, affidavits and orders; (6) to
argue outrageous government conduct when the government failed to
include a complete DOJ authorization memo before the Court signed
the July 2, 2009 Title III wiretap warrant; (7) to move the Court
to recuse itself with respect to arguments pertaining to the July
2, 2009 wiretap warrant; and (8) to argue on appeal that Aguiar
was denied a fair trial due to prosecutorial misconduct, insofar
as prosecutors allegedly withheld exculpatory GPS-related
discovery evidence.
Magistrate Judge Conroy issued a Report and
Recommendation recommending that the Section 2255 motion be
denied, and the Court accepted that recommendation.
Aguiar
appealed, and on July 18, 2017, the Second Circuit dismissed the
4
appeal, finding that Aguiar had not made a substantial showing of
the denial of a constitutional right.
The instant case accuses law enforcement officials and
prosecutors of violating Aguiar’s constitutional rights and
various statutory provisions in the course of his prosecution.
As defendants argue in their motions to dismiss, many of Aguiar’s
current argument echo the claims he has raised previously.
Discussion
I.
Legal Standard
Defendants contend that the Complaint fails to state a claim
upon which relief can be granted, and therefore move to dismiss
under Rule 12(b)(6).
“To survive a motion to dismiss pursuant to
Rule 12(b)(6), a complaint must contain sufficient factual
matter, accepted as true, to ‘state a claim for relief that is
plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)).
A claim is plausible on its face when it contains
sufficient factual content to “allow[ ] the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged.”
Id. (citing Twombly, 550 U.S. at 556).
Although “[t]he plausibility standard is not akin to a
‘probability requirement,’” pleading “facts that are ‘merely
consistent with’ a defendant’s liability” does not suffice to
establish plausibility.
Id. (citing and quoting Twombly, 550
5
U.S. at 556-57).
When, as here, the plaintiff is proceeding pro se, the Court
must construe the complaint liberally “to raise the strongest
arguments that [it] suggest[s].”
Pabon v. Wright, 459 F.3d 241,
248 (2d Cir. 2006) (quoting Burgos v. Hopkins, 14 F.3d 787, 790
(2d Cir. 1994)).
II.
Current Assistant United States Attorneys
Some of the individual defendants named in this case are no
longer employed by the federal government.
Current federal
employees include Assistant United States Attorneys Eugenia
Cowles, Paul Van de Graaf, and Wendy Fuller (“Current AUSA
Defendants”).
Those three defendants have filed a joint motion
to dismiss.
A.
Statute of Limitations
The Current AUSA Defendants first argue that Aguiar’s claims
are untimely.
17, 2017.
Aguiar filed his Complaint in this case on July
The statute of limitations for constitutional claims
against federal officials is the same as the state statute of
limitations for personal injury actions.
802 F.3d 212, 219-20 (2d Cir. 2015).
See Gonzalez v. Henry,
In Vermont, the statute of
limitations for a personal injury action is three years.
12
V.S.A. § 512(4).
Aguiar’s allegations focus on actions taken during the
investigation that occurred prior to his 2011 conviction.
6
If
Aguiar did not know of those actions prior to trial, the trial
itself revealed the intercepted communications and other law
enforcement tactics about which he now complains.
Accordingly,
absent any sort of tolling, Aguiar’s claims are time-barred.
Aguiar relies in part upon a provision in Vermont law, 12
V.S.A. § 551(a), which tolls limitations periods for tort actions
if the plaintiff is incarcerated when the cause of action
accrues.
The statute provides that “[w]hen a person entitled to
bring an action specified in this chapter is a minor, insane or
imprisoned at the time the cause of action accrues, such person
may bring such action within the times in this chapter
respectively limited, after the disability is removed.”
V.S.A. § 551(a).
12
Because the federal limitations period for
constitutional claims brought under 42 U.S.C. § 1983 tracks the
state rule for personal injury actions, this Court has held that
Vermont’s tolling provision applies to inmates bringing suit in
federal court.
See Bain v. Cotton, 2009 WL 1660051, at *1 (D.
Vt. June 12, 2009); see also Hardin v. Straub, 490 U.S. 536, 543
(1989) (affirming application of Michigan tolling statute to
Section 1983 action, reasoning that “a State reasonably might
conclude that . . . inmates who do not file may not have a fair
opportunity to establish the validity of their allegations while
they are confined”); Jones v. Kirchner, 835 F.3d 74, 82 (D.C.
Cir. 2016), cert. denied, 137 S. Ct. 1343 (2017) (applying
7
District of Columbia tolling provision for causes of action that
accrue while plaintiffs are imprisoned).
The government does not contest that Aguiar was incarcerated
prior to, and at the time of, his conviction.
The government
nonetheless argues that tolling should not apply because the
Vermont statute is inconsistent with federal policy.
law suggests otherwise.
The case
In Hardin, the Supreme Court determined
that “extending the time in which prisoners may seek recovery for
constitutional injuries . . . is consistent with § 1983’s
remedial purpose.”
490 U.S. at 544.
Although this case is
brought against federal actors, and is therefore a Bivens action
rather than a Section 1983 claim, “federal courts have typically
incorporated § 1983 law into Bivens actions.”
Tavarez v. Reno,
54 F.3d 109, 110 (2d Cir. 1995); see Bieneman v. City of Chicago,
864 F.2d 463, 469 (7th Cir. 1988) (“Actions under § 1983 and
those under [Bivens] are identical save for the replacement of a
state actor (§ 1983) by a federal actor (Bivens).
No wonder the
only . . . courts of appeals that have addressed questions
concerning limitations under Bivens have held that the rules used
for § 1983 suits will be applied in full force to Bivens cases”).
The government submits that the landscape shifted, however, when
the Supreme Court issued its decision in Abbasi.
In Abbasi, the Supreme Court commented on the limited scope
of the Bivens remedy.
137 S. Ct. at 1857.
8
Bivens allowed the
plaintiff, who claimed that he had been subjected to an unlawful
search and arrest, to proceed with a Fourth Amendment damages
claim against federal law enforcement agents despite the fact
that Congress had not provided for such a remedy.
389, 395–97.
403 U.S. at
Since that decision was rendered, the Supreme Court
has recognized a Bivens action in only three contexts: (1) an
unreasonable search and seizure in violation of the Fourth
Amendment, Bivens, 403 U.S. at 397; (2) employment discrimination
in violation of the Due Process Clause of the Fifth Amendment,
Davis v. Passman, 442 U.S. 228, 248-49 (1979), and (3) failure to
treat an inmate’s medical condition in violation of the Eighth
Amendment, Carlson v. Green, 446 U.S. 14, 19 (1980).
More recently, the Supreme Court made clear that it is
“reluctant to extend Bivens liability ‘to any new context or new
category of defendants.’”
Iqbal, 556 U.S. at 675 (quoting Corr.
Servs. Corp. v. Malesko, 534 U.S. 61, 68 (2001)).
In Abbasi, the
Supreme Court noted that “expanding the Bivens remedy is now a
disfavored judicial activity.”
137 S. Ct. at 1857.
The Supreme
Court further noted that “the analysis in the Court’s three
Bivens cases might have been different if they were decided
today,” and that the Bivens remedy should be largely restricted
to the “common and recurrent sphere” of the “search-and-seizure
context in which it arose.”
Id. at 1856-57.
The statute of limitations question presented here does not
9
seek to extend the Bivens remedy to a new context.
It instead
follows the well-established practice of incorporating Section
1983 rules into Bivens cases.
One such rule is the incorporation
of state law limitations periods, as well as applicable tolling
provisions.
Abassi does not speak to that practice, and does not
control this case.
The Court will therefore adhere to the State
of Vermont’s tolling provision for constitutional claims brought
by incarcerated litigants.
In addition to his constitutional claims, brought under
Bivens, Aguiar alleges that the Current AUSA Defendants violated
the Electronic Communications Privacy Act, 18 U.S.C. § 2510 et
seq. (“Wiretap Act”).
That statute provides its own statute of
limitations of two years “after the date upon which the claimant
first has reasonable opportunity to discovery the violation.”
U.S.C. 2520(e).
18
As noted above, the alleged violations in this
case were clear at Aguiar’s 2011 trial, and needed to be raised
within two years of that time.
This case was initiated in 2017.
Aguiar’s Wiretap Act claims (Count 14) are therefore barred as
untimely.
B.
Collateral Estoppel
The Current AUSA Defendants next argue for the application
of collateral estoppel, claiming that Aguiar has raised his
present allegations previously in the course of his conviction,
appeal, and Section 2255 filing.
10
Aguiar submits that the Current
AUSA Defendants are barred by the doctrine of unclean hands, and
that some of his claims are new.
Federal principles of collateral estoppel require that: “(1)
the identical issue was raised in a previous proceeding; (2) the
issue was actually litigated and decided in the previous
proceeding; (3) the party had a full and fair opportunity to
litigate the issue; and (4) the resolution of the issue was
necessary to support a valid and final judgment on the merits.”
Ball v. A.O. Smith Corp., 451 F.3d 66, 69 (2d Cir. 2006).
Collateral estoppel applies to civil rights lawsuits brought
pursuant to 42 U.S.C. § 1983.
(1980).
Allen v. McCurry, 449 U.S. 90, 101
The Second Circuit has also held that a party other than
the Government may assert collateral estoppel based on a criminal
conviction.
Gelb v. Royal Globe Ins. Co., 798 F.2d 38, 43 (2d
Cir. 1986).
The claims against the Current AUSA Defendants are set forth
in Counts Five, Six, Eight, Fourteen, and Sixteen.
Count Five
alleges fabrication of evidence, falsifying evidence, obtaining
unlawful evidence, and including such evidence in a pen/trap and
wiretap application.
One basis for these claims is the
allegation that law enforcement listed the wrong phone number in
an affidavit.
Aguiar asserted this same argument in a motion to
suppress and on appeal.
The Court denied the motion to suppress
because Aguiar had failed to show that the error was reckless or
11
intentional.
On appeal, the Second Circuit found that there was
sufficient evidence to support the affidavit.
Aguiar, 737 F.3d
at 263.
Count Six alleges that oral communications were intercepted
without proper authorization.
This Court previously found that
no such conversations were intercepted on the target cell phone
prior to the issuance of an order allowing intercepts.
Aguiar
argued on appeal that a July 2, 2009 court order was invalid
because the United States Attorney’s Office failed to include the
Justice Department’s authorization memo when it applied for an
intercept.
The Second Circuit found that the government had
provided sufficient proof of a complete application.
Id. at 264.
Count Eight alleges that Assistant United States Attorneys
Fuller and Van De Graaf, as well as unknown assistants and court
clerks, falsified evidence related to authorization of the July
2, 2009 Title III wiretap warrant.
This Court found that the
U.S. Attorney’s Office received the proper authorization from
Department of Justice, and the Second Circuit confirmed that a
complete application for authorization was filed with the Court.
Id.
Count Fourteen alleges violations of the Wiretap Act.
discussed previously, that claim is untimely.
As
Moreover, the
allegations of unlawful intercepts were addressed by both this
Court and the Court of Appeals, as discussed with regard to
12
Aguiar’s current Count Six.
In his opposition memorandum, Aguiar argues that several of
his current claims were never fully litigated.
Those claims
include the allegation that the Current AUSA Defendants
fabricated surveillance information from a GPS unit removed from
his car, that the government improperly accessed his MySpace.com
account, and that his calls were rerouted to Boston without
authorization.
The Current AUSA Defendants note that GPS-related
challenges were asserted in a motion to suppress, but concede
that Aguiar’s current fabrication claim was not previously
litigated.
allegations.
They do not address the MySpace.com and rerouting
Accordingly, these allegations are not barred by
collateral estoppel.
As to Aguiar’s remaining claims, however, the fundamental
issues were raised in a prior proceeding, were actually litigated
and decided, and Aguiar had a full and fair opportunity, through
competent counsel, to argue his claims.
Resolution of those
issues led to the consideration of certain evidence by a jury,
which ultimately voted to convict.
Accordingly, the elements of
collateral estoppel are satisfied with respect to those claims.
Aguiar’s final argument against collateral estoppel is that
it is an equitable doctrine, and should not be applied because
the Current AUSA Defendants have unclean hands.
For support, he
again alleges the wrongful interceptions of communications and
13
the use of unlawfully-accessed evidence at trial.
The Second Circuit has acknowledged that “collateral
estoppel is an equitable doctrine—not a matter of absolute right.
Its invocation is influenced by considerations of fairness in the
individual case.”
PenneCom B.V. v. Merrill Lynch & Co., Inc.,
372 F.3d 488, 493 (2d Cir. 2004).
Because collateral estoppel is
an equitable doctrine, “[h]e who comes into equity must come with
clean hands.”
Id. (quoting Keystone Driller Co. v. Gen.
Excavator Co., 290 U.S. 240, 241 (1933)).
This principle, known
as the “doctrine of unclean hands,” established “that the
equitable powers of this court can never be exerted [o]n behalf
of one who has acted fraudulently, or who by deceit or any unfair
means has gained an advantage.
To aid a party in such a case
would make this court the abettor of iniquity.”
PenneCom B.V.,
372 F.3d at 493 (internal quotation marks, brackets, and
citations omitted).
Aguiar has claimed previously that the Current AUSA
Defendants acted unlawfully during his investigation and
prosecution.
With respect to collateral estoppel, the relevant
question is whether any of that alleged misconduct prevented
Aguiar from raising his arguments fully and fairly.
For example,
Aguiar cites Charter Oak Fire Ins. Co. v. Electrolux Home
Products, 882 F. Supp. 2d 396, 398 (N.D.N.Y. 2012), in which the
court held that the plaintiff did not have a fair opportunity to
14
litigate previously because of discovery violations.
In this
case, there is no plausible allegation that the Current AUSA
Defendants acted fraudulently or unfairly such that Aguiar was
unable to fully litigate his claims.
The Court will therefore
apply collateral estoppel to the claims raised in prior
proceedings, and those claims are dismissed.
C.
Heck v. Humphrey
The Current AUSA Defendants next argue that Aguiar’s claims
are essentially another collateral attack on his conviction, and
that finding in his favor would necessarily undermine that
conviction.
In Heck v. Humphrey, 512 U.S. 477, 487 (1994), the
Supreme Court held that “when a state prisoner seeks damages in a
§ 1983 suit, the district court must consider whether a judgment
in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence; if it would, the complaint must be
dismissed.”
It is well established that Heck’s bar applies to
Bivens claims.
Tavarez v. Reno, 54 F.3d 109, 110 (2d Cir. 1995)
(“Given the similarity between suits under § 1983 and Bivens, we
conclude that Heck should apply to Bivens actions as well.”).
Courts must proceed cautiously when applying Heck, as the
Supreme Court has warned against overly-broad applications,
particularly in the event of an allegedly-unreasonable search.
[A] suit for damages attributable to an allegedly
unreasonable search may lie even if the challenged
search produced evidence that was introduced [at
15
trial]. . . . Because of doctrines like independent
source and inevitable discovery, and especially
harmless error, such [an action], even if successful,
would not necessarily imply that the plaintiff’s
conviction was unlawful.
Heck, 512 U.S. at 487 n.7.
The Current AUSA Defendants contend that “without the
evidence collected as a result of the pen/trap and wiretap
warrants that are the focus of Aguiar’s current lawsuit, his
conviction likely would not stand.”
ECF No. 46 at 13 n.4.
Aguiar responds that the Court’s evidentiary rulings were not
critical to his conviction.
He cites this Court’s decision on
his Section 2255 motion, in which the Court noted the volume of
evidence presented by the government.
The Court’s order,
however, noted the significance of the recorded intercepts.
United States v. Aguiar,
No. 2:09-CR-00090-1, No. 2:09-CR-90,
2017 WL 281733 (D. Vt. Jan. 23, 2017).
The Magistrate Judge’s
Report and Recommendation specifically emphasized the importance
of those intercepts: “the interception of wire communications
between members of the conspiracy, pursuant to Title III
intercept orders, and the contemporaneous tracking of their
location were key components of the government’s investigation.”
United States v. Aguiar, No. 2:09-CR-00090-1, 2016 WL 8668505, at
*2 (D. Vt. Aug. 12, 2016).
As the Magistrate Judge’s observation suggests, the
government’s case also included significant tracking evidence,
16
collected as a result of the GPS device that Aguiar now claims
was unlawfully placed and the results of which were fabricated.
The Second Circuit noted in Aguiar’s appeal of his conviction
that “[a]t trial, the government introduced various evidence
developed with the aid of the GPS data, including maps depicting
Aguiar’s travel routes, surveillance photos, and testimony of
officers who made visual observations of Aguiar and his
activities.”
2013).
United States v. Aguiar, 737 F.3d 251, 255 (2d Cir.
In upholding the denial of Aguiar’s motion to suppress,
the Second Circuit made no mention of harmless error, affirming
instead on the basis of the good faith exception to the
exclusionary rule.
Id. at 261.
Aguiar also challenges the government’s search of his
MySpace.com account.
Evidence from that account included
photographs of his vehicles and messages sent from his user
number.
Aguiar, 2016 WL 8668505, at *13.
In his Section 2255
motion, he argued that “[h]ad counsel moved to suppress MySpace
evidence, its direct and derivative evidence would have been
excluded . . . [and] ‘but for counsel’s unprofessional errors,
there is a reasonable probability that the outcome of the
proceedings would have been different.’” Aguiar, No. 2:09-cv-90
(ECF No. 717 at 28-29).
Aguiar made similar Section 2255 claims
with respect to the rerouting of his calls to Massachusetts.
Aguiar, 2016 WL 8668505, at *17-*18.
17
In sum, Aguiar is now attacking the legal and investigatory
tactics that resulted in significant incriminating evidence.
The
use of call intercepts and tracking devices helped law
enforcement identify members of the conspiracy, some of whom
later testified at trial.
Much of the testimony from law
enforcement officers pertained to the use of wiretap and tracking
devices.
Aguiar, 2016 WL 8668505, at *6-*7.
If those same
efforts are now held to be unlawful, the Court’s ruling will
necessarily imply that Aguiar’s conviction was invalid.
The
Court therefore finds that Heck applies to Aguiar’s claims,
including those allegations (fabricated GPS evidence, MySpace.com
search, and rerouted calls) that evaded dismissal under the
All such claims are dismissed
doctrine of collateral estoppel.
without prejudice.
D.
Failure to State a Claim
The Current AUSAs next argue that they are protected by
qualified immunity.
The bulk of their analysis, however, focuses
on the conclusory nature of Aguiar’s claims and his failure to
show personal involvement.
As discussed above, Iqbal requires a
plaintiff to plead facts that show a plausible cause of action.
Federal courts have also held that to bring a constitutional
claim against a federal official, the complaint “must at least
allege that the defendant federal official was personally
involved in the illegal conduct.”
18
Simpkins v. Dist. of Columbia
Gov’t, 108 F.3d 366, 369 (D.C. Cir. 1997).
Aguiar’s allegations
fall short of these standards.
The causes of action involving the Current AUSA Defendants
allege constitutional violations by means of various forms of
misconduct, including fabricating and falsifying evidence and
using evidence that was unlawfully obtained.
Aguiar does not
allege any facts, beyond conclusory statements, to support a
finding of personal involvement by AUSAs Cowles, Van De Graaf, or
Fuller in such misconduct.
Aguiar’s opposition memorandum asks the Court to infer that
the Current AUSA Defendants were “intimately involved in all
aspects of Mr. Aguiar’s criminal investigation,” and highlights
their involvement in warrant applications.
ECF No. 46 at 22.
Even if the Court were to infer such conduct, there is no valid
constitutional claim.
Aguiar’s defense counsel raised
allegations of improper warrants and other violations on several
occasions, and at each stage in the case those arguments were
rejected.
With respect to claims that may not have been raised
previously (e.g. accessing the MySpace.com account), there is no
basis for an inference of AUSA involvement or wrongdoing.
In addition to claims of specific wrongdoing, Aguiar
alleges in Count Sixteen a broad conspiracy to deprive him of his
constitutional rights.
“[C]omplaints containing only conclusory,
vague, or general allegations that the defendants have engaged in
19
a conspiracy to deprive the plaintiff of his constitutional
rights are properly dismissed; diffuse and expansive allegations
are insufficient, unless amplified by specific instances of
misconduct.”
Ciambriello v. Cnty. of Nassau, 292 F.3d 307,
324–25 (2d Cir. 2002).
The claims in this case are both
“diffuse” and “expansive,” wrapping all defendants into a
longstanding conspiracy to land Aguiar in prison.
Such broad
claims against the Current AUSA Defendants are insufficient to
survive their motion to dismiss.
Aguiar’s Wiretap Act claims are similarly flawed.
Aguiar
alleges that defendants intercepted his communications “without
proper authorization.”
He does not allege the Current AUSA
Defendants’ respective roles in those interceptions.
E.
Sovereign Immunity
Finally, the Current AUSA Defendants argue that any claims
against them in their official capacities are barred by sovereign
immunity.
See Robinson v. Overseas Military Sales Corp., 21 F.3d
502, 510 (2d Cir. 1994) (“Because an action against a federal
agency or federal officers in their official capacities is
essentially a suit against the United States, such suits are also
barred under the doctrine of sovereign immunity, unless such
immunity is waived.”).
Aguiar contends that sovereign immunity
does not apply to the extent that he is seeking prospective
injunctive relief, citing Ex Parte Young, 209 U.S. 123 (1908).
20
Ex Parte Young does not save his claims, however, because Bivens
requires that suit “be brought against the federal officials in
their individual capacities.”
added).
Robinson, 21 F.3d at 510 (emphasis
Moreover, Ex Parte Young created a narrow exception for
suits against state officials, while the Current AUSA Defendants
are federal officials.
See Seminole Tribe of Florida v. Florida,
517 U.S. 44, 73 (1996).
Sovereign immunity therefore applies to
all official capacity claims brought against the Current AUSA
Defendants.
F.
Leave to Amend
The Second Circuit has held that a pro se complaint should
be read liberally, and district courts should grant leave to
amend if a “liberal reading” provides “any indication that a
valid claim might be stated.”
Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171
F.3d 794, 795 (2d Cir. 1999)).
But where the issues with a
complaint are “substantive” and cannot be cured by more artful or
specific allegations, repleading would be “futile” and a request
for further amendment “should be denied.”
Id.
Here, many of Aguiar’s claims are insufficiently pled and
highly conclusory.
Ordinarily, the plaintiff in such a
circumstance would be granted leave to file an amended pleading.
However, the claims in this case are also barred on substantive
grounds, such as collateral estoppel, the Heck doctrine, and
21
statute of limitations provisions.
by re-pleading.
Those flaws cannot be cured
The Court therefore declines to grant leave to
amend with respect to the claims being brought against the
Current AUSA Defendants.
The motion to dismiss brought by the
Current AUSA Defendants is granted, and the claims against them
are dismissed.
III. Timothy Doherty
Defendant Timothy Doherty is a former Assistant United
States Attorney for the District of Vermont.
The claims against
Doherty are essentially the same as those brought against the
Current AUSA Defendants.
As a result, Doherty’s motion to
dismiss raises the same defenses to Aguiar’s claims.
For the
reasons set forth above with regard to the Current AUSA
Defendants, the claims against Doherty are dismissed.
IV.
Katherine Myrick
Defendant Katherine Myrick is the Chief of the Drug
Enforcement Agency’s Freedom of Information Act (FOIA) Unit.
After Aguiar was convicted in 2011, he made several FOIA requests
to the DEA for documents related to his criminal case.
Those
documents allegedly included information about GPS evidence and
associated software, the origin of that evidence, and the
government contractor who created the evidence.
Aguiar claims
that the DEA misled him about those documents, and is now suing
Myrick for her role in that alleged deception.
22
He has also
included Myrick in his conspiracy claim against all defendants,
set forth in Count Sixteen of the Complaint.
Aguiar has another
lawsuit, regarding the same FOIA responses, pending against
Myrick and the DEA in the United States District Court for the
District of Columbia.
Aguiar v. Drug Enforcement Agency, No. 14-
cv-240-ESH (D.D.C.).
Aguiar claims in Count Eleven that Myrick violated his
constitutional rights.
FOIA-related actions.
His claims, however, focus solely upon
Myrick argues that Aguiar cannot bring
such claims in a Bivens action because his only available remedy
is under FOIA.
Indeed, FOIA is the type of comprehensive
remedial scheme that precludes a Bivens remedy.
See Johnson v.
Exec. Office for U.S. Attorneys, 310 F.3d 771, 777 (D.C. Cir.
2002).
As discussed previously, the Bivens remedy applies to only a
narrow set of circumstances.
“In the forty-six years since
Bivens was decided, the Supreme Court has extended the
precedent’s reach only twice, and it has otherwise consistently
declined to broaden Bivens to permit new claims.”
Doe v.
Hagenbeck, 870 F.3d 36, 43 (2d Cir. 2017) (footnotes omitted).
The Supreme Court made clear in Abbasi that “expanding the Bivens
remedy is now a disfavored judicial activity.”
1857.
137 S. Ct. at
Moreover, a Bivens remedy is not available where a statute
provides a “comprehensive system to administer public rights.”
23
Spagnola v. Mathis, 859 F.2d 223, 228 (D.C. Cir. 1988) (en banc).
FOIA represents such a scheme.
Johnson, 310 F.3d at 777.
Aguiar’s constitutional claim in Count Eleven is therefore
barred.
The conspiracy allegations against Myrick must also be
dismissed.
To successfully allege a conspiracy, “a plaintiff
‘must provide some factual basis supporting a meeting of the
minds, such that defendants entered into an agreement, express or
tacit, to achieve the unlawful end.’”
Webb v. Goord, 340 F.3d
105, 110 (2d Cir. 2003) (quoting Romer v. Morgenthau, 119 F.
Supp. 2d 346, 363 (S.D.N.Y. 2000)).
“The conspiracy must also be
‘motivated by some racial or perhaps otherwise class-based,
invidious discriminatory animus.’”
Dolan v. Connolly, 794 F.3d
at 296 (quoting Cine SK8, Inc. v. Town of Henrietta, 507 F.3d
778, 791 (2d Cir. 2007) (internal quotation marks omitted)).
In
this case, Aguiar has failed to allege a plausible claim that
Myrick, as the head of the DEA’s FOIA Unit, conspired with the
other defendants, most of whom were involved in the criminal
prosecution that pre-dated the FOIA activity, to deny him his
constitutional rights.
Nor is there a plausible, or conceivable,
allegation that Myrick’s conduct was based upon class-based
animus.
Finally, any claims against Myrick in her official
capacity are barred by sovereign immunity.
dismiss is therefore granted.
24
Myrick’s motion to
V.
Andrew Laudate
Defendant Andrew Laudate is a Supervising United States
Probation Officer in the District of Massachusetts.
In 2006, he
was selected as the U.S. Probation Office representative to the
District of Massachusetts’ Court Assisted Recovery Effort (CARE)
drug court program.
He continues to be involved in the CARE
program.
In 2007, while serving the final portion of his federal
sentence imposed in the District of Vermont, Aguiar reentered the
community through Coolidge House, a Residential Reentry Center
(RRC) in Boston.
While at the RRC, Aguiar requested a transfer
of jurisdiction from Vermont to Massachusetts in order to
participate in the CARE program.
His request was granted, and in
January 2007 he began a period of six years of supervised release
in the District of Massachusetts.
Aguiar was assigned to
Laudate’s caseload, as Laudate was the Senior U.S. Probation
Officer supervising CARE participants in Boston at that time.
The allegations brought against Laudate are set forth in
Counts Twelve and Sixteen.
In Count Twelve, Aguiar alleges that
Laudate violated his constitutional rights by assisting the
Vermont DEA in its criminal investigation, thereby “abandoning”
his role as a federal probation officer.
Aguiar also includes
Laudate in Count Sixteen’s broad conspiracy claim.
Laudate asserts several of the same defenses as his co-
25
defendants, including statute of limitations, qualified immunity,
failure to state a claim, and sovereign immunity.
The
fundamental question in Laudate’s case is whether he violated any
constitutional provisions by providing information to the DEA,
and if so, whether his conduct violated clearly established law
for purposes of qualified immunity.
The factual allegations against Laudate in the Complaint are
sparse, as Aguiar claims that Laudate assisted law enforcement in
tracking his movements, including notifying agents about Aguiar’s
planned trip to Las Vegas.
In his opposition memorandum, Aguiar
elaborates significantly on those allegations.
He first contends
that Laudate failed to report Aguiar’s arrest for a speeding
violation in New Hampshire in 2008, even though the arrest
constituted a violation of Aguiar’s supervised release.
Aguiar
claims that Laudate did not report the violation to the Court
because any resulting incarceration would have interfered with
law enforcement’s ongoing investigation of his criminal
activities.
When Aguiar was arrested for reckless driving in
2009, Laudate again allegedly delayed reporting the violation so
that the criminal investigation could proceed.
Aguiar also claims that Laudate helped law enforcement
agents monitor his movements using warrantless GPS devices;
failed to report that he was traveling out of state; failed to
report that he was driving without a valid drivers license; and
26
allowed agents to search his probation file, which reportedly
contained privileged drug and mental health treatment
information, without a warrant.
Finally, Aguiar contends that
when Laudate conducted home visits in his role as a probation
officer, he was actually searching the home on behalf of law
enforcement.
In response to such claims, Laudate asserts that he is
protected by qualified immunity.
The doctrine of qualified
immunity protects government officials “from liability for civil
damages insofar as their conduct does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known.”
U.S. 800, 818 (1982).
Harlow v. Fitzgerald, 457
The Supreme Court has “repeatedly . . .
stressed the importance of resolving immunity questions at the
earliest possible stage in litigation.”
Hunter v. Bryant, 502
U.S. 224, 227 (1991) (per curiam).
Aguiar claims that Laudate effectively abandoned his role as
probation officer and instead chose to assist law enforcement.
As the Second Circuit has noted, however, “the objectives and
duties of probation officers and law enforcement personnel are
unavoidably parallel and are frequently intertwined. Indeed, it
is difficult to imagine a situation where a probation officer
conducting a home visit in conjunction with law enforcement
officers . . . would not be pursuing legitimate supervised
27
release objectives.”
United States v. Reyes, 283 F.3d 446,
463–64 (2d Cir. 2002) (citing United States v. Martin, 25 F.3d
293, 296 (6th Cir. 1994) (“[P]olice officers and probation
officers can work together and share information to achieve their
objectives.”); United States v. McFarland, 116 F.3d 316, 318 (8th
Cir. 1997) (stating that “[p]arole and police officers may work
together . . . provided the parole officer is pursuing
parole-related objectives”)).
Similarly, the sharing of
probation file information with law enforcement was not clearly
unconstitutional.
See Kaminski v. Hayes, No. 306CV1524CFD, 2009
WL 3193621, at *7 (D. Conn. Sept. 30, 2009) (“Plaintiff has not
identified and research has not revealed any [state] statutes
prohibiting the disclosure of information from a probation file
by a probation officer.”).
Given the Second Circuit’s observations, the Court cannot
conclude that Laudate’s alleged actions violated clearly
established law.
If, as alleged, he shared information with law
enforcement about his home visits, there was no constitutional
violation since such visits are plainly in furtherance of
legitimate supervised release objectives.
And Aguiar has cited
no law for support of his claim that sharing supervised release
files with law enforcement violated his Fourth Amendment rights.
Other allegations of cooperation with law enforcement are
similarly protected.
The claims against Laudate are therefore
28
dismissed.
VI.
Carter and Couture
Defendants Richard Carter and Justin Couture (the “DEA
Defendants”) are DEA agents.
Aguiar claims that Carter
wrongfully placed GPS units on his vehicle while it was parked on
private property, and fabricated GPS evidence.
He alleges that
Couture wrongfully searched his MySpace.com user account records
and communications without probable cause; violated the Stored
Communications Act (SCA) by using an unlawful subpoena to demand
MySpace.com content; used fabricated and unlawfully-obtained
evidence in pen/trap and wiretap applications to the Court;
intercepted Aguiar’s communications without proper authorization;
and violated the Wiretap Act by accessing communications without
proper authorization.
Both DEA Defendants are also included in
Count Sixteen’s conspiracy claim.
The DEA Defendants first argue that Aguiar’s claims are
time-barred.
For reasons set forth above, the limitations period
for Aguiar’s constitutional claims is tolled while he is
incarcerated.
The Wiretap Act claims, however, are barred by
that statute’s two-year limitations period.
18 U.S.C. § 2520(e).
Likewise, “[a] civil action under [the SCA] may not be commenced
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).
29
Aguiar was aware of the
installation of GPS units, the MySpace.com subpoena, and the
intercepted communications prior to trial.
At the very latest,
he knew of the alleged violations at the trial itself.
He
initiated his Wiretap Act and SCA claims against the DEA
Defendants well over two years later.
Those claims are untimely.
The DEA Defendants also assert the defense of collateral
estoppel.
Indeed, the allegations of wrongfully placing GPS
units on his vehicle were fully litigated in a suppression motion
and on appeal.
The MySpace.com issue was litigated in the
Section 2255 proceeding.
Allegations of using fabricated
evidence in pen/trap and wiretap applications were raised and
resolved in suppression motions and on appeal.
Heck also applies to the claims against the DEA Defendants.
Wiretap and tracking techniques utilized by the DEA Defendants
played a fundamental role in the criminal investigation.
Evidence obtained from wiretaps and GPS devices played a
correspondingly significant role in Aguiar’s trial and
conviction.
To declare those investigative practices unlawful,
thereby also calling into question the legitimacy of the fruits
of those investigations, would necessarily imply that Aguiar’s
conviction was invalid.
The claims against the DEA Defendants
are therefore barred by Heck.
Qualified immunity also applies to the GPS claim.
As the
Second Circuit held on direct appeal, “sufficient Supreme Court
30
precedent existed at the time the GPS device was placed for the
officers here to reasonably conclude a warrant was not necessary
in these circumstances.”
262 (2d Cir. 2013).
United States v. Aguiar, 737 F.3d 251,
With respect to the MySpace.com claim, the
DEA Defendants submit that their request for information stored
electronically for more than 180 days was fully authorized by the
relevant statute.
Aguiar counters that, despite the subpoena
stating otherwise, the DEA Defendants acquired information that
had been stored for fewer than 180 days.
To the extent that such
information was delivered, that would have been no fault of the
DEA Defendants, and in any event Aguiar has failed to allege that
such information was used to develop evidence for trial.
With respect to any official capacity claims against the DEA
Defendants, those are barred by sovereign immunity.
Their motion
to dismiss is granted.
VII. Jared Hatch
Defendant Jared Hatch is being sued for his investigatory
role as a member of the Vermont Drug Task Force.
The claims
against Hatch are fundamentally the same as those brought against
the DEA Defendants: fabricating, falsifying, and obtaining
unlawful evidence, including evidence used in pen/trap and
wiretap applications (Count Five); intercepting oral
communications without proper authorization (Count Six);
violation of the Wiretap Act (Count Fourteen); and conspiracy
31
(Count Sixteen).
Hatch offers the same defenses as the those
posed by the DEA Defendants, and the claims against him are
insufficient for the reasons set forth above.
His motion to
dismiss is therefore granted.
Conclusion
The motions to dismiss brought on behalf of the Current AUSA
Defendants (ECF No. 46), Myrick (ECF No. 63), Laudete (ECF No.
84), Doherty (ECF No. 86), the DEA Defendants (ECF No. 94), and
Hatch (ECF No. 99) are hereby granted.
The claims against those
defendants are dismissed without leave to amend.
The only known defendants remaining in the case are Michael
Morris and John Lewis.
Discovery as to all remaining parties
shall proceed forthwith.
DATED at Burlington, in the District of Vermont, this 17th
day of August, 2018.
/s/ William K. Sessions III
William K. Sessions III
District Court Judge
32
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