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Brewer v. Hashim

United States District Court, D. Vermont

June 27, 2017

Robert Brewer, Plaintiff,
Nader Hashim, Defendant.

          OPINION AND ORDER (Docs. 10, 14, 17)

          John M. Conroy United States Magistrate Judge

         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. (Id.)

         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.


         I. Factual Background

         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)).

         A. 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 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.)

         B. 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 states:

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., ¶ 36.)

         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.)

         II. Procedural Background

         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-cv-958, 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 [60] 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, 2006.”)


         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 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.)

         I. Standard of Review

         A. 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 ‚Äúplausible claim ...

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