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Aguiar v. Carter

United States District Court, D. Vermont

August 17, 2018

STEPHEN AGUIAR, Plaintiff,
v.
RICHARD CARTER, JUSTIN COUTURE, JARED HATCH, ANDREW LAUDATE, MICHAEL MORRIS, JOHN LEWIS, UNKNOWN U.S. 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.

          OPINION AND ORDER

          WILLIAM K. SESSIONS III DISTRICT COURT JUDGE.

         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 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 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 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 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. Aguiar filed his Complaint in this case on July 17, 2017. The statute of limitations for constitutional claims against federal officials is the same as the state statute of limitations for personal injury actions. See Gonzalez v. Henry, 802 F.3d 212, 219-20 (2d Cir. 2015). 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. 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.” 12 V.S.A. § 551(a). 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 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. The case law suggests otherwise. 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. 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. 403 U.S. at 389, 395-97. 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 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.” 18 U.S.C. 2520(e). 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. ...


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