United States District Court, D. Rhode Island
REPORT AND RECOMMENDATION
PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants' Motion to Stay
this litigation until the conclusion of related state
criminal proceedings against Plaintiff Jason Boudreau. ECF
No. 9. On February 17, 2015, Boudreau was arraigned in
Providence County Superior Court on a charge that he had
embezzled from his former employer, Automatic Temperature
Controls, Inc. (“ATC”). Previously, in 2012 and
2014, Boudreau was convicted on state felony charges of
second degree child molestation, possession of child
pornography, larceny and receiving stolen
goods. The state embezzlement charge had yet to
go to trial when, on December 28, 2015, Boudreau was charged
in this Court with possession of child pornography. Noting
Boudreau's “abysmal” record of noncompliance
with previous court-ordered obligations, this Court ordered
that he be detained. Meanwhile, proceeding pro se, on
June 19, 2017, Boudreau filed this civil case against the
principals of ATC, Steve, John and Donald Lussier (“the
Lussiers”); Warwick Police Detective Kevin Petit; the
City of Warwick; the Warwick Police Department; the Rhode
Island State Police; and two State Police officers, James
Brown and Nicholas Rivello (collectively,
“Defendants”). Boiled to its essence,
Boudreau's lengthy complaint (the
“Complaint”) alleges that the state embezzlement
charge was concocted by the Lussiers and Detective Petit, in
conspiracy with the State Police, based on false statements
and fabricated, altered and destroyed evidence, in order to
retaliate against Boudreau for his 2013 filing of a §
1983 federal lawsuit against the Lussiers, Detective Petit
and the Rhode Island State Police, alleging they wrongfully
intercepted the electronic communications that formed the
basis for his 2014 child pornography conviction, in
contravention of 28 U.S.C. § 2511.
that the factual and legal issues presented in the present
case overlap significantly with the parallel state criminal
embezzlement charge, Defendants have jointly moved to stay
this civil case until the conclusion of the state criminal
case. Citing Wallace v. Kato, 549 U.S. 384 (2007)
and Guerro v. Mulhearn, 498 F.2d 1249 (1st Cir.
1974), Defendants contend that litigation of the civil
claims, all of which are premised on Boudreau's
allegation that the state criminal embezzlement charge was
fabricated, will undermine and interfere with the state
criminal proceeding. Moreover, they argue that the civil
litigation may be unnecessary because some or all of the
claims may ultimately be subject to dismissal under Heck
v. Humphrey, 512 U.S. 477, 485 (1994) (barring
collateral attack on criminal conviction through civil suit
counters that it is premature to anticipate that his claims
will be Heck-barred and, in any event, Heck
will not be applicable because the civil and criminal cases
lack the requisite identity of issues, because his civil case
relates to events that occurred after the events in issue in
the criminal case. In addition, he asserts that, due to the
pending federal child pornography charges, his state criminal
case for embezzlement has stalled and will remain moribund,
even as potentially exculpatory memories fade and evidence is
lost. If this civil case is stayed until after the resolution
of the already-delayed state embezzlement case, he argues
that he may be deprived of a meaningful opportunity to assert
his constitutional rights.
motion to stay has been referred to me pursuant to 28 U.S.C.
§ 636(b)(1)(A) for determination. However, because the
motion may have dispositive impact on Plaintiff's case, I
have addressed it by report and recommendation. See
Reynaga v. Cammisa, 971 F.2d 414, 416-17 (9th Cir. 1992)
(magistrate exceeded authority where stay effected
involuntary dismissal of case); Pass & Seymour, Inc.
v. Hubbell Inc., 532 F.Supp. 2d, 418, 426 n.7 (N.D.N.Y.
Criminal and Civil Litigation Based on Boudreau's
Possession of Child Pornography
history is a tangle of multiple criminal prosecutions brought
against him, overlapping with civil litigation initiated by
him. The present story begins when Boudreau was hired by the
Lussiers as ATC's finance manager in September
2009. In that capacity, he managed ATC's payroll and
accounts payable and paid himself “bonuses”
totaling more than $34, 000 between September 2010 until May
2011. ECF No. 1-1 ¶¶ 83-93, 111, 258. Illustrated
in both the text of and the exhibits to the Complaint, he and
the Lussiers hotly dispute whether these bonuses were
authorized. See ECF No 1-1 at 55-56, 85-87, 98-99.
Boudreau claims that all of the money he paid himself was
appropriate. ECF No. 1-1 ¶¶ 47, 57-64, 83-93, 346.
As the Lussiers later told the State Police, an investigation
of Boudreau's financial dealings was triggered in June
2011 by a bounced check. ECF No. 1-1 at 88-89. This resulted in
the discovery that ATC's checking account balance was off
by $60, 000. Id. In the same time period, ATC
discovered that Boudreau was spending his time visiting child
pornography sites on his office computer during the work day.
Id. The latter discovery led to his immediate firing
in June 2011. ECF No. 1-1 ¶ 126 & at 71.
by ATC, Detective Petit and the Cranston and Warwick Police
became involved, Boudreau was charged and, in 2014, convicted
on a plea of nolo contendere to possession of the
child pornography found on the ATC computer. Boudreau v.
Automatic Temperature Controls, Inc., C.A. No. 16-646S,
2017 WL 3671019, at *2 & n.3 (D.R.I. Apr. 28, 2017),
adopted in part, 2017 WL 2829685 (D.R.I. June 30,
2017); Boudreau v. Lussier, C.A. No. 13-388S, 2015
WL 7720503, at *1-5 (D.R.I. Nov. 30, 2015); Boudreau v.
Lussier, No. CA 13-388S, 2014 WL 651536, at *1 (D.R.I.
Feb. 19, 2014).
the criminal charge of possession of child pornography was
pending and continuing after it resolved in 2014 with his
nolo plea, Boudreau launched a series of civil
actions in state court, as well as in this Court, against the
Lussiers, ATC, their attorneys, their software vendor and the
law enforcement officials involved with the investigation and
prosecution of the criminal child pornography case. First, on
May 28, 2013, he filed a pro se action in this Court
under § 1983 and the Electronic Communications Privacy
Act, 18 U.S.C. §§ 2511, 2520 (“ECPA”),
against the Lussiers, another ATC employee, Detective Petit,
various Cranston police officers, the Cities of Cranston and
Warwick, and the Rhode Island State Police, alleging that the
searches of his vehicles, home and office computer, including
the alleged interception of electronic transmissions from the
office computer, violated his Fourth Amendment rights and the
ECPA. Boudreau v. Lussier, C.A. No. 13-388WES
Boudreau 2013 Case grew into a massive piece of
litigation. By the time summary judgment entered against
Boudreau in November 2015 on the merits of all of his claims,
Boudreau had flooded the record with
fifty-three motions, including three for injunctive relief.
In one illustrative incident pertinent to the instant motion,
Boudreau filed an emergency motion for temporary restraining
order and preliminary injunction based on the warrantless
search by the State of his electronic devices. Boudreau
2013 Case, ECF No. 247. The Court denied the motion,
finding that the search was a standard probationary check on
a convicted sex offender, pursuant to Boudreau's express
written waiver of his Fourth Amendment rights. Id.,
Text Order, July 31, 2015. The Court further found that
Boudreau “chose not to advise the Court of these
probation conditions” and that Boudreau's motion
was “baseless.” Id. The Court invoked
the holding of the United States Supreme Court in Younger
v. Harris, 401 U.S. 37 (1971), finding that,
“[Boudreau's] attempt to use this Court to
interfere with the State's supervision of his conditions
of criminal probation requires abstention under the
Younger doctrine.” Id. The matter was
referred for a report and recommendation regarding whether
the filing was made in good faith and, if not, whether
Boudreau should be sanctioned. Id. Summary judgment
terminated the proceeding before this issue was resolved.
second civil case was launched in this Court on August 6,
2013, when Boudreau sued the Lussiers and Detective Petit for
essentially the same conduct addressed in the Boudreau
2013 Case. Boudreau v. Lussier, C.A.
No. 13-577MML (D.R.I.). This complaint was dismissed without
prejudice because of the overlap of claims and parties with
the prior case.
recently, after his 2014 felony conviction for possession of
child pornography, Boudreau continued to file civil cases
based on claims concerning the events that culminated in that
conviction. In August 2016, he sued ATC and a software
company in Rhode Island Superior Court, reprising the claim
that ATC intercepted his electronic communications. After the
case was removed to this Court, the federal claims were
dismissed as time barred, and the state-law claims were
dismissed based on the lack of federal jurisdiction.
Boudreau v. Automatic Temperature Controls, Inc.,
C.A. No. 16-649S, 2017 WL 2829685 (D.R.I. June 30,
2017). And on December 20, 2016, Boudreau sued
the Lussiers, one of ATC's employees, ATC's law firm,
and the software company in Providence County Superior Court,
claiming that the software used on his office computer to
detect child pornography violated the Rhode Island Wiretap
Act, the Rhode Island Computer Crimes Act, and his right to
privacy pursuant to R.I. Gen. Laws § 9-1-28.1. The case
was removed to this Court in March 2017 (C.A. No. 17-090WES),
where Boudreau's scorched-earth approach to litigation
resulted in two motions to remand, a motion for
reconsideration, a motion to certify an interlocutory appeal
and a motion to disqualify counsel for the Lussiers. All were
denied. Midway through this deluge, the Court ordered that
Boudreau obtain prior written approval before filing any
additional motions or other papers. C.A. No. 17-090WES, ECF
No. 20. As of this writing, defendants' motion for
summary judgment is pending. ECF No. 41.
Criminal Embezzlement Case
tale of the criminal embezzlement case takes the reader back
to June 2011, when the Lussiers uncovered that Boudreau was
using his office computer to view child pornography. ECF No.
1-1 at 88-89. As the Lussiers told law enforcement, during
the same time period, they also examined Boudreau's
financial dealings and discovered an array of problems,
including that he was paying himself unauthorized bonuses. A
month after Boudreau was fired in June 2011, this charge was
reported to the Rhode Island Department of Labor and
Training, where it was ignored. ECF No. 1-1 ¶¶
131-32 & at 55-56. According to the Complaint, it was not
raised again until two years later, on July 30, 2013, when
one of the Lussiers, accompanied by Detective Petit of the
Warwick Police, who had been involved with the investigation
of the child pornography charge, was interviewed by the Rhode
Island State Police regarding ATC's claim that Boudreau
had paid himself unauthorized bonuses. ECF No. 1-1
¶¶ 191-237. The Complaint alleges that nothing
happened for almost nine more months until April 16, 2014,
when the State Police again interviewed the Lussiers. ECF No.
1-1 ¶ 241. Following that interview in May 2014, search
warrants were issued for bank records. ECF No. 1-1
¶¶ 262-63. In June 2014, Boudreau was arrested on
the charge of embezzlement. ECF No 1-1 ¶ 266. He was
arraigned in Rhode Island Superior Court on February 17, 2015
and an attorney entered an appearance on his
behalf. ECF No. 9-2 at 3.
Superior Court conducted eight pretrial conferences between
April and December 2015, with repeated continuances at the
request of Boudreau's attorney. ECF No. 9-2 at 3; ECF No.
15 at 1. Then, on December 28, 2015, a federal arrest warrant
issued on new charges of possession of child pornography.
United States v. Boudreau, CR No. 16-011JJM, ECF No.
3. Boudreau was arrested on December 30, 2015; a detention
hearing held the same day in this Court resulted in an order
of detention, based, among other reasons, on the strength of
the evidence and Boudreau's previous noncompliance with
court-ordered obligations. Id., ECF No. 6. Boudreau
remains at the Wyatt Detention Facility.
he is in federal custody, Boudreau failed to appear at the
January pretrial conference held by the Rhode Island Superior
Court on the state embezzlement charge. ECF No. 9-2 at 3.
Based on his nonappearance, a warrant issued on February 2,
2016. Id. Boudreau advised the Superior Court by
letter of his circumstances, as well as of his willingness to
appear by video conference. ECF Nos. 9-2 at 3, 14 at 1.
Boudreau claims that discovery in the embezzlement case
remains incomplete and that the State has done nothing to
move the case forward since his detention; similarly,
Boudreau's court-appointed attorney has done nothing to
move the case due to a policy implemented by his office to
delay until a pending warrant is quashed. ECF Nos. 14 at 2,
15 at 2, 16 at 1. Defendants advise that Boudreau's right
to request transfer to state custody for disposition of the
state criminal charge, pursuant to the ...