Boudreau v. Petit

          REPORT AND RECOMMENDATION

          PATRICIA A. SULLIVAN, UNITED STATES MAGISTRATE JUDGE.

         This 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.^[1] 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.^[2] 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.^[3]

         Arguing 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 for damages).

         Boudreau 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.

         The 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. 2007).

         I. Background^[4]

         A. Criminal and Civil Litigation Based on Boudreau's Possession of Child Pornography

         Boudreau's 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^[5] 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.^[6] 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.

         Summoned 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).

         While 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 (D.R.I.)

         (“Boudreau 2013 Case”).

         The 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, ^[7]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.

         A 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.

         More 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).^[8] 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.

         B. Criminal Embezzlement Case

         The 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.^[9] ECF No. 9-2 at 3.

         The 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.

         Because 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 ...